June 1982 

Ccmnission Decisions 

06-01-82 Amax Lead Conpany of Missouri CENT 81-63-M Pg. 975 

06-04-82 Frederick G. Bradely v. Belva Coal Co. WEVA 80-708-D Pg. 982 

06-21-82 Puerto Rican Carent Co. , Inc. SE 81-25-M Pg. 997 

06-21-82 Central Ohio Coal Co. LAKE 81-78 Pg. 1000 

Administrative Law Judge Decisions 

06-03-82 Cowin and Calpany, Inc. CENT 81-250-RM Pg. 1004 

06-03-82 Jim Walter Resources, Inc. SE 82-12 Pg. 1007 

06-03-82 Ottawa Silica Co. LAKE 81-163-LM Pg. 1013 

06-03-82 S.A.M. Coal Co., Inc. SE 81-21 Pg. 1051 

06-04-82 Phelps fudge Cbrp. CENT 80-349-M Pg. 1078 

06-07-82 Kennecott Copper Corp. WEm' 81-17-M Pg. 1084 

06-07-82 lt>untain West Construction, Inc. WEST 81-219-M Pg. 1091 

06-08-82 Canada Coal Co. , Inc. KENT 82-111-D Pg. 1094 

06-08-82 Macon County Material, Inc. LAKE 80-11-M Pg. 1099 

06-08-82 United States Steel Cbrp. LAKE 82-35-M Pg. 1104 

06-08-82 Mathies Coal Co. PENN 82-3-R Pg. 1111 

06-08-82 Mathies Cbal Co. PENN 82-5 Pg. 1121 

06-08-82 Allied Olemical Corp. WEST 81-243-M Pg. 1134 

06-14-82 Phillips Uranium Cbrp. CENT 79-282-M Pg. 1136 

06-21-82 Martiki Coal Corp. KENT 81-77 Pg. 1138 

06-21-82 Adams Coal Enterprises, Inc. KEITT 82-10 Pg. 1159 

06-24-82 AnRx Olemical Corp. CENT 82-93-RM Pg. 1161 

00-25-82 Sandra Cantrell v. Gilbert Industrial WES.r 82-23-lld Pg. 1164 

06-25-82 Davis Coal Co. WEVA 80-565 Pg. 1168 

06-28-82 San Juan County Highway Dept. WEST 79-290-M Pg. 1203 
Commission Decisions 
JUNE 

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

Secretary of Labor, MSHA v. Metric Constructors, Inc., Docket No. SE 80-31-DM. 

(Judge Lasher, April 29, 1982) 

Local Union 1889, District 17, UMWA v. Westmoreland Coal Company, Docket No. 

WEVA 81-256-C. (Judge Steffey, Sunnnary Decision, April 28, 1982) 

Secretary of Labor, MSHA v. Consolidation Coal Company, Docket Nos. WEVA 80-116-R, 

etc. (Judge Koutras, Decision on Remand, April 28, 1982) 

Secretary of Labor, MSHA v. United States Steel Corporation, Docket Nos. 

WEST 80-386-R, etc. (Judge Boltz, April 29, 1982) 

Secretary of Labor, MSHA v. Cathedral Bluffs Shale Oil Company, Docket No. 

WEST 81-186-M. (Judge Morris, May 12, 1982) 

United Mine Workers of America v. Secretary of Labor, MSHA, Docket No. 

LAKE 82-70-R. (Judge Merlin, Dismissal, May 21, 1982) 

Review was Denied in the following case during the month of June: 

Carolina Stalite Company v. Secretary of Labor, MSHA, Docket Nos. SE 80-21-M, 

etc. (Judge Lasher, May 14, 1982) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K ST~EET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 1, 1982 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. CENT 81-63-M 

AMAX LEAD COMPANY OF MISSOURI 

DECISION 

This case is before the Commission on interlocutory review. The 

issue presented is whether the administrative law judge properly disapproved the parties' proposed settlement agreement on the ground that 

the settlement contained exculpatory language inconsistent with the 

general enforcement scheme of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et~· (Supp. III 1979). For the reasons that 

follow, we hold that the judge was correct· in rejecting the partiesv 

proposed settlement. · 

On April 23, 1980, Amax Lead Company of Missouri was issued two 

citations alleging violations of 30 C.F.R. § 57.5-5, a mandatory health 

standard regulating miner exposure to airborne contaminants. Thereafter, 

on January 5, 1981, the Secretary filed a petition for assessment of a 

penalty with the Commission. On April 6, 1981, the Secretary and Amax 

filed with the judge a joint motion to approve settlement. 29 C.F.R. 

§ 2700.30(a). lf In an order issued on April 9, 1981, the judge 

rejected the proposed settlement agreement because of language contained 

in the following paragraph: 

iThe parties furthe+ a.gree that the elements of this settlement 

agreement apply only to the particular citations herein and do not 

prejudice the Secretary.in making any future determinations with 

respect to [Amax'] operations.. [Amax'] consent to enter into this 

settlement agreement does not constitute an admission of any violation of the Act or the regulations or standards promulgated 

thereunder. The parties further agree that any factual admissions 

made by [Amax] in this settlement agreement are for the purposes of 

settlement only and shall not be deemed to be an admission by 

[Amax] for the purposes of any subsequent proceeding brought in any 

judicial or administrative forum by the United States Government or 

by any other party. 

1/ 29 

infra). 

C.F.R. § 2700.30(a) is based upon 30 U.S.C. § 820(k)(text quoted 

Commission Rule 30(a) provides: 

General. No proposed penalty that has been contested 

before the Commission shall be compromised, mitigated, or 

settled except with the approval of the Commission after 

agreement by all parties to the proceeding. 

975 82-6-1 
The judge found this paragraph objectionable because the exculpatory language made "uncertain the existence of the alleged violations." 

In his order denying approval of the settlement, the judge concluded 

that the exculpatory language impeded the Commission's ability to 

determine the operator's history of violations for purposes of assessing 

future penalties. 30 U.S.C. § 820(i). The judge also concluded that 

the exculpatory language could possibly preclude the Secretary in future 

enforcement actions from using the violations alleged he~e to establish 

a pattern of violations under sections 104(e) and 108(a)(2) of the Mine 

Act. The judge stated, however, that he would approve a settlement 

containing the following or similar exculpatory language: 

Nothing contained herein shall be deemed an admission 

by [Amax] of the violation of the Federal Mine Safety 

and Health Act or any regulation or standard issued 

pursuant thereto in any action other than an action 

or proceeding under the Federal Mine Safety and Health 

Act. 

Following the judge's rejection of the parties' proposed settlement, Amax submitted amendatory settlement language to the Secretary for 

approval. That proposed amendatory language changed the paragraph of 

the settlement agreement objected to by the judge to read as follows: 

The parties further agree that the elements of this settlement agreement apply only to the particular citations 

herein and do not prejudice the Secretary in making any 

future determinations with respect to [Amax'] operations. 

[Amax'] consent to enter into this settlement agreement 

does not constitute an admission of any violation of the 

Act or the regulations or standards promulgated thereunder. Nothing contained herein shall be deemed an admission by [Amax] of a violation of the Federal Mine 

Safety and Health Act or any regulation or standard 

issued pursuant thereto, in any judicial or administrative 

forum, by the U.S. Gove~nment or by any other party, 

other than in an action or proceeding brought by the U.S. 

Government under the Federal Mine Safety and Health Act. 

(Amendatory language emphasized.) 

The Secretary rejected the proposed amendment. 

Amax then submitted a second revised amendment to the Secretary for 

approval. As further amended, the paragraph of the settlement agreement 

objected to by the judge read: 

The parties further agree that the elements of this settlement agreement apply only to the particular citations herein and do not prejudice the Secretary in making any future 

determinations with respect to [Amax'] operations. [Amax'] 

consent to enter into this settlement agreement does not 

constitute an admission of any violation of the Act or the 

regulations or standards promulgated thereunder. The parties 

976 
agree that these two citatdions cannot be used against [Amax] 

in any judicial or adminiSltirative forum, by the U.S. Government or by any other partw: other than in an action or 

proceeding brought by thEyU.S. Government under the Federal 

Mine Safety and Health Ad:t.h. 

(Amendatory language emphasiza:S.) 

The Secretary rejected this pu::iaposed amendatory language also. 

Thereafter, Amax filed a.Etllbtion with the judge seeking the judge's 

reconsideration of his order d:lisapproving the parties' original proposed 

settlement. Amax also alterna:tEively sought either the judge's approval 

of the amendatory language thiEt ·the Secretary had rejected and an order 

enforcing the settlement as amended, or the judge's certification to the 

Commission of his order denyirtg1the requested relief. Amax' motion was 

opposed by the Secretary. Y . _?_ 

The judge issued an orde10:rdenying the motion insofar as it sought 

reconsideration of his order dftsapproving the settlement and an order 

enforcing the settlement in t1:fu",proposed amended form. The judge, 

however, granted the motion irorpart and certified to the Commission for 

review his interlocutory ordeID:rdenying the relief requested by Amax. We 

subsequently granted the judg~\s certification of his interlocutory 

ruling, as well as a petitiori.tfor interlocutory review filed by Amax. 

29 C.F.R. § 2700.74(a). 

Preliminary to our disculsiaion of the judge's ruling, we emphasize 

the Commission's authority to::yreview settlements entered into between 

the parties in contested pena:{tcy proceedings. The source of our authority is section llO(k) of th~Mine Act. 30 U.S.C. § 820(k). Section 

llO(k) in part provides, "NQ pifoposed penalty which has been contested 

before the Commission unden1silc:tion 105(a) shall be compromised, mitigated or settled except with&e approval of the Commission." Accordingly, 

it is clear that section 110(k1)~ confers upon the Commission the statutory 

authority either to approve ow,-to reject settlements in contested penalty 

proceedings. As we observed,:h.n. Co-op Mining Company, 2 FMSHRC 3475, 

3475-3476 (1980), 11 [S]ection ::lllO(k) of the Mine Act places an affirmative duty upon us to oversee Caettlements." 

With respect to the factef..of this case, we conclude that the 

judge was correct in disappro~ng the parties' joint proposed settlement. We hold that parties a'ma free to admit or to deny the fact of 

a violation in settlement agrEements. Inherent in the concept of 

settlement is that the partiea:-;find and agree upon a mutually acceptable 

Y The Secretary altered hllll initial position and submitted, as he 

does on review, that the judg~ correctly rejected the parties' proposed 

settlement. The Secretary al~o submitted that he was not bound to the 

amendatory settlement languag~ proposed by Amax because he did not agree 

to the changes. 

977 
position that resolves ~he dispute and that obviates the need for further 

proceedings. Whether that mutual position involves an admission or denial 

of a violation under the Mine Act will normally be left to the parties. 

The Commission's only, task in the event of a proposed settlement is 

to determine whether approval of the parties' agreement is in the public 

interest. Here, however, the joint settlement of the parties contained 

exculpatory language that was inconsistent with the enforcement scheme 

of the Act. 

The language proposed by the Secretary and Amax could have prevented 

any consideration of the alleged violations involved here in future 

proceedings arising under the Mine Act. Amax conceivably could attempt 

to use the settlement as a shield in future litigation to avoid certain 

key enforcement provisions contained in the Act. For example, if such 

language were approved, settled violations could not then serve to 

establish the operator 1 s history of previous violations as contemplated 

by section llO(i) or as a basis for a pattern of violations under section 

104(e) or 108(a)(2) of the Mine Act. 1/ Such exculpatory language as 

originally proposed by these parties could prevent some of the Mine 

Act's strongest compliance incentives from coming into operation. The 

result could well be a considerable weakening of the agency 1 s enforcement 

capabilities and, as a result, could jeopardize the health and safety of 

miners. Although the effect of the parties 1 settlement could be determined in a future case in which that settlement is relied upon, we do 

not find that persuasive or a reason for approving the settlement at 

this time. To do so could allow the Secretary to disregard concessions 

he had previously agreed to which the Commission had approved. For 

these reasons, we affirm the judge's order rejecting the settlement 

submitted to him by the parties. !±_/ 

Amax additionally requests approval of one of the amended settlements proposed by the operator. We disagree with the judge's statement, 

in his order denying enforcement of the amended settlement, that "the · 

retention of the sentence preceding the exculpatory phrase is inconsistent with the amendatory language" and that the phrase creates an 

ambiguity as to the validity of the involved citations. We do not see 

such an ambiguity. Although,Alnfix refused to admit that a violation 

occurred, it has quite clearly conceded that, for purposes of any 

3/ Also, were this a case in which the involved violations were the 

result of the operator's unwarrantable failure to comply with the cited 

standard, approval of the exculpatory language could prevent the settled 

violations from being used to establish an unwarrantable failure chain 

of violations under sections 104(d)(l) and 104(d)(2) of the Act. 

!!_! As did the judge, we find no difficulty with the exculpatory 

language as it relates to proceedings arising outside the scope of the 

Mine Act's coverage. In our view, the effect of such exculpatory 

language is properly left to the appropriate forum. 

978 
proceedings under the Mine Act, the violations were to be treated as if 

established. 5/ There is no ambiguity as to the future effect under the - . 

Mine Act to be given to. the violations. The violations could serve as a 

basis for implementing the entire enforcement and compliance scheme of 

the Act noted above. Therefore, we believe that the proposed amendatory 

language is consistent with the enforcement scheme of the Mine Act. §j 

However, we cannot approve such an "amended settlement" because the 

parties have reached no mutual agreement concerning it. Because the 

Secretary did not agree to the amendatory language, he cannot be bound 

to the terms of the settlement as unilaterally amended by Amax. Thus, 

the only settlement agreement that was before the judge, and that is now 

before us on review, is the settlement submitted to the judge for 

approval on the parties' joint motion. 

Finally, we note that approval of the amendatory settlement language is consistent with our decision in Co-op Mining Company, supra. 

There, in reversing a judge's order approving settlement on the ground 

that the parties' stipulation showed that the alleged violation did not 

occur, we stated: 

Amax first proposed amendment in part read: 

Nothing contained herein shall be deemed an admission by 

[Amax] of a violation of the Federal Mine Safety and Health 

Act or any regulation or standard issued pursuant thereto, 

in any judicial or administrative forum, by the U.S. Government or by any other party, other than in an action or 

proceeding brought by the U.S. Government under the Federal 

Mine Safety and Health Act. 

(Emphasis added.) 

Amax' second proposed amendment similarly in part read: 

The parties agree that these two citations cannot be used 

against [Amax] in any judicial or administrative forum, by 

the U.S. Government or by any other party, other than in 

an action or proceeding brought by the U.S. Government 

under the Federal Mine Safety and Health Act. 

(Emphasis added.) 

6/ The proposed amendatory language is also consistent with our 

~uthority under section llO(i) of the Mine Act "to assess all civil 

penalties" provided for in the Act •. In that regard, section llO(a) of 

the Mine Act in part provides that "[t]he operator of a coal or other 

mine in which a violation occurs of a mandatory health or safety standard 

or who violates any other provision of this Act, shall be assessed a 

civil penalty by the Secretary." Because Amax would have been admitting 

a violation for purposes of Mine Act proceedings, had the amendatory 

settlement language been agreed to by both parties and approved by the 

judge, the assessment of a penalty would have been within the scope of 

our statutory authority despite Amax' general denial of a violation. 

979 
The legislative history of the [Mine Act] states, 'The 

purpose of a civil ,penalty is to induce those officials 

responsible for the operation of a mine to comply with 

the Act and its standards.' . [Fn. omitted.] To assure 

this purpose is served section llO(k) of the Mine Act 

places an affirmative duty upon us to oversee settlements. Compliance with the Act and its standards is 

not fostered by payment of a civil penalty where the 

stipulated facts establish that no violation occurred. 

2 FMSHRC at 3475-76. 

As the above passage indicates, our holding in Co-op Mining Company was 

based upon our concern with promoting operator compliance with the Mine 

Act. Because the settlement agreement in that case established that the 

alleged violation did not take place, approving the settlement would not 

have promoted the operator's future compliance with the Act. In this 

case, however, with respect to the amendatory language under discussion 

we are not presented with a settlement that establishes that no violation occurred. Rather, a violation is established even though the 

operator makes no "admission" to that effect. 

Accordingly, the judge's order denying approval of the settlement 

agreement proposed by both parties is affirmed and the case is remanded 

for further proceedings including, of course, the opportunity for both 

parties to proceed with an appropriate settlement in light of this 

decision. 

Commissioner Lawso~, concurring in par in part: 

Contrary to the majority, I agree with th /j the Secretary 

that the amendatory language creates an ambigu'ty as to the validity of 

the involved citations. One cannot deny the e 1i tence of a violation 

and at the same time agree to the payment of a ivil penalty therefor, 

since all penalties must be predicated upon the existence of a violation. 

Section llO(a); Co-op Mining Company, supra. However, since any further 

settlement which is proposed containing exculpatory language must be 

agreed to by all parties to the proceeding, the Secretary has the power 

to reject any such language which he believes to be contrary to the Act 

or the public interest. 

A. E. Lawson, Commissioner 

980 
Distribution 

Gerald T. Carmody, Esq. 

Bryan, Cave, McPheeters & McRoberts 

500 North Broadway 

St. Louis, Missouri 63102 

Debra Feuer, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge John Morris 

FMSHRC 

333 West Colfax Ave. 

Denver, Colorado 80204 

981 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

FREDERICK G. BRADLEY 

v. 

BELVA COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 4, 1982 

Docket No. WEVA 80-708-D 

DECISION 

This discrimination case arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et~· (Supp. III 1979), We are 

asked to decide whether a decision by a state agency denying a miner 1 s 

claim of discrimination under a state mine safety law precludes litigation of his discrimination claim under the Mine Act, or of issues arising 

under the Mine Act claim. On the basis <tif the record in this case, we 

affirm the judge's determination that the state action did not preclude 

the miner's separate action under the Mine Act. We also affirm the 

judge's conclusion that the miner had been discriminatorily discharged 

in violation of the Mine Act, but remand for recomputation of the back 

pay award. 

I. 

Frederick Bradley was employed as a section foreman at Belva Coal · 

Company's No. 5-B underground coal mine in Logan County, West Virginia. 

His duties included coal production and supervising the abatement of 

safety violations. He had a reputation for being a productive and 

safety-conscious miner. On a number of occasions prior to his discharge 

in June 1980, he complained about safety hazards in his section. Bradley 

made some of his complaints to his immediate supervisor, Mine Foreman 

Larry Davis. 

On June 10, 1980, an MSHA inspector inspecting the 5-B mine issued 

three withdrawal orders and nine or ten citations for violations of 

mandatory safety standards. The cited conditions included excessive 

accumulations of combustible materials in the haulageways, inadequate 

short-circuit protection, incorrectly hung curtains, and damage to a 

trailing cable that had been driven over by mobile equipment. Bradley's 

crew spent a portion of its shift correcting the violations. The withdrawal orders were terminated the same day and most of the violations 

were abated. 

982 82-6-3 
On June 11, 1980, the following day, the same inspector returned to 

the mine and observed conditions similar to those that had led to the 

citations and orders on June 10. He issued more citations and three 

more withdrawal order~, one of which covered a continuous miner trailing 

cable that had been run over and damaged by mobile equipment. The cable 

was not energized at the time the order was issued, but was still connected to the continuous miner and to a power source. The inspector 

agreed that the damaged part of the cable could be replaced by a permanent 

splice. The cable was "red tagged" to indicate that it was not to be 

used, but was not "locked out"--that is, locks were not applied to the 

electrical equipment to prevent energization. 

The miners immediately began abatement work. Mine Foreman Davis 

instructed Bradley to have cribs brought up for roof support in the face 

area, where the inspector had found inadequate support. Bradley directed 

Thomas Minton, the scoop operator, to take the scoop and a load of 

cribs. Bradley and another miner began hanging the continuous miner 1 s 

damaged trailing cable so that the scoop could pass. Foreman Davis told 

Bradley not to bother hanging the cable and directed him to let the 

scoop run over it. Davis testified that he perceived no danger in 

having the scoop run over the cable because the cable was not energized 

and its damaged section was to be cut away and replaced. Bradley refused 

to comply with Davis 1 order, and hung the cable while Minton drove by in 

the scoop. Bradley and Davis exchanged some words during this incident. 

Shortly after the cable incident, Davis told Bradley to bring a 

tape measure up to the face where the cribs were being installed. Davis 

needed to measure a place in the work area that the inspector had 

indicated was too wide. Bradley was engaged in other compliance work 

and either directly or indirectly refused, complaining about being asked 

to do a number of tasks at the same time. In the words of the judge (3 

FMSHRC at 437), "heated words were exchanged" between the two, and Davis 

informed Bradley that he was fired. Bradley testified that Davis told' 

him the firing was for Bradley's 11 attitude." Tr. 35-6. Bradley left 

the mine, and later Davis filled out a personnel form indicating that he 

had fired Bradley for 11 unsatisfactory work," "disobedience," and "insubordination." l/ 

On June 27, 1980, Bradley filed a complaint of unlawful discrimination with the West Virginia Coal Mine Safety Board of Appeals and alleged a 

ll At one point on June 11 after Bradley had arrived on the surface, 

Davis telephoned from below and offered to let Bradley return to work. 

Bradley responded that he had been fired, and would discuss the matter 

with Belva management. Tr. 39-40, 175. (Davis testified that he offered 

the job back solely out of sympathetic concern over the economic effects 

on Bradley of a termination. Tr. 175.) Bradley discussed his situation 

with Belva management officials, Conally Carleton and James Miller. 

Miller told Bradley to "leave the mountain." Tr. 40. Miller had been 

below with Davis earlier, and had apparently overheard the last argument 

between Davis and Bradley. Tr. 39. Neither Carlton nor Miller testified 

at thehearing. 

983 
violation of that State's Coal Mine Safety Law (W. Va. Code § 22-1-

21). 2:_/ The state action was heard by a three-member Board on August 26, 

1980. At the state hearing, Bradley was represented by counsel and had 

the opportunity to present witnesses and evidence and to cross-examine 

Belva's witnesses. A transcript of the testimony was prepared by a 

court reporter. On December 12, 1980, the State Board issued the 

following decision: 

2:_/ W. Va. Code § 22-1-21 provides: 

(a) No person shall discharge or in any other way discriminate 

against or cause to be discharged or discriminated against any 

miner or any authorized representative of miners by reason of the 

fact that he believes or knows that such miner or representative 

(1) has notified the director, his authorized representative, or an 

operator, directly or indirectly, of any alleged violation or 

danger, (2) has filed, instituted or caused to be filed or instituted any proceeding under this law, (3) has testified or is about to 

testify in any proceeding resulting from the administration or 

enforcement of the provisions of this law. No miner or representative shall be discharged or in any other way discriminated against 

or caused to be discriminated against because a miner or representative has done (1), (2) or (3) above" 

(b) Any miner or a representative of miners who believes that 

he has been discharged or otherwise discriminated against, or any 

miner who has not been compensated by an operator for lost time due 

to the posting of a withdrawal order, may, within thirty days after 

such violation occurs, apply to the appeals board for a review of 

such alleged discharge, discrimination, or failure to compensate. 

A copy of the application shall be sent to such person who shall be 

the respondent. Upon receipt of such application, the appeals 

board shall cause such investigation to be made as it deems appropriate. Such investigation shall provide an opportunity for a 

public hearing at the request of any party to enable the parties to 

present information relating to such violation. The parties shall 

be given written notice of the time and place of the hearing at 

least five days prior to the hearing. Mailing of the notice of 

hearing to the charged party at his last address of record as 

reflected in the records of the department of mines shall be deemed 

adequate notice to the charged party. Such notice shall be by 

certified mail, return receipt requested. Any such hearing shall 

be of record. Upon receiving the report of such investigation, the 

board shall make findings of fact. If it finds that such violation 

did occur, it shall issue a decision within forty-five days, 

incorporating an order therein, requiring the person committing 

such violation to take such affirmative action to abate the 

violation as the board deems appropriate, including, but not 

limited to, the rehiring or reinstatement of the miner or representative of miners to his former position with back pay, and also 

compensation for the idle time as a result of a withdrawal order. 

If it finds that there was no such violation, it shall issue an 

order denying the application. Such order shall incorporate the 

board's findings therein. If the proceedings under this section 

relative to discharge are not completed within forty-five days of 

the date of discharge due to delay caused by the operator, the 

(footnote continued) 

984 
A majority of the Board finds that the dispute between 

Mr. Bradley and his superior did not involve safety 

matters and at no time did the matter of the individual 

safety of the miner arise. In the opinion of a majority 

of the Board, Mn. Bradley was terminated for insubordination. The complaint of Frederick G. Bradley is, therefore, dismissed. 

Pursuant to state law, Bradley filed an appeal of the Board's decision 

in the Circuit Court of Kanawha County, West Virginia, on January 15, 

1981. The record does not reflect that a judicial decision has yet 

issued. 

While the state action was pending before the State Board, Bradley 

filed a complaint of unlawful discrimination with the Commission on 

September 23, 1980. 3/ Shortly after issuance of the State Board 

decision, Belva filed with the Commission a "Motion to Dismiss or in the 

Alternative .•. to Defer Proceedings." Belva contended that the State 

Board decision precluded litigation of Bradley~s federal claim pursuant 

to section lOS(c) of the Mine Act under the "doctrine of res judicata 

and collateral estoppel. 11 Belva also argued that "principles of comity" 

required dismissal of the federal proceeding. In the alternative, Belva 

sought deferral of the federal proceedings until Bradley had exhausted 

state appeal procedures. In an unpublished order dated January 12, 1981 

("Unpub. Order"), the Connnission 1 s administrative law judge denied 

Belva's motion. The administrative law judge held the hearing January 28 

1981, and issued a decision on February 11, 1981, concluding that 

Bradley had suffered unlawful discrimination and ordering Belva to 

reinstate him with back pay. 3 FMSHRC 433 (1981). In a supplemental 

decision on April 10, 1981, the judge refined his initial analysis to 

reflect the Commission's discrimination tests in Pasula v. Consolidated 

Coal Co., 2 FMSHRC 2786 (1980), rev'd on evidentiary grounds, 663 F.2d 

1211 (3d Cir. 1981), and in Robinette v. United Castle Coal Co., 3 

FMSHRC 803 (1981), and awarded Bradley back pay. 3 FMSHRC 921 (1981). 

footnote±_/ cont'd. 

miner shall be automatically reinstated until the final determination. If such proceedings are not completed within forty-five 

days of the date of discharge due to delay caused by the board, 

then the board may, at its option, reinstate the miner until the 

final determination. If such proceedings are not completed within 

forty-five days of the date of discharge due to delay caused by the 

miner the board shall not reinstate the miner until the final 

determination. 

(c) Whenever an order is issued under this section, at the request 

of the applicant, a sum equal to the aggregate amount of all costs 

and expenses including the attorney's fees as determined by the 

board to have been reasonably incurred by the applicant for, or in 

connection with, the institution and prosecution of such proceedings, 

shall be assessed against the person connnitting such violation. 

3/ Bradley brought his discrimination complaint pursuant to section 

l05(c)(3) of the Mine Act because the Secretary had determined after 

investigation that a violation of section 105(c) had not occurred. 

985 
II. 

We analyze first ~he question of whether the West Virginia Board 

decision precludes lit~gation of Bradley's Mine Act discrimination claim 

or of issues arising under that claim. Preclusion is an affirmative 

defense, and the party asserting it must prove all the elements necessary 

to establish it. For the reasons explained below, we conclude that 

preclusion is inapplicable because Belva has not shown the necessary 

identity either of claims or of issues. 

As a general proposition, we recognize that preclusive effect as to 

either claims or issues may attach in appropriate cases to the decision 

of an administrative agency acting in a judicial capacity. See United 

States v. Utah Construction & Mining Co., 384 U.S. 394, 421-2-z--(1966). 

There are exceptions to the applicability of preclusion, as, for example, 

where "there is reason to doubt the quality, extensiveness, or fairness 

of procedures followed in prior litigation.n Montana v. United States, 

440 U.S. 147, 164 n. 11 (1979). Additionally, in cases of overlapping 

federal and state regulation, federal supremacy may, in effect, bar 

proceedings under a state law that conflicts with a federal statute. 

See, for example, Ray v. Atlantic Richfield Co., 435 U.S. 151, 157-58 

(1978). As relevant here, however, unless the party asserting a preclusion defense can satisfy the "technical" requirements for raising it, 

we need not resolve such questions as the quality or fairness of procedures followed in the state litigation or whether the state law conflicts with the Mine Act. !!._/ Belva has not made the necessary "technical" 

showing with regard to either type of preclusion. We turn initially to 

res judicata, or claim preclusion. 

Res Judicata 

We agree with the judge (Unpub. Order at 3) that since this case 

arises under a federal statute, the federal law of preclusion, rather 

than state law, must provide the criteria for analysis. See Maher v. 

City of New Orleans, 516 F.2d 1051, 1056 (5th Cir. 1975), ~· denied, 

426 U.S. 905 (1976). Under the federal doctrine of res judicata, a 

judgment by a court of competent jurisdiction on the merits in a prior 

4/ The Mine Act tloes not totally pre-empt state regulation of mine 

safety and health, but does "supersede" any conflicting state law. Thus, 

section 506(a) of the Mine Act provides: 

No State law in effect on the date of enactment of this Act or 

which may become effective thereafter shall be superseded by 

any provision of this Act or order issued or any mandatory 

health or safety standard, except insofar as such State law is 

in conflict with this Act or with any order issued or any 

mandatory health or safety standard. 

Without reaching the possible conflict issue, we note in passing that 

the provisions of West Virginia Code § 22-1-21 are not identical to the 

discrimination provisions of section 105(c) of the Mine Act (n. 6 below). 

We also note that Bradley argues that the West Virginia proceedings were 

unfair, a contention not necessary to resolve in view of our disposition 

of this case. 

986 
suit bars a second suit involving the same parties or their privies 

based on the same claim. Lawlor v. National Screen s~rvice Corp., 349 

U.S. 322, 326 (1955); Commissioner v. Sunnen, 333 U.S. 591, 597 (1948). 

Res judicata also forecloses litigation in a second action of grounds 

for, or defenses to, ~he first claim that were legally available to the 

parties, even if they,were not actually litigated in the first action. 

Brown v. 442 U.S. 127, 131 (1978). As indicated above, res 

judicata may be applied to the decisions of administrative agencies 

acting in a judicial capacity. In this case, the crucial res ..i..=..c.:...=...:...;..;_;:_.;;;_ 

question is whether nradley's state and federal claims action are 

identical; of course, if they are not, res judicata is inapplicable. 

See Newport News Shipbuilding & Dry Dock v. Director, 583 F.2d 1273, 

1278 (4th Cir. 1978), cert denied, 440 U.S. 915 (1979). 

The judge did not make an unequivocal finding on whether Bradleyvs 

state and federal claims are identical. He defined claim as the "operative 

facts out of which a grievance [arises]" (Unpub. Order at 2), and concluded that "the set of facts" in Bradleyis complaint "amount[s] to a 

cause of action" under both West Virginia law and the Mine Act. Id. at 

3. On the other hand, he also emphasized that "Bradley never had~n 

opportunity to have his § 105(c) [Mine Act] claim litigated expressly" 

before the West Virginia Board. Id. In any event, the judge ected 

Belva's preclusion defense largely on the statutory grounds that the 

Mine Act creates a wholly independent federal claim in discrimination 

cases. On appeal, Belva focuses on this latter aspect of the judge's 

decision; however, it must still demonstrate that it meets the technical 

requirements for asserting res judicata. In attempting to do that, 

Belva contends that Bradley's state and federal claims are the same. 

Petition for Discretionary Review at 9. 

We first define a claim. The term has been variously described in 

the res judicata context, and the judge's focus on a common nucleus of 

operative fact is a formulation that has received judicial approval. We 

are not inclined, however, to examine claims in a legal vacuum. A suit· 

is founded on a source of law protecting against a wrong, as well as on 

the events complained of. Dist~nct sources of law may create different 

rights, impose different duties, and interdict different wrongs, yet may 

all apply to the same set of facts. See, for example, Tipler v. E.I. 

duPont deNemours & Co., 443 F.2d 125, 126-130 (6th Cir. 197l)(an administrative decision resolving a complaint arising under the National Labor 

~_I While this decision was being prepared, the Supreme Court held in 

Kremer v. Chemical Constr. Corp.,~- U.S.~-' No. 80-6045, May 17, 

1982, that a federal district court handling a plaintiff's employment 

discrimination claim under Title VII of the Civil Rights Act of 1964 

must give preclusive effect to a prior state court decision upholding a 

state's administrative agency's rejection of the plaintiff's same state 

employment discrimination claim. The Court overturned a line of cases 

which had held that preclusion did not apply on the theory that Title 

VII provided for an independent and cumulative federal remedy regardless 

of state proceedings. Without engaging in detailed analysis, the Court 

concluded in Kremer that the plaintiff's state and federal claims, or at 

least the key issues common to both suits, were identical. The Court 

did not modify the settled requirement that there must be an identity of 

claims or issues in order for preclusion to apply. Our decision in the 

present case rests on the conclusion that Belva has failed to show the 

kind of identity of claims or issues which the Court found present in 

Kremer. 

987 
Relations Act does not necessarily preclude a suit arising under Title 

VII even though the same basic facts were involved in both actions). 

Therefore, we favor and adopt the approach to defining claim for res 

judicata purposes that looks not only to the operative facts, but also 

to "'the primary right and duty, and the delict or wrong ••• in each 

action.'" Maher v. C~ty of New Orleans, 516 F.2d at 1057, quoting 

Seaboard Coast Line R., Co. v. Gulf Oil Corp., 409 F. 2d 879, 881 (5th 

Cir. 1969). See also Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 321 

(1927). This test is well suited to employment discrimination cases, 

which typically involve a complex mix of fact and law. In short, when 

comparing a discrimination action brought under another statute to one 

arising under the Mine Act, we will examine both the facts and the 

substantive legal protection afforded the miner under both statutes. 

Applying the foregoing analysis, we conclude that the gravamen of 

Bradley's federal Mine Act claim is that he was discriminated against 

for engaging in a protected work refusal--namely, for refusing to obey 

an order that he reasonably believed would have created a safety hazard 

if obeyed, From all that appears on the record, the gravamen of his 

state claim is that he was discriminated against for making safety 

complaints. Furthermore, his federal claim necessarily includes the 

burdens of proof and discrimination analysis we announced in Pasula, 2 

FMSHRC at 2796-2800, and Robinette, 3 FMSHRC at 817-18 & n. 20. There 

is nothing in the record showing any corresponding elements under West 

Virginia law. While Bradley's two claims are similar, we cannot conclude 

on this record either that they are the same or that Bradley could have 

brought an action under West Virginia law that would have been identical 

to his federal claim. 

Turning to Bradley's federal claim, we have previously concluded 

that section 105(c)(l) of the Mine Act !i_I grants miners the general 

right to refuse work if the refusal is based on a good faith, reasonable 

belief that a hazardous condition exists. Pasula, 2 FMSHRC at 2789-94; 

Robinette, 3 FMSHRC at 807-17. Although section 105(c) does not expressly 

!ii Section 105(c)(l) provides: 

No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the 

statutory rights of any miner, representative of miners or 

applicant for employment in any coal or other mine subject to 

this Act because such miner, representative of miners or 

applicant for employment has filed or made a complaint under 

or related to this Act, including a complaint notifying the 

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

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

safety or health violation in a coal or other mine, or because 

such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential 

transfer under a standard published pursuant to section 101 or 

because such miner, representative of miner or applicant for 

employment has instituted or caused to be instituted any 

proceeding under or related to this Act or has testified or is 

about to testify in any such proceeding, or because of the 

exercise by such miner, representative of miners or applicant 

for employment on behalf of himself or others of any statutory 

right afforded by this Act. 

988 
provide for the right to refuse work, the legislative history unambiguously shows that Congress intended section 105 to embrace this right. 

See Fasula, 2 FMSHRC at 2791-93. The judge's decision--when read in 

light of our views on the meaning of a claim--makes clear that the 

essence of Bradley's ocederal claim is that he was fired for refusing the 

order to allow the scoop to run over the damaged trailing cable. 3 

FMSHRC at 922. The judge also analyzed Bradley's claim solely under the 

Fasula-Robinette tests for examining an alleged discriminatory action. 

Id. 

In contrast, section 22-l-2l(a) of the West Virginia Code (n. 2 

above), under which Bradley brought his state action, provides in 

relevant part that "No person shall discharge ..• any miner .•• by 

reason of the fact that he believes or knows that such miner ..• has 

notified ••• an operator, directly or indirectly, of any alleged violati<ms or danger •••• n It is not clear from the face of this provision 

whether the state law would treat Bradley 1 s refusal to obey an order as 

a protected "notification to an operator of a danger." Belva has not 

demonstrated in any event that West Virginia law confers a general right 

to refuse work. (Belva has presented us with no other substantive provisions of the state law.) Other than the West Virginia decision in 

issue, Belva has presented no West Virginia Board decisions (which, from 

all that appears, are not officially published) nor any other court 

decision interpreting the West Virginia act. Nor has Belva presented 

any legislative history to explain the meaning of section 22-l-2l(a). 

Similarly, Belva has not shown that West Virginia law affords a miner in 

a discrimination case the burden of proof structure and analytical 

framework used to resolve a Mine Act discrimination case. 

Nor does the State Board decision in Bradley's case shed any light 

on the foregoing matters. The decision is extremely brief and conclusory. The decision contains no findings of fact, credibility resolutions, or explanations for the conclusions reached. No mention is mad~ 

that the matter of a right to refuse work was litigated or considered by 

the Board, or that such a right in general exists under state law. ]_/ 

The decision is also silent on the burdens of proof and discrimination 

analysis employed to reach the result obtained. 

JJ At.the West Virginia state hearing, Bradley's counsel seem to have 

argued that Bradley was fired because of prior safety complaints or 

because he was being held responsible for the mine section being shut 

down by the MSHA inspector. Transcript of West Virginia hearing, at 83, 

87. We note in passing that the transcript of the state proceeding is 

frequently garbled and does not provide significant assistance in 

determining the basis of Bradley's state claim. 

989 
While we agree with the judge that the facts involved in Bradley's 

two actions are substantially the same, we cannot find on this record 

that the two claims are identical. Of course, we are not attempting to 

essay any kind of a conclusive construction on the meaning of West 

Virginia law. We have addressed only the facial, apparent meaning of 

section 22-l-2l(a), and we have a record virtually devoid of proof on 

identity of claims. Our holding therefore means only that Belva has 

failed to show that Bradley's state "safety complaint" claim involved, 

or could have involved, the same kind of work refusal claim litigated 

before us. Cf. Tipler v. E.I. duPont deNemours & Co., 443 F.2d at 126-

130. §_/ We would, of course, take steps to prevent any duplicating 

recoveries under state law and this Act, and, as we hold below, we will 

also allow the decisions of state tribunals to be admitted into evidence 

in our proceedings. This latter device may supply in appropriate cases 

approximately the same relief the preclusion doctrines are designed to 

afford. 

Collateral Estoppel 

Our conclusion on res judicata does not dictate a particular 

to collateral estoppel, or issue preclusion. 

the doctrine of collateral estoppel applies where 

the second suit is based upon a different claim. Under collateral 

estoppel, the judgment in the earlier suit precludes re-litigation of 

issues actually litigated and necessary to the outcome of the earlier 

suit. for example, Parklane Hosiery Co. v. Shore, 439 U.S. 322, 

326 & n. (1979). We need not decide whether collateral estoppel 

applies to our proceedings because Belva has not satisfied the requirements for raising this defense. 

Indeed, Belva has not advanced any separate collateral estoppel 

arguments, but instead has vaguely lumped this doctrine with its discussion of res judicata. The basic premise for applying collateral 

estoppel is a showing that the precise issues involved in the second 

action were actually and necessarily decided in the first. Belva has not 

made this showing. The West.Virginia Board decision is so brief and 

conclusory that we can not use it as a basis for collateral estoppel. 

In the third section of this-dec.ision, we discuss the issues relevant to 

this federal action, and nothing-in- this very limited record persuades 

us that they were considered or decided in the West Virginia proceeding. 

At oral argument before us, reference was made to section 22-2-

(g) of the West Virginia Act, which provides for a limited right to 

refuse work under unsupported roof, and we agree with the position taken 

by Belva's counsel that that section appears to have no relevance to the 

facts of this case. 

990 
In addition to its preclusion arguments, Belva also raises a comity 

argument, which appears to be based on the Supreme Court's discussion of 

"Our Federalism" in Younger v. Harris, 401 U.S. 37 (1971). The analogy 

to Younger is strained. In that case, the only issue was the proper 

policy to be followe~ by a federal court when requested to enjoin on 

constitutional grounds a criminal prosecution pending in a state court. 

Even if this comity notion possessed some analogous appeal, which we do 

not decide, it should not apply where, as here, a miner is pursuing 

different claims. 

We conclude our preclusion discussion by addressing the judge's 

admission into evidence of the state decision, a procedural action to 

which Belva does not object. Allowing the introduction of such decisions may satisfy many of the goals that the preclusion and comity 

doctrines were created to serve: lessening the burdens of multiple 

litigation, fostering harmonious federal-state development of similar 

bodies of law, and avoiding unnecessary relitigation of points already 

thoroughly tried and analyzed by a competent body. We approve the 

introduction of such decisions into evidence, but also agree with the 

judge that no weight should have been accorded to this particular 

decision. 3 FMSHRC at 921. As we have already indicated, the state 

opinion is on its face devoid of any meaningful We therefore 

concur with the judge that "[w]ithout knowing how the Board evaluated 

the testimony or applied the law, ••• any deference to its opinion would 

be unjustifiable." Id. 

We now turn to the discrimination issues. 

III. 

We first analyze whether Bradley established a prima facie case 

under our Pasula/Robinette tests, and then examine the question of 

whether Belva nevertheless suces~fully defended against it. 

The standards by which we analyze a section 105 prima facie case 

were set out in Pasula and Robinette. In Pasula, we developed a twopart test: 

.•• the complainant has established a prima facie case of a 

violation of section 105(c)(l) if a preponderance of the 

evidence proves (1) that he engaged in a protected activity, 

and (2) that the adverse action was motivated in any by 

the protected activity. On these issues, the complainant must 

bear the ultimate burden of persuasion. 

Pasula, 2 FMSHRC at 2799. As we have already indicated, these two 

decisions also recognize a right to refuse work so long as the refusal 

is predicated on a good faith, reasonable belief in a hazardous condition. 

991 
The judge appropriately applied the Robinette test to Bradley's 

refusal to let the scoop run over the cable (see discussion of facts 

above). Although Belva disagrees with the specific manner in which the 

Robinette test was ap~lied to the facts in this case, it does not argue 

that the wrong test was applied. Belva contends that Bradley did not 

have a reasonable belief that the cable was hazardous. Belva relies on 

"objective" evidence and points to testimony that the cable was severed 

and de-energized. 

