January 1983 

O:xrmission Decisions 

1-27-83 Joseph W. Herman v. Imco Services WEST 81-109-Jll.f Pg. 1 

1-27-83 United States Steel Corp. KENT 81-136 Pg. 3 

1-28-83 William A. Haro v. Magma Copper Co. WEST 81-365-Jll.f Pg. 9 

1-28-83 A. H. &nith Stone Co. VA 81-51-M Pg. 13 

Administrative Law Judge Decisions 

1-05-83 Jim Walter Resources, Inc. SE 82-34-R Pg. 20 

1-06-83 Shannopin Mining Co. PENN 81-209-D Pg. 28 

1-11-83 Rex Allen v. UNC Mining and Milling CENT 82-66-Jll.f Pg. 30 

1-12-83 Phelps Dodge Corp. CENT 82-33-:-M Pg. 38 1-13~83 U. S. Steel Mining Co. PENN 82-177 Pg. 46 

1-14-83 J:IDger L. Hall v. B & B Mining, Inc. VA 79-128-D Pg. 78 

1-14-83 Austin Powder Co. , Doan Coal Co. PENN 82-63 Pg. 81 

1-18-83 Island Creek Coal Co. KENT 80-14-D Pg. 131 

1-18-83 Westnnreland Coal Co. WEVA 82-152-R Pg. 132 

1-19-83 Charles J. Frazier v. Morrison-Knudsen, Inc. WEST 81-329-D Pg. 139 

1-24-83 CUmax Molybdenum WEST 82-87-RM Pg. 155 

1-25-83 Allied Chemical Corp. WEVA 79-148-D Pg. 164 

1-25-83 MSHA ex rel. Ray Gann & Dennis Gann v. Asarco SE 81-34-Ild Pg. 166 

1-28-83 Minerals Exploration Co. WEST 82-136-M Pg. 168 

1-31-83 Walter Joe Blanc v. Brown & Root, Inc. wEsr 82-186-IM Pg. 176 
Coilll'lission Decisions 
JANUARY 

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

Secretary of Labor on behalf of Phillip Cameron v. Consolidation Coal Company~ 

Docket No. WEVA 82-190-D. (Judge Merlin, December 13, 1982) 

Review was Denied in the following cases during the month of January: 

Secretary of Labor, MSHA v. Consolidation Coal Company, Docket Nos. PENN 82-89-R, 

PENN 82-208(a). (Judge Melick, December 1, 1982) 

Secretary of Labor, MSHA v. Allied Chemical Corporation, Docket No. WEST 82-97-RM. 

(Judge Kennedy, December 6, 1982) 

Secretary of Labor, MSHA v. Consolidation Coal Company, Docket Nos. PENN 82-64-R, 

PENN 82-66-R, 82-109, 82-184. (Judge Broderick, December 6, 1982) 

Secretary. of Labor, MSHA v. Southwestern Illinois Coal Corporation, Docket No. 

LAKE 82-38. (Interlocutory Review of December 16·, 1982 Order of Judge Broderick) 

William Haro v. Magma Copper Company, Docket No. WEST 81-365-DM. (Judge Boltz, 

November 1, 1982) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JOSEPH W. HERMAN 

v. 

IMCO SERVICES 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 27, 1983 

Docket No. WEST 81-109-DM 

ORDER 

On December 15, 1982, the Commission issued its decision in this 

case affirming the administrative law judge's dismissal of Joseph W. 

Herman's discrimination complaint as untimely filed under section 

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

§ 815(c). On January 18, 1983, we received a document filed by 

Mr. Herman. We construe the document to be a request for reconsideration of the Commission's decision. 29 C.F.R. § 2700.75. We find 

no merit in the request and, accordingly, it is denied. 

We note Mr. Herman's request for "an appeal ••• to the next 

judicial court available to me." We can take no action regarding 

this request.. If complainant desires to appeal the Commission's 

decision to a United States Court of Appeals, the appropriate procedures set forth in section 106(a) (1) of the Act (30 U.S .• C. 

§ 816(a)(l)) and the Federal Rules of A pellate Procedure must be 

followed by him. 

/ 

1 83-1-11 
Distribution 

Joseph W. Herman 

3525 San Mateo Ave. 

Reno, Nevada 89509 

Richard 0. Kwapil, Jr., Esq. 

Woodburn, Wedge, Blakey and Jeppson 

First Interstate Bank Bldg., 16th Fl. 

One East First St. 

Reno, Nevada · 89509 

Aduiinistrative Law Judge John Morris 

Fed. Mine Safety & Health Rev. Commission 

333 West Colfax Avenue, Suite 400 

Denver, Colorado 80204 

2 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. · 20006 

January 27, .1983 

Docket No. KENT 81-13.6 

UNITED STATES STEEL CORPORATION 

DECISION 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 _!! ~· (1976 & Supp. V 1981), 

and involves the interpretation of the surface coal standard, 30 C.F.R. 

§ 77.1605(k) •. The standard states that "[b]erms or guards shall be 

provided on the outer bank of elevated roadways." 1/ In granting summary decision for United States Steel Corporation,-the administrative 

law judge concluded that the standard was unconstitutionally vague and, 

therefore, unenforceable. 2/ For the reasons discussed below, we 

reverse and remand for further proceedings •. 

Following an inspection of U.S. Steel's No. 32 Mine in Lynch, 

Kentucky, an MSHA inspector issued a citation alleging that the company 

violated section 77.1605(k) by failing to install appropriate berms or 

guards at three areas along a mine roadway. At one location, the inspector observed a guard dislodged for a distance of 29 feet. At one of 

the other two cited locations there was a berm.6 to 8 inches high and 

22 feet long, and at the remaining location there was a berm 16 inches 

high and 29 feet long. The i~spector noted on the citation that the 

height of these berms was less than 22 inches, the axle height of what 

the inspector believed was the largest vehicle using the roadway, a 

Pettibone tractor. The relevant MSHA inspector's manual contains a 

policy providing that under section 77.1605(k) berms "shall be at 

1/ "Berm" is defined in 30 C.F.R. § 77.2(d) as "a pile or mound of 

material capable of restraining a vehicie." 

]j The judge's decision is ·repor.ted at 4 FMSHRC 563 (April 1982) (ALJ) • 

83-1-12 

3 
least as high as the mid-axle height of the largest vehicle using the 

roadway." 1./ 

At the hearing before the administrative law judge, the parties 

filed a joint stipulation in which they agreed that the citation stated 

that there were berms along the roadway except where the guard was. 

dislodged. U.S. Steel claimed in the stipulation that it was replacing 

the guard when the citation was issued. The parties filed cross motions 

for summary decision. 

The judge concluded that "the language of section 77.1605(k) ••• 

is so vague and ambiguous as to render [the standard] unenforceable." 

4 FMSHRC at 571. The judge also held that the Surface Manual guideline 

on mid-axle height, which he found formed the basis of the citation, was 

not part of the standard and could not be applied as though it were. 

4 FMSHRC at 570-71. The judge accordingly vacated the citation. We 

directed review~ sponte. 30 U.S.C. § 813(d)(2)(B). The issues before 

us are the constitutional validity of the standard and the judge's treatment of the MSHA Surface Manual guidelines. 

We first address the question of whether section 77.1605(k) is 

unconstitutionally vague. 4/ This standard is not detailed but, as we 

have observed previously in a similar context, "[m]a~y standards must 

be 'simple and brief in order to be broadly adaptable to myriad 

circumstances.'" Alabama By-Products Corp., infra, slip op. at 3, 

quoting from Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November 1981). 

Nevertheless, such broad standards must afford reasonable notice of what 

is required· or proscribed. As we stated in Alabama By-Products, supra: 

In order to pass constitutional muster, a statute or 

standard adopted thereunder cannot be "so incomplete, 

vague, indefinite or uncertain that men of common 

intelligence must necessarily guess at its meaning 

l/ MSHA, Coal Mine Health and Safety Inspection Manual For Surface Coal 

Mines and Surface Work Areas of Underground Coal Mines, at III-338 (1978) 

("the Surface Manual 11 ). The Surface Manual is Chapter III of MSHA's Mine 

Inspection and Investigation Manual, Federal Mine Safety and Health AC't"Of 

1977 (1978)("the Inspection Manual"). The "Introduction," at vii, states 

that the primary purpose of the Inspection Manual is to provide MSHA 

inspection personnel with "definite guidelines" to aid them in.their official 

duties. 

4/ We reject the Secretary's contention that the Commission is without 

authority to pass upon the constitutional soundness of this st'andard. 

The standard was.promulgated under the 1969 Coal Act, and we have held 

previously that challenges to the validity of a Coal Act standard, 

including a vagueness challenge, can be raised and decided in an adjudication before the Commission. Alabama By-Products Corp., FMSHRC Docket 

No. BARB 76-153, slip op. at 2 (December 9, 1982); Sewell Coal Company, 

3 FMSHRC 1402, 1403-05 (June 1981). 

4 
and differ as to·its application." Connolly v. Gerald 

Constr. Co., 269 U.S. 385, 391 (1926). Rather, "laws 

[must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he 

may act accordingly." Grayned v. City of Rockford, 408 U.S. 

104, 108-109 (1972). 

Slip op. at 2. We resolved a vagueness challenge in Alabama By-Products 

by interpreting the standard at issue in light of a "reasonably prudent 

person" test (slip op. at 2-3), and we adopt the same approach in the 

present case. 

We hold that the adequacy of a berm or guard under section 

77 .1605(k) is to be measured against the standard of .. whether the 

berm or guard is one a reasonably prudent person familiar with all 

the facts, including those peculiar to the mining industry, would 

have constructed to provide the protection intended by the standard. 

See Alabama By-Products, supra. See also Voegele Company, Inc. v. 

OSHRC, 625 F.2d 1075, 1077-79 (3rd Cir. 1980). 5f The definition of 

berm in section 77.2(d) makes clear that the standard's protective 

purpose is the provision of berms and, by implication, guards that 

are "capable of restraining a vehicle." 2_/ 

Under. our interpretation of the standard, the adequacy of an operator's berms or guards should thus be evaluated in each case by reference 

to an objective standard of a reasonably prudent person familiar with 

the mining industry and in the context of the preventive purpose of the 

statute. When alleging a violation of the standard, the Secretary is 

required to present evidence showing that the operator's berms or guards 

do not measur.e up to the kind that a reasonably prudent person would 

provide under the circumstances. This evidence could include accepted 

safety standards in the field of road construction, considerations unique 

to the mining industry, and the circumstances at the operator's mine. 

Various construction factors could bear upon what a reasonable person 

would do, such as the condition of the roadway in issue, the roadway's 

elevation and angle of incline, and the amount, type, and size of traffic 

using the roadway. In sum, we hold that section 77.1605(k), as construed 

herein, is not unconstitutionally vague and that it is therefore an 

enforceable standard. LI 

2_/ On review the Secretary now proposes a similar test for judging the 

adequacy of a berm or guard. Brief for Sec'y at 14-16. 

6/ "Restraining a vehicle" does not mean, as U.S. Steel suggests, 

absolute prevention of overtravel by all vehicles under all circumstances. Given the heavy weights and. large sizes of many mine vehicles, 

that would probably be an unattainable regulatory goal. Rather, the 

standard requires reasonable control and guidance of vehicular motion. 

7/ The Secretary is privileged under the Mine Act to write a more 

specific berm standard setting forth more detailed specifications for 

construction of safe berms and guards. 

5 
We agree with the judge that the citation in this case was issued 

and litigated by the Secretary largely, if not solely, on the basis of 

the Surface Manual's mid-axle "policy guideline." Although the citation 

makes no reference to the Surface Manual, previously we have cautioned 

the Secretary that informal materials like the Inspection Manual are 

not binding on the Commission and do not control over the language of 

standards. See Alabama By-Products, supra, slip op. at 5; King Knob 

Coal Co., Inc., 3 FMSHRC 1417, 1419-23 (June 1981); Old Ben Coal Co., 

2 FMSHRC 2806, 2809 (October 1980). Reliance on the mid-axle guideline, 

without more, does not necessarily establish the berm or gu~rd that a 

reasonably prudent person would have constructed under the circumstances. 

If the Secretary believes that a berm of mid-axle height is indeed what . 

a reasonable person would provide in a particular case, the Secretary 

must prove that by a preponderance of credible evidence. We thus approve 

in result the judge's determination that the Secretary was not entitled 

to summary decision on the basis of his internal guideline alone. 

Under our rules, a motion for summary decision may be granted only 

if the entire record shows no genuine issue of material fact and the 

moving party is entitled to a·decision as a matter of law. 29 C.F.R. 

§ 2700.64(b). Having found the standard invalid, the judge did not 

determine all factual issues necessary to a decision in this case. We 

have concluded above that the standard is valid, and our review of the 

record indicates to us that material factual issues remain to be decided 

before it can be determined whether a violation occurred. 

To prove 'the allegation of "inadequate" berms requires evidence as 

to what type of berm or guard a reasonably prudent person would install 

under the circumstances. With respect to the area where the guard was 

dislodged, a prima facie case o~ violation may have been established, but 

the judge must make findings as to whether the guard was actually missing 

and whether U.S. Steel established a valid defense in its claim that the 

guard ·was being replaced·. 8/ Without this kind of evidence and such 

!indings, the entry of sumiiiary decision was inappropriate. Accordingly, 

~e remand this proceeding in order to afford the parties the opportunity 

to present any additional evidence and argument with respect to the alleged 

violation in accordance with the principles set forth above. 

8/ ·we express no view at this time on the viability of U.S. Steel's 

asserted defense to this' aspect of the citation. 

6 
For the foregoing reasons, the judge's decision is reve~sed and the 

proceeding is remanded for proceedings consistent with this decision. 

L. Clair Nelson, Commissioner 

7 
Distribution 

Louise Q. Symons, Esq. 

U.S. Steel Corporation 

600 Grant Street, Rm. 1580· 

Pittsburgh, Pennsylvania 15230 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge George Koutras 

Fed. Mine Safety & Health Rev. Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

8 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

WILLIAM A. HARO 

v. 

MAGMA COPPER COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 28, 1983 

Docket No. WEST 81-365-DM 

ORDER 

William, A. Haro has petitioned for discretionary review prose of 

a decision of an administrative law judge issued on November 1, 1982. 

Magma Copper has filed a motion requesting that the petition be dismissed as. untimely. For the reasons that follow, the petition is 

dismissed as untimely. · 

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

seq., provides that "any person adversely affected or aggrieved by a 

decision of·an administrative law judge, may file and serve a petition 

for discretionary review by the Commission of such decision within 30 

days after the issuance of such decision." 30 U.S.C. § 823(d)(2)(A)(i) 

(emphasis added). Rules 5(d) and 70(a) of the Commission's rules or 

procedure provide that "filing of a petition for discretionary review is 

effective only upon receipt." 29 C.F.R. §§ 2700.5(d), 70(a). The 

decision of the administrative law. judge becomes the final decision of 

the Commission 40 days after its issuance unless the Commission has 

directed review 6f the decision during that period. 30 U.S.C. § 823(d)(l). 

The administrative law judge's decision in this case was issued on 

November 1, 1982. The fortieth day following the issuance of the judge's 

decision was December 11, 1982. The petition for discretionary review 

was not mailed until December 22, 1982. It was not received, and therefore filed, at the Commission until December 27, 1982, fifty-six days 

after the issuance of the judge's decision. Accordingly, the petit~on 

for discretionary review was not filed until after the decision of the 

judge became a final order of the Commission by operation of law. 

30 u.s.c. § 823(d)(l). 

In the petition, Haro states that he first learned of the judge's 

decision on December 6, 1982, and that the attorney who represented him 

in the proceedings before the judge can confirm the date of his notif ication of the judge's decision. Haro also states that the attorney did 

not petition for review of the judge's decision because of a potential 

conflict of interest with Magma Copper Company. We construe these 

9 83-1-14 
representations to be in effect a request for relief from a final 

Commission order. 29 C.F.R. § 2700.l(b) (Federal Rules of Civil Procedure apply in absence of applicable Commission rule); Fed. R. Civ. P. 

60 {Relief from Judgment or Order). 

We have reviewed Haro's representations concerning the late filing 

of the petition against the standards set forth in Fed. R. Civ·. P. 

60(b)(l). 1./ Boone v. Rebel Coal Company, 4 FMSHRC 1232 (1982). See 7 

Moore's Federal Practice § 60.22[2]; 11 Wright & Miller, Federal 

Practice and· Procedure § 2858. Even if Haro's assertion that he first 

learned of the decision on December 6 is accepted as fact, Haro has not 

made any representations that his late receipt of the decision was due 

to factors outside of his control or that of his attorney. The potential 

conflict of interest that allegedly prevented Haro's attorney, who 

represented him at the hearing and filed a post-hearing brief on his 

behalf, from filing a petition with the Commission is not explained. In 

view of the extraordinary nature of reopening final judgments, lack of 

sufficient information substantiating a request for relief can be fatal 

to such claims. 7 Moore's at § 60.22[2], p. 257. Moreover, Haro waited 

more than two weeks after D~cember 6 to prepare and mail a petition two 

paragraphs in length. ·This delay does not demonstrate diligence under 

the circumstances. Haro has had two previous cases before the Commission 

and should b_e familiar with its procedures. :?:._/ 

1./ Fed. R. ·Civ •. P. 60(b)(l) provides:· 

On motion and upon such terms as are just, the court may relieve a 

party or his legal representative from a final judgment, order, or 

proceedi~g for the following reasons: (1) mistake, inadvertence, 

surprise~ or .excusable ne·glect. ••• 

2/ The present situation is not analogous to that involved in Duval 

Corp~ v. Donovan & FMSHRC, 650 F.2d 1051 (9th Cir. 1981). In Duval the 

operator's petition for discretionary review was filed on the thirtyfirst day after the issuance of the administrative law judge's decision. 

Thus, although the petition for review was untimely filed under the Act 

and the Counnission's rules, the judge's decision had not become a final 

order of the Commission because 40 days had not passed since its .issuance. 

30 U.S.C. § 823(d)(l). In a Duval situation, the inquiry is whether 

good cause for the untimely filing has been. established. Valley Rock 

& Sand Corp., WEST80;..3-M (March 29, 1982); McCoy v. Cresent Coal Co., 2 

FMSHRC 1202 (June 1980). In the present case, however, the judge's 

decision became a final order of the Commission and, therefore, the 

request for relief is appropriately addressed under Fed. R. Civ. P. 

60(b). 

10 
Accordingly, we grant Magma's motion to dismiss the petition as 

untimely. 

Commissioner 

L. Clai Nelson, 

~ Commissioner 

11 
Distribution 

William A. Haro, Esq. 

P.O. Box 1462 

Florence, Arizona 85323 

N. Douglas Grimwood, Esq. 

Twitty, Sievwright & Mills 

1700 Townehouse Tower 

100 West Clarendon 

.Phoenix, Arizona 85013 

12 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

A. H. SMITH STONE COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 28, 1983 

Docket No. VA 81-51-M 

DECISION 

This civil penaltyproceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 !:!~· (1976 & Supp. V 1981), 

and involves the interpretation and application of 30 C.F.R. § 56.4-35. 

The cited ~tandard provides: 

Mandatory. Before any heat is applied to pipelines or containers which have contained flammable or combustible substances, they shall be 

drained, ventilated, thoroughly cleaned of residual substances and filled with either an inert 

gas or, where compatible, filled with water. 

The administrative law judge concluded that A. H. Smith Stone Company 

("Smith") violated the standard and assessed a $1,000 penalty. 1/ For 

the following reasons, we affirm the judge's decision. 

On November 24, 1980, an accident occurred at Smith's Culpeper, 

Virginia crushed stone operation, when a miner attempted to cut with a 

welding torch a used 55-gallon oil drum. The drum exploded and the 

employee was critically injured. After an investigation of the accident, 

MSHA issued a citation charging a violation of the standard for a 

failure to _have the drum purged of flammable substances before heat was 

applied to it. 

Used drums that had contained flammable substances, such as fuel 

oil, lubricants, or antifreeze, were customarily stored at Smith's 

Culpeper plant behind a company trailer. The used drums were returnable for credit towards purchase of full barrels, and were picked up at 

the plant for that purpose by the distributor. Some drums were kept at 

the plant for re-use as trash barrels or as storage drums for fuel or 

lubricants. When a drum was to be re-used as a·trash receptacle, Smith 

would have its employees cut off the drum top with a torch on company 

:!I The judge's decision is reported at 3 FMSHRC 2927 (December 198l)(ALJ). 

83-1-15 

13 
premises. Smith also had a practice of giving used drums to employees 

upon request for their personal use. 3 FMSHRC at 2931-32; Tr. 55-56, 

85-86. The used drums at the Culpeper plant were not drained, ventilated, 

cleaned, or filled with inert gas or water before being put behind the 

trailer, and were stored with their plugs in place. J:../ 

On the day of the accident, the miner in question asked the plant 

superintendent for a used 55-gallon oil drum. Although it appears that 

the employee did not explain the reason for his request, the superintendent assumed that he wanted the drum for his personal use. 3 FMSHRC 

at 2931-32; Tr. 83-86. 3/ The superintendent gave the employee permission 

to take the drum. The employee then obtained from a fellow miner a 

torch for cutting the drum, but he did not remove the plug or purge the 

drum before using the torch. The drum exploded when he applied the 

torch to it and he received fatal injuries. A subsequent investigation 

revealed that a residue of petroleum distillate inside the drum had been 

ignited by the heat of the torch. 

The judge based hi$ conclusion that Smith violated section 56.4-35 

on the evidence that "[the employee] applied a. torch to a container 

which had contained combustible or flammable oil without draining, 

ventilating, and cleaning the barrel." 3 FMSHRC at 2932. In assessing 

the penalty, the judge also determined that Smith was negligent. The 

judge found that Smith knew or should have known that it was possible 

the miner would cut the oil drum on company premises. 3 FMSHRC at 2933. 

The judge emphasized that Smith permitted its employees to take used 

drums for personal use, and also at times instructed employees to cut 

drums on company property for such company uses as making trash barrels. 

Id. The judge concluded that "[w]hile [Smith] did attempt to instruct 

the employees as to the proper procedure for purging drums, management 

could have been more diligent in its attempts to insure that all drums 

were properly ventilated and cleaned." Id. 

On review Smith, proceeding pro se, commingles liability and 

negligence arguments. Smith does not deny that the miner cut the drum 

without first purging it. The operator contends, however, that it is 

neither liable nor negligent in connection with the incident because it 

had previously instructed the employee in proper purging procedures, 

did not specifically authorize him to cut th~ ~rum on company premises, 

and could not have foreseen that he would do so. We are not persuaded. 

2/ The plant superintendent testified that the plugs were not pulled 

(a procedure that would have allowed some ventilation of the drums) 

because the distributor had requested that the plugs not be removed on 

drums being returned for credit. . 

3/ Testimony at the hearing indicated that the miner intended to use 

the drum at his home as a receptacle for draining oil. Tr. 38, 56-57. 

14 
Concerning the question of liability for a violation, the standard's 

purging requirements are stated in mandatory terms: Before heat is 

applied to a container that has held flammable substances, the container 

"shall be" purged of those substances in the manner prescribed. There 

is no dispute.that on mine premises Smith's employee applied heat to a· 

container that had contained a flammable substance without first purging the container. Smith's various arguments that it should escape 

liability because the miner's actions were unauthorized and careless 

cannot be squared with either the broad and mandatory language of the 

standard or the liability without fault structure of the Mine Act. 

See Southern Ohio Coal Co., 4 FMSHRC 1459, 1462-64 (August 1982). 

see also Sewell Coal Co. v. FMSHRC, 686 F.2d 1066, 1071 (4th Cir. 

1982); Allied Products Co. v. FMSHRC, 666 F.2d 890, 893-94 (5th Cir. 

1982). We therefore affirm the judge's conclusion that a violation 

of the standard occurred. 

Regarding negligence, section llO(i) of the Mine Act requires that 

in assessing penalties the Commission must consider, among other criteria, 

"whether the operator was negligent." 30 U.S.C. § 820(i). Each mandatory 

standard thus carries with it an accompanying duty of care to avoid violations of the standard, and an operator's failure to meet the appropriate 

duty can lead to a finding of negligence if a violation of the standard 

occurs. The fact that a violation was committed by a non-supervisory 

employee does not necessarily shield an operator from being deemed 

negligent. In this type of case, we look to such considerations as 

the foreseeability of the miner's conduct, the risks involved, and the 

operator's supervising, training, and disciplining of its employees to. 

prevent violations of the standard in issue. Southern Ohio Coal Co., 

4 FMSHRC at 1463-64. See also Nacco Mining Co., 3 FMSHRC at 848, 850-51 

(April 198l)(construing the analogous penalty· provision in 1969 Coal 

Act where a foreman committed.a violation). In light of these general 

principles, we affirm the judge's conclusion that the employee's conduct 

was foreseeable and that Smith did not meet its duty of care under the 

circumstances. --

An employee's cutting of a used drum with a torch at Smith's mining 

operation was not an uncommon occurrence. Smith's employees performed 

that task to make barrels for storing or burning trash at the plant. 

The employee in question had previously cut drums on company premises for 

such business purposes, and that function was part of his job description. 

3 FMSRHC at 2931; Tr. 76, 83, 85-86. As the judge found, Smith was also 

"liberal" in allowing its employees to take used drums for their own use 

(3 FMSHRC at 2932), and the same employee had been given drums in the past 

for his personal use. Tr. 55-56, 85. Cutting used drums to make receptacles was a common use of the drums. We thus affirm the judge's finding 

that on the day of the accident ~t was reasonably foreseeable that the 

employee might cut the drum on company property. 

The used drum taken by the employee had.not been purged nor had 

its plug been removed. A plugged, unpurged drum that has contained a 

flammable substance is a highly dangerous instrumentality given an 

ignition source and the consequent possibility of an explosion if heat 

is applied. An operator must address a situation presenting a potential 

source of explosion, as here, with a degree of care commensurate.with 

that danger. Accordingly, it is incumbent upon an operator to maintain 

proper control over a dangerous instrumentality like an unpurged oil drum. 

15 
The judge found that in the past Smith had orally instructed its 

employees in the proper procedures for purging a used drum before 

-cutting it to fuake a trash barrel. We conclude, however, that Smith's 

reliance on past oral instructions when it allowed the employee to take 

the unpurged oil drum did not amount to proper control of that dangerous 

instrumentality. There are a number of potentially a'ppropriate precautions that an operator in Smith's position could have taken to 

maintain control over unpurged drums. For example, Smith could have 

marked unpurged drums, "purge before cutting"; it t:ould have posted at 

the storage area a warning sign reminding employees of appropriate 

purging procedures; cutting could have been permitted only under proper 

supervision in designated areas. The record does not show that Smith 

took any such precautions. Indeed, the superintendent did not repeat 

company instructions on purging when he let the employee take .the 

unpurged drum even though, as we have concluded, it was. foreseeable 

that the employee might cut it with a torch on company premises. !±../ 

Thus, we agree in result with the judge that Smith was negligent 

in not discharging an appropriate duty of care under the circumstances 

of this case. In reaching this conclusion, however, we do not endorse 

the judge's reasoning that an operator in Smith's position should have 

purged all containers that held flammable substances before storing them. 

Although this may indeed be a safe practice to follow, the standard only 

requires purging before heat is applied. Thus, in this case Smith's duty 

of care could have been met by something more than mere reliance on p~st 

oral instruction, but less than the across-the-board purging procedure 

suggested by the judge. 1/ 

4/ Although the superintendent denied authorizing the employee to 

cut the drum on company property, he did not forbid a~y cutting and, 

indeed, testified that he would have given permission for cutting 

had the employee requested it. 3 FMSHRC at 2933; Tr. 87. This 

testimony reveals a manager·ial disposition to allow cutting for 

personal purposes and underscores our conclusion that insufficient 

care was taken when personal use of the drum was approved. 

5/ We also reject two· additional arguments posed by Smith. Smith 

complains that the transcript of the hearing was not made available to 

it. At the hearing, however, ·the judge specifically stated in response 

to Smith's request that transcripts c.ould be obtained from the reporter. 

Tr. 133. Smith also complains of the Secretary's change of position 

from not pleading negligence to alleging negligence just before the 

trial •. Smith fails to show how this pre-trial change of theory was 

prejudicial to it. Smith was informed prior to trial that the Secretary 

would attempt to prove negligence on the basis of new evidence. Tr. 

8-9. A shifting of legal theories based on evidence. revealed through 

discovery or other sources after the initial pleadings is certainly not 

(Footnote continued) 

16 
For the foregoing reasons, we affirm the judge's decision. 

fn. 2_/ continued 

uncommon. The Secretary orally sought a continuance to prepare his 

negligence claim, and Smith did not oppose the motion. Tr. 8-12. Smith 

did not specifically explain to the judge.how it would be legally prejudiced by the change of theory, did not state that it would need extra 

time to prepare any additional defense, and did not attempt to show bad 

faith or dila.tory motive on the Secretary's part. Tr. 8-15. Finally, 

at no time during the administrative hearing did Smith object to the 

introduction of this evidence on the grounds that it was outside the 

scope of the pleadings. We find Smith's conduct tantamount to consent 

to trial of the negligence issue. See in general, Mineral Industries 

and Heavy Construction Group v. OSHRC, 639 F.2d 1289, 1293-94 (5th Cir • 

. 1981). 

17 
Distribution 

Anna Wolgast, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Wheeler Green, Safety Director 

A. H. Smith Stone 

Branchville, Maryland 20740 

Administrative Law Judge George Koutras 

Fed. Mine Safety & Health Rev. Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

18 
Administrative Law Jud~e Decisions 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JIM WALTER RESOURCES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

HINE SAFETY Alm HEALTH 

ADHINISTRATim~ (HSP..A) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY Alm HEALTH 

ADMINISTRATION (USHA), 

Petitioner 

v. 

JHI HALTER RESOUJlCES, INC., 

Respondent 

Application for Review 

Docket No. SE 82-34~R 

Order No. 0757586; 2/19/32 

No. 7 ~line 

Civil Penalty Proceeding 

Docket No. SE 32-53 

A/O llo. 01-01401-03041 F 

No. 7 ~line 

DEC IS IOU 

Appearances: Robert W.-Pollard, Esq., Birmingham, Alabama, and E. Gerald 

Reynolds, Esq., Tampa, Florida, for Jim Walter Resources, Inc.; 

Frederick H. Moncrief, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for the Secretary 

of Labor. 

Before: Aclrainistrative Law Judge Broderick 

STATEMEHT OF THE CASE 

On February 15, 1982, a fatal roof fall occurred at the ~To. 7 Mine of 

Jim Walter Resources (the operator). 'Following an investir:;ation which comnenced 

on February 16, 1982;, HSHA on February 19, 1982,_ issued an imminent danger Order 

of Withdrawal under section 107(a) of the Federal Hine Safety and Health Act 

of 1977, 30 U.S.C. § 817(a) (the Act). The order also alle~ed that the practice 

described in the order was proscribed by the a?proved roof control plan and 

therefore violated JO C.F.R. § 75.200. ' 

20 
Pursuant .to notice, a hearing was held in the Review proceeding in 

Birmingham, Alabama, on September 21, 1982. Uilliam H. ·Pitts, an HSHA roof 

control specialist, testified for the Secretary. Ed Melhorn, an USHA mine 

inspector, was called as a witness by the operator and Charles J. Hager, III 

and Frederick Carr also testified on the operator's behalf. A civil penalty 

case was subsequently filed. Because the ciyil penalty proceeding and the 

review proceeding involve the same order, and similar issues of fact and law, 

they are hereby COUSOl.IDATED. 

Both parties have filed posthearing briefs. On the basis of the evidence 

introduced at the hearing and cons·idering the contentions of the parties, I 

make the following decision. 

FIHDINGS OF FACT 

1. At all times pertinent to these proceedings, Jim Walter was the owner 

and operator ·of the No. 7 ~1ine in Tuscaloosa County, Alabama. 

2. On February 15, 1932, a fatal roof fall occurred in the subject mine 

in the face area of No. 4 entry, Uo. 1 section. 

3. An order of withdrawal was issued on February 19, 1932, which alleged 

that the followinE condition or practice occurring on February 15, 1982, 

constituted an imminent danger and a violation of the approved roof control 

plan: 

A fatal roof fall a~cident occurred on the No. 1 section at 

the face of the No. 4 entry and based on evidence and testimony, 

the victim was installing a support to install line curtain 

and while installing the support the victim was standing more 

than 5 feet inby the permanent roof supports and more than 5 feet 

from the rib or face. The approved roof control plan requires 

that workmen shall be within 5 feet of the face or rib or 

permanent supports while extending line curtain. 

4. On February 19, 1932, a modification of the order of withdrawal was 

issued which permitted mining operations to continue "while the following 

sequence of roof supports are installed to advance the line· curtain and to 

permit HSIIA personnel to evaluate this system:" A minimum of two temporary 

supports are required when any work is performed inby the last row of 

permanent supports. One must be a jack or timber set no more than 5 feet from 

the rib and the other the miner head placed ae;ainst the top. These supports 

shall be not more than 4 feet apqrt and not more than 5 feet inby the last row 

of permanent supports or last temporary support. Any work done inby the last 

row of roof supports shall be <lone between such supports and the nearest face 

or rib. 

21 
5. On February 15, 1982, the continuous miner dislodged the last inby 

safety jack.to which the end of the line curtain was attached as the min~r was 

tranunins back from the face. 

6. The miner operator and miner helper then proceeded inby the permanent 

supports to reset the jack and reattach the line curtain to it. They travelled 

on the left side (the "wide side") of the curtain after examining the roof 

visually and sounding it with a hammer. The miner operator was holding the 

jack to the right side of it and the helper began tightening the screw while 

standing on the left side. A roof rock fell brushing the miner operator and 

knocking him back against the right rib. It fell on top of the helper and 

killed him. The victim was approximately 7-1/2 feet from the right rib and 

5 feet inby the last standing roof jack. He was 10 feet inby the last row of 

permanent roof supports. 

7. The approved roof control plan in effect for the subject mine at the 

time of the.fatality contained the following safety precautions among others: 

"4. When testing roof or installing supports in the face 

area, the work.-nen shall be within 5 feet (less if indicated on 

sketch) of a temporary or permanent support." 

"5. llhen it is necessary to perform any work such as extend 

line curtains or other ventilating devices inby the roof bolts or 

to make methane tests inby the roof bolts, a minimum of two 

temporary supports shall-be installed. This minimum is applicable 

only if they are within 5 feet .of the face or rib and the work is 

done between such supports· and the nearest face or rib." 

8. .The approved ventilation plan in effect for the subject mine at the 

time of the fatality required that a line curtain be maintained to within 

10 feet of the face. The mine liberated considerable methane which required 

an exceptionally high velocity and quantity of air to ventilate the face area. 

Because of this it was necessary to fasten the curtain to the top, the miJ<lle, 

and the bottom of the. temporary support. · 

9. A fatal roof fall occurred at the No. 3 Hine of JiI!l. Walters' on 

November 21, 1979, under circumstances similar to those involved in this case. 

A citation was issued in the prior case charging a violation of 30 C.F.R. 

§ 75.200 because of failure to comply with the approved roof control plan. The 

citation was contested before the Commission. After a hearing, Judge James 

Laurenson found that paragraph 4 of the roof control plan (which is identical 

to the same paragraph in the roof control plan applicable in this case) did not 

require that miners travel between the temporary support and the nearest rib 

when setting supports to extend the line curtain. The Judge granted the notice 

of contest and vacated the citation. Jim Halters v. Secretary, 2 FHSHRC 3276 

(1930). 

22 
10. The Secretary states that Judge Laurenson's decision involved circumstances "virtually identical"·to those in the case before me. 

· 11. The Secretary did not petition for review of Judge Laurenson's 

decision. 

12. Subsequent to Judge Laurenson's decision, there were discussions 

between i1SHA officials and the operator attempting to clarify the requirements 

of paragraphs 4 and 5 of the safety precautions in the roof control plan, but 

no changes were agreed upon. 

13. Subsequent to the fatal roof fall involved herein, there have been 

discussions between HSHA and the operator relating to .. paragraphs 4 and 5 of . 

the precautions in the approved roof control plan. Specifically, a rewriting 

of the above paragraphs permitting the use of the miner head a's roof support 

has been discussed, but the plan has not yet been modified. 

STATUTORY PROVISION 

Section 3(j) of the Act defines an ir:uninent danger as "the existence of any 

condition or practice in a coal or other mine which could reas~nably be expected 

to cause death or serious physical harm before such condition or practice can 

be abated." 

REGULATORY PROVISION 

30 C.F.R. § 75.200 provides as follows: 

Each operator shall undertake to carry out on a continuing 

basis a program to improve the roof control system of each coal 

mine and the means and measures to accomplish such system. The 

roof and ribs of all active underground roadways, travelways, 

and working places shall be supported or otherwise controlled 

adequately to protect persons from falls of the roof or ribs. A 

roof control plan and revisions thereof suitable to the roof 

conditions and mining· system of each coal mine and approved by 

the Secretary shall be adopted and set out in printed form on or 

before May 29, 1970. The plan shall show·the type of support and 

spacing approved by the S~cretary. Such plan shall be reviewed 

periodically, at least every 6 months by the Secretary, taking 

into consideration any falls of roof or ribs or inadequately of 

support of roof or ribs. no person shall proceed beyond the last 

permanent support unless adequate temporary support is provided 

or unless 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. A copy of the plan shall be 

furnished to the Secretary or his authorized representative and 

shall be available to the miners and their representatives. 

23 
ISSUES 

1. Whether the condition or practice described in the order of withdrawal 

existed in the subject mine and, if so, whether it constituted an innninent 

danger. 

2. Whether a violation of the approved roof control plan and therefore 

of 30 C.F.R. § 75.200 was established. 

(a) Hhether the Secretary is estopped or barred from 

asserting that the condition is a violation of the standard by 

reason of the decision in Jim Halters Resources Inc., 2 FMSHRC 

3276 (1980). 

3. If a violation of .the mandatory standard was established, what is the 

appropriate penalty therefor? 

CON CL US IOl~S OF LAW 

Jim Halter Resources, Inc. was subject to ·the provisions of the Federal 

Hine Safety and Health Act in the operation of the No. 7 Hine at all times 

pertinent hereto, and the undersigned Administrative Law Judge has jurisdiction 

over the parties and subject matter of this proceeding. 

IMMINENT DANGER 

The existence of an imminent danger and the propriety of an imminent danger 

order of withdrawal do not depend upon the existence of a violation of a 

mandatory standard. Freeman Coal l1ining Corporation, 2 IBMA 197. An inu:iinent 

danger under the Act is not limited to situations involving "immediate danger" 

but includes conditions that "would induce a reasonable man to estimate that, 

if normal operations •.. proceeded, it is at least just as probable as not 

that the feared accident or disaster would occur before elimination of the 

danger." Old Ben Coal Corp. v. Interior Bd. of Hine Op. App., 523 F.2d 25, 32 

(7th Cir. 1975), quoting Freeman Coal ~1ining Co. v. Interior Bd. of :1ine Op. App. 

504 F.2d 741, 743 (7th Cir. 1974). 

The order under review here alleges that a miner was standing more than 

5 feet inby the permanent.roof supports and more than 5 feet from the rib or 

face, and the evidence introduced at the hearing establishes that such were the 

facts (Finding of fact No. 6). I1SIIA roof control specialist Pitts considers 

this practice equivalent to travelling or working under unsupported roof and 

therefore an imminent danger. His opinion was based in part on the fatality 

which occurred here and the one which occurred in Jim Halters No. 3 !.1ine 

referred to in F:tnding uf Fact No. 9. 

24 
I conclude that Mr. Pitt's opinion that the condition or practice which 

was shown to exist here would probably re~ult in an injury was certainly a 

reasonable one. The evidence is clear that the condition or practice described 

not only could reasonably be expected to cause death or serious physical harm, 

but that in fact it did cause or at least contribute to the death of two of the 

operator's employees. The contention of the operator that the rib conditions 

may also present a hazar<l in no way negates the dan3er posed by unsupported 

roof. The fact that the condition or practice was permitted by the roof control 

plan (if it was) does not negate the existence of an im..'1inent danger. Therefore, 

I conclude that working or travelling more than 5 feet inby permanent supports 

and more than 5 feet from a rib or face is an· imminent danger and the withdrawal 

order was properly issued. 

The operator argues that the practice cannot constitute an imminent danger 

since it has been followed for many years in the subject mine and in other 

mines in the district. Non sequitur. The fact that an imminently dangerous 

condition has existed and been tolerated is no argument for its continuance. 

The operator also argues that the 3 day delay between the investigation and 

the issuance of the order indicates that the condition was not imminently 

dangerous. HSIIA' s explanation for the time period is that there were discussions with State officials, Mine ManaGement and Union representatives concerning 

the practice, and that when· ~line Uanagement stated that the practice would 

continue, it was decided to issue the withdrawal order. Clearly, the withdrawal 

order should have been issued immediately after the investigation, but the delay 

hardly establishes that the condition or practice was not imminently dangerous. 

RES JUDICATA/COLLATERAL ESTOPPEL 

Judge Laurenson's decision, which involved, as the Solicitor states, 

"virtually identical circumstances" to those in the case before me, held that 

paragraph 4 of the precautions in the roof control plan governswhen roof 

supports are being installed to extend the line curtains. Since paragraph 4 

does not require that miners stay within 5 feet of a rib or face, he vacated 

the citation and dismissed the civil penalty proposal. Judge Laurenson's 

decision followed .a formal adversary hearing; both parties filed posthearing 

briefs. The government did not file a petition for discretionary review with 

the Commission. Counsel states "that some consideration was given to whether 

or not to file a [petition for review]" but in any event, it was not filed. 

Therefore, Judge Laurenson's decision was the final decision of the Colih~ission. 

Following that decision MSHA could have petitioned for review (and 

appealed to the Court of Appeals if the petition was denied) or it could have 

proceeded to modify the roof control plan. It <lid neither, but rather chose 

to isnore the decision and yet continue to enforce its interpretation of the 

roof control plan which had been rejected. The parties to the two proceedings 

are the same, the roof control plan has not been changed, the circumstances 1~n 

the two cases· are "virtually identical." It would appear that if ~ judicata 

is ever applicable to administrative proceedings, it is applicable here. 

25 
The Supreme Court stated in United States v. Utah Construction and Mining 

Co., 384 U.S. 394 (1966) at 421: 

When an administrative agency is acting in a judicial 

capacity and resolves disputed issues of fact properly before it 

which the parties have had an adequate opportunity to litigate, 

the courts have not hesitated to apply res judicata to enforce 

repose. 

* * * * * * 

In the present case, the Board was acting in a judicial 

capacity when it considered the ••• claims, the factual disputes 

resolved were clearly relevant to issues properly before it and 

·both parties had a full and fair opportunity to argue their 

version of the facts and an opportunity to seek court review of 

any adverse findings. There is, therefore, neit·her need nor 

justification for a second evidentiary hearing on these matters 

already resolved as between the two parties. 

See also Mitchell v. National Broadcasting Co., 553 F.2d 265 (2nd Cir. 

1977); Atlantic Richfield Company v. Federal Energy Administration, 556 F.2d 

542 (T.E;C.A. 1977); Bowen v. United States, 570 F.2d 1311 (7th Cir. 1973); 

Continental Can v. Marshall, 603 F.2d 590 (7th Cir. 1979). In the Continental 

Can case, the court held (594-5) that the tests are whether the issue raised in 

the subsequent case is the same as that decided in the prior case; ~Vhether the 

issue was actually litigated; whether the decision in the prior case depended 

on the resolution of the issue; and whether the decision was final. ~he 

Secretary asserts in his brief that Judge Laurenson's decision was not "final" 

and refers to Commission Rule 73 which states that an unreviewed decision of a 

judge is not a precedent. This rule has nothing to do with finality or 

res judicata, but with stare decisis, a wholly different doctrine. I concluJe, 

following the tests in Continental Can that Judge Laurenson's decision is 

res judicata and the Secretary is precluded from challenging it in the proceeding 

before me. 

It is grossly unfair to assert, as the Solicitor does in his brief, that 

"What is at stake, as these two cases dramatically illustrate, 

is human life. However well ·intentioqal nanagement may have been 

in relying on the prior decision, the cost of that reliance was a 

life. Such a result is not to be tolerated by a law the stated 

purpC?se of which is the preservation of life." 

Judge Laurenson's decision was issued ~ovember 14, i980. The fatal injury 

involved herein occurred February 15, 1982. Since the Secretary chose not to 

appeal, he had ample opportunity to effect changes in the roof control plan. 

I!e failed to do so. 

26 
Since I have concluded that Judge Laurenson's decision is res judicata as 

between the parties, I conclude that a violation of 30 C.F.R. § 75.200 has not 

been shown. Further discussion of the merits of the case or of Judge Laurenson's 

decision is unnecessary and inappropriate. 

PENALTY 

Since I have concluded that a violation of a l!landatory safety standard was 

not established, the penalty proceeding must be dismissed. An imminent danger 

order of withdrawal will not per ~ support a penalty assessment. 

ORDER 

Based upon the above findings of fact and conclusions of law, IT IS 

ORDERED: 

1. The withdrawal order issued under section 107 of the Act, as a 

withdrawal order is AFFIRMED. 

2. The withdrawal order, insofar as it charges a violation of 30 C.F.R. 

§ 75.200, is VACATED. 

3. The penalty proceeding is DISHISSED. 

~uw.s A1J wdvvi:£ 

James A. Broderick 

· Administrative Law Judge 

Distribution: By certified mail 

Robert W. Pollard, Esq., Post Office Box C-79, Birmingham, AL 35233 

H. Gerald Reynolds, Esq., 1500 N. Dale Mabry Highway, Tampa, FL 33607 

Frederick 1-!. Moncrief, Esq., Office of the Solicitor, U.S. i)e·partment of Labor, 

4015 Wilson Blvd., Arlington, VA 22203 

George D. Palmer, Esq., Associate Re8ional Solicitor, U.S. nepart~ent of Labor, 

1929 9th Avenue South, Birningha1~, AL 35256 

27 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 

Application for Review 

of Discrimination 

61983 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Applicant 

v. 

Docket No. PENN 81-209-D 

MSHA Case No. PITT cn-81-10 

SHANNOPIN MINING COMPANY, 

Respondent 

Shannopin Mine 

Sol No. 12874 

FURTHER FINDINGS OF FACT 

AND 

FINAL ORDER 

On November 30, 1982, a decision was entered on the issue of a violation 

of section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801, et ~· The decision deferred a final order pending submissions from 

the parties as to the appropriate relief to be granted based on the decision. 

FINAL ORDER 

Having considered the parties' submissions with respect to a proposed final 

order, and a post-decision motion by the United.Mine Workers of America to 

intervene for the purpose df submitting a proposed order for relief, it is hereby 

ORDERED: 

1. The UMWA's motion to intervene is DENIED as being untimely and lacking 

good cause oμ the merits. 

