November 1983 

Commission Decisions 

ll-09-83 

ll-09-83 

Todilto Exploration & Development Co. 

Callanan Industries, Inc. 

Administrative Law Judge Decisions 

ll-03-83 

ll-04-83 

ll-04-83 

ll-04-83 

ll-07-83 

ll-09-83 

ll-09-83 

ll-14-83 

ll-15-83 

ll-15-83 

ll-17-83 

ll-22-83 

ll-23-83 

ll-25-83 

ll-25-83 

ll-30-83 

ll-30-83 

ll-30-83 

ll-30-83 

Glen Irvan Corporation 

UMWA/James Rowe, et al.v. Peabody Coal Co. 

CC & P.Coal Company 

Westmoreland Coal Company 

Westmoreland Coal Company 

Bartley & Bartley Coal Company 

Peerless Eagle Coal Company 

Cyprus Industrial Minerals Corp. 

Kaiser Steel Corporation 

Thompson Coal & Construction, Inc. 

Bridgett Coal Company 

Turner Brothers, Inc. 

Monterey Coal Company 

MSHA/F.Cronin & M.Nixon v. Peabody Coal 

MSHA/T. Maynard v. Diamond P. Coal Co. 

Michael Young v. Terry Glen Coal Co. 

Billy R. Harness v. Royal Jellico Coal Co. 

Co-Op Mining Company 

Westmoreland Coal Company 

CENT 79-91-RM 

YORK 79-99-M 

PENN 83-25 

KENT 82-103-D 

VA 83-40 

WEVA 83-170 

WEVA 83-202 

KENT 82-66 

WEVA 83-74 

WEST 82-35-M 

CENT 81-264-R 

WEVA 83-138 

VA 82-41 

CENT 83-12 

WEVA 83-136-R 

LAKE 83-9-D 

KENT 82-199-D 

KENT 83-126-D 

SE 83-52-D 

WEST 80-142 

WEVA 83-202 

Pg. 1894 

Pg. 1900 

Pg. 1924 

Pg. 1931 

Pg. 1938 

Pg. 1940 

Pg. 1941 

Pg. 1944 

Pg. 1946 

Pg. 1947 

Pg. 1951 

Pg. 1961 

Pg. 1964 

Pg. 1966 

Pg. 1969 

Pg. 1973 

Pg. 1988 

Pg. 1990 

Pg. 2003 

Pg. 2004 

Pg. 2022 

Commission Decisions 

NOVEMBER 

The following cases were Directed for Review during the month of November: 

Secretary of Labor, MSHA v. United States Steel Mining Co., Docket No. 

PENN 83-39 (Judge Broderick, October 4, 1983) 

Secretary of Labor, MSHA v. United States Steel Mining Co., Docket No. 

PENN 82-299 (Judge Broderick, October 6, 1983) 

Secretary of Labor, MSHA v. United States Steel Mining Co., Docket No. 

PENN 82-322 (Judge Broderick, October 11, 1983) 

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

Secretary of Labor, MSHA v. United States Steel Mining Co., Docket No. 

PENN 83-43 (Judge Broderick, September 22, 1983) 

Secretary of Labor on behalf of Shelby Eperson v. Jolene, Inc., Docket No. 

KENT 83-38-D (Judge Melick, September 30, 1983) 

Secretary of Labor, MSHA v. United States Steel Mining Co., Docket No. 

PENN 83-3 (Judge Broderick, October 4, 1983) 

Secretary of Labor, MSHA v. United States Steel Mining Co., Docket No. 

PENN 83-52 (Judge Broderick, October 14, 1983) 

Secretary of Labor, MSHA v. United States Steel Mining Co., Docket No. 

PENN 83-40 (Judge Broderick, October 19, 1983) 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

TODILTO EXPLORATION AND 

DEVELOPMENT CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (HSHA), 

SECRETARY OF LABOR, 

MINE SAFETY Ai.'l'D HEAL TH 

ADMINISTRATION (MSHA) 

v. 

TODILTO EXPLORATION AND 

DEVELOPMENT CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 9, 1983 

Docket No. CENT 79-91-RM 

Docket No. CENT 79-310-M 

DECISION 

This is a consolidated civil penalty and contest of citation proceeding 

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

et seq. (1976 & Supp. V 1981). At issue is an alleged violation of 30 C.F.R. 

-r-57.5-50, the noise standard applicable to metal-nonmetallic underground 

mines. 1/ The question presented is whether in order to be "feasible" within 

J;/ 30 C.F.R. § 57.5-50 provides: 

(a) No employee shall be permitted an exposure to noise in 

excess of that specified in the table below. Noise level 

measurements shall be made using a sound level meter meeting 

specifications for type 2 meters contained in American 

National Standards Institute (ANSI) Standard Sl.4-1971, 

"General Purpose Sound Level Meters," approved April 27, 

1971, which is hereby incorporated by reference and made 

a party hereof, or by a dosimeter with similar accuracy. 

This publication may be obtained from the American 

National Standards Institute, Inc., 1430 Broadway, 

New York, New York 10018, or may be examined in any 

Metal and Nonmetallic Hine Safety and Health District 

or Subdistrict Office of the Mine Safety and Heal th 

Administration. 

(Footnote continued) 

83-11-3 

~.894 
the meaning of section 57.5-50(b) of the noise standard, an engineering 

control must reduce a miner's exposure to noise to the permissible 

levels set forth in subsection (a) of the standard. The administrative 

law judge answered that question in the affirmative. ]:_/ We disagree. 

For the reasons that follow, we hold that an engineering control may be 

"feasible" even though it fails to reduce a miner's exposure to noise to 

the permissible levels contained in the standard. Accordingly, we 

reverse and remand for a determination as to the question of feasibility 

consistent with our decision in Callanan Industries, Inc., 5 FMSHRC 

(YORK 79-99-M, decided November 9, 1983). 

On January 31, 1979, a Department of Labor Mine Safety and Health 

Administration ("MSHA") inspector conducted a noise survey at an underground uranium mine operated by Todilto Exploration and Development 

Corporation. Using a dosimeter to collect the noise sample, the inspector 

surveyed an operator of a jackleg percussion rock bolt drill for an 8-hour 

period. At the time of the noise survey, the jackleg drill was not equipped 

with a muffler. The operator of the drill was, however, wearing both foam 

earplugs and earmuffs. The results of the noise survey showed that for his 

8-hour shift the drill operator was exposed to 114 decibels ("dBA"). The 

maximum allowable exposure level for an 8-hour period is 90 dBA. 2/ Therefore, 

Fn. };_/ continued 

PERHISSIBLE NOISE EXPOSURE 

Duration per day, Sound level dBA, 

hours of exposure slow response 

8 ---------------------------------------- 90 

6 ---------------------------------------- 92 

4 ---------------------------------------- 95 

3 ---------------------------------------- 97 

2 ---------------------------------------- 100 

l~ --------------------------------------- 102 

1 ---------------------------------------- 105 

~ ---------------------------------------- 110 

\ or less -------------------------------- 115 

No exposure shall exceed 115 dBA. Impact or impulsive noise 

shall not exceed 140 dB, peak sound pressure level. 

* * * * * (b) When employees' exposure exceeds that listed in the above 

table, feasible administrative or engineering controls shall 

be utilized. If such controls fail to reduce exoosure to within 

permissible levels, personal protection equipment shall be provided and used to reduce sound levels to within the levels of 

the table. 

(Emphasis added.) 

2/ The judge's decision is reported at 3 FMSHRC 1824 (1981). 

3! Because of the logarithmic nature of noise measurement, 114 dBA 

is 2,634 percent of 90 dBA. See Callanan Industries, Inc., supra, 

slip op. at 3 n.4. 

1895 
in light of the 114 dBA reading and the fact that Todilto had not implemented feasible administrative or engineering controls to reduce the noise 

level, the inspector issued a citation alleging a violation of section 

57.5-50(b). 

Todilto abated the alleged violation by installing a muffler on 

the drill. !!_/ Subsequent noise readings taken by an MSHA inspector 

with a sound level meter after the muffler had been installed showed 

that excessive noise levels still existed. Those readings established 

that the drill operator's average noise exposure level ranged between 

110 dBA and 113 dBA. 5/ Thus, even though Todilto attached a muffler 

to the drill, .the drill operator was still required to wear personal 

protective equipment. 

Thereafter, Todilto filed a notice of contest with the Commission 

(CENT 79-91-Ri.~) and, in a separate proceeding, the Secretary filed a 

proposal for assessment of a penalty (CENT 79-310-M). The two proceedings were consolidated and an evidentiary hearing was held. At 

the conclusion of the hearing, the judge issued a bench decision in 

which he held that the installation of the muffler was not a feasible 

engineering control. !!_/ 

On July 21, 1981, the judge's final decision was issued. In that 

decision, the judge found that the drill operator was exposed to an 

excessive noise level. 3 FMSHRC at 1826. The judge stated, however, 

that although the Secretary established that installation of the 

muffler was an engineering control available to Todilto, "he has also 

shown that even with such controls the exposure to noise was not 

within permissible levels as required by the regulation." 3 FMSHRC 

at 1827. Concluding that the installation of the muffler was, therefore, 

not a feasible engineering control, the judge vacated the citation. Id. 

Following the issuance of the judge's decision, the Secretary's 

petition for discretionary review was granted. Upon consideration of 

the question presented, we hold that a control may indeed be "feasible" 

within the meaning of 30 C.F.R. § 57.5-50(b) even though it does not 

reduce the miner's exposure to noise to permissible levels set forth 

in subsection (a) of the standard. Our holding is based upon the 

!::_/ The MSHA inspector who issued the citation estimated the cost 

of the muffler to range between $50 and $150. In its brief, Todilto 

set the muffler's cost at $110. 

5/ The 110 dBA to 113 dBA reading reflects the driller's exposure to 

noise as the drill was being used to drill a hole. Although the readings 

taken with the sound level meter were for a substantially shorter perior 

of time than were the readings taken with the dosimeter, we do not have 

before us the question as to whether the sound level meter readings were 

insufficient to establish the drill operator's continued overexposure to 

noise. Therefore, we accept the judge's conclusion that the sound level 

meter readings established the fact that the drill operator was overexposed to noise after the muffler was installed. See 3 FMSHRC at 1826. 

6/ The Secretary sought to establish a violation of section 57.5-50(b) 

by showing that it was feasible to install the muffler. The Secretary 

did not attempt to prove that other feasible controls existed. 

1896 
express wording of the noise standard. Section 57.5-50(b) unambiguously 

provides that when excessive noise exposure levels exist, "feasible administrative or engineering controls shall be utilized." It continues, "[i]f 

such [feasible] controls fail to reduce exposure to within permissib~ 

levels, personal protection equipment is to be provided and used •••• " 

(emphasis added). Thus, the noise standard clearly contemplates that in 

a given case a control might not reduce the noise exposure level to within 

permissible levels, but nevertheless be a "feasible" control required to 

be implemented. To allow a mine operator to proceed directly to the use 

of personal protective equipment and thereby avoid implementing otherwise 

feasible administrative or engineering controls, solely because use of 

the controls themselves does not achieve permissible exposure levels, 

would be to allow circumvention of the standard's clear requirement that 

excessive noise levels first be addressed at their source. We note that 

under the judge's approach a control that reduces the level of noise from 

114 dBA to 91 dBA (on the basis of an 8-hour exposure period) would not 

be feasible simply because it fails to reduce the noise level to 90 dBA. 

We find no support for this result in the standard. 

Thus, we hold that the judge's apparent conclusion that any control 

that does not reduce noise exposure to permissible levels is per se 

infeasible is erroneous. Because his disposition was based on this 

conclusion it must be reversed. The question remains, however, as to 

whether, based on the specific facts in this case, the Secretary proved 

a violation of the standard for failure to implement a feasible engineering 

control. The determination regarding the muffler's "feasibility" requires 

further findings consistent with our decision in Callanan Industries, Inc., 

supra. On remand the parties are to be allowed the opportunity to present 

additional evidence and to submit further arguments in light of the 

considerations set forth in Callanan. 7/ 

Collyer, airman 

L. Clair N~lso-q, Commissioner 

\ I I . 

\ J 

7/ Because the judge who presided in this cas~ is no longer with the 

Commission, the case is remanded to the Chief AdWinistrative Law Judge 

for reassignment. 

1897 
Commissioner Lawson concurring and dissentingi 

I would concur in the majority's holding that an engineering control 

may be feasible even though it fails to reduce a miner's exposure to the 

permissible levels contained in the standard. 

For the reasons stated in my dissenting opinion in Callanan Industries, 

Inc., YORK 79-9.9-M, however, I would disagree with their conclusion as to 

the need for further findings on "feasibility", would find this operator 

in violation of the standard, and remand to the judge below solely for 

the purpose of assessing a penalty therefor. 

A. E. Lawson, Commissioner 

1898 
Distribution 

Mr. G. Warnock, President 

Todilto Exploration & Development Corp. 

3810 Academy Parkway South, N.W. 

Albuquerque, New Mexico 87109 

Linda Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

1899 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CALLANAN INDUSTRIES, INC. 

I. Introduction 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 9, 1983 

Docket No. YORK 79-99-M 

DECISION 

This civil penalty proceeding arises under the Federal Mine Safety 

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

It involves an alleged violation of 30 C.F.R. § 56.5-50, a mandatory 

standard regulating miners' exposure to noise. l/ Callanan Industries 

was issued a citation charging a violation of the noise standard for 

allegedly failing to implement feasible administrative or engineering 

controls to reduce a drill operator's exposure to excessive noise levels. 

The administrative law judge vacated the citation on the ground that 

};_/ 30 C.F.R. § 56.5-50 is the noise standard applicable to "Sand, 

Gravel and Crushed Stone Operations". It in part provides: 

(a) No employee shall be permitted an exposure to noise 

in excess of that specified in the table below. Noise 

level measurements shall be made using a sound level meter 

meeting specifications for type 2 meters contained in 

American National Standards Institute (ANSI) Standard 

Sl. 4-1971, "General Purpose Sound Level Meters," 

approved April 27, 1971, which is hereby incorporated 

by reference and made a part hereof, or by a dosimeter 

with similar accuracy. This publication may be obtained 

from the American National Standards Institute, Inc., 

1430 Broadway, New York, New York 10018, or may be 

examined in any Metal and Nonmetallic Mine Safety and 

Health District or Subdistrict Office of the Mine 

Safety and Health Administration. 

(Footnote continued) 

83-11-4 

1900 
the Secretary failed to prove that a proposed engineering control was 

feasible. 2/ 

We granted the Secretary of Labor's petition. for discretionary review 

of the judge's decision. 30 U.S.C. § 823(d)(2)(A). We also granted the 

United Steelworkers of America leave to file a brief as amicus curiae and 

heard oral argument. On review, the broad question before the Commission 

involves the meaning of the term "feasible" as contained in section 

56.5-50(b). 

As discussed below, we conclude that economic as well as technological 

factors must be taken into account in determining whether a noise control 

is "feasible" under the standard. We expressly reject, however, the assertion that a "cost-benefit analysis," as that term is commonly understood 

and used, is the appropriate analytical method for determining whether a 

noise control is required. 

Fn. 1/ continued 

PERi.~ISSIBLE NOISE EXPOSURES 

Duration per day, 

hours of exposure 

Sound level dBA, 

slow response 

8 

6 

4 

3 

2 

l~ 

1 

1/ 

'2 

~ or less ----------------

90 

92 

95 

97 

100 

102 

105 

110 

115 

No exposure shall exceed 115 dBA. Impact or 

impulsive noises shall not exceed 140 dB, peak 

sound pressure level. ***** 

(b) When employees' exposure exceeds that listed in the above 

table, feasible administrative or engineering controls shall 

be utilized. If such controls fail to reduce exposure to within 

permissible levels, personal protection equipment shall be provided and used to reduce sound levels to within the levels of 

the table. [Emphasis added.] 

(30 C.F.R. § 56.5-50 is identical to 30 C.F.R. § 55.5-50, the noise standard 

applicable to "Metal and Nonmetallic Open Pit Mines", and 30 C.F.R. 

§ 57.5-50, the noise standard applicable to "Metal and Nonmetallic Underground Hines.") 

2/ The judge's decision is reported at 3 FHSHRC 168 (January 1981). 

1901 
II. Factual Background 

On September 14, 1978, a Department of Labor, Mine Safety and Health 

Administration ("MSHA") inspector conducted an 8-hour noise survey on an 

Ingersoll-Rand CM-2 air track drill at a stone quarry operated by Callanan 

Industries. 3/ The inspector used a Du Pont dosimeter to measure the drill 

operator's exposure to noise. At the time of the noise survey, the air 

track drill was not equipped with a muffler. The drill operator was, 

however, wearing earmuffs, a form of personal protective equipment. The 

results of the survey showed that for the 8-hour shift, the operator of 

the air track drill was exposed to 103.6 dBA, the equivalent of 660 percent 

of the permissible noise exposure level established by 30 C.F.R. § 56.5-50(a) 

for an 8-hour period. 4/ Thus, on the basis of the 103.6 dBA reading and 

because Callanan assertedly had not implemented feasible administrative or 

engineering controls to reduce the driller's exposure to noise, the inspector 

issued a citation alleging a violation of 30 C.F.R. § 56.5-50. 5/ 

}_/ The Ingersoll-Rand air track drill is mounted on caterpillar tracks 

and is run from an air compressor unit. It was used by Callanan to 

drill satellite, or auxiliary, holes near the quarry face into which 

explosives were placed. The MSHA inspector who conducted the survey 

described the drill as having "a mast which has a drill hammer attached 

to it and the hammer moves up and down in the drill mast. As you start 

your drill [steel] and go deeper into the hole, the hammer goes down 

the drill mast." Tr. 31. 

!:./ For an 8-hour period the maximum permissible exposure level is 90 dBA. 

Because the measurement of noise is logarithmic rather than arithmetical, 

103.6 dBA equals 660 percent of 90 dBA. The logarithmic scale of noise 

measurement is explained in the Accident Prevention Manual for Industrial 

Operations, National Safety Council (7th ed. 1978) at p. 1242 as follows: 

To avoid working with unwieldy numbers of evaluating sound intensity, ••• 

a logarithmic scale is used with the decibel as the unit of measure. 

Because decibels are logarithmic units, they cannot be added or 

subtracted arithmetically. In fact, if the intensity of a sound 

is doubled, there will be a corresponding increase of only three 

decibels, not double the number. For example, if one machine 

caused an exposure of 90 dB, a second identical machine placed 

adjacent to the first would result in a noise exposure of 93 dB, 

not 180 dB. 

See also, Fundamentals of Industrial Hygiene, National Safety Council, 

(2nd ed. 1979) at pp. 238-239. 

5/ Although the inspector cited section 56.5-50, it is clear from both 

the wording of the citation and the hearing transcript that Callanan was 

alleged to have violated subsection (b) of the noise standard. In that 

regard, subsection (a) generally sets forth the maximum permissible noise 

exposure levels on a time-weighted average basis. Subsection (b) sets 

forth the required conduct in the event that the exposure levels contained 

in subsection (a) are exceeded -- that is, the requirement that the operator 

implement feasible controls. Here, the citation charged that excessive 

noise exposure levels existed and that feasible controls were not implemented 

by Callanan. 

1902 
After the citation was issued, a close-out conference was held between 

the MSHA inspector and Callanan management personnel. At that conference, 

the inspector requested that Callanan contact the Ingersoll-Rand Coporation, 

the manufacturer of the drill, for suggestions as to how to reduce the 

level of noise created by the operation of the drill. Thereafter, Callanan 

contacted Ingersoll-Rand and received the following response: 

After a good deal of research, we find that we 

are unable to muffle this drill. The CM-2 drill was 

produced prior to any noise requirements by the Mine 

Safety and Health Administration. The muffler system 

on this drifter does not lend itself to be piped away 

from the operator nor can we change the exhaust 

system to meet your requirements. 

Gov. Exh. 2. 

Callanan sent a copy of the Ingersoll-Rand response to the inspector 

who had issued the citation and requested MSHA's assistance concerning the 

noise problem. On March 23, 1979, Jerry Antel, the lead noise control 

engineer with MSHA's Pittsburgh Technical Support Center, conducted a noise 

survey on the air track drill. 6/ The Tech Support survey was for the 

purpose of suggesting noise controls only. It had no effect upon the 

validity of the noise survey results obtained by the inspector at the time 

the citation was issued. 7/ 

An MSHA supervisory inspector who accompanied Antel on the noise 

survey testified that Antel told Callanan management representatives that 

a muffler designed by MSHA's Denver Technical Support Center had achieved 

a 4 to 5 dBA reduction on drills that were "similar" to the Ingersoll-Rand 

drill being surveyed. The supervisory inspector also testified that Antel 

qualified that statement by adding that unlike the "similar" drills 

referred to, the Ingersoll-Rand air track drill posed a problem for the 

attachment of a muffler because it exhausted through the chain in its mast. 

6/ In general, Mr. Antel's qualifications in the field of noise control 

are as follows. Antel has been employed in the area of acoustics for 

approximately 16 years. He began working for MSHA in 1972. From that 

time up to the time of the hearing, Antel had directly participated in 

200 to 300 noise cases. A substantial portion of Antel's duties with HSH.A 

is to suggest noise control measures. Prior to working for MSHA, Antel 

was employed by a private concern as a consultant in sales and service of 

audiological testing equipment for use in hearing conservation programs. 

Before that, Antel was employed by the University of Pittsburgh as a 

technician in the acoustics department. At the hearing, the judge 

referred to Antel as an "expert". Callanan did not challenge Antel's 

expertise in the field of noise control. 

·7/ On the basis of the Tech Support noise survey, the Secretary sought 

to prove that feasible noise controls did in fact exist which Callanan 

should have implemented. 

1903 
The MSHA supervisor's testimony also indicated that Antel had informed 

Callanan of the existence of a company in Joplin, Missouri, that could 

possibly retrofit (i.e., modify) the shell of the air track drill so 

that a muffler could be attached. However, at the time of the MSHA Tech 

Support survey, Callanan was not provided with any specific details 

regarding the drill shell modification process; 

On April 23, 1979, MSHA Tech Support issued its "Noise Survey 

Report" containing the results of the noise survey on the Ingersoll-Rand 

air track drill. Gov. Exh. 6. 8/ A copy of the noise survey report was 

sent to Callanan. In the report, MSHA proposed two noise controls that it 

believed together would reduce the drill operator's exposure to noise to 

89-90 dBA for an 8-hour period, bringing Callanan within compliance limits. 

One of the proposals involved an engineering control. In that regard, MSHA 

suggested that Callanan modify the shell of the air track drill so that it 

would exhaust through a port in its side, instead of through the chain in 

its mast, thereby allowing a muffler to be attached. More specifically, 

the noise survey report stated: 

A muffler should be placed on the drill to reduce 

the noise level of the exhausting air. This can readily 

be done by making certain modifications to the drill cylinder. Since welding is required, extreme care is necessary to avoid distorting the cylinder. This tedious 

undertaking should be left to experienced professionals 

in this field. The Hid-Western Machinery Company [fn. 

omitted] (P .0. Box 458, 902 E. Fourth Street, Joplin, 

Missouri 64901, telephone number: (417) 624-2400) will 

make this modification and have been doing so for many 

years. The cost for this work [is] as follows: 

Cost of cylinder - $3,198.00 

Less 25% 799.50 

$2,398.50 

Noise Survey Report at 2. The report added that certain parts needed for 

the conversion of the drill cylinder would increase the cost of modifying 

the drill shell to $2,672.78. 

The noise survey report also stated that Callanan could either purchase 

a muffler commercially or could construct one itself. Attached to the 

noise survey report was a publication titled Sound and Vibration, listing 

various companies engaged in the business of noise control. Also attached 

was a copy of MSHA's Instruction Manual for the Construction of Cylindrical 

Mufflers. Gov. Exh. 7. 9/ In the report, MSHA concluded that the attachment 

of a muffler would result in a noise reduction of approximately 5 dBA. 

8/ The report was prepared by Antel. 

9/ The noise survey report did not, however, list the cost of a commercially 

purchased muffler. Nor did it list the cost involved in the event that 

Callanan chose to construct a muffler itself. However,. at the hearing Antel 

testified that in 1977, the preceding year, a muffler kit for a slightly 

smaller drill could be purchased from the EAR Corporation for approximately 

$175. Antel also testified that the labor required for construction of a 

muffler would probably be an 8-hour day. 

1904 
The other control proposed in the noise survey report involved 

positioning the operator of the air track drill 20 to 25 feet away from 

the drill after it was put into operation. On the basis of an expected 

5 dBA reduction in noise resulting from the drill shell modification and 

the attachment of a muffler, MSHA concluded that the positioning of the 

drill operator 20 to 25 feet away from the drill would reduce the driller's 

exposure to noise to a permissible level of 89-90 dBA for an 8-hour period. 10/ 

Thereafter, the Secretary filed with the Commission a proposal for 

assessment of a penalty for the alleged violation.of section 56.5-50. 11/ 

At the hearing; Callanan generally defended on the ground that the proposed 

drill shell modification was infeasible because it was too costly to transport 

the Ingersoll-Rand air track drill from its stone quarry in upstate New York 

to the Mid-Western Machinery Company in Joplin, Missouri, for retrofitting. 12/ 

The Secretary generally argued that the proposed engineering control -- the 

modification of the air track drill shell and the muffler attachment -- was 

feasible because it was both technologically achievable and reasonable from a 

cost standpoint. 

III. Judge's Decision 

In his decision the judge held in Callanan's favor and vacated the 

noise citation. The judge, in effect, concluded that the determination of 

feasibility involves a consideration of both technological and economic 

factors. 3 FMSHRC at 169. He found that with respect to the proposed 

engineering control, the Secretary's cost estimate was "too imprecise to 

allow a proper economic analysis" and further, that "[w]ithout more accurate 

figures, a true cost-benefit analysis cannot be made." 3 FMSHRC at 170. 13/ 

He also stated that: 

10/ On review, however, only the feasibility of the engineering control is 

at issue. The Secretary did not seek Commission review of the aspect of the 

judge's decision concerning the feasibility of the proposed administrative 

control. 

11/ In June 1979, an MSHA inspector had issued an order of withdrawal 

under section 104(b) of the Mine Act because Callanan had not abated the 

citation at issue here by implementing feasible noise controls. After 

the withdrawal order was issued, Callanan removed the Ingersoll-Rand drill 

from active service and replaced it with a new Gardner-Denver drill at an 

approximate cost of $100,000. The validity of the section 104(b) withdrawal 

order is not, however, before the Commission in this case. 

12/ Callanan's safety director testified that the involved air track drill 

was valued unrer $2,500. 

11/ The judge found the Secretary's cost estimate to be insufficient 

because it did not include the cost of a muffler, certain labor costs and 

the cost of transporting the Ingersoll-Rand air track drill from upstate 

New York to Joplin, Missouri for retrofitting. 3 FMSHRC at 170. 

1905 
In any event, regardless of the accuracy of MSHA's 

cost estimates, I do not find on the facts of this 

case any reasonable assurance that there would be 

an appreciable and corresponding improvement in 

working conditions as a result of the proposed controls. 

(3 FMSHRC at 170; emphasis added.) l!:._/ Accordingly, the judge vacated the 

citation. 

IV. Discussion 

As we stated at the outset of our opinion, the broad question presented in this case involves the meaning of the term "feasible" in 30 C.F.R. 

§ 56.5-50(b). Subsection (b) of the noise standard provides that in the 

event that the noise exposure levels set forth in subsection (a) are 

exceeded, "feasible administrative or engineering controls shall be 

utilized." Here, it is undisputed that the drill operator's noise 

exposure level was 103.6 dBA, thus exceeding the maximum permissible 

level of 90 dBA for an 8-hour period. 15/ The controversy centers on 

whether the proposed engineering control--modifying the air track drill 

shell and attaching a muffler--is "feasible" within the meaning of 

section 56.5-50(b). 

The standard at issue was originally promulgated and adopted by the 

Secretary of Interior under the Federal Metal and Non-Metallic Mine Safety 

14/ The judge in part noted that the MSHA noise control engineer did not 

know the specific degree of noise reduction expected to be achieved as a 

result of implementing the proposed engineering control, but could only 

"speculate" that a 5 dBA reduction "might" be obtained. 3 FMSHRC at 170. 

15/ While Callanan does not contest the accuracy of the noise survey 

results obtained by either the inspector or the Technical Support Center 

noise control engineer, it does argue that the MSHA noise samples were 

taken from the wrong noise source. In that regard, Callanan contends 

that the noise samples should have been collected from inside the 

driller's earmuffs. (Here a subsequent noise survey conducted on the 

track drill by Callanan showed that under normal operating conditions, 

the earmuffs reduced the drill operator's exposure to noise to within 

permissive limits. Tr. 209-210.) Instead, the MSHA noise samples 

were collected from within the driller's hearing range, but outside 

of the earmuffs in accordance with MSHA's inspection manual. Tr. 40-41. 

We reject Callanan's argument that noise levels are to be measured 

inside earmuffs as being inconsistent with the express language of the 

noise standard. Measuring noise exposure in the manner suggested by 

Callanan would allow operators to proceed directly to the use of 

personal protective equipment without first attempting to implement 

feasible engineering controls. This result is contrary to the intent 

of the noise standard. Todilto Exploration and Development Corporation, 

5 FMSHRC --- (CENT 79-91-RM; 79-310-H, decided November g, 1983). 

1906 
Act of 1966, 30 U.S.C. § 725 (1976)(amended 1977). Pursuant to section 

30l(b)(l) of the Federal Mine Safety and Health Amendments Act of 1977, 

30 U.S.C. § 96l(b)(l), this standard remained in effect as a mandatory 

standard enforceable under the 1977 Mine Act. No indication is provided 

in the preamble to the standard published in the Federal Register (39 Fed. 

Reg. 28433, Aug. 7, 1974), the text of the 1966 Act, or that Act's legislative history as to the intended meaning of the word "feasible" as used 

in the standard. Furthermore, the preamble to the standard acknowledged 

that the noise standard being adopted was "essentially the same as the 

noise standard being enforced by the Secretary of Labor under the WalshHealey Act", 41 U.S.C. §§ 35-45. 39 Fed. Reg. 28433. An examination of 

the Walsh-Healey Act and its legislative history, as well as the history 

of the noise standard adopted under that Act, likewise provides no clue 

to the intended meaning of the word "feasible" in the noise standard. 

In view of the fact that the word "feasible" was not given any special 

meaning by the promulgators of the standard, or by Congress in the statute 

authorizing adoption of the standard, we must attribute to the word its 

ordinary and plain meaning. The Supreme Court has held that the plain 

meaning of the word "feasible" is "capable of being done, executed, or 

effected." American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 508-509 

(1981). Accordingly, we will apply this >neaning to "feasible" as used in 

30 C.F.R. § 56.5-50(b). l!?_/ 

We further conclude that the determination of whether use of an 

engineering control to reduce a miner's exposure to excessive noise is 

capable of being done involves consideration of both technological and 

economic achievability. This conclusion also stems from the plain meaning 

of the word as found by the Supreme Court. Whether something is actually, 

rather than theoretically, capable of being done depends on economic as 

well as technological achievability. This reality was recognized in 

American Textile Hfs., supra, where the Supreme Court gave detailed 

examination to the question of the economic feasibility of an occupational health standard. In fact, the Secretary does not argue otherwise 

in this case, but concedes that hi"S"S"tandard "involves some element of 

economic impact." Sec. Br. at 16 (emphasis added). 

