:MAY 1988 

COMMISSION DECISIONS 

05-12-88 

05-10-88 

05-13-88 

05-13-88 

05-26-88 

Western Fuels-Utah, Inc. (Order) 

Michael W. Brunson 

Youghiogheny & Ohio Coal Company 

Local 2333, UMWA v. Ranger Fuel Corporation 

Rivco Dredging Corporation 

ADMINISTRATIVE LAW JUDGE DECISIONS 

05-02-88 

05-04-88 

05-05-88 

05-10-88 

05-12-88 

05-12-88 

05..;...13-88 

05-13-88 

05-17-88 

05-17-88 

05-18-88 

05-18-88 

05-23-88 

05-25-88 

05-26-88 

05-26-88 

05-31-88 

ORDER 

Otis Elevator Company 

Kenneth B. Miracle 

J & K Construction Company 

Sec. Labor for Jerry D. Aleshire and 

others v. Westmoreland Coal Co. & UMWA 

North American Sand & Gravel Co. 

Sec. Labor for James E. Bowman v. 

Consolidation Coal Company 

Triple B. Corporation 

William G. Binion v. Keystone Coal Co. 

Charles H. Sisk v. Charolais Corp., etc. 

Sec. Labor for William Lee Cook v. Patton 

Rock Products 

Mary M. Ball v. FMC Wyoming & MSHA 

Sec. Labor for Harry Thomas v. Arch of 

Kentucky, Inc. 

H. B. Zachry Company 

Kenneth J. Pedersen v. Darmac Associates 

Cen-Tex Ready Mix Concrete Co. 

Consolidation Coal Company 

Cen-Tex Ready Mix Concrete Co. 

05-20-88 Emery Mining Corporation and/or 

Utah Power & Light Company 

WEST 

SE 

LAKE 

WEVA 

KENT 

86-108-R 

86-40-M 

86-121-R 

86-439-C 

88-23-R 

PENN 87-97 

LAKE 88-44 

WEVA 87-61 

WEVA 84-344-D 

LAKE 88-7-M 

WEVA 88-217-D 

KENT 87-40 

PENN 87-209-D 

KENT 87-212-D 

SE 88-39-DM 

WEST 88-5-DM 

KENT 88-37-D 

CENT 88-29 

PENN 88-58-D 

CENT 88-19-M 

WEVA 88-76 

CENT 87-83-RM 

WEST 87-130-R 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

591 

594 

603 

612 

624 

Pg. 627 

Pg. 640 

Pg. 646 

Pg. 653 

Pg. 660 

Pg. 664 

Pg. 666 

Pg. 6 72 

Pg. 674 

Pg. 6 75 

Pg. 678 

Pg. 679 

Pg. 680 

Pg. 683 

Pg. 684 

Pg. 685 

Pg. 687 

Pg. 689 
MAY 1988 

Review was granted in the following cases during the month of May: 

Charles Conatser v. Red Flame Coal Company, Docket No. KENT 87-168-D. 

(Judge Koutras, March 29, 1988) 

Secretary of Labor, MSHA v. Kaiser Coal Corporation, Docket No. 

WEST 88-131-R. (Judge Melick, April 20, 1988) 

No cases were filed in which review was denied. 
COMMISSION DECISIONS 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

WESTERN FUELS-UTAH, INC. 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

. v. 

WESTERN FUELS-UTAH, INC. 

1730 K STREET NW, 6TH FLOOR· 

WASHINGTON, D.C. 20006 

May 12, 1988 

Docket No. WEST 86-108-R 

Docket No. WEST 86-245 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

ORDER 

BY THE COMMISSION: 

The Commission issued its decision in this matter on March 25, 

1988, affirming the decision of Commission Administrative Law Judge Roy 

J. Maurer, in which the judge concluded Western Fuels-Utah, Inc. 

("Western Fuels") was liable for a violation of a mandatory safety 

standard and assessed a civil penalty of $250 for the violation. 

10 FMSHRC 256 (March 1988). On April 22, 1988, Western Fuels filed a 

petition for review of the Commission's decision in the United States 

Court of Appeals for the District of Columbia Circuit (No. 88-1313). In 

connection with its appeal, Western Fuels has submitted to the 

Commission a motion requesting a stay of the Commission's decision, 

during the pendency of judicial review, insofar as that decision 

requires payment of the $250 civil penalty. See 30 U.S.C. § 816(c); 

Fed. R. App. P. 18. Counsel for the Secretary of Labor has filed an 

opposition to this moti9n, which states in part: 

While a contested civil penalty continues to be 

litigated, the Mine Safety and Health Administration 

Off ice of Assessments routinely suspends any action 

to collect the [civil penalty] monies involved. 

591 
This policy has been and continues to be followed in 

this case. 

Secretary's Opposition at 1. Given the Secretary's representation that 

the Department of Labor will not attempt to collect the civil penalty 

involved in this matter during the pendency of appellate litigation, 

there is no need for a stay of the Connnission's decision. 

Accordingly, upon consideration of the motion and opposition, the 

motion is denied. 

c ,(~ ,,,t4..t,.__-· 

Backley, Connnissioner 

~~d.~-~ foyce A. Doyle, Connnissi6ner 

.LJ 

Lastowka, Connnissioner 

·y /I 'JI ~~ I LLl<L~-i'-/ L. Clair Nelson, Commissioner 

592 
Distribution 

Karl F. Anuta, Esq. 

2120 13th St. 

P.O. Box 1001 

Boulder, Colorado 80306 

Frederick L. Miller, Jr., Esq. 

Jeffery N. Luthi, Esq. 

Duncan, Weinberg, Miller & Pembroke, P.C. 

1615 M Street, N.W. 

Suite 800 

Washington, D.C. 20036 

Linda L. Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Roy Maurer 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

593 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 10, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. SE 86-40-M 

MICHAEL W. BRUNSON 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982)(the "Mine Act" or 

"Act"). The issue presented is whether Michael Brunson, within the 

meaning of section llO(c) of the Mine Act, knowingly authorized a 

violation of 30 C.F.R. § 56.9003. lf Commission Administrative Law 

ll Section llO(c) of the Mine Act states: 

Whenever a corporate operator violates a mandatory 

health or safety standard or knowingly violates or 

fails or refuses to comply with any order issued 

under this [Act] or any order incorporated in a 

final decision issued under this [Act], except an 

order incorporated in a decision issued under 

subsection (a) of this section or section [105(c)] 

of this [Act], any director, officer, or agent of 

such corporation who knowingly authorized, ordered, 

or carried out such violation, failure, or refusal 

shall be subject to the same civil penalties, fines, 

and imprisonment that may be imposed upon a person 

594 
Judge James A. Broderick determined that Michael Brunson, as an agent of 

a corporate mine operator, knowingly authorized a violation of that 

mandatory safety standard. The judge assessed a civil penalty of $300 

against him. 9 FMSHRC 257 (February 1987)(ALJ). We conclude that 

substantial evidence does not support the judge's decision. 

Accordingly, we reverse. 

In January 1985, the Brunson Construction Company~ Inc. ("Brunson 

Construction"), an Alabama corporation, operated two sand and gravel 

pits in Clarke County, Alabama, including Pit No. 4, the site involved 

in this case. Two unsupervised employees, Charles Gwin, the operator of 

a front-end loader, and Dwight Garrick, a laborer, worked at Pit No. 4. 

W.D. Brunson was president of the corporation and, according to Gwin, 

routinely visited Pit No. 4 "to see [if] everything [was] fine and then 

he [would go] out." Tr. 42. W.D. Brunson 1 s son, Michael Brunson, was 

Vice President of Brunson Construction, and was listed on the Department 

of Labor's Mine Safety and Health Administration ("MSHA") legal identity 

report as the company official with overall responsibility for health 

and safety matters. Michael Brunson had never been to Pit No. 4 and had 

visited the company's other pit only a few times. Most of his time was 

spent in the company office at Saraland, Alabama. Tr. 63; Exh. G-1. 

T.J. Johnson, listed on the MSHA report as superintendent in charge of 

safety and health at Pit No. 4, had left the company some months prior 

to January 1985. 

On January 23, 1985, during a regular inspection at Pit No. 4, 

MSHA Inspector Charles A. Bates observed Gwin seated in the front-end 

loader with the motor running. The inspector joined Gwin in the cab and 

proceeded to test the loader's brakes on level ground and inclines. 

Having determined that the brakes were not holding due to leaks in the 

air line and in the left front wheel brake booster, the inspector issued 

a combined section 104(a) citation/section 107(a) imminent danger withdrawal order, 30 U.S.C. §§ 814(a) & 817(a), alleging a violation of 30 

C.F.R. § 56.9003. (Although the citation/order stated that it had been 

issued to Michael Brunson, it was actually issued to Gwin. Tr. 22-23; 

Exh. G-2.) Repairs to the brakes were made, and the citation/order was 

terminated on February 11, 1985. 

Brunson Construction subsequently paid a civil penalty of $500 

proposed by the Secretary of Labor for the violation of 30 C.F.R. 

§ 56.9003. On February 25, 1986, the Secretary, pursuant to section 

llO(c) of the Mine Act, filed a petition for assessment of an individual 

civil penalty against Michael Brunson, alleging that, as an agent of the 

under subsections (a) and (d) of this section. 

30 U.S.C. § 820(c). 

30 C.F.R. § 56.9003 provides: 

Mobile equipment brakes: 

Powered mobile equipment shall be provided with 

adequate brakes. 

595 
corporate mine operator, he had knowingly authorized, ordered, or 

carried out the violation of section 56.9003. 

At the hearing in this matter, Michael Brunson represented 

himself. ~/ The Secretary's principal witness at the hearing was Gwin, 

upon whose testimony the judge based his findings of fact. Gwin 

initially testified that he had not reported any brake problem to "Mike 

Brunson" but had told "Mr. Brunson" of "a slight leak in the brakes" 

either a long time before or at least four or five days prior to 

issuance of the citation/order. Tr. 35. Judge Broderick asked Gwin to 

which of the Brunsons he referred. In answer, Gwin repeated several 

times that he meant W.D. Brunson. Tr. 35-36. 

Counsel for the Secretary then asked for "a moment" and the 

hearing went off the record. When the record reopened -- without 

explanation as to what had transpired while off the record -- Gwin 

testified that after the citation and innninent danger order had been 

issued, he telephoned Michael Brunson at the company office to inform 

him of MSHA's actions. Tr. 36. 

The following exchange among counsel for the Secretary, Judge 

Broderick and Gwin then occurred: 

Q. Do you remember telling [MSHA Special Investigator] Bob Everett that approximately one week 

before [MSHA Inspector] Charlie Bates got there that 

you reported to the boss man, Mr. Mike Brunson, that 

the brakes were bad? 

A. I can't recall that right now. It was a week, 

you said, before then? 

Q. Approximately a week before Charlie Bates got 

there that you reported the brakes going bad to Mr. 

Michael Brunson, your "boss man" as you called him? 

A. I believe I told him, I do remember that now. I 

told him, I did report it to Mr. Brunson, Mr. Mike, 

yes, I did. 

Q. Mr. Mike, you mean this man right here? 

A. Yes, sir. Yes, sir. That was a week, I think, 

before then. 

JUDGE BRODERICK: Before the order was issued? 

~/ Michael Brunson did not contest the violation of section 56.9003. 

The only question before us is whether Michael Brunson knowingly 

authorized the violation. 

596 
Tr. 37. 

THE WITNESS: Yes. Was going bad, I didn't say 

they was bad. 

On cross-examination by Michael Brunson, Gwin testified that he 

had told W.D. Brunson that, despite the leak, the brakes were holding. 

Tr. 40. He also stated that the loader's brakes were working when he 

started work on the day that the violation was cited, but that they were 

not holding when Inspector Bates examined them later that day. Tr. 40. 

When Gwin was asked again by the judge whether he had informed 

W.D. or Michael Brunson of the brake problem, he again responded that he 

had told "Mr. Brunson" of the brake leak. Tr. 43. Gwin also stated he 

had informed "Mr. Brunson" that there was no danger at that time, and 

had been told that "if there was any danger to shut the machine down and 

as soon as he can [Mr. Brunson was] going to get the mechanic up there 

to check it out •••• 11 Tr. 43. Asked again by the judge whether he had 

talked with Michael Brunson, Gwin answered: "I had talked to Mr. I 

believe I had talked -- I can't recall but I believe I had talked to Mr. 

Mike along about the same time. 11 Tr. 43. In answer to a further 

question, Gwin indicated that he had called Michael Brunson after 

talking with W.D. Brunson; the date of this later telephone conversation 

was not established. Tr. 43-44. Gwin also testified that he could "not 

recall" just what he had said to Michael Brunson but had told him that 

the brakes were leaking yet holding, and had been instructed as follows: 

"If the brakes is bad, Charlie, make sure you shut the machine down. 11 

Tr. 44. Lastly, Gwin testified that company instructions to him had 

always been to shut down equipment if there was any danger. Tr. 48. 

Michael Brunson, under questioning by the judge, unequivocally 

stated that he had not been informed by Gwin of any brake problem prior 

to the issuance of the citation/order on January 23, 1985, and that his 

father had not reported any such problem to him. Tr. 60-61, 62, 66. 

The administrative law judge found that Gwin's testimony established that Gwin knew of the leak in the brakes and that he had reported 

that condition to the company mechanic and to W.D. Brunson. 9 FMSHRC at 

258. The judge summarized Gwin 1 s testimony concerning Michael Brunson 

as follows: 

[Gwin's] testimony concerning when he reported the 

brake problem to Respondent Michael Brunson was 

contradictory, but he finally stated that he told 

Michael Brunson about one week before the order was 

issued that the brakes were going bad. Respondent 

told him if the brakes were bad to shut down the 

machine. Gwin replied that the brakes had a leak 

but were holding. 

Id. The judge "accepted as factual the testimony of Charles Gwin" that 

he had told Michael Brunson about a week before the citation/order was 

issued that the brakes on the loader "were going bad, 11 i.e., were not 

adequate. 9 FMSHRC at 259. Also, it is undisputed and the judge found 

597 
that Michael Brunson "took no action to have the brakes repaired until 

after the order was issued." 9 FMSHRC at 258. Citing Secretary v. 

Kenny Richardson, 3 FMSHRC 8, 16 (January 1981), aff'd, 689 F.2d 632 

(6th Cir. 1982), cert. denied, 461 U.S. 928 (1983), the judge concluded 

that "[Michael Br~n] knew or had reason to know that the brakes were 

not adequate" and "knowingly permitted the violation of 30 C.F.R. 

§ 56.9003. 11 9 FMSHRC at 259. The judge assessed a civil penalty of 

$300 against Michael Brunson. Id. 

We granted Michael Brunson's petition for discretionary review, 

which was prepared without assistance of counsel. On review, he 

challenges the judge's factual findings. He contends that Gwin did not 

inform him of the condition of the loader's brakes until January 23, 

1985, after issuance of the citation/order, and that he had left 

standing instructions with the company's equipment operators to shut 

down immediately any equipment with insufficient brakes. After carefully examining the entire record, we conclude that Gwin's testimony 

does not constitute substantial evidence in support of the judge's key 

finding that Michael Brunson was informed of a problem with the loader's 

brakes prior to issuance of the citation/ order. Even if we were to 

affirm this finding, we conclude that Gwin's account of the substance of 

these communications is insufficient to establish that Michael Brunson 

knowingly authorized a violation of the cited standard within the 

meaning of section llO(c) of the Act. 

The Commission has held previously that the proper legal inquiry 

for purposes of determining corporate agent liability under section 

llO(c) of the Act is whether the corporate agent "knew or had reason to 

know" of a violative condition. Secretary v. Roy Glenn, 6 FMSHRC 1583, 

1586 (July 1984), citing Kenny Richardson, supra, 3 FMSHRC at 16. In 

Kenny Richardson, the Commission stated: 

If a person in a position to protect safety and 

health fails to act on the basis of information that 

gives him knowledge or reason to know of the 

existence of a violative condition, he has acted 

knowingly and in a manner contrary to the remedial 

nature of the statute. 

3 FMSHRC at 16. The Commission has applied a similar test in situations 

in which a violation of a mandatory standard may not exist at the time 

of the corporate agent's failure to act but does occur subsequent to 

such failure. In that context, the Commission has held that the agent 

acts "knowingly" in violation of section llO(c) "when, based upon facts 

available to him, he either knew or had reason to know that a violative 

condition would occur, but he failed to take appropriate preventive 

steps." Roy Glenn, supra, 6 FMSHRC at 1586. 

Within the foregoing framework, we must determine whether 

substantial evidence supports the administrative law judge's findings. 

30 U.S.C. § 823(d)(2)(A)(ii). As we have consistently recognized, the 

term "substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." See, ~· 

Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1137 (May 1982) guoting 

598 
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). While we do 

not lightly overturn a judge's factual findings and credibility 

resolutions (~., Hall v. Clinchfield Coal Co., 8 FMSHRC 1624, 1629-30 

(November 1986)), neither are we bound to affirm such determinations if 

only slight or dubious evidence is present to support them. See,~., 

Krispy Kreeme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 

1984); Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th 

Cir. 1980). We are guided by the settled principle that in reviewing 

the whole record, an appellate tribunal must also consider anything that 

"fairly detracts" from the weight of the evidence that may be considered 

as supporting a challenged finding. Universal Camera Corp. v. NLRB, 340 

U.S. 474, 487 (1951). 

Here, the judge's material finding is that Gwin informed Michael 

Brunson approximately one week prior to the issuance of the citation/ 

order on January 23, 1985, that there was a problem with the loader's 

brakes. This is the only basis upon which it has been claimed throughout this proceeding that Michael Brunson "knew or had reason to know" of 

a violative condition. Our review of the record convinces us that 

Gwin's testimony concerning this alleged conversation with Michael 

Brunson is too slender a reed. As the judge himself acknowledged 

(9 FMSHRC at 259), Gwin's testimony is contradictory. We go further: 

the testimony in question is also confusing, unclear, and ambiguous and 

it does not constitute substantial evidence. 

As noted, on direct examination by the Secretary's counsel, Gwin 

initially stated that he had not reported the brake problem to Michael 

Brunson, but rather had spoken with "Mr. Brunson." .Tr. 35. If anything 

emerges with some clarity from Gwin's account, it is that he used the 

name "Mr. Brunson" to refer to W.D. Brunson, Michael Brunson's father. 

After the judge intervened to ask Gwin to which Brunson he referred, 

Gwin confirmed several times that he meant W.D. Brunson. Tr. 31-36. 

Counsel then asked "for a moment," and the hearing went off the record. 

The transcript contains no explanation as to why government counsel 

interrupted his direct examination or what transpired while the hearing 

was off the record. When the hearing resumed, Gwin testified that he 

had called "my boss man here, Mike Brunson," after Inspector Bates had 

issued the order. Tr. 36. He next replied to counsel that he could not 

recall telling an MSHA special investigator, Robert Everett, that he had 

reported the brake problem to Michael Brunson about a week prior to 

January 23, 1985. Tr. 37.· At this juncture, counsel reiterated the 

same leading question as to whether Gwin had spoken with Michael Brunson 

prior to January 23 and Gwin replied, "I believe I told him, I do 

remember that now," and repeated "Yes, sir. Yes, sir. That was a week, 

I think, before then." Tr. 37. However, when the judge next sought to 

elicit clarification as to the Brunson with whom Gwin had spoken, Gwin 

yet again referred to "Mr. Brunson" -- not "Mr. Mike" or "Michael 

Brunson." Tr. 43. The final attempted clarification resulted in Gwin's 

answer that he "can't recall" but "believe[d]" that he had talked with 

Michael Brunson "along about the same time," or perhaps after, he had 

spoken to W.D. Brunson. Tr. 43-44. The exact date or proper 

chronological sequence of this conversation in relation to MSHA's 

enforcement actions on January 23 was not established. 

599 
Considered as a whole, we conclude that this testimony does not 

supply adequate or reasonable support for the judge's finding that Gwin 

informed Michael Brunson of a brake problem before January 23, 1985. 

Nor do we find Gwin's testimony to be corroborated by that of Inspector 

Bates, who issued the citation/order, or by Special Investigator 

Everett, whose investigation led to the institution of the section 

llO(c) proceeding against Michael Brunson. In relevant part, Bates 

testified that Michael Brunson was apparently Gwin's only boss -- an 

inaccurate statement, given the uncontroverted evidence of W.D. 

Brunson's role at Pit No. 4. Special Investigator Everett testified 

that when he interviewed Gwin, Gwin told him that he had informed both 

Brunsons of the brake problem prior to the issuance of the citation/ 

order. Tr. 51-52. However, Gwin stated on direct examination that he 

could not recall this conversation. Tr. 37. Indeed, Everett's special 

investigation appears to have been based in large part on his assumption 

that because Michael Brunson was the company safety and health official, 

he must have known of the brake problem and the continuing operation of 

the loader by Gwin at Pit No. 4. Tr. 52, 68. 

Under these circumstances, we hold that substantial evidence does 

not support the judge's finding that Gwin informed Michael Brunson prior 

to January 23 of a brake problem and that there is no basis in the 

record for concluding that Michael Brunson "knew or had reason to know" 

of a violative condition involving the loader's brakes. This conclusion 

is sufficient to dispose of this case. We further hold, however, that 

even if the judge's finding that Gwin had spoken to Michael Brunson 

about the brakes prior to January 23 were affirmed, the substance of the 

communications as testified to by Gwin is insufficient as a matter of 

law to show that he knowingly authorized a violation of section 56.9003 

within the meaning of section llO(c). 

Under the principles of Kenny Richardson and Roy Glenn, supra, in 

order to establish Michael Brunson's liability under section llO(c), the 

Secretary was obligated to prove that Michael Brunson knew of the 

violation or possible future violation of section 56.9003 but failed to 

take appropriate corrective or preventive steps. Section 56.9003 states 

that mobile equipment shall be provided with "adequate" brakes. Gwin 

testified that in his conversations with management about the brakes he 

gave assurances that the brakes were holding and that there was no 

danger. Tr. 34-35, 37, 40, 43, 44. In fact, Gwin testified that on 

January 23, the brakes were holding prior to the inspection but had 

"softened" because he was operating the loader in water, and that prior 

to the inspection he was unaware of any leak in the line between the 

tank and the air compressor. Tr. 44. These communications to 

~anagement failed to provide clear notification that the brakes were not 

adequate. 

More importantly, Gwin testified repeatedly that when he informed 

management about the brakes, he was told to "shut the machine down" if 

the brakes were bad. Tr. 43-44. On cross-examination, Gwin stated that 

company instructions to him had always been, "If there's any danger, 

shut it down." Tr. 48. These instructions manifest managerial 

directions to Gwin that the loader was not to be used if the brakes were 

inadequate. Considered in conjunction with Gwin's ambiguous communi600 
cations, the instructions that he received do not provide the basis 

necessary to support a finding that Michael Brunson knowingly authorized 

a violation of 30 C.F.R. § 56.9003. 

Accordingly, we reverse the judge's decision, vacate the civil 

penalty, and dismiss the Secretary's petition for civil penalty. 

~ ~I/£,,Cdt::/ Richard V. Backley, Commissioner ~~ 

~e~~&0 

L. Clair Nelson, Commissioner 

601 
Distribution 

Michael W. Brunson 

Brunson Construction Co., Inc. 