2. The Secretary's proposed supplemental stipulations are APPROVED and 

hereby INCORPORATED as FURTHER FINDINGS OF FACT in this proceeding. 

3. Based on the record as a whole, and on the statutory criteria for 

ass.essing a civil penalty for a violation of ·the Act, Respondent is ASSESSED a 

civil penalty of $800 for its violation of section 105(c) of the Act as found in 

the above-mentioned decision; Respondent shall pay such penalty to the Secretary 

within 30 days from the date of this Order. 

4. Respondent shall make payment to George Mateleska in the amount of 

$392.40, with interest.at the rate of 12 percent per annum accruing from March 5, 

1981, until paid, to comp·ensate him for the 5 days lost pay incurred as a result 

of Respondent's unlawful suspension of him. 

28 
5. Respondent shall make payment to George Mateleska in the amount of 

.$235.44, with interest at the rate of 12 percent per annum accruing from 

Dec.ember 16, 1981, until paid, to compensate him for his expenses in connection 

with this litigation. 

6. Respondent shall expunge from its records all references to the suspension 

of George Mateleska which has been found herein to have been a violation of 

section 105(c.) of the Act. 

7. Respondent shall post a copy of the decision of November 30, 1982, and 

a copy of this Order on the mine bulletin board, or at s·uch other conspicuous 

place where notices are normally posted for employees of the Shannopin Mine, 

and keep such copies posted, unobstructed and protected from the weather, for·a 

consecutive period of at least 60 days. 

WILLIAM FAUVER, JUDGE 

Distribution Certified Mail: 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department of Labor, 

Room 14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104 

Jane A. Lewis, Esq., Thorp., Reed & Armstrong, 2900 Grant BUilding; Pittsburgh, 

PA 15219 

. Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th Street, N.W., 

Washington, DC 20005 

29 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

REX ALLEN, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Complainant 

JAN 111983 

Complaint of Discharge, 

Discrimination, or Interference 

Docket No. CENT 82-66-DM 

UNC MINING AND MILLING, 

Respondent MD 80-156 

Appearances: 

Churchrock Operations 

DECISION 

Grant L. Foutz, Esq., Gallup, New Mexico, appeared for 

Complainant; 

Lindsay Lovejoy, Esq., Stephenson, Carpenter, Crout & Olmsted 

and Lea Brownfield, Esq., all of Santa Fe, New Mexico, appeared 

for Respondent. 

STATEMENT OF THE CASE 

The complaint filed herein alleges that Complainant was discharged on 

March 26, 1980, from the position he h~ld with Respondent, as a result of activity protected under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801. Complainant filed a complaint of discrimination with l1SHA on August 9, 

1980. MSHA denied the complaint by a lett~r dated January 6, 1982. The complaint was filed with the Review Commission on January 25, 198.2. Pursuant to 

notice, the case was heard in Gallup, New Mexico, on October 19, 1982. Rex 

Allen, Gilbert MacLellan, Robert Robb and Ron MacLel!an were called as witnesses 

by Complainant. No witnesses were called by Respondent. Both parties have 

filed posthearing briefs with proposed findings of fact and conclusions of law. 

Based on the entire record, and considering the contentions of the parties, I 

make the following decision. 

FINDINGS OF FACT 

1. At all dues pertinent to this proceeding, Respondent was the operator 

of the Northeast Church Rock Mine near Gallup, New Mexico. 

30 
2. Complaint was employed by Respondent beginning September 15, 1972, as 

an oiler. He was promoted to mechanic trainee and then journeyman mechanic in 

1973. Later that year he became lead mechanic. In 1974 he was temporarily 

maintenance superintendent and then became general underground foreman. He 

supervised approximately ·150 employees while in this position. For about 

1-1/2 years he was placed in charge of planning and coordinating and in about 

1976 became underground general maintenance foreman in which position he 

continued until January, 1980, when he temporarily did some surface projects. 

He returned to his underground duties in February 1980, and was classified as 

1700 level foreman. He left the employ of Respondent on March 26, 1980. He 

. was reemployed by Respondent in November 1980 washing and servicing cars. He 

was a journeyman mechanic ~t the time of the hearing. 

3. In 1977 and 1978, Complainant received very few complaints regarding 

safety from those who worked under him--approximately 10 each year. In 1979, 

such safety complaints went up to perhaps 10 each day. At least two employees 

left the company because they were concerned about safety. The alleged unsafe 

conditions included loose rock, cave-ins, and improper ventilation. Complainant's 

employees were required to travel over muck piles and ground fall piles to get 

to equipment. A number of citations were issued by MSHA inspectors in 1979 for 

these conditions. Complainant reported these conditions to his supervisors and 

to the Safety Department "plenty of times." ' 

4. On one occaston in April of 1979, a loader had been taken out of 

service by Complainant's crew because it did not have brakeS'. Thevload~r was 

"red-tagged." However, the production crew ignored the red tag and put the 

loader in service. An MSHA inspector discovered that it had no br.akes and 

issued a citation. Complainant was upset and voiced his feelings to his 

supervisors. In February, 1980, a haulage truck was taken out from the shop 

even though it had a faulty shift lever. An accident occurred when the truck 

jumped out of gear. 

5. On many occasions, Complainant reported inadequate ventilation in his 

shops which caused dizzyness and disorientation in his employees. His supervisors told him they were trying to correct the condition and that if his 

employees didn't like it they could quit. 

6. Production meetings attended by Complaint were held twice daily. 

Complainant brought up safety complaints at thes_e meetings and was accused of 

complaining and griping. 

7. In_ early 1979, Complainant reported that .loose rock and ground falls 

affected part of the maintenance shop •. The roof bolts had become loose. An 

attempt was made to .correct the sitation but eventually the shop roof caved 

in. 

31 
9. In January 1980, Complainant was transferred to the surface and was 

under the supervision of Jack Miller. From January 25, 1980 until March 26, 

1980, his supervisor was Mike Robb who took over as maintenance superintendent. 

For about 9 months prior to January 25, 1980, Robb had been resident engineer 

at the subject mine, but during that time, he had no supervisory duties with 

respect to Complainant. Complainant returned to underground duties in early 

February, 1980. His job title was 1700 level foreman and he was under the 

immediate supervision of Jerry Troxell who became general underground maintenance 

foreman. 

10. In February or early March, 1980, Robb told Complainant that he 

thought the truck shop "was a complete mess" and that he would have to improve 

the condition of the shop. 

11. During the time Robb was his supervisor, Complainant did not make 

any safety complaints, oral or written, to him, nor was Robb aware of safety 

complaints made to prior supervisors. 

12. On March 25, 1980, Complainant was asked by Troxell to come in to 

Mike-Robb's office. Robb, Troxell, Wayne Bennett, head of Respondent's 

Industrial Relations Department and Complainant were present. Robb informed 

Complainant that lack of water control had caused equipment to break down, 

parts were not being properly handled and Complainant "did a great deal of 

complaining and very little action." The complaints concerned lack of parts 

availability and production abuse of equipment. Robb told ~ompla~~ant_that 

his performance was not satisfactory and that henceforth he would confer with 

Robb and Troxell every Monday morning and discuss his job performance the 

previous week. A deadline of May 1 was set for Complainant to show improvement. 

Complainant did not bring up any safety complaints or concerns during this 

meeting. 

· DISCUSSION 

There is sharp disagreement between Complainant and Robb as to what took 

place at the meeting. Neither Bennett nor Troxell was called as a witness. 

According to Robb both were employed by other companies out of the State of 

New Mexico. Complainant stated that Robb told him he (Complainant) was not 

doing his job, but was going around complaining all the time. Complainant took 

this to refer to safety complaining. Robb testified that he pointed out 

specific instances where Complainant's work was unsatisfactory. Complainant 

testified that at the conclusions of the meeting he was told that he could 

resign and have "layoff status, severance pay (~nd) insurance coverage" for a 

period of time, or he would be terminated. An answer was demanded by 8:00 the 

following morning. Robb testified that at the conclusion of the meeting, 

Complainant was told that he would in effect be placed on probation, would be 

counselled every Monday and would have to show improvement by May 1, 1980. I 

am generally accepting Mr •. Robb's version of the meeting. This is based in part 

32 
on my assessment of- the credibility of the two men as witnesses and on the 

interest or lack of interest in the outcome of this litigation. More 

importantly, it is based on the memorandum of the meeting prepared by Robb on 

March 27, 1980, which is part of Complainant's Exhibit 2 and which supports 

Robb's version of the meeting. 

13. On March 26, 1980, Complainant met with Bennett and submitted a 

"resignation with layoff status." He continued on the payroll with severance 

pay to July 15, 1980. He also retained insurance benefits. 

14. Complainant's mother was seriously .ill in April.and May, 1980, and 

was under intensive care and thought to be dying. 

15. On August 8, 1980, Complainant filed his initial complaint with MSHA. 

An investigation was conducted andMSHA denied the complaint on January 6, 1982. 

Complainant filed his complaint with the Review Commission on January 25, 1982. 

DISCUSSION 

Complainant offered in evidence a copy of the MSHA Investigation file 

which he received from MSHA Dallas Office. Respondent objected and I excluded 

the documents primarily because substantial portion of the investigation report 

and of the transcripts of interviews had been excised. ·complainant did not 

attempt to subpoena the record or the investigator. The exhibit as offered is 

to some extent unintelligible and possibly prejudicial. I conclude that it 

would be unfair to the parties and unhelpful to me to admit~the exhibi~. 

16. Robb left Respondent's employ on March 30, 1980. 

1980, that he was going to leave on March 30. He expected 

of Complainant referred to in Finding of Fact No. 12 would 

Troxell. 

STATUTORY PROVISION 

Section 105(c) of the Act provides in part as follows: 

He knew on March 25, 

that the counselling 

be conducted by 

(c)(l) No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination against or 

otherwise interfere with the exercise of the statutory rights of any 

miner, representative of miners or applicant for employment in any 

coal or other mine subject to this Act because such miner, representative of miners, or applicant for employment • • • has filed or 

made a complaint under or related to this Act, including a complaint 

notifying the operator or the operator's agent, or the representative 

of the miners at the coal or other mine of an alleged danger or safety 

or health violation in a coal or other mine • • • or because of the 

exercise by such miner, representative of miners or applicant for 

employment on behalf of himself or others of any stautory right 

afforded by this Act. 

33 
(2) Any miner or applicant for employment or representative 

of miners who believes that he has been discharged, interfered 

with, or otherwise discriminated against by any person in violation of this subsection may, within 60 days after such violation 

occurrs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall 

forward a copy of the complaint to the respondent and shall cause 

such investigation to be made as he deems appropriate. Such 

investigation shall commence within 15 days of the Secretary's 

receipt of the complaint, and if the Secretary finds that such 

complaint was not frivolously brought, the Commission on an 

expedited basis upon application of the Secretary, shall order 

the immediate reinstatement of the miner pending final order on 

the complaint. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, 

he shall immediately file a complaint with the Commission, with 

service upon the alleged violator and the miner, applicant for 

employment, or representative of miners alleging such discrimination or interference and propose an order granting appropriate 

relief. The Commission shall afford an opportunity for a hearing 

(in accordance with section 554 of title 5, United States Code, 

but without regard to subsection (a)(3) of such section) and 

thereafter shall issue an order, based upon findings of fact, 

affirming,_ modifying, or vacating the Secretary's proposed order,. 

or directing other appropriate relief.. Such order shall become 

final 30 days after its issuance. The Commission shal~ have · 

authority in such proceedings to require a person committing a 

violation of this subsection to take such affirmative action to 

abate the violation as the Commission deem~ appropriate, including, 

but not limited .to, th~ rehiring or reinstatement of the miner to 

his former position with back pay and interest. The complaining 

miner, applicant, or representative of miners may present additional evidence on his own behalf during any hearing held pursuant 

to his paragraph~ 

(3) Within 90 days of the receipt of a complaint filed under 

paragraph (2), the Secretary shall notify, in writing, the miner, 

applicant for employment, or representative of miners of his 

determination wli.ether a violation has occurred. If the Secretary, 

upon investigation, determines that the provisions of this subsection have not been violated, the complainant shall have the 

right, within 30 days of notice of the Secretary's determination, 

to file an action in his own behalf before the Commission, charging discrimination or interference in violation of paragraph (1). 

The Commission shall afford an opportunity for a hearing (in 

accordance with section 554 of title 5, United States Code, but 

without regard to subsection (a)(3) of such section), and thereafter 
shall issue an order, based upon findings of fact, dismissing or 

sustaining the complainant's charges and, if the charges are 

sustained, granting such relief as it deems appropriate, including 

but not limited to, an order requiring the rehiring or reinstatement of the miner to his former position with back pay and interest 

or such remedy as may be appropriate. Such order shall become 

final 30.days after its issuance. Whenever an order is issued 

sustaining the complainant's charges under this subsection, a sum 

equal to the aggregate amount of all costs and expenses (including 

attorney's fees) as determined by the Commission to have been 

reasonably incurred by the miner, applicant for employment or 

representative of miners for, or in connection with, the institution and prosecution of such proceedings shall be assessed against 

the person committing such violation. Proceedings under this section shall be expedited by the Secretary and the Commission. Any 

order issued by the Commission under this paragraph shall be 

subject to judicial review in accordance with section 106. 

Violations by any person of paragraph (1) shall be subject to the 

provisions of sections 108 and llO(a). · 

ISSUES 

1. Whether the complaint is barred by the statute of limitations or 

laches. 

2. Whether Complainant voluntarily left his employment with Respondent on 

March 26, 1980, o.r was discharged, actually or constructively. 

3. If Complainant was discharged, was it related to activity protected 

under the Act. 

4. If Complainant was discharged for protected activity, what relief 

should be awarded. 

CONCLUSIONS OF LAW 

1. Complainant and Respondent were subject to the provisions of the 

Federal Mine Safety and Health Act at all times pertinent hereto, and the 

undersigned Administrative Law Judge has jurisdiction over the parties an~ 

subject matter of this proceeding. 

2. The complaint is not barred by the limitations for filing claims set 

out in section lOS(c) of the Act or by laches. 

35 
DISCUSSION 

Complainant filed his complaint with MSHA on August 8, 1980, and his 

employment was terminated March 26, 1980. However, he remained on the payroll 

by reason of severance pay to July 15, 1980. He claims that he was distracted 

because of his mother's illness at the time. Respondent asserts that prejudice 

resulted from the delay because former supervisors Jack Miller, Wayne Bennett, 

Jerry Troxell and Mike Robb have left Respondent's employ, and all but Robb 

are now living and working outside of New Mexico. 

It has been held that the statutory filing deadlines are not jurisdictional. Secretary/Bennett v. Kaiser Aluminun and Chemical Corporation, 3 FMSHRC 

1539 (1981). See also Christi~n v. South Hopkins Coal Co., 1 FMSHRC 126 (1979); 

Local 5429 v. Consolidation Coal Co., 1 FMSHRC 1300 (1979); S. Rep. No. 95-181, 

95th Cong., 1st Sess. at 36, reprinted in LEGISLATIVE HISTORY of the FEDERAL 

MINE SAFETY AND HEALTH ACT OF 1977, Senate Subcommittee on Labor, Connnittee on 

Human Resources (July 1978) 624 (hereinafter.LEG. HIST.) ("It should be 

emphasized, however, that these time-frames [in 105(c)] are not intended to be 

jurisdictional.") 

The questions to be considered here are whether Complainant showed 

justifiable circumstances for his delay in filing and whether the delay 

prejudiced Respondent. See Herman v. Imco Services, 4 FMSHRC --- (December 15, 1982). 

The fact that Complainant remained on the payroll and s_μffereg no.Jllonetary 

loss is, I conclude, sufficient reason justifying a delay in filing. It is 

conceivable that Complainant feared that filing a claim could jeopardize his 

·severance pay rights. Although Respondent claims prejudice, it did not show 

that an attempt was made to preserve testimony when it became aware that the 

claim was filed, or that it attempted to obtain the testimony of the former 

employees by deposition.· Complainant cannot be blamed for the delay between 

the time he filed with MSHA and MSHA's decision 16 months later. 

3. The complaints which Complainant voiced to his superiors concerning 

unsafe and unhealthful conditions under which he and his crew worked, such as 

those described in findings of fact 3 through 7, constituted activity protected 

under the Mine Safety Act. Any adverse action because of this protected 

activity would violate section 105 of the Act. 

4. Complainant left his employment with Respondent on March 26, 1982, 

voluntarily. He was not discharged and the termination of his employment was 

not related to any activity protected under the Mine Safety Act. 

36 
DISCUSSION 

In Finding of Fact No. 12, I accepted the testimony of Robb to the effect 

that the discipline imposed on Complainant at the March 25, 1980, meeting was 

to place him on a form of probation. He was not discharged. ·Apparently 

unwilling to accept the probationary status, he voluntarily resigned. The 

discipline was imposed solely by Robb. It resulted.from Robb's evaluation .of 

Complainant's work performance. Whether the evaluation was accurate or whether 

it was fair is not a matter for me to decide. I accept the testimony of Robb 

that Complainant made no safety related complaints to him and that he (Robb) 

was not aware of any such complaints having been made to others. Therefore, 

the discipline imposed by Robb, such as it was, was not related to activity 

protected under the Act. 

5. Since Complainant·failed to establish that he was discharged or 

otherwise discriminated against in violation of section 105(c) of the Act, he 

is not entitled to the relief sought in his complaint. 

ORDER 

On the basis of the above findings of fact and conclusions of law, the 

complaint and this proceeding are DISMISSED. 

J"'ct/1,'1v2- e .. #18vvck 1r1-t''/(__ 

James A. Broderick 

· · Administrative Law Judge 

Distribution: By certified mail 

Grant L. Foutz, Esq., 409 South Second, P.O. Drawer 38, Gallup, NM 87301 

Lindsay A. Lovejoy, Jr., Esq., Stephenson, Carpenter, Crout & Olmsted, 

Post Office Box 669, Santa Fe, NM 87504-0669 

M. Lea Brown~ield, Esq., United Nuclear Corporation, Post Office Box 2248, 

Santa Fe, NM 87501 

37 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 12, 1983 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. CENT 82-33-M 

A.C. No. 29-00159-05018 

v. Tyrone Mine & Mill 

PHELPS DODGE CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

Marigny A. Lanier, Esq., Office of the 

Solicitor, U. S. Department of Labor, 

Dallas, Texas, for Petitioner, MSHA; 

James G. Speer, Esq. and Stephen W. 

Pogson, Esq., Evans, Kitchel & Jenckes, 

P.C., Phoenix, Arizona, for Respondent. 

Judge Merlin 

This case is a petition for the assessment of a civil 

penalty filed by the Secretary of Labor against Phelps Dodge 

Corporation for an alleged violation of 30 C.F.R. § 55.9-2. 

Section 55.9-2 provides as follows: 

Equipment defects affecting s~fety shall be 

corrected before the equipment is used. 

The subject citation which is dated May 15, 1981 reads 

as follows: 

After talking with Kim Kerseyi Maintenance 

Foreman, ~aye Staley, Driver, Milo Lambert, 

Miners Representative and Dave Kuester, 

Miners Representative, I have reason to 

believe there was a safety defect.affecting 

safety on the #214 Muck Truck involving the 

front suspension in that prior to my arrival 

on the property there had been much controversy 

38 
about the suspension. The drive[r] went so 

far as to ask for a blue card in order to go 

to the doctor if not taken off the truck or 

the truck repaired. On 5/8/81 a telephone 

call was received by the MSHA Office in 

Carlsbad, N.M. to voice their complaint. 

They were advised to contact Milo Lambert or 

Dave Kuester the Miners Representatives. I 

arrived on the property at approximately 1800 

hours on the 13th of May 1981 on other business. 

We returned the following morning .to complete 

the other business and to serve other complaints. 

When we arrived we noted. that the #214 Muck 

Truck was in the truck.shop being repaired. 

The morning of the 15th of May 1981 we served 

the complaint on the #214 truck. We le·arned 

that the ·#214 truck had been put into the 

shop for a routine maintenance service on the 

same morning that we were driving to Silver. City, 

N.M. in that the company was aware that we 

were on the way over, because of a phone call 

to the company made by Sidney R. Kirk, Supervisory 

Inspector MSHA concerning the investigation 

of an accident. 

The inspector who issued the citation testified that a 

miner complained to MSHA that the suspension on the No. 214 

haulage truck was bottoming out and represented a hazard to 

safety (Tr. 10-11). As a result of this complaint the 

inspector was told to visit the mine and check out the truck 

(Tr. 10-11). At the hearing the inspector was confused and 

inconsistent about when he visited the mine and talked to 

the drivers (Tr. 11, 14, 17, 25, 27-28, 33-34, 41-47, 55). 

After reviewing his testimony I find that on or about 

May 15 during the day he visited the repair shop at the mine 

and spoke to the repair shop foreman about the 214 truck · 

(Tr. 27-28, 34, 43). When the inspector arrived the front 

suspension already had been removed and a new suspension had 

been installed (Tr. 14, 73-74). The shop foreman complained 

to the inspector about spending $6,000 to replace a front 

suspension.that was still good but he said that the replacement was being done because it was called for under the 

company's preventive maintenance schedule (Tr. 15-).6, 55-5-8). 

The old suspension was in the back of the shop where the 

inspector could have seen it but he did not (Tr. 191-192., 

194). The inspector admitted that he had no personal 

39 
knowledge of the condition of the removed suspension and 

that he was not familiar with the company's preventive 

maintenance schedule (Tr. 31-33, 48-50). The inspector told 

the operator.'s safety inspector that he would decide whether 

or not to issue a citation after he had spoken to the 

drivers of the 214 truck (Tr. 21-22, 25). 

That evening the inspector spoke to several drivers of 

the 214 truck including Kay Stailey, Pedro Mondragon, 

K. W. Donaldson, Emory Baker, Juan Verdugo, and Ramon Nava 

(Tr. 36-37, 45-46). According to the inspector they told 

him that because of worn out suspensions the truck bottomed 

out, was unstable and control of its steering could not be 

maintained (Tr. 17-18, 36). They also advised the truck 

rode rough and Ms. Stailey who told the inspector she drove 

the truck on May &, said she had hurt her back because of 

the bad suspension (Tr. 46-48). Based upon what the drivers 

told him the inspector decided to issue a citation, wrote it 

up 2 days later and then mailed it to the operator (Tr. 20-

22, 5.4). However, the inspector erroneously put down the 

issuance date as the day he had spoken to the foreman and 

the drivers (MSHA Exh. No. 1). 

·Five of the drivers whp had operated the 214 truck 

testified at the hearing. The first and most important was 

Ms. Stailey. It was she who complained to MSHA that oh May 8 

when driving the truck she injured her back due to the bad 

suspension (Tr. 47-48, 85). She repeated these complaints 

at the hearing, testifying that ·on May 8 the· truck drove 

like a jackhamrrier due to bad suspension (Tr. 85-86, 92). 

She also contended that the cab and back of the truck were 

loose (Tr •. 86, 93). She said she had complained· three times 

that night and finally because her back hurt she asked for a 

blue card which would have enabled.her to go to the hospital 

(Tr. 87-88). On cross examination Ms. Stailey agreed that 

according to established procedures the drivers fill out a 

checklist for each truck they drive (Tr .• 95). If more than 

one truck per shift is driven by a driver, the driver must 

fill out a checklist for each truck (Tr. 128). The checklist 

sets forth several items including suspension, with respect 

to which the driver is supposed to report any problems or 

deficiencies (Tr. 96, Optr's. Exh. Nos. 2-8). There is also 

a place on the form for driver comments. The checklist 

which Ms. Stailey filled out for May 8 indicates she drove 

the 219 truck, ·not the 214 (Optr's. Exh. No. 2). Ms. Stailey 

contended that she made her 9's like 4's but the operator 

produced her checklists for the period April 1 through 

May 16 (Tr. 103-104, Optr's. Exh. Nos. 2 and 3). It is clear 

40 
from an examination of these lists that Ms. Stailey does not 

make her 9's like 4's and at the hearing MSHA did not produce 

any evidence or even argue in support of Ms. Stailey's 

contention. I find that on May 8 Ms. Stailey drove the 219 

truck. I also find in accordance with the checklist that 

the last day she drove the 214 truck was April 6 (Optr's. 

Exh. Nos. 2 and 3). Ms. Stailey admitted that the April 6 

checklist did not indicate any problem with the suspension 

but she said she orally told her foreman the suspension was 

bad (Tr. 109). 

In addition, on cross examination Ms. Stailey admitted 

that on May 4 she had an accident driving the 217 truck when 

she ran into a berm (Tr. 109). She also admitted that on 

May 5 she received a written warning from the operator for 

her failure to report the accident and for damage to the 217 

truck from the accident (Tr. 112). At first she denied 

there was any damage, but subsequent.ly she acknowledged 

there had been some to the truck's ladder (Tr. 110, 118, 121). 

Finally, when asked whether ~he had visited a d6ctor on May 6 

on her _own volition, Ms. Stailey first stated it was for 

allergies but when confronted with the medical report of 

that visit agreed it was for back pain (Tr. 112-114). 

Based upon the foregoing I do not find Ms. Stailey a 

credible witness in any respect. I conclude she last drove 

the 214 truck more than a month before she complained to 

MSHA. Moreover, she complained to MSHA only a few days 

after she had an accident with another truck, received a 

warning from the operator and visited a doctor for back 

pain. These circumstances demonstrate that her assertions 

regarding the alleged lack of safety on the 214 truck due to 

bad suspension cannot be accepted. 

As already noted, four other drivers of the 214 truck 

testified. Mr. Mondragon who according to the checklist 

drove that truck only on April 5 and April 25, stated it 

rode rough and fishtailed although he did not indicate this 

on his checklist (Tr. 125-126, 131, Optr's.Exh. No. 4). He 

said he orally told the dispatcher in the tower about the 

rough riding and fishtailing and that the dispatcher was 

supposed to tell the foreman (Tr. 132). However, he admitted 

that management "chewed out" drivers who did not cpmplete 

accurate lists (Tr. 134). 

41 
Similarly, Mr. Baker testified that when he drove the 

214 truck, it rode rough but his checklist for May 3, the 

only date he drove it after April 1, did not contain anything 

about the suspension (Tr. 141, Optr's. Exh. No. 5). He said 

it must have slipped his mind but alleged that he orally 

told the dispatcher about the suspension (Tr. 147-148). I 

conclude the weight to be accorded the allegations of these 

two witnesses regarding the suspension on the 214 truck 

is greatly diminished because they did not put anything on 

their checklist although they knew this was required. 

Moreover, these two drivers drove the 214 truck on few 

occasions. 

A third driver, Mr. Verdugo, did indicate a suspension 

problem on his checklist for May 2 when he drove the 214 

truck (Optr's. Exh. No. 7). However, he acknowledged he did 

not drive the 214 truck very often since his assigned truck 

was the 216 (Tr. 174). Even more importantly, Mr. Verdugo's 

complaints regarding the rough riding of the 214 truck must 

be viewed in light of the fact that he had a severe back 

problem, was operated on for a ruptured disc on July 28, 

1981 and was out of work for this condition from June 17, 

1981 to October 7, 1981 and from November 7, 1981 to 

January 4, 1982 (Tr. 183-184). Finally, Mr. Verdugo continued to complain about rough riding on the 214 truck after 

the suspension had been replaced (Tr. 180-182). In light of 

the foregoing circumstances, I do not find Mr .. verdugo's 

testimony persuasive regarding alleged safety hazards and 

the nature of the ride on the 214 truck. 

The fourth driver who testified was Mr. Donaldson. He 

was assigned to the 220 truck but because he traded shifts 

with a driver named Dave Brown, he drove the 214 truck 

around the time Ms. Stailey made her complaint (Tr. 150-

151). Mr. Donaldson said that the 214 truck rode rough 

compared to the other trucks but the only checklist he 

completed for the 214 truck which mentioned the suspension 

was dated May 12, 4 days after Ms. Stailey complained 

(Tr. 151-152, Optr's. Exh. No. 6). Mr. Donaldson admitted 

he did not always £ill out the lists accurately (Tr. 157). 

He stated that he did not know for sure whether he had noted 

the suspension as a problem on May 12 because Ms. Stailey 

had spoken to him about her complaint, but he readily 

admitted he wished to help her (Tr. 167, 171-172). Even 

more importantly, Mr. Donaldson admitted that he did not 

consider the 214 truck unsafe for him when he was driving it 

(Tr. 171). I find Mr. Donaldson's opinion regarding the 

safety of the 214 truck which was given with candor to be 

persuasive and I accept it. 

42 
The operator submitted copies of all checklists for the 

214 truck from April 1 to May 13 (Optr's. Exh. Nos. 2-8). 

Many items needing repair were noted on these lists but the 

front suspension was identified as a problem only three 

times. Even rough riding, without specifying the cause, was 

noted only eight times (Optr's. Exh. Nos. 2-8). Also the 

drivers who testified did not use the 214 very often. The 

checklists for the 214 truck reveal other drivers used that 

vehicle with greater frequency than those who testified. 

The operator's repair shop foreman, Mr. Kersey, testified that haulage trucks are given priority in maintenance 

and repairs because they are essential to production (Tr. 

66-67). Suspensions are changed on haulage trucks every 

9,000 to 10,000 hours (Tr. 70, 201). On April 17 a work 

order was issued to change the suspensions on the 214 

because it was the truck whose suspensions had the most 

hours (Tr. 68-70). On April 21 and May 2 the operator 

received rebuilt suspensions which were installed on the 214 

truck on May 13 (Tr. 78, 83). The foreman looked at the 

suspensions before and after they were changed and he saw no 

defects (Tr. 211). As already noted, the inspector did not 

see them. In addition, x-rays of the suspensions taken off 

the 214 truck showed no cracks (Tr. 204). The foreman 

stated that when the suspensions were removed, "donuts", 

which are rubber cushions in the suspensions and which would 

have disintegrated if there had been a bottoming out of the 

truck, were found to be intact (Tr. 198, 204-205, 216). The 

foreman further testified that the suspensions were being 

replaced pursuant to the company's maintenance program and 

he said that up to the time of the inspector's visit he did 

not know of any miner compl.aint to· MSHA about the 214 truck 

(Tr. 69-70, 203, 208-209). I find the foreman credible and 

I accept his testimony. I conclude therefore, that the 

suspensions were being replaced pursuant to the regular 

preventive maintenance program and I reject any suggestion 

they were changed in order to avoid issuance of a citation 

because a complaint had been made to MSHA. I further conclude 

that the suspensions were free from defect and that there 

was no bottoming out on the 214 truck. 

Mr. Chandler, the parts and service consultant for the 

manufacturer of the 214 truck, testified that he had driven 

every truck Phelps Dodge had and that trucks like the 214 

tend to drive bumpy (Tr. 230). Both Mr. Kersey and 

Mr. Chandler listed a number of factors which would cause a 

rough riding truck including speed and road conditions 

(Tr. 209, 230-231). Finally, the 214 truck as described by 

43 
Mr. Kersey and as shown by photographic evidence is a 

massive off-the-highway vehicle designed for hauling heavy 

loads over rough terrain (Tr. 194-196). Its enormous 

dimensions are apparent when it is pictured next to an 

ordinary sized pick-up truck (Optr's. Exh. No. 10). 

Based upon all the evidence I conclude that there were 

no defects in the suspension of the 214 which affected 

safety. For reasons already noted, the principal complainant 

upon whom MSHA relied is not credible. But to the extent 

that some of the other drivers believe the 214 was unsafe 

_because of the suspension, I find more persuasive the contrary evidence of the operator which demonstrates that there 

was nothing wrong with the suspensions and that they were 

being replaced pursuant to routine maintenance procedures. 

I already noted the opinion of one of the drivers, 

Mr. Donaldson, that the 214 truck was not unsafe but only 

rough riding and I rely also upon the infrequency with which 

the checklist for the 214 identified suspension as a problem. 

I recognize that under the Act miners are strongly 

encouraged to participate in the preservation and maintenance 

of health and safety in the mines. They are after all, the 

ones whose lives are on the line. But the positions miners 

take and the complaints they make must be supportable and 

prevail over contrary evidence produced by operators accused 

of violations. In this case MSHA failed to prove a violation. 

The great weight of probative evidence favors the operator. 

ORDER 

Accordingly, it is ORDERED that Citation No. 173586 

be Vacated and that the petition for the assessment of civil 

penalty be DISMISSED. 

Law Judge 

44 
Distribution: Certified Mail. 

Marigny A. Lanier, Esq., Office of the Solicitor, U. S. 

Department of Labor, Suite 501, 555 Griffin Square, 

Dallas, TX 75202 

James G. Speer, Esq. and Stephen W. Pogson, Esq., Evans, 

Kitchel & Jenckes, P.C., 363 North First Avenue, 

Phoenix, AZ 85003 

45 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11 /12 JAN 131983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U. S. STEEL MINING CO., INC., 

Respondent 

U. S. STEEL MINING CO., INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Civil Penalty Proceedings 

Docket No. PENN 82-177 

A.O. No. 36-00970-03 120 

Maple Creek No. 1 Mine 

Docket No. PENN 82-220 

A.O. No. 36-03425-03104 

Maple Creek No. 2 Mine 

Contest of Citations 

Docket ·No. PENN 82-73-R 

Citation No. 9901282; 1/20/82 

Maple Creek No. 1 Mine 

Docket No. PENN 82-76-R 

Citation No. 9901285; 1/22/82 

Maple Creek No. 2 Mine 

DECISION AND ORDER 

These consolidated review-penalty cases are before me on 

the parties' waiver of hearing and cross motions for summary 

decision on stipulated facts. The dispute centers on the 

proper interpretation of the facts and applicable law. The 

core issues are: 

..1.. Whe .. :her a sample o '.: respirable dust taken on 

a single shift by a duly certified representative 

of the Secretary (a coal mine inspector) is in 

acccrd with the procedure prescribed by the statute. 

46 
2. Whether a sample of respirable dust taken on 

a single shift was, as a matter of scientific 

fact, sufficient to determine the average concentration of respirable quartz present in 

the atmosphere of the mechanized mining units 

sampled. 

3. Whether the violations charged "could have 

contributed to a significant and substantial" 

mine health hazard. 

Findings and Conclusions 

The fundamental requirement of the respirable dust standard 

is that the average concentration be continuously ~aintained at 

or below 2 milligrams per cubic meter of air (2mg/m3). 

Section 202(a), 30 C.F.R. 70.100. The two milligram standard 

must be lowered, however, whenever the total respirable dust 

mass in the mine atmosphere contains more than. 5% quartz. 

Section 205, 30 C.F.R. 70.101. Consequently, when sections 

202(a) and 205 are read together the statutory respirabl~ 

coal mine dust standard is 2 milligrams (not to exceed 5% 

quartz) per cubic meter of air. 

When the presence of an excessive concentration of quartz 

is detected, the operator is thereafter required to maintain 

the respirable dust mass below an average concentration of 

2 milligrams of air cubed. The applicable standard is determined 

by dividing the percentage of quartz into the number 10. 

30 C.F.R. 70.101. The formula for determining the applicable 

respirable dust standard when quartz is present was prescribed 

by the Secretary of Health Education and Welfare, now the 

Secretary of Health and Human Services. It was derived from 

47 
the Threshold Limit Values (TLV) first published for free 

silica by the American Conference of Governmental Industrial 

Hygienists in 1968. 

In these cases, the percent of quartz present on the 

mechanized mining units in question was 11% .. Therefore, 

the average concentration of respirable dust in the mine 

atmosphere associated with the t~o units had to be thereafter 

maintained at 0.9 milligrams of respirable dust· per cubic 

meter of air (10/11 equals 0.9 mg/m3). 

I 

Samples for determining the percent of concentration of 

quartz in the respirable dust mass present in the mine atmosphere 

are taken by the Secretary of Labor through duly certified coal 

mine inspectors. Such single shift samples are not used to 

/ ..... .,,,.., 

determine compliance with the mine dust standard in effect 

at the time the sample is taken. The percent of quartz is 

merely used to set the standard for future sampling. But 

if the percent of quartz in the sample analyzed is more than 

S the Secretary will give the operator notice of a lowered 

standard which will thereafter be used to establish compliance. 

or noncompliance on the basis of averaging multi-shift samples 

taken by the operator during his next bi-monthly samplin~ period. 

30 C.F.R. 70.201, 20·7. 

The operator says -this procedure is contrary to the Act 

which, it contends, requires all respirable dust samples be 

taken by the operator. MSHA, the operator claims can only 

/ 

48 
take dust samples for the purpose of checking "on the accuracy 

of the operator's sampling program". For this reason, the 

operator asserts the respirable·dust samples taken by certified 

persons who are not employed by the operator are not samples 

that can be used to lower the 2 m.illigram standard. 

I find the contention without merit. 

Section 202(g) specifically authorizes the Secretary of 

Labor or his delegate to "cause to be made such frequent spot 

inspections as he deems appropriate of the active workings of 

coal mines for the purpose of obtaining compliance with {the 

respirable dust standards? of {Title I!?. Legislative History, 

Coal Act, 1124 (1970). This authority is complemented by that 

found in section 104(f) which sanctions use of "samples taken 

during an inspection by an authorized representative of the 

Secretary" to determine whether the "applicable limit -on···the 

concentration of respirable dust required to be maintained 

under this Act is exceeded'', and, if so, for issuanc~ of a 

"ci ta ti on fixing a reasonable time for aba temenL" 

The broad underlying authority, of course, is section 

103(a)(l) and (4) which authorize inspections, and therefore 

sampling, to obtain "information relating to health conditions 

and the causes of diseases" and to determine "whether there 

is compliance with the mandatory health standards ... or 

other requirements of this Act". The cumulative import of 

this authority provides compelling support for the view that 

Congress intended the Secretary have power, independent of 

49 
the operate~, to police compliance with the quartz limi--

tation mandated by section 205. 1/ 

II 

Under section 205 of the Coal Act the Secretaries of 

Interior and of Health, Education and Welfare were delgated 

authority to develop and promulgate a formula that would permit 

a reduction in the applicable respirable dust standard whenever 

the quartz content of respirable dust in the atmosphere 

exceeded 5 percent. '!:_/ The formula, which issued in March 1971, 

30 C.F.R. 70.101, required that whenever_ the "concentration of 

respirable dust in the mine atmosphere" containe.d "more than 

5 percent quartz" the applicable respirable dust standard 

for-that working place should be reduced by an amount computed 

"by dividing the percent of quartz into the number 10". 3/ 

1/ The operator has withdrawn its improvident assertion that as 

a "practical matter" the trial judge should take notice of the 

fact that the integrity of the entire sampling program may be 

jeopardized by allowing federal coal mine inspectors to take 

samples. Counsel for the operator admit they have no evidence 

to support such inflammatory assertions. 

2/ Section 205 constitutes a legislativ,~ recognition of the fact 

that epidemiological studies show that the different components 

of inhaled dust such as quartz and coal dust as well as its total 

atmospheric concentration or density are factors which affect the 

formation of fibrotic lung tissue and the development of 

pulmonary massive fibrosis. 

3/ Quartz (crystalline silicon dioxide) is classified as a 

ribrogenic dust that causes scar tissue (fibrosis) to be formed 

in the lungs when inhaled in excessive amounts. In 1968, the 

American Conference of Governmental I~dustrial Hygienists established a Threshold Limit Value (TLV) rif 100 micrograms (.1 milligrams) per cubic meter of air over an eight hour period. This 

(footnote 3 continued on page 6) 

50 
For many years the threshold limits for dust containing 

quartz have been based on the concept that the magnitude of 

the toxicity of the dust is proportional to the concentration 

of quartz in the dust. Based on studies done in 1929 and 1935, 

it was determine~ the toxicity limit (TLV) for quartz dust 

was 0.1 milligrams per cubic meter of air.. The formula 

developed by the National Institute for Occupational Safety and 

Health (NIOSH) for applying this limit was: TLV equals 10 

divided by the percent of respirab1e quartz found in a sample 

of respirable dust. 4/ 

Thus, if the quartz component of the average concentration 

of respirable. dust during a single shift is 5 percent of a 

2 milligram mass, the concentration of quartz is 100 micrograms 

(.1 milligrams) per cubic meter of air and no reduction in the 

-· -- -·· total concentration of respirable dust (2mg/m3) is mandated. 

(10/5 equals 2). On the other hand, if the respirable mass 

standard was 3 milligrams of air cubed, the 5 percent limit would 

still require it be lowered to 2 (10/5 equals 2) if the 

quartz content exceeded 5 percent. 

is the airborne concentration of quartz to which it is believed 

most workers, including miners, may be repeatedly .exposed day 

after day without adverse effect. NIOSH has recommended that 

the concentration level be reduced to SO micrograms (.05 milligrams) but thus far MSHA has declined to adopt this as the basis 

for its' formula for reducing the applicable respi rable dust 

standard. 45 F.R. 23995 (1980). 

4/ Documentation of the Threshold Limit Values for Airborne 

Contaminants, ACGIH, 1981 Supplement 364-365. This report 

notes that because the "percent quartz in respirable dust is 

often quite different from the percentage in ... total airborne 

dust, ... the percent quartz for use in the respirable-mass TLV 

formula must be determined in a sample of respirable dust. Id. 

51 
In the instant case, it was found that the quartz 

component had increased to a concentration level of 11 percent. 

Consequently, the miners were being exposed to approximaiely 

190 micrograms of concentrated quartz dust which was almost 

twice the permis~ible dosage-exposure for each shift. The 

record shows this exposure which began some time in September 1981 

continued until abated in January 1982. 

The quartz standard issued in March 1971 and was reissued 

without substantive change in April 1980. 45 F.R. 23995. 5/ 

From the inception of the enforcement program to February 1981, 

the procedure for evaluation of respirable quartz concentrations 

was known as the Standard Method A7, or KBr (Potassium bromide) 

method. To perform the necessary chemical analysis and 

infrared spectrophotography a sample of respirable dust 

weighing 1 to 4 milligrams was !'equired. Because samples· 

collected during a mine health inspection usually contained 

less than this amount it was often necessary to combine from 

10 to 30 samples ta make a composite sample of 1 to 4 milligrams. 

The composite sample was then ash~d, combined with potassium 

promide, pelletized and analyzed for quartz content by making 

an infrared spectrophotograph of the absorbance traces for 

crystalline silicon dioxide. 

5/ Apparently through inadvertance the phrase "concentration 

of" was deleted before the words "respirable dust" in the 

rule as reissued. Since no notice was given of any proposal 

to change the statutory definition found in section 202(e), 

it seems obvious the Secretaries did not intend to change 

the "average concentration" standard. 

52 
Collecting and making composite samples was not only 

time consuming but also severely limited the number of mines 

on w~ich quartz determination could be made. For example, 

in 1980 approximately 59,000 samples were collected and 

submitted for quartz analysis. From these, only 1,500 quartz 

analyses could be performed. 

To increase the number of samples available for testing, 

MSHA modified its analytical method in February 1981. The 

new method permits a quartz content determination to 'be made 

on a single sample containing as little as 0.5 milligrams 

of respirable mine dust. It was first developed by the 

National Institute of Occupational Safety and Health (NIOSH) 

in 1977. 

Under· the new method, the sample is ashed in a low-tempera-

-

ture, radio-frequency (RF) asher, the ashed residue is combined 

with potassium bromide, pelletized and analyzed for quartz using 

infrared spectrophotometry. Use of the RF asher affords the 

advantage of being able to make a quartz analysis of a sample 

containing as little as 0.5 milligrams of respirable mine dust. 

The new method, which is capable of detecting about one percent 

quartz in an ashed sample weighing 0.5 milligrams is known as 

the Single Sample, Low Temperature Ash (LTA) method of 

quantifying the quartz in a single valid sample of respirable 

mine dust. Mine Safety and Health Administration's Procedure 

for Determining Quartz Content of Respirable Coal' Mine Dust 

(Unpublished 1982). 

53 
Equivalency between the "old" and the "new" methods was 

demonstrated by analyzing replicate samples of respirable 

dust using both methods and comparing the analytical results. 

This showed that quartz determinations with the "new" method 

were within app~oximately 1 percent of the determinations 

obtained with the "old" method (i.e., for a determination of 

8 percent with the "old" method, the.determination with the 

"new" method would be 7, 8 or 9 percent). In addi t.ion, a number 

of single samples were analyzed to quantify the intersample 

variability of the "new" method. This showed the coefficient 

of variability was 17 percent as compared to the "old" method 

which was 10.8 percent. The difference in variability was 

of no practical significance since the results of quartz 

determinations are truncated and reported as whole percentages, 

that is, an analysis that results in a determination of 5.9 

percent quartz is reported as 5 percent. 

The variability of disparate samples is admittidly based 

on a limited amount of data. Samples to determine the day-to-day 

or multi-shift variability were collected from five mines and 

17 sections. From a quantitative standpoint, 80 percent of 

the time the average standard deviation about the mean, 

determined from at least five samples, was 2 percent. For single 

shift samples, i.e., those collected from the same face on 

the same day, the variability was within a range of plus or 

minus 1 percent. The evidence shows, and the operator does not 

dispute, that the variability between and among the analyses 

54 
of single and multi-shift samples of respirable mine dust 

for quartz c9ntent is relatively low. Ibid. 

The operator claims all thi~ is irrelevant because, 

the single sample method fails to comply with the requirement 

that the quartz determination be based on averaging five 

samples of respirable dust. 30 C.F.R. 207. 

The dispositive issue, therefore, is whether the limit 

on respirable quartz dust can be enforced on the basis of a 

single shift gravimetric sample of the atmosphere of the 

mechanized mining units cited or must be a composite of the 

five multi-shift samples taken to determine compliance with 

the total respirable mine dust concentration. 

Support for the operator's position is found, it is claimed, 

in MSHA's determination that "a single-shift respirable dust 

sample should not be relied upon for compliance determinations 

when the respirable dust concentration being measured" is near 

2 milligrams. 45 F.R. 23997 (1980). Pointing out that each 

of the samples in question was less than 2 milligrams, the 

operator argues the sampling procedure followed to determine 

quartz content was not a valid statistical technique because 

it violated the long-established re~uirement for multiple 

sample averaging. 30 C.F.R. 207. 

The Secretary's answer is that the statute does not 

mandate multi··sample averaging to determine the concentration 

of respirable q11artz dust. Section 202(f)(2). MSHA further 

claims that all the regulation requires is that enforcement 

55 
of a loweied standard be based on operator samples collected 

on five consecutive production shifts or five production shifts 

worked on consecutive days. 30 C.F.R. 207. Neither Congress, 

nor the Secretary, it is argued ever intended the pre-compliance 

quartz sample, i.e., the sample used to establish the lowered 

dust standard, be derived from a statistically valid sample 

of the average concentration of the total airborne respirable 

dust to which the miners were exposed. The Secretary carries 

his burden, it is claimed, if he shows persuasively that, 

after applying valid statistical techniques, a single shift 

sample of respirable mine dust pictures, with scientific 

accuracy, the concentration of respirable quartz dust in 

the atmosphere during the shift on which the sample was take~. 

