April 1982 

Connnission Decisions 

4-05-82 Alexander Brothers, Inc. 

4-22-82 Valley Limestone Company 

4-27-82 Phillips Uranium Corp. 

HOPE 79-221-P 

LAKE 81-87-M 

CENT 79-281-M 

Administrative Law Judge Decisions 

2-24-82 United States Steel Corp. KENT 81-136 

4-06-82 

4-06-82 

4-06-82 

4-07-82 

4-12:...82 

4-13-82 

4-13-82 

4-14-82 

4-15-82 

4-15-82 

4-15-82 

4-15-82 

4-20-82 

4-21-82 

4-27-82 

4-27-82 

4-28-82 

4-28-82 

4-29-82 

4-29-82 

4-29-82 

4-29-82 

Sol/MSHA ex rel George W. Heiney and John CENT 80-339-D 

Grahmm v. Leon's Coal Co. 

Helvetia Coal Co. 

Consolidation Coal Co. 

Betty B. Coal Co., Inc. 

Elmer Wayne Stat_on v. Kaynite 

C F & I Steel Corp. 

C F & I Steel Corp. 

Cambria Coal Co. 

Allen Keller Co. 

United States Steel Corp. 

Peabody Coal Co. 

PENN 82-42 

WEVA 82-3-R 

VA 81-15 

Mining Corp. VA 82-4-DM 

WEST 79-240 

WEST 80-469 

PENN 81-169-R 

CENT 81-224-M 

LAKE 81-102-RM 

LAKE 82-18 

J D Miller & Wilbur Vanderpool 

Sol/MSHA ex rel Bobby Gooslin v. 

Carbon Corp. 

WEST 81-244-M 

Kentucky KENT 80-145-D 

Dicamillo Brothers Mining Co. 

Raid Quarries, Divis~ of Medusa 

Aggregates Co., James Anderson, Robert 

Black Riv.er Sand &. Gravel, Inc. 

Consolidation Coal Co. 

Local 1889, Diatrict 17, UMWA v. 

Westmoreland Coal Co. 

Metric Constructors, Inc. 

United States Steel Corp. 

Kennecott Minerals Co. 

Gamble Coals, Inc. 

Orr 

WEST 81-210-M 

CENT 80-66-M 

WEST 80-75-M 

WEVA 80-116-R 

WEVA 81-256-C 

SE 80-31-DM 

WEST 80-386-R 

WEST 81-238-M 

WEVA 81-234-P 

Pg. 541 

Pg. 547 

Pg. 549 

Pg. 563 

Pg. 572 

Pg. 577 

Pg. 578 

Pg. 581 

Pg. 586 

Pg. 589 

Pg. 595 

Pg. 602 

Pg. 607 

Pg. 616 

Pg. 678 

Pg. 685 

Pg. 716 

Pg. 718 

Pg. 728 

Pg. 743 

Pg. 747 

Pg. 773 

Pg. 791 

Pg. 814 

Pg. 820 

Pg. 825 
:;_: 
Commission Decisions 

APRIL 

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

Patrick J. Mooney v. Sohio Western Mining Company, Docket No. CENT 81-157-DM. 

(Judge Vail, March 3, 1982) 

Secretary of Labor, MSHA v. Peabody Coal Company, Docket No. KENT 80-318-R, 

Kent 81-32. (Judge Lasher, March 4, 1982) 

Secretary of Labor, MSHA v. Allied Chemical Corporation, Docket No. WEST 79-165-M. 

(Judge Morris, March 19, 1982) 

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

Secretary of Labor, MSHA v. FMC Corporation, Docket No. WEST 80-397-RM, 

WEST 81-80-M. (Judge Boltz, February 22, 1982) 

Secretary of Labor, MSHA on behalf of Isaac A. Burton v. South East Coal Co., 

Docket No. KENT 81-124-D. (Judge Broderick, March 8, 1982) 

Secretary of Labor, MSHA v. FMC Corporation, Docket No. WEST 80-495-RM, 

WEST 81-259-M. (Judge Broderick, March 10, 1982) 

Secretary of Labor, MSHA v. Ace Energy Company, Inc., Docket No. KENT 80-368, 

etc. (Judge Steffey, March 24, 1982 Order confirming Default Order) 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ALEXANDER BROTHERS, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 5, 1982 

Docket No. HOPE 79-221-P 

DECISION 

This case involves the interpretation of sections 3(h) and 3(i) of 

the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et 

~· (1976)(amended 1977). The question is whether, at the time of the 

alleged violations at issue, Alexander Brothers, Inc., was subject to 

the 1969 Coal Act. We affirm the administrative law judge's finding of 

coverage. l/ 

Alexander Brothers' operation is located near the site of an 

abandoned underground mine that was operated from the 1930s to 1967, 

first by Pond Creek Coal Company and later by Island Creek Coal Company. 

Waste from the underground mine was deposited on the side of a hill and 

formed a refuse pile. ± ../ After Island Creek sealed the mine, Whitco and 

Recco Coal Corporation leased the property where the refuse pile is 

located £rom its owner, Henry Warden, and reclaimed coal from the pile. 

In late 1972 or early 1973, that corporation sold its equipment to 

Alexander Brothers, which also acquired rights to the lease between 

Warden and Whitco and Recco Coal. 

Alexander Brothers' reclamation activities are performed by four to 

seven employees, and take place at two plants about a mile apart. An 

end-loader removes material from the refuse pile and deposits it into 

trucks. The trucks bring the material to the screening plant and dump 

it into a bin. From the bin, the material goes through a roller and 

screen that removes large rocks. The material passes under a magnet 

that removes scrap metal. From there it crosses a vibrating screen 

where fine coal is sifted and workers pick out rock and obvious waste. 

The material is then sent through a hanuner mill and crushed. It is 

stockpiled until loaded for transportation to the cleaning plant. 

1/ The judge's decision is reported at 3 FMSHRC 2085 (1981). 

2/ The refuse pile is composed of coarse and fine coal, rock dust, 

garbage, rock, timber, wood, steel, dirt, tin cans, bottles, metal and 

general debris •. At the time of the hearing in January, 1981, it was 

estimated that about 20 to 25 percent of the material taken from the 

refuse pile was coal. 

541 

82-4-2 
At the cleaning plant the material is loaded into a bin and fed 

onto a conveyor belt. The belt transports it to a tank where it is 

mixed with water. The material next passes through a jig which separates coal and coal-bearing material from non-coal. ll From the jig, 

fine and coarse coal are handled separately. The fine material, i.e., 

1/8 inch size particles or smaller, goes to a cyclone that removes the 

remaining non-coal, and then goes to a dryer. !±_/ The larger pieces are 

crushed to one inch size particles and carried to a heavy media washer, 

which controls the ash content. 2_/ (Any fine coal resulting from this 

crushing also goes to a cyclone.) From the heavy media washer the 

coarse coal is·taken to the dryer. The fine and coarse coal are then 

remixed and loaded onto railroad cars for shipment. The coal is sold to 

a broker, and the parties stipulated that it enters interstate commerce. 

The administrative law judge examined the procedures undertaken by 

Alexander Brothers. He noted that Alexander Brothers' facility differs 

from "traditional preparation facilities" in that the raw material 

processed at those facilities is run-of-mine coal and thus contains a 

much higher percentage of coal than the material processed by Alexander 

Brothers. 3 FMSHRC at 2091. The judge found that, due to this difference 

in the composition of the materials processed, Alexander Brother~ 

employs some separation techniques not used at traditional facilities. 

He found, however, that both types of operations involve "breaking, 

crushing, sizing, cleaning, washing, drying, mixing, storing, and 

loading" of coal. The judge noted that section 3(i) of the Coal Act defined "work of preparing the coal" as including these very processes. 

He concluded that Alexander Brothers engages in the "work of preparing 

the coal" as defined in section 3(i). 3 FMSHRC at 2093. 

In addition, the judge held that a coal preparation facility need 

not extract coal or have a direct relationship with the extractor in 

order to be covered by the Coal Act. 3 FMSHRC at 2092-93. The judge 

lf A jig is defined as: 

a. A device which separates coal from foreign matter by 

means of their difference in specific gravity in a water 

medium. 

Bureau of Mines, U.S. Department of Interior, A Dictionary of Mining, 

Mineral, and Related Terms 600 (1968)(hereafter "Dictionary of Mining"). 

!±_/ A cyclone cleans coal with the aid of centrifugal force: 

cyclone washer. Cyclone washing of small coal ••• is effected 

with the aid of centrifugal force. The heavier shale particles 

move to the wall of the cyclone and are eventually discharged 

at the bottom while the lighter coal particles are swept 

towards the central vortex and are discharged through an 

outlet at the top. The washer may be used for cleaning coal 

up to .three-fourths of an inch •••• 

Dictionary of Mining at 297. 

2_/ A heavy media washer is a machine that cleans coal by means of a 

sink-float process that separates coal from other minerals through 

immersion in a magnetite suspension. See "dense-media separation" and 

"heavy-media separation", Dictionary of Mining at 311, 536. 

542 
therefore concluded that Alexander Brothers was subject to the coverage 

of the Coal Act. He did not resolve the question of whether Alexander 

Brothers was a "custom coal preparation facility" under section 3(h). 

3 FMSHRC at 2097. 6/ Finally, he rejected Alexander Brothers' argument 

that the definitio; of "coal mine" contained in section 3(h) of the Coal 

Act was unconstitutionally vague. Id. 

Alexander Brothers argues that it was not subject to the Coal Act 

because it has no connection with any coal extractor. This argument is 

premised largely on a memorandum issued March 31, 1972, by the Mining 

Enforcement and Safety Administration, commonly referred to as the 

Geisler memorandum. This memorandum was rescinded on October 8, 

1976. ]_/ The Geisler memorandum indicated that a preparation facility 

would not be considered a mine under the Coal Act unless it were directly 

connected to the extractor of the coal it prepared. Alexander Brothers 

argues that the Geisler memorandum represents "a clear, concise and 

logical analysis of the intent of Congress with respect to the scope of 

the definition of a coal mine under the 1969 Coal Act." Alexander 

Brothers submits that the Commission should reject the rationale of the 

1976 memorandum rescinding the Geisler memorandum because it improperly 

extends the jurisdiction of the Coal Act. 

Our resolution of the question before us is governed by the statute, 

rather than by which of two conflicting interpretations by the Solicitor 

is correct. Resolution of questions of statutory interpretation is a 

primary role of the Commission. Helen Mining Co., 1 FMSHRC 1796, 1781, 

rev'd on other grounds sub nom., UMWA v. FMSHRC, No. 79-2503, etc., 

(D.C. Cir. Feb. 23, 1982). Thus, we will examine the facts in this case 

against the relevant statutory provisions. 

The term "coal mine" was defined in section 3(h) of the 1969 Coal 

Act as follows: 

"coal mine" means an area of land and all structures, 

facilities, machinery, tools, equipment, shafts, slopes, 

tunnels, excavations, and other property, real or personal, 

placed upon, under, or above the surface of such land by 

any person, used in, or to be used in, or resulting from, 

!!._/ In view of our conclusion that Alexander Brothers was subject to 

the Coal Act because it engaged in coal preparation, we also do not resolve 

this issue. In addition, the judge suggested that the Act would cover 

Alexander Brothers' operation simply because it was performed on an area 

of land "resulting from" the work of extracting coal from its natural 

deposits. It is also unnecessary for us to address this alternate 

basis of coverage. 

]_/ The Geisler memorandum was an internal Department of Interior memo 

from the assistant solicitor for regulations and procedures to the 

director of the Bureau of Mines. The assistant solicitor responded to 

an inquiry on whether Geisler Coal Sales, and similar independent preparation facilities, were subject to the 1969 Coal Act. The 1976 memorandum was also from the Interior Department's Office of the Solicitor, 

and was addressed to the administrator for MESA. It reviewed the Geisler 

memorandum. 

543-
the work of extracting in such area.bituminous coal, 

lignite, or anthracite from its natural deposits in the 

earth by any means or method, and the work of preparing 

the coal so extracted, and includes custom coal preparation facilities. 

30 U.S.C. § 802(h)(l976)(emphasis added). Section 3(i) of the 1969 Coal 

Act provided: 

"work of preparing the coal" means the breaking, crushing, 

sizing, cleaning, washing, drying, mixing, storing, and 

loading of bituminous coal, lignite, or anthracite, and 

such other work of preparing such coal as is usually done 

by the operator of the coal mine. 

Section 3(h) did not specifically require that those involved in 

"the work of preparing the coal" be connected with the extractor. §._/ 

Moreover, to hold that the Coal Act did not apply to preparation facilities 

that were not connected with the extractor of the coal being prepared 

would remove from that Act's coverage facilities that would otherwise be 

regulated, except for their bu.siness arrangement, geographic location, 

or period of operation. We conclude that a connection with the extractor 

of coal was not required for a facility engaged in "the work of preparing 

the coal" to have been subject to the Coal Act. !!_/ 

Alexander Brothers also argues that it does not engage in the "work 

of preparing the coal," but rather processes refuse "which happens to 

contain a small amount of coal." The company asserts that its equ•ipment 

would not function if coal mined from its natural deposit were processed 

by it. Alexander Brothers argues that few, if any, coal preparation 

operations perform all the functions it does--particularly those functions 

necessary to remove the foreign debris (wood, tin cans, metal, trash, 

garbage, etc.) from its "raw" material--and that this makes its facility 

"fundamentally very different from a coal preparation plant as envisioned 

by the • • • [Coal] Act." 

§../ The 1977 Mine Act's definition of "mine" was changed somewhat from 

that of the 1969 Coal Act. Among the modifications was the substitution 

in the 1977 Act of the word "or" for "and" before "the work of preparing 

coal." We do not regard this change to be significant; rather, we believe 

that Congress intended to clarify, not alter, its original intent 

with respect to the extent of the statute's coverage of the mining process. 

See S. Rep. 95-121, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate 

Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d 

Sess., Legislative History of the Federal Mine Safety and Health Act of 

1977, at 602 (1978). 

!!_/ Courts have held that a connection to extraction is not required 

under the 1977 Mine Act for coverage of a preparation facility. See, 

e.g., Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589 (3d Cir. 

1979), cert. denied, 444 U.S. 1015 (1980); Marshall v. Tacoma Fuel Co., 

No. 77-0104-B (W.D. Va. June 29, 1981). 

544 
The judge found that Alexander Brothers' processes include "breaking, 

crushing, sizing, cleaning, washing, drying, mixing, storing, and loading" 

of coal. These are all the processes listed in section 3(i) of the 1969 

Coal Act. As we noted in Oliver M. Elam, Jr., 4 FMSHRC 5 (1982), 

inherent in determining whether a preparation operation is a mine is an 

inquiry not only into whether the operator performs one or more of the 

listed work activities, but also into the nature of the operation. 4 

FMSHRC at 7. 10/ In this regard, we held that "work of preparing the 

coal" signifies a process undertaken to make coal suitable for a particular 

use or to meet market specifications. 4 FMSHRC at 8. Here the processes 

undertaken by.the company are all those specifically enumerated in 

section 3(i). Moreover, Alexander Brothers does not dispute that it 

undertakes those processes in order to make coal-bearing refuse marketable as coal. The mere fact that its "raw material" has a greater 

proportion of non-coal than that of rurt-of-mine preparation plants does 

not remove Alexander Brothers from the jurisdiction of the Coal Act. 

Finally, we reject Alexander Brothers' argument that section 3(h) 

of the Coal Act .was so vague as to violate constitutional due process 

requirements. As the judge correctly noted, any perplexity concerning 

the meaning of the statutory section "is undoubtedly due to the broadness of the Act; not its vagueness." 3 FMSHRC at 2097. 

For the foregoing reasons, the decision of the administrative law 

judge is affirmed. 

10/ Although Elam arose under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et~· (Supp. III 1979), that statute's definition 

of "work of preparing the coal" is identical to the definition in the 

1969 Coal Act. 

545 
Distribution 

Donald D. Saxton, Jr., Esq. 

63 South Main Street 

Washington, Pennsylvania 15301 

Linda Leasure, Esq. 

Leslie J. Canfield, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

546 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

VALLEY LIMESTONE COMPANY 

v. 

SECREIARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR. 

WASHINGTON, D.C. 20006 

April 22, 1982 

Docket No. LAKE 81-87-M 

ORDER 

Valley Limestone Company has filed a petition for reconsideration 

of the Commission's failure to grant its petition for discretionary 

review filed op February 25, 1982. Upon review of the petition for 

reconsideration and further review of the petition for discretionary 

review, Valley Limestone's request for econsideration is~nied. 

j,,J 

ollyer, Cha· 

547 82-4-10 
Distribution 

Valley Limestone Company 

Lloyd H. Johnson, Sr. 

Box 127 

Zumbrota, Minnesota 55992 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Charles C. Moore 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

548 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 27, 1982 

Docket Nos. CENT 79-281-M 

CENT 79-282-M 

CENT 80-6-M 

:., CENT 80-124-M 

PHILLIPS URANIUM CORPORATION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PHILLIPS URANIUM CORPORATION 

Docket No. CENT 80-208-M 

DECISION 

These cases arise under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 !,!~(Supp. III 1979), 'involve the same 

parties, and present identical issues. We therefore consolidate 

and dispose of them in this decision. Docket Nos. CENT 79-281-M, 

CENT 79-282-M, CENT 80-124-M, and CENT 80-6-M are hereinafter 

referred to as "Phillips I". Docket No. CENT 80-208-M is referred 

to as "Phillips II". 

The common issue presented is whether the administrative law 

judge in each case erred in upholding citations and orders issued 

by the Secretary of Labor to Phillips Uranium for violations of the 

1977 Mine Act arising from the work activities of independent contractors engaged by Phillips. 

Facts 

These cases were submitted to the judges on the basis of stipulations of facts and motions for summary decision. The stipulations 

in each case established the same material facts. Phillips owned 

mining rights and was conducting mining activities subject to the 

Mine Act at a proposed uranium mine. Phillips retained large, 

independent companies with experience and expertise in shaft sinking 

and related underground construction. As a matter of law, these 

549 82-4-14 
contractors are "operators" under the Mine Act's definition. The 

citations and orders alleging violations of the Act described 

activities or omissions of the contractors' employees or conditionp 

of the contractors' equipment or facilities relating to the work the 

contractors were engaged to perform. Phillips' employees, equipment 

or activities did not cause or contribute to the alleged violations. 

Phillips' employees did not perform any work for the contractors, but 

they did inspect and observe the progress of the work to assure compliance with quality control and contract specifications. The alleged 

violations were abated by employees of the contractors. 

The stipulations also established the following: MSHA's policy 

at the time the citations and orders were issued was to cite only 

operators with a "Federal Mine Identification Number." None of 

the involved contractors possessed such an identification number. 

The identification number for the subject site was possessed by 

Phillips. Phillips was proceeded against under an MSHA policy to 

directly enforce the Act against only owner-operators for contractor 

violations. This policy was an interim policy pending MSHA's adoption of regulations governing the issuance of identification numbers 

to contractors and the direct citation of contractors so identified. 

Procedural Background 

The 1977 Mine Act became effective on March 9, 1978. The Act 

imposes a duty on mine operators to comply with its provisions and 

includes in its definition of "operator," "any independent contractor 

performing services or construction at such mine." 30 U.S.C. § 802(d). 

The citations at issue in Phillips I were issued to Phillips between 

February and August 1979. The citation and order at issue in Phillips 

II were issued to Phillips in November 1979. 

In August 1979 the Secretary published a proposed rule addressing. 

the citation and identification of contractors as operators. 44 Fed. 

Reg.,44746-47753. On July 1, 1980, the Secretary published the final 

rule. 45 Fed. Reg. 44494-44498. This rule became effective on July 31, 

1980. 

Shortly before the Secretary's final rule was published, motions 

for summary decision were filed in the present cases. Cross-motions 

for summary decision in Phillips I were submitted in May 1980. A 

joint motion for summary decision in Phillips II was submitted in 

June 1980. 

On June 5, 1980, before the publication of the final rule, the 

judge decided Phillips I finding on the basis of the Commission's 

decision in Old Ben Coal Co., 1 FMSHRC 1480 (1979), aff'd, No. 79-2367, 

D.C. Cir., January 6, 1981, that the citations were· properly issued to 

Phillips. The Commission granted Phillips' petition for discretionary review of the judge's decision. On August 4, 1980, the Commission remanded Phillips I to the judge for the limited purpose of 

ailowing the Secretary the opportunity to determine, in light of the 

subsequent adoption of his final rule, whether to continue to proceed 

against Phillips only, or to proceed against the contractor, or both. 

On remand the Secretary responded that it was not in his "interest" to 

550 
substitute or join the contractor. He stated, however, that he would 

not oppose a joint motion by Phillips and the contractors to substitute 

the contractors, or a motion by Phillips to implead the contractor, if 

such motions were filed. In view of this response the judge returned 

the record to the Commission. ];./ 

The judge in Phillips.II also issued an order allowing the Secretary an opportunity to redetermine whether, in light of the new 

regulations, he would continue to proceed against Phillips only. 

The Secretary again responded that he would proceed solely against 

Phillips, but would not oppose a motion by Phillips to join the 

contractor •. Following this response, the judge affirmed the 

citation and order issued to Phillips on the basis of the Old Ben 

decision. We granted Phillips' petition for discretionary review. 

Discussion 

In our decision in Old Ben Coal Co., we emphasized that, although 

an owner-operator can be held responsible without fault for a violation 

of the Act committed by its contractor, the Secretary's decision to 

proceed against an owner for such a violation is not insulated from 

Commission review. 1 FMSHRC at 1483-1484. For the reasons stated 

in Old Ben we hold that the Commission may review the Secretary's 

decision in these cases to proceed against Phillips. 

The test applied by the Commission in reviewing the Secretary's 

choice is "whether the Secretary's decision to proceed against an 

owner for a contractor's violation was made for reasons consistent 

with the purposes and policies of the 1977 Act." 1 FMSHRC at 1485. 

1./ Shortly after the judge returned the record in Phillips I to the·· 

Commission, Phillips and American Mine Services (AMS)(the contractor 

that created the violative condition at issue in Docket No. 

CENT 79-281-M), entered into a contractual agreement in which AMS 

agreed to be voluntarily substituted as the respondent in Docket No. 

CENT 79-281-M. AMS also tendered a check to Phillips, endorsed to 

the MSHA's Office of Assessments, for the full amount of the penalty 

proposed by MSHA. Phillips indicated to the Secretary that the primary 

objective of the substitution was to remove the citation from Phillips' 

history of violations. 

In his brief on review, the Secretary states that he would not 

oppose a remand of Docket No. CENT 79-281-M for the substitution of 

AMS. Although the Secretary has not initiated the substitution, and 

in the absence of the efforts made by the operators would be content 

to continue against Phillips, we will grant a remand in this docket 

so that AMS can be substituted and Phillips dismissed. In light of 

the agreement between Phillips and AMS, and in view of our discussion 

in this decision, we find that the purposes of the Act will be served 

by allowing the substitution. 

551 
Our upholding of the Secretary's choice in Old Ben, albeit with 

considerable doubts expressed as to the wisdom thereof, was largely 

based on the particular chronology of events in that case. The 

citation in Old Ben was issued only thirty-four days after the 1977 

Mine Act had taken effect. 1 FMSHRC 1486 n.7. Recognizing that 

responsibility for enforcement of the nation's mine safety program 

had only recently been transferred to the Department of Labor from 

the Department of Interior, we found that the Secretary's decision 

to cite Old Ben under an "interim" agency-wide policy to proceed 

only against owner-operators was, at least at that early stage, a 

decision not inconsistent with the purposes and policies of the 1977 

Act. 

The facts in the present cases place them in a fundament~lly 

different light. The citations and orders here were issued in a 

period extending from 11 to 17 months after the 1977 Act took effect. 

Furthermore, more than two years after the Act's effective date, and 

well after the Commission's decision in Old Ben, the Secretary continued to proceed against Phillips, as owner-operator, by submitting 

the cases on motions for summary judgment. Finally, the cases were 

submitted shortly before the Secretary published his final regulations on identifying and proceeding against independent contractors, 

and even thereafter the Secretary refused to apply the regulations 

against the very operators who would be held accountable under the 

regulations. 

As we previously have observed, "direct enforcement against contractors is a vital part of the 1977 Act's enforcement scheme." 1 FMSHRC 

at 1483. "[T]he amendment of the 1977 Act's definition of operator 

to include independent contractors was intended to accomplish a 

specific purpose, i.e., to clearly reflect Congress' desire to 

subject contractorstO direct enforcement of the Act." 1 FMSHRC 

at 1486. MSHA itself acknowledges that direct enforcement against 

contractors bes~ serves the health and safety of miners. In the 

preamble to its contractor regulations MSHA stated: 

During the course of the rulemaking process, 

MSHA has been persuaded that the interest of 

miner safety and health will best be served by 

placing responsibility for compliance with the 

Act, standards and regulations upon each 

independent contractor. 

* * * The commentors' analysis of the concept 

that independent contractors are generally 

in the best position to prevent safety and 

health violations in the course of their 

own work, and to abate those violations 

that may occur, has persuaded MSHA that. 

holding all independent contractors 

responsible for their violations will 

in the majority of instances improve 

the overall safety and health of miners. 

45. Fed. Reg. 44494, 44495 (emphasis added). 
The shortcomings of the Secretary's decision to proceed against 

Phillips here are made all the more evident by viewing the facts in 

light of the basic statutory scheme. Large, skilled contractors were 

retained for their expertise in an important and familiar facet of 

mine construction, i.e., the sinking of shafts and related underground construction"""iiCtivities. The hiring of contractors to perform 

the specialized task of shaft construction is common in the mining 

industry. The contractors, conceded to be "operators" subject to 

the Act, failed to comply with various safety standards. Yet Phillips, 

rather than the contractors, was cited; penalties were sought against 

Phillips, rather than the contractors; the violations would be entered 

into Phillips' history of violations, rather than the contractors' 

histories, resulting in increased penalties for Phillips rather than 

the contractors in later cases; 2/ Phillips, rather than the contractors 

could be subjected to the stringent section 104(d) sequence of citations and orders; and Phillips rather than the contractors could be 

subjected to the stringent section 104(e) pattern of violation provisions •. Compared to Phillips' burden in bearing the full brunt of 

the effects of the violations committed by the contractors, the 

contractors would proceed to the next jobsite with a clean slate, 

resulting in a complete short-circuiting of the Act's provisions for 

cumulative sanctions should the contractors again proceed to engage 

in unsafe practices. 

We previously have observed that "[i]n many circumstances ••• it 

should be evident to an inspector at the time that he issues a citation 

or order that an identifiable contractor created a violative condition 

and is in the best position to eliminate the hazard and prevent it from 

recurring." 1 FMSHRC at 1486. This precise situation was evident to 

the inspector when he issued the citations and orders in these cases, 

was evident to the Secretary's attorneys in preparing and submitting 

these cases against Phillips, and most assuredly was evident to the 

Secretary after adoption of his final regulations on independent contractor violations. The Secretary's insistence on proceeding against 

Phillips appears to be a litigation decision resting solely on considerations of the Secretary's administrative convenience, rather than 

on a concern for the health and safety of miners. In choosing the 

course that is administratively.convenient, the Secretary has ignored 

Congressional intent, the Commission's clear statements in Old Ben, and 

the intent of his own regulations, and has subjected the wrong party to 

the continuing sanctions of the Act. The Secretary's decisions to 

continue against Phillips were not consistent with the purposes of the 

Act and must fail. 

2/ In his motion to dismiss as moot, denied this date, the Secretary 

asserts that under his penalty assessment regulations violations are 

not counted in an operator's history after two years. As the Secretary 

is well aware, in assessing penalties under the Act the Commission and 

its judges are not bound by the Secretary's penalty assessment regulations. 

30 U.S.C. § llO(i); 29 C.F.R. § 2700.29(b). Cf. Co-op Mining Co., 2 FMSHRC 

784, 785 (1980). See also, 30 C.F.R. § 100.2-.- Therefore, the fact that 

the Secretary, for his purposes, may choose to discount violations that 

occurred more than two years in the past is not determinative of an 

operator's history in cases contested before the Commission. 

553 
Accordingly, the decisions of the administrative law judges in 

Docket Nos.-CENT 79-282-M, CENT 80-6-M, CENT 80-124-M and CENT 80-208-M 

are reversed, the citations and orders are vacated and the petitions for 

assessment of civil penalties are dismissed. Docket No. CENT 79-281-M 

is remanded so that Phillips can be dismissed and AMS substituted, 

and for further proceedings consistent with this decision. ~ n. 1, 

supra. 

I 

.I 

554 
Commissioner Lawson dissenting: 

In Old Ben, supra, the Commission agreed with the Secretary's decision 

to proceed against only the owner-operator. We held that: 

·

11 It was not the intention of Congress to limit the 

number of persons who are responsible for the 

health and safety of the miner, nor to dilute or weaken 

the obligation imposed on those persons, ••• we find 

that, as a matter of law under the 1977 Act, Old Ben, 

as an owner-operator, can be held responsible without 

fault for the violation of the Act committed by its 

contractor. When a mine operator engages a contractor 

to perform construction or services at a mine, the duty 

to maintain compliance with the Act regarding the contractor's activities can be imposed on both the owner 

and the contractor as operators. • •• Arguably, one 

operator may be in a better position to prevent the 

violation. However, as we read the statute, this issue 

does not have to be decided since Congress permitted 

the imposition of liability on both operators regardless 

of who might be better able to prevent the violation." 

(Emphasis added). 

Old Ben, supra, at 1483. 

The rationale supporting the Commission's conclusion that owneroperators are responsible for contractor-operators' violations under-the 

1977 Act also has recently been firmly endorsed by two Courts of Appeals. In 

Harman Mining Corporation v. FMSHRC, No. 81-1189 (4th Cir. December 24, 1981), 

the court stated: 

"Based upon our analysis of the statute, we held that 

the owner of a mine is liable "regardless of who 

violated the Act or created the danger" (citing 

Bituminous Coal Operators Association v. Secretary 

of Interior, 547 F.2d 240 (4th Cir. 1977)). 

In Cyprus Industrial Minerals Company v. FMSHRC, 664 F.2d 1116 (9th Cir. 1981) 

the court held: 

"In addition, mine owners are strictly liable for the 

actions of independent contractor violations under the 

Coal Act and the present (1977 Act)." (Citations omitted). 

The Secretary presents sound policy reasons for holding 

owners liable for violations committed by independent 

contractors. For one thing, the owner is generally in 

continuous control of conditions at the entire mine. 

The owner is more likely to know the federal safety and 

health requirements. If the Secretary could not cite the 

owner the owner could evade responsibility for safety and 

health requirements by using independent contractors for 

most of the work. The Secretary should be able to cite 

either the independent contractor or the owner depending 

on the circumstances. 

555 
A mine owner cannot be allowed to 'exonerate itself from 

its statutory responsibility for the safety and health 

of miners merely by establishing a private contractual 

relationship in which miners are not its employees and 

the ability to control the safety of its workplace is 

restricted" (citing Secretary of Labor v. Republic Steel 

Corp., 1 FMSHRC 5 (1979)). (Emphasis added). 

Less than two months ago, this Commission again found that an owneroperator "was properly cited for the conditio11 created by its independent 

contractor." U. S. Steel Corporation, 4 FMSHRC 163, 164 (February 25, 

1982). . 

The majority here chooses to ignore precedent and instead asserts that 

the Secretary must at this late date discontinue the cases it has successfully prosecuted against the owner-operator in these dockets. This is even 

more anomalous since, in Phillips I, this Commission remanded that case to 

the Secretary, and offered him the choice of continuing these dockets against 

the owner-operator, proceeding only against the contractor-operator, or 

against both. In light of the majority's decision today, that offer was 

obviously a sham. The Secretary is now ordered to start anew and, on two year 

old violations, issue new citations against Phillips' contractors in these 

now stale dockets. 

It bears emphasis that in Old Ben (also affirmed by the D.C. Court of 

Appeals; No. 79-2367 (1981)), (supra at 1486), we criticized the Secretary 

only if he "unduly prolongs the policy that prohibits direct enforcem~nt of 

the Act against contractors." (emphasis added), indicating that the 

Secretary's formerly inflexible policy of proceeding only against owneroperators for contractor-operator's violations would not be permitted to 

continue indefinitely. !/ 

This precedent--the only one cited by the majority--therefore reached 

a result contrary to that the majority herein now endorses. 

l/The length of time taken by the Secretary for the development of a new policy 

was, in any event, not unduly prolonged. The proposed rule was published in the 

Federal Register on October 31, 1978 (43 F.R. 50716), and forty-five days 

allotted for public comment thereon. Comments were received from more than 

seventy-five organizations and individuals. The comments were analyzed and a new 

proposed rule published on August 14, 1979 (44 FR 47746-53). Six public hearings 

were held on the proposal. During this period of public comment the agency received some eighty written comments, and the hearings generated testimony from 

seventy-three witnesses extending over six hundred and sixty-five transcript pages, 

in addition to one hundred and f if ty-f ive pages of written statements submitted 

at the hearings. The time consumed in promulgating a final rule was thus largely 

due to the extensive public participation throughout the entire rulemaking 

process, and the Secretary's commendable and sensitive response thereto. 

556 
The citations in Phillips I were issued prior to the Commission's 

decision in Old Ben. To the exten·t therefore that the majority opinion, 

as it does, relies on Old Ben in criticizing the Secretary's initiation 

of the Phillips I action against the owner-operator, it is obviously 

misdirected. 

In Phillips II, the citation and order were issued only thirteen days 

after the Commission's Old Ben decision, and nothing in the record reveals 

awareness by any Secretarial personnel of that decision. The majority's 

contention that issuance of either the Phillips I or II citations and order 

was in defiance or contravention of this now asserted Old Ben prohibition 

is therefore unsupported. The judges in both Phillips' I and II decided 

these cases with full cognizance of and in reliance on the Commission's 

decision in Old Ben, and neither found any fault in the Secretary's 

prosecution of Phillips. 

More narrowly, of course, the Co.mmission did not--and indeed 

could not--prohibit the Secretary's direct enforcement of the Act 

against an owner-operator. As the Senate Committee Report on the 1977 

Act noted: 

"In enforcing this Act, the Secretary should be able 

to issue citations, notices, and orders, and the 

Commission should be able to assess civil penalties 

against such independent contractors as well as 

against the owner, operator, or lessee of the mine. 

The Committee notes that this concept has been 

approved by the federal circuit court in Bituminous 

Coal Operators' Assn. v. Secretary of the Interior, 

547 F2d 240 (C.A. 4, 1977)." (Emphasis added). 

S. Rep. 95-181, 95th Cong., 1st Sess. 14 (1977). 

The majority here chooses to quote only the preamble to the "contractor 

regulations" upon which it places such great emphasis. 2/ The regulations 

themselves, however, fail to support that selective quotation: 

J:./ Indeed, even the quoted material relied upon by the majority sanctions 

prosecution of owner-operators; viz ••• "in the majority of instances" the 

Secretary may proceed against contractor-operators. Obviously, therefore, 

he is not bound to do so in other instances (page 4, supra). 

557 
"General Enforcement Policy for Independent Contractors. 

MSHA's general enforcement policy regarding 

independent contractors does not change the basic 

compliance responsibilities of production-operators. 

Production-operators are subject to all provisions 

of the Act, standards and regulations which are 

applicable to their mining operation. This overall 

compliance responsibility of production-operators 

includes assuring compliance with the standards and 

regulations which apply to the work being performed 

by independent contractors at the mine. As a result, 

independent contractors and production-operators 

both are responsible for compliance with the provisions of the Act, standards and regulations 

applicable to the work being performed by independent 

contractors. 

Enforcement action against production operators 

for violations involving independent contractors is 

ordinarily appropriate in those situations where the 

production-operator has contributed t.o the existence 

of a violation, or the production operators' miners 

are exposed to the hazard, or the production-operator 

has control ·over the existence of the hazard. Accordingly, 

as a general rule, a production-operator may be properly 

cited for a violation involving an independent contractor: (1) when the production-operator has 

contributed by either an act or an omission to the 

occurrence of a violation in the course of an independent contractor's work, or (2) when the productionoperator has contributed by either an act or omission 

to the continued existence of a violation committed 

by an independent contractor, or (3) when the production-operator's miners are exposed to the hazard, or 

(4) when the production-operator has control over the 

condition that needs abatement." (Emphasis added). 

Here, Phillips I had been decided, and Phillips II had been submitted to 

the judge below for decision prior to the time the Secretary declined to discontinue these cases, abatement had been completed, and between twelve and 

eighteen months had expired since the various citations and order in these 

dockets had been issued. Further, the Secretary had specific authorization 

so to proceed. The then Assistant Secretary of Labor for Mine Safety and 

Health had issued a memorandum dated October 31, 1980 which stated: 

558 
"Effect of New MSHA Independent Contractor Policy on 

Cases Pending at the time of the Policy Change. • •• On 

a case-by-case basis, counsel for the Secretary will 

either dismiss the case against the operator or move 

to join the contractor as a party. No action will be 

taken on fully tried cases or cases submitted on the 

record." (Emphasis added). 

The Secretary's response to the Commission's orders did not therefore represent 

any abuse of discretion, and no precedent to the contrary is cited by the 

majority, since none exi~ts. 

Nor are the facts herein exculpatory of Phillips, which had not only 

selected these contractors, but continually inspected their work and reserved 

the right to terminate their services. The agreements· between Phillips 

and its contractors provide that Phillips' " ••• representatives shall at all 

reasonable times have access to the work wherever it is in preparation or 

progress". (Exhibit 1 .to stipulation at page 3). Of Phillips' sixtyfive contractually enumerated "job title[s]", as of February 1, 1979, nineteen 

were specifically authorized access to the contractor's construction areas. 

Of these, seven were authorized daily entry, ten were permitted entry 

"occasionally," and two on a semi-weekly basis. Five categories of 

Phillips' employees were authorized entry into the contractor's area "to 

maintain Phillips equipment." (Exhibit B to stipulation). 

This periodic intermingling of personnel thus resulted in the exposure 

of Phillips' employees to the hazards here involved on a regular, substantial, 

and continuous basis. Broad participation by Phillips in its contractors' 

operations is perhaps most notably memorialized in its agreements with its 

its contractors, which provide that Phillips "reserves the right of suspending 

the whole or any part of the work to be done hereunder at any time its 

best interest appears to be served by so doing." (Exhibit 1 to stipulation, 

page 11). (Emphasis added). 

The Commission acknowledged the importance of these factors in Republic 

Steel Corporation, supra: 

"It bears emphasis that the miners of an independent 

contractor are invited upon the property of the mine 

owner to perform work promoting the interests of the 

owner. A mine owner cannot be allowed to exonerate 

itself from its statutory responsibility for the safety 

and health of miners merely by establishing a private 

contractual relationship in which miners are not its 

employees and the ability to control the safety of its 

workplace is restricted." 1 FMSHRC 5, 11 (1979). 

The majority's professed concern with the possibility that these violations 

would become part of Phillips history of violations, rather than its contractors, 

and possibly result in increased penalties for Phillips for any subsequent violations is equally baseless. It is sufficient to note that these violations are 

over two years old, and thus cannot, under the Secretary's Regulations, be part 

of Phillips history of violations. 30 C.F.R. 100.3(c). 

559 
While the majority feels that Phillips "could" be subjected to the 

"stringent" section 104(d) sequence of citations and orders, and 104(e) 

pattern of violations provisions of the Act, this prediction is to say 

the least speculative, as well as totally unsupported on the record. The 

majority's anxiety over possible section 104(e) "pattern" violations, 

cannot conceal the fact that such actions have never been instituted against 

Phillips, or any other operator, owner or contr~. Indeed, the Secretary 

over the four year history of this Act, appears to be totally disinterested in 

enforcement of section 104(e). Suggestions to the contrary are consequently 

not only historically unfounded but misleading. 

The majority's unsupported conclusion that the Secretary's decision not 

to discontinue its (successfully tried) actions against Phillips " ••• were not 

consistent with the purpose of the Act and must fail." thus fails to stand up 

to even minimal critical analysis. No owner-operator henceforth need worry 

about penalty proceedings or enforcement under the Act, nor indeed the safety 

or health of miners. It need only contract with or establish a separate 

corporate entity to do shaft sinking, construction, or any other mining 

activities, and thereby contractually evade its responsibility under the Act 

for the safety and health of the miners. 

To understate the case considerably, this hardly seems.in accord with 

the "purpose of the Act" and the protection of the health and safety of the 

miners whom the Congress has declared to be" ••• the first priority and 

concern of all in the coal or other mining industry ••• " Section 2(e). 

To exonerate or pardon an operator found responsible under the Act, 

in particular after full hearings and judicial decisions to the contrary, hardly 

seems designed to improve or insure miner safety and health; indeed, quite 

the contrary. The Secretary saw no reason post-trial to dismiss these 

cases against the mine owner-operator, which had been found legally liable, 

nor do I. 

Contrary to the majority's suggestion, the issue here is not whether the 

Secretary's decisions were "consistent with the purpose of the Act"; it is 

rather whether the Secretary abused his discretion by continuing to proceed 

against the owner-operator. 

There is no basis for the majority to find that the Secretary's decision 

was made for any reason in derogation of either the Secretary's, the Commission's, 

or the courts' mandates. The Secretary's continuing as appellee in these cases-·-, 

was, to the contrary, in full accord and conformity with those commands. This 

owner-operator should not be permitted to contract away its responsibility for 

compliance with the Act, particularly in the context of its very substantial 

involvement with its contractors' operations. 

I therefore dissent. 

A. E. Lawson, Commissioner 

560 
Distribution 

James G. Williams, Esq. 

Phillips Petroleum Company 

Minerals Group 

P.O. Box 3209 

Englewood, Colorado 80155 

George W. Terry, Jr., Esq. 

Malcolm L. Shannon, Jr., Esq. 

Phillips Uranium Corporation 

P.O. Box 26236 

4501 Indian School Road, N.E. 

Albuquerque, New Mexico 87125 

Nancy S. Hyde, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson· Blvd. 

Arlington, Virginia 22203 

': 

Administrative Law Judge John Carlson 

FMSHRC 

333 W. Colfax Ave.,'- Suite 400 

Denver, Colorado 80204 

561 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW CCMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 FEB 241982 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINI~TRATION (MSHA), 

Petitioner 

Docket No. KENT 81-136 

A.O. No. 15-02008-03036 

v. No. 32 Mine 

UNITED STATES STEEL CORP., 

Respondent 

SUMMARY DECISION 

Appearances: Carole Fernandez, Attorney, U.S. Department of Labor, 

Nashville, Tennessee, for the petitioner; Louise Q. 

Symons, Esquire, Pittsburgh, Pennsylvania, for the 

respondent. 

Before: Judge Koutras 

Statement of the Case 

This case concerns a proposal for assessment of civil penalty filed 

by the petitioner against the respondent on July 6, 1981, seeking a civil 

penalty in the amount of $170 for an alleged violation of manda~ory safety 

standard 30 CFR 77.1605(k), as detailed in a section 104(a) citation, 

No. 981185, served on the respondent by MSHA inspector Alex R. Sarke, Jr., 

on January 23, 1981. The condition or practice described by the inspector 

on the face of the citation is as follows: 

The berms provided along the elevated roadway 

leading to the mine were not as high as the 

axle of the largest piece of equipment using 

the roadway in that 3 locations along the roadway 

have berms with less than 22 inches which is the 

height of the axle of the Pettibone tractor used 

at the mine. Location No. 1 is directly across 

from the bathhouse and an area of 29 feet at this 

location has no berm or guardrail. Guardrails 

were installed at one time, but they have been 

dislodged. Location No. 2 is three tenths of a 

mile from the bathhouse and an area of 22 feet 

563 
has a berm of 6 to 8 inches. Location No. 3 is 

i.6 miles from the bathhouse and an accident has 

occurred in this area in that three workmen went 

over the berm and down under the elevated roadway 

in a passenger car. The height of the berm provided 

in this area is 16 inches for a distance of 29 feet. 

This is where the car went over the berm. 

Respondent filed its answer on July 10, 1981, denying the alleged 

violation, and subsequently, by letter filed August 28, 1981, petitioner's 

counsel advised that the parties had conferred with each other a~d 

believe that the material facts are not in dispute and can be stipulated, 

and ~hat the case may be decided on motions for summary decision without 

the necessity for a hearing on the merits. Subsequently, on December 7, 

1981, the parties filed a joint stipulation, setting forth the following: 

1. Number 32 Mine of United States Steel Corporation's 

(USS) Lynch District is subject to the jurisdiction of the 

Mine Safety and Health Administration. 

2. The proceedings in Docket No. KENT 81-136 are properly 

before the administrative law judge. 

3. USS is a large operator and payment of a civil 

penalty will not affect its ability to stay in business. 

4. Citation No. 981185 was issued by a duly authorized 

representative of the Department of Labor. 

5. Citation No. 981185 alleges a violation of 30 CFR 

77.1605(k). 

6. The standard cited states, "Berms or guards shall 

be provided on the outer bank of elevated roadways." 

7. Citation No. 981185 states that there were berms 

along the roadway except at Location No. 1 where the guardrail 

was dislod$ed. 

8. USS claims that it was. in the process of replacing 

the guardrail when the citation was issued; the mine inspector 

saw no evidence of this activity. 

9. The MSHA Surface Manual at page III-338 requires 

that berms must be as high as the axle of the largest piece 

of equipment using the roadway. 

10. An accident in which a car went over the 16-inch 

berm occurred on January 22, 1981. 

11. It has not been determined that a berm of 22 inches 

would have had any different effect on the fact situation of 

January 22, 1981, than a berm of 16 inches. 

564 
Motions for Sunnnary Decision 

By motion and supporting arguments filed December 21, 1981, petitioner 

moves for summary decision in its favor. In support of its motion, 

petitioner asserts that with regard to location No. 1 along the elevated 

roadway which was cited, the parties have stipulated that no berm was 

at that locat'ion and that the guardrail was dislodged and the inspector 

saw no evidence of the claim that respondent was in the process of 

replacing the guardrail at the time the citation issued. Respondent 

maintains that it has established a violation as to that location since 

no berm or guardrail was present. 

With regard to the remaining two locations cited by the inspector, 

petitioner argues that the inspector found a violation on the basis of 

the inadequacy of the existing berms. Petitioner asserts that in its 

interpretation of section 77.1605(k), MSHA applies the definition of 

an adequate "berm" found in 30 CFR 77.2(d), which defines "berm" to 

mean "a pile or mound of material capable of restraining a vehicle". 

Petitioner asserts further that as a minimum standard, MSHA policy 

requires berms to be "at least as high as the mid-axle height of the 

largest vehicle using the roadway". That policy is set· forth in MSHA's 

March 9, 1978, Surface Manual, as well as in a June 30, 1972, publication 

of the Bureau of Mines, Department of the Interior, which contains 

an interpretative "application" of identical berm standards found in 

Parts 55, 56, and 57, Title 30, Code of Federal Regulations. The Surface 

Manual "policy" dealing with section 77.1605(k), provides as follows 

at pg. III-338: 

"Berm" as used in this requirement means a pile 

or mound of material at least axle high to the 

largest piece of equipment using such roadway, 

and as wide at the base as the normal angle of repose 

provides. Where guardrails are used in lieu of berms, 

they shall be of substantial construction. 

The "policy" application set forth in the Bureau of Mines publication 

at PB· 9-5 is as follows: 

Berms shall be at least as high as the mid-axle 

height of the largest vehicle using the roadway. 

They need not be continuous where drainage and 

snow removal may constitute a problem. Guards 

of posts and railings shall be substantially 

equivalent as a restraining medium as berms of 

earth or waste rock. 

Petitioner argues that the respondent has not argued that it was 

unaware of the aforementioned longstanding MSHA policy. Further, while 

there were mounds or berms of earth, rock, or other materials along 

the roadway in question (except for location No. 1), in the judgment 

of the inspector these berms were inadequate to meet the definition of 

565 
"berms" in the "regulations". This is because location No. 2 had 

a 6-to-8-inch berm, location No. 3 had a 16-inch berm, and the height 

of the axle of the largest piece of equipment using the roadway was 22 

inches. In support of its case, petitioner cites the case of Secretary 

of Labor v. Heldenfels Brothers Inc., 2 MSHC 1143, Docket Nos. CENT 79-280-M 

and CENT 79-235-M (1980), where the Judge affirmed a violation of the 

berm requirements of 30 CFR 55.9-22, based on an inspector's opinion 

that the berms provided were not sufficient to restrain the vehicles 

using the elevated roadway. Petitioner points out that in Heldenfels, 

the Judge rejected the operator's argument that there was no violation 

since the existing berm was approximately 18 inches high. Looking at 

the definition of "berm" in the applicable regulations, the Judge found 

that there could be no berm within the meaning of the regulations if 

the mound of material along the roadway was incapable of restraining the 

vehicles using the roadway. 

Conceding that the referenced MSHA policy and guidelines are not 

mandatory requirements imposed on a mine operator, petitioner nonetheless 

argues that in the case at hand, while it would appear from the wording 

of the citation that the inspector considered the general MSHA policy 

in finding that the berms were inadequate to restrain vehicles using the 

roadway in question, such a reference by the inspector to the inspector's 

manual and agency guidelines is not an illegal or arbitrary practice as 

long as the inspector's application of these guidelines and policies 

to his interpretation of the cited standard is not contradictory to the 

intent and clear meaning of the standard, Secretary of Labor v. Empire 

Energy Corporation, 1 MSHC 1751, Docket No. DENV 78-442-P (1979). 

Petitioner argues further that the clear intent of the cited 

standard is to prevent vehicles in use from going over the edges of 

elevated roadways, and since road conditions and the speed of vehicles 

may vary, it may be unreasonable to attempt to insure by testing that 

a berm be sufficient to restrain a vehicle under all circumstanees. 

Assuming normal conditions, petitioner asserts that the height of 

the axle of the vehicle is a reasonable, workable, and clear guide in 

estimating whether or not a berm would be an adequate restraint since 

the wording of the "regulation" indicates that the adequacy of berms is 

tied to the nature of the vehicles used on the roadway. 

In the instant case, petitioner asserts that the inspector was 

aware that a 16-inch berm had proved inadequate to restrain a passenger 

vehicle at one roadway location. Petitioner also asserts that whether 

or not a 22-inch berm would have been effective is not known, because 

the facts and conditions of the accident are unknown; but the prior 

accident is a factor to consider in support of the inspector's determination that the existing berms were inadequate. Under the circumstances, 

petitioner concludes that the respondent cannot show that the inspector 

was arbitrary and unreasonable in his application of the cited standard 

in this case, and that petitioner therefore is entitled to summary 

decision as a matter of law. 

566 
In its motion for summary decision, respondent asserts that since 

it is clear that berms were present along the roadway in question, the 

alleged violation necessarily turns on the belief by the inspector 

that the berms provided were not as high as the axle of the largest piece 

of equipment using the roadway. Since there is no legal requirement 

that berms be as high as the axle of any particular piece of equipment, 

respondent maintains that the citation fails to state a violation and 

must be vacated. 

In support of its case, respondent points out that a berm is 

defined by 30 CFR § 77.2(d) as a pile or mound of material capable 

of restraining a vehicle, and that the cited standard contains no 

requirements pertaining to dimensions of berms, nor does it specify 

materials to be used in constructing berms. Since the standard addresses 

neither the design, construction nor installation of berms, respondent 

argues that the definition of "berm" does little to clarify the standard 

by referring generically to a vehicle, and taken together, the regulatory 

bases for the contested citation do not place the respondent on notice 

as to what is required in the way of berms on elevated roadways; the 

regulations are vague and unenforceable. Respondent maintains that such 

vagueness cannot be cured by publication of an internal MSHA policy 

manual which sets forth agency guidelines for interpretation and 

enforcement of standards. Petitioner admits that such policies are not 

mandatory requirements upon respondent, yet it refers to the disputed 

policy as a minimum standard and suggests that respondent is obligated 

to comply because it did not argue that it was unaware of the policy. 

If the policy cannot be enforced against respondent, whether respondent 

had knowledge of the policy is clearly irrelevant. 

With regard to the petitioner's assertion that the inspector made 

an independent evaluation as to whether the berms were capable of 

restraining a vehicle, respondent observes that the inspector just 

"mechanically applied the internal MSHA policy". Respondent believes 

that a policy which assumes that a berm the height of an axle of a 

vehicle is capable of restraining that vehicle no matter what the speed 

or weight of the vehicle is inherently ridiculous. By mechanically 

applying such an arbitrary policy, respondent suggests that an operator 

could construct berms six feet high, but only one inch thick or the 

operator could construct its berms of feathers. Since petitioner concedes 

that it may be unreasonable to test the sufficiency of a berm to restrain 

a vehicle, respondent asserts that is an implied concession that 

there may be times when no berm is capable of restraining a vehicle 

since every driver knows that under some circumstances the berms and 

guardrails along public highways may help keep an automobile on the road, 

but will not stand up to a direct blow at excessive speed. 

Finally, respondent maintains that the present berm standard is 

so vague and ambiguous that it cannot be enforced, and that MSHA cannot 

correct this problem by publishing internal guidelines for its inspectors. 

If MSHA intends to properly put operators on notice as to precisely 

what is required to comply with the berm standard, it must engage in 

rule making to properly promulgate regulations. It cannot, without 

notice to and opportunity for comment by the operators, enforce an 

567 
arbitrary requirement that berms must be as high as the axle of the 

largest vehicle using the roadway. Respondent argues that the fallacy 

of such a unilateral action and the reason for the required·input from 

interested parties are abvious when the following questions are considered. 

Does "largest" vehicle mean the tallest in terms of axle height or 

heaviest or, perhaps, greatest in overall dimensions? Why should height 

be the determinative criterion when a relatively low, thick berm might 

function better than a high, shallow barrier? Should the berm be 

designed to stop all vehicles, regardless of their speed? HSHA's 

arbitrary criterion of axle height seemingly fails to take any of these 

matters into consideration. Since MSHA developed the criterion unilaterally 

and announced it internally, it cannot be considered a "minimum standard" 

as petitioner contends. Accordingly, respondent maintains that the 

citation should be vacated because it fails to allege a violation of a 

standard, and merely alleges a violation of an internal MSHA policy. 

The policy is not binding on operators and is so far from the stated 

requirements of the standard that it does not clarify or interpret the 

standard. Since the policy imposes arbitrary and capricious new requirements 

and has not been subject to rule making, it cannot be treated as a 

standard. 

Findings and Conclusions 

Fact of Violation 

In this case, the respondent is charged with ~ violation of 

the provisions of section 77.1605(k). However, the citation details 

three specific locations where the inspector believed the be~ms which 

were present were inadequate. The first location had no berms at all, 

and since a guardrail which had been installed at that location had been 

dislodged, the inspector apparently took the position that no berm was 

present. The height of the existing berms at the other two locations 

were less than 22 inches. Since the axle height of a tractor used at 

the mine is 22 inches, the inspector obviously applied this axle height 

as the standard which he believed the respondent should have used in 

the construction of the required berms. Although it is not altogether 

clear from the stipulations entered into by the parties, for the purposes 

of my decision in this case I will assume that the tractor mentioned in 

the citation by the inspector is in fact the largest piece of equipment 

using the roadway in question, and that the inspector relied on this 

"axle-height" test as detailed in the MSHA policy guidelines referred 

to by the parties in their respective supporting arguments when he issued 

the citation. 

Although one would think that the intent of section 77.1605(k) is 

to prevent men and equipment driving along an elevated roadway from going 

over the elevated and unprotected edge of the roadway, the broad and 

general language of the standard, as embellished by the regulatory 

definition of the term "berm", leaves much to the imagination. The 

language of the standard simply requires that berms or guards "be provided". 

The term "berm" is defined by section 77.2(d), as "a pile or mound of 

material capable of restraining a vehicle", but the term "guard" is not 

further defined. The standard has been the source of much litigation and 

interpretation, and a representative sampling follows below. 

568 
In MSHA v. W. B. Coal Company, LAKE 79-218, January 14, 1981, the 

operator was charged with a violation of section 77.1605(k) because an 

inspector believed that the existing berms which ranged from six inches 

to 24 inches along a 50-to-60 foot stretch of roadway were inadequate. 

The operator testified that he was never advised that berms were required 

to be of any specific height, but that prior to the issuance of the citation 

he had been advised by an inspector that three feet would be adequate 

to restrain a vehicle. The inspector who cited the violation applied 

MSHA's "policy" that berms should be the height of the axle on the largest 

machine which travels a roadway, which would have been 42 inches. In 

affirming the citation, the Judge ruled that MSHA's policy of axle height, 

or 42 inches, was not binding on the operator because the operator had 

no knowledge of the requirement. However, the Judge ruled that implicit 

in the standard is a requirement that the berms be of reasonable height to 

offer protection, and he relied on the definition found in section 77.2(d) 

for reaching this conclusion. 

In MSHA v. Heldenfels Brothers, Inc., DENV 79-575-M, the Judge affirmed 

a violation of the berm "requirements of section 55.9-22'; and while he 

recognized that the standard does not provide criteria by which the minimum 

height of berms might be determined, he nonetheless accepted the inspector's 

"rule of thumb" to the effect that a berm must be as high as the axle of 

the largest vehicle using the road, and ruled as follows at pg. 855, 

FMSHRC, Vol. 2, No. 4, April 1980: 

The largest vehicles using this section of roadway were 

Respondent's scrapers. These scrapers had a wheel height 

of approximately 6 feet and, therefore, an axle height of 

approximately 2 feet high--1 foot lower than the height which 

would be required if the rule of thumb applied. 

The inspector, in relating experiences with scrapers sim~lar 

to those used by Respondent and with ridge rows of different 

heights, stated that the scrapers would go over "a two foot 

deal all the time." Although the ridge rows were not of 

exactly the same material, consistency, and size of the berms, 

the inspector obviously was knowledgeable concerning the type 

of berm that would contain equipment used at the mine. 

In MSHA v. Bishop Coal Company, WEVA 80-41, July 14, 1980, the Judge 

rejected the notion that small piles of rocks or debris along an elevated 

roadway constituted a berm. He ruled that the requirement of section 77.1605(k), 

that berms or guards shall be provided means that they must be adequate to 

prevent overtravel of the outer bank. The facts of the case as reported 

by the Judge indicated that a truck had gone over a bank at a dumping 

location, and he obviously concluded that the piles of rock or debris were 

inadequate. Interestingly, while the inspector and mine superintendent 

disagreed as to whether even the bern which was installed for abatement 

would be sufficient to prevent the occurrence of the accident, both 

agreed that under certain circumstances the berm would be sufficient. 

569 
In MSHA v. Texas Utilities Generating Company, DENV 78-487-P, 

April 5, 1979, the Judge affirmed a violation of section 77.1605(k), 

for failure to provide berms or guards on a portion of a haulroad. The 

inspector who issued the citation was of the opinion that the berms would 

not prevent a haulage truck which was out of control from running off the 

roadway, but he indicated that they might be of assistance in guiding a truck, 

thereby keeping it on the roadway. 

In MSHA v. El Paso Rock Quarries, Inc., DENV 79-139-M, December 17, 1979, 

the Judge affirmed a violat~on of section 56.9-22; and while he rejected 

the inspector's notion that berms would stop a fully loaded truck, he did 

accept the fact that they would serve as a visual warning as to the location 

of the edge of the roadway, and could possibly slow a truck down enough 

to give the driver sufficient time to jump. 

As noted in the foregoing summary of prior decision dealing with the 

berm standard, there is no consistent application of the standard, and this 

leads me to conclude that there is merit to the arguments advanced by 

the respondent in this case with regard to its assertion that the language 

of section 77.1605(k) is so vague and broad that it fails to give an 

operator adequate notice as to what is required for compliance. One would 

think that after all of the litigation generated by this standard, that 

MSHA would initiate appropriate rule-making with a view to amending the 

present language of the standard, or at least publishing specific criteria 

as part of the published standards for industry guidance, rather than 

relying on internal "policy" guidelines which all to often are not 

communicated to a mine operator who is expected to comply with those 

guidelines. 

On the facts presented in this case, it seems clear to me that 

the inspector applied the literal requirements of MSHA's internal policy 

guidelines with regard to the height requirements for berms as if they. 

were part of the published mandatory standard, and petitioner's references 

in its supporting arguments that he applied the "regulations" leads me 

to conclude that petitioner also believes that an MSHA inspector has 

the authority or discretion to expand upon the plain meaning of a standard 

by incorporating unpublished policies as if they were mandatory requirements. 

I reject petitioner's semantical assertions that the inspector's application 

of MSHA's internal policy guidelines were not arbitrary and did not contradict the intent and clear meaning of the standard. To the contrary, 

I agree with the respondent's arguments that the inspector obviously 

applied the MSHA "axle-height" guidelines in this case. He obviously 

determined that the height of the axle on the tractor was 22 inches, 

and they any berms constructed on an elevated roadway where that tractor 

or other equipment were likely to be used would also have to be constructed 

at a minimum height of 22 inches. It seems to me that if an inspector can 

apply such a simple mechanical formula to a regulation requiring berms, 

then it should be a simple matter for MSHA to indulge in rule-making 

adopting such an application in a published regulation that would apply 

across the board to all mine operators. 

570 
The parties are in agreement that MSHA's internal policy guidelines 

do not have the force and effect of a published regulatory mandatory safety 

standard, and that a mine operator is not obliged to follow them. Petitioner's 

arguments that the respondent was aware of these policies is immaterial 

and irrelevant. The fact that a mine operator is aware of a policy that 

is not a mandatory standard does not subject that operator to a civil 

penalty assessment for violation of the policy. In my view, MSHA should 

concentrate its efforts into promulgating standards which are clear 

and to the point, rather than indulging in the promulgation of policy 

memoranda which all to often lead to ambiguous and inconsistent enforcement. 

In view of the foregoing, and after careful consideration of the 

arguments advance by the parties in this case, I conclude and find that the 

respondent has the better part of the argument. I adopt and accept the 

respondent's ar,guments in support of its case, and reject those advance 

by the petitioner. In short, I conclude and find that the inspector exceeded 

his authority and acted arbitrarily in adopting MSHA's policy guidelines 

as if they were part and parcel of section 77.1605(k). I further conclude 

and find that the present language found in section 77.1605(k), is so vague 

and ambiguous as to render it unenforceable, particularly when MSHA attempts 

to embelish it through policy guidelines adopted internally rather than 

through the rule-making processs provided for in the Act. In these circumstances, I further conclude and find that the citation in question should 

be VACATED. 

ORDER 

On the basis of the foregoing findings and conclusions, IT IS ORDERED 

that Citation No. 981185, issued on January 23, 1981, citing an alleged 

violation of 30 CFR 77.1605(k) is VACATED, and this proceeding is DISMISSED. 

Distribution: 

Carole Fernandez, Esq., U.S. Department of Labor, Office of the Solicitor, 

280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203-3890 (Certified Mail) 

Louise Q. Symons, Esq., U.S. Steel Corp., 600 Grant St., Rm. 1580, Pittsburgh, 

PA 15230 (Certified Mail) 

571 
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, Complaint of Discharge, 

MINE SAFETY AND HEALTH Discrimination, or Interference 

ADMINISTRATION (MSHA), 

Docket No. CENT 80-339-D 

On behalf of 

GEORGE W. HEINEY AND 

JOHN GHRAMM, 

Green Country Mine 

Complainants 

v. 

LEON'S COAL COMPANY, 

LEON WALKER, AND ROBERT HARTLEY, 

Respondents 

Appearances: 

Before: 

DECISION FINDING JURISDICTION AND APPROVING SETTLEMENT 

Eloise Vellucci, Esq., Office of the Solicitor, U.S. 

Department of Labor, Dallas, Texas, for Complainants; 

Jot Hartley, Esq., Pitcher, Castor and Hartley, Vinita, 

Oklahoma, for Respondents, Leon's Coal Company and Robert 

Hartley; 

Ross Hutchins, Esq., Tulsa, Oklahoma on behalf of Complainant 

Leon Walker; 

Lance A. Pool, Esq., Pitchard, Norman and Wohlguth, 

Tulsa Oklahoma for the Trustee in Bankruptcy. 

Judge Melick 

This case is before me upon the complaints by the Secretary of Labor 

on behalf of George W. Heiner.~nd John Ghramm, under section 105(c)(2) of 

the Federal Mine Safety and Health Act of 1977, 1/ 30 u.s.c. § 801 et seq., 

1/ Section 105(c)(2) of the Mine Safety Act reads as follows: 

"Any miner or applicant for employment or representative of miners who 

believes that he has been discharged, interfered with, or otherwise discriminated against by any person in violation of this subsection may, within 

60 days after such violation occurs, file a complaint with the Secretary 

alleging such discrimination. Upon receipt of such complaint, the Secretary 

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

investigation to be made as he deems appropriate. Such investigation shall 

commence within 15 days of the Secretary's receipt of the complaint, and if 

572 
the "Mine Safety Act," alleging that Leon's Coal Company, a partnership, and 

Leon Walker and Robert Hartley, as individuals, discharged Heiney and Ghramm 

in violation of section 105(c)(l) of the Act. 2/ An evidentiary hearing 

commenced March 16, 1982. On March 17, 1982, the parties proposed an 

agreement to settle the case. 

fn. 1 (continued) 

the Secretary finds that such complaint was not frivolously brought, the 

Commission, on an expedited basis upon application of the Secretary, shall 

order the immediate reinstatement of the miner pending final order on the 

complaint. I £upon such investifation, the Secretary determines that the 

provisions of this subsection have been violated, he shall immediately file 

a complaint with the Commission, with service upon the allged violator and 

the miner, applicant for employment, or representative of miners alleging 

such discrimination or interference and propose an order granting appropriate 

relief. The Connnission shall afford an opportunity for a hearing (in 

accordance with section 554 of title 5, United States Code, but without 

regard to subsection (a)(3) of such section) and thereafter shall issue an 

order, based upon findings of fact, affirming, modifying, or vacating the 

Secretary's proposed order, or directing other appropriate relief. Such 

order shall become final 30 days after its issuance. The Commission shall 

have authority in such proceedings to require a person committing a violation 

of this subsection to take such affirmative action to abate the violation as 

the Commission deems appropriate, including, but not limited to, the rehiring 

or reinstatement of the miner to his former position with back pay and 

interest. The complaining miner, applicant, or representative of miners may 

present additional evidence on his own behalf during any hearing held 

pursuant to his paragraph." 

2/ Section lOS(c)(l) of the Mine Safety Act reads as follows: 

- "No person shall discharge or in any manner discriminate against or 

cause to be discharge 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 operato~·or the operator's agent, or the representative 

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

health violation in a coal or other mine, or because such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential transfer under a standard published pursuant to section 

101 or because such miner, representative of miners or applicant for employment has instituted or caused to be instituted any proceeding under or related 

to this Act or has testified or is about to testify in any.such proceeding, 

or because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right 

afforded by this Act. 

573 
Jurisdiction 

At hearing, the Respondent's and the trustee in bankruptcy had alleged 

that the Federal Mine Safety and Health Review Commission had no jurisdiction 

to proceed with this case in light of the filing by Leon's Coal Company of 

a petition for bankruptcy (Civil Action No. 80-00873 in the United States 

Bankruptcy Court, Northern District of Oklahoma, Tulsa Division). They 

argued that these proceedings were automatically stayed by the Bankruptcy Act 

of 1978 and, in particular, under the provisions of 11 U.S.C. § 362(a)(l). At 

hearing, I held in a bench decision that enforcement proceedings before the 

Federal Mine Safety and Health Review Commission brought by the Secretary of 

Labor under section 10S(c)(2) of the Mine Safety Act come within a statutory 

exception to the automatic stay provisions of the Bankruptcy Act. 

The automatic stay provisions under 11 U.S.C. § 362 read in part as 

follows: 

(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of 

this title operates as a stay, applicable to all entities, 

of -

(1) the commencement or continuation, including the 

issuance or employment of process, of a judicial, administra~ 

tive, or other proceeding against the debtor that was or 

could have been commenced before the commencement of the case 

under this title, or to recover a claim against the debtor 

that arose before the commencement of the case under this 

title; * * * 

Exceptions to the automatic stay are also provided under 11 U.S.C. 

§ 362 and one of those exceptions reads as follows: 

(b) The filing of a petition under section 301, 302, or 

303 of this title does not operate as a stay - * * * 

(4) under subsectigns (a)(l) of this section, of the 

commencement or continuation of an action or proceeding by a 

governmental unit to enforce such governmental units police 

or regulatory power; (5) under subsection (a)(2) of this 

section, of the enforcement of a judgment, other than a money 

judgment, obtained in an action or proceeding by a governmental unit to enforce such governmental units police or 

regulatory power; 

Since the Department of Labor is clearly a governmental unit the only issue 

is whether this case was one to enforce the police or regulatory powers of 

that governmental unit. The instant action was brought under the provisions 

of section 105(c)(2) of the Mine Safety Act to enforce the Federal law regulating certain relationships between mine operators and miners and to prevent 

574 
retaliation by mine operators against miners exercising rights protected 

under the Mine Safety Act. Footnotes 1,/ and ];_/ supra. This is clearly an 

exercise of police and regulatory powers which places this proceeding within 

the section 362(b)(4) exemption to the automatic stay. NLRB v. Evans 

Plumbing Company, 639 F.2d 291 (5th Cir. 1981); In re Bel""Air Chateau 

Hospital, Inc., 611 F.2d 1248 (9th Cir. 1979), and In the Matter of Shippers 

Interstate Service, Inc., 618 F.2d 9 (7th Cir. 1980). Accordingly, in spite 

of the pendency of bankruptcy proceedings this Commission retained jurisdiction to proceed with hearings in the captioned case and to issue a decision 

and order approving settlement. 

Proposal for Settlement 

During the hearings in this case, the Secretary proposed a settlement 

agreement wherein George W. Heiney would receive a back pay award of $3,650, 

John Ghramm would receive a back pay award of $2,440, and the Complainants 

and the Secretary would withdraw all other claims in the case including the 

Secretary's request for a civil penalty. The individual Complainant's, 

Mssrs. Heiney and Ghrannn consented to the proposal on the record and I find 

that consent to have been intelligent and voluntary. The Respondent's, 

through counsel, also accepted the proposal on the record. Under all the 

circumstances, I found that the settlement was appropriate. That bench 

determination is now affirmed. 

ORDER 

Leon's Coal Company, Leon Walker, and Robert Hartley are hereby ORDERED 

TO PAY George W. Heiney the sum of $3,650 as an award of back pay within 

30 days of the date of this decision. 

Leon's Coal Company, Leon Walker, and Robert Hartley are FURTHER ORDERED 

TO PAY John Ghrannn the sum of $2,440 as an award of back pay within 30 days 

of the date of this decision. 

The request of the Secretary of Labor to withdraw 

civil penalty is GRANTED. 

The Complaint herein is DISMISSED. 

575 

proposal for a 
Distribution: (By certified mail) 

Eloise Vellucci, Esq., Office of the Solicitor, U.S. Department of 

Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 75202 

Jot Hartley, Esq., Pitcher, Castor and Hartley, Vinita Professional 

Building, P.O. Box 492, Vinita, OK 74301 

Ross Hutchins, Esq., 3414 South Yale, Tulsa, OK 74135 

Lance A. Pool, Esq.,-Pitchard, Norman and Wohlguth, 909 Kennedy Building, 

Tulsa, OK 74103 

576 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR APR 6 198'l 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HELVETIA COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. PENN 82-42 

A/O No. 36-00917-03117 

Lucerne No. 6 Mine 

DECISION AND ORDER 

This matter came on for a confrontational hearing in Falls Church, 

Virginia on April 1, 1982. The sole issue presented was whether a twoinch cut in a trailing cable that exposed the undamaged insulated power 

wires in an abrasion repair to the cable actually existed. The·parties 

stipulated that if the violation did occur it was a nonserious, nofault 

violation that created no immediate or forseeable shock hazard absent 

damage to the dielectric strength of the insulation on the power wires. 

The gravamen of the violation was that the claimed two-inch cut deprived 

the cable of the full protection mandated by 30 C.F.R. 75.517. 

After the parties and trial judge had a full opportunity to examine 

the three eyewitnesses the parties elected to waive the filing of posthearing briefs and to submit the matter for a jury verdict decision. 

Whereupon, the trial judge found that, without attempting to resolve 

in detail all of the conflicts in the testimony, the preponderance of the 

reliable, probative and substantial evidence showed it more probable than 

not that the violation charged did not, in fact, occur. 

The premises considered, therefore 

decision be, and hereby is, CONFIRMED 

Distribution: 

't is ORDERED that the bench 

case DISMISSED. 

Judge 

Thomas R. Hurd, Esq., Office of the Solicitor, U.S. Department of Labor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

John S. Lopatto III, Esq., Freedman, Levy, Kroll & Simonds, 1730 K 

St., NW, Suite 1100, Washington, DC 20006 (Certified Mail) 

577 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

(UMWA), 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Intervenor 

Petitioner 

CONSOLIDATION COAL COMPANY, 

Respondent 

Contest of Citation 

Docket No. WEVA 82-3-R 

Citation No. 857536; 8/31/81 

Civil Penalty Proceeding 

Docket No. WEVA 82-105 

A.C. No. 

McElroy Mine 

DECISION 

Appearances: 

Before: 

Jerry F. Palmer, Esq., Pittsburgh, Pennsylvania, for 

Consolidation Coal Company; 

David Bush, Esq., Offi~e of the Solicitor, U.S. Department 

of Labor, Philadelphia, Pennsylvania, for the Secretary of 

Labor; 

Joyce Hanula,.~ashington, D.C. for Intervenor, United Mine 

Workers of America. 

Judge Melick 

These consolidated cases are before me pursuant to sections 105(a) and 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et ~·, the "Act" to contest a citation issued to the Consolidation. Coal 

Company (Consolidation) pursuant to section 104(a) of the Act (Citation 

No. 857536) and for review of a civil penalty proposed by the Mine Safety 

and Health Administration (MSHA), for that citation. The issue before me 

is whether Consolidation violated the regulatory standard at 30 C.F.R. 

§ 48.lO(a) as alleged in Citation No. 857536 and, if so, the appropriate 

civil penalty to be assessed for that violation. An evidentiary hearing on 

this issue was held in Morgantown, West Virginia, on March 9, 1982. 

578 
The citation at bar was issued by MSHA Inspector Kenneth Williams on 

August 31, 1981, and alleged as follows: 

Training was not conducted during normal working hours 

for 10 of the 19 employees who received annual training on 

August 8, 1981,_on the 8 to 4 p.m. shift. Nine employees 

Yoho, Whitlatch, Ice, Smith, Studenc, Edgell, Crow, Campbell, 

and Robinson were normally working the 4 to 12 p.m. shift. 

The other employee Robert Hess was normally working the 

12 to 8 a.m. shift. Training was conducted by Wayne 

Mccardle. 

The cited regulatory standard, 30 C.F.R. § 48.lO(a), reads as follows: 

"Training shall be conducted during normal working hours; miners attending 

such training shall receive the rate of pay as provided in section 48.2(d) 

(definition of normal working hours) of this subpart A." 

Section 48.2(d) referred to above provides as follows: 

"Normal t<.Torking hours" means a period of time during 

which a miner is otherwise scheduled to work. This definition does not preclude scheduling training classes on the 

sixth or seventh working day if such a work schedule has been 

established for a sufficient period of time to be accepted as 

the operator's common practice. Miners shall be paid at a 

rate of pay which shall correspond to the rate of pay they 

would have received had they been performing their normal 

work task. 

The essential facts in this case are not in dispute. On Saturday, 

August 8, 1981, Consolidation conducted a federally mandated training session 

on the 8 a.m. to 4 p.m. shift. During the 5-day period immediately preceding 

August 8th, nine of tha ten employees listed in the citation as having 

attended the training session had been working on the 4 p.m. to 12 midnight 

shift and one had been working the 12 midnight to 8 a.m. shift. The mine 

regularly operated on three shifts and the parties stipulated at hearing that 

it was common practice at the mine for all three shifts to work on Saturdays. 

The company had the right to ~equire such Saturday work and indeed had exercised that right in the past. 

It is also undisputed, that Consolidation had the right to "cross-shift" 

the miners during the week and on Saturdays and had exercised that right in 

the past. 1/ It is clear under the circumstances that all 10 of the miners 

listed in the citation could therefore have been properly cross-shifted on 

1/ Cross-shifting is the practice of changing a previously scheduled work 

shift during the week. Thus for example, a miner scheduled in a particular 

week to work the 8 to 4 shift would be switched mid-week to the 4 to 12 

shift. 

579 
Saturday, August 8, 1981, to perform work at the McElroy Mine on the 8 a.m. 

to 4 p.m. shift. Since the miners could have been otherwise scheduled to 

work during that period of time and since such work was a "common practice" 

at the mine, I conclude that that period of time was within "normal working 

hours" as defined in 30 C.F.R § 48.2(d). It follows that Consolidation in 

fact did properly conduct its training program during that period of time and 

that it was therefore not in violation of the cited standard. The citation 

accordingly must be vacated. 

ORDER 

Citation No. 857536 is VACATED and the 

is GRANTED. Civil Penalty Proceeding, Dock 

Distribution: 

Jerry F. Palmer, Esq., Consolidation 

Road, Pittsburgh, PA 15241 (Certified 

Law Judge 

. . 

David Bush, Esq., Office of the Solicito U.S. Department of Labor, 

Room 14480 Gateway Building, 3535 Market Stree.t, Phila,delphia, 

PA 19104 (Certified Mail) 

Joyce Hanula, Esq., United Mine Workers of America, 900 ~5th Street, 

N.W. Washington, DC 20005 

580 
FEDERAL MINE SAFETY AND HEAL TH· REVIEW COMMISSION 

OFFl.CE 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), Docket No. VA 81-15 

Petitioner A.C. No. 44-01647-03014 

v. 

No. 3 Mine 

BETTY B. COAL COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

James P. Kilcoyne, Jr., Esq., and David T. Bush, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for Petitioner; 

John M. Carpenter, Clintwood, Virginia, for Respondent. 

Judge Melick 

This case is before me upon a petition for assessment of civil penalties under section llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq., the "Act." The Secretary initially proposed penalties of $122 for two alleged violations on August 5, 1980, of the mandatory 

safety standard at 30 C.F.R. § 75.1710 charging that Betty B. Coal Company, 

Inc. (Betty B.), was operating two of its Fletcher roof-bolting machines 

without canopies in a section of the No. 3 Mine in which the mining height 

was 51 to 60 inches. The parties thereafter proffered an oral proposal for 

settlement ·of the case. In light of the unusual facts presented, however, 

I denied the proposal as inappropriate under the criteria set forth in 

section llO(i) of the Act. l/ 

1/ Section llO(i) of the Act requires consideration of the following 

criteria in determining the amount of civil penalty to be assessed: (1) the 

operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the 

operator was negligent, the effect on the operator's ability to continue in 

business, the gravity of the violation, and the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance after notif ication of a violation. 

581 
The general issues in this case are whether Betty B. has violated the 

cited standard as alleged and, if so, the appropriate civil penalty to be 

assessed for the violations. The specific issue is whether there is a conflict b~tween State and Federal regulations on the subject matter at bar and, 

if so, what is the effect of such conflict upon the resolution of the general 

issues. The operator has waived its right to a hearing, and the parties 

submit the issues on a joint stipulation of facts. The essential factual 

stipulations were submitted as follows: 

1. On August 5, 1980, Manuel Hairston, a coal mine inspector for the 

Federal Mine Safety and Health Administration Department of Labor (MSHA), 

performed an inspection at the Betty B. No. 3 Mine. During the course of 

this inspection, Hairston observed that the protective canopies had been 

removed from the two roof bolters being used in the 3-Main 001 Section. 

The inspector noted that the coal height in this section of the mine ranged 

from 51 to 60 inches. As a result of these observations, Inspector Hairston 

issued valid section 104(a) citations for violations of 30 C.F.R. § 75.1710 

(Citation Nos. 0689415, A and B). 2/ The inspector opined tharwithout such 

canopies the machine operators could be injured by a roof fall. He thought 

such an event was unlikely, however, because the subject mine did not have 

a history ~f roof falls. 

2. On August 4, 1980, the day before the above-described Federal 

inspection, Jerald T. Hileman, a mine inspector with the Virginia Division 

of Mines and Quarries, had performed a regular inspection at the same mine. 

During this inspection, Hileman issued an Order of Closure which required 

the operator to remove the canopies from the subject roof-bolting machines 

because of insufficient clearance (See, Order of Closure, attached hereto 

as Exhibit A). 1/ Hileman noted that the two canopies were 58 inches in 

2/ The citations read as follows: 

"The canopies in the 3-Mains 001 Section had been removed from the 

2 Fletcher roof bolter9 which are being used [sic] bolt the roof in that 

suitable canopies were not provided for such equipment the coal height 

ranges from 51-60 inches." 

