JUNE 1987 

COMMISSION DECISIONS 

06-30-87 

06-30-87 

Con-Ag, Inc. 

Dillard Smith v. Reco, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

06-01-87 

06-02-87 

06-02-87 

06-02-87 

06-03-87 

06-03-87 

06-05-87 

06-05-87 

06-08-87 

06-08-87 

06-08-87 

06-08-87 

06-09-87 

06-10-87 

06-11-87 

06-12-87 

06-22-87 

06-22-87 

06-22-87 

06-22-87 

06-23-87 

06-25-87 

06-29-87 

06-29-87 

06-30-87 

M.M. Sundt Construction Co. 

Howard H. Ross v. Richland Coal Co. 

Mid-Continent Resources, Inc. 

High Power Energy 

Joe Arnoldi v. Asarco, Incorporated 

Vinnell Mining & Minerals Corp. 

Peabody Coal Company 

Youghiogheny & Ohio Coal Company 

Mid-Continent Resources., Inc. 

Vinnell Mining & Minerals Corp. 

Bert Bielz, Jr. & Richard McNeely 

Henry C. Stairs v; Coeur d'Alene Mines Corp. 

Alt, Incorporated 

Emko Corporation 

Mettiki Coal Corporation 

The Helen Mining Company 

Sellersburg Stone Company 

Daniel S. Alexander v. Freeport Gold Co. 

Helen Mining Company 

Mohave Concrete & Materials, Inc. 

U.S. Steel Mining Co., Inc. 

Texas Architectural Aggregates, Inc. 

Green River Coal Company, Inc. 

Kaiser Coal Corporation of Sunnyside 

Florence Mining Company 

LAKE 87-15-M 

VA 86-9-D 

CENT 86-6-M 

KENT 87-43-D 

WEST 87-21 

WEVA 87-26 

WEST 85-161-DM 

WEST 86-260-M 

KENT 86-101 

LAKE 86-25-R 

WEST 87-40 

WEST 85-152-M 

WEST 85-154-M 

WEST 86-198-DM 

PENN 85-312 

WEST 87-42-M 

YORK 87-1-R 

PENN 86-94-R 

LAKE 86-127-M 

WEST 85-106-DM 

PENN 87-102 

WEST 86-14-M 

PENN 87-107 

CENT 86-120-M 

KENT 86-8 

WEST 86-225 

PENN 86-297-R 

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989 

992 

999 

1007 

1008 

1010 

1015 

1046 

1048 

1059 

1069 

1071 

1076 

1078 

1079 

1086 

1088 

1095 

1109 

1112 

1124 

1126 

1134 

1136 

1163 

1164 

1180 

JUNE 1987 

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

Wilfred Bryant v. Dingess Mine Service, Winchester Coals, Inc., etc., 

Docket No. WEVA 85-43-D. (Judge Broderick, May 13, 1987) 

Peabody Coal Company v. Secretary of Labor, MSHA, Docket Nos. KENT 86-94-R, 

KENT 86-95-R, 87-154. (Judge Fauver, May 20, 1987) 

Con-Ag, Inc. v. Secretary of Labor, Docket No. LAKE 87-15-M. (Judge Merlin, 

Default Decision of June 1, 1987) 

Review was denied in the following cases during the month of June: 

Ronald Tolbert v. Chaney Creek Coal Co., Docket No. KENT 86--123-D. 

(Judge Melick, May 12, 1987) 

Secretary of Labor, MSHA v. Jim Walter Resources, Inc., Docket Nos. SE 87-38, 

etc. (Judge Merlin, May 22, 1987) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CON-AG, INCORPORATED 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 30, 1987 

Docket No. LAKE 87-15-M 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

In this civil penalty proceeding ar1s1ng under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982), Commission Chief Administrative Law Judge Paul Merlin pursuant to Commission 

Procedural Rule 63, 29 C.F.R. § 2700.63, issued an Order of Default on 

June 1, 1987, finding Con-Ag, Inc. ("Con-Ag") in default and assessing a 

civil penalty of $550. On June 15, 1987, the Commission received from 

Con-Ag a written request for relief from this default. We deem the 

request to constitute a timely petition for discretionary review. For 

the reasons that follow, we vacate the judge's default order and remand 

for further proceedings. 

On May 14, 1986, an inspector of the Department of Labor's Mine 

Safety and Health Administration ("MSHA") issued to Con-Ag a citation in 

connection with an accident at Con-Ag's crushing plant alleging a 

violation of 30 C.F.R. § 56.15005 based on a miner's failure to wear a 

safety belt and line. On November 28, 19g6, Con-Ag filed a "Blue Card" 

request for hearing with respect to the Secretary of Labor's notification of a proposed $550 civil penalty for the alleged violation. On 

January 22, 1987, the Secretary filed a Proposal for Penalty with the 

Commission. Con-Ag did not file an answer to the penalty proposal. 

Consequently, on March 13, 1987, Judge Merlin issued an Order to Show 

Cause directing Con-Ag to file an answer within thirty days. Con-Ag did 

not respond to this order. 

The show cause order was sent by certified mail to the Wapakoneta, 

Ohio address that Con-Ag was using at the time of citation. The order 

was returned undelivered on March 20, 1987, stamped by the United States 

989 
Postal. Service "Attempted-Not Known." On June 1, 1987, Judge Merlin 

issued an Order of Default finding Con-Ag in default and assessing the 

Secretary's proposed $550 penalty. The judge's order states: "On March 

13, 1987, you were ordered to file your Answer to the Proposal .... The 

Order was returned unclaimed. Under the Commission's regulations 

service is complete upon mailing." The default order was.sent by 

certified mail to Con-Ag at the same Wapakoneta, Ohio address. 

On June 15, 1987, Con-Ag filed with the Commission a notarized 

letter signed by Le~ Kuck requesting relief from default. Kuck attached 

to his letter an MSHA change-of~address form providing MSHA with a new 

address for Con-Ag in St. Marys, Ohio. It appears that this fo·rm may 

have been sent to MSHA on May 29, 1986; a few weeks after the citation 

was issued and nearly one year prior to the judge's show cause order. 

Kuck also states that he checked with the Wapakoneta Post Off ice and was 

told that the show cause order was returned to the sender "because bf 

improper address." Kuck requests a hearing."due to the fact the address 

was incorrect, and the fact that MSHA had the correct address. 11 

The Commission has recognized that under appropriate circumstances 

a genuine problem in communication or with the mail may justify relief 

from default. See,~·· Kelley Trucking Co., 8 FMSHRC 1867, 1869 

(December 1986; Fife Rock Prod. Co., Inc., 8 FMSHRC 1503, 1504 (October 

1986). The record does not contain sufficient information to justify 

our ruling summarily.on Con-Ag's claims. In fairness and consistent 

with Commission precedent in default cases the operator should have the 

opportunity to present its position to the judge, who shall determine 

whether relief from default is appropriate. Kelley Trucking, supra. 

For the foregoing reasons, the judge's default order is vacated 

and this matter is remanded for further proceedings consistent with this 

opinion. 

tt, ~ .. Last6wka.~;Comm. issioner 

-- I 1·L " 

/ 1. £~-~~; ( ... L\L..-<.-iv 

L. Clair Nelson, Commissioner 

990 
Distribu,tion 

Lee Kuck 

Con-Ag, Inc. 

Rt. 1, Box 66A 

St. Marys, Ohio 45885 

Patri~k M. Zohn,. Esq. 

Office of the Solicitor 

U.S. Department of Labor 

881 Federal Building 

1240 East Ninth St. 

Cleveland, Ohio 44199 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W. 

Washington, D.C. 20006 

991 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

DILLARD SMITH 

v. 

RECO, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 30, 1987 

Docket No. VA 86-9-D 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

In this discrimination proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982), Commission Administrative Law Judge James A,. Broderick issued a decision 

dismissing discrimination complaints filed by Dillard Smith and Lonnie 

Smith. 8 FMSHRC 1592 (October 1986)(ALJ). The Commission granted 

Dillard Smith's petition for discretionary review. For the reasons that 

follow, we affirm the judge's decision. 

Complainant Dillard Smith ("Dillard") and Lonnie Smith ("Lonnie"), 

his brother, were employed from 1977 until November 26, 1985, by Reco, 

Inc. ( 11Reco11 ), located in Tazewell, Virginia. Reco was in the business 

of selling and servicing mine batteries. The Smiths' duties primarily 

involved the servicing of mine batteries, and at times they were 

required to work in underground coal mines. Each performed somewhat 

more than forty hours of such underground work in the six months prior 

to November 26, 1985. 

In November 1979, Dillard had received undarground miner training 

approved by the Department of Labor's Mine Safety and Health Administration ("MSHA") and had earned the appropriate training certificate. 

See 30 C.F.R. Part 48 (training regulations). Snbsequently, he did not 

receive any annual refresher training or any further underground mining 

training. Lonnie had never received any training for underground mines. 

In June 1985, Dillard had become concerned about working in 

underground mines without adequate training and he contacted MSHA. He 

was informed that his training certificate had expired and that he 

needed forty hours of additional training. That same month he asked his 

foreman, Steve Williams, about annual refresher training for himself and 

992 
underground training for Lonnie. Williams nodded but did not otherwise 

respond. Dillard did not raise the subject again until the day ~tter 

his employment terminated. 

On November 26, 1985, Dillard and Lonnie were servicing batteries 

at Reco's shop. Around 9:00 a.m., Williams told Dillard that he had a 

service call. Dillard asked if the service call was in an underground 

mine. Williams informed him that it was. Dillard told Williams that he 

was not going. Williams responded: "Change your clothes and you know 

where the door's at. 11 Tr. 31. A similar exchange then occurred between 

Williams and Lonnie. Shortly thereafter, the brothers turned in some 

company property and left the premises. 

On November 26 neither Dillard nor Lonnie told Williams or any 

other Reco representative his reasons for refusing underground work. 

When asked on cross-examinat~on at the hearing in this matter why he had 

not told Williams of his reasons for refusing his assignment, Dillard 

replied: "[Williams] did not ask me." Tr. 32. 

The next day, on November 27, 1985, Dillard returned to Reco's 

offices for his paycheck. He was told by Reco's receptionist/secretary 

that it had been mailed to him the previous day. Dillard told the 

secretary to tell Jack Pyatt, Reco's president, that the reason he did 

not go underground was that "[his] training had expired." Tr. 61. 

Meanwhile, also on November 26, Reco had decided to terminate its 

mine battery sales and service business. This decision followed 

discussions with Commonwealth of Virginia officials concerning health 

and safety violations cited during an August 1985 state inspection. The 

Virginia officials agreed not to pursue the violations contingent on 

Reco's terminating its mine battery business. The company ended its 

battery business on December 6, 1985, although certain limited wrap-up 

functions were performed for a few months thereafter. 

Dillard and Lonnie filed discrimination complaints with MSHA 

pursuant to section 105(c) of the Mine Act, 30 U.S.C. § 815(c), but 

following an investigation of their allegations MSHA determined that no 

discrimination had occurred and declined to prosecute complaints on 

their behalf. 30 U.S.C. §§ 815(c)(2) & (3). The complainants then 

filed their own discrimination complaints with this independent 

Commission pursuant to section 105(c)(3) of the Act. 30 U.S.C. 

§ 815(c)(3). Commission Judge Broderick consolidated the cases and held 

a joint hearing. On October 17, 1986, the judge issued his decision 

dismissing both complaints. Only Dillard sought review before the 

Commission. 

In his decision, Judge Broderick initially concluded that the 

complainants had engaged in a protected work refusal on November 26. He 

found that they had a reasonable belief that it was hazardous to work 

underground without the miner's training mandated by section 115 of the 

Mine Act, 30 U.S.C. § 825, and the Secretary's implementing regulations 

at 30 C.F.R. Part 48. 8 FMSHRC at 1596. He also stated that "there is 

no evidence that [their work refusal] was other than in good faith." 

Id. Resolving conflicts in testimony as to whether Foreman Williams had 

993 
fired the br~thers immediately after their November 26 work refusal, he 

found that they were in fact discharged at that time. Id. The judge 

went on to conclude, however, that the complainants "were not discharged 

for activity protected under the Act" (8 FMSHRC at 1597) because they 

had failed to communicate adequately their safety concerns, citing 

Simpson v. Kenta Energy, Inc., & Roy Dan Jackson, 8 FMSHRC 1034, 1038-40 

(July 1986), pet. for review filed, No. 86-1441 (D.C. Cir. August 7, 

1986); and Secretary on behalf of Dunmire & Estle v. Northern Coal Co., 

4 FMSHRC 126, 133-35 (February 1982). 8 FMSHRC at 1596-97. 

Specifically, the judge found that it was "clearly reasonably 

possible" for the complainants to have told Williams on November 26 that 

they were refusing to work underground because of their perceived lack 

of required training. 8 FMSHRC at 1597. The judge found that Dillard's 

single request for training in June 1985 was insufficient to supply the 

necessary communication on November 26, 1985. The judge determined that 

Dillard's statement to Reco's secretary on November 27, the day after 

the refusal, was inadequate communication of a safety concern under 

Simpson and Dunmire & Estle, supra. The judge also noted that by 

November 27, Reco "ha[d] already decided to cease operations, so it 

would not have been possible for it to 'address the perceived danger.'" 

Id., quoting Simpson, supra, 8 FMSHRC at 1039. Accordingly, the judge 

concluded that no violation of section 105(c) had been established and 

dismissed the Smiths' complaints. 

The general principles governing analysis of discrimination cases 

under the Mine Act are settled. In order to establish a prima f acie 

case of discrimination under section 105(c) of the Act, a complaining 

miner bears the burden of production and proof in establishing that 

(1) he engaged in protected activity and (2) the adverse action 

complained of was motivated in any part by that protected activity. 

Secretary on behalf of Fasula v. Consolidation Coal Co., 2 FMSHRC 2786, 

2797-2800 (October 1980), rev'd on other grounds sub nom. Consolidation 

Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf 

of Robinette v. United Castle Coal Co., 3 FMSHRC 817-18 (April 1981). 

The operator may rebut the prima facie case by showing either that no 

protected activity occurred or that the adverse action was in no part 

motivated by protected activity. If an operator cannot rebut the prima 

facie case in this manner, it nevertheless may defend affirmatively by 

proving that it also was motivated by the miner's unprotected activity 

and would have taken the adverse action in any event for the unprotected 

activity alone. Fasula, ~pra; Robinette, supra. See also Eastern 

Assoc. Coal Corp. v. FMSHRL, 813 F.2d 639, 642 (4th.Cir. 1987); Donovan 

v. Stafford Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); 

Baich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically 

approving the Commission's ~asula-Robinette test). Cf. NLRB v. 

Transportation Management Corp., 462 U.S. 393, 397-413 (1983)(approving 

nearly identical test under National Labor Relations Act). 

In this proceeding, the fact that Dillard refused an underground 

work assignment on November 26, 1985, and was fired by his foreman 

because of that refusal is not in dispute. The primary issue presented, 

therefore, is whether Dillard's work refusal was protected under the 

Mine Act. See,~·· Secretary of Labor v. Metric Constructors, Inc., 

994 
6 FMSHRO 226, 229-30 (February 1984), aff'd sub nom. Brock v. Metric 

Constructors, Inc., 766 F.2d 469, 472-73 (11th Cir. 1985); Dunmire & 

Estle, supra, 4 FMSHRC at 132-33. 

A miner has the right under section 105(c) of the Mine Act to 

refuse work if the miner has a good faith, reasonable belief that 

continued work involves a hazardous condition. Pasula, supra, 2 FMSHRC 

at 2789-96; Robinette, supra, 3 FMSHRC at 807-12. See also,~., 

Metrtc Constructors, supra. However, where reasonably possible, a miner 

refusing work ordinarily must communicate or attempt to communicate to 

some representative of the operator his belief that a hazardous 

condition exists. Simpson, supra, 8 FMSHRC at 1038; Dunmire & Estle, 

supra, 4 FMSHRC at 133-35. See also,~., Miller v. Consolidation Coal 

Co., 687 F.2d 194, 195-97 (7th Cir. 1982)(approving Dunmire & Estle 

~mmunication requirement). Among other salutary purposes, the 

communication requirement is intended to avoid situations in which the 

operator at the time of a refusal is forced to divine the miner's 

motivations for refusing work. As we emphasized in Simpson: "[T]he · 

right to make safety complaints and to refuse work under the Mine Act is 

premised on the belief that communication of hazards and response to 

such hazards are the means by which the Act's purposes will be 

attained." 8 FMSHRC at 1039 (citations omitted). As further stated in 

Simpson, a miner's failure to communicate his fear regarding a hazard 

negates the opportunity for the operator to address the perceived danger 

and would have the effect of requiring us to accept the untenable 

presumption that no action would have been taken by the operator 

regarding the miner's concern. 8 FMSHRC at 1039-40. 

Neither of the Smith brothers communicated to Reco on November 26 

any reason for his work refusal on that date. The judge found that 

"[i]t was clearly reasonably possible for Complainants to tell Williams 

that they refused to work underground because they lacked training" (8 

FMSHRC at 1597), and substantial evidence supports this conclusion. 

Dillard was asked several times at the hearing why he had not 

communicated his asserted training concern, but provided no answer other 

than that Williams had failed to ask him his reasons for refusing his 

work assignment. The responsibility for the communication of a belief 

in a hazard that under~ies a work refusal rests with the miner. The 

record also supports the judge's conclusion that Dillard's single 

question concerning training some five months prior to his refusal was 

too far removed in time and too limited in nature to supply continuing 

notice of a complaint or an implied communication of safety or health 

concerns on November 26. Although Dunmire & Estle indicates that under 

appropriate limited circumstances a post-work refusal communication may 

suffice, there must be good reason for any delay. On the facts of this 

case, Dillard has not advanced any acceptable reason for his failure to 

communicate the hazard that he perceived until one day after his 

termination. 

Thus, Dillard failed to make the necessary communication of a 

belief in a hazard and, accordingly, his work refusal was not protected 

under the Mine Act. Because Dillard's work refusal was not protected, 

his termination by Reco because of that refusal did not violate the 

995 
Act. ~/ 

On the foregoing bases, the judge's decision is affirmed. 

/.-~~v{_~ - 'Richard V. Backley, Commissioner ~ 

c1~d- ,[c /} /; ~' 

Joyce A. Doyle, colllilliSS(;ner 

James A. Lastowka, Commissioner 

;;;{;__.__;_.,/IL~._,,_, L. Clair Nelson, Commissioner 

~/ To the extent that the judge held that Dillard had engaged in a 

p~otected work refusal apart from his failure of communication, the 

judge erred. Proper communication of a perceived hazard is an integral 

component of a protected work.refusal in the first instance rather than 

a wholly ~eparate requirement. Further, under the circumstances of this 

case, the fact that Reco had determined to cease its battery business is 

not determinative of the issue whether section 105(c)(l) of the Mine Act 

was violat.1d. Also, given our disposition, we need not pass on the 

judge's findings that Dillard had a reasonable, good faith belief in 

hazards associated with his limited training. We note, however, that it 

is far from clear on the present record precisely what type of training 

Reco, as a contractor, was obligated to provide the Smiths in view of 

their occasional and intermittent servicing work in mines. See 30 

C.F.R. § 48.2 (definitions of "miners" who must be provided with new 

miner training, refresher training, and h~zard training). Under the 

circumstances, that point need not be resolved here. 

996 
Distribution 

Robert B. Altizer, Esq. 

Gillespie, Hart, Altizer & Whitesell, P.C. 

P.O. Box 718 

Tazewell, Virginia 24651 

William B. Taltyt Esq. 

106 E. Main St. 

P.O. Box 599: 

Tazewell, Virginia 24651 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Commission 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

997 
998 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JUN 11987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

M.M. SUNDT CONSTRUCTION 

COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 86-6-M 

A.C. No. 29-01936-05503 

Sundt Crusher 

DECISION AFTER REMAND 

Appearances: Allen Reid Tilson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, 

for Petitioner; 

Brian Murphy, Loss Control Manager, M.M. Sundt 

Construction Company, Tucson, Arizona, pro se. 

Before: Judge Morris 

On September 15, 1986, the Federal Mine Safety and Health 

Review Conunission remanded the captioned case and directed 

that the judge give respondent an opportunity to explain its 

failure to comply with a prehearing order that resulted in a 

default. 

Such an opportunity was afforded and respondent filed 

various documents supporting its request for a hearing. Inasmuch as the Commission has indicated that a default is a harsh 

remedy the judge granted respondent's request and set the case 

for a hearing on the merits • 

. The hearing took place in Albuquerque, New Mexico on 

January 21, 1987. The parties waived their right to file posttrial briefs. 

Issues 

The issues presented are whether the violations occurred; 

if so, what penalties are appropriate. 

999 
Stipulation 

At the commencement of the hearing the parties stipulated 

as follows: 

1. M.M. Sundt is the owner and operator of the mine. 

2. Respondent is subject to the Act. 

3. The Federal Mine Safety and Health Review Commission 

has jurisdiction. 

4. The inspector was a duly authorized representative of 

the Secretary. 

5. A true and correct copy of the citations were served 

on the operator. 

6. The penalties will not affect the operator's ability 

to continue in business. 

7. Respondent abated in good faith. 

8. The operator has a good history with only two prior 

violations. 

9. The operator should be considered a large company 

since it is one of the top 400 contractors. in the country. 

10 •. Respondent's employees were wearing ear plugs and 

respirators on the day of the inspection (Tr. 4). 

Citation 2091027 

This citation alleges respondent violated 30 C.F.R. § 

56.SOSO(b). The regulation provides in part as follows: 

§ 56.5050 Exposure limits for noise 

(a) No employee shall be permitted 

an exposure to noise in excess of that 

specified in the table below. Noise level 

measurements shall be made using a sound 

level meter meeting specifications for type 

2 meters contained in American National 

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

"General Purpose Sound Level Meters" approved 

April 27, 1971, which is hereby incorporated 

by reference and made a part hereof, or by 

1000 
a dosimeter with similar accuracy. This 

publication may be obtained from the 

American National Standards Institute, 

Inc., 1430 Broadway, New York, New York 

10018, or may be examined in any Metal 

and Nonmetal Mine Safety and Health District or Subdistrict Off ice of the Mine 

Safety and Health Administration. 

PERMISSIBLE NOISE EXPOSURES 

Duration per day, 

hours of exposure 

Sound 

level 

dBA 

slow 

response 

8................................ 90 

6................................ 92 

4... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 

3................................ 97 

2 •••••••••• ·• • • • • • • • • •. • • • • • • • • • • • • 10 0 

1-1/2............................ 102 

1. . . . . . . . . . . . . . . . . . . . . . . • . • . . . . . . 10 5 

1/2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 

1/4 or less...................... 115 

No exposure shall exceed 115 dBA. Impact 

or impulsive noises shall not exceed 

140 dB, peak sound pressure level. 

(b) When employees' exposure 

exceeds that listed in the above table, 

feasible administrative or engineering 

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

permissible levels, personal protection 

equipment shall be provided and used to 

reduce sound levels to within the levels 

of the table. 

1001 
Sununary of the Evidence 

Petitioner's Evidence 

MSHA Inspector Archie Fuller testified as to both citations. 

He indicated that a dosimeter records noise levels in excess of 

90 dBA. The level appears in a digital display (Tr. _26, Ex P-9). 

He also discussed a typical dosimeter test to calibration (Tr. 27). 

Employee Steve Morrison, a crusher laborer, was exposed 

to excessive noise caused by the cone crusher, the belt transfer, 

jaw crusher and generator (Tr. 28, 29). Morrison was working in. 

and around this equipment (Tr. 29). Morrison was tested for about 

eight hours (Tr. 30). Two other employees were not overexposed. 

The crusher operator was protected by an insulated booth. The 

oiler was exposed to 97.4 dBA (Tr. 50). 

The inspector also uses an instrument that records an instant 

sound level readout (Tr.' 30). The instant readout of the large 

equipment ranged from 92 to 98 dBA. 

The dosimeter on Morrison indicated a readout of 139 percent 

or approximately 92.5 dBA (Tr. 3i). Anything reading over 90 dBA 

constitutes overexposure. 

Excessive noise can cause loss of hearing. 

The inspector recommended that the employee clean the area 

when the crusher was shut down (Tr. 33). 

Three workers were monitored for noise but only Steve Morrison 

was overexposed (Tr. 41). 

Cleaning around equipment is a continuous activity. A dosimeter does not get in the worker's ear (Tr. 46). 

Respondent's Evidence 

Bryan Hoyt Murphy testified he has been the loss control 

manager for Sundt Corporation for 14 years. The company has a 

number of plants around the United States (Tr. 53, 54). 

Concerning the noise levels, the company had no proof that 

the inspector's equipment was improperly calibrated. Further, the 

company had insufficient manpower to rotate its workers. In 

addition, the employees were protected by personal protective 

equipment; i.e., foam earplugs. If properly put in the ears, a 

10 to 18 dBA attenuation could be expected (Tr. 58). 

Except for mufflers already installed, there are no other 

engineering controls that could reduce the noise level (Tr. 59). 

1002 
Evaluation of the Evidence 

The Secretary's evidence establishes a violation of the 

noise regulation. Employee Morrison was exposed to a noise level 

in excess of the permissible limit. 

Respondent did not rebut the Secretary's evidence but relies 

on the fact that the worker was wearing foam earplugs. It is 

claimed that such earplugs reduce the noise level. 

I reject respondent's argument. Even though the earplugs 

may reduce the noise level, the regulation requires the use of 

feasible administrative or engineering controls. The fact that 

only one of two miners in the area was exposed indicates that 

administrative rotation controls were readily available. Cf. 

Jet Asphalt and Rock Company, Inc., 3 FMSHRC 940 (1981); Callanan 

Industries, Inc., 5 FMSHRC 1900 (1983). 

The citation should be affirmed. 

Civil Penalty 

The statutory criteria to assess civil penalties is contained in 30 u.s.c. § 820(i). Most of the statutory criteria 

has been addressed by the stipulation of the parties. Concerning 

the remaining elements the gravity appears low since only exposure over a long period can effect a worker's hearing. The 

operator's negligence·must also be considered as low because it 

believed its workers were protected by earplugs. 

On balance I believe the $20 civil penalty, as proposed by 

the Secretary, is appropriate. 

Citation 2091028 

This citation alleges respondent violated 30 C.F.R. § 

56.SOOl(a) which provides as.follows: 

§ 56.5001 Exposure limits for Airborne 

Contaminants . 

Except as permitted by § 56.5005 -

(a) Except as provided in paragraph (b) , 

the exposure to airborne contaminants shall 

not exceed, on the basis of a time weighted 

average, the threshold limit values adopted 

by the American Conference of Governmental 

Industrial Hygienists, as set forth and explained in the 1973 edition of the Conference's 

publication, entitled "TLV's Threshold Limit 

Values for Chemical Substances.in Workroom 

Air Adopted by ACGIH for 1973," pages 1 

1003 
through 54, which are hereby incorporated 

by reference and made a part hereof. This 

publication may be obtained from the American 

Conference of Governmental Industrial Hygienists 

by writing to the Secretary-Treasurer, P.O. 

Box 1937, Cincinnati, Ohio 45201, or may be 

examined in any Metal and Nonmetal Mine Safety 

and Health District or Subdistrict Office of 

the Mine Safety and Health Administration. 

Excursions above the listed thresholds shall 

not be of a greater magnitude than is characterized as permissible by the Conference. 

Summary of the Evidence 

Archie Fuller, an MS~ mining inspector for nine years, has 

been trained regarding silica (Tr. 9-14). 

Inspector Fuller calibrated the dust pump the day before his 

inspection (Tr. 15). The witness further explained the methodology 

used in taking a dust sample (Tr. 16-21, Ex P-7). The result in 

an 8-hour sampling indicated an employee was exposed to a .88 

shift weighted average of silica. The threshold limit value {TLV) 

is .34 (Tr. 19, 21). Three samples were taken. One was voided, 

one was not in violation and one analysis caused the issuance of 

Citation 2091028 (Tr. 20, 48). 

MSHA is concerned about silica because of the hazard of 

silicosis, a lung disease. Silica will reduce the elasticity in 

a person's lungs (Tr. 22,23). 

Employee Jim Blackwell, who maintains and greases moving 

parts on the crusher and conveyors, was the employee who was 

exposed (Tr. 23, 25). The employee would not have been exposed 

if he had performed the function when the crusher was shut down. 

In addition, he could have been rotated with another employee 

(Tr. 25). Further, the sprinklers which were frozen could have 

been fixed (Tr. 25, Ex R-11). 

In cross-examination the inspector indicated he calibrated 

the dust sampler at the MSHA field office in Grants, New Mexico. 

The altitude at that location is about 6200 feet as compared 

with 5300 at the work site (Tr. 34). The inspector felt the 

difference in altitude would not affect the result "that much." 

The sampling pump was a Bendix Micronair (Tr. 35, 51). The pump 

is not calibrated at the factory (Tr. 36). 

On the day of the inspection the temperatures in Bloomfield 

were never higher than 37 degrees, with a low of about 30 (Tr. 36, 

37). The inspector considered the water sprays to be engineering 

controls (Tr. 37). 

1004 
Blackwell was sampled outside the respirator and he was 

exposed to silica-bearing dust, especially if his respirator had 

a leak in it, was improperly fit, slipped down, or if he took it 

off (Tr. 39, 40). If the respirator was tight-fitting he wasn't 

exr-osed (Tr. 41). 

Blackwell's respirator was MSHA, OSHA and NIOSH approved 

( Tr • 3 9 , 4 0 ) • 

Concerning the dust citation, Brian Murphy, respondent's 

witness, indicated the engineering controls were shut down the 

day the citation was issued. In addition, the company did not 

have a sufficient number of workers on the site to rotate.them 

(Tr. 54) • 

Mr. Murphy attempted to obtain information as to the extent 

a 900 foot difference in elevation would affect the test equipment. However, the National Safety Council and NIOSH could not 

give a definitive calculation (Tr. 55). 

The worksite was at 5000 feet and the pump was calibrated at 

6000 feet. At the higher altitude the pump would be drawing 

more air (Tr. 56). 

Evaluation of the Evidence 

As a threshold matter it is apparent that the pump was 

calibrated for 6000 feet and the worksite was 900 feet lower. 

The inspector agreed that this could cause some difference. In 

short, I agree with respondent's witness that the calibration . 

at 6000 feet would cause the pump to draw more air when used at 

the lower elevation. This could readily overload the sampling. 

In addition, one cassette was voided and a third did not establish 

a violation. 

On balance, I conclude that the Secretary did not sustain 

his burden of proof. 

For the foregoing reasons Citation 2091028, and all penalties 

therefore, should be vacated. 

Conclusions of Law 

Based on the entire record and the factual finding made in 

the narrative portion of this decision, the following conclusions 

of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. Respondent violated 30 C.F.R. § 56.5050(b) and Citation 

2091027 should be affirmed. 

1005 
3. Respondent did not violate 30 C~F.R. § 56.SOOl(b) and 

Citation 2091028 should be vacated. 

Based on the findings of fact and conclusions of law I 

enter the following: 

ORDER 

1. Citation 2091027 and the proposed penalty of $20 are 

affirmed. 

2. Citation 2091028 and all penalties therefor are vacated. 

Law Judge 

Distribution: 

Allen Reid Tilson, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, Texas 75202 

(Certified Mail) 

Mr,_ Brian Murphy, Loss Control Manager, M.M. Sundt Construction 

Company, P.O. Box 27507, Tucson, Arizona 85726 (Certified Mail) 

/ot 

1006 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 1987 

HOWARD H. ROSS, DISCRIMINATION PROCEEDING 

Complainant 

v. Docket No. KENT 87-43-D 

RICHLAND COAL COMPANY, BARB CD 86-83 

Respondent 

Surf ace No. 1 Mine 

ORDER OF DISMISSAL 

On May 20, 1987, Counsel for both Parties jointly filed a 

settlement in which they indicated that all matters in this case 

are settled, and that they agreed for a dismissal with prejudice. 

Accordingly, it is ORDERED that this case is dismissed with 

prejudice. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

J. Thomas Marshall, Jr., Esq., 101 s. Main Street, Room 400, 

Clinton, TN 37716 (Certified Mail) 

Gregory G. Little, Esq., Hunton & Williams, First Tennessee Bank 

Building, P. O. Box 951, Knoxville, TN 37901 (Certified Mail) 

dcp 

1007 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JUN 21987 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MID-CONTINENT RESOURCES, 

INC., 

Respondent 

DECISION 

Docket No. WEST 87-21 

A.C. No. 05-03644-03534 

Coal Creek Prep Plant 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, 

Glenwood Springs, Colorado, 

for Respondent. 

Before: Judge Cetti 

Statement of the Case 

This civil penalty proceeding arises under the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., {Mine 

Act"). The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, charges the operator of a coal mine with 

violating two safety regulations, 30 C.F.R. § 77.400(a) which 

requires the guarding of moving machine parts, and 30 C.F.R. 

§ 77.1700 which prohibits working alone in hazardous conditions. 

This proceeding was initiated by the Secretary with the 

filing of a proposal for assessment of a civil penalty. The 

operator filed a timely appeal contesting the existence of the 

alleged violations and the amount of the proposed penalties of 

$6,000 and $1,000 respectively. 

Discussion 

When this civil penalty proceeding was called for hearing on 

April 28, 1987, the parties announced upon the record that they 

had reached a settlement. 

1008 
In Citation 2831741, counsel for the petitioner moved 

that the penalty be reduced from the $6,000 originally proposed 

to $1,000. Respondent, in turn, moved to withdraw its notice 

of contest. 

Petitioner's motion was based on the fact that in preparing 

the case for hearing it was determined that the negligence in · 

this case was not as high as originally assessed. 

In Citation 2831742, counsel for the.petitioner moved to 

vacate the citation. Respondent had no objection. 

The motion to vacate Citation 2831742 was based on the fact 

that further study of the evidence revealed that a "hazardous 

condition" within the meaning of safety standard 30 C.F.R. § 

17.1700 did not exist. 

Conclusion 

After careful review and consideration of the pleadings, 

arguments, and the information placed upon the record at the 

hearing, I am satisfied that the proposed settlement disposition 

is reasonable, appropriate and in the public interest. · 

Accordingly, the motions made at trial are granted. 

ORDER 

1. Citation No. 2831741 is affirmed and respondent is 

ORDERED to pay a civil penalty of $1,000 within 30 days from the 

date of this decision. 

2. Good cause having been shown, Citation No. 2831742 and 

its related proposed penalty are vacated. 

Distribution: 

() +-~ ezt: ~ett.i 

Administrative Law Judge 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Office Building, 1961 Stout Street, Denver, 

Colorado 80294 (Certified Mail) 

Edward Mulhall, Jro, Esq., Delaney & Balcomb, PQO. Drawer 790, 

Glenwood Springs, Colorado 81602 (Certified Maii) 

/ot 

1009 
FEDERAL MINE SAFETY AND HEAL TH REViEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

.JUN 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HIGH POWER ENERGY, 

Respondent 

HIGH POWER ENERGY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

21987 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 87-26 

A. C. No. 46-06870-03510 

CONTEST PROCEEDING 

Docket No. WEVA 86-408-R 

Citation No. 2566728; 6/30/86 

Twenty Mile Surface No. 901 

DECISION 

Appearances: Virginia K. Stephens, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, for 

the Secretary of Labor; 

Roger L. Sabo, Esq., Millisor & Nobil, Columbus, 

Ohio, for High Power Energy. 

Before: . Judge Melick 

These consolidated cases are before me under Section 105(d) 

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

§ 801 et seq., the "Act'', to challenge the issuance by the Secretary-Of Labor of a citation charging High Power Energy with a 

violation of the regulatory standard at 30 C.F.R. § 77.1303(uu). 

The general issues before me are whether High Power Energy violated the cited standard and, if so, whether the violation was 

of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety or health 

hazard, i.e., whether the violation was "significant and substantial". If a violation is found, it will also be necessary 

to determine the appropriate civil penalty to be assessed in 

accordance with Section llO(i) of the Act. 

1010 
The cita.tion at bar, No. 2566728, charges as follows: 

Two workmen (blasters) proceeded to re-enter a 

charged area after an electrical storm had approached the blast site. A premature ignition 

occurred resulting in fatal injuries to the workmen. This condition/practice was determined by 

an examination and investigation at the site. 

The cited standard, 30 C.F.R. § 77.1303(uu), provides 

that "when electric detonators are used, charging shall be 

suspended and men withdrawn to a safe location upon the 

approach of an electrical storm." 

It is not disputed that on Saturday, June 28, 1986, at 

1:15 p.m. an unintentional detonation of explosives occurred 

at High Power Energy's Twenty Mile Surface Mine causing the 

deaths of employees Randall Roop and Michael Roop. The incident occurred at what was known as work site "A" in an area 

30 feet wide and 128 feet long being prepared for blasting. 

Within this area 17 56-foot deep holes had been drilled and 

loaded with approxi~ately 748 pounds of ANFO explosive and an 

electric blasting cap each. The shots were thereafter wired 

in series by Michael Roop, Randall Roop, and Lee Horrocks, 

each admittedly an experienced and qualified blaster. 

According to Horrocks, when he arrived on the blast 

site around 11:30 that morning, all but three holes had 

already been loaded with explosives. The weather at that 

point in time continued to be "nice". As they were wiring 

up the holes and connecting a lead line, gray clouds began 

to appear. According to Horrocks, as he was then stretching 

the lead line away from the blast site, he saw it begin 

hailing about 100 feet away "down the hill" and saw lightning "some distance away". By that time, however, the blast 

area had already been evacuated. As he finished stretching 

the lead line to the blasting truck parked in a safe area 

previously designated for the ignition, it began to rain. 

It took only a minute from the time he began stretching the 

·lead line to the time he arrived at the truck. 

Michael Roop, Gary Collins, and Horrocks entered the 

truck cab to get out of, the rain. Shortly thereafter Randy 

Roop approached the truck and reported tha·t upon checking 

with a galvanometer, he found the shot to be dead (meaning 

that there was a defect in the electrical system preventing 

the planned ignition). Horrocks told Randy Roop to get into 

the truck so he would not get wet. Randy stepped up to the 

truck momentarily then, apparently changing his mind, stepped 

off and said, "That's all right". 

1011 
According to Horrocks, Michael Roop then asked for two 

raincoats and left the truck following Randy Roop. A minute 

or so later Horrocks s~w lightning in the rear-view mirror, 

followed immediately by the unplanned shot blast that killed 

both Roops. The storm lasted only three or four minutes and 

the sky cleared again. 

Gary Collins testified that after he finished drilling 

the holes for the explosives, he parked the drill truck on 

the upper bench road and returned to help stem the holes 

loaded by the blasting crew. Collins recalled seeing lightning about one minute before the shot went off but this lightning was about 10 miles away and came only after he was already 

in the blasting truck. According to Collins, everyone was out 

of the blast area when the black cloud first came over the 

mountain. 

Chilton Holcomb testified that he arrived at the blast 

site around 11 that morning and helped load the ANFO into 

the holes. The holes had already been loaded and the wires 

connected when Holcomb first saw a flash of lightning one to 

three miles away in the hollow below. There were also dark 

clouds over the hollow but they were some distance away. 

It was not clear to him which way the storm was then moving 

and the sun was still shining overhead. Holcomb then drove 

the drill rig to a safe area around a protected curve in the 

upper bench road where Blasting Foreman Billy Collins also 

waited. Collins gave three siren signals announcing the 

"all clear" for the shot but the shot failed to fire. Holcomb 

testified that he then proceeded around the protected curve 

with Billy Collins to see what was going on and he then saw 

lightning, followed by the blast. 

High Power Energy's Blasting Foreman, Billy Collins, 

had supervised blasting crews since 1975. He testified that 

Randy and Michael Roop, the deceased, had worked for him for 

17 years and he considered them to be the best explosives 

loaders and the best "safety wise" of all the employees he 

ever had. When Collins arrived at the blast area, the drill 

had already pulled out and all but two holes had already 

been loaded. He recalled warning the blasting crew about a 

black cloud he saw on the horizon, but at that point they 

had only one or two holes to complete. They had already 

hooked up the lead line when Collins left in his truck to 

warn the "dumping crew" of the impending shot. Collins proceeded to the far end of the upper bench road, waved to 

Randy Roop signalling that the shot was ready, then pulled 

some 450 to 500 feet away around the bend and out of sight 

in an area protected from the blast. It was not raining at 

that poirit and Collins blew his siren three times as a preblast 

warning. At that point a thunderstorm appeared from the other 

1012 
direction over the top of the mountain behind him. Three 

or four minutes elapsed after the siren blast and nothing 

happened. Collins then returned around the bend to see the 

blast site and saw two men returning to the shot. As 

he was exitting his truck, the shot prematurely detonated. 

Thomas Dickerson, the inspector from the Federal Mine 

Safety and Health Administration (MSHA) who issued the 

citation at bar, opined that if Foreman Billy Collins had 

been present at the blasting truck, the accident would not 

have happened. Dickerson acknbwledged that there was no. industry practice or standard requiri~g a foreman to be present 

at the triggering location at a blasting site. Dickerson 

also observed that many mines do not even have a blasting 

foreman and that it was not contrary to safe industry practice 

to not have a foreman present at the actual blast site. 

The Secretary concedes in this case that the blasting 

crew, and, in particular,, Randall and Michael Roop, were 

experienced in blasting and aware of the procedures for withdrawinq from a blast site when electrical storms are aooroachina. Indeed. thP. Secretary acknowlPdges that the fatalities 

occurred when the victims, who knew an electrical storm was 

present, failed to comply with a known company policy and 

federal regulations requiring persons to be withdrawn to a 

safe location away from the blast area during an electrical 

storm. 

The evidence is clear that there was a violation of the · 

cited standard in this case but that such violation was solely the result of the unforeseeable and aberrational behavior 

of the two deceased employees. The employees were indeed in 

the process of evacuating the blast site and most likely had 

already evacuated the blast site to a safe area upon the first 

evidence of an approaching electrical storm. It is acknowledged that the deceased employees were highly qualifie~ and 

experienced blasters who were well-trained and knew of the · 

prohibitions against being on a blast site during an electrical 

storm. Under the circumstances, it could not reasonably be 

foreseen that .those employees would, in.the midst of a downpour 

and evidence of an electrical storm, return to the blast site. 

It is conceded by the Secretary that it was not standard or 

accepted industry practice to require a blasting foreman to 

be present at the triggering location and, indeed, it was 

acknowledged that Foreman Billy Collins' presence to block 

one entrance to the blast site on the upper bench road was 

not inconsistent with safe practices. 

The law is well established, however, that an operator 

is liable for violations of the Act committed by its employees, 

1013 
even if ·it is totally without fault. Sewell.Coal Co. v. 

FMSHRC, 686 F.2d 1066 (4th Cir. 1982); Allied Products Co. v. 

FMSHRC, 666 F.2d 890 (5th Cir. 1982); Secretary v. Asarco, Inc., 

8 FMSHRC 1632 (1986); Southern Ohio Coal Co., 4 FMSHRC 1459 

(1982); American Materials Corp., 4 FMSHRC 415 (1982); KerrMcGee Corp., 3 FMSHRC 2496 (1981); El Paso Rock Quarries, Inc., 

3 FMSHRC 35 (1981}. 

dt is also clear from the evidence in this case that the 

violative condition was of high gravity and "significant and 

substantial". ·Secretary v. Mathies Coal Co., 6 FMSHRC 1 (1984). 

In assessing a penalty herein I have also considered that the 

mine operator is of modest size and has no real history of prior 

violations. Most significantly, however, I find that the 

violation was not the result of any operator negligence. Indeed, as previously indicated, the evidence clearly shows that 

the violation was the result of unanticipated and aberrational 

employee behavior beyond the control of the operator's agents. 

Within this framework of evidence, no more than a nominal 

penalty of $1 is appropriate. 

ORDER 

Contest proceeding Docket No. WEVA 86-408-R is denied. 

Citation No. 2566728 is affirmed and High Powe Energy is 

directed to pay a civil penalty of $1 within 3 days of the 

date of this decision. 

Distribution: 

Virginia K. Stephens, Esq., Office of the Solicitor, u. S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Roger L. Sabo, Esq., Millisor & Nobil, 41 South High Street, 

Suite 2195, Columbus, OH 43215 (Certified Mail) 

yh 1014 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JIJN 3 1987 

JOE ARNOLDI, DISCRIMINATION PROCEEDING 

Complainant 

v. 

ASARCO, INCORPORATED, 

Re.spondent 

. . Docket No. WEST 85-161-DM 

Coeur Mine 

DECISION 

Appearances: Nathan s. Bergerbest, Esq., Cotten, Day, Doyle, 

Washington, D.C., 

for Complainant; 

Fred M. Gibler, Esq., Fvons, Keane, Koontz, Boyd, 

& Ripley, Kellogg, Idaho, 

for Respondent. 

Before: Judge Morris 

Complainant Joe Arnoldi brings this action on his own behalf 

alleging he was discriminated against by his employer, ASARCO, 

Incorporated, in violation of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c.A. § 801 et· seq. 

The applicable statutory provision, Section 105{c){l) of the 

Act, now codified at 30 U.S.C.A. § 815{c){l), in its pertinent 

portion provides as follows: 

No person shall discharge or in any other manrier discriminate against ••• or otherwise interfere with the exercise 

of the statutory rights of any miner ••• because such 

miner ••• has filed or made a complaint under or relating 

to this Act, including a complaint notifying the operator 

or the operator's agent, or the representative of the miners 

•.• of an alleged danger or safety or health violation ••• 

or because such miner ••• has instituted or caused to be 

instituted any proceeding under or related to this Act or 

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

or because of the ex~rcise by such miner •.• on behalf of 

himself or others of any statutory right afforded by this 

Act. 

~fter notice to the parties, a hearing on the merits was 

held in Spokane, Washington commencing on December 2, 1986. 

The parties filed post-trial briefs~ 

1015 
Applicable Case Law 

In order to establish a prima facie case of discrimination 

under Section 105{c) of the Mine A.ct, a complaining miner bears 

the burden of production and proof to establish that (1) he 

engaged in protected activity, and (2) the adverse action complained of was motivated in any part by that activity. Secretary 

on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 

2797-2800 {October 1980), rev'd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may rebut 

the prima facie case by showing either that no protected activity 

occurred or that the adverse action was not in any part motivated 

by protected activity. If an operator cannot rebut the prima 

facie case in this manner it nevertheless may defend affirmatively by proving that (1) it was also motivated by the miner's unprotected activities, and ·c2> it would have taken the adverse 

action in any event for the unprotected activities alone. The 

operator bears the burden of proof with regard to the affirmative 

defense. Haro v. Magma Copper Co., 4 FMSHRC 1935, 1936-38 

(November 1982). The ultimate burden of persuasion does not 

shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20. 

See also Boich v. FMSHRC, 719 F.2d 194, 195-96 {6th Cir. 1983); 

Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 

1984){specifically approving the Commission's Pasula-Robinette 

test). The Supreme Court has approved the National Labor 

Relations Board's virtually identical analysis for discrimination 

cases arising under the National Labor Relations Act. NLRB v. 

Transportation Management Corp., 462 U.S. 393, 397-403 (1983). 

Summary of the Evidence 

Complainant's Evidence 

Wendell Kunst, William Arthur, MSHA Inspector James Arnoldi, 

Joe Arnoldi and Kim Bradshaw testified for complainant. 

On March 18, 1985 WENDELL KUNST had been assigned to stope 

277 at level 3100. His co-worker, also a production miner, was 

Bob Chavez. Complainant Joe Arnoldi (sometimes hereafter re- · 

ferred to as Joe, or Mr. Arnoldi) served as the nipper. Joe gets 

supplies for the miners and operates the hoist in the raise (Tr. 

14-16, 33, 336). A nipper's performance is important to the 

efficiency of the mining operation (Tr. 16). Joe had done a good 

job for the miners on other occasions (Tr. 16). They never found 

him "goofing off" and his work never adversely affected their 

production (Tr. 17). 

On March 18 the miners left Joe at the tugger, about 60 feet 

above the stope, with instructions to await their call for the 

skip (Tr. 18, 19, 21). They didn't call for it. Kunst didn't 

see Joe sleeping that morning nor did he know one way or another 

if he was sleeping {Tr. 18-20). 

1016 
Kunst saw Michael Lee (mine manager) and William Arthur 

(shift boss) that morning. Lee and Arthur didn't ask if Joe was 

sleeping or unresponsive to their needs (Tr. 19, 30, 31). 

It is important for the nipper to stay alert at all times 

(Tr. 20). Kunst thought the tugger was safe. But it was in 

close proximity to the haulage train (Tr. 21, 22). A miner can 

tell when a train approaches (Tr. 23). 

WILLIAM ARTHUR, shift foreman at the Coeur Mine, didn't see 

Arnoldi sleeping on March 18 (Tr. 25). Arthur further identified 

a document filed with the Idaho Industrial Commission. The 

document stated that the shift boss and ·mine superintendent both 

observed Joe Arnoldi asleep at the top of 277 (Tr. 25-28). In 

fact, Arthur indicated that Arnoldi's eyes were open when he saw 

him (Tr. 28). 