Since a single shift sample of each of the continuous 

miner operators (high risk occupations) cited skowed ·a qy-artz 

concentration of 11 percent, the Secretary claims he had a nondiscretionary duty to lower the total respirable dust standard 

to .9 milligrams of air cubed and thereafter to enforce 

that standard on the basis of multi-sample averaged "compliance" 

samples. §_/ 

6/ While the Secretary claims s·ingle shift samples are never 

used to find a violation, one of the "Enforcement Examples" 

given in the directive to inspectors states that where an 

anaiysis of a single sample from an area subject to a lowered 

standard has generated an even higher concentration or 

percentage of quartz, "the inspector should issue a citation 

upon receipt of the quartz analysis because there was a 

violation at the time the sample was collected". Coal Mine 

Safety & Health Memorandum No. 81-183-H, p. 8. 

56 
Resolution of the parties' dispute requires an analysis 

and interpretation of sections 202(e), 202(f), and 205 of the 

Mine Safety Law. 

Section 205 provides: 

In coal mining operations where the concentration 

of respirable dust in the mine atmosphere of any 

working place contains more than S percent quartz, 

the Secretary of Health, Education and Welfare shall 

prescribe an appropriate formula for determining the 

applicable respirable dust standard under this title 

for such working place and the Secretary /of Labor? 

shall apply such formula in carrying out nis duties 

under this title. 

Section 202(e) provides: 

References to concentrations of respirable dust in 

this title mean the average concentration of respirable 

dust measured with a device approved by the Secretary 

and the Secretary of Health, Education and Welfare. 

Section 202(f) provides: 

For the purpose o:f this title, the term "average _.coμcentra tion" means a determination which accurately 

represents the atmospheric conditions with regard to 

respirable dust to which each miner in the active 

workings of a mine is exposed (1) as measured during 

the 18 month period following the date of enactment 

of this Act, over a number of continuous production 

shifts to be determined by the /Secretaries/, and (2) 

as measured thereafter, over a single shift only, unless 

/the Secretaries/ find, in accordance with the provisions of sect1on 101 of this Act, that such single 

shift measurements will not, after applying valid 

statistical techniques, to such measurement, accurately 

represent such atmospheric conditions during such 

shift. 

The legislative history of section 202(f) shows there 

was a sharp disagreement between the Se·nate and House over 

the most reliable method for sampling atmospheric conditions 

to determine the "average concentration" of respirable dust. 
The Senate bill mandated single shift sampling and prohibited 

the averaging of dust measurements over several shifts. As 

the operator points out, however, Congressmen representing 

the operators' interests succeeded in persuading the House 

to adopt an amendment that would have required multi-shift 

sampling to determine the "average concentration". The 

matter was finally resolved in the Conference Committee. Its 

report states: 

The substitute adopted by the conference requires 

the operator to maintain continuously the average 

concentration of respirable dust in the mine 

atmosphere during each shift to which each miner 

is exposed at or below the established maximum 

standard or the permitted maximum standard. It 

also provides that the term "average concentration" 

means that for a maximum period of 18 months after 

enactment, measurements of a minimum number of 

the same production shifts in consecutive order 

are authorized to obtain a statistically valid 

sample. At the end of this 18-month period, it 

requires that the measurements be over one/production shift only, unless the Secretary and the 

Secretary of Health, Education and Welfare find, 

in accordance with the standard setting provisions 

of section 101, that single-shift measurements 

will not accurately represent the atmosph~ric 

conditions during the measured shift to which the 

miner is continuously exposed. H. Rpt. 91-761, 

9lst Cong., 1st Sess.; 75; Legislative History 

Coal Act 1037 (1970). 

From this-, it is clear that the legislativi preference is 

for single shift sampling and that multi-shift averaging 

is the exception, not the rule. The operator, in fact, 

concedes that "the Secretaries have never expressly determined 

that a single shift sample will not accurately represent 

[the average concentration of respirable quartz dust7 after 

58 
applying valid statistical techniques''. All the Secretaries 

have determi~ed is that application of valid statistical 

techniques mandates continued use of the exceptional method, 

i.e., multi-sample averaging as the basis for the issuance 

of citations to enforce a lowered standard. 45 F.R. 23997. 

I find that as a matter of law, section 202(f) of the 

Act plainly authorizes use of single shift samples as the 

basis for determining the concentration of quartz and that 

the best available scientific evidence supports use· of such 

a procedure. 

The operator has chosen not to challenge the evidence 

adduced by the Secretary to show that,. after applying valid 

statistical techniques, a single shift sample of respirable 

mine dust can be analyzed by a method which accurately measures 

the concentration of r~spirable quartz dust in the at~6sphere 

during that shift. 7/ Instead it has generally cited studies 

relating to the validity of gravimetric measurements of 

respirable coal mine dust masses. 

There is, of course, no dispute about the fact that 

personal gravimetric samplers were used to collect the respirable· 

mine dust in question. Furthermore, the relevant literature 

shows that true dust concentrations in coal mines vary from 

7/ The operator's claim that the standard as applied arbitrarily 

reduces the total dust level no matter how insignificant the 

amount of quartz present is demonstrably incorrect. (Exh. 2). 

The operator makes no claim that exposure to more than 100 

micrograms of respirable quartz dust for eight hours a day, dayafter-day, is a biologically benign atmospheric condition. The 

purpose of section 205 is to insure that concentrations of 

quartz in the workplace atmosrlieTe will be maintained at 

or below 100 micrograms per cubic meter of air. 

59 
shift to shift with a coefficient of variation between 30 

and 70 percent. Indeed, it is not unusual to find that the 

dust concentration in the atmosphere of a continuous miner 

operator has a standard deviation of 70 percent. IC 8753, 

Respirable Dust Measurement 13-14 (1977). 

But, says the Secretary, all this is irrelevant because 

after applying valid statistical techniques to the infrared 

spectroscopy method of analyzing single shift samples for 

quartz it was found that the variability between and among 

single and multiple samples was relatively low, plus or minus 

1 or 2 percent. Indeed, this conclusion seems to be 

corroborated by a study done by the operator's own industrial 

hygienists in 1970 or 1971. This study found it was possible 

using an x-ray diffraction technique to "estimate the quartz 

and calcite on individual filters where the dust loading 

was 0.20 mg." The same report recommended that infrared 

techniques being used in England and Germany be carefully 

studied to "determine whether this analytical procedure can 

be applied to individual respirable dust samples". MSHA 

claims, and I find its evidence supports the conclusion, 

that by 1981 the infrared technique had been perfected to 

the point where it could be applied to samples with as little 

as 0.5 milligrams of dust with ~he reproductibility error 

(coefficient of variation) between single and multiple samples 

so small as ·to be negligible. 

60 
From the standpoint of scientific reliability, it makes 

no difference whether the quartz analysis is made from a 

composite of the operator's five samples or an inspector's 

single sample because only 0.5 milligrams of dust is analyzed 

in either instance to determine the quartz content. As a 

practical matter, of course, it makes quite a difference 

because of the time and effort required to work with 

five rather than one sample. ~/ 

The percent quartz content, as previously indicated, is 

not used as a standard but only as a factor in the formula 

for reducing the total respirable dust mass. The object is 

to keep the quartz exposure within the permissible limit. 

The fact that a 7% quartz content of a .7 milligram sample 

might be used to reduce the 2 milligram standard to 1.4 

milligrams does not mean that a 49 microgram standard for 

quartz is being enforced. A simple calculation shows the 

quartz content of the .7 mg sample would have to reach 14% 

before. it would equal 100 micrograms (.7 mg equals 700 ug X 

14% equals 98 ug). The formula, on the other hand, is designed 

to ensure that the quartz content of the reduced standard 

7 (mass) does not exceed 100 micrograms or 0.1 mg quartz/m·' 

(1.4 mg/m3 X 7% equals 0.1 mg/m3 quartz). Obviously, if 

the operator is achieving a .7 mg/m3 concentration of respirable 

dust he will have no difficulty in complying with the lowered 

1.4 mg standard. 

8/ It is estimated that the use of the single sample procedure 

will result in "an annual decrease of about 2 inspector years 

in sampling''. CHS&H Memo 81-lb3 tt. 

61 
Accordingly, I conclude that the Secretary has carried 

his burden of showing that the single shift samples of respirable 

mine dust in question provided scientifically valid samples 

(representative samples) of the average concentration of quartz 

dust in the relevant atmosphere during the shifts in question. 

The operator's contest of the validity of the pre-compliance 

samples, i.e., those used-to lower the total dust standard 

is, therefore, denied. 

III 

The operator claims the violations in question were not 

"significant and substantial" because there is no probative 

evidence that exposure of miners to free silica (quartz dust) 

generated "naturally in mining" is a significant health hazard. 

The Secretary responded with a report and supporting documentation 

from the National Institute for Occupational Safety and rrealth 

(NIOSH). This report concluded that an "intermittant or 

continuous" exposure to more than 100 micrograms per cubic 

meter of respirable quartz dust, regardless of the size of 

the total respirable dust mass, "const.i tutes a serious and 

substantial hazard to the health of miners." (Exhibit 3). 9/ 

9/ As the Goldberg affidavit and the NIOSH report point out, 

the operator has failed to understand that the threshold 

limit of 100 micrograms per cubic meter of air for quartz 

is not a standard but the resultant of the formula adopted 

to reduce the 2 milligram standard when the free silica content 

of an analyzed sample exceeds 5 percent. The 100 microgram 

limit is a constant that does not vary with the size of the 

sample analyzed and is used solely as a regulator of the 

permissible respirable dust mass of 2 milligrams. The purpose 

is to insure that the concentration of respirable quartz 

in the atmosphere is maintained at or below 100 micrograms. 

(footnote 9 continued on page 18) • 

62 
Based Qn the expert opinion expressed in the NIOSH report 

and the accompanying medical literature, the Secretary 

contends that exposure to high levels of silica dust (100 

plus micrograms) in the presence of coal dust rb3Ults in a 

synergistic effect that exacerabates the health risk involved 

in exposure to respirable mine dust. The Secretary argues 

Congress intended a finding of "significant and substantial" 

be made whenever an "incipient" health hazard can, on the basis 

of the best available evidence, be said to pose a significant 

risk of material health impairment over the long run. Finally, 

it is claimed that a finding of "significant and substantial" 

is warran.ted wherever the fraction of free silica in the mine 

For example, 1£ a single analyzed sample weighs .5 milligrams 

and the free silica content is 6 percent, the 2 milligram 

standard will be rerluced to 1.6 (10/6 equals 1.6 mg). 

Thereafter compliance is measured against the reduced-~e~pirable 

dust standard of 1.6 mg, not the threshold limit of 100 

micrograms for quartz. The fact that the quartz content of 

the sample analyzed weighed only 25 micrograms (.5 mg equals 

500 ug x 5% equals 25 ug) is irrelevant and does not mean 

that a 25 ug "standard" is being enforced when the limit is 

100 ug. It simply means that since the compliance or enforcement 

standard is 1.6 mg the actual amount of quartz in the environment may regress to 100 micrograms or 20 percent of the 

total mass (.5 mg equals 500 ug x 20% equals 100 ug) before 

the reduced standard {1.6 mg) would be violated. In the 

cases at hand, it appears the analyzed samples were 1.7 

milligrams and contained 11 percent quartz. This means the 

analyzed sample had 190 micrograms of quartz ((.11) (1.7)) equals 

0.19 mg per meter cubed or 190 ug per meter cubea) .. The 

enforcement or compliance samples averaged 1.3 mg and 1 mg 

respectively. This means that in the case of the 1.3 mg 

sample the quartz content may have been approximately 15 

percent (1.3 mg/.19 mg equals 0.146%) and in the case of the 

1 mg sample approximately 19 percent (1 mg/.19 equals 19%). 

63 

.id 
atmosphere exceeds 5 percent of the total respirable dust 

mass ·because such a condition can, standing alone, contribute 

to a serious health hazard, namely silicosis. 

As noted, the NIOSH report found that "intermittant 

or continuous"· exposure to any concentration of quartz dust 

in excess of theestablished hygientically safe level of 

100 micrograms per meter of air cubed and more particularly 

a concentration of 11 percent (190 micrograms) in a respirable 

dust mass of 1.7 milligrams ''constitutes a serious and substantial 

hazard to the health of a worker". _!_Q_/ (Exhibit 3). The 

operator offered no fact-specific rebuttal to this evidence. 

Thus, the matter is before me on the operator's claim that 

the Secretary's evidence is, as a matter of law, insufficient 

to establish the violations charged were "of such nature as 

could have significantly and· substantially contribute-cl tcr the 

cause and effect" of a mine health hazard . .!...!/ Section 104(e). 

lO/ 1. 7 milligrams was apparently the weight ·of the single 

samples analyzed for quartz (11% x 1.7 mg equals .19 mg or 

190 ug). Inasmuch as the compliance samples averaged 1.3 

and 1 milliira~s, respectively, it appears that the concentrations of q~artz involved in the violations charged ranged from 

190 to 200 micrograms. This was substantially in excess of the 

permissible exposure limit value of 100 micrograms. 

11/ Although the matters are before me on the parties' cross 

motions .for summary decision, each has the burden of showing 

the indisputability of the facts which warrant judgment in 

his favor. Moore's Federal Practice Par. 56.13. The Secretary's 

evidence clearly establishes that the 100 plus microgram limit 

is indisputably accepted by the scientific and medical community 

as the safe limit for exposure to free silica. The operator 

does not challenge this but claims such an exposure does not 

constitute a."significant and substantial" health hazard 

(footnote 11 continued on page 20) 
The NIOSH report is probative of the realtionship 

between quartz exposure and the severity of the resultant 

health hazard. Well-reasoned expert testimony and opinion 

based on what is known and uncontradicted may in and of itself 

be substantial evidence when first-hand evidence on the 

question is unavailable. Industrial Union v. American Petroleum 

Institute, 448 U.S. 607, 707 (1980), Dissenting Opinion; 

Richardson v. Parales, 402 U.S. 389 (1971). I no~e that 

while the NIOSH report and its supporting documentation are 

not part of the stipulated record the operator, in the face 

of that report, continues to stand on its cross motion and 

has offered no evidence to contradict the report. With the 

matter in this posture, I am free to infer there is no 

evidence other than the pleadings and supporting instruments 

because there is no evidence that the inhalation of quartz 

dust generated naturally increases the risk of developing 

silicosis or black lung in either the short or long term. 

This bald assertion is unsupported by any medical or scientific 

evidence. It apparently depends upon a claim that an examination of studies conducted in Great Britain concerning the 

relationship between quartz dust and the development of 

coal-workers' pneumonocoiosis shows there is no correlation. 

These studies are unidentified and were not submitted for 

the record. The NIOSH report, on the other hand, deals specifically 

with this issue and concludes the weight of reputable scientific 

and medical thought is that "a key factor in the development' 

of silicosis is the duration of exposure multiplied by dust 

concentration". (Exhibit 3, Para. 8). The studies submitted 

by NIOSH, and not disputed by the operator, also show that 

quartz must be regarded as a possible cause of black lung, 

"especially where mixed dust exposure may be low, but the 

proportion of quartz high". (Exhibit 3, Refer;ence 7, p. 1275; 

Reference 11, pp. 123-125, Reference 14, p. 191). 

65 
to be considered, and so need only examine those materials 

to ascertain whether an issue of material fact exists. S.E.C. 

v. Am Commodity Exch., 546 F.Zd 1361, 1365-66 (10th Cir. 1976); 

Manetas v. International Petroleum Carriers, Inc., 541 F.Zd 408, 

414 (3d Cir. 1976); Commission Rule 64. My review of the 

parties materials leads me to conclude there is no triable 

issue of fact with respect to the charge that the violations 

cited were "significant and substantial". 

I deal first with the Secretary's claim that any concentration of quartz in excess of the 100 micrograms allowed 

by section 205, 30 C.F.R. 70.101, is per se a significant 

and substantial violation. 

Silicosis is a condition of massive fibrosis of the lungs 

marked by shortness of breath. It results from inhalation 

_..,. - ..... 

of silica dust, is dose and time dependent and medically 

incurable. Only technical preventive measures in the workplace 

can control or eliminate the problem. A description of 

silicosis, extracted from a primer prepared for workers, 

graphically illustrates the disease's progress. 

The main symptom is shortness of breath, at first 

occurring only during physical activity, but soon 

appearing after less and less exertion, until 

eventually the victim is short of breath even at 

rest. This is caused by many small round lung 

scars that dev~lop from irritation by silica 

dust. These hard inelastic scars -- just like 

those on skin that result ·from an operation -- make the lungs stiff, so that it takes more 

work to inflate them with air. The scars also thicke~ the walls of the air sacs, blocking 

transfer of oxygen into the blood; tired blood is 

66 
a characteristic finding in silicosis. The 

area surrounding each scar becomes stretched and 

distorted, breaking down the normally tiny, delicate air sacs so that they form larger thicker-walled 

sacs, a form of localized emphysema. Further 

reaction to the silica may cause scars to join 

into larger scars; some may occupy the entire 

lung. This process, progressive massive fibrosis, 

is frequently accompanied by increasing susceptibility 

to tubercuolsis and other infections. Finally, the 

heart, which must pump blood through these stiff, 

inelastic lungs, becomes weakened and enlarged and 

fails to pump effectively. _!l/ 

Silicosis is a "continuum" or progres·sive disease. The 

amount of silica estimated to be inhaled in 50% of those who 

die from silicosis is 5 grams. (Exhibit 3, Reference 5). 

This is about one-half a teaspoon. While there is some 

uncertainty over the manner in which the disease progresses 

from its least serious to its disabling stage, it is certain 

that prolonged exposure above safe limits contributes to the 

progression. It also appears that a severe stage of the 

disease may result from brief as ~ell as intermittant or 

interrupted exposure. (Exhibit 3, References 5, 6). In its 

most serious form, silicosis is a chronic and irreversible 

obstructive pulmonary disease that like black lung or in 

association with black lung can create an additional strain 

_!l/ Stellman and Daum, Work is Dangerous to Your Health, Vintage 

Books, New York (1973), 168. Only dust containing free (uncombined) 

silica can cause silicosis. The disease is one of the 

pneumon6conioses, a group of lung diseases which result from 

inhalation of excessive amounts of respirable dust in industrial 

environments such as mining, quarrying, foundrys and textile 

mills. See, American Textile Mfgrs. Inst. v. Donovan, 452 

u·. s. 420 (1981). -- -

67 
on cardiovascular functions and can contribute to death from 

heart failure. While there is some disagreement in the 

scientific and medical community over the true role of quartz 

in the development of black lung~ the present consensus 

in reputable medical and scientific thinking is that quartz 

dust exposure in excess_ of the established and accepted 

threshold limit of 0.1 milligrams per cubic meter of air 

may be an important factor in the development and rapid 

progression of coalworkers' pneumonoconiosis. In fact, there 

is no discernable disagreement over the fact that exposure 

of miners to high concentrations of free silica (in excess 

·of 5%) may, standing alone, or when mixed with coal mine 

dust trigger over the short or long run, depending on individual 

susceptibility, adverse pathogenic or fibrogenic reactions in 

lung tissue. 11_/ 

13/ Contrary to the operator's contention, the statute does not 

restrain MSHA from acting to prevent irreversible health damage 

until miners actually suffer the early symptoms of silicosis or 

black lung. Instead the law is a ma~date to reduce the risk of 

that irreversible damage--especially for those miners who have 

regular exposure to the causal agent, respirable mine dust. In 

the present case, MSHA and NIOSH have adequately documented the 

risk of such damage attributable to continued exposure to quartz 

dust. The medical evidence ~hows that the acute symptoms of 

silicosis alone or in conjunction with black lung (anthracosis) 

weaken the miner's pulmonary system and increase his or her ~usceptibility to the adverse effects of subsequent pathogenic 

exposure. See sections 106(a)(6), (7), 202, 205 and relevant 

legislative history together with-.E:xhibit 3 and its attached 

References and Bibliography. For these reasons, I hold MSHA 

is authorized to categorize as significant and substantial 

any level of exposure to quartz dust that passes the threshold 

of the medically permissible exposure level of 100 micrograms. 

68 
IV 

A serie~ of studies of mining and other dusty occupation~ 

in the second decade of the twentieth century revealed that 

silicosis was a ~evere health problem in the United States. 

In 1933, the United Mine Workers of America and the Pennsylvania 

Department of Labor and Industry surveyed pulmonary disease 

among anthracite miners. 14/ This study confirmed that the 

threshold or permissible quartz con~entration of a respirable 

dust mass should not exceed 5 percent. 

In 1950 the U. S. Department of Interior, Bureau of Mines, 

reviewed the literature on dusts, with emphasis on the relationship to dust diseases. Efforts to control industrial dusts 

have historically relied on the medicolegal principle of dose 

response. This principle holds there is a systematic relationship 

between the severity of a· response to an industrial dust 

hazard such as quartz and the degree of exposure. This in 

turn is based on the concept that the magnitude of toxicity 

of quartz dust is proportional to its concentration in the 

total respirable coal mine dust mass. Thus, as the level of 

exposure decreases there is a decrease in the risk of injury, 

and the risk becomes negligible when exposure falls below 

certain tolerable (threshold or permissible) levels or 

concentrations. (Exhibit 3, Reference 3). 

14/ Sayers, Anthraco-S1licosis Among Hard Coal Miners, U.S. 

Public Health Service Bulletin #221 (Dec. 1935). 

69 
.Utilizing this principle and concept, the American 

Conference of Governmental Industrial Hygienists (ACGIH) 

adopted a formula known as the Threshold Limit Value~Time 

Weighted Average (TLV-TWA) respirable-mass formula. Under 

this formula as the percent of quartz increases the allowable 

total respirable coal mine dust mass is decreased. 12._/ This 

is the type of formula which Congress had in mind in enacting 

section 205 and from which the Secretary of HEW derived the 

formula promulgated in 30 C.F.R. 70.101. 42 P.R. 59294 

(1977). It is specifically designed to accommodate the 2 

milligram limit on the total respirable dust mass in surface 

and underground coal mines. 

NIOSH and the ACGIH continuously review and monitor 

the toxicity of airborne cont.aminants to determine the safe 

concentrations to which most workers can be exposed with.out 

endangering health. TLV-TWA's and NIOSH's criteria papers 

(Exhibit 3, Reference 8) are based on the best available 

evidence from industrial ~xperience, from experimental human 

and animal studies, and, when possible, from a combination 

of the three . .!!_/ The medical and scientific basis for the 

15/ Documentation of Threshold Limit Values, (ACGIH, 4th ed.) 

364-365 (1981). The formula was first adopted in 1968 based 

on work done by Ayer. See, Ayer, H.E., The proposed ACGHI 

mass limits for quartz: Review and Evaluation. Am. Ind. 

Hyg. Assoc. J. 1968; 29:336-342; Id. 30:117 (1969). 

16/ TLV's Threshold Limit Values for Chemical Substances and 

Pliysical Agents in_ the Workroom Environment (1982), at 2. 

70 
quartz limit is carefully documented in the ACGIH's publication entitleQ. "Documentation of Threshold Limit Values". 

(Exhibit 3~ Reference 8). Since the TLV respirable mass 

formula for quartz dust has been incorporated in an improved 

health standard, 30 C.F.R. 70.101, it has the force and effect 

of law. 

Applying .the formula to the cases in question, the 

Secretary reduced the applicable 2 milligram standard to .9 

milligrams. Thereafter compliance or enforcement sampling 

showed the lowered standard had been violated. The operator 

does not dispute this. It is clear that the violations 

charged did, in fact occur. 

Further a preponderance of the evidence shows that for 

many years the medical and scientific com~unities have accepted 

as established fact that the exposure of miners to free silica 

in concentrations that exceed 5 percent of the total respirable 

dust mass in their environment poses a significant risk to 

their short and long term health.~/ (Exhibits 2, 3). 

It is obvious that in enacting section 205 Congress made 

a conscious decision to call upon the expertise of NIOSH 

and MSHA and to delegate to them the authority to make a 

policy determination that would strike a balance between what 

is and is not the safe upper limit of quartz exposure. 

I7Tin fact, NIOSH has urged that the limit be reduced to 2.5 

percent or 50 micr0grams. 42 F. R. 23995 (1980). 

71 
They have done that by promulgating the TLV-TWA respirable 

mass formula for use wherever the free silica in the atmosphere 

of a single production shift exceeds 5 percent of the total 

respirable dust mass. All of this was done with prudence 

and deliberation in a lengthy public rulemaking proceeding. 

The operator's suggestion that the formula was plucked out of 

thin air and arbitrarily applied is clearly mistaken. 

I find there is an indisputable correlation between 

the level and duration of exposure of the respiratory tract 

to free silica and the development of fibrogenic tissue in 

the lungs. Where, as here, the exposure substantially exceeded 

the threshold limit for an extended peri6d of time all doubts 

as to the significance of the risk of a material health impairment must be resolved in favor of the miners. 18/ 

18/ When Congress enacted section 10l(a)(6) of the Act in 

1977, it recognized that the validity and enforceability 

of health standards should be judged by criteria that are 

different than those applied to safety standards. The 

Supreme Court has confirmed this. See Industrial Union Dept. 

v. American Petroleum Institute, 448 U.S., supra, 649, n. 54; 

American Textile M~frs. Inst. v. Donovan, 452 U.S. 490, 

512 (1981). Indee in the Benzene case the Court held that 

so long as an agency's findings as to the safe level of a 

toxic or carcinogenic substance or physical agent are supported 

by a body of reputable medical and scientific thought "the 

agency is free to use conservative assumptions in interpreting 

the date . . . risking error on the side of overprotection 

rather than underprotection''. Industrial Union, supra, at 

656. It is axiomatic that occupational health legislation 

is to be liberally construed to effectuate the Congressional 

purpose. Whirlpool Corp. v. Marshall, 445 U.S. 1, 13 (1980)~ 

72 
This postulate, I find, was recognized by Congress when 

it defined i~ section 205 the basic. relationship between 

the level of quartz concentrations that do and do not present 

significant risks of material health impairment. I further 

find the Secretaries' complementary determination of the 

line between the safe and the unsafe while not demonstrable 

with mathematical nicety accords with the best available 

medical and scientific evidence. This, I beli~ve, is all 

that is required. Compare American Textile Mfgrs. Inst. 

v. Donovan, 452 U.S., supra, 495-504, 509. Indeed in view of 

the legislative determination that the dose response curve 

is to be set at a 5 percent concentration in a total respirable 

dust mass of 2 milligrams (0.1 mg) any attempt to alter that 

curve and thereby reduce the protection afforded the miners 

by the existing standafd would fall afoul ·of section r61(~)(9) 

of the Act unless and until it can be shown that a less . stringent standard will provide the same protection. ~/ 

The operator's reliance on Consolidation Coal Company v. 

Secretary, 4 FMSHRC 1559 (1982) is misplaced. There the trial 

judge vacated an S&S charge on the ground the Secretary failed 

19/ Section 10l(a)(9) provides that "No mandatory health or 

safety standard promulgated under this title shall reduce 

the protection afforded miners by an existing mandatory health 

or safety standard". A rejection of the S&S charge would be 

tantamount to a finding that exposure to quartz dust above 

the threshold or safe level is insignificant or de minimis 

and the risk insubstantial. This would vitiate tne deterrent 

effect of the S&S charge and run counter to the Congressional 

purpose that underlies section 104(e). 

73 
to prove any relationship between the do~e exposure and a . . 

significant risk to the health of the miners. That deficiency 

was cured in this case. 

A preponderance of the probative medical and scientific 

evidence in these cases shows there was a measurable relationship between the concentrations of respirable quartz found 

and the pulmonary disorders of miners regularly exposed to 

such concentrations. There is therefore substantial evidence 

to support the conclusion that the concentrations in question 

"could be a major cause of a danger to ... health". Secretary 

v. National Gypsum Company, 3 FMSHRC 822, 827 (1981). 

I am mindful that the statute does not require that an 

exposure to fibrogenic concentrations of quartz dust present 

an imminent health hazard, only a "reasonable likelihood of 

an ... illness of a reasonably serious nature" during a· 

miner's normal working life as the result of such exposure. 

National Gypsum, supra, 828. It is undeniable that silicosis 

is an illness of a "reasonably serious,f.lature". Further, 

the undisputed medical and scientific evidence shows that 

even intermittant exposure creates a "likelihood" or 

possibility that a one-time (single shift) exposure could 

lead to a serious health impairment or functional disability. 

Indeed, unless the threshold lin1it is; to be rendered meaningless 

it must be accorded the status of the determinant between what 

is and is not significant and substantial. A statute may 

74 
not be construed to impute to Congress a purpose to paralyze 

with one hand what it sought to promote with another. 

v 

Section 10l(a)(6) of the 1977 amendments to the 1969 

Coal Act adopted almost in haec verba the language of section 

6(b)(5) of the Occupational Safety and Health Act. '!:.!l_/ Under 

section section 10l(a)(6), the validity of procedures and. 

standards designed to attain "the highest degree of health 

and safety p.rotection for the miner" are to be judged by 

whether the Secretary has shown by the "best available evidence" 

that "it is more likely than not" that the permissible exposure 

limit (100 plus micrograms) presents a significant risk of 

material health impairment. Industrial Union v. American 

Petrol. Inst., 448 U.S. 607, 653 (1980). This standard 

constitutes a recognition by Congress of special problems in 

regulating health risks as opposed to safety risks. Id. at 649, 

n. 54; American Textile Inst. v. Donovan, 452 U.S. 490, 

512 (1981). As the Co~rt noted, in the case of safety hazards 

the risks are generally immediate and obvious, while in the 

case of health hazards the risks may not be apparent until 

20/ The only difference was the omission of the "feasibility" 

requirement found in the first sentence of section 6(b)(5). 

A "feasibility" requirement is, however, to be found in 

the third sentence of section 10l(a)(6). The operator 

does not claim that the 100 microgram standard is technologically 

or economically infeasible. 

75 
a worker has been exposed for a long period of time. ~/ 

In both the Benzene and Brown Lung cases, the Court took 

notice of the fact that to protect workers from material 

hialth impairment, ~ regulatory agency must rely on predictions 

of possible future events and extrapolations from limited 

data. Industrial Union, supra, at 655-656; American Textile 

Mfgrs., supra, at 495-505, and n. 25. This does not mean 

that MSHA is clothed with unreviewable discretion. What it 

does mean is that MSHA's mandate necessarily requires it 

to act, even where information is incomplete, when the best 

available evidence indicates a serious threat to the health 

of miners. At the same time, to support a finding that a 

health hazard is significant and substantial MSHA has a duty 

to pinpoint the factual evidence ~nd the policy consideritions 

upon which it relied. This requires explication- of the 

assumptions underlying predictions and extrapolations and 

of the basis for its resolution of conflicts and ambiguities. 

Thus, as I view the matter a Commission trial judge must examine 

not only MSHA's factual support, but also the "judgment calls" 

and reasoning that contribute to its final decision. American 

Federation of Labor, ETC. v. Marshall, 617 F.2d 636, 651 (D.C. 

Cir. 1979), affd. 452 U.S. 490 (1981); Industrial Union Dept., 

AFL-CIO v. Hodgson, 499 F.2d 467, 475-476 (1974). 

21/ Congress wanted tne Secretary to protect miners not only 

against known harms, but also against risks of harms not wholly 

understood. Comparable provisions in the OSH Act have been construed to embrace protection from the "subclinical effects" of a 

toxic substance. United Steelworkers of America v. Marshall, 

647 F.2d 1189, 1251-1252 (D.C. Cir. 1980). Use of the S&S charge 

to deter violations is obviously in furtherance of MSHA's authority 

to control not only actual symptoms but to prevent early symptoms from becoming chronic. · 

76 
This I have, to the best of my ability, endeavored to 

do. And hav~ng done so, I conclude that the latest and best 

scientific and medical evidence available supports the view 

that the violations in question were significant and substantial. 

Accordingly, I find the report and documentation supplied 

by the Secretary and NIOSH are legally .sufficient to support 

the S&S charges. 

Order 

Th~ premises considered, it is ORDERED that the contest 

of the citations in question be, and hereby are, DENIED. It 

is FURTHER ORDERED that for the violations of 30 C.F.R. 

70.101 found the operator pay a total pen~lty of $198 and 

that subject to payment the capti6ned matters be DISMISSED. 

Distribution: 

Frederick W. Moncrief, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 

22203 (Certified Mail) 

Louise Q. Symons, Esq., U.S. Steel Mining Co., Inc., 600 

Grant Street, Pittsburgh, PA 15230 (Certified Mail) 

7'7 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ROGER L. HALL, 

v. 

B & B MINING, INC., 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 . JAN 141983 

Complainant 

Complaint of Discharge, 

Discrimination, or Interference 

Respondent 

Docket Nos. VA 79-128-D 

VA 80-170-D 

DECISION APPROVING SETTLEMENT 

This proceeding involves two complaints of discharge, discrimination, 

or interference filed by Roger L. Hall against B & B Mining, Inc., pursuant 

to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977. 

The complaint filed in Docket No. VA 79-128-D alleges that respondent dis-_ 

charged Hall on or about June 4, 1979, in violation of section.lOS(c)(l) of 

the Act. Respondent alleges that it discharged Hall because he missed 2 or 

more days of work without obtaining permission to be absent, whereas Hall 

contends that he was discharged because he requ~sted that the Mine Safety and 

Health Administration conduct a special inspection of respondent's mine. 

Hall requested an immediate arbitration hearing with respect to his discharge 

of June 4, 1979, and, as a result of that hearing, Hall was reinstated to his 

prior position and awarded back pay. 

The complaint filed by Hall in Docket No. VA 80-170-D alleges that respondent again discharged him on or about April 7, 1980, in violation of 

section 105(c)(l) of the Act. Hall claims that respondent's mine was closed 

for 1 week and 2 days. When the miners were called back to work, Hall alleges that he asked that the mine be inspected before the miners returned to 

work. The primary reason for requesting the inspection related to Hall's 

claim that respondent was using 12-inch roof bolts which had been falsely 

labeled as 36-inch bolts. Management denied Hall's request. Hall then 

asked for 2 days of personal leave which, Hall says, were granted. Hall 

then claims that when he returned to work, he was discharged. Respondent's 

answer to the complaint in Docket No. VA 80-170-D alleges that Hall was discharged for illegal picketing activities. 

These cases were first assigned to Administrative Law Judge James A. 

Laurenson who convened a hearing in Abingdon, Virginia, on November 5, 1980, 

to consider the issues raised by the complaints. At the hearing, counsel 

for respondent stated that respondent had filed a petition in bankruptcy on 

February 21, 1980, and that the filing of a bankruptcy action automatically 

stays all proceedings against a corporation until a party has obtained permission from the bankr~ptcy court to proceed. Judge Laurenson ruled at the 

hearing that he was required by the provisions of 11 U.S.C. j 362 to continue the cases until counsel for complainant had obtained permission from 

the bankruptcy court to proceed. 

'i' 8 
Subsequently·, the counsel who had represented respondent at the hearing 

on November 5, 1980, withdrew as counsel in this proceeding because a dispute 

among respondent's stockholders had created a conflict of interest which made 

it improper for him to represent respondent in this proceeding. 

Judge Laurenson rescheduled a hearing after permission to proceed had 

been obtained from the bankruptcy court, but that hearing had to be canceled 

because of budgetary constraints. Judge Laurenson again scheduled the cases 

for hearing, but that hearing also had to be canceled when Judge Laurenson 

became one of the judges who were subject to a reduction in force. 

The cases were thereafter reassigned to me and I issued a prehearing 

order on February 12, 1982, requesting that the parties provide answers to 

basic factual and procedural questions by March 12, 1982, but the time for 

answering had to be extended so that respondent's newly assigned counsel 

could obtain records from the former counsel who had withdrawn. Thereafter, 

additional extensions of time had to be granted because complainant's counsel 

was forced to undergo surgery for a serious back problem which involved a 

long period of post-operative recuperation. 

The cases were finally scheduled for hearing on January 11, 1983, in 

Abingdon, Virginia. Before a formal hearing had begun, I asked counsel for 

the parties if they had discussed settlement. Complainant's counsel stated 

that he had not tri~d to settle the cases with the lawyer who was now representing respondent, but that he had tried unsuccessfully to settle the cases 

with respondent's former attorney. Counsel for respondent indicatetl that he 

was quite willing to discuss settlement. Therefore, the parties·were given 

an opportunity to discuss settlement. Shortly thereafter, counsel for complainant advised me that the parties had reached a settlement agreement under 

which respondent had agreed to pay complainant an amount of $1,300 with respect to the complaint filed in Docket No. VA 79-128-D and an amount of $700 

with respect to the complaint filed in Docket .No. 80-170-D, or a total of 

$2,000 for both cases, including attorney's fees. 

I find that the settlement agreement should be approved. Complainant 

had obtained a job with another employer after his second discharge and 

there was not a long period for which back pay could have been required even 

if a hearing had been.held on the merits and an outcome favorable to complainant had resulted. Additionally, in view of the fact that respondent is 

now involved in formal bankruptcy proceedings, the usual relief of reinstatement of complainant to his former position would not be possible. 

WHEREFORE, for the reasons hereinbefore given it is ordered: 

(A) The parties' settlement agreement is approved. 

(B) Within 30 days from the date of this decision, the complaint filed 

in Docket No. VA 79-128-D shall be considered satisfied and dismissed upon 

payment by respondent of $1,300.00 to complainant and the complaint in Docket 
No. VA 80-170-D ~hall be considered satisfied and dismissed upon payment by 

respondent of $700.00 to complainant. The total payment of $2,000.00 includes 

allowance for attorney's fees. 

Distribution: 

~ef£;~~{7- Administrative Law Judge 

(Phone: 703-756-6225) 

S. Strother Smith III, Esq., Attorney for Roger L. Hall, Exit 9 - I 81, 

P. O. Box 1204, Abingdon, VA 24210 (Certified Mail) 

Stephen A. Vickers, Esq., Attorney for B & B Mining, Inc., Copeland. & 

Molinary, 212 West Valley Street, P. 0. Drawer 1036, Abingdon, VA 24210 

(Certified Mail) 

Roger L. Hall, Route 2, Box 465A, Chilhowie, VA 24319 (Certified Mail) 

Special Investigations, -MSHA, U. S. Department of Labor, 4015-l-l;ifson 

Boulevard, Arlington, VA 22203 

80 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 'SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(l03) 756-6210111112 

Civil Penalty Proceedings 

Docket No. PENN 82-63 

JAN .14 1983 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner A.O. No. 36-02695-03001 F E24 

v. 

AUSTIN POWDER COMPANY, 

DOAN COAL COMPANY, 

Respondent 

Docket No. PENN 82-33 

A.O. No. 36-02695-03012 F 

Doan Strip Mine 

DECISIONS 

Appearances: Robert Cohen, Attorney, U.S. Department of Labor~ 

Arlington, Virginia, for the petitioner; William M. Hanna, 

Esquire, Cleveland, Ohio, for the respondent Austin Powder 

Company; Robert M. Hanak, Esquire, Reynoldsville, Pennsylvania, for the respondent Doan Coal Company. 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings involve proposals for an assessment of civil 

penalties brought by the petitioner against the respondents pursuant 

to § llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 820(a) (1978), for three alleged violations of 30 C.F.R. § 77.1303(h). 

The citations were the result of a blasting fatality which occurred at 

the Doan Strip Mine on July 30, 1981, and a resulting MSHA accident 

investigation with regard to that fatality. One of the citations was 

issued on July 31, 1981, and was served on the respondent ~oan Coal 

Company, the operator of the mine in question, and the other two·were 

issued on July 31 and August 6, 1981, and were served on the respondent 

Austin Powder Company, an explosives company who MSHA claims was performing blasting activities on the mine property. 

The cases were hearl in Pittsburgh, Pennsylvania, and all parties 

appeared and were repre,ented by counsel. All parties were afforded 

an opportunity to file posthearing proposed findings, conclusions, and 

briefs. MSHA and respondent Austin Powder filed post-hearing arguments, 

but respondent Doan Coal Company did not, but has opted to join the 

arguments advanced by Austin Powder. All arguments presented by the parties, 

including those made at the hea~ing on the record, have been considered 

by me in the course of these decisions. 

81 
Applicable Statutory and Regulatory Provisions 

1. The Feperal Mine Safety and Health Act of 1977, P.L. 95-164, 

30 U.S.C. § 801 et ~ 

2. Section 110-i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 CFR 2700.1 et ~· 

Issues 

The issues presented in these proceedings include (1) whether the 

named respondents have violated the provisions of the Act and implementing 

regulations as alleged in the proposals for assessment of civil penalties 

filed in these proceedings, and, if so, (2) the appropriate civil penalties 

that should be assessed against each respondent for the alleged violations 

based upon the criteria set forth in section llO(i) of the Act. Additional 

issues raised by the parties are identified and disposed of in the course 

of this decision. 

In determining the amount of a civil penalty assessment, section 

llO(i) of the Act requires consideration of the following criteria: 

(1) the operator's history of previous violations, (2) the appropriateness 

of such penalty to the size of the business of the operator, (3) whether 

the operator was negligent, (4) the effect on the operator's ability to 

continue in business, (5) the gravity of the violation, and (6) the 

demonstrated good faith of the operator in attempting to achieve rapid 

compliance after notificati_on of the violation. 

Additional issues, as stated by petitioner MSHA in its post-hearing 

brief, are as follows: 

1. Do the fact$ in this case support the conclusion that 

Austin Powder performed services at the Doan Strip 

Mine and therefore is liable under the Act for any 

violations resulting from the actions of its agents? 

Can Austin Powder limit its liability under the Mine 

Act pursuant to its service contract with Doan Coal? 

2. Is the concept of strict liability applicable to 

the alleged violations of 30 CFR 77.1303(h) at issue? 

3. On July 30, 1981, were the miners at the Doan Strip 

Mine given ample warning that a blast was about to 

occur? 

4. If the violations of 30 CFR 77.1303(h) did occur, 

were they caused by the negligence of either Austin 

Powder a?d/or Doan Coal? 

82 
The issues, as stated by respondent Austin Powder Company in its 

post-hearing brief, are as follows: 

1. No violation of 30 C.F.R. § 77.1303(h) in fact occurred. 

2. Austin Powder was not, at the time of the alleged violations, and is not now, an operator, agent, or independent 

contractor within the meaning of the Act, and is not subject 

to the jurisdiction of MSHA with regard to the actions and 

events alleged in this proceeding. 

3. All individuals allegedly committing violations were, as 

a matter of law, not employees or agents of Austin Powder 

at the time of the alleged violations. 

4. The regulation which Austin Powder is charged with yiolating 

is unenforceably vague and ambiguous, as applied to the facts 

here. 

Discussion 

On Thursday, July 30, 1981, a fatal blasting accident occurred at 

the Doan Coal Company's strip mine, No. 1 Pit' (stock pile area). 

Dennis Alvatroha, a laborer employed by Doan Coal Company, was observing 

the blasting operation from a stock pile, and while seated·at, or running 

from that.location, was struck by flyrock and other debris from the blast. 

The actual blasting work was being performed by Austin Powder Company, 

in the person of a licensed blaster, Jeffrey Lucas and hi9 crew,.. and~.the 

blasting work was performed at the specific request of Doan Coal Company, 

who had no experienced blasters of its own. MSHA conducted an investigation 

of the accident, and at the conclusion of same issued the three citations 

in question. All of the citations charge the named respondents with 

violations of mandatory safety standard 30 CFR 77.1303(h), which provides 

as follows: 

Ample warnings shall be given before blasts are 

fired. All persons shall be cleared and removed 

from the blasting area unless suitable blasting 

shelters are provided to protect men endangered 

by concussion or flyrock from blasting. 

The citations which were issued in these proceedings were issued 

after the investigation conducted by MSHA to determine the facts and 

circumstances surrounding a fatality which occurred when a miner was 

struck by flyrock during blasting of overburden. None of the conditions 

or practices cited as alleged violations were actually observed by the 

inspectors, and they issued the citations on the basis of information 

which came to their attention during the investigation. Two of the citations 

served on respondent Austin Powder Company by MSHA Inspector Lyle F. Bixler 

are as follows: 

83 
Section 104(a) Citation No. 1041342, July 31, 1981, which states 

the following cpnditions or practices: 

All persons were not cleared and removed from 

the blasting area and suitable blasting shelters 

were not provided to protect men endangered by 

concussion or flyrock from blasting at the No. 1 

Pit in that the contracted Austin Powder Co. blaster, 

Jeffery A. Lucas stated during testimony that flyrock 

fell across him and up to 30. feet behind him while 

he was detonating a charge. This citation will not 

be terminated until all persons are instructed on 

the hazards of flyrock. This citation was issued 

dur~ng an investigation of a fatal accident. 

Section 104(a)-107(a) Citation/Order No. 1041345, August 6, 1981, 

which states as follows: 

The proper warning was not given by the contract 

blaster Jeffery A. Lucas, Austin Powder Co., prior 

to detonation of a shot at Pit 010 of Doan Coal Co. 

according to the posted requirements. This is a 

violation of § 77 .1303 (h) Part .77, 30 CFR. The 

blast signals which were posted at the mine entrance 

were: 3 ten second signals, 5 minutes before blasting 

and short pulsating signals 1 minute before blast, all 

clear, 1 prolongeq 30 second blast (air horn) according., 

to testimony given during the investigation of a fatal. 

blasting accident that occurred on 7/30/81 Pit 001, 

Doan Coal Co., the signal given was three blasts (air 

horn) that were sounded 30.seconds to 1 minute before 

the shot was detonated. This Order will not be terminated 

until this unsafe practice is eliminated by the employees 

being properly instructed on th~ safe procedures of 

blasting and such procedures are observed by an authorized 

Representative of the Secretary at Doan Strip mine I.D. 

36 02695. 

The third citation was served on the respondent Doan Coal Company by 

MSHA Inspector Michael Bondra, on July 31, 1981, and the conditions or 

practices cited are as follows: 

All persons were not cleared and removed from 

the blasting area and suitable blasting shelters were 

not provided to protect men endangered by concussion 

or flyrock from blasting at the No. 1 Pit (001) in 

that Dennis Alvatrona, laborer was fatally injured 

by f'lyrock when blasting was done. This citation 

was issued during a fatality investigation and 

will not be terminated until all persons are 

instructed ·on the hazards from flyrock when blasting 

is done and remove themselves to a safe area. Dave 

Doan was Supervisor. 

84 
Testimony· and evidence adduced by MSHA 

Jeffrey A. Lucas testified that he is employed by the Austin Powder 

Company as a licensed blaster for approximately a year and a half, and 

that prior to that time he worked as a laborer helping on shots and 

loading trucks. He was licensed by the State of Pennsylvania at the 

time of the shot in question on July 31, 1981,. and he gained his experience 

as a blaster while working part time with Austin Powder while he was 

in school. He stated that he was faimilar with Doan Coal Company's 

strip mining operation, and he confirmed that he went to the mine site 

on July 30, 1981, for a "shot", and he did so after being requested to go 

there by Doan Coal. He stated that the mine site is some 20 to 25 miles 

from his office, and that prior to the shot in question he had been at 

the Doal strip mine four or five times a week with other blasters. During 

1981, he spent 50% of his work time at the Doan strip mine performing 

blasting, and that he usually-spends from two to five hours a day there, 

or as long as it takes to get the job done (Tr. 23-26). 