1/ The State regulations governing the installation and use of cabs and 

canopies read as follows: 

"To provide the minimum protection, a registered engineer must certify 

to the Chief Mine Inspector that the cab or canopy proposed to be used meets 

the following minimum standards outlined below: 

"Rule 1. It must be designed for the mine in which it will be used. 

"Rule 2. So installed that the.minimum structural capacities will support a dead load weight of 18,000 pounds. It must be structurally strong 

enougp to withstand a side load of 4,000 pounds. 

"Rule 3. The deck plate or mounting must withstand the same load which 

the cab or canopy is designed to support. Where possible the structure must 

be mount6d on the main frame of the equipment. 

"Rule 4. Cabs or canopies must have a minimum of six inches of overhead clearance below the lowest projection of the roof or roof supports, if 

it extends above the machine on which it is mounted. 

582 
height while the height of the roof and roof support in this section of the 

mine was 52 inches. 4/ Hileman found that the canopies were disturbing the 

roof-control measures in many areas of this section. On August 4, 1980, 

State Inspector Hileman reinspected the section. He thereafter issued a 

Notice of Correction finding that the operator had complied with the Order 

of Closure by removing the canopies from the two roof bolters in question 

and allowed the operator to resume production. (See, Notice of Correction, 

attached hereto as Exhibit B.) ~-

3. MSHA Citation Nos. 689415A and 689415B were abated after the operator replaced the canopies (at a height of 58 inches) on the two roof-bolting 

fn. 3 (continued) 

"A. The Mine inspector may require twelve inches (12") of overhead clearance if evidence is present that indicates that more clearance 

is needed. 

"B. Where the seam height is less than seventy-two inches (72"), 

special attention must be given to the design before any cabs or canopies 

are installed. 

"Rule 5. The visibility of the operator shall not be obstructed by 

the desgin [sic] of the cabs or canopy to the extent that the operator must 

'lean' out of the structure to see where he is going. 

"Rule 6. The structure shall be wide enough to protect the operator 

from side obstructions such as ribs, overhangs, timbers, etc. 

"A. The structure shall also be large enough so as not to restrict 

the operator to the extent that it would be hazardous for him to operate the 

machine. 

"Rule 7. Cabs or canopies that are adjustable must have a minimum 

clearance between segments. The bolt or pin used must withstand more than 

the shear weight of the designated load capacity. 

"Rule 8. The top plate must be 'beveled' in the direction of travel to 

lessen the likelihood Qf dislodging or loosening roof supports. 

"Rule 9. Any other act or practice considered by the Mine Inspector to 

be hazardous to the operator of the equipment or other mine personnel will 

result in an order requiring corrective measures. 

"Rule 10. Cabs or canopies for roof bolting machines will not be 

accepted as the sole means of-temporary roof support unless they have been 

approved by the Chief Mine Inspector. They must be so designed as to be 

firmly positioned against the roof and mechanically held in place until 

permanent supports are installed. Unless the cab or canopy covers the 

entire area of unsupported roof to be bolted, safety jacks, or ot~er 

adequate temporary supports, shall be installed in conjunction with the 

cab or canopy as prescribed in the ro9f support plan for the mine in which 

they are to be used. 

"Any violations of the above discovered by the State Mine Inspector shall 

result in a closure order being issued stating what constitutes the unsafe 

condition observed and the order shall specify that the equipment in question 

is not to be operated until the unsafe condition is corrected." 

!!_/ There was apparently an error in transposing these measurements. 

583 
machines in question. The violations were abated in a timely fashion and 

the operator demonstrated good faith in attaining abatement. 

4. As of this time, there is no agreement between the Virginia Division 

of Mines and Quarries and MSHA to resolve conflicts in the enforcement of 

their canopy standards. Each agency enforces its particular canopy standard 

as it sees fit without regard to the enforcement practices of the other 

agency. 

5. Betty B. is a small operator within the meaning of the Act and 

assessment of a civil penalty in this proceeding will not adversely affect 

the operator's ability to continue in business. 

Evaluation of the Evidence 

It is not disputed that under the cited Federal regulation, Betty B. was 

required to provide its roof-bolting machines with ''substantially constructed 

canopies, or cabs, to protect the miners operating such equipment from roof 

falls and from rib and face rolls." It is apparent, moreover, that the operator was in compliance with the cited standard on August 4, 1980, the day 

before the Federal inspection but, because of this compliance, was found in 

violation of an apparently conflicting State regulation. An inspector for 

the Virginia Division of Mines and Quarries had effectively compelled the 

operator to remove the Federally required canopies from the subject roofbol ting machines by a closure order issued on August 4. In other words, by 

complying with the State order on August 4, the operator was placed in a 

position of violating the Federal regulation. For purposes of determining 

whether there was a violation in the instant case, however, the question of 

such a conflict is immaterial. While limited concurrent State authority to 

regulate mine safety is recognized under the Act, it is clear that in the 

event of a conflict, the Federal regulation will supercede the State regulation. Section 506 of the Act. See also Rice v. Board of Trade, 331 U.S. 

247, 91 L.Ed 1468, 67 S. Ct. 1160, and H~ Welch Company v. New Hampshire, 

306 U.S. 79, 84 L.F.d 5~0, 59 S. Ct. 438. Within this framework of law, I 

am compelled to find on the undisputed facts of this case that the Federal 

standard has been violated as charged. 

Apparently the Federal ~~d State regulators have not to this date been 

able to resolve their enforcement differences in this regard. In the future, 

in fairness to the operator, if such conflicts cannot be resolved and the 

Secretary is convinced that the interests of safety are best protected by 

compliance with the Federal standard, I would expect the Secretary to 

initiate injunctive proceedings to bar State interference with the enforcement of the Federal standard. Of course, the operators themselves are not 

without legal recourse and may wish to initiate modification of the application of the Federal standard under section lOl(c) of the Act or seek injunctive remedies against conflicting State enforcement activities. 

While it is no defense to the violation that the operator was placed in 

a position of noncompliance because of State regulatory action, this factor 

is indeed a relevant consideration in determining whether the operator was 

negligent and the amount of penalty to be imposed. Since it is apparent from 

584 
the factual stipulations in this case that Betty B. was in violation of the 

Federal standard only because of its efforts to comply with conflicting State 

regulations, I find that it was not negligent in committing the violations. 

Accordingly, only a nominal penalty is warranted. 

ORDER 

Betty B. Coal Company, Inc., is ORDERED to pay 

of $1 within 30 days of the date of this decision. 

Distribution: 

James P. Kilcoyne, Jr., Esq., Office f the Solicitor, U.S. Department 

of Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia, 

PA 19104 (Certified Mail) 

David T. Bush, Esq., Office Office of the Solicitor, U.S. Department of 

Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia, 

PA 19104 (Certified Mail) 

John M. Carpenter, Esq., Clintwood, VA (Certified Mail) 

585 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ELMER WAYNE STATON, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Complaint of Discrimination 

Complainant 

Docket No. VA 82-4-DM 

KAYNITE MINING CORPORATION, 

Respondent 

East Ridge Plant 

DECISION AND ORDER 

Pursuant to notice the captioned discrimination complaint came on 

for an evidentiary hearing in Roanoke, Virginia on April 6 and 7, 1982. 

At the outset of the hearing the trial judge heard argument on a 

motion by complainant's attorney for leave to withdraw and for a thirty 

day continuance to permit complainant to find new counsel. The latter 

motion was opposed by counsel for the operator. The matter was resolved 

when complainant agreed to proceed pro se and the operator agreed the 

trial judge might assist complainant in developing the facts. The 

operator also agreed to produce three witnesses complainant claimed he 

needed to present his case. !/ 

After extensive settlement discussions in which complainant offered 

to withdraw his request for reinstatement, the matter proceeded to 

hearing. As the evidence was developed several recesses were held for 

the purpose of allowing the parties to seek an accommodation and compromise 

of their positions. The trial judge participated fully in these discussions to the end that the rights of both parties would be protected 

and a fair resolution of the matter expedited. When a settlement could 

not be reached, the matter was recessed overnight and the taking of 

evidence continued the second day. 

After hearing testimony from ten witnesses, including complainant 

the parties rested, waived further argument or the filing of post-hearing 

briefs, and requested an innnediate bench decision. Whereupon, the trial 

judge rendered the following decision: 

!/ Counsel for the operator is to be commended for his cooperation in 

ensuring a fair and expeditious disposition of this matter. 

586 
After considering and weighing the evide~ce, including the 

demeanor and credibility of the witnesses, I find a preponderance 

of the reliable, probative and substantial evidence shows that 

Elmer Wayne Staton's perception of an abnormally dangerous or 

hazardous condition at the fluid bed dryer at Kyanite Mining 

Company's East Ridge Plant on July 24, 1981 was reasonable under 

the circumstances. 

In reaching this conclusion, I have credited fully not only 

Mr. Staton's testimony but also that of Wayne Davenport. I 

recognize other perceptions differ from that of the credited 

witnesses and that from a purely objective standpoint there is 

evidence to support the view that the perception of the credited 

witnesses was unreasonable. Nevertheless, under the evidentiary 

standard set by the Commission in the case of Thomas Robinette v. 

United Castle Coal Company, 3 FMSHRC 802, at 809-812 (1981), I 

feel constrained to hold that Mr. Staton's perception, as corrobated 

by that of Mr. Davenport, requires a finding that his refusal to 

work under the apprehension of a burn hazard was reasonable even 

though others, including the trial judge, might reasonably conclude 

his fear was unrealistic. 

The premises considered, therefore, I hold that Mr. Staton's 

dismissal for refusal of the work assignment in question was 

unlawful under section lOS(c) of the Mine Safety Law. 

Accordingly, it is ORDERED ~hat a finding of liability subject 

to immediate appeal be, and hereby is, entered and that further 

proceedings with respect to the relief requested by complainant be, 

and hereby are, stayed pending the outcome of such appeal. 

Thereafter, the parties, without the knowledge or presence of the trial 

judge, adjourned to discuss further a settlement of this matter. They 

shortly advised the judge that a settlement had been reached and the 

record was reopened. At that time counsel for the operator stated that 

the matter had been settled on the following terms and conditions, 

namely that in return for the operator foregoing its right of appeal and 

the payment of a sum certain complainant had agreed to a dismissal of 

his 'complaint with prejudice. When complainant acknowledged for the 

record his understanding and acceptance of the terms of the settlement, 

the trial judge entered an order approving it and directed that subject 

to payment of the sum agreed upon and the furnishing of complainant's 

release for the record the matter would be deemed dismissed with 

prejudice. 

587 
Accordingly, it is ORDERED that the bench decision and order 

approving settlement be, and hereby are, CONFIMRED. It is FURTHER 

ORDERED that subject to (1) execution of an appropriate release by 

complainant, (2) payment of the settlement sum agreed upon by the 

operator, and (3) the filing in this record of the release and 

acknowledgement of payment the captione discrimination complaint is 

DISMISSED with prejudice. 

Distribution: 

eph B. Kenne y 

Administrative Law Judge 

Elmer Wayne Staton, Rt. 1, Box 79, Churchville, VA 24421 (Certified 

Mail) 

E. M. Wright, Jr., Esq., P.O. Box 488, Dillwyn, VA 23936 (Certified 

Mail) 

Kyanite Mining Corp., Hank Jamerson, Safety Director, Dillwyn, VA 

23936 (Certified Mail) 

588 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 IPR 13198'l 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, DOCKET NO. WEST 79-240 

v. A/C No. 05-02820-03009 

C F & I STEEL CORPORATION, Mine: Maxwell 

Respondent. 

~~~~~~~~~~~~~~~~~~~~ 

Appearances: 

James H. Barkley, Esq., Office of Henry C. Mahlman, 

Associate Regional Solicitor, United States Department of Labor, 

Denver, Colorado 80294 

For the Petitioner 

Phillip D. Barber, Esq., Welborn, Dufford, Cook and Brown 

Denver, Colorado 80202 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Federal Mine Safety and 

Health Administration, (MSHA), charges respondent CF&I Steel Corporation, 

(CF&I), with violating the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. 801 et~· 

Petitioner issued citation number 387763 pursuant to Section 104(a) 

of the Act [30 U.S.C. 814{a)]. It is alleged that CF&I violated Part 30, 

Code of Federal Regulations, Section 75.200 which provides as follows: 

§ 75.200 Roof control programs and plans. 

[Statutory Provisions] 

Each operator shall undertake to carry out on a continuing 

basis a program to improve the roof control system of each 

coal mine and the means and measures to accomplish such 

system. The roof and ribs of all active underground roadways, travelways, and working places shall be supported or 

otherwise controlled adequately to protect persons from 

falls of the roof or ribs. A roof control plan and revisions 

589 
·thereof suitable to the roof conditions and mining 

system of each coal mine and approved by the Secretary 

shall be adoptPd and set out in printed form on or 

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

support and spacing approved by the Secretary. Such 

plan shall be reviewed periodically, at least every 6 

months by the Secretary, taking into consideration any 

falls of roof or ribs or inadequacy of support of roof 

or ribs. No person shall proceed beyond the last 

permanent support unless adequate temporary support is 

provided or unless such temporary support is not required under the approved roof control plan and the 

absence of such support will not pose a hazard to the 

miners. A copy of the plan shall be furnished to the 

Secretary or his authorized representative and shall be 

available to the miners and their representatives. 

After notice to the parties a hearing on the merits was on April 1, 

1981 in Denver, Colorado. 

ISSUES 

The issues are whether a violation occurred and, if so, what penalty 

is appropriate. 

SUMMARY OF THE EVIDENCE 

The CF&I Maxwell Mine is open by one slope from north to south. At 

the foot of the slope it bends to the right and is developed with 14 

parallel entries separated into three development sections. Unit 2 of the 

mine includes entries 10, 11, 12, 13, and 14. There are two shafts, one 

entry and one return (Tr. 7). 

CF&I reported an unintentional roof fall in entry 14. The fall 

occurred late in the evening on January 25. The resulting MSHA inspection 

occurred February 6, 1979 (Tr. 7, 19). 

In entry 14 conditions in the roof were good until 9 o'clock on the 

25th (Tr. 56-57). The roof was smooth and the roof bolters during the work 

shift had been drilling into substantial roof (Tr. 58). In the week before 

the 25th no deficiencies were ohserved in the roof (Tr. 58). On January 25 

they had just broken the crosscut through and the roof condition were good 

with no water, flaking, spalling, spealing, or sloughing (Tr. 62, 63). 

About 9 p.m., when the conditions changed, the underground section foreman 

called the superintendent. The superintendent ordered the men and 

machinery withdrawn. Breaker props were ordered set up to keep everyone 

out (Tr. 63). The superintendent further directed that six foot pins be 

used when starting in the adjacent entry, number 13 (Tr. 63, 64). 

590 
On January 26 MSHA's inspector Rivera and CF&I's Massarotti and 

Cambruzzi went into the 14 entry. [Rivera did not appear as a witness nor 

does the record indicate how or why he appeared at the mine on January 26]. 

In any event, it was decided not to take the chance of exposing anyone to 

the hazards involved in further supporting the roof in entry 14 (Tr. 64). 

It was decided to let the roof fall and breaker posts were installed. 

The timbers prevented anyone entering the area (Tr. 64-65). 

On the 26th water was coming out of the roof. This point was marked 

on a company map. A week later water was encountered in entry 13. This 

point was also entered on the map (Tr. 67, 68, Pl). 

When water was seen on the 26th it was decided to continue using six 

foot bolts throughout this area including the intersections, the entries, 

and the crosscuts (Tr. 67). CF&I had been using 48 inch pin at the 

straights as well as six and five foot bolts in the intersections (Tr. 67). 

Additional measures after the 26th included timbers and steel beams when 

water was encountered (Tr. 69). 

CF&I abated the citation by securing MSHA's approval for a proposed 

amendment to its roof control plan (Tr. 29-32, 72-73, R2). The three items 

required by the amendment were in use by CF&I before February 6, 1979 (Tr. 

72-73). 

DISCUSSION 

The citation in this case alleges that "after an unintentional roof 

fall above the anchorage zone of the roof bolts no changes or revisions 

have been implemented to improve or upgrade the existing roof control 

program. The operator shall submit intended revisions or improvements to 

the District Manag~r for approval" ( Rl). 

Contrary to MSHA's allegations I find from the evidence that CF&I did, 

in fact, improve its roof control plan. When the roof began to deteriorate 

the superintendent ordered an increase in the size of the roof bolts that 

were to be used in entry 13. Further, the area in which the cave-in 

occurred was redlined and timbers prevented anyone from entering. 

The three changes in the CF&I roof control plan submitted by CF&I to 

MSHA on March 12, 1979 included more as well as closer roof bolts, 

additional support if water was encountered, and breaker timbers to confine 

a caved area. All of these were in use before the inspection date of 

February 6, 1979 (Tr. 72-73). Accordingly, I conclude that CF&I upgraded 

its roof control plan and the breakers further prevented workers from 

entering the hazardous area. 

591 
MSHA's second contention focuses on the proposition that given the 

attendant circumstances CF&I should have done more than merely increase the 

size of its roof bolts in entry 14. 

MSHA is correct in its pronouncement of the law that an operator may 

be in violation of 30 C.F.R. 75.200, even though it is complying with the 

minimum requirements of its roof control plan. Zieler Coal Company 2 IBMA 

220, September 18, 1973. However, the evidence relied on by MSHA does not 

stretch as far as MSHA claims. 

MSHA asserts that the MSHA inspector had previously advised CF&I that 

its roof support was inadequate in the presence of adverse roof. 

The record fairly supports the view that MSHA, since the last review of the 

roof control plan, had been "after" the company to upgrade the roof control 

plan. On the other hand CF&I felt the plan was adequate (Tr. 10, 44). 

CF&I acknowledges that the MSHA inspector told the company that the roof 

supports in areas of the Maxwell Mine were inadequate (Tr. 87). I am, 

however, obliged to ·accept the inspector's testimony that he couldn't 

remember any adverse conditions in entry 14 before January 25, 1979 (Tr. 

19, 27). In addition he couldn't recall that the roof was unsafe before 

the fire bosses' report. (It was the fire boss who reported the initial 

roof fall). Since MSHA's theory is that the roof control plan was 

inadequate in the presence of adverse roof then it bears the burden of 

establishing that such adverse conditions were present. 

MSHA contends that CF&I's records and mapping of the strike zone !J 

establish that adverse roof conditions existed. 

A fair reading of the evidence shows that the so-called records were 

developed after the roof fall on January 25/26. The MSHA inspector's 

testimony establishes that CF&I could not have known of the strike zone: at 

the time the strike zone was marked the ·inspector couldn't remember how far 

the zone extended; in addition the mine had not developed far enough to 

show the strike zone (Tr. 11, 28). The zone would not have been apparent 

to the operator before February 6, 1979 (Tr. 28). The roof fall was fairly 

close to the working face. so the strike zone couldn't have been noted to 

any great extent other than the signs that were visible, that is, the 

changes in the roof (Tr. 28). 

Petitioner relies on additional evidence to support his citation. 

This evidentiary detail is now considered: 

1/ A strike zone is a crack or fissure in a roof with water, spalling and 

sloughing (Tr. 10); also a strike is the direction or bearing of a 

horizontal line in the plane of an inclined stratum. U.S. Department of 

Interior Bureau of Mine, A Dictionary of Mining, Mineral and Related Terms, 

1089 (1968). 

592 
The MSHA inspector testified that when he inspected the mine there was 

water and spalling 50 to 75 feet ou~by the caved area (Tr. 41-42). This 

condition, in his opinion, should ~ave put CF&I on notice prior to January 

25/26 that additional roof support was needed (Tr. 41-42). However, I 

don't find that credible. Basically, I credit CF&I's contrary evidence 

that there was no water or spalling outside of the caved area (Tr. 

71-72). 

The inspector further testified that the conditions he found on 

February 6 would have been readily observable prior to that day (Tr. 

44-45). I agree but the foregoing testimony is not determinative of the 

issue. The condition observed on February 6 had no doubt been there at 

least from January 25/26. 

The uncontroverted testimony from the MSHA inspector is that it is 

more hazardous to let a roof fall than to adequately support it in the 

first place. The basis for this .testimony is that after a roof fall miners 

must go in and clean up under an unsupported roof. They must also resupport it. 

The clear thrust of MSHA's argument is that roof falls must never 

occur. This is a laudable objective·that cannot always be attained. 

However, two difficulties arise with MSHA's argument. First of all, there 

is no evidence that the mi.n.ers would be working under the unsupported roof 

while they clean up the rock fall area, and a further difficulty with 

MSHA's position is that the conditions here rapidly developed and the roof 

rapidly deteriorated. When .this occurred the men and machines were 

withdrawn. . The i~spector clearly stated that nobody in their right mind 

was going to go back into the area. after. the men were withdrawn. In short, 

no one claimed that CF&I.personnel should.attempt to resupport the roof 

after the initial fall on January 25/26~ (Tr. 25, 26). 

MSHA's view appears to be based on hindsight rather than on the 

operative facts. 

EVIDENTIARY RULINGS 

The Judge excluded.evidence of a later roof fall in entry 13 because 

the record failed to establish any connection between the two roof falls 

(Pl). In addition, the second roof fall was the subject of a decision by 

Judge Jon Boltz involving the same parties. The case was docketed as WEST 

79-291 (3 FMSHRC 1870). The findings in Judge Boltz's case are not 

factually controlling in this case and in a separate order I refused CF&I's 

motion to file a supplemental brief citing Judge Boltz's factual findings 

and his conclusions based.thereon (Order, March 19, 1982). 

593 
Based on the foregoing findings of fact and conclusions of law I 

enter the following 

ORDER 

Citation 387763 and the proposed penalty therefor are vacated. 

Distribution: 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Phillip D. Barber, Esq. 

Welborn, Dufford, Cook and Brown 

1700 Broadway 

Denver, Colorado 80202 

Law Judge 

594 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 APR13\98'l 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, DOCKET NO. WEST 80-469 

v. A/C No. 05-00296-03046 F 

C F & I STEEL CORPORATION, Mine: Allen 

Respondent. 

~~~~~~~~~~~~~~~~~~~~ 

Appearances: 

James H. Barkley, Esq., Office of Henry C. Mahlman, 

Associate Regional Solicitor, United States Department of Labor, 

Denver, Colorado 80294 

For the Petitioner 

Phillip D. Barber, Esq., Welborn, Dufford, Cook and Brown 

Denver, Colorado 80202 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Federal Mine Safety and 

Health Administration, (MSHA), charges respondent CF&I Steel Corporation, 

(CF&I), with violating the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. 801 !E. ~· 

Petitioner issued citation number 387105 pursuant to Section 104(a) of 

the Act [30 U.S.C. 814(a)]. It is alleged that CF&I violated Part 30, Code 

of Federal Regulations, Section 75.200 which provides as follows: 

§ 75.200 Roof control programs and plans. 

[Statutory Provisions] 

Each operator shall undertake to carry out on a cont.inuing 

basis a program to improve the roof control system of each 

coal mine and the means and measures to accomplish such 

system. The roof and ribs of all active underground roadways, travelways, and working places shall be supported or 

otherwise controlled adequately to protect persons from 

falls of the roof or ribs. A roof control plan and revisions 

595 
thereof suitable to the roof conditions and mining 

system of each coal mine and approved by the Secretary 

shall be adopted and set out in printed form on or 

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

support and spacing approved by the Secretary. Such 

;plan shall be reviewed periodically, at least every 6 

months by the Secretary, taking into consideration any 

falls of roof or ribs or inadequacy of support of roof 

or ribs. No person shall proceed beyond the last 

permanent support unless adequate temporary support is 

provided or unless such temporary support is not required under the approved roof control plan and the 

absence of such support will not pose a hazard to the 

miners. A copy of the plan shall be furnished to the 

Secretary or his authorized representative and shall be 

available to the miners and their representatives. 

Petitioner seeks a civil penalty of $7000. After notice to the 

parties a hearing on the merits was held on April 1, 1981, in Denver, 

Colorado. 

ISSUES 

The issues are whether a violation occurred and, if so, what penalty 

is appropriate. 

SUMMARY OF THE EVIDENCE 

CF&I's roof control plan for the Allen Mine in effect on the date of 

this fatality provides, in part, as follows: 

Two safety jacks must be kept on the bolting machine 

at all times to be used when adverse roof conditions 

are encountered and the automated support does not 

supply adequate protection for the bolt operator (Tr. 

36, 41-42, P2). 

On February 26, 1979 roof bolter Maestas with his crew, consisting of 

Silva and victim Casias, were installing roof bolts in the Allen Mine (Tr. 

5, 6). 

The double boom roof bolter is 32 feet long and 12 feet wide (Tr. 

6-7). The bolter has a boom on each side. The bolter consists of two 

basic parts: the canopy mechanism and the drive mechanism (Tr. 7-8, 

190-192). The canopy is powered by an hydraulic jack which, when activated, forces the canopy up against the roof (Tr. 192-193). The portion 

that can be pressured against the roof measures 22 inches wide and 36 

inches long (Tr. 193). "Elephant ears" extend downward at a slight angle 

596 
below each can.opy. The ears measure 14 inches by 36 inches (Tr. 193). The 

canopy pressure against the roof seeks to support the roof and the 

"elephant ears" prevent rock from falling directly on the operator and his 

helper (Tr. 8, 194). 

On the day of this fatality the continuous miner had finished cutting 

and was backed out of a crosscut. The roof bolting crew was going to roof 

bolt the crosscut between the two entries (Tr. 10). In order to install 

a roof bolt Maestas moved the right side of the roof bolter close to the 

rib line (Tr. 11). · In this position it was impossible for Maestas to 

install the pin and the glue (Tr. 11). In most cases Maestas' helper, 

Casias.would have operated the left side of the bolter so it was agreed 

Casis would put up the pins on that side (Tr. IO). Casias came to the side 

of the bolter and put in the glue and pin. Maestas activated the thrust 

lever to meet the pin. At this point a slab of rock fell (Tr. 11, 12, 14, 

16, Pl, RI). As the rock fell it hinged, broke, and a portion of it fell 

under the supported portion of the roof pinning Casias against the inside 

of the canopy (Tr. 16, 22, 23, 30). The portion of the rock trapping 

Casias was four feet wide, seven feet long, and one to three feet thick 

(Tr. 30). The entire rock fall measured 13 feet by 7 feet (Pl, RI). 

When the rock fell Casias was standing immediately under the bolter 

canopy and he was either under, or at the edge of, the permanently supported roof (~r. 15, 26, Pl, RI). 

Maestas jumped over and unsuccessfully tried to move the rock. He 

then used the thrust arm to move the rock (Tr. 16). 

The crew was going to roof bolt at the point where the crosscut had 

been turned (Tr. 19). When turning a crosscut extra support is needed (Tr. 

19). Maestas had observed a visible slip 13 to 17 feet away (Tr. 27). A 

slip, which is like a glass surface, is a possible roof deformity. It is a 

separation of the roof and there isn't much holding it up. Slips are 

dangerous (Tr. 18, 19, 31). 

There were two safety jacks on the roof bolter used for holding up 

beams and for temporary roof support. The safety jacks were not used on 

the day of the accident (Tr. 19-21). 

The entry immediately adjacent to where this roof fall occurred was 

heavily supported by steel beams, steel straps, and timber (Tr. 45). 

According to MSHA inspector Jordan whenever you encounter bad roof you 

use temporary roof supports until permanent support can be installed (Tr. 

46-47). In Jordan's opinion Casias could have installed temporary supports 

while remaining under the permanently supported roof (Tr. 48). Such 

temporary supports might have provided some protection. They are normally 

installed by two workers (Tr. 51, 64). 

59'7 
It is a common occurrence that if rock is supported on one edge it 

will hinge back, as it did here, ·when it falls (Tr. 62, 88). If temporary 

supports had been installed they might have enabled Casias to get· out of 

the way, although this is speculative (Tr. 89). 

Salapich, the foreman of the roof bolting crew, stated at the closing 

conference that he observed a slip in the area where the crosscut had been 

turned. The continuous miner operator tried to bring it down with the head 

of the miner but it didn't come down. So Salapich and the crew decided to 

hurry up and bolt it rather than let it sit (Tr. 198-199). 

DISCUSSION 

I agree with CF&I that MSHA carries the burden proving all of the 

elements of a violation. Brennan v. OSHRC, 511 F 2d 1139 (9th Cir. 1975). 

Accordingly, the two pivitol issues in this case concern whether the 

rock bolting crew encountered adverse roof conditions and whether the 

automated support, (ATRS), supplied adequate protection. If both 

conditions arise then the roof bolters are required to use the two safety 

jacks which were admittedly on the bolting machi~e. It should be noted 

that the temporary supports are in addition to and apart from the canopy 

and elephant ears on the roof bolter machine. The canopy is generally 

referred to as the ATRS system. 

CF&I initially asserts that the roof was not adverse in the area of 

the crosscut where the bolting took place. I disagree. The uncontroverted 

evidence shows otherwise: the entry itself was "heavily" supported by steel 

beams. According to Arthur Haske, chief coal mine inspector for Colorado, 

there was adverse roof 50 feet in all directions adjacent to the crosscut 

(Tr. 133, 145-146). There was a great amount of roof support in the area 

[of the entry] indicating CF&I felt they needed the support (Tr. 140). The 

picture is this: the roof of the entry was in such adverse condition that 

it required straps with pins, 16 foot steel beams, and five inch by five 

inch by four foot spacers as part of its permanent support system (Tr. 105, 

Rl). 

Given this situation one would not anticipate that the roof immediately adjacent to this entry would suddenly become something less than 

adverse. 

In addition, roof bolter Maestas acknowledged that it was common to 

put beams up in this section (Tr. 19). Here a crosscut was being turned. 

When turning a crosscut you need extra support (Tr. 19). Safety jacks on 

the bolter can be used to hold up the beams and also for temporary support 

(Tr. 19). Further, before the roof fall Maestas saw at least one of the 

two visible slips 13 feet to 17 feet away (Tr. 27). He further knew that a 

slip is dangerous and a possible separation of the roof (Tr. 18, 19). 

598 
In addition to the foregoing facts the asserted admission of foreman 

Salapich made at the closing conference, as set forth in the summary, 

supra, page 4, is uncontroverted. 

I agree with CF&I that the determination of whether temporary supports 

should have been used cannot be based on an after-the-fact determination. 

However, the preponderance of the evidence clearly establishes that the 

roof was adverse within the meaning of the roof control plan. 

For the reasons previously stated I reject Maestas' opinion that the 

top was quite good (Tr. 105, 110). 

CF&I also contends that the evidence establishes that it was reasonable for the miners to believe that they would be protected by the ATRS 

canopy. If they are adequately protected then the roof control plan does 

not require the use of temporary supports. I disagree that the miners were 

adequately protected by the canopy. The evidence shows that when the rock 

fell Casias was standing under or at the edge of the permanent roof. That 

particular location was probably the most dangerous position for him 

because if a fall occurred the permanent roof could cause part of the rock 

fall to hinge and fall inward under the permanent support. The ATRS on the 

roof bolter would not protect the miners in any fashion because the rock 

was being hinged by the edge of the permanent roof support. If anything 

the ATRS canopy contributed to the toppling motion of the rock. Maestas 

describes the accident: "the rock that hit Casias toppled forward on him. 

When the rock fell the canopy held the front end from falling straight down 

- it caused the back end to fall first, then break, toppling back on him" 

(Tr. 30). 

Based on the physics of the situation I further credit MSHA inspector 

Jordan's testimony that rock will frequently fall in a toppling manner (Tr. 

212). In other words, if a rock is supported on one edge it will hinge 

when it falls (Tr. 62). I reject CF&I's contrary evidence from Maestas and 

Haske (Tr. 107, 136). What the CF&I witnesses are saying is that rock 

usually falls straight down. I agree. Further, they had never seen rock 

fall "in this manner." However, we have this situation: the rock was 

partly held by permanent support, and the portion outside of the permanent 

support falls. In this circumstance the falling rock will, in my view, 

usually always hinge and fall under the hinge point, or as in this 

situation, under the permanent roof support and the canopy. 

CF&I contends that MSHA's evidence only suggests that jacks might have 

been used and they might have saved Casias. CF&I points to inspector 

Jordan's testimony that it was "highly speculative" what protection, if 

any, the temporary supports would have provided. Further, Maestas 

testified that CF&I uses two men to install temporary supports thus their 

installation might have lead to the death of two miners. 

599 
I agree CF&I's, analysis of the evidence. It is highly speculative 

whether the temporary roof supports might have protected Casias. In fact, 

we can speculate that 16 foot 6 inch I beams, such as were in the entry, 

might not have contained this rock fall. However, CF&I has misjudged the 

thrust of the regulation. There was adverse roof and the canopy was 

inadequate. Unfort·unately, we will never know what protection would have 

protected Casias. 

CF&I states that MSHA's indecisiveness underscores the reasonableness of the miners' actions. The record clearly supports indecisiveness by MSHA in its effort to decide whether CF&I violated its roof control 

plan. I further ag.ree with CF&I that this is not a strict liability 

standard. In other words this case does not reduce to a roof fall, a 

fatality, and a citation. MSHA may have been indecisive but the Secretary 

did in fact issue a citation and the determinative facts are set forth in 

this decision. Mere indecision by MSHA and conclusionary statements by 

MSHA inspectors that no violation occurred do not invalidate the 

Secretary's case. 

CF&I further invokes the "greater hazard" doctrine. It is claimed 

that the installation of temporary support would create a greater hazard 

than not installing them. 

The Review Commission has extensively reviewed the greater hazard 

doctrine and concluded that there is a statutory procedure for an operator 

to obtain a waiver or modification of a mandatory standard. Any such 

relief must be obtained in a forum different from this Commission, that is, 

such waiver or modification rests with the Secretary of Labor. Penn Allegh 

Coal Company, Inc., 3 FMSHRC 1392, 1399 (June 1981), 30 U.S.C. 811(c); 30 

C.F.R. Part 44. 

CIVIL PENALTY 

Section llO(i) of the Act [30 U.S.C. 820(i)] provides as follows: 

The Commission shall have authority to assess all civil 

penalties provided in this Act. In assessing civil monetary 

penalties, the Commission shall consider the operator's 

history of previous violations, the appropriateness of such 

penalty to the size of the business of the operator charged, 

whether the operator was negligent, the effect on the operator's 

ability to continue in business, the gravity of the violation, 

and the demonstrated good faith of the person charged in attempting 

to achieve rapid compliance after notification of a violation. 

At the trial the Secretary encouraged the Judge to impose a lesser 

penalty than the proposed $7000 if it was determined that a violation 

600 
occurred (Tr. 221, 218). CF&I urges that even if a violation existed it 

would only be technical and a fine, if any, should be minimal. 

As previously discussed there is little evidence establishing a casual 

connection between the facts of the alleged violation and the death of 

miner Casias. However, a casual connection in the sense urged by CF&I is 

not a requirement under the regulation. 

Considering the statutory criteria I deem that a civil penalty of 

$2500 is appropriate. 

Based on the foregoing findings of fact and conclusions of law I enter 

the following 

ORDER 

1. Citation 387105 is affirmed. 

2. A civil penalty of $2500 is assessed. 

Distribution: 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Phillip D. Barber, Esq. 

Welborn, Dufford, Cook and Brown 

1100 United Bank Center 

Denver, Colorado 80290 

601 

Law Judge 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 14, 1982 

CAMBRIA 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. 

CAMBRIA COAL COMPANY, 

Respondent 

DECISION 

Contest of Citation 

Docket No. PENN 81-169-R 

Citation No. 1043934; 5/8/81 

Cambria Strips & Tipple 

Civil Penalty Proceeding 

Docket No. PENN 81-231 

A.C. No. 36-02738-03009 

Cambria Coal Strips 

& Tipples 

Appearances: Bruno A. Muscatello, Esq., Brydon, Stepanian 

& Muscatello, Butler, Pennsylvania, for 

Contestant/Respondent, Cambria Coal Company; 

David T. Bush, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Respondent/Petitioner, 

MSHA. 

Before: Judge Merlin 

This is a consolidated proceeding consisting of a 

notice of contest and a petition for the assessment of seven 

civil penalties. A hearing was held on March 23, 1982. At 

the conclusion of the hearing, counsel waived the filing of 

written briefs and presented oral argument in support of 

their positions. 

At the outset of the hearing the Solicitor moved to 

withdraw the penalty petition with respect to Citation No. 

1043930. From the bench I granted the withdrawal. 

602 
The Solicitor also submitted at the hearing a motion 

·for approval of settlements. With respect to four citations 

the motion recommended approval of the originally assessed 

amounts totalling $216. The proposed settlement for a fifth 

citation was $64, $20 less than the original amount. A 

lesser degree of gravity was explained for the reduction. 

I approved the settlements from the bench. 

This left for hearing Citation No. 1043934 which is 

the citation in the notice of contest PENN 81-169-R. 

The citation dated May 8, 1981 sets forth the alleged 

violation of 30 C.F.R. 77.1607(p) as follows: 

The movable boom mast of the Bucyrus Erie 

88-B Dragline was left in the upright position 

and at a location where a person or persons 

could walk under this boom mast at any time. 

This boom mast was also not either secured or 

lowered to the ground surf ace when this piece 

of equipment was originally parked and has 

been out of service for an unknown period of 

time. This piece of equipment is located at 

this time at the 045 pit area. 

The mandatory standard, 30 C.F.R. § 77.1607(p) provides 

as follows: 

Loading and haulage equipment; operation. 

Dippers, buckets, scraper blades, and similar 

movable parts shall be secured or lowered to 

the ground when not in use. 

There is no dispute about the facts.!/ The dragline 

was parked about an eighth of a mile from the point where 

1/ At the hearing counsel agreed to the admission of all 

documentary exhibits. However, upon receipt of the administrative transcript I found that the last page of MSHA Exh. 

No. 2 was missing. This page was a photocopy of a picture 

of the type of dragline involved. During the hearing, 

witnesses had identified various parts of the machine by 

marking them with letters. By letter dated April 9, 1982, 

the Solicitor has submitted another photocopy which he and 

operator's attorney have marked and which they have stipulated is a true and correct copy of the missing page. 

I accept the stipulation and the photocopy offered by 

counsel is hereby made part of the record as a true and 

correct copy. 

603 
coal was being mined in the pit. The bucket of the dragline 

was down on the ground and the boom was up in the air. 

(Op. Ex. No. 3) The dragline had not been used for about 6 

to 8 weeks. 

Since the boom was not lowered to the ground and since 

it plainly was not in use, it must be .determined whether the 

mandatory standard applies requiring it to be lowered or 

secured. If the mandatory standard applies, inquiry must be 

made whether or not the boom was secured. 

The mandatory standard specifically enumerates dippers, 

buckets and scraper blades. The boom mast is not one of 

these. The standard also includes "similar movable parts." 

As the testimony shows, the boom mast moves. MSHA's position 

is that because the boom moves, it is a movable part similar 

to dippers, buckets and scraper blades. I cannot accept 

this argument. If similarity is satisfied only by movability, 

the word "similar" is superfluous and 1607(p) could accomplish 

its purpose by referring only to "movable parts." The 

Solicitor acknowledged this in his closing argument. An 

interpretation· which relegates part of a definition to 

surplusage is to be avoided. 

Dippers, buckets and scraper blades are similar to each 

other in function because they come in contact with the 

earth by picking it up or leveling it. All of them are the 

furthermost part or the extremity of the total operation to 

which they are attached. The boom mast does not have these 

characteristics. Rather it moves and directs dippers, 

buckets and scraper blades and similar movable parts. In 

addition, the boom is an integral part of the assembly of 

the heavy-duty crawler machine as evidenced by the fact that 

it is included and described in the crawler's specifications 

(MSHA Exh. No. 2). Dippers, buckets and scraper blades are 

not so included. Accordingly, the boom is not similar 

either in placement or function to the items enumerated in 

the standard. Based upon the foregoing, I conclude the boom 

is not covered by the standard and the citation must be 

vacated. 
The inspector's selective and uneven enforcement of the 

standard also demonstrates that it does not apply here. The 

inspector stated that he would not issue a citation where 

a lowered and not~in-use boom is in the active pit area. 

The inspector said that under these circumstances he would 

not issue ~ citation because no danger exists in the active 

pit area since people would not walk under the boom there. 

The standard however, is not premised upon the boom's 

location and the inspector has no authority to carve out 

such an exception. Conversely, if the citation in this 

case were upheld, citations would have to be issued in 

situations where the location is the active pit although 

the inspector himself admits they would not be necessary 

and does not issue them in such cases. 

Finally, even if the boom were within the purview of 

the mandatory standard as a similar movable part, the 

citation still would be invalid because the boom was 

secured. The boom had a braking system. The inspector 

expressed the view that even with the braking system fully 

operative the boom was not secured because brakes are 

subject to mechanical failure. The inspector would require 

external blocks or cribbing although he admitted this would 

be difficult. Moreover, the inspector admitted there is no 

basis in the mandatory standard or any MSHA manual for his 

position. The testimony demonstrates that the boom in fact 

had three separate securing devices: (1) a brake on the 

drum; ( 2) a ratchet-type mechani srn on the gear;; and ( 3) a • 

worm gear. All of these devices were explained in detail at 

the hearing. I find that any one of them secured the boom. 

MSHA introduced no evidence to show that they were inoperative. 

Indeed, the inspector expressly stated that he did not test 

the brakes. Accordingly, I conclude all three systems were 

working and that the boom was secured within the meaning of 

the standard. 

605 
ORDER 

It is Ordered that the penalty petition be withdrawn 

with respect to Citation No. 1043930. 

It is Ordered that the operator pay $280 with respect 

to Citation Nos. 1043927, 1043928, 1043931, 1043932 and 

1043933 within 30 days from the date of this decision. 

It is Ordered that Citation No. 1043934 be vacated and 

that Notice of Contest PENN 81-169-R be Granted. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: Certified Mail. 

Bruno A. Muscatello, Esq., Brydon, Stepanian & Muscatello, 

228 South Main Street, Butler, PA 16001 

David T. Bush, Esq., Office of the Solicitor, U.S. Department 

of Labor, 14480-Gateway Building, 3535 Market Street, 

Ph~ladelphia, PA 19104 

606 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR 151982 

SECRETARY OF LABOR, 

MiNE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ALLEN KELLER COMPANY, 

Respondent 

Civil Penalty Proceedings 

Docket No. CENT 81-224-M 

A/O No. 41-02821-05002 

Docket No. CENT 81-231-M 

A/O No. 41-02821-05003 

Keller Crusher and Pits 

DECISION 

Appearances: Ron Howell, Esq., Office of the Solicitor, U.S. Department 

of Labor, Dallas, TX, for Petitioner; 

Before: 

Mr. Michael Eilers, Mr. Al Farest, Allen Keller Company, 

Fredericksburg, TX, for Respondent. 

Judge Stewart 

This is a proceeding filed by the Secretary of Labor, Mine Safety and 

Health Administration (MSHA), under section llO{a) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 820(a) (hereinafter the Act) 1/ 

to assess civil penalties against Allen Keller Company. -

!/ Sections llO{i) and {k) of the Act provides: 

"{i) The Commision shall have authority to assess all civil penalties 

provided in this Act. In assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous violtions, the appropriateness of such penalty to the size of the business of the operator charged, 

whether the operator was negligent, the effect on the operator's ability to 

continue in business, the gravity of the violation, and the demonstrated good 

faith of the person charged in attempting to achieve rapid compliance after 

notification of a violation. In proposing civil penalties under this Act, 

the Secretary may rely upon a summary review of the information available to 

him and shall not be required to make findings of fact concenring the above 

factors. 

"{k) 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. No penalty assessment which has become a 

final order of the Commission shall be compromised, mitigated, or settled 

except with the approval of the court." 

607 
The parties stipulated that: 

1. Twenty-one thousand, eight hundred and fifty six (21,856) tons per 

year were worked at the Keller Crusher and Pits and that it was a small mine; 

2. There were 4 violations in the previous 24 months, and that 

3. The assessed penalties would have no effect on Respondent's 

ability to remain in business. 

The citations herein issued by Mr. Charles E. Price, MSHA Inspector, for 

alleged violations of mandatory safety standards in Part 56 of Title 30, Code 

of Federal Regulations, were served on Mr. Herbert Kelone at Keller Crusher 

and Pits. This was the only inspection of this mine made by Mr. Price. 

Citations 162343 and 162349 

On Citation No. 162343, issued February 26, 1981, the inspector noted: 

"The work platform where the generator was mounted was not provided with hand 

rails. (Trailer) work platform was approximately four foot off the ground. 

Employee was on the platform at least two times a day." 

In terminating the citation the inspection noted: "The elevated work 

platform where the generator was mounted was provided with hand rails." 

30 C.F.R. § 56.11-27 provides: "Scaffolds and working platforms shall 

be of substantial construction and provided with handrails and maintained in 

good condition. Floor boards shall be laid properly and the scaffolds and 

working platforms shall not be overloaded. Working platforms shall be provided with toeboards when necessary." 

On Citation No. 162349, issued on February 26, 1981, the inspector 

noted: "The K406 haul unit was not provided with a fire extinguisher •. 

Employee drove the unit eight hours a day." 

In terminating the citation the inspector noted: "The K406 haul unit 

was provided with a fire extinguisher." 

30 C.F.R. § 56.4-24(c) provides: Fire extinguishers and fire suppression 

devices shall be (c) replaced with a fully charged extinguisher or device or 

recharged immediately after any discharge is made from the extinguisher or 

device. 

The parties entered into a settlement agreement to reduce the $30 

assessment for Citation 162343 to $22 and to reduce the $44 assessment in 

Citation 162349 to $32. Based on the information furnished by the parties 

and an independent review and evaluation of the circumstances, I find the 

settlement proposed is in accord with the provisions of the Act. The 

settlement agreement is approved. An assessment of $22 is entered for 

Citation 162343 and an assessment of $32 is entered for Citation 162349. 

608 
Citations 162351 and 162354 

On Citation 162351, issued on February 26, 1981, the inspector noted: 

"The cab of K405 haul unit was not kept clear of extraneous materials. Three 

soda pop cans were rolling around in the cab. Unit was operated eight hours 

a day." 

In terminating the citation the inspector noted: "The cab of K405 haul 

unit was cleaned of all extraneous materials." 

30 C.F.R. § 56.9-12 provides: "Cabs of mobile equipment shall be kept 

free of extraneous materials." 

On Citation 123454, issued February 26, 1981, the inspector noted: 

"Employee was observed using compressed air to blow out a filter, and was 

not using safety glasses or other suitable protective devices to protect his 

eyes from flying particles. Employee was stopped until eye protection could 

be provided." 

In terminating the citation the inspector noted: "Employee works on 

service truck which is used on a road job most of the time. Employee not 

on property." 

30 C.F.R. § 56.15-1 provides: "All persons shall wear safety glasses, 

goggles, or face shields or other suitable protective devices when in or 

around an area of a mine or plant where a hazard exists which could cause 

injury to unprotected eyes." 

Pursuant to a motion that these two citations be vacated because 

Petitioner could not meet its burden of proof. Citations 162351 and 162354 

are vacated and the proceedings in regard to these two citations are 

dismissed. 

Citations 162277, 162278, 162279, 162280, and 162344. 

These five citations, issued on February 26, 1981, alleged a violation 

of 30 C.F.R. § 56.14-1 which provides: "Gears; sprockets; chains; drive, 

head, tail, and takeup pulleys; flywheels; couplings; shafts; sawblades; fan 

inlets; and similar moving machine parts which may be contacted by persons, 

and which may cause injury to persons, shall be guarded. 

In regard to each of these five citations it was established by the 

evidence that there were five different physical locations on the work site 

with tail pulleys or tail rollers at each separate location, and none of them 

had a guard on either side. The inspector stated that he calls the equipment 

referred to as a tail pulley in the regulations a tail roller and that he used 

that designation in his citations. Since the conveyor belts were not 

numbered at this mine the inspector identified the equipment in his citations 

by the names given him by the foreman. Although the five tail pulleys were 

separate equipment they were in close proximity. 

609 
It was probable that an accident might occur resulting in loss of limb 

or life. Two employees doing clean up work in the vicinity of the unguarded 

tail pulleys were shovelling spillage. 

The inspector acknowledged that Respondent exercised good faith in 

achieving rapid abatement after notification of the violations in each of 

the citations. 

Allen Keller Company had taken steps to insure that all pinch points 

were guarded and guards had been installed on tail pulleys in locations other 

than those in which the citations were issued. The mine had been inspected 

three times previously and no citation had been issued by another inspector 

regarding pinch points. The inspector issuing the citations was not aware 

of the prior inspections. The conditions noted, which were near the office, 

were open and obvious. The equipment was partially, but not sufficiently, 

guarded by its location. Although the conditions existing were violations 

of the mandatory standard the negligence of Respondent was slight. 

On Citation 162277 the inspector noted: "Tail pulley for contractor 

conveyor belt located approximately one foot from the ground was not guarded. 

Two employees do clean-up work in the area eight hours a day." 

In terminating the citation the inspector noted: "The tail pulley for 

contractor conveyor belt was guarded." 

The evidence established that the pinch points on the bottom between the 

belt and the pulley were protected to some extent by the frame but that a 

possible pinch point existed between the pulley and the frame. 

An assessment of $44 is entered for this violation. 

On Citation 162278 the inspector noted: "The tail pulley for screen 

conveyor belt located approximately one foot from the ground was not guarded. 

Two employees work in the area eight hours a day." 

In terminating the citation the inspector noted: "The tail pulley for 

the screen conveyor belt was guarded." 

An assessment of $50 is entered for this violation. 

On Citation 162279 the inspector noted, "The tail pulley for the return 

conveyor belt was not guarded. Two employees work in the area eight hours 

a.day." In terminating the citation the inspector noted, "The tail pulley 

for the return conveyor belt was guarded." 

An assessment of $50 is entered for this violation. 

On Citation 162280 the inspector noted, "The tail pulley for the loading 

conveyor belt was not guarded. Two employees work in the area eight hours a 

610 
day." In terminating the citation the inspector noted, "The tail pulley for 

the loading conveyor belt was guarded." 

At the hearing, the inspector stated that the loading conveyor belt 

came out from under the finished product bin which loaded the trucks and that 

the tail pulley was set more in less in a hole. There was quite a lot of 

spillage of the finished product requiring clean up work. 

An assessment of $50 is entered for this violation 

On Citation 162344 the inspector noted, "Tail roller for the short conveyor belt mounted on elevated work platform was not guarded. Two employees 

worked in the area eight hours a day." In terminating the citation the 

inspector noted, "The tail roller for the short conveyor belt was guarded." 

At the hearing, the inspector stated that the short conveyor belt was 

mounted, along with a generator, on a flat-bed truck. 

An assessment in the amount of $50 is entered for this violation. 

Citation No. 162347 

On Citation 162347, the inspector noted, "Berms or guards were not provided on the outer banks of the elevated ramp going to the primary hopper." 

Elevation on both sides was 0 to 20 feet. Two R 22 Euclid haul units backed 

onto the ramp all day. In terminating the citation on February 26, 1981, the 

inspector noted, "Berms were built on the outer edges of the elevated ramp." 

The citation alleged a violation of 30 C.F.R. 56.9-22 which provides: "Berms 

or guards shall be provided on the outer bank of elevated roadways." 

The evidence established that the elevated ramp was in effect an extension of the roadway and as such was part of the roadway. It allowed the haul 

unit to back up to the primary crusher and make its dump. The ramp was 

20 feet wide and 40 to 50 feet long with a slight upward incline. The top 

of the ramp was 8' to 10' from the ground. Since there were no berms or 

guards on the elevated roadway the operator was in violation of 30 C.F.R. 

§ 56.9-22. 

Although the speed of a haul units on the ramp was only 3-4 MPH it could 

roll off the roadway and turn over in the absence of berms or guards. The 

inspector's uncontradicted testimony was that a fatality was a possibility. 

The evidence established the probability of serious injury to the operator 

of the vehicle. The inspector observed two haul units with a driver in each 

of them. One of them was backing up on the roadway. 

The inspector testified that the condition was "out in the open." The 

evidence established that Respondent should have known that the condition 

existed. Although inspectors in the past had not required berms in such 

locations this particular elevated ramp was not there at the time of those 

inspections. Under the circumstances the negligence of Respondent was 

moderate. 

611 
The inspector acknowledged that Respondent demonstrated good faith 

in rapidly abating the condition after the citation was issued. 

An assessment in the amount of $50 is entered for this violation. 

Citation No. 162348 

On Citation 162348 the inspector noted "Access to the cab of K 430 haul 

unit was not maintained in a safe condition. Bottom step was bent and broke 

loose on one side." In terminating the citation the inspector noted "Access 

to the cab of K 430 haul unit was repaired in good condition." 

The citation alleged a violation of 30 C.F.R. 56.11-1 which provides 

that "Safe means of access shall be provided and maintained to all working 

places." 

The step was bent and completely broken on one of the haul units. 

There were two means of access to the unit. The defective step was at the 

front of the haul unit. The step on the side was in good condition. The 

haul unit was not running at the time of the citation but it had previously 

been operated and remained available for use. Since one of the means of 

access to the haul unit was not maintained in a safe condition and there was 

nothing to prevent the step from being used the condition was in violation 

of 30 C.F.R. 56.11-1. Equipment need not be actually in use for there to be 

a violation: See Eastern Associated Coal Corporation, 1 FMSHRC 1473, 1979; 

CCH OSHD par. 23,980 (1979). 

The probability that the driver of the truck, the only person exposed 

to the unsafe condition, would be injured is established by the evidence. 

The inspector testified that if the other end of the rung about 18 to 

20 inches off the ground came loose it could result in an injured leg perhaps 

causing lost time. 

The haul unit operates in rocky areas and the stock pile can readily 

break or damage the steps. The inspector acknowledged that there was a 

possibility that the Respondent did not know of this condition under the 

circumstances even though there was a requirement that the equipment 

operator inspect self-propelled equipment before it is operated. Negligence 

on the part of the operator was established. 

The inspector acknowledged that the operator demonstrated good faith 

in abating the condition by rapidly repairing the steps after the citation 

was issued. 

An assessment in the amount of $36 is entered for this violation. 

Citation No. 162350 

On Citation 162350 the inspector noted "Fire extinguisher in the cab of 

K 405 haul unit was not replaced with a fully charged extinguisher after 

612 
being discharged. Employee drove the unit eight hours a day." In terminating 

the citation the inspector noted "The K 405 haul unit was provided with a 

fully charged fire extinguisher." The citation alleged a violation of 

30 C.F.R. 56.4-24(c) which provides: 

Fire extinguishers and fire suppression devices shall be 

(c) replaced with a fully charged extinguisher or device or 

recharged immediately, after any discharge is made from the 

extinguisher or device. 

The inspector found the fire extinguisher discharged but he testified 

that he did not remember how he determined that the fire extinguisher was in 

a discharged condition. He also stated that he would not have issued a citation if there had been a record showing that the extinguisher had been 

inspected recently. Mr. Eilers testified for Respondent that the device was 

a 5 pound fire extinguisher with a gauge. Although the inspector did not 

remember the gauge or how he determined the discharged condition his testimony was adequate to establish the existence of the condition. The evidence 

was not rebutted. Since the record establishes that the discharged extinguisher was not recharged or replaced as required, the operator is in violation of 30 C.F.R. 56.4-24(c). 

One employee was exposed to a burn hazard resulting from the condition. 

There were other fire extinguishers in various locations around the crusher 

site easily accessible to the haul unit operators. It is improbable that 

a person would be injured as a result of the condition. 

The inspector testified that the operator should have known of the condition if the required safety checks were made. Mr. Eilers testified that the 

extinguishers become discharged by vibration of the haul units. He requires 

haul unit operators to report discharged fire extinguishers and he makes 

personal inspections of the fire haul units and extinguishers. The foreman 

told the inspector that undoubtedly in morning they had left some of the fire 

extinguishers behind and that they would be on the operation shortly. 

Moderate negligence is established by the record. 

The operator demonstrated good faith in abating the condition after, 

issuance of the citation. 

An assessment in the amount of $20 is entered for the violation. 

Citation No. 162353 

On Citation 162353 the inspector noted "Fire extinguisher on K 479 

service truck was discharged. Truck carried approximately 250 gallons of 

diesel fuel, 100 gallons of gasoline, 100 gallons of transmission fluid 

and grease. Truck was operated eight hours a day. In terminating the 

citation the inspector noted "The K 79 service truck was removed from the 

property. Company alleged the truck was provided with a fully charged fire 

extinguisher." 

613 
The testimony of the inspector that the fire extinguisher was discharged 

was not contradicted. A·violation of 30 C.F.R. 56.4-24(c) was established by 

the evidence. Although the inspector acknowledged the possibility that there 

was another fire extinguisher in the truck that he did not check it was 

established that at least one extinguisher was discharged. The actual 

presence of an additional extinguisher would have some bearing on the gravity 

the violation but it would not meet the requirements of the regulations. 

The uncontradicted testimony of the inspector was that there was a 

possibility of a fatality. It is probable that the condition could have 

caused serious injury in the event of a fire. 

The Respondent should have known of the condition if the required 

preshift examination and reports by the equipment operator had been made. 

The equipment operators did not report the discharged fire extinguisher to 

Respondent. Mr. Eilers also personally made periodic inspections but his 

last inspection was made on January 22, 1981. The negligence of Respondent 

was moderate. 

The operator demonstrated good faith in abating the condition after the 

citation was issued. 

An assessment of $28 is entered for this violation. 

Assessments 

Citation Amount 

162343 $22 

162349 32 

162277 44 

162278 50 

162279 50 

162280 50 

162344 50 

162347 50 

162348 36 

162350 20 

162353 28 

$432 

Order 

Respondent is ORDERED to pay Petitioner the sum of $432 within 30 days 

from the date of this order. 

d,kμ/ C,_f2/;;;.a~ Forrest E. Stewart 

Administrative Law Judge 

614 
Distribution: 

Ron Howell, F.sq., Office of the Solicitor, U.S. Department of Labor, 

555 Griffin Square Building, Suite 501, Dallax, TX 75202 

(Certified Mail) 

Mr. Michael Eilers, Mr. Al Farest, Allen Keller Company, P.O. Box 393, 

Fredericksburg, TX 78624 (Certified Mail) 

615 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR1511rl 

UNITED STATES 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. 

UNITED STATES STEEL CORPORATION, 

Respondent 

DECISION 

Contest of Citations 

Docket Nos. 

LAKE 81-,.102-RM 

LAKE 81-103-RM 

LAKE 81-114-RM 

Contest of Order 

Citation and Date 

293736 

293739 

293740 

1/22/81 

2/9/81 

3/9/81 

Docket No. LAKE 81-115-RM 

Order No. 296501; 3/9/81 

Minntac Mine 

Civil Penalty Proceedings 

Docket Nos. 

LAKE 81-152-M 

LAKE 81-167-M 

LAKE 81-168-M 

Minntac Mine 

Assessment Control Nos. 

21-00282-05024 I 

21-00282-05026 R 

21-00282-05025 R 

Appearances: Louise Q. Symons, Attorney, Pittsburgh, Pennsylvania, for 

United States Steel Corporation; 

Stephen P. Kramer, Esq., U.S. Department of Labor, for 

the Secretary of Labor and MSHA; 

Clifford Kesanen, Virginia, Minnesota, Miners' Representative, 

Local 1938, United Steelworkers of America. 

Before: Administrative Law Judge Steffey l_/ 

This consolidated proceeding involves four notices of contest and three 

petitions for assessment of civil penalty. Two of the notices of contest 

were filed on February 23, 1981, by United States Steel Corporation (USS) in 

Docket Nos. LAKE 81-102-RM and LAKE 81-103-RM and the remaining two notices 

of contest were filed by USS on March 27, 1981, in Docket Nos. LAKE 81-114-RM 

and LAKE 81-115-RM. · The Secretary of Labor.filed the petition for assessment 

of civil penalty in Docket No. LAKE 81-152-M on June 22, 1981, and thereafter 

l/ These cases were originally assigned to Administrative Law Judge John F. 

Cook and were reassigned to me after Judge Cook ceased to work for the Commission because of a reduction in force. Therefore, the decision has been 

written by me in its entirety, but the hearing was held before Judge Cook on 

August 26 and 27, 1981, in Duluth, Minnesota, pursuant to section 105(d) of 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 815(d). 
filed the petitions for assessment of civil penalty in Docket Nos. LAKE 

81-167-M and LAKE 81-168-M on July 20, 1981. All of the notices of contest 

and the civil penalty cases relate to three citations and one order of withdrawal which were written by an MSHA inspector after a truck had rolled 

over on January 22, 1981. The petitions for assessment of civil penalty 

seek to have penalties assessed for each of the four violations alleged in 

the three citations and order of withdrawal whose validity is challenged in 

the four notices of contest filed by USS. 

Additions to the Record 

The hearing record which I received from Judge Cook consisted of 390 

pages of transcript. Although the transcript shows that Judge Cook received 

in evidence Exhibits M-1 through M-7 and subsequently gave them to the reporter to be returned to him with the transcript (Tr. 13; 390), no exhibits 

were with the transcript when I received it. After the reporter had advised 

me that she did not have the exhibits, I requested that MSHA's counsel provide me with replacement copies of Exhibits M-1 through M-7. Additionally, 

at my request, MSHA's counsel supplied me with two exhibits which are hereinafter identified as Exhibits M-8 and M-9 and those exhibits are received 

in evidence in the part of my decision which deals with the notices of contest filed in Docket Nos. LAKE 81-114-RM and LAKE 81-115-RM. 

Issues 

The issues raised by the notices of contest are (1) whether USS violated section 103(a) of the Act when it refused to allow an inspector to 

travel to the place where a truck had rolled over, (2) whether USS violated 

section 103(a) of the Act when it refused to allow an inspector to interview 

a foreman until an attorney provided by USS was present, and (3) whether USS 

violated 30 C.F.R. §§ 55.9-1 and 55.9-2 when it allegedly failed to record 

and correct a misalignment in a truck and whether such alleged failure was 

unwarrantable under the provisions of sec~ion 104(d)(l) of the Act. 

The issues raised by the three petitions for assessment of civil 

penalty are whether the violations which are the subject of the notices of 

contest occurred and, if so, what civil penalties should be assessed, based 

on the six criteria set forth in section llO(i) of the Act. 

Counsel for USS and MSHA filed simultaneous posthearing briefs which 

were received on November 2, 1981, and November 3, 1981, respectively. 

Findings of Fact 

My rulings on the issues raised in this proceeding will be based on 

the findings of fact set forth below: 

1. An MSHA inspector, James R. Bagley, was conducting a regular 

inspection at United States Steel Company's Minntac Mine in Minnesota on 

January 22, 1981. The inspector was accompanied by James Barmore, a safety 

engineer who works for USS, and by Larry Claude, an auto mechanic who works 

617 
for USS and who is co-chairman of the Safety Committee of the United Steelworkers of America (Tr. 15-16; 134; 181). About noon, the three men interrupted their inspection and returned to the mine office building for the 

purpose of eating lunch. As they were walking down the hall to Barmore's 

office, another USS employee advised Barmore that there had been an accident 

involving a rollover of 2-1/2-ton Ford truck No. 856 used by three of USS's 

employees who were assigned to the Bull Gang or shovel-repair crew (Tr. 17-18; 

136; 181-182). 

2. Barmore considered it within the scope of his duties to investigate 

the accident (Tr. 209). He went into his office to obtain his camera, and 

at that time, he received a radio communication further advising him that the 

accident had occurred. When Barmore came out of his office, he stated to 

Claude, the Union's representative, that he and Claude would have to go to 

the scene of the accident (Tr. 182). Bagley, the inspector, walked behind 

Barmore and Claude to the main door· of the office building. Claude passed 

through the main door in front of Barmore, ~t which time, Barmore turned to 

the inspector and asked him where in the he thought he was going and 

what he intended to do (Tr. 18; 136; 182-183). The inspector stated that he 

intended to accompany Barmore and Claude to the site of the accident (Tr. 18; 

137; 183). Barmore explained to the inspector that he had a contractual 

obligation to investigate accidents in conjunction with a Union representative, but that he could not permit the inspector to accompany him in USS's 

truck to the site of the accident because he did not want his arrival at the 

scene of the accident in the company of an inspector to be misinterpreted as 

the initiation of an MSHA investigation of an accident when, in fact, it was 

a combined company-union investigation (Tr. 19; 55; 137; 183; 209-212; 362). 

The inspector believed that Barmore was improperly precluding him from going 

to the scene of an accident and stated that Barmore should permit him to go 

to the accident site as a matter of courtesy even if Barmore felt the inspector's presence was intrusive during Barmore's initial examination of the 

accident site (Tr. 19; 137; 184). 

3. When Barmore repeatedly insisted that the inspector could not travel 

to the accident site in the same vehicle with Barmore and Claude, the inspector acceded to Barmore's refusal to allow him to travel to the accident 

site. Barmore had assured the inspector that, after Barmore and Claude had 

returned from their inspection of the accident site, Barmore would give the 

inspector a report of what he had observed and show the inspector any pictures made (Tr. 19; 189). When Barmore arrived at the accident site, he 

found that other USS personnel were already at the accident site and that 

another Union representative was also at the scene (Tr. 139; 186-187). 

Since other USS personnel were measuring the length and depth of skidmarks 

and gouge marks in the roadway, Barmore made some pictures and concluded that 

he should rejoin the inspector at the mine office. The inspector ate lunch 

while waiting for Barmore and Claude to return (Tr. 20). 

4. Barmore and Claude returned to the mine office from their investigation of the accident within a period of from 30 to 45 minutes (Tr. 20; 188). 

Barmore laid the pictures he had made on his desk and the pictures were 

618 
handed to the inspector by Claude (Tr. 21; 189; 203). Two employees beside 

the driver had been riding in the truck when it rolled over. All three 

employees had been taken to a clinic for examination and Barmore, at that 

time, was unsure of the extent of their injuries (Tr. 188). Eventually, it 

was found that two of the employees had strained backs and one employee had 

suffered a chipped elbow (Exh. M-7). They were, all placed on restricted duty 

for a short time and did not suffer any permanent serious injuries (Tr. 39-40; 

164-165; 278; 332; 375). The truck was damaged extensively in that the box 

or bed of the truck was torn off during the rollover, most of the leaves in 

the left rear spring were wrenched loose and strewn along the roadway, and 

the rear half of the drive shaft was jerked loose and thrown down on the 

roadway (Tr. 130; 145; 165; 252-259; 299-301; 303-304; 381). 

5. The driver of the truck, Martin Kaivola, had reported to his supervisor, Cedric Roivanen, on January 21, 1981, the day before the rollover, 

that the left rear wheels had slipped backwards about 2-1/2 inches from 

their normal position (Exh. M-5; Tr. 37; 50; 99; 156; 322). The report to 

Roivanen was made about 1 p.m. and Roivanen asked Kaivola if the truck could 

be used for the remainder of Kaivola's day shift. Kaivola stated that it 

could and Roivanen told Kaivola to turn the truck in for repair at the end 

of his shift so that the problem could be corrected on the afternoon shift. 

Kaivola left early on January 21, 1981, with Roivanen's express permission 

and Kaivola's two assistants failed to turn in any report to the auto repair 

shop or to Roivanen's office that the shifting in the truck's rear end needed 

to be corrected (Tr. 155-156). Roivanen was so busy with his duties of determining the location of shovels in need of repair and ascertaining the availability of spare parts, that he forgot that Kaivola had reported the shifting 

problem in the rear erid of Truck No. 856 (Tr. 327-328). 

6. Truck No. 856 was continued in use on the afternoon shift of 

January 21, 1981, without being repaired (Tr. 47; 157). The truck was sitting in its usual location on the morning of January 22, 1981, when Kaivola 

·came to work (Tr. 158). Kaivola and one of his assistants checked the oil 

in the truck's engine and examined the truck in general. Kaivola wondered 

whether the shifting in the rear end had been corrected (Tr. 97; 159; 380). 

The truck looked all right to him and was, therefore, driven to two different 

shovel-repair jobs on January 22 (Tr. 162; 381). Shortly aftpr Kaivola and 

his two assistants had left the second job site and were on their way to 

turn in some parts for repair, Kaivola noticed smoke coming from the left 

rear dua~ wheels (Tr. 96; 162; 381). He stated that the rear end must have 

shifted again because smoke was coming from the left rear tires (Tr. 163). 

Richard Boucher and Richard Woullet, both of whom were apprentice wheelwrights, were riding in the truck with Kaivola (Tr. 88; 373). Boucher 

turned to look at the smoke mentioned by Kaivola. At that moment~ some 

thumping noises were heard and the truck flipped compl~tely over and landed 

back on its wheels (Tr. 165; 381). 

7. The word "accident" is defined in section 3(k) of the Act as including "* * * a mine explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any person". The Secretary has defined 

619 
the word "accident" in 30 C.F.R. § 50.2(h) as including 12 different situations, but the portion of section 50.2(h) which is most pertinent to the 

rollover involved in this proceeding is section 50.2(h)(2) which states that 

an accident is "[a]n injury to an individual at a mine which has a reasonable 

potential to cause death." If an operator finds that an accident within the 

meaning of section 50.2(h) has occurred, the operator is required by section 

50.10 to notify MSHA immediately that an accident has occurred and MSHA is 

required by section 50.ll(a) to notify the operator within 24 hours whether 

MSHA intends to conduct an investigation of the accident. Section 50.ll(b) 

requires each operator to investigate all accidents which occur. If the 

operator's investigation results in a conclusion that no "accident" within 

the meaning of section 50.2(h) has occurred, the operator does not have to 

report the "accident" to MSHA immediately, but the operator is required by 

section 50.20 to report the accident to MSHA within 10 days after its occurrence on a Form 7000-1. "Immediately" reportable accidents also have to be 

reported to MSHA on a Form 7000-1 (Section 50.20-5). 

8. All of USS's personnel who investigated the rollover of Truck No. 

856 unanimously concluded that no "accident" within the meaning of section 

50.2(h) had occurred and the accident was reported to MSHA only on a Form 

7000-1 (Tr. 185; 226-227; 240; 278-283). The reason for their concluding 

that no accident within the meaning of section 50.2(h)(2) had occurred was 

that none of the three employees (Kaivola, Boucher, and Woullet) who were 

riding in the truck at the time the rollover occurred received an injury 

which had"* **a reasonable potential to cause death" (Tr. 278). Steven D. 

Starkovich, Barmore's supervisor, took the position at the hearing that 

since the investigation showed that no "accident" reportable to MSHA under 

section 50.10 had occurred, MSHA had no reason to inves.tigate the "accident" 

under section 50.ll(a). Starkovich stated that Barmore had correctly refused to allow the inspector to accompany him and Claude to the accident 

scene because the inspector had no right to investigate an accident until 

USS's personnel had first investigated the accident in order to determine 

whether a reportable "accident" within the meaning of sections 50.2(h) and 

50.10 had occurred (Tr. 276-278). 

9. Barmore and Starkovich took the position that Barmore had only refused to allow the inspector to ride in the vehicle with Barmore and Claude 

to the accident scene. They maintained that the inspector was still free 

to go to the accident scene by an alternative means. Barmore and Starkovich 

agreed that it is the practice at the Minntac Mine for one of USS's safety 

engineers to accompany the inspectors on all inspections and to pro~ide 

the vehicle in which they travel to the various inspection sites. Although 

Barmore's refusal to allow the inspector to ride with him left the inspector 

without any obvious means of transportation, Barmore and Starkovich stated 

that the inspector could have called Thomas Wasley, another MSHA inspector 

who was also at the Minntac Mine on January 22, 1981, for the purpose of requesting that Wasley bring his MSHA vehicle to the mine office so as to 

transport the stranded inspector to the accident scene. Even though Barmore 

stated that the inspector could have requested permission to use any of 

about 50 USS vehicles which were parked close to the mine office, Starkovich 
stated that if the inspector had called him, he would have refused to take 

the inspector to the accident site until after he had first checked with 

Barmore to find out whether a "reportable" accident within the meaning of 

sections 50.2(h)(2) and 50.10 had occurred (Tr. 184; 192; 197; 199-201; 211; 

270; 273-275; 280; 287-291). 

10. When the inspector returned to his office on January 22, 1981, he 

told his supervisor that he believed Barmore had interfered with his right 

to inspect and that he would like to write a citation for Barmore's refusal 

to allow him to go to the accident site (Tr. 23). His supervisor agreed 

with him, so the inspector thereafter wrote Citation No. 293736 dated 

January 22, 1981, under section 104(a) of the Act alleging that USS had violated section 103(a) of the Act because: 

During a regular inspection on January 22, 1981, at approximately 12:10 p.m. Jim Barmore, Safety Engineer, was informed in the 

presence of this inspector that an accident had occurred at the 

Prindle Road crossing in the East Pit. The accident involved the 

Number 856 Bull Gang Service Truck which rolled over with three employees in a six-man cab. Upon expressing my intent to accompany 

the safety engineer and the miners' representative to the accident 

site, I was told by the safety engineer that he did not have to and 

would not permit me to visit the accident site. This action by the 

safety engineer interfered with an authorized representat~ve in 

carrying out the·requirements of section 103(a) of the Act. I was 

not given the opportunity to evaluate the cause of the accident or 

to determine if any mandatory safety or health standard had been 

violated. 

11. MSHA did not contest USS's determination that the rollover of 

Truck No. 856 on January 22, 1981, was an unreportable accident under section 50.2(h)(2) (Tr. 241). Therefore, MSHA did not have any reason to 

determine whether the accident should be investigated under section 50.ll(a). 

On February 5, 1981, about 2 weeks after the occurrence of the accident, 

however, MSHA received a complaint requesting that MSHA conduct an investigation of the accident. Pursuant to the complaint, Inspector Bagley returned to Minntac Mine on February 9, 1981, along with Inspector James C. 

King, for the purpose of conducting an investigation of the rollover accident which had occurred on January 22, 1981 (Tr. 28). The inspector on 

January 23, 1981, had already served Citation No. 293736, described in 

Finding No. 10 above, on Barmore (Tr. 26-27). The inspector terminated the 

cit.at ion after Barmore' s supervisor agreed to allow the inspector to 

examine Truck No. 856 and interview the employees who were riding in the 

truck (Exh. M-3, p. 4; Tr. 29). The inspector examined the truck which had 

been towed to the auto shop (Tr. 32). The truck had not been repaired in 

any way (Tr. 33-34). The inspector also interviewed Kaivola, the driver of 

the truck, on February 9, 1981, but the other two employees, Boucher and 

Woullet, who had been riding in the truck at the time of the rollover (Tr. 

39-40), were attending a vocational technical school and were unavailable 

for interviewing on February 9, 1981 (Tr. 41). 

621. 
12. As previously indicated above, Starkovich was supervisor of 

Minntac operations. When Inspector Bagley requested that Starkovich permit 

him to interview Roivanen, the supervisor of the employees who were riding 

in the truck at the time of the rollover, Starkovich stated that the inspector could interview Roivanen only in the presence of an attorney to be 

provided by USS (Tr. 30). Although the inspector requested several different 

times on February 9 that he be permitted to interview Roivanen, Starkovich 

or Rantala, a safety engineer, repeated each time that no interview could be 

conducted until such time as one of USS's attorneys was present (Tr. 35-36). 

Starkovich called Pittsburgh to ask about an attorney's availability, but no 

date was set on which the inspector.could return for interviewing Roivanen 

in the presence of an attorney. Starkovich indicated to the inspector that 

he would let him know when an interview of Roivanen in an attorney's presence 

could be arranged (Tr. 30). 

13. When Inspector Bagley did not hear from Starkovich on Tuesday, 

February 10, 1981, he returned to the Minntac Mine on Wednesday, February 11, 

1981, along with Inspector Wasley, and again asked that he be permitted to 

interview Roivanen. Starkovich repeated that Roivanen could be interviewed 

only in the presence of an attorney. Starkovich also advised the inspectors 

that if they were to go to see Roivanen out of an attorney's presence, that 

Roivanen would only look at them and would not attempt to answer their questions (Tr. 42-43; 244-245; 267; 365; 370). 

14. When Inspector Bagley returned to his office on February 11, 1981, 

he explained to his supervisor that he believed that Starkovich's repeated 

refusals to allow him to talk to Roivanen was an interference with an MSHA 

investigation and that he thought a citation should be written for that refusal (Tr. 43-44). His supervisor agreed with him and Inspector Bagley wrote 

Citation No. 293739 dated February 9, 1981, alleging a violation of section 

103(a) of the Act because: 

On February 9, 1981, at approximately 10:30 while attempting 

to continue an accident investigation involving the rollover accident of No. 856 Bullgang truck which occurred on January 22, 1981, 

in the East Pit, Inspector James C. King (A.R.#735) and myself 

(James R. Bagley, A.R.#782) were denied the right to confer with 

Cedric Roivanen, bullgang foreman. Upon expressing our intent to 

confer with the foreman, Steve Starkovich, supervisor of safety, 

U.S. Steel's Minnesota ore operations, informed us that we could 

not confer with the foreman unless a U.S. Steel corporate lawyer 

was present. On February 11, 1981, at approximately 11:00 a.m. 

during a subsequent attempt to confer with Cedric Roivanen, bullgang foreman, Steve Starkovich continued to deny Inspector Thomas C. 

Wasley (A.R.#902) and myself (James R. Bagley A.R.#782) the right 

to confer with the foreman. This action by Steve Starkovich constitutes interference with and impedence of three authorized MSHA 

representatives during the course of an MSHA accident investigation. 

15. When Inspectors Bagley and Wasley returned to the Minntac Mine 

622. 
on February 12, 1981, they served the above-described Citation No. 293739 

on Starkovich and he immediately called someone in order to find out when 

an attorney could be provided so that the citation could be abated. After 

he had completed the phone call, he advised Bagley that an attorney would be 

present the next day, February 13, at 1 p.m. so that they could interview 

Roivanen (Tr. 45; 246; 377). The inspectors also on February 12 interviewed 

Boucher and Woullet, the other employees who had been riding in the truck 

with Kaivola at the time of the rollover, by going to the vocational school 

and talking to them about 4 p.m. (Tr. 42; 248; 373-374). 

16. Roivanen was interviewed by the inspectors on February 13, 1981 

(Tr. 45; 248; 367). Roivanen stated that he had been advised by his supervisor that he should not talk to an MSHA inspector about the truck's rollover 

unless an attorney provided by USS was present (Tr. 334-335; 343). Roivanen 

experienced some anxiety when he was told that an attorney would have to be 

present at the interview, but it did not perturb him excessively because he 

said he did not think that he had done anything wrong (Tr. 334; 336). 

Roivanen was advised by Inspector Bagley that nothing might result from the 

inspectors' investigation of the truck's rollover, or that a citation or . 

order might be written as a result of the investigation (Tr. 86; 336; 338; 

369). Roivanen agreed that Kaivola had told him about the shifting of the 

truck's rear end and that he had forgotten about the matter at the end of 

the shift and did not make any oral or written report concerning the repair 

of the truck's rear-end alignment (Tr. 327-329). Roivanen also stated that 

he would have driven the truck after having been advised of the shifting 

rear end because shifting rear ends were connnon occurrences and that nothing, 

so far as he knew, had ever happened as a result of a shifting rear end prior 

to the accident on January 22, 1981, other than the fact that the tires would 

rub in the wheel wells so much that they would smoke extensively and would 

sometimes stall out the engines entirely so that the trucks couldn't be 

driven and had to be towed to the repair shop (Tr. 356; 358). Roivanen 

claimed that he was surprised when the rollover occurred on January 22, 1981, 

because he had never heard of such an accident as that prior to the time the 

truck flipped over (Tr. 333-334). 

17. As to whether the shifting rear end had been properly reported 

and recorded, Roivanen said that they had tried to start a procedure which 

involved the writing of walk-around reports by the men in his shovel-repair 

department (Tr. 330). At first the walk-around reporting forms were given 

to all the men, but they failed to fill them out (Tr. 355). Then the foremen tried giving the forms or sheets only to the employees to whom vehicles 

were assigned. They received almost no cooperation from the 130 men in 

their department (Tr. 351-352). The only way that they could have enforced 

the written system of submitting daily inspection reports would have been 

to have handed out disciplinary action against those who failed to fill out 

the slips. The foremen felt that disciplining the men over their failure 

to fill out slips would only cause general turmoil and the foremen reluctantly resorted to their former procedure under which the employees were 

still urged to fill out a walk-around sheet and place it on a clip board 

in the foreme~'s office if an actual repair was needed, but it was also 

H23 
permissible for an employee merely to report a needed repair orall¥ to his 

supervisor and then take a vehicle to the auto shop for repair after the 

supervisor had approved the making of the repair (Tr. 358). In the case of 

the rear-end problem reported by Kaivola in this proceeding, Roivanen said 

that Kaivola had reported the matter to him orally and that, if the matter 

had been taken care of as Roivanen intended, it would have been reported 

orally by Kaivola or Boucher or Woullet to the auto shop (Tr. 352; 355). 