Arthur had been walking about six or seven feet behind Lee 

as they approached the 277 stope. They were checking to see if 

the miners were doing the work safely and if they needed material 

(Tr. 29). When Arthur first saw him Arnoldi was six feet from 

the tugger sitting down.or leaning against a rock or some burlap. 0 

He then heard Lee tell Arnoldi that he wasn't supposed to be 

sleeping on the job (Tr. 30, 35, 55). Lee had no conversation 

with Arthur before he took Arnoldi out of the mine except to ask 

if such action was justified (Tr. 31). To take a miner to the 

top usually means he's going to be fired (Tr. 32). Arthur didn't 

recommend to Lee that Arnoldi be fired or suspended (Tr. 32, 33). 

Arthur had been interviewed by MSHA special investigator 

Lopez. He kept one copy of the interview and turned one over to 

Andre Douchene, the mine manager (Tr. 37, 40). Arthur did not 

indicate to the company attorney, Fred Gibler, that he did not 

want to verify the accuracy of the MSHA statement. However, Mr. 

Gibler represented such was Arthur's position (Tr. 38, 56). 

Lopez did not followup with Arthur (Tr. 57). 

In February 1985 MSHA inspector Jim Arnoldi and Don Downs 

issued ASARCO a loose ground citation. The cited area was under 

Arthur's jurisdiction (Tr. 39, 57). Mine manager Douchene 

attempted to fire miners Ernie Myles and Bob Magoon because of 

the citation (Tr. 40). Douchene wanted them fired because they 

had disregarded his directions to bar down the slab. Joe Arnoldi 

was the nipper for Magoon and Myles (Tr. 40, 58). Douchene 

cooled down when he learned Arthur had told them not to further 

bar down the loose ground (Tr. 41, 58). Jim Arnoldi and Downs 

also inspected the 277 raise, on the 3100 level (Tr. 59). 

The tugger at the 277 raise, 3100 level is mounted on a 10 x 

10 and it hoists timber and supplies in the raise. It has 700 

feet of cable (Tr. 42, 43). When the tugger is raising the skip 

the operator would be watching either the wire drum or the skip 

(Tr. 44, 45). Arthur has observed Joe Arnoldi operating the 

1017 
tugger while standing on the 10 x 10 cap (Tr. 45). Arthur has 

seen other miners operate the tugger in a similar fashion (Tr. 

45). The cap is behind the timber and the haulage train track 

(Tr. 46). Some tuggers were mounted on the other side of the 

timber. This particular tugger was mounted between the haulage 

train track and the timber because there was already a tugger 

bench mounted there (Tr. 46). The clearance between the train 

track and the tugger measures 30 to 32 inches (Tr •. 46). When a 

miner is operating the tugger it would be 20 inches from the back 

of his foot to the train track. The train itself extends about 

10 ipches so the clearance is about 7 to 10 inches wtien the train 

passes (Tr. 47, 48). 

Arthur didn't consider this a safety hazard because the 

operator probably didn't stand there when the train went by. By 

moving one step either direction the tugger operator would be out 

of the way (Tr. 47, 48). 

The slusher, weighing 400 to 500 pounds, is the heaviest 

item hoisted by the tugger (Tr. 48). If a train were to come 

through while lifting the slusher the nipper would be expected to 

set the brake and move aside (Tr. 49). The nipper could see 

lights on the five car train for 100 feet or more (Tr. 49). 

However, a curve obstructs the motorman's visibility of Arnoldi's 

location (Tr. 49, 50). If the engine was pushing the train the 

motorman would be 40 to 50 feet back towards the rear of the 

train (Tr. 50). Usually there is a miner, called a swamper, who 

rides on the second car of the train (Tr. 51). 

A nipper can usually see the train with his side vision 

(Tr. 54). There are no special safety rules directing the 

motorman to stop and be certain that the nipper is busy at the 

34-277, 3100 level (Arnoldi's work station)(Tr. 54). 

When the train is in motion it rings a bell. But the exhaust fan near Arnoldi's work station might drown out such noise 

(Tr. 54). Neither Joe Arnoldi nor any other miner ever complained to Arthur about the height of the tugger or its distance from 

the track (Tr. 59). During a work shift a nipper would operate' 

the tugger, at the most, an hour and a half (Tr. 60); An exception would arise· when the operator was raising a crib. That 

operation might take all day (Tr. 60). 

Arthur has never had any problems with nippers getting out 

of the way of trains (Tr. 61). 

On March 18 the train motor was not running. The train was 

sitting at the top of 277, right at the tugger (Tr. 61). 

Witness Arthur identified his handwritten statement from his 

notebook (Exhibit E). Arthur didn't talk to Lee or Andre 

Oouchene before writing his notes (Tr. 64>. 

On the morning of March 18th the temperature at Arnoldi's 

work station was 75 to 80 degrees (Tr. 66). Arnoldi's position 

was a good place to sit (Tr. 66). Arnoldi's area was reasonably 

clean that day. 

1018 
Other than for Lee's statement Arthur does not have any 

reason to believe that Joe Arnoldi was sleeping that morning (Tr. 

68} • 

MSHA INSPECTOR JAMES ARNOLDI has been assigned to the 

Spokane Coeur d'Alene, Idaho field office for ten years. He is 

well respected by a large majority of his fellow inspectors (Tr. 

70-72). 

MSHA's lead inspector is normally permanently assigned to a 

mine and he normally issues the citations arising during any 

inspections CTr •. 73). The "second" inspector could also write 

citations. If they both observed a violation the lead inspector 

would write the citation {Tr. 73). Inspector Arnoldi was not the 

lead inspector for ASARCO's Coeur unit (Tr. 74). Don Downs had 

that position (Tr. 75). Most of the time Inspector Downs was 

alone when he inspected the Coeur mine (Tr. 75). 

In 1984 Inspector Arnoldi had conducted hoist inspections at 

the mine (Tr. 76). In February 1985 Inspector Arnoldi's 

supervisor assigned him to the Coeur mine as the second inspector 

(Tr. 75, 76). The next MSHA inspection commenced February 5 and 

concluded February 21 (Tr. 76). 

Inspector Arnoldi's status was questioned at the mine and, 

in front of shift bosses and manager Carole Ward, Downs stated 

that Arnoldi was just his XXXX secretary and he was there to take 

notes (Tr. 77, 116, 117). Inspector Arnoldi complained to his 

supervisor about Inspector Downs'·· comments <Tr. 78}. 

During the inspection in February 1985 Inspector Downs 

issued three citations. Inspector Arnoldi participated and 

~oncurred with Downs that the citations should have been issued 

(Tr. 79, 80). An S & S citation was issued for loose ground on a 

hanging wall (Tr~ 80). Bradshaw and Bill Arthur were also 

present (Tr. 80). The two miners involved in this incident were 

initially fired for this willful violation. Joe Arnoldi was, in 

effect, an MSHA informant concerning this event (Tr. 81>. 

Inspector Arnoldi advised Downs that the loose ground violation 

was ~ore serious than they had initially anticipated (Tr. 82). 

There was a second loose ground citation (Tr. 82). ASARCO did 

not dispute the S & S loos~ ground citation but the company 

disputed the non S & S loose ground citation (Tr. 86). 

Inspectors Downs and Arnoldi attended the closeout 

conference with company representatives Andre Douchene and Kim 

Bradshaw (Tr. 83). Douchene was also the elected miner's 

representative (Tr. 83, 84). Inspector Arnoldi had told some of 

the miners that they could elect their own miner's representative 

from within the ranks of the miners (Tr. 85). In discussing the 

non S & S citation Inspector Arnoldi pointed out that the ground 

fractures had no oxidization around them. Douchene then got 

redfaced and puffed up he said that "you may be the law but I'll 

show you who the law is around here". He then stormed out the 

door (Tr. 87). In two or three minutes he returned and stated 

1019 
"All I n~ed is one letter to get rid of you around here." Inspector Arnoldi told him to write the letter (Tr. 87). He also 

stated he was there under supervisory orders and he didn't care 

to be at the mine (Tr. 87). Douchene then stated that the inspector was involved in a.conflict of interest with his family 

working there. In addition, Douchene stated "You have too much 

[family] here to XXXX around too much" (Tr. 87, 88). 

MSHA's conflict of interest policy, set for in Exhibit C3, 

does not prohibit an inspector from inspecting a mine where a 

relative works (Tr. 89, 91). Joe Arnoldi was his only blood 

relative at the mine. However, by marriage there are two 

stepsons, two brothers-in-law, nephews and an uncle. There were 

enough relatives to be concerned about retaliation (Tr. 92, 123). 

Joe is the only relative working at the Coeur unit with the last 

name of Arnoldi (Tr. 92). 

The inspector told his supervisor about Douchene's remarks 

(Tr. 92, 93). 

On March 19, 1985, the following day, MSHA was intending to 

inspect ASARCO's hoist at the Galena mine three miles from the 

Coeur mine (Tr. 93, 94). In arranging this inspection Inspector 

Arnoldi called Douchene and told him they would inspect the hoist. 

Then ASARCO's schedule would be "straightened out for the year" 

(Tr. 95). The inspector denied there was anything to straighten 

out on the hoist inspection (Tr. 95). In that conversation 

Douchene didn't tell Inspector Arnoldi that Joe was suspended, 

[or was about to be suspended]. Inspector Arnoldi hadn't seen 

his son for a week CTr. 95). 

Later that afternoon Mike Lee called Inspector Arnoldi and 

said he wanted Joe to come to the mine as soon as possible CTr. 

97). The next night Inspector Arnoldi learned that Joe had been 

fired (Tr. 97). · Inspector Arnoldi did not immediately connect 

his son's discharge with his official inspection activities (Tr. 

9 7) • 

The hoist inspection at the Coeur unit was cancelled due to 

a hoist malfunction at a different mine (Tr. 98). 

Joe advised hi~ father that Douchene had told him to 

"rustle" every day and keep rustling and he'd get his job back 

(Tr. 99). 

Sometime in May Inspector Arnoldi wrote a statement (Exhibit 

C4). At that point he believed ASARCO was discriminating against 

another relative, Steven White (Tr. 100). This particular 

incident involved an injury to White coupled with Douchene's 

directive that White return to work or be terminated (Tr. 100, 

101, 135). 

Inspector Arnoldi claimed that Andre Douchene intimated him 

in violation of the U.S. Criminal Code CTr. 103). If the inspector had inspected the tugger at the 34-277 raise 3100 level 

he would have issued a citation due to the fact that there was 

1020 
only ten inches between the tugger and the railroad car (Tr. 104, 

138). Joe told his father about this unsafe condition (Tr. 139). 

The inspector probably didn't tell Joe to put the complaint in 

writing. The inspector did not inspect it himself (Tr. 139-, 

140). 

Inspector Arnoldi has inspected the Coeur mine.a dozen 

times in a three year period (Tr. 104, 105). Except for the 

February 1985 inspection, Carole Ward was the unit manager. Joe 

Arnoldi was originally hired by ASARCO after his father had a 

discussion with the manager (Tr. 105-108). Inspector Arnoldi did 

not solicit Ward. for a job for.his son (Tr. 144). Ward knew Mr. 

Arnoldi was an MSHA inspector because he had been there several 

times (Tr. 108). In 1982 or 1983 other MSHA inspectors conducted 

the regular inspections at the mine (Tr. 108). 

Inspector Arnoldi has reviewed MSHA's conflict of interest 

policy at least annually (Tr. 124). He had not told his 

supervisor that he had seven or eight family members at the Coeur 

mine (Tr. 125). But he told his supervisor that he didn't feel 

comfortable going there. ·The MSHA supervisor knew he had many 

relatives working at the mine (Tr. 125, 126, 142). Inspector 

Arnoldi didn't feel there was a conflict of interest to 

investigate a mine where relatives work (Tr. 141, 142). 

About noon on March 19, 1985 Inspector Arnoldi called Mr. 

Douchene and advised him of a noist inspection. At that time 

prior notice of such an inspection was an accepted practice. The 

prior notice permitted the operator to have its ropemen and 

electricians available (Tr. 126, 127). 

On May 15th, when he wrote his explanation seeking criminal 

penalties against Andre Douchene, Inspector Arnoldi knew the 

company claimed Joe had been caught sleeping. But nothing 

appears in the statement to that effect (Tr. 128-130; Ex. C4). 

The inspector's son claimed he had not been sleeping and the 

operator took a contrary view (Tr. 131). In his statement Inspector Arnoldi also wrote that he thought Douchene's statements 

at the closing conference were made in jest. But he meant he 

hoped he was only jesting. Since Douchene was "immediately" 

angry Inspector Arnoldi didn't believe he was merely jesting (Tr. 

131, 132; Ex. C4). 

Inspector Arnoldi agrees that it is not a safe practice to 

sleep in the raise CTr. 138). 

The witness believed that Andre Douchene carried out his 

threats by terminating his son (Tr. 143). 

In 1981 MSHA inspectors were passing out miner's rights 

booklets at the mine (Tr. 85). The MSHA manual instructs the 

inspector to notify miners .of their rights and the booklet serves 

that purpose (Tr. 86). 

1021 
It was Andre Douchene who ran the inspectors off the site 

for distributing the rights booklet (Tr. 85, 110-112). No 

citations were written as a result of that incident (Tr. 113). 

When he was recalled as a witness Inspector Arnoldi changed his 

testimony and indicated that Dave Lewis, and not Andre Douchene, 

was the ASARCO manager at the time of the pamphlet incident (Tr. 

365-366' 37]_). 

Larry Nelson, the supervisor of the local MSHA off ice, in a 

written memorandum, stated the MSHA pamphlets could be· 

distributed (Tr. 366, 367; Ex. C23). 

JOE ARNOLDI is now employed as a downhole driller and he 

resides in Michigan (Tr. 147, 148). In his current employment he 

has received no warning slips or complaints about his job 

performance. He also works overtime at his present job (Tr. 

148). 

The witness was employed by ASARCO from April 19, 1981 to 

March 20, 1985. In the instant case he seeks reinstatement (Tr. 

149). Before moving to Michigan he worked for the U.S. Forest 

Service for a month and for an asphalt company for a few weeks 

(Tr. 150). 

In high school Joe's highest grade in English was a "D". He 

also failed the course on one occasion. After quitting high 

school he worked in the oil fields and elsewhere. He eventually 

received a general education diploma (Tr. 151). 

At ASARCO his entry level job was that of a mucker. He was 

later promoted to nipper motorman (Tr. 152). He also filled in 

stopes and worked with the repair crew (Tr. 152). His pay was 

based on production (Tr. 153). 

ASARCO maintains a warning slip procedure. A miner is 

terminated if he receives three such slips in a 90 day period. 

Joe has received nine warning slips (Tr. 153, 190). 

On August 7, 1981 he received, deservedly, a warning slip 

for carrying explosives on a battery locomotive (Tr. 154, 191). 

On April 18, 1983 he received a slip for failing to follow 

orders and for unsatisfactory work. He stated why he didn't 

deserve this warning (Tr. 154, 230). 

On April 27, 1983 he was injured on the job when struck in 

the left wrist by rocks falling down the raise (Tr. 154, 155, 

214, 215; Ex. CS). Joe told his supervisor, Charlie Castelli, he 

wasn't going to get under the raise in these circumstances. His 

supervisor then issued a warning slip for poor work (Tr. 155, 

156, 191). This incident was discussed at a safety meeting on 

May 25, 1983 (Tr. 157~ Ex. C6). 

1022 
Mr. Arnoldi suffers from allergies. His condition was 

diagnosed at .age 7 (Tr. 158, 159: Ex. C7 >. He has continued to 

receive treatment while employed by ASARCO (Tr. 160, 194). He 

always presented a doctor's release when he returned to work. A 

failure to present a doctor's release will result in an unexcused 

absence. ASARCO's health fund paid the medical bills (Tr. 161, 

195, 196). When the allergies are really severe Joe did not go 

to work. He believes the concern about his allergies renders it 

unsafe for him to be on the job (Tr. 161, 162). 

Mr. Arnoldi.received two unexcused absences in the 30 day 

period before August 11, 1983. At that time he was visiting his 

doctor for his allergy condition (Tr. i62). The ASARCO health 

plan also paid for those visits (Tr. 163>. Because he had a 

doctor's excuse he didn't think he should have received the 

absences (Tr. 163, 226). 

On October 14, 1983 he received a warning slip and a five 

day suspension for allegedly sleeping on the job. Joe denied he 

was sleeping. He protested to Andre Douchene on the third day. 

Douchene put him back on the job the following day (Tr. 169, 170, 

200). Ron Maehl's diary entry of October 14-83 explains the 

reason for the layoff (Tr. 170: Ex. Cl2). This warning slip was 

not deserved (Tr. 227). 

Mr. Arnoldi couldn't recall if he deserved the warning slip 

of May 22, 1984. But he thought it was "okay" because Andre 

Douchene had said they were allowed to miss two days a month (Tr. 

198, 199). 

On May 22, 1984 a warning notice for hauling a chain and 

motor was not deserved because he was a passenger on the motor. 

However, he did not protest the notice: it only makes things 

worse to compla_in (Tr. 199, 200) • 

On July 27, 1984 the witness received a warning slip for two 

unexcused days off in a 30 day period. The absence was because 

of allergies. He believed that warning notice was de~erved (Tr. 

164, 197, 227, 229). 

On August 16, 1984 he received a slip for three days unexcused absences which was partially duplicative of the prior 

warning slip CTr. 164, 197). The diary of Michael Lee explains 

the August 16th warning (Tr. 164: Ex. C9). The diary indicates 

that Mr. Arnoldi did not show up for work on July 20~ July 27 and 

August 15th (Tr. 166). ~e had a justifiable excuse since he was 

under a doctor's care and suffering from, and being treated for, 

allergies on these dates (Tr. 166, 167, 221, 229: Ex. Cl0). 

On December 4, 1984 he received a warning notice for failing 

to report for work on November 16 and December 3 but he thought 

he might have been on vacation (Tr. 168, 1691 Ex. Cll). 

1023 
Joe's father is MSHA Inspector Jim Arnoldi, who inspected 

the Coeur uni~ in February 1985 (Tr. 171, 172). As a result of 

that inspection co-workers Magoon and Myles told Joe Arnoldi they 

had been fired. Also Douchene was mad because ASARCO had been 

cited for loose ground (Tr. 172, 173). Joe related this 

information to his father (Tr. 173, 206). Joe was aware of his 

miner's rights but Magoon and Myles were not (Tr. 205, 206). 

On March 18, 1985 Joe arrived at work about 6:35 a.m. (Tr. 

173). The shift starts at 7 o'clock (Tr. 174). He was nipping 

at the 277 raise for Chavez and Kurst. The miners instructed him 

to await their·signals (Tr. 174, 175). After some preliminary 

work he sat down behind the tugger. The temperature was 90 to 95 

degrees and he felt a little faint. The fan had been turned off 

(Tr. 175, 207). 

While sitting five or six feet from the tugger Bill Arthur 

and Mike Lee walked up. Lee said "caught you sleeping". Joe 

didn't tell Lee that this was the second time he'd been caught 

sleeping. Lee asked Joe what I had done for the weekend. [Joe 

had attended a St. Patrick's Day party in Butte, Montana](Tr. 

176, 207). After talking about the weekend, Lee and Arthur went 

down the raise. Lee subsequently reappeared and said he was 

going to bring Joe out for sleeping (Tr. 177). Lee also indicated he was going to talk to Douchene. Joe didn't see 

Douchene that morning. About ten minutes later Lee told Joe he 

was temporarily suspended. Lee also asked Joe of an address 

where he could contact him (Tr. 177, 178). Two days later, on 

March 19th, Lee requested that Joe come to the mine (Tr. 178). 

Lee then fired him. He was given his paycheck but no vacation 

check. Joe believed he was fired in retaliation for his father's 

MS~A activities (Tr. 179). His termination notice read "absolutely no rehire" (Tr. 375). 

The following day Joe contacted Douchene and was told to 

keep on rustling and he'd hire him oack like he did Bob Elisoff. 

Joe didn't tell Douchene or Lee that he wasn't sleeping on 

the morning of March 18th. He believed that being aggressive 

would not get his job back. 

He rustled by asking Lee or Douchene every morning at the 

main office for 55 or 60 days if they were hiring. He was not 

reoffered a job at the Coeur unit (Tr. 180, 181, 375, 377). He 

was treated fairly except towards the end (Tr. 182). 

After being fired Joe filed for unemployment benefits with 

the State of Idaho. In filling out the state forms he couldn't 

write well and he couldn't write the reason why ASARCO discriminated against him. The reason he wanted to put down was that he 

was discriminated against because of his dad's MSHA inspections. 

He also wanted to state he was not sleeping. The papers he filed 

are accurate (Tr. 205; Ex. R-A). Instead of putting down his 

reasons why he was fired he put down ASARCO's reasons, i.e., that 

1024 
he had been caught sleeping at the 277 raise (Tr. 183, 200-203, 

230, 231; Ex~ R-A). The State of Idaho held he was ineligible 

for unemployment benefits and he later told that his appeal time 

had lapsed (Tr. 213, 218). 

In his complaint filed with MSHA he alleged that his 

complaints about the tugger caused him to be fired. The 

complaint was that he couldn't operate the tugger comfortably and 

he could not see over the drum to observe the skip (Tr. 184, 185). 

Joe had been instructed not to operate the tugger when the train 

was in the area. But he could not hear the train or see its trip 

lights (Tr. 85, 186). Ninety, percent of ·the time the swamper 

stayed back at the raise to pull down the muck (Tr. 186). There 

was no means of communicating with ·the train motorman who is 50 

to 60 feet back from the front when he is pushing the train. Joe 

complained about the height of the tugger as well as its 

proximity to the haulage train track. His complaints were· 

directed to Bill Arthur and also discussed in a safety meeting. 

He also told his father that the tugger was too high and too 

close to the tracks. His father said he wasn't inspecting in 

that area and he recommended that Joe talk to Bill Arthur. 

Arthur thought the tugger was fine. To compensate for the 

height of the tugger Joe stood on a pi~ce of timber set between 

the tugger and the track. He thought this was dangerous since 

the fifth wheel could hang up and derail the train (Tr. 186-188, 

207-209). There were a few times when Joe was busy with the 

tugger and had to jump out of the way of the train (Tr. 188). 

When he was a motorman Joe complained about the condition of 

the brakes and the controllers on the locomotive. He wrote up 

this condition on December 21, 1982 and the following days (Tr. 

189). The motors were fixed on December 28, 1982 (Tr. 189). Joe 

does not claim that the 1982 incident caused him to be fired (Tr. 

190) • 

Joe did not know what happened at the February 21, 1985 

close out conference but his father told him about it and said 

he should "watch his back" CTr. 212). He learned about the conference about the time he filed his report with MSHA's special 

investigator Lopez CTr. 212). 

KIM BRADSHAW, the company's safety engineer, works with the 

Coeur and Galena units. He is in charge of training and safety 

(Tr. 244, 322). The unit manager and mine superintendent set 

safety policy for the Coeur unit (Tr. 245). 

Bradshaw attended a closeout conference on February 21, 1985. 

MSHA Inspectors Jim Arnoldi, Don Downs, and Emmett Sullivan were 

present. Andre Douchene, the Coeur manager, was also present 

(Tr. 247). The conference had concluded and Arnoldi said he 

would be inspecting the mine; further, he said to Andre that if 

they had better management they wouldn't have a problem. Andre 

took it in jest, laughing and smiling. He replied "You may be 

1025 
the law but we will see who the law is around here (Tr. 248-252). 

The further thrust of the statement was that a letter would 

prevent 'Jim Arnoldi from inspecting the mine (Tr. 253 >. The 

comment about the letter followed after Jim Arnoldi stated that 

Downs was going to be moved and that he would be the next 

inspector (Tr. 254). Bradshaw was not involved when Joe Arnoldi 

was fired 26 d~ys later (Tr. 254, 255, 331-336). 

Bradshaw conducts and keeps minutes of his safety meetings 

(Tr. 255, 325, 326). His notes would summarize any pr.oblems (Tr. 

256).' On October 25, 1983 miner Chavez commented that the boss 

was sleeping. Bradshaw didn't distinctly remember taking the 

complaint to management (Tr. 258). Nor did Bradshaw know if the 

comment was investigated (Tr. 258, 259). The company policy 

concerning sleeping on the job was discussed at safety meetings 

<Tr. 259; 263, 264; Ex. Cl7). The company policy prohibits 

sleeping in the mine. Punishment for sleeping could include 

warning slips, time out, or being brought out of the mine (Tr. 

261, 265). Bradshaw has probably told miners they would be 

suspended if they were caught sleeping (Tr. 262) •. 

Joe Arnoldi expressed concerns about safety. Particularly, 

he thought a swamper should ride in the second to last car 

(Tr.265). Swampers are not assigned to every haulage train in 

the Coeur unit (Tr. 266). 

Joe also complained about the incident in which he was 

injured. The miners were instructed at the next meeting to watch 

out for nippers below CTr. 267). Joe also complained about trip 

lights. The lights are on the trains at the mine (Tr. 269). At 

a safety meeting on February 15, 1983 the interaction of miners 

and haulage trains was discussed (Tr. 270, 271; Ex. Cl9). 

Bradshaw has received MSHA training and he was familiar with 

30 C.F.R. § 57.905 concerning train movements (Tr. 272, 273). 

Neither on March 18, 1985 nor at any other time did Joe 

Arnoldi express any concern about the proximity of the tugger to, 

the train track, or about its height (Tr. 273, 328>. Bradshaw 

measured the distanc~ from the back of his foot to the train 

track at 19 inches. It was 30 inches from the track to the 

tugger. The train extends out on both sides of the track some 8 

to 12 inches (Tr. 275-277). Arnoldi's work station was situated 

between the tugger and the train track. The tugger could only be 

operated from this position. In sum, the distance between the 

back of the nipper's foot and the moving train would be seven 

inches CTr. 277). Trip lights, warning bells, miners' cap lamps 

are designed to warn people of the train's movements. Trains 

that pass the 34-277 raise at the 3100 level are pushed (Tr. 278). 

There were two curves, one 30 degrees and the other 40 degrees. 

On the 40 degree curve Bradshaw hadn't tested it but he believed 

the motorman, 47 or 48 feet back, could not see Arnoldi at his 

work station (Tr. 279-281). A nipper at this location, if he was 

looking, could see the trip light when the train was rounding the 

1026 
40 degree curve (Tr. 282, 286). If people were engaged in normal 

activity they probably would not hear the train (Tr. 282, 283). 

The noise level at this location, excluding the train, was 

measured at 70 dBA. A nearby auxiliary fan, which operated 

continually, was measured at 85 dBA. The tugger exhaust runs 

about 100 dBA (Tr. 284). The noise from the tugger would override the train noise. The bell on the train is 75 dBA (Tr. 285). 

In sum, the noise from the tugger and the fan would prevent a 

miner from hearing the train. Accordingly, neither the bell nor 

the light were effective in warning people with certainty that 

the train was coming at the 34-277 raise, 3100 level (Tr. 286). 

The company has never been cited for the tugger nor for a train 

coming close to a nipper CTr. 329, 341). 

Joe should be able to see the illumination of a cap light. 

While the motorman wears the same cap light as any other miner 

Joe would probably not be able to tell if it was a train or 

another miner approaching CTr. 286-289). The motorman should be 

able to see the illumination from Joe's light (Tr. 289). The 

intense part of the head light is directed ahead but there is 

also illumination to the side (Tr. 291). 

ASARCO has safety procedures for haulage trains but no 

specific rules relating to Joe's work station (Tr. 291, 292). 

The safety manual states that the motorman must stop until 

everyone is in the clear (Tr. 292). Bradshaw had not heard any 

complaints concerning the train at Joe's work station (Tr. 292, 

293). There are "slow down" signs at air doors but no such signs 

on the curves at 34-277 raise, llOO level (Tr. 293). The safety 

meetings never discussed the hazards at 34-277 raise, 3100 level 

(Tr. 294, 295). The safety manual does not discuss any hazards 

at that location nor is there any company policy or speed 

restriction relating to the location (Tr. 295, 299). Bradshaw 

had never instructed any motormen to get out and be sure that no 

miner was opera'ting the tugger at the 34-277/3100 location before 

moving a train past that area (Tr. 297). Nor was that discussed 

at the safety meetings. There are some areas in the mine where 

. you would not want to operate the train at full speed,. The 

safety manual stresses that the motor must be under control at 

all times (Tr. 298). The motorman knows where to slow down CTr. 

299). 

Trains infrequently derail at the Coeur unit. Such derailments are usually caused by loose track or muck (Tr. 300). 

ASARCO does not have its own heat standards in the mine. 

The ventilation system, generated by fans, automatically runs at 

all times (Tr. 302). 

In 1984 the Coeur mine accident/incident rate was about 1.4 

(Tr. 304). MSHA usually investigates any nonfatal accidents at 

the mine (Tr. 306, 307). 

1027. 
When Joe started in 1981 he was instructed of his rights 

under the Mine Act (Tr. 308, 309). But he was not given a copy 

of the MSHA booklet because there is no such legal requirement 

(Tr. 309). Management did not want the Miner's Rights booklet 

distributed for that reason (Tr. 309, 310). After 1981 Bradshaw 

did not distribute the booklets as part of the miners' orientation (Tr •. 310). In teaching the newly hired miners Bradshaw 

reviews a typed copy of the booklet CTr. 311). 

On March 18, 1985 Andre Douchene had been elected as the 

miners' representative by two ballots. There are 150 miners at 

the mine CTr. 314). 

On December 8, 1981 MSHA inspectors Alvin Fischer and Donald 

L. Myers handed out MSHA booklets (Tr. 317, 318). One of the 

booklets were turned over to the then unit manager, David L. 

Lewis (Tr. 318). After an investigation it was concluded that it 

was not MSHA's responsibility to distribute the pamphlets. Lewis 

then wrote to Russell, the MSHA subdistrict manager for the Coeur 

mines (Tr. 318, 319). A conversation followed with the inspectors and Lewis directed them to stop such distribution (Tr. 

319; Ex. 21>. On February 24, 1982 the then Assistant Secretary 

of Labor for Mine Safety and Health conf itmed that the practice 

of distributing such pamphlets was "not representative of any 

official MSHA policy" CTr. 347, 348; Ex. U). 

Respondent's Evidence 

MSHA Inspector Donald F. Downs, Mike Lee and Andre Douchene 

testified for respondent. 

DONALD F. DOWNS, an MSHA inspector for over 12 years, is 

assigned to the Coeur d'Alene office (Tr. 383). 

He first began inspecting ASARCO in 1984. There have been 

12 quarterly inspections (Tr. 385). He couldn't recall definitely if he inspected the tugger at the 277 raise, 3100 level {Tr. 

386, 413). Downs has talked to Joe at his worksite but Joe has 

never expressed any concerns about the tugger (Tr. 387, 388). No 

citation was ever issued regarding the tugger (Tr. 388, 412; Ex. 

C27). Inspector Jim Arnoldi, who accompanied the witness in 

February 1985, never suggested a citation should be issued 

concerning the tugger {Tr. 388). Generally, at a close out 

conference, the parties review the just concluded inspection. At 

this conference, on February 21, 1985 Jim Arnoldi announced that 

he would be the next inspector. Downs denied that. Douchene 

said he wasn't going to have him (Arnoldi) there because he had 

too many relatives and he had a conflict of interest {Tr. 390). 

He'd just write a letter and get rid of him {Tr. 391, 391). As 

they walked out the door Arnoldi said to Douchene that "If you 

was a good manager, you wouldn't have this problem". Douchene 

also stated to both inspectors that "You may be the law but we'll 

see who the law is around here". Downs replied that they were 

102$ ~ 
"both the law" (Tr. 390, 414). There could have been some 

profanity but that is quite common at a close-out conference (Tr. 

392) • 

Downs did not consider the statements made by either man at 

the close-out conference to be threats (Tr. 394). Jim Arnoldi 

never took it as a threat (Tr. 394). 

Hecla Mining Company had at one time written to Downs' 

subdistrict manager complaining he was "coming down too hard" 

(Tr. 393, 394, 440) • 

. Downs denies ridiculing 4im Arnoldi In front of ASARCO 

employees; nor had he ever done anything to hurt his feelings 

(Tr. 394, 395}. 

In the inspector's opinion it is not a safe practice for a 

nipper to be asleep on the job (Tr. 96). Inspector Downs 

observed Joe Arnoldi on one occasion when he thought he was 

asleep (Tr. 396, 397>. He never reported this incident to his 

supervisors, or anyone, nor did he enter it in his notes. 

Don Myers, another MSHA inspector, told Downs that he had 

observed Joe sleeping during working hours (Tr. 397, 432, 433}. 

He learned this before Joe was fired (Tr. 398). 

In cross examination, Downs agreed he had refused to answer 

interrogatories filed by compl'ainant in the case (Tr. 399). But 

complainant's counsel never sought to talk to him (Tr. 437). The 

Solicitor advised Downs that he could talk to ASARCO's attorney 

and testify as to any factual matters (Tr. 400, 432; Ex. C25). 

Downs considered Andre Douchene a business type friend 

rather than a personal friend (Tr. 434). Around May 1985 Downs 

gave a written statement to MSHA's special investigator Lopez 

(Tr. 405). 

In February 1985 Downs was the lead inspector at the ASARCO 

mine. The second inspector, as compared with the lead inspector, 

could write a citation if he saw a violative condition. Downs 

could not recall inspecting a mine with Jim Arnoldi before 

February 1985 · (Tr. 410). At that inspection the two inspectors 

were together for only one week of the 12 week inspection (Tr. 

412). 

Andre Douchene may have turned red and gotten angry with Jim 

Arnoldi when he said the citation was deserved (Tr. 418). Downs 

didn't put Douchene's statements in his official report. He 

didn't think either party meant them (Tr. 418). 

Downs didn't know if Douchene ever wrote a letter about Jim 

Arnoldi. Downs believed that mine managers can influence the 

assignment of mine inspectors (Tr. 420). Downs has no family 

working at the Coeur unit (Tr. 421). 

1029 
Jim Arnoldi told Downs that Joe had been fired (Tr. 422). 

He didn't suggest at that time that Douchene was carrying out his 

threats ·although it occurred 26 days later (Tr. 422}. 

In March 1985 the MSHA hoist inspection team consisted of 

Jim Arnoldi, Moose Guttramsen and Arnold Peterson (Tr. 423, 424). 

Downs was aware that Jim Arnoldi called Andre Douchene to 

schedule a hoi~t inspection on March 19, 1985 (Tr. 425, 462). 

Downs was also aware that Joe got a phone call to come up to the 

mine (Tr. 426). 

Witness Downs didn't believe that MSHA's manual suggested 

that it would be a conflict of interest to inspect a mine where 

an inspector's relatives worked. Nor was there a conflict to 

inspect a mine owned by a company by whom the inspector had been 

formerly employed (Tr. 430). 

The Coeur unit has had two fatalities: one occurred when the 

mine was under construction (Tr. 439). The witness discussed the 

unit in relation to the'national average (Tr. 439, 440). 

MIKE LEE, 30 years of age and experienced in mining, served 

as ASARCO's mine superintendent (Tr. 442, 443, 499, 500). His 

duties include safety and production (Tr. 444). He usually 

averages five hours underground each day. There are approximately 150 employees at the Coeur unit (Tr. 445). The mine has 

17 stopes plus three development crews and 40 contract miners. 

When Lee came to the Coeur mine Joe Arnoldi was swamping, 

motoring and nipping. Occasionally he did some fill-in mining. 

Lee would see Joe about once a week when inspecting the work 

areas (Tr. 446). A nipper would probably run the tugger all day 

long (Tr. 448). If the nipper is sleeping the stope miners are 

not getting the service they need (Tr. 448, 449). 

Employees at ASARCO receive warning slips for absenteeism, 

breaking safety rules underground, and unsatisfactory work (Tr. 

449). The first such warning is usually verbal; warning slips 

follow. Whether a worker is terminated depends on his offense 

(Tr. 450). 

Lee has personally disciplined Joe with warnings and notices 

about his job performance (Tr. 451). 

On August 16, 1984 Joe was given a warning slip and two days 

off for excessive absenteeism (Tr. 451, Ex. F, G, H). He was 

warned to straighten up his absenteeism problem (Tr. 452). Joe's 

work performance was "pretty poor" (Tr. 453, 454). Fellow 

employees also complained and stated they didn't want to work 

with him. 

Joe did not bring his allergy condition to Lee's attention 

(Tr. 454). Company policy requires a worker to report that he 

will be off prior to the start of any shift. When returning he 

1030 
should have a doctor's release (Tr. 454, 455). Lee doesn't look 

through employees' medical records (Tr. 456). The absenteeism 

policy is posted as well as discussed with the employees (Tr. 

456). If the worker misses two shifts within 30 days he would 

receive a warning notice (Tr. 457). 

On March 18, 1985, in the course of their regular inspection, Lee and Bill Arthur went to the top of the 277 raise on 

the 3100 level (Tr. 458, 459). Lee was in the lead and he had to 

walk around a motor parked on the station side. As he moved past 

the drift post he observed Joe Arnoldi leaning back on holey 

boards stalked in the form of a chair. His closed eyes, deep 

breathing, open mouth and perfectly still position caused Lee to 

conclude that Joe was sleeping. Lee went within a couple of feet 

and he woke him up by flashing his light in his eyes. Joe sat 

up with a start (Tr. 459, 460, 501, 502). Lee said something 

like "It's a long time from lunch time to be sleeping." Joe replied "Yeah, I know that" CTr. 460). Lee then told Joe not to do 

anything while he checked the crew below. He would then return 

to talk. Lee didn't tell the miners about Joe because he didn't 

think it was their concern. At the time they were pulling a sand 

line and that didn't require any materials (Tr. 462). 

When they climbed back out Lee told Arthur he had caught Joe 

sleeping. He asked Arthur if he was justified in "taking him 

out. 11 Arthur concurred; Joe would not necessarily be fired but 

he could be in very serious trouble (Tr. 463, 464). As Lee and 

Joe discussed the matter Joe acknowledged that he wasn't supposed 

to be sleeping. Further, he had been caught sleeping before. 

Lee then told Joe he had no choice-· except to take him out of the 

mine. 

Lee then escorted Joe to his office (Tr. 464, 465, 467). 

Lee had Joe sit in his off ice while he talked to Andre Douchene 

(Tr. 465). Lee and Douchene discussed Joe's work record, 

discipline, efforts at rehabilitation, etc. Lee strongly 

recommended that Joe be terminated. Douchene disagreed; he 

thought it best to put him on indefinite suspension and,mull it 

over to make sure they were making the right decision (Tr. 465). 

Lee then told Joe he was suspended. He was also told he may or 

may not get his job back. Lee also indicated he'd contact him so 

he wouldn't have to come to the mine every day. Joe said to 

contact him through his father (Tr. 466-467). 

Lee's notes reflect that he didn't care if Joe slept on his 

lunch break Cll:OO a.m. to·ll:30 a.m.) but he. was sleeping at 

7: 45 a .m. (Tr. 466, 467). A lot of miners had complained that 

Joe was always sleeping (Tr. 557, 558). 

At the end of the shift Lee and Douchene again discussed the 

situation and decided they'd sleep on it (Tr. 468, 470). 

1031 
On October 14, 1983 Ron Maehl was the Coeur mine superintendent. His diary on that date reflects that Joe was suspended 

five days for sleeping underground <Tr. 468, 469, 582, 583; Ex. 

I). The diary also indicated that on August 11, 1983 Joe was 

advised that all of his grace periods were over (Tr. 469, 470; 

Ex. J) • 

The following day, March 19 at mid-morning, Lee and Douchene 

discussed Joe's past record and related matters. Douchene 

decided he should be terminated (Tr. 470, 471). The decision to 

fire him had nothing to do with the fact that his father was an 

MSHA inspector (Tr. 472). 

Lee was not aware of Joe's contention that some of the 

warning slips he had received were not deserved (Tr. 471). On 

Tuesday afternoon Lee contacted Inspector Arnoldi and asked him 

to have Joe come into the office. Inspector Arnoldi replied "I'm 

going to inspect your XXXX hoist today" (Tr. 472). The inspection did not come about. Joe appeared at the mine on the 

morning of the 20th (Tr. 473). At that time Lee and Joe reviewed 

the situation. Lee then advised him he was terminated immediately. At the conference Joe did not claim any of the work notices 

were not justified. Three or four times after that he came up 

rustling (Tr. 474). Several times he talked to Lee and other 

times with Douchene (Tr. 475). Lee filled out a termination 

statement for Joe writing on it "absolutely no rebire" (Tr. 476; 

Ex. C24J. The notation was Lee's personal feelings because Joe 

was such a poor worker. Lee didn't tell Joe to rustle but what 

he wrote is not inconsistent with a suggestion to rustle because 

they are obliged to state that the same opportunities exist for 

everyone (Tr. 477). Lee has made similar notations on five to 

ten termination notices (Tr. 477). The company has not rehired 

anyone when such a notation was made. 

Lee knew the company contested Joe's claim for unemployment 

compensation benefits filed with the State of Idaho (Tr. 478). 

Lee didn't think the company would rehire Joe in view of that 

claim (Tr. 479). 

With his memory refreshed by hearing prior witnesses Lee 

restated the events at the close-out conference of February 21st 

(Tr. 479, 480, 491, 492-494, 498). [The witness, in his deposition, stated he did not remember the details at the conference 

(Tr. 491-496)]. However, he testified that at the conference 

Inspector Arnoldi said he was going to inspect the plant and shut 

it down. Douchene said Arnoldi had too much family working there. 

Lee consiqered this a typical close-out conference. He thought 

the statements were made in jest; neither man was threatening the 

other (Tr. 482). 

The inspection in February 1985 and the close-out conference 

of February 21 were not factors in the decision to terminate Joe 

Arnoldi (Tr. 482). 

1032 
Lee had never discussed with Joe the height of the tugger or 

its proximately to the tracks. He could not remember Joe making 

any complaint at the safety meetings (Tr. 483). 

It is unsafe for a nipper to sleep on the job (Tr. 484, 

485). 

At ASARCO the shift boss has authority to give a worker two 

days off (Tr. 486). Any leave in excess of two days had to be 

approved by Lee or Douchene (Tr. 486). 

Joe would not necessariiy be advised when the trains were to 

operate past his work station (Tr~ 504). 

The Coeur policy guide states the company absenteeism policy 

(Tr. 508; Ex. C29). The policy requires that an absence be excused (Tr. 509-513). 

Lee's diary entry of December 13, 1984 reflects an incident 

involving safety. The .individuals involved were Arthur Lee and 

Buss Lomas (Tr. 523, 524; Ex. C30). 

In the absence of Douchene, Lee could probably fire someone 

at the mine. If Douchene was gone he would check with Fred 

Owsley (Tr. 536). 

On March 22, 1985 Lee wrote a draft of ASARCO's response to 

Joe's application for unemployment benefits (Tr. 538, 539; Ex. 

C32). The report states that Bill Arthur as well as Lee observed 

Joe sleeping at the top of the 277 raise (Tr. 539). Apparently 

Arthur had not observed Joe sleeping (Tr. 540). Lee had not 

checked the records of other employees to see how previous 

sleeping incidents had been handled (Tr. 541}. 

On October 9, 1983 Coeur employee Paul Stull was given a 

warning slip for sleeping (Tr. 541; Ex. C33). R.J. Maehl was the 

superintendent at that time (Tr. 542). The slip said he had 

already been warned once (Tr. 543; Ex. C34). Stull had been 

warned verbally by Maehl, Douchene, Korst (general mine foreman) 

and Charlie Castell (shift boss) on separate occasions previously 

(Tr. 543, 544). It was explained to Stull that the next warning 

would mean termination (Tr. 544). 

Lee carefully tracks absenteeism at the Coeur unit (Tr. 545). 

Stull worked 21 weeks at the mine but his record does not 

indicate any disciplinary action (Tr. 547>. In 21 weeks the area 

supervisors found it necessary to warn Stull about sleeping four 

times and Ron Maehl caught him sleeping a fifth time (Tr. 547}. 

The termination slip for Stull says Maehl would want him 

re-employed. The reason he left was to attend school (Tr. 548); 

Ex. C36>. Ron Maehl may have just suspected Stull was sleeping 

(Tr. 549). It is not fair to compare Paul Stull's record with 

Joe Arnoldi's record. Arnoldi's record is worse (Tr. 587). 

Joe was given a warning slip on April 18, 1983 for failing 

to follow orders and unsatisfactory work (Tr. 551). This was 

1033 
given to Joe for his failure to follow an order to work in an 

unsafe'place (Tr. 551). An additional warning slip was issued 

for carryin·g explosives on top of a battery locomotive CTr. 551). 

The hauling of a chain saw and motor was also a safety rule 

violation (Tr. 552). 

Joe was issued only one unsatisfactory work and failure to 

follow orders during this time at the Coeur. However, Lee had 

general knowledge that Joe was not a good worker CTr •. 552, 553) • 

Joe Arnoldi was treated differently than other employees because 

he was given a second chance (Tr. 587). 

Corey Weikel has not been fired by ASARCO although he had a 

number of warning slips from January 1983 to the end of March 

1985 (Tr. 558, 559). On August 11, 1983 Corey, who eventually 

turned into a good hand, was suspended for five days. He was 

also told that if he abused the company policy he would be 

terminated (Tr. 559, 590, 571). Two weeks later he was back on 

the job. Maehl again talked to him about his overall work 

attitude, attendance record and other matters. 

Corey received a warning slip and two days off on June 22, 

1983 for absenteeism (Tr. 5611 Ex. C38). 

On August 11, 1983 Corey received a warning slip for tearing 

out an air door (Tr. 589, 652). 

It is not valid to compare Corey's work record with Joe 

Arnoldi's record. Corey was a good hard worker CTr. 589>. 

On June 22, 1983 Ron Maehl's diary reflects he came on Randy 

Arthur on a bedboard and in a bewildered state. When asked what 

he was doing he replied he was "just sitting": Maehl said Randy 

Arthur had no "gippo" attitude, suggesting that he lacked get up 

and go (Tr. 563, 564). The diary entry further states that he 

cannot or will not work unless prompted (Tr. 564). 

On August 10, 1983 Randy Arthur received a warning slip for 

failing to follow orders (Tr. 564). 

On December 23, 1983 another warning slip was issued to 

Randy Arthur for riding a timber truck (Tr. 564, 565). Arthur 

was not terminated (Tr. 565). At one point Ron Maehl removed 

Arthur from his contract job. This move would reduce his wages 

from $150 to $250 a day to $95 to $100 a day. Somewhere in 1984 

he bid back into the stope job (Tr. 566). If Lee had caught 

Randy· Arthur sleeping, coupled with everything else, he would 

have fired him (Tr. 566). Arthur had a serious diabetic problem 

(Tr. 567). It is not valid to compare Joe Arnoldi's record to 

Randy Arthur (Tr. 590). 

Tom Benson received a warning slip for being absent on July 

22, 1983. On August 31, 1983, Maehl's diary states that Benson 

had a "sluggish attitude" at work. On October 31, 1983 Maehl 

1034 
told Benson he would be fired if his work performance didn't 

improve (Tr •. 568). On November 22, 1983 Lee issued a verbal 

warning to Benson for tardiness (Tr. 568, 569). A discussion 

about tardiness followed on December 27, 1983 because Benson's 

conduct of arriving "at the whistle" was barely acceptable. On 

February 8, 1984 Lee gave him an unexcused absence. He had not 

called in (Tr. 569). On September 26, 1984 Benson was promoted 

to stope miner (Tr. 569, 570). Benson eventually became a pretty 

good worker (Tr. 570, 590). 

Ron Maehl threatened employees a lot (Tr. 570). In Lee's 

view sleeping is a complete and blatant disregard of the employer. 

It further shows a total lack of responsibility on the part of 

the employee (Tr. 571). 

When Ron Maehl caught an employee sleeping he would sign off 

on a termination slip indicating that the man could be a rehired 

(Tr. 573). 

James Leischner received four warning slips in one year. On 

January 19, 1983 he also received a two day suspension for 

absenteeism. On March 21, 1983 a warning slip was issued for 

leaving powder and primers in a raise. On July 14, 1983 he 

received a warning slip for hauling explosives on a motor (Tr. 

574). Following this, on December 30, 1983 there was a warning 

slip for hoisting powder and primers (Tr. 574, 575). Leischner 

is still working there. The company does not have a set policy 

that a certain number of warning··slips mandates termination (Tr. 

575) • 

Lee's diary of May 30, 1985 mentions Joy Neal and L. Lyle 

(Tr. 576). Lee had observed Joy sitting on the station smoking a 

cigarette. She.was told she was paid to work, not sit (Tr. 576). 

She later quit working at the mine (Tr. 577). 

For the period Commission Judge Kennedy ruled as relevant 

(January 1, 1983 to March 31, 1985) ASARCO issued 94 warning 

slips (Tr. 578). During the same period Delmar Howard, Larry 

Nellsch, Earl Crabtree and Bob Elisoff, were fired by ASARCO. 