Our conclusion that use of an engineering control must be both 

technologically and economically capable of being done does not, however, 

end our inquiry into the general interpretation of the standard. Rather, 

we must examine more closely what is generally meant by "technologically 

capable of being done" and "economically capable of being done." 

In answering the above questions, the ultimate purpose and the 

basic structure of the noise standard must be kept foremost in mind. 

The standard seeks to protect miners from exposure to noise levels in 

excess of the limits specified in the standard. Where excessive noise 

16/ But see Donovan v. Castle & Cooke Foods, Inc., No. 77-2565, 9th Cir., 

November 19, 1982. 

1907 
levels are present, feasible engineering controls are required to be 

implement.ed. Quite obviously, the purpose of an engineering control 

is to reduce excessive noise levels and, therefore, the first component of a feasible engineering control is that it be a control the 

implementation of which will result in a reduction of the noise 

level to which a miner is exposed. 

The second component of a feasible engineering control is that it 

be technologically achievable. A technologically achievable control 

is not necessarily just an "off-the-shelf," prefabricated device that 

can be applied, as is, to a noise source. Although such a device would 

be the clearest example of a technologically feasible control, an 

engineering control also is technologically achievable if through a 

reasonable application of existing products, devices or work methods 

with human skills and abilities, a workable engineering control can be 

applied to the noise source at issue. In other words, a technologically 

achievable engineering control is not one that exists only in the realm 

of engineering or scientific theory; it must have a realistic basis in 

present technical capabilities. 

The third component of a feasible engineering control is that it be 

economically achievable. The Secretary suggests two tests of economic 

achievability. The Secretary argues that a noise control is economically 

achievable "if the cost of the control is neither 'prohibitively 

expensive' nor wholly out of proportion to the expected benefits." 

According to the Secretary, the "prohibitively expensive" test of 

economic achievability, involves consideration of whether a standard makes 

"'financial viability generally impossible' throughout an entire industry." 

Sec. Br. at 24. The Secretary suggests that this consideration is "primarily" 

applicable at the rulemaking stage. He strongly implies that the impact of 

the cost of implementing a technologically achievable engineering control 

on a particular operator's profitability, competitiveness, and ability to 

stay in business is not an appropriate consideration in an enforcement 

proceeding. The Secretary, however, has not approached this question in 

any depth. Given this issue's potential importance and the complexity of 

factors bearing on its resolution, in this case we neither accept nor reject 

the Secretary's formulation and application of the "prohibitively expensive" 

rationale. Rather, as discussed infra, given the estimated cost of the 

engineering control at issue here, and the conceded ability of the operator 

to accomodate this cost without threatening its viability, we find that the 

cost of the suggested control cannot be considered "prohibitively expensive" 

under any reasonable interpretation of that phrase. See American Textile 

Manufacturers Institute v. Donovan, supra, 452 U.S. a"t"530 n.55. 

The second test for economic achievability suggested by the Secretary 

is whether the cost of the engineering control is "wholly out of proportion to the expected benefits." The Secretary states that this test is 

"basically one of 'rationality"' requiring analysis of "whether the 

control can be expected to achieve anv significant result and whether 

the costs are~ great that it wouldl;e irrational to require the use 

of the control to achieve those results." Sec. Br. at 24, 25 (emphasis 

added). Insofar as "irrational" means unreasonable, impractical or 

unrealistic, we believe that this interpretation and ap~lication of the 

1908 
economic achievability component of the term "feasible" as used in the 

noise standard is reasonable and appropriate. It gives effect to the 

basic purpose of the standard, i.e., the reduction of noise and the 

concomitant protection of minerS'hearing, bu·t at the same time gives 

meaning to the standard's use of the term "feasible," which includes 

economic cost factors. It is important to emphasize that this test of 

economic achievability does not require, and we do not suggest or approve, 

application of classic, cost-benefit analysis. Jl_/ 

Therefore, because in the present case the question of whether the 

suggested engineering control is "prohibitively expensive" is not an issue, 

we hold that the economic feasibility of the control is to be determined by 

consideration of whether the economic costs of the control are wholly out of 

proportion to the expected benefits, i.e., whether given the reduction in 

noise level to which a miner would be exposed after implementation of the 

control, and the costs of achieving that reduction, it would not be rational 

to require the implementation of the control. We believe this is as precise 

a formulation as can be articulated and applied on a case-by-case basis in 

enforcement proceedings. 

Our next consideration is the appropriate burden of proof to be applied. 

We hold that in order to establish his case the Secretary must provide: (1) 

sufficient credible evidence of a miner's exposure to noise levels in 

excess of the limits specified in the standard; (2) sufficient credible 

evidence of a technologically achievable engineering control that could 

be applied to the noise source; (3) sufficient credible evidence of the 

reduction in the noise level that would be obtained through implementation of the engineering control; (4) sufficient credible evidence supporting 

a reasoned estimate of the expected economic costs of the implementation 

of the control; and (5) a reasoned demonstration that, in view of elements 

1 through 4 above, the costs of the control are not wholly out of proportion to the expected benefits. After the Secretary has established each 

of the above elements, the operator in rebuttal may refute any of the 

components of the Secretary's case. The burden borne by the operator is 

one of production; the burden of proof remains on the Secretary. 

Although, as explained below, we conclude that a remand for further 

proceedings is appropriate in this case, for the guidance of the parties 

and the judge we will tentatively apply the burdens outlined above to 

the facts of this case as established by the present record. 

We find that the record establishes that the drill operator was in 

fact exposed to an excessive noise level. The judge stated that it was 

undisputed that the air track drill operator was overexposed to noise 

and we agree that the Secretary established that the drill operator was 

exposed to excessive noise. 

17/ To paraphrase the Supreme Court: "Thus cost-benefit analysis •.• 

is not required by the [standard] because feasibility analysis is." 

American Textile Mfrs., supra, 452 U.S. at 509. 

1909 
The next consideration is whether the Secretary presented credible 

evidence as to the availability of a technologically achievable engineering 

control capable of reducing the drill operator's exposure to excessive 

noise. In this regard, the judge made no specific finding as to whether 

the proposed engineering control of modifying the air track drill shell 

and attaching a muffler was technologically achievable. On the basis of 

the record, however, we find that the Secretary presented sufficient 

credible evidence supporting his view that the proposed engineering 

control was both technologically achievable and capable of reducing noise. 

We base this conclusion upon the MSHA Pittsburgh Tech Support's noise 

survey report and the corresponding testimony of Jerry Antel, the lead 

noise control engineer who conducted the MSHA noise survey and prepared the 

report. In the noise survey report (Gov. Exh. 6), MSHA proposed that Callanan 

modify the air track drill so that a muffler could be attached. MSHA concluded that the modification process could "readily be done" and that the 

Mid-Western Machinery Company in Joplin, Missouri, "will make this modification and have been doing so for many years." The report added that "[a] 

muffler may be purchased commercially or constructed according to the 

enclosed instructions." In addition, at the subs-equent hearing, Antel 

disputed the claim made by the Ingersoll-Rand Corporation in its December 7, 

1978, letter to Callanan in which it advised that the air track drill could 

not be equipped with a muffler. In that regard, Antel stated that it has 

been "pretty much the rule" that manufacturers of pneumatic drills, the 

type of drill involved here, have erroneously taken the position that noise 

controls did not exist for such drills. He added: 

We've worked with drill manufacturers in the past and 

its been our experience that generally they're speaking of 

an off the shelf type of this retrofittable noise control, 

something that can be readily applied which doesn't necessarily 

mean that nothing can be done. And with this approach in mind, 

we decided that we would explore the possibilities further to 

see if in fact that this was true, that nothing could be done. 

(Tr. 112-113.) Accordingly, An~el contacted the Mid-Western Machinery 

Company. 

With respect to Mid-Western, Antel testified that it had "vast experience" 

in the Canadian mining industry and further, that it had experience in 

modifying the Ingersoll-Rand CM-2 air track drill so that a muffler could 

be attached. The MSHA supervisory inspector who accompanied Antel on the 

noise survey stated, without objection, that he was told by Antel that 

Mid-Western already had an air track drill shell retrofitted so that a 

muffler could be attached and that the retrofitted shell could be shipped 

to Callanan. Thus, despite the fact that Antel testified that he was told 

by Mid-Western personnel that they could not recall the names of the 

Canadian operators for which the muffler modification work had been done 

and that the work "had been done in years past", this testimony is 

sufficient to make a prima facie showing that the proposed engineering 

control was technologically achievable. 

1910 
The third element of the Secretary's prima facie case involves 

evidence as to the noise level reduction that would be obtained from the 

proposed control. Here, the judge stated that "even HSHA's expert conceded 

that he did not know what specific degree of noise reduction could be 

achieved from his proposed controls and could only speculate that a 5-decibel 

improvement might be expected based on MSHA's experience with muffling other 

types of drills." 3 FMSHRC at 170. We find this assessment of the expert's 

testimony erroneous. In that regard, we note that Antel testified in part 

as follows: 

[Counsel for the 

Secretary] 

[An tel] 

(Tr. 127.) 

Q. You also state that ••• you are 

assuming a reduction of S decibels 

from the muffler. 

A. Yes. 

Q. What was the source of that 

particular information? 

A. Through past work in drills 

with Tech Support and work that 

has been done through contractual 

work with the Bureau of Nines, 

it's been determined that exhaust 

noise is the prinary noise source 

on percussive drills -- pneumatic 

drills. That besides the fact that 

we have worked with a number of 

drills in putting mufflers on them 

and in all cases a 5 dB reduction 

has been the minimum amount that 

we have achieved by putting a 

muffler on. 

Q. Is it your opinion then that a 5 

decibel reduction from the muffler 

is a conservative estimate? 

A. Yes, I would say so. 

This testimony regarding the degree of noise reduction expected to be 

achieved cannot properly be viewed as speculative. Nor does the above testimony constitute some kind of concession as the judge suggests. Rather, the 

noise control engineer simply stated that based upon past experience, 

attaching a muffler to the air track drill would result in a noise reduction 

of at least 5 dBA. The MSHA supervisory inspector likewise testified that 

the attachment of a muffler on similar drills had resulted in a 5 dBA 

reduction. Tr. 83. Thus, we find that the Secretary's evidence established 

a prima facie case as to this element. 

1911 
The next element of the Secretary's prima facie case requires sufficient credible evidence supporting a reasonable estimate of the cost of 

implementing the proposed control. Here, MSHA's noise survey report placed 

the cost of modifying the drill shell at approximately $2,672. In addition, 

Antel testified that a muffler kit for a slightly smaller drill cost about 

$175 in the preceding year. The noise control engineer also estimated that 

the time required for constructing the muffler would probably be an 8-hour 

day. Although the Secretary did not introduce evidence establishing the 

precise cost of attaching the muffler or the cost of transporting the drill 

shell from Callanan's quarry in upstate New York to the Mid-Western Machinery 

Company in Joplin, Missouri for retrofitting, we conclude that the 

Secretary's cost estimates are sufficiently specific and supported for 

purposes of establishing a prima facie case. 

In summary, we hold that the Secretary has introduced sufficient credible 

evidence establishing that the operator of the air track drill was exposed to 

excessive noise, that an engineering control capable of reducing noise was 

technologically achievable, that the engineering control was expected to 

obtain a significant noise reduction, and that the cost estimates for implementing the control were sufficiently precise and supported. We further 

conclude that the Secretary has demonstrated, based on the above, that the 

costs of the control are not wholly out of proportion to the expected 

benefits. Therefore, in our view, the Secretary established a prima 

facie violation of the noise standard. 

On the basis of the present record, we would further hold that Callanan 

failed to rebut the Secretary's prima facie case. In that regard, the 

Ingersoll-Rand letter stating that the drill could not be equipped with a 

muffler does not alone overcome the testimony of MSHA's noise control engineer 

that a muffler could in fact be attached. Also, Callanan's safety director 

testified that the Ingersoll-Rand sales engineer who had written that letter, 

upon later reviewing the MSHA Tech Support noise survey report, stated that 

the proposed engineering control was not feasible from a cost standpoint --

not that the retrofitting could not be done. Tr. 255-256. Furthermore, 

Callanan's quarry supervisor, although not familiar with the type of drill 

involved here, testified that the drill probably could be retrofitted, but 

that it would be an involved process. Tr. 194. Thus, Callanan failed to 

rebut the Secretary's proof that the suggested modification of the drill 

shell was technologically achievable. 

In addition, Callanan introduced no evidence to the effect that the 

potential benefits expected to be obtained as a result of the proposed 

engineering control were less than the predicted 5 dBA reduction in noise 

or that the estimated cost of implementing the control was more than MSHA 

projected. Instead, Callanan principally argued that in view of the 

age of the involved air track drill and its approximate value of under 

$2,500, it was infeasible from a cost perspective to require it to ship the 

drill to the Mid-Western Machinery Company for the modification of the drill 

shell. We do not find that argument to he of sufficient specificity or merit 

to rebut the Secretary's prima facie case. In sum, on the basis of the 

record as it presently stands, we would conclude that Callanan has not 

rebutted any of the individual elements of the Secretary's case, nor has 

it established that, on the whole, the estimated costs of the suggested 

engineering control are wholly out of proportion to the expected benefits. 

1912 
Nevertheless, in the circumstances of this case, and given the extensive 

and confusing history of litigation under the noise standard, we are not 

inclined to interpret for the first time at the review level the word "feasible" 

as it appears in 30 C.F.R. § 56.5-50(b) and render a final determination against 

Callanan for failing to anticipate our interpretation and allocation of the 

burden of proof. We believe that the rights of the parties involved, as well 

as the spirit of the Mine Act, are best served by remanding this case to allow 

both parties the opportunity to submit additional evidence, if they choose to 

do so, and to frame any further arguments in the light of our decision. We 

note that the violation at issue was abated by removing the involved drill 

from service. Therefore, the remand has no adverse impact on the health 

of miners. 

Accordingly, the decision of the judge is reversed and the case is 

remanded for further proceedings consistent with this decision. 

L. Clair Commissioner 

1913 
Commissioner Lawson dissenting: 

As the majority recognizes in reversing the decision of the judge 

below, his use of a "cost-benefit" criterion to determine whether there 

is a violation in this case is inexplicable given the facts of this case 

and the language of the Act. It is, however, unprecedented that this 

reversal is accompanied by an invitation to the parties--in actuality, 

of course, only the operator--to retry this case, since even under my 

colleagues' view of the law, the Secretary has established a prima facie 

case which the· operator has failed to rebut. Elongation of this proceeding thus fails to comport with even minimal standards of judicial economy, 

nor does the majority suggest what "additional evidence" (slip op. at 14) 

should be presented, in view of the Secretary's admittedly having proven 

a violation of the Act. 

Callanan did not challenge the accuracy of the noise survey results 

submitted by the Secretary's inspector, and it is undisputed that the 

noise exposure level (103 dba) substantially exceeded the maximum level 

permissible for an eight-hour period (90 dba); indeed the exposure was, 

as the majority notes, 660% of the level permitted. 1./ Slip op. at 3. 

There is no dispute, either, that the Secretary proved that the 

proposed engineering control was technologically feasible. ll Nor is 

there any disagreement that a technologically feasible control is not 

limited to off-the-shelf, stock or prefabricated devices, and that the 

proposed engineering control was expected to achieve a significant noise 

reduction. The control of noise at its source is obviously critical, in 

order that miners can detect other mine hazards. 

However, the majority has now mandated its own substantively indistinguishable "cost-benefit" analysis in this--and indeed all other--

safety and health cases in which a claim is made that the "cost" of 

preventing death or illness to miners, outweighs the health or safety 

"benefits" to be gained. 

Even more contradictory is the majority's position that "a classic, 

scientific "cost-benefit analysis"--is not imposed by either the statute 

or the standard," (slip op. at 10) but that determination of the feasibility of the control required under the standard is now to be had "by 

consideration of whether the economic costs of the control are wholly 

out of proportion to the expected benefits" (slip op. at 10). This test 

in reality leaves unchanged the rule imposed by the judge below. A costbenefit determination is imposed, subject to all the impossibilities of 

proof and application which have plagued adjudicators for over a decade. 

l./ The legislative history of the Act reflects the fact that hearing loss 

has been found to be "probably the most common condition among metalnonmetal miners," and notes that up to 25 percent of currently employed 

miners may suffer from some degree of hearing impairment. H. Conf. Rep. 

95-312, 95th Cong., 1st Sess. 12-13 (1977). 

2/ Callanan has conceded that there is no element of financial inability 

O'n its part to buy any machine on the market, and that it was this operator's 

choice to purchase a new drill, rather than retrofit the existing unit (oral 

arg. 22-24). 

1914 
The conclusion of the judge below and the majority here, that in 

determining whether "feasible" ••• engineering controls shall be utilized", 

economic factors are to be taken into account, is not reflected in the 

language of the Act. Slip op. at 8, 9. Nor does the standard itself, 

although lengthy and detailed, include even a hint, much less a requirement, 

that cost-benefit analysis is required or appropriate, nor the possible 

extent to which economic factors might be relevant. 

Economic considerations were not written into the standard when it 

was initially promulgated under Walsh-Healey, nor upon repromulgation under 

the Mine Act. How, then, can it be maintained that Congress intended to 

introduce such a factor into the litigation of cases in which the 

Secretary seeks to enforce a mine safety and health standard, derived 

from an already established federal standard? Indeed, reading the 

standard to include economic as well as technological feasibility, in 

determining whether a violation of the Act has occurred, relieves 

employers of their continuing duty to develop and implement engineering 

controls. Claimed present economic difficulties will therefore be 

allowed to vitiate the technology forcing process recognized in the 

standard. See Society of Plastics Industry, Inc. v. OSHA, 509 F.2d 1301, 

1309, cert denied. 421 U.S. 992 (1975) and Secretary of Labor v. Continental 

Can Co~y, 4 BNA OSHC 1541, 1550 (1976). 

Strikingly, the majority's claim that the asserted silence of the 

Act and its legislative history compels the conclusion that economic 

feasibility is properly to be read into the language of this regulation, 

departs radically from this same majority's very recent reading of the 

Act and the regulation involved in UMWA v. Secretary of Labor, 5 FMSHRC 

807 (May 11, 1983) pet.for review filed No. 83-1519 (D.C. Cir. May 13, 

1983). In that case they found that silence led to the opposite conclusion, and that one could not properly infer therefrom any right of miners 

to contest citations. Id at 815. 

Even given my colleagues contradictory analytical approaches, 

however, there is no dispute that the "plain meaning" of feasible is 

"capable of being done, executed or effected." Slip op. at 8. Nowhere 

in any dictionary of which I am aware is feasible modified, either 

explicitly or implicitly, by "provided it's done cheaply enough". 

Further, as a matter of English grammar, "feasible", an adjective, 

must and does modify a noun, in this case "controls". Adding "cheaply", 

to reach the result propounded by the majority, is no more defensible or 

persuasive than would adding "expensive" to the regulation, or "best". 

Indeed, the latter construction would far more closely comport with the 

purpose of the Mine Act, "to prevent death and serious physical harm". 

30 u.s.c. § 801. 

1915 
Procedurally, the Mine Act requires immediate abatement of violations, 

as contrasted with the Occupational Safety and Health Act and its litigate 

first-abate· later structure. Energy Fuels Co., 1 FMSHRC 299, 306, n. 9 

(1979). Compare also section 6(b) 7 of the Occupational Safety and Health 

Act and Section 10l(a)(7) of the Mine Act; the former mandates standards, 

"necessary for the protection of employees"; the latter mandates standards 

which " .•• assure the maximum protection of miners". 29 U.S.C. § 655(b)(7) 

and 30 U.S.C. § 8ll(a)(7), respectively. See Ashton v. Pierce, 716 F.2d 56 

at 62-63 D. C. Cir. (1983). To add a cost benefit qualification to the 

mandatory standards promulgated under our Act clearly lessens the protection 

furnished miners, subverting thereby the congressional intent that those 

employed in this most dangerous of industries be provided commensurate 

safety and health assurances. 1977 Act Legis. Hist. at 595. "Maximum" is 

nowhere modified by any economic feasibility limitations. 

The majority in its only citation of precedent, selectively if 

obliquely commends the Supreme Court's decision in The American Textile 

Manufacturers Institute, Inc. v. Donovan, et al, 452 U.S. 490 (1981). 

The operative language in that opinion, affirming the decision of the 

Court of Appeals, (617 F.2d 636 D.C. Cir. 1980) is: 

The plain meaning of the word "feasible" supports respondents' (the Secretary's) interpretation of the statute. 

According to Webster's Third New International Dictionary 

of the English Language, "feasible" means "capable of 

being done, accomplished or carried out"); Funk & Wagnalls 

New "Standard" Dictionary of the English Language 903 

(1957) ("That may be done, performed or effected"). Thus, 

§ 6 (b)(5) directs the Secretary to issue the standard 

that "most adequately assures .•. that no employee will 

suffer material impairment of health," limited only by 

the extent to which this is "capable of being done." In 

effect then, as the Court of Appeals held, Congress itself 

defined the basic relationship between cost and benefits, 

by placing the "benefit" of worker health above all other 

considerations save those making attainment of this "benefit" 

unachievable. Any standard based on a balancing of costs 

and benefits by the Secretary that strikes a different 

balance than that struck by Congress would be inconsistent 

with the command set forth in§ 6 (b)(5). (Citation omitted) 

(Emphasis added.) (PP. 508, 509). 

When Congress has intended that an agency engage in 

cost-benefit analysis, it has clearly indicated such 

intent on the face of the statute. One early example 

is the Flood Control Act of 1936, 33 U.S.C. § 710a. 

"[T]he Federal Government should improve or 

participate in the improvement of navigable 

waters or their tributaries, including watersheds thereof, for flood-control purposes if 

the benefits to whomsoever they may accrue are 

in excess of the estimated costs, and if the 

lives and social security of people are otherwise 

adversely affected. 11 (Emphasis in original.) 

1916 
A more recent example is the Outer Continental Shelf Lands 

Ac·t Amendments of 1978, 43 U.S.C. § 1347 (b), providing 

that offshore drilling operations shall use 

"the best available and safest technologies which 

the Secretary determines to be economically f easible, wherever failure of equipment would have a 

significant effect on safety, health, or the 

environment, except where the Secretary determines 

that the incremental benefits are clearly insufficient 

to justify the incremental costs of using such technologies." (Emphasis in original.) 

These and other statutes demonstrate that Congress uses 

specific language when intending that an agency engage 

in cost-benefit analysis. See Industrial Union Department 

v. American Petroleum Institute, supra, slip op. at 23, 

n. 27 (Marshall J., dissenting). Certainly in light of 

its ordinary meaning, the word "feasible" cannot be construed to articulate such congressional intent. We therefore 

reject the argument that Congress required cost-benefit 

analysis in§ 6 (b)(5). (Emphasis added.) 

This precedent thus rejects the analysis approved by the majority 

here, and indeed reaches a contrary result. The Secretary's position, in 

which he is perhaps reacting to his perception of what is currently 

popular, rather than to any statutory imperative, is similarly deficient, 

and contrary to the position he has advanced in prior litigation. 

Secretary of Labor v. Castle & Cooke Foods, 692 F.2d 641, 645, 9th Cir., 

(1982), Turner Company v. Secretary of Labor, 561 F.2d 82, 83, 7th Cir. 

(1977), Secretary of Labor v. Sun Ship, Inc. 11 BNA OSHC 1028, 1030 (1982), 

Secretary of Labor v. Samson Paper Bag, 8 BNA OSHC 1515, 1520 (1980), and 

Continental Can Company, supra at 1548-1549. 

Since the drafters of the Mine Act obviously knew how to deal with 

business costs, as exemplified by section llO(i) of this Act, 11 it would 

appear beyond dispute that there was no intent on their part to apply 

cost-benefit analysis in the implementation of required engineering 

controls, contrary to my colleagues' construction of the Act. This 

specific reference to costs, as they may impact upon an employer's 

ability to continue in business, as a result of the compliance mandated 

3/ In assessing civil monetary penalties, the Commission shall consider 

11 ••• the effect on the operator's ability to continue in business .... " 

30 u.s.c. § 820(i). 

1917 
by the statute, has no counterpart in the Occupational Safety and tlealth 

Act. If one is searching for a quantifying mechanism to determine the 

possible economic impact of compliance, the penalty provisions of the 

Mine Act certainly direct us to a more relevant.reference point. !±_/ 

The majority is therefore at best disingenuous in requiring that 

" the economic feasibility of the control is to be determined by 

consideration of whether the economic costs of the control are wholly 

out of proportion to the expected benefits; i.e., whether given the 

reduction in the noise level to which a miner would be exposed after 

implementation of the control, and the cost of achieving that reduction, 

it would not be ·rational to require the implementation of the control". 

Slip op. at 10. (Emphasis added.) 

Thus, and contrary to Congressional intent, the majority will now 

require a cost-benefit test to be applied in every case, asserting 

that this is "reasonable and appropriate." Slip op. at 10. In truth, 

the criteria now to be imposed is totally subjective, has no foundation 

in the statutory language, and would encourage this Conunission and its 

judges to undertake economic speculation of a particularly dangerous--to 

miners--variety. 

The conscientious operator who complies with the Act, and utilizes 

state-of-the-art drills, will now be disadvantaged by comparison with 

his less scrupulous competitors, who will henceforth be encouraged to 

neglect their equipment and facilities, rewarded for this neglect, and 

motivated to plead poverty when their--equal--compliance with the law is 

sought. Uniform application of a standard can realistically be obtained 

only at the time that a standard is promulgated, not in individually 

initiated enforcement proceedings. 

!±_/ At least one view at the Occupational Safety and Health Review 

Commission is that economic considerations, under that statute, could 

only be taken into account with respect to setting an appropriate abatement time: 

We can fulfill the Act's stated purpose of improving 

the safety and health of American workers, and at the 

same time give due consideration to the realities of 

the marketplace, by requiring all employers to meet the 

standard's requirements, and then adjusting the abatement period for those financially incapable of proceeding with abatement at a more rapid pace. Samson Paper 

Bag, 8 BNA OSHC 1515, at 1525. (Conunissioner Cottine 

concurring)(l980). 

Whether this interpretation would conform to Congressional intent 

under the Mine Act has not been determined, but would be in closer conformity to the statute than the majority's proposed treatment of costs 

and benefits. 

1918 
How the "rationality" test is to be distinguished from that of 

whether a proposed control is "prohibitively expensive" (not here in 

dispute) is left unexplained, both by the Secretary and the majority. 

The Secretary appears to be asserting that if the control is, in some 

undefined manner, too costly, you need not implement engineering controls 

under either test. No intelligible structural analysis of how one 

determines whether the cost is so great that it would be "irrational" to 

require the use of the engineering control to achieve those results is 

given, by either the majority or the Secretary (the latter apparently 

keeps these decisions in pectore). ]_/ 

The majority also fails to explain or delineate how one arrives at 

a determination that the "costs of control are wholly out of proportion 

to the expected benefits." Slip op. at 9, 10. This is apparently to 

be left to the unfettered discretion of the judge, whose decision, given 

that 'standard', will be impossible of review. 

Finally, placing the burden of proof on the Secretary to establish 

the "expected economic cost of the implementation of controls", to use 

the majority's phrase "would not be rational." Slip op. at 10. No 

explanation is given as to how the Secretary is to ascertain such cost; 

in truth, he will be at the mercy of the operator's no doubt generous, and 

understandably self-serving, figures. !:._/ 

The practical problems presented by the majority's imposition of a 

cost-benefit test, however described, are also immense. As amicus 

Steelworkers has noted, citing a recent and commendably thorough Congressional 

Report, 7/ one needs to know the adverse effects created by the exposure to 

noise, the inescapable fact that health benefits do not lend themselves 

to monetary measurement, and that both costs and benefits occur over different 

periods of time. The quantifying of benefits is thus at the least made 

extraordinarily difficult, if not impossible. 

5/ See oral argument by the Secretary, pp. 10-12 for further "enlightenment". 

6! Inconsistent disclosures of financial information to different federal 

agencies, depending upon the purpose for which such data is submitted, provides one example of the perils of ascertaining accurate economic data, much 

less truth, in the area of cost impact in a safety and health case. (House 

Report, infra, n. 7, pp. 11-16.) 

7/ Cost-Benefit Analysis: Wonder Tool or Mirage, Subcommittee on Oversight 

and Investigation of the House Committee on Interstate and Foreign Cow.merce, 

96th Congress, 2d. Sess., December 1980; Committee Print 96 IFC-62. (House 

Report). 

1919 
In the legislative history of the 1977 Act, cost-benefit analysis 

was specifically discussed, but--significantly--only with respect to 

§ 10l(a)(6)(A), the statutory authority for the Secretary to set health 

standards regulating harmful physical agents. Strict cost-benefit 

analysis, even at that stage, was rejected by the Congress, and nowhere 

reflected in the history of the Act is any intention that cost-benefit 

analysis is to play any part in enforcement proceedings. As the Senate 

Report states: 

Informa~ion on the economic impact of a health standard 

which is provided to the Secretary of Labor at a hearing 

or during the public comment period, may be given weight 

by the Secretary. In adopting the language of section 

[10l(a)(6)(A)] the Committee wishes to emphasize that it 

rejects the view that cost benefit status alone may be the 

basis for depriving miners of the health protection which 

the law was intended to insure. 1977 Act Legis. Hist. at 

609-610, emphasis added.) 

Clearly, given this history, cost-benefit analysis would, if ever, 

be appropriate for consideration only at the time regulations are 

promulgated, when all affected parties within the mining community are 

given the opportunity to comment upon the particular regulation, and the 

data submitted in justification thereof. Determination through the 

enforcement mechanisms of this Commission, given the inherent limitations 

of the courtroom, and the inevitably narrow focus of any individual case, 

makes cost-benefit analysis totally unsuitable for litigative determination. 

The record necessary to make a cost-benefit analysis can be compiled 

in standard setting proceedings, but the fact customarily developed in 

individual enforcement proceedings fail to lend themselves to such analysis. 

Indeed, the probability is that the relevant data will vary significantly 

from case to case. As stated in Samson Paper Bag, (supra at 1531, n. 25) 

"[N]either the Secretary nor an individual employer could be expected to 

invest the resources necessary to generate this type of record in each 

case before the [OSHA Review] Commission". One might add that such a 

requirement is, almost by definition, beyond the capabilities of a smaller 

operator. 

Indeed, the unstated assumption that regulatory or adjudicatory, 

decisions drive up business costs, which are then passed through to the 

consumer in the form of higher prices, is in itself questionable. To 

the extent that absenteeism is decreased, and the cost of workers compensation and medical and hospital care lessened, a net benefit to the 

enterprise will obviously result. Rather than regulations imposing a 

hidden tax, it is at least equally plausible that these remove a hidden 

subsidy, one which permits operators to sell their product at market 

prices below those which would have been established if the full cost 

of production, including the health and safety consequences of such 

production, were included in the market price. See House Report, 

pp. 26-27, supra. 