In Robinette, however, we adopted a test less rigid than "objective 

proof": 

Miners should be able to respond quickly to reasonably perceived threats, and mining conditions may not permit painstaking 

validation of what appears to be a danger. For all these reasons~ 

a "reasonable beliefrt rule is preferable to an "objective proof 11 

approach under the Act, 

Robinette, 3 FMSHRC at 812. Here, the judge had before him ample evidence 

that Bradley may have had a reasonable fear of shock or electrocution. 

The miners in Bradley's crew testified that they did not know the cable 

had been de-energized--the cable was still hooked up to the continuous 

miner, it had not been locked out, and the opposite end of the cable was 

located three breaks away. Tr. 89. Moreover, Bradley testified that 

only a week before the argument he had been badly shocked by a cable 

under similar conditions. Tr. 235. Belva also points to testimony that 

electricians had already cut the cable for splicing. Tr. 221-22. However, this testimony does not make clear whether the cutting occurred 

before or after the scoop incident, and there is no evidence Bradley knew 

or was told of the cutting when he refused to let the scoop run over the 

damaged cable. Under these circumstances, we affirm the judge's conclusion that Bradley's refusal to allow the scoop to drive over the 

cable was a protected refusal to perform work that the miner reasonably 

regarded as dangerous. The next question is whether Bradley's discharge 

was motivated "in any part" by this protected work refusal. 

The judge inferred improper motivation largely because of the 

operator's knowledge of Bradley's protected activity and the timing of 

the protected activity and the sanction. In Chacon v. Phelps Dodge 

Corp., 3 FMSHRC 2508 (1981), ~· rev. filed, No. 81-2300, D.C. 

Cir., December 11, 1981, the majority and the dissent agreed that 

circumstantial evidence of this type and reasonable inferences drawn 

therefrom may be used to sustain a prima facie case of discrimination. 

3 FMSHRC at 2510-12. 

It is undisputed that Bradley had made a number of safety complaints to the operator, and had made some to his supervisor, Mine 

Foreman Davis. Davis was the supervisor who fired Bradley and whose 

order Bradley refused to obey. Thus, Davis was well aware of Bradley's 

protected activity in general and his work refusal in particular. With 

respect to coincidental timing, the judge found that "[s]ince the 

discharge followed so closely on [Bradley's] refusal to allow the scoop 

to run over the cable, such refusal unquestionably figured in the decision 

to discharge." 3 FMSHRC at 922. We agree. 

992 
The evidence of knowledge and timing present in this case constitutes substantial evidence that Bradley's discharge was at least 

partially motivated b~ his protected refusal to work. The more difficult issue is whether .. Belva successfully defended against Bradley's 

prima facie case. In Pasula, we spelled out the availability of defense 

to a successfully established prima facie case: 

The employer may affirmatively defend, however, by proving by 

a preponderance of all the evidence that, although part of his 

motive was unlawful, (1) he was also motivated by the minervs 

unprotected activities, and (2) that he would have taken 

adverse action against the miner in any event for the unprotected activities alone ..•. It is not sufficient for the 

employer to show that the miner deserved to have been fired 

for engaging in the unprotected activity; if the unprotected 

conduct did not originally concern the employer enough to have 

resulted in the same adverse action 9 we will not consider it. 

The employer must show that he did in fact consider the 

employee deserving of discipline for engaging in the unprotected activity alone and that he have disciplined him 

in any event. 

2 FMSHRC at 2799-800. (Emphasis in orig-inaL) 

Belva's final defense is that, even assuming a prima facie case was 

established, Bradley was also fired for his insubordinate refusal to get 

a tape measure (see discussion of facts above) and that he would have 

been fired anyway for that act alone. 

Since it was the refusal to get the tape measure that immediately 

preceded Davis' decision to fire, we agree with the judge's apparent 

finding that this act also figured into the discharge. 3 FMSHRC at 922'. 

Thus, this is a "mixed motivation" discrimination case and the ultimate 

issue is whether Belva would have fired Bradley for the tape incident 

alone. The judge found that Belva would not have discharged him over 

that matter and, while Belva poses some reasonable arguments, the judge's 

rejection of them is supported by substantial evidence. We do not, 

however, approve of some of his reasoning. 

As we emphasized in Fasula, and recently re-emphasized in Chacon, 

the operator must prove that it would have disciplined the miner anyway 

for the unprotected activity alone. Ordinarily, an operator can attempt 

to demonstrate this by showing, for example, past discipline consistent 

with that meted out to the alleged discriminatee, the miner's unsatisfactory past work record, prior warnings to the miner, or personnel 

rules or practices forbidding the conduct in question. Our function is 

not to pass on the wisdom or fairness of such asserted business justifications, but rather only to determine whether they are credible and, 

if so, whether they would have motivated the particular operator as 

claimed. 

993 
Here, Belva points only to Davis' testimony that the tape line 

argument was the "only reason" for Bradley's discharge. Tr. 173-4. 

Belva did not attempt to show that Bradley was an unsatisfactory miner 

or had engaged in insubordinate acts previously. Neither did Belva 

attempt to show that !it had rules or practices dealing with this kind of 

problem, or had previously fired anyone for similar incidents. We also 

note that Davis' testimony appears somewhat less than forthright. He did 

not initially mention the cable incident, and conceded that he had 

argued with Bradley over that point only upon questioning -Oy the judge. 

Tr. 189. 

Under the foregoing circumstances, we agree with the judge that 

Belva's defense is not persuasive. Since the incidents involving the 

cable and tape line happened virtually on top of one another, the 

judge's inference that Bradley would not have been discharged over the 

tape measure dispute alone is supportable. At the same time, we are 

troubled by some of the language used by the judge. He suggests, for 

example, that discharge over such an incident would be a "totally 

disproportionate sanction." 3 FMSHRC at 922. Such personal views are 

irrelevant; the proper point is that Belva failed to show that it would 

have fired him over that incident alone. In a different case, an 

operator might be able to show that such an incident alone supported 

termination and a judge's and our views on the wisdom or justice of such 

an action would be beside the point, 

In sum, we affirm the judge's discrimination findings on the bases 

discussed above. 

IV. 

In his supplemental decision, the judge awarded Bradley $22,249.76 

in back pay with interest, as well as costs and attorney's fees. 3 

FMSHRC at 923. 2J Because it appears that the judge erred in computing 

the back pay due, we remand this aspect of the judge's decision for 

expeditious recomputation of back pay. 

In Northern Coal Co., 4 FMSHRC 126, 144 (1982), we followed precedent 

established under the National Labor Relations Act and defined back pay 

as the sum equal to the gross pay the miner would have earned but for 

the discrimination, less his "actual net interim earnings." "Net interim 

earnings" is an accepted term of art which does not refer to net earnings 

in the usual sense (gross pay minus various withholdings). Rather, the 

term describes the employee's gross interim earnings less those expenses, 

if any, incurred in seeking and hO'lding the interim employment-expenses 

that the employee would not have incurred had he not suffered the 

discrimination. 10/ To remove any possible confusion, we will henceforth 

2/ While this case was pending before us, Belva agreed to pay the sums 

owed into an escrow account. 

10/ Under the National Labor Relations Act, such deductible expenses 

include transportation costs incurred in finding and maintaining interim 

employment; employment agency fees; room and board where the employee 

works away from home; moving expenses, etc. 

994 
refer to the term as "actual interim earnings." See OCAW v. NLRB, 547 

F.2d 598, 602 (D.C. Cir. 1976), denied, 429 U.S. 1078 (1977). 

The judge subtracted Bradley's net earnings (that is, take home 

pay) from the gross pay he would have earned from Belva. We remand so 

that the judge can deduct the actual interim earnings as described 

above. We note that in. the proceedings before the judge, Bradley 

asserted he had not actually received a portion of the sum owed him by 

one interim employer. The judge should ascertain on remand whether any 

more of this sum has· been recovered by Bradley since the judge's initial 

decision. The j may take such additional evidence and·argument as 

necessary. 

For the reasons, we remand for expeditious recalculation 

of back pay, and affirm the rest of the judge 1 s decision on the bases 

discussed above. 

judge's handling of Belva's allegations of 

unemployment compensation "fraud" by Bradley. Whatever the truth may be 

regarding these allegations, the matter is before the state, not the 

Commission. 

995 
Distribution 

Daniel F. Hedges, Esq. 

Appalachian Research & Defens~ Fund, Inc. 

1116-B Kanawha Bl*d., East 

Charleston, West Virginia 25301 

Ricklin Brown, Esq. 

Bowles, McDavid, Graff & Love 

1200 Commerce Square 

P.O. Box 1386 

Charleston, West Virginia 25325 

Linda Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge James A. Broderick 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

996 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 21, 1982 

Docket No. SE 81-25-M 

PUERTO RICAN CEMENT COMPANY, INC. 

DECISION 

This penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (Supp. III 1979), 

and involves the interpretation of 30 c."'F":'"R-:--§ 56.4-27. That 

regulation states: 

Mandatory. Whenever self-propelled mobile equipment is 

used, such equipment shall be provided with a suitable 

fire extinguisher readily accessible to the equipment 

operator. 

For the reasons that follow, we affirm the judge's conclusion that 

Puerto Rican Cement Company violated this standard. 

The relevant facts were stipulated by the parties. The company 

was cited for failing to have a fire extinguisher attached to a 

forklift at its Ponce cement plant. The forklift was consistently 

used in the same manner. At the beginning of the shift it was taken 

from its storage location in.the machine shop building and was driven 

about 780 feet to the cement warehouse, where it was operated for the 

remainder of the shift. At the end of the shift, it was driven back 

along the same route to the machine.shop building. Inside the 

warehouse, four fire extinguishers were located at intervals of 

approximately 100 feet. Outside the warehouse and along the 780 foot 

route traveled by the forklift, six fire extinguishers were attached 

to the outside of buildings at intervals of approximately 130 feet. 

Despite the presence of the extinguishers in the building where the 

forklift was used and along the route it' traveled, the judge upheld 

the citation. He construed the standard to require a fire extinguisher 

to be affixed to the mobile equipment itself when the equipment is in 

use. We agree. 

997 82-6-10 
In concluding that the judge properly interpreted the standard, 

we have looked at the words of the standard, reviewed its purpose, 

and finally we have noted the practical problems inherent in the 

interpretations advocated by the parties. 

We first consider the language and syntax of the standard. The 

words of a standard when not technical in nature are to be given their 

commonly understood meaning. 1/ The standard requires that mobile 

equipment "shall be provided with a suitable fire extinguisher." The 

generally understood relevant meaning of "provided" is to be furnished 

or equipped with. 2/ In the standard, the term "mobile equipmentu 

takes the action of the verb "provided." Thus, the plain meaning of 

the regulation is that the machinery itself be equipped with an 

extinguisher. 2./ 

Furthermore, it seems self evident that requiring extinguishers 

to be affixed to self-propelled mobile equipment will augment the 

safety of the equipment operator. In the event of a fire, the time 

required to activate an extinguisher attached to the equipment would 

be significantly less than if the extinguisher were located elsewhere. 

Inordinate delay could result in determining which extinguisher location 

were nearest to the equipment and securing the extinguisher. Moreover, 

extinguishers might not readily or otherwise be accessible if the 

mobile equipment left the area where the extinguishers were located. 

For the foregoing reasons, we aff"nn the judge. 

lf See 2A Sutherland, Statutes and Statutory Construction § 47.28 

at 141 (4th ed. 1973). Sutherland further notes that "dictionary 

definitions ••• report common usage •••• " Id. § 46.02 at 52. 

!} Webster's Third New International Dictionary (1971) p. 1827. 

3/ The company 1s argument that an extinguisher need not be attached 

to the forklift so long as there are fire extinguishers readily accessible 

to the equipment operator is obviously at odds with the syntax of the 

standard. 

S98 
Distribution 

Enrique Bray, Esq. 

Lafitte & Dominguez 

P.O. Box 1732 

Hato Rey, Puerto Rico 00919 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Chief Administrative Law Judge Paul Merlin 

Fed. Mine Safety & Health Rev. Commission 

1730 K Street, N.W. 

Washington, D.C. 20006 

999 
FEDERAL MINE S~FETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CENTRAL OHIO COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 2:1, 1982 

Docket No. LAKE 81-78 

DECISION 

This case arises under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et (Supp. III 1979). Pursuant to 30 U.S.C. 

§ 823(d)(2)(B) the Commission sua sponte directed review of the following 

issue: 

Did the judge err in approving this settlement agreement 

containing an exculpatory clause stating "nothing contained 

herein shall be deemed an admission by Respondent of a 

violation of the Federal Mine Safety and Health [Act] of 

1977 or any regulation or standard issued thereto." 

In our recent decision in Amax Lead Company of Missouri, 4 FMSHRC ~­

(Docket No. CENT 81-63-M, June 1, 1982), we held that "parties are free 

to admit or deny the fact of violation in settlement agreements." Slip 

op. at 3. This holding controls the present case. We emphasize that, 

in light of the voluntary nature of the settlement process, settlements 

cannot be conditioned upon an admission of violation. 

Accordingly, the decision of the administrative law judge approving 

the settlement at issue is affirmed. 

A. E. Lawson, Commissioner, dissenting: 

1000 82-6-11 
Com.missioner Lawson, dissenting: 

As stated in my dissent in Amax Lead Company of Missouri, supra, 

one cannot deny the existence of a violation and at the same time agree 

to the payment of a civil penalty therefor, since all penalties must be 

predicated upon the existence of a violation. Section llO(a); Co-op 

Mining Company, 2 FMSHRC 3475 (1980). Accordingly, I would reverse the 

decision of the administrative law judge approving the settlement in 

this matter. 

A. E. Lawson, Commissioner 

1001 
Distribution 

Debra L. Feuer, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

David M. Cohen, Esq. 

American Electric Power Service Corporation 

P.O. Box 700 

Lancaster, Ohio 43130 

1002 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

COWIN AND COMPANY, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DECISION 

Contest of Citation 

Docket No. CENT 81-250-RM 

Citation No. 173604; 6/8/81 

Shafter Mine 

Appearances: W. S. Pritchard, Jr., Attorney, Birmingham, Alabama for 

the contestant; George D. Palmer, Associate Regional Solicitor, 

U.S. Department of Labor, Birmingham, Alabama, for the 

respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a contest filed by the contestant Cowin 

and Company (hereinafter Cowin) contesting the legality and propriety 

of a citation issued by an MSHA Inspector pursuant to section 104(d)(l) 

of the Federal Mine Safety and Health Act of 1977, of June 8, 1981. At 

the time the citation was issued, Cowin was an independent contractor 

doing mine development work for Gold Fields (a corporation) ·at the 

Shafter Silver Mine located near Shafter, Persidio County, Texas. The 

work being performed by Cowin was a mucking operation at the bottom of 

a drilled shaft that was drilled to a seven foot diameter and to a 

depth of approximately 938 feet below the surface. The citation cites 

an alleged violation of mandatory safety standard 30 CFR 57.19-71, and 

it was alleged that during the mucking operation employees of Cowin were 

required to stand in a bucket of loose, slippery, muddy "muck" while 

being hauled approximately seventy feet up the shaft in question. 

This case was originally assigned to former Commission Judge Forrest E. 

Stewart, and upon his subsequent transfer from employment with the 

Commission, the case was reassigned to me for further adjudication. 

It should be noted that subsequent to the docketing of this contest with 

the Commission, both Cowin and MSHA filed a number of motions, responses, 

and further pleadings dealing with certain procedural matters concerning 

1004 
the timely filing of the contest, and a subsequent civil penalty assessment 

:for the violation. Included in these filings are motions to dismiss, 

amended motions, and responses filed by the parties. A summary of these 

procedural motions, including my rulings, are set out in .a three page 

order issued by me on January 28, 1982. The Order is a matter of 

record and its contents need not be repeated herein. 

The parties were served with a notice of hearing issued by me on 

February 26, 1982, advising them that a hearing would be conducted 

on the contest on May 5, 1982, in Birmingham, Alabama,.the hearing 

location requested by the contestant. A subsequent amended notice of 

hearing which I issued on April 13, 1982, advised the of the 

specific hearing location in Birmingham for the scheduled hearing. 

At the hearing, the parties tendered a motion for approval of a 

proposed settlement agreement for the citation in question. The proposal 

includes an agreement by the contestant for a payment of a $210 civil 

penalty for the citation, a reduction of $90 from the initial assessment 

of $300. The proposed reduction was based on the assertion that the 

gravity of the conditions cited was substantially less than initially 

assigned in the initial assessment mad~ by MSHA 1 s Office of Assessments. 

The section 104(d)(l) citation issued in this case, No. 173604, 

cites a violation of mandatory safety standard 30·CFR 57.19-71, and the 

conditions or practices cited by the inspector states as follows: 

Employees were required to stand on loose muddy muck and 

ride the muck bucket approximately 70 ft. to a landing. 

The muck being muddy caused the footing to be unstable. 

This company had previously been cited for men riding 

in the muck bucket with materials and the supervision 

was told along with employees that they were not to 

ride the buckets with materials or muck. Safety belts 

were used by the employees; attached to the rope hook. 

The proposed settlement motion was rejected and denied. The parties 

were reminded of my previous rulings in this matter, and in particular 

the notice of hearing issued on February 26, 1982, stating that the 

issues to be tried in this contest were the fact of violation, whether 

it was "unwarrantable", and whether the conditions cited constituted a 

"significant and substantial" violation of the cited mandatory safety 

standard. ' 

The parties were also reminded of my previous ruling of January 28, 1982, 

that since no civil penalty proceeding was filed by the Secretary in 

this matter, the normal civil penalty matters set out in section llO(i) 

of the Act are not in issue in these proceedings. Further, since the 

Secretary filed no proposal for assessment of a civil penalty in this 

1005 
case, it seems clear to me that I have no jurisdiction to consider the 

proposed settlement proposal tendered by the parties with respect to 

MSHA's initial penalty assessment. Accordingly, the proposed settlement 

for the penalty assessment, which apparently has never been contested 

by Cowin and for which no penalty proposal has been filed with the 

Commission, was rejected and denied. In view of my 'ruling in this regard, 

Contestant Cowin renewed its motion to withdraw its contest in this case 

and it was granted from the bench. 

ORDER 

Contestant 1 s motion to withdraw its notice of contest filed in this 

case is GRANTED, and this case is DISMISSED. 

_./'~A. @~a~~~ Koutras 

Administrative Law Judge 

Distribution: 

George D. Palmer, Associate Regional Solicitor, U.S. Department of Labor, 

Office of the Solicitor, 1929 South Ninth Ave., Birmingham, AL 35256 

(Certified Mail) 

W. S. Pritchard, Jr., Esq., Pritchard, McCall, Jones, Spencer & O'Kelly, 

901 Brown-Marx Bldg., 2000 First Avenue North, Birmingham, AL 35203 

(Certified Mail) 

1006 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

Docket No. SE.82-12 

A.O. No. 01-00758-03104 V 

Mine No. 3 

Docket No. SE 82-13 

A.O. No. 01-01247-03081 V 

Mine No. 4 

DECISIONS 

Appearances: George D. Palmer, Associate Regional Solicitor, U.S. 

Department of Labor, Birmingham, Alabama, for the 

petitioner; Robert W. Pollard, Attorney, Birmingham, 

Alabama, and Gerald Reynolds, Attorney, Tampa, Florida, 

for the respondent. 

Before: Judge Koutras 

Statement of the Case 

These proceedings concern proposals for assessment of civil penalties 

filed by the petitioner against the respondent on November 27, 1981, 

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

1977, 30 U.S.C. 820(a), proposing civil penalty assessments.for two 

alleged violations of mandatory safety standards 30 CFR 75.316 and 75.1704. 

Respondent filed timely answers to the petitioner's proposals, 

denied that the alleged violations occurred, interposed several legal 

and factual defenses, and requested a hearing. Subsequently, by notice of 

hearing issued by me on February 26, 1982, the parties were advised that 

both cases would be heard in Birmingham, Alabama, on May 4, 1982. By 

an amended notice issued on April 13, 1982, the parties were informed 

of the specific hearing location in Birmingham. 

Although all of the notices of hearings issued in these proceedings 

directed the parties to inform me of any proposed settlements arrived 

at by the parties in writing no later then ten calendar days in advance 

of the commencement of the hearings, petitioner's counsel, the Associate 

Regional Solicitor, telephoned my office on Friday, April 29, 1982, 

to advise me that the parties had reached a settlement in both dockets. 

1007 
I directed both parties by telephone calls placed on the afternoon of 

April 29, 1982, to appear at the hearings as previously noted. I further 

advised them that since the initial notices of hearings were served 

on the parties more than sixty (60) days in advance of the scheduled 

hearing date, petitioner's "last-minute" telephone call was totally 

unacceptable, untimely, and contrary to the specific prehearing notice 

requirement that settlement proposals he communicated to me in writing 

no more than 10 days in advance of the scheduled hearings. 

Issues 

The principal issues presented in this proceeding are (1) whether 

respondent has violated the provisions of the Act and implementing 

regulation as alleged in the proposal for assessment of a civil penalty 

filed in this proceeding, and, if so, (2) the appropriate civil penalty 

that should be assessed against the respondent for the alleged violation 

based upon the criteria set forth in section llO(i) of the Act. 

Additional issues raised by the parties are identified and disposed of 

in the course of this decision. 

In determining the amount of a civil penalty assessment, section 

llO(i) of the Act requires consideration of the following criteria: 

(1) the operator's history of previous violations, (2) the appropriateness 

of such penalty to the size of the business of the operator, (3) whether 

the operator was negligent, (4) the effect on the operator's ability to 

continue in business, (5) the gravity of the violation, and (6) the 

demonstrated good faith of the operator in attempting to achieve rapid 

compliance after notification of the violation. 

Applicable Statutory and.Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164, 

30 u.s.c. § 801 et~ 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 20 CFR 27001.l et ~ 

Discussion 

Docket No. SE 82-12 

The hearing in this case was convened pursuant to notice and the 

parties appeared. Petitioner's counsel presented a motion for approval 

of a proposed settlement for the citation in question. In addition 

to the matters presented in the written motion, the parties were afforded 

a full opportunity to present oral arguments in support of the proposed 

settlement disposition of the case. In addition, statements were presented 

by MSHA Inspector L. G. Ingram who issued citation, as well as by the 

representative of miners (Bobby Johnson) who acted as the union walkaround 

representative at the time of the issuance of the citation. 

1008 
The 104(d)(l) Citation No. 0756313, June 19, 1981, cites 30 CFR 

75.316, and states as follows: 

The ventilation plan was not being followed in 

2 entry on section 10 in that the roof bolting 

was being performed with out the temporary wing 

curtain for blowing was not installed and the 

curtain line was approximately 17 feet from the 

deepest penetration. Wing curtain is required 

when bolting. 

Fact of violation 

The respondent does not dispute the fact that the conditions or 

practices cited by the constituted a violation of cited mandatory 

safety standard 30 CFR 75.316. The failure to insure the installation 

of the missing temporary wing ventilation curtain was a violation of 

the operator's approved ventilation plan, and the respondent conceded 

that this was in fact the case. The citation is AFFIRMED. 

Good faith compliance 

The record reflects that the cited condition was immediately 

abated within minutes after the missing wing curtain was installed, and 

the inspector confirmed this fact. 

Size of business and effect of civil penalty on respondent's ability 

to remain in business. 

The parties were in agreement that the No. 3 mine employed ~pproximately 

679 miners at the time the citation issued, and that the mine's annual 

coal production was approximately 500,000 to 800,000 tons. Respondent 

does not contend that the penalty assessed in this case will adversely 

affect its ability to remain in business. 

History of prior of violations 

Petitioner asserted that the respondent has a moderate history of 

prior assessed violations, but failed to produce a computer print-out 

detailing this history. However, the inspector stated that while he 

had cited previous ventilation violations at the mine, he could not recall 

any prior citations for failure to install temporary ventilation wing 

curtains. 

The information presented during the hearing reflects that the 

No. 3 mine is a gassy mine and that methane is ever-present and liberally 

emitted. In addition, the inspector indicated that methane ignitions 

1009 
had occurred in the mine, particularly during the mining cycle. In 

this case, the citation issued during the roof bolting operation, and 

the parties agreed that methane ignitions during roof bolting were very 

rare. 

Although the inspector did not know how long the missing curtain 

condition existed, he agreed that he observed the condition at the 

beginning of the shift and that it was not likely that it existed for 

any long duration. Since the missing curtain affected the ventilation 

system, the inspector believed that the condition cited was serious, 

and the parties agreed that this was the case. 

Negligence 

In itts motion in support of a reduction of the proposed civil 

penalty assessment of $2,750, petitioner stated that the initial 

assessment made by MSHA 1 s Office of Assessments was $750, and the rationale 

for this assessment amount is detailed in the "Narrative Findings for a 

Special Assessment", which is a part ~f the record in this case. Subsequently, when the respondent requested a conference, MSHA's assessment 

representative at that conference increased the penalty assessment to 

$2,750 and he did so on the basis of information that two higher level 

mine management personnel were at the location of the missing ventilation 

curtain and had been there for several minutes before the mine foreman 

and inspector arrived on the scena 'Ihe conference officer obviously 

concluded that the condition cited was known by top-level management for 

an extended period of time, and their failure to correct the condition 

before the inspector arrived at the scene resulted in a drastic increase 

in the original assessment. 

Petitioner asserted that the mine foreman arrived at the scene 

a minute or so in advance of the inspector but that the other top-level 

management personnel were directing their attention to an operating 

problem and were not aware of the wing curtain violation. Thus, 

petitioner maintained that the possible actual knowledge of the missing 

wing curtain by respondent's management was not present for more than 

about a minute before the inspector arrived and required correction. 

Respondent's counsel agreed with the arguments advanced by the petitioner 

with regard to the circumstances noted and insisted that such management 

knowledge, if any, was at most momentary and was not sufficient for the 

foreman to react before the inspector arrived on the scene. Given the 

full facts and circumstances now known to the parties, respondent maintained 

the increased assessment was totally arbitrary. 

In view of the foregoing arguments, the parties proposed a civil 

penalty assessment in the amount of $350 as an agreed upon settlement 

disposition for the citation. 

1010 
Conclusion 

After careful consideration of the arguments and information presented by the parties in support of their proposed settlement disposition 

of this matter, and particularly with regard to the question of negligence, 

I agree that a reduction in the increased assessment is justified. 

However, in view of the seriousness of the citation, the proposed penalty 

of $350 is rejected. Further, taking into account the almost instant 

abatement of the condition, the parties were advised that I would approve 

a civil penalty assessment of $500 for the citation, and they agreed. 

Accordingly, pursuant to Commission Rule 30, 29 CFR 2700.30, I conclude 

and find a settlement in the amount of $500 is reasonable and in the 

public interest, and the motion is GRANTED, and the settlement is APPROVED. 

ORDER 

Respondent IS ORDERED to pay a civil penalty assessment in the amount 

of $500 is staisfaction of Citation No. 0756313, June 19, 1981, 30 CFR 

75.316, within thirty (30) days of the date of this decision and order, 

and upon receipt of payment by the petitioner, this matter is DISMISSED. 

Docket No. SE 82-13 

The 104(d)(l) Citation No. 0752151, July 28, 1981, cites 30 CFR 

75.1704, and states as follows: 

The operator did not maintain the designated 10-men 

service cage in the prod. shaft properly -- in that 

such device (Nord Berg Hoist/Lakeshore Designed) would 

not run. Further, the approved back-up North coal 

skip did not have the embark-debark means available 

for persons. The main service hoisting facility (Nordberg/Lakeshore cage) was unavailable as material 

(flat car on trip) had cage tied up. 

In this case the parties proposed a settlement in the amount of 

$295 for the citation in question. The initial "special assessment" made 

in this case was in the amount of $2,000. The assessment was further 

reduced to $1250 at the assessment conference stage; and this is the 

amount which was proposed by the.petitioner at the time that it filed its 

civil penalty proposal on November 27, 1981. 

In support of the proposed settlement reduction for the citation 

in question the petitioner asserted that the facts as now known to him 

justifies a reduction. Counsel stated that the citation was issued after 

the inspector found that the 10-man service case located in the production 

shaft would not operate on a manual mode, but could be used automatically. 

Since this equipment was a designated main escapeway, the inspector was 

not concerned that it was not totally operable, but that two additional 

hoists designated as back-ups could not be used. 

1011 
In preparation for the hearing, petitioner's counsei asser~ed that 

additional facts were brought to his attention concerning the two back-up 

escape hoists. The service hoist had a piece of equipment stored on it 

which could have been easily removed to facilitate the transportation 

of men in an emergency. The second hoist referred to by the inspector 

in his citation could have been used since a portable walk board for 

use by the men to enter the hoist was located some distance from this 

hoist. Thus, petitioner argues that the original assessment was made 

on the assumption that the two additional hoists were totally unserviceable 

for use in an emergency, which was in fact not the case. 

In addition to the foregoing arguments, petitioner's counsel stated 

that he has consulted with the assessment officer who "specially assessed" 

the citation in question and that he was now in agreement that the regular 

civil penalty process is appropriate in this case. As a matter of fact, 

counsel asserted that the agreed upon proposed settlement amount of $295 

was computed by the same MSHA assessment officer after all of the facts 

were disclosed and brought to his attention. Counsel also brought to 

my attention that he discussed the pr.oposed settlement with the inspector 

who issued the citation, and that the inspector was unavailable for the 

hearing because he was on sick leave and has filed for disability retirement. 

Petitioner's motion also includes information concerning the other 

statutory criteria found in section llO(i) of the Act. Coupled with the 

facts and circumstances surrounding the issuance df the citation, the 

subsequent assessments, and the arguments presented in support of the 

proposed settlement, I conclude and find that the settlement proposal 

is reasonable and in the public interest. Accordingly, pursuant to 

29 CFR 2700.30, the motion to approve settlement is GRANTED, and the 

settlement is APPROVED. 

ORDER 

Respondent IS ORDERED to pay a civil penalty assessment in the amount 

of $295 in satisfaction of Citation No. 0752151, July 28, 1981, 30 

CFR 75.1704, within thirty (30) days of the date of this decision and 

order, and upon receipt of payment by the petitioner, this matter is 

DISMISSED. 

~'!r(~ Administrative Law Judge 

Distribution: 

George D. Palmer, Esq., U.S. Department of Labor, Office of the Solicitor, 

1929 South Ninth Ave., Birmingham, AL 35256 (Certified Mail) 

Robert W. Pollard, Esq., Jim Walter Resources, Inc., Box C-79, Birmingham, 

AL 35283 (Certified Mail) 

1012 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF JOHN COOLEY, 

Complainant 

v. 

OTTAWA SILICA COMPANY, 

Respondent 

Complaint of Discrimination 

and Discharge 

Docket No. LAKE 81-163-DM 

Michigan Division Quarry 

DECISION 

Appearances: David F. Wightman, Attorney, U.S. Department of Labor, 

Detroit, Michigan, for the complainant; Frank X. Fortescue, 

Esquire, Southfield, Michigan, for the respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

This is a discrimination proceeding filed by complainant MSHA on 

June 19, 1981, pursuant to section 105(c) of the Federal Mine Safety and 

Health Act of 1977, on behalf of complainant John Cooley for an alleged 

act of discrimination which purportedly occurred on May 6, 1980, ~ when 

Mr. Cooley was discharged from his employment with the respondent for 

refusing to follow an order from his supervisor to perform a work task 

which Mr. Cooley contends was unsafe. Mr. Cooley alleged that he had 

previously been suspended on May 2, 1980, for refusing to follow the same 

order, and he contends that the discharge which followed violated certain 

rights protected under the Act. 

Respondent filed a timely response to the complaint, and pursuant to 

notice served on the parties a hearing was held in Detroit, Michigan, during 

the term December 15-16, 1981, and the parties appeared and participated 

fully therein. Post-hearing arguments and proposed findings and conclusions 

were filed by the parties, and they have been considered by me in the 

course of this decision. 

'!:_/ MSHA's assertion in its original complaint that Mr. Cooley was discharged 

in 1981 appears to be a typographical error. The record in this case reflects 

1980 as the correct year. 

1013 
Issues presented 

The principal issue presented for adjudication in this case is 

whether Mr. Cooley's suspension and subsequent discharge from his employment 

with the respondent was in fact prompted by protected activity under the 

Act. Specifically, the crux of the case is whether Mr. Cooley's refusal 

to perform or carry out an order by his supervisor which he (Cooley) 

believed constituted an unsafe work assignment insulated him from suspension 

or discharge, and whether his abusive language warranted his discharge. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 301 

et~· 

2. Sections 105(c)(l), (2) and (3) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §§ 815(c)(l), (2) and (3). 

3. Commission Rules, 29 CFR 270P.l, et~· 

Stipulations 

The parties stipulated that respondent operates a mine within the 

meaning of the Act, that the Secretary has jurisdiction to initiate the 

complaint, and that I have jurisdiction to hear and decide the matter (Tr. 8-9). 

Testimony and evidence adduced by the complainant 

John W. Cooley, testified that he is married, completed his education 

through the ninth grade, and was employed by the respondent for 18 months 

prior to his discharge on May 6, 1980. · He described his job classification as "laborer" and stated that this included such "typical" duties 

as draining out elevator pits, shoveling and loading sand, hosing down 

the floor, driving "bobcats", and other general cleaning duties. He 

confirmed that prior to May 1980, he had been disciplined to carry out 

orders from his supervisor and received a.penalty of a week off without 

pay and placed on probation for 12 months. He had two weeks left on his 

probation time at the time of his discharge (Tr. 10-12). 

Mr. Cooley confirmed that David Chalmers was his supervisory foreman 

for at least six months prior to his discharge in May 1980, and he believed 

Mr. Chalmers had a great disregard for his own safety and cited several 

examples of this (Tr. 13). Mr. Cooley confirmed that he bid on a dryer 

operator's job in April 1980, and prior to this time he worked on the 

No. 6 Dryer as a laborer, and his duties included lighting the dryer 

pilot light with a cigarette lighter or a burning piece of paper. He 

stated that he performed these duties for some eight months prior to his 

discharge and that he lit the pilot in the fashion described at least 

thirty times, and "sometimes two three times a day" depending on when it 

would go out (Tr. 14-15). 

1014 
Mr. Cooley identified exhibit G-9 as a sketch or drawing of the No. 6 

Dryer which he made and he explained the location of the parts and described 

how he would light the dryer pilot light. He stated that the dryer was 

located on a second floor landing some eight feet off the ground, and he 

described where he would stand to light the pilot. He indicated that 

he would have to stand on his toes and lean over a railing to reach the 

pilot light location, and this position would expose him to a possible 

fall head first over the railing and through an opening to the steel 

floor below on the next landing. He also expressed concern over a "flash 

flame" from the pilot and indicated that "this is where I singed hair 

right off my knuckle" (Tr. 16-19). He also alluded to the fact that the 

floor where he had to stand to light the pilot was of ten slippery due 

to the presence of a thin coating of silica dust (Tr. 20). 

Mr. Cooley stated that he was instructed in the method for lighting 

the dryer pilot with a burning piece of paper or cigarette lighter by 

Mr. Chalmers and by Bill Nivitt, who was his supervisor prior to Mr. Chalmers. 

He had observed Mr. Chalmers lighting the dryer with a piece of burning 

paper and when he advised Mr. Chalmers that he believed it was unsafe 

to light it in that fashion Mr. Chalmers inserted a wad of paper towels 

in the pilot and lit it. However, the paper did not catch fire and 

Mr. Chalmers tried it a second time, and after a while it caught and 

ignited the pilot (Tr. 21-22). Mr. Cooley expressed his concern over the 

lighting of the dryer pilot with a burning piece of paper as follows 

(Tr. 23-24): 

Q. Okay. What was your opinion of lighting the 

No. 6 pilot with a burning piece of paper? 

A. Dangerous, stupid. 

Q. Why do you say that? 

A. I respect things. I just, I have great respect 

for things that are supposed to be. They got the correct way 

to do it. I will put it like that. They got a correct way to 

do it. If they don't do it that way, don't do it. 

Q. What was the correct way to do it? 

A. That panel board. Like I say, you got three lights 

on there. This is time. You got your cleaning to make 

sure you clear it. All right. When that light goes off, 

the other one comes on and you push that, sending -- that sends 

the gas. 

When that light goes off, the other one comes on, you 

ignite it. That is the correct procedure. 

Q. That wasn't working? 

1015 
A. No. And this made me believe that if this wasn't 

working, it is sheer madness not to think that these others 

could malfunction. And what if they would? You would get a 

double dose of gas in there. Well, hey, you know. 

Q. What were you afraid of? 

A. Getting burned up or blowed up or great danger. 

That is what I was afraid of. 

Q. Were you afraid of falling? 

A. I stated before, I was, Falling through this opening 

hole in the floor, yes. 

Q. You stated before that you bid on the drier operator 

job, why did you bid on the drier operator job if you thought 

it was unsafe? 

A. Well, to get out of lighting the pilot, 

Q, And? 

A. It is much -- how should I say? -- strenuous, and it i 

a little more pay. But the main reason was to get out of 

lighting the pilot. 

Q. Why did you think you would get out of lighting the 

pilot with a burning piece of paper if you bid on the drier 

operator job? 

A. That was before when I was on labor. Marvin Phelps 

and Smock, they would call Chalmers and he would order me 

to go back there and light that while they worked the control 

panel. 

Q. So the drier operator didn't usually have to hold 

the burning piece of paper? 

A. No, no. I seen the times, one time during that week, 

me and Marv, I beat him to the control panel and he didn't 

say nothing but he looked like he was kind of disappointed 

about it, you know, about lighting, reaching over. 

Mr. Cooley stated that after he received his bid as a dryer operator 

he received five days of training from Marvin Phelps, an experienced 

dryer operator who lit the No. 6 dryer with a piece of paper. During 

his training, Mr. Cooley stated that he lit it in that fashion on two 

occasions, but that he complained to Mr. Phelps as well as Mr. Chalmers 

that this was unsafe. He stated that he had also complained to Ken Smock 

and Sam Watson, two other dryer operators about lighting the pilot with 

burning paper (Tr. 27). 

1016 
Mr. Cooley testified that when he went to work on Friday, May 2, 1980, 

the last day of his training week, the dryer was down due to a problem 

so he proceeded to the lunch room. His foreman told him to get to work 

so he proceeded to the dryer area where he performed some clean up work 

and lubricated the trunion. Foreman Chalmers then called Mr. Phelps 

with instructions to "fire up" the dryer and when he (Cooley) leaned 

over the railing to light it the hair was singed off the knuckles of his 

right hand and that point he decided that he would never again light the 

dryer with burning paper. After making his mind up to voluntarily 

withdraw his bid as a dryer operator and informed Mr. Chalmers that he 

was "pulling his bid" as a dryer operator and informed him that he wanted 

to go back to his laborer's job, and Mr. Chalmers said 11 ok11 • Later that 

day Mr. Chalmers called him and ordered him to the No. 6 pilot, 

and Mr. Cooley refused. Mr. Chalmers reminded him that he 

Mr. Cooley cussed and stated to Mr. Chalmers that he would 

and Mr. Chalmers asked him to come to his office. When he arrived at 

the office, a union steward and safety man was present and Mr. Chalmers 

indicated that he wanted Mr. Cooley 11 off the property". Mr. Cooley 

thereupon was sent home, indicated t0 his union steward that he wished 

to file a grievance and left (Tr. 27-32), He has not been since 

that time (Tr. 32). 

On cross-examination, Mr. Cooley testified that he has worked in 

other plant open areas other than the No. 6 Dryer, some of which he 

considered to be unsafe. He indicated that he did complain about one 

of these areas, but claimed that he was 11 in the dark" about any company 

safety meetings (Tr. 35). He believed the entire plant was unsafe and 

stated that he had called unsafe conditions to the attention of his 

supervisors in the past (Tr. 37-39). Mr. Cooley conceded that 

to Mr. Chalmers about "doing laborer's work", such as 

the drYer, when he was in fact a dryer operator trainee. 

that he did not like working around a steel floor which had water on it 

and which was near the electrical dryer control panel. After he burned 

his knuckles, he decided he had had enough and he withdrew his bid, and 

he conceded that the pilot incident wasn't the controlling factor (Tr. 45-46). 

He also stated that he knew he was on probation and felt that management 

wanted to get rid of him. He also conceded cursing and using 

language when speaking with Mr. Chalmers, but insisted that he was not 

cussing "toward him" but was upset over the fact that he had withdrawn 

his bid (Tr. 46). He also conceded that rather than going to Mr. Chalmers' 

office he told him that he would meet him in the lunch room, and when he 

finally met him there Mr. Chalmers told him he wanted him off the property 

and that he was fired for refusing a direct order (TR. 47-48). The 

following Monday, he met with Mr. Bentgen and his union stewards, and 

he confirmed that he filed a grievance and identified a copy of the grievance 

which a union steward prepared for him (Exhibit R-1; Tr. 47-53). 

Mr. Cooley confirmed his prior probation before his discharge on 

May 2, 1980, and he also confirmed that he had other differences with 

company management while on probation and that he was suspended for a 

week (Tr. 57-48). He explained that he was suspended for not following 

a supervisor's order and that he realizes that he could have been fired 

for that incident (Tr. 60). 

1017 
Mr. Cooley testified that prior to May 2, 1980, he complained several 

times about the burner problem, and these complaints included complaints 

to his supervisors as well as to other dryer operators and a union safety 

man (Tr. 61-62). In response to further questions, he confirmed that he 

singed his knuckles on May 2, 1980, when he attempted to light the pilot 

with burning paper, and that coupled with the other problems he decided 

to bid off the job as dryer operator (Tr. 64). He stated that while he 

can read pretty well, he has difficulty in writing and nas difficulty 

in expressing himself in writing (Tr. 65), 

Hilliard W. Bentgen testified that he has worked at the quarry in 

question since February 1980, and is now the Industrial Relations Safety 

Director. He.has served in this position since June 1980, and prior to that 

time was the Industrial Relations Supervisor. li11980 the quarry had 90 

employees and comprised 650 acres. The quarry mines and processes silica 

sand. He stated that in 1980 dryer operators were required to make written 

inspection reports, and he identified exhibit G-8 as the reports for 

March and April 1980 (Tr. 82-85). 

Mr. Bentgen explained the procedures for tenninating employees and 

he indicated that Mr. Cooley's probationary period was fixed by an Industrial 

Board decision. He identified exhibit G-1 as a letter sent to Mr. Cooley 

terminating his employment, and he confirmed that the letter stated that he 

was discharged for (1) refusal to follow the instructions of his foreman; 

(2) use of foul and abusive language in dealing with his foreman; and (3) 

his prior disciplinary record with the company. He also explained that 

the failure by Mr. Cooley to follow his foreman's orders was in connection 

with his refusal to assist in the lighting of the No. 6 dryer, and the -

charge of using foul and abusive language resulted from foreman Chalmers 

telling him (Bentgen) that Mr. Cooley used "violent profanity" against 

him over the telephone. Mr. Bentgen related the circumstances surrounding 

the discharge as follows (Tr. 88-89): 

Q. What was the subject of the conversation in 

which John Cooley used this profanity? 

