July 1983 

Commission Decisions 

7-15-83 Jones & Laughlin Steel Corp. PENN 81-96-R Pg. 1209 

Administrative Law Judge Decisions 

7-06-83 Monterey Coal Co. LAKE 82-97 Pg. 1223 

7-08-83 Industrial Generating Co. CENT 79-203 Pg. 1240 

7-11-83 James Eldridge v. Sunfire Coal Co. KENT 82-41-D Pg. 1245 

7-11-83 Jimmy Sizemore & David Rife v. Dollar Branch KENT 83-130-D Pg. 1251 

Coal Co. 

7-12-83 American Borate Co. WEST 81-301-M Pg. 1256 

7-15-83 Mich Coal Co. CENT 83-4 Pg. 1262 

7-15-83 Arroyo Mining Co. CENT 83-20 Pg. 1264 

7-15-83 Mishbucha Enterprises, Ltd. PENN 83-80 Pg. 1266 

7-15-83 Macasphalt, Inc. SE 83-26-M Pg. 1268 

7-15-83 C.J. Langenfelder & Son, Inc. VA 83-7 Pg. 1271 

7-15-83 Humphreys Enterprises, Inc. VA 83-16 Pg. 1273 

7-15-83 Viking Mining Corp. VA 83-17 Pg. 1276 

7-15-83 Yakima Cement Products Co., Inc. WEST 83-37-M Pg. 1278 

7-15-83 Kaiser Sand & Gravel Co. WEST 83-64-M Pg. 1281 

7-15-83 Ridge Land Co. WEVA 83-171 Pg. 1283 

7-18-83 R&S Coal Co. CENT 82-105/106 Pg. 1285 

7-18-83 San Juan Coal Co. CENT 83-10 Pg. 1291 

7-18-83 Abraxis Coal Co., Inc. KENT 83-44 Pg. 1293 

7-18-83 Mercer Lime & Stone Co. PENN 83-72-M Pg. 1296 

7-18-83 Power Operating Co., Inc. PENN 83-90 Pg. 1299 

7-18-83 D. L. & P. Coal Co., Inc. VA 83-29 Pg. 1301 

7-18-83 Energy Coal Corp. WEVA 83-63 Pg. 1304 

7-19-83 R & S Coal Co., Inc. CENT 82-107 Pg. 1307 

7-19-83 Black Beauty Coal Co., Inc. LAKE 83-53 Pg. 1310 

7-19-83 Crescent Hills Coal Co., Inc. PENN 82-326 Pg. 1313 

7-19-83 Ansco, Inc. PENN 83-67 Pg. 1316 

7-19-83 Dean Coal Co. SE 82-60 Pg. 1318 

7-19-83 Eastover Mining Co. VA 83-18 Pg. 1320 

7-19-83 Magma Copper Co. WEST 82-208-M Pg. 1323 

7-19-83 Casper Concrete Co. WEST 83-30-M Pg. 1325 

7-26-83 Thurber Coal Co. CENT 83-24 Pg. 1328 

7-26-83 Maiden Mining Co. WEVA 83-183 Pg. 1331 

7-27-83 U.S. Steel Mining Co., Inc. PENN 82-335 Pg. 1334 

7-27-83 Russell Collins & Virgil Kelley v. MSHA EAJ 83-1 Pg. 1339 

7-28-83 Servtex Materials Co. CENT 82-31-M Pg. 1359 

7-29-83 Ray Ward v. Volunteer Mining Corp. SE 82-55-D Pg. 1367 

7-29-83 C F & I Steel Corp. WEST 82-184-M Pg. 1376 
Commission Decisions 
JULY 

The following case was Directed for Review during the month of July: 

Secretary of Labor, MSHA v. TAMMSCO, Inc., and Harold Schmarje, Docket 

Nos. LAKE 81-190-M, LAKE 82-65-M (Judge Koutras, June 9, 1983) 

No reviews were filed in which a Denial was issued. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATiON (MSHA) 

and 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 15, 1983 

Docket No. PENN 81-96-R 

UNITED MINE WORKERS OF AMERICA 

v. 

JONES & LAUGHLIN STEEL CORPORATION 

DECISION 

This case arises under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V 1981), and involves the 

interpretation of the ~ndatory safety standard contained in section 

303(d)(l) of the Act, 30 U.S.C. § 863(d)(l)(l976), and the identical 

implementing standard, 30 C.F.R. § 75.303. 1/ For the reasons that 

1/ Section 303(d)(l) of the Mine Act, and 30 C.F.R. § 75.303, provide 

in part: 

[l] Within three hours immediately preceding the beginning of 

any shift, and before any miner in such shift enters the active 

workings of a coal mine, certified persons designated by the 

operator of the mine shall examine such workings and any other 

underground area of the mine designated by the Secretary or his 

authorized representative. [2] Each such examiner shall examine 

every working section in such workings and shall make tests in each 

such working section for accumulations of methane with means 

approved by the Secretary for detecting methane and shall make 

tests for oxygen deficiency with a permissible flame safety lamp or 

other means approved by the Secretary; examine seals and doors to 

determine whether they are functioning properly; examine and test 

the roof, face, and rib conditions in such working section; examine 

active roadways, travelways, and belt conveyors on which men are 

carried, approaches to abandoned areas, and a~cessible falls in 

such section for hazards; test by means of an anemometer or other 

device approved by the Secretary to determine whether the air in 

each split is traveling in its proper course and in normal volume 

and velocity; and examine for such other hazards and violations of 

the mandatory health or safety standards, as an authorized representative of the Secretary may from time to time require. [3] Belt 

conveyors on which coal is carried shall he examined after each 

coal-producing shift has begun. [Sentence numbers added.] 

(footnote 1 continued) 

83-7-7 
follow, we affirm the administrative law judge's holding that coa.1-

carrying conveyor belts are specifically excepted from this mandatory 

standard's requirements for pre-shift examination. 2/ We emphasize 

at the outset, however, that we are not deciding whether all entries 

around belt conveyors are "active workings," and subject to some form 

of inspection under the first sentence of the standard, because that 

issue was not litigated below. 

On February 17, 1981, Jones & Laughlin Steel Corporation was 

issued a citation under section 104(d)(l) of the Mine Act alleging 

that it had violated 30 C.F.R. § 75.303 by not pre-shift examining 

certain coal-carrying conveyor belt "flights"--that is, sections of 

the conveyor beltline system. See Bureau of Mines, U.S. Dept. of 

the Interior, A Dictionary of M"iri:ing Mineral, and Related Terms 440 

(1968), On February 19, 1981, an order of withdrawal was issued 

under section 104(d)(l) for another alleged failure to pre-shift 

coal-carrying conveyor belt flights. On both occasions miners had 

entered the area where the beltlines were located and begun working 

before an examination of the beltline had been conducted. Jones & 

Laughlin's Vesta No. 5 Mine, where the citation and order were issued, 

is an underground coal mine in which coal haulage is accomplished 

largely by a conveyor belt system. 

Jones & Laughlin contested the citation and order and a hearing 

was held before a Commission administrative law judge. At the hearing, 

Jones & Laughlin and the Secretary of Labor stipulated that the belts 

in question carried coal, not persons, and that coal was produced on 

the shifts during which the citation and order were written. The 

parties also agreed that an examination "of the nature specified in 

30 C.F.R. § 75.303" was made, but was not conducted within three 

hours preceding the beginning of the shift, or before miners entered 

and began to work in the areas cited. The belt conveyors were 

stipulated to be in "good condition" at the time of the citation 

and withdrawal order. ]./ 

footnote 1 cont'd. 

Further, section 318(g) of the Mine Act and the Secretary's 

standards identically define key terms used in section 303(d)(l): 

"[W]orking section" means all areas of the coal mine from the 

loading point of the section to and including the working faces, 

"active workings" means any place in a coal mine where miners 

are normally required to work or travel. 

30 U.S.C. § 878(g)(3) and (4); 30 C.F.R. § 75.2(g)(3) and (4). Y The judge's decision is reported at 3 FMSHRC 1721 (July 198l)(ALJ). 

]./ The United Mine Workers of America ("UHWA") intervened after the 

hearing. 

l~J.O 
We granted petitions of the Secretary and the ln~lA for discretionary review of the judge's decision. 4/ On review the UMWA.asserts that 

the coal-carrying conveyor belts are-"active workings" and must be preshift examined under the first sentence of the standard, and that the 

third sentence requires a separate on-shift examination. The UMWA 

further asserts that these two examinations cannot be combined. As 

discussed below, we reject the UMWA's position that the conveyor belt 

equipment at issue is, in and of itself, an active working. Given 

our disposition of this case, we need not address the UMWA's other 

assertions. · 

The Secretary's position is more involved. He does not argue 

that coal-carrying beltlines are "active workings." Further, he 

concludes, as we do, that there is no requirement that coal-carrying 

belt equipment be pre-shift inspected. Br. 10-13. He argues, however, 

that section 303(d)(l) does require a pre-shift examination of all 

areas in coal-carrying conveyor belt entries where miners will be 

assigned to work on the upcoming shift. The Secretary asserts that, 

when examining belts on-shift, both the entry and the belt must be 

examined if the entry has not been pre-shift inspected. The Secretary would allow these two inspections to be merged in certain 

circumstances. 

The Secretary thus asks us to decide whether the areas surrounding 

the coal-carrying belt equipment must be pre-shift inspected under the 

first sentence of the standard, which refers to "active workings." 

After careful examination of the record, we are satisfied that the 

Secretary did not present to the judge this complex argument distinguishing between the belt equipment and the entries in which 

the equipment is located. Further, the citation and order in this 

case both refer to "conveyor belt flights"--as noted above, specific 

sections of conveyor belt equipment. In short, the Secretary failed 

to litigate below the argument he now asks us to review. As a result, 

we have an incomplete and unsatisfactory record on this important 

question. Similarly, the judge did not decide this issue, and his 

opinion does not contain any discussion of a distinction between belt 

!!._/ The American Mining Congress, Bituminous Coal Operators Association, 

and Keystone Bituminous Coal Association filed briefs as amici curiae. 

Keystone Bituminous Coal Association in its amicus brief requested that 

the Commission issue a declaratory order to the Secretary requiring him 

to publish his interpretive and policy memoranda regarding 30 C.F.R. 

§ 75.303 in the Federal Register. An amicus curiae cannot control the 

course of litigation and, generally, may not request relief. See, for 

example, Ring v. Roadway Express, Inc., 485 F.2d 441, 452 (5th Cir. 

1973); lB J. Moore, T. Currier, Moore's Federal Practice ,[0.411[6] (2d 

ed. 1982). Keystone lacks standing to ~ake this request, and therefore 

it is denied. Further, no request for a declaratory judgment was 

presented to the administrative law judge, or in the petitions for 

discretionary review and, thus, such a request is not properly before 

us. 30 u.s.c. § 823(d)(2)(A)(iii) and B. 

1211 
equipment and the entries in which the equipment is located. Absent 

a showing of good cause, section 113(d)(2)(A)(iii) of the Mine Act 

precludes our review of questions of law and fact not presented to 

the judge. 30 U.S.C. § 823(d)(2)(A)(iii). Such good cause has not 

been demonstrated. 5/ 

Under these circumstances, our decision concerns only coalcarrying belt equipment, which is specifically treated in the third 

sentence of section 303(d)(l), and which the Secretary agrees need 

not be pre-shifted. We interpret the judge's decision as referring 

to belt equipment only, and reject any reading to the contrary. If 

the Secretary wishes to litigate the question of whether coalcarrying beltline entries must be pre-shifted, he should in a future 

case issue a citation and file pleadings and briefs clearly raising 

that issue. We now turn to the narrow question before us. 

The inspection requirements imposed by section 303(d)(l) are 

to be determined by reading that section as a whole. Elementary 

principles of statutory construction require that the individual 

inspection requirements be read in an harmonious and consistent 

manner. Philbrook v. Glodgett, 421 U.S. 707, 713 (1975). See 2A 

Sands, Sutherland Statutory Construction§ 46.05 (4th ed. 1973). 

The first sentence of section 303(d)(l), which requires pre-shift 

inspection of "active workings," is the most general of the three 

sentences. Thereafter, Congress proceeded to impose more particular 

inspection requirements. In the second sentence of that section, 

Congress required pre-shift examination of "working sections," a less 

inclusive area than "active workings." In the second sentence, 

Congress also specifically mandated inspections of particular areas 

and objects in underground mines, e.g., seals and doors, roofs, faces, 

and ribs, and active roadways, travelways, "and belt conveyors on 

which men are carried ••• " (Emphasis added.) Finally, in the third 

sentence Congress specifically directed, "Belt conveyors on which coal 

is carried shall be examined after each coal-producing shift has begun." 

(Emphasis added.) 

Based on the structure of section 303(d)(l), as well as on the 

definition of "active workings" in section 318(g) (3)(quoted inn. 1 

above), we first conclude, in agreement with the Secretary,__t_b.at---

coal-carrying equipment per se is not an active workirrg:-___ Active 

5/ Indeed, we note that the Secretary's position has evolved 

through several stages. The judge held below that the Secretary had 

no "consistent or coherent construction of the section in controversy" 

and was "unable to cite any written policy or procedure" describing 

his interpretation of the standard at issue. 3 FMSHRC at 1733. The 

Secretary's current position was not refined and clarified until his 

reply brief to us in this case and was not announced to the public 

until 3 months after we granted review in this case. Further, there 

are discrepancies between his present position and relevant material 

in the inspector's manual in effect at the time of the judge's decision. 

1 '.' f ·~) 

...L ·~· _j_ (..., 
workings generally are areas or places in a mine, not equipment. !:_/ 

As we have emphasized above, we do not decide here whether· the entries 

or areas surrounding the belt equipment are active workings. 

Further, in section 303(d)(l), Congress distinguished between 

coal-carrying beltlines and those that carry miners. Congress in 

the second sentence of the standard required pre-shift inspection 

of man-carrying belts, and, in the third sentence, required on-shift 

inspection of coal-carrying belts. These discrete references to 

different belt functions, and clear differences in inspection requirements, demonstrate congressional knowledge of the operation and use 

of conveyor belt systems in coal mines. Given this evident 

congressional understanding and the specific inspection requirements 

imposed as to each type of conveyor belt system, we conclude that 

coal-carrying conveyor belts do not have to be pre-shifted. 

Our construction of section 303(d)(l) is supported by the 

legislative history. Section 303(d)(l) of the Mine Act was adopted 

without change from the 1969 Coal Act, and the legislative history 

of the Mine Act does not discuss this section. Accordingly, we look 

to the legislative history of the 1969 Coal Act and the intent of 

the original promulgators of this section. Section 303(d)(l) of the 

1969 Coal Act was a revision of a 1952 Coal Act inspection provision 

that did not expressly mention beltlines. See section 209(d)(7) of 

the 1952 Coal Act, 30 U.S.C. § 471 ~seq. (1964) (repealed 1969). 

In the process of amending the provisions of the 1952 Act, the 

Senate passed a bill that provided in part that "all belt conveyors" 

shall be pre-shift examined. S. 2197, 9lst Cong., 1st Sess. § 204(d) 

(1)(1969) reprinted in Senate Subcommittee on Labor, Committee on Labor 

and Public Welfare, 94th Cong., 1st Sess., Legislative History of the 

Federal Coal Mine Health and Safety Act of 1969, Part 1 at 815-16 (1975) 

("Legis. Hist."). The bill to amend the 1952 Act that passed the House 

required pre-shift examination of "all belt conveyors on which men are 

carried"; it also contained a sentence not found in the Senate version: 

"Belt conveyors on which coal is carried shall be examined after each 

coal-producing shift has begun." H.R. 13950 § 303(d)(l), Legis. Hist., 

Part 1 at 1417. 

The Conference Committee adopted neither all of the Senate version 

nor all of the House version. Instead, a hybrid provision appearing in 

the Conference Report was enacted as section 303(d)(l) of the Coal Act, 

and was re-enacted as section 303(d)(l) of in the Mine Act. Legis. Hist., 

Part I at 1470-71; section 303(d)(l) of the Mine Act (quoted above, 

n. 1). The statutory standard enacted by Congress adopted the House 

language requiring pre-shift examination of conveyor belts that carry 

6/ To the extent that the judge's decision might be read as holding 

that the belt equipment involved in this case is an "active working," 

we disagree. We agree with the judge, however, that these belt 

conveyors are not within the definition of "working section" in the 

Hine Act. Section 318(g) (3) (quoted in n. l above). 

1213 
persons, and examination of coal-carrying belts "after each coal-producing shift· has begun." Thus, Congress rejected the prop.osed requirement for pre-shift examination of all belt conveyors. We agree with the 

judge that this factor is important in determining congressional intent. 

3 FMSHRC at 1732-33. Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 

199-200 (1974). 7 I 

For the foregoing reasons, we hold that section 303(d)(l) does not 

require pre-shift inspection of coal-carrying beltlines. Rather, that 

belt equipment must be examined, pursuant to the third sentence of 

section 303(d)(l), "after each coal producing shift has begun." We 

leave for another day the question of whether entries in which coalcarrying beltlines are located must be pre-shift-inspected.§_/ 

Accordingly, on the bases explained above the 

affirmed and the citation and withdra al order 

is 

Clair Nfelson, /Commissioner 

7/ Further evidence of congressional inte~ is ~und in the sectionby-section analysis and explanation presented by/Senator Williams, a 

conferee and manager of the bill, to the Senat~jon its debate on the bill 

that became the 1969 Coal Act. Concerning ~~on 303(d), this analysis 

states: 

Subsection (d) sets forth requirements that the 

operator must follow for preshift examinations. This [sic] 

provisions are similar to the 1952 act provisions, ••• 

except for several additional requirements including •.• 

an examination of belt conveyors on which men are carried 

before each shift, [and]- an examination of coal carrying 

belt conveyors after each shift begins ••.• 

Legis. Hist., Part I at 1610 (emphasis added). This explanation hy a 

key conferee also clearly indicates that Congress distinguished between 

conveyor belts that carry persons and those that carry coal, and that 

Congress intended that inspections of coal-carrying belts occur after 

coal-producing shifts begin. 

8/ Our resolution of this case makes it unnecessary to decide whether pre-shift and on-shift inspections may be combined in some 

circumstances, a question on which the Secretary and the UMWA differ. 

1 '.) ·f j f ~ ...l,. I 
Commissioner .Lawson dissenting: 

Plato observed that "The life which is unexamined is not worth 

living." Bartlett's Familiar Quotations 93 (14th ed. 1968). The mine 

which is unexamined, however, may snuff the life and moot its examination. 

Progress in the two millenia since Plato has been hard won, but one would 

hope we have advanced beyond requiring helots to face the perils of an 

uninspected mine. 

The majority nevertheless is determined to avoid deciding whether 

the uninspected entries in which these miners were working, and in which 

these coal carrying conveyor belts were located, are active workings, 

and therefore subject to preshift inspection. I find this misdirected 

diligence to be extraordinary given the operator's concession that these 

are active workings 1/ and since this is the central issue before us, 

on which the Secretary's and UMW's appeals are premised. 

The situation here presented is one of frequent, indeed, daily 

repetition, at virtually every coal mine in the nation, and my colleagues' 

decision fails to provide future guidance for the industry, the miners, 

and the Secretary. 

The assertion that the question of " ..• whether the areas surrounding 

the coal carrying belt equipment must be preshift inspected •.. " was not 

presented by the Secretary to the judge below is simply wrong. Slip op. 

at 3. Contrary to the majority's determination, the language of the 

citation, withdrawal order, and action to terminate was directed towards 

this operator's failure to preshift examine the mine entry or area in 

which the equipment was located. ]:_! Indeed, in my view, a violation is 

established whether or not the citation was of the area, or the area 

with the equipment therein, so long as the mine entry or area was part 

of the cited locale. Here, of course, there is no dispute that this 

area was not preshift examined. Tr. 7. 

The citation stated: 

Evidence indicated that the A, B, and C conveyor belt 

flights of 44 Face had not been preshift examined for 

the day shift. An entry was not in the mine examiner's 

report or at the date board along the belt flights indicating that an examination was made before workmen of 

the day shift entered the area along each belt flight. 

[Emphasis added.] 

1__/ J&L admitted the cited areas were active workings before this Commission. 

Tr. oral arg. 33-35. See also Tr. 18-19. 

2/ "Entry" is defined as: a. In coal mining a haulage road, gangway or airway 

to the surface. b. An underground passage used for haulage or ventilation, or 

as a manway •.. c. A coal heading. Bureau of Mines, U.S. Department of Interior, 

A Dictionary of Mining, Mineral and Related Terms, at 389 (1968). 

1" ·• .· 

r-:.. ...l ~) 
Similarly, in the withdrawal order, alleging a violation of the same 

standard and issued two days after the citation, the insp~ctor wrote, in 

describing the "Area or Equipment": 

The area not preshifted was the 1 Face conveyor belt 

haulage A and B flights. [Emphasis added.] 

Further, the Secretary's Opposition to J&L's application for temporary 

relief--filed by the Secretary on March 19, 1981, following the citation 

(February 17, 1981) and order (February 19, 1981) contained the following 

statements: 

b. MSHA not only can cite an explicit requirement of 

30 CFR 75.303 which mandates preshift examinations 

of conveyor belt (and other) entries regardless of 

the transportation of men, it can show that this 

requirement was the basis for the issuance of the 

subject citation and order. 

c. The holding of the Consol case specifically dealt 

with on-shift examination, and therefore is not 

advisory precedent for this case where the material 

issue centers upon preshift examinations of areas 

where miners are required to work or travel. 

[Emphasis added.] 

See also Tr. 40, 47 (testimony of Inspector Beck). 

The issue of failing to preshift the areas cited where miners were 

observed working along coal carrying belts was also presented to the 

administrative law judge by the Secretary. In his post hearing brief to 

the judge, the Secretary argued: 

At the outset, the Secretary reiterates that "the material 

issue centers on preshift examinations of an area where miners 

are required to work or travel" (Tr. 30). 

Secretary's post hearing brief at 8. 

Id. at 9. 

Id. at 17. 

J & L urges this proposition while admitting that the 

areas involved in the citation and order were not only in 

belt entries, but were also active workings (Tr. 18-19). 

The construction urged by J&L would ascribe to Congress 

the untenable, illogical intent that all miners except those 

working in the coal-carrying belt conveyor entries should 

receive the benefit of having a preshift examination of their 

work place. 
Id. at 22. 

On the basis of common sense, experience, legislative 

history, sound statutory construction and case authority, the 

Secretary urges that all places where miners are normally 

required to work or travel be examined within three hours 

preceding the beginning of any shift and before any miners 

in such shift enter these areas. 

Beyond .these obvious, forceful and repeated assertions, the Secretary 

petitioned this Commission to review the ALJ's failure to find a violation 

for the operator's failure to preshift the area here involved. That petition 

was granted in its entirety. In his petition, the Secretary left no doubt 

that he was citing the area, not the coal-carrying belts when he concluded: 

The preshift examiner is not required to test the 

Conveyor belts itself. 

In sum, under the standard, an operator must provide a 

pre-shift examination of those parts of the coal-carrying 

conveyor belt entries where miners normally work or travel. 

The examination must cover the items enumerated in the 

second sentence of the standard. 

Petition for discretionary review at 9. 

The Secretary supported this argument in his brief (hr. at 9-14, 17, 

22) and reply brief (r. hr. at 3 & n. 1, 14, 16, 17) to the Commission. 

Since it is undisputed that there was no preshift examination of these 

areas involved (Stip. 119, Tr. 7) where the inspector observed miners working 

along the belts (Tr. 109, 110), only one conclusion can be drawn--that a 

violation of 75.303 occurred. 

The majority has, however, parsed the statutory language beyond the 

fondest desires of the most scrupulous grammarian. The issue presented 

is whether the mine operator is required by section 303(d)(l) to preshift 

active workings of mines along coal conveyor belts. By refusing to consider 

these cited areas as active workings even though this is not in serious 

dispute between any of the parties, and although miners wer~ regularly 

assigned to work, and were observed working along this operator's coal 

carrying belt lines (Tr. 109, 110), the majority has denied these miners 

a preshift examination of their work area. 

The statute in relevant part provides: 

Within three hours immediately preceding the beginning 

of any shift, and before any miner in such shift enters 

the active workings of a coal mine, certified persons 

designated by the operator of the mine shall examine 

such workings and any other underground area of the mine 

designated by the Secretary .••. Belt conveyors on which 

coal is carried shall be examined after each coal-producing 

shift has begun. [Emphasis added.] 

l n '··:i (., J.. I 
The first sentence of section 303(d) -thus requires a preshift 

examination of active workings " .•• before any miner in such shift enters 

the active workings." Section 303(d), supra. The judge found the cited 

areas to be active workings and the parties do not disagree with this 

finding. See n. 1, supra. As active workings, the cited areas are 

therefore required to be preshif t examined, unless otherwise excluded or 

exempted by the statute. The last quoted sentence (supra), argues 

against any exclusion, and for the requirement of a preshift examination 

of the area cited by the inspector in this case. The first sentence of 

section 303 (d) (1) describes locales, i.e., "active workings." Section 

318(g)(4) of the Act in turn defines "active workings" as "any place in 

a coal mine where miners are normally required to work or travel." 

In 1969 Congress amended the preshift examination provisions of the 

1952 Act. This became section 303(d)(l) of the 1969 Coal Act, now section 

303(d)(l) of the 1977 Mine Act. The Senate Report accompanying the bill 

in 1969 stated the reason for requiring examinations of all belt conveyors: 

Many mine fires occur along belt conveyors as a result 

of defective electric wiring, overheated bearings, and 

friction; therefore, an examination of the belt conveyors 

is necessary. 

S. Rep. No. 411, 9lst Cong., 1st Sess. 57 (1969), reprinted in Senate 

Subcommittee on Labor, Committee on Labor and Public Welfare, 94th Cong., 

1st Sess., Legislative History of the Federal Coal Mine Health and Safety 

Act of 1969, Part I at 183 (1975). 

Only a strained reading of the plain language of the Act could lead 

to the conclusion that by the 1969 amendments, or their 1977 reenactment, 

Congress intended to deny miners working along coal carrying belt conveyors 

the protection of preshift examination of their working places. Congress, 

as reflected in both the legislative history and the statutory language, 

was increasing, not decreasing examinations, and certainly never contemplated 

miners working in uninspected areas. 

The majority's view of 75.303 and its sponsoring statutory provision, 

section 303(d)(l), would not improve or promote safety, but would reduce 

the protection afforded to miners. This apparently would deny preshift 

examinations of active workings along coal conveyor belts, and would 

certainly deny onshift examinations of coal conveyor belts, as in this 

case for 3-1/2 hours or until the operator performed such during the 

shift. It would also deny a miner working along a coal conveyor belt on 

a non coal-producing shift both a preshift and an onshif t examination of 

his working place, and would eliminate all preshift examinations of an 

active working if the operator placed a coal conveyor belt in such 

workings. Such a construction is contrary to the intent of Congress as 

expressed literally in the standard and statute involved here. Instead, 

the Act should be construed liberally when improved health and safety 

for the miners will result, or when it will carry out the purpose of the 

Act. United States v. American Trucking Association, Inc., 310 U.S. 534, 

543-544 (1940). 

1 .. \ t .-, 

;,,, ..I..() 
The possibility of ignition, a fortiori in a "gassy" mine such as 

the one here operated by J&L, presents the spectre of a major calamity. ]./ 

To understate the case considerably, sending miners to work in uninspected 

areas of a gassy mine is not in accord with my understanding of the mandate 

of the Act. 

As the Secretary has well stated: 

The construction urged by J&L would ascribe to Congress 

the untenable, illogical intent that all miners except 

those working in coal-carrying belt conveyor entries 

should receive the benefit of having a preshift examination of their work place. 

Secretary's post hearing brief at 17. 

The statute, the legislative history and the majority's analysis 

fail to demonstrate how a requirement of an examination of "active 

workings" prior to the start of a shift, and an examination of coal 

carrying conveyor belts while the mining is underway on the shift, 

imposes a burden on the operator which outweighs the miner's need to be 

protected in an area in which he or she is to work. The language of the 

Act requires no less, and the preventive purpose and thrust of the 

statute, even if subjected to a balancing analysis, mandates in favor of 

such a requirement. 

The problem with the majority's ignoring the failure to preshift the 

areas along the belts where miners were working is that, if there were 

no belts in an active working, the area would be subject to preshift 

examination. If, however, the operator installed a coal-carrying conveyor 

belt in such ah area, then the requirement of preshift inspection for 

such active working vanishes. This makes no sense as a matter of either law 

or logic, and indeed turns enforcement on its head, since the additional 

potential hazard of adding belts to a mine entry, perversely under the 

majority's view, eliminates the preshift inspection of the area. 

The judge below has drawn no distinction between entries with, or 

without, coal carrying belts, nor I suggest should we, since such is 

unnecessary to our decision. A more exact delineation of the inspection 

of conveyor belts in mine entries may well be more appropriately left to 

further clarification by the Secretary. Whether or not combined inspections 

are appropriate is also better left to the process of regulatory promulgation, particularly given the varying circumstances and ramifications of 

)_/The mine here involved is classified as "gassy", and therefore presents 

even more potential hazards than most. Tr. oral arg. 41-43; and see section 

103(i) of the 1977 Act. Interestingly, too, J&L--all of whose mines are 

located in West Virginia and Pennsylvania--has concededly examined all of its 

mines, preshift, including coal carrying belts, since 1961, although allegedly 

only before the first coal producing shift of each work week. Tr. oral arg. 

42, 43. 

1') ., 0 

f-..1 ..L ,J 
one, two or three shift operations, in which the hazard presented may be 

of markedly varying potential severity, and the time between inspections 

accordingly widely disparate. !±./ Finally, the issue of whether a preshift 

examination of coal-carrying belts is mandated for entries, when no miners 

are working along such belts, is not presented by this case. 

In summary, as the ALJ found and the parties here conceded, these 

are active workings. They are thus required to be preshift examined 

pursuant to the first sentence of section 303(d)(l). The prophylactic 

purpose of the statute requires that such active workings be inspected, 

and that such inspection not be denied because of either the presence, 

or the absence, of coal-carrying conveyor belts in those entries. 

Based on the clear language of section 303(d)(l) of the Act and its 

sponsored regulation (30 CFR § 75.303), the legislative history, and in 

the interest of promoting safety for the miner, 'i/ I would find that the 

statute and the standard involved require a preshif t examination of those 

active workings along a coal conveyor belt, on any shift, before a miner 

enters his or her work place. 

I therefore dissent from the majority's decision, would hold that 

this operator violated the Act as alleged in the citation and order, and 

would remand for further proceedings. 

/ ' ~7!-{J·':-J-i-1 ........ 

A. E. Lawson, Commissioner 

!±_/ Whether or not all or only part of these coal-carrying conveyor belts must 

be examined preshift may bear further scrutiny, inasmuch as the Secretary has 

the authority to designate more precisely the underground areas of the mine 

to be examined. Section 303(d)(l). In any event, the promulgation of 

specific regulations, with all parties having the opportunity to comment 

thereon, appears obviously preferable to the enunciation of dicta in the 

instant case. 

5/ If section 303(d)(l) is ambiguous, and I do not believe this to be the 

case, any ambiguity must be interpreted to promote safety and prevent death 

and injury to miners. Section 2(e) of the Act. District 6, United Mine 

Workers of America v. United States Dept. of the Interior, Board of Mine 

Operations Appeals, 562 F.2d 1260, 1265 (1977); UMWA v. Kleppe, 532 F.2d 

1403, 1406 (1976), cert. denied 429 U.S. 858 (1976); Munsey v. Horton, 

507 F.2d 1202, 1210 (1974); Reliable Coal Corp. v. Morton, 478 F.2d 257, 

262 (1973); and Old Ben Coal Co., 1 FMSHRC 1954, 1957, 1958 (December 1979). 

1n_.'f) 

-- •"-i l'·"'r;I ... 
Distribution 

Henry McC. Ingram, Esq. 

R. Henry Moore, Esq. 

Thomas C. Reed, Esq. 

Rose, Schmidt, Dixon & Hasley 

900 Oliver Building 

Pittsburgh, PA 15222 

Debra L. Feuer 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Kurt Kobelt, Esq. 

United Mineworkers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Charles P. O'Connor, Esq. 

E. Carl Uehlein, Jr., Esq. 

Robert A. Dufek, Esq. 

Morgan, Lewis & Bockius 

1800 M Street, N.W. 

Washington, D.C. 20036 

Henry Chajet, Esq. 

American Mining Congress 

1920 N Street, N.W. 

Washington, D.C. 20036 

Robert C. Gombar, Esq. 

Rose, Schmidt, Dixon & Hasley 

1575 Eye Street, N.W. 

Washington, D.C. 20005 

l nn .r 

r-~ ,.::, l. 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUL (703) 756-6210/11/12 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner-Respondent 

v. 

MONTEREY COAL COMPANY, 

Contestant-Respondent 

v. 

UNITED MINE WORKERS OF AMERICA, 

Intervenor 

Civil Penalty Proceeding 

Docket No. LAKE 82-97 

A.O. No. 11-00726-03502 

Contest of Citation 

Docket No. LAKE 82-82-R 

Citation No. 1004993;4/28/82 

No. 1 Mine 

DECISIONS 

Appearances: Edward H. Fitch, IV, Attorney, U.S. Department of Labor, 

Arlington, Virginia, for the Petitioner-Respondent MSHA; 

Carla K. Ryhal, Esquire, Houston, Texas, for the ContestantRespondent Monterey Coal Company; Mary Lu Jordan and 

Joyce A. Hanula, Esquires, Washington, D.C., for the 

Intervenor UMWA. 

Before: Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern a citation issued by an 

HSHA inspector pursuant to Section 104(a) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. 820(a), charging the respondent-contestant 

Monterey Coal Company with a violation of Section 103(f) of the Act. The 

citation no. 1004993, was issued on April 28, 1982, by MSHA Inspector 

Lonnie D. Conner, and the "condition or practice" is described as follows: 

The operator has refused to pay Miner's Representative 

Frank H. Barrett, Jr., for the period of time that he 

accompanied Federal Coal Mine Inspector Joe S. Gibson 

on a roof control technical investigation of the mine. 

The investigation was conducted on March 23, 1982. 

These cases were docketed for hearing in St. Louis, ~·fissouri, commencing 

on March 17, 1983. However, the hearing was cancelled after the parties agreed 

to submit the matter to me for summary disposition based on joint stipulations 

by the parties, with supporting briefs. 

1003· 

,_. i~ 
Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

30 U.S.C. § 801 et~· 

2. Sections 105 and llO(i) of the Act. 

3. Commission Rules, 29 CFR 2700.1 et~· 

4. Section 103(a) of the Act provides: 

Authorized representatives of the Secretary or the 

Secretary of Health, Education, and Welfare shall 

make frequent inspections and investigations in 

coal or other mines each year for the purpose of 

(1) obtaining, ultilizing, and disseminating 

information relating to health and safety conditions, 

the causes of accidents, and the causes of diseases 

and physical impairments originating in such mines, 

(2) gathering information with respect to mandatory 

health or safety standards, (3) determining whether 

an imminent danger exists, and (4) determining whether 

there is compliance with the mandatory health or 

safety standards or with any citation, order, or 

other requirements of this Act. In carrying out 

the requirements of this subsection, no advance 

notice of an inspection shall be provided to any 

person, except that in carrying out the requirements 

of clauses (1) and (2) of this subsection, the Secretary 

of Health, Education, and Welfare may give advance 

notice of inspections. In carrying out the requirements 

of clauses (3) and (4) of this subsection, the Secretary 

shall make inspections of each underground coal or 

other mine in its entirety at least four times a year, 

and of each surf ace coal or other mine in its entirety 

at least two times a year. The Secretary shall 

develop guidelines for additional inspections of 

mines based on criteria including, but not limited 

to, the hazards found in mines subject to this Act, 

and his experience under this Act and other health 

and safety laws. For the purpose of making any 

inspection or investigation under this Act, the 

Secretary, or the Secretary of Health, Education, 

and Welfare, with respect to fulfilling his 

responsibilities under this Act, or any authorizied 

representative of the Secretary or the Secretary of 

Health, Education, and Welfare, shall have a right 

of entry to, upon, or through any coal or other 

mine. [Emphasis supplied]. 
5. Section 103(f) of the Act provides: 

Subject to regulations issued by the Secretary, 

a representative of the operator and a representative authorized by his miners shall be given an 

opportunity to accompany the Secretary or his 

authorized representative during the physical 

inspection of any coal or other mine made pursuant 

to the provisions of subsection (a), for the 

p~rpose of aiding such inspection and to participate 

in pre- or post-inspection conferences held at the 

mine. Where there is no authorized miner representative, the Secretary or his authorized representative 

shall consult with a reasonable number of miners 

concerning matters of health and safety in such mine. 