1920 
In summary, the attempt by the majority in this case to import "costbenefit" into the question of determining whether a regulation has been 

violated is contrary to both the statute and its legislative history. Nor 

are any guidelines or parameters possible of implementation provided for 

undertaking such analysis. 

Experience reflects the difficulties that the Occupational Safety 

and Health Review Commission has had with the identical issue, and the 

identical standard. 8/ If costs and benefits are to be considered in 

providing miners the-"maximum" protection required by the Act, <]__/ 

authority to weigh these lies with the Congress. 

I would therefore concur in finding this operator in violation of 

this standard, that the implementation of the engineering control required 

to abate such was feasible, and would remand to the judge below solely for 

the purpose of assessing a penalty therefor. 

A. E. Lawson, Commissioner 

§_/ Castle & Cooke Foods, supra; Sun Ship, Inc., supra; Samson Paper 

Bag Co., supra; Turner Company, supra; Continental Can Company, supra; 

Society of Plastics Industry, Inc., supra, and others. 

2_/ See 30 U.S.C. § 8ll(a)(7). 

1921 
Distribution 

Harry R. Hayes, Esq. 

Hayes & Lapitina 

111 Washington Avenue 

Albany, New York 12210 

Linda Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Mary-Win O'Brien, Esq. 

Asst. General Counsel 

United Steelworkers of America 

5 Gateway Center 

Pittsburgh, PA 15222 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Cornnission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1922 

Administrative Law Judge Decisions 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 3 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

GLEN IRVAN CORPORATION, 

Respondent 

DECISIONS 

Docket No. PENN 83-25 

A.C. No. 36-03137-03502 

Docket No. PENN 83-146 

A.C. No. 36-03137-03508 

Bark Camp No. 2 

Appearances: David Bush, Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, Pennsylvania, 

for Petitioner; 

Before: 

Robert M. Hanak, Esq., Reynoldsville, Pennsylvania, 

for Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of 

civil penalties filed by the petitioner against the respondent 

pursuant to section llO(a) of the Federal Mine Safety and 

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

with 11 alleged violations of certain mandatory safety standards 

found in Parts 75, and 77, Title 30, Code of Federal Regulations. 

Respondent filed timely answers and the cases were heard in 

Pittsburgh, Pennsylvania on July 27, 1983, along with two other 

cases involving these same parties. 

Issues 

The principal issue presented in these proceedings are 

(1) whether respondent has violated the provisions of the Act 

and implementing regulations as alleged in the proposal for 

assessment of civil penalty filed, and, if so, (2) the appropriate 

civil penalty that should be assessed against the respondent 

for the alleged violations based upon the criteria set forth 

in section llO(i) of the Act. Additional issues raised are 

identified and disposed of where appropriate in the course 

of this decision. 

1924 
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 notification of the violation. 

Applicable Statutory and Regulatory Provisions 

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

95-164, 30 U.S.C. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.l et seq. 

Stipulations 

The parties stipulated that the respondent is subject 

to the Act, that I have jurisdiction to hear and decide the 

cases, that the respondent has a good history of prior citations, 

and that it is a small operator (Tr. 5; 134-137). 

Discussion 

During a colloquy on the record with counsel for the 

parties in these proceedings, it was made clear to counsel 

that the Secretary's Part 100 Civil Penalty Assessment 

regulations are not binding on the Commission or its Judges. 

It is also clear to me that under the Act all civil penalty 

proceedings docketed with the Commission and its Judges are 

de novo and that any penalty assessment t9 be levied by the 

Judge is a de novo determination based upon the six statutory 

criteria found--rn-section llO(i) of the Act, and the evidence 

and information placed before him during the adjudication 

of the case. Sellersburg Stone Company, 5 FMSHRC 287, March 1983. 

The fact that the petitioner may have determined that 

some of the violations in issue in these proceedings are not 

"significant and substantial'', and therefore qualify for the 

so-called "single penalty" assessment of $20 pursuant to 

section 100.4, and are not to be considered by the petitioner 

as part of the respondent's history of prior violations pursuant 

to section 100.3(c), is not controlling or even relevant, in 

these proceedings. Regardless of the Secretary's regulations, 

once Commission jurisdictio~ attaches, I am bound to follow 

1925 
and apply the clear mandate of section llO(i) in determining 

the civil penalty to be assessed for a proven violation after 

due consideration of all of the criteria enumerated therein. 

The fact that Congress chose to include language in section 

llO(i) which arguably authorizes the Secretary not to make 

findings on the penalty criteria clearly is inapplicable to 

the Commission. 

Section llO(i) of the Act requires Commission consideration 

of all six penalty criteria, and the fact that the Secretary 

chooses to ignore $20 citations as part of a mine operator's 

compliance record is not controlling when the case is before 

a Commission Judge. Accordingly, for civil penalty assessment 

purposes, I will take into consideration all previously paid 

citations by the respondent, including any "single penalty" 

$20 citations which have been paid. 

Findings and Conclusions 

Docket No. PENN 83-146 

The parties proposed a settlement for all of the citations 

in this case. The proposal called for the respondent to make 

full payment for all of the proposed assessments with the 

exceptions of Citation Nos. 2112921 and 2112924. The parties 

proposed a reduction in the penalty assessments for these 

citations (Tr. 108-109). Although the inspector who issued 

the citations was not present (he was on vacation), the parties 

furnished relevant and material information in support of their 

proposed settlement disposition for the citations, including 

the facts and circumstances surrounding each of the cited 

conditions (Tr. 118-133). After consideration of the arguments 

in support of the proposed settlements, I approved the following 

dispositions for nine of the citations: 

Citation No. Date 30 CFR Section Assessment Settlement 

2112828 2/24/83 77.400(a) $ 20 $ 20 

2112829 2/24/83 75.403 20 20 

2112836 3/22/83 75.303(a) 58 58 

2112838 3/23/83 75.512 20 20 

2112839 3/23/83 75.601 20 20 

2112840 3/23/83 75.516-2(a) 20 20 

2112921 3/23/83 75.1722(a) 54 40 

2112923 3/24/83 75.503 20 20 

2112924 3/24/83 75.1704 106 66 

$ 338 $ 284 

192G 
With regard to Citation No. 2112837, March 22, 1983, citing 

an alleged violation of section 75.202, I rejected the proposed 

settlement requiring the respondent to pay the full penalty 

of $20 for this "non-S&S" citation (Tr. 117, 133-134). 

I did so because the conditions or practices as stated by 

the inspector on the face of the citation indicated to me that 

miners were exposed to certain hazardous roof conditions while 

performing certain work at the face. By agreement of the parties, 

the petitioner's counsel was directed to contact the inspector 

to ascertain all of the prevailing circumstances surrounding 

this citation, including some explanation as to why he believed 

the conditions cited did not present a "significant and substantial" 

violation, and to file a further statement with me posthearing. 

Counsel was also directed to file a copy of the respondent's 

history of prior citations. 

By letters filed September 16 and October 7, 1983, petitioner's 

counsel submitted a computer print-out of respondent's prior 

history of violations and a full and complete explanation 

of the circumstances surrounding the issuance of Citation No. 

2112837. Included in this explanation is an assertion by 

the inspector that his finding that the violation was not 

significant and substantial was based on the fact that no 

miners were exposed to any hazard, and the inspector's 

supervisor fully concurred in his evaluation of the violation 

and the potential hazard. After careful consideration of this 

information, I conclude that the proposed settlement disposition 

for this citation is reasonable, and it is approved as follows: 

Citation No. Date 30 CFR Section Assessment Settlement 

2112837 3/22/83 75.202 $20 $20 

Docket No. PENN 83-25 

This case involves a section 104(a) citation issued by 

Inspector Walter E. Kowaleski on August 19, 1982, charging 

the respondent with a violation of section 75.200. Citation 

No. 2000842 is "non-S&S", and the conditions or practices 

cited by the inspector are as follows: 

The roof control plan was not fully complied 

with in that the posts installed along the low 

belt were spaced from 4 1/2 feet to 7 feet at 

several locations. The approved roof control 

plan specifies that posts will be set at 4 foot 

spacings. 

These violations will not be terminated until 

such time as a responsible official explains 

1927 
to all crew members on all shifts the 

part of the roof control [sic] pertaining 

to the allowable spacing of post. 

Inspector Kowaleski confirmed that he issued the citation 

in question, and he testified that on the day in question he 

rode into the working section with the mine superintendent. 

After alighting from the mantrip approximately 150 feet 

from the working face, he and the superintendent proceeded 

to crawl through the low coal to the face. As they were 

proceeding to the face he observed that the posts used to 

support the roof were wide, and after taking measurements 

he determined that they were spaced on centers ranging from 

4 1/2 to seven feet. Since the roof control plan required 

that they be spaced on four-foot centers, he decided to 

issued a citation and advised the superintendent accordingly 

(Tr. 14-18) . 

Mr. Kowaleski confirmed that at the time he observed 

the wide spacing the crew had advanced beyond that point, 

and after the superintendent conceded that the spacing was 

wide and led him to believe that it was due to oversights by 

the working crew, he (Kowaleski), advised the superintendent 

that "I' 11 not make it S&S" (Tr. 19). 

Mr. Kowaleski testified that based on his observations 

of the conditions which he cited he did not believe that 

those conditions presented a reasonable likelihood of an 

injury (Tr. 19). He explained further that after pointing 

out the wide spacing to superintendent James Bailor, face mining 

ceased and Mr. Bailor called in a crew to install the roof supports 

on four foot centers (Tr. 20). 

In response to further question, Mr. Kowaleski confirmed 

that the roof conditions where mining was. taking place 

consisted of "pretty good roof" (Tr. 23). He also confirmed 

that abatement was achieved immediately by the next crew installing 

the roof supports to the required interval (Tr. 25). 

In response to certain bench questions, Mr. Kowaleski 

conceded that the approved roof control plan was binding on 

the respondent, and that the plan required that the roof 

support posts in question be installed on four-foot centers 

(Tr. 26). He confirmed that the reason he concluded that 

the violation was "non-S&S" was the fact that men would not 

be working in the area "and no one will go there in the next 

five years" (Tr. 27). 

Mr. Kowaleski confirmed that approximately 11 posts were 

installed wider than the specifications called for by the roof 

1928 
control plan (Tr. 29). He also confirmed that aside from 

the wide spacing of the posts, the roof was in good condition, 

it was solid and otherwise supported, and the crew was not 

in the area on a regular basis. Given these circumstances, 

and the fact that the conditions were not present at the 

working face, he concluded that the violation was not 

"significant and substantial'' (Tr. 30). 

In response to a question as to why he did not make a 

negligence finding in this case at the time he issued the 

citation Mr. Kowaleski stated that based on instructions 

from his subdistrict office, once he found that the violation 

was not "S&S", he was not to make any gravity findings (Tr. 31). 

He conceded that the mine area which he cited was an area 

which was required to be preshifted, and respondent's counsel 

conceded that there is negligence in this case (Tr. 32). 

Mr. Kowaleski conceded that the respondent has a good compliance 

record and that it has a basic safe roof control plan which 

it has always adhered to (Tr. 33). 

At the hearing I observed that the petitioner has established 

the fact of violation. I also observed that the testimony by 

the inspector in support of the citation supported a finding 

of negligence and the respondent conceded this point (Tr. 37-38). 

With regard to the question of gravity, I made a finding 

that while the roof was otherwise supported and sound, the roof 

support spacings at the area observed by the inspector were wider 

than allowed by the roof control plan. Since the inspector and 

the superintendent were in the area, I can only conclude that 

they were exposed to a possible hazard from a roof fall due 

to the wide roof support spacing (Tr. 38-39). 

Respondent declined to call any witnesses in support 

of its case. Under the circumstances, and based on the 

inspector's testimony there is no doubt as to the fact of 

violation. Accordingly, I find that the conditions cited 

constitute a violation of the cited mandatory standard and 

the fact of violation IS AFFIRMED. 

With regard to the inspector's "non-S&S" finding, as 

far as I am concerned this presents a question of gravity. 

Based on the inspector's testimony that he and the mine 

superintendent had to crawl through an area which contained 

inadequate roof support spacings which did not comply with 

the approved roof control plan, I can only conclude that the 

violation was serious. With regard to negligence, the respondent 

has conceded that the conditions should have been observed 

by the preshift examiner, and that mine management's failure 

to detect and correct the cited conditions before the inspector 

arrived on the scene constitut2d negligence on its part (Tr. 40). 

1929 
Petitioner's proposed civil penalty of $20 IS REJECTED. 

Based on my.gravity and negligence findings, as well as the 

prior history of six violations of the roof control standards 

found in section 75.200, I simply cannot conclude that a 

$20 civil penalty is reasonable. Based on my independent 

de novo consideration of this violation, including the six 

statutory criteria found in section llO(i) of the Act, I 

conclude that a civil penalty assessment of $150 is appropriate 

and reasonable for the citation in question. 

ORDER 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of Section llO(i) 

of the Act, I conclude and find that the civil penalty assessments 

which have been agreed upon by settlement, as well as those 

imposed by me on the basis of the preponderance of the evidence 

adduced in these proceedings are appropriate and reasonable 

for the citations which have been affirmed. Accordingly, the 

respondent IS ORDERED to pay the civil penalties approved by 

settlement or otherwise imposed by me within thirty (30) days 

of these decisions and order, and upon receipt of payment by 

the petitioner, these proceedings are dismissed. 

Distribution: 

(!/ ~ bf,,!;;:'~ ~~A. Koutras 

Administrative Law Judge 

David T. Bush, Esq., U.S. Department of Labor, Office of 

the Solicitor, 3535 Market St., Philadelphia, PA 19104 

(Certified Mail) 

Robert M. Hanak, Esq., 311 Main Street, Reynoldsville, PA 

15851 (Certified Mail) 

/slk 

1930 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE NOV 4 1983 

FALLS CHURCH, VIRGINIA 22041 

UNITED MINE WORKERS OF 

AMERICA (UMWA) , 

ON BEHALF OF 

JAMES ROWE, et al., 

DELMAR SHEPARD, 

JERRY D. MOORE, 

LARRY D. KESSINGER, 

JAMES RUSSELL, 

HOWARD COGNION, 

Complainants 

v. 

PEABODY COAL COMPANY, 

Respondent 

and 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF 

THOMAS L. WILLIAMS, 

Complainant 

v. 

PEABODY COAL COMPANY, 

Respondent 

DISCRIMINATION PROCEEDINGS 

Docket No. KENT 82-103-D 

MADI CD 81-23 

Docket No. KENT 82-104-D 

MADI CD 82-01 

Docket No. KENT 82-105-D 

MADI CD 82-05 

Docket No. KENT 82-106-D 

MADI CD 82-04 

Docket No. LAKE 82-83-D 

VINC CD 81-23 

Docket No. LAKE 82-84-D 

VINC CD 81-26 

Eastern Division Operations 

Docket No. LAKE 83-69-D 

VINC CD 83-04 

Eastern Division Operations 

DECISION APPROVING SETTLEMENT 

Before: Judge Kennedy 

The captioned individual and class action discrimination 

complaints charge the operator with violating section 105(c) (2) 

1931 
and (3) of the Mine Safety Law by establishing a policy that 

required miners in a layoff status to pay for their training 

or retraining as a condition of maintaining their position 

of seniority on the layoff panels. Under pressure from MSHA, 

this policy, which was promulgated in June 1981, was rescinded 

in April 1983. The parties then attempted to negotiate a 

settlement. When this failed, the matter came on for a 

prehearing/settlement conference on August 4, 1983. As a 

result of that conference, the parties (1) divided the claimants 

into three categories: Rehires (Category I), Bypassed (Category 

II) , and Not Rehired (Category III) ; (2) agreed to file a stipulation to settle the claims under Category I; and (3) to negotiate 

further with respect to settling the other two categories. 

At a status hearing on October 13, 1983, the last details 

of the stipulation for settlement of Category I were worked out. 

When no settlement for Categories II and III could be achieved 

the parties agreed to waive an evidentiary hearing and to submit 

the issue of liability only for determination on the basis of a 

joint stipulation of material facts not in dispute together with 

cross motions for summary decision. 

A related proceeding, recently reassigned from Judge 

Fauver, involves a discrimination complaint brought, somewhat 

belatedly, by the Secretary on behalf of a Category II miner. 

Secretary of Labor on Behalf of Thomas L. Williams v. Peabody 

Coal Company, LAKE 83-69-D. I understand the Solicitor will 

endeavor to join the stipulation of facts filed by the UMWA 

and Peabody in the retained proceedings so that the Williams 

case can be decided at the same time the retained cases are 

determined. 

These matters are now before me on the parties Joint 

Motion to Approve Settlement and to Dismiss with prejudice 

three of the captioned matters which invoive only Category I 

and the John Does falling in Category I in the class action 

Docket No. KENT 82-103-D. 

While these matters were pending, the Commission decided 

Secretary and UMWA v. Emery Mining Company, 5 FMSHRC 1391 

(1983), appeal pending in the Tenth Circuit. There the 

Commission held that under section 115 of the Mine Safety 

Law an operator can require applicants to take new miner 

training as a precondition of their employment but, if that 

training is used to satisfy the requirement for training new 

hires, the operator must reimburse new miners for the costs 

previously incurred. Emeryis refusal to reimburse the new 

miners was held an unlawful interference with rights 

guaranteed new hires (but not applicants) under the antidiscrimination provisions of section 105(c) (1) of the Act. 

1932 
Earlier, Judge Broderick held that Peabody could 

require that as a condition of rehire a laid-off surface 

miner must pay for the training needed to obtain a certificate of training as an experienced underground miner. 

UMWA v. Peabody, 4 FMSHRC 1338 (1982). 

As indicated, the stipulation for settlement presently 

before me involves only miners who were laid off and then 

recalled without compensation for the training they paid for 

in order to comply with the condition for recall established 

by Peabody in June 1981. I find the -reasons advanced on the 

record at the prehearing conferences of August 4 and October 13, 

1983, together with the information provided in the motion and 

supporting affidavits of the stipulation for settlement show 

the settlement proposed is in accord with the purposes and 

policy of the Act. 

Accordingly, it is ORDERED that the operator pay forthwith the amount of the settlement agreed upon, $23,076.05, 

to the 134 miners in Exhibits A and B attached hereto and 

made a part hereof, and that subject to payment Docket Nos. 

KENT 82-104-D, LAKE 82-83-D, LAKE 82-84-D, and KENT 82-103-D 

insofar as it pertains to recalled (Category I) miners be, 

and hereby are, DISMISSED WITH PREJUDICE. It is FURTHER 

ORDERED that jurisdiction is retained over Docket No. KENT 

82-103-D to the extent that it involves miners falling in 

the bypassed category (Category II) , and the not rehired or 

recalled category (Category III}, as well as over Docket Nos. 

KENT 82-105-D and KENT 82-106-D w 'ch involve miners in the 

bypassed category (Category II). 

Distribution: 

Joseph B. Kennedy 

Administrative Law 

Michael O. McKown, Esq., P.O. Box 235, St. Louis, MO 63166 

(Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 

15th St., NW, Washington, DC 20005 (Certified Mail) 

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

Department of Labor, 4015 Wilson Blvd., Arlington, VA 

22203 (Certified Mail) 

!e~? 

1933 
EXHIBIT A 

Name Docket No. Mine Rate Hours Total 

Delmar Shepherd KENl' 83-104-D Ken $11.876 8 $95.00 

Ear 1 Greenwocd IAKE 82-83-D Sunnyhill $10 .698 32 $342.34 

James Henry IAKE 82-83-D Sunnyhill $10.698 32 $342.34 

Everett Tennant IAKE 82-83-D Sunnyhill $10 .698 32 $342.34 

Gregory Dobson IAKE 82-83-D Simoo $10.698 32 $342.3-4 

Wayne Hart IAKE 82-83-D Sunnyhill $10 .698 32 $342.34 

James Waner IAKE 82-83-D Simoo $10.698 32 $342.34 

Richard Beamer IAKE 82-83-D Sunnyhill $10 .698 32 $342.34 

Frank Cronin IAKE 82-83-D Sunnyhill $10 .993 32 $351. 78 

Mark Wharton IAKE 82-83-D Sunnyhill $10.698 32 $342.34 

Hooard Cognion IAKE 82-84-D Sunnyhill $10.698 32 $ 342.34 

Total $3518.40 

1934 
EXHIDIT B 

Name Mine Rate Hours Total 

James J. William:; Sunnyhill $10.698 . 32 $342.34 

Jerry T. Wilson Sunnyhill $10.698 32 $342.34 

Roger L. Ginnery Sunnyhill $10 .698 32 $342.34 

Michael w. DeMoss Sunnyhill $10 .698 32 $342.34 

John R. Taylor Sunnyhill $10.698 32 $342.34 

Loy E. Wiggins Sunnyhill $10.698 32 $342.34 

Charles T. Whiteman Sunnyhill $11. 765 32 $376.48 

Ronald E. Groves Sunnyhill $11. 713 32 $374.82 

Thomas L. William:; Sunnyhill $11. 765 32 $376.48 

Havard Harris Sunnyhill $10:698 32 $342.34 

Fred Robinson Sunnyhill $10.698 32 $342.34 

D. D. Armstrong, Sr. Sunnyhill $10.698 32 $342.34 

Kenneth w. Krebs Sunnyhill $10.698 32 $342.34 

Ralph O. Erwin Sunnyhill $11. 765 32 $376.48 

Thomas D. Hewlett Sunnyhill $10.698 32 $342.34 

Vernon L. Noland Sunnyhill $12.364 32 $395.65 

Ralph E. Jasper Sunnyhill $12.364 32 $395.65 

Chester Green Simco $12.612 32 $403.58 

Larry Holsky Camp #11 $12.612 32 $403.58 

S. William Reed Sunnyhill $12.364 32 $395.65 

Victor Strain Sunnyhill $10.698 32 $342.34 

Paul Wright Sunnyhill $10 .698 32 $342.34 

Virgil Smith Camp #11 $10.698 32 $342.34 

Tommy Wilson Camp #1 $11.360 8 $90.88 

Hershel Knight Ken Surface $11.226 16 $179 .62 

Jackie Tichenor Ken Surface $11.226 16 $179.62 

Burnie C. Cain, Jr. Ken Surf ace $11.876 16 $190 .02 

Ronnie Allen Ken Surface $11.512 16 $184.19 

Jerry Wilcox Ken Surface $11.512 16 $184 .19 

Orval Wiles Camp #11 $10.698 8 $85.58 

Jerry D. Farris Ken Surface $11.876 16 $190.02 

Dan W. Raymer Ken Surface $11.876 16 $190.02 

Danny J. Roberts Camp #2 $10.998 8 $87.94 

Carl E. Smith Camp #11 $11. 765 8 $94.12 

Cola Duncan Camp #11 $10 .698 8 $85.58 

Allen D. Richardson Camp #2 $10.993 8 $87.94 

William D. Beadnell Camp #1 $11. 765 8 $94.12 

Edward L. Harris Camp #11 $10.698 8 $85.58 

Carroll R. Jones Ken Surface $11.876 16 $190 .02 

Raymond E. Higbee Camp #2 $10.993 8 $87.94 

Donnie E. Havell Camp #11 $10.698 8 $85.58 

Arthur G. Mellott Camp #2 $10 .993 8 $87.94 

Garry E. Conrad Camp #2 $10.993 8 $87.94 

Jimnie W. O'Neal Camp #2 $10.993 8 $87.94 

Jeffery L. Wilkins Camp #1 $11. 765 8 $94.12 

William D. Hayes Camp #1 $10.993 8 $87.94 

Truman E. Mannahan Camp #1 $11.765 8 $94.12 

F. A. Gregory, Jr. Camp #1 $11. 765 8 $94.12 

Steven w. Noffsinger Camp #2 $11. 765 8 $94.12 

Lawrence E. Lee Camp #2 $11.765 8 $94.12 

1935 
Harold Pointer River Queen $11.512 16 $184.19 

Chapnan Merrill camp #9 Prep. $11.469 16 $183.50 

Donnie Jackson camp #9 Prep. $11.469 16 $183.50 

Jose Martinez, Jr. camp #9 Prep. $11. 713 16 $187 .41 

Charles canplin River Queen $11.512 16 $184.19 

William D. Green Hanestead $11.512 8 $92.10 

Vernon G. Warren camp #9 Prep. $ll.469 16 $183.50 

Kerry D. Sweeney camp #9 Prep. $11. 713 16 $187 .41 

Dallas R. Miller camp #9 Prep. $11.469 16 $183.50 

Carl Addington Alston Surface $11.876 8 $95.01 

Bobby Shenwell Ken Surface $11.876 8 $95.01 

Dannie Harr is Ken Surface' $11.512 8 $92.10 

Thomas M. Foster camp #1 $11-. 765 32 $376.48 

Vernoo W. Hines Alston $11.145 8 $89.16 

Stephen M. Raymer Alston $11.512 8 $92.10 

Jerald Harper Alston $11.512 8 $92.10 

Betty A. Martin Sinclair #2 $10.698 8 $85.58 

Donald R. Sadler Sinclair #2 $10.993 8 $87.94 

David w. Wester Sinclair #2 $10.698 8 $85.58 

John Iler Ken Surface $11.512 8 $92.10 

Stephen Goode Ken Surface $11.512 8 $92.10 

David D. Shocklee Ken Surface $11.876 8 $95.01 

Anna J. Johnson Ken Surface $11.145 8 $89.16 

Randy G. Scott Ken Surface $11.876 8 $95.01 

Dwayne A. Hill Ken Surface $11.512 8 $92.10 

DeJmar J. Parrent River Queen $11.145 8 $89.16 

Steven w. Geary Hcrnestead $11.145 8 $89 .16 

Robert J. Richard Ken Surface $11.512 8 $92.10 

Wesley L. Lake Ken Surface $11.876 8 $95.01 

Carlos R. Goff Hane stead $11.876 8 $95.01 

Michael E. Davis Hcrnestead $11.512 8 $92.10 

Darrell L. Rice River Queen $11.512 8 $92.10 

Ellis J. Thanpson Heme stead $11.512 8 $92.10 

Mark Killingsworth camp #9 Prep. $11.876 8 $95.01 

Danon E. Robinson Gibraltar $11.876 8 $95.01 

Charles J. Moegling Gibraltar $12.527 8 $100.22 

Bobby D. Gentry Alston $ll.876 8 $95.01 

Jerrold L. James River Queen $11.512 8 $92.10 

James M. Brown Gibraltar $12.612 8 $100.90 

Liston Wright Ken Surface $11.415 16 $182.64 

Melvin Johnson Walton Creek $10.698 8 $85.58 

Donnie J. Jackson Ken #4 $10.993 8 $87.94 

Jinuny R. Asher Ken Surface $11.445 16 $180.64 

Charles D. Carnplin Ken #4 $10.698 8 $85.58 

Charlie Crabtree Ken #4 $10.698 8 $85.58 

William D. Greene Ken #4 $10.698 8 $85.58 

John Isbell Ken Surface $11.512 16 $184.19 

Kerry R. Sweeny Ken #4 $10.698 8 $85.58 

Tarmy w. West Ken Surface $11.512 16 $184.19 

Elmer R. Atherton Ken Surface $11.512 16 $184.19 

Ralph F. Shephard Ken Surface $11.512 16 $184 .19 

Ellis Randoloh Cam? #1 $11. 7o5 8 $94.12 ~.t7i:__.:_~=-.:: E ~ :~,---~3 ~~:·2n s:_:::: .. ::2 $ :: . 37 ~.; .... ., ,...." -. ...;...,,.,, ~} ..:..:,: u - ~-· ~ 

Roger D. Sims Ken Surface $11.876 16 $190.02 

1938 
George K. Whitten Camp #11 $10.993 8 $87.94 

Cary Graham Camp #1 $11. 765 8 $94.12 

Vernon Keeling Camp #11 $10.698 8 $85.58 

Marvin Crick Camp #9 Prep. $11. 713 16 $187 .40 

J arnes Ellis Camp #1 $10.698 8 $85.58 

James Milligan Camp #11 $11. 765 8 $94.12 

Jerry Moore Camp #11 $11. 765 8 $94.12 

Rickie Williams Camp #9 $11. 713 16 $187 .41 

Clifton Stewart. Ken Surface $11.876 16 $190 .02 

Kenneth Sullivan Camp #9 Prep. $1L713 16 $187 .40 

John D. Zachery Camp #2 $10.993 8 $87.94 

Ronnie L. Gossett Camp #11 $11. 765 8 $94.12 

Otis Halcomb Camp #9 $11. 713 16 $93.70 

John Chinn Camp #1 $11. 765 8 $94.12 

Roger Travis Camp #2 $10.993 8 $87.94 

Lonnie Neumann Camp #11 $11. 765 8 $94.12 

Kenneth Cardwell Camp #11 $11. 765 8 $94.12 

Roy L. Miller Camp #2 $10.993 8 $87.94 

Dickie w. Rock Ken #4 $10.698 8 $ 85.58 

Total $19 ,557 .65 

1937 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 NOV 4 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

C C & P COAL COMPANY, 

Respondent 

Docket No. VA 83-40 

A.C. No. 44-03868-03510 

No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On November 2, 1983, the Secretary filed a Motion to Withdraw 

its Civil Penalty Petition based on Respondent's agreement to pay 

the full amount assessed by MSHA. Accompanying the motion were 

prior assessment records, a copy of the Investigation Report of 

October 20, 1982, and information as to the size of Respondent's 

operation. On October 13, 1983, the parties filed a stipulation 

of fact pursuant to my prehearing order of August 22, 1983 and 

October 12, 1983. 

I am treating the motion as a motion to approve a settlement, 

since sufficient information has been submitted for me to apply 

the statutory criteria to the proposed disposition of this matter. 

When a penalty case comes before the Commission, it must be considered de novo under section llO(k) of the Act, in the light of the 

criteria-rn.-section llO(i). A proposed payment of the amount 

previously assessed by MSHA is a proposal for approval of a settlement and may not be disposed of by ruling on a "motion to withdraw." 

This proceeding was instituted following a fatal accident on 

October 21, 1982, when the rippers on a continuous mining machine 

being repaired started up suddenly and caught a miner working on 

the ripper chain adjustment and killed him. Three violations were 

charged: (1) a violation of 30 C.F.R. § 75.1725(c), because repairs 

were being made on the ripperhead chain of the miner while the 

ma~hine was energized; (2) a violation of 30 C.F.R. § 75.509, because 

electrical work was being performed on the control circuit of the 

miner without the circuit being deenergized; (3) a violation of 

30 C.F.R. § 75.511, because electrical work was being performed on 

the control circuit without opening and locking out the disconnecting device. The violations were assessed at $5,000, $5,000, and 

$2,000 respectively. 

1938 
Respondent is a small operator. The subject mine, which is 

its only mine, produces less than 100,000 tons annually. The mine 

will be worked out in approximately 5 months. During calendar 

year 1980, 12 violations were assessed at the mine; during 1981, 

16 violations were assessed. From January through October, 1982, 

19 violations were assessed (presumably including the 3 involved 

herein) . This appears to be a moderate history of previous 

violations. 

The violations were extremely serious, since each of them 

contributed to the fatal accident. Respondent was highly negligent: 

The repairs were being performed under the direction of the section 

foreman, a certified electrician. There was a history of electrical 

conductors being grounded on the continuous miner in question and 

the conveyor or ripperhead motors would inadvertently start. This 

history should have made for greater than ordinary caution in working on the machine. The violations were abated in a reasonable 

time. 