Elisoff was later rehired .(Tr. 578, 579 > • 

Delmar Howard and Larry Nellsch were in jail and unavailable 

for work (Tr. 580; Ex. P,Q). Both of these men received fewer 

warning notices than Arnoldi. Both were terminated for 

absenteeism. Lee would rehire them (Tr. 59.3-596 > • The witness 

discusseed Larry Nellsch's warning slips (Tr. 594, 595). 

Earl Crabtree was fired for absenteeism. Bob Elisoff was 

fired for various reasons (Tr. 580). Elisoff rustled for a long 

period of time and was rehired (Tr. 581). 

Exhibit C-38 is a fair representation of the warning slips 

that are generally issued for the reasons stated (Tr. 582). 

1035 
It is important, for various reasons, for the company to 

know ahead of time whether a worker·will be absent from work (Tr.· 

583). 

Occasionally a warning slip is not signed by the issuing 

super.visor; nor is it n·ecessary for the employee to sign the slip 

(Tr. 583, 584). 

In 1981, at the Galena mine, Lee fired Jim Reed for 

sleeping; in addition, he fired two workers in July 1986 for the 

same offense. None of the three workers had prior warning 

notices (Tr. 587). 

Even though an "absolutely no rehire" notation is written on 

a termination slip a man can be rehired if he can show the 

company that he has changed (Tr. 591). 

Workers were hired at the Coeur unit after Joe Arnoldi was 

terminated (Tr. 599). 

ANDRE DOUCHENE is currently employed by Round Mountain Gold 

Corporation. Previously he worked for ASARCO starting as an 

engineer and attaining the position of manager of the Coeur unit 

(Tr. 602}. As the unit manager he is responsible for the entire 

mine. He reported to Fred Owsley, general manager for the 

division (Tr. 603). Douchene has the final authority in hiring 

and fi~ing employees CTr. 603, 604). He did not normally become 

involved in disciplining unless an employee claimed he was 

treated unfairly (Tr. 604). 

Joe Arnoldi was employed at the Coeur before Douchene 

arrived. At some point Douchene learned that Joe's father was an 

MSHA inspector (Tr. 604, 605). Inspector Arnoldi abated some 

citations but he was prinicipally the hoist inspector until 

February 1985. At that time he became as part of the inspection 

team CTr. 605). 

Inspector Arnoldi had not written a citation while Douchene 

was at the Coeur. MSHA inspected the mine on a quarterly basis. 

Douchene would see Joe about three days out of each week. Joe's 

duties as a nipper included supplying the miners in the stope 

with materials. Nippers are there for efficiency as well as 

safety (Tr. 606, 607, 642). Joe and Douchene never discussed the 

tugger nor did Joe make any safety complaints about the tugger. 

Other workers also operated the tugger at the 277 raise, 3100 

level (Tr. 607, 609). However, Joe did complain and he was upset 

about an incident when he was hit on the wrist when a rock came 

down the raise. The incident was brought up at a safety meeting 

and workers were warned about letting material fall down the 

shaft CTr. 608). Douchene attends about half of the six separate 

monthly safety meetings. Except for the one instance at no time 

did he hear Joe express any safety concerns CTr. 609). Joe was 

not a member of the safety committee. 

1036 
Douchene was the elected miners' representative at the Coeur 

unit. He was concerned this could be a conflict of interest but 

no conflict ever arose. If a conflici had occurred Douchene 

would have stepped down as the miners' representative (Tr. 610, 

641, 642). The miners could always vote him out of the position 

(Tr. 611). He was never really comfortable with such an 

appearance of impropriety (Tr. 652, 656). On one occasion as the 

miner's representative Douchene signed a variance document 

concerning a manway opening and raise (Tr. 652, 653). 

Douchene recalled that Lee came into the off ice and said 

he'd caught Joe .sleeping underground (Tr. 611). This was within 

an hour after the crew had go~e underground (Tr. 612). Douchene 

didn't talk to Joe that morning <in his deposition he stated 

otherwise). 

Lee and Douchene discussed Joe's past record for a minute or 

two (Tr. 612, 668). Both men knew Joe had received a lot of 

warning slips and had been disciplined for sleeping. Joe was 

then suspended without pay pending further investigation. Lee 

and Douchene discussed Joe later that day, after Douchene had 

obtained his file folder· CTr. 613, 673, 674). No decision was 

made at that time. The following day Lee and Douchene went over 

Joe's record. They decided they had done all they could to try 

to get Joe to become a good employee. He was discharged (Tr. 

615). Specifically they considered the fact that he'd been 

caught sleeping twice, his past record, and his absenteeism. Apparently their talks had not "~unk in" (Tr. 615). 

Concerning the first sleeping incident Ron Maehl ha~ warited 

to discharge Joe but Douchene refused because he hadn't brought 

Joe out from underground. Ron gave him five days off. Later 

that week Joe returned and stated he'd learned his lesson. He 

also objected to the way they woke him up. Apparently Ron had 

pitched a small pebble at his chest. Douchene agreed the five 

day suspension was too severe so he let him come back the following day. But the three days of discipline stood (Tr. 616). 

About four or five days after he was fired in March 1985 Joe 

came back a.nd said he thought he'd learned his lesson. Douchene 

disagreed. He further denied that' they had blackballed him (Tr. 

617, 618). Joe asked if he could rustle and Douchene replied 

affirmatively. There were three or four meetings. Joe would ask 

if a job was available and Douchene would state there was none. 

If Joe had convinced Douchene that he had in fact changed then he 

would have rehired him despite the "no rehire" notation on the 

termination notice (Tr. 618, 619). There was no further 

conversation with Joe aa to why he was terminated (Tr. 619). 

Joe never advised Douchene that his prior warning notices 

were not justified (Tr. 619). 

Douchene participated in the close-out conference in 

February 1985 but not the inspection. Three citations were dis1037 
cussed at the conference. One loose ground citation was designed 

as s & ·s (Tr. 620). The citation involved Magoon and Myles (Tr. 

621). The .previous day Douchene had observed the slab and he 

told the two men to bar it down. When the citation followed 

Douchene called the men into Lee's office and asked them if they 

knew the nature of insubordination. Discussion followed and 

Myles explained that Bill Arthur had told them that it wasn't 

necessary to further bar down the slab (Tr. 621). Subsequently, 

Douchene told Arthur that he (Arthur) was wrong about. the slab. 

Douchene frequently argued about citations at the close-out 

conferences (T~. 622). After the February 1985 conference was 

over Douchene asked Downs who was to be the new inspector. Jim 

Arnoldi said he was to be the new inspector. Douchene didn't 

take him seriously. Douchene replied, with profanity, that he 

had a lot of family up there and would be a conflict of interest 

for him to be there (Tr. 623, 624). It's possible Douchene could 

have said something like "You may be the law, but we'll see who 

the law is around here~ (Tr. 659). Douchene mentioned writing a 

letter. If Arnoldi had become inspector he would have talked to 

Larry Weberg (Arnoldi's supervisor) about it (Tr. 624, 659). He 

didn't remember the exact sentence but he agreed the gist was 

"You've got too much family working here to XXXX around too much" 

(Tro 659, 660). By writing a letter Douchene meant that the 

company could file an official complaint. He did not then intend 

to do that. 

As they were going out the door Inspector Arnoldi made a 

statement about poor management and the company wouldn't have to 

worry about safety inspectors if it had better management. 

Douchene did not take anything Arnoldi said as a threat (Tr. 

625). 

Douchene was probably grinning when he made the statements. 

Jim Arnoldi was also grinning; this was his typical badgering and 

the give and take at a close-out conference (Tr. 627). 

Inspector Arnoldi has eight to ten relatives at the Coeur, 

about ten percent o~ the work force (Tr. 626). None of the 

Arnoldi relatives at the Coeur unit are on the management level 

(Tr. 709). 

When the decision to terminate Joe was made a month later, 

the close-out conference was not a factor. Douchene and Lee, in 

deciding to terminate Joe, did not discuss the fact that his 

father was an MSHA inspector (Tr. 627). 

On March 19, 1985, Inspector Arnoldi was the only MSHA hoist 

inspector. On that day he told Douchene that he was coming to 

inspect the hoist and "straighten him out". The decision had 

already been made to terminate Joe but his father was not told 

about it (Tr. 628, 667). In deciding to terminate Joe, Douchene 

did not look at anyone else's record and such a comparison would 

not be valid (Tr. 629). Joe was the only one caught sleeping 

twice. Douchene and Lee had talked to Joe and tried to get him 

to become a good employee (Tr. 630). 

1038 
Paul Stull was a temporary employee hired by Fred Owsley 

(Tr. 631). Douchene didn't catch him sleeping nor did he 

specifically warn him about sleeping (Tr. 632, 633; Ex. C34}. 

It is not valid to compare Joe Arnoldi with Paul Stull 

because Joe was a permanent employee. Stull didn't make a bed, 

lay down and go to sleep (Tr. 633). 

Exhibit C3 sets forth MSHA's conflict of interest standards. 

In Douchene's opinion there was a conflict of interest because of 

Inspector Jim Arnoldi's family at the mine (Tr. 634, 639, 644). 

He could be influenced in either direction, either too harsh or 

overlooking matters. Joe Arnoldi was hired by Carole Ward at his 

father's request (Tr. 635, 644, 645, 648}. Jim Arnoldi came to 

the Coeur unit quite a bit unofficially. At times he asked about 

Joe and inquired why he hadn't been put to mining (Tr. 635). 

Douchene indicated Joe didn't have a good enough work record (Tr. 

635, 636}. 

Douchene was familar with the contest procedures. A lot of 

Inspector Downs' citations were justified (Tr. 643). 

About two weeks after the February 1985 inspection Larry 

Weberg, Jim Arnoldi's supervisor, came to the Coeur. When asked 

if he had a problem-with Jim Arnoldi inspecting the mine Douchene 

indicated he had a lot of family there (Tr. 650, 657). Douchene 

did not write a letter to MSH.A (Tr. 658). 

In 1984 the Coeur unit reached a high of 11 citations (Tr. 

664} • 

Douchene has never fired anyone "on the spot" without due 

consideration (Tr. 678). 

When he spoke to Inspector Arnoldi on March 19 he did not 

mention that they were considering terminating Joe (Tr. 678, 

679). 

"The decision to terminate Joe was made before Inspector 

Arnoldi called to schedule the hoist inspection (Tr. 679). The 

decision had been made the morning of the 19th and the paper 

work was already in process (Tr. 680}. It is not company policy 

to notify relatives of an employee's position with the company 

(Tr. 680). 

There were four additional hourly employees terminated 

between January 1, 1983 and March 31, 1985 (Tr. 683, 684). Larry 

Nellsch and Delmar Howard were terminated because they were 

absent from work (Tr. 684). Bob Elisoff and Earl Crabtree were 

terminated for excessive absenteeism (Tr. 685; Ex. C42}. During 

the relevant period no employee was fired except for absenteeism. 

Each individual is handled as an individual (Tr. 686). Crabtree 

started with ASARCO in 1967. He was fired. He was again 

employed at the Galena mine from April 23, 1969 to August 21, 

1039 
1973 (Tr. 6&9, 690). He was again fired. Subsequently, he was 

hired at the Coeur on August 7, 1984 and fired in October 1984. 

Crabtree received ten slips for absenteeism (Tr. 690). Joe 

Arnoldi did not have as many slips for absences as did Crabtree 

(Tr. 691). The company has a printed policy concerning absences 

(Tr. 692; Ex. C29). Crabtree was discharged for four unexcused 

absences in a 60 day period (Tr. 694). The last sleeping 

incident involving Joe Arnoldi was "the straw that broke the 

camel's back" so far as Joe's discharge was concerned (Tr. 695). 

Elisoff was fired on April 7, 1983 by Ron Maehl and Buss 

Lomas (Tr. 697). He was rehired when he convinced Douchene that 

he had changed. He rustled every day for maybe two months (Tr. 

698, 699). After he was rehired Elisoff received some warning 

slips, including one for unsatisfactory work and one for 

excessive absenteeism (Tr. 702, 703). 

Elisoff is still working at the Coeur (Tr. 703). 

The decision to terminate Joe was based on his work record 

and the whole business (Tr. 704). During the relevant period 22 

employees other than Joe received warning slips for unsatisfactory work, failure to follow orders, and non-safety related 

conduct. The 22 remain employed by ASARCO (Tr. 704). Paul 

Stull, the other employee allegedly caught sleeping, did not 

receive disciplinary days off and was not terminated (Tr. 705). 

Douchene wasn't sure if Stull was sleeping or not but he warned 

him for sitting down on the job (Tr. 705). 

The disciplinary system at Coeur includes verbal and written 

warnings (Tr. 706). The lowest level is a verbal warning and the 

highest level is termination (Tr. 707). Douchene didn't know if 

Joe rustled every day (Tr. 700). After March 20, 1985 Joe told 

Douchene that he wanted his job back (Tr. 701). Douchene was 

never convinced that Joe was serious about getting his job back 

(Tr. 702). 

Evaluation of the Evidence 

In view of the Commission's rulings concerning section 

105(c) it is necessary to initially determine whether complainant 

was engaged in a protected activity and whether respondent took 

adverse action against him for such activity. 

It is clear that certain activities in which complainant 

engaged were protected under the Act. He complained about the 

positioning of the tugger and its proximity to the train track. 

However, there is no evidence that responden~ took any adverse 

action for such complaints. MSHA Inspector Jim Arnoldi never 

inspected the tugger. He merely told Joe to discuss it with Bill 

Arthur. In turn, Arthur did not think it was a problem. MSHA 

Inspector Downs inspected complainant's work place but no 

complaints were made to him about the tugger. 

1040 
The complaints about the position of the swamper on the 

train and the trip lights were protected activities but again no 

adverse action was taken by the company. His safety complaints 

when he was struck by rocks falling down the raise were protected. 

But this occurred April 27, 1983, almost two years before he was 

.discharged. ~o adverse action resulted from that incident and, 

in fact, it was discussed at a safety meeting and the miners were 

instructed to avoid such hazards. 

The pivotal issue focuses on whether complainant was 

sleeping on March 18, 1985. A conflict in the evidence exists on 

this point. 

On that particular date Lee and Arthur were on their rounds. 

Lee, who was in the lead, approached complainant and saw him 

leaning on a stack of boards. His eyes were closed and he was 

breathing deeply with his mouth open. He was perfectly still. 

Lee woke him. Complainant did not deny that he was sleeping. In 

fact, complainant himself concedes that he didn't tell Lee or 

Douchene that he wasn't sleeping. 

Subsequently, on March 21, complainant filed for unemployment benefits with the State of Idaho. In his printing on the 

form he related the events of March 18 stating in part that he 

was "waiting fore (sic) my crew to start work I fell asleep olny 

(sic) for five min (sic) and ••• Mike Lee woke me up" (Exhibit 

RA). 

At the hearing complainant seeks to explain the State of 

Idaho statement. He states he couldn't write well. He wanted to 

state on the form that he was not sleeping. He also wanted t6 

put down that he was discriminated against because of his 

father's MSHA inspections. Instead, he put down respondent's 

~easons why he was fired (Tr. 183, 200-203; Ex. RA). 

Contrary to complainant's assertions I conclude that the 

statements he made to the State of Idaho were accurate and not 

false, as he himself conceded at the hearing (Tr. 231, 233). 

His claim that he lacks writing skills is not persuasive. A 

review of the hand printed exhibit CEx. RA), in my view, 

accurately set forth complainant's position. Although there are 

some spelling errors in the text the expression is clear and 

reasonably articulate. 

Sleeping is not a protected activity; accordingly, it 

follows that respondent did not discriminate against complainant. 

If complainant had established that he was terminated in 

part because of protected activity, I would nevertheless conclude 

that respondent was motivated by complainant's unprotected 

activity and would have taken the adverse action for such unprotected activities alone, i.e., for twice falling asleep on the 

job. Therefore, I conclude that complainant has not established 

that respondent discharged or otherwise discriminated against him 

in violation of section 105(c) of the Act. 

1041 
Arnoldi's post-trial brief asserts that he has established 

his prima facie case. He particularly relies on the fact that a 

miner is entitled to have federal mine inspectors conduct their 

inspection free of any retaliation, citing Mackey v. Consolidation Coal Company, 7 FMSHRC 977, 978 (1985). Specifically 

complainant refers to the close-out conference of February 21, 

1985. At the· conference it is essentially uncontroverted that 

Andre Douchene, the unit manager, made the statements set forth 

in the evidence. However, I find from the credible e.vidence that 

some,profanity as well as "give and take" regularly occurs at the 

close-out conferences at respondent's mine. Further, Douchene 

didn't take Jim Arnoldi's statements as a threat (Tr. 625, 627). 

Inspector Downs did not consider any of the statments to be 

threats (Tr. 394). Inspector Arnoldi's written statement of May 

15th indicates that he also thought Douchene's statements were 

made in jest (Tr. 131, 132; Ex. C4). Mike Lee likewise thought 

the statements were made in jest (Tr. 482). Kim Bradshaw 

likewise concurs in this view (Tr. 254). 

The evaluation made by these four principals contemporaneously with the event constitutes persuasive evidence that 

respondent did not intend to discriminate against complainant. 

Complainant further argues that the evidence supports an 

inference that he was fired in retaliation for safety complaints 

or based on the belief that he was an MSHA informant. 

I disagree. such a view of the evidence is speculative. 

Even assuming that complainant was an informant there is no 

evidence that respondent took any adverse action for such 

activity. 

Complainant also argues that Douchene felt MSHA Inspector 

Arnoldi should not be assigned to the Coeur unit because of the 

number of relatives at the mine; further, it is plausible to 

believe that Douchene feared the quality of information that 

could flow from relatives to an MSHA inspector. 

I reject this argument. Plausibility cannot establish a 

violation of the discrimination section. I agree that Commission 

precedent holds that adverse action against a miner making safety 

complaints to MSHA violates the Act. This is so even though 

management is wrong in its belief that the miner made such 

complaints as in Moses v. Whitley Development Company, 4 FMSHRC 

1475 (1982). In the instant case it is true that complainant 

claims to have been an MSHA informant. 

This view arises from the incident when Joe Arnoldi spoke to 

his father about the two miners, Magoon and Myles. The two 

miners had been threatened with termination for failing to bar 

down a loose slab. 

I do not see how this incident establishes discrimination, 

or an intent to discriminate, against Joe Arnoldi. Even if one 

1042 
assumes ASARCO knew of complainant's statement there is no 

persuasive evidence that the company took any adverse action 

against him.· The Magoon/Myles incident started the day before 

the MSHA inspection. On that day Douchene directed the two men 

to bar down a loose slab. They apparently began to do so and 

their supervisor (William Arthur) told them to terminate their 

activity. The following day an MSHA citation was issued for the 

same slab. Douchene then called Magoon and Myles into his off ice. 

He asked them if they knew the nature of insubordination. 

All of these events had occurred before complainant made any 

statments to his father. Complainant relates that "after the 

shift was over I talked to Bob Magoon and Bob told him that they 

were fired and he [Andre Douchene] was mad because he got wrote 

up for something that he thought he shouldn't have gotten wrote 

up for " C Tr • 17 2 ) • 

In sum, the Magoon/Myles incident does not establish that 

respondent discriminated against complainant. 

Complainant further contends that the company admits it was 

motivated to terminate him by virtue of his work record as a 

whole, citing the transcript at 614. Complainant then argues 

that his work record includes a refusal to work in an unsafe 

place. Further, his severe allergy condition rendered it unsafe 

for him to work. 

Complainant has overemphasJzed a portion of the evidence. 

The person who made the ultimate decision to fire complainant was 

Andre Oouchene with Mike Lee's strong recommendation. Douchene 

testified that he and Lee discussed complainant's warning slips 

and they both knew he had been disciplined for sleeping. The 

following day Lee and Douchene went over complainant's record. 

They decided they had done all they could to try to get 

complainant to become a good employee. Specifically, they 

considered his adverse work record which was documented. He'd 

been caught eleeping twice, and he had received nume~ous warning 

slips (Tr. 615). 

Complainant's additional contention is that his allergies 

,caused him to believe, in good faith, that it would.be hazardous 

to his health for him to work in the mine. In support of his 

position complainant Atkins v. Cyprus Mines Corporation, 8 FMSHRC 

460, 474 (1986). 

These arguments are misdirected. As a threshold matter 

complainant did not refuse to work because of his allergy 

problems. The cited case is not controlling. 

Complainant also argues that respondent refused to rehire 

complainant in retaliation for his protected activities and for 

the filing of his discrimination complaint. 

1043 
The evidence shows that Douchene and Lee told complainant 

that he could rustle in an effort· to get his job back. He did so: 

Complainant testified he was treated fairly well, except towards 

the end of the rustling period. 

I reject complainant's argument. He was discharged because 

he was sleeping on the job, an unprotected activity. On this 

record the filing of his discrimination complaint played no part 

in the refusal to rehire him. The reference to the hiring and 

firing of Robert A. Elisoff fails to establish that respondent 

discriminated against complainant. This is so because 

complainant was discharged for an unprotected activity. Respondent is not obliged to rehire him. But it can permit him to 

rustle in an effort to be re-employed. 

Complainant's post-trial brief also attacks the credibility 

of Lee, Downs and Douchene. While there are some discrepancies 

in respondent's evidence (as well as complainant's evidence) I 

generally find respondent's evidence to be credible. 

Complainant argues his overall work record did not merit his 

discharge and he was treated less favorably than others. 

The function of the Commission is to determine whether 

discrimination occurred in violation of section lOSCc). Disparities in discipline can be strong evidence of discriminatory 

motives. But it is not the function of the Commission to generally weigh a miner's work record if no protected activity is 

established. 

For the foregoing reasons the complaint filed herein should 

be dismissed. 

Briefs 

The parties have filed detailed briefs which have been most 

helpful in analyziQg the record and defining the issues. I have 

reviewed and considered these excellent briefs. However, to.the 

extent they are inconsistent with this decision, they are rejected. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

this decision the following conclusions of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. Complainant did not prove that he was discriminated 

against in violation of Section 105(c). 

3. Respondent did not discriminate against complainant in 

violation of the Act. 

1044 
Based on the foregoing findings of fact and conclusions of 

law I enter the following: 

ORDER 

The complaint herein is dismissed. 

Law Judge 

Distribution: 

Nathan S. Bergerbest, Esq., Cotten, Day, Doyle, 1899 L Street, 

NW, Washington, D.C. 20036 (Certified Mail) 

Fred M. Gibler, Esq., Evans, Keane, Koontz, Boyd, Ripley, 111 

Main Street, P.O. Box 659, Kellogg, ID 83837-0659 (Certified 

Mail) 

/bls 

1045 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 

JUN 3 1987 

SECRETARY OF ~ABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 86-260-M 

A.C. No. 04-03008-05511 

v. 

VINNELL MINING AND MINERALS 

CORPORATION, 

Respondent 

. . 

: 

Oro Grande Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Cetti 

Statement of the Case 

This is a civil penalty proceeding filed by the petitioner 

against the respondent pursuant ot Section llOCa) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), seeking 

civil penalty assessments in the amount of $241 for four alleged 

violations of certain mandatory safety standards found in Title 

30, Code of Federal Regulations. 

The parties have submitted a motion pursuant to Commission 

Rule 30, 29 C.F.R. § 2700.30, seeking approval of a settlement of 

the case. The citations, initial assessments; and the proposed 

settlement amounts are as follows: 

Citation No. 

2364566 

2364567 

2671590 

2671591 

Date 

12/11/84 

12/ll/84 

7/2/86 

7/2/86 

CFR Title 30 

Section 

56. 5001A/5 

56. 5001A/5 

56.14001 

56.11001 

Totals 

Discussion 

Assessment 

$ 20.00 

105.00 

58.00 

58.00 

$241.00 

Settlement 

$ 20.00 

105.00 

30.00 

20.00 

$175.00 

In support of the proposed settlement disposition of this 

case, the petitioner has submitted information pertaining to the 

six statutory civil penalty criteria found in Section llOCi) of 

the Act. In addition, the petitioner has submitted a discussion 

and disclosure as to the facts and circumstances surrounding the 

issuance of the citations in question, and a reasonable justif ication for the reduction of two of the original proposed civil 

penalty assessments. 

1046 
Conclusion 

After.careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of this case, I conclude and find that 

the proposed settlement disposition is reasonable, appropriate, 

and in the public interest. Accordingly, pursuant to 29 C.F.R. 

§ 2700.30, the motion is GRANTED, and the settlement IS ~PPROVED. 

ORDER 

Respondent IS ORDERED to pay civil penalties in the 

settlement amounts shown above totaling $175.00 in satisfaction 

of the citations in question within thirty (30) days of the date 

of this decision and order, and upon receipt of payment by the 

petitioner, this proceeding is dismissed. 

strative 

F. Cetti ~~ Law Judge 

Distribution: 

Leroy Smith, Esq., Office of the Solicitor, U.S. Department of 

Labor, 3247 Federal Building, 300 N. Los Angeles Street, Los 

~ngeles, CA 90012 (Certified Mail) 

Mr. D. McRae, Vinnell Mining & Minerals Corporation, 3380 Flair 

Drive, Suite 236, El Monte, CA 91731 (Certified Mail) 

/bls 

1047 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

JUN 5 1987 

. . 

. . 

. . 

. . 

. . 

. . 

. 

. 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 86-101 

A.C. No. 15-02705-03587 

Camp No. 2 Mine 

DECISION 

Appearances: Thomas A. Grooms, Esq., Office of the 

Solicitor, U.S. Department of Labor, Nashville, 

TN, for Petitioner; 

Michael O. McKown, Esq., Henderson, KY, for the 

Respondent. 

Before: Judge Fauver 

This proceeding was brought by the Secretary of Labor 

for civil penalties for alleged violations of safety 

standards under the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801, et~ 

Based on the hearing evidence and the record as a whole, 

I find that a preponderance of the reliable, probative, and 

substantial evidence establishes the following: 

FINDINGS OF FACT 

1. Peabody Coal Company is a large operator of coal 

mines producing coal for use or sale in interstate commerce. 

2. The penalties proposed by the Secretary of Labor 

would not affect tbe ability of the operator to continue in 

business. 

3. Camp No. 2 Mine is opened into the Kentucky No. 9 

coal seam by one slope and six shafts. The coal seam is 

about 62 inches thick. 

4. On October 10, 1985, about 7:30 p.m., a methane 

explosion occurred in Camp No. 2 Mine, in the No. 1 unit, 

section 013. The explosion was in the No. 3 entry working 

place where a loading machine and shuttle car were operating. 

The shuttle car had just entered the working place and was 

1048 
being loaded when its trailing cable arced as it came through 

the sheave bracket, igniting methane. The explosive fire 

ball expanded into the first outby intersection then traveled 

back into the working place and once again went out into the 

intersection and was self-extinguishing. The explosion · 

caused serious burn injuries to the loading machine operator 

and the shuttle car operator. 

5. The MSHA accident investigation team began their 

investigation at the mine about 11:00 p.m., October 10, 1985. 

They gathered a number of eyewitness accounts, which may be 

summarized as follows: 

(a) George Wallace, the loading machine 

operator, stated that he was in the process 

of loading a three-way place, and 

had just completed loading the fall of coal 

from the crosscut right of the No. 3 entry 

when the methane monitor deenergized the 

machine. The line brattice was extended 

to within approximately 10 feet of the face, 

and the power was restored to the loader. 

Wallace then began to position the machine in 

preparation to load the fall of coal at the 

face of the No. 3 entry when the explosion 

occurred. 

{b) Harry D. Cowan, the shuttle car driver, 

sta~ed that he had entered the working place 

and was in the process of being loaded when his 

trailing cable arced to the frame as the cable 

came through the sheave bracket. The methane 

fire ball traveled into the intersection of the 

last open crosscut, then back to the face of the 

No. 3 entry, and once again out into the 

intersection and was self-extinguishing. 

(c) Jim Ashby, shot fireman, was in the crosscut 

between No. 2 and No. 3 entries, and Donald 

Strouse, a unit helper, had just walKed up to the 

outby side of the intersection. They saw the cable 

arc and ignite the methane. Ashby stated that as 

the flame came into the intersection the second 

time, he ran to the unit power center shouting to 

have "someone knock the power." 

1049 
6. Wallace sustained burns to his arms, back, face, 

and hands; Cowan sustained burns to his hands, left arm, and 

face. Coworkers administered first aid and the injured 

miners were. transported to the surface and taken by ambulance 

from the mine to the valley View Medical Center, Union 

County, Kentucky. 

7. The No. 1 unit is a conventional mining unit. 

After blasting, coal is loaded into shuttle cars that dump 

onto a series of belt conveyors. The mine is developed by 

the room and pillar system of mining. Pillars are not 

extracted. 

9. In the accident investigation, MSHA Inspector Louis 

Stanley found that the area was not adequately rock-dusted in 

that rock dust had not been applied to the roof, face, and 

ribs of the following places: No. 1 entry from the face 

outby for 50 feet, No. 2 entry from the face outby 55 feet 

(No. 3 entry was wetted down after the explosion and was too 

wet to sample for rock dust), No. 4 entry from the face 

outby for 50 feet, No. 5 entry from the face outby for 47 

feet, and throughout the last open crosscut from No. 1 to No. 

6 entries. Based on this condition, he charged Respondent 

with a violation of 30 C.F.R. § 75.402, in Order No. 2507995, 

and MSHA assessed a civil penalty of $750. Respondent did 

not contest this charge. The gravity of this violation was 

serious. 

10. In the accident investigation, MSHA Inspector J.M. 

Larmouth tested with a multimeter across a 0.1 ohm resistor 

between the frames of the 480 volt A.C. loading machine and 

the 300 volt D.C. shuttle car and found that the level of 

D.C. millivolts was in excess of 150. Because of this 

condition, he charged Respondent with a violation of 30 

C.F.R. § 75.524, in Citation No. 2508383, and MSHA assessed a 

civil penalty of $750. Respondent did not contest this 

charge. This was a serious violation that presented another 

possible source of ignition of methane. 

11. In the accident investigation, MSHA Inspector T.W. 

Cullen found that the trailing cable attached to the shuttle 

car had exposed bare wires at one place. Because of this 

condition, Respondent was charged with a violation of 30 

C.F.R. § 75.517, in Citation No. 2508003, and MSHA assessed a 

civil penalty of $750. Respondent did not contest this 

charge. This violation was serious. The exposed power wires 

apparently came into contact with the sheave bracket, causing 

1050 
an electric arc, which was the probable source of ignition of 

the methane. The arcing of the trailing cable could have 

been prevented, if the exposed wires had been properly 

insulated and protected from contact with other metal 

objects. 

12. In the accident invesigation, MSHA Inspector J.M. 

Larmouth tested the methane monitor on the loading machine 

and found that it did not work properly. When tested with a 

2.5 percent mixture of methane, the monitor would not 

deenergize the power on the loading machine and the meter on 

the methane monitor did not register more than 1.75 percent 

methane when the tests were conducted. Because of the 

defective monitor, Respondent was charged with a violation of 

30 C.F.R. § 75.313-1, in Citation No. 2508385, and MSHA 

assessed a civil penalty of $2,000. Respondent at first 

contested this charge but settled at the hearing by 

withdrawing its contest and agreeing to pay the penalty of 

$2,000. This was a serious violation. The methane explosion 

may have been prevented if the methane monitor had been 

operative and properly maintained. 

13. In the accident investigation, MHSA Inspector 

Stanley found that permanent stoppings had not been installed 

in the third open crosscut betw-een the intake and return 

entries. Because of this condition, Respondent was charged 

with a violation of 30 C.F.R. § 75.316, in Order No. 2507994, 

and MSHA assessed a civil penalty of $950. Respondent did 

not contest this charge. This was a serious violation. This 

condition could have allowed air in the intake entry to 

escape into the return entry, thus lessening the ventilation 

reaching the working face. 

14. In the accident investigation, Inspector Stanley 

tested for ventilation at the site of the explosion and found 

there was no perceptible movement of air. When he attempted 

to take an air reading at. the inby end of the line curtain, 

~O feet from the working face, the vanes of his anemometer 

would not turn and a smoke tube test also failed to disclose 

any perceptible movement of air. Management had represented 

to the MSHA investigation team that the evidence at the 

accident scene had not been disturbed or changed. Based upon 

this representation and his findings at the.scene, Inspector 

Stanley determined that the ventilation conditions he found 

were as they had existed at the time of the explosion. 

Accordingly, he issued Order No. 2507996, charging a 

1051 
violation of 30 C.F.R. § 75.301-1. This order was contested 

and is one of the two disputed charges in this proceeding. 

15. In the accident investigation, Inspector Stanley 

found that there were no temporary stoppings (air locks) 

across Entries 2 and 3 immediately outby the tailpiece as 

required by the operator's approved ventilation plan. 

Because of this condition, Inspector Stanley issued Order No. 

2507993 charging a violation of 30 C.F.R. § 75.316. This 

order was contested and is the second disputed charge in 

this proceeding. 

DISCUSSION WITH FURTHER FINDINGS 

Order No. 2507996 (Ventilation at the Working Face} 

This order charges a violation of 30 C.F.R. § 75.301-1, 

which provides that: 

A minimum quantity of 3,000 cubic 

feet a minute of air shall reach each working 

face from which coal is being cut, mined or 

loaded • • • • 

Inspector Louis Stanley, a Ventilaton Specialist for 

MSHA, with many years experience, testified that during the 

accident investigation he could find no perceptible movement 

of air in the working place of No. 3 entry. He tested for 

air at the inl;>y end of the line curtain with an anemometer 

and then with a smoke tube. He stated that the line curtain 

was in place, 10 feet from the face, and appeared to be tight 

and intact. The ventilation problem was that the cur~ain 

extended only about seven feet into the crosscut. Inspector 

Stanley stated that Peabody's failure to extend the curtain 

across the crosscut was the primary reason that there was no 

air movement at the inby end of the curtain in No. 3 entry. 

He stated that the line curtain was in ~ery good condition 

showing no signs of scorching, burning, or tattering, and 

that neither the inby nor the outby ends were torn b~t were, 

in fact, cut smoothly. 

Because the curtain looked surprisingly new, Inspector 

Stanley repeated his question to officials--including Mr. 

Douglas Rowans, the Mine Superintendent and Mr. Tom Barton, 

Assistant Superintendent, both of whom testified at the 

hearing--whether or not the scene of the explosion had 

been changed. The officials told him that the scene had not 

1052 
been changed. He relied upbn their representations in 

determining that the ventilation.conditions he found at the 

explosion site had existed at the time of the explosion. 

Peabody's other witness, Carol Browning, the Section 

Foreman, testified to a different fact situation concerning 

the line curtain. He stated that he arrived at the scene a 

few minutes after the explosion, more than four hours before 

all the other hearing witnesses, who arrived as a group about 

midnight. Browning stated that he found the curtain pushed 

back into the crosscut and that and that it must have been 

blown back there by the explosion. He stated that he pulled 

the curtain along with him as he walked up to the working 

place of No. 3 entry, and rehung the curtain as he went along. 

He stated that he rehung ths curtain in order to have oxygen 

as he checked and watered down the working place. He stated 

that he did not reanchor the curtain on the anchor provided, 

10 feet from the working face, but merely looped the end of 

the curtain over a nail about 15 to 20 feet from the workin·g 

face. He said that he did not tighten the overhead cable 

that the curtain hung on, and that the curtain sagged down 

from the roof in several places. He also said the curtain 

was scorched for two or three feet on one end, but did not 

have any holes (other than the eyelets provided for hanging 

the curtain) • 

Barton testified that the curtain was scorched in 

places, that it had some holes, and sagged in several places. 

Rowans testified that the curtain was loose and sagged 

in places. He did not look at it closely to notice whether 

or not there were holes or scorching. 

Browning did not tell anyone he had moved and rehung the 

curtain, until one or two weeks after the accident 

investigation. I find there was a strict obligation on the 

part of Respondent not to disturb or change the evidence at 

the explosion scene and, if any changes were made, to notify 

the MSHA accident investigation team of such changes 

immediately. Respondent may not be heard now to come in with 

a new version of the facts after the MSHA accident 

investigation with respect to changes in the evidence that 

were made by Respondent's own supervisor but not revealed to 

the MSHA investigation team. Moreover, the key to Inspector 

Stanley's finding of no air movement.at the accident scene 

was the location of the curtain only seven feet into the 

crosscut, indicating that the air escaped into the crosscut 

1053 
and did not reach the working face. I credit Stanley's 

testimony as to the distance of the curtain's extension into 

the crosscut over Browning's estimate of the distance, and 

also over the estimates given by Peabody's other witnesses. 

The location of the curtain end only seven feet into the 

crosscut substantially shows that at the time of the 

explosion the curtain was inadequate to direct the required 

ventilaton to the working face. 

The evidence shows that Browning was in a nervous, 

emotional state after the explosion. His unit had just had a 

serious explosion, with severe burns to two miners, due to a 

number of negligent violations that could have been prevented 

by the exercise of reasonable care and that would point to 

his supervision. I do not find that Browning was in a state 

of mind to register matters very accurately or objectively in 

his memory, right after the explosion. Also, he did not make 

notes or diagrams and measurements of the conditions he 

observed. On balance, his recollections are not accepted as 

sufficient to rebut Inspector Stanley's recollection, notes 

and diagrams of what he observed in the working place and 

crosscut. The·other witnesses, Barton and Rowans, also did 

not make contemporaneous notes or diagrams of the location of 

the cur~ain. No company representative objected when 

Inspector Stanley stated he was going to cite the company for 

a ventilaton violation at the working face. 

Respondent argues that Inspector Stanley's observations 

of the ventilation conditions at the face were not made while 

coal was being mined or loaded and therefore cannot sustain a 

charge of a violation of § 75.301-1, which requires 3,000 cfm 

of air at "each working face from which coal is being cut, 

mined or loaded •••• " I find that mine management's 

representations to MSHA that the conditions of the accident 

scene had not been changed and Inspector Stanley's 

observation of the curtain extending only seven feet into the 

crosscut and his finding that there was no perceptible air 

movement at the face at the time of investigation justify a 

finding that this ventilation condition existed at the time 

of the explosion, when coal was being loaded. I credit 

Inspector Stanley's expert opinion, as a Ventilation 

Specialist, that the failure to extend the curtain across the 

last open crosscut in No. 3 entry was the primary cause of 

the lack of perceptible air movement at the face. I also 

find that this dangerous ventilation condition existed at the 

time of the explosion and was a major contributing factor in 

allowing the buildup of methane to reach an explosive degree. 

1054 
It is commonly known in underground coal mining that a 

mixture of 5% to 15% methane in a mine environment is 

explosive and_ will remain explosive without adequate 

ventilaton. The purpose of the 3,000 cfm ventilation 

standard is "to dilute, render harmless, and to carry away, 

flammable, explosive, noxious, and harmful gases" (see 

section 303(b) of the Act). The evidence preponderates to 

show that Respondent violated the ventilation standard as 

charged in Order No. 2507996. 

Peabody's compliance history shows that, in the 24-month 

period preceding the explosion, Camp #2 Mine was cited for 

approximatley 50 paid violations of ventilation standards 

C§§ 75.300, -301, -301-1, -302, -302-1, and -316) many of 

which were significant and substantial violations, i.e., 

reasonably likely to result in serious injury to miners. The 

violation of the ventilation standard involved here 

contributed to a methane explosion that seriously burned two 

miners. It was a very serious violation that was due to a 

high degree of negligence. 

Considering the six criteria for civil penalties in 

section llO(i) of the Act, I find that a penalty of $5,000 is 

appropriate for this violation. 

Order No. 2507993 CAir Locks Outby the Working Face) 

This order alleges that "Temporary stoppings (air locks) 

were not erected across the Nos. 2 and 3 entry (neutrals) at 

a point just outby the belt tailpiece on the working 

section ••• as required by the approved ventilation and 

methane and dust control plan" CExh. G-2-P). 

There is no dispute, as shown by Exhibits G-4A-P and 

R-J-P, that the four temporary stoppings shown by horizontal 

lines were not in a straight line across Entries 2, 3, 4, and 

5, as required by the approved ventilation plan (Exh. G-3-P). 

However, Peabody contends that a fifth temporary stopping, 

the vertical line stopping in Exh. R-3-P, was in place to 

prevent air leakage. If ·Exhibit R-3-P is accepted as fact, 

there was a technical violation of the ventilation plan, but 

it was not serious because the air was still locked in by the 

fifth temporary stopping. If Exhibit G-4A-P is accepted as 

fact, there was a serious violation because the gap, shown in 

that exhibit, would have allowed the air to escape and reduce 

the ventilation at the working face where the explosion 

occurred. 

1055 
Inspector Stanley testified that he took an air reading 

at the last permanent stopping in the intake side of the unit 

and found 13,824 cfm (Tr. 41). He took an air reading on the 

return air side and found 11,742 cfm (see Exh. G-4A-P, upper 

left side). 

Rowans testified that he observed the area after the 

explosion and found five temporary stoppings as shown in 

Exhibit R-3-P, and that he made notes and a diagram of his 

observation when he exited the mine after he inspected the 

area. He also testified that, in his opinion, Inspector 

Stanley could not have measured 11,742 cfm in the return if 

there were a gap in the air locks because the air leakage 

would have caused a much lower reading. 

Barton testified that he knew the fifth temporary 

stopping was in place because he look a group of teachers 

through the area that morning and he observed that all of the 

temporary stoppings (shown in Exhibit R-3-P) were in place 

(Tr. 135). 

The MSHA inspectors entered the mine with management 

representatives Rowans and Barton (and others) and talked to 

them at different times while they made their accident 

investigation. However, the inspectors did not tell the 

management representatives what citations or orders would be 

issued until they all left the unit where the explosion had 

occurred. 

Rowans testified that, when Inspector Stanley told 

Rowans and Barton that he would be issuing an order for a 

violation concerning the air locks, Barton immediately 

objected, stating that the air locks were there, but Rowans 

interrupted him, saying, "I know what he's talking about. *** 

They're not in a straight line." and with that, Inspector 

Stanley went on to the next charge (Tr. 191). 

I find that there was not a clear communication to 

management representatives when Inspector Stanley told them 

what the mine would be charged with concerning the air locks. 

They did not understand that he was contending that there was 

a gap in the air locks, and even the written charge did not 

make that clear. Had Inspector Stanley made it clear to 

Rowans and Barton that he was contending that there was gap 

in the air locks that would let air escape, they would have 

had an opportunity to ask him to go back to the area with 

1056 
them to see the air locks that Rowans, Barton, and Browning 

say they observed and Rowans put in a diagram when he left 

the mine. 

In light of this lack of clear communication, the 

failure of Inspector Stanley to give, Rowans and Barton 

adequate notice of the nature of the charge so they could 

show him different evidence, and in light of the direct 

conflict of testimony and diagrams concerning the air locks,· 

I find that the evidence does not preponderate in showing the 

number of air locks present at the time of the explosion. 

The evidence does show that four air locks were not in a 

straight line, and thus a· violation of the ventilation plan, 

but the Secretary has not shown by a preponderance of the 

evidence that there was a gap in the air locks, i.e., that 

there was not a fifth air lock as shown in Exhibit R-3-P. I 

therefore find that the evidence establishes a technical 

violation of 30 C.F.R. § 75.316. Considering the six 

criteria for civil penalties in section llOCi) of the Act, I 

find that a penalty of $50 is appropriate for this violation. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in this proceeding. 

2. Respondent violated 30 C.F.R. § 75.301-1, as alleged 

in Order No. 2507996. 

3. Respondent violated 30 C.F.R. § 75.316 as alleged in 

section 12 <"Condition or Practice") of Order No. 2507993, 

but the Secretary did not prove by a preponderance of the 

evidence the allegations in sections 11, 20, 21-A, 21-B and 

21-C of such order. 

ORDER 

WHEREFORE IT IS ORDERED: 

1. The motion to approve settlement of Citation No. 

2508385 for a civil penalty of $2,000 is GRA~TED. 

1057 
2. Respondent shall pay the above three civil penalties 

in the total amount of $7,050.00 within 30 days of this 

Deci$ion. 

I J.AA ~ ~ ~---- ~.,,,,,.. William Fau er 

Administrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. 

Department of Labor, 280 U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

Michael O. McKown, Esq., P.O. Box 1990, Henderson, KY 42420 

(Certified Mail> 

kg 

1058 
FEDERAL MINE SAFETY AND HEALTH REVIEW C:OMMISSION 

OFFICE OF ADMINISTRATIVE. LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 51987 

YOUGHIOGHENY & OHIO COAL CONTEST PROCEEDINGS 

COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

YOUGHIOGHENY & OHIO COAL 

COMPANY, 

Respondent 

Docket No. LAKE 86-25-R 

Order No. 2823823; 11/6/85 

Docket No. LAKE 86-60-R 

Order No. 2823753; 2/4/86 

: Docket No. L~KE 86-120-R 

Order No. 2828630; 8/1/86 . . Docket No. LAKE 86-121-R 

Order No. 2828634; 8/5/86 

Nelms No. 2 Mine 

CIVIL PENALTY PROCEEDINGS 

: Docket No. LAKE 86-70 

A.C. No. 33-00968-03634 

Docket No. LAKE 86-74 

A.C. No. 33-00968-03635 

Docket No. LAKE 87-9 

A.C. No. 33-00968-03650 

Nelms No. 2 Mine 

DECISION 

Appearances: Robert C. Kota, Esq., St. Clairsville, Ohio, 

for Youghiogheny & Ohio Coal Company; 

Patrick M. Zohn, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Cleveland, Ohio, for the Secretary of Labor. 

Before: Judge Melick 

These consolidated cases are before me under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 80l et seq., "the Act" to challenge the issuance 

by the Secretary of Labor of citations a~d withdrawal orders 

to the Youghiogheny & Ohio Coal Company CY & 0) and for 

1059 
review of civil penalties proposed by the Secretary for the 

violations alleged therein. The general issues before me are 

whether Y & O violated the cited tegulatory standards and, if 

so, whether those violations where of such a nature as could 

significantly and substantially contribute to the cause and 

effect of a mine safety or health hazard, (i.e., whether the 

violations were "significant and substantial."> With respect 

to the withdrawal orders it will also be necessary to 

determine whether the violations were caused by the 

unwarrantable failure of the operator to comply with the 

cited regulation. If violations are found, it will be 

necessary to determine the appropriate civil penalty to be 

assessed in accordance with section llO(i) of the Act. 

DOCKET NO. LAKE 86-74 

At hearing, the Secretary moved to approve a settlement 

agreement with respect to Citation No. 2823824 proposing a 

$20 penalty for a non-"significant and substantial" violation. 

Y & O agreed to the proposed settlement. I have considered 

the representations and documentations submitted in support 

of the motion and conclude that the proffered settlement is 

appropriate under the criteria set forth in section llOCi) of 

the Act. 

DOCKET NO. LAKE 86-70 and LAKE 86-25-R 

The order at issue in these cases, Order No. 2823823, as 

amended, was issued under section 104Cd)(l) of the Act, 1/ 

and alleges as follows: 

!I Section 104{d)(l) of the Act reads as follows: 

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

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety 

standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, such 

violation is of such nature as could significantly and 

substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation 

given to the operator under this Act. If, during the same 

inspection or any subsequent inspection of such mine within 

90 days after the issuance of such citation, an authorized 

representative of the Secretary finds another violation of 

any mandatory health or safety standard and finds such 

violation to be also caused by an unwarrantable failure of 

1060 
Float coal dust was permitted by the 

operator to accumulate on the mine floor, roof 

and ribs, of the I return entry and left side 

connecting crosscuts from survey station 5 + 

40 feet to 13 + 20 feet which was a linear 

distance of 780 feet. This condition had been 

recorded in the record book on 11-1-85 and 

11-5-85 by G. Pepperling, firebos.s. Foreman 

on this section on this shift were G. Torak 

and J. Corder. 

The cited standard, 30 C.F.R. § 75.400 provides that 

"coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on electric equipment 

therein." 

Y & 0 does not dispute that the violation occurred as 

alleged but maintains that the violation was neither 

"significant and substantial" nor due to the "unwarrantable 

failure" of the opera tor to comply with the cited standard. 

According to Inspector Fran~ Homko, of the Federal Mine 

Safety and Health Administration (MSHA), at the time of his 

inspection on November 6, 1985, approximately 450 to 500 feet 

of the return air course in the No. 2 section in the 2 East 

main North part of the Nelms No. 2 Mine was dark black in -

color and an additional contiguous 280 to 330 feet was black 

to dark gray in color from coal dust accumulations. Homko 

therefore found that approximately 780 linear feet of the 

floor, roof and ribs in the return air course and 11 

connecting crosscuts were in violation of the cited standard. 

Inspector Homko observed that electrical equipment was 

operating on the cited section including continuous-mining 

machines, ram cars and auxiliary ventilation fans. In 

addition, he noted that a battery-charging station that was 

fn. 1 (continued) 

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 ref erred 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." 