Such representative of miners whq is also an employee 

of the operator shall suffer no loss of pay during 

the period of his participation in the inspection 

made under this subsection. To the extent that 

the Secretary or authorized representative of the 

Secretary or authorized representative of the 

Secretary determines that more than one representative 

from each party would further aid the inspection, he 

can permit each party to have an equal number of such 

additional representatives. However, only one such 

representative of miners who is an employee of the 

operator shall be entitled to suffer.no loss of pay 

during the period of such participation under the 

provisions of this subsection. Compliance with this 

subsection shall not be a jurisdictional prerequisite 

to the enforcement of any provision of this Act. 

[Emphasis Supplied]. 

Issues 

The parties stipulated that the following issues are presented for 

decision by me in these proceedings: 

1. Is an operator required by Section 103(f) of the Act to 

compensate a miner's representative for the time spent accompanying a 

federal inspector on a spot inspection? 

The parties agree that relevant decisions regarding 

this issue have been rendered by the United States 

Court of Appeals for the District of Columbia 

in United Mine Workers of America v. Federal Mine 

Safety and Health Review Commission, 671 F.2d 615 

(D.C. Cir. 1982) cert. denied, 74 L.Ed 2d 189 

l 'l') .: 

'~ ,.:..,,., • .. J 
(Oct. 12, 1982) and by the Federal Mine Safety 

and Health Review Commission Nos. 79-2537 and 

79-2518, Secretary of Labor v. Helan Mining Company, 

Docket No. PITT 79-11-P (Nov. 21, 1979); Nos. 79-2536 

and 79-2503; Kentland-Elkhorn Coal Corp~ v. Secretary 

of Labor, Docket No. PIKE 78-399 (Nov. 30, 1979); and 

No. 80-1021; Secretary of Labor v. Allied Chemical 

Corp., Docket No. WEVA 79-148-D (Dec. 6, 1979). 

2. Is a roof control technical investigation different from a spot 

inspection for purposes of determining an operator's obligation to compensate a miner's representative for the time spent accompanying a federal 

inspector pursuant to Section 103(f) of the Federal Mine Safety and Health 

Act of 1977? 

Any additional issues raised by the pleadings and briefs are identified 

and disposed of in the course of these decisions. 

The parties stipulated and agreed to the following: 

1. Monterey Coal Company owns and operates the No. 1 Mine (Identification 

No. 11-00726), which is located in Carlinville, Macoupin County, Illinois, 

and the mine is subject to the Act. 

2. Respondent is subject to the jurisdiction of the Act, the presiding 

Judge has jurisdiction to hear and decide these cases, and the citation 

in issue was properly served on the respondent. 

3. On March 23, 1982, Federal Coal Hine Inspector Joe S. Gibson, 

a duly authorized representative of the Secretary and a roof control 

specialist, conducted what is referred to by MSHA as a "CEA-Roof Control 

Technical Investigation" (Investigation) of tl:J,e Monterey No. 1 Mine. 

4. A "CEA-Roof Control Technical Investigation" is different from a 

"regular" inspection. Each activity code, including a "CEA-Roof Control 

Technical Investigation," is defined as indicated in an attached Exhibit "A", 

dated June 3, 1979. These activity codes and definitions are included 

in the MSHA Citation and Order Manual. The activity codes are used by 

the Department of Labor's Mine Safety and Health Administration both to 

substantively describe the various enforcement procedures conducted by 

MSHA and to record the utilization of inspector work hours by means of 

an automated computerized coding system. The activity codes cover a 

broad range of activities which are variously applicable to individual 

inspectors, but collectively are applicable to the entire agency's function. 

5. The Secretary and the UMWA consider a CEA-Roof Control Technical 

Investigation enforcement procedure to be a type of spot inspection covered 

by Section 103(f) walk-around pay provisions. Monterey does not agree 

with this determination and maintains that this type of investigation is 

not a type of spot inspection, nor any type of inspection, and that it is 

a type of investigation which does not constitute an inspection for purposes 

of Section 103(f)'s walk-around pay provisions. 

1 n Ii.'_.., 

.1. ..... ·- t) 
6. The parties agree that the activities involved in the March 23, 

1982, enforcement procedure consisted of a one day investigation to determine 

if the operator was complying with the provisions of 30 C.F.R. 75.200 throug~ 

75.205 in particular and all other standards in general. The parties 

further agree that during said enforcement procedure, Inspector Gibson 

may and does cite violations of any standard observed. However, his 

primary responsibility is to observe the roof bolting activities, to 

measure room, ~try, crosscut widths, and roof bc•lt spacing, to sound 

the roof and ribs, and to determine if the operator is in compliance with 

all the provisions of the mine's roof control plan. In fact, during the 

investigation in question, a citation of alleging a violation of the 

Monterey No. 1 Mine's roof control plan was issued, as well as a termination 

thereof. This enforcement procedure is a regular function of MSHA roof 

control specialists. 

7. During said investigation, Frank H. Barrett, Jr., a representative 

of the United Mine Workers of America, accompanied Mr. Gibson, but 

Mr. Barrett was not paid by Monterey for the period of his participation 

in said investigation. 

8. On April 28, 1982, Federal Coal Mine Inspector Lonnie D. Conner, 

a duly authorized representative of the Secretary, issued Citation No. 1004993 

(Citation) and served the same upon Dick Mottershaw, Safety Coordinator for 

Monterey. The Citation stated that it was issued pursuant to Section 104(a) 

of the Act and alleged a violation of Section 103(f) of the Act. Under the 

heading "Condition or Practice" the Citation alleges that: 

The operator has refused to pay miner's representative 

Frank H. Barrett, Jr. for the period of time that he 

accompanied Federal Coal Mine Inspector Joe S. Gibson 

on a Roof Control Technical Investigation of the mine. 

The investigation was conducted on March 23, 1982. 

9. On April 30, 1982, Monterey paid Mr. Barrett for the period of his 

participation in said investigation. Thereafter, on May 3, 1982, Mr. Conner 

issued Termination No. 1004993-1, which under the heading "Justification 

for Action Checked Below" stated that: 

The operator has paid Miner's Representative Frank H. Barrett, 

Jr. for the period of time that he accompanied Federal 

Coal Mine Inspector Joe S. Gibson on a (sic) investigation 

of the mine. 

10. Monterey is a large operator and the assessment of a civil penalty 

in this matter, if appropriate, would not adversely affect Monterey's 

ability to remain in business. 

11. The Monterey No. 1 Mine's history of previous violations is 

indicated in a computer printout of violations issued in the two years 

preceding April 28, 1982 (see exhibit "G"). 
Discussion 

These proceedings deal with the scope of the right, pursuant to 

Section 103(f) of the Act, of a representative of miners to be compensated 

for the time spent accompanying the Secretary's authorized representative 

during the inspection of a mine ("walkaround pay"). The material facts 

are not in dispute and have been sti~ulated to by the parties. Thus, the 

matter for determination is one involving a question of law, and the 

parties seek summary decisions pursuant to Commission Rule 29 CFR 2700.64(b). 

MSHA and the UMWA contend that Monterey's declination to compensate 

the miners' representative for the period of his participation of the roof 

control technical investigation on the occasion in question constitutes 

a violation of Section 103(f) pursuant to the holding in United Mine Workers 

of America v. Federal Mine Safety and Health Review Commission, 671 F.2d 

615 (D.C. Cir. 1982), cert. denied, 74 L.Ed. 2d 189 (Oct. 12, 1982) ("UMWA 

v. FMSHRC"). Monterey submits, however, that the right to walkaround pay 

is limited to mandatory inspections of a mine as required by Section 103(a) 

of the Act, and does not extend to other inspections or investigations 

required, authorized or permitted by the Act. Xonterey asserts that a roof 

control technical investigation is not such a mandatory inspection 

required by Section 103(a). Thus, it is Monterey's position that its 

declination to pay the miners' representative for the period of his 

participation in the Roof Control Technical Investigation on the occasion 

in question was not a violation of the Act and, consequently, the citation 

and proposal for a penalty are invalid and should be vacated and dismissed. 

Monterey's Arguments 

Monterey concedes that there is a right to walkaround pay under 

Section 103(f) of the Act in connection with ''.regular inspections" conducted 

under Section 103(a). Monterey suggests that the term "regular inspections" 

has been interpreted by MSHA and the mining industry to connote the 

mandatory inspections mandated by Section 103(a), and that the term 

"spot inspection" has come to have the accepted meaning of any inspection 

other than the mandatory inspections of the entire mine. 

Monterey argues that when read together, Sections 103(f) and 103(a) 

limit the right of the miners' representative to compensation for walkaround 

activities to only the miners' representative's participation in the 

"regular inspections" mandated by Section 103(a) of the Act. Further, 

Monterey argues that if Congress had intended the walkaround pay right to 

apply to all inspections, then it could easily have used the phrase 

"any inspection" in Section 103(f) instead of referring to an inspection 

"made pursuant to the provisions of subsection (a)," the language actually 

chosen. Monterey points out that Section 103(h) of the 1969 Act did 

refer to "any inspection," and in other sections of the Act where Congress 

intended a provision to apply to all inspections, Congress specifically 

used the term "any inspection." 

1 n ( l ~J 

.J..,-;~U 
Monterey maintains that Section 103(a) provides the substantive 

authority fqr virtually all of the inspections and investigations conducted 

by MSHA under the Act, probably including those specifically authorized 

by other sections of the Act. However, if walkaround pay is not limited 

to the statutory minimum number of inspections at each mine, then the phrase 

"pursuant to subsection (a)" in Section 103(f) is rendered meaningless. 

Recognizing the fact that the Court of Appeals for the District of Columbia 

Circuit held to the contrary in UMWA v. FMSHRC, supra, and held that miners' 

representatives have the right to be compensated for the time spent 

accompanying MSHA inspectors during spot and regular inspections, Monterey 

takes the position that the Court's decision w~s erroneous, and that it 

is not binding on the Commission or its Judges. Citing a number of 

Commission decisions which uniformly held that Section 103(f) grants 

walkaround pay rights to miners' representatives only with respect to 

regular inspections required by Section 103(a), and not with respect to 

spot inspections, and citing the legislative history remarks of Representative 

Carl D. Perkins in support of its argument., Monterey strongly suggests 

that the Court's decision in UMWA v. FMSHRC should be ignored. 

With regard to MSHA's Interpretive Bulletin, 43 Fed. Reg. 17546, 

April 25, 1980, which lists spot inspections, as well as regular inspections, 

among the types of activities giving rise to walkaround rights, Monterey 

argues that I am not bound by the information contained therein. 

In further support of its position, Monterey states that even if 

its obligation to compensate the miners' representative for the time spent 

accompanying an inspector extends to spot inspections, it does not extend 

to a roof control technical investigation. In support of this argument, 

Monterey maintains that investigations and inspections are distinguishable, 

and the fact that Congress included both inspections and investigations 

within the coverage of Section 103(a), but used only the term insoection 

in Section 103(f), clearly indicates that it qid not intend investigations 

to be included within the walkaround provisions of Section 103(f). 

l 

I 

I 

.--·---_J 

Monterey points to the fact that throughout the Act some provisions 

use only the terms "inspection", and some use only the term "investigation", 

and some use both terms. However, Honterey suggests that the two terms 

are never used interchangeably in the Act, and that they are used to mean 

different things. Since, in all cases, the usage of the terms is logical 

and consistent with the different meanings of the terms, Monterey concludes 

that it is inescapable that throughout the Act, and specifically in 

Section 103(f), Congress made a purposeful and intelligent distinction 

between the two terms. As an example, Monterey cites the Act's provision 

in Section llO(e) restricting a person from giving advance notice of an 

inspection, while there is no restriction in connection with investigations. 

Monterey cites the Activity Codes included in MSHA's Citation and Order 

Manual, as a further indication that the Secretary also recognizes the 

distinction between an inspection and an investigation (Exhibit "A", 

Stipulations). Under Categories A ("Mandatory Inspections and Investigations"), 
B ("Policy Inspections and Investigations"), and C ("Auxiliary Inspections, 

and Investigations"), types of inspections and investigations are distinctly 

delineated. Further, although other inspections coded and defined in 

the Manual do not have counterpart investigations, Monterey points to 

the fact that in Category C several of the inspections and investigations 

parallel one another, namely: CCA-Roof Control Technical Inspection; 

CEA-Roof Control Technical Investigation; CCB-Haulage Technical Inspection; 

GEE-Haulage Technical Investigation; CCC-Ventilation Technical Inspection; 

and CEC-Ventilation Technical Investigation. This shows that inspections 

and investigations are different activities, otherwise MSHA would not 

have coded and defined an inspection and an investigation to address 

the same concern. 

In response to MSHA's assertion that a roof control technical 

investigation is an enforcement procedure and, as such, is similar to 

an inspection since the inspector may cite violations of any standards 

observed during such an investigation, thereby making it subject to the 

walkaround provisions of the Act, Monterey maintains that while the purposes 

for conducting inspections and investigations may be the same under Section 103(a) 

of the Act, there is no indication that the two terms were intended to 

mean the same thing. The fact that while conducting a roof control 

technical investigation an inspector may issue citations for violations 

of standards other than the roof support standards does not render inspections 

and investigations synonymous, and Section 104(a) requires an inspector 

conducting either an inspection or investigation to issue a citation whenever 

he observes a violation of the "Act, or any mandatory health or safety 

standard . . . " 

In further support of its position in these proceedings, Monterey 

maintains that sound policy reasons exist for distinguishing between 

technical investigations, if not spot inspections, and regular inspections, 

consistent with the remedial functions of the Act. The first sentence of 

Section 103(f) expressly states that the purpose of the right to accompany 

inspectors, and the right to be paid therefor, is to aid in the inspection. 

Regular inspections and technical investigations are entirely different 

in scope and purpose. Because regular inspections are detailed and extensive, 

covering every aspect of health and safety in the mine, it is conceivable that 

the miners' representative accompanying an inspector on a regular inspection 

could improve the inspector's effectiveness by contributing personal 

familiarity with the particular mine and by providing another "pair of eyes," 

and could enhance miner consciousness as to the complex regulatory scheme 

created by the Act. 

In contrast, argues Monterey, a technical inspection, by its very 

nature, focuses on one hazard and usually involves narrow, technical 

procedures. Inspectors who conduct technical investigations are normally 

specialists who specialize in one type of safety or health standard, such 

as respirable dust, ventilation control, or electrical standards. They 

are especially qualified by training, experience and familiarity with a 

particular problem. The presence of the miners' representative is not likely 

1 ("") ''· () r:.0. 
to be terribly helpful to a specialized inspector conducting narrow 

technical proc.edures. Nor would the observation by the miners' 

representative of the inspector conducting these narrow technical 

procedures enhance the consciousness of miners who perform or observe 

similar procedures on a regular basis. Monterey points out that a 

Roof Control Technical Investigation, such as that conducted on the 

occasion in question, is conducted to determine an operator's compliance 

with the standards relating to roof support and includes observation 

of roof bolting activities, measurement of room, entry, crosscut widths, 

and roof bolt spacing; and sounding of the roof. and ribs, and the inspector 

who conducted the Roof Control Technical Investigation in question was, 

indeed, a roof control specialist. 

Monterey concludes that because the primary purposes for the miners' 

representatives to accompany an inspector are not applicable in the 

situation of a technical investigation, its obligation to compensate 

the representative for doing so should noi extend to technical inspections 

in general, nor to roof control technical investigations in particular. 

MSHA's Arguments 

In support of its case, MSHA relies on the February 23, 1982, decision 

by the U.S. Court of Appeals for the District of Columbia Circuit in ill~JA v. 

Federal Mine Safety and Health Review Commission, 671 F.2d 615 (D.C. Cir. 

1982), cert denied, 74 L. Ed. 2d 189 (Oct. 12, 1982), holding that the right 

to walkaround pay is coextensive with the right to accompany an inspector 

under Section 103(f) of the Act, and that spot inspections, as well as 

regular inspections, were included in the coverage of Section 103(f) 

for walkaround pay purposes. 

HSHA asserts that the Court of Appeals interpretation of Sect~on 103(f) 

should be followed and applied until such time as that interpretation is 

reversed or modified by the D.C. Circuit, another Federal Court of appeals, 

or the Supreme Court. MSHA argues that the D.C. Circuit properly interpreted 

the scope and application of Section 103(f) to require an operator to 

compensate a miner's representative for the time spent accompanying an 

inspector on a spot inspection, and that Monterey's suggestion that I 

should ignore the Court's interpretation should be rejected. 

MSHA maintains that the inspection at issue in this proceeding is a 

type of spot inspection activity which has been described as a roof control 

technical investigation. It is MSHA's view that the use of the word 

"investigation" does not negate the reality that the activity involved an 

inspection of the mine related to its roof control plan, that the enforcement 

procedure was an inspection activity related to the specifics of the mine's 

roof control plan and was conducted by an authorized representative of the 

Secretary with special expertise in roof control, and that the procedure 

concerns one of the most important aspects of maintaining a safe roof 

control program. 

1 n '~ ' ....L' ~ u . .l 
MSHA points to the fact that the various enforcement procedures it 

conducts are-described and coded as indicated in Exhibit D, which is a part 

of the stipulations. MSHA states that these codes are used by the agency 

to keep track of the utilization of inspector work hours, and that the 

substance of an inspector's activity must serve as the foundation to 

determine the applicability of Section 103(f), not the code chosen to 

track the inspector's use of his time. 

MSHA concludes that if the Commission and its Judges were to ignore 

the Court of Appeals precedent, the Secretary would be placed in the 

burdensome and costly position of repeatedly issuing citations, defending 

them before the Commission, and then seeking review before the D.C. Circuit. 

Such a result, suggests MSHA, would be contrary to public policy and 

practical reality and would make a travesty of the Court's ruling. MSHA 

concludes further that I should give full force and effect to the Court 

of Appeals decision and implement the Court's statutory construction of 

Section 103(f) by affirming the citation, determining an appropriate penalty, 

and dismissing the notice of contest filed. in this matter. 

The UMWA's arguments 

The UMWA's position in this case is similar to that taken by MSHA. 

Citing UMWA v. FMSHRC, supra, the UMWA emphasizes the fact that the D.C. 

Circuit rejected the position taken by Monterey in the instant proceeding 

and upheld the Secretary's Interpretive Bulletin, requiring walkaround 

pay for spot inspections. In so doing, the Court reversed the Commission's 

decision in Secretary of Labor v. Helen 11ining Company, 1 FHSHRC 1796 

(1979), and the UMWA urges that I reject the notion advanced by Monterey 

that I should ignore the D.C. Circuit and apply the Helen Mining decision. 

In support of its position, the UMWA points out that the Commission 

remanded the UMWA v. FMSHRC line of cases to the appropriate Judges, 

with directions for adjudicating the cases consistent with the D.C. 

Circuit's decision. Further, the UMWA emphasizes that the conditions 

generally advanced to support the cited NLRB's policy of nonacquiescense 

with Court precedents are not present in the instant proceedings. The 

UMWA maintains that the Commission's decision in Secretary of Labor v. 

Magma Copper Co., 1 FMSHRC 1948, aff'd, 645 F.2d 694 (oth Cir. 1981), cert. 

denied, 454 U.S. 940 (1981), illustrates the Commission's view that the 

active participation of miners in the enforcement of the Act will lead 

to improved health and safety in the mines. 

The UMWA maintains that the Commission's decision in Helen Mining 

restricted walkaround pay, not because the majority felt, on the basis of 

its expertise, that the purposes of the Act would best be served by 

compensating miners only during the quarterly inspections of the entire 

mine. The majority reached that result only because of their determination 

concerning how much weight should be given to Congressman Perkins' remarks 

in determining Congressional intent. The D.C. Circuit has determined 

that the Commission majority erred by concluding that the Congressman's 

remarks were "dispositive" of the question of legislative intent. particularly 

since those remarks conflicted with the statutory language. It .is obvious, 

1 ...., '.l > 

..!.; • \.){:..., 
argues the UMWA, that the Circuit opinion does not articulate a rule of 

law which, ·in the Commission's view, undermines the purposes and policies 

of the Act. As such, it would not appear to present a situation where 

the Commission, relying on its expertise, would determine it must adhere 

to a particular interpretation, in the face of contrary court rulings, 

until it is overruled by the Supreme Court. 

The UMWA argues that regardless of which "activity code" the inspector 

chose, his activities on March 23, 1982, were clearly enforcement related 

and were the type of actions contemplated in the Secretary's Interpretive 

Bulletin as giving rise to Section 103(f) rights. Further, the ill1WA 

maintains that it was entirely appropriate for MSHA to determine that, 

for purposes of Section 103(f) the enforcement activity conducted at the 

mine on March 23 was a type of spot inspection, even though, for purposes 

of MSHA's computer activity code, the action was listed under "CEA", which 

is designated a "Safety and Health Roof Control Technical Investigation". 

Regardless of what "activity code" the inspector's actions came under, 

the UMWA maintains that they clearly fell within the type of activity 

described in the Interpretive Bulletin as givin rise to Section 103(f) 

participation rights. 

The U:MWA concludes that given the fact that Congress considered an 

important purpose of the walkaround right to be the improvement of the 

miners' knowledge of health and safety standards, and given the fact 

that Congress saw a particular need for the improvement of such knowledge 

in the area of roof control, it would be completely contrary to Congressional 

int~nt to interpret Section 103(f) in a manner that precluded miner 

participation in MSHA's roof control investigations. The UMWA points 

out that unlike most other mandatory safety standards, the roof control 

requirements are contained in individual plans, tailored to the specific 

conditions of each mine, and they are subject to review by MSHA District 

Managers every 6 months. The District Manage~s are required to consider 

any instances of inadequate support and may require improvements in the 

plan if they deem it necessary (30 C.F.R. § 75.200). Allowing miners to 

actively participate in "roof control technical investigations," such as 

the one that occurred at the No. 1 Mine, will assist MSHA in carrying out 

its obligations to review the plans. If miners are traveling with MSHA 

inspectors when they monitor compliance with the plan, the inspectors will 

be more likely to be made aware of any occasion when the plan has proved 

inadequate and will be able to obtain suggestions from the miners as to 

necessary improvements. The fact that roof control plans are subject 

to continual revision makes it all the more necessary that miners participate 

in "roof control technical investigations," so they can be kept abreast of 

the changes and improvements. 

Findings and Conclusions 

Section 103(a) of the Act directs the Secretary to make "frequent 

inspections and investigations" for the purpose of--
(1) obtaining, utilizing, and disseminating 

information relating to health and safety conditions, 

the causes of accidents, and the causes of diseases 

and physical impairments originating in such mines, 

(2) gathering information with respect to mandatory 

health or safety standards, 

(3) determining whether an imminent danger exists, 

and 

(4) determining whether there is compliance with the 

mandatory health or safety standards or with any 

citation, order, or decision issued under this title 

or other requirements of this Act. 

Section 103(f) mandates that a miners~ representative be given an 

opportunity to accompany an inspector during his physical inspection of 

the mine for the purpose of aiding him in his inspection, and it seems 

clear to me that the representative is entitled to be compensated during 

the time spent on the inspection. In the instant case, the question presented 

is whether or not such compensation is limited to the four annual regular 

inspections authorized by Section 103(a), and whether or not the roof control 

technical investigation conducted by Inspector Gibson on March 23, 1982, was 

in fact a "spot inspection". If one can conclude that the investigation 

in question was a spot inspection, the question next presented is whether 

the miners' representative was entitled to be compensated. 

The Commission has previously considered the walkaround provisions 

found in Section 103(f) of the Act in five consolidated cases which resulted 

from certain MSHA spot inspections for excessive levels of methane gas 

and electrical hazards; Helen Mining Company, FJ:.1SHRC 2193 (1979); 

Kentland-Elkhorn Coal Corporation, 1 FMSHRC 2230 (1979), and Allied Chemical 

Corporation, 1 FMSHRC 2232 (1979). In each of those cases, the Commission 

held that while miners had a right to participate in all mine inspections, 

mine operators were required to pay them only for their participation in 

the regular mandatory inspections mandated by Section 103(a) of the Act, 

and not for "spot" inspections authorized by other sections of the law. 

On appeal to the United States Court of Appeals for the District of Columbia 

Circuit, the Court, in a split decision issued on February 23, 1982, 

reversed the Commission and held that miners were entitled to walkaround 

pay for "spot" inspections, as well as for regularly scheduled inspections, 

UMWA v. Federal Mine Safety and Health Review Commission, 671 F.2d 615 

(D.C. Cir. 1982), cert. denied, 74 L. Ed. 2d 189, October 12, 1982. 

In its supporting brief, Monterey argues that the Court of Appeals 

decision in U1'fWA f. FMSHRC, supra, was erroneous and that it is not 

binding on the Commission or its Judges. In a recent decision issued by 

Judge Kennedy in MSHA v. Southern Ohio Coal Company, LAKE 80-142, 5 FMSHRC 

1')3 t-v l. '1 
479, March 14, 1983, he rejected an identical argument, and held that 

the Commission's direction to him was to dispose of the case in a manner 

"consistent with the court's order", 4 FMSHRC 856 (1982). '!:..._/ The Commission's 

remand order to Judge Kennedy specifically makes reference to UMWA v. FMSHRC, 

and similar orders were issued in a number of cases decided before UMWA v. 

FMSHRC (See Orders reported at 4 FMSHRC pgs. 854 through 881). In each 

instance, the Commission's remand orders directed the Judges to adjudicate 

them in a manner consistent with the decision in ill£vA v. FMSHRC. Thus, I 

am in agreement with the UMWA's arguments in this case that the Commission 

has not been inclined to deviate from the D.C. Circuit Court of Appeal's 

ruling in UMWA v. FMSHRC, supra. 

Upon review of Judge Kennedy's decision on remand in Southern Ohio 

Coal Company, I agree with his holding that he is bound by the Court's 

decision in UMWA v. FMSHRC, that he should not consider de nova the 

question of law decided in that case, and I incorporate herein by reference 

his rationale in support of that holding as grounds for my rejection of the 

respondent's identical argument in this case. I conclude that I am bound 

by the Court's decision, and that spot inspections are compensable under 

Section 103(f). 

Exhibit "A" to the stipulations is a June 30, 1979, itemized computer 

"Activity Codes" listing defining each of the various types of inspections 

and investigations conducted by MSHA. Category "A" is styled Mandatory 

Inspection and Investigations, and included among the twenty (20) kinds of 

inspections in this category are the AAA and AAB regular and saturation 

inspections of the entire mine, eight different types of "spot inspections", 

a "reopening inspection" covering mines formerly abandoned or inactive, a 

"toxic substance or harmful physical agent inspection", two "technical 

inspections" dealing with section 101 petitions, four different kinds of 

"accident investigations", one "special investigation" dealing with willful 

violations, and one investigation dealing with discrimination comnlaints. 

Category "B" is styled Policy Inspections and Investigations, and 

included in this category are eleven (11) different kinds of "technical 

and special investigations and inspections." 

Category "C" is styled Auxiliary Inspections and Investigations, and 

included in this category are nineteen (19) different kinds of ''technical 

and special investigations and inspections." 

Since the avowed purpose of the codes is to track the inspector's 

time for fiscal and budget purposes, logic dictates that each code is 

for a particular and specific type of activity, whether it be styled 

"investigation" or "inspection". Although it is true that the computerized 

coding system facilitates the tracking of inspector work hours, those 

inspector activities connected with .MSHA's actual on-site enforcement 

"!:.._/ The Commission denied review of Judge Kennedy's remand decision in 

April 1983. 
functions are clearly distinguishable from administrative and personnel 

activities such as inspector leave, training, attendance at meetings, and 

seminars, which are listed in code categories E, F, and G. 

Both MSHA and the UMWA argue that a liberal construction of the 

provisions of the Act require that miners' representatives be compensated 

by the mine operator for the time spent on the roof control investigation 

in question. If one were to accept the arguments advanced by MSHA and 

the Ul1WA, then it would logically follow that a miners' representative 

would be entitled to compensation each time he leaves his regular job 

in the mine to accompany an MSHA inspector on any of the fifty (50) 

inspections-investigations covered by MSHA's regulations. While it is 

not clear that Congress ever intended such a result, MSHA's Interpretive 

Bulletin distinguishes between pure enforcement inspection activities 

and those of a purely technical nature unrelated to enforcement. See 

Interpretive Bulletin, 43 Fed. Reg. 17547, which states as follows: 

Section 103(f) does not necessarily apply to every 

situation in which a representative of the Secretary 

is at a mine. Rather, section 103(f) contemplates 

activities where the inspector is present for purposes 

of physically observing or monitoring safety and health 

conditions as part of a direct enforcement activity. 

This is indicated by the text of section 103(f) itself, 

which refers to "physical inspection" where the presence 

of miners' representatives will "aid" the inspection. 

The Bulletin goes on to explain the types of activities which do not 

give rise to miners' representative participation and compensation, and 

included in the explanation of the matters excluded from such participation 

and compensation is the following, at pg. 17548: 

In these types of activities, while there may sometimes 

be a need to physically observe or monitor certain 

conditions or practices, this aspect of the overall 

primary activity is incidental to other purposes. 

Although enforcement action could result from certain 

of these activities, the relationship of the 

activities to·enforcement of safety and health requirements is indirect, or the activity is being carried 

out in accordance other duties under the Act. The 

continuing presence of a representative of miners 

in all phases of these activities would not necessarily 

aid the activity. 

The parties have stipulated that the type of inspection conducted 

by Inspector Gibson on March 23, 1982 is known as a "CEA-Roof Control 

Technical Investigation", which is defined by MSHA as follows in Exhibit "A", 

pg. A3-6: 

1 •') q ·" 

~; .. ub 
Safety and Health Roof Control Technical Investigation 

of a mine in~luding engineering and indepth studies of 

roof problems or potential roof problems, roof control 

surveys, and pull tests. 

The parties also stipulated that Inspector Gibson's activities 

on March 23, 1982, constituted an enforcement procedure consisting of 

a one-day investigation to determine whether the respondent was complying 

with the particular mandatory roof support safety standards found at 30 

CFR 75.200 through 75.205, as well as all standards in general. Although 

the parties agreed that Inspector Gibson's primary responsibility was 

to observe the roof bolting activities, to measure room, entry, crosscut 

widths, roof bolt spacing, and to sould the roof and ribs, all for the 

purpose of determining respondent's compliance with the applicable mine 

roof control plan, they further agreed that during this enforcement 

procedure Inspector Gibson may and does cite any observable violations 

of any mandatory standards. As a matter of fact, during the investigation 

in question, Inspector Gibson issued a citation for a violation of the 

roof control plan, and a copy is attached as Exhibit "B" to the stipulations. 

The citation was issued pursuant to section 104(a) of the Act, and it 

charges a violation of mandatory standard section 75.200, because one 

of the mined intersections of a track entry had a diagonal measurement 

of 43 feet, which was in excess of the 38-foot requirement stated in the 

roof control plan. Inspector Gibson terminated the citation within an 

hour of its issuance after abatement was achieved by the installation of 

additional roof posts to narrow the cited diagonal to the required width. 

The crux of Monterey's arguments that the roof control technical 

investigation conducted by Inspector Gibson in this case was not compensable 

under Section 103(f), is the assertion that the terms "inspections" and 

"investigations" have different meanings and are never used interchangeably 

in the Act. Monterey maintains that the fact that Congress included both 

terms within the coverage of Section 103(a), but used only the term 

"inspection" in Section 103(f), indicates that Congress clearly intended 

that compensation only be paid for inspections and not for investigations. 

In my view, the fact that a technical investigation may focus on ~-. ------<.\ 

one hazard, and may only involve an inspector's review of narrow and \ ,\ technical procedures,is really not that important in distinguishing this \ 

activity from an inspection. A spot inspection often focuses on one 

hazard, and often involves narrow technical matters dealing with ventilation, 

electrical matters, etc., and I fail to see the distinction in the two 

procedures. I have difficulty understanding any real distinction between 

a spot inspection and an investigation or inspection to determine whether 

a mine operator is in compliance with his required roof control plan. 

Simply because MSHA chooses to place different computer code lables on 

the two activities does not ipso facto change or alter the inspector's 

authority or the manner in which he goes about his inspection in any given 

case. I believe that an examination of the prevailing facts, on a case-by-case 

basis, should permit one to distinguish precisely what the inspector is 

1 ') ') ., ...L 1- u I 

J 

i 
actually doing at any given time. As a practical matter, once this is 

done, labeling the activity an "inspection", as opposed to an Investigation", for the purpose of deciding whether it fits the category of "spot" 

inspection for walkaround compensation purposes in line with the D.C. 

Circuit's holding should be a relatively simple matter. 

On the facts of this case, and after careful consideration of all 

of the arguments presented by the parties in support of their respective 

positions, I conclude that the position taken by MSHA and the UMWA is 

correct, and I reject the arguments advanced by Monterey. I conclude 

and find that Inspector Gibson's enforcement ac,tivities at the mine on 

March 23, 1982, constituted a spot inspection, and that the walkaround 

representative was entitled to be compensated for the time spent accompanying 

the inspector. Under the circumstances, Monterey's initial refusal to 

pay the representative constitutes a violation of section 103(f) of 

the Act, and Citation No. 1004993, issued on April 28, 1982, IS AFFIRMED. 

Negligence 

The parties have advanced no arguments concerning negligence. 

However, it seems obvious to me that Monterey's refusal to pay the walkaround representative was based on a legal interpretation of the scope and 

application of section 103(f), and its obvious intent was to test the 

law. Taken in this context, I do not believe that the facts here presented 

lend themselves to an appropriate negligence finding. 

Size of Business and Effect of Civil Penalty on Monterey's Ability to 

Remain in Business. 

The parties have stipulated that Monterey is a large mine operator 

and that the proposed civil penalty will not adversely affect its ability 

to remain in business. I adopt these stipulations as my findings and 

conclusions. 

History of Prior Violations 

The parties have stipulated to the history of prior violations for 

the two years preceding the issuance of the citation in question in this 

case (computer print-out, Exhibit G). I take note of the fact that 

Monterey has paid civil penalty assessments for all but two of 362 citations 

issued during this time period, and for an operation of its size, and 

on the facts of this case, I cannot conclude that the record warrants 

an increase in the penalty assessed in this case. 

Gravity 

The parties have advanced no arguments concerning the gravity of 

the violation, and I conclude that it was nonserious. 
Good Faith Abatement 

The parties have stipulated that Monterey paid walkaround representative 

Frank H. Barrett, Jr., on April 30, 1982, and payment was made within 

the time fixed for abatement. Accordingly, I conclude that Monterey 

demonstrated good faith compliance once the citation issued. 

Penalty Assessment and Order 

MSHA's initial proposed civil penalty assessment of $20 for the violation in question seems reasonable in the circumstances and I accept it. 

Monterey IS ORDERED to pay the $20 civil penalty assessment within thirty 

(30) days of the date of this decision. 

In view of the disposition of the civil penalty proceeding, Monterey's 

contest (LAKE 82-82-R) IS DENIED and DISMISSED. 

Administrative Law Judge 

Distribution: 

Edward H. Fitch, Esq., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Carla K. Ryhal, Esq., P.O. Box·Zl80, 1305 Dresser Tower, Houston, TX 77001 

(Certified Mail) 

Mary Lu Jordan, Joyce A. Hanula, Esqs., UMWA, 900 15th St., NW, Washington, 

DC 20005 (Certified Mail) 

/slk 

1"'Ji.} 

...L.~J•. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

INDUSTRIAL GENERATING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 79-203 

A. C. No. 41-00356-03008 

Mine: Sandow Strip 

DECISION 

Appearances: Donald W. Hill, Esq., Office of the Solicitor 

U.S. Department of Labor, Dallas, Texas, 

Before: 

for Petitioner; 

Mike Holloway, Esq., Dallas, Texas, 

for Respondent. 

Judge Morris 

JUL 8 1983 

The petitioner, the Secretary of Labor, charges respondent with 

violating Title 30, Code of Federal Regulations§ 77.701, a safety regulation 

promulgated under the Federal Mine Safety and Health Act, 30 U.S.C. § 801 et 

seq. The cited regulation provides as follows: 

Metallic frames, casings, and other enclosures of electric 

equipment that can become "alive" through failure of insulation 

or by contact with energized parts shall be grounded by methods 

approved by an authorized representative of the Secretary. 