The auto shop did keep written records of all repairs which were requested 

and the auto shop's records were maintained on a permanent basis with respect 

to approximately 654 vehicles used in the Minntac operations (Tr. 313-314). 

18. John Primozich was foreman in charge of the auto repair shops which 

performed all maintenance and repair work on the vehicles used in the Minntac 

operations (Tr. 292). He said that from 900 to 2,850 vehicles passed through 

the shops for maintenance within a single month (Tr. 294). He testified that 

it was common to see vehicles with shifting rear ends and that employees did 

not always turn them in for repair (Tr. 294). Often he would see shifting 

rear ends and other problems and ask that the vehicles be brought to the shop 

for repair before they were further used. Sometimes it was necessary for him 

to appeal to a supervisor before a given employee would cease operating a 

vehicle long enough for it to be repaired in the shop (Tr. 298). Primozich 

said that he would not personally continue to drive a vehicle with a 2-1/2-

inch shifting of the rear end because that sort of condition will continue 

to deteriorate and may cause a serious accident such as that which occurred 

on January 22, 1981 (Tr. 37; 322-323). It was Primozich's opinion that the 

rollover of Truck No. 856 was caused by leaves falling from the left rear 

spring so as to produce a lifting action between the wheels and the box or 

the ground (Tr. 304). 

19. After he had completed his investigation of the rollover accident 

which occurred on January 22, 1981, Inspector Bagley wrote Order of Withdrawal No. 293740 dated Yiarch 9, 1981, under section 104(d)(l) of the Act 

alleging a violation of section 55.9-1 because: 

On January 22, 1981, at approximately 11:25 a.m., an accident 

occurred near the Prindle Road crossing in the East Pit. The 

accident involved the Number 856 Bull Gang service truck which 

rolled over injuring three employees. A subsequent investigation 

revealed that the left side rear axle housing apparently shifted 

back which allowed the rear duals to contact the truck box. 

Statements made by Martin Kaivola, driver of the truck, and 

Richard Boucher, injured and witness, indicated that on January 21, 

1981, the day before the accident~ it was reported to their foreman, Cedric Roivanen, that the truck's rear end was shifted back 

approximately 2-1/2 inches. During a follow-up interview with 

Cedric Roivanen, Bull Gang Foreman, he confirmed that the shifting 

rear end had in fact been reported to him on January 21, 1981, but 

that he had forgotten about it. The company could produce no 

records of the unsafe condition being reported, hence did not 

demonstrate reasonable care in recording or maintaining a record 
of an equipment defect which was reported and which affected the 

safety of three employees. Tiiis constitutes an unwarrantable 

failure. 

20. Inspector Bagley's investigation of the rollover of Truck No. 856 

also caused him to write Order of Withdrawal No. 296501 dated March 9, 1981, 

under section 104(d)(l) of the Act alleging a violation of section 55.9-2 

because: 

On January 22, 1981, an accident occurred near the Prindle 

Road crossing in the East Pit. Tiie accident involved the Number 

856 Bull Gang service truck which rolled over injuring three employees. A subsequent investigation revealed that the left side 

rear axle housing apparently shifted back, which allowed the rear 

duals to contact the truck box. Statements made by Martin Kaivola~ 

driver of the truck, and Richard Boucher, injured and witness, 

indicated that on January 21, 1981, the day before the accident, it 

was reported to their foreman, Cedric Roivanen, that the truck's 

rear end was shifted back approximately 2-1/2 inches. During a 

follow-up interview with Cedric Roivanen, Bull Gang Foreman, he 

confirmed that the shifting rear end had in fact been reported to 

him on January 21, 1981, but that he had forgotten about it. The 

truck was not removed from service to correct the reported defect, 

but continued to be used for the remainder of the shift on which 

it was reported. Tiie truck was also used on the following afternoon shift and again during the shift on which the accident occurred. 

Tiie failure of the operator to act on information that gave him 

knowledge, or reason to know, that an unsafe condition existed, 

which affected the safety of three employees, is unwarrantable. 

21. Starkovich testified that USS's investigation of the rollover accident resulted in a conclusion that the weight of the truck and the speed at 

·which the truck was being driven contributed to the accident. USS's claim 

that the truck was traveling at a speed of at least 39 miles per hour when it 

turned over was based on a speed formula and calculations made by a highway 

patrolman using measurements supplied by USS's personnel (Tr. 249-250). Tiie 

formula was not supported at the hearing because Starkovich did not know what 

assumptions the highway patrolman had made about the fact that the truck had 

rolled over, thereby losing much of its weight, or what assumptions had been 

made as to the number of wheels which may have been on the ground to slide 

at any given time (Tr. 250-258). Kaivola, the driver of the truck at the 

time of the accident, stated that he was traveling between 30 and 35 miles 

per hour just before the accident occurred (Tr. 164; 173). Boucher, one of 

the employees riding in the truck when it rolled over, stated that he had 

driven the truck on the day before the accident and had noticed that the 

speedometer was not working (Tr. 382). Moreover, Boucher testified that the 

truck was equipped with a governor which would not permit the truck to be 

driven at a high rate of speed even if they had wanted to drive it fast (Tr. 

382). Primozich, foreman of the repair shop, stated that he had driven a 

similar vehicle at 30 miles per hour after the accident, but that driving , 
another vehicle did not add much to his determination as to what caused 

Kaivola's truck to roll over and that he did not know for certain what 

effect speed might have had in causing the accident (Tr. 306). 

22. The parties stipulated that James R. Bagley, James King, and Tom 

Wasley were duly authorized representatives of the Secretary at all relevant 

times, that Minntac Mine is owned and operated by USS, that products from 

the Minntac Mine enter commerce and that USS is subject to the jurisdiction 

of the Act and the Commission, that payment of penalties will not adversely 

affect USS' s ability to continue in business, .that USS demonstrated a goodfaith effort to achieve rapid compliance after being cited for alleged violations, that USS's history of previous violations is that reflected in 

Exhibit M-1, and that USS is a large operator (Tr. 12). 

Consideration of Parties' Arguments 

Docket Nos. LAKE 81-102-RM and LAKE 81-167-M 

Introduction 

In a notice of contest filed on February 23, 1981, in Docket No. LAKE 

81-102-RM, USS seeks review of Citation No. 293736 issued on January 22, 

1981, pursuant to section 104(a) of the Act, alleging a violation of section 

103(a) of the Act. In a proposal for a penalty filed on July 20, 1981, in 

Docket No. LAKE 81-167-M, the Secretary of Labor seeks assessment of a civil 

penalty for the violation of section 103(a) alleged in Citation No. 293736. 

Citation No. 293736, as modified on February 26, 1981, alleges that USS 

violated section 103(a) when one of USS's safety engineers, James Barmore, 

refused to allow Inspector Bagley to accompany him to the place where one 

of USS's trucks had rolled over while a driver and two other USS employees 

were riding in it (Exh. M-3). Barmore heard about the truck's rolling over 

while he, the inspector, and Larry Claude, a miners' representative, were 

walking up the hallway in USS's office building about noon. Barmore obtained his camera from his office and stated that he and Claude would have 

to go to the site of the place where the truck had rolled over, but Barmore 

refused to allow the inspector to accompany him and Claude because Barmore 

claimed that he was contractually obligated to conduct a company-union 

investigation of accidents. The inspector told Barmore that it was wrong 

for Barmore to refuse to allow him to go with Barmore to the scene of the 

truck's rollover, but Barmore, nevertheless, refused to allow the inspector 

to ride with him and Claude to the place where the rollover had occurred 

(Finding Nos. 1 and 2, supra). 

The inspector did not write Citation No. 293736 until he had returned 

to his office and had discussed the matter with his supervisor (Find·ing No. 

10, supra). The inspector believed that Barmore's refusal to allow him to 

go with Barmore and Claude to the place where the truck had rolled over was 
a violation of section 103(a) of the Act. 'J:_/ 

Inspection versus Investigation 

USS's brief (p. 4) argues that the inspector was at USS's mine for the 

purpose of conducting an inspection under section 103(a) of the Act when he 

learned that an accident had occurred on mine property. Upon learning of 

the accident, USS claims that·the inspector "decided that he should drop 

his regular inspection and begin an accident investigation" [Emphasis is 

part of USS's argument.]. USS's brief (p. 5) then claims that the Act 

clearly differentiates between regular inspections and accident investigations. A regular inspection, it is said, takes place under the authority 

of section 103(a), whereas accident investigations are governed by subsections (b), (d), (j), and (k) of section 103. USS notes that subsection (b) 

relates to hearings to be conducted by the Secretary with respect to accidents, subsection (d) requires operators to investigate all accidents, and 

that subsections (j) and (k) impose an obligation on operators to report 

accidents to the Secretary and give the Secretary authority to preserve 

the accident site and take necessary steps to protect people. USS emphasizes that absurd results would occur if operators had to preserve the 

scene of such minor accidents as a stubbed toe or a mashed thumb. Therefore, USS points out that the Secretary has defined the word accident in 

'J:_/ Section 103(a) of the Act reads as follows: 

Sec. 103. (a) Authorized representatives of the Secretary or the 

Secretary of Health, Education, and Welfare shall make frequent inspections 

and investigations in coal or other mines each year for the purpose of 

(1) obtaining, utilizing, and disseminating information relating to 

health and safety conditions, the causes of accidents, and the causes of 

diseases and physical impairments originating in such mines, (2) gathering 

information with respect to mandatory health or safety standards, (3) · 

determining whether an imminent danger exists, and (4) determining 

whether there is compliance with the mandatory health or safety standards 

or with any citation, order, or decision issued under this title or · 

other requirements of this Act. In carrying out the requirements of 

this subsection, no advance notice of an inspection shall be provided to 

any person, except that in carrying out the requirements of clauses (1) 

and (2) of this subsection, the Secretary of Health, Education, and 

Welfare may give advance notice of inspections. In carrying out the 

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

shall make inspections of each underground coal or other mine in its 

entirety at least four times a year, and of each surface coal or other 

mine in its entirety at least two times a year. The Secretary shall 

develop guidelines for additional inspections of mines based on criteria 

including, but not limited to the hazards found in mines subject. to this 

Act, and his experience under this Act and other health and safety laws. 

For the purpose of making any inspection or investigation under this 

Act, the Secretary, or the Secretary of Health, Education, and Welfare, 

with respect to fulfilling his responsibilities under this Act, or any 

authorized representative of the Secretary or the Secretary of Health, 

Education, and Welfare, shall have a right of entry to," upon, or through 

any coal or other mine. 
30 C.F.R. § 50.2{h){2), to the extent here pertinent, as "[a]n injury to 

an individual which has a reasonable potential to cause death". 

USS's brief {p. 6) points out further that section 50.10 requires an 

operator to report an accident to MSHA immediately only if the accident 

is of a type specified in section 50.2, that is, in this instance, an 

accident causing injuries which have a reasonable potential to cause 

death. Since the evidence in this case clearly shows that the three 

employees involved in the truck's rollover had sprained backs and a 

chipped elbow, no one has ever claimed that the accident here involved 

had a reasonable potential to cause death {Finding No. 4, supra). USS's 

brief continues its explanation by observing that if an accident does 

involve an injury with a reasonable potential to cause death, it must be 

reported to MSHA immediately under section 50.10, but once the accident 

is reported, section 50.ll(a) requires the MSHA District or Subdistrict 

Manager to determine within 24 hours after notification whether to 

conduct an investigation. 

Based on the provisions in the Act and regulations discussed above, 

USS's brief (p. 6) contends that the inspector had no decision-making 

authority to determine whether the truck's rollover was an accident 

requiring an MSHA investigation. USS argues that the inspector was 

insisting upon investigating an incident, rather than an accident having 

a reasonable potential to cause death. USS claims that the regulatory 

scheme can work only if USS and other operators are given a chance to 

determine what they are dealing with before deciding whether an accident 

has occurred which requires them to call MSHA immediately and await 

MSHA's 24-hour determination as to whether an investigation by MSHA will 

be conducted. USS's brief (p. 7) argues that Barmore explained to the 

inspector that it was necessary for Barmore to conduct a joint companyunion investigation and that Barmore did not actually prevent the inspector 

from going to the place where the truck had rolled over, but simply had 

forbidden the inspector to ride in the same vehicle in which he and the 

miners' representative were riding. It is said that Barmore did not 

want the inspector to accompany him to the scene of the accident because 

other USS personnel at the accident site would be likely, upon seeing 

the inspector with Barmore, to believe that management had endorsed 

MSHA's taking over an investigation which should have been a joint 

undertaking by management and the union. 

Disposition of USS's "Inspection versus Investigation Argument" 

There are so many fallacious aspects to USS's argument to the 

effect that an inspector can't examine the site of an accident which 

occurs when he is present at a mine for the purpose of conducting a 

regular inspection, that it is difficult to decide which erroneous 

aspect of the argument to consider first. It should first be observed 

that the purpose and scope of Part 50 of the Code of Federal Regulations 

is explained in Section 50.1 which states that: 

* * * The purpose of this part is to implement MSHA's authority 

to investigate, and to obtain and utilize information pertaining 

628 
to, accidents, injuries, and illnesses occurring or originating 

in mines. In utilizing information received under Part 50, MSHA 

will develop rates of injury occurrence * * * [and] * * * data 

respecting injury severity * * *· 

Part 50, in carrying out its announced statistical purpose, requires operators 

to report all accidents, regardless of severity, to MSHA on Forms 7000-1. 

In promulgating Part 50, MSHA recognized, however, that section 103(j) of 

the Act requires operators not only to notify the Secretary of the occurrence 

of accidents, but also requires the operator to "take appropriate measures 

to prevent the destruction of any evidence which would assist in investigating the cause" of accidents. Therefore, section 50.2(h) categorizes 12 

different kinds of accidents as to which an operator is required to give 

"immediate notification" under section 50.10. When MSHA receives "immediate 

notification" under section 50.10 that an accident has occurred, MSHA is 

then required by section 50.ll(a) to determine within 24 hours whether MSHA 

plans to conduct an investigation of the accident. Section 50.12 provides 

that the operator may not alter an accident site, without MSHA's permission, 

until the investigation has been completed. It is obvious, therefore, that 

the purpose for requiring "immediate notification" of serious accidents is 

to provide an orderly and immediate procedure under which operators will 

know within 24 hours after reporting such accidents whether they are required by section 103(j) to "take appropriate measures to prevent the destruction of any evidence which would assist in investigating the cause" 

of the accident. 

The fact that an operator is required to provide "immediate notification" as to a specific type of accident does not, howeve.r, relieve the 

operator of the obligation of reporting the accident to MSHA on a Form 

7000-1, just as the operator is required to report any other accident not 

serious enough to be included within the 12 categories of "immediate-notification" accidents listed in section 50.2(h). Section 50.20-5 not only requires the reporting of "immediate-notification" accidents on Forms 7000-1, 

but provides the operator with code numbers for identifying the 12 categories 

which are applicable to "immediate-notification" accidents. 

It can be seen from the explanation set forth above, that Part 50 was 

designed to provide MSHA with statistical data pertaining to all kinds of 

accidents regardless of their seriousness. MSHA is not precluded from 

investigating accidents which are of a less serious nature than "immediatenotification" accidents. Investigation of accidents not in the "immediatenotification" category, in my opinion, are provided for in section 103(a)(l) 

which Inspector Bagley's Citation No. 293739 claimed, until modified to 

section 103(a), was violated by USS in this proceeding. As the quotation 

of section 103(a) in footnote 2, page 12, supra, shows, inspectors are 

authorized to "make frequen~ inspections and investigations in coal or other 

mines each year for the purpose of (1) obtaining, utilizing, and disseminating information relating to health and safety conditions, the causes of 

accidents, and the causes of diseases and physical impairments originating 

in such mines * * *" [Emphasis supplied.] 

629 
The inspector's (Tr. 75) and my reliance on the phrase "the causes of 

accidents" in section 103(a){l) has, however, been taken away by the opinion 

of the D.C. Circuit Court of Appeals in United Mine Workers of America v. 

Federal Mine Safety and Health Review Commission, et al., Nos. 79-2518, ~ 

al.,~~ F.2d , decided February 23, 1982, in which the court majority 

stated on page 9 of its slip opinion that the Secretary of Labor is given no 

authority under clauses (1) and (2) of section 103(a) because the functions 

enumerated in those two clauses "appear" to have been delegated only to the 

Secretary of Health, Education, and Welfare [now Secretary of Health and 

Human Services]. Judge Tamm's dissenting opinion, at page 7, states that: 

* * * It is beyond cavil that only two of the four sets of purposes ~/ for which mine inspections are to be conducted fall 

under the aegis of the Secretary of Labor, * * * 

~/ As the majority notes, two of the four sets of purposes 

enumerated in § 103(a) fall under the investigatory domain of 

the Secretary of Health and Human Services. Maj. op. at 9 n.10. 

Specifically, the information-gathering purposes set forth under 

numbers (1) and (2) of § 103{a) are within the aegis of the 

Health and Human Services Secretary. By contrast, the Secretary 

of Labor is directed by § 103{a) to conduct inspections to determine "whether an imminent danger exists" and "whether there is 

compliance with the mandatory health or safety standards" or 

with other administrative orders promulgated under relevant ' 

legislation. 30 U.S.C. § 813(a) (Supp. II 1978). 

It is not surprising that the inspector was uncertain as to the exact 

portion of section 103(a) to rely on in writing his Citation No. 293739 

(Tr. 63) because, up to the time I read the court's opinion in the UMWA 

case, supra, I thought that the Secretary of Labor had authority to perform 

the functions set forth in both clauses (1) and (2) of section 103(a) and I 

thought that the only difference between the Secretary of Labor's and the 

Secretary of Health and Human Services' functions under those two clauses 

was that the Secretary of Health and Human Services could give advance warnings in doing his functions under section 103(a){l) and (2), whereas the 

Secretary of Labor could not. Since the inspector has modified Citation 

No. 293739 to allege a violation of section 103(a), his citation is on 

sound legal footing, but USS is still entitled to know exactly what provisions of section 103(a) authorize an inspector to investigate an accident 

if the inspector is on mine property in the first instance for the purpose 

of engaging in a regular inspection. It is sufficient for upholding the 

inspector's citation if a review of the Act's provisions shows that the 

inspector had authority to go to the scene of the accident which occurred 

while he was on mine property. 

The court's UMWA opinion, supra, ·ieaves the Secretary of Labor fully 

clothed with the following powers under section 103(a): 
Authorized representatives of the Secretary [of Labor] or 

the Secretary of [Health and Human Services] shall make frequent 

inspections and investigations in coal or other mines each year 

for the purpose of * * * (3) determining whether an imminent 

danger exists, and (4) determining whether there is compliance 

with the mandatory health or safety standards or with any citation, order, or decision issued under this title or other requirements of this Act. * * * [Emphasis supplied.] 

The language quoted above shows beyond dispute that even though the inspector 

had come to the Minntac Mine on January 22, 1981, to make a regular inspection, he is authorized to make frequent inspections and investigations and 

that there is nothing in section 103(a) which requires that such investigations be restricted to those which have been reported by an operator as 

"immediate-notification" accidents under section 50.10. Proceeding further 

into section 103(a), it is further beyond dispute that the inspector on 

January 22, 1981, had authority to inspect or investigate any place on mine 

property where an imminent danger might exist or where a violation of a mandatory health or safety standard might occur. 

It is worth noting that both section 104(a) of the Act, governing the 

issuance of citations for violating the mandatory health and safety standards, 

and section 107(a), governing issuance of imminent danger orders, provide 

that those provisions are applicable regardless of whether an inspector is 

engaging in an "inspection or investigation". There is nothing in either 

section 104(a) or in section 107(a) which provides that the word "inspection" 

applies only if the inspector is conducting an inspection authorized under 

section 50.11 after an "immediate notification" of an accident under section 

50.10. 

It would be fairly easy to argue that there is nothing about a truck's 

rolling over which could possibly be considered to be an imminent danger. 

·That sort of conclusion, however, is not supported by the facts because 

Barmore, one of USS's safety engineers, testified that one of the primary 

concerns he had when he got to the scene of the accident was whether a leaking tank might cause a fire and that he asked one of the foremen to keep 

people away from the truck for that reason (Tr. 186-187). After the inspector conducted an investigation of the truck's rollover at a subsequent 

time, pursuant to a complaint filed under section 103(g)(l) of the Act, the 

inspector cited USS for two violations of the mandatory health and safety 

standards with respect to events leading up to the truck's rolling over. 

The foregoing considerations show that Inspector Bagley had authority 

under section 103(a) to go to the scene of the truck's rollover for the 

purposes given in clauses (3) and (4) of section 103(a) and that Barmore 

unlawfully restrained the inspector from carrying out his functions under 

the Act when Barmore refused to allow the inspector to travel to the scene 

of the truck's rollover. 

The position taken in USS's brief to the effect that the inspector 

had no authority to investigate the truck's rollover was, in some respects, : ,:-,;. ···-
not supported by USS's own witnesses. If it were true, as USS argues, that 

an inspector may only investigate "immediate-notification" accidents, then 

the inspector would have had no authority to investigate the truck's rollover even if he had been standing within 1 foot of the place where the truck 

flipped over. Yet Starkovich, one of USS's witnesses, stated that if the 

inspector had been riding by the place where the truck rolled over at the 

time it flipped over, he would have had a right to investigate it because 

"[h)e's got a right to stop there at that timeM (Tr. 281). Starkovich 

recognized that he couldn't logically use the various provisions of the Act 

like a straitjacket to prevent the inspector from investigating an accident 

which has occurred in his presence, even if the inspector may have come to 

the mine in the first instance only to engage in a regul~r inspection. 

USS's argument that an inspector should not be permitted to go to the 

site of an accident until the operator has had a chance to determine whether 

it is an "immediate-notification" accident has other serious flaws. One of 

them is that if the truck's rollover could be considered to be an "immediate 

notification" accident only if it resulted in injuries having a reasona~le 

potential to cause death, that determination did not depend at all on Barmore's 

claim that he had to go to the scene of the accident to determine whether an 

"immediate-notification" accident had occurred. ·Barmore had no medical 

training which qualified him to make a conclusion that an injury might have 

a reasonable potential to cause death (Tr. 180). The three USS employees 

injured in the truck's rollover were taken to a clinic before Barmore ever 

arrived at the scene of the accident (Tr. 140; 188; 219). The determination 

of whether an accident has occurred involving a reasonable potential to cause 

death would have to be based on the opinion of the medical experts who 

examined anyone suffering from injuries caused by the accident. 

Since the injured employees had been taken to a clinic immediately after 

the accident, Barmore, the inspector, and the miners' representative could 

have eaten their lunch in a normal fashion and then Barmore could have 

called the clinic or hospital and could have asked the physician who examined the three employees whether their injuries had a reasonable potential 

to cause death. Inasmuch as all of the injuries were. minor in nature, the 

physician's answer would have been in the negative and Barmore could then 

have advised Bagley that the rollover had not resulted in an "immediatenotification" accident, that the accident would be reported in due course 

on a Form 7000-1, and that there would be no occasion for MSHA to determine 

within 24 hours under section 50.ll(a) whether an investigation would have 

to be conducted. If the procedure outlined above had been followed, there 

would have been no reason for Barmore to go to the scene of the rollover 

nor for Barmore to have prohibited the inspector from going to the scene, if 

the only reason for Barmore's conducting a combined company-union investigation was to determine whether an "immediate-notification" accident had 

occurred. 

Exclusivity of Management-Union Investigation 

USS' s brief (p. 7) claims that Barmore "explained in detail why it was 

not appropriate for the inspector to ride with him to a joint union/management 
safety investigation". The preponderance of the evidence shows that Barmore 

did not explain anything in detail until after he had returned from the 

accident investigation. Claude, the miners' representative, testified that 

the entire conversation between Barmore and the inspector, before they left 

to investigate the rollover, did not take more than 2 minutes (Tr. 362) and 

that the most that wa:s said about the joint union-management investigation 

was stated by Barmore after he had returned from the accident scene (Tr. 

363). The inspector. could recall no specific reference to the union contract and said Barmore had, at most, referred to his contractual obligation 

to take Claude with him when he went to investigate the accident (Tr. 55; 

65; 122). Even Barmore's testimony about the nature of his explanation of 

the joint union-company investigation is unconvincing because his answers 

are evasive and he was not even certain as to the specific section or wording of the ~ontract which required him to conduct a joint union-management 

investigation (Tr. 211). A "detailed" explanation of USS' s ·obligation to 

conduct joint union-management investigations ought to include a reading of 

the portion of the contract which allegedly required such an exclusive investigation out of the presence of an MSHA inspector. 

According to Barmore's testimony, so many USS personnel had gathered at 

the scene of the accident, that it was necessary for him to ask someone to 

keep people away from the scene because Barmore was fearful that a leaking 

tank might cause a fire (Tr. 186-187). Moreover, there were other USS personnel, such as Tim Jayson, at the scene with more expertise in investigating vehicular accidents than Barmore possessed (Tr. 187; 189). Additionally, Barmore saw Jim Dunston, another miners' representative, at the scene 

of the accident and Barmore asked him to participate in the accident investigation so that Barmore and Claude could return to the mine office where 

Barmore had left the inspector (Tr. 186). When it is considered that Barmore left the measurement of distances of skid marks, etc., to the discretion 

of other USS personnel, when it is realized that Barmore entrusted the union 

aspect of the investigation to a miners' representative other than the representative who had accompanied Barmore to the scene, when it is considered 

that Barmore left the determination as to the cause of the rollover to 

other USS personnel, when it is recognized, as hereinbefore noted, that 

Barmore had to leave the determination of whether the accident involved 

injuries having a reasonable potential to cause death to other persons, it 

is hard to find anything about the accident which depended upon anything 

which Barmore himself did--other than perhaps the making of some pictures. 

The facts discussed above largely destroy Barmore's claim that if the inspector had accompanied Barmore to the scene, USS personnel would have concluded that the investigation of the truck's rollover was being conducted 

by MSHA, instead of by USS and the union, because the inspector·would have 

been only a single person amid a host of USS personnel who had come to look 

at the scene of the truck's rollover. 

It should also be pointed out that most investigations of accidents 

are conducted by a group of people who represent the company, the union, 

and both State and Federal agencies charged with administering safety regulations. Each person who participates in an accident investigation makes 

633 
his or her own conclusions as to the cause of the accident and arrives at 

his or her own recommendations as to the steps which should be taken to 

avoid similar accidents in the future. Having an MSHA inspector present 

when investigations are being made would have no deleterious effect on 

USS's ability to conduct a joint company-_;inion investigation. 

Inspector's Shortcomings 

USS's brief (p. 7) finds· fault with the inspector for failing to request that he be taken to the site of the accident after Barmore and Claude 

had returned from the scene of the rollover and had shown him the pictures 

Barmore had made ·.and had given him a description of what had happened. As 

I have indicated above, Barmore spent more time after his return from the 

accident investigation, than he had before the investigation, explaining 

why he could not take the inspector to the accident site. The inspector, 

having just heard the reasons for his being precluded from going to the 

accident site reemphasized, would hardly have had any reason to reassert 

his desire to be taken to the scene of the accident. 

USS's brief (p. 7) also criticizes the inspector for having failed to 

issue an order to preserve the scene of the accident. That criticism is 

inconsistent with USS's primary argument that the inspector had no decisionmaking authority to determine whether an accident would be conducted under 

section 50.ll(a). As previously explained, the primary purpose for requiring "immediate notification" of accidents under section 50.10 is to enable 

MSHA to advise the operator within 24 hours whether the scene of the accident has to be preserved. The inspector 's testimony shows that he had not 

intended to go to the scene of the accident for the purpose of conducting 

an investigation under section 50.ll(a) (Tr. 57). Therefore, he certainly 

would have had no reason to issue an order pursuant to section 103(j) of 

the Act requiring USS to preserve the scene of the accident. 

It is a fact, however, that the inspector could have argued, pursuant 

to section 103(k) of the Act, that since he was present when Barmore 

learned about the accident, the inspector had an absolute right to accompany Barmore to the scene of the accident because, under section 103(k), 

when an inspector is present at the scene of an accident, as Inspector 

Bagley was in this instance, the inspector has authority to issue appropriate orders "to insure the safety of any person in the coal or other mine" 

where the accident occurred. Section 103(k) also provides that if a recovery plan needs to be implemented, the operator is required to obtain the 

approval of the MSHA inspector before the recovery plan is implemented. 

When a truck rolls over, it is often necessary to extricate injured people 

from the truck and such recovery efforts may take hours to accomplish. 

Therefore, since Inspector Bagley was present when Barmore learned of the 

accident, Barmore should have taken the inspector with him to the scene of 

the accident lest he encounter some difficulties about which the inspector's 

advice and consent would have been useful, if not required. 

634 
The Factual Question of Inspector's Preclusion from Going to Accident Site 

USS's brief (pp. 7-9) argues that Inspector Bagley was only told that 

he could not be permitted to ride to the scene of the accident with Barmore. 

It is contended that nothing was said or done which would have precluded the 

inspector from continuing his inspection of the mine property. It is 

further claimed that the inspector was left in an office with a phone and 

that he was free to.call other USS personnel or the other MSHA inspector, 

who was elsewhere on mine property, for the purpose of obtaining a substitute truck to continue his inspection or travel to the scene of the accident. 

USS claims that while it was USS's policy to have a management representative accompany an inspector while he is on mine property, that he has the 

power under the Act to go anywhere on mine property he may choose to go even 

if USS's management does not consent to his traveling alone. 

The facts are at odds with the foregoing arguments. When Barmore 

initiated his conversation with the inspector, advising him that he was 

precluded from going to the accident site, his attitude was belligerent. 

Both the inspector and the miners' representative indicated that Barmore 

asked the inspector where in the blank he thought he was going (Finding No. 

2, supra). The use of objectionable words in a question of that nature 

does not initiate a conversation in a manner which shows that the person 

asking the question is planning to take much time to explain why the question has been asked. The miners' representative testified that the initial 

conversation with the inspector did not take more than 2 minutes and that 

most of the explanation was done after Barmore and he had returned from the 

scene of the accident (Tr. 362-363). 

The inspector's view of Barmore's actions and statements are best expressed in the following questions and answers (Tr. 118): 

Q. Was there anything he [Barmore] said to you which 

you -- you personally would have -- would have or could have 

interpreted as saying that "You can't go to the accident 

scene in my vehicle, but you can walk down there if you want 

to"? 

A. No. 

Q. Okay. So the impression you got from everything he 

said to you was that you can't go, period? 

A. That's true. 

Barmore's attitude after his return from the accident scene continued 

to be bellicose, as is obvious in the inspector's testimony at transcript 

pages 22-23: 

Q. I see. During -- during this conversation in the --

in the office, did you have any conversations with Mr. Barmore 

635 
concerning your right to ,-- to speak with the employees of U. S. 

Steel while you were on the mine property? 

A. Now, there was one incident when I came back to the 

office after I'd eaten my lunch and Larry 'Claude had called me 

and told me that I could come back to Mr. Barmore's office. 

After I went back to the office, it was, um -- there was a few 

moments of silence there. It was tense. And, ah, sort of in 

order to get a conversation going, I mentioned that, ah, on my 

way down to the hygienist's office, I'd been talking to an employee of U. S. Steel. I don't know his name. This employee had 

asked me if I was an MSHA inspector on the property. I said yes, 

I was, and he wanted to discuss with me some things that had taken 

place earlier at the property, ah, about citations, orders, things 

of that nature. 

But I mentioned that to Mr. Barmore, that this guy was a 

pretty nice guy. And Jim [Barmore] got kind of upset. He said I 

didn't have any right to talk to anybody on the property about 

those kinds of things without him or another safety engineer 

present. 

Q. I see. 

A. I pointed out that it wasn't me that had solicited th~t 

that conversation. I was -- I was asked the question, and I 

answered it. 

Since the testimony of the miners' representative corroborates the inspector's testimony to the effect that Barmore made no detailed explanation 

about his obligation to perform a union-company investigation, and since 

Barmore's attitude was belligerent to every effort made by the inspector to 

bring about amiable discussions, I conclude that the inspector was fully 

entitled to believe that he had been p~ecluded from going to the accident 

site at all on January 22, 1981, the day the accident occurred. 

The evidence also shows that Barmore's refusal to allow the inspector 

to accompany him and Claude to the accident site effectively precluded the 

inspector from going there by any other means. First, it is agreed that it 

was USS's practice to provide a safety engineer to accompany inspectors on 

mine property and it was USS's policy to provide a vehicle, driven by USS's 

employee, to transport the inspectors to any place on mine property where 

inspections were to be made (Finding No. 9, supra). Further, it was USS's 

policy to have the safety engineer make all arrangements for inspections to 

be made, including obtaining a miners' representative to accompany the inspector during his tour of the mine, pursuant to section 103(f) of the Act 

(Tr. 267; 269). In such cil:'cumstances, 'When Barmore refused to permit the 

inspector to accompany him and Claude to.the accident scene, the inspector 

was precluded from going at all becaus~ the inspector was left without 

transportation, without a safety engine¢I'. to accompany him, and without a 

miners' representative to accompany him~ Although Barmore claimed that the 

636 
inspector could have requested permissiun to use any of about 50 USS vehicles 

parked near the mine office (Tr. 197), it is a fact that Starkovich, Barmore's 

supervisor, testified that if the inspector had asked him for a vehicle to go 

to the scene of the accident, he would have refused to take the inspector to 

the scene of the accident until he had first checked with Barmore to find out 

what sort of accident was involved (Tr. 275; 280). 

Although USS also claimed that Inspector Bagley could have called the 

other inspector who was on mine property that day, Bagley said that he did 

not know where the other inspector was and Starkovich also stated that he 

didn't know for certain where the other inspector was (Tr. 56; 272). Even if 

the other inspector had been located, a controversy would undoubtedly have 

occurred because the other inspector was also accompanied by another safety 

engineer who would have been reluctant to allow the other inspector to leave 

his presence for the purpose of taking Inspector Bagley to the scene of an 

accident to which Barmore had already ruled that Inspector Bagley could not 

go. 

Therefore, I find that none of the excuses given by USS for refusing to 

allow the inspector to accompany Barmore to the scene of the accident are 

supported by the facts in this case, or the provisions of the Act, or Part 

50 of the Code of Federal Regulations, and that USS violated section 103(a) 

of the Act when its agent prevented Inspector Bagley from going to the scene 

of the accident on January 22, 1981. I also find that Citation No. 293736 

was properly issued and should be affirmed. 

Assessment of Civil Penalty 

In the preceding portion of this decision, I have found that a violation 

of section 103(a) of the Act occurred when Barmore refused to permit the inspector to examine the place where the truck rolled over. MSHA has requested 

that a civil penalty be assessed for that violation in the proposal for a 

penalty filed in Docket No. LAKE 81-167-M. The six criteria set forth in 

section llO(i) of the Act must be considered in assessing civil penalties. 

On February 1, 1982, Unit B of the Fifth Circuit issued an opinion in 

Allied Products Co. v. Federal Mine Safety and Health Review Commission, 

No. 80-7935, reversing an administrative law judge's decision as to which 

the Commission had denied a petition for discretionary review. The court 

agreed that the violations alleged by MSHA had occurred, but it remanded the 

case so that the amounts of the penalties could be recalculated. The court 

found that MSHA had waived the normal formula set forth in 30 C.F.R. § 100.3 

for assessing penalties and then had failed to make the narrative findings 

which are required to be made when MSHA waives the routine penalty formula. 

The court also found that the administrative law judge had failed to explain 

how he had considered some of the six criteria. 

There is nothing in the court's decision to show that the court was 

aware of the fact that the Commission has ruled in several of its decisions 

that administrative law judges are not bound, in cases in which hearings have 

637 
been held, by the assessment procedures which are employed by the Assessment Office in proposing civil penalties (Rushton Mining Co., 1 FMSHRC 794 

(1979); Shamrock Coal Co., 1 FMSHRC 799 (1979); Kaiser Steel Corp., 1 FMSHRC 

984 (1979); U. S. Steel Corp., 1 FMSHRC 1306 (1979); Pittsburgh Coal Co., 

1 FMSHRC 1468 (1979); and Co-Op Mining Co., 2 FMSHRC 784 (1980)). Of course, 

when a judge determines the size of a civil penalty on the basis of evidence 

presented in a hearing, he must specifically show how he has considered the 

six criteria. I do not believe that the court's decision in the Allied 

Products case requires me to determine a penalty by using the provisions of 

section 100.3 so long as I explain clearly how I have applied the six criteria in arriving at a penalty. 

History of Previous Violations 

It has always been my practice to increase a penalty under the criterion 

of history of previous violations if the evidence in a given proceeding 

shows that the operator has previously violated the same section of the regulations which is before me in a given case. Since I did not preside at the 

hearing in this proceeding, I could not inquire of MSHA's counsel whether 

USS has previously violated section 103(a) of the Act. Inasmuch as the 

record does not contain the sort of information which I normally use for 

assessing penalties under the criterion of history of previous violations, 

it is necessary in this proceeding for me to depart from my usual practice 

and use the assessment formula in section 100.3(c) for the purpose of evaluating USS's history of previous violations. 

Exhibit M-1 reflects that for the 24 months preceding the occurrence 

of the violations involved in this proceeding, USS paid penalties for a 

total of 560 violations, or an average of 280 violations per year. Section 

100.3(c)(l) shows a table which assigns penalty points based on an operator's 

average penalties per year. According to that table, if an operator has an 

average of over 50 penalties per year, five penalty points are required to 

be assigned for each violation being considered. Inasmuch as USS has paid 

penalties for more than 50 violations per year, USS's history of previous 

violations requires that five penalty points be assigned in this proceeding 

for each violation which is hereinafter found to have occurred. 

Section 100.3(c) also contains paragraph (2) which is required to be 

used in assigning penalty points under the criterion of history of previous 

violations. Under paragraph (2), up to 15 penalty points are assignable if 

the violations written by an inspector on each day he works at a given mine 

total more than 1.7 violations. Paragraph (2) of section 100.3(c) cannot 

be used in this proceeding to assess penalties because Exhibit M-1 does not 

show the inspection days which were involved in USS's having paid penalties 

for 280 violations per year. Because of the lack of information in the 

record, I cannot use paragraph (2) of section 100.3(c) to assign any penalty 

points under the criterion of history of previous violations. 

It should also be noted that if the formula in section 100.3 is used 

only for determining a portion of a,:glyen civil penalty under a single 

<638 
criterion, an under-assessment as to that criterion will result because 

thi;:; assignment of penalty points under section 100.3 is intended to be 

cumulative as the points are determined in sequence for each of the six 

criteria and the size of the penalty should increase as each criterion is, 

in turn, considered. For example, when the five penalty points determined 

above under section 100.3(c)(l) are applied in the conversion table in 

section.100.3(g), the amount of the penalty is only $10, whereas if those 

same five penalty points were to be added to a cumulative total of 30 

assigned points, so as to increase the number of penalty points from 30 to 

35, the additional five points would increase the total penalty from $90 

for 30 penalty points to $130 for 35 penalty points, or would increase the 

penalty by $40, instead of the penalty of $10 which results if one applies 

five penalty points to the bottom of the conversion table. Since I .am using 

the provisions of section 100.3(c)(l) solely because of limitations in the 

record, I do not believe that my assessment of a penalty of $10 under history of previous violations can be considered to be improper, even though I 

shall be assessing a smaller amount under the criterion of history of previous violations than is warranted for an operator as large as USS. 

Size of the Operator's Business 

Finding No. 22, supra, indicates that the parties have stipulated·that 

USS is a large opera~or. It has always been my practice to use the criterion of the size of an operator's business as a gauge of how large a penalty 

should be assessed under the other criteria. For example, if a violation 

is so serious in a small mine that its occurrence is very likely to kill or 

seriously injure one or more employees, I would normally assess a penalty 

of not more than $3,000 or $4,000 under all six criteria. If a moderately 

large operator should be involved, I would probably increase the penalty up 

to $6,000 or $7,000 under all six criteria. If a large company, such as 

USS, should be involved, I would probably assess a maximum penalty of 

$10,000 under all six criteria. 

Under the foregoing principles, any penalty assessed in this proceeding should be in an upper range of magnitude if I should find that the 

other five criteria have adverse implications. 

Effect of Penalties on USS's Ability To Continue in Business 

Finding No. 22, supra, shows that the parties have stipulated that 

the payment of penalties will not adversely affect USS's ability to continue in business. The criterion of economic condition is of primary importance only in those cases in which an operator proves that it is experiencing financial losses of such magnitude that payment of penalties would 

prevent it from being able to discharge the interest on its indebtedness, 

pay its employees, and purchase necessary supplies. In this proceeding, 

the fact that payment of penalties will not affect USS's ability to continue 

in business will be applied only in the sense that any penalty required by 

the other criteria will not need to be scaled down to prevent the obligation 

of payment of the penalty from causing"'uss to discontinue in business. 
Good-Faith Effort To Achieve Rapid Compliance 

Finding No. 22, supra, shows that the parties have stipulated that USS 

demonstrated a good-faith effort to achieve compliance after the inspectors 

had issued the citations involved in this proceeding. Under the assessment 

formula in section 100.3, an operator may be assigned up to a maximum of 10 

points under the criterion of whether the operator made a good-faith effort 

to achieve rapid GOmpliance. Under section 100.3(f), if the operator demonstrates a normal good-faith effort to achieve compliance, that is, the operator achieves compliance within the time allowed by the inspector, the 

penalty is neither increased nor decreased under the good-faith abatement 

test. If the operator shows recalcitrance about compliance with the standard 

cited, up to 10 penalty points may be assigned. On the other hand, if the 

operator demonstrates an outstanding effort to achieve compliance by correcting the violation in much less time than that given by the inspector, the 

penalty otherwise assessable under the other criteria is reduced by up to 10 

penalty points. 

It has been my practice to use the same principles set forth in section 

100.3(f) insofar as penalties are determined by the operator's good-faith 

effort to achieve rapid compliance, the only difference being that I sometimes add more than an equivalent of 10 penalty points when an operator 

deliberately refuses to correct a violation which has been cited, and I have 

decreased a penalty by more than the equivalent of 10 penalty points when 

the evidence in a given proceeding showed that the operator had shut down 

his entire operation in order to correct a violation in much less time than 

the inspector had allowed. 

In this proceeding the parties have stipulated that USS "demonstrated 

good faith in abating the citations at issue within the time given for 

abatement" (Tr. 12). The stipulation is satisfactory for assessing a penalty 

under the criterion of good-faith abatement with respect to Citation No. 

293736 because, although the inspector failed to insert any termination due 

date in the citation when it was written, the inspector modified the citation 

on February 26, 1981, to insert a termination due date of February 9, 198L 

The inspector had terminated the citation on February 9, 1981, by stating 

that USS had allowed him to inspect No •. 856 truck and interview the three 

employees involved in the rollover of the truck. Since USS abated the violation within the period of time allowed by the inspector, there was normal 

abatement and the penalty otherwise assessable under the other five criteria 

should neither be increased nor decreased as a result of USS's normal effort 

to achieve rapid compliance. 

Gravity 

The violation of section 103(a) was moderately serious because Barmore's 

refusal to permit Inspector Bagley to accompany him an~ Claude to the scene 

of the truck's rollover prevented an MSHA inspector from being able to carry 

out his functions as an inspector, those. functions being, as hereinbefore 

explained, the checking of accident sites to determine whether an imminent 
danger exists and whether violations of the mandatory health and safety 

standards have occurred. USS claims that inspectors have the power to go 

anywhere on mine property without the operator's permission, citing Judge 

Melick's decision in Summitville Tiles, Inc., 2 FMSHRC 740 (1980), in which 

he held that "a warrantless nonconsensual MSHA inspection of Summitville 

was legally permissible". USS asserts also that it was not necessary for 

the inspector to obtain the operator's knowing consent prior to making an 

inspection. The fact remains that Barmore's sudden, hostile, and arrogant 

manner of forbidding the inspector to accompany him precluded the inspector 

from being able to inspect the scene of the accident when he could have been 

in a position to determine whether an imminent danger existed and whether 

any health and safety standards had been violated~ In depriving the inspector 

of a means of transportation, in terminating his ability to have one of USS's 

safety engineers as an escort, and in preventing the inspector from having a 

miners' representative available to accompany him, Barmore effectively denied 

the inspector from being able to travel to the scene of the accident (Finding 

Nos. 1 through 4, 9 and 10, supra). 

Barmore's refusal to permit the inspector to go to the scene of the 

accident on January 22, 1981, was so upsetting to the inspector that he 

returned to his office .so as to discuss the matter with his supervisor and 

wrote a citation alleging that USS had violated section 103(a) of the Act in 

precluding him from inspecting the scene of the truck's rollover. That 

citation was served upon Barmore the next day, January 23, 1981. The citation was not terminated until February 9, 1981, when the inspector was permitted to examine the truck after it had been towed or hauled to USS's auto 

repair shop. The delay which resulted in the inspector's being able to 

examine the truck and interview witnesses not only prevented the inspector 

from being able to get first-hand information at the scene of the accident, 

but brought about a considerable duplication of effort which could have been 

avoided if the inspector had been permitted to accompany Barmore to the 

scene of the accident in the first instance. 

Considering the demoralizing effect which Barmore's action had on 

MSHA's inspection responsibilities, a penalty of $500 is warranted under 

the criterion of gravity. 

Negligence 

Barmore's action in preventing the inspector from going to the scene 

of the accident was deliberate and constituted a high degree of negligence •. 

Barmore had a certain amount of disdain for the inspector simply because 

the inspector tries to do his job with as little abrasiveness as possible. 

The foregoing conclusion is supported by Barmore's answers to the following 

questions (Tr. 201-202): 

Q. I'll attempt to rephrase it. So it would be reasonable, 

would it not, on the part of Inspector Bagley to take your refusal to allow him to accompany you.to the accident site as a 

refusal to permit him to go to the accident site at all? 

~641 
A. I can't read Jim Bagley's mind. I don't know how he 

thinks. 

Q. I'm not asking you that. 

A. Yeah. Okay. 

Q. I'm just asking if it would not be reasonable. 

A. Well, considering Jim Bagley, yeah. But not -- for me. 

If I was an MSHA inspector, I would not have, you know --

The Commission has indicated that judges are to avoid being critical of 

management (Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981), but it is 

difficult to appraise negligence in a given case without examining the attitude of the operator's supervisory personnel. Barmore's indifference about 

the way he treated inspectors would not be as strong a reason for adversely 

evaluating USS's management if Barmore's supervisor had not believed that 

Barmore should be upheld in his denial of the inspector's right to go to the 

scene of the accident and if Barmore's supervisor had not also stated that 

he would have refused to take the inspector to the scene of the accident 

until he had first checked with Barmore to see if such action was consistent 

with Barmore's refusal to take the inspector to the scene of the accident 

in the first instance (Tr. 275; 280; Finding No. 9, supra.). 

Barmore's use of rough language in addressing the inspector at the 

outset of the denial was an indication of his lack of ordinary courtesy 

(Tr. 19; 136-137). Barmore's attitude toward the inspector after Barmore 

had returned from the scene of the accident continued to be hosti~e and 

bellicose in that he upbraided the inspector even for talking to a USS employee who asked the inspector a question while the inspector was walking 

down the hall toward Barmore's office (Tr. 22). In short, at no time during 

the hearing did any of USS's supervisory personnel make any effort to show 

that they disagreed with the manner in which Barmore had acted even though 

they otherwise approved of his action as a matter of general principle. 

In view of the fact that USS's _violation of section 103(a) was deliberate and was done with considerable animosity and hostility which had an 

adverse effect on MSHA's inspection program in general, I find that the 

refusal to permit the inspector to go to the scene of the accident was done 

with a sufficiently high degree of negligence as to warrant assessment of 

a civil penalty of $1,000 under the criterion of negligence. 

By way of summary, I have found that a large operator is involved, 

that there was a normal good-faith effort to achieve compliance, that there 

is insufficient evidence to support more _than a minimal penalty under the 

criterion of history of previous vi~lations, that payment of penalties will 

not adversely affect USS' s ability. to ·continue in business, that the violation was moderately serious, and that ·1t involved a high degree of negligence. The total penalty of $1,SlO_assessed under the criteria of gravity, 

642 
negligence, and history of previous violations would, of course, be less 

than that amount if a large operator were not involved, if payment of 

penalties would have an adverse effect on USS's ability to continue in 

business, and if USS had showed other than a normal good-faith effort to 

achieve rapid compliance. 

I am aware that MSHA's brief (pp. 8 and 13) proposed a penalty of only 

$600 for the violation of section 103(a), but it is obvious that MSHA's 

brief did riot consider in detail the evidence of record which makes the 

violation more serious and more negligent than the violation would have 

been if it had been done in an atmosphere of professionalism and courtesy 

which should prevail when the personnel involved have been trained in 

their fields of endeavor as is true of those who comprise USS's management 

(Tr. 180-181; 238-239). 

Docket Nos. LAKE 81-103-RM and LAKE 81-168-M 

Introduction 

In a notice of contest filed on February 23, 1981, in Docket No. 

LAKE 81-103-RM, USS seeks review of Citation No. 293739 issued on February 

9, 1981, pursuant to section 104(a) of the Act, alleging a violation of 

section 103(a) of the Act. In a proposal for a penalty filed on July 20, 

1981, in Docket No. LAKE 81-168-M, the Secretary of Labor seeks assessment 

of a civil penalty for the violation of section 103(a) alleged in Citation 

No. 293739. 

Citation No. 293739 alleges that Starkovich, USS's supervisor of Minntac 

operations, refused to allow Inspector Bagley and two other inspectors to 

interview Roivanen, USS's foreman of three employees who were riding in a 

truck when it rolled over, unless one of USS's lawyers was present. The 

inspectors asked to talk to Roivanen three different times on February 9, 

1981, and returned to the mine for the purpose of interviewing Roivanen on 

February 11, 1981. All requests were denied until such time as an attorney 

could be obtained. Inspector Bagley returned to the mine on February 12, 

1981, and served Starkovich with Citation No. 293739 alleging a violation of 

section 103(a) because the inspector believed that Starkovich's refusal to 

allow him to talk to Roivanen until an attorney could be provided amounted 

to interference and impedence of three inspectors who were engaged in an 

accident investigation. After Starkovich was served with the citation, 

he made a phone call to USS's lawyers in Pittsburgh and an attorney was 

made available so that the inspectors were able to interview Roivanen 

the next day, February 13, at 1:00 p.m. (Finding Nos. 12 through 15, 

supra). 

The Right to Counsel 

USS's brief (pp. 9-13) argues for five pages that it did not impede 

the inspectors' investigation by insisting that Roivanen be provided with 

representation by one of USS's attorneys before he was interviewed by the 

inspectors. The only case cited throughout USS's purely legal arguments is 

the Commission's decision in Everett Propst and Robert Semple, 3 FMSHRC 304 

·'643 
(1981), in which the Commission ruled that an inspector does not have to 

give a Miranda warning to personnel he interviews when he is conducting an 

investigation because such warnings apply only when the person being interviewed has been taken into custody (3 FMSHRC at 309). Since the Commission's 

Propst decision supports MSHA's contentions in this proceeding, rather than 

USS's arguments, I spent several days in the law library trying to find some 

cases which support USS's position and I discovered that I couldn't find any 

cases to support USS's arguments. Likewise, MSHA's brief (pp. 8-9) failed 

to cite a single case in support of its legal argument that USS violated the 

Act in refusing to allow the inspectors to interview Roivanen unless an 

attorney was present, but I found several cases which support MSHA's position. 

USS's brief (p. 9) refers to Roivanen's "right to experienced counsel" 

(Br. p. 11). A person's right to counsel is based on the Sixth Amendment to 

the Constitution which provides, in pertinent part, "In all criminal prosecutions, the accused· shall * * * have the Assistance of Counsel for his 

defense." USS's brief (p. 9) strives to bring the aspect of a criminal 

prosecution into play in this proceeding by observing that it was possible 

that the inspectors' investigation of the truck's rolling over would result 

in the inspectors' writing a citation pursuant to section 104(d), or the unwarrantable failure provisions of the Act. USS argues that since Starkovich 

was aware of the fact that MSHA routinely audits unwarrantable-failure citations and orders for the purpose of determining whether criminal charges 

should be made, that the inspectors' desire to interview Roivanen carried 

with it a sufficient threat of criminal prosecution to require that Roivanen 

be furnished with an attorney to be provided by USS. 

The Supreme Court held In Re Graban, 

State Fire Marshall could investigate the 

witnesses' attorneys from being present. 

352 U.S. 330 (1957), that an Ohio 

cause of a fire and prohibit the 

The Court stated (at p. 332): 

The fact that appellants were under a legal duty to speak 

and that their testimony might provide a basis for criminal 

charges against them does not mean that they had a constitutional right to the assistance of their counsel. 

The Court went on to say (p. 333): 

Obviously in these situations evfdence obtained may possibly lay 

a witness open to criminal charges. When such charges are made 

in a criminal proceeding, he then inay demand the presence of 

counsel for his defense. Until then his protection is the 

privilege against self-incrimination. * * * The mere fact that 

suspicion may be entertained of'l:iuch a witness' as appellants 

believed exists here, though without allegation of facts to support such a belief, does not bat~the taking of testimony in a 

private investigatory proceeding. 

Of course, the Administrative Pr~cedure Act, 5 U.S.C. § 1005, provides 

that "[a]ny person compelled to appe~r in person before any agency or representative thereof shall be accorded di~ .. right to be accompanied, 
represented, and advised by counsel." The Supreme Court's holding in the 

Groban case is still applicable except when a formal trial-type atmosphere 

is provided for by an agency's rules. In Hannah v. Larche, 363 U.S. 420 

(1960), the Supreme Court held that the Civil Rights Commission, in compelling persons to appear before it for investigations, should permit such 

persons to have the advice of counsel, but the Court agreed with the Commission that such counsel, as a matter of right, could not participate in the 

investigations. The Court said that investigations should not be transformed 

into trial-like proceedings which would result in the injection of collateral 

issues and reduce the investigations to a shambles and stifle the agency's 

fact-finding efforts. In United States v. Mandujano, 425 U.S. 564 (1976), 

the Supreme Court held that a witness in a grand jury proceeding does not 

have to be given the equivalent of Miranda warnings and that he may not 

testify falsely as a means to keep from incriminating himself. A witness 

may refuse to answer under the Fifth Amendment, but if the prosecutor believes that the witness' testimony is vital to assist him in bringing action 

against others, the prosecutor may obtain his testimony by offering him 

immunity against prosecution. In his concurring opinion in the Mandujano 

case, Justice Brennan noted at page 603 that it was ironic that the Groban 

and Hannah cases had been used for denial of assistance of counsel in administrative proceedings, but the Court specifically reaffirmed its holdings in the Hannah case in 1969 in Jenkins v. McKeithen, 395 U.S. 411, although it ruled in the Jenkins case that the due process requirements of 

the Fourteenth Amendment apply in proceedings before a state commission if 

the commission's function is solely that of exposing individuals to violations of criminal laws. 

The cases discussed above deal with situations in which counsel were 

actually present, but their participation was limited either by their being 

excluded from the place of interrogation or their freedom to object to 

questions and make oral arguments was curtailed. The Supreme Court recognized in the Groban case that in purely fact-finding situations, counsel 

could be excluded entirely from the place of questioning, whereas in the 

Hannah case, the attorneys'. right to cross-examine, object, and argue was 

curtailed. 

In this proceeding, USS claims that it wanted to provide Roivanen with 

an attorney who was well versed in the meaning of the Act so that he would 

have known that the reason Roivanen needed an attorney was to assist 

Roivanen in answering questions which might lead to his being charged with 

a criminal violation if the inspectors should happen to write an unwarrantable-failure citation or order. USS's brief (p. 10) argues that the inspectors' writing of the citation forced USS to abate it the nex.t day with 

the result that USS was forced to have Roivanen represented at the interview by one of its attorneys who was not at all versed in the intricacies 

of the Act. Therefore, USS's brief (p. 11) contends that the inspectors' 

insistence upon speed deprived Roivanen of one of his most fundamental 

rights, "the right to experienced counsel". 

Purely apart from the factual question of whether the inspectors forced 

USS to act so quickly that only an inexperienced attorney could be made 

645 
available, the broad legal implications of its argument are not well established. The "right" to an attorney under the Sixth Amendment depends upon 

an interrogation coming within the ambit of the Supreme Court's rulings in 

Miranda v. Arizona, 384 U.S. 436 (1966). The absolute right to an attorney 

first comes into play only when a person suspected of a crine is actually 

taken into custody and is cut off from the outside world. At such times, he 

must be advised that he has a right to be represented by counsel during any 

interrogation and, since the right to an attorney under the Sixth Amendment 

does not depend upon a person's financial ability to pay, the person in 

custody must be advised not only that he has a right to counsel, but that if 

he cannot afford to hire competent counsel, an attorney will be appointed 

for him (384 U.S. at 472-473). 

In this proceeding, Roivanen was to be interviewed at USS's mine and 

his freedom was at no time threatened in any way. He had not been accused 

of any crime. Therefore, his right to counsel under the Sixth Amendment was 

not brought into play. Under the Fifth Amendment, a person is entitled to 

refuse to answer questions which might tend to incriminate him. Roivanen 

had the right to claim the privilege against self-incrimination, but Roivanen 

did not claim that privilege in this proceeding. Instead, USS notified 

Roivanen that he should talk to the inspectors only if an attorney provided 

by USS was present. At no time does the transcript reflect that USS advised 

him of his right to claim the privilege against self-incrimination. As 

indicated above, Roivanen could be asked to answer questions, subject to his 

right against self-incrimination, without his actually being provided with 

counsel during the interrogation unless the proceeding at which the questions are to be asked are the equivalent of a hearing so as to bring into 

play the Administrative Procedure Act's provision that a person compelled 

to appear before an agency "shall be accorded the right to be accompanied, 

represented, and advised by counsel." 

None of the trial-type procedures involved in actual hearings were 

involved in this proceeding. Roivanen had not been subpoenaed or even requested to appear before any agency. He was simply going to be interviewed 

by inspectors at his regular place of work in familiar surroundings. 

Starkovich said that he believed the inspectors were actually conducting a 

special investigation under section 103(g)(l) of the Act (Tr. 241). That 

was a fair evaluation of the type of investigation the inspectors were conducting because the investigation was being conducted solely because MSHA 

had received a complaint under section 103(g)(l) asking that an investigation be made of the incident involving the rollover of a truck on mine 

property. Although Citation No. 293739 refers to the claims that USS interfered and impeded an "accident investigation", it is a fact that_ the accident was being investigated solely because MSHA had received a request 

under section 103(g)(l) that the accident be investigated. 

Regardless of whether the inspector was conducting an accident investigation or a "special inspection" under section 103(g)(l), the inspectors 

were certainly not involved in an accusatory, trial-type proceeding. MSHA 

does not have rules published in the Code of Federal Regulations to govern 

646 
investigations which may be conducted under section 103(b) of ·the Act, but 

MSHA apparently still follows a Manual for Investigation of Coal Mining 

Accidents prepared by MESA when that organization was a part of the U. S. 

Department of the Interior. That manual may be purchased from the Superintendent of Documents as Stock No. 024-019-00022-5. With respect to accident investigations, the manual presumes that a preliminary gathering of 

information would precede a formal hearing at which witnesses would be 

asked to testify with a court reporter. As to such preliminary gathering 

of facts, the manual states on pages 7 and 8: 

3. Statements of Persons--Statements shall be obtained 

from all persons having information relevant to the investigation. As determined by the team leader, such statements shall 

be taken either (a) verbatim--if recorders are used, the person giving the statement shall be so informed and his consent 

shall be obtained, (b) by a court reporter, or (c) informally 

with a summary thereof. Statements shall be taken from each 

person separately to obtain his personal recollection of the 

relevant events and circumstances. If State officials are 

simultaneously conducting an investigation, they may be afforded 

an opportunity to take testimony from persons jointly with MESA; 

however, should a person desire to give testimony to MESA alone, 

he shall be given the right to do so. 

The manual explains that if an actual public hearing is deemed necessary 

in connection with an accident investigation, notice of the hearing will b~ 

given in the Federal Register. For that type of actual hearing, the manual 

specifies on page 8: 

A. All witnesses, whether subpoenaed or appearing voluntarily, shall be sworn and advised of their legal rights with 

regard to the giving of testimony. 

* * * 

E. When circumstances warrant, further procedural rules 

applicable to the hearing may be issued prior to and/or during 

the hearing. 

Inasmuch as the manual provides for advising each witness of his or 

her legal rights, it is assumed that, as in the Hannah case, supra, each 

witness would be permitted to have the advice of counsel, but since the 

hearing is solely a fact-finding investigation, the attorneys would not be 

permitted to turn an investigation into a trial-type proceeding where 

they would be permitted to object to questions, call witnesses of their 

own choosing, or argue the merits of any legal or factual issue. Thus, 

even in an accident investigation involving a hearing, a witness is not 

entitled to the right to counsel under the Sixth Amendment in the sense 

that such right is explained in the Supreme Court's Miranda decision, 

supra. 

647 
The interviews which the inspectors conducted with respect to the 

truck's rollover were taped with the witnesses' consent, bμt if the witness 

objected to having his interview taped, the interview was conducted without 

use of any recording equipment (Tr. 36-37). It is certain, therefore, that 

the type of interview, as to which USS insisted upon having an attorney 

present, was an informal investigation which did not carry with it the right 

of counsel under the Sixth Amendment. 

The Privilege Against Self-Incrimination 

The Fifth Amendment to the Constitution provides, in pertinent part, 

that "[n]o person * * * shall be compelled in any criminal case to be a witness against himself". As far back as 1892, the Supreme Court held in 

Counselman v. Hitchcock, 142 U.S. 547, that a person testifying before a 

grand,jury is entitled to claim the privilege against self-incrimination 

and that privilege has been extended to apply to any kind of proceeding, 

regardless of whether it is criminal or civil in nature, or involves an administrative or court proceeding. The privilege protects any disclosures 

which a witness has reason to believe could be used against him in a criminal 

prosecution (In re Gault, 387 U.S. 1 at 49 (1967); Murphy v. Waterfront 

Connni~ion, 378 U.S. 52 at 94 (1964)). 

Therefore, if Starkovich had explained to the inspectors that Roivanen 

had the right to refuse to answer any question which might tend to incriminate him, the inspectors could not have objected to Roivanen's asserting 

that privilege in reply to any question that might have been ask~d him. 

Starkovich, however, did not take that approach. Instead, he forbade the 

inspectors to talk to Roivanen unless an attorney of USS's own choosing 

were present. Moreover, Roivanen was not asked if he wanted an attorney 

present when he talked to the inspectors. Roivanen was simply told that 

USS would rather that he have an attorney provided by USS present when he 

talked to the inspectors. Roivanen's own testimony shows how he reacted to 

USS's order that he not talk to the inspectors unless an attorney provided 

by USS was present (Tr. 334): 

Q. Okay. Now, when did you first learn that the Mine 

Safety and Health Administration was interested in this accident? 

A. I believe, ah, probably Bob Wittbrodt [his innnediate 

supervisor], ah, called me. This was several -- several days. 

I'm not sure of the date. And, ah, told me that, ah, the 

Company would prefer that I use counsel concerning this 856 

truck accident. And, ah, that really got my head spinning, you 

know, wondering what really is going on now because I hadn't 

been, um, really involved other than the -- I believe the --

the accident investigation. And, ah, I knew nothing of the fact, 

that I hadn't really done anything wrong. 

* * * 

648 
Q. Did Mr. Wittbrodt tell you that you should or should 

not talk? Did he tell you, "Don't talk to anyone from the Mine 

Safety and Health Administration?" 

A. No. He just called me, and it was a short, short conversation. He just said, "The Company would prefer that you 

had counsel regarding the 856 truck." And, ah, I said, "Okay". 

Despite the fact that Roivanen says he was not advised to refuse to 

talk to the inspectors at all, Starkovich testified as follows (Tr. 265-267): 

Q. You're saying that on -- on February 9th, you told 

the inspector that he could go talk to the foreman? 

A. On when? No. I said on February 11th during the conversation. We -- we were talking back and forth, and Jim 

[Inspector Bagley] was stating his position, and I was stating 

our -- my position, our position. 

Q. Okay. 

A. And during this conversation, I made a comment to him, 

"Well, if you want to go up there and look at him for five hours, 

you can, but he's not -- he won't say anything to you." 

* * * 

Q. So you're you're denying that you made a statement that "Even if we did let you go up," your're denying --

A. I never said, "If we let you go up." I said, "If you 

went up there, you'd -- he'd just look at you for five hours 

anyway, and he wouldn't say anything." 

On the other hand, Inspector Wasley testified as follows (365; 370): 

Q. Did he [Starkovich] make any reference to -- to 

your being able to go down and talk with him [Roivanen] at 

all? 

A. He did say that even if we were allowed to talk to 

the foreman [Roivanen], he would not answer for us. 

Q. Do you specifically remember him saying it in this 

way? 

A. Well, because I considered it a denial both ways. 

* * * 

Q. Okay. Now, during the meeting of February 11th, 1981, 

when you were talking to Mr. Starkovich 

649 
A. Yes. 

Q. -- do you remember him making any comment about talking to Mr. Roivanen for five hours? 

A. For five hours? 

Q. Yes. 

A. Well, he said that even if we were allowed to talk to 

Cedric [Roivanen], that he wouldn't answer. Regardless of what 

the time was, five hours or whatever, he would not answer any 

of our questions. That's what Steve [Starkovich] said. 

Q. Well, do you remember Mr. Starkovich saying that you 

could look at -- that even if you looked at Mr. Roivanen for 

five hours, he wouldn't answer your questions? 

A. That was a -- yeah. That part of the statement was 

there, yes. 

The importance of the statement by Starkovich that Roivanen would not 

talk to the inspectors if they tried to interview him out of the presence 

of an attorney provided by USS is that the only constitutional right which 

Roivanen had, when interviewed by the inspectors, was the right to refuse 

to answer questions which he felt might incriminate him, but when the inspectors insisted on asking questions before an attorney was provided, 

Starkovich prevented them from talking to Roivanen because Roivanen had 

been given instructions to say nothing unless an attorney provided by USS 

was present. 

After USS provided an attorney on February 13, 1981, Inspector Bagley 

was permitted to interview Roivanen. The testimony does not show, however, 

that the attorney ever cautioned Roivanen about his right to refuse to 

answer questions which might incriminate him. The inspector was carefully 

questioned about what kind of warnings the inspector gave Roivanen before 

the interview started (Tr. 86-87): 

Q. Did you give Mr. Roivanen any Miranda warnings at 

the beginning of that interview? 

A. Miranda? Oh. Is that where you warn somebody of 

their rights. I, um -- as far as I know, the inspectors were 

not required to give Miranda warnings. However, at the request of the -- the U. S. Steel attorney that was present --

his name was Ron Fischer -- um, he asked at the beginning of 

our interview if I would inform Mr. Roivanen of the possible, 

you know, consequences of the interview, of the accident investigation, that would be -- there would be a possibility of 

citations being issued, orders, could be unwarrantable, could 

650 
be willful. I just tried to discuss with Mr. Roivanen, um, 

what he was doing there, what could come of it. 

Q. Okay. Was Mr. Roivanen surprised at what could 

come of it? 

A. No. 

Q. Did Mr. Fischer indicate to you that he understood 

the provisions of the Act? 

A. No. He never, ah -- he never interjected himself 

hardly at all. 

There is nothing in the record which indicates that Roivanen was ever 

actually advised that he had the right to refuse to answer any questions 

which might result in providing information which might tend to incriminate 

him. USS's brief (pp. 9-11) claims that the attorney who represented 

Roivanen at the interview was not experienced in interpreting the Act and 

that USS was forced to send an inexperienced attorney to represent Roivanen 

because the inspector had issued a citation which USS was compelled to 

abate by sending an inexperie~ced attorney instead of the experienced attorney which USS would have preferred to send. 

USS had been advised on February 9 that the inspectors wanted to interview Roivanen. The citation was not issued until February 12. If USS 

had· acted promptly, it could have sent an experienced attorney to the 

Minntac Mine by February 13, the day on which the interview was actually 

conducted. Although Starkovich claims that he thought he had the date of 

February 17 established as the date on which Roivanen, Boucher, and Woullet 

would be interviewed, the two inspectors who were present when USS insisted 

upon having an attorney present for the interview both testified unequivocally that no specific dates were ever mentioned (Tr. 80; 84; 365; 374). 

I think the inspectors' testimony is more credible than Starkovich's on 

the question of a date because Starkovich at no time ever claimed that he 

reminded the inspectors when the citation was served that he understood he 

had until February 17 to provide an attorney. I do not believe that 

Starkovich, who was very forceful in maintaining his position on all other 

matters, would have been timid about insisting to the inspectors that he 

understood he had until February 17 to provide an attorney at the time they 

handed him Citation No, 293739. In any event, there is nothing in the 

record to show that Starkovich even asked the inspectors to give him time 

enough to get an attorney with more experience in interpreting the Act than 

the one who was. provided. 

Assuming, arguendo, that USS did rely on a less experienced attorney 

than it would have preferred, it is clear that all the attorney had to do 

was to advise Roivanen that the answer to a given question might tend to 

incriminate him. No extensive knowledge of the Act would have been required for that kind of representation, particularly if the allegedly 

651 
inexperienced attorney had been briefed by USS's experienced attorneys 

before he appeared at the interview. Moreover, the courts have held that, 

even when the right to an attorney within the purview of the Sixth Amendment exists, which was not true in this case, the Sixth Amendment does not 

require a defendant to be represented by an attorney who is perfect, or 

errorless (Cardarella v. United States, 375 F.2d 222, 232 (8th Cir. 1967); 

Sherrill v. Wyrick, 524 F.2d 186 (8th Cir. 1975), cert. den., 424 U.S. 923 

(1976); MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960)). 

Additionally, the claim in USS's brief to the effect that the inspector's 

writing of Citation No. 293739 prevented USS from providing Roivanen with 

adequate counsel is not supported by the record, as the following testimony 

of Starkovich shows (Tr. 261): 

Q. Okay. What I asked you was is there any reason in 

your mind why any licensed attorney could not adequately represent the rights of the foreman who was to be interviewed by 

the MSHA inspector? 

A. Well, the answer to that question, we've got lawyers, 

as Mr. Fischer was hired by the corporation to work for the 

corporation. So why should we go and hire a lawyer? 

Q. Right. But in other words, you're saying that you 

feel you felt that Mr. Fischer was adequately qualified to 

perform that function, is that not right? 

A. To sit in the interview? 

Q. Yes. 

A. Oh, definitely. 

As has been shown above, the only justifiable reason that USS had for 

insisting that Roivanen be represented by counsel at the interview would 

have been for the purpose of having an attorney present to advise him when 

he should refuse to answer a given question on the ground that the answer 

might tend to incriminate him. As has also been shown above, Roivanen did 

not ask to be represented by counsel and it does not appear that he was ever 

advised that he had a right to refuse to answer any particular question. 

One reason that USS may have for failing to mention Roivanen's right against 

self-incrimination may be that it is a personal right which can only be 

raised by the person who wishes to use it. A corporation cannot plead the 

privilege against self-incrimination (Hale v. Henkel, 201 U.S.·41, 74 (1906); 

Baltimore & Ohio R. Co. v. I. C. C., 221 U.S. 612, 622 (1911); and Wilson v. 

United States, 221 U.S. 361 (1911)). In the Wilson case, the court explained 

that an individual has no duty to the state or his neighbors to divulge his 

business as he receives nothing from the state, whereas a corporation is a 

creature of the state which is incorporated for the benefit of the public. 

Since a corporation receives special privileges and franchises, its officers 

652 
may not refuse to produce the corporation's books and records in response 

to a subpoena even if such production results in the officers' being indicted 

along with the corporation. 

For the foregoing reason, there is considerable merit to the argument 

in MSHA's brief (pp. 8-9) to the effect that only Roivanen was entitled to 

ask that he be represented at the interview by counsel. 

Conflict of Interest 

Since it has been demonstrated above that Roivanen did not have a 

Sixth Amendment right to be represented by counsel at the interview and that 

the only constitutional right he had at the interview was his right against 

self-incrimination, there is also considerable merit to the argument in 

MSHA's brief (pp. 8-9) to the effect that USS could not properly insist 

upon Roivanen's being represented at the interview by counsel employed by 

USS to do its own corporate work. If a person does have a Sixth Amendment 

right to counsel, he must be given a fair opportunity to secure counsel of 

his own choice (Chandler v. Fretag, 348 U.S. 3, 9-10 (1954); Powell v. 

State of Alabama, 287 U.S. 45, 71 (1932)). 

Wholly apart from the question of whether USS had the right to provide 

Roivanen with counsel, is the question of whether Fischer was representing 

Roivanen at the interview or his real client, USS. In Castillo v. Estelle, 

504 F.2d 1243 (5th Cir. 1974), the court held that a person who was entitled to counsel under the Sixth Amendment had been denied due process 

because the defense attorney also represented the principal witness for the 

prosecution. The court stated that (504 F.2d at 1245): 

* * * In these circumstances, counsel is placed in the equivocal 

position of having to cross-examine his own client as an adverse 

witness. His zeal in defense of his client the accused is thus 

counterpoised against solicitude for his client the witness. 

The risk of such ambivalence is something that no attorney should 

countenance, much less create. We hold that the situation presented by the facts of this case is so inherently conducive to 

divided loyalties as to amount to a denial of the right to ef fective representation essential to a fair trial. 

In MacKenna v. Ellis, 280 F.2d 592, 595 (5th Cir. 1960), the court held that 

an accused person is entitled to have the "wholehearted assistance of counsel 

and to the undivided loyalty of counsel." 

In United States ex rel. Hart v. Davenport, 478 F.2d 203 (3d Cir. 1973), 

the court reversed Hart's conviction of gambling charges because a single 

attorney, retained by his employers, had represented Hart, his employers, 

and three other codefendants at the trial. The attorney did not differentiate Hart's position from that of the other codefendants. The court explained (478 F.2d at 209-210): 

653 
The legal standard to be applied to a claicr of prejudice 

from joint representation is clear enough. The right to counsel 

guaranteed by the sixth and fourteenth amendments contemplates 

the service of an attorney devoted solely to the interests of 

his client. T~e right to such untrammelled and unimpaired 

assistance applies both prior to trial in considering how to 

plead, * * * and during trial * * *· Recognizing that the 

right to such assistance of counsel may be waived, * * * we 

refused to find any such waiver from a silent record. * * * we 

have rejected the approach that before relief will be considered 

the defendant must show some specific instance of prejudice. 

* * * Instead, we have held that upon a showing of a possible 

conflict of interest or prejudice, however remote, we still regard joint representation as constitutionally defective. 

Walker v. United States, 422 F.2d 374 (3d Cir.), cert. den., 

-399 U.S. 915, 90 S.Ct. Z219 (1970). ***The Walker test of 

possible conflict of interest or prejudice, however remote, 

must be applied, moreover, in light of the moral competency 

standard of adequacy of representation by counsel adopted in 

this circuit. * * * Normal competency includes, we think, such 

adherence to ethical standards with respect to avoidance of conflicting interests as is generally expected from the bar. 

[Citations to cases omitted.] 

In this proceeding, USS insisted on Roivanen's being represented by counsel 

on the ground that the inspectors might write unwarrantable failure 'citations 

or orders which, in turn, might be reviewed by MSHA for possible criminal 

violations. That which might have resulted in commencement of a criminal 

action against Roivanen would not necessarily result in a criminal action 

against USS. It appears that if the test used by the court in the Davenport 

case, supra, namely, a showing of possible conflict of interest, however 

remote, were to be applied to Fischer's representation of Roivanen at the 

interview, the representation by Fischer would have to be held to have been 

defective because of the possible conflict of interest. The record shows 

that Roivanen was not sure that USS's attorney was there solely to protect 

his interests (Tr. 345-346). 

The Right to a Miranda Warning 

USS's brief (p. 11) states as follows: 

* * * According to MSHA and its Review Commission, an MSHA inspector does not have to give a foreman Miranda warnings or even 

mention the possibility that criminal sanctions may be invoked 

before interviewing an employee. Everett Propst and Robert Semple, 

2 MSHRC 1156 (1981). Thus in MSHA's view, a car thief apprehended 

in the streets is entitled to more information than a mine foreman. 

As I have already observed, supra, the Commission held in the Propst 

case that MSHA inspectors do not have to give Miranda warnings because the 

654 
persons being interviewed are not in custody and their freedom is not in 

any way threatened when they are interviewed by MSHA inspectors. There 

are hundreds of cases holding that the police do not have to give Miranda 

warnings unless they have narrowed their search for a suspect to a person 

to such an extent that they have placed the suspect under arrest so that 

his freedom to go and come as he pleases is restricted. USS's claim that 

a car thief apprehended in the streets is entitled to more information than 

a mine foreman,, is incorrect. In Lowe v. United States, 407 F. 2d 1391 (9th 

Cir. 1969), a car thief was apprehended by the police and was not given any 

Miranda warnings before the police asked him for his driver's license and 

vehicle registration card. When he was unable to provide those articles, 

he was further asked about his employer and his destination. When he later 

complained that he had not been given Miranda warnings, his claims were rejected. The court stated, in part, as follows (407 F.2d at 1397): 

It follows that the time when the officer's intent to arrest -------- is formed has no bearing on the question of whether or not there 

exists "in-custody" questioning. Whether a person is in custody 

should not be determined by what the officer or the person being 

questioned thinks; there should be an objective standard. Although the officer may have an intent to make an arrest, either 

formed prior to, or during the questioning, this is not a factor 

in determining whether there is present "in-custody" questioning. 

It is the officer's statements and acts, the surrounding circumstances, gauged by a "reasonable man" test, which are determinative. [Emphasis is part of court's opinion.] 

In United States v. Marzett, 526 F.2d 277 (5th Cir. 1976), the court 

held that a Miranda warning did not have to be given to a suspect, not in 

custody, who answered questions of the police concerning the location of a 

shotgun. The court held in United States v. Evans, 438 F.2d 162 (D.C. Cir. 

1979), cert. den., 402 U.S. 1010, that a Miranda warning did not have to be 

given in a situation in which a policeman apprehended a thief who had been 

recognized on the street on the basis of a police radio broadcast. The 

suspect was taken back to the place where a burglary victim had recognized 

him for the purpose of determining whether the policeman had apprehended 

the proper person. 

In Birnbaum v. United States, 356 F.2d 856 (8th Cir. 1966), the court 

held that a defendant had no constitutional right to counsel when he was 

interrogated by an FBI agent prior to the time when any charge had been 

lodged against him. In United States v. Robson, 477 F.2d 13 (9th Cir. 

1973), the court held that where a taxpayer was not deprived of his freedom 

in any way, an agent of the Internal Revenue Service was under no duty to 

inform him of his constitutional rights, or advise the taxpayer of the fact 

that the investigation could have potential criminal consequences, or tell 

the taxpayer of the fact that the agent had an informant's tip suggesting 

possible tax evasion. It was further held in the Robson case that the taxpayer's consent to search of his records for audit by the agent could 

reasonably be accepted as a waiver of warrant even though the record did 

655 
not disclose ~hat the taxpayer was aware of the precise nature of his 

Fourth Amendment rights. In United States v. Irion, 482 F.2d 1240 (9th 

Cir. 1973), cert. den., 414 U.S. 1026 (1973), the court held that questioning of a defendant in his motel room by customs officers who learned that 

defendant had been on a sailboat which landed without clearing customs did 

not constitute "in custody" interrogation requiring Miranda warnings to be 

given before such statements may be used at trial. In United States v. 

Hickman, 523 F.2d 323 (10th Cir. 1975), cert. den., 96 S.Ct. 778 (1976), 

the court held that the initial stopping of a towing truck and boat containing contraband did not constitute a sufficient impairment of defendants' 

freedom by customs agents to require Miranda warnings. 

A Violation of Section 103(a) Occurred 

In this proceeding USS is charged by MSHA with a violation of section 

103 (a) ]_/ in Citation No. 293739 because USS' s super.visor of Minn tac operations refused to allow the inspectors to interview a foreman unless an 

attorney provided by USS was present. The citation claims that such restriction "* * * constitutes interference with and impedence of three authorized MSHA representatives during the course of an MSHA accident investigation." I believe that I have already cited enough legal support to show 

that USS had no right to insist that a foreman could not be interviewed until USS provided one of its attorneys to be present during the interview. 