Having considered the motion in the light of the criteria in 

section llO(i) of the Act, I conclude that the settlement should 

be approved. 

Accordingly, the settlement is APPROVED and Respondent is 

ORDERED TO PAY the sum of $12,000 within 30 days of the date of 

this order, and upon such payment, this proceeding is DISMISSED. 

Distribution: 

4cuvt~ A. f3 mri.~ ~/Ji ~ James A. Broderick 

Administrative Law Judge 

Jonathan M. Kronheim, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., Room 1237A, Arlington, VA 22203 

(Certified Mail) 

Douglas G. Campbell, Esq., Campbell, Newlon, White, Heileman, P.C., 

P.O. Box 549, Tazewell, VA 24651 (Certified Mail) 

1933 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 NOV 4 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

WESTMORELAND COAL COMPANY, 

Respondent 

ERRATA 

Docket No. WEVA 83-170 

A.C. No. 46-03140-03507 

Hampton No. 3 Prep. Plant 

Before: Judge Kennedy 

The first sentence on page 3 of the decision in this 

matter issued October 28, 1983 should be deleted and the 

following substituted therefor: 

The operator, of course, has the burden of persuasion 

with respect to rebutting a prima facie showing that 

a violation is S&S. Miller Mining Co. v. FMSHRC, 

3 MSHC 1017 (9th Cir. 1983); Old Ben Coal Corp. v. 

IBMOA, 523 F.2d 25, 39 (7th c'r. 1975). 

Joseph B. Kennedy 

Administrative Law 

Distribution: 

Janine C. Gismondi, Esq., Office of the Solicitor, U.S. 

Department of Labor, 3535 Market St., Philadelphia, PA 

19104 (Certified Mail) 

F. Thomas Rubenstein, Esq., P.O. Drawer A & B, Big Stone 

Gap, VA 24219 (Certified Mail) 

/ejp 

1940 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE Nov r-, 

' 1983 FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WESTMORELAND COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 83-202 

A.C. No. 46-01283-03513 

Docket No. WEVA 83-203 

A.C. No. 46-01283-03514 

Docket No. WEVA 83-204 

A.C. No .. 46-01283-03515 

Docket No. WEVA 83-205 

A.C. No. 46-01283-03517 

Hampton No. 3 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Kennedy 

Based on an independent evaluation and de novo review 

of the circumstances set forth in the solicitor's well 

crafted motion, I concluded that two of the violations of 

75.400 (Citations Nos. 2141405 and 2141406) were under 

assessed. Thereafter, in a teleconference the operator and 

the solicitor presented their respective positions. I found 

their arguments unpersuasive and adhered to my original 

view. This was that it was reasonably forseeable that these 

violations considered either singlely or in concert could 

significantly and substantially contribute to a mine hazard, 

namely a mine fire or explosion. l/ 

1/ I recognize that under the Commission's Gypsum decision, 

3 FMSHRC 822 (1981), it is arguable that to be S&S it must 

be found that the "hazard contributed to will result in an 

injury or illness of a reasonably serious nature." Id. at 

825. If that is correct, I must respectfully disagree. I 

cannot agree that a requirement that a violation "could . 

contribute to a cause and effect of a mine hazard" is the 

functional equivalent of a requirement that "the hazard 

contributed to will result in an injury or illness of a 

reasonably serious nature." In my view, the Commission 

definition changes the focus of Congressional concern from 

1941 
Applying this criteria, I found the two violations in 

question had a high potential for triggering a hazard of 

grevious proportions. Finally, I advised the parties that 

in order to deter such violations and encourage voluntary 

compliance I could not approve their settlement unless the 

penalties were in the case of Citation 2141405 increased to 

fn 1 (continued) 

the capacity or ability of the contributory violation (the 

underlying violation) to act as a catalyst or synergist for 

the creation of a recognizable mine safety or health hazard 

to the gravity of the consequences if the hazard perceived 

and contributed to were to actually occur. This is not a 

distinction without a difference unless the difference 

between life and death is a distinction without a difference. 

I simply cannot agree that if the consequences or fall out of 

the hazard contributed to are not "reasonably serious" there 

is no need to be concerned about deterring the contributory 

or underlying violations. From an enforcement standpoint, 

the difficulty with this post hoc reasoning is that it 

requires the parties, as well as the trial judge, to enter 

an arena of speculation where the operator's guess is as good 

as the inspector's. 

Under the statutory definition this speculation is 

avoided as it is only necessary to show that the contributory 

violation could be a meaningful and important factor in the 

creation of a recognizable hazard, not what the consequences 

of that hazard might be. For example, the presence of float 

coal dust on rock dusted surf aces or around electrical 

connections in an area where the power station is not adequately 

ventilated into the return air course leads me to conclude we 

have an accident, if not a disaster, waiting to happen. Each 

of these violations whether singly or in combination could be a 

meaningful, i.e., significant and important, i.e., substantial 

factor in the-creation of a recognizable ignition, fire or 

explosion hazard whether or not I find that the "hazard 

contributed to will result in an injury or illness of a reasonably serious nature." 

I am persuaded that the pattern of readily recognizable 

violations that contributed to the disaster at the Scotia 

Mine is the lodestar that should guide our understanding of 

the Congressional purpose that underlies and illuminates the 

meaning of the S&S finding. I think that until the enforcement authorities recognize that purpose and firmly reject 

the view that violations with such a vast potential for 

magnifying the inherent and unavoidable hazards of the mine 

environment are not to be treated lightly miners will continue 

to suffer~deaths and disabling injuries at rates that should 

be unacceptable to a civilized society. 

1942 
$300 and in the case of Citation 2141406 to $200. The 

parties agreed to this and thereupon orally amended their 

motion to increase the amount of the penalties proposed 

for each of these citations. 

Accordingly, it is ORDERED that the motion, as amended, 

be, and hereby is, GRANTED. It is FURTHER ORDERED that the 

operator pay the amount of the penalty agreed upon, $4,091, 

on or before Friday, November 18, 1983, and that subject to 

payment the captioned matters be~ISMISSED. I ' 

I I 

Distribution: 

William H. Connor, Esq. Office of the Solicitor, U.S. Department of Labor, 3535 Market St., Philadelphia, PA 19104 

(Certified Mail) 

F. Thomas Rubenstein, Esq., Westmoreland Coal Company, P.O. 

Drawers A & B, Big Stone Gap, VA 24219 (Certified Mail) 

/ejp 

1943 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR NOV 9 1983 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

BARTLEY & BARTLEY COAL COMPANY,: 

Respondent 

DEFAULT DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 82-66 

A. C. No. 15-12650-03009 

No. 4 Mine 

Appearances: Darryl A. Stewart, Esq., Office of the Solicitor, 

U. S. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

No one appeared at the hearing on behalf of 

Respondent. 

Before: Judge Steffey 

When the hearing in the above-entitled proceeding was convened in Pikeville, Kentucky, on October 6, 1983, pursuant to 

a written notice of hearing dated September 8, 1983, and received by respondent on September 12, 1983, counsel for the 

Secretary of Labor entered his appearance, but no one appeared 

at the hearing to represent respondent. 

Under the provisions of 29 C.F.R. § 2700.63(a), when a 

party fails to comply with an order of a judge, an order to 

show cause shall be directed to the party before the entry of 

any order of default. An order to show cause was sent to respondent on October 12, 1983, pursuant to section 2700.63(a), 

requiring respondent to show cause why it should not be found 

to be in default for failure to appear at the hearing convened 

on October 6, 1983. A return receipt in the official file shows 

that respondent received the show-cause order on October 14, 

1983. The time within which a reply to the show-cause order 

should have been received has passed and no reply has been 

submitted. 

Inasmuch as no reply to the show-cause order was submitted, 

I find respondent to be in default for failure to appear at the 

hearing convened on October 6, 1983. Section 2700.63(b) of the 

Commission's rules provides that "[w]hen the Judge finds the 

respondent in default in a civil penalty proceeding, the Judge 

shall alse enter a summary order assessing the proposed penalties as final, and directing that such penalties be paid." 

WHEREFORE, it is ordered: 
Bartley and Bartley Coal Company, having been found to be 

in default, is ordered, within 30 days from the date of this decision, to pay a civil penalty of $22.00 for the violation of 30 

C.F.R. § 77.516 alleged in Citation No. 953536 dated July 29, 

1981. 

Distribution: 

~ e. ol:iAJff~ Richard c. Steffey 

Administrative Law Judge 

Darryl A. Stewart, Esq., Office of the Solicitor, U. S. Department 

of Labor, Room 280, u. S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Bartley and Bartley Coal Company, Attention: Gobel and Robert 

Bartley, Co-Owners, Box 142, Rockhouse, KY 41561 (Certified Mail) 

yh 1945 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 9 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEERLESS EAGLE COAL COMPANY, 

Respondent 

Docket No. WEVA 83-74 

A.C. No. 46-03851-03504 

No. 3 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Kennedy 

For the reasons set forth in the parties' joint motion 

to approve settlement of the two violations alleged in the 

captioned matter, it is ORDERED that the same be, and hereby 

is, GRANTED. It is FURTHER ORDERED that the operator pay 

the amount of the penalties agreed upon, $800.00, on or 

before Friday, November 25, 1~83, a that subject to payment 

the captioned matter be DISMISSED. 

Distribution: 

Joseph B. Kennedy 

Administrative Law Judge 

Joseph T. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market St., Philadelphia, PA 19104 

(Certified Mail) 

Barbara L. Krause, Esq., Smith, Heenan, Althen & Zanolli, 

1110 Vermont Avenue, NW, Washington, DC 20005 (Certified Mail) 

/ejp 

1946 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CYPRUS INDUSTRIAL MINERALS 

CORPORATION, 

Respondent 

DECISION 

Docket No. WEST 82-35-M 

A.C. No. 24-00163-05015 F 

Yellowstone Mine 

Appearances: Phyllis Caldwell, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, for 

Petitioner; 

Before: 

Harley W. Shaver, Esq., Canges, Shaver, Volpe & 

Licht, Denver, Colorado, for Respondent. 

Judge Melick 

This case is before me upon the Petition for Assessment of 

Civil Penalty filed by the Secretary of Labor pursuant to section 

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

§ 801, et seq., the "Act," for two violations of regulatory standards. The general issue before me is whether the Cyprus Industrial Minerals Corporation (Cyprus) has violated the cited regulatory standards and, if so, whether those violations were "signif icant and substantial" as defined in the Act and as interpreted by 

the Commission in Secretary v. Cement Division, National Gypsum 

Company, 3 FMSHRC 822 (1981). If it is determined that violations have occurred, it will also be necessary to determine the 

appropriate penalty to be assessed. 

On June 8, 1981, a truck driver was killed at the Cyprus 

Yellowstone Mine when his 35-ton haul truck went over the edge of 

an ore stockpile. MSHA inspector Darrel Woodbeck subsequently 

issued two citations under section 104(a) of the Act for regulatory violations in connection with the incident. One of the citations (No. 342876) charges a violation of the standard at 30 C.F.R. 

section 55.9-54 and reads as follows: 

1947 
On June 8, 1981, at approximately 1330, a 

haul truck driver was fatally injured when the 

35-ton haul truck he was driving went over the 

edge of a 30-foot high ore stock pile. The stockpile was located at the pit sorter area. The berm 

that was provided was not of sufficient height and 

it was not located far enough back from the dump 

edge to prevent overtravel onto unstable ~round. 

Statements made by employees that were working in 

the area indicated that the berm was approximately 

two feet high. The axle height of the truck was 

three feet. 

The cited standard requires that "berms, bumper blocks, safety hooks, or similar means shall be provided to prevent overtravel and overturning at dumping locations." 

Cyprus readily concedes that there was no berm or other required restraint in place where the haul truck went over the edge 

of the stockpile but argues that it was not in violation of the 

standard because the haul truck was itself in the process of 

"dumping a berm". Cyprus claims that it had instructed its truckdrivers, including the victim in this case, to dump 15 to 20 feet 

back from the edge of the stockpile and that the front-end loader 

or bulldozer would then push the material to the edge to form a 

berm. The evidence shows, however, that contrary to the purported instructions, ore had in fact been previously dumped right 

at the edge of the stockpile. Inspector Woodbeck found this to 

be the case and the photographic evidence supports this finding. 

Moreover, according to the undisputed eyewitness testimony of the 

front-end loader operator, Shirley Lane, the rear wheels of the 

victim's haul truck would have been only 5 to 6 feet from the 

edge of the stockpile when the ground gave way, thus confirming 

that the loads were in fact not being dumped 15 to 20 feet back 

from the edge. 

In light of the operator's contentions that the stockpile 

was inspected each day by management personnel and that only one 

trip had been made by a haul truck to the stockpile before the 

accident that day and the evidence that the haul trucks had for 

some period of time been dumping right at the edge of the stockpile, it may reasonably be inferred that agents of the operator 

were aware of the practice of dumping close to the edge without a 

berm and had not stopped the practice. I accordingly find that 

there was a violation of the cited standard and that the operator 

was negligent in permitting continuing violations of the standard 

for some period of time. 

1948 
The violation was also of high gravity .. There is no dispute 

that at the same time the haul trucks were dumping on the 30 foot 

stockpile, a front end loader was in effect undermining the stockpile directly below the dumping location as it removed the ore. 

Under these circumstances, I find that there indeed existed a reasonable likelihood that a truck would back too close to the unstable edge of the stockpile and fall through, thereby resulting 

in death or injuries of a serious nature. The fact that such an 

incident did occur· and did cause the death of a truck driver confirms that the violation herein was "significant and substantial" 

and of high gravity. Secretary v. Cement Division, National Gypsum Company, supra. 

The second citation arising out of this incident (Citation 

No. 342877) alleges a violation of the standard at 30 CFR section 

55.9-55, alleging that the ground failed at the edge of the stockpile under the weight of the haul truck. The cited standard requires that "where there is evidence that the ground at a dumping 

place may fail to support the weight of a vehicle, loads shall be 

dumped back from the edge of the bank." 

As previously noted, the operator contends that its truck 

drivers had been instructed to dump their loads 15 to 20 feet 

from the edge of the stockpile. As also previously noted however, the trucks had been, for some time prior to this accident, 

dumping right at the edge of the stockpile and the rear wheels of 

the victim's haul truck were in fact only 5 to 6 feet from the 

edge of the stockpile when it gave way. Thus it is apparent that 

if such instructions had been given, those instructions were customarily ignored without any corrective action by the operator. 

Since I have already found that it was the regular practice 

for the front end loader to remove ore and thus undermine the 

stockpile directly beneath the dumping location, it is clear that 

the operator also knew or should have known that the ground above 

it, near the edge of the stockpile, could very well fail to support the weight of the 35-ton haul trucks dumping at the edge 

above. I therefore find that the violation has been proven as 

charged and that the operator was negligent. Under the circumstances, there also existed a reasonable likelihood of ground 

failure near the edge of the stockpile and that a haul truck 

could very well pass through the failed portion of the 30 foot 

stockpile resulting in death or injuries of a serious nature. 

Th~ violation was therefore "significant and substantial"'and of 

high gravity. Secretary v. Cement Division, National Gypsum 

Company, supra. 

In determining the appropriate penalty to be assessed in 

this case, I have also taken into consideration that the operator 

1949 
is of medium size and that the violative practices were immediately discontinued. There is insufficient evidence of any prior 

violations and no evidence that the penalties here imposed would 

impair the operator's ability to continue in business. Under all 

the circumstances, I find that penalties of $1,200 for each 

violation are appropriate. 

ORDER 

The Cyprus Industrial Minerals Corporation is hereby ordered 

to pay the following civil penalties within 30 days of the date 

of this decision: 

Citation No. 342876 

Citation No. 342877 

Gary, Meli' k 

Ass stan~ ~\ief 

Distribution: 

\ 

$1,200. 

$1,20 .• 

'L~J 

~ Law Judge 

. ~ 

Phyllis Caldwell, Esq., Office of the Solicit r, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified mail) 

Harley W. Shaver, Esq., Canges, Shaver, Volpe & Licht, 600 Capitol Life Center, Denver, CO 80203 (Certified mail) 

nw 

1950 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

KAISER STEEL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KAISER STEEL CORPORATION, 

Respondent 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

CONTEST PROCEEDING 

Docket No. CENT 81-264-R 

Citation/Order No. 326835; 8/4/81 

York Canyon No. 1 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 82-50 

A.C. No. 29-00095-03059 V 

York Canyon No. 1 Mine 

DECISION 

Appearances: David B. Reeves, Esq., Industrial Relations, 

Kaiser Steel Corporation, Fontana, California, 

for Contestant/Respondent; 

Before: 

Leo J. McGinn, Esq., Office of the Solicitor, 

United States Department of Labor, Arlington, 

Virginia, 

for Respondent/Petitioner. 

Judge Vail 

STATEMENT OF THE CASE 

Pursuant to provisions of section 105(d) of the Federal 

Mine Safety and Health Act of 1977 (hereinafter the "Act"), Kaiser 

Steel Corporation (hereinafter "Kaiser"), filed a Notice of Contest 

alleging that a type 104(d)(l) citation No. 326835, was improperly 

issued on August 4, 1981. The notice challenged the findings 

accompanying the citation that the violation significantly and 

substantially contributed to the cause and effect of a mine safety 

hazard and was caused by an unwarrantable failure to comply with the 

standard. Pursuant to notice, a hearing was held in Raton, New 

Mexico. Subsequent to the hearing, the Secretary of Labor, 

(hereinafter "Secretary"), filed a petition proposing the assessment 

of a penalty against Kaiser based upon citation No. 326835 alleging 

a violation of mandatory safety standard 30 C.F.R. 75.601-1. 

1951 
The parties stipulated that the above two cases be 

consolidated and that a decision in the civil penalty case be made 

upon the record <leveloped in the notice of contest case. Both 

parties submitted post-hearing briefs. 

STATUTORY PROVISION 

Section 104(d)(l) of the Act, provides in pertinent part 

as follows: 

(1) If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety 

standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, such 

violation is of such nature as could significantly and 

substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation 

given to the operator under this Act •••• 

REGULATORY PROVISION 

30 C.F.R. § 75.601-1 provides in pertinent part: 

Circuit breakers providing short circuit protection for 

trailing cables shall be set so as not to exceed the 

maximum allowable instantaneous settings specified in this 

section; however, higher settings may be permitted by an 

authorized representative of the Secretary when he has 

determined that special applications are justified: 

Conductor Size 

AWG or MGM 

4/0 

Maximum allowable circuit breaker 

instantaneous setting1 (amperes) 

•.........••................. 2,500 _/ 

FINDINGS OF FACT 

1. Kaiser is the owner and operator of an underground coal 

mine near Raton, New Mexico known as the York Canyon Mine No. 1. 

ll There being no controversy over the type of cable and setting 

on the circuit breaker in this case, only that portion of the 

table applicable herein is set out. 
2. The subject mine has a daily production of 4,301 tons of 

coal and employees 270 miners underground. Kaiser is considered a 

large operator. 

3. The assessment of a civil penalty in this case will not 

affect Kaiser's ability to continue in business. 

4. The York Canyon mine contains six working sections 

consisting of two longwall and four continuous miner sections. 

The mine is classified as "gassy" and is subject to the specific 

methane inspection requirements found in section 103(a)(i) of the 

Act (Transcript at 13). 

5. On August 4, 1981, during an inspection of the 7 left 

longwall section of the subject mine, Federal Mine Inspector 

Daniel Martinez observed the number 2 circuit breaker in the power 

center feeding electrical current to the longwall conveyor system 

was set at its maximum setting of 4000 amperes (Tr. 22). 

6. Electrical power to operate the machinery and equipment 

in various sections of the mine is transmitted through power 

centers which act like transformers and reduces the current to an 

amount permissible for the operation of the equipment. 

7. The power center cited in this case is a box 

approximately eight feet wide by fifteen feet long containing 

circuit breakers which are designed as short circuit protection 

for the equipment in the mine. The individual pieces of equipment 

in the mine are attached by a cable to a distribution box which in 

turn is attached by another cable to the power center. Both the 

distribution box and power center are movable and move along in 

conjunction with the mining process. The distribution boxes are 

moved more frequently, possibly two times a week, whereas the 

power center may move only once every two months (Tr. 31). 

8. The circuit breaker in the power center cited in this 

case was used to protect the supply of electrical power to the 

distribution box for the longwall conveyor system. The cable 

between the power center and distribution box was approximately 

500 feet long Essex 4/0 3 conductor cable with an outer rubber 

jacket encasing three phase wires plus a ground and a ground pilot 

conductor (Tr. 32). 

9. Kaiser was cited on two prior occasions, July 13 and 23, 

1981, for similar violations of standard 75.601-1 as that 

contained in citation No. 326835 (Ex-G-3 and G-4). 

195~ 
ISSUES 

The. issues in this case are: 

1. Whether a violation of 30 C.F.R. 75.601-1 occurred as 

alleged in citation No. 326835. 

2. Whether such violation was of such a nature as could 

significant and substantially contribute to the cause and effect 

of a mine safety hazard. 

3. Whether such violation was caused by an unwarrantable 

failure of the operator to comply with the mandatory safety 

standard. 

4. If a violation is found, what is the appropriate penalty 

to be assessed. 

DISCUSSION 

TRAILING CABLES: 

There is no dispute between the parties that the circuit 

breaker in the power center serving the longwall conveyor was set 

at a maximum setting of 4000 amperes. Also, it i$ agreed that 

section 75.601-1 requires that circuit breakers for trailing 

cables of the size involved here should be set at 2500 amperes. 

However, Kaiser argues that the cable between the power center and 

the distribution box cited in this case is not a trailing cable as 

specifically referred to in§ 75.601-1 and therefore not subject 

to the maximum allowable circuit breaker settings for certain 

cable sizes. Kaiser argues that trailing cables are used 

primarily to connect the distribution boxes to various pieces of 

machinery used in the mining process and that they are exposed to 

hazards such as mobile equipment running over them. Kaiser 

contends that these same hazards to the cable are not present in 

the area between the power center and the distribution boxes. 

An examination of the regulations causes me to reject 

Kaiser's definition of what is a trailing cable. Admittedly, 

there is not a definition of trailing cable in part 75 of the 

regulations or in parts 55, 56 and 57 covering electricity in open 

pit, sand and gravel and nonmetal mines. However, the term is 

expressly defined in part 18 of the regulations which deals with 

electrical equipment in general. 

It must be noted that the definitions in part 18 are prefaced 

by the phrase "as used in this part." However, I believe, lacking 

specific definitions in part 75, these definitions should be 

applicable as the term should not mean one thing in part 75 and 

1954 
another in 18. Particularly since the term trailing cable is used 

in at least five different parts of the regulations but is defined 

only once, that being in part 18 which applies to electric motordriven mine equipment and accessories. Under subpart A, general 

provisions, are several definitions that are particularly relevant 

to this case and are as follows: § 18.2 definitions. 

"Accessory" means associated electrical equipment, 

such as a distribution or splice box, that is not an 

integral part of an approved (permissible) machine. 

"Distribution box" means an enclosure through which one 

or more portable cables may be connected to a source 

of electrical energy, and which contains a short 

circuit protected device for each outgoing cable. 

"Portable cable" or "trailing cable" means a flameresistant, flexible cable or cord through which electrical 

energy is transmitted to a permissible machine or accessory. (A portable cable is that portion of a power 

supply system between the last short circuit protective 

device, acceptable to MSHA, in the system and that machine 

or accessory to which it transmits electrical energy.) 

The term "portable gate end boxes", "distribution box", and 

"distribution center" were used throughout the hearing to describe 

the piece of equipment into which the cables from the power center 

entered, and from which the cables then extended to various 

equipment operating on the longwall system. These boxes, whether 

distribution centers or portable tail gate boxes, were described 

as small sized, covered, square boxes, which in addition to 

switches, contained circuit breakers. They are mounted on skids 

and are moved at least several times a week as the mining process 

continued. It is obvious that these boxes by their description by 

witnesses' testimony at the hearing are an "accessory" as defined 

in part 18.2. It follows that the 4/0 cable in this case that 

connected the distribution box as "accessory" to the power center 

was a trailing cable as above defined for it is a "flame 

resistant, flexible cable or cord through which electrical energy 

is transmitted to a permissible machine or accessory." (emphasis 

added) • 

In light of the foregoing, I find that the cable involved in 

this case is a trailing cable as described in 75.601-1. Although 

I have seriously considered Kaiser's arguments to the contrary, I 

must believe that the purpose of the regulation is to provide 

protection in the form of a circuit breaker for the cable that is 

feeding power to the machine directly or by way of an accessory in 

the form of a distribution box. This protection provides a proper 

maximum setting of the circuit breaker for the particular type and 

size of cable used, should an electrical problem occur such as a 

ground fault or short circuit. 

1955 
WARRANTABLE FAILURE 

In that the parties agreed as to the type of cable being used 

in this instance, and it is admitted that the No. 2 circuit 

breaker in the power center was set at 4000 amperesr whereas the 

maximum allowed under 75.601-1 is 2500 amperes, I find that a 

violation of the regulation occurred. 

Kaiser further argues that if it is found that a violation 

occurred, there was not an unwarrantable failure on their part in 

this instance. It is contended that even though Kaiser had been 

cited for similar violations on two prior occasions, the specific 

issue is whether they knew or should have known about the 

particular circuit breaker cited here. 

The term "unwarrantable failure" was defined by the Interior 

Board of Mine Operation Appeals in Ziegler Coal Company, 7 IBMA 

280 (1977) as follows: "[A]n inspector should find that a 

violation of any mandatory standard was caused by an unwarrantable 

failure to comply with such standard if he determines that the 

operator involved has failed to abate the conditions or practices 

constituting such violation, conditions or practices which the 

operator knew or should have known existed or which it failed to 

abate because of a lack of due diligence, or because of indifference or a lack of reasonable care." This d~finition was 

approved in the legislative history of the 1977 Act. s. Rpt. No. 

95-181, 95th Cong., 1st Sess. 32 (1977). 

The evidence of record in this case shows Kaiser was issued 

two prior citations for violations of 75.600-1 on July 13 and 23, 

1981 and that Kaiser was aware of the existence of the problem 

with the circuit breakers. However, Kaiser argued, and it was 

indicated by memorandums they had issued, that the problem arose 

from disgruntled employees tampering with the settings. Even 

assuming that it were true that employees were responsible for the 

wrong settings involved in these citations, the operator's prior 

knowledge requires it to take whatever steps are necessary to 

prevent the reoccurrence of these acts and stay in compliance with 

the regulatioris of the Act. If it is not accomplished by 

memorandum, then other protective measures must be adopted. I 

therefore find that Kaiser demonstrated unwarrantable failure in 

their actions in this case. 

SIGNIFICANT AND SUBSTANTIAL 

Kaiser further argues that if a violation is found in this 

case, it was not such as to be of a significant and substantial 

nature. Extensive and divergent testimony was presented by both 

1956 
parties on the safety hazards associated with the circuit breaker 

on the power center being set at 4000 amperes rather than the 2500 

amperes provided for in the Act for the type of cable being used. 

The Secretary contends in his brief. that the violation would 

most probably result in the cable over-heating and as a consequence cause a fire or explosion. It was conceded that large 

numbers of miners would normally not be in the immediate area of 

the cable, but miners traveling along the area where the cable lay 

or performing pre-shift and on-shift inspections would be exposed. 

Also, if a fire or explosion occurred in that portion of the cable 

located in the intake air entry, smoke and fire would be carried 

forward into the face areas and present a hazard to miners working 

there. 

Inspector Martinez, a MSHA designated coal mine inspectorelectrical, testified that should a short circuit occur in the 

cable, with the circuit breaker set at 4000 amperes, the breaker 

would not trip out and the cable would become over-heated and 

catch fire. This would occur because of an excess of current flow 

(Tr. 37, 38). Further, Martinez stated that the burning of the 

cable caused by fire or explosion would cause smoke which would be 

ventilated down the face because of the location of the cable 

which would be inhaled by the miners resulting in asphyxiation, 

lung damage, and possible death. Also, the fire in the cable 

could cause a fire in the coal seam or float coal dust and 

possibly methane (Tr. 40, 93). 

Kaiser refutes the testimony of inspector Martinez and argues 

that the construction of the cable and its specific location 

between the power center and distribution box made it highly 

unlikely it would suffer any damage that would cause a short 

circuit or ground fault resulting in an excessive load of 

electrical current. Also, because of the thermal trip system 

built into the circuit breaker and the existence of a ground fault 

system also installed, there was no probability of the occurrence 

described by Martinez happening. Fred Rivera, an electrical 

engineer and Kaiser's electrical foreman, testified that the 

setting of the circuit breaker at 4000 amperes rather than 2500 

amperes, under the circumstances involved here, did not create a 

hazard. Also, the chance of fire or an electrical shock due to 

the high setting was practically impossible due to the 

construction of the cable (Tr. 116, 120). 

The critical questions in this case are highly technical and 

Rivera's credentials as an electrical engineer and his apparent 

candor as a witness give considerable credibility and weight to 

this testimony regarding the equipment utilizerl at the area cited 

here. The most credible evidence in this matter clearly 

demonstrates that the cable used to connect the power center to 

1957 
the distribution box serving the longwall conveyor was 

approximately 500 feet long consisting of 4/0 Essex, three phase, 

SHD cable. Because of its location, this cable is not exposed to 

the same· hazards as the trailing cables that connect the 

distribution boxes to the moving equipment. That cable can incur 

damage resulting in a short circuit from being run over by 

equipment or a rock falling on it. The cable between the power 

center and distribution box is five times the size of the cable 

connecting the box to the equipment. 

The circuit breaker in the distribution box is set to trip at 

800 amperes for each piece of equipment connected to it and would 

trip-out and disconnect should there be a problem between it and 

the equipment it serves. The only problem considered in this 

citation is that which could arise with the cable between the 

power center and the distribution box. This would likely be a 

short circuit caused by damage to the cable. In addition to the 

circuit breaker in the power center involved here, there is a 

ground fault protection designed to trip out and disconnect the 

electrical power should a phase wire become grounded causing at 

least 5 amperes to run through the ground. This would occur 

should the cable be damaged. 

Also, incorporated in the system is further protection in the 

form of a thermal trip set to disconnect at 600 amperes. This is 

designed to trip out the electrical current should it detect a 

load of 600 amperes or more for four or five seconds. This is 

similar to having too many app~iance cords plugged into an 

electrical socket and over-loading the circuit which causes the 

fuse to trip. 

Rivera stated that the cable is very substantial with a thick 

outer sheath covering three power conductors which include a 

metallic shield wrapped around the outer insulation of the phase 

indicator which is a quarter of an inch thick. In the circumstances where this particular cable was located, it was highly 

improbable that the cable would receive external damage that would 

cause a short circuit (Tr. 116, 120). If damage occurred to the 

cable from external causes, such as a puncture to the outer shell, 

this would cause contact with the grounding conductor sending 

current of less than 5 amperes and tripping the breaker before a 

short circuit occurred. If the cable were to heat for four to 

five seconds, the thermal rating of the breaker trips at 600 

amperes which disconnects the current. If it were possible to 

maintain 3000 amperes, as an example for four to five seconds, 

this is what would happen (Tr. 118). A short circuit usually 

causes a surge of current far in excess of the 4000 amperes that 

the circuit breaker was set at and would immediately trip the 

breaker anyway. ·The final opinion of Rivera was that the 

likelihood of a fire or electrical shock resulting from this 

particular circuit breaker being set at 4000 amperes instead of 

2500 is practically impossible (Tr. 120). 