A. Mr. Chalmers related to me that he had instructed 

Mr. Cooley to go assist in lighting the drier and this 

resulted in the profanity from Mr. Cooley. 

Q. How was he instructed to do it? 

A. I couldn't give his exact words. Mr. Chalmers 

informed me that he had merely instructed John Cooley to 

assist in lighting the drier. 

Q. How was he supposed to assist? 

A. I assume he was going to hold the burning piece of 

paper or whatever, to light the drier. 

Q. All right; thank you. 

To your knowledge has anyone ever been fired for 

using profanity by Ottawa Silica Company? 

1018 
A. Not to my knowledge, no. 

Q. Had John Cooley used foul and abusive language 

without refusing to help Marvin Phelps light the No. 6 

drier, with a burning piece of paper, would you have fired 

him? 

A. In view of Mr. Cooley's prior record, yes, I would 

have. 

Q. In view of his prior disciplinary record? 

A. Yes, for insubordination. -We tend to review the job 

refusal and insubordination, both as insubordination acts. 

Q. You mean both the job refusal and the 

A. Yes. It could be a job refusal one time, the 

profanity the next time. 

Q. This was the same conversation, wasn't it? 

A. I am talking about his prior instances, 

Q. Prior instances? 

A. Yes. 

Mr. Bentgen testified that he investigated the circumstances surrounding 

the discharge of Mr. Cooley and that this consisted of conversations 

with the foreman and Mr. Cooley in the presence of union stewards. Based on 

the information which came out he made the decision to discharge Mr. Cooley. 

He believed that he asked Mr. Chalmers whether he told Mr. Cooley to light 

the pilot with a burning piece of paper, but could not recall what 

Mr. Chalmers' response was. He confirmed that Mr. Chalmers did not 

deny that he asked Mr. Cooley to light the pilot in that fashion and 

assumes that he did instruct him to do it in that fashion (Tr. 90). Later, 

during Mr. Cooley's grievance, Mr. Chalmers stated to him that Mr. Cooley 

had never informed him about any problems with the No. 6 dryer (Tr. 90). 

Mr. Bentgen confirmed that his investigation revealed that foremen had 

instructed people to assist the dryer operator in lighting the with 

a burning piece of paper, and that the foremen themselves had done it this 

way. This occurred on five or six occasions during a two or three month 

period prior to Mr. Cooley's discharge. After MSHA's investigation of 

Mr. Cooley's complaint, he issued a memorandum instructing personnel not 

to light the dryer with a burning piece of paper and he did so because "it 

was unclear in my mind whether it was unsafe or not. I did not have 

the information or know-how" (Tr. 92). Mr. Bentgen conceded that he had 

his doubts and questioned the method of lighting the dryer with a burning 

piece of paper, and he was aware that employees were lighting it in that 

fashion (Tr. 92-92). 

1019 
Mr. Bentgen admitted stating to MSHA investigator Russell Spencer 

that the lighting of the No. 6 dryer pilot with a burning piece of paper 

was an "unaccepted practice". He did not mean this to be interpreted 

as "unsafe", but rather, meant that there is a "preferable practice" or 

"better way" (Tr. 94). He explained his answer further as follows (Tr. 95-96): 

Q. You said it was an unaccepted practice by the management 

of Ottawa Silica? It was an unaccepted practice? 

A. Yes, for several reasons, not necessarily the safety 

factor. One, it took two men to light a drier that should 

have only taken one. 

Q. Right. 

A. I think in my mind at the time that that figured in 

there as important as any other reason. 

Q. That's right, because that might show it wasntt 

designed that way; it might· be unsafe. Is that correct? 

A. That wasn't in my mind at the time, 

Q. That's right. You were saying it was an unaccepted 

practice, is that right? 

A. It is unacceptable. 

Q. Why wouldn't you accept it? 

A. For the reasons that I have stated. 

Q. That it would take two people to do the job of one, 

it wasn't designed that way? 

A. No, it wasn't. 

JUDGE KOUTRAS: The other answer is: after Mr. Anderson 

from MSHA called him, he got the word MSHA didn't look too kindly 

with lighting the paper, he is liable to get a citation so 

he issued a memorandum setting the company policy; isn't that 

possible? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: Isn't that right? 

THE WITNESS: Like I say, I didn't know whether it was 

safe or not. I wasn't worried about the citation. 

Mr. Bentgen stated that he was familiar with the burner on the No. 6 dryer 

and that the pilot is designed to be lit by one employee standing at a 

control penal about ten feet away, and he identified exhibit G-2 as a 

1020 
copy of the drier start-up procedures which were a part· of the dryer 

operator's job description and they were in effect in May 1980 (Tr. 97). 

He confirmed that the procedures do not reflect that more than one person 

is required to light the dryer, and he also confirmed that the company 

did not contact the dryer manufacturer before ordering employees to ignite 

it by means other than the automatic controls (Tr. 98). He confirmed that 

the dryer procedures contain a notation indicating that the dryer purge 

was "jumped out", and he has not been able to contact any knowledgeable 

electricians or maintenance people to confirm that the purge was in fact 

bypassed as noted on the instructions (Tr. 99). He explained that the 

notation was typed on the exhibit in May 1978 by an individual who is 

no longer with the company, and Mr. Bentgen believed that the No. 6 purge 

had been repaired, and he could find "nothing to make me believe otherwise" 

(Tr. 99-100). 

Mr. Bentgen identified a copy of a portion of the manufacturer's 

booklet concerning a flame scan burner dealing with the operation of the 

dryer burner, and he explained the purge system (Tr. 102-104). With regard 

to any purge bypass, Mr. Bentgen stated that his repair records do not 

reflect when the purge was repaired (Tr. 106) 9 and he confirmed that 

Mr. Chalmers was fired by plant manager Terry Fester for poor work 

performance as a supervisor and for reporting to work on two occasions 

while intoxicated (Tr. 107). Mr. Bentgen identified exhibit G-4 as the 

labor-management agreement in effect between the union and the company 

in May 1980. The agreement became effective November 10, 1979, and it 

expires November 12, 1982 (Tr. 111). 

On cross-examination, Mr. Bentgen stated that the No. 6 dryer had 

problems in that a deflector which was installed to concentrate the gas 

flame toward the igniter spark plug was removed, and fabricated replacements 

were constantly being removed by persons unknown (Tr. 115). To his knowledge, 

there have been no accidents connected with the No. 6 Dryer (Tr. 116). 

Mr. Bentgen stated that when he met with Mr. Cooley on Monday, May 5, 1980, 

Mr. Cooley said he refused to do the job for safety reasons and denied 

using foul and abusive language against Mr. Chalmers. He also stated 

that Mr. Cooley had never spoken to him about safety complaints, and that 

Mr. Chalmers had no authority to fire Mr. Cooley. He also indicated that 

when Mr. Cooley returned to the plant on Monday, May 5, he came in late 

in the afternoon as if he were going to work (Tr. 118), and he made the 

decision to fire him for the reasons stated earlier (Tr. 119). He 

explained the grievance procedures and detailed the three-steps involved in 

Mr. Cooley's grievance, and confirmed that it was rejected and his 

discharge was sustained (Tr. 119~124). 

In response to bench questions, Mr. Bentgen stated that as of 1978, 

the notation on the dryer procedures reflecting that the purge was "jumped 

out" would inidcate to him that this was probably true (Tr. 127), and that 

for the period 1978 and 1979 it was probably "jumped out". However, he 

indicated that an electrician who had been at the plant for three years 

had no knowledge that the purge was "jumped out" (Tr. 128). With regard 

to the meeting with Mr. Cooley and the union stewards, Mr. Bentgen stated 

that the chief steward told him he would not want to light the dryer with 

burning paper because he was not a dryer operator and knew nothing about 

it. Mr. Bentgen stated "I was of the same opinion at the time because 

1021 
I didn't know anything about it", but he went on to state that he relied 

on the foreman's statement that he believed it was safe· and 11he was the 

expert at the time I consulted with him" (Tr. 135-136). 

Responding to a question as to whether he believed the lighting 

of the dryer with a burning piece of paper was safe, Mr. Bentgen replied 

as follows (Tr. 136-137): 

Q. Do you still feel that the lighting of this 

burner by manual means is safe? 

A. There is a preferable method. I don't think 

it is unsafe. I have done it myself and I would do it 

again. 

Mr. Fortescue mentioned the fact that 

applying the flame to the gas, if there is a drier 

operator there and I am holding the burning piece of paper, 

he turns on the gas, there is a flame about that long 

comes out of the pipe, directed in that direction and I 

am standing here holding the paper with the flame; unless 

he were to turn the gas on, and holding it there for some 

period of time, which you cannot do, because there is a 

safety device for that, if there is no flame in the gas to 

the pilot. If this were to happen and then I were to light 

the flame, then there might be an explosion. But I can't 

imagine the safety devices that are put in there, the 

scanning devices on the pilot would cut the light off to the 

pilot, if there is no flame. The fact. that the operator is 

standing there to turn the gas on while I have the flame 

to the pilot, I can't imagine any unsafety. 

Q. What if the purge is inoperative, if the purge 

is not operating? 

A. If the purge is not operating, I don't think 

there would be any chance of explosion from the pilot light. 

There may be a chance of explosion after the main burner is 

kicked on, if I were to walk away from the pilot. But I 

don't think I am qualified to answer that. 

With regard to the company's motivation in discharging Mr. Cooley, 

Mr. Bentgen indicated as follows (Tr. 141-142): 

Q. Of course. This whole case is what the state 

of mind of Mr. Cooley was at the time of his alleged refusal 

to perform the task of lighting that pilot light by whatever 

means. You seem to take, some people seem to take the position here it was an act of insubordination, compounded by 

the fact that he had similar problems of an insubordinate 

nature in the past. 

1022 
A. We believed at the time of discharge, and we 

still have the belief, that Mr. Cooley's job refusal 

was not, in fact, based upon a safety allegation, due to the 

fact that he did not mention anything about safety to the 

supervisor until after he was being sent home. That was 

our case through the Industrial Board; that was our belief at 

the time and still is. 

Q. But you heard his testimony that he had complained 

to two or three drier operators before. In fact, he complained to Mr. Chalmers. 

A. Mr. Chalmer denies that he ever made those complaints. 

Q. I understand. So your position in this, as a result 

of conversations the following Monday, it would be the 

company's position rather, that Mr. Cooley brought in the 

question of not being safe as an afterthought? 

A. That was the position. We always took the hypothetical position that, say the job was unsafe, would Mr. Cooley 

have been fired anyway because of the way he reacted? We 

decided that based upon his record of similar instances that 

he acted in the same way he had acted in all the other ways, 

and that was improper. 

Q. Would you classify him as a hot head? 

A. Yes. I think Mr. Cooley has a temper. Like I said, 

he has to work on it. 

Q. You heard his testimony that his obscenities and 

his cursing, et cetera, were not directed at the individual 

but directed at the principle of his being forced to light 

this burner on several occasions? 

A. The foreman does say he felt obscenities were directed 

at him rather than varied in nature. 

Q. What is the company's present position again with 

respect to the refusal by an employee to light this burner 

manually? You say it is not an accepted practice and it would 

be subject to discipline? 

A. That policy was issued when I had the doubt, prompted 

by Tom Anderson. I haven't retracted that policy. But that 

has never been a question, because the cowell has never 

been removed. 

Mr. Bentgen detailed the prior disciplinary problems concerning 

Mr. Cooley which included suspensions and probation for insubordination, 

job refusal, and absenteeism, but he indicated that known of these 

1023 
incidents were related to any safety complaints made by Mr. Cooley. He 

also indicated that during his tenure as the industrial· relations officer 

he received no safety complaints from Mr. Cooley, nor was he ever advised 

that any such complaints were ever filed (Tr. 145). 

Kenneth R. Smock testified that he is employed by the respondent as 

a dryer operator, and has served in that capacity "off and on about two 

years". Mr. Smock stated that during one of his breaks on Friday, May 2, 1980, 

he encountered Mr. Cooley, and was advised by Mr. Cooley that he had 

withdrawn his bid for dryer operator and "was back on labor". Since 

the dryer operator's job paid more money, he asked Mr. Cooley for an 

explanation as to why he had withdrawn his bid, and before he could answer 

he was summoned to the phone to answer a call from Dave Chalmers, Mr. 

Smock overheard part of what Mr. Cooley said, and it included some cussing 

by Mr. Cooley. Mr. Cooley hung the phone up, but Mr. Smock could not 

recall exactly what Mr. Cooley told him with regard to why he bid off 

the dryer operator's job (Tr. 149-150). 

Mr. Smock stated that while Mr. Cooley was employed as a laborer 

had assisted him in lighting the dryer, as did another laborer. Although 

Mr. Smock knew that Mr. Cooley did not like lighting the dryer pilot 

with a burning piece of paper, he could not recall him specifically 

stating that he believed it was unsafe and Mr. Smock did not inquire as 

to the reasons why he did not like lighting it in that fashion (Tr. 150). 

Mr. Smock identified exhibit G-10 as certain dryer operator reports which 

he filled out during the period February through April 1980, and they 

were submitted to Mr. Chalmers (Tr. 151). Mr. Smock also stated that he 

had observed Mr. Chalmers light the dryers with a piece of burning paper 

and that this was before Mr. Cooley was fired (Tr. 151). 

On cross-examination, Mr. Smock testified that he was assigned to 

the dryer a week or so before Mr. Cooley was fired, and at that time he 

was aware of the fact that the purge cycle had been "jumped out". He 

explained that the dryer would not light and that the wire had been 

burned off due to people putting paper in. The paper would ignite the 

wire, but if "someone stretched it out and ran it around the spark plug 

and it would work. It worked occasionally" (Tr. 152). He reported the 

matter by indicating that "pilot needs to be fixed" on his reports. He 

stated that the purge cycle was the "yellow light on the console" and when 

that indicator light would come on, this would indicate that the purge 

was completed (Tr. 153). He had reason to believe that the purge was 

not working because the pilot button would not light when it was depressed, 

and the burnt wire, coupled with sand and water which would get into 

the pilot, caused the problem. He also stated that the pilot deflector 

was missing, but he saw no one remove it, nor could he state why anyonP 

would want to remove it (Tr. 154). 

In response to bench questions, Mr. Smock stated that the telephone 

conversation between Mr. Cooley and Mr. Chalmers lasted a few minutes and 

he only overheard Mr. Cooley speaking, and the explained what he heard 

as well as what followed later in the day (Tr. 156-157): 

1024 
Q. Do you recall what the subject of the conversati on was when he was cursing? 

A. Yes. It was to light the pilot. 

Q. Was it over the pilot light being difficult to light? 

A. As near as I can remember, John didn't want to light 

it. I don't know what the reason was. I didn't hear it stated. 

It could have been because he thought it was unsafe. But 

then again, it could have been that is the way John does things. 

He fails to get some things out. Maybe that was it. I don 7 t 

know. 

Q. Did Mr. Cooley say anything to you that day about his 

difficulty with the pilot light and the burner and that sort 

of thing? 

A. Later on in the day, yes. 

Q. But not prior to the conversation? 

A. No, no, he didn't. 

Q. What did he tell you later in the day? 

A. He felt that it was unsafe. I had to leave. I had to 

go relieve the drier. I coundn't stick around, you know, to talk 

to him. 

Q. Were you aware of the fact that he, or had he ever told 

you that he was burned or received some injury from trying to 

light the pilot before? 

A. Yes. It does sort of ring a bell. It seems to me that 

he did tell me that but I don't know if it was after the phone 

call or a long time before, or what. I don't know. It has 

been so long. 

Mr. Smock detailed the procedures he and Mr. Cooley followed while 

attempting to light the dryer pilot, and he indicated that 90% of the time 

it did not light. If Mr. Smock had no paper or matches, he would ask any 

laborer who happened by to assist him. Someone had to be at the control 

panel while the other person was at the pilot light location. He later 

developed his own system for lighting it by himself. He would insert a 

piece of paper into the pilot hole, light it, and he would then run over 

to the control panel while the paper was burning. He believed this 

practice was safe, and replied as follows as to how others may have felt 

(Tr. 159-160): 

1025 
Q. Doesn't it strike you as unusual that Mr. Cooley 

is the only one that feels that this is unsafe to light it 

that way? 

A. No, I have heard other people say they thought it 

was unsafe, but I never -- Put it this way: they haven't been 

around it as much as I have. I have been around it quite a 

bit more. I was on production relief, which I have to know how 

to operate the driers in case one of the operators don't show up, 

I have to take his place. 

Q. How long was Mr. Cooley around at the time, prior to 

the time this happened? 

A. Well, I really -- Well, he didn 1 t know that much about 

it. 

Q. You don 1 t consider him to be as experienced as you? 

A. ~. 

Q. In that situation do you find it unusual that he was 

reluctant, assuming that there were experienced persons to light 

it? 

A. Not really. 

James Marvin Phelps, testified that he has been employed with the 

respondent for two years and nine months. During the period Apil 1978 

to May 2, 1980, he worked as a dryer operator and he was assigned the 

task of training Mr. Cooley as a dryer operator during the week when he 

was discharged. Mr. Bentgen assigned hi~ the job of training Mr. Cooley 

and Mr. Phelps stated that the automatic lighting system for the No. 6 

dryer was not working during the week in question and that it had not 

been working for two or three months prior to Mr. Cooley's discharge. 

Mr. Phelps identified exhibit G-11 as copies of 10 reports he filed 

with the respondent with respect to his daily inspection of the No. 6 

dryer, as well as other equipment for which he is responsible. The 

reports reflect dryer conditions which required maintenance and attention, 

and the reports are routinely made by him when he finds equipment in 

need of maintenance or repair. 

Mr. Phelps stated that prior to his bidding on the dryer operator's 

job Mr. Cooley helped him light the No. 6 drier. Two people were required 

to light the dryer because the automatic lighting system was not working 

properly. One man was required to be at the control panel to activate 

certain buttons, and a second man was required to be at the dryer 

burner location in order to manually light the pilot light. Mr. Phelps 

would position himself at the control panel, and Mr. Cooley would light 

the pilot light by means of burning paper over the pilot light. 

1026 
Mr. Phelps confirmed the fact that foreman Chalmers was aware of 

the fact that the automatic dryer lighting mechanism was not working and 

Mr. Phelps stated that he advised Mr. Chalmers of this fact. Mr. Phelps 

also confirmed that Mr. Cooley complained to him that lighting the dryer 

with paper was unsafe, but he did not know whether Mr. Cooley communicated 

this fact to Mr. Chalmers (Tr. 166-170). 

On cross-examination, Mr. Phelps asserted that the problem with the 

automatic lighting mechanism for the No. 6 drYer was an "on and off" 

situation. He explained that the problems were intermittent and resulted 

from the fact that the metal covering over the pilot light area was 

being "ripped off". He reiterated the fact that Mr. Cooley complained 

about the unsafe practice of lighting the No. 6 dryer manually by use of 

a piece of paper. 

Mr. Phelps stated that on May 2, 1980, when he came to work the 

dryers were out and no production was in progress. There was a problem 

with a crane and the dryers were not on. He received a call from Mr. Chalmers 

at approximately 5:30 p.m., and Mr. Chalmers instructed him to light the 

No. 6 drYer. He believes that Mr. CQoley assisted him in lighting the dryer 

at that time by means of a piece of paper. The pilot light subsequently 

went out and Mr. Chalmers called him a second time and instructed him 

to light the dryer. Mr. Cooley refused to help him and stated that it 

was unsafe. Mr. Phelps reported this to Mr. Chalmers and asked him to 

send someone to help him light it. Mr. Chalmers came and lit it himself 

and Mr. Cooley left the area and went to the cafeteria after advising 

Mr. Phelps that he was withdrawing his bid for the dryer operator's job. 

Mr. Phelps stated that he was not present during the phone conversation 

between Mr. Cooley and Mr. Chalmers and he could not testify as to that 

conversation (Tr. 170-178). 

In response to further bench questions, Mr. Phelps stated that he 

never attended any company safety meetings, and he believed the purpose 

of the dryer purge system "was to clean out, if there was any gases left 

in the line it would blow them out so there wouldn't be any built-up 

gas in there" (Tr. 181). As for any complaints made by others with regard 

to the dryer, and Mr. Cooley's reluctance to light it, he stated as follows 

(Tr. 179, 182) : 

Q. Do you find it unreasonable -- This may be 

a difficult question for you to answer, but I still ask 

it anyway. Do you find it unreasonable for Mr. Cooley, 

under the circumstances to refuse to light it? 

A. If he thought it was unsafe, he thougltit unsafe, 

you know. That's all. 

* * * * * 

Q. Have you ever heard of any other employees at this 

facility, at this organization, complain about the method 

in which the pilot light was being lit on this burner or 

any other burner, for that matter? 

1027 
A. None of the drier operators complained about it, 

you know; That wasn't the right way to do it; but we all 

do it. We didn't feel it was unsafe. Some of the other 

employees, you know, told us it wasn't safe, we shouldn't 

be doing it that way. 

Q. Who were some of these other employees? 

A. I can't really remember. Just people talking. 

Q. Just general conversation and chit chat? 

A. Right. 

Q. Why would they talk to you about it? 

A. I don't know. It would just come up, I guess, 

And, at pages 183-184: 

Q. I have a little difficulty in listening to the 

the testimony of witnesses today, Everybody seems to be 

talking to each other about the manner in which this thing 

is lit. Some people think it is safe; others don 1 t, 

A. That is not the right way to do it. It is not 

the safe way to do it, but I didn't feel I was in any danger. 

Q. No. What I am saying: if employees, if this were a 

topic of conversation one would think at least some safety 

people would be involved or someone at least would mention it 

to somebody. 

A. Well, they did, they did. The office knew about it, 

you know. 

Q. Which office? 

·A. The management, I guess. The foreman knew about it, 

you know. 

Q. Knew about what? Knew about the way it was being lit? 

A. Yes, they knew the way it was being lit. They did do 

it; Chalmers did it. 

* * * * * 

Q. Did someone make a decision Did someone come in 

and look at these two driers, mangement came to the conclusion 

that it was safe. From that point it would be standard operating 

procedure to light it with a newspaper? 

1028 
A. No. 

Q. It was just what? It was an accepted practice? 

A. I can't say what they were thinking. I don't know. 

I don't know why they didn't fix it sooner. They knew about 

it beforehand. 

Q. Now, when this system is operating perfectly, with 

the use of the button, I assume there is no need to use a 

newspaper, right? 

A. Right. 

Q. It is all done automatically? 

A. Right, 

Q. Is that the better way? 

A. It is the right way; it is a better way. It is easier. 

Mr. Phelps stated that during the entire week that he trained Mr. Cooley 

on the No. 6 dryer, the pilot had to be lit by means of paper and that it 

would not light automatically (Tr. 198). He also indicated that the No. 5 

dryer, which had the same ignition system as the No. 6 dryer, worked well 

and would light automatically (Tr. 201-202). 

Kenneth Stumpmier testified that he has been employed by the respondent 

for over nine years, and approximately six years ago he worked as a dryer 

operator for about a year. He stated that he has observed David Chalmers' 

work habits and Mr. Chalmers "didn't have much regard for safety" (Tr. 203). 

He explained that Mr. Chalmers would do things that other employees would 

not do because of safety reasons. Mr. Stumpmier stated that he was a 

union steward in May of 1980 and on Friday, May 2nd of that year he spoke 

with Mr. Cooley in the lunch room and Mr. Cooley told him that Mr. Chalmers 

was sending him home because he would not light the No. 6 dryer with 

a piece of paper. After Mr. Cooley told him that he would not light it 

in that manner because it was unsafe, Mr. Stumpmier attempted to speak 

with Mr. Chalmers about the matter but he refused to speak with him (Tr. 203-

205). 

Mr. Stumpmier testified that he was at the meeting with Mr. Cooley 

and Mr. Bentgen on Monday, May 5, 1980, and he told Mr. Bentgen that 

he too would not light the No. 6 dryer with a burning piece of paper because 

he believed it was unsafe to light it in that fashion. A month later, 

Mr. Bentgen issued a memorandum stating that anyone found lighting the 

dryer with a burning piece of paper would be subject to disciplinary action, 

including discharge (Tr. 206). 

On cross-examination, Mr. Stumpmier confirmed that Mr. Chalmers is 

no longer employed with Ottawa Silica and he believed he was in Utah. 

In the past he never heard Mr. Chalmers order anyone to do anything unsafe 

1029 
and when he was a dryer operator he experienced no problems in lighting 

the No. 6 dryer automatically. Mr. Cooley had not previously complained 

to him about any unsafe working conditions connected with the dryer. 

Although Mr. Cooley was "kind of mad" when he spoke with him on May 2, 

he could not recall his using any profanity (Tr. 208). He assisted Mr. Cooley 

in preparing his grievance a few days after his discharge, and he believed 

that Mr. Chalmers "had bad feelings toward John" (Tr. 213). However, he 

stated that this was only his opinion and he based it on the fact that 

Mr. Cooley and Mr. Chalmers did not "joke around togethe'r" as other 

workers and foremen do (Tr. 217). 

MSHA Inspector Russel L. Spencer testified that he was employed as 

a special investigator and confirmed that he conducted an investigation 

in August, 1980, in connection with the discrimination complaint filed 

by Mr. Cooley. Mr. Spencer stated that he had never been to the quarry 

in question previously and that he observed the No. 6 dryer on two occasions 

during his investigation, once on August 20, and again on August 21, 1980. 

He described the area around the No. 6 dryer, and stated that he measured 

the distance from the railing position where one would stand to light 

the burner pilot light to the pilot light, and determined that it was 

54 inches, The dryer is located on the second floor which is approximately 

eight feet about ground level, and adjacent to the railing is an opening 

or hole which measured 24 inches by sixty inches, and which is between 

the railing and the pilot light location. The floor was wet and sandy 

and he observed no deflector shield over the pilot light. Mr. Willard 

Stubblebine,an electrician, was with him at the time and he hung over the 

floor hole demonstrating how he would light the pilot light (Tr. 230-235). 

Mr. Spencer testified as to his mining background and experience 

which began in 1951, and he stated that he has been a Federal mine inspector 

since 1970. His experience also includes employment as a state safety 

inspector with the Michigan Department of Labor (Tr. 242). Mr. Spencer 

stated that he did not believe it was safe to light the No. 6 dryer pilot with 

a burning piece of paper because the automatic ignition controls which 

were installed for the dry.er were installed for that purpose. He also 

indicated that the dryer was not intended to be ignited manually, and 

that when he recently visited the dryer site on Monday, December 14, he 

attempted to reach the spark plug igniter from the position where 

persons using burning paper were standing, and he had difficulty doing it. 

He also believed that the area where he stood presented slip and fall 

hazards due to the wet floor and the proximity to the floor hole (Tr. 243-

245). 

On cross-examination, Mr. Spencer stated that he was not personally 

aware that the dryer had been substantially modified since he first observed 

it in August 1980, but that Mr. Bentgen informed him that this was the 

case. He also stated that he had not attempted to reach the pilot light 

in August 1980, when he was there, and that the floor hole conditions were 

based on his 1980 observations (Tr. 246-247). 

1030 
In response to bench questions, Mr. Spencer stated that he observed 

no substantial changes in the dryer that may have taken·place since 

August 1980, and that the operator controls have not been changed, and 

the location of the railing around the dryer has not changed within an 

inch or so. He also confirmed that he never inspected the plant in 

question other than to investigate Mr. Cooley's discrimination complaint 

(Tr. 249). 

Mr. Spencer stated that he has inspected numerous sand and gravel 

and crushed stone mining operations covered by the Part 56 safety standards, 

and that those standards would apply to a silica sand operation such as 

those conducted by the Ottawa Silica company. He conceded that he is 

not familiar with the dryer in question, is not an expert, and he has 

never worked on such a dryer (Tr. 251). He was not aware of any mandatory 

safety standard which would apply to the dryer in question, and he indicated 

that the question of whether lighting it with a of paper was an 

unsafe act which would depend on such circumstances as to whether the floor 

was wet or slippery, whether the person extended himself over the railing, 

and whether safe access was provided. Also, consideration must be given 

to whether the dryer was intended to.be ignited by paper, or whether 

the dryer could be considered as "defective equipment" under section 56,14-25 

or 26, Other considerations would be whether the dryer purge cycle was 

burned out and the possibility of pre-ignition (Tr. 252-256). 

Respondent's Testimony and Evidence 

Willard Stubblebine, testified that he has been an electrician for 

23 years, and has worked in that capacity for the respondent since January 2, 

1979. He is responsible for the electrical performance of all of the 

equipment in the plant, including the dryers. Prior to May 1980, the No. 6 

dryer had problems in that sand was getting into the burner, preventing 

the pilot light from lighting. If it does not light within 30 seconds, 

it shuts down. He fabricated a shield to hold back a pocket of gas which 

would facilitate lighting the pilot. The shields kept getting lost, 

so the men used paper to ignite the pilot. The purpose of the shield 

or deflector was to keep the sand out of the burner, and it was first 

installed on the dryer in early 1979. The dryer was not equipped with a 

shield when he first began working on it, and he fabricated them out of 

tin hose clamp, and he replaced it eight or ten times during the first half 

of 1980 (Tr. 261-264). 

With regard to any complaints regarding the lighting of the pilot 

by means of burning paper, Mr. Stubblebine testified as follows (Tr. 265-266): 

Q. How would you find out that it had to be replaced? 

A. Normally the operators would complain about lighting 

it with the paper. 

Q. How would you find out about it? 

1031 
A. I shouldn't say "operators complain;!'. they didn't 

complain to me. If they were complaining to the boss, I 

don't know. I would find out a lot of times by walking back. 

A kid that used to be on the third shift, Marshall, would 

tell me. He wasn't complaining. He used to like lighting it 

with a paper. He had his own little thing worked out. He 

didn't step over the railing like you, he draped a paper towel 

out of the burner or wired it up and the pilot would catch 

on fire and the burner would light. 

I can't really remember operators complaining to me. 

I remember them telling me it wasn't working, but as far as 

reaching a real and heavy complaint, I don 1 t know. Now, how 

often, you know, if they ever complained to the foreman, I 

don't know. A lot of time I think Russ Heyman may have mentioned 

it to me. Offhand I can 1 t remember anybody coming over to the 

shop saying it is not working, 

Q. Did anybody ever complain to you that they felt it 

was unsafe to light it by paper? 

A. I can 1 t say for sure because I hear so much junk in 

the lunchroom that don't mean nothing. I can 1 t say, 

Q. Did John Cooley ever complain to you? 

A. No. John Cooley, I never talked to. 

Regarding the lighting of the burner with a piece of paper or 

cigarette lighter, Mr. Stubblebine stated as follows (Tr. 266-267): 

Q. Do you have an opinion as to whether or not 

it is safe to light the burner with a burning piece of paper 

or cigarette lighter? 

A. Well, my opinion, you know, I don't think it is. 

What you are lighting is just the pilot. There is so much 

safety involved, to get the main gas open, you know, and I 

guess in extreme cases -- I don't know what the percentage 

would be -- the main burner may open sometimes, but I don't 

know. 

I tried to light the main burner already without the 

pilot. I couldn't get it lit. You've got to get the pilot 

lit. You have to have your roof blower on. You have to have 

your combustion blower on. You have a high and low gas limit. 

You have an air limit from the combustion blower just to ignite 

your pilot. When you push the button to get your beep you 

have a Honeywell control unit and you have 30 seconds to light 

it. If it don't light it shuts down and starts pumping again. 

Okay? 

1032 
Now, once you get the pilot, I think within 15 

seconds you got to have an established pilot within 15 

seconds for the main gas to open, which is a motorized 

safety shut-off valve for the gas. Once you establish 

pilot, that opens. Now, I never seen one open without 

establishing a pilot, although I think, like I said, it 

is probably possible. I never saw it. 

Q. Do you believe it is safe or unsafe to to 

it that way? 

A. I think it is safe. 

Mr. Stubblebine testified that at the present time the No. 6 dryer 

purge cycle is working, but that in the past there was a problem with an 

electrical alloy which would affect the purge cycle. However, since 1979 

he has never known the purge cycle on the No. 6 dryer to be "j out" 

(Tr. 268). Since May 1980, a new conveyor was installed alongside the 

dryer and the railing was moved back somewhat and made higher. Although 

the water and sand problems around the dryer were "bad" in 1979, it is 

now under control (Tr. 269-270). 

On cross-examination, Mr. Stubblebine stated that while sand and 

water was present in the dryer area in May 1980, he observed no "build-up" 

of such materials. He indicated that it was a common practice to climb 

over the railing and stand on an adjacent I-beam next to the cover to 

it. He also observed a foreman light the pilot with material wrapped around 

a hangar wire and he considered that to be the "worst way" to light it 

(Tr. 270-274). 

Mr. Stubblebine stated he had heard talk among some employees that 

lighting the dryer pilot with paper was unsafe, but he believed the 

majority of talk is not by the dryer operators but by others. He also 

indicated that the dryer operators are normally responsible for lighting 

the dryers and that laborers would be expected to do this if they were 

assigned the job. He could not explain the notation on the dryer instructions 

(exhibit G-2) that the purged had been "jumped out". Even if it were jumped 

out, he would still not be reluctant to light it with a piece of paper. 

However, he has known of instances where the purge was "jumped" or "shorted" 

to save the three to five minutes waiting time for the purge cycle to start 

again. 

Mr. Stubblebine explained the operation of the dryer purge system, 

and stated that if the pilot does not. light the first time, another three 

or four minutes will pass before an attempt to again initiate pilot can 

be made. He indicated that "you just keep going until you get it lit", 

and "that is where you can run into a p.roblem" (Tr. 279). He explained 

that he did not know what could occur with the dryer, but with a blast 

furnace, repeated attempts to initiate pilot could cause a gas build-up 

"inside the blast furnace that would blow". He believed any such gas 

build-up in the dryer would disperse into the air because it is so open 

(Tr. 279). 

1033 
When asked whether he knew what the instant case was all about, Mr. 

Stubblebine replied "I think it is something about John Cooley's 

discrimination", and he further stated as follows (Tr. 280-281): 

Q. Let me tell you what it is about so I can 

ask you this question. Put yourself in John Cooley's 

shoes and he is asked to light that pilot with a piece 

of paper and he refuses to do it because he thinks 

it is unsafe; not because you think it is unsafe. He 

thinks it is unsafe. And they tell John Cooley, you know, 

"Mr. Cooley, your job here is to follow instructions and when 

you are told to light the system, light the drier, you light 

the drier. If you don't that is insubordination, et cetera, 

and therefore you are subject to discharge for failing to 

follow orders." Leaving aside some other facts in this 

case that I haven't given you, putting yourself in Mr. Cooleyis 

shoes, what would be your reaction to that situation? 

A. I would have to respect his opinion. If I 

thought it was unsafe to light it then I would have to have 

a case up myself, I guess, because I wouldn 1 t light it if 

I felt it was unsafe. 

Q. But you personally don't think it was unsafe in 

this case? 

A. No. 

Q. I think that you have lit it, you have put the 

fire to the pilot many times? 

A. Not many times. 

Q. You have done it on occasion? 

A. Yes. 

Discussion 

In Secretary of Labor on behalf of David Pasula v. Consolidation 

Coal Company, 2 FMSHRC 2786 (October 14, 1980) (hereinafter Fasula), the 

Commission analyzed section 105(c) of the Act, the legislative history 

of that section, and similar anti-retaliation issues arising under other 

Federal statutes. The Commission held as follows: 

We hold that the complainant has established a 

prima facie case of a violation of Section 105(c)(l) 

if a preponderance of the evidence provides(l) that he 

engaged in a protected activity, and (2) that the 

adverse action was motivated in any part by the 

protected activity. On these issues the complainant 

must bear the ultimate burden of persuasion. The 

employer may affirmatively defend, however, by proving 

1034 
by a preponderance of all the evidence that, although 

part of his motive was unlawful, (1) he was also motivated by the miner's unprotected activities, and (2) 

that he would have taken adverse action against the 

miner in any event for the unprotected activities 

alone. On these issues, the employer must bear the 

ultimate burden of persuasion. It is not sufficient 

for the employer to show that the miner deserved to 

have been fired for engaging in the unprotected activity; 

if the unprotected conduct did not originally concern the 

employer enough to have resulted in the same adverse 

action, we will not consider it. The employer must 

show that he did in fact consider the employee deserving 

of discipline for engaging in the unprotected activity 

alone and that he would have disciplined him in any 

event. Id. at 2799-2800. 

Although upholding the Administrative Law Judge's decision that Pasula 

has a "right to walk off the job" for: safety reasons, the Commission 

acknowledged that such a right is not explicitly covered by the plain 

language of the Act. However, relying on the legislative history, the 

Commission stated as follows: 

We must look to the entire statute, being mindful 

that the 1977 Mine Act is remedial legislation, and is 

therefore to be liberally construed. • • . In determining whether section 105(c)(l) protects Pasula's refusal 

to work, we consider it important that the 1977 Mine 

Act was drafted to encourage miners to assist in and 

participate in its enforcement . . • • The successful 

enforcement of the 1977 Mine Act is therefore particularly 

dependent upon the voluntary efforts of miners to notify 

either MSHA officials or the operator of conditions 

or practices that require correction. The right to do 

so would be hollow indeed, however, if before the regular 

statutory enforcement mechanisms could at least be 

brought to bear, the condition complained of caused the 

very injury that the Act was intended to prevent. A 

holding that miners have some right to refuse work under 

the 1977 Mine Act therefore appears necessary to fully 

effectuate the congressional purpose. 

Pasula was appealed to the United States Court of Appeals for the 

Fourth Circuit, and in an opinion filed October 31, 1981, 663 F.2d 1211, 

the Court reversed the Commission's decision after finding that Pasula's 

discharge was premised not on his walking off the job but on his closing 

down of a continuous mining machine. The Court observed that "Pasula 

was not disciplined because he refused to work but rather because he 

exceeded the scope of his right to walk off the job under the Mine Act." 

1035 
In considering the effect of a previous arbitration decision which had 

denied Pasula's claims of discrimination, the Court made the following 

observations at 663 F.2d 1219: 

In this case, the considerations underlying the 

standards of gravity of injury in the Wage Agreement 

and in the statute are different. The Wage Agreement 

requires the arbitrator to determine whether the 

hazard was abnormal and whether there was imminent 

danger likely to cause death or serious physical harm. 

The underlying concern of the Mine Act, however, is 

not only the question of how dangerous the condition 

is, but also the general policy of anti-retaliation 

(against the employee by the employer). Because this 

is a major concern of the Mine Act, it requires proof 

merely that the miner reasonably believed that he 

confronted a threat to his safety or health. Those who 

honestly believe that they are encountering a danger 

to their health are thereby assured protection from 

retaliation by the employer even if the evidence 

ultimately shows that the conditions were not as 

serious or as hazardous as believed. Questions of imminence and degree of injury bear more directly on the 

sincerity and reasonableness of the miner's belief. 

(emphasis added) 

In a detailed footnote at 663 F.2d 1216-1217, the Pasula Court discuased 

the right of a miner to refuse work, and although the Court did not state 

any specifics, it did agree that there was such a right in general when 

it stated: 

Thus, although we need not address the extent of 

such a right, the statutory scheme, in conjunction with 

the legislative history of the 1977 Mine Act, supports 

a right to refuse work in the event that the miner possesses 

a reasonable, good faith belief that specific working 

conditions or practices threaten his safety or heal~h. 

Id. at 1217 n. 6. 

In Pasula the Commission est.ablished in general terms the right of a 

miner to refuse work under the Act, but it did not attempt to define the 

specific contours of the right. In several decisions following Pasula, 

the Commission discussed, refined, and gave further consideration to questions 

concerning the burdens of proof in discrimination cases, "mixed-motivation 

discharges", and "work refusal" by a miner based on an asserted safety 

hazard. See: MSHA, ex rel. Thomas Robinette v. United Castle Coal Companx, 

VA 79-141-D, April 3, 1981, MSHA ex rel. Johnny N. Chacon v. Phelps Dodge 

Corporation, WEST 79-349-DM, .November 13, 1981. 

1036 
In Robinette, the Commission held that a miner may· refuse and cease 

work if he acted in good faith and reasonably believed that the performance 

of the work would expose him to a hazard. The Commission also held that 

the right to refuse work may extend to shutting off or adjusting equipment 

in order to eliminate or protect against a perceived hazard. The facts 

presented in the instant case are similar to those presented in Robinette. 

Robinette complained about being taken off a job as a miner's helper and 

being reassigned as a conveyor belt feeder operator. Robinette ceased 

to operate and shut down the belt after his cap lamp cord was rendered 

inoperative and he could not see. Robinette and his section foreman 

exchanged heated words over the incident and Robinette uttered several 

cuss words. Robinette's prior work record included prior warnings for 

unsatisfactory job performance and insubordination, and his section foreman 

was not too enchanted with his work, The section foreman testified that 

"anytime Robinette had to do something he did not like, he usually messed 

it up". 

The Judge who heard the Robinette case treated it as a "mixed motivation" discharge case. Although finding that Robinette's work was 

than satisfactory" and that he was "obviously belligerent and uncooperative" 

with his section foreman as a result of his change in job classification, 

Judge Broderick concluded that the "effective" cause of Robinette 1 s 

discharge was his protected work refusal, and he rejected the operator's 

contentions that the primary motives for the discharge were insubordination 

and inferior work. 

In Robinette, the Commission ruled that any work refusal by an 

employee on safety grounds must be bona fide and made in good faith. 

"Good faith" is interpreted as an "honest belief that a hazard exists", and 

acts of deception, fraud, lying, and deliberately causing a hazard are 

outside the "good faith" definition enunciated by the Commission. In 

addition, the Commission held that "good faith also implies an accompanying 

rule requiring validation of reasonable belief", but that "unreasonable, 

irrational or completely unfounded work refusals do not commend themselves 

as candidates for statutory protection". 

In fashioning a test for application of a "good faith" work refusal, 

the Commission rejected the "objective, ascertainable evidence" test laid 

down in Gateway Coal Co. v. Mine Workers, 414 U.S. 368 (1973), and instead 

adopted a "reasonable belief" rule, which is explained as follows at 3 

FMSHRC 812, April 3, 1981: 

More consistent with the Mine Act's purposes and 

legislative history is a simple requirement that the miner's 

honest perception be a reasonable one under the circumstances. 

Reasonableness can be established at the minimum through 

the miner's own testimony as to the conditions responded to. 

That testimony can be evaluated for its detail, inherent logic, 

and overall credibility. Nothing in this approach precludes 

the Secretary or miner from introducing corroborative physical, 

.testimonial, or expert evidence. The operator may respond in 

1037 
kind. The judge's decision will be made on the basis 

of all the evidence. This standard does not require 

complicated rules of evidence in its application. We 

are confident that such an approach will encourage 

miners to act reasonably without unnecessarily inhibiting 

exercise of the right itself. 