1061 
vented directly into the return air course at issue had 

exposed bare electrical power conductors. Homko opined that 

the float coal dust accumulations in the return air course 

could very well propagate fire or explosion particularly when 

considered in conjunction with the fact that the Nelms No. 2 

Mine liberates over 1,000,000 cubic feet of methane per day. 

Homko also observed that there had been a history of gas 

ignitions at this mine and that there was a. potential for a 

hydrogen gas explosion from the battery-charging station with 

its exposed electrical wiring and that such explosion would 

be vented directly into the return air course. Homko 

observed that 14 miners worked on the section and would be 

exposed to the hazards. Within this framework, I am 

satisfied that the violation was "significant and 

substantial" and serious. Secretary v. Mathies Coal Co., 

6 FMSHRC 1 (1984). 

I also find that the violation was the result of 

"unwarrantable failure." In this regard, Inspector Homko 

testified that the company records of its inspections show 

that the cited area was "firebossed" on November 1, and 

November 5, 1985. Indeed, page 1 of the record book (Ex. G-5) 

shows that on November 1, 1985, 5 days before Homko's 

inspection of the same air course, Union fireboss Gary 

Pepperling had examined the return and reported that it 

needed rock dusting. In addition, Pepperling reported again 

on page 2 of that document that on November 5, 1986, 1 day 

before Homko's inspection, that the return needed dusting. 

These reports were countersigned by the mine fqreman and mine 

superintendent. Under the circumstances, it is clear that 

Y & O management had advance notice of the violative 

conditions, yet had not corrected them by the time of Homko's 

inspection. 

Y & O's former assistant safety director, Don Statler, 

who accompanied Homko on his inspection that day, 

acknowledged the existence of the cited coal dust but 

observed that they had been rockdusting up to the afternoon 

shift of the day before. Statler conceded that no 

rockdusting was being performed at the time he and Homko 

observed the cited conditions on November 6, 1985. Statler 

also observed that "action taken" to remedy hazardous 

conditions reported in the shift books are reported only in 

the "work assignments" book, so that no inference can be 

drawn from the absence of "remedial" entries in the shift 

books. Statler's testimony does not, however, negate the 

evidence that mine management knew of the violative coal 

dust, yet had discontinued corrective action to remedy this 

1062 
serious hazard the day before it was cited. Under the 

circumstances, the violation was indeed the result of "the 

unwarrantable failure" of the operator to comply. Zeigler 

Coal Corp., 7 IBMA 280 (1977>; United States Steel Corp., . 

6 FMSHRC 1423 (1984). For the same reasons it is apparent 

that the violation was the result of operator negligence. 

Order No. 2823823 is accordingly affirmed and the 

contest of that order is denied. 

DOCKET NOS. LAKE 86-74 AND LAKE 86-60-R 

The order at issue in these cases, Order No. 2823753, 

issued pursuant to section 104(d)(2) of the Act 2; charges a 

violation of the standard at 30 C.F.R. § 75.301 and alleges 

as follows: 

The quantity of air reaching the last 

open crosscut separating the intake from the 

return, between Nos. H to I entries left side 

in 2 section 1 east main north was only 

1,732 cubic feet a minute and the last open 

crosscut separating the intake from the return 

between Nos. B to A entries right side in 2 

section 1 east main north was only 4,800 cubic 

feet a minute. The quantity of air was 

measured with a chemical S·moke cloud. The 

last open crosscut left side between Nos. H to 

I entries had just been mined and a twin boom 

roof bolting machine was operating in this 

crosscut. This is a super section with two 

sets of equipment and operators alternating 

from the left side to the right side each cut 

of coal." 

~/ Section 104Cd)(2) of the Act reads as follows: 

"If a withdrawal order with respect to any area in a 

coal or other mine has been issued pursuant to paragraph (1), 

a withdrawal order shall promptly be issued by an authorized 

representative of the Secretary who finds upon any subsequent 

inspection the existence in such mine of violations similar 

to those that resulted in the issuance of the withdrawal 

order under paragraph (L) until such time as an inspection of 

such mine discloses no similar violations. Following an 

inspection of such mine which discloses no similar 

violations, the provisions of paragraph (1) shall again be 

applicable to that mine." · 

It is not disputed that in this case there were no 

intervening "clean inspections." 

1063 
The cited standard provides in part as follows: 

The minimum quantity of air reaching the 

last open crosscut in any pair or set of 

developing entries, and the last open crosscut 

in any pair or set of rooms shall be 

9,000 cubic feet a minute, and the minimum 

quantity of air reaching the intake end of a 

pillar line shall be 9,000 cubic feet a 

minute, and the minimum quantity of air 

reaching the intake end of a pillar line shall 

be 3,000 cubic feet a minute. 

Again, Y & o does not dispute the violation, but 

maintains that it was neither a "significant and substantial" 

violation nor the result of "unwarrantable failure" to comply 

with the cited mandatory standard. MSHA Inspector Herbert 

Cook was conducting a spot inspection at the Nelms No. 2 Mine 

on February 4, 1986, when he noticed that little air was 

ventilating the last open crosscut. He attempted to use his 

anemometer between the A and B entries on the right side of 

the last open crosscut but found because of the minimal air 

flow he was unable to obtain any reading. Cook then 

performed a smoke tube test and found from the computed 

results only 4,800 cubic feet of air per minute. 

Cook then proceeded to the left side where two miners 

were "sweating profusely" as they were working. They asked 

Cook to check the air because they felt it was insufficient. 

Cook again attempted to use his anemometer, but found that 

the blades would not turn. Cook again took smoke cloud 

readings, and the computed results showed only 1,732 cubic 

feet of air per minute in the last open crosscut, where 

9,000 cubic feet per minute was required. Cook then found 

that only 9,500 cubic feet per minute of air was coming onto 

the entire section, whereas, 18,000 cubic feet per minute was 

the minimum necessary at the intake. 

Cook observed that electrical equipment was operating on 

the section including roof bolters, continuous miners and two 

battery chargers. He opined that the condition was hazardous 

because the ventilation was insufficient to remove respirable 

dust and to dilute methane. Under the circumstances, it may 

be inferred that the violation was serious and "significant 

and substantial." Mathies, supra. 

I do not, however, agree that the violation was the 

result of the "unwarrantable failure" of the operator to 

comply with the standard or of significant operator 

1064 
negligence~ It is undisputed that the preshift report shows 

that the section was properly ventilated when the readings 

were taken between 5 a.m. and 8 a.m. that morning. It is 

further undisputed that the section foreman had verified the 

adequacy of the ventilation shortly before 9:00 that morning. 

The mine fan gauge chart shows that the interruption of air 

flow began shortly thereafter and that the air deficiency was 

discovered by the inspector at around 9:25 that same morning. 

In addition, further investigation rev~aled that the air 

deficiency was primarily ca.used by a ventilation door. being 

left open by an independent contractor who was constructing a 

new air shaft located some 2,000'feet from the section at 

issue. These mitigating circumstances clearly reduce the 

degree of negligence and negate an "unwarrantable failure" 

finding. · · 

In reaching these conclusions, I have not disgregarded 

the testimony of Inspector Cook and union representative, 

Larry Ward, that the absence of air should have been known to 

the section foreman because of the absence of a "fresh 

breeze." However, I observe that Mr. ward conceded on 

cross-examination that the difference between the required 

ventilation and that found by Inspector Cook was only about 

1/2 mile per hour--a dif fer~nce not detectable by the amount 

of breeze on the skin. Under the circumstances, Order 

No. 2823753 is modified to a "significant and substantial" 

citation under section 104(a) of the Act. See Secretary v. 

Consolidation Coal Co., 4 FMSHRC 1791 (1982). 

DOCKET NOS. LAKE 87-9, LAKE 86-120-R, AND LAKE 86-121-R 

At hearing, the Secretary moved for settlement of Order 

No. 2828630 (Contest Docket No. LAKE 86-120-R) proposing a 

penalty of $500. Y & O agreed to pay the penalty in full. I 

have considered the representations and documentation 

submitted in.connection with the proposal and I conclude that 

the proffered settlement is appropriate under the criteria 

set forth in section llO(i) of the Act. In light of the 

proffered settlement, Y & O also requested to withdraw its 

contest of said order. Under the circumstances, I accept the 

request to withdraw and Contest Proceeding LAKE 86-120-R is 

accordingly dismissed. 

Order No. 2828634 alleges a violation of the standard at 

30 C.F.R. § 75.1710-l(a)(2) and charges as follows: 

During an inspection requested by a 

representative of the miners, it was 

determined that a battery powered scoop 

tractor (Serial No. 4881141) was used to clean 

1065 
up coal and other debris in and inby the last 

open crosscut in the main north section and 

the battery powered scoop tractor was not 

provided with a substantially constructed 

canopy or cab. The height of the coal bed was 

62 inches. John Slates (section foreman) 

instructed David Parrish to operate the 

battery powered scoop in this area. 8-1-86. 

The cited standard, 30 C.F.R. § 75.1710-l(a)(2) 

provides, in relevant part, as follows: 

Except as provided in paragraph Cf) of 

this section, all self-propelled electric face 

equipment, including shuttle cars, which is 

employed in the active workings of each 

underground coal mine on and after January 1, 

1973, shall, in accordance with the schedule 

of time specified in paragraphs Ca)(l), (2), 

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

equipped with substantially constructed 

canopies or cabs, located and installed in 

such a manner that when the operator is at the 

operating controls of such equipment, he shall 

be protected from falls of roof, face, or rib, 

or from rib and face rolls. The requirements 

of this paragraph (a) shall be met as follows: 

••• (2) On and after July 1, 1974, in coal 

mines having mining heights of 60 inches or 

more, but less than 72 inches. 

The violation is not disputed by Y & O. It acknowledges 

that the battery powered scoop tractor, absent the required 

canopy, had in fact been operated inby the last open crosscut 

on August 5, 1986. Y & O maintains in its posthearing brief~ 

however, that the order, as an order under section 104(d)(l) 

of the Act, must fail because it cannot properly be issued on 

an "after-the-fact investigation." See fn. 1 supra. Whether 

or not this order was issued improperly in this regard is 

immaterial since I find for the reasons that follow that the 

order is in any event deficient. 

The evidence shows that MSHA Inspector Ervin Dean was 

performing an inspection at the Nelms No. 2 Mine on August 4, 

1986, when he was given a "section 103(g)" requestfor-inspection by Union Safety Committeeman Larry Ward. In 

his request, Mr. ward alleged that a battery powered scoop 

had been operated inby the last open crosscut of the main 

north section of the Nelms No. 2 Mine, without the use of a 

canopy on August 1, 1986. Based upon this request, Inspector 

1066 
Dean convened a meeting in the off ice of Mine Superintendent 

Charles Wurschu~. Present at that meeting were Inspectors 

Dean and Ohler, Mine Superintendent Wurschum, Safety Director 

John Woods, and Section Foreman John Slates. 

The evidence shows that Slates was the section foreman 

in charge of the main north section on August 1, 1986, when 

the violation occurred. Slates admitted that he knew the 

subject scoop car did not have a canopy and knew that it was 

required to have a canopy under the pertinent standards. 

Slates further conceded that he ordered the scoop car to be 

operated without a canopy in the last open crosscut, and that 

he knew it was a violation. 

On August 5, 1986, Inspector Dean returned to the Nelms 

No. 2 Mine and performed a physical inspection of the area in 

which the subject scoop car had been operated on August 1, 

1986, and measured the mining height. The mining height in 

the cited area was found to be 62 inches thereby 

necessitating the use of a canopy by July 1, 1974, under the 

cited standard. 

The only basis for Inspector Dean's conclusion that the 

violation was "significant and substantial" however was 

evidence that the roof in the cited area was "shaly" and that 

the area was being rehabilitated thereby allowing the roof an 

opportunity to "work." Dean's opinion that the employee 

working inby the .last open crosscut would be in an area 

within 25 feet of the face "wh~re most roof falls occur" adds 

little weight to his conclusion. The scoop was merely 

performing cleanup work in an area in which other miners 

could legally be performing other work without a cab or 

canopy. Accordingly I do not find that the Secretary has met 

the requisite .burden of proof for establishing this as a 

"significant and substantial" violation. Mathies, supra. 

Order No. 2828634 must therefore fail as an order under 

section 104Cd)Cl) of the Act, and is accordingly modified to 

a citation under section 104(a) of the Act. Consolidation 

Coal Co., supra. For similar reasons, I find that the 

Secretary has failed to prove the violation to be of high 

gravity. 

I do find, however, that the violation was the result of 

gross operator negligence and indeed was a willful violation. 

The responsible section foreman readily admitted that what he 

did was a violation and that he nevertheless directed his 

employee to work in the last open crosscut on equipment not 

provided with the requisite canopy. 

1067 
Civil Penalties 

In assessing civil penalties.for the contested 

violations herein, I have also considered the undisputed 

evidence of the operator's history of violations, size and 

good faith abatement of the cited conditions. Accordingly, 

the following civil penalties are found to be appropriate for 

the contested violations: Citation No. 2823753 - $750; Order 

No. 2823823 - $750; Citation No. 2828634 - $400. 

ORDER 

The Youghiogheny & Ohio Coal Company is hereby ordered 

to pay the following civil penalties within 30 days of the 

date of this decision: Citation No. 2823824 - $20; Citation 

No. 2823753 - $750; Order No. 2823823 - $750; Order 

No. 2828630 - $500; Citation No. 2828634 - $400. The Contest 

Proceedings are dismissed or granted in part in accordance 

with this decision. 

Distribution: 

Robert c. Kota, Esq., Youghiogheny 

Box 1000, St. Clairsville, OH 43950 

aw Judge 

Company, P.O. 

Mail) 

Patrick M. Zohn, Esq., Office of the Solicitor, U.S. 

Department of Labor, 881 Federal Office Building, 1240 East 

Ninth Street, Cleveland, OH 44199 (Certifi~d Mail) 

/f b 

1068 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JUN 819·87 OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

MID-CONTINENT RESOURCES, 

INC., 

Respondent 

: 

Docket No. WEST 87-40 

A.C. No. 05-03644-03535 

Coal Creek Prep Plant 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, 

Glenwood Springs, Colorado, 

for Respondent .. 

Before: Judge Cetti 

Statement of the Case 

This civil penalty proceeding arises under the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., {"Mine 

Act"). The Secretary of Labor, on behalf of the Mine Safety 

and Health Administration, charges the operator of a coal mine 

with violating a safety regulation, 30 C.F.R. § 48.28(a) which 

requires each miner to receive a minimum of 8 hours of annual 

refresher training as prescribed in the section. 

This proceeding was initiated by the Secretary with the 

filing of a proposal for assessment of a civil penalty. The 

operator filed a timely appeal contesting the existence of the 

alleged violations and the amount of ·the· proposed $200 penalty. 

Discussion 

When this civil penalty proceeding was called for hearing 

on April 28, 1987, the parties announced upon the record that 

they had reached a settlement. 

1069 
Counsel for the petitioner moved to amend the citation from 

a significant and substantial violation to a non-significant and 

substantial' violation and to reduce the proposed civil penalty 

from $200 to $20. Respondent, in turn, moved to withdraw its 

notice of contest. 

The motions were based on the fact that further study and 

investigation established that the miner in question had received 

annual refresher training but the MSHA form sent in by the operator 

was npt properly filled out as to the type of training he received 

or possibly that he received "underground" training rather than 

the "surface" t·raining he should have received. The miner had at 

one time been given complete underground coal training and had 

received annual retraining as appropriate in January each year. 

His entire employment with respondent had been on the "Rock Tunnel 

Project" and in the Coal Basin Preparation P_lant. 

After careful review and consideration of the pleadings, arguments, and the information placed upon the record at the hearing, 

I am satisfied that the proposed settlement disposition is reasonable, appropriate and in the public interest. 

Accordingly, the motions made at trial are granted. 

ORDER 

Citation No. 2831755 is amended to allege a non-significant 

and substantial violation of safety regulation 30 C.F.R. 48.28(a) 

and, as amended the Citation is affirmed and respondent is ORDERED 

to pay a civil penalty of $20 within 30 days from the date of this 

decision. 

Distribution: 

-~ 

Aug t F. Cetti 

Administrative Law Judge 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, co 

80294 (Certified Mail) 

Edward.Mulhall, .Jr., Esq., Delaney & Balcomb, P.O. Drawer 790, 

Glenwood Springs, CO 81602 (Certified Mail) 

/ot 

1070 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE AOO 

DENVER, COLORADO 80204 

JUN 81987. 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

VINNELL MINING & MINERALS 

CORPORATION, 

Respondent 

. . Docket No. WEST 85-152-M 

A.C. No. 04-03008-05509 

: Oro Grande 

. . Docket No. WEST 86-157-M 

A.C. No. 04-03008-05510 

Oro Grande Silica Mine 

DECISION 

Appearances: Leroy Smith, Esq., Office of the Solicitor, U.S. 

Department of Labor, Los Angeles, California, 

for Petitioneri 

Mr. Don L. McRae, Vice President, Vinnell Mining & 

Minerals Corporation, El Monte, California, 

pro se .• 

Before: Judge Lasher 

These proceedings were initiated by the filing of petitions 

for assessment of a civil penalty by the Secretary of Labor 

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

Act of 1977, 30 U.S.C. Section 820(a)(l977). The Secretary seeks 

assessment of penalties for a total of 13 alleged violations involved in the two dockets. 

After the hearing in Victorville, California on April 8 and 

9, 1987, the parties reached a settlement, which is here 

approved, involving 9 of the 13 alleged violations. Pursuant 

thereto, Respondent agrees to pay the full amount of Petitioner's 

initially proposed penalties, to wit: 

Citation No. 

2671481 

2671484 

2671485 

2671486 

2671488 

2364698 (Docket 85-152-M~/> 

2671482 

2671487 

2671489 

Penalty 

$ 20.00 

20.00 

20. 00 

20.00 

20.00 

119.00 

91.00 

91.00 

68.00 

1/ This Citation is the only one involved in Docket WEST 

85-152-M. The remaining 12 Citations are contained in WEST 

86-157-M. 

1071 
With respect to five of these Citations, Nos. 2671481, 

2671484, 2671485, 2671486, and 2671488, the Secretary did not 

designate the violations involved as "Significant and Substantial". As to the remaining four Citations resolved by the 

agreement, Nos. 2364698, 2671482, 2671487, and 2671489, the 

parties have agreed that the violations described therein were 

"significant and substantial". 

Four of the original 13 Citations (Nos. 2671483, 2671490, 

2671491 and 2671492) remain for disposition. As part of their 

settlement, the parties agree that the "significant and 

substantial" designation thereon should be deleted and such will 

be so ordered subsequently herein. The occurrence of all violations being conceded, the issues involved for determination 

here are the amount of appropriate penalties which should be 

assessed for the four violations cited in Citations Nos. 2671483, 

2671490, 2671491, and 2671492. 

The amount of a penalty should relate to the degree of a 

mine operator's culpability in terms of willfulness or 

negligence, the seriousness of a given violation, the business 

size of the operator, and the mine operator's compliance history, 

i.e., number and nature of violations previously discovered at 

the mine involved. Mitigating factors include the operator's 

good faith in promptly abating violative conditions and the fact 

that a significantly adverse effect on the operator's ability to 

continue in business would result from assessment of penalties at 

a particular monetary level. Factors other than the six abovementioned criteria <which are expressly provided in the Act) are 

not precluded from consideration either t9 increase or reduce the 

amount of penalty otherwise warranted. 

Based on written stipulations submitted by the parties prior 

to hearing, I find this to be a small mine operator CT. 60) with 

an average history of prior violations Cll in the preceding 

24-month period) who proceeded in good faith to promptly abate 

these four violations upon notification thereof. Payment of 

appropriate penalties will not jeopardize Respondent's ability to 

continue in business. The remaining mandated assessment factors, 

negligence and gravity, are separately discussed below as to each 

of the four Citations. 

CITATION NO. 2671483 

The standard infracted, 30 C.F.R. § 56.12032, provides: 

"Inspection and cover plates on electrical equipment 

and junction boxes shall be kept in place at all times 

except during testing or repairs." 

The violative condition Cor practice> involved is described 

in the subject Citation as follows: 

1072 
"The main electrical panels cover plates were not in place. 

The panels were rated on high voltage. In the event a 

person would come in contact with energized part a serious 

injury would occur." 

When observed by MSHA Inspector Edmundo Archuleta, the cover 

plates were laying on the ground in an unlocked building, an 8 x 

20 trailer. The Inspector was advised that an electrical 

contractor was installing a new electrical system-but no one was 

in the area (including employees) when the condition was 

observed, nor were any warning signs up. The panel (conductors) 

was energized at· the time. A sign on the one door to the trailer 

said: "Danger High Voltage". · The record indicates that had someone tripped or otherwise have cont~cted the exposed energized 

wires, a fatality could have resulted. The Inspector felt it was 

likely that such event could have occurred and that one person 

would have been exposed to the hazard. Respondent showed that 

there was no reason for any employee to have been in the building 

and that the electrical contractor was the one who removed and 

left off the cover plates. There was no evidence as to the 

length of time the cove~ plates were off the panel. The electrical contractor worked for Respondent for approximately four 

months months and the inspection was conducted approximately midway or toward the end of such period CT. 140). 

This is found to be a serious violation which resulted from 

the negligence of Respondent •. Since it is not a "significant and 

substantial" violation, a penalty of $75.00 is found appropriate. 

CITATION NO. 2671490 

The standard infracted, 30 C.F.R. § 56.9007, provides: 

"Unguarded conveyors with walkways shall be equipped with 

emergency stop devices or cords along their full length." 

The violative condition cited is described in the Citation 

as follows: 

"The conveyor belt fe~ding the stacker conveyor belt was 

not equipped with an emergency stop device with stop cord. 

The conveyor belt was in the area where person (sic) walk 

and work on it." 

At the hearing, Respondent contended that while the conveyor 

had no emergency stop device and was unguarded it had no 

"walkway" and was not covered by standard. Pursuant to the 

settlement herein, however, the violation was conceded. 

The record indicates that the plant was not operating on the 

day the violation was observed by the Inspector. The hazard 

envisaged by the Inspector was that an employee could be caught 

in the pinch points while cleaning up spillage around the 

1073 
conveyor. Only one miner would have been jeopardized by the 

hazard created. Respondent presented convincing evidence that 

because of .the distance above ground at the particular place 

where an employee might encounter the hazard there was only an 

extremely remote chance that he would come into contact with the 

pinch points CT.. 213-214, 231-233). 

In view of the facts that the plant was not operating on the 

day the violation was observed, the remoteness of the r.isk 

createa by the violation ever coming to fruition, and the 

strength of Respondent's justification for questioning the 

application of the standard to the condition to begin with, it is 

concluded that only very moderate degrees of negligence and 

gravity should be attributed to this violation. A penalty of but 

$25.00 is found appropriate and is assessed. 

CITATION NO. 2671491 

The standard infracted, 30 C.F.R. § 56.9007, is the same as 

that quoted above in connection with the previous Citation. The 

violative described therein is as follows: 

"The stacker conveyor belt in the main plant was not 

equipped with an emergency stop device with stop cord. 

The conveyor belt is located where persons walk by it 

or have to work on it." 

The Inspector's determinations with respect to this 

Citation were the same as those made in connection with the 

previous Citation, No. 2671490 CT. 243). The injuries he 

contemplated had an accident occurred ranged from the type which 

might result in "lost time" to those which might result in a 

fatality. The Inspector's opinion was that the ~espondent was 

negligent since the violation was in "plain view" and that the 

degree of such negligence was but "moderate" since the plant was 

not in operation on the day of inspection. Respondent's evidence 

again established that because of the height of the place where 

the hazard was present it was "possible" but not likely that an 

injury would result t~erefrom. As in the case of the violation 

described in Citation No. 2671490, I conclude that dnly low 

degrees of gravity and negligence should be attributed to this 

violation. A penalty of $25.00 is assessed. 

CITATION NO. 2671492 

The standard violated, 30 C.F.R. § 56.14001, provides: 

"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 

perso_ns, shall be guarded." 

The violative condition involved is described in the 

Citation as follows: 

1074 
"The head pulleys on the west side of the cone crusher 

under conveyor belt was not guarded. The unguarded pulley 

was within the reach of persons who walk or work by the 

unguarded pulley." 

The Inspector testified that the injuries which could result 

from this violation ranged from those resulting in "lost workdays" to fatalities. The hazard he foresaw was "if somebody was 

cleaning up or doing maintenance, they could come in contact with 

the unguarded pinch point and somebody could have also stumbled 

in and fell into the belt." He also attributed but a moderate 

degree of negligence to Respondent since he felt that after completion of the "expansion" program in progress at the time, 

Respondent would have installed appropriate guarding. The violative condition was open·"to plain view." CT. 263). As with 

other violations, Respondent established that the plant was not 

running on the day in question. Respondent also showed that it 

was quite unlikely that cleaning up spillage would be attempted 

while the plant was in operation and the belts running {Tr. 

266-267). Accordingly, the violation is found to be of a low 

degree of gravity and to have resulted from only a moderate 

degree of negligence on Respondent's part. As with the prior 

three violations, the "significant and substantial" designation 

is to be deleted-warranting a reduction in penalty. A penalty of 

$25.00 is found appropriate. 

ORDER 

Respondent shall pay the Secretary of Labor within 30 days 

from the date hereof the penalties hereinabove individually 

assessed for the 13 violations in the total sum of $619.00. 

Citation Nos. 2671483, 2671490, 2671491, and 2671492 are 

modified to delete that portion thereof designating such violations as being "significant and substantial" and are affirmed 

in all other respects; the other nine Citations involved are 

affirmed in all respects. 

Distribution: 

/,), ·/ " a -~~ lic.t.. '"71- - "'7/hvf,C~t --l...- ~"f:- / · 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Leroy Smith, Esq., Office of the Solicitor, U.S. Department of 

Labor, 3247 Federal Building, 300 ~. Los Angeles Street, Los 

Angeles, CA 90012 {Certified Mail) 

Vinnell Mining and Minerals Corporation, Mr. L.K. Richardson, Mr. 

Don McRae, Vice President, 3380 Flair Avenue, Suite 236, El 

Monte, CA 91731 {Certified Mail) 

/bls 

1075 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES JUN 8 1981 333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BERT W. BIELZ, JR., and 

RICHARD McNEELY, 

Respondents 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 85-154-M 

A.C. No. 05-03695-05512 A 

Docket No. WEST 85-163-M 

A.C. No. 05-03695-05513 A 

Silver State Mining Corporation' 

Iron Clad Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Morris 

These are consolidated civil penalty proceedings initiated 

by the petitioner against respondents in accordance with the 

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

seq. 

In Docket No. WEST 85-154-M respondent Bielz is charged in 

Citation 2099741 as an agent of the corporate mine operator with 

knowingly authorizing, ordering or carrying out the operator's 

violations of the mandatory safety standards published at 30 C.F.R. 

§ 55.5-2 and § 55.5-5. 

In WEST 85-163-M the same charges in Citation 2099742 are 

pending against respondent McNeely as an agent of the corporate 

mine operator. 

Under section llO(a) of the Act, the corporate mine operator 

was assessed a civil penalty of $1,000 for its violation of 30 

C.F.R. § 55.5-2 and a civil penalty of $5,000 for its violation 

of §· 55. 5-5. See Secretary of Labor (MSHA) v. Silver State 

Mining Corporation, FMSHRC .Docket No. WEST 84-145-M. The case, 

decided by Commission Administrative Law Judge Gary Melick on 

April 2, 1987 has not been appealed. 

In the present proceedings under sectiqn llO(c) of the Act, 

a civil penalty of $200 for violating 30 C.F.R. § 55.5-2 and a 

civil.penalty of $2,000 for violating 30 C.F.R. § 55.5-5 were 

proposed against each of the respondents herein. 

Respondents now desire to withdraw their contests in these 

proceedings and they have tendered to the Secretary two separate 

checks in the amount of $2,200 each, representing payment in full 

of the proposed civil penalties herein. · 

1076 
I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. It should be approved. 

Accordingly, I enter the following: 

ORDER 

1. The settlement is approved. 

2. In WEST 85-154-M the Secretary's.petition is affirmed. 

For the violation of Citation 4099741 a civil penalty of 

$200 is assessed. 

For the violation of Citation 2099742 a civil penalty of 

$2,000 is assessed. 

3. In WEST 85-163-M the Secretary's petition is affirmed. 

For the violation of Citation 2099741 a civil penalty of 

$200 is assessed. 

For the violation of Citation 2099742 a civil penalty of 

$2,000 is assessed. 

Law Judge 

Distribution: 

J. Philip Smith, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Randy L. Parcel, Esq., Parcel & Mauro, 1801 California Street, 

Denver, CO 80202 {Certified Mail) 

/ot 

1077 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES JUN 8 \987 333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

HENRY C. STAIRS, 

Complainant 

v. 

COEUR d'ALENE MINES 

CORPORATION, . 

Respondent 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEST 86-198-DM 

MD 86-34 

ORDER DISMISSING WITH PREJUDICE 

Complainant Henry c. Stairs died July 10, 1986, leaving 

no surviving spouse. Although the known next of kin have been 

contacted, no one has been appointed to serve as Personal 

Representative of the Complainant's estate or indicated any 

interest in such an appointment. 

Finally, on May 12, 1987, a Notice that the case would be 

dismissed with prejudice unless a Personal Representative was 

appointed and made an appearance in this matter within 20 days 

was sent by certified mail to all known next of kin. There 

has been no response to the Notice of intention. Under the 

circumstances Coeur d'Alene Mines Corporation is entitled to 

an order dismissing the case with prejudice. 

ORDER 

Good cause having been shown it is ORDEREQ that the above 

captioned case be and it hereby is dismissed with prejudice. 

Distribution: 

Au st F. Cetti 

Administrative Law'Judge 

W.W. Nixon, Esq., 409 Coeur d'Alene Avenue, P.O. Box 1560, 

Coeur d'Alene, Idaho 83814 (Certified Mail) 

Fred M. Gibler, Esq., Evans, Keane, Koontz, Boyd & Ripley, 

111 Main Street, P.O. Box 659, Kellogg, Idaho 83837-0659 

(Certified Mail) 

/ot 

1078 
FEDERAL. MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ALT, INCORPORATED, 

Respondent 

JUN 91987 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 85-312 

A. C. No. 36-06352-03505 

: Iselin Mine 

. . 

DECISION 

Appearances: Mark Swartz, Esq., Office of the Solicitor, U. S. 

Department of Labor, Philadelphia, Pennsylvania, 

for the Petitioner; 

Donald P.· Tarosky, Esq., Greensburg, Pennsylvania, 

for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

The Secretary (Petitioner) filed a petition for Assessment 

of Civil Penalty for an alleged violation by Respondent of 

30 C.F.R. § 77.1001. Pursuant to notice the case was heard in 

Pittsburgh, Pennsylvania, on March 12, 1987. Wendell A. Hill 

testified for Petitioner, and Harold Altmire and Jay Altmire 

testified for the Respondent. 

' Petitioner, at the onset of the hearing, made a motion to 

disallow Respondent from introducing evidence on the issues of 

"significant and substantial" and "unwarrantable failure." 

Decision was reserved to allow the Parties to brief this issue. 

Petitioner filed its posthearing brief on May 7, 1987, and 

Respondent filed its brief on May 13, 1987. 

Stipulations 

The Parties have stipulated as follows: 

1. Alt, Incorporated owned and operated the Iselin 

Mine on May 5, 1985, and is subject to the jurisdiction 

of the Federal Coal Mine Safety and Health Act of 1977, 

Public Law 91-173, as amended by Public Law 95-164 

C Act). 

1079 
2. Alt, Incorporated owned and operated the Iselin 

Mine as of November 19, 1984. 

3. The Iselin Mine is a surface coal mine and is subject the regulations found at 30 C.F.R., Part 77. 

4. The Administrative Law Judge has jurisdiction over 

this proceeding pursuant to section 105 of the 1977 

Act. 

s. A copy of Citation Number 2409178 (attached to the 

Petition for Adjudication (sic.) of Civil Penalty) is an 

authentic copy of the original citation. 

6. The Parties stipulate to the authenticity and admissibility of the following documents: 

a. A copy of Citation Number 2409178 issued by 

Wendell E. Hill on May 15, 1985. 

b. A copy of the inspector's notes prepared by 

Wendell E. Hill concerning his May 15, 1985 

inspection of the Iselin Mine. 

7. During the period from November 19, 1984 through 

May 14, 1985, the Alt, Incorporated Iselin Mine had a 

history of one assessed and paid violation: 104(a) 

Citation Number 2408087 issued on February 1, 1985, 

with an assessment of $20.00. 

8. The assessment of $500 penalty in this matter will 

not affect the Respondent's ability to continue in 

business. 

9. currently, there is no production at the Iselin 

Mine. 

Issues 

The issues are whether the Respondent violated 30 C.F.R. 

§ 77.1001 and, if so, whether that violation was of such a nature 

as could significantly and substantially contribute to the cause 

and affect of a mine safety or health hazard, and whether the 

alleged violation was the result of the Respondent's unwarrantable 

1080 
failure. If section 77.1001, supra, has been violated, it will be 

necessary to determine the appropriate civil penalty to be assessed 

in accordance· with section llOCi> of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et. ~·, (the "Act">. 

Citation 

Citation 2409178, issued on May 15, 1985, alleges a significant and substantial violation in that "loose hazardous material 

was not placed for a safe distance from the ·top of the highwall 

there was a piece of rock 10 feet long, 5 and 1/2 feet wide, and 

8 to 12 inches thick that had not been removed." 

Regulation 

30 C.F.R. § 77.1001, as pertinent, provides as follows: 

"Loose hazardous material shall be stripped for a safe distance 

from the top of pit or high.walls •••• " 

Findings of Facts and Conclusions of Law 

I 

On May 15, 1985, Wendell A. ·Hill, MSHA Inspector, with over 

13 years of experience as an inspector, arri~ed at Respondent's 

Iselin Mine Ca surface mine) to make a complete inspection. While 

in the pit, Hill observed a rock overhanging, or jutting out from 

the top of the highwall. He estimated the size of the overhanging 

rock to be 6 feet long, 5 and 1/2 feet wide, and 8 to 10 inches 

thick. He told the two miners, who were working in the pit, to 

stay clear of the rock. He then proceeded to the top of the highwall to make a closer examination of the rock. He observed a crack 

2 or 3 feet from the tip of the rock. He testified that there was 

no dirt or other material on top of the rock that was jutting ·out. 

Hill described the rock as sand rock and estimated its weight to be 

more than a ton. Hill brought the rock to the attention of the 

Respondent's President, Harold Altmire, and indicated that it 

should be taken down. Altmire agreed to cooperate, and made a road 

to the top of the highwall so that a backhoe could be driven there 

to remove the rock. Jay Altmire, a miner employed by Respondent, 

took the backhoe to the top of the highwall to remove the rock. 

Hill testified that he stood off to the side approximately 6 feet 

from the highwall when the.backhoe was removing the rock. It was 

further his testimony.that no dirt had to be removed from the top 

of the rock and that it was only necessary to remove soil from 

behind the rock. He further stated that when the bucket of the 

backhoe initially touched the back of the rock, which was lying on 

solid ground, the tip fell off. He estimated that it took approximately 30 seconds for the backhoe to dislodge and push the rock 

1081 
down the nighwall. When Hill returned to the pit, 

large pieces of rock that had fallen down as being 

and 1/2 feet wide, and 8 to 10 inches thick, and 3 

feet long, ·and 8,to 12 inches thick respectively. 

that the latter rock was the piece that had broken 

bucket of the backhoe touched the rock. 

he measured two 

6 feet long, 5 

feet wide, 4 

He indicated 

off when the 

Hill offered.his opinion that prior to its removal the rock 

was loose as it was overhanging the highwall and there were no 

rocks on top of it. He also opined that it could have been 

shaken loose by vibrations from equipment present at the mine or 

from thunderstorms. He also testified, in essence, that rain 

could have washed out the dirt around the rock and caused it to 

fall. 

Harold Altmire, who has over 25 years experience running 

open pit mining operation&, testified that the rock at issue had 

been in the same position for about 5 or 6 days prior to May·lS, 

1985. He stated, in contrast to Hill, that when he saw the rock 

during a preshift examination on May 15, 1985, he was about 12 

feet away and did not see any cracks in it. He testified that 

when he observed the rock from the pit that it was not extended 

over the edge of the pit. He also said that there was rock, 

soil, dust, and clay on top of the rock in question and that in 

addition it was covered by another rock. All these observations 

were corroborated by Jay Altmire, who further testified, in contrast to Hill, that the latter was not present when he operated 

the backhoe, and that it took him (Jay Altmire) approximately 4 

minutes to remove the dirt from the rock and push it off the highwall. Harold Altmire also testified that after Hill told him to 

remove the rock, the latter drove up the haul road and returned 

after the rocks were removed. Jay Altmire testified that about a 

week prior to May 15, his brother tried to remove the rock with a 

dozer and could not. Harold Altmire testified that in his 

opinion the rock was not in any danger of falling. He said that 

if he thought there was any danger qf the rock falling, that he 

would have removed it as he would not have wanted to cause any 

injury to his two sons who·were the only miners working below in 

the pit. 

Harold Altmire's testimony with regard to the condition of 

the rock was corroborated by the testimony of his son Jay. The 

latter's testimony that Hill was not present when he (Jay Altmire) 

removed the rock finds some corroboration in the testimony of 

Harold Altmire. However, I have adopted that version testified to 

by Hill. There was no motive adduced which would tend to impeach 

the credibility of Hill's testimony. On the other hand, the 

father-son relationship between Respondent's only two witnesses, 

tends, to some extent, to dilute the corroborative nature of their 

testimony. Moreover, the veracity of Hill's testimony is but1082 
tressed by the existence of contemporaneous notes that he made of 

his inspection. In a note, which, according to his testimony, was 

written when he observed the rock from the pit, he described the 

rock as being 6 feet long, 5 and 1/2 feet in width, and 8 to 12 

inches thick, and being "at top of highwall edge" (emphasis added). 

(Government Exhibit 2, page 5.) Also, on pages 8-9, of Government 

Exhibit 2, there are contemporaneous statements by Hill that "once 

the backhoe was in place at the top of the highwall the piece of 

crack 3 feet wide by 4 feet by 8 to 12 inches thick broke off and 

rolled into the pit." Page 7, of Government Exhibit 2, contains 

a contemporaneous statement that it took the backhoe 30 seconds 

to move the rock.· Also, I find Hill's description of the rock 

more reliable. When he observed it on May 15, from the top of 

the highwall, he was only 6 feet from the rock and examined it 

specifically as he was apparently concerned about its condition 

when he had observed it from the pit. In contrast, although 

Harold Altmire had seen the rock prior to May 15, when he saw it 

on that date he was 12 feet away, and observed it in the course 

of his general examination. Inasmuch as his attention had not 

been specifically drawn to the rock, in contrast to Hill, it is 

concluded that Altmire's examination of the rock on May 15 was 

not as thorough as that of Hill's. 

Accordingly, based on the testimony of Hill, I conclude that 

on May 15, 1985, there was a portion of rock, approximately 6 

feet long, 5 and 1/2 feet wide, and 8 to 12 inches thick, with a 

crack in the tip, that was hanging over the top of the highwall. 

I also conclude, based on the testimony of Hill, that there were 

no rocks or other material on top of this portion of the rock. 

Based upon these conditions, I conclude that the rock was "loose" 

and was within the purview of section 77.1001, supra. In reaching 

this conclusion I took into account the plain meaning of the term 

"loose" as defin~d in Webster's New Collegiate Dictionary as 

follows: "la: not rigidly fastened or securely attached b(l) : 

having worked partly free from attachments •••• " 

Although Harold Altmire indicated that, in his opinion, the 

rock was safe, he did not specifically rebut any of Hill's 

opinions that the rock could have been shaken loose by vibrations, 

o~ washed out by rain ~ater~ Accordingly, I find that the rock in 

question constituted a "hazardous" material within the purview of 

section 77.1001, supra. This conclusion is further buttressed by 

Hill's testimony, which I previously adopted, that the rock had a 

crack in it, and when initially touched by the bucket of the backhoe, resulted in the tip breaking off and falling down to the pit. 

Thus, I find that section 77.1001, supra, has been violated. 

II 

Althorigh Respondent did not contest the citation herein within 30 days, I find good cause to excuse Respondent, based upon 

the testimony for Altmire, that when the section 104Cd)(l) order 

1083 
was terminated on May 15, 1985, he assumed that the matter had 

been resolved. Petitioner has not ~lleged that it has suffered 

any legal prejud,ice in Respondent's being allowed to present 

evidence on the issues of "significant and substantial" and 

"unwarrantable failure." In these circumstances, I find 29 C.F.R. 

§ 2700.22 to be controlling, in that the Respondent should not be 

precluded from challenging the findings, in the citation, of 

"significant and substantial" and "unwarrantable failure." Accordingly, I deny Petitioner's motion to disallow Respondent from 

introducing evidence on the issues of "significant and substantial" 

and "unwarrantable failure." 

III 

Respondent has argued.that, considering the testimony of its 

witnesses, there is no basis for a finding of "significant and 

substantial." However, applying the criteria set forth by the 

Commission in Mathies Coal Company, 6 FMSHRC 1 (January 1984), I 

find, based upon the testimony of Hill, that I found reliable, 

that section 77.1001, supra, has been violated and that the violation herein constituted a discrete safety hazard. Furthermore, 

concerning the dimensions of the rock, and its characterization 

as sand rock, as testified to by Hill, and considering that this 

rock has a weight of about 150 pounds per cubic foot, as indicated 

by Government Exhibit 4, page 18, I conclude that there was a 

reasonable likelihood that in the event of the rock falling there 

would be an injury, of a reasonably serious nature, to either of 

the two miners, who were working in the area. In this connection, 

I note the testimony of Jay Altmire that he· was working throughout 

the area of the pit unprotected, and it was the uncontradicted 

testimony of Hill that rock falling down the highwall into the pit 

could have bounced through the window of the equipment being 

operated by John Altmire causing serious _injury. Accordingly, 

based on the above, I conclude that the nature of the violation 

herein was "significant and substantial." 

IV 

Respondent has argued that any alleged violation was not due 

to its "unwarrantable failure", as Altmire testified that a State 

Inspector, who inspected the subject mine on May 10, 1985, did 

not mention the hazard of the rock. Nor did the latter cite 

Respondent for the alleged condition. I did not place much weight 

on the conclusions of the inspector, a person who did not testify. 

Further, the written State Inspection Report, Respondent's Exhibit 

2, does not indicate that the subject rock was specifically 

examined. 

1084 
In essence, it was the testimony of bolh Harold Altmire and 

Jay Altmire that they were aware of the existence of the rock 

prior to May 15. Harold Altmire even saw the rock when he made 

his preshift examination on May 15, 1985. Accordingly, I conclude based, on the testimony of Hill, that a close examination 

of the rock by either of Respondent's witnesses, as performed by 

Hill, would have revealed a crack in the rock and the fact that 

the rock was hanging over the highwall. Thus, I conclude that 

the violation herein resulted from Respondent's "unwarrantable 

failure." 

Having considered the criteria in section 110 of the Act, 

supra, and considering the Respondent's high degree of negligence 

and the seriousness of the violation, I conclude that the penalty 

of $500, as proposed by Petitioner, is appropriate. 

ORDER 

It is ORDERED that Respondent pay the sum of $500, within 30 

days of the date of this decision, as a civil penalty for the 

violation found herein. 

Distribution: 

£~ Avram Weisberger ~ 

Administrative Law Judge 

B. Anne Gwynn, Esq., Office of the Solicitor, U. S. Department of 

Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Donald P. Tarosky, Esq., 126 North Maple Avenue, Greensburg, PA 

15601 (Certified Mail) 

dcp 

1085 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

• .Petitioner 

v. 

EMKO CORPORATION, 

Respondent 

June 10, 1987 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 87-42-M 

A. C. No~ 42-00149-05502 P9N 

Kennecott Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

In response to the Disapproval of Settlement and Order to 

Submit Information dated May 6, 1987, the parties have now submitted additional information to justify the proposed settlement 

of Order No. 2644520A. The penalty was originally assessed at 

$300 and the proposed settlement is for $150. 

In the joint motion to approve settlements dated April 4, 

1987, the parties represented that the 50% reduction in the 

originally assessed amount was justified because "negligence 

[was] less than originally assessed." Because no reasons were 

given to support this representation, the motion was deni~d and 

the parties were ordered to submit additional information. 

The operator's attorney now advises that the operator had in 

effect a safety manual and a policy prohibiting the subject 

activity. In addition, she states that affidavits of the individuals involved indicate that despite the violation they were in 

fact, attempting to perfo~m the construction in a safer manner 

than may otherwise have occur.red. 

The Solicitor represents that letter from the operator's 

attorney contains the factual basis for their decision to reduce 

the penalty. 

It appears that reduction in the negligence factor is warranted under applicable Commission precedent. Southern Ohio Coal 

Company, 4 FMSHRC 1459 (1982). However, the operator must be 

aware that it has a duty not only to have a safety policy, but to 

enforce it through appropriate measures including supervision and 

training. 

In light of the foregoing I approve the recommended 

settlement. 

1086 
With respect to the three other violations involved in this 

case, the Solicitor has moved to vacate Order No. 2644520B and 

the operator has agreed to pay the original assessments of $300 

each for Order Nos. 2644520C and 2644520D. The April 4, 1987, 

motion to approve settlements addressed these violations in light 

of the six statutory criteria set forth in section llO(i) of the 

Federal Mine Safety and Health Act of 1977. I accept these 

recommended settlements. 

Accordingly, the motion to approve settlements is GRANTED 

and the operator is ORDERED TO PAY $750 within 30 days of the 

date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U. S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

Thomas Mascolino, Esq., Counsel, Trial Litigation, Office of the 

Solicitor, U. S. Department of Labor, Suite 400, 4015 Wilson 

Boulevard, Arlington, VA 22203 (Certified Mail) 

Lynn B. Larsen, Esq., Larsen & Wilkins, 500 Kennecott Building, 

10 East South Temple, Salt Lake City, UT 84133 (Certified Mail) 

Mr. Harry J. Lang, 1919 West North Temple, Salt Lake City, UT 

84122 (Certified Mail) 

I gl 

1087 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

METTIKI COAL CORPORATION, 

. Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

METTIKI COAL CORPORATION, 

Respondent 

JIJN 111987 

. . 

. . 

. . 

. . 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. YORK 87-1-R 

Order No. 2701331; 9/10/86 

Docket No. YORK 87-2-R 

Order No. 2701332; 9/10/86 

Docket No. YORK 87-3-R 

Order No. 2701333; 9/11/86 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 87-5 

A. C. No. 18-00621-03568 

: "A" Mine 

DECISION 

Appearances: Susan Chetlin, Esq., Crowell & Moring, Washington, 

DC, for Mettiki Coal Corporation; 

Edward Fitch, Esq., Office of the Solicitor, u. s. 

Department of Labor, Arlington, Virginia for the 

Secretary of Labor. 

Before: Judge Melick 

These consolidated cases are before me under Section 105Cd) 

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

§ 801 et. seq., the "Act," to challenge three withdrawal orders 

issued by the Secretary of Labor under Section 104Cd)(2) of the 

Act and for review of civil penalties proposed by the Secretary 

for the violations alleged therein. ~/ 

1/ Section 104Cd) of the Act reads as follows: 

"Cl) 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 

1088 
Order Number 2701331 alleges as follows: 

"In the A-portal in the designated haulage number 

4 intake air entry beginning about 100 feet inby the 

tunnel lining and extending inby to break number 10 

where 7 x 9 inch wooden cross-bars had been installed 

for additional roof supports there were no indications 

that the operator of this mine made an effort to 

promptly reset the dislodged leggin·g that had been 

dislodged by diesel powered equipment (rubber tire) one 

leg under one end of 12 of the bars has been dislodged 

and both leg·s under both ends of 9 of the bars had been 

dislodged." 

The Secretary alleges that these facts constitute a 

violation of that part of the standard at 30 C.F.R. § 75.202 

fn. 1 (Continued) 

if he also finds that, while the conditions created by such 

violation do not cause imminent danger, such violation is of such 

nature a.s could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health hazard, 

and if he finds such violation to be caused by an unwarrantable 

failure of such operator to comply with such mandatory health or 

safety standards, he shall include such finding in any citation 

given to the operator under this Act. If, during the same . 

inspection or any subsequent inspection of such mine within 90 

days after the issuance of such citation, an authorized 

representative of the Secretary finds another violation of any 

mandatory health or safety standard and finds such violation to 

be also caused by an unwarrantable failure of such operator to so 

comply, he shall forthwith issue an order requiring the operator 

to cause all persons in the area affected by such violation, 

except those persons referred to in subsection (c) to be 

withdrawn from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary determines 

that such violation has been abated. (2) If a withdrawal order 

with respect to any area in a coal or other mine has been issued 

pursuant to paragraph Cl), a withdrawal order shall promptly be 

issued by an authorized representative of the Secretary who finds 

upon any subsequent inspection the existence in such mine of 

violations similar to those that resulted in the issuance of the 

withdrawal order under paragraph (1) until such time as an 

inspection of such mine discloses no similar violations. 