There are many cases which specifically hold that persons are not entitled 

to be represented by counsel in circumstances almost identical to those 

which occurred in this proceeding. 

The case which is most analogous to the situation involved in this 

proceeding is F. J. Buckner Corp. v. N.L.R.B., 401 F.2d 910 (9th Cir. 1969), 

cert. den., 393 U.S. 1084. In the Buckner case, Buckner was interviewed by 

an attorney who worked for NLRB. Buckner's responses were taken down in 

longhand and later were typed and were signed by Buckner. The trial examiner, 

or administrative law judge, admitted Buckner's "affidavit" in evidence and 

3/ Citation No. 293739 (Exh. M-4), as originally issued, alleged a violation of section 103(a)(l), but the inspector issued a subsequent action sheet. 

on February 27~ 1981, in which he stated that the citation was being modified 

to allege a violation of section 103(a) instead of a violation of section 

103(a)(l). Although the modification of Citation No. 293739 in this proceeding (Exh. M-4, p. 3) does not contain words modifying the violation from 

section 103(a)(l) to section 103(a), the proposal for a civil penalty filed 

in Docket No. i:LAKE 81-168-M seeks a penalty for the violation of section 

103(a) alleged in Citation No. 293739 and the proposal is accompanied by a 

modification dated February 27, 1981, showing that the inspector modified 

Citation No. 293739 long before the hearing was held in this proceeding. 

Therefore, respondent was not prejudiced by the fact that the exhibits introduced at the hearing in this proceeding failed to include the inspector's 

modification showing that the inspector had modified Citation No. 293739 to 

allege a violation of section 103(a) instead of a violation of section 

103(a)(l). 

656 
considered its contents in finding Buckner guilty of unfair labor practices. 

As to the use of Buckner's statements obtained by NLRB's attorney, the 

court stated (401 F.2d at 914): 

In an effort to secure a person's privilege against selfincrimination, prosecutors are required to demonstrate that 

certain procedural safeguards were used before the statements 

of a defendant may be used against him. Critical among those 

procedural safeguards is a warning that the defendant has the 

right to an attorney. A defendant has this right at every stage 

of a proceeding against him [Powell v. State of Alabama, 287 U.S. 

45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)], and it does not depend 

upon a request [Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 

8 L.Ed.2d 70 (1962); People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 

169, 398 P.2d 361 (1965)]. 

However, the point at which this warning must be given has 

. been the subject of much controversy. In Escobedo v. State of 

Illinois, 378 U.S. 478 at 490, 84 S.Ct. 1758, 12 L.Ed.2d 977 

(1964), it was held that this point is reached when an investigation is no longer a general inquiry into an unsolved crime but 

has begun to focus on a particular suspect. In Miranda v. State 

of Arizona, 384 U.S. 436 at 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 

(1966), it was held that this point was reached when law enforcement officers initiated questioning after a person had been taken 

into custody or otherwise deprived of his freedom of action in 

any significant way. 

Petitioner herein argues that since Buckner could at some 

time in the future become the subject of a criminal proceeding 

upon matters involved in the instant case, statements made in 

the absence of a Miranda warning should have been excluded from 

consideration by the Trial Examiner. An extension of the Miranda 

doctrine to situations where there is no criminal charge under 

investigation and where a statement is given by a person who has 

been in no way deprived of his freedom would be wholly unwarranted. 

It cannot successfully be argued that the inspectors had no right to 

investigate the rollover of the truck. It is not necessary to base the 

inspectors' investigation on the question already extensively considered 

in this decision, that is, whether the truck's rollover was a reportable 

accident under section 50.2(h) requiring an immediate decision by MSHA as 

to whether an investigation should be undertaken within 24 hours. The 

reason that it is not necessary to consider the question of whether an accident reportable under section 50.2(h) or section 50.10 existed is that the 

inspectors had received a request for an investigation to be made under 

section 103(g)(l) of the Act. That section provides that"*** upon receipt of such notification, a special inspection shall be made as soon as 

possible to determine if such violation or danger exists in accordance with 

the provisions of this title." Starkovich said that he understood that the 

657 
inspectors had come to the Minntac operation to perform a "103(g) (1) 

special investigation (Tr. 241). Therefore, the inspectors could have 

based their investigation of the truck's rollover on the authorization 

contained in section 103(a) as that section gives them authority to determine "whether there is compliance with the mandatory health or safety 

standards or with any citation, order, or decision issued under this title 

or other require:ments of this Act." They also have the authority under 

section 103(a) to inspect mines to assist the Secretary in developing 

"guidelines for additional inspections of mines based on criteria including, 

but not limited to, the hazards found in mines subject to this Act, and 

[the Secretary's] experience under this Act and other health and safety 

laws." In performing such inspections, the inspectors are given "a right 

of entry to, upon, or through any coal or other mine." 

MSHA received on February 5, 1981, a request that the truck's rollover 

be investigated. The request was given to Inspector Bagley and he went to 

the Minntac Mine on Monday, February 9, 1981, to investigate the accident. 

Starkovich allowed the inspector to talk to the driver of the truck, but 

Starkovich wouldn't let the inspector talk to the driver's foreman, 

Roivanen, until an attorney could be provided. The inspectors asked to 

talk to Roivanen three different times on February 9, but all requests were 

denied. The delays which the inspectors encountered are described in Finding Nos. 11 through 14, supra, and need not be repeated here. There can be 

no question but that USS impeded the inspectors' investigation, which section 103(g) (1) states should be performed "as soon as possible", by simply 

asserting that Roivanen had a right to counsel. 

A few more holdings by the courts in circumstances almost identical 

to the facts in this case should be cited to show beyond any doubt that USS 

did not have a right to insist that Roivanen be afforded counsel before he 

could be interviewed by MSHA inspectors. In Ferguson v. Gathright, 485 

F.2d 504 (4th Cir. 1973), cert. den., 415 U.S. 933, the court affirmed a 

denial of a writ of habeas corpus involving a person who was convicted of 

driving a motor vehicle after his driving license had been revoked under 

the Virginia Habitual Offender Act. His claim was based on a contention 

that his rights were violated at the license revocation hearing by the fact 

that he was not provided with assistance of counsel. The court stated (485 

F.2d at 505-506): 

A right to counsel must find its constitutional basis in 

either the commands of the Sixth Amendment or the general guarantee of fundamental due process granted by the Fourteenth 

Amendment. The petitioner apparently rests his claim primarily 

on the Sixth Amendment. In pressing such claim, he is confronted at the outset with the fact that the right to counsel 

given by the Sixth Amendment extends only to criminal or quasicriminal cases, and proceedings for the revocation of a driver's 

license under the Virginia Habitual Offender Act have been 

authoritatively held to be a civil and not a criminal action. 

* * * [Footnotes omitted.] 

658 
In Kirby v. Illinois, 406 U.S. 682 (1972), the Supreme Court held that 

a defendant was not entitled to counsel before he was identified by a victim in a police station. The circumstances were that the defendant had 

been picked up and was taken to the police station after he had produced 

three travelers' checks and a Social Security card bearing Willie Shard's 

name. Shard was brought to the police station to see if he could identify 

the suspect. Shard recognized the defendant as soon as he walked into the 

police station and saw the defendant sitting at a table. The Court said 

that the question raised was not the defendant's right against selfincrimination, but his right to counsel. The Court stated (406 U.S. at 

688): 

In a line of constitutional cases in this Court stemming 

back to the Court's landmark opinion in Powell v. Alabama, 287 

U.S. 45 (1932), it has been firmly established that a person's 

Sixth and Fourteenth Amendment right to counsel attaches only 

at or after the time that adversary judicial proceedings have 

been initiated against him. * * * 

By way of summary, the cases hereinbefore cited show that when the inspectors sought to interview Roivanen on February 9, 1981, the only constitu .. 

tional right he had was his privilege against self-incrimination. That was 

a personal privilege which only Roivanen had a right to assert. It was 

improper for USS to refuse to permit the inspectors to talk to Roivanen 

until such time as USS could provide one of its corporate lawyers to be 

present at the interview because the corporate lawyer's primary client at 

the interview was USS, not Roivanen. Even if a lawyer were allowed to be 

present at the interview, he could only advise Roivanen as to his privilege 

against self-incrimination. The lawyer would not be entitled to object to 

questions or make legal arguments so as to turn the interview into a quasijudicial proceeding. Even if Roivanen had personally asked the inspectors 

if he could have an attorney present at the interview, the most that the 

inspectors would have had to allow would have been the opportunity to discuss questions with his attorney, if he suspected the answers would tend to 

incriminate him, but the inspectors could have required that Roivanen's 

attorney be excluded from the room where the interview was conducted, subject to Roivanen's right to leave the room to seek his attorney's advise 

about whether he should claim his privilege against self-incrimination as 

to any specific question. 

Since Roivanen was not in custody or charged with any kind of violation 

of law, he was not entitled to be given a Miranda warning and he was not 

entitled to a Sixth Amendment right to be represented by counsel at the 

interview. Therefore, when USS delayed the interview from Monday, February 9, 

1981, to Friday, February 13, 1981, it delayed and impeded an investigation 

which the inspectors, under the exhortations in section 103(g)(l) of the 

Act, were obligated to complete "as soon as possible." Such delay cons tituted a violation of section 103(a) as alleged in Citation No. 293739. For 

the foregoing reasons, I find that Citation No. 293739 dated February 9, 

1981, was validly issued and should be affirmed. 

659 
Assessment of a Penalty 

The proposal for a penalty filed in Docket No. LAKE 81-168-M seeks 

assessment of a civil penalty for the violation of section 103(a) alleged 

in Citation No. 293739. Inasmuch as I have found that the violation occurred, 

it is now necessary that a penalty be determined for the violation pursuant 

to the six criteria. I have already considered the six criteria in considerable detail with respect to the previous violation of section 103(a) under 

consideration in this proceeding. Specifically, I have already found that 

respondent is a large operator and that payment of penalties will not cause 

it to discontinue in business. 

History of Previous Violations 

I have already explained, in assessing a penalty for the prior violation of section 103(a), that the record in this proceeding is not complete 

enough to permit me to make a finding as to whether USS had violated section 

103(a) before January 22, 1981, when the first violation of that section 

involved in this proceeding was cited. 

The second violation of section 103(a) occurred in a citation written 

on February 9, 1981, which means that the second violation occurred about 

18 days after the first violation. The.record in this proceeding, therefore, 

shows that USS has a history of a previous violation of section 103(a) which 

occurred on January 22, 1981. I believe that the prior history of one violation should be considered because Starkovich was advised on February 9, 

1981, that an attorney should be obtained "as soon as possible" ('rr. 30). 

When the inspector returned to the mine on February 11, 1981, and was again 

denied permission to talk to Roivanen because an attorney was not present, 

he was warned that a citation would be issued for USS's refusal to allow 

him to talk to Roivanen (Tr. 43). Barmore claims that he would have allowed 

the inspector to go to the scene of the truck's rollover on January 22, 

1981, if the inspector had warned him that a citation would be written (Tr. 

202). Here, Starkovich was warned that a citation would be issued if an. 

attorney were not obtained promptly. 

Consequently, Starkovich should have profited from USS's previous 

experience when the prior violation of section 103(a) was cited and should 

have realized that his failure to obtain an attorney promptly would again 

result in the inspector's writing a citation for a violation of section 

103(a). It has been my practice to increase a penalty by a small amount 

when I find that the same section of the Act which is before me for assessment of a penalty has been violated on a single prior occasion. I believe 

that the criterion of history of previous violations should be used to increase a penalty when there is an indication of a large number of previous 

violations. If ·a penalty has been increased because of a very adverse 

history of previous violations and, thereafter, in a subsequent proceeding, 

the evidence shows that, over a recent time period, respondent has succeeded 

in reducing the number of violations in the recent period as compared with. 

the number which occurred in a prior period, the penalty should accordingly 

be decreased. 

660 
In this instance, since there is only a single prior violation of section 103(a), I believe that the penalty should be $50 more than it would 

have been if USS had not ever previously violated section 103(a). Additionally, as pointed out in considering respondent's history of previous violations in connection with the prior violation of section 103(a), I found that 

respondent should be assessed $10 under the criterion of respondent's history 

of previous violations because USS has an average of more than 50 previous 

violations per year. Therefore, the penalty for the second violation of 

section 103(a) should be a total of $60 under USS's history of previous 

violations. 

Negligence 

If the circumstances otherwise warranted it, the fact that the second 

violation of section 103(a) was del.iberate and intentional, could be used to 

find that the violation was associated with gross negligence because the advice of USS's legal staff in Pittsburgh had been sought at the time starkovich 

refused to allow the inspector to interview Roivanen until one of USS's 

attorneys could be present at the interview. On the other hand, USS appears 

to have been acting in good faith when it asserted that it was entitled to 

insist upon the presence of counsel at any interview which might involve the 

issuance of an unwarrantable-failure citation or order. 

A respondent ought to be able to claim an erroneous constitutional 

right, if that right is claimed in good faith, without exposing itself to a 

large civil penalty, provided that respondent, in asserting that right, does 

not expose its miners to any hazard. In Bituminous Coal O~rators' Association, Inc. v. Ray Marshall, 82 F.R.D. 350 (D.D.C. 1979), the court noted 

that it would be necessary for an operator to violate section 103(f) of the 

Act in order to obtain judicial review of the enforcement procedures which 

MSHA intended to use with respect to a miner's walk-around rights. The 

court also recognized that the operator would be subject to a civil penalty 

for violating the section just to test MSHA's enforcement procedures. The 

court then stated (82 F.R.D. at 354) that"*** it would seem improbable 

that stiff supplemental civil penalties would be imposed where a genuine 

interpretative question was raised as to section 103(f), a provision which 

normally is not absolutely vital to human health and safety." 

In this instance, the matter which the inspector wished to investigate 

involved a truck which had rolled over on January 22, 1981. The three miners 

riding in the truck received only minor injuries and were placed on restricted 

duty. When the inspectors went to investigate the incident on February 9, 

1981, one of the injured miners was back at work and the other two were 

attending a training class. The truck which had rolled over had been hauled 

from the scene of the accident to the vicinity of USS's repair stops and no 

repairs had been performed on it. Therefore, although USS's assertion that 

it wished to have an attorney present when Roivanen was interviewed did 

prevent the investigation from being completed "as soon as possible", the 

4-day delay in the inspectors' interview with Roivanen did not seriously 

impede the gathering of any important facts. 

For the reasons given above, I conclude that an amount of $10 is the 

most that should be assessed under the criterion of negligence for USS's 

661 
second violation of section 103(a). 

Gravity 

A considerable amount of what has been said above about the criterion 

of negligence is applicable to the criterion of gravity. If USS's refusal 

to let the inspectors interview Roivanen for a period of 4 days had occurred 

in connection with a serious violation which exposed miners to unsafe conditions while Starkovich and the inspectors argued the merits of USS's contention that Roivanen could not be interviewed unless one of USS's attorneys 

was present, it could then be said that the insistence on the presence of an 

attorney was a serious violation. 

MSHA's brief (pp. 9-10) agrees that the violation was not serious because 

Roivanen's statements at the interview provided the inspectors with little 

additional information which they had not already obtained from interviewing 

other USS employees. MSHA, however, states that the practice of operators' 

insisting upon having an attorney present before supervisory employees may 

be interviewed would constitute a serious threat to MSHA's abilities to carry 

out its functions if such tactics were to be used on a wide scale. There is 

considerable merit to MSHA's argument about a wide-spread use of the contention that no supervisory employee can be interviewed unless an attorney is 

present, but there seems to be no indication that USS is employing the tactic 

on a wide-spread basis--at least pending the decision in this proceeding 

where it appears that USS is testing its legal position. Moreover, since 

the issuance of a citation in this instance produced an attorney overnight, 

I assume that MSHA now knows how to deal with such contentions when and if 

operators insist on having attorneys present at future interviews by 

inspectors. 

In light of the considerations above, I find that the violation was 

nonserious and that a penalty of $10 should be assessed under the criterion 

of gravity. 

Good-Faith Effort To Achieve Rapid Compliance 

It has been my practice neither to increase nor decrease a penalty 

otherwise assessable under the other five criteria if I find in a given 

case that an operator has corrected a violation within the time provided 

by an inspector in his citation. That is also the procedure which is used 

when one applies the assessment formula set forth in section 100.3(f). 

In this instance, the inspector did not provide an abatement period in his 

citation until he arrived at USS's mine and had served the citation on 

Starkovich, supervisor of Minntac operations. After Starkovich received 

the citation, he immediately called USS's legal staff and asked when he 

could abate the alleged violation. Starkovich could have argued that an 

attorney would have to be sent from Pittsburgh and that one could not be 

there before Monday of the following week. Instead, he arranged for one 

of USS's attorneys near the mine site to be made available on the next day 

at 1 p.m. 

662 
It appears that USS acted with extraordinary speed in abating the violation once the inspector cited it. It is to USS's credit that once the 

inspector cited it for a violation in connection with its refusal to allow 

Roivanen to be interviewed unless an attorney was present, USS acted as 

promptly to abate the violation as could have been expected. Since the 

record shows that the inspector placed a compliance date on the citation of 

Friday, February 13, 1981, at 1 p.m., solely because Starkovich stated that 

an attorney would be provided by that time, it must be concluded that USS 

is responsible for the rapid abatement of the violation. 

In such circumstances, I would ordinarily be ab.le to find that the 

penalty assessable under the other five criteria should be reduced because 

of USS's extraordinary speed in achieving compliance. USS's brief (pp. 10-

11) complains, however, that the inspector's insistence upon rapid abatement 

coerced USS into providing a USS attorney with less competence in mine 

safety law than USS wanted to send. USS's complaints about its having to 

abate the violation largely offsets a conclusion that the speed of abatement 

should be used as a reason for reducing the penalty otherwise assessable 

because section llO(i) refers to "good faith" in achieving rapid abatement, 

rather than to a grudging or reluctant compliance. Therefore, I do not believe that USS should be given credit for more than normal good-faith abatement. Such a finding is consistent with the parties' stipulation to the 

effect that USS showed good faith abatement as to all violations after the 

citations were written (Tr. 12). When normal good-faith abatement has been 

found to have occurred, the penalty otherwise assessable under the other 

five criteria is neither increased nor decreased under the criterion of 

demonstrated good-faith in achieving rapid compliance. 

For the reasons given above, USS should be assessed a penalty of $80 

for the second violation of section 103(a). The $80 penalty is comprised 

of $60 under the criterion of history of previous violations, $10 under the 

criterion of negligence, and $10 under the criterion of gravity. The penalty 

would be less than $80 if USS were not a large operator and would be less 

than $80 if USS had shown that payment of penalties would adversely affect 

its ability to continue in business. 

Docket Nos. LAKE 81-114-RM, LAKE 81-115-RM and LAKE 81-152-M 

Introduction 

In notices of contest filed on March 27, 1981, in Docket Nos. LAKE 

81-114-RM and I.AKE 81-115-RM, USS seeks review of Order Nos. 293740 and 

296501, respectively. Both orders. were issued on March 9, 1981, pursuant 

to section 104(d)(l) of the Act. Order No. 293740 alleges a violation of 

30 C.F.R. § 55.9-1 and Order No. 296501 alleges a violation of 30 C.F.R. § 

55.9-2. In a proposal for a penalty filed on June 22, 1981, in Docket No. 

LAKE 81-152-M, the :Secretary of Labor seeks assessment of civil penalties 

for the violations of .sections 55.9-1 and 55.9-2. 

Order No. 293740 alleges that USS violated section 55.9-1 by failing 

to record a defect affecting safety on a truck at a time when the truck's 

rear end had shifted back 2-~ inches. Order No. 296501 alleges that USS 

663 
violated section 55.9~2 by failing to correct the shifted rear-end in the 

same truck cited in Order No. 293740 before the truck was used. Both 

orders are being considered simultaneously because the facts are interrelated (Finding No. 16 (in part) and Nos. 17-21, supra). 

Defect Affecting Safety 

The pertinent part of section 55.9-1 which is alleged to have been 

violated in Order No. 293740 reads as follows: 

* * * Equipment defects affecting safety shall be reported to, 

and recorded by the mine operator. 

Section 55.9-2 was alleged to have been violated in Order No. 296501. 

Section 55.9-2 reads as follows: 

Equipment defects affecting safety shall be corrected before 

the equipment is used. 

USS's brief (p. 14) argues that before either section 55.9-1 or section 55.9-2 can become operative, there must exist one or more "equipment 

defects affecting safety". USS argues that normal understanding of that 

phrase would have to mean that the standards involved were "* * * intended 

to cover defects which are normally associated with safe operation of a 

vehicle" (Br. 14). The brief continues with its argument by contending 

that whether the mechanical problem cited by the inspector constituted an 

equipment defect affecting safety should be interpreted in light of the 

knowledge and understanding of USS's personnel at the time the problem 

was first observed, rather than after a truck had rolled over under circumstances which had never previously been known to cause a truck to turn 

over. 

USS concludes the above-described argument by contending that since 

the mechanical probl~m cited by the inspector was not one which normally 

could be considered .to be a defect affecting safety, USS's personnel were 

justified in not reporting and recording its existence immediately and 

were justified in considering the problem to be something which could be 

postponed and corrected as a routine maintenance item in due course. It 

is further argued that pending such maintenance work, USS's personnel 

properly continued to use the equipment until such time as routine maintenance work would eventually have corrected the problem (Br. 15-16). 

The foregoing argument is not supported by the facts. The first aspect 

of USS's argument which must be addressed is that USS's brief insists on 

referring .to the problem in the rear end of its No. 856 truck as "a one-half 

inch shift in the rear end of" (Br. 16) its truck. An employee.named Kaivola 

was the driver of the truck at the time it rolled over. According to Inspector Bagley, Kaivola told him that "* * * the left-side rear duals were 

dogged back about two and a half inches" (Tr. 37). During cross-examination 

by USS's attorney, Kaivola stated "* * * the axle had shifted maybe half an 

inch or so" (Tr. 168). The dual wheels on the truck were enclosed by an el-· 

liptical indentation in the truck's bed which Kaivola called a "wheel well" 
(Tr. 175). There was not much clearance between the wheel and the well in 

which it turned. Therefore, the 2-.\-inch shift in the "rear duals" is not 

the same as the .\-inch shift in the "axle". USS's brief uses the reference 

to .\-inch because such usage makes the shift in the truck's rear end sound 

minimal and enhances its argument that a driver, observing only a .\-inch 

shift in an axle would certainly be justified in assuming that correction 

of a .\-inch shift in· an axle could be postponed until such time as the truck 

was in the shop for routine maintenance work. 

The fact is, however, that a shift of ~-inch in an axle is not like a 

.\-inch dent in a fender or a ~-inch misalignment in a license plate. 

Primozich, USS's foreman of the repair shops, made that clear when he stated 

that "* * * the wheel and the axle assembly can walk back and forth to break 

the spring" (Tr. 296). He also stated that"*** depending how far it 

shifts back, we've had it where they've shifted back, and the drive shaft 

literally fell on the ground. Well,. then the vehicle won't move" (Tr. 311). 

Primozich testified that the shifting of rear ends was not as much a problem 

now as it used to be. He stated that (Tr. 305-306): 

* * * For a while there, it was terrible. I had springs on racks 

up there you wouldn't believe, and I must have two to three hundred drive shafts stored at Minntac. 

In other words, even though the axle had shifted only .\-inch, the rear 

dual wheels had shifted 2-~ inches in the wheel well on the left side. It 

was easier for Kaivola to see a 2-.\-inch shift in the wheel well than it 

was to see a shift of .\-inch in the axle, but the two conditions existed 

simultaneously and served as the basis for Kaivola's conclusion that the 

shifting of the rear end should be reported to his foreman, Roivanen. 

The preponderance of the evidence controverts USS's claim that prior 

experience with shifted rear ends would not have enabled USS's personnel to 

believe that a shift in a truck's rear end could result in an accident if 

not soon corrected. Although Roivanen said that pa$t experience did not 

cause him to think that a shifted rear end would cause·-~c truck to flip over, 

he stated that shifted rear ends in the past had caused the tires to burn 

in the wheel well and that the rubbing could be severe enough to stop the 

truck's operation (Tr. 356). 

Kaivola, the driver of the truck which rolled over, testified as 

follows (Tr. 172): 

I considered it a safety problem. But I didn't think that 

it -- it was bad enough to where we couldn't drive it up out of 

the pit. Like -- like was mentioned earlier, we sometimes drive 

them up to the shops unless they're to the point where they have 

to come and retrieve them. 

Primozich, the repair shop foreman, testified that he felt shifted rear ends 

were maintenance problems, but he refused to categorize them as safety items 

because he feared that USS would impose on him an obligation to check rear 

ends on each piece 'of equipment just as he is required to check brakes as a 

665 
safety item. Primozich made that point clear in the following statement 

(Tr. 312): 

A. I wouldn't consider it a safety problem. We seem to 

go from one extreme to the other here. Ah, we either catch 

them when they come to the· shop for routine maintenance, or we 

go to the other extreme where we wind up with either the tires 

flat or the differential sitting under the truck. There doesn't 

seem to be a happy what you would call median in this. So I 

don't consider it a safety problem. Also going through twentyeight hundred vehicles at a maximum to 900, there's no.way that 

my people can go through each individual unit as a safety item. 

At other places in his testimony, Primozich stated that shifted rear 

ends would cause "excessive tire wear" (Tr. 310) and could stretch the brake 

lines so inuch that the brakes would fail and also could cause the drive 

shaft to fali out (Tr. 322). Primozich also testified that he would not 

drive a truck if the rear end had shifted back 2-~ inches because he would 

not feel safe in doing so (Tr. 322). USS's brief (p. 16) argues that 

Primozich testified that he would not drive a vehicle with a shift of 2-~ 

inches only as a result of the rollover in this proceeding, but the testimony (Tr. 310 and 322) cited in USS's brief shows only that Primozich was 

having a considerable amount of difficulty in reconciling his conflicting 

testimony which, on the one hand, classified shifting rear ends as a maintenance problem, and on the other hand, showed that shifting rear ends 

could lead to worn tires and blowouts, ruptured brake lines, and disengaged drive shafts. 

The testimony which I have reviewed above shows that a shift of 2-~ 

inches in a rear end is a defect affecting safety within the meaning of 

section 55.9-1 and section 55.9-2. The word "defect" is defined in 

Webster's Collegiate Dictionary as a "shortcoming" or "imperfection" and 

the word "safety" is defined as "the condition of being safe from undergoing or causing hurt, injury, or loss". It should be recalled that on 

the same day that Kaivola found the 2-~-inch shift in the rear end of 

Truck No. 856, he also found that the right front tire was worn down to 

the cords (Tr. 160; 385). Excessive tire wear is one of the signs of a 

shifted rear end (Tr. 310). Shifted rear ends can also cause tires to rub 

in the wheel wells and cause complete stoppage of a truck (Tr. 356). 

Shifting of rear ends can also lead to broken brake lines and cause drive 

shafts to fall out (Tr. 296; 324). 

Since the evidence clearly shows what can happen to trucks when they 

are continued in operation after a shift in the rear ends occur, it is 

certain that a shifted rear end is a "shortcoming" or "imperfection" in 

any truck having a shifted rear end. Inasmuch as a "shortcoming" or 

"imperfection" is a "defect" and since excessively worn tires, brake 

failure, and the falling out of drive shafts constitute conditions which 

would prevent persons riding in a vehicle with a shifted rear end from 

feeling "safe from undergoing" an "injury or loss", I believe that the 

record supports a finding, and I so find, that a shift of 2-~ inches in 

the rear end of the No. 856 truck constituted a "defect affecting safety" 

within the meaning of section 55.9-1 and section 55.9-2. 

666 
Occurrence of Violations 

The evidence unequivocally shows that the driver of the truck, Kaivola, 

reported the shifted rear end to his foreman, Roivanen, but Kaivola went 

home early and reminded Roivanen that he would not be on hand at the end 

of his shift to take the truck to the repair shops (Tr. 156-157). Therefore, the defect in the rear end of the truck was reported to Roivanen, one 

of USS's supervisory employees. He candidly testified that he was so busy 

with identifying the locations of shovels requiring repair that he forgot 

about the defect which Kaivola had reported to him (Tr. 328-329). Roivanen 

also testified that USS's plan for the reporting and recording of defects 

in his section had deteriorated so much that the oral report of the defect 

to him was all that Kaivola was required to do at the time the defect was 

reported to him on January 21, 1981 (Tr. 351). Although USS has a wellorganized repair shop where all reported defects are recorded, the repair 

shops can't record defects which are never reported to its personnel (Tr. 

298; 314). Therefore, Roivanen's failure to pass on to the repair shop the 

defect reported to him by Kaivola was a violation of section 55.9-1 because 

the defect, although reported to Roivanen, was never recorded by anyone 

because Roivanen completely forgot about the defect. 

The violation of section 55.9-2 was a direct consequence of Roivanen's 

failure to record the defect or advise the repair shop that the defect 

existed. The failure to take the No. 856 truck to the repair shop on 

either the afternoon or evening shift resulted in the truck's being found 

on the "ready" line by Kaivola when he came to work on the day shift on 

January 22, 1981 (Tr. 158). Although Kaivola wondered about whether the 

shift in the rear end had been corrected, he made no actual inquiry to 

find out for certain and drove the truck to the site of repair jobs without 

realizing that the shift in the rear end had not been repaired (Tr. 159). 

Kaivola saw smoke coming from the left rear dual wheels just a few seconds 

before the truck flipped over (Tr. 163) .. The foregoing facts support my 

conclusion that section 55.9-2 was violated because the equipment defect 

in the No. 856 truck was not corrected before the equipment was used. 

In Ideal Basic Industries, Cement Division, 3 FMSHRC 843, 844 (1981), 

the Commission interpreted section 56.9-2 [which is identical to the wording of section 55.9-2] to mean "* * * that use of a piece of equipment 

containing a defective component that could be used and which, if used, 

could affect safety, constitutes a violation of 30 CFR 56.9-2". The 

evidence in this proceeding shows that the No. 856 truck was used while 

its rear wheels and drive shaft were out of alignment so that the truck 

was traveling at an angle causing excessive wear of the tires and exposing 

the driver and other personnel to possible injury as a result of blowouts, 

dropping out of the drive shaft, and brake failure. 

The Violations Were Unwarrantable Failures 

Both USS's brief (p. 16) and MSHA's brief (p. 12) refer to the definition given by the former Board of Mine Operations Appeals in Zeigler 

Coal Co., 7 IBMA 280 (1977), in their arguments with respect to whether 

the violations of sections 55.9-1 and 55.9-2 resulted from unwarrantable 

667 
failure on the part of USS's employees. The Board held in the Zeigler 

case that ~n unwarrantable failure may be said to have occurred if it 

involves a "* * * violation, conditions or practices 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 lack of reasonable care". 

(7 IBMA at 295-96). 

The first argument raised by USS's brief (p. 17) in support of its 

claim that the violation was not the result of unwarrantable failure is 

that the foreman thought that the shifted rear end was a maintenance item 

which should be taken care of in due course in the interest of good 

scheduling of repairs and economy. That argument has· already been found 

to be fallacious in the preceding section of this decision and need not be 

reconsidered here except to, note that the foreman of the repair shops emphasized that it was important that shifts in rear ends be reported to the 

repair shops promptly because the longer the repairs were delayed, the more 

expensive the costs of repairs became. The foreman specifically pointed 

out that tires wear excessively and springs, brakes, etc., may fail if the 

repairs are delayed (Tr. 295; 298; 318). Consequently, USS's argument that 

the shifted rear end could have been delayed to be repaired as a maintenance 

item in the interest of good scheduling and economy is rejected as not 

supported by the record. 

The second argument in opposition to the inspector's finding of unwarrantable failure in USS's brief (p. 17) is that the foreman who failed 

to report the shifted rear end is conscientious and always has defects 

corrected when they affect safety. USS cites the testimony of Boucher, 

one of the passengers in the truck which rolled over, at transcript page 

379, where Boucher testified that the foreman had Kaivola take the No. 856 

truck to the repair shop as soon as they reported to him the fact that the 

right front tire was worn down to ~he cords. As I have already pointed 

out, the severe wearing of tires is one of the characteristics of a shifted 

rear end. Therefore, when the foreman was advised of the· wearing of a tire 

down to the cords, he should have been more concerned than he was, of the 

report that the rear end of the truck had shifted. The foreman was aware 

of the fact that the wheels would rub in the wheel well and smoke and 

even stall out the trucks' engines when their rear ends had shifted (Tr. 

356). Consequently, while the record shows that the foreman ordered a 

tire worn down to the cords to be replaced, the record also shows that 

that same foreman was so busy with determining the location of shovels 

which needed repairing, that he completely forgot to have the No. 856 

truck taken to the repair shop to have the rear end realigned. The foreman's failure in this instance not only exposed the men using the truck 

to possible injury, but also resulted in USS having to purchase a replacement truck because No. 856 was a total loss, according to the inspector 

(Tr. 32). 

The next argument in USS's brief (p. 17) in opposition to the inspector's finding of unwarrantable failure is that USS asks why the action of 

the driver in failing to fill out the required inspection form was not 

also an unwarrantable failure and why the failure of the driver on the 

next shift to report the truck's misalignment was not also the result of 

668 
an unwarrantable failure. The short answer to both of those questions is 

that they were unwarrantable failures. Roivanen testified that he and the 

other foremen had permitted the reporting of needed repairs in writing on 

forms provided by USS to deteriorate to a system under which it was permissible for the employees to report orally any defects which needed repairing. In fact, Ro~vanen specifically stated that the employees under 

his supervision were "just not inspecting" the vehicles assigned to them 

(Tr. 351-352). 

The fact that Roivanen and the other foremen could not control the 130 

"guys" (Tr. 152) in their department sufficiently to require them to fill 

out written forms pertaining to needed repairs is not a reason to hold that 

the inspector made a mistake in finding that Roivanen's failure to see that 

truck No. 856 was repaired was an unwarrantable failure. .As the Connnission 

majority stated in El Paso Rock Quarries, Inc., 3 FMSHRC 35, 40 (1981), 

the Act "* * * does not permit an operator to shield itself from liability 

for a violation of a mandatory standard simply because the operator violated a different, but related, mandatory standard". 

Effect of Modifying the Underlying Citation 

The inspector's Order Nos. 293740 (Exh. M-5) and 296501 (Exh. M-6) 

here under review were both issued under section 104(d)(l) of the Act and 

both were based on underlying Citation No. 293731 (Ech. M-2) issued under 

section 104(d)(l) of the Act. The second sentence of section 104(d)(l) !±_/ 

requires that an unwarrantable-failure citation be issued under the first 

sentence of section 104(d)(l) before an inspector may issue an order of 

!±_/ Section 104(d)(l) of the Act reads as follows: 

(d)(l) 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 innninent danger, 

such violation is of such nature as could significantly and substantially 

contribute to the cause and effect of a coal or other mine safety or health 

hazard, and if he finds such violation to be caused by an unwarrantable 

failure of such operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation given to the 

operator under this Act. If, during the same inspection or any subsequent 

inspection of such mine within 90 days after the issuance of such citation, 

an authorized representative of the Secretary finds another vi9lation of 

any mandatory health or safety standard and finds such violation to be 

also caused by an unwarrantable failure of such operator to so comply, he 

shall forthwith issue an order requiring the operator to cause all persons 

in the area affected by such violation, except those persons referred to 

in subsection (c) to be withdrawn from, and to be prohibited from entering, 

such area until an authorized representative of the Secretary determines 

that such violation has been abated. 

669 
withdrawal under that section. USS's brief (p. 18) states that it contested underlying Citation No. 293731 in a proceeding before Judge Vail 

and that Judge Vail granted the Secretary's motion to amend Citation No. 

293731 to show that it was issued under section 104(a) of the Act, instead of under section 104(d)(l) of the Act. USS correctly points out 

that when MSHA changed the basis for issuance of Citation No. 293731 to 

that of a citation issued under section 104(a), there was no longer in 

existence an underlying citation to serve as the foundation for Order Nos. 

293740 and 296501. 

When USS's counsel pointed out at the hearing before Judge Cook that 

underlying Citation No. 293731 was the subject of a review proceeding before a different judge, it was agreed that Judge Cook would not write the 

decision in this proceeding until the results of the other proceeding were 

known (Tr. 9; 387). At the hearing, MSHA's counsel stated that if the 

underlying citation should be modified or vacated, that MSHA would either 

amend the orders here involved or ask Judge Cook to do so (Tr. 387). 

After the cases in this proceeding were transferred to me, I wrote a letter 

on February 4, 1982, to counsel for both parties and suggested that MSHA 

modify the orders in this proceeding in accordance with the statement of 

MSHA's counsel at the hearing. 

In response to the aforementioned letter, MSHA's counsel mailed to me 

on March 2, 1982, modifications of Order Nos. 293740 and 296501. The 

modifications provided by MSHA's counsel will be given exhibi~ numbers and 

made a part of the record. The last exhibit received in evidence at the 

hearing by Judge Cook was Exhibit M-7. There is marked for identification 

and received in evidence as Exhibit M-8 a one-page modification of Order 

No. 293740 and there is marked for identification and received in evidence 

as Exhibit M-9 a one-page modification of Order No. 296501. Exhibit M-8 

modifies Order No. 293740 to Citation No. 293740 issued under section 

104(d)(l) of the Act. Exhibit M-9 modifies Order No. 296501 to show that 

the order is based on Citation No. 293740 instead of Citation No. 293731 

which, of course, has already been modified to be a citation issued under 

section 104(a) . 

Inasmuch as Order No. 293740 has now been modified to Citation No. 

293740 issued under section 104(d)(l) of the Act, it is necessary to examine the allegations made in the citation to determine whether it was 

validly issued under the provisions of section 104(d)(l). Most of the 

prerequisites for issuance of a citation under section 104(d)(l) have already been reviewed and need little additional discussion. The first requirement for issuance of a citation under section 104(d)(l) is that the 

inspector must find that a violation occurred. I have already found above 

under the heading of "Occurrence of Violations" that the violation of section 55.9-1 alleged in Citation No. 293740 occurred and that the violation 

of section 55.9-2 occurred as alleged in Order No. 296501. 

The next prerequisite for issuance of Citation No. 293740 is that 

the inspector must determine whether the violation constitutes an imminent 

danger. I have already shown in my discussion under the heading "Defect 

Affecting Safety" that the violations of sections 55.9-1 and 55.9-2 did 

670 
not constitute imminent dangers because Kaivola, the driver of the truck 

which rolled over, thought it could be driven on January 21, 1981, out of 

the pit to the repair shop if it were driven in a careful manner. It is 

true that the shifted rear end caused an imminent danger on January 22 

just before the truck's left rear spring disintegrated and caused the 

truck to roll over. The truck's rolling over on January 22, however, 

occurred after Roivanen had failed to record the defective rear end or 

have the defect repaired. The truck was again driven on the afternoon 

shift without having had the shifted rear end repaired. Therefore, at 

the time the violation of section 55.9-1 occurred, there was not an imminent danger. 

Having ruled out the existence of an imminent danger, the next step 

in issuing a citation under section 104(d)(l) is determining whether the 

violation of section 55.9-1 "* * * could significantly and substantially 

contribute to the cause and effect of a coal or other mine safety or health 

hazard". The Commission has recently redefined the question of what constitutes a violation which may be considered to be "significant and substantial" in its decision in Cement Division, National Gypsum Co., 3 

FMSHRC 822 (1981). In that case the Commission noted that the word "hazard" 

connotes a "danger" or "peril" and that both "significant" and "substantial" 

mean "important" and "notable". With those terms in mind, the Commission 

then stated that a violation may be considered to be significant and substantial under section 104(d)(l) if the violation involves at least a 

remote possibility of injury and, additionally, that there should exist a 

reasonable likelihood of occurrence of an injury or illness of a reasonably 

serious nature. 

I have also shown in my discussion under the heading of "Defect Affecting Safety" that USS's personnel had sufficient knowledge from occurrence 

of-shifts in rear ends of vehicles before the one reported by Kaivola on 

January 21, 1981, that such shifts were associated with a remote possibility of an injury which would have a reasonable likelihood of occurrence 

and be of a reasonably serious nature. The driver of the truck, Kaivola, 

the foreman, Roivanen, and the foreman of the repair shops, Primozich, 

all testified that shifted rear ends cause wheels to rub in the wheel 

wells so that they smoke and stall out trucks' engines and that shifted 

rear ends cause excessive wear of tires and blowouts. Additionally, at 

least Primozich knew before the truck rolled over that shifted rear ends 

cause drive shafts to fall out and brake lines to rupture. All the aforementioned hazards were known by USS's personnel to be associated with 

shifted rear ends before No. 856 truck rolled over on January 22, 1981, 

as a result of the foreman's failure to record the shifted rear end so 

that the truck could be taken out of service and repaired before it was 

continued to be used. Failure to take the truck out of service caused it 

to roll over with the result that the truck became a total loss and the 

three men riding in it miraculously suffered only minor back injuries and 

a chipped elbow (Finding Nos. 4-6, supra). 

The discussion under "Defect Affecting Safety" shows beyond any doubt 

that the violation of section 55.9-1 and the violation of section 55.9-2 

were significant and substantial when those terms are considered in light 

671 
of the facts in this proceeding and under the definition given by the Commission in its National Gypsum decision, supra. 

The final step in determining whether Citation No. 293740 was properly 

issued under section 104(d)(l) is whether the violation of section 104(d)(l) 

was caused by an unwarrantable failure of USS's personnel. My discussion 

above under the heading "The Violations Were Unwarrantable Failures" shows 

that Roivanen, under the pressure of his other duties, forgot about 

Kaivola's having reported the shifted rear end to him and forgot that 

Kaivola was leaving early so that someone other than Kaivola would have to 

take the truck to the repair shop for correction of .the rear-end problem. 

The facts also show that Roivanen and the other foremen in his department 

had allowed the reporting of defects in equipment to d~teriorate to the 

point that the employees were simply not inspecting their trucks (Finding 

Nos. 17 and 18, supra). There can be no doubt but that the violation of 

section 55.9-1 and the violation of section 55.9-2 were the result of unwarrantable failures by USS personnel. 

My review of the criteria governing issuance of unwarrantable-failure 

citations supports a conclusion that Order No. 293740 was properly modified 

to Citation No. 293740 and that Order No. 296501 was properly modified to 

show its issuance after the inspector had found that another violation had 

occurred which was the result of an unwarrantable failure. Although I 

have already found that the violation of section 55.9-2 alleged in Order 

No. 296501 meets the test of a significant and substantial violation, the 

court held in International Union, UMWA v. Kleppe, 532 F.2d 1403 (D.C, 

Cir. 1976), ~· den., 429 U.S. 585 (1976), that the violation which 

causes an inspector to issue his first unwarrantable-failure order following issuance of an unwarrantable-failure citation, need not be found to be 

significant and substantial. I have shown above that the violation of 

section 55.9-2, which triggered the issuance of Order No. 296501, was 

significant and substantial. I have considered the issue of whether the 

violation of section 55.9-2 was significant and substantial because the 

inspector made such a finding in Order No. 296501 and because USS has 

argued in its brief (p. 19) that t~ violations of sections 55.9-1 and 

55.9-2 were not correctly found to be significant and substantial. 

I find that the modification of Order No. 293740 to unwarrantablefailure Citation No. 293740 was properly done because the evidence shows 

that Citation No. 293740 meets all the criteria for issuance of an unwarrantable-failure citation under section 104(d)(l) of the Act. I also 

find that Order No. 296501 was properly modified to provide that Citation 

No. 293740 is the underlying citation which now supports the valid issuance 

of Order No. 296501. For the foregoing reasons, I further find that 

Citation No. 293740 and Order No. 296501 were properly issued under section 

104(d)(l) of the Act and should be affirmed. 

Assessment of Penalties 

I have already found that violations of sections 55.9-1 and 55.9-2 

occurred. It is necessary that civil penalties be assessed under section 

672 
llO(i) of the Act. In my discussion of the six criteria with respect to 

the first violation of section 103(a) alleged in Citation No. 293736, I 

made findings as to two of the six criteria and the findings as to those 

two criteria continue to be applicable to the two violations here under 

consideration. Specifically, it has already been found that USS is a 

large operator and that payment of penalties will not cause USS to discontinue in business. 

History of Previous Violations 

I have already explained in assessing the penalty for the first violation of section 103(a) that Exhibit M-1, the exhibit pertaining to 

history of previous violations in this proceeding, does not show which 

specific sections of the Act or regulations have previously been violated 

by USS. Inasmuch as I cannot use my normal methods of evaluating the 

criterion of history of previous vidlations because of lack of sufficient 

information in the record, I shall employ the same method with respect to 

the violations of sections 55.9-1 and 55.9-2 which I used with respect to 

the first violation of section 103(a) and shall assess an amount of $10 

for each violation under the assessment formula in paragraph (1) of section 100.3(c) because USS has an average of more than 50 prior violations 

per year. As I have already explained, the lack of evidence in the record 

prevents me from making any determination under paragraph (2) of section 

100.3(c). 

Negligence 

The criterion of negligence has already been discussed above in considerable detail under the heading of "The Violations Were Unwarrantable 

Failures". I there noted that both violations occurred because USS's 

foremen had allowed the reporting of defects in equipment to deteriorate 

to oral reports and Roivanen expressed a belief that the men were not even 

making inspections of their equipment before using it. Roivanen was particularly negligent in forgetting to follow up on an oral report by the 

driver of the truck. Roivanen's failure to record the defect and to see 

that the shifted rear end was repaired was the cause of the truck's continued use on the afternoon shift after the defect was first reported, 

and was also. the cause of the truck's further continue~ use on the next 

day up to the time that it flipped over. 

While USS's brief (p. 17) tries to minimize the foreman's negligence, 

his own testimony shows that he was simply not assuring that defects were 

recorded and corrected. The mere fact that Roivanen immediately authorized 

Kaivola to have a tire worn down to the cords replaced is not an especially 

redeeming factor because anyone who has been around trucks or cars for 

even a few months knows that tires worn to the cords are a blowout hazard. 

A foreman in Roivanen's capacity should also have been interested in determining why a tire would be worn down to the cords without such extreme 

wear having been noted and its replacement having been done in the usual 

course of maintenance. Roivanen should have known, as Primozich knew, 

that shifted rear ends cause excessive tire wear. Therefore, when Kaivola 

orally reported to Roivanen that the rear end of his vehicle had shifted, 

673 
Roivanen should have realized that the shift in the No. 856 truck was extreme and hazardous or the right front tire would not have been worn down 

to the cords. 

I believe that Roivanen's lack of care constituted at least ordinary 

negligence. His own testimony shows that he was so concerned about finding the locations of shovels which needed repairing that he completely 

forgot about Kaivola's report pertaining to the conditions of the No. 856 

truck. In short, Roivanen's negligence brought about both violations. 

Therefore, under the criterion of negligence, USS should pay a penalty of 

$400 for each violation. 

Gravity 

The criterion of gravity has been discussed in considerable detail 

above under the heading of "Defect Affecting Safety". As I have already 

shown, shifts in vehicles' rear ends cause excessive tire wear and both 

Kaivola and Roivanen were aware that shifted rear ends prior to January 21, 

1981, had caused the rear tires to bind in the wheel wells to the point 

that the vehicles could not be driven. Primozich knew that shifts 

in rear ends could lead to excessive tire wear, to the rubbing and smoking 

of tires in the wheel wells, to the stalling out of the engines, to the 

dropping out of drive shafts, to the rupturing of brake lines, and to the 

disintegration of the springs through failure of U-bolts. While the evidence does not show that Kaivola and Roivanen were aware of the hazards 

which are associated with shifted rear ends to the extent that Primozich 

was, the evidence clearly shows that Roivanen knew enough about the hazards 

of shifts in vehicles' rear ends to make him realize that such repairs 

cannot be delayed to some future point in time when the trucks are taken 

to the shop for routine maintenance, such as lubrication of the chassis 

and change of engine oil. In view of the hazards which are associated 

with the violations, I find that USS should be assessed $100 for each 

violation under the criterion of gravity. 

Good-Faith Effort To Achieve Rapid Compliance' 

As I have previously indicated, an operator is considered to have 

shown a normal good-faith effort to achieve rapid compliance if he corrects 

an alleged violation within the time provided for abatement in the inspector's citation. It must be recalled that the inspector originally 

cited the violations here involved in orders of withdrawal which do not 

establish a time for abatement because normally the operator's personnel 

have been withdrawn from the area of danger, except for those employees 

who must remain at the place where the hazards exist for the purpose of 

correcting the violation. Since a withdrawal order disrupts production, 

it is generally assumed that an operator will correct the violation as 

soon as possible in order to obtain a termination of the order so that 

production can be resumed. 

Inasmuch as the orders were written on March 9, 1981, after an investigation which was completed sometime after February 13, 1981, and 

674 
inasmuch as the investigation pertained to a truck which rolled over on 

January 22, 1981, the criterion of good-faith abatement is difficult to 

evaluate. Nevertheless, there are some factors which ought to be taken 

into consideration under the criterion of good-faith abatement. First, 

it must be recalled that USS investigated the truck's rollover on 

January 22, 1981, the day that it flipped over. The results of USS's 

investigation of the incident were recorded in a report which has been 

received in evidence as Exhibit M-7 in this proceeding. The report is a 

model of brevity and .lists the following six steps to prevent recurrence 

of a truck's rolling over: 

1. Small truck garage will check rear springs "by wire brushing and visual inspection. 

2. Contact operators on checking undercarriage on trucks. 

3. Use vehicle inspection sheets. 

4. Red tag trucks with questionable alignment. 

5. Contact operators to check weight of items being carried 

on the shovel trucks. 

6. Publicize. 

Although USS's brief has sought to deny that its formen were in any 

way at fault in contributing to the rollover of the No. 856 truck, the list 

of steps which USS adopted to prevent a recurrence of the rollover reveal 

that USS had recognized, long before MSHA investigated the incident or 

wrote the citation and order here involved, that its procedures needed to 

be improved and greater care needed to be taken in reporting defects in 

equipment. If the inspections cited in the first two steps above had been 

taken prior to or on January 21, 1981, the shift in the rear end of No. 

856 truck would have been detected and corrected before the shift became 

serious. If the first two steps had not resulted in detection of the 

shifted rear end, steps 3 and 4 would have brought about a recording of 

the fact that the defect existed and would have prevented the truck from 

being used until the defect was corrected. Steps 5 and 6 would also have 

had a salutary effect in making the employees aware of their responsibilities in the area of reporting defects before those defects result in 

accidents. 

When the inspector terminated Order No. 293740 (now Citation No. 

293740) and Order No. 296501, he indicated that USS had procedures for 

carrying out the provisions of sections 55.9-1 and 55.9-2. The inspector 

did not recommend any corrective action which USS should take which it 

had not already taken. Moreover, it must be recognized that USS had completed its investigation and had adopted the six remedial steps described 

above before the inspector had even begun his investigation in response to 

the complaint which MSHA had received under section 103(g)(l) r,equesting 

that the accident be investigated. 

The purpose of assessing penalties under the Act is to deter companies 

from future violations of the mandatory safety and health standards. When 

a company has written proof of the fact that it had already recognized the 

shortcomings of its supervisory personnel in allowing the truck to get into 

a condition which could cause it to roll over and has taken steps to correct 

675 
those shortcomings before MSHA ever cites it for the violations, it is 

obvious that assessing large penalties would be unwarranted and would not 

accomplish the purpose for which they were placed in the Act. Therefore, 

I believe the facts in this proceeding warrant a finding under the criterion of good-faith abatement that any penalties assessed under the other 

five criteria should be reduced by 50 percent under the criterion of goodfaith abatement. 

By way of summary, I have found above that for each violation, USS 

should be assessed a penalty of $10 under the criterion of history of 

previous violations, $400 under the criterion of negligence, and $100 under 

the criterion of gravity, or a total penalty of $510 for each violation. 

Reduction of the penalty by 50 percent under the criterion of good-faith 

abatement means that USS should be assessed a penalty of $255 for the violation of section 55.9-1 and $255 for the violation of section 55.9-2. 

It should be noted that the parties' stipulation with respect to the 

criterion of good-faith abatement stated: "U. S. Steel demonstrated good 

faith in abating the citations at issue within the time given for abatement" 

(Tr. 12). As I have explained above, the stipulation is inapplicable as 

to the violations of sections 55.9-1 and 55.9-2 because both violations 

were originally cited by the inspector in orders of withdrawal which do not 

specify a time within which the violations are required to be abated. 

While it is true that Order No. 293740 has been modified to Citation No. 

293740, the modification did not include an abatement period (Exh. M-8). 

It can be argued, of course, that the criterion of good-faith abatement is inapplicable to violations cited in orders of withdrawal, but there 

is nothing in section llO(i) which provides that the criterion of goodfaith abatement should be ignored in assessing any civil penalty. Moreover, 

the criterion of good-faith abatement can hardly be ignored in this instance when it is considered that USS abated both violations before they 

were cited by adopting procedures which should assure that the violations 

do not again occur. Since USS had abated the violations before they were 

cited, it cannot be shown that USS was under any coercion to act swiftly 

because its plant was under any kind of closure order. 

I am aware that MSHA's brief (p. 13) recommends that USS be assessed 

a civil penalty of $1,000 for the violation of section 55.9-1 and a penalty 

of $1,500 for the violation of section 55.9-2, but MSHA's brief does not 

discuss any of the six criteria other than negligence and gravity and does 

not discuss any of the ameliorating aspects of the violations which warrant 

the assessment of the moderate penalties which I have determined should be 

imposed. 

WHEREFORE, for the reasons hereinbefore given, it is ordered: 

(A) The notice of contest filed on February 23, 1981, in Docket No. 

IAKE 81-102-RM is denied and Citation No. 293736 issued January 22, 1981, 

is affirmed. 

676 
(B) The notice of contest filed on February 23, 1981, in Docket No. 

!AKE 81-103-RM is denied and Citation No. 293739 issued February 9, 1981, 

is affirmed. 

(C) The notice of contest filed on March 27, 1981, in Docket No. 

!AKE 81-114-RM is denied and Citation No. 293740 issued March 9, 1981, as 

modified, is affirmed. 

(D) The notice of contest filed on March 27, 1981, in Docket No. 

!AKE 81-115-RM is denied and Order No. 296501 issued March 9, 1981, is 

affirmed. 

(E) Within 30 days from the date of this decision, United States Steel 

Corporation shall pay civil penalties totaling $2,100.00 which are allocated 

to the respective violations as follows: 

Docket No. !AKE 81-152-M 

Citation No. 293740 3/9/81 § 55.9-1 .....•.............. $ 

Order No. 296501 3/9/81 § 55.9-2 ...................... . 

Total Penalties Assessed in Docket No. !AKE 81-152-M $ 

Docket No. !AKE 81-167-M 

255.00 

255.00 

510.00 

Citation No. 293736 1/22/81 § 103(a) of Act ...........• $1,510.00 

Docket No. !AKE 81-168-M 

Citation No. 293739 2/9/81 § 103(a) of the Act .....•... $ 80.00 

Total Penalties Assessed in This Proceeding •..........• $2,100.00 

Distribution: 

~e~yoS~ Administrative Law Judge 

(Phone: 703~756-6225) 

Louise Q. Symons, Attorney, United States Steel Corporation, Room 

1580, 600 Grant Street, Pittsburgh, PA 15230 (Certified Mail) 

Stephen P. Kramer, Esq., Office of the Solicitor, U. S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Mr. Clifford Kesanen, United Steel Workers of America, 307 First 

Avenue North, Virginia, MN 55792 

677 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF. ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th. FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 15198'l 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. LAKE 82-18 

A.C. No. 11-00598-03105 

v. 

Eagle No. 2 Mine 

PEABODY COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. 

Department of Labor, Chicago, Illinois, for Petitioner; 

Thomas R. Gallagher, Esq., St. Louis, Missouri, for 

Respondent. 

Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

This case was commenced by the filing of a Petition for the assessment of a civil penalty for an alleged violation of the mandatory safety 

standard contained in 30 C.F.R. § 75.304, requiring an on-shift examination of each working section for hazardous conditions and the immediate 

correction of any such conditions. Pursuant to notice, the case was 

heard in St. Louis, Missouri on February 17, 1982. Federal Mine 

Inspector Harold Gulley, Thomas Dobbs, and Federal Mine Inspector 

Supervisor Mike Wolfe testified on behalf of Petitioner. Foremen Marvin 

Rash and Bill Chubb, Mine Manager Bob McPeak, Superintendent Forrest 

Younker and Environmental Technician Marty McDonald testified on behalf 

of Respondent. 

Respondent waived its right to submit a posthearing brief and made 

a closing argument on the record. Petitioner filed a posthearing brief. 

Based upon the entire record including the testimony and exhibits introduced at the hearing, and the contentions of the parties, I ~ake the 

following findings of fact and conclusions of law. 

678 
APPLICABLE REGULATORY PROVISIONS 

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

Each operator shall undertake to carry out on a 

continuing basis a program to improve the roof control 

system of each coal mi_ne and the means and measures to 

accomplish such system. The roof and ribs of all active 

underground roadways, travelways, and working places 

shall be supported or otherwise controlled adequately 

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

roof control plan and revisions thereof suitable to the 

roof conditions and mining system of each coal mine and 

approved by the Secretary shall be adopted and set out 

in printed form on or before May 29, 1970. The plan 

shall show the type of support and spacing approved by 

the Secretary. Such plan shall be reviewed periodically, 

at least every 6 months by the Secretary, taking into 

consideration any falls of roof or ribs or inadequacy of 

support of roof or ribs. No person shall proceed beyond 

the last permanent support unless adequate temporary 

support is provided or unless such temporary support is 

not required under the approved roof control plan and the 

absence of such support will not pose a hazard to the 

miners. A copy of the plan shall be furnished to the 

Secretary or his authorized representative and shall be 

available to the miners and their representatives. 

30 C.F.R. § 75.202 provides as follows: 

The operator, in accordance with the approved plan, 

shall provide at or near each working face and at such 

other locations in the coal mines as ·the Secretary may 

prescribe an ample supply of suitable materials of 

proper size with which to secure the roof of all working 

places in a safe manner. Safety posts, jacks, or other 

approved devices shall be used to protect the workmen 

when roof material is being taken down, crossbars are 

being installed, roof bolt holes are being drilled, roof 

bolts are being installed, and in such other circumstances 

as may be appropriate. Loose roof and overhanging or 

loose faces and ribs shall be taken down or supported. 

Except in the case of recovery work, supports knocked 

out shall be replaced promptly. 

679 
30 C.F.R. § 75.304 provides as follows: 

At least once during each coal-producing shift, or 

more often if necessary for safety, each working section 

shall be examined for hazardous conditions by certified 

persons designated by the operator to do so. Any such 

conditions shall be corrected immediately. If such 

condition creates an imminent danger, the op~rator shall 

withdraw all persons from the area affected by such 

conditions to a safe area, except those persons referred 

to in section 104(d) of the Act, until the danger is 

abated. Such examination shall include tests for methane 

with a means approved by the Secr~tary for detecting 

methane and for oxygen deficiency with a permissible 

flame safety lamp or other means approved by the 

Secretary. 

30 C.F.R. § 75.1722 provides as follows: 

(a) Gears; sprockets; chains; drive, head, tail, 

and takeup pulleys; flywheels; couplings, shafts; 

sawblades; fan inlets; and similar exposed moving machine 

parts which may be contacted by persons, and which may 

cause injury to persons shall be guarded. 

(b) Guards at conveyor-drive, conveyor-head, and 

conveyor-tail pulleys shall extend a distance sufficient 

to prevent a person from reaching behind the guard and 

becoming caught between the belt and the pulley. 

(c) Except when testing the machinery, guards shall 

be securely in place while machinery is being operated. 

Findings of Fact 

1. At all times relev.ant to this proceeding, Respondent was the 

operator of an underground coal mine in Gallatin County, Illinois, 

known as the Eagle No. 2 Mine. 

2. Respondent is a large mine operator. The subject mine is a 

medium sized mine. Its products enter interstate commerce. 

3. From August 13, 1979 to August 24, 1981, Respondent had 

551 paid violations of mandatory health and safety standards. 

Thirty-two of these violations involved 30 C.F.R. § 75.200; 18 involved 

30 C.F.R. § 75.202; 6 involved 30 C.F.R. § 75.304 and 14 involved 

30 C.F.R. § 75.1722(a). 

680 
4. On August 13, 1981, the conveyor chain and sprocket on the 

ratio feeder in the 5 South off 3 Main East section of the subject mine 

had an exposed area measuring approximately 3-1/2 inches by 16 inches 

not protected by a guard. The feeder was energized and in service. 

5. Inspector Gulley issued a citation charging a violation of 

30 C.F.R. § 75.1722 because of the condition described in Finding of 

Fact No. 4. 

6. The condition described in Finding No. 4 had been present for 

more than one shift and Respondent should have known of it. 

7. The condition was moderately hazardous. A number of miners 

would be expected to travel between the feeder and the ribs. Although 

they would be unlikely to put their hands in the unguarded area, a slip 

or fall could result in their doing so unintentionally and injuring a 

finger, hand or arm. 

8. Inspector Gulley issued a citation on August 13, 1981, charging 

a violation of 30 C.F.R. § 75.202 because of overhanging ribs and face 

in four different entries in the 5 South off the 3 East Section of the 

subject mine. 

Discussion 

There is little question but that there were overhanging faces and 

ribs in the entries as cited. Respondent's positions concerning the 

overhangs are (1) in conventional mining using air docks rather than 

explosives, overhangs at the face are unavoidable; (2) the mining conditions were such with numerous sulpher balls present in the coal seam 

as to make straight cutting difficult; (3) the overhanging faces and 

ribs in question were not hazardous; (4) the area in question was 

"dangered off" and the overhanging areas would have been taken down in 

the normal mining cycle. The standard is clear and requires overhangs 

to be taken down or supported, regardless of whether they occur unavoidably (as Respondent contends) or could be .avoided or minimized by better 

mining practices (as MSHA contends). 

I accept the opinion of Inspector Gulley that these conditions were 

hazardous. There is a sharp dispute as to whether there was a danger 

sign warning miners to stay out of the area. Inspector Gulley and 

Miner's representative Thomas Dobbs testified that there were no danger 

signs; Foreman Marvin Rash and Environmental Technician Harty UcDonald 

testified that there were danger signs. I accept the testimony of 

Gulley and Dobbs in part because I find it difficult to believe that 

danger signs were present and company representatives did not point them 

out when told of an impending citation. I note also that Foreman Rash 

was not present at the crosscut where the conditions were cited at the 

time the citation was issued. 

681 
9. I find that there were overhanging ribs and faces in four 

different entries in the 5 South off the 3 East section of the subject 

mine on August 13, 1981, and that these conditions were hazardous to 

miners. 

10. The conditions described in Finding No. 9 were known to 

Respondent. 

11. Inspector Gulley issued a citation on August 13, 1981, charging a violation of 30 C.F.R. § 75.200 because of a violation of the roof 

control plan: (1) the face of No. 5 entry was not bolted to within 

6 feet of the face and it was cut, drilled, and shells were put in 

holes; (2) an area in the crosscut between entries 2 and 3 measured was 

not bolted although it measured 13 feet 9 inches. 

Discussion 

Once again there is a conflict in the testimony as to whether the 

area in question was dangered off. For the reasons given with respect 

to the cited violation of 30 C.F.R. § 75.202, I accept the testimony 

of Inspector Gulley and Mr. Dobbs, and find that there were not danger 

signs in the area at the time the citation was issued. 

12. I find that the conditions in the face of No. 5 entry and in 

the crosscut between entries 2 and 3 in the 5 South off 3 East Section 

in the subject mine were as described in the citation referred to in 

Finding No. 11. 

13. The conditions described in the citation referred to immediately above were hazardous. 

injuries to miners. They were 

been known, 'to Respondent. 

They could have resulted in serious 

obvious and were known or should have 

14. On August 13, 1981, Inspector Gulley issued another citation 

alleging a violation of 30 C.F.R. § 75.304 because he concluded, based 

on the conditions for which the three previous citations were issued, 

that Respondent did not perform a proper on-shift examination. 

15. Inspector Gulley returned to the mine on August 24, 1981. He 

issued two citations. One citation charged a violation of the roof 

control plan because an entry was driven 26-1/2 feet wide when the plan 

limited it to 20 feet wide and two crosscuts were wider than permitted 

by the plan. The area was not "dangered out" and timbers were not set 

as required by the plan. I find that the conditions were as charged, 

that they created a hazard and that they were known to Respondent. The 

second citation charged a violation of 30 C.F.R. § 75.202 because of 

overhanging ribs from 48 inches to 60 inches in all the faces in entries 

1 to 6 and in the last open crosscut. I find that the conditions were 

as cparged, that they created a hazard, and that they were known to 

Respondent. 

682 
16. Because he concluded that the conditions he found demonstrated 

that Respondent had again not conducted a proper on-shift examination, 

Inspector Gulley issued an order of withdrawal on August 24, 1981, 

charging a failure to abate the citation alleging a violation of 

30 C.F.R. § 75.304 issued on August 13, 1981. 

Issues 

1. Whether the evidence establishes that Respondent failed on 

August 13, 1981, during the coal producing shift, to examine each working section for hazardous conditions, and to immediately correct any 

such conditions? 

2. If a violation was established, what is the appropriate 

penalty? 

(a) Does the evidence establish a failure to abate the violation 

charged? 

Conclusions of Law 

1. Respondent is subject to the Federal Mine Safety and Health Act 

of 1977, and the undersigned Administrative Law Judge has jurisdiction 

over the parties and subject matter of this proceeding. 

2. Respondent is a large operator, and this conclusion will be 

reflected in any penalty assessed. 

3. Respondent has a moderately serious history of prior violations, 

and this conclusion will be reflected in any penalty assessed. 

4. The Violation 

The basic issue in this case is whether a violation of 30 C.F.R. 

§ 75.304 can be established by inference. The only direct evidence is 

the testimony of Respondent's foreman that he did in fact conduct an 

on-shift examination. The inspector's conclusion that Respondent failed 

to conduct such an examination, or failed to conduct it properly, is 

based on what he observed after the fact. The terms of the mandatory 

standard require (1) an examination for hazardous conditions and (2) an 

immediate correction of such conditions. I conclude that a violation 

of these requirements may be established by evidence of uncorrected 

hazardous conditions existing during a coal producing shift. I conclude 

further that the evidence in this record establishes that Respondent 

failed to conduct the required examination on August 13, 1981, and 

failed to immediately correct hazardous conditions. A violation of 

30 C.F.R. § 75.304 was established. 

683 
5. The Penalty 

The inspector cited three violations of mandatory safety standards 

on August 13, 1981, prior to citing the violation involved herein. I 

have found that they all involved hazardous conditions. The violations 

of 30 C.F.R. §§ 75.200 and 75.202 were serious; the violation of 

30 C.F.R. § 75.1722(a) was less serious. In any event failure to conduct proper on-shift examinations for hazardous conditions is itself 

serious. The conditions cited had been found on many previous occasions. 

MSHA supervisory Inspector Wolfe testified that the subject mine had 

been guilty of poor mining practices for many months, especially with 

respect to overhanging ribs and faces. I conclude that the violation 

was the result of Respondent's negligence. 

The conditions found by Inspector Gulley on August 24, 1981, 

establish that Respondent (the fact that different foreman were involved 

is irrelevant) continued its poor mining. practices and failed to 

sufficiently concern itself with proper on-shift examinations. A 

closure order was required before the practice was corrected. I conclude 

that Respondent did not attempt in good faith to achieve rapid compliance 

after notification of a violation. 

Based on these findings and conclusions, an appropriate penalty for 

the violation is $500. 

ORDER 

Based on the above findings of fact and conclusions of law, 

Respondent is ORDERED to pay within 30 days of the date of this decision, 

the sum of $500 as a civil penalty for the violation of 30 C.F.R. 

§ 75.304 found herein to have occurred on August 13, 1981. 

t MVu.S k"'!J:vck-iz~4 ~ James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, Chicago, IL 60604 

Thomas R. Gallagher, Esq., Attorney for Peabody Coal Company, P.O. 

Box 235, St. Louis, MO 63166 

684 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5205 ·LEESBURG PIKE APR 151982 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

J. D. MILLER, 

WILBUR VANDERPOOL, 

Respondents 

Civil Penalty Proceedings 

Docket No. WEST 81-244-M 

A.O. No. 48-00155-05072-A 

Docket No. WEST 81-245-M 

A.O. No. 48-00155-05073-A 

Alchem Trana Mine 

DECISIONS 

Appeareances: J. Philip Smith, Attorney, U.S. Department of Labor, 

Arlington, Virginia, for the petitioner; John A. Snow, 

Esquire, Salt Lake City, Utah, for the respondents. 

Before: Judge Koutras 

Statement of the proceedings 

These consolidated proceedings concern proposals for assessment of 

civil penalties filed by the petitioner against the in~vidually named 

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

Health Act of 1977, 30 U.S.C. 820(c). The respondents were charged 

with "knowingly" authorizing, ordering or carrying out three alleged 

violations which are detailed in an imminent danger order issued by an 

MSHA inspector on November 12, 1979, pursuant to sections 107(a) and 

104(a) of the Act. 

The respondents filed timely answers to the proposals, and pursuant 

to notice, hearings were conducted in Green River, Wyoming, December 2-3, 

1981, and the parties appeared by and through counsel and participated 

fully therein. Post-hearing proposed findings and conclusions, with 

supporting arguments, were filed by the parties and I have considered 

those arguments in the course of these decisions. 

Issues 

The principal issue raised in these proceedings is whether the 

individually named respondents knowingly authorized, ordered, or carried 

out the alleged violations. If they did, the next question presented is 

the appropriate civil penalty which should be assessed against them for 

the violations. Additional issues raised by the parties are discussed 

in the course of the decisions. 

685 
Applicable Statutory and Regulatory Provisions 

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

30 U.S.C. § 801 et ~· 

2. Section llO(c) of the 1977 Act, 30 U.S.C. § 320(c). 

3. Commission Rules, 29 CFR 2700.1 et ~· 

Discussion 

The section 107(a) and 104(a) Imminent Danger Order No. 0575918 

was issued on November 12, 1979, and the conditions or practices are 

described as follows on the face of the citation: 

(57.20-3, 57.20-9) An imminent danger in the 200 

belt tunnel existed in that a large quantity of coal, 

and coal dust had spilled from the area conveyor belt. 

A quantity of diesel fuel was floating on the ground water 

in the area. This created an imminent fire hazard. (57.17-1) 

The stairway to the area was not lighted, so that during this 

shift, 1545 to 2345 hours, personnel could not safely 

use this stairway. Only personnel that are needed to 

correct these deficiencies are to enter this area. 

The citation was abated on November 11, 1979, at 3:00 p.m., and the 

inspector's notice in this regard states as follows: 

The imminent danger in the 200 belt tunnel was abated 

(57.20-3, 57.20-9). The coal and coal dust in the area 

had been properly cleaned. (57.17-1). The area had been 

properly lighted . 

• 

Testimony and Evidence Adduced by the Petitioner 

MSHA Inspector Gerry Ferrin testified as to his background and experience 

and confirmed that he conducted an inspection at the mine in question on 

November 12, 1979. He was accompanied by fellow inspector David Ainsbach, 

and he stated that the inspection was conducted as a result of a safety 

complaint made by miners at the mine and communicated through union 

President Terral Smith. The mine produces trona, which is a sodium 

carbonate compound. The citation which he issued concerned certain 

conditions at the mine coal handling facility used to unload and transport 

coal to certain storage areas and to the boilers which are used to operate 

the mine power plant. Coal was unloaded onto belts in two underground 

tunnels identified as the 200 and 201 tunnels, and the coal was transported 

on the tunnel conveyor belt system to either the storage areas or directly ,, 

to the plant boilers (Tr. 7-20). 

Upon inspection of the 201 tunnel area in question, he observed 

that the belt was running, that diesel fuel was present on top of water 

which had accumulated in the trenches along the belt areas, there was a 

686 
strong odor of diesel 'fuel, visibility was poor due to leaky steam, the 

lights on the tunnel stairway were out, and the belt idlers were running 

in the coal and coal dust which had accumulated along the belt. He issued 

an innninent danger order because he considered all of the conditions 

which he found and which are described on the face of the citation to be 

innninently dangerous. He identified six pictures (exhibit P-4), which 

he took at the time of his inspection as representative of the conditions 

which he observed. While there was some illumination in the area along 

the tunnel, visibility was poor due to the steam leak and he stated that 

he did not sample the coal accumulations which he observed. The area was 

not posted or dangered off and he measured the accumulations as ranging 

from zero to 10 inches. He observed no rock dust applied to the coal 

accumulations, and some of the accumulations were deposited on dry surfaces. 

The belt conveyor was at "table height" level off the floor and he observed 

"explosive coal dust" in the areas cited (Tr. 20-33). 

Inspector Ferrin described the coal handling facility as including 

both the 200-201 tunnels and he described the area where the two belt 

tunnels came together as the coal transfer point where the coal being 

transported dumps from the 200 belt onto the 201 belt. He stated that 

he observed possible ignition sources in or near the coal accumulations, 

and these included the belt rollers and idlers, power cables which were 

present in the adjacent 200 tunnel, and a "faulty" electrical light 

circuit. However, he conceded that he did not trace the circuit out or 

otherwise determine what the problem was. His concern was over a possible 

explosion hazard due to the coal dust accumulations running in the belt 

idlers. He indicated that two maintenance men, Douglas Malone and Gary 

Dotson, were assigned to do some welding work on the steam leak in the 

area but that they did not do the work because they believed the conditions 

were dangerous and they refused to work there. It was their complaint 

that prompted the safety complaint to the union president, who in turn 

reported the conditions to MSHA. Inspector Ferrin stated that his investigation determined that the lighting conditions had existed for two days 

prior to his arrival on the scene. Although the mine is classified as 

gassy, his methane readings detected no presence of methane and the 

area cited was a "working place" within the meaning of the regulations. 

(Tr. 60-74). 

With regard to the lack of lighting on the stairway leading to the 201 

tunnel, Inspector Ferrin stated that the condition presented a slipping 

or falling hazard, and with the presence of steam in the area, a drop in 

temperature would have resulted in moisture freezing on the stairway, 

thus adding to the hazard. He indicated that Mr. J. D. Miller was the 

power house superintendent in charge of the entire coal handling facility, 

which was part of the ·power plant, and that the particular shift foreman 

in charge was Mr. J. W. Vanderpool. Mr. Ferrin was of the opinion that 

the shift foreman was responsible for dangering off or posting any area 

that is hazardous and not known to other employees. He saw no barricades 

or danger sign in any of the areas in question, and he detailed what he 

believed to be the area which would be affected by any fire from the 

accumulations of materials which he cited (Tr. 74-88). 

687 
Mr. Ferrin could not estimate the time required to correct the 

illumination problems which the respondent was having, and he described 

the abatement efforts made after the order issued (Tr. 90). The diesel 

fuel problem has not been totally abated and he detailed the problems 

connected with the original fuel spill in the area, and indicated that 

the problems connected with the spill had been lessened to a great 

extent, and with the removal of the ignition sources which he observed 

the mere presence ·of any remaining fuel from the spill would not-·be an 

imminent danger since he was more concerned with the build-up of coal 

accumulations. He also indicated that the diesel fuel problem is a 

long term problem and that company management has diligently applied 

itself to solving it (Tr. 89-98). 

On cross-examination, Mr. Ferrin reiterated the procedures connected 

with the coal handling tunnels, and indicated that the coal handling 

areas are not part of the gassy portion of the mine in question. He 

defined "float" coal dust as "airborne" dust, and while such airborne 

dust was in the 200 tunnel, that was not his immediate concern at the 

time of his November 12th inspection. Mr. Ferrin referred to his previous 

deposition of November 20, 1981, and conceded that he stated that he did 

not believe that the airborne or float dust in question was an explosion 

hazard, but that it was a fire hazard (Tr. 114-119). He went on the describe 

what he believed were ignition sources, and stated that because of the 

dust present any dust control or collection devices were not working, but 

he conceded he made no effort to determine the presence of any such 

dust collecting devices (Tr. 123). 

Mr. Ferrin testified that the welders who were sent in to the tunnel to 

do some work were not under the supervision of Mr. Miller or Mr. Vanderpool, 

but that they would have requested welders to work on and repair any 

steam leaks. However, he saw no work orders for such work which may 

have been signed by these individuals, and he had no knowledge as to 

whether the welders consulted or advised them they were going into the 

tunnel (Tr. 126-127). He also described the responsibilities of the 

powerhouse and section foremen (Tr. 129-133). 

In response to questions from the bench, Mr. Ferrin confirmed that 

he would not have issued an imminent danger order had the belt been shut 

down and the area dangered off. His citation for a violation of 57.20-3, 

would normally be a "housekeeping" situation for failure to clean up 

accumulations which presented a falling, slipping, or tripping hazard. 

However, on the day in question, he was concerned with a combination of 

conditions which he believed presented a possible disaster and that is 

why he issued an imminent danger withdrawal order (Tr. 139-143). 

Mr. Ferrin described the extent of the coal accumulations which he 

found along the entire length of the 200 belt tunnel and stated that 

they were a combination of spillage and accumulations (Tr. 144). He 

based his opinion that Mr. Vanderpool knew of the conditions on the fact 

that he had admitted to him that the cited area needed clean up but he 

688 
refused to send anyone there because of the lighting situation. He 

did not consider Mr. Vanderpool's refusal to send men to the area as 

unreasonable, but did consider the fact that he was not "thorough enough" 

(Tr. 147). As for Mr. Miller, he believed that he should have known 

about the conditions cited because the problems had existed for more 

than one shift and the area was not so large as to preclude periodic 

inspections (Tr. 148). 

Mr. Ferrin testified that the illumination problem had existed for 

at least two days prior to the issuance of the citation and that Mr. Miller 

admitted to an MSHA conference officer that he and Mr. Vanderpool had 

discussed the problem just prior to beginning of the shift (Tr. 149). 

Mr. Ferrin had no knowledge as to the specific circuit problems connected 

with the lack of illumination (Tr. 151). 

Inspector Ferrin's Deposition 

In his deposition of November 30, 1981, (pg. 9), Inspector Ferrin 

stated that he observed coal and coal dust built up on the belt conveyor 

table so that the belt and idlers were actually running in the coal. He 

considered this condition to be a fire hazard and a hazard to personnel 

entering the area due to a possibly "slick or occluded or blocked 

stairway" (pg. 10). He also observed large quantities lying on the floor, 

spilled or in unconsolidated piles in the walkway at the foot of the drop 

shoot, and at other unconsolidated areas through the 200 tunnel. The 

walkways going from the 200 to the 201 tunnel areas were working areas 

where men would be working (pgs. 12-14). The accumulations in the walkways ranged from zero to eight inches (p. 14). He considered the accumulations 

of coal and coal dust to be hazardous because they constituted a fire and 

ignition hazard and a possible slip and fall injury (p. 15). Methane · 

readings indicated zero (p. 16). 

Nowhere in his deposition does Mr. Ferrin refer to float coal dust. 

However, at pg. 16, when asked whether he made any determination that 

the coal dust was at an explosive level, the matter of float dust was 

first introduced by respondent's counsel snow, and Mr. Ferrin made the 

following responses: 

Q. Did you make any determinations as to whether the 

coal was at an explosive level? 

A. Would you please define "dust". You're talking about 

float dust? lying dust? what? 

Q. Let's go with the dust in the air, float dust. 

A. Okay. It was very hard to make a determination because 

of steam and other--it was a pretty blind area to walk into. 

689 
Q. Do you have an opinion whether or not that was an 

explosive area? 

A. I don't believe the aerial borne, or float dust, was 

a hazard. 

Q. For explosive purposes? 

A. I.don't believe for explosive purposes, right. 

Q. What about the dust on the ground? I forgot what you 

called it. 

A. On the conveyor table. 

Q. What about that dust? 

A. Yes, I did consider that as a very serious hazard. 

Q. A fire hazard? 

A. Yes. 

Q. How come? 

A. It burns. 

Q. Well, what's the--

A. It's very easily ignitable. 

Q. Very easily ignitable? 

A. Yes. 

Q. What is the ignition source? 

A. Conveyor idlers, conveyor belts, hot bearings. Virtually 

anything. People working in the area. 