After notice to the parties a hearing was held in Dallas, Texas on 

October 26, 1982. 

Procedural History 

This matter was originally scheduled for hearing on August 21, 1980 

before Judge Jon D. Boltz. A continuance was granted and the case was reset for December 4, 1981. That hearing date was vacated and this case was 

transferred to the writer on February 5, 1982. 

1 "' . (} ..1... - 1 . 
At a hearing that connnenced on October 26, 1982, in Dallas, Texas the 

Secretary's inspector was unavailable because of a recent injury. The judge 

denied the Secretary's motion for a continuance. Respondent requested a 

hearing on the merits. 

After considerable discussion on the record the parties stipulated to 

certain facts. The judge prepared the formal stipulation and submitted it 

to the parties for comments. No person objected to the facts as prepared by 

the judge. 

The parties waived post hearing briefs. 

Issues 

The issues are whether respondent violated the above regulation and, if 

so, what penalties are appropriate? 

Stipulated Facts 

Inside its maintenance building, or shop, respondent maintains three 

overhead cranes. The cranes have a capacity of 5, 10, and 20 tons (Tr. 10, 

14, 16; Exhibit Rl-R4). They rest and move on railroad rails 30 feet above 

the concrete floor. The cranes, with attached cables, move heavy equipment 

such as bulldozers and scrapers (Tr. 10, 15). 

The area in front of the maintenance building is paved and the area to 

the side of the building is paved with rock (Tr. 18). Lignite, moved by a 

closed conveyor system, passes in front of the shop (Tr. 17). 

There is no significant accumulation of dust particles in the building. 

Any accumulation would be routine dust such as the dust particles in the air 

in any room (Tr. 10, 17). 

The cranes sit on rails which are attached to the sides of the building 

which are grounded (Tr. 6). 

The strip mining itself does not cause any significant amount of dust or 

other substance to accumulate in the air at the maintenance shop (Tr. 10). 

The crusher is two miles away and the strip mining is three miles away (Tr. 

10, 17). No spray painting or anything of that nature is carried on in the 

shop ( Tr • 1 6 ) • 

The MSHA inspector did not go up and look at the wheels and the rails 

(Tr. 19). 

The citation was issued because of some past experience with crane 

systems supposedly similar to this system (Tr. 20). 

The Secretary acknowledges that respondent's expert witnesses, present 

for the hearing, are very knowledgeable (Tr. 19). 
Expert Pittman [who was to have been a witness for respondent] has been 

with the Alco Company for 34 years. The company has over 1,000 cranes 

worldwide. Respondent's cranes, manufactured by HARNISCHFEGER CORPORATION, 

have steel wheels and steel rails that are as shiny as a mirror (Tr. 21, 22). 

The shiny portion is polished raw steel. In 34 years expert Pittman had 

never experienced a failure of a ground because of a dust condition between 

the wheels and the rails. Respondent's expert in his research contacted many 

operators. They all indicated there was no need for an additional ground 

(Tr. 23). 

The National Electrical Code, 1978 Edition, Section 610-61 entitled 

"Grounding" provides as follows: 

All exposed metal parts of cranes, monorail hoists, hoists and 

accessories, including pendant controls, shall be metallically 

joined together into a continuous electrical conductor so that 

the entire crane or hoist will be grounded in accordance with 

Article 250. Moving parts, other than removable accessories or 

attachments having metal-to-metal bearing surfaces, shall be considered to be electrically connected to each other through the 

bearing surfaces for grounding purposes. The trolley frame and 

bridge frame shall be considered as electrically grounded through 

the bridge and trolley wheels and its respective tracks unless 

local conditions, such as paint or other insulating material 

prevent reliable metal-to-metal contact. In this case a separate 

bonding conductor shall be provided. (Transcript at 28). 

Discussion 

Respondent asserts it did not violate 30 C.F.R. § 77.701 since there is 

no possibility that the equipment could become "alive" because of a failure 

of insulation or through contact with energized parts. 

I agree with this view since the metal wheels of the cranes roll on 

metal rails; accordingly, the equipment is grounded by virtue of the 

continuous metal to metal contact between the two surfaces. 

This method of metal to metal grounding is recognized under the National 

Electrical Code (NEC) § 610-61. In its pertinent part it provides as 

follows: 

All exposed metal parts of cranes •.. shall be metallically 

joined together into a continuous electrical conductor so that 

the entire crane ..• will be grounded in accordance with Article 

250 ••.• The trolley frame and bridge frame shall be considered 

as electrically grounded through the bridge and trolley wheels •••. 

(emphasis added). 

1 n A .· -

J_.~ 1~ 
The gist of the Secretary's case appears to be that metal to metal 

grounding is inadequate and that an additional grounding mechanism is 

necessary to insure proper safety. He suggests that dust particles or other 

insulating materials could collect on the wheels or rails and thereby 

eliminate the metal to metal ground. This occurence would allow the crane 

to become "alive." 

I find the Secretary's argument unpersuasive for several reasons. 

The cranes are all housed inside a building. They are 30 feet above a 

concrete floor and they are located approximately three miles from the mining 

area. The amount of dust particles accumulating in the building is minimal 

and insignificant. The citation issued at the inspection is void of any 

notation concerning any dust accumulation. Further, the inspector did not 

examine the wheels and rails for any such accumulation. 

In addition, respondent's expert, (whom the Secretary recognizes as very 

knowledgeable), indicated that the ground of the metal to metal contact would 

not be lost due to the amount of dust that could accumulate here (Tr. 14, 17, 

21). Further, in his 34 years in the field, respondent's expert had never 

seen a ground loss occur under the conditions urged by the inspector. 

Respondent's expert, in researching other operators, universally found no 

need for an additional ground. 

Due to the considerable expertise of respondent's experts I find such 

evidence to be very credible. 

The Secretary appears to advance an argument that the grounding method 

used by respondent is inadequate because accidents, or loss of grounding, had 

occurred where such cranes were not equipped with a supplemental grounding 

mechanism. No documentation or evidence was produced showing loss of ground 

in these or similar circumstances. On the other hand respondent's expert 

testimony, reviewed above, was directly to the contrary indicating no history 

of such accidents. I therefore conclude that there is no history of 

accidents in similar circumstances to suggest that the electrical equipment 

cit~d here could become alive. 

Section 610-61 of the NEC does indicate that a separate ground would be 

necessary if, "[l]ocal conditions, such as paint or other insulating mat.erial 

prevent reliable metal-to-metal contact." However, the parties have stipulated that no significant accumulation of dust occurs in the area of the 

cranes. The record shows that there is no painting in the building which 

houses the cranes and that the building is used exclusively for maintenance 

purposes. No mining activity takes place (Tr. 16). There was also testimony 

by respondent's expert that there were no insulating materials on the wheels 

or rails (Tr. 23). 

I conclude that there is no realistic possibility that the cranes 

operated by respondent could become alive by reason of failure of insulation 

or contact with energized parts. No violation of 30 C.F.R. § 77.701 

occurred. 
It further follows that respondent is not required to maintain 

additional grounding that it installed to abate the citation issued in this 

case. 

Based upon the foregoing findings of fact and conclusions of law I enter 

the following 

ORDER 

Citations No. 792310 and 792311 and all proposed penalties therefor are 

vacated. 

Distribution: 

Donald W. Hill, Esq. (Certified Mail) 

Office of the Solicitor 

United States Department of Labor 

555 Griffin Square, Suite 501 

Dallas, Texas 75202 

Mike Holloway, Esq. (Certified Mail) 

1511 Fidelity Union Life Building 

Dallas, Texas 75201 

/blc 

1 .·' ~ .. , ....L. - i 'k 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

JAMES ELDRIDGE, 

Complainant 

v. 

SUNFIRE COAL COMPANY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 

July 11, 1983 

Complaint of Discrimination 

Docket No. KENT 82-41-D 

ORDER AWARDING BACKPAY AND LEGAL FEES 

In response to my Order of April 5, 1983, the parties filed their 

claims and supporting arguments with respect to the compensation due 

the complainant in this case. Respondent's "calculations of lost wages", 

filed with me on April 27, 1983, covers the period from August 6, 1981, 

the date of the complainant's discharge, through and including September 9, 1982, 

the date on which the respondent claims it ceased operations and terminated 

its work force, and the date that the complainant would have been finally 

terminated had he continued in respondent's employment. Respondent's 

calculations for the total gross wages, without deductions for withholdings, 

state and local taxes, which the complainant would have earned had he 

continued in respondent's employment is $18,634.60, and those calculations 

were arrived at by an affidavit executed by respondent's personnel director. 

Included in those calculations is the sum of $17,879.40 in gross wages, 

plus accrued vacation time in the amount of $755.20, for a total of $18,634.60. 

The wage calculations include a weekly summary for each company payroll 

period in 1981 and 1982, the hours worked, the hourly wage, and periods 

of lay-offs. The calculations for 1981 are based on the payroll periods 

ending August 15, 1981 through December 25, 1981, and for the year 1982, 

they are computed for the payroll period ending January 4, 1982, through 

September 10, 1982, when the respondent asserts the mine was closed and 

all employees were terminated. 

In addition to its calculation of the complainant's gross wages, 

respondent asserts that the complainant earned gross wages in the amount 

of $255.20 as an employee of Linefork Coal Corporation, and the sum of 

$3,005 as an employee of P.M. Coal Company, and in support of this 

assertion included copies of the complainant's withholding statements 

for these employments subsequent to his discharge. 

Respondent asserted that subsequent to his discharge, the complainant 

had received unemployment insurance benefits in the amount of $3,444; $560 

from an extended benefits claim; and $2,240 for federal supplemental 

compensation, the sum of which totals $6,244. Respondent maintained that 

it is entitled to deduct this amount from complainant's gross wages, and 

based on its submitted calculations, stated that the total gross wages 

which complainant should receive subsequent to his discharge of August 6, 1981, 

is $9,130.40, based on the following: 

l n 1,.- .-.: .. ' ~) 
$18,634.60. 

- 3,260.20. 

$15,374.40 

- 6,244.00. 

$ 9'130. 40. • 

• Wages complainant would have earned had he 

not been discharged. 

Less wages earned subsequent to discharge. 

Less unemployment benefits and compensation. 

Total respondent claims is due. 

With regard to any award of costs and attorneys fees, respondent 

argued that the complainant in this case was represented by the Appalachian 

Research & Defense Fund of Kentucky, Inc., an organization which respondent 

believes is federally funded. Although recognizing the fact that an 

attorney would ordinarily be entitled to be compensated for services 

performed in representing the complainant in this matter, respondent 

apparently takes the position that since the legal services organization 

which pursued his claim is federally funded, by its mandate, it should not 

have accepted this case. By doing so, respondent infers that the organization 

which represented the complainant provided free legal service, and the 

complainant incurred no legal expenses in pursuing his claim. Accordingly, 

respondent concluded that no amount should be awarded as attorney's fees 

for complainant's legal representation in this case. 

In its response to my Order of April 5, 1983, complainant's counsel 

took issue with the following items submitted by the respondent in its 

calculation of lost wages, and requested an opportunity for additional 

discovery: 

--lack of documentation for the assertion that complainant would have worked less than 40 hours during 

several weeks of the back-pay period. 

--lack of documentation to support the assertion that the 

complainant would have been laid off during a three 

month period from October-December 1982. 

--failure by the respondent to address the question of 

reinstatement, particularly in view of information 

-received- by the complainant that any sale of Sunfire 

Coal Company includes a clause providing for reinstatement by the purchaser of laid-off miners. 

Complainant's calculations of the backpay and costs due are stated 

in a copy of a letter dated March 24, 1983, to respondent's counsel, and they 

are as follows: 

Wages through September 10, 1982 

Minus wages earned 

Back owed 

Interest 

Backpay + interest 

Mileage 

TOTAL 

1 n 1 · - J..,;.,• b 

$25,804 

- 3,260 

$22,544 

x .12 

$ 2,705 

$25,249 

+ 92 

$25,341 
Complainant's calculations of attorneys' fees and costs are reflected 

in itemized exhibits which show the dates the work and expenses were 

performed and incurred, the type of work or expense, and the number of 

hours devoted to each task. In summary, these fees and costs, for legal 

services through October 21, 1982, are as follows: 

Tony Oppegard: 284.3 hours at $70/hr. 

Stephen A. Sanders: 34.5 hours at $50/hr. 

attorneys' fees 

mileage 

phone 

other expenses 

(depositions, transcript, witness fees, 

etc.) 

TOTAL 

$19,901 

1,625 

$21,526 

+ 289 

+ 53 

+ 304 

$22,172 

In response to the respondent's assertion that unemployment compensation benefits should be deducted from any back-pay due the complainant, 

complainant's counsel asserted that such benefits should not be considered 

interim earnings, and thus should not be deducted from any backpay award, 

and in support of this argument he cites 3 NLRB Casehandling Manual § 10604.1, 

Bradley v. Belva Coal Co., 3 FMSHRC 921 (1981); Neal v. Boich, 3 FMSHRC 443 

(1981); Wilson & Rummel v. Laurel Shaft Const. C~2 FMSHRC 2623 (1980); 

NLRB v. Pan Scape Corp., 607 F.2d 198 (7th Cir. 1979); Marshall v. Goodyear 

Tire & Rubber Co., 554 F.2d 730 (5th Cir. 1977). 

In response to the respondent's argument that the complainant has 

incurred no legal expenses in pursuing his claim because of legal representation furnished him by the Appalachian Research & Defense Fund of Kentucky, 

Inc., a legal services organization, complainant's counsel states that 

this argument is wholly without merit and that similar challenges have 

been rejected not only by a Commission Judge, Bradley v. Belva Coal, 3 FMSHRC 

921, 924 (1981), but by the eight U.S. Circuit Courts of Appeals that 

have considered the issue. Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979); 

Weisenberger v. Huecker, 593 F.2d 49 (6th Cir. 1979); Mid-Hudson Legal Services 

v. G & U, Inc., 578 F.2d 34 (2nd Cir. 1978); Perez v. Rodriguez Bou, 575 

F.2d 21 (1st Cir. 1978); Rodriguez v. Taylor, 569 F.2d 1231 (3rd Cir. 1977); 

Bond v. Stanton, 555 F.2d 172 (7th Cir. 1977), cert. denied, 438 U.S. 916 

(1978); Sellers v. Wallman, 510 F.2d 119 (5th Cir. 1975); Brandenburger v. 

Thompson, 494 F.2d 885 (9th Cir. 1974). 

Complainant's counsel points out that respondent has cited no authority 

to support its argument that the Appalachian Research & Defense Fund of 

Kentucky, Inc., should not have accepted this case because of its Congressional 

"mandate". Counsel states further that Federal Courts have uniformly held 

that challenges to the propriety of Legal Services programs representing 

clients in particular access are improper in a lawsuit because eligibility 

for federally-funded legal services is a question of internal program 

administration, to be resolved according to administrative procedures. Harris 

v. Tower Loan of Mississippi, 609 F.2d 120 (5th Cir. 1980); Martens v. Hall, 

444 F.Supp 34 (S.D. Fla. 1977); Jacobs v. Board of School Comm'rs, 349 F.Supp. 

605 (S.D. Ind. 1972), aff'd, 490 F.2d 601 (7th Cir. 1973), dismissed as moot 

on other grounds, 420 U.S. 128 (1975). 

1~·11 
After receipt of the responses to my April 5, 1983 o~der, I issued another 

order on May 3, 1983, granting the complainant's motion for further 

discovery, and I also ordered production of certain personnel and payroll records in the custody of the respondent for the complainant's 

review. Subsequently, complainant's counsel filed a motion for a subpoena 

duces tecum requesting certain payroll records for the years 1980-1983, 

a second set of interrogatories, and a motion for a hearing date. Respondent 

has filed oppositions to these motions and states that the company has 

ceased mining operations and no longer has any regular employees with 

knowledge of the further information requested by the complainant. 

The respondent has answered complainant's first set of post-hearing 

interrogatories and has also made available certain company payroll and 

personnel documents requested by complainant's attorney for their joint 

review. Complainant's counsel states that he has reviewed the information 

provided, but has advanced no valid argument justifying any subpoena duces 

tecum for these records. Accordingly, the motion for a subpoena IS DENIED. 

Although I did indicate in one of my previous orders that I would 

consider scheduling a hearing if the parties could not agree on the 

compensation due to the complainant, I have reconsidered the matter and 

have now decided that any further hearing in this case is not warranted. 

Accordingly, complainant's motion for a hearing date IS DENIED. 

With regard to the complainant's motion for additional discovery, I 

believe that there is enough information of record to enable me to rule on 

the compensation question without the need of further discovery. It seems 

obvious to me that counsel for both sides are at odds with each other over 

the claimed compensation, and any further discovery will be nonproductive. 

Accordingly, complainant's motion for further discovery IS DENIED. 

Attorneys Fees and Costs 

Respondent's objections to the awarding of any attorney fees and other 

costs of litigation is limited to a legal argument that Counsel Opuegard's 

employer is a quasi-public corporation funded in part by Federal funds. 

Counsel Roark has filed no objection to the reasonableness of the claimed 

attorney fees and costs, and Counsel Oppegard has filed a detailed itemized 

statement of expenses and costs. 

After careful review and consideration of the arguments and documentation 

filed by the parties, I conclude and find that respondent's arguments 

concerning the eligibility of the Appalachian Research & Defense Fund of 

Kentucky, Inc., to be compensated for its services in this case are without 

merit and they are rejected. I conclude and find that Mr. Oppegard's 

employing agency is entitled to be compensated for the services performed 

on behalf of Mr. Eldridge in pursuing his claim in this case. I also conclude 

and find that the claimed legal fees and costs itemized by Mr. Oppegard, 

including the $92 in mileage costs incurred by Mr. Eldridge, appear to 

be reasonable and they are APPROVED. 
Complainant's unemployment compensation benefits 

Respondent's arguments that any unemployment payment·s made to 

Mr. Eldridge should be deducted from any award of backpay are REJECTED. 

I accept the arguments advanced by complainant in support of the proposition 

that such payments should not be deducted. If such payments to Mr. Eldridge 

are illegal under state or local laws, I leave it to those jurisdictions 

to pursue their claims against Mr. Eldridge. 

Complainant's backpay 

The only thing that the parties agree on is that the sum of $3260, 

representing wages earned by Mr. Eldridge during the time he was discharged, 

should be deducted from any base backpay figure. Although the record 

contains a letter of June 17, 1983, indicating that Mr. Eldridge is willing 

to compromise with the respondent by accepting a base backpay figure of 

$25,804, less interest, in exchange for Mr. Eldridge's foregoing his 

additional claims for overtime, vacation time, and a bonus, the parties 

obviously cannot compromise or otherwise settle the matter of compensation. 

The initial submission on behalf of Mr. Eldridge concerning his claimed 

backpay is in the form of a letter from Counsel Oppegard to Counsel Roark, 

stating that his earnings through September 10, 1982, were $25,804. Although 

Counsel Oppegard submitted a detailed itemized breakdown of hours worked 

in support of his claimed attorney fees, the claimed backpay is simply 

stated as a lump sum figure with no supporting documentation or itemization. 

On the other hand, respondent's submissions concerning Mr. Eldridge's 

back wages are supported by an itemized breakdown, by payroll period, with 

supporting affidavits. 

With regard to the respondent's calculations of lost wages, Mr. Eldridge's 

counsel takes issue with the assertion by the respondent that Mr. Eldridge 

would only have worked 36 hours during the pay period ending 3/20/82 and 32 

hours during the pay period ending 6/11/82. Counsel Oppegard states that 

the respondent's payroll records reflect that 74 mine employees worked 

a full 40 hour week during the first disputed payroll period, and that 86 

mine employees worked a full 40 hour week during the second disputed period. 

He therefore concludes that Mr. Eldridge would more than likely have worked 

full 40 hour weeks during these periods which are in dispute. After review 

and consideration of the information furnished by the parties concerning 

these disputed pay periods, I conclude that Mr. Eldridge should be compensated 

for the full 40 hour weeks in question, rather than the 32 hour and 36 hour 

weeks as stated by the respondent. 

It seems clear to me that the backpay period in this case begins 

on August 6, 1981, the date of Mr. Eldridge's discharge, and ends on 

September 9, 198;, the date that the mine closed and mine operations ceased. 

Counsel Oppegard s lump sum backpay claim of $25,804, up to and including 

Sep~ember 10, 1982, obviously does not take into account the 1981 lavoff 

periods shown in respondent's detailed statement of wages earned tw~ davs 

on July 2 and 9, 1982, where respondent claims Mr. Eldridge was ~ot due · 

any vacation pay, and some possible overtime which may have been earned 

by Mr. Eldridge but omitted in the respondent's calculations. 
The affidavits and other information filed by the respondent 

indicates that the Sunfire Coal Company has ceased all mining operations 

and no longer has any regular employees. Given these circumstances, I 

believe that any further efforts attempting to document such matters as 

speculative and estimated overtime hours, layoffs which took place over 

a year or so ago, etc., etc., would be a fruitless exercise, and would 

only result in additional delays in bringing this matter to finality, 

plus additional legal costs, none of which are to Mr. Eldridge's benefit. 

Accordingly, in order to bring this matter to finality, I will decide the 

backpay compensation due Mr. Eldridge on the basis of the information 

of record, and in particular, the detailed compensation calculations 

submitted by the respondent, as supported by a sworn affidavit of its 

personnel director. On the basis of that information, which I find 

credible, I award backpay and other compensation as follows: 

Total 1981 Gross Wages .• 

Total 1982 Gross Wages .. 

12 additional work hours for 

payroll periods ending 3/20 

$ 3,616.00 

$ 14,263.40 

and 6/11/82 at $11.80 hrly. rate ... $ 141. 60 

$ 18,021.00 

Accrued Vacation Days (8) $ 755.20 

$ 18,776.20 

Minus wages earned. .-$ 3,260.00 

$ 15,516.20 

Interest at 12% . . $ 1,861.95 

$ 17,378.15 

Mileage expenses incurred by 

Hr. Eldridge . . . . . . . . $ 92.00 

$ 17,470.15 

ORDER 

TOTAL 

Respondent shall pay to Mr. Eldridge the sum ~f $17,470.15, less any 

amounts withheld pursuant to state and Federal law, and payment is to be 

made within thirty (30) days of the date of this Order. 

Respondent shall pay to the Appalachian Research & Defense Fund of 

Kentucky, Inc., Hazard, Kentucky, the sum of $22,172, as attorneys fees 

and legal costs, and payment is likewise to be made within thirty (30) 

days of the date of this Order. 

Administrative Law Judge 

Distribution: 

J. L. Roark, Esq., Craft, Barret & Haynes, P.O. Drawer 1017, Hazard, KY 

41701 (Certified Mail) 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of Ky., Inc., Box 

360, Hazard, KY 41701 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 'i983. ) . ! ... :;: 

JIMMY SIZEMORE and 

DAVID RIFE, 

DISCRIMINATION PROCEEDINGS 

Complainants Docket No. KENT 83-130-D 

v. 

DOLLAR BRANCH COAL COMPANY, 

Respondent 

MSHA Case Nos. CD 83-07 

CD 83-10 

Appearances: 

Before: 

No. 3 White Oak Mine 

DECISION 

Tony Oppegard, Esq., and Martha P. Owen, Esq., 

Hazard, Kentucky, for Complainants; 

Thomas w. Miller, Miller, Griffin & Marks, 

Lexington, Kentucky, for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

Complainants Jimmy Sizemore and David Rife contend they were 

discharged from their employment by Respondent, on November 10, 

1982, because of activity protected under the Federal Mine Safety 

and HeaJ_J:.h Act of 1977, 30 u.s.c. § 801 et seq. ("the Act"). 

Pursuant to notice, the case was called for hearing on April 18, 

1983, in Hazard, Kentucky. At the commencement of the hearing, 

the parties stated that a settlement had been reached with respect 

to the claim of David Rife, whereby Rife agreed to withdraw his 

complai~t before the Commission, and to withdraw a complaint filed 

with the National Labor Relations Board, and Respondent agreed to 

reinstate Rife effective April 25, 1983, at the same rate of pay 

he wasrearning when discharged. Based on the settlement agreement, 

this proceeding will be dismissed insofar as it involves the complaint of David Rife. 

Jimmy Sizemore, Roscoe Collett, Donnie Mosley, David Rife, 

Ricky Napier, Cecil Harris, and Glenn Caldwell testified on behalf 

of Complainant Sizemore; John Chaney, Ronnie Napier and Daryl 

Napier testified on behalf of Respondent. Both parties have filed 

posthearing briefs. Based on the entire record and considering 

the contentions of the parties, I make the following decision. 

1251 
FINDINGS OF FACT 

Complainant Sizemore was employed on the third shift at 

Respondent's mine as a roof bolter. The third shift was a 

maintenance shift. The hours of work for this shift were changed 

in approximately October, 1982, from 11:00 p.m. - 7:00 a.m., to 

2:00 a.m. - 10:00 a.m. The third shift foreman was Ronnie Napier. 

Employees on the shift were Jimmy Sizemore, David Rife, Delbert 

Couch (also known as "Lightning"), and Ricky Napier. Donnie Mosley 

also worked on the third shift as outside man, but his hours continued to be 11:00 p.m. to 7:00 a.m. All of the third shift miners 

were unhappy about the change in hours of work. The first shift 

worked from 6:00 a.m. to 2:00 p.m. and the second shift from 

4:00 p.m. to 2:00 a.m. Thus, there was an overlap of 4 hours in 

the working time of the third and first shifts. Sizemore complained 

that he was required to install bolts in 4 hours in the cuts made 

by the second shift and it was not possible to accomplish this in 

the allotted time. When the third shift arrived, Sizemore discontinued bolting and did general cleanup work. 

During the afternoon of November 8, 1982, Ronnie Napier, 

Delbert Couch and David Rife were out drinking beer and playing 

pool. They were travelling in Ronnie Napier's jeep. Sometime in 

the evening, Rife fell asleep in the back of the jeep. Napier and 

Couch decided to stage a protest at the mine because of the change 

in the hours of the shift. They drove to the mine site, arriving 

some time between 10:00 p.m. and midnight. Napier and Couch had 

consumed approximately 10 bottles of beer each and Rife had drunk 

six. Couch continued to drink after arriving at the mine. Napier 

had a rifle in his possession and Couch had a pistol. 

The second shift was underground mining coal when they 

arrived. Napier called the second shift foreman, Terry Ward, from 

the mine office and directed him to bring his crew out of the mine. 

When they didn't respond quickly enough, he directed the second 

shift outside man to cut off the power to the mine, which resulted 

in shut-Qdng off the mine fan. The second shift then came out of the 

mine. Couch called Glenn Caldwell, the mine superintendent, and 

Ronnie Napier told him to come out to the mine. Caldwell called the 

police put they refused to come out to the mine, after being told on 

calling the mine office that there was no trouble there. After 

further telephone conversations between Caldwell and Ronnie Napier, 

Caldwell agreed to come out to the mine at 5:00 a.m., believing that 

this would allow time for Napier to sober up. 

Napier, who was armed told the second shift crew that they 

were going on strike because of the change in working hours, The 

second shift crew remained outside the mine and were instructed to 

remain on the mine property. Napier then gave his rifle to Terry 

Ward who placed it in Napier's jeep. Couch kept his pistol. Both 

Couch and Napier were intoxicated. 

1 '' ~ .) 

.l_ . ~ .. l.....J ··-
Complainant Sizemore arrived at the mine at approximately 

1:45 a.m. prepared to begin work at 2:00 a.m. When he saw the 

second shift outside, he went to the mine office. Ronnie Napier 

was there and was complaining about the change in hours and a 

problem he was having with insurance. Since the power had been 

shut off, none of the third shift went into the mine. Napier 

told them no one could go to work until Caldwell came, and said 

or implied that no one should go home either. The third shift 

workers therefore remained in or around the mine office. Between 

2:00 a.m. and 5:00 a.m., Napier and Couch refused to permit the 

loading of coal trucks which were at the mine waiting to be 

loaded. Napier shot a hole in the door of the mine office and 

both Napier and Couch shot at insulators on light poles or power 

lines. A hole or holes had been kicked through the wall of the 

mine office. Beer cans were scattered over the parking lot. 

Tires had apparently been cut. 

Caldwell arrived at the mine about 5:00 a.m. and met with the 

third shift miners all of whom had remained at the mine site. 

Ronnie Napier and Delbert Couch did most of the talking, and voiced 

complaints of the change in hours of the shift, an insurance problem 

Napier had, and Couch's demand for a raise in pay. When he was 

asked what his complaint was, Sizemore told Caldwell he would like 

to see the hours changed back to the old schedule. 

Sizemore had not been drinking or taking drugs. He did not 

carry a gun. He was not involved in calling the second shift from 

the mine or in shutting down the mine. He was ready and willing 

to work his shift. He was not involved in cutting off the power 

to the mine or in d~maging mine property. 

FolJf.owing his meeting with the third shift miners, Caldwell 

discussed the matter with John Chaney, the owner of the mine, and 

Daryl Napier, the mine superintendent. Chaney was told, or at 

least understood, that the entire third shift was involved in 

drinkinj and property destruction. Based on that understanding, 

he told Caldwell to fire all the miners on the third shift. "I 

told Glenn to fire everybody, that way we would for sure have the 

right people." (Tr. 136). Later Ricky Napier was rehired when 

Chaney 1found out he did not participate in the drinking and 

destruction of mine property. 

ISSUE 

Whether Complainant Sizemore was discharged for activity 

protected under the Mine Safety Act. 

1°~i ..1..hJU 
CONCLUSIONS OF LAW 

To establish a prima facie case of discrimination under the 

Act, Complainant must show that he was engaged in activity protected by the Act and that his discharge was motivated in any part 

by the protected activity. Secretary/Pasula v. Consolidation Coal 

Company, 2 FMSHRC 2786 (1980), rev'd on other grounds sub nom. 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3rd Cir. 

1981); Secretary/Robinette v. United Castle Coal Co., 3 FMSHRC 803 

(1981); Secretary/Bush v. Union Carbide Corporation, 5 FMSHRC 

(1983). --

Comolainant contends that he was fired in part for failing to 

work on November 9, 1982, and that his· failure ~o enter the mine 

and work his shift was protected activity. He asserts that it was 

protected activity because to enter the mine when the power (including the fan) was shut off and the preshift examination had not been 

performed would be (1) dangerous and (2) in violation of sections 

303(d) (1) and 303(t) of the Act. 

It certainly is true that it would have been dangerous for 

Complainant to enter the mine when his shift was scheduled to 

begin on November 9. The danger, however, arose not so much from 

the fact that the fan was shut off and the mine had not been 

preshifted as from the fact that an intoxicated man with a gun 

made it clear that no one should.enter the mine. Complainant 

recognizes that this is not a case of a refusal of a miner to 

enter a dangerous area or perform dangerous work. The mine was 

shut down in part because of a labor dispute concerning hours of 

employment, and in part because two employees, including a supervisor, vrere drunk. It is stretching the notion of protected 

activity under the Mine Act to hold that it includes not going to 

work under these circumstances. 

As~uming, however, that the "activity" was protected, was 

Complainant's discharge motivated in any part by such activity? 

It is true that Caldwell testified before the Kentucky 

Unempldyment Commission that Sizemore was fired because he didn't 

go to work or go home. I think it distorts the real situation, 

however, to conclude that Sizemore (or any of the third shift 

miners) was fired for failing to enter an unsafe mine. The reality 

is that they were all fired because management believed that the 

entire third shift was involved in shutting down the mine, drinking 

on the mine site, and wantonly destroying mine property. So far as 

the record before me shows, management was in error about Sizemore's 

participation in any of these activities (as it was, and admitted 

it was, in error concerning the participation of Ricky Napier). 
Because his discharge was based on false information, it 

seems grossly unfair. However, the Commission has no responsibility to assure fairness in employment relations or to determine 

whether an employee was discharged for cause, but only to protect 

miners exercising their rights under the Act. Complainant was 

unfortunately caught by a collective - guilt dragnet and discharged 

though, according to this record, he was entirely innocent of the 

charges properly levelled at some of his fellow miners (including 

his foreman). · 

I conclude that the discharge of Complainant Sizemore was not 

motivated in any part by activity protected under the Act. Therefore, no violation of section 105(c) has been established. 

ORDER 

Based upon the above findings of fact and conclusions of law, 

(1) the complaint of David Rife is WITHDRAWN and the proceeding is 

DISMISSED pursuant to a settlement agreement between Rife and 

Respondent; (2) the Complaint of Jimmy Sizemore and this proceeding 

is DISMISSED for failure to establish a violation of section 105(c) 

of the Act. 

Distribution: 

/I (Z,tM-£-~ klffvv cJ..,,,·-TC:/(_ J James A. Broderick 

Administrative Law Judge 

Tony Opp~gard, Esq., and Martha P. Owen, Esq., Appalachian 

Research and Defense Fund of Kentucky, Inc., P.O. Box 360, 

Hazard, KY 41701 (Certified Mail) 

Thomas W. Miller, Esq., Miller, Griffin & Marks, 700 Security 

Trust Bllilding, Lexington, KY 40507 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 Jul ... , ji1'11:~_; .! ... ~ 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AMERICAN BORATE COMPANY, 

Respondent 

DOCKET NO. WEST 81-301-M 

A.C. No. 04-04218-05014 F 

MINE: Bi 11 ie 

DECISION 

Appearances: Theresa Kalaski, Esq., Office of the Solicitor 

U. S. Department of Labor, Los Angeles, California, 

for Petitioner; 

Stephen G. Saleson, Esq., San Bernardino, California, 

for Respondent. 

Before: Judge Vail 

STATEMENT OF CASE 

On December 2, 1980, a miner at American Borate's Billie mine was killed 

when struck by a slab of rock that fell from the roof. The Secretary of 

Labor, after investigating the accident, issued to American Borate a 107(a) 

irrnninent danger withdrawal order. The Secretary also alleged American Borate 

violated 30 C.F.R. § 57.3-20 which reads: 

Mandatory. Ground support shall be used if the operating 

experience of the mine, or any, particular area of the mine, 

indicates that it is required. If it is required, support, including timbering,_ rock bolting, or other methods shall be 

consistent with the nature of the ground and the mining method 

used. 

In this proceeding, American Borate contests both the Secretary's finding of 

a violation and the proposed penalty based upon it. 

A hearing was held, pursuant to notice, in Las Vegas, Nevada, on March 

2, 1982. Witness for the Secretary was Vaughn Duaine Cowley, official of the 

Mine Safety and Health Administration (MSHA), who investigated the accident. 

Witnesses for American Borate were Dale Parson Bess, shift superintendent in 

charge on the day the fatality occurred, Charles Garrett, mine manager at the 

Billie mine, Lupe Regalado, employed in the safety department to provide 

employees the forty hours and annual refresher training, Henry Mcintire, 

1 ,. \ ~ .... 1" 

...L ... JO 
associate safety engineer for mining for the Division of Industrial Safety, 

State of California, and Richard Russel Renner, Chief Criminologist for the 

Las Vegas Metropolitan Police Department, Las Vegas, Nevada. 

Both parties were afforded the opportunity to file post-hearing briefs 

but only American Borate chose to do so. Having considered American Borate's 

brief and contentions of the parties, and the whole record, I make the 

following decision. To the extent that the contentions of the parties are 

not incorporated in this decision, they are rejected. 

FINDINGS OF FACT 

1. American Borate's Billie mine is an underground borate minerals, 

primarily colemanite, mine near Death Valley, California. Mining proceeds by 

cut and fill using room and pillar method. Drifts are cut with a continuous 

mining machine followed by roof bolting using mats with five foot roof bolts 

on four foot centers. 

2. On December 2, 1980, miners Donald Pribbenow and Orval Duncan were 

assigned the task of rock bolting in the No. 1 south cross cut off the No. 1 

drift west of the 1160 level. Immediately prior to the fatal accident that 

occurred this day, they had installed approximately twenty bolts, four or 

five mats, and one roll of wire across the back near the face. When Pete 

Quick, the shift foreman left this area of the mine, Pribbenow and Duncan had 

approximately two more bolts to put in with the existing mat in place. 

Shortly thereafter, a slab of rock fell from the roof striking Duncan and 

causing his death. 