Following an inspection of such mine which discloses no similar 

violations, the provisions of paragraph Cl) shall again be 

applicable to that mine. 

1089 
(entitled "Roof Support Materials") which reads as follows: 

"Except in the case of recovery work, supports knocked.out shall 

be replaced promptly." 

The Mettiki Coal Corporation CMettiki) does not dispute the 

factual allegations set forth in the order, but maintains that 

those facts do not constitute a violation of the cited standard 

since the cited "leggings" that had been dislodged were not in 

fact performing a roof support function. Mettiki claims that, 

consistent with that part of the cited standard requiring "safety 

posts, jacks, or other devices" be used as temporary supports to 

hold crossbars in place during installation, once the crossbars 

at issue herein were permanently installed with roof bolts there 

was no continuing obligation to keep the legs in place. Finally, 

Mettiki argues that while the regulation admittedly requires that 

any device performing an active support function must be promptly 

replaced if dislodged, the legs cited herein were not performing 

such a function. 

According to Blucher Allison, Mettiki's chief engineer, Ca 

graduate mining engineer with 41 years experience in the mining 

industry) Mettiki was, at the time the order was issued, in full 

compliance with its roof control plan. It is a "full roof bolting 

plan" with roof bolts as the primary means of support. According 

to Allison the cited legs had been placed under the crossbars as 

temporary support in compliance with Item Number 7 of its roofcontrol plan (Exhibit C-5) while the crossbars were bolted into 

the roof. The legs were not subsequently removed after the 

crossbars were affixed with roof bolts because it was not cost 

effective to do so. 

The crossbars were bolted on 2 foot centers with two 6 foot 

resin-grouted bolts and one 16 foot combination bolt. Allison 

observed that once the crossbar was bolted into position it 

formed a laminated beam of strata by putting the roof into 

compression and the legs.then no longer contributed to the roof 

support. Indeed Allison opined that should the roof bolts ever 

fail the legs would fail too. Accordingly, he also believed that 

there was no likelihood of a roof fall resulting from the removal 

of the legs alone. Allison also observed that the roof control 

plan does not require legs under crossbars except when timbering 

is used as the sole means of roof support. {See Item ~umber 10 

of the Roof Control Plan, Exhibit C-5). 

MSHA Inspector Phillip Wilt disagreed with Allison and 

maintained that the legs were in fact "supports" within the 

meaning of the cited standard. It is apparent however that 

Inspector Wilt was not familiar with the support system being 

used by Mettiki in the cited entry. Wilt did not know the length 

of the roof bolts being used and apparently thought that 

1090 
timbering was the primary method of roof support. Under such a 

system it is essential that the crossbars be supported by legs 

(Tr.42). Indeed Wilt thought that the roof bolts here were used 

only to hold the crossbars in position to protect workers should 

the legs become dislodged. Under the circumstances I am not 

persuaded by his testimony. I am convinced by the expert 

testimony of Mining Engineer Allison that the displaced legs were 

not in fact permanent "roof supports" within the meaning of the 

cited standard. The fact that temporary supports have been left 

in position does not alone make those supports a part of the 

permanent support system. Under all the circumstances there was 

no violation and ·the order must therefore be vacated. 

Order Nos. 2701332 and 2701333 allege violations of the 

standard at 30 C.F.R. § 75.305 and more particularly that part of 

the standard that reads as follows: 

In addition to the preshift and daily examinations 

required by this Subpart D, examinations for hazardous 

conditions, including tests for methane, and for 

compliance with the mandatory health or safety 

standards, shall be made at least once each week by a 

certified person designated by the operator in ••• at 

least one entry of each intake and return air course in 

its entirety • • • • The person making such a 

examinations and tests shall place his initials and 

date and time at the places examined, and if any 

hazardous conditions are found, such conditions shall 

be reported to the opera tor ·promptly • • • • A record 

of these examinations, tests, and actions taken shall 

be recorded in ink or indelible pencil in a book, 

approved by the Secretary, kept for such purpose in an 

area on the surface of the mine, chosen by the mine 

operator, tG minimize the danger of destruction by fire 

or other hazard, and the record shall be open for 

inspection by interested persons. 

Order Number 2701332 alleges as follows: 

In the A-portal beginning at the entrance of the Number 

4 intake designated haulage entry on the surface and 

extending inby to the east mains track haulage entry 

there are no initials, dates, and time to indicate that 

this entry is being examined at least once each week by 

a certified person for hazardous condittons, there are 

date boards posted at various locations in this entry 

and there were initials and dates on three of the 

boar1s. One was 10/2/85, one was 12/12/85 and one was 

5/28/86 indicating that the 5/28/86 date could have 

been the last date this entry was properly examined by 

1091 
a certified person in its entirety, the distance of the 

affected area was about 6000 feet. 

Order Number 2701333 alleges as follows: 

This inspection began at 10:00 a.m. at Break Number 9, 

survey station number BR-95, and extended inby a 

distance of 3200 feet to survey station number A-827 in 

the Number 1 Skipper Return Air Entry and there were no 

initials, dates, or times throughout the entry to 

indicate that this entry was being examined in its 

entirety by a certified official at least once each 

week for hazardous conditions, including tests for 

methane. There were initials, date, and time 

indicating that the entry had been examined in its 

entirety by L. Slige~, certified official this date, 

9/11/86, prior to this inspection. But according to 

other initials and dates in various locations in the 

entry the last examination conducted prior to this 

date was 4/02/86, conducted by Alan Smith who was at 

that time mine foreman at this mine. 

Mettiki does not dispute the factual allegations contained 

in these two orders, and indeed, readily acknowledges that the 

cited entries were, in fact, not inspected under the cited 

standard. It nevertheless maintains that there was no violation 

of the standard because "at least one entry of each intake and 

return air course was examined in its entirety" in accordance 

with the standard. Mettiki points out that the standard requires 

a weekly examination of only one entry of ~ach intake and return 

air course, but does not require the examination of all entries 

of each intake and return air course. The Secretary maintains, 

on the other hand, that each of the cited entries in the above 

orders were separate and distinct "air courses" and did not 

constitute separate entries of the same air course. Accordingly 

the Secretary argues that the violation is proven as charged. 

It is undisputed that Metiki's "A" Mine is ventilated by an 

exhaust fan with the air entering the Number 4 and 5 entries and 

then proceeding to all areas of the mine. The SJtipper Number 1 

intake entry is ventilated with mixed air from both the Numbers 4 

and 5 entries. At the Number 9 crosscut some of this air 

separates into the main section through the Number 5 track entry 

(which was being examined in compliance with 30 C.F.R. § 75.305). 

The air from the Skipper Number 1 intake and the Number 5 track 

entry again merges at the Number 40 crosscut. Indeed the 

undisputed evidence shows that the air in the skipper entries 

mixes freely with that in the E-Mains. 
MSHA Supervisor Barry Ryan, opined that the Skipper Number 1 

intake entry constituted a separate air course and accordingly 

was subject to weekly inspections under the cited standard separate from the inspections performed in the Number 5 track entry. 

Ryan's opinion was however completely arbitrary and not based on 

any definition of the term "air course" in any relevant statute, 

regulation, MSHA policy, or industry past usage. Moreover the 

Secretary presented no evidence of any prior consistent enforcement under his proferred definition of the term "air course" that 

might have established that Mettiki was on notice regarding the 

secretary's interpretation. See Jim Walter Resources Inc. v. 

Secretary, 9 FMSHRC , Docket No. SE 85-36-R, et. al., 

May 29, 1987. To the contrary it is clear from the language of 

the regulation that each air course may consist of more than one 

entry. Mettiki's position herein is consistent with that· 

language. 

The Secretary simi~arly argues that with respect to Order 

Number 2701333, Mettiki's weekly examination of the Number 7 and 

Number 9 return escapeways was not sufficient because the Number 

3 Skipper Return Air Entry 2/ was a separate "air course" 

requiring a separate weekly-inspection under the cited standard. 

However, for the reasons previously stated I find no legal or 

evidentiary support for the Secretary's arbitrary definition of 

the term "air course." To the contrary I find that Mettiki was 

examining on a weekly basis "at least one entry of each •••• return 

air course in its entirety" and was therefore in compliance with 

the cited standard. 

Under the circumstances Order Nos. 2701332 and 2701333 must 

be vacated. 

2/ The entry at issue was cited in the Order at bar as the No. 1 

~kipper Return. Air Entry but the undisputed evidence shows tha~ 

it was actually the No. 3 Skipper Return Air Entry. The order at 

bar was never amended to correct this error but in light of the 

findings herein, that issue is now moot 

ORDER 

Order Nos. 2701331, 2701332, and 2701333 are 

contests of those Orders are GRANTED. Civil Penalt 

Docket Number YORK 87-5 is DISMISS 

1093 

CATED and the 

Proceeding 

Q . <...-. 

AA(,, t~ 
Distribution: 

Timothy Biddle, Esq., and Susan Chetlin, Esq., Crowell & Moring, 

1100 Connecticut Avenue, NW, Washington, DC 20036 (Certified 

Mail) 

Edwara H. Fitch, Esq., Office of the Solicitor, u. s. Department 

of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA 22203 

(Certified Mail) 

dcp 

1094 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

THE HELEN MINING COMP&~Y, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA'rION CMSHA), 

Petitioner 

v. 

THE HELEN MINING COMPANY, 

Respondent 

JUN 121987 

. . 

.. . 

. . 

DECIS!ON 

CONTEST PROCEEDING 

Docket No. PENN 86-94-R 

Order No. 2696214; 1/28/86 

Homer City Mine 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-181 

A. C. No. 36-00926-03634 

Homer City Mine 

Appearances: William T. Salzer, Esq, Office of the Solicitor, 

u. s. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary of Labor; 

Ronald B. Johnson, Esq., Wheeling, West Virginia, 

for the Helen Mining Company. 

Before: Judge Weisberger 

Statement of the Case 

In these proceedings, Helen Mining Company (Respondent) seeks 

ta contest a section 104Cd}(2} order issued on January 28, 1986. 

The Secretary (Petitioner) seeks a civil penalty for an alleged 

violation of 30 C.F.R. § 77.200. Pursuant to notice, these cases 

were heard in Pittsburgh, .Pennsylvania, on December 16 - 17, 1986, 

and February 2 - 3, 1987. William McClure, Roger Jordan, George 

Hazuza, Shirley Rine, and Robert Nelson, testified for the 

Petitioner. Josep Dunn, Victor Tagliati, and Lynn Harding 

testified for the Respondent. 

On February 26, 1987, in Pittsburgh, Pennsylvania, the 

Secretary took a deposition of Charles S. Battistoni. 

1095 
The Petitioner submitted its Proposed Findings of Fact and 

Memorandum on April 13, 1987, and the Respondent submitted its 

Proposed Findings of Fact and Posthearing Brief on April 21, 1987. 

Time was allowed for Reply Briefs to be submitted, and Respondent 

submitted its Reply Brief on May 29, 1987. Petitioner did not 

file any Reply Brief. 

On May 7, 1987, Petitioner flled a Motion for Decision and 

Order Approving Settlement to approve a settlement reached 

between the parties concerning order number 2696220. 

Stipulations 

1. The Helen Mining Company owns and operates the Homer 

City Mine and is subject to the jurisdiction of the Federal Coal 

Mine Safety and Health Act of 1977, Public Law 91-173, as amended 

by Public Law 95-164 (Act). 

2. The Administrative Law Judge has jurisdiction over this 

proceeding pursuant to section 105 of the 1977 Act. 

3. The subject order (number 2696214) and termination thereto were properly served by a duly authorized representative of 

the Secretary, William McClure. 

4. A copy of order number 2696214 (attached to the Petition 

for Assessment of Civil Penalty) is an authentic copy of the 

original citation. 

5. No intervening clean inspection within the meaning of 

the Act has been conducted at the Homer City Mine; consequently, 

the contestant is within the chain sequence of section 104(d) 

orders. 

6. The appropriateness of the penalty, if any, to the size 

of the coal operator's business sho~ld be determined based on the 

fact that the Homer City Mine had an annual production for 1985 

of 807,434 tons of coal and production to the third quarter of 

1986 of 617,250 tons of coal. 

7. At the time of the issuance of order number 2696214 by 

Inspector Bill McClure, 13 of 53 forepole pad extensions were not 

in contact with the mine roof along the H-Butt No. 4 shortwall 

panel of the Horner City Mine. 

8. At the time of the issuance of order number 2696214, the 

gap between the top of the forepole pad and the mine roof, at the 

13 shields in question, ranged from between 2 to 14 inches. 

1096 
Findings of Fact 

1. On January 28, 1986, 9:45 a.m., MSHA Resident Inspector 

William McClure conducted a quarterly inspection at the H-Butt 

No. 4 shortwall panel at the Homer City Mine owned by The Helen 

Mining Company. 

2. The shortwall method of mining utilizes a continuous 

mining machine which moves along the face of the shortwall panel 

and cuts a ten foot wide bloc~ of coal from the face. The length 

of the shortwall face at the H-Butt No. 4 panel was between 250 

and 300 feet. ~he shortwall system employs a mechanized roof 

support system - hydraulically powered shields, made by GullickDobson Ltd., that advance with the face. 

3. Support is provided by a pressure arch from the main 

canopy of the shield to the coal face. This causes pressure to 

be exerted in the face area. 

4. As the continuous miner makes its cut along the face, 

the individual shields on the headgate side of the panel are 

partially advanced into the void created by the miner's cut. As 

the shield is partially advanced, the forepole extension is 

extended towards the face in the area where coal has been removed. 

It takes approximately 2 hours.for the miner to complete a pass. 

5. The forepole pad component of the shield measures 48 

inches wide by 28 inches long. The forepole pad is hydraulically 

extended out from within the forward canopy of the shield towards 

the face for a distance of approximately 5 feet. The forepole is 

designed to support up to approximately 14 tons where it is 

against the roof. If it is not against the roof, there is uncertainty as to its support capacity if hit by material falling from 

the roof. 

6. The function of the forepole extension is to reduce the 

area of unsupported roof between the forward canopy tip and the 

face. (Tr. 98, 437: Deposition Tr. pp. 19-20.) It is not a 

critical area of a support (Tr. 440). 

7. After McClure observed that some of the forepole pads 

were not touching the roof, Mick Lloyd, a representative of the 

manufacturer, who was present, told him that the forepoles should 

be in contact with the roof. I adopted this testimony as it was 

corroborated by Robert G. Nelson, a supervising Coal Mine Safety 

Health Inspector for MSHA, who testified for Petitioner. Also I 

note that in a deposition taken on February 26, 1987, Charles s. 

Battistoni, a MSHA Mine Health Safety Specialist on roof control, 

in essence stated, that on February 5, 1986, at a meeting with 

Respondent's staff, Lloyd agreed that the canopy tips should be 

1097 
against the roof once the miner has cleared the shield. 

(Deposition Tr~ 20-21.) It is significant that this is reflected 

in notes taken by Battistoni on the day of the meeting 

(Deposition 9-12, 21). 

8. At the time of Inspector McClure's inspection, a void or 

caved area existed above three to four shields in the headgate 

entry where the operator had previously used cribbing ahd additional' roof bolts to provide roof support over these shields. 

According to McClure this indicated to him that there was a "bad 

roof" at the headpole entry and "approximately" into the coal 

face CTr. 104); The following day there were breaks and cracks 

observed over the shields in the immediate face area. (Tr. 506.) 

9. Four of the 13 forepoles were not in contact with the 

mine roof due to a cavity in the roof above the pad where the 

roof had fractured and had fallen. 

10. The 13 forepole pads not in contact with the roof were 

within 4 feet of the face. As a consequence of the cavity over 

two of the shields whose pads did not touch the roof, the area of 

the roof that was unsupported was approximately 8 feet by 3 feet. 

The remaining nine forepole pads were not in contact with the 

mine roof due to the fact that the continuous miner operator had 

cut too high into the mine roof. 

11. The continuous miner was cutting too deeply into the 

roof since January 7, 1986, the date of the installation of the 

miner, 3 weeks prior to the issuance of order number 2696214. 

This problem was due to poor mining practices and Respondent was 

aware of this problem. Failure to correct the gap created by the 

miner at the end of a pass led to a bigger gap during the next 

pass by the miner. 

12. Of the 13 forepole pads not in contact with the roof,· 

four were adjacent. . .. 13. Eight to 10 feet of mine roof extending out,by the face 

was unsupported due to the lack of contact between the 13 forepole pads and the mine roof. 

14. During a shift, five or six workers may travel underneath the forepole extensions to fulfill their work assignments. 

This finding is based upon the uncontradicted testimony of Roger 

Jordan, who works as a beltman for Respondent, and who serves as 

the Union's Safety Committee Man. He testified that every time 

he was at the face, at the shortwall section, he saw miners 

walking under the forepole pads. 

15. In this section of the mine, pot outs occur on a daily 

basis. 

1098 
16. Five or 6 of the 13 forepole pads not in contact with 

the roof, we~e approximately 2 inches below the roof. Contact 

with the roof could have been made by placing logging in the gap. 

This can be done from under the adjacent support. 

17. There was approximately a 6 inch gap between the roof 

and 3 or 4 of the forepole pads. .Contact with the roof could 

have been made by placing one crib block between the gap and the 

pad. 

18. There was approximately a 14 inch gap between the roof 

and 3 or 4 of the forepole pads. This gap could have been 

bridged by constructing cribbing. A worker constructing such 

cribbing would be exposed to unsupported roof. 

19. Respondent's approved roof control plan does not explicitly provide that the forepole pads be in contact with the roof. 

20. Prior to the issuance of the subject order, Respondent 

did not have any knowledge that a failure to maintain roof contact with the forepole pad, at a point no greater than 4 feet 

from the face, constituted a violation of the roof control plan. 

Regulatory Provision 

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

Each Operator shall undertake to carry out on a 

continuing 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 rqadways, travel ways, 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 

i~ 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. 

1099 
Approved Roof Control Plan 

Drawing No. 16{b) states as follows: 

*** 

3. The space in between the.shield canopy extensions 

and the coal face shall not exceed 4 feet. Where this 

spacing is exceeded, roof supports shall be installed 

not to exceed 4 foot spacing before· any work or travel 

is permitted in this unsupported area, except for the 

purpose of installing supports. 

Issues 

1. Whether the Respondent violated the approved roof cont: 

plan. 

2. Whether the approved roof control plan provided that tl 

forepole pads of the Gulick-Dobson shield be in contact with 

the roof. 

3. If the Respondent did not violate the roof control pla: 

whether it violated 30 C.F.R. § 75.200. 

4. If a violation of a regulatory provision or the approv, 

roof control plan occurred, was it of such a nature as could 

have significantly and substantially contributed to the cause a 

affect of a safety hazard. 

5. If a violation of a regulatory provision or the approv 

roof control plan occurred, whether such violation was caused b 

Respondent's unwarrantable failure. 

Discussion and conclusions of Law 

Based upon the Parties' stipulations, I conclude that the 

Helen Mining Company is subject to the jurisdiction of the 

Federal Coal Mine Safety and Health Act of 1977, and that I hav 

jurisdiction over this proceeding. 

I 

On January 28, 1986, when Federal Mine Inspector William 

McClure inspected the shortwall section of Respondent's Homer 

City Mine, 13 of 53 forepole pad extensions of the Gulick-Dobso 

shields, which were positioned within 4 feet of the face, were 

not in contact with the roof. McClure issued a 104Cd)(2) order 

predicated upon the language of paragraph 3 of Drawing Number 

16(b) of the approved roof control plan. However, a plain read 

1100 
of paragraph 3, supra, reveals that it does not specifically 

require the forepole pads to be in contact with the roof at a 

point no more than 4 feet from the face. Furthermore, the second 

sentence of paragraph 3, supra, requires roof supports before any 

travel is permitted in the area "where this spacing is exceeded." 

The spacing that is referred to, clearly relates back to the first 

sentence of paragraph 3, which sets forth a maximum of 4 feet 

between the shield's canopy extensions, (the forepole pads) and 

the coal face. Inasmuch as all the forepole extension pads in 

question were not more than 4 £eet from the face, it wou.ld appear 

that the installation of roof supports, pursuant to the second 

sentence of paragraph 3, supra, is not required. 

Petitioner argues, in essence, that contact with the roof is 

the "requisite element of roof support." Although the recotd, in 

general, appears to oupport this proposition, it must be concluded, due to the language of paragraph 3, supra, that the roof 

control plan did not specifically require the forepole pads to be 

in contract with the roof no more than 4 feet from the face. 

Furthermore, Petitioner has failed to establish that it was 

the clear intent of the parties, for the approved roof control 

plan to require that the forepole pads be in contact with the 

roof. On the other hand, in t~is connection, it is significant 

that Lynn Harding, who had served as Respondent's assistant 

safety director and safety director since 1976, has indicated, in 

essence, that the approved roof control plan for the shortwall 

operation using shields similar to those involved in the instant 

case, has been in effect for over 10 years and that MSHA never 

issued a citation or a safe-guard or an order pertaining to gaps 

between the forepole pads and the roof. This would tend to have 

some probative value with regard to the intent of MSHA when the 

language contained in paragraph 3, supra, was drafted. Joseph 

Dunn, Respondent's general mine foreman, indicated that he wrote 

the shortwall roof control plan 10 years ago, and that it was ·not 

his intent, in preparing the plan, that the forepole had to be in 

contact with the roof. 

Inasmuch as a roof control plan, once approved, must be 

followed in the same fashion as a mandatory regulatory standard; 

it is of critical importance that the plan be unambiguous as to 

the requirements imposed upon the mine operator. I thus find 

that inasmuch as paragraph 3, supra, does not specifically mandate roof supports where the f orepole pad extension is not in 

contact with the roof, the order issued herein cannot be 

predicated upon a violation of the approved roof control plan. 

II 

At the hearing, Counsel were asked to brief the issue as to 

whether, assuming a finding that the roof control plan was not 

violated, there still could.be found a violation of a mandatory 

1101 
regulatory standard. The Respondent, in essence, argues that 

because the inspector relied on the requirements of the roof 

control plah, this case must be decided upon a consideration of 

the requirements of that plan. In essence, Respondent argues 

that if it be found that it has not violated its roof control 

plan, then there should not be any consideration of whether a 

violation of the regulatory stand~rd, section 75.200, supra, has 

occur~ed. In support of its position, Respondent relies upon the 

Commission's decision of Secretary v. U. S. Steel Mining Company, 

7 FMSHRC 1125 (August 1985). In its decision, the Commission, in7 FMSHRC, supra, at 1133, vacated the conclusion of the Judge, 

who originally heard the case, that section 75.200, supra, was 

violated even though the roof control plan was not. The 

Commission's action in this regard was based upon its remand to 

the Judge to make further specific findings with regard to the 

requirements of the roof control plan in question. As such, the 

Commission did not find,·as a matter of law, that once it h~s 

been determined that a roof control plan has not been violated, 

that an inquiry may not be made as to whether section 75.200, 

supra, was violated. The Commission's usual practice, upon 

annunciating a rule of law, is to present a thorough discussion 

of the legal issues· involved along with citations to pertinent 

authorities. In contrast, in U.S. Steel Mining Co., supra, the 

Commission limited its decision to a discussion of the need to 

ascertain the requirements of the roof control plan in question. 

It did not present any discussion as to whether, as a matter of 

law, a violation of section 75.200, supra, can occur absent a 

violation of a specific roof control plan. 

In contrast, in cases before the Interior Board of Mine 

Operations Appeals,.the Board had held that it is not necessary to 

provide a violation of a roof control plan to sustain the violation 

where the roof is not adequately supported. (See North American 

Coal Corp., IBMA Docket No. 73-42, 3 IBMA 93 (April 17, 1979); 

Ziegler Coal Co., Docket No. 73-29, 2 IBMA 216 (September 18, · 

1973).) It is significant to note that in Rushton Mining Company, 

IBMA Docket No. 77-19, 8·IBMA 14 (June 23, 1977), the Board held 

that the roof control plan is the minimum and it do~s not absolve 

the operator of the responsibility for additional supports. These 

cases have been followed by Commission Judges in cases cited by the 

Petitioner (See, Secretary v. CF&I Steel Corporation, 3 FMSHRC 1870 

(July 1981); Secretary v. Leslie Coal Mining Company, 3 FMSHRC 1648 

(June 1981). 

Furthermore, the Federal Mine Safety and Health Act of 1977, 

supra, is a manifestation of the Congressional concern to enact 

legislation that would have the effect of protecting miners from 

the hazards of roof falls (see Secretary of Labor v. Consolidation 

Coal Company, 6 FMSHRC 34,37 n.4 (January 1984)). Thus to 

preclude an inquiry as to whether the statuary standard, section 

75.200, supra, has been violated strictly on the basis that the 

Inspector's order was predicated upon a violation of the roof 

1102 
control plan alone, would appear thwart Congressional intent to 

have miners protected from the hazards of roof falls. 

Accordingly, even though the Respondent herein did not violate 

the roof control plan, an inquiry must be had as to whether the 

regulatory provision, section 75.200, supra, has been violated. 

As pertinent, section 75.200, supra, provides that " •••• 

the roof • • • • of all • • • • working places shall be supported 

or otherwise controlled adequately to protect persons from falls 

of the roof or ribs." In Secretary v. Canon Coal Company, 

9 FMSHRC 667 (April 1987), the Commission set forth the test to 

be used in determining whether section 75.200, supra, has been 

violated. The Commission, Secretary of Labor v. Canon Coal 

Company, supra, at 668 stated as follows: 

Questions of liability for alleged violations of this 

broad aspect of this standard are to be resolved by 

reference to whether a reasonably prudent person, 

familiar with the mining industry and the protective 

purpose of the· standard, would have recognized the 

hazardous condition that the standard seeks to prevent. 

c.f. Ozark-Mahoning Co., 8 FMSHRC 190, 191-92 (February 

1986); Great Western Electric Co., 5 FMSHRC 840, 841-42 

(May 1983); U.S. Steel Corp., 5 FMSHRC 35 (January 

1983); Alabama By-Products Corp., 4 FMSHRC 2128, 2129 

(December 1982). Specifically, the adequacy of particular roof support or other control must be measured 

against the test of whether the support or control is 

what a reasonably prudent p~rson, familiar with the 

mining industry and protective purpose of the standard, 

would have provided in order to meet the protection 

intended by the standard. We emphasize that the reasonably prudent person test contemplates an objective 

not subjective -- analysis of all the surrounding 

circumstances, factors, and considerations bearing on 

the inqufry in issue. See,~., Great Western, supra, 

5 FMSHRC at 842-43; U.S. Steel, supra, 5 FMSHRC at 5-6. 

Respondent's position, in essence, is that the manufacturer 

of the Gulick-Dobson shield never advised it that the forepole 

pad has to be in contact with the roof, that MSHA had never cited 

ii in the past for not having f orepole pads in contact with the 

roof, and that MSHA had never required it in the past to have the 

pads in contact with the roof. Respondent also relies upon testimony from Victor Tagliati; its shortwall coordinator, as well as 

from Dunn and Harding to the effect that the forepole pad does 

not have any support function and just serves as overhead protection from falling material. Also relied upon is Dunn's testimony 

that the f orepole pads provide equivalent support whether they 

are in contact with the roof or 14 inches below the roof. 

1103 
I do not find Respondent's arguments to be persuasive. Dunn 

and Tagliati testified, in essence, that from July 1985, when the 

Gulick-Dobson shields were installed until January 28, 1986, when 

the citation was issued, representatives from the manufacturer of 

the shields were at the mine on a daily basis. They each testified 

that they were never told by the manufacturer's representatives 

that it was not proper not to have the forepole pads in contact 

with the roof. However, I accepted the testimony of McClure, as 

corroborated by Nelson, that after he observed, on January 28, 

1986, that some of the forepole pads were not touching the roof, 

the manufacturer's representative, Mick Lloyd told him the forepole 

pads should be in contact with the roof. I therefore, conclude 

that in fact Lloyd made this statement to McClure. It thus might 

be inf erred that since Lloyd told McClure that the f orepole pads 

should be in contact with the roof, it is likely that Lloyd made 

the same statement on other occasions to Respondent's employees. 

Tagliati, Dunn, and Harding, all testified, in essence, that 

the forepole pad does not have any support function and its purpose is for overhead protection from rocks. While the record is 

clear that in creating a pressure arch the main support comes 

from the canopy portion of the shield, the forepole pads are, 

nonetheless, designed to support 13.9 tons. Dunn testified that 

the forepole pad does not have to come in contact with the roof 

and that it provides equivalent support if it is in contact with 

the roof or if it is 14 inches below. On the other hand, George 

Hazuzza, who presently reviews roof control plans on behalf of 

MSHA, testified, in essence, that although the forepole pad can 

support, in a static situation, approximately 13.9 tons, it is 

uncertain how much weight the forepole pad can support if it is 

not'in contact with the roof, as it would depend upon the size 

and weight of material falling from the roof and the amount of 

distance it would fall from the roof to the forepole pad. I find 

this testimony of Hazuzza to be well reasoned, and I adopt it. 

Hence, it is clear that a reasonably prudent person familiar with 

the mining industry would have recognized the hazard created in 

not having the forepole pad placed up against the roof. This is 

especially true in the case of the four adjacent shields, whose 

forepole pads were not in contact with the roof, leaving a unsupported area of approximately 160 square feet. 

I have taken in to account the testimony of Tagliati that a 

14 inch gap, which existed between 3 or 4 of the forepole pads and 

the roof, could be bridged by constructing cribbing. Respondent 

argues that the individual constructing such cribbing would be 

exposed to an unsupported roof. Inspector McClure was of the opinion that a unsupported roof is a greater hazard than the exposure 

to an individual to an unsupported roof while constructing cribbing to support the roof. I adopt the opinion of McClure. I find 

1104 
that a substantial hazard to exist as the gap between the roof and 

the forepole pad, can lead to unsupported roof being exposed for 

the duration.of a pass by the miner which can take up to 2 hours. 

Based on all the above, I conclude that Respondent violated 

section 75.200, supra. 

III 

Petitioner has, in essence, alleged that the nature of 

Respondent's violations of sect1on 75.200, supra, fall within the 

purview of section 104(d)(l) of the Act, as they " ••• could significantly and substantially contribute to the cause and effect of a 

coal .•• mine safety or health hazard •••• " (section 104Cd>, 

supra) In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the · 

Commission set forth the elements of a "significant and substantial" violation as follows: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: Cl) 

the underlying violation of a mandatory safety standard: (2) a discrete safety hazard--that is, a measure 

of danger to safety--contributed to by the violation: 

(3) a reasonable likelihood that the hazard contributed 

to will result in an injury: and, (4) ~ reasonabl~ 

likelihood that the injury in question will be of a 

reasonably serious nature. (6 FMSHRC, supra, at 3-4.) 

As discussed above, infra, I have already found that a mandatory safety standard, i.e., 30 C.F.R. § 75.200, has been violated. 

Accordingly, the first element of Mathies, supra, has been 

satisfied. 

The evidence establishes that in the Respondent's shortwall 

section the Gulick-Dobson shields create a pressure arch which 

causes pressure on the face. According to the uncontradicted 

testimony of McClure, at the date of inspection, there was a 

caved-in area above three or four shields in the headgate entry 

which indicated to him that there was "ba~ roof" at that point 

and also "approximately" into the face (Tr. 104). Dunn and 

Tagliati testified that the roof condition, on the section in 

question on the date the citation was issued, was "good." However, it is noted that Tagliati indicated in the area in which 

the citation occurred there are pot outs on a daily basis and 

there could have been pot outs on the day of the order. Indeed, 

it was the uncontradicted testimony of Shirley Rine, a MSHA Coal 

Mine Inspector assigned to roof control duties, that the day 

after the citation was issued, he observed "cracks and breaks 

over top (sic.) shield right into the immediate face area." 

(Tr. 506.) Further, it is significant to note that four adjacent 

1105 
shields had forepole pads not in contact with the roof, thus 

leaving an area of approximately 160 feet unsupported. Moreover, 

this area could have remained unsupported for the duration of a 

pass which takes approximately 2 hours. In addition, I noted the 

fact that 3 or 4 forepole pads were 14 inches below the roof, 

thus creating uncertainty as to the weight the pad would support 

if hit by falling rock. Taking a11 these factors into account, I 

conclude that a discrete safety hazard was created with.a reasonable likelihood that this hazard will result in injury. It 

further is clear, as established by all witnesses to whom the 

question was posed, that rock falling from an unsupported roof 

could seriously. injure or kill a person below. In this connection, I conclude, based upon the credible testimony of Jordan and 

McClure, that as many as five or six workers during the shift may 

travel underneath the forepole extensions to fulfill their work 

assignments (see finding 14). I therefore conclude that the 

violation 30 C.F.R. § 75.200 was sμch a ~ature as could significantly and substantially contribute to the cause and affect of a 

coal mine safety hazard. 

IV 

It is the Secretary's position that the violation herein 

constitutes a "unwarrantable failure" to comply to the provisions 

of 30 C.F.R § 75.200. The Commission, in United States Steel 

Corporation v. Secretary of Labor, 6 FMSHRC 1423 (June 1984), 

held that: 

•••• an unwarrantable failure to comply may be proved by 

a showing that the violative condition or practice was 

not corrected or remedied prior to the issuance of a 

citation order because of indifference, willful intent, 

or a serious lack of reasonable care. (United States 

Steel Corporation v. Secretary of Labor, 6 FMSHRC, 

supra, at 1437). 

Petitioner argues, irl·essence, that the gap between the forepole pad and the roof .was caused by the Respondent's' poor mining 

practices in not handling the remote control continuous miner 

properly. Petitioner also argues that in preshift inspections it 

should have been observed that 13 forepole pads were not in contact with the roof. Although the violative condition was caused 

by Respondent's poor mining practices and was readily observable 

at the date the citation was issued, I find that the Petitioner 

has not established. that the reason for the Respondent not remedying the violative condition was due either indifference, willful 

intent, or serious lack of reasonable care. The critical issue 

is not what caused the violative condition, but rather the operator's motive in not correcting the violative condition. It is 

noted, in this connection, that the roof control plan did not 

1106 
explicitly require the forepole pads to be in contact with the 

roof. Further, according to the uncontradicted testimony of 

Dunn, Tagliati, and Harding, for 10 years prior to the date the 

citation was issued, MSHA had never written a citation for forepole pads not being in contact with the roof, in spite of, 

according to the uncontradicted testimony of Tagliati, the inspectors being present when such conditions have existed. Based upon 

these factors it must be concluded that operator's failure to 

have forepole pads in contact with the roof was neither as a 

result indifference or willful intent. Further, although I have 

held infra, that a reasonably prudent person familiar with the 

mining industry would have recognized the hazardous condition of 

an unsupported roof caused by the f orepole pads not being in 

contact with the roof, I am not deciding that this established a 

serious lack of reasonable care. (c.f. U.S. Steel Corporation, 

supra.} The operator's lack of reasonable care did not reach 

this high degree as it was based upon its reasonable interpretation of its roof plan, the long history of not being cited for 

similar conditions, and its reasonable belief that a serious 

hazard was entailed in placing supports in the gap between the 

pads and the roof. Accordingly it is concluded that violation 

herein of 30 C.F.R § 75.200 does not constitute an unwarrantable 

failure to comply with the Act. 

v 

I have considered all the criteria in section llOCi> of the 

Act. The Parties has stipulated ai the size of the operator's 

business which I interpret as being large. I find that there is 

no evidence that the civil penalty proposed by the Secretary will 

have any detrimental affect on the operator's ability to continue 

in business. I also find that the operator did demonstrate good 

faith in abating t"he violation in a timely fashion. I further 

find that the operator, in violating 30 C.F.R § 75.200, was negligent to a moderate degree, but that its action did not indicate a 

serious lack of reasonable care. I .further find that the gravity 

of the violation was serious with regard to the 3 or 4 of forepole pads that were approximately 14 inches lower than the roof. 

I also find that the gravity of violation was serious with regard 

to ~he four adjacent forepole pads not in contact with the roof. 

However, I find that the gravity was only slight with regard to 

the 5 or 6 of the 13 f orepole pads that were only approximately 2 

inches below the roof. Based upon all these factors I find that 

a penalty of $600 is appropriate. 

. Concerning order number 2696200, issued on February 3, 1986, 

Petitioner has filed a motion to approve a settlement agreement 

and to dismiss the case. A reduction in penalty from $700 to 

$150 is proposed. I have considered the representations and 

1107 
documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the criteria set forth 

in Section·llOCi> of the Act. I further conclude that the modifications of the order to a section 104(a) citation is proper. 

ORDER 

It is ORDERED that the operator pay the sum of $750, within 

30 days of this decision, as a civil penalty for the violations 

found herein. 

It is further ORDERED that order number 26926220 be modified 

to a Section 104Ca> Citation. As modified the citation is 

affirmed. The contest is thus GRANTED in PART and DENIED in 

PART. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

Ronald B. Johnson, Esq., Recht & Johnson, 3000 Boury Center, 

Wheeling, WV 26003 (Certified Mail) 

William T. Salzer, Esq., Office of the Solicitor, U. S. 

Department of Labor, Room 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

dcp 

1108 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 21987 . 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

SELLERSBURG STONE COMPANY, 

Respondent 

Docket No. LAKE 86-127-M 

A.C. No. 12-00109-05508 

Docket No. LAKE 86-128-M 

A.C. No. 12-00109-05509 

Sellersburg Stone Mine 

DECISIONS APPROVING SETTLEMENTS 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant to section llO(a) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 820(a), seeking civil penalty assessments for 13 alleged violations of certain mandatory safety 

standards found in Part 56, Title 30, Code of Federal Regulations. 

The petitioner has now filed a motion pursuant to Commission 

Rule 30, 29 C.F.R. § 2700.30, seeking approval of the proposed 

settlements. The citations, initial assessments, and the proposed settlement amounts are as follows: 

Docket No. LAKE 86-127-M 

30 C.F.R. 

Citation No. Date Section Assessment Settlement 

2633854 06/17/86 56.14001 $119.00 $ 65.00 

2633855 06/17/86 56.14003 119.00 65.00 

2633859 06/17/86 56.14001 192.00 138.00 

2633860 06/17/86 56.11012 119.00 119.00 

2844942 06/17/86 56.14003 119.00 65.00 

284494-3 06/17/86 56.11012 119.00 119.00 

$787.00 $571. 00 

1109 
Docket No. LAKE 86-128-M 

30 C.F.R. 

Citation No. Date Section Assessment Settlement 

2844949 06/17/86 56.14003 $119.00 $ 65.00 

2844950 06/17/86 56.14003 119.00 65.00 

2844954 06/17/86 56.14003 119.00 65.00 

2844955 06/17/86 56.14003 119.00 65.00 

2844960 06/17/86 56.14003 119.00 65.00 

2844962 '06/17/86 56.11012 119.00 119.00 

2844963 06/17/86 56.14003 119.00 65.00 

$833.00 $509.00 

Discussion 

In support of the proposed settlement disposition of these 

cases, the petitioner has submitted information pertaining to 

the six statutory civil penalty criteria found in section llO(i) 

of the Act. In .addition, the. petitioner has submitted a full 

discussion and disclosure as to the facts and circumstances 

surrounding the issuance of the violations in question, and a 

reasonable justification for the reduction of the original 

proposed civil penalty assessments. 

Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of these cases, I conclude and find that 

the proposed settlement dispositions are reasonable and in the 

public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30, 

the motion IS GRANTED, and the settlements ARE APPROVED. 

ORDER 

Respondent IS ORDERED to pay civil penalties in the settlement amounts shown above iri satisfaction of the citations in 

question within thirty (30) days of the date of these decisions 

and order, and upon receipt of payment by the petitioner, these 

proceedings are dismissed. 

. 

~~ Koutras 

rative Law Judge 

1110 
Distribution: 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. 

Department of Labor, 230 South Dearborn Street, 8th Floor, 

Chicago, IL 60604 (Certified Mail) 

Fred W. Banks, Vice President, Sellersburg Stone Company, 

1019 E. Utica Street, Sellersburg, IN 47172 (Certified Mail) 

/f b 

1111 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

DANIEL S. ALEXANDER, 

Complainant 

v. 

FREEPORT GOLD COMPANY, 

Respondent 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JUN 221987 

. . 

.. 

. 

DISCRIMINATION PROCEEDING 

Docket No. WEST 85-106-DM 

MD 84-60 

Jerrett Canyon Project 

DECISION 

Appearances: Thomas L. Stringfield, Esq., Elko, Nevada, 

for Complainant; 

R. Blain Andrus, Esq., Steven, G. Holloway, Reno, 

Nevada, 

for Respondent. 

Before: Judge Lasher 

This proceeding arises under Section 105{c){3) of the 

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

~' (1982) {herein "the Act"). Complainant's initial complaint 

with the Labor Department's Mine Safety and Health Administration 

CMSHA) was dismissed. Both parties were well represented at the 

hearing. ~/ 

Complainant contends that he was discharged by Respondent on 

January 3, 1984, from his position as a permanent mill employee 

because of his engagement in activities protected under the 

Federal Mine Safety and Health Act.of 1977 {the Act). Respondent 

contends that Complainant was discharged for his excessive 

absenteeism and, secondarily, because of his accident rate. 

FINDINGS 

General 

The correct name of Respondent is Freeport-McMoran Gold 

Company. It is a subsidiary of Freeport McMoran, Inc., a 

Delaware corporation authorized to do business in the State of 

!/ The hearing was held during a 3-day period, October 27, 28 and 

29, 1986. For each day of hearing there is a separate transcript 

beginning with page one. Accordingly, transcript citations will 

be prefaced with "I" "II" and "III", respectively, in this 

manner: "I-T. 11 , 11 II-T. 11 and 11 III-T. 11 

1112 
Nevada (I-T 43-44). Respondent owns and operates the subject 

open pit gold mine which is located 52 miles northwest of Elko, 

Nevada. At the time the events pertinent herein occurred its 

payroll was approximately 320 and its current payroll is approximately 420. Ore tonnage figures for the two periods (then and 

now) are 3,200 tons and 4,000 tons, respectively (I-T. 43, 48). 

During 1983, the ore was brought from the mine, which was 7-9 

miles from the mill at which Complainant worked, in haul trucks 

and placed in a dump; from the dump a loader would carry the ore 

from the dump and deposit it in an area where it was placed on 

belts and carried into the mi~l where it was crushed (I~T. 49). 

During the pertinent period (1983-1984) the mine operated 

24-hours per day.(3 8-hour shifts) seven days a week (I-T. 45) 

and the employees were not represented by a union CI-T. 51). 

The Complainant, Daniel S. Alexander, commenced employment 

with Respondent on December 20, 1982, as a temporary employee. 

On February 14, 1983, he became a regular employee in the mill 

(where approximately 100 employees worked at the time) and on 

April 2, 1983, he was ad~anced to "Technician D" which was the 

first step in a five-step progression to becoming a Mill Operator 

Specialist CI-T. 47). He was still in the Technician D position 

at the time of his discharge some eight months later on January 

3, 1984. 

Complainant's immediate supervisor for most of 1983 was R.T. 

Albright, shift foreman. (I-T. 50). His immediate supervisor for 

the last two months of his employment and when he was discharged 

was Mill Foreman Thomas E. Watkins (I-T. 65). During most of. 

1983, the next-level supervisor above Albright was Edward G. 

Walker, General Mill Foreman, and above Walker was the Mill 

Superintendent, Richard Johnson (I-T. 50, 51). Above Mr. Johnson 

in management echelon in most of 1983, but not at the time of 

Complainant's discharge was the Mill Manager, David J. Collins. 

Protected Activities 

Complainant engaged in various activities which are 

protected by the Act prior to his discharge. Thus he had complained that a radial stacker needed to be repaired (I-T. 91-92, 

114-120). Complainant also testified, in very general terms, 

that he had filed two written safety complaints, at unspecified 

times. The first complaint was a suggestion to modify a carbon 

transfer line so that it would not "blow off" and scald an 

operator. Complainant was unable to recall the nature of the 

second written complaint. Complainant also testified he made 

verbal complaints about the radial stacker and about putting up 

guards around the feeders CI-T. 118-120); he was but one of 

several (I-T. 88) who made such complaints about the stacker. 

Complainant was not shown to be a leader or vanguard of safety 

militancy at the mine or even that he was the most vocal, or 

particularly vocal, spokesman in safety matters. 

1113 
While Complainant engaged in some protected activities, it 

is also. noted that the quality of such were not heated, controversial or the type which ordinarily would be provocative or 

invitatory of retaliation. Nor does this record reveal any 

immediate or spontaneous reaction on the part of any of 

Respondent's foremen or management personnel to Complainant's 

actions demonstrating hostility or anti-safety animus. 

Respondent's Absenteeism Policy 

Respondent's "Employee Handbook" (Exhibit C-2) is issued to 

new employees. Title III, Benefits, Section I, "Salary 

Continuation for Disability" thereof states inter alia: 

"All permanent full-time employees upon the completion 

of 30 consecutive days of Company recognized service 

become eligible to receive continuing income during 

periods of short term disability from illness or offthe-job injuries under the Company's wage and salary 

continuation plan." 

x x x x x x x x x x x 

If you are unable to report for work as scheduled, you 

are expected to notify your supervisor promptly. Except for extenuating circumstances, failure to notify 

your supervisor will result in loss of benefits. 

x x x x x x x x x x x 

"Excessive use or abuse of this program for minor illness 

may result in a review by management to determine whether 

or not the employee may continue employment. Two (2) 

day's absence for minor illness each three months will 

be considered as excessive absence and will result in a 

review. n 

Title VII, Personnel Procedures, Section E "Attendance and 

Absenteeism" states: 

"Employees are expected to be at work on all working 

days except in the case of illness or other excused 

absences. If you need to be absent from work, you are 

required to obtain authorization from your immediate 

supervisor. Excessive absenteeism for any reason will 

not be tolerated and you will be subject to appropriate 

disciplinary action. You will be notified whenever your 

attendance is unacceptable," (emphasis added). 

Title v, Problem Solving System, Section B, "Basic Areas 

Requiring Discipline" of the Employee Handbook states in 

pertinent part: 

1114 
"l. Definitions of Minor Rule Violations. These are 

violations which in themselves, are not reason for discharge. However, repetitive violation of these rules 

will result in progressively more severe discipline and 

may end in discharge. The following is illustrative of 

minor violations: a) Tardiness or absenteeism (page 27, 

T.E. C2)." 

The Employee Handbook is but a "guide" to Respondent's 

policy (I-T. 51, III-T. 38, 40, 49, 99). 

Summary of Complainant's Absences 

February 6, 1983. Reason: Sick. This absence occurred while 

Complainant was a temporary and eight days before be became a 

permanent employee. 

April 15, 1983. Reason: Sick-Flu. 

AJ2ril 20i 1983. Reason: Fixing broken windows. 

AJ2ril 23i 1983. Reason: Sick. 

A:eril 24i 1983. Reason: Sick. 

May 7, 1983. Reason: Complainant's father-in-law died. 

June 2i 1983. Reason: Flu. 

June 25i 1983. Reason: To JCepair windows. 

November 17, 1983. Reason: Sick. 

November 18i 1983. Reason: Still sick. 

All 10 of these absences were "excused" absences CI-T. 7-8). 

Complainant, however, was absent on January 1, 1984 as a result 

of a "Driving Under the Influence" incarceration; this'absence 

was not excused CIII-T. 49) and was a "major" rule violation 

CIII"-T. 75, 76, 100). In his testimony CIII-T. 107), Complainant 

conceded the existence of alcohol and marital problems and such, 

as hereinafter noted, were of some concern to Respondent's 

management who took various actions to assist Complainant therewith. The record demonstrates that the alcohol problem at least 

extended up to the time of his discharg.e. 

Com:elainant's Absence on January li 1984. 

Complainant was arrested by the Elko County Sheriff's 

Department for DUI (Driving Under the Influence> at approximately 

12:30 a.m. on January 1, 1984, and booked at 1:05 a.m. for DUI 

CEx. c-4>. 

1115 
The booking sheet (Ex. C-4) reflects that he called his 

foreman, Tom Watkins at 1:20 a.m. ~/ 

Complainant's version of the events following his arrest 

follows: 

Q. What did you do after you were arrested? 

A. I made a phone call to my supervisor Tom Watkins. 

Q. How was that phone call made? 

A. It was made in jail, the jailer dialed the number and 

handed the phone to me. 

Q. Describe the conversation with Mr. Watkins? 

A •. I told him that I had been arrested for D.U.I. I was 

trying to make bail to be to work on time in the morning 

and I asked him if I should go ahead and call Freeport 

and tell them I wasn't going to be there or to wait and 

see if I could make bail and get there on time or get 

there at all. And he said if you are not there I'll 

know where you are at and so I just told Tom I would get 

there as soon as I could. 

Q. At that point, did you think you were going to be absent 

that day? 