* * * * * * * * * * * * 

In sum, we adopt a good faith and reasonableness 

rule that can be simply stated and applied: the miner 

must have a good faith, reasonable belief in a hazardous 

condition, and if the work refusal extends to affirmative 

self-help, the minervs reaction must be reasonable as well. 

In MSHA ex rel. Michael J. Dunmire and James Estle v. Northern 

Coal Company, WEST 80-313-D and WEST 80-367-D, February 5, 1982, the 

Commission defined further the scope of the right to refuse work under 

the Act by adding a requirement that.a statement of a health or 

complaint must be made by the complaining miner, and adopted the following 

requirement: 

Where reasonably possible, a miner refusing work should 

ordinarily communicate, or at least attempt to communicate, 

to some representative of the operator his belief in the 

safety or health hazard at issue. "Reasonable possibility" 

may be lacking where, for example, a representative of the 

operator is not present, or exigent circumstances require 

swift reaction. We also have used the work, "ordinarily" 

in our formulation to indicate that even where such 

communication is reasonably possible, unusual circumstances 

--such as futility--may excuse a failure to communicate. 

If possible, the communication should ordinarily be made 

before the work refusal, but, depending on circumstances, 

may also be made reasonably soon after the refusal. (Emphasis 

added). 

Respondent's arguments 

In its posthearing brief, respondent argues that Mr. Cooley was 

discharged on May 2, 1980, because his conduct and language was so 

reprehensible that it could no longer be tolerated in the work place. 

Citing prior occasions of "foul temper" which caused disciplinary action 

to be taken against him, respondent points to the fact that Mr. Cooley 

was on probation at the time be "made such a spectacle" on May 2, 1980, 

that mine management could no longer countenance his presence. 

Respondent maintains that there was absolutely no evidence produced 

at the hearing to indicate that the manner of lighting the No. 6 dryer 

was in fact unsafe, and that Mr. Cooley's co-workers Kenneth Smock, James Phelps, 

and Willard Stubblebine attested to the safety of the procedure used for 

1038 
lighting the dryer with a burning piece of paper. Respondent asserts 

that Mr. Cooley concocted the alleged incident of the singed knuckles, and 

that his excuse concerning the unsafe method of lighting the dryer was 

an afterthought also concocted after conferring with his union representative. 

Respondent asserts that other than Mr. Cooley's self-serving 

assertion, there is no evidence that he ever complained to anyone about 

the alleged safety hazard involved in lighting the dryer, that Mr. Cooley 

had often lit the dryer by means of burning paper in the past without 

incident, and that his refusal to perform the task assigned to him on 

May 2, 1980, for alleged reasons of safety was unreasonable and has no 

basis in fact. Respondent concludes that Mr. Cooley's lack of good faith 

concerning his purported fear of lighting the dryer with a burning piece 

of paper is demonstrated "by the vile manner in which he treated his 

supervisor and co-workers at the time of his discharge." 

MSHA's arguments 

In its posthearing brief filed in this case, MSHA argues that the 

right of a miner to refuse work under conditions which he reasonably 

and in good faith believes are hazardous has been affirmed and refined 

by the recent Commission decision in Michael J. Dunmire and James Estle 

v. Northern Coal Company, Docket No. WEST 80-313, 367-D (February 8, 1982) 

which interprets Pasula v. Consolidated Coal Co., 2 FMSHRC 2786 (1980) 

rev'd on other grounds sub nom. Consolidated Coal Co. v. Marshall, 663 

F.2d 1211 (3rd Cir. 1981). MSHA asserts that under the Dunmire holding, 

refusal to work is in good faith when the miner has attempted to communicate 

his reasons for refusing to work to some representative of the mine at 

or near the time of his refusal. Further, MSHA argues that a miner's belief 

in the existence of a dangerous condition is reasonable if it is a belief 

that a reasonable man confronted with those conditions could draw; however, 

it need not be the only belief that a reasonable man could draw from 

those conditions. Moreover, MSHA states that Dunmire reaffirms the 

Commission's earlier determination in Robinette v. United Castle Coal Co., 

3 FMSHRC 803, 809 (1981) that: 

Because this (the general policy of anti-retaliation) 

is a major concern of the Mine Act, it requires proof 

merely that the miner reasonably believed that he confronted a threat to his safety or health. Those who 

honestly believe that they are encountering a danger 

to their health are thereby assured protection from 

retaliation by the employer even if the evidence ultimately 

shows that the conditions were not as hazardous as 

believed. 

MSHA argues that it is not essential that the condition which the 

miner fears be actually hazardous, but only that his belief in the existence 

1039 
of a hazard be reasonable. After detailing the facts and circumstances 

concerning the manner in which Mr. Cooley was required and directed to 

light the dryer in question, MSHA concludes that Mr. Cooley's refusal 

to perform this task was based on his reasonable and good faith 

belief that it was unsafe. 

In response to respondent 1 s assertion that even though Mr. Cooley 

may have refused to light the dryer pilot for safety reasons, he would 

have been fired anyway because of his past disciplinary record and his 

abusive language to his supervisor Dave Chalmers, MSHA states that the 

respondent must establish this affirmative defense. In this regard, MSHA 

argues that the respondent has the burden of proving first, that John Cooley's 

use of profanity in his work refusal is not protected activity under 

the Act, and second, that had John Cooley never refused to light the 

dryer pilot with a hand held flame, Ottawa Silica would still have fired 

him for his use of profanity alone. Pasula v. Consolidated Coal Co. 

2 FMSHRC 2786, 2800 (1980) rev 1 d on other grounds sub nom. Consolidated 

Coal Co, v, Marshall, 663 F.2d 1211 (4th Cir. 1981), MSHA maintains that the 

respondent has failed to carry its burden on either of these points. 

MSHA maintains that Mr. Cooley's profanity in communicating his 

refusal to work is protected activity under the Act. In support of 

this conclusion MSHA argues that Mr. Cooley is a poorly educated and 

unskilled miner and that he became upset after repeatedly being ordered 

to perform an unsafe act. Taken in this context, MSHA asserts that 

in as much as the profane language was used to communicate the refusal 

to work, it is part of the protected refusal to work itself. Further, 

MSHA maintains that the respondent has not met its burden of proving 

that it would have terminated Mr. Cooley for using abusive language 

alone, and points to the fact that the respondent could not identify any 

prior incident where it terminated an employee for using profanity. 

MSHA also argues that Mr. Cooley and Mr. Smock both testified that the 

profanity was directed at the unsafe act rather than at foreman Chalmers 

personally. As for Mr. Chalmers, MSHA makes reference to the record 

which reflects that Mr. Chalmers lacked sensitivity to safety hazards, 

that he performed several dangerous acts on the job, and that he was 

discharged by the respondent for reporting to work twice while intoxicated. 

Findings and Conclusions 

As indicated earlier, the critical issue in this case is whether 

Mr. Cooley's refusal to perform a job task which he believed to be unsafe, 

and which led to his discharge, was protected activity under the Act. 

Mr. Cooley claims he was ordere.d off the mine property by his supervisor 

after he refused. to assist in the lighting of the No. 6 Dryer with a 

buring piece of paper and that he was subsequently discharged because 

of this incident. On the other hand, respondent maintains that Mr. Cooley 

was discharged because he failed to carry out a work assignment and used 

"foul and abusive" language when speaking with his supervisor about the 

incident. According to the testimony of Mr. Bentgen, the man who discharged 

1040 
Mr. Cooley, mine management viewed the work refusal and· the use of foul 

and abusive language as acts of insubordination. In addition, management 

also took into consideration the fact that Mr. Cooley had previously been 

disciplined for insubordination and work refusals (apparently unrelated 

to safety), and that he was on probation at the time of the work refusal 

which prompted his discharge. Under the circumstances, and in light of 

the precedent discrimination cases discussed above, it is necessary to 

explore the following issues raised in these proceedings: 

1. Whether the lighting of the dryer in question with a 

burning piece of paper was an unsafe practice. 

2. Whether Mr. Cooley made any statements to management 

concerning a safety complaint connected with the lighting 

of the dryer with a burning piece of paper. 

3. Whether Mr. Cooley's safety concern connected with 

the lighting of the dryer with a burning piece of paper 

was made in good faith. 

4. Whether Mr. Cooley 1 s refusal to light the dryer with a 

burning piece of paper was reasonable, and if so, whether 

the work refusal is protected.activity under the act. 

5. Whether respondent has carried its burden of showing that 

Mr. Cooley's discharge was motivated by unprotected 

activities and that he would have been discharged for 

those activities alone. 

Lighting the No. 6 Dryer with a burning piece of paper. 

One critical issue presented in this case is whether or not the practice 

of lighting the dryer pilot light in question with a burning piece of paper 

was an unsafe practice. The record in this case reflects that there is a "right" 

and "wrong" way to initiate pilot for the dryer in question. The "right" 

way is by means o-f pushing certain buttons on a control panel which is located 

some fifteen or so feet from the area where the dryer pilot light is 

located. The testimony and evidence adduced in this case amply supports 

a conclusion that the "right" way to light the pilot in question is by 

the mechanical means of buttons located at the control panel, and that 

the lighting of the pilot by means of burning pieces of paper either 

stuffed into the pilot location or attached to an end of a wire and then 

inserted into the pilot light area is the "wrong" way to light it. 

Although neither party called any expert witnesses to testify as 

to the engineering and mechanical operational parameters of the dryer 

in question, I conclude and find that the testimony and evidence adduced 

in this case supports the conclusion that the pilot light was never 

intended to be initiated or lit by means of a burning piece of paper, 

1041 
and that this practice was unsafe. Aside from Mr. Cooley's opinion that 

the lighting of the dryer pilot with a burning piece of -paper is "dangerous 

and stupid", dryer operator James Phelps testified that the use· of 

burning paper was not the "right" or "safe" method for lighting the dryer, 

and former dryer operator Kenneth Stumpmiertestified that it was unsafe 

to light it in that manner. 

Company Safety Director Hilliard Bentgen conceded that the 11preferable 11 

method for lighting the dryer is by means of the control' panel and not 

a burning piece of paper. Although he testified that he did not personally 

believe it was unsafe to light the dryer by means of burning paper, the 

fact is that after MSHA 1 s investigation of Mr. Cooley's discharge Mr. Bentgen 

issued a memorandum prohibiting such a practice. Although Mr. Bentgen 

indicated that he was not an expert and was unclear as to whether such 

practices of lighting the dryer with burning paper was unsafe, he candidly 

conceded that he had his doubts and was aware of the fact that employees 

were in fact lighting it with burning paper, It seems to me that as 

safety director, Mr. Bentgen should have sought expert advice to resolve 

the question as to whether the lighting of the dryer with burning paper was 

safe or unsafe. A telephone call to .the Manufacturer or references to 

the dryer operational manual would probably have answered this question. I 

simply cannot accept self-serving assurances that it was safe, nor can I 

accept the excuse or inference that persons unknown were removing a shield 

that had been fabricated to prevent the pilot flame from going out, 

particularly where the record shows that an identical No. 5 Dryer was 

experiencing no such difficulties. 

Although company electrician Willard Stubblebine testified that he 

would not be reluctant to light the dryer with a burning piece of paper, 

he candidly conceded that he would have to respect Mr. Cooley's refusal 

to light it in that fashion if he thought it were unsafe. Mr. Stubblebine 

also candidly admitted that it was common practice for a person to climb 

over a protective railing adjacent to the dryer and stand on an I-beam 

so as to be closer to the pilot light area while attempting to light it. 

He also described an eyewitness account of a foreman's attempt to light 

the dryer with material wrapped around a wire hangar as t.he "worst way" 

to light it. 

In addition to the testimony of the witnesses as to whether they 

believed the lighting of the dryer with a burning piece of paper was safe 

or unsafe, there are other factors present in this case which support 

the conclusion that it was unsafe. First there is the question of the .so 

called "purge cycle". Although there is conflicting evidence and uncertainty 

as to whether the dryer purge cycle was in fact "jumped" or "shorted" out, 

I believe it is clear from the record that the purge cycle is a mechanical 

safety measure engineered into the dryer lighting sequence to prevent against 

the build-up of gasses. Although Mr. Bentgen conceded that he was no 

expert, he alluded to the fact that an inoperative purge could cause problems 

and present possible explosion hazards (Tr. 136-137), and he conceded 

that the notation which appears on the dryer operator's job description 

(Exhibit G-2) that the "Purge is jumped out on No. 6, will be repaired" 

would lead one to believe that the purge cycle was inoperative. 

1042 
Mr. Stubblebine indicated that problems can be encountered when an 

inoperative purge cycle causes repeated efforts to initiate pilot. 

Although he was not certain as to the dryer, he did state that repeated 

unsuccessful attempts to initiate the pilot light of a blast furnace 

could cause explosive build-ups of gas that would probably be dispersed 

near the dryer because it is an open area (Tr. 279). Dryer operator 

Kenneth Smock testified that he was aware the purge cycle was ujumped out", 

and that a burned out wire caused by paper being inserted near the pilot 

light ignition point, coupled with sand and wate~ made it difficult to light 

the pilot, and that he had reported the condition on his daily inspection 

report. 

Although Mr. Cooley also indicated that he believed the manual lighting 

of the dryer also exposed him to a hazard of possibly slipping or falling 

on the floor or over a protective railing which was adjacent to and near 

the location of the pilot light because of the presence of water and sand 

which made the area slippery, I am convinced that his principal concern 

centers over the fact that he was directed and required to use a burning piece 

of paper in attempting to light the dryer pilot light and my decision 

regarding his complaint is based on t.his fact. Having visited the plant 

site in the company of counsel for both parties during the course of 

the trial in this case, it would appear to me that the nature of respondent's 

silica sand drying operation is such that water, moisture, sand and dampness 

is an ever present fact of life, and absent any evidence that respondent 

violated any mandatory safety standard dealing with the clean-up or control 

of such materials I have no basis for finding that the mere presence of 

such materials presented a hazard. 

As for the positioning of the guardrail in question, since the 

time of Mr. Cooley's discharge modifications have been made to the positioning 

of that guardrail, and aside from any evidence of anyone climbing over it 

to reach the pilot, I cannot specifically conclude that the guardrail is 

all that critical to my decision. However, it seems clear to me that 

at the time of Mr. Cooley's discharge, requiring an employee to manually 

light the dryer by means other than the automatic control system and panel 

procedures could have possibly exposed an employee to any number of situations 

which may or may not have been hazardous, and I am convinced that the 

company's policy prohibiting the manual lighting of the dryer reflects 

in part some of these concerns. 

Statement of a safety complaint 

Respondent argues that only after Mr. Cooley was ordered off the 

property on Friday, May 2, 1980, by Mr. Chalmers did he assert that his 

work refusal was based on a perceived safety hazard. However, the record 

adduced in this case reflects that Mr. Cooley had previously complained 

about the hazards of lighting the dryer with burning paper. As a matter 

of fact, the record supports a conclusion that the practice of lighting 

the dryer with a burning piece of paper was well known to everyone at the 

plant, including mine management. 

1043 
Mr. Cooley testified that he had previously complained that the lighting 

of the dryer with burning paper was unsafe and that he complained to 

Mr. Chalmers, Mr. Phelps, Mr. Smock, and to another dryer operator by the 

name of Sam Watson. Mr. Smock confirmed that Mr. Cooley had often 

expressed his displeasure over lighting the dryer with burning paper, but 

he could not recall Mr. Cooley specifically stating that he was concerned 

about the safety of that procedure and he did not inquire further as to 

Mr. Cooley's reluctance to perform that task. However, he confirmed that 

when he overheard Mr. Cooley speaking with Mr. Chalmers over the telephone 

on Friday, May 2, 1980, his refusal to light the dryer "could have been 

because he thought it was unsafe'', and that later that day Mr, Cooley did 

tell him that he felt it was unsafe. 

Dryer Operator Phelps, the man assigned to train Mr. Cooley during 

his last week of employment, testified that Mr. Cooley complained to him 

during that time that lighting the dryer manually with burning paper was 

unsafe. Mr. Phelps also confirmed that the automatic mechanism for lighting 

the dryer was inoperative during the week of Mr. Cooley's training, and 

as a result, it took two men to light it, One man would stand at the control 

panel and the other would stand at the pilot light location with a burning 

piece of paper. He also confirmed that he had reported the inoperative 

automatic lighting mechanism to Mr. Chalmers, noted the conditions in 

his inspection reports, and that the lighting of the dryer with burning 

paper was the subject of general conversation among the employees and that 

company foremen and management knew about it. 

Electrician Stubblebine confirmed that operators would complain about 

lighting the dryer with burning paper, and while they did not complain 

directly to him, it came to his attention more or less through lunchroom 

conversations. However, since he did not speak to Mr. Cooley, Mr. Cooley never 

complained to him. 

There is nothing in the record to suggest that Mr. Cooley had ever 

complained to MSHA about the practice of lighting the dryer with burning 

paper, and Inspector Spencer testified that absent a finding that the dryer 

was "defective equipment" there is no specific safety standard covering 

this practice. Mr. Bentgen testified that Mr. Cooley had never previously 

complained to him about his being required to light the dryer with burning 

paper, and Mr. Bentgen stated further that during Mr. Cooley's subsequent 

grievance Mr. Chalmers informed him that Mr. Cooley has never complained 

to him that lighting the dryer with burning paper was unsafe. However, 

Mr. Bentgen confirmed that when he met with Mr. Cooley and his safety 

representative on Monday, May 5, 1980, Mr. Cooley informed him at that 

time that his work refusal was based on his safety concerns and it seems 

clear to me that Mr. Bentgen knew this before he made the decision to fire 

Mr. Cooley that same afternoon. 

In view of th.e foregoing, I conclude and find that the record supports 

a conclusion that Mr. Cooley communicated his belief about the safety hazard 

presented to his supervisor Phelps during the week of his training prior 

to his discharge, and that he also communicated it to safety director 

1044 
Bentgen prior to his decision to discharge Mr. Cooley. Coupled with the 

fact that the practice of lighting the dryer with burning paper appears to 

have been general knowledge among the dryer operators and dryer laborers, 

there is a strong inference that Mr. Cooley also communicated his safety 

concerns directly to Mr. Chalmers, and that Mr. Chalmers chose to ignore 

them. In short, I conclude and find that the communications made by 

Mr. Cooley regarding his safety concern falls within the test enunciated 

by the Commission in the Dunmire and Estle case discussed above. 

The reasonableness of Mr. Cooley's work refusal 

Having concluded that the practice of lighting the dryer pilot light 

in question with a burning piece of paper was an unsafe practice, the 

next question presented is whether Mr. Cooley 1 s belief that it was unsafe 

was reasonable, and whether his reluctance or refusal to follow this 

practice was made in good faith. 

Mr. Cooley has a limited education, and after viewing him on the stand 

during the course of the hearing he impressed me as being candid and 

straightforward. Although his prior work record and differences with his 

supervisors, as reflected by the record and the testimony of several 

witnesses, lead me to conclude that he may be short tempered and lacking in 

self-restraint when dealing with co-workers and supervisors, he nonetheless 

impressed me as being sincere when he testified that he was frightened by 

the prospect of being required to light the dryer pilot light with burning 

paper and that his fears were heightened even more when he singed the hair 

of his fingers as the result of a "flash-back" from an unsuccessful 

attempt to initiate pilot with a burning piece of paper. 

In addition to Mr. Cooley's testimony, electrician Stubblebine, 

who testified that he had no dealings with him, nonetheless respected 

his right to refuse to light the pilot with burning paper if he believed 

it was unsafe. As a matter of fact, Mr. Stubblebine commented that if 

he thought it was unsafe he too would refuse to light it in that fashion 

and that if the company disciplined him for this he would file a complaint 

as did Mr. Cooley. 

Although dryer operator Smock expressed no fear at lighting the dryer 

with burning paper and fashioned his own "one-man operation" procedure 

for doing this, he confirmed that Mr. Cooley did not know much about the 

dryer operation and was not as experieinced as he was. Given these 

circumstances, Mr. Smock did not find Mr. Cooley's reluctance to light the 

dryer with burning paper to be unusual. Dryer operator Phelps gave similar 

testimony, and former operator Stumpmier testified that he too would 

refuse to light the dryer with burning paper because he believed it was an 

unsafe practice and so informed sa~ety director Bentgen. He also confirmed 

the fact that approximately a month after Mr. Cooley's discharge Mr. Bentgen 

issued a memorandum stating that anyone caught lighting the dryer with a 

burning piece of paper would be subject to company disciplinary action, 

including discharge, and the record reflects that this policy is still in 

effect. 

1045 
Finally, although Mr. Cooley's former supervisor and foreman David 

Chalmers did not testify in this case, the record presented raises a strong 

inference that he was lacking somewhat in his appreciation for safe work 

practices. Mr. Cooley referred to several instances where Mr. Chalmers 

would perform dangerous acts, Mr. Smock confirmed that he personally 

observed Mr. Chalmers light the dryer with a burning piece of paper, and 

Mr. Stumpmier testified that Mr. Chalmers had little regard for safety and 

that when he attempted to discuss Mr. Cooley's refusal to light the dryer 

after he was ordered off the property, Mr. Chalmers would not speak with 

him. 

Although Mr. Chalmers had ordered Mr. Cooley off the property after 

his refusal to light the dryer, Mr. Bentgen confirmed that Mr. Chalmers 

had no authority to discharge Mr. Cooley and that Mr. Bentgen discharged 

him after speaking with Mr. Chalmers. Mr. also stated that his 

investigation confirmed that foremen made it a practice to instruct employees 

to assist in the lighting of the dryer with burning paper, that they themselves had engaged in this practice, and that Mr. Chalmers told him that 

he had instructed Mr. Cooley to assist in the lighting of the dryer and 

assumed that he would do so by holdiTug the burning piece of paper. Mr. Bentgen 

also confirmed that Mr. Chalmers was subsequently fired for poor work 

performance and for reporting to work on two occasions while intoxicated, 

Given all of the aforementioned circumstances, I conclude and find 

that Mr. Cooley had a good faith reasonable belief that the lighting of 

the dryer in question by means of a burning piece of paper presented a 

dangerous safety hazard which may have exposed him to injury, and that his 

good faith belief in this regard falls squarely within the test laid down 

by the Commission in MSHA ex rel Michael Dunmire and James Estle v. 

Northern Coal Company, WEST 80-313-D and WEST 80-367-D, decided February 5, 1982. 

By refusing to light the dryer as directed by his supervisor, Mr. Cooley 

eliminated any hazard to which he may have been exposed had he carried 

out the order, and, as stated by the Commission in Dunmire and Estle, supra, 

"avoidance of injury is the very reason the right to refuse work exists". 

Whether respondent would have fired Mr. Cooley anyway for use of profanity. 

Respondent maintains that Mr. Cooley was discharged because of his 

"bizarre" behavior and the use of "reprehensible and vile" language towards 

his supervisor·Dave Chalmers. In addition, respondent asserts that Mr. Cooley 

treated his supervisor and co-workers in a "vile manner" at the time of 

his discharge, and that the record offers ample evidence that this behavior 

warranted his discharge. 

The only specific conduct of record in this case deals with a telephone 

conversation which Mr. Cooley had with his supervisor David Chalmers. During 

that conversation, Mr. Cooley purportedly used profanity and made certain 

utterances which obviously prompted his being initially sent home by 

Mr. Chalmers and then being discharged by Mr. Bentgen the following week, 

1046 
However, there is nothing of record here that suggests that Mr. Cooley 

directed his remarks to his "co-workers". Further, the _only witness 

to the one-sided telephone conversation was Mr. Smock. He testified 

that the telephone conversation lasted only a few minutes, and that the 

use of profanity by Mr. Cooley stennned from his reluctance to light the 

dryer pilot light. Since Mr. Chalmers did not testify, and since no 

one but Mr. Cooley knows what Mr. Chalmers may have told him during that 

phone conversation, I have no way of knowing whether Mr. Chalmers' may 

have also said something to further provoke Mr. Cooley. 

Respondent's conclusions that Mr. Cooley used "vile", "foul", and 

uabusive" language obviously is based on what Mr. Chalmers may have told 

Mr. Bentgen. There is no evidence or testimony that Mr. Cooley used 

this sort of language towards Mr. Bentgen or any other company official, 

and Mr. Cooley, as well as Mr. Smock, indicated that the cursing was 

directed at the method of lighting the dryer rather than at Mr. Chalmers 

personally. Considering the circumstances under which Mr. Chalmers 

left his employment with the respondent, and absent his testimony, there 

is a strong inference that Mr. Chalmers may not have been too enchanted 

with Mr. Cooley as an employee and m~y have said something to provoke 

Mr, Cooley's outburst. 

After careful consideration of the record adduced here, I conclude 

and find that the use of profanity by Mr.·Cooley during the telephone 

conversation in question was the direct result of his being required 

to light the dryer with a burning piece of paper, an act which I have 

found Mr. Cooley reasonably believed was unsafe. In these circumstances, 

I agree with MSHA's assertion that the use of profanity .by Mr. Cooley 

was part of the protected work refusal itself, and I conclude and find 

that this was the case at the times the words were spoken on May 2, 1980. 

While it may be true that Mr. Cooley may have bid off the job of dryer 

operator and decided not to pursue that job at the conclusion of his week of 

training, the fact is that what prompted his discharge was his refusal 

t~ assist in the lighting of the dryer with a burning piece of paper, a 

task that had been assigned to him on May 2, 1980, by his foreman. The 

purported basis for Mr. Cooley's discharge was his refusal to follow his 

supervisor's order to light the dryer with a burning piece of paper, 

the use of foul language towards this same supervisor over this work refusal, 

and Mr. Cooley's past disciplinary record with the respondent. Mr. Bentgen 

testified that he considered the use of foul language and the refusal 

to perform the assigned task to be acts of insubordination and that 

Mr. Cooley would have been fired anyway even if he had carried out the 

instructions to light the dryer. Mr. Bentgen reasoned that since Mr. Cooley 

had a prior record of work refusal and insubordination, and since he 

was on probation for these prior offenses at the time of the dryer incident, 

his discharge was justified, However, since I have concluded that the refusal 

to perform the assigned job task and the use of profanity were protected 

activities, they do not constitute acts of insubordination warranting a 

discharge under the Act. This being the case, Mr. Cooley's prior work 

record is not controlling. 

1047 
Respondent has not established that Mr. Cooley had.ever been 

disciplined for using profanity, nor has it established that it ·has 

ever disciplined other employees for using profanity on the job. Since 

Mr. Bentgen had the final authority to discharge or otherwise discipline 

Mr. Cooley for the May 2, 1980 incident concerning the dryer, he had the 

opportunity to consider Mr. Cooley's reasons for to light the 

dryer before making the decision to discharge him. Mr, B~ntgen candidly 

conceded that prior to the decision to discharge Mr. he was made 

aware of the method of lighting the dryer by means of burning paper, 

yet he opted to discharge him for insubordination and his past record. 

Further, while it may be true that Mr. Cooley's grievance and arbitration 

(exhibit R-4) was denied and his discharge sustained, that decision is 

not binding on me, and since the arbitration decision contains no rationale 

or reasons explaining it, I have given it no weight. The critical 

question is whether the preponderance of the evidence adduced in the 

instant proceeding supports a conclusion that the respondent would have 

discharged Mr, Cooley in any event by reason of any unprotected activities 

alone, After careful review of the record, I conclude and find that the 

testimony and evidence adduced in this case does not support a conclusion 

that the respondent would have fired.Mr, Cooley for the manner in which 

he communicated his work refusal to his supervisor. This is not to say 

that as a general rule an employer may never fire a miner for abusive 

language and conduct towards a supervisor. By the same token, a miner 

may not insulate himself against such conduct by hiding behind the Act. 

However, on the facts of this case, where there is a direct nexus between 

the conduct and a right protected under the Act, I simply cannot conclude 

that the discharge was justified. 

Conclusion 

On the basis of the foregoing findings and conclusions, including 

a preponderance of all of the credible evidence and testimony of record 

in this proceeding, I conclude and find that complainant John Cooley was 

unlawfully discriminated against and discharged by the respondent for 

engaging in activity protected under section 105(c) of the Act, and the 

complaint of discrimination IS SUSTAINED. 

Remedies 

In an Order I issued on February 26, 1982, extending the time for 

the filing of posthearing briefs and proposed findings and conclusions, I 

requested that the parties include as part of their posthearing briefs 

arguments concerning the remedies to be afforded Mr. Cooley in the event he 

prevailed in this matter. MSHA has included such proposed remedies as part 

of its posthearing submissions, but the respondent has not. Since the record 

reflects that MSHA filed its brief with me a month or so prior to the 

respondent, and served a copy on the respondent, I assume that respondent's 

counsel had an opportunity to review the proposed remedies. Since respondent 

has not commented on it, I assume further that it does not disagree with 

1048 
the monetary information concerning back-pay, fringe benefits, etc., 

which MSHA has included as part of its argument. Further, I take note 

of the fact that Industrial Relations Director Bentgen testified as to 

the contractual pay and fringe benefit matters found in the wage agreement 

during the hearing and indicated that the contract is effective through 

November 12, 1982 (Tr. 111-112). 

MSHA seeks Mr. Cooley's reinstatement to the position of dryer 

operator with and all the prerequisites of , back 

to the day of discharge, as well as back pay from the date of discharge, 

May 5, 1980, until reinstatement. MSHA asserts that Mr. 's back 

pay can be calculated from the contract between the Ottawa Silica Company 

and the Teamster's Union (Exhibit G-4). Moreover, MSHA relies on the 

testimony at trial that the monetary value of the fringe benefit package 

under the contract is considered to be 52% of the base wage (Tr. 112), 

and includes the amount of back wages and fringe benefits which have 

accrued through March 30, 1982 as part of the requested remedy in this 

case. The requested remedies, up to the dates shown, are as follows: 

Time Period Hours/Wk Basic 52% of Basic Total 

---

5/5/80-11/9/80 $ 7.26 hr. 40 $ 8,421. 60 $ 4,374.23 $12,800.83 

11/10/80-

11/9/81 $ 7.96 hr. 40 $16,556.80 $ 8,604.53 $25,166.33 

11/10/81-

3/30/82 $ 8.66 hr. 40 $ 62928.00 $ 32602.56 $102530.56 

Totals $31,906.40 $16,591. 32 $48, 497. 72 

Civil Eenalty assessment guestion 

The parties were permitted to make a record concerning those statutory 

factors found in section llO(i) of the Act dealing with the assessment 

of civil penalties for violations of the Act and the mandatory health 

and safety standards promulgated therein (Tr. 8-9), and MSHA's solicitor 

has included some arguments in support of its request for an assessment 

of civil penalties against the respondent for discriminating against 

Mr. Cooley. However, included in those arguments are new matters 

with an alleged "knowing violation" by respondent's foreman, arguments 

concerning respondent's prior assessments history for certain violations 

of mandatory safety or health standards, and arguments concerning the 

effect of any civil penalty on respondent's ability to remain in business. 

While it is true that I invited the parties to make such a record 

in this case, on reflection, and in light of the new matters pleaded, I 

decline to assess any civil penalty against the respondent at this tiroP 

1049 
However, MSHA is free to proceed in a separate civil penalty proceeding 

if it believes that this is appropriate. Since the Act, as well as 

the Commission's rules,provide specific steps to be taken in regard to 

civil penalty proceedings, I believe that it should proceed in a separate 

proceeding if it desires to seek a civil penalty for respondent's act of 

discrimination. MSHA's request for an assessment of a civil penalty 

in this case is DENIED, without prejudice to its filing a separate 

proceeding. 

ORDER 

1. Respondent IS ORDERED to reinstate Mr. Cooley to his former 

or equivalent position at the mine in question, with all of his seniority 

rights intact back to the date of his discharge, at the current prevailing 

wage and fringes pursuant to the contract between the respondent and 

the union (exhibit G-4). 

2. Respondent IS ORDERED to pay to Mr. Cooley all back pay, including 

fringe benefits, from the date of his discharge to and including the time 

periods and in the amounts shown on MSHA's schedule of remedies ($48,497.72) 

3. In addition to the back pay and fringe benefits shown in MSHA's 

schedule of remedies, respondent IS ORDERED to pay Mr. Cooley back pay and 

fringe benefits from March 30, 1982, up to and including the day he is 

reinstated to his job in compliance with this Order. In this regard, 

MSHA's counsel is directed to confer with respondent's counsel for the 

purpose of calculating the amounts due Mr. Cooley and to insure compliance 

with this additional back-pay and fringe benefits payment requirement. 

Full compliance with this Order is to be made within thirty (30) days 

of the date of this decision. 

""""'/e"~e ~ A. Koutras ~~25:.:;;; Administrative Law Judge 

Distribution: 

David F. Wightman, Esq., U.S. Department of Labor, Office of the Solicitor, 

231 W. Lafayette St., Rm. 657, Detroit, MI 48226 (Certified Mail) 

Frank X. Fortescue, Esq., Welday, Klyman, Fortescue, Burau & McGlynn, 

200 Northland Towers East, Southfield, MI 48075 (Certified Mail) 

1050 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

S.A.M. COAL CO. INC., 

Respondent 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil Penalty Proceeding 

Docket No. SE 81-21 

A.O. No. 40-01148-03009 F 

No. 1 Tennessee Strip 

DECISION 

Appearances: Thomas A. Grooms, Attorney, U.S. Department of Labor, 

Nashville, Tennessee, for the petitioner; Daniel J. Tribell" 

Esquire, Middlesboro, Kentucky, for the respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns proposals for assessment of civil penalties 

filed by the petitioner against the respondent pursuant to section llO(a) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(a), 

charging the respondent with two alleged violations of certain mandatory 

safety standards found in Part 77, Title 30, Code of Federal Regulations. 

Respondent filed a timely answer and notice of contest and a hearing was 

convened at Knoxville, Tennessee on February 2, 1982. 

Issues 

The principal issues presented in this proceeding are: (1) whether 

respondent has violated the provisions of the Act and implementing regulations 

as alleged in the proposal for assessment of civil penalties filed in 

this proceeding, and, if so, (2) the appropriate civil penalty that 

should be assessed against the respondent for the alleged violations based 

upon the criteria set forth in section llO(i) of the Act. Additional 

issues raised by the parties are identified and disposed of in the course 

of this decision. 

In determining the amount of a civil penalty assessment, section 

llO(i) of the Act requires consideration of the following criteria: (1) 

the operator's history of previous violations, (2) the appropriateness 

of such penalty to the size of the business of the operator, (3) whether 

1051 
the operator was negligent, (4) the effect on the operator's ability to 

continue in business, (5) the gravity of the violation, and (6) the 

demonstrated good faith of the operator in attempting to achieve rapid 

compliance after notification of the violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164, 

30 u.s.c. § 801 ~~· 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 CFR 2700.1 ~~· 

Discussion 

The conditions or practices allegedly constituting violations of 

the mandatory safety standards cited by the inspector in this case are 

set out in the following citations (Exhibits P-2 and P-3): 

Section 107{a) citation 0736755, August 6, 1980, cites a violation of 

30 CFR 77.1001, and the condition or practice is described as 

follows: 

Loose unconsolidated material (rock) is present along 

the highwall. The wall is approximately 250 feet long 

and 50 feet high. Observed in the No. 1 pit during a 

fatal accident investigation. 

Section 104(a) citation 0736757, August 6, 1980, cites a violation of 

30 CFR 77.1713, and the condition or practice is described as 

follows: 

Evidence indicated that inadequate onshift examinations 

were being made. The highwall on each end of the accident 

scene was obviously hazardous and the conditions were not 

recorded in the record book. 

The inspector modified the citation on August 12, 1980, to include the. 

following condition: 

The person making the on-shift examination and filling 

out the record book was not certified in the State of 

Tennessee. 

Stipulations 

The parties stipulated that respondent is subject to the Act, that any 

penalty assessed will not adversely affect its ability to remain in business, 

and that respondent's prior history of violations consists of five 

citations as listed in an MSHA computer print-out (Exhibit P-1; Tr. 4). 

1052 
Testimony and evidence adduced by the petitioner 

MSHA Inspector Lawrence Spurlock testified that he has some 26 years 

experience in the coal mining industry and has served as an MSHA inspector 

for eleven years. His experience includes the inspection of surface mines 

and the investigation of accidents involving high walls. He confirmed 

that he conducted an accident investigation at the subject mine in August 1980, 

and did so after the respondent advised MSHA that a fatal accident had 

occurred at the mine. He also confirmed that as a result of that investigation 

he issued the two citations which are the subject of this proceeding. He 

issued the section 107(a) withdrawal order because loose unconsolidated 

material was still present after the accident occurred (exhibit P-2; 

Tr. 7-12). He also prepared an accident report and a copy was served 

on the respondent (exhibit P-4). He indicated that the accident occurred 

on August 5, 1980, and he identified several photographs which were taken 

at the time (exhibits P-5 through P-21; Tr. 12-31). 

Mr. Spurlock testified that the accident victim was killed when 

part of the high wall collapsed on him and his drill rig while he was 

working under it drilling boreholes into the ground to facilitate the 

construction of a drainage ditch, and he identified the scene of the 

accident as depicted inrbotographic exhibits P-6 through P-10, and he 

estimated the width of the part of the wall which collapsed as 25 to 30 

feet wide, and that the weight of the rock material which fell as approximately 

100 tons (Tr. 18). With regard to the loose material which he cited 

in his order, Mr. Spurlock referred to Ji-1otographic exhibit P-7 and drew 

a red circle around the area in the photographic where he believed the 

loose material was present. He also identified similar areas of loose 

unconsolidated materials as well as areas described as "cracks" in exhibits 

P-9 and P-10 (Tr. 19-20), as well as in exhibit P-11 (Tr. 21-22). Exhibit 

P-14 depicts the area from which the rock fell and it also shows "overhanging material created after the wall collapsed" (Tr. 25). 

Mr. Spurlock testified as to several cracks which he observed along 

the top of the high wall, but he did not know what caused them. However, 

he stated that they were present in the part of the wall which was left 

standing after the collapse, and the cracks may have been caused by 

drilling or blasting (Tr. 28). He believed that the accident may have 

been caused by the vibration of the drill in the pit near the high wall, 

and he believed that the mine operator should have removed loose material 

from the wall as the pit was being developed (Tr. 35). Proper procedures 

call for removal of loose materials so that the wall is sloped "back 

toward the hill in at a proper angle of repose order to keep it from overturning on a person" (Tr. 35-36). Mr. Spurlock believed the wall was "pretty 

straight" at a 90 to 95 degree angle, and he identified a copy of the 

respondent's 11 ground control plans" as submitted to MSHA (Exhibit P-18, Tr. 40). 

The plan contains the operator's procedures for scaling high walls and 

contains a requirement that the angle of repose for the high wall be 85 

degrees or less (Tr. 41). Mr. Spurlock did not believe that the wall 

in question had been properly scaled because "there was too much loose, 

unconsolidated material still present on the wall" (Tr. 41). 

1053 
Mr. Spurlock stated that the respondent advised him during his 

investigation that the wall in question had been scaled by means of a 

power shovel. However, he determined that the shovel had not been used 

on the day of the accident and that it was parked on the spoil bank some 

3/4 of a mile from the accident scene undergoing repairs (Tr. 42). 

Further, the respondent adv him that the shovel had not been used 

for some three or four days prior to the collapse of the wall (Tr. 42). 

Mr. Spurlock testified as to the second citation which he issued 

for a violation of section 77.1713, and confirmed that he did so after 

checking the mine record books for August 5, 1980, and failing to find 

an entry for loose unconsolidated materials. Since he found such material 

present on August 6, 1980, which he believed constituted an obvious violation 

of section 77.1001, he also believed that a competent on-shift examiner 

would have discovered those conditions (exhibit P-3; Tr. 45-46). He explained 

that part of the mine is located in the State of Tennessee and part in 

Kentucky, and that the portion of the mine which he cited is located in 

Tennessee and the on-shift examiner was not certified in that state, but 

was certified in Kentucky (Tr. 46). 

On cross-examination, Mr. Spurlock testified as to certain drill holes 

found at the top of the high wall, but he did not know when they were drilled, 

nor did he know the condition of the area when they were drilled. The order 

which he issued was terminated by another inspector, possibly the day after 

it was issued, and he was not present when it was terminated. In addition, 

he was not in the pit, nor did he inspect it, prior to the day of the 

accident (Tr. 49). He was acquainted with "hill seams", which he described 

as separations which are dry and sometimes wet, and he conceded that 

it was possible that some were present in the area where the rock materials 

fell out from the wall. He also conceded that the "cracks" he observed 

were "natural" cracks (Tr. 51). 

Mr. Spurlock conceded that the loose materials which he cited the 

day after the accident were conditions that existed after the rock fall 

in question, and that the overhanging area was what was after the 

wall fell (Tr. 55). He also described in an area of unconsolidated 

material which he identified in photographic exhibits P-10, as unconsolidated 

material that had nothing to do with the collapse of the wall and was away 

from the fall area (Tr. 55-56). He had no idea as to the angle of repose 

of the area from where the rock fell prior to the fall (Tr. 57), but did 

observe "teeth" marks present on the high wall from the shovel (Tr. 57). 

As for the second violation concerning the record book entry, he conceded 

that he did not observe the area in question on the day of the accident, 

August 5, and did not know what the foreman may have observed at that time 

(Tr. 58). 

Mr. Spurlock testified that the conditions were abated by blasting 

down the remaining highwall area where the fall occurred (Tr. 69), and he 

reiterated that he had never observed the high wall area in question prior 

1054 
to the day of the accident. He also indicated that the respondent had 

never previously been cited for any similar violations,.and to his 

knowledge had no problems with controlling the high walls prior to the 

accident in question (Tr. 72). His rationale for issuing the second 

violation is stated as follows (Tr. 76): 

JUDGE KOUTRAS: But there is no question in your 

mind that Mr. Spurlock issued the second citation because 

of what I have just recited, that he believed that the 

accident resulted from an obvious hazardous condition on 

the high wall which should have been detected by the onshift Examiner. 

MR. GROOMS: I believe that that is correct, is it, 

Mr. Spurlock? 

JUDGE KOUTRAS: Is that right? 

THE WITNESS: Yes, 

Harold C. Copeland testified that he is employed by the State of 

Tennessee as a mine inspector and that is presently engaged in duties 

connected with the training of state mine inspectors. He also owned a 

strip coal mine for about a year and is familiar with high walls. He 

confirmed that he was called to the mine in question the day after the 

accident and coordinated his inspection with MSHA's inspection of the 

accident scene. He identified exhibits P-4 and P-5 as photographs of 

the scene of the accident, and also identified photographs which he took 

during the inspection (Exhibits P-14 through P-17, P-21; Tr. 77-80), 

Mr. Copeland testified that the conditions depicted in exhibit P-15 

show loose overhanging rock and major vertical cracks. The loose rock 

on top of the highwall area depicted in the photograph are hazardous, but 

he did not know about the cracks shown because "there is no way to tell 

what those cracks lead to" (Tr. 81). When asked what should have been 

done about the wall, he replied "if it was this way before there was men 

working under, it should have been scaled down and cleaned up. The loose 

rock should have been taken off of it" (Tr. 81). Referring to the cracks 

which appear in exhibit P-21, he indicated that they may have been caused 

by prior blasting, but that there was no way to know for sure (Tr. 82). 