35 Station Street 

Saraland, Alabama 36571 

Vicki Shteir-Dunn, Esq. 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

602 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 13, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket Nos. LAKE 86-121-R 

LAKE 87-9 

YOUGHIOGHENY & OHIO COAL COMPANY 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Conunissioners 

DECISION 

BY THE COMMISSION: 

In this consolidated contest and civil penalty proceeding arising 

under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et. seq. (1982)("Mine Act" or "Act"), two issues are presented: (1) 

Whether Connnission Administrative Law Judge Gary Melick erred in 

concluding that the violation cited in a withdrawal order issued 

pursuant to section 104(d)(l) of the Mine Act was not of such nature as 

could significantly and substantially contribute to the cause and effect 

of a mine safety hazard; and (2) whether the judge erred in modifying 

the withdrawal order to a citation issued pursuant to section 104(a) of 

the Act solely because the violation was not of a significant and 

substantial nature. l/ We affirm the judge's finding that the violation 

l/ Section 104(d)(l) states: 

If, upon any inspection of a coal or other mine, 

an authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds 

that, while the conditions created by such violation 

do not cause imminent danger, such violation is of 

such nature as could significantly and substantially 

contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds 

such violation to be caused by an unwarrantable 

failure of such operator to comply with such 

mandatory health or safety standards, he shall 

include such finding in any citation given to the 

603 
did not significantly and substantially contribute to the cause and 

effect of a mine safety hazard. In addition, we hold that such a 

"significant and substantial" finding is not a prerequisite for the 

issuance of a section 104(d)(l) order of withdrawal. Accordingly, we 

reverse the judge's modification of the withdrawal order and remand this 

matter to the judge for further proceedings. 

Youghiogheny and Ohio Coal Company ( 11Y&011 ) operates the Nelms No. 

2 Mine, an underground coal mine located in Harrison County, Ohio. On 

August 1, 1986, Y&O was in the process of restarting mining inby the 

last open crosscut in the main north section of the mine. Y&O section 

foreman John Slates requested that the haulage road leading to the last 

open crosscut be cleaned of coal and other debris. The roof of the 

haulage road was fully and properly supported with resin-grouted roof 

bolts spaced on four-foot centers. David Parrish, a qualified scoop 

operator, offered to clean the road using a scoop. 

Parrish's electrically powered, self-propelled scoop was not 

equipped with a canopy. After operating the scoop for about 45 minutes, 

Parrish needed to dump some refuse and waste material ("gob") left from 

previous mining. Parrish could not take the gob to the feeder because a 

buggy and another scoop were in the way. Pursuant to instructions from 

foreman Slates, Parrish proceeded to dump the gob at a beltline located 

inby the last open crosscut. After Parrish dumped the gob, Larry Ward, 

a union safety committeeman at the mine, alerted Parrish to the fact 

that it was a violation of a mandatory safety standard to operate the 

scoop without a canopy in the beltline area where Parrish had dumped the 

gob. Ward then discussed the situation with Slates, who agreed to have 

the scoop removed from that area. 

On August 4, 1986, Department of Labor Mine Safety and Health 

Administration ("MSHA") Inspector Ervin Roy Dean was at the mine 

conducting an inspection pursuant to section 103(i) of the Act, 30 

U.S.C. § 813(i). While on this inspection, Dean received a request from 

Ward, pursuant to section 103(g)(l) of the Act, to conduct an immediate 

inspection at the mine regarding Parrish's operation of the scoop inby 

operator under this [Act]. If, during the same 

inspection or any subsequent inspection of such mine 

within 90 days after the issuance of such citation, 

an authorized representative of the Secretary finds 

another violation of any mandatory health or safety 

standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order requiring 

the operator to cause all persons in the area 

affected by such violation, except those persons 

referred to in subsection (c) to be withdrawn from, 

and to be prohibited from entering, such area until 

an authorized representative of the Secretary 

determines that such violation has been abated. 

30 U.S.C. § 814(d)(l) (emphasis added). 

604 
the last open crosscut. ~/ In response to this request, Dean went to 

the main north section and examined the area in question. Dean 

determined that the area had a mining height of 62 inches and concluded 

that operation of the scoop in that area without a canopy violated 30 

C.F.R. § 75.1710-l(a)(2), which requires that all self-propelled 

electric face equipment operated in the active workings of mines having 

mining heights of 60 inches or more be equipped with substantially 

constructed canopies or cabs. lf Dean issued to Y&O an order of 

withdrawal that required Y&O to refrain from using the scoop in the area 

until the scoop was provided with a substantially constructed canopy. 

Dean issued the order pursuant to section 104(d)(l) of the Act because 

he found that Slates authorized Parrish to operate the scoop in the area 

at issue even though Slates knew the scoop did not have a canopy and 

knew that a canopy was required. Dean found that Slates' actions 

constituted an unwarrantable failure to comply with the standard. (The 

parties stipulated at the hearing that a preceding valid citation issued 

pursuant to section 104(d)(l) was in existence when Dean issued the 

section 104(d)(l) order. Tr. 6.) Dean also found that the violation 

significantly and substantially contributed to the cause and effect of a 

mine safety hazard. 

Y&O contested the validity of the section 104(d)(l) order as well 

as the Secretary's proposed civil penalty for the violation of section 

75.1710-l(a)(2). In its notice of contest of the order of withdrawal, 

2/ Section 103(g)(l) of the Act provides in part that a miners' 

;epresentative may obtain an "immediate inspection" of a mine by MSHA 

whenever the representative "has reasonable grounds to believe that a 

violation of this [Act] or a mandatory health or safety standard 

exists •.•• " 30 U.S.C. § 813(g)(l). 

lf In relevant part, 30 C.F.R. § 75.1710-l(a)(2) provides: 

(a) Except as provided in paragraph (f) of this 

section, all self-propelled electric face equipment, 

including shuttle cars, which is employed in the 

active workings of each underground coal mine on and 

after January 1, 1973, shall, in accordance with the 

schedule of time specified in paragraphs (a)(l), 

(2), (3), (4), (5), and (6) of this section, be 

equipped with substantially constructed canopies or 

cabs, located and installed in such a manner that 

when the operator is at the operating controls of 

such equipment, he shall be protected from falls of 

roof, face, or rib, or from rib and face rolls. The 

requirements of this paragraph (a) shall be met as 

follows: 

* * * * 

(2) On and after July 1, 1974~ in coal mines having 

mining heights of 60 inches or more, but less than 

72 inches. 

605 
Y&O conceded that it had violated section 75.1710-l(a)(2) but argued 

that 11 [t]he·facts surrounding the issuance of [the] order do not meet 

the requirements for unwarrantable failure. 11 At the hearing, Y&O also 

asserted that during a section 103(g)(l) inspection it is improper for 

an inspector to cite a violation that has occurred in the past. 

In his decision the judge found it unnecessary to address Y&O's 

section 103(g)(l) argument due to his conclusion that the order of 

withdrawal was otherwise deficient. 9 FMSHRC at 1066. The judge found 

that because the Secretary did not prove that the violation significantly and substantially contributed to the cause of a mine safety 

hazard, the order must fail under section 104(d)(l). Accordingly, the 

judge modified the order to a section 104(a) citation. 30 U.S.C. § 

814(a). The judge made no finding as to whether the violation was the 

result of Y&O's unwarrantable failure to comply with the cited standard, 

but found that the violation was the result of "gross operator 

negligence" and assessed a civil penalty of $400. 9 FMSHRC at 1067. ~/ 

We granted the Secretary's petition for discretionary review of 

the judge's decision. The Secretary asserts that, contrary to the 

judge's decision, the evidence of record establishes that the violation 

was of a significant and substantial nature. In addition, the Secretary 

argues that the judge erred by modifying the section 104(d)(l) 

withdrawal order to a section 104(a) citation,on the basis of his 

conclusion that the violation did not significantly and substantially 

contribute to the cause and effect of a mine safety hazard. 2/ 

The first issue is whether the judge erred in concluding that the 

violation was not of a significant and substantial nature. The judge 

found that the Secretary had not "met the requisite burden of proof for 

establishing the [violation] was significant and substantial." 9 

FMSHRC at 1067. Because we find the judge's finding to be supported by 

substantial evidence, we affirm. 

A violation is properly designated as being of a significant and 

substantial nature "if, based on the particular facts surrounding that 

~/ ri:'he Mine Act authorizes the Conunission to make an independent 

penalty assessment based upon the criteria set forth in section llO(i) 

of the Act. 30 U.S.C. § 820(i). See, e.g., Black Diamond Coal Mining 

Co., 7 FMSHRC 1117, 1121 (August 1985). One of the statutory criteria 

upon which the assessment of a civil penalty is based is "whether the 

operator was negligent." 30 U.S.C. § 820(i). The Conunission has 

recognized thac the penalty criterion of negligence and an inspector's 

finding of unwarrantable failure made pursuant to section 104(d) of the 

Act are not identical, although frequently they are based upon the same 

or similar factual circumstances. Quinland Coals, Inc., 9 FMSHRC 1614, 

1622. (September 1987). 

21 Before the judge, however, the Secretary asserted that a 

significant and substantial finding was a prerequisite for the issuance 

of a section 104(d)(l) order, and the inspector testified to the same 

effect. S. Post-Hearing Br. 8; Tr. 18. 

606 
violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably 

serious nature." Cement Division, National Gypsum, 3 FMSHRC at 822, 825 

(April 1981); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 677 (April 

1987); see also Consolidation Coal Co. v. FMSHRC, 824 F.2d 1071, 1078-79 

(D.C. Cir. 1987). In Mathies Coal Co., 6 FMSHRC at 1, 3-4 (January 

1984) the Commission explained: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard -- that is, a measure of danger to safety 

contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will 

result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably 

serious nature. 

The third element of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard contributed to will 

result in an event in which there is an injury." U.S. Steel Mining 

Co.,Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, 

in accordance with the language of section 104(d)(l), it is the 

contribution of a violation to the cause and effect of a hazard that 

must be significant and substantial. 6 FMSHRC at 1836. Further, the 

violation itself "must be evaluated in terms of continued normal mining 

operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 

1984). 

In the present case, there is no dispute as to the fact of 

violation or that the discrete safety hazard contributed to by the 

violation was the danger posed to the scoop operator by the lack of a 

canopy in the event of a roof fall. Additionally, there is no dispute 

that any injury resulting from the roof fall would likely be serious. 

The chief issue, therefore, is whether there was a reasonable likelihood 

of a roof fall. 

As noted above, the significant and substantial nature of a 

violation must be determined "based on the particular facts surrounding 

the violation." National Gypsum, supra, 3 FMSHRC at 825. The 

particular facts surrounding the violation at issue support a finding 

that a roof fall was not reasonably likely to occur. It is undisputed 

that while operating the scoop in the area of the violation, Parrish was 

under roof supported with resin-grouted rods on centers of four-feet or 

less at all times. Although the inspector stated that the roof was 

"shaly" and had been given a chance to "work" while the area was being 

rehabilitated, the Secretary does not argue nor imply that the roof 

support in the area was out of compliance with the mine's MSHA-approved 

roof control plan or was not adequately supported as required by 30 

C.F.R. § 75.200. Because the particular facts surrounding this 

violation indicate that the roof was properly and adequately supported, 

the judge correctly accorded little weight to the general rationale of 

607 
the inspector that "most roof falls occur" within 25 feet of the face --

a zone in which the scoop was operated. 9 FMSHRC at 1067. 

In sum, given the undisputed fact that the scoop was operated at 

all times under supported roof, and the lack of evidence to establish a 

reasonable likelihood of a roof fall in the area involved, we conclude 

that substantial evidence supports the judge's finding that this 

violation was not of a significant and substantial nature. Compare 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-13 (December 1987). 

We now turn to the issue of whether the judge erred by modifying 

the section 104(d)(l) withdrawal order to a section 104(a) citation. We 

agree with the Secretary's argument on review that the basis of the 

judge's modification was erroneous. The statutory language of section 

104(d)( 1) expressly makes a significant and substantial finding a 

prerequisite for the issuance of a section 104(d)(l) citation. There 

is, however, no statutory requirement that the inspector base a section 

104(d)(l) order upon a finding that the violation significantly and 

substantially contributes to the cause and effect of a mine safety or 

health hazard. Rather, the plain language of section 104(d)(l) 

establishes three prerequisites for the issuance of a section 104(d)(l) 

withdrawal order: (1) an underlying section 104(d)(l) citation; (2) a 

violation of a mandatory health or safety standard found within 90 days 

after the issuance of the section 104(d)(l) citation; and (3) a finding 

by the inspector that the violation was "caused by an unwarrantable 

failure of [the) operator to .•• comply." See n.1 supra. 

This construction is confirmed by judicial precedent and 

legislative history. Section 104(d)(l) of the Mine Act was carried over 

without substantive change from section 104(c)(l) of the Federal Coal 

Mine Health and Safety Act of 1969. 30 U.S.C. § 814(c)(l) (1976) 

(amended 1977). In UMWA v. Kleppe, 532 F.2d 1403 (D.C. Cir. 1976), 

cert. denied sub nom. Bituminous Coal Operators' Assn., Inc. v. Kleppe, 

429 U.S. 858 (1976), the United States Court of Appeals for the District 

of Columbia Circuit addressed the issue of whether a significant and 

substantial finding was a "prerequisite to be met before a withdrawal 

order may issue pursuant to section [104(c)(l)J" of the Coal Act. 532 

F.2d at 1405. £/ After reviewing the language of section 104(c)(l) and 

the legislative history of the section, the court concluded: "The 

statute and the legislative history are clear. There is no [significant 

and substantial finding) required to be met before a section [104(c)(l)] 

withdrawal order may properly issue. 11 532 F.2d at 1407. The Mine Act's 

legislative history indicates no Congressional intent to change this 

interpretation when enacting section 104(d)(l). S. Rep. No. 181, 95th 

Cong., 1st Sess. 30-31 (1977), reprinted in Senate Subcommittee on 

£/ The court in Kleppe referred to the significant and substantial 

finding requirement of section 104(c)(l) as the section's "gravity 

criterion." It is clear that the phrase "gravity criterion" is the 

court's shorthand for the statutory language of section 104(c)(l) that 

the violation be "of such nature as could significantly and 

substantially contribute to the cause and effect of a mine safety or 

health hazard." 532 F.2d at 1405. 

608 
Labor, Committee on Human Resources, 95th Cong., 2nd Sess., Legislative 

History of the Federal Mine Safety and Health Act of 1977, at 618-19 

(1978). 

This Commission has, on numerous occasions, addressed the 

statutory prerequisites for the issuance of sanctions pursuant to 

section 104(d) and has never held nor implied that a significant and 

substantial finding is required to sustain a section 104(d)(l) order. 

See United States Steel Corp., 6 FMSHRC 1908, 1915 n.3 (August 1984); 

see also Nacco Mining Co., 9 FMSHRC 1541, 1545 (September 1987), pet. 

for review filed, No. 88-1053 (D.C. Cir. January 27, 1988). 

Accordingly, we hold that a "significant and substantial" finding is not 

a prerequisite for the issuance of a section 104(d)(l) order. 

Since the judge ruled in error that a significant and substantial 

finding was necessary to sustain a section 104(d)(l) order, he did not 

reach Y&O's contention that the violation of section 75.1710-l(a)(2) was 

not the result of its unwarrantable failure to comply with that 

mandatory safety standard. We remand this matter in order that the 

judge may rule on this issue and re-examine the penalty in light of that 

ruling. Compare Youghiogheny & Ohio Coal Co., supra, 9 FMSHP..C at 

2003. Jj 

If On remand it is unnecessary for the judge to consider Y&O's 

assertion that the violation was invalidly cited because the violative 

condition was no longer in existence when cited by the inspector during 

an inspection conducted pursuant to section 103(g)(l) of the Act. 30 

U.S.C. § 813(g)(l). Following issuance of the judge's decision, the 

Commission held (Chairman Ford, dissenting) that a section 104(d) 

sanction may be based upon a prior violation cited during a section 

103(g)(l) inspection. Nacco Mining Co., supra. See also Emerald Mines 

Corp., 9 FMSHRC 1590 (September 1987), pet. for review filed, No. 87-

1816 (D.C. Cir. December 23, 1987). 

609 
Accordingly, we affirm the judge 1 s finding that the violation was 

not of a significant and substantial nature. In addition, we vacate the 

judge's modification of the section 104(d)(l) order to a section 104(a) 

citation and remand this matter to the judge to determine whether the 

violation was caused by Y&O's unwarrantable failure to comply with the 

cited standard and to re-examine the penalty . 

. ~-c~.,C,-e?/~t-Lt-<.... Richard V. Backley, Commissioner J.----

~~e{mm~ 

L. Clair Nelson, Commissioner 

610 
Distribution 

Robert C. Kota, Esq. 

Youghiogheny & Ohio Coal Co. 

P.O. Box 1000 

St. Clairsville, Ohio 43950 

Vicki Shteir-Dunn, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Connnission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

611 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, &TH FLOOR 

WASHINGTON, D.C. 20006 

LOCAL UNION 2333, DISTRICT 29, 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

v. 

RANGER FUEL CORPORATION 

May 13, 1988 

Docket No. WEVA 86-439-C 

Before: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

This compensation proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982) ("Mine Act" or 

"Act"). The United Mine Workers of America ("UMWA") seeks compensation 

from Ranger Fuel Corporation ("Ranger") pursuant to the third sentence 

of section 111 of the Mine Act for an idling of miners following the 

issuance of an imminent danger withdrawal order. l/ In denying the 

!/ In relevant part, section 111 provides: 

Entitlement of miners to full compensation 

[1] If a coal or other mine or area of such mine 

is closed by an order issued under section [103] 

••• , section [104] ••• , or section [107] of this 

[Act], all miners working during the shift when such 

order was issued who are idled by such order shall 

be entitled, regardless of the result of any review 

of such order, to full compensation by the operator 

at their regular rates of pay for the period they 

are idled, but for not more than the balance of such 

shift. [2] If such order is not terminated prior to 

the next working shift, all miners on that shift who 

are idled by such order shall be entitled to full 

compensation by the operator at their regular rates 

of pay for the period they are idled, but for not 

more than four hours of such shift. [3] If a coal 

or other mine or area of such mine is closed by an 

612 
parties' cross-motions for sununary decision, Commission Administrative 

Law Judge Gary Melick held that Ranger's payment of a civil penalty 

proposed for a citation issued after the imminent danger withdrawal 

order was issued did not preclude Ranger from contesting in the 

compensation proceeding the violation itself or the causal relationship 

noted in the citation between the violation alleged therein and the 

withdrawal order. We granted the UMWA's petition for interlocutory 

review and stayed proceedings before the judge. For the reasons that 

follow, we conclude that Ranger's payment of the civil penalty 

extinguished its right to challenge the violation alleged in the 

citation, but we hold that Ranger may litigate in the compensation 

proceeding the issue of the causal relationship between the violation 

and the withdrawal order. Accordingly, we reverse in part, affirm in 

part, and remand for further proceedings. 

Miners employed by Ranger at its Beckley No. 2 underground coal 

mine in West Virginia are represented by Local Union 2333, District 29, 

UMWA. ~/ At 11:30 a.m., on May 29, 1986, MSHA Inspector William Uhl 

issued to Ranger an imminent danger withdrawal order pursuant to section 

107(a) of the Mine Act, 30 U.S.C. § 817(a), on the basis of his finding 

that an explosive mixture of methane gas in excess of 57. was present in 

order issued under section [104) ... or section 

[107) of this [Act] for a failure of the operator to 

comply with any mandatory health or safety 

standards, all miners who are idled due to such 

order shall be fully compensated after all 

interested parties are given an opportunity for a 

public hearing, which shall be expedited in such 

cases, and after such order is final, by the 

operator for lost time at their regular rates of pay 

for such time as the miners are idled by such 

closing, or for one week, whichever is the lesser. 

[4] Whenever an operator violates or fails or 

refuses to comply with any order issued under 

section [103) ... , section [104) .•. , or section 

[107) of this [Act], all miners employed at the 

affected mine who would have been withdrawn from, or 

prevented from entering, such mine or area thereof 

as a result of such order shall be entitled to full 

compensation by the operator at their regular rates 

of pay, in addition to pay received for work 

performed after such order was issued, for the 

period beginning when such order was issued and 

ending when such order is complied with, vacated, or 

terminated. . .. 

30 U.S.C. § 821 (sentence numbers added). 

~/ Because there has been no evidentiary hearing as yet in this 

matter, the factual background set forth in the text is based on the 

parties' pleadings and briefs and on the relevant order and citation 

issued by the Department of Labor's Mine Safety and Health 

Administration ("MSHA"). 

613 
the mine's 7 East Section located in the longwall area of the mine. 

(Methane becomes explosive at a 5% concentration. See,~·· Monterey 

Coal Co., 7 FMSHRC 996, 1000-01 (July 1985).) Following issuance of the 

withdrawal order, Ranger withdrew all miners then underground. The mine 

was idled from 11:30 a.m., May 29, to 7:00 p.m., May 31, 1986, when the 

order was modified to permit the resumption of production in certain 

areas of the mine other than the 7 East Section. 

On June 3, 1986, Inspector Uhl issued a citation to Ranger 

pursuant to section l04(a) of the Mine Act, 30 U.S.C. § 814(a). The 

citation asserted that it was "based on laboratory analysis of an air 

sample collected on May 29, 1986" and charged Ranger with a violation of 

30 C.F.R. § 75.329 in that "[t)he bleeder system [had) failed to 

function adequately to carry away an explosive mixture of methane in the 

tail entries of the 7 East Longwall Section." 3/ The citation also 

stated: "The citation was a factor that contributed to the issuance of 

the inuninent danger order .... 11 The next day, June 4, 1986, the section 

107(a) withdrawal order and the section 104(a) citation were terminated 

following a determination by the inspector that the methane level in the 

mine was below the maximum permissible level as a result of Ranger's 

installation of ventilation controls. 

Ranger did not contest the section 107(a) withdrawal order or the 

citation alleging the violation of section 75.329. Rather, after 

receiving MSHA's notice of a proposed civil penalty assessment of $213 

for the alleged violation, Ranger paid the penalty on August 29, 1986, 

without requesting a hearing. Ranger's payment of the penalty for the 

violation occurred 14 days after the UMWA had filed a section 111 

complaint for compensation with the Commission and 10 days after Ranger 

lf Section 75.329, which restates section 303(z)(2) of the Mine Act, 

30 U.S.C. § 863(z)(2), provides in pertinent part: 

On or before December 30, 1970, all areas from 

which pillars have been wholly or partially 

extracted and abandoned areas ... shall be ventilated by bleeder entries or by bleeder systems or 

equivalent means, or be sealed .... When ventilation of such areas is required, such ventilation 

shall be maintained so as continuously to dilute, 

render harmless, and carry away methane and other 

explosive gases within such areas and to protect the 

active workings of the mine from the hazards of such 

methane and other explosive gases. Air coursed 

through underground areas from which pillars have 

been wholly or partially extracted which enters 

another split of air shall not contain more than 2.0 

volume per centum of methane, when tested at the 

point it enters such other split. When sealing is 

required, such seals shall be made in an approved 

manner so as to isolate with explosion-proof 

bulkheads such areas from the active workings of the 

mine. 

614 
had been served with the complaint for compensation at its Beckley No. 2 

Mine. 

The miners working the 8 a.m. to 4 p.m. shift at the time the mine 

was idled on May 29 were compensated by Ranger for the remainder of that 

shift. Those scheduled to work the following shift from 4 p.m. to 

midnight on May 29 were also compensated for that shift. The complaint 

filed by the UMWA on August 15, 1986, sought "one-week compensation" 

under the provisions of the third sentence of section 111 on behalf of 

those miners who had been previously scheduled to work on May 30 and 31, 

but were idled by the withdrawal order. (Under the third sentence of 

section 111, miners idled as a result of a section 104 or 107 withdrawal 

order issued "for a failure of the operator to comply with any mandatory 

health or safety standards" are entitled to compensation "for such time" 

as they are idled "or for one week, whichever is the lesser." See n.1 

supra.) 

Prior to a hearing on the compensation complaint, both parties 

filed motions for summary decision. In its motion for summary decision, 

the UMWA asserted that: (1) Ranger's payment of the civil penalty 

proposed in connection with the section 104(a) citation established that 

the charged violation of section 75.329 had occurred for purposes of any 

subsequent proceeding under the Mine Act; and (2) the inspector's 

notation on the citation that there was a causal relationship between 

the violation and the imminent danger should be regarded, by reason of 

Ranger's payment of the penalty, as establishing for compensation 

purposes the requisite nexus between the imminent danger order and an 

underlying violation of a mandatory standard. Thus, the UMWA argued 

that all the elements necessary to sustain a compensation claim under 

the third sentence of section 111 were established and the idled miners 

were entitled to compensation as a matter of law. 