3. The process used in the Billie mine for roof bolting consisted of 

securing steel mats onto the back of the drift with a split set roof bolt 

with a ring and six by six inch or eight by eight inch plate on the bottom to 

hold the mat against the roof. Mats are steel straps five to eight feet long 

with holes drilled for the roof bolts. These mats are placed over the wire 

mesh used to control the roof (Tr. 20-21). 

4. Duncan and Pribbenow had both received the required forty hour 

training course in mine safety followed by an eight hour refresher course. 

Both miners had worked for American Borate approximately 12 months (Tr. 

119-120). 

5. At approximately 5:45 a.m., Duncan and Pribbenow drove a Young buggy 

to a point where the back railing on the work platform was approximately 2 to 

2 1/2 feet from the face of the drift. The roof bolts and steel mats had 

been installed on the roof up to a point 4 to 6 feet from the face. Duncan 

and Pribbenow were standing on the work platform of the Young buggy operating 

a jackleg used to drill holes in the roof for the bolts. The two miners were 

approximately two to three feet back of the back railing of the Young buggy 

drilling a hole in the roof two feet back from the face. This hole was 

drilled at a seventy degree angle. While standing in this position, Duncan 

and Pribbenow were under supported roof (Tr. 51-59, and Resp. Ex. R4). A 
slab of rock fell striking the Young buggy on the left side rail and tipping 

onto the platform hitting Duncan. 

6. Vaughan Duaine Cowley, investigating the accident for MSHA, issued a 

107(a) imminent danger withdrawal order to American Borate on December 4, 

1980, which is the subject of this case. In the order, American Borate is 

cited for an alleged violation of "57.3-20" and, under "condition or 

practice" reads, 

A ground fall fatality occurred in the underground workings. 

The ground support used was not consistent with the nature 

of the ground and mining method because temporary support was 

not used to protect miners working ahead of permanent supported 

ground. The mine operator shall immediately institute a program of temporary ground support to protect mine workers working under ground not permanently supported and shall develop 

and institute standardized ground support plans for each type 

of mine opening. The ground support plan shall be submitted 

to an authorized representative of the Secretary for review 

and shall be updated as mining conditions change. 

ISSUES 

1. Was American Borate properly charged with a violation of the ground 

support requirements under the standard cited? 

2. Did the violation occur as alleged and, if so, what is the 

appropriate penalty? 

DISCUSSION 

The Secretary has the burden in this case to prove that a violation of 

the cited standard occurred. Based upon a careful review of all of the 

evidence of record, I find that the alleged violation was not proven and that 

the citation should be vacated. This conclusion is based principally on the 

testimony of the Secretary's only witness. Inspector Cowley testified that 

upon arriving at the Billie mine after notification of the fatal accident, he 

went underground to investigate. Upon arriving at the location in the mine 

where the fall had occurred, he discovered that the Young buggy on which the 

miners had been standing and working had been moved to allow the deceased 

miner to be removed. Cowley was able to determine where the Young buggy had 

previously been standing from the tire tracks in the wet ground. Cowley was 

given information surrounding the facts of the accident by Pribbenow who had 

been working with Duncan when the roof fall occurred. Pribbenow told Cowley 

that after Quick, the shift foreman left, he and Duncan decided to put up two 

more mats between the last existing mat and the face. They backed the Young 

buggy up to the face and started to drill a hole for a roof bolt. Duncan had 

just changed the starter drill on the jackleg drill to a four foot steel and 

Pribbenow started drilling in the hole again when the slab fell hitting on 

the left side rail of the Young buggy and bouncing into the flatbed area 

striking Duncan. 

1''r-:; 

..l. '·- J (j 
Cowley testified that during the first day's investigation he determined 

that the back of the buggy was approximately two feet from the face but that 

he did not locate the hole in the roof where the drill had been placed. The 

next day, after a conversation with Pribbenow, Cowley went back to the scene 

and located the drill hole. On direct examination, Cowley stated that after 

finding the drill hole, he put a tamping stick or scaling bar in the hole and 

ran an imaginary line down to where he though the jackleg drill would be and 

concluded that the two miners were under unprotected roof (Tr. 33). Based 

upon this, Cowley concluded the miners should have used temporary support, 

either steel hydraulic jacks or wooden timber stalls, to continue the roof 

bolting in this area. Several days later, on December 4, 1980, Cowley issued 

the 107(a) order and indicated that when American Borate came up with a 

positive plan for ground control, he would modify the order (Tr. 37). 

The record shows that American Borate had an approved roof control plan 

which had been in existence for sometime. The method of roof control being 

used at the time of the accident was consistent with the roof control plan 

and in compliance with its requirements. Cowley stated that he did not cite 

American Borate for a violation of their roof control plan but rather to improve on the plan by incorporating temporary ground control methods along 

with what already was required (Tr. 74). 

At the hearing, Cowley testified on cross-examination that the back of 

the Young buggy was approximately 2 to 2 1/2 feet from the face of the drift 

and that the hole which was being drilled was also approximately 2 1/2 feet 

from the face. He also stated that the last row of mats supporting the roof 

was 4 to 6 feet from the face, and that he determined the hole being drilled 

was at a 70 degree angle to the vertical. He determined that the jackleg 

drill was most likely located in the middle of the flat bed of the Young 

buggy and probably four feet from the back railing. In response to questions 

by counsel for American Borate, Cowley testified as follows (Tr. 58-60): 

Q. Apparently, Mr. Cowley, perhaps I am wrong but apparently 

based on what we have drawn here from your facts and figures 

it appears that the person at the time the drilling was done 

would have been standing under supported ground, is that correct, 

sir? 

A. It shows that, yes. 

Q. Do you wish to change your opinion now as to whether at the 

time of the accident Mr. Duncan was standing under supported or 

unsupported ground? 

A. No, my figures 1s wrong. 

Q. Your figures? 

A. On that distances. 

Q. Well, what I am saying 1s do you think that what we have 
drawn here today as respondent's four is more accurate based 

on all the statements, and measurements, and photographs that 

were taken than perhaps the measurements that you made that 

morning, the 4th. 

A. Yes. 

Q. Thank you, sir. You may resume the witness stand. 

(Witness resumed the witness stand) 

Q. So as of today then it is your belief that "in fact based on 

representations as we have gone through them today that Mr. Duncan 

was standing under supported ground at the time of the accident 

rather than unsupported ground? 

A. I guess. 

Q. And if he was standing under unsupported ground then the fact as 

to whether there had been temporary ground support placed or not 

would have no bearing on the accident, isn't that true? 

A. On those measurements, yes. 

Q. Would it not be correct, sir, based on our drawing today and 

the accuracy of it that in fact a violation did not occur on the 

morning of December 2nd, 1980? 

A. According to that diagram there was no violation. 

Cowley was asked the following questions by this writer (Tr. 76-79). 

Q. Now, is it your contention that Duncan was standing under unsupported roof when he was standing there by A? 

A. Not according to that, sir. 

Q. Well, what is your contention then as far as what you stated 

here as far as the violation is concerned there? 

A. My measurements was lousy. 

Q. If Duncan were standing under supported roof do you still 

feel that there was a violation by the Company of the Section 

fifty-seven point three dash twenty? 

A. If he was standing under supported ground there was none. 
I conclude from the testimony above and other evidence presented in this 

case, that the Secretary failed to prove by a preponderance thereof a 

violation of the cited regulation. In the course of the inspector's 

testimony, he has stated that if the miners were not working under 

unsupported roof, there was no violation. The most credible evidence 

indicates that the miners were under supported roof when the fall occurred. 

The procedure used in the mining process by American Borate in this 

instance was in compliance with the approved roof control plan and what had 

been successful in the past and was considered by management as proper 

procedure for the area Duncan and Pribbenow were working in. In the normal 

sequence of its mfning operations American Borate has taken steps to provide 

adequate support consistent with the nature of the ground in compliance with 

the cited regulation and thus, the Secretary has failed to sustain the burden 

of proof by a preponderance of the evidence that the regulation was violated. 

ORDER 

Citation No. 380358 and the proposed penalty therefore are VACATED. 

Distribution: 

Virgi 1 Wfvail 

Adminisfrative Law Judge 

Theresa Kalaski, Esq. (Certified Mail) 

Office of the Solicitor 

United States Department of Labor 

3247 Federal Building 

300 N. Los Angeles Street 

Los Angeles, California 90012 

Stephan G. Saleson, Esq. (Certified Mail) 

Gresham, Varner, Savage, Nolan & Tilden 

398 West Fourth Street 

San Bernardino, California 92401 

/blc 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 15, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MICH COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 83-4 

A.C. No. 13-01855-03501 

No. 6 Mine 

DENIAL OF MOTION TO DISMISS 

ORDER TO SUBMIT INFORMATION 

In accordance with what apparently now is becoming 

standard practice the Solicitor has filed a motion to dismiss 

the petition for assessment of a civil penalty for the one 

violation involved in this matter predicated solely upon 

section 100.4 of the regulations of the Mine Safety and 

Health Administration, 30 C.F.R. § 100.4. According to the 

Solicitor this regulation provides for the assessment of a 

$20 single penalty for a violation which is not reasonably 

likely to result in reasonably serious injury or illness. 

The Solicitor has orally advised that his records disclose 

no evidence on gravity or negligence. The citation was 

issued for a failure to submit a valid respirable dust 

sample or giving a valid reason for not sampling the designated work position for the bimonthly period June-July 

1982. 

I am unable to grant the Solicitor's motion on the 

basis of the present record. The Act makes very clear that 

penalty proceedings before the Commission are de novo. The 

Commission itself recently recognized that it is not bound 

by penalty assessment regulations adopted by the Secretary 

but rather that in a proceeding before the Commission the 

amount of the penalty to be assessed is a de novo determination based upon the six statutory criteria specified in 

section llO(i) of the Act and the information relevant 

thereto developed in the course of the adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC 287 (March 

1983). Indeed, if this were not so, the Commission would be 

nothing but a rubber stamp for the Secretary. This case 

1 '' f' . J -1.. 1 •.- 0 ,·__. 
demonstrates the point. Not only would granting the motion 

to dismiss make the Commission a rubber stamp for MSHA but 

it would allow the Solicitor to be one too because the 

Solicitor has freely admitted that he does not have any 

information regarding negligence and gravity. I cannot 

determine that a nominal penalty of $20 is appropriate 

when I am given no information regarding negligence and 

gravity or any of the other statutory criteria. 

The fact that MSHA may have determined that this violation 

is not "significant and substantial" as that term presently 

is defined by the Commission, is not determinative or even 

relevant in these proceedings. I agree with Administrative 

Law Judge Broderick that whether a cited violation is checked 

as significant and substantial is per se irrelevant to the 

determination of the appropriate penalty to be assessed. 

United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983), 

PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for dismissal be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalty is justified and 

dismissal warranted. Otherwise, this case will be assigned 

and set down for hearing on the merits. 

Law Judge 

Distribution: 

Robert S. Bass, Esq., Office of the Solicitor, u. S. Department 

of Labor, Room 2106, 911 Walnut Street, Kansas City, MO 

64106 (Certified Mail) 

Mr. Dale Mich, Mich Coal Company, P. 0. Box 16, Oskaloosa, 

IA 52577 (Certified Mail) 

/ln 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 15, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (.MSHA) , 

Petitioner 

v. 

ARROYO MINING COMPANY, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 83-20 

A.C. No. 29-01820-03505 

Arroyo Mine No. 1 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

In accordance with what apparently now is becoming 

standard practice, the Solicitor has filed a motion for 

settlement in the amount of $20 for the one violation 

involved in this matter. The motion is predicated solely 

upon section 100.4 of the regulations of the Mine Safety and 

Health Administration, 30 C.F.R. § 100.4 which provides for 

the assessment of a $20 penalty for a violation which is not 

reasonably likely to result in a reasonably serious injury 

or illness. The citation was issued for a failure to submit 

the required respirable dust samples. 

I am unable to grant the Solicitor's motion on the 

basis of the present record. The Solicitor has furnished 

no information. The citation itself contains boxes which 

were checked by the inspector indicating the feared event 

was reasonably likely and that negligence was moderate. 

I cannot approve a settlement based upon checks in boxes 

but even if I could the checks in this case would contraindicate a $20 penalty. 

Even more importantly, the Act makes very clear that 

penalty proceedings before the Commission are de novo. The 

Commission itself recently recognized that it is not bound 

by penalty assessment regulations adopted by the Secretary 

but rather that in a proceeding before the Commission the 

amount of the penalty to be assessed is a de novo determination based upon the six statutory criteria specified in 

section llO(i) of the Act and the information relevant 

thereto developed in the course of the adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC 287 (March 

1983). Indeed, if this were not so, the Commission would be 

nothing but a rubber stamp for the Secretary. 

"f I' I\. ' ·J _._. ·, ...... , 
The fact that MSHA may have determined that this 

violation is not "significant and substantial" as that term 

presently is defined by the Commission, is not determinative 

or even relevant in these proceedings. I agree with 

Administrative Law Judge Broderick that whether a cited 

violation is checked as significant and substantial is 

per se irrelevant to the determination of the appropriate 

penalty to be assessed. United States Steel Mining Co., 

Inc., 5 FMSHRC 934 (May 1983), PDR granted- June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalty is justified and 

settlement warranted. Otherwise, this case will be assigned 

and set down for hearing on the merits. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Jack F. Ostrander, Esq., Office of the Solicitor, u. S. 

Department of Labor, 555 Griffin Square Building, Dallas, TX 

75202 (Certified Mail) 

Mr. Jack A. Lawrence, Arroyo Mining Company, Inc., Star 

Route, Box 16B, Bernalillo, NM 87004 (Certified Mail) 

/ln 1 () (' ) :-OU 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 15, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MISHBUCHA ENTERPRISES, LTD. 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 83-80 

A.C. No. 36-04702-03501 

Skidmore Slope 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

In accordance with what apparently now is becoming 

standard practice, the Solicitor has filed a motion for 

settlement in the amount of $40, $20 apiece for the two 

violations involved in this matter. This motion is predicated solely upon section 100.4 of the regulations of the 

Mine Safety and Health Administration, 30 C.F.R. § 100.4 

which provides for the assessment of a $20 single penalty 

for a violation MSHA believes is not reasonably likely to 

result in a reasonably serious injury or illness. The 

violations involve a failure to take a required valid dust 

sample. 

I am unable to approve the motion for settlement on the 

basis of the present record. In my opinion $20 is a nominal 

penalty which indicates a lack of gravity. I note that on 

the citation form the inspector checked the box indicating 

that the occurrence of the event against which the mandatory 

standard is directed was unlikely. However, I am unwilling 

to accept a check in a box on a form without knowing any of 

the reasons for the inspector's conclusion. Moreover, I 

have been told nothing about negligence or any of the other 

statutory factors which would enable me to make an informed 

judgement as to proper penalty amounts. 

The MSHA regulation in question is not binding upon the 

Commission. Indeed, it is not even relevant. The Act makes 

very clear that penalty proceedings before the Commission 

are de novo. The Commission itself recently recognized that 

it isnot bound by penalty assessment regulations adopted by 

the Secretary but rather that in a proceeding before the 

1 ,-~ f > 

.L· . ..._.,l.1 
Commission the amount of the penalty to be assessed is a 

de novo determination based upon the six statutory criteria 

specified in section llO(i) of the Act and the information 

relevant thereto developed in the course of the adjudicative 

proceeding. Sellersburg Stone Company, 5 FMSHRC 287 (March 

1983). Indeed, if this were not so, the Commission would be 

nothing but a rubber stamp for the Secretary. 

The fact that MSHA may have determined that these 

violations are not "significant and substantial" as that 

term presently is defined by the Commission, is not determinative or even relevant in these proceedings. I agree 

with Administrative Law Judge Broderick that whether a cited 

violation is checked as significant and substantial is per se 

irrelevant to the determination of the appropriate penalty 

to be assessed. United States Steel Mining Co., Inc., 

5 FMSHRC 934 (May 1983), PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalties are justified 

and settlement warranted. Otherwise, this case will be 

assigned and set down for hearing on the merits. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Thomas A. Brown, Esq., Office of the Solicitor, U. S. 

Department of Labor, Rm. 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Mishbucha Enterprises, LTD, Mr. Roy Harner, President, 

Spring Glen, PA 17978 

/ln 

1(.\fl J 

:wU ( 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 15, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

AD~INISTRATION (MSHA), 

Petitioner 

v. 

MACASPHALT, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 83-26-M 

A.C. No. 08-00826-05501 

Newburn Pit 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFOH.MATION 

In accordance with what apparently now is becoming 

standard practice, the Solicitor has filed a motion for 

settlement in the amount of $60, $20 each, for the three 

violations involved in this matter. 

The Solicitor does not discuss any of the violations. 

He only attaches the proposed assessment sheet and the 

citations. He states that the inspector's evaluation is 

attached but it is not. 

In my opinion $20 is a nominal penalty which indicates 

a lack of gravity. The first violation was issued for an 

inoperative automatic reverse signal alarm on a front end 

loader. The second violation was issued because brakes on 

the front end loader needed adjustment or repair. The third 

viol~tion was issued for a missing section of hand railing 

on the walkway on the first floor of the plant in front of 

the roll screen. On the face of these violations I would 

have no basis to conclude they are nonserious. Moreover, 

I have been told nothing by the Solicitor about the rest 

of the six statutory criteria. 

The assessment sheet indicates that the $20 penalties 

were issued in accordance with the so-called "single penalty 

assessment" under section 100.4 of the regulations of the 

Mine Safety and Health Administration, 30 C.F.R. § 100.4 

which provides for the assessment of a $20 single penalty 

for a violation MSHA believes is not reasonably likely to 

result in a reasonably serious injury or illness. This 

regulation is, however, not binding upon the Commission or 

1 I ' I> •. l 

..L .. 0U 
even relevant in these proceedings. The fact the operator 

has paid the original assessed amounts cannot preclude the 

Commission from acting in accordance with the governing 

statute. 

The Act makes very clear that penalty proceedings 

before the Commission are de novo. The Commission itself --- recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in 

a proceeding before the Commission the amount of the penalty 

to be assessed is a de novo determination based upon the six 

statutory criteria specified in section llO(i) of the Act 

and the information relevant thereto developed in the course 

of the adjudicative proceeding. Sellersburg Stone Company, 

5 FMSHRC 287 (March 1983). Indeed, if this were not so, the 

Commission would be nothing but a rubber stamp for the 

Secretary. 

The fact that MSHA may have determined that these 

violations are not "significant and substantial" as that 

term presently is defined by the Commission, is not determinative or even relevant in these proceedings. I agree 

with Administrative Law Judge Broderick that whether a cited 

violation is checked as significant and substantial is 

per se irrelevant to the determination of the appropriate 

penalty to be assessed. United States Steel Mining Co., 

Inc., 5 FMSHRC 934 (May 1983), PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalties are justified 

and settlement warranted. Otherwise, this case will be 

assigned and set down for hearing on the merits. 

Paul Merlin 

Chief Administrative Law Judge 
Distribution: 

James L. Stine, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1371 Peachtree Street, N.E., Atlanta, GA 30367 

(Certified Mail) 

Mr. Raymond H. Garriott, Safety Director, Macasphalt, Inc., 

P. 0. Box 2579, Myrtle Street & SCL Railroad, Sarasota, FL 

33578 (Certified Mail) 

/ln 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 15, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

C. J. LANGENFELDER & SON, 

INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. VA 83-7 

A.C. No. 44-0404856-03501-I37 

Buchanan No. 1 Mine 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

In accordance with what apparently now is becoming 

standard practice, the Solicitor has filed a motion for 

settlement in the amount of $240 for the 12 violations 

involved in this matter. This motion is predicated solely 

upon section 100.4 of the regulations of the Mine Safety and 

Health Administration, 30 C.F.R. § 100.4 which provides for 

the assessment of a $20 single penalty for a violation MSHA 

believes is not reasonably likely to result in a reasonably 

serious injury or illness. I have reviewed the 12 violations. 

They were issued for a variety of conditions including 

inoperative automatic warning device, lack of a suitable 

fire extinquisher and inoperative lights. 

I am unable to approve the motion for settlement on the 

basis of the present record. In my opinion $20 is a nominal 

penalty which indicates a lack of gravity. I have been told 

nothing about gravity, negligence or any of the other 

statutory factors which would enable me to make an informed 

judgment as to proper penalty amounts. The fact the operator 

has paid the $240 cannot preclude the Commission from acting 

in accordance with the governing statute. 

Section 100.4 is not binding upon this Commission. 

Indeed, it is not even relevant. The Act makes very clear 

that penalty proceedings before the Commission are de novo. 

The Commission itself recently recognized that it iS-n~ 

bound by penalty assessment regulations adopted by the 

Secretary but rather that in a proceeding before the Commission the amount of the penalty to be assessed is a de novo 

1:·271 
determination based upon the six statutory criteria specified 

in section llO(i) of the Act and the information relevant 

thereto developed in the course of the adjudicative proceeding. 

Sellersburg Stone Company, 5 FMSHRC 287 (March 1983). 

Indeed, if this were not so, the Commission would be nothing 

but a rubber stamp for the Secretary. 

The fact that MSHA may have determined that these 

violations are not "significant and substantial" as that 

term presently is defined by the Commission, is not determinative or even relevant in these proceedings. I agree 

with Administrative Law Judge Broderick that whether a cited 

violation is checked as significant and substantial is 

per se irrelevant to the determination of the appropriate 

penalty to be assessed. United States Steel Mining Co., 

Inc., 5 FMSHRC 934 (May 1983), PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for 

me to determine whether the proposed penalties are justified 

and settlement warranted. Otherwise, this case will be 

assigned and set down for hearing on the merits. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Agnes M. Johnson-Wilson, Esq., Office of the Solicitor, 

u. S. Department of Labor, Rm. 14480-Gateway Building, 

3535 Market Street, Philadelphia, PA 19104 (Certified Mail) 

C. J. Langenfelder & Son, Inc., Mr. Harry M. Elliott, 

Treasurer, 8427 Pulaski Highway, Baltimore, MD 21237 

(Certified Mail) 

/ln 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 15, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

HUMPHREYS ENTERPRISES, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. VA 83-16 

A.C. No. 44-05217-03501 

No. 1 Strip 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion for settlement for the 

eight violations involved in this matter. With respect to 

seven violations the Solicitor seeks settlements in the 

amount of $20 apiece. For the eighth violation the Solicitor 

seeks a settlement in the amount of $147. 

First, I will discuss the seven violations. The Solicitor 

does not discuss the circumstances of any of these violations. 

He merely states that they did not constitute an imminent 

danger and are not significant and substantial, paraphrasing 

the Commission's present interpretation of the term "significant 

and substantial." In accordance with what apparently now is 

becoming standard practice, the Solicitor relies upon section 

100.4 of the regulations of the Mine Safety ~nd Health 

Administration, 30 C.F.R. § 100.4 which provides for the 

assessment of a $20 single penalty for a violation MSHA 

believes is not reasonably likely to result in a reasonably 

serious injury or illness. 

I am unable to approve the proposed settlements for 

these seven violations on the basis of the present record. 

In my opinion $20 is a nominal penalty which indicates a 

lack of gravity. I have been told nothing about gravity, 

negligence or any of the other six statutory factors which 

would enable me to make an informed judgement as to proper 

penalty amounts. 
The MSHA regulation in question is not binding upon the 

Commission. Indeed, it is not even relevant. The Act makes 

very clear that penalty proceedings before the Commission 

are de novo. The Commission itself recently recognized that 

it iS-not bound by penalty assessment regulations adopted by 

the Secretary but rather that in a proceeding before the 

Commission the amount of the penalty to be assessed is a 

de novo determination based upon the six statutory criteria 

specified in section llO(i) of the Act and the information 

relevant thereto developed in the course of the adjudicative 

proceeding. Sellersburg Stone Company, 5 FMSHRC 287 (March 

1983). Indeed, if this were not so, the Commission would be 

nothing but a rubber stamp for the Secretary. 

The fact that MSHA may have determined that these 

violations are not "significant and substantial" as that 

term presently is defined by the Commission, is not determinative or even relevant in these proceedings. I agree 

with Administrative Law Judge Broderick that whether a cited 

violation is checked as significant and substantial is 

per se irrelevant to the determination of the appropriate 

penalty to be assessed. United States Steel Mining Co., 

Inc., 5 FMSHRC 934 (May 1983), PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

Finally, I am unable to approve the proposed $147 

settlement for the eighth violation which was issued for 

ineffective brakes on a 35-ton truck. The Solicitor states 

that gravity and negligence were high but that the operator 

demonstrated good faith abatement and has a relatively good 

history of complying with the Act. I have been told nothing 

about the operator's size and its ability to continue in 

business. When the Solicitor advises that gravity and 

negligence were high a penalty of $147 seems relatively low 

unless other factors mitigate against imposition of a more 

severe penalty. The Solicitor should inform me as to all 

statutory criteria. 
ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalties are justified 

and settlement warranted. Otherwise, this case will be 

assigned and set down for hearing on the merits. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Craig W. Hukill, Esq., Office of the Solicitor, U. S. 

Department of Labor, 4015 Wilson Blvd., Rm. 1237A, Arlington, 

VA 22203 (Certified Mail) 

Mr. Mike Thomas, Humphreys Enterprises, Inc., P. 0. Box 668, 

Norton, VA 24273 (Certified Mail) 

/ln 

nr-~;. 

,..., 'u 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 15, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

VIKING MINING CORPORATION, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. VA 83-17 

A.C. No. 44-03604-03504 

Mine No. 1 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

In accordance with what apparently now is becoming 

standard practice, the Solicitor has filed a motion for 

settlement in the amount of $20 for the one violation 

involved in this matter. The motion is predicated solely 

upon section 100.4 of the regulations of the Mine Safety and 

Health Administration, 30 C.F.R. § 100.4 which provides for 

the assessment of a $20 single penalty for a violation MSHA 

believes is not reasonably likely to result in a reasonably 

serious injury or illness. This violation was issued because 

the operator did not take one valid respirable dust sample 

from the designated area for the bimonthly sampling period 

of October-November 1982. 

I am unable to approve the motion fo{ settlement on the 

basis of the present record. In my opinion $20 is a nominal 

penalty which indicates a lack of gravity. I have been told 

nothing about gravity, negligence or any other factors which 

would enable me to make an informed judgement as to proper 

penalty amounts. 

The MSHA regulation in question is not binding upon the 

Commission. Indeed, it is not even relevant. Moreover, the 

fact that the operator has tendered payment cannot preclude 

the Commission from acting in accordance with the governing 

statute. 

The Act makes very clear that penalty proceedings 

before the Commission are de novo. The Commission itself --- recently recognized that it is not bound by penalty assessment 

regulations adopted by the Secretary but rather that in a 

1 , ..... ..._ ,,.., ,·1 

..i. ' - I tJ 
proceeding before the Commission the amount of the penalty 

to be assessed is a de novo determination based upon the six 

statutory criteria specified in section llO(i) of the Act 

and the information relevant thereto developed in the course 

of the adjudicative proceeding. Sellersburg Stone Company, 

5 FMSHRC 287 (March 1983). Indeed, if this were not so, the 

Commission would be nothing but a rubber stamp for the 

Secretary. 

The fact that MSHA may have determined that this 

violation is not "significant and substantial" as that term 

presently is defined by the Commission, is not determinative 

or even relevant in these proceedings. I agree with Administrative Law Judge Broderick that whether a cited violation 

is checked as significant and substantial is per se irrelevant 

to the determination of the appropriate penalty t~be assessed. 

United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 

1983), PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfull and discharge. This can only be 

done on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalty is justified and 

settlement warranted. Otherwise, this case will be assigned 

and set down for hearing on the merits. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Leo McGinn, Esq., Office of the Solicitor, U. S. Department 

of Labor, 4015 Wilson Blvd., Rm. 1237A, Arlington, VA 22203 

(Certified Mail) 

Viking Mining Corporation, Leon or David Stevenson, Drawer 

II, Grundy, VA 24614 (Certified Mail) 

/ln 

l nt-,', 

.. _ ' { 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 15, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

YAKIMA CEMENT PRODUCTS 

COMP ANY I INC. I 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 83-37-M 

A.C. No. 45-00727-05501 

East Salah Pit & Plant 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion to approve a settlement 

for the five violations involved in this matter. The proposed settlement in the amount of $110 is the originally 

assessed amount. !/ 

The Solicitor has given me no basis whatsoever to 

approve the proposed settlement. None of the violations are 

explained or analyzed. The Solicitor merely states that the 

operator has paid the originally assessed amount. Four of 

the violations were assessed at $20 apiece and one violation 

was assessed at $30. In my opinion these amounts denote a 

lack of gravity. The citations are for lack of guarding on 

a belt drive, missing or misplaced covers on various equipment 

which might create a shock hazard and an unintentional 

ground fault. I do not know whether these conditions are 

serious or not but I certainly could not find lack of gravity 

on the face of the subject violations. On two of the 

citations the inspector has checked boxes relating to gravity 

and negligence. I do not believe I can approve settlements 

based upon checking boxes when no reasons are given. Also 

here in one case negligence was checked as moderate and in 

the other occurrence of the feared event was thought likely. 

It appears from the assessment sheet that the four 

violations which are assessed at $20 each were done so as 

the result of the so-called "single penalty assessment" 

which is set forth in section 100.4 of the regulations of 

the-Mine Safety and Health Administration, 30 C.F.R. 

§ 100.4 which provides for the assessment of a $20 single 

!/ The Solicitor's motion mistakenly sets forth the amount 

as $100. This is obviously wrong since both the assessment 

sheet and the memorandum to the Solicitor from MSHA set forth 

the amount as $110. 

1 """'~'-.i 

..l..~10 
penalty for a violation MSHA believes is not reasonably 

likely to result in a reasonably serious injury or illness. 

This regulation is not binding upon the Commission and is 

not a basis upon which I could approve a settlement. 

The Act makes very clear that penalty proceedings 

before the Commission are de novo. The Commission itself --- recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in 

a proceeding before the Commission the amount of the penalty 

to be assessed is a de novo determination based upon the six 

statutory criteria specified in section llO(i) of the Act 

and the information relevant thereto developed in the course 

of the adjudicative proceeding. Sellersburg Stone Company, 

5 FMSHRC 287 (March 1983). Indeed, if this were not so, the 

Commission would be nothing but a rubber stamp for the 

Secretary. 

The fact that MSHA may have determined that these 

violations are not "significant and substantial" as that 

term presently is defined by the Commission, is not determinative or even relevant in these proceedings. I agree 

with Administrative Law Judge Broderick that whether a cited 

violation is checked as significant and substantial is per se 

irrelevant to the determination of the appropriate penalty 

to be assessed. United States Steel Mining Co., Inc., 

5 FMSHRC 934 (May 1983), PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalties are justified 

and settlement warranted. Otherwise, this case will be 

assigned and set down for hearing on the merits. 

c__--~ ----\~~ Paul Merlin 

Chief Administrative Law Judge 
Distribution: 

Ernest Scott, Jr., Esq., Office of the Solicitor, U. S. 

Department of Labor, 8003 Federal Office Building, Seattle, 

WA 98174 (Certified Mail) 

Yakima Cement Products Company, Inc., 1202 South 1st Street, 

Box 436, Yakima, WA 98901 (Certified Mail) 

/ln 

1r·c1) 

_:._ • -. ~ j \ ' 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 15, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

KAISER SAND & GRAVEL CO., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 83-64-M 

A.C. No. 04-01959-05501 

Sisquic Pit and Mill 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion for settlement for the 

one violation involved in this matter. She advises that the 

operator has paid the originally assessed amount of $20 and 

has withdrawn its notice of contest. 

Since the Commission's jurisdiction has attached, the 

operator's proposed withdrawal of its notice of contest is 

not determinative. Under section 110 of the Act the Commission has the responsibility to insure that all settlements 

comply with the requirements of the law including the six 

statutory criteria. In her motion the Solicitor sets forth 

information regarding history, size and ability to continue 

in business. With respect to abatement, negligence and 

gravity the Solicitor directs my attention to the "inspector's 

statement, Exhibit 1 attached hereto, which reflects the 

testimony of the inspector if he were to testify." There 

is, however, no inspector's statement attached to the motion. 

Such carelessness is unfortunately all too typical of these 

settlement motions. The Commission and its Judges should not 

have to waste time repeatedly attempting to obtain information 

necessary to dispose of settlement motions. 

Moreover, on the face of the matter, I cannot approve 

the proposed settlement. In my opinion, $20 is a nominal 

penalty which denotes a lack of gravity. The dry vegetation 

cited by the inspector appears to fall squarely within the 

mandatory standard. The proximity of this vegetation to the 

electrical substation does not necessarily mandate a finding 

that the condition was serious but if there was no gravity 

there must be an explanation why. 
ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalty is justified and 

settlement warranted. Otherwise, this case will be assigned 

and set down for hearing on the merits. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Theresa Kalinski, Esq., Office of the Solicitor, U. S. 

Department of Labor, Room 3247 Federal Building, 300 North 

Los Angeles Street, Los Angeles, CA 90012 (Certified Mail) 

Mr. Clair E. Hay, Kaiser Sand & Gravel Company, P. 0. Box 

580, Pleasanton, CA 94566 (Certified Mail) 

/ln 1 (' ~) ,\ ...LI~ l) 1-v 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 15, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

RIDGE LAND COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 83-171 

A.C. No. 46-05963-03503 

Ridge Land No. 22 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

In accordance with what apparently now is becoming 

standard practice, the Solicitor has filed a motion for 

settlement in the amount of $60 for the three violations 

involved in this matter. This motion is predicated solely 

upon sectidn 100.4 of the regulations of the Mine Safety 

and Health Administration, 30 C.F.R. § 100.4 which provides 

for the assessment of a $20 single penalty for a violation 

which MSHA believes is not reasonably likely to result in 

a reasonably serious injury or illness. The first violation 

was issued for failure to properly install a fire sensor 

system. The second violation was issued for failure to 

have proper lighting on a continuous mining machine and 

failure to properly illuminate the working place. The 

third violation was issued for failure to have proper 

lighting on the roof bolting machine and failure to 

properly illuminate the working place. 

I am unable to approve the motion for settlement on 

the basis of the present record. In my opinion $20 is a 

nominal penalty which indicates a lack of gravity. I have 

been told nothing about gravity, negligence or any other 

factors which would enable me to make an informed judgment 

as to proper penalty amounts. 

The Act makes very clear that penalty proceedings 

before the Commission are de novo. The Commission itself 

recently recognized that i~is not bound by penalty assessment regulations adopted by the Secretary but rather that 

in a proceeding before the Commission the amount of the 

penalty to be assessed is a de novo determination based 

upon the six statutory criteria specified in section llO(i) 
of the Act and the information relevant thereto developed 

in the course of the adjudicative proceeding. Sellersburg 

Stone Company, 5 FMSHRC 287 (March 1983). Indeed, if this 

were not so, the Commission would be nothing but a rubber 

stamp for the Secretary. 

The fact that MSHA may have determined that these 

violations are not "significant and substantial" as that 

term presently is defined by the Commission, is not determinative or even relevant in these proceedings. I agree 

with Administrative Law Judge Broderick that whether a 

cited violation is checked as significant and substantial 

is per se irrelevant to the determination of the appropriate 

penalty to be assessed. United States Steel Mining Co., 

Inc., 5 FMSHRC 934 (May 1983), PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only 

be done on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for 

me to determine whether the proposed penalties are justified 

and settlement warranted. Otherwise, this case will be 

assigned and set down for hearing on the merits. 

: 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

David A. Pennington, Esq., Office of the Solicitor, u. s. 

Department of Labor, Rm. 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Mr. Edward A. Asbury, President, Ridge Land Company, Inc., 

Drawer 240, Anawalt, WV 24808 (Certified Mail) 

/ln 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

R & S COAL COMPANY, INC., 

Respondent 

July 18, 1983 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 82-105 

A. C. No. 03-01384-03019 

J & B No. 1 Mine 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion to approve settlements 

for the five violations involved in this matter. The proposed 

settlements are for $20 apiece. 

Based upon the present record, I am unable to approve 

the proposed settlements. In my opinion, $20 is a nominal 

penalty which indicates a lack of gravity. ~wo citations 

were issued for failure to secure compressed gas cylinders. 

The third violation was for the lack of a portable fire 

extinguisher on a diesel storage tank. The fourth citation 

was issued for the absence of an automatic warning device on 

a front end loader. The fifth citation was issued because a 

gasoline container was not a safety can. On the face of 

these citations, therefore, it appears that there may well 

have been some degree of gravity present in all of them. 