1958 
In light of the foregoing, I conclude that there is not a 

reasonable likelihood of an injury to a miner as a result of the 

violation herein and that the Secretary has failed to prove by a 

preponderance of the evidence that the violation was significant 

and substa.ntial. 

Also, by failure to sustain his burden of showing that the 

violation was significant and substantial, the§ 104(d)(l) order 

can not stand. 

PENALTY 

In Island Creek Coal Co., 2 FMSHRC 279,280 (February 1980), 

the Commission held that section llO(a) of the Act, 30 u.s.c. 

§ 820(a), mandates a penalty for the violation of any mandatory 

safety standard regardless of the impropriety of a 104(d)(l) 

order. Kaiser must therefore be assessed a penalty for their 

violation of § 75.601-1 which is a mandatory safety regulation. 

The six criteria for assessing a penalty are set out in 30 

u.s.c. § 820(i). The size of the operator is large. No claim was 

made that the proposed penalty will adversely affect Kaiser's 

ability to continue in business, and no such adverse consequences 

will be assumed. I find that Kaiser was negligent in not taking 

steps to ensure compliance, i.e., making the settings tamper 

proof. Kaiser's knowledge of the general problem of excessive 

circuit breaker settings is evident from their own internal memos 

and the two prior citations. 

The possibility of injury is small. ~s discussed above, the 

collateral protection provided by the ground fault and thermal 

trip settings make it very unlikely that an injury would occur. 

If an injury did occur it would probably be serious or fatal. If 

the cable began to burn or smoke it could cause asphyxiation or a 

methane explosion. Generally there are no employees working in 

the area between the power center and the distribution box. 

However, if an explosion did occur, there is a possibility that 

the smoke could be carried to the working face where the longwall 

shear was being operated. This would expose miners to smoke 

inhalation or asphyxiation. 

CONCLUSIONS OF LAW 

Upon the entire record, and in consonance with the factual 

findings embodied in the narrative portion of this decision, it is 

concluded: 

1. That the Commission has jurisdiction to decide this 

matter. 

2. That Kaiser violated the mandatory standard published at 

30 C.F.R. ~ 75.601-1. 

1958 
3. That the violation was caused by an unwarrantable failure 

on the part of Kaiser to comply with standard 30 C.F.R. 

§ 75.601-1. 

4. That the violation was not of such a nature as could 

"significantly and substantially" contribute to the cause and 

effect of a safety or health hazard. 

5. That Kaiser's notice of contest or application for review 

of citation No. 32fi835 is sustained as to the finding that the 

violation was "significant and substantially" and the designation 

of this citation as being a section 104(d)(l) violation is removed 

and amended to be a 104(a) violation. 

6. That $200.00 is the appropriate penalty for the 

violation. 

ORDER 

Accordingly, the 104(a) type citation No. 326835 is ORDERED 

AFFIRMED: and Kaiser is ORDERED to pay a civil penalty of $200.00 

in connection with such affirmed citation within 40 days of the 

date of this decision. 

~d~ .;:.~g{l E. Vail 

Administrative Law Judge 

Distribution: 

David B. Reeves, Esq., Kaiser Steel Corporation 

P.O. Box 217, A-414, Fontana, California 92335 (Certified Mail) 

Leo J. McGinn, Esq., Office of the Solicitor, United States 

Department of Labor, 4015 Wilson Boulevard, Arlington, Virginia 

22203 (Certified Mail) 

/blc 

1960 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 83-138 

A.C. No. 46-02557-03504 

v. 

Jerry Run Surf ace Mine 

THOMPSON COAL & CONSTRUCTION, 

INC., 

Appearances: 

Before: 

Respondent 

DECISION 

Thomas A. Brown, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner; 

Charles G. Johnson, Esq., Johnson & Johnson, 

Clarksburg, West Virginia, for Respondent. 

Judge Melick 

Hearings were held in this case on September 22, 1983, in 

Clarksburg, West Virginia. A bench decision was thereafter rendered and appears below with only non-substantive changes. 

The case before me today is based upon the 

Petition for Assessment of Civil Penalty filed by 

the Secretary of Labor, Mine Safety and Health Administration (MSHA). One violation of the standard at 30 CFR Section 41.20 is alleged and charges the Thompson Coal & Construction Company, Inc. 

(Thompson), with failing to file an updated "Form 

2000-7" with the MSHA District Manager listing the 

operating officials and principal officer in charge 

of safety at the Jerry Run Mine. The standard at 

30 CFR Section 41.20 requires that "[e]ach operator of a coal or other mine shall file notif ication of legal identity and every change thereof 

with the appropriate District Manager of the Mine 

Safety and Health Administration by properly completing, mailing, or otherwise delivering Form 

2000-7. 'legal identity report' which shall be 

provided by the Mine Safety and Health Administration for this purpose." 

1961 
The general issue before me, of course, is 

whether there was indeed a violation as alleged, 

and, if so, what is the appropriate civil penalty 

to be assessed. The specific issue before me is 

whether on December 8th, 1982, the date this citation was issued and the violation cited, the mine 

operator had failed to file a modification of his 

legal identity report as required. The evidence 

in this case shows that as of March 15, 1982, the 

operator had filed a proper legal identity report 

(Form 2000-7), and there is no dispute over that 

(Exhibit G-2). At that time, Richard L. Bryant 

was identified as mine superintendent and in 

charge of health and safety. The evidence shows 

that when MSHA Inspector Alonzo Curry appeared on 

December 8, 1982, for a spot inspection at Thompson's Jerry Run Mine, Bryant was not present and 

that Larry Reall represented to the inspector that 

he was then in charge of health and safety and was 

mine superintendent. It is not at all clear, however, how long Mr. Reall had been in charge, either as superintendent or in charge of health and 

safety matters, and it appears that there was a 

transitional period aroudd this time; that is, 

transition from Mr. Bryant's being superintendent 

and in charge of health and safety and turning 

those responsibilities over to Mr. Reall. 

Now, Section 41.20 of the regulations does 

not set forth any time limit within which the operator must file his notification of changes in his 

legal identity. However, 30 CFR § 41.12 gives the 

operator thirty days after the occurrence of any 

change to file the information required and the 

Secretary has acknowledged in this case that the 

operator would indeed have thirty days from the 

date of any change to file any corresponding modification to his legal identity report. 

Under the circumstances of this case it is 

not known precisely when the change in job responsibilities actually occurred. There is absolutely 

no evidence on that point so as of December 8th, 

when the citation was drawn, it is not known whether Mr. Reall had been acting as superintendent and 

in charge of health and safety for one day, five 

days, twenty days, thirty days, forty days, or 

whate~er. Under the circumstances, it is impossible to determine whether the operator failed to 

1962 
file within 30 days of the change in management. 

Accordingly, I cannot find a violation of the 

cited standard, and I am going to vacate the citation. 

I think in spite of this ruling that Mr. Thompson does recognize the significance of filing these 

reports even though, in this case, it appears that 

there is.no question that there was someone in charge, 

whether it was Bryant or Mr. Reall. If MSHA is unable to maintain a current roster of who is responsible for the operation of a mine and who is going to 

be in charge of health and safety, some less responsible operators would certainly use that to their 

advantage in not complying with health and safety 

matters and perhaps would not even have someone in 

charge of health and safety. So, although there is 

not that situation in this case, I think the operator would have to recognize that there is a valid 

reason for this regulation to be on the books, and 

it is essential that it be complied with. 

ORDER 

Citation No. 2020854 is hereby v cated and this case is 

dismissed. 

Distribution: 

Charles G. Johnson, Esq., Joh 

burg, WV 26301 (Certified ma 

nson, P.O. Box 2332, ClarksThomas A. Brown, Jr., Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified mail) 

nsw 

1963 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 17 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

BRIDGETT COAL COMPANY, 

Respondent 

Docket No. VA 82-41 

A.C. No. 44-05171-03022F 

No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

The Secretary has moved for permission to withdraw his 

petition for assessment of civil penalty on the ground that 

Respondent has paid the full amount of the proposed penalty 

($3,000). 

Section llO(k) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. 801, et~' provides that "No 

proposed penalty which has been contested before the Commission 

under Section 105(a) shall be compromised, mitigated, or 

settled except with the approval of the Commission." Respondent's 

payment of the proposed penalty is deemed to be an offer of 

settlement, and not grounds for withdrawing the Secretary's 

petition. Accordingly, the Secretary's motion to withdraw 

the petition is DENIED, but deemed to be a motion to approve 

settlement. 

This proceeding involves a Section 104(a) citation, No. 

942313, alleging a violation of 30 CFR 75.200, for failure 

of the operator to follow the appoved roof control plan by 

not installing cap blocks between the jacks and the mine roof, 

or not providing bearing plates of not less than 36 square inches. 

The Secretary contends the violation was serious because 2 roof 

bolters were killed when an undetected slip in the roof caused 

a roof fall. Investigation by MSHA determined that the absence 

of the required cap blocks or steel plates contributed to the 

extent of the fall, and the two fatalities. The Secretary also 

contends the operator was negligent since it is its responsibility 

to enforce the provisions of the roof control plan. There were 

no witnesses to the accident, and the required blocks or plates 

were used in other areas of the mine as required. Based upon 

the single penalty assessment criteria set forth in 30 CPR 

100.4 MSHA proposed a penalty in the amount of $3000.00. 

1964 
The Solicitor of Labor has been advised by MSHA that payment 

in full was made by the Operator, on September 30, 1983. 

Counsel for the Secretary has reviewed the factual 

circumstances of the violation as well as all relevant criteria 

including company size, negligence, gravity, and good faith 

in abatement. Based upon this review of the facts· and 

assessment precedures employed, the Secretary believes payment 

in full of the proposed penalty in the amount of $3000.00 is 

reasonable, and that payment in this amount will serve to 

effect the intent and purposes of the Act. 

I find that the proposed settlement is consistent with 

the criteria for assessing civil penalties in Section llO(i) of 

the Act and is supported by the record. Accordingly, the 

motion is GRANTED. 

ORDER 

WHEREFORE IT IS ORDERED THAT settlement by payment of the 

above-mentioned amount of civil penalty is APPROVED and this 

proceeding is DISMISSED. 

Distribution: 

4}ifi!, ~ ':/ ~ V't/tWill'iam Fauver 

Administrative Law Judge 

Leo J. McGinn, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Boulevard, Arlington, Virginia 22031 

(Certified Mail) 

Dowell Richardson, President, Bridgett Coal Company, P.O. Box 

105, Shannon Heights, Richlands, Virginia 24641 (Certified Mail) 

kg 

1965 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE NOV 2 21983 FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

. Petitioner 

v. 

TURNER BROTHERS, INC., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No: CENT 83-12 

A/O No: 34-01242-03501 

Porter No. 1 Mine 

Appearances: Reid Tilson, Esq., Office of the Solicitor, 

U.S. Department of Labor, 555 Griffin Square, 

Dallas, TX 75202, for Petitioner: 

Before: Judge Moore 

This civil penalty case came on for hearing in Tulsa, 

Oklahoma, on November 1, 1983. Mr. Tilson, an attorney in 

the Dallas Regional Solicitor's office came to Tulsa from 

Dallas, and I came to Tulsa from Falls Church, Virginia, but 

respondent's counsel, Mr. Petrick, apparently did not think this 

case important enough to come the approximate 40-some miles 

from Muskogee, Oklahoma. Nor did he think it important 

enough to inform either Mr. Tilson or me that he intended 

not to appear. Before making my travel plans the week 

before the trial I called Mr. Petrick's office, and while he 

was out of town, his secretary did manage to reach him. She 

informed me that he said to go ahead with the hearing because 

he could not reach a settlement. 

Mr. Tilson had informed me by telephone prior to the 

trial that he had made a settlement offer, but that he had not 

been able to get in touch with Mr. Petrick, himself, to learn 

what Mr. Petrick's views were. While I do not know what settlement 

was offered by Mr. Tilson, I suspect it was under the proposed 

assessment of $168. It is a matter of public record that in 

the week before trial, Mr. Petrick had failed to appear at a 

Turner Brothers hearing before Judge Melick in Fort Smith, 

Arkansas. Because of this cavalier attitude toward the 

Federal Mine Safety and Health Act, which shows the contempt 

with which the respondent regards the Federal inspectors and 

the Federal Mine Safety and Health Review Commission, I am 

adding $100 to each penalty that I hereinafter assess. 

1966 
The five citations involved in this case concern two 

pieces of eq~ipment. As the testimony of Inspector Clyde Davis 

shows, citation number 2007441 was issued because a bulldozer 

did not have the seat belts required by 30 C.F.R. 77.1710(i). 

The bulldozer was working on a 10% grade (l' vertica~ly for 

every 10' horizontally) which the inspector considered steep. 

The bulldozer is normally in operation for twelve hours a 

day, seven days a week. If the bulldozer had turned over the 

resulting injury could have been fatal. 

Turner Brot~ers is the largest, or second largest coal 

mining operation in the state of Oklahoma. I find it was 

negligent and that there is a small history of prior violation. 

Abatement was accomplished the next day, but the bulldozer 

continued in operation after the citation was issued. The 

Secretary did not prove a high degree of gravity. The 

Assessment Off ice considered this an appropriate case for a 

$20 single penalty. I assess $100 plus the previously mentioned 

$100 for attitude for a total of $200. 

The other five citations involved a truck about the size 

of the old Army 6x6 which contained one thousand gallons 

of diesel fuel plus lubricating oil. This truck had the 

function of refuelling and oiling all the other mobile equipment at the mine. At the time that the citations were issued 

the truck had not performed its usual function of going to 

the location of the equipment that needed servicing. Two 

pieces of equipment had come to the truck for fuel, but 

ordinarily it would go throughout the mine servicing the 

various pieces of mobile equipment. This truck had no parking 

brake (Citation 2007442), it had no regular road brake 

(Citation 2007443), it had no horn (Citation 2007444) and 

it had no back-up alarm (Citation 2007445). The truck was 

a menace and had an imminent danger order been issued I 

would have affirmed it. Instead of an order, four citations 

were issued with respect to this truck, and three of them 

were not marked significant and substantial and were assessed 

at $20 each. Citation 2007443 was marked as significant 

and substantial and the assessment off ice did assess a $68 

penalty for that citation. 

The inspector issued another citation, No: 2007446 which 

charged a violation of 30 C.F.R. 77.1606(a) in that because 

of all of the other violations it was obvious that the equipment was not being inspected and equipment defects were not 

being reported to the mine operator. I find that all these 

citations were valid and that the hazard and negligence were 

1967 
of a very high order. I assess $1,000::/ for each of the 

five citations concerning the refuelling truck and add $100 

to each for respondent's attitude. 

The citations are AFFIRMED and respondent is ORDERED to 

pay to MSHA, within 30 days, a penalty in the total sum 

of $5,700. 

Distribution: 

~f. 0;~/- Charles C. Moore, Jr., 

Administrative Law Judge 

Robert J. Petrick, Esq., P.O.B. 447, Muskogee, OK 74401 

(Certified Mail) 

Mr. William Turner, President, Turner Bros. Inc., P.O.B. 447, 

Muskogee, OK 74401 (Certified Mail) 

Reid Tilson, Esq., Office of the Solicitor, U.S. Department 

of Labor, 555 Griffin Square, Suite 501, Dallas, TX 75202 

(Certified Mail) 

* There was a discrepancy in the Inspector's testimony 

about whether the truck was taken out of service, or 

whether respondent continued to use it. (Tr. 24). I 

accept his latter testimony (Tr. 37) that the truck 

was taken out of service. Otherwise, I would assess 

higher penalties concerning this truck. 

/db 

1968 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 NOV 2 3 1983 

MONTEREY COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MONTEREY COAL COMPANY, 

Respondent 

CONTEST PROCEEDING 

Docket No. WEVA 83-136-R 

Order No. 2034234; 3/2/83 

Docket No. WEVA 83-137-R 

Citation No. 2034235; 3/7/83 

Wayne Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 83-199 

A. C. No. 46-05121-03513 

Docket No. WEVA 83-230 

A. C. No. 46-05121-03514 

Wayne Mine 

DECISION APPROVING SETTLEMENT AND 

ORDER GRANTING MOTION TO DISMISS 

Before: Judge Steffey 

Counsel for the Secretary of Labor filed on November 16, 

1983, in the above-entitled proceeding motions to approve settlement with respect to the two civil penalty cases listed above. 

Under the settlement agreements, respondent has agreed to pay 

the full amount of $3,500 proposed for the violations alleged in 

both civil penalty cases. Counsel for Monterey Coal Company 

filed on November 18, 1983, a motion to withdraw the contest 

pleadings filed in Docket Nos. WEVA 83-136-R and WEVA 83-137-R 

on the grounds (1) that the witnesses on whose testimony Monterey would have to rely at a hearing are unavailable and (2) that 

Monterey has entered into settlement agreements with respect to 

the civil penalty cases. I find that the motions to approve 

settlement and the motion to withdraw should be granted for the 

reasons hereinafter given. 

Section llO(i) of the Federal Mine Safety and Health,Act of 

1977 lists six criteria which are required to be considered in 

determining civil penalties. One of those criteria is whether 

the payment of penalties would cause respondent to discontinue 

in business. There are no data in the official file or in the 

motions for approval of settlement providing any information 

about respondent's financial condition. The Commission held in 

Sellersburg Stone Co., 5 FMSHRC 287 (1983), that when an operator 

1969 
fails to present any evidence concerning its financial ability 

in a civil penalty proceeding, a judge may presume that payment 

of penalties will not cause the operator to discontinue in business. In the absence of any information in this proceeding to 

support a contrary finding, I find that payment of penalties will 

not adversely affect respondent's ability to continue in business. 

As to the criterion of the size of the operator's business, 

the proposed assessment sheets attached to the motions for approval of settlement show that Monterey Coal Company produces about 

18,670,610 tons of coal on an annual basis and that the Wayne 

Mine, here involved, produces approximately 149,220 tons of coal 

per year. Those production figures support a finding that respondent is a large operator and that any civil penalties assessed 

in this proceeding should be in an upper range of magnitude insofar as they are determined under the criterion of the size of respondent's business. 

A third criterion listed in section llO(i) is respondent's 

history of previous violations. The proposed assessment sheets 

accompanying the motions for approval of settlement indicate that 

Monterey has been assessed penalties for 60 violations during 129 

inspection days in the 24-month period preceding the occurrence 

of the two violations alleged in this proceeding. That history 

of previous violations caused MSHA to assign two penalty points 

under section 100.3(c) of the penalty formula described in 30 

C.F.R. § 100.3. Inasmuch as an operator may be assigned up to 

20 penalty points under section 100.3(c), I find that respondent 

has a very favorable history of previous violations and that low 

penalties should be assessed to the extent that they are determined under the criterion of respondent's history of previous 

violations. 

A fourth criterion listed in section llO(i) requires consideration of whether respondent demonstrates a good-faith effort 

to achieve compliance after an alleged violation has been cited. 

Both of the motions for approval of settlement state that respondent did demonstrate a good-faith effort to achieve compliance 

after the violations here involved were cited. Therefore, respondent should be given credit for having reacted properly when 

it was advised that the inspector believed it had violated two 

mandatory health and safety standards. 

The remaining two criteria of gravity of the violations and 

whether respondent was negligent with respect to their occurrence 

should be considered in light of the specific violations alleged 

by the inspector. Both of the violations involve the same factual situation in that six miners, including a section foreman, 

were makin9 repairs to a continuous-mining machine. In Citation 

No. 2034235, the inspector cited respondent for a violation of 

section 75.1726(b) because of respondent's failure to block the 

raised ripper head of the machine. Citation No. 2034236 cited 

respondent for a violation of section 75.1725(c) because the cathead of the machine's power cable had not been tagged and locked 

out. 

1870 
The motion for approval of settlement states that both alleged violations were the result of a high degree of negligence 

because a section foreman was assisting in making the repairs 

and he should have made certain that the ripper head was secured 

to prevent it from falling and should have made certain that the 

power would not come on while the repairs were being made. The 

motion also states that both alleged violations were serious because the same continuous-mining machine on the same working section had previously been involved in a fatal accident in similar 

circumstances. 

In view of the fact that a large operator is involved and 

that the alleged violations were both serious and associated with 

a high degree of negligence, it appears that MSHA appropriately 

proposed a penalty of $2,000 for the violation of section 75.1726 

(b) and a penalty of $1,500 for the violation of section 75.1725 

(c). Since respondent has agreed to pay the full amounts proposed by MSHA, I find that the motions for approval of settlement 

should be granted and that Monterey's motion for withdrawal of 

the contest pleadings should be granted. 

WHEREFORE, it is ordered: 

(A) Monterey Coal Company's motion to withdraw is granted, 

the contest pleadings filed in Docket Nos. WEVA 83-136-R and WEVA 

83-137-R are deemed to have been withdrawn, and the proceedings 

in those two dockets are dismissed. 

(B) The motions for approval of settlement filed by the Secretary of Labor are granted and the settlement agreements are 

approved. 

(C) Pursuant to the parties' settlement agreements, Monterey 

Coal Company shall, within 30 days from the date of this decision, 

pay civil penalties totaling $3,500 which are allocated to the 

respective alleged violations as follows: 

Docket No. WEVA 83-199 

Citation No. 2034235 3/2/83 § 75.1726(b) ..•...... $2,000.00 

Docket No. WEVA 83-230 

Citation No. 2034236 3/2/83 § 75.1725(c) $1,500.00 

Total Settlement Penalties in This Proceeding .... $3,500.00 

~G.r;/~ Richard c. steffe~ ~ Administrative Law Judge 

1971 
Distribution: 

Carla K. Ryhal, Esq., Monterey Coal Company, P. O. Box 2180, 

Houston, TX 77001 (Certified Mail) 

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

of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Michael H. Holland, Esq., United Mine Workers of America, 900 -

15th Street, NW, Washington, DC 20005 (Certified Mail) 

yh 1972 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 NOV 2 b 1983 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

Docket No. LAKE 83-9-D 

FRANK CRONIN AND MERREL NIXON, 

Complainant 

MSHA Case No. VINC-CD-82-17 

Sunnyhill No. 9 South Mine 

v. 

PEABODY COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Patrick M. Zohn, Esq., Office of the Solicitor, 

U. S. Department of Labor, Cleveland, Ohio, for 

Complainant; 

Michael o. McKown, Esq., St. Louis, Missouri, 

for Respondent; 

Thomas Myers, Esq., Shadyside, Ohio, for Intervenor· 

Local Union 1340, UMWA District Six. 

Judge Steffey 

Pursuant to an order consolidating issues and providing for 

hearing issued August 12, 1983, a hearing in the above-entitled 

proceeding was held on September 27 through September 30, 1983, 

in Columbus, Ohio, under section 105(c) (2), 30 u.s.c. § 815(c) (2), 

9f the Federal Mine Safety and Health Act of 1977. 

The complaint was filed on October 19, 1982, and alleges 

that respondent attempted to discharge both complainants because 

they refused to shovel coal out of a belt feeder without proper 

precautions having been taken to assure that the belt feeder was 

deenergized and that all power to the belt feeder had been disconnected. It is also alleged that respondent prohibited complainants from exercising their right to have a safety committeeman 

called to determine if complainants were properly exercising their 

individual safety rights. The discharge was subsequently modified 

by an arbitrator to a 5-day suspension without pay and employee 

benefits. Therefore, the primary economic relief sought ~y complainants was full back pay and employment benefits for the 5-day 

suspension. 

After the parties had completed their presentations of evidence, I rendered the bench decision which is reproduced below 

(Vol. IV, Tr. 30-59): 

1973 
It is necessary in a decision such as this to make some 

findings of fact. After 3 long days of hearing, the findings 

are somewhat extensive, but I feel that they are necessary in 

order to set forth the basic facts which the various witnesses 

have presented. The findings will be made in enumerated paragraphs. 

1. Merrel Nixon and Frank Cronin were working in Peabody's Sunnyhill No. 9 South Mine on June 23, 1982, on the 4-

p.m.-to-midnight shift as the loader operator and loader helper, 

respectively, in the 1 South 1 East Section. They traveled 

into the mine in a man trip and arrived on the section about 

4:45 p.m. There was a lack of brattice curtains and there were 

some water leaks in the hoses supplying water to the loading 

machine, but eventually enough curtains were obtained to provide the required 9,000 cubic feet of air per minute at the 

last open crosscut and an adequate amount of water was provided 

for loading coal. 

2. After Nixon and Cronin had loaded two or three cuts 

of coal, their section foreman, Ralph Simms, ordered them to 

go to the feeder which was out of, order. They went to the 

feeder and found that it had been trammed to a point about 25 

feet inby the tailpiece wher~ the feeder was stuck in a diagonal position in D Entry, which is also known as the belt entry. 

3. A repairman named Milan Bizic had determined that the 

tram chain had broken which prevented further movement of the 

feeder under its own power. The conveyor belt on the feeder 

was also inoperable, and Simms, the section foreman, believed 

that the repairs to the conveyor belt could not be made unless 

someone shoveled about 2 tons of coal out of the feeder. Simms, 

therefore, asked Cronin to obtain two coal shovels at the tailpiece so that the coal could be removed from the feeder where 

it had been left in a pile when the conveyor chain broke. 

After Cronin had obtained the two shovels, Nixon and Cronin 

claim that Simms asked them to get into the feeder and shovel 

out of the feeder 2 tons of coal which were in the feeder when 

the feeder's conveyor belt ceased to work. 

4. Cronin asked Simms if the power was off the feeder 

and Simms did not answer Cronin until Cronin had asked about 

the feeder's deenergization a second time. After Cronin's 

second question, Simms told Cronin the power would not hurt him 

and that the breaker had been knocked or turned off. Cronin 

and Nixon then went around to the end of the feeder into which 

the shuttle cars dump coal and started shoveling coal from that 

position with their feet on the mine floor. Nixon and Cronin 

say, however, that Simms, after telling them to get up into the 

feeder twice, gave them a third order to get up in the feeder 

and shovel coal. At that point, Nixon claims he asked Simms to 

1974 
call the Safety Committee. Nixon and Cronin say that without 

responding to Nixon's request for the Safety Committee, Simms 

left the feeder and went into the dinner hole. Nixon and 

Cronin say they thought Simms had gone to call the Safety Committeemen, but, in fact, he called the Mine Manager, John 

Ludwig, and asked him to send a vehicle to the section to transport from the mine two employees who had refused to shovel coal 

when Simms asked them to do so. 

5. After Simms had finished talking to Ludwig, he returned to the feeder where Nixon and Cronin say they were still 

shoveling coal from the dumping end of the feeder. Nixon and 

Cronin say that Simms advised them that their time had stopped 

and he told them to go to the dinner hole and wait to be taken 

out of the mine. 

6. About 20 minutes later, Ludwig arrived on the section 

with Assistant Mine Manager John Holskey. Ludwig went into the 

dinner hole where other miners were waiting for Simms to give 

them further orders. While Ludwig was in the dinner hole, the 

operator of the roof-bolting machine, Ronald Baker, told Ludwig 

that he had personally observed both Nixon and Cronin shoveling 

coal out of the feeder when he walked within 30 feet of the 

feeder on the way to the dinner hole. Ludwig responded that he 

had come to take Nixon and Cronin out of the mine rather than 

to argue the merits of the situation. 

7. While Nixon and Cronin were walking to the personnel 

carrier, known as a "mule," to be taken out of the mine, Nixon 

asked for safety glasses because Peabody has a rule that persons 

riding in open vehicles should wear safety glasses. Ludwig 

wanted to know if they had not been issued safety glasses, and 

they replj_ed, "Yes," but Cronin had left his at home and Nixon 

had left his in his clothes basket in the bathhouse. Ludwig 

obtained glasses for them and they started out of the mine in 

the mule, but the batteries were low on power and would hardly 

move the mule. The batteries continued to lose power, so Ludwig 

and Holskey called for another vehicle to come to pick them up 

and they transferred to another personnel carrier called a 

four-man rover. Nixon asked to inspect the brakes and lights 

before he got into the rover, but Cronin said that Holskey told 

Nixon to get the goddamn hell in here; you don't need to inspect. Therefore, Nixon and Cronin got into the rover and all 

four men went on out of the mine. Once they reached the surface, Nixon saw MSHA Inspector Elmer Cornett and went to him 

to ask him to check the lights and the brakes on the rover because Holskey had refused to let him examine the rover. Nixon 

went with Cornett to examine the brakes and lights on the rover 

and Cornett found them to be satisfactory. Nixon then told 

Cornett about a missing jack and bar. Cornett wrote a citation 

for the failure of the rover to have a jack and bar, after 

1975 
Cornett had returned to his office and had obtained a proper 

safeguard notice for inclusion in the citation as a basis for 

its issuance. 

8. Nixon also told Cornett that he and Cronin had been 

fired, but Nixon did not finish explaining the details to 

Cornett because Ludwig advised Nixon and Cronin that they 

should leave the mine property as they had been suspended. 

9. Nixon and Cronin came back to the mine for a 24/48-

hour meeting on their suspension notices, but there had been 

a partial work stoppage and John Goroncy, the mine superintendent, declined to participate in a discussion of the merits of 

the suspension at that time. Goroncy did, however, hand Nixon 

and Cronin a letter of suspension with intent to discharge. 

A meeting on the merits was eventually held after the 48-hour 

period had expired and the matter went to arbitration. A hearing was held on July 15 and July 22, 1982, and the arbitrator's 

decision was issued on August 10, 1982. The arbitrator held 

that Nixon and Cronin had contrived the safety issue as a pretext after they were discharged, but he also held that discharge was overly severe under the circumstances and required 

Peabody to reinstate Nixon and Cronin after suspending them 

for 5 days without pay and other employee benefits. 

10. Elmer Cornett, the inspector who wrote the citation 

for failure of Peabody to have a jack in the rover, as described 

in Finding No. 7 above, was at the mine on June 23 for the purpose of performing a respirable dust inspection.· He had been 

on the 1 South off 1 East Section for about the first 2 or 3 

hours of the shift and had taken an air reading indicating at 

that time that there was a velocity of 9,500 cubic feet per 

minute at the last open crosscut. Although he was performing 

a respirable dust inspection, he could have written a citation 

for any violation he might have seen, but wrote none. He left 

the 1 South off 1 East Section before the feeder became inoperable, but he testified that it would have been a violation 

of section 75.1725(c) for Nixon and Cronin to have been inside 

the feeder shoveling coal without having the power cable locked 

out at the power center. The inspector said he would consider 

it a violation for Nixon and Cronin to shovel from the dumping 

end of the feeder if their shovels had come into contact with 

the conveyor belt while the breaker was off on the feeder but 

with the power cable still energized. He also said he would 

consider it unsafe for Nixon and Cronin to shovel out coal from 

the dumping end of the feeder while the breaker was off if the 

power cable was still energized; and that while he might not 

write a citation for shoveling in the last-described instance, 

he would still require them, that is, Nixon and Cronin, to 

stop shoveling in that situation as he considered that such 

shoveling would be an unsafe practice, because there is always 

197C 
a chance that the feeder could move even though the breaker 

has been put in the off position. 