In opposition to the UMWA's motion for summary decision, Ranger 

asserted that there were numerous factual allegations in dispute, such 

as the identity of the individual miners who might be entitled to 

compensation. Arguing for summary decision in its favor, Ranger 

contended that the section 107(a) withdrawal order did not allege on its 

face a failure by the operator to comply with a mandatory health or 

safety standard as required by the third sentence of section 111. 

Ranger further argued that the citation alleging a violation of section 

75.329 was invalid because the standard applies only to bleeders 

ventilating old abandoned areas developed before December 30, 1970, and 

not to areas developed after that date, which it asserted was the case 

here. Ranger also argued that it should not be precluded in a 

compensation proceeding from contesting the validity of the citation or 

the violation alleged therein, even though it had paid the civil penalty 

proposed for the violation. 

In denying both motions for summary decision, the judge found that 

the citation upon which the UMWA sought to establish a "causal nexus" 

with the imminent danger order was not contested by Ranger and that the 

proposed penalty had, in fact, been paid. Order Denying Motions for 

Summary Decision at 2 (May 14, 1987) ("Order"). However, the judge held 

that Ranger's payment of the civil penalty did not preclude Ranger "from 

615 
challenging either the validity of the citation (or the causal relation 

between the violation cited therein and the closure order at issue)" in 

this compensation proceeding. Id. He stated: 

Section 111 of the Act expressly provides that the 

form of compensation sought herein can be awarded 

only "after all interested parties are given an 

opportunity for a public hearing." That right to a 

public hearing would indeed be hollow if the mine 

operator could not litigate the critical issue of 

whether the order that idled the miners was issued 

"for a failure of the operator to comply with any 

mandatory health or safety standard." 

Id. The judge further determined that collateral estoppel did not 

preclude Ranger from contesting the validity of the citation because 

there had been no actual litigation with respect to the existence of the 

alleged violation. Id. Finally, the judge held that Ranger's argument 

that the withdrawal order must allege a violation of a mandatory 

standard on its face was contrary to the Commission's holding in Loe. U. 

1889, UMWA v. Westmoreland Coal Co., 8 FMSHRC 1317 (September 1986), 

which stated that for purposes of entitlement to compensation it is not 

necessary for an idling order itself to allege a violation of a 

standard. Order at 2-3. 

We granted the UMWA's petition for interlocutory review and stayed 

proceedings before the judge. We also permitted the Secretary of Labor 

to file an amicus curiae brief. On review, Ranger and the UMWA 

essentially rely on the same arguments that they asserted before the 

judge. In brief, the UMWA argues that under the Commission's decisions 

in Old Ben Coal Co., 7 FMSHRC 205 (February 1985), and Westmoreland, 

supra, Ranger's payment of the civil penalty prevents it from 

challenging in this proceeding either the violation of section 75.329 as 

alleged in the section 104(a) citation or the inspector's notation in 

that citation of a causal relationship, i.e., a "nexus," between the 

violation and the imminent danger withdrawal order. PIR 3-4. Ranger 

counters that it should be permitted to demonstrate in this compensation 

proceeding "that no violation in fact occurred" (R. Br. 22) and to 

litigate the question of nexus in addition to other issues regarding 

entitlement of individual miners to specific sums of compensation. R. 

Br. 6-7. The Secretary as amicus curiae submits that Ranger's payment 

of the civil penalty must be "deemed a final order of the Commission" by 

operation of section 105(a) of the Mine Act. S. Br. 6-8. ~/ The 

~/ Section 105(a) provides in relevant part: 

Notification of civil penalty; contest 

If, after an inspection or investigation, the 

Secretary issues a citation or order under section 

[104) of this [Act], he shall, within a reasonable 

time after the termination of such inspection or 

investigation, notify the operator by certified mail 

616 
Secretary further asserts that permitting Ranger to contest the citation 

in this proceeding would place miners and their representatives in the 

"disadvantaged litigation posture" of having to establish de ~ the 

validity of a secretarial enforcement action. S. Br. 6, 12. 

We first address the question of whether Ranger's payment of the 

civil penalty proposed for the violation of section 75.329 precludes it 

from contesting that violation in this compensation proceeding. Ranger 

contends that such a challenge would be limited in nature -- confined 

strictly to the purpose of defending itself against the sP.ction 111 

compensation claim. If Ranger could establish that no violation 

occurred, then the UMWA would be unable to demonstrate the required 

nexus between a violation and issuance of the idling withdrawal order. 

We conclude, however, that Ranger's position cannot be reconciled with 

the statutory framework of sections 105 and 111 of the Mine Act and with 

decisions interpreting those provisions. 

Section 105 of the Mine Act provides operators with two 

opportunities to contest and request a hearing concerning issuance of a 

section 104 citation. It is well-established that section 105(d) grants 

an operator the right to seek immediate review of an abated citation 

before the Secretary has proposed a civil penalty. Energy Fuels Corp., 

1 FMSHRC 299, 300-09 (May 1979); Old Ben Coal Co., 7 FMSHRC 205, 207-08 

(February 1985); Quinland Coals, Inc., 9 FMSHRC 1614, 1620-21 (September 

1987). ~/ After a civil penalty assessment is proposed, an operator has 

of the civil penalty proposed to be assessed under 

section [llO(a)] of this [Act] for the violation 

cited and that the operator has 30 days within which 

to notify the Secretary that he wishes to contest 

the citation or proposed assessment of penalty. 

If, within 30 days from the receipt of the notification issued by the Secretary, the operator fails 

to notify the Secretary that he intends to contest 

the citation or the proposed assessment of penalty, 

and no notice is filed by any miner or representative of miners under subsection (d) of this 

section within such time, the citation and the 

proposed assessment of penalty shall be deemed a 

final order of the Commission and not subject to 

review by any court or agency. 

30 U.S.C. § 815(a) (emphasis added). 

~/ Section 105(d) provides in relevant part: 

Contest proceedings; hearing; findings of fact; 

affirmance, modification, or vacation of citation, 

order, or proposed penalty; procedure before 

Commission 

If, within 30 days of receipt thereof, an operator 

of a coal or other mine notifies the Secretary that 

he intends to contest the issuance or modification 

617 
another opportunity under section lOS(a) to file a notice of contest of 

the proposed penalty. Id. Moreover, an immediate contest of a citation 

under section lOS(d) is not a procedural prerequisite to initiating a 

contest under section lOS(a) of the penalty assessment proposed for that 

citation, and in such a penalty contest the operator may challenge the 

penalty as well as the fact of violation. 30 U.S.C. § 815(a); Quinland 

Coals, supra, 9 FMSHRC at 1621-22. 

If, however, an operator fails to contest a civil penalty proposed 

for a citation, section lOS(a) expressly provides that both "the 

citation and the proposed assessment of penalty shall be deemed a final 

order of the Commission and not subject to review by any court or 

agency." 30 U.S.C. § 815(a); see also Senate Rep. No. 181, 95th Cong., 

1st Sess. 34 (1977), reprinted in Senate Subcommittee on Labor, 

Committee on Human Resources, Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 622 (1978). Further, an operator's 

payment of a proposed civil penalty constitutes an admission of the 

underlying violation and precludes the operator from continuing a 

pending section 105(d) contest of the violation. Old Ben, supra, 

7 FMSHRC at 209. "For purposes of the Act, paid penalties that have 

become final orders [pursuant to section 105(a)] reflect violations of 

the Act and the assertion of violation contained in the citation is 

regarded as true." Id. See also Amax Lead Co. of Missouri, 4 FMSHRC 

975, 978-79 (June 1982) (payment of a penalty in settlement operates as 

a concession that "for purposes of any proceedings under the Mine Act, 

the violations [are] to be treated as if established.") Thus, the Act's 

enforcement provisions have consistently been interpreted to mean that 

once a civil penalty is paid or becomes a final order by operation of 

section 105(a), the assertion of violation contained in the citation 

cannot be contested in a subsequent proceeding under the Mine Act. In 

fact, the Old Ben-Amax Lead rationale has been expressly applied in the 

context of a compensation proceeding to foreclose challenges of 

violations for which penalties were paid. Westmoreland, supra, 8 FMSHRC 

of an order issued under section [104] of this 

[Act], or citation or a notification of proposed 

assessment of a penalty issued under subsection (a) 

or (b) of this section, or the reasonableness of the 

length of abatement time fixed in a citation or 

modification thereof issued under section [104] of 

this [Act], ••. the Secretary shall immediately 

advise the Commission of such notification, and the 

Commission shall afford an opportunity for a hearing 

(in accordance with section 554 of title 5, but 

without regard to subsection (a)(3) of such 

section), and thereafter shall issue an order, based 

on findings of fact, affirming, modifying, or 

vacating the Secretary's citation, order, or 

proposed penalty, or directing other appropriate 

relief. Such order shall become final 30 days after 

its issuance. 

30 u.s.c. § 815(d). 

618 
at 1330; Loe. U. 2274, UMWA v. Clinchfield Coal Co., 8 FMSHRC at 1310, 

1314 (September 1986). 

Here, Ranger did not avail itself of either of the two 

opportunities granted by the Mine Act to contest the allegation of 

violation made in the citation. Instead, it paid the civil penalty 

proposed for the violation. Under these circumstances, both the 

validity of the citation and the amount of the civil penalty are final 

under section 105(a) of the Act and not subject to review. Thus, Ranger 

is precluded in this proceeding from challenging the violation. ~/ 

In addition, we agree with the Secretary that allowing an operator 

to challenge in a compensation proceeding the fact of violation despite 

having paid the relevant civil penalty would improperly place miners and 

their representatives in a prosecutorial role. The Secretary, as 

enforcer and prosecutor of the Mine Act, is a party to a section 105 

enforcement proceeding but not to a section 111 compensation proceeding. 

30 U.S.C. §§ 815 & 821. See Int'l U., UMWA v. FMSHRC, 840 F.2d 77, 81-

82 (D.C. Cir. 1988). If an operator were permitted to make the kind of 

challenge advocated by Ranger, miners and their representatives would be 

required to perform functions properly resting within the Secretary's 

domain in order to prove the underlying violation or the validity of the 

citation or order in which the allegation of violation was contained. 

Given the unified scheme of the Mine Act, we find unconvincing Ranger's 

assertion that it would not be inconsistent to allow it to challenge the 

fact of violation in a compensation proceeding even though it chose not 

to contest the allegation of violation in an enforcement proceeding. 

Accordingly, we reverse the judge's determination that Ranger should be 

£/ Ranger cites Secretary v. Kenny Richardson, 3 FMSHRC 8 (January 

1981), aff'd, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 

(1983), in support of its contention that a final order pursuant to 

section 105(a) does not have preclusive effect in a subsequent 

proceeding under the Mine Act. Ranger's reliance on Kenny Richardson is 

misplaced. In that proceeding, the corporate agent, Richardson, had 

been cited pursuant to section 109(c) of the Federal Coal Mine Health 

and Safety Act of 1969, 30 U.S.C. § 801 et seg. (1976)(amended 1977), 

the identical predecessor provision to section llO(c) of the Mine Act, 

30 U.S.C. § 820(c). The corporate operator also had been cited. In the 

separate proceeding against the operator, the operator had paid the 

proposed penalties without contesting the charges against it. At issue 

in the Richardson case was the Secretary's power to pursue the corporate 

agent even though the corporate operator had paid the penalty and was 

not a party in the· subsequent proceeding against the agent. The 

Conunission held that despite the operator's payment of the penalty, the 

Secretary was not precluded from proving the operator's violation of the 

standard as an element of proof in the case against the agent and the 

agent was not barred from contesting the allegation that a violation had 

occurred. 3 FMSHRC at 10. Thus, Kenny Richardson concerned the effect 

of a final Commission order on the enforcement of the Act against a 

separate respondent, whereas the present proceeding concerns the effect 

of a final order on the same party that had paid the penalty, i.e., the 

operator. 

619 
permitted in this proceeding to challenge the validity of the citation 

or the underlying violation. 

We turn to consideration of whether Ranger's payment of the 

penalty also operated as an admission of a causal nexus between the 

violation and the imminent danger withdrawal order for purposes of 

determining entitlement to compensation under section 111. In Eastern 

Associated Coal Corp., 3 FMSHRC 1175, 1178 (May 1981), the Commission 

discussed the concept of "nexus" in the compensation context in 

describing the causal relationships between the operation of withdrawal 

orders and idling of miners necessary to sustain various compensation 

awards. One-week compensation under the third sentence of section 111 

is keyed to idlements resulting from section 104 or 107 withdrawal 

orders issued "for a failure of the operator to comply with any 

mandatory health or safety standards .... " In Westmoreland, the 

Commission held that allegations of violation of mandatory standards 

contained in section 104(a) citations or section 104(d) citations or 

orders could provide the causal nexus with a previously issued section 

107(a) imminent danger withdrawal order. 8 FMSHRC at 1329-30. Thus, 

under applicable precedent the section 104(a) citation in the present 

proceeding may be examined to determine whether a nexus existed between 

the violative condition and the section 107(a) withdrawal order. 

There is a crucial distinction, however, between the issue of the 

fact of violation for enforcement purposes and the separate issue of 

causal nexus for compensation purposes. In Westmoreland, following 

application of the Old Ben principle that the operator's payment of 

penalties established the underlying violations, the Commission 

nevertheless remanded the matter for a determination of whether nexus 

existed: 

Left unresolved, however, is the specific question 

of whether any of these charges of violation of 

mandatory standards in fact provide the necessary 

relationships to the section 107(a) order so as to 

initiate compensation under the third sentence of 

section 111. 

Because the relationship or nexus between the 

violations of mandatory standards and the imminent 

danger order is the critical issue on which 

statutory entitlement to one-week compensation 

hinges, we remand ... for further proceedings .... 

If such a relationship is determined, the judge 

shall take appropriate action to identify the 

affected miners and the amount of compensation due 

to each. 

8 FMSHRC at 1330. ZI Thus, the issue of causal nexus in a compensation 

7/ Clinchfield, supra, also involved one uncontested section 

l04(d)(l) citation and three section 104(d)(l) orders for which 

penalties had been paid. The Commission concluded that the citation and 

620 
proceeding is independent of the allegation of violation and must be 

addressed separately in order to determine entitlement to one-week 

compensation under the third sentence of section 111. 

The UMWA acknowledges that the issue of causal nexus is compensation-related but relies on Old Ben to argue that Ranger should have 

known "full well that findings in an uncontested citation are regarded 

as true for purposes of all subsequent proceedings under the Act .... " 

PIR 4 (emphasis added). We do not agree. Old Ben states only that 

"[p]aid penalties that have become final orders reflect violations of 

the Act and the assertion of violation contained in the citation is 

regarded as true." 7 FMSHRC at 209 (emphasis added). Old Ben in no way 

involved the issue of whether causal nexus is admitted for purposes of 

section 111 when an operator pays the civil penalty associated with a 

citation containing a specific notation regarding nexus. 

As we have emphasized, section 105 provides two opportunities for 

review by which an operator may contest citations and orders issued 

pursuant to section 104 and proposed penalty assessments for those 

orders and citations. Such contest proceedings include consideration by 

the administrative law judge of the statutory elements necessary to 

prove the alleged violation and to assess a penalty. A finding of 

"causal nexus" is not one such element. There is no statutory basis for 

the compensation-related issue of causal nexus to be addressed in a 

section 105 enforcement hearing. Had Ranger timely contested the 

citation, the judge in a section 105 proceeding would properly have 

reserved the nexus issue for consideration in the compensation 

proceeding. Whatever importance the inspector's notation of nexus on a 

citation may serve in the Secretary's enforcement of the Act, the 

subject of nexus between a withdrawal order and an underlying violation 

becomes relevant only in a section 111 compensation proceeding. 

We therefore affirm the judge's conclusion that Ranger may contest 

the issue of the causal nexus between the violation and the section 

107(a) withdrawal order in the compensation proceeding. Finally, we 

conclude in agreement with Ranger that issues remain to be tried in this 

proceeding regarding the entitlement of individual miners to specific 

sums of compensation. See Loe. U. 1889, etc., UMWA v. Westmoreland Coal 

Co., 9 FMSHRC 1195, 1196 (July 1987). 

orders could supply the required causal nexus and remanded the matter 

for a determination of whether the nexus existed. 8 FMSHRC at 1314. 

Likewise, in Greenwich, supra, the matter was remanded to afford the 

parties the opportunity to litigate the question of nexus once the 

merits of the alleged violations were resolved. 8 FMSHRC at 1307. 

621 
Accordingly, the judge's decision is reversed insofar as it held 

that Ranger may contest in this compensation proceeding the fact of 

violation or the validity of the citation for which it has paid the 

civil penalty. We affirm the judge's decision insofar as it permitted 

Ranger to litigate the issue of the causal nexus between the fact of 

violation and the section 107(a) withdrawal order. We dissolve the stay 

and remand this matter for further proceedings consistent with this 

decision. 

J Doyle, Commissio 

'Ys /;Last~wk~mmis:ioner 

CT:'l-e-~v / Le__Ltf_-0---rL/ 

L. Clair Nelson, Commissioner 

622 
Distribution 

John T. Scott, Esq. 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Joyce Hanula, Legal Asst. 

mruA 

900 15th St., N.W. 

Washington, D.C. 20005 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Gary Melick 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

623 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 26, 1988 

RIVCO DREDGING CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket Nos. KENT 88-23-R 

KENT 88-24-R 

KENT 88-25-R 

KENT 88-26-R 

KENT 88-27-R 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

ORDER 

BY THE COMMISSION: 

In this contest proceeding arising under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982), the Secretary of 

Labor filed a motion to dismiss the contest proceeding based upon the 

failure of Rivco Dredging Corporation ("Rivco") to notify the Secretary 

that it intended to contest the civil penalties subsequently proposed 

for the contested citations and orders. On April 20, 1988 Commission 

Administrative Law Judge Roy J. Maurer issued an order of dismissal. 

Rivco filed a response in opposition to the Secretary's motion, claiming 

that it believed that its previous contest of the citations and orders 

was sufficient to place the penalties in issue. However, the response 

was not received until after the judge entered his dismissal order. 

Rivco filed a Petition for Discretionary Review alleging, in 

essence, that it had failed to notify the Secretary of its intent to 

contest the penalties because it had already filed a timely Notice of 

Contest relating to these alleged violations, and was unaware that a 

contest of the civil penalty proposals was also required. On May 25, 

1988, the Secretary filed a response to Rivco's Petition for Discretionary Review. 

It appears that this operator, acting pro se, acted in good faith 

but misunderstood the need to object separately to the two different 

aspects of the same dispute. See 30 U.S.C. § 815(a) (contest of 

proposed civil penalties). Cf. Old Ben Coal Co., 7 FMSHRC 205 (February 

1985). This Commission has recognized that, in cases like this, 

innocent procedural missteps alone should not operate to deny a party 

the opportunity to present its objections to citations or orders. See, 

~. M.M. Sundt Constr. Co., 8 FMSHRC 1269 (September 1986); Kelley 

Trucking Co., 8 FMSHRC 1867 (December 1986). 

624 
In the interest of justice, we conclude that Rivco should be given 

the opportunity to present to the administrative law judge the reasons 

for its failure to contest the civil penalty proposals and the judge 

should evaluate its explanation in light of the precedents cited above. 

The judge should also address the timeliness issue raised by the 

Secretary in its response to Rivco's petition for discretionary review. 

Accordingly, we grant the petition for review, vacate the judge's order 

of dismissal of the contest proceeding, and remand the matter for 

proceedings consistent with this order. 

L. 

~:=:?~~~ Clair Nelson, Commissioner 

625 
Distribution 

Gene A. Wilson, President 

Rivco Dredging Corporation 

P.O. Box 702 

Louisa, Kentucky 41230 

G. Elaine Smith, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

2002 Richard Jones Road 

Suite B-201 

Nashville, TN 37215 

Dennis Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Roy Maurer 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

626 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG Pl KE 

FALLS CHURCH, VIRGINIA 22041 

MAY 2 1988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

Docket No. PENN 87-97 

A.C. No. 36-02404-03501 B-70 

v. 

Greenwich No. 2 Mine 

OTIS ELEVATOR COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Linda M. Henry, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner~ 

Gary L. Melampy, Esq., Reed, Smith, Shaw & 

Mcclay, Washington, D.C., for Respondent. 

Judge Maurer 

STATEMENT OF THE CASE 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to section 105(d) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801, et seq., (the "Act") for two alleged violations of the 

regulatory standard found at 30 C.F.R. § 77.205(b).~/ 

The issues before me are the respondent's status as an 

"operator" under the Act, and whether the respondent, if 

properly charged as an operator in this instance with violating the subject regulation, violated that regulation as 

alleged, and, if so, whether those violations were of such a 

!I § 77.205(b) Travelways and platforms or other means of 

access to areas where persons are required to travel or work, 

shall be kept clear of all extraneous material and other 

stumbling or slipping hazards. 

627 
nature as could significantly and substantially contribute to 

the cause and effect of a mine safety or health hazard, i.e., 

whether the violations were "significant and substantial." If 

violations are found, it will also be necessary to determine 

the appropriate civil penalty to be assessed in accordance 

with section llO(i) of the Act. 

The case was heard in Pittsburgh, Pennsylvania, on 

October 23, 1987. The parties have filed posthearing briefs 

and proposed findings and conclusions, and they have been 

considered by me in the course of this decision. 

·section 104(a) "S&S" Citation No. 2690794 issued on 

October 29, 1986, cites a violation of 30 C.F.R. § 77.205Cb) 

and the cited condition or practice is described as follows: 

Otis elevator personnel have created a slipping 

hazard when they oil the suspension ropes and 

grease the bearings on the suspension rope 

shieve (sic) drum on the 580 portal shaft elevator. An excess of oil and grease has fallen on 

to the travelway below this shieve (sic) drum. 

Employees of this coal operator have to use 

this travelway when they make their daily elevator examinations. 

Section 104Ca> "S&S" Citation No. 2690795 also issued on 

October 29, 1986, cites another violation of 30 C.F.R. 

§ 77.205(b) and the cited condition or practice is described 

as follows: 

Otis Elevator personnel have created a slipping 

hazard when they oiled the suspension ropes and 

also when they greased the bearings on the suspension rope shieve (sic) drum on the Cookport 

Elevator. An excess of oil and grease has 

fallen on to the travelway below this shieve 

(sic) drum. Employees of this coal operator 

have to use this travelway when they make their 

daily examination on the Cookport Shaft 

Elevator. 

RESPONDENT'S STATUS AS OPERATOR 

All during 1986 the Otis Elevator Company (Otis) had a 

contract with the Pennsylvania Mines Corporation CPMC) to 

furnish and provide supervision, labor, equipment, tools, materials and spare parts to inspect and maintain elevators including the Cookport and 580 Shaft Elevators at PMC's Greenwich 

No. 2 Mine. This maintenance and service contract provided 

that Otis would maintain the elevator equipment in safe operating condition and more specifically that Otis would regularly 

628 
and systematically examine, adjust, lubricate, repair or 

replace elevator parts, as required. Under the terms of this 

contract, Otis was further obliged to examine periodically all 

safety devices and governors and make periodic no load and full 

load safety tests. As a practical matter, this amounted to 

Otis conducting weekly inspections of the elevators, performing 

bi-monthly safety tests and responding to trouble calls and 

repairing the elevators on an as-required basis. In consideration for the performance of these services, Otis received 

$2,604.61 per month for the 580 Shaft Elevator and $2,633.29 

per month for the Cookport Shaft Elevator at the Greenwich 

No. 2 Mine. 

There is an attachment to this contract, signed for Otis 

by one Carl M. Dick as Branch Manager, ~hat arguably registers 

Otis as an independent contractor, including providing an 

address for service of MSHA citations. Further, Government 

Exhibit No. 9 is a Bureau of Mines Legal Identity Report which 

also identifies the Corporation as an independent contractor 

providing "servicing". 

The Act contains a rather broad definition of "operator" 

at section 3(d): 

For the purpose of this Act, the term--

* * * * * * * 

(d) "operator" means any owner, lessee, or 

other person who operates, controls, or supervises a coal or other mine or any independent 

contractor performing services or construction 

at such mine <emphasis added). 