The proposed penalties, therefore, do not appear appropriate 

or in the public interest. 

The Solicitor further states that the violations were 

not considered significant and substantial since they were 

not reasonably likely to result in a reasonably serious injury or illness. This motion does not mention section 100.4 

of the regulations of the Mine Safety and Health Administration, 30 C.F.R. 100.4, which provides for the assessment of 

a $20 single penalty for a violation which MSHA believes is 

not reasonably likely to result in a reasonably serious injury or illness. The rationale employed in this motion is, 

however, just like that underlying the regulation since it 

relies upon the fact that the violation was not significant 

and substantial. 

The MSHA regulation and the rationale expressing it are 

not binding upon this Commission. Indeed, they are not even 

relevant. The Act makes very clear that penalty proceedings 

before the Commission are de novo. The Commission itself 
recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in 

a proceeding before the Commission the amount of the penalty 

to be assessed is a de novo determination based upon the six 

statutory criteria specified in section llO(i) of the Act 

and the information relevant thereto developed in the course 

of the adjudicative proceeding. Sellersburg Stone Company, 

5 FMSHRC 287 (March 1983). Indeed, if this were not so, the 

Commission would be nothing but a rubber stamp for the 

Secretary. 

The fact that MSHA may have determined that these violations are not ''significant and substantial" as that term presently is defined by the Commission, is not determinative or 

even relevant in these proceedings. I agree with Administrative Law Judge Broderick that whether a cited violation is 

checked as significant and substantial is per se irrelevant 

to the determination of the appropriate penaltY-to be assessed. 

United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983), 

PDR granted June 22, 1983. Once this Commission's jurisdiction attaches we h~ve our own statutory responsibilities to 

fulfill and discharge. This can only be done on the basis 

of an adequate record. 

The Solicitor states with respect to all the violations 

that exposure was minimal to none. I do not know what this 

means and even if I did, one such bare conclusion most certainly would not satisfy the requirement that I assess a 

penalty amount in accordance with the six statutory criteria. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlements be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalties are justified 

and settlements warranted. Otherwise, this case will be 

assigned and set down for hearing on the merits. 

Paul: Merlin 

Chief Administrative Law Judge 

-1 I\ p t 

.i. ,_ <J \) 
Distribution: 

Jack F. Ostrander, Esq., Office of the Solicitor, U. S. 

Department of Labor, 555 Griffin Square Bldg., Dallas, TX 

75202 (Certified Mail) 

Rick Brown, R & S Coal Company, Inc., P. o. Box 468, Lamar, 

AR 72846 (Certified Mail) 

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1')')'·· 

r.;, u ( 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 18, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

R & S COAL COMPANY, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 82-106 

A. C. No. 03-01384-03018 

J & B No. 1 Mine 

PARTIAL APPROVAL/DISAPPROVAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion to approve settlements 

with respect to the four citations involved in this matter. 

The proposed settlements are for $20 apiece. 

In my opinion, $20 is a nominal penalty which indicates 

a lack of gravity. Citations Nos. 1025765 and 1024911 are 

record-keeping violations. They are, therefore, on their 

face not serious, and I approve the proposed settlements of 

$20 each for these violations. However, I will not issue an 

order for the operator to pay these violations until additional information is submitted with respect to the remaining 

two violations. 

Citation No. 1025764 involves an inadequate braking 

system on the front end loader. Citation No. 1025767 was 

issued because the grader did not have an audible warning 

device. The Solicitor represents that the negligence of the 

respondent was low and that there were no employees on foot 

in the area, thereby reducing the probability of occurrence. 

I accept these representations. Nevertheless, it appears 

that some degree of gravity may have been present and that 

therefore a $20 penalty for each of these violations would 

be inappropriate. 

In addition, the Solicitor states that the violations 

were not considered significant and substantial. 

This motion does not specifically mention section 100.4 

of the regulations of the Mine Safety and Health Administration, 

30 C.F.R. § 100.4, which provides for the assessment of a 

$20 single penalty for a violation which MSHA believes is 

not reasonably likely to result in a reasonably serious injury or illness. The rationale advanced by the Solicitor is, 

however, the same as appears in the regulation since the 

Solicitor relies upon the fact that the violations were not 

significant and substantial. The regulation and the rationale 

expressing it are not binding upon this Commission. Indeed, 
they are not even relevant. The Act makes very clear that 

penalty proceedings before the Commission are de ~· The 

Commission itself recently recognized that it is not bound 

by penalty assessment regulations adopted by the Secretary 

but rather that in a proceeding before the Commission the 

amount of the penalty to be assessed is a de novo determination based upon the six statutory criteria-Specified in 

section llO(i) of the Act and the information relevant 

thereto developed in the course of the adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC 287 (March 

1983). Indeed, if this were not so, the Commission would be 

nothing but a rubber stamp for the Secretary. 

The fact that MSHA may have determined that this violation is not "significant and substantial" as that term presently is defined by the Commission, is not determinative or 

even relevant in these proceedings. I agree with Administrative Law Judge Broderick that whether a cited violation is 

checked as significant and substantial is per se irrelevant 

to the determination of the appropriate penaltY-to be assessed. 

United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 

1983), PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the 

proposed settlements for Citations No. 1025765 and No. 

1024911 are hereby Approved. 

It is further Ordered that the proposed settlements for 

Citations No. 1025764 and No. 1025767 are hereby Denied. It 

is further Ordered that within 30 days from the date of this 

order the Solicitor file information adequate for me to 

determine whether the proposed penalties are justified and 

settlements warranted for these two violatior-s. Otherwise, 

this case will be assigned and set down for hearing on the 

merits. 

~J_ Paul Merlin 

Chief Administrative Law Judge 
Distribution: 

Jack F. Ostrander, Esq., Office of the Solicitor, U.S. 

Department of Labor, 555 Griffin Square Bldg., Dallas, TX 

75202 (Certified Mail) 

Rick Brown, R & S Coal Company, Inc., P.O. Box 468, Lamar, 

AR 72846 (Certified Mail) 

/yh 

1,,...,. ., ·1 ,.~ J (. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 18, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

SAN JUAN COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 83-10 

A. C. No. 29-01153-03502 

San Juan Mine - Prep Plant 

DENIAL OF SETTLEMENT 

DENIAL OF DISMISSAL 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion to dismiss this matter 

on the grounds that the operator has paid the proposed penalty 

in this case thereby making further action unwarranted. The 

fact that the operator has made payment is not dispositive of 

this matter and cannot preclude the Commission from acting in 

accordance with the governing statute. 

Moreover, an examination of the file in this case indicates that more is involved than payment of the proposed penalty 

by the operator. There is one violation involved in this case 

and the proposed penalty is $20. The assessment sheet indicates that this was a ''single penalty assessment" which was made 

pursuant to section 100.4 of the regulations of the Mine Safety 

and Health Administration, 30 C.F.R. § 100.4, which provides 

for the assessment of a $20 single penalty for a violation which 

MSHA believes is not reasonably likely to result in a reasonably 

serious injury or illness. The subject citation was issued because the operator did not take a valid respirable dust sample 

during the August-September 1982 bi-monthly period from a designated work position as shown on an attached computer printout. 

In my opinion, $20 is a nominal penalty which indicates, 

among other things, a lack of gravity. I cannot say on the 

face of this violation alone that it is nonserious. Moreover, 

I have been told nothing about any of the other statutory criteria which would enable me to make an informed judgment as to 

a proper penalty assessment for this violation. 

The Act makes very clear that penalty proceedings before 

the Commission are de novo. The Commission itself recently 

recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in a proceeding before the Commission the amount of the penalty to be 

10Q' 

{.., \J l 
assessed is a de novo determination based upon the six statutory criteria specified in section llO(i) of the Act and the 

information relevant thereto developed in the course of the 

adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC 

287 (March 1983). Indeed, if this were not so, the Commission 

would be nothing but a rubber stamp for the Secretary. 

The fact that MSHA may have determined that this violation is not "significant and substantial" as that term 

presently is defined by the Commission, is not determinative 

or even relevant in these proceedings. I agree with Administrative Law Judge Broderick that whether a cited violation 

is checked as significant and substantial is per se irrelevant 

to the determination of the appropriate penalty tO--be assessed. 

United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983), 

PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. The Solicitor cannot 

finesse the matter by purporting to ignore the MSHA regulation 

in merely asking for dismissal because the operator has paid 

the minimal penalty of $20. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for dismissal be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine the proper amount of a penalty. Otherwise, this 

case will be assigned and set down for hearing on the merits. 

-=-?~\\~ Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Jack F. Ostrander, Esq., Office of the Solicitor, U. S. Department of Labor, 555 Griffin Sq., Suite 501, Dallas, TX 75202 

(Certified Mail) 

Bert T. Wisner, Safety Supervisor, San Juan Coal Company, P. O. 

Box 561, Waterflow, NM 87421 (Certified Mail) 

1,, '~·) 

,-,.Jt..., 

yh 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 18, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

ABRAXIS COAL COMPANY, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 83-44 

A. C. No. 15-12403-03504 

No. 2 Mine 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has submitted a motion for set~lement with 

respect to the five violations involved in this matter. The 

Solicitor's motion cannot be granted on the basis of the 

present record. 

Citations No. 2053271 and 2053272 each allege a violation 

of 30 C.F.R. § 75.1719-l(d). These concern the failure of the 

operator to provide illumination in addition to the illumination provided by the cap lamp of the operator, on a shuttle 

car. The Solicitor states in his motion that the Office of 

Assessments correctly evaluated the six criteria when it 

assessed a penalty of $130 for each of these two violations. 

However, the assessment sheet indicates that the proposed penalty assessment for each of these violations was $91 reduced 

from $130 and the operator's check indicates that it paid $91 

apiece. Accordingly, I cannot approve the proposed settlements 

for these violations because the Solicitor's motion is based 

upon one amount whereas MSHA has accepted payment of a lesser 

figure. 

The proposed settlements for the remaining three violations are for $20 each. The Solicitor states only that he 

believes that the Assessment Office correctly determined that 

a "single penalty assessment" was appropriate and that the 

inspector did not indicate that the respondent was negligent, 

the gravity contemplated, or the number of persons affected. 

The proposed settlements for these three violations is therefore predicated solely upon section 100.4 of the regulations 

of the Mine Safety and Health Administration, 30 C.F.R. 100.4. 

This regulation provides for the assessment of a $20 single 

penalty for a violation which is not reasonably likely to 

result in a serious injury or illness. However, the regulation in question is not binding upon the Commission. Indeed, 
it is not even relevant. Moreover, the fact that the operator 

has tendered payment cannot preclude the Commission from acting in accordance with the governing statute. In my opinion, 

$20 is a nominal penalty which indicates a lack of gravity. 

As already indicated, the Solicitor has told me nothing about 

gravity, negligence, or any other factors which would enable 

me to make an informed judgment as to proper penalty amounts 

for these three citations. 

The Act makes very clear that penalty proceedings before 

the Commission are de novo. The Commission itself recently 

recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in a proceeding before the Commission the amount of the penalty to be 

assessed is a de novo determination based upon the six statutory criteria specified in section llO(i) of the Act and the 

information relevant thereto developed in the course of the 

adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC 

287 (March 1983). Indeed, if this were not so, the Commission 

would be nothing but a rubber stamp for the Secretary. 

The fact that MSHA may have determined that this violation is not ''significant and substantial" as that term presently is defined by the Commission, is not determinative or 

even relevant in these proceedings. I agree with Administrative Law Judge Broderick that whether a cited violation is 

checked as significant and substantial is per se irrelevant 

to the determination of the appropriate penaltY-to be assessed. 

United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983), 

PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlements be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalties are justified and 

settlements warranted. Otherwise, this case will be assigned 

and set down for hearing on the merits. 

< \ Jn 

r \~ Paul Merlin 

Chief Administrative Law Judge 
Distribution: 

Darryl A. Stewart, Esq., Office of the Solicitor, U. S. 

Department of Labor, 280 U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

Sheridan Booth, Superintendent, Abraxis Coal Co., Inc., 

General Delivery, Inez, KY 41224 (Certified Mail) 

yh 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 18, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MERCER LIME & STONE COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 83-72-M 

A. C. No. 36-03448-05502 

Mercer Lime & Stone Co. Mine 

PARTIAL APPROVAL AND PARTIAL DISAPPROVAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion to approve settlement 

for the two violations involved in this matter. 

The Solicitor submits a proposed settlement in the amount 

of $48 for Citation No. 2007509 which was issued for a violation of 30 C.F.R. 56.9-22. The inspector observed that a berm 

was not provided for the outer bank of the elevated roadway 

around the No. 1 and No. 2 ponds. The Solicitor advises that 

the operator demonstrated good faith efforts to abate the cited 

condition by constructing a berm for the outer bank of the 

elevated roadway around both ponds well within the time specified for abatement. The proposed settlement is not large but 

in view of the Solicitor's advice that the operator is small 

and that it has a very small history of prior violations, I 

will approve the recommended settlement for this item. 

With respect to the second item which was issued for a 

violation of 30 C.F.R. 56.11-1 when the inspector observed that 

a safe means of access was not provided at the dust screws 

under the cyclones, ·the Solicitor recommends a $20 penalty. 

This proposed settlement is predicated solely upon section 

100.4 of the regulations of the Mine Safety and Health Administration, 30 C.F.R. 100.4 which provides for the assessment 

of a $20 single penalty for a violation which is not reasonably 

likely to result in a reasonably serious injury or illness. 

I am unable to approve the proposed $20 settlement. In 

my opinion, $20 is a nominal penalty which indicates a lack 

of gravity. A reading of the citation indicates that gravity 

may well have been present. In any event, I have been told 

nothing about gravity or negligence so as to enable me to 

make an informed judgment with respect to the proper penalty 

amount for this citation. 

"f •' '· I l (. 

_J... •.• 'j \ } 
The MSHA regulation in question is not binding upon the 

Commission. Indeed, it is not even relevant. The Act makes 

very clear that penalty proceedings before the Commission are 

de nova. The Commission itself recently recognized that it 

is not bound by penalty assessment regulations adopted by the 

Secretary but rather that in a proceeding before the Commission 

the amount of the penalty to be assessed is a de nova determination based upon the six statutory criteria-Specified in 

section llO(i) of the Act and the information relevant thereto 

developed in the course of the adjudicative proceeding. 

Sellersburg Stone Company, 5 FMSHRC 287 (March 1983). Indeed, 

if this were not so, the Commission would be nothing but a 

rubber stamp for the Secretary. 

The fact that MSHA may have determined that this violation is not "significant and substantial" as that term presently is defined by the Commission, is not determinative or 

even relevant in these proceedings. I agree with Administrative 

Law Judge Broderick that whether a cited violation is checked 

as significant and substantial is per se irrelevant to the 

determination of the appropriate penalty to be assessed. 

United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983), 

PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement with respect to Citation 

2007509 be approved. I will not issue an order directing the 

operator to pay $48 for this citation until information is 

submitted with respect to the other citation as set forth 

immediately hereafter. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalty in settlement is 

warranted for Citation No. 2007508. If the Solicitor does 

not do so, this case will be assigned and set down for hearing 

on the merits. 

~J_~~ . Paul Merlin 

Chief Administrative Law Judge 

yh 
Distribution: 

Thomas A. Brown, Esq., Office of the Solicitor, U.S. Department 

of Labor, Rm. 14480-Gateway Bldg., 3535 Market St., Philadelphia, 

PA 19104 (Certified Mail) 

James Christy, Foreman, Mercer Lime & Stone Co., P. 0. Box 4, 

Branchton, PA 16021 (Certified Mail) 

1r-,,.,·, 

...L··- ...;O 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 18, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

POWER OPERATING COMPANY, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 83-90 

A. C. No. 36-04999-03501 

Leslie Tipple Mine 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion for a decision and 

order approving settlement in the amount of $20 for the one 

violation involved in this matter. The motion is predicated 

solely upon section 100.4 of the regulations of the Mine 

Safety and Health Administration, 30 C.F.R. § 100.4, which 

provides for the assessment of a $20 single penalty for a 

violation which MSHA believes is not reasonably likely to 

result in a reasonably serious injury or illness. The 

violation was issued because a suitable backguard was not 

provided for the vertical ladder that extended to the feeder 

platform approximately 9 feet from ground level. 

I am unable to approve the motion for settlement on the 

basis of the present record. In my opinion, $20 is a nominal 

penalty which indicates a lack of gravity. I note that the 

inspector has checked Item 21 on the citation form to indicate 

that the occurrence of the event against which the cited 

standard directed was unlikely. I also note that he has 

checked Item 20 to indicate that negligence was low. However, 

I have been told nothing about the circumstances which led 

the inspector to reach these conclusions, nor have I been 

given any information about the other statutory factors 

which would enable me to make an informed judgment as to 

the proper penalty amount. 

The Act makes very clear that penalty proceedings 

before the Commission are de novo. The Commission itself --- recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in 

a proceeding before the Commission the amount of the penalty 

to be assessed is a de novo determination based upon the six 

statutory criteria specified in section llO(i) of the Act 

and the information relevant thereto developed in the course 

of the adjudicative,proceeding. Sellersburg'Stone Company, 

5 FMSHRC 287 (March 1983). Indeed, if this were not so, the 

Commission would be nothing but a rubber stamp for the 

Secretary. 

1 "q d1 

-1...-...u\J 
The fact that MSHA may have determined that this violation is not "signi£icant and substantial" as that term presently is defined by the Commission, is not determinative or 

even relevant in these proceedings. I agree with Administrative Law Judge Broderick that whether a cited violation is 

checked as significant and substantial is per se irrelevant 

to the determination of the appropriate penaltY-to be assessed. 

United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983), 

PDR granted June 22, 1983. 

The MSHA regulation in question is not binding upon the 

Commission. Indeed, it is not even relevant. Moreover, the 

fact that the operator has tendered payment cannot preclude 

the Commission from acting in accordance with the governing 

statute. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalty is justified and 