The present cracks however, would present a danger of the rock falling, 

but he did not know if they were from the area where the original fall 

had taken place (Tr. 83). 

Mr. Copeland expressed an opinion that the fatality was caused by 

falling rock, and he conceded that the loose rock which he observed was 

present after the accident occurred. However, from his experience, he 

did not believe that the high wall which he observed the day after the 

accident would have looked any different the day before (Tr. 90). 

1055 
On cross-examination, Mr. Copeland confirmed that he did not see 

the accident area prior to the fall and had no way of knowing whether 

the cracks he described were present at that time (Tr. 95). He also 

indicated that certain drilled holes which were located 50 or 75 feet 

away from the immediate fall area and were not charged may have been due 

to faults in the rock, but he did not know when the holes were drilled 

(Tr. 97-98). 

Wayne Farmer testified that he is a field representative for the State 

of Tennessee Labor Department, but has worked in underground and surface 

strip mining since 1944. He was part of the investigation of the accident 

in question, and identified the loose unconsolidated materials shown in 

exhibits P-5, P-6, and P-14 and P-15 (Tr. 107). While he did not know 

why the wall in question fell, since it did fall, he believed that it was 

due to unconsolidated rock (Tr. 108). He agreed with Mr. Copeland's 

conclusions as to why the wall fell (Tr. 109). 

On cross-examination, Mr. Farmer conceded that he saw none of the 

rock prior to the fall, did not know when any of the holes in question 

were drilled, and did not know how much of the rock fall may have changed 

the adjacent area after the fall because "I wasn't there" (Tr. 109). He 

also conceded that it was possible for the mine foreman to inspect the 

wall immediately before the fall and come to the conclusion that it appeared 

all right to him, but not to him (Farmer) when he looked at it (Tr. 117). 

Testimony and evidence adduced by the respondent 

Charles Woodall testified that he has been employed by the respondent 

for about a year and half, and has worked around strip mines for about 

34 years. He stated that he is ashovel operator and on the day of the 

accident was working in the pit during the second shift from 3:00 to 11:00 

p.m. He described the procedure for stripping the pit and stated that 

he scaled the high wall in question by taking "everything down that is 

loose that you can pull down as you go" (Tr. 128). All loose materials 

are taken down with the shovel and in all the years he has served as a 

shovel operator stripping pits and walls he has never had an accident and 

has "never had a machine tore up" (Tr. 129). He indicated that he scaled 

the high wall in question during his shift and thought it was safe enough 

to work in the pit. He would not have continued to work in the pit if 

he did not believe it was safe, and company policy dictates that no one 

is required to work in unsafe areas. He has always been instructed to 

inform his supervisor or foreman if he believes an area is unsafe and 

he has no fear of any reprimand for leaving an unsafe work area (Tr. 130). 

Mr. Woodall stated that the 2400 Lima Shovel which he operated was the 

only one used in the pit in question and it was not out of service on the 

day of the accident but it was taken out for repairs after the pit was 

cleaned up (Tr. 131). · 

On cross-examination, Mr. Woodall stated that the shovel may have 

been taken out of the pit the day after the accident, but that he did not 

drive it out. After examining photographic exhibits P-9 and P-10, 

1056 
Mr. Woodall stated that the wall did not look the way the pictures show 

it on the day of the accident since it did not appear in that condition 

when he left the pit area (Tr. 131-133). He indicated that all loose 

material is scaled with the shovel and any material that cannot be taken 

down by the shovel is not "loose material". He also indicated that it 

was possible that from the time he completed scaling the wall until the 

fall the rock could have been "working", but in the 34 years he has worked 

in the pits prior to the accident he has never known of anyone being struck 

by a rock falling off a high wall (Tr. 135). 

In response to bench questions, Mr. Woodall stated that he could not 

recall when he last scaled the high wall which fell prior to the accident, 

but his guess was that it would have been two days before. The wall 

is scaled with the bucket attached to the boom of the shovel, and it will 

extend some 30 to 35 feet. The walls are scaled as the is opened 

up and as the shovel moves in and out of the lifts (Tr. 135-139). He 

indicated that he did not observe the high wall in question after the 

accident, and that he was working in another area when the accident 

occurred. He did not return to the area where the accident occurred until 

a week or two later (Tr. 141). 

~--~~~-'--'-- testified that he is employed as a s mine foreman 

and while he is not presently employed by the respondent was employed 

as a shovel operator during August 1980, and he operated a shovel for 

five or six years prior to that time. He stated that he and Mr. Woodall 

operated the shovel in the pit where the accident occurred. He worked 

the day shift and stated that the high walls were scaled and cleaned as 

the pit was being stripped. He described the procedures he followed for 

scaling and stripping, and indicated that the entire high wall was scaled 

during the time he was stripping the pit. He also indicated that he took 

the shovel out of the pit during the last shift the evening before the 

accident and parked it some 500 feet away, and it was his understanding 

that it would be overhauled. In his opinion, nothing was left to be 

done in the pit when he removed the shovel and he observed no unsafe 

conditions in and about the high wall at the time the shovel was brought 

out. However, he did not return to the accident area after the fatality 

occurred (Tr. 141-145). 

Mr. Miracle stated that based on his 18 years' experience in and 

around strip mine pits, he observed nothing about the highwall in question 

at the time he last observed it when he moved the shovel out which would 

lead him to conclude that it was not safe. He had worked with the accident 

victim for some six years and considered him to be a safe worker, and 

Mr. Miracle indicated that he would not hesitate to leave a pit area if 

he believed it were unsafe. He was close to the scene of the accident 

after the wall fell and observed rock from the fall laying in the pit 

and that any overhanging rock which may have been present "wasn't hanging 

there before the fall" (Tr. 147). The pit was completely finished when 

he moved the shovel out and no additional scaling is done before the coal 

is actually hauled out (Tr. 148). 

1057 
On cross-examination, Mr. Miracle stated that the area depicted 

in photographic exhibit P-9 away from the rock fall itself resembles 

the condition of the wall when he left it. However, he believed the 

areas circled in red on the photograph which have been characterized as 

"cracks" are in fact 11 offsets 11 in the wall. He confirmed that he was at 

home when the accident occurred and that he performed no work with the 

shovel on the day of the accident. He believed that the last time he took 

the shovel out was on the Monday evening prior to the accident, but was 

not absolutely sure. He also confirmed that no scaling was done after 

the shovel was taken out of the pit (Tr. 152). 

In response to bench questions, Mr. Miracle viewed photographic 

exhibits P-7, P-10, and P-15, and stated that what appears to be overhanging 

rock is shown in exhibit P-15, but that "it may be laying back on the 

wall 15 to 20 feet" (Tr. 154). If it were small rock, the shovel boom 

could reach it since it is 67 feet high, and when extended to its full 

length it could reach a distance of 75 feet. Although he could not 

describe the highwall as shown in the pictures, he stated that he would 

not want to work under it after the accident occurred because "the fall 

must have disturbed it when it fell out 11 (Tr. 156). 

J. B. Huddleston, mine superintendent, testified that he has 17 

years of strip mining experience and has operated shovels and other 

related equipment during this time. He was the superintendent on August 5, 

1980, when the accident occurred and was a personal friend of the accident 

victim David Crawford. Mr. Woodall, and Mr. Miracle were good shovel 

operators, and Mr. Crawford had always been a competent and safe worker. 

Mr. Huddleston stated that he worked in the pit in question on the 

Saturday before the accident and the shovel was not there. He believed 

the shovel may have been moved out of the pit the previous Thursday or 

Friday. He also indicated that once the tripping is completed with the 

shovel, trucks and loaders are brought in to haul out the coal and the 

coal cleaning machine comes in and cleans up the coal. The pit and wall 

looked good to him when he worked it on Saturday and "everything looked 

solid" (Tr. 160). At the time of the accident, Mr. Crawford was drilling 

in the pit near the base of the highwall, and he did not believe that 

Mr. Crawford would have exposed himself to any hazard had there been 

any observable dangerous conditions present. Prior to the accident, no 

one had ever.been injured from any dangerous highwall situation and he 

believed the accident occurred when a hill seam in the wall slipped 

and fell off (Tr. 165-166). 

Mr. Huddleston testified that drilling and blasting near and at the 

top of the high wall had taken place prior to the accident and he described 

the procedures followed during this process. Loading operations ceased 

after the accident, but the holes which had been drilled and charged were 

shot the next day (Tr. 169). 

On cross-examination, Mr. Huddleston confirmed that the order was 

abated and terminated after the highwall in question was blasted down 

(Tr. 171). Referring to exhibit P-9, Mr. Huddleston stated that the wall 

1058 
after the accident did not look the way it did the previous Saturday. 

The exposed 11 jagged-like 11 rock and signs of hill seams shown in the photograph 

were not present prior to the accident and the wall appeared smooth and 

"there was nothing loose that you could see on it 11 (Tr. 175). 

to exhibit P-21, he could not tell whether there were "cracks" in the wall 

area shown because he did not go to that area and what appears to be cracks 

may be an open place in the ground (Tr. 179). 

In response to a question concerning the condition of the 

as stated by the inspector in his citation, and as depicted in exhibits P-7, 

P-10, and P-15, Mr. Huddleston stated as follows (Tr. 181-182): 

A. Yes, he was correct that there had been loose 

stuff on the wall because it was there. 

Q. You could see that, is that what you are 

to me now in those pictures, that you can see loose 

unconsolidated rock? 

A. Yes. 

Q. Along that high wall? 

A. Yes, it looks to be. 

* * * * * * * * * 

Q. (By Mr. Tribell) Between the time this rock 

* 

fell out, whatever the condition was created, if any, at 

that time and the next day when the Inspector came out 

there, there was nothing done, we pulled out after we got 

Mr. Crawford out; was any work performed in there? 

A. None at all. 

Q. Was the area barricaded and guarded? 

A. Barricaded and locked so that nobody wouldn't go in. 

Q. In other words, if there had been any condition 

created by this happening, we would not have attempted to 

correct it before the inspector came on the job? 

A. No, not at all. What was there was there, and it 

it was to be faced, and even if there had of been, I wouldn't 

have had anything to do about it because it was there and 

everybody could see it, you know, whatever is done is done in 

my opinion. I didn't "straighten it out" or nothing, I 

wouldn't have had it done. 

1059 
Mr. Huddleston indicated that the length of the entire highwall 

was approximately 500 feet but only the part immediately above the fall 

which had been drilled was blasted down to abate the citation. The 

entire wall was eventually taken down months later (Tr. 185-186). 

Dallas Shackelford testified that he is the former owner of the 

S.A.M. Coal Company, and since Augu:;t 1980, has served as general 

manager in charge of all coal production. He was at the mine when the 

accident occurred, and he viewed the pit and highwall the previous Thursday 

and Friday and it looked safe to him. He also observed the high wall while 

in the pit loading coal on the morning of the accident and observed no 

cracks or other dangerous conditions (Tr. 187-189). Three or four men 

and equipment were working under the highwall at any given time and he 

observed nothing that would lead him to believe they were in danger, 

The shovel was taken out of the pit for repairs, and a week before the 

accident he had discussed the need to repair the motor with the mine 

superintendent (Tr. 190), 

Mr. Shackelford testified that he arrived at the scene of the 

accident five or ten minutes after the wall fell, and after taking some 

measurements concluded that the drill rig and accident victim were 

approximately 40 feet from the base of the wall when it fell on them, He 

indicated that the portion of the wall which fell "tumbled" and "pitched" 

out approximately 50 feet. He was personally acquainted with the accident 

victim and considered him to be one of the safest employees. The company 

has had a good safety record, and no prior accidents have ever occurred 

in connection with the highwalls. All employees are directed not to work 

in unsafe areas and to consult with their boss if they encounter dangerous 

conditions (Tr. 193). 

Eddie Haley testified that he has been employed by the respondent 

as a drill foreman for about three years. He confirmed that he had drilled 

the holes depicted in the top of the highwall in question and stated that 

they were drilled before the highwall was created. He has never drilled 

such holes from a distance of 30 inches from the edge of any highwall, and 

while he observed the highwall from the top, he had never gone down into 

the pit. While at the top of the wall he never observed any loose or 

unconsolidated material, nor has he ever observed any unsafe conditions 

there. He was acquainted with the accident victim and knew him to be a 

safe worker who would never have been in the pit if he thought it was 

dangerous (Tr. 198-201). 

Joe Wyatt testified that he. is employed by the respondent as a drilling 

and blasting foreman, was so employed at the time of the accident, and he 

discovered the victim after the section of the highwall fell. Mr. Wyatt 

indicated that he had been in and around the pit area before the accident 

and the walls "looked good to me from the top side and the bottom down 

in the pit when we scuttled it with the shov'el" (Tr. 202). The only 

difference he observed in the wall after the accident was in the area 

where the rock fell out. The shovels were operating in the pit and the 

walls were stripped and scaled. He explained that some of the drill holes 

were loaded, but the shot was delayed a day because of the accident (Tr. 203). 

1060 
Mr. Wyatt testified that when the accident occurred all of the men left 

the mine site, and he disagreed that loose and unconsolidated material was 

on the highwall in question (Tr. 204). 

Robert Marcum testified that he has worked around strip mines for 

18 years and is employed by the respondent as a foreman. On the day of 

te accident he was the second shift foreman. He and the first shift 

foreman, David Ellison consulted with each other during the shift change 

and together they checked out all of the work areas. This is the normal 

practice during the shift change. They checked the pit and highwall area 

where the accident occurred and they left it ten minutes before the accident. 

They observed no conditions which they thought was dangerous, and he had 

been in the pit previous to the accident supervising the loading and cleaning 

of coal. In his opinion, the rock fall in question was caused by a hill 

seam and that loose, unconsolidated rock did not cause the rock fall of 

such magnitude. He had observed the shovel operator stripping and scaling 

the highwalls and believes that it was a good job (Tr. 209). 

On cross-examination, Mr. Marcum confirmed that he had previously 

executed an affidavit for respondent 1 s counsel which indicated that he 

had observed a hill seam in the wall with dirt and mud between sections of 

rock, and that this is what caused the rock to separate and the wall to 

fall (Tr. 211-212). He confirmed that he observed this condition on the 

day of the accident, and he also confirmed that Mr. Ellison kept his own 

shift examination books and that he (Marcum) kept his own. He did 

not know whether Mr. Elison was making his on-shift examination at the time 

he accompanied him, nor did he know about any entries that Mr. Elison may 

have made in his book (Tr. 215). 

Mr. Marcum stated that he was in the pit about five minutes making his 

inspection of the highwall and that it does not take long to drive in and 

out of the pit. He did not go to the top of the highwall because his men 

were not expected to work in that area for weeks after the accident, and 

he had no way of knowing whether. Mr.Ellison would be making his own on-shift 

examination at that time (Tr. 216). Mr. Marcum stated further that he was 

in Mr. Ellison'struck when he went to the pit to see how the accident 

victim was doing and they were there about four or five minutes, and neither 

he nor Mr. Ellisonwent to the top. He does not know whether this was 

Mr. Ellison's on-shift examination and he does not know why Mr. Ellison was 

not certified in Tennessee as a mine foreman, but that he (Marcum) is 

certified in both places (Tr. 220). 

Referring to exhibit P-9, Mr. Marcum identified an area along the 

highwall which appears to contain loose, unconsolidated material, but he 

could not state whether the fall caused that condition. He also confirmed 

that he observed the dirt and mud in the hill seam when he returned to 

the pit after the accident, and that he saw "the dirty streak right where 

the hill seam was" (Tr. 222-223). 

1061 
Findings and Conclusions 

Fact of Violations 

Citation No. 0736755, August 6, 1980, 30 CFR 77.1001 

30 CFR 77.1001 provides as follows: 

Loose hazardous material shall be 

stripped for a safe distance from the top 

of pit or highwalls, and the loose unconsolidated material shall be sloped to the 

angle of repose, or barriers, baffle boards, 

screens, or other devices be provided that 

afford equivalent protection. 

Section 77.1000, requires a mine operator to establish and follow 

a ground control plan for the safe control of all highwalls and pits, 

and section 77.1000-1, requires the filing of a copy of the plan with 

MSHA. The respondent's plan which was in effect at the time of the accident 

in question was filed with MSHA on October 16, 1979, (exhibit P-18) 

and the equipment used for the scaling of the highwall, as well as the 

means for doing this is stated as follows in the plan: 

Highwall will be brought down by the dozers and 

high lifts and scaling needing to be done will 

be done by 2400 Lima Shovel. 

In addition, the plan reflects the anticipated height of the highwall 

to be 60 feet, the maximum height as 80 feet, and the proposed angle 

of the highwall is shown as 85 degr~es or less. Further, I take note of 

the fact that the respondent is not charged with a violation of its 

ground control plan. Inspector Spurlock includes no such "finding" in 

his accident report (exhibit P-4), and petitioner does not assert any 

violation of section 77.1000. · 

During the course of the hearing, respondent's counsel argued that 

there is no evidence presented that loose, unconsolidated rock or material 

was present along the entire 250 feet of the highwall. Conceding the 

existence of loose and overhanging rock after the fall, counsel asserts 

that these conditions were the obvious result of the fall. Further, since 

the inspector only required the highwall area which remained in the 

immediate vicinity of the fall to be blasted down to abate the citation, 

respondent's counsel further suggests that even if loose rock was present 

prior to the fall, it obviously was confined to that area and not to 

the other areas testified to by the inspector during the hearing well 

after the fact. Counsel also suggests that there is a strong inference 

that the only reason the citation issued was because a fatality had 

occurred, and he emphasizes the point that the testimony and evidence 

presented by his witnesses reflects that the highwall in question was 

scaled of all loose unconsolidated rock prior to the fall and that 

inspections of the highwall revealed no obvious hazardous conditions 

(Tr. 233-235). 

1062 
Petitioner's counsel argued that the evidence he presented clearly 

established that the fall loose unconsolidated.rock material was 

left on the highwall, and that these conditions constitute a violation 

of the cited safety standard. As to the condition of the highwall prior 

to the fall, counsel concedes that there is no direct evidence that loose 

unconsolidated materials were present on the highwall. However, counsel 

asserts that there is circumstantial evidence that loose unconsolidated 

materials were present and that these conditions caused the rock fall in 

question. Counsel asserts further that it is not credible that only 

the portion of the wall which fell out was loose and unconsolidated and 

that the remaining portion away from the wall was in any better condition. 

Counsel stated that "it is only reasonable to assume that this entire 

distance here was in poor shape, and that that was the cause of the wall 

to fall out" (Tr. 237). When asked whether he meant the entire 250 feet 

of highwall, counsel responded "at least portions along that way, as you 

get closer to the rock fall, obviously you get into the question of what 

came first" (Tr. 237). 

With regard to the proposed $10,000 assessment for an alleged failure 

to scale the wall, counsel conceded that the fact that a fatality occurred 

prompted that initial assessment amount by MSHA (Tr. 237). Conceding 

that the highwall area was isolated after the fall and that no one was 

working in that area at the time the citation issued, counsel nonetheless 

supported the proposed assessment as follows (Tr. 238). 

MR. GROOMS: In some sense, you could argue 

that this was an assessment, that is, in the sense 

that assessment took these circumstances; but based 

on the Inspector saying in his Inspector's Statement 

that there was a fatality associated or related to this 

violation, now clearly then the Inspector believed, and 

it is our position, that the circumstances, the state 

of that wall circumstantially supports the theory that the 

fatality was caused by the poor condition of that wall • 

• 

The parties do not dispute the fact that the rock which fell from the 

highwall and caused the fatality constituted a t1massive 11 fall (Tr. 225). 

This conclusion is supported by the testimony of witnesses which described 

the extent of the fall as encompassing a total volume of approximately 

100 tons of rock which fell from an area of the wall which was approximately 

25 to 30 feet wide and approximately 50 feet high, and from the photographic 

exhibits taken shortly after the accident showing the rock mass which covered 

the drill as well as the victim. Inspector Spurlock's accident inves 

tion report contains a finding that "loose overhanging material was 

present for a distance approximately 250 feet" (pg. 3, exhibit P-4). 

The citation (exhibit P-2), described the highwall as being 250 feet 

long, but the loose unconsolidated material is described as being "present 

along th: hig~wall". In his narrative statement describing the gravity 

of the violation, Mr. Spurlock states that the accident occurred "due 

to the walls not being evaluated properly". 

1063 
When read together, the highwall conditions described by the inspector 

in the citation, accident report, and narrative statement are lacking 

somewhat in clarity. It is difficult to determine from these documents 

precisely what the inspector had in mind when describing the parameters 

of the loose rock and materials which may have been present on the highwall 

in question. A reading of those documents suggests that loose unconsolidated 

rock materials were present on the highwall when the inspector viewed 

the pit and wall area after the accident, but is is far from clear to me 

whether his concern was with the entire 250 feet along the top of the 

highwall, or simply that 25 to 30 foot area from where the rock fell, 

including the immediate edges on both sides of the wall. In addition, 

it is not clear to me whether the inspector intended to cite the respondent 

for conditions which may have existed before the highwall collapsed, 

or whether his intent was to cite a violation for the conditions of the 

highwall which existed at the time he viewed the area after the fall. 

On the basis of the facts presented in this case, separation of 

those conditions which may have caused the highwall to collapse, and those 

conditions which the inspector believed constituted a violation at the 

time he issued the citation is no easy task. Significantly, since none of 

the inspectors who testified observed the condition of the highwall 

prior to the fall, petitioner 1 s case concerning hazardous conditions rests 

on speculation and inferences based on what observed after the event. 

On the other hand, respondent's defense that the highwall which fell had 

been scaled and contained no readily observable hazardous conditions is 

supported by the testimony of several witnesses who were in the pit and 

highwall area immediately prior to the fall. 

The citation issued on August 6, 1980, was issued the day after the 

fatal fall of rock material from the pit highwall. The inspector had 

been summoned to the scene, and during his investigation of the accident 

issued the citation which states on its face that "loose unconsolidated 

material (rock) is present along the highwall". The inspector described 

the wall in the citation as being approximately 250 feet long and 50 feet 

high, and he states that he observed the conditions during his fatal accident 

investigation. Although no other conditions are described on the face 

of the citation issued at the time of the event, at the hearing held on 

February 2, 1982, the inspector identified several photographs taken during 

his investigation and he described several areas along the highwall as 

"cracks." and "overhanging materials" as well as loose unconsolidated materials. 

However, he also testified that the cracks were present in the highwall 

area which remained after the fall, and that the overhanging material was 

created the wall collapsed. 

With regard to the assertion that the respondent failed to properly 

scale the highwall, the inspector testified that he reached this conclusion 

after observing loose unconsolidated rock still present on the highwall 

after the fall. He also identified other areas along the highwall containing 

unconsolidated material, but conceded that these areas were away from the 

fall area and had nothing to do with the rock which fell, He also conceded 

that he did not view the highwall in question prior to the fall, had no 

1064 
knowledge as to the condition of the wall prior to the fall, had no idea 

as to the angle of repose of the highwall prior to the fall, and was not 

present when the conditions he cited were abated. Although he indicated 

that he observed "teeth" marks made by the shovel in the highwall, his 

conclusion that the wall was not scaled was based on the fact that the 

shovel was not in the pit area on the day of the accident and he determined 

during his investigation that the shovel had not been used in the pit for 

the three or four days prior to the accident. 

With regard to the existence of "hill seams" in the highwall, the 

inspector conceded that it was possible that some were present in the 

highwall area which had fallen, and he also conceded that some of the 

cracks which he described may have been "natural". He reiterated that the 

fact that the loose unconsolidated materials which existed, and which he 

observed after the fall, constituted an obvious violation of section 77.1001. 

State mine inspector Copeland, who accompanied the MSHA inspector 

during the accident investigation did not view the wall to the 

fall and had no knowledge of its condition. His testimony regarding the 

existence of loose rock on the,wall is based on observations made~~~ 

the fall and while he expressed an opinion that the wall would not 

looked any different before the fall, he had no basis for making that 

judgment other than his "experience". In these circumstances, since 

I believe that the massive fall of rock 'which occurred was a rather unusual 

event, particularly in light of the extent of the fall, I reject the notion 

that anyone may rely on "past experience" to support a conclusion that the 

highwall area which fell probably looked the same way the day before the 

fall. As for the cracks which he observed, Mr. Copeland conceded that 

he had no way of knowing what caused them, and he candidly conceded that 

he could not state whether the cracks presented a hazard because there 

was no way to tell where they led to, 

As for the testimony of state mine inspector Farmer, he too conceded 

that he had no knowledge of the condition of the wall prior to the fall, 

and while he agreed with Mr. Copeland's conclusion that loose unconsolidated 

material caused the f~ll, his conclusion in this regard~ as well as that 

of Mr. Copeland is simply based on the fact that "it did fall". 

Petitioner's arguments 

In addition to the arguments presented during the course of the 

hearing, in its posthearing brief petitioner argues that the fatal 

accident was caused by the respondent allowing the highwall in question 

to deteriorate over a period of several days, during which time its 

scaling and stripping shovel was absent from the pit. Petitioner maintans 

that the inspector issued the section 107(a) withdrawal order the day 

the fatal rock fall when he observed loose and unconsolidated material 

along the entire length of the highwall during the course of his accident 

investigation, and in support of this contention, petitioner has cited 

certain testimony by the inspector, as well as several photographs of 

the highwall taken at the time of the investigation. Further, petitioner 

1065 
asserts that the inspector cited a violation of section-77.1001, because 

the highwall had not been sufficiently scaled or sloped to the required 

85 degree angle of repose. Petitioner cites the inspector's testimony 

that the wall was vertical and overhanding, and at an angle of from 90 

to 95 degrees, and that the wall which fell and crushed the victim was 

identical to a column which buldged out from the highwall is shown in 

photographic exhibit P-8. 

Petitioner also relies on the testimony of mine superintendent 

Huddleston that the shovel used for scaling was moved out of the pit 

on the previous Thursday or Friday prior to the accident which occurred 

on Tuesday, August 5, 1980, as well as the testimony of the inspector 

that the wall was probably "working" two or three days before the fall, 

and the testimony of the shovel operator Woodall that the wall could 

have been working during the time the shovel was removed, to support a 

theory that the removal of coal requiring heavy front end loaders and 

trucks to pass near and under the wall, as well as vibration from the 

victim's drill, during this time caused the deteriorating wall to collapse. 

Finally, petitioner cites the testimony of respondent's witnesses 

who expressed concern about the conditions of the wall as depicted in 

MSHA's photographs, and asserts that respondent's suggestion that the 

collapse of the wall was caused by undetectable 11hill-seams 11 should 

be rejected as sheer speculation based on no credible evidence or testimony. 

Respondent's arguments 

In addition to oral argument made at the hearing, respondent argues 

in its brief that the inspector's decision to issue the citations in 

this case was dictated by the fact that a fatality occurred. Conceding 

that a dangerous condition existed prior to the accident, respondent 

maintains that such a condition was not apparent to the accident victim, 

the mine foremen, or any other employees in the area in question. 

With regard to the photographs introduced by MSHA during the hearing, 

respondent maintains that they contribute nothing constructive to this 

case since they can be, and in this case are, deceptive, especially as 

to depth, the lay of land, etc., and simply do not give an accurate idea 

of the way the area looked, even at the time they were taken. 

With regard to Inspector Spurlock's "evaluations" as reported in 

his accident investigation report, respondent makes the following comments: 

1. Respondent concedes that foreman David Ellison 

directed the accident victim to drill a series 

of holes in the bottom of the pit near the 

highwall. 

106G 
2. Regarding the conditions of the highwall as 

reported by the inspector in his report, respondent 

maintains that the highwall had, in fact, been 

scaled properly as testified to by the operators, 

foreman, and other mine employees. As for the alleged 

cracks in the wall, respondent asserts that they resulted from the fall and that the respondent had no 

control over this condition. 

3. With regard to the existence of certain drill holes 

at the top of the highwall and the inspector's belief 

that the weight of the drill may have weakened the 

highwall, respondent points out that this assumption 

was proved to be completely erroneous because the holes 

were drilled before the highwall was even created and 

that it is impossible to operate a drill within 3 to 5 

feet of the highwall due to the way a drill must 

be set up and braced for drilling. 

4. Concerning the purported statement by foreman Ellison 

that the shovel normally used for scaling the highwall 

had been out of service for repairs for five days, 

respondent states that the evidence proved that the 

shovel had not been taken out of service until it had 

completely stripped the pit, scaled the highwall, and 

completed its job in that area. It then left the pit 

under its own power, in an operating condition, and 

the shovel operators described how they scaled the highwall as the pit was stripped down. 

5. Respondent agrees with the statement that foreman 

Ellison and second shift foreman Robert Marcum observed 

the drilling operation approximately five minutes 

before the accident and that both men stated that they 

observed no hazardous conditions at that time. 

I am convinced from all of the evidence and testimony adduced in this 

case that Inspector Spurlock was primarily concerned about the loose, 

unconsolidated and overhanging rock which was present at the highwall 

area after the collapse of the wall. I am further convinced that he 

issued the inuninent danger withdrawal order because of his concern 

that the condition of the highwall after the fall posed an imminent danger 

in the event mining were permitted to continue before the conditions 

which remained were corrected. However, the critical issue presented 

in this case is not so much the condition of the highwall after the fall, 

but rather~ the conditions which existed prior to the fall and whether 

proper scaling and removal of rock had been accomplished in accordance 

with the requirements of the cited safety standard. The fact that an 

imminent danger may have existed at the time the inspector viewed the 

1067 
scene of the accident the day after the wall collapsed during his 

investigation does not establish that the condition of the wall sometime 

prior to that event was such as to constitute a violation. After careful 

consideration of all of the evidence and testimony adduced in this case, 

I conclude and find that the petitioner has failed to establish by a 

preponderance of any credible evidence that loose, hazardous, and unconsolidated materials were present along the entire highwall in question 

prior to the fall, or that respondent had failed to comply with section 

77.1001 by failing to strip or scale the entire highwall wall in question. 

Inspector Spurlock's conclusion that the entire highwall had not 

~nproperly scaled was based in part on his assertion that loose, 

unconsolidated material was still present on the wall after the massive 

rock fall. However, he conceded that the loose materials he cited, as 

well as the overhanging areas, were at the location or in close proximity 

to that part of the wall which collapsed. In short, it seems obvious 

to me that his observations concerning the unconsolidated materials still 

present when he conducted his investigation on August 5th, were in f~ 

observations of loose and overhanging materials which were the direct 

result of the fall which had occurred the day before, and which were 

present at or near that location. 

A second reason for Inspector Spurlock concluding that the entire 

highwall was not properly scaled was his determination made during his 

investigation of the accident that the shovel normally used to scale 

the highwall had been out of service for repairs for five days prior to 

the highwall collapse, and that no other equipment capable, of scaling 

the wall was present in the pit when Mr. Spurlock was there. The information 

concerning the absence of the shovel from the pit area was apparently 

given to Mr. Spurlock by former pit foreman David Ellison. Mr. Ellison 

did not testify at the hearing and petitioner did not take his deposition. 

Since none of the witnesses presented by the petitioner viewed the highwall 

conditions prior to the fall, petitioner's assertions that the highwall 

was not properly scaled in based on speculation and assumptions that no 

scaling of the highwall took place prior to the massive fall which occurred 

on August 5th. Although state mine inspector Copeland stated that the 

wall should have scaled, he prefaced his testimony with the re.mark "if 

it was this way before". Since he candidly admitted he had never 

observed the wall prior to the fall, and since it seems obvious to me that his 

testimony regarding the condition of the wall focused on how it appeared 

to him after the fall, his testimony as to whether it was in fact scaled 

is of little or no value. As for state inspector Farmer's testimony, 

I have given no weight to his inference that since the wall fell it 

obviously needed scaling. 

Respondent's witnesses testified as to the scaling which had been 

on the highwall prior to the fall. Shovel operator Woodall, a man with 34 

years of experience in the pits, testified as to the procedures he follows 

1068 
in stripping and scaling a highwall. Although his test~mony regarding 

the work that he performed in the pit indicates that it was done on the 

shift following the accident, he "guessed" that the last time he scaled 

the highwall in question was one or two days prior to the fall, and he 

indicated that the 2400 shovel was the one used to scale the wall and 

that it was not out of service on that day. 

Former shovel operator Jack Miracle testified that he and Mr. Woodall 

operated the Lima 2400 shovel in the pit area where the fall occurred. 

Mr. Miracle testified that while he performed no work in the pit the day 

of the accident, he did work on Monday, the day before the accident, 

and that he took the shovel out of the pit after the last shift that 

evening and parked it some 500 feet away for overhaul. He also testified 

that nothing was left to be done in the pit when he took the shovel out, 

and he observed no unsafe conditions on the highwall. 

Mine Superintendent Huddleston, a personal friend of the accident 

victim, testified that he was supervising the pit operations on the day 

of the accident and that he also worked in the pit the previous Saturday 

and observed nothing which would cause him concern for the integrity 

of the highwall. Mr. Huddleston did not see the shovel in the pit on 

Saturday, and he believed that it may have been moved out of the pit 

the previous Thursday or Friday. Thus, his testimony contradicts the 

testimony of Mr. Woodall and Mr. Miracle as to when the shovel may have 

actually been taken out of the pit area. 

Drilling and blasting foreman Wyatt and shift foreman Marcum testified 

that they were both in the pit area in question on the day of the accident, 

that the highwall appe~red to be safe, and they observed no dangerous or 

hazardous conditions. 'General Manager Shackelford testified that he 

observed the highwall the previous Thursday and Friday and it appeared 

safe. He also stated that he was in the pit on the morning of the accident, 

observed no cracks or dangerous conditions, observed men and equipment 

working under the highwall, and observed nothing which would lead him 

to believe they were in danger. 

With regard to the existence of any loose, unconsolidated or overhanging rocks, it should be noted at the outset that the citation issued 

by the inspector states that such materials is present, and that it 

was observed during his accident investigation. Although the inspector's 

accident investigation report contains a finding that the loose materials 

was present for a distance of 250 feet, the citation simply states that 

the highwall was that long, but it does not state that the loose materials 

were present for that entire dis,tance. Further, during his testimony 

at the hearing, the inspector made frequent references to certain photographs 

which were taken after the fall at the scene of the accident (exhibits 

P-5 through P-15), and he relied on those photographs to support his 

contention that loose materials were present along the highwall. However, 

a close examination of his testimony, as well as the photographs, leads 

me to conclude that Mr. Spurlock's concern with the conditions of the highwall 

1069 
focused on what remained of the wall after it fell and not with the 

conditions of the entire 250 length and breadth of the wall. For example, 

the inspector identified exhibit P-7 and drew a circle around an area 

of overhanging loose materials. One of the circles is directly over 

the fall area, and the other area circled appears to be in close proximity 

to the fall area. 

The inspector also identified several cracks in the highwall, and 

circled several areas which he believed contained loose, unconsolidated 

rock, as well as overhangs of rocks and loose materials, as depicted 

in photographic exhibits P-9 through P-11,and P-14, However, he candidly 

admitted that some of the cracks along the top of the highwall, as well 

as the overhanging rocks and loose materials,were present in that part 

of the highwall which was left standing after the fall had occurred, 

and the enlarged photographs which he relied on substantiate the fact 

that the conditions referred to were at or closely adjacent to the area 

of the wall collapse. He also described some of the "cracks" as natural 

rock formations, and while state inspector Copeland also alluded to the 

presence of "cracks", he could not tell what caused them or where they 

led to and his description of overhanging rock as shown in photographic 

exhibit P-15 is clearly in reference to a condition left the rock 

fall in question, 

None of the witnesses who testified for the petitioner in this case 

had viewed the highwall in question prior to the fall, and it seems clear 

to me that they had no way of knowing the condition of that wall prior 

to the massive fall of rock which occurred on August 6, 1980. On the 

other hand, practically all of the witnesses who testified for the respondent 

had viewed the conditions of the highwall both before and after the fall, 

had worked in and around the pit area where the fall occurred, and their 

consistent testimony is that the highwall at the immediate location of 

the fall, as well as in the adjacent areas, as depicted in the photographs, 

simply did not look the same the day before and after the fall. Having 

viewed these witnesses on the stand during the course of the hearing, 

I find their testimony to be credible. 

Petitioner's reliance on Inspector Spurlock's testimony that the 

highwall conditions he observed during his accident investigation on 

August 6th, a day after the fall, were not significantly different 

from those which prevailed on August 5th, the day before the fall, is 

rejected. The testimony in this is case is that over 100 tons of rock 

materials fell from a 25 to 30 foot wide section of the highwall which 

was some fifty feet high and that several locations at the edges of the 

fall were left with loose, overhanging materials. However, it seems 

obvious to me that these conditions were the direct result of the fall, 

and I fail to comprehend how the petitioner can argue that the highwall 

conditions on both days were the same. Further, the testimony in this 

case is that the cited conditions were abated after "the loose unconsolidated 

material (rock) had been shot off, and the hazardous condition no longer 

exists" (exhibit P-2). 

1070 
The record here confirms the fact the Inspector Spurlock did not 

issue the abatement or termination, but he did confirm that the citation 

was terminated after the highwall where the fall occurred was blasted 

down. Mine Superintendent Huddleston also confirmed that the citation 

was abated by blasting down the area immediately above the fall, and 

that the entire wall was eventually taken down months later. These 

facts support the conclusion that the gravamen of the charge t 

the respondent is that loose, unconsolidated materials were present along 

the highwall on August 6, 1980, the day that the inspector conducted 

his accident investigation, and that he was concerned about those conditions 

and that they were subsequently abated to MSHA's satisfaction by 

down that portion of the wall which was left standing after the fall 

and which contained loose, overhanging rock materials. 

In view of the foregoing, I conclude and find that the evidence 

and testimony adduced in this case does not support a that 

loose, hazardous materials were present on the highwall prior to the fall 

and that the respondent failed to strip or scale any such materials 

from the wall. Although the testimony regarding when the shovel 

used for scaling was taken out of the pit area 

presented credible testimony that scaling and 

accomplished in the pit area in question .prior to the massive rock fall 

and that the condition of the highwall immediately prior to the fall 

appeared to be free of any readily observale or detectable hazards to 

those men and supervisors who were in the area. As for the existence 

of the loose, unconsolidated and overhanging rock materials which were 

left after the fall, I cannot conclude that these conditions constituted 

a violation of the cited standard. Those conditions were the direct 

result of the fall and the area had been secured, miners were withdrawn, 

and barricades erected to facilitate MSHA's accident Given 

these circumstances, I do not believe that the respondent should be 

charged with a violation. As indicated earlier, the fact that the remaining 

conditions may have presented an innninently dangerous condition does 

not necessarily support a conclusion that a violation of any mandatory 

safety existed. Under the circumstances, Citation No. 0736755, issued 

on August 6, 1980, citing a violation of 30 CFR 77.1001, IS VACATED. 

Citation No. 0736757, August 6, 1980, 30 CFR 77.1713 

30 CFR 77.1713(a) provides as follows: 

At least once during each working shift, or more 

often if necessary for safety, each active working 

area and each active surface installation shall be 

examined by a certified person designated by the 

operator to conduct such examinations for hazardous 

conditions and any such hazardous conditions noted 

during such examinations shall be reported to the 

operator and shall be corrected by the operator. 

1071 
Subsection (c) of section 77.1713 requires the cer~ified person 

making the examination required by subsection (a) to record the .conditions 

of the mine areas that he examined in an approved book maintained at a 

designated mine area. The certified person is also required to report 

any hazardous conditions discovered during his examination so that 

appropriate corrective action may be taken. 

Subsection (c) of section 77.1713 requires the certified person 

making the examination required by subsection (a) to record the conditions 

of the mine areas that he examined in an approved book maintained at a 

designated mine area. The certified person is also required to report 

any hazardous conditions discovered during his examination so that appropriate 

corrective action may be taken. 

The citation charges the respondent with failing to make an adequate 

onshift examination, and the reasons given for this conclusion on the 

face of the citation is that "the highwall on each end of the accident 

scene was obviously hazardous and the conditions were not recorded in 

the record book". The citation was subsequently modified to include a 

second charge that "the person making the on-shift examination and 

out the record book was not certified in the State of Tennessee". The 

term "certifiedn is defined in pertinent part by section 77,2(m) as 

"a person certified or registered by the State in which the coal mine is 

located to perform the duties prescribed by this Part 77". 

Petitioner's arguments 

Petitioner argues that Inspector Spurlock cited a violation of 

section 77.1713, because the on-shift examination book for August 5, 1980, 

showed that the highwall was "okay". Due to "the obvious nature of the 

bad highwall", petitioner asserts that the inspector concluded that the 

required inspection was not done, or was incompetently done, and points 

to the inspector's testimony that in his judgment the wall as he saw 

it on August 6, 1980, would not have significantly changed so that what 

he observed on August 6, 1980, should have been apparent to the on-shift 

examiner on August 5, 1980. 

Petitioner argues that Inspector Spurlock cited a violation of 

section 77.1713 because he interpreted that section as requiring not only 

an examination of active working areas and active surface installationa, 

at least once on every shift, but also that this examination must be 

competent, in that it must detect hazardous conditions which then must 

be reported and corrected, as required by the standard. 

Petitioner submits that the inspector's interpretation of section 

77.1713 is correct and that it requires the certified person to do more 

than simply "view" the highwall. Since the standard requires that such 

areas be examined, petitioner asserts that the Dictionary definition 

of that word, which states in part "to inspect or test for evidence of 

disease or abnormality" is applicable in this case, In addition, petitioner 

1072 
relies on the requirement of section 77.1713(c) that the certified person 

must make a report of the nature and location of any hazardous condition 

found to be present at the mine in further support of its interpretation of 

the standard, and cites Judge Stewart's decision in Secretary of Labor v. 

Bill's Coal Company, Inc., 1 FMSHRC 167 (1979) (Judge Stewart interpreting 

77.1713(c)),wherein he stated that: 

The operator's failure to record the existing hazards 

was negligent in that the conditions were visually 

apparent. 

Petitioner submits that Judge Stewart 1 s interpretation of section 

77.1713(c) in Bill's Coal Company, Inc. and the interpretation which 

gives substance to this standard, in general, compels an interpretation 

consistent with that of Inspector Spurlock's, that the section is violated 

not only by the complete failure to examine working areas at least once 

per shift, but also by the failure to carry out these examinations in 

a competent manner by failing to discover the hazardous conditions that 

are present. 