Against the background that Otis is an elevator service 

company whose employees, pursuant to a service contract between 

Otis and PMC performed inspections and conducted safety tests 

on a regular basis on the two elevators at the Greenwich No. 2 

Mine as well as performing more extensive maintenance and 

repair work on those elevators on an as-needed basis, it seems 

patently clear to me that the language of section 3Cd) of the 

Act intended to include them within the definition of "operator". I have previously so held in Secretary v. Otis Elevator 

Co., 9 FMSHRC 1933, 1935 (November 10, 1987) appeal docketed, 

No. PENN 86-262 (December 18, 1987). That case involved an 

elevator at PMC's Greenwich No. 1 Mine which was being serviced 

and maintained by Otis pursuant to the same contract as is 

herein involved. 

629 
Otis contends that it is not an "operator" subject to the 

jurisdiction of the Mine Act notwithstanding its service contract with PMC because of its allegedly minimal presence at 

the mine. The company argues that the U.S. Courts of Appeals 

for the Third and Fourth Circuits have concluded, based on the 

Act's language and its legislative history, that Congress did 

not intend to classify all independent contractors who might 

have employees on mine property as "operators" within the meaning of the Act, citing National Industrial Sand Association v. 

Marshall, 601 F.2d 689 (3d Cir. 1979), and Old Dominion Power 

Co. v. Donovan, 772 F.2d 92 (4th Cir. 1985). 

Both cases are distinguishable. In National Industrial 

Sand Association, the issue the court was faced with was substantially different. The issue before the Third Circuit was 

whether the Secretary was statutorily authorized to include 

fewer than all independent contractors as operators for purposes of the training regulations. The Court, however, at the 

beginning of its analysis did set forth some general guidance: 

'Operator' is defined in the Mine Act as 'any 

owner, lessee, or other person who operates, 

controls or supervises a coal or other mine or 

any independent contractor performing services 

or construction at such mine.' As this definition indicates, some, if not all, independent 

contractors are to be regarded as operators. 

The reference made in the statute only to independent contractors who 'perform [] services or 

construction' may be understood as indicating, 

however, that not all independent contractors 

are to be considered operators. There may be a 

point, at least, at which an independent contractor's contact with a mine is so infrequent 

or de minimis that it would be difficult to 

conclude that services were being performed. 

601 F.2d at 701 (footnote omitted). 

Old Dominion, supra, while an enforcement proceeding 

similar to the instant case, presents a very different situation factually. In Old Dominion, the utility's contacts with 

the mine were truly de minimis. 

The sole revenue derived by Old Dominion from 

its relationship with Westmoreland is for the 

sale of electric power. Old Dominion does not 

perform any maintenance at the substation, or 

of the transmission or distribution lines leading to and from the substation. Old Dominion's 

630 
employees install equipment to measure voltage 

and amperage for its meter, maintain the meter 

and read it approximately once per month for 

purposes of billing. 772 F.2d at 93. 

In holding that the MSHA regulations do not apply and 

were not intended to apply to electric utilities whose sole 

relationship to the mine is the sale of electricity, the Court 

stated that: 

Old Dominion's only contact with the mine is 

the inspection, maintenance, and monthly reading of a meter for the purpose of sending a 

bill to a mine company for the sale of electricity. Petitioner's employees rarely go upon 

mine property and hardly, if ever, come into 

contact with the hazards of mining. 

* * * * * * * 

MSHA seeks to regulate those few moments every 

month when electric utility workers read or 

maintain meters on mine property. 

* * * * * * * 

Plainly, Congress intended to exclude electric 

utilities, such as 01.d Dominion, whose only 

presence on the site is to read the meter once 

a month and to provide occasional equipment 

servicing. 772 F.2d at 96-97. 

In stark contrast to the Old Dominion factual situation, 

I find as a fact that Otis' contractual obligations and performance thereof constituted a substantial, as opposed to a 

de minimis continuing presence at the Greenwich No. 2 Mine. 

Pursuant to its service contract, an Otis maintenance examiner 

conducted a weekly routine inspection of the elevators and 

performed any necessary maintenance work as well as preventive 

maintenance at that time. Every other month, he would also be 

required by the terms of the contract to conduct a no load 

safety test. Additionally, Otis responded to service calls at 

each elevator on average at least once per month, with more 

frequent calls during the winter months. Furthermore, during 

1986 (the term of this contract), the Otis technician had on 

one or more occasions added oil to the automatic lubricating 

boxes for the hoisting ropes and greased the bearings on the 

deflector sheaves on these two elevators. Oil from these 

ropes and grease from these bearings are most likely the 

631 
source of the accumulations of oil and grease complained of in 

the citations at bar. I note here parenthetically, however, 

that the inspector has not, nor has anyone else, ever determined who was responsible for the specific accumulations he 

found on October 29, 1986. Quite frankly, as I will discuss 

later in this decision, it could very well have been the coal 

operator's employees who were responsible for the excess accumulations the inspector found. Both Otis and PMC employees had 

equal access to the elevator equipment, and as I will discuss 

later, both entities had their own motivations to lubricate or 

over-lubricate it. 

Otis also urges and I am satisfied that they do not 

extract coal from the mine or perform construction work at the 

mine nor exclusively control any portion of the mine, including the elevators at issue herein. I also agree that they did 

not maintain a daily presence at the mine. Nevertheless, they 

were an independent contractor performing substantial services 

on critical equipment at the mine. These elevators, although 

not used to transport coal out of the mine and thus, not 

per se part of the coal production or extraction process, are 

used as "man-trips" to transport the production crews into and 

out of the mine and additionally, are designated escapeways 

for the mine. 

Otis employees regularly and frequently inspect, service 

and repair these elevators and while Otis does not have exclusive physical control over the elevators themselves, it most 

certainly did have the responsibility by way of contractual 

obligation for their inspection, maintenance and repair. 

Therefore, I agree with the Secretary, as I have before, that 

the Otis Elevator Company is exactly the type of independent 

contractor which Congress intended be subject to the Mine Act. 

FACT OF VIOLATION - 30 C.F.R. § 77.205(b) 

On October 29, 1986, Inspector Niehenke observed an accumulation of oil on the platform below the deflector sheave on 

both the Cookport and 580 Shaft Elevators. He described the 

accumulation as covering the entire platforms with anywhere 

from a thin film to a quarter of an inch of light-colored oil. 

There were also scattered piles of grease, approximately an 

inch high, on the platforms, below the sheave wheels in this 

oil. These platforms were used by mine personnel at least 

weekly at that time to perform their required inspections of 

the elevator equipment. Mr. Gach, the Greenwich employee who 

was responsible for inspecting the elevators, testified that 

there was no other way to inspect the sheave wheels or hoisting ropes without going out onto these platforms. 

632 
Based on the foregoing, I find that the oil accumulations 

found by Inspector Niehenke on the two platforms presented an 

unquestionable slipping hazard and therefore constituted violations of the cited mandatory safety standard as alleged in the 

two citations at bar. 

The harder question is which operator, Otis or PMC, is 

responsible for these violations. 

RESPONSIBILITY FOR THE VIOLATION STRICT 

LIABILITY UNDER THE MINE ACT 

The Commission has often held that an operator is liable, 

without regard to fault, for violations of the Act or its regulations committed by its employees. The majority most recently 

1 re-affirmed this principle in Western Fuels-Utah, Inc., 

10 FMSHRC (March 25, 1988). 

It is also clear that there can be more than one "operator" at any particular time in a given mine. As I have already 

found in this case, Otis was an independent contractor type 

operator during the term of its contract while FMC remained the 

mine operator or "owner-operator" throughout the same time 

period. 

The Secretary states and I agree that MSHA may cite either 

the independent contractor or the mine operator for violations 

committed by independent contractor employees. Both the 

Commission and the federal courts have held that owners of coal 

mines can .be held strictly liable for violations of the Act 

committed by their independent contractors. Republic Steel 

Corp., 1 FMSHRC 5, 9 (1979); Old Ben Coal Co., 1 FMSHRC 1480, 

1481-83 (1979); Cyprus Industrial Minerals Co. v. FMSHRC, 

664 F.2d 1116, 1119 (9th Cir. 1981). However, I am unaware of 

any authority that stands for the obverse proposition--that the 

independent contractor is strictly liable for the actions of 

the coal operator's employees. That very well may be the 

factual situation we are confronted with in this case, although 

there is no direct evidence of that. In fact, there is no 

direct evidence of any identifiable individual or entity that 

is responsible for the violative condition found by Inspector 

Niehenke. It is clear that there were two violations extant 

and that someone's negligence was the cause of their existence. 

It remains unknown, however, who the negligent actor was and by 

whom he was employed. 

Inspector Niehenke, in his discretion, exercised his 

judgment and cited Otis Elevator Company for causing the two 

633 
violations at bar, rather than the coal operator. I note, 

however, that the coal operator did not escape unscathed. PMC 

was also issued two citations that day by Inspector Niehenke 

for violations of the identical mandatory standard for permitting the slipping hazard to exist on the same two elevator 

platforms. It appears to me as though the inspector is making 

the two pools of oil serve double duty as the basis for four 

rather than two citations, because had he also alleged that 

PMC was responsible for causing the violative accumulations, 

since the same mandatory standard is involved, the four "violations" would have merged into two, one for each elevator. 

-The inspector arrived at his decision to cite Otis, rather 

then PMC, primarily on the basis of talking with Mr. Gach and 

his alternate, Mr. Burskey CTr. 109-110): 

I asked them if they oiled the ropes. They 

told me no, they did not. They were given 

instructions not to oil the ropes. I asked 

them who they thought could have done this, and 

they felt Otis done it, because Otis does the 

service contract work on the elevators. That's 

basically how I came to the conclusion that the 

contract operator certainly had involvement in 

these proceedings. 

At trial, however, Mr. Gach, who was responsible for 

servicing the elevators prior to the contract with Otis, 

admitted that on occasion he still serviced the elevators (Tr. 

23): 

Q. Did you ever fill the box with oil when the 

Otis Elevator people were the contractors? 

A. I probably did it once or twice in the 

years they were there. If you went up there, I 

was doing my inspection, and the box was dry, 

you would have to put oil in it. 

The inspector did not ask the assigned Otis employee or 

any Otis employee for that matter what work he had performed 

on the elevator or who he thought might be responsible for the 

accumulations. Had he done so, Mr. Shaffer presumably would 

634 
have told him, as he did testify, that at the beginning of 

1986 he used to add oil to the lubricating boxes 2/ whenever 

he thought the ropes needed lubrication. Otherwise, he let 

them run dry. PMC, however, was concerned that the ropes be 

lubricated at all times because MSHA had cited it for instances 

in the past when the hoisting ropes had become rusted. So, 

beginning in May, 1986, Shaffer added oil to each lubricating 

box during his inspections at the insistence of mine management. 

He categorically denies, however, taking any further action 

with regard to iubricating the ropes at any time during the 

term of the contract. He specifically denies ever applying oil 

to those portions of the ropes which do not pass by the lubricating boxes. 3/ He stated that such lubrication was unnecessary because those 20-30 feet of rope also do not go over the 

sheave wheel and therefore the internal hemp core of the rope 

provides sufficient lubrication for those lengths. Shaffer 

also specifically denies ever adjusting or replacing the wicks 

on the lubricating devices or in fact doing anything to them 

other than putting oil in the boxes. 

With regard to the grease droppings, Mr. Shaffer testified 

that he greased the bearings on the deflector sheaves on 

the two elevators in May of 1986. That was the one and only 

time he greased those bearings and he never noticed more than a 

drop or two of grease leaking out of those bearings in the 

2/ There were automatic lubricating devices consisting of a 

lubricating box which holds a quantity of oil and a wick made 

from a felt pad, installed in the elevator machine room for 

each of the nine hoisting ropes. The wick extends out of the 

box so as to be near the rope without actually touching it. 

The oil is then applied electrostatically to the rope as it 

passes near the wick. Once the ropes are coated with a thin 

film of oil, the electrostatic action stops until the rope 

becomes dry again. At that point, oil is again applied to the 

rope by electrostatic action. 

~/ Mr. Gach described a procedure that he has used to manually 

oil the 20-30 feet of rope that do not pass by the lubricating 

boxes at Tr. 30: 

"There is a certain amount of ropes on the sheave wheel 

that don't go through the oil, and you have got to go down 

there with a brush and brush oil on them. I think there are in 

the neighborhood of twenty feet of rope that won't go through 

the oil." 

He described this as a "messy" procedure and opined that 

perhaps the Otis technician had done this and not cleaned up 

after himself. 

635 
nearly 6 months between May and October of 1986. Prior to 

that time, when Otis first took over the maintenance on the 

elevators from the coal operator, he states those bearings 

were grossly over-greased and that he had to clean them up 

weekly, but that by May of 1986, he had the old over-greasing 

under control. 

I find the testimony of Lynn 

internally consistent throughout. 

mony to be very credible and I do 

decision. 

Shaff er to be cogent and 

I therefore find that testicredit it in making this 

'The testimony of Mr. Gach by comparison contradicts the 

Secretary's allegations in places and is internally inconsistent on a critical bit of evidence. He first stated at (Tr. 

38-40): 

Q. When had you last had occasion to be on the 

platform before the citation? 

A. It was probably two or three days. 

Q. About the time the Otis employee was there? 

A. I would say so. 

Q. Sometime after he was there? 

A. Yes. 

Q. But before Leroy [Inspector Niehenke] was 

there? 

A. Yes. 

* * * * * * * 

Q. Did you see an oil accumulation on that 

day; the last day prior to the inspection? 

A. No. 

Q. This is the same for both of these two elevators I take it? 

A. Yes. 

Then later he testified at (Tr. 56): 

636 
Q. The last time you were on the platform 

there was no accumulation? 

A. I'm absolutely sure there wasn't, and I'm 

sure Otis was there afterwards. 

My reading of the record herein including the fact that 

PMC was very concerned with lubricating these ropes leads me 

to believe that it is at least as likely that an overzealous 

PMC employee over-lubricated these ropes and bearings, as an 

Otis employee. 

Apropos this point, Inspector Niehenke was cross-examined 

concerning his testimony at an earlier hearing about another 

citation he issued at PMC's North Portal elevator (Tr. 

151-153): 

Q. I am reading from page 126 of your testimony at a hearing, which is PENN 86-262, which 

was given on March 31, 1987. 

"Question. On February 27 you issued a 

citation to the mine operator, but on March 3 

you issued a citation to Otis?" "Answer. That 

is correct." 

* * * * * * * 

Q. The previous citations that you issued were 

issued to the mine operator because the ropes 

were over lubricated? 

A. Yes. 

* * * * * * * 

Q. So, you were testifying that the mine operator, Greenwich Collieries, was responsible for 

over lubrication of the governor ropes on 

February 27? 

A. Yes. 

Q. Would you agree that the services that Otis 

provided to the Cookport and 580 elevators did 

not differ in any way in the services Otis 

provided to the North Portal elevator? 

A. They provide the same service, yes. 

637 
Q. And you determined in issuing your citation 

that it was the mine operator that was responsible for the over lubrication of the ropes on 

the North Portal elevator? · 

A. I couldn't establish it was Otis. 

On redirect examination, he reiterated (Tr. 156-157): 

Q. Mr. Niehenke, remembering back to the March 

.hearing and what you were talking about there, 

when you issued those citations on the governor 

ropes to Greenwich Collieries, why did you 

issue them to Greenwich instead of to Otis? 

A. Because I couldn't establish that Otis put 

the lubrication on the ropes. 

The same problem exists for the Secretary in this case. 

She cannot establish that Otis put the lubrication on the 

ropes or over-greased the bearings. In sum, she cannot establish that Otis was the responsible operator. I also find and 

conclude that the party who was in the best position to eliminate the hazard was the party who in fact did abate the violation, the coal mine operator. Furthermore, I expressly reject 

the Secretary's contention that Otis can be held strictly 

liable for violative conditions that were caused by the coal 

mine operator's employees. 

I am not persuaded that the Secretary has met her burden 

of proof on the issue of whose employees caused these violative conditions and absent a preponderance of the evidence 

which would tend to establish that it was an Otis employee, I 

do not believe the citations were properly issued to Otis. 

Accordingly, I am going to vacate the two citations at bar. 

ORDER 

It is ORDERED THAT: 

1. Section 104(a) Citation Nos. 2690794 and 2690795 ARE 

VACATED. 

638 
2. MSHA's petition for assessment of a civil penalty IS 

DISMISSED. 

urer 

rative Law Judge 

Distribution: 

Linda M. Henry, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Gary L. Melampy, Esq., Reed, Smith, Shaw & Mcclay, 

1150 Connecticut Avenue, Suite 900, Washington, DC 20036 

(Certified Mail) 

/fb 

639 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 4 \988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KENNETH-B. MIRACLE, 

Respondent 

. . 

Docket No. LAKE 88-44 

A. C. No. 11-00598-03638-A 

Peabody Coal Company 

Eagle No. 2 Mine 

DECISION 

Appearances: Edward H. Fitch, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia for 

Petitioner; 

Davids. Hemenway, Esq., Senior Counsel, 

Peabody Holding Company, Inc., St. Louis, Missouri, 

for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to section llO(c) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et 

seq., the "Act", charging that "on or about May 28, 1986, -

Respondent, acting as an agent of the corporate mine operator 

within the meaning and scope of sections 3(e) and llO(c) of the 

Act, knowingly authorized, ordered, or carried out, said 

operator's violation of 30 C.F.R. § 75.200." 

Section llO(c) provides as relevant hereto that "[w]henever 

a corporate operator violates a mandatory health or safety 

standard ••• any ••• agent of such co~poration who knowingly 

authorized, ordered, or carried out such violation ••• shall be 

subject to the same civil penalties, fines and imprisonment that 

may be imposed upon a person under subsections (a) and Cd). 

Since in this case it is alleged that the Respondent, 

Kenneth B. Miracle, committed the violation as an agent of the 

corporate operator, proof of this allegation would be sufficient 

to also prove that the corporate operator violated the cited 

regulation. The citation under which the corporate operator was 

charged alleges as follows: 

640 
The assistant superintendent, K. Miracle, was observed 

to have come through an area of unsupported roof where 

a roof fall had occurred. The area of unsupported roof 

was about 4 to 5 feet wide and 8 to 10 feet between 

permanent roof supports. The area was located in the 

first cross-cut outby the tail of the first section of 

the second main west belt conveyor. 

The Secretary maintains that the cited practice constituted 

a violation of that part of the regulatory standard at 30 C.F.R. 

§ 75.200 that provides "no person shall proceed beyond the last 

permanent support unless adequate temporary support is provided, 

or unl~ss such temporary support is not required under the 

approved roof control plan and the absence of such support will 

not pose a hazard to the miners" (Tr. 8). 

Motion to Dismiss 

In a Motion to Dismiss filed with his Answer, 

Respondent Miracle states six grounds for dismissal, namely: 

1. Respondent has not been served with a duly authorized and 

issued citation or order as required under section 104 of the 

Act. 

2. The petition cites no material or relevant citation or order 

issued against Respondent as required by 29 C.F.R. § 2700.27. 

3. Respondent has been denied due process in that he has been 

deprived of the right to contest a citation or order as provided 

in section 105(a) of the Act and 29 C.F.R Sections 2900.20 et. 

seq. 

4. Petitioner has violated its own regulations in proposing to 

assess a civil penalty without having first reviewed the citation 

or order as provided in 30 C.F.R. § 100.2. 

5. The citation/order attached to said petition was fully 

disposed of in a civil penalty action brought against the 

operator and petitioner is estopped to seek additional penalties. 

6. Petitioner is guilty of laches in seeking a civil penalty in 

this cause in tha~ an unreasonable length of time has elapsed and 

Respondent has materially changed his position. 

Mr. Miracle cites no legal authority for his proposition 

that a respondent in a proceeding under section llOCc> of the Act 

must be served with a citation pursuant to section 104 of the Act. 

Indeed the provisions of section 104(a) of the Act specifically 

limit the issuance of citations to "an operator of a coal or 

641 
other mine". See also Secretary of Labor v. Kenny Richardson, 3 

FMSHRC 8 (1981), aff'd 689 F.2d 632 (6th Cir. 1982), cert. 

denied, 461 U.S. 928 (1983). The contention is without merit. 

Respondent Miracle alleges, secondly, that the Petition for 

Civil Penalty in this case "cites no material or relevant 

citation or order issued against [him] as required by 29 C.F.R. 

2700.27". The short answer is that Commission Rule 27, 29 C.F.R 

§ 2700.27 is limited by its own terms to proposed assessments of 

civil penalties against mine operators. There is no similar 

requirement for cases under section llO(c) of the Act. This 

contention is therefore also without merit. I note however that, 

in any event, the Respondent herein was served with a copy of the 

citation issued to the mine operator and which provided the basis 

for the proceedings against him under section llO(c) of the Act. 

Respondent claims, thirdly, that he was denied due process 

"in that he has been deprived of the right to contest a citation 

or order as provided in section 105Ca) of the Act and 29 C.F.R. § 

2900.20 et. seq." Section 105Ca) of the Act is again however 

specifically limited to citations or orders issued to the mine 

operator and not to individuals in proceedings under section 

llO(c) of the Act. In any event the Respondent has had, contrary 

to his allegation, the opportunity in these proceedingi to 

contest the underlying violation charged in the citation against 

the mine operator. See Richardson, supra. 3 FMSllRC 8 at p.10. 

Respondent maintains, fourthly, that "Petitioner has 

violated its own regulations in proposing to assess a civil 

penalty without having first reviewed the citation or order as 

provided in 30 C.F.R. § 100.2." Respondent has failed to prove 

as a factual matter that the Secretary did not indeed perform a 

review pursuant to her own regulations under 30 C.F.R. § 100. 

Indeed the Secretary denies the allegation. In any event 

Respondent cites no authority for the proposition that the 

Secretary must first review a case under section 110(~) of the 

Act pursuant to those regulations before initiating an action 

before this independent Commission. Indeed I do not find that it 

is a statutory precondition to the instant proceedings. 

Respondent maintains, fifthly, that "the citation/order 

attached to said Petition was fully disposed of in a civil 

penalty action brought against the operator and Petitioner is 

estopped to seek additional penalties". It is not disputed that 

Peabody Coal Company, the corporate mine operator, has already 

paid a civil penalty for the violation of 30 C.F.R. § 75.200 

cited in Order/Citation No. 2819724. However the Commission has 

held that these separate proceedings against the corporate agent 

under section llO(c) of the Act are not foreclosed by the 

642 
separate action against the corporate operator. Richarson, 

supra., 3 FMSHRC at 10-11. 

Finally Respondent alleges that "Petitioner is guilty of 

laches in seeking a civil penalty in this cause and that an 

unreasonable length of time has elapsed and Respondent has 

materially changed his position". Respondent has failed to 

support this allegation with any evidence that he has "materially 

changed his position" as a result of any alleged delay in 

bringing the instant action. In any event the Federal Government 

is not affected by the doctrine of laches when enforcing a public 

right. See Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 

(1977); Under the circumstances the Motion to Dismiss is denied. 

The Merits 

Wolfgang Kaak, an inspector for the Federal Mine Safety and 

Health Administration CMSHA) was conducting a spot inspection of 

the Peabody Coal Company Eagle No. 2 Mine on the morning of 

May 28, 1986, when he learned of a rock fall at the tail piece of 

the 1 South Belt. Unable to obtain a clear view from the west 

side of the fall because of obstruction from the fall material, 

Kaak viewed the area from the east side of the fall through a 

mandoor. Kaak observed material still "dribbling down" from the 

roof, observed that the rib on the left side was r.agged and loose 

and that the fall area came to within one or two feet of the rib. 

Kaak also saw that a roof bolt remained in the brow and that 

there were cracks in the cross-cut on the far side. (See Exhibit 

R-2). Kaak also observed that the distance between the remaining 

roof bolts was 13 feet 3 inches in the area of the roof fall. 

The roof control plan required bolts at 5 foot centers beginning 

5 feet from the ribs. 