settlement warranted. Otherwise, this case will be assigned 

and set down for hearing on the merits. 

~~~~ Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

William M. Connor, Esq., Office of the Solicitor, U. S. 

Department of Labor, Rm. 14480-Gateway Bldg., 3535 Market 

St., Philadelphia, PA 19104 (Certified Mail) 

Larry Kanour, Supt., Power Operating Co., Inc., P. 0. Box 684, 

Philipsburg, PA 16866 (Certified Mail) 

i Ir;. " w;_ {.._~,: I. j ' .... :: 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 18, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

D. L. & P. COAL CO., INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. VA 83-29 

A. C. No. 44-05340-03508 

No. 1 Mine 

DENIAL OF MOTION TO WITHDRAW PETITION 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Secretary has moved to withdraw his petition for 

the assessment of civil penalties for the 11 citations 

involved in this matter. The Solicitor states that the 

operator has paid $20 each for the 11 proposed penalties or 

a total of $220. The Solicitor further states that the 

citations did not cause an imminent danger nor did they 

significantly and substantially contribute to a coal mine 

safety or health hazard. He stated that these violations 

were not reasonably likely to result in a reasonably serious 

injury or illness and were abated within the time set by the 

inspector and that in addition the employer demonstrated 

good faith in abating these violations and has a relatively 

good history of complying with the requirements of the Act. 

The 11 violations were issued for a variety of conditions 

including ventilation and dust violations, inadequate temporary splices, lack of guarding, improperly installed fire 

outlets on a water line, permissibility violations, and 

improperly located battery-charging stations. In my opinion, 

$20 is a nominal penalty which indicates a lack of gravity. 

With respect to these 11 violations, I have been told nothing 

about gravity, negligence, or any of the other statutory 

factors sufficient to enable me to make an informed judgment 

as to proper penalty amounts. 

The assessment sheet indicates that the $20 penalties 

in this matter are the so-called "single penalty assessments" 

made pursuant to section 100.4 of the regulations of the Mine 

Safety and Health Administration, 30 C.F.R. § 100.4, which 

provides for the assessment of a $20 single penalty for a 

violation which MSHA believes is not reasonably likely to 

result in a reasonably serious injury or illness. 

1301 
The MSHA regulation in question is not binding upon the 

Commission. Indeed, it is not even relevant. Moreover, the 

fact that the operator has tendered payment cannot preclude 

the Commission from acting in accordance with the governing 

statute. 

The Act makes very clear that penalty proceedings before 

the Commission are de novo. The Commission itself recently 

recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in a proceeding 

before the Commission the amount of the penalty to be assessed 

is a de novo determination based upon the six statutory criteria ---Specified in section llO(i) of the Act and the information 

relevant thereto developed in the course of the adjudicative 

proceeding. Sellersburg Stone Company, 5 FMSHRC 287 (March 

1983). Indeed, if this were not so, the Commission would be 

nothing but a rubber stamp for the Secretary. 

The fact that MSHA may have determined that this violation 

is not "significant and substantial" as that term presently 

is defined by the Commission, is not determinative or even 

relevant in these proceedings. I agree with Administrative 

Law Judge Broderick that whether a cited violation is checked 

as significant and substantial is per se irrelevant to the 

determination of the appropriate penalty to be assessed. 

United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983), 

PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion to withdraw be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine appropriate penalty amounts for the 11 citations. 

Otherwise, this case will be assigned and set down for hearing on the merits. 

Paul Merlin 

Chief Administrative Law Judge 
Distribution: 

Jonathan M. Kronheim, Esq., Office of the Solicitor, U. S. 

Department of Labor, 4015 Wilson Blvd., Rm. 1237A, Arlington, 

VA 22203 (Certified Mail) 

Ronnie Lester, D. L. & P. Coal Company, P. O. Box 143, 

Birchleaf, VA 24220 (Certified Mail) 

yh 

13 ~" Uu 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 18, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

ENERGY COAL CORPORATION, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 83-63 

A. C. No. 46-05793-03505 

No. 14 Mine 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion for a settlement 

approval for the two citations involved in this matter. The 

original assessments totaled $148 and the proposed settlements are for $20 apiece. 

This motion is predicated solely upon section 100.4 of 

the regulations of the Mine Safety and Health Administration, 

30 C.F.R. 100.4, which provides for the assessment of a $20 

single penalty for a violation which MSHA believes is not 

reasonably likely to result in a reasonably serious injury 

or illness. The Solicitor attaches to his motion copies of 

modifications to the subject citations deleting the "significant and substantial" description. On this basis he seeks 

approval of the so-called "single penalty assessment". 

The first violation was issued for accumulation of combustible materials, creating fire hazards. The second citation was issued for an unguarded drive chain and sprockets 

on a wall drill. The inspector indicated that negligence in 

both cases was moderate and that occurrence was reasonably 

likely. I am unable to approve the motion for settlements 

on the basis of the present record. In my opinion, $20 is a 

nominal penalty which indicates a lack of gravity. From the 

face of the two citations, and based upon the inspector's 

statements, it appears that the violations were serious and 

that the operator was negligent. Under such circumstances, 

a nominal penalty would not be warranted. See Orders Rejecting Proposed Settlement issued by Administrative Law Judge 

George A. Koutras in Glen Irvan Corporation, PENN 82-23 

(April 4, 1983) and PENN 82-25 (April 6, 1983). 

The MSHA "single penalty assessment" regulation is not 

binding upon the Commission. Indeed, it is not even relevant. 

Certainly the fact that the operator has agreed to tender 
payment cannot preclude the Commission from acting in accordance with the governing statute. 

The Act makes very clear that penalty proceedings before 

the Commission are de novo. The Commission itself recently 

recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in a proceeding 

before the Commission the amount of the penalty to be assessed 

is a de novo determination based upon the six statutory criteria -Specified in section llO(i) of the Act and the information relevant thereto developed in the course of the adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC 287 

(March 1983). Indeed, if this were not so, the Commission 

would be nothing but a rubber stamp for the Secretary. 

The fact that MSHA may have determined that this violation is not "significant and substantial'' as that term presently is defined by the Commission, is not determinative or 

even relevant in these proceedings. I agree with Administrative Law Judge Broderick that whether a cited violation is 

checked as significant and substantial is per se irrelevant 

to the determination of the appropriate penaltY:-to be assessed. 

United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983), 

PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlements be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalties are justified 

and settlements warranted. Otherwise, this case will be 

assigned and set down for hearing on the merits. 

Paul Merlin 

Chief Administrative Law Judge 

1305 
Distribution: 

Thomas A. Brown, Esq., Office of the Solicitor, U.S. Department 

of Labor, Rm. 14480-Gateway Bldg., 3535 Market St., Philadelphia, 

PA 19104 (Certified Mail) 

Donald McConnell, Director of Safety and Training, Energy Coal 

Corporation, P. O. Box 72, Paintsville, KY 41240 (Certified 

Mail) 

yh 

1 'Jn r: vvO 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 19, 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. CENT 82-107 

A.C. No. 03-01384-03020 

v. 

J & B No. 1 Mine 

R & S COAL COMPANY, INC., 

Respondent 

PARTIAL APPROVAL AND PARTIAL DISAPPROVAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion to approve 

for the two violations involved in this matter. 

assessments for the violations totaled $56. The 

settlement totals $40. 

settlements 

The original 

proposed 

Citation No. 1025373 was issued for failure to provide 

potable drinking water. I find this a nonserious violation 

on its face. The Solicitor advises that the operator 

exhibited a low degree of negligence. The Solicitor proposes 

a penalty of $20. Accordingly, I accept the proposed settlement. 

Citation No. 1025375 was issued for failure to keep 

walkways free of extraneous materials. The Solicitor 

advises that negligence was low and proposes a reduction in 

penalty from $28 to $20. In my opinion, $20 denotes a lack 

of gravity. In this instance, the citation states that a 

stumbling and slipping hazard existed. This violation 

appears serious on the face of the citation. Therefore, 

although I have not overlooked the operator's small size 

and small history, I cannot approve the proposed settlement 

on the basis of the information submitted to date. 

The Solicitor also advises that this citation was not 

"significant and substantial." It appears that the proposal 

to settle the citation for $20 was done as the result of the 

so-called "single penalty assessment" which is set forth in 

section 100.4 of the regulations of the Mine Safety and 

Health Administration, 30 C.F.R. § 100.4 which provides for 

130'1 
the assessment of a $20 single penalty for a violation MSHA 

believes is not reasonably likely to result in a reasonably 

serious injury or illness. This regulation is not binding 

upon the Commission and is not a basis upon which I could 

approve a settlement. 

The Act makes very clear that penalty proceedings 

before the Commission are de novo. The Commission itself --- recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in 

a proceeding before the Commission the amount of the penalty 

to be assessed is a de novo determination based upon the six 

statutory criteria specified in section llO(i) of the Act 

and the information relevant thereto developed in the course 

of the adjudicative proceeding. Sellersburg Stone Company, 

5 FMSHRC 287 (March 1983). Indeed, if this were not so, the 

Commission would be nothing but a rubber stamp for the 

Secretary. 

The fact that MSHA may have determined that this 

violation is not ''significant and substantial" as that term 

presently is defined by the Commission, is not determinative 

or even relevant in this proceeding. I agree with Administrative Law Judge Broderick that whether a cited violation 

is checked as significant and substantial is per se irrelevant 

to the determination of the appropriate penalty tO-be 

assessed. United States Steel Mining Co., Inc., 5 FMSHRC 

934 (May 1983), PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

I wil~ not order payment of the settlement amount for 

Citation No. 1025373 pending final disposition of Citation 

No. 1025375. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

1308 
to determine whether the proposed penalty for Citation 

No. 1025375 is justified and settlement warranted. Otherwise, this case will be assigned and set down for hearing on 

the merits. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Jack F. Ostrander, Esq., Office of the Solicitor, u. S. 

Department of Labor, 555 Griffin Square Building, Dallas, TX 

75202 (Certified Mail) 

Mr. Rick Brown, R & S Coal Company, Inc., P. 0. Box 468, 

Lamar, AR 72846 (Certified Mail) 

/ln 

1303 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

July 19, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

BLACK BEAUTY COAL COMPANY, 

INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 83-53 

A. C. No. 12-01897-03501 

Arlen No. 1 Mine 

DENIAL OF MOTION TO WITHDRAW PROPOSAL FOR PENALTY 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion to withdraw his petition 

for civil penalties for the 8 violations involved· in this 

matter. As grounds for this motion, the Solicitor recites 

that he has received a check from the operator in the amount 

of $160 in full payment for the 8 penalties. The Solicitor 

further states that the operator has represented that it desires to withdraw its contest of the proposed penalties and 

that the full payment of these penalties is a satisfactory and 

appropriate resolution of this controversy. The citations 

were issued for a variety of conditions, including lack of 

audible warning devices, lack of seat belts, and inoperative 

parking brakes on various types of equipment. 

The Solicitor does not refer to any MSHA regulations in 

support of his motion but rather relies upon the operator's 

payment, its wish to withdraw its contest, and the allegation 

that the payment already made is a satisfactory and appropriate resolution of this matter. It appears from the assessment 

sheet that all of these violations were so-called "single 

penalty assessments''. Such assessments are made pursuant to 

section 100.4 of the regulations of the Mine Safety and Health 

Administration, 30 C.F.R. § 100.4, which provides for the 

assessment of a $20 single penalty for a violation which MSHA 

believes is not reasonably likely to result in a reasonably 

serious injury or illness. 

I am unable to approve the motion to withdraw on the 

basis of the present record. In my opinion, $20 is a nominal 

penalty which indicates, among other things, a lack of gravity. 

I have been told nothing about gravity, negligence, or any of 

the other statutory factors which would enable me to make an 

informed judgment as to proper penalty amounts for these citations. Certainly, each citation on its face does not indicate 

a lack of gravity. 

1310 
The MSHA regulation in question is not binding upon the 

Corrunission. Indeed, it is not even relevant. Moreover, the 

fact that the operator has tendered payment cannot preclude 

the Corrunission from acting in accordance with the governing 

statute. 

The Act makes very clear that penalty proceedings before 

the Corrunission are de novo. The Corrunission itself recently 

recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in a proceeding 

before the Corrunission the amount of the penalty to be assessed 

is a de novo determination based upon the six statutory criteria -Specified in section llO(i) of the Act and the information relevant thereto developed in the course of the adjudicative proceeding. Sellersburg Stone Comoany, 5 FMSHRC 287 

(March 1983). Indeed, if this were not so, the Corrunission 

would be nothing but a rubber stamp for the Secretary. 

The fact that MSHA may have determined that this violation 

is not "significant and substantial" as that term presently is 

defined by the Corrunission, is not determinative or even relevant in these proceedings. I agree with Administrative Law 

Judge Broderick that whether a cited violation is checked as 

significant and substantial is per se irrelevant to the determination of the appropriate penalty~o be assessed. United 

States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983), PDR 

granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Corrunission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion to withdraw be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalties are justified and 

settlements warranted. Otherwise, this case will be assigned 

and set down for hearing on the merits. 

Paul Merlin 

Chief Administrative Law Judge 

1311 
Distribution: 

Mark A. Holbert, Esq., Office of the Solicitor, u. S. Department 

of Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604 

(Certified Mail) 

T. C. Chambers, Safety Director, Black Beauty Coal Co., 

Inc., R.R. #1, Box 133, Plainville, IN 47568 (Certified 

Mail) 

.. r'1 -"4 .-··~ 

l.01.~ 

yh 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 19, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CRESCENT HILLS COAL COMPANY, 

INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 82-326 

A. C. No. 36-03554-03501 

Crescent Mine 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion to approve settlements 

for the 12 violations involved in this case. Based upon the 

present record, I am unable to approve the motion. 

Nine of the violations carry proposed penalty settlements 

ranging from $74 to $158. The Solicitor does not discuss 

these violations individually. Rather in a summary paragraph 

he states that all of them were serious, that the operator's 

negligence ranged from ordinary to moderately high, and that 

all were abated within the time set by the inspectors. I 

have been given no information about the operator's size, 

prior history and ability to continue in business. The 

proposed settlements may be appropriate but since I do not 

have complete information, I cannot act in accordance with 

all statutory criteria set forth in section llO(i) of the 

Act. I recognize that the proposed settlements are for the 

originally assessed amounts but this is not determinative. 

The Solicitor must furnish the required information. 

The Solicitor proposes settlements for the remaining 

three violations in the amounts of $20 apiece. These proposed 

settlements are predicated solely upon section 100.4 of the 

regulations of the Mine Safety and Health Administration, 30 

C.F.R. 100.4 which provides for the assessment of a $20 single 

penalty for a violation which is not reasonably likely to result in a reasonably serious injury or illness~ 

I am unable to approve the motion for the $20 settlements. 

In my opinion, $20 is a nominal penalty which indicates a lack 

of gravity. With respect to these three violations, I have 

been told nothing about gravity, negligence, or any other factors which would enable me to make an informed judgment· as 

to proper penalty amounts for these items. The MSHA regulation 

in question is not binding upon the Commission. Indeed, it 

1313 
is not even relevant. Moreover, the fact that the operator 

has tendered payment cannot preclude the Commission from 

acting in accordance with the governing statute. 

The Act makes very clear that penalty proceedings 

before the Commission are de novo. The Commission itself --- recently recognized that it is not bound by penalty assessment 

regulations adopted by the Secretary but rather that in a proceeding before the Commission the amount of the penalty to be 

assessed is a de novo determination based upon the six statutory criteria specified in section llO(i) of the Act and the 

information relevant thereto developed in the course of the 

adjudicative proceeding. Sellersburg Stone Company, 5 FMSHRC 

287 (March 1983). Indeed, if this were not so, the Commission 

would be nothing but a rubber stamp for the Secretary. 

The fact that MSHA may have determined that this vio-.1. lation is not "significant and substantial" as that terci 

presently is defined by the Commission, is not determinative 

or even relevant in these proceedings. I agree with Administrative Law Judge Broderick that whether a cited violation 

is checked as significant and substantial is per se irrelevant 

to the determination of the appropriate penalty tO-be assessed. 

United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 1983), 

PDR granted June 22, 1983. Regardless of the Secretary's 

regulations, once this Commission's jurisdiction attaches we 

have our own statutory responsibilities to fulfill and discharge. This can only be done on the basis of an adequate 

record. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlements be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalties are justified 

and settlements warranted. Otherwise, this case will be 

assigned and set down for hearing on the merits. 

-- Chief Administrative Law Judge 

1314 
Distribution: 

David E. Street, Esq., Office of the Solicitor, U. s. Department 

of Labor, Rm. 14480-Gateway Bldg., 3535 Market St., Philadelphia, 

PA 19104 (Certified Mail) 

Melvin E. Peluchette, Vice President, Crescent Hills Coal 

Company, Inc., 408 Millcraft Center, Washington, PA 15301 

(Certified Mail) 

yh 1315 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 · 

July 19, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

ANSCO, INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 83-67 

A.C. No. 36-02713-03501 B43 

Frenchtown Strip Mine 

PARTIAL DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion to approve settlements for 

the three violations involved in this matter. The proposed 

settlements are for the originally assessed amounts. Two violations 

were assessed at $20 apiece and one violation was assessed at $98. 

While the motion for settlement contains sufficient information to approve settlement of the $98 violation, there is little 

information regarding the two $20 violations. In my opinion, $20 

denotes a lack of gravity. However, the $20 violations are for 

lack of insulated bushings and proper fittings for power wires in 

a generator and lack of non-conductive material at a circuit box. 

The inspector has checked boxes on the citations which indicate 

that negligence was low and an accident was unlikely to occur in 

each case. I cannot approve a settlement on the basis of checks 

in boxes because no reasons are given for the bare conclusions 

represented by the checks. 

The Solicitor advises that the two violations which are 

assessed at $20 each were done so as the result of the so-called 

"single penalty assessment'' which is set forth in section 100.4 

of the regulations of the Mine Safety and Health Administration, 

30 C.F.R. § 100.4 which provides for the assessment of a $20 single 

penalty for a violation MSHA believes is not reasonably likely to 

result in a reasonably serious injury or illness. This regulation 

is not binding upon the Commission and is not a basis upon which I 

could approve a settlement. 

The Act makes very clear that penalty proceedings before the 

Commission are de novo. The Commission itself recently recognized 

th~t it is not bound by penalty assessment regulations adopted by 

the Secretary but rather that in a proceeding before the Commission 

the amount of the penalty to be assessed is a de novo determination 

based upon the six statutory criteria specifiecr-in-section llO(i) 
of the Act and the information relevant thereto developed in the 

course of the adjudicative proceeding. Sellersburg Stone Company, 

5 FMSHRC 287 (March 1983). Indeed, if this were not so, the 

Commission would be nothing but a rubber stamp for the Secretary. 

The fact that MSHA may have determined that these violations 

are not ''significant and substantial" as that term presently is 

defined by the Commission, is not determinative or even relevant 

in this proceeding. I agree with Administrative Law Judge Broderick 

that whether a cited violation is checked as significant and substantial is per se irrelevant to the determination of the appropriate penalty tO-be assessed. United States Steel Mining Co., Inc., 

5 FMSHRC 934 (May 1983), PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be done 

on the basis of an adequate record. 

I approve of the settlement of the $98 violation but will 

not direct payment until information is furnished for the two 

$20 violations. 

ORDER 

In light of the foregoing, it is Ordered that the Solicitor's 

motion for settlement be Denied. 

It is further Ordered that within 30 days from the date of 

this order the Solicitor file information adequate for me to 

determine whether the proposed $20 penalties for the two citations 

discussed above are justified and settlement warranted. Otherwise, 

this case will be ass~~wn for hearing on the merits. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

William M. Connor, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Ansco, Incorporated, P.O. Box 4371, 901 Neubling Ave., 

Evansville, IN 47711 (Certified Mail) 

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1317 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 19, 1983 

CIVIL P~ALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 82-60 

A.C. No. 40-00650-03501 

v. 

No. 4 Surface Mine 

DEAN COAL COMPANY, 

Respondent 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

In accordance with what now is apparently becoming standard 

practice, the Solicitor has filed a motion for settlement in the 

amount of $20 for the one violation involved in this matter. The 

motion is predicated solely upon section 100.4 of the regulations 

of the Mine Safety and Health Administration, 30 C.F.R. § 100.4 

which provides for the assessment of a $20 penalty for a violation 

which is not reasonably likely to result in a reasonably serious 

injury or illness. In my opinion, $20 indicates a lack of gravity. 

The citation was issued for the use of a refuse truck with an 

inoperative automatic reverse warning device. I cannot say the 

violation appears to be nonserious on the face of the citation. 

In any event, I have been told nothing by the Solicitor about 

gravity or negligence or any other of the statutory factors which 

would enable me to make an informed judgment as to the proper 

penalty for this violation. 

I am unable to grant the Solicitor's motion on the basis of 

the present record. The Act makes very clear that penalty proceedings before the Commission are de novo. The Commission itself 

recently recognized that it is not bound by penalty assessment 

regulations adopted by the Secretary but rather that in a proceeding before the Commission the amount of the penalty to be assessed 

is a de novo determination based upon the six statutory criteria 

specified in section llO(i) of the Act and the information relevant 

thereto developed in the course of the adjudicative proceeding. 

Sellersburg Stone Company, 5 FMSHRC 287 (March 1983). Indeed, if 

this were not so, the Commission would be nothing but a rubber stamp 

for the Secretary. 

The fact that MSHA may have determined that this violation 

is not "significant and substantial" as that term presently is 

defined by the Commission, is not determinative or even relevant 

1313 
in this proceeding. I agree with Administrative Law Judge Broderick 

that whether a cited violation is checked as significant and substantial is per se irrelevant to the determination of the appropriate penalty tO-be assessed. United States Steel Mining Co., Inc., 

5 FMSHRC 934 (May 1983), PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be done 

on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the Solicitor's 

motion for settlement be Denied. 

It is further Ordered that within 30 days from the date of 

this order the Solicitor file information adequate for me to 

determine whether the proposed penalty is justified and settlement 

warranted. Otherwise, this case will be assigned and set down for 

hearing on the merits. ~---~r~~-....~-

C. ---+--\ 

Paul 

~ Merlin 

Chief Administrative Law Judge 

Distribution: 

Carole M. Fernandez, Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Mr. Ralph M. Ross, President, Dean Coal Company, 4912 Westover 

Terrace S.E., Knoxville, TN 37914 (Certified Mail) 

/fb 

1319 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 19, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

EASTOVER MINING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. VA 83-18 

A.C. No. 44-00294-03516 

No. 1 Mine 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has submitted a motion to withdraw his 

petition for the assessment of civil penalty on the ground 

that the operator has agreed to payment of the proposed 

penalties in full. The motion must be denied. 

This case involves three citations. 

The first item is a Section 104(d) order, 00930034, 

which was subsequently modified to a Section 104(a) citation. 

According to the Solicitor after MSHA review it was determined that the violation involved no reasonable likelihood 

of a reasonably serious injury occurring. On this basis the 

Solicitor proposes a "single penalty assessment" of $20. 

This penalty amount apparently is predicated upon section 

100.4 of the regulations of the Mine Safety and Health 

Administration, 30 C.F.R. § 100.4 which provides for the 

assessment of a $20 single penalty for a violation which 

MSHA believes is not reasonably likely to result in a 

reasonably serious injury or illness. 

In my opinion, $20 is a nominal penalty which indicates 

a lack of gravity. It may be that this violation was nonserious, but I have been told nothing by the Solicitor about 

gravity or negligence or any of the other statutory factors 

which would enable me to make an informed judgment as to a 

proper penalty for this violation. The violation which was 

cited for a failure to lock out and tag a disconnecting 

device was said by the inspector in a modification to involve no negligence or gravity, but the inspector gave no 

reasons. I cannot accept this. 

1 <) '.).O Vf.., 
The MSHA regulation in question is not binding upon the 

Commission. Indeed, it is not even relevant. The Act makes 

very clear that penalty proceedings before the Commission 

are de novo. The Commission itself recently recognized that 

it iS-not bound by penalty assessment regulations adopted by 

the Secretary but rather that in a proceeding before the 

Commission the amount of the penalty to be assessed is a 

de novo determination based upon the six statutory criteria 

specified in section llO(i) of the Act and the information 

relevant thereto developed in the course of the adjudicative 

proceeding. Sellersburg Stone Company, 5 FMSHRC 287 (March 

1983). Indeed, if this were not so, the Commission would be 

nothing but a rubber stamp for the Secretary. 

The fact that MSHA may have determined that this violation is not ''significant and substantial" as that term 

presently is defined by the Commission, is not determinative 

or even relevant in these proceedings. I agree with Administrative Law Judge Broderick that whether a cited violation 

is checked as significant and substantial is per se irrelevant 

to the determination of the appropriate penalty t~be assessed. 

United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 

1983), PDR granted June 22, 1983. Regardless of the Secretary's regulations, once this Commission's jurisdiction 

attaches we have our own statutory responsibilities to 

fulfill and discharge. This can only be done on the basis 

of an adequate record. 

The Solicitor further advises that a penalty of $136 

has been proposed by MSHA for the next item which was a 

104(d) order, 00932049, involving a roof violation under 

30 C.F.R. § 75.200. The Solicitor, however, gives no discussion of the subject condition and, as already pointed 

out, this ~s a de novo proceeding in which the original 

assessment amount is not in any way determinative. The 

inspector said in a modification that negligence was high 

and occurrence of the event reasonably likely. The inspector gave no reasons, but even his bare conclusions cast 

some doubt upon a $136 penalty. 

The same is true of the third item which is a section 

104(d) (2) order, 00931995, alleging a violation of 30 C.F.R. 

§ 75.1725. For this item the Solicitor advises that MSHA 

has proposed a penalty of $275. However, beyond stating 

the bare conclusion that the operator exhibited a high 

1321 
degree of negligence and that the violation was significant 

and substantial, the Solicitor gives no basis for approval 

of this amount. I cannot accept bare conclusions which have 

no supporting rationale. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion to withdraw be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalties are justified and 

settlements warranted. Otherwise, this case will be assigned 

and set down for hearing on the merits. 

-- Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Leo J. McGinn, Esq., Office of the Solicitor, u. S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Eastover Mining Company, General Delivery, Brookside, KY 

40801 (Certified Mail) 

/ln 1322 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 19, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MAGMA COPPER COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 82-208-M 

A.C. No. 02-00151-05501 

San Manuel Mine 

DENIAL OF MOTION TO WITHDRAW 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion to withdraw based on 

full payment of the original assessment of the one violation 

involved in this matter. The citation was assessed at $20. 

The Solicitor, however, has given me no basis to 

approve the proposed settlement. There is no analysis of 

why $20 is an appropriate penalty for the violation. The 

Solicitor merely states that the operator has paid the 

originally assessed amount and has filed for a modification 

of the cited standard. The citation is for failure to 

properly bush insulated wires extending out of three 

junction boxes. I cannot find a lack of gravity on the 

face of the subject citation. I have not overlooked the 

statements in the motion to withdraw that the only issue 

presented is whether a strain relief clamp is the equivalent 

of the bushing requirement in the standard and that the 

operator has filed a petition for modification on this 

·question. However, I have not been specifically told 

whether a clamp was used here and if it was, whether such 

use rendered the violation nonserious. 

It appears from the assessment sheet that the one 

violation which was assessed at $20 was done so as the 

result of the so-called "single penalty assessment" which 

is set forth in section 100.4 of the regulations of the 

Mine Safety and Health Administration, 30 C.F.R. § 100.4 

which provides for the assessment of a $20 single penalty 

for a violation MSHA believes is not reasonably likely to 

result in a reasonably serious injury or illness. This . 

regulation is not binding upon the Commission and is not 

a basis upon which I could approve a settlement. 

1323 
The Act makes very clear that penalty proceedings before the 

Commission are de novo. The Commission itself recently recognized 

that it is not bound by penalty assessment regulations adopted by 

the Secretary but rather that in a proceeding before the Commission 

the amount of the penalty to be assessed is a de novo determination 

based upon the six statutory criteria specifiecr-in section llO(i) 

of the Act and the information relevant thereto developed in the 

course of the adjudicative proceeding. Sellersburg Stone Company, 

5 FMSHRC 287 (March 1983). Indeed, if this were not so, the 

Commission would be nothing but a rubber stamp for the Secretary. 

The fact that MSHA may have determined that this violation is 

not "si~nificant and substantial" as that term presently is defined 

by the Commission, is not determinative or even relevant in this 

proceeding. I agree with Administrative Law Judge Broderick that 

whether a cited violation is checked as significant and substantial 

is per se irrelevant to the determination of the appropriate penalty 

to be assessed. United States Steel Mining Co., Inc., 5 FMSHRC 934 

(May 1983), PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be done 

on the basis of an adequate record. 

ORDER 

In light of the foregoing, it is Ordered that the Solicitor's 

motion be Denied. 

It is further Ordered that within 30 days from the date of 

this order the Solicitor file information adequate for me to 

determine whether the proposed penalty is justified and withdrawal 

based upon an appropriate payment warranted. Otherwise, this case 

will be assigned and set down for hearing on the merits. F &£&aol 

Distribution: 

Theresa Fay Bustillos, Esq., Office of the Solicitor, U.S. 

Department of Labor, 11071 Federal Building, 450 Golden Gate 

Avenue, Box 36017, San Francisco, CA 94102 (Certified Mail) 

N. Douglas Grimwood, Esq~, Twitty, Sievwright & Mills, 

1700 TowneHouse Tower, 100 West Clarendon, Phoenix, AZ 85013 

(Certified Mail) 

/fb 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 19, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CASPER CONCRETE COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 83-30-M 

A.C. No. 48-00715-05501 

Casper Gravel Pit 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The parties have filed a motion to approve settlements 

for the seven violations involved in this matter. The proposed settlements are for the originally assessed amounts. 

Six violations were assessed at $20 apiece and one violation 

was assessed at $98. 

The motion for settlement approval contains no discussion 

whatsoever regarding any of the alleged violations. Rather 

the motion merely states that the Secretary agrees with and 

relies upon MSHA's evaluation of the statutory criteria and 

concludes: 

WHEREFORE, the parties pray that the 

proposed penalties be approved, respondent be 

granted leave to withdraw its contest to the 

penalties as proposed by the agency, and an 

order be entered requiring respondent to pay 

the proposed penalties within forty days of 

the filing of an order approving the penalties. 

Although the Secretary may be willing to rely upon 

MSHA's evaluation of the statutory criteria, this Commission 

most certainly cannot do so without violating its statutory 

mandate. In my opinion, $20 is a nominal penalty which 

denotes a lack of gravity. A reading of these citations 

indicates that at least on their face the possibility that 

some degree of gravity may have been present. I have been 

told nothing about any of the other six statutory criteria. 

1325 
The $20 "single penalty assessments" are obviously 

predicated upon section 100.4 of the regulations of the Mine 

Safety and Health Administration, 30 C.F.R. § 100.4 which 

provides for the assessment of a $20 single penalty for a 

violation MSHA believes is not reasonably likely to result 

in a reasonably serious injury or illness. These regulations 

are not binding upon the Commission and indeed are not even 

relevant in these proceedings. 

The Act makes very clear that penalty proceedings 

before the Commission are ~ de ~~ nova. The Commission itself 

recently recognized that it is not bound by penalty assessment 

regulations adopted by the Secretary but rather that in a 

proceeding before the Commission the amount of the penalty 

to be assessed is a de novo determination based upon the six 

statutory criteria specified in section llO(i) of the Act 

and the information relevant thereto developed in the course 

of the adjudicative proceeding. Sellersburg Stone Company, 

5 FMSHRC 287 (March 1983). Indeed, if this were not so, the 

Commission would be nothing but a rubber stamp for the 

Secretary. 

The fact that MSHA may have determined that these 

violations are not "significant and substantial'' as that 

term presently is defined by the Commission, is not determinative or even relevant in these proceedings. I agree 

with Administrative Law Judge Broderick that whether a cited 

violation is checked as significant and substantial is 

per se irrelevant to the determination of the appropriate 

penalty to be assessed. United States Steel Mining Co., 

Inc., 5 FMSHRC 934 (May 1983), PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

Moreover, I cannot approve the $98 settlement for the 

remaining violation. This citation was issued for a failure 

to ground a wire in violation of section 56.12-25. On the 

citation form the inspector indicated occurrence of the 

feared event was reasonably likely, injury could be fatal 

and negligence was moderate. I do not believe I can predicate approval or disapproval of a proposed settlement on 

nothing more than boxes checked by an inspector. But I 

note that these checks, without more, indicate that the 

proposed $98 penalty would be too low. 

1326 
ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalties are justified 

and settlement warranted. Otherwise, this case will be 

assigned and set down for hearing on the merits. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

James H. Barkley, Esq., Office of the Solicitor, u. s. 

Department of Labor, 1585 Federal Building, 1961 Stout 

Street, Denver, CO 80294 (Certified Mail) 

Eugene A. Lalonde, Esq., Casper Concrete Company, P. O. 

Box 30238, Billings, MT 59107 (Certified Mail) 

/ln 1327 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 26, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THURBER COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 83-24 

A.C. No. 41-02867-03502 

Thurber Coal Mine 

DENIAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The parties have filed a motion to approve settlement 

for the seven violations involved in this matter. The proposed settlement is for the originally assessed amount. Six 

violations were assessed at $68 apiece and one violation was 

assessed at $20. 

The motion for settlement contains no discussion or 

analysis regarding the factual circumstances of the alleged 

violations. No information is given regarding gravity or 

negligence. The inspector checked various boxes on the 

citation forms indicating his opinion regarding levels of 

negligence and gravity but as I have indicated in other 

cases I cannot rely upon these "checks" as a basis for 

settlement approval when the Solicitor does not explain what 

the checks mean. I recognize that the Solicitor's motion 

sets forth that in the 24 months prior to the inspection the 

operator was inspected 29 times and received 14 assessed 

violations. The motion further advises that payment of the 

proposed penalties will not impair the operator's ability to 

continue in business. However, in addition to being given 

insufficient advice about gravity and negligence, no information is given by the Solicitor regarding size and good 

faith abatement. I am unable to determine whether the 

proposed settlement amounts are appropriate. 

With respect to the one proposed settlement amount of 

$20, I further make the following observations. This proposed settlement is a "single penalty assessment" apparently 

1328 
predicated upon section 100.4 of the regulations of the Mine 

Safety and Health Administration, 30 C.F.R. § 100.4 which 

provides for the assessment of a $20 single penalty for a 

violation MSHA believes is not reasonably likely to result 

in a reasonably serious injury or illness. This regulation 

is not binding upon the Commission and is not a basis upon 

which I could approve a settlement. 

The Act makes very clear that penalty proceedings 

before the Commission are de nova. The Commission itself --- recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in 

a proceeding before the Commission the amount of the penalty 

to be assessed is a de nova determination based upon the six 

statutory criteria specified in section llO(i) of the Act 

and the information relevant thereto developed in the course 

of the adjudicative proceeding. Sellersburg Stone Company, 

5 FMSHRC 287 (March 1983). Indeed, if this were not so, the 

Commission would be nothing but a rubber stamp for the 

Secretary. 

The fact that MSHA may have determined that this 

violation is not "significant and substantial" as that term 

presently is defined by the Commission, is not determinative 

or even relevant in this proceeding. I agree with Administrative Law Judge Broderick that whether a cited violation 

is checked as significant and substantial is per se irrelevant 

to the determination of the appropriate penalty tO-be assessed. 

United States Steel Mining Co., Inc., 5 FMSHRC 934 (May 

1983), PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

Finally, the fact of payment by the operator is not 

determinative of the Commission's duties and obligations in 

this matter. 

1329 
ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed penalties are justified 

and settlement warranted. Otherwise, this case will be 

assigned and set down for hearing on the merits. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Jack F. Ostrander, Esq., Office of the Solicitor, U. S. 

Department of Labor, 555 Griffin Square Building, Dallas, TX 

75202 (Certified Mail) 

Mr. Bobby Williams, Thurber Coal Company, P. O. Box 400, 

Arlington, TX 76010 (Certified Mail) 

/ln 

13~30 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 26, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MAIDEN MINING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 83-183 

A.C. No. 46-05806-03505 

No. 3 Mine 

PARTIAL APPROVAL AND PARTIAL DISAPPROVAL OF SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

The Solicitor has filed a motion to approve settlement 

for the four violations involved in this matter. The proposed settlement is for the originally assessed amounts. 

Three violations were assessed at $20 apiece and one violation 

was assessed at $126. The operator has already tendered 

payment of $186. 

Citation No. 2122147 was issued because a disconnect 

plug was not marked for identification. The violation was 

serious and the operator was moderately negligent. The 

Solicitor proposes to settle this violation for the original 

assessment of $126. I accept the Solicitor's representations. 

The Solicitor proposes to settle the other three 

citations for the original assessments of $20 apiece. In 

my opinion, $20 is a nominal penalty which denotes a lack of 

gravity. The three citations involve accumulations of coal 

and coal dust, and permissibility violations. A reading of 

these citations indicates on their face the possibility that 

some degree of gravity may have been present. The Solicitor 

provides no information about the gravity or negligence 

involved in these citations. I cannot approve these proposed 

settlements on the basis of the information submitted to date. 

The $20 "single penalty assessments" were obviously 

predicated upon section 100.4 of the regulations of the Mine 

Safety and Health Administration, 30 C.F.R. § 100.4 which 

provides for the assessment of a $20 single penalty for a 

1331 
violation MSHA believes is not reasonably likely to result 

in a reasonably serious injury or illness. This regulation 

is not binding upon the Commission and is not a basis upon 

which I could approve a settlement. 

The Act makes very clear that penalty proceedings 

before the Commission are de novo. The Commission itself 

recently recognized that itisnot bound by penalty assessment 

regulations adopted by the Secretary but rather that in a 

proceeding before the Commission the amount of the penalty 

to be assessed is a de novo determination based upon the six 

statutory criteria specified in section llO(i) of the Act 

and the information relevant thereto developed in the course 

of tne adjudicative proceeding. Sellersburg Stone Company, 

5 FMSHRC 287 (March 1983). Indeed~ if this were not so, the 

Commission would be nothing but a rubber stamp for the 

Secretary. 

The fact that MSHA may have determined that these 

violations are not "significant and substantial" as that 

term presently is defined by the Commission, is not determinative or even relevant in this proceeding. I agree with 

Administrative Law Judge Broderick that whether a cited 

violation is checked as significant and substantial is 

per se irrelevant to the determination of the appropriate 

penalty to be assessed. United States Steel Mining Co., 

Inc., 5 FMSHRC 934 (May 1983), PDR granted June 22, 1983. 

Regardless of the Secretary's regulations, once this 

Commission's jurisdiction attaches we have our own statutory 

responsibilities to fulfill and discharge. This can only be 

done on the basis of an adequate record. 

I will not order that the case be dismissed with respect 

to Citation No. 2122147 pending final disposition of the 

three other citations. 

ORDER 

In light of the foregoing, it is Ordered that the 

Solicitor's motion for settlement be Denied. 

It is further Ordered that within 30 days from the date 

of this order the Solicitor file information adequate for me 

to determine whether the proposed $20 penalties for the 

13- ·~ 'J ur.,., 
three citations discussed above are justified and settlement 

warranted. Otherwise, this case will be assigned and set 

down for hearing on the merits. 

~~ Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

David A. Pennington, Esq., Office of the Solicitor, U. S. 

Department of Labor, Rm. 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Mr. Robert 0. Weedfall, Maiden Mining Company, P. O. Box 

235, Maidsville, WV 26541 (Certified Mail) 

/ln 

1330 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL~ i 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. PENN 82-335 

A.C. No. 36-00970-03503 

v. 