11. Wayne Hart was one of the shuttle car operators on 

June 23 when the feeder became inoperable. Simms asked him to 

assist in the repair work on the feeder. After Hart had 

assisted Simms and Milan Bizic, the repairman, in lining up 

the tram chain, Bizic went to the parts wagon to get a connecting link. Therefore, Hart claims that he was the only other 

person present at the time Simms ordered Nixon and Cronin to 

get into the feeder and shovel coal. Hart said that he is certain that Simms wanted Nixon and Cronin to get inside the feeder 

to shovel coal, and Hart insisted that the only way the feeder 

could have been completely cleared of coal would have been for 

them to get into the feeder at its narrowest point, that is, 

inby the apron where the shuttle cars dump coal. Nixon and 

Cronin would have had to have been very close to the pick 

breakers in order to shovel from the position described in the 

preceding sentence. Hart claims that he is certain from the 

gesture made by Simms when he ordered Nixon and Cronin to 

shovel coal that Simms wanted them to shovel coal from inside 

the feeder in the aforesaid position which is also the location 

which Nixon and Cronin say they believe they were ordered by 

Simms to position themselves for shoveling. Hart also claims 

to have heard Nixon ask for the Safety Committee and alternate 

work and he supported Nixon's claim that Simms did not respond 

to Nixon's request for the Safety Committee to be called. Hart 

also claims that he thought Simms had gone to call the Safety 

Committee and said that he was very surprised when Simms returned and advised Nixon and Cronin that their time had stopped 

and that they should go to the dinner hole to be taken out of 

the mine. 

12. Milan Bizic was the repairman on 1 South off 1 East 

Section. He explained that the feeder stopped functioning when 

the chain which drives the conveyor belt stopped working and 

that he and Simms agreed that coal could still be produced on 

that shift if the feeder were trammed out of the way so that one 

of the shuttle cars could be lined up with the conveyor belt and 

used as a temporary feeder while the other shuttle car continued 

to haul coal. It was their intention to tram the feeder into 

the second crosscut outby the face, but the tram chain also broke 

so as to leave the feeder in a position which prevented use of a 

shuttle car as a substitute feeder. After Simms, Bizic, DeMoss, 

and Hart had done some alignment on the tram chain, Bizic left 

to get a connecting link. He spent about an hour at the parts 

wagon without ever finding the part he wanted, but finally he 

started back to the feeder with a bolt with which he hoped to 

make a te~porary repair of the tram chain. He found that everyone else on the crew had gone away from the feeder to the dinner 

hole, so he also went to the dinner hole and did not go back to 

work on the feeder at all. 

1977 
13. · Bizic has had 34 years of experience in coal mines 

including a lot of work as a repairman and as a safety inspector 

for Consolidation Coal Company. He did not hear Simms order 

Nixon and Cronin to get into the feeder to shovel coal, but he 

did not think it would have been safe for them to work in the 

feeder without having the trailing cable locked out at the power 

center. He said any miner had the right to go to the power center and disconnect the cathead before getting on a piece of 

equipment to work where moving parts might cause him injury, if 

the machine were to start as he has known equipment to start, 

even after the breaker switch has been turned off. Bizic said 

that if he had been present when Simms ordered Nixon and Cronin 

to shovel coal, he would have gone to the power center and would 

have locked out the cathead for the feeder's power cable regardless of whether Simms asked that that be done or not. 

14. The superintendent of the Sunnyhill Mine on June 23, 

1982, when Nixon and Cronin were suspended with intent to discharge, was John Goroncy. He was called at home by Ludwig between 11:30 p.m. and midnight and was told that Ludwig had 

brought Nixon and Cronin out of the mine for refusing to obey 

Simms' direct order to shovel coal out of the feeder. Goroncy 

specifically asked Ludwig if a safety issue was involved, and 

Ludwig said that no safety issue was raised about the refusal 

to shovel coal, but that Nixon and Cronin had requested safety 

glasses before riding in the mule and had been given glasses, 

and that Nixon had requested that he be allowed to inspect the 

four-man rover when they transferred to that vehicle, after the 

batteries ran down on the mule, and that Nixon would not get 

into the rover until Holskey had given him a direct order to do 

so. Goroncy denied that Holskey used profanity in ordering 

Nixon to get into the rover. 

15. Goroncy confirmed Nixon's and Cronin's statement that 

the next morning, June 24, Goroncy personally handed Nixon and 

Cronin letters stating that they had been suspended with intent 

to discharge. Goroncy said that he refused to hold a 24/48-

hour meeting provided for in the Wage Agreement when he learned 

that there had been a work stoppage at the Sunnyhill Mine. 

Goroncy said a 24/48-hour meeting was eventually held within 

the 48-hour period based on the date when the miners returned 

to work. Goroncy declined to reinstate Nixon and Cronin to 

their jobs after that meeting and the matter went to arbitration 

as described in Finding No. 9, supra. 

16. Goroncy, who has a B.S. degree and is a professional 

engineer with electrical training, introduced Exhibits A, G, H, 

and I to show the power circuits on the feeder. In layman's 

terms, there is a lever on the side of the feeder which, when 

pushed down, stops the power from flowing into the circuit 

breaker. The lever has to be pushed down and pulled back 

through a horizontal position to reenergize the circuit breaker. 

1978 
Additionally, there are 3 buttons to the right of the breaker 

lever as shown on Exhibit A. They are labeled and one starts 

the pick breakers to running when held in for about 2 seconds; 

another button starts the conveyor belt moving after the pick 

breakers have started; and the third button is a stop button 

which will stop both the pick breakers and the belt conveyor 

from moving, but the circuit breaker does not open until the 

lever is pushed down. Although Goroncy thinks it is safe to 

shovel coal out of the feeder with only the breaker switch 

pushed down, he.would feel safe about having a person work inside the feeder near the pick breakers only with the cathead 

on the feeder cable withdrawn at the power center. 

17. Goroncy made the decision to discharge Nixon and 

Cronin. In doing so, he did not take into consideration that 

neither of them had ever previously refused to obey a work order 

given by their supervisor. Goroncy said that it was important 

that discipline be maintained, because Peabody is responsible 

for all personnel and discipline is easily eroded if employees 

can ignore a section foreman's work orders without giving a 

reason which management can consider and evaluate at the time 

the employee refuses to obey the order. Goroncy thinks that 

the issue of Simms having ordered Nixon and Cronin to get into 

the feeder to shovel coal was raised for the first time at the 

arbitration hearing. 

18. Ralph Simms' testimony agreed in general with the 

findings made above. He agrees that he was confronted with a 

number of production problems during the early part of the 

shift on June 23, but he considers them to have been routine 

in nature. He agrees that there were broken trailing cables and 

problems with curtains and water hose connections, but he said 

that his first real difficulty occurred about 9:30 p.m. when 

the conveyor chain on the feeder broke just as a shuttle car 

was dumping coal on it. He said that he tried to get the feeder out of the belt entry so that a shuttle car could be used as 

a substitute, temporary feeder, but the tram chain broke, thereby leaving the feeder stalled partially in the second crosscut 

from the face and partially in the belt entry. At that point 

he knew he could not produce any more coal, so he left the feeder and made a tour of the face giving orders to the miners to 

hang curtains, take the cutting machine to the track for replacement of a tire, and requesting Nixon, Cronin, and Hart to 

assist down at the feeder. 

19. Simms' testimony varies from Nixon's and Cronin's in 

important respects from the point that DeMoss, Bizic, Hart, 

Nixon, and Cronin gathered at the feeder. Simms said they first 

tried to get the tram chain repaired and that DeMoss, Bizic, and 

Hart were working on that while he asked Cronin to get two 

shovels to shovel coal out of the feeder. Simms agreed that 

1979 
Cronin asked if the power was off the feeder; and Simms stated 

that he told Nixon and Cronin that the breaker had been knocked 

and stated that Nixon and Cronin finally went to the dumping 

end of the feeder and threw out three or four shovels of coal. 

At that point, Bizic asked that the tram cogs be jogged so that 

it was necessary to ask Nixon and Cronin to stand back while he 

reenergized or closed the circuit breaker on the side of the 

feeder. After Simms had lined up the cogs to Bizic's satisfaction, he pushed the breaker lever back down to deenergize the 

circuit breaker. By that time, Nixon and Cronin had gone over 

and had sat down against the rib of the closest pillar in the 

crosscut. Simms stated that he asked them twice again to resume shoveling; and that after one request, Nixon told Simms to 

get off his back. Simms said he told Nixon he was not on Nixon's 

back, but that the coal needed to be shoveled out of the feeder 

so that the next shift, which was purely a maintenance shift, 

could repair the conveyor chain. Simms claimed that he finally 

addressed Nixon and Cronin by name and told them he was giving 

them a direct order to shovel coal~ When they sti$1 did not respond, he told them that if they were not going to work, he 

would get them a ride out of the mine. Thereafter, Simms 

called Ludwig, the mine manager, and asked him to send transportation for two miners who refused to obey an order to shovel 

coal. After calling Ludwig, Simms returned to the feeder and 

told Nixon and Cronin that, as far as he was concerned, their 

time had stopped and that they could go to the dinner hole and 

wait for their transportation out of the mine. 

20. Simms' testimony also differs from Nixon's and Cronin's 

in that Simms claims DeMoss came around the dumping end and began shoveling coal when Nixon and Cronin failed to respond to 

Simms' order. Simms' statement also differs from Hart's testimony in that Simms claims he told Hart to shovel when Nixon and 

Cronin failed to do so, and that Hart did shovel, whereas Hart 

denies that he ever shoveled any coal at all. Hart also claims 

that DeMoss went with Bizic to the parts trailer and that no one 

was left around the feeder other than Hart, Simms, Nixon, and 

Cronin. Simms also denies that Nixon requested the Safety Committee, whereas Nixon and Hart both say Nixon requested the 

Safety Committee; and Hart even claims that Nixon asked for alternate work, which Nixon himself never claims to have requested. 

21. Ludwig received the phone call from Simms about 11:30 

or 11:40 p.m. Ludwig first asked Holskey to go in the mine by 

himself and bring Nixon and Cronin out, and then decided he 

would go along and get first-hand knowledge of the facts. On 

the way in, they came to a derailed supply car and transferred 

from a four-man rover to a five-man mule. The jack from the 

mule was being used to get the car back on the track, so Ludwig 

took the jack from the rover and put it in the mule. On the way 

back out of the mine, the batteries became so weak in the mule 

that Holskey had to call for another vehicle and the pumper 

1980 
brought .them the four-man rover they had used to commence their 

trip into the mine in the first place. Ludwig forgot to remove 

the jack from the mule and replace it in the rover. Therefore, 

when all four men arrived on the surface, Inspector Cornett was 

waiting for Nixon to come out of the mine with the respirable 

dust sampling device which Cornett had put on Nixon at the beginning of the shift. Nixon asked Cornett to inspect the rover, and 

Nixon told Cornett that there was no jack in the rover. Cornett 

found the brakes and the lights working satisfactorily, but as 

indicated in Finding No. 7, supra, there was no jack in the rover. 

22. Ludwig's testimony generally conforms with the other 

witnesses' testimony except that he denied that Holskey used 

profanity in ordering Nixon to get into the rover when they transferred from the mule to the rover on the way out of the mine. 

Also Ludwig stated that Baker remarked when he, Nixon, and Cronin 

were leaving the dinner hole to go to the mule, that Baker told 

Nixon and Cronin to go on to the surface with Ludwig and that the 

Union would see that they returned to work the next day with full 

pay. Ludwig also claims that even though he declined to argue 

with Baker as to whether Nixon and Cronin had actually shoveled 

any coal, that his refusal to argue that point was no reason for 

Baker to refrain from discussing a safety issue with him if one 

existed. Ludwig's recollection of Nixon's discussion with Cornett was that Nixon only told Cornett about the jack in the rover,. 

whereas Cornett claims that Nixon told him about other things, 

including the fact that he had been fired. 

23. Holskey's testimony is also in general agreement with 

that of the other witnesses, except that he denied that he used 

profanity in ordering Nixon to get into the rover and stated that 

it is contrary to Peabody's policy for management personnel to 

use profanity in giving orders to employees. Holskey had just 

come out of the mine from accompanying Inspector Cornett underground when Simms called, thereby requiring him to go immediately 

back underground. Neither Ludwig nor Holskey recall that Cornett 

was at the mine on June 23 to make a respirable dust inspection 

and neither recalls that Nixon was wearing a respirable dust collecting device, but Holskey said the mine was inspected so frequently that he could not recall the specifics as to the inspectors' visits to the mine. Holskey said that he, Ludwig, and 

Simms discussed the shoveling incident and each of them wrote a 

separate report at Goroncy's request, and that it was about 1:00 

a.m. when he and Simms left the mine to return home. Holskey and 

Simms are in the same car pool. 

In the arguments which the parties made prior to the rendering of the bench decision, Mr. McKown referred to some pertinent 

Commissio~ and court cases with respect to what is required before it can be said that a miner has properly raised his right 

to refuse to work because of a safety problem. 

1981 
One of the cases that Mr. McKown mentioned is Secretary on 

behalf of Michael J. Dunmire and James Estle v. Northern Coal 

Co., 4 FMSHRC 126 (1982). In that case the Commission stated 

that where reasonably possible, a miner should ordinarily give 

the operator an expression of the hazard at issue before leaving; 

and if not possible, as soon after leaving as reasonably possible. There should also be a good-faith belief as to the existence of the hazard. 

Mr. McKown has made that same observation about the requirements for raising a refusal to work because of a hazardous condition. And, as Mr. McKown also pointed out, if a miner does 

refuse to work, he should make the complaint about the unsafe 

condition so that the operator would be able to take action to 

correct the unsafe condition and protect other miners who are 

still working. 

I think that Mr. Zohn has stated in reply to Mr. McKown's 

argument that there were no other people who could have been 

assigned to shovel in this instance, but, it is a fact that 

Cronin testified that when he went into the dinner hole, Hart 

and Bizic were shoveling coal out of the feeder. That was also 

the testimony of Simms, except that Simms stated that DeMoss and 

Hart were shoveling coal out Qf the feeder. So, at least Cronin 

agreed with Simms to the extent that they both testified that 

Hart was shoveling coal out of the feeder. 

By Cronin's only having asked Simms if there was power on 

the feeder without expressly talking about the safety hazard, 

Simms failed to realize that a safety hazard was involved. 

Therefore, he also ordered Hart to shovel coal after Cronin and 

Nixon declined to do so, and Cronin agrees that Hart was shoveling coal at the time Cronin and Nixon left the feeder to go to 

the dinner hole to await transportation out of the mine. 

Now, as for the argument that all Cronin had to do was to 

ask Simms if the power was on, and at that point it became Simms' 

obligation to figure out what needed to be done and interpret 

that as a refusal to work because of a safety hazard, the evidence does not support an argument to that effect, because Simms 

believed that as long as a person is not actually working on an 

electrical circuit, it is only necessary to knock the circuit 

breaker on the side of the machine to make it entirely safe to 

work on such things as shoveling coal out of the feeder even if 

a person is inside the feeder doing the shoveling. 

The issue of whether power must be turned off at the power 

source before mechanical labor, as distinguished from electrical 

work, is performed on equipment was decided by the Commission in 

Kaiser Steel Corp., 3 FMSHRC 2463 (1981). In that case, the 

1982 
Commission held that it is a violation of section 75.509 for 

an operator to fail to deenergize equipment before mechanical 

work is done on it, even if the mechanical work involves only 

the changing of bits on a shearing wheel because, in that case, 

the wheel started running accidently even though the operator 

thought he had turned off the power. 

Therefore, the Commission has already rejected the same 

argument that Simms felt was appropriate in this case, namely, 

that knocking the breaker on the feeder was sufficient deenergization preparatory to having coal shoveled out of the feeder. 

Ludwig and Goroncy both agreed with Simms, that is, Ludwig believed that all a person had to do in the case of the feeder was 

to knock the breaker at the feeder and that he did not have to 

go back and pull the cathead out of the power center. The only 

time Goroncy differed from that view was that he thought that 

the cathead had to be pulled if a person intends to work right 

beside the pick breakers. 

As I understand the requirement for raising a safety issue 

in connection with a refusal to work, the burden is on the miner 

to establish that there is a safety matter to be considered, 

that the work he has been asked to do is dangerous, and that he 

is refusing to do the work because it is unreasonable for him to 

be asked to expose himself to the hazards involved. The burden 

is not on the section foreman to read the employee's mind and 

try to determine why the employee is refusing to work, especially 

as was true in this case, when the section foreman thinks that he 

has satisfied the miner's complaint about safety by knocking the 

breaker, assuming that the section foreman even comprehended that 

a safety issue had been raised in this case. 

The Commission expressly ruled in Kenneth E. Bush, 5 FMSHRC 

993 (1983), that if an operator listens to a complaint about 

safety and eliminates the hazards raised by the complaint, the 

work refusal loses protection under the Act. Mr. Zohn, on behalf 

of complainants, has argued that Simms' interpretation of the 

safety standards is incorrect. The Commission's ruling in the 

Kaiser Steel case, supra, shows that Mr. Zohn is correct in arguing that Simms did not properly understand the deenergization 

requirement which is necessary before mechanical work may be done 

on equipment powered by electricity. 

Nevertheless, the fact remains that if the miners, as was 

true in this case, are unable to explain to their section foreman what safety matter they have in mind and what it is that 

they fear and, if, as was also true in this case, the section 

foreman does all that he thinks is necessary to alleviate their 

fear or problem, then I think that the section foreman has done 

all that can be done to make their working conditions safe at 

that point. Unless the miners continue to express a fear that 

the machine still has not been sufficiently deenergized to make 

1983 
shoveling a safe activity, the section foreman does not know why 

the miners are continuing to refuse to shovel coal out of the 

feeder. 

Mr. Zohn is also correct in saying that the entire decision 

in this proceeding must be based on the credibility of the testimony given by the respective parties' witnesses. It strains my 

credulity to believe that Cronin and Nixon actually thought that 

they were supposed to crawl through about a foot or less of space 

between the side boards on the feeder and the mine roof to get 

down onto the actual conveyor belt very close to the pick breakers in order to shovel coal which was located closer to the dumping end of the feeder than it was to the pick breakers. 

It would have been practically impossible for complainants 

to have gotten into the feeder since Nixon is about 6 feet 1 inch 

tall and Cronin is about 5 feet 10 inches tall and quite stocky. 

In other words, the physical problems associated with complainants' getting into a position inside the feeder are such that I 

do not believe that Simms would order men to undertake such an 

unreasonable feat as getting inside the feeder so as to shovel 

coal out of the narrow opening between the top of the feeder and 

the mine roof. 

The testimony of Hart was that he based his certainty that 

Simms wanted Nixon and Cronin to get inside the feeder simply on 

a gesture which he claims Simms made, while Simms claims that 

his genture was to the back of the machine where the coal is 

dumped onto the feeder. 

One of the problems in all these cases is that miners have 

a tremendous amount of difficulty in communicating with each 

other. I believe that if they would talk over with their section 

foremen what their real problems are, and vice versa, that they 

would avoid a great many of the disputes which seem to occur. I 

cannot understand why Nixon and Cronin could not have asked Simms 

where he wanted them to position themselves in order to perform 

the shoveling of coal. Neither of them claims to have asked that 

question. The most that either one of them claims is that Cronin 

asked if the power was off and Nixon says he asked for a safety 

committee meeting. That is the extent of their conversation. 

The rest of the conversation consists of Simms repeating that he 

wanted them to get the coal shoveled out of the feeder. 

We have in the record the testimony of Baker, a roof bolter, 

who had come down to the dinner hole after he had finished doing 

some work at the face assigned to him by Simms.. He says that he 

saw both Nixon and Cronin shoveling coal out of the feeder. But 

Nixon's anrl Cronin's testimony confirms that when Baker saw them 

doing the shoveling, they were doing the only shoveling which 

Simms agreed that they had done the whole evening. Therefore, 

1984 
Baker's statement made to Ludwig that he had seen Nixon and 

Cronin shoveling coal out of the feeder while standing at the 

end of the feeder was based on the single instance when all witnesses agreed that Nixon and Cronin did shovel a little coal out 

of the feeder. 

Hart's testimony about the shoveling out of the feeder is 

flawed by the fact that he became involved in a lengthy discussion about the fact that Simms wanted the coal thrown into the 

crosscut so that the scoop could come down and pick it up even 

if the feeder could not be moved, whereas Simms made it perfectly 

clear that he did not care where the coal was thrown so long as 

it was taken out of the feeder so that the conveyor chain could 

be repaired. I believe that Hart's testimony has very low credibility to it in some other respects because Hart claims that 

DeMoss was not at the feeder because he had gone to the parts 

wagon with Bizic. Yet Bizic stated that he remained at the parts 

wagon for an entire hour looking for a connecting link. Simms 

testified convincingly that there would have been no need for 

DeMoss to go to the par.ts trailer with Bizic to bring back one 

little connecting link for a chain and that he recalls DeMoss 

shoveling at the feeder. Even if DeMoss did leave for a short 

time, it is difficult for me to believe that he would have stood 

for an hour by Bizic who was simply looking for a connecting link. 

Hart also testified that Nixon not only asked for the safety 

committee, but also requested alternate work, but Nixon did not 

claim that he ever asked for alternate work. Therefore, it appears to me that Hart simply decided to testify on behalf of the 

two complainants and that his preparation for appearance as a 

supporting witness was not well organized. 

Cronin agreed, when he was being cross-examined by 

Mr. McKown, that at no time did he ever tell Simms or Ludwig or 

Goroncy or any boss that he thought it was unsafe to shovel coal 

out of the feeder with only the circuit breaker on the feeder 

thrown or in an off position. As Mr. McKown has argued, it is 

not convincing to believe that two men who are being taken out 

of the mine to be fired would have the courage to further irritate the very bosses who are going to discharge them by asking 

for safety glasses, asking to inspect the rover, and going up to 

an inspector right in their bosses' presence to report the lack 

of a jack on the rover, but would not have the courage to tell 

their section foreman that it was too hazardous to shovel coal 

out of a feeder without having the cathead disconnected at the 

main power source. Their requests for safety glasses, inspection 

of the rover, etc., would have been things they would have been 

happy to forego mentioning, in my opinion, if they had actually 

been afraid of making complaints to their supervisors. 

In short, I believe that neither Nixon nor Cronin had any 

safety thoughts in mind when they were refusing to shovel coal, 

1985" 
or they would have brought those safety concerns to their supervisors' attention when they were threatened with suspension. 

Cronin discussed several times during his cross-examination 

that he believed that it was possible for a feeder to start running, even though the breaker switch on the feeder has been 

thrown to the off position, because moisture and dirt may collect 

in the panel box and cause a short to occur which will reenergize 

the machine's motor. Yet, in that very testimony, Cronin stated 

that he had learhed about such things at the arbitration hearing. 

Since Cronin is basing his knowledge of that kind of danger on 

testimony given at an arbitration hearing which was held in July, 

his claim that he was objecting to shoveling coal in June because 

of his fear of getting a shock, even when the breaker switch was 

in the off position, is not a credible story and fails to show 

that he would have had such safety concerns when he refused to 

shovel coal on June 23 before the arbitration hearing had ever 

been held. 

Mr. Zohn has emphasized that Simms is not a reliable witness 

because, in filling out his application for employment with Peabody, he stated in the application that he had 1 year of prior 

experience as a coal miner, but stated in this proceeding that he 

did not know how the figure "l" got on the form as he did not recall putting it there and had no prior experience as a coal miner. 

On that same application, Simms also wrote that he had had 3 years 

of high school. When I asked him about that, he said that it was 

attendance at a mission school of some sort and that it was not 

high school training at all, but he had nevertheless entered that 

schooling in a blank on the form which was labeled "high school" 

to indicate that only high school training was supposed to be 

listed in that space. We have to keep in mind that Simms was not 

able to avail himself of a great deal of formal education. When 

he is filling out an application, he is likely to make mistakes 

of a clerical nature. Such mistakes do not necessarily mean that 

everything he says is subject to doubt. 

As far as credibility goes, Cronin assured us several times 

that he had never had any accidents in the 11 years that he has 

worked in the coal mines. He even stated that he has developed 

a sixth sense so that if he just gets in a dangerous situation, 

he will immediately feel that he is in danger. Yet, Mr. McKown 

introduced as Exhibits E and F two accident reports showing that 

Cronin had his thumb mashed by a cinder block in one instance 

and, in another instance, had his hand wrenched or strained by a 

steering wheel on a Kersey motor he was driving in the mine. Of 

course, it is possible for witnesses to forget things and not 

intentionally be trying to misstate the truth. I think that some 

incidents just have to be accepted as events which people do not 

remember. Witnesses' failure to remember does not necessarily 

mean that everything they say should be thrown out as a fabrication. 

1986 
In Frederick G. Bradley, 4 FMSHRC 982 (1982), the Commission 

pointed out that it is not an administrative law judge's function 

to pass upon the wisdom or fairness of an operator's action in 

disciplining an employee, but rather it is his function to determine if the operator's claims are credible, and if those reasons 

would cause an operator to act as he did. No one in my position 

enjoys seeing a miner lose his job or even be suspended for 5 

days, but the only ground that Nixon and Cronin have in this case 

for arguing that there was a violation of section lOS(c) (1) of 

the Act is that they were ordered to do an unsafe act and that 

they had a right to refuse to do that act because of the safety 

issues involved. 

But, as I pointed out with respect to the cases mentioned by 

Mr. McKown, and one or two others that I referred to above, the 

Commission has left the burden on the complainants to show that 

they did have a reasonable basis to raise a safety issue and that 

it was done in such a fashion that the operator knew what he was 

required to do in order to satisfy that complaint. I cannot find 

on the basis of the record in this proceeding that Peabody was 

properly given a reason to know why Nixon and Cronin refused to 

shovel the coal from_ the dumping end of the feeder. It appears 

to me that there is sufficient credibility to Simms' explanation 

of what happened to show that he believed he simply had before 

him two miners who had refused to carry out a reasonable work 

order. Simms says that he did not intend to do any more than 

just show them that he could not allow that kind of insubordinate 

action. Simms said that he also regretted that it was the decision of management above his level to suspend the men with intent 

to discharge them, but he felt that he had to take the action 

which he did in order to maintain discipline on his section. 

It appears to me that Simms made a credible defense of what 

he did. It further seems to me that Goroncy, Holskey, and Ludwig 

also made a credible defense of the action they took. Therefore, 

I find that there was no violation of section lOS(c) (1) of the 

Act because the evidence fails to support complainants' claim 

that they refused to shovel coal out of the feeder because such 

shoveling would have exposed them to hazardous conditions. 

WHEREFORE, for the reasons hereinbefore given, it is 

ordered: 

The discrimination complaint filed on October 19, 1982, in 

Docket No. LAKE 83-9-D is dismissed. 

R~t~·ft~1/- Administrative Law Judge 

1987 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF TENNIS MAYNARD, JR.,: 

Complainant 

v. 

DIAMOND P. COAL COMPANY, INC., 

Respondent 

NOV 251983 

DISCRIMINATION PROCEEDING 

Docket No. KENT 82-199-D 

No. 1 Surface Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This is a discrimination proceeding initiated by the 

complainant against the respondent pursuant to Section 105(c) 

of the Federal Mine Safety and Health Act of 1977, charging 

the respondent with unlawful discrimination against 

Mr. Tennis Maynard, Jr., for exercising certain rights 

afforded him under the Act. The matter was scheduled for 

hearing in Paintsville, Kentucky, September 27, 1983, but 

the matter was continued when the parties advised me of a 

proposed settlement disposition of the dispute. 

On November 9, 1983, the parties filed a Joint Stipulation 

and Settlement Agreement proposing to dispose of this matter. 

Included as part of the negotiated settlement is an agreement 

by the respondent or its subsidiaries to reinstate Mr. Maynard 

and to pay him certain back wages. In addition, respondent 

agrees to consider him for all job openings in a truck driver's 

position or in positions requiring lesser skills, and shall 

consider him for layoff, on the basis of his original hire 

date of November 20, 1981. 

Respondent and its subsidiaries agree that they will 

not discriminate against.Mr. Maynard in violation of Section lOS(c) 

of the Act. Further, the parties agree that if Mr. Maynard 

voluntarily quits his employment with the corJpanies or is 

1988 
terminated by the companies for reasons which are not 

discriminatory under § lOS(c) of the Act, Maynard shall be 

treated for purposes of rehire in the same manner as other 

former employees who voluntarily quit or were terminated for 

reasons not discriminatory under§ 105(c) of the Act, as the 

case may be. 

Conclusion 

After careful review and consideration of the settlement 

terms and conditions executed by the parties in this proceeding, 

including Mr. Maynard, I conclude and find that it reflects · 

a reasonable resolution of the complaint filed by MSHA on 

Mr. Maynard's behalf. Since it seems clear to me that all 

parties are in accord with the agreed upon disposition of 

the complaint, I see no reason why it should not be approved. 

ORDER 

The proposed settlement IS APPROVED. Respondent IS ORDERED 

AND DIRECTED to fully comply forthwith with the terms of the 

agreement. Upon full and complete compliance with the terms 

of the agreement, this matter is dismissed. 

Administrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., U.S. Department of Labor, Office of 

the Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

D. Patton Pelfrey, and Charles E. Allen, III, Esqs., Brown, 

Todd & Heyburn, 1600 Citizens Plaza, Louisville, KY 40202 

(Certified Mail) 

/slk 

1989 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MICHAEL D. YOUNG, 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. KENT 83-126-D 

v. 

MSHA Case No. BARB CD-83-08 

TERRY GLEN COAL COMPANY, 

Respondent Barn Branch Mine 

Appearances: 

Before: 

DECISION 

Michael D. Young, Grundy, Virginia, pro se; 

Randall Scott May, Esq., Craft, Barret &!faynes, 

Hazard, Kentucky, for Respondent. 

Judge Steffey 

Pursuant to an order consolidating issues and providing for 

hearing issued September 8, 1983, as amended on September 26, 

1983, a hearing in the above-entitled proceeding was held on 

November 1, 2, and 3, 1983, in Jonesville, Virginia, under section 105 (c) (3), 30 U. S.C. § 815 (c) (3), of the Federal Mine Safety 

and Health Act of 1977. 

The complaint was timely filed on February 7, 1983, under 

section 105(c) (3) of the Act after complainant had received a 

letter dated January 11, 1983, from the Mine Safety and Health 

Administration advising him that its investigation of his complaint had failed to show that a violation of section 105(c) (1) 

of the Act had occurred. The complaint alleged that complainant 

was discharged by respondent on November 19, 1982, in violation 

of section 105(c) (1), because complainant had complained about 

the condition of the conveyor belts which were used by respondent 

to transport miners into its mine. The complaint also alleged 

that respondent wished to discharge complainant because respondent feared that he might report the unsafe conveyor belts to MSHA. 

After the parties had completed their presentations of evidence and had made their concluding arguments, I rendered the 

bench decision which is reproduced below (Transcript dated November 3, 1983, pages 3 through 28): 

1990 
The issues in this case are whether there was a violation 

of section lOS(c) (1) of the Federal Mine Safety and Health Act 

of 1977 and, if so, whether Mr. Young, the complainant, is entitled to the relief he seeks under section lOS(c) (3) of the 

Act. 