Later, while standing 50 feet to the east of the mandoor Cat 

point Don Exhibit R-2), Kaak saw what appeared to be a caplight 

emerge from the mandoor. It turned out to be the Respondent, Mr. 

Miracle. Miracle admitted that he had passed from the south 

cross-cut through to the east belt. Kaak asked: "Kenny was that 

area bolted?" and Miracle purportedly responded "yes it was". 

Later at a meeting in the.mine superintendent's office Kaak asked 

Miracle: "did you go through that area of unsupported roof?", 

and Miracle allegedly replied "Yes, I hugged the ribline and 

thought I was in a safe position". 

Miracle also admitted at hearing that he had proceeded that 

morning through the general area of the rock fall but had "hugged 

the left rib from point B to A" (Exhibit R-2). Miracle explained 

that he first listened to determine that the top was not working 

and then proceeded into the subject area on his stomach. He then 

turned over on his side to look back at the south brow to examine 

643 
the crack to determine the length of roof bolt needed to go 

through the brow. Miracle testified that as he passed through 

the area he also checked the east brow. The roof in that 

location was only about 3 feet high because of the debris and it 

took less than 3 minutes to pass through. Miracle testified that 

he felt he was protected by the adjacent rib and that the roof 

support was in fact the rib itself. He further described the 

area between the rib and the edge of the rock fall as some 2 feet 

to 3 feet and the actual distance traversed was about 8 feet 

along this rib. Miracle claims that it was necessary for him to 

proceed out in the rock fall area as the only way to determine 

the length of bolts to place in the brow to enable work to 

resume.- Miracle claims that when asked by Kaak if he had come 

through the unsupported fall area he responded "no, I came along 

the rib line". Miracle testified that it was not unsafe for him 

to travel that route but conceded that he would "not probably" 

have sent someone else into the area. 

There is no dispute in this case that the Respondent was, as 

assistant mine superintendent, an agent of the corporate mine 

operator. The issue is whether he knowingly carried out a 

violation of the mandatory standard cited in this case i.e. 30 

C.F.R. § 75.202. In this regard I place significant weight on 

Inspector Kaak's testimony that in response to his question at 

the meeting in the mine superintendent's office shortly after the 

issuance of the citation: "did you go through that area of 

unsupported roof?"; Miracle responded "yes, but I hugged the 

ribline and thought I was in a safe position". Although in 

testimony at hearing Miracle essentially denied making that 

statement, it is apparent that by the date of hearing he had 

ample opportunity to reflect upon and change the damaging aspects 

of that prior statement. He also had opportunity to call others 

present at that meeting as corroborating witnesses at hearing but 

failed to do so. Under the circumstances I find Inspector Kaak's 

testimony as to Miracle's admission to be fully credible. This 

admission in itself is sufficient to prove that Miracle violated 

the cited standard and that he did so "knowingly". 

I also note in this case that Miracle testified that he 

would "not probably" have sent any other mine personnel into the 

rock fall area he traversed. Accordingly it may reasonably be 

inferred from this testimony that Miracle, as a reasonably 

prudent person familiar with the mining industry and protective 

purposes of the standard, would not have sent anyone into the 

subject area because it was not safe for the reason that it was 

not properly supported within the meaning of section 75.200. See 

Secretary of Labor v. Canon Coal Co., 9 FMSHRC 667 (1987). This 

evidence also supports the reasonable inference that Miracle, 

"knowlingly" violated the standard. 
In light of Inspector Kaak's testimony that the roof was 

still "working", with rock material dribbling down from the area 

of the rock fall and that the adjacent rib was ragged, loose and 

with cracks, it is readily appa~ent that the violation was of the 

highest gravity. This finding is corroborated by Miracle's 

acknowledgment that he would not have sent anyone else though 

this area. 

In assessing a civil penalty in this case I have considered 

the evidence that other Peabody supervisory personnel, who were 

the subject of Federal criminal indictments for similar 

violations at the same mine, had been placed on a 

probat1onary-type status through a pretrial diversion agreement. 

I nevertheless believe that a civil penalty is appropriate in 

this case because of the flagrant nature of this violation and in 

the presence of other miners. The Respondent thereby 

demonstrated a contemptuous disregard for a significant safety 

regulation and set an improper example for his subordinates. 

Moreover by placing himself in a dangerous position in an area of 

unsupported roof, Miracle was creating a potentially serious 

hazard not only to himself but to others who might be called upon 

to rescue him in the event of a further roof fall. 

Under the circumstances I find that a civil penalty of $200 

is appropriate. 

ORDER 

Kenneth B. Miracle is hereby directed\~o pay a civil penalty 

of $200 within 30 days of the date of this \ecision. 

Distribution: 

0 \ \. (,' ( 

\_.. ',, ~'---"--/ \'v ·~ , '{_J{ 

/

Gary Melick "\. 

Administrativ Law Judge 

(703). 756-626 

i 

\ : 

\ 

Edward H. Fitch, Esq., Office of the Solicitor, u. s. Department 

of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203 

(Certified Mail) 

Davids. Hemenway, Esq., Peabody Coal Company, Inc., 201 N. 

Memorial Drive, P. O. Box 373, St. Louis, MO 63166 (Certified 

Mail) 

npt 

645 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SK.YLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 5 1988 

SEC.RETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

J & K CONSTRUCTION COMPANY, 

Respondent 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 87-61 

A.C. No. 46-01433-03505 -S46 

Loveridge Mine 

Appearances: William T. Salzer, Esq., Office of the Solicitor 

U.S. Department of Labor, Philadelphia, PA, for 

Petitioner~ 

William A. Johnson, Esq., Washington, PA, for 

Respondent. 

Before: Judge Fauver 

This civil penalty proceeding was brought by the Secretary 

of Labor uQder the Federal Mine Safety and Health Act of 1977, 30 

C.F.R. § 801 et ~ 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, reliable, 

and probative evidence establishes the following: 

FINDINGS OF FACT 

Order 2698660 

1. On September 19, 1986, MSHA Inspector Wayne Fetty 

inspected a worksite under the control of Respondent, a 

subcontractor, at the Loveridge Mine No. 22. Respondent was 

performing metal sheeting work on the outer walls of a 

preparation plant. 

2. Inspector Fetty inspected three scaffolds used by 

Respondent at the Loveridge worksite. Each scaffold was an 

electrically powered "working platform" (or hoist) used by two 

individuals to raise and lower themselves alongside a building. 

At the time of the inspection no workers were on the scaffolds 

because of a work stoppage after an accident. 

3. The scaffolds were 15 to 75 feet above ground, suspended 

from outrigger beams on the roof. Two outrigger beams were used 

646 
for each scaffold. Counterweights on the outrigger beams 

balanced the weight placed on the scaffolds; The counterweights 

were concrete discs held on a retaining rod. 

4. On September 19 Inspector Fetty .observed seven scaffold 

rope hooks with defective safety latches in that a spring 

operated latch was missing or broken. He found a hazardous 

condition for each latch because of the possibility that the 

scaffold rope would slip off the hook attached to the outrigger 

beam. 

5. The September 18 entries in Respondent's examination 

book did not mention defective safety latches. The book 

contained safety checklists that were to be filled in by the 

examiner and countersigned by a supervisory official. However, 

no one countersigned the examination book on September 18 and as 

a matter of policy and practice, the lead sheeters conducted 

inspections of the scaffolds and rigging but the foreman made the 

entries and signed the book in the place for the examiner. The 

foreman had not been informed by the lead sheeter that the safety 

latches were missing or defective. As a result of investigations 

by MSHA prior to September 18, 1986, Respondent was placed on 

notice of the necessity for thorough daily examinations of the 

scaffolding equipment. 

6. Inspector Fetty found that the counterweight assembly 

for Scaffold No. 1 did not hqve a pin for the retainer rod. A 

missing pin creates a hazardous situation. If the counterweight 

assembly were tipped to one side, the weights could slip off the 

retainer rod and the beams and scaffold could fall to the ground. 

At the time of inspection, Scaffold No. 1 was about 75 feet above 

ground. Respondent asserted at the hearing that the scaffold was 

going to be moved and that the retainer pin had been removed for 

the purpose of relocating the counterwights, but there was no 

evidence or claim of an intended move at the time of the 

inspection. The missing pin was was not recorded in the hoist 

inspection book on September 18. 

7. Inspector Fetty observed that No. 2 Scaffold, which was 

about 15 feet above ground, was missing a backrail. The function 

of the backrail is to prevent persons from falling backwards off 

the scaffold. The missing backrail was not noted in the 

examination book for September 18. The foreman had not been 

informed by the lead sheeter that the backrail was missing. 

8. Based upon his findings of safety defects in the 

scaffolds and rigging, and his inspection of the examination book 

for September 18, Inspector Fetty issued Order 2698660, which 

charges a violation of 30 C.F.R. § 77.1403 based upon the 

following "Condition or Practice": 

According to the records entered in the approved book 

9-18-86 of the daily inspections of the powered 

scaffolding, used by sheathing personnel, are 

647 
inadequate in that upon my inspection of the 

scaffolding the following conditions was observed. The 

safety devices for the hooks attached to the outrigger 

beam located on the 7th floor roof is missing, the 

missing device is required to prevent the attached rope 

or cable from slipping off the hook. The two required 

hooks on each of the scaffolds were found the same way 

(Safety latches missing a total of seven) the bottom 

scaffold is not provided with a back guard to prevent a 

worker from falling, this scaffold is about 14 feet 

above the ground. The outrigging device installed on 

tbe seventh floor is not provided with pins to keep the 

counterweights from falling off should the outrigger 

beams turn sideways. A complete inspection of the 

scaffolding shall be made and the findings recorded in 

the approved book. Huey Kowcheck is the responsible 

foreman. The area is the Ludridge coal preparation 

plant. 

Order 2698946 

9. On September 18, 1986, MSHA Inspector Homer Delovich 

inspected Respondent's worksite at the Loveridge Mine No. 22 

preparation plant. He was called to the worksite after being 

informed of an accident there that morning. 

10. At the time of the inspection no workers were on the 

scaffolds because of a work stoppage after the accident. 

Respondent's contract work was to replace the sheeting on the 

outside of the preparation plant. Work began around 7:00 a.m. 

On the morning of September 18 John Carlisle and Dick Guthrie 

were working in the area of the Nos. 1, 2, and 3 scaffolds shown 

on Government Exhibit No. 9. Mr. Kowcheck was the foreman for 

the entire worksite. Inspector Delovich arrived at the worksite 

between 9:45 and 10:00 a.m. The accident occurred about 9:30 

a.m. 

11. No protection against falling objects was provided to 

persons working or traveling under Scaffold Nos. 1, 2 and 3. 

Individuals were exposed to the hazard of being hit by falling 

tools, equipment or aluminum sheeting. The area underneath 

Scaffolds Nos. 1 and 2 was traveled frequently by employees 

entering or leaving the preparation plant through the lunchroom 

door or equipment doors. This area was not roped off and danger 

signs were not provided. Inspector Delovich observed these 

conditions before the arrival of the ambulance (at 10:10 a.m.) 

and the removal of the accident victim from the worksite. 

12. Respondent was informed by MSHA on prior occasions of 

the necessity of protecting persons from falling objects from 

scaffolds. 

648 
Order 2698945 

13. On September 18, 1986, Inspector Delovich observed that 

Scaffold No. 2 (Gov. Ex. 9) was resting on top of a tin canopy 

structure that partially covered an elevated conveyor belt. The 

tin canopy was bordered by a walkway along the belt. A 

preponderance of the reliable evidence indicates that the 

sheeters climbed on the canopy below the scaffold to board or 

exit No. 2 Scaffold. 

Order 2698947 

15. On September 19, 1986, Inspector Delovich observed that 

No. 3 scaffold was located directly beneath an elevated belt 

conveyor. 

16. Workers on No. 3 Scaffold were exposed to a hazard of 

being struck by broken conveyor belting in the event of an 

accident or malfunction of the conveyor above them. Broken belt 

sections could fall through the structure housing the conveyor 

and strike. a worker on the scaffold. This condition exposed 

workers to a risk of serious injuries. 

17. The foreman, Huey Kowcheck, had directed an 

employee, Scott Morgan, to install a water deflector above 

Scaffold No. 3 so that sheeters would not be hit with water 

draining off the conveyor belt. Mr. Kowcheck indicated to MSHA 

Inspector Paul Moore that the belt was running while sheeters 

were working on the No. 3 Scaffold. 

DISCUSSION WITH FURTHER FINDINGS 

Order 2698660 

This order cites a violation of 30 C.F.R. § 77.1403 on the 

ground that an adequate examination had not been made of the 

three scaffolds on September 18, 1986. The inspector found a 

number of unsafe conditions but these were not reported in the 

required examination book and the person who signed the book was 

not the examiner who actually made the inspection. Inspector 

Fetty testified that the unsafe conditions included missing 

safety latches for the suspension ropes on the three scaffolds, a 

missing retaining pin for a counterweight assembly on one 

scaffold, and a missing backrail for another scaffold. None of 

these conditions was reported in the examination book. 

Respondent acknowledges fault for one missing safety latch, 

for a well wheel hoist that transported parts and equipment to a 

scaffold (Tr. 159-160), but contends that the six outrigger beams 

were missing safety latches intentionally because they were not 

required. Inspector Fetty disagreed, and testified that he 

observed hooks that did not have a required spring safety latch 

and that when he told the foreman of this the foreman showed him 

hooks with safety latches that were available but had not been 

installed. 

649 
I accept the inspector's testimony that required safety 

latches for hooks used to suspend the scaffolds were missing or 

broken. 

With respect to the missing pin for the retaining rod, 

Respondent contends that the pin had been removed in order to 

move the scaffold. The inspector tescif ied that the two 

outrigger beams were approximately parallel and there was no 

evidence or statement during the inspection of plans to move the 

scaffold. The post-inspection explanation of Respondent as to 

the missing pin is not persuasive. There was ample opportunity 

for Respondent to offer an explanation as to the missing pin at 

the time the inspector was there, so that the inspector could 

have investigated the explanation by interviewing witnesses and 

verifying their statements against the physical evidence. 

Respondent failed to use this evidentiary opportunity and has not 

effectively rebutted the inspector's testimony on this point. 

Similarly, the missing backrail was not explained by 

Respondent at the time of the inspection, and its post-inspection 

explanation is not found persuasive. 

Respondent acknowledges that its policy was to have the 

foreman sign the examination book and not make the safety 

inspections himself (occasionally he made an inspection) (Tr. 

203). This practice does not comply with the requirements of 30 

C.F.R. §§ 1403 and 1404, which are interrelated. Section 1403 

requires daily examinations of hoists and § 1404 provides that 

"the person making the [§ 1404] examination shall certify, by 

signature and date, that the examination has been made" and "If 

any unsafe condition is found ••• the person conducting the 

examination shall make a record of the condition and the date." 

Neither of these requirements was met by Respondent, with the 

result that an adequate examination within the meaning of § 1403 

was not made on September 18, 1986. This violation was serious 

because the purported examination signed by the foreman gave the 

erroneous representation that the hoists were safe when in fact 

there were serious safety defects. Given the background of prior 

accidents, investigations and clear notice to Respondent of the 

necessity for thorough, accurate safety examinations of the 

hoists, I find that Responden't violation was unwarrantable. 

Considering all of the criteria for a civil penalty under 

§ llO(i) of th~ Act, I find that a civil penalty of $800 is 

appropriate for this violation. 

650 
Order 2698946 

The inspector arrived at the accident site before the 

ambulance arrived. He saw no evidence of a danger sign or rope 

to keep people from the area beneath Scaffolds Nos. 1 and 2. 

Those scaffolds were being used for overhead work before the 

accident. 

Respondent's witness Raymond Jennings testified that the 

area had been roped off with a danger sign on September 16 and 

17, but he was not there on September 18. Respondent's witness 

Michael Cruny testified that the area was roped off with a danger 

sign tfie morning of September 18, but the inspector saw no 

evidence of a rope or danger sign when he arrived. I accept the 

inspector's testimony, and find that the inspector reasonably 

concluded that the area beneath active scaffolds was not 

protected from falling objects. This was a serious and 

unwarranted safety hazard in violation of § 77.203. 

Considering all of the criteria for a civil penalty in 

§ llOCi) of the Act, I find that a civil penalty of $300 is 

appropriate for this violation. 

Order 2698945 

The inspector was justified in finding that employees were 

boarding and exiting No. 2 Scaffold by climbing on top of a tin 

canopy. This was not a safe means of access to or from a working 

place. Respondent contends that each employee was protected by a 

life line. However, a life line is not intended as a meams of 

access to or from a scaffold and does not justify subjecting 

employees to falling hazards by unsafe access means. This was a 

serious and unwarranted violation of § 77.205. 

Considering all of the criteria for a civil penalty in 

§ llOCi) of the Act, I find that a civil penalty of $500 is 

appropriate for this violation. 

Order 2698947 

Section 77.400(b) of 30 C.F.R. provides that "Overhead belts 

shall be guarded if the whipping action from a broken line would 

be hazardous to persons below." Respondent violated this section 

by assigning employees to work on a scaffold directly beneath a 

running, unguarded conveyor belt. 

During his inspection, the inspector asked the foreman 

whether the belt was running when employees were assigned to work 

on the scaffold beneath the belt and he said, "Yes, the belt was 

running." Tr. 449. It was not necessary for the Government to 

prove that the belt had been running when employees were on the 

651 
scaffold. It was sufficient to show that, had work progressed 

without the intervention of the Federal irispection, the employees 

would, in reasonable probability; be subjected to the hazardous 

condition cited. This was a serious and unwarranted safety 

hazard in violation of§ 77.400(b). 

Considering all of the criteria for a civil penalty in 

§ llO(i) of the Act, I find that a civil penalty of $300 is 

appropriate for this violation. 

CONCLUSIONS OF LAW 

1: The undersigned judge has jurisdiction in this 

proceeding. 

2. Respondent violated the safety standards as charged in 

Orders 2698660, 2698945, 2698946, and 2698947. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Respondent shall pay the above civil penalties of $1,900 

within 30 days of this Decision. 

2. The Secretary's motion to withdraw the charge of a 

violation in Order 2698948 is GRANTED, and that charge is 

DISMISSED. 

Distribution: 

tV~?-~vVL William Fauver 

Administrative Law Judge 

William T. Salzer, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

William A. Johnson, Esq., 8 East Pine Street, Washington, PA 

15304 (Certified Mail) 

kg 

652 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

JERRY DALE ALESHIRE, 

ROY E. CHAMBERS, 

CLYDE W. COLIN, 

DENIS R. GILLIAM, 

RICKY RAY ROE, 

WILEY R. KENT, 

JOHN E. NEWMAN, 

MAY 1O1988 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 84-344-D 

HOPE CD 84-6 

Farrell No. 17 Mine 

Complainants . . v. 

WESTMORELAND COAL COMPANY, 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA), 

Intervenor 

. . 

. . 

DECISION 

Appearances: Frederick w. Moncrief, Esq., Office of the 

Solicitor, U.S. Department of Labor, Arlington, 

Virginia for Complainants: F. Thomas Rubenstein, 

Esq., Big Stone Gap, Virginia, and Thomas C. Means, 

Esq., Crowell & Moring, Washington, D.C. for 

Respondent: Mary Lu Jordan, Esq., Washington, D.C., 

for Intervenor, United Mine workers of America. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

On August 2, 1984, the Secretary of Labor (Secretary) 

brought this complaint under section 105{c) of the Federal Mine 

Safety and Health Act (Act) on behalf of seven l; miners who 

1/ The Secretary filed a motion on October 2, 1984, to remove 

the name Robert L. Harmon and add the name Ricky Ray Roe to the 

list of Complainants. The motion apparently has not been acted 

upon. I hereby grant the motion. 

653 
worked as surf ace miners in the subject mine until they were 

laid off on December 17, 1982. The matter was stayed after the 

answer was filed, pending decisions in the case of Emery Mining 

Co. v. Secretary of Labor in the 10th Circuit Court of 

Appeals,and in the case of Rowe v. Peabody Coal Company, before 

the Review Commission. The case was assigned to me on October 3, 

1986. After the decisions in the Emery case and the Rowe v. 

Peabody case, this proceeding was further continued because the 

parties were attempting to stipulate as to the facts. On 

December 23, 1987, the parties filed Stipulations of Fact and 

submitted the case for decision as to the question of liability 

on the basis of the stipulations. The parties have agreed that 

if the issue of liability is decided in Complainants' favor, they 

would endeavor to stipulate on "the appropriate damages award." 

The Secretary filed a Motion for Summary Decision and a 

Memorandum in Support of the Motion on February 29, 1988. 

Respondent filed a Cross-Motion for Summary Decision and a 

Memorandum in Support thereof on April 12, 1988. 

FINDINGS OF FACT 

I accept the stipulations as the facts in this case. I note 

that the briefs filed disagree as to the cause of the layoff in 

December 1982: the Secretary asserts that it resulted from a 

disaster at the mine necessitating indefinite cessation of mining. 

Respondent states that the layoff was the result of weak market 

conditions which caused the mine to be idled in December 1982, 

and that the disaster had occurred in November 1980. I do not 

consider that a resolution of this dispute is necessary for my 

decision in this case. Both of the parties state in their 

memoranda that Complainant Newman had been employed as an 

experienced underground miner on October 13, 1978, when 30 C.F.R. 

Part 48 became effective and was therefore "grandfathered" and 

did not need the training which he received to be eligible for 

recall to an underground position. These facts are not included 

in the stipulation, but I accept them as facts in the case. 

Each of the Complainants was employed at the subject mine in 

surface positions for three or more years prior to 

December 17, 1982. Each had underground mining experience prior 

to working on the surface, but only Complainant Newman was 

working as an experienced underground miner on October 17, 1978. 

On December 17, 1982, Complainants were laid off from their 

surface mining. positions. After the lay off, Respondent advised 

miners at a union meeting, attended by one or more of the 

Complainants, that they would require new miner underground 

training before they could work underground. Respondent 

suggested that to improve their chances for recall, "they would 

654 
be well-advised" to obtain such training on their own time and at 

their own expense. 

In May and June 1983, Complainants obtained new miner 

underground training at the Boone County Career and Technical 

Center. The training was paid for by the County Board of 

Education except as to Newman and Gilliam, "each of whom claim 

they paid $20." 

On October 21, 1983, Complainants were recalled to 

Respondents Hampton No. 3 Mine in underground positions. Under 

the governing labor contract, miners are entitled to be recalled 

in accordance with seniority, but seniority presumes the ability 

to perform the work of the awarded job, which includes having all 

necessary training. As of October 21, 1983, Complainants would 

have been eligible for recall to surface positions without 

additional training. Except for Newman, they would not have been 

eligible for recall to underground training as of October 21, 

1983, had they not taken the underground training referred to 

above. 

On December 21, 1983, Complainants filed a complaint with 

the Secretary alleging that Respondent discriminated against them 

by not providing or paying them for the underground training 

referred to above. They seek an order requiring Respondent to 

pay them for the 40 hours which they spent taking the underground 

training course. 

ISSUES 

1. Whether miners laid off from surface mining jobs who 

obtained training while on layoff at the mine operator's 

suggestion, which training is required for reemployment in 

underground jobs, are entitled to compensation from the mine 

operator for the time and expenses of such training after being 

recalled to underground jobs? 

2. Whether a miner laid off from a surface mining job who 

obtained training at the mine operator's suggestion, which 

training he did not require for reemployment in an underground 

job, is entitled to compensation from the mine operator for the 

time and expenses of such training after being recalled to an 

underground job? 

3. Whether the failure by a mine operator to reimburse 

miners for required safety training under section 115 of the Act 

is a violation of section 105{c) of the Act? 

655 
CONCLUSIONS OF LAW 

STATUTORY OBLIGATION 

Under section 115 of the Act, mine operators are required to 

have an approved health and safety training program, which, among 

other things, must provide that new miners having no underground 

. mining experience shall receive no less than 40 hours of training 

if they are to work underground. Section 115 requires also that 

such training shall be provided during normal working hours, and 

miners shall be paid at their normal rate of compensation while 

they take such training. New miners must be paid at their 

starting wage rate. 