Maple Creek No. 1 Mine 

U.S. STEEL MINING COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Covette Rooney, Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, Pennsylvania, 

and Frederick w. Moncrief, Esq., Office of the 

Solicitor, U.S. Department of Labor, Arlington, 

Virginia, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

This is a civil penalty proceeding wherein the Secretary seeks 

penalties for five alleged violations of mandatory health and safety 

standards. Petitioner filed a motion for summary decision with 

respect to the violation charged in Citation No. 9901317 which was 

denied by an order issued April 6, 1983. Pursuant to notice, the 

case was heard in Uniontown, Pennsylvania, on April 27 and 28, 1983. 

During the course of the proceeding, Petitioner moved to withdraw 

the petition with respect to one citation - 9901316 - on the ground 

that it could not establish a violation, and to have the citation 

vacated. The motion was granted on the record. Respondent admitted 

that the violations charged occurred but challenged the designation 

of the violations as significant and substantial and contested the 

amount of the penalties proposed. Joe Garcia, Thomas K. Hodous, M.D., 

William H. Sutherland, William R. Brown, Alvin Shade and Gerald E. 

Davis testified for Petitioner. Samuel Cortis, Joseph G. Ritz, 

Paul Shipley and John Pecko testified for Respondent. 

133,1 
Both parties have filed posthearing briefs. Based on the 

entire record and considering the contentions of the parties, I 

make the following decision. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW COMMON TO ALL CITF.TIONS 

1. At all times pertinent to this proceeding, Respondent 

owned and operated an underground mine in Washington County, 

Pennsylvania, known as Maple Creek No. 1 Mine. 

2. Respondent has an annual production of coal of approximately 

15 million tons. The subject mine has an annual production of 

approximately 540 thousand tons. Respondent is a large operator. 

3. Between June 3, 1980 and June 2, 1982, Respondent's history 

shows 656 paid violations at the subject mine. Of these, four were 

violations-of 30 C.F.R. § 70.101, 71 were violations of 30 C.F.R. 

§ 75.200, and 73 were violations of 30 C.F.R. § 75.503, the health 

and safety standards involved in this case. This is a moderate 

history of prior violations, and penalties otherwise appropriate 

will not be increased because of this history. 

4. Each of the violations charged herein occurred except as 

otherwise found herein, and in each case the violation was abated 

promptly and in good faith. 

5. The imposition of penalties for the violations will not 

affect Respondent's ability to continue in business. 

6. Respondent is subject to the provisions of the Federal Mine 

Safety and Health Act of 1977 in the operation of the subject mine, 

and the undersigned Administrative Law Judge has jurisdiction over 

the parties and the subject matter of this proceeding. 

CITATION NO. 9901317 ISSUED MAY 27, 1982 

1. On October 26, 1981, a respirable dust technical inspection 

was conducted on mechanized mining unit 010-0 in the subject mine. 

A sample collected at that time for occupation 036 showed 10 percent 

quartz. Based on this finding the respirable d~st limit on the unit 

was reduced to 1.0 mg/m3. A sample taken on February 10, 1982, 

showed 8 percent quartz and the dust limit was raised to 1.2 mg/m3. 

In response to a request from Respondent, a technical investigation 

was conducted from February 22 to March 1, 1982. This showed an 

average dust concentration of 2.3 mg/m3. A citation was issued for 

a violation of the dust standard. The same investigation showed a 

quartz percentage of 7 and the respirable dust level was raised to 

1.4 mg/m3. Between May 11 and 18, five respirable dust samples were 

taken which showed an average concentration of 1.8 mg/m3 for which 

the citation with which we are here concerned was issued. 

133,. .. 

v 
2. Exposure to excessive amounts of respirable dust with a 

quartz content in excess of five percent can contribute to silicosis 

and coal workers pneumoconiosis. The quartz content in the dust can 

be a factor in the progression of simple coal workers pneumoconiosis. 

It can also cause silicosis, a progressive, serious disease of the 

lungs resulting from deposition of silica in the lung and the body's 

reaction to it. Coal workers pneumoconiosis and silicosis are 

reasonably serious illnesses. 

3. An exposure to 1.8 mg/m3 of respirable dust which contains 

approximately seven percent quartz over a 2-month period, would not 

in itself cause silicosis but would contribute in a substantial way 

to the risk of acquiring silicosis. See Secretary v. U.S. Steel 

Mining Co., Inc., 5 FMSHRC 46, 67-68 (1983) (ALJ). 

4. The violation of 30 C.F.R. § 70.101 which occurred in this 

case was reasonably likely to result in a reasonably serious disease. 

Therefore, it was of such nature as could significantly and substantially contribute to the cause and effect of a coal mine safety or 

health hazard. See Secretary v. Cement Division, National Gypsum 

Company, 3 FMSHRC 822 (1981); Secretary v. U.S. Steel Mining Co., 

Inc., supra; I should note that the precise issue raised by Respondent in this case was raised by it in the case of Secretary v. 

U.S. Steel Mining Co., lnc., supra, before Judge Kennedy. A decision 

by a tribunal of competent jurisdiction is res judicata in a subsequent proceeding between the same parties involving the same issue. 

46 Am. Jur. Judgments§ 397 (1969); lB Moore's Federal Practice 

§ 0.405 (1982). Factual differences not essential to the prior 

judgment do not render the doctrine inapplicable. Montana v. United 

States, 440 U.S. 147 (1979); Hicks v. Quaker Oats Co., 662 F.2d 1158 

(5th Cir. 1981). Respondent had a full and fair opportunity to litigate this issue before Judge Kennedy and to petition the Commission 

for review. Based on the doctrine of res judicata, it should be 

precluded from relitigating it here. The government, however, did 

not raise this issue, and the case was heard on the merits. My 

conclusion here is based on a consideration of the evidence in the 

case before me. Respondent should not be permitted to endlessly 

raise this issue, however. I accept and adopt the analysis and 

conclusions of Judge Kennedy that exposure to respirable dust with 

a quartz content that exceeds 100 micrograms per cubic meter of air 

constitutes a significant risk of a serious health hazard. See also 

Consolidation Coal Co. v. Secretary, 5 FMSHRC 378 (1983) (ALJ). 

5. There is no evidence that the violation was the result of 

Respondent's negligence. 

6. I conclude that an appropriate penalty for the violation 

is $200. 
CITATION NO. 1250101 ISSUED MAY 21, 1982 

1. The subject citation was issued because the inspector 

found a broken torque wrench on the roof bolter. Roof bolting was 

being performed at the time. The torque wrench gauge had been 

damaged and could not be used to determine the torque of the bolts. 

The approved roof control plan requires that the first bolt be 

checked prior to removing any temporary supports. Only one bolt 

had been installed by the crew and no attempt to torque the bolt 

had been made prior to the citation being issued. The roof control 

plan is not violated by the fact that the torque wrench was defective, but only if the operator fails to torque the bolts in accordance with the plan. Despite the fact that Respondent at the 

commencement of the hearing admitted a violation, I conclude that 

the evidence does not show a violation of the roof control plan and 

will dismiss the petition with respect to this citation, and the 

citation will be vacated. 

CITATION NO. 1249541 ISSUED JUNE 1, 1982 

1. The subject citation was issued charging a violation of 

30 C.F.R. § 75.503 because of a permissibility violation in a 

shuttle car resulting from a conduit being pulled out of the packing gland. The violation was originally designated as significant 

and substantial but this designation was subsequently deleted. 

2. The violation was not serious but it was the result of 

Respondent's negligence. Respondent had been cited for the same 

condition "quite a few times." 

3. I conclude that an appropriate penalty for the violation 

is $75 based on the criteria in section llO(i) of the Act. 

CITATION NO. 1250107 ISSUED JUNE 3, 1981 

1. The subject citation was issued because of a permissibility 

violation, 30 C.F.R. § 75.503, resulting from the absence of a bolt 

on the control compartment on the foot switch of a shuttle car. 

2. In the event of methane entering the control compartment, 

an internal explosion would be less likely to be contained within 

the compartment and could get into the mine atmosphere. The shuttle 

car was energized and was being prepared to load coal from the face. 

3. The subject mine has been classified as a gassy mine. 

Ignitions have occurred in the subject mine. 

4. I conclude that the violation was reasonably likely to 

cause an injury of a reasonably serious nature. The citation was 

properly designated significant and substantial. The violation was 

serious. The absence of the bolt should have been known to Respondent. The violation was the result of Respondent's negligence. 

1337 
5. I conclude that an appropriate penalty for the violation 

is $200 based on the criteria in section llO(i) of the Act. 

ORDER 

Based on the above findings of fact and conclusions of law 

IT IS ORDERED 

(1) The penalty proceeding is DISMISSED with respect to the 

violations charged in Citation Nos. 9901316 issued May 27, 1982, 

and 1250101 issued May 21, 1982, and the citations are VACATED. 

(2) Respondent shall pay within 30 days of the date of this 

decision civil penalties for the following violations: 

Citation No. 

9901317 

1249541 

1250107 

Date 

05/27/82 

06/01/82 

06/03/82 

Penalty Amount 

$200 

$ 75 

$200 

$475 

(3) The citation Nos. 9901317 and 1250107 were properly 

designated "significant and substantial" and are AFFIRMED as issued. 

(4) In Citation No. 1249541, the designation "significant and 

substantial" was deleted. 

' /_ .· I 

J . I 

J _ 11,Av, ,.,,.. ,, ,.,,-? , r'V- '; ![) ,JJ 1 J i l d{_, ., I{; ,,,..____ 

" James A. Broderick 

Administrative Law Judge 

Distribution: 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department of 

Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelpha, PA 19104 (Certified Mail) 

Frederick w. Moncrief, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh, 

PA 15230 (Certified Mail) 

/fb 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

I\ l' -~ :"1.. ln.M j~;l. -, ' ~ 

RUSSELL COLLINS AND 

VIRGIL KELLEY, 

APPLICATIO!l FOR ATTORNEYS FEES 

Applicants 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

Docket No. EAJ 83-1 

DECISION 

Statement of the Case 

Following my decision dismissing a civil penalty 

proceeding brought by the Secretary of Labor under section 

llO(c) of the Mine Safety Law, 4 FMSHRC 1816 (1982), two of 

the six individuals charged moved for an award of costs and 

attorneys fees. 1/ Jurisdiction over the claim arises under 

the Equal Access-to Justice Act (EAJA), 5 U.S.C. § 504(a). 

The bench decision dismissing the charges occurred 

after lengthy pretrial discovery and a four-day evidentiary 

hearing. It was predicated on a failure of proof with 

respect to both the underlying violation and applicants' 

alleged knowing participation therein. 

Thereafter, counsel for the Secretary waived his right 

to challenge the tentative bench decision; agreed there was 

insufficient evidence to show applicants knowingly authorized, 

ordered or carried out the violation charged; joined nunc 

pro tune applicants' motion to dismiss at the close of the 

1/ The gravamen of the charge was that applicants, a 

superintendent and a foreman at the Annapolis, Missouri 

quarry of the GAF Corporation, with knowledge that the 

braking system of a large haulage truck was unsafe, 

authorized or ordered miners to operate the truck on a 

steep haulage road thereby endangering their lives. The 

relevant mandatory safety standard, 30 C.F.R. 56.9-2, 

prohibits the use of self-propelled equipment with "defects 

affecting safety." 

1339 
receipt of· evidence; and in the alternative independently 

moved to dismiss the Secretary's charges on the grounds 

stated in the decision of the trial judge. 2/ 

An exhaustive review of the record shows the Secretary's 

evidence failed to rise above a level of suspicion. Indeed, 

the countervailing evidence as to the drivers' negligence 

and reckless disregard for safe operation of the truck, 

which both the underlying investigation and the solicitor's 

pretrial discovery largely ignored, convincingly shows that 

the government's litigation position was factually and 

legally untenable. The failure to properly evaluate the 

probative force of this evidence, including the implausibility 

of the characterizations of the operative facts by the 

Secretary's witnesses, led to an improvident decision to 

proceed where no prosecutable offense had, in fact, been 

committed. 

2/ The Secretary contends the trial judge's denial of 

applicants' motion to dismiss at the close of MSHA's casein-chief shows the government's litigation position was 

substantially justified. As my decision made clear, because 

of the need for clarification of the testimony given by the 

bench witness Warnecke I resolved all questions of credibility and conflicts in favor of the Secretary. This afforded 

applicants the opportunity to present the trial judge with 

a full exposition of the claimed flaws in the government's 

position. The first benefit of that decision was the Secretary's 

accedence in the correctness of the trial judge's tentative 

decision as to the final disposition of the matter. ~he 

second benefit was the light which that record affords for 

making this decision. 

For these reasons, I find the Secretary's threshold 

contention without merit. The Secretary vigorously opposed 

the motion to dismiss at the close of MSHA's case-in-chief 

although at that time counsel had to be painfully aware of 

the unreliability of MSHA's witnesses. There is authority, 

of course, for holding the government liable for attorney 

fees and expenses where it adopts, even briefly, a litigation position lacking substantial justification. H.R. Rep. 

1418, 96th Cong., 2d Sess., 11 (1980); S. Rep. 253, 96th 

Cong., 1st Sess. 7 (1979); Stanley Spencer v. NLRB, D.C. 

Cir. No. 82-1851, decided June 28, 1983, Slip Op. at 34, 

n. 58. But since counsel for applicants' has not separately 

argued the point I will treat it as subsumed under the 

argument that the record considered as a whole shows the 

government's position in the underlying litigation was no~ 

substantially justified. 
The record at trial confirmed the fatal flaws in the 

pretrial investigation and preparation of the case. The 

same considerations that led to the decision to dismiss four 

of the six respondents after two days of trial supported my 

finding that the claimed mechanical defect in the braking 

system was not a defect affecting safety. Further, applicants' knowledge of the complaining drivers' improper and 

unsafe operating procedures justified applicants' reliance on 

brake adjustments to correct the condition and did not 

violate applicants' duty under the law to provide a vehicle 

capable of safe operation. 

As the court of appeals has recently pointed out, the 

fact that government counsel may have felt reasonably 

justified in putting applicants to their proof does not mean 

the agency was substantially justified in pursuing the 

litigation. One of the principal purposes of the EAJA was 

to deter prosecutors from pursuing weak cases or to pay the 

price in sizeable awards of attorneys fees. 3/ Stanley Spencer, 

supra, Slip Op. at 22, n. 40; 39-41. Thus, it would be 

improper for me to accept as a substantial justification the 

bald assertion that the testimony of the complaining drivers, 

if uncritically accepted, was sufficient to warrant this 

prosecution. As the court noted, where the controversy 

revolves around competing characterizations of the underlying facts, here a defect in the braking system allegedly 

affecting safety, the ''trial judge must a-ssess the plausibility 

of the government's original depiction of the situation that 

gave rise to the suit." This "involves evaluation of the 

probative force of evidence submitted by the government." 

Stanley Spencer, supra at 51-52. 

The government's only disinterested witness, Mr. Zancauske, 

was reliable but gave no evidence probative of a defect in 

the braking system affecting safety. It is true that he 

testified there might have been a defect in the braking 

system but he could not say it affected safe operation of 

the truck. On the other hand, he unreservedly expressed the 

view that the principal problem was the drivers' habit of 

riding the brakes on the steep inclines instead of gearing 

down and engaging the retarder. Counsel, who admitted he 

had never interviewed Mr. Zancauske before he testified, 

made a serious error in believing Mr. Zancauske would provide 

probative evidence of the underlying violation. Absent 

reliable, probative and substantial evidence of the underlying 

3/ Indeed the EAJA seems to be a specific grant of authority 

to review the exercise of prosecutorial discretion. 

1341 
violation, the Secretary could never hope to prove applicants 

knew or should have known of its existence. It is impossible 

for an individual to have knowledge of the unknowable or of 

the existence of the nonexistent. 

A review of the investigative file further shows the 

inspection and investigation were botched due to a lack of 

diligence, if not competence, on the part of both the 

inspector and investigator. Nor did their failure to appear 

as witnesses because they chose to take a vacation enhance 

the worth of their efforts. 

Applying what I understand is the applicable standard, 

a standard which Congress and the courts deem to be "slightly 

more stringent than one of reasonableness," I conclude that 

neither the underlying nor the ligitation position of the 

Secretary was substantially justified. 4/ S. Rep. 96-253, 

supra, at 8; Stanley Spencer, supra, Slip Op. 16, n. 31, 25, 

39. 

Because this case presents a matter of first impression 

under the EAJA for the trial judge and the Commission as 

well as an issue of eligibility which has never before been 

decided by any tribunal, administrative or judicial, I set 

forth below my formal findings and conclusions. 

Findings and Conclusions 

Attorney Fees - Eligibility 

The Equal Access to Justice Act (EAJA} requires the 

award of attorney fees and expenses to a qualified party 

prevailing against a regulatory agency unless the administrative law judge who heard and determined the matter finds 

4/ While the EAJA indicates that it was the Secretary's 

position "as a party," on which I should focus, I agree with 

the court's observation that "Examination of the variety of 

kinds of controversies covered by the Act reveals that, in 

the large majority of contexts, it makes no functional 

difference how one conceives of the government's 'position.' 

In actions brought by the United States, the governmental 

action that precipitates the controversy almost invariably 

is its litigation position." Stanley Spencer, supra at 25. 

That was certainly true in this case. 

134~2 
that "th~ position·of the agency as a party to the proceedings 

was substantially justified or that special circumstances 

make an award unjust." ~/ 

Administrative Law Judges of the Federal Mine Safety 

and Health Review Commission are by law the designated 

adjudicative officers under the Mine Safety Law for charges 

brought under section llO(c) of the Act. 30 U.S.C. § 823(d) (1). 

The Commission has determined therefore that they are 

authorized to hear and determine claims for fees and expenses 

arising under the EAJA against the Department of Labor which 

is charged with responsibility for enforcing the Mine Safety 

Law. 29 C.F.R. 2704.20l(f). Unlike the old line regulatory 

agencies such as the FTC, SEC, ICC, FCC, CAB and NLRB, the 

Federal Mine Safety and Health Review Commission (FMSHRC) 

does not initiate or prosecute the adversary administrative 

adjudications that it hears and decides. This Commission is 

an independent administrative agency that functions as an 

administrative trial and appellate court. 30 U.S.C. § 823. 

The Commission possesses only adjudicative powers, has no 

prosecutorial prerogatives, is not a party to proceedings 

brought before it, and is not responsible for the actions of 

the Department of Labor in initiating or prosecuting alleged 

violations of the law. Under the Commission's rules, awards 

are made by the Commission and its judges against the Department of Labor. 29 C.F.R. 2704.108. Findings by the Commission's 

trial judges are final and conclusive if supported by substantial evidence. Chacon v. Phelps Dodge Corporation, D.C. 

Cir. No. 81-2300, decided June 7, 1983, Slip Op. at 9-10. 

Judicial review is available in the courts of appeals under 

an abuse of discretion standard only to the extent that a 

decision denies an award or there is a dispute over the 

calculation of an award. 5 U.S.C. § 504(c) (2). §_I 

~ 5 U.S.C. § 504(a) provides: 

An agency that conducts an adversary adjudication shall 

award, to a prevailing party other than the United 

States, fees and other expenses incurred by that party 

in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of 

the agency was substantially justified or that special 

circumstances make an award unjust. 

6/ Stewart, Beat Big Government and Recover Your Legal 

Fees, 69 ABAJ 912 (1983); Few Claimants Win Fee Awards in 

Agency Actions, Legal Times, Monday, April 25, 1983, p. l; 

Courts Debate Reach of EAJA, Legal Times, Monday, May 16, 

1983, p. 16. 

1343 
There is no d1spute about the fact that applicants were 

prevailing parties whose individual net worth was less than 

$1,000,000. The Secretary suggests a special circumstance 

warranting denial of applicants' eligibility, however, is 

the fact that they incurred no expense in defending themselves. 

Applicants' employer, GAF Corporation, a large, multinational corporation with more than 500 employees and a net 

worth that exceeds $5,000,000 authorized one of its fulltime house counsel, Mr. Patrick Daly, to represent applicants 

with the understanding that (1) GAF would defray all of the 

expense involved without right of reimbursement from applicants and (2) if applicants prevailed Mr. Daly would be 

entitled to keep whatever attorney fees and expenses he 

succeeded in recovering. If the allowance of fees for 

Mr. Daly's services is in accord with the purposes and 

policy of the Act, I can perceive no valid basis for denying 

applicants' eligibility even if payment to Mr. Daly amounts 

to a bonus to him over and above the salary and benefits he 

earned from GAF during the period of his pro bono representation of applicants. Under the Commission~rules and the 

applicable case law the fact that services are rendered on a 

pro bono basis is no bar to the recovery of fees for such 

services by a prevailing party. Rule 2704.106(a); Hornal v. 

Schweiker, 551 F. Supp. 612, 615-616 (M.D. Tenn. 1982); 

Kinne v. Schweiker, Civ. No. 80-81, D. Vt., December 29, 

1982. Compare Munsey v. FMSHRC, No. 82-1079, D.C. Cir., 

March 11, 1983. Contra, Cornella v. Schweiker, 553 F. Supp. 

240, 245-248 (D.S.D. 1982). 

The language of the Act and its legislative history 

lead me to conclude the underlying policy of the EAJA is 

served by awarding applicants Mr. Daly's fees regardless of 

the source of the funds advanced to enable him to def end 

applicants. The Act, as well as the House and Senate 

Committee Reports, show that to be allowable fees and expenses 

need not be actually owed to attorneys. The Act provides 

that awards are to be based on "prevailing market rates," 

5 U.S.C. § 504(b) (1) (A), and that this is to be the measure 

of the prevailing party's recovery. The "measure" of applicants' entitlement has nothing to do with whether they owe 

all, some, or none of it to the attorney or anyone else. 

The House Report states: 

In general, consistent with the above limitations 

[$75.00 per hour], the computation of attorney fees 

should be based on prevailing market rates without 

reference to the fee arrangements between the attorney 

and client. The fact that attorneys may be providing 

1 n t1 • u ':i. '1 
services at salaries or hourly rates below the standard 

commercial rates which attorneys might normally receive 

for services rendered is not relevant to the computation of compensation under the Act. 

H.R. Rep. 96-1418, supra, at 15. The Senate Report is to 

the same effect. For these reasons, I conclude that in 

considering applicants' claims for Mr. Daly's fees the 

source of the funds used to defray Mr. Daly's expenses 

pendente lite and the actual fee arrangement between applicants and Mr. Daly is irrelevant. 

On the other hand, I find special circumstances bar the 

award of fees and expenses for services rendered by outside 

attorneys employed by GAF to assist Mr. Daly in his representation 

of applicants. These attorneys did not enter appearances in 

the matter on behalf of applicants, had no colorable attorneyclient relationship with applicants, and no pro bono or 

other fee arrangement with applicants. They were employed 

by Mr. Daly in his capacity as labor attorney for GAF on the 

understanding that their billings would be sent to and paid 

for by GAF. These fees and expenses, which totalled $13,139.31, 

were, in fact, paid by GAF Corporation for the services 

rendered. Under these circumstances, payment of these sums 

to Mr. Daly or applicants would be a pure windfall. Further, 

since the outside attorneys have been paid by GAF the statute 

does not authorize further payment to them. 

The remaining question is whether GAF Corporation 

qualifies directly for reimbursement of the fees and expenses 

incurred on behalf of applicants. I find payment of these 

monies is not compensable to GAF because this tax deductible 

business expense was made not only on behalf of applicants 

but in pursuit of GAF's own business interests. These were 

GAF's interests in (1) supporting and defending its supervisory management against what it firmly believed to be 

trumped-up charges of reckless disregard for safety and 

(2) creating a precedent against MSHA's easy acceptance of 

charges of wrongdoing against supervisors by union representatives and rank-and-file miners. In other words, GAF 

had a large stake in this litigation from the standpoint of 

preserving management's valued right to manage its quarry 

without unwarranted intrusion on that right by the union and 

MSHA. 

While it is clear that a deterrent to improvident 

regulatory action is in accord with the purposes and policy 

of the Act for eligible applicants, here GAF was not an 

eligible applicant. 5 U.S.C. § 504(b) (1) (B); H.R. Rep. 96-

1418, supra, at 15. Because of its size and wealth the 

1345 
economic deterrent the Act sought to remove with respect to 

applicants was never present with respect to GAF which, 

quite properly, chose to join in applicants' defense as a 

matter of sound and prudent business policy. Further, as a 

necessary and proper business expense incurred by GAF, up to 

54% of the sums in question have already been fee-shifted to 

the government under the applicable provisions of the 

Internal Revenue Code. 

Under the circumstances shown, I believe GAF's participation was sufficient to make it a privy to applicants' 

defense. The claim for fees and expenses for the outside 

attorneys and law firms is therefore, disallowed on the 

ground that this expense was primarily incurred on behalf of 

an entity ineligible to receive compensation under the terms 

of the statute. 7/ It is also denied on the ground that to 

allow an award oF the outside attorney fees and expenses to 

applicants or GAF would, under the special circumstances 

shown, be unjust and inequitable. ~/ 

The Standard 

The EAJA does not require the Government to compensate 

prevailing parties automatically for fees and expenses. 

Instead, it adopts a compromise position, embodied in the 

standard of "substantial justification," which "balances the 

constitutional obligation of the executive branch to see 

that the laws are faithfully executed against the public 

interest in encouraging parties to vindicate their rights." 9/ 

H.R. Rep. No. 96-1418, supra, at 10. In particular, Congress 

rejected the liberal standard of recovery under the civil 

rights statutes which generally entitle prevailing plaintiffs 

2/ Rule 2704.104(g) provides: 

An applicant that participates in a proceeding primarily 

on behalf of one or more other persons or entities that 

would be ineligible is not itself eligible for an 

award. 

8/ The House Report notes the "special circumstances" 

exception was intended to give the trial judge "discretion 

to deny awards where equitable consideration dictate an 

award should not be made." H.R. Rep. 96-1418, supra, at 11. 

9/ An analogous provision, 28 U.S.C. § 2412 affords a 

similar entitlement to attorney fees and expenses to prevailing parties in the courts. 

1346 
to receive an award of attorney fees unless special circumstances would render an award unjust. See Newman v. Piggie 

Park Enterprises, Inc., 390 U.S. 400, 402 (1968). 

At the same time, Congress rejected a standard proposed 

by the Department of Justice which would have authorized 

recovery of fees and expenses against the Government only if 

a _prevailing party could prove that the government's position 

was arbitrary, frivolous, unreasonable, or groundless. H.R. 

Rep. 96-1418, supra, at 10, 14. See, Christianbery Garment 

Co. v. EEOC, 434 U.S. 412, 420-421 (1978). Such a restrictive 

approach, Congress reasoned, would maintain significant 

barriers to recovery of fees by prevailing litigants and 

would not appreciably diminish existing deterrents created 

by the high cost of vindicating legal rights in the face of 

arbitrary and unreasonable government action. Id. 

The standard of recovery that ultimately emerged 

represents a "middle ground" between an automatic award of 

fees to a prevailing party engaged in litigation with an 

agency and the standard proposed by the Department of 

Justice. Although the Act itself is silent on the meaning 

of the "substantially justified" standard, the House Report 

contains an instructive passage: 

The test of whether or not a Government action is 

substantially justified is essentially .one of reasonableness. Where the Government can show that its case 

had a reasonable basis both in law and fact, no award 

will be made. In this regard the strong deterrents to 

contesting Government action require that the burden of 

proof rest with the Government. This allocation of the 

burden, in fact, reflects a general tendency to place 

the burden of proof on the party who has readier access 

to and knowledge of the facts in question. The committee 

believes that it is far easier for the Government, 

which has control of the evidence, to prove the reasonableness of its action than it is for a private party 

to marshal the facts to prove that the government was 

unreasonable. 

* * * * * * 

The standard, however, should not be read to raise a 

presumption that the Government position was not 

substantially justified, simply because it lost the 

case. Nor, in fact, does the standard require the 

Government to establish that its decision was based on 

a substantial probability of prevailing. 

H.R. Rep. 96-1418, supra, 10-11. 

134'1 
The legislative history also teaches that the government 

must "make a positive showing that its position and actions 

during the course of the proceedings were substantially 

justified." H.R. Rep. 96-1418, supra 13. In Tyler Business 

Services v. NLRB, 695 F.2d 73, 75 (4th Cir. 1982), the court 

held this requires an agency to substantially justify not 

only its actions as a party to the proceeding but also its 

preliminary decision to initiate the proceeding. Contra, 

Stanley Spencer, supra. 

In cases charging knowing violations by supervisors, 

MSHA acts as the investigator. The decision as to whether 

there is a prosecutable offense and the conduct of the 

prosecution, however, rests with the Office of the Solicitor, 

Department of Labor. While the record is replete with 

indications of the ineptness of the investigation, this 

would not require an award if the solicitor's pretrial 

preparation and discovery filled the voids in the investigative record to the point where it can fairly be said that 

by the time of the evidentiary hearing the solicitor had 

substantial, legally competent evidence of the violations 

charged. If, on the other hand, the solicitor's case, as 

presented, shows that at no time did he have such relevant 

evidence as a reasonable mind might accept as adequate to 

support a finding that the underlying violation occurred and 

that applicants knew or should have known of the putative 

condition I cannot find the Secretary's litigation position 

was substantially justified. 

Since the advent of the EAJA, the quality of departmental in-house lawyering must obviously improve. No 

longer may the solicitor ''wing" it or rest on MSHA's recommendation as the justification for pursuing weak and tenuous 

cases. The solicito~ must make an independent evaluation of 

the probative force of his evidence in the light of the 

expected defense and whatever else fairly detracts from the 

probative value of his evidence. 

The need to raise the level of the plane of litigating 

competence in administrative proceedings was foreshadowed by 

the legislative history's admonition that the EAJA was 

intended "to caution agencies to carefully evaluate their 

case and not to pursue those which are weak or tenuous." 10/ 

10/ The Act was intended to "induce government counsel to 

evaluate carefully each of the various claims they might 

make in a particular controversy, and to assert only those 

that are substantially justified." Stanley Spencer, supra, 

at 36. 

1346 
H.R. Rep. 96-1418, supra, 14. The requirement for pretrial 

evaluation of the worth of evidence when coupled with the 

burden of demonstrating that a litigation position was 

substantially justified were purposely designed to press 

agencies "to address the problem of abusive and harassing 

regulatory practices." H.R. Rep. 96-1418, supra, 14. 

Further, because this was a case in which the government conceded only after there was a substantial investment 

of effort and money the Secretary was required to make an 

"especially strong showing that [his] persistence in litigation was justified." Stanley Spencer, supra, at 43. 

Compare Id. 16, n. 31, 22, n. 40, 33-34, n. 58. 

Insight as to the Secretary's burden is gleaned from 

the following passage of the legislative history: 

Certain types of case dispositions may indicate that 

the Government action was not substantially justified. 

A court should look closely at cases, for example, 

where there has been a judgment on the pleadings or 

where there is a directed verdict or where a prior suit 

on the same claim had been dismissed. Such cases 

clearly raise the possibility that the Government was 

unreasonable in pursuing the litigation. 

H.R. Rep. No. 96-1418, supra, at 10-11; S. Rep. No. 96-253, 

supra, at 6-7. 

Here, of course, the record shows that after protracted 

litigation the Secretary acceded by joining the applicants' 

motion to dismiss the charges. 

Nevertheless, the Secretary argues that because the 

underlying case involved questions of credibility it was per 

se "reasonable" for government counsel to pursue the litigation. I do not agree. 

A central objective of the Act was to require government counsel to carefully evaluate the worth of informers' 

testimony. No longer may counsel for the Secretary offer 

such testimony "for whatever its worth." At least not 

without risk of the imposition of substantial awards for 

attorney fees and expenses. 

As the court of appeals so trenchantly observed, the 

purposes of the Act will "not be promoted by treating the 

question of whether the position taken by the United States 

in a particular case was 'substantially justified' as 

134U 
equivalent to the question whether it was 'reasonable' for 

government counsel to pursue the litigat~on." Stanley 

Spencer, supra, at 39. My analysis of the government's 

litigation position shows its counsel gullibly accepted 

totally implausible stories by witnesses who had every 

incentive to disinform if not outright lie. The fact that 

bureaucratic constraints may have encouraged counsel to 

accept their stories at face value does not justify a conclusion that the decision to proceed, followed by dogged pursuit 

of a "long shot" was substantially justified. 

I conclude, therefore, that the standard to be applied 

in determining whether the Secretary's case was substantially 

justified was not whether it was arguably or reasonably 

justified by the investigatory record but whether an objective evaluation of the probative force of the evidence 

adduced at the hearing shows that there was sub~tantial 

credible evidence that the braking system of the Euclid 

truck had a defect affecting safety; that applicants knew or 

should have known of this condition; and that with such 

knowledge or awareness they tacitly ordered or authorized 

continued use of the truck. 11/ 

Evidence which was discredited or which did not directly 

or circumstantially raise an inference of the existence of 

an operative fact was not substantial and therefore did not 

constitute a substantial justification fo~ the agency's 

litigation position. In this context substantial evidence 

is used, to mean "such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion'' and 

not "a certain quantity [or preponderance] of evidence." 

Steadman v. SEC 450 U.S. 69, 98-100 (1980). 

11/ Substantial evidence may consist of either direct or 

circumstantial evidence. It need not be dispositive but 

standing unrebutted must be capable of raising an inference 

of the existence of the operative fact or facts in issue. 

If it does not raise such an inference it is not substantial 

and cannot provide a substantial justification for prosecution of a case. I recognize that statutory formulations for 

reviewing discretion are among the most unsatisfactory of 

legislative standards. Words such as "substantial justification" or "abuse of discretion" state conclusions, not 

premises from which a conclusion may be derived. While 

these verbal formulas provide the terms in which the conclusion of invalidity may be pronounced, they do nothing to 

articulate the process of analysis by which the issue of 

invalidity is to be litigated and decided. 

..J_ 1 3 <..) r '0 
The Evidence 

At the outset of the hearing the Secretary offered a 

document subpoenaed from the files of the Midco Sales & 

Service Company which showed that after the imminent danger 

closure order (later modified to an unwarrantable failure 

citation) was issued GAF immediately employed Midco to 

perform repairs on the braking system of the Euclid truck 

(GX-1). This document, a purchase order, invoice, and 

service report covering the work done, was offered through 

Mr. Jerry D. Zancauske, service manager for Midco, to establish 

(1) the fact of violation under the strict liability standard 

of the Act, and (2) culpable conduct, i.e., consciousness of 

fault through awareness of the existence of a defect affecting 

safety on the part of the six individual respondents (Tr. 

38-39). 

Counsel for respondents objected to the receipt of this 

document and testimony pursuant to the exclusionary rule set 

forth in Rule 407 of the Federal Rules of Evidence (Tr. 24, 

39). Rule 407 provides: 

When, after an event, measures are taken which, if 

taken previously, would have made the event less 

likely to occur, evidence of the subsequent measures is 

not admissible to prove negligence or culpable conduct 

in connection with the event. This rule does not 

require the exclusion of evidence of subsequent 

measures when offered for another purpose, such as 

proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. 12/ 

The trial judge admitted the document and Mr. Zancauske's 

testimony solely to prove the fact of violation under the 

strict liability standard of the Mine Safety Law. (Tr. 39-

41). 13/ 

12/ The document was never used for impeachment nor was the 

fact of ownership, control or feasibility of precautionary 

measures ever controverted. 

13/ The trial judge also admitted the invoice, service 

report and G~F's purchase order, all of which were part of 

the same document, as records kept in the regular course of 

business (Tr. 64, 75-76), and as an implied admission under 

Rules 801 (d) (2) (A), (B), (D), and 803 (6) (Tr. 78). Since 

this evidence was barred under Rule 407, it was not properly 

received under these rules. 23 Wright & Graham, Federal 

Practice & Procedure § 5284, at 109-110 (1980). 

1351 
A review of the applicable case law shows that since at 

least 1980 the weight of authority has supported the view 

that Rule 407 bars the receipt of post hoc remedial measures 

with respect not only to culpable conduct but also strict 

liability. Neither counsel brought these authorities to 

the attention of the trial judge during the hearing. 

Nevertheless, in deciding whether the Secretary's action in 

prosecuting this matter was substantially justified I find 

it necessary to consider whether in view of the practical 

unaniminity of the decisions interpreting Rule 407 as 

precluding the receipt of evidence of post-event repairs to 

show strict liability, negligence, or culpable conduct it 

was reasonable for the Secretary to rely on this inadmissible 

evidence as the keystone of his case against these applicants. I conclude it was not. 14/ 

Rule 407 of the Federal Rules of Evidence bars postevent remedial evidence to prove (1) strict liability, 

(2) negligence, or (3) culpable conduct. The rationale for 

this exclusionary rule is the public interest in encouraging 

the adoption of safety measures and the questionable relevancy 

of evidence of subsequent repairs. 2 Wigmore, Evidence 

§ 283, at 151 (3 Ed. 1940); Columbia and P.S.R.R. v. Hawthorne, 

144 U.S. 202, 207-208 (1892); Weinstein's Evidence, ~ 407(02) 

(1982); Louisell and Mueller, Federal Evidence, §§ 163, 164 

(1978); 23 Wright & Graham, Federal Practice and Procedure, 

§ 5382 (1980). 

While there is, and will probably continue to be, 

considerable debate, at least among the commentators, over 

whether the quasi-privilege created by Rule 407 encourages 

people to correct unsafe conditions or practices, there is 

practical unanimity among the courts of appeals on the 

question of relevance. Because of its equivocal nature, the 

courts have held that evidence of subsequent repair has 

little relevance with respect to whether a defect affecting 

safety existed in a machine or product prior to its repair . 

.!.!/ Even if properly received, which I find it was not, the 

repair report was of little or no probative value since 

standing alone it did not establish that the drivers' complaints 

over the need for frequent adjustments was attributable to 

any defect affecting safety in the equipment. Further, 

Mr. Zancauske's testimony served only to corroborate the 

respondents' claim that the principal defect affecting 

safety was the improper driving habits of the drivers 

assigned to operate the equipment (Tr. 104-105). 

1 '{ r:-,' 

t.J d r::. 
Grenada Steel Industries v. Alabama Oxygen Co., 695 F.2d 

883, 887 (5th Cir. 1983), and cases cited. 

The commentators also favor the view that Rule 407 does 

not apply in strict liability cases. Again the federal 

circuit courts have disagreed. Research discloses that long 

before this case went to trial it had been authoritatively 

held in the First, Second, Third, Fourth, Fifth, Sixth and 

Seventh Circuits that post hoc remedial measures were not 

admissible in strict liability cases. Grenada Steel Industries, 

supra, at 888; Oberst v. International Harvester Company, 

640 F.2d 863, 866 & n. 5 (7th Cir. 1980). Compare DeLuryea 

v. Winthrop Labs., 697 F.2d 222, 229 (8th Cir. 1983). 

Counsel for the Secretary was chargeable with knowledge 

of these developments in the law of evidence, including the 

fact that the Supreme Court had denied certiorari in two of 

the leading cases that support application of the exclusionary 

rule in strict liability proceedings. Werner v. Upjohn Co., 

628 F.2d 848 (4th Cir. 1980); cert. denied, 449 U.S. 1080 

(1981); Cann v. Ford Motor Co.~8 F.2d 54, 59-60 (2d Cir. 

1981), cert. denied U.S. , 72 L Ed. 484 (1982). In 

Cann, the court observed: 

The failure of Rule 407 to refer explicitly to actions 

in strict liability does not prevent its application to 

such actions. When Congress enacted the Federal Rules 

of Evidence, it left many gaps and omissions in the 

rules in the expectation that common law principles 

would be applied to fill them . . . . The application 

of those principles convinces us that although negligence and strict product liability causes of action are 

distinguishable, no distinction between the two justified 

the admission of evidence of subsequent remedial measures 

in strict product liability actions. Id. at 60. 

The question of admissibility aside, a review of the 

totality of the evidence as to the repairs effected by Midco 

shows the Secretary was not justified in believing the 

brakes on the Euclid truck were defective at the time the 

closure order issued. Mr. Zancauske candidly admitted that 

while he supervised the brake repairs he had no personal 

knowledge or "hands on" experience with the condition of the 

brakes either before or after the closure order issued and 

that from the service report he could not testify as to what 

the "holding ability or stopping ability of the brakes of 

this truck" were prior to the time Midco worked on it (Tr. 

59). When pressed for an opinion he could only say he 

"surmised" that safety of the brakes may have been adversely 

affected by the presence of an unknown quantity of oil or 

1353 
grease on one of the brake linings (Tr. 59-63, 107-109). 

Whether this was a "major" or "minor" defect and whether it 

affected safety he said he could not say (Tr. 108-109). 

Most telling was the foli'owing colloquy between counsel for 

the Secretary and Mr. Zancauske: 

Counsel: 

Q. Can you explain what it means to adjust the brakes 

on this type of machine, on this very machine, let's say, 

the Euclid truck? 

Judge: If you know. 

Counsel: 

Q. If you know. If you were to adjust the brakes, and 

they get hot and have to be backed off, what does that 

indicate to you, sir? 

A. That somebody might be riding the brakes overheating them. 

Q. And if this continues over a two month period for 

practically every eight-hour shift at this quarry, and 

sometimes even eight and nine times during this shift that 

the brakes have to be adjusted they get hot and have to be 

backed off, and this occurs for a two month period, what 

would that indicate to you, sir? 

A. Well you could assume several things. One, that 

the operator is driving too fast, he's not using the retarder. 

Q. Let's assume he's using the retarder. 

Judge: Let him answer the question, don't interrupt. 

Go ahead, sir. 

A. Not using the retarder, he's driving too fast, or 

the hauls are in such a short sequence that the brakes are 

having to be used too much, that maybe not all of the 

wheels are not holding to their ability that they were 

designed for. 

* * * * * * 

Counsel: 

Q. What is the effect of the brakes heating up, does 

that help deteriorate them? 
A. If you have an overheating condition of the brakes 

for a period of time, you'll heat crack the drums and glaze 

the lining, which will affect your stopping ability. Tr. 

104-105. 

Three days and many hundreds of transcript pages later 

the undisputed testimony of Mr. Weigenstein, an experienced 

quarry foreman and GAF's expert on the repair and maintenance 

of the Euclid truck gave substantially the same reasons for 

the need for repeated adjustments to the brakes, namely, the 

fact that the complaining drivers drove too fast, failed or 

refused to use the retarder and continually rode the brakes 

on the steep inclines thus overheating the brakes and impairing 

their braking power (Tr. 861-868). 

Counsel for the Secretary admitted neither he nor 

MSHA's investigator had interviewed either Mr. Zancauske or 

Mr. Weigenstein before they testified and apparently had no 

idea that they would be in agreement as to the causes for 

the brakes overheating and losing their braking power. 