A. I wasn't for sure, I was hoping I wold get out in time. 

Q. Did you make any other phone calls to Tom Watkins that 

morning? 

A. After I was arrested, I went home and I called Tom and 

it was already after the shift had started and I told 

him that I had made bail and that I wanted to report to 

work, I would have a tardy, but 

Q. You had-- had you ever gotten a tardy before? 

A. No, I felt it would be better to have a tardy than an 

absentee and I would get there as soon as I could and 

Tom said, well, don't worry about it, just come in tomorrow on your regular scheduled shift, so I did. 

Q. Did you come in the next day on your regular shift? 

A. Yes, I did. I worked full shift on January second. 

ll While Watkins denied receiving such telephone call CI-T. 

53-54>, such denial is not credited in view of the testimony of 

the arresting officer, Carl L. Marr, and the booking officer, 

James L. Black, to the contrary (I-T. 74, 77-79). Complainant's 

account of this conversation CII-T. 116) is accepted. 

1116 
Q. 

A. 

Q. 

A. 

Q. 

What happened after the shift? 

Directly at the end of the shift, I believe it was Tom 

Watkins who handed me a slip 3; saying that I was on 

suspension and not to return to the mill site until 

January fourth. 

You heard Tom Watkins say you never called him that day 

at all. Did you hear him testify to that effect? 

Yes, I heard him say that. 

Is there any question in your mind you talked .to him 

that day? 

A. No, there is not. (II-T. 116-117). 

Complainant's Accident Record 

March 13, 1983. While using his 992 loader, Complainant 

accidentally tore the l~dder off the loader (Ex. c-3-VI). 

April 6, 1983. Complainant's knee was bruised and injured when a 

cable snapped while he was helping put a feed chute in place. 

May 1, 1983. Complainant sustained minor (small) cyanide burns 

on both arms while taking cyanide flow meters apart to clean 

them. 

June 21, 1983. While not wearing a face shield, Complainant had 

cyanide sprayed in his face. 

July 17, 1983. The tip of Complainant's little finger was 

smashed while he was placing a piece of rebar under the wheels 

of a radial stacker. 

December 21, 1983. Complainant bruised his back when he slipped 

and fell on ice while climbing out of a bridge feeder. ~/ 

3/ Ex. R-17. 

4/ While Complainant contends that the reports of the six 

accidents he was involved in in 1983 were safety complaints, 

these reports were completed by Respondent's management personnel 

on standard forms and in the course of Respondent's normal 

procedure for documenting accidents. The strong preponderance of 

the evidence is that the accident reports are not safety 

complaints. If Complainant's logic were carried out to its 

normal conclusion the more accidents a miner were involved in the 

more protected safety activities he would be seen to have engaged 

in. The concept of this argument has no credible foundation in 

the record and is rejected. Respondent is found justified in 

considering Complainant's overall accident record as part of its 

determination to discharge Complainant following the DUI absence 

on January 1, 1984. 

1117 
Complainant's Counseling and Disciplinary Record 

on.May 13, 1983, Complainant's performance was reviewed with 

him by his immediate supervisor, shift foreman R.T. Albright, and 

the mill general foreman, E.G. Walker, and Complainant was 

counseled concerning his excessive absenteeism CII-T. 204-207, 

219-221, 227). 

On June 13, 1983, the Complainant was given a letter of 

reprimand for excessive absenteeism by the mill general foreman, 

E.G. Walker. The Complainant was advised therein that it was his 

responsibility-to attend work regularly, he was notified that it 

would be necessary for him to provide a doctor's certification 

verifying any future illness, and he was warned that if he failed 

to fulfill his responsibilities further disciplinary action up to 

and including discharge would be taken CII-T. 80, 209-210, 

221-225). ~/ 

On June 27, 1983, the Complainant was referred by Respondent 

to the Community Mental 'Health Center for counseling. The· 

Complainant was referred by a counselor, CR.D. Herman, Ph.D. 

Cand, M.F.C.) but refused to enter an alcohol and drug rehabilitation program at Truckee Meadows Hospital in Reno, Nevada CII-T. 

211-212, 226-227). 

Complainant was counseled by the mill manager, D.J. Collins, 

on September 26, 1983, about his excessive accident rate. It 

appeared at that time that Complainant had had a number of 

personal problems and that such were probably the cause of his 

accidents CII-T. 210, 211, 227-232). 

By memo dated November 23, 1983 (Ex. R. 16: III-T. 16-18), 

Complainant was given the following warning by George D. Harris, 

the general mill foreman at the time, concernirrg the subject of 

absenteeism: 

It is the responsibility of every employee to maintain 

his/her personal health in such a manner as to provide 

for regular attendance at work. Your absence of November 

18, 1983 was the·seventh (7th) separate absence since 

April 15, 1983. You have been absent with'pay for a 

total of seven (7) days since that date. 

The company is not questioning whether you were in fact 

sick or disabled on the above occasions: however, your 

absenteeism is disruptive to your fellow workers and to 

the efficient operation of your work group. 

5/ As above noted, Title v, Problem Solving System, Section B, 

"Basic Areas Requiring Discipline" of the Employee Handbook (Ex. 

C-2 at p. 27) provides that minor rule violations, if repetitive, 

can result in progressively more severe discipline and may end in 

discharge. "Absenteeism" was specifically listed as an illustration of this principle. 

1118 
This letter is being given to you iu order that you will 

be aware of your attendance record and to ilnp:-ess upon 

you that excessive absenteeism reduces the value of an 

employee to the company, and in addition, to notify you 

at this time that it will be necessary for you to bring 

a doctor's certification verifying any future illness to 

insure pay for any such absence. I hope that it will 

help you to correct your absenteeism problem and that 

further discipline will not be necessary. 

If you fail to fulfill your responsibility as an employee 

to maintain your personal health in such a manner as to 

provide for your regular attendance at work, then further 

disciplinary measures will be taken up to and including 

discharge." 

Respondent's Termination Report dated 1/4/84 and signed by 

D.S. Barr (then Mill Operations Manager) pertinent to Complainant 

reflects that the "Reason for Separation" was "Absenteeism/Lateness," that the effective date of Complainant's dismissal was 

January 3, 1984, that Complainant's Attendance and Cooperation 

were "unsatisfactory," that his initiative was "fair," and that 

his Job Knowledge and Quality of Work were "satisfactory". Under 

the heading "Additional Comments" the following notation appeared: "Recommended Mental Health Counseling & Alcohol & Drug Abuse 

Counseling, general negative response. Dismissed for unexcused 

absence, DUI, after written warning for absenteeism. Also a 

safety problem." (Ex. R-18(a)). 

While Complainant had never been disciplined for engaging in 

unsafe practices, he was seen as being a "safety problem" on the 

basis of the various accidents he had been involved in during the 

year of his employment CII-T. 37). Prior to the discharge of 

Complainant, Respondent had not discharged any other employee 

solely for "excused absences." However, absenteeism can be 

excessive, whether or not excused (Employee Handbook, Ex. C-2, 

Sections E and I; I-T. 61-64; III-T. 73). 

Douglas Scott Barr, Respondent's mill operations manager at 

the time, who effectively recommended Complainant's discharge 

(II-T. 86; III-T. 65, 66,· 80, 93), credibly and effectively gave 

·his reasons for this decision: 

"Q. Let me go back. You said you took into account 

the number.of incidences. Did you also take into 

account the type of absences that were reflected 

in the file? 

A. We did. Primarily they were minor infractions, 

each one. It is just that there was a repetitve 

series, substantial number of them, there were 

several that were at best questionable. But, yet 

they were excused and minor in their own right. 

The situation that called it to our attention, there 

was a major violation we were considering an unexcused absence, he hadn't any unexcused absences 

there before." 

1119 
Q. What unexcused absences are you referring to? 

A. The one on the first of January. 

x x x x x x x x x x x x 

Q. Why did you consider the D.U.I. in this case 

particularly grievous? 

A. Well, first off, it's unreported, it's-- it's in a 

situation where it's a common problem, not saying 

·common, but one in which we take a very great care 

to see if we can get people out on the first of 

January and its's a difficult time of the year for 

us so we need all the people we can get. So, a 

person's absence, unexcused, unscheduled and just 

unexcused, gives us gret difficulty at that point. 

The subject had just went through a warning period 

in November, which I was aware of and concerning 

his absenteeism, and a later time it was apparent 

under the continuation of the type of absences, 

that we had a problem before, an individual had 

been recommended for counseling, considering 

alcoholism, I'm going to say substance abuse, 

that's a better term. 

Q. Did you consider that there-- that the fact is 

that you had stated in your additional comments, 

there was negative, general negative response to 

the recommendation for mental health counseling 

and alcohol and drug abuse counseling, particularly significant in relationship to the D.U.I. on 

January l? 

A. Yes, I think it is. The alcohol abuse, substance 

abuse, was an underlying issue in quite a few of 

the items that were discussed. (III-T. 49-51). 

CONCLUSIONS AND DISCUSSION 

In order to establish a prima facie case of discrimination 

under Section 105(c) of the Act, a complaining miner bears the 

burden of production and proof to establish (1) that he engaged 

in protected activity and (2) that the adverse action complained 

of was motivated in any part by that activity. Secretary on 

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 

2797-2800 (October 1980), rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir., 1981); and 

Secretary on behalf of Robinette v. United Castle Coal Co., 3 

FMSHRC 803, 817-18 (April 1981). The operator may rebut the 

prima facie case by showing either that no protected activity 

occurred or that the adverse action was in no part motivated by 

protected activity. If an operator cannot rebut the prima facie 

case in this manner it may nevertheless affirmatively defend by 

proving that Cl) it was also motivated by the miner's unprotected 

1120 
activities, and {2) it would have taken the adverse action in any 

event for the. unprotected activities alone. The operator bears 

the burden of proof with regard to the affirmative defense. Haro 

v. Magma Copper co., 4 FMSHRC 1935, 1936-38 {November 1982). The 

ultimate burden of persuasion does not shift from the 

complainant. Robinette, 3 FMSHRC at 818 n. 20. See also Boich 

v. FSMHRC, 719 F.2d 194, 195-96 {6th Cir. 1983); DOnovan v. 

Stafford Constr., Co., 732 F.2d 954, 958-59 CD.C. Cir. 1984) 

{specifically approving the Commission's Pasula-Robinette test); 

and Goff v. Youghiogheny & Ohio Coal Company, 8 FMSHRC 1860 

{December 1986) • 

It goes without saying that the concept of discrimination 

to be dealt with here is relatively narrow, i.e., that contemplated by the 1977 Mine Safety. Matters-or allegations-of 

general unfairness, failures, or inequities in the employeeemployer relationship are not subject to remedy under this.Act. 

While I have found that Complainant marginally engaged in 

protected activities, there is no nexus between such activities 

and the adverse action {discharge) taken by Respondent. 

There is little, if any, direct or indirect evidence of 

discriminatory motivation in the record, bearing either on Cl) 

Respondent's purposes in discharging Complainant, or {2) 

Respondent's attitude and approach to the safety activities of 

its employees. The great weight of the probative, substantial 

evidence supports Respondent's position t.hat it discharged 

Complainant because of excessive absenteeism primarily, and his 

accident record secondarily, with some documented and sincere 

attendant concern for what it perceived to be alcohol/marital 

problems in Complainant's life CIII-T. 107). Although Complainant attempted to establish that Respondent discouraged safety 

reporting or accident reporting by giving awards and dinners to 

employee groups having the best accident-free record, Complainant 

himself testified: 

"It was Freeport's policy, as far as anytime you so much 

as got a scratch you were to report it as an accident to 

keep similar accidents from happening, if possible and 

point out hazards and just also to cover yourself in 

case-- they give you an example,. somebody got a scratch 

and got blood poison and the guy didn't turn ii in and 

ended up paying for it out of his own pocket." CT. 118). 

Another Complainant's witness, when asked whether he had 

observed an atmosphere "discouraging the reporting of minor 

accident or complaining about safety" (I-T. 107), replied: 

"In a sense, it was more of an implied discouragement, if 

people reported too many minor accidents, scraped fingers, 

if they got up to a certain amount, they were considered 

unsafe and had to go to special training or had to go to 

counseling with being an unsafe worker." 

1121 
Respondent established that its practices were intended to 

encourag~ and reward good safety practices and that its 

activities in this respect were common throughout the industry 

(II-T. 189). 

c~~plainant's contention that Respondent was engaged in 

conduct calculated to discourage safety reporting is rejected. 

Establishment of discriminatory motivation is difficult and 

seldom accomplished through direct proof. Secretary of Labor on 

behal! of Johnny N. Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 

(1981), reconsideration den. 3 FMSHRC 2765 (1981); Brazell v. 

Island Creek Coal Company, 4 FMSHRC 1455 (1982). Here, Complainant did not establish through any probative or convincing 

evidence that Respondent had a pattern or policy, formal or 

otherwise, of retaliating against miners for making safety 

complaints. Again, although the contention was raised, there was 

no probative substantial evidence that Respondent had ever retaliated or taken adverse action against safety complainants in 

other matters which might indicate a general pattern or background of discriminatory conduct. A history of management 

hostility to safety complaints, while argued, was not to any 

degree of persuasion established on this record. The record is 

devoid of admissions or statements by Respondent's management 

personnel indicating an anti-safety reporting animus. Nor are 

there writings, accounts of conversations, or oral statements 

made by Respondent's foremen, or other officers, from which the 

existence of a discriminatory animus can be inferred. There is 

no evidence of resentment or antagonism on Respondent's part 

traceable to any of Complainant's activities protected under the 

Act. Complainant's evidence, apparently of necessity, was 

general and unpersuasive in these regards. Further belying the 

existence of discriminatory motivation were Respondent's various 

efforts to assist Complainant with his backgroqnd difficulties. 

In short, I find no probative evidence from which it can be 

determined or inferred that Respondent's motivation, solely or in 

part, was discriminatory toward Complainant for his engagement in 

any protected activity. It is concluded that Complainant failed 

to establish a prima facie case of discrimination recognizable 

under the Act. 

Even assuming arguend6, and such is not the situation here, 

that Complainant did establish that part of Respondent's 

motivation was his engagement in protected activities, based on 

Complainant's absence and accident record and its own impressive 

record of prior counseling and warnings to Complainant in 1983, 

Respondent established a clear and strong justification for 

discharging Complainant for his unprotected activites and that 

such action was taken and would have been taken for such unprotected activities alone. See Gravely v. Ranger Fuel Corp., 6 

FMSHRC 799 (1984). 

ULTIMATE CONCLUSIONS 

Complainant failed to establish by substantial probative 

evidence that his discharge was motivated in any part by his 

1122 
engagement in protected activities. Thus, Complainant failed to 

establish a prima facie case of discrimination under Section 

105Cc> of the Act. 

Even assuming arguendo that Complainant did establish by a 

preponderance of the reliable, probative and substantial evidence 

that his discharge was motivated in some part by his protected 

activities, Respondent clearly showed by a strong preponderance 

of the evidence that it was motivated by Complainant's unprotected activities, i.e., his absenteeism and accident record, and 

that it would have taken the adverse action (discharge of 

Complainant) in any event for such unprotected activities. 

ORDER 

Complainant having failed to establish Mine Act 

discrimination on the part of Respondent, his complaint is 

DISMISSED. 

Distribution: 

~uP. 4'; ~~~~-{.,~ fi -- Michael A. Lasher, Jr. 

Administr~tive Law Judge 

Thomas L. Stringfield, Esq., 575 Fifth Street, Elko, NV 89801 

(Certified Mail> 

R. Blain Andrus, Esq., Freeport Gold Company, P.O. Box 1911, 

Reno, NV 89505 (Certified Mail) 

/bls 

1123 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 22, 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

·Petitioner 

v. 

HELEN MINING COMPANY, 

Respondent 

.. 

. 

CIVIL PENALTY PROCEEDING 

Doc~et No. PENN 87-102 

A. C. No. 36-00926-03658 

Homer City Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlement of 

the violation involved in this cases. The original assessment 

was $800 and the proposed settlement is for $500. 

The subject order was issued for a vi~lation of 30 C.F.R. 

§75.200 when an MSHA inspector detected six missing roof bolts 

and one loose roof bolt at the M butt construction overcast in 

the Muddy Run area. The Solicitor represents that a reduction 

from the original assessment is warranted because the special 

assessment narrative erroneously. stated that a "foreman was observed in the unsupported area." The inspector, however, did not 

observe individuals working under unsupported roof, and did not 

charge such conduct in his order. 

In light of this information regarding the discrepancies between the assessment narrative and the factual basis for the 

order, I approve the recommended settlement. 

Accordingly, the motion to approve settlement is GRANTED and 

the operator is ORDERED TO PAY $500 within 30 days of the date of 

this decision. 

Paul Merlin 

Chief Administrative Law Judge 

1124 
Distribution: 

William T. Salzer, Esq., Office of the Solicitor, U. S. Department of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 {Certified Mail) 

Ronald B. Johnson, Esq., Recht & Johnson,. 3000 Boury Center, 

Wheeling, WV 26003 (Certified Mail) 

Lynn B. Harding, Safety Director, Helen Mining Company, R.D. #2, 

Box 2110, Homer City, PA 15748 (Certified Mail) 

Michael H. Holland, Esq., UMWA, 900 15th Street, N.W., 

Washington, DC 20005 (Certified Mail) 

I gl 

1125 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JUN 2 21987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MOHAVE CONCRETE & MATERIALS 

INC., 

Respondent 

. . Docket No. WEST 86-14-M 

A.C. No. 02-02253-05501 

Mohave Concrete 

DECISION AFTER REMAND 

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, California; 

for Petitioner; 

Mr. Larry Rinaldis, Mohave Concrete & Materials, 

Incorporated, Lake Havasu City, Arizona, 

pro se. 

Before: Judge Morris 

On November 18, 1986, the Federal Mine Safety and Health 

Review Commission remanded the captioned case and directed the 

judge to consider either the sufficiency of the cause asserted or 

the underlying merits of the case. 

Subsequently Chief Administrative Law Judge Paul Merlin 

ruled that the operator should not be held in default. He 

further assigned the case to the undersigned for a hearing on the 

merits. 

The hearing took plAce in Las Vegas, Nevada on February 19, 

1987. The parties waived their right to file post~trial briefs. 

Issues 

The issues presented are whether the violations occurred; if 

so, what penalties are appropriate. 

Stipulation 

At the commencement of the hearing the parties agreed the 

Secretary could present evidence of one unguarded machine part 

and one junction box. In turn this evidence would be generally 

applicable to the similar remaining citations (Tr. 6, 7). 

1126 
They further agreed that respondent is a small operator 

without any adverse history (Tr. 8-10). 

Summary of the Case 

Ronald W. Barri, an MSHA inspector for eight years, 

inspected respondent's plant on June 5, 1985 (Tr. 15, 16). 

The plant was in operation and no one claimed it had been 

shut down or was being repaired. When he arrived on the site he 

talked to the dispatcher, who directed him to the foreman (Tr. 

16, 17). The foreman shut down the plant before beginning the 

inspection (Tr. 17). 

In connection with Citation 2366229 the inspector observed 

that the tail pulley of the main plant conveyor was unguarded. 

Any employee servicing or cleaning the area could come in contact 

with it CTr. 18; Ex. Pl5). At the time an employee was removing 

large rocks and roots from the conveyor. If a person was pulled 

into the tail pulley he could be severely injured (Tr. 19). 

The State of Nevada had inspected respondent three weeks 

before the MSHA inspection (Tr. 19, 20). The state representative reported to MSHA that the plant was in bad shape. 

Citations 2366229, 2366232, 2366233, 2366234, 2366235, 

2366236, 2366237, 2366238, 2366241 and 2366244 all relate to the 

unguarded movable machine parts. -· 

Citation 2366236, involving the crusher flywheel and drive, 

~ecause of the exposure involved a more serious hazard than the 

remaining citations CTr. 20, 21; Ex. PS, P6). The gravity of the 

remaining conditions was pretty much the same (Tr. 21). Further, 

the observability and duration of the conditions were about the 

same (Tr. 22) • 

Respondent abated the violations within the specified time 

but the new guards were insufficient. They did not prevent a 

person from reaching behind and contacting the pulleys (Tr. 22). 

The described condition of the unguarded machine parts 

resulted in the issuance of ten citations for the violation of 30 

C.F.R. § 56.14001. The cited regulation provides as follows: 

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. 

Citation 236,231 relates to a junction box for the feed 

conveyor drive motor. The box did not have a cover (Tr. 24; Ex. 

Pl7). If a short occurred the conveyor frame could be energized. 

This 440 volt exposure could electrocute the four workers in the 

1127 
area who might contact the frame. The junction box, which was 

readily observable, was five or six feet above the ground (Tr. 

25). The foreman indicated this condition had existed for some 

time {Tr. 25, 26). 

Citations 2366231, 2366239, 2366240, 2366242, 2366243, 

2366245 and 2366246 all involve junction boxes with the same 

conditions as previously described (Tr. 26). Exhibit Pl4 shows a 

switch on the three-quarter inch rock conveyor. The switch was 

in use and energized (Tr. 26, 27). 

The condition of the junction boxes caused the inspector to 

issue seven citations for the violation of 30 C.F.R. § 56.12032. 

The cited regulation provides as follows: 

Inspection and cover plates on electrical equipment and 

junction boxes shall be kept in place at all times except during testing or repairs. 

The inspector further observed a well traveled path, 

equivalent to a walkway, alongside the feed conveyor for the main 

plant. The failure to provide such an emergency stop cord 

resulted in the issuance of Citation 2366230 for a violation of 

30 C.F.R. § 56.9007. The cited standard provides as follows: 

Unguarded conveyors with walkways shall be equipped with 

emergency stop devices or cords along their full length. 

Two employees were exposed to the hazard, one was directly 

alongside the conveyor. A worker in this· position could contact 

the moving conveyor, or the troughing idlers (Tr. 27, 28). Death 

or serious injury is a probable result from this hazard. It was 

indicated the condition had been there for several years <Tr. 

28). 

The inspector saw where the power cables enter into the 

metal switch gear boxes. The boxes were not equipped with proper 

fittings CTr. 29, Ex. Pl4). The condition could cause the metal 

frame to cut through the insulation of the cable thereby causing 

a short. If a short occurred anyone touching the box could be 

electrocuted. Since the cables were in good condition it was 

unlikely that an accid~nt would occur (Tr. 30). 

The above condition resulted in the issuance of Citation 

2366247 alleging a violation of 30 C.F.R. § 56.12008. The cited 

standard provides as follows: 

Power wires and cables shall be insulated adequately 

where they pass into or out of electrical compartments. 

Cables shall enter metal frames of. motors, splice boxes, 

and electrical compartments only through proper fittings. 

When insulated wires, other than cables, pass through 

metal frames, the holes shall be substantially bushed 

with insulated bushings. 
The mine had been in operation for several years before the 

inspection but the company had not notified MSHA of its 

activities (Tr. 31). 

This situation resulted in the issuance of Citation 2366258 

alleging a violation of 30 C.F.R. § 56.1000. The cited standard 

provides as follows: 

The owner, operator, or person in charge of any metal 

and nonmetal mine shall notify the nearest Mine Safety 

and Health Administration and Metal and Nonmetal Mine 

Safety and Health Subdistrict Off ice before starting 

operations, of the approximate or actual date mine operation will commence. The ~otification shall include the 

mine name, location, the company name, mailing address, 

person in charge, and whether operations will be continuous or intermittent. 

When any mine is closed, the person in charge shall 

notify the nearest subdistrict off ice as provided above 

and indicate whe.ther the closure is temporary or 

permanent. 

At the time of the inspection the plant was running. In 

addition, the inspector saw the conveyors in motion, they were 

also shipping cement at a nearby batch plant. Further, an 

employee was picking rocks of E the conveyor and another was 

running a loader feeding the plant. An ~dditional worker was 

running a bulldozer pushing sand (Tr. 46, 47). 

When he appeared the day following the inspection Mr. 

Polidori didn't claim the plant hadn't been in operation nor did 

he claim there had been a test run that day CTr. 51). 

Quinto Polidori, President of Mohave Concrete, testified for 

the respondent. He indicated the company also has a plant at 

Lake Havasu City, Arizona. They have been in operation for 12 

years and never been cited (Tr. 69). 

The plant involved in the instant case has been in operation 

for four and one-half years. The company does its best to keep 

and maintain a safe operation. The company received its lease 

from the Fort Mojave Indians in 1981. At that time he was told 

that no permit was required CTr. 70). 

At the time of this inspection the plant was not in operation. The jaw crusher had been removed. Further, the rock had 

been emptied from the hopper and it was picked up by hand (Tr. 

71). The condition the inspector observed was temporary since 

they were emptying the hopper by hand {Tr. 71). 

The company has had no difficulty with the lessor Indian 

Tribe (Tr. 721 Ex. R6). 

1129 
The parties stipulated that if Mr. Rinaldis testified he 

would indicate that the company previously had some incompetent 

people w6rking for it. Further, he would testify that Mr. 

Polidori is a safe operator {Tr. 7S). 

Witness Polidori further explained his drawing showing his 

conveyor and hqpper {Tr. 77, 78; Ex. RS). At the time the jaw 

crusher was broken down and flat on the ground (Tr. 78). The 

plant was not in operation (Tr. 86, 88, 100) 

D'uring the inspection the conveyor was on the ground. The 

workers put the conveyor down to empty the hopper {Tr. 80). Also 

the guard was off so the machine could be tested {Tr. 81, 82). 

The plant had been shut down three or four weeks, after the 

crusher broke down. This occurred after the state inspection 

CTr. 83) • 

When the operation is run without a crusher it is referred 

to as a pit run. Since materials were inside the hopper, they 

did not operate as a pit run (Tr. 84). 

In Citation 2366236 the guard was on the ground because repairs were being made (Tr. 87). The witness denies there is a 

part that should be guarded in Citation 2366237 (Tr. 89; Ex. P7, 

P9). In connection with Citation 2366241 there was a guard but a 

worker was changing the whole setup (Tr. 90; Ex. P9). 

Concerning Citation 2366231 there was a cover but it had 

been taken off for repairs (Tr. 91). 

Evaluation of the Evidence 

Concerning the unguarded machine parts the· pivitol issue 

focuses on whether the plant was in operation at the time of the 

inspection. The inspector's testimony is clear that it was 

functioning. Oh the other hand, respondent's evidence is, at 

times, obscure. 

I find from the.cred1bl~ evidence that the plant was in fact 

in operation on the day of the inspection. Inspector Barri's 

testimony was precise on this issue; the employee was picking 

rock from the conveyor. Another worker was operating a loader; 

some conveyors were in motion (Tr. 46, 47). The owner, who was 

not present at the site until the following day, never claimed 

the plant was not in operation {Tr. Sl). However, I agree with 

respondent's president, Quinto Polidori, that an unguarded part 

was being repaired on the day of the inspection. The presence of 

the worker picking rocks from the conveyor confirms this view. 

As a result of the repairs a worker could not be exposed and it 

is appropriate to vacate Citation 2366236 (Tr. 87; Ex. PS, P6). 

1130 
The remaining guarding citations should be affirmed as the 

workers were.exposed to these moving unguarded parts. 

The citations relating to the cover plates should also be 

affirmed. All of the cited junction boxes lacked cover plates. 

Respondent claimed one of the boxes was being repaired. However, 

no credible evidence supports this assertion. In addition, 

respondent's witness was not present on the day of the 

inspection. 

The citation concerning the lack of a stop device along the 

conveyor should be affirmed. The conveyor did not have a walkway 

as such but Inspector Barri observed a well traveled path 

adjacent to the conveyor. Such a path would be equivalent to a 

walkway within the terms of § 56.9007. 

Concerning the power cables entering the metal gear box the 

evidence establishes that the metal frames lacked proper fittings. 

The citation should be affirmed. 

Respondent asserts that since it was a lessee on an Indian 

reservation it did not have to notify MSHA of its activities. 

Respondent's argument is contrary to the law. A general statute 

in terms applicable to all persons includes Indians and their 

property interests. FPC v. Tuscarora Indian Nation, 362 U.S. 99, 

80 S. Ct 543, 4 L. Ed. 2d 584 (1960); Donovan v. Coeur d'Arlene 

Tribal Farm, 751 F.2d 1113 (1985). 

The citation alleging respon~ent's failure to notify MSHA of 

its activities should be affirmed. 

Civil Penalties 

The statuto~y criteria to assess a civil penalty is contained in Section llOCi> of the Act, now 30 u.s.c. § 820(i). It 

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 fai~h of the person charged in attempting to 

achieve rapid compliance after notification of a violation. 

In connection with the above guidelines it appears that 

respondent has no adverse prior history. However, this could 

readily arise from the operator's failure to report its activities to MSHA. The parties agree as to the small size of the 

operator (Tr. 10); hence, the proposed penalties appear appropriate. The violative conditions involving the moving machine 

1131 
parts, cover plates, conveyor and bushings were open and obvious. 

The operator must, accordingly, be considered as negligent. The 

failure to notify MSHA should als6 be considered as negligence on 

the part of the operator. The operator had another site not 

located on an Indian reservation. As sucih he should have inquired as to his rights as a lessee of Indian property. Whether 

the imposition of penalties would adversely effect the operator 

is an affirmative defense, Buffalo Mining co., 2 IBMA 226 (1973); 

Associated Drilling, Inc., 3 IBMA 164 (1974). Respondent offered 

no evidence on this issue. Except for the reporting requirement 

the gravity of the remaining violations is moderate. I credit 

the operator with statutory good faith. The company attempted to 

abate the conditions, although the inspector later found its 

guarding of the machine parts was inadequate. The deficiency was 

then corrected. 

On balance, I believe the civil penalties set forth in the 

order of this decision are appropriate. 

Based on the entire record and the factual findings made in 

the narrative portion of this decision I conclude that the 

Commission has jurisdiction to decide this case. Further, I 

enter the following: 

ORDER 

1. (Unguarded moving machine parts): The following 

citations are affirmed and penalties are assessed as noted: 

Citation 

2366229 

2366232 

2366233 

2366234 

2366235 

2366236 

2366237 

2366238 

2366241 

2366244 

2. (Junction boxes) 

Citation 

2366231 

2366239 

2366240 

2366242 

2366243 

236624S 

2366246 

3. (Emergency stop device) 

Citation 

2366230 

1132 

Penalty 

$50 

50 

50 

50 

50 

Vacated 

50 

so 

so 

so 

Penalty 

$20 

20 

20 

20 

20 

20 

20 

Penalty 

$30 
4. (Insulated bushings) 

Citation 

2366247 

5. (Failure to notify MSHA) 

Citation 

2366258 

Penalty 

$20 

Penalty 

$10 

6. Respondent is ordered to pay to the Secretary the sum of 

$650 within 40 days of the date of 'this decision. 

Law Judge 

Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. 

Department of Labor, 71 Stevenson Street, 10th Floor, P.O. Box· 

3495, San Francisco, CA 9411~-3495 (Certified Mail) 

Mohave Concrete & Materials Inc., Mr. Quinto Polidori, Mr. Larry 

Rinaldis, 4502 Highway 95 North, Lake Havasu City, AZ 86403 

(Certified Mail) 

/bls 

1133 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

JUN 231981 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), ·Petitioner 

v. 

U. S. STEEL MINING COMPANY, 

INC. , Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 87-107 

A. C. No. 36-05018-03643 

Cumberland Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlement for 

the violation involved in this case. The original assessment was 

$136 and the proposed settlement is for $30. 

The subject citation was issued for a violation of 30 C.F.R. 

§ 75.503 because the inspector believed that a headlight on a Joy 

continuous miner was not maintained according to permissibility standards in that the headlight on the machine was "loose and 

not making a ground connection." The Solicitor represents that a 

reduction from the original assessment is warranted, because "subsequent to the issuance of the citation, the Secretary's representative learned that a third wire existed that grounded the 

headlight; consequently, ~o hazard existed from the permissi- bility violati-0n." lhe cftation was then modified to reduce the 

gravity of the violation to ·"no likelihood of occur~ence." 

In light of the information regarding the existence of a 

third wire that grounded the headlight, I accept the Solicitor's 

representations and approve the recommended settlement for a 

nonserious violation. 

Accordingly, the motion to approve settlement is GRANTED and 

the operator is ORDERED TO PAY $30 within 30 days from the date 

of this decision. 

Paul Merlin· 

Chief Administrative Law Judge 

1134 
Distribution: 

William T. Salzer, Esq., Office of the Solicitor, U. S. Department of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Billy M. Tennant, Esq., General Attorney, Employee Relations, 600 

Grant Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail) 

Mr. Samuel L. Cortis, Safety Manager, U. S. Steel Mining Company, 

Inc., 351 West Beau Street, Washington, PA 15301 (Certified 

Mai 1 ) 

I gl 

1135 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOtlJ FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2fl1Q87 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

. . Docket No. CENT 86-120-M 

: A.C. No. 41-00995-05510 

v. 

: Van Horn White Marble Mine 

TEXAS ARCHITECTURAL 

AGGREGATES, INCORPORATED, 

Respondent 

Appearances: 

Before: 

DECISION 

Jill D. Klamm, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

the Petitioner; 

David M. Williams, Esq., San Saba, Texas, for 

the Respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated 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. 

§ 820Ca), seeking a civil penalty assessment of $20 for an 

alleged violation of the mandatory noise standards found at 

30 C.F.R. § 57.5-50(b). The respondent filed a timely contest and answer and a hearing was held in Austin, Texas. The 

parties were afforded an opportunity to file posthearing 

briefs, but they declined to do so. 

Issues 

The principal issues presented in this case are Cl> 

whether the conditions or practices cited by the inspector 

constitute a violation of the cited mandatory health standard, and (2) the appropriate civil penalty to be assessed 

for the violation, taking into account the statutory civil 

1136 
penalty criteria found in section llOCi) of the Act. Additional issues raised by the parties are discussed in the 

course of this decision. 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 u.s.c. § 801 et se9. 

2. Sections llO(a) ~nd (i) of the 1977 Act, 3d u.s.c. 

§ 820(a) and Ci>. 

3. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

4. Mandatory standard 30 C.F.R. § 57.5-50, provides as 

follows: 

57.5-50 Mandatory. (a) No employee shall 

be permitted an exposure to noise in excess of 

that specified in the table below. Noise level 

measurements shall be made using a sound level 

meter meeting specifications for type 2 meters 

contained in American National Standards 

Institute (ANSI) Stanaard Sl.4-19.71. "General 

Purpose Sound Level Meters," approved April 27, 

1971, which is hereby incorporated by reference 

and made a part hereof, or by a dosimeter with 

similar accuracy. This publication may be 

obtained from the American National Standards 

Institute, Inc., 1430 Broadway, New York, 

New York 10018, or may be examined in any Metal 

and Nonmetal Mine Health and Safety District or 

Subdistrict Off ice of the Mine Safety and 

Health Administration. 

PERMISSIBLE NOISE EXPOSURES 

Duration per day, 

hours of exposure 

Sound level dBA, 

slow response 

. 8 . . . . . . . . . . • . 90 

6 . . . . . . . . . . . . 92 

4 . . . • . . . . . . 95 

3 . . . . . . . . 97 

2 . . . . . . . . . . . .10 a 

1-1/2 • • ••.•••.• 102 

1 . . . . . . . . . . . .10 5 

1/2 • • • • • • .110 

1/4 or less • • • . .115 

LU7 
No exposure shall exceed 115 dBA. Impact or 

impulsive noises shall not exceed 140 dB, peak 

sound pressure level. 

NOTE. When the daily exposure is composed of two or more periods of noise exposure 

at different levels, their combined effect 

shall be considered rather than the individual 

effect of each. 

If the sum 

exceeds unity, then the mixed exposure shall 

be considered to ,exceed the permissible exposure Cn indicates the total time of exposure 

at a specified noise level, and Tn indicates 

the total time of exposure permitted at that 

level. Interpolation between tabulated values 

may be determined by the following formula: 

log T = 6.322 - 0.0602 SL 

Where T is the time in hours and SL is 

the sound level in dBA. 

Cb) When employees' exposure exceeds 

that listed in the above table, feasible administrative or engineering controls shall ~e 

utilized. If such controls fail to reduce 

exposure to within permissible levels, personal protection equipment shall be provided 

and used to reduce sound levels to within the 

levels of the table. 

Stipulations 

The parties stipulated to the following (Tr. 6-8): 

1. The respondent's products affect 

commerce and the respondent is subject to the 

jurisdiction of the Act and this Commission. 

2. The respondent's size as stated in 

terms of annual man-hours worked is 129,227 

production tons or man-hours worked, and the 

size of the respondent's Van Horn White Marble 

Mine is 11,385 productions tons or man hours. 

1138 
3. The total number of MSHA inspection 

days at the mine in question during the 

24-months preceding the issuance of the citation in this case is 27, and during this time 

period the respondent was issued civil penalty 

assessments for three violations. 

4. The imposition of a civil penalty 

assessment for the violation in issue in this 

case will not adversely affect the respondent's ability to continue in business. 

5. On February 7, 1985, MSHA Inspector 

David Lilly conducted an inspection of the 

subject mine and issued a citation alleging a 

violation of mandatory standard 30 C.F.R. 

§ 57.5-50(b). At the time of the inspection, 

personal hearing protection was being worn by 

the drill operator. 

Discussion 

Section 104(a) Citation No. 2236193, February 7, 1985, 

cites an alleged violation of 30 C.F.R. § 57.5-50Cb), and the 

cited condition or practice is described as follows: 

The full shift exposure to mixed noise 

levels of the 12 EH LeRoi. drill operator in 

the south central heading exceeded unity 

Cl00%) by 235.9 times (235.9%) as measured 

with a dosimeter. This is equivalent to an 

8 hour exposure of 96 dBA. Personal hearing 

protection was being worn. 

The inspector fixed the abatement time as February 21, 

1985, and on April 25, 1985, he extended the abatement time 

to May 4, 1985, and noted as follows: 

The operator has done several things to 

try to engineer out the noise, moving the compressor, shielding the drill rotation head and 

changing bits more often. SLM survey of 

30 min. showed the drill opr. to still be out 

of compliance. A partial dosimeter survey 

avg. (sic) out to· confirm the SLM. The operator plans to do more engineering on the drill 

to further reduce the noise level. 

1139 
f 

on June 6, 1985, the inspector extended the abatement 

time further to September 3, 1985, and noted as follows: 

The operator stated that he had called 

the manufacturer of the LeRoi 12 EH drill for 

sound reduction instructions and the engineer 

for the manufacturer had told him there were 

no engineering controls to reduce the noise, 

that they had incorporated all technology 

available during construction of same, and 

would send a letter to MSHA from the manuf acturer .stating this. Denver Technical Support 

for MSHA was contacted by Sidney Kirk and was 

told by them that the noise could be reduced 

and that they would come to the mine and 

provide assistance. 

on August 27, 1985, the inspector extended the abatement 

time to October 7, 1985, and noted that "The mine was not in 

operation, a resurvey for mixed noise of the 12 EH LeRoi 

drill operator could not be made." 

On November 7, 1985,the inspector extended the abatement 

time to January 10, 1986, and noted that "The Denver Technical 

Support Group is scheduled to assist during that week to 

attempt to reduce the noise exposure." 

On January 7, 1986, the inspector extended the abatement 

time to January 31, 1986, and noted as follows: "On 

January 7, 1986, some tests were made and simulated structures positioned and did show a substantial reduction in the 

drill operator position to noise. Additional time is needed 

for the operator to construct the protective barrier on the 

drill." 

on February 4, 1986, the inspector extended the abatement time to March 31, 1986, and he noted that "The protective barrier has been completed on the drill. Additional 

time is needed for Denver Technical Support to do a noise 

study." 

On April 15, 1986, the inspector terminated the citation, and he noted as follows: 

On April 15, 1986, a resurvey of noise on 

the stated drill was conducted by the Denver 

Technical Support Group. A reduction of noise 

exposure of 5 dBA had been accomplished. There 

is no further engineering control available at 

1140 
this time. However, hearing protection must 

still be worn to prevent the driller from 

over-exposure. 

MSHA's Testimony and Evidence 

MSHA Inspector David P. Lilly testified as to his background, experience, and training, and confirmed that in 

addition to his regular mine inspections, he conducts approximately 15 to 20 noise surveys a year as part of his ~nspections. He explained the use of a dosimeter, and confirmed 

that he conducted an inspection of the mine on February 7, 

1985, and that he took a noise survey that same day. After 

calibrating the dosimeter testing devices, they were installed 

on a truck driver who hauled material from the underground 

mine to the crusher, and on the LeRoi drill helper who was 

assisting the driller underground. Mr. Lilly described the 

drill as an air percussion drill used to drill vertically and 

horizontally. 

Mr. Lilly stated that during the noise survey period he 

took periodic sound level meter readings with a testing device 

that reads out in decibels rather than in percentages and that 

he recorded the results. A~ the end of the day, his sound 

level meter readings confirmed the results of the dosimeter 

test results which reflected that there was an over-exposure 

to noise. The dosimeter readings were considerably over the 

allowable noise exposure of 90 decibels for an 8-hour period 

of exposure (Tr. 11-17). 

Mr. Lilly confirmed that during the survey shift in question, the drill helper and operator continually wore Wilson 

"muff-type" hearing protection. However, the protectors were 

old and worn, and since the identification numbers were worn 

off, it was difficult to ascertain whether or not they were 

MSHA approved protectors. Mr. Lilly also confirmed that on 

the basis of his 14 years of experience as an underground 

miner, and statistics, a continual over-ex_l)osure of noise 

levels in excess of 90 decibels will .eventually cause hearing 

deterioration to a point where there will be a complete loss 

after time. He stated that when he worked as a miner, 

personal hearing protection was not available, and that he 

suffers from a loss of hearing (Tr. 18). 

Mr. Lilly confirmed that he discussed possible solutions 

to reduce the noise level of the drill with mine superintendent Carl Schiller, and recommended that the air lines to a 

large compressor located 20 feet from the drill be extended 

so as to move the compressor as far away from the drill as 

1141 
possible. The compressor was a source of "a tremendous 

amount of noise." Mr. Lilly also recommended that dull drill 

bits be replaced with new ones so as to reduce the noise (Tr. 

19). Mr. Lilly confirmed that he made several follow-up 

visits to the ·mine to monitor the noise levels and extended 

the abatement times while the respondent attempted to reduce 

the noise levels through engineering and contacts with the 

dril],. manufacturer (Tr. 21). After further discussion·s with 

his supervisor, it was decided to contact MSHA's Denver 

Technical Support Group to assist the respondent in finding 

solutions to the drill noise levels. The technical group had 

prior experience with air track drills and were able to get 

substantial noise reductions in similar drills at other operations. Since he was reassigned to another inspection area at 

the time the technical support group surveyed the drill 

noise, he had no personal knowledge of the detailed results 

of MSHA's further testing, but did understand that a reduction in the drill noise level was achieved (Tr. 23). · 

On cross-examination, Mr. Lilly confirmed that he had 

inspected the mine in question since the latter part of 1982, 

and he recalled an old drill that was used outside, but he 

never observed it in operation. The LeRoi drill which he 

observed in use underground during his February 7, 1985, 

inspection was "in real good shape like it was fairly new" 

(Tr. 25). 

Mr. Lilly confirmed that the mine in question is a marble 

mine, and it is the only mine of this kind in his inspection 

area. He stated that the cited drill is used "off and on" 

during the working shift, but this makes no difference since 

his noise survey is taken over a full 8-hour shift and the 

dosimeter averages the noise exposure over the full 8-hour 

working period. Mr. Lilly confirmed that his noise survey on 

February 7th was the first one he has conducted at the mine, 

and he could. not state whether prior surveys had been made by 

MSHA. He was· not aware•.of any prior noise citations served on 

the respondent during the time it has operated the, mine (Tr. 

27-28). 

Mr. Lilly confirmed that the white marble mine in question is worked by six employees, and he compared it to a small 

underground potash mining operation. He also confirmed that 

the respondent uses the same employees to work its open pit 

mines at Eagle Flats (Tr. 30). Since he transferred out of 

the area when MSHA's technical support group came in, 

Mr. Lilly could not state the engineering and production 

costs of the noise shield which was constructed to alleviate 

1142 
the noise level, nor could he state the number of hours spent 

by the technical staff in developing the shield (Tr. 30). 

In response to further questions, Mr. Lilly described 

the LeRoi drill as a large track mounted piece of machinery, 

and he stated that the operator stands at the control station 

while operating the drill boom. He confirmed that the drill 

operator is positioned further back from the drill helper who 

cleans and collars the drill steel. He confirmed that only 

the drill helper was surveyed with a dosimeter because he 

spends more time in the area where the actual drilling is 

performed. However, on subsequent noise surveys, he would 

probably test the drill operator and a loader operator, and 

he tries not to survey the same individual again (Tr. 33-35). 

Mr. Lilly confirmed that the drill is also used for 

scaling loose material, and that over an 8-hour shift the 

drill is in operation for approximately 4 to 5 hours (Tr. 36). 

Mr. Lilly also confirmed that the results of his noise survey 

on February 7th indicated that the drill noise exposure was 

235.9 percent over the allowable limit, and that this translates into a noise exposure average of 96 dBA's, or 6 dBA's 

over the allowable limit of 90 dBA's over the full shift 

noise survey period (Tr. 38-39). Mr. Lilly identified the 

noise sources as the drill and the compressor. The resulting 

noise levels to which the employees are subjected are high 

frequency directional noises -coming from the air hammer and 

the "ringing" of the rotating steel drill bits, and if one 

were to place a barrier between the employees and the noise 

source, a small reduction in the noise will result (Tr. 39). 

The noise survey is based on a particular occupation and 

takes into account the normal required duties of the person 

being tested at any given time. In the instant case, a determination was made that the drill and compressor were the main 

sources of noise exposure to the area where the drill helper 

was required to work (Tr. 41). ' 

Mr. Lilly stated that his experience with similar drill 

shielding devices in connection with MSHA's technical support 

at another mining operation confirmed that such devices 

effectively result in a great reduction of the drill noise 

exposure. In his opinion, shielding devices are practical at 

the respondent's mining operation and they do not hamper the 

operator's ability to drill or control the drill (Tr. 42). 

Mr. Lilly conceded that while his citation makes reference to a drill "operator," the noise survey results are 

equally applicable to the drill helper because both individuals alternated at both occupational positions and the actual 

1143 
noise tests were conducted on the drill itself (Tr. 45). The 

work sheet and notes which accompanied the citation state that· 

two individuals were exposed to the drill noise, and this 

would include both the drill operator and the helper because 

they alternately operate the drill, and his sound level meter 

reading were taken around the drill areas, including the control station, and they were all over 100 decibels (Tr. 48). 

Thomas M. Lloyd, Physicist, MSHA Safety and Health 

Technology Center, Denver, Colorado, testified as to his 

education a.nd experience, and confirmed that his work 

includes testing noise levels, designing engineering noise 

controls and modifications, and retesting such controls to 

assure positive results~ He confirmed that during his 

7 years of employment with MSHA he has been personally 

involved in conducting 15 noise surveys a year. He has also 

been involved in at least 10 noise control modifications for 

underground drill machines, and he confirmed that MSHA performed technical assistance noise and engineering control 

surveys at the respondent's mine in January and April, 1986, 

and he identified exhibits G-4 and G-5, as MSHA's reports and 

recommendations concerning its technical assistance (Tr. 

82-87). 

Mr. Lloyd explained what takes place during his technical 

assistance visits to mines, and he confirmed that exhibit G-4 

is the report he prepared with respect to his January 6-8, 

1~86, visit to the mine in question. He confirmed that a 

two-side temporary noise barrier was constructed out of plywood as a diagnostic procedure, and when the noise level was 

tested with the barrier in place, a reduction in noise 

resulted, and he concluded that if a permanent shield was constructed for the drill in question, there would be some noise 

reduction generated CTr. 87-90.). · 

Mr. Lloyd confirmed that the April 8, 1986, survey and 

follow-up noise measurements were made by another member of 

his MSHA group, and he identified photographs of the shielding 

device constructed out of panels of safety glass mounted on a 

wooden frame (exhibit G-5; Tr. 91). Mr. Lloyd stated that the 

shielding device creates an acoustical "shadow zone" for the 

person standing behind the shield, and it serves to interrupt 

the noise between the operator and the drill (Tr. 91). He 

confirmed that such partial barrier noise control treatments 

for drilling machines have been used successfully in at least 

10 other underground mines (Tr. 92). 

Mr. Lloyd stated that he made it clear to the respondent 

that his services were available to help in the construction 

1144 
of the barriers for the drilling machine in question, and he 

estimated that the cost for the wooden frame and safety glass 

materials to construct the barrier would be "in the area of 

$300," plus the labor to construct it {Tr. 93). 