PART 48 REGULATIONS 

Pursuant to the mandate of section 115, the Secretary 

promulgated training and retraining regulations effective 

October 13, 1978. 30 C.F.R. Part 48. Subpart A is concerned 

with underground miners. It defines a new miner as one not 

employed as an underground miner on the effective date of the 

rules, and who has not received training acceptable to MSHA from 

an appropriate State Agency, or in accordance with the 

requirments of § 48.5, within the preceding 12 months, and who 

has not had at least 12 months experience working in an 

underground mine during the preceding three years. 

Section 48.10 repeats the requirements of § 115 of the Act 

that training be provided during normal working hours and that 

miners attending such training be paid at their normal rate of 

compensation, which is defined as the rate of pay they would have 

received had they been performing their normal work tasks. If 

the training is given at a location other than the normal place 

of work, miners shall be compensated for the additional costs, 

such as mileage, meals, and lodging incurred in attending the 

training sessions. 

The term "miner" for the purposes of §§ 48.3 through 48.10 

is defined as "any person working in an underground mine and who 

is engaged in the extraction and production process, or who is 

regularly exposed to mine hazards, or who is a maintenance or 

service worker contracted by the operator to work at the mine for 

frequent or extended periods." The regulations do not refer to 

laid-off miners or to applicants for underground mine employment. 

EMERY 

In the case of Emery Mining Corporation, 5 FMSHRC 1391 

(1983), the Review Commission held (1) the policy of requiring 

job applicants to have training as a qualification for employment 

656 
is not a per se violation of the Act; and (2) the refusal of the 

mine operator to reimburse newly hired miners for the time spent 

in training and costs of training, while relying on the training 

to fulfill the operator's obligations under section 115, is a 

violation of the Act. The 10th Circuit Court of Appeals reversed 

the Commission in the case of Emery Mining Corporation v. 

Secretary of Labor, 783 F.2d 155 (10th Cir. 1986). The Court 

held that because the applicants for employment were not miners 

as defined in the Act, they were not entitled to compensation for 

the time spent or the costs incurred in the training they 

received before being employed. 

PEABODY AND JIM WALTER 

Before the 10th Circuit decision in Emery, the Commission 

issued its decisions in the Peabody Coal Co. case, 7 FMSHRC 1357 

(1985) and the Jim Walter Resources case, 7 FMSHRC 1348 (1985). 

In the former case, it held that Peabody's policy requiring 

laid-off miners to obtain necessary training prior to rehire did 

not violate section 115 of the Act. This was grounded on the 

theory that laid-off individuals are not miners protected under 

section 115 until they are rehired. The Commission declined to 

treat laid-off miners differently for this purpose from 

applicants for employment, or to interpret the requirements of 

section 115 in the light of the collective bargaining contract 

between the mine operator and the union. The Commission further 

concluded that section 115 requires an operator to reimburse 

rehired miners for the expenses of their training "if it relies 

upon the prehire training of those whom it rehires to satisfy its 

statutory training obligations with respect to 'new miners'." 

Peabody, at 1364. Peabody had fulfilled this obligation. In Jim 

Walter (JWR), the Commission addressed the same issues. It 

repeated its determination that the operator did not violate the 

Act in by-passing for hire laid-off individuals who lack required 

training. It also affirmed the ALJ's decision which required JWR 

to reimburse the rehired miners who had obtained such prehire 

training for the time and expense of the training. The Secretary 

appealed the Commission decisions that Peabody and JWR did not 

violate the Act in refusing to recall laid off miners because 

they lacked the required training. JWR did not appeal the 

Commission decision that JWR violated the Act by refusing to 

compensate recalled miners for the time and expense of training 

taken while on layoff. The Court affirmed the Commission 

decisions. Brock v. Peabody Coal Co., 822 F.2d 1134 (D.C. Cir. 

1987). The Court stated that "the success of the Secretary's 

argument depends almost entirely on whether the individuals 

passed over qualified as 'miners' under section 115 while on 

layoff." Id., at 1140. The Court affirmed the Commission 

holding that laid off employees were not "miners" even though 

they might be "contractually entitled to employment," i.e., 

657 
employees on layoff entitled to recall without reference to 

training status. 

In the case of Secretary/Beavers v. Kitt Energy Corporation, 

8 FMSHRC 1342 (1986), Commission Judge Maurer held that a mine 

operator who laid off surface miners, with seniority and the 

technical ability to perform available underground jobs, solely 

because they lacked the additional training required under Part 

48, was in violation of the Act. On March 17, 1988, the 

Commission in an open meeting voted to reverse this decision. 

See 9 Mine Safety and Health Reporter, Current Report at p. 627 

(March 18, 1988). The Commission decision has not been issued as 

of this date. 

The statute and the case law make clear (1) a mine operator 

who hires an untrained 2; miner must provide training; (2) a mine 

operator may hire a miner (newly hired, not on lay-off) who has 

received training on his own without compensating him for the 

time and expense of training; (3) "work assignments" made by an 

operator based on a miner's training status are permissible, 

i.e., a miner may be laid off if he lacks training required for 

available positions; (4) a mine operator is not required by the 

Act to provide safety training for a laid off miner who requires 

such training for recall. The remaining question is whether a 

mine operator is required to compensate recalled miners for 

necessary safety training taken during layoff. More narrowly, 

are miners covered by a labor agreement who are on layoff 

entitled to different treatment under section 115 than new 

applicants for employment? In the Peabody case, the Commission 

declined to look to the collective bargaining agreement to 

determine miners' entitlement under section 115. I find nothing 

in the Act, the regulations or the case law which would permit me 

to treat differently under section 115, miners laid off with 

contractual recall rights and new applicants for employment. In 

Peabody the Commission held that "nothing mandates that we go 

beyond the Act and the legislative history to determine whether 

laid off individuals are entitled to section 115 safety training." 

7 FMSHRC at 1364. Similarly, nothing mandates going beyond the 

Act and legislative history to determine whether individuals 

recalled from layoff are entitled to compensation for section 115 

training. Neither miners on layoff nor applicants for mine 

employment. are "miners" for whom the mine operator is required to 

provide health and safety training, or to reimburse for the time 

and expense of training taken on their own. To the extent that 

this interpretation "would result in the effective elimination of 

2/ In using the words training here, I am referring to the 

health and safety training mandated by section 115. 

658 
section 115 and the total frustration of the intent of Congress" 

(Secretary's brief, p. 8), the remedy, as the Court of Appeals 

said in Brock v. Peabody, supra, lies with Congress. 

Therefore, I conclude that miners laid off from surf ace 

mining jobs who obtained training while on layoff at Respondent's 

suggestion, which training was required for reemployment in 

underground jobs, are not entitled to compensation from the mine 

operator for the time and expenses of such training after being 

recalled to underground jobs. 

Because of this conclusion, it is not necessary to decide 

issues 2 and 3, i.e., whether miner Newman who did not need the 

training is entitled to compensation because he was misled by 

Respondent into thinking he did require it, and whether a 

violation of section 115 by refusing to pay compensation for 

training constitutes adverse action against the miners which can 

be remedied under section 105(c). 

ORDER 

Based on the above findings of fact and conclusions of law 

IT IS ORDERED: 

Cl) The Secretary of Labor's Motion for Summary Decision is 

DENIED; 

(2) Respondent's Motion for Summary Decision is GRANTED; 

(3) This proceeding is DISMISSED. 

7 •• 

// , t' j .J/l 4.' ~I·? [' t i a.. v~u...-..) /'r I:_,," ,, de' .... t.>/C 

~ James A. Broderick 

Administrative Law Judge 

Distribution: 

Frederick W. Moncrief, Esq., U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd., Arlington, Va 22203 (Certified 

Mail) 

F. Thomas Rubenstein, Esq., P.O. Drawer A&B, Big Stone Gap, VA 

24219 (Certified Mail) 

Thomas C. Means, Esq., Crowell & Moring, 1001 Pennsylvania Ave., 

N.W., Washington, D.C. 20004-2505 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th St., 

N.W., Washington, D.C. 20005 (Certified Mail) 

slk 

659 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 121988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NORTH AMERICAN SAND AND 

GRAVEL CO., 

Respondent 

. . 

DECISION 

Docket No. LAKE 88-7-M 

A.C. No. 11-02666-05501 

Vandalia Mine 

Appearances: Miguel J. Carmona, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, for 

the Petitioner; 

Charles w. Barenfanger, Jr., President, North 

American Sand and Gravel Co., Vandalia, Illinois, 

pro se. 

Before: Judge Maurer 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration (MSHA), charges respondent with a violation 

of the safety regulations promulgated under the Federal Mine 

Safety and Health Act, 30 u.s.c. § 801 et seq., (the Act). 

After notice to the parties~ a hearing was held on the 

merits at St. Louis, Missouri, on March 28, 1988. 

Gene Upton, a mine inspector employed by MSHA, had occasion 

on June 25, 1987, to inspect the Vandalia Mine. 

On that occasion he observed a 440-volt power cable which 

was being used to supply electrical power to the pea gravel 

conveyor belt. This power cable had several cracks and breaks in 

the outer layer of its double insulation, which allowed both 

rainwater and sunlight to reach the inner insulation. There was 

wet ground under the cable where it drooped down to within three 

feet of the ground near the steps used to gain access to the 

plant, and the cable was energized at the time the inspector saw 

it. 

660 
The inspector issued S&S Citation No. 3058100 and cited the 

respondent for a violation of 30 C.F.R. § 56.12030 which states 

in its entirety: 

When a potentially dangerous condition is found it 

shall be corrected before equipment or wiring is 

energized. 

The inspector felt that because of the wet conditions under 

the cable where it drooped down within three feet of the ground 

and that people did travel in this area, the fact that the outer 

insulation was missing in places was a potentially dangerous 

condition. I saw the cable in question at the hearing and I 

agree that it is a potentially dangerous condition and is 

therefore a violation of the cited standard. 

I disagree, however, that this violation is a "significant 

and substantial" one. 

A "significant and substantial" violation is described in 

section 104(d)(l) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 30 

C.F.R. § 814(d)(l). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

Labor must prove: Cl) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to 

safety--contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable 

likelihood that the injury in question will be of a 

reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, (1985) the Commission stated further as follows: 

661 
we have explained further that the third element 

of the Mathies formula 'requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury.' U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836, (August 1984). We have emphasized that, in 

accordance with the language of section 104Cd)(l), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984); U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

The facts of this case are to the effect that the interior 

insulation on all the individual wires was still intact and in 

good condition at the time of the inspector's visit. It was the 

outer jacket or the double insulation which was in a deteriorated 

condition. 

The potential hazard involved is electrical shock, but the 

only way for a person to actually receive such a shock would be 

for him to come into contact directly with one or more of the 

bare wires, or if there is sufficient "leakage" through the first 

layer of insulation. The testimony was that the first layer of 

insulation was in good condition and I likewise observed it to be 

so at the hearing. That negates any possibility of a person 

actually touching a bare wire and receiving an electrical shock. 

The other possibility simply fails of proof. The inspector 

testified at (Tr. 27): 

Q. Is there any danger of electrical shock by touching 

a wire like this with the insulation in this condition? 

A. The -- it depends on how good the insulation is. I'm 

not an electrician and I don't have the instruments to tell 

me how much leakage there is through that, and that would be 

the only way I could determine if there's a shock potential 

there, or how much of a shock potential is by putting a 

meter on it, and actually measuring the voltage. 

Therefore, I find and conclude that the record in this case 

establishes a nonsignif icant and substantial violation of the 

cited regulation and I further conclude that a civil penalty of 

$20 is appropriate. 

Conclusions of Law 

1. The Commission has jurisdiction to decide this case. 

662 
2. Respondent violated the mandatory safety standard 

published at 30 C.F.R. § 56.12030 as alleged in Citation No. 

3058100. 

3. The violation was not "significant and substantial" 

within the meaning of the Act. 

4. The appropriate penalty for the violation is $20. 

ORDER 

Citation No. 3058100 is affirmed as nonsignificant and 

substantial and the respondent IS ORDERED to pay a civil penalty 

of $20 to the Secretary within 30 days of the date of this 

decision. 

!Ma,urer /vti~ tiative Law Judge 

Distribution: 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. 

Department of Labor, 230 Dearborn St., 8th Floor, Chicago, IL 

60604 {Certified Mail) 

Charles w. Barenfanger, Jr., North American Sand and Gravel Co., 

P.O. Box 190, Vandalia, IL 62471 {Certified Mail> 

slk 

663 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 12, 1988 

SECRETARY OF LABOR, 

MINE SAFETY ANO HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

JAMES E. BOWMAN, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 88-217-D 

MORG CD 87-19 

Blacksville ~o. 1 Mine 

ORDER APPROVING SETTLEMENT 

ORDER TO COMPLY 

ORDER OF DISMISSAL 

Before: Judge Merlin 

The Secretary on behalf of the complainant has filed a 

motion to withdraw the complaint and to dismiss this proceeding 

on the grounds that a settlement has been reached with the 

respondent. The settlement agreement requires the respondent to; 

(1) pay the complainant $121.72 for lost wages, (2) expunge from 

the personal record of the complainant all reference to the 

illegally issued discipline, (3) post a notice that the 

respondent will not violate section 105(c) of the Act, and (4) 

pay a civil penalty of $800. 

The settlement is APPROVED as in accordance with the 

purposes of the Federal Mine Safety and Health Act of 1977. 

Accordingly, the motion to withdraw is GRANTED and the 

parties, if they have not already done so, are ORDERED to comply with the settlement agreement, including the payment of $121.72 

for lost wages and payment of an $800 civil penalty, within 30 

days from the date of this decision. 

It is further ORDERED that once the parties have complied 

with the settlement agreement this case is DISMISSED. 

- Paul Merlin 

Chief Administrative Law Judge 

664 
Distribution: 

Linda M. Henry, Esq., Office of the Solicitor, U. S. Department 

of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Mr. James E. Bowman, 16 Garfield Street, Westover, WV 26505 

(Certified Mail) 

/gl 

665 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 131988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA}, 

Petitioner 

v. 

TRIPLE B CORPORATION, 

Respondent 

. . 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 87-40 

A.C. No. 15-08382-03502 M75 

Docket No. KENT 87-47 

A.C. No. 15-08382-03503 M75 

South Side Surface Mine 

Appearances: G. Elaine Smith, Esq., Office of the Solicitor, 

U.S. Department of ~abor, Nashville, TN, for 

Petitioner; 

Gary A. Branham, President, Triple B Corporation, 

Prestonburg, KY, for Respondent. 

efore: Judge Fauver 

These consolidated proceedings were brought by the Secretary 

of Labor for civil penalties for alleged violations of safety 

standards under the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et ~ 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, reliable, 

and probative evidence establishes the following: 

FINDINGS OF FACT 

Docket KENT 87-40 

1. On September 30, 1986, Mine Safety and Health 

Administration Inspector Andrew Reed, Jr., conducted an 

inspection at South Side Surface Mine No. 1 operated by the 

Martin County Coal Corporation. While conducting this. 

inspection, Mr. Reed inspected equipment of the Respondent, an 

independent contractor engaged in reclamation work at the site. 

Citation 2776271 

2. A Komatsu bulldozer was not equipped with a reverse 

alarm. 

666 
Order 2776272 

3. A Mack truck used for rock haulage was not equipped with 

an adequate braking system. 

Order 2776273 

4. A Mack truck was not equipped with a reverse alarm. 

Order 2776274 

5. A Mack truck was not equipped with a fire extinguisher. 

Order 2776275 

6. The windshield of a Mack truck contained 11 cracks 

extending from the center divider and tha right side portion was 

badly broken with a 4" x 6" hole near the bottom of the glass. 

Order 2776276 

7. A Mack truck was not equipped with a fire extinguisher. 

Order 2776277 

8. Bryan Childers was observed operating a Mack truck and 

had not received the required miner training prior to being 

assigned work duties. He had not received any training since 

being hired Con September 18, 1986) and according to his 5000.25 

Form, his last training in the industry was annual refresher 

training on March 29, 1985. 

Order 2776278 

9. A Mack truck used for rock haulage was not equipped with 

an adequate braking system in that both the right front and right 

rear wheel brakes were inoperative. The truck was being used on 

a 17% grade. 

Order 2776279 

10. A Mack truck had an equipment defect in that the 

driver's side rear view mirror was broken in three places near 

the bottom of the mirror, causing a distorted side rear view. 

Order 2776280 

11. A Komatsu loader was not equipped with a reverse alarm. 

Order 2784241 

12. A Komatsu loader was not equipped with a fire 

extinguisher. 

667 
Docket KENT 87-47 

Order 2784242 

13. A Komatsu loader, which was equipped with a roll over 

protection system, was not equipped with seat belts. 

DISCUSSION WITH FURTHER FINDINGS 

Respondent contends that its reclamation work was not 

covered by the Act. This same issue was tried between the same 

parties and decided in Secretary of Labor v. Triple B 

Corporation, KENT 87-21 and KENT 87-23 (Judge's Decision, March 

15, 1988). That decision controls here by res adjudicata. I 

hold that Respondent's work at issue was covered by the Act. 

Citation 2776271 and Order 2776273 

Respondent asserts that at the time of the inspection no one 

was on foot in the area of the vehicle that had no reverse alarm. 

I find that this fact does not lower the degree of gravity proved 

by the Secretary. 

Order 2776272 

Respondent contends that the cited vehicle "had enough 

brakes to stop" (Tr. 12), but does not deny that both front 

brakes were inoperative and the brake drums, shoes, chamber and 

air line were missing from the right front wheal, and does not 

deny that the air fitting was plugged off on the right and left 

front wheels and that the left front wheel brakes line was 

missing. I find that the brakes were detective and unsafe as 

charged. 

Orders 2776274, 2776276, and 2776280 

Respondent contends that the purpose of a fire extinguisher 

on a vehicle is to protect the vehicle and that, since the driver 

can escape from the vehicle, the gravity of the violation should 

be lowered to nonserious. I reject this argument. The driver 

could be trapped or injuried, so that his access to a fire 

extinguisher or the access of a rescuer to a fire extinguisher on 

the vehicle could save the driver's life or lessen burn injuries 

in a fire emergency. 

In Consolidation Coal Corporation v. FMSHRC, 824 F. 2d 

1071, 1085 (D.C. Cir. 1987, the court stated: 

The legislative history of the Federal Mine Safety 

and Health Amendments Act suggests that Congress 

intended all except "technical violations" of 

668 
mandatory standards to be considered significant 

and substantial. The 1977 amendments redesignated 

§ 104(c) of the Coal Act as § 104(d) of the Mine 

Act without substantive change. 

In Secretary of Labor v. Mathies Coal Co., 6 FMSHRC 1, 3 (1984), 

the Commission stated: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gyp~um [3 FMSHRC 822], the Secretary of Labor 

must prove: Cl> the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to 

safety--contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable 

likelihood that the injury in question will be of a 

reasonably serious nature. As a practical matter, the 

last two elements will often be combined in a single 

showing. [Footnote omitted.] 

The fire extinguisher violations meet the above test. The 

MSHA supervisor's modifications of the inspector's orders to 

change gravity to a nonserious violation is inconsistent with the 

evidence. I agree with the inspector's testimony and the 

Secretary's contention that the violations were significant and 

substantial. 

Order 2776278 

4. Respondent contends that the braking system on the Mack 

truck was adequate. However, the right rear wheel brakes were 

inoperative. The Secretary contends that the MSHA supervisor's 

modification of the inspector's order to a§ 104(a) citation "is 

inappropriate and should be disregarded" because the supervisor 

failed to obtain information from the inspector and gave no basis 

for his decision other than the conclusory statement of the 

operator's representative, who was not present at the time the 

order was issued. I agree with the Secretary's argument based 

upon the facts shown by the inspector's testimony. 

Order 2776279 

Respondent does not deny that the driver's side view mirror 

on the Mack truck was broken in three places near the bottom of 

the mirror. Respondent challenges the gravity finding of the 

inspector on the grounds that the truck driver did not complain 

about the mirror and part of the mirror gave an undistorted side 

view. I agree with the Secretary's position that the distortion 

of part of the driver's side view, because of brakes in the 

mirror, constituted a substantial and significant violation. The 

fact that the driver did not complain about the mirror does not 

669 
alter the gravity of the violation. I agree with the Secretary's 

position that the modification of the order oy MSHA Supervisor 

Wilder should be disregarded as being ~ontrary to the evidence. 

I accept the testimony of the inspector that the broken part of 

the mirror substantially distorted the driver's side rear view 

and created a substantial and significant violation. 

Order 27784242 

Respondent contends that seat belts were not needed because 

the loader was being operated on level ground. The loader is 

included in a class of vehicles C§ 77.403a) requiring rollover 

protection because of a general history of such vehicles turning 

over. I accept the inspector's testimony that there was a danger 

of overturning and, therefore, that seat belts were required. 

Respondent violated the safety standards as charged in the 

following citation and orders, and the Secretary proved, by a 

preponderance of the reliable evidence, the allegations of 

negligence, gravity, and unwarranted violations. Considering all 

of the criteria of § llOCi) of the Act for assessment of civil 

penalties, I find that the following penalties are appropriate: 

Violation (30 C.F.R.) Civil Penalty 

Citation 2776271 (§ 77.410) $ 68 

Order 2776272 (§ 77.1605(b}) 98 

Order 2776273 C§ 77.410) 140 

Order 2776274 (§ 77.1109Cc)(l)) 66 

Order 2776275 (§ 77.1605(a)) 140 

Order 2776276 (§ 77.1109(c)(l)) 66 

Order 2776277 (§ 48.26(a)) 140 

Order 2776278 C§ 77.160(b}) 68 

Order 2776279 (§ 77.1606(c) 114 

Order 2776280 (§ 77.410) 140 

Order 2784241 C§ 77.1109Cc)(l)) 66 

Order 2784242 (§ 77.1710(i)) 140 

$1,246 

CONCLUSIONS OF LAW 

1. The undersigned judge has jurisdiction in these 

proceedings. 

2. Respondent violated the safety standards as charged in 

the above citation and orders. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent shall pay the above 

civil penalties of $1,246 within 30 days of this Decision. 

670 
Distribution: 

(A);a~ 1-MAv~ William Fauver 

Administrative Law Judge 

G. Elaine Smith, Esq., U.S. Department of Labor, Office of the 

Solicitor, 2002 Richard Jones Rd., Suite 201-B, Nashville, TN 

37215 (Certified Mail) 

Mr. Gary A. Branham, President, Triple B Corporation, P.O. Box 

428, Prestonsburg, KY 41653 (Certified Mail) 

671 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 131988 

WILLIAM G. BINION, 

Complainant 

: DISCRIMINATION PROCEEDING 

v. Docket No. PENN 87-209-D 

MSHA Case No. PITT CD 87-11 

KEYSTONE COAL MINING COMPANY, 

Respondent Urling No. 2 Mine 

Before: 

DECISION APPROVING SETTLEMENT 

AND 

ORDER OF DISMISSAL 

Judge Koutras 

Statement of the Case 

This proceeding concerns a complaint of alleged discrimination filed by the Complainant William G. Binion against the 

respondent pursuant to section 105(c) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et seq. The complainant 

alleged that he was transferred from his--Working section to 

another section out of retaliation "for my safety and health 

efforts for myself and other employees." Complainant maintained 

that he operated his roof-bolting machine at a safe speed, 

exercising necessary precaution, but that mine management 

threatened him with another change if he did not bolt faster. 

The complainant filed his initial complaint with the 

Secretary of Labor, Mine Safety and Health Administration (MSHA), 

and upon completion of its investigation, MSHA advised the 

complainant that the information received during the investigation did not establish any violation of section lOS(c) of the 

Act. Thereafter, the complainant filed a pro se complaint with 

the Commission, but subsequently retained counsel and the United 

Mine Workers of America (UMWA) to represent him in this matter. 

The case was scheduled for a hearing on the merits on 

December 8, 1987, in Indiana, Pennsylvania. However, the hearing 

was subsequently continued and the matter was stayed after the 

parties informed me that they had mutually agreed to resolve 

their differences. 