Inspector Ferrin went on to state that at the time of his inspection 

he had a "quick discussion" with Mr. Vanderpool, but he could recall no 

discussion with Mr. Miller. Mr. Vanderpool told him that he had instructed 

two of his people to stay out of the tunnel area because of the lighting 

problem. The track mobile operator and belt operator confirmed the fact 

that Mr. Vanderpool had instructed them to stay out of the area because 

of the lighting problems and that they were advised not to clean up the 

area because of the lighting problem (pgs. 22-23). 

690 
Mr. Ferrin confirmed that he inspected the tunnel upon abatement of 

the order. The tunnel had been cleaned up, the lights were working, but 

he did not know whether the diesel fuel problem has been taken care of 

since he has not been back to the mine for over a year. However, as of 

the time the abatement took place, the ground water and diesel had subsided 

to a "lesser degree" and the diesel odor was not as strong (pg. 25). 

Douglas Malone testified that in November 1979, he was employed at 

the mine as a maintenance mechanic. On November 12, 1979, at approximately 

5:00 p.m .. at the start of his shift Foreman Larry Youngbird assigned 

him and Gary Datson to go to the area of the 201 tunnel to weld a leak in 

the steam system. This leak was in the transfer point where the 200 and 201 

tunnels come together. Mr. Malone had been in the area for two days 

prior to November 12 working on revisions in the heating system. He 

proceeded to the stairway leading to the 200 belt. The stairway lights 

were out, and after going down two or three steps his glasses fogged up 

from the steam which was present in the area and he observed airborne 

coal dust mixed with the steam. He also observed large accumulations of 

coal and oil at the bottom of ~he stairwell, and the belt was running 

(Tr. 156-160). 

Mr. Malone testified that after observing the conditions in the 

area of the 200 tunnel stairwell he concluded that had he proceeded to 

weld at the area of the steam break an explosion or fire would have 

occurred due to the presence of the coal accumulations and dust and he 

immediately left the area and informed Mr. Youngbird that he believed 

the conditions were hazardous and that h&would not work there until 

such time as the area was cleaned up. Mr. Youngbird said nothing about 

the conditions and Mr. Malone did not believe that Mr. Youngbird would 

have sent him to the area to weld had he known about the hazardous 

conditions in the area. (Tr. 160-164). 

Mr. Malone stated that due to the extent of the coal accumulations, 

the conditions probably existed for five days prior to November 12. He 

also indicated that the area had not been barricaded or dangered off. 

He also believed that the area cited was the responsibility of the power 

house superintendent, Mr. Miller and that Mr. Vanderpool was the shift 

supervisor. Mr. Vanderpool supervised seven to nine men and that Mr. Miller 

had approximately 30 men under his supervision (Tr. 164-168). 

Mr. Malone stated that he complained about the conditions which he 

found to Mr. Gary Datson who was his union shop steward at the time and 

that Mr. Datson in turn reported the matter to Mr. Terral Smith, the local 

union president, and Mr. Smith went to the area to inspect the conditions. 

Mr. Malone believed that Mr. Vanderpool and Mr. Miller should have been 

aware of the conditions present in the 200 tunnel because they were 

responsibile for the area. Mr. Malone also alluded to several fires which 

had occurred in the area a year or so earlier, but he indicated that they 

were quickly extinguished. He also believed that a new wire was installed 

to correct the illumination violation. (Tr. 168-177). 

691 
On cross-examination, Mr. Malone explained the process for obtaining 

a "welding._permit", and stated that it is issued after the process and 

maintenance foreman had examined the area where the work was to be 

performed. On the day in question, he had such a permit "for outside the 

200 area" (Tr. 177). He stated that Mr. Vanderpool would normally issue 

such a permit, but on the day in question he had no such permit for the 

200 tunnel and he admitted that he went to the tunnel in question without 

a permit. He further admitted that he went there "to look" and not to 

weld (Tr. 179). He also admitted that he would not have welded without 

such a permit and that normal procedures would have required Mr. Vanderpool 

to inspect the area before issuing a permit (Tr. 179). 

Mr. Malone stated that some of the lights in the 201 ·tunnel were on, 

some were out, and two light globes were covered with coal dust. He 

had no knowledge that Mr. Miller or Mr. Vanderpool issued any work 

orders for the repair of the steam leak, but did say that Mr. Youngbird 

asked him to weld the steam leak since he would be in the area anyway 

(Tr. 181). Mr. Malone described the fire sprinkler deluge system 

installed in the tunnels and indicated that it was a good system (Tr. 182). 

He did allude to two past minor fires in the tunnels caused by a rag and 

some insulation burned by a welding torch (Tr. 183). He also indicated 

that welding is often done without permits and that it was not unusual 

for any number of workmen to be in the 200 and 201 tunnels (Tr. 185). 

Mr. Malone stated that he believed Mr. Vanderpool to be a good 

safety foreman, but that he should have dangered the cited area off and was 

neglectful for not doing so (Tr. 186). Mr. Malone believed that a fire 

would have occurred had he lit his welding torch in the areas in question 

(Tr. 186). He also believed that Mr. Miller had been relieved of his 

duties at one time for not insuring that the tunnel areas were kept clean 

(Tr. 197). He also alluded to past complaints made to MSHA for failure 

to clean up the tunnels and stated that citations had been issued for 

these conditions in the past (Tr. 199). 

Terral J. Smith, employed by Allied Chemical, testified that he has 

been president of the local union for three years, and was in that capacity 

on November 12, 1979. He confirmed that he had received a complaint from 

Gary Datson, the union steward, by telephone call to his house, concerning 

the conditions in the 200 belt tunnel. Mr. Datson informed him that he 

and another man had been assigned to do some maintenance work in the tunnel, 

and when they went there they had no lighting and had to use their 

flashlights. They found steam and coal dust all around the area and felt 

it was an unsafe imminent hazard and asked Mr. Smith, for some help. Mr. Smith 

stated that he then called MSHA that same evening and asked for an investigation 

of the tunnel conditions in the coal handling area, which he described 

as encompassing both the 200 and 201 tunnels. He described the 200 tunnel 

as the unloading area and the 201 tunnel as the transfer tower. As the 

result of his complaint, Insepctor Ferrin came to the area to conduct 

an inspection, and he (Smith) went to the plant and proceeded to the 200 

tunnel area. After proceeding down the stairs, he observed a great deal 

of steam in the tunnel, went back up the stairs, and proceeded to the 

top of the 201 tunnel where he observed coal dust "stacked up" and "peaked 

692 
on the handrails". Dust was on the lights and under the belt, and 

the sump was full of water and coal dust, and he believed the belt was 

running. Although he observed lights at the 200 belt line tail pulley, and he 

saw none on the stairway. The light at the top of the stairs was not 

working, and he observed float coal dust in the air as well as coal 

dust piled in the area (Tr. 210-216). 

Mr. Smith testified that the tunnel areas he visited were not 

dangered off, and that the responsibility for dangering the area off 

was with Mr. Miller and Mr. Vanderpool. He was of the opinion that 

the area should have been dangered off, and he believed the conditions 

he observed constituted an imminent danger and that is why he lodged a 

complaint with MSHA (Tr. 217-220). He examined a copy of the citation 

issued by Inspector Ferrin and agreed with his findings. He also believed 

that the coal accumulations presented a fire and explosion hazard and 

described the ignition sources which were present in both tunnels (Tr. 222). 

He confirmed that similar citations had been issued for similar coal 

build-ups in the tunnel and believed that Mr. Miller and Mr. Vanderpool 

were responsible for seeing to it that such conditions did not occur again 

(Tr. 223). Mr. Vanderpool admitted to him that he was aware of the 

coal and coal dust build-up as well as the fact that there was no lighting 

on the stairway in question. As for Mr. Miller, Mr. Smith stated that 

there was no way he could not have known about the conditions cited since 

he is responsible for everything in the area as well as for the work of 

his supervisors (Tr. 226). Mr. Smith referred to several "Labor-Management 

Safety Inspection Reports", exhibit P-10, to support his contention that 

mine management was aware of the conditions concerning the coal build-ups 

and lack of lighting (Tr. 226-247). 

Mr. Smith testified that Mr. Malone told him that he (Malone) and 

Gary Datson had gone to the 200 and 201 belt tunnels on November 12, 1979, 

to do some welding work on a steam leak. Mr. Smith reiterated that he 

too went there that same day and found the light on the entry to the 200 

stairway leading into the 200 tunnel was out. The purpose of the light 

is to illuminate the stairway, and he did not believe that the lack of 

light would have prevented anyone from going down the stairway to clean 

the area because they could use cap lamps and flash lights to find their 

way down the stairway (Tr. 261-264). Further, when he went to the area 

of the 200 tunnel during the inspection the lights along the belt where 

the coal piles were located were all on, and Mr. Smith's concern was 

that "they sent machanics down there to fix something, to do welding, 

in an area that had coal dust and piles of it all around, where they could 

have set off the whole damn place" (Tr. 268). The belt was running at 

that time, and only Mr. Vanderpool and Mr. Miller had the authority to shut 

it down (Tr. 270). It was also their responsibility to danger the area 

off (Tr. 274). 

On cross-examination, Mr. Smith conceded that the conditions in 

the 200 tunnel which are the subject of the instant case have been a 

continuing problem spanning several years, and he alluded to several of 

the inspection reports which he previously identified and testified to 

693 
(Tr. 292-303). Mr. Smith indicated that he had been to the 201 tunnel 

three or four times during the period June 1, 1979 and November, 1979, 

and he confirmed that the tunnel should be cleaned up daily or small quantities of coal will accumulate over a couple of shifts. If left 

unattended, larger build-ups will occur (Tr. 306). He also indicated 

that with the belt running, coal will be dispersed into the air, but if 

the belt is operating properly not too much will disperse (Tr. 310). 

In response to further questions, Mr. Smith stated that the coal 

moved along the belt tunnels in question is used to run the plant boilers 

and electrical generators, and he explained the coal dumping and transfer 

procedures to accomplish this task (Tr. 311-315). He believed that the 

accumulations of coal in the tunnel areas in question probably accumulated 

over a period of three or more shifts (Tr. 316). He also identified 

exhibit P-4 as a photograph of the 200 belt coal handling area and 

described the coal and coal dust accumulations on and about the belt 

rollers (Tr. 317-318). 

Inspector Ferrin was recalled and confirmed that on the day of his 

inspection on November 12, 1979, the belt was running and this would 

contribute to the worsening of the build-up of coal and coal dust. He 

also believed that if the foreman or powerhouse superintendent were aware 

of the accumulations, the belt should have been shut down. He also 

confirmed that the stairway light was out and since someone could have 

fallen down the stairs, that condition was an imminent danger in and out 

of itself. Since the light was intended to light the access way, this 

was no excuse for not cleaning up the accumulations which were present 

in the tunnel. He identified several ignition sources which were present 

as portable lights, cap lamps, miner's lights, and belt rollers. The 

shift supervisor, Mr. Vanderpool and the plant superintendent, Mr. Miller 

had the authority to shut the belt down, and he confirmed that all of the 

violations were abated in less than 24 hours (Tr. 320-328). He also 

confirmed that when he first went to the 200 tunnel at 6:00 p.m., 

and discovered the conditions which he believed were an imminent danger 

the lights were on and the belt was running (Tr. 341). 

Testimony and Evidence Adduced by the Respondent 

Robert Gary Datson testified that he is presently employed by Allied 

Chemical Company as a maintenance foreman and on November 12, 1979, he 

was employed as a mechanic and also served as a union steward. He stated 

that he visited the 200 tunnel coal handling facility area on November 12 

at approximately 4:30 p.m. after receiving a complaint that the tunnel 

area was dirty. He asked Doug Malone, his working partner and also a 

union steward to check the area out since he and Mr. Malone had been 

there the day before, November 11, and Mr. Malone reported that the 

area was "just as bad" on the 12th of November as it was on the 11th. 

Mr. Datson stated further that he walked into the tunnel area with the MSHA 

inspectors when they were there and he confirmed that th~re was oil and 

694 
water present, coal accumulations built up along the belt rollers, and 

a "tremendous amount of steam" in the area. He also stated that all of 

the tunnel lights were out except for those at the top of the tunnel 

stairway. In his opinion, the conditions in the tunnel coal handling 

area were a fire hazard, and had any welding work been done in that area 

the cutting torch would have been an ignition source (Tr. 342-348). 

On cross-examination, Mr. Datson stated that he and Mr. Malone had 

worked in the 201 tunnel on November 11, and as he walked through the 200 

tunnel to get to the 201 tunnel he observed the conditions which MSHA's 

inspectors had cited and considered hazardous. He confirmed that he has 

heard of sparks being generated along the belt line, that welding could 

cause sparks, and he indicated that he had in the past ignited a fire 

while working in a similar coal load-out area. He also testified that 

Mr. Youngbird did not assign him to do any welding work on November 12, 

but did assign him some work in the 201 tunnel on November 11, in order 

to fix a steam leak in the area. Mr. Datson stated that he would not 

perform any work in the 200 tunnel because he considered the conditions 

there to be hazardous. He also stated that on November 11, the 201 tunnel 

belt was running and that the area had not been barricaded. After his 

crew complained to him, he in turn complained to union president Terral 

Smith on December 12, 1979. He also indicated that Mr. Malone was not 

one of the people who complained to him. 

Mr. Datson stated that shift foreman Vanderpool would have been 

directly responsible for the tunnel coal handling area at the time in 

question, and that Mr. Miller, as the power house superintendent, would 

have had the overall responsibility for the tunnel areas in question since 

they are considered part of the power house operations. 

Mr. Datson testified that the stairway light leading to the 200 

tunnel was working and lit on both the 11th and 12th of November, but 

that the lights used to illuminate the tunnel area were not operating 

on those days. In addition, he believed that the coal accumulations which 

were cited by inspector Ferrin had to have existed for at least two days 

prior to the inspection, that the conditions were present on both 

November 11 and 12th and that on the 12th they were getting worse rather 

than better. He also believed that the accumulations were present for 

at least one full shift prior to November 11. He observed no airborne 

coal dust, has no idea what float coal dust is, and as far as he is 

concerned the conditions cited posed a fire hazard rather than an explosion 

hazard (Tr. 348-370). 

Wilbur Vanderpool testified that he is employed by Allied Chemical 

as the power house operations foreman and that he had been in this position 

since ths spring of 1974. He confirmed that he was the shift foreman for 

the 4 p.m. to midnight shift on November 12, 1979, and indicated that his 

duties as foremanwere to oversee the power house and coal handling facility 

operation. He identified Mr. J. D. Miller as his immediate supervisor, 
and he stated that his shift is normally used to unload coal at the coal 

handling facility in question and the morning or day shift is normally 

used for clean up. Mr. Vanderpool described the coal unloading operation 

and stated that company policy dictates that no one is to be in the tunnel 

areas while coal is being .unloaded, and no one is to be there for clean 

up while the belt is running. He was not sure whether the policy 

he alluded to is in writing, but indicated that it is his normal operating 

procedure (Tr. 370-374). 

Mr. Vanderpool stated that he arrived at the mine on Monday, November 12, 

1979, at approximately 3:20 p.m. and went to the foreman's office where 

he spoke with the previous shift foreman, Stan Daniels. He discussed the 

coal handling situation with Mr. Daniels and Mr.· Miller, and in particular 

they discussed the fact that the coal handling tunnel areas had not been 

cleaned up. Mr. Vanderpool explained that they were experiencing 

problems with the lights and illumination in the tunnel areas in question 

and stated that he did not barricade the areas because he was trying to 

get the lights repaired and had specifically instructed the coal handler 

and track mobile operator not to go into the tunnel areas in question. 

These two men were normally assigned to the tunnel, and since the decision 

had been made to run coal on his shift, and since his men were under 

instructions to stay out of the area, he saw no need to barricade the areas 

(Tr. 375-387). 

Mr. Vanderpool confirmed that he went to the tunnel area cited at 

approximately 4:00 or 4:15 p.m., after his discussion with Mr. Daniels, 

and observed the accumulations of coal and coal fines touching the belt 

rollers. He conceded the fact that coal is a combustible product and 

that a hazard was present in the areas in question. He also believed 

that in such an operation there was always a fire hazard present, but 

he did not believe that the conditions "were that bad", and that 

a water deluge system along the belt line would help in a fire situation. 

He also alluded to the fact that weather conditions will affect the coal 

handling process and that a chute plug which malfunctions may cause the 

tunnel areas to be literally buried in coal which is being dumped on the 

belts (Tr. 387-392). 

On cross-examination, Mr. Vanderpool confirmed that the foreman's 

book entries for November 10, 1979, reflect that work was done on the 

coal spills in the coal handling facility. He also confirmed that he 

was required to inspect the area in question at least once during his 

shift, and that he was in fact the shift foreman during the period 

in question and that while he was not generally aware of the provisions 

of 30 CFR 57.18-2, requiring on-shift inspections, he acknowledged that 

his supervisors have told him that he is to inspect his area and to "watch 

out for the safety of my people" (Tr. 394-398). 

Mr. Vanderpool stated that he and the previous shift foreman discussed 

te tunnel lighting problems on November 10, and that the problems were 

intermittent, at least through the swing shift of November 11, and that 

he inspected the 200 belt area that day as well as at 4:00 p.m. on November 12th, 

696 
and that coal and coal dust were found that day (Tr. 399-410). He 

stated that company policy dictated that mechanics, laborers, or electricians 

were not to go to the coal handling areas for clean-up or maintenance 

while the belts were running, and that if welding work was to be done in 

the area a permit was required to be obtained from him or another operating 

foreman (Tr. 414). 

Mr. Vanderpool stated that he visited the area cited by the inspector 

at least once at the.start of his shift at 4:00 p.m., and at least once 

thereaf~er before 6:00 p.m., and that he was concerned with any existence 

of float coal dust. He observed that the dust-cpllecting system was not 

operating, and after finding that it had been shut off ordered his people 

to turn it back on (Tr. 419). He did not know whether the fire deluge 

system was on or off during the time in question (Tr. 420). In his 

opinion, during the time he examined the 200 tunnel between 4 and 6 p.m. 

on November 12, i979, the conditions which he found did not present a fire 

hazard which is "not any more than usual (Tr.423). He confirmed the fact 

that his principal concern on the day the citation issued was to insure 

that coal was loaded into the storage bunkers because they were getting 

low (Tr. 429). 

Mr. Vanderpool testified that any operator in the belt area in 

question had the authority to shut the belt down in the coal handling 

facility if they encountered any trouble, and that while his permission 

was not required to do this he would ordinarily be informed of the fact 

that the belts were shut down (Tr. 431). He explained the decision to run 

coal on his shift during the day in question as follows (Tr. 433-434): 

Q. -- what was the criteria used in deciding to go 

forward with unloading coal cars, on your shift? 

A. We decided to, because of the lighting situation, 

to go ahead and unload coal, keep the people out of the area, 

because we felt because of this intermittent problem with the 

lights at this time that we did not want people in the area 

cleaning up -- I personally felt that ~ didn't want my people to 

go down in that area with the light situation the way it was, 

be working in that area, and in those conditions, and have the 

lights go out. 

Q. Were the electricians at that time working on the 

lights? 

A. I was told that they would be working on my shift until 

dark, by.the electrical foreman. I did not observe, personally 

observe any electricians in the area of the tunnels when I went 

down there. 

Q. Was that a factor that was used in the decision to 

unload coal? 

697 
A. Yes, sir. I would say that would be one of the 

factors we made the decision to go ahead and unload coal, 

yes, sir. 

Q. I'm trying to say what -- was that discussed at 

your meeting with Mr. Daniels and Mr. Miller? 

A. That the electricians would be working on the 

lights? Yes, ~ir. 

And, at pages 435-436: 

A. I'm not saying that just because we have to produce 

that plant that I'm going to produce it come hell or high 

water. What I'm saying is, I felt that the coal spillage problem 

was not a real big hazard. 

It was dirty, it was filthy, it was a tripping hazard, 

yes. Any coal spillage, whether it's that one or one on top 

of the mine, is a tripping hazard, if you have people going into 

that area. 

I felt that the thing to do at the time -- J. D. Miller 

felt the same way -- was for that particular shift, because 

of the lighting problem, to keep the people -- my people, now, 

the operating people, to stay out of the problem. If they had a 

problem they were to call me and we would go ahead and unload coal 

that shift, hopefully, because we were told that there would be 

electricians down there working on the circuit. We were told 

this 

I don't personally view electricians down there. I ~as 

told that they'd be in the area. 

In response to bench questions, Mr. Vanderpool testified that on the 

evening the order issued he was in the cited tunnel areas on two occasions 

and observed the accumulations of coal in question (Tr. 446). He conceded 

that he failed to barricade the area, and in hindsight candidly admitted 

that he should have barricaded the area to keep people out and then proceeded 

to unload coal (Tr. 450). 

J. D. Miller testified that he is presently employed by Allied Chemical 

as engineering superintendent and has held that position since October 1, 

1981. He was power plant superintendent from February, 1973 to February, 1978, 

a maintenance engineer from February 1, 1978 to June 28, 1979, and was 

temporarily assigned as power plant superintendent from June .28, 1979 

to December 1, 1979, filling in for the regular superintendent who was 

sick. Mr. Miller stated that he holds a B.S. degree in mechanical engineering 

from Texas Tech and prior to being employed by Allied was employed by 

Texas Utilities for 19 years and his experience includes the operation 

of coal handling areas, boilers, dryers, and coal sampling. 

698 
With regard to the citation and order which was issued by Inspector 

Ferrin on November 12, 1979, Mr. Miller stated that he arrived at the mine 

on Monday, November 12, at approximately 7:45 a.m •. He met with shift 

foreman Dan Daniels who informed him that the lights were out in the coal 

handling areas, and that the areas were dirty and had not been cleaned 

up since Saturday. Mr. Miller stated that he called for an electrician 

to check the lights but was advised that none would be available until 

the afternoon 4 p.m. shift. Under the circumstances, the men assigned 

to Mr. Daniel's coal handling shift were assigned to clean the tripper 

room and other areas and no coal was unloaded during that shift. 

Mr. Miller states that sometime between on~ and three p.m. he 

proceeded to the 201 tunnel area with a flash light. He then climbed 

up a ladder looked into the 200 tunnel area with the aid of his flashlight and also observed coal accumulations in that tunnel. The lights 

in both tunnels were out and he decided that it would be hazardous for 

men·to clean-up the accumulations without any tunnel lights. He discussed 

the situation with Mr. Daniels, and the decision was made to unload and 

run coal on Mr. Vanderpoel's 5 p.m. shift. He believed this would not be 

hazardous because the two men normally assigned to the tunnels would 

not be working there and normal company operating procedures required 

that men not work in the tunnels while the belts were running. 

Mr. Miller stated that at the time he initially viewed the coal 

accumulations, he was not concerned with any explosion hazard because 

the belts were not running and therefore there were no ignition sources 

present, and the belt idlers were made of rubber. Mr. Miller stated 

further that he did not work on Saturday and Sunday, November 10 and 11, 

and was not aware of the conditions in the tunnel. He was aware of the 

leaking steam problem but did not consider that hazardous and stated 

that it aided in keeping the coal accumulations moist and wet. He believed 

that it would have been unsafe for men to clean-up the coal accumulations 

while the tunnel lights were out (Tr. 45-1467). 

On cross-examination, Mr. Miller confirmed that he went into the 

coal handling area on the afternoon of November 12, 1979, sometime between 

one and three-thrity in the afternoon. The belt was not running while 

he was there since no coal was run that day. He stayed in the area for 

about 20 minutes and could not say whether the belt was running at other 

times during the day. However, he did indicate that even though coal was not 

run, the belt could still be running, and the decision not to run coal 

was made by him and Mr. Daniels at 8:15 that morning. He also indicated 

that when Mr. Vanderpoel's shift began that day, the decision was made 

to run coal (Tr. 467-472). 

Mr. Miller confirmed that during the day shift on November 12 when 

he went to the coal handling area he observed coal and coal dust accumulations 

and he described the area as "dirty". He· also observed "quite a bit 

of steam in the atmosphere", and saw no float coal dust because the 

belt was not running. He gave the order to run coal on Mr. Vanderpoel's 

shift, and normal procedure is to run coal until the coal storage 

699 
bunkers are filled and then the belt is shut down. He confirmed that 

the accululations of coal and dust he observed were "more than normal", 

four to five inches in places, and that it was possible that once the 

belt started up again the accumulations would increase because of possible 

spillage (Tr. 473-475). 

Mr. Miller stated that it was his understanding that men would 

work on the tunnel lights during the 4:00 to 12:00 shift on November 12, 

when he told Mr. Vanderpool to run coal during that same shift, and that 

the belt would be running (Tr. 477). He also indicated that when he 

visited the area he saw no lights at all and "the whole thing was dark" 

(Tr. 481). He could not see the stairway entry of the 200 tunnel from 

where he was positioned and did not know whether that light was out 

(Tr. 483). He confirmed that he last visited the 200 and 201 coal 

handling tunnel areas on the Friday afternoon of November 9, and the 

area was clean. He specifically went there to check the area out because 

of coal unloading difficulties which were encountered all week and he 

wanted to see if the area had been cleaned. He indicated that normal 

procedures call for daily clean-up, but that intermittent problems which 

began with the lighting on the evening of November 9 and continuing 

to November 12, prevented clean up (Tr. 484-487). Once the order issued, 

extra people were put on the clean-up detail and he believed the conditions 

cited were corrected during the next shift and possibly into the one 

after that (Tr. 488). He was not at the mine during the intervening 

Saturday and Sunday and was informed of no problems on those days. He 

and Mr. Vanderpool decided to run coal on November 12 because they believed 

the lighting problems in the tunnel areas precluded clean-up and he 

did not want people in there cleaning up with no lights (Tr. 489-490). 

No coal was run on Monday during the day shift because the bunkers were 

full (Tr. 492). 

Douglas Malone was recalled in rebuttal by the petitioner and 

testified as to where he performed work in the coal handling facility on 

November 11, 1979. He stated that he did some work on the steam leak 

and he drew a diagram of the areas where he was at (exhibit ALJ-1). He 

described the area as the "tail end of the 201 belt way", within three 

feet of the 200 belt way. He confirmed that Mr. Datson was with him 

at that time and they finished the welding work, and that the lights in 

both areas were on at that time (Tr. 495-496). He stated that he was 

assigned to go back to the same area on November 12, and when he returned 

to the area between four and six-thirty he observed coal and coal dust 

accumulations, as well as float dust and the belt was running. Some of 

the lights were on and others were convered with coal dust. He entered 

the area from the entryway into the 200 tunnel and the stairway light 

was off, but the 201 tunnel lights were on. Although he could recall 

no coal on the belt, the belt was running, and he could not recall coal 

unloaded on either day (Tr. 501). After viewing the conditions he 

complained to Mr. Datson, and made no attempts to do any welding due 

to the conditions which were present (Tr. 503), and he was concerned 

that the entire 200 and 201 tunnel areas were a fire hazard (Tr. 505). 

700 
Findings and Conclusions 

These civil penalty proceedings were instituted by MSHA against both 

named respondents pursuant to section llO(c) of the Act, which provides as 

follows: 

Whenever a corporate operator violates a mandatory 

health or safety standard or knowingly violates or fails 

or refuses to comply with any order issued under this 

Act or any order incorporated in a final decision issued 

under this Act, except an order incorporated in a decision 

issued under subsection (a) or section 1Q5(c), any director, 

officer, or agent of such corporation who knowingly 

authorized, order, or carried out such violation, failure, 

or refusal shall be subject to the same civil penalties, 

fines, and imprisonment that may be imposed upon a person 

under subsections (a) and (d) (emphasis added). 

An "agent" is defined in Section 3(e) of the Act .(30 U.S.C. § 820(e)) 

to mean "any person charged with responsibility for the operation of 

all or part of a coal mine or other mine or the supervision of the miners 

in a coal mine or other mine." 

In order for civil penalties to be assessed against the named 

respondents, MSHA must first establish that the violations which have 

been cited and charged against the respondents in fact took place, and 

that the respondents "knowingty authorized, ordered or carried out such 

violation(s)". In these cases, both respondents are charged with violations 

of mandatory safety standards 30 CFR 57.20-3, 57.20-9, and 57.17-1, which 

provide as follows: 

57.20-3 Mandatory. At all mining operations: 

(a) Workplaces, passageways, storerooms, and service 

rooms shall be kept clean and orderly. (b) The floor 

of every workplace shall be maintained in a clean and, 

so far as possible, a dry condition. Where wet processes are used drainage shall be maintained, and 

false floors, platforms, mats, or other dry standing 

places shall be provided where practicable. (c) 

Every floor, working place, and passageway shall be 

kept free from protruding nails, splinters, holes, 

or loose boards, as practicable. 

57.20-9 Mandatory. Dusts suspected of being 

explosive shall be tested for explosibility. If 

tests prove positive, appropriate control measures 

shall be taken. 

57.17-1 Mandatory. Illumination sufficient 

to provide safe working conditions shall be provided 

in and on all surface structures, paths, walkways, 

stairways, switch panels, loading and dumping sites, 

and working areas. 

701 
The interpretation and application of the term "knowingly" as used 

in both the 1969 and 1977 Acts has been the subject of litigation and 

interpretation by the Commission. In MSHA v. Kenny Richardson, EARB 78-600-P, 

a case arising under section 109(c) of the 1969 law, the Commission, in 

its decision of January 19, 1981, held that the term "knowingly" means 

"knowing or having reason to know". The Commission rejected the respondent's 

assertion that the term requires a showing of actual knowledge and 

willfulnesson the part of the respondent to violate a mandatory standard. 

Further, the Commission adopted the following test as set forth in U.S. 

v. Sweet Briar, Inc., 92 F. Supp. 777 (D.S.C. 1950), to section 109(c) 

of the 1969 Act: 

'(K]nowingly,' as used in the Act, does not have any 

meaning of batl faith or evil purpose or criminal intent. 

Its meaning is rather that used in contract law, where 

it means knowing or having reason to know. A person has 

reason to know when he has such information as would lead 

a person exercising reasonable care to acquire knowledge 

of the fact in question or to infer its existence. 

In Richardson, the Commission held that the aforesaid interpretation 

of the term "knowingly" was consistent with both the statutory language 

and the remedial intent of the 1969 Coal Act, and expressly stated that 

"if a person in a position to protect employee safety and health fails 

to act on the basis of information that gives him knowledge or reason 

to know of the existence of a violative condition, he has acted knowingly 

and in a manner contrary to the remedial nature of the statute." On 

February 24, 1981, the Commission issued its decision in a second section 

109(c) case and following its rationale in the Richardson case, reaffirmed 

its "knowingly" test; ~: MSHA v. Everett Propst and Robert Stemple, 

MORG 76-28-P. 

In its post-hearing brief, petitioner argues that the respondents 

kn·owingly authorized, ordered, or carried out the corporate violations 

of mandatory standards 57.20-3 and 57.20-9, within the meaning and scope 

of the Richardson case, supra. In support of this conclusion, petitioner 

asserts that both respondents knew or had reason to know about the 

accumulations of coal and coal dust in the cited areas at the start of 

Respondent Vanderpool's shift on November 12, 1979. However, rather than 

seeing to it that the accumulations were cleaned up, petitioner argues 

that respondents decided to run coal during the shift, knowing that, 

with the belt running, said accumulations would get worse, and that they 

used the lighting problems as an "excuse" for not sending men into the 

area to clean up. Further, petitioner argues that both respondents knew 

or had reason to know that the accumulations were a tripping hazard and 

an imminent fire hazard, and that in view of the extensive accumulations 

present in the cited areas knew or had reason to know that proper control 

measures were not being maintained to control a potential coal dust 

explosion which could have been ignited by a fire. Since both respondents 

were in a position of authority, petitioner maintains that they had the 

responsibility to abate the continuance of the violative conditions, and 

that their failure to take proper corrective action to abate the cited 

conditions establishes that they knowingly violated the cited standards. 

702 
Although respondents' post-hearing brief does not address the issue 

of the "Corporate Operator Violations" as any condition precedent to the 

filing of charges against individual agents, petitioner points out that 

Allied Chemical has already paid a civil penalty for each of the subject 

violations. Citing the Richardson decision, petitioner asserts that due 

process does not require a determination of the corporate mine operator's 

violation in a proceeding separate from or prior to a section llO(c) 

proceeding involving an agent. Further, petitioner cites additional case 

precedents holding that a mine operator is absolutely liable for a 

violation occurring at its mine regardless of fault, and that an agentts 

violation is' imputable to the mine operator under the Act. 

Fact of violations 

30 CFR 57.17-1 - Illumination 

By motion filed simultaneously with its brief, petitioner moves to 

dismiss the charges against both respondents regarding the alleged violations 

of mandatory safety standard section 57.17-1 on the ground that the evidence 

adduced at the hearing does not support the conclusion that respondents 

knowingly authorized, ordered, or carried out the violation. The motion is 

GRANTED, and this charge IS DISMISSED as to both named respondents. 

30 CFR 57.20-3 

Section 57.20-3 requires that all workplaces and passageways be kept 

clean and orderly, and that the floors in such areas be kept clean and, 

so far as possible, dry. It seems clear to me that the coal tunnel load-out 

areas in question are "working places" within the meaning of the standard. 

After the coal is unloaded, it is transported along a network of tunnels 

on conveyor belts for storage and subsequent use as fuel for the boilers 

at the plant, and maintenance and other work requiring the presence of 

men and materials takes place in those tunnel areas. 

The "conditions or practices" referred to on the face of the citation 

issued by Inspector Ferrin makes reference to mandatory standards 57.20-3 

and 57.20-9, and they are bracketed together. After describing the conditions 

concerning the coal and coal dust which "had spilled from the area conveyor 

belt", the inspector concludes that "this created an imminent fire hazard". 

There is nothing in the citation to suggest that the inspector was concerned 

with a tripping or slipping hazard for failure to keep the tunnel floors 

free and clear of coal and coal dust accumulations. However, in his 

deposition taken November 30, 1981, Mr. Ferrin testified that in addition 

to a fire hazard, he considered the accumulations he found to be a hazard 

to personnel entering the area "on a possibly slick or occluded or blocked 

stairway" and that they presented "a possible slip and fall" injury. In 

his inspector's "narrative statement" made at or near the time he issued 

the citation, Mr. Ferrin's noted concern is with a possible "slip or fall" 

incident. At the hearing, he conceded that any citation for a violation 

of section 57.20-9 would "normally" be issued for "housekeeping" situations 

for failure to maintain workplace floors free and clean of coal accumulations 

which presented "slip and fall" possibilities. However, he maintained that 

703 
aside from any "housekeeping" concerns, at the time he issued the citation 

he was concerned with a "possible disaster" and that it was prompted him 

to issue the imminent danger order of withdrawal. In short, while Mr. Ferrin 

separated the conditions he found into three specific violations, it seems 

clear to me that his overall concerns centered on the fact that he believed 

that all of the conditions he observed, taken as a whole, presented a 

situation which he obviously believed amounted to an imminent danger 

calling for a withdrawal order isolating the area until it could be cleaned 

up. 

Aside from the question as to whether the conditions cited presented 

an "explosion" hazard, I believe it is clear from the record in this 

case that the reason Mr. Ferrin cited a violation of section 57.20-3, 

was his belief that the accumulations presented a slipping and falling hazard, 

that someone could possibly trip on the accumulations while attempting to 

make their way along the beltway and possible catch their hand or clothing 

in the moving belt, and that the accumulations would contribute to the 

propagation or spread of a. fire in the event one occurred. I conclude 

that the preponderance of the evidence adduced in this case supports a 

conclusion that this is the principal reason why he included a reference 

.to section 57.20-3 in his order. Further, there is a strong inference 

in this case that since the Part 57 health and safety standards contain 

no specific provision for the clean up of coal and coal dust accumulations which 

may occur in a metal and nonmetallic mine, similar to the mandatory standards 

applicable to coal mines, the inspector did the best that he could by relying 

on a so-called "housekeeping" provision to cover such a situation. 

In their post-hearing brief, respondents do not dispute the existence 

of the coal spillage and accumulations cited by Mr. Ferrin, nor do they 

dispute the fact that a hazard existed. Their defense to the citation of a 

violation of section 57.20-3, rests on an assertion that respondents 

could not send employees into the tunnels to clean without lights, "especially 

with the conditions as bad as they were", and that they decided not to 

risk unnecessary injury and opted to run coal until such time as the lighting 

problem could be corrected. Given these circumstances, and relying on 

Secretary of Labor v. Alabama By-Products Corp., SE 80-121, 2 MSHRC 1399 

(1981), respondents argue that sending men into the tunnel areas to clean 

up without sufficient illumination would have endangered them further. In 

these circumstances, they suggest that this fact is a defense to the citation, 

and by sending men into the area to clean with insufficient illumination 

would have subjected the respondents to violations of section 57.17-1, which 

requires sufficient illumination to provide safe working conditions in 

loading, dumping and work areas. As for the suggestion by petitioner 

that flashlights and cap lamps could have been used to facilitate clean-up, 

respondents rejects this notion out of hand, and quite frankly, I agree 

with this position. I fail to understand how MSHA can expect a miner 

to shovel and clean an area while holding a flashlight in his hand. Further, 

I fail to comprehend how this could be accomplished efficiently and safely 

simply with the illumination from a cap lamp. I believe that the illumination 

requirements of section 57.17-1, are intended for just such chores, and 

if fully complied with, should provide the full measure of illumination 

for cleaning up coal accumulations along a belt line. 
Respondent~ concede, in hindsight, that they should have barricaded 

the area and taken care of the accumulations problems. They also concede 

that they were aware of the conditions of the tunnel and the need for 

it to be cleaned. They nonetheless assert that they "wisely" elected not 

to risk injury to men cleaning the tunnel in the dark. Of course, what 

they do not concede is that this course of action would have resulted in 

an interruption to the coal handling production run requiring that the belt 

system be shut down. In my view, had the decision been made to shut 

down the belt and immediately correct the illumination problem, the coal 

accumulations could have been cleaned up, the problem would have been 

resolved, and the possibility of subjecting miners to hazards of cleaning 

up in the dark would never have been presented. 

After careful consideration of all of the evidence adduced in this 

case, I conclude and find that petitioner has the better part of the argument 

with regard to the alleged violation of section 57.20-3. Respondents 

reliance on the Alabama By-Products Corp., supra, holding as an absolute defense 

is rejected. I find that petitioner has established by a preponderance 

of the evidence presented that the accumulations of coal and coal dust 

cited by the inspector constitutes a violation of section 57.20-3, 

in that the tunnel floor was not clean, that respondents knew or had 

reason to know that the conditions existed, and that their failure to take 

corrective action in the circumstances constituted a knowing violation. The 

citation, insofar as this violation is concerned, IS AFFIRMED. 

30 CFR 57.20-9 Explosive dust 

Section 57.20-9, requires that appropriate control measures be taken 

in the event explosive dusts are encountered in the mine. The language 

of the standard requires that (1) dusts suspected of being explosive be 

tested. Once tested, if they prove positive, then appropriate control 

measures must be taken. Aside from the ventilation and radiation requirements 

found in Part 57, I can find nothing in the standards which specifically 

address the "appropriate control measures" required to be taken when 

accumulations of coal or coal dust are encountered in a coal handling facility 

such as the one in question. Although petitioner argues that coal dust 

is one of the many dusts covered by section 57.20-9, (Brief pg. 21), that 

conclusion is based on the inspector's testimony that "dust is dust" 

(Tr. 40). In any event, it seems clear to me that petitioner's position 

is that the corrective action that should have been taken b.Y the respondents 

was the cessation of production and the clean-up of the accumulations. 

Respondents Arguments 

In their post~hearing brief, respondents argue that any evidence 

concerning any explosive conditions in the tunnel area in question should 

be excluded because the Order issued by Inspector Ferrin makes no reference 

to any explosion hazard and is limited to an alleged fire hazard. Further, 

respondents point out that in his depos:ition taken prior to hearing, Mr. Ferrin 

testified that any float coal dust which may have been present at the time 

705 
of his inspection was not an explosive hazard. Respondentsmaintain that 

the Order issued by the inspector as well as the pleadings led them to 

believe that the issue presented was whether or not the coal accumulations 

were a fire hazard (not an explosive hazard) in the tunnel. They contend 

that not until after the deposition of Mr. Ferrin, and in fact at the hearing, 

were they informed that Mr. Ferrin was concerned with the possibility of 

an explosion in the tunnel, and they maintain that their mistaken belief 

in. this regard is demonstrated in their Answers to the charges where they 

deny the existence of a fire hazard, and make no reference to explosive 

conditions. 

Respondents argue further that were they appraised of the concern 

of an explosive hazard, they could have conducted and produced tests 

of the environment in the tunnel. However, because of the failure of 

MSHA and the Order issued by Mr. Ferrin to appraise them of the true conditions 

which gave rise to the Order, respondents maintain they were barred from 

fully developing a defense. Accordingly, respondents assert that MSHA 

should have been excluded from producing any evidence as to explosion 

potential in the tunnels, and if that evidence is excluded, MSHA will not 

.have proved a violation of section 57.20-9. 

Aside from their due-process and lack of notice defense, respondents 

maintain that petitioner simply has not established by a preponderance 

of any credible evidence or testimony that an explosion hazard existed 

in the 200 tunnel. In support of this conclusion, respondents point 

to the fact that MSHA did not sample the subject coal or coal dust which 

was actually in the tunnel to determine if the dust was explosive, and 

that Mr. Ferrin stated he did not need to take any samples because he 

basically knew what the explosivility of the coal was, based upon a test 

which had been conducted previously. Respondents also point out that 

Mr. Ferrin's knowledge as to the explosibility of the coal accumulations 

is based on a letter dated January 8, 1976, which refers to explosive 

coal conditions at the coal stock pile at Allied (as opposed to the 200 

tunnel), and a group of documents, one of which is an Analysis of Dust 

Samples prepared in March of 1979 (exhibits P-5 and P-6). 

With regard to the aforementioned documents, respondentsassert that no 

weight should be afforded to these exhibits because the letter (P-5) was 

prepared three years before the subject Order, and concerned dusty coal 

conditions at the transfer points at the storage pile. Accordingly, the 

document is not material to the conditions which existed in the 200 tunnel 

on November 12, 1979. 

As to the Analysis, respondents assert that it was issued in connection 

with Citations No. 336487 and 336488. (Part of Ex. No. P-6). Citation 

336488 concerns coal at the transfer house, which is not in the same 

area as the tunnels. (Tr. p. 392). Citation No. 336487 concerns coal 

and fuel oil accumulation in the sump in the 201 tunnel. Respondents 

argue that the sample of coal which was taken for the Analysis is not 

identified by Mr. Ferrin, nor does the record in fact show that the coal 

or coal conditions were the same. Although Mr. Ferrin testified it was 

the same coal, respondents maintain this conclusion is based upon the 

706 
speculative belief that the coal was from the same mine. (Tr. p. 45). 

However, nowhere in the record does Mr. Ferrin demonstrate or lay the 

foundation for his conclusion that the coal was the same. Furthermore, 

since Mr. Ferrin testified that the coal could have come from two 

different mine locations of the same company (Tr. p. 21), which contradicts his testimony that the coal was from the same mine, respondents 

conclude that he clearly did not know where the prior sample was 

obtained or whether the coal in the 200 tunnel was the same as the coal 

subject to the Analysis. 

With regard to the Analysis in question, respondents point out 

that there is no evidence of any nature which shows what it means, either 

in the abstract or in relationship to the specific environment in the 200 

tunnel. Conceding that coal dust is explosive, respondents nonetheless 

maintain that it is so only in the proper environment, and the fact that 

the Analysis stated the coal tested in the past was 17.1% incombustible, 

there is no evidence that the environment in the 200 tunnel was in fact 

explosive. If it was not, then there was no violation of the cited standard 

because "appropriate controls" would have been achieved. 

Petitioner's arguments 

In response to respondents arguments concerning any lack of notice 

regarding Inspector Ferrin's concern for an explosive hazard connected 

with the coal accumulations which he observed, petitioner notes that since 

he cited section 57.20-9 it is obvious that this was one of his concerns 

because that safety standard deals exclusively with a dust explosive 

hazard. Conceding the fact that the order issued by Mr. Ferrin makes no 

mention of an explosion hazard, and that his testimony and prior statements 

indicated his concern for a fire hazard, petitioner cites his testimony 

during the hearing which indicates that while his primary concern was the 

possibility of a fire, his secondary concern was the potential for an 

explosion (Tr. 119-120; 135-136). Petitioner concludes from this that 

Mr. Ferrin believed the fire hazard was imminent and that the coal dust 

explosion hazard was potentially there because of the fire hazard. 

Petitioner concludes further that since it is well known that coal dust 

will enter into and propagate an explosion when placed in suspension, 

the specific reference to the fire hazard in Inspector Ferrin's order of 

withdrawal was in effect an implicit reference to the coal dust explosive 

hazard since a fire could have served as a definite ignition source for 

a potential coal dust. explosion. 

Petitioner asserts that Allied Chemical obviously had no problem with 

the specificity of the charges since it paid the civil penalty for the 

violation of 57.20-9, and that respondents had to be aware of this 

fact. Finally, petitioner points out that the proposal for assessment 

of civil penalty specifically charges the respondents with violations of 

section 57.20-9, and since this standard deals exclusively with a dust 

explosive hazard, theywere clearly put on notice as to this charge. 
In response to the arguments that petitioner has failed to 

establish that any explosive hazard existed in the cited tunnel, petitioner 

states that "it has long been well known in the mining industry that coal 

dust will enter into and propagate an explosion when placed in suspension". 

In support of this conclusion petitioner cites the legislative history 

of the 1969 Coal Act, which states in pertinent part as follows: 

Tests, as well as experience, have proved 

that inadequately inerted coal dust, loose 

coal, and any combustible material when 

placed in suspension will enter into and 

propogate an explosion. The presence of 

such coal dust and loose coal must be kept 

to a minimum through a regular program of 

cleaning up such dust and coal . • • • Tests 

and experience have shown that an incombustible 

content of 65% is necessary to prevent dust 

from entering into an explosion (with the 

exception of anthracite coal dust, which will 

not propogate an explosion when dispersed in 

the air due to its low volatile ratio). [S. 

Rep. 91-141, 65-66; Legis. Hist. at 191-192]. 

Petitioner concedes that MSHA took no samples of the coal dust in 

the tunnel loadout area at the time the order of November 12, 1979, 

was issued. In explanation, petitioner states that a previous test taken 

of the same coal source in March 1979 to support two previous citations 

for violations of section 57.20-9, showed that the tested coal dust was 

combustible and explosive and Inspector Ferrin believed it would have been 

superflous to conduct another test on November 12 for the purposes of 

section 57.20-9. 

With regard to the coal sample of March 1979, petitioner maintains 

that it was not even necessqry to have taken that sample because everyone 

knows that coal dust placed in suspension will propagate an explosion. 

Further, petitioner states that coal dust is one of the many dusts covered 

by section 57.20-9 and because of the iong standing tests and experiments 

·Q)nducted on this type of dust, no new specific tests were necessary to 

determine·the explosibility of the coal dust in the coal loadout area 

of the Alchem Trona Mine. In this connection, petitioner points out that 

Inspector Ferrin testified that the only reason that the Green River, 

Wyoming Office of MSHA's Metal/Nonmetal Mine Division took a coal dust 

sample from the coal loadout area and had it tested in March 1979, 

was to familiarize their inspectors with the combustibility arid explosibility 

of coal dust since the 1977 Act was relatively new to the MSHA metal/nonmetal 

mine inspectors. Otherwise, it is not and was not normal practice for 

MSHA to test coal dust in a coal handling facility of a trona mine for 

the purposes of 30 CFR § 57.20~9. 

708 
Lack of adequate notice 

While it may be true that prior to the hearing in this case Inspector 

Ferrin failed to specifically articulate his concern for any explosive 

hazard connected with the coal accumulations which he cited, I conclude and 

find that on the facts presented here respondents have not been prejudiced. 

As correctly argued by the petitioner both the order and proposal for 

assessment of civil penalty filed in this case make specific reference to 

section 57.20-9, and if respondents had any doubts in this regard they 

could have been resolved through the discovery process by means of a 

specific interrogatory. I agree with respondents assertion that Inspector 

Ferrin's pretrial deposition reflects no direct concern about any explosive 

hazard and that the matter was initially brought up at the hearing by 

petitioner's counsel as part of his case. Leaving aside for the_moment 

the question as to whether petitioner has established that the coal dust 

in question was in fact explosive within the meaning of the cited standard, 

I conclude and find that the interjection of the issue as to whether the 

coal dust conditions found by the inspector when he issued the order were 

in fact explosive during the hearing did not adversely affect respondents 

ability to defend themselves. If the evidence adduced supports a conclusion 

that the coal accumulations were explosive, petitioner will prevail on 

this issue. If they do not, then the respondents will. Further, I can 

deal with any credibility questions which may arise as a result of this 

issue. Since the petitioner bears the burden of proof in this case, it 

also bears the risk of raising issues for the first time at a hearing 

two years after the fact. 

Explosibility of the coal dust accumulations. 

I take note of the fact that the withdrawal order issued by Inspector 

Ferrin was based on the fact that he believed that all of the conditions 

which he observed on November 12, 1979, in combination presented a situation 

which constituted an imminent danger. In addition, when viewed in 

perspective, and taking into account the prior problems concerning the 

diesel oil spill, prior dust problems at the coal transfer point, prior 

union complaints concerning failure to clean up coal accumulations, all 

of which are a matter of record in this case, I am persuaded that Mr. Ferrin 

was not oblivious to all of these prior events at the time he issued the 

order. This is not to say that an imminent danger did not exist. However, 

this is an issue that Allied Chemical could have challenged in a contest 

proceeding pursuant to section 107(a) of the Act. The question of any 

imminent danger is separate and apart from the question of whether MSHA 

can establish the specific violations noted in this civil penalty proceeding. 

In this regard, faced with the prospect of either proving or defending 

each alleged violation at an evidentiary hearing held two years after the 

fact, counsel for both sides are prone to indulge in what I have often 

characterized as "back-filling" to support their respective positions. 

Petitioner's assertion that the March 1979 coal sampling and test 

made at the coal handling facility in question was for the purpose of 

familiarizing metal and nonmetal mine inspectors with the combustibility 

and explosivility of coal dust is simply without foundation. The sample 

analysis (exhibit P-6) on its face states that it was taken to substantiate 

709 
the two citations for violations of section 57.20-9. Therefore, while 

it may be true that MSHA's normal practice is not to test coal dust in a 

coal handling facility of a trona mine for the purpose of section 57.20-9,. 

it seems obvious to me that in this case the March 1979 sample was taken 

to specifically establish violations of this particular mandatory standard. 

Further, it is also obvious to me that once a sample of coal dust is 

tested at this facility, MSHA believes they may rely on that particular 

sample, not only to establish that the coal dust is explosive, but to 

support citations for any violations of section 57.20-9 at any time. 

I take official notice of a 1976 publication apparently used at 

MSHA's National Mine Health and Safety Academy during the training of 

its inspectors, Volume I, Work Book, Coal Dust, NMHSA-CE-009. Page 11 

of that instructional booklet contains a discussion dealing with the 

explosive nature of coal dust, and it highlights the fact that explosiveness 

depends upon several factors which are itemized as follows: 

1. The size of the dust particles. 

2. The composition of the dust (how much of 

the dust is coal dust). 

3. The amount of gas (including both oxygen 

and combustible gas) in the air. 

4. The source of ignition. 

5. The concentration of dust. 

6. Surrounding conditions. 

In the case at hand, it is cl.ear that no one sampled the coal dust 

accumulations in the 200 tunnel on the day'the order issued, even though 

the standard clearly states that samples are to be taken of "suspected" 

explosive dusts. Inspector Ferrin confirmed that prior to the inspection 

in question he had never inspected a coal mine (deposi~ion, pg. 18). 

His knowledge concerning the explosive nature of coal dust was based on 

his belief that its "fairly common knowledge throughout the population", 

a course at MSHA's training academy, and a review of an MSHA report 

concerning the coal used by Allied Chemical (deposition, pg. 18). 

Inspector Ferrin confirmed that the coal handling facility in question 

is not underground, is not part of any "gassy" portion of the mine, and the 

fact that the mine itself may be classified as "gassy", this did not 

concern the coal handling facility (Tr. 116-117). He also confirmed 

that he tested for methane in the cited tunnel area at the time of the 

inspection and found no methane present. 

With regard to the presence of diesel fuel in the tunnel, Mr. Ferrin 

conceded that this has been a long-standing problem in the area and Allied 

Chemical and MSHA were jointly addressing the problem and that this problem 

was not his principal concern at the time the order issued. As for the 

presence of any "float" coal dust, Mr. Ferrin described it as "airborne" 

dust, and testified in his deposition that while this condition presented 

a fire hazard, he did not believe that it presented an explosion hazard. 

Although Mr. Ferrin made references to several inoperable dust 

collecting devices, he conceded that he made no determination as to where 

they may have been located in the area. And, while he alluded to several 

710 
dry floor areas, he also conceded that some of the coal accumulations 

were wet and that the tunnel area in general was wet and damp. Mr. Vanderpool testified that when he inspected the tunnel area he found a dustcollecing device turned off, but he had it turned back on, and although 

he testified that he did not know whether the fire deluge system was 

on or off during the period November 10 through 12, 1979, petitioner 

introduced no credible testimony or evidence to establish that this system 

was not operating during the time of Mr. Ferrin's inspection. Further, 

Mr. Miller testified that the steam and moisture present in the tunnel area 

contributed to keeping the coal accumulations moist and wet. Mr. Ferrin's 

concern that a drop in temperature in the tunnel area could have resulted 

in the stairways freezing due to the moisture and steam which was present, 

thus added to any tripping or slipping hazard, supports a conclusion that 

the conditions in the tunnel area where the coal accumulations were found 

were far frqm dry. 

When asked whether a potential explosion hazard was present, Inspector 

Ferrin answered "if we had an ignition source, yes sir" (Tr. 71). 

Although he alluded to the presence of several potential ignition ignition 

sources, it seems clear to me from the record that Inspector Ferrin 

made no detailed examination of such sources and his cursory conclusions 

in this regard as tesfieid to during the hearing reflect a subjective 

after-the-fact attempt to justify a conclusion that the coal dust accumulations, 

as well as the 200 tunnel environment, presented an explosion hazard. For 

example, although Mr. Ferrin states that the problems with the illumination 

in the tunnel were due to a "faulty" electrical circuit, characterized 

by petitioner's counsel as a source of ignition, Mr. Ferrin admitted 

that he did not trace the circuit out, nor did he make any attempt to 

ascertain what the problem was. When asked to describe the presence of 

any ignition possibility with regard to the purported faulty circuit, 

he responded that he didn't "trouble shoot" (Tr. 89) and "I didn't take 

the time to finish tracing out, because of the imminency of this situation" 

(Tr. 71). As for the presence of "various and sundry electric lines" lying 

on the floors in adjacent tunnels leading into the 200 tunnel, Mr. Ferrin 

testified that they were not bushed or properly supported and in the event 

they bec.ame damaged this could have created an ignition source. 

Among the documents of record (exhibit P-2), are copies of additional 

section 104(a) citations issued at the time of the inspection of November 12, 

1979. Citation 0575919 was for a violation of section 57.12-38, for 

a defective take-up reel for a trailing cable on a tripper car. Citation 0575920 

was for a violation of section 57.11-1, for two hoses or wires lying on a 

walkway along the 201 tunnel. Citation 337399 was for a violation of 

section 57.20-3, for accumulations of coal dust at the 201 belt tail pulley. 

Citation 337398 was for a violation of 57.4-10 for an inadequately insulated 

cable passing through an opening in the 201 belt pit area. Aside from 

the fact that the citations reflect that they were issued after the withdrawal order in question, in each of the instances cited the "conditions or 

practices" noted in the citations reflect fire or tripping hazards. 

711 
I have carefully considered the testimony of maintenance mechanic 

Douglas Malone and Terral J. Smith and cannot conclude from their testimony 

that it supports a finding the the prevailing conditions in the cited tunnel 

area constituted an explosion hazard. I am mindfull of Mr. Malone's concern 

for his safety and recognize his right to withdraw from the area and not 

to do any work in an area which he considered to be hazardous. However, 

there is no evidence in this case that the named respondents in this 

proceeding authorized Mr. Malone to do any work in the cited areas or 

that Mr. Malone had a work permit to do the welding work in question. 

Mr. Malone's testi~ony is that shift foreman Youngbird dispatched him 

to the area to perform some work. However, upon observing the conditions 

present, Mr. Malone left the area and reported the ·conditions to Mr. Youngbird, 

and Mr. Malone admitted on cross-examination that he had no permit to 

perform any welding work in the 200 tunnel area, that he went there "to look" 

and not to weld, that any welding work would have required a permit from 

Mr. Vanderpool, and that any concern that he may have had was the possibility 

of a fire. 

With regard to Mr. Smith's testimony, I find nothing to support a 

conclusion that the coal accumulations presented any explosion hazard. I 

recognize Mr. Smith's concern for the health and safety of the miners who 

he represents as President of the local, and I also recognize his concern 

over the accumulations and conditions in the tunnel in question on the 

day the order issued. I also take note of the fact that Mr. Smith indicated 

that he had visited the tunnel. area on four occasions during the period 

June 1 and November 1979, and believed that the tunnel should be cleaned 

on a daily basis -so as to preclude the build-up of accumulations. However, 

this is a matter that Mr. Smith is free to continue to pursue with the 

MSHA's inspectors who are assigned to inspect the mine in question. 

He is also free to continue to pursue with mine management any compliance 

problems connected with any safety standards found in MSHA's regulations, 

including a review of the procedures dealing with the issuance of work 

permits, as well as the question of miners performing unauthorized work 

in hazardous areas of the mine. 

After a close scrutiny of Mr. Ferrin's testimony, the only credible 

ignition source which may have been present in the 200 tunnel were the belt 

idlers running in the coal accumulations. There is no evidence that 

the belt rollers or idlers were defective or-hot. Although I can accept 

the notion that belt idlers running in accumulations of coal present a 

potential fire hazard, the question presented here is whether such a condition 

constituted an explosion hazard. Based on the record in this case, I find 

respondent has the better part of the argument, and I conclude and find 

that petitioner has failed to establish by a preponderance of any credible 

evidence that the conditions which prevailed at the time the order issued 

presented an explosive hazard in the cited 200 tunnel area, and that portion 

of the citation-order which alleges a violation of section 57.20-9 IS 

VACATED. 

I believe that MSHA should seriously consider amending Part 57 to 

specifically and directly deal with hazardous accumulations of coal and 

coal dust at a surface coal handling facility which is part of a metal 

and nonmetallic mine. Only in this way will an inspector be able to 

effectively and consistently deal with such problems in those mines. In 

the case at hand I am convinced that Inspector Ferrin honestly believed 

712 
that, faced with the cumulative conditions which he observed in the tunnel 

on the day in question, swift action on his part required the issuance 

of an imminent danger withdrawal order. I am also convinced that Mr. Ferrin 

was .not oblivious to the fact that miners had complained about the tunnel 

conditions in the past, that the diesel fuel spill was a long-standing 

problem being worked on collectively by MSHA and the mine operator, and 

that his very presence at the mine on the day in question resulted from 

a complaint filed by the representative of miners. Given these circumstances, 

Mr. Ferrin cited certain available safety standards which he believed 

addressed the perceived problems. However, faced with the prospect of 

proving the specific cited standards at a hearing ~ years after they 

were issued in a civil penalty proceeding brought by MSHA against two 

individual respondents, the inspector is exposed to much second-guessing 

by counsel for the parties, and I might add, by the presiding Judge. 

The instant case is not the first time that an inspector has cited 

the so-called "housekeeping" section 57.20-3 to support a conclusion that 

accumulations of coal and coal dust present a fire hazard as well as a 

"slip and fall" hazard. As indicated earlier I have affirmed that portion 

of the order which cited this standard. However, with regard to the citation 

of section 57.20-9, I hold MSHA to strict proof of the specific language 

of this standard, and this includes the requirement that MSHA sample the 

coal and coal dust accumulations to establish with some degree of certainty 

that they are in fact explosive. On the record adduced in this case I 

reject the notion that such tests are simply made to assist in the training 

of inspectors who are unfamiliar with the nature of coal and coal dust. 

In my view, the fault lies not with the inspector, but with standards 

which all too often leave much to the imagination, and leave the inspector 

in the untenable position of trying to decide which standard comes "close 

to" a given situation. 

Civil Penalty Assessment 

I am in agreement with the petitioner's position that the following 

criteria should be considered in assessing a civil penalty against the 

two named respondents in this case for the section 57.20-3 violation which 

I have affirmed: (1) his history of previous violations under the Act,. 

(2) his negligence, (3) the gravity of the violation, (4) his effort to 

abate the violation after the citation, and (5) his financial ability to 

pay a civil penalty. This complies in substance with section llO(i) 

of the Act, 30 U.S.C. 820(i). Daniel Hensler, 5 IBMA 115, 121 (1975). 

A § llO(c) respondent's financial ability to pay is the equivalent of 

the two civil penalty criteria under § llO(i) of the Act of the mine 

operator's size of business and its ability to continue in business. 

History of Prior Violations 

It was stipulated at the hearing that neither of the respondents herein 

has a prior record of individual violations under the Act. (Tr. 113-114). 

I adopt this as my finding in this regard and have taken it into account 

in assessing the penalties for this violation. 

713 
Gravity 

I conclude and find that the accumulations of coal and coal dust 

cited by the inspector in this case constituted a serious violation. In 

addition to a possible fire hazard, the accumulations along the belt line 

and at or near the stairway where there was little or no illumination 

presented a serious tripping or slipping hazard, particularly in light of 

the proximity of the accumulatio_ns near a moving belt line. 

Good Faith Compliance 

As correctly pointed out by the petitioner, Inspector-Ferrin testified 

that both respondents participated in the abatement of the violation in 

question, and that their efforts in this regard were "very adequate after 

the fact," i.e., after Inspector Ferrin had issued his imminent danger order 

of withdrawal citing said violation. (Tr. 102-103). This fact has been taken 

into account by me in assessing civil penalties for the violation. 

Respondent's Ability to Pay Civil Penalties 

Petitioner submits that in view of the annual salaries of respondents 

Miller and Vanderpool of $50,000 and $34,500, respectively, both have the 

ability to withstand a substantial civil penalty in these proceedings, 

Miller more so than Vanderpool. I agree with the petitioner in this regard 

and conclude that the civil penalties assessed by me for the violation 

which I have affirmed will not adversely or unduly affect the respondents 

finaicially. Taking into account the circumstances presented in these 

proceedings, I conclude further that the penalties are reasonable and 

appropriate. 

Negligence 

Petitioner argues that both respondents were grossly negligent in allowing 

the violation in question. Further, petitioner submits that that this 

negligence was exacerbated by the fact that despite the dangerous accumulation 

of coal and coal dust which was building up in the cited areas, neither 

respondent took action to barricade or danger off the area to prevent 

persons from wandering into the area. Moreover, petitioner asserts that 

both respondents were specifically aware that electricians were scheduled 

to work on the lighting problem in the 200 and 201 belt tunnels 

during Mr. Vanderpool's shift and that both respondents had reason to 

know that welders might be working on the steam leak at the intersection 

of the two tunnels. 

Respondents do not dispute that fact that they were aware of the 

conditions cited by the insector, nor do they dispute the fact that they 

probably should have barricaded the area to keep everyone out. Although 

it is true that there is no evidence to indicate that they were aware that 

welders were sent to the area in question and that the fact that the 

welders did not have a work permit remains unrebutted by the petitioner, 

the fact is that both respondents were aware of the existence of hazardous 

accumulations of coal and coal dust, discussed the conditions between 

shifts, but opted to continue running coal rather than shutting down the 

belt line and correcting the immediate and obvious coal accumulations which 

were present. In these circumstances, I conclude and find that this 

714 
constitutes a reckless disregard of the mandatory safety standard in 

question. Under the circumstances, I find that the violation is the result 

of gross negligence on the part of both respondents and this is reflected 

in the civil penalties assessed by me for the violation 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 

that the following civil penalty assessments are reasonable and appropriate 

for the citation which I have affirmed, and respondents ARE ORDERED to 

pay the assessed penalties within thirty (30) days .of the date of this 

decision and order. 

Docket No. WEST 81-244-M 

Respondent J. D. Miller 

$800 for violation of 30 CFR 57.20-3 

Docket No. WEST 81-245-M 

Respond.ent Wilbur Vanderpool 

$500 for violation of 30 CFR 57.20-3 

' L/ d-·- --·-

~Koutras ~ .~ 

Administrative Law Judge 

Distribution: 

J. Philip Smith, Esq., ·U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, Suite 1600, 

50 S. Main St., Salt Lake City, UT 84144 (Certified Mail) 

715 
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, Complaint of Discharge, 

MINE SAFETY AND HEALTH Discrimination, or Interference 

ADMINISTRATION (MSHA), 

On.behalf of 

BOBBY GOOSLIN, 

Docket No. KENT 80-145-D 

Calloway No. 1 Mine 

Complainant 

v. 

KENTUCKY CARBON CORPORATION, 

Respondent 

ORDER APPROVING SETTLEMENT AGREEMENT 

AND DISMISSING PROCEEDING 

This proceeding was remanded by the Commission to determine the 

monetary relief to which Complainant Bobby Gooslin is entitled because 

of his discriminatory discharge by Respondent. Following an order to 

the parties issued on February 5, 1982, a joint motion was filed by 

the Secretary, Bobby Gooslin and Respondent to dismiss the proceeding 

and approve a settlement. Respondent has agreed to pay Mr. Gooslin the 

sum of $10,000 in full settlement of his claim to back pay, interest and 

other monetary benefits arising from his discharge on October 1, 1979. 

Mr. Gooslin was represented in this proceeding by Mary Lu Jordan, Esq., 

Attorney for the United Mine Workers of America, who represents that she 

explained the nature and amount of the settlement and that he agreed 

to accept the same. Each party agreed to bear its own fees and expenses. 

Having duly considered the matter, I conclude that the settlement 

is in Mr. Gooslin's best interest and should be approved. 

Therefore, IT IS ORDERED that the settlement agreement filed herein 

on April 15, 1982, is APPROVED. 

IT IS FURTHER ORDERED that subject to the payment by Respondent to 

Bobby Gooslin of $10,000 this proceeding is DISMISSED with prejudice. 

Zl1tHL~ v~V~4t-e4_ r James A. Broderick '-----

Administrative Law Judge 

716 
Distribution: By certified mail 

William F. Taylor, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

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

N.W., Washington, DC 20005 

W. Timothy Pohl, Esq., Kentucky Carbon Corporation, Suite 1300, 

One Valley Square, Charleston, WV 25301 

C. Lynch Christian, III, Esq., Jackson, Kelly, Holt & O'Farrell, 

P.O. Box 55?, Charleston, WV 25322 

Timothy Biddle, Esq., Crowell & Moring, 1100 Connecticut Ave., N.W., 

Washington, DC 20036 

717 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

) 

APR 211982 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), ) CIVIL PENALTY PROCEEDING 

) 

Petitioner, 

v. 

DiCAMILLO BROTHERS MINING COMPANY, 

A Corporation 

Respondent. 

) DOCKET NO. WEST 81-210-M 

) 

) MSHA CASE No. 05-02730-05002 FFG5 

) 

) Mine: Cross Mine 

) 

) ~~~~~~~~~~~~~~~~~~~~ 

Appearances: 

Phyllis K. Caldwell, Esq., Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 

For the Petitioner 

John R. Henderson, Esq., Vranesh, Raisch and Aron 

2120 13th Street, P.O. Box 871, Boulder, Colorado 80306 

For the Respondent 

Before: John A. Carlson, Judge 

DECISION 

This civil penalty case arose out of a fatal accident at the Cross 

Mine near Nederland, Colorado on September 19, 1980. The Secretary of 

Labor, in three citations, charges that respondent violated mandatory 

safety standards relating to ventilation practices. He also alleges that 

the violations were "significant and substantial" and seeks a civil penalty 

of $3,000 for each citation. Respondent resisted the Secretary's petition, 

and the issues were tried under the Federal Mine Safety and Health Act of 

1977 (30 U.S.C. § 801 ~ ~' the "Act") in Denver, Colorado beginning on 

January 27, 1982. Counsel agreed to submit no post-hearing briefs. 

REVIEW AND DISCUSSION OF 

THE EVIDENCE 

The undisputed evidence shows that at the time of the accident and the 

Secretary's subsequent investigation the Cross Mine was operated by a 

closely-held family corporation, Dicamillo Brothers Mining Company. This 

company, whose principals are David, Henry, Paul, and Jay Dicamillo, worked 

the mine under an operating contract with Tom Hendricks, who in turn leased 

it from out-of-state owners. 

718 
This small underground gold and silver mine was first worked in the 

late Ninteenth .Century and was reopened by Hendricks in 1974. Dicamillo 

Brothers took over active operation under a series of short-term contracts 

beginning in 1979. At one time or another ore had been mined from four 

separate drift levels. The deepest of these was level four, some 200 feet 

below the surface. A two-compartment shaft, encompassing ladderways and a 

skip hoist, reached all levels. 

In September, 1980, the DiCamillos and their crews were actively 

mining the third and fourth levels. Prior to the summer of 1980 the mine 

had no mechanical ventilation system. Natural surface winds moving over 

the raise were believed sufficient to ventilate the mine. Before regular 

work began in the fourth level drift, however, a fan capable of moving air 

at 12,000 cubic feet per minute was installed to provide adequate 

ventilation at all active workplaces within the mL1e. As a part of this 

new system, the DiCamillos (or Henderson) instailed air doors at various 

strategic locations to insure the proper flows of intake and return air, 

and to prevent dissipation or short circuiting of flows. 

On September 19, 1980, David Dicamillo removed the plywood air door 

which blocked off the large mined-out drift at level two. He did so to 

show a prospective employee where he proposed to drive a new raise to the 

tunnel level above. Dicamillo did not replace the door when he left. 

Sometime between 7:00 and 7:30 a.m., two miners, Jerry Miller and Paul 

Ouellet, had descended to the fourth level to begin to pull ore shot the 

previous night. Eventually, David and Henry Dicamillo learned that the 

hoistman had brought up no muck from the fourth level, checked, and found 

that both Miller and Ouellet were unconscious in the skip. The rescuers 

were able to revive Ouellet, but Miller was dead. The parties stipulate 

that Miller died and Ouellet was rendered unconscious because of exposure 

to excessive levels of carbon monoxide. The DiCamillos closed down the 

mine as soon as the victims were removed. 

We now consider the individual citations. 

Citation No. 333981 

This citation, coupled at the time of issuance with a withdrawal 

order, charges that Dicamillo Brothers violated the mandatory standard 

published at 30 CFR § 57.5-5. As pertinent here, that standard provides: 

Control of employee exposure to harmful airborne 

contaminants shall be, insofar as feasible, by 

prevention of contamination, removal by exhaust 

ventilation, or by dilution with uncontaminated 

air. [The remainder of the standard governs the 

use of respirators where engineering controls of 

contamination have not been developed, or in other 

special circumstances not present in this case.]. 

71!) 
The specific threshold limit values for contaminants are set out in 30 CFR 

§ 57.5-1, which adopts by reference the exposure limits set out in the 1973 

edition of the American Conference of Governmental Industrial Hygienists 

publication "TLV' s Threshold Limit Values for Chemical Substances in 

Workroom Air." 

Inspector Edward Machesky, acting on behalf of the Secretary, descended to the fourth level in the early afternoon on the day of the 

accident and took a number of air samples in the area where the two victims 

had been sent to work. His innnediate readings, and subsequent laboratory 

analyses of sea.led samples, showed carbon monoxide concentrations of 

between 550 and 600 parts per million. The air appeared quite clear 

despite these potentially lethal concentrations, and tested normal for 

oxygen and methane. 

On September 22, 1980, James Atwood, a supervisory mine inspector for 

the Secretary, used a smoke tube to test for air flow at the fourth level. 

With the second level air door down, and the fan running, he found no 

perceptible air movement in the fourth level. During this inspector's 

visit David Dicamillo nailed the door back in place. Inspector Atwood 

concluded that removal of the door had "short circuited" the ventilation 

flow, depriving the fourth level of moving air. 

This conclusion was ratified by William Bruce, Chief of the 

Ventilation Division at the Denver Safety and Health Technology Center of 

the Mine Safety and Health Administration, who made a ventilation study at 

the mine on September 24, 1980. Mr. Bruce, a graduate mining engineer with 

ten years of specialization in ventilation, measured the fourth level air 

flow at 1,400 cubic feet per minute with the second level door in place. 

Such a flow, he testified, was "minimal" for miner safety. 

Respondent did not seriously dispute any of these findings. It also 

agreed with the Secretary's witnesses that carbon monoxide is one of the 

gases released by blasting; and that the muck pile created by the blast the 

night before the accident was the only possible source for the carbon 

monoxide which caused the death of Jerry Miller. 

Uncontested evidence adduced by respondent's witnesses shows that 

Miller and Ouellet had loaded charges in both sides of the fourth level 

drift on the day before the accident. This "slab" round was not detonated 

at the end of their shift, however, because Paul Dicamillo, the brother in 

charge of the entire Cross Mine operation, was working a crew on the third 

level and wished no blasting below until his shift ended at 11:00 p.m. At 

that time he discharged the round so that the gases would have cleared and 

Miller and Ouellet could begin mucking at 7:00 the next morning. 

In their defense, the DiCamillos first contend that at the time of the 

accident they were wholly without knowledge of any factors which could 

account for the excess buildup of carbon monoxide. Thus, they argue, they 

cannot reasonably be held responsible under the Act for violation of the 

mandatory airborne contaminant control standard. 

720 
Before exam1n1ng the particulars of this defense, I should observe 

that an absence of operator negligence is not a defense to a charge of 

violation of a mandatory safety stand~rd unless the standard itself 

dt~clares it so. United States Steel Corp., 1 FMSHRC 1306 (1979); El Paso 

Rock Quarries, Inc., 3 FMSHRC 35 (1981). 

The full sense of 57.5-5 is gained by reading it with its sister 

standards, particularly 57.5-1 and 57.5-2. In 57.5-1 the Secretary 

requires absolute adherence to the limits of exposure set out in the 1973 

tables of the American Conference of Governmental Industrial Hygienists. 

The only exception is under 57.5-5 itself where removal by ventilation or 

dilution by,uncontaminated air is not feasible from an engineering 

standpoint. In that instance respirators may be used. In this case, of 

course, no one suggests that that exception came into play. The pertinent 

Hygienists' publication establishes the threshold limit value for carbon 

monoxide at 50 parts per million. Because of the extremely high 

concentrations measured by Inspector Machesky, however, the more relevant 

figure in this case is the 15 minute "excursion limit" of 400 parts per 

million. Jj The readings obtained on the afternoon of September 19, 

1980, coupled with the fate of Miller and Ouellet, demonstrate conclusively 

that this excursion value was exceeded. The absolute obligation of the 

mine operator to insure that contamination limits are not exceeded is 

underscored in 57.5-2, which provides: 

Dust, gas, mist and fume surveys shall be conducted 

as frequently as necessary to determine the adequacy 

of control measures. (Emphasis added.) 

I therefore hold that respondent violated the cited standard. 

Operator negligence is relevant, though, on the issue of appropriate 

penalty. Respondent's argument of lack of fault has many facets. Central 

however, is a claim that the principal means of removing contaminants from 

the fourth level was compressed air, not the mechanical ventilating system. 

Undisputed evidence does show that after every blast the resulting muck 

pile was flushed with compressed air supplied through a central system. On 

the fourth level the air hose was attached to the mucking machine. Paul 

Dicamillo testified that after shooting the fourth level round on the night 

of September 18, he turned on the fourth level compressed air and that it 

remained on throughout the night. Respondent maintains that even with the 

1/ See "Threshold Limit Values for Chemical Substances in Workroom Air 

Adopted by ACGIH for 1973," page 51. 

·721 
central ventilation short circuited on the morning of the 19th, the 

combination of compressed air and the large flows of fan-driven air during 

the night should have cleared any accumulations of carbon nonoxide many 

times over. According to. respondent's witnesses, universal practice in 

such mines is to wait no longer than 45 minutes after a blast before 

re-entering the area. 

Respondent's witnesses also emphasized their belief that the compressed air flushing process should have adequately cleared the air of 

contaminants whether or not the fan system was working at all. Frequent 

references were made to the fact that until a year before the accident the 

entire mine had operated successfully with no fan system (Tr. 180, 205, 

232). 

Finally, Henry Dicamillo asserted at one point that Miller himself was 

responsible for the accident because he failed to turn on the compressed 

air valve on the morning of the accident (Tr. 173). 

For these reasons the DiCamillos suggest, in essence, that the hazard 

on the fourth level was unforeseen and unforeseeable. I agree that it was 

in fact unforeseen, but not that it was unforeseeable. On the contrary, 

respondent's evidence showed a clear recognition that mechanical 

ventilation was necessary before mining was begun on the fourth level (Tr. 

190). It follows that any known interruptions of fan-induced air flows 

through the fourth level drift should have alerted the operator to possible 

danger. David Dicamillo, who removed the air door, granted that he knew 

removal of the door would "slow down" the flow (Tr. 35). Paul Dicamillo 

conceded that "any prudent operator" would have known that removing the 

door would have short circuited the fourth level air (Tr. 182). 

There is a patent inconsistency, of course, in admitting the necessity 

for a fan to insure safety at the fourth level, while maintaining that fan 

ventilation was superfluous because of the availability of compressed air. 

The compressed air argument is further weakened by the testimony of William 

Bruce, the Secretary's ventilation expert, who denied that compressed air 

alone should have been relied upon for adequate ventilation under the 

circumstances present in respondent's mine. Compressed air, he asserted, 

was not "meant to provide the primary source of ventilation" (Tr. 120). 

According to Bruce, when a muck pile is present it provides a continuing 

source for carbon monoxide; disturbing the pile through mucking can 

stimulate the release of the contaminants; and compressed air can free 

carbon monoxide from a muck pile but will not necessarily vent it from the 

drift as would a steady flow of intake and return air from a fan (Tr. 113, 

119-129). I find this testimony credible. 

Nor can the operator's neglect be shifted to the dead and injured 

miners on the theory that they ignored established procedures by failure to 

turn on the compressed air valve. There is some confusion as the whether 

the valve was on or off when Miller and Ouellet were brought to the surface 

(Tr. 240-241). That the valve may have been off, however, shows no 

departure from accepted practice in the mine. Toward the end of the 

722 
hearing Henry Dicamillo acknowledged that had Miller and Ouellet found the 

air on when they arrived in the drift (after it was presumably on all 

night) they would have been following policy to turn it off before 

proceeding into the drift. 

Upon the entire record, then, I conclude that there was significant 

operator neglect. I also conclude that the character and consequences of 

the violation show it to be "significant and substantial" as that term is 

used in Section 104(d) and 104(e) of the Act. Cement Division, National 

Gypsum Co., 3 FMSHRC 822 (1981). 

Aside from the elements of neglect and the gravity of the violation, 

evidence as to the remainder of the statutory penalty criteria J:../ tends 

to favor respondent. The gravity, of course, was high, as illustrated by 

the fatal results. It is undisputed, however, that the DiCamillos showed 

good faith in rapid abatement (Tr. 10). The mine was small, having never 

employed more than 18 miners. Of particular significance is the fiscal 

condition of the Dicamillo corporation. The four brothers formed it with 

the expe.ctation of working several mines on a contract basis. It has few 

physical assets (Tr. 224), and at the time of hearing held approximately 

$900 in its corporate account (Tr. 224). David Dicamillo was "off the 

payroll" and working for another employer because of the corporation's lack 

of funds (Tr. 243-244). The Cross Mine, where the violation occurred, was 

closed on December 21, 1981 (Tr. 192), and the Dicamillo corporation has no 

other current contracts (Tr. 227). 

Owing to the virtual collapse of the corporation, I cannot in good 

conscience assess the $3,000 penalty which the Secretary seeks. On the 

other hand, I cannot pass off this essentially grave violation with a token 

penalty. To do so would be to signal all financially distressed operators 

that safety short-cuts may be undertaken without fear of hurtful sanctions 

under the Act. (One must also recognize that an operating company which 

owns no minerals in place and few physical assets may be formed with 

minimum capital and may operate successfully over long periods without 

accumulating any substantial net worth. Choice of this mechanism for 

conducting business cannot serve as an absolute shield against penalty 

under the Act.) 

2/ Section llO(i) of the Act requires the Conunission, in penalty 

assessments, to consider the size of the operator's business, its 

negligence, its ability to continue in business, the gravity of the 

violation, and the operator's good faith in seeking rapid compliance. 

723 
Giving due consideration to all the penalty criteria, I conclude that a 

civil penalty of $1,500 is warranted to deter future violations. That sum 

is therefore assessed. 