Petitioner argues further that section 77ol713(a) was also violated 

when foremen Marcum and Ellison went into the pit to make an examination 

a few minutes before the accident and failed by their cursory inspection 

to discover not only the apparent hazards but also the imminent hazard 

of the rock fall which took place within a few short minutes after this 

"inspection". In support of this conclusion, the petitioner cites the 

Commission's decision in Peabody Coal Company v. Secretary of Labor, 1 FMSHRC 

1494 (1979), where the Commission stated: 

The regulation is broadly worded and requires, among 

other things, that a designated certified person 

examine working areas for hazardous conditions a~ 

of ten as is necessary for safety and that any conditions 

noted be corrected by the operator. 

In conclusion, petitioner maintains that section 77.1713(a) was 

violated when the respondent failed to competently examine the work areas 

and thus failed to identify the hazardous conditions present there. This 

occurred, states the petitioner, not only when the first shift foreman 

Ellison conducted his regular on-shift examination (if it was earlier 

than the examination conducted with second shift foreman Marcum) but 

also when Ellison and Marcum again entered the pit shortly before the 

accident to carry out another examination and failed again to detect 

the hazards. 

Failure to perform adequate inspection and to record hazardous conditions. 

The inspector testified that he cited this condition because of his 

assumption that the accident was caused by a hazard (loose unconsolidated 

rock) which he believed should have been detected and recorded by shift 

foreman David Ellison. The citation which he issued states that "inadequate" 

1073 
on-shift examinations were made because the highwall "on each end of 

the accident scene was obsiously hazardous and the conditions were not 

recorded in the record book". In support of this specification petitioner 

relies on the testimony of the inspector as well as the notation made 

on his "narrative statement" recorded at the time that he issued the 

citation (exhibit P-3), indicating that "The on shift record books showed 

o.k. in all highwalls, and at the scene of the accident and at another 

pit loose material was present". The book was not produced at the hearing, 

nor were any entries for the previous days mentioned. 

Mr. Ellison is no longer employed by the respondent and neither 

party apparently made any attempts to take his deposition. However, 

second shift foreman Marcum testified that when he and Mr. Ellison were 

in the pit some ten minutes prior to the rock fall they observed no 

hazardous conditions. Although Mr. Marcum did not know whether the brief 

visit to the pit constituted Mr. Ellisonvs onshift examination, general 

manager Shackelford and superintendent Huddleston testified that they 

too were in the pit the morning of the accident, visually observed 

the highwall, and saw no hazardous conditions present. 

Respondent does not argue or assert that the rather cursory view 

of the highwall by Mr. Ellison and Mr. Marcum while driving by the pit 

area in a truck during the end of the first shift and immediately before 

the wall collapsed constituted the inspection required by section 77.1713. 

Inspector Spurlock's accident investigation report (pg. 2) indicates 

that the accident victim reported for work at the pit in question at 7:00 

a.m. on the day of the accident, and the pit was under foreman Ellison's 

supervision. The report also reflects that Mr. Ellison made an examination 

of the working areas of the pit and then assigned the workmen to their 

normal duties. Mr. Ellison entered the pit again at approximately 3:00 p.m. 

with second shift foreman Marcum, observ~d the work that had been performed 

by the accident victim at the base of the highwall, and left the area. 

Shortly thereafter another individual discoverd that a portion of the 

highwall had fallen on the cab of the drill and that the accident victim 

had been crushed by the falling material. 

Inspector Spurlock conceded that he did not know what foreman Ellison 

may have observed during his shift, and as previously noted, Mr. Ellison 

did not testify, and petitioner did not take his deposition. Since 

Insp2ctor Spurlock had absolutely no way of knowing what Mr. Ellison 

may have observed when he noted the highwall conditions as "okay", I cannot 

conclude that Mr. Spurlock is in any better position to conclude that 

the conditions were in fact hazardous and that Mr. Ellison's failure 

to observe and record these purported hazardous conditions constituted 

a violation of section 77.1713. It seems to me before anyone can conclude 

that the respondent failed to accomplish its required on-·shift examination 

in a "competent" manner because of some failure on its part to discover 

and record any asserted "hazardous conditions" which may be present it 

must first be established through competent credible evidence that such 

hazardous conditions existed and were readily obvious to the certified 

person making the examination. 

1074 
While I agree with the petitioner's interpretation- of what constitutes 

an examination pursuant to section 77.1713, the evidence and testimony 

adduced by the petitioner in this case in support of the citation simply 

does not establish a violation. It seems clear to me that the petitioner's 

position is that since there was a massive fall of rock from the highwall, 

the on-shift examiner was somehow derelict in his duty by not recording 

the hazardous conditions which led to that fall when he conducted his 

required inspection the day before the fall. However, as previously noted, 

I have concluded and found that the petitioner did not establish that 

such hazardous conditions existed and I have rejected petitioner's assertion 

that the highwall conditions observed by Inspector Spurlock during his 

accident investigation were not significantly different from those which 

probably prevailed the day before. Further, as previously noted, the 

evidence in this case clearly established that some 100 tons of rock fell 

from a 25 to 30 foot wide section of the highwall, and that the remaining 

portion of the highwall at or directly adjacent to that fall contained 

loose overhanging rock materials. It seems obvious to me that these 

conditions were the direct result of the fall and I fail to comprehend 

how the petitioner can now argue that the conditions on both days were 

the same and that they were somehow readily observable and should have been 

apparent to the on-shift examiner. 

In view of the foregoing, I conclude and find that petitioner has 

presented no credible evidence to support its contention that loose 

hazardous materials were in fact present on the highwall area which fell 

or that the person conducting the on-shift examination observed such 

conditions and failed to record and report them. While it is true that 

loose unconsolidated rock materials remained on the highwall after the 

fall and that an overhang was present immediately above the wall area 

which had fallen out, I am convinced that these conditions were the direct 

result of the fall. This is also true for the areas described by the 

inspector as being "on each end of the accident scene". The fact that 

respondent was only required to blast down that portion of the wall 

in the immediate vicinity of the fall to abate the citation strongly 

suggests that this was the area which really concerned the inspector. Since 

the withdrawal order issued after the accident occurred and the area was 

barricaded off and no one was working there, the failure to record those 

remaining conditions does not in my view give rise to any violation of 

section 77.1713. The purpose of this standard is to alert a miqe operator 

of obvious detectable hazards so that corrective action may be taken, and 

if necessary, to facilitate the withdrawal of mines from the zone of danger 

Accordingly, that portion of the citation which charges a failure to 

conduct an adequate inspection and record obvious hazardous conditions is 

VACATED. 

Lack of state certification on the part of the on-shift examiner. 

The facts in this case reflect that part of the respondent's mining 

operation is located in the State of Tennessee and part in the State of 

Kentucky. The site of the accident took place in that portion of the 

1075 
mine which has a Mine "ID" number indicating that it is in the State of 

Tennessee. Mr. Marcum testified and confirmed that shift foreman Ellison 

was not certified in the State of Tennessee, but he did not know why. 

Mr. Marcum is certified in both states, and Inspector Spurlock confirmed 

that Mr. Ellison was certified by the State of Kentucky. No evidence 

was forthcoming as to the requirements for certification in these states, 

and there is nothing in the record to indicate the relatiave mine expertise 

required by those jurisdictions before one is "certified". In any event, 

I believe it is clear from the evidence presented that Mr. Ellison was 

not certified by the State of Tennessee and since he was required to 

perform duties at the mine in that state, his lack of proper certifiecation 

has been established by the petitioner and this specification of the 

modified citation is AFFIR11ED. 

History of Prior Violations 

Respondent's history of prior violations for the period August 6, 1978 

through August 5, 1980, as reflected in the computer print-out (exhibit P-1), 

shows that the respondent has paid assessments in the amount of $414 

for five citations issued during this 24-month period, none of which are 

for violations of sections 77.1001 or 77.1713. 

On the basis of the record presented in this case I conclude and find 

that the respondent has a good safety record and that its history of 

prior violations does not warrant any additional increases in the civil 

penalties imposed by me on the basis of this criterion. Further, I have 

considered the fact that the accident which occurred in this case was 

the first of its kind at the mine and that respondent had not previously 

been charged with violations connected with pits and highwalls. In addition, 

the record reflects that prior to the accident in question the respondent 

had no problems with the highwall in question, and except for the accident, 

petitioner presented no evidence to reflect that respondent has previously 

failed to maintain its highwalls and pits free from hazardous materials. 

Size of Business and Effect of Civil Penalties Respondent's Ability to 

Continue in Business. 

The record reflects that the respondent employs approximately 140 persons 

and its annual coal production is approximately 280,000 tons. Its strip 

mining operation extends into Kentucky and Tennessee, and the mine in 

question is located in Tennessee and employed approxiamtely 29 persons 

at the time of the citation (Tr. 223-224). I conclude and find that 

responsent is a small-to-medium sized mine operator and this is reflected 

in the penalty assessed by me in this case. Further, the parties have 

stipulated that any penalty assessment in this matter will not adversely 

affect respondent's ability to continue in business and I adopt this 

as my finding. 

Gravity 

On the facts presented here, I cannot conclude that the failure by 

the foreman making the examination in question to be certified by the State 

1076 
of Tennessee constituted a serious violation. The record reflects that 

foreman Ellison was certified by the State of Kentucky, and since the 

mine property crossed both jurisdictions, I assume that a foreman certified 

by one state is just as competent as one certified by another. Further, 

absent any evidence by MSHA that the lack of certification was serious 

per se, I cannot conclude that it was. 

Negligence 

A mine operator is presumed to know the law. In this case I find 

that the violation which I have affirmed resulted from the failure by 

the respondent to exercise reasonable care, and that this constitutes ordinary 

negligence. 

Penalty Assessment 

On the basis of the foregoing findings and conclusions, and taking 

into account the requirements of section llO(i) of the Act, I conclude 

that a civil penalty of $75 is appropriate for the citation which has been 

affirmed, 

Order 

Respondent IS ORDERED to pay a civil penalty in the amount of $75 

within thirty (30) days for a violation of 30 CFR 77.1713(a) as detailed 

in the section 104(a) Citation No. 0736757, as modified on August 12, 1980. 

Upon receipt of payment by the petitioner, this case is dismissed. 

Administrative Law Judge 

Distribution: 

Daniel J. Tribell, Esq., S.A.M. Coal Corp., Box 188, Middlesboro, KY 

40965 (Certified Mail) 

Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor, 

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

1077 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

JUN 4 - l9ln 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY'PROCEEDING 

Petitioner, 

v. 

PHELPS DODGE CORPORATION, 

Respondent. 

~~~~~~~~~~~~~~~~~~-

Appearances: 

Linda Bytof, Esq., Office of the Solicitor 

United States Department of Labor 

DOCKET NO. CENT 80-349-M 

A/C No. 29-00159-05012 

MINE: Tyrone Mine & Mill 

11071 Federal Building, Box 36017, 450 Golden Gate Avenue 

San Francisco, California 94102 

Appearing on behalf of the Petitioner 

James Speer, Esq., and Stephen Pogson, Esq. 

Evans, Kitchel & Jencks 

363 North 1st Avenue, Phoenix, Arizona 85003 

Appearing on behalf of the Respondent 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Federal Mine Safety and 

Health Administration, (MSHA), charges respondent Phelps Dodge Corporation 

(Phelps Dodge) with violating the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. 801 ~seq. 

After notice to the parties a hearing on the merits was held on March 

25, 1982 in Phoenix, Arizona. At the conclusion of the evidence the 

parties waived their right to file post trial briefs and they further 

requested a bench decision. 

1078 
Based on the evidence I issued the following bench decision: 

JURISDICTION 

The parties in the pleadings filed in this case admit that the Federal 

Mine Safety and Health Review Commission has jurisdiction over the 

parties. 

SETTLED CITATIONS 

Petitioner has moved to vacate citations 162308~ 162309~ 162310 and to 

vacate all penalties in connection with those citations. The motion to 

vacate is granted. The citations and penalties should be vacated. 

Respondent has also moved to withdraw its notice of contest to 

Citation 162205 and pay the proposed penalty. That motion is granted, 

Citation 162205 the proposed penalty is $72.00 should be affirmed. 

CITATION 162203 

The petitioner in this citation alleges a violation of Title 30, Code 

of Federal Regulations, Section 55.9-11 which provides as follows: 

Mandatory. Cab windows shall be of safety glass or 

equivalent, in good condition and shall be kept clean. 

ISSUES 

The issues are whether respondent violated the regulation and, if a 

violation occurred, what penalty is appropriate. 

FINDINGS OF FACT 

Furloughed MSHA Inspector Bill Novinger testified for the petitioner. 

On March 11, 1980, inspector Novinger was at the Phelps Dodge mine arriving 

there about 7:30 a.m. At that time he saw a Caterpillar loader in the 

respondent's crushing area next to the primary crusher. It was parked 35 

to 50 yards from the primary crusher. The Caterpillar is a large rubber 

tired vehicle with a cab that can be entered seven feet above the ground, 

Access to the cab is provided by a ladder. 

Inspector Novinger observed that the upper glass of the cab window was 

shattered on the left side and short pieces of glass were protruding. The 

window itself measures 20 inches wide and 30 inches high. The entire upper 

window was broken into four or five pieces. The lower window was missing 

altogether. 

The inspector and a company representative had the pieces of glass 

removed with the worker holding a cloth to protect his hand. The hazard 

here was that the glass could fall out and strike a worker either inside or 

outside the cab. Vibration could also cause the glass to jiggle out and 

1079 
strike the driver. The citation was abated the following day. The inspector extensively reviewed the company records and reached a conclusion 

that some of the shop people were not aware of some of the defects in the 

equipment. 

DISCUSSION 

Witnesses Terrazas and Shupe offered by the respondent, in my view, 

do not establish a defense for this violation. Witness Terrazas reviewed 

the company records and they indicated that two days before this citation 

was issued the loader was in the repair shop for some welding work, 

Ordinary procedure would require somebody in the welding shop to have repaired the broken window, This was apparently not done and there was no 

record from the shop of it having been done, 

Respondent 0 s code of safety practices and the operator 0 s checklist (Rl 

and R2) merely establishes that the company has an internal procedure to be 

followed if defective equipment enters the repair shop, However, there is 

no evidence indicating that the window was repaired when the loader was in 

the shop for other repair work, 

The most devastating evidence offered by the government in this 

particular citation is that this equipment was in close proximity to the 

workers and sitting on the ready line where any worker could use it, In 

this condition, there was no reason it couldn't have been seen by a 

supervisor and ordered removed from service. I further note that when the 

MSHA representative and the company official called for a worker to start 

the equipment, he was able to do so. The equipment, at that time, was 

obviously not locked out, nor had it been removed from service. 

The law is clear in these circumstances that where defective equipment 

is available for use, the mine operator must be held in violation of the 

mandatory standard. 

CIVIL PENALTY 

The criteria for establishing a penalty and for assessing such a 

penalty is contained in 30 U.S.C. 820(i). Considering that statutory 

criteria, I deem that the proposed civil penalty of $48 for the violation 

of citation 162203 is appropriate and should be affirmed, 

CITATION 162312 

Petitioner in this citation alleges that respondent violated Title 30, 

Code of Federal regulations, Section 55.9-2 which provides as follows: 

Mandatory. Equipment defects affecting safety shall 

be corrected before the equipment is used. 

1080 
FINDINGS OF FACT 

MSHA representative Charles Price inspected the Phelps Dodge work site 

in March 1980. The inspector observed an "electra-haul" vehicle which has 

a hauling capacity of 170 tons. The vehicle has six large tires each with 

a diameter of ten feet, six inches. A strip of rubber (two inches deep by 

two and a half to three feet long) was missing on the outside portion of 

the rear tire. "Electra-Haul" vehicles move at 5 to 30 miles per hour in a 

pit area which has a number of grades in it. 

On the same day of the inspection, witness Jack M. Alexander was 

present. Mr. Alexander has attended a number of training schools on the 

functions and hazards of tires and their rim components. He has studied 

the company literature on the matter and has extensive work dealing with 

Goodyear tires in his last 30 years in that particular field. 

The particular tire on this truck was manufactured by the Goodyear 

Company. The tires are made from a radial base ply and there are six steel 

breakers above the body ply. The tread is 2-1/4 inches deep when the tires 

are new. The purpose of the rubber tread is for traction and the steel 

breakers are made of steel. The missing portion of the tire tread had come 

off near the shoulder of the tire. It was possible to see the top 

breakers. The strength of this tire was as good as the one next to ito 

There were 3,000 to 5,000 miles of safe operation left in this particular 

tire. The missing tire tread was not in contact with the pavement. A 

blowout would not occur unless at least three to four metal breakers are 

disrupted. The metal in this tire was in good condition. 

DISCUSSION 

The regulation at Part 55.9-2 has two facets. The first portion 

concerns whether there is an "equipment defect." 

Petitioner can establish a prima facie showing of a defect by proving 

that the equipment was being used in a different condition from that in 

which it was received from the manufacturer. Obviously, Goodyear Tire does 

not supply tires with portions of the tread missing. Accordingly, I conclude that an "equipment defect" existed. JJ 

The second requirement of the standard is whether the equipment defect 

"affected safety". In this regard, I find the witness, Jack M. Alexander, 

to be credible as he has broad experience in tires of this type. On the 

other hand, petitioner's witness, MSHA inspector Price, disavows any claim 

of expertise as to tires. Inasmuch as I find witness Alexander to be 

credible, I believe his testimony that the equipment defect involved here 

did not affect safety. For that reason, I conclude that citation 162312 

should be vacated. 

1/ In Allied Chemical Corporation, WEST 79-165-M (March 1982) (pending on 

review) a violation of this standard was ruled to have occurred when the 

mine operator used equipment that did not contain an integral part (a 

chock) originally provided by the manufacturer. 

1081 
Petitoner's counsel argues in her closing argument that the term 

"affecting safety" should be broadly construed. I agree. The regulation 

is a broad t.nnbrella inasmuch as the purpose of the Federal Mine Safety and 

Health Act of 1977 and its predecessors is to promote the safety of miners. 

I also have no quarrel with the cases she cites that safety had been 

affected in situations involving loose lug nuts, a rusted out brake, and 

inoperative rear signals. However, dealing with the evidence in this case, 

I do not find that the defect on this tire was one that "affected safety." 

Counsel for the petitioner also argues that there was a lack of 

balance in the defective tire. This condition could put more pressure on 

one tire than the other. That may be, but the evidence fails to establish 

that such a lack of balance was one that would affect safetyc 

Based on the foregoing findings of fact, the conclusions of law~ I 

enter the following order: 

ORDER 

1. Citation No. 162203 and the proposed penalty of $48 are affirmed. 

2. Citation Noc 162308 and all penalties therefor are vacated. 

3 0 Citation No. 162309 and all penalties therefor are vacated. 

4. Citation No. 162205 and the proposed civil penalty of $72 is 

affirmed. 

5. Citation No. 162310 and all penalties therefor are vacated. 

6. Citation No. 162312 and all proposed civil penalties are vacated. 

POST TRIAL ORDER 

The foregoing bench decision is affirmed. 

Judge 

, 1082 
Distribution: 

Linda Bytof, Esq. 

Office of the Solicitor 

United States Department of Labor 

11071 Federal Building, Box 36017 

450 Golden Gate Avenue 

San Francisco, California 94102 

James Speer, Esq. 

Stephen Pogson, Esq. 

Evans, Kitchel & Jencks 

363 North 1st Avenue 

Phoenix, Arizona 85003 

1083 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JIJN 7 - 1982 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Pet it ioner P 

v. 

KENNECOTT COPPER CORPORATION, 

Respondent. 

) CIVIL PENALTY PROCEEDINGS 

) 

) DOCKET NO. WEST 81-1~-M 

) A.C. No. 42-00712-05015 

) MINE: Arthur Concentrator 

) 

) DOCKET NO. WEST 80-474-M 

) A.C. No. 42-00149-05013 I 

) 

) DOCKET NO. WEST 80-360-M 

) A.C. No. 42-00149-05011 H 

) 

~~~~~~~~~~~~~~~~~~-

) MINE: Bingham Canyon 

Appearances: 

James R. Cato, Esq., Office of the Solicitor 

United States Department of Labor 

911 Walnut Street, Suite 2106 

Kansas City, Missouri 64106, 

for the Petitioner. 

Kent W. Winterholler, Esq. and John B. Wilson, Esq. 

Parsons, Behle & Latimer 

79 South State Street 

Salt Lake City, Utah 84147, 

for the Respondent. 

Before: Judge Virgil E. Vail 

DECISION 

STATEMENT OF THE CASE 

The above three cases, which were consolidated for hearing, involve 

alleged violations of Section llO(a) of the Federal Mine Safety and Health 

Act of 1977 (hereinafter the Act), 30 u.s.c. 820(a) (Supp. III, 1979). 

A hearing on the merits was held in Salt Lake City, Utah on April 27, 

1982, where the parties were represented by counsel. Post hearing briefs 

were waived. 

1084 
STIPULATIONS 

At the outset of the hearing, the parties stipulated as follows: 

1. The Bingham Canyon Mine and Arthur Concentrator of Kennecott 

Minerals Company are subject to the Federal Mine Safety and Health Act and 

the jurisdiction of the Federal Mine Safety and Health Review Commission. 

2. The past record of citations against the Bingham Canyon Mine and 

Arthur Concentrator are such that it would neither warrant an increase or 

decrease in the amount of a penalty, if the Court should decide that a 

penalty was warranted in either one of the three cases. 

3. The Bingham Canyon Mine and Arthur Concentrator of Kennecott 

Minerals Company are considered large in their relationship to other 

operations of this type. 

4. The two individuals who issued the citations involved in this case 

are duly authorized representatives of the Secretary. 

ISSUES 

Whether the respondent violated the Act or regulations as charged by 

the Secretary and, if so, the amount of the civil penalties which should be 

issued. 

DECISION 

At the hearing, documentary exhibits were received and witnesses 

testified on behalf of the operator and MSHA. At the conclusion of the 

taking of evidence, the parties waived the filing of written briefs, 

proposed findings of fact and conclusions of law. Instead, they agreed to 

make oral argument and have a decision rendered from the bench. That 

decision which appears below with only nonsubstantive corrections is 

affirmed as my final decision at this time. lf 

DOCKET NO. WEST 81-17-M 

This involves Citation No. 577414 issued on June 4, 1980, and involves 

a 104(a) violation of mandatory safety standard § 55.12-19 which states 

as follows: 

Where access is necessary, suitable clearance shall 

be provided at stationery electrical equipment or switch gear. 

Jj Tr. 225-235. 

1085 
The citation No. 577414 reads as follows: 

Suitable clearance and/or adequate access was not observed 

to the six electrical disconnect switches/starters/circuit 

breakers at the east end of the tripper floor. Access clearance was blocked and made difficult by the following materials 

stacked in and around the electrical switches: (1) Numerous 

grease/ oil-soaked cardboard boxes partially filled with oily 

rags; (2) two dollies; (3) one empty large cardboard box; 

(4) one 18" x 18" (approx.) piece of heavy metal; (5) one z4u 

x 3011 piece of thick rubber-like material; ( 6) several long 

pieces of wood. Employees are in this area daily. !J 

The issue in this case is whether or not suitable clearance was 

provided in the area near and around the switch boxes~ described as the 

east end of the tripper floor? Petitioner argues that there was not 

suitable clearance or what I interpret to mean access for personnel to the 

particular switch boxes located in the tripper area. Respondent argues 

that it was not necessary for there to be access to these switches, as 

there were other places where the equipment that was hooked up to the 

electrical boxes could be disconnected or the electricity turned off, 

Respondent further argues that if quick access was required to the 

particular disconnect switches to the machinery in the area cited herein 

due to an emergency, there were other ways to deal with this and it woulri 

not be necessary to use the switches at the east end of the tripper floor. 

I find a preponderance of the evidence shows that in the area cited 

under Citation No. 577414, particularly the pictures, demonstrate 

graphically there was considerable debris, clutter, and material which 

prevented quick access to these particular electrical boxes. Evidence 

shows that those electrical boxes would be of considerable help in case 

there was an emergency where it would be necessary to have a quick 

disconnect of electricity to machinery in the area. Depending upon where 

the person who was to be responsible for turning the equipment off was 

located, he would have a difficult time getting through the debris that 

existed in this area. Exhibits P-3, P-4 and R-1 shows the various items of 

debris that the MSHA inspector observed at the location covered under the 

citation. There appears, from looking at Exhibit R-1, to be space to the 

right side of the debris where a person could walk through. However, a 

broken 2 x 4 on the floor, as well as the other debris, I feel constitutes 

a violation of 55.12-19. 

I find the proposed assessment amount of $195.00 is reasonable in view 

of the fact that this is an area where the respondent's employees would go 

2/ Exhibit P-1. 

1086 
regularly to use products from a grease cabinet located in the area and 

would be aware of the conditions that existed there. 

DOCKET NO. WEST 80-360-M 

Docket No. WEST 80-360-M involves a 107(a) order of withdrawal and a 

104(a) citation for a violation of mandatory safety standard § 55.12-14 

which states in part as follows: 

Power cables energized to potentials in excess of 150 

volts phase-to-ground shall not be moved with equipment 

unless sleds or slings, insulated from such equipment 

are used. When such energized cables are moved manually, 

insulated hooks, tongs, ropes or slings shall be used unless suitable protection for persons is provided by other 

means... . 

Citation No. 576222 issued in this case states as follows: 

The Michigan front-end rubber tire dozer was moving 

the energized 5000 volt power cable to the No. 45 

shovel on the 6440 level with the dozer blade causing 

a potential shock hazard. The slings on either side 

of the protective insulated mats were not being used. 

The employee on the ground near the front end dozer 

was using tongs to help move the cable. 1/ 

The issue is whether the power cable was being moved in such a manner 

as to jeopardize the employees health and safety? 

Petitioner alleges that the testimony of the inspector should be 

believed in that he observed this activity of the dozer moving the sled 

upon which the cable was located and in so observing saw the cable come in 

contact with the blade of the dozer. He also testified he saw an employee 

in contact with the equipment. 

Respondent argues that they were not in violation of § 55.12-14 for 

the reason that they were using a sled and that the cable did not come in 

contact with the equipment nor did the employee come in contact with either 

the cable or the end loader. 

I find the most credible evidence in this case is that of the operator 

of the end loader and respondent's employee who testified that he assisted 

3/ Exhibit P-9. 

1087 
in moving the cable with a hook. Testimony in the case was that the cable 

lay in a trough through a mat of rubberized material {sled) covered with 

another strip of material on top of the cable. In the process of moving 

the sled the strip of material covering the cable came loose and that this 

is probably what the inspector saw and thought was the cable coming in 

contact with the blade. The fact that the inspector was not at the area 

where this was taking place, but observed it from afar (estimated to be 150 

yards) makes the credibility of the two other witnesses more believable, 

and based upon that evidence I am going to vacate Citation No, 576222, 

DOCKET WEST NO. 80-474-M 

Docket No. WEST 80-474-M involves a 104(a) violation of mandatory 

safety standard 55.9-22 which provides as follows: 

Berms or guards shall be provided on the outer bank 

of elevated roadways. 

Citation No. 576220 which states as follows: 

12 feet of the outer bank on the 6040 level haul 

road was not provided with a berm to prevent the 

electrical preventive maintenance truck No, 803 

from going over the elevated bank, injuring two 

employees. The distance from the 6040 level'to 

the 5990 level is approximately 50 feet. 

Both parties stated that there were no witnesses to what happened and 

a decision as to what occurred must be based upon a careful review of all 

of the evidence. The evidence that was admitted in the manner of exhibits 

and testimony does not clearly point to what actually occurred. I see the 

issue, having heard all of the evidence and observed all of the exhibits 

that were submitted, is, whether the area where the truck went over the bank 

had fallen prior to its arrival there eliminating the berm or collapsed 

from the truck backing up to near the edge causing the bank to fall? 

Respondent argues, based on the testimony of the driver, that he 

backed up to approximately 8 to 10 feet from the edge of the bank and 

stopped preparing to go ahead when the truck went over the embankment. 

Further, that members of respondent's safety investigative team were of the 

opinion that material at the bottom of the embankment resulted from the 

sloughing !!./ when the truck backed up to this point and went over the 

bank. Respondent further argued that Kennecott management has a good berm 

policy and they inspect for berms all the time which makes it unlikely that 

there was not a berm at this particular location. 

4/ Sloughing is defined in Websters New Collegiate Dictionary as: 11 to 

crumble slowly and fall away." 

1088 


Petitioner argues that based on the testimony of the inspector who 

arrived at the scene shortly after the accident and the pictures and other 

documents submitted in the way of evidence, that the material at the bottom 

of the area that apparently sloughed off does not indicate that it happened 

at the time the truck went over the bank and, therefore, there wasn't a 

berm at the top. Petitioner maintains this particular area had sloughed 

prior to the time the truck backed up there. 

It is not a question so much as to whether or not at one time there 

had been a berm at this location, because the evidence shows a berm on both 

sides of the area where the truck went over which appears to have been 

adequate when it was installed. The question here is whether the embankment fell at sometime eliminating the berm prior to the electrical 

maintenance truck backing up here, or did the truck's presence and weight 

cause the bank to collapse thus eliminating the berm at that time? 

Delbert S. Tapp, driver of respondent's truck involved in this 

accident, was asked on direct examination whether or not there was a berm 

where the accident occurred and he stated: "No, I didn't notice" (Tr. 170). 

On cross examination, Mr. Tapp was again asked if he saw a berm at this 

location and answered: "Not necessarily 1 I canut say as I did or didn 1 t, 

because I wasn 1 t paying attention" (Tr. 177-178). The witness was vague 

about this. I realize he was called by the petitioner· to testify and I had 

the impression he was uncomfortable. I was surprised that it was his and 

everyone else's observation of the facts that Tapp stopped at the distance 

that he said he did from the edge of the bank (8 to 15 feet) and did not 

observe a berm, if one existed. I further find that the photographic 

evidence, and particularly Exhibits P-15 and P-16 show a large indentation 

and gapping hole on the top of the embankment, and Exhibit P-19 shows a 

large sloughed area, yet there is not a great amount of loose material 

shown at the bottom of the embankment as might be expected if the area 

caved when the truck backed onto the top area. I also note in Exhibit P-10 

that there is little evidence of material around the truck where it ended 

up on its side after going over the bank. There is some material near the 

truck shown on the photos but with the size of the area that was supposedly 

sloughed off, I would expect a larger amount of material at the bottom and 

some on top of the truck which I don't see in the pictures. 

I find that the most credible evidence is that the driver of the truck 

backed up and over the edge of the embankment causing the truck to fall to 

the bottom. I'm convinced that there was not a berm at this particular 

location and that it was erradicated when the area sloughed off at an 

earlier time. I further find that respondent had a policy of inspecting 

the respondent's mine for berms and repairing them when they needed 

repairing but they failed to see the need for repair in the area involved 

in this accident. Respondent should have observed this condition if their 

policy was working but apparently it is not infallible. 

1089 
As to the amount of the penalty to be assessed in this case, I find 

that this area was not an area that was in regular use. The history of 

respondent's prior violations is such that the penalty should be- neither 

increased or decreased, but that they had a prior berm violation which was 

not refuted. The gravity of the violation is serious as shown by the fact 

that the two employees in the truck were injured with one sustaining a 

broken arm. Based upon the six criteria, four of which were stipulated to, 

I find a penalty of $750.00 is appropriate. 

ORDER 

It is ORDERED that the bench decision rendered in Docket Nos. WEST 

81-17-M, WEST 80-474-M and WEST 80-360-M is hereby affirmed. 

It is ORDERED that the Citation No. 576222 issued in Docket No. WEST 

80-360-M is hereby vacated. 

It is ORDERED that respondent pay the penalty in the amount of $195.00 

for Citation No. 577414 and the penalty in the amount of $750.00 for 

Citation No. 576220 totaling $945.00 within thirty (30) days of the date of 

this decision. 

Distribution: 

James R. Cato, Esq. 

Office of the Solicitor 

United States Department of Labor 

911 Walnut Street, Room 2106 

Kansas City, Missouri 64106 

Kent w. Winterholler, Esq. 

John B. Wilson, Esq. 

Parsons, Behle & Latimer 

79 South State Street 

P .o. Box 11898 

Salt Lake City, Utah 84147 

~,£-~£~{, Virgil F'J1Vail 

Administrative Law Judge 

1090 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUN 7-1982 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

.MOUNTAIN WEST CONSTRUCTION, INC., 

Respondent 

DECISION 

Docket No: WEST 81-219-M 

A.O. No: 48-00154-05001 H 

Docket No: WEST 81-232-M 

A.O. No: 48-00154-05002 S68 

Big Island Mine 

Appearances: Stephen P. Kramer, ., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner 

Dean W. Clark, Esq., for Respondent 

Before: Judge Moore 

The above docket numbers were consolidated for trial and involve 

two citations. Citation No. 337616 issued on October 15, 1980, alleges 

a violation of 30 C.F.R. 57.4-33·in that 11 there was a welding truck 

parked between the buildings at the No. 1 crusher with nobody in attendance 

and the oxygen and acetylene cylinders were not shut off." Citation No. 

337799 was issued on July 10, 1980 (there was no explanation of the 

numbering sequence) and alleges a violation of 30 C.F.R. 57.15-5 in that 

"two employees working for Mountain West Construction were observed 75 

to 100 feet in the air not using their safety belt and line. The men 

were putting bolts and nuts in the steel beams. The two beams had 

already been connected. 

Very little may be said as to Citation No. 337616. The inspector 

saw the welding cart with the oxygen and acetylene lines running into 

the fourth or fifth floor of the building. An employee of the mine 

operator, (Mountain West was not the operator but an independent contractor) 

went in the building came out again and shut off the oxygen and acetylene 

cylinders and the inspector assumed that there was nobody in the building 

and that the torch was not in use. Later testimony developed the fact 

that the torch was in use on an intermittent basis and that it was 

attended at all times. The workmen were putting pipe through the building 

and using the torch to cut pipe and cut the.metal supports. They would 

turn the torch off when they were not using it,but would not go four or 

five flights down the steps to shut off the gas at the cylinder. In my 

opinion the standard does not require that they go back to the cylinders 

every time they decide not to use the torch for a short period of time.· 

This citation is vacated. 

Citation No. 337799 presents a different problem. The standard, 

30 C.F.R. 57.15-5 states: 

1091 
"safety belts and lines shall be worn when men work where there is 

danger of falling: a second person shall tend the lifeline when 

bins, tanks, or other dangerous areas are entered." 

The standard clearly states that if there is a danger of falling, 

belts and lines shall be worn. MSHA does not so interpret it, however, 

so far as high steelwork' is concerned. 

While I am not sure it is a universal practice throughout MSHA, 

here in southern Wyoming, which is notorious for its high winds, it is 

considered hazardous to have a high ironworker tied with a safety line 

while the crane is hoisting beams to be attached to others, than to have 

him free to move in case the beams should be blown toward him. The MSHA 

position is that the workman does not have to use his safety line until 

the new beam is in place and one or two bolts have been fitted to hold 

the beam in place. When the bolts are being tightened, however, and 

perhaps torqued, the workman is supposed to have his line attached. 

In the instant case the inspector saw two men, 75 to 100 feet in 

the air, sitting on an "I" beam without their lines attached. Someone 

in the area told the inspector that the men had finished connecting the 

iron together and were now tightening the bolts. He issued the citation 

and imminent danger order at the time. The inspector does not remember 

who he talked to, but it was a supervisor for Mountain West. The company 

witnesses said that they classified their high iron workers in two 

distinct groups. One group would go up and connect the steel beams with 

two bolts at each end. The bolt~ were not tightened so as to leave 

the structure with sufficient flexibility so that more beams could be attached. 

When the connectors are finished, they leave the structure and different 

workers climb up to tighten the bolts with impact wrenches. This second 

group of workers use safety belts, whereas the first group does not. 

The evidence indicates that at the time of the citation, the workers 

observed by the inspector were connectors rather than bolters. Under 

the MSHA policy, they were not required to have safety lines at:tached 

and if the unknown Mountain West employee had told the inspector that 

they were connecting rather than bolting the inspector would 

not have issued the citation. 

While it bothers me that MSHA has in effect, modified a safety 

standard by interpretation, I do not view my role in these proceedings 

as one of a prosecutor charged with strict enforcement of the Act. The 

Congress gave that job to the Secretary of Labor, and if he chooses to 

apparently relax a standard in the interest of safety, I will not second 

guess him. Under the Secretary's policy, however, no violation occurred 

in the instant case and the citation and order are accordingly vacated. 

The above proceedings are dismissed. 

1092 

~(. 9?? ~JJi, Charles C. Moore, Jr. 

Administrative Law Judge 
Distribution: By Certified Mail 

Stephen P. Kramer, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Dean W. Clark, Esq., 145 North 1st East Street, Green River 0 

WY 82935 

1093 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 8 - \982. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

APPLICATION FOR TEMPORARY 

REINSTATEMENT 

on behalf of GEORGE D. JUSTICE: 

Applicant 

v. 

CANADA COAL COMPANY, INC., 

Respondent 

Docket No. KENT 82-111-D 

Case No. PIKE CD 82-10 

No. 2 Mine 

DECISION AND ORDER DENYING APPLICATION 

FOR TEMPORARY REINSTATEMENT 

On January 22, 1982, Mr. George D. Justice, purportedly 

a miner, filed a complaint of discharge with the Secretary 

of Labor, alleging that his discharge was in violation of 

section lOS(c) (1) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 801 et. seq., the "Act". More than 

four months later, on June 3, 1982, the Secretary filed an 

Application for Temporary Reinstatement on behalf of Mr. 

Justice under the provisions of section lOS(c) (2) of the Act 

and Commission Rule 44 (a) , 29 C.F. R. § 2700. 44 (a) (as 

amended). 

Under amended Commission Rule 44(a), an application for 

temporary reinstatement must state the Secretary's finding 

that the miner's complaint of discrimination, discharge, or 

interference was not frivolously brought and must be accompanied by a copy of the miner's complaint, an affidavit setting forth the Secretary's reasons for his finding and proof 

of service upon the operator. 

The application herein contains a finding by the Secretary that the miner's complaint was not frivolously brought, 

and is accompanied by proof of service upon the operator and 

a copy of what purports to be the miner's complaint. While 

the application is also accompanied by the affidavit of 

Michael Yanak, Jr., an employee of the Secretary (Mine 

Safety and Health Administration) / that affidavit does not 

set forth the Secretary's "reasons" for his finding that the 

miner's complaint was not frivolously brought, as required 

by Commission Rule 44(a). A copy of the affidavit is attached 

hereto as Exhibit "A". 

"Reasons" are essentially statements made to explain or 

justify an action or decision and which provide a rational 

and sufficient basis for such action or decision. See 

1094 
The American Heritage Dictionary of the English Language, 

Houghton Mifflin Co., 1976. The affidavit here at issue 

essentially sets forth only vague conflicting uncorroborated 

allegations. Considered as a whole, it cannot be said that 

the affidavit sets forth sufficient grounds to explain, 

justify, or provide a rational and sufficient basis for the 

Secretary's finding that the miners complaint was not frivolously brought. 

Accordingly, the Application for Temporary Reinstatement 

must be denied. 

Distribution~ By 

Jack T. Page, Esq., KY 41501 

George D. Justice, Phyllis, KY 41554 

Thomas P. Piliero, ., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 

1095 
EXHIBIT "A" 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

IN THE MATTER OF: 

SECRETARY OF LABOR, 

on behalf of 

GEORGE D. JUSTICEv 

Applicants 

CANADA COAL COMPANY, INC., 

No. 2 Mine, 

Respondent 

Application for Temporary 

Reinstatement 

Case Noo PIKE CD 82-10 

Docket Noo KENT 82-111-D 

A F F I D A V I T 

Commonwealth of Virginia 

County of Arlington 

Michael Yanak, Jr., being first duly sworn, deposes and 

states: 

1. I am a Mine Safety and Health Specialist on the staff 

of the Off ice of Technical Compliance and Special Investigation, 

Mine Safety and Health Administration, located at 4015 Wilson 

Boulevard, Arlington, Virginia 22203. 

2. As a Mine Safety and Health Specialist, I had the 

responsibility of initially reviewing the report of investigation 

of the above-captioned matter. 

3. My review of the report of investigation disclosed 

the following: 

1096 
2 

(a) At all relevant times herein mentioned, Respondent 

Canada Coal Company, Inc., did business and operated the No. 

2 Mine in the production of coal and therefore is an "operator" 

as defined in Section 3{d) of the Federal Mine Safety and Health 

Act of 1977 (Act) • 

(b) At all relevant times herein mentioned, Applicant 

George D. Justice, was employed by respondent as a mechanic 0 

assigned to work at the subject No. 2 Mine and was a "miner" 

as defined in Section 3{g) of the Act. 

(c) The subject No. 2 Mine located in or near Kimper 0 

Pike County u Kentucky 0 is a '

1

mineu• as defined in Section 3 (h) (1 

of the Act, the products of which enter or affect commerce. 

(d) Mr. Justice was hired by respondent in August 

1981, and continued to work in respondent's employ until he 

was discharged on or about January 21, 1982. 

(e) On or about January 21, 1982, Mr. Justice was 

working in the No. 2 section of the subject mine during the 

third shift. During the course of that shift, Mr. Justice 

required the need for a sanitary toilet. 

(f) Mr. Justice alleges that he made a diligent search 

but was unable to locate a sanitary toilet on the No. 2 section 

of the subject mine. He therefore advised his immediate supervisor 

of that circumstance and requested transportation to the surf ace 

for the purpose of using the surface toilet facilities. His 

request was refused. Mr. Justice then repeated his request 

for transportation to the Company Safety Inspector. His request 

'1097 
3 

was refused. Mr. Justice then repeated his request for transportation to the Third Shift Mine Foreman. The Third Shift 

Mine Foreman arranged transportation to the surface for Mr. 

Justice. 

(g) Once on the surface Mr. Justice was advised to 

remain there in order to await the General Superintendento 

Thereafteru the General Superintendent discharged Mro Justice, 

alleging that a sanitary toilet was available on the No. 2 

section. 

(h) On January 22, 1982u Mr. Justice timely filed 

a complaint of discharge with the Mine Safety and Health Admini 

stration alleging that his discharge was in violation of Section 

lOS(c) of the Federal Mine Safety and Health Act of 1977. 

5. Based upon the foregoin~ information the Secretary 

of Labor, through his authorized designees, determined that 

the complaint of discharge filed by George D. Justice was not 

frivolously brought. 

Taken, subscribed and sworn before me this ~,...J, day 

of June, 1982. 

Notary Public 

My commission expires: 

1098 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JU~ g - \9B2 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. LAKE 80-11-M 

Petitioner A.C. Noo 11-02360-05002 

v. 

MACON COUNTY MATERIAL, me .• 

Respondent 

Macon County Material, Inco 

(Dredge and Mill) 

Appearances: 

Before: 

DECISION 

Leonard A. Grossman, Esq., Office of the Solicitor~ 

U.S. Department of Labor, for Petitioner; 

Charles C. Hughes, Esq., for Respondent. 