672 
Discussion 

On April 28, 1988, Mr. Binion's counsel filed a motion to 

withdraw the complaint in this matter. As grounds for the motion, 

counsel has submitted a sworn statement executed by Mr. Binion on 

May 2, 1988, and it states as follows: 

I, WILLIAM G. BINION,, the Complainant in the 

above captioned action, hereby authorize my 

attorneys, District #2 Legal Counsel, to withdraw 

the complaint in the above captioned case. I have 

amicably resolved this matter with my employer. 

My counsel has explained my-rights, duties and 

obligations relative to this matter, and I am 

authorizing the withdrawal of the complaint as my 

free and voluntary act. 

In view of the foregoing, it would appear to me that the 

parties have settled their differences and have reached an 

amicable resolution of the dispute which gave rise to the filing 

of the complaint in this matter. Under the circumstances, I see 

no reason why the Motion to Withdraw should not be granted. 

ORDER 

The complainant's Motion to Withdraw his complaint IS 

GRANTED, and this matter IS DISMISSED. My previously issued 

Stay Order of December 3, 1987, IS TERMINATED. 

~ti,~ ~eo~ Kod(f1.s 

~dministrative Law Judge 

Distribution: 

David Tulowitski, Attorney-at-Law, 603 N. Julian Street, 

Ebensburg, PA 15931 (Certified Mail) 

Lester Poorman, International Representative, UMWA District #2, 

521 West Horner Street, Ebensburg, PA 15931 (Certified Mail) 

William M. Darr, Esq., Keystone Coal Mining Company, 655 Church 

Street, Indiana, PA 15701 (Certified M.ail) 

/fb 

673 
. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 171988 

CHARLES H. SISK, 

·complainant . 

. DISCRIMINATION PROCEEDING 

v. 

CHAROLAIS CORPORATION, 

E. R. MINING, INC., 

D.B.A. as E. R. TRUCKING CO.: 

Respondent 

Docket No. KENT 87-212-D 

MADI CD 87-3 

No. 1 Mine 

ORDER OF DISMISSAL 

Before: Judge Melick 

Complainant requests approval to amend his Complaint by 

dismissing Charolais Corporation as a party Respondent in the 

captioned case. No objection has been filed to the request and 

under the circumstances permission to amend is granted. 

29 C.F.R. § 2700.11. Charolais Corporatia is therefore dismissed 

as a party Respondent. 

Distribution: 

Daniel N. Thomas, J<.::sq., Thomas & Ison, P.S.C., 1302 South Main 

Street, P.O. Box 673, Hopkinsville, KY 42240 (Certified Mail) 

Pam Corbin, Esq., Little & Corbin, 161 Sugg Street, Madisonville, 

KY 42431 (Certified Mail) 

D. Patton Pelfrey, Esq., Brown, Todd & Heyburn, 1600 Citizens 

Plaza, Louisville, KY 40202 (Certified Mail) 

nt 

674 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 171988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHP..LF OF 

WILLIAM LEE COOK, 

Complainant 

v. 

PATTON ROCK PRODUCTS, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. SE 88-39-DM 

MSHA Case No. MD 87-22 

Patton Quarry 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a complaint of alleged discrimination filed by the Secretary of Labor on behalf of 

William Lee Cook against the respondent pursuant to section 

105(c) (2) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et seq. The complaint alleges that Mr. Cook 

was discharged from his employment with the respondent 

because he complained about bad brakes on a front-end loader 

and threatened to refuse to operate the loader without brakes 

because he believed it would be unsafe to do so. In addition 

to Mr. Cook's reinstatement, employee benefits, back pay with 

interest, and the expungement of the discharge from Mr. Cook's 

employment records, the Secretary requested a civil penalty 

assessment of $1,200 against the respondent for a violation of 

section 105(c) (1) of the Act. 

The respondent filed a timely answer denying any corporate 

liability and the matter was scheduled for a hearing in 

Chattanooga, Tennessee on June 7, 1988. However, by motion 

received on May 12, 1988, the Secretary requests approval of a 

settlement executed by the parties, including Mr. Cook. The 

terms of the settlement are as follows: 

675 
(1) Respondent will pay to Mr. Cook the sum 

of $756.35 in full and complete settlement of the 

case, which represents net compensation for the 

period March 7, 1987, to April 13, 1987, (5 weeks) 

based on a 40 hour week at $4.50 per hour, plus 

interest at the rate of 6.13% per annum. Respondent has permanently reinstated Mr. Cook and there 

is no longer any issue of reinstatement in this 

case. 

(2) Respondent will expunge from the 

personnel record of Mr. Cook any and all references 

to his termination from its employ on March 7, 

1987, and will not make any adverse comment or 

recommendation concerning Mr. Cook's employment 

for the period March 7, 1987, to April 13, 1987, 

if any inquiries are made. 

(3) As part of the settlement, the Secretary 

agrees to reduce the penalty to $500.00, taking 

into account the fact that testimony as to what 

actually occurred during the events which resulted 

in Mr. Cook's termination would be at variance, 

particularly as to the authority of the corporate 

officer who discharged him, and respondent has acted 

in good faith in agreeing to settle this claim. 

The Secretary represents that the respondent has 

agreed to pay the reduced civil penalty assessment 

of $500. 

Conclusion 

After careful review and consideration of the settlement 

terms and conditions executed by the parties in this proceeding, 

including Mr. Cook, I conclude and find that it reflects a 

reasonable resolution of the complaint filed by MSHA on 

Mr. Cook's behalf. Since it seems clear to me that all parties 

are in accord with the agreed upon disposition of the complaint, 

I see no reason why it should not be approved. I also find no 

reason for not approving the reduction of the civil penalty 

assessment as proposed by the Secretary. 

ORDER 

The Secretary's motion IS GRANTED and the settlement IS 

APPROVED. The parties ARE ORDERED to fully comply forthwith 

with the terms of the settlement. The respondent IS FURTHER 

676 
ORDERED to pay to the Secretary a civil penalty assessment of 

$500 for the violation in question, and payment is to be made 

within thirty (30) days of the date of this decision and order. 

Upon receipt of payment by the Secretary, and full compliance 

with the terms of the settlement, this matter is dismissed. 

The scheduled hearing is cancelled. 

/~. /// .. ~dtras a~ 

Administrative Law Judge 

Distribution: 

Glenn M. Embree, James L. Stine, Esqs., Office of the Solicitor, 

U.S. Department of Labor, Room 339, 1371 Peachtree Street, N.E. 

Atlanta, GA 30367 (Certified Mail) 

Kenneth D. Bruce, Esq., 116 East Patton Avenue, Lafayette, GA 

30728 (Certified Mail) 

/fb 

677 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 181988 

MARY M. BALL, 

Complainant 

v. 

FMC WYOMING CORPORATION, 

and 

SECRETARY OF LABOR, 

MIN~ SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

and 

VERNON GOMEZ, DISTRICT 

MANAGER, ROCKY MOUNTAIN 

DISTRICT, MINE SAFETY 

DISCRIMINATION PROCEEDING 

Docket No. WEST 88-5-DM 

FMC Trona Mine 

AND HEALTH ADMINISTRATION, 

Respondents 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On May 16, 1988, Complainant filed a motion to dismiss 

this proceeding, based on a letter from counsel for MSHA 

to counsel for Complainant, stating that the Administrator 

for Metal and Non-metal Safety and Health, MSHA, would advise 

the District Managers that before complaint correspondence 

is forwarded to state agencies, the forwarding official should 

confirm that state agency will keep the names of miner 

complainants confidential. The letter above referred to is 

made part of the record in this case. 

Premises considered, the motion is GRANTED, and this 

proceeding is DISMISSED. 

' j /} / ; .. 

>~ ~":_,,' f'&/(ll,,v? t/& , I 

. · James A. Broderick 

Administrative Law Judge 

Distribution: 

J. Davitt McAteer, Esq., Occupational S&H Law Ctr., 1536 16th St., 

N.W., Washington, D.C. 20036 (Certified Mail) 

James Holtkamp, Esq., Vancott, Bagley, Cornwall & McCarthy, 50 S. 

Main, Suite 1600, Salt Lake City, UT 84145 (Certified Mail) 

Thomas Mascolino, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

slk 

678 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

M~'< 18\988 

SECRETARY OF LABOR, MSHA 

on behalf of 

HARRY THOMAS_, 

Petitioner 

v. 

ARCH OF KENTUCKY, INC., 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. KENT 88-37-D 

BARB CD 87-51 

No. 37 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

This case is before me upon a complaint alleging discrimination 

against a miner under section 105(c) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. 801, et~ The parties have filed 

a motion to approve a settlement agreement and to dismiss the case. 

I have considered the representations and documentation submitted 

and I conclude that the proffered settlement is consistent with 

the purposes of the statute. 

ORDER 

WHEREFORE IT IS ORDERED that the motion for approval of 

settlement is GRANTED and Respondent shall pay the approved 

compensation to Harvey Thomas in the amount of $6,151.02 within 

30 days of this Decision. Upon such payment this proceeding is 

DISMISSED. 

W~?rMAv,,._ William Fauver 

Administrative Law Judge 

Distribution: 

W.F. Taylor, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certified Mail) 

R. Henry Moore, Esq., Professional Corporation, 57th Floor, 

600 Grant Street, Pittsburgh, PA 15219 (Certified Mail) 

kg 

679 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

H. B. ZACHRY COMPANY, 

Respondent 

May 23, 1988 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 88-29 

A. C. No. 41-02632-03509 DB3 

Martin Lake Strip Mine 

DECISION 

Appearances: Jerome Kearney, Esq., Office of the Solicitor, U.S. 

Department of Labor, Dallas, Texas for Petitioner; 

Richard L. Reed, Esq., Johnston, Ralph, Reed & 

Watt, San Antonio, Texas for Respondent 

Before: Judge Melick 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to section lOSCd) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et. seq., the "Act." The Secretary charged the H. B. Zachry 

Company (Zachry) with three violations of mandatory standards 

following an investigation by the Federal Mine Safety and Health 

Administration CMSHA) of a fatal accident at the Texas Utilities 

Mining Company's Martin Lake Strip Mine on December 23, 1986. 

Zachry thereafter filed a Motion for Summary Decision pursuant to 

Commission Rule 64, 29 C.F.R. § 2700.64 and a preliminary hearing 

was held limited, at Respondent's request, to that motion. 

Zachry argues that it is not subject to the Act because it 

did not have a continuing presence at a "mine" as defined in the 

Act and that it was not an "independent contractor" within the 

scope of the Act while performing repairs outside the bucket 

repair shop area. It further argues that its repair services 

were in any event "de minimis" and, therefore, under the 

principles set forth in Old Dominion Power Co. v. Donovan, 772 

F.2d 92 (4th Cir. 1985) it was not subject to the Act. For the 

reasons that follow I find the contentions to be without merit. 

Section 3(h)(l) of the Act reads in part as follows: 

"Coal or other mine" means CA) an area of land from 

which minerals are extracted in nonliquid form 

680 
(B) private ways and roads appurtenant to such area, 

and (C) lands, excavations ••• and workings, 

structures, facilities, equipment, machines, tools, or 

other property •• used in, or to be used in, or 

resulting from, the work of extracting such miaerals 

from their natural deposits in nonliquid form ••• 

This definition, while not without bounds, is expansive and 

is to be interpreted broadly. Secretary v. u. S. Steel Mining 

Inc., 10 FMSHRC 146 (1988); Dilip K. Paul v. P.B.-KBB Inc. 

7 FMSHRC 1784 (1985), aff'd sub. nom. Dilip K. Paul v. FMSHRC, 

812 F.2d 717 (DC Cir. 1987), cert. denied 107 s. Ct. 3269 (1987). 

The evidence in this case shows that Zachry maintains a 

repair shop and repair yard at the Texas Utilities Mining 

Company's (TUMCO) Martin Lake Strip Mine. According to Ronald 

Goodwin, project manager for Zachry, Zachry had contracted with 

TUMCO to perform repair work at its mine under which TUMCO 

directs what is to be done and pays Zachry at an hourly rate to 

complete the job. Goodwin acknowledged that Zachry keeps 6 to 7 

employees at the repair shop on a full-time, 40-hour-work-week 

basis. According to Goodwin the Zachry employees spend 90 

percent of the time repairing dragline buckets at the repair yard 

but occasionally go to the pit areas to work at the draglines. 

These employees also operate forklifts or "cherry pickers" around 

the repair shop to lift parts or equipment necessary to make 

repairs. Zachry uses its own forklift, and welding and hand 

tools. 

MSHA Inspector Donald Summers testified that the Martin Lake 

Strip Mine had been under his inspection area for nine years and 

that Zachry had been operating there for about the same period. 

Zachry was primarily responsible for repairs on the dragline 

bucket but also performed work on bulldozers, and haulers and 

"whatever else that the operator deems necessary for them to do". 

He noted that the dragline bucket is an integral part of the 

mining process and was used to remove the overburden from the 

lignite ore. Summers observed that Zachry personnel also 

performed repair work at the mine pit, the crusher area and the 

silo area of the mine. 

According to Summers the shop area where most of zachry's 

work is performed is not physically separated from any other part 

of the mine but is located between the haulage road and the mine 

railroad to the north of the crusher. This is approximately 60 

to 80 feet from the mine haulage road, 40 to 60 feet from the 

mine railroad, 800 feet from the crusher area 3.nd 600 feet from 

the fuel truck stop. 

681 
Within this framework of evidence it is clear that Zachry 

was indeed an "independent contractor" performing repair work on 

a daily basis at the Martin Lake Strip Mine and that its services 

were accordingly not "de minimis" within the meaning of Old 

Dominion Power Company-,-supra. - ~~ 

Zachry's other arguments--that it was not "properly 

notified" that the citations would be enforced and that the 

Secretary failed to set forth sufficient reasons for her special 

assessment--are also without merit. Neither allega ion has an 

undisputed factual basis nor legal merit. The Moti n for Summary 

Decision is accordingly denied. 

Distribution: 

Gary Mel 

Ad.minis 

(703) 7 

Jerome T. Kearney, Esq., U.S. Department of Labor, Office of the 

Solicitor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Richard L. Reed, Esq., Johnston, Ralph, Reed & Watt, 2600 Tower 

Life Building, San Antonio, TX 78205-3107 (Certified Mail) 

nt 

682 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 2 51988 

KENNETH J. PEDERSEN, 

Complainant 

v. 

DARMAC ASSOCIATES CORP., 

Respondent 

. . 

DISCRIMINATION PROCEEDING 

Docket No. PENN 88-58-D 

PITT CD 87-17 

ORDER OF DISMISSAL 

Before: Judge Weisberger 

On May 6, 1988, Respondent filed a Motion to Dismiss 

Complaint's complaint on the ground that his claims has been 

resolved in the settlement of a related proceeding before the 

National Labor Relations Board. In its Motion Respondent alleged 

that the Complainant consented to this Motion. On May 6, 1988, 

the Complainant filed a signed statement in which he indicated as 

follows "Based upon a resolution of all outstanding claims 

arising from discharge from DARMAC Associates Corp., I hereby 

wish to withdraw my discrimination complaint and the appeal 

pending before you." 

Therefore, in the interest of justice, the complaint herein 

is DISMISSED, and this case is DISMISSED pursuant to 29 C.F.R. 

§ 2700.11. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

Mr. Kenneth J. Pedersen, Box 206, R. D. 1, Barnesboro, PA 15714 

(Certified Mail) 

Stanley R. Geary, Esq., Rose, Schmidt, Hasley & DiSalle, 

900 Oliver Building, Pittsburgh, PA 15222-5369 (Certified Mail) 

dcp 

683 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA. 22041 

MAY 261988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

CEN-TEX READY MIX CONCRETE, 

COMPANY, INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 88-19-M 

A.C. No. 41-03055-05506 

Docket No. CENT 88-41-M 

A. C. No. 41-03055-05507 

Lampasas Quarry 

DECISION APPROVING SETTLEMENT 

Appearances: Mary E. Witherow, Esq., U.S. Department of 

Labor, Office of the Solicitor, Dallas, Texas 

for Petitioner; 

John D. Austin, Esq., Arter & Haden, 

Washington, D.C. for Respondent. 

Before: Judge Melick 

These cases are before me upon petitions for assessment 

of civil penalty under Section 105(d} of the Federal Mine 

Safety and Health Act of 1977 (the Act). Petitioner has 

filed an original and an amended motion to approve a 

settlement agreement proposing a reduction in penalty from 

$10,957 to $6,957. I have considered the representations 

and documentation submitted in these cases, and while I do 

not accept Respondent's claim that an independent contractor 

was responsible for several of the violations, nevertheless 

conclude that the proffered settlement is appropriate under 

the criteria set forth in Section llOCi> of the Act. 

WHEREFORE, the motion for approval of\ settlement is 

GRANTED, and it is ORDERED that Respondenti\pay penalti\;·s of 

~ J t I 

$6,957 within 30 days of this ord • \~ / 

~/ ~J~/\/\11..~):\ ___ Gary Mel ck . 

Administ tive La Judge 

C 703 > 75Gn6261 \ \ 

\\ \ \ ! 

Distribution: 

...., 

Mary E. Witherow, Esq., Office of the Solicitor, U.S. 

Department of Labor, 525 South Griffin Street, Suite 501, 

Dallas, TX 75202 (Certified Mail) 

John D. Austin, Esq., Arter and Hadden, 1919 Pennsylvania 

Ave., N.W., Suite 400, Washington, D.C. 20006 (Certified 

Mail) 

nt 684 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 26, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-76 

A. C. No. 46-01454-03725 

Pursglove No. 15 Mine 

CONTEST PROCEEDING 

Docket No. WEVA 88-4-R 

Order No. 2903242; 9/8/87 

Pursglove No. 15 Mine 

Mine TD 46-01454 

DECISION 

ORDER OF DISMISSAL 

Appearances: 

Before: 

Anita O. Eve, Esq., Office of the Solicitor, 

U. S. Department of Labor, Pittsburgh, Pennsylvania, for Petitioner. 

Judge Merlin 

These cases are a petition for the assessment of a civil 

penalty filed by the Secretary of Labor against Consolidation 

Coal Company, and the accompanying notice of contest filed by the 

operator. At the hearing, the Solicitor moved to withdraw the 

petition and have the notice of contest dismissed on the grounds that the subject citation was vacated by MSHA. On the record the 

Solicitor's motion to withdraw was granted. This hearing took 

place at the time other cases involving the parties were heard on 

the merits. 

685 
ORDER 

The order of dismissal rendered from the bench is hereby 

AFFIRMED and these cases are DISMISSED. 

= p~ Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Anita D. Eve, Esq., Office of the Solicitor, U. S. Department of 

Labor, Room 14480-Gateway Building, 3535 Market Street, 

Pittsburgh, PA 15241 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

UMWA, 900 15th Street, N.W., Washington, OC 20005 (Certified 

Mai 1 ) 

Lawrence Beeman, Director, Office of Assessments, U. S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Handcarried) 

I g l 

686 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 311988 

CEN-TEX READY MIX CONCRETE 

COMPANY, INCORPORATED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

687 

. . 

. . 

. . 

. . 

. . 

. . 

. 

. 

CONTEST PROCEEDINGS 

Docket No. CENT 87-83-RM 

Citation No. 28"46001; 6/2/87 

Docket No. CENT 87-84-RM 

Citation No. 284602; 6/2/87 

Docket No. CENT 87-85-RM 

Citation No. 2846003; 6/2/87 

Docket No. CENT 87-86-RM 

Citation No. 2868356; 6/2/87 

: Docket No. CENT 87-87-RM 

Order No. 2868356; 6/2/87 

. . Docket No. CENT 87-88-RM 

Citation No. 2868357; 6/2/87 

: Docket No. CENT 87-89-RM 

Citation No. 2868358; 6/2/87 

Docket No. CENT 87-90-RM 

Citation No. 2868471; 6/2/87 

: Docket No. CENT 87-91-RM 

Citation No. 2868473; 6/2/87 . . Lampasas Quarry 

Mine I.D. No. 41-03055 
ORDER OF DISMISSAL 

Appearances: Mary E. Witherow, Esq., U.S. Department of 

Labor, Office of the Solicitor, Dallas, Texas 

for Petitioner~ ; 

John D. Austin, Esq., Arter & Haden, 

Washington, D.C. for Respondent. 

Before: Judge Melick 

Contestant has requested to withdraw its Contests in the 

captioned cases in connection with a settlement agreement 

reached in the related civil penalty proceedings. Under the 

circumstances herein, permission to withdraw is granted. 29 

C.F.R. § 2700.11. These cases are therefore. ismissed. 

Distribution: 

; 

I 

CL .. 1 _1 I j /il~--~ _L G~ry Meli' k \ 

Administnative 1 aw Judge 

(703) 751t6261 .J 

;; 

John D. Austin, Esq., Arter and Hadden, 1919 Pennsylvania 

Ave., N.W., Suite 400, Washington, D.C. 20006 (Certified 

Mail) 

Mary E. Witherow, Esq., Office of the Solicitor, U.S. 

Department of Labor, 525 South Griffin Street, Suite 501, 

Dallas, TX 75202 (Certified Mail) 

nt 

688 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 

May 20, 1988 

EMERY MINING CORPORATION 

AND/OR UTAH POWER & LIGHT 

COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA C UMWA) , Intervenor 

Docket No. WEST 87-155-R 

Citation 2844811; 3/24/87 

Docket No. WEST 87-156-R 

Order 2844813; 3/24/87 

Docket No. WEST 87-157-R 

Order 2844815; 3/24/87 

Docket No. WEST 87-158-R 

Citation 2844816; 3/24/87 

Docket No. WEST 87-159-R 

Citation 2844817; 3/24/87 

Docket No. WEST 87-160-R 

Order 2844822; 3/24/87 

Docket No. WEST 87-161-R 

Order 2844823; 3/24/87 

Docket No. WEST 87-163-R 

Citation 2844826; 3/24/87 

Docket No. WEST 87-243-R 

Citation 2844828; 8/13/87 

Docket No. WEST 87-244-R 

Citation 2844830; 8/13/87 

Docket No. WEST 87-245-R 

Citation 2844831; 8/13/87 

Docket No. WEST 87-246-R 

Citation 2844832; 8/13/87 

Docket No. WEST 87-247-R 

Citation 2844833; 8/13/87 

Docket No. WEST 87-248-R 

Citation 2844835; 8/13/87 

Docket No. WEST 87-249-R 

Citation 2844837; 8/13/87 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. 

. 

. . 

. . 

. . 

089 

CONTEST PROCEEDINGS 

Docket No. WEST 87-130-R 

Citation 2844485; 3/24/87 

Docket No. WEST 87-131-R 

Order 2844486; 3/24/87 

Docket No. WEST 87-132-R 

Order 2844488; 3/24/87 

Docket No. WEST 87-133-R 

Order 2844489; 3/24/87 

Docket No. WEST 87-134-R 

Citation 2844490; 3/24/87 

Docket No. WEST 87-135-R 

Citation 2848891; 3/24/87 

Docket No. WEST 87-136-R 

Citation 2844492; 3/24/87 

Docket No. WEST 87-137-R 

Citation 2844493; 3/24/87 

Docket No. WEST 87-144-R 

Order 2844795; 3/24/87 

Docket No. WEST 87-145-R 

Order 2844796; 3/24/87 

Docket No. WEST 87-146-R 

Order 2844798; 3/24/87 

Docket No. WEST 87-147-R 

Order 2844800; 3/24/87 

Docket No. WEST 87-150-R 

Order 2844805; 3/24/87 

Docket No. WEST 87-152-R 

Order 2844807; 3/24/87 

Docket No. WEST 87-153-R 

Order 2844808; 3/24/87 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EMERY MINING CORPORATION, 

UTAH POWER & LIGHT COMPANY, 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA ( UMWA) , 

Intervenor 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 87-208 

A.C. No. 42-00080-03578 

Docket No. WEST 87-209 

A.C. No. 42-00080-03579 

Docket No. WEST 88-25 

A.C. No. 42-00080-03584 

Wilberg Mine 

ORDER 

The matter at issue involves a motion in limine filed by 

Emery Mining Company, (EMC), to exclude as evidence a document 

entitled "Report of Investigation, Underground Coal Mine Fire, 

Wilberg Mine, I.D. No. 42-00080, Emery Mining Corporation, 

Orangeville, Emery County, Utah, December 19, 1984", hereafter 

referred to as "Wilberg Mine Fire Report" or "Report". 