Citation No. 333581 

The Secretary bases this citation upon the same facts as those in 

citation no. 333981, but alleges violation of a different mandatory 

standard. As modified before the hearing, the citation claims respondent 

violated 30 CFR § 57.5-28, which reads: 

Unventilated areas shall be sealed, or barricaded 

and posted against entry. 

The Secretary argues that the standard applies because the DiCamillos 

did not immediately evacuate miners from the fourth level 1/ and seal 

it off when David Dicamillo interrupted the ventilation by removing the 

second level door. 4/ 

Counsel for respondent protests that this citing of a second standard 

for the very acts or omissions which serve as the foundation for another 

charge is unfair. He brands it an attempt to multiply civil penalties by 

citing the same underlying facts twice. 

The Commission considered a similar argument in El Paso Rock Quarries, 

Inc., 3 FMSHRC 35, 40 (1981), and held that the Act ."imposes a duty on 

operators to comply with all mandatory safety and health standards", and 

permits no escape from liability "simply because the operator violated a 

different, but related mandatory standard." 

I have difficulty with the cited standard, however, simply because I 

believe it is misapplied under the circumstances of this case. All 

standards must be construed in the light of the drafter's intent. Here, 

the cited standard must be read in association with the other standards in 

30 CFR § 20, all of which deal with requirements for a comprehensive 

ventilation plan and system. Those standards recognize that in most mines, 

the plan will provide no ventilation for certain areas which are mined out 

or not frequented for other reasons. Thus, for example, 57.5-20(b)(2) 

provides that maps shall show " [ 1 ]ocat ion of seals used to isolate 

abandoned workings." I read the standard cited in this instance, when requiring "unventilated areas to be sealed barricaded or posted against 

entry," to comtemplate those areas which were intended under the operator's 

plan to be unventilated. I do not read it to embrace those areas which are 

3/ The Secretary did not see fit to charge this violation with respect to 

level two where the ventilation door was actually removed. 

4/ After the two carbon monoxide victims were discovered, of course, 

~iners were forbidden to enter the fourth level by management, and shortly 

thereafter a formal withdrawal order was issued by the MSHA inspector. 
ventilated, but where ventilation is somehow interrupted on an unplanned 

basis due either to mechanical failure or human error. Most particularly, 

I do not read it to require that the barricading, sealing, or posting be 

done before ·the operator has actual knowledge of the failure, whatever its 

cause. Where an unplanned failure of ventilation occurs, one would expect 

that the operator, upon learning of it, would withdraw miners until air 

flows were restored. That is what occurred here. The DiCamillos closed 

the entire mine upon discovery of the accident, and that action was 

formalized by the inspector later in the day by issuance of what appears to 

be a mine-wide withdrawal order. In summary, I do not understand the 

Secretary to contend· that respondent was obliged to comply with 57.5-28 

after the mine was closed; and I do not understand the standard to require 

posting, sealing or barricading before respondent had actual knowledge of a 

ventilation failure. Consequently, no violation is found. The petition 

proposing penalty is vacated. 

Citation No. 567048 

This citation relates specifically to the air or ventilation door 

which David Dicamillo removed at the second level. It charges that the 

door "was not substantially constructed, nor was it maintained in good 

condition as required in 30 CFR § 5-31." The pertinent portion of the 

standard provides: 

Ventilation doors shall be: 

(a) Substantially constructed. 

(b) Covered of fire retardant material 

if constructed of wood. 

(c) Maintained in good condition. 

(d) Self-closing, if manually operated. 

The undisputed evidence shows that the operators had made the door of 

plywood with no attempt to apply any fire retardant. Hence, a violation of 

the cited standard is clear. Witnesses for the Secretary also maintained 

without contradiction that the door, which did not conform well to the 

irregular shape of the bulkhead, was haphazardly held in place by a few 

common nails. I agree that this condition, too, violated the 

standard. lJ 

5/ At trial, counsel for the Secretary also suggested violation occurred 

because the door was not self-closing. I note the citation speaks to no 

such defect. No basis exists for permitting an amendment under Rule 15(b) 

of the Federal Rules of Civil Procedure since I cannot find that the issue 

was tried by consent. The character of the door was obvious from the time 

of inspection, and the Secretary had ample time to amend before trial. 

With notice, respondent may well have been able to prepare a defense 

concerning, for example, the lack of need for a self-closing door leading 

to a seldom-used area. 

725 
Counsel for the respondent notes that door construction defects were 

not the proximate cause of the accident. This is so, but no causal connection to an accident is necessary to establish violation of a mandatory 

standard. I do agree that the door defects were considerably less grave 

than the removal of the door. Also, on the record presented, I am.unable 

to conclude that the "violation is of such a nature as could significantly 

and substantially contribute to the cause and effect of a coal or other 

mine safety and health hazard" under sections 104(d) and 104(e) of the Act. 

In Cement Division, National Gypsum Co. (supra) the Commission held that 

such a conclusion must be based upon a "reasonable likelihood that the 

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

serious nature·." The cited door violations were not shown to have 

contributed to the ventilation failure on the fourth level; ventilation 

ceased because of the complete removal of the door. One may infer that the 

insubstantial construction, haphazard mounting, and lack of fireproofing of 

the door would be dangerous in the event of a fire or explosion in the 

mine. No evidence was given, however, as to the likelihood, reasonable or 

otherwise, of such events in this particular metals mine. Without such 

evidence, a finding of "significant and substantial" cannot be made. 

Giving consideration to all the penalty factors discussed in 

connection with citation 333981, I conclude that $100 is an appropriate 

penalty for the defects. 

CONCLUSIONS OF LAW 

Based upon the findings incorporated in the narrative portion of this 

decision, the following conclusions of law are made: 

(I) Respondent violated the mandatory standard published at 30 CFR 

§ 57.5-5 as alleged in citation 333981. 

(2) The violation was "significant and substantial" within the 

meaning of the Act. 

(3) The appropriate penalty for the violation is $1,500. 

(4) Respondent did not violate the mandatory standard published at 30 

CFR § 57.5-28 as charged in citation 333581. 

(5) Respondent violated the mandatory standard published at 30 CFR 

§ 5-31 as charged in citation 567048. 

(6) The violation was not proved "significant and substantial" within 

the meaning of the Act. 

(7) The appropriate penalty for the violation is $100. 

726 
ORDER 

Accordingly, it is ORDERED that: 

(1) Citation 333981 is affirmed and a civil penalty of $1,500 is 

assessed. 

(2) Citation 333581 1s vacated together with the penalty proposed 1n 

connection therewith. 

(3) Cit'ation 567048 is affirmed and a civil penalty of $100 1s 

assessed. 

(4) The total penalties of $1,600 shall be paid within 30 days of the 

date of this decision. 

Distribution: 

Phyllis K. Caldwell, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

·John R. Henderson, Esq. 

Vranesh, Raisch and Aron 

2120 13th Street 

P.O. Box 871 

Boulder, Colorado 80306 

Judge 

727 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

APR 2 71982 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) CIVIL PENALTY PROCEEDINGS 

) 

Petitioner, ) DOCKET NO. CENT 80-66-M 

) A/O No. 13-00183-05002 F 

v. ) 

) DOCKET NO. CENT 80-199-M 

RAID QUARRIES, DIVISION OF MEDUSA ) A/O No. 13-00183-05003 A 

AGGREGATES COMPANY, ) 

Respondent ) DOCKET NO. CENT 80-200-M 

and ) A/O No. 13-00183-05004 A 

JAMES ANDERSON, ) 

Respondent ) DOCKET NO. CENT 80-378-M 

and ) A/O No. 13-00183-05006 A 

ROBERT ORR, ) 

Respondent. ) MINE: Heinold Quarry 

) 

DECISION 

Appearances: · 

J. Philip Smith, Esq. 

Office of _the Solicitor, United States Department of Labor 

4015 Wilson Boulevard, Arlington, Virginia 22203 

Gene R. Krekel, Esq. 

P .o. Box 1105 

For the Petitioner 

200 Jefferson, Burlington, Iowa 52601 

For the Respondent 

Before: Judge Virgil E._Vail 

STATEMENT OF THE CASE 

The above four cases, which were consolidated for hearing, involve 

alleged violations of section llO(a) and llO(c), respectively, of the 

728 
Federal Mine Safety and Health Act of 1977 (the Act), 30 U.S.C. 820(a) and 

820(c)(Supp. III, 1979). J1 

Docket No. CENT 80-66-M involves a petition by the Secretary of Labor, 

(Secretary), under section llO(a) of the Act, for assessment of civil 

penalties against Raid Quarries, a division of Medusa Aggregates Company, 

(Medusa) for alleged violations of mandatory safety standards 30 C.F.R. 

§ 56.9-22 and 56.9-2. 1:./ 

Docket Nos. CENT 80-199-M and CENT 80-200-M involves petitions by the 

Secretary under sec·tion llO(c) of the Act, for assessment of civil 

penalties against James Anderson, (Anderson), superintendent of the Heinold 

Quarry for Medusa, with knowingly authorizing, ordering, or carrying out, 

violations of 30 C.F.R. § 56.9-22 and 56.9-2. 

Docket No. CENT 80-378-M, involves a petition by the Secretary under 

section llO(c) of the Act, for assessment of a civil penalty against Robert 

Orr, as vice president and general manager of Raid Quarries, a division of 

Medusa, with knowingly authorizing, ordering or carrying out violation of 

30 C.F.R. § 56.9-22. 

A hearing was held in Burlington, Iowa, where all parties were 

represented by counsel. Post hearing briefs were filed. 

At the conclusion of the hearing, petitioner moved to dismiss the 

petition against respondent Robert Orr (Docket No. CENT 80-378-M) due to 

1/ Section llO(a) of the Act provides as follows: "The operator of a coal 

or other mine in which a violation occurs of a mandatory health or safety 

standard or who violates any other provision of this Act, shall be assessed 

a civil penalty by the Secretary which penalty shall not be more than 

$10,000 for each such violation. E_ach occurrence of a violation of a 

mandatory health or safety standard may constitute a separate offense." 

Section llO(c) of the Act provides as follows: "Whenever a corporate 

operator violates a mandatory health or safety standard or knowingly 

violates or fails or refuses to comply with any order issued under this Act 

or any order incorporated in a final decision issued under this Act, except 

an order incorporated in a decision issued under subsection (a) or section 

105(c), any director, officer, or agent of such corporation who knowingly 

authorized, ordered, or carried out such violation, failure, or refusal 

shall be subject to the same civil penalties, fines, and imprisonment that 

may be imposed upon a person under subsections (a) and (d)." 

Y 30 CFR § 56. 9-22 provides as follows: "Berms or guards shall be 

provided on the outer bank of elevated roadways." 

30 CFR § 56. 9-2 provides as follows: "Equipment defects affecting 

safety shall be corrected before the equipment is used." 

729 
insufficient. evidence to prove this case. The petitioner's motion is 

hereby AFFIRMED. 

STIPULATION 

The parties stipulated to the following: 

1. Raid Quarries, a division of Medusa Aggregates Company, and the 

mine, Heinold Quarry, is engaged in an activity covered under the Federal 

Mine Safety and Health Act of 1977. 

2. James Anderson and Robert Orr were employees of Raid Quarries, a 

division of Medusa Aggregates Company. 

3. Medusa Aggregates Company is a large mine operator under the Act. 

4. That if the penalties proposed were assessed against Medusa 

Aggregates Company, it would not be forced to go out of business. 

5. Medusa Aggregates Company is a corporate entity. 

6. In the event violations are found in Docket No. CENT 80-66-M the 

previous history of violations of respondent Medusa is such that it should 

neither increase nor decrease the civil penalties. 

ISSUES 

1. Whether respondent Medusa violated 30 CFR § 56.9-22 and 56.9-2 as 

the corporate mine operator, and, if so, the appropriate amount of civil 

penalty which should be assessed against it for each such violation 

pursuant to section llO(a) of the Act? 

2. Whether respondent James Anderson knowingly authorized, ordered, 

or carried out the aforesaid violations as an agent of the.corporate 

operator, and, if so, the appropriate amount of civil penalty which should 

be assessed against him individually for each such violation pursuant to 

section llO(c) of the Act? 

FINDINGS OF FACT 

1. On May 21, 1979, a fatal accident occurred at the Heinold Quarry 

owned and operated by Raid Quarries, a division of Medusa Aggregates 

Company. 

2. Heinold Quarry is a limestone mine located in Danville, Des Moines 

County, Iowa. 

3. Respondent Medusa is a large mine operator under the Act, 

presently owning and operating some 31 mines. 

4. Respondent James Anderson was superintendent of the J. Plant for 

Raid Quarries division of Medusa at the Heinold Quarry at all pertinent 

730 
times herein. As superintendent he had approximately 16 to 17 miners and 

the equipment used at the quarry under his supervision. Anderson has 

considerable experience in the operation and maintenance of heavy equipment including the Michigan Clark 275B end loader involved in the accident 

which occurred on May 21, 1979. 

5. Heinold Quarry was reopened for production with the J Plant, a 

portable plant, arriving about April 30, 1979. After the machinery for the 

plant was set up, work was started on widening and resurfacing the haul 

road. This road had been used in 1978 but had suffered damage cau~ed by 

heavy rains to the surface. 

6. Material used for widening and resurfacing the haul road was 

secured from a stockpile left over from the prior year and waste material 

from the mining process commenced in 1979. The mining process involved 

first removing eleven feet of merchantable stone exposing five feet of 

shale which was considered waste and to be used on the haul road. The road 

had been widened to provide two lanes of travel for a distance of 

approximately 175 feet during the week prior to May 21, 1979. In widening 

the road, the surface had been built up approximately 12 to 18 inches. 

This eliminated the berm that had existed on this haul road during the 

previous year. 

7. There was production of merchantable material from Heinold Quarry 

during the week prior to May 21, 1979. During this period of time, the 

haul road was also being widened and resurfaced. Respondent Anderson 

intended to build a berm on the outer edge of the road when it was 

completed which was estimated would take two weeks. 

8. On May 15, 1979, respondent Anderson, while performing maintenance 

on the Michigan Clark 275B end loader, discovered that the right rear brake 

cam shaft was broken. Anderson unhooked the airline to the brake chamber 

and blocked off the line (Tr. 244 and 277). Greg Hensley was generally 

assigned to operate the 275B end loader, and used the machine for three 

days after the broken airline was plugged (Tr. 245). Replacement parts 

were ordered for this machine on May 15, 1979 (Tr. 277). 

9. On May 21, 1979, Steven Knotts, age 19, reported to the Heinold 

Quarry to begin his regular work as an end loader operator. He was 

assigned to operate the 275B end load which was not the machine he usually 

ran. He usually operated the Caterpillar 980 which was similar to the 

27SB. Knotts initially operated the 275B end loader in the lower pit 

loading haul units. Respondent Anderson operated the end loader on May 

21, 1979 to show Knotts how to use this machine on decline mucking (Tr. 

279, 280). At approximately 4:30 p.m., Knotts drove the machine to the 

maintenance area of the quarry for greasing and fuel (Tr. 287). Knotts was 

to work an additional two hour shift after normal production hours on 

removing shale and rebuilding the haul road (Tr. 287). 

10. Upon leaving the maintenance area Knotts drove the 275B end 

loader through the stockpile area, made a right turn to go down a ramp for 

731 
a distance of approximately 225 feet where he made a 90 degree turn on the 

main ramp or haul road. Knotts proceeded to travel down this haulage road 

approximately 110 feet when the end loader made a 35 degree turn to the 

right going over an embankment. The end loader traveled 80 feet down the 

bank from the edge of the haul road to its resting place. Knotts was 

thrown from the end loader and covered with loose material and expired due 

to asphyxiation. 

11. ·The Michigan Clark Model 275B front-end loader involved in this 

fatal accident was equipped with a 7-cubic-yard capacity bucket and had 

tire protection chains on all four wheels. It was also equipped with 

seatbelts and a rollover protection type cab and weighed approximately 

90,000 pounds gross weight with all of the above equipment installed. The 

brakes were four-wheel straight air, shoe type. 

12. The haul road was 20 feet wide at the point where the accident 

occurred with approximately a ten percent grade. Weather was warm and 

visibility good at the time. 

DISCUSSION 

DOCKET NO. CENT 80-66-M 

As a result of an investigation of the .fatal accident occurring on May 

21, 1979, two citations were i.ssued to respondent Medusa. Citation No. 

178555 charged a violation of mandatory safety standard 30 C.F.R. § 56.9-22 

and stated as follows: 

A berm was not installed along the outer edge 

of the elevated haulages road for approximately 

100 feet south and 50 feet north of the point 

where the end loader went over the edge. The 

absence of a berm could have been a contributing 

factor to the fatal accident. 

Order No. 178558 cited a violation of the mandatory safety standard 

30 C.F.R. § 56.9-2 and stated as follows: 

During the safety inspection of the Michigan end 

loader, Model 275~ Serial No. 425C485, that was 

involved in the fatal accident on May 21, 1979, 

it was discovered that the right rear brake shaft 

was broken, the brake air line unhooked and plugged 

by Jim Anderson, superintendent. 

Petitioner argues that the absence of a berm on the haul road had 

existed for several weeks prior to the accident and that during this time 

the road had been used for production purposes. 11 

Respondent argues that an adequate berm had been present on this 

haul road prior to April 30, 1979, but the height of the berm was decreased 

11 Petitioner's Brief, page 14. 

732 
when the surface of the road was filled in and widened upon opening the 

quarry in 1979. Also, respondent argues that a berm did exist on May 21, 

1979 which would restrain a vehicle traveling on the haul road and that 

further construction on said berm was to be part of rebuilding this road 

which was to be completed within two weeks. !!./ _ 

After careful consideration of the arguments presented by the parties, 

and particularly the facts presented in this case, I conclude that 

petitioner's position is correct and that respondent's arguments must be 

rejected. 2_/ A preponderance of the evidence including a visual 

examination of the photographs taken on May 23, 1979, ~}:iows- an absence of 

sufficient.material to constitute a berm at the point on the ~oad where the 

end loader went over the embankment (Exhibits P7 thru Pl2). MSHA inspector 

Lyle K. Marti testified that upon his arrival at the accident scene, he 

observed that the haul road ran from the plant area at_the south end of the 

quarry down a 9 to 10 percent grade for approximately 220 feet where the 

end loader went over the embankment. For a distance of 50 feet to the 

south and 100 feet to the north, there was some material approximately 

eight to twelve inches high which he did not consider would constitute any 

berm whatsoever (Tr. 32, 38 and 122). Inspector Doyle Fink testified that 

no berm existed at the location where the end loader went over the embankment due to fill material being used to build up the road surface (Tr. 

348). 

The respondent's argument that the material existing on 

the haul road constitutes an adequate berm must be rejected. 

defined in 30 C.F.R. § 56.2 as follows: 

"Berm" means a pile or mound of ·material capable 

of restraining a vehicle. 

the edge of 

A berm is 

Respondent did not contend, and rightly ~o, that the material along the 

outer edge of the haul road would restrain. or prevent the end loader from 

going over the edge of the embankment. However, respondent proposes that 

because the roadway was under construction and repair, a berm was not 

required. I reject this argument for the reason that the_ haul road was 

being used on a daily basis for production of ~aterial from the quarry and 

had been so used for_ a period of time prior to the fatal accident. 

The intent of the mandatory safety stand 56.9-22 is to provide 

protection for men and equipment when required to travel along elevated 

roadways while performing work connected with the mining process. I find 

the respondent knew that the berm was not adequate. The evidence shows 

4/ Respondent's Brief, page 12. 

5/ I am aware of and considered the Judge's decision in Secretary of 

Labor, (MSHA) v. United States Steel Corp., KENT 81-136 (February 26, 1982) 

and I disagree with the decision he reached regarding the berm standard 

56.9-22. 
that superintendent Anderson had intended to use waste material from the 

production of marketable material at the quarry to repair and widen the 

haul road and that such work on the road would be done after the regular 

production of the day·was concluded. That was what Knotts was on his way 

to do on the day of the accident. After the accident, respondent hired a 

contractor to finish the work on the haul road and install an adequate berm 

which took only three and a half days to complete (Tr. 304). 

As to Order No. 178558, respondent admits that the right rear brake 

shaft was broken and that he plugged the air line on the 275B end loader 

involved in the fatal accident (Tr. 277). However, respondent argues that 

the brakes were adequate and that the end loader was otherwise in good 

mechanical condition. Further, that the evidence does not conclusively 

show that the broken brake shaft and plugged airline contributed in any way 

to the accident. 

I find respondent's arguments unpersuasive. The standard 56.9-2 cited 

in this violation provides that equipment defects affecting safety shall be 

corrected before the equipment is used. The defect in this instance involved the brakes on the 275B end loader which respondent admitted were 

defective. That is, they were not mechanically the same as they were when 

the end loader was designed, manufactured, and sold. The question is 

whether the alterations to the braking system effected the safe use of this 

machine? The applicable law is stated in Ziegler Coal Company, 3 IMBA 336, 

373 (1974) wherein the Interior Board held as follows: 

The presence of defective equipment in a working area 

of a mine is prima facie evidence of the violation of 

the Act; however, such evidence can be rebutted by the 

operator, and where he demonstrated by. a preponderance 

of th·e evidence that the equipment was under repair, and 

had not been used, and was not to be operated until it 

met the required safety standards, no violation of the 

Act has occurred. 

The evidence shows that the end loader was placed in use after the 

brake was disconnected. No argument can be made that the brakes were not 

defective. However, respondent argues that the brakes were adequate. The 

275B end loader with tire chains and additional equipment installed weighed 

approximately 90,000 pounds gross and was operated in the quarry on 

roadways used by other machines· and employees of the respondent. 

Superintendent Anderson who disconnected and plugged the airline to the 

right rear brake testified that he felt the brakes were "adequate' but 

admitted that it would have "some" affect on the safe operation of the end 

loader (Tr. 308-310). I find that the preponderance of the evidence shows 

that the action taken by Anderson in plugging the airline to the right rear 

wheel brake on the end loader would affect its braking capacity and could 

affect safety as a result of its continued use at the quarry. 

734 
STATUTORY CRITERIA 

Section llO(i) of the Act requires that the following criteria be 

considered in the assessment of a civil penalty: 

[t]he operator's history of previous violations, the 

appropriateness of such penalty to the size of the 

business of the operator charged, whether the operator 

was negligent, the effect on the operator's ability 

to continue in business, the gravity of the violation, 

and the demonstrated good faith of the person charged 

in attempting to achieve rapid compliance after 

notification of a violation. 

The parties offe_red stipulations regarding each of these criteria except 

for respondent Medusa's negligence and the gravity of the violation. 

NEGLIGENCE 

As to the violation of 56.9-22, the record shows that respondent 

Medusa failed to install a berm of adequate height on the outer edge of an 

elevated roadway. Further, respondent knew that a berm is required in this 

instance, but contends that the roadway was unfinished and therefore a berm 

could not be permanently installed. 

MSHA inspector Marti testified that a "moving berm" could be used in 

cases such as this but respondent's witness denied knowledge of such a 

berm. Further, respondent argued that the fact that they fully intended to 

install a berm when the road was completed should be considered in 

assessing any penalties in this case. 

The facts show that respondent Medusa had operated the quarry for 

several weeks without a berm on the elevated road, as it was to its 

advantage to resurface and widen the road from waste materials secured 

through the mining process. After the accident, the road was finished and 

the berm was built in a period of three and a half days indicating that 

this could be accomplished in a short period of time. 

The evidence did not show that a lack of a berm was the direct cause 

of the fatal accident involved herein. However, it is reasonable to assume 

that an adequate berm could have stopped or deflected the end loader from 

going over the embankment as the evidence shows that the machine was 

traveling at a slow rate of speed when the accident occurred. 

In view of the above, it is found that respondent Medusa was negligent 

in its failure to comply with the requirements of the standard 56.9-22. 

As to the violation of 56.9-2, the record shows respondent Medusa, 

through its agents and employees, was aware of the defect in the braking 

system of the Michigan 275B end loader. The respondent's employee Greg 

Hensley operated the end loader for three days after the airline had been 

735 
disconnected and plugged and testified the brakes worked satisfactory. 

Anderson tested the brakes and operated the machine after the airline was 

plugged and encountered no loss of braking power. Based upon this, 

respondent contends that the disconnected airline did not affect safety at 

the mine. 

Admittedly, there is no evidence to show that the condition of the 

brakes on the end loader was directly involved in this accident. However, 

the contrary is also true as no evidence was presented by the respondent to 

show that the brakes were not involved in this accident. The facts do 

establish that respondent's employees made temporary repairs on the braking 

system of a large piece of equipment to be used in a quarry on uneven and 

inclined roadways with dangerous embankments. Further, respondent Medusa 

knew or should have known this machine would be operated by other than the 

regular operator, in this case Knotts, who was not experienced with the 

operation of this particular machine. I conclude that this machine with 

less than full braking power c~uld affect safety. 

In view of the above, it is found that respondent Medusa was negligent 

in its failure to comply with the requirements of 56.9-2. 

GRAVITY 

As to the violation of 56.9-22, the petitioner does not allege that 

the accident in this case was caused directly by the lack of a berm. 

However, I am convinced that the lack of an adequate berm at the point on 

the haulage road, where the end loader went over the edge and down the 

embankment resulting in the operators death, points out the results that 

can be anticipated from the failure to comply with the requirements of the 

berm standard. 

As to the violation of 56.9-2, by plugging the airline to one of the 

brakes on the 275B end loader, respondent Medusa could foresee that such 

actions on the part of its employees could affect the safety of the 

operator and other miners in the quarry. Admittedly, Anderson and Hensley 

testified that the end loader's brakes performed satisfactory after the 

airline was disconnected. However, Anderson admitted that the condition of 

the brakes could affect safety. The size of the end loader and the area 

where it was required to be operated requires that it have full performmance of its braking system. Anything less should be foreseen by 

respondent as inviting a possible accident, similar to the type that 

occurred on May 21, 1979. 

Petitioner does not allege that the violation of 56.9-2 directly 

caused the accident involved herein. However, such a result can be 

anticipated from such a violation. 

GOOD FAITH COMPLIANCE 

As to the violation of 56.9-2, abatement was achieved in a timely 

manner by hiring an outside contractor to finish the roadway and install an 

adequate berm. As to the violation of 56.9-22, rapid abatement was 

736 
achieved by obtaining the replacement parts inunediately and installing them 

to bring the end toader to a safe operating condition (Tr. 96). 

The inspector testified and I concur that the respondent exercised 

good faith in achieving rapid compliance in this case. 

PENALTY 

The original proposal for assessment of penalties in Docket No. Cent 

80-66-M was the maximum penalty of $10,000 for violation of 30 C.F.R. 

56.9-22 and $10,000 for violation of 30 C.F.R. 56.9-2. The petitioner 

urges that these penalties be adopted in this case. 2._/ 

Respondent Medusa argues that it was not in violation of the standards 

cited. However, assuming that the violations did occur, the proposal of 

maximum penalties is unreasonable considering the factors required by law 

to be applied in assessing a penalty. 1./ 

As stated before, I have determined that the preponderance of the 

evidence shows that respondent Medusa was in violation of the two mandatory 

safety standards cited. However, I find there are several mitigating 

circumstances that should be considered in arriving at a proper penalty for 

these violations. Although respondent Medusa would be considered a large 

company in this type of business in that it operated 54 active quarries at 

the time of the occurrence, it was agreed to in the stipulation between 

the parties that Medusa had incurred an unimposing number of violations 

which should neither increase or decrease the civil penalty to be imposed. 

Further, Medusa demonstrated good faith in achieving rapid abatement of 

these violations. I find that the above considerations should be given its 

proper weight in fixing the amount of these penalties. The Fifth Circuit 

Court of Appeals considered a similar question in the case of Allied 

Products Company v. Federal Mine Safet and Health Administration Review 

Conunission, Court Docket No. 80-7935, Fed 2d , February 1, 

1982) and opined that the $10,000 civil penalty provided for in 30 U.S.C. § 

820(i) refers to the maximwn that can be assessed for a violation and that 

penalties approaching that amount would be used only in the most severe 

situations. The court went on to state as follows: 

We do not doubt that these violations were serious ones, 

and the death of an employee is always a serious matter. 

The berm and ROPS rules, especially, are designed to 

protect employees regardless of, even in spite of, their 

fault or misconduct •..• ~owever, the law does not authorize 

or suggest that maximum fines are to be imposed whenever 

a fatality occurs. 

6/ Petitioner's Brief, page 21. 

7/ Respondent's Brief, page 15. 

73'1 
In light of the mitigating circumstances referred to above and the 

Court's decision in Allied Products Company, I find that a proper penalty 

for the violation of 30 C.F.R. 56.9-22 is $1,000 and the proper penalty for 

the violation of 30 C.F.R. 56.9-2 is $1,000. 

DOCKET NOS. CENT 80-199-M and CENT 80-200-M 

BACKGROUND 

On February 25, 1980, the Secretary of Labor filed a Petition for 

Assessment of Civil Penalty, pursuant to section llO(c) of the Act against 

James Anderson. The two citations were assigned docket number Cent 

80-199-M and docket number Cent 80-200-M and were combined in one petition 

predicated on the claim that James Anderson (Anderson), acting as the 

statutory agent of the corporate operator, within the meaning and scope of 

section 3(e) and llO(c) of the Act, knowingly authorized, ordered, or 

carried out the corporate operator's violations of 30 C.F.R., section 

56.9-22 cited in citation no. 178555 and section 56.9-2 cited in order no. 

178558. 

DISCUSSION 

Respondent Anderson argues that there was no knowing violation on his 

part of the berm violation contained in citation no. 178555. Respondent 

Anderson contends that, while he was aware of the condition of the haul 

road, it was his belief that a new berm could be built as part of the 

project to resurface and widen the road. He insists he was taking steps to 

make the haul road safer for the miners who were to use it. 

Respondent further contends that he did not knowingly violate the 

mandatory safety standard 56.9-2 as it was his honest belief that after he 

disconnected the right rear brake on the 275B end loader, it had adequate 

brakes and was safe to operate. 

The question here is whether Anderson "knowingly" failed to have a 

berm placed on the outer edge of the elevated haul road and "knowingly" 

placed the 275B end loader back in service after discovering the broken 

brake cam. 

The Review Commission considered the definition of the term 

"knowingly" in the case of Secretary of Labor, Mine Safety and Health 

Administration v. Kenny Richardson, Barb 78-600P, (January 19, 1981) and 

held that the term 11 knowingly11 under this provision means "knowing or 

having reason to know", and stated: 

If a person in a position to protect employees 

safety and health fails to act on the basis of 

information that gives him knowledge or reason 

to know of the existence of a violative condition, 

he has acted knowingly and in a manner contrary 

to the remedial nature of the statute. 

The preponderance of the evidence in this case shows that Anderson 

knew that a berm was required on the elevated road in the mine. He had 

738 
worked as superintendent of a plant for Raid Quarries since 1967 (Tr. 261). 

He was required to hold at least a one-half hour safety meeting every month 

for his employees (Tr. 266). Anderson testified he was responsible for 

resurfacing the haul road as part. of setting up the J Plant at the Heinold 

Quarry when it was opened in April 1979 (Tr. 269). I reject Anderson's 

argument that he thought he could build a berm on the haul road as production at the quarry continued and work could be done on the road using 

waste material that was left over. Anderson had the responsibility to 

protect his employees safety and health and based upon his experience and 

the fact that he taught safety classes, had the knowledge or reason to know 

that the absence of an adequate berm was a violation of the safety 

standard. The fact that the end loader went over the embankment where there 

was not an adequate berm points up to the danger that existed to employee; 

using the elevated haul road during the production of stone. This 

possibility should have been forseen by the respondent based upon his 

experience and knowledge. 

Respondent admits that he discovered the broken brake cam on the 275B 

end loader during his investigation of a complaint by the operator that the 

brakes were not working properly (Tr. 276). He admitted that he disconnected and plugged the airline to the right rear brake fully eliminating 

this one brake out of the four on the machine (Tr. 307). However, he 

argues that the remaining brakes were adequate. He states that he drove 

the machine after disconnecting the brake and did not find it defective 

(Tr. 281). On direct examination respondent testified that when he 

operated the 275B end loader on May 21, 1979, to show Knotts how to run it 

on an incline, there was no problem that affected safety (Tr. 281). 

However, under cross examination, respondent testified in the following 

manner: 

Q. Well, you told us here earlier that you didn't 

have any problem with the brakes at all with the 

condition they were in. I'm curious why you ordered 

the part. 

A. Well, even though I didn't experience a direct 

problem at that time, suppose I had broke another 

one. Then it could catepult into a more serious mess. 

Q. Did you order parts because you knew that the 

machine had lost some of its safety as a result of 

that right-rear brake assembly being completely 

eliminated from this 91,000 pound machine? 

A. I'd have to say, yes. 

Q. Isn't it a true statement, sir, that you wanted 

to keep that machine in production and in use at the 

plant? 

739 
A. Yes. 

Q. That's what I'm asking. It is your statement, sir, 

that the broken cam on the right-rear assembly of the 

Michigan front-end loader, and the plugging of the air 

line, did not affect the safety of that machine at all? 

A. I don't believe I stated that it wouldn't 

affect the safety of the machine at all. 

Q. Do you feel that it did have some effect on 

the safety? 

A. I'm sure it did. 

Q. Do you feel this now in retrospect or did you 

feel this at the time prior to the accident? 

A. Both. (Tr. 310). 

I find the record shows that Anderson failed to remove the end loader 

from service on May 15, 1979, when he discovered the broken brake cam and 

he knew or should have known it was unsafe to operate it in this condition. 

Further, Anderson ordered Knotts to operate the machine on the day of the 

fatal accident when he knew or should have known the machine was unsafe. 

STATUTORY CRITERIA 

Section IIO(c) of the Act regarding the assessment of a civil penalty 

states in part as follows: 

Whenever ••. , any director, officer, or agent of 

such corporation who knowingly authorized, ordered,. 

or carried out such violation ••• shall be subject 

to the same civil penalties, fines, ••• that may be 

imposed upon a person under subsections (a) and (d). 

(Emphasis added). 

Section llO(i) of the Act requires that the same six criteria be 

. applied to the individual as was applied in determining a penalty against 

respondent Medusa. 

NEGLIGENCE 

The preponderance of the evidence shows that respondent Anderson was 

negligent in the acts that constituted the violations of both 56.9-22 and 

740 
56.9-2. He was in charge of both the opening and operating of the Heinold 

Quarry including the repair and construction of the haul road, production, 

employees and equipment. It was his decision that the road be worked on 

while mining and production of material continued. He cut the airline to 

the brake on the 275B end loader and ordered Knotts to operate the machine 

in this defective condition. 

GRAVITY 

The aforementioned action on the part of respondent Anderson was 

serious in nature for it exposed the miners to the possibility of a serious 

injury and even death to employees as occurred to Knotts on May 21, 1979. 

The evidence in this case did not establish a direct cause between the 

lack of a berm on the haul road or faulty brakes on the end loader and the 

subsequent fatal accident. However, a reasonable man can conclude that the 

end loader would have stopped or had its direction changed by an adequate 

berm and that effective brakes may have stopped the machine from going over 

the edge of the embankment. 

The record establishes that respondent Anderson cooperated fully in 

the investigation of the accident, and in the expeditious and rapid good 

faith abatement of these violations. 

ABILITY TO PAY 

Respondent Anderson's gross salary in 1979 was $21,800.00. At the 

time of the hearing his salary was $23,400.00. He supports a wife and six 

children, who presently live with him and pays $400.00 per month in 

support to an ex-wife and one child from a prior marriage. He owns his 

residence which is mortgaged but does not own other real estate. 

PENALTY 

The original proposal for assessment of penalty in this case was that 

respondent Anderson pay a sum of $400.00 for violation of section 56.9-22 

and $1,000.00 for violation of section 56.9-2. The Secretary proposes that 

Anderson pay $2,000.00 for each violation or a total of $4,000.00. 

The evidence which militates for very substantial penalties in this 

case is the seriousness of the two violations and the capability of the 

respondent Anderson as the supervisor of this plant and machine, in 

allowing two serious hazatds to exist which jeopardized the life and health 

of his fellow miners. However, mitigating factors to be considered in this 

case is the fact that the evidence does not show any history on Anderson's 

part of previous violations and that he exhibited good faith in assisting 

the MSHA inspectors with their investigation following the fatal accident 

and in attempting to achieve rapid compliance with the standards after the 

74i 
inspector notified him of the violations. Anderson was totally straight 

forward in his testimony that he thought the brakes on the end loader were 

adequate and that the berm was not necessary until after the road was 

widened and filled. Further, Anderson is in a relatively disadvantageous 

economic position due to the many members in his family subject to his 

support. 

Respondent Anderson is assessed a penalty in Docket Cent 80-199-M for 

violation of 30 C.F.R. § 56.9-22 of $200.00 and a penalty in Docket No. 

80-200-M for the alleged violation of 30 C.F.R. 56.9-2 of $200.00 or a 

total of $400.00. 

ORDER 

The petition filed in Docket Cent 80-378-M, Robert Orr, respondent is 

dismissed. 

In Docket No. CENT 80-66-M, respondent Raid Quarries, a division of 

Medusa Aggregates Company is ordered to pay a penalty of $1,000 for 

violation of 30 C.F.R. 56.9-22 and a penalty of $1,000 for violation of 30 

C.F.R. 56.9-2 for a total of $2,000. 

In Docket No. Cent 80-199-M, respondent James Anderson is ordered to 

pay a penalty of $200 for violation of 30 C.F.R. 56.9-22 and a penalty of 

$200 for violation of 30 C.F.R. 56.9-2 for a total of $400. 

The above penalty assessments are to be paid within 30 days of this 

decision. 

Distribution: 

J, Philip Smith, Esq. 

Office of the Solicitor 

Virgil 

Adminis 

United States Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Gene R. Krekel, Esq. 

200 Jefferson 

P .o. Box 1105 

Burlington, Iowa 52601 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

------~AP......._R,? 71982 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

BLACK RIVER SAND AND GRAVEL, INC., 

Respondent. 

) 

) CIVIL PENALTY PROCEEDING 

) 

) DOCKET NO. WEST 80-75-M 

) 

) A/C No. 45-01582-05005 

) 

) Mine: Black River Pit 

) 

) 

) ~~~~~~~~~~~~~~~~~~~~~ 

Appearances: 

Faye vonWrangel, Esq., Office of Daniel W. Teehan, Regional Solicitor, 

United States Department of Labor, Seattle, Washington 

For the Petitioner 

James L. Hawk, President, Black River Sand and Gravel 

appearing Pro Se, Seattle, Washington 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Federal Mine Safety and 

Health Administration, (MSHA), charges respondent with violating various 

safety regulations adopted under the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. 801 ~~· 

After notice to the parties a hearing on the merits was held on July 

7, 1981 in Seattle, Washington. 

ISSUES 

The issues are whether the proposed penalties are excessive. 

STIPULATION 

The parties stipulated that the violations existed on the date of the 

inspection. Respondent further reserved the right to show that the 

violations were not serious (Tr. 7). 

743 
' 

CITATION 354510 

This citation proposes a civil penalty of $72 for the violation of 30 

C.F.R. § 56.12-30. The cited standard provides as follows: 

56.12-30 Mandatory. When a potentially dangerous 

condition is found it shall be corrected before 

.equipment or wiring is energized. 

The evidence shows that the outer insulation on respondent's cable had 

pulled apart. This involved a possible electrical hazard. If the ground 

fault was interrupted the area could be energized with resulting shock or 

electrocution to a worker (Tr. 13, 14). 

CITATION 354513 

This citation proposes a civil penalty of $72 for the violation of the 

above cited electrical standard, 30 C.F.R. § 56.12-30. 

The evidence shows that the cable to the jaw crusher was broken and 

within easy reach of groμnd level. The cable was located on a steel frame 

and workers could be electrocuted if the ground fault system failed (Tr. 

14-16, R-7). 

CITATION 354514 

This citation proposes a penalty of $72 for the violation of the above 

cited electrical standard, 30 C.F.R. § 56.12-30. 

The evidence shows that the wires of the cable going to, the second 

material conveyor had separated from the outer insulation at the junction 

box. The cable was hanging down in large loops (Tr. 15-16). 

CITATION 586007 

This citation proposes a penalty of $52 for the alleged violation of 

30 C.F.R. § 56.16-5. The cited standard provides as follows: 

56.16-5 Mandatory. Compressed and liquid gas 

cylinders shall be secured in a safe manner. 

The evidence shows that there was an unsupported and untied acetylene 

bottle located next to a parts trailer. The almost empty bottle was 

sitting atop a pile of rock. Workers as well as heavy equipment pass with 

seven or eight feet of the bottle (Tr. 16-19, 24). 

744 
CITATION 586008 

This citation proposes a civil penalty of $140 for the violation of 

the previously cited standard, 30 C.F.R. § 56.12-30. 

The evidence shows that the power cable from the crushing plant was 

exposed to falling boulders (Tr. 18, R-3). Respondent abated this 

condition by abandoning this particular cable and conveyor (Tr. 32) 

CONTE·NTIONS 

Respondent contends that the violations are not serious, that human 

error is the greatest cause of injuries at the worksite, and finally 

respondent contends that OSHA has jurisdiction over this worksite rather 

than MSHA. 

I disagree. The evidence establishes that all of the electrical 

hazards were potentially dangerous. If the ground fault failed 

electrocution could result. 

The unsecured acetylene bottle is less serious than the electrical 

violations but as indicated petitioner proposes a lesser penalty for that 

violation. 

Respondent further contends that human error is the cause of most 

worksite accidents. I disagree with respondent's argument. In these 

citations all of the defects involved equipment problems which are clearly 

under managerial control as well as ownership. Respondent's reliance on 

"Fatalgrams" (RS) and respondent's later accident involving a fatality is 

not relevant in this case. 

Respondent's final argument is that OSHA .1./ rather than MSHA has 

jurisdiction over its sand and gravel operation. This issue has been 

previously decided contrary to respondent's views. Cf Valley Rock Sand and 

Gravel WEST 80-3-M, 4 FMSHRC 113 (January 1982). 

CIVIL PENALTIES 

Section llO(i) of the Act [30 u.s.c. 820(i)] provides as follows: 

The Commission shall have authority to assess all civil penalties 

provided in this Act. In assessing civil monetary penalties, the 

Commission shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the size of the business of the 

operator charged, whether the operator was negligent, the effect on the 

operator's ability to continue in business, the gravity of the violation, 

and the demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. 

ll Occupational Safety and Health Act, 29 U. S.C. 651 !E_ .!!1· 

745 
In connection with the proposed penalties I note that Citation 586008 

proposes a greater penalty that the other three violations of the same 

standard. In my view, petitioner has properly recognized the greater 

gravity that can be caused by the boulders falling on an extended cable. 

The penalty as proposed is, accordingly, a proper analysis of that 

violation compared with the other violations of the same standard. 

Considering the statutory criteria I am unwilling to disturb the 

petitioner's proposed penalties. 

Based on the foregoing findings of fact and conclusions of law I enter 

the fol lowing 

ORDER 

1. Citations 354510, 354513, 354514, 586007 and 586008 and the 

proposed penalties therefore are AFFIRMED. 

2. Respondent is ordered to pay the total sum of $408 within 40 days 

of the date of this order. 

Distribution: 

Faye vonWrangel, Esq. 

Office of the Solicitor 

United States Department of Labor 

8003 Federal Building 

Seattle, Washington 98174 

Mr. James L. Hawk, President 

Black Hawk Sand and Gravel, Inc. 

68-8 South One Hundred Fortieth Street 

Seattle, Washington 98178 

746 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR 281982 

CONSOLIDATION 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. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISIONS 

Contest of Orders and Citation 

Docket No. WEVA 80-116-R 

Order No. 808596; 10/29/79 

Docket No. WEVA 80-117-R 

Citation No. 808599; 10/30/79 

Docket No. WEVA 80-118-R 

Order No. 808606; 11/5/79 

Shoemaker Mine 

Civil Penalty Proceeding 

Docket No. WEVA 80-659 

Shoemaker Mine 

Appearances: Ant~ony J. Polito, Esquire, Pittsburgh, Pennsylvania, for 

contestant-respondent Consolidation Coal Company; David Street, 

Attorney, U.S. Department of Labor, Philadelphia, Pennsylvania, 

for respondent-petitioner MSHA. 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern three contests filed Consolidation Coal 

Company (hereinafter Consol) challenging the validity of the captioned 

orders and citation issued pursuant to the Federal Mine Safety and Health 

Act of 1977. The civil penalty proceeding concerns a proposal for assessment 

of civil penalty filed by MSHA seeking a civil penalty assessment for the 

citation issued in Docket WEVA 80-117-R. The three contests.were originally 

adjudicated by former Commission Judge James A. Laurenson, and he issued 

747 
his decision in those cases on October 7, 1980. Consol's petition for 

discretionary review by the Commission. was denied, and Judge Laurenson's 

decision became the final Co1111lission decision ~n this matter. Subsequently, 

on December 11, 1980, Consol filed a petition for review in th~ United 

States Court of Appeals for the Fourth Circuit, Consolidation Coal Company v. 

Secretary of Labor, No. 80-1862. The civil penalty case was stayed pending 

court review. On October 13, 1981, the Court vacated the decision and 

remanded the matter for further proceedings consistent with its opinion. 

The cases were subsequently assigned to me for further consideration and 

adjudication. 

Applicable Statutory Provisions 

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

et seq., and in particular sections 104(a) and (b), and 104(d)(l). 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i), which requires 

consideration of the following criteria before a civil penalty may be 

assessed for a proven violation: (1) the operator's history of previous 

violations,. (2) the appropriateness o.f 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. 

3. Commission Rules, 29 C.F.R. § 2700.1 et ~· 

Issues 

Counsel for the parties are in agreement that the following issues 

remain to be decided on remand: 

1. In light of all the evidence of record, including 

but not limited to all hearsay testimony excluded 

or not considered by the trier of fact, was Order 

No. 0808596 properly issued on October 29, 1979. 

2. In light of the recent decision by the Commission 

in Cement Division, National Gypsum Co., 3 FMSHRC 

822 (1981), was the violation described in Citation 

No. 0808599 (issued on October 30, 1979) of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard within the meaning of 

Section 104(d)(l) of the Federal Mine Safety and 

Health Act of 1977. 

3. The appropriate penalty, if any, to be assessed. 

748 
Discussion 

Docket No. WEVA 8~-116-R 

On October 26, 1979, at approximately 6:15 p.m., a section 104(a) 

citation no. 0808594, was served on Consol charging a violation of 

mandatory safety standard 30 CFR 75.200. The "condition or practice" 

cited by the inspector is described on the face of the citation as follows: 

The approved mine roof control plan was not being 

followed in 4 Right, 5 North (087) section in that roof 

bolts were spaced 4 feet 7 inches to 6 feet 2 inches 

apart and from the coal rib in approximately 150 

different locations in the coal conveyor belt entry from 

the tailpiece to 18+00 SS and from the belt entry to 

the face of No. 30 room for a total of approximately 300 

feet in length. C. Causey and T. Thomas, Section Foremen. 

4 feet 6 inch centers are maximum.required in flat face 

mining in the plan. 

The inspector who issued the citation made a finding that the alleged 

violation of section 75.200, was "significant and substantial", and he 

directed that the cited conditions be abated by 8:00 a.m., Monday, 

October 29, 1979. Thereafter, at approximately 8:55 a.m., October 29, 1979 

the inspector refused to extend the time for abatement and issued a 

section 104(b) withdrawal order no. 0808596 covering the same area of 

the mine covered by the underlying citation, namely, the belt entry from 

the tailpiece to 18+00 SS and from the belt entry to the face of No. 30 

room in the 5 North, 4 Right section of the Shoemaker Mine. The order 

stated as follows: 

Little effort had been made to abate Citation 0808594 

in that only approximately 15 roof bolts had been 

installed to support the roof in the area that was 

cited. The condition was reported six straight shifts 

and worked on only on 10/29/79, 12:00 to 8:00 a.m. 

shift according to the preshif t record book. 

WEVA 80-117-R and WEVA 80-659 

These consolidated proceedings concern a section 104(d)(l) "unwarrantable 

failure" citation issued to Consolidation Coal Company (hereinafter Consol) 

by an MSHA inspector on October 30, 1979, during the course of his mine 

inspection. Docket WEVA 80-117-R is a contest proceeding filed by Consol 

challenging the legality and propriety of the citation. In his decision 

of October 7, 1980, Judge Laurenson held that the citation was properly 

issued and denied Consol's contest. Docket WEVA 80-659, concerns a civil 

penalty proposal filed by MSHA on October 1, 1980, seeking a civil penalty 

assessment for the alleged violation set out in the citation, and both 

dockets have been consolidated for adjudication. 

749 
The section 104(d)(l) unwarrantable failure citation no. 0808599, 

was issued at approximately 11:55 a.m., on October 30, 1979. The citation 

alleged a violation of 30 CFR 75.200, and the "condition or practice" 

described by the inspector on the face of the citation is as follows: 

The approved mine roof control plan was not being 

followed in 4 Right, 5 North section (087) and on the 

section supply track in that roof bolts were spaced 

from 4 feet 7 inches to 7 feet 6 inches apart and from 

bolt to coal rib in approximately 350 different locations 

that were measured in the (intake air) No. 1 entry from 30 

to 33 ·room and from 31, 32 and 33 rooms, and in the track 

from 6 to 18 stopping for a total of approximately 1500 

feet in length and more bolts may be spaced wide. 4 feet 

6 inches maximum in plan. William Zamski Mine Foreman. 

In addition to his "unwarrantable failure" finding, the inspector 

determined that the cited violation of section 75.200 was a "significant 

and substantial" violation, and he fixed the abatement time as 8:00 a.m., 

Friday, November 2, 1979. On Monday, November 5, 1979, the inspector 

~efused to extend the time for abatement and at approximately 9:45 a.m. 

that same day issued a section 104(b) withdrawal order no. 0808606. 

Findings and Conclusions 

Docket No. WEVA 80-116-R 

The record adduced in this case reflects that at approximately 

6:15 p.m. on Friday, October 26, 1979, MSHA Inspector Charles Coffield 

issued a section 104(a) citation no. 0808594 for a condition he observed 

in the 5 North, 4 Right section of the mine. The citation indicated that 

the approved roof control plan was not being followed at approximately 

150 different locations in that approximately 150 roof bolts were spaced 

from four feet-seven inches to six feet-two inches apart. The approved 

plan required the bolts to be on four feet-six inch centers. Inspector 

Coffield fixed the abatement time as 8:00 a.m., Monday, October 29, 1979. 

On Monday morning, October 29, 1979, shortly before 8:00 a.m., 

Inspector Coffield went back into the 5 North, 4 Right section, and after 

refusing to extend the time for abatement of the citation issued the 

section 104(b) withdrawal order no. 0808596. Contestant contends that 

Inspector Coffield unreasonably exercised his power and that he acted 

arbitrarily and capriciously in failing to extend the time for abatement 

and in issuing the withdrawal order. 

Contestant does not challenge the validity of the underlying section 

104(a) citation no. 0808594, charging a violation of mandatory safety 

standard 30 CFR 75.200, for a violation of the approved roof control plan 

dealing with the proper spacing of roof bolts. Contestant's challenge 

in this proceeding concerns the inspector's decision to refuse an extension 

of the abatement time and his decision to issue a section 104(b) withdrawal 

order on October 29, 1979. In this regard, section 104(b) of the Act provides as follows: 

750 
If, upon any follow-up inspection of a coal or other 

mine, an authorized representative of the Secretary 

finds (l) that a violation described in a citation issued 

pursuant to subsection (a) has not been totally abated 

within the period of time originally fixed therein or as 

subsequently extended, and (2) that the period of time 

for the abatement should not be further extended, he 

shall determine the extent of the area affected by the 

violation and shall promptly issue an order requiring 

the operator of such mine or his agent to immediately 

cause all persons except those persons referred to in subsection (c), to be withdrawn from, and to be prohibited 

from entering, such area until an authorized representative 

of the Secretary determines that such violation has been 

abated. 

Respondent MSHA's Arguments 

In support of its argument that order of Withdrawal No. 0808596 

was properly issued, respondent MSHA relies on the previous decision 

issued by Judge Laurenson as well as its post-trial brief filed with him. 

Respondent takes the position that even if I were to conclude from the 

record that supply and mechanical problems during the midnight shift of 

October 29, 1979, prevented the timely abatement of citation 0808596, 

the order should still stand. In support of this position respondent 

relies on Judge Laurenson's conclusion that Inspector Coffield was not 

advised of any such difficulties, and at 8:00 a.m., October 29, 1979, 

was confronted with the fact that 

"only 15 roof bolts had been installed to correct 

150 wide spaced bolts and that abatement work had 

only been performed during one shift after issuance 

of the citation." 

In its brief filed with Judge Laurenson, MSHA points to the fact 

that Inspector Coffield discussed the abatement time with company walkaround representative Peter J. Domenick, but that Mr. Domenick could 

not provide an estimate of how long the job would take. Further, MSHA 

states that at the hearing it made an of fer of proof that one of the roof 

halters in the area told Mr. Coffield that he would be able to bolt the 

cited room on the evening of October 30, but that Judge Laurenson ruled 

that this was hearsay. Further, MSHA argues that in fixing the abatement 

time, Mr. Coffield took into account his own experience as a roof bolter 

which he had obtained at the Shoemaker mine (Tr. 300), and that he felt 

that the company could well have corrected the conditions within two 

shifts. In establishing his abatement date, he did not count on the 

operator calling in roof halters to work on the weekend, although he knew 

it was possible for it to do so (Tr. 301, 399). At the time the citation 

was issued, Mr. Domenick did not ask for more time for abatement (Tr. 43), 

and mine foreman William Zamski and General Superintendent Ronald Stovash 

believed that the entire bolting job could have been performed during the 

midnight shift on October 29 (Tr. 62). 

751 
MSHA argues that when Mr. Coffield returned to the mine on the 

morning of October 29, Inspector Coffield found that only 15 bolts had 

been installed in the cited area in a very small section near the tail 

piece (Tr. 302). He also noted that the violation had been reported by 

preshift examiners on six shifts and had been worked on only on the 29th 

(Tr. 302). Although he remembered that the company pulled the roof 

bolters out of the section after he issued the citation on the 26th, he 

still believed that the company could have left bolters in the section on 

that shift and accomplished a great deal towards abating the violation 

(Tr. 302-303). Another factor which weighed in his decision was that 

management personnel did not seem to know on the 29th what work had been 

done to abate (Tr. 66, 302-303, 308). In sum, he found that the company 

had not made an honest, all out effort to correct the violation (Tr. 433-434). 

Citing the applicable case law, MSHA asserts that the two general 

criteria addressed by the Commission's Judges in dealing with cases of 

this kind are the reasonableness of the original abatement period and 

the reasonableness of the inspector's decision not to extend that period. 

Itmann Coal Company v. Secretary of Labor, 1 BNA MSHC 2350 (FMSHRC 

.Docket No. HOPE 79-307, February 26, 1980), U.S. Steel Corporation v. 

Secretary of Labor, 1 BNA MSHC 2407 (FMSHRC Docket Nos. WEVA 80-54-R and 

80-55-R, April 8, 1980). The latter criteria depends on the facts confronting the inspector when he wrote his section 104(b) order. U.S. Steel 

Corporation v. Secretary of Labor., FMSHRC Docket No. WEVA 79-172-R 

(June 19, 1980), citing U.S. Steel Corporation v. Secretary of Interior, 

7 IBMA 109, 116 (1976). Facts to be considered include the diligence 

of the operator's effort to abate, the extent of mechanical or other 

difficulties encountered in abatement, and the seriousness of the unabated 

hazard. 

MSHA argues that on the facts presented in this case Inspector Coffield 

acted reasonably when he initially fixed the abatement time as 8:00 a.m., 

Monday, October 29, 1979. Given the fact that he received no answer from 

walkaround representative Dominick to his inquiry as to. how long abatement 

would take, taking into account his own experience and information he 

received from roof bolters in the area, and taking into account the fact 

that mine.foreman Zamski testified that he hoped to fully accomplish 

abatement on the first (midnight) shift early in the morning of October 29, 

MSHA concludes that the initial abatement deadline was clearly a realistic 

one. 

With regard to the events which transpired over the intervening weekend, 

MSHA argues that contestant made practically no effort to abate the violation 

until the early morning of October 29th in spite of the fact that about 

one-third of the violation could have been abated by mechanical bolters 

on October 26th, without resort to transferring any resin bolters to the 

cited section. Failing progress on Friday night, MSHA suggests that 

contestant could have called in extra bolters for Saturday work and for 

at least one shift of work on Sunday. Likewise, it could have asked bolters 

to double over into Saturday morning. Nevertheless, applicant waited until 

752 
the early hours of Monday, October 29, to begin work, and MSHA dsmisses 

as hearsay Mr. Za~ski's testimony that problems with power and supplies, 

as well as a malfunctioning bolting machine, impeded the contestant's 

abatement progress.• Further, MSHA contends that no information was 

provided as to how long it took to correct those problems, and Inspector 

Coffield was not advised as to the problems on October 29, nor did 

contestant demonstrate that the problems were sufficient to excuse its 

failure to install more than 15 roof bolts. 

Finally, MSHA argues that contestant's failure to mount a diligent 

effort to abate the citation was aggravated by the serious nature of the 

violation cited and that taken as a whole the situation which confronted 

Inspector Coffield on Monday morning, October 29, 1979, was a half-hearted 

effort by the contestant to correct a serious violation, which by the 

admission of its own mine foreman, could have been abated in the time 

allowed. Conceding that contestant voluntarily closed the section down, 

MSHA still argues that mechanics were in the area and were exposed 

to the hazards there, and points to the fact that Inspector Coffield had 

no guarantee that contestant would not reactivate the section as soon as 

he had granted an extension. In the circumstances, MSHA concludes that 

Mr. Coffield had no viable option other than to issue the section 104(b) 

withdrawal order. 

Contestant Consolidation Coal Company Arguments 

Contestant argues that in concluding that it had failed to establish 

that the period of time for abatement should have been extended, Judge 

Laurenson relied upon several facts which were not only not supported by 

substantial evidence but which were in some instances contrary to the 

undisputed evidence introduced at the hearing in this case. Moreover, 

contestant states that Judge Laurenson rejected as hearsay certain of its 

evidence and concluded that contestant had failed to prove that supply 

and mechanical problems prevented its abatement efforts during the midnight 

shift on Monday, October 29, 1979. 

Contestant asserts that when Inspector Coffield informed Mr. Dominick 

on the evening of October 26 that there were roof bolt spacing violations 

in the area covered by the citation, Mr. Dominick suspected that similar 

violations might also exist in other areas of the section (Tr. p. 18, 20). 

Thus, after consulting by phone with Ron Stovash, the General Superintendent, 

and Bill Zamski, the General Mine Foreman, Mr. Dominick decided to shut 

the section down so that it could be checked out further (Tr. p. 20-21). 

Originally, Mr. Dominick had told section foreman causey to leave the 

center bolters in the 5 North, 4 Right section and to take the rest of 

his crew to another section (Tr. p. 18). However, when Mr. Dominick 

learned that resin bolts were needed in the conveyor belt entry and that 

no resin bolts were available in the section at the time, he than told 

Mr. Causey to take his bolters out of the section with the rest of the 

crew (Tr. p. 18-19). The entire section had been shut down and all the 

employees had left when Mr. Dominick and Inspector Coffield left the 

section (Tr. p. 20). 

753 
Contestant takes issue with Judge ·1aurenson's previous finding that 

it offered no explanation or justification for its actions in sending 

the mechanical roof bolting crew out of the section after the citation 

was issued on Friday evening, October 26, 1979. Contestant states that 

General Mine Foreman Bill ZamskJ .. who participated in the decision to 

close the section offered the following explanation: 

Q. Why was no bolting done in the 30 room 

or in any part of the area covered by 

the citation during that evening shift 

[Octoper 26], during the balance of that 

shift? 

A. I didn't want to start up in the rooms. 

What I wanted to do was start the center 

bolting from the tailpiece in and correct 

the violation as we were coming in, make 

sure that we had all the bolts on our four 

and a half foot centers from the tailpiece 

in on our haul roads and in the cross cuts 

that lead into the rooms instead of going 

up in the room leaving the violation back 

behind us. 

Q. Why did you not start in the tailpiece 

[that evening]? 

A. Because we didn't have the resin bolt materials 

to do this. (Tr. 58-9.) 

Contestant asserts that it is clear from the undisputed testimony 

of Mr. Zamski that he felt that it was safer to abate the roof bolt spacing 

violations in the cross cut and the conveyor belt entry before employees 

were asked to do abatement work inby in the rooms. The evidence was 

that all the entries in this secti.on had been bolted with resin bolts 

(Tr. 19; GX-1). However, because the resin bolts were not available in 

the section at that particular time, no abatement work could be started 

that shift (Tr. 19). 

On the basis of the foregoing, contestant argues that it did offer 

a reasonable explanation for its decision not to perform any abatement 

work during the balance of the afternoon shift on Friday, October 26. 

The entries needed resin bolts, which were not available in the section 

at that time, and mine management determined that it was safer to work 

inby and do the entries before the rooms. Since this explanation was not 

contradicted, and there is nothing in the record which would justify 

rejecting it, contestant submits that a full and complete explanation was 

offered with respect to its activities during the remainder of the period 

prior to the issuance of the withdrawal order on Monday, October 29. 

754 
Contestant points out further that other necessary work had already 

been scheduled for Saturday and the halters were unable to do any bolting 

that day in the 5 1North, 4 Right section of the mine (Tr. p. 59-61). 

Moreover, an equipment move had been scheduled for Sunday and since no 

employees can be inby equipment that is being moved, no halters were 

scheduled to work in the 5 North, 4 Right section on Sunday (Tr. p. 62). 

In addition, both Mr. Zamski and Mr. Stovash explained that they had 

decided on Friday evening that the entire section was going to remain 

idle until the roof bolt spacings in the entire section could be checked 

out and, where necessary, corrected (Tr. p. 61-62, 151-52). Mr. Stovash 

further explained that his decision to close the section and to check 

it our further was based on Inspector Coffield's statement to him, on 

the evening of the 26th, that the same problem (i.e., roof bolt spacings) 

existed in the supply track entry (Tr. p. 151). Under these circumstances, 

mine management felt it would be sufficient and reasonable to try to have 

some bolting done in the section on Staurday and then to schedule halters 

to work in the area covered by the citation during the midnight shift on 

October 29 and to continue bolting in that area while the section remained 

idle and was being checked (Tr. pp. 59-62). 

With regard to Judge Laurenson's previous finding that contestant 

could have called in additional roof halters to abate the citation on 

'Saturday, October 27, or Sunday, October 28, but elected not to do so 

' because management determined that the citation could be abated during 

the midnight to 8:00 a.m. shift on Monday, October 29, contestant submits 

that this conclusion is contrary to the evidence adduced in this case. 

With respect to Sunday, October 28, contestant argues that the 

undisputed evidence was that an equipment move had been scheduled for 

that day and since no employees can be inby equipment that is being moved, 

no halters were scheduled to do abatement. work in the 5 North, 4 Right 

section on Sunday (Tr. p. 62). Agreeing with Judge Laurenson's finding 

that roof halters were scheduled to work and did work at the mine on 

Saturday, October 27, contestant points out that those roof halters 

had been instructed to begin abatement of the citation upon completion 

·of their other bolting work. The halters were required to bolt .the areas 

that had been mined on Friday or contestant would have been in violation 

of the law. However, they were unable to complete their other work in 

time and did not therefore perform any abatement work in the 5 North, 

4 Right section on Saturday, October 27 (Tr. p. 59-61). Although contestant 

agrees with Judge Laurenson's finding that some halters were scheduled to 

work on Saturday, it disagrees with his additional finding that mine 

management could or should have called in additional roof halters to 

abate the citation on Saturday, October 27, and contends that Judge Laurenson 

ignoreq the undisputed evidence that Saturday work schedules are made up on 

Wednesday of each week and posted on Thursday, advising the men who are 

to work and what their work assignments will be (Tr. p. 60). Thus, contestant asserts that it is difficult, if not impossible, to schedule 

on Friday evening additional men to work on a Saturday (Tr. p. 76-77). 

Further, contestant argues that Judge Laurenson's finding also ignores 

and is inconsistent with Inspector Coffield's statement that he really 

·was not considering that period of time (i.e., Saturday and Sunday) for 

abatement but instead felt that the citation could have been abated during 

755 
the midnight shift on the 29th. It was impossible to abate the violation 

in one or one and,one-half shifts. Instead, contestant closed down the 

section as soon as the citation was issued, tried to abate what it could 

on Saturday and also_ during the midnight shift on the 29th and felt that 

under all the circumstances (including particularly the fact that the 

entire section was closed and being checked), the inspector would surely 

extend the time for abatement. In that regard, both Mr. Stovash and 

Mr. Zamski reasonably believed that the citation would be extended if 

the section was voluntarily closed because other inspectors had done so 

(Tr. p. 81-82, 155-6). However, Inspector Coffield refused to do s.o. 

Conceding the evidence that only 14 bolts were installed on the 

midnight shift on Monday, October 29, contestant nonetheless argues that 

power problems made it difficult to get the bolting supplies into the 

section and the bolting machine then had mechanical problems. These 

problems were testified to be General Foreman Bill Zamski, General 

Superintendent Ron Stovash, and underground Superintendent Matt Matkovich. 

Although this evidence was rejected as hearsay by Judge Laurenson, 

contestant notes that that Court of Appeals has indicated that such evidence 

was probative and should be considered, and when so considered, submits 

that it offers a reasonable explanation for contestant's failure to 

do additional abatement work during the midnight shift on Monday, October 29. 

Regarding Judge Laurens:>n's finding that mine management did not 

inform Inspector Coffield of any alleged problems with supplies or 

equipment on Monday, October 29, contestant asserts that the uncontradicted 

testimony is that Mr. Matkovich talked to Inspector Coffield on the morning 

of October 29, asked him for an extension of time to abate the citation 

and also explained to him the problems the Company had encountered, 

including the problem "we had getting supplies in there" (Tr. p. 131). 

However, as Mr. Matkovich further testified, Inspector Coffield nevertheless 

refused to extend the time for abatement (Tr. p. 131'-2). Further, 

contestant maintains that in considering the request for an extension of 

the time for abatement, the inspector and Judge Laurenson should have 

but did not give any consideration to the fact that mine management had 

voluntarily closed the 5 North, 4 Right section prior to issuance of the 

withdrawal order on October 29. In support of this contention, contestant 

states that it is undispute~ that immediately after issuance of Citation 

No. 0808594 on Friday evening, October 26, mine management closed the 

5 North, 4 Right section of the mine and. that section was still closed 

on Monday morning," October\ 219, when Inspector Coffield issued his withdrawal order in that section· (Tr. pp. 18, 353). 

Contestant submits that Inspector Coffield failed to give any weight 

to its voluntary closure of the section and instead issued a withdrawa~ 

order on October 29 simply to penalize it for not having done exactly 

what he ordered them to do, i.e., install approximately 150 new bolts 

in the area covered by the citation, regardless of the reason or explanation 

for their failure to do so. Contestant submits that voluntarily closing 

the entire section for the purpose of determining and correcting all 

756 
possible roof spacing violations in the entire section was more than 

the Company was required to do in response to the original citation and 

that Mr. Coffield\s refusal to give that fact due consideration in 

determining whether to extend the time for abatement or issue a withdrawal 

order on Monday, October 29, was completely unreasonable and arbitrary on 

his part. 

Conceding that it did not insert 150 new bolts by 8:00 a.m. on 

Monday, October 29, contestant points to the fact that neither did it 

ignore the citation.. Instead, it made a good faith effort to comply 

by inserting as many new bolts as possible under the circumstances, and 

by closing down the section and conunitting itself to a plan which would 

determine the extent of violations in the entire section, contestant states 

it had volunatrily given up its right to produce coal during the balance 

of the afternoon shift on the 26th, the mindight shift on the 29th and 

thereafter, and maintains that such action on the part of mine management 

expressed and evidenced a sincere concern for the safety of the employees 

and its obligations under the, 1977 Act and war·ranted an extension of the 

time for abatement by the inspector. 

Contestant notes that the voluntary closure of a section eliminates 

exposure to possible health and safety hazards, and maintains that it is 

equally clear that its voluntary closure of the section under the circumstances 

of this case was for the purpose of determining and correcting roof bolt 

spacing violations in the entire section, rather than delaying abatement 

in any particular area of the section (Tr. p. 61-62, 151-152). Under these 

circumstances, contestant maintains that considerable weight should have 

been given to its voluntary closure of the section. Further, contestant 

points to the fact that in this case, there w~re no observed roof or rib 

falls in the 5 North, 4 Right section and no history of roof falls in the 

section. Also, all of the management witnesses who testified on the 

matter described the roof conditions in the section as being excellent 

(Tr. p. 26, 55-56, 110-11, 133-34, 165). Mr. Blevins, the Union Safety 

Conunitteeman who testified for the Secretary, as well as Inspector Coffield, 

described the roof conditions as being good (Tr. pp.202-3, 227, 374). 

Mr. Coffield also acknowledged that he saw no condition with respect to 

the roof or ribs on October 29 that was different from the conditions 

that he had observed on October 26 (Tr. p. 357). If anything, contestant 

maintains the section was safer inasmuch as 15 new bolts had been added 

since the afternoon shift on the 26th and the production crew had not 

been working since the citation was issued (Tr. p. 357). Finally, 

contestant emphasizes that Judge Laurenson himself found that the condition 

of the roof was good when he stated as follows: 

At all times and places relevant herein, the 

condition of the roof was good in that there was no 

evidence of recent falls of supported roof and no 

evidence of cracks, splits, or loose bolts. At all 

times and places relevant herein, there was only 

minimal sloughage of the ribs. (D. 3.) 
At pages six and seven of his decision, Judge Laurenson comments 

that "Consol failed to establish that supply and mechanical problems 

prevents its timely abatement because it presented only hearsay evidence 

of such purported problems without documentation" (emphasis added). 

In its remand of these proceedings, the Court made the following 

observation: 

In his opinion, the administrative law judge excluded, 

as hearsay, testimony of Consolidation's· general mine 

foreman, superintendent, and underground.superintendent 

that supply and mechanical problems prevented timely 

abatement. We conclude that this evidentiary ruling 

was erroneous. The testimony was nie~her irrelevant 

nor repetitious, and in every respect it satisfied the 

requirements for admission of hearsay evidence in an 

administrative hearing. 5 U.S.C. § 556(d); Carter-Wallace, 

Inc. v. Gardner, 417 F.2d 1086, 1095-96 (4th Cir. 1969). 

Farther, no objection was made to its introduction. 

Fair appraisal of Consolidation's defense required the 

administrative law judge to consider this probative 

evidence. 

In support of its assertion that the bolting machine had mechanical 

problems, contestant cites pgs. 62, 131, and 154-155 of the trial transcript. The only reference that I can find to any inoperative bolting 

machine is at pg. 155 where mine superintendent Stovash alludes to 

"problems with the bolting machine breaking down", and "power problems 

which prevented supplies from being transported to the section." Mr. Stovash 

further testified that he was first made aware of these problems on 

Monday morning. In view of the fact that the section was closed down, 

a reasonable effort was made to start bolting on the afternoon of the 

26th, and some bolting was in fact accomplished on the midnight shift on 

October 29th, and he fully expected Inspector Coffield to extend the 

abatement time. 

General mine foreman Zamski testified that 13 or 14 bolts were 

installed during the midnight shift on October 29th, and when asked why 

additional bolts were not installed, he replied as follows (Tr. 63): 

A. Well, we had power trouble and we had trouble 

getting the DC power. We had supply men bring the resin 

bolting material into the section. They got there late 

with it. Also, the center bolter, after they got it 

there, the center bolter was malfunctioning. It was down. 

It took them a while to get that fixed. 

Q. I am not sure what effect the power has on the 

roof bolting. Coule you explain that, please? 

A. Yes. Motors run on DC power. Jeeps, porter 

buses, and that is how we transported the resin material 

into the section. 

758 
As for the trial testimony of underground foreman Matkovich, aside 

\from an off-hand remark at pg. 131 dealing with some unspecified "problems 

we had getting supplies in there", Mr. Matkovich's testimony makes no 

reference to any mechanical problems. In addition, Mr. Matkovich testified 

that when he spoke with Inspector Coffield over the telephone, he specifically 

explained to him the problems with abating a citation received at the end 

of the last shift on a Friday and the problems with getting necessary 

supplies on the section. Mr. Matkovich also testified that he specifically 

told Mr. Coffield th~t he needed "a little more time" for abatement, and 

that since mine management had voluntarily shut the section down a little 

more time would not matter. However, Inspector Coffield simply indicated 

that he could not do it (Tr. 131-132). Further, it is clear that this 

conversation took place after Mr. Coffield issued his closure order (Tr. 131). 

Inspector Coffield testified that when he initially established 

the abatement time as 8:00 a.m., Monday, October 29, 1979, Mr. Dominick 

did not protest (Tr. 301). When asked why he issued the order and refused 

to extend the abatement time, Mr. Coffield respondent as follows (Tr. 302-

303): 

Q. Why did you issue the withdrawal order on the 

29th? 

A. I found that little effort had been made to 

abate the conditions cited. Only 15 roof bolts had been 

installed to support the roof in these areas. Before 

going underground I checked the record books of the mine 

and the particular record book of this section. The 

conditions had been reported six shifts, and according to 

the books it was booked only on 10/29/79, 12:00 to 8:00 

a.m. shifts. Also, I asked mine management at the mine what 

work had been done. They didn't seem to know what work 

had been done. Also, something, the fact that they pulled 

the roof bolters out of the section when I was there on 

10/26 after I issued the citation -- did not care to leave 

roof bolters in there to abate the citation or didn't do 

it -- and they could have started work on it and put in a 

lot of bolts or do whatever they wanted to do -- there 

was no reason given that they couldn't. I had reason to 

believe they could. I weighed heavily on it. Therefore, 

seeing in that period of time that only 15 roof bolts had 

been installed in a very small area near the tail piece, 

I would say that little effort to correct the citation had 

been made. 

Inspector Coffield also testified that while in the section each day 

after he issued the citation he observed mechanics and roof bolters there 

and assumed they were working on the abatement or to check out the section 

(Tr. 303). He also testified that on the morning of October 29, no one 

advised him of any equipment breakdowns that may have occurred on the 

759 
midnight shift, nor did anyone advis~ him of any problems that may have 

existed concerning the supply of resin bolt materials (Tr. 30&). He 

confirmed that he'had a telephone conversation with Mr. Matkovich that 

morning, and when Mr. Matkovich advised him that the section was closed 

so that the roof bolts could be installed, Mr. Coffield responded "Okay." 

Mr. Coffield confirmed that Mr. Matkovich wanted an extension of time but 

could not recall that he gave any reasons for this request (Tr. 306). 

With regard to his inquiry of mine management as to what work had 

been done on the abatement when he arrived at the mine on October 29, 

Inspector Coffield stated that he spoke to a Mr. Behrens when he entered 

the damp house to change his clothes, but that Mr •. Behrens indicated that 

he was not there and did not know (Tr. 308). Mr. Coffield also testified 

that he was "fairly certain" that he asked mine foreman Zamski about the 

abatement work but that "he really didn't know how much was done either" 

(Tr. 308). 

Mr. Coffield conceded that Mr. Dominick did make a statement to him 

that he needed "as much time as possible" to abate the citation (Tr. 346). 

He also conceded that in determining that the conditions cited could have 

been abated by 8:00 p.m., October 29, on two working shifts, what he had 

in mind was the balance of the afternoon shift on Friday, October 26, 

and the then the midnight shift on Monday, October 29 (Tr. 347). He 

also confirmed that resin bolts had to be added to the entries that were 

included in his citation, but he did not know whether they were available 

on the section on the afternoon of October 26 (Tr. 347), nor was he 

aware of any inoperative bolting machine on the October 29 midnight shift 

(Tr. 354). He also alluded to the fact that he observed at least four ' 

individuals from mine management on the section on the morning of October 29, 

including an engineer who was measuring bolts'(Tr. 353-354), and he 

confirmed that Mr. Behrens did state that the section was down and would 

remain down for production until further work was done (Tr. 365). 

Mr. Dominick testified that when Inspector Coffield asked him how 

much abatement time would be required to correct the roof spacing problems, 

he replied "all the time I can get" (Tr. 17). Mr. Dominick also testified 

that the roof bolters were removed from the area because of the lack of 

resin bolts, and that the section was closed down after the citation 

issued because he suspected that other areas also needed attention and 

that mine management wanted to check the area to ascertain the extent 

of the abatement work which had to be performed (Tr. 20). Mr. Dominick 

also confirmed that upon Mr. Stovash's instructions he returned to the mine 

on Monday, October 29, at the day shift which began at 8:00 a.m., and 

was accompanied by two company mining engineers and a safety inspector. 

The purpose of the visit was to check out the section to determine the 

spacing of the roof bolts and he prepared a report which he submitted 

to Mr. Stovash (Exhibit A-3; Tr. 23-34). 

In the prior adjudication of these proceedings Judge Laurenson 

granted contestant's contest concerning Inspector Coffield's refusal to, 

extend the abatement time when he issued section 104(b) Order No. 0808606 

on November 5, 1979. In vacating that order Judge Laurenson found that 

760 
while contestant failed to totally abate the violation noted in the 

underlying section 104(a) citation No. 0808599, issued on October 30, 

1979, contestant ~stablished that the period of time for abatement should 

have been further extended by the inspector. Judge Laurenson's rationale 

in this regard appears at pg. 10 of his decision of October 7, 1980, 

and he concluded that the inspector failed to give the contestant proper 

credit for its abatement activities. Judge Laurenson found credible 

contestant's assertions that work was performed every shift between the 

time the citation issued and the time the order issued, except for three 

shifts on Sunday, November 4, 1979, and he took particular note that 

contestant had installed more than 400 roof bolts, that contestant was 

obligated to abate more than the 350 widely spaced roof bolt violations 

noted by the inspector, added a total of 1,000 roof bolts before the 

citation was terminated, and otherwise established that it was making 

a diligent and bona fide effort to abate the citation in a timely manner. 

It seems obvious to me that Judge Laurenson was particularly impressed 

by the extensive efforts made by the contestant to abate a citation which 

required a great deal of work and effort by the contestant, and this is 

the reason why he vacated the withdrawal order and found that the abatement 

time should have been extended further by the inspector. 

In the instant case, Judge Laurenson gave contestant no credit for 

voluntarily closing the section down and ceasing production after the 

citation issued on Friday, October 26. Further, although he found that 

part of the cited area required resin bolts and there were no such supply 

of bolts available on the section, he·also found that contestant ordered 

the roof bolting crew out of the section because of a management determination that the resin bolts should be installed first but found that contestant 

offered no explanation for this action. Judge Laurenson also concluded 

that contesta~t could have called in additional roof bolters during the 

intervening Saturday and Sunday but opted not to do so because of a management determination that abatement could be achieved on the Monday, 

October 29th midnight shift. He also found that contestant did not 

inform Inspector Coffield of any mechanical or supply problems prior 

to the issuance of the order, that such information was hearsay, and 

that on Monday only 15 roof bolts out of more than the required 100 had 

been installed. 

After careful review and consideration of the entire record in this 

case, including the testimony which has been characterized as "hearsay" 

I conclude and find the that the initial period of abatement fixed by 

Inspector Coffield on Friday, October 26th when he issued the citation 

was not unreasonable or arbitrary. As a matter of fact, the record 

reasonably supports a conclusion that at that time mine management had 

no reason to believe that abatement could not be achieved during the 

subsequent afternoon shift and the mindight shift on Monday, October 29. 

As a matter of fact, Inspector Coffield testified that while he believed 

abatement could be achieved in two shifts, what he had in mind was the 

remainder of the Friday shift and the Monday midnight shift and not Saturday 

or Sunday shifts. However, I further find and conclude that the inspector 

acted unreasonably in failing to extend the abatement time on Monday, 

October 29, and my reasons for this follow. 

761 
Contrary to MSHA's arguments that the walkaround representative said 

nothing to the inspector when he issued the citation and fixed the 

abatement time, Mr. Domenick testified that he advised Mr. Coffield that 

he could use all the time that he could get. Further, I find credible 

Mr. Domenick's testimony that he closed the section down because he 

suspected other areas in the section may have needed roof bolt attention, 

and this is further substantiated by the fact that Mr. Domenick, a company 

safety representative, and two mining engineers returned to the section 

on Monday, October 29, for the purpose of surveying and measuring the 

roof bolt spacing, and Mr. Domenick reported his findings to the mine 

superintendent. Mr. Coffield confirmed that these individuals were there. 