Mr. Lucas stated that when he goes to the Doan strip mine he 

does so in response to a specific telephone or other request from Doan. 

He has a two or three man crew who assists him during the blasting 

operation, and he is in charge of his crew. He gives them their work 

assignments, and depending on the job, two or three vehicles are taken 

along with the crew. The vehicles are driven off mine property at the 

end of the day and are not left there. He explained that the first thing 

he does when he arrives at the mine site is to locate the shot area so 

as to determine whether the drilling has been completed. The site of the 

shot is given to him by Doan Coal, and his job is to load'' and shoot i:he 

shot. This entails the wiring of the shot, and one of his drivers will 

notify Doan Coal's employees where the shot will be fired, a~d this is 

usually done approximately ten minutes before the shot is fired so that 

everything is shut down (Tr. 26-29). 

Mr. Lucas stated that blasting signs are posted "coming into" the 

Doan property, but not at every shot blasting area. After the shot is 

wired and the circuits tested, all mine machinery is shut down, and it 

is the usual practice for one of his truck drivers to sound a signal. 

The usual procedure calls for him to tell the driver to sound a signal, 

and he does so by means of an air horn. At the time of the shot in 

question, the signal used was three 20-second blasts immediately prior 

to the shot. The siren would be sounding tor at least a minute prior 

to the blast, but prior to that signal, no horns would be sounded. He 

believed this was enough time for anyone to get out of the area because 

the area is actually cleared before these signals are given. He explained 

that it was his responsibility to clear the blasting area, and he indicated 

that he did so by notifying everyone initially by radio and visually. 

The radio notification is usually given 10 to 15 minutes before the actual 

detonation, and everyone at the mine who has a radio is on the same frequency. 

Those not in radio contact are notified personally (Tr. 29-33). However, 

he acknowledged that prior to a shot he does not actually ascertain what 

every employee on mine property happens to be doing before he notifies 

them all individually by telephone, but that a call is made to the mine 

superintendent's office (Tr. 26). 

85 
Mr. Lucas defined the "blasting area" as "an area that is safe when 

the blast goes off" (Tr. 37). He indicated that this area would vary 

depending on the size of the shot and how it is loaded~ and the terrain. 

He also indicated that he has "a good idea" as tp what this area is 

before blasting (Tr. 38). He stated that since the events of July 30, 1981, 

the signalling procedure has changed so that five minutes before any 

shot is fired, three 20-second blasts of a horn are sounded, arid one minute 

prior to the actual shot there is a one minute blast (Tr. 29). He examined 

a photograph (exhibit G-7-k), of a sign, and he indicated that he believed, 

but was not sure, that such a sign was posted on July 30, and that it 

calls for three 10-second signals five mintues before detonation and 

short pulsating signals one minute before the blast, and that it also 

calls for an "all clear" signal (Tr. 41). He believed that an all-clear 

was given, but again was not sure since he indicated that the actual 

signalling responsibility is delegated to his truck driver (Tr. 41). 

Mr. Lucas confirmed that he detonated the blast in question, and 

that he was positioned about 300 feet away when he set it off. He 

indicated that he was positioned "behind the blast", and he explained 

that the blast is put into an open space or cut, and that the blast 

"is going the opposite direction from me" (Tr. 44). He examined several 

exhibits, but could not state where he was located at the time of the 

actual shot, but did state that it was "in from the scale house" (Tr. 47). 

Mr. Lucas stated that after the shot was wired, five to ten minutes 

elapsed before it was actually shot, and that he observed no one inside 

the blasting area during this time. He further defined the "blast area" 

as "·anywhere that you suspect rock might fall", and he conceded that he 

was responsible to make sure that anyone in that area is in a safe 

location or protected (Tr. 50). He confirmed that he spent three hours 

at the Doan mine on July 30, and that he is paid by Austin Powder Company 

(Tr. 51). 

On cross-examination, Mr. Lucas stated that when he arrived at the 

blast scene, and before setting off the shot, he secured the area by 

making a determination that no one was in the foreseeable danger 

area of the blast, and as far as he knew the area where the victim was 

found had been cleared. Part of the procedu~e for securing the area 

included calling the mine office over the telephone and his truck driver 

went to the scale house to notify persons of the blast. All mine equipment 

was shut down prior to the blast, and while he did not personally hear 

the radio announcement, he is sure ,it was made (Tr. 51-52). He indicated 

that Austin Powder's policy is to give radio warnings of impending blasts, 

and that policy is still in use. This is in addition to the sounding 

or air horn signals and personal contact (Tr. 55). He secured the area 

on the day in question and he did not see the victim when the area was 

secured. 

Mr. Lucas confirmed that as a result of the accident, the State 

of Pennsylvania suspended his blaster's license for 90 days, and it was 

restored after he took a test before the 90 days were up. He does not 

86 
know the specific reasons for the suspension, but he confirmed that he 

had a license when the blast in question was set off (Tr. 58). 

Mr. Lucas stated that a dragline was located some 75 feet from 

the shot, but that several loaders and the scale house were three to 

four hundred feet away and he could not see them from where the blasting 

took place (Tr. 60). In his view, the loaders and scale house were out 

of danger, but whether they were in the "blast area" would depend on 

the definition of that term. The drag line was shut down and the operator 

was secure before the blast, and the other locations would normally be 

advised personally to shut down and secure (Tr. 62). 

Mr. Lucas stated that at the time of the blast they were using 

Austin 80% extra gel dynamite and Aus.tinite 15 ammonium nitrate 'Jlasting 

agents and that 24 holes were charged to a depth of some 45 to 50 feet. 

Each hole contained approximately 400 or 450 pounds of explosives, but 

each hole was detonated on a delayed basis, and did not go off all at 

once (Tr. 64). When asked how one determines what is a safe distance 

from such a shot, he stated that "there is no set formula for figuring 

the safe distance, * * * it is pretty much from experience you know where 

the shot is going'' (Tr. 66). He also indicated that a drill rig, a shot 

truck, and a driller's maintenance truck were all present near the blast 

site and that these constituted suitable blast shelters. If one is at 

a safe distance, there is no reason to crawl under these vehicles. The 

shot was triggered electrically, and he confirmed that during 1981 he was 

at the Doan Coal site three or five times a week performing blasting, 

and that 20 to 40 holes are usually charged at any given time (Tr. 6.9). 

He also confirmed that he is paid by Austin Powder Company, and that Austin 

Powder also provides and pays for other benefits such as vacation and 

insurance (Tr. 70). He does not belong to any union, and has performed 

blasting work for other strip mine operators similar to the work performed 

for Doan (Tr. 71). 

Mr. Lucas stated that he was "surprised" by the blast of July 30, 

in relation to other shots that he had in the same cut, and a lot more 

fly rock came out of the holes than he had expected. Some rock weighing 

approximately a pound or so', and four inches diameter landed near him, 

but most of the material was mud. He and his crew were around the truck, 

but no one was under it, and he was 20 feet from the truck while the 

closest rock fell about six feet from where he was standing~ Everyone 

had hard hats on, and no none from his crew advised him that any rocks 

had fallen near where they were standing (Tr. 73). He confirmed that he 

was standing some 300 feet from the blast itself, and he stated that the 

charged holes were vertical and that the shot went out from the open cuts 

that had been charged (Tr. 74). Mr. Lucas stated that Doan Coal Company 

.:::oes not have any licensed blasters, and since he has been working at 

the Doan Strip Mine they have never had any licensed blasters of their 

own (Tr. 74-75). 

87 
Theodore R. Williams, Blasting Inspector, State of Pennsylvania 

Department of Environmental Resources, testified that is a qualified 

blaster, and he· described the types of blaster classifications and the 

training required by the State. He stated that warning signs concerning 

blasting are usually posted at the entrance to the job site, and on 

occasion he has observed such a sign posted in the blast area itself. 

The purpose of such signs is to warn people entering the mine site or 

to control the blasting area. He believed that information on the 

warning signs should be the same as the actual warning signals given. 

He identified exhibit G-7(k) as a photograph of a warning sign showing 

the blasting signals which are to be used, and he believed the exhibit 

depicted a proper or adequate warning system. He believed it was adequate 

since the signal system depicted gives a signal five minutes before any 

blast, provides for pulsating blasts before the actual blast, and this 

sequence would be ample time for anyone to get clear of the blast. He 

did not believe that a one minute signal before the actual blast would 

be adequate (Tr. 84-93). 

On cross-examination, Mr. Williams conceded that in a noisy strip 

mining operation where a horn blast signal possibly could not be heard, 

he would personally contact people to warn them of any impending blast 

(Tr. 95). He also agreed that personal contact or radio contact would 

be sufficient notice to employees of any blasting. He also agreed that 

means other than a posted sign would be adequate notice to employees in 

any given circumstances (Tr. 96-97), and he explained this further when 

he stated (Tr. 98-99): 

Q. So, what is posted on a sign is not determinative, is not adequate notice in a particular 

factual situation? 

A. The sign itself should be proper as far as 

signals; however; to have communication with your 

employees with equipment on the site, there is no 

doubt in my mind that this .would have to do with 

communication to the operator, however, the signals 

should be sounded properly for people on the job.that 

are not on equipment and otherwise. 

Q. The important factor is to make sure that those 

employees do have notice that a blast is about to 

take place, right? 

A. This is my concern. I think they should be 

notified. 

Q. The method by which those employees are notified 

will carry from one situation to another, depending 

on the factual circumstances? 

88 
A. Definitely. 

Q. You cannot say here as based on your experience 

as a blaster that there is one particular method which 

is mandated to be followed in all instances everywhere? 

A. No. 

Mr. Williams also indicated that any posted sign signals should be 

followed, and ever though hand signals or radio communications are used, 

the posted warning signals should definitely be followed (Tr. 99). 

David Potempa, testified that at the time of the blast in question 

he was employed by Doan Coal doing "a little bit of everything", but 

that he is no longer employed there. He was .at the mine site at the time 

of the blast, and he stated that he arrived there in a pick-up and went 

to the scale house. He arrived at the mine property "about. less than 

five minutes before the blast" and was on the main road and driveway 

to the scale house. No one told him to take cover, but he knew there 

would be a shot, and when he got out of his truck he went to the 

scale house to get a can of pop, but he did not go there for the specific 

purpose of getting out of the blast area (Tr. 100-102). 

Mr. Potempa stated that the scale house is a "good 300 to 400 feet" 

from the area where the blast was fired, and when asked whether he believed 

the scale house is a designated "safe area"' he replied ''it depends on 

what you are hiding from". He believed it was probably safe from any 

blasting, but indicated that the scale house was not post~d wit~ any~· 

blasting warning signs. He also stated that a member of mine management, 

in the person of the owner's grandson, told him to go to the scale 

house. In addition, Mr. Potempa stated that he heard the blast warning 

signals as soon as he pulled up in front of the scale house and he 

shut off the pick up. The blast went off "probably less than a minute 

after the last warning signal was given, and he was in the scale house 

when the blast went off. He looked out the window and saw "all kinds of 

rock and debris thrown all over the place", but none hit the scale house, 

and none came close enough to cause any danger (Tr. 105). 

Mr. Potempa stated that when the blast was over, he drove his truck 

to the stockpile area which he described as being "off to the right" 

of the blast area, and while he was there he observed the accident victim 

lying on the roadway leading to the stockpile. His hard hat was off, and 

he was at the edge of the stockpile. Mr. Potempa stated that he did ' 

not believe the accident victim's body was "inside the blasting area", 

which is described as "probably about 300 feet away", but that the victim 

was found "probably close to 300 feet" (Tr. 107). 

Mr. Potempa testified that he was familiar with the posted blasting 

warning signs which were on the mine property, and he indicated that the 

signals given on the day in question were the "same type as the sign", 

but he could not specifically recall how many signals were sounded 

because he did not pay that much attention to it because "it is really 

89 
like an everyday thing to me" (Tr. 107). The roadway he used to get 

to the scale house was not barricaded, and he knew that there would 

be a blast becaμse he observed the trucks coming on to mine property 

and he also saw the victim earlier in the day. He knew when the blast 

was going off when he drove up to the scale house and heard the warning 

signals go off five minutes before the blast, and one minute before it 

was actually detonated. He believed that he received adequate warning 

of the blast and he also believed that he was in no danger because he 

was not in the blast area (Tr. 109). He observed no trucks driving 

around immediately before the blast, and he confirmed that he saw rock 

into and around the coal pile where the victim was found. He also 

confirmed that he could not see the blaster from the scale house (Tr. 110). 

On cross-examination, Mr. Potempa confirmed that he knew the accident 

victim, and that when he first discovered him he was about 300 feet from 

the actual location of the blast. He knew that the victim was working 

near the stockpile on a crusher, and his normal work station would be 

"the back part of the stock pile" (Tr. 112). His normal work station 

was farther from the blasting area than where he found him (Tr. 113). 

Mr. Potempa stated that he went to the scale house for some shovels 

for Mr. Doan's grandson Mike Stiles, and the scale house was located 

"on the other side of the hill from the blasting area". He heard no 

call over his pick-up radio pecause he had turned off the motor and was 

outside the truck. He also stated that "there wasn't a bit of danger 

over there" (Tr. 114). He described his normal procedure for shutting 

down prior to a blast as follows (Tr. 116-118): 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Had you just 

been out on the road when you heard the last one 

minute signal prior to the blast, what would 

you have done? 

THE WITNESS: I would have stopped and shut the 

pickup off. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Why would you 

have shut the pickup off? 

THE WITNESS: It is a natural thing. We always 

do it when they are going to shoot. If you are 

within so much range, because you know, the 

vibration, well, not too much in the pickup, but 

the dozer when it is run, it will crack the crank 

on it. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: You are saying 

regardless of where you are on the mine site, if 

there is a blast, the normal procedure for all 

equipment is to stop it even though you are outside 

the danger zone? 

90 
THE WITNESS: Yes, it depends what job you are. 

on or how close you are, but everyone shuts down. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Back up a little 

bit. Prior to this particular blast, had you been on 

the mine property when at.her blasts were shot by 

Austin Powder? 

THE WITNESS: Yes. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: And is the procedure that you followed on those other occasions 

approximately the same as on this date? 

THE WITNESS: Right, right. 

MSHA Inspector Mi.chael Bondra confirmed that he· conducted an investigation of the blasting fatality on July 31, 1981, and he identified exhibit 

G-4 as a copy of the report he prepared. He stated that he measured 

the distance from the actual blasting location to where the accident 

victim was last seen and it was 223 feet. He observed large rocks and 

clay in the area where the victim was found, and his investigation 

disclosed that the victim was struck by a single large rock weighing 

approximately 39 pounds (Tr. 125-129). 

Mr. Bondra stated that based upon interviews and measurements, 

he determined that there was a clear view from the area where the victim 

was last seen and the location where the blast occurred. /The distance 

from the shot to the blasting portion was 300 feet, and Mr. Bondra 

believed that if the blaster were looking where the victim was last 

seen he should have seen his yellow hard hat (Tr. 130). 

Mr. Bondra stated that the distance from the blasting location 

to the scale house was 400 feet, and that the house did not have a sign 

on it designating it a "safe area". In his opinion, the persons inside 

the house would not have been protected from a rock the size of the one 

which struck the victim in the event that it hit the roof (Tr. 131). 

The scale house had a metal roof· and framed material, and he believed 

the rock would have gone through (Tr. 132). 

' Mr. Bondra identified a sketch which he made as part of his investigative 

report, and in which he labeled an area 100 feet long by 100 feet wide 

as the "blasting area". He stated that this was a mistake, and that this 

area should have been labeled "blasting location". The "blasting area" 

is defined by section 77.2, and it means "the entire area around the 

blasting iocation where the blasting is being done shall be cleared in 

which concussion or flyrock material can reasonably be expected to cause 

injury" (Tr. 136). 

Mr. Bondra believed that the victim, the scale house, and the blaster 

and his crew were all within the "blasting area", and he reached this 

conclusion because flyrock and debris from the blast went beyond the 

areas where they were all located (Tr. 137). 

91 
Mr. Bondra testified that during his investigation, a truck driver 

(Martz) from another company who had just driven to the scale house told 

him that he saw.the victim near the stockpile prior to the blast. Mr. Martz 

knew that there would be a blast when he came to the scale house (Tr. 143). 

Mr. Bondra confirmed that he observed a blast warning signal sign posted 

on the property, and he also confirmed that such a sign is not required 

by any MSHA standard (Tr. 145). 

Mr. Bondra confirmed that he issued the citation charging a violation 

of section 77.1303(h), and he did so because the victim, the blaster, his 

crew, and the people in the scale house were not removed from the blasting 

area. He determined there were no suitable shelters by the scale house, 

and he considered the violation to be very serious. He issued the citation 

to Doan Coal because as the mine operator, Doan has the responsibility 

to comply and cannot delegate to this to an independent contractor. He 

believed that Doan should have been aware of the fact that all of the 

individuals mentioned were in the blasting area, and Doan should have 

seen to it that they were all removed. When asked what he believed to 

be a "safe haven for miners", he replied "out, say 500 feet" (Tr. 148-150). 

Mr. Bondra confirmed that he interviewed loader operator Bloom 

who told him that he had received the blast warning over the radio and 

that he in turn gestured to the accident victim. The victim then started 

to go back to the scale house, and Mr. Bloom assumed that's where he 

was going (Tr. 153). Mr. Bloom told Mr. Bondra that his motion to the 

victim was to "shut down your equipment" (Tr. 155). 

Mr. Bondra believed that Mr. Bloom should have seen to it that the 

victim went to a safe place, and that his negligence in failing t~ d·~ 

so is Doan Coal's negligence, and that Doan Coal should also have blocked 

the road to and from the scale house and posted someone there to secure 

the area (Tr. 156, 160). 

On cross-examination, Mr. Bondra testified that he is not a licensed 

blaster and is not trained in the use of explosives or in geology. He 

stated that his opinion that 500 feet would be a "secure area" was "an 

arbitrary stab" on his part, and that he does not have the background 

in explosives to say it is safe or unsafe (T,r .• 161). 

Mr. Bondra conceded that his investigation report abstract, at page 4, 

contained a statement that "the accident occurred when Dennis Alvatrona 

went to observe blasting operations" (Tr. 166). Mr. Bondra also conceded 

that it was his reasonable belief that the victim, Mr. Alvatrona, walked 

in to view the blasting operation" (Tr. 167). He also conceded that 

Mr. Alvatrona must have been notified of the impending blast because he 

went in to view it (Tr. 167). 

Mr. Bondra confirmed further that he h~s never had a blaster's 

license, has never taken a blaster's test, had had no training or education 

in blasting, has never read any blasting literature, and does not hold 

himself out as an expert in explosives or blasting (Tr. 171). 

92 
.Mr. Bondra ·confirmed that at the time he conducted his investigation 

none of the people he interviewed were under oath, they were not given 

an opportunity to sign any statements, no transcript was prepared, and 

the persons interviewed did not review their purported statements. He 

also confirmed that his accident ·report was compiled from notes made 

by him and others, that the purported statements made by individuals 

interviewed are not verbatim (Tr. 171-173). 

Mr. Bondra stated that a piece of equipment can be a blasting shelter, 

and he confirmed that a drill rig was near the blaster. He also stated 

that the rig would be a sufficient shelter if the blaster were under 

it or very close to it (Tr. 182) . He believed that the blaster should be in 

a safe position in a sheltered area so he can jump back where no flying 

material will strike him (Tr. 182). He indicated that his irivestigation 

did not determine where the trucks were located, and as far as he is 

concerned the only safe area within the 500 blast area was under the drill 

rig (Tr. 185). 

Mr. Bondra confirmed that there would be no violation if the blasting 

crew were under the trucks, and while he als·o confirmed that he heard 

Mr. Lucas testify that his crew took cover by or under the trucks, he 

stated that he was not aware where the crew was (Tr. 188). 

·In further response to questions from the bench, Mr. Bondra stated 

as follows (Tr. 193-196): 

Q. You were influenced by the fact that you had some 

testimony by the blaster himself that the debris went 

sailing over his head, right? 

THE WITNESS: Yes. 

Q. You came to the conclusion that these guys were 

in the blasting area and were not safe and were exposed 

to a hazard, right? 

THE WITNESS: In a sense, yes. 

Q. Well, I mean that is a fact, is it not? 

THE WITNESS: Yes. 

Q. Had the fact shown that no debris went as far as 

the scale house and no debris went as far as the blaster,. 

then those two people would not have been in the blast _ 

area, would they have, in your opinion? You would 

not have concluded that in your report? 

THE WITNESS: According to the definition of blasting 

area, no. 

93 
Q. So, the definition of blasting area that you 

applied in this case was directly related to the force of the 

blast and how far the material went, right? 

THE WITNESS: In this case. 

Q. In any case? What I am suggesting to you, sir, 

is that the only way a blaster can guarantee what the 

blasting area is is to blast first to find out how far · 

the deb'ris goes, and then blast again to make sure everybody is out beyond that; is that correct? 

THE WITNESS: No. Would his experience tell him what 

the blast area is? 

Q. Did you hear Mr. Lucas' testimony in this case that 

based on his experience he felt he had his men removed 

from the blasting area; and, later on in his testimony, 

he said that this was an unusual blast? 

THE WITNESS: Was that an opinion? 

Q. Well, do not the regulations put the responsibility 

on the blasting man to determine what a reasonable 

distance is? 

THE WITNESS: Yes. 

Q. I am trying t.o determine what is the blasting area. 

What if the blaster came to you and said, Mr. Inspector, 

I would like you to give me your opinion of what you 

believe the blasting area is. I have 24 holes loaded, 

and we are ready to shoot. Before I shoot, I want to make 

sure I am in compliance with the standard. I need some 

technical advice from you, and I would like you to tell 

me how far I have to remove these guys, my crew, to make sure 

that none of them are hurt by.flying debris. What would 

you tell them, or what would you in a position like this · 

advise him? 

THE WITNESS: I am not really in a position, but the State 

has a ruling of 500 feet, and we have accepted that for a 

long time. 

Q. The State has what? 

THE WITNESS: They have a rule in effect approximately 

500 feet. They have issued that situation, and I think 

-- I don't know how -- like I said, I'm not a state 

inspector. 

94 
Q. The State has some specific standard that has set 

down in some kind of regulatory language what would be 

a safe distance from a blast? 

THE WITNESS: Not in the regulations, I don't think. 

MSHA Inspector Lyle F. Bixler, confirmed that he was at the mine 

on'July 31, 1981, to assist in the accident investigation. He stated 

that he has underground blasting experience, and he indicated that a 

sketch labeled "Iban exhibit 4" fairly depicts the area he observed on 

July 31, except for the presence of a crusher near the stock pile. He 

indicated that the distance from the blast to where the victim was sitting 

was 223 feet, and that the distance from the blast to where the blaster 

was located was 300 feet (Tr. 204-208). 

Mr. Bixler confirmed that he issued a citation to the Austin Powder 

Company, exhibit G-2, and he did so because of MSHA '.s policy to serve 

both the contractor and mine operator when their personnel are involved. 

He believed that Doan Coal Company depended on Austin Powder' to provide 

a service safely. Austin Powder had a continuing presence at the mine 

because "they would be there pretty much of the time" on six or seven 

blasting jobs for Doan Coal (Tr. 212). 

Mr. Bixler confirmed that he issued the citation to Austin Powder 

because the blasting crew was not out of the ·blasting area, and he determined 

this fact "because of the flyrock an_d debris that fell around the blasting 

area". He also stated that he did not know whether it was· unusual for 

a blaster to be within 300 feet of a shot area, and he "gyessed'~. thaj: 

the size of the explosive shot and the terrain would have a bearing on 

this question (Tr. 214). He believed that the citation was very serious 

in that more people could have been killed or injured, and he also believed 

the citation was "significant and substantial" because it was likely 

that serious injuries could have occurred because of the flying debris 

and rock that fell around the blaster (TR. 216). 

Mr. Bixler stated that he considered Mr. Lucas to be an employee 

of Austin Powder, and he believed that Austin Powder was negligent for 

not removing the blaster and his crew from the blasting area. He confirmed 

that he filled out an "inspector's statement", and that he indicated that 

he stated that Austin Powder, as the "operator", was responsible for the blast: 

and for clearing the area. As the employer of the blaster, he considered 

that Austin Powder was responsible for the blaster's actions. He also 

believed that three or four people were exposed to a hazard, namely, 

the blasting crew, the blaster himself, and the people in the scale 

house (Tr. 219-221). 

Mr. Bixler also confirmed that he issued a second citation to Austin 

Powder on August 6, 1981, for a separate violation of section 77.1303(h), 

namely, that portion that requires an ample warning to be given before 

any blast (Tr~ 222). He made the determination that no ample warning 

was given on the basis of statements made by persons during his investigation. 

95 
Those statements indicated that the actual warning signals which were 

given were different from those posted on a sign ori the mine road. He 

did not believe· that three 2 - second blasts within a minute or less gives 

any one ample time to get to a safe area, but that following the warnings 

shown on the sign would have (Tr. 223). 

Mr. Bixler stated that during his investigation Mr. Bloom stated 

that he motioned the accident victim that a shot was going to be fired, 

but that he (Bixler) did not follow up and ask Mr. Bloom what he meant 

by his motions to the victim (Tr. 224). Mr. Bixler also concluded that 

since the victim was only 223 feet from the blasting location, "he probably 

wasn't warned" (Tr. 225). Mr. Bixler believed that the blaster was negligent 

in not following the posted warning sign (Tr. 228). 

On cross-examination, Mr. Bixler confirmed that most of the findings 

made in MSHA's accident investigation report were made by Inspector Bondra, 

and that he (Bixler) assisted in the making of the measurements reflected 

in the report (Tr. 228). Mr. Bixler conceded that at the time he issued. 

the citation to Austin Powder, he did not take into account Mr. Lucas' 

assertion that he believed 300 feet to be a safe distance from the blast. 

Mr. Bixler also stated that he could not recall discussing this with 

Mr. Lucas, and that he did not take into account any geological or 

atmospheric conditions which may have been considered by Mr. Lucas prior 

to the blast (Tr. 231). Mr. Bixler also conceded that Mr. Lucas did 

have the safety of his crew in mind prior to the blast, but probably did 

not anticipate the actual force of the bl~st (Tr. 234). 

In response to further·cross-examination, Mr. Bixler confirmed 

that he is not a blaster and has never held a blaster's lincense. He 

also indicated that he has never done any surface blasting, is not a 

blasting expert, and that in the event he has need for information concerning 

blasting techniques or procedures he would have to consult a blasting 

expert (Tr. 236). In this case, he indicated that he spoke with 

Austin Powder's licensed blasting technical representative Ray Thrush, 

but he was not aware of the fact that Mr. Thrush holds a certificate 

from MSHA qualifying him to train other blasters. He could not recall 

Mr. Thrush telling him that Mr. Lucas acted in a normal and prudent 

manner at the time of the blast in question, nor could he recall Mr. Lucas 

and Mr. Thrush advising him that the particular flyrock shot in Mr. Lucas' 

direction could not have been anticipated (Tr. 237). 

Mr. Bixler identified a copy of his "inspector's statement" which 

he filled out on July 31, 1981, with respect to citation no. 1041342, 

(exhibit AP-8). He confirmed that he nmrked the first block under 

the heading "negligence" to show that the condition or practice cited 

"could not have been known or predicted, or occurred due to circumstances 

beyond the operator's control". He also confirmed that he explained this 

under the "remarks" column of the form where he indicated that "the 

blaster notified all persons of the impending blast about 10 minutes before 

96 
blasting and again half to one minute·prior to blasting. Blast holes 

do not normally blow out". He explained the last remark a.s "that meant 

that it was not anticipated or capable of being anticipated that this 

blast hole would blow out and send fly rock back that far away from the 

front of the face" (Tr. 238-240). 

Mr. Bixler confirmed that when he submitted his inspector's statement 

of July 31, 1981, it was returned to him by his supervisor who advised 

him that the form had been returned by someone in the "Washington Solicitor's 

Office" who advised his supervisor that he (Bixler) could not conclude 

that Austin Powder was not negligent (Tr. 242). Mr. Bixler did not know 

the identity of the solicitor, and on the basis of instructions received 

from his own supervisor, Mr. Bixler prepared another form stating that 

Austin Powder was negligent (exhibit ALJ-1), and that form was resubmitted 

on November 16, 1981. He reached his "new" opinion that Austin Powder 

should have cleared everyone from the area on the basis of his observations 

on how far the flyrock went after the occurrence (Tr. 243; 257-261). 

Mr. Bixler stated that he did not have the technical background or 

expertise to question Mr. Lucas' judgment that he believed he was at a 

safe distance prior to the blast (Tr. 244). Mr. Bixler believed that the 

drill rig at the blast area was a "safe area" if men were under or in 

it (Tr. 244). He also believed that the blaster "should be at least close 

enough to it that in the event he needs to get under it, he could" (Tr. 244). 

In the instant case, he believed that Mr. Lucas "should have been closer 

to the drilling rig", and did not think that he could have gotten under 

it from a distance of 25 or 30 feet. Mr. Bixler also stated that Mr. Lucas 

probably thought he was at a safe distance, and when asked what'"advi-te he 

would give someone who may ask him how far back from a blast would be "safe", 

he replied "on the side of safety; and, from what we found out here, I 

would say at least 500 feet. That's a rough guideline" (Tr. 245-246). 

However, he also stated as follows (Tr. 246): 

Q. You would say that in very instance blasters 

should be at least 500 feet? 

A. Not necessarily, no. 

Q. It could vary depending upon a number of factors? 

A. Son1etimes 500 feet, it wouldn't be enough. 

Q. Other times it would be more than enough? 

A. That's right. 

Q.· And you really do not have the technical expertise 

or background to give advice to someone on whether he 

would be in violation of the law or whether he would 

be safe at a certain distance? 

97 
A. ·That's why I would go on the side of safety. 

Q. Because you really do not know enough about 

blasting techniques and safety factors to know how 

far back would be safe under particular factual 

circumstances? 

A. Under normal conditions, yes, but under extreme 

conditions, no. 

With regard to his conclusions that an adequate blast warning was 

not given to employees in this case, Mr. Bixler testified as follows 

(Tr. 247-250): 

Q. The purpose of this statute is to make sure 

that those employees who were in the area would be 

given a sufficient opportunity to go to a safe place; 

isn't that correct? 

A. That's correct. 

Q. And any warning device which is understood by the 

blaster and the other employees and which provides that 

type of notice would be adequate under the statute, 

would it not? 

A. Would you re£~at that again, please? 

Q. Any warning, technique or procedure which is understood by the blaster and by the employees on the premises 

and which gives the employees that notice so that they can 

go to a safe area would be sufficient under the statute, 

would it not? 

A. In this case, it was posted, and I would think that 

the signal given could be misleading. 

Q. But do you know whether or not Mr. Alvatrona relied 

upon the sign? 

A. That I couldn't say. 

Q. You have no way of knowing that one way or the other? 

A. No. 

Q. You have no way of knowing what Mr. Alvatrona understood by the motion from Mr. Bloom?~ 

A. I have no way of knowing that either. 

98 
Q. · And you did not follow up with Mr. Bloom and ask 

him what that motion meant and whether based upon his 

working relationship with Mr. Alvatrona he could testify 

to what Mr. Alvatrona understood the motion to mean? 

A. Mr. Bloom stated that he motioned Mr. Alvatrona to 

shut down. 

Q. You were satisfied at that point that those employees 

at Doan understood that motion to mean he was supposed to 

shut down because the blast was going to take place? 

A. Yes. 

Q. That is why you did not feel it necessary to ask 

Mr. Bloom any further questions about the motion and the 

meaning of the motion? 

A. That's right. 

Q. And any warning device or procedure or technique 

which furnishes an employee with the information the 

blast is about to take place and sufficient time to find 

a safe haven does satisfy the statues, does it not? 

A. I would say so, yes. 

Q. And certainly direct personal knowledge to an 

employee given to him either over the radio or in person 

would be sufficient notice? 

A. Probably would be, yes. 

Q. You do not have any factual basis for any opinion 

on whether Mr. Alvatrona would be alive today under 

any different hypothetical circumstances with regard 

to notice of hypothetical conduct on the part of anyone 

else who was on that property, do you? 

A. Would you repeat that, please. 

Q. Surely. Do you have any factual basis for drawing 

any conclusion as to whether Mr. Alvatrona would be 

alive today based on any hypothetical actions or conduct 

by anyone else who was on the Doan Coal Company property 

on that day in July of 1981? 

A. That I wouldn't know. 

Q. It is complete speculation? 

A. That's right. 

99 
Testimony and evidence adduced by Respondent Doan Coal Company 

Albert Bloom, testified that he is employed by Doan Coal Company as 

a loader operator and was so employed on the day of the accident. He 

confirmed that he and the victim Dennis Alvatrona were co-workers and 

on the day of the accident Mr. Alvatrona was operating the crusher near 

the coal stock pile and Mr. Bloom was operating a loader. Mr. Bloom 

stated that ten minutes before the blast he received notice of this over 

the company radio.installed in his loader. He was called by the dragline 

operator, and told.to shut the equipment down. Since the crusher had no 

radio he motioned and signaled Mr. Alvatrona to shut the crusher down. 

The hand signal he used is a standard procedure which everyone understands. 

He had used them before and he believed Mr. Alvatrona understood them 

and he shut the crusher down. After he shut down, Mr. Bloom observed 

Mr. Alvatrona heading in the direction of the scale house, and he indicated 

that he habitually spent most of his time there (Tr. 272~279). 

Mr. Bloom st~ted that it was company policy to warn employees of 

impending blasts personally or over the radio. He confirmed that he heard 

three airhorn blasts immediately before the blast on the day in question, 

but it was his view that such warning sounds cannot be heard over the 

noise of back-up alarms and loaders (Tr. 281). 

On cross-examination, Mr. Bloom stated that he never saw Mr. Alvatrona 

or any other employees inside the blast area prior to the blast. He had 

no idea as to why anyone would walk into a blast area "unless it fascinated 

you to watch it" (Tr. 284). Mr. Bloom stated that no barrier was on the 

road coming onto mine prope·rty, that he had never ·seen such a barrie·r 

in the past, and he did not believe it possible that Mr. Alvatrona was 

serving as a guard the day of the blast (Tr. 286). He confirmed that 

five to seven minutes, and at most 10 minutes, elapsed between the.time 

he received the radio information about the blast and the actual blast 

(Tr. 286). He confirmed that the "blow out" surprised him because there 

was more fly rock than usual. He had no contact with the blaster prior 

to the shot, and when he saw Mr. Martz driving into the area he stopped 

him and told him to shut his truck down by means of a hand signal, and 

this was before the warning signals were sounded (Tr. 288) • 

. In response to further questions, Mr. Bloom stated that he stayed 

inside his loader where it was parked and that he.did not consider himself 

to be in "danger. Since he saw Mr. Alvatrona heading for the scale house 

he assumed that is where he was going and did not speak to him further 

(Tr. 291). He believed he was safe, and if he observed fly rock going 

over him after the blast, he would not stay in the same location the 

next time a blast was fired (Tr. 293). Other similar shots had been 

fired the same day of the accident (Tr. 294). He had never known 

Mr. Alvatrona to go and observe shots in the past, and he did not know 

what he was doing the day he was killed since "after he got passed a 

a certain point I couldn't see him" (Tr. 296). 

100 
Mr. Bloom confirmed that it was normal procedure to shut down all 

equipment as soon as notice of a blast is received, and if others around 

him did not have radios, he would notify them personally (Tr. 300). 

He also confirmed that he determined the safe blasting area for himself, 

no supervisor told him what it was, and he did not know how much explosives 

were going to be set off since he did not speak with the blaster (Tr. 301). 

Alvin Mitchell, testified that he is an engineer and safety director 

for Doan Coal Company, and was so employed at the time of the accident. 

He confirmed that the company has a qualified training program, that he is 

in charge of it and is certified to conduct training, and that he trained 

Mr. Alvatrona. He identified exhibit R-1 as a copy of Mr. Alvatrona's 

training certificate, and indicated that he was trained in hazards 

identification as well as in the use and danger of explosives (Tr. 312). 

Mr. Mitchell testified as to the company's blasting signal policy and 

procedure, and confirmed that there are 33 mobile radio units at the 

mine on most of the equipment. He also confirmed that he was present 

during the accident investigation, and stated that the distance from the 

shot area to where Mr. Alvatron~'s body was found was 260 feet, and he 

indicated the normal route he would have taken to get to the scale house 

from the stock pile area. 

Mr. Mitchell confirmed that the location of the blast where the drill 

holes were at was at the edge of the pit and that Mr. Alvatrona would 

have no reason to be in the area where he was found (Tr. 319). Mr. Mitchell 

stated that part of Mr. Alvatrona's training included pro'cedures concerning 

the shutting down of equipment and blasting signals (Tr. 322). Mr. Mitchell 

also indicated that the procedure followed by Mr. Bloom in notifying~· 

Mr. Alvatrona about the blast, as well as the mirte procedure for notifying 

other employees was normal and no different from any other day (Tr. 323). 

Mr. Mitchell identified several photographs depicting the spoil pile 

where it is believed Mr. Alvatrona was sitting at the time of the blast, 

and the general scale house area (Tr. 323-328; exhibits AP-1 through AP-7). 

Mr. Mitchell testified that he was at the blast scene after the 

accident, and in his opinion had Mr. Lucas been looking in the direction 

of the spoil pile he could have seen Mr. Alvatrona (Tr. 333). M~. Mitchell 

identified exhibit G-7(k) as a photograph of a typical blasting signal 

sign posted at the entrance to the mine property, but could not say whether. 

that particular sign was posted on the day of the blast. However, he did 

indicate that a similar sign was posted, and that the men are instructed 

to listen for the signals depicted on the sign (Tr. 334). He did not know 

whether the mine road is normally barricaded because he is not at the ' 

mine when blasting takes place (Tr. 335). Mr. Mitchell stated further 

that the spoil pile was 13 to 14 feet high, and that Mr. Alvatrona's 

work would not require his presence there (Tr. 338). 

Mr. Mitchell considered the seal house, the drill truck, and the loader 

and crusher to be suitable blasting shelters (Tr. 343). Mr. Mitchell 

conceded that Mr. Lucas may not have followed the literal blasting 

101 
warning signals shown on the sign posted on mine property, and he explained 

this by statin~ that Austin Powder's personnel are not trained at the same 

time as Doan's employees (Tr. 357). Mr. Mitchell stated that on the 

particular shot in question, a distance of 200 feet would probably not be 

a safe distance, and had he known that 24 holes were loaded with 400 

pounds of explosives that he would have ordered men to be removed 200 

feet since there was a chance that flyrock would reach that distance. 

However, the blaster was 300 feet away and he believed this was safe 

(Tr. 362). 

David G. Doan, testified that he is the managing owner of Doan Coal 

Company and that he has been in the coal business since 1944. Mr. Doan 

stated that all mine equipment except for bulldozers are equipped with 

radios and that everyone on the site is given actual notice, either 

personally or by radio, before a blast is fired. Everyone on the site is 

notified to shut down and await the shot regardless of how far away from 

the actual blast they are located. Mr. Doan confirmed that he is 

experienced in the use of explosives, and as far as he is concerned the 

use of air horns is not effective because of the roar of the equipment 

and that is why mine procedure calls for the shut down of all equipment 

before a blast and personal notification given to all employees (Tr. 365-

371). 

Mr. Doan stated that the scale house was a secure area and that 

"there is no way that a rock could go through the scale house" (Tr. 372). 

He also indicated that the crusher is made of structural steel and would 

make "a wonderful shelter" (Tr. 372), and that since he has been in j:he 

coal business he has never-had any problems with notifying employee~ and 

clearning out blast areas. He confirmed that the accident in question 

was his first fatality, and that there have never been any explosive 

related injuries at the site since he has been in busine~s (Tr. 373-374). 

With regard to the signals given and the definition of "blast area", 

Mr. Doan testified as follows (Tr. 376-377): 

Q. Mr. Doan, you mentioned that the victim was 

personally told that there was going to be a blast. 

A. Well, he was personally notified with the signals. 

Q. There is a distinction between personally told 

and personally signaled; would you not agree? 

A. Well, that depends on how fine a little thin .line 

you want to ·draw. He personally understood the signals 

because he had been taking. them and giving them up 

until then. It was nothing new that he got. The signals 

that he got that day were the same as he always got. 

Q .. Do you mean he never got them before on the radio? 

102 
A. If he was at a machine with a radio he got them. 

If not, he got them from Mr. Bloom, his buddy that he 

worked with. Because Mr. Bloom always had a radio 

where he was. 

Q. You heard the safety director testify or state 

that he believed that the victim at .the time of the 

blast was in the blast area. Would you agree with that? 

A. No. It has not been defined to me yet where the 

blast area is. I have sat in this Court for two days 

now. I haven't heard anybody define the blast area. It 

seems that the blast area, according to MSHA, is anyplace 

a man can get hurt. There doesn't seem to be any regulation 

to it that I can understand from what I have listened to. 

Austin Powder Company's Testimony 

Jeffrey A. Lucas confirmed that he is a licensed blaster and holds 

a college B.S. degree in mathematics. He stated that the warning signals 

used before and during the blast in question consisted of radio contacts 

ten to fifteen minutes before the blast and three signals immediately 

prior to the blast, and no one ever requested that this be changed. To 

his knowledge he has never known of any Doan employee to ignore the signals, 

and he had no reason to believe that anyone did not understand them. 

He believed he was in a safe location on the day of the incident, that 

the shot was laid out to go away from where he and the crew were located, 

and that he had previously made five to six previous shota at that le>cation 

(Tr. 400, 412). There were no blowouts from the previous shots, and had 

the one in question gone the same as the others no one would.have been 

in danger 100 feet from the shot. There was nothing unsual about the size 

of the shot in question, and in relation to the others they were all the 

same, including the amount of explosive used (Tr. 402). 

Mr. Lucas stat.ed that he believed his crew was in a safe location 

and he also believed that the scale house was safe because it was further 

from him and away from the shot location. He confirmed that he was looking 

at the blast area and he indicated that he prefers not to be under a truck 

because he wants to view the blast and can always move away from any 

flyrock. On the day in question, he never expected the flyrock to come 

as far as it did and he was not aware that anyone was on the spoil bank 

and saw no one in the area that he considered to be the blast area (Tr. 408). 

After the incident, MSHA suggested to him that he move further back, seek 

some sort of protection, and suggested a 500 foot distance as a guideline. 

He personatly would not like to be 500 feet from a shot and would prefer 

to be somewhere where he can see it (Tr. 409). 

Mr. Lucas testified that from where he was standing at the time the 

bla.st was set off he was unable to see the crusher because it was behind 

the coal stock pile and there was line of trees in the area. He personally 

103 
did not walk to the crusher area, but he sent the truck driver to notify 

anyone in the area and he believed the.area was a safe area (Tr. 415). 

Mr. Lucas ident·ified a copy of exhibit G-8 as a· company blast report 

which he filled out immediately following the shot, and he confirmed that. 

He concluded the scale house as a "possible hazard" on the form. He 

explained that this was done because the State requires buildings and 

houses to be identified on the form (Tr. 420). 

Mr. Lucas explained the characteristics of a "blowout", and he 

confirmed that he checked all of the holes for potential signs of such 

an incident. He explained the wiring and detonation of the shot, and he 

confirmed that since the accident he has changed his signaling procedure 

to comply with the blast warning sign which is on the property, but that 

the radio signal system is also being used (Tr. 441-446). 

Ray Thrush, testified that he has been employed with Austin Powder 

for approximately eleven years as a sales and technical representative. 

He confirmed that he has been a licensed blaster since 1967 and is licensed 

in the States of Pennsylvania, Maryland, and West Virginia. He also 

indicated that he is an MSHA certified surface and underground blasting 

instructor. Mr. Thrush confirmed that he has been going to Doan Coal's 

property since 1971, and prior to his employment with Austin Powder he 

was on the site doing blasting work with the National Powder Company. 

He also indicated that prior to July 30, 1981, and before radios were 

obtained, the warning signals which were used were "personal contact with 

all machinery". Since that time radio contact is used, and the threeblasts on an air horn was also used as a signal within the past several 

years and before July 30, 1981 (Tr. 454-458). 

Mr. Thrush confirmed that he was at the mine the day after the accident 

during the investigation and was familiar with where Mr. Lucas was 

positioned at the time of the blast. In his opinion, Mr. Lucas was at 

a safe distance, and he indicated that based on the number of holes and 

the amount of the powder used, he could have been 100 feet closer and 

still been safe. Mr. Thrush described the 24 charged holes as a "small 

one", and he also indicated that as a blaster: 'he would like to be positioned 

so that he can observe a shot. He also indicated that during his conversation 

with Inspector Bixler, Mr. Bixler indicated to him that he could not find 

anyghing wrong with what Mr. Lucas had done (Tr. 458-462). 

Hr. Thrush indicated that he wa's present when MSHA Inspector Zangary 

terminated the citation and he indicated that he did so by coming to the 

mine to observe the manner in which another shot was fired. The shot was 

in ·front of the spoil pile and the crew and the inspector were by an old 

equipment trailer when the blast was fired. _Inspector Zangary indicated 

that this was sufficient coverage. However,.'the shct could not be seen, 

and after the blast two boys on trailbikes came out >f the nearby woods, 

and Mr. Thrush stated that when he asked Mr. Zangary how he would characterize 

the event if the boys had ventured into the shot area and been killed, 

Mr. Zangary replied that it would have an "accident" (Tr. 464). 

104 
Mr. Thrush confirmed that Mr. Lucas was not reprimanded or disciplined 

by Austin Powder and he stated that had he been there he would have acted 

just as Mr. Lucas did in firing off the shot (Tr. 469-470). Mr. Thrush 

believed that the "sphere of danger" on the day of the accident was about 

200 feet from the blast site, and that wo~ld be the area he would have 

been concerned about keeping secured (Tr. 471). Mr. Thrush confirmed 

that he has had some 30 years experience working in coal mines and gas 

fields "shooting gas and oil wells and stripping" (Tr. 472). 

The Jurisdictional Question 

Apart from any factual disputes concerning the alleged violations, 

there is no jurisdictional dispute between MSHA and the respondent Doan 

Coal Company. Doan Coal is a Pennsylvania strip mine operator and it 

concedes that its mining operations are subject to the Act and to MSHA's 

enforcement jurisdiction. The jurisdictional dispute in this case is 

between MSHA and the respondent Austin Powde'r Company. 