Despite this the Secretary contends that he was substantially justified in pursuing these matters because (1) a 

mechanic of admittedly limited experience and knowledge but 

who worked on the truck believed the adjustments were not 

effective to remedy the condition because of a break in a 

seal on the right rear wheels which allowed grease to leak 

on the brake lining causing the lining to crystallize and 

lose braking power, (2) the mechanic related this defect to 

applicants at a meeting on February 15, 1980, (3) applicants 

reportedly took no corrective action but authorized continued 

use of the truck, and (4) Mr. Zancauske the service manager 

for Midco who supervised the post-citation repair work 

believed that if there was oil or grease on the right rear 

brake lining it could result in a "slipping effect" on that 

wheel assembly that could diminish the degree of friction 

necessary for proper braking of the truck. 

Facts developed on cross examination showed that the 

mechanic's testimony was highly unreliable. He was an 

individual with an obviously selective memory and little 

experience as a heavy equipment mechanic. The only completely 

candid testimony he gave was persuasive of the fact that he 

had never pulled the right rear wheel assembly of the truck 

to examine the alleged oil or grease leak and that the 

crystallization of the lining on the other wheels was, he 

believed, due to the complaining drivers' penchant for 

riding the brakes down the steep grades (Tr. 324, 327, 364). 

Had a thorough pretrial interview of the witness been 

1355 
conducted, these facts would have been .known to governr,1ent 

counsel before Mr. Stevens testified. ~ 

With respect to the Secretary's other contentions, 

applicants claim the Secretary knew or should have known 

(1) that after the meeting on Friday, February 15, 1980, 

applicant Collins assigned applicant Kelley to investigate 

the complaints about the truck, (2) Mr. Kelley went to the 

day shift driver, Mr. Warnecke, and asked him to check the 

brakes, (3) Mr. Warnecke checked the brakes and reported 

they were "adequate," (4) the truck was not operated thereafter (because of the intervening weekend and Washington's 

Birthday holiday) until Tuesday, February 19, 1980, (5) that 

Mr. Collins told Mr. Weigenstein the quarry foreman who had 

over 3o years experience in maintaining heavy haulage equipment (20 years on this truck alone) to perform a thorough 

check of the braking system of the truck on the afternoon of 

Tuesday, February 19, 1980, (6) that Mr. Weigenstein took 

the truck out of service on the evening shift of Tuesday, 

February 19, and for four hours performed a complete overhaul of the braking system, (7) that Mr. Weigenstein did not 

find any measurable amount of oil or grease leaking on the 

right rear brake drum but did find and correct a leak in the 

hose that serviced the retarder, (8) that Mr. Howard, one 

of the complaining drivers, knew this work was performed on 

the truck, (9) that when the truck was put back into service 

on the midnight shift on February 20, it had no defect 

affecting safety, (10) that Mr. Johnson one of the complaining 

drivers drove the truck during that entire shift without 

adjusting the brakes, (11) when Mr. Warnecke the day shift 

driver took the truck over at 7:00 a.m. the morning of 

Wednesday, February 20 he found the brakes were in need of 

adjustment, (12) that Mr. Johnson was known to drive at 

excessive speeds and to ride the brakes instead of using the 

retarder in order to move his loads faster, (13) that 

foreman Goodman approached Mr. Warnecke and asked him if the 

brakes were adequate at about the time he, Mr. Warnecke, had 

decided to take the truck to the repair shop for a brake 

adjustment, (14) that the inspector Mr. Ryan arrived on the 

mine site around 7:00 a.m., announced he was there to investigate a complaint from the union about the truck and asked 

for the union representative, Mr. Mathes, (15) that when 

told Mr. Mathes was not there Mr. Ryan left the mine site to 

find Mr. Mathes, (16) that when the inspector returned about 

an hour later he found the truck parked at the repair shop, 

awaiting a brake adjustment, (17) that without making a 

static check of the condition of the brakes, the inspector, 

Mr. Ryan, directed the driver Mr. Warnecke to drive him to 

the loading area, (18) that Mr. Ryan directed Mr. Warnecke 

135b 
to ride the brakes .in taking the loaded truck down the steep 

grades, (19) that Mr. Warnecke did this but had to put the 

truck into reverse to stop it at one point because the 

brakes had not been adjusted, and (20) that Mr. Zancauske 

could not persuasively identify the defect that allegedly 

affected the safety of the brakes on the truck. 

These undisputed facts lead me to concur in the applicants' claim that there never was any credible evidence that 

applicants failed to act in a responsible manner to correct 

the claimed defect affecting safety; that the defect claimed 

did not, in fact, affect safety either because it did not 

exist, or if it did, it was not serious enough to affect 

safety; that the retarder and other failsafe mechanisms 

described by Mr. Weigenstein were unaffected by the claimed 

oil leak; that the inspector, the investigator and the 

Secretary's trial counsel knew or should have known that the 

witnesses Warnecke and Weigenstein would testify that as a 

result of the complaint on February 15 corrective action was 

promptly taken; that no amount of corrective action could 

offset the drivers' bad driving habits; that the brakes ran 

hot because the complaining drivers operated the truck with 

a reckless disregard for their own safety; that the failure 

to take statements from the witnesses Warnecke and Weigenstein 

was not justified since both were material witnesses of 

applicants claimed dereliction and, in fact, Mr. Weigenstein 

was charged with the same dereliction. 

Accordingly, I conclude there was (1) no credible 

evidence that applicants knew or should have known the truck 

was being operated with a defect affecting safety, (2) no 

probative evidence that the truck was at any time operated 

with a defect affecting safety, and (3) in the exercise of 

due diligence the Secretary and his duly authorized representatives including his trial counsel knew or should have 

known this. 

In view of the oversights and deficiencies in the 

agency investigation and prosecution of this matter, I find 

there was no substantial justification for the agency to 

believe it could prove the underlying violation or applicants 

participation therein. 

Order 

The premises considered, it is ORDERED that the application for award of attorney fees and expenses be, and hereby 

135'( 
is, GRANTED as to the fees claimed by Mr~ Daly, 0theiwise it 

is DENIED. It is FURTHER ORDERED that, there being no 

objection of record to the amount of fees claimed by Mr. Daly, 

the Department of Labor pay attorne fees in the amount of 

$15,600 to Patrick E. Daly on or b re Tuesday, August 30, 

1983. 

Distribution: 

Jo eph B. Ken 

Administrative 

Patrick E. Daly, Esq., GAF Corporation, 140 West 51 St., New 

York, NY 10020 (Certified Mail) 

J. Phillip Smith, Esq., and Anna L. Wolgast, Esq., Office of 

the Solicitor U.S. Department of Labor, 4015 Wilson Blvd., 

Arlington, VA 22203 (Certified Mail) 

Mike Mathes, United Steelworkers of America, P.O. Box 351, 

Ellington, MO 63638 (Certified Mail) 

ejp 

1358 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SERVTEX MATERIALS COMPANY, 

Respondent 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 · 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 82-31-M 

A.C. No. 41-00059-05013 

Ogden Quarry & Plant Mine 

DECISION 

JUL 2 8 1983 

Appearances: James J. Manzanares, Esq., Office of the Solicitor, 

U. S. Department, Dallas, Texas, 

Before: 

for Petitioner; 

Ed S. Chapline, III, Esq., Dallas, Texas, 

for Respondent. 

Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and Health 

Administration (MSHA), charges respondent, Servtex Materials Company, 

( Servtex), with violating five safety regulations promulgated under the 

Federal Mine Safety and Health Act, 30 U.S.C. § 801 ~seq. (the "Act"). 

After notice to the parties, a hearing on the merits was held in San 

Antonio, Texas on November 30, 1982. 

The parties filed post trial briefs. 

Issues 

1) Is the Secretary estopped from issuing citations for safety 

violations when no citations for the same conditions were issued during 

previous inspections? 

2) If not, did respondent violate the regulations? 

3) If a violation occurred, what penalties are appropriate? 

1358 
Synopsis of the Case 

During an inspection in June 1981 of respondent's New Braunfels 

facility (engaged in crushing limestone), MSHA Inspector Pascual Herrera 

issue~ five citations under the authority of section 104(a) of the 

Act. /The citations charge violations of the Act's safety regulations 

due to an unguarded coupling, insufficiently guarded pulleys, as well as an 

inadequate transformer fence. 

Approximately fifty-three previous inspections of the facility by 

Herrera and other MSHA inspectors had not resulted in the issuance of 

citations for the violations charged in this case (Tr. 71). Petitioner seeks 

an order affirming four citations and proposed civil penalties. Petitioner 

also moved to vacate one of his citations. 

Discussion 

Failure of MSHA to issue citations at previous inspections. 

As a threshold matter Servtex contends the citations are invalid. This 

defense arises from the fact that on 53 prior inspections no citations were 

issued on these conditions. Servtex suggests that Herrera's issuance of 

citations for newly noticed safety violations demonstrates an incorrect use 

of subjective standards and a minimal understanding of the operation and 

function of the machinery involved, Servtex further contends that an 

operator must rely, in part, on the results of previous inspections to 

determine the efficiency of its compliance with safety regulations. 

Servtex's arguments lack merit. The evidence of record does not support 

Servtex. Further, the case law is contrary to that view. Generally, an 

operator's reliance on prior inspections does not estop the Secretary from 

bringing an action on newly discovered safety violations. Midwest Minerals, 

Inc., 3 FMSHRC 251 (January 198l)(ALJ); Missouri Gravel Co., 3 FMSHRC 1465 

(June 198l)(ALJ). Furthermore, Inspector's Herrera's 27 years of mine safety 

experience, and an additional seven and a half years as a MSHA inspector 

hardly suggest lack of knowledge and experience in dealing with mine 

machinery and related safety issues (Tr. 10, 11). 

1/ Section 104(a) provides 1n pertinent part: 

If, upon inspection or investigation, the Secretary or his authorized 

representative believes that an operator of a coal or other mine subject to 

this Act has violated this Act, or any mandatory health or safety standard, 

rule, order, or regulation promulgated pursuant to this Act, he shall, with 

reasonable promptness, issue a citation to the operator. Each citation shall 

be in writing and shall describe with particularity the nature of the 

violation, including a reference to the provision of the Act, standard, rule, 

regulation, or order alleged to have been violated. In addition, the 

citation shall fix a reasonable time for the abatement of the violation. 
The failure of previous inspections to result in the issuance of 

citations for the safety violations charged in this case does not indicate 

that the Servtex facility is in automatic compliance with the appropriate 

safety regulations. It is necessary, then, to examine each of the citations 

issued to determine if any violations occurred. 

Citation 174561 

Inspector Herrera issued this citation for an unguarded coupling on a 

drill at Servtex;s plant. It alleges a violation of Title 30, C.F.R., 

Section 56.14-1 _/(Tr. 17, P2, P6). 

Herrera testified that a six inch coupling connects and lies between the 

V-belt drive shaft and the transmission. While the coupling on the drill is 

only 18 inches from a walkway, it is separated from the walkway by a guard 

for the V-belt drive; the guard is 14 to 15 inches high. The area is further 

enclosed by a hand rail (Tr. 52). 

Petitioner claims that a serious or fatal accident could occur if a 

miner were to become entangled in the coupling due to a fall or in the 

performance" of maintenance duties (Tr. 21). 

In conflict with such testimony, Servtex claims that the coupling was 

enclosed in a box-type guard, and was effectively separated from the walkway 

by the 24 inch V-belt drive guard (Tr. 33). In addition, witness John Faust 

(assistant plant manager) testified that an injury due to the coupling is 

unlikely. The coupling moves only when the transmission is engaged by the 

drill operator in the cab. In addition, the coupling is not serviced or 

repaired while the drill is in operation (Tr. 87, 88). 

I accept MSHA's evidence but a fair reading of the record and a study of 

the drawing (P6) establishes that this coupling was guarded by location. 

Section 30 C.F.R. 56.14-1 only requires guarding when the moving parts "may 

be contacted by persons ... " It follows that when the Secretary charges a 

violation of Section 56.14-1 he must show that the unguarded part may be 

"contacted by persons." Kincheloe & Sons, Inc., 2 FMSHRC 1570 (June 

1980)(ALJ). 

In Applegate Aggregates 2 FMSHRC 2403 (August 1980) I vacated a citation 

charging a violation of Section 56.14-1. In that case the unguarded machine 

part was in a location where it was unlikely that a worker would come in 

contact with it; further, a guard rail prevented ready access to the part; 

in addition, the equipment was shut down when maintenance was performed. 

2/ The cited section, 30 C.F.R. 56.14-1, provides as follows: 

Mandatory. Gears; sprockets; chains; drive, head, tail and 

takeup pulleys; flywheels; couplings; shaft; sawblades; fan 

inlets; and similar exposed moving machine parts which may 

be contacted by persons, and which may cause injury to persons, 

shall be guarded. 

13f)l 
Similar facts exist tn this case. The coupling cited as a safety 

violation is separated from the walkway by both a V-belt drive guard and a 

hand rail, and it is not serviced while the drill is in operation. The 

mandatory regulation was therefore improperly applied. Citation 174561 

should be vacated. 

Citation 174568 

At the commencement of the hearing the Secretary moved to vacate this 

citation (Tr. 7). The motion was granted and the order is formalized in this 

decision (Tr. 8). 

Citation 174569 

This~citation alleges a violation of Title 30, C.F.R., Section 

56.14-3. JI 

The citation was issued for an insufficient guard at the head and tail 

pulley on a reversible conveyor at Servtex's plant. Herrera testi~ied that 

the guard extended eight inches above the pulley's top pinch point. But the 

bottom pinch point was exposed as the pinch point was 3 1/2 feet beneath the 

bottom of the guard. The exposed pinch point was adjacent to a walkway (Tr. 

72, Exhibit P7). 

Herrera stated that both pinch points subjected miners to potential 

dangers. The guard extending above the pulley was felt to be inadequate 

because the conveyor belt was smaller than the pulley, thereby creating an 

exposed pinch point. A person performing service duties or removing debris 

from the top of the conveyor could therefore be caught (Tr. 30). The 

unguarded pinch point on the bottom of the pulley (and adjacent to the 

walkway) exposed miners to potentially serious injuries should they fall or 

reach into the area (Tr. 29). 

Servtex offered evidence that the space between the shaft of the pulley 

and the walkway was a distance of 20 to 24 inches and that the radius of the 

pulley was approximately nine inches (Tr. 89, 100). I find additional 

3/ The cited section 30 C.F.R. § 56.14-3 provides as follows: 

Mandatory. Guards at conveyor-drive, conveyor-head, and 

conveyor-tail pulleys shall extend a distance sufficient to 

prevent a person from accidentally reaching behind the guard 

and becoming caught between the belt and the pulley. 
conflicting testimony offered by Servtex to be unconvincing. 4/ A 

photograph of the pulley, offered by Servtex, does not shed light on the 

dispute: the angle of the photograph and a person's foot effectively obstruct 

the view of both the pulley and the alleged gap in the guard (Ekhibit R8). 

I find from MSHA's evidence that: the bottom pinch point was a~proximately 27 inches below the guard, and 15 inches above the walkway. I I 

therefore accept MSHA's evidence that the bottom pinch point on the-pulley 

was unguarded. The unguarded pinch point, adjacent to a walkway, posed a 

foreseeable hazard to a miner's safety. It was readily accessible to mine~s 

in the normal course of their duties, and was not indirectly guarded by 

location. A previous case has upheld a citation issued for a similar 

condition. Central Pre-Mix Concrete Co., 1 FMSHRC 1424 (September (1979) 

(ALJ). Citation 174569 should be affirmed. 

Citation 174575 

This citation also all6ges a violation of a mandatory safety standard, 

30 C.F.R. Section 56.14-3. / Servtex is charged with failing to provide 

an adequate head pulley guard. 

Inspector Herrera testified that the 4 1/2 foot pulley guard extended 

ten inches above the pinch point created by the pulley and conveyor belt (Tr. 

58, 65). The width of the conveyor belt was smaller than that of the pulfoy, 

creating an exposed area on each end of the pulley of about four inches (Tr. 

34, 35). Such a situation created two pinch points and made the guard less 

effective than it would have been if the conveyor belt and guard were 

directly adjacent to one another (Tr. 29, 34). The pulley was surrounded on 

three sides by a walkway (Tr. 35). Serious injuries could be suffered should 

a miner fall against the exposed part of the pulley, or reach in and be 

caught in the pinch point (Tr. 35). 

4/ Respondent also claims that the bottom of the pulley and the lower pinch 

point extend below the walk way, and that both pinch points were covered by a 

guard (Tr. 89). 

5/ Figures are derived from the following measurements: 

(a) Distance from guard to walkway = 42" 

(b) Distance from shaft of pulley to walkway = 24" 

(c) Radius of pulley = 9" 

(d) Distance between walkway and bottom of pulley (and pinch point) 

= (b)-(c) = 15" 

(e) Distance from bottom of guard and pinch point = (a)-(d) = 27". 

(Transcript at 72, 89, 100, P7). 

6/ The standard is cited in footnote 3. 

1360 
On the other hand, Servtex claims that its pulley guard was adequate. 

It asserts that MSHA Management Letter No. 80-39 requires guards to extend 

only "a distance sufficient to prevent a person from accidentally reaching 

behind the guard· and becoming caught between the belt and the pulley." 

Servtex also argues in its reply brief (page 2) that accidental contact with 

the pinch points is "extremely unlikely" and that deliberate acts of reaching 

over the guard cannot be prevented. 

I disagree with Servtex's construction of the evidence. It is true that 

it is unlikely that a miner would reach behind the guard and be caught in the 

pinch point. But in the unguarded area contact could readily be made. 

Exhibit P8 illustrates this point. A photograph of a pulley guard offered by 

Servtex (Exhibit Rll) does not alter my conclusion, since statements made 

during the hearing suggest that the pulley guard depicted in the photograph 

was not the one cited by Herrera (Tr. 68). 

The Commission case law establishes that where a miner can become entangled in pinch points during the ordinary course of duties then the 

citation should be affirmed. Belcher Mine, Inc., 5 FMSHRC 584 (March 1983) 

(ALJ); Central Pre-Mix Cement Co., 1 FMSHRC 1424 (September 1979)(ALJ). 

Therefore, I accept Herrera's assessment of the hazard involved with the 

head pulley guard. The potential of entanglement in the pinch point, even 

though""extremely unlikely," does exist. Accordingly, Citation 174575 should 

be aff:t;rmed. 

This is an appropriate place to discuss the factual differences between 

Citation 174561 and the remaining guarding citations. In citation 174561: 

Exhibit P6 shows the coupling in this citation to be guarded by location. It 

would virtually be impossible for a miner to be exposed to the hazard of the 

unguarded coupling. On the other hand, exposed pinch points in the other 

citations are not so guarded. In sum, the later violative conditions expose 

a miner in the ordinary course of his work to the hazard of entanglement. 

Citation 174573. 

This citation charges respondent with a violation of Title 30, C.F.R., 

Section 56.12-67, 7_; due to an allegedly inadequate transformer fence. 

The uncontroverted evidence establishes the following facts: 

The fence around the transformer was 6 to 6 1/2 feet high (Tr. 39, 91). 

7/ The section provides as follows: 

Mandatory. Transformers shall be totally enclosed, or shall 

be placed at least 8 feet above the ground, or installed in 

a transformer house, or surrounded by a substantial fence at 

least 6 feet high and at least 3 feet from any energized parts, 

casings, or wirings. 
A "muck pile" had been allowed to accumulate outside the fence, with 

one foot to 18 inches of debris settling against the fence over a distance of 

6 to 8 feet (Tr. 91, 121, P9). 

The foregoing facts establish a violation of Section 56.12-67. The pile 

of debris that had accumulated against the transformer fence effectively 

reduced the fence's height to less than 6 feet. Therefore, Citation 174573 

was properly issued, and it should be affirmed. 

t.:ivil Penalties 

Petitioner proposes the following civil penalties for the three 

citations that are to be affirmed: 

Citation 174569 

174573 

174575 

Total 

$98 

60 

44 

$202 

Section llO(i) [now 30 U.S.C. 820(i)] of the Act sets forth six criteria 

to be considered in determining civil penalties: 

In assessing civil monetary penalties, the Commission shall 

consider the operator's history of previous violations, the 

appropriateness of such penalty to the size of the business of 

the operator charged, whether the operator was negligent, the 

effect on the operator's ability to continue in business, the 

gravity of the violation, and the demonstrated good faith of the 

person charged in attempting to achieve rapid compliance after 

notification of a violation. 

Concerning prior history: The MSHA computer printout indicates that 

Servtex was assessed 22 violations from June 1979 to the beginning of June 

1981 (Exhibit Pl). Fifteen citations were issued during June 1981, four of 

which are at issue in this case (Tr. 15). 

Concerning size: Servtex is a medium-sized operator. The evidence 

indicates that 105 people are employed at Servtex's Ogden Quarry and Plant. 

The number of man-hours worked was approximately 54,605 hours for the first 

quarter of 1981 (Tr. 42, 43). 

Concerning negligence: The violative conditions should have been obvious 

to the operator. 

Concerning the effect on operator's ability to continue in business: 

This is essentially an affirmative issue to be established by the operator. 

Buffalo Mining Co., 2 IBMA 226 (1973). Since no argument was advanced by 

Servtex that payment of the proposed penalties would impair its ability to 

continue in business, I assume that no such adverse affect will be suffered 

through payment of assessed penalties. 

136tJ 
Concerning gravity: The gravity of each violation is moderate. Protective devices had been provided in each instance, but such devices were 

insufficient. 

Concerning good faith: The record establishes that Servtex promptly 

abated the violative conditions. 

After considering all the statutory criteria, I conclude that the 

penalties proposed by petitioner for Citations 174569, 174575, and 174573 are 

appropriate. 

The Solicitor and Servtex's counsel filed detailed briefs which have 

been most helpful in analyzing the record and defining the issues. I have 

reviewed and considered these excellent briefs. However, to the extent they 

are inconsistent with this decision, they are rejected. 

Based on the findings of fact and conclusions of law herein, I enter the 

the following: 

ORDER 

1. Citations 174561 and all penalties therefor are vacated. 

2. Citation 174568 and all penalties therefor are vacated. 

3. Citation 174569 and the proposed penalty of $98 are affirmed. 

4. Citation 174573 and the proposed penalty of $60 are affirmed. 

5. Citation 174575 and the proposed penalty of $44 are affirmed. 

6. Respondent 1.S ordered to pay the sum of $202 within forty (40) 

of the date of this order. 

Distribution: 

James J. Manzanares, Esq., (Certified Mail), Office of the Solicitor 

United States Department of Labor, 555 Griffin Square, Suite 501 

Dallas, Texas 75202 

Mr. Ed S. Chapline, III (Certified Mail), Gifford Hill Corporation 

8435 Stemmons Frwy., P.O. Box 47127 

Dallas, Texas 75247 

/blc 

136() 

days 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUL 2 9 191B 

RAY WARD, DISCRIMINATION PROCEEDING 

Conplainant 

v. 

VOLUNl'EER MINING CORPORATICN, 

Respondent 

Docket No. SE 82-55-D 

BARB CD 81-38 

DECISION 

This proceeding was brought by the Conplainant under section 

105(c)(l) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

801 et~., seeking relief for alleged acts of discrimination. Tre 

case was heard at Knoxville, Tennessee. 

Having considered the contentions of the parties and the record 

as a 'Whole, I find that the preponderance of the reliable, probative, 

and substantial evidence establishes the following: 

FINDINGS OF FACT 

1. At all pertinent tines, Respondent cperated an underground 

coal mine that produced coal for sale or use in or substantially 

affecting interstate conrcerce. 

2. Conplainant was hired at Respondent's mine on CCtober 30, 

1978, as an cperator of a continuous miner, a machine used to extract 

coal, and operated such equipnEnt until April 10, 1981. On that date, 

Conplainant was tenporarily assigned to relieve a roof-bolter 
operator, Paul McKarrey, \\ho left on sick leave. Cooplainant had 

severe stomach pains at that time, because of an ulcerous condition, 

and was also upset by being assigned to run the roof bolter without 

instruction as to the roof control plan. He told his iITIITEdiate 

supervisor that he was leaving the mine to talk to the mine 

superintendent, Everett Davidson, because Canplainant needed to see a 

doctor about his pain. 

3~ He told Davidson that he needed to see a doctor because of 

stomach pains and that he was upset about being assigned to the roof 

bolter without training. Davidson denied him sick leave and told him 

that, as far as Davidson was concerned, Canplainant had quit his job. 

Corrplainant saw a doctor for examination and treatrrent and later that 

day, April 10, reported the job incident to the local off ice of the 

Mine Safety and Health Administration, United States Deparbrent of 

Labor ( MSHA) • 

4. When Corrplainant reported for work the following 

Monday, April 13, and was denied errployrrent, Corrplainant filed a 

discrimination corrplaint with MSHA under section 105(c)(l) of the Act. 

This complaint was settled by an agreerrent to reinstate Corrplainant 

with back wages for 108 hours. Canplainant interpreted the 

agreerrent as a right to be reinstated in his regular position, 

continuous miner operator, but the written agreerrent did not specify a 

position in which he was to be reinstated. 

5. Corrplainant was reinstated on April 29, 1981. His supervisor 

told him that, since McKarrey was still on sick leave, Complainant 

v.uuld be assigned to roof bolter until McKarrey returned, and the 

supervisor estimated that McKarrey v-Duld be back in a few days. 

1368 
McKarrey returned to work in two or three days, but management 

kept Complainant on the roof-bolter job. 

6. On July 10, 1981, Respondent laid off a number of miners, 

including Corrplainant, for the stated reason that the section where 

they v.ere working was being closed and sOIIE tirre would be needed 

before a new section would open. 

7. All of the miners on Corrplainant's shift who v.ere laid off 

v.ere later rehired except Corrplainant, and an additional employee was 

hired after the layoff. The miners on Corrplainant's shift who v.ere 

rehired v.ere: Paul McKarney, rehired on August 3, 1981, Herman 

Carroll, rehired on August 3, 1981, Joe Ward, rehired on August 10, 

1981, and Hoyle West, rehired on August 17, 1981. Bayless Phillips, 

Ca prior errployee), who was not errployed at the tirre of the layoff, 

was hired on August 17, 1981. D.Iring the layoff, Canplainant asked 

Davidson for reinstatement but was not rehired; instead, Davidson told 

him that he could not tell when or if he would be rehired and 

recormended that Corrplainant seek employrrent elsewhere. 

8. The layoff on July 10, 1981, was the only layoff at the mine 

in the tirre Corrplainant was errployed there. The record does not 

indicate whether or not there had been a layoff at the mine before 

Corrplainant's errployrrent. 

9. At all pertinent tirres, Respondent' s employees did not have a 

collective bargaining agreerrent. Respondent paid all non-supervisory 

miners the sarre rate, regardless of position or length of employrrent 

with Respondent. 

10. During the period of Corrplainant's errployrrent by Respondent, 

1368 
until July 10, 1981, Respondent operated two coal-producing sections 

on the day shift and one section on the night shift. 

DISCUSSION 'WITH FURTHER FINDINGS 

Section 105(c)(l) of the Act provides: 

(c) (1) No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal or other mine subject to this 

Act because such miner, representative of miners or applicant 

for employment has filed or made a comP.laint under or related to this Act, including a complaint notifying the operator or 

the operator's agent, or the representative of the miners at 

the coal or other mine of an alleged danger or safety or health 

violation in a coal or other mine, or because such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential transfer under a 

standard published pursuant to section 101 or because such 

miner, representative of miners or applicant for employment 

has instituted or caused to be instituted any proceeding under 

or related to this Act or has testified or is about to testify in 

any such proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on 

behalf of himself or others of any statutory right afforded by 

this Act. 

This section protects a miner from discrimination because of 

safety complaints or his exercise of other rights under the 

statute. 

Corrplainant's complaint to Respondent's mine rnanagerrent on April 

10, 1981, and to MSHA later that day, because of his assignrrent to run 

the roofbolter without adequate training, was a protected activity 

under section 105(c) (1) of the Act. His discrimination complaint on 

April 13, 1981, filed 'with MSHA under section 105(c) (1) of the Act, 

YS.S also a protected activity under that section. 

Complainant's regular job with Respondent, for over 2 1/2 years, 

was a continuous miner operator. He was hired for that position on 

October 30, 1978, and perfonred this skilled position without incident 

or any problem until April 10, 1981. 

His first discrimination corrplaint was settled by 

13'?0 
Respondent's agreerrent to reinstate him with back pay for 108 hours 

and Corrplainant's agreerent to drop the charges. 

Pursuant to this settlerent, he was reinstated on April 29, 1981. 

He was not reinstated in his regular position but was given a 

terrporary assign.ItEnt to relieve Paul McKarcey as roof bolter until 

McKarcey returned from sick leave. Corrplainant' s supervisor, Otis 

Cross, stated that this assign.ItEnt ~uld be only a few days, since 

McKarcey was expected to return to ~rk in a few days. 

The circumstances of the tenporary assign.ItEnt on April 29 raise a 

suspicion of a discriminatory intent to penalize Carplainant because 

of his prior safety and discrimination corrplaints. Respcndent did not 

show a legitimate business reason for this tenporary assign.ItEnt, to 

explain why Corrplainant could not have reasonably been reinstated as a 

continuous miner operator and another errployee assigned to the job of 

roof bolter until McKarrey's return. 

However, without resolving whether the April 29 terrporary 

assign.ItEnt was discriminatory, I conclude that the pennanent 

assign.ItEnt of Corrq;>lainant as a roof bolter helper, on or about May 4, 

1981, w:i.s discriminatory. 

When McKama::z returned in a few days, on or about May 4, 

1981, Respondent did not return Corrplainant to his regular position of 

continuous miner operator but, instead, made him a permanent roof 

bolter helper. I find that this assign.ItEnt was discriminatory, and 

rrotivated by an intention to retaliate against Carplainant because of 

his exercise of his rights under the statute on April 10 and April 13, 

1981. Respondent offered no credible business explantion for its 

assign.ItEnt of Corrplainant as a roof bolter helper after M::Karrey 

1371 
returned, or· its transfer of Dolphus Carroll fran roof bolter to 

continuous miner operator helper, in order to make Corrplainant a roof 

bolter helper. Carroll was not trained as a continuous miner 

operator, but was an experienced roof bolter. The assignrrent of him 

as a continuous miner operator helper was contrary to Res_pondent's 

practice of assigning two qualified continuous miner operators on the 

sane shift, so that they could take turns as miner operator and 

helper in order to achieve the best production. Conplainant was a 

qualified miner operator, and had worked effectively with Joe Ward, 

another qualified miner operator, as a team for over two years and 

nine nonths - rotating with him as operator and helper. The 

disturbance of this assignrrent of the two miner operators, by noving 

Carroll to miner operator helper, displaced Conplainant from his 

regular _position with no showing of a legitimate business reason for 

this job change. I find that the permanent assignrrent of Conplainant 

as a roof bolter operator or helper was discriminatory. In addition, 

I find that Davidson denonstrated a discriminatory intent toward 

Corrplainant by his hostility in not talking to Corrplainant at various 

times when Carplainant greeted him after Corrplainant's reinstaterrent. 

This hostility is consistent with, and is further evidence of, an 

intention by Davidson to discriminate against Conplainant because of 

his prior discrimination corrplaint and safety canplaint. 

The layoff on June 10, 1981, was for the purported reason that 

the section where corrplainant's shift was mining was being closed and 

sorre time was needed before a new section would be opened. This 

decision by Res_pondent was different from past practices, in that 

1372 
Davidson testified that he usually kept a crew on when a section was 

being closed and gave them duties in order to keep their jobs while 

the next section was being prepared for mining. The decision to layoff Corrplainant's shift on July 10 raises a suspicion of a 

discriminatory intent to use the layoff as a rreans of discharging 

Corrplainant. Ho~ver, without resolving whether the layoff was 

discriminatory, I conclude that the decision not to rehire Complainant 

after the layoff was rcotivated by an intention to discriminiate 

against him because of his prior discrimination complaint and safety 

corrplaint. Everyone on Complainant's shift who was laid off was later 

rehired except Complainant, an additional errployee was hired in 

preference to Corrplainant, Corrplainant requested but was denied 

reerrployrrent during the layoff, and Respondent provided no credible, 

legitimate business reason for its failure to rehire Complainant. In 

addition, as discussed above, there was discriminatory treatrrent of 

Corrplainant before the layoff. 

Corrplainant has not rret his burden of proof on the charge that 

Respondent violated section 105(c)(l) by denying him the cpportunity 

to IDrk overtirre after April 29, 1981. His proof raises a suspicion 

of a discriminatory intent to deny him overtirre cpportunities after 

April 29, 19811J, b.lt Complainant did not prove sufficient facts to 

1/ The errployrrent records show that, prior to April 29, 1981, 

Corrplainant IDrked overtirre an average of about one week a rconth but 

h= IDrked no overtirre from the tirre of his reinstaterrent on April 29, 

1981, until his layoff on July 10, 1981; a number of errployees IDrked 

overtirre both before April 29, 1981, and in the period from April 29, 

1981, until July 10, 1981. 
nake a prirna: facie case on this charge. He did not prove either 

Respondent's practice with respect to how overtirce asignnents were 

made or any specific incidents in which Corrplainant requested but was 

denied overtirce assignnents. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over this proceeding. 

2. Respondent violated section 105(c}(l) of the Act by failing 

to assign Corrplainant to his regular position of continuous miner 

operator on or about May 4, 1981, when Paul McKaney returned fran sick 

leave. 

3. Respondent violated section 105 ( c) ( 1) of the Act by 

failing to reerrploy Corrplainant on and after August 3, 1981, when the 

other errployees on layoff v.Bre reerrployed, and on August 17, 1981, 

when Bayless Phillips was errployed. 

4. Corrplainant has not net his burden of proof on the charge 

that Respondent violated section 105(c)(l) of the Act by denying 

Corrplainant the cpportunity to work overtirce after April 29, 1981. 

5. Conplainant is entitled to reinstatement, back pay with 

interest, a reasonable attorney's fee and costs, and such other relief 

as may be deerred equitable and just. 

Proposed findings of fact and conclusions of law inconsistent 

with the above are rejected. 

PENDING A FINAL ORDER 

Jurisdiction of this proceeding is retained by the judge pending 

a final order for relief. Counsel for the parties should confer in an 

effort to stipulate the anounts and other relief due under this 

Decision. Such stipulation will be without prejudice of Respondent's 

1374 
right to seek review of this Decision. Conplainant shall have 10 days 

to file a proposed order, and Respondent shall have 10 days to reply 

to Complainant's proposed order. If necessary, a further hearing 

will be held on issues relevant to relief. 

Distribution Certified Mail: 

-ul;,u.~ ?6iMV~ William Fauver 

Administrative Law Judge 

Dorothy B. Stulberg, Esq., Mostoller and Stulberg, 100 Tulsa Road at 

Illinois Avenue, Oak Ridge, TN 37830 

Joseph H. Van Hook, Esq., Dra~r M, Oliver Springs, TN 37840 

kg 

1375 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 JOL 2 9 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

C F & I STEEL CORPORATION, 

Respondent 

DOCKET NO. WEST 82-184-M 

A.C. No. 48-00144-05010 

Sunrise Mine & Mill 

DECISION 

Appearances: Robert J. Lesnick, Esq., Office of the Solicitor 

U. S. Department of Labor, Denver, Colorado 

for Petitioner; 

Allan R. Cooter, Esq., Pueblo, Colorado 

for Respondent. 

Before: Judge Carlson 

The Secretary of Labor petitions this Cormnission for the affirmance of a 

penalty assessed against C F & I Steel Corporation (CF&I) for the alleged 

violation of 30 C.F.R. § 57.19-124, (1982) a safety regulation promulgated 

under the Federal Mine Safety and Health Act, 30 U.S.C. § 801 ~seq. (1976 

and Supp. 1982). The cited regulation provides as follows: 

Mandatory. Hoist ropes other than those on friction hoists 

shall be cut off at least six (6) feet above the highest 

connection to the conveyance at time intervals not to exceed 

one (1) year unless a shorter time is required by standard 

57.19-126, or by conditions of use. The portion of the rope 

that is cut off sh al 1 be examined by a competent person for 

damage, corrosion, wear and fatigue. 

After notice to the parties a hearing was held on February 2, 1983, in 

Denver, Colorado. The parties stipulated to all the material facts. Certain 

of the stipulations were oral; others were based upon agreement that all 

factual representations contained in the pleadings and supporting documents 

already in the file were true. Both parties submitted post-hearing briefs. 

THE FACTS 

The material facts as revealed by the stipulations may be sunnnarized as 

follows: 

(1) CF&I's Sunrise mine is subject to the coverage of the Act. 

(2) The Sunrise operation is large with an average history of 

citations. 

137b 
(3) The mine hoist, a non-friction hoist, is the type of hoist 

described in 30 C.F.R. § 57.19-124. 

(4) On May· 21, 1981, CF&I filed a petition for modification of the 

application of that standard, seeking to avoid the annual requirement for 

cutting off a six foot length of hoist rope for inspection. 

(5) CF&I sought this modification from the Secretary because the mine 

was shut down on July 13, 1980, after which the hoist was used by eight to 

ten maintenance people with an approximate frequency of five percent of the 

normal operating use. 

(6) The rope was last replaced on June 20, 1980. 

(7) On January 21, 1982, while CF&I's petition for modification was 

pending, a representative of the Secretary inspected the mine and issued a 

citation for violation of 30 C.F.R. § 57.19-124. 

(8) In the year prior to inspection CF&I did not cut and examine the 

rope as required by 30 C.F.R. § 57.19-124. 

(9) At no time prior to the hearing did CF&I file an application for 

interim relief under 30 C.F.R. § 44.16 ~seq. 

(10) On March 18, 1982, CF&I received notice that its petition for 

modification was denied. 

(11) CF&I exercised good faith in abating the violation shortly after 

receiving the inspection citation. 

ISSUE 

Does the pendency of a petition for modification, filed in good faith, 

abrogate or limit the Secretary's authority to issue a valid citation for 

violation of the standard from which the petitioner seeks relief? 

DISCUSSION 

CF&I sought its modification of the hoist rope standard because the 

hoist in question received less-than-normal use and the hoist rope would 

therefore suffer less-than-ordinary wear. In defense against the Secretary's 

charge, CF&I basically argues that it was improper for the Secretary to issue 

the citation for violation of 30 C.F.R. § 57.19-124 because it had a petition 

for modification pending on that very regulation. Because of its good faith 

in pursuing a variance in the application of the standard to the hoist in 

question, and a reasonable expectation that it would ultimately be granted, 

CF&I contends it should not be subject to a citation while a decision on the 

modification request was pending. 

1377 
The difficulty with this argumenl is rrnnifest. Ncith1.'r the Act nor th'~ 

Secretary's regulations relating to m1dificatinris provid~~ f•Jr any s11spension 

l)f the Secretary's enforcement powers or duti~s whil.P. a rnf~re p8tition for 

r;iodification is pendin~. The regulations do pro-..ri.<ir~ an avenue of 1:elicf, 

however, in the form of an application for interi.JT1 rr~li.cf, which may b~ filed 

under 30 C.F.R.. § 44.16. Such :rn application is adjunctive to the original 

p·.~t it ion and opens the way for an admi.nistrat: ivc suspension of enforcement 

pending a final determination on the petition itself. llnfortunAtely, CF&I 

failed to file an applicAtion for interim rr!lief. 

In this present proceeding CF&l suggests that its original petition for 

1n'l•ii.fication is the _equivalent of an interi1n npplicatitrn, or includes one by 

irnplication. The argumi:nt cannot pre'.rai.l. The provi3ions of 30 C.F.R.. 44.16 

;,~rp.1ire extensive speci;;il showings of fact h'~Y'·)llr! those speci fi.ed for a 

netition for modification. Specifically, 30 C.F.R.. ~ 44.16(c) provides: 

Before interim relief i.s granted, the ripplicanr- must clearly 

show that (1) the petition seel<ing modi.fic-'lti0n h:is hcen filed 

in good fA.ith, ;:ind the ;ipplic:i.nt is not 11sing thr> proceedi.:-ig 

solely to postpone or avoid ah!lte1~P.nt; (2) th(~ u~q11ested re1 i.ef will not adversl'l.y affect the heril.th or saf·,ty 0f miners 

in the affected min·~; and (3) t1H~re is a suhstanti;:il likelihood 

that the decision on the merits of the petition for 1nl)<lific:ition 

will he favorable to the applicant. 

According to 30 C.F.R.. ~ !~IL l6(d) these representat:ions M:1st be ser- 011t and 

c:uppor:-ted in the application. T.n addi·~ion to th·~ rnure h11rilr'n~>•)l11~ spe•:ial 

:;!1·T.Jings required, the intP.rim relief 1nc~chnni.s111 providi~s pr<>r:•~cl•.ir.11 safe-

~11:-1rcls t0 insure that the enf1)rcement pow•,!rs '>f tht:> ;,,~crr'tnry "1n~ not 

'1:JS\J€~nded by uni. lateral act ion on tlw p"11·L of 'i r•-~t it i011i :ig party, to the 

I' J ~ s i h 1 e de t r i rn en t of the s !i fe t y of m i ., ~rs . Sec t i on /1 4 . lf.i ( f) :i l lows a ll 

parties three days in r,.,-11ich to respond to thi: int-J~rim :ipplicntion, -'Ind 

Li4 • .l6(h) allows for speedy hearings up•rn any •Jf the is~"1es 1·aised. Thus, the 

r~~g11lat:ions mnke a clear di_stinction h~twc•..!n a P'~tition f0r mnrli.fic::it:ion and 

nn application for temporary relief. The forn11;::r proci:ecls thro1 1gh the various 

prcicedural phases outlined in the Secr•~tary's regulations i.:i a vmy which does 

nr)f: affect the interim enfor.cC'ahility ()f the standard in 'JlH~stion. On the 

other hand, the operator seeking tempnr.ary relief must supplement his 

IT!Oci if icat ion efforts by special showin;~s and must he prcpareJ for a speedy 

h1~aring in which the facts pertaining t.o all issues 1nny be :li red in an 

adversarial setting. Only in this way can there he~ a 1"C"'.Vi•rnahle assuranc~~ 

that the s!lfety or health of 1TJiners wi. l l not he jeopard i?.<'d by a pr.ecipitous 

-1nd unwarranted suspension of the Secr·~tary's cnfor.ce1;ient duties. In short, 

the difference between the petition fnr m()1iifi_cnr.-i.on and the nppli.c::ition for 

interim relief is one of substance, nn1- 1ne1·0 no~rienclat-un~ or f1>rm. For that 

n~asrrn, CF'&l's petition f'Jr mtidificntirrn c.innnt he cnnst"rned tr) cmhndy an 

implied request fur interim relief. 

CF&I plac•~s m11ch empha:>is 11pon it:; ~!O<ld faith :ippn>n1·h t•l the hoist 

rr'Jhlem, and its reasonahle E~xp•~ct.1.on if s11•:r:r~:;s in ir:-s 'Jttest f•Jr a 

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modification. The case for modification doe~ indeed seem strong. These 

factors, however, are simply not material to the issues before me. That CF&I 

may ultimately have been successful cannot affect the outcome here. Its 

miners, the Secretary, and other potential parties in interest were entitled 

to notice of any intent to seek a suspension of the hoist rope standard 

pending final action on the modification petition. That notice was required 

to be in the form of a formal application for interim relief. No such 

application was filed, and that oversight cannot be remedied in this present 

penalty proceeding. 

Similarly, it is not material that the petition for modification was 

prepared pro se. It is likely true that had the company been aided by 

counsel an application would have been filed. Pro se ·status, however, cannot 

transform a petition for modification into an application for interim relief. 

A further matter deserves note. After the hearing, CF&I submitted 

copies of correspondence showing that the company had asked the Secretary for 

further consideration of its modification request in view of MSHA's proposal 

to eliminate the part of the standard which requires cutting of the rope for 

examination. A letter to CF&I's General Superintendent by MSHA's Administrator for Metal & Nonmetal Mines dated March 14, 1983 appears to waive the 

cutting requirement for March 29, 1983. This correspondence cannot influence 

the outcome of this present proceeding. First, it was submitted after the 

factual record was closed, and was accompanied by no motion to reopen the 

record. Second, even if given consideration, MSHA's later action as to 

respondent's 1983 responsibilities does not alter the previously discussed 

legal precepts which govern the resolution of the issue before me. 

PENALTY 

The parties stipulate that if CF&I does not prevail upon the legal issue 

presented here, the $90.00 proposed by the Secretary should be affirmed (Tr. 

4). Since I find the citation valid, and conclude that the $90.00 proposed 

penalty accords with the statutory criteria set out in section llO(i) of the 

Act, CF&I shall be required to pay a civil penalty of $90.00 

ORDER 

CF&I is therefore ordered to pay to the Secretary a civil penalty of 

$90.00 within 30 days of this decision. 

Administrative Law Judge 

Distribution: 

Robert J. Lesnick, Esq., (Certified Mail), Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 

Allan R. Cotter, Esq.,(Certified Mail), P.O. Box 316, Pueblo, Colorado 

81102 

/blc 

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