Findings of Fact 

Based on the demeanor of the witnesses and the credible 

evidence in this proceeding, the following findings of fact are 

made: · 

1. The complainant in this proceeding, Michael David 

Young, is 27 years of age. He attended Grundy Senior High 

School up to the eleventh grade, at which time he quit and 

joined the United States Navy. Before leaving high school, he 

had taken a 1-year trade school course in welding. While he 

was in the Navy, he received a certificate dated July 19, 1974, 

showing that he had completed a course in basic electricity and 

electronics (Exh. 4). He also holds certificates of competency 

issued by the Virginia Board of Examiners certifying his ability 

to act as a certified underground shot firer and an electrical 

repairman (Exh. Nos. 2 and 3). Additionally, he has currently 

dated cards issued by MSHA showing he is a certified underground 

electrician, certified surface electrician, and c~rtified underground and surface high voltage electrician (Exh. Nos. 6, 7, and 

8). Young has 5-1/2 years of mining experience of which 4-1/2 

years were obtained while he was performing maintenance work on 

underground and surface electrical equipment. Young is currently working as an electrical repairman for Island Creek Coal Company and is attending Southwest Virginia Community College 

studying electronics technology. 

2. Young was working for Island Creek Coal Company in 1982, 

but was laid off in September 1982 when Island Creek found it 

necessary to reduce its work force by 800 people. Island Creek's 

personnel manager received an inquiry from Sidney Fee about an 

electrical repairman and recommended Young. Thereafter, Young 

was interviewed by Sidney Fee, who works as general manager for 

Terry Glen Coal Company. Terry Glen's Barn Branch Mine is located near Crummies, Kentucky. Young was then living in Buchanan 

County, Virginia, with his wife and one child. Fee hired Young 

for a· 30-day probationary period. If Young's work proved to be 

satisfactory, Young planned to move his family about 100 miles 

to the Crummies, Kentucky, area. During the 30-day probationary 

period, Young was not a member of the Southern Labor Union, 

which is the miners' representative at the Barn Branch Mine. 

At the end of the 30-day period, if Young's work had proven to 

be satisfactory, he would either have been given a position as 

a salaried or management employee, or a position as a wage employee. It was understood that Young would join the Southern 

Labor Union if he became a wage employee. 

1991 
3. During the interview by Sidney Fee, before Young was 

hired as a probationary employee, Fee asked Young if he had had 

experience repairing a Wilcox continuous-mining machine. Fee 

understood Young to say that he had worked on a Wilcox Model 

21 continuous miner for about 2 weeks, whereas Young believes 

he explained to Fee that he had had enough experience in repairing Joy continuous-mining machines and other types of equipment 

to enable him, without difficulty, to adapt to repairing what 

Young referred to as the relatively simple components of a Wilcox continuous miner. As a matter of fact, Young had had no 

experience at all in repairing Wilcox continuous-mining machines 

when he began working for Terry Glen on November 10, 1982. 

4. In order to save Young the time and expense of the 3-

hour one-way drive from Terry Glen's mine to Buchanan County, 

Virginia, Fee provided Young with living quarters in a building 

owned by Terry Glen. Young was not charged for those living 

quarters. 

5. Young began working for Terry Glen on Wednesday, November 10, 1982, and was discharged on Friday, November 19, 1982. 

Since Young did not work on Saturday or Sunday, he was employed 

by Terry Glen for only 8 working days. Young performed some 

work on the surface of the mine on Wednesday and Thursday, 

November 10 and 11, consisting of cutting off old bits and welding new bits on some augers for a Wilcox continuous-mining 

machine. Young's first trip underground occurred on Friday, 

November 12, 1982. He was shown how to ride the conveyor belt 

into the mine on that day and was given an opportunity to familiarize himself with the operation of a Series 21 Wilcox continuous-mining machine. Young had set timbers in the vicinity of 

a Series 20 Wilcox continuous-mining machine while employed by 

another coal company, but he did not perform any work on the 

Series 20 machine. There are no significant differences in the 

way a Series 20 operates as compared with the Series 21 used in 

Terry Glen's mine. 

6. On Monday, November 15, 1982, Young went underground 

with Johnny Mack White, a certified maintenance foreman, to install some shims on a motor which had burned out on a Wilcox 

continuous miner. The new motor had been installed, except for 

inserting the shims behind the motor, and all work replacing 

the motor had been performed by a repairman named Robert Housley 

who worked from 11:45 p.m. to 7:45 a.m. Housley showed Young 

where the shims had to be placed and went on out of the mine. 

Housley did not remain to assist in installing the shims because 

Housley had been told that Young was an experienced repairman. 

Young had never installed a new motor on a Wilcox continuousmining mac;.hine. Therefore, the shims were actually installed by 

White, but Young claimed credit for having thought of loosening 

the bolts so that the shims could be inserted. Housley claimed, 

1992 
however, that he had deliberately left the motor loose so that 

the shims could be inserted without loosening any bolts. 

7. On Tuesday, November 16, 1982, about 1:30 p.rn., Young 

was asked by the mine superintendent, Steven Teshon, to go underground for the purpose of trouble shooting, or determining 

whether another motor had burned out on the Wilcox continuousrnining machine. Coal had been corning out on the belts which 

made it impracticable to ride into the mine on the belts, so 

Young rode into the mine on a scoop to determine what was wrong 

with the other motor on the Wilcox miner. Young was given an 

ohmmeter by Teshon before going underground, but Young did not 

take the ohmmeter to the continuous-mining machine and did some 

taping of lead wires and some brief energizing or "bumping" of 

the motor, which caused the circuit breaker to trip out. Young 

spent about 40 minutes to determine that the motor was burned 

out and needed replacement. The continuous-mining machine's 

operator, Wilburn Hale, and a roof bolter, Randy Evans, were 

present while Young was doing the trouble shooting, and both of 

them believed that Young should have been able to use an ohmmeter and determine in just a few minutes that the motor was 

burned out, as they had already assumed on the basis of their 

experience in working around and operating a Wilcox continuousrnining machine. 

8. On Wednesday, November 17, 1982, Young went into the 

mine with Charlie Bumgardner (now deceased) and Johnny Mack White 

to complete installation of the second motor on the Wilcox continuous-mining machine, but Young's light battery became caught 

on a portion of the No. 2 belt conveyor which caused the light 

to go off. By the time Young had gone back out of the mine to 

obtain a replacement light and had started back to the face area, 

he met White returning to the surface. Young also turned around 

and went back to the surface because White advised him that the 

work of installing the second motor had been completed. 

9. While Young was on the surface obtaining a replacement 

light on Wednesday, November 17, as explained in Finding No. 8 

above, he was asked by Teshon to crawl along the No. 1 belt and 

determine what had caused some belt structures, being transported 

into the mine, to become stuck on the No. 1 belt, which only 

extends about four breaks into the mine before it terminates at 

the No. 2 belthead. The No. 1 belt had been stopped by an employee named Charles Hatmaker when Hatmaker realized that the 

belt structures had been caught between his location at the No. 

2 belt drive and the mine surface. Hatrnaker's assignment at that 

time was the transfer of belt structures from the No. 1 belt to 

the No. 2 belt. Another employee named William Caldwell was 

helping Hatmaker move belt structures from the No. 1 to the No. 2 

belt, and Caldwell was asked to crawl toward the outside or surface of the mine while Young was crawling in the opposite direction from the surface. Caldwell came to the stuck belt structures 

1993 
before Young. ·After Young had joined Caldwell at the point of 

obstruction, they succeeded in releasing the stuck belt structures, 

and both miners then crawled back into the mine along the No. 1 

belt toward the No. 2 belthead with Young preceding Caldwell into 

the mine. 

10. Young was welding augers for the Wilcox continuous miner 

on the surface on Thursday, November 18, 1982, when the mine 

superintendent, Teshon, advised Young that he was going to terminate Young's probationary position at the end of the shift on 

the next day, November 19, 1982, because Young was not competent 

in performing repairs on the Wilcox continuous-mining machine. 

11. On Friday, November 19, 1982, Young returned to the mine 

before 7 a.m. and engaged in some discussions with other miners 

about the fact that he believed Teshon, the mine superintendent, 

was actually discharging him because he criticized the safety of 

riding in and out of the mine on the conveyor belts. None of 

the other miners agreed with Young that riding the belts exposed 

them to any hazard. When Teshon arrived at the mine, Young asked 

Teshon if he was still fired. When Teshon answered that question 

in the affirmative, Young stated that Teshon's real reason for 

discharging him was for his having made complaints about the 

safety features of the belt. 

12. Teshon denied that he had ever said anything on Thursday 

when he told Young he was being discharged, that he was afraid 

Young might get hurt on the belt. Teshon agrees that he refused 

to allow Young to use the phone to call MSHA to request a special 

inspection of the belt conveyors, because of the threats Young 

was making, and that he ordered Young to leave mine property. 

13. After Young left mine property, he drove to the office 

of Terry Glen's general manager, Sidney Fee, at Crummies, Kentucky. Young told Fee that Teshon had discharged him because 

Teshon was afraid Young would get hurt on the belts. When Fee 

advised Young that Teshon had given Fee his reasons for discharging Young and had stated that those reasons appeared to be 

valid so that Fee was supporting the discharge, Young became 

angry and said he would cause Fee and Fee's son trouble. Fee 

told Young to leave his son, Wayne, who is the mine's safety 

director, out of the discussion. 

14. When Young was unsuccessful in getting Fee to reverse 

Teshon's discharge, Young proceeded to Harlan, Kentucky, and requested under section 103(g) of the Act that MSHA make a special 

inspection of the belt conveyors at Terry Glen's Barn Branch Mine, 

especially from the standpoint of their use as a means of transporting miners in and out of the mine. 

1994 
15. MSHA sent Inspector Lester Reed and a trainee named 

Lawrence Rigney to make a special investigation in response to 

Young's request, and they rode the belts into the mine and wrote 

no citations or orders with respect to the use of the belts for 

haulage of miners. They inspected the pull cords and other features of the belts, but cited no violations of the regulations. 

While they were there, they inspected other areas in the mine 

and wrote five citations for violations of 30 C.F.R. §§ 75.400, 

75.503, 75.1722, 75.1101-1, and 75.514. Only the alleged violation of section 75.1722 was considered to be a significant and 

substantial violation, as that term has been defined by the Commission in National Gypsum Company, 3 FMSHRC 822 (1981). 

16. A Kentucky State Inspector named James E. Gilbert had 

been inspecting the Barn Branch Mine for about 5 years, including the short time during which Young worked for Terry Glen, and 

he has not written or seen violations cited for clearances of 

the belt for purposes of transporting miners. He has ridden 

into the mine on the belt. Gilbert testified that the required 

clearance of 18 inches between the top of the belt and the mine 

roof is the same under both Kentucky and Federal regulations. 

17. Young contends that he had made complaints to management about the unsafe aspects of riding the conveyor belts into 

the mine. The unsafe conditions which Young claims existed were: 

(1) there was less than the required 18 inches of space between 

the top of the belt and the mine roof, (2) there was a practice 

at the mine of having the miners jump from one belt to another 

without stopping the belt at the time of the transfer, or even 

having the miners get off one belt before jumping on to the next 

belt, and (3) there were inoperable pull cords running along the 

conveyor belts. 

18. Without exception, all the witnesses called by Young 

and Terry Glen's counsel stated that the clearance between the 

top of the belt and mine roof was 18 inches or more, that they 

did not jump from one belt to another without getting off one 

flight before getting on another flight, and that any inoperable 

pull cords were immediately repaired because their failure to 

work could be corrected simply by reattaching them to the toggle 

switches to which they are attached until a rock or some other 

object hits them and knocks them loose so as to make reattachment necessary. 

Consideration of Young's Arguments 

Young was given several months, on two different occasions, 

to obtain an attorney to represent him in this proceeding. He 

was ultimately unable to secure legal representation, although 

it appeared for a short time on two different occasions that he 

had been successful in retaining a lawyer to represent him. 

1995 
Young, therefore, had to represent himself at the hearing 

and succeeded very well in presenting his case. His primary 

argument is that he made complaints to management about the 

hazardous nature of the practice of having miners ride to and 

from the working faces on conveyor belts. Young contends, 

therefore, that he was engaged in a protected activity under 

section 105(c) (1) of the Act which provides as follows: 

(c) (1) No person shall discharge or in any 

manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory 

rights of any miner, representative of miners or 

applicant for employment in any coal or other mine 

subject to this Act because such miner, representative of miners or applicant for employment has 

filed or made a 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 

otber mine, or because such miner, representative 

of miners or applicant for employment is the subject of medical evaluations and potential transfer 

under a standard published pursuant to section 101 

or because such miner, represent~tive of miners or 

applicant for employment has instituted or caused 

to be instituted any proceeding under or related 

to this Act or has testified or is about to testify in any such proceeding, or because of the exercise by such miner, representative of miners or 

applicant for employment on behalf of himself or 

others of any statutory right afforded by this Act. 

The test for determining whether a complainant has shown 

a violation of section 105(c) (1) of the Act was given by the 

Commission in Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 

(1980), rev'd on other grounds sub nom., Consolidation Coal Co. 

v. Ray Marshall, 663 F.2d 1211 (3d Cir. 1981). Some of the 

Commission's language pertaining to the burden of proof was 

temporarily reversed in Wayne Boich d/b/a W. B. Coal Co. v. 

F. M. S. H. R. C., 704 F.2d 275 (6th Cir. 1983), but thereafter the court vacated its decision reported at 704 F.2d 275, 

except for its rulings as to back-pay issues, in Wayne Boich 

d/b/a W. B. Coal Co. v. F. M. S. H. R. C., F.2d , Sixth 

Circuit No. 81-3186, October 14, 1983, leaving intact the Commission's rationale regarding the requirements for proving a 

violation of section 105(c) (1) of the Act. The test set forth 

by the Commission in Pasula reads as follows (2 FMSHRC at 2799-

2800): 

lHH6 
We hold that the complainant has established a 

prima facie case of a violation of section 105(c) (1) 

if a preponderance of the evidence proves (1) that 

he engaged in a protected activity, and (2) that the 

adverse action was motivated in any part by the protected activity. On these issues, the complainant 

must bear the ultimate burden of persuasion. The employer may affirmatively defend, however, by proving 

by a preponderance of all the evidence that, although 

part of his motive was unlawful, (1) he was also motivated by the miner's unprotected activities, and 

(2) that he would have taken adverse action against 

the miner in any event for the unprotected activities alone. On these issues, the employer must bear 

the ultimate burden of persuasion. It is not sufficient for the employer to show that the miner deserved to have been fired for engaging in the unprotected activity~ if the unprotected conduct did not 

originally concern the employer enough to have resulted in the same adverse action, we will not consider it. The employer must show that he did in fact 

consider the employee deserving of discipline for engaging in the unprotected activity alone and that he 

would have disciplined him in any event. [Emphasis 

in original.] · 

Johnny Mack White was Young's immediate supervisor and he 

said that Young may have said something to him about not wanting 

to ride the No. 1 belt, and about preferring to crawl the initial 

distance of about four breaks, or approximately 300 feet, that 

the No. 1 belt extended into the mine. White, however, stated 

that Young had not mentioned to him that the pull cords for 

stopping the belts failed to work and White denied that Young 

had ever mentioned to him anything about measuring the clearance 

between the belts and the mine roof. White additionally denied 

that he had reported to any of his superiors any alleged complaints made to him by Young. 

Charles Hatmaker was not Young's supervisor, but was just 

another miner. He thinks he recalls having heard Young say that 

he was not going to ride the No. 1 belt any more. While one 

might conclude that Young's expression of fear of riding the No. 

1 belt is the same as making a safety complaint, the attitude of 

White and Hatmaker, as to Young's fear of riding the belt, was 

considered by them to be more like an expression of a dislike 

for working in low coal, for example, than an expression of a 

safety complaint. 

Young claimed to have found a sympathetic response to his 

alleged safety complaints when he discussed them with Luther 

Green III who was the safety man elected by the Southern Labor 

Union. Green is the only person who has ever reported having 

1997 
had an accident while riding the belt, but Green said that his 

injury was the result of his own negligence~ because he was on 

his knees while riding on the belt and looked behind him to say 

something to the miner behind him. When Green turned back to 

face the direction the belt was traveling, he was hit in the 

face and received a cut on the bridge of his nose which required 

a few stitches. Green missed the rest of that day at work because of the accident and doesn't consider the accident something that shows an unsafe belt conveyor. 

Green, in the capacity of safety man, had not received any 

complaints from any of the miners as to lack of safety for riding the belts or for any other type of safety problem. Green 

said that on the Friday following the Thursday when Young was 

informed that he had been discharged, that Young angrily said 

to him, "You call yourself a safety director letting men ride 

these belts?" Green said he felt Young was so upset and argumentative at that time, that he just walked away to get his 

knee pads and made no attempt to answer Young's allegation. 

Randy Evans testified that he told Young that Green was 

the union safety man on Friday morning, when Young mentioned 

the belts to him, after Young had been discharged. Evans also 

stated that the Barn Branch Mine was the safest mine in which 

he had ever worked. Moreover, Evans stated that Young told him 

that the real reason Teshon fired Young was that Teshon was 

afraid that Young would get Teshon's job. 

Young contended there was a sign outside the mine to the 

effect that the belts were not intended to be used for mantrip 

purposes. Fee, the general manager, said the sign was old and 

applied at one time when the belt structures and crossbars in 

the first part of the belt entry did fail to provide 18 inches 

of clearance. But Fee says the crossbars near the surface were 

gradually removed until none exist there now and that a low profile 9-inch belt structure was also installed. Teshon additionally stated that they shot out some slag in the mine roof to 

open up the No. 2 belt so that miners could ride the belts all 

the way from the mine entrance to the face area, as shown on 

Exhibit A. 

Wilburn Hale was the operator of the Wilcox continuousmining machine and had run a Wilcox miner for a total of 13 

years. Hale said he told the section foreman the motor in the 

Wilcox miner was burned out and needed replacing. Young was 

called to work on the machine and Hale was surprised at how 

little Young knew about checking motors and was especially critical of Young's failure to bring an ohmmeter to test the motor. 

Robert Housley was a repairman at the Barn Branch Mine and 

was a certified foreman. He performed a preshift of all belt 

1998 
flights on the night of November 17 during his shift, which 

lasts from 11:45 p.m. to 7:45 a.m. He checked all pull cords 

and found them to be operative. Housley's testimony rebuts or 

seriously erodes Young's claim that he tried to stop the No. 2 

belt on November 17 by pulling the control cord running along 

the No. 2 beltline, but that the cord failed to stop the belt. 

Sidney Wayne Fee was the safety director for the Barn 

Branch Mine. On one occasion, while Young was welding on the 

surface, Wayne Fee observed him and complimented Young for wearing safety glasses. Young agrees that he received a compliment, 

but Young does not even claim to have taken advantage of that 

opportunity to express his safety concerns about riding the belt. 

My review of the evidence shows that at most, two miners 

recall that Young expressed a fear of riding the No. 1 belt and 

expressed a preference for crawling the 250- or 300-foot length 

of that belt, rather than riding it, because of his belief that 

there was inadequate clearance between that belt and some crossbars which still existed along the No. 1 belt at that time. 

Therefore, to the extent that Young expressed a fear of 

riding the No. 1 belt, it may be said that he was engaged in a 

protected activity and that he may not be discharged for such 

activity if his discharge was motivated in any way by an expression of fear of riding the No. 1 belt. 

When it is considered that the MSHA inspectors found no 

violations of the mandatory safety and health standards pertaining to transportation of miners on the belts when they made a 

special investigation at Young's request, it is unlikely that 

Teshon was motivated by Young's fear of riding the No. 1 belt 

when Teshon told Young he was being discharged for lack of competence to repair the Wilcox miner, especially since that was 

the primary reason Fee had hired Young in the first place. 

Credibility 

Young, of course, claims that Teshon first told him on 

Thursday he was being discharged because Teshon was afraid he 

would get hurt riding the belt. Young says that when he told 

Teshon on Friday morning that Teshon could not fire him for 

that reason, Teshon changed the basis for Young's discharge to 

be a claim that Young was not competent to repair the Wilcox 

continuous-mining machine being used at the mine. 

Young claims that he could not find anyone to corroborate 

his account of the discharge, because all the miners are either 

afraid to ~ell what actually happened or they have family relationships which impede their willingness to tell what happened, 

such as the fact that Hatmaker is married to the general manager's 

daughter, and that the safety director is the general manageris 

son. 

1999 
It is true that witnesses' economic dependency on their 

employer and kinship are factors to be exam{ned when one is 

trying to evaluate credibility. Those relationships, however, 

do not seem to have had an adverse impact upon credibility in 

this proceeding because Hatmaker agreed that Young had expressed 

to him a dislike for riding the No. 1 belt and Wayne Fee stated 

that he had complimented Young for wearing safety glasses. Thus, 

the two witnesses with the closest kinship ties to the general 

manager gave favorable testimony in Young's behalf. 

It is also true that all the witnesses, except the State 

inspector, who testified in this proceeding, still work for 

Terry Glen, but it must be kept in mind that Young only worked 

for Terry Glen for 8 days, excluding Saturday and Sunday, and 

the miners necessarily had little contact with Young and were 

not acquainted with him well enough to have heard his alleged 

views as to safety discussed in any detail. Therefore, it is 

understandable that they believed Young was opinionated and 

that they were aware of few facts which supported his contentions to the effect that his discharge was motivated because 

of his having made complaints about the hazards associated with 

riding the belt conveyors. 

Moreover, Young's own credibility was eroded by the inconsistent statements he made and the claims he made which were 

rebutted or shown to be false. Young had a tendency, for example, to state whatever best supported his claims. On page two 

of the complaint he filed with MSHA, which is Exhibit 9 in this 

proceeding, he stated that the coal height was 30 to 40 inches 

in the mine. But at the hearing, he reduced the height to 27 

inches. 

He stated on page two of the complaint that he noticed the 

hazards of riding the belt when he first went underground on 

November 12, 1982, but he stated that he needed the job, so he 

avoided saying anything to Teshon at that time when Teshon 

stated to him that it was necessary to be able to ride the belt 

in order to work in the mines in that part of the country. 

Since Young only worked 8 days, he undoubtedly continued to need 

the job as much on the day he was discharged as he needed it on 

November 12 when he declined to make comments about safety. 

Therefore, it is more likely than not that Young's complaints 

about safety were all made after his discharge, rather than before, as most of the miners testified. 

On page four of his complaint, Young stated that the 

clearance between the top of the No. 1 belt and the mine roof 

was 10 to 12 inches. At the hearing, he claimed to have actually measured the clearance and found it to be from 10 to 19 

inches, but Caldwell testified that he was close behind Young 

2000 
at the very time Young claims to have made the measurements and 

Caldwell did not see him take any measurements. 

Young was inconsistent at the hearing about the time he 

had finished working in the mine on November 17, the day he 

helped remove belt structures from the beltline, saying first 

that he was back outside at 8:30 a.m. after getting his battery 

torn off and thereafter saying that it might have been 10:30 or 

11 a.m. when he got outside. 

Although Young did not challenge Teshon's claim that Teshon 

had given Young an ohmmeter to test the motor on November 16 on 

the Wilcox continuous-mining machine, Young first said he was 

not sure he had an ohmmeter and subsequently said that the ohmmeter gave him inaccurate readings and could not be relied on. 

On the other hand, all the miners working with him said that he 

did not use one at all, and they were positive he did not have 

one. In his deposition, Young stated on page 43 that the pull 

cord to stop the belt was on the right side when one is going 

into the mine, but at the hearing, he said the cord was on the 

left side when one was going into the mine. In view of the fact 

that Young made inconsistent statements about what happened while 

he worked at the Barn Branch Mine, I find that his credibility 

is not entitled to be given as much weight as that of Teshon 

who discharged him because Teshon's testimony is consistent in 

the details he gave. 

I find that the real reason for Young's discharge was Teshon's 

belief that Young was not competent to repair the Wilcox continuous-mining machine. It is a fact that both Fee and Teshon believed that Young had misled them at the initial interview by 

telling them that he would have no-trouble in adapting to the 

repair of a Wilcox continuous-mining machine, as he had worked 

around them and had been associated with them. Young admitted 

that he was somewhat desperate for a job. Therefore, I believe 

Fee's and Teshon's claim that Young misled them as to his competency to repair a Wilcox continuous-mining machine is entitled 

to more consideration than Young's claim that he did not cause 

them to think he knew more about the Wilcox than he actually did. 

For all of the foregoing reasons, I believe that Young engaged in almost no protected activity under the Act while employed by Terry Glen; that even if he did engage in some protected 

activity, his discharge was in no way motivated by that protected 

activity; and that the real reason for his discharge was that 

given by Teshon, namely, that Young did not have the competency 

needed to repair the Wilcox continuous-mining machine useQ by 

Terry Glen at the Barn Branch Mine. 

2001 
WHEREFORE, it is ordered: 

The discrimination complaint filed on February 7, 1983, in 

Docket No. KENT 83-126-D is dismissed. 

Distribution: 

~ ~- scJ7o/A 

Administrative 

Richard C. Steffey 

Law Judge 

~ 

Mr. Michael D. Young, Route 1, Box 267, Grundy, VA 24614 

(Certified Mail) 

Randall Scott May, Esq., Craft, Barret & Haynes, Post Office 

Drawer 1017, Hazard, KY 41701 (Certified Mail) 

yh 

2002 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 2204i 

BILLY RAY HARNESS, 

Contestant 

DISCRIMINATION PROCEEDING 

v. Docket No. SE 83-52-D 

ROYAL JELLICO COAL CO., INC., 

·Respondent 

MSHA Case No. BARB 

CD 83-22 

Appearances: 

Before: 

ORDER OF DISMISSAL 

Art Roberts, Jr., Esq., Knoxville, Tennessee, 

for Contestant; 

Jerome Templeton, Esq., Knoxville, Tennessee, 

for Respondent. 

Judge Melick. 

At hearing, the Complainant requested approval to withdraw his complaint in the captioned case for the reason that 

the adverse action taken against him (discharge) admittedly 

occurred before the alleged prot~cted activity (safety complaint). Under the circumstances, permission to withdraw 

was granted. 29 CFR § 2700. 11. iThe case is therefore dismissed. I f i /1 

~\/, .. Ll~U- .11 

Assistant. 

Gary Mel~~\ Chief Administrative ~ Law Judge I \ 

Distribution: ( :J .. I ' 

i / 

Art Roberts, Jr., Esq.~/212 Peters Road, P.O. Box 30159, 

Knoxville, TN 37930 tCertified mail) 

Jerome Templeton, Esq., 1100 Hamilton Building, Knoxville, 

TN 37902 (Certified mail) 

nsw 

2003 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 NOV 301983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CO-OP MINING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 80-142 

A.C. No. 42-00081-03011 

Docket No. WEST 80-286 

A.C. No. 42-00081-03014 

Docket No. WEST 81-85 

A.C. No. 42-00081-03022 

Co-op Mine 

DECISION 

Appearances: Katherine Vigil, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

Before: 

for Petitioner; 

Carl E. Kingston, Esq., Salt Lake City, Utah, 

for Respondent. 

Judge Vail 

I. Statement of the Case 

The above-captioned civil penalty proceedings were brought 

pursuant to section llO(a) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et~· (hereinafter referred to as 

"the Act"). The violations were charged in 21 citations issued to 

respondent following inspections at its Co-op mine located at 

Huntington Canyon, Utah. Pursuant to notice, a hearing on the 

merits was held in Salt Lake City, Utah. The parties waived filing 

post-hearing briefs. 

II. Issues 

The principal issues presented in this proceeding are: (1) 

whether respondent has violated the provisions of the Act and 

implementing regulations as alleged in the proposal for assessment 

of civil penalties filed in this proceeding; and, if so, (2) the 

appropriate civil penalty that should be assessed against the 

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. 

2004 
III. Settlement Proposals 

At the outset of the hearing, the petitioner moved that a 

settlement agreement entered into jointly by the parties be 

approved as follows: 

Docket No. WEST 80-142 

The petitioner contended that a reduction in the amounts of 

the four proposed penalties in the citations listed below were in 

order for the reason that upon review of the facts surrounding 

their issuance, it was found that respondent's negligence was not 

as great as originally assessed. The parties proposed the 

following: 

Citation No. 

789024 

789026 

788576 

788577 

30 C.F.R.§ 

75.1103 

75.604 

77.202 

75.1106-3C 

Proposed 

Penalty 

$ 90.00 

210.00 

170.00 

130.00 

Docket No. WEST 80-286 

Amended 

Proposed 

Penalty 

$ 72.00 

168.00 

136.00 

104.00 

The parties stipulated that the respondent had agreed to pay 

the full amount of the proposed penalties assessed in eight of the 

twelve citations listed below and that the reason for the 

petitioner proposing a reduction in the proposed penalties for the 

remaining four citations is that it was determined that 

respondent's negligence was less than originally assessed. The 

respondent agreed to pay the full amount of the proposed penalties 

in the following citations: 

Citation No. 

788834 

788835 

788837 

788838 

788839 

788883 

788885 

788886 

30 C.F.R. § 

75.316 

75.316 

75.316 

75.316 

75.1715 

75.404 

75.1715 

75.1715 

Proposed Penalty 

$150.00 

140.00 

66.00 

72.00 

52.00 

36.00 

40.00 

72.00 

The parties stipulated and agreed that the penalties for the 

citations listed below would be amended as follows: 

2005 
Citation No. 

788831 

788832 

788833 

788840 

IV. Stipulations 

30 C.F.R.§ 

75.1801 

75.1803 

75.1806 

75.1725C 

Proposed 

Penalty 

$ 48.00 

48.00 

48.00 

98.00 

Amended 

Proposed 

Penalty 

$ 38.00 

38.00 

38.00 

78.00 

The parties also entered into the following stipulations: 

1. The Co-op mine produced between 127,300 and 163,671 tons 

of coal a year and employed approximately 20 people. 

2. The mine experienced 143 inspection days in the 24 months 

preceding the issuance of the citations in WEST 80-142, and 

received 127 assessed violations. 

3. The mine had approximately 123 to 150 inspection days in 

the 24 months proceeding the issuance of the citations in Docket 

No. WEST 80-286 and was issued 131 to 138 assessed violations. 

4. The assessm~nt of reasonable penalties in the present 

proceedings would not affect the respondent's ability to continue 

in business. 

Upon due consideration, I conclude that the proposed 

settlements should be approved. Approval of the settlement 

proposals are reflected below in the final order. 

After settlement of the above citations in these three 

consolidated cases, there remains five citations alleging 

violation of safety standards to be resolved. These are as 

follows: WEST 80-142, Citation Nos. 788573 and 788579; WEST 

80-286, Citation Nos. 788884 and 788887; WEST 81-85, Citation No. 

1020472. 

Discussion 

WEST 80-142 

Citation No. 788573 

Citation No. 788573 alleges a type 104(a) violation of 

standard 30 C.F.R. § 77.208(e) which provides as follows: 

Valves on compressed gas cylinders shall be protected 

by covers when being transported or stored, and by a 

safe location when cylinders are in use. 