The Nature of Austin Powder's Business 

·In its posthearing brief, Austin Powder states that it is a manμfacturer 

and supplier of explosives to a number of different industries, including 

the coal mine industry (Tr. 466, 507). To ensure the safe use of its 

products and safety of both its customers and the general public, Austin 

Powder, at no charge, provides technical expertise and advice to those 

customers who desire such assistance (Tr. 465, 476). As one component 

of the assistance which is available to the customer, Austin Powder has 

licensed blasters who may be loaned to a customer upon request,··but-" 

Austin Powder is not obligated to provide a blaster to a customer, nor 

is there any guarantee that at any particular time a blaster will be 

available (Tr. 508). Austin Powder maintains that this situation must 

be contrasted with that of a contract blaster who enters into a contract 

with an individual to perform blasting services. In such arrangements, 

the contract blaster is contractually obligated to provide blasting 

services and is paid for such services. In contrast, there is no 

obligation whatsoever upon Austin Powder to provide blasting services 

for customers, and if a blaster is made available no charge is paid for 

such service (Tr. 465-466). 

Austin Powder maintains that in instances where a customer desires 

to utilize Austin Powder's technical expertise, the parties enter into 

a service agreement. Under the agreement, Austin Powder agrees to lend 

the customer the temporary use of Austin Powder's employees and equipment 

free of charge (Tr. 465, 476). In return, Austin Powder states that 

the customer agrees that while it is using such employees and equipment, 

the employees are under the sole supervision and control of the customer 

and that all work and services performed by such individuals are at the 

sole risk and responsibility of the customer. 

Austin Powder states that on January 19, 1981, it entered into a 

service agreement with the respondent Doan Coal (A.P. Exh. No. 11). 

105 
Doan Coal would periodically order explosives from Austin Powder and 

would utilize Austin Powder's technical expertise to detonate th~ 

explosives it purchased from Austin Powder. However, Austin Powder 

asserts that Doan Coal determined the number o.f holes to be drilled, 

the location of the holes, and the holes' depth, and the coal company 

drilled all the holes (Tr. 340-342, 366, 410-411). Moreover, Doan Coal 

decided when to plast and had the right to control the details of the 

blast (Tr. 410-411). 

Whether Austin Powder is an "Operator" within the Meaning of the Act 

Austin Powder maintains that before MSHA can assert jurisdiction 

in this matter it must: establish that Austin Powder is an "operator" 

within the meaning of 30 U.S.C. 802(d). Austin Powder states that it 

is abundantly clear, and that MSHA has conceded.as much, that Austin 

Powder does not own, lease, operate, control or supervise a coal mine. 

Although MSHA does allege that Austin Powder was an independent contractor 

performing blasting services for Doal Coal. on the day in question and as 

such was subject to MSHA's jurisdiction, Austin Powder asserts that 

MSHA's position is wholly untenable because the clear evidence establishes 

Austin Powder was not an independent contractor performing blasting services. 

Austin Powder argues that before it can be found to be an independent 

contractor under the Act, MSHA must establish the existence o.f a contract 

between Austin Powder and Doan Coal whereby Austin Powder contracted to 

provide services for Doan Coal. Austin Powder maintains that MSHA has 

failed to introduce any evidence t~at such a contract existed. In fact, 

it states that MSHA has not-· even tried to establish the existence- of such 

a contract. 

Austin Powder maintains that it is not, and was not a contract blaster, 

has no drilling capacity, and does not contract blasting services. Rather, 

it is a manufacture·r and supplier of explosives to numerous industries, 

including the coal industry, and that it entered into a sales agreement 

with Doan Coal in which Doan Coal purchased a quantity of explo~ives. 

To ensure the.safe use of its products, Austin Powder, pursuant to a 

service agreement voluntarily entered into ·by the parties, allowed Doan 

Coal to draw upon its technical expertise to assist in detonating the 

explosives. The agreement is a legally binding, valid document whereby 

Austin Powder loaned Doal Coai its employees for Doan Coal's use. Citing: 

New River Crushed Stone v. Austin Powder, 210 S.E.2d 285 (N.C. 1974); 

Fralin v. l\merican Cyanamid Co., 239 F. Supp. 178 (W.D. Va. 1965); Oregon 

Portland Cement Co. v. DuPont, 118 F. Supp. 603 (D. Ore. 1953); Hercules 

Powder Co. v. Campbell & Sons Co., 144 At!. 510 (Md. App. 1929). No charge 

was made for this technical expertise (A.P. Exh. No. 11; Tr. 466, 512). 

Moreover, Austin Powder states that it had no obligation under the service 

agreement to provide such technical service, and if its people were not 

available, Doan Coal could not require that Austin Powder furnish blasters. 

In short, Austin· Powder maintains that the loaning of its employees to 

Doan Coal to ensure safe use of its product was a gratuity and not required 

by contract. 

106 
Austin Powder. concludes that since the record is absolutely void 

of any evidence even suggesting the existence of an implied or express 

contract between Austin Powder and Doan Coal requiring the provision of 

services, MSHA has failed to establish Austin Powder was an independent 

contractor as defined by the Act. Since Austin Powder does not otherwise 

fall within the Act's definition of "operator," it maintains that it 

was not subject to MSHA's jurisdiction. 

Austin Powder argues that on the facts of this case, those individuals 

who allegedly conunitted the cited violations were, as a matter of law, 

Doan Coal Company employees, and not employees of Austin Powder. In support 

of this argument, Austin Powder argues that the express terms of the service 

agreement clearly and unambiguously state that while the Blaster Lucas 

and his crew were on Doan Coal property they were for all intents and 

purposes Doan Coal employees. Doan Coal had the sole right to supervise 

and control the activities of Lucas and his crew, and Doan Coal performed 

all the drilling and decided how many holes to drill, the depth of the 

holes and the location of the holes (Tr. 410). Doan Coal had the right 

to supervise the details of the blasters' work and when a question arose, 

the blaster looked to Doan Coal for direction (Tr. 411). 

Austin Powder asserts further that Courts have long held that the 

paramount consideration in determining whether an independent contractor or 

an employer-employee relationship exists is who has the r'ight to control 

and supe!vise the details of the work activity. See ~Joint Council 

of Teamsters No. 42 v. N.L.R.B.,. 450 F.2d 1322 (D.C. Cir. 1971); Assoc. 

Independent Owner-Operators, Inc. v. N.L.R.B., 407 F.2d 1383 (9th Cir. 1969). 

In this case, given the service agreement's clear languag~ and the a~tual 

uncontradicted testimony of the witnesses, Austin Powder concludes that 

it is clear .that Lucas and his crew were., as a matter of law, Doan Coal 

employees and accordingly, Austin Powder cannot be held subject to 

MSHA's jurisdiction. 

Finally, Austin Powder maintains that MSHA's latest policy memorandum 

concerning the identification of independent contractors under the Act 

makes it clear that Austin.Powder falls outside the scope of an "operator" 

as defined by the Act. Under this memorandum, before a company will be 

considered an independent contractor for the purposes of the Act, it must, 

inter alia, perform both drilling and blasting services, the precise services 

which a contract blaster provides. Austin Powder notes that it is significant 

that MSHA chose the conjunctive in this subsection, but in all other , 

subsections where more than one factor was listed chose the disjunctive, 

thereby clearly intending to include the definition of an independent 

contractor only to those companies which provide both drilling and blasting 

services. Since it is not a contract blaster, Austin Powder concludes 

that it falls outside of MSHA's own criteria for determining whether an 

individual is an independent contractor and is not subject to MSHA's 

jurisdiction. 

107 
MSHA' s Arguments 

In its po~thearing brief, MSHA denies Austin Powder's assertion 

that the its service agreement with Doan Coal somehow transforms blaster 

Jeffrey Lucas into an employee of Doan Coal under Doan's direct control 

and supervision. MSHA maintains that the evidence in this case supports 

the opposite conclusion. Namely, that the blaster, Jeffrey Lucas, was 

a full time employee of Austin Powder, whose services were paid for by 

Austin Powder as part of the price from selling explosives to mining 

companies. 

MSHA argues that as a private business, Austin Powder has a right 

to conduct its business in a.manner which it finds the most convenient 

in accordance with general industry practice, and that MSHA has no 

objection to "service contracts" per se, between companies providing 

services to coal mining companies, like Doan Coal. However, MSHA 

maintains that it should be obvious that the Secretary of Labor and 

the Federal Mine Safety and Health Review Commission are not bound 

to accept, on face value, the so called "gratuitous nature" of a 

service contract, especially if its intended purpose is to limit liability 

which would otherwise be imposed under the Act. MSHA asserts that to 

follow Austin Powder's viewpoints with regard to its attempt to award 

liability in this matter.would amount to a total disregard of the 

Congressional intent expressed in the·l977 Mine Act, of placing liability 

for violations according to actual conduct. 

MSHA maintains that a review of the service contract entered into 

between Austin Powder and Doan Coal indicates that it has little to do -· .. .._,,,. .. ·· 

with any actual services performed by Austin Powder, and that it is 

merely an indemnification agreement which Austin Powder requires its 

customers to sign prior to allowing them to use its blast.ing services. 

MSHA states that the customer is really not given any choice and is 

required to assume all the risks and· responsibilities inherent in an 

extremely dangerous occupation. 

MSHA points to the fact that Jeffrey Lucas, the blaster, testified 

that he considered himself a full time employee of Austin Powder, was 

never told anything to the contrary, believed that he was in charge of 

the blasting area, and acknowledged that it was up to him to make sure 

that everyone in the blasting zone was notified (Tr. 29). It was his 

function to check the wiring for the explosives prior to the blast and 

notify members of his crew when to give the signal that a blast was going 

to occur, after he checked the pit area visually. 

MSHA also points out that Mr. Lucas' presence at the Doan Strip Mine 

was long term and continuous, and that Mr. Lucas testified that at least 

50% of his blasting work was at the Doan Strip Mine and he was generally 

on the property four to five times a week for up to five hours a day. 

Also, Mr. Lucas usually brought a crew of men with him to assist them. 

with the blasting operations and proceeded directly to the pit area 

without waiting for any instructions from the supervisory personnel 

employed by Doan Coal. Under the circumstances, MSHA submits that 

108 
Austin Powderis argument that blaster Lucas was under the direct 

control of Doan Coal is totally without merit and should be rejected. 

In addition, MSHA submits that Austin Powder's attempt to limit its 

liabilities and responsibilities under the Mine Act is against public 

policy. Recognizing that private parties can contract between themselves 

to limit their respective liabilities to each other, MSHA asserts that 

the courts have frowned on attempts by private parties to limit their 

public duties under Federal law and generally will not enforce ageeements 

of that nature. MSHA concludes that companies like Austin Powder who 

perform vital services for mining companies on mine property have specific 

responsibilities and liabilities under the 1977 Mine Act, and that their 

statutory obligations cannot be contrac~ed away or limited since the 

duty to the public is paramount. Citing: Southwestern Sugar and Molgasses 

Company, Inc. v. River Terminals Corporation, 360 U.S. 411 (1959), 

Headnote 9, Northwest Airlines, Inc. v. Alaska Airlines, Inc., 351 

F.2d 253 (1965), and Conco, Inc. v. Andrews Van Lines, Inc., 526 F.Supp. 

720 (1981). 

Findings and Conclusions 

The Jurisdictional Question 

Section 3(d) of the Act defines "operator" as "any owner, lessee, 

or other person who operates, controls, or supervisors a coal or other 

mine or any independent contractor performing services or construction 

at such mine;". (emphasis added) • 

Section. 3(g) defines "miner" as "any individual working in a coal 

or other mine''., and section 3(h) (1) defines "coal or other ·mine" as 

including, inter alis, "lands, excavati·ons, structures, facilities, 

equipment, machines, tools, or other property * * used in, or to be used 

in * * * the work of extracting such minerals from their natural deposits 

* * *" 

The legislative history of the Act clearly contemplates that 

jurisdictional doubts be resolved in favor of Mine Act jurisdiction. The 

report of the Senate Committee on Human Resources states: 

The Committee notes that there may be a need to 

resolve jurisdictional conflicts, but it is the 

Committee's intention that what is considered to be 

a mine and to be regulated under this Act be given 

the broadest possible interpretation, and it is the 

intent of this Committee that doubts be resolved in 

favor of inclusion of a facility within the coverage 

of the Act. 

S. Rep. 95-181, 95th Cong., 1st Sess. (May 16, 1977) at 14: Legislative 

History of the Mine Safety and Health Act, Committee Print at 602 (hereinafter cited as Leg. Hist.). 

109 
Doan Coal's mine engineer and safety director Ray Mitchell testified 

that Doan conducts its own drilling of the blas·t holes, and determines the 

specific locations of the holes, including the depth and diameter of 

the holes. After the drilling is completed, Doan then calls Austin 

Powder to come in and do the actual blasting. If Doan Coal decided not 

to blast on any given day, it would send Austin Powder away and instruct 

them to come back another time. Doan has also used other blasters, 

and if Doan had a preference it may determine the direction that it wishes 

the blast to go. While Doan may prefer that the blast be directed away 

from equipment, the direction of the blast would be left to the blaster 

(Tr. 340-342). Mr. Mitchell .stated that during his three and one-half 

years at the mine Austin Powder conducted 90 percent of the blasting 

which was done at the mine site (Tr. 353). The only thing he is required 

to do insofar as Austin Powder's employees are concerned is to insure 

that they have signed the hazard recognition sheet before they enter the 

mine site (Tr. 355). 

Blaster Jeffrey Lucas confirmed that Doan Coal Company determines 

the number of blast holes to be drilled, as well as the diameter and depth 

of the holes. Doan Coal also determines when the holes are to be loaded 

and then notifies Austin Powder. Should a hole be plugged, Austin Powder 

will attempt to take care of the problem, but "if there is anything out 

of the ordinary Doan Coal will tell us how they want things done" (Tr. 411). 

Mr. Lucas testified that he considered himself to be an employee of 

Austin Powder Company and has never considered himself to be employed 

by Doan Coal (Tr. 416). None of his supervisors have ever advised him to 

the contrary, and he consiq~red the services he was performing aj:,. tge mine 

to be an important part of the mining process. He conceded that he 

was at the Doan site performing a service, but he denied that Doan Coal 

paid for his services. He explained this by stating that Doan buys 

powder from Austin and he makes up the billings for the shots and there 

is no specific charge for his services. He had no knowledge that the 

charges for his services, which are paid for by Austin, are included 

in the price that Doan pays for the powder _which is used (Tr. 418). 

Austin Powder's technical representative Ray Thrush identified 

exhibit AP-11 as the "service agreement" between Austin Powder and Doan 

Coal, and he confirmed that he signed it on behalf of Austin Powder, 

and that it was the only·agreement between the two companies. */ 

He denied that Austin Powder is a' "contract blaster", and he defined 

~/ A copy of the "Service Agreement" is included herein as an 

attachment to this decision, and the docu~ent is incorporated herein by 

reference. 

110 
that term as someone who "goes and shoots for other people" (Tr. 466). 

When asked· to explain the difference between what Austin Powder does 

and what a "contract blaster" would do, he stated "we manufacture and 

sell and we assist the customer in his blasting procedures" (Tr. 466). 

Mr. Thrush indicated the agreement was in effect in the summer of 1981, 

and he indicated that Austin Powder's invoices and price quotations 

to a customer is for the amount of powder used and that there is no 

separate charge for blasting. He could not state for sure whether or 

not other powder manufacturers have similar agreements. 

Mr. Thrush confirmed that the term "blaster" means "the man who 

is in charge of detonating the explosive, securing the area, making sure 

everything is done right", and confirmed that his technical expertise 

is relied upon in firing the shot and removing the overburden. He also 

indicated that as part of the selling of the powder, Austin Powder 

provides its technical experience or advice in detonating the powder 

which it sells, and the electronic detonating devices are owned by Austin 

Powder (Tr. 466-468). He also confirmed that the blaster is responsible 

foe the safety of the blast (Tr. 468). 

Mr. Thrush could not state how much business Austin Powder did with 

Doan Coal in 1981, and he had no knowledge as to any prior business volume 

between the two companies. He indicated that Austin Powder probably 

has no more than ten blasters working in the State of Pennsylvania, and 

that customers are not charged for their services; When asked about the 

cost of trucks and blasting equipment, he answered "the same setup" 

(Tr. 476). When asked whether these costs are passed on to the customer 

as part of the purchase price of the dynamite he replied YI guess" and 

"that is very possible" (Tr. 4 77). 

With regard to the service agreement, Mr. Thrush stated that a new 

one is executed every year, and that it is not done on a job-by-job 

basis. The services performed under the agreement are on a continuing 

basis for a year (Tr. 477). Mr. Thrush indicated that when he worked 

for the National Powder Company, there were no such service agreements 

in effect, but he did not know why "because I was not involved" (Tr. 478). 

Mr. Thrush confirmed that the Austin Powder agreement is signed every 

year on the advice of the company's counsel (Tr. 479). 

Contrary to Mr. Thrush's testimony that his previou~ employer did 

not have- a "service contract" with its customers, Austin Powder's counsel 

asserted that "virtually all" of its competitors have such contracts 

and that "it is an industry practice" (Tr. 512). Counsel also contended 

that when the blaster, Mr. Lucas, goes to Doan Coal's property to perform 

his blasting chores under the service agreement he is Doan Coal Company's 

employee (Tr. 513-514). However, counsel conceded that Austin Powder 

still.pays alJ. of Mr. Lucas' regular benefits, such as health coverage 

for his family (Tr. 514). With regard to the right of Doan Coal to 

supervise Mr. Lucas, Austin Powder's counsel took the position that mine 

operator Doan believed that he may exercise supervision or control over 

111 
anyone that is on his property, and that Mr. Lucas is not an employee 

·of Mr. Doan for lawful purposes until he comes on the property (Tr. 515). 

With .regard to .any supervisory control by mine operator Doan over blaster 

Lucas, counsel stated as follows (Tr. 515-519): 

ADMINISTRATIVE LAW JUDGE KOUTRAS: When he comes on 

the property to do blasting Mr. Doan is not sitting 

there looking over his shoulder as to how he loads 

the ho.les and wires up the shots, is he? 

MR. WALL: I am not aware that he commonly does. 

He could if he wanted to. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Do you mean that 

he could supervise Mr. Lucas in the manner he wires 

up and loads the shots and puts them off? 

MR. WALL: He certainly could. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Why doesn't Mr. Doan 

do the blasting himself? He could save a little bit 

of money. 

MR. WALL: Mr. Doan does not want to do the blasting 

anymore. He has other things to do. He started ·out 

with a small operation. Now he has some ten pits. He 

has a larger operation and has other people doing lots of 

things that he us_ed to do himself. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Mr. Wall, if you know, 

with regard to the activities of Austin Powder, is this a 

connnon arrangement in strip mining in this area to have 

the manufacturer of the explosives do the actual blasting 

for the mine operator? 

MR. WALL: It is not at all unusual, no. I cannot say 

that it is the normal practice in every instance. Be·cause 

I .am not familiar with the practices here. But I know 

that most of the larger manufacturers also have similar 

arrangements. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Again, I am not making 

light of this service agreement. In the section where 

it says Austin Powder Company is not engaged in blasting 

:.,rork. How can one say that Austin Powder is not engaged 

in blasting work when, in fact, they set the wheels in 

motion? They dispatch three people when the call comes. 

Three people, vehicles, equipment and the product come. 

They charge the holes, the blast goes off. Now~ you 

say that is not blasting? Is that blasting work, setting 

the charge and blasting? 

112 
MR. WALL: Certainly. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: That is blasting work? 

MR. WALL: Absolutely. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Under this service 

agreement the blasting work is performed by Doan 

not Austin Powder? 

MR. WALL: That is correct. It is an arrangement which 

is made in our industry as well. It is not uncommon for 

example, for heavy equipment with its operator to be loaned 

to another employer. A crane, for example, could be 

loaned to some particular employer with its operator for 

use during a particular period of time. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Yes, but usually in 

those kinds of arrangements they pay for them, do they not? 

In this case had MSHA opted not to cite Austin Powder as a 

respondent in this case and decided only to go against Doan 

Coal Company and issued the citations only to Doan and sought 

the maximum civil penalties in this case on the theory that 

Mr. Lucas as an employee of Doan Coal Company was negligent 

and, therefore, that negligence is imputed to his employer 

Doan Coal Company. How do you think Mr. Hanak sitting 

next to you would be arguing in that case? 

MR. WALL: I cannot speak to that. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Mr. Hanak, does your client 

realize that this service agreement, when those people and 

equipment come in the Government would consider those people 

to be .his employees from now on? 

MR. HANAK: We have never thought of the impact as far as 

any criminal action like here. 

During the course of the hearing, Austin Powder's counsel indicated 

that the company sells explosives "in about 37 states" (Tr. 507). He 

also indicated that in terms of sales volume, Austin Powder ranks second 

or third in terms of national sales volume, but emphasized the fact that 

there are only "a handfull of explosives manufacturers" (Tr. 507). 

During the hearing, Doan Coal's counsel took the position that in 

the event that it is decided that Austin Powder is not subject to MSHA's 

enforcement jurisdiction and are found not to be liable because of the 

service agreement, this would serve as a basis for immediately imputing 

Austin Powder's liability to Doan Coal simply because of the agreement 

(Tr. 479). Austin Powder's response was that "Austin is not within the 

reach of MSHA's inspectors because they are not in the mining business 

and they are not subject to the act as operators or independent contractors" 

(Tr. 480). 

113 
Austin Powder's counsel agreed that the reason Doan Coal Company 

utilizes Austin Powder's expertise rather than conducting its own 

blasting operations is that Doan Coal would prefer to have "an expert" 

do the job rather than to subject itself to possible citations for 

violations of MSHA's blasting regulations (Tr. 508-509). Austin Powder's 

counsel also conceded that it was not unique for a mine operator to 

utilize experts in the field of drilling or blasting (Tr. 509). In 

summarizing his position concerning the blaster's "independent contractor" 

status in this case, Austin Powder's counsel argued as follows (T'r. 510-512): 

MR. WALL: There are two reasons. One is that under 

the service agreement it is the intention of the 

parties that Mr. Lucas and others be loan servants in 

essence of Doan Coal. Loan servants is a well established 

common law concept. It has been accepted in the industry 

in every state. The normal detriment of the status of the 

particular individual is the intention of the party at the 

time. That intention is clearly explained here in that 

document. The intention of the parties is that Mr. Lucas 

be, for lawful purposes, freed as an employee of Doan 

Coal Company at the time so that Austin Powder as a 

corporate entity would not have liability. 

Mr. Lucas while at Doan Goal Company is under the 

control of Doan Coal Company. When Mr. Lucas is at a 

mine operator's property Austin Powder does not· have 

control over those operations. It does not have insurance for 

those operations;· It does not anticipate having liabi·Hty 

for those operations and seeks to-be protected from that, is 

willing to furnish that service to a customer in exchange 

for the customer's agreement to be responsible.for any 

of the actions and to be responsible for that employee 

while he is on the property. 

The second factor is that· there are very few guidelines 

in the statute for the regulation for what constitutes an 

operator. One goes back to the history of the 1977 

Amendment of the Bituminous Coal Association's argument. 

Because they were upset with construction companies who 

were coming on to their property and committing violations 

for which the mine operators were held responsible. If one 

looks at the limited guideline that is available and that 

limited guid~line is in the regulation. The regulatory 

definition of an operator there is that there is a requirement that there be a contract for services. 

In this instance there is no such contract wherein 

Au~tin Powder is contractually bound to provide any 

services. Hence, within the strict technical means of 

114 
that regulatory definition from MSHA Austin Powder 

is not in the position as a contract driller who 

comes in and for a fee will drill holes. Some companies 

use contract blasters. That is a common practice. 

Some use contract drillers. Some use consultants 

and a variety of things. In each instance normally 

there is a charge for those_people and they come in 

on a contract basis and are paid for· this. This is 

not an arrangement of that type. 

I take note of the fact that MSHA considered Austin Powder as an 

"independent contractor" subject to the Act, and in fact assigned Austin 

Powder a contractor Identification Number. While the assignment of such 

an identification number does not ipso factor bestow "contractor" status 

on any company, I find nothing in the record to suggest that Austin 

Powder has protested MSHA's characterization of its ~ctivities in this 

regard. MSHA's Independent Contractor regulations found in Part 45, 

Title 30, Code of Federal Regulations, section 45.1 et~-, defines 

an "independent contractor" as follows at section 45.2(c): 

"Independent Contractor" means any person, 

partnership, corporation, subsidiary of a corporation, firm, association or other organization that contracts to perform services or 

construction at a mine; * * * 

Although Part 41, of the regulations dealing with the application 

of the requirements of section 109(d) of the Act that mine operators-· 

submit certain "legal identity" information to MSHA does not apparently 

cover "independent contractors", Part 45 does. Further, other regulatory 

requirements such as those found in Parts 48 and 50, Title 30, Code of 

Federal Regulations, require contractors to comply with certain training 

and recordkeeping requirements of the law. As a matter of fact, in this 

case Austin Powder's technical representative Ray Thrusy is an MSHA 

certified blasting instructor, and the blaster Lucas testified that he 

regularly performed blasting at Dean's mine. This being the case, I 

assume that Mr. Lucas is "MSHA certified" to perform the duties required 

by blaster's under Part 77, Title 30, Code of Federal Regulations, and that 

Mr. Thrush also has_ MSHA's stamp of approval to train blaster's in 

accordance with MSHA's requirements. 

In addition to the foregoing, I take note of the fact that in response· 

to my Order directing MSHA to submit any evidence concerning Austin Powder's 

history of prior violations, MSHA submitted a copy of a Decision and Order 

by Judge Kennedy on November 26, 1980, approving a settlement between 

Austin Powder and MSHA providing for the payment of $20,000, for five 

violations served on Austin Powder in 1979 for five violations of several 

mandatory blasting standards found in Part.56, Title 30, Code of Federal 

Regulations. Although a copy of the "compromise settlement agreement" 

executed by Austin Powder's counsel Wall and MSHA's counsel contains a 

115 
"disclaimer" as to MSHA's jurisdiction, counsel Wall nonetheless indicated 

his understanding that "the agreement to pay.the proposed settlement 

amounts will be. considered a history of prior violations in future 

proceedings (if any), brought by the Secretary.of Labor under the provisions 

of the Mine Safety and Health Act" (pg. 2, settlement agreement), MSHA 

v. Austin Powder Company, Docket No. YORK 80-82-M. 

Although the aforesaid "settlement ~greement" also contains a 

statement that it is the "intent of the parties" that the settlement 

approved by Judge Kennedy shall not be "offered, disclosed, used or 

admitted in evidence" in future litigation involving the parties except 

for the limited purpose of showing prior history by Austin Powder, I am 

not bound by the parties intent in that case. It seems to me that the 

payment of $20,000, by a company who vigorously disclaims it is covered 

by the Act is somewhat contradictory. If Austin Powder is not subject 

to the Act as a mine operator or independent contractor, the question 

of prior history is totally irrelevant. Further, in at least one decision 

concerning the approval by a judge of a settlement entered into by the 

parties, the Commission has not recognized the use of "disclaimers" 

or "exculpatory language" in its review of approval or disapproval of 

settlements in such settlement negotiations when it appears that the use 

of such language is for the purpose of insulating an operator from further 

enforcement jurisdiction. See: MSHA v. Amax Lead Company of Missouri, 4 

Ft1SHRC 975 (1982). See also, Co-Op Mining Company, 2 FMSHRC 3474 

(1980), where the Commission rejected a Judge's approval of a settlement 

when it appeared that no violation of any mandatory standard had occurred. 

In my view, Austin Po~~er is more than a merE? sales conduit _ _fo~. 

blasting powder and explosives used in .the removal of overburden by 

mine operators for the express purpose of mining the coal which lies 

immediately below of the surface. Austin Powder is directly involved 

in the coal removal process when it provides the blaster, trucks, equipment, 

and trained personnel to do the actual blasting and removal of overburden. 

Under these circumstances, Austin Powder is an independent contractor 

within the reach and jurisdiction of the 1977 Mine Act. Austin is no 

different from other independent contractors who are retained by coal 

companies for the express purpose of utilizing' their expertise and 

experience in different phases of the coal extraction process. For example, 

a mine operator may retain the services of a contractor to sink mine shafts 

or to construct other necessary facilities such as cleaning plants, 

tipples, or even bathhouses.. or to perform certain drilling or mine 

excavation work. As a matter of law', these contractors are "operators" 

under the Mine Act's definition. On the facts of the instant proceedings, 

the citations issued to Austin Powder described conditions or practices 

by ·an employee of Austin Powder relating to the work that Austin Powder 

was engaged to perform. As a matter of fact, Austin Powder was directly 

involved in the abatement of the citations attributed to its alleged 

violations. 

Notwithstanding Mr. Thrush's "loss of memory" concerning the matter 

of who absorbs the costs of the services provided by the blaster, and .• 

116 
Austin '·s assertion that there is no charge for these services, there 

is a strong inference in this case that these costs are included in the 

price of the explosives and powder used by Doan Coal Company. I assume 

that Austin Powder is in business to make money, and I assume further 

that its success has not come from "free services". In any event, even· 

if Austin gave its powder away I would still conclude that it was engaged .. 

in provided a blasting service, albeit gratuitously. 

It seems clear to me from the record in this case, that contrary 

to any intent on the part of the parties as to the status of the blaster 

Lucas, he is in fact an employee of the Austin Powder Company. It is 

also clear to me that on the day of the accident in question Mr. Lucas 

was performing an important service at the Doan Mine site and that 

this service was directly related to the extraction of coal. While it 

may be true that anyone on Doan's mine property is subject to the "control" 

of the mine owner and operator, this is no different from the "control" 

that any land owner of businessman exercises over persons who come onto 

to his property or enter his business establishment. The critical question 

here is whether Doan Coal exercises supervision and control over Austin 

Powder's blas·ter while the blaster is performing his blasting duties. 

I conclude and find that while engaged in the work of the actual 

blasting and removal of the overburden on the day of the accident, the 

blaster, Mr. Lucas, was performing his duties as a "miner" as defined by 

section 3(g) of the Act, that he was not under the control of Doan Coal 

Company while performing these duties, but rather, acted as an employee 

and agent of the Austin Powder Company. In addition, I also find and 

conclude that as the licensed blaster Mr. Lucas acted in.dependentl)ifrom any direct supervision or control by Doan Coal Company, and that 

in his capacity as the licens.ed blaster he exercised direct supervision 

and control over his crew, all of whom are in the employ of Austin Powder, 

and that he also had direct control of the trucks and equipment owned 

by Austin Powder and used in the blasting process. Further, Mr. Lucas 

had full responsibility for the blast, including the charging of the 

holes, and the final detonation. ·He was also responsible for insuring 

the safety of his crew and other miners, and he issued the order to shut 

down all mine equipment immediately preceding the blast. As a matter 

of fact, Doan's own safety director Mitchell testified that once the 

blasting crew comes onto mine property, the only contact he has with them 

is to make sure that they have signed a "hazard recognition" form. 

After careful consideration of all of the evidence and testimony 

adduced in this case with respect to the jurisdictional question, including 

the arguments advanced by the parties in support of their respective 

positions, I conclude and find that for the purposes of this proceeding, 

Austin Powder Company is an independent contractor who was performing 

blasting services at the mine site in question on the day of the accident 

and as such is, as a matter of law and fact an "operator" within the meaning 

of the Act and is therefore subject to the Act as well as to MSHA's 

enforcement jurisdiction. I reject Austin Powder's "common law loan servant" 

117 
argument, and ·I also reject its arguments that the "service agreement" 

fixes the parameters of MSHA's enforcement jurisdiction, and that the 

agreement places Austin Powder beyond the reach of the Act. I also 

reject the notion that before Austin Powder can be considered an . 

independent contractor there must first be in existence an implied 

or express contract between Austin Powder and Doan Coal requiring the 

provision of services. It seems clear to me on the facts of this case 

that Austin Powder did in fact provide rather extensive and continuous 

services for Doan Coal Company, and that the services provided were 

directly related to the mining of coal. Austin's attempts to limit its 

liability through the use of a "service agreement" may be recognized 

as valid as between the parties, but I reject it as a means of absolving 

Austin from any responsibility or accountability under the Mine Act. 

I accept MSHA's arguments that acceptance of Austin Powder's attempts 

to limit its liability by means of the "service contract" would amount 

to a total disregard of the Congressional intent expressed in the Act 

of placing liability for violations according to .actual conduct, and 

would be contrary to public policy. 

Fact of Violation - Citation No. 1041345, August 6, 1981, 30 CFR 77.1303(h) 

Citation No. 1041345 was issued because the inspector believed that 

Mr. Lucas failed to give "a proper warning according to the posted requirements", and that his asserted failure to do so constituted a .violation of 

section 77.1303(h). The first sentence of this standard states that 

"Ample warning shall be given before blasts are fired". 

The requirement state~ in section 77 .1303 (h) .. is that an ame.le warning 

be given before a shot is fired. MSHA's position in this case appears 

to be that by failing to follow the blasting warning signal system which 

wa~ posted on a sign on the road coming on.to the mine site, Mr. Lucas 

failed to give the kind of warning required by the standard. In short, 

MSHA contends that the signal system posted on the sign was required to 

be followed by Mr. Lucas, and when he failed to follow it he violated 

section 77.1303(h). A short answer to this argument is that the standard 

itself does not provide for any specific signals to be given. ·It. seems 

to me that since blasting and the use of explosives is inherently hazardous, 

MSHA should as a minimum promulgate a standard that makes it absolutely 

clear· as to what is required. The use of such broad language as "ample 

warnings" leaves much to the imagination, and the instant case is a classic 

example of this. MSHA's counsel conceded during the hearing that the 

cited regulation does not require the use of any particular signal system, 

the posting of signs, barricades, or road guards for the purpose of warning 

persons about blasting. 

MSHA's counsel conceded that there is no specific regulatory standard 

as to what constitutes a "proper" or "ample" warning signal prior to the 

detonation of any shot (Tr. 42). His position is that if a sign gives 

sufficient warning of a pending blast and gives the mine operator's and 

contractor's emp~oyees time to remove themselves from a blast area, if 

that sign is followed, then ample warning is given (Tr. 43). Given the 

118 
facts in this case, MSHA's position appears to be that since the accident 

victim was killed when struck by flyrock from the blast, the signal which 

was given by the blaster was obviously per se inadequate to properly warn 

the victim. 

Section 77.1303(h) only requires that an ample warning be given. The term "ample warning" is not further defined, and MSHA's counsel conceded 

that the question as to what constitutes an "ample warning" within the 

meaning of the standard "has to be determined by the facts" (Tr. 78). 

Further, since the standard itself does not require any particular form 

of warning such as signs, flags, barricades, or the sounding or horns, 

MSHA's arguments that the blaster was required to follow the signal system 

posted on a sign which was located on a mine road leading onto the property 

is rejected. 

MSHA's counsel conceded that there is no requirement for the use of 

blast warning signs, and there is no requirement that such 3: sign be 

posted on the mine roadway (Tr. 451-452). As a matter of fact, the sign which 

was on Doan's property and which has been referred to in this case was 

in fact a sign approved or furnished by the Office of Surface Mining (OSM), 

U.S. Department of the Interior (Tr. 450). However, counsel took the 

position that if the sign is posted, it becomes the blast warning plan, 

and the operator should follow it (Tr. 452). Absent any showing that 

the mine operator or contractor in this case were required by any MSHA 

standard to adopt a signal system and post it on such a sign, I cannot 

conclude that Mr. Lucas' failure to do so ipso facto const·itutes a 

violatio~ of the warning requirements of the cited regulation. MSHA 

has conceded as much when it agreed that the question of what constitutes 

an "ample warning" has to be determined by the facts of any given case. 

Further, I believe that the question as to whether any blasting warnings 

are "proper", as charged in the citation in question, is a highly subjective 

matter which is not even addressed by the regulatory language in question. 

What may be "proper" to an experienced and licensed blaster who is at 

the blast site supervisinga shot, may not be "proper" in the judgment 

of an inspector who is called upon (in hindsight) to render a judgment 

after an accident such as the one which occurred in this case. 

In a case decided by Judge Broderick on October 13, 1981, MSHA v. 

Domtar Industries, Inc., 3 FMSHRC 2345 (1981), a salt mine operator 

was charged with a violation of section 57.6-175, an underground blasting 

regulation, the first sentence of which is identical to the first sentence 

of &ection 77.1303(h). In that case two miners were killed in a blasting 

accident, and MSHA charged that the blasting crews had failed "to use 

effective voice communications between themselves to provide ample warning 

when firing blasts". Although Judge Broderick ruled that since two miners 

were killed it was obvious that they were not warned, he also observed 

that oral communication is not the only way to provide "ample warning" in 

compliance with the standard, and he rejected MSHA's suggestions to the 

contrary. 

119 
MSHA's conclusions at page nine of its posthearing brief that "the 

blast warning signals given by the blaster apparently varied from day to 

day" are unsupp"orted conclusions by counsel and he cites no transcript 

references or testimony in this regard. Further, MSHA's reliance on the 

opinion by State Inspector Williams that the warning signals used by the 

blaster on the day of the accident did not constitute a "proper warning" 

to miners is rejected. I conclude and find that the respondents in these 

proceedings presented credible evidence and testimony that Mr. Lucas 

did all that could reasonably be expected of him on the day in 

question to insure that miners were apprised of the fact that there would 

be a shot or blast, and my reasons for these findings follow. 

Mr. Lucas' unrebutted testimony is that five-to-ten minutes elapsed 

between the time the shot was fired and actually detonated. During this 

time a call was placed over the mine radio communications system advisi~g 

the personnel in the scale house, as well as the mine office, that the 

blast would be set off and that all equipment should be shut down. In 

addition, prior to the actual detonation, three 20 second blasts of an 

air horn were sounded, and a siren signal was sounded for at least a 

minute prior to the blast. 

David Potempa testified that when he arrived on mine property some 

five minutes before the blast, he knew there was going to be a blast 

because he had seen the blasting crew earlier in the day, and he went 

directly to the scale house. He also testified that he knew the shot 

would be fired because he heard the warning signals go off five minutes 

before the blast and one minute before it was actually detonated. He 

believed that he received adequate warning, did not feel that he··-Was· in 

danger, and believed that the signals sounded on the day in question were 

the same as those posted on the signal sign by the mine roadway. 

Crusher operator Albert Bloom testified that ten minutes before the 

blast he received notice over the company radio installed in his loader, 

and he received the notice from the dragline operator who instructed him 

to shut the equipment down. Since the crusher where the accident victim 

Alvatrona was working had no radio on it Mr. Bloom signaled him by hand 

to shut the crusher down, and Mr. Alvatrona complied. Mr. Bloom indicated 

that the hand signal which he gave to Mr. Alvatrona to shut down the crusher 

was one that is regularly used and it is a procedure that everyone knew 

and followed. As a matter of fact, he indicated that when he observed 

truck driver Martz driving into the area he signaled him to stop his truck 

and to shut it down. Once the loader and crusher were shut down, Mr. Bloom 

observed Mr. Alvatrona heading toward the scale house and he assumed 

that he was going there .and did not speak to him further. Mr. Bloom 

also confirmed that company policy calls for personally advising all 

employees of an impending blast over the radio communication system, and 

that five to seven or ten minutes elapsed between the time he received 

the radio notice and the actual blast. He also confirmed that it was 

normal operating procedure to shut down all equipment as soon as a notice 

of a blast is received, and if any of his fellow workers do have radios, 

120 
he personally sees to it that they are notified. Further, Mr." Bloom 

indicated that in addition to personal notification, he also heard three 

airhorn signals sounded immediately before the blast. 

In view of the foregoing, I conclude and find that the signal system 

used on the day of the accident, namely the sounding of air horns, 

coupled with the direct personal contact made over the mine radio 

communications system was an ample warning within the meaning of the 

first sentence of section 77.1303(h). Accordingly, respondent Austin 

Powder Company was in compliance with the cited standard and the section 

104(a) Citation No. 1041345 IS VACATED. 

Factof Violation - Citation No. 1041342, July 31, 1981, 30 CFR 77.1303(h) 

Citation No. 1041342 contains two "specifications" which the inspector 

apparently believed constituted violations of the second s·entence of 

mandatory safety standard section 77.1303(h). The citation asserts that 

(1) "ail persons were not cleared and removed from the blasting area", 

and (2) that "suitable blasting shelters were not provided to protect 

men endangered by concussion or flyrock from blasting". The pertinent 

portion of section 77.1303(h), is as follows: 

All persons shall be cleared and removed from 

the blasting area unless suitable blasting shelters 

are provided to protect men endangered by concussion 

or flyrock from blasting. 

The alleged failure to clear persons from the "blasting a.rea" 

The term "blasting area" is defined by section 77.2(f) as "the area 

near blasting operations in which concussion or flying material can 

reasonably be expected to cause injury". MSHA's theory in this case seems 

to be that since someone was killed, the victim was obviously not removed 

or cleared from the blasting area. In the circumstances, MSHA argues 

that since the standard deals with explosives and blasting, an operator 

is absolutely liable for any resulting injuries or deaths. MSHA's theory 

of absolute liability was expounded on by its counsel during the course 

of a colloquy from the bench (Tr. 177-182). MSHA's counsel takes the 

position that since the standard deals with explosives there is absolute 

liability when the operator fails to remove all persons from the blasting 

area, even though the operator may have made a reasonable physical search 

of the area prior to blasting. MSHA's position is highlighted by its 

answer to the following question asked by me during the course of the 

hearing (Tr. 181): 

ADMINISTRATIVE LAW JUDGE KOUTRAS: If some back packer 

came on the site, crawled in his sleeping bag and fell 

asleep; and, during the hoot owl shift, a shot fired off, 

the mine operator took reasonable steps to remove and to 

account for all of his people, and every man was taken 

121 
away from the shot, and the next morning they found 

this guy that was knap sacking killed, would you have 

a citation, and would you charge the operator for 

failing to insure that that kid was not removed from the 

site prior to the shot? 

MR. COHEN: It may be a technical violation, no negligence, 

but you are dealing with explosives,. and we do think there 

is an absolute liability to remove all persons. 

In the Domtar Industries case, supra, MSHA amended the citation 

after the action before Judge Brode:r:ick was begun to include an allegation 

that the two men who were killed were not cleared and removed from areas 

endangered by the blast as required by the second sentence of section 

57.6-175. This standard uses the phrase "areas endangered by the blast" 

rather than "hlasting area". In affirming the violation, Judge Broderick 

ruled that "the fact that the miners' bodies were found in that area is 

irrefutable proof" that all persons were not cleared from the area 

endangered by the blast. In a footnote to this ruling, Judge Broderick 

stated as follows at 3 FMSHRC 2348: 

The Mine Act is generally a strict liability statute. 

The language of the cited standard and the wording of 

§ llO(a) of the Act make it plain that unforeseeability 

is not a defense to a violation, nor can the operator avoid 

a violation by placing the blame on a careless employee. 

MSHA v. El Paso Rock Quarries, 3 FMSHRC 35 (1981); Hend~nsfels 

v. Drilling Co., 2 FMSHRC 790 (1980). 

In the instant case, MSHA does not cite the Domtar Industries decision 

or the cases cited by Judge Broderick in support of a strict liability 

theory. MSHA's brief simply states that the use of explosives have generally 

been considered areas where strict liability concepts are specifically 

applicable, and concludes that the language of section 77.1303(h) "directly 

incorporates the strict liability principals applicable to blasting, into 

its requirements".MSHA argues that the mere fact tpat the blast victim 

and blaster and his crew were not clear of the area' where flyrock from the 

blast did fall is sufficient to impose liability under section 77.1303(h). 

I agree with the position taken by Austin Powder Company in its 

posthearing arguments that before MSHA can establish that all persons were 

not cleared from the blast area, it has the burden of first establishing 

what that area is. As correctly pointed out by Austin Powder's counsel 

in his brief, MSHA has attempted to establish the "blast area" in two ways. 

First, MSHA maintains that the blast area was an area within 500 feet 

of the actual blasting location, a.nd. it arrives at this distance by citing 

and relying on a State of Pennsyl~ania regulation'which only requires 

that machinery within 500 feet be shut down and that persons retreat to 

a safe distance. 

122 
MSHA's second attempt to establish the parameters of the blast area 

was to determine after the accident during its investigation how far 

the furthest flyrock traveled. Anything inside that area would be considered 

the "blast area" and anything beyond the farthest point where the rock landed 

would be outside' the "blast area" and presumably in the "safe zone" 

MSHA's interpretations and arguments with respect to what the "blasting 

area" should be in this case border on fantasy. It seems to me that when 

one is dealing with regulations concerning explosives and blasting, the 

standards sought to be invoked by MSHA should be clearly and precisely 

drawn and applied by the inspectors in the field so that they are readily 

understood by those being regulated, as well as those who have the enforcement 

responsibility for insuring compliance. The theories advanced by MSHA in 

this case are different from those recently advanced in another blasting 

case concerning a mine operator in Pennsylvania, and a discussion of this 

case follows. 

On August 25, 1982, I issued a decision in the case of MSHA v. 

Rockville Mining Company, Docket No. WEVA 82-10. The case concerned an 

allegation that a Pennsylvania mine operator failed to clear and remove 

miners from a blasting area in violation of section 77.1304(h). Even 

though the mine was located in Pennsylvania, MSHA made no mention of any 

500 foot requirement or absolute liability, and the inspector who issued 

the citation, as well as a second inspector who was a qualified MSHA 

explosives instructor, said absolutely nothing about any 500 foot "safe 

distance" requirement. In fact, the instructor gave an opinion that based 

on the size of the charge in the two bore holes in question, 130 feet 

was a safe distance, and the inspector who issued the citation rendered 

an opinion that ·if all of the holes in question were charged with 800 

pounds of explosives each, a safe distance would be· 2,000 feet away. In 

short, in the Rockville Mining case~ the question as to what constituted 

the "blasting area" was dependent on a number of variables, such as the 

amount of explosives used, the number and depth of the holes which 

constituted the "shot", the topography, and the expertise of the blaster. 

On the facts of the instant case, I conclude and find that in order 

to establish a violation of the first specification noted in the citation 

MSHA must establish by a prepondance of the evidence that Austin Powder 

failed to insure that persons within the "blasting area", as that term 

is defined by section 77.2(f), were not cleared or removed prior to the 

blast. I reject MSHA's "absolute liability" theory, and I also reject 

the notion advanced by MSHA that the mere fact that the blast victim 

and the blaster and his crew were in an area where flyrock fell is sufficient 

to impose liability under section 77.1304(h). In order for this standard 

to make any sense at all, it seems to me that it has to be interpreted 

rationally and consistently. "Hindsight" and after-the-fact interpretations 

for the purpose of laying the blame on someone for an unfortunate accident 

do not in my view advance the interests of safety, particularly when the 

standard in question is obviously being inconsistently applied and 

interpreted. 