The Secretary and Emery have filed briefs in support of 

their positions. 

The admissibility of the Report was set for oral argument 

but in the interest of informed litigation planning the parties 

waived oral arguments and submitted the issues. 

As a foundational matter the parties also stipulated that 

Donald W. Huntley, a witness offered by t.he Secretary, would 

testify and identify the Wilberg Mine Fire Report as the document 

prepared by the Secretary. Further, the document is the final 

and official MSHA report on the fire and that it was released on 

August 7, 1987. 

The abstract of the report indicates that it deals with the 

Wilberg mine fire that occurred on December 19, 1984. The 

authors are identified as Cavanaugh, Denning, Huntley, Oakes and 

Painter. The originating office is that of the Administrator, 

Coal Mine Safety and Health, 4015 Wilson Boulevard, Arlington, 

Virginia 22203. 

The table of contents of the report (omitting page 

references) reads as follows: 

690 
ABSTRACT 

GENERAL INFORMATION · 

Mining Methods 

Mine Inspections 

Roof Support 

ventilation 

Combustible Material and Rock Dusting 

Electricity 

Fire Protection and Emergency Procedures 

Designated Escapeways 

Explosives 

Transportation and Haulage 

Communications 

Oil Wells and Gas Wells 

Smoking 

Mine Rescue and Self-Rescuers 

Identification Check System 

Training Program 

Emergency Medical Assistance 

Illumination 

Mine Drainage System 

FIRE, FIRE FIGHTING, SEARCH AND RESCUE ATTEMPTS, 

AND SEALING OF THE MINE 

Fire 

Activities Prior to the Fire 

Discovery of the Fire 

Activ1ties on the 5th Right Section and Escape 

of only survivor 

Mine Evacuation and Notification of Mine Emergency 

Personnel 

Activities of MSHA Personnel 

Fire Fighting 

Initial Fire Fighting Activities 

Restoration of Water and Additional Water Problems 

Fire Fighting Activities and Advance of the Fire 

Search and Rescue Attempts 

Initial Explorations 

Mine Rescue Team Response 

Sealing of the Mine 

RECOVERY AND INVESTIGATION 

Recovery 

Recovery of the Mine 

Recovery Entries 

Recovery of the Fire Area 

Investigation of the Accident 

Participants 

Sworn Statements 

Underground Investigation 

691 
Extensive Testing and Involvement of Experts 

and Specialists 

Independent Expert Analysis 

DISCUSSION AND EVALUATION 

Longwall Panel Development 

Ventilation of 5th Right 

Ventilation Control devices for 5th Right 

Escapeways and Travelways 

Escapeways 

5th Right Return 

Bleeder Entries 

Fire Fighting and Evacuation Training 

Products of the Fire 

Contaminates From the Fire 

Mine Equipment and Substances 

Carbon Monoxide, oxygen, and Carbon Dioxide 

Carbon and Soot 

Self-Rescuers - Location and Use 

Self-Contained Self-Rescuers 

Filter Self-Rescuers 

Use of Rescue Devices by the Victims 

Electricity 

Examination and Maintenance of Electric Equipment 

Location of the Source of Fire 

Location of Fire when First Observed 

Fire Spread in the Direction of Airflow 

Burn Pattern of the Fire 

Cable Damage 

Energized Equipment 

Source of Fire - Air Compressor 

Underground Use of Air Compressors 

Installation and Ventilation - Air Compressor Station 

Examination and Maintenance of 5th Right Air Compressor 

History of 5th Right Air Compressor 

Recovery of the Air Compressor 

Air Compressor Operating While Flames Present 

Indications of Sudden Over-Pressure 

Evidence of Localized High Temperatures 

Oil Used in 5th Right Air Compressor - An Accelerant 

Electrical Deficiencies - Over-Temperature Safety 

Switch and On/Off Switch 

Other Potential Fire Sources Considered by MSHA 

Spontaneous Combustion 

Smoking Articles 

Diesel Equipment 

Arson or Sabotage 

Electrical Circuits and Equipment 

No. 4 Entry - High-Voltage Circuits and Equipment 

High-Voltage Cable 

Belt Drive Power Center 

692 
Protective Switchgear 

No. 4 Entry - Low-Voltage Circuits and Equipment 

Roof Drill Cable and Satellite Pump Cable 

Air Compressor Cable 

Motor Starter Cable 

EMC Source of Fire Scenario 

Belt Entry - Low-Voltage Circuits and Equipment 

Belt Drive Motor Starter 

Belt Drive Motor Cables and Electric Enclosure Cable 

Belt Control Cables 

Belt Take-Up and Power Cable 

Super 500 and Protective Line Starter 

5th Right Belt Conveyor 

Belt Fire Detection and Fire Suppression 

Fire Detection System 

Fire Suppression System 

CONTRIBUTORY VIOLATIONS AND MSHA ACTIONS 

Contributory Violations 

Actions Taken by MSHA to Reduce the Likelihood of Similar 

Occurrences 

Conclusion 

Appendix A 

Appendix B 

Appendix c 

Appendix D 

Appendix E 

Appendix F 

Appendix G 

Appendix H 

Appendix I 

Appendix J 

Appendix K 

Appendix L 

Appendix M 

Appendix N 

CONCLUSION 

APPENDICES 

Victim Data Sheets 

Rescue Team Members Who Participated in the 

Rescue and Recovery Operation 

Persons Who Participated in the Investigation 

Persons Who Provided Sworn Statements During 

the Investigation 

Mine Fan Pressure Recording Chart Dated 

12/19/84 

Copy of Kenneth Blake's Handwritten Statement 

Dated 12/19/84 

Wilberg Mine Fire: Contamination of the 5th 

Right Section Report 

Wilberg Mine Fire: Cause, Location, and Initial 

Development by John Nagy 

Wilberg Mine Disaster Self-Rescuer Evaluation 

Ingersoll-Rand Models SM, 7M, and 9M Air Compressor Operating and Maintenance Manual 

PTL-Inspectorate, Inc., Report of Testing and 

Analysis of Air Compressor Parts from Wilberg 

Mine Fire 

Tests of similar Air Compressor 

Calculated Temperatures Inside Air Compressor 

Station 

Wilberg Mine Fire Investigation: Lubricating 

Oil Samples Tests 

693 
Appendix 0 

Appendix p 

Appendix Q 

Appendix R 

Appendix s 

Appendix T 

Appendix u 

Appendix v 

Appendix w 

Appendix x 

Appendix y 

Appendix z 

Appendix Zl 

Detailed Account of Recovery Activities 

Test Results, Evaluation, and Discussion of 

Potential Electrical Sources of Fire 

Electrical Wiring Diagrams and UP&L/CRSP Power 

Report 

Test and Evaluation of Fire Detection and Fire 

Suppression Systems 

Test and Evaluation of Mine Communication 

System 

Reports Evaluating the EMC Source of Fire 

Scenario 

Selected Photographs Taken During the Investigation 

Copies of the Contributory Citations and Orders 

Issued as a Result of the Investigation 

Mine Map - Entire Mine 

Mine Map - 5th Right to 8th Right Panels and 

Ventilating Air Current Directions 

Mine Map Showing Location of Detailed Information Maps 

Detailed Information Mine Maps 

Mine Map (Detail A) - Detailed Information of 

fire fighting activities and spread of fire in 

1st North between crosscuts 37 and 43, as 

gathered by the investigation team 

Appendix Z2 Mine Map (Detail B) - Information of the 

initial fire area in 1st North, as gathered by 

the investigation team 

Appendix Z3 Mine Map (Detail C) - Detailed information of 

5th Right section between crosscuts 2 and 7, as 

gathered by the investigation team 

Appendix Z4 Mine Map (Detail D) - Detailed information of 

5th Right section between crosscuts 8 and 21, 

as gathered by the investigation team 

Appendix ZS Mine Map (Detail E) - Detailed information of 

5th Right section between crosscuts 20 and 23, 

as gathered by the investigation team 

Appendix Z6 Mine Map (Detail F) - Detailed information of 

5th Right section between shields 20 and 115, 

as gathered by the investigation team 

Appendix Z7 Mine Map (Detail G) - Detailed information of 

5th Right return between crosscuts 18 and 23, 

_as gathered by the investigation team 

Appendix Z8 Mine Map (Detail H) - Detailed information of 

bleeder entry for 5th Right section between 6th 

and 7th Rights, as gathered by the 

investigation team. 

694 
Discussion and Evaluation of Report 

The Commission has previously ruled that properly admitted 

hearsay testimony, and the reasonable inferences drawn from it, 

may constitute substantial evidence if the hearsay testimony is 

surrounded by adequate indicia of probativeness and trustworthiness. It is accordingly necessary to explore the crucial issue 

of trustworthiness to avoid unfairness to Emery and UP&L at an 

evidentiary hearing. Mid-Continent Resources, Inc., 6 FMSHRC Br 

12n. 7, aff'd, 689 F.2d 632 (6th Cir. 1982), cert denied, 

U.S. , 77 L.Ed. 2d 299 (1983); Richardson v:--Ferales, 402 U.S. 

389, (1971); Commission Rule 60(a), 29 C.F.R. § 2700.GO(a). To 

determine such issues it is necessary to review in detail the 

proffered exhibit. 

Basically, the Report is a characterization of the events of 

the Wilberg Fire. It focuses on MSHA's enforcement actions regarding the alleged regulatory violations now in dispute and 

pending for a hearing. For example, see pages 88-92 of the 

Report which summarize the severity of the fire and specify 

alleged contributory violations of the Mine Act and implementing 

MSHA regulations. The MSHA officials who signed the citations 

and orders (James E. Kirk and Lawrence J. Ganser) are listed in 

Appendix c of the Report as persons who participated in the investigation. MSHA's dual roles both as author of the report and 

as regulator are thus inextricably connected. Thus, I believe 

the Secretary's Report is at the opposite end of the reliability 

spectrum from the routine medical reports prepared by independent 

physicians deemed admissible by the Supreme Court in Richardson 

v. Perales, supra. 

Further in support of the view that the exhibit should be 

excluded I find the Report is a wealth of factual and legal 

conclusions simply stated but without any apparent foundation. 

For example, the GENERAL INFORMATION l; section contains certain 

detail relating to Emery, its principal officers and mine management and it deals with the history of the mine. The section has 

19 subparts. A reading of these subparts shows they should not 

be received in evidence without further foundation. For example, 

DESIGNATED ESCAPEWAYS ~/ reads as follows: 

Generally, the two designated escapeways from working 

sections to the surface were the diesel roadway (intake) 

1/ Pages 1-7. 

2/ Page 5. 

695 
and the belt conveyor entries. The escapeways were parallel 

and adjacent in the 1st North areas of the mine. Concrete 

block stoppings, aluminum overcasts and material doors were 

used to separate the two escapeways in the 1st North area. 

Ladders or ramps were provided at overcasts to facilitate 

travel over these structures. There were deficiencies in 

both the route and condition of these escapeways, details 

of which are discussed in other parts of the report. 

Needless to say the deficiencies, if any, in the escapeways 

are contested issues in WEST 87-133-R, WEST 87-157-R, WEST 

87-163-R and in penalty case WEST 87-208. 

Further, the subpart dealing with SMOKING~/ provides as 

follows: 

EMC had not submitted to MSHA a search program to ensure 

that smoking articles were not taken into the mine. A 

search program had been submitted by Peabody Coal Company 

and approved by MSHA on May 8, 1974, but EMC had not 

formally adopted the program. Records indicating that 

searches for smoking articles were being made were contained in a book on the surface; however, sworn statements 

from several miners indicated that they had not been searched for several months. 

Again, these are contested issues in WEST 87-156-R and in 

the penalty case WEST 87-209. 

Further, the subpart dealing with a TRAINING PROGRAM~/ 

reads as follows: 

EMC's training and retraining plan, which was submitted 

in accordance with 30 CFR Part 48, was approved by MSHA 

on April 28, 1983. According to sworn statements, instruction was being given in accordance with this plan. 

However, the SCSR training was not adequate and is discussed in other parts of this report. 

Again, these issues are contested in WEST 87-134-R and the 

penalty case, WEST 87-208. 

Further, and by way of illustration, it is apparent that a 

closely contested issue, both legally and factually, focuses on 

the source of the fire. The Report deals extensively with 

3/ Page 6. 

4/ Page 7. 

696 
MSHA's analysis of how the fire started 5;, considers and 

eliminates other potential sources ~/ and reviews the EMC 

version. ~/ 

These assertions may or may not be true but credibility 

issues abound in the case. 

It is the judge's vlew that the hearing such as involved 

here, conducted under the Administrative Procedure Act, en~itles 

mine operators to conduct such cross-examination "as may be required for a full and true disclosure of the facts." 5 u.s.c. 

§ 556. Hearing procedures under the Act must comport with 

procedural due process and be fundamentally fair. Southern Ohio 

Coal Co. v. Donovan, 774 F.2d 693 (6th Cir. 1985). See also 

Calhoun v. Bailar, 626 F.2d 145, 148 (9th Cir. 1980). 

The Secretary contends the Report is admissible because it 

is a public report investigated and issued under Section 103 of 

the Act. ~/ 

I agree the Secretary certainly has the statutory authority 

to disseminate information relating to the causes of accidents 

and disasters, but the trustworthiness limitation on its 

admissibility in an administrative hearing has been expressly 

articulated by the Supreme Court in Richardson v. Perales, 402 

U.S. at 403-405. In addition, while the Secretary may 

disseminate information to the public his posture here is 

substantially different in that in these proceedings he is 

seeking substantial monetary penalties against Emery and UP&L. 

I agree with the case law cited by the Secretary that an 

investigative report prepared by a government agency pursuant to 

5/ Page 56-68. 

6/ Page 68. 

7/ Page 79-80. 

8/ Section 103 provides in relevant part: 

INSPECTIONS, INVESTIGATIONS, AND RECORDKEEPING 

SEC. 103. (a) Authorized representatives of the Secretary of 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, 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. • (emphasis added). 

697 
law creates a presumption of a admissibility. However, often 

this presumption of trustworthiness is rebutted on the basis of 

factors which are present in this case. For example, in Miller 

v. Caterpillar Tractor Co., 697 F.2d 141, (6th Cir. 1983) the 

Court observed that the investigative report which was refused 

admission was prepared by [the] ••• United States Bureau of 

Mines, ~ursuant to authority vested by statute, 30 u.s.c. §§ 3-

and 5. I The fact that the investigative report in Miller was 

prepared pursuant to a duty imposed by law was the beginning, not 

the end, of the trustworthiness analysis. In Miller, the Court 

excluded the Bureau of Mines report relying on a determination of 

untrustworthiness. 

Miller is now reviewed in detail since it illustrates some 

of the issues that arose in that case. We will consider each of 

the six factual determinations made by the trial court in Miller 

to determine a lack of trustworthiness. 

First, the investigation commenced approximately three days 

after the accident occurred. The writer does not consider that 

the time lapse is a factor in the Wilberg Fire Report. The fire 

commenced December 19, 1984 and MSHA's personnel were present at 

the scene that day. 

~/ 30 u.s.c. § 3 provides, in part: 

It shall be the province and duty of the Bureau of Mines, subject 

to the approval of the Secretary of the Interior, to conduct 

inquiries and scientific and technologic investigations 

concerning mining, and the preparation, treatment, and 

utilization of mineral substances with a view to improving health 

conditions, and increasing safety •••• 

(emphasis added) 

30 u.s.c. § 5 provides: 

The Director of the Bureau of Mines shall prepare and publish, 

subject to the direction of the Secretary of the Interior, under 

the appropriations made from time to time by Congress, reports of 

inquiries and investigations, with appropriate recommendations of 

the bureau, concerning the nature, causes, and prevention of 

accidents, and the improvement of conditions, methods, and 

equipment, with·special reference to health, safety, and prevention of waste in the mining, quarrying, metallurgical, and 

other mineral industries; the use of explosives and electricity, 

safety methods and appliances, and rescue and first-aid work in 

said industries; the causes and prevention of mine fires; and 

other subjects included under the provisions of sections 1, 3, 

and 5 to 7 of this title. 

(emphasis added) 

698 
The second factor in Miller was that "the author of the 

report possessed no first hand knowledge of the incident". In 

the instant case it is not facially shown what knowledge the 

authors had concerning the fire. 

The third factor is that "the author of the report relied 

upon information received from various other persons". This 

element is apparent from the context of the Report. 

Fourth, "the sources of information were suspect as to 

hearsay". While hearsay is admissible the hearsay here no doubt 

forms bases that are supportive of MSHA's position. 

Fifth, Miller's author was a mining engineer and was not 

facially qualified to render opinions and conclusions relating to 

mechanical operations and/or failures. The writer finds this 

facet is most troublesome in this case. The only reference to 

the qualifications of the experts and specialists appears in the 

Report. 10/ Initially, the Report furnished a broad umbrella for 

the experts and specialists. It reads: 

Extensive Testing and Involvement of Experts 

and Specialists 

The underground investigation consisted of detailed examination of the affected areas of the mine, particularly 

the accident area to determine the origin of the fire and 

the circumstances surrounding it. Extensive evidence was 

gathered and equipment was tested. All of the information 

and data was throughly analyzed. The investigation was a 

painstaking process which involved many experts and specialists from the various segments of MSHA. Other government entities and the private sector were also involved. 

A structured analysis (fault tree) was conducted and consisted of potential sources based on examinations and 

laboratory test results, analysis of sworn statements, and 

other physical factors and phenomena of the mine fire. 

Special laboratory services from the FBI, the Bureau of 

Mines, and MSHA Technical Support were obtained for the 

expert examination of many important items. 

Further, concerning an independent expert the Report reads: 

Independent Expert Analysis 

MSHA engaged John Nagy as a consultant to perform an 

independent study and analysis of the Wilberg fire. Mr. 

Nagy is a renowned mine expert, having spent his entire 

10/ Page 28, 29. 

699 
42-year career, most of it with the Bureau of Mines, researching and investigating mine fires and explosions. 

Mr. Nagy's report of his findings can be found in Appendix 

H. 

The services of PTL-Inspectorate, Inc. CPTL) were also 

engaged to perform tests and analysis on critical compressor 

parts. Their independent opinions and conclusions are 

discussed in the Discussion and Evaluation section of 

this report. PTL's test results can be found in Appendix K. 

John Nagy may well be a "renowned mine expert" but his 

expertise is not shown on page 29 of the Report, nor in his 

findings in Appendix H. 

Sixth, in Miller the report "included a conclusion as to the 

cause of an accident which was not independently verifiable". 

In this case the Report contains a wealth of conclusions not independently verifible. See also McKennon v. Skil Corporation, 

638 F.2d 270, 278 Clst Cir. 1981), a products liability case, 

where the Court excluded as untrustworthy [under Rule 803(8), 

FRE] an accident report prepared by the Consumer Product Safety 

Commission. 

The Secretary, in support of his position on admissibility 

and trustworthiness cites Richardson v. Perales, supra, as well 

as In Re Japanese Electronics Products, 723 F.2d 238, 265 (3rd 

Cir. 1983); Melville v. American Home Assurance Co., 584 F.2d 

1306, 1316 (3rd Cir. 1978); and Moran v. Pittsburgh-Des Moines 

Steel Co., 183 F.2d 467, 473 C3rd Cir. 1950); Robbins v. Whelan, 

653 F.2d 47 Clst Cir. 1981); cert denied 454 u.s. 1123, (1981). 

He further seeks to distinguish Miller from the facts in the 

Wj.lberg Report. 

The Supreme Court case, Richardson v. Perales, 11/ has been 

discussed, supra. It supports Emery rather than the Secretary, 

402 U.S. at 403-405. 

In Re Japa~ese Electronics Products 12/ merely states the 

general law that an investigative report prepared by a government 

agency creates a presumption of admissibility. For the reasons 

previously outlined I believe this presumption has been overcome. 

In Melville v. American Home 13/ the Court ruled that 

documents prepared by the FAA pursuant to FAA regulations were 

admissible unless the party challenging the directives comes 

11/ Medical reports admitted. 

12/ Findings by Japanese Fair Trade Commission pursuant to 

Japanese Anti-Trust Law held admissible. 

13/ Air worthiness Directives prepared by FAA held admissible. 

700 
forward with evidence impuning their trustworthiness, 584 F.2d at 

1316. Air worthiness directives are vastly different from the 

Fire Report here. Further, the Report itself, as previously 

noted contains the material supporting its own exclusion. 

In Moran v. Pittsburgh-Des Moines 14/ the Court allowed in 

evidence a report on the cause of a gasoline tank explosion. 

However, the Secretary's reliance on Moran is misplaced. The 

Moran case arose before Rule 803(8)(c) and its trustworthiness 

standard was adopted. Specifically, it arose under the old 

business record statute. As the Sixth Circuit recently stated 

the "precedential value of Moran is suspect •••• " Miller v. 

Caterpillar Tractor Co., 697 F.2d at 144 n. 1. 

In Robbins v. Whelan 15/ the Court ruled that the jury 

should have been permitted--"to hear evidence of the braking performance of new cars. 

The Secretary also seeks to distinguish Miller. She claims 

Miller is not persuasive because the engineer who drafted the 

report did not arrive on the scene until three days after the 

accident. At that time the accident had been cleared up. 

Further, the engineer based her findings solely on interviews. 

In contrast, the Secretary asserts her report is based on an 

investigation by a "team of experienced investigators and 

experts". As previously noted the experience and skill of the 

investigators is not facially apparent. 

For the reasons previously stated I conclude that the 

Wilberg Mine Fire Report should be and is excluded as evidence. 

Additional issues urged by Emery should be considered. 

Emery argues the Report is untrustworthy because of political 

motivation. This arose because the report was prepared during 

Congressional hearings relating to the fire. It is claimed that 

the Congressional committee questioned MSHA's ability to protect 

miners, its ability to conscientiously enforce the Act, its own 

alleged culpability and the adequacy of its accident investigation. 

Political motivation can be a basis to exclude government 

reports. 16; However, only minimal portions of the transcript of 

the hearings were filed in this case. It is accordingly not 

possible to form a conclusion that the report was politically 

motivated. Emery's contentions in this respect are accordingly 

rejected. 

14/ Bureau of Mines report on cause of gasoline tank explosion 

admitted. 

15/ The Appellate Court ruled it was error to exclude Department 

of Transportation braking performance report. 

16/ Baker v. Firestone Tire and Rubber Co., 793 F. 2d 1196, 1199 

Tilth Cir. 1986); United States v. Durrani, 659 F. Supp. 1183 (D. 

Conn. 1987). 

701 
Emery also contends that the company and a number of its 

former employees are currently the subject of a criminal 

investigation being conducted by MSHA for submission to the U.S. 

Attorney for the District of Utah. Contrary to Emery's views, 

the admissibility of the Report is not related to the criminal 

investigation. Rather, its admissibility is determined by the 

Mine Act, the Commission's rules, and the case law precedent 

cited above. 

Accordingly, for the reasons stated herein I enter the 

following: 

ORDER 

The proffer of the exhibit 17; identified as "Report of 

Investigation, Underground Coal Mine Fire, Wilberg Mine, I.D. No~ 

42-00080, Emery Mining Corporation, Orangeville, Emery County, 

Utah, December 19, 1984" is refused. 

Law Judge 

Distribution: 

Timothy Biddle, Esq., Thomas Means, Esq., Susan Chetlin, Esq., 

Crowell & Moring, 1001 Pennsylvania Avenue, N.W., Washington, D.C. 

20004-2505 

James Crawford, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 

Fifteenth Street, N.W., Washington, D.C. 20005 

17/ The exhibit is filed in Official Commission File No. 7 of 

WEST 87-130-R. 

/bls 

702 ~ u. s. GOVERNlllENT PRINTING orr ICE• 1988-201-735 :83004