Administrative Law Judge William Fauver 

This proceeding was brought by the Secretary of Labor under section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et~·' for assessment of civil penalties for alleged violations of mandatory safety standards. The case was heard at St. Louis, Missouri. Both 

parties were represented by counsel, who have submitted their proposed 

findings, conclusions, and briefs following receipt of the transcript. 

Having considered the contentions of the parties and the record as a 

whole, I find that the preponderance of the reliable, probative, and substantial evidence establishes the following: 

FINDINGS OF FACT 

1. At all pertinent times, Respondent, Macon County Material~ Irie., 

operated a sand and gravel pit and plant known as the Macon County, Inc., 

Dredge and Mill, in Macon County, Illinois, which produced sand and gravel 

for sales in or substantially affecting interstate commerce. 

2. Respondent extracted material from its pit by a dragline and stockpiled the material at various places in its plant. Front-end loaders then 

carried the material to conveyor belts for processing through a series of 

screens, washers, and classifiers before the material was stockpiled for 

sale and shipment to customers. 

1099 
3. The pit and plant were about three-quarters of a mile apart. 

Respondent employed about 15 people with experience ranging from 2 years to 

30 years. The pit and plant operated three overlapping shifts per day. The 

first shift was 4:30 a.m. to 1:30 p.m., the second 1 p.m. to 10:30 p.m., 

and the third 7 a.m. to 5 p.m. The draglines, loaders, trucks .• mechanics, 

and electricians operated only during the third shift. 

4. On July 17, 1979, a foremen, Mike Hamrich, removed a guard from the 

5/8 belt conveyor tail pulley and a guard from the Mason sand tail pulley in 

order to run the belts under load to see where the belts might need adjustment. In violation of company safety policy, Mr. Hamrich failed to replace 

the guards after this test. 

5o Also on July 17~ the front-end loader operator, Les Patrick, disconnected the backup alarm on his equipment. This action was in violation 

of company safety policy. 

6. Also that morning, Respondent's electrician, Mark Sadorous, unlocked 

the gate to No. 3 7,200-volt transformer station to work on the transformerc 

When he left the station he failed to lock the gate to keep out unauthorize<" 

personnel. This action violated company safety policyo 

7. Later in the day, on July 17, 1979, Federal Inspector Bill Henson 

inspected Respondent's pit and plant. 

8. The inspector observed that tbe 5/8 belt conveyor tail pulley was 

operating without a guard. He observed one person cleaning in the area. 

The tail pulley was about 5 feet above the surface. Inspector Henson charged 

Respondent with a violation of 30 C.F.R. § 56.14-6 (failure to install guards 

on moving machinery parts). Citation No. 362872 reads in part: "The tail 

pulley guard on the 5/8 belt conveyor was not in place." The cited condition was abated promptly by placing a guard on the tail pulley. 

9. The inspector also observed that the guard was missing from the Mason 

sand belt conveyor tail pulley, which was in operation. He observed no one 

in the ar~a during the inspection, but it was likely that miners would pass 

through it. The tail pulley was about 5 feet above the surface. Inspector 

Henson charged Respondent with a violation of 30 C.F.R. § 56.14-6 (failure to 

install guards on moving machinery parts). Citation No. 362873 reads in part: 

"The tail pulley guard on the mason sand belt conveyor was not in place." 

The cited condition was abated promptly by installing a guard on the tail 

pulley. 

10. The inspector next observed the 980 Caterpillar front-end loader 

being operated in reverse without an automatic reverse signal. He observed 

that the back-up alarm on the loader was disconnected. There was an 

obstructed view to the rear of the loader and an observer was not present 

to signal the operator when it was safe to travel in reverse. Inspector 

Henson charged Respondent with a violation of 30 C.F.R. § 56.9-2 (failure 

1100 
to correct equipment defects). Citation No. 362874 reads in part: "The 

automatic reverse signal alarm on the 980 Cat. End loader was not operable." 

The cited condition was abated immediately by reconnecting the alarm. 

11. Finally, the inspector observed that the gate to the No. 3, 

7,200-volt transformer station was unlocked. The transformer was energized. 

Inspector Henson charged Respondent with a violation of 30 C.F.R. § 56.12-68 

(failure to keep transformer enclosures locked). Citation No. 362875 reads 

in part: "The No. 3 transformer station was not locked to prevent unauthorized entry." The cited condition was abated promptly by locking the gateo 

12. Respondent has received safety awards from MSHA and the National 

Sand and Gravel Association in 10 of the 11 years of operation" There has 

been only one injury resulting in lost work time. Respondent had received 

only one citation before the instant inspection and has never received an 

employee safety complaint. 

DISCUSSION WITH FURTHER FINDINGS 

Based on citations issued on July 17, 1979, the Secretary has charged 

Respondent with two violations of 30 C.F.R. § 56.14-6, which provides: 

"Except when testing the machinery, guards shall be securely in place while 

machinery is being operated." 

The Secretary argues that the guards for the tail pulleys on the 5/8 

conveyor and the Mason sand belt were not in place while the equipment was 

in operation, and that there was no evidence that the equipment was being 

tested at the time of the inspection. 

The Secretary proposes a penalty of $36 for each of these violations. 

Based on a citation issued on July 17, 1979, the Secretary has charged 

Respondent with a violation of 30 C.F.R. § 56.9-2, which provides: "Equipment defects affecting safety shall be corrected before the equipment is 

used. 11 

The Secretary argues that the 980 CAT front-end loader was operating in 

reverse without an operable automatic warning device and the operator had 

an obstructed view to the rear with no observer to signal the operator when 

it was safe to back up. 

The Secretary proposes a penalty of $28 for this violation. 

Based on a citation issued on July 17, 1979, the Secretary has charged 

Respondent with a violation of 30 C.F.R. § 56.12-68, which provides: "Transformer enclosures shall be kept locked against.unauthorized entry." 

The Secretary argues that, at the time of the inspection, the gate to 

the No. 3 7,200-volt transformer station was unlocked and seeks a penalty 

of $40 for this violation. 

1101 
Respondent has admitted to the facts alleged in each citation, but 

argues that it should be relieved of liability because each of the violations 

was committed by an experienced employee who acted contrary to company safety 

policy and that the company had no knowledge of or reason to know of the 

violations. 

The Federal Mine Safety and Health Act of 1977has been construed to be 

a strict statute (Warner Company, 1 MSHC 2446 (June 9, 1980))~ so 

that an operator 9 s liability is not conditioned upon fault (Ace Drilling 

Coal 1 MSHC 2357 (April 24, 1980); United States Steel Corp.s 

MSRC September 17, 1979); and Peabody Coal Co., 1 MSHC 2215 

(October 31, 1979)). As stated in Ace Drilling, supra, the actions of an 

employee are deemed to be the operator 9 s actions for purposes of determining 

liability for conduct regulated by the Act (at 2358). While an employee's 

negligence may be considered in assessing penalties; it has no bearing on 

the fact of violation (El Paso Rock Quarries, 2 MSHC 1132, and 1135 

(January 29~ 1981)). 

Each of the violations here constituted a serious hazard and could 

ly contribute to a mine accident causing death or serious bodily 

injury. 

Before the inspection, Respondent had an excellent safety record insofar 

as reported accidents and conditions disclosed by inspections. However, 

to the extent of the violations revealed by the inspection on July 17, 1979, 

the company's safety rules, policies, training, and supervision had not been 

effective and can be improved. 

Considering the statutory criteria for assessing penalties, and giving 

weight to the company's excellent prior history and its good faith efforts 

to abate the conditions cited, it is determined that nominal penalties are 

justified in this case. These may serve as a record and formal reminder to 

the company that steps are needed to achieve more effctive compliance with 

the safety standards promulgated under the Act. 

CONCLUSIONS OF LAW 

1. The undersigned judge has jurisdiction of the parties and subject 

matter of this proceeding. 

2. On July 17, 1979, Respondent violated 30 C.F.R. § 56.14-6 as alleged 

in Citation No. 362872; violated 30 C.F.R. § 56.14-6 as alleged in Citation 

No. 362873; violated 30 C.F.R. § 56.9-2 as alleged in Citation No. 362874; 

and violated 30 C.F.R. § 56.12-68 as alleged in Citation No. 362875. 

3. Based upon the statutory criteria for·assessing a civil penalty for 

a violation of a mandatory safety standard, Respondent is assessed a penalty 

of $25 for each of the above four violations. 

1102 
ORDER 

WHEREFORE IT IS ORDERED that Respondent, Macon County Material, Inc., 

shall pay the Secretary of Labor the above-assessed civil penalties, in the 

total amount of $100.00, within 30 days from the date of this decision. 

U/~~v~ WILLIAM FAUVER, JUDGE 

Distribution: 

Charles C. Hughes, Esq., Welsh, Kehart & Shafter, P.C., P.O. Box 871, 

457 Citizens Building, Decatur, Illinois 62525 

William C. Pasternack, Esq., US Department of Labor, Office of the 

Solicitor, 230 S. Dearborn St., Chicago, IL 60604 

1103 
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, 

HINE SAF:CTY AND HEALTH 

ADMINISTRATIOi'J (MSHA) , 

Petitioner 

v. 

UNITED STATES STEEL CORPORATION, 

Respondent 

UNITED STATES STEEL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AJ.~D HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

LOCAL UNION NO. 1938, DISTRICT 33, 

UNITED STEELWORKERS OF AMERICA, 

Representative of the Miners 

Civil Penalty Proceeding 

Docket No. LAKE 82-35-H 

A.O. No. 12-00820-05031 

Minntac Mine 

Contest of Order 

~ocket no, LAKE 82-6-Rl1 

Order No. 486720; 9/10/81 

Minntac Hine 

DECISION 

Appearances: 

Before: 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, on behalf of 

the Secretary of Labor; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, on 

behalf of United States Steel Corporation; 

Clifford Kasenan, Safety Chairman, Local Union 1938, 

United Steelworkers of America, Virginia, i.1innesota, on 

behalf of the Representative of the Hiners. 

Administrative Law Judge Broderick 

STATEHENT OF THE CASE 

The two cases have been consolidated since they both involve the 

same order of withdrawal. The notice of contest filed by U.S. Steel 

1104 
challenges the validity of the order and the civil penalty proceeding 

seeks a penalty for the violation charged in the order. Pursuant to 

. notice, a hearing was held on the consolidated cases in Duluth, 

Minnesota on March 24, 1982. Federal mine inspector Thomas Wasley and 

Terry Martinson testified on behalf of the Secretary. Nick Brascugli, 

Herbert Brandstro~. Randall Pond and Phillip Anderson testified on 

behalf of U.S. Steel. No witnesses were called by the Representative 

of the Miners. The Secretary and U.S. Steel have filed posthearing 

briefs. Based on the entire record and considering the contentions of 

the , I make the following decision. 

FINDINGS OF FACT 

1. At all times pertinent to this proceeding, U.S. Steel was the 

operator of the Hinntac Plant, a mine as defined in the Federal iUne 

Safety and Health Act of 1977. The subject plant produces goods which 

enter interstate commerce. 

2. U.S. Steel is a large operator, and the assessment of a 

will not affect its ability to continue in business. 

3. A total of 180 violations were assessed against the subject 

mine within the 24 months prior to the violation involved herein, of 

which 170 have been paid. 

4. Respondent demonstrated good.faith in abating the condition 

after the issuance of the order involved in this proceeding. 

5. An order of withdrawal had been issued under section 104(d)(l) 

of the Act on March 31, 1981, for an alleged violation of 30 C.F.R. 

§ 55.15-5. 

6. The order of withdrawal referred to in Finding 5 was issued 

during a regular mine inspection which was completed prior to the 

issuance of the order involved in this proceeding. 

7. The Inspector was 

March and September, 1981. 

inspection of the facility 

1981. 

regularly in the subject facility between 

However, he did not carry out a complete 

between March 31, 1981 and September 10, 

8. The subject plant cont~ins an agglomerator in which iron ore 

concentrates are formed into pellets, fired at high temperatures, cooled, 

and shipped out to steel mills. 

9. Cooling of the pellets takes place in.a large structure called 

a cooler where outside air is drawn in through large fans to cool the 

bed of pellets. 

1105 
10. The cooler is a vessel with a donut-like shape. The heated 

pellets are dumped into the cooler on to castings or pallets, which 

rotate slowly around the cooler, following which the pallets are 

tipped to a vertical position and the taconite pellets are dumped into 

a bin below the cooler. 

11. There is a door to the cooler through which maintenance 

personnel go in to inspect or make repairs on the inside of the vessel. 

12. On June 10, 1981, a maintenance crew entered the cooler to 

patch a burned-out area on the load wall of the c9oler. 

13. Before any of the men went into the cooler they dropped 

plywood boards to cover the openings which resulted from one of the 

pallets being locked in the vertical position. A form was erected in 

the shop, placed in the cooler and the patch was made on the wall. 

The entire operation took about three hours and a half. The crew was 

in the cooler about 45 minutes. 

14. The crew left the cooler, after which the foreman inspected 

the job and handed out the plywood sheets. After handing out the last 

sheet of plywood he pulled himself from the cooler. He was not wearing 

a safety belt at the time. 

15. When the plywood was removed there were two openings resulting from the pallet being in the vertical position: one was 51 inches 

by 44 inches by 8 feet; the other was 11-1/2 inches by 6 inches by 

8 feet. The openings go to the dump zone, more than 18 feet below. 

16. On September 10, 1981, Inspector Hasley issued a withdrawal 

order under section 104(a)(2) of the Act charging an unwarrantable 

failure to comply with 30 C.F.R. § 55.15-5. 

17. The condition was abated and the order terminated on 

September 15, 1981, when U.S. Steel instructed employees entering the 

cooler to use a safety belt when a danger of falling into the cooler 

exists. 

13. At the time the order was issued, U.S. Steel had a company 

safety rule requiring the use of a safety belt where there is danger of 

falling 5 feet or more. 

REGULATION 

30 C.F.R. § 55.15-5 provides as follows: "Safety belts and lines 

shall be worn when men work where there is danger of falling; a second 

person shall tend the lifeline when bins, tanks or other dangerous 

areas are entered. 11 

1106 
1. Did the Secretary establish the prerequisites for a 104(d)(2) 

order, i e., was there an intervening "clean inspection" between the 

104(d) order and the 104(d)(2) order? 

2. Is 30 C.F.R. § 55.15-5 impermissibly vague? 

3. If it is not, did the evidence establish a violation of 

30 C.F.R. § 55.15-5? 

4. If a violation was established, was it caused 

unwarrantable failure to comply with the standard in 

operator's 

5. If a violation was established, what is the appropriate penalty 

therefor? 

CONCLUSIONS OF LAW 

1. The U.S. Steel Corporation is sub]ect to the ions of the 

Federal Mine Safety and Health Act of 1977, in the operation of the 

Minntac Plant. 

2. The undersigned Administrative Law Judge has jurisdiction over 

the parties and subject matter of this proceeding. 

3. The Secretary established prima facie that there was no clean 

inspection of the facility intervening between the 104(d)(l) and the 

104(d)(2) orders. 

Although U.S. Steel did not specifically raise the issue in its 

pleadings, the question whether there.was an intervening clean inspection between the prior 104(d)(l) order and the 104(d)(2) order involved 

herein is properly before me. It is MSHA's obligation to establish 

prima facie the absence of an intervening clean inspection in order to 

sustain the order being challenged. Secretary v. CF & I Steel 

Corporation, 2 FMSHRC 3459. Unfortunately, the bearing on 

this issue is skimpy, and possibly conflicting. The Inspector testifed: 

Q. Now, when you decided to issue the - the 

104(d)(2) order, did you know whether there was a prior 

intervening clean inspection that had taken place since 

your issuance of the 104 (d) (1) order? 

1107 
A. There was not no clean inspection, no. 

Q. And how do you know that? 

A. Cuz I was the inspector. I issued the last one. 

(Tr. 28). 

* * * * * 

Q. Okay. Now did you inspect Hinntac operations 

between March 3rd, 1981 -- March 31, 1981 and September 10th, 

1981? 

A. Oh~ sure. 

Q. Were you there every day? 

A. No, not every day. 

Q. Were you there regularly? 

A. Just about. 

Q. And did you cover the entire facility? 

A. Um, I have covered the entire facility, yes. 

* * * * * 

Q. So between March 3rd, 1981 -- March 31, 1981, and 

September 10, 1981, you had been entirely through the 

Minntac Plant? 

A. Are you talking about a complete thorough 

inspection? 

Q. I'm asking you if you went to every area in the 

Minntac Plant between March 31st, 1981, and September 10th, 

1981. 

A. This was a different inspection on -- in March. 

That one was completed. 

Q. Between 

A. Then we started another inspection. 

1108 
Q. But between March 31st, 1981, and September 10th, 

1981, you had gone through the entire :Minntac plant? 

A. Well, that's possible I went through there. 

(Tr. 54). 

I conclude, based on the above testimony, that HSHA established 

prima facie that there was not an intervening clean inspection between 

the (d)(l) and the (d)(2) orders. U.S. Steel did not offer any evidence 

to rebut the prima facie showing. 

4. The mandatory standard in 30 C.F.R § 55.15-5 is not 

impermissibly vague. 

DISCUSSION 

The standard in question has been construed by the Conunission in 

at least one case. Secretary v. Kerr McGee Corporation, 3 FMSHRC 2496 

(1981). Although the issue of vagueness was apparently not raised, the 

Commission did refer to the general language of the regulation: 11As 

contrasted with more detailed regulations, it is the kind made 

and brief in order to be broadly adaptable to myriad circumstances. 

From an operator's standpoint, one benefit of this flexible regulatory 

approach is that it affords considerable leeway in adapt,jng safety 

requirements to the variable and unique conditions encountered in 

different mines." Id, at 2497. 

U.S. Steel argues that the regulation is deficient because (1) it 

does not specify any distance or depth for the possible fall and 

(2) no standards are set for the probability of a fall. I conclude 

that the words "danger of falling" (1) eliminate the de minimus situation, i.e., a fall of a few inches or feet and (2) are sufficiently 

specific to apprise reasonably prudent operators when safety belts are 

required. I also conclude that the standard requires safety belts to 

be worn during the entire time when a danger of falling exists. Thus, 

one exiting a vessel must wear his belt until he has reached a point 

in his exit where the danger is passed. 

5. A violation of 30 C.F.R. § 55.15-5 was established by the 

evidence in this case. 

DISCUSSION 

Once the plywood flooring was removed, a workman in the cooler 

could fall a distance of more than 18 feet through the larger opening 

created by the pallet being in a vertical position. It is true that 

the foreman in this instance stated that he positioned himself in such 

a way when exiting the cooler that he would fall back on the pallet 

1109 
rather than toward the large opening. It is also true that the foreman 

had crawled out of similar coolers for years without injury, that he 

had worked on construction jobs up to 180 feet in the air without a 

safety belt, and that it was his opinion that a safety belt was not 

needed in the circumstances of this case. Whether a danger of falling 

exists must be determined with reference to the ordinary working person. 

Considering the foreman's testimony describing how he climbed out of the 

cooler (Tr. 115, 119-121), it seems evident to me that an ordinary 

working person could have slipped and fallen through the large opening. 

There was (and is) a danger of falling in exiting the cooler in question, 

Failure to wear a belt is a violation of the standard. 

6. The violation was caused by the unwarrantable failure of the 

operator to comply with the standard. 

ION 

The violation was committed by a foreman, a representative of 

management. He should have known of the hazard and should have taken 

steps to avoid it. Zeigler Coal Company, 7 IBMA 280 (1970); Cleveland 

v. Secretary, 4 FMSHRC 171 (1982). 

7. I conclude that the violation was serious, since a serious 

injury could have resulted. The violation was the result of the 

operator's negligence. I conclude that an appropriate penalty for the 

violation is $1,250. 

ORDER 

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

IT IS ORDERED that Order No. 486720 issued September 10, 1981, is 

AFFIPJ1ED. IT IS FURTHER ORDERED that U.S. Steel Corporation, within 

30 days of the date of this decision, pay the sum of $1,250 as.a civil 

penalty for the violation of 30 C.F.R. § 55.15-5 charged in the order. 

J(J • .A,tU:~ A-f}rvdR..1/'l e_,Jt 

James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Louise Q. Symons, Esq., Attorney for United States Steel Corporation, 

600 Grant Street, Room 1580, Pittsburgh, PA 15230 

Clifford Kasenan, Safety Chairman, Local Union 1938, United Steelworkers 

of America, 307 First Street North, Virginia, MN 55702 

1110 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

MATHIES COAL COMPANY, 

Vo 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)~ 

and 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Contestant 

. : 

Contest of Citation 

Docket No. PENN 82-3-R 

Citation No. 1142334; 9/22/81 

Mathies Mine 

UNITED MINE WORKERS OF AMERICA, 

Respondents 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. PENN 82-15 

Petitioner A.C. No. 36-00963-03181 

v. 

Mathies Mine 

MATHIES COAL COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

David T. Bush, Esq., Office of the Solicitor, U.S. Department 

of Labor, Philadelphia, Pennsylvania, for the Secretary of 

Labor; 

H. Juanita M. Littlejohn, Esq., Pittsburgh, Pennsylvania, for 

Mathies Coal Company. 

Judge Lasher 

A hearing on the merits of this consolidated proceeding was held in 

New Kensington, Pennsylvania, on April 8, 1982, at which both parties were 

represented by counsel. On April '8, 1982, after consideration of the 

evidence submitted by both parties and proposed findings of fact and conclusions of law proferred by counsel during closing argument, a decision was 

entered on the record. This bench decision appears below as it appears in 

the official transcript aside from minor corrections. 

1111 
This matter is comprised of a contest proceeding filed 

by Mathies Coal Company, herein Mathies, on October 9, 1981, 

under section 105(d) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq.1 herein the Act, and a 

civil penalty proceeding initiated by the Secretary of Labor 

by a filing on December 7, 1981, under section 110 of the Acto 

The citation involved in both proceedings which were 

consolidated for hearing and decision by my order dated 

April 1, 1982, is numbered 1142334 and was issued by MSHA 

Inspector Francis E. Wehr on September 22, 19810 The 

allegedly violative condition described in the citation is 

that~ "One of the four sanding devices provided for the 

Noo 4 self propelled personnel carrier (mantrip) was 

inoperative which was going to transport personnel from 

Gamble No. 1 to 4 face, 24 butt parallel section ID054. The 

sander was empty due to valve that was stuck openo Foreman 

in charge Ron Pietrobonio Notice to provide safeguard 

lOWC 12-01-7?. o 11 The citation also alleged, in addition to the 

purported violation of 30 C.F.R § 7501403 9 that said violation 

was of such a nature that it could significantly and substantially contribute to the cause and effect of a mine safety 

or health hazard. This latter allegation was accomplished on 

the face of the citation by the placement of an X in an 

appropriate box. The notice to provide safeguard referred to 

on the face of the citation is dated December 1, 1972, 

(Exhibit lb) and it provides: "Sanding devices were not 

sufficient to supply sand to all wheels in both directions of 

travel on Lee-Norse Nos. 1, 2, 3 and 4 and Galis Nos. 5, 6, 

7, 8 and 9 self propelled mantrip cars." This obviously has 

reference to a specific situation existent at Mathies on 

December 1, 1972. Subsequently, this safeguard notice was 

amended to provide more reasonable guidance and by citation 

issued August 12, 1980, the original safeguard notice was 

modified to provide as follows: "This is to modify safeguard 

number 1 JWC dated 12/01/72 to include that all mantrips at 

this mine.will be provided with properly maintained sanding 

devices sufficient to sand all wheels in both directions of 

travel." 

If not specifically established in the record, I find 

from the pleadings herein that on or about 8:20 a.m., on 

September 22, 1981, approximately five minutes after the 

citation was issued that Inspector Wehr issued a termination 

of the citation which indicated: "Adjustment [sic] were made 

on the valve and sander fill with sand returning the sander 

to a operative condition." 

The general issues involved are whether a violation of 

section 75.1403 of 30 C.F.R. occurred as alleged by Inspector 

1112 
Wehr and if so whether such violation was 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 again, if such violation occurred, the amount of 

civil penalty which should be assessed in consideration of the 

six standard statutory penalty assessment factors provided in 

the Act. 

Section .75.1403, a general statutory requirement repeated 

in the codified mandatory standards contained in CFR, provides: 

"Other safeguards adequatell in the judgment of an authorized 

representative of the Secretaryt to minimize hazards with 

respect to transportation of men and materials shall be 

providedo" Authority for the issuance of the aforesaid safeguard notice is contained in section 75.1403-1 and the specific 

requirement relating to sanding devices on self propelled 

personnel carriers is provided fqr in section 1403-6(b)(3). 

At the commencement of the hearing the parties provided 

general stipulations with respect to the ownership of the 

Mathies Mine wherein the alleged vio~ation occurred and jurisdictional agreements. They further stipulated with respect 

to four of the six penalty assessment criteria. Two witnesses 

testified for the Secretary of Labor, Coal Mine Inspector 

Francis E. Wehr and MSHA Supervisor William A Dupree. Malcolm 

Dunbar, Safety Supervisor at Mathies Mine, testified for 

Mathies. 

Inspector Wehr testified that on the morning of 

September 22, 1981, at approximately eight-fifteen a.m. he 

was standing on the clearance side of the mantrip in question, which I find-based on other testimony in the record-to 

be a Lee-Norse self propelled mantrip car, and observed the 

operator of this mantrip car-who, based upon subsequent 

testimony in the record, I find to be one Steve Nick-perform 

a safety inspection after which Mr. Nick engaged the trolley 

pole thereon. According to Inspector Wehr management personnel had previously left the area when this event occurred. 

After asking Mr. Nick if he was ready to go and receiving 

Nr. Nick's answer that he was ready to go but was waiting for 

the foreman to return, Inspector Wehr conducted his own 

inspection of the mantrip and determined that one of the 

four sanders thereon was malfunctioning. The foreman who had 

left the area had gone to find another person to ride with 

him on the mantrip. The mantrip was loaded with seven or 

eight miners at the time Inspector Wehr discovered the 

inoperative sander and was scheduled to travel from the area 

where it was observed by Inspector Wehr (called "the bottom") 

some sixty-five hundred feet to the section. (The bottom is 

marked point "A" on Joint Exhibit No. 1, a mine map, and the 

section is marked point "B" thereon). 

1113 
Inspector Wehr concluded that Mr. Nick, the operator, 

had performed his inspection of the mantrip based on his 

observation that Nick had pulled the levers controlling the 

sanders and had turned around and looked at various points on 

the mantrip, for example, the fire extinguisher. When 

Inspector Wehr checked the malfunctioning sander in question 

he determined that because a valve was stuck the sand contained in the container constituting part of the sander had 

been emptied. In other words there was no sand in the sander 

to be released in the event such might become necessary during 

the trip to the section. 

I footnote at this point that the record indicates that 

approximately one half a gallon of sand is contained in the 

sander and that there are sanders above each of the four wheels 

on the mantrip. The record also indicates that the sand is 

released on the tracks for the purpose of increasing friction 

when the brakes of the mantrip are applied thereby increasing 

the stopping power of the mantrip brakeso 

Inspector Wehr indicated that the sander would have been 

used in the course of going to the section because the mantrip 

would have had to change directions. Evidence in the record 

in further explanation of this testimony is to the effect that 

the mantrip uses only two sanders at any one time determined 

by the direction of travel of the mantrip. Thus if one sander 

is inoperable, fifty percent of the sanding capacity of the 

mantrip is withdrawn insofar as the same relates to its effect 

on stopping power. Wehr said Mr. Nick, the mantrip operator, 

did not indicate to him that there was a problem. 

Inspector Wehr determined that a violation occurred 

because the plunger (valve) was open and there was no sand in 

the sander. Thus, no sand could be applied to the rails. He 

indicated that he considered the violation to have resulted 

from the negligence of the mine operator because the condition 

of the sander should have been known and that as the operator 

checked it the violative condition should have been discovered. 

The Inspector indicated that he considered the violation to 

have been of the "significant and substantial" variety because 

of various factors which he. mentioned were prevalent in the 

haulageway. He testified that in addition to the sander not 

working there were hills and grades the mantrip would have to 

pass over to get to the working section and that the Mathies 

Mine is a "wet" mine which has pumps all along it's haulageways. Specifically, he indicated that point "D" on Joint 

Exhibit No. 1 gets water in it and that also point "G" gets 

water in it. I footnote at this point that Mathies' witness 

Malcolm Dunbar indicated that there is at least one location 

along the haulageway where water had been observed on the 

1114 
track. Mr. Dunbar did not recall the conditions on the 

track on September 22, 1981, and to the extent there is any 

substantial conflict between the testimony of Inspector Wehr 

and Mr. Dunbar on this particular point the more specific 

testimony of the Inspector is credited. 

The Inspector indicated that from point "A" to point 

"C" on the mine map there is a small down grade and at point 

"D" there is a dip. According to Mr. Dunbar, between point 

"D" and "E" there is a 3.4 percent downgrade, from point "E" 

to point"F" the haulageway is fairly level and from point "F11 

to point "G" there is an S turn. With respect to visibility 

the record, in this case the testimony of Mr. Dunbar~ indicates that the mantrip (sometimes called portabus) has headlights and that while there is some low top the bus has 

windows at each end. 

The hazard envisioned by Inspector Wehr resulting from 

the impairment of the sander was a sliding derailment or 

"slamming" into some object on the tracks. The injuries 

expected by the Inspector would be broken bones resulting 

from crushing blows to people who were thrown around or thrown 

out of the mantrip. In Exhibit M-4, the gravity sheet which 

Inspector Wehr completed, Inspector Wehr indicated that the 

injury contemplated by the occurrence of the event in question 

could reasonably be expected to be "fatal." Although Mathiesin taking his deposition as well as at hearing-has challenged 

Inspector Wehr's conclusion as to projected injuries from the 

occurrence of the anticipated hazard (Exhibit C-6), I conclude 

that Inspector Wehr's testimony is reasonable, logical and 

credible under all the circumstances. His testimony in this 

connection was reinforced by the testimony of Mr. Dupree who 

indicated his awareness of fatalities which had occurred in 

Utah and Kentucky resulting from sander insufficiency. The 

Inspector also indicated his awareness of an accident where a 

miner sustained a back injury after being thrown from a mantrip. I therefore find that with respect to the injury 

aspect that it is established on this record that upon the 

occurrence of the hazard contemplated there exists a reasonable likelihood that a resultant injury would be of a 

reasonably serious nature. 

The Respondent, Mathies, contends that no violation 

occurred in the first place because at the time the Inspector 

observed the malfunctioning sander the mantrip operator had 

not completed his process of making safety checks. 

Significantly, Mathies did not call Mr. Nick as a witness. 

Mr. Nick would be the best witness in view of his exclusive 

knowledge with respect to the defense raised by Mathies. 

Mr. Dunbar testified that after the citation had been issued 

1115 
by Inspector Wehr he spoke to Mr. Nick and that Mr. Nick told 

him that he had completed all safety checks except for his 

check of the sanders. I conclude that the direct knowledge 

of the Inspector on this vital conflict must be found to 

overpower the less probative testimony of Mr. Dunbar. As 

pointed out by the Secretary on cross examination and readily 

admitted by Mr. Dunbar, Mr. Nick's disavowal to him with 

respect to not having completed his safety examination of the 

mantrip might have been with a view toward avoidance of disciplinary action. Secondly, Mathies 1 position on this point 

is damaged by virtue of its own system establishing 

responsibility for making these important safety checkso 

Mathies has a written policy placing the responsibility for 

such checks on the section foreman, in this case on Ron 

Pietroboni, who likewise did not testifyo In any event, like 

Mr. Dunbar, Mr. Pietroboni was not in the area at the time the 

defective sander was initially discovered by Inspector Wehr, 

when Inspector Wehr observed Mr. Nick making the safety check, 

when Inspector Wehr asked Mr. Nick as to the readiness of the 

mantrip, and when Inspector Wehr made his decision to issue 

the citation. 

Accordingly to Mr. Dunbar, the foreman 1 s responsibility 

for making safety checks can be delegated to others in the 

foreman's discretion. Although Mr. Dunbar testified that on 

September 22 he did not know who had the responsibility to 

make the safety check or who Mr. Pietroboni had delegated 

such responsibility to, nevertheless it was Mr. Nick who 

Mr. Dunbar conversed with to determine if the mantrip had 

been safety checked. I therefore c6nclude that Mr. Nick was 

the responsible person to make the safety checks on behalf of 

Mathies on the day in question, that he was observed by 

Inspector Wehr to make those checks, that he did advise 

Inspector Wehr that the mantrip was ready and that for some 

unspecified reason the safety check (1) was either not made 

as it should have been or (2) was negligently performed----SO-as 

not to have revealed the malfunctioning sander. Although I 

found Mr. Dunbar to be a sincere and knowledgeable witness 

his position from whi.ch to observe the critical event here 

was not as close as that of Inspector Wehr whose account of 

events I find no basis in the record to discount. I therefore conclude that the violation occurred as charged in the 

citation. The mere occurrence of the defective sander under 

mine safety law constitutes a violation since liability is 

imposed on a mine operator without regard to fault. 

ElPaso Rock Quarries, 3 FMSHRC 35, 38-39 (1981). 

Based upon Inspector Wehr's account, I find that Mathies 

was negligent necessarily in one of three possible regards 

raised by the circumstances: (1) in failing to specifically 

1116 
delegate the responsibility to make a safety check of the 

mantrip in question on September 22, 1981; or (2) in negligently conducting the safety check on the mantrip at that 

time; or (3) in the failure of the person to whom such 

responsibility had been delegated to inspect the sanders in 

question. Because the persons having the responsibility or 

who may have had the delegated responsibility did not testify, 

it is impossible to more specifically determine the person who 

was culpable in this instance. 

Although Respondent challenged the Inspectorvs testimony 

in various respects on the basis that it was inconsistent 

with testimony he gave in a prior deposition on October 21 9 

1981, I find that the discrepancies are not sufficient to 

result in a repudiation of the quality thereof. Briefly, 

Respondent during the hearing made a point with respect to 

the Inspector's testimony that he had not asked if a safety 

inspection had been performed on·the mantrip. It does appear 

that the Inspector was asked this question on page seventy-six 

(76) of the deposition (Exhibit C-5). Inspector Wehr 

answered the question by indicating that, "The individual 

(Mr. Nick) running it said it was okay." Subsequently, on 

the same page, the Inspector was asked why he didn't ask 

Mr. Nick if the safety inspection had been done. I construe 

his answer-which is not an articulation of precise thinking-to 

be that by asking Mr. Nick if the bus was ready to go the same 

subject matter was being solicited from Mr. Nick. Interplay 

between highly intelligent, articulate attorneys and sometimes 

less sophisticated witnesses frequently will result in 

ambiguities and surfaces inconsistencies. I find no basis, 

on the attempts made by Mathies in this case, to blur the 

otherwise credible testimony of the Inspector. 

We turn now specifically to the question whether or not 

the violation was of such a nature as can significantly and 

substantially contribute to the cause and effect of a mine 

safety or health hazard. In Secretary of Labor v. Cement 

Division, National Gypsum Company, 3 FMSHRC 822, 825 

(April, 1981), the Commission defined the phrase "significant 

and substantial violation" as being one, "if based upon the 

particular facts surrounding that violation, there exists a 

reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious 

nature." I previously found that the actual occurrence of 

the event or the hazard contemplated would likely result in 

an injury or illness of a reasonably serious nature. The 

question I see remaining under the National Gypsum test is 

whether or not the violation here contributed to the cause 

and effect of a mine safety hazard. The Commission in 

National Gypsum noted that the Act does not define the key 

1117 
terms "hazard" or "significantly and substantially." It was 

determined that the word hazard denotes a measure of danger 

to safety or health and that a violation "significantly and 

substantially" contributes to the cause and effect of a 

hazard if the violation could be a major cause of a danger to 

safety or health. The Commission also noted that the inspector's "independent judgment is an important element in making 

'significant and substantial' findings, which should not be 

circumventedo" The effect of the National Gypsum decision 

constituted a retreat from the view urged by the Secretary 

that a violation is of a significant and substantial nature 

so long as it poses more than a remote or speculative chance 

that an injury will result, no matter how slight that injury 

might beo Prior to National Gypsum most violations were 

treated as "significant and substantial. 11 The National Gypsum 

case elevated significant and substantial violations to a 

middle ground between the technical non-serious category of 

violations and "imminent danger" violations. I footnote here 

that my own view prior to passage of the 1977 Act was that the 

phrase "as could significantly and substantially contribute to 

the cause and effect of a mine safety or health hazard" was a 

phrase of art which had specific meaning under the 1952 Act 

which had been picked up in its entirety under the 1969 Act 

and under normal rules of statutory construction, absent 

input by interested legislators on both sides of the aisle, 

would have transferred a meaning carrying a greater degree of 

seriousness than the intermediate ground chosen by the 

Commission after the passage of the 1977 Act. In fleshing 

out its holding in National Gypsum the Commission did indicate 

that "something more than the violation of a standard itself 

is required." 

In view of the National Gypsum decision I conclude that 

the Secretary in this case has carried its burden of proof 

with respect to its "substantial and significant" allegation 

by showing the wetness, albeit occasional, of the haulageway, 

the curves and down grades in the mine and the intrinsic 

danger of haulage travel itself. A violation which affects 

the braking capacity of a vehicle which carries human beings 

under the circumstances described in this case is a relatively 

serious violation by its very nature. 

I will comment on the failure that I believe occurred in 

the record of this proceeding at this point. There was no 

showing that the Mathies Mine had an unusual number of sanding 

violations or of braking accidents. There was no expert 

testimony with respect to the stopping distance loss which 

would occur by the loss of one sander or two. There is no 

indication of the speed which mantrips ordinarily travel. The 

mechanics of how the violation would contribute to the cause 

1118 
and effect of a violation or accident was not developed. 

Those deficiencies, however, are not found to totally offset 

the prima facie case which I conclude the Secretary established primarily through Inspector Wehr's testimony. 

Based upon the stipulation of the parties, I find that 

(a) this is a large coal mine operator which (b) proceeded in 

good faith to achieve rapid abatement of the violative condition after notification thereof and which (c) will not be 

adversely affected by the payment of penalty in terms of its 

ability to continue in business. Mathies, which has a total 

complement of five hundred and sixty-eight (568) miners working three (3) shifts, has a record of one thousand fifty-nine 

(1,059) previous violations for the twenty-four (24) month 

period preceding the commission of the violation in question. 

I've found that the coal mine operator was negligent in the 

commission of the violation. I 90 not find gross negligence 

or willfulness of any degree in the occurrence of the viola~ 

tion. I find that this was a moderately serious violation 

under all the circumstances and, as previously noted, have 

found that it contributed to the cause and effect of a safety 

hazard as charged by the Secretary. The Secretary, both in 

its administrative process and the penalty aspect of this 

case and in this hearing, has sought a penalty of a hundred 

and thirty ($130.00) dollars. I find no reason on the basis 

of this record to reduce or increase that amount. Accordingly, a penalty of one hundred and thirty ($130.00) dollars 

is assessed and Mathies is ordered to pay the same to the 

Secretary within thirty (30) days from the date of the written 

decision which I will subsequently enter incorporating this · 

bench decision. 

CONCLUSION OF LAW 

A violation which adversely affects the braking capacity of a 

personnel-carrying vehicle (mantrip) could significantly and substantially 

contribute to both the cause and effect of a mine safety hazard where such 

vehicle is expected to encounter wet conditions and to negotiate curves and 

downgrades while transporting miners along a mine haulageway. 

ORDER 

(1) Mathies Coal Company's Notice of Contest is found to be without 

merit, and Docket No. PENN 82-3-R is dismissed. 

(2) Mathies Coal Company, in Docket No. PENN 82-15 is ordered to pay 

the Secretary of Labor a civil penalty of $130 within 30 days from the date 

hereof. 

1119 
(3) All proposed findings of fact and conclusions or Law not expressly 

incorporated in this decision are rejected. 

Michael A. Lasher, Jr., Judge 

Distribution: 

David T. Bush, Esq., Office of the Solicitor, U.S. Department of Labor~ 

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

19104 (Certified Mail) 

H. Juanita M. Littlejohn, Esq., and Jerry F. Palmer, Esq., Consolidation 

Coal Company, 1800 Washington Road, Pittsburgh, PA 15241 

(Certified Mail) 

1120 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

3ECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner-Respondent 

v. 

MATHIES COAL COMPANY, 

Contestant-Respondent 

DECISIONS 

Civil Penalty Proceeding 

Docket No. PENN 82-5 

A.O. No. 36-00963-03171 

Contest of Citation 

Docket No. PENN 81-230-R 

Citation No. 1050403; 7/30/81 

Mathies Mine 

Appearances: Covette Rooney, Attorney, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the petitioner-respondent; 

H. Juanita M. Littlejohn, Esquire, Pittsburgh, Pennsylvania, 

for the contestant-respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

These consolidated cases concern a contest filed by Contestant-Respondent 

Mathies Coal Company challenging the legality of one citation issued by an 

MSHA inspector on July 30, 1981, pursuant to section 104(a) of the Federal 

Mine Safety and Health Act of 1977. In addition, Petitioner-Respondent 

MSHA seeks a civil penalty pursuant to section llO(a) of the Act for the 

alleged violation stated in the citation. A hearing was conducted in 

Pittsburgh, Pennsylvania on March 18, 1982, and the parties appeared and 

participated therein. The parties waived the filing of posthearing arguments. 

Issues 

The issues presented in this proceeding include the question as to 

whether contestant-respondent violated the provisions of the mandatory safety 

standard cited by the inspector in the citation, whether the violation was 

"significant and substantial", and the appropriate civil penalty which should 

be assessed for the alleged violation. 

Applicable Statutory Provisions 

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

seq., particularly sections 104(a) and 104(d)(l). 

1121 
2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i), which require~ 

consideration of the following criteria before a civil penalty may be 

assessed for a proven violation: (1) the operator's history of previous 

violations, (2) the appropriateness of such penalty to the size of the 

business of the operator, (3) whether the operator was negligent, (4) 

·the effect on the operator's ability to continue in business; (5) the 

gravity of the violation, and (6) the demonstrated good faith of the 

operator in attempting to achieve rapid compliance after notification 

of the violation. 

3. Commission Rules, 20 C.F.R. § 2700.1 et ~· 

Discussion 

The section 104(a) citation no. 1050403, was issued on July 30, 1981, 

by MSHA Inspector Joseph J. Baniak, and the condition or practice cited 

is described on the face of the citation as follows: 

Evidence observed and measured showed that workers 

were 7-1/2 feet inby roof supports and a danger board while 

installing line brattice in the unsupported face area of 

No. 2 entry 26 Butt section ID 056. This was left from the 

mid-night shift. NOTE: This condition was corrected; however, the citation shall not be terminated until the approved 

roof control plan is reviewed with the mid-night shift crew 

members who left this condition. (No. signs were evident 

in the soft muddy bottom that any type of support was installed. 