123 
In this case, MSHA also advances the argument that the blaster should 

hav.e followed the recommendations or requirements· of Pennsylvania State 

law and positioned himself 500 feet from the blast. I find nothing in 

section 77.1304(h) that supports this theory, and as correctly pointed 

out by Austin Powder's counsel, the state code provision relied on does 

not define the "blast area", and counsel's observations that requiring 

mine operators to follow different state law regulations on this issue 

can only lead to chaos are well taken. In my view, if MSHA believes that 

such state requirements should be followed then it should promulgate an 

appropriate standard and say so. Here, although MSHA fixes the "blasting 

area" by measuring the distance where the farthest rock fell, it also takes the 

position that 500 feet was a safe distance for people to be. Had the rock 

only gone 100 feet, that would have fixed the "blasting area", yet MSHA 

would probably still insist that miners be cleared to a distance of 500 

feet. I simply cannot accept such contradictory interpretations and 

applications of the cited standard, and I reject MSHA' s "500-foot theory". 

While I agree with the argument that the blaster in this case had a 

duty under section 77.1304(h), to locate anyone who happens to be in the 

"blasting area" prior to the shot and to insure that he is removed and 

cleared away, I disagree with MSHA counsel's argument that the blaster 

has such a duty even though he may not be able to.visually observe such 

a person prior to the shot (Tr. 34-35). I conclude and find that in light 

of the definition of the term "blasting area", the blaster has a duty 

to take reasonable and prudent measures to insure that all persons are 

cleared and removed from the "blasting area" as reasonably and prudently 

determined by him at the q,me of the shot, and not as determined:.bY_.nonexperts after the fact. 

In the instant case, MSHA conceded that the procedures followed 

by the blaster were technically correct. MSHA found nothing wrong in the 

manner in which Mr. Lucas loaded, wired, and fired the shot. Further, as 

the record here established, at the time the citation was issued Inspector 

Bixler filled out an "inspector's statement" in which he candidly 

acknowledged that the accident could not have been predicted and that 

it resulted from circumstances beyond the operator's control. He later 

filled.out a new statement at the direction of his supervisor after someone 

from the solicitor's office made a "lawyer's judgment" that the case obviously 

could not be defended on its merits. Mr. Bondra candidly admitted during 

the hearing that the sketch of the "blasting area" as shown in his accident 

investigation report was a mistake. 

Mr. Lucas testified that he and his crew were positioned some 300 

feet from the blast, and he confirmed that in determining what constitutes 

the "blasting area", he takes into consideration the size of the shot, 

the manner in which it is loaded, and th~ surrounding terrain. On the 

day in question, he determined that the shot would go in the opposite 

direction from where he and his crew were located, but that for some 

unexplained reaso'n there was a "blowout" which caused the flyrock in 

question. 

124 
The record reflects that at the time of the blast, Mr. Lucas was 

an experienced and licensed blaster. He holds a college degree in 

mathematics, and as indicated earlier, MSHA's investigation disclosed 

nothing wrong with the manner in which the shot was fired. Further, since 

Inspectors Bondra and Bixler are not blasting experts, do not hold 

blaster's licenses, and have no experience in surface blasting, they 

were in no position to offer any credible testimony as to the technical 

aspects of the shot or the "blowout". Mr. Bixler conceded that at the 

time he issued his citation he did not take into account Mr. Lucas' opinion 

that 300 feet was a safe distance from the blast, and he also conceded 

that Mr. Lucas did have the safety of his crew in mind prior to the blast~ 

Mr. Lucas testified that prior to the "blowout" he had made five 

to six other shots.using the same amount of explosives and that there 

was nothing unusual about those shots. Under the circumstances, he 

obviously had no reason to believe that a "blowout" or flyrock would 

occur, and he confirmed that prior to the detonation of the shot, he 

checked all of the charged holes for potential signs of a "blowout". 

Further, as indicated earlier in my findings concerning the sounding of 

a warning, Mr. Lucas did all that was reasonably possible to alert 

all persons within the blasting zone of hazard to shut down all equipment 

and to seek shelter. 

I conclude and find that Austin Powder Company has established by 

a preponderance of the evidence adduced in this case that prior to the 

detonation of the blast in question, Mr. Lucas acted in a reasonable 

and prudent manner in securing the area, and that he removed himself and 

his crew to a safe distance and to a location which he re)isonabJy b~ieved 

was outside the "blasting area" as defined by section 77.2(f). I also 

conclude and find that Mr. Lucas acted in a reasonable manner in clearing 

all other persons from the blasting area, and that he did all that could 

be expected of a reasonable and prudent blaster to insure that all persons, 

including the accident victim, were outside the blasting area. Under 

these circumstances, I conclude that MSHA has failed to establish a 

violation and that portion of Citation No. 1041342, which charges Austin 

Powder with failing to remove and clear all persons from the blasting area 

IS VACATED. 

The alleged failure to provide suitable blasting shelters 

Citation No. 1041342 also charges Austin P0wder with a failure to 

provide suitable blasting shelters. Section 77.1303(h) requires that 

all persons be cleared and removed from the blasting a·rea unless suitable 

blasting shelters are provided to protect men endangered by concussion or 

flyrock from blasting. The regulations do not specify what a "suitable 

blasting shelter" is, and this matter is apparently left to the discretion 

and judgment of the blaster. 

MSHA's counsel asserted during the course of the hearing that the 

citation was issued in part for failure to remove persons from the scale 

house, a location which counsel asserts was inside the blasting area (Tr. 132-134). 

125 
In an attempt to justify the inspector's opinion that the scale house 

was not a suitable shelter, he was asked to speculate on whether or not 

a large rock w~uld crash through the roof of the scale house, and when 

he answered in the affirmative, counsel grasped at this as evidence that 

the scale house was not a suitable shelter. I find this conclusion on 

the part of the inspector to be sheer speculation and a feeble attempt 

to justify his after-the-fact lay opinion that the scale house was not a 

suitable shelter and that the failure to remove personnel from that 

location also constituted a violation of section 77.1303(h). 

I take note of the fact that nowhere in the official MSHA report of 

investigation compiled by Inspector Bondra is there any mention of the 

fact that the scale house was not a suitable shelter, or that the failure 

to remove persons from that location concerned the inspector. Further, 

I take note of the fact that the conditions or practices described by 

Inspector Bondra on the face of his citation do not even mention the 

scale house or anyone in it as part of the alleged violative conditions 

or practices. His citation is limited to an assertion that the accident 

victim was not removed to a safe area, and his conclusions in this regard 

were obviously based on the fact that the accident victim suffered fatal 

injuries as a result of being struck by flyrock. Since the citation was 

issued after the investigation was completed, and since it is based on 

information which came to the inspector's attention in the course of 

that investigation, one would think that the inspector would have 

included the "scale house theory" in the citation. I believe that his 

failure to do so stemmed from the fact that at that point in time Mr. Bondra 

did not believe that the scale house was in the blasting area. I also 

believe that the inclusion of the scale house personnel during t~ 9ourse 

of the hearing was an afte~-thought to bolster MSHA's theory of the definition 

of "blasting area". 

Although Mr. Lucas conceded that there were no designated blasting 

shelters at the location of the shot, a drill rig, a shot truck, and a 

driller's maintenance truck were present and he considered this equipment 

to be suitable blast shelters (Tr. 67-69). However, in his opinion, if 

the men are at a safe distance there is no need for them to crawl under 

the equipment. As for himself, he conceded that he was not in or under 

any piece of equipment because he believed he was at a safe distance some 

300 feet from the actual blast operating his detonating device. Aside from 

the fact that he believed he was at a safe distance, Mr. Lucas also was 

of the opinion that a blaster must be able to observe the blast so as 

to detect any misfires and to insure that the proper blasting sequence 

takes place. Mr. Doan testified that the scale house was in a secure 

area and that a rock would not penetrate the roof. He also testified 

that the crush~r is constructed of structural steel and was a ''wonderful 

shelter". 

Inspector Bondra conceded that a piece of equipment can serve as 

an adequate blasting shelter, and he confirmed that the drill rig which 

was some thirty feet from where Mr. Lucas was standing at the time of 

the detonation would be a shelter. Even though he indicated that his 

126 
investigation did not determine where the other trucks were located or 

where the crew was standing~ his opinion was that the only safe shelter 

within 500 feet of the blast was under the drill rig. He also confirmed 

that had the blasting crew been under the trucks, he would not have issued 

the citation for this violation. 

I have some difficulty in comprehending precisely what MSHA's position 

is with respect to the alleged failure by Austin Powder to provide the 

type of shelter contemplated by the second sentence of section 77.1303(h). 

I suspect that the inspector decided to include this specification in his 

citation after determining during his investigation that Mr. Lucas was 

standing some thirty feet from the drill rig and was not under it when 

debris from the blast went over his head. Since the inspector apparently 

did not determine where the rest of the crew was positioned, I have no way 

of knowing what .he had in mind with respect to the rest of the crew. 

As I interpret the cited standard, if suitable blasting shelters are 

provided, there is no requirement that persons be cleared and removed from 

the blasting area. Conversely, if persons are not within the blasting 

area, there is no logical reason for requiring suitable blasting shelters. 

The language of the standard leaves much to the imagination, and I suspect 

that this is the reason for MSHA's anemic argument which appears at pg. 8 

of its brief as follows: 

* * * the fact that there were some trucks inside 

the blasting zones at the time of the blast is not a 

substitute for specifically designating and pro..viding .. 

suitable shelters for the protection of miners. Unless 

the miners are trained in using shelters and know where 

the designated shelters are, they do not serve their 

intended purpose. 

On the facts of this case, it would appear that the fatality which 

occurred prompted the inspector to conclude that suitable shelters were 

not provided. However, a fatality·, in and of itself, does not establish 

a violation of any mandatory safety standard. On the facts of this case, 

I cannot conclude that MSHA has established by a preponderance of any 

credible evidence, that Austin Powder failed to provide suitable shelters. 

To the contrary, I conclude and find that the evidence establishes that 

suitable shelters, within the language of the cited standard, were in 

fact provided. If MSHA chooses to penalize a mine operator or its independent 

contractor everytime a fatality occurs, without regard to whether or not 

the facts presented justify such a course of action, then I suggest it 

seriously co'nsider completely outlawing blasting or the use of explosives, 

or in the alternative, promulgating standards which make sense. I conclude 

and find that MSHA has failed to establish that suitable shelters were. 

not provided, and that portion of the citation which alleges that were 

not IS VACATED. 

127 
Docket No. PENN 82~33 

Fact of Violati.on - Citation No. 1042215, July 31, 1981, 30 CFR 77.1303(h) 

This citation was served on Doan Coal Company, and it seems clear 

that the inspector issued it because of the fatality. An identical citation 

was served on Austin Powder Company after the inspector concluded that 

blaster Lucas was not under a suitable shelter because debris from the 

blast in question flew over his head while he was standing some thirty 

feet from a drill rig which the inspector believed constituted a suitable 

shelter. Here, since the victim was struck and killed by flyrock while 

apparently sitting on a spoil pile observing the blast, the inspector 

concluded that a suitable shelter was not provided, and that the accident 

the victim was not cleared and removed from the blasting area. 

For the same reasons articulated in my findings and conclusions 

concerning Austin Powder's alleged failure to provide suitable blasting 

shelters or to remove persons from the blasting, I conclude and find 

that MSHA has failed to establish violations of the part of respondent 

Doan Coal Company. I find that Doan Coal took all reasonable steps to 

remove persons from the blasting area prior to the detonation. Once the 

call came over the mine radio communications system, the loader operator, 

Albert Bloom, signaled the victim to shut down the crusher, and when last 

seen by Mr. Bloom the victim was walking on the road in the direction 

of the scale house. I conclude that the victim must have known about the 

impending blast since he shut down his equipment and apparently decided 

to go on a frolic of his own to the coal spoil pile to view the blast. In 

these circumstances, I con~lude that Doan acted reasonably, and !ilJse.nt 

any requirement that a mine operator take a physical inventory of all of 

its personnel and lead them individually to a safe shelter, I cannot 

conclude that Doan Coal Company could have done anything else to prevent 

the tragic accident which occurred in this case. Under the circumstances, 

the specification in the citation charging Doan Coal Company with failing 

to remove all persons from the blasting area IS VACATED. 

With regard to the charge that Doan Coal Company failed to provide 

suitable blasting shelters, I conclude and find'that the primary responsibility 

for providing such shelters fell on Austin Powder. MSHA's attempts to 

hold Doan Coal Company responsible after the fact on the theory that the 

scale house was not a suitable shelter and did not have a sign posted on 

the door identifying it as such is rejected. If MSHA believes that a mine 

operator should label every piece of 'equipment or building as a "suitable 

blast shelter", similar to those buildings labeled "civil defense shelters" 

to be used in the event of a nuclear holocust, then MSHA should seriously 

think about promulgating some standards and guidelines in this regard. This 

specificat:j..on noted in the citation ls also V$,CATED. 

ORDER 

In view of the foregoing findings and conclusions, MSHA's proposals 

128 
for assessment of civil penalties against the named respondents are 

rejected, and these proceedings are DISMISSED. 

~?.Kot!~~ Administrative Law Judge 

Distribution: 

Robert A. Cohen, Esq., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Donald A. Wall, William Michael Hanna, Esqs., Squire, Sanders & Dempsey, 

1800 Union Commerce Bldg., Cleveland, OH 44115 (Certified Mail) 

Robert M. Hanak, Esq., 311 Main St., Box 250, Reynoldsville, PA 15851 

(Certified Mail) 

129 
SERVICE AGREEMENT 

AUSTIN POWDER COMPANY 

Cleveland, Ohio· 

11 

' 192/ 

WHEREAS, the undersigned customer may hereafter, from time to time, request certain assistance of AUSTIN 

POWDER COMPANY in connection with the performance of certain blasting work; and 

WHEREAS, AUSTIN POWDER COMPANY is not ef!gaged in blasting work, its business in explosives being confined 

solely to the manufacture and sale thereof, but to assist tl~e said customer, the said AUSTIN POWDER COMPANY has agreed, at 

certain times, to permit said customer the temporary use, free of charge, of the services of said company's ~mployees, together 

with or without certain needed equipment. 

·NOW, THEREFORE, the undersigned customer hereby expressly agrees that, while engaged in s~id work, said emrloyees 

and equipment are and shall be, on each occasion, to .•II intents and purposes, the employees and equipment of the said 

cusmm" and subject to said customer's sole supervision and control in all respects, and that all work and services so performed 

shaU ·be at the sole risk and responsibility of the said customer. The undersigned customer further expressly agrees to indem· 

nify and hold harmless the AUSTIN POWDER COMPANY, hs employees and agents, from any and all liabilities, damages, 

losses or claims of any character, whether caused by negligence or otherwise, as a result of injuries to any property, any 

person or the said customer from such services or work ( ex~pting only liability for injury or. death of AUSTIN PowDJ:R 

COMPANY employees). The undersigned customer hereby expressly recognizes and assumes sole and absolute responsibility 

for the result of the services or work of such employees ot the use of equipment gratuitously furnished by said AUsTm 

POWDER CoMPANY. · 

This agreement shall continue In force until either party notifies the other, in writing, of its desire to terminate the 

same, but such termination shall not relieve either party of any liability arising thereunder prior to such termination. 

A.USTIN POWDER COMPANY - _::[)~ · ~mM&Y 

Dy ¥~.,,,{_ Dist. NoO.LJ u~~~&l,~~ZE~::::::::::::::: __ = 

ORIGINAL• CLS.YS.L.\ND CO .. Y .. INK• CUHOMIE!t"a CO .. Y FOllM ea llllV.•l•T• 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 18 1983 

SECRETARY OF LABOR', 

on behalf of 

Complaint of Discharge, Discrimination, 

or Interference 

ANTHONY HERIGES., TOM ANTONINI, 

JOHNNY GIBSON and LARRY HALEY, 

Complainant 

v. 

ISLAND CREEK COAL COMPANY, 

Respondent 

Docket Nos. KENT 80-14-D 

KENT 80-15-D 

KENT 80-22-D 

KENT 80-23-D 

KENT 80-42-D 

KENT 80-52-D 

ORDER OF DISMISSAL 

FOR GOOD CAUSE SHOWN, the Secretary's motion to withdraw his complaint 

in each of the above cases is GRANTED. 

WHEREFORE IT IS ORDERED that the above proceedings are DISMISSED. 

?)/~~vVL: WILLIAM FAUVER, JUDGE 

Distribution Certified Mail: 

Ann Rosenthal, Esq., Office of the Solicitor, US Department of Labor, 4015 

Wilson Boulevard, Arlington, VA 22203 

Marshall S. Peace, Esq,, Assistant Corporate Counsel, Island Creek Coal 

Company, 2355 Harrodsburg Road, PO Box 11430, Lexington, KY 40575 

Harrison Combs, Esq., UMWA, 900 15th St., NW, Washington, DC 20005 

131 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

·5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 18 1983 

WES'J110RELAND COAL COMP ANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

. ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner . v. 

WESTMORELAND COAL COMPANY, 

Respondent 

DECISION 

CONTEST OF ORDER 

Docket No. WEVA 82-152-R 

Order No. 886894; 1/12/82 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 82-369 

A.C. No. 46-01514-03501 

Eccles No. 6 Mine 

Appearances: John A. Macleod, Esq., Crowell & Moring, Washington, D.C., 

for Westmoreland Coal Company; 

Before: 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, Virginia, for the Secretary 

of Labor. 

Judge Melick. 

These consolidated cases are before me pursuant to sections 105(a) and · 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et 

seq., "the Act", to contest an order of withdrawal issued to the Westmoreland 

Coal Company (Westmoreland) under § 104(d)(l) of the Act and for review of a 

civil penalty proposed by the Mine Safety and Health Administration (MSHA), for 

the violation charged in that order. 1/ The order before me (No. 886894) issued 

1/--S-ection 104(d)(l) of the Act provides as follows: 

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 

132 
by MSHA inspector Homer Gross on January 12, 1982, charges a violation of 

the regulatory standard at 30 C.F.R. § 7S.202 and alleges as follows: 

During a fatal accident investigation, it was revealed that 

the known overhanging rib in the old two north entry on two south 

west section (0270), SS' inby survey station number 9363, was 

not supported or taken down, which resulted in a fatal accident. 

The section was supervised by Robert Hairston, who was aware of 

the condition. 

The cited standard provides as relevant herein that "overhanging or loose faces 

and ribs shall be taken down or supported." 

At approximately lO:lS p.m., on January 11, 1982, a roof fall occurred at 

Westmoreland's Eccles No. 6 Mine, resulting in the death of scoop operator John 

H. Clay. The fall occurred in an area of "old works" last mined in the 1930's 

known as the old No. 2 Entry of the two southwest main section. A work crew 

under the supervision of section foreman Robert Hairston, was sent to the section on Friday, January 8, 1982, and again on Monday, January 11, 1982, to pre-_ 

pare to build a stopping needed to maintain required ventilation. On the latter 

date, the crew arrived on the section around 4·:30 p.m. Hairston first performed 

the required examination of the work places and then assigned duties to the 

crew members. In the sequence of operations, the continuous mining machine was 

first trammed to the last open crosscut, left, connecting southwest main with 

the No. 2 entry of the old inactive two north haulway. Albert Honaker, the 

miner operator, proceeded to clean rock and coal from the mine floor across the 

20 foot wide entry. While working there, Honaker observed what he described as 

a "brow" !:.._/ at the top of the No. 2 entry that protruded from the i-eft "fib some 

];./ (contd.) 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 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 represen~ative of the Secretary determines that such violation has been abated. 

2/ West Virginia State Coal Mine Inspector Danny Graham, testifying on behalf 

of the operator·, explained that the terms "brow" and "overhanging rib" a:re essentially synonymous. Both terms were used in this case to describe the same phenomenon and I conclude that the terminology is indeed synonymous. 

133 
10 to 14 inches along 8 feet of the entry. 3/ Honaker was unable to reach the 

"brow" because it was then too far inby the-roof bolts, but as he left, he 

warned the "pin" crew (roof bolting crew) and ·Arthur Burdiss, the bolter helper, 

in particular, to "watch it". After cleaning as much as he could, Honaker left 

to work in another area. Honaker told foreman Hairston of the brow condition 

and they both later returned with a slate bar. They tried "four or five times" 

to bring it down but left the area without succeeding. !!:_/ 

Arthur Burdiss, a roof bolter helper on Hairston's crew that afternoon, 

recalled being warned by Honaker of the "overhanging brow'' in the old No. 2 

entry. Burdiss estimated that the brow protruded some 10 to.12 inches along 4 

feet of the rib. He and his co~worker, George Ayers, also tried to take down 

·the brow with the slate bar but they too were unsuccessful. They were also 

unable to bolt into the overhanging brow because of the position of the roof 

bolter canopy. Four roof· bolts were, however, installed to within 4 inches 

of the outby edge of the brow. 

Jim Milam was working with the deceased just before the roof fall. They 

unloaded the supplies needed to build the stopping and Milam examined the entry 

to determine where to locate the stopping. At this same time, Honaker and Hairston were continuing in their efforts to take down the brow. According to 

Milam, it projected 12 to 14 inches into the entry and had a "hairline" crack 

or separation in it. He recalls commenting that it looked like a "bad brow'' 

and asked if it had been checked. Milam and the deceased then also tried unsuccessfully to pull the brow down. Because of their inability to· bring it down 

with the slate bar, Milam thought it was safe and both men began pr.epara.tory 

1/ There is some divergence of opinibn regarding the size of this "brow". 

The operator's witnesses who actually saw it before it fell described it variously as protruding from 10 to 14 inches from the rib along 4 to 22 feet of the 

entry. The MSHA inspectors, basing their estimates on the amount of debris 

after the fall, thought the overhang woul4 have been 22 feet long, 16 to 34 

inches thick, and with a brow of up to 68 inches. West Virginia Coal Mine Inspector Graham, testifying for the operator, estimated, based on the same debris, that the brow had projected 30 to 31 inches into the entry. I do not consider the testimonial discrepancies in the size of the brow to be significant 

for purposes of this decision. 

!!_/ Mr. Hairston, the section foreman, declined to answer questions relating 

to the subject matter of this case citing as grounds therefor the protections 

afforded by the Fifth Amendment to the U.S. Constitution. Counsel for MSHA 

could give no assurance that Hairston would not be subject to criminal liability based on the subject matter of this case and did not contest the asserted 

privilege. No inferences have been drawn from Mr. Hairston's refusal to testify in this regard based on his invocation of the Fifth Amendment privilege. 

134 
work on the stopping. As they began shoveling loose coal from the rib beneath 

the brow, Milam saw some "flakes" begin to fall. This convinced him that the 

top was indeed "no good" but before he could shout a warning, the brow and some 

additional roof and rib fell onto Mr. Clay, causing his death. Milam later admitted, after seeing the amount and size of th~ debris from the fall, that the 

full brow had indeed extended some 22 feet along the entry and that "there was 

more to it" than he initially thought. 

As a preliminary matter, Westmoreland claims that the regulatory standard 

here cited, 30 CFR 75.202, is unenforceably vague as applied to the facts of 

this case. The standard provides as relevant herein that "overhanging or loose 

faces and ribs shall be taken down or supported." Westmoreland appears to argue 

·that because an MSHA inspector testified that he would not necessarily cite 

every overhanging rib (for example, a one inch overhang) that in his opinion 

posed no hazard, enforcement of the standard was therefore based upon the subjective discretion of the various inspectors. Westmoreland also cites in this 

regard an internal MSHA memorandum which provides in essence that overhanging 

ribs should be cited only when they present a hazard (Government Ex. No. 2). 

In determining the constitutional validity of a regulatory standard where challenged for vagueness, however, the language of the standard itself must first 

be examined. In this regard I find that the language provides constitutionally 

"reasonable certainty" and is indeed facially unambiguous. Accordingly, MSHA' s 

enforcement practices under the standard are irrelevant to the defense asserted. 

Connally v. General Construction Co., 269 U.S. 385, 391; Boyce Motor Lines, Inc. 

v. United States, 342 U.S. 337. 

Westmoreland next argues that the brow which fell did not constitute an 

"overhanging rib" within the meaning of the cited standard. As previously noted, 

however, West Virginia State Coal Mine Inspector Danny Graham testified on behalf of Westmoreland that the terms "brow" and "overhanging rib" were essentially synonymous. The terms were used in this case by counsel and various witnesses to describe the same phenomenon and I have already concluded that the 

words are indeed synonymous. It is accordingly immaterial whether the cited 

phenomenon is referred to as a "brow" or "overhang1.ng rib". I find that the 

phenomenon was, regardless of the terminology used, an "overhanging rib" within 

the meaning of the cited standard. 

Westmoreland further contends that a violation of the cited standard cannot be supported where "every means of taking down or supporting an alleged 

overhanging rib was either infeasible or presented a potential hazard equal to 

or greater than the hazard presented by that overhanging rib." The contentions 

involve· elements of two affirmative defences, i.e. impossibility of performance 

(or compliance) and the "greater hazard defense". In order to establish the 

former defense, the operator must· prove that (1) ·:compliance with the requirements of the cited standard either would be functionally impossible or would 

preclude performance of required work, and (2) alternative means of employee 

protection are unavailable. Diamond Roofing Company, Inc., 80 OSAHRC 76-3653, 

8 BNA OSHC 1080, 1980 CCR OSHD , 24,274 (Feb. 29, 1980); Secretary v. Sewell 

Coal Co., 3 FMSHRC 1380 (1981), aff'd 686 F.2d 1066 (4th Cir. 1982). In order to 

establish the latter defense, the operator must prove that (1) the hazards of 

135 
compliance are greater than the hazards of non-compliance; (2) alternative 

means of protecting miners are unavailable; and (3) modification proceedings 

under Section llO(c) of the Act would have been inappropriate. Secretary v. · 

Penn Allegh Coal Co., Inc., 3 FMSHRC 1392 (1981). Even assuming that modification proceedings would have been inappropriate under the unique facts of this 

case (an evidentiary matter which was not, however, fully developed at hearing), 

Westmoreland has failed to sustain its burden of proving the other necessary 

elements of either the impossibility of compliance or the "greater hazard" 

defense. 

It has not been shown for example that it was necessary in the first instance to have required the miners to have erected a stopping beneath the overhanging brow. Evidence has not been presented to demonstrate that the stopping 

could not have been erected in a safer location or that other alternative means 

of meeting the ventilation requirements were.unavailable. Even assuming, arguendo, that such alternatives were unavailable, Westmoreland has failed to prove 

that it would have been more hazardous to have supported or taken the overhanging brow down. 

MSHA apparently concedes that the overhanging roof in this case could not 

reasonably have been blasted down or supported with roof bolts (because the canopy on the roof-bolting machine would not allow the machine to be placed under 

the subject brow) and that posts or crib blocks could not have been installed 

because of the angle of the brow (Government Ex. No. 4,- page 4). MSHA maintains, however, that the overhanging roof could have been cut down by using the 

continuous mining machine. There is no dispute that no efforts were made to do 

this. Westmoreland concedes, moreover, that the continuous mJ.ner cpuld~have 

been brought in parallel to the old No. 2 entry·if additional roof bolting had 

been first provided in the entry. It contends, however, that once in the vicinity of the brow, the ripper heads of the miner might have come into contact 

with roof bolts located in close proximity to the brow, causing sparks and possibly tearing down part of the roof. Westmoreland's argument fails, however, to 

take into consideration that the continuous miner could have been safely used 

to trim the brow just ahead of the roof bolting operation. Thus, the miner operator could have progressed alternately with the roof bolter, cutting down the 

brow without the ripper head of the miner ever being in close proximity to the 

inserted roof bolts. 

Westmoreland also contends that the brow was beyond the reach of the ripper head and therefore the miner could not have been used to oring it down. 

Westmoreland ignores the evidence, however, that the miner could have been elevated onto blocks that would have given the ripper head sufficient height to 

have reached the brow. While Westmoreland also claims that it would not have 

been safe to have placed roof bolts in the area between the last open crosscut 

and the second last crosscut in the old No. 2 entry in order to properly position the miner, no specific safety problems have been cited. To the contrary, 

MSHA inspector Homer Gross opined that the continuous miner could have been 

safely used to bring down the brow. Under all the circumstances, it is clear 

that Westmoreland has not met its burden of proving either the "greater hazard" 

or "impossibility of compliance" defense. The cited violation is accordingly 

sustained. 

136 
Whether that violation was "significant and substantial", however, depends 

on whether, based on the particular facts surrounding the violation, there 

existed a reasonable likelihood that the hazard contributed to would have re;-

sulted in an injury of a reasonably serious nature. Secretary v. Cement Division, National Gypsum Co., 3 FMSHRC 822 at 825. The test essentially involves 

two considerations, (1) t.he probability of resulting injury, and (2) the ·seriousness of the resulting injury. Even considering only the testimony from the 

operator's witnesses, it is clear that a substantial overhanging brow existed 

in the cited entry in which at least a hairline fracture or separation could be 

observed. According to these witnesses, the brow protruded from 10 to 31 inches 

from the rib for as long as 22 feet of the entry. Even had the fracture or sep-

. aration not been observed, Westmoreland's expert witness, Dr. Syd Peng, conceded 

that fractures may very well exist that are not visible. In addition, the overhanging brow in this case was sufficiently obvious to have attracted the attention of at least six experienced miners who were sufficiently concerned to have 

all made efforts to bring it down with a slate bar. It may reasonably be inferred therefore that all of these miners, at some point in time, perceived the 

brow as a serious hazard. Under all the circumstances, I conclude that the violation presented a high probability of serious or fatal injuries. There indeed 

existed a reasonable likelihood that the hazard of a roof fall would occur, 

resulting in injuries of a serious nature. Accordingly, I find the. violation 

to have been "significant and substantial". For the same reasons, I find that 

the violation reflected a high level of gravity. 

I further find that the violation was the result of the unwarrantable failure of the operator to comply with the law. A violation is fhe res.ult of "unwarrantable failure" if the violative condition was one which the operator knew or 

should have known existed or which the operator failed to correct through indifference or lack of reasonable care. Zeigler Coal Co., 7 IBMA 280. In this regard, the n~gligent acts of section foreman Robert Hairston are attributable-to 

the operator. Secretary v. Ace Drilling Co, Inc., 2 FMSHRC 790 (1980). It is 

undisputed in this case that Hairston had been warned about the overhanging brow 

at issue, had seen the condiUon, and had apparently deemed it sufficiently dangerous to have made efforts on his own to bring it down with a slate bar. The 

very existence of this brow as described by the operator's own witnesses clearly 

constituted a violation·of the cited standard. It may reasonably be ·inferred, 

therefore, that Hairston had knowledge of the violative condition but failed 

to correct that condition through indifference or lack of reasonable care. 

Zeigler Coal Co., supra. The violation was accordingly the result of the unwarrantable failure of the operator to comply with the law and, indeed, of gross 

negligence. Accordingly, I affirm the order at bar •. 

In determining the amount of civil penalty that is appropriate in this 

case, I also consider that the operator is large in size, that it has a fairly 

substant:l.al history of violations, and that the penalty here imposed would not 

affect its ability to stay in business. Within this framework of evidence, I 

find that a penalty of $8000 is appropriate. 

137 
Order 

Order No. 886894 is affirmed and the contest 

A civil penalty of $8000 shall be paid by the Wes 

30 days of the date of this decision. 

Distribution: By certified mail. 

John A. MacLeod, Esq. and Orin H. Kutinplan, 

Avenue, N.W., Washington, DC 20036 

of that order\is dismissed. 

oreland Coalr,Company within 

l 

f! 

ii 

I 

1100 Connecticut 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 

Wilson Boulevard, Arlington, VA 22203 

138 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

CHARLES J. FRAZIER, ) 

JAN 19 1983 

) COMPLAINT OF DISCRIMINATION 

Complainant, ) 

) DOCKET NO. WEST 81-329-D 

v. ) 

) 

MORRISON-KNUDSEN, INC., ) 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~---

Appearances: 

Gary Overfelt, Esq. 

417 Petroleum Building 

Billings, Montana 

for Complainant 

Earl K. Madsen, Esq. 

1717 Washington Avenue 

Golden, Colorado 

for Respondent 

Before: Judge John J• Morris 

DECISION 

Complainant Charles J. Frazier, (Fra~ier), brings this action on his 

own behalf alleging he was discriminated against by his employer, 

Morrison-Knudsen Company, Inc., (MK), in violation of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et~· 

The applicable statutory provision, Section lOS(c)(l) of the Act, now 

codified at 30 U.S.C. 815(c)(l), in its pertinent part provides as 

follows: 

No person shall discharge or in any other manner discriminate 

against ••• or otherwise interfere with the exercise of the 

statutory rights of any miner ••• because such miner ••• has 

filed or made a complaint under or relating to this Act, including a complaint notifying the operator or the operator's 

agent, or the representative of the miners ••• of an alleged 

danger or safety or health violation ••• or because such miner 

••• has instituted or caused to be instituted any proceeding 

13S 
under or related to this Act or has testified or is ·about 

to testify in any such proceeding, or because of the exercise by such miner ••• on behalf of himself or others of 

any statutory right afforded by this Act. 

After notice to the parties a hearing on the merits was held in 

Billings, Montana on June 7-8, 1982. 

The parties filed post trials briefs. 

ISSUES 

The threshold issues are whether complainant, as a management 

supervisor, is within the coverage of the Act and, further, whether the 

complaint was timely filed. 

The issue on the merits is whether respondent discriminated against 

complainant, a safety supervisor, in violation of the Act. 

COVERAGE 

Respondent contends that complainant does not come within the 

coverage of the Act since he is a member of management. 

The uncontroverted facts establish that complainant was employed as a 

safety specialist in respondent's surface coal mine operation (Tr. 99, 

199). The answer to the coverage issue is found in the Act itself where a 

"miner" is unambiguously defined as any individual working in a coal or 

other mine, Section 3(g). Management personnel working in a coal mine are 

therefore "miners" within section 105(c)(l) and they are accordingly 

entitled to the protections afforded therein. Accord: Miller v. Fe·deral 

Mine Safet and Health Review Connnission, 687 F. 2d 194, (7th Cir August 

1982 • Eagle v. Southern Ohio Coal Company, 2 FMSHRC 3728, December 1980, 

(Merlick, J.). Herman v. IMCO Services, 4 FMSHRC 1540, August 1982 

(Morr~s, J.). 

The motion to dismiss for lack of coverage is denied. 

TIMELY FILING OF COMPLAINANT 

MK asserts the complaint of discriminatory discharge was not timely 

filed. The discharge occurred on April 28, 1981 and the first notice MK 

received was when Frazier filed his amended petition in this case on August 

25, 1981, approximately four months later. 

140 
A review of the sequence of events is necessary to consider this · 

issue. On April 10, 1981, Frazier was permanently assigned to the swing 

shift (Tr. 46, .74). He considered this assignment to be discriminatory and 

on April 24, 1981 he filed a discrimination complaint with MSHA. Frazier 

alleged his transfer was motivated by four different 'incidents. He alleged 

these occurred on September 25, 1980, September 30, 1980, April 6, 1981, 

and April 7, 1981. 

On May 12, 1981, in the process of investigating his discrimination 

complaint, MSHA took a 12 page handwritten statement from Frazier 

(Connnission File). 

On June 15, 1981 MSHA advised Frazier that on the basis of their investigation they concluded that no violation of Section 105(c) had 

occurred. On July 14, 1981 Frazier appealed to the Corrnnission. On August 

26, 1981 an "amended complaint" was filed before the Corrnnission alleging 

Frazier was unlawfully discharged on April 28, 1981 for engaging in a 

protected activity. 

DISCUSSION 

It has been held that none of the filing deadlines in the 

discrimination section of the Act are jurisdictional in nature. Christian 

v. South Hopkins Coal Company, 1 FMSHRC 126, 134-136 (1979), Bennett v. 

Kaiser Aluminum & Chemical Corporation, 3 FMSHRC 1539, (1981). 

All of the above facts indicate that Frazier was pursuing his 

discimination complaint in a timely manner. To support MK's argument would 

be to exalt form above substance. 

The motion to dismiss for· untimely filing of the complaint is denied. 

COMPLAINANT'S EVIDENCE 

Complainant's evidence consists of the testimony of Charles J. 

Frazier, Jewell Davisson, and numerous exhibits. 

Charles J. Frazier was employed with Morrison•Knudsen as a safety 

supervisor 2 on April 24, 1979 (Tr. 14, 19, 56). He was terminated April 

28, 1981 (Tr. 14). Frazier's initial assignment was at the MK mine in 

Kennnerer, Wyoming. At that location Frazier reported to Gary Kilstrom, the 

senior safety supervisor (Tr. 58). Frazier's relationship with Kilstrom 

developed into a personality conflict (Tr. 58). Frazier was not as severe 

as Kilstrom (Tr. 62-63). 

Frazier was subsequently transferred to the MK Absoloka Mine in 

Billings, Montana where he worked under Jed Tayl?r, mine manager (Tr. 19). 

He also reported to Richard Daly in the home office. Daly was in charge of 

safety and environmental services (Tr. 19). 

In February 1980, Frazier was restricted to his office (Tr. 141). 

141 
In March 1980 an MSHA audit found MK in violation of the dust 

standard (Tr. 32,· 125, 126). Frazier complained that MK's dust sampling 

program was inadequate (Tr. 28). Frazier was reprimanded numerous times 

and Jed Taylor reprimanded him about the dust and noise violation. Taylor 

told Frazier that we got away with it and keep your nose out of it (Tr. 

31-32). It wasn't Frazier's responsibility to take dust samples (Tr. 

127). 

In September 1980 MK had a ground control problem in pit No. 4 (Tr. 

27-28). MSHA inspector Clayton issued a citation and told Taylor (mine 

manager) what he expected to be done (Tr. 28). Taylor made the remark that 

"that's the way the Good Lord meant it to be and there wasn't nothing he 

could do to change it." Frazier felt this was a poor safety attitude and 

behavior (Tr. 28). 

In September 1980 Frazier reported an unsafe condition to Wunderlick 

(mine superintendent) in pit No. 4 (Tr. 33). Wunderlick told Frazier he 

wasn't to be in the pit (Tr. 33). 

In December 1980 Frazier gave a company safety citation to Chaps Lix 

in a local bar (Tr. 89, 158). The union complained and Taylor was upset 

stating that company business shouldn't be conducted in a bar (Tr. 101). 

Frazier said he'd apologize to Lix for giving it to him in a bar but he 

would 'nt apologize for the citation. He told Taylor he could "eat it" (Tr. 

101). 

On one occasion Taylor told Frazier that his [miner] training was 

inadequate (Tr. 35). Frazier felt the Company's facilities and training 

aids were inadequate. Frazier made requests for teaching aids from when he 

arrived until he ceased to conduct miner training which was about four 

months before he was terminated (Tr. 37). Frazier received no response 

from his supervisors and no aids except a projector (Tr. 37). The only 

text books he had were those he had brought from MSHA (Tr. 38). 

Frazier and Doug Harper, an MSHA inspector, have a personality 

conflict. On one occasion Frazier flunked Harper in a mine rescue course. 

Harper felt Frazier didn't have sufficient education in safety and health 

(Tr. 40). 

In December, 1980, and January, 1981, Frazier was aware that MK and 

Local 400 of the Operating Engineers were negotiating a labor contract (Tr. 

40-41). Frazier hadn't made his union preference known to other miners 

except about a year before his discharge he told Chaps Lix that he felt for 

142 
the money that we were paying for dues and initiation into the Operators 

Local 400, they weren't getting proper representation (Tr. 42, 43). 

Frazier did not express any union preference after being advised by MK 

policy of the supervisors role (Tr. 42, 43). Frazier attended a meeting in 

January 1981 concerning the necessity of supervisors remaining neutral (in 

the conflict between the unions) (Tr. 81, 82). 

Frazier went to the home office in Boise in midwinter, 1981 (Tr. 41, 

42). Taylor said Frazier was being sent to the home office because of a 

complaint he (Taylor) had received from the Operating Engineers (Tr. 76). 

On April 7, 198.1 Frazier talked to Dean Gilson in the home office. 

Gilson told Frazier he'd have to get along with Taylor or his career would 

be in jeopardy (Tr. 44, 45). Frazier replied he wouldn't take any guff off 

of Taylor and "to hell with his· career" (Tr. 44-45). Frazier isn't overly 

fond of Taylor (Tr. 149). 

On April 8, 1981 Frazier told fellow safety superviso~ Barnett that he 

had no recourse but to go to MSHA (Tr. 46). 

On April 10, 1981 1; Frazier was transferred to the swing shift 

(Tr. 46). Frazier was told that Barnett was going to do the training. 

They said Frazier wasn't qualified and Frazier agrees he wasn't qualified 

( Tr • 46 , 4 7) • 

On April 11 Frazier went to the home of MSHA inspector Dick Clayton. 

At that time he listed 12 violations (Tr. 45, 46).· [A detailed analysis of 

the complaints is set forth, infra, pages 13-14.] An MSHA inspection took 

place on April 24, 1981 (Tr. 47). 

About this time Frazier posted the NLRB election decision on the union 

bulletin board (Tr. 96, R3). 

·on April 28, 1981 Taylor called Frazier to the office and accused him 

of preferring one union over the other (Tr. 105). Frazier said he wanted 

to see his accuser. At this juncture Taylor terminated Frazier (Tr. 105). 

Frazier then told Taylor he hadn't seen the last of him. Further, he said 

he had turned MK into MSHA. In addition, Frazier said he had filed a 

discrimination complaint (Tr. 107). · 

1/ Frazier's testimony is that he was put on the straight swing shift on 

April 14 but the manag~r's memorandum of transfer is dated April 10, 1981 

(R2). Frazier was already on the swing shift and management's directive 

established that the shift would be "non rotating". I accordingly consider 

Friday, April 10th, 1981 as the first date Frazier knew he would continue 

on the swing shift. 

143 
RESPONDENT'S EVIDENCE 

Respondent's evidence consists of the testimony of William Harper, 

Elwood Burge, Robert Whempner, David Camden, Robert Wunderlick, Jeffrey 

Barnett, Howard Clayton, Bruce Zimmerman, George (Chaps) Lix, James 

Vanderslott, Dean Gilson, Jed Taylor and numerous exhibits. 

Frazier's first assignment was at the Kemmerer, Wyoming mine where he 

reported to Gary Kilstrom (Tr. 407, 417). Problems with Frazier at the 

Kemmerer Mine included tardiness, an odor of alcohol, and failure to stay 

awake (Tr. 418). 

MSHA inspector Doug Harper, a safety trainer, first inspected MK in 

1979. He evaluated the training and except for first aid he concluded that 

the miner training was insufficient (Tr. 175-180). Charles Frazier was 

conducting the training (Tr. 76). Harper prepared a written report which 

was dated December 18, 1979 (Tr. 178, 179, R7). The final report and 

conclusion was issued on January 9, 1981 by Walter R. Schell, MSHA training 

administrator located in Denver, Colorado (Tr. 178, R7). The MSHA report 

states, in part, that use should be made of the large body of information, 

visuals, films and tapes available (R7). 

Harper had never received any training from Frazier although he had 

spent four to five hours monitoring Frazier's class as an observer (Tr. 

186, 195). 

On May 31, 1979 Bruce Zimmerman, MK's training manager, in a 

interoffice memorandum to his supervisors reviewed the on going training 

and program development to meet the requirements of MSHA at three MK mines 

(Tr. 357, Rl3). The memorandum states in part: "In addition Charlie 

[Frazier] has a vast resource library of overheads, handouts and written 

material" (Rl3, Tr. 367, 368). 

Dean Gilson, MK's manager for safety and training, asked that the MSHA 

report be withheld until MK could improve its training (Tr. 426). Bruce 

Zimmerman was sent to work with Frazier in an effort to change the negative 

comments on his performance (Tr. 427). At a meeting on January 9, 1980 

Zimmerman related the feelings of George Herman and Doug Harper (MSHA 

personnel) to Frazier (Tr. 364). Zimmerman further suggested that Frazier 

should be less confrontive and less antagonistic. Frazier agreed (Tr. 

365). About the first of December, 1980, the local union, Operating 

Engineers Local 400, was negotiating with the company over the terms of 

labor contract (Tr. 322). At this time workers complained to David 

Camden, a union stewart, about Frazier's efforts to influence union 

representation at the mine. Frazier was advocating that the MK workers 

weren't getting representation from Local 400. Further, Frazier was 

advocating that Local 400 should be kicked out and the workers should vote 

in the United.Mine Workers (UMW) (Tr. 261, 332). There were approximately 

15 such complaints over an eight to ten month period (Tr. 264-265). Camden 

and Mike Pascal reported these conversations to David Whempner, an official 

of Local 400 (Tr. 226, 232-233, 263). At that time Whempner complained to 

mine manager Jed Taylor, who suggested that the matter be tabled (Tr. 

233-234). On the same day Whempner talked to worker Chaps Lix who told 

144 
Whempner that such conversations were taking place in neighborhood bars 

(Tr. 234). Whempner again told Jed Taylor to have it stopped (Tr. 235). 

On January 6, 1981 Elwood Burge, MK's assistant director of Industrial 

Relations, came to the Absoloka Mine from the home office in Boise, Idaho. 

The visit was because of complaints MK was receiving from Whempner that 

Frazier was showing his preference for the United Mine Workers over Local 

400 (Tr. 200-201, 205-208, 322). There were a number of meetings 

discussing the company policy that MK was to remain neutral between the two 

unions. Frazier was present at the January 6, 1981 meeting. Whempner, a 

union official and Taylor, mine manager, identified Frazier at the meeting 

(Tr. 207-208, 276-277). 

A week or two later Camden told Whempner that Frazier and Lix had been 

in an argument in a bar about the union. At that time F·razier wrote 

Chaps Lix a company safety violation in a local bar (Tr. 235). Lix brought 

the citation to Camden. Whempner in turn went to the mine and "raised 

hell" with the Board of Adjustments and threatened Jed Taylor with an NLRB 

unfair labor charge. Specifically, the stewards had been telling Whernpner 

that Frazier was telling everybody that Local 400 had given away over half 

of their labor contract. In addition to "raising hell" with Jed Taylor 

Whempner contacted his boss, Vince Bosch, in Helena, Montana and "raised 

hell" with him (Tr. 238). Bosch indicated that unfair labor charges would 

be filed by Local 400 against MK (Tr. 240). [No such charges were in fact 

ever filed (Tr. 241).] 

Vince Bosch, Whempner's boss, contacted Burge (Industrial Relations 

for MK), after Whempner complained. The problems ceased. Frazier was 

temporarily transferred to the home office in Boise, Idaho on January 28, 

1981 where he remained until March 10, 1981 (Tr. 241, Rl). Problems for 

Whempner resumed when Frazier returned to the mine (Tr. 241-242). 

After he returned from Boise Taylor assigned Frazier to the second 

shift (Tr. 468). The shift assignment was no different from any other 

assignment (Tr. 468). The notice to·Barnett and Frazier dated April 10, 

1981 states "It is not beneficial to have rotating shift in the Safety 

Department at this time because of our busy schedule and various activities 

such as training sessions and meetings. Therefore, we will continue to 

operate on "straight" shift until further notice. Should you have any 

question on this, please do not hestitate to call me" (R2). 