MSHA inspector Dick Jones testified that he issued the above 

citation during an inspection of the respondent's Co-op Mine after 

observing two cylinders of compressed gas at the tipple with the 

2006 
hoses and gauges still attached. The cylinders were secured to 

one of the supports under the coal preparation plant and were not 

being used (Tr. 13-14). 

The respondent does not dispute the fact that the cylinders 

were located at the place described by the inspector and without 

covers. However, Bill Stoddard, superintendent of the mine, 

testified that the two cylinders were located under the floor of 

the storage bin and that the bottoms of the cylinders were secured 

in round containers. The cylinders were further secured by two 

chains wrapped around the tanks to hold them in place (Tr. 36). 

Stoddard maintained that this was a permanent installation and 

that the tanks are protected from anything hitting or falling on 

them. The cylinders are used by the tipple foreman at different 

times for maintenance work when he is not busy with duties 

involving the tipple. 

Respondent argues that the cylinders were being used 

continuously on a daily basis. The tipple foreman at the time of 

the inspection, had left this area where the tanks were located 

to go load a truck. It is respondent's contention that when the 

gas cylinders are in a location where they are being used, they do 

not fall under the provisions of the standard which provides for 

the hoses and gauges to be removed and covers put on when being 

"stored". 

The petitioner contends that the inspector observed the two 

cylinders without covers on and that they were not being used at 

the time. He argues that under these circumstances they were 

being "stored" and required that covers be placed on the tops as 

there was a potential danger of something falling on top of or 

striking the cylinders and knocking off the gauges or hoses 

allowing the gas to escape. 

The threshold issue here is whether the gas cylinders were 

being "stored" or "in use" when the inspector observed them. Part 

77 of 30 C.F.R. does not define, "stored" or "in use". Webster's 

New Collegiate Dictionary 1977 Edition defines store (stored) as 

follows: "to lay away~ to place or leave in a location (as a 

warehouse, library or computer memory): something that is stored 

or kept for future use." 

In Western Steel Corporation, 5 FMSHRC 310 (March 1983), the 

Commission considered a similar factual situation under the 

standards for metal and nonmetal underground mines. In that case, 

the operator of an oxyacetylene torch welder had left the gas 

valves on the tank while he left the area to secure additional 

material. The standard cited in this instance stated as follows: 

"57.4-33 Mandatory. Valves on oxygen and acetylene tanks shall be 

kept closed when the contents are not being used." 

2007 
The Commission upheld the Administrative Law Judge's vacation 

of this citation stating~ "It must have been contemplated in the 

drafting of the standard that some reasonable lapse of time be 

permitted between the cutting and welding with the torch and 

closing of the tank valves." The Commission decided that the case 

required them to construe the meaning of the key phrase, "not 

being used." They stated that "use" has a temporal meaning 

because tasks extend over time. The Commission determined that 

the approximately 20-minute absence from the torch head was of 

temporary duration and directly related to the continuous 

performance of the specific welding task. However, in a footnote 

they stated that the above case did not require them to, and they 

did not decide whether a temporary laying aside of the torch 

welder for other work-related reasons or for such purposes as 

coffee breaks, trips to the lavatory, or the like, would require a 

different approach. 

In light of the foregoing, it may be reasonably inferred that 

the decision in the Western Steel case can be applied to the facts 

being considered here. The evidence in this case is not explicit 

as to how long the tipple operator had been gone from the area 

where the tanks were located, or for what reason he left. Jones 

testified that when he arrived at the tipple he observed the two 

cylinders with the hoses and gauges still attached. Jones stated 

that he saw a truck loading at the tipple and when the truck left, 

the miner working at loading the truck came over and identified 

himself as the tipple foreman. He abated the alleged violation by 

taking off the gauges and putting on the covers. Jones testified 

that he did not know how long it had been since someone had used 

these cylinders (Tr. 18). 

After a careful review of all of the evidence of record, I am 

persuaded that a violation of the cited standard occurred in this 

case. The respondent failed to identify any task the tipple 

foreman was performing prior to his loading the truck at the 

tipple. The thrust of respondent's arguments are that there was 

not a potential for danger from these tanks because of the 

location and manner in which they were located at the mine. Even 

assuming that the potential for an accident had been reduced 

considerably by reason of described precautions, the fact remains 

that the standard requires the covers to be placed on the tanks 

when they are not "in use" and are "being stored." There is no 

evidence that these tanks were being used by anyone prior to the 

arrival of the inspector so I am not presented with a factual 

situation similar to that posed in the Western Steel case. The 

evidence shows the tanks were kept at this location so that they 

were available for use by the tipple foreman whenever he had a 

task to do between his various duties at the tipple. However, 

when not in use, the standard requires that the covers be placed 

on these tanks, which the respondent had not done. 

2008 
I do not find either the negligence or gravity serious in 

this violation for the tanks were placed in an area where there 

was some protection from external forces and they were tied down 

with chains to prevent them from falling over. The likelihood of 

a serious injury wa~ small and usually only the tipple foreman 

would be in the area. Further, abatement was achieved immediately 

demonstrating a good faith effort to achieve rapid compliance. I 

assess a penalty of $35.00 for the respondent's violation of 

§ 77.208(e). 

Citation No. 788579 

During an ~nderground inspection of respondent's Co-op Mine, 

Inspector Jones issyed citation No. 788579 charging a violation of 

30 C.F.R. § 75.523 _/ and alleging as follows: 

The Joy roof bolter observed being operated in the belt 

entry of the 2-right working section was not provided 

with devices (panic bars) that will permit the equipment to be deenergized quickly in the event of an 

emergency. 

Jones testified that he observed two miners roof bolting in 

the entry outby the face and noticed there were no panic bars or 

means provided to quickly deenergize the tramming motors on the 

roof bolting machine in the event of an emergency. Jones asked 

one of the miners if the equipment could be trammed from where he 

was standing and the miner answered "yes" (Tr. 22, 23). Jones was 

accompanied on this inspection by Ron Mattingly, respondent's 

employee responsible for electrical maintenance. Upon being shown 

the alleged violation, Mattingly agreed that the machine needed 

panic bars (Tr. 23). 

Evidence shows that the roof bolting machine cited in this 

case was constructed from a frame originally manufactured by the 

Joy Manufacturing Company. Two booms manufactured by the Manson 

Company were attached to the front of the frame for drilling holes 

for installing roof bolts. Valves are located on each boom to 

operate the hydraulic pressure to run the drills. The procedure 

for roof bolting with this two-man bolter is for a miner to stand 

on each side to operate the controls on the boom. Each miner 

drills two holes for the roof bolts and then usually the miner on 

the right side goes to the cage located on that side to tram 

(move) the machine forward or backwards as needed (Tr. 55). The 

ll Electric Face Equipment~ deenergization. (Statutory Provision) 

An authorized representative of the Secretary may require in any 

mine that electric face equipment be provided with devices that 

will permit the equipment to be deenergized quickly in the event 

of an emergency. 

2009 
testimony of several witnesses explained that the roof bolter was 

trammed by a hydraulic tramming motor. A pump turned by an 

electric motor provided pressure necessary to operate the tramming 

motor to move the machine as well as the drills on the two booms 

(Tr. 84, 85). The term "tramming motor" is defined in the Bureau 

of Mines, U.S. Department of Interior, A Dictionary of Mining, 

Mineral and Related Terms (1968) as follows: "May refer to an 

electric locomotive used for hauling loaded trips, or it may refer 

to the motor in a cutting machine which supplies the power for 

moving or tramming the machine." 

Respondent sets forth essentially three arguments germane to 

the question of whether a v1olation of § 75.523 occurred. First, 

that the roof bolting machine had two panic bars installed on the 

machine, painted fluorescent orange in color, and the inspector 

failed to see them. Second, that the inspector misunderstood the 

miner's reply to his question as to whether the machine could be 

trammed from where he was standing. Third, that the roof bolter 

could only be trammed from inside the cage on the machine and 

panic bars were unnecessary (Tr. 170, 171). 

The specific issue to be decided is whether the machine cited 

in this case had devices installed on it which would allow it to 

be quickly deenergized in the event of an emergency. There is 

considerable divergent testimony as to whether there were panic 

bars installed on the machine with the inspector testifying he saw 

none and the respondent's employees claiming they were there and 

painted orange. The facts in this case must first be considered 

in conjunction with the sub parts of 30 C.F.R. § 75.523 which 

provide the applicable provisions adopted by the Secretary in 

complian~e with the statutory authority of the above regulation. _/ 30 C.F.R. § 75.523-1 provides in part as follows: 

Deenergization of self propelled electrical face 

equipment installation requirements. 

(a) Except as provided in paragraphs (b) and (c) of this 

section, all self-propelled electric face equipment 

2/ Although the inspector cited section 75.523, it is clear from 

both the meaning of the citation and the arguments of counsel for 

both parties that respondent was alleged to have violated subparts 

l(a) and 2 (a)(b)(c) which generally set forth the requirements to 

comply with the main section. Respondent was charged with not 

providing devices (panic bars) that would permit the equipment to 

be deenergized quickly in the event of an emergency. There was 

never a doubt that respondent was aware of what it had been 

charged with in this citation. 

2010 
which is used in the active workings of each underground coal mine on and after March 1, 1973, shall, in 

accordance with the schedule of time specified in 

paragraphs (a)(l) and (2) of this section, be provided 

with a device that will quickly deenergize the tramming 

motors of the equipment in the event of an emergency. 

The requirements of this paragraph (a) shall be met as 

follows: 

(1) On and after December 15, 1974, for self-propelled 

cutting machines, shuttle cars, battery-powered machines, 

and roof drills and bolters; 

(2) On and after February 15, 1975, for all oth1r 

types of self-propelled electric face equipment._/ 

Additionally, 30 C.F.R. § 75.523-l(a) must be read in conjunction 

with the requirements of 30 C.F.R. § 75.523-2(a)(b)(c) which 

provides as follows: 

(a) Deenergization of the tramming motors of 

self-propelled electric face equipment, required by 

paragraph (a) of § 75.523-1, shall be provided by: 

(1) Mechanical actuation of an existing push 

button emergency stop switch, 

(2) Mechanical actuation of an existing lever 

emergency stop switch, or 

(3) The addition of a separate electromechanical 

switch assembly. 

}/ The exceptions set forth at 30 CFR 75.523-l(b) and (c) provide 

as follows: 

"(b) Self-propelled electric face equipment that is equipped 

with a substantially constructed cab which meets the requirements 

of this part, shall not be required to be provided with a device 

that will quickly deenergize the tramming motors of the equipment 

in the event of an emergency." 

"(c) An operator may apply to the Assistant AdministratorTechnical Support, Mine Safety and Health Administration, 

Department of Labor, 4015 Wilson Boulevard, Arlington, Virginia 

22203 for approval of the installation of devices to be used in 

lieu of devices that will quickly deenergize the tramming motors 

of self-propelled electric face equipment in the event of an 

emergency. The Assistant Administrator-Technical Support may 

approve such devices if he determines that the performance thereof 

will be no less effective than the performance requirements 

specified in § 75.523-2." 

2011 
(b) The existing emergency stop switch or 

additional switch assembly shall be actuated by a bar or 

lever which shall extend a sufficient distance in each 

direction to permit quick deenergization of the tramming 

motors of self-propelled electric face equipment from 

all locations from which the equipment can be operated. 

(c) Movement of not more than 2 inches of the 

actuating bar or lever resulting from the application of 

not more than 15 pounds of force upon contact with any 

portion of the equipment operator's body at any point 

along the length of the actuating bar or lever shall 

cause deenergization of the tramming motors of the 

self-propelled electric face equipment. 

Turning to the merits of this case, the undisputed testimony 

of respondent's own witness shows that a violation of the Act 

occurred. Ron Mattingly testified that he was familiar with the 

condition of the panic bars on the day of the subject inspection 

and that one of the panic bars didn't function because of a faulty 

internal switch. It had been damaged and would not deenergize the 

equipment. Mattingly claimed there were two panic bars on the 

roof bolter, one on each side and that only one was working (Tr. 

63, 64). 

The thrust of the conflicting testimony in this case is 

misdirected towards two issues: First, whether the roof bolter 

could be trammed or moved from a position where the miners 

normally stood while operating the drills on the two booms. 

second, whether there were panic bars on the booms to deenergize 

the equipment in case of an emergency. Three witnesses testified 

on behalf of the respondent that the machine could only be driven 

forward or backwards from the cage located on the right side and 

that the miner would have to get in the cage to do this. This 

evidence was uncontroverted. 

The same three witnesses also testified that there were panic 

bars installed on the roof bolter with Mattingly stating that they 

were painted fluorescent orange. Jones stated that he did not see 

the panic bars described by the respondent's witnesses. 

However, assuming that the roof bolter was equipped with 

panic bars on each boom and could not be trammed or driven by a 

miner standing there, the respondent's defense must fail. 

Respondent's witness and electrical maintenance foreman testified 

that he knew one of the switches on the boom of the roof bolter 

used to deenergize the tramming motor was inoperative and that the 

switch had been on order for approximately two months (Tr. 63, 

64). 

201~ 
I find that the lack of a device on one boom of this two man 

roof bolter is a violation of the standard, specifically that part 

of section 75.523-2(b) which states in pertinent part as follows: 

(b) The existing emergency stop switch or additional switch 

assembly shall •.• permit quick deenergization of the tramming 

motors of self-propelled electric face equipment from all 

locations from which the equipment can be operated." (emphasis 

added). 

I find that the evidence clearly shows that the roof bolter 

could be "operated" from the booms. That is, the miners drilling 

holes turned the valves on the booms to operate the drills for 

installing roof bolts. It is vital in such a position that each 

miner be afforded a panic device to turn off the tramming motors 

powering the equipment in the event of an emergency. 

Respondent argues that one of the switches was operative and 

that this is all the standard requires. I reject that argument 

for it is imperative that the device be available for quick deenerg ization of the equipment from both sides and requiring one 

miner to go around the equipment to the other side to turn off the 

switch defeats the purpose. Although, I find it unnecessary in 

this case to resolve the question as to whether there were panic 

bars on the machine, it is imperative and required by the standard 

that such bars be installed to give the miner an opportunity to 

quickly "hit" the switch should an emergency arise. 

Penalty 

The six criteria for assessing a penalty are set out in 30 

C.F.R. § 820(i). The size of the operator is medium. The 

assessment of reasonable penalties in this case will not affect 

respondent's ability to continue in business. I find that 

respondent was negligent in allowing the two man roof bolting 

machine to be operated with one faulty panic switch. Also, I find 

that the respondent knew of this faulty switch as its employee 

responsible for electrical maintenance testified he was aware of 

this for over a two month period prior to the inspection. 

The probability of injury exists as the miner operating the 

drill was exposed to becoming entangled in the machine and being 

unable to switch it off. There is a likelihood that the other 

miner could deenergize the machine with his switch if he became 

aware of a need to do so, but this could take time. The injury 

could be serious and cause death. Only one miner at a time would 

be exposed to the risk. Respondent showed good faith in abatement 

of the violation. I find $150.00 is an appropriate penalty in 

this case. 

2013 
WEST 80-286 

Citation No. 788884 

Citation No. 788884 charges a 104(a) violation of 30 C.F.R. 

§ 75.1725(c) which provides as follows: 

Repairs or maintenance shall not be performed on 

machinery until the power is off and the machinery 

is blocked against motion, except where machinery 

motion is necessary to make adjustments. 

Inspector Ted Farmer testified that while inspecting the 

second right section of the first entry in the Co-op mine he 

observed a continuous miner being repaired while the power was on. 

The inspector testified that this created a dangerous situation 

because the employee doing the repairs was positioned under a 

cutting head containing sharp spikes which could have severely 

injured the employee had the power come on and the cutting head 

started running. 

Respondent admits the above facts as described by the 

inspector but denies that a dangerous situation existed. It is 

respondent's position that even though power was connected to the 

machine, it was not running and the cutting head was blocked and 

would not move if the machine started up. 

Scott Stoddard, respondent's mine foreman, testified that the 

conveyor chain was off the cog and he was under the machine trying 

to get it back on. He stated that the front of the machine was 

blocked up by a 6 foot crib and the switch to the power was off. 

He could not conceive of an accident happening because of the 

block and the switch being off (Tr. 142, 143). Stoddard contends 

that it was necessary to run the machine at certain times during 

these adjustments to get the holes in the chain lock to line up 

with the cog (Tr. 144). Respondent contends that there was no 

danger here and also that there is a provision in 30 C.P.R. § 75.-

1725(c) which provides that power may be on " •.. where machinery 

motion is necessary to make adjustments." 

I find that the above exception does not apply here. 

Testimony reveals that in order to complete the process of 

adjusting the cog to the chain, Stoddard, from his position 

outside the continuous miner, would direct the operator who was 

stationed in the cab of the continuous miner to run the cog. 

After he felt the cog was aligned properly, Stoddard would then go 

back under the head of the continuous miner to check the cog and 

chain for alignment (Tr. at 147). At this point, Stoddard would 

be under the cutting head while another man was in the cab at the 

controls with the power on. This presents a very dangerous 

situation. There is no reason why the power to the machine could 

not be turned off while Stoddard was going back under the head to 

check the alignment. If the cog required further adjustment, 

Stoddard could have backed away from the machine, power could have 

2014 
been turned back on, and the cog rotated by the operator in the 

cab. 

I therefore reject the Company's defense because it was not 

"necessary" that the power be on while the repairman was under the 

cutting head to check the alignment of the cog to the chain. The 

citation is affirmed. 

Penalty 

I find the respondent was negligent in not enforcing the 

safety regulation citeo in this case and particularly where it is 

a mine foreman who was performing the alleged dangerous act. The 

probability and gravity appear high in that the cutting head would 

inflict serious and possibly fatal injuries to an exposed miner. 

Also, the machine could easily be activated while the repairs were 

being performed under the machine. The violation was quickly 

abated showing good faith on respondent's part. I find $275.00 is 

an appropriate penalty in this case. 

Citation No. 788887 

Citation No. 788887 charges a 104(a) violation of 30 C.F.R. 

§ 75.316. 30 C.F.R. § 75.316 provides as follows: 

Ventilation system and methane and dust control plan. 

[Statutory Provisions]. 

A ventilation system and methane and dust control 

plan and revisions thereof suitable to the conditions 

and the mining system of the coal mine and approved by 

the Secretary shall be adopted by the operator and set 

out in printed form on or before June 28, 1970. The 

plan shall show the type and location of mechanical 

ventilation equipment installed and operated in the 

mine, such additional or improved equipment as the 

Secretary may require, the quantity and velocity of air 

reaching each working face, and such other information 

as the Secretary may require. Such plan shall be reviewed by the operator and the Secretary at least every 

six months. 

The facts related to this citation are not in dispute. In 

accordance with ~ 75.316, respondent developed such a plan with 

the Secretary's approval. That plan required that brattice lines 

or curtains be installed anytime an entry exceeds fifty feet from 

a crosscut (Tr. at 134, 135 and P-8). When the inspector made his 

2015 
inspection he saw an entry which had been mined 113 feet past the 

crosscut but was not equipped with a brattice line or curtain as 

the plan requires (P-10). While no brattice line was in place the 

inspector did observe marks in the roof which would indicate that 

sometime prior to the inspection a brattice line had been hung. 

The inspector also noticed some evidence of rib sloughage in the 

area where the curtain would have been hung. I find the 

inspector's testimony to be credible and accept these facts. 

When an operator departs from his ventilation plan, a 

violation of 30 C.F.R. § 75.316 occurs. Zeigler Coal Co., 4 IMBA 

30 ( 1975), aff 'd. 536 F. 2d 398 (D.C. Cir. 1976). The fact that 

the brattice line may have only been down for a short time or 

because of unusual conditions is not a defense. Consolidated Coal 

Co. 3 FMSHRC 2207 (September 1981). The citation is therefore 

affirmed. 

I find that respondent was negligent in failing to enforce 

safety regulation§ 75.316 rn~ndating brattice curtains in 

accordance with the operator's ventilation plan. 

Concerning citation No. 788887, I find the probability of 

injury to be moderate, the gravity of the potential injury to be 

very serious, and the number of employees subject to this danger 

to be considerable. While the facts do not disclose that a 

methane explosion was likely, had one occurred the injuries 

resulting from such an explosion could be fatal or very serious 

and the number of miners affected would be high. I find $160.00 

is an appropriate penalty in this case. 

WEST 81-85 

Citation No. 1020472 

Citation No. 1020472 alleges a 104(a) violation of 30 C.F.R. 

§ 75.403 which provides in pertinent part as follows: 

Maintenance of incombustible content of rock dust. [Statutory 

Provision] 

Where rock dust is required to be applied, it shall be 

distributed upon the top, floor, and sides of all underground 

areas of a coal mine and maintained in such quantities that 

the incombustible content of the combined coal dust, rock 

dust, and other dust shall be not less than 65 per centum, 

but the incombustible content in the return aircourses shall 

be no less than 80 per centum 

2016 
With respect to this citation, the essential facts are not in 

dispute. During a general inspection of respondent's Co-op Mine, 

Inspector Farmer noticed that the coloration on certain areas of 

the mine were a bit dark. This indicated to Farmer that the 

percentage of incombustible content of rock dust might be low in 

this specific area. Farmer took a spot sample of the dust by 

scraping a rib with a brush, sifting the material through a 

screen, and sending the sifted material out for chemical analysis. 

The usual procedure, referred to as band sampling, would be to 

combine samples from the roof, floor and both ribs. On this 

occasion, because the floor and roof were too wet, Farmer only 

took samples from the ribs. The reason for this is that the 

moisture content of the floor would cause the test to be 

inaccurate as to the ribs. Farmer noted wet floor condition on 

the form which accompanied the samples when they were sent for 

analysis. 

Four different samples from different areas were sent out for 

analysis. A dust sampling report was returned to Farmer with the 

results as follows: Spot #1 (sample taken from floor and ribs at 

an intake entry) 76%; Spot #2 (sample taken from ribs at a return 

entry) 73%; Spot #3 (sample taken from floor and ribs at a return 

entry) 73%; and Spot #4 (sample taken from ribs at an intake 

entry) 83% (Exh. P-4). 

Co-op argues that the dust sampling report ~acks a sufficient 

foundation because the inspector who testified to its findings had 

no personal knowledge of the testing procedures used to evaluate 

the sample. This identical defense was unsuccessfully raised by 

Co-op earlier in Co-op Coal Co., 3 IMBA 533 (1974), which also 

concerned admissibility of a dust sampling report on a 30 C.F.R. 

75.403 violation. The Adminstrative Law Judge in that case 

admitted the report because it had the "earmarks of reliability" 

and held that such a report can "establish a prima facie case of 

violation." Co-op Coal, at 539. Dust sample reports have been 

admitted in several other cases involving alleged violation of 

§ 75.403 without testimony of the person conducting the actual 

chemical analysis. See Leechburg Mining Co., 1 FMSHRC 632 (June 

1979), Itmann Coal Co., 3 FMSHRC 1221 (May 1981); and Old Ben Coal 

Co., 2 FMSHRC 2806 (Oct. 1980). 

Beyond admissibility, Co-op also attacks the credibility of 

the report on the basis that the testing procedures employed by 

the inspector were irregular. Such an attack is indeed authorized 

under Co-op Coal Co., 3 IMBA at 539. It is argued that normal 

procedure dictated by the MSHA Underground Manual requires band or 

perimeter sampling. Band sampling entails collecting dus~ from 

the floor, roof and both ribs and then combining all the dust in 

one sample for a single reading. 

2017 
This was not the method followed by Farmer in gathering the 

samples which generated the report in this case. Instead, the 

sample for Spot #2 was gathered only from the ribs and the sample 

for Spot #3 was gathered from the ribs and floor. 4; It is 

undisputed that the floor at Spot #2 was "wet" within the meaning 

of 30 C.F.R. § 75.402-1. Where a floor is "~et" there is no 

danger of combustibility and samples are not necessary. 30 C.F.R. 

§ 75.402. For this reason a floor sample was not included in the 

total Spot #2 sample. At the same time, it is also clear that 

moisture content will increase the percentage of incombustible 

material and must be considered as part of the incombustible 

content of such material. 30 C.F.R. § 75.403-1. Respondent argues 

that they have been denied the benefit of the wet floor reading 

which might have added sufficient incombustible material to the 

aggregate sample to meet the 80% requirement and give a more 

accurate reading. 

Failure of the inspector to follow his own internal guide 

lines on gathering dust report samples is not alone reason to 

discard the sample. Old Ben Coal, at 2809. Dust sampling reports 

based solely on rib samples have been held sufficiently 

accurate to support a § 75.403 violation if there are reasonable 

grounds for the inspector's procedures. Itmann Coal, at 1226. 

In the instant matter, the inspector testified that the roof 

was too high to obtain samples from there and the floor was too 

wet to sample. On further inquiry, however, the inspector 

revealed that a sample could have been obtained from the floor but 

that he felt it was not necessary because there was sufficient 

water to insure incombustible content over 80% (Tr. at 106). 

When asked if moisture content was to be included in the sample 

the inspector answered in the affirmative and added that this is 

why he noted the wet floor conditions on the form which accompanied the samples (Tr. at 105). However, in making the 

analysis which generated the 73% figure for Spot #2 I find that 

the condition of the floor was not factored into the percent 

reading whatsoever (Tr. at 105). Notwithstanding this, the 

Secretary bases his penalty solely on the percentage reading from 

the dust sampling report. 

In essence the government is arguing, notwithstanding the 

clear mandate to include moisture content in its sample, it can 

take a sample but exclude high moisture content areas because they 

are clearly in the safe range. The government then proposes to 

use this data to prove that respondent does not meet the threshold 

of the safe range. I find this reasoning tol3e unsound. The Spot 

#2 reading is unnecessarily inaccurate. Itman coal, at 1226. If 

4/ Spots 2 and 3 from return aircourses are the critical samples 

because they both tested at 73% incombustible content and 30 

C.F.R. 75.403 requires 80% for return aircourses. The remaining 

samples taken from intaking aircourses tested at 76% and 83% which 

is above the 65% minimum for intakes. 

2018 
the floor area was indeed too "wet" (as that term is used in 30 

C.F.R. § 75. 402-1) and was clearly in the safe zone then that 

specific area may be exempt frorn the rock dusting requirement 

altogether under 30 C.F.R. § 75.402. 

However, testimony does support a violation of the section 

based on sample #3 which did include samples from the floor area 

as well as the ribs. Co-op has not argued that one sample alone 

is insufficient to support a violation. Therefore, I find 

Citation No. 1020472 should be affirmed. Further, I find 

respondent's failure to maintain a sufficient level of incombustible material constituted negligence as the regulation 

requires an 80% level and respondent was maintaining a 73% level. 

I find the probability of injury as to this violation to be 

low but the gravity of the injury, should one occur, to be 

serious. Also a number of employees would be subject to this 

danger. Two of the four tests showed the operator to be in 

compliance. However, one of the two tests were unacceptably inaccurate and one test shows the operator to be in violation but 

only by seven percentage points. I find that $50.00 is an 

appropriate penalty in this case. 

Conclusions of Law 

Based upon the entire record in these consolidated cases 

including the stipulations of the parties and upon the factual 

determinations reached in the narrative portions of this decision, 

it is concluded: 

1. That the Commission has jurisdiction to decide these 

three cases. 

2. Based upon the stipulation of settlement entered into 

between the parties, the following agreed settlements for the 

designated citations are approved as follows: 

Docket No. WEST 80-142: 

Citation No. 

789024 

789026 

788576 

788577 

Total 

Proposed Penalty 

$ 72.00 

168.00 

136.00 

104.00 

$480.00 

2019 
Docket No. WEST 80-286: 

Citation No. 

788831 

788832 

788833 

788834 

788835 

788837 

788838 

788839 

788840 

788883 

788885 

788886 

Total 

Amended Proposed Penalty 

$ 38. 00 

38.00 

38.00 

150.00 

140.00 

66.00 

72.00 

52.00 

78.00 

36. 00 

40.00 

72.00 

$820.00 

3. That the credible evidence of record establishes as 

follows: In Docket No. WEST 80-142, Citation No. 788573, 

respondent violated 30 C.F.R. § 77.208(e) by failing to replace 

the covers on the tanks of compressed gas when not in use and that 

an appropriate penalty for this violation is $35.00. Also, in 

reference to Citation No. 788579, respondent violated 30 C.F.R. 

§ 75.523, in failing to have a device on one of the booms for 

deenergizing the tramming motors in the event of an emergency and 

that $150.00 is an appropriate penalty in this case. 

4. In Docket No. WEST 80-286, Citation No. 788884, the 

evidence shows that respondent violated safety standard 30 C.F.R. 

§ 75.1725(c) by failing to turn the power off to the continuous 

miner while a miner was underneath the machine attempting to 

replace the conveyor chain on the cog. An appropriate penalty in 

this case is $275.00. As to Citation No. 788887, respondent 

violated 30 C.F.R. § 75.316 by failing to follow its approved 

ventilation plan and an appropriate penalty for this violation is 

$160.00 

5. In Docket No. WEST 81-85, Citation No. 1020472, I find 

that the evidence shows that respondent violated 30 C.F.R. 

§ 75.403 by failing to maintain rock dust in sufficient quantities 

to comply with the requirements set out therein. Although some of 

the tests were not valid and indicative of a violation, I find 

that sample #3 supports the petitioner's contention that a 

violation occurred and that an appropriate penalty is $50.00. 

ORDER 

Accordingly, based upon the foregoing findings of fact and 

conclusions of law, the respondent is ORDERED to pay the total of 

$1,970.00 within forty days of this decision. 

/blc 

7~~~/?~ Vi rg :i« E. Vail 

Administrative Law Judge 
Distribution: 

Katherine Vi~il, Esq., Office <lf the Solicitor 

United States Department of Lal)or, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 (Certified Mail) 

Carl E. Kingston, Esq., 57 West Angelo Avenue 

P.O. Box 15809, Salt Lake City, Utah 84115 (Certified Mail) 

2021 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE HDV ~3 0 !983 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WESTMORELAND COAL COMPANY, 

Respondent 

: ' 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 83-202 

A.C. No. 46-01283-03513 

Docket No. WEVA 83-203 

A.C. No. 46-01283-03514 

Docket No. WEVA 83-204 

A.C. No. 46-01283-03515 

Docket No. WEVA 83-205 

A.C. No. 46-01283-03517 

Hampton No. 3 Mine 

ERRATA ORDER 

Before: Judge Kennedy 

The parties having moved for correction of an 

arithmetical error of $130 in my decision of November 7, 

1983, it is ORDERED that the same be, and hereby is, 

GRANTED and the decision corrected to show that the 

total amount of the settlement approved is $3,961. It 

is FURTHER ORDERED that as corrected the decision is 

confirmed and the operator directe to pay the amount 

of the settlement agreed upon, $3-· 61, FORTHWITH. 

! 

Distribution: 

/ 

l 

I 

.'/ ,.f 

William H. Connor, Esq., Office of the Solicitor, U.S. 

Department of Labor, 3535 Market St., Philadelphia, PA 

19104 (Certified Mail) 

F. Thomas Rubenstein, Esq., Westmoreland Coal Company, 

P.O. Drawers A & B, Big Stone Gap, VA 24219 (Certified 

Mail) 

/ejp 

2022