With regard to the excluded hearsay, I take note of the fact that 

when contestant's witnesses testified as to certain mechanical and supply 

problems, MSHA's counsel interposed no objections, nor did he pursue 

the matter further on cross examination. Judge Laurenson found that 

contestant had not "documented" these asserted "problems" and failed to 

communicate them to the inspector. Mr. Zamski's direct testimony makes 

specific references to a malfunctioning roof bolter which was subsequently 

repaired, and problems with the DC power required to power the equipment 

bringing supplies into the section, and the testiomny still remains 

unrebutted. While it is true that the supply and mechanical problems 

were not directly communicated to Mr. Coffield before he decided to issue 

a withdrawal order and hung up the closure sign, Mr. Matkovich testified 

that he spoke with Mr. Coffield that very same morning over the telephone 

after Mr. Behrens notified him of Mr. Coffield's decision to issue a 

closure order, that he specifically asked the inspector for an extension 

of time, and advised him that the section had been closed down since 

Friday for the specific purpose of bolting. Mr. Coffield responded "okay". 

Mr. Coffield confirmed that Mr. Matkovich asked for an extension but he 

could not recall whether the had given him any reasons for this request. 

With regard to Judge Laurenson's finding that contestant failed to 

of fer any explanation as to why the roof halters were taken off the section 

after the citation issued any why resin bolts had to installed first, 

Mr. Domenick's testimony which appears at pages 19-20, 37-38, and 45-46, 

explains the differences between the use of mechanical and resin roof bolts, 

and Mr. Domenick specifically indicated that the two can not ~e mixed, that 

some of the areas cited by Mr. Coffield required resin bolts, and in 

response to a specific qu.estion asked by Judge Laurenson, Mr. Domenick 

detailed why resin bolts are required in a certain area and not in others 

(Tr. 45-46 ). Further, the record reflects that Mr. Coffield confirmed 

that he was aware of the fact that resin bolts had to be added in the 

entries that were included in his October 26th citation (Tr. 347). 

I cannot conclude that the fact that contestant failed to bring 

in additional halters during Saturday and Sunday supports a conclusion 

that contestant was indifferent or otherwise unmindful of the fact that 

it had to abate the citation. It seems obvious to me from the testimony 

presented in this case that neither Inspector Coffield nor mine management 

762 
initially believed that this was required to abate the conditions cited. 

Mr. Coffield believed that abatement could have been achieved during 

two subsequent shifts, namely on Friday and Monday midnight, and so to 

did mine management. The fact that mine management's belief that 

Mr. Coffield would somehow automatically extend the time for abatement 

proved to be wrong has to be considered in light of all of the circumstances 

and subsequent events which transpired after the citation issued. 

On the facts presented in this case, I find contestant's explanations 

as to why additional bolters were not brought in Saturday and Sunday to 

be credible and I accept them. The citation was issued Friday afternoon, 

regular work schedules had already been established, and mine management 

voluntarily shut the section down and ceased production. It then made a 

complete assessment of the prevailing conditions which existed in the 

section; and while it may be argued.that part of its motivation for doing 

so was to "cover all bets" and to insure that additional citations would 

not be issued, I do not believe that it should be unduly penalized for 

this. The section was down, production had ceased, and I believe that 

contestant was making a diligent attempt to achieve abatement. Simply 

because only 15 bolts had been installed cannot, in my view, serve as 

a basis for any conclusion that nothing was being done. 

In view of the foregoing findings and conclusions, I find that 

the record before me supports a conclusion that the contestant made a 

good faith effort at timely abating the citation in question, established 

valid reasons warranting an extension of time to totally abate the 

citation, and that the time should have been extended by the inspector. 

Accordingly, the section 104(b) Order No. 0808596, issued on October 29, 1979 

IS VACATED. 

Findings and Conclusions 

Docket Nos. WEVA 80-117-R and WEVA 80-659 

These consolidated dockets concern the question as to whether a 

section 104(d)(l) "unwarrantable failure" citation (no. 0808599) issued 

by Inspector Coffield to the contestant on October 30, 1979, was properly 

issued, and if so, the appropriate civil penalty which should be assessed 

for the violation, taking into account the six statutory criteria found 

in section llO(i) of the Act. 

In the prior adjudication of contest Docket No. WEVA 80-117-R, Judge 

Laurenson found that MSHA had established the required findings of 

unwarrantability at the time the citation issued, rejected contestant's 

defense in this regard, and found that the contestant had failed to 

exercise due diligence and reasonable care to correct the conditions cited 

by the inspector prior to the issuance of the citation for a violation 

of mandatory safety standard 30 CFR 75.200. He concluded that the violation 

was the result of an unwarrantable failure by contestant and affirmed 

the inspector's finding in this regard. 

763 
With regard to the i~spector's further findings that the citation 

constituted a· "significant and substantial" violation, Judge Laurenson 

found that the vi~lation could significantly and substantially contribute 

to the cause and effect of a coal mine safety hazard, and in so doing 

he relied on the then applicable case precedent in Alabama By-Products, 

7 IBMA 85 (1976). 

As noted earlier in this case, following an appeal to the Fourth 

Circuit, the Court vacated and remanded Judge Laurenson's decision 

because Commission precedent on the element of "significant and substantial" 

had changed during the time the case was before the Court. The recent 

decision of the Commission which changed the required burden of proof 

on the "significant and substantial" issue is Cemeri.t Division, National 

Gypsum Company v. Secretary, 2 BNA MSHRC 1201 (1981), 3 FMSHRC 822 (1981). 

In that case, the Commission outlined the new definition of the term 

"significant and substantial" as follows: 

• • • we hold that a violation is of such a nature 

as could significantly and substantially contribute 

to the cause and effect of a mine safety or health 

hazard if, based on the particular facts surrounding 

that violation, there exists a reasonable likelihood 

that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature. 

(Emphasis added.) 

The Commission also made the following pertinent comment in National 

Gypsum: 

Although the Act does not define the key terms 

'hazard' or 'significantly and substantially', 

in this context we understand the word 'hazard' 

to denote a measure of danger to safety or health, 

and that a violation 'significantly and substantially' 

contributes to the cause and effect, of a hazard if the 

violation could be a major cause of a danger to 

safety or health. In other words, the contribution 

to cause and effect must be significant and substantial." 

In support of their respective arguments applying the National Gypsum 

"significant and substantial" standard, the parties have submitted the 

arguments which follow below. 

MSHA's arguments 

MSHA asserts that the record in this case reflects that in the subject 

four right five north section of contestant's Shoemaker Mine, MSHA 

Inspector Charles Coffield found approximately 350 widely spaced bolts 

in the intake escape entry, three adjoining rooms (numbers 31, 32 and 33) 

adjacent to that entry, and in the supply track entry (Tr. 308-309, 311). 

764 
In the intake escape entry and adjoining rooms, Mr. Coffield found that 

the range of spacing for the bolts were from four feet seven inches to 

five feet eleven inches (Tr. 310). In the supply track entry the range 

was from four feet seven inches to seven feet six inches (Tr. 311). 

Union walkaround representative Charles Pyle testified that some of the 

bolts were spaced six feet wide and he remembers one in the vicinity 

of seven feet (Tr. 267, 274). Genexally the spacing between bolts was 

wider in the supply track entry than in the other cited areas (Tr. 313). 

The applicable roof control plan required roof bolt spacing of four feet 

six inches. 

Conceding that the roof was basically sound, MSHA argues that there 

were three different locations in the aforementioned areas where Mr. 

Coffield observed that the roof was loose or unsupported between the bolts 

and could have fallen at any time (Tr. 373, 405, 407). There were a number 

of miners in the section who were potentially exposed to the hazards. 

At least two mechanics were in the section on October 30 (Tr. 119, 124, 

167). Although contestant's superintendent Ronald Stovash testified 

that the mechanics were in the sect:im. simply to wait for maintenance 

problems to arise on the roof bolter, MSHA points out that miner Charles 

Pyle testified that the mechanics were working on a feeder and on a shuttle 

car (Tr. 265-266). Normally seven to eight people work in a mine section 

(Tr. 444). All members of the crew could be expected to pass under the 

seven foot six inch spacing, which was in the vicinity of the dinner hole 

(Tr. 267, 312-313). 

In analyzing the test enunciated in the National Gypsum decision, 

MSHA suggests that the following questions need to be addressed in this case: 

1. Wnat is the hazard contributed to by the 

violqtion? 

2. Is there a reasonable likelihood that the 

- hazard contributed to will result in an injury or illness? 

3. Would that injury or illness be of a reasonably 

serious nature? 

In its arguments in support of the first two questions, MSHA asserts 

that the hazard contributed to by the violation in this case is the increased 

possibility of a roof fall, either or a major portion of the roof or of 

a small fall of roof material from between the bolts. In answer to the 

second question, MSHA argues that given the facts in this case, there was 

a reasonable likelihood that the hazard contributed to would result in 

an injury, and in support of this conclusion advances six reasons why 

a roof fall was reasonably likely to occur and lead to injury and these 

are as follows: 

765 
i. In three different locations in the cited area 

roof was loose or unsupported between the bolts 

and could have fallen at anytime. 

2. The widest spacing documented by Mr. Coffield, 

seven feet six inches, was in the vicinity of 

the dinner hole. During normal operations, every 

person on the section could be expected to 

pass in the vicinity of that violative condition. 

3. As the roof control plan itself spec~fies, it 

is a minimum plan. Even when roof control plans 

are followed to the letter, falls occur on occasion. 

Noncompliance with a roof control plan certainly 

increases the likelihood of a fall. 

4. The area with the greatest concentration of wide 

spacing was the supply track entry. The vibration 

caused there by the operation of supply motors 

increases the possibility of a roof fall even 

under situations where the plan is followed. 

5. The supply entry was frequently traveled. 

6. As contestant's witness Peter J. Dominick testified, 

"pretty nice sized" pieces of roof, measuring up to 

two feet by three feet, had fallen to the floor in 

the four right, five north section. (Tr. 36). 

Regarding the final question posed in its analysis, MSHA argues that 

if a roof fall had occurred and included a major portion of the roof 

(e.g., above the anchorages of the roof bolts), crippling or fatal injuries 

would afflict anyone in the vicinity not fortunate enough to be protected 

by a cab or canopy. Further, MSHA suggests that even small falls from 

between the bolts likely would cause anyone contacted by the roof material 

to suffer serious injuries, and points to miner Charles Pyle's testimony 

that a piece of roof material the size of a brief case which fell from 

the foor of the Shoemaker Mine could break a man's back (Tr. 276-277). 

Contestant's arguments 

Contestant submits that taking into account the definition of 

"significant and substantial" as set forth in the National Gypsum case, 

there did not exist, on October 30, 1979, any reasonable likelihood that 

the hazard contributed to would result in an injury or illness of a 

reasonable serious nature. Conceding that the citation alleges many 

roof bolt spacing violations in approximately 350 different locations, 

contestant notes that Inspector Coffield acknowledged that he only measured 

approximately 200 different locations and that he "eyeballed" the rest 

(approximately 150) of the alleged violations (Tr. pp. 358-59). Moreover, 

766 
contestant asserts that Mr. Coffield did not recall and had no notes to 

indicate how many'of the alleged violations were in excess of five feet 

(Tr. p. 359), and therefore maintains that it is difficult to determine 

the actual extent of roof bolt spacing violations that existed on 

October 30, 1979. Although contestant does not dispute the fact that 

some violations were present on the day in question, it makes the latter 

points only to show that the extent of the violation was definitely not 

as serious as Inspector Coffield made it appear in his citation. Citing 

Mr. Coffield's testimony at pages 313-314 and 370-376 of the transcript, 

contestant maintains that it becomes clear that his only basis for finding 

a "signif'icant and substantial" violation was his generalized belief or 

assumption that any roof bolt spacings that are not in complete compliance 

with the roof support plan can cause a significant and substantial hazard 

of a roof fall. Contestant submits that a generalized assumption of this 

nature, without specific factual findings, is inadequate to support a 

conclusion that a particular condition can significantly and substantially 

contribute to a mine safety hazard so as to justify a section 104(d)(l) citation. 

Contestant points to the fact that in National Gypsum, the Commission 

made it clear that in a 104(d) citation there must be something more than 

just a violation, which itself presupposes at least a remote possibility 

of an injury. Instead, the inspector "is to make significant and substantial 

findings in addition to a finding of violation. 11 Contestant asserts that 

it is apparent that Inspector Coffield did not make such findings and 

that he improperly assumed that all roof bolt spacing violations were 

significant and substantial since there is a possibility that the roof 

could fall between the bolts. Contestant maintains that this theoretical 

possibility is not sufficient to sustain a 104(d) citation, and that the 

evidence simply does not support a finding that there existed a reasonable 

likelihood that the alleged hazard contributed to would result in an 

injury or illness of a reasonably serious nature. 

In support of its argument, contestant notes that every witness who 

testified on the matter acknowledged that roof conditions in the 5 North, 

4 Right section of the Shoemaker Mine were good, and that most of the 

witnesses described the roof conditions as being very good or excellent 

(Tr. pp. 26, 55-56, 110-11, 133-34, 165), and Inspector Coffield himself 

acknowledged that the roof conditions in the 4 Right section were "basically 

sound" in October of 1979 (Tr. p. 374). Moreover, contestant asserts 

that except for one fall which had occurred due to a clay vein in the 

area of the juncture of 5 North, 4 Right when the section was initially 

being advanced in September of 1978, there had been no roof falls in 

the 4 Right section up to and including the time of the hearing (Tr. pp. 

26, 56-57, 110-11, 133-34, 165). Thus, contestant concludes it is clear 

that we are dealing with a situation wherein the alleged hazard of a 

roof fall cannot be presumed, as Inspector Coffield obviously did, and 

that some specific facts must exist to justifiy a finding of a substantial 

and significant risk of a hazard on October 30, 1979. 

Contestant points to the fact that Inspector Coffield acknowledged 

that he issued a section 104(a) citation on October 26 with respect to 

roof support spacing violations in the same section of the mine where 

767 
he subsequently issued the section 104(d)(l) citation. Recognizing 

the fact that an inspector has sole discretion in determining when and 

what citations he will issue, contestant nonetheless asserts that an 

inspector cannot examine a section, find roof support violations in 

large areas of that section, select only a small area of the section 

for a Section 104(a) citation one day and then several days later come 

back and issue section 104(d)(l) unwarrantable failure citation for the 

larger area. Contestant maintains that Inspector Coffield's waiting until 

Tuesday, October 30, to issue the unwarrantable citation for the larger 

area of the sectio~ simply does not justify a finding that the condition 

could substantially and significantly contribute to a mine safety hazard. 

Contestant submits that no hazard existed in the 5 North, 4 Right 

section of the mine on October 30, 1979, and points to the fact that 

no coal was being produced in the section on Tuesday morning, October 30, 

when the unwarrantable failure citation was issued. Further, contestant 

argues that since the only employees in the section were the roof bolters 

and mechanics who were required to be there for the purpose of abating 

the previous citation and order issued by Inspector Coffield, there was 

only a limited and necessary exposure of employees. In addition, contestant 

maintains that there had been no roof falls in the section since it had 

been developed in September of 1978, that Inspector Coffield acknowledged 

there had been no fatalities or injuries related to roof falls in the 

section, that Judge Laurenson concluded that the roof conditions were 

good and that there was no evidence of recent roof falls or any cracks, 

splits or loose bolts, and that employees had been working in and walking 

through the same area of the section for at least six months before 

October 1979 without any incident and there is no evidence that anything 

usua.1 or different existed on that day with respect to the conditions of 

the roof. 

Finally, contestant maintains that Judge Laurenson sustained the 

section 104(d) citation because he felt that the evidence established that 

the "possibility of a roof fall injury in the cited area was neither 

remote nor speculative", citing Alabama By-Products. However, since 

the Alabama By-Products test has been overruled by the Commission, 

contestant submits that Judge Laurenson himself would not have sustained 

the citation if he had been using the standard later adopted by the Commission 

in the National Gypsum case. Further, contestant observes that in National 

Gypsum the Commission noted that the violation of any health or safety 

standard presupposes the possibility of it contributing to an· injury or 

illness. However, since the language in section 104(d) of the 1977 Act 

makes it clear that a significant and substantial finding is to be made 

in addition to a finding of a violation, contestant asserts something 

more than the possibility of an injury or illness must exist; there must 

be a "reasonable likelihood that the hazard contributed to will result 

in injury or illness of a reasonably serious nature." Contestant concludes 

that there simply were no facts to justify such a finding in this case 

and the 104(d) citation should therefore be vacated. 

768 
After careful consideration of the entire record adduced in this 

proceeding, including the arguments presented by the parties in support 

of their respective positions, I conclude and find that MSHA has the 

better part of the argument in support of its conclusion that the citation 

issued by Inspector Coffield on October 30, 1979, was in fact "significant 

and substantial", even under the test enunciated by the National Gypsum 

decision. Although it may be true that employees had been working and 

walking through the section for at least six months prior to October 1979 

without incident, the fact is that on October 30, the roof conditions 

were different. At least 140 additional roof bolts had been added in 

the section since the first citation issued on October 26, ·and mechanics 

and roof bolters were in the section performing abatement work. Further, 

at pg. 23 of its brief, contestant concedes that on October 30 the risk 

of hazard on the section was less than it had previously been since the 

section was closed down and fewer workers were exposed and mine management 

was in the process of checking out the section and doing abatement work. 

Therefore,. contrary to its earlier argument that no hazards existed 

on October 30, from the record and arguments presented in this case I 

conclude that a hazard did exist on the section and that is precisely why 

the inspector issued the citation citing a violation of section 75.200, 

and that is precisely why the abatement work was going on. I also take 

note of contestant's admission at pg. 23 of its brief that there was in 

fact a "limited and necessary exposure of employees". In summary, contrary 

to contestant's suggestions that no hazards existed and that no employees 

were exposed to a potential roof fall injury because the section had 

been shut down, I conclude and find that employees were in fact working 

in the section and that a hazard did exist. The crucial question is 

whether or not the prevailing hazards on the section on October 30 were 

"significant and substantial". 

Contrary to contestant's assertion that there had been no roof falls 

in the section since it was developed, Judge Laurenson specifically 

noted at page 9 of his decision of October 7, 1980, that "there was 

evidence of at least one prior fall of supported roof in this section". 

As a matter of fact, Judge Laurenson took particular note of the fact that 

contestant's own mine foreman Zamski conceded that wide spaced roof bolts 

increased the possibility of roof falls. Further, in finding No. 18, at 

page 5 of his decision, Judge Laurenson specifically found that in the 

supply track entry cited by Inspector Coffield "all persons who walked 

under the wide spaced roof bolts were exposed to the danger of a roof fall". 

Although Judge Laurenson observed that the roof in question was generally 

acknowledged to be in good condition, contestant's assertion that he 

made a finding that there was no evidence of roof cracks, splits, or 

loose bolts is taken our of context. Judge Laurenson's sequential finding 

No. 4 which appears at page 3 of his decision appears to be related to 

citation no. 0808594, which does not include the track entry area which 

is the subject of the instant "significant and substantial" citation. 

In addition, the official transcript of the hearings contains testimony 

by the inspector that in at least three different locations in the section 

the roof was loose, cracked, or unsupported between the bolts and could 

fall at any time (Tr. 406-407). There is also testimony by Mr. Coffield 

that his determination that the roof was basically sound was made by 

"observation and sounding the roof", but that this does not guarantee 
that there will be no falls of roof material from between the bolts 

(Tr. 409). Furth~r, as noted by Judge Laurenson at pg. 9 of his decision 

at some locations the roof bolts were seven feet apart. This is two 

and one-half feet further apart than required by the approved control 

plan. 

In view of the foregoing, I conclude and find that the roof conditions 

cited by Inspector Coffield which resulted in the issuance of the citation 

in question presented a reasonable likelihood that the hazards presented 

by the widely spaced roof bolts, as well as the areas described by the 

inspector as being loose between the bolts at several locations, constituted 

a significant and 'substantial hazard to those miners working and traveling 

through the cited areas. The danger presented was a roof fall, particularly 

in the track entry where the roof bolt spacing was the widest, and the 

real potential for a fall in any of these locations was the direct result 

of the violation. 

Contestant's suggestion that Inspector Coffield somehow acted 

arbitrarily by including an additional area of the mine as part of the 

section 104(d)(l) citation which he had not included in his previous 

section 104(a) citation, is rejected. As correctly pointed out by Judge 

Laurenson at pg. 8 of his decisio~ the validity of a citation must stand 

or fall on its own merits. Having considered the instant citation on 

its own merits, and taking into account the aforesaid findings and 

conclusions made by me in this case, the section 104(d)(l) Citation No. 

0808599, issued by Inspector Coffield on October 30, 1979, IS AFFIRMED 

and the contest is DISMISSED. I also reaffirm Judge Laurenson's prior 

finding of a violation of section 75.200, as well as finding that the 

citation resulted from the contestant's unwarrantable failure to comply 

with the cited mandatory safety standard. 

Civil:Penalty Assessment - WEVA 80-659 

In determining the amount of civil penalty assessments, section llO(i) 

of the 1977 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 charged; 

(3) whether the operator was negligent; (4) the effect on the operator's 

ability to continue in busines;; (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. 

With respect to item 2, the parties have stipulated that Consol is 

a large operator. With respect to item 4, the parties have stipulated 

that the assessment of an appropriate civil penalty will not affect 

Consol's ability to remain in business. With respect to item 1, concerning 

the respondent's history of prior violations, although the parties advised 

me that MSHA would submit a computer print-out reflecting prior assessed 

violations levied against the respondent's Shoemaker Mine for the 24-month 

period preceding the issuance of the citation in question, no such 

770 
information has been filed with me, nor does MSHA address this issue 

in its brief. Aceordingly, I have no basis for making any finding 

in this regard. 

Good faith abatement 

The inspector fixed the abatement time for citation 0808599 as 

Friday, November 2, 1979, at 8:00 a.m. Judge Laurenson found that Consol 

protested the termination due date at the time the citation issued, and 

that the inspector did not return to the mine on November 2, 1979. When 

he returned the following Monday, November 5, 1979, he found that only 155 

new roof bolts had been installed, and refused to extend the abatement 

time further. He then issued a section 104(b) withdrawal order for failure 

to abate the conditions (Order No. 0808606). 

Consol successfully challenged Order No. 0808606, and Judge Laurenson 

vacated the order after finding that the inspector failed to give proper 

credit to Consol for its abatement activities and erred in refusing to 

extend the time for abatement of this violation (Docket WEVA 80-118-R). 

Judge Laurenson found that Consol made a bona fide effort to abate the 

citation in a timely manner, and that 1,000 roof bolts were added to the 

section before the citation was terminated. Although the inspector 

cited 350 roof bolts in violation of the roof plan on October 30, 1979, 

Judge Laurenson took note of the fact that Consol had installed more than 

400 roof bolts by November 5, 1979, and that except for Sunday, November 4, 

1979, roof bolters worked every shift between the time the citation issued 

and the time the order was issued November 5, 1979. 

In view of the foregoing, I conclude and· find that respondent exhibited 

good faith compliance in correcting the conditions cited and this fact 

is reflected in the civil penalty assessment made by me in this matter. 

Gravity 

I conclude and find that the violation concerning the widely-spaced 

roof bolts in the areas cited by the inspector in the citation presented 

a potential hazard for a roof fall which could have resulted in injuries 

to miners and that this violation was serious. 

Negligence 

I conclude and find that the record supports a conclusion that the 

widely-spaced bolts were inserted some time prior to the day the citation 

in question issued. Even considering the fact that the record in these 

consolidated proceedings contains information concerning an MSHA "guideline" 

dealing with a so-called "spacing tolerance", this issue is not further 

addressed by the parties and I consider it irrelevant. On the facts 

and record here presented, particularly the fact that a mine operator is 

771 
expected to know the requirements of his own approved roof control plan, 

I conclude that the violation resulted from the respondent's failure to 

exercise reasonabl~ care to prevent the cited conditions or practices 

which caused the violation, and that this amounts to ordinary negligence. 

Penalty: Assessment 

I take note of the fact that MSHA's proposal for assessment of civil 

penalty in this civil penalty docket seeks an assessment of $1,000 for 

the violation in question. Taking into account the aforementioned findings 

and conclusions, and the requirements of seciton l+O(i) of the Act, I find 

that this proposed asssessment is reasonable and I adopt it as my penalty 

assessment in this case. 

ORDERS 

Docket No. WEVA 80-116-R 

Section 104(b) Order No. 0808596, October 29, 1979, IS VACATED. 

Docket No. WEVA 80-117-R 

Section 104(d)(l) Citation No. 0808599, October 30, 1979, IS AFFIRMED. 

Docket No. WEVA 80-659 

Respondent Consolidation Coal Company IS ORDERED to pay the civil 

penalty assessed by me in this case, in the amount of $1,000, within thirty 

(30) days of the date of this decision and order, and upon receipt of 

same by MSHA, this matter is DISMISSED. 

Docket No. WEVA 80-118-R 

By agreement and consent of the parties, this case is DISMISSED. 

Distribution: 

g 

~~outras d~ 

Administrative Law Judge 

David Street, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Anthony J. Polito, Esq., Corcoran, Hardesty, Ewart, l.-fuyte & Politoj 

Suite 210, Two Chatham Center, Pittsburgh, PA 15219 (Certified Mail) 

Michel Nardi, William H. Dickey, Esqs., Consolidation Coal Co., 1800 

Washington Rd., Pittsburgh, PA 15241 (Certified Mail) 

Harrison Co~bs, Esq., UMWA, 900 15th St., NW, Washington, DC 20005 

(Certified Mail) 

772 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR 2 81982 

LOCAL UNION 1889, DISTRICT 17, 

UNITED MINE WORKERS OF AMERICA 

(UMWA), 

Complainant 

v. 

WESTMORELAND COAL COMPANY, 

Respondent 

Complaint for Compensation 

Docket No. WEVA 81-256-C 

Order No. 668337 § 103{j) 

November 7, 1980 

Order No. 668338 § 107(a) 

November 7, 1980 

Ferrell No. 17 Mine 

SUMMARY DECISION 

The original complaint in this proceeding was filed on February 5, 

1981, under section 111 of the Federal Mine Safety and Health Act of 1977. 

An amended complaint was filed on November 9, 1981. The amended complaint 

first requests that the miners at Westmoreland's Ferrell No. 17 Mine be 

paid for 1 week of compensation under section 111 of the Act because of the 

issuance on November 7, 1980, of Order No. 668338 under section 107(a) of 

the Act, even though that order did not allege a violation of any mandatory 

health or safety standard. Alternatively, the amended complaint requests 

that the miners scheduled to work on both the day shift and the afternoon 

shift of November 7, 1980, be paid compensation because of the issuance on 

November 7, 1980, of Order Nos. 668337 and 668338 under sections 103{j) and 

107(a), respectively. Finally, if both of the aforesaid requests are denied, 

the amended complaint requests that the miners scheduled to work on the day 

shift on November 7, 1980, be paid 4 hours of compensation because of the 

issuance on November 7, 1980, of Order No. 668337, irrespective of the fact 

that they have already been compensated for 4 hours of pay. 

Westmoreland filed on May 1, 1981, a motion for summary decision pursuant to 29 C.F.R. § 2700.64(a). Thereafter, I issued on June 12, 1981, an 

order providing for clarification in which I pointed out that applicable law 

required that a decision be issued denying UMWA's request for 1 week of compensation, but I noted in my order {p. 4) that the former Board of Mine 

Operations Appeals in its decision in Southern Ohio Coal Co., 4 IBMA 259 

(1975), aff'd, District 6, UMWA v. Interior Board of Mine Operations Appeals, 

S26 F.2d 1260 (D.C. Cir. 1977), had held that although the miners in that 

case were not entitled to a week of compensation, it appeared that they might 

be entitled to compensation for the shift on which the order was issued and 

for 4 hours of the "next working shift". Therefore, I requested that the 

parties submit additional information with respect to whether the orders 

involved in this proceeding had been modified or terminated and whether UMWA 

was seeking compensation of less than 1 week, assuming that its request for 

1 week would be denied in my contemplated order granting Westmoreland's 

motion for summary decision. 

773 
Several additional pleadings were filed by UMWA and Westmoreland in 

response to my order of June 12, 1981. The additional pleadings raised 

issues as to which the parties' positions were somewhat unclear. Therefore, 

I issued on October 9, 1981, a procedural order which specifically requested 

the parties to stipulate the facts on which their arguments were based and 

also asked that the parties submit additional arguments in support of their 

positions. In response to my order of October 9, the parties submitted on 

February 5, 1982, some joint stipulations. Thereafter, UMWA on February 19, 

1982, filed ~ motion for partial summary decision which Westmoreland answered 

on March 10, 1982, by filing a cross motion for summary decision. Finally, 

UMWA filed on April 6, 1982, a reply to Westmoreland's cross motion for summary decision. 

Section 2700.64(b) of the Commission's rules provides that a summary 

decision should be rendered when the pleading? show that there are no genuine 

issues as to any material facts. Although Westmoreland and UMWA make some 

arguments which show a difference in interpretation of the attachments to 

UMWA's motion for partial summary decision, there are no disputed issues as 

to the facts upon which my rulings will be based. Therefore, I find that 

the parties have shown that a summary decision should be issued in this proceeding pursuant to section 2700.64(b) of the Commission's rules. 

The joint stipulations, upon which my decision w.ill be based, are set 

forth below: 

1. The Ferrell No. 17 Mine is owned and operated by the Westmoreland 

Coal Company. 

2. The Ferrell No. 17 Mine is subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977 (the Act). 

3. The Administrative Law Judge has jurisdiction over these proceedings. 

4. At all times relevant herein, Westmoreland Coal Company'· at its 

Ferrell No. 17 Mine, and Local Union 1889, UMWA, were bound by the terms of 

the National Bituminous Coal Wage Agreement of 1978 (the Contract). A copy 

of the Contract is submitted with these stipulations as Exhibit A. 

5. In the early morning hours of November 7, 1980, an explosion 

occurred inside the Ferrell No. 17 Mine. 

6. At 7:30 a.m. on November 7, 1980, MSHA Inspector Eddie White issued 

Withdrawal Order No. 0668337 pursuant to section 103(j) of the Act. The 

order applied to all areas of the mine. 

7. Order No. 0668337 provided in full as follows: 

An ignition has occurred in 2 South off 1 East. This 

was established by a power failure at 3:30 a.m. and 

while searching for the cause of the power failure, 

smoke was encountered in the 2-South section. Five 

774 
\ employees in the mine could not be accounted for. [The 

area or equipment involved is] the entire mine. The 

following persons are permitted to enter the mine: 

Federal coal mine inspectors, West Virginia Department 

of Mines coal mine inspectors, responsible company 

officials, and United Mine Workers of America miner's 

representatives. 

8. At 8:00 a.m. on November 7, 1980, MSHA Inspector Eddie White issued 

Order No. 0668338 to the Westmoreland Coal Company pursuant to section 107(a) 

of the Act. The order applied to all areas of the mine. 

9. Order No. 0668338 did not allege a violation of any mandatory 

health or safety standards. It stated that the following condition existed: 

All evidence indicates that an ignition of unknown 

sources has occurred and five employees cannot be 

accounted for. 

10. Subsequent to the issuance of the above withdrawal orders, the 2 

South area of the mine was sealed off. 

11. Miners who were working on the 12:01 to 8:00 a.m. shift on 

November 7, 1980, were withdrawn from the mine when Westmoreland management 

became aware that an explosion had occurred. 

12. The miners who were withdrawn from th~ mine during the 12:01 to 

8:00 a.m. shift on November 7, 1980, were paid for their entire shift. 

13. Exhibit B is a list of the miners who were scheduled to work the 

day shift (8:00 a.m. to 4:00 p.m.) on November 7, 1980. Exhibit B also 

identifies each such miner's daily wage rate and the amount of compensation 

received by such miner for the day shift on November 7, 1980. Each such 

miner received at least four hours of pay. 

14. Westmoreland management did not contact any of the miners scheduled 

to work on the 8:00 a.m. to 4:00 p.m. shift (day shift) of November 7, 1980, 

in order to notify them not to report to work. 

15. On December 10, 1980, Order No. 0668337 and Order No. 0668338 

were modified to show the affected area of the mine was limited to the seals 

and the area inby such seals. 

16. Orders Nos. 0668337 and 0668338, as modified, have not been 

terminated and remain in effect. 

l7. Westmoreland Coal Company has not contested the issuance of Order 

No. 0668337 by initiating a proceeding under section lOS(d) of the Act. 

18. Westmoreland Coal Company has not filed an Application for Review 

of Order No. 0668338 under section 107(e) of the Act. 

775 
The Issue of the Day-Shift Miners' Entitlement to 4 Additional Hours of 

Compensation 

The first argument in UMWA's motion for partial};../ summary decision is 

that the miners who were scheduled to work the day shift after Order No. 

668337 was issued should receive 4 additional hours of compensation (Joint 

Stipulation No. 6, supra). UMWA bases its request for 4 hours of additional 

compensation on the fact that the miners who were scheduled to work the day 

shift following the issuance of Order No. 668337 receiv~d no notification 

that the Ferrell No. 17 Mine had been closed (Joint ·Stipulation No. 14, 

supra). Therefore, they reported for work as usual, but were turned away 

from the mine by State policemen (Exhibit No. 1 attached to UMWA's motion). 

Under the National Bituminous Coal Wage Agreement of 1978 (Exhibit A, Joint 

Stipulation No. 4, supra), Westmoreland was obligated to compensate the 

miners for 4 hours of pay because they had reported for work without having 

been given any notification that the mine was closed. J:.../ Westmoreland 

1/ The reason that UMWA's motion requests "partial" summary decision is that 

UMWA is contending that the miners are entitled to a week of compensation 

under section 107(a) Order No. 668338, but that order did not allege that 

Westmoreland had violated any mandatory health or safety standard, the latter 

allegation being a prerequisite under section 111 of the Act for the miners' 

entitlement to 1 week of compensation. Order No. 668338 has never been terminated and it is UMWA's position that, before the order is terminated, the 

inspector who wrote it will modify the order to cite one or more violations 

of the mandatory health or safety standards. ~ntil the inspector does modify 

the order to cite one or more violations, UMWA asks that I permit it to introduce evidence to show that the order should have cited a violation so that 

the miners may receive 1 week of compensation without further delay. If I 

deny UMWA's request to introduce evidence, UMWA, in the alternative, requests 

that I rule on the issues which are now ripe for decision and that I retain 

jurisdiction over the subject matter in this proceeding until such time as 

MSHA has completed its evaluation of its investigation of the ignition which 

occurred on the day the imminent-danger order was issued (Exhibit No. 3 

attached to UMWA's motion). 

'];_/ Article IX, Section (c), page 39, of the contract reads as follows: 

Unless notified not to report, when an Employee reports for work at his 

usual starting time, he shall be entitled to four (4) hours' pay whether or 

not the operation works the full four hours, but after the first four (4) 

hours, the Employee shall be paid for every hour thereafter by the hour, for 

each hour's work or fractional part thereof. If, for any reason, the regular 

routine work cannot be furnished, the Employer may assign the Employee to 

other than the regular work. Reporting pay shall not be applicable to any 

portion of the four hours not worked by the Employee due to his refusal to 

perform assigned work. Notification of Employees not to report means reasonable efforts by management to communicate with the Employee. 

776 
compensated the miners on the day shift with 4 hours of pay (Joint Stipulation No. 13, supra). UMWA says that the miners were entitled to the 4 hours 

of pay already received under the Wage Agreement and that they are entitled 

to an additional 4 hours of compensation under the second sentence of section 

111 3/ of the Act because they were the "next working shift" after Order No. 

668337 was issued. UMWA argues that even though the miners have received 4 

hours of compensation under the Wage Agreement, they would normally have 

worked an 8-hour shift_ if the mine had not been closed because of the issuance 

of Order No. 668337. UMWA argues that since the miners were idled by the 

order they should be paid for the remaining 4 hours of the "next working 

shift" as required by the second sentence of section 111. 

Westmoreland's cross motion (p. 6) refers to UMWA's claim for 4 additional hours of pay as "startling" in view of the fact that section 111 expressly states that the miners on the "next working shift" are entitled to 

"not more than four hours of such shift". Westmoreland acknowledges that my 

decision in Local Union 1374, District 28, UMWA v. Beatrice Pocahontas Co., 

3 FMSHRC 2004 (1981), sustained UMWA's claim for 4 additional hours of compensation in circumstances nearly identical to those involved in this proceeding. Westmoreland seeks to distinguish my holding in the Pocahontas case by 

observing that the operator in that case had a period of 5 hours within which 

to notify the miners on the "next working shift" that the mine was closed, 

but failed to do so. Westmoreland also points out that the operator in the 

Pocahontas case kept the miners on the "next working shift" at the mine site 

for 1-1/2 hours before advising them that there would be no work for them on 

that shift. In such circumstances, Westmoreland concedes that there may 

have been some merit in my agreeing with UMWA' s. contentions in that case 

that the miners were not idle during the first part of their shift and should 

therefore receive extra compensation over and above the 4 hours of reporting 

pay to which they were entitled under the Wage Agreement (Cross Motion, 

p. 10). 

Westmoreland's cross motion (p. 11) seeks to distinguish its situation 

from that of the operator in the Pocahontas case by emphasizing that Order 

No. 668337 was issued at 7:30 a.m., or only 1/2 hour before the midnight 

shift ended. Therefore, it is contended, Westmoreland's management did not 

have sufficient time, as the operator in the Pocahontas case did, within 

which to notify the miners not to report for work. Additionally, Westmoreland 

1./ The first two sentences of section 111 of the Act read as follows: 

If a coal or other mine or area of such mine is closed by an order 

issued under section 103, section 104, or section 107, all miners working 

during the _shift when such order was issued who are idled by such order shall 

be entitled, regardless of the result of any review of such order, to full 

compensation by the operator at their regular rates of pay for the period they 

are idled, but for not more than the balance of such shift. If such order is 

not terminated prior to the next working shift, all miners on that shift who 

are idled by such order shall be entitled to full compensation by the operator 

at their regular rates of pay for the period they are idled, but for not more 

than four hours of such shift. * * * 

77? 
emphasizes that it did not require the miners to remain at the mine for any 

length of time so that there are no facts in this proceeding which would 

support a finding that the miners were other than idle during the first part 

of their shift. 

Westmoreland is correct in some of its observations about differences 

in the facts between this proceeding and those which occurred in the 

Pocahontas case, but I do not find the factual differences to be great 

enough to cause me to rule differently in this proceeding from the way I 

ruled in the Pocahontas case. As to the non-idle argument, it is a fact 

that the miners on the day shift reported to work as usual (Exhibit No. 1 

attached to UMWA's Motion). When employees get into their vehicles and 

drive to work with the expectation of working 8 hours, they cannot be considered to be idle at that time. Undoubtedly, the miners obtained the "reporting pay" provision in the Wage Agreement after hard bargaining on the 

basis that it was unfair for them to expend time and money driving to work 

only to find that no work is available because the mine has been closed 

through no fault of the miners. The purpose of the "reporting pay" provision is to require operators to make "reasonable efforts" to notify the 

miners not to report for work (Footnote 2, supra). 

It is undoubtedly true that Westmoreland did not have sufficient time 

in this instance to notify the miners on the day shift that no work would be 

available because Order No. 668337 was issued at 7:30 a.m. on the midnight 

shift which ended at 8:00 a.m., but that is one of the reasons for the miners' 

entitlement to receive 4 hours of re.porting pay. No one at this time knows 

whether Westmoreland's management was at fault for the fact that an ignition 

occurred on Nov~mber 7, 1980, but the miners who got up and reported for work 

at 8:00 a.m. can hardly be held to be at fault for an ignition which occurred 

during "the early morning hours of November 7, 1980" (Joint Stipulation No. 

5, supra). 

Westmoreland's cross motion (p. 12) also contends that upholding UMWA's 

claim for an additional 4 hours of compensation will result in having the 

Act interpreted differently at a mine where UMWA is the miners' representative from the way the Act will be interpreted at a non-union mine. There 

is no merit to that argument because the Act is being interpreted to provide exactly what its language states, that is, the miners on the "next 

working shift" following the shift on which a withdrawal order is issued will 

be entitled to receive 4 hours of pay for the time they are idled by the withdrawal order. While it is true that the miners at a mine where the Wage 

Agreerrient is in effect will receive 4 hours of "reporting pay" if they are 

not notified that the mine is closed, that is a pay obligation which Westmoreland knows it will have to meet any time it fails to notify miners not 

to report for work. I do not believe that the miners on the day shift should 

be deprived of "reporting pay" under the Wage Agreement just because they 

also happen to be entitled to 4 hours of compensation for the 4 hours they 

were idled by issuance of Order No. 668337. 

Each of the parties in this proceeding has requested a summary decision, 

but Westmoreland states on page 11 of its cross motion that "* * * many of 

778 
them did not even report for work that day". Exhibit No. 1 to UMWA's motion, 

on the other hand, states (Paragraph 6): 

There were a lot of cars being turned back by the police 

and it seemed to me that most people scheduled to work my shift 

had driven to work as.usual. November 7 was payday and there 

are not usually too many people absent on payday. 

This case would have· been scheduled for hearing if the parties had not assured 

me that the case could be decided on the basis of stipulations. Therefore, 

my order will require Westmoreland to pay the miners on the day shift for 4 

hours of compensation. My order is awarding pay under the second sentence 

of section 111 which does not depend on the question of whether the miners 

actually reported for work on the day shift on November 7, 1980. Westmoreland's cross motion (p. 11) contends that the 4 hours of pay which the miners 

have already received was a discharge of its obligation under both the Wage 

Agreement and section 111 of the Act. Westmoreland further states that the 

Commission has indicated that it will not intrude into and interpret contractual relationships between miners and operators, citing Youngstown Mines 

Corp., 1 FMSHRC 990, 994 (1979). The Commission, however, amplified its 

Youngstown holding in Eastern Associated Coal Corp., 3 FMSHRC 1175, 1179 

(1981), to note that "* * *we are occasionally obliged to examine the 

parties' collective bargaining agreement which fixes pay rights". 

I have examined the Wage Agreement, as the Commission did in the 

Eastern Associated case, solely to rule upon the arguments which have been 

presented to me. It is up to UMWA to enforce the provisions of its Wage 

Agreement. My decision simply holds that the miners are entitled to 4 hours 

of compensation under section 111 because they were idled by Order No. 

668337 and that the payment by Westmoreland of 4 hours of compensation under 

section 111 does not prohibit the miners from claiming that they are also 

entitled to be paid 4 hours of "reporting pay" by virtue of the fact that 

they were not notified to stay at home on November 7, 1980, under Article 

IX, Section (c), of the Wage Agreement. In resolving their claim for payment under the Wage Agreement, the miners and Westmoreland will have to use 

their normal method of determining which employees are entitled to payment 

for having reported to work on the day shift on November 7, 1980. 

The Issue of the Miners' Entitlement Under Section 107(a) Order No. 668338, 

Exclusive of Arguments as to 1 Week of Compensation 

UMWA's motion for partial summary decision (pp. 6-8) contends that the 

miners who were scheduled to work the day shift on November 7, 1980, are also 

entitled to compensation under the first two sentences of section 111 of the 

Act because of the issuance of section 107(a) Order No. 668338 at 8 a.m. on 

November 7~ 1980, notwithstanding the fact that the miners on the midnight 

shift had already been withdrawn from the mine because of the issuance at 

779 
7:30 a.m. of secti6n 103(j) !±./ Order No. 668337 on November 7, 1980. In 

support of its compensation claims under the section 107(a) order, UMWA 

argues that it is a well-settled principle that miners are idled, for purposes of section 111, by the issuance of a section 107(a), or imminentdanger order, regardless of the fact that the miners may have been previously 

withdrawn from the mine. It is contended that the aforesaid principle has 

been applied regardless of whether the prior removal resulted from a voluntary action on the part of the operator or whether it resulted from a withdrawal order i~sued prior to the imminent-danger order. UMWA cites five 

cases in support of the foregoing argument, but I find that they do not 

really support its arguments. 

The first case cited by UMWA is Clinchfield Coal Co., 1 IBMA 31 (1971). 

In that case the operator voluntarily withdrew its miners after an explosion 

had occurred. On the succeeding shift, an-inspector issued an imminentdanger order under section 104(a) of the Federal Coal Mine Health and Safety 

Act of 1969 (1969 Act). The operator argued that since it had voluntarily 

withdrawn its miners before the withdrawal order was issued, the miners were 

not withdrawn by the order and that the compensation provisions of section 

llO(a) of the 1969 Act did not apply. The former Board of Mine Operations 

Appeals rejected the operator's argument and held that the purpose of a withdrawal order is not only to remove miners but also to insure that they remain 

withdrawn until the dangers have been eliminated. The Board said that "* * * 

[r]egardless of the sequence of events or the method by which the miners were 

originally withdrawn, a mine, or section thereof, is officially closed upon 

the issuance of an order pursuant to section 104, and the miners are officially idled by such order" (1 IBMA at 41). 

In this proceeding, the miners were "officially idled" by the issuance 

of the 103(j) order at 7:30 a.m. and the provisions of section 111 began to 

apply at 7:30 a.m. when the 103(j) order was issued. The miners on the day 

shift were, therefor_e, the "next working shift" under the second senten.ce of 

section 111 and were entitled to 4 hours of compensation for the period they 

were idled by the 103(j) order. 

UMWA also cites Consolidation Coal Co., 1 MSHC (BNA) 1668 (1978), in 

which Judge Broderick held that miners were entitled to 4 hours of compensation on the "next working shift" even though the operator had voluntarily 

withdrawn the miners before an imminent-danger order was issued. UMWA's 

!!./ Section 103(j) reads as follows: 

In the event of any accident occurring in any coal or other mine, the 

operator shall notify the Secretary thereof and shall take appropriate 

measures to prevent the destruction of any evidence which would assist in 

investigating the cause or causes thereof. In the event of any accident 

occurring in a coal or other mine, where rescue and recovery work is necessary, the Secretary or an authorized representative of the Secretary shall 

take whatever action he deems appropriate to protect the life of any person, 

and he may, if he deems it appropriate, supervise and direct the rescue and 

recovery activities in such mine. 

780 
motion cites anothe~ Consolidation case, 1 MSHC (BNA) 1674 (1978), in 

which Judge Fauver also held that the miners on the "next working shift" 

were entitled to 4 hours of pay despite the fact that the operator had 

voluntarily withdrawn the miners before the withdrawal order was issued. 

Neither of the Consolidation cases supports UMWA's claim in this proceeding 

because the miners in this proceeding were withdrawn by a 103(j) order 

which was still outstanding when the "next working shift" was scheduled to 

work. 

UMWA next cites Valley Camp Coal Co., 6 IBMA 1 (1976), in support of 

its argument that the miners on the day shift are entitled to 8 hours and 

the miners on the "next working shift" are entitled to 4 hours as a result 

of the issuance of the 107(a) order at 8 a.m. In the Valley Camp case, a 

mine fatality occurred about 7:30 a.m. on January 10, 1975, and the miners 

withdrew from the mine under their Wage Agreement. An inspector issued a 

section 103(f) order on January 10, 1975, at 11:15 a.m. On the same day, 

between 12:30 p.m. and 1:30 p.m., the inspector issued three withdrawal 

orders under section 104(c)(2) of the 1969 Act. Valley Camp argued that the 

103(f) order had idled the miners and that the other three orders had no 

effect. The former Board held that the sequence of issuance of the orders 

was not important because, for purposes of interpreting section llO(a) of 

the 1969 Act, "[t]he essence is the effective date of the issuance of the 

section 104 order of withdrawal" (6 IBMA at 6). The Board then stated that 

(6 IBMA at 7): 

* * * Idlement for purposes of section llO(a) began on January 10, 

1975, when the first 104(c) order was issued, and continued beyond 

January 14, 1975, when the 103(f) order wa's terminated, until 

January 15, 1975, the date of the termination of the three 104(c) 

orders of withdrawal. 

The former Board's holdings in the Valley Camp case completely refute 

UMWA's .contentions as to payment of compensation under the imminent-danger 

order issued in this proceeding. It should be noted that the compensation 

provisions of section llO(a) of the 1969 Act differ from the compensation 

provisions of section 111 of the 1977 Act in that withdrawal orders issued 

under section 103 of the 1969 Act did not trigger the compensation provisions of section llO(a) of the 1969 Ac~whereas withdrawal orders issued 

under section 103 of the 1977 Act do trigger the compensation provisions of 

section 111 of the 1977 Act. Consequently, if the facts involved in the 

Valley Camp case had occurred after the 1977 Act became effective, the 103(f) 

order would have been the order which officially idled the miners and that 

would have been the order under which they would have received compensation 

for the balance of the day shift and for 4 hours of the "next working shift". 

Since the 104(c) orders in the Valley Camp case were issued during the 

same shift as the 103(f) order, the miners' compensation rights under the 

first two sentences of section 111 of the 1977 Act would be the same as they 

were under the 1969 Act, but the former Board's holding that the "essence of 

the applicability of" of the compensation provisions "is the effective date 

781 
of the issuance of the" first order which triggers the compensation 

provisions, when applied to the facts in this proceeding, would require 

that the miners working on the midnight-to-8-a.m. shift be paid for the 

balance of their shift and that the miners on the "next working shift", or 

day shift, be paid for the period they were idled, not exceeding 4 hours 

(disregarding the "reporting pay" provisions of the Wage Agreement). 

It should also be noted that since the miners in the Valley Camp case 

withdrew voluntarily under the Wage Agreement after the occurrence of a 

fatality, the miners would, under the Commission's holding in Eastern 

Associated Coal Corp., 3 FM3HRC 1175 (1981), be entitled to no compensation 

whatsoever under the first two sentences of section 111 of the Act. In 

short, the Valley Camp case does not support any of UMWA's arguments in 

this proceeqing. 

Finally, UMWA relies on the Commission's decision in Peabody Coal Co., 

1 FMSHRC 1785 (1979), which also dealt with issues raised under the 1969 

Act. In the Peabody case, the inspector issued a 103(f) order which withdrew miners before an imminent-danger order was issued several days later. 

The Commission affirmed a judge's decision which had awarded the miners 

compensation for the balance of the shift during which the imminent-danger 

order was issued and for 4 hours of the "next working shift". Here again, 

if the facts involved in the Peabody case had arisen under the 1977 Act, 

the miners would have been paid for the balance of the shift on which the 

section 103(f) order was issued and for 4 hours of the "next working shift". 

In view of the differences between the 1969 Act and ·the 1977 Act, none of 

the cases cited by UMWA really support its argument that the miners on the 

day shift are entitled to be paid for the balance of their shift (8 hours) 

because the imminent-danger order was issued at 8:00 a.m. at the beginning 

of the day shift while the 103(j) order issued on the preceding shift was 

still in effect. 

· UMWA's motion (p. 7) also argues that the validity of the innninentdanger order has not been challenged in any review proceeding under section 

107(e) of the Act (Joint Stipulation No. 18, supra). UMWA cites Itmann 

Coal Co., 1 FMSHRC 1573 (1979), in which Judge Kennedy held as follows (1 

FMSHRC at 1578): 

The premises considered, I must conclude that the section 

107(a) order No. 0660641 was not defective merely because it 

was issued in an area and on equipment already covered by a 

section 103(k) control order. 

I fail to see the significance that the imminent-danger order's validity has 

to do with the merits of UMWA's contentions with respect to the imminentdanger order here at issue insofar as the first two sentences of section 111 

are concerned. UMWA's argument is that the miners on the day shift are 

entitled to 8 hours of pay, or "the balance of such shift" and that the 

miners on the afternoon, or "next working shift", are entitled to 4 hours 

of pay. UMWA's argument is based on the first two sentences of section 111 

782 
' (Footnote 3, page 5, supra). The first sentence specifically provides that 

the provisions of the first two sentences apply "* * * regardless of the 

result of any review of such order". Therefore, even if Order No. 668338 

were to be found to be invalid in a review proceeding instituted under section 107(e) of the Act, the miners would, nevertheless, be entitled to the 

compensation provided for by the first two sentences of section 111. 

UMWA's motion for partial summary decision and its reply to Westmoreland' s cross motion ·for summary decision never address the crucial question 

raised by its contentions as to imminent-danger Order No. 668338. That 

question is whether the miners may continually reinvoke the compensation 

provisions of the first two sentences of section 111 each time a new withdrawal order has been issued while the order which originally withdrew the 

miners is still in effect. The cases which UMwA cites and which have been 

discussed above arose under the 1969 Act which did not trigger the compensation provisions of section llO(a) of the 1969 Act when withdrawal orders 

were issued under section 103. As I have already shown, those cases are 

inapplicable to an interpretation of section 111 which is triggered by a 

withdrawal order issued under section 103. 

It is a fact that the miners were withdrawn in this proceeding when 

the inspector issued the first withdrawal order under section 103(j). The 

section 103(j) order has never been terminated and the miners received all 

the compensation to which they are entitled under section 111 because the 

miners on the midnight-to-8-a.m. shift received payment for the balance of 

their shift and the miners on day shift, or "next working shift" received 4 

hours of compensation (or will receive 4 hours .under this decision). As 

the Commission pointed out in its Eastern Associated decision, supra, 3 

FMSHRC at 1177, if"*** Congress [had] intended section 111 to create a 

source of independent pay or damages, it would not have so limited the compensation to only a portion of pay". I find that once the inspector issued 

his 103(j) Order No. 668337 at 7:30 a.m. on November 7, 1980, the compensation provisions of section 111 were triggered and that the miners are not 

entitled to any pay under the first two sentences of section 111 other than 

the pay for the balance of the midnight shift on which the 103(j) order was 

written and for 4 hours of the "next working shift", subject to whatever 

UMWA may be able to obtain additionally under Article IX of its Wage 

Agreement. 

In UMWA's reply (p. 2) to Westmoreland's cross motion for summary decision, UMWA cites legislative history to the effect that when Congress added 

section 103 orders to those orders which trigger the compensation provisions 

of.section 111, it was stated that the amendment was intended to be "a 

remedial provision which also furnishes added incentive for the operator to 

comply with the law". UMWA's reply (p. 3) argues further that Westmoreland 1 s 

attempt to escape any liability for payment under the imminent-danger order 

makes the amendment of sec~ion 111 to provide compensation for orders issued 

under section 103 a restrictive interpretation of section 111 which was not 

intended by Congress. UMWA again cites the Valley Camp case, supra, for 

the proposition that miners are considered to be idled by each order and 

783 
. ' that each order has to be terminated or modified before the miners may 

return to work. · 

I have already shown that the Valley Camp case does not support UMWA's 

arguments because the former Board held in that case that the first 104(c) 

order triggered the compensation provisions of section llO(a). Since that 

case was decided under the 1969 Act which did not provide for compensation 

to be paid for the 103(f) order which preceded the issuance of the 104(c) 

orders, the Valley Camp decision is inapplicable for interpreting section 

111 of the 1977 Act which does provide for compensation to be paid when 

orders are issued under section 103 of the Act. 

It is obvious that UMWA benefits by the amendment of section 111 to add 

section 103 orders to those which trigger the compensation provisions of the 

Act. In all circumstances in which an inspector issues a section 103 order, 

the miners get paid for the balance of the shift on which the 103 order is 

issued and for 4 hours of the "next working shift" if the order remains in 

effect for more than one working shift. The fact that the 1977 Act provides 

for compensation to be paid under section 103 orders is an "added incentive 

for the operator to comply with the law", just as Congress intended, but 

that "added incentive" is not a sufficient reason to hold that every time 

an additional order is issued, the provisions of section 111 may be reinvoked 

just as if the section 103 order had never been issued in the first instance. 

UMWA's reply (p. 4) to Westmoreland's cross motion also argues that 

there was a "nexus 'between the underlying reasons for the idlement and pay 

loss and the reasons for the order'" which the Commission held to be necessary for invoking the pay provisions of section 111 in its decision in the 

Eastern Associated case, supra, 3 FMSHRC at 1178. The Commission's decision 

in the Eastern Associated case denied a compensation claim because there was 

not a nexus between the miners' withdrawal under their Wage Agreement and 

the issuance of an order under section 103(k) of the Act. Although the 

nexus existed between the issuance of the imminent-danger order involved in 

this proceeding and the reason for the miners' withdrawal with respect to 

the imminent-danger order, that nexus also existed with respect to the preceding section 103 order which withdrew the miners in the first instance. 

The occurrence of more than one nexus with respect to two withdrawal orders 

does not, however, twice trigger the compensation provisions of the first 

two sentences of section 111 with respect to a single mine closing. 

I have not specifically referred in this portion of my decision to the 

well-reasoned arguments advanced by Westmoreland in its cross motion (pp. 12-

19) in opposition to UMWA's request for additional compensation under the 

first two sentences of section 111 with respect to imminent-danger Order No. 

668338, but my decision reflects that I am in agreement with most of Westmoreland' s arguments. I do not believe that I should further extend this 

lengthy discussion just to summarize arguments with which I am in general 

agreement. 

The Issue of UMWA's Claim for 1 Week of Compensation 

UMWA's motion for partial summary decision (pp. 9-11) seeks to have the 

784 
miners compensated' under the third sentence of section 111 'i/ for· 1 week of 

pay because of the issuance on November 7, 1980, of imminent-danger Order 

No. 668338. Before the miners can seek 1 week of pay when a mine is closed 

by an imminent-danger order, the order must cite the operator for failure 

to comply with a mandatory health or safety standard. Inasmuch as imminentdanger Order No. 668338, here involved, does not cite Westmoreland for failure to comply with any mandatory health or safety standard (Joint Stipulation 

No. 9, supra), the obvious conclusion is that the miners cannot claim compensation for 1 week of pay under section 111 of the Act. 

UMWA, nevertheless, requests that it be permitted to introduce evidence 

at a hearing, based on MSHA's investigation of the ignition which occurred 

on November 7, 1980, to show that the ignition was the result of Westmoreland's 

failure to comply with one or more mandatory health or safety standards. 

UMWA contends that MSHA's investigation will eventually result in the citing 

of Westmoreland for one or more violations, but UMWA explains that completion 

of MSHA's investigation has been delayed by the complicated nature of the 

explosion which resulted in the sealing of the 2 South Mains. UMWA's motion 

is accompanied by Exhibit No. 3 which is a letter from an MSHA official who 

states that Westmoreland does not plan to recover the 2 South Mains until 

about July 1983. Because of MSHA's inability to complete the underground 

portion of its investigation prior to July 1983, the MSHA official states 

that MSHA "* * * has determined that appropriate action under th'e Federal 

Mine Safety and Health Act of 1977 will go forward on the preliminary record 

[of its investigation]". 

Imminent-danger Order No. 668338 has neve~ been terminated (Joint 

Stipulation No. 16, supra), and UMWA argues that, before it is terminated, 

it will be modified by MSHA to allege a failure of Westmoreland to comply 

with one or more mandatory health and safety standards. In such circumstances, 

UMWA argues that it should be permitted to introduce evidence now to prove 

that MSHA's investigation of the ignition will eventually show that the 

imminent-danger order is coupled with an allegation that Westmoreland has 

failed to comply with a mandatory health or safety standard. UMWA contends 

that failure to allow it to prove Westmoreland's violations prevents the 

miners from being paid for at least a week of the time during which they 

were idled because of issuance of the imminent-danger order. 

In support of its argument that it be permitted to introduce evidence 

about the conditions surrounding the issuance of the imminent-danger order, 

'ii The first two sentences of section 111 of the Act are quoted in footnote 

3, page 5, supra. The third sentence of section 111 reads as follows: 

* * * If a coal or other mine or area of such mine is closed by an order 

issued under section 104 or section 107 of this title for a failure of the 

operator to comply with any mandatory health or safety standards, all miners 

who are idled due to such order shall be fully compensated after all interested 

parties are given an opportunity for a public hearing, which shall be expedited 

in such cases, and after such order is final, by the operator for lost time at 

their regular rates of pay for such time as the miners are idled by such 

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

785 
UMWA cites Judge Melick's decision in Royal Coal Co., 3 FMSHRC 1738 (1981), 

in which Judge Melick ruled that evidence pertaining to whether a violation 

had occurred could be introduced in that proceeding. UMWA argues that if it 

is permissible for the operator to present evidence in a compensation case 

as to whether a violation had occurred, UMWA should be permitted to introduce 

evidence in this compensation case to show that a violation has occurred. 

The Royal Coal case does not support UMWA's arguments for a number of 

reasons. First, the judge in the Royal Coal case had consolidated the compensation case with a civil penalty proceeding in which MSHA was seeking 

assessment of a penalty for the violation cited in the inspector's innninentdanger order. The judge could hardly prevent the operator and MSHA from 

presenting evidence with respect to whether a violation had occurred since 

that is the primary fact which must be proven by MSHA in a civil penalty 

case before a civil penalty may be imposed •. Additionally, the violation 

had been cited by an MSHA inspector and he was present at the hearing to 

testify in support of the violation which he had alleged in his order. 

In this proceeding, the inspector has not yet cited Westmoreland for 

any violation. Although UMWA argues that permitting it to introduce evidence, based on MSHA's investigation of the ignition, will not be substituting UMWA for MSHA in the enforcement of the Act, there could be no other 

result if I were to permit UMWA to introduce evidence to show that Westmoreland should' be cited for one or more violations of the mandatory health and 

safety standards. Moreover~ even if I were to permit UMWA to introduce 

such evidence, there is no way that such evidence could be used under the 

provisions of section Ill to require Westmorelaμd to compensate its miners 

for I week of pay because of the issuance of imminent-danger Order No. 

668338. 

The basis for the foregoing conclusion is that the third sentence of 

section Ill provides that the week of compensation can be awarded only after 

"such order is final". Inasmuch as Order No. 668338 is still in effect, it 

.cannot become a "final" order until MSHA has terminated it after. finding 

that the imminent danger no longer exists. Therefore, if a hearing were 

held and UMWA were to prove that Westmoreland ought to be cited for a violation of one or more mandatory health or safety standards, Westmoreland could 

not be ordered to pay a week's compensation until the order has become final. 

Consequently, UMWA's contention that it should not have to wait to obtain a 

week's compensation until MSHA has completed an evaluation of its investigation of the ignition is a futile complaint which no one can grant because 

section Ill simply does not provide for miners to be compensated for I week's 

pay until the order has become final. 

As Westmoreland points out in its cross motion for sunnnary decision 

(p. 23), the former Board of Mine Operations Appeals held in three cases 

(Clinchfield Coal Co., I IBMA 33 (1971), Southern Ohio Coal Co., 4 IBMA 259 

(1975), aff'd,. District 6, UMWA v. Interior Board of Mine Operatipns Appeals, 

526 F.2d 1260 (D.C. Cir. 1977), and Consolidation Coal Co., 8 !MBA 1 (1977)), 

that miners could not enlarge their right to compensation under section llO(a) 

786 
of the 1969 Act by\introducing evidence to alter the statutory basis on 

which the orders were originally issued by the inspectors who wrote them. 

Specifically, the former Board held in those three cases that UMWA could 

not be allowed to prove at a hearing that the imminent-danger orders in 

those cases were the result of an operator's unwarrantable failure to comply 

with mandatory health and safety standards. 

The only difference between the cases decided by the former Board and 

the instant case is that the third sentence of section 111 of the 1977 Act 

no longer requires, as the 1969 Act did, that an operator be cited for an 

unwarrantable failure before the miners idled by an unwarrantable-failure 

order could be awarded up to 1 week of compensation. Section 111 of the 

1977 Act has been broadened to permit recovery of up to 1 week of compensation if any order issued under either section 104 or section 107 cites a 

violation of a mandatory health or safety standard. UMWA's motion for 

partial summary decision (p. 11) argues that the equities require an exception to be made as to the requirement that an inspector's order cite a violation of a mandatory health or safety standard as a prerequisite for recovery of 1 week of compensation if, as alleged in this proceeding, the 

hazardous conditions existing at the time the imminent-danger order was 

issued prevent the inspector from making the necessary investigation to 

determine whether the imminent danger was caused by the oeprator's violation of a mandatory health or safety standard. 

In addition to the obvious legal barriers discussed above which require 

denial of UMWA's complaint for a week of compensation, there are many practical reasons for refusing to permit UMWA to present evidence of the ty~e 

it seeks permission to introduce in this proceeding. In the first place, 

Order No. 668338 is still in effect as to the 2 South Mains. In other 

cases, I have known inspectors to modify their orders to cite violations 

which were not known to exist at the time the orders were first issued. 

When MSHA's evaluation of the preliminary investigative record, which includes the testimony of 70 individuals (Exhibit No. 3 attached to UMWA's 

motion), has been completed, the inspector may modify Order No. 668338 to 

cite a violation of a mandatory health or safety standard. If Order No. 

668338 is eventually modified to cite a violation, UMWA's claim for a week 

of compensation may then be considered. §._/ 

6/ I do not agree with the argument in footnote 10, page 22, of Westmoreland' s cross motion to the effect that the third sentence of section 111 requires the week's compensation to be paid on the basis of the order as issued. 

The third sentence of section 111 simply requires that an order be issued 

under either section 104 or section 107 citing an operator for failure to comply with a mandatory health or safety standard. If the miners are idled for a 

week or more by such an order, the miners are entitled to claim l week's compensation. Both Westmoreland and UMWA are entitled to seek review of modifications of orders. Those applications or complaints may be filed within the 

same time limits which exist with respect to the original orders. Westmoreland cites no case and no provision in the Act which would bar UMWA from 

filing a complaint for compensation if the inspector eventually modifies 

Order No. 668338 to cite a violation of a mandatory health or safety standard. 

787 
A second prac\tical reason for denying UMWA' s request that it be 

allowed to prove that Order No. 668338 ought to have cited one or more violations, is that both sections 104(a) and 107(a) provide for inspectors to 

issue citations and innninent-danger orders, respectively, regardless of 

whether they are engaged in inspections or investigations. If the inspectors' 

investigation of the ignition in this proceeding should disclose that some 

or all of any violations they may observe during their investigation are unrelated to the cause of the ignition, they would write the violations as 

ordinary citations under section 104(a) of the Act. If the inspectors 

should determine that any violations they observe contributed to the cause 

of the ignition, they would then modify Order No. 668338 to cite the violation or violations as a part of the innninent-danger order. Consequently, it 

is not necessarily true, as UMWA alleges, that Order No. 668338 will eventually be modified to allege that the miners were withdrawn by an order 

which c;harged Westmoreland with failure to comply with a mandatory health 

or safety standard. 

A third practical consideration for not permitting UMWA to introduce 

evidence to prove that Order No. 668338 should have cited one or more violations is that MSHA would eventually have to propose a civil penalty for such 

violation. J_/ MSHA's civil penalty program is influenced by such matte~s as 

whether a given violation is associated with occurrence of one or more 

fatalities, as was the case in this proceeding. If the inspectors cite violations during the investigation of the ignition, but allege them in ordinary 

citations,- the Assessment Office will be unlikely to propose civil penalties 

for $UCh violations as large as it would propose if those same violations 

had been cited as a cause of the ignition and ~ssociated fatalities. Moreover, permitting UMWA to introduce evidence to prove that innninent-danger 

Order No. 668338 should have cited violations could result in a judge finding violations different from those which the inspectors may eventually 

allege. 

Request for Reservation of Decision as to 1 Week of Compensation 

UMWA's motion for partial summary decision (p. 11) asks, if I deny 

UMWA's request for permission to introduce evidence to prove that imminentdanger Order No. 668338 should have cited a violation of a mandatory health 

or safety standard, that I reserve a final decision on UMWA's request for 1 

week of compensation until such time as MSHA has completed its evaluation of 

fn 6 (continued) 

Sections 105(d) and 107(e)(l) of the Act specifically provide for the review 

of modifications of orders by both UMWA and an operator. Section 111 does not 

bar a complaint for compensation based on a modification of an order. In 

fact, as already observed, the week of compensation cannot be ordered to be 

paid until the order has become "final". 

l/ As noted above, the judge in the Royal Coal case, supra, cited in UMWA's 

motion for partial sunnnary decision (p. 9), consolidated the civil penalty 

proceeding with the compensation case. 

788 
its investigation of the cause of the ignition and has terminated imminentdanger Order No. 668338 with or without modifying it to allege a violation 

of a mandatory health or safety standard. 

There are many legal and practical reasons for denying UMWA's request 

for reserving my decision on the issue of the miners' request for 1 week 

of compensation. First, even UMWA is requesting that I rule upon MSHA's 

requests for compensation under the first two sentences of section 111. 

When my decision on UMWA's requests under the first two sentences of section 111 is ready to be issued, the decision must be forwarded to the Commission for issuance by the Commission's executive director. The Commission has already reversed me once for assuming that I could issue a decision which failed to dispose of all pending issues (Council of Southern 

Mountains v. Martin County Coal "'CQ";p., 2 FMSHRC 3216 (1980)). 

Additionally, section 113(d)(2)(C) of the Act requires that when a 

decision is ready for issuance, the judge will forward to the Commission 

all of the record which is before him at the time he decides to issue the 

decision so that, if a petition for discretionary review is thereafter 

filed with respect to the decision, the Commission will have before it the 

complete record which was before the judge when he rendered his decision. 

In short, the Commission and I cannot_simultaneously have jurisdiction 

over the record or subject matter in a given proceeding. 

Finally, as I have already observed, there is nothing to prevent UMWA 

from filing a complaint for a week of compensation under the third sentence 

of section 111 if and when MSHA does modify outstanding imminent-danger 

Order No. 668338 to allege one or more violations of the mandatory health 

and safety standards by Westmoreland. For the foregoing reasons, UMWA's 

request for deferral or reservation of my decision with respect to any 

compensation which the miners may eventually be entitled to receive under 

the third sentence of section 111 must be denied. 

WHEREFORE, for the reasons hereinbefore given, it is ordered: 

(A) UMWA's motion for partial summary decision filed February 19, 

1982, is denied insofar as it seeks any compensation under section 111 of 

the Act with respect to imminent-danger Order No. 668338, including UMWA's 

request that it be permitted to introduce evidence to prove that Order No. 

668338 should have cited one or more violations of the mandatory health or 

safety standards by Westmoreland. 

(B) UMWA's motion for partial summary decision is denied insofar as 

it requested me to defer or reserve my decision with respect to UMWA's 

alleged right to compensatinn for 1 week of pay under the third sentence 

of section 111 because of the issuance of imminent-danger Order No. 668338. 

(C) UMWA's motion for partial summary decision is granted to the 

extent that it seeks 4 hours of compensation for the miners who were 

scheduled to work the day shift on November 7, 1980, following the issuance 

789 
of Order No. 668337 on the preceding midnight-to-8:00-a.m. shift under 

section 103(j) of the Act. 

(D) The grant of 4 hours of compensation in paragraph (C) above is 

made with the express understanding that payment by Westmoreland of 4 hours 

of compensation under the second sentence of section 111 does not preclude 

the miners from any compensation they may be due under Article IX, Section 

(c), of the National Bituminous Coal Wage Agreement of 1978. 

(E) The grant of 4 hours of compensation in paragraph (C) above 

should be made with payment of interest at 12 percent per annum from 

November 7, 1980, to the date of payment for-the reasons given in my decision in Beatrice Pocahontas Co., 3 FMSHRC 2004 (1981) at 2013, provided 

that the parties do not ultimately agree that the 4 hours of compensation 

already paid because of the issuance of Order No. 668337 was paid under 

section 111 instead of under Article IX of the Wage Agreement. If the 

parties agree that the additional compensation is due under the Wage Agreement, the question of payment of interest is to be determined by the parties 

under applicable labor law instead of pursuant to any directions by me in 

this proceeding. 

(F) The miners to whom additional compensation is due under either 

section 111 or under the Wage Agreement are those who are listed in Exhibit 

B of Joint. Stipulation No. 13, supra. 

(G) Westmoreland's cross motion for summary decision filed March 10, 

1982, is granted to the extent that it sought denial of UMWA's request for 

compensation under innninent-danger Order No. 668338 and denied insofar as 

it opposed UMWA's request for additional compensation which has been 

granted in paragraph (C) above. 

(H) UMWA's amended complaint filed on November 9, 1981, is denied 

except with respect to the last prayer in the complaint which is granted 

in paragraph (C) above. · 

Distribution: 

~e.Jra-_#~~ 

Administrative 

Richard C. Steffey 

Law Judge 

~ 

(Phone: 703-756-6225) 

Mary Lu Jordan, Attorney, United Mine Workers of America, 900 -

15th Street, NW, Washington, DC 20005 (Certified Mail) 

Timothy M. Biddle; Esq., and John T. Scott III, Esq., Attorneys for 

Westmoreland Coal Company, Crowell & Moring, 1100 Connecticut Ave., 

NW, Washington, DC 20036 (Certified Mail) 

Assistant Solicitor, Mine Safety and Health Administration, 4015 

Wilson Boulevard, Arlington, VA 22203 

790 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 A~R 29 \9&1 

SECRETARY OF LABOR, Complaint of Discrimination 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. SE 80-31-DM 

Complainant 

v. Florida Mining· & Concrete Co. 

METRIC CONSTRUCTORS, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

William R. Berger, Esq., Offic~ of the Solicitor, U.S. 

Department of Labor, Atlanta, Georgia, for Complainant MSHA; 

Richard A. Vinroot ,. and J. Dickson Phillips, Esqs., Fleming, 

Robinson, Bradshaw & Hinson, Charlotte, North Carolina, for 

Respondent; 

Sidney L. Matthew, Esq., Tallahassee, Florida, for 

individual Complainants. 

Judge Lasher 

PROCEDURAL BACKGROUND AND STATEMENT OF THE CASE 

This proceeding was initiated on November 19, 1979, by the filing of a 

discrimination complaint by Ray Marshall, Secretary of Labor on behalf of 

seven alleged discriminatees, Joe Brown, Johnny Denmark, Jerry McGuire, Van T. 

"Dago" McGuire, AKA "Terry" McGuire, David Mixon, John Parker, and Wesley 

Parker (herein collectively the Complainants). The Secretary's complaint, as 

amended, alleges that the seven individual Complainants were discharged in 

violation of section lOS(c)(l), of the Federal Mine Safety and Health Act of 

1977, ~O·u.s.c. § 801 et~·, ~$u'pp. III 1979) (herein the Act) and seeks 

as a remJdy::x~refor reimbursem~nf of all wages and benefits lost together 

"with interest from the time of their discharge" at the rate of 9 percent 

per annum, and expungement of pertinent personnel.records. In addition,· the 

Secretary prays that a civil penalty be assessed against Respondent pursuant 

to section 110 of the Act. 

Respondent's motion to dismiss filed November 28, 1979, for the reason 

the complaint "was not based upon a written determination within 90 days of 

the (miner's) complaint, nor filed immediately thereafter, as required by the 

791 
Act, or within 30 days thereafter as required by the regulations" was denied 

\ 

at the hearing (I Tr. 34-59). 1/ The bench ruling that such rules of limitation are not jurisdictional is-here affirmed. Local Union No. 5420, UMWA v. 

Consolidation Coal Company, 1 FMSHRC 1300 (September, 1979). Respondent 

neither established or contended that any prejudice resulted from any delay of 

the Secretary in processing the complaint of the seven alleged discriminatees. 

Although Respondent initially challenged the jurisdiction of the 

Commission both over the subject matter and over the Respondent as a party, 

at the commencement of hearing the parties stipulated such jurisdiction 

(I Tr. 23, 28). 

The Secretary asks that a penalty be assessed against Respondent should 

a violation be found to have occurred. Section llO(a) of the Act requires 

that, in addition to the remedies provided in section 105(c), a penalty be 

assessed if the mine operator is found to be in violation of section 105(c). 

The parties were notified on numerous occasions that all aspects of this 

matter, including penalty assessment if appropriate, would be heard and 

decided at the same time. While certain procedural regulations, 29 C.F.R. § 

2700.25 through 29 C.F.R. § 2700.30, require initial administrative processing of proposed penalty assessments by the Secretary, such seem to apply only 

to violations of health and safety standards determined after issuance of 

orders and citations during inspections and investigations pursuant to section 104 of the Act. These regulations are the procedural implementations of 

sections 105(a) and (b) of the Act. It is thus found that such regulations 

are not applicable to discrimination proceedings arising under section 105(c) 

of the Act. Otherwise piecemeal litigation artd resultant inconvenience and 

unnecessary costs to the parties will result. .f.11 facets of the cause of 

action pleaded in the Secretary's complaint were litigated and are decided 

herein. 

To establish a prima facie case of discrimination under section 105(c) 

of the Act a complainant must establish by a preponderance of the evidence 

(1) that he engaged in a protective activity and (2) that the adverse action 

was motivated in part by the protected activity. Pasula v. Consolidation 

Coal Company, 2 FMSHRC 2786 (1980); rev'd on other grounds, 663 F.2d 1211 

(3rd Cir. 1981). Complainant must establish these elements by a preponderance 

of the. evidence, Secretary of Labor v. Richardson, 3 FMSHRC 8 (January, 1981). 

PRELIMINARY FINDINGS --~---------

The sev'Em Complainants, journeyman welders, were hired as temporary 

employees to work the night shift at Respondent's repair project at a cement 

plant (mill) owned by Florida Mining and Materials Corporation, Cement 

Division, located 10 miles north of Brooksville, Florida. They were to work 

1/ A bifurcated hearing was held on December 15, 16, 1980, and May 5, 6, 

l981. References to the December hearing transcript will be "I Tr. " 

and the May transcript "II Tr. " 

792 
12 hours a day, 7 days a week for a period of 4 weeks commencing February 27, 

1979, on a "pre-heater" and a kiln located at the plant which had been 

shut down while the repairs were being made. Their shift commenced at 

7:00 p.m. and ended at 7:00 a.m. · The seven Complainants were hired, and did 

in fact work, as a crew. 

The Respondent, Metric Constructors, Inc., is a subcontracting firm 

which performs work in several states. At the times and places material 

herein, its supervisory structure consisted of: Russ Jones, project 

superintendent; Thelbert Simpson, night superintendertt; Fox Simpson, night 

foreman; Bob Davis, night foreman; Arnold Crotts, day foreman; Dan Buie, day 

foreman; and Norman Graham, day foreman. 

During the first three nights of their employment (February 27, 

February 28, and March 1, 1979) the seven Complainants welded on and around 

the kiln (a large cylinder· locate~ about 30 feet off the ground). The first 

three nights were uneventful. On their fourth night, March 2, they and about 

14 others were assigned to perform welding work on the pre-heater (a large 

vertical, silo-like structure) at locations known as "vortex ducts," which 

were 180-200 feet above the ground. Complainants were to weld on Vortex "A". 

Welding on the three other Vortexes, "B," "C," and "D" had been completed and 

was accomplished during the daytime. 

After reporting to work prior to 7:00 p.m., the Complainants were told 

by Thelbert Simpson to report to Bob Davis, who was their foreman for that 

shift. 2/ Their duties were to weld on inlet fee,d· shoots near the top of 

' the pre-heater approximately 180 feet above t~e ground. 

" 

The seven Complainants proceeded with Night Foreman Davis to inspect 

their working area by climbing a set of stairs to it. Their working area was 

pointed out by Bob Davis from a platform. The Complainants could not reach 

it~ however, because there was a gap of at least 6 to 8 feet between the 

platform where they were standing and the actual working area. 

It was then determined that four of the Complainants (Joe Brown, Terry 

McGuire, Jerry McGuire and John Parker) would weld on the duct work, while 

the other three would pull leads (power supply for the welding machines) and 

act as relief when the welders got tired. Since there was no direct access 

to the duct work, the four welders were lifted to the work site in a basket ~ ' by a cra~e. 1'he other three,Co1kplainants pulled leads to within 6 to 8 feet 

of the· duct ·w~tk ·and stood on a .. , piatform handing supplies to the welders as 

needed. The platform had no fence or handrail around it. Once the four 

Complainants reached the duct work in the basket, they found there were no '- scaffolding or handrails around the work site nor were there any padeyes on 

2/ Two of the Complainants did not testify. David Mixon was killed in an 

automobile accident in November 19 80 and Johnny Denmark was serving overseas 

in the United States Navy at the time of the hearings. 

793 
\ which to hook their safety belts. They were thus required to weld padeyes 

before they could attach their safety belts. Terry McGuire and Joe Brown 

went inside the inlet feet shoot that was being welded onto the pre-heater, 

while Jerry McGuire went on top of the duct, and John Parker worked from an 

unsecured one-board scaffold below, the duct. 1/ 

The four Complainants in question worked for approximately 2 hours under 

conditions which they considered unsafe. Jerry McGuire, who was on top of 

the duct, was being blown about by heavy winds (I Tr. 99, 234 315, 317, 334). 