In the meantime the United Mine Workers had petitioned the NLRB 

requesting an election between the UMW and Local 400 (R3). The order 

directing the election was entered on April 13, 1981 and the notice was 

timed stamped as received by MK on April 16, 1981 (R3). Shortly thereafter 

union steward Camden called Whempner and told him that Frazier was passing 

around the notice of the election at the mine site and urging the miners to 

vote for the "right outfit" (Tr. 243, 401-403). Whempner "raised hell" 

(Tr. 244-245). Whempner's complaint were that Frazier was passing the 

election notice around in the lunchroom and change room (Tr. 248). The 

145 
NLRB order wasn't posted on the union bulletin board until about three or 

four days later (Tr. 269). Whempner was in a huff because Frazier, a 

company man, was passing the election around before the union knew about it 

(Tr. 256). Whempner could handle criticism of himself but he couldn't 

discipline a company man (Tr. 251-252). 

James Vandersloot testified that Frazier came into the lunchroom with 

the NLRB order and he said they should vote for the right out fit so "you 

can get some representation out there" (Tr. 403). At this time the whole 

swing shift was in the lunchroom (Tr. 403). 

Whempner again tried to get Frazier removed and he called Burge, 

(Industrial Relations), who told him to review the problem with mine 

manager Jed Taylor (Tr. 209-210, 246). 

Robert Wunderlick, the mine superintendent, told Taylor that Frazier 

was in the lunchroom with the [NLRB] petition. Further, he related to 

Taylor that Frazier was claiming the contract was no good, that there ~as 

going to be a new election, and that everything that had been done was no 

longer good (Tr. 469-470). Taylor called his superiors in Boise who told 

him to irmnediately fire Frazier. Taylor said he wouldn't fire Frazier 

until he verified the report of Frazier's activities (Tr. 470-471). Taylor 

asked Wunderlick to double check the facts. He did. Camden told 

Wunderlick that Frazier had presented the paper to the workers (Tr. 278). 

Taylor had called his supervisors at the home office because home office 

concurrence is necessary to discharge a safety supervisor (Tr. 410). 

Burge, (Industrial Relations) and Dean Gilson, manager of safety and 

training, concurred with Taylor that his decision to terminate was 

appropriate (Tr. 210-216, 435-436). 

Frazier was called to the office on the same day and terminated for 

union involvement and for not following instructions (Tr. 470-471). He had 

been told three or four times to remain neutral (Tr. 474, 486-487). 

Frazier asked Taylor who was,accusing him (Tr. 472). 

When he was terminated Frazier said MK hadn't heard the last of him 

(Tr. 477). Taylor didn't know of any MSHA charges brought by Frazier (Tr. 

478). 

The safety record at the Absolka mine is excellent. It has two years 

without a lost time acident for 500,000 man hours (Tr. 438-440, Rl9). The 

mine incident rate is 0.0 compared with the average for the coal industry 

of 3.5 (Tr. 440, R20). 

DISCUSSION 

The Cormnission established the general principles for analyzing discrimination cases under the Mine Act in Secretary ex rel. Pasula v. 

Consolidation Coal Co., 2 FMSHRC (October 1980), rev'd on other grounds 

146 
sub nom, Consolidation Coal Co., v. Marshall, 663 F. 2d 1211, (3d Cir. 

1981), and Secretar ex rel Robinette v. United Castle Coal Co., 3 FMSHRC 

803 (April 1981 • In these cases the Commission ruled that a complainant, 

in order to establish a prima facie case of discrimination bears a burden 

of production and persuasion to show that he was engaged in protected 

activity and that the adverse action was motivated in any part by the 

protected activity. Pasula, 2 FMSHRC 2799-2800; Robinette, 3 FMSHRC at 

817-818. 

At this point is appropriate to consider the status of Frazier's 

activities. The vast majority of discrimination claims arising under the 

Act are generated by miners engaged in duties other than those of a safety 

inspector. But I find nothing in the text of the Act nor in the 

legislative history that indicates Congress intended to exclude a safety 

inspector from the protection of the discrimination portion of the Act. An 

operator's safety inspecto.r bears an important function. in helping fulfill 

the purposes of the Act since his duties will ordinarily seek to promote 

safety and health. Under Pasula and Robinette and their progeny I conclude 

that good faith complaints of unsafe and unhealthy conditions by a safety 

inspector in the ordinary course of his duties are protected under the 

Act. 

Having resolved Frazier's status we will go to the Commission's 

further ruling in Robinette: to rebut a prima facie case a operator must 

show either that no protected activity occurred (in view of the ruling as 

to Frazier's status MK cannot establish that defense) or that the adverse 

action was in no part motivated by protected activity, 3 FMSHRC 817-818 and 

N. 20. If an operator cannot rebut the prima facie case in the foregoing 

manner it may nevertheless defend by proving that it was also motivated by 

the miner's unprotected activities and that it would have taken the adverse 

action in any event for the unprotected activities alone, Pasula, 2 FMSHRC 

2799-2800. 

The operator bears an intermediate burden of production and persuasion 

with regard to these elements of defense. Robinette, 3 FMSHRC at 818 N. 

20. This· further line of defense applies only in. "mixed motive" cases, 

i.e., cases where the adverse act.ion is motivated by both protected and 

unprotected activity. The Commission made clear in Robinette that the 

ultimate burden of persuasion does not shift from the complainant in either 

kind of case. 3 FMSHRC at 818 N. 20. The foregoing Pasula-Robinette test 

is based in part on the Supreme Court's articulation of similar principles 

in Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, U.S. 274, 285-87 

( 1977). 

In Sec. e·x rel. Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (November 

1981), pet. for review filed, N~. 81-2300 (D.C. Cir. December 11, 1981), 

the Commission affirmed the Pasula-Robinette test, and explained the 

following proper criteria for analyzing an operator's business justification for adverse action: 

147 
Commission judges must often analyze the merits of an 

operator's alleged business justification for the 

challenged adverse action. In appropriate cases, they may 

conclude that the justification is so weak, so implausible, 

or so out of line with normal practice that it was a mere 

pretext seized upon to cloak discriminatory motive. But such 

inquiries must be restrained. 

The Commission and its judges have neither the statutory 

charter nor the specialized expe~tise to sit as a super 

grievance or arbitration board meting out industrial 

equity. Cf. Youngstown Mines Corp., 1 FMSHRC 990, 994 (1979). 

Once it appears that a proffered business justification is 

not plainly incredible-or implausible, a finding of pretext 

is inappropriate. We and our judges should not substitute 

for the operator's business judgment our views on "good" 

business practice or on whether a particular adverse action 

was "just" or "wise." Cf. NLRB v. Eastern Smelting & Refining 

Corp., 598 F. 2d 666, 671 (fst:"cir. 1979). The proper focus, 

pursuant to Pasula, is on whether a credible justification 

figured into motivation and, if it did, whether it would have 

led to the adverse action apart from the miner's protected 

activities. If a proffered justification survives pretext 

analysis ••. , then a limited examination of its substantiality 

becomes appropriate. The question, however, is not whether 

such a justification comports with a judge's or our sense of 

fairness or enlightened business practice. Rather, the 

narrow statutory question is whether the reason was enough 

to have legitimately moved that operator to have disciplined 

the miner. Cf. R-W Service System Inc., 243 NLRB 1202, 1203-

04 (1979) (articulating an analogous standard). 

3 FMSHRC at 2516-17. Thus, the Commission first approved restrained 

analysis of an operator's proffered business justification to determine 

whether it amounts to a pretext. Second, the Commission held that once it 

is determined that a business justification is not pretextual, then the 

judge should determine whether "the reason was enough to have legitimately 

moved the operator" to take adverse action. ' ' 

By a "limited" or "restrained" examination of the operator's business 

justification the Commission does not mean that an operator's business 

justification defense should be examined superficially or automatically 

approved once offered. Rather, the Connnission intends that its Judges, in 

carefuly analyzing such defenses, should not substitute his business 

judgment or sense of "industrial just ice" for that of the operator. As the 

Commission recently stated "our function is not to pass on the wisdom or 

fairness of such asserted business justifications but rather only to 

determine whether they are credible and, if so, whether they would have 

motivated the particular operator as claimed." Bradley v. Belva Coal Co., 

4 FMSHRC 982, 993 (June 1982). 

148 
With the Conunission directives in mind we will examine the proferred 

business justification asserted by MK. The defense is that Frazier was 

fired for showing a preference for the United Mine Workers over Local 400. 

As herein noted I find MK's version of the facts to be generally credible. 

The credibility of the business justification is established by activities 

predating Frazier's termination. Burge came to the Absoloka Mine and all 

supervisors were told to remain neutral. This visit came about because MK 

was receiving complaints from the union official. After this Frazier was 

transferred to the home office. Taylor, the mine superintendent told 

Frazier he was being transferred because of complaints by Local 400. Prior 

warning of unsatisfactory conduct is one of the criteria mentioned in 

Bradley v. Belva Coal Company. I accordingly conclude MK's business 

justification is clearly credible. Having made that determination the next 

issue is whether MK was motivated as claimed: Yes. The mine manager heard 

about Frazier's actions involving the NLRB petition. He had the facts 

verified by Wunderlick and Frazier was terminated that very afternoon. In 

the midst of two unions struggling to represent its workers company 

neutrality would be normal practice. In short, Frazier was fired for 

violating MK policy. 

Frazier's post trial brief asserts that MK discriminated against him 

when he was transferred to the swing shift and thereafter terminated. 

A vital element of· a prima facie case is a showing that adverse action 

was motivated in any part by the protected activity. If there is no direct 

evidence then the Conunission suggests four criteria to be utilized in 

analyzing the operator's motivation with regard to adverse personnel 

action. This criteria includes knowledge of the protected action, 

hostility toward the protected activity, coincidence in time between the 

protected activity and the adverse action and disparate treatment of the 

complainant, Johnny N. ·Chacon v. Phelps Dodge Corporation.· 

Guided by the above case law we will review Frazier's initial 

contention that he was transferred because he was overzealous in the enforcement of safety regulations. I disagree with Frazier's position. I do 

not find it credible, and no evidence supports the view, that MK waited 

until April 1981 to take adverse action against Frazier for events in March 

1980 (dust sampling program), in September 1980 (problems in pit #4), and 

December 1980 (citation issued in a bar). 2/ · 

In short, there is no coincidental timing as required by Johnny N. 

Chacon v. Phelps Dodge. 

Frazier complaints about the miner training aids, even if true, could 

hardly have affected MK's action since Frazier had been transferred from 

the training duties four months before he was terminated (Tr. 37). 

2/ The events of April 7, 1981 is hereafter discussed. 

149 
Frazier's evidence is not a model of clarity and the events of April 

7, 1981 require special review. Frazier's only evidence is that on April 

7, 1981 he talked to Dean Gilson in the home office. Gilson told Frazier 

he'd have to get along with manager Taylor or his career would be in 

jeopardy. Frazier replied he wouldn't take any guff off of Taylor and "to 

hell with his career" (Tr. 44, 45). Dean Gilson testified in the case but 

neither party inquired into the reason for Frazier's telephone call on or 

about April 7, 1981 (Tr. 405-444). There is accordingly no evidence 

establishing that Frazier was engaged in any protected activity on or about 

that date. · 

Frazier's post trial brief asserts that there is evidence that 

Wunderlick [superintendent] ordered Frazier to stay out of safety matters 

in the pit. This event apparently occurred in September, 1980. It 

occurred when Frazier reported an unsafe condition to Wunderlick. Frazier 

took Rob Williamson, the then senior safety officer, down to the pit. 

Wunderlick told Frazier he wasn't to be in the pit (Tr. 33). 

This event, like the other 1980 incidents, lacks coincidental timing 

as required by Johnny N. Chacon. 

Frazier's post trial brief further asserts that whenever a safety 

violation was issued Frazier was blamed for reporting the violation to 

MSHA. I have carefully reviewed the record and absolutely no evidence 

supports this proposition. 

Frazier's post trial brief states there are indications that both 

Taylor and Wunderlick were upset because Frazier went over their heads and 

contacted the home office about safety. Even if Taylor and Wunderlick were 

"upset" with Frazier the record fails to establish the prerequisite 

coincidental timing. 

The evidence here shows that Frazier was restricted to his office in 

March 1980. On this point I credit Wunderlick's uncontroverted testimony 

that this restriction came about because Frazier wasn't abiding by orders 

to work out matters of safety with supervisors (Tr. 284, 296). Further, 

this event occurred in early 1980 and like the other incidents I am not 

persuaded that it generated adverse personnel action approximately a year 

later. 

Frazier's brief argues that, although there is some dispute as to the 

exact working, it is clear that Dean Gilson reprimanded Frazier for his 

"demanding attitude." 

150 
I disagree· with Frazier's construct ion of the evidence. It is not 

indicated that Gilson reprimanded Frazier. Gilson testified Frazier didn't 

work well with management and he was extremely demanding in things he 

wanted done. In any event the evidence fails to establish adverse action 

against Frazier. 

I find all of Frazier's contentions to be without merit. I do not 

find that Taylor's permanent assignment of Frazier to the swing shift was 

to cloak a discriminatory move. Taylor's stated reason was that "it is not 

beneficial to have rotating shift in the Safety Department at this time 

because of our busy schedule and various activities such as training 

sessions and meetings. Therefore, we will continue to operate on 

"straight" shift until further notice." (R2). Independent facts support 

the operator's decision since Barnett, MK's only other safety officer at 

this mine, had taken over the training duties. I further credit Taylor's 

testimony that the shift assignment was no different involving Frazier than 

anyone else (Tr. 468). In short, the proferred business justification here 

is not plain'iy incredible or implausible. 

It should be noted that Frazier engaged in two additional activities 

which have been held to be protected under the Act. One protected activity 

involved Frazier's complaint of discrimination filed with MSHA when he was 

transferred to the swing shift. But the record here fafls to establish 

that MK knew of Frazier's complaint. If MK didn't know that Frazier had 

filed a discrimination complaint then that protected activity could not 

have influenced MK's decision to fire Frazier. 

Frazier also contends he was fired because he filed safety complaints 

with MSHA. 

An in depth review of such complaints is in order. The scenario: the 

day after Taylor made Frazier's swing shift assignment permanent Frazier 

went to the home of Howard R. Clayton, an MSHA inspector (Tr •. 331-332). 

Frazier's complaints to MSHA's Clayton involved ground control, the mining 

plan, dust sampling, excessive noise, dust accumulations, oxygen 

deficiencies, draglirie moving over miners, inadequate fire trainirig, 

superintendent's mining papers, ambulance training, explosives, OSM 

violations for not dewatering pits, improper ground on a 280 B shovel, all 

hoists, transformer, watering work roads, keys to electrical unit, and 

records required to be kept (Tr. 331-345). 

MSHA investigated and for various reasons concluded that Frazier's 

allegations did not support the issuance of any citations except for the 

alleged violation of the fire training regulations, 30 C.F.R. 

151 
77-1100 3/ (Tr. 331-345). A second citation 4 / was issued on the 

day of the inspection, April 27, 1981. This citation did not result from 

Frazier's complaints but was initiated by an MSHA priority directive to the 

inspectors to check guarding underneath new loading shovels (Tr. 333). 

Concerning the filing of the MSHA safety complaints: Frazier's 

argument of discriminatory retaliation fails because no evidence 

establishes that MK knew Frazier was the informant. 

On this record MK could only have learned of the MSHA safety 

complaints from MSHA inspector Clayton, from Barnett, or from Frazier himself. 

Concerning Inspector Clayton: I credit the professionalism of 

Clayton who observed at the hearing that it was against the law to notify 

an operator of the identity of an informant (Tr. 346-347). Further, 

Clayton couldn't recall telling anyone with MK that Frazier was the informant (Tr. 345-346). 

Concerning Barnett: Frazier says he told Barnett about going to MSHA. 

However, no evidence establishes that Barnett connnunicated this information 

to his supervisors. I find Barnett's testimony illustrates the situation, 

namely "I heard from the day I walked on that mine site to [the] day he 

[Frazier] left that at some time or another 'I [Frazier] should file 

charges with MSHA' or 'I'm [Frazier] going to call the feds', ·or 'I'm 

[Frazier] going to call my friends back in Pittsburg' or whatever, and file 

charges. That was just a rhetoric of something that went on all the time" 

(Tr. 354). 

Concerning Frazier himself: Frazier does not claim, before he was 

terminated, to have notified MK supervisors that he was the MSHA informant. 

In fact, Frazier indicates it was he who told Taylor after his termination 

that he was the informant (Tr. 107). 

3/ Citation 827683 alleges as follows: 

There is no record or indication that the mine operator is complying with 

77.1100 of the CFR, in that employees are not being instructed or trained 

annually in the use of firegighting facilities and equipment. 

4/ Citation 827682 alleges as follows: 

The opening under.the Bucyrus Erie 280B shovel located in 004-0 pit did not 

have a guard or cover over it. This allowed access in through the frame of 

the machine to the high voltage collector rings (4160 volts). This is a 

non-compliance of Article 710-44 of the 1975 National Electrical Code. 

152 
In this basic credibility confrontation Frazier objects to the "totem 

Pole" hearsay of his union activities. Further, he complains that no one 

with MK interviewed Chaps Lix whom he asserts was the person responsible 

for making the "original" complaint concerning Frazier's union activities. 

Contrary to Frazier's argument it is not important whether the 

statements concerning Frazier's activities were in fact truthful. The 

vital issue is whether MK could reasonably believe that such information 

was truthful. On the basis of the facts previously stated I cpnclude MK 

could have such a reasonable brief. I further find MK did not seize on 

these events as a pretext to cloak a discriminatory move. 

Further bearing on a resolution of the credibility in this case are 

the facts that Frazier agrees he expressed a union preference although he 

claims this occurred before contrary instructions were issued by MK (Tr. 

43). In addition, direct testimony confirms the event that triggered 

Frazier's discharge: Vandersloot testified Frazier came into the lunchroom 

with the NLRB order and told the men to vote for the "right outfit" so "you 

can get some representation out there" (Tr. 401-403). Frazier's testimony 

itself reflects that he had the NLRB decision (Tr. 96). 

The Connnission does not attempt to count witnesses but I find that 

MK's evidence, a combination of witnesses from management, union, and 

fellow workers, has carried the operator's burden of proof as required in 

David Pasula. In short, I find that MK would have fired Frazier for his 

activities preferring one union over the other regardless of any protected 

activity. 

Frazier's final content ion that no one from MK interviewed Chaps Lix 

lacks merit. There is no obligation on MK to seek out Chaps Lix especially 

where some 15 complaints arose about Frazier's union activities (Tr. 265). 

In addition, I find that union official Whempner who was the person 

complaining of Frazier's activities did, in fact, talk to Lix. This 

occurred at the same time Whempner first went to Jed Taylor in December, 

1980 (Tr. 233-234). 

Since no discrimination occurred in violation of the Act it is unnecessary to consider Frazier's claim for damages. 

Based on the foregoing findings of fact and conclusions of law I enter 

the following: 

ORDER 

The complaint of discrimination is dismissed. 

Judge 

153 
Distribution:· 

Gary Overfelt, Esq. 

Petroleum Building, Suite 417 

Billings, Montana 59101 

Earl k. Madsen, Esq. 

Bradley, Campbell & Carney 

1717 Washington Avenue 

Golden, Colorado !0401 

Gail Lindsay SilIDilons, Esq. 

Cotten, Day & Doyle 

1899 L Street, N.W. 

Washington, D. C. 20036 

154 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES JAN 2 4 1933 

333 W. COLFAX AVENUE, SUITE 400 

. OENVER, COLORADO 80204 

) 

CLIMAX MOLYBDENUM COMPANY, a Division ) 

of AMAX, INC., 

Contestant, 

v. 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

~~~~~~~~~~~~~~~~-) 

Appearances: 

Todd D. Peterson, Esq., Crowell & Moring 

CONTEST OF CITATION PROCEEDINGS 

DOCKET NO. WEST 82-87-RM 

Citation 567341; 12/3/81 

DOCKET NO. WEST 80-453-RM 

Citation No. 566900 

(Consolidated) 

MINE: ·Climax 

1100 Connecticut Avenue, N.W., Washington, D.C. 

For the Contestant 

Richard W. Manning, Esq., Climax Molybdenum Company 

1707 Cole Boulevard, Golden, Colorado 

For the Contestant 

Robert J. Lesnick, Esq., and James H. Barkley, Esq. 

Office of the Solicitor, United States Department of Labor 

1585 Federal Building, 1961 Stout Street, Denver, Colorado 

For the Respondent 

Before: John A. Carlson, Judge 

DECISION AND ORDER 

These two cases were consolidated for decision upon joint motion of 

the parties. Docket WEST 80-453-RM was fully tried upon the merits; WEST 

82-87-RM was not tried, but as shown in the pleadings, involves an 

identical question of law. Upon the parties' representation that the 

underlying facts were the same as those adduced at hearing in WEST 80-453, 

the motion for consolidation for decision was granted. Both cases arose 

out of contests of a 104(a) citation. The citations in both cases alleged 

violation of the mandatory standard published at 30 C.F.R. § 57.20-11. It 

provides: 

Areas where health or safety hazards exist that are not 

innnediately obvious to employees shall be barricaded, or 

warning signs shall be posted at all approaches. Warning 

signs shall be readily visible, legible, display the nature 

of the hazard, and any protective action required. 

155 
The case presents this issue: In parts of the Climax Molybdenum Mine 

where miners are exposed to 0.1 working levels or more of radon daughter 

radiation, do~s the cited standard require the operator to post signs 

warning miners that cigarette smoking, in the mine br outside the mine may 

significantly increase their risk of contracting respiratory cancer? 

Both parties submitted extensive post-hearing briefs. The 

Commission's jurisdiction was stipulated. 

REVIEW AND DISCUSSION OF THE EVIDENCE 

I 

The parties have no significant disagreement as to most of the facts. 

Climax Molybdenum Company (Climax) operates a large molybdenum mine near 

Leadville, Colorado. Radon gas is naturally present in measurable 

quantities in certain underground areas of the mine. The gas which 

emanates from uranium in the ore body or surrounding rock is not itself 

dangerous to miners, but as it decays it liberates radioactive particles 

known as radon daughters. Health authorities recognize that certain of 

these particles cause respiratory cancer when inhaled over prolonged 

periods of time. Consequently, the Secretary has promulgated a number of 

specific mandatory health standards regulating exposure levels to radon 

progeny. These are found at 30 C.F.R. § 57.5-37 through 57.5-47. The 

standards yse the "working level" as the measurement of radon daughter 

exposure,' / Four working level months exposure are permitted in any 

calendar year under 30 C.F.R. § 50.5-38. Other standards prescribe 

sampling techniques, the frequency of testing, and record keeping methods. 

In a non-uranium mine such as Climax, 30 C.F.R. § 57.5-40 requires the 

operator to record the exposure received by all miners working in areas 

where concentrations exceed 0.3 WL. 

None of the radiation standards mention smoking except for 30 C.F.R. 

§ 57.5-41 which provides: 

Smoking shall be prohibited in all areas of a mine where 

exposure records are required to be kept in compliance with 

standard 57.5-40. 

1/ The term is defined at 30 C.F.R. § 57.2 as: 

any combination of the short-lived radon daughters in 

one liter of air that will result in ultimate admission of 

1~3 x 105 MeV (million electron volts) of potential alpha 

energy, and exposure to those radon daughters over a period 

of time is expressed in terms of "working level months" (WLM). 

Inhalation of air containing a radon daughter concentration of 

1 WL for 173 hours results in an exposure of 1 WLM. 

15f) 
The parties agree that Climax mine has a number of areas where 

exposures ~re high enough to require recording of individual miner 

exposure. _! 

The Secretary has never contended that Climax failed to comply with 

any of the specific radon daughter standards. On the contrary, he makes no 

effort to dispute the operator's evidence that it maintains an effective 

computerized system for regulating miner's exposure. He also concedes that 

the north hanging wall area, on the date of inspection, displayed a "no 

smoking" sign in conformity with section 57 .5-41. 

The Secretary contends, however, that scientific data disclose that 

persons who smoke cigarettes and who are also exposed to radon daughters 

experience a far higher incidence of respiratory cancer than do miners who 

do not smoke, or smokers who are non-miners. Moreover, according to the 

Secretary, the incidence of cancer in smoking miners who are exposed to 

radon daughters significantly exceeds the rate predictable from adding the 

incidence observable for non-smoking miners and the incidence for nonminer smokers. In other words, the Secretary maintains cigarette smoking 

and radon daughter exposure interact synergistically to create 

significantly greater probabilities of cancer than one would expect from 

looking at either type of exposure alone, or from the sum of the two. 

The Secretary provided evidentiary support for his position through 

the testimony of Victor E. Archer, M.D., Clinical Professor at the 

University of Utah School of Medicine. Dr. Archer, a Fellow of the 

American College of Preventive Medicine, has specialized in the study of 

the biological effects of radon daughter exposure on humans (Tr. 32). His 

testimony traced the history of epidemiological studies in this country and 

elsewhere which indicate that radon daughter exposure has a linear 

relationship to the incidence of cancer - the greater the exposure, the 

higher the respiratory cancer rate. Studies of uranium miners conducted 

under his direction, he testified, further showed respiratory cancer rates 

were higher among cigarette smokers than non-smokers where radon daughter 

exposures were the same. He presented a graph based upon data obtained 

from his uranium miner stud1es and those of the American Cancer Society 

which investigated the relationship between lung cancer and smoking. 

2/ A stipulation made during the hearing shows that radon daughter 

concentrations monitored in the Climax Mine during the year preceding the 

issuance of the citation ranged from .00 to 5.77 working levels (Tr. 

74-75). Respondent's exhibit 3 shows readings at various locations, 

including the "north hanging wall," which was the area singled out in the 

citation. The highest reading disclosed in the exhibit for that area is 

0.33 working levels, recorded on August 11, 1980. There is no dispute as 

to the exhibits's accuracy. 

157 
The graph compares the incidence of respiratory cancer (in terms of 

incidence rates per 10,000 person years) between uranium miners who smoked 

and who did not smoke in contrast to non-miners who smoked and who did not 

smoke (respondent's exhibit 2). These data disclose, among other things, 

that the rate observed in miners who smoked was six times greater than · 

miners who had never smoked, and ten times greater than for non-miners who 

smoked (Tr. 41). According to Dr. Archer, two Swedish studies inquiring 

into the same areas produced results consistent with his. He further 

asserted that the data establish that the "induction latent period" (the 

time between initial exposure and ultimate onset of cancer) was 

"considerably" shorter ·for smoking miners than for non-smoking miners (Tr. 

45). From the studies and his experience and training he was of th~ 

opinion that for miners exposed to radon daughter concentrations: 

••• the first 25 years the lung cancer rate substantially increased and that the induction latent 

period would be shorter among smokers. (Tr. 47.) 

He further believed that this would be true for exposure levels below the 4 

working level months allowed as a maximum annual exposure under the 

Secretary's radiation rules. In fact, according to Dr. Archer, some cancer 

risk exists at any level of radon daughter exposure, and that risk would in 

all instances be enhanced by smoking (Tr. 57-58). 

In Dr. Archer's opinion, miners should be warned of the effects of 

smoking whenever radon daughter concentrations substantially exceed normal 

ambient air or "background" levels. When questioned regarding the precise 

concentration which should trigger a warning, he responded with this 

specific recommendation: 

Any level one sets is somewhat arbitrary, but I would 

suggest that one-tenth working level would be a reasonable place (Tr. 60). 

This is the proposition upon which the Secretary founds his citation. 

He concedes that the north hanging wall area displayed a "no smoking" sign 

in compliance with standard 57.5-40. Because miners who smoke cigarettes 

at any time or place and also inhale radon decay particles in the min~ 

environment are especially vulnerable to respiratory cancer, the Secretary 

reasons that that hazard must be spelled out to miners. The standard at 30 

CFR § 57.20-11, he maintains, imposes a clear duty upon Climax to post such 

a sign wherever radon readings exceed 0.1 working levels. This is so 

because smoking, when combined with radiation exposure, is a health hazard 

"not immediately obvious to employees," in the words of the standa~d, and 

thus one which-must be emphasized and explained by a warning sign._/ 

3/ The Secretary does not contend that Climax's duty extends beyond the 

giving of a warning; he has not suggested, for example, that compliance 

with any standard demands any sanctions against miners who smoke outside 

the mine. 

158 
Climax relied upon_ the testimony of Dr. Keith J. Schiager, a health 

physicist, to dispute Dr. Archer~s opinion concerning a radon · 

daughter-smoking synergism. Dr. Schiager conceded that over the long-term 

there is a relationship between radon daughters and smoking in that both 

increase the risk of lung cancer (Tr. 123). He asserted, however, that. 

agreement among scientists ends there. No concensus exists within the 

scientific community, he testified, as to the proof of a synergistic 

re.lationship (Tr. 123). 4/ 

Climax also stresses an admission from Dr. Archer that the various 

studies which led him to his conclusions were conducted at a time before 

today's stringent limitations on radon daughter exposure were in ef<ect 

(Tr. 56). Exposures of the studied miners could thus have been many times 

higher than those now permitted at Climax. 

II 

Climax's basic defenses may be surrnnarized as follows: 

(1) The evidence does not prove that risk of respiratory cancer 

associated with radon daughter exposure is increased synergistically by 

cigarette smoking. 

(2) The plain language of section 57.20-11, together with its 

history, show that the standard was not intended to address hazardous 

conduct outside the mine - including smoking at home. 

(3) A comprehensive body of regulations covers the admitted hazards 

arising from radon daughters. At section 57.5-41 these regulations cover 

smoking in radiation areas. Operators are entitled to rely on these 

regulations as encompassing the requirements with respect to smoking as it 

relates to radon daughters. Consequently, the Se~retary cannot properly 

rely upon a "general" regulation such as 57 .20-11 to impose a requirement 

for signs warning against smoking at home. 

III 

In resolving this dispute I do not decide whether the Secretary's 

assessment of the combined smoking and radiation hazard is valid. Such a 

finding is unnecessary to reach a correct result. Therefore, for the 

purposes of this decision, the existence of the hazard is assumed. The 

central issue presented here concerns the cited standard: Does it fairly 

encompass the hazard perceived by the Secretary? For the reasons which 

follow, I hold that it does not, 

4/ However, Raymond Rivera, Climax's occupational health manager at the 

mine, agreed o~ cross examination that there is a synergistic relationship ( Tr • 9 7) • 

159 
In analyzing the scope of the standard which the Secretary seeks to 

apply, we must. first recognize that the enforcement and review processes 

contemplated by the Act are accusatory and adversarial. Thus, while mine 

operators are obliged to comply with every mandatory standard, the language 

of each standard must reasonably convey to the operator the nature of the 

practices or procedures required or forbidden. Diamond Roofing Co., v. 

OSHRC 528 F. 2d 645 (5th Cir. 1976); Phelps Dodge Corp., v. FMSHRC, 681 F. 

2d 1189 (9th Cir. 1982). Put another way, a standard must import reasonable notice of conduct expected. Climax concedes that the standard has 

valid application to non-obvious safety or health hazards originating in 

the mine. The thrust of its claim is that a good faith reading does not 

fairly suggest any obligation to place warning signs in the mine co~cerning 

miners' non-work-related conduct outside the mine. 

Much of the specific argument of the parties centers around the 

relationship between the group of standards which deal specifically with 

radiation, and the more general standard cited by the Secretary. Climax 

stresses those cases arising under the Occupational Safety and Health Act 

which declare that specific standards dealing with a certain subject matter 

must take precedence over those of a more general application. In the same 

vein, Climax argues that by promulgating the discrete body of radiation 

standards beginning at section 57.5-37, the Secretary has worked a species 

of preemption. Operators, that is to say, reading this seemingly com~ 

prehensive collection of standards naturally are lead to believe that they 

need look no further to find all the requirements for radiation protection. 

Climax further suggests that, other considerations aside, the plain words 

of the standard, speaking as they do of "barricades" in addition to warning 

signs, imply that section 57.20-H was intended to apply5solely to 

definable hazards within the posted or barricaded area. _/ 

5/ In a refinement of that argument, counsel for Climax attached to his 

post-hearing brief an excerpt from the proceedings of the Federal Metal and 

Non-Metal Safety Advisory Committee, which recommended adoption of the 

regulation in 1975. According to counsel, the comments of committee 

members show their explicit concern was the protection of miners from 

non-obvious hazards in underground travelways or mined out areas. The 

Secretary objects to this post-trial submission as an improper attempt to 

adduce evidence after the closing of the evidentiary record. While it is 

probable that the Advisory Committee's proceeding (42 Fed. Reg. 5546, 29418 

(1977)) is subject to official notice as an aid to interpretation of the 

standard, I give it no weight because of its content. The hurried 

discussion of the participants is random and superficial, giving few useful clues to the true intended scope of the standard. 

160 
The Secretary contends that the distinctions Climax attempts to draw 

are invalid because the hazard contemplated here is not exclusively a 

radiation hazard, but a unique combination of smoking and radiation 

exposure, and therefore beyond the cognizance of the radiation standards. 

Thus, he contends, the hazard fits squarely within the cited 

"miscellaneous" standard. The Secretary also stresses that every standard 

must be read with an appreciation of the remedial intent of the Act, which 

gives the safety of miners paramount consideration. 

I agree that the existence of a body of regulations dealing wi..th a 

specific class of hazards does not invariably operate to exclude coverage 

of the same sort of hazard by a more general regulation, unless the general 

in some way conflicts with the specific. Also, the remedial aims of the 

Act are beyond cavil. The cited standard must be liberally construed. 

Given the most liberal construction consistent with the constraints of 

due process, however, Climax's arguments must prevail in this case. I am 

simply unable to conclude that a mine operator, even supposing his knowledge of the alleged synergistic effect of smoking and radon daughter 

exposure, could read section 57.20-11 in conjunction with the radiation 

standards and perceive a requirement to post signs in radiation areas of 

the mine to warn miners against smoking outside those areas. The standards, taken together, do not fairly convey such a notion to the most 

prudent and conscientious operator. This is particularly so for the 

following reasons: 

(1) The specific radiation standards do not ignore smoking. Section 

57.5-41 addresses the matter quite clearly. As mentioned earlier, this 

standard requires simple "no smoking" signs in all mine areas where 

exposure records must be kept in compliance with section 57.5-41 (0.3 

working levels). This implies that the Secretary considered the combined 

effects of smoking and radiation exposure, and was satisfied with this mode 

of protection. Moreover, the Secretary predicates his case for signs 

warning against smoking at home on a 0.1 working level threshold. Such a 

level appears wholly inconsistent with the 0.3 level specified in sections 

57.5-40 and 41. Operators may scarcely be expected to read section 

57.20-11 to imply the necessity for more elaborate and intensive warnings 

at a lower level of exposure than does the specific radiation standard 

which speaks directly to the issue of smoking. 

(2) The cited standard identifies no particular hazards. It refers 

to those "[a]n:as where health or safety hazards exist that are not immediately obvious to employees •••• " It is specific, however, concerning 

means of abatement. It names but two: barricades and warning signs. This 

specificity concerning corrective measures may properly be considered in 

determining the intended reach of the standard. Assume that a mine 

operator, through 'its own exploration of the scientific and medical data 

161 
on the relationship between smoking and radon daughter exposure, is 

convinced of a need to warn its miners against smoking away from the mine. 

Would that operator be likely to see any connection between that need and 

the section 57.20-11 requirement for on-site signs? I think not. I mu.st 

agree with Climax that the operator would be inclined to regard the act of 

smoking at home as a unique off-site hazard, and to iook for corrections 

through such common devices as safety meeting presentations, employee 

safety handbook coverage, or paycheck inserts. 

(3) As mentioned earlier, this decision does not purport to ~cide 

whether the Secretary correctly identifies and assesses the 

smoking-radiation hazard. One aspect o·f this issue, however, is material 

to efforts to determine the application of the cited standard. The 

Secretary's expert, Dr. Archer, was commendably frank in acknowledging that 

he was "somewhat arbitrary" in fingering one-tenth working level as the 

trigger point for a warning under section 57.20-11. Nowhere does his 

testimony or any other evidence suggest a general agreement among experts 

that this, rather than some other point, is where the operator's duty 

should commence. As a regulated party, the operator is entitled to some 

concrete guidance in the scientific literature, if not the standard itself, 

as to the radiation level which poses a danger sufficient to necessitate 

worker warnings. It is likely true, as Dr. Archer suggests, that there is 

no "safe" radiation level; and that the minimum radiation level requiring 

warning would of necessity be somewhat arbitrary. The point is, however, 

that under the regulatory scheme of the Act the Secretary bears the duty of 

determining where that level is, and making it known to mine operators. 

The ad hoc 6quality of the determination in this case is all too 

apparent. _/ 

Climax did not violate the cited standard. The citations must therefore be vacated. 

6/ I do not fault the Secretary for his concern over the hazard which he 

perceives. Much of his evidence on the issue is impressive. I must 

suggest, however, that his effort to protect again~t the hazard through an 

existing standard was misplaced. The lack of a finite threshold radiation 

level for warnings illustrates the need for recourse to the rule making 

powers granted by the Act. Use of those powers would provide ample 

opportunity for a full airing of all data, the making of a decision based 

upon that data, and the promulgation of a clear and precise regulation. 

162 
ORDER 

In ~ccord with the findings and conclusions embodied in the narrative 

portions of this decision, the citation in Docket WEST 80-453-RM is ORDERED 

vacated. 

Further, in accord with the findings and conclusions made in Docket 

WEST 80-453-RM, and pursuant to the parties' agreement that the determination in WEST 82-87-RM should be governed by the result reached in WEST 

80-453-RM, the citation in WEST 82-87-RM is likewise ORDERED vacated. 

Consequently, this consolidated proceeding is dismissed. 

Judge 

Distribution: 

Todd D. Peterson, Esq., Crowell & Moring 

1100 Connecticut Avenue, N.W., Washington, D.C. 20036 

Richard W. Manning, Esq., Climax Molybdenum Company 

1707 Cole Boulevard, Golden, Colorado 80401 

Robert J. Lesnick, Esq., Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 

James H. Barkley, Esq., Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 

163 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAM 25 \983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

Complaint of Discharge, 

Discrimination, or 

Interference 

Arnold J. Sparks, Jr., 

Complainant 

v. 

ALLIED CHE~ITCAL CORPORATION, 

Respondent 

Docket No. WEVA 79-148-D 

Shannon Branch Coal Mine 

ORDER REINSTATING DECISION AND ORDER 

OF SEPTEMBER 27., 1979 

On May 20, 1982, the Commission remanded the captioned matter for 

"further proceedings consistent with the court's decision" in UMWA v. 

FMSHRC, 671 F.2d 615 (D.C. Cir. 1982), cert. denied October 1.2, 1982, 

U.S. ---

, Accordingly, on July 1, 1982, the trial judge issued an order to 

show cause~why his decision and order of September 27, 1979 should not 

be reinstated. 

Counsel for the Secretary respo~ded saying he had no objection 

to reinstatement of my finding of discrimination in Allied's refusal 

to pay walkaround compensation.· 1 FMSHRC 1451 (1979). Counsel for 

the operator· suggested reinstatement be stayed pending disposition of 

a petition for certiorari in Helen Mining et. al. The petition for 

certiorari was denied on October 12, 1982. 

In the meantime the American Electric Power Company through its 

coal subsidiaries filed contests designed to provoke relitigation of 

the issue of the applicability of section 103(f) to "spot" inspections. 

Under settled principles of issue preclusion, however, and by the 

specific terms of the Commission's order of remand, relitigation of the 

issue in these matters is foreclosed. 

The record shows that while its appeal was pending counsel for 

Allied assured.the Commission that all but paragraphs 1, 2 and 6 of my 

order of September 27, 1979, had been obeyed. Accordingly, it is 

164 
ORDERED that in compliance with the order of remand paragraphs 1, 2 

and 6 of my order of September 27, 1979, be, and hereby are, REINSTATED 

and the operator pay a penalty of $100 o r before Friday, February 11, 

1983. 

Judge' 

Distribution: 

Frederick W. Moncrief, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Arnold J. Sparks, Jr., General Delivery, Pineville, WV 24874 

(Certified Mail) 

Marsha.11 C. Spradling, Esq., Spillman, Thomas, Battle & Klostermeyer, 

P.O. Box 273, Charleston, WV 25321 (Certified Mail) 

165 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JAN 25 1983 

SECRETARY OF LABOR, 

MINE SAFETY Ai.~D HEALTH 

ADMINISTRATION (MSHA), 

'On behalf of Ray Gann · 

and Dennis Gann 

Complainants 

Complaint of Discharge 

Discrimination or Interference 

v. 

ASARCO, INCORPORATED, 

Respondent 

Docket No: SE 81-34-DM 

Young Mine 

DECISION ON CROSS MOTIONS FOR SUMMARY JUDGEMENT 

All of the pertinent facts in this discrimination case have been 

stipulated and the matter has been presented to me on cross motions for 

summary judgement. At the time in question the two complainants were 

classif~ed as production machine men earning $5. 43 pe;: hour .... Wh~n 

production machine men do the work of drilling and blasting they are 

paid an incentive bonus which is based upon the time they l·;ere engaged 

in drilling and blasting and upon the total tonnage broken by all employees 

in a particular week. 

On July 29, 30 and 31, 1980, federal mine inspector Frank Mouser 

inspected respondent's mine. On the first two days he was accompanied 

by Mr. Ray Gann for two 8-hour works~ifts and on July 31, 1980, Mr. 

Dennis Gann accompanied the inspector for an entire 8-hour workshift. 

The two complainants were paid "walkaround pay" at the rate of a production 

· machine man, and the alleged act of discrimination is they did not get 

the incentive bonus that they otherwise would have earned. Stipulation 

VII states: 

"On the days in question all other employees in the 

machine man classification did drilling and blasting work 

for their entire shifts and received incentive pay 1.n direct 

proportion to the number of hours actually worked in the 

classification." 

It is therefore clear that it cost each of the complainants a certain 

amount of money when they accompanied the inspector during the inspection. 

166 
Section 103(f) of the Act authorizes a representative of the miners 

to accompany an inspector on his rounds and states: 

"Such representative of miners who is also an employee of the 

operator shall suffer no loss of pay during the period of his 

participation in the inspection made under this subsection." 

It is not necessary to resort to legislative history to determine 

that each of these two miners did suffer a "loss of pay during the 

period of his participation in the inspection ••• " There was a violation 

of the Act and a citation would have been appropriate. If a citation 

_ was issued, and I do not know whether one was, then the appropriate 

civil penalty should be considered during the normal assessment procedures 

connected with a citation. Unless and until the Commission rules that 

it is appropriate to bypass the established assessment procedures, I am 

not going to assess civil penalties in discrimination cases. If I were 

to assess a civil penalty in this case, however, it would be nominal 

because the hazard and negligence are of such a low degree. 

It is hereby ORDERED that respondent, Asarco, Inc. pay to Dennis 

Gann the sum of $7.94 */and pay to Ray Gann the sum of $15.88 and that 

each be paid interest at the rate of 10% beginning on the day when they 

normally would have received the incentive pay involved herein and 

continuing until payment is made. / 

Administrative Law Judge 

Distribution: By Certified Mail 

Darryl A. Stewart, Esq., Office of the Solicitor, U.S. Department of 

Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

Mr. Dennis Gann, Riverbend Road, Mascot, TN 37806 

Mr. Ray G~nn, Route 3, Park Street, Strawberry Plains, TN 37871 

Mr. Don H. Walters, Mine Superintendent, ASARCO, Inc., Highway 11-E, 

Strawberry Plains, TN 37871 

C.T. Corporate Systems, 503 Gay Street, Knoxville, TN 37902 

'!:._/ The amounts of pay whe.re stipulated 

167 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JAN 28 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 82-136-M 

Petiti.oner · A.C. No. 48-01181-05040 

v. 

Sweetwater Uranium Project 

MINERALS EXPLORATION COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Robert J. Lesnick, Esq., Office of the Solicitor, U.S. 

Department of Labor, Denver, Colorado, for Petitioner; 

Anthony D. Weber, Esq., Los Angeles, California, for 

Respondent. 

Judge Melick 

This case is before m~ upon a petition for assessment of civil penalty 

under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. secti0n 801, et~·, the "Act", in which the Secretary charges...-the 

Minerals Exploration Company with one violation of the mandatory standard at 

30 C.F.R. § 55.9-3. The cited standard requires that "powered mobile equipment shall be provided with adequate brakes." The general i.ssues before me 

are whether the company has violated the regulatory standard as alleged in 

the petition and, if so, the appropriate civil penalty to be assessed for t·he 

violation. 

I have previously determined in connection with violations alleged under 

the identical standard at 30 C.F.R. § 56.9-3, that the regulatory language 

does not provide sufficient guidance as to what is to be considered "adequate 

brakes." 1/ In order to pass constitutional muster, a statute or standard 

adopted thereunder cannot be "so incomplete, vague, indefinite or uncertain 

that men of common intelligence must r~ecessarily guess at its meaning and differ as to its application." Connolly v. General Construction Co., 269 U.S. 

385,.391 (1926). Rather, "laws [must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act 

accordingly." Grayned v. City of Rockford, 40,8 U.S. 109, 108-109 (1972)" 

See Secretary v. Alabama By-Products Corporation, 4 FMSHRC (December 9, 

1982). 

l:/ Secretary v. Concrete Materials, Inc., 2 FMSHRC 3105 (1980~·; Secretary 

v. A.H. Smith, 4 FMSHRC 1371 (1982) rev. grntd. SeRtember 3, 1982. 

168 
In deciding whether powered mobile equipment is provided with adequate 

brakes under 30 C.F.R. § 55.9-3, the alleged violative condition may appropriately be measured against the standard of whether a reasonably prudent person 

familiar with the factual circumstances surrounding the allegedly hazardous 

condition, including any facts peculiar to the mining industry, would recognize 

a hazard warranting corrective action. Alabama By-Products, supra. 

The one citation at issue in this case (No. 578809) charges as follows: 

A Michigan 280 rubber tired dozer No. Z506 was being operated in the C-3 Pit with inadequate brakes. It would slowly 

stop on level ground at less than 5 miles per hour. The parking 

brake would not hold on level ground with the engine idling and 

transmission engaged. This created a hazard to the operator and 

other persons working in the pit.· 

On the unique facts of this case, I cannot conclude that a reasonably 

prudent person familiar with the factual circumstances surrounding this allegedly hazardous condition would recognize that there was in fact a hazard warranting corrective action within the purview of the cited regulation. This 

determination is based in part upon the failure of MSHA to have followed the 

standardized brake testing procedures approved by industry and accepted by 

MSHA. According to MSHA inspector Merrill Wolford, brake testing standards 

established by the Society of Automotive Engineeers (SAE) then existed for 

rubber-tired construction equipment such as the Michigan 280 dozer here cited 

(See Appendix A attached hereto). Wolford conceded that the SAE tests were 

the only "recognized" tests, but for reasons not made cleat', he devis~d anc 

followed his own testing procedures in this case which admittedly did not meet 

the SAE standards. 2/ By devising and using his own ad hoc testing procedures, 

procedures not shown to have had scientific validity or reliability, the inspector was, indeed, exercising completely arbitrary enforcement practices. 

The actual tests performed by Wolford, first on the parking brake and 

then on the service brakes, were described by him in the following colloquy: 

A. I asked the operator to set the parking brake, to engage 

the transmission on the vehicle with the engine in idle speed, 

and then let off of the service brakes, and the vehicle moved 

forward with no hesitation * * * then I asked the operator --

explained to him what I wanted to do: to have him back up a 

ways. And while he was doing that, I checked the backup alarm 

'!:_/ Wolford testifie.d at one point that it would have been hazardous to have 

followed the SAE tests on the cited machine, but he also testified that he 

nevertheless offered to perform those tests for the operator and was prepared 

to do so. Wolford subsequently recanted and admitted that he did not in fact 

advise the operator that he would perform the SAE tests. I do not find Wolford' s testimony to be credible in light of these inconsistencies. 

169 
-- the audible warning device, rather -~ and asked him to run 

it forward at slow speed and when I waved to him, to set the 

service brakes. Q. Did he do that? A. Yes, sir. Q. When 

you say "slow speed," how fast did he proceed? A. Estimated 

at 3 to 5 mile~ an hour. Q. Now, when you signaled him to set 

the service brake, what then occurred? A. The vehicle slowly 

came to a halt -- what I estimated to be in excess of what 

would constitute adequate brakes -- approximately 25, 30 feet. 

(T. 14-15). 

In light of Inspector Wolford's admission that his own ad hoc testing 

procedures were not the recognized industry and MSHA procedures, that Wolfo~d's testing procedures had no correlation to those recognized SAE procedures and that no evidence has been presented to show that Wolford's testing procedures have any scientific validity or reliability, I cannot conclude 

that a reasonably prudent person would have recognized that the brakes on the 

Michigan 280 loader here cited were inadequate in that they presented a hazard 

warranting corrective action within the purview of 30 CFR 55.9-3. }_/ Accordingly, the operator was denied fair notice of any alleged violation and the 

citation must be vacated. 

Even assuming, arguendo, that the apparent partial admission by safety 

supervisor Casey Conway that the parking brakes were indeed bad (see footnote 

3, supra) and that therefore due process problems stemming from the operator's 

asserted lack of notice may be considered waived, I do not find from the credible evidene-e of record that MSHA has'in any event met its~burdea of ..proving 

that the parking and service brakes on the Michigan 280 loader here cited 

were ·indeed "inadequate". For the reasons previously stated, I reject the unproven testing procedures followed by Inspector Wolford. In any event, I give 

no weight to Conway's apparent admissions that the parking. brakes were bad, 

in light of his testimony that he had no expertise in brake testing procedures 

and that indeed he was then confused by the procedures followed by Wolford. 

3/ Wolford also claims that Casey Conway, the·company safety supervisor, admitted after Wolford's testing that the brakes were bad. Ordinarily, if the 

operator has actual knowledge that a cited condition is hazardous, the problem of fair notice does not exist. Cape and Vineyard Division of the New 

Bedford Gas and Edison Light Company v. OSHRC, 512 F.2d 1148 (1st Cir. 1975). 

However, Conway testified, and credibly I believe, that although he did initially agree with Wolford, he was inexperienced in brake testing and confused 

by Wolford's tests and that indeed he subsequently learned in talking with 

his maintenance "people" that Wolford's tests were indeed improper. Under 

the circumstances, I do not find Conway's apparent admission to be probative 

and, because of his inexperience in the testing of brakes, I would not consider him to have been a qualified person sufficiently "familiar with the factual circumstances s·urrounding the allegedly hazardous condition". Alabama 

By-Products, supra. 

170 
On the other hand, I accord significant weight to the firsthand testimony 

of David Martinez, the man who was actually operating the cited dozer both 

before and after it was cited, that the brakes were working "real good". I 

also accord significant weight to the firsthand testimony of field mechanic 

George Baker, who drove the cited dozer to the shop after it was cited. He 

too found the brakes to be in "very good" condition and upon inspection, found 

no need for repairs. In addition, inspection docmnents produced at hearing, 

buttressed by the testimony of Conway, show that the cited dozer had been subjected to a "150 hour" inspection, including an inspection for brake adjustment, only the day before the citation herein was issued. I find it unlikely 

that the cited dozer would have been returned to service with defective brakes 

after such an inspection. 

Finally, I accept as credible the testimony of mine operations supervisor 

Jerome Connor that he did not personally believe that the brakes on the cited 

dozer were defective and that he agreed to withdraw the dozer to the shop 

only to avoid an argument with Inspector Wolford. Under these circumstances, 

I do not consider either Connor's silence in the face of accusations by the 

inspector or his agreement to withdraw the cited equipment to constitute admissions that either the testing procedures followed by Wolford were proper, 

or that the brakes on the cited equipment were indeed defective. For these 

additional reasons, then, I find that the cited standard was not violated in 

this case and that Citation No. 578809 should be vacated. 

ORDER 

Citation No. 578809 is hereby vacated and 

Distribution: By certified mail~ 

Anthony D. Weber, Esq., Union Oil Company o 

Box 7600, Los Angeles, CA 90017 

Union Oil Center, 

Robert J. Lesnick, Esq., Office of the Solicitor, u •. s. Department of Labor, 

1585 Federal Building, 1961 Stout Street, Denver, CO 802 94 

171 
APPENDIX A - Page l 

SAE 

STANDARD 

RECOMMENDED PRACTICE 

INFORMATION REPORT J~ l/J"J. 

This material appears in tlte 

SAE Handbook 

SAE, 400 COMMONWEALTH DRIVE, WARRENDALE, PA 15096 

172 
1tL BRAKING PERFORMANCE-RUBBER-TIRED 

CONSTRUCTION MACHINES-SAE Jl 152 APRSO 

APPENDIX A ~· Page 2 

SAE Recommended Practice 

41.187 

Repon nf 1he Conttructinn ll<1chinery Tcchnic::al Committee, appro"'·cd July 1976, editorial change April 1980. This document incorporaccs material from SAE J 166. 

J2J6.J.!J7,JJl9. andjlOHU. "'·hich have been discontinued. Rationale stat~ment available. 

/. Scope-~finimum performance criteria for service braking systems, 

. emergency stoppin~ sy~tems, and parking systems for off-highway, rubbertired, self-propelled loaders, dumpers, tractor scrapers, graders, cranes, extd. cavators, and tractors with dozer are provided in this SAE Recommended 

Practice. Refer to SAE J 1057 <July, 1973) and JI 116 (July, 1975) (Sections 

I.I, 1.2, and 2) for machine identification. 

2. Purpo11 

2.1 To define minimum braking system performance for in-service machines. 

NoTE: This is not a design standard. 

2.2 To provide test criteria by which machine braking system compliante 

may be \·erified. 

3. Braking Sjslnn1 

3.1 Sen·ice Braking System-The primary system of any type used for 

stopping and holding the machine. · . 

3.2 Emergency Stopping System-The .system used for stopping in· the 

173 

event of any single failure in the service braking system. 

3.3 Parking System-A system to hold stopped machine stationary . 

NoTE: Common (;omponents_:_ The above braking systems may use com· 

mon components: However, a failure .of a common component shall not 

reduce the effectiveness of the machines stopping capability below the emergency stopping performance as defined in paragraph i.2.1. 

4. Braking Systnn Performance 

4.1 Service Braking System-All tractor scrapers and dum~er5 shall 

have braked wheels on at least one axle of the prime mover and one axle of 

each trailing unit. All other machines shall have at least two braked wheels 

·(one right hand and one left halld). 

4.1.1 STOPPING PERFORMANCE-The service braking system, when tested in 

·accordance with Section 5, shall stop the machine within the distance specified in the appropriate table. 

4.1.2 HOLDING PERFORMANCE-The service braking system shall have capa-

.bility equivalent to holding the machine stationary on a dry swept concrete 
APPENDIX A - Page 3 

41.188 

td. TABLE !-LOADERS, TRACTORS WITH DOZERS-Brake Performance Requirements (SI Units) 

Machine Speed, km/h 

Machine 

Mats 6 10 14 11 22 26 30 34 38 42 

kg 

Service Brake Maximum Stopping Distance-Metres (Emergency Brake Stopping Maximum Stopping Distance-Metres) 

Up to 0.3 1.5 2.9 S.2 7.1 9.2 11.6 14.4 . 17.2 20.4 

16000 (0.9) (4.S) (8.7) (15.6) (21.3) (27.6) (34.8) (43.2) (51.6) (61.2) 

Over - - - 6.6 9.2 12.2 lS.5 19.3 23.5 28.1 

16000 (19.8) (27.6) (36.6) (46.S) (S7.9) (70.5) (84.3) 

le 

32000 

Over - - - 7.9 11.l 14.8 19.0 23.8 29.2 3S.O 

32000 (23.7) (33.3) (44.4) (S7.0) (68.4) (87.6) (lOS.0) 

le 

'4000 

Over - - - 9.1 12.9 17.4 22.S 28.3 34.8 41.9 

64000 (27.3) (38.7) (S2.2) (67.5) (84.9) (104.4) (215.7) 

to 

127000 

Over - ....: - 11.0 lS.8 21.3 27.8 35.0 43.2 S2.2 

127 000 (33.0) (47.4) (63.9) (83.4) (105.0) (129.6) (156.6) 

Brake Performance Requirements (U.S. Customary Units) 

Machine SpHd, mph 

Machine 

Mau, 4 6 8 10 12 14 16 18 20 22 24 26 

lb 

Service Brake Maximum Stopping Distance-Feet 

(Emergency Brake Maximum Stopping Distance-Feet) 

Up to 2 s 8 IS 20 2S 31 38 4S 53 61 70 

36000 (6.0) (IS.0) (24.0) (45) (60) (75) (93) (114) (135) (159) (183) (212) 

Over . - - 36000 

up to 

70000 

Over - - 70000 

up to 

140000 

Over - - 140000 

to 

210000 

Over - - 210000 

grade under conditions as listed: 

Machine. 

Loader> 

Dumpero & 

Tractor Scrapers 

Grod.r1 

Cranes & 

Excavotor1 

Trocton with 

td. Dozer 

Grade 

30% 

2S'!. 

30% 

25% 

30% 

-· 19 2S 

(S7) __ (75) 

- 22 31 

(66) (93) 

- 26 36 

(78) (108) 

- 31 43 

(93) (129) 

Condition 

Loaded to manufacturers gross masi (weight) 

rating and distribution. Bucket to be in 

SAE carry position. 

Loaded to manufacturers gross machine 

moss (weight} roting and distribution. 

Cutting edge to be in the transport 

position. 

Unloaded, with components in the 

transport position as recommended by 

the manufacturer. 

Lowest port of cutting edge to be 460 mm (I B in) above test surface. 

33 41 SI 61 72 84 97 

(99) (123) (153) (1 ~3) -~16) .. (252) (292) 

40 so 62 75 89 105 121 

(120) (ISO) (186) (225) (267) (315) (364) 

47 60 74 89 107 125 145 

(141) (180) (222) (267) (321) (375) (435) 

S7 73 91 111 132 156 181 

(171) (219) (273) (333) (396) (468) (543) 

drops below 50% of the manufacturers specified maximum operating energy 

level. The device shall be readily visible and/or audible to the operator, and 

provide a continuous warning. Gauges indicating pressure or vacuum shall not 

be acceptable to meet these requirements. 

4.2 Emergency Stopping System-AU machines shall be equipped with 

an emergency stopping system. 

·4.2.l STOPPING PERFORMANCE-The emergency stopping system, when .. 

tested in accordance with Section 5, shall stop the machine within the distances shown in parenthesis in the appropriate table. 

4.2.2 EMERGENCY APPLICATION-The emergency system shall be capable of 

being applied by a person seated in the operator's seat. The system shall be 

arranged so that it cannot be released from the operator's seat after any 

application unless immediate reapplication can be made from the operator's 

seat to stop the machine or combination of machines. · 

4.2.2.l In addition to the manual control, the emergency stopping system 

may also be applied automatically. If an automatic emergency stopping 

system is used, the automatic application shall occur after the warning device 

The criteria shall apply to both forward and reverse directions. is actuated. 

4.1.3 SYSTEM RECOVERY-With the machine stationary, the service braking 4.3 Parking System-All machines shall be equipped with a parking 

systems primary power source shall have capability of delivering at least 703 system capable of being applied by a person seated in the operator's seat. 

of maximum brake pressure measured at the brakes when the brakes are fully 4.3.1 PARKING SYSTEM PERFORMANCE-The parking system shall have capaapplied twelve ( 121 times at the rate of four (4) applications per minute with bility equivalent to holding the machine stationary on a 15% ·dry swept 

the engine at maximum governed rpm for dumpers, tractor scrapers, cranes concrete grade under all conditions of loading. This criterion shall apply to 

and exca•·ators; and twenty (20) times at the rate of six (6) applications per both forward and reverse directions. 

~inute with the engine at maximum governed rpm for loaders, graders, and 4.3.2 REMAIN APPLIED-The parking system while applied shall maintain 

td. tractors with dozer. the parking performance in compliance with paragraph 4.3.1 despite any 

4.1 A \VA1t.'<ING DEVICE-The service braking system using stored energy contraction of the brake parts, exhaustion of the source of energy or leakage of 

shall be equipped with a warning device which actuates before system cir~ 

4 

any kind. . 
T~BLE 2-DUMPERS-Braktt Performance Requirements (SI Units) 

' Mac~ine Speed, km/h 

Machine 

MC.11, 24 32 40 48 

kg 

Service Brake Maximum Stopping Distance-Metres 

(Emergency Brake Maximum Stopping Distance-Metres) 

Up to 10.9 17.0 26.5 36.0 

45000 (27.1) (46.2) (70.4) (99.5) 

Over 14.2 22.3 32.1 43.5 

45000 (31.6) (52.1) (77.7) (108.5) 

lo· 

90000 

Over 19.2 29.0 40.4 53.5 

90000 (38.1) (60.9) (88.7) (121.6) 

to 

180 000 

Over 24.2 35.6 48.8 63.5 

180 000 (44.9) (69.9) (99.9) (135.0) 

Brake Performance Requirements (U.S. Cust0mary Units) 

Machine Speed, mph 

Machine 15 20 25 30 Mass, 

lb 

Service Brake Maximum Stopping Distance-Feet 

{Emergency Brake Maximum Stopping Distance-Feet) 

Up to 36 59 88 122 

100 000 (90) (153) (234) (330) 

Over 47 74 106 144 

100 000 (105) (173) (258) (360) 

lo 

200 000 

Over 64 96 134 177 

200000 (126) (202) (294) (403) 

lo 

400 000 

Over 80 118 161 210 

400 000 (149) (231) (331) (448) 

5. Brake Criteria 

5.1 Facilities and Instrumentation 

5.1.1 The test course shall consist of a clean swept, level, dry concrete or 

other specified surface of adequate length to conduct the test. The approach 

will be of sufficient length, smoothness, and uniformity of grade to assure 

stabilized travel speed of the machine. The braking surface shall not have over 

13 grad,;_ in the direction of travel, or more than 33 grade at right angles to 

the direction of travel. 

5.1.2 An instrument to measure the stopping distance with an accuracy of 

::!:1%. 

5.1.3 A means to measure the test speed with an accuracy of ::!:5% of actual 

speed. 

5.1.4 A means for detcrminin~ the machine mass (weight). 

5.1.5 A means for measuring the brakin.~ system etiergy level as required in 

paragraphs 4.1.3 and 4.1.4. 

5.1.6 A means for measuring the force required by the operator to actuate 

the braking system. 

5.2 Test Requirements 

5.2.I All tests to be conducted with the applicable braking system fully 

charged. 

5.2.2 Stoppin.i: tests to be conducted under the following conditions: 

Machine 

loaders 

Dumpers & 

Tractor Saapers 

Graders 

Cranes & 

Excavators 

Tractors with 

td. Dozen 

Condition 

Unloaded, with bucket in SAE carry position 

{Reference SAE J732c {June, 1975)). 

loaded to manufacturers gross machine moss 

(weight) rating and diStribution. 

Cutting ·edge to be in the transport position. 

Unloaded, with componenh in the transport 

position as recommended by the manufacturer. 

Lowest port of cutting edge to be 460 mm 

{ 18 in) above test surface. 

APPENDIX A Page 4 

41.189 

TABLE 3-COMBINATION DUMPERS AND DUMPER TRAINSBrake Performance Requirements {SI Units) 

Machine Speed, km/h 

Machine 24 32 40 48 Mass, 

kg 

Service Brake Maximum Stopping Distance-Metres 

(Emergency Brake Maximum Stopping Distance-Metres) 

Up to 10.9 17.9 26.5 36.9 

45000 (27.1) (46.2) (70.4) (99.5) 

Over 17.6 26.8 37.6 50.2 

45000 (36.0) (58.1) (85.1) (117.3) 

to 

90000 

Over 25.9 37.9 51.5 65.9 

90000 (47.1) (72.9) (103.7) (139.5) 

to 

180 000 

Over 37.6 53.4 71.0 90.2 

180000 (62.7) (93.6) (129.6) (170.6) 

Brake Performance Requirements (U.S. Customary Units) 

Machine Speed, mph 

Machine 15 Moss, 20 25 30 

lb Service Brake Maximum Stopping-Feet 

(Emergency Brake Maximum Stopping Distance-Feet) 

Up to 36 59 88 122 

100 000 (90) (153) ,(234) (330) 

Over 58 89 125 166 

100 000 (119) (192) (282) (389) 

to 

200000 

Over ,•' 86 125 "' .. .171 221 

200000 (156) (241) (344) (462) 

to 

400 000 

Over 124 177 235 290 

400000 (207) (310) (429) (565) 

5.2.3 Stopping distance to be measured in metres (feet) from the point at 

which the brake control is applied to the point at which the machine is 

stopped. 

5.2.4 Stopping tests to be conducted from at least one speed for each 

machine as listed: 

Machine 

Loaders, Tractors 

ed. with Dozen 

Dumpers, Tractor 

Scrapers 

Graders 

Crones, 

Excavators 

Speeds 

Not less than 26 km/h (16 mph) or maximum 

speed if less than 26 km/h (16 mph). 

Not less than 32 km/h (20 mph) or maximum 

speed if less than 32 km/h (20 mph). 

Not less than 30 km/h { 18 mph) or 

maximum speed if less than 30 km/h 

(18 mph). 

Not less than 32 km/h (20 mph) no more 

than 48 km/h. (30 mph) or maximum speed if 

less than 32 km/h (20 mph). 

5.2.5 Stopping test shall be conducted with the transmission in gear commensurate with the speed required in paragraph 5.2.4. The power train may 

be disengaged prior to completing the stop. 

5.2.6 Auxiliary ret'lrders shall not be used in the test unless the retarder is 

simultaneously actuated by the applicable brake system control. 

5.2. 7 Maximum allowable operator forces to actuate braking sys!ems as 

defined in Section 3 are 890 N (200 lb) for a foot operated system,.and 535 N 

( 120 -lb) for a hand operated system. 

175 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 ... 31 l9\D 

WALTER JOE BLANC, 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION OR INTeRFERENCE 

Complainant, 

DOCKET NO. WEST 82-186-DM 

v. 

BROWN & ROOT, INC., 

Respondent. 