Mr. Lloyd stated that the partial barrier shield constructed with some scrap plywood during his January, 1986, 

survey resulted in drill noise reduction at that time, and 

when the final barrier was constructed and installed, MSHA's 

follow-up survey reported in April, 1986, indicated a measured drill noise reductibn of five decibels. He described 

the method for testing the noise levels utilizing the shield 

and indicated that the test results are compared with the 

noise level readings taken before the shield was in place 

{Tr. 93-95). He stated that all of the noise exposure·that 

was generated during the surveys in this case was generated 

from the drill machine itself {Tr. 94). Mr. Lloyd confirmed 

that other than the barrier shield which has been constructed 

and installed on the drill in question, nothing further can 

be done at this time to reduce the noise exposure, and no 

further drill changes are required at this time {Tr. 97). 

On cross-examination, Mr. Lloyd reiterated that there is 

no other feasible control to reduce noise exposure other than 

the noise control shield that has been installed on the LeRoi 

drill in question {Tr. 97). He also reiterated that MSHA's 

Denver Safety and Health Technology Center offers free engineering consultant service to the mining industry to help 

keep the costs down {Tr. 99). Mr. Lloyd stated further as 

follows {Tr. 100-101): 

Q. You have heard testimony that the operator 

of the drill is required to go outside of the 

barrier to clean off the glass. 

A. Uh-huh. 

Q. And based on that, do you still feel that 

the feasibility and the effectiveness of this 

barrier is valid? 

A. Yes, and there are several reasons I feel 

that. First of all, it has been done several 

other places in other mines and worked ef f ecti vely, using glass barriers, and we have --

the feedback that I have gotten from the other 

projects I have worked on is that it is somewhat of a nuisance and certainly an additional 

responsibility for the operator to keep the 

1145 
glass clean, but in general a bottle of Windex 

or some cleaner of that sort is sufficient to 

keep it clean. 

Q. And.did you make any notations about this 

operation relative of the levels of dust and 

mud splattered as compared to these other 

places you have visited? 

A. There is -- all I really have to go by are 

the pictures that we have shown in the report, 

because I was not in that follow-up survey, 

but I would say it was comparable to other 

places we have seen situations of that degree. 

And, at (Tr. 105-106): 

' Q. I'm still not sure I understand why you 

are satisfied with this -- at this particular 

moment in time. 

A. Okay. I feel that the control as installed 

has met the requirements -- my personal requirements -- my definition of feasibility~ and that 

is that noise control has provided a substantial noise reduction. A 5 decibel noise reduction will reduce the noise level -- or noise 

exposure in half for the time spent behind the 

shield, so it provides significant noise 

reduction. 

It also was constructed -- or could.have 

been constructed using a minimal amount of 

money. It is not -- whether the company 

decided to use technical support assistance in 

constructing the shield or not was their 

decision, but the amount of money spent could 

have been minimizea to somewhere in the order 

of $300, and so economically I feel it is 

feasible. 

And discussions with the drill operator 

at the time I made the initial determination 

of the two-sided shield indicated that there 

would not be a problem with constructing the 

shield as we had laid it out. And, I might 

add, that we purposely left the top of the 

shield open -- or· I am sorry -- we did not put 

a roof on top of that enclosure because when 

1146 
you are drilling in the vertical position he 

needed to see the top of the drill, so we left 

that -- that was a further addition that we 

had considered and decided not to go with 

that. 

Q. Then it is your position then that this 

was an inexpensive improvement so long as MSHA 

provides physicists to do the engineering? 

A. Well, yes, and we did. 

With regard to the use of personal hearing protection, 

Mr. Lloyd stated as follows (Tr. 128-129): 

THE WITNESS: That is correct. The noise 

one of my points was that the amount of noise 

reduction provided by the hearing protection 

is almost random. It is just so variable that 

it is very, very difficult to protect that. 

We are using hearing piotection as a last --

you know, it is the absolute last thing that 

we could think of that would do any good at 

all. 

To rely on hearing protection as -- to 

give a predicted amount .. of noise reduction 

just -- it is just not reasonable based on the 

tests. We have made over 200 te~ts of ear 

muff type protectors in the field, and our 

concern is that people will be relying on hearing protection to drop the noise level to that 

last wnatever number you want to pick. 

When you design an engineering control, 

it is fixed on the machine, and any time spent 

behind that will lower his average daily noise 

exposure. It would be real unlikely to go 

back and sample that person for all day and 

come out higher or the same then -- it may not 

be 5 decibels lower, but it is bound to be 

somewhat lower. 

And my point is, given that that hearing 

protection is unpredictable in its ability to 

reduce noise for the operator, the engineering 

work, in conjunction with the hearing protection, seems to be the most reasonably wa~ to 

approach it. 

1147 
Mr. Lloyd confirmed that he is not aware of any drills 

on the market which are available, as manufactured, that will 

bring the respondent into compliance with the 90 dBA requirement of the standard. In order to achieve compliance, or 

attempt to do so, an operator must modify any drill that it 

purchases, or the manufacturer must make certain modifications, and MSHA is available to assist with the design of a 

suitable engineering noise control (Tr. 142-143). 

Respondent's Testimony and Evidence 

Joe R. Williams, respondent's general manager and president, testified as to the scope of his mining operations, and 

confirmed that the van Horn, Texas White Marble Mine is the 

only underground mine which he operates. Mr. Williams also 

confirmed that six employers, including superintendent Carl 

Schiller, work at the mine, as well as at two other surface 

mining locations (Tr. 49-53). 

Mr. Williams confirmed that the cited LeRoi hydraulic 

track drill is in use at the subject mine, and that prior to 

the use of that drill, a LeRoi air track drill and a 

Gardner-Denver track drill were used. The air track qrills 

were very noisy in comparison to the hydraulic drill 

currently in use. Mr. Williams identified copies of three 

invoices reflecting the purchase and trade-in of the drills 

which he referred to, and he confirmed that the cited drill 

was purchased in November, 1983 Cexhibit·R-1, Tr. 58). 

Mr. Williams identified a copy of a letter dated May 24, 

1985, after the citation was issued, received by Mr. Schiller 

from the Chief Engineer, LeRoi Division, Dresser Industries, 

concerning the cited drill, and it states as follows (exhibit 

R-2, Tr. 59): . 

I enjoyed discussing the very interesting 

aspects of your LeROI hydraulic drill rig 

application last week. I regret that we could 

not be of more help to you in complying with 

MSHA noise level requirement of 90 dBA, 8 hour 

average for operator. 

We are required by EPA to silence portable 

compressors; but as you know, there is presently no national requirement for rock drills. 

I believe federal legislation on noise purposely avoided restrictive rules on rock 

drills because of the lack of any feasible 

1148 
means to implement. Many rock formations like 

your marble can only be penetrated economically 

by percussion drilling means. Percussion 

drilling is by nature very noisy. 

Over the years we and others have experimented 

with various schemes to reduce percussion 

drill noise. Perhaps the biggest advance made 

in this direction was the development of the 

hydraulic actuated hammer which completely 

eliminated the pneumatic bark of pulsating and 

expanding air from the machine cylinder. Even 

with this advantage which you are utilizing, 

the impulsive energy generated still has to 

travel down the steel to bit to do any work. 

Noise emanating from the rapidly struck drill 

steel is, of course, the principal remaining 

sound source and we have found no commercially 

feasible way to control it. Various forms of 

telescoping enclosures and vibration dampers 

have yielded marginal improvements but have 

been, in general, too cumbersome and unreliable 

to allow reasonable ~roduction l~vels. 

On applications we have been involved with, 

earmuffs and other personal ear protection 

have satisfied local special requirements. 

Mr. Williams also identified a copy of a letter dated 

June 7, 1985, from Mr. Schiller to Inspector Lilly, forwarding 

a copy of the Dresser Industries letter, and it states as 

follows (Tr. 59): 

We are using a LeROI 12 EH drill with a LeROI 

175 compressor. We have attempted twice to 

reduce noise but failed to bring this machine 

into compliance. Please note paragraphs three 

and four in the attached lett~r in relation to 

citation #2236193 issued February 7, 1985 and 

extended April 25, 1985. 

We would like to have this citation extended 

until suitable engineering controls are 

invented. 

We have an existing personal protective equipment program requiring drillers and drillers 

1149 
helpers to wear EAR (brand) plugs or David 

Clark Company Model lOA hearing protectors. 

Mr. Williams identified a photograph of the cited drill 

in question, ·and a photograph of the drill as modified by the 

noise shield recommended by MSHA's technical support group 

CTr. 61, exhibits R-3, R-4). 

Mr. Williams could not state whether prior MSHA noise 

citations have ever been issued at the mine, and he stated 

that "those drills are out of compliance with the regulation, 

and always have been and always will be" (Tr. 64). He confirmed that protective ear muffs or ear plugs have always 

been worn by his employees since he began his mining operation CTr. 64). He stated that the drill operator and helper 

are behind the noise shield only when they are at the controls, and he describe0 their duties with respect to the 

drilling operation (Tr. 64-66). He confirmed that the sum 

total of the noise emanating from the operation of the drill 

includes noise from the compressor, the hydraulic mechanism 

engine, and the percussion of the steel drill as it drills 

into the formation, and that the greater noise comes from the 

steel drill CTr. 66). 

Mr. Williams stated that the glass panes on the noise 

barrier accumulate mist and dust and need to be wiped off, and 

that in certain drilling positions, the barrier creates some 

handicap. Mr. Williams could not state how much time MSHA's 

engineering staff spent on developing the barrier, and while 

he had no accurate answer as to what it cost his company to 

construct the barrier, he stated that "it cost several 

thousand dollars of time, personnel's time" (Tr. 67). He 

confirmed that Mr. Schiller, who is a mining engineer, constructed and mounted the barrier on the drill (Tr. 68). 

On cross-examination, Mr. Williams stated that while·he 

was never a miner, he h~s had 25 years of experience in the 

"engineering field;" and that his personnel have attended 

various MSHA training schools (Tr. 69). Mr. Williams confirmed that he has discussed the drill noise problem with 

Mr. Schiller a number of times, and he considers Mr. Schiller 

to be a conscientious and good engineer. However, they could 

not come up with any solutions, and Mr. Williams does not 

believe that MSHA's solution with respect to the noise barrier 

device "is worth a damn" (Tr. 71). 

In response to further questions, Mr. Williams stated 

that he traded in the air drill for the cited hydraulic drill 

because the hydraulic is far less noisier and is less costly 

1150 
to terms of maintenance. He did not believe that t.ht: 

hydraulic drill was tested for noise when he received it 

because everyone knew it was inherently noisy and used ear 

plugs when it was operated (Tr. 73). However, if a less 

noisier drill that meets the noise regulations comes on the 

market, he would purchase one (Tr. 75). 

Mr. Williams stated that he was not too enchanted with 

MSHA's recommended noise shielding device because "it is kind 

of awkward, ••. and according to Carl Schiller, he says it 

really doesn't make but about one decibel difference." 

Mr. Williams does not believe that the device is a good noise 

deterrent, and in his opinion, MSHA's reported 5 decibel 

noise reduction with the use of the barrier "is questionable" 

(Tr. 75). He confirmed that the drill operator still wears 

the protective ear muffs (Tr. 75). 

Mr. Williams conceded that the expense of constructing 

the barrier in question was a one time expense, and that it 

was installed only on the cited drill. He expressed some 

concern over what the future will bring, and whether or not 

MSHA will at some later time require him to install otQer 

noise devices to achieve compliance. When asked whether 

there was a problem with amortizing the cost of the noise 

shield, while at the same time "keeping MSHA happy, 11 

Mr. Williams responded "I have no objection to that. We did 

it • • • we spent the money. Now if they are satisfied, it 

would tickle me" (Tr. 76). 

Discussion 

In MSHA v. Callanan Industries, Inc., 5 FMSHRC 1900 

(November 1980), an inspector cited a sand and gravel mine 

operator with a violation of 30 C.F.R. § 56.5-50, a noise 

standard ideptical to that found in section 57.5-50, after 

conducting an 8-hour dosimeter noise survey on an air track 

drill used in a stone quarry. At the time of the survey, the 

drill operator was wearing ear muffs, but the survey results 

showed that for the 8-hour shift, the operator of the drill 

was exposed to 103.6 dBA, the equivalent of 660 percent of 

the 90 dBA. permissible noise exposure level established by 

the standard. 

After the citation was issued, an engineer from MSHA's 

Pittsburgh Technical Support Center conducted a noise survey 

on the air track drill for the purpose of suggesting noise 

controls. Subsequently, MSHA suggested that the drill 

cylinder be modified to accommodate a muffler, and stated 

that Callanan could either purchase a muffler commercially or 

1151 
constr~ct one itself. MSHA concluded that the attachment of 

a muffler would result in a noise reduction of approximately 

5 dBA, and it estimated the cost at $2,672.78. Callanan took 

the position that the proposed drill shell modification was 

not feasible because it was too costly to transport the drill 

for retrofitting, and it stated that the drill in question 

was valued at under $2,500. MSHA took the position that the 

proposed engineering control was feasible because it was both 

technologically achievable and reasonable from a cost 

standpoint.· 

The judge held in Callanan's favor and vacated the citation. He found that the MSHA's cost estimate with respect to 

the engineering control was "too imprecise to allow a proper 

economic analysis," and he found no "reasonable assurance 

that there would be an appreciable and corresponding improvement in working conditions as a result of the proposed 

controls." · 

The Commission reversed, and rejected any notion that a 

"cost-benefit analysis," as that term is commonly understood 

and used, is the appropriate analytical method for determining 

whether a noise control is required. The Commission construed 

the term "feasible" as "capable of being done," and it concluded that the determination of whether use of an engineering 

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

capable of being done involves consideration of both technological and economic achievability. In allocating the burdens of 

proof required to make this determination, the Commission 

offered the following guidelines at 5 FMSHRC 1909: 

[I]n order to establish his case the Secretary 

must provide: Cl) sufficient credible evidence 

of a miner's exposure to rioise levels in excess 

of the limits specified in the standard; (2) 

sufficient credible evidence of a technologically achievable engineering control that could 

be applied to the noise source; (3) sufficient 

credible evidence of the reduction in the noise 

level that would be obtained through implementation of the engineering control; (4) sufficient 

credible evidence supporting a reasoned estimate of the expected economic costs of the 

implementation of the control; and (5) a reasoned demonstration that, in view of elements 1 

through 4 above, the costs of the control are 

not wholly out of proportion to the expected 

benefits. After the Secretary has established 

each of the above elements, the operator in 

1152 
rebuttal may refute any of the components of 

the Secretary's case. 

In Todilto Exploration and Development Corporation v. 

MSHA, 5 FMSHRC 1894 (November 1983), an inspector cited a 

violation of 30 C.F.R. § 57.5-50(b), after conducting an 

8-hour noise survey with a dosimeter on a jackleg percussion 

rock bolt drill in an underground uranium mine and finding 

that the drill operator was exposed to 114 dBA. The drill 

operator was wearing ear plugs and muffs, and the drill was 

not equipped with a muffler. The violation was abated by the 

installation of a muffler on the drill. However, subsequent 

noise readings with a sound level meter showed that excessive 

noise levels still existedi and the readings established that 

the drill operator's average noise exposure levels ranged 

between 110 dBA and 113 dBA. Even though Todilto attached a 

muffler to the drill, the drill operator was still required 

to wear personal protective equipment. 

The judge found that the drill operator was exposed to 

an excessive noise level, and although he also found that 

MSHA established that the installation of the muffler was an 

engineering control available to Todilto, since the exposure 

to noise was still not within permissible levels as required 

by the regulation, even wfth the muffler attached, the judge 

concluded that the installation of the muffler was not a 

feasible engineering control, and he vacated the citation. 

On appeal, the Commission reversed and stated as follows _at 

5 FMSHRC 1896-1897: 

[W]e hold that a control may inqeed be "feasible" within the meaning of 30 C.F.R. 

§ 57.5-50(b) even though it does not reduce 

the miner's exposure to noise to permissible 

levels set forth in subsection Ca} of the standard. Our holding is based upon the express 

wording of the noise standard. Section 

57.5-SO(b) unambiguously provides that when 

excessive noise exposure levels exist, "feasible administrative or engineering controls 

shall be utilized." It continues, "[i]f such 

[feasible] controls fail to reduce exposure to 

within permissible levels, personal protection 

equipment is to be provided and used •••• " 

(Emphasis added). Thus, the noise standard 

clearly contemplates that in a given case a 

control might not reduce the noise exposure 

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

ll53 
implemented. To allow a mine operator to 

proceed directly to the use of personal protective equipment and thereby avoid implementing 

otherwise feasible administrative or engineering controls, solely because use of the controls themselves does not achieve permissible 

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

excessive noise levels first be addressed at 

their source. we note that under the judge's 

approach a control that reduces the level of 

noise from 114 dBA to 91 dBA (on the basis of 

an 8-hour exposure period) would not be 

feasible simply because it fails to reduce the 

noise level to 90 dBA. we find no support for 

this result in the standard. 

Upon remand of the Callanan case, the parties agreed-to 

settle the matter, and the operator paid a $78 civil penalty 

assessment for the noise violation in question, 6 FMSHRC 139 

(January 1984). 

The Todilto case was remanded for the judge's determination as to whether or not MSHA proved a violation of section 

57.5-50(b) for failure by the operator to implement a feasible engineering control within the parameters of the 

Commission's guidelines as enunciated in Callanan, supra. On 

April 17, 1984, the judge issued his decision and found that 

MSHA had established that the drill operator was exposed to 

an excessive noise level, that the muffler was a technologically achievable engineering control capable of reducing the 

drill operator's noise exposure, and that the·cost was not 

unreasonable for the benefits achieved. The judge found that 

Todilto was in violation of section 57.5-50Cb), and stated in 

pertinent part as follows at 6 FMSHRC 934 (April 1984): 

Therefore, based upon the credible evidence in this.case; and the Commission's 

decision in Callanan, I find that the Secretary 

has proven the respondent violated mandatory 

standard § 57.5-50(b) by failing to implement 

the feasible engineering control (muffler) 

which was available to it. The fact that the 

muffler did not reduce the noise level to that 

required by the standard is not a proper reason 

for an operator to avoid the control and go 

directly to personal protection equipment. The 

standard contemplates the use of such personal 

equipment only after all other ''feasible" 

1154 
engineering controls are installed to achieve 

the best results possible. 

In MSHA v. Landwehr Materials Inc., 8 FMSHRC 54 (January 

1986), Judge Broderick affirmed a citation for a violation of 

section 56.5-50(b), after finding that a shovel operator at a 

limestone quarry who was wearing personal hearing protection 

was exposed to a 96 dBA noise level for an 8-hour shift. 

After the termination date for the citation was extended, 

MSHA's Denver Technical Support Group performed a noise control survey which showed that the noise level in the shovel 

operator's environment was reduced by approximately 33 percent, from an average of 101 to 98 dBA, when a vinyl curtain 

was installed between the shovel operator and the engine 

compartment of the shovel. While significant, this reduction 

did not bring the noise level down to the permissible 90 dBA 

specified in the cited standard, and personal protection 

equipment was still deemed necessary. Judge Broderick found 

that the installation of the vinyl curtain was a feasible 

engineering control available to reduce the operator's noise 

exposure, and that Landwehr's failure to utilize this 

feasible noise control constituted a violation of section 

56.5-SO(b). 

MSHA's Arguments 

During oral argument at the hearing, petitioner's counsel 

asserted that the respondent must use those available technologically feasible engineering controls to reduce the noise 

level as much ·as possible before resorting again to personal 

hearing protection CTr. 78). Counsel maintained that on the 

facts of thi~ case, the petitioner has established a prima 

facie violation of section 57.5-50(b) by the respondent 

pursuant to the guidelines established by Callanan Industries, 

Inc. and Todilto Exploration and Development Corporation, 

supra. Coun~el asserts that petitioner has established that 

miners were over-exposed to the drill noise, that there was a 

technologically available engineering control, and that a 

~technical violation" of the cited standard has been established (Tr. 140-141; 14~). Counsel concluded that since the 

inspector modified the citation to delete his "significant and 

substantial" CS&S) finding, "the references in regard to negligence are no longer a part of the citation" (Tr. 150). 

Respondent's Arguments 

During oral argument at the hearing, respondent's counsel 

conceded that the cited drill was out of compliance with 

MSHA's noise requirements limiting the noise exposure to 

1155 
90 dBA's over an 8-hour work shift· (Tr. 139-140). However, 

counsel took the position that the respondent did what it 

could to reduce the drill noise, and he expressed concern 

that even though MSHA concedes that even with the use of the 

noise barrier, there are no additional feasible engineering 

controls available to further reduce the noise, other inspectors in the future may require the respondent to use additional controls to achieve total compliance (Tr. 138). 

Counsel asserted further that while it has received prior 

citations for noise violations, it has required its employees 

to wear personal hearing protection, purchased a quieter 

drill, and consulted with the drill manufacturer in order to 

achieve compliance (Tr. 146-147). Considering these pa~t 

compliance efforts, counsel took the position that it was in 

compliance with the intent of the standard and was not negligent, and he preferred that MSHA issue some sort of "warning" 

or advice to the respondent as to how to continue in compliance, rather than issuing citations and seeking civil penalty 

assessments (Tr. 147-148). Counsel believes further that 

since MSHA has established that no further feasible engineering controls are available, the citation should have been 

withdrawn (Tr. 149-150). 

Findings and Conclusions 

The respondent in this case is charged with a violation 

of the noise exposure requirements of mandatory standard 

30 C.F.R. § 57.5-50(b), for exceeding the noise exposure level 

for the operator of a LeRoi 12 EH hydraulic track mounted 

drill which was in use underground at the mine. Although the 

citation makes reference to the "drill operator," Inspector 

Lilly explained that the results of MSHA's noise surveys are 

equally applicable to the drill operator and drill helper 

because they essentially occupy the same occupational position, alternate their work during a normal work shift so that 

each individual functions at any given time as both the drill 

operator and helper, that they are both exposed to the same 

noise levels emanating from the drill, and that the noise 

tests and surveys measured the noise exposure from the drill 

and its components. 

The essential facts in this case are not in dispute. 

Although the respondent's original answer denies that a violation occurred, the respondent has not rebutted the petitioner's credible evidence and testimony establishing that 

the drill in question is out of compliance with the applicable cited noise standard. As a matter of fact, respondent's 

general manager and president Joe Williams candidly conceded 

that the cited drill is out of compliance with the cited 

1156 
noise standard, and "always will be." Further, during the 

course of the hearing, respondent's counsel, who happens to 

be Mr. Williams' son, conceded that the drill is out of compliance with the required 90 dBA noise exposure level over an 

8-hour shift (Tr. 139-140). Under the circumstances, I conclude and find that the petitioner has established by a preponderance of the credible evidence in this case that the 

noise exposure resulting from the underground operation of 

the cited drill was in excess of the permissible limitation 

of 90 dBA, and that the drill operator and helper were 

exposed to an excessive noise ·1evel amounting to a noise dose 

over an 8-hour period which was 235.9 percent in excess of 

that permitted by the standard, resulting in an average 

8 hour noise exposure of 96 dBA's. Accordingly, I further 

conclude and find that the petitioner has satisfied the 

initial requirements enunciated by the Commission in Callanan 

Industries, Inc., supra, and has presented sufficient credible evidence of min~r exposure to noise levels in excess of 

the limits specified in the standard. 

The next consideration is whether the petitioner has 

presented credible evidence as to the availability of a 

technologically achievabl~ engineering control capable of 

reducing the drill operator or helper's exposure to excessive 

noise. The facts show that after the citation was issued, 

and during the extended abatement period, the respondent 

attempted to reduce the drill noise exposure by moving t.he 

compressor, shielding the drill rotation head, and changing 

the bits more often, all to no avail. In addition, the 

respondent consulted with the drill manufacturer, only to be 

told that all available technology to reduce the drill noise 

had been incorporated into the drill during its construction, 

and that no additional engineering controls were available 

for noise reduction on the drill as manufactured. 

Subsequent to the respondent's efforts at reducing the 

drill noise levels, MSHA provided technical assistance to the 

respondent as testified to by Mr. Lloyd, and as reflected in 

his report prepared jointly with MSHA Safety and. Health 

Specialist Donald D. Rapp (exhibit G-4), as well as in a subsequently issued report prepared by MSHA General Engineer 

Richard J. Goff (exhibit G-5). The evidence shows that as a 

result of Mr. Lloyd's technical assistance, which included 

the construction of a prototype noise barrier from scrap plywood to form a barrier between the drill operator and the 

face where the drill cut into the material being mined, the 

noise levels dropped. Following Mr. Lloyd's recommendations, 

the respondent subsequently fabricated a two-sided barrier 

from plywood and tempered safety glass, and it was installed 

1157 
on the drill. Mr. Goff's report reflects that the recorded 

drill noise levels before and after the installation of this 

barrier showed a reduction of 5 dBA's in the drill noise 

level, and he concluded that there was no additional suitable 

treatment for the drill. He also concluded that personal 

hearing protection was still needed, and that with the 

installation of the barrier, the personal protection .would be 

more effective against the lower noise levels resulting from 

the use of the barrier. 

Inspector Lilly testified that in his experience with 

similar shielding devices at another mining operation, they 

have proved to be effective in reducing drill noises. He 

also believed that the barrier in question is a practical 

method for reducing noise exposure and that it does not 

hamper the drill opera~or's ability to drill or control the 

drill. Mr. Lloyd confirmed that the use of similar glass· 

barriers have proved effective in the past, and while some of 

his "feedback" reflects that keeping the glass clean may be a 

nuisance, it can be kept clean by the operator. Mr. Lloyd 

also confirmed that his technical assistance visit to the 

respondent's mine included discussions with the drill operator, and he found that the construction and lay-out of the 

barrier presented no problem. Mr. Lloyd also confirmed that 

the top of the enclosure was left off to afford visibility 

while the drill was used in the vertical position. The 

respondent did not call the drill operator or mine superintendent Schiller to testify in this case, and it has not rebutted 

the testimony of Inspector Lilly or Mr. Lloyd. 

Mr. Williams did not appear to be too enchanted with the 

noise barrier and he questioned its effectiveness as a noise 

deterrent. He also indicated that the glass had to be wiped 

off, and that in certain drilling positions, the barrier was 

a handicap. However, he did not suggest that the barrier 

presented any safety hazards, nor did he offer any credible 

engineering eviden9e to-support his opinions and conclusions 

regarding the use of the barrier. In short, I cannot conclude 

that the respondent has rebutted the petitioner's evidence 

which leads me to conclude and find that the construction, 

installation, and use of the barrier in question is a technologically achievable engineering control capable of reducing 

the drill noise sources and the drill operator and helper's 

noise exposure. 

With regard to the question as to whether or not the 

noise barrier in question is an engineering control which is 

economically achievable, I take note of the fact that in 

Callanan Industries, Inc., supra, at 5 FMSHRC 1909, the 

1158 
Commission stated that this may be established by "sufficient 

credible evidence supporting a reasoned estimate of the 

expected economic costs of the implementation of the control." 

In the case at hand, the evidence establishes that the initial 

diagnostic noise barrier used by Mr. Lloyd during MSHA's technical assistance survey was constructed from scrap plywood. 

Mr. Lloyd estimated the cost of the one finished barrier, 

. which consisted of a two-sided wooden framed and glass barrier, at $300 plus the cost of labor to construct it (Tr. 93). 

Utilizing MSHa's technical support personnel to minimize the 

costs, Mr. Lloyd believed that the construction and utilization of the barrier was an inexpensive and economically 

feasible noise control improvement (Tr. 105-106). 

Mr. Williams confirmed that mine superintendent Schiller 

constructed and installed the noise barrier, and while he 

could not state what it cost, he estimated that "it cost 

several thousand dollars of personnel time" (Tr. 67). However, there is no credible evidence to support the respondent's estimate of the "personnel costs." The respondent 

failed to call Mr. Schiller or to present any other evidence 

to substantiate Mr. Williams' conclusions. Photographs of 

the barrier in question (exhibit R-4), and those which are 

included as part of MSHA's technical assistance reports, 

reflects that the barrier is a relatively simple piece of 

equipment mounted to the side of the drill at the operator 

control station. Further, Lhe record in this case establishes 

that the costs of developinq.the barrier, including the 

engineering technical assistance and advice leading to its 

construction and installation, were ail at MSHA's expense. In 

addition, Mr. Lloyd confirmed that any future technical 

assistance, if necessary, will be at MSHA's expense, as long 

as the respondent avails itself of its services. Under the 

circumstances, I conclude and find that the petitioner has 

established by a preponderance of the credible evidence that 

the cost of the single noise barrier in question is not 

economically prohibitive, and that the respondent .has failed 

to produce any credible evidence to the contrary. 

It seems clear in this case that the installation of the 

noise barrier in question resulted in a reduction of 5 dBA's 

in the drill noise level, as well as a reduction in the level 

of noise exposure for the drill operator and helper, and that 

this was achieved at a reasonable cost. Under the circumstances, I conclude and find that the development and installation of the drill noise barrier were not wholly out of 

proportion to the resulting noise reduction benefits which 

have been achieved in this case. The fact that the 5 dBA 

noise reduction with the use of the barrier did not bring the 

1159 
respondent into total compliance with the permissible level 

stated in subsection (a) of section 57.5-50, is no reason to 

excuse the respondent from using the barrier or from continuing to use personal hearing protection in conjunction with 

the barrier. Todilto Exploration and Development Corporation, 

supra, at 5 FMSHRC 1896-1897. 

In view of the foregoing findings and conclusions, I 

conclude and find that the petitioner has established a violation of the cited mandatory standard, 30 C.F.R. § 57.5-50(b), 

by a preponderance of the credible evidence adduced in this 

case, and the citation IS AFFIRMED. 

History of Prior Violations 

The parties have stipulated that for the 24-month period 

prior to the issuance of the citation in question, the respondent was assessed for three violations. While it is not clear 

from the record whether or not the respondent's past compliance record includes citations for violations of section 

57.5-50Cb), this burden in of the petitioner. The petitioner 

has produced no evidence of any prior noise violations. Under 

the circumstances, I conclude and find that the respondent has 

a good compliance record. 

Size of Business and Effect of Civil Penalties on the 

Respondent's Ability to Continue in Business 

' 

The record establishes that the respondent is a small 

mine operator. The parties have stipulated that the civil 

penalty assessment for the violation in question will not 

adversely affect the respondent's ability to continue in 

business. 

Gravity 

The record in this case reflects that the employees working around the drill were wearing personal hearing protections. 

In addition, the respondent had purchased or traded in an old 

drill for a quieter one prior to the issuance of the citation, 

and there is no evidence of any long-term noise exposure. Once 

the noise barrier was installed, the respondent was still 

barely out of compliance, but the personal hearing protection 

was more effective against the lower noise levels resulting 

from the use of the barrier. Under the circumstances, I conclude and find that the violation was nonserious. 

1160 
Negligence 

On the fact of this case, I cannot conclude that the 

respondent.was negligent. The record establishes that the 

respondent required the drill operator and helper to wear 

personal protective devices and they were being worn at the 

time of the inspection. In addition, the respondent had 

purchased or traded in its old drill for a newer one in its 

attempts to limit the drill noise expqsure. 

Good Faith Compliance 

The record established that the respondent took timely 

steps to abate the violation, and cooperated fully with MSHA 

in its attempts to comply with the noise standard in question. 

I conclude and find that the respondent demonstrated good 

faith compliance. 

Civil Penalty Assessment 

In view of the foregoing findings and conclusions, and 

taking in to account the requirements of section llO(i) of 

the Act, I conclude that a civil penalty assessment in the 

amount of $20 is reasonable for the citation which has been 

affirmed. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment in the amount of $20 for section 104(a) non-"S&S" Citation No. 2236193, February 7, 1985, 30 C.F.R. § 57.5050(b). 

Payment is to be made to MSHA within thirty (30) days of the 

date of this decision, and upon receipt of payment, this 

proceeding is dismissed. 

·/ _//~ . 

. Z~.Lci~ 'Georg~A. Koutras 

Administrative Law Judge 

1161 
Distribution: 

Jill Klamm, Esq., Office of the Solicitor, U.S. Department of 

Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

David M. Williams, Esq., P.O. Box 242, San Saba, TX 76877 

( Cer,tif ied Mail) 

/fb 

.1162 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 291987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION· CMSHA), 

Petitioner 

v. 

Docket No. KENT 86-8 

MSHA NO. 15-13469-03544 

Mine: Green River No. 9 

GREEN RIVER COAL COMPANY, INC.: 

Respondent 

DECISION APPROVING SETTLEMENT 

Appearances: Mary Sue Ray, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for the Petitioner; 

Flem Gordon, Esq., Gordon and Gordon, 

Owensboro, Kentucky, for the Respondent. 

Before: Judge Melick 

This case is before me upon.a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety 

and Health Act of 1977 (the Act). At hearing Petitioner 

filed a motion to approve a settlement agreement and to 

dismiss the case. A modification of the order at bar to a 

citation under Section 104(a) of the act is proposed and 

Respondent has agreed to pay the proposed penalty of $500 in 

full. I have considered the representations and 

documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the criteria set 

forth in Section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlement if 

~RANTE~, ~nd it is ORDERE~ that Respondent tfY a penal~y of 

$500 within 30 days of this _1rde . . \, i' 

~j :f! . \' ' . , ; t\. / ( __,\ I d~r':{ ~ i ck~ - A_ L < 1 \_ \. 

Adnuni trative L\tw"'Judge-.. 

Distribution: J 

Mary Sue Ray, Esq., Office of the\ olicitor~ u. s. Department 

of Labor, 280 U. S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Flem Gordon, Esq., Gordon & Gordon, P.S.C. 1500 Frederica 

Street, P. o. Box 390, Owensboro, KY 42302 (Certified Mail) 

nt 1163 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400. 

DENVER, COLORADO 80204 JUN 291987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KAISER COAL CORPORATION OF 

SUNNYSIDE, 

Respondent 

. . 

. 

. 

. . 

. . 

. . 

. . 

. . 

. . 

Docket No. WEST 86-225 

A.C. No. 42-00093-03532 

Sunnyside No. 1 Mine 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

James A. Holtkamp, Esq., Vancott, Bagley, Cornwall 

and McCarthy, Salt Lake City, Utah, 

for Respondent. 

Before: Judge Cetti 

This is an enforcement proceeding brought by the Secretary 

of Labor, on behalf of the Mine Safety and Health Administration 

CMSHA), charging the operator of an underground coal mine with 

the violation of safety regulation promulgated under the Federal 

Mine Safety and Health Act, 30 U.S.C. § 801 et ~' (the Mine 

Act). 

The Secretary charges the operator with the violation of 

safety standard 30 C.F.R. § 75.205 with respect to the requirement that the operator test ribs of the mine as well as the roof 

and face before any work or machine is started, and as frequently 

thereafter as may be necessary to ensure safety. 

The respondent filed a timely appeal from the Secretary's 

proposal for penalty dated September 2, 1986. After proper 

notice to the parties this matter came on regularly for hearing 

before me as a administrative law judge of the Federal Mine 

Safety and Health Review Commission on February 4, 1987, at Salt 

Lake City, Utah. Oral and documentary evidence was introduced, 

both parties were ably represented by counsel. Post-trial briefs 

were filed, and the case was submitted on March 30, 1987. 

Issues 

The issues presented in this case are: 

Cl> Whether the practice at the mine of examin1ng out not 

testing the ribs of the mine constitutes a violation of 30 C.F.R 

1164 
§ 75.205, and (2) whether the alleged violation was "significant 

and substantial". 

Stipulations 

1. Kaiser Coal Corporation of Sunnyside is engaged in 

mining and selling of coal in the United States, and its mining 

operations affect interstate commerce. 

2. Kaiser Coal Corporation of Sunnyside is the operator of 

Sunnyside Mine No. 1, MSHA I.D. 42-0093-03532. 

3. Sunnyside Mine No. 1 'is subject to the jurisdiction of 

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

et ~ (the 11 Act 11 ) • 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subject citations were properly served by a duly 

authorized representative of the Secretary upon an agent of respondent, Kaiser Coal Corporation of Sunnyside, on the dates and 

at the places stated therein, and may be admitted into evidence 

for the purpose of establishing issuance of the citations, and 

not for the truthfulness or relevancy of any statements asserted 

therein. 

6. The exhibits to be offered by respondent and the 

Secretary are stipulated to be authentic but no stipulation is 

made as to their relevance or the truth of the matters asserted 

therein. 

7. The proposed penalty will not affect respondent's 

ability to continue in business. 

8. The operator demonstrated good faith in abating the 

violation. 

9. Kaiser Coal Corporation of Sunnyside is a large mine 

operator with 817,276 tons of production in 1986. 

10. The certified copy of the MSHA assessed violations 

history accurately reflects the history of this mine for the two 

years prior to the date of the citation. 

11. If a violation of 30 C.F.R § 75.205 is found the 

Secretary's $1,000 proposed penalty is the appropriate civil 

penalty. 

Applicable, Statutory and Regulatory Provisions 

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

§ 301 et seq. Sections 104(a) and 10l(c). 

2. The safety standard, 30 C.F.R. § 75.205. 

1165 
Summary of Evidence 

On March 7, 1986, Jerry Dimick, a safety engineer, was 

kneeling next to a rib. In that position, while examining a 

malfunctioning crusher, he was fatally injured when a large piece 

of the rib slid down and rolled over him. The piece of rib which 

fell on him was approximately 6' x 4' x 2', with a feathered edge 

on one side. Five to seven people were required to lift the 

piece of coal off Mr. Dimick. 

The citation alleges a violation of safety standard 30 

C.F.R~ § 75.205 which provides: 

Where miners are exposed to danger from falls of roof, 

face, and ribs the operator shall examine and test the 

roof, face, and ribs before any work or machine is started, 

and as frequently thereafter as may be necessary to insure 

safety. When dangerous conditions are found, they shall 

be corrected immediately. 

Under the heading ",condition or practice" the citation 

alleges the following: 

A test of the rib condition was not conducted after a visual 

examination was made for crosscut No. 28 and inby to the 

longwall face of the 129th Left longwall section. A service 

representative was performing an examination of a piece of 

equiptrnent [sic] that was not operating properly. This 

person was required to place himself in a close proximity to 

the lower rib. The untested rib fell striking the victim 

causing fatal injuries. This violation was issued during 

the investigation of a fatal accident which occurred on 

March 7, 1986. 

The Respondent's Case 

The respondent, Kaiser Coal Corporation of Sunnyside, in its 

post-hearing brief accurately summarizes the evidence upon which 

it is relying to prove its case. Respondent states that on March 

7, 1986, Jerry Dimick, a service engineer for Halbach and Braun, 

arrived at the Kaiser Supnyside No. 1 Mine for the purpose of 

examining a malfunctioning Halbach and Braun crusher at the 19th 

left outside longwall area ·(Tr. 29-30). Mr. Dimick was an 

experienced miner, having worked underground several years prior 

to becoming a service representative (Tr. 44). Mr. Dimick met 

Duane Wood, the general longwall foreman, at the bathhouse and 

asked to go with Mr. Wood into the mine to take a look at the 

crusher (also referred to a chunk breaker and as a stage loader) 

(Tr. 157). 

Mr. Dimick and Mr. Wood reached the longwall face at 19th 

Left after 11:00 a.m. (Tr. 157-58). They first noticed water 

leaking from a hose going to the crusher. After the leak was 

repaired, Mr. Dimick checked the valves on the controller of the 

crusher (Tr. 158). 

1166 
Mr. Dimick knelt down between the crusher and the rib to 

look at the equipment. Mr. Dimick's back was toward the rib (Tr. 

162-63). Mr. Wood crossed over the crusher to the "up-dip" side 

to look at the crusher from the other. side (Tr. 159). While Mr. 

Dimick was kneeling down looking at the crusher, Mr. Gary Kuhns, 

a section foreman, came from the bottom of track entry and walked 

by Mr. Dimick on his way to the face (Tr. 92). Mr. Kuhns 

proceeded to help the headgate operator shovel loose coal from 

the bottom jacks. As he looked toward the area where Mr. Dimick 

was kneeling, Mr. Kuhns saw the rib slide down and roll over in 

the area where Mr. Dimick was kneeling (Tr. 34, 92-93). Mr. 

Kuhns estimated the piece of rib which fell on Mr. Dimick to be 

six feet by four feet by two feet, with a feathered edge on one 

side (Tr • 9 3 ) • 

Mr. Kuhns ran to Mr. Dimick and shouted for Mr. Wood. Mr. 

Wood came over the crusher and, with Mr. Kuhns, tried to lift the 

coal but could not. The section crew came down the face and five 

to seven people were required to lift the piece of coal off Mr. 

Dimick (Tr. 160). 

Mr. Dimick was transported to the hospital and passed away 

while in intensive care that evening. 

An investigation team composed of representatives from the 

Mine Safety and Health. Administration ("MSHA"), the Company, the 

State Mine Inspector, and the miners undertook an investigation 

beginning at about 6:00 p.m. on March 7 CTr. 15-16). At approximately 8:00 p.m., the investigation team was notified that Mr. 

Dimick has passed away. At that t.ime, the MSHA inspectors issued 

a section 103(k) withdrawal order (Order No. 283484l)(Tr. 27). 

MSHA subsequently interviewed a number of employees of 

Kaiser, including those who had worked and traveled in the area 

prior to the accident. All of the miners reported that they had 

visually examined the rib as they traveled and could see no 

apparent anomaly or problem (Tr. 33-34, 38, 58). During the 

hearing, both Mr. Wood and Mr. Kuhns testified that they had 

carefully examined the rib visually immediately before the 

accident and had concluded that the rib was sound (Tr. 91-92, 

155-56). In fact, Mr. Kuhns testified that he had been though 

the area "a dozen times or ~ore during that shift, and there had 

been no changes, and I pay particular attention to changes" (Tr. 

95) • 

Mr. Wood testified that Tony Gabossi, the manager of the 

MSHA off ice in Price, told him that if there had not been a 

fatality, the citation would not have been issued (Tr. 171). In 

addition, Mr. Andrews testified that if Mr. Dimick had survived, 

no closure order would have been issued (Tr. 63-64). 

Rib Conditions in Mine Generally 

The Kaiser Sunnyside No. 1 Mine is a deep mine with up to 

2,500 feet of overburden, which pla~es cons\derable weight upon 

the coal. The coal is "soft," meaning that it yields to pressure 

from the weight. As a result, there is considerable sloughing of 

1167 
coal {Tr. 142). There has never been any suggestion from MSHA 

that the sloughage be cleaned up regularly, as it actually serves 

to help support the ribs (Tr. 143-44). 

Because of the nature of the coal in the mine, sounding or 

tapping and listening to the ribs is ineffective in detecting 

problems because the coal sounds the same whether it is tight or 

loose (Tr. 40, 41, 79-80, 129). The practice of the miners at 

Kaiser is to examine visually the ribs in their working and 

travel areas. If a crack, overhang, or other problem is identified, the procedure is to bar the rib down using a pry bar or 

equivalent before beginning work (Tr. 142, 147). 

Mr. Wood and Mr. Howell testified that during their years at 

the Sunnyside No. 1 Mine, they had accompanied MSHA inspectors 

many times underground, and except for visits by Mr. Lee Smith of 

MSHA in the aftermath of the accident, they recalled no inspector 

either tapping or directing that. someone tap the ribs for the 

purpose of testing their soundness (Tr. 152, 201-02). In fact, 

the citation was abated through hazard training of the employees 

on roof and rib control, which did not include any instruction on 

physical testing of the ribs (Tr. 74-75). It is significant that 

Mr. Andrews attended the training which constituted the abatement, and did not either instruct the miners himself that 

physical tapping is necessary or require that the company instruct the miners on the need for physical tapping of the ribs 

(Tr. 74-75, 187-88). 

Mr. Wood and Mr. Kuhns testified that tapping the ribs at 

the Sunnyside No. 1 Mine could present a hazard because, even if 

the coal had been tight before the tapping, the tapping could act 

to loosen the coal. At that point, the 16ose coal would be a 

hazard and would have to be barred down (Tr. 96, 148-49). 

Mr. Andrews, the MSHA inspector who issued the citation, 

testified that tapping the coal to observe visually whether there 

is any problem, either through movement or through chunks falling 

from the ribs, was the best way to determine its soundness. In 

fact, Mr. Andrews testified that after hitting a rib to test it, 

an individual should hit it again "to see if the first test had 

caused it to become loose enough to fall when you tapped it 

again, or if it would create some type of crack which you could 

visually see and try to bar down" (Tr. 61). However, Mr. Andrews 

also testified that if sloughage comes off the rib after it is 

hit, it does not necessarily mean the rib is loose (Tr. 62). 

Mr. Andrews could not identify either time or distance 

intervals within which the tapping should be done, except to 

state that under ideal rib conditions, the rib should be tapped 

every two or three steps, stopping if "there was a different 

sound" (Tr. 69-73). However, in the twelve and one-half years he 

worked in and inspected the Sunnyside No. 3 Mine, he could recall 

no instance where he walked along a rib, tapped it, and detected 

a problem through sound (Tr. 73-74). 

1168 
Mr. Andrews testified that even if tapping and sounding is 

ineffective, he would require it as an MSHA inspector because the 

regulation requires both visual and physical examination and 

testing (Tr •. 85}. 

Petitioner's Case 

On March 7, 1986 Bruce Andrews, a coal mine safety and 

health inspector, received information that a serious accident 

had occurred at the Kaiser Sunnyside Mine No. 1. Mr. Andrews, 

along with another coal mine Inspector Jerry Lemon, proceeded to 

the mine and arrived at the Sunnyside Mine at approximately 6:00 

p.m. on March 7, 1986 (Tr. 15). Upon arrival at the mine Mr. 

Andrews and Mr. :Lemon were met by.the safety director for Kaiser 

Coal, Jerry Howell. Mr. Howell accompanied the inspectors 

underground and the party proceeded to the 19th left longwall 

section crosscut 28, the site of the accident (Tr. 16). 

Upon arrival at the accident site, Mr. Lemon conducted a 

visual examination and testing of the ribs next to the lower part 

of the crusher (Tr. 22}. Mr. Lemon then proceeded across the 

crusher to the uphill side of the ribs. There he noticed that 

there were cracks in the ribs and was told by the safety director 

that no one was allowed to be on the topside of the crusher or ·· 

the uphill rib because of the unsafe condition of the ribs (Tr. 

23). Mr. Lemon, however, did perform tests on the rib at that 

time (Tr. 211, 212). While performing those tests, Mr. Lemon 

asked to be brought a scaling bar so that he could bar down the 

loose ribs (Tr. 26). 

The next morning, March 8, 1987, Mr. Andrews returned .to the 

accident site. He was accompanied by Ted Caughman, a Senior 

Special Investigator for MSHA, and Tony Gabossi, supervisor in 

the MSHA Price Field Office (Tr. 28). The inspectors conducted 

interviews with persons who were in ·the area of the accident and 

who had information regarding the accident (Tr. 29). 

The interviews with these persons showed that the victim of 

the accident, Mr. Jerry Dimick, arrived at the mine on the 

morning of March 7th (Tr. 30). Mr. Dimick, a representative from 

Halbach and Braun a mining service company, reported to the mine 

to check the malfunctioning crusher CTr. 30). Mr. Dimick was met 

by Duane Wood, the general longwall foreman for Kaiser Coal, and 

the two men proceeded underground to the crusher zone area (Tr. 

31). Upon arriving at the crusher Mr. Wood indicated that he 

conducted a visual examination of the roof and ribs in that area 

(Tr. 31, 155). Mr. Wood looked at the rib in the area near where 

Mr. Dimick would be working on the crusher and saw no cracks in 

the ribs. He had traveled the area several times that morning 

with crew members who also visually examined the rib and did not 

see any problems (Tr. 155). Prior to Mr. Dimick entering the 

area however, no testing of the ribs was conducted (Tr. 35). Mr. 

Dimick then proceeded to examine the crusher. In order to 

conduct the examination Mr. Dimick knelt down on the downhill 

side of the rib between the crusher and the rib (Tr. 32). While 

1169 
Mr. Dimick was in that position, Mr. Wood crossed over the 

crusher to the other side and was looking underneath the crusher 

from the uphill side of the rib. Although the safety director 

indicated to Mr. Lemon that no one was to be on that uphill side, 

Mr. Wood indicated that on that particular day he crossed to the 

upper rib, visually examined the rib, but conducted no testing on 

that uphill si~e (Tr. 178). 

While Mr. Dimick was examining the crusher from the kneeling 

position, two miners, Gary Kuhns, a section foreman, and Darrell 

Leonard, passed by him on the lower side of the crusher. Both of 

these miners indicated that they visually examined the rib as 

they walked by· Mr. Dimick but did no testing (Tr. 33, 34). Mr. 

Kuhns testified that when walking past Mr. Dimick, he had no more 

than two feet of space in which to walk between Mr. Dimick and 

the rib (Tr. 91). In fact, Mr. Kuhns had to turn to the side in 

order to get around Mr. Dimick (Tr. 91). Mr. Kuhns walked past 

Mr. Dimick and proceeded to the head gate area of the longwall 

section. While he was helping the head gate operator Mr. Kuhns 

looked down the entry, ~aw Mr. Wood on the uphill side of .the 

crusher but could not see Mr. Dimick on the bottom of the 

downhill rib (Tr. 34). Mr. Kuhns then saw a rib, approximately 

6' x 4' and 2' thick, slide and tip over in the area where he had 

seen Mr. Dimick kneeling (Tr. 34, 93). Mr. Kuhns shouted to Mr. 