John Parker, who was below the duct on the one-board· scaffold, was being 

"burned" by the welding fire from above (I Tr. 91, 150-151, 155) as were 

Terry McGuire and Joe Brown inside the duct (I Tr. 90-91, 233-234, 314-315). 

The lighting at the work site was insufficient and by 7:30-8:00 p.m. on 

March 2, 1979, it was park outside (I Tr. 92, 101-102, 231; II Tr. 118). The 

four welders working on the duct were able to reach the platform where the 

other three were standing only by walking around on a ring which encircled 

the pre-heater (I Tr. 318). 

Shortly after 9:00 p.m., all seven Complainants went on break. They 

decided that because of what they believed to be unsafe and hazardous working 

• 

3/ The lack of scaffolding and handrails were verified by Bob Davis, the 

crew foreman (Exhibit C-17B), Louis Shaw (II Tr. 117), Robert Porter (II Tr. 

124), and Thelbert Simpson (II Tr •. 91). Respondent attempted to establish 

the existence of scaffolding and handrails by introducing photographs of its 

1980 project (II Tr. 65). No photographs of the 1979 project were introduced 

although they were available (II Tr. 65-66). Terry McGuire testified in this 

connection that: 

"Joe and I had talked about it needing some more scaffolding, that we 

needed a lot more scaffolding. We needed a fire blanket in there and we were 

going to see if we could get some. • • I know that my brother had to come 

off of the duct work because the wind was blowing, and he almost got blown 

off of it. There was no scaffold on top of the duct work at all." (I Tr. 

315). 

Foreman Davis, in his written statement, described the situation as 

follows: 

"I told them that the only way they could do the welding would be to 

hook up or hang out with their safety ropes. I think one of the welders 

mentioned something about there\being no scaffold. I didn't know any of.the 

seven welde~~Jby name but th~y ·are the seven men that left at one time, 

March 2, 1979. I told them that we didn't have a scaffold when we welded the 

other 3 (B, C, and D) vortexs. I personally supervised the welding in B, C9 

and D vortexs. However, the welding on B, C, and D vortexs was done during 

the day. The only scaffolding on the preheater was a ring about a foot from 

the top of vortex A. The other ring of scaffolding was only temporary and 

had been taken down prior to March 2, 1979." 

Significantly, Davis also made this admission: "I told the welders 

before they left on the evening of March 2, that I wouldn't do the job now 

either because I'm too old, I am 53 years old. I also told them that I had 

done jobs that risky and even more risky over the years." 

794 
conditions Terry McGuire and Joe Brown would talk to ·Bob Davis about improving the conditions by getting additional lights, fire blankets, scaffolding, 

cables for handrails and jacks for scaffolding boards at the work site. 

Once on the ground, and after their break, Joe Brown, Terry McGuire and 

Jerry McGuire, on behalf of all seven men (I Tr.· 99, 137, 139, 153, 235, 336, 

348-349), sought out Night Foreman Bob Davis and registered their complaints 

about the unsafe and hazardous working conditions, i.e., no handrails, no 

scaffolding, and no lights and to request angle irons-:- scaffold jacks, 

scaffold boards, fire blankets, cable for handrail and lighting (I Tr. 

101-103, 315, 319, 325, 336, 348). While they were so engaged, the other 

four Complainants returned to the platform located 6 to 8 feet from the duct. 

After receiving the safety complaints' from the th:~ Complainants Bob 

Davis found Night Superintendent Thelbert Simpson in the office trailer and 

advised him that the welders wanted a scaffold and handrails before they 

would weld Vortex "A." Simpson and Davis then agreed that Russ Jones, the 

project superintendent, should be called. Davis, in a written statement 

(Exhibit 17-B) gives this account of the telephone conversation: 

"I called Jones and told him that the welders wanted a 

scaffold and handrails before they welded vortex A. I told 

Jones that the welders didn't want to hang out on a safety 

rope because they didn't feel like it was safe. Jones said 

that it was safe on the other three vortexes and that we 

didn't have any scaffolding then. I asked Jones what if the 

welders didn't want to weld hanging on the.ropes. Jones said 

that if I didn't have any other welding for them to do, to 

tell them to go home. I dialed the phone, talked to Jones, 

and hung up, while just Thelbert Simpson and I were in the 

office trailer. Thelbert Simpson never talked to Jones during 

my call to Jones."!!._/ 

With respect to this same conversation, Project Superintendent Russ Jones 

testified that he had the conversation with Simpson, not Davis: 

Q. Now I want to get to the statement that you had with 

Thelbert Simpson that you testified to. What time was it 

again that you got a call? 

A. ~t was somewhere around nine or just a little bit 

after nine. I don't recall what time it was. 

!:./ A direct and material conflict appears in the record between Respondent's 

witnesses as to this conversation. Both Thelbert Simpson and Russell Jones 

testified that the conversation in question was between Simpson and Jones, 

not Davis and Jones. Davis did not testify. His version appears in an 

unsworn statement. This conversation is critical to the resolution of the 

ultimate issues in this matter because it was in the process of this conversation that Respondent decided what to do about the safety complaints. 

795 
Q. And as best as you can recall, what did Mr. Simpson 

say to you? 

A. He told me that Terry -- I believe it was Terry --

and Joe Brown and refused -- they said they was not going to 

work on that pre-heater tower, and then I asked him, I said, 

"Thelbert, do you have anything else on the ground that they 

can do." He said, "I have nothing on the ground. No work 

at all. I have.two men working on the downcomer duct and 

that's all I've got," and I said, "Well, explain to them 

that's all the work that we have for them to do·." 

* * * * * * 

Q. Well, is that what you were told, somebody wanted 

to quit? 

A. Yeah, he said they had quit. 

Q. Oh, he said they had quit? 

A. Yeah, and he said if he quit, then he was going to 

take the rest of them with him. 

Q. Who's that? 

A. Terry and I believe -- I'm not saying whether 

Joe Brown was in there or not. 

Q. I'm getting a little confused. Now go back and 

tell me what Thelbert Simpson said to you. 

A. He told me the two men, Terry and Joe Brown, if it 

was -- I'm not sure -- said they were not going to work on 

that tower up there and they was going to quit. 

Q. Let me ask you something. Did you ask why they 

didn't want to work? 

A. No. Why should I ask my superintendent why he 

dic~'t want to work when he called and told me the man was 

going co quit? 

(II Tr. 75-77). 

* 

Thelbert Simpson, the third management witness to testify for Respondent, 

gave this account of the pertinent events: 

Q. Tell the Court in your own words what happened that 

night as between you and Mr. Terry McGuire and who ever 

approached you that night? 

796 
A. Well,\ after nine o'clock, the break, Bob Davis 

brought Joe Brown, Terry, and I believe Jerry was with him, 

too 

Q. Jerry McGuire? 

A. Jerry McGuire. 

Q. Yes, sir, go ahead and proceed. 

A. Brought them right under the pre-heater, just right 

beside the pre-heater and said that they wasn't going back up 

there to do no more welding, and I said, "Why," and they 

complained about not enough light, and I said "I'll get you 

more lighting up there," and when I told them that, they 

said they weren't going back up there unless I build them a 

scaffold, and weld -- and I build it up as they weld it up, 

and I told them it would take me longer to build the scaffold 

then it would for them to do the welding. 

Q. All right, sir. Then what happened? 

A. They said they wasn't going back up there. Terry or 

Jerry one asked me were they fired, and I told them No, they 

wasn't fired, and Bob said, "We might as well call Russ." So 

I told Russ -- I told Bob if he would call Russ -- I don't 

know if it was long distance or not -- get through the operator, I would talk to Russ, so Bob dialed the phone and got 

Russ, and I talked to Russ. 

Q. What did you say and what did Russ say? 

A. I told Russ that Jerry and them refused to do the 

work and wouldn't go back up there to do the work on the 

pre-heater. And Russ asked him did he have anything to do 

on the ground for him to do. I told him I didn't have 

anything else on the ground to do, or nothing else, but just 

those two guys that were on the ground. And he said, "Let 

them go home and tell them to come back in the morning and 

I'll give them the checks." 

Q. All right, sir. Did Russ say anything to you about 

firing them or terminating them? 

A. No. 

Q. What did you say to the men after talking to Russ 

Jones? 

A. I told them Russ said to tell them to go home and come 

back and pick up their checks the next morning. 
Q. Did ypu tell them they couldn't do the work or that 

you would not permit them to continue to do the work? 

A. No, I did not tell them they couldn't do the work. 

Q. Did you make it clear to them that they could go do 

that work as far as you were concerned? 

A. · Yeah. .. Q. How did you tell them that? 

A. Well, they asked me three times and I told them I 

didn't have anything else for them to do, and they asked me 

three times before I went to the office were they fired, and 

I told them no, but I didn't have any work for them to do on 

the ground. 

Q. Were you willing for them to go back up and do the 

work where they had come from? 

A. Yeah. 

Q. Were they willing to do it? 

A. No, they said they wasn't going back. 

Q. Did they said anything to you abo~t safety? 

A. One of them I believe said it was unsafe. 

* * * * * * 

Q. Am I correct that you testified, Mr. Simpson, that 

you did not actually physically see the area where the seven 

men were supposed to work that night? 

A. No, I did not. 

* 

* * * * * * * 

q.; Did you tell Russ why these men didn't want to work? 

A. Yeah. 

Q. Why? What did you tell them? 

A. I told them that they asked me, and I said, "They 

refused to work," and Russ said, "Ask if they didn't have 

anything else to do on the ground, anything else for them to 

cio." 

798 
Q. Well, did you explain to him at any time why they 

didn't want to do the work? 

A. No. 

Q. Did you mention to him about the scaffolding? 

A. No. 

Q. Or about the lighting? 

A. No. 

* * * * * * 

THE COURT: * * * 

In the telephone conversation with Russ, why didn't you 

tell Russ the reason why these welders refused to work? 

* 

THE WITNESS: Well, actually I actually didn't exactly 

know why they refused to work. They just told me they wasn't 

going back out there on there to do it. The only thing they 

complained about to me was the lighting and for me to build 

them a scaffold. 

(II Tr. 85-94). 

Following the telephone conversation between Simpson and Jones, Davis 

told the Complainants that Russ Jones had said that "they would have to weld 

the vortex like the other three were welded by hanging off of the safety 

ropes." Davis also told the Complainants that if they refused to do the 

work as it was, they "would have to go home" and they "could come back in 

the morning and get their money.' 

Jerry McGuire then returned to the platform to retrieve the four other 

Complainants who were waiting to find out what would be done about the working 

conditions and to tell them they had been fired or words to that effect • .J_ ' (I Tr. 109, 125, 154-155, 15~, '1.'8~, 237). On the way from the platform to 

the stairs 0r 'elevator, Dave Mixon slipped on an unsecured plank that was 

being used as a walkway and nearly fell 180 feet to the ground (I Tr. 

170-176, 189, 340). 

While Jerry McGuire was retrieving the other four Complainants, Joe 

Brown and Terry McGuire requested that Bob Davis pay them immediately for the 

work they had done that week. Bob Davis could not find the timekeeper and 

Complainants were instructed to return the following morning. 

799 
On the morning of March 3, 1979, the seven Complainants returned to the 

work site and received their checks. They were asked to sign a termination 

slip (Exhibits C-18A-G), on which "voluntary quit" had been checked. Each 

Complainant refused to sign the slip. 

The Respondent had no other welding or alternate work available for 

Complainants on the night of March 2, 1979, and so informed them. On 

March 3, all of Respondent's temporary welders were assigned to work on the 

pre-heater and all remained there until the last three or four days of their 

four-week term when· some were brought down t.o weld on the kiln. During that 

four-week term, there were no accl.dehts, no other complaints, no investigations and no citations arising from the conditions that the complaining 

miners considered unsafe. 

The temporary welders hired by Respondent completed their work during 

the four-week period for which they had been employed (II Tr. 66) and most 

were terminated at the end of that term [II Tr. 60]. Several, who were also 

"iron workers," were retained for one or two weeks thereafter to perform 

structural iron work which the Respondent performed for Florida Mining [II 

Tr. 66-69]. The Complainants were not hired for this work and would not have 

been retained for its performance under any circumstances [II Tr. 59-60]. 

The Complainants filed charges with MSHA on April 27, 1979, alleging 

that the events of March 2, 1979, constituted "discriminatory discharges" 

under the 1977 Act. MSHA conducted an investigation of the Complainants' 

charges which concluded on July 12, 1979. That investigation made no determination as to the merits of the Complainant's contentions or whether the 

conditions they complained of violated MSHA standards. MSHA notified 

Complainants of its determination by letter dated October 18, 1979. 

DISCUSSION, ULTIMATE FINDINGS AND CONCLUSIONS 

The Respondent, while conceding in its brief that the refusal of the 

seven Complainants to perform work was a protected activity because based 

on a reasonable and good faith belief that unsafe conditions existed, contends that Respondent's only duty to them was not to take adverse action or 

discriminate against them on account of that refusal. Respondent correctly 

argues that there was no automatic legal duty imposed on it to agree with 

the miners, to change work conditions to their satisfaction, or to continue 

to pay them where alternative ~~rk was not available while a safety dispute 

was in d.e ;.irucess of being resolved. Respondent maintains that a "standoff" 

occurred on the night of March 2, 1979, in which both sides, in good faith 

disagreement, acted within their rights. ii 

ii Which of Respondent's versions of the critical telephone conversation is 

to be credited, the Davis version or the Jones-Simpson version is of considerable importance. Since both Jones and Simpson testified under oath and 

were subject to cross-examination their account of the conversation carries 

more weight than does that of Davis, which appears in an unsworn written 

800 
While Respondent argues that a mine operator has no duty to an employee 

(1) to investigate allegedly dangerous conditions, or (2) to attempt to 

dispel the miner's fears through explanation or through changing job conditions to the miner's satisfaction, it also alleges that holding such view is 

unnecessary to the disposition of this case because the Respondent had a 

reasonable, good faith belief that the conditions were safe based on its prior 

knowledge of the working conditions. 2_/ 

The Respondent then urges the view be adopted, that where the complaining 

miners exercised their rights in refusing to perform the work which they 

considered unsafe and the mine operator exercised its corresponding right in 

refusing to make the changes demanded by the miners, that each side had the 

option to act as it did, and the right of neither superseded that of the 

other. In such equipoise, according to Respondent, no liability should be 

imposed upon the mine operator unless it commits an "adverse action" or 

"discriminates" against the miners in that process. As Respondent points out, 

the Supreme Court, in Whirlpool Corp. v. Marshall, 100 S. Ct. 883, 894 (1980), 

in interpreting an antidiscrimination provision of the Occupational Safety 

and Health Act has held that "an employer discriminates against an employee 

only when he treats that employee less favorably than he treats others 

similarly situated." According to Respondent, there is no basis for finding 

that it took adverse action or discriminated against the seven C.omplain ants 

since: 

fn 5 (continued) 

statement. The numerical logic that two witnesses testifying under oath are 

less likely to be mistaken than one witness giving a written statement compels 

acceptance of the Jones-Simpson version. 

From the testimony of both of Respondent's supervisory personnel who 

testified, Simpson and Jones, it appears that at the time that Jones made the 

decision to give Complainants the option of returning to work or being terminated he had only been told by Simpson that the men were quitting and he had 

not been advised that· they had made safety complaints. 

The implausibility of and conflict in the testimony of Respondent's 

witnesses is particularly damaging to its case. It was in this telephone 

conversation that Project Superintendent Jones decided on what action should 

be taken with respect to Complainants. According to both Jones and Simpson, 

the merits of. Complainant's list, \>f unsafe conditions was not discussed, nor 

was the ;;ubien,.t even brought up. ''This detracts from Respondent's contention 

that its belief that the working conditions were safe was a reasonable one. 

6/ Respondent relies on the rather tenuous testimony of Project 

Superintendent Jones and Night Superintendent Simpson for this proposition 

(II Tr. 34-37; 93-95). This testimony, for the most part, is to the effect 

that prior to the "shutdown" for repairs Respondent prepared the areas_where 

welding was to be performed by installing scaffolding. Due to its quality 

and generality, Respondent's evidence in this regard is not sufficient to 

overcome the more precise description of unsafe conditions existing on 

March 2 by Complainan.ts. 

801 
(1) The only welding work that was available on March 2, 

1979, was that which the seven miners refused to 

perform; 

(2) All but two of the other welders employed that night 

worked .under similar conditions; and 

(3) The seven Complainants were given the option and 

encouraged to continue to perform that wor~ but 

refused to do so. 

Nevertheless, the testimony of Complainants concerning the various 

hazards which existed on the evening of March 2, 1979, was consistent, credible and detailed, and I find it sufficient to establish that such hazards 

resulted in an unsafe working environment. As further noted below, the 

testimony of Respondent's witnesses was neither as plausible or reliable as 

that of Complainants. Although Respondent contends that others worked under 

simil .ar conditions without complaint, the record among other things, 

(a) reflects no comparison between Complainants' working conditions and that 

of other welders on other vortexes, nor (b) does it indicate that other 

welders had been asked to work that night without adequate lighting and 

scaffolding. Respondent's rebuttal for the most part was oblique and did not 

directly meet Complainant's evidence which credibly established the hazardous 

nature of the conditions complained of. The five Complainants who testified 

all considered the conditions unsafe and Respondent presented no challenge to 

their good faith in entertaining such belief. Indeed, Project Superintendent 

Jones conceded that he did not perceive the seven Complainants "as individuals 

who wanted to go out and just get a couple of days' work and buy a bottle" as 

had been the case with others he had encountered (II Tr. 78). 

Respondent's position is undermined considerably by its failure to 

investigate any of the specific complaints lodged. Respondent's position that 

its supervisors were already aware of the working conditions. prior to the 

time the complaints were made and thus had no need to investigate was not 

sufficiently developed and was too general to account for this failure. Thus, 

the Complainants' testimony with respect to insufficient lighting, the need 

for fireblankets, etc., were not satisfactorily addressed by Respondent's 

witnesses-possibly because the complaints were not investigated and evaluated 

at the time. This failure may··,al,so ·explain why foreman Simpson, if his 

account .•f y~"'μts is accepted, -did not inform Project Superintendent Jones 

that such complaints had been made. 

The belief of the Complainants that the various conditions previously 

described were unsafe and their consequent refusal to work is found to be 

reasonable and fully justified by the circumstances. Their refusal to work 

is found, independent of Superintendent Jones' concession as to their 

sincerity, to constitute an activity protected under the Act. Consolidation 

Coal Company (David Pasula), supra. 

802 
The means employed by Complainants to have three of their member communicate their safety complaints and refusal to work under unsafe working conditions to Respondent's management personnel at approximately 9 p.m. on March 2, 

1979, was sufficient to invoke the protection of the Act. The communication 

by three of Complainants on behalf of the other four is sufficient to protect 

the rights of those who did not themselves speak directly to management. Not 

every miner involved in a work refusal need make or attempt to make such a 

complaint. A communication from one may be deemed to be on behalf of all 

concerned, even if not announced in such terms. Northern Coal Company, 

4 FMSHRC 126 (1982); Local Union 1110, UMWA v. Consolidation Coal Company, 

2 FMSHRC 2812 (1980). · 

There being substantial evidence in the record that Complainants' working conditions were unsafe, that Complainants were reasonable in their belief 

that such conditions were unsafe, that Complainants properly complained to 

Respondent about such conditions, and that Complainants refused to work 

because of such conditions, absent some affirmative defense, a prima facie 

case under Pasula, supra, is completed by a showing that Complainants were 

discharged or otherwise discriminated against because of such protected work 

refusal. 

Respondent's defense is that a state-of-mind equilibrium existed and 

that both parties were reasonable and sincere in their conflicting views of 

the condition of the workplace. In the Commission's ongoing process of 

formulating rules to implement its holding in Pasula the rights and duties of 

a mine operator-whose belief that the complained-of conditions are safe is 

equally reasonable to that of the complaining mtners-have as yet to be fleshed 

out. Where the evidence is substantial one way or the other that the working 

conditions are either safe or unsafe, such state of the record ordinarily 

would be dispositive as to which party is reasonable in their belief. To 

determine whether there is substantial, probative evidence in this record to 

support Respondent's contention it is first necessary to more precisely state 

the rule it urges as gleaned from its arguments: Where a mine operator reasonably believes working conditions are safe and a miner reasonably believes 

the conditions are unsafe, and no alternative work is available, the mine 

operator has no obligation (a) to change the conditions to the miner's satisfaction, or (b) to continue the employment of the complaining miner who 

refuses to work under existing conditions. Such a rule appears fair and 

sound where there are no contractual procedures to be followed and where 

the reco~d is.not sufficient to ''pe,'rmit a determination whether the working .. . .. , .. conditions were safe or not. However, as previously noted, the preponderance 

of the reliable ev~dence in the record indicates that the conditions 

Complainants were asked to work under were unsafe. Respondent's efforts to 

be seen as reasonable in its view that the conditions were safe are undermined by its actions: it not only failed to investigate the complaints to 

determine their validity but its foreman, Simpson, failed to advise Project 

Superintendent Jones that safety complaints had been registered and were the 

reason for the work refusal. Jones, who made the ultimate decision to inform 

Complainants to either return to work or pick up their paychecks, was unaware 

that safety complaints had been registered. _Even by viewing the evidence in 

803 
the light most favo,rable to Respondent, it is clear that the Respondent, 

because of communications failure within its own supervisory structure, 

incorrectly concluded that Complainants were insincere in their concern for 

safety hazards and merely desired to quit. Acting on such erroneous assumption, and on the unjustified belief that the working conditions complained of 

were safe, Respondent gave Complainants the unacceptable alternative of working under unsafe conditions or being terminated. Although perhaps not in 

abject bad faith, Respondent's out-of-hand rejection of the complaints was 

also unreasonable. The option given Complainants to either work-at considerable risk or be terminated was tantamount to discharging them for their 

engagement in a protected activity. See NLRB v. Ridgeway Trucking Company, 

622 F.2d 1222 (5th Cir. 1980). The effect, not the particular form, of the 

language used by the employer determines whether an employee has been discharged. Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047 (2d Cir. 1980). 

In short, Respondent's affirmative defense--based on theoretical rights 

not yet considered or delineated by the Commission-was not supported by the 

confused, sometimes implausible, sometimes contradictory evidence presented 

by its own supervisory personnel. 

It is concluded that the Complainants engaged in a protected work 

refusal and that adverse action, in the form of termination of their employment, occurred as a result. In these circumstances, where .the mine operator's 

belief that the working conditions are safe is unreasonable and the miners' 

belief that such conditions are unsafe is reasonable, the discharge of complaining miners for such work refusal is discriminatory and a violation of 

the Act. 

BACK PAY 

General Principles 

Specific principles governing the determination of back pay in proceedings arising under section lOS(c) of the Act and the allocation of burdens 

of proof are in the process of formulation. In Secretary v. Northern Coal 

Company, supra, the Federal Mine Safety and Health Review Commission noted 

that the Mine Act's provisions are modeled largely on section lO(c) of the 

National Labor Relations Act and adopted the National Labor Relations Board's 

definition of back pay as it has been developed over the years. The 

Commission also noted.its prior,r~lings that so long as the remedial orders 

employe~. effectuate the purposes of the Act, both it and its judges possess 

considerable"' d'iscretion in fashioning remedies appropriate to varied and 

diverse circumstances. Since both the pleadings and the evidentiary record, 

insofar as they relate to the remedies available to Complainants including 

back pay are imprecise, the necessity to exercise considerable discretion 

and make reference to NLRB burden of proof principles has arisen. J_/ 

7/ From the beginning of this proceeding great emphasis was placed on 

developing the record with respect to all aspects of a discrimination proceeding including back pay issues. Further efforts to obtain additional 

evidence would appear to be futile. 

804 
The amount of \back pay properly awarded is ordinarly the sum equal to 

the gross pay the employee would have earned but for the discrimination less 

his actual net interim earnings. Northern, supra. 

One of the fundamental principles of evidence having particular applicability in this proceeding is that the burden of going forward normally falls 

on the party having knowledge of the facts involved. See United States v. 

New York, N. H. & H.·R. R. CO., 355 U.S. 253, 256 n. 5, 78 S.Ct. 212, 

2 L.Ed.2d 247 (1957). In the context of this case the Complainants, who were 

temporary employees to begin with, after their discharge returned to the area 

where they resided some 120 miles distant from the s:ite of the Brooksville 

project (II Tr. 137-138). Knowledge of their attempts to obtain employment 

in that area would be exclusive to them. 

While the sole burden on the government is to show the gross back pay 

due the Complainants, J.H. Rutter Rex Mfg. Co. v. N.L.R.B., 473 F.2d 223 

(5th Cir. 1973); Marine Welding & Repair Works v. N.L.R.B., 492 F.2d 526 

(5th Cir. 1974), where an employer raises the affirmative defense, as here, 

that the discharged employees failed to mitigate their loss by refusing to 

search for other employment 8/ the discriminatees are required to establish 

that they engaged, as a minimum, in "reasonable exertions" to find interim 

employment. N.L.R.B. v. Arduini Mfg. Corp. 394 F.2d 420, 423 (1st Cir. 

1968); O. C. & Atomic WRKS INT. UNION, AFL-CIO v. NLRB, 547 F.2d 575 (D.C. 

Cir., 1976). --

Where the employer contends that several discriminatees did not all make 

the required effort to mitigate their damages, the willful idleness issue 

must be determined with respect to each employee separately considering the 

record as a whole. N.L.R.B. v. Rice Lake Creamery Co., 365 F.2d 888 (D.C. 

Cir. 1966). This individualized, rather than group, approach is dictated by 

the nature of the mitigation rule which is generally recognized today. 

N.L.R.B. v. Madison Courier, Inc., 472 F.2d 1307 (D.C. Cir. 1972). Once the 

gross amount of back pay has been established the burden is upon the employer 

to establish facts which would negative the existence of liability to a given 

employee or which would mitigate that liability. N.L.R.B. v. Brown & Root, 

Inc., 311 F.2d 447 (8th Cir. 1963). An employee who has been discriminated 

against is not entitled to back pay to the extent that he fails to remain in 

the labor market, refuses to accept substantially equivalent employment, 

fails diligently to search for alternative work, or voluntarily quits alternative employment without good ~~ason. N.L.R.B. v. Madison Courier, Inc., 

supra; -~~R~~: v. Maestro Plasti~s Corp., 354 F.2d 170, 174 n. 3 (2d Cir. 

1965), cert denied, 384 u.s. 972, 86 s.ct. 1862, 16 L.Ed.2d 682 (1966). 

~/ Failure to mitigate damages by refusal to search for alternative work or 

by refusal to accept substantially equivalent employment is an affirmative 

defense. N.L.R.B. v. Mooney Aircraft, Inc., 366 Fo2d 809 (5th Cir. 1966). 

What proof Respondent presented on this question was obtained through crossexaminat ion of the Secretary's witnesses. 

805 
General Evidence Applicable to All Complainants 

At the time of their discharge, Complainants were working a 12-hour day, 

7 days a week, and were expected to work an additional 24 days and 9 hours • .2_/ 

Van Terry McGuire was paid $11.25 per hour and the six remaining Complainants 

were paid $10.25 per hour (I Tr. 24, 144). Although the Secretary, in his 

brief, asks for an award of overtime pay, I find no evidentiary support in the 

record therefor and none is cited by the Secretary. 

John Robinson, project manager at E. M. Watkins Company, Perry, Florida, 

testified that E. M. Watkins was the only company in.the Ferry, Florida, 

area (home of the seven Complainants) that engaged in industrial construction 

and had a need for this type of welder (II Tr. 133). He also testified that 

during March and April 1979, there were no jobs for welders in the Perry area 

and that the area was saturated with available welders. 

JOE E. BROWN 

This Complainant was unable to obtain work after being discharged (II 

Tr. 133, 144-145, 149) and after taking a second mortgage on his home on 

April 16, 1979, went into the crabbing business. I find that after his first 

week of unemployment he made reasonable efforts to obtain other employment 

but was unable to do so because of the negative employment situation in the 

area of his residence (II Tr. 133-134). Complainant Brown, however, testified that he did not look for work until one week after he returned home 

from the Brooksville (Metric Constructors) project. Since a discharged 

employee must make some reasonable, if not diligent, efforts to mitigate his 

backpay claim by seeking equivalent work, J.H. Rutter Rex Manufacturing Co., 

Inc., v. N.L.R.B., supra, I conclude that Brown did not sufficiently engage 

in such effort by waiting one week before looking for work. 10/ Accordingly, 

a period of 7 days is deducted from the maximum period (24 days and 9 hours) 

Brown would· have continued to work at Respondent's Project had he not been 

discharged. Complainant Brown is therefore found entitled to back pay for 

213 hours (17 12-hour days plus an additional 9 hours on March 2) at the 

rate of $10.25 per hour, or a total award of $2,183.25. 

JOHN WALLY PARKER 

This Complainant applied for work at E.M. Watkins Company, Perry, 

Florida, the day following his discharge (I Tr. 166). He went to work there 

commencing August 16, 1979, (II :fr. 136). Other than the foregoing, the 

.2_/ Complainants were temporary employees hired to work 4 weeks. They worked 

and were paid for 3 days .and 3 hours. 

10/ The employer is not under the severe burden of establishfng that a 

particular discriminatee would have located suitable interim employment had 

he only made the required effort, before the back pay liability may properly 

be reduced. "[W]ith such diligence lacking, the circumstances of a scarcity 

of work and the possibility that none would have been found even with the 

use of diligence is irrelevant." American Bottling Co., 116 NLRB 1303, 1307 

(1956). 

806 
record is barren in connection with the back pay issue. While the Secretary 

has carried its burden of showing the back pay due this Complainant, i.e., 

his regular hourly wages for 24 12-hour days and 9 hours, Respondent has 

failed to carry its affirmative burden of establishing any facts which would 

either negative the existence of such liability or mitigate it. The only 

inferertce which can be drawn from the paucity of evidence available is that 

Complainant immediately sought work after being discharged. 11/ 

Accordingly, he is found entitled to an award of $3,044.25 in back pay 

(297 hours at the rate of $10.25 per hour). 

JAMES WESLEY PARKER 

This Complainant, a resident of Perry, Florida, testified that he was 

drawing unemployment benefits when he went to work on the Metric job at 

Brooksville, Florida, that he "didn't work enough: to drop it" and that he 

made no efforts to obtain other employment for a period of "a month, maybe 

three or four weeks" after he left the Metric job. He testified at another 

juncture in his testimony, however, that he did notapply for other work 

until July, 1979, (I Tr. 200-204). 12/ It is conciuded that this Complainant 

failed to make sufficient efforts tO-obtain other employment after being 

discharged to qualify for an award of back-pay. To be entitled to backpay, 

an employee must at least make "reasonable efforts to find new employment 

which is substantially equivalent to the position [which he was discriminatorily deprived of] and is suitable to a person of his background and 

experience." N.L.R.B. v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 575 

(5th Cir. 1966); Southern Silk Mills, Inc., 116 NLRB 769, 773 (1956), 

remanded, 242 F.2d 697 (6th Cir.), cert. denied~ 355 U.S. 821, 78 S.Ct. 28, 

2 L.Ed.2d 37 (1957). 

"We do not * * * [believe] that it must appear that [the discriminatee] 

could have procured such a job (i.e., suitable interim employment) before he 

can be found to have incurred a willful loss by the failure to apply for it. 

It is incumbent on a claimant to seek a job for which he has extensive 

experience." Knickerbocker Plastic Co., 132 NLRB 1209, 1219 (1961). 

Accordingly, an award of back pay for this Complainant is denied. 

11/ While the liable employer ~ay attempt to demonstrate that a particular 

employee fa.;..lcd to make the requisite "reasonable efforts to mitigate [his] 

loss of income * * * [the employee is] held * * * only to reasonable exertions 

in this regard, not the highest standard of diligence." N.L.R.B. v. Arduini 

Mfg. Co., supra. "[T]he principle of mitigation of damages does not require 

success; it only requires an honest good faith effort * * *·" N.L.RoB• v. 

Cashman Auto Co., 223 F.2d 832, 836 (1st Cir. 1955). 

12/ After a recess, Mr. Parker changed his testimony and indicated that he 

had inquired about employment at one firm on the Monday morning following his 

discharge. After careful scrutiny of this portion of his testimony (I Tr. 

211-221), I conclude that it is not sufficiently tr~stworthy to be credited. 

80'1 
DAVID MIXON 

This Complainant was killed in an accident in November, 1980 (II Tr. 

152). The only evidence bearing on the back pay issue is that Mr. Mixon 

commenced employment at White Construction Company on or about April 9, 1979 

(II Tr. 154). I infer therefrom, there being no showing to the contrary, 

that Mr. Mixon had no other employment prior to April 9, 1979, and is thus 

entitled to an award of back pay for the full period remaining on his 

original term, i.e., 3 weeks, 3 days, and 9 hours. See N.L.R.B. v. Pilot 

Freight Carriers,-Inc., 604 F.2d 375, 378 (5th Cir. 1979), reaffirming the 

principle that "'when an employer's unlawful discrimination makes it 

impossible to determine whether a discharged employee would have earned 

backpay in the absence of discrimination, the uncertainty should be resolved 

against the employer.'" 

Although no challenge was made to Mixon's entitlement based on the 

theory that any back pay entitlement was extinguished by his death (I Tr. 

28, 29), some consideration of this question appears in order. The Federal 

Mine Safety and Health Act contains no provision with respect to whether the 

claim of an employee for back pay survives his subsequent death. With some 

few exceptions the federal statutes contain no express provisions for 

survivability of causes of action in the federal courts, (1 Am.Jur. 2d, 

Abatement, Survival and Revival, § 112, p. 128), and where no specific provision for survival is made by federal law the cause survives or not according to the common law. At common law the basic principle of survivability 

is'that survivable actions are those in which the wrong complained of affects 

principally property and property rights, incluc;Ung monetary interests, and 

in which any injury to the person is incidental, whereas nonsurviveable 

actions are those in which the injury complained of is to the person and any 

effect on property or property rights is incidental. Pierce v. Allen B. 

Du Mont Laboratories, Inc., 297 F.2d 323 (3d Cir. 1961); 1 Am. Jur. 2d 

Abatement, Survival and Revival, S 51, p. 86. 

It is axiomatic that the Act is remedial and clothed in the public 

interest. Since the remedy provided for a discriminatee represents reimbursement of a lost property right,.!.·~·' back pay, it is found to survive his 

death and to be subject to an award in an action brought by the appropriate 

government agency on his behalf. 

Accordingly, the deceasedj David Mixon, is found entitled to an award 

of gross back pay of $3,044.25 (24 12-hour days and 9 hours, or 297 hours, at 

the rate of $10.25 per hour). Said amount with interest and other entitlements shall be paid to decedent's estate or heirs as determined by the 

Secretary. 

JOHNNY DENMARK 

The only evidence in the record, other than the general information 

applicable to all Complainants, is that he was hired by the E.M. Watkins 

Company of Perry, Florida,on September 4, 1979,and that this was the first 

808 
time he was employed after March 2, 1979 (II Tr. 136). As noted previously, 

Mr. Denmark was in military service on overseas duty and was unavailable to 

testify when the hearings were conducted. As to this Complainant, the 

Secretary carried his burden by showing the gross back pay due, but the 

Respondent failed to present evidence in mitigation. 

Accordingly, Mr. Denmark is awarded the sum of $3,044.25 representigg 

297 hours at the rate of $10.25 per hour, the amount he would have earned 

during the remainder of his 4-week employment term had he not been discharged. 

JAMES JERROLD McGUIRE 

Mr. McGuire testified that he applied for work at E.M.Watkins the 

Monday or Tuesday following his discharge and was told work would be avilable 

for him in two or three weeks. During the interim he worked for his brother 

welding trailers and was earning sufficient money that he did not look for other 

work. Neither his actual earnings or hourly rate was shown but his hourly rate 

was less than $10.00 per hour for an unspecified number of hours. Thus, a precise 

interim earnings figure cannot be calculated, necessitating the exercise of the 

broad discretion approved in Northern Coal Company, supra. Accordingly, based 

on Mr. McGuire's entire testimony (I Tr. 243-248) it is concluded that he worked 

for a period of 3 weeks during the interim period at the rate of $5.00 per 

hour for 40 hours per week. 13/ These interim earnings totalling $600.00 

will be deducted from the gross back pay ($3,044.25) he would have earned 

during the remainder of the four-week term for which he was employed. 

Respondent contends that the Secretary is barred from recovery on 

Mr, McGuire's behalf because he refused a position.with equal or higher pay 

in Louisiana during the interim period (II Tr. 247-249). When asked why he 

was unwilling to go to Louisiana for two or three weeks, McGuire replied that 

he saw no reason to expend the money "to go out there (and) to rent a place 

for two or three weeks" and "lose that much money." (I Tr. 248) A discharged employee is not necessarily obliged to accept employment which is located 

an unreasonable distance from his home. See N.L.R.B. v. Madison Courier, Inc., 

supra, and cases cited therein. McGuire's refusal to go to Louisiana is found to 

be reasonable in view of the distance involved, the fact that he had another, 

even though less-remunerative, job, and his belief that a job opening would 

occur at E.M. Watkins Company in the near future. McGuire's failure to accept 

employment in Louisiana is not found to be a wilful! refusal to mitigate his damages so as to extinguish his entitlement to back pay. 

According~j,' this Complainant is found entitled to an award of net back 

pay in the sum of $2,444.25. 

13/ The rate of $5.00 per hour was paid to another Complainant who obtained 

welding work in the area of Perry, Florida, after being discharged (I Tr. 

342-343). 

809 • 
VAN TERRY McGUIRE 

This Complainant made reasonable effort to obtain employment after being 

discharged (I Tr. 342-343) and obtained a welding job at Shawls Welding in 

Perry, Florida, approximately 2 weeks after being discharged where he was 

paid $5.00 per hour. The number of hours he worked per week was not established. It is found that he worked 40 hours per week and that he received 

such interim.earnings for the last week and 4 days of the 4-week employment 

period he was hired for by Respondent. Mr. McGuire's interim earnings are 

therefore calculated to be $360.00 which is to be deducted from the gross 

back pay ($3,341.25) he would have earned from Respondent at the rate of 

$11.25 per hour during the remainder of the 4-week term for which he was 

employed. 

Accordingly, this Complainant is awarded net back pay in the sum of 

$2,981.25. 

BACK PAY AWARD 

Complainants are awarded back pay in the amount shown below with interest 

thereon at the rate of 12 percent per annum 14/ compounded annually from 

March 3, 1979, until paid. 

JOE E. BROWN 

JOHN WALLY PARKER 

• JAMES WESLEY PARKER 

DAVID MIXON 

JOHNNY DENMARK 

JAMES . .JERROLD McGUIRE 

VAN TERRY McGUIRE 

EXPENSES OF HEARING 

$2,183.25 

$3,044.25 

NONE 

$3,044.25 

$3,044.25 

$2,444.25 

$2' 981.25 

The Secretary has neither pleaded, argued, briefed, or presented evidence 

with respect to an award reimbursing Complainants for their expenses in 

attending the hearing. 15/ However, in Northern Coal Company, supra, which 

it should be noted was decided after the hearing and after briefs were filedp 

it was held that an award for hearing expenses is an appropriate, and I 

believe required, form of relief and that the failure to pray for such relief 

is no bar to an award therefor. '•ttaving considered the circumstances in which 

the hearing& -~~'re held, after revi~wing the award of the administrative law 

judge which was upheld in Northern, and in view of the past difficulty of 

obtaining precise information from the parties by stipulation or otherwise 

14/ See 12 percent interest award of Judge James A. Broderick in Bradley v. 

Belva Coal Company, 3 FMSHRC 921 (April 10, 1981); North Cambria Fuel Co., 

Inc. v. N.L.R.B. 645 F.2d 177 (3rd Cir. 1981). 

15/ The Complaint does contain the standard catch-all prayer for "such other 

and further relief as may be appropriate." 

• 

810 
during the hearing process, it is concluded (1) a reasonable approach is 

called for, (2) that further hearing would be unproductive and also counterproductive in view of the additional costs which would be incurred by all 

parties, and (3) an award of $125.00 for each day of hearing attended by a 

Complainant is fair and reasonable reimbursement. 

Accordingly, hearing expenses are awarded to each of the following 

Complainants for the.number of days and in the amounts indicated after their 

names: 

Joe E. Brown (3 days) 

Van Terry McGuire (2 days) 16/ 

John Parker (3 days) 

James Wesley Parker (3 days) 

James JJarrold McGuire (3 days) 

ASSESSMENT OF PENALTY 

$375.00 

$250~00 

$375.00 

$375.00 

$375.00 

Based on prior findings, the discharge of Complainants on March 2, 1979, 

is found to be a violation of section 105(c)(l) of the Act. The action of 

Respondent in discharging the seven Complainants is found to constitute one 

violation for which one penalty will be assessed. 

The Respondent is a construction contractor which does business in 

several states. On the Florida Mining and Materials Corporation repair 

project involved in these proceedings, Respondent employed approximately 

22 welders. Respondent which has no previous history of committing violations under the Act, has made no contention that payment of a penalty would 

jeopardize its ability to continue in business. 

Based on my findings that Respondent failed to investigate the various 

safety complaints registered by Complainants, I conclude that under all the 

circumstances including the fact that working at high altitude at night is 

intrinsically hazardous to begin with, such failure constituted reckless 

disregard of the safety of the miners involved. The malfunction in Respondent's communications process at the management level which resulted in the 

safety complaints not being reported to the Project Superintendent resulted, 

in turn, in his decision to order Complainants to return to unsafe work or be 

discharged. This latter failure constituted the process by which Complainants 

were d is~harged in violation of'•the Act. In total, Respondent is found to 

have take'n 2· :iegligent, unreasonable approach to the safety matters in 

question. 

The violation is found to be serious since, in giving Complainants the 

option to return to unsafe working conditions or be discharged, an unusual 

exposure to hazard was created-. The hazards posed included death or serious 

injury from falling 180 or more feet to. the ground. The clarity of the 

choice given the Complainants, no wages or danger, is especially pernicious. 

16/ Mr. McGuire did not attend the 1st day of hearing, December 15, 1980. 

811 
From the Respondent's standpoint, its management personnel who testified 

left the distinct impression of a lack of sophistication and experience in 

safety matters. Their lack of diligence in pursuing the safety complaintsonce raised to a clear-cut decision to force Complainants back to work or be 

discharged-resulted more from a focus on getting the job done than from a 

callous disregard for Complainants' safety or safety matters in general. 

In further mitigation of the amount of penalty which should be assessed, 

is the considerable amount of back pay which has been awarded here. The 

D.C. Court of Appeals in Madison Courier, Inc. pointed out that one of the 

purposes of.an award of back pay is the furtherance of the public interest 

by deterrence of illegal acts in the future. See also Northern Coal Company, 

supra. Since approximately $17,000.00 in back pay liability has been levied, 

the deterrent effects here of a larger penalty are rendered nugatory. 

Balancing the above factors, a penalty of $1,000.00 seems appropriate 

and is assessed. 

ORDER 

1. All proposed findings of fact and conclusions of law not incorporated 

in this decision are rejected. 

• 

2. On or before 30 days from the date of this decision, Respondent is 

directed to pay to the Secretary of Labor: 

a. The sums of $16,740.40 with interest thereon after Federal .and 

State withholding at the rate of 12 percent per annun from March 3, 1979 

until paid, and $1,750.00, representing the total back pay and hearing 

expenses, respectively, due the individual Complainants, said sums to be 

disbursed by tpe Secretary in accordance with the instructions previously 

indicated. 

b. The sum of $1,000.00 as a civil penalty for the violation found 

to have occurred. 

3. Respondent shall expunge from its personnel records and files any 

and all refei;:_el).Ce to the discha:r~~ of Complainants and the circumstances 

attendent thereto. 

Michael A •. Lasher, Jr., Judge 

812 
Distribution: 

William H. Berger, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1371 Peachtree Street, N.W., Room 339, Atlanta, GA 30309 

(Certified Mail) 

Richard A. Vinroot, Fleming, Robinson, Bradshaw & Hinson, P.A., 

2500 First Union Plaza, Charlotte, NC 28282 (Certified Mail) 

Sidney L. Matthew, Attorney at Law, 135 South Monroe Street, 

Suite 100, P.O. Box 10023, Tallahassee, FL 32302 (Certified Mail) 

813 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

UNITED STATES STEEL CORPORATION, 

Contestant, 

v. 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Respondent. 

) 

) CONTEST OF CITATION PROCEEDING 

) 

) DOCKET NO. WEST 80-386-R 

) 

) MSHA Order No. 339479 

) 

) Mine: Atlantic City Ore Operation 

) ~~~~~~~~~~~~~~~~~~ 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

UNITED STATES STEEL CORPORATION, 

Respondent. 

) CIVIL PENALTY PROCEEDINGS 

) 

) DOCKET NO. WEST 81-58-M 

) MSHA Case No. 48-00145-05014 

) 

) DOCKET NO. WEST 80-160-M 

) MSHA Case No. 48-00145-05008 H 

) 

) Mine: Atlantic City Ore Operation 

) ~~~~~~~~~~~~~~~~~~ 

DECISION AND ORDER 

APPEARANCES: 

Phyllis K. Caldwell, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

For the Petitioner 

Louise Q. Symons, Esq. 

United States Steel Corporation 

600 Grant Street, Room 6044 

Pit~sburgh, Pennsylvania 15230 

For the Respondent 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

Pursuant to the provisions of the Federal Mine Safety and Health Act 

of 1977 (hereinafter the "Act"), United States Steel Corporation (hereinafter "USS") was issued Citation No. 338867 on May 15, 1979. (Case No. 

814 
WEST 80-160-M). A violation of 30 CFR § 55.12-14..!/ was alleged. The 

citation stated. that the high voltage power cable to the No. 4 shovel was 

being moved by hand. No protective equipment or personal protection was 

used. 

On June 12, 1980, Citation No. 339479 was issued alleging a violation 

of the same regulation. Specifically the citation stated " ••• an employee 

was observed handling an energized 4,160 volt power cable to company drill 

1f6. The employee was wearing leather gloves only." In connection with 

this citation USS timely filed a "Notice of Contest." (Case WEST 80-386-R). 

Subsequently, the Secretary filed a "Proposal for Penalty" for the alleged 

violation '(Case No. WEST 81-58-M). 

On both Citations "Order of Withdrawal" was designated pursuant to 

section 107(a) J:../ of the Act, and the violations were designated as 

"significant and substantial." By Order dated October 7, 1981, the above 

three cases were consolidated for hearing. 

At the conunencement of the hearing counsel for the Secretary withdrew 

the section 107(a) Withdrawal Order allegation in connection with Citation 

No.339479. USS had no objection, but argued that the section 107(a) 

withdrawal order designation in Citation 338867 was still a valid issue. 

However, USS had not filed an application for review of the withdrawal 

order designated in that Citation. Conunission Procedural Rule 21 requires 

that the application for review be filed within 30 days of receipt of the 

order by the applicant. 

1/ 30 CFR 55.12-14 states in pertinent part as follows: 

••• When such energized cables are moved manually, insulated hooks, 

tongs, ropes, or slings shall be used unless suitable· protection for 

persons is provided by other means •••• 

2/ Section 107(a) reads in pertinent part: 

If, upon any inspection ••• of a ••• mine which is subject to this 

Act, an authorized representative of the Secretary finds that an inuninent 

danger exists, such representative shall ••• issue an order requiring the 

operator of such mine to cause all persons ••• to be withdrawn from ••• 

such area until an authorized representative of the Secretary determines 

that such inuninent danger and the conditions or practices which cause such 

imminent danger no longer exists ••• 

815 
I find that there was no prejudice to USS in that the Secretary 

elected not to proceed on the withdrawal order designation on either 

citation. In Citation No. 338867, Case No. WEST 80-160-M, an application 

for review of the order was not timely filed by USS pursuant to Procedural 

Rule 21. In Citation No. 339479, the subject of the "Notice of Contest", 

Case No. WEST 80-386-R, and also the proposal for penalty, WEST 81-58-M, 

the withdrawal order was not an issue because USS had no objection to the 

Secretary withdrawing that designation prior to the hearing. 

Counsel for the Secretary elected to present evidence only on the 

alleged violations of the cited regulation and proposed penalties in cases 

No. WEST 80-160-M and WEST 81-58-M. 

FINDINGS OF FACT 

1. Atlantic City Ore Operations is large. It employs 530 employees 

and there are three working shifts daily. The imposition of proposed 

penalties will not affect Respondents ability to continue in business. 

2. USS had 112 assessed violations in the preceding two year period 

at its Atlantic City Ore Operations, and this is average for an operation 

of that size. 

3. Approximately four drills and eight shovels which are electrically 

powered through trailing cables are used in daily operation~ at the 

Atlantic City Ore Operation. 

4. As the equipment is in operation, the trailing cables which weigh 

approximately 2.2 pounds per foot are moved manually by crews of laborers 

and Pit utility men on a regular basis. 

5. The trailing cables which are approximately two and a half inches 

in diameter are rated at 5,000 volts although they ordinarily carry 4,160 

volts of electricity. The cables consist of three copper phase wires 

encased by a braided wire mesh which in turn is in physical contact with 

the two ground wires. There is also a separate insulated ground wire in 

the system that can be used as a continuous ground monitor, although the 

Atlantic Ore Operation does not have a continuous ground monitor system in 

use. 

6. The trailing cables attached to the equipment run to a switch 

house, one for each unit. If there is a disruption or break in the 

electrical system and current is carried on the ground wire, the current 

will follow the ground wire back to the switch house and substation and 

trip a circuit breaker. The resistor limits the ground fault to a maximum 

of approximately 25 amps, however, 4 amps of current is sufficient to open 

the circuit and stop the flow of electricity to the machinery. 

816 
7. The current must run through the ground fault system to the 

breaker for approximately one second in order for the breaker to trip and 

shut off the electrical power running to the equipment. 

8. Current of less than one amp can seriously injure or electrocute a 

person. 

DISCUSSION 

Before each citation was issued an MSHA inspector had observed a miner 

manually moving trailing cable without the use of insulated hooks, tongs, 

ropes, or slings. Thus, there was a violation of the cited regulation 

"unless suitable protection for persons is provided by other means." USS 

utilized a ground fault tripping system built into the trailing cable, and 

the Secretary contends that this system is not "suitable protection" within 

the requirements of the cited regulation. The Secretary also contends that 

the ground fault tripping system does not protect miners but was designed 

to protect equipment. 

It was undisputed that the current needed to trip the breaker switch 

is more than is necessary to seriously injure or kill a person. A phase to 

phase fault was described as an occurrence when the current flows from one 

conductor wire to another in the trailing cable. A phase to ground fault 

is the passage of electricity from the conductor wire to the ground·wire. 

If the ground wire is interrupted, broken, cut or severed for some reason, 

there is no effect on the breaker at the switch house. Thus, even though 

the ground fault system depends on the ground being connected at all times 

in order to trip the breaker, under some circumstances the system would not 

offer that protection. Once the stray current has reached the metal 

shielding outside of the cable and inside the jacket of the trailing cable, 

the current can be conducted down the entire length of the cable endangering anyone who might touch it without protective equipment required 

by the regulation. Damage to the cable can exist in the form of pin hole 

leaks which cannot be detected by eye. 

The trailing cable can accidentally be damaged. They are subject to 

adverse weather and operating conditions. The evidence showed that the 

cables sometimes get frozen into snow banks and are chipped loose with 

picks or shovels. They are sometimes run over by heavy equipment, and they 

are subject to tension by the machinery dragging them over rocks and 

ridges. Heavy rocks may fall on them from higher in the open pit. 

An electrician for USS testified that the ground faults system is 

designed to protect the equipment powered by the trailing cable and is not 

designed to protect persons who handle the cables. I find this evidence, 

along with the statements of other witnesses, convincing on that point, 

81'7 
even though the assistant superintendent of maintenance testified that this 

was not the case. The electrician also testified "I have seen cables that 

had a fault and blown a hole in the jacket. The switch house has failed to 

trip and you can see current carrying conductors [wires] visible." 

There are five to six miles of trailing cable in the open pit mine 

which must be energized when the drills and shovels are operating. A cable 

can be up to three quarters of a mile in length and have as many as 15 

splices every 500 to 700 feet. At one time there were over 500 splices in 

the entire length· of cable. Generally, a splice is applied where leakage 

of current has occurred due to damage. An MSHA inspector discovered five 

defective splices in one day's inspection at the mine. This condition 

presented a hazard to miners who manually moved the cable. 

The assistant superintendent of maintenance for USS tesified that 

the ground fault ·system depended on the ground being connected for the 

system to perform properly. However, loss of ground continuity can occur in 

the system and 'the breaker at the switch house would not "trip". The 

current needed to trip the switch house or to interrupt the current can be 

more than the amount required to injure or kill a person. The evidence 

shows that a miner may be exposed to more than one amp of current for a 

period of approximately one second, which is sufficient to seriously injure 

or kill him if he comes into contact with the cable with his bare hands. 

Although one miner was observed wearing leather gloves while handling the 

cable, there was no evidence produced to show that these gloves provided 

"suitable protection." The Citation No. 338867 was terminated by the 

inspector after USS obtained electrical hazard gloves for use by the cable 

handlers. 

I also find the testimony of th.e electrical engineer called to testify 

for the Secretary to be credible. He testified that possihle injuries 

which could result from bare hand touching of a trailing cable which is 

leaking current of less than one amp could result in severe physical harm 

or death. Although a miner cannot be expected to be provided work in a 

completely risk free environment, the evidence is convincing that when the 

energized .power cables are moved manually the ground fault system is not 

suitable protection from the electrical hazards provided by means other 

than insulated hooks, tongs, ropes, or slings as called for in the cited 

regulation. 

I find that the designation of "significant and substantial" in 

connection with the gravity of the violations was proper. This conclusion 

is based on the principles set forth in Secretart of Labor v. Cement 

Division, National Gypsum Company, 3 FMSHRC 8221981), as follows: 

" ••• A violation is of such a nature as could 

significantly and substantially contribute to the 

cause and effect of a mine safety or health hazard 

if, based upon the particular facts surrounding 

that violation, there exists a reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious 

nature." 

818 
The violations could significantly and substantially contribute to the 

cause and effect·of a mi~e safety hazard, namely, that of electrical shock. 

There exists a reasonable likelihood that electrical shock will result in 

an injury of a reasonably serious nature. 

CONCLUSIONS OF LAW 

1. The undersigned has jurisdiction over the parties and subject 

matter of these proceedings. 

2. The Secretary has proven by a preponderance of the evidence that 

USS violated 30 CFR 55.12-14, as alleged in Citations No. 339479 and 

338867. 

ORDER 

Citations No. 339479 and 338867 are affirmed, the notice of contest 

in WEST 80-386-R is dismissed, and USS is ordered to pay a civil penalty in 

the sum of $250 for each violation for a total of $500 within 30 days of 

the date of this Decision. 

Distribution: 

Phyllis K. Caldwell, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Louise Q. Symons, Esq. 

United States Steel Corporation 

600 Grant Street, Room 6044 

Pittsburgh, Pennsylvania 15230 

Safety Solicitor 

Office of the General Counsel 

United Mine Workers of America 

900 Fifteenth Street, N.W. 

Washington, D.C. 20005 

Mr. Kenneth Sanders, President 

United Steelworkers of America, Local 6295 

P.O. Box 192 

Lander, Wyoming 82520 

819 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE APR 29 \982 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KENNECOTT MINERALS CO., 

UTAH COPPER DIVISION, 

Respondent 

: 

Civil Penalty Proceedings 

Docket No. WEST 81-238-M 

A.O. No. 42-00716-05012 

Magna Concentrator 

Docket No. WEST 81-239-M 

A.O. No. 42-00712-05017 

Arthur Concentrator 

DECISIONS 

Appearances: James Barkley, Attorney, U.S. Department of Labor, Denver, 

Colorado, for the petitioner; John B. Wilson, Esquire, 

Salt Lake City, Utah, for the respondent • .. Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concem proposals for assessme·nt 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), 

proposing civil penalties for three.alleged violations of certain mandatory 

safety standards found in Part 55, Title 30, Code of Federal Regulations. 

The citations and proposed penalty assessments are as follows: 

Docket No. WEST 81~238-M 

Citation No. 

0584162 

0584163 

11/13/80 

11/14/80 

Docket No. WEST 81-239-M 

Citation No. Date 

0583701 11/28/80 

30 CFR Section 

55.9-2 

55.18-25 

30.CFR Section 

55.14-1 

820 

Assessment 

$114 

$140 

Assessment 

$240 
: ~· 

Respondent filed timely answers in these proceedings denying that it 

had violated any of the safety standards detailed in the petitioner's 

proposals for assessment of civil penalties. In addition, in Docket 

WEST 81-238-M, respondent filed a motion to dismiss on the ground that 

MSHA lacks jurisdiction to enforce any mandatory safety and health 

standards governing working conditions of employees working at respondent's 

power plant. The citations in question were issued at the power plant, 

and while conceding that respondent's Magna Concentrator is a "mine" 

subject to the provisions of the Act, respondent asserted· that the Act 

does not apply to the power plant. Respondent argued that pursuant 

to the provisions and terliis of an MSHA-OSHA Interagency agreement, 

44 Fed. Reg. 22827, April 17, 1979, effective March 29, 1979, MSHA does 

not, should not, and.cannot exercise enforcement jurisdiction over a 

power plant facility. 

Petitioner filed a response and opposition to the motion to dismiss 

and by Order issued October 7, 1981, I denied the respondent's motion 

to dismiss without prejudice to its reassertion at a scheduled hearing 

where the parties would have a full opportunity to present additional 

facts and evidence in support of their respective jurisdictional arguments. 

These proceedings were initially docketed for hearing in Salt Lake 

City, Utah, October 22-23, 1981, but the hearings were cancelled and 

continued because of certain budgetary travel restrictions placed on the 

Commission. The hearings were subsequently rescheduled for hearings in 

Salt Lake City, March 30, 1982, and the parties were so advised by notice 

of hearing issued on January 4, 1982. The hearings were convened and the 

parties appeared and participated therein. 

Discussion 

Docket WEST 81-238-M 

The 104(a) Citation No. 058162, November 13, 1980, cites a violation 

of 30 CFR 55.19-123, states that the violation is snginficant and substantial, 

and describes the following condition or practice: · 

The wire hoist rope on the north crane, west hoist, was 

dry and not lubricated according to manurfacuter's 

specifications. This could cause excessive wear on the 

hoist rope, creating a hazard to persons working around it. 

The 104(a) Citation No. 0584163, November 14, 1980, cites a violation of 

30 CFR 55.18-20, '!:.._/ states that the violation is significant and substantial, 

and describes the following condition or practice: 

'!:._/ The citation as issued ~ites section 55.18-25. However, the proposal 

for assessment of civil penalty cites the correct section 55.18-20, and 

the parties agreed that this was an apparent typographical error since 

there is no section 55.18-25. 

821 
A person assigned as coal conveyor operator was working 

alone without adequate communications being available. 

Part of the conveyor ran through a long inclined tunnel. 

In the event that he was caught in a section of machinery, 

or otherwise injured or trapped, his cries for help could 

not be heard. A periodic check by another person was not 

made. 

Petitioner's counsel advised that upon further investigation of this 

case in preparation for trial, he has concluded that MSHA cannot now 

establish the fact of violations with regard to the citations in issue. 

Under the circumstances, counsel moved for leave to withdraw the proposed 

civil penalty assessments, to vacate the citations, and to dismiss 

Docket No. WEST 81-238-M. 

With regard to citation no. 0584162, petitioner's counsel stated that 

upon further consideration of the facts presented, MSHA cannot prove 

that a violation existed. 

With regard to citation no. 0584163, counsel stated that further 

investigation of the facts connected with the issuance of the citation 

revealed that there were no dangerous conditions present at the time the 

citation issued, that the walkways adjacent to the conveyor in question 

were clear, that the lighting was adequate, and that the inspector overlooked 

the fact that an emergency stop-cord was installed along the conveyor 

and that it could have been used to stop the belt in the event of an 

emergency. Given these circumstances, counsel asserted that MSHA could 

not establish that a violation existed. 

Petitioner's counsel asserted that he consulted with the inspector 

who issued the citations and that he was in agreement with the proposed 

disposition of the citations in question. Respondent's counsel stated 

that did not oppose the dismissal of the citations and the withdrawal of 

the proposed civil penalty assessments. However, counsel does not waive 

the jurisdictional arguments advanced in his answer, but agreed that the 

·issue is moot in light of MSHA's withdrawal of the proposed civil penalties 

and vacation of the citations. 

Findings and Conclusions 

Docket No. WEST 81-239-M 

In this case the parties advised me that they had reached an agreement 

for disposition of the case without a trial on the merits. Respondent 

does not now dispute the fact of violation and indicated a desire to 

pay the full amount of the proposed civil penalty assessment and to withdraw 

its "notice of contest." The parties were advised that I would consider 

the case as a proposed settlement disposition, and pursuant to Commission 

Rule 30, 30 CFR 2700.30, the parties were afforded an opportunity to present 

oral arguments in support of their proposed settlement disposition of 

the case. 

822 
Fact of violation 

Respondent conceded that citation no. 0584701, issued on November 28, 

1980, citing a violation of mandatory safety standard 30 CFR 55.14-1, 

was properly issued and that the conditions or practices cited therein 

by the inspector consituted a violation of the cited standard. Under the 

circumstances, respondent opted to waive its right to assert any affirmative 

defense in this matter. 

History of prior violations 

Petitioner presented a computer print-out reflecting 57 prior 

violations for which respondent paid civil penalties totalling $7,051 

for the period December 8, 1978 through December 7, 1980, for·citations 

issued at its Arthur Concentrator. Three of these are for prior violations 

of mandatory standard section 55.14-1. 

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

Remain in Business. 

The parties agreed that respondent is a large mine operator and that 

the Arthur Concentrator facility employs 853 miners working three shifts 

seven days a week. Respondent does not assert that the civil penalty 

assessment made in this case will adversely affect its ability to remain 

in business. 

Gravity 

The parties agreed that the violation was serious and I adopt this 

as my finding in this case. 

Negligence 

The parties agreed that the violation resulted from the failure by 

the respondent to exercise reasonable care and that this amounts to 

ordinary negligence. I adopt this as my finding in this case. 

Good Faith Compliance 

Petitioner asserted that the respondent exercised normal good faith 

complinace in abating the violation and I accept this conclusion as my 

finding in this case. 

ORDER 

Petitioner's motion to withdraw its proposals for assessment of 

civil penalties in Docket No. WEST 81-238-M, is GRANTED, and the citations 

are VACATED. 

823 
With regard to Docket No. WEST 81-239-M, in view of the fact that 

the respondent does not now contest the citation, it is AFFIRMED. Further, 

taking into account the six statutory factors found in section llO(i) 

of the Act, and the arguments presented by counsel during the hearing, I 

conclude and find that the proposed civil penalty of $140 is appropriate 

for citation no. 0583701, and respondent IS ORDERED to pay the penalty 

within thirty (30) days of the date of this decision and order. 

h!~& Administrative Law Judge 

Distribution: 

John B. Wilson, Esq., Parsons, Behle & Latimer, 79 South State St., Box 11898, 

Salt Lake City, UT 84147 (Certified Mail) 

James Barkley, Esq., U.S. Department of Labor, Office of the Solicitor, 

1585 Federal Office Bldg., 1961 Stout St., Denver, CO 80294 (Certified 

Mail) 

824 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATIQN (MSHA), 

v. 

GAMBLE COALS, INC., 

and 

GAMBLE COALS, INC., 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATI9N (MSHA), 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Petitioner 

Respondent 

Applicant 

Respondent 

Civil Penalty Proceeding 

Docket No. WEVA 81-234-P 

A.C. No. 46-04949-03012F 

No. 2 Mine 

Contest of Citations 

Docket No. WEVA 81-68-R 

No. 2 Mine 

DECISION 

Appearances: Stephen P. Kramer, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

John E. Busch, Esq., for Respondent. 

Before: William Fauver, Administrative Law Judge 

These proceedings involve the same two citations. In WEVA 81-234-P, the 

Secretary seeks a civil penalty under section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 ~seq. In WEVA 81-68-R, the 

company seeks review and vacation of the citations under section 105(d) of 

the Act. The cases were consolidated and heard at Charleston, West Virginia. 

Both parties were represented by counsel, who have submitted proposed 

findings, conclusions, and briefs following receipt of the transcript. 

Having considered the contentions of the parties and the record as a 

whole, I find that the preponderance of the reliable, probative, and substantial evidence establishes the following: 

825 
1. 

known as 

coal for 

produced 

FINDINGS OF FACT 

At all pertinent times, Gamble Coals, Inc., operated a coal mine 

the No. 2 Mine in Randolph County, West Virginia, which produced 

sales in or substantially affecting interstate commerce. The mine 

about 83,000 tons of coal per year and employed about 65 miners. 

2. The No. 2 Mine was developed in a block system. Entries were 

developed on 87-1/2 foot centers and crosscuts were mined on 90 degree angles 

and developed on 55 foot centers. Entries were designed to be 26 feet wide. 

Coal was mined at the No. 2 Mine with a Wilcox Mark 20 PJ continuous miner 

with a bridge conveyor and a universal advance conveyor was attached to a 

belt conveyor. Mining involved developing a cent'er entry, breaking crosscuts 

to the right and left of a site line in the center entry, and then advancing 

outside entries. The miner, universal advance conveyor, and bridge conveyor 

moved from side to side during the process and an 8-foot free travel area 

at the end of the bridge conveyor allowed the conveyor belts to slide back 

and forth. 

3. Supports, usually posts and 8 x 12-inch wooden headers, were placed 

in two rows along the sides of the conveyor. Normally, as the machine moved 

toward or away from the face, the bridge conveyor would also shift positions, 

requiring posts to be removed from its path and immediately replaced on the 

other side of the bridge. 

Respondent's roof-control plan required the follpwing inter alia 

Temporary support • • • shall be installed from tail of 

miner to within 4 feet of the face as coal is removed. Due 

to construction and operation of machine, the temporary posts 

must be repositioned several times. Before a support is 

repositioned, equivalent support shall be set. 

4. On August 13, 1980, the site line in the No. 5 entry was accidentally 

moved off center. As a result, the entry was driven off center to the left. 

When the problem was discovered, it was remedied, but the width of the entry 

exceeded the approved 26-foot width in the roof-control plan for about 

40 feet. The excessive width ranged from 32 to 39 feet, and in the break 

was 38 to 39 feet. 

5. The coal seam in the No. 5 Entry was 38 to 40 inches. Bad roof 

conditions were observed in the No. 5 entry in the early part of August, 

requiring extensive roof-bolting and timber support. 

6. On August 14, 1980, Respondent's day shift was mining in a crosscut 

between the No. 5 Entry and the No. 6 Entry. Before the start of the shift, 

there was a visible crack in the roof in the No. 5 Entry, running from right 

to left just outby 5 Cross Right and extending to the rib on the left side 

of the entry. The crew installed some additional timbers in this area, but 

additional roof bolts were not installed around the crack. The shift foreman, 

826 
Percy Lanham, directed the crew to mine just outby the corner of the 5 Cross 

Right and to continue to the face of 5 Headway. The crew backed the miner 

out and turned 5 Left at Cross Right. During this move, timbers were moved 

and replaced to permit travel of the conveyor. 

7. The crew moved the bridge conveyor four to five times and each time 

removed and replaced posts as the conveyor was moved. The section foreman 

observed roof cracks outby the crosscut. When he left the area, at about 

2:55 p.m., the area was well-timbered and he observed timbers within 2 feet 

of and inby the crack mentioned in Finding 6, above. 

8. The day shift foreman left the crew about 1:30 p.m., 1 hour before 

the end of the shift, to begin his preshift examination before the next shift 

arrived. His crew had mined four to five cuts of coal (16 to 18 feet) inby 

the crack before he left. There were four to five timbers around the crack 

when he left. During his examination, he observed bad top in the No. 5 Entry 

from right to left just outby 5 Cross Right and extending to the rib on the 

left side, and a slip on the outby edge. The rock was loose with water 

around its edges. He tested the roof by the sound and vibration method. 

9. When the day shift ended, he told the section foreman to prepare a 

preshift report to include a warning of bad top in the No. 5 heading. The 

day-shift section foreman told the section foreman for the next shift that 

there was good top in 5 Crosscut Right, but that, on the left si<le of the 

No. 5 Entry, there were two visible cracks that he considered dangerous. 

This section foreman discussed these conditions with his crew before they 

started working, and told them how and where timbers were to be set. 

10. As of the start of the second shift (about 5 p.m.), the area was 

well-timbered. There were additional supports to compensate for the 

excessive width in the entry and to support the two cracks on the left side. 

Ed Ware and Don Taylor tested the roof inby the cracks by the sound and 

vibration method and it sounded good. The mining machine was about 40 feet 

in the crosscut on the right side toward the No. 6 entry. The bridge conveyor unit was about 35 feet from the universal advance conveyor and the two 

units joined at an angle less than 90 degrees. The bridge conveyor extended 

from the universal advance conveyor and passed by the right rib to the mining 

machine. 

11. The second shift crew normally consisted of seven miners: two 

facernen, two bridgemen, two timberman, and a miner operator. On August 14, 

the two front timbermen were Richard Daniels and Tom Barrackrnan. Walter 

Eckard was one of the bridgemen. 

12. The crew had a dinner break about 7 p.m. Before they resumed work, 

extra supports were brought to the section. At about 8 p.m., Ed Ware walked 

up the left side of the bridge and told the operator, Danny Ware, that one 

cut remained to be mined in this area. Upon returning toward the No. 5 Entry, 

he removed one row of posts along the conveyor, using an ax. Originally 

there were two rows of posts in this area--one row along the bridge conveyor, 

827 
which Ed Ware removed, and one row along the rib. As he removed the timbers, 

he threw them across the bridge to Walter Eckard so that they could be 

replaced. Ed Ware then signaled the operator to start moving back. As the 

miner started back toward the No. 5 Entry, the conveyor knocked out the other 

row of posts. At that moment, while Mr. Eckard was installing posts on the 

right side, one or two of the 8 x 12 wooden headers fell on the bridge. 

Ed Ware went to remove them but, before doing so, he noticed the top begin to 

dribble and flakes of rock begin to fall. He shouted a warning to Mr. Eckard, 

turned, and ran. Mr. Eckard was setting posts on the right side of the 

bridge. Don Taylor had just come around the corner.of the crosscut and gone 

behind the brattice when he heard Ed Ware shout the warning. Mr. Taylor 

immediately threw himself against the rib and the roof fell, killing 

Mr. Eckard. 

13. Just before the fall~ the miner operator, Danny Ware, had backed the 

miner away from the face and saw Ed Ware remove a row of posts. The machine 

continued back 3 to 4 feet and Danny Ware looked back and saw Walter Eckard 

setting timbers on the right side. Mr. Ware continued back a few more feet 

and, before he tightened the wire rope, the machine knocked out the second row 

of posts on the left side. At that instant, Danny Ware turned around and 

pulled the righthand jack setter to pull the miner closer to the rib and, 

within about 20 seconds, the roof fell in. 

14. Two roof cracks were visible before the fall. The roof section 

that fell extended from the roof crack closer to the face to the right rib; 

the rock that crushed Mr. Eckard was 32 feet wide, 14 feet long, and tapered 

from 1 to 30 inches. 

15. Federal Inspector Robert L. Wilmoth received a telephone call from 

Merle McManus, the Assistant District Manager, notifying him of the fatalilty. 

and arrived at the mine at about midnight, when he issued a section 103(k) 

investigative order of withdrawal. 

16. At about 9:30 p.m., on August 14, Federal Inspector Paul H. Moore 

also was notified by phone of the accident at the No. 2 Mine. On August 15, 

at about 9 a.m., he arrived at the mine with Richard Vasicek, the chief of 

the special investigation group, District 3, and met three other MSHA 

inspectors and a state inspector. Inspector Wilmoth interviewed Ed Ware, the 

bridgeman, Don Taylor, the section foreman, and Danny Ware, the miner operator. Also present were Grant King from the State Department of Mines, the 

Inspector-at-Large, the Assistant Inspector-at-Large, and Mr. Gamble. 

Inspector Moore sat in during these interviews for about 20 minutes. 

17. Inspector Moore left the interviews after about 20 minutes and went 

underground with Mr. Vasicek. They arrived at the section at about noon. 

The Respondent's engineers were already taking measurements and, when they 

finished, the inspector took his own measurements with the help of 

Mr. Vasicek and two state inspectors. They took the measurements by stretching a steel tape along the universal advance conveyor to serve as a center 

line and, at various points along the center line, they measured right and 

left with another tape to the roof supports and ribs. 

828 
18. On August 20, 1980, Inspector Moore charged Respondent with a violation of 30 C.F.R. § 75.200 (violation of approved roof-control plan). The 

citation (No. 805484) reads in part: 

On the 001 section, widths in excess of 30 feet were 

mined in the No. 5 entry for a distance of approximately 

40 feet. The width ranged from 32 to 39 feet. The maximum 

width allowed by the roof-control plan approved on 12/16/79 

is' 26 feet. 

The cited condition was proved by a preponderance of the evidence. This 

condition was abated by training all underground personnel at the No. 2 Mine. 

19. Also on August 20, 1980, Inspector Moore charged Respondent with 

another violation of 30 C.F.R. § 75.200 (violation of approved roof-control 

plan). This citation (No. 805485) reads in part: 

During the investigation it was revealed that supports 

(temporary supports) were not set to provide .equivalent support before removing installed posts during operation of the 

mining machine. The approved roof-control plan specifies 

that equivalent support be set before supports (posts) are 

repositioned. 

The cited condition was proved by a preponderance of the evidence. This condition was found to be abated by training all underground personnel at the 

No. 2 Mine. 

On August 28, 1980, Citation No. 805485 was modified as follows: 

Citation No. 805485 dated 8/20/80 is modified to read 

and include the following: The accident investigation 

further revealed that a slicken slided formation approximately 32 feet long and 14 feet wide was present in the 

intersection of No. 5 entry with the cross cut 5 to 6 on 

the 001 section where a fatal roof fall occurred. Additional supports had not been installed. An adverse roof 

condition was known to exist. The section was under the 

supervision of Don Lee Taylor, section foreman. Type of 

action of citation No. 805485 dated 8/20/80 shows 104(a), 

should show 104(d)(2). 

The above factual allegations were proved by a preponderance of the evidence. The citation was changed to include "unwarrantable failure" and 

"significant and substantial" findings. The inspector modified the citation 

because he believed through subsequent investigation that not only had timbers 

been removed without being replaced, but additional supports, including roof 

bolts, were not provided in an area that had bad roof conditions. 

829 
DISCUSSION WITH FURTHER FINDINGS 

Respondent is charged with two violations of 30 C.F.R. §75.200, which 

provides: 

Each operator shall undertake to carry out on a continuing basis a·program to improve the roof control system of 

each coal mine and the means and measures to accomplish such 

system. The roof and ribs of all active underground roadways, 

travelways, and working places shall be supported or otherwise controlled adequately to protect persons from falls of 

the roof or.ribs. A roof control plan and revisions thereof 

suitable to the roof conditions and mining system of each 

coal mine and approved by the Secretary shall be adopted and 

set out in printed form on or before May 29, 1970. The plan 

shall show the type of support and spacing approved by the 

Secretary. Such plan shall be reviewed periodically, at 

least every 6 months by the Secretary, taking into consideration any falls of roof or ribs or inadequacy of support 

of roof or ribs. No person shall proceed beyond the last 

permanent support unless adequate temporary support is provided or unless such temporary support is not required 

under the approved roof control plan and the absence of such 

support will not pose a hazard to the miners. A copy of the 

plan shall be furnished to the Secretary or his author.ized 

representative and shall be available to the miners and their. 

representatives. 

With reference to Citation No. 805484, the Secretary contends that 

Respondent violated its approved roof-control plan by allowing the No. 5 

Entry width to exceed 26 feet. The Secretary contends that, for a distance 

of about 40 feet in the entry, the width ranged between 32 and 39 feet and 

the excessive width created overburden pressures on the roof, contributing 

to the roof fall and fatality on August 14, 1980. The Secretary proposes a 

penalty of $2,500 for this alleged violation. 

With reference to Citation No. 805485, the Secretary contends that 

Respondent violated its approved roof-control plan by failing to set 

equivalent support before removing posts during mining activities in the 

No. 5 Entry on August 14, and by failing to provide additional supports on 

the right side of the crack in the entry. The Secretary contends that 

Respondent had too few timbermen and failed to supervise adequately the 

movement of the conveyors to prevent an accidental bumping of a row of posts 

supporting the crack in the entry. The Secretary also contends that Respondent was aware of bad roof in the No. 5 Entry, but failed to install roof 

bolts along the right edge of the crack. The Secretary argues that the sound 

and vibration method of testing the roof is not foolproof and greater precautions should have been taken. The Secretary argues that it was customary 

to bolt both sides of a crack or slip, especially with this type of conveyor 

830 
system, because the posts installed near the crack would have to be removed 

to move the conveyor. The Secretary proposes a penalty of $10,000 for this 

alleged violation. 

Respondent admits that the No. 5 Entry was driven off-center with 

excessive widths for about 40 feet, but argues that the excessive widths in 

the entry did not contribute to the roof fall on August 14. Respondent also 

admits that it failed to install equivalent supports as the conveyor was 

moved, and that this probably contributed to the roof fall; however, 

Respondent argues that it tested the roof in the No~ 5 Entry by an approved 

method (sound and vibration) and placed supports around a visible crack in 

accordance with standard procedure. Respondent contends that, although the 

area to the left of the crack was dangerous, there was no proof that the 

area to the right of the crack was also dangerous. Respondent contends that 

its approved roof control plan required additional timbering and spot bolting 

where required in the discretion of the supervisor and that, in his discretion, 

the roof to the right of the crack appeared visually sound and sounded good. 

Although conceding certain violations of the roof-conrol plan, Respondent 

contends that forseeability of the violations was not proven and, therefore, 

the allegation of "unwarrantable failure" to comply should not be sustained 

and penalties should not be premised on a finding of an unwarrantable failure. 

I conclude that the government proved the excessive-width violation as 

alleged in Citation 805484, and that such violation was serious in that it 

created a substantial risk of roof fall and could significantly contribute 

to a mine hazard. I also conclude that this violation could have been prevented by the excercise of reasonable care, including better mine supervision 

and training. It was due, therefore, to an unwarranted failure to comply with 

the standard. 

I also conclude that the government proved the violations alleged in 

Citation 805485 and its modification, # 805485-2. The evidence showed that 

supports were not set to provide equivalent support before moving installed 

posts during operation of the mining machine, and that, additional supports 

were needed but not installed to the right of the roof crack in the No. 5 

entry intersection with 5 cross right. These violations constituted a 

serious hazard of roof fall and could have been prevented by the exercise 

of reasonable care, including better mine supervision and training. They 

were due, therefore, to an unwarranted failure to comply with the standard. 

CONCLUSIONS OF LAW 

1. The undersigned Judge has jurisdiction over the parties and subject 

matter of the above proceedings. 

2. In Docket No. WEVA 81-234-P, Respondent violated its roof control 

plan and 30 C.F.R. § 75.200 by exceeding the width requirements of the roof 

control plan as alleged in Citation 805485 and by failing to provide and 

maintain necessary roof support as alleged in Citation 805484 and its 

modification, # 805484-2. 

831 
3. Based upon the statutory criteria for assessing a civil penalty for 

a violation of a mandatory safety standard, Respondent is assessed a penalty 

of $2,500 for the violation found as to Citation 805485 and $5,000 for the 

violations found as to Citation 805484 and its modification, # 805484-2. 

ORDER 

WHEREFORE IT IS ORDERED that in Docket No. WEVA 81-234-P, Gamble Coals, 

Inc., shall pay the Secretary of Labor the above-assessed civil penalties, 

in the amount of $7,500, within 30 days from the date of this decision. 

IT IS FURTHER ORDERED that, in Docket No. 81-68-R, the citations and 

modification involved are AFFIRMED and the contest proceeding is DISMISSED. 

WILLIAM FAUVER, JUDGE 

Distribution: 

John E. Busch, Counsel for Gamble Coals, Inc., Brown, Harner, & Busch, 

P.O. Box 1333, Elkins, WVA 26241 

Stephen P. Kramer, Esq., US Department of Labor, Office of the Solicitor, 

4015 Wilson Boulevard, Arlington, VA 22203 

*U.S. GOVERNMENT PRINTING OFFICE l 1982 0-361-638/4'.}70 

832