~~~~~~~~~~~~~~~~~~ 

Appearances: 

Mr. Walter Joe Blanc 

722 Hemlock Drive, Grand Junction, Colorado 81501 

Appearing Pro Se 

Peter R. McLain, Esq., Wilson, Brown & Faulk 

P.O. Box 4611, Houston, Texas 77210 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

Complainant Walter Joe Blanc, (Blanc), brings this action on his. own 

behalf alleging he was discriminated against by his employer, Brown and 

Root, (B&R), in violation of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 ~seq. 

The applicable statutory provision, Section 105(c)(l) of the Act, now 

codified at 30 u.s.c. 815(c)(l), in its pertinent part provides as 

follows: 

No person shall discharge or in any other manner discriminate 

against ••• or. otherwise interfere with the exercise of the 

statutory rights of any miner ••• because such miner ••• has 

filed or made a complaint under or relating to this Act, including a complaint notifying the operator or the operator's 

agent, or the representative of the miners ••• of an alleged 

dang~r or safety or health violation ••• or because such minet 

••• has instituted or caused to be instituted any proceeding 

under or related to this Act or has testified or is about to 

testify in any such proceeding, or because of the· exercise 

by such miner ••• on behalf of himself or others of any 

statutory right afforded by this Act. 

176 
After notice to the parties a hearing on the merits was held in Grand 

Junction, Colorado on November 3, 1982. 

Complainant elected not to file a post trial brief. Respondent filed 

a post trial brief. 

ISSUE AND SUMMARY 

The issue on the merits is whether respondent discriminated against 

complainant, a safety supervisor, in violation of the Act. 

The evidence is generally without substantial conflicts. Complainant's evidence seeks to prove he was fired because he detected and 

required the abatement of· substandard mining practices by Gilbert Western, 

(Gilbert), a subcontractor. Respondent's evidence seeks to establish a 

business justification for discharging complainant. The proffered 

justification arises from incidents of unprotected activity. 

COMPLAINANT'S EVIDENCE 

Walter Joe Blanc testified on his own behalf: 

He was employed by B&R on September 24, 1981 (Tr. 8). Wayne Pierce, a 

B&R supervisor, offered him the position of safety supervisor at $2400 a 

month (Tr. 9, 12). Pierce also offered Blanc additional employment 

incentives (Tr. 9). Blanc had 10 years experience as an MSHA coal mine 

inspector (Tr. 13, 14, 16). 

Blanc was, in fact, hired as a safety inspector at $14.50 an hour (Tr. 

52-53, Rl). After two or three weeks he was told he would-not receive the 

safety supervisor's position (Tr. 20, 54). Blanc was terminated on 

November 3, 1981 (Tr. 8). 

Blanc's duties included the inspection of the work areas of Tectonic 

Construction, Sunnnit Construction, and Gilbert at the Colony Shale Oil 

project. These companies were all subcontractors of B&R, the general 

contractor (Tr. 19, 20, 22). 

After he started Blanc found explosives and dynamite scattered around 

the Gilbert area (Tr. 22). Prior to this time Blanc detected many unsafe 

conditions (Tr. 23, Cl). He kept a daily list of these substandard 

conditions which he gave to William Minton, his supervisor, when he was 

terminated (Tr. 24). 

Gilbert personnel would become outraged on almost every substandard 

condition Blanc. would point out to them (Tr. 25). Blanc discussed such 

conditions with Gilbert supervisors Reseigh, Schnopp, Burkey, or Neff (Tr. 

26). At least five substandard conditions would be corrected each day (Tr. 

27). 

After he was terminated Blanc prepared an additional list of these 

substandard conditions. The list, only partially complete, contains fewer 

177 
conditions than the list he gave to his supervisor when he was terminated. 

The list, as supplemented by the tes.timony, shows the following substandard conditions were detected by Blanc: 

1. No berm along the elevated haulage road for a distance of 

about 40 feet (Cl). This condition was discussed with Reseigh or Schnopp. 

Blanc could not recall their reaction (Tr. 28). 

2. Various pieces of mobile equipment were parked unblocked and 

unattended (Cl). Blanc discussed this condition with Reseigh or Schnopp. 

They would "get mad" about having to abate but they would eventually do it 

(Tr. 3, 28). 

3. Inoperative ·overwind device on the crane (Cl). This 

condition was discussed with Reseigh or Schnopp (Tr. 28). 

4. Safety equipment check card not filled out on the triple boom 

drill (Cl). This was discussed with Reseigh or Schnopp but they didn't get 

too upset (Tr. 29). 

5. Battery lid cover loose and unsecured on triple boom drill 

(Cl). This would have been discussed with Gilbert's mechanic, Minton. He 

didn't get upset like the rest of them (Tr. 30). 

6. No fire extinguishers on triple and double boom drills, two 

air compressors, and oil storage station (Cl). This condition was 

discussed with Schnopp (Tr. 30). 

7. Inoperative backup alarm on crane (Cl). 

8. Broken roof glass in crane (Cl). This condition and the 

preceding one were discussed with mechanic Minton who didn't get out of 

hand (Tr. 30, 31). 

9. From October 19, 1981 to November 3, 1981 tagline was not 

used on suspended equipment (Cl). This practice was discussed with Reseigh 

or Schnopp (Tr. 31). They got upset and aggravated (Tr. 31). 

'. 

10. October 19, 1981 to November 3, 1981 workmen were observed 

below suspended load (CI). This practice was discussed with Reseigh or 

Schnopp (Tr. 31). 

11. Paper, aluminum cans, anq other trash was scattered throughout the area (Cl). Reseigh and Schnopp were not upset over this condition 

(Tr. 32). 

12. The truck carrying explosives: it lacked a cover lid for detonators, it was not identified .as one carrying·; explosives, and it was not 

blocked to prevent motion. Smoking was observed within ten feet of the 

truck (Cl). This was discussed with Reseigh. He was angry .and upset but 

took care of it right away (Tr. 32). 

178 
13. On two separate days two sticks of damaged explosives were 

observed outside of and in the tunnel. A detonator cap was found in the 

back of the explosives truck. Truck was not blocked to prevent motion 

(Cl). This condition was discussed with Schnopp (Tr. 32). He got upset 

and aggravated but took care of it right away (Tr. 33). 

14. No smoking signs were not placed on the truck carrying 

diesel fuel (Cl). This was discussed with Schnopp or Bill Milton 

(mechanic)(Tr. 33). Blanc didn't think this was abated (Tr. 33). 

15. Diesel fuel was stored in two 5 gallon containers (Cl). 

Blanc discussed this with Schnopp but couldn't recall his reaction (Tr. 

33). 

16. A backhoe and front end loader were taken into the tunnel 

without emissions control for the diesel exhaust (Cl). This situation was 

discussed with Reseigh or Schnopp who tried to convince Blanc that the 

equipment had emissions controls (Tr. 33). 

17. The lunchroom was cluttered with tin cans and paper trash 

(Cl) •. This condition was discussed with Schnopp who didn't seem to get too 

upset (Tr. 34). 

18. The roof in the tunnel was not supported in an area about 

six feet wide and ten feet in length (Cl). Blanc discussed this with 

Reseigh who became outraged. Blanc had a copy of the ground support plan. 

Reseigh through up his hands, replied with an obscenity, and left the 

property like a wild man (Tr. 34, 43). Schnopp with whom Blanc also 

discussed this was upset because they'd have to put in ground support (Tr. 

34). The roof support incident happened the same day Blanc was terminated 

(Tr. 43, 61). 

In the three and one half weeks Blanc was on the Gilbert site the only 

conditions not abated were the roof support problem [No. 18] and the broken 

glass in the crane [No. 8] (Tr. 60). Blanc didn't know if the roof 

supports were installed since this incident occurred on the day of his 

termination (Tr. 61). 

Minton terminated Blanc on November 3, 1981 between noon· and 3 p .m. 

(Tr. 35). Minton said he was terminating Blanc for his failure ~o get 

along with the contractor. Minton said he couldn't go around "putting· out 

fires" (Tr. 30). At this meeting no statements were made about Blanc's 

safety complaints issued against Gilbert nor was there any discussion about 

Blanc's job activities (Tr. 38, 40, 41). At the termination conference 

Hohon said Blanc was in his hair and he (Hohon) had only been there a week 

(Tr. 41). 

On two prior occasions Blanc's supervisor, Minton, had told him to 

take it easy on Gilbert because they had a hard money contract (Tr. 41-42). 

Hard money, according to Blanc, means they don't want any slowdown (Tr. 

43). 

179 
On one occasion Blanc was riding the mantrip van down the mountain. 

When riding the van everyone must sign his name to a piece of paper. 

Except for the driver only Gilbert employees were present. When the paper 

was returned from the rear of the van someone had written "sucks" by 

Blanc's name (Tr. 62). Blanc stated if any one was man enough to admit it' 

he'd stop the van, get out, and take care of the situation (Tr. 62). By 

that Blanc meant he was going to "knock him on his ass" (Tr. 62-63). This 

was not Blanc's normal approach to problems although he did get upset with 

safety director Dave Allen over a flagrant violation (Tr. 63). 

On another occasion, after the van incident, Blanc noticed part of his 

lunch was missing from his lunchbox. Blanc didn't say anything until he 

checked with his wife (Tr. 65). The next morning he held his only safety 

meeting. At the meeting he told the Gilbert employees that whoever got 

into his lunchbox would need an ambulance, i.e., Blanc was going to "knock 

them on their ass" (Tr. 65, 66). 

RESPONDENT'S EVIDENCE 

Respondent's witnesses were William Minton (B&R safety director), 

Walter Saunders (Blanc's inunediate supervisor), Gary Bates (Exxon's mine 

superintendent and client's representative), and Bob Reseigh (Gilbert 

project manager). 

Witness William Minton testified as follows: 

As B&R's safety director, he was responsible for safety and health at 

Colony Shale Oil Project (Tr. 94, 95). Blanc was responsible for the mine 

bench area (Tr. 96). Blanc was hired as a safety inspector at $14.50 per 

hour because of his knowledge about MSHA and mining practices (Tr. 106). 

Minton explained to Blanc that he shouldn't shut down Gilbert for 

non-serious violations (Tr. 111). B&R could be back charged for this and 

it would affect productivity (Tr. 111). Blanc was counselled on two 

different occasions because of complaints by Reseigh (Gilbert project 

manager) and Gary Bates (Exxon man~ger) (Tr. 111). 

Minton first heard about the middle of October from Vance English that 

Gilbert was being shut down for improperly marked gas cans and for workers 

being on top of a trailer (Tr. 112, 113). Minton went up to the mountain 

and didn't see anything that would cause a shutdown (Tr. 113-114). 

It is B&R pol.icy 

situation of inuninent 

operation (Tr. 115). 

116-117). Minton did 

117-118). 

that if a safety inspector sees employees in a 

danger he has the authority to shut down the 

Various remedies are available to the inspector 

nothing about this particular complaint (Tr. 

(Tr. 

It was over two weeks later when Reseigh came to Minton and said they 

were being harassed by Rlanc and shut down for no reason at all (Tr. 118, 

119). Minton's investigation showed nothing serious that should cause a 

shutdown (Tr. 119). Minton counselled with Blanc. He explained that B&R 

was subject to back charges if a shutdown occurred and the situation was 

not one of imminent danger and life threatening (Tr. 120, 121). Minton 

180 
explained that Gilbert had a "hard money contract" .that is, a unit price 

contract (Tr. 122). 

Gary Bates (Exxon) complained to Minton about an incident that arose 

when Blanc, Bills, and Reseigh were talking. Bills brushed against Blanc 

who automatically took offense. He put his fists up and told Bills he 

better never touch him again (Tr. 122). Minton talked to Bills and 

Reseigh, but not Blanc, about this incident (Tr. 123). 

About November 3 Gates came to Minton about a shutdown (Tr. 124-125). 

Minton felt Blanc was abusing his authority as an inspector (Tr. 125). 

At his termination meeting Minton told Blanc he had no alternative but 

to terminate him for failure to get along with the subcontractor (Tr. 125). 

Blanc was quiet. He did not deny the lunchbox, the van, and the Bills 

incidents (Tr. 125). Blanc's discharge slip reads that he was fired for 

failure to get along with the subcontractor (Tr. 145-146). 

Minton's first counselling session with Blanc was after Reseigh 

complained about Blanc shutting Gilbert down. The second session was over 

what hours Blanc was to work. The fourth session was after the Bills 

incident. This was on the date of termination (Tr. 128). There were five 

counselling sessions before Blanc was terminated (Tr. 129). The fifth and 

final session was on the day Blanc was fired (Tr. 129). Minton never 

threatened Blanc's job nor did he at any time tell him not to note or 

correct viola.tions or defects (Tr. 129, 133-134). 

Minton learned of the incident involving ro6f supports in the tunnel 

on November 3 after Blanc had been terminated (Tr. 135). Bates and Reseigh 

came to Parachute (Colorado), after Blanc had left, and explained they had 

put in additional bolts (Tr. 135). Reseigh said this was not an innninent 

danger situation although bolts were required in the drawings (Tr. 135). 

~lane hadn't talked about the bolts at the termination meeting (Tr. 135). 

Prior to Blanc being terminated Minton didn't have any knowledge of the 

unsafe conditions for which Gilbert was cited (Tr. 158-159). 

Blanc never told Minton he was having problems with the subcontractors (Tr. 161). 

Blanc's termination on November 3, 1981 was triggered by the 

complaints of the subcontractor, the client, and the [disregard by Blanc of 

the] counselling sessions. The final straw was the lunchbox incident (Tr. 

159). 

Witness Walter Saunders testified as follows: 

He was Blanc's supervisor (Tr. 163). Saunders returned from leave 

about October 26 •. At that time Minton informed him that there were some 

problems on the mine bench. Some animosity had developed between Gilbert 

personnel and Blanc. Gilbert was complaining they were being shutdown 

unnecessarily. Allen and Schnopp said the same thing (Tr. 165-166). 

Saunders did nothing but he intended to keep his eye on the situation (Tr. 

166). 

181 
Saunders was asked by Minton to investigate the lunchbox incident. He 

interviewed most of the people who had been at the safety meeting (Tr. 167, 

168). The only topic at the safety meeting was Blanc's lunchbox (Tr. 168). 

Saunders related this information to Minton (Tr. 168). 

Saunders was present at the November 3 termination meeting. Blanc's 

defense, in essence, was that this was the only way he knew how to do it 

(Tr. 169, 170). 

B&R procedure is for an inspector to note violations and report them 

to his supervisor (Tr. 170). Blanc mentioned explosives lying around (Tr. 

171). The problems Blanc related to Saunders were the lunchbox and the 

van incidents as well as the lack of communication with Gilbert (Tr. 171). 

Saunders never threatened Blanc for shutting down the job when there 

was no imminent danger (Tr. 173). 

Dave Allen's complaints were that Blanc was either shutting down the 

operation or threatening to do so when it wasn't justified (Tr. 177). 

Blanc was terminated because of his inability to talk with subcontractors and because he was abrasive (Tr. 179, 180). It is improper for 

an inspector to threaten someone.with bodily harm (Tr. 182). 

Witness Gary Bates testified as follows:. 

He was the representative for Exxon USA, and as such he was 

responsible for the day to day operation of the Colony Shale Oil Project 

(Tr. 184). 

Joe Blanc first came to Bates' attention shortly after Gilbert. 

mobilized (Tr. 188). A series of statements were made to Bates which he 

considered to be overzealousness on Blanc's part (Tr. 189). It was not so 

much what Blanc said but how he stated it (Tr. 189). Blanc was using 

abusive language and a tough guy attitud~ (Tr. 190). Bates asked Minton to 

straighten this out (Tr. 190). 

About a week later the Bills incident (when Bills brushed against 

Blanc) was brought to Bates' attention (Tr. 191). Bates contacted Minton 

because he was concerned abput a fight (Tr. 191). Minton told Bates he'd 

talk to Blanc (Tr. 191). 

Another matter brought to Bates' attention was the lunchbox incident 

which Bates describes as Blanc "lining up" the Reseigh grol,lp and saying 

he'd send them off the hill in an ambulance if it happened again (Tr. 192). 

Bates told Minton this conduct is "completely unacceptable and we can't 

have that" (Tr. 192). Minton said he'd look into it and try to get it 

resolved (Tr. 192). 

Bates never made any recommendation concerning Blanc's-personnel 

status (Tr. 192). 

182 
Bates learned of the roof bolts incident after Blanc had gone (Tr. 

193). 

Bob Reseigh testified as follows: 

He was Gilbert's project manager, and he started on the project on 

October 26, 1981. By November 5, 1981 the tunnel extended 60 to 70 feet 

(Tr. 211-213). Gilbert had a fixed price contract where Gilbert was paid 

in lineal feet of tunnel (Tr. 213). 

Reseigh and Blanc disagreed over the way things should be done. Blanc 

would note violations and bring them to Reseigh's attention (Tr. 214, 215). 

Basically Blanc wanted it corrected now (Tr. 215). It was Gilbert's policy 

to correct, if possible (Tr. 215). 

On several occasions Blanc shutdown several pieces of equipment for 

not having fire suppressors. MSHA did not require such suppressors (Tr. 

215-217). Reseigh complained to Bates (Tr. 216-217). 

About a week or 10 days later they were about 40 to SO feet into the 

access tunnel (Tr. 219). Blanc wanted ventilation. Reseigh hestitated 

because subsequent blasting would blow it up (Tr. 219). Reseigh went to 

Bates and told him they could legally advance 100 feet (Tr. 219). Bates 

agreed. Reseigh didn't know if Blanc had shut down the tunnel (Tr. 219). 

Blanc called a safety meeting and threatened to carry some people off 

of the mountain because a sandwich was missing from his lunchbox. Reseigh 

told Saunders about it. Reseigh felt they couldn't have that kind of 

animosity on the site (Tr. 220). 

On one occasion [November 3] Blanc said Gilbert couldn 1 t dri 11. · The 

plan called for rock bolts in back of the rib (Tr. 221). Normally such 

bolts are installed behind the Jumbo (Tr. 222). The Jumbo was pulled out, 

muck brought in, and Gilbert installed the roof bolts (Tr. 222). Reseigh 

went down and talked to Bates and after lunch they both went to Minton in 

Parachute, some 16 to 20 miles from the job site (Tr. 222). 

Reseigh said something had to be done about Blanc (Tr. 222-223). He 

was told that something had been done (Tr. 222-223). 

Reseigh's workers were instructed to get along with Blanc (Tr. 

223-224). 

On one occasion Bills was talking with his hands and he touched Blanc, 

who got "stiff". 'Blanc told Bills not to touch him again, that he did not 

like to be touched. He was not belligerent but there was no question he 

didn't want to be touched (Tr. 226-227). Bills is 5 foot, 7 inches tall 

and 68 to 75 years old (Tr. 227). [At the hearing the Judge observed that 

Blanc appears taller and younger than Bills]. 

On one occasion Blanc wanted all work to cease in the tunnel face 

during blasting operations (Tr. 230). When Gilbert blasts in a tunnel they 

183 
remove the workers out but they_do not remove them during the charging 

process (Tr. 230). 

As a rule Gilbert was given time to correct [a defect] before they 

were shut down (Tr. 231). 

It is very possible that Blanc brought up five safety or health 

violations every day (Tr. 243). 

Reseigh only complained twice about Blanc. The first instance was 

that Blanc was inspecting them unnecessarily for trivial problems. On the 

day Blanc was no longer assigned to the mine bench Reseigh wanted to be 

sure the problem had been taken care of so he went to see Minton (Tr. 247). 

DISCUSSION 

The Cormnission established the general principles for analyzing 

discrimination cases under the Mine Act in Secretary ex rel. Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on other 

grounds sub nom, Consolidation Coal Co. v. Marshall, 663 F 2d 1211, 

(3d Cir. 1981), and Secretary ex rel Robinette v. United Castle Coal Co., 3 

FMSHRC 803 (April 1981). In these cases the Cormnission ruled that a 

complainant, in order to establish a prima facie case of discrimination 

bears a burden of production and persuasion to show that he was engaged in 

protected activity and that the adverse action was motivated in any part by 

the protected activity. Pasula 2 FMSHRC 2799-2800; Robinette, 3 FMSHRC at 

817-818. 

At this point it is appropriate to consider the status of Blanc's 

activities. The vast majority of discrimination claims arising under the 

Act are generated by miners engaged in duties other than those of a safety 

inspector. I find nothing in the text of the Act or in the legislative 

history that indicates Congress intended to exclude a safety inspector 

from the protection of the discrimination portion of the Act. An 

operator's safety inspector bears an important function in helping fulfill 

the purposes of the Act since his duties will ordinarily seek to promote 

safety and health. Under Pasula and Robinette and'their progeny I conclude 

that good faith complaints of unsafe and unhealthy conditions by a safety 

inspector in the ordinary course of his duties are protected under the 

Act. 

Having resolved Blanc's status we wi'll go to the Commission's further 

ruling in Robinette: to rebut a prima facie case a operator must show 

either that no protected activity occurred (in view of the ruling as to 

Blanc's status B&R cannot establish that defense) or that the adverse 

action was in no part motivated by protected acti_vity, 3 FMSHRC 817-818 and 

N. 20. If an operator cannot rebut the prima fac'ie case in the foregoing 

manner it may nevertheless defend by proving that it was also motivated by 

the miner's unprotected activities and that it would have taken the adverse 

action in any event for the unprotected activities alone, Pasula, 2 FMSHRC 

2799-2800. 

184 
The operator bears an intermediate burden of production and persuasion 

with regard to these elements of defense. Robinette, 3 FMSHRC at 818 n. 

20. This further line of defense applies only in "mixed motive" cases, 

i.e., cases where the ·adverse action is motivated by both protected and 

unprotected activity. The Commission made clear in Robinette that the 

ultimate burden of persuasion does not shift from the complainant in either 

kind of case. 3 FMSHRC at 818 n. 20. The foregoing Pasula-Robinette test 

is based in part on the Supreme Court's articulation of similar principles 

in Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 

285-87 (1977). 

In Sec. ex rel. Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (November 

1981), pet. for review filed, No. 81-2300 (D.C. Cir. December 11, 1981), 

the Commission affirmed the Pas~la-Robinette test, and set out the 

following proper criteria for analyzing an operator's business justification for adverse action: 

Commission judges must often analyze the merits of an 

operator's alleged business justification for the 

challenged adverse action. In appropriate cases, they may 

conclude that the justification is so weak, so implausible, 

.or so out of line with normal practice that it was a mere 

pretext seized upon to cloak discriminatory motive. But such 

inquiries must be restrained. 

The Commission and its judges have neither the statutory 

charter nor the specialized expertise to sit as a super 

grievance or arbitration board meting out industrial 

equity. Cf. Youngstown Mines Corp., 1 FMSHRC 990, 994 (1979). 

Once it appears that a proffered business justification is 

not plainly incredible or implausible, a finding of pretext 

is inappropriate. We and our judges should not substitute 

for the operator's business judgment our views on "good" 

business practice or on whether a particular adverse action 

was "just" or "wise." Cf. NLRB v. Eastern Smelting & Refining 

Corp., 598 F. 2d 666, 6TI (~Cir. 1979). The proper focus, 

pursuant to Pasula, is on whether a credible justification 

figured into motivation and, if it did, whether it would have 

led to the adverse action apart from the miner's protected 

act1v1t1es. If a proffered justification survives pretext 

analysis •.• , then a limited examination of its substantiality 

becomes appropriate. The question, however, is not whether 

such a justification comports with a judge's or our sense of 

fairness or enlightened business practice. Rather, the· 

narrow statutory question is whether the reason was enough 

to have legitimately moved that operator to have disciplined 

the miner. Cf. R-W Service System Inc., 243 NLRB 1202, 1203-

04 (1979) (articulating an analogous standard). 

3 FMSHRC at 2516-17. Thus, the Commission first approved restrained I 

analysis of an operator's proffered business justification to determine 

whether it amounts to a pretext. Second, the Commission held that once it 

is determined that a business justification is not pretextual, then the 

185 
judge should .determine whether "the reason was eno.ugh to have legitimately 

moved the operato~' to take adverse acti~n. 

By a "limited" or "restrained" examination of the operator's business 

justification the Commission does not mean that an operator's business 

justification defense should be examined s~perficially or automatically 

approved once offered. Rather, the Cormnission intends that its Judges, in 

carefuly analyzing such defenses, should not substitute his business 

judgment or sense of "industrial justice" for that of the operator. As the 

Commission recently stated "our fμnction is not to pass on the wisdom or 

fairness of such asserted business justifications but rather only to 

determine whether they are credible and, if so, whether they would have 

motivated the particular operator as claimed." Bradley v. Belva Coal Co., 

4 FMSHRC 982, 993 (June 1~82). 

With the Commission directives in mind we will examine the defense 

asserted by B&R. The defenses are succinctly stated by Blanc's supervisor 

Minton. Blanc was terminated because of complaints by the subcontractor 

(Gilbert), the client (Exxon), and the counselling sessions. The final 

straw was the lunchbox incident (Tr. 159). B&R in its post trial brief 

also argues that the Bills and the van incidents support B&R's business 

justifications. 

We will examine the record. Gilbert's complaints: Manager Reseigh 

complained twice. Once was over being unnecessarily inspected over trivial 

problems (Tr. 247). The second time was apparently when Reseigh went to 

see Minton himself (Tr. 247). At that point Blanc had already been 

terminated. 

The client's complaints: Exxon, through its manager Gary Bates, asked 

Minton to "straighten out" Blanc's attitude. Bates dislikes an attitude 

of "I am not here to help your safety program, I'm here to shut you down" 

(Tr. 190). 

Further complaints by the client arose from the Bills incident. Bates 

was concerned about a fight and again contacted Minton (Tr. 191). 

Bates describes the lunchbox incident as Blanc "lining up" Reseigh's 

group (Tr. 192). Bates admonished Minton stating "that type of behavior is 

completely unacceptable and we can't have that" (Tr. 192). 

Three complaints by a client-owner in less than a three week period 

would motivate Minton to fire Blanc. A miner's unsatisfactory past work 

record is one of the criteria discussed in Br~dley v. Belva Coal Company. 

On the basis of the Commission directives I conclude that the business 

justification is not pretextual and the reasons were enough to have 

legitimately moved B&R to take adverse action against Blanc. 

I have carefully examined Blanc's evidence. A cursory.review might 

indicate that his facts establish a claim of retaliatory conduct. The 

scenario: Blanc has been overzealous in enforcing safety regulations 

186 
against Messers.Reseigh, Schopp, Burkey, and Neff of the Gilbert Company. 

The culmination comes when Blanc requires that roof bolts be installed in 

the tunnel. This delays production. Reseigh storms out, goes to .Exxon's 

Bates, and in turn they go to Minton who immediately fires Blanc for his 

overzealous enforcement of the safety regulations. 

For several reasons the evidence does not support this theory of the 

case. 

Blanc testified that he never advised Minton of the problems he was 

having with Gilbert (Tr. 67, 68). Minton confirms this fact (Tr. 161). 

Further, concerning the two hour termination meeting Blanc testified there 

was no discussion about safety complaints Blanc has issued against Gilbert 

(Tr. 38). This evidence combines with Minton's uncontroverted testimony 

that he didn't learn of the roof bolts incident until after he had 

terminated Blanc (Tr. 135). 

Since Minton generally did not know about Blanc's disagreement over 

safety conditions with Gilbert ·personnel nor about the roof bolt incident 

these. factors could not have motivated Minton to fire Blanc. 

Since the evidence fails to establish a case of discriminatory conduct 

1n violation of the Act it is unnecessary to consider Blanc's claim of lost 

wages and expenses. 

Based on the foregoing facts and conlusions of law I enter the 

following: 

ORDER 

The complaint of discrimination is dismissed. 

Distribution: 

Mr. Joe Walter Blanc, 722 Hemlock Drive 

Grand Junction, Colorado 81501 

Peter R. McLain, Esq., Wilson, Brown & Faulk 

P.O. Box 4611, Houston, Texas 77210 

18'1 *U.S. GOVERNMENT PRINTING OFFICE : 1983 0-381-569/5276