Wood and the two men ran over to find Mr. Dimick trapped under 

the fallen rib (Tr. 34, 93, 94). 

On the day of the accident, March 7, 1987, several other 

miners had been traveling in the area and passing between the 

crusher and the downhill rib. The area was a walkway for the 

longwall crew who passed through this section when they went to 

work in the morning, when they went to lunch, and when they left 

the area at the end of the day. Anyone traveling from the 

longwall face to the head gate had to pass through this 

particular area (Tr. 35). The miners passing through this area 

on March 7th indicated that they had conducted a visual examination of the rib but had not conducted any testing of the 

ribs on the lower side of the crusher (Tr. 35). 

Mr. Kuhns indicated- that when he walked past Mr. Dimick to 

the headgate area, he visually inspected the rib as he walked by 

but did not conduct any physical test of the rib nor did he observe anyone else conducting a physical test of the rib (Tr. 94). 

In fact, Mr. Kuhns testified that he does not make it a practice 

to physically test those ribs (Tr. 95). During the time Mr. 

Dimick was in the area between the rib and the crusher, no one 

conducted a test of the rib, nor were there any test of the rib 

conducted prior to Mr. Dimick's entering the area (Tr. 42). 

It is the Secretary's position that prior to the accident, 

several things occurred in the longwall section that indicated 

that the ribs should have been tested. 

The ribs in this mine could have been tested prior to the 

accident in one of two ways to determine if there were any 

1170 
hazards present. First, a sounding test, also known as the sound 

and vibration test could have been conducted. Sounding to test 

the rib is merely to hit the rib and listen for the sound. A 

sharp ringing sound will indicate the rib is fairly stable and a 

drummy hollow sound will indicate that the rib is weak or 

fractured (Tr. 111). Where the ribs are prone to sloughing or 

pressure they will sound hollow or loose. A hollow sound 

indicates that the rib should be scaled down (Tr. 40). Although 

a sounding test is not always accurate it is one of the several 

ways in which to determine the competency of the ribs and is more 

valuable in some areas of the mine than others (Tr. 111, 112). 

The second test that can be done to determine the competency 

of a rib is a physical test. A physical test is .conducted in 

much the same way as the sound and vibration test. The test is 

conducted by hitting the rib with a scaling bar or some other 

long instrument. Once the rib has been hit or tapped the person 

conducting the test can then watch the rib to see if there are 

any indications of movement in that piece of coal or rib. A 

movement will indicate a need to pull down the rib (Tr. 39, 40, 

114) • 

While neither of these two methods of testing roof and ribs 

is fool proof, they are helpful in locating unstable ribs (Tr. 

112). A visual observation alone may fail to detect a hazard 

that a sounding method or the physical method of testing may 

detect. The test may also confirm a hazard that is already 

suspected (Tr. 112). The two tests, the sounding test and the 

physical test, are both conducted with a long bar or stick. 

In the Sunnyside Mine both the sounding test and the 

physical test are appropriate (Tr. 120). It is acknowledged, 

however, that different types of ribs require different types of 

control and evaluation (Tr. 121). It is the Secretary's position 

that the conditions or type of rib will not excuse an operator 

from conducting the tests required by the regulation. Which test 

to use, sounding or physical, depends on the condition of the 

mine and the ribs at the time. Mr. Wood testified that sounding 

probably would not have told them anything about the rib in the 

area of the accident on March 7th (Tr. 179). However, he did 

admit that a visual exam~nation of a rib cannot always tell where 

there is a problem (Tr. 181), and that it is possible that a 

physical test, that is tapping of the rib and then observing to 

see if anything occurred, would have shown a problem in the area 

of the accident (Tr. 179, 191, 192). The mine inspectors agree 

·that a sounding test in this mine may give a false indication but 

a physical test is the best indication of a problem, partly 

because this mine uses yieldable pillars which are prone to 

sloughage (Tr. 41). A visual examination alone is not an 

accurate indication of the condition of the ribs and does not 

always reveal a fall danger (Tr. 102, 210). Therefore, in 

working around roof and ribs a miner first makes a visual 

examination or observation to detect a hazard and then additional 

tests are conducted to reveal the presence of any further hazards 

(Tr. 102). 

1171 
It is the Secretary's contention that tests, in addition to 

visual examination, are required under the Mine Safety and Health 

act when certain conditions exist that may post a danger to a 

miner (Tr. 43). There are several indications that would reveal 

to a miner that he may be exposed to danger and more than a 

visual examination is necessary. The indications present in this 

case were listed by the Mine Safety and Health inspectors who 

testified in this case. 

Bruce Andrews has been a mine inspector for nine and a half 

years, has worked at the Sunnyside No. 1 mine, and has extensive 

experience with roof and rib control (Tr. 12, 14). Lee Smith is, 

and has been for one and a half years, a supervisor roof control 

specialist for the Mine Safety and Health Administration (Tr. 98). 

Prior to becoming the supervisor roof control specialist Mr. 

Smith was a Mine Safety and Health inspector for seven years and 

worked in the coal mines-for approximately four and a half years 

(Tr. 99). Mr. Smith is in charge of all roof control plans; his 

primary specialty is roof control and he has had extensive 

training in roof and rib control (Tr. 99, 100). 

Mr. Andrews and Mr. Smith both indicated that under the 

circumstances present at the Sunnyside No. 1 mine on March 7, 

1987, a physical test should have been ~onducted of the ribs in 

the area where Mr. Dimick was working based on four specific 

items. These items should have been known by the management and 

should have indicated to mine management a danger from a rib fall 

and a need for a test. The four items are: 1) the history of the 

mine; 2) the proximity of Mr. Dimick to the rib; 3) the fact that 

Mr. Dimick was not an employee of the mine; and 4) the shearing 

operation that had occurred approximately fifteen minutes prior 

to the accident. 

The testimony is undisputed that the Sunnyside No. 1 mine 

has a history of bad ribs. Mr. Smith has conducted an inspection 

of the Sunnyside No. 1 mine on two occasions; each time for the 

purpose of examining the roof and ribs. The first inspection 

occurred in the summer of 1986, several months prior to this 

accident and was prompted by the fact that Sunnyside Mine had 

been listed as a mine with a high incident rate of accidents 

resulting from fall of roof and ribs (Tr. 105, 108, 109). On his 

first visit Mr. Smith was conducting a six-month review of the 

Sunnyside No. 1 mine roof control plan. On that visit Mr. Smith 

found that the areas in the Sunnyside Mine he visited had ribs 

that were unstable, showed evidence of sloughage and appeared to 

be incompetent (Tr. 106). The sloughage and the problem with the 

ribs began shortly after initial development in the areas he 

visited (Tr. 106). The problem is in part caused by overburden 

at this mine that exerts pressure on the coal seam in a downward 

manner and places excessive weight on the ribs (Tr. 108). On his 

first visit to the mine Mr. Smith discussed problems concerning 

the ribs with mine management and was told by management that 

they were certain that the ribs were incompetent and acknowledged 

that the rib problem was due to various conditions, one of them 

being the amount of overburden (Tr. 108, 109) • 

. 1172 
Mr. Smith made his second visit to the Sunnyside No. 1 mine 

on February 7, 1987, and again inspected the rib conditions. 

Again, the ribs showed evidence of sloughage, there were fracture 

lines and evidence that the ribs were unstable (Tr. 110). 

Based on his observations of the Sunnyside No. 1 mine, Mr. 

Smith considers it proper to first conduct a visual observation 

of the ribs. Then, using the sounding method or the physical 

test, the miner should determine if the ribs are loose and should 

be pried down (Tr. 111). In a mine with these conditions, where 

there is a history of the mine that indicates a particular coal 

seam has poor or substandard. ribs, then.more than a visual 

observation is r~quired to prevent a hazard (Tr. 113) •· Again, 

the visual observation of a rib may not always indicate a hazard 

but the history of the mine indicates that further testing should 

be completed (Tr. 113). Here given the history of the Sunnyside 

Mine and the unstable ribs along with the incident rate indicated 

by Mr. Smith, there is a need to do tests to determine if a 

hazard exists (Tr. 115, 116). 

Bruce Andrews, a cioal mine safety and health inspector, who 

has extensive experience in coal mines and has worked in the 

Sunnyside Mine agreed with Mr. Smith that it is general knowledge 

that the condition of the ribs in that mine are substandard (Tr. 

47). Mr. Andrews also indicated that the overburden was a 

particular problem and contributed to the unstable condition of 

the ribs (Tr. 47). The substandard condition of the ribs should 

have been known to the miners who work in that mine and in the 

particular area of the accident (Tr. 47). 

Mr. Kuhns, a miner and section foreman at Kaiser Coal; 

indicated that he was aware that the ribs were not particularly 

good in that mine (Tr. 91) and the two witnesses for the 

operator, Duane Wood and Jerry Howell, agreed that they were 

aware of the substandard condition of the ribs in the Sunnyside 

Mine. Mr. Wood indicated that mine management is aware of the 

ribs problem {Tr. 176) and that MSHA has always discussed 

sloughage in entries with Kaiser Coal (Tr. 174). In fact, that 

subject has come up with almost every inspector involving Kaiser. 

There was sloughage caused by the poor condition of the ribs 

around the area where Mr. Dimick was working and that sloughage 

made it difficult to walk in the area (Tr. 175, 176). In most 

cases throughout the mine, Mr. Howell testified, the ribs are 

soft, they show signs of sloughage and failure, making it 

necessary for Kaiser to keep a close eye on the ribs and to pry 

down the bad spots (Tr. 176). Finally, Jerry Howell, safety 

manager at Kaiser Coal, indicated in his testimony that ribs were 

bad at the time of the accident in March of 1986 (Tr. 206). 

As Mr. Smith testified, when he visited the mine he saw 

sloughage which indicated that the ribs were loose, were being 

subjected to stress, and indicating that the ribs could become 

unstable and incompetent (Tr. 118). Mr. Smith's testimony along 

with that of Mr. Andrews and the miners who worked in the Sunnyside Mine leave no doubt that there was a history of sloughage 

1173 
and bad ribs in the Sunnyside Mine. The Secretary points out 

that this factor is very important in considering when a test of 

the ribs should be conducted. 

The second factor addressed by the mine inspectors in considering that a test was necessary prior to the accident is the 

proximity of the workplace to the rib. When a miner's work 

position brings him into close proximity of the rib a physical 

test is appropriate (Tr. 103). In certain areas of tqe Sunnyside 

Mine where there is no equipment, miners can walk in the center 

of the walkway a distance from the rib thereby avoiding exposure 

to a hazard from a rib fall. In fact, in most areas of the mine· 

the miners as well as the mine inspectors, walk in the middle of 

the walkway so as not to get too close to the ribs (Tr. 82, 207). 

Sunnyside Mine instructs its miners to walk in the middle of the 

entry to, in effect, position themselves as far away from the 

ribs as possible (Tr. 116). However, in the area where the 

accident occurred, it was necessary to walk closer to the rib 

than in other areas of ~he mine (Tr. 82). Whenever a miner's 

work position would place him closer to a rib than the center of 

the entry, there is a need to test the rib (Tr. 117). 

Here Mr. Dimick was positioned between the crusher and the 

lower rib. He was in a kneeling position with his back towards 

the rib, a dangerous position as it would be difficult for him to 

observe the rib from that location and be aware of the condition 

of the rib (Tr. 117). 

Not only was the kneeling position significant, but the fact 

that Mr. Dimick was in close proximity to the rib, within a few 

feet and directly in line for any fall of the rib. Mr. Kuhns 

testified that he was required to walk sideways in order to pass 

Mr. Dimick, indicating that Mr. Dimick was kneeling within a few 

feet of the rib. In addition, on March 7th other miners were 

traveling in the longwall area and had no choice but to walk very 

close to the rib. This was another indication that a physical 

test should have been conducted. Since Mr. Dimick was required 

to work just a few feet from the rib in a confined area, the ribs 

should have been te~ted.iTr. 43). 

In conjunction with Mr. Dimick's working position in the 

mine, that is, kneeling very close to the rib, mine inspector, 

Mr. Andrews and the supervisory roof control specialist, Mr. 

Smith, both indicated that another factor they considered in 

determining whether a test of the rib should have been conducted 

is that Mr. Dimick was not an employee of the mine (Tr. 44). In 

fact, Mr. Wood, the longwall foreman who accompanied Mr. Dimick 

underground, testified that he would go to an extra length to 

inspect the ribs when accompanying someone into the mine who is 

not an employee of Kaiser Coal (Tr. 177). The obvious reason for 

conducting a test when a non-employee is present in the mine is 

that the non-employee may not be aware of the history or condition of the ribs and, therefore, may be unknowingly subjecting 

himself to a hazard. 

1174 
The fourth, and final, factor discussed by the inspectors in 

this case relative to the need for a physical or sounding test is 

that mining was going on near the location where Mr. Dimick was 

working and the shearing process had been completed only fifteen 

minutes prior to the accident. As Mr. Smith testified, most roof 

fall fatalities occur within 25 feet of the face. The closer you 

get to where the coal production is being done the greater your 

chances of being involved in a fatal accident (Tr. 118). 

Mr. Dimick was working in an area near the headgate entry at 

the crusher. The headgate entry is an area of primary activity 

where the actual mining of coal is being conducted (Tr. 36). 

Just prior to the. accident, approximately fifteen minutes 

earlier, the longwall shearing machine had come down and cut 

through the headgate entry and then traveled back up the longwall 

face (Tr. 36). This shearing procedure involves weight 

transference or a.transfer of stress, which in turn has an effect 

on the rib CTr. 103). The procedure generally causes sloughage 

and the ribs to loosen (Tr. 36). The closer the shearing process 

is to the rib, the more likely it is to cause a problem or weaken 

the rib, particularly in the case of the yieldable pillar that is 

present in the Sunnyside Mine (Tr. 104). 

Mr. Andrews, who worked in this mine, was aware of the 

effect that the shearing procedure had on the ribs (Tr. 37). It 

follows then, that miners and management who work in the mine 

would be aware of the effect of the shearing process on the ribs. 

Since this process had occurred approximately fifteen minutes 

prior to the accident, changes .. would have occur~ed in the area 

where Mr. Dimick was working, thereby exposing him to a danger of 

rib fall (Tr. 37). Therefore, because qf the work being done in 

the longwall section, the conditions of the rib were continually 

changing, and a test should have been conducted prior to Mr. 

Dimick working in a position directly next to the rib (Tr. 84). 

It is the Secretary's position that the standards express 

testing requirement Cin addition to visual observation) was 

written as a result of the large number of fatalities and serious 

injuries due to rib and roof falls. The standard has a two-part 

requirement, first, the mine operator must observe or visually 

examine and, second, it must conduct a test {Tr. 122). The 

frequency of testing de~ends on the mining conditions, the 

characteristics of the coal seam, the position of the worker, and 

the type of work being performed, among others (Tr. 122). Even 

though testing is required by this standard, prior to the 

accident that took the' life of Mr. Dimick, no one at the Sunnyside No. mine had been instructed to do any sound testing or 

physical testing of the ribs. Respondent does not instruct the 

miners in the Sunnyside Mine to physically test the ribs at any 

time (Tr. 207). 

Discussion and Findings 

At the hearing the parties stated that the primary issue in 

this case is the proper interpretation of the safety standard 30 

1175 
C.F.R. § 75.205 as it applies to the condition of the ribs in the 

Sunnyside No. 1 mine. The standard, in pertinent part, provides 

as follows: 

Where miners are exposed to danger from falls of roof, 

face, and ribs the operator shall examine and test the 

roof, face, and ribs before any work or machine is started, 

and as frequently thereafter as may be necessary to insure 

safety. 

It is the operator's position that testing the ribs in this 

mine is not only ineffective in detecting hazards but would 

actually increase the potential hazard. Therefore, respondent 

argues the safety standard as it applies to the mine in question 

should be interpreted to require visual examination of the ribs 

but not testing. It is the operator's contenti0n that the testing of the ribs in the Kaiser Sunnyside No. 1 Mine is useless 

because it wouldn't demonstrate any problem and would weaken the 

ribs and thus would create a potential hazard. In other words 

that testing the ribs would diminish safety rather than enhance 

safety. 

The safety standard 30 C.F.R. § 75.205 reflects the provisions of Section 302(f) of the Mine Act. It is well established that the meaning of a statute or regulation must, in the first 

instance, be sought in the language in which it is framed, and if 

that is plain the sole function of the Courts is to enforce it 

according to its terms. Caminetti v. The United States, 242 U.S. 

470. When the language is clear and unambiguous it must be held 

to mean what it plainly expresses. Thus, the safety standard by 

use of the conjunctive "and" clearly requires both visual examination and testing of the ribs where miners are exposed to danger 

from falls of ribs. 

With respect to respondent.'s contention that testing of ribs 

is useless, it is noted that Mr. Wood, Kaiser's general longwall 

foreman, when asked if testing of the rib adjacent to where Mr. 

Dimick was kneeling (the rib that came down and crushed him) 

would have alerted him to the fact that there was a defect or a 

potential hazard, replied "I don't know if the tapping procedure 

would have done any good or not" (Tr. 191, 192). 

Even assuming, arguendo, that respondent is correct in its 

contention that testing of the ribs in the Sunnyside No. 1 mine 

diminishes safety rather than enhances it, the remedy does not 

lie in obtaining a ruling in an enforcement proceeding that the 

mandatory standard as applied to its mine requires an interpretation of the standard that is different than that applied ·to 

mines generally i.e. that visual examination without testing is 

sufficient to comply with the requirement of the safety standard. 

Such a ruling would not only defy the plain meaning of the regulation but conflicts with the previous Review Commission's 

rulings on the defense of diminution of saf~ty and the need to 

comply with the provisions of § 10l(c) of the Mine Act. 

1176 
In Sewell Coal, 5 FMSHRC 2026, the Review Commission stated 

that section 10l(c) of the Mine Act preserves the same basis for 

granting a variance that were contained in section 30l(c) of the 

1969 Coal Ac~. Un<ler the mo~ific~ti0n provisions of the Mine 

Act, the decision to grant or withhold a variance is made by the 

Secretary of Labor. The MSHA regulation implementing section 

lOl(c) provides for an initial decision by an administrator of 

MSHA with the right of appeal ultimately to the Assistant Secretary of Labor for Mine Safety anJ Health. 30 C.F.R. §§ 44.13 

44.33. 

The Review Commission pointed out in Sewell Coal that the 

phrase "diminution of safety" in Section lOl(c) of the Mine Act: 

"serves as one of the following two bases for a determination by 

the Secretary that an operator may depart from otherwise mandated • 

compliance with a standard: Cl) If an alternative method of 

achieving the results of the standard exists_ with no loss in the 

measure of protection afforded to the miners by the standard: or 

(2) if application of the standard to the mine will diminish the 

safety of the miners." 

In Penn-Allegh Coal Company, Inc., 3 FMSHRC 1392 at 1397-98, 

the Review Commission ruled that an operator is foreclosed from 

bypassing this statutory modification procedure and unilaterally 

determining to forego compliance with a mandatory standard. 

In Florence Mining Co., 5 F~SHRC 189, the Review Commission 

stated that questions of diminution of safety must first be 

pursued and resolved in the context of a modification proceeding 

provided for in Section 101Cc) of the Act and held that the 

Review Commission does not have jurisdiction to rule on petitions 

for modification in enforcement proceedings. 

With respect to respondent's argument that it relied or 

should be allowed to rely on the acts and statements of MSHA 

officials implementing regulations, the U.S. Court of Appeals in 

Emery Mining Corp., (CA 10) 1983), sub .!!.Q!!! Emery Mining Corp., v. 

Labor Department (Secretary) affirmed 3 MSHC 1001, 3 MSHC 1585 

held that to the extent that an operator relies on interpretation 

by MSHA officials of the Act's implementing regulations, the 

operator assumes the risk that the interpretation was in error • 

. Estoppel does not run against the federal government. Federal 

Crop Insurance v. Merril, 332 U.S. 381. 

Section 30 C.F.R. § 75.205 is a mandatory safety standard 

that requires visual inspection and testing of the ribs where 

miners are exposed to dangers from falls of the ribs. In this 

case it is clear from the evidence that the decedent Mr. Dimick 

and.other miners were in an area where they were exposed to 

danger from falls of the ribs. It is undisputed that the 

Sunnyside No. 1 mine has a history of bad ribs; that Mr. Dimick 

had to work in a kneeling position in close proximity to the rib; 

that other miners had to turn almost sideways when they passed 

between Mr. Dimick and the rib~ and that approximately fifteen 

1177 
minutes before the accident the longwall shearing machine had 

come down and cut through the headgate entry and traveled back up 

the longwall face. 

The violation of 30 C.F.R. § 75.205 was a significant and 

substantial violation of a mandatory safety standard. The MSHA 

inspectors testified that there was a serious safety hazard 

because the operator failed to test the ribs. Even Mr. Wood, 

respondent's longwall foreman admitted that physical testing of 

the rib might disclose the hazard in that area (Tr. 179, 191). 

There was a reasonable likelihood that the hazard contributed to 

what would and did result in Mr. Dimick's fatal injury. There 

was a reasonable likelihood that the injury in question would be 

and in fact was of a reasonable serious nature. 

The parties stipulated that if a violation of 30 C.F.R 

§ 75.205 was found that the appropriate penalty would be the 

$1,000 penalty proposed by the Secretary. This stipulation is 

accepted and the appropriate civil penalty is found to be $1,000. 

Findings of Fact and 

Conclusions of Law 

1. Kaiser Coal Corporation of Sunnyside is engaged in 

mining and selling of coal in the United States, and its mining 

operations affect interstate commerce. 

2. Kaiser Coal Corporation of Sunnyside is the operator of 

Sunnyside Mine No. 1, MSHA I.D. No. 42-00093.03532. 

3. Sunnyside Mine No. 1 is subject to the jurisdiction of 

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

seq. C 11 the Act 11 ) • 

4. As an Administrative Law Judge of the Federal Mine 

Safety and Health Review Commission I have jurisdiction to hear 

and decide this matter. 

5. The subject ci~ations were properly served by a duly 

authorized represen~ative of the Secretary upon an agent of 

respondent, Kaiser Coal coiporation of Sunnyside, ~n the dates 

and at the places stated therein. 

6. 

from the 

and thus 

C.F.R. § 

7. 

Mr. Dimick and other miners were exposed to a danger 

fall of the ribs and the operator did not test the ribs 

was in violation of the mandatory safety standard 30 

75.205. 

The violation is significant and substantial. 

8. Kaiser Coal Corporation of Sunnyside is a large mine 

operator with 817,276 tons of production in 1986. 

9. The certified copy of the M8HA Assessed Violations 

History accurately reflects the history of this mine for the two 

years prior to the date of the citation. 

1178 
10. The operator demonstrated good faith in abating the 

violation. 

11. The $1,000 proposed civil penalty will not affect 

respondent's ability to continue in business. 

12. The appropriate penalty for the violation of 30 C.F.R. 

§ 75.205 is $1,000. 

ORDER 

Based upon the above findings of fact and conclusions of law 

it is ordered that respondent shall pay the above civil penalty 

of $1,000 within 30 days of this decision. 

Distribution: 

a ~ /P~_ 

~~~ G;(~.· Augus'k:. F. Cetti 

Administrative Law Judge 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. 

Department of Labor, 1585 Federal Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

James A. Holtkamp., Esq., Vancott, Bagley, Cornwall & McCarthy, 

50 s. Main Street, Suite 1600, Salt Lake City, UT 84145 

(Certified Mail) 

/bls 

1179 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE . 

FALLS CHURCH, VIRGINIA 22041 

FLORENCE MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, 

Petitioner 

v. 

FLORENCE MINING COMPANY, 

Respondent 

JUN 301987 

. . 

. . 

. . 

. . 

. . 

. . 

CONTEST PROCEEDING 

Docket No. PENN 86-297-R 

Order No. 2697882; 8/14/86 

Florence No. 2 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 87-16 

A.C. No. 36-02448-03575 

Florence No. 2 Mine 

DECISION 

Appearances: Covette Rooney, Esq., u.s. Department of 

Labor, Philadelphia, Pennsylvania, for 

Secretary of Labor: . 

R. Henry Moore, Esq., Florence Mining Company, 

Pittsburgh, Pennsylvania, for Florence Mining 

Company. · 

Before: Judge Fauver 

These consolidated proceedings were brought under the 

Federal Mine Safety and Health act of 1977, 30 u~s.c. § 801, 

et seq. The company seeks to vacate a withdrawal order 

charging a violation of a safety standard, and the Secretary 

seeks to uphold the order and to have a civil penalty 

assessed for the violation charged. 

Having considered the hearing evidence and the record as 

a whole, I find that a preponderance of the substantial, 

reliable, and probative evidence establishes the following: 

1180 
FINDINGS OF FACTS 

1. Respondent operates an underground coal mine, known 

as Florence No. 2 Mine, which produces coal for sale or use 

in or affecting interstate commerce. 

2. On August 14, 1986, Inspector Ronald Gossard issued 

an order pursuant to§ 104(d)(2) of the Act alleging a 

violation of 30 C.F.R. § 75.1704 for an incident on August 

13, 1986, involving the replacement of the hoist rope at the 

Florence No. 2 Mine. The order reads as follows: 

The slope hoist facility approved by MSHA to 

transport injured miners from the mine was 

removed from operation to .replace the hoist 

cable while miners were underground. The 

hoist was not.available for use from 9:30 a.m. 

to 3:00 p.m. on August 13, 1986. The 

operator's approved plan requires a person 

trained to operate the hoist shall be 

available when miners are underground to 

transport injured persons to the surface. 

This requirement implies that the hoist will 

also be available for use when ~iners are 

underground. 

The order is a result of a 103(g)(l) request 

from a representative of the miners dated 

August 14, 1986. 

3. The underground workings of the mine may be reached 

by a slope from the surface. It is a "dual compartment" 

slope with a track entry in one compartment and a belt entry 

in the other. The slope is about 620 feet long, 16 feet wide 

and 6 feet high. In the first 200 feet of descent the grade 

is about 16 degrees. This is the steepest part of the slope, 

and after this section the grade lessens to 5 degrees. There 

is track in the slope used by the materials hoist that lowers 

supplies and equipment into the mine. A walkway runs down 

the slope on the left side of the entry. Along the entire 

length of the slope walkway a handrail and lighting are 

provided. With the exception of about 100 feet where ties 

are placed across the walkway to prevent damage to the hoist 

rope around a curve, the walkway is concrete and relatively 

smooth. The part crossed by ties (100 feet) is uneven and 

would require careful stepping to carry a stretcher up the 

slope. 

1181 
4~ The walkway is used by all miners entering and 

exiting the mine on three shifts. The miners walk down the 

slope and use transportation at the bottom to travel farther 

into the mine. At the end of the shift, miners walk up the 

slope. Descent ~y walking usually takes two to three 

minutes. It takes longer to ascend the slope. 

5. Early in August, 1986, the company decided to 

replace the hoist rope because of damage to the rope. While 

the hoist rope did not yet meet the criteria for mandatory 

retirement of the rope, it was felt that it should be changed. 

Management decided that this would be done on August 13, 

1986, a production day, so that the hoist could be used the 

next weekend to lower a new continuous miner into the mine. 

There was no safety reason requiring that the hoist rope be 

changed on a production day, and it would have been feasible 

to change the rope on a Saturday or Sunday when miners would. 

not be underground. 

6. Some of the work of replacing the rope began on 

August 12, when one end of the new rope was unspooled and 

taken into the hoist house. The new rope was stretched from 

the hoist house to the top of the slope where it lay until 

work began the next day to replace the old rope. 

7. Sometime after 9:30 a.m. on August 13, when the day 

shift miners were working underground, the old rope was taken 

off the hoist, and it was removed from service. Replacement 

of the rope took until about 3:30 or 4:00 p.m. 

8. After the new rope was installed, there.were some 

problems with twists that were observed in the rope. The 

midnight shift did not go into the mine until 5:00 a.m. on 

August 14, while management sought to correct the condition. 

9. A union complaint was made to MSHA pursuant to 

§ 103(g) of the Act c9ncerning the twists in the rope. 

Inspector Gossard went to the mine about 9:00 a.m. 

on August 14, in response to this complaint. 

10. Inspector Gossard inspected the hoist rope to 

determine if the twists in the rope had caused any damage. 

After he determined that no damage had occurred and that no 

violation existed, he was given a second § 103(g) complaint 

concerning the replacement of the rope while miners were 

underground. He investigated this complaint and found that 

the hoist rope had been changed the previous day while miners 

were underground. There was no dispute about this incident 

occurring, and management acknowledged that the hoist had 

been taken out of service to change the hoist rope, fr9m 

1182 
about 9:30 a.m. to 3:00 p.m., on August 13. Based upon his 

investigation, Inspector Gossard issued§ 104Cd)(2) order 

charging a violation of 30 C.F.R. § 75.1704. The order was 

issued August 14, 1986. 

DISCUSSION WITH FURTHER FINDINGS 

The Secretary's Authority Under§ 104(d) 

§ 104(d) of the Act provides: 

{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 imminent danger, such 

violation is of such nature as could significantly 

and substantially contribute to the cause and 

effect of a coal or other mine safety or health 

hazard, and if he finds such violation to be caused 

by an unwarrantable failure of such operator to 

comply with such mandatory health or safety 

standards, he shall include such finding in any 

citation given to the operator under this Act. If, 

during the same inspection or any subsequent 

inspection of such mine within 90 days after the 

issuance of such citation, an authorized 

represenative of the Secretary finds another 

violation of any mandatory health or safety 

standard and finds such violation to be also caused 

by an unwa·rrantable 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. 

(2) If a withdrawal order with respect to any area in 

a coal or other mine has been issued pursuant to 

paragraph Cl), a withdrawal order shall promptly be 

issued by an authorized representative of the Secretary 

who finds upon any subsequent inspection the existence 

in such mine of violations similar to those that 

resulted in the issuance of the withdrawal order under 

paragraph Cl) until such time as an inspection of such 

mine discloses no similar violations. Following an 

inspection of such mine which discloses no similar 

1183 
violations, the provisions of paragraph Cl) shall again 

be applicable to that mine. 

Respondent argues that the issuance of a§ 104(d)(2) 

order charging an unwarrantable failure violation is improper 

when it results from an "investigation" rather than an 11 inspection. 11 A number of decisions or orders of Commission 

judges have so held. Four of those cases are pending on 

review before the Commission. 

This line of cases began with Judge Steffey's decision 

in Westmoreland Coal Company v. Secretary, Docket No. WEVA 

82-340-R, Order Granting in Part Motion for Summary Decision 

(May 4, 1983). The other decisions follow the reasoning of 

the Westmoreland decision.· 

Westmoreland involved thirteen§ 104(d)(2) orders issued 

July 15, 1982, based on an investigation conducted in 

December 1980, which followed a mine explosion which occurred 

November 7, 1980. Judge Steffey concluded from his study of 

the legislative history of the 1969 Act that an inspection 

was thought to be capable of being conducted in a single day, 

and an investigation could take weeks or months. He thought 

it significant that the 1977 Act permitted a citation or an 

imminent danger closure order to be issued "upon inspection 

or investigation, 11 whereas the 1969 Act requirement that 

unwarrantable failure orders be issued "upon any inspection11 

was continued in the 1977 Act. Judge Steffey concluded that 

"Congress did not intend for unwarrantable failure provisions 

of § 104{d) to be based on lengthy investigations" or upon "a 

belief" that a violation occurred. The orders before him 

were based not "upon an inspection but upon sworn statements 

taken during an accident investigation made 19 months prior 

to the time the orders were issued." Judge Steffey's order 

vacating the withdrawal orders was based on the facts that 

they resulted from subsequent investigations and not from an 

inspection and that they were not issued "promptly" as 

required by § 104(d)(2). 

The "unwarrantable failure" designation was first 

enacted in the Federal Coal Mine Safety Act Amendments of 

1965, Pub. L. 89-376. Called the "reinspection closing 

order," the new provision was added "to stem certain 

recurrent violations of safety standards in underground coal 

mines." S. Rep. No. 89-1055, 89th Cong. 2d Sess., reprinted 

in 1966 U.S. Code Cong. Ad. News 2072, 2075. Attempts to 

limit the scope and applicability of the new provision were 

flatly rejected. Id. at 2077-2079. In including the 

provision in the 1977 Act, Congress again stated that the 

"unwarrantable failure" section should be broadly construed. 

1184 
Noting that the Interior Board of Mine Operations Appeals in 

some early 1969 Act cases had taken "an unneccessarily and 

improperly strict view of the 'gravity test' contained in the 

provision [Eastern Associated Coal Corp. 3 IBMA 331 {1974)]," 

the Senate Report stated its approval of the Board's less 

restrictive reinterpretation in Alabama By-Products Corp., 7 

IBMA 85 (1976). s. Rep. 95-181, 95th Cong., 1st Sess. 31-32 

(1977). Similarly, the Senate Report rejected the Board's 

initial interpretation of the term "unwarrantable failrire to 

comply" as to6 narrow, and fully embraced the liberalized 

definition set forth in Zeigler Coal Company, 7 IBMA 280 

(1977) (discussed further below), which stated that "the 

inspector's judgment must be based upon a thorough 

investigation •• ~" (at 296). 

The legislative history of the 1977 Act shows that 

Congress did not intend· to change the unwarrantable failure 

provisons of the 1969 Act. The language of § 104(d) was 

carried over intact, and after referring to the above 

liberalized reinterpretations by the Interior Board of Mine 

Operations Appeals, the Senate Committee Report stated: 

"These decisions considerably_ restored the unwarrantable 

failure closure order as an effective and viable enforcement 

sanction in essentially the same form •••• " S. Rep. No. 

95-181, 95th Cong., 1st Sess., 3Z (1977), reprinted in Senate 

Subcommittee on Labor, Committee on Human Resources, 95th 

Cong. 2d Sess., Legistative History of the Federal Mine 

Safety and Health of 1977, at 620 (1978). 

The 1969 Act used only the term "inspection" in § 104, 

which provided for issuance of notices of violation 

(citations under the 1977 Act) and closure orders for 

imminent danger and unwarrantable failure to comply. 

However, the case law under the 1969 Act shows that notices 

and orders could be issued without the inspector actually 

observing the cited condition or conduct. Sewel Coal Company 

2 IBMA 80 (1975); Rushton Mining Company, o IBMA 329 (1976); 

Peabody Coal Company, 1 FMSHRC 1785 (1979). 

The 1977 Act uses the term "inspection or 

investigation" in referring to citations (§ 104(a)) and 

imminent danger withdrawal orders (107(a)). It uses only the 

term "inspection" in referring to 104(b) closure orders for 

failure to abate a citation, and ln referring to 104(d) 

citations and orders. 

Even though only the term "inspection" is used in 

§ 104(d), the "findings" required, i.e., an unwarrantable 

failure and a significant and substantial violation, clearly 

require a thorough investigation of the circumstances of the 

1185 
violation, the background facts, the actual or constructive 

knowledge of the mine operator, etc. ~hus, the word 

"inspection" is not per~ a limitation on the inspector's 

role and authority in§ 104(d). Similarly, § 103(g)(l) of 

the Act uses only the t~rm "inspection" concerning the right 

of a.representative of miners (or a miner if there is ·not a 

representative) to require MSHA to come to the mine in 

response to a complaint of a violation of the Act or of an 

imminent danger. Clearly, if the operator corrects the 

condition before the inspector arrives MSHA may still proceed 

with an investigation of the § 103(g) complaint despite the 

use of the term "inspection." Otherwise, the miners' 

important right to complain to MSHA could be frustrated by 

on-off compliance depending on the presence of an inspector. 

Also, there are many kinds of violations that can be 

established by undisputed evidence, ~., mine records or 

statements of mine management, even though the violation may 

have ceased before the inspector arrives. To say that this 

type of evidence cannot substantiate a § 104(d) citation or 

order unless the violation is still in progress when the 

inspector arrives is to pursue a narrow, restrictive 

interpretation of the statute. Congress, however, intended a 

liberal construction of the Act to effectuate its 

purposes. The focus of § 104Cd) is the operator's failure to 

abide by a safety and health requirement, not the inspector's 

discovery of the violation in progress. 

For all these considerations, I must disagree with those 

of my colleagues who have held that an "inspection" as used 

in § 104(d) limits the inspector's authority to apply that 

section only to violations he observes in progress. I hold 

that § 104(d) citations and orders may be issued for 

violations that are reasonably recent, consistent with the 

prompt disposition intended by§ 104(d), even though the 

violation ceased before.the inspector's arrival on the scene. 

Relevant factors in·determining the reasonableness, of the 

inspector's use of § 104(d) authority may include the recency 

of the violation, the quality of the information relied upon, 

the time spent in the investigation, the extent to which 

controlling facts are undisputed, ~., facts that are 

evident from mine records, statements of mine management, or 

undisputed statements of eye witnesses. 

In the instant case, the violation was quite recent, 

only the day before the inspector arrived, and it was quickly 

established by acknowledged, undisputed facts. These facts 

showed that the hoist had been deliberately shut down from 

about 9:30 a.m. to 3:00 p.m., on August 13, 1986. The 

inspector also found that the approved escape facilities plan 

required that a person trained to operate the hoist shall be 

1186 
available when miners are underground to transport injured 

persons to the surface. He reasonably concluded that this 

provision of the approved plan meant that mine management was 

required to keep the hoist in service while miners were 

underground. 

Title 30, C.F.R. § 75.1404 Escapeways provides in 

pertineI1t part: 

Except as provided in §§ 75.1705 and 75.1706 at 

least two separate and distinct travelable 

passageways which are maintained to insure passage 

at all times of any person, including disabled 

persons, and which are to be designated as 

escapeways ••• shall be maintained in safe 

condition and properly marked •••• Escape 

facilities approved by the Secretary or his 

authorized representative, properly maintained and 

frequently tested, shall be at or in each escape 

shaft or slope to allow persons to escape quickly 

to the surface in the event of an emergency. 

[Emphasis added.] 

There is no provision or exception allowing the operator 

to close or remove the approved escape facilities for 5 1/2 

hours while miners are underground. It was therefore a 

violation of this section to ··shut down the hoist while 

miners were underground. 

Was the Violation "Unwarrantable"? 

The Senate Report on the 1977 legislation rejected the 

Interior Board of Mine Operations Appeals' initial 

interpretation of the phrase "unwarrantable failure to 

comply" in Eastern Associated Coal Corporatin, 3 IBMA 1331, 

356 (1974), as too narrow, and fully embraced the more 

liberal definition set forth in Zeigler Coal Company, 7 IBMA 

280 (1977), as follows (quoted in the Senate Report from the 

decision's syllabus}: The phrase unwarrantable failure to 

comply means "the failure of an operator to abate a condition 

or practice constituting a violation of a mandatory standard 

it knew or should have known existed, or the failure to abate 

such a condition or pr.actice because of indifference or lack 

of reasonable care." s. Rep. 181, 95th Cong., 1st Sess. 

31-32 (1977}, reprinted in Subcommittee on Labor, Senate 

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

Legislative History of the Federal Mine Safety and Health Act 

of 1977, at 619-620 (1978). 

1187 
The Zeigler case was on remand from the United States 

·court of Appeals for the District of Columbia Circuit, which 

.had reversed the Interior Board and indicated a strong 

rejection of the Board's interpretative approach in Eastern 

Associated Coal Corporation. 

On remand, in describing its earlier interpretation of 

§ 104(d), the Board stated: "In Eastern Associated Coal 

Corp., supra, 3 IBMA at 356, we gave the legislative history 

only passing reference, preferring instead to place our own 

gloss upon the statutory language ['unwarrantable failure to 

comply']." 7 IBMA at 288. The earlier "gloss" was actually 

agency rejection of a clear Congressional intent. The Board 

described this prior interpretation as follows (7 IBMA at 

28 6) : 

In past cases, we have taken the position that an 

inspector's finding of an unwarrantable failure to 

comply should be sustained where MESA establishes 

by a preponderance of the evidence that the 

violation in question was the product of 

intentional or knowing failure to comply or a 

reckless disregard for the health and safety of the 

miners. We rejected the theory that the term 

"unwarrantable failure to comply" is synonymous 

with ordinary negligence in the occurrence of a 

violation. Eastern Associated Coal Corp., 3 IBMA 

331, 356, 81 I.D. 567, 1974-1975 OSHD par. 18,706, 

aff'd on reconsideration, 3 IBMA 383 (1974); 

Freeman Coal Mining Company, 3 IBMA 434, 81 I.D. 

723, 1974-1975 OSHD par. 19,177 (1974). 

In remanding the first Zeigler decision, the Court of 

Appeals cautioned the Board to take due account of the 

legislative history of § 104(d) (see 7 IBMA at 287). On 

remand the Board quoted and followed the legislative history, 

overruled its Eastern Associated Coal decision, and 

reinterpreted the meaning of "unwarrantable failure to 

comply" based on the Congressonal intent, not the "gloss" the 

Board had previously put on it. In doing so, the Board 

recognized the following two pertinent pieces of the 1969 

legislative history of the phrase "unwarrantable failure to 

comply" as used in§§ 104(c)(l) and 104(c)(d)(2) of the 1969 

Act, which are identical to §§104(d)(l) and 104(d)(2) of the 

1977 Act {at 7 IBMA 289): 

The primary piece of legislative history 

is the definition of the term "unwarrantable 

failure" set forth in the repott of the 

Conference Committee, House Comm. on Ed. and Labor, 
Legislative History, Federal Coal Mine Health and 

Safety Act, Comm. Print, 9lst Congress, 2d Session 

(hereinafter referred to as Leg. Hist.}, pp. 

1108-1151. At page 1119, the Committee defined 

that term as follows: 

The term "unwarrantable failure" 

means the failure of an operator 

to abate a violation he knew or 

· should have k~own existed. 

A secortdary source of peitinent legislative 

history is the Statement of the House Managers 

which was a report by the House conferees to the 

full House on the outcome of the Conference 

Committee's deliberations. In relevant part 1 the 

House Managers stated at Leg. Hist., p. 1030: 

***The managers note that an 

"unwarrantable failure of the 

operator to comply" means the 

failure of the operator to abate 

a violation he knew or should 

have known existed, or the failure to abate a violation because 

of a lack of due diligence, or 

because of indifference or lack 

of reasonable care on the opera tor's part. 

Thus in Zeigler, based upon the definition clearly 

expressed in the 1969 legislative history, the Board 

overruled its prior board-made definition, and reached the 

following holding: 

[W]e hold that an inspector should find that 

a violation of any mandatory standard was caused by 

an unwarrantable failure to comply with such 

standard if he determines that the operator 

involved has failed to abate the conditions or 

practices constituting such violation, conditions 

or practices 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. The inspector's 

judgment in this regard must be based upon a 

thorough investigation and must be reasonable. 

(7 IBMA 295-296.] 

1189 
Iri reaching this holding, the Board added: "We are well 

award that the terms of fault employed by the conferees and 

the House Managers are largely synonymous with negligence, 

one of the most familiar terms in American law." 7 IBMA 296, 

Fn. 4. 

In the 1977 Act, Congress carefully chose to retain 

§ 104Cd) intact, without changing a word and by adopting the 

clear, decisive legislative history of the phrase 

"unwarrantable failure to comply." I therefore hold that the 

phrase means the failure of an operator to abate a condition 

or practice constituting a violation of a mandatory standard 

it knew or should have known existed, or the failure to abate 

such a condition or practice because of indifference or lack 

of reasonable care. 

Respondent relies upon the. Commission's decision in 

United States Steel Corporation v. Secretary, 6 FMSHRC l423 

(1984), in contending that the Commission has changed the 

definition approved by Congress in the 1969 legislative 

history, repeated by the Interior Board in Zeigler, and again 

expressly approved in the 1977 legislative history of 

§ 104(d). 

I do not interpret the Commission's decision as 

requiring a change in the legislative history definition of 

"unwarrantable failure to comply." In United States Steel, 

the Commission did not consider the 1969 legislative history 

(which is crucial to an understanding of the current 

§ 104(d)), and the Commission was careful to point out that 

the case before it did "not require [it] to ex~mine every 

aspect of the Zeigler construction" (6 FMSHRC at 1437). The 

Commission's statement that followed 

but we concur with the Board to the extent that an 

unwarrantable failure to comply may be proved by a 

showing that the vi~lative condition or practice 

was not corrected or remedied, prior to issuance of 

a citation or order, because of indifference,' 

willful intent, or a serious lack of reasonable 

care --

does not purport to be a restrictive definition based upon 

reconsideraton of the legislative history, but is merely one 

kind of proof of an "unwarrantable failure to comply." If 

the Commission's language were intended to be a new, 

restrictive definition, rejecting the holding in Zeigler and 

the unequivocal definition in both the 1969 and 1977 

legislative histories, it would too closely resemble the 

overruled and Congressionally-repudiated Eastern Associated 

1190 
coal decision of the Interior Board to be expected to be 

announced by the Commission without its careful analysis and 

reinterpretation of the legislative history. Absent such an 

analysis and reinterpretation by the Commission, I do not 

construe the Commission's decision in United States Steel 

corporation as rejecting the definition stated in Zeigler and 

in the 1969 and 1977 legislative histories. 

Whether the clear legislative history definition or the 

example added by the Commission in United States Steel 

Corporation is applied in this case, I find that Respondent 

demonstrated an unwarrantable failure to comply with the · 

cited safety standard when it deliberately shut down the 

hoist for 5 1/2 hours on a production day. Respondent knew 

or should have known that its approved escape facilities plan 

and 30 C.F.R. § 75.1704 required that it maintain the hoist 

in operating condition while miners were underground, and it 

acted with indifference to the safety standard and with a 

serious lack of reasonable care when it closed the facility 

on a production day. It could have readily changed the hoist 

rope on a weekend, when miners were not underground. 

Was the Violation "Significant and Substantial"? 

A "significant and substantial" violation is described 

in§ 104(d)(l) of the Act as a violation of "such a nature as 

could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

The Commission interpreted this language in Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (198l), 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 the 

violation, there exists a reasonable likelihood that the 

hazard contributed to will result in an 

injury or illness of a reasonably serious nature. 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984), the 

Commission discussed the standard of proof for a significant 

and substantial finding, as follows: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum, the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard--that is, a measure of 

danger to safety--contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed 

1191 
to will result in an injury1 and (4) a reasonable 

likelihood that the injury in question will be of a 

reasonably serious nature. 

The purpose of the approved escape facility, the hoist, 

is to provide safe and relatively fast transportation of 

injured persons from the mine. This facility is an important 

emergency protection of miners who may be injured underground. 

It is faster than using a stretcher to carry a miner up the 

steep, 620 foot slope, and it is. superior to a stretcher in 

allowing more effective first-aid and immobilizing care. For 

example, a stretcher case could not be administered CPR while 

moving, but an injured person could receive CPR and other 

first aid while going up the hoist1 a stretcher case would be 

jostled while being carried up the long, steep slope, but an 

injured person on the hoist would not be jostled. Because of 

the superiority of the hoist over using a stretcher to ascend 

the slope, the established practice since the hoist was 

approved as an escape facility was to transport injured 

persons out of the mine by the hoist rather than by stretcher. 

By shutting down the hoist for 5 1/2 hours while the day shift 

miners were underground, mine management consciously removed 

an important emergency protection of the miners. This 

reduction of their safety and health protection could 

significantly and substantially contribute to the cause and 

effect of aggravated injury, or even death, ~., in case of 

severe shock, internal bleeding or burns. The violation was 

therefore significant and substantial within the meaning of 

104(d). 

The Amount of a Civil Penalty 

Respondent is a large operator. Its annual production 

is about 8 1/2 million tons, and its No. 2 mine produces over 

400,000 tons annually. The No. 2 mine has a history of 166 

paid violations in the 24 months preceding the order issued in 

this case. 

Considering the six criteria for civil penalties in 

§ llOCi) of the Act, I find that a civil penalty of $400 is 

appropriate for the viol~tion found herein. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in these proceedings. 

2. Respondent violated 30 C.F.R.· § 75.1704 as charged in 

Order No. 2697882. 
ORDER 

WHEREFORE IT IS ORDERED that: 

1. Order No. 2697882 is AFFIRMED, and the contest 

proceeding in PENN 86-297-R is DISMISSED. 

2. Respondent shall pay the above civil penalty of $400 

within 30 days of this Decision. 

Distribution: 

uJ~=1-~v~ William Fauver 

Administrative Law Judge 

Covette Rooney, Esq., Of~ice of the Solicitor, U.S. Department 

of Labor, 3535 Market Street, Room 14480 Gateway Building, 

Philadelphia, PA 19104 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, 58th Floor, 6700 

Grant Street, Pittsburgh, PA 15219 (Certified Mail) 

kg 

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*U. S. GOVERNMENT ERINTING OFFICE 1987: 181-224/63006