Inspector Baniak charged a violation of mandatory ~afety standard 

30 CFR 75.200, and also included a finding in the citation that the 

cited condition or practice constituted a "significant and substantial" 

violation of section 75.200. The abat·ement time was fixed as 8:30 a.m., 

July 31, 1981. 

Inspector Baniak terminated the citation on July 31, 1981, at 8:00 a.m., 

and the action taken by the operator to abate the conditions cited is 

described on the face of the abatement notice as follows: 

The approved roof control plan was reviewed with the 

mid-night shift crew members that worked in the 

26 Butt Section I.D. 506. 

Stipulations 

The parties stipulated to the following (Tr. 5-6): 

1. The Mathies Mine is owned and operated by the respondent, 

Mathies Coal Company. 

2. The Mathies Mine is subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977. 

1122 
3. The Administrative Law Judge has jurisdiction over these 

proceedings. 

4. The subject citations were properly served by a duly authorized 

representative of the Secretary of Labor at the dates, times 

and places stated therein, and may be admitted into evidence 

for the purpose of establishing their issuance and for the 

truthfulness or relevancy of any statement asserted therein. 

5. The assessment of a civil penalty in this proceeding will not 

affect respondent's ability to continue in business. 

6. The appropriateness of the penalty, if any, to the size of 

the coal operatorvs business, should be based upon the fact 

that the respondent's Company and Mine 1 s annual production 

tonnage is one million, four hundred, fifty four thousand, 

three hundred forty nine. 

7. The respondent demonstrated ordinary good faith in it's 

handling of compliance after the issuance of the citation, 

8. The Mathies Mine was assessed a total of one thousand, 

one hundred, ninety one violations during the twenty-four 

month period preceding the issuance of the instant citation. 

Two hundred five of these violations were issued for violation 

of 30 CFR 75.200. 

9. The parties stipulate to the authenticity of their exhibits, 

but not to their relevance or for the truth of the matters 

asserted therein. 

Testimony and evidence adduced by the petitioner 

MSHA Inspector Joseph T. Baniak, testified as to his background and 

experience, and indicated that he has been a mine inspector for some 

eleven years. He confirmed that he inspected the mine on July 30, 1981, 

as part of an MSHA "ventilation saturation inspection", and confirmed 

that he issued the citation in question (exhibit P-1). The citation 

was abated by another inspector and Mr. Baniak identified a copy 

of the termination notice (exhibit P-2). Mr. Baniak stated that he 

rode the mantrip into the section with inspector escort Tom Rigotti 

and section foreman Allan Tedeschi and they proceeded to the working 

places through the number three entry to the number two entry. Mr. Baniak 

stated that he wanted to inspect the area to determine how it was 

left by the previous midnight shift. 

Mr. Baniak testified that upon inspection of the number 2 entry 

he observed that part of the line brattice was hung 7-1/2 feet inby temporary 

roof supports in the last place which had been mined. He measured the 

1123 
distance with a rule, observed three temporary jacks which had been 

installed, two of which were visible, and the other one was behind the 

curtain. He issued the citation because he observed the brattice line 

attached to the roof and the area was not supported. The mine bottom 

was muddy and he observed nothing to indicate that temporary roof support 

jacks had been installed five feet from the permamently supported roof 

in the.entry crosscut as required by the approved roof control plan. He 

also observed foot prints in the area where the line curtain was installed 

and he assumed that someone from the previous shift had walked beyond 

permanent roof supports to install the line curtain without installing 

temporary roof jacks for support. The three temporary jacks which he 

observed were installed directly under the roof bolted area in the crosscut and the roof area there was completely bolted in accordance with the 

roof control plan (Tr. 9-14). 

Mr. Baniak identified a sketch which he prepared for the hearing 

and he testified as to the location of the temporary jacks and line 

curtain as shown on the sketch (exhibit P-3). He indicated that 

mine management agreed with his citation and were in complete agreement 

with the conditions which he noted on the citation. · He stated that the 

three temporary jacks he observed were 4 or 5 feet apart, that the cut 

of coal was completed, and that the entry is approximately 11 feet wide. 

He is familiar with the mining method used in the section and indicated 

that 20 feet deep cuts are taken in the entry, and ventilation tubing is 

installed, and the entry is then cleaned (Tr. 14-19). 

Mr. Baniak testified that the line curtain in que~tion would have 

been hung at the end of the midnight .shift. He indicated that the curtain 

is used when the auxiliary fan is down and that based on the position 

in which he found the curtain the fan could not have been down because 

the width of the mining machine would have torn it down. He described 

the clean-up procedures and indicated that once the first cut or lift is taken, 

the machine makes a clean-up pass and ventilation is then provided to a 

depth of ten feet. A second pass is made and the clean-up repeats. During 

this process, the temporary jack nearest the fan need not be removed to 

make a clean-up pass. 

Mr. Baniak identified a copy of the applicable roof control plan 

for the mine (exhibit P-4) and stated that the conditions he cited 

were in violation of mandatory safety standard 75.200 as well as safety 

precautions 3-C and 4 found on page 6 of the plan. He indicated that 

a small warning danger sign was posted on one of the temporary roof jacks 

which were installed. He also identified a copy of his notes which he 

made at the time the citation was issued, as well as a sketch of the 

scene which are part of his notes (exhibit P-5), (Tr. 20-21). He 

believed that the roof control plan was violated for the following reasons 

(Tr. 22): 

1124 
There was no evidence of a temporary support installed 

in or near where the spad was driven supporting the 

check curtain that was left in number two entry. However, there were many visible signs of footprints because 

of the soft muddy bottom. The area was thoroughly examined 

prior to issuance of the citation, and it was 

upon by management personnel. 

Mr. Baniak believed that the violation was "significant and substantial 11 

because anytime anyone is under unsupported roof doing work serious injuries 

could result (Tr. 27). He also indicated that there have been 36 fatal 

accidents in his district and 24 of them were the result of men working 

inby permanent roof support. He believed that the respondent was aware 

of the conditions because the section foreman and crew members are required 

to know about the roof control plan provisions. If a roof fall had 

occurred, one or more people would have been directly affected (Tr. 27), 

On cross-examination, Mr. Baniak confirmed that he saw no one walk 

under unsupported roof and that his conclusion that they did are based 

on the foot prints, the position of the brattice line in an area 7-1/2 

feet inby permanent supports, and no s in the mud that any temporary 

supports had been installed where the curtain was attached to the roof 

(Tr. 32, 34). He also stated that Mr. Ricotti asked him to make the 

citation out to him because he was "partly responsible" for the roof 

support material (Tr. 35, 37-38). 

Mr. Baniak conceded that the sketch he drew in hia,notes at pg. 4 

is different from exhibit P-3, and he explained that his notes were 

intended as a "reference" to the area where the violations were cited 

(Tr. 40, 44). He confirmed that at the time he issued the citation he did 

not speak with anyone on the previous midnight shift and did not know 

for a fact that anyone walked out under unsupported roof to install 

the line curtain (Tr. 47). He stated that the line curtain is hung after 

the cut of coal is completed and the machine is moved out. Clean-up 

could not have been accomplished with the line curtain installed in the 

center of the entry because the machine could not get into the area (Tr. 48). 

Had the line curtain been adjacent to the rib, there would be no need 

to remove the temporary jacks to clean up. The section was an 

auxiliary fan and tubing for ventilation and this system does not 

require temporary support to provide face ventilation (Tr. 50). 

Alan Tedeschi testified that he is currently employed by the Jones 

and Laughlin Coal Company in a management position and that he previously 

worked for the respondent as a section foreman. He confirmed that he was 

discharged by the respondent on August 17, 1981, for refusal to work a 

scheduled shift. His refusal to work was based on the fact that he had 

worked two straight 8-hour shifts and would not work a third one because 

he didn't believe he could perform his duties· safely. He also confirmed 

a prior disciplinary action against him for missing a day of work, but 

he denied harboring a grudge against the respondent (Tr. 86-91). 

1125 
Mr. Tedeschi stated that he was the section foreman on the day 

shift at the time the citation issued and that he accompanied Mr. Baniak 

on his inspection. The violation was issued on his shift, but the conditions 

cited by Mr. Baniak concern the prior midnight shift. Mr. Tedeschi 

confirmed that a cut of coal had been taken out and three temporary 

jacks were installed. He observed two of the roof jacks on the right 

side of the line curtain and confirmed that part of curtain was inby 

these supports. The curtain was 4 or 5 feet from the left hand rib. 

He reviewed the sketch prepared by Mr. Baniak and agreed that it generally 

depicted the area in question. He also confirmed the fact that he voiced 

no objections at the time the citation was issued (Tr. 92-94). 

Mr. Tedeschi then described the mining procedures which he followed 

in cutting the coal, installing roof support jacks, and the clean-up 

process. He saw no foot prints in the area described by Mr. Baniak 

because he was not looking for any and he indicated that anyone working 

at the face should be aware of the roof control plan. He stated that roof 

jacks were to be installed along the left rib line, but the clean-up 

should take place before the jacks are set. Further, after the second 

cycle of coal is taken out the jacks are not supposed to be removed (Tr. 97-98), 

On cross-examination, Mr. Tedeschi reiterated the circumstances 

surrounding his termination from the respondentts employ and stated that 

he was fired for not showing up for work, and denied that he was discharged 

by the mine superintendent for lying to him about his failure to report 

to work as scheduled (Tr. 99-103). He confirmed that he did have a 

grudge against the respondent at the time he was fired _because he had 

lost his job, and confirmed that he told the superintendent that "he 

couldn't get away with this" and that he was "going to get Consol" for 

firing him (Tr. 105). He also confirmed that he spoke with Inspector 

Baniak two weeks before he was subpoenaed and that Mr. Baniak asked him 

whether he recalled the incident connected with the issuance of the 

citation, but denied that he was pressured by Mr. Baniak and that his 

testimony is from his indePendent memory of the circumstances (Tr. 109-110). 

Mr. Tedeschi stated that he heard no arguments between Mr. Rigotti 

and Mr. Baniak over the citation (Tr. 113), and conceded that the condition 

cited by Mr. Baniak "was there", and he agreed that the roof control 

plan prohibited anyone going inby the last row of permanent supports 

(Tr. 115), but he did not know how the line curtain in question was 

attached to the roof because he ·was not there and made no further inquiries 

in this regard. Abatement was achieved by supporting the area with three 

roof jacks and he assumed that· the condition was left by the preceding 

crew (Tr. 117). 

Respondent's testimony and evidence 

Thomas Rigotti testified that he is employed by the respondent as a 

mine environmental technician and that part of his duties are acting 

as an escort for MSHA inspectors. He confirmed that he escorted Mr. Baniak 

1126 
into the number 2 entry on the 26 Butt Section on July 30, 1981, and 

that Mr. Baniak served the citation on him. He indicated that the 

citation was issued after Mr. Baniak advised him that he saw evidence 

that men had worked under unsupported roof. Mr. Baniak assumed that 

someone worked under unsupported roof after observing that part of the 

line curtain was hung in an area where he believed no temporary roof 

supports had been installed. Mr. Rigotti observed no foot prints in the 

area and he did not discuss the citation with Mr. Baniak at that time, 

but did so later. He denied that he agreed with Mr. Baniak's action in 

issuing the citation but he did discuss the fact that Mr. Baniak saw 

no evidence that roof jacks had been installed. In addition, Mr. Rigotti 

indicated that he wanted to review the roof control plan first to determine 

whether proper procedures were followed in advancing the line curtain 

and installing the roof jacks (Tr. 126-127). 

Mr. stated that company policy prohibits employees from 

proceeding or working inby unsupported roof and that employees are 

disciplined if they are in violation of this policy (Tr. 128). Mr. Rigotti 

reviewed Mr. Baniak's sketch (exhibit P-3) and disagreed that three 

temporary jacks were installed in the place shown. He stated that he 

observed two roof jacks set further into the entry and marked the exhibit 

accordingly. He also disagreed with the position of the line curtain 

as shown on the sketch and stated that it was further inby the entry 

along the left rib and marked the sketch accordingly and stated that the 

curtain was 8 to 10 feet from the face (Tr. 130-132). 

Mr. Rigotti stated that he left Mr. Baniak on two occasions to check 

on other mine areas and to use the mine phone. He described the mine 

bottom in the number two entry as wet' and indicated that it had been 

cleaned. He stated that the entry was 16 feet wide, that the floor is 

cleaned with the miner pan, and that the miner passing through the area 

during the clean-up process would have destroyed any evidence of jacks 

being installed. He also indicated that jacks would have been set along 

the left hand rib line (Tr. 134). 

Mr. Rigotti stated that he could not recall 

mine with him and Mr. Baniak because a "blitz" inspection 

place and there was a lot of confusion. He confirmed that 

not argue with Mr. Baniak about the citation, and agreed that there 

was no evidence that temporary jacks had been set. He also confirmed that 

he has never observed employees going under unsupported roof (Tr. 138). 

Mr. Rigotti stated that after the citation was issued he made an 

inquiry as to whether anyone had worked under the unsupported roof. He 

learned that section Foreman Frank Coccagna had installed jacks and 

advanced them as the cuts of coal were taken out. Mr. Rigotti did not 

know whether anyone was in the area between the time the midnight shift 

ended and the time he and Mr. Baniak arrived on the scene. He did not 

lift the curtain to see whether another jack was behind it and he indicated 

that line curtain and tubing are used for ventilation when coal is being 

mined. When line curtain is used, the auxiliary fan is normally used 

and both are operating at the same time (Tr. 139-146). 

1127 
In response to bench questions, Mr. Rigotti stated that pg. 6, 

item 4, of the approved roof control plan permits the installation of 

a minimum of two temporary jacks or posts on five foot centers after one 

half a cut of coal is taken, the advancement of canvas or tubing, and 

the performance of work as long as men stay under the roof support. The 

temporary supports can then be removed remotely by use of a jack handle, 

and then the other side of the cut can be mined (Tr. 148). He also 

indicated that Inspector Baniak should not have assumed that anyone was 

inby roof support without investigating the matter further (Tr. 150). 

Mr. Rigotti stated that he observed no equipment in the working 

place in question when he and Mr. Baniak arrived on the section, that the 

area was completely mined out, and immediately outby the curtain there was a 

warning device there to keep people from entering the area. The line 

curtain was beyond the warning place and no roof supports were there 

and he believed someone pulled them out remotely in accordance with the 

roof plan. However, they could have been left i~ but this is discretionary 

(Tr. 151-152). 

Frank A. Coccagna, section foreman, testified that he holds a 

degree in economics and political science from the University of Pittsburgh 

and a two-year degree in mining technology from Penn State University. 

He stated that he was familiar with the roof control plan in effect 

on July 30, 1981, as well as company policy which prohibits anyone from 

going inby unsupported roof for any reason except to install roof support 

jacks (Tr. 166-168). 

Mr. Coccagna identified a sketch of the scene of tne citation as 

he recalled it on July 30, 1981, and he described the work performed 

in the area during his midnight shift (Ex. C-1; Tr. 168-170). He stated 

that the line curtain was hung up on the last roof jack which was installed 

next to the ventilation tubing and the curtain was no more than a foot 

from the jack where a person could reach it (Tr. 170). The jacks were 

about five feet from the rib, and after the curtain was hung the first 

line jack was removed by means of reaching in with a jack handle. He 

removed the jack in order to use it across the face of the cut to 

facilitate the hanging of a danger board to alert miners on the next 

shift not to walk inby unsupported roof (Tr. 171-172). 

Mr. Coccagna stated that after the jacks were taken out and the 

line curtain hung, they proceeded to mine the second half of the lift, 

backed the miner up and cleaned up along the curtain in such a manner 

as to not disturb the curtain. The section was dry with a little water 

from the sprays. Since the jacks were installed two feet from the line 

curtain, the clean-up would have destroyed any visible evidence that the 

jacks had been set. There would not have been a third jack behind the 

line curtain, and during the entire mining process the roof control 

plan was complied with at all times. At no time was work performed 

under unsupported roof, and he was on the section during the entire 

shift supervising the operation. He has gone out under unsupported roof, 

but only to support it, and he does not condone his men going under unsupported roof, nor has he ever ordered them to do so (Tr. 173-176). 

1128 
Mr. Coccagna stated that he first learned about the citation at 

noon the day it was issued. Mine superintendent Karazsia telephoned 

him at home and asked him how the line curtain came to be located inby 

unsupported roof. He explained the mining procedures which were followed 

on his shift and Mr. Karazsia responded "fine" (Tr. 177). 

Mr. Coccagna testified that three or four weeks prior to the hearing 

Inspector Baniak was in the mine and engaged him in a conversation 

concerning the citation in question and told him "You were wrong, you 

were wrong", and that this went on for two and half hours while 

he was escorting Mr. Baniak on his inspection rounds (Tr. 178). 

On cross-examination, Mr. Coccagna stated that at the time the cut 

was being mined and the area cleaned up, they were following roof control 

plan "drawing number 1-B" and safety precaution number 4, found on page 

six of the plan (Tr. 180). He described the clean-up process, including 

the operation of the continuous miner cutting heads during the clean-up 

cycle (Tr. 180-186). 

Mr. Coccagna stated that when the curtain was hung, a foot of left 

over material was tucked behind it. One of his crew members inserted a 

spad into the roof with a spad gun and he connected the curtain to the 

spad. The ventilation tubing was left a little behind the roof bolts 

so that it could be pulled out. Permanent roof supports were present 

in the entry when the auxiliary fan tubing was pulled out. The curtain 

was hung while under temporary support (Tr. 186-190). 

In response to bench questions, Mr. Coccagna stated that Mr. Baniak's 

"rough sketch" of the scene as depicted in his notes resembled the area 

at the time the citation issued, except that the line curtain was closer 

to the rib and did not "curve out" (Tr. 199). He also indicated that 

Mr. Baniak's "hearing sketch" was not accurate in that the curtain was 

not in the middle of the entry as shown and the first cut of coal had been 

taken out a week earlier (Tr. 200). 

George Karazsia, mine superintendent, Gamble Portal, Mathies Mine, 

testified that when he learned that the citation had been issued by 

Mr. Baniak he telephoned section foreman Frank Coccagna to inqurie about 

the allegation that men worked under unsupported roof on his shift. 

Mr. Coccagna explained the procedures which were followed in installing 

the line curtain and assured him that it was done in full compliance 

with the roof control plan and that no one on his crew worked under 

unsupported roof. After speaking with Mr. Coccagna he called Mr. Baniak 

to discuss the matter but Mr. Baniak refused to discuss the citation 

with him. Since that time Mr. Baniak visited the mine three times to 

discuss the citation with mine employees and with him. Mr. Karazsia 

stated that he advised Mr. Baniak that since the matter was being litigated 

and was in court he did not believe he should.discuss the matter with 

him or his men (Tr. 204-208). 

1128 
On cross-examination, Mr. Karazsia confirmed that he instructed 

Mr. Baniak not to speak with or discuss his citation with his salaried 

personnel because the matter was in litigation and the men felt that 

Mr. Baniak was harrassing them because of his attempts to discuss the 

citation with them during his mine visits after the citation was issued 

and before the present hearing was convened (Tr. 208-210). 

George Puskarich, retired shuttle car operator, testified that he 

was so employed on the section midnight shift in question on July 30, 1981. 

He stated.that he observed the curtain in question during the end of 

the shift and he observed that two jacks were set and the curtain was 

then hung. The jacks were then moved back and Mr. Coccagna put a danger 

board across them. Mr. Puskarich observed no one under unsupported 

top during the shift and if they do "they are crazy" (Tr. 216-217). 

Referring to the sketch (Ex. C-1), Mr. Puskarich described how the entry 

was mined, cleaned, and how the jacks and curtain were installed during 

the shift (Tr. 219-220). 

Inspector Baniak was recalled by me and testified as follows 

(Tr. 229-231): 

Q. Leave the practicalities out of it. I 

want to know what happened that night. He claimed 

they were using tubing and curtain? 

A. Both. 

Q. Both. 

A. Okay. 

Q. All I'm asking you is, can you confirm that? 

Were they in fact using tubing and curtain to ventilate? 

A. Well, your Honor, I based the condition I 

cited by the fan being in that position and the check 

curtain, mostly was in the center of the place. 

Whether it be fifteen feet inby, whether it be twenty 

feet qutby from the permanent support, it was seven 

and a half feet inby, and hung approximately center 

of the entry. 

Q. Yes, but my question is, if they followed 

the procedure that Mr. Coccogna testified to as to 

how they installed that line curtain inby with the 

permanent supports, would that still be a violation? 

A. Yes, from what I saw I'd still have go [sic], 

yes. If this was hung at the completion of the cut, 

why would, whether it be one or two temporary supports, 

why would they have to possibly be removed? And this 

is the condition that I made. 

1130 
Why would they be moved? If there was one they 

were still inby. If there were two or if there was 

one at the canvas, they're too far. And I was just 

basing mine on the check curtain. 

In fact I think I measured that the check curtain 

was seven and a half feet inby. And this was my whole 

case. And the position of the curtain. 

Q. Had Mr. Coccogna been right there on the scene 

and explained to you how that check curtain came to be 

installed in the manner in which you found it, had he 

explained to you that he set two temporary jacks on the 

side along the rib line, installed the check curtain 

and then removed the jacks with a thirty foot bar and 

hung a danger board up there and left the area, would 

that have been a violation? 

Just a hypothetical? 

A. Okay. From the position I saw the check curtain 

this is what I'm basing it on.· Probably the way he had 

explained it using that, it's a possibility that it 

could be done. 

But the way I saw it when I was in the section 

and the curtain being in such, in the center,of the 

face, there would be no need to remove any temporary 

supports. 

* * * * * * * * * * * 

Q. But you heard him testify that he did in fact, 

remove the two that were along the line curtain. 

A. To place here. 

Q. Yes, and put them back where he claims they 

were. 

A. Um-hum, okay, well there's a possibility. 

* 

Mr. Baniak also confirmed that the citation was abated by another 

inspector and that he was not present when the inspector met with the 

midnight crew to discuss his citation and the approved roof control plan 

(Tr. 238). 

1131 
Findings and Conclusions 

Fact of Violation 

The critical question in this case is whether MSHA has established 

a violation by a preponderance of the credible evidence and testimony 

adduced in this case. MSHA has the burden of proving that'miners were 

inby roof supports and the posted danger board at the time the line brattice 

in question was installed. Since no one observed anyone inby these 

areas, MSHA 1 s case rests essentially on the testimony of Inspector Baniak, 

In issuing the citation in question, Mr. Baniak arrived at certain conclusions 

based on assumptions and speculations with respect to the approved roof 

control plan, the method of mining and clean-up being utilized by the midnight 

shift immediately prior to the time he observed the conditions cited, 

and certain foot prints which he states he observed at the scene. The 

crux of MSHA's case lies in the inspector's belief that someone was under 

unsupported roof and they attached one end of the ventilation line curtain 

to a roof spad which extended some 7 1/2 feet inby the last row of roof 

supports. In short, the Inspector saw some foot prints, saw no evidence 

that temporary jacks had been installed at or near where the curtain 

was attached to the roof, and came to the conclusion that someone had 

installed the curtain while under unsupported roof (Tr. 52-54). MSHA also 

presented the testimony of the former day shift foreman, Alan Tedeschi, 

who confirmed what the inspector observed at the time the cited conditions 

were found. 

The crux of the defense to the citation is the assertion by the 

respondent that the line curtain was 'install~d in full compliance with 

the approved roof control plan. In support of this defense, respondent 

presented the testimony of the section foreman who was responsible for the 

work performed on the shift immediately preceding the one on which the 

conditions were found. Mr. Coccagna testified that he supervised the 

work which had taken place at the location of the line curtain in question, 

and he described in detail the procedures followed in supporting the roof 

and hanging the curtain in question. He also stated that the installation 

of temporary supports, their subsequent removal after the curtain was 

installed, and the installation of the curtain itself, were all accomplished 

in full compliance with the approved roof control plan (exhibit P-4, 

Safety Precaution No. 4, pg. 6, and Drawing l(b)). Mr. Coccagna's testimony 

was corroborated by former shuttle car operator George Puskarich, and 

mine superintendent George Karaz?ia confirmed that Mr. Coccagna explained 

the procedure he followed in hanging the curtain in question when he 

questioned him shortly after the citation was issued. 

The record establishes that the roof in the entry crosscut in the 

immediate vicinity of the curtain was fully supported and bolted in accordance 

with the roof control plan. In addition, petitioner's counsel conceded that 

there is no evidence that anyone was under unsupported roof while the 

auxililary ventilation tubing was installed in the area in question, and that 

had any other hazards or violations been observed by the inspector, he 

would have issued additional citations (Tr. 190). Given these circumstances, 

1132 
I find it unlikely that the section foreman on the midnight shift 

would expose himself to a citation by such a foolhardy act as leaving 

a curtain installed in full view of an inspector if he (the foreman) 

did not believe what he had done was in full compliance with his roof 

control plan. 

Both Mr. Coccagna and Mr. Puskarich impressed me as straightforward 

credible witnesses. Mr. Coccagna is a college graduate, with two years 

of post-graduate study in mining technology, He impressed me as being 

most knowledgeable with respect to the detailed provisions of the roof 

control plan, and I accept his explanation as to how the line curtain 

in question was installed, Mr. Puskarich was retired at the time he 

testified and was no longer employed by the respondent, and I see no 

reason why he would not tell the truth. Further, all of the respondent's 

witnesses were sequestered during the hearing, and having viewed them on 

the stand, I find their testimony to be credible. In addition, Inspector 

Baniak conceded that it was possible that the curtain in question was 

installed, and the temporary jacks removed, as explained by Mr. Coccagna 

(Tr. 230-231). 

Although there is no dispute as to what Inspector Baniak observed at the 

time the citation issued, I cannot conclude that MSHA has established 

a violation. In short, MSHA's "circumstantial case" that someone had been 

under unsupported roof at the time one end of the line curtain in question 

was fastened to the roof spad has been rebutted by the testimony and 

evidence presented by the respondent in this case. Under the circumstances, 

Citation No. 1050403, July 30, 1981, citing a "signific_~mt and substantial" 

violation of mandatory safety standar.d 30 CFR 75.200, IS VACATED. 

ORDER 

In view of the foregoing findings and conclusions, the civil penalty 

proceeding, Docket No. PENN 82-5, IS DISMISSED. Contestant's contest of 

the vacated citation, Docket No. PENN 81-230-R, IS SUSTAINED. 

Koutras 

c:1'r~ Administrative Law Judge 

Distribution: 

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

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

H. Juanita M. Littlejohn, Esq., Consolidation.Coal Co., Consol Plaza, 

Pittsburgh, PA 15241 (Certified Mail) 

Harrison Combs, Esq., UMWA, 900 15th St., NW, Washington, DC 20005 

(Certified Mail) 

1133 
rEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ALLIED CHEMICAL CORPORATION, 

Respondent 

DECISION 

Docket No: WEST 81-243-M 

A.O. No: 48-00155-05070 

Alchem Trana Mine 

Appearances: Stephen P. Kramer, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner 

John A. Snow, Esq., for Respondent 

Before; Judge Moore 

The above case originally involved 6 citations, 5 of which involved 

the dust standard. At the trial, government counsel moved to dismiss 

the 5 dust violations because the testing criteria had been changed 

since the issuance of the citations, the chain of possession criteria 

had been changed, and counsel did not believe that he could prevail in 

view of the current rules. I granted the.motion and all citations 

except citation 577319 issued on December 17, 1980 alleging a violation 

of 30 C.F.R. 57.3-22 were vacated. 

Citation No. 577319 alleges a violation of 30 C.F.R. 57.3-22 in 

that "there was loose ground on the back and rib in 5 room between 18 

and 19 crosscut in B-92 panel. The panel is down at the time of inspection. 

The pieces of loose measured approximately 12" by 18" times by 12" 

thick. A piece from the rib measured approximately 20" by 18" by 34" 

thick." There was considerable dispute as to where the loose roof and 

rib were located in the mine,but there is no question but that the 

condition existed and that the two pieces of trona were barred down by 

an employee of the company. No management personnel were in the immediate 

vicinity with the two inspectors when they observed the condition, 

however. 

The inspector stated that even though this was an idle shift, a 

workman was observed in the vicinity of an electrical power station 200 

feet away from the loose pieces of trona. The loose material was in an 

entry or room and the power station was in a crosscut. Thus the 200 foot 

distance would include a ninety degree turn. The company records show 

that even though this was an idle shift, the required roof and rib 

1134 
inspection had been made, but it showed no bad roof or rib conditions. 

The inspector stated that in retreat mining, and that ·ts what was being 

done in this panel, trona can become cracked and loose in a matter of 

ten minutes. 

The standard requires that miners examine and test the back, face 

and rib of their working places at the beginning of each shift, and 

frequently thereafter and it also requires that supervisors examine the 

ground conditions during daily visits. Inasmuch as there is no evidence 

that the supervisors did not make the necessary examination, MSHA's case 

depends upon whether the miner that was working in the vicinity of the 

electrical distribution center was required to examine the area of the 

loose pieces before working at the distribution center. The standard 

says that miners shall examine "their working places." 30 C.F.R. 

57.2 defines a working place as "any place in or about the mine where 

work is being performed." Except for the inspection party, there were 

at most two people working in the panel at the time of the citation. 

Only one of the two people was observed but it was assumed that he was 

accompanied by someone else. I cannot construe the standard to require 

a worker to go 200 feet inby his working station to examine for loose 

roof and ribs. He must make the examination in his immediate working 

area and there is no evidence that the workman observed by the inspector 

did not act in accordance with the standard. 

The citation is vacated and the cas~ is dismissed. 

Distribution: By Certified Mail 

Clzec)t/,~ C 9J; <Ye)r-1' £ 

Charles C. Moore, Jr., f' 

Administrative Law Judge 

Stephen P. Kramer, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203 

John A. Snow, Esq., Van Cott, Bagley, Cornwall and McCarthy, Suite 1600, 

50 South Main Street, Salt Lake City, UT 84144 

1135 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE .400 

OENVH, COLORADO 90204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

) 

) CIVIL PENALTY PROCEEDING 

) 

) DOCKET NOS. CENT 79-282-M 

) CENT 80-6-M 

) CENT 80-124-M 

PHILLIPS URANIUM CORPORATION, ) 

~~~~~~~~~~R_e_s~p~o_n_d_e_n_t_·~~~~) 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

PHILLIPS URANIUM CORPORATION, 

Respondentn 

and 

) 

) 

) 

) CIVIL PENALTY PROCEEDING 

) 

) DOCKET NO. CENT 79-281-M 

) 

) 

) 

AMERICAN MINING SERVICE, as 1ub1titute) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~~ 

DECISION ON REMAND 

On April 27, 1982, the Coani11ion i1aued it• final decision vacating all 

citations and orders and dismi1sing the petitions for assessment of 

penalties in each of the above ca1es except for Docket No. CENT 79-281-M. 

That case was remanded to this judge because while the matter was 

pending upon review, American Mining Service (AMS), an independent 

contractor, executed a 1ubstitution agreement vith Phillips Uranium 

Corporation, (Phillips) the owner-operator. In that agreement, now a part 

of the record, AMS formally agreed to substitute itself as respondent in 

this civil penalty proceeding in the place and stead of Phillips. It 

further paid the full $48 penalty proposed in that docket number. (The 

record discloses that a check including that amount was paid to Phillips, 

which in turn endorsed it to MSHA). 

As the original parties and AMS are amenable to the substitution, the 

Commission remanded CENT 79-281-M with a aandate to dismiss as to Phillips 

and to substitute AMS. In view of the state of the record, no further 

proceedings are required. l/ 

1/ All parties were notified of my intent to issue this sunnnary decision 

and were offered an opportunity to object. None did. 

1136 
Accordingly, AMS is substituted as respondent in the place and stead 

of the original respondent, Phillips; this proceeding is in all respects 

dismissed as to Phillips; and the $48 proposed civil penalty previously 

paid by AMS is affirmed and assessed against AMS. 

SO ORDERED. 

Distribution: 

James G. Williams, Esq. 

Phillips Petroleum Company 

Minerals Group 

P.O. Box 3209 

Englewood, Colorado 80155 

George W. Terry, Jr., Esq. 

Malcolm L. Shannon, Jr., Esq. 

Phillips Uranium Corporation 

P.O. Box 26236 

4501 Indian School Road, N.E. 

Albuquerque, New Mexico 87125 

Nancy S. Hyde, Esq. 

Office of the Solicitor 

United States Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

A.J. McDougall, President 

American Mine Services, Inc, 

4705 Paris Street 

Denver, Colorado 80239 

ohn A. Carlson 

Administrative Law Judge 

1137 
FEDERAL MINE S~S::l5TY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 211982 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket Nos, Assessment Control Nos. 

v, 

KENT 81-77 

KENT 81-78 

15-07295-03019 

15-07295-03020 

MARTIKI COAL CORPORATION, 

Respondent 

Martiki Surface Mine 

DECISION 

Appearances: George Drumming, Jr., Esq.~ Office of the Solicitor, U. S. 

Department of Labor, for Petitioner; 

William G. Francis, Esq., Francis, Kazee and Francis, 

Prestonsburg, Kentucky, for Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued March 16, 1982 . ., a hearing in the 

above-entitled proceeding was held on Avril 20 and 21, 1982, in Prestonsburg, 

Kentucky, under section lOS(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 815(d). 

After the parties had completed their presentations of evidence each 

day, I rendered the bench decisions which are reproduced below (Tr. 218-245 

in Docket No. KENT 81-77 and Tr. 227-242 in Docket No. KENT 81-78): 

DOCK.ET NO. KENT 81-77 

The proposal for assessment of civil penalty filed on 

March 16, 1981, in Docket No. KENT 81-77 seeks assessment of 

civil penalties for five alleged violations of the mandatory 

health and safety standards. The parties succeeded in reaching 

a settlement agreement as to three of the violations and the 

other two have been the subject of a hearing at which both MSHA 

and respondent have presented witnesses. 

Since there are both contested and noncontested violations 

involved in this proceeding, I shall first consider the contested 

violations. The remaining part of my decision in Docket No. KENT 

81-77 will consist of a discussion of the settlement agreement and 

indicate whether the settlement agreement should be accepted. 

1138 
Contested Violations 

Citation No. 731280 (Exhibit 2), October 6, 1980, § 77.1605(a) 

The information given below constitutes findings of fact with 

respect to the violation of Section 77.1605(a) in Citation 

No. 731280. 

1. The have stipulated in Exhibit 9 that respondent 

operates the Martiki Surface Mine and that it is a large operator, 

Respondent demonstrated good faith in rapid compliance 

with respect to the violations which were settled, as well as the 

ones which are contested. The parties further stipulated that any 

penalty which may be assessed in this will not adversely 

affect respondent's ability to continue in business. 

2. On October 6, 1980, Inspector Andrew Reed, Jr., made an 

examination of the Martiki Surface Mine. At that time, he wrote 

Citation No. 731280 alleging a violation of section 77.1605(a), 

which provides, "cab windows shall be of or equivalent, 

in good condition and shall be kept clean." 

3. The condition given in the inspector's Citation No. 731280 

was that the cab windshield in Caterpillar Loader 992C (Company No. 

309) is not in good condition. The windshield contained a shattered 

place in the upper left side with approximately 14 cracks extending 

from the shattered Three of the cracks extended all the way 

across the window and about five cracks were observed in the area 

traversed by the windshield wiper blade. 

4. The operator of the No. 309 end loader was Raymond Maynard 

and it was his opinion that the cracks were not bad enough ~o obstruct his vision. He indicated that there was, in his opinion, 

only a small place, which he described as a crack, where a rock had 

hit the windshield and that some small lines extended out from the 

initial point of impact. He didn't think there were as many cracks 

or lines as the inspector thought existed in the windshield. 

Maynard reported to his supervisor, Bill Houser, that there was a 

cracked place in the windshield and the report to that effect was 

given to Houser orally by means of a short wave radio, which was in 

one of the trucks which Maynard was loading. Maynard testified 

that it is a company practice to have anything that's wrong with a 

vehicle reported in writing on a card, but he could not recall 

whether there was a card available on the morning that this windshield was cracked. Therefore, he did not write on a card the fact 

that the windshield was cracked. 

5. The lead supervisor on the midnight-to-8:00 a.m. shift, 

which was the shift on which the citation was written, was Bill 

Houser. He testified that he had received a call from Maynard 

about the existence of a cracked windshield in loader No. 309, but 

1139 
since Maynard did not feel that the cracks were bad enough to 

keep him from operating the vehicle, he did not have the equipment 

taken out of service. Consequently, the equipment was used on the 

first part of the shift and Maynard was still in the end loader at 

the time it was examined by the inspector in the neighborhood of 

4:00 a.m. The citation, itself, was written at 6:55 a.m. but the 

cracked windshield had been observed prior to that tinie. Houser 

testified that if the operator of a piece of equipment thinks that 

a given defect is sufficiently bad to interfere with the operation 

of the equipment that he generally leaves that up to the judgment 

of the operator of the equipment. If the defect, or problem that 1 s 

reported to him is anything that Houser considers to be of a serious nature, such as the brakes giving a problem, he personally 

goes to the equipment and checks it to be certain that there is no 

endangering hazard associated with the problem, if the piece of 

equipment is continued in service for the remainder of the shift. 

Those are the primary facts that were given by the witnesses 

in this case as to Citation No. 731280. A great deal of testimony 

was given by the three witnesses, Reed, Maynard, and Houser, but 

most statements are sufficiently diverse in nature to make it 

necessary to discuss them in deciding whether a violation occurred 

and, if so, whether the penalty should be of a moderate nature or 

perhaps a fairly large penalty. 

There was a motion made by counsel for respondent after all 

the testimony was given, urging that Citation No. 731280 be dismissed because the inspector's testimony had failed to show that 

the windshield was in other than good condition. As I have indicated previously, the violation involyes section 77.1605(a) which 

provides that "[cJab windows shall be of safety glass, or equivalent, in good condition and shall be kept clean." Respondent's 

counsel has emphasized that there's no dispute but that the windshield was made of safety glass, or equivalent and that the glass 

was clean. The only question is whether the windshield with 14 

cracks in it was in good condition. It is the position of respondent's counsel that although there were some cracks in the 

windshield, I should give considerable weight to the testimony of 

the operator of the equipment, who was of the opinion that the 

cracks, although admittedly present, were not sufficiently bad to 

cause him any problem in operating the equipment. So, the issue 

before me, really, is whether, or at what point, cracks in a windshield become severe enough to be considered not in good condition, 

as was alleged by the inspector. 

It is human nature for a person to see events which will ultimately be used to make conclusions which·are consistent with 

that person's position in life. The inspector wanted to show that 

the cracks constituted a violation of section 77.1605(a) and there1140 
fore he very meticulously counted the number of cracks in the windshield. Since his manual apparently indicates that cracks in the 

area which is traversed by the wiper blades are especially likely 

to be where a person's vision would be affected, he counted the 

number of cracks in the area where the windshield wiper traversed 

the windshield. He also noted that three of the cracks were long 

enough to go clear across the windshield. 

In opposition to the inspector's observations of the windshield, we have the loader operator's testimony. He said that the 

cracks were perhaps long enough to extend 6 inches, that they 

didn't traverse the area where the windshield wipers passed across 

the windshield, and that his vision was not blocked in any way, 

We have to keep in mind, of course, that these cracks were observed by both the inspector and the loader operator about 4:00 

a.m., when darkness prevailed and during foggy weather conditions, 

Consequently~ I can certainly believe that Maynard would have been 

less inclined to see the cracks than the inspector because Maynard 

didn't set out to establish any specific type of condition. It is 

significant, though, that Maynard thought that these cracks were 

sufficiently noticeable for him to take the time to report them to 

his supervisor, Houser. 

Both of the operators of end loaders who testified in this 

proceeding indicated that the Company wants any kind of defects in 

its equipment reported. Both witnesses gave respondent a high 

grade for the effective and conscientious maintenance that's done 

on the equipment. Consequently, this is not a case in which we 

have a respondent which is dilatory about fixing equipment or a 

case in which equipment operators are encouraged not to report 

defects in equipment. Nevertheless, I think that the testimony, 

when viewed from the standpoint of the position of each person who 

has testified, would have to support a finding that the cracks 

were of sufficient nature to keep the windshield from being in 

good condition. For that reason, I find that there was a violation 

of section 77.1605(a) and that respondent's motion to dismiss 

should be denied. 

Having found that a violation occurred, a civil penalty must 

be assessed, based on the six criteria for assessing penalties as 

those criteria are given in section llO(i) of the Federal Mine 

Safety and Health Act of 1977. As Finding No. 1 above shows, the 

parties have already stipulated as to three of the six criteria, in 

that, they have agreed that respondent is a large operator, that respondent's ability to continue in business will not be affected by 

the payment of penalties, and that all of the violations were abated 

rapidly. 

1141 
In my past decisions, and in the assessment formula described 

in 30 C.F.R. § 100.3, the criterion of good-faith abatement has 

been used in the following manner: if a violation is found to 

have been abated in a normal fashion, that is, within the time 

given by an inspector for abatement, the penalty is neither increased nor decreased under the good-faith abatement criterion. 

If the violation is not abated within the time given by the inspector, then up to 10 penalty points are added to the penalty 9 otherwise assessible under the other criteria, and the penalty is 

therefore increased. On the other hand, if an operator abates a 

violation in less time than was given by the inspector, then it's 

considered rapid abatement and up to 10 penalty points are subtracted from the penalty which would otherwise be assessible and 

the penalty is therefore decreased. 

It is not of ten that I find parties stipulating that a respondent has demonstrated good faith in achieving rapid compliance. 

With respect to each of the violations involved in this case, the 

inspector's statement, which is Exhibit 3, in one instance, and 

Exhibit 5 in the other instance, the inspector states that the operator abated the violation in about one-eighth of the time that 

he had set. Therefore, whatever penalty is assessed in this case 

should be reduced considerably because of the rapid abatement. I 

have discussed the rapid abatement criterion first because it happens to be among those matters which were stipulated by the parties, 

but it can't be applied until some determination has·been made with 

respect to the other criteria. In 'other words, you have to determine an amount before you can deduct anything from it. 

Exhibit 1 shows that the number of previous violations of section 77.1605(a) amounts to one in the 24-month period preceding the 

occurrence of the violation alleged in this case. Exhibit 1 shows 

in the second portion on the right side that there've been three 

violations alleged but only one of them has been paid, and the other 

two, I'm told by counsel, are the ones involved in this proceeding. 

It's been my practice over the years to add some amount to a penalty 

when I find that there has been a previous violation of the same 

section which is before me in a given case. In this instance there 

is the minimum that can exist, which is one, and that one occurred 

over a period of 24 months. Consequently, I do not feel that a very 

large amount needs to be assessed for a single violation in a 24-

month period. Therefore, whatever penalty is assessed, $20 will be 

assessed under the criterion of history of previous violations. 

The next criterion which has to be considered is negligence. 

The evidence shows that there was a very low degree of negligence 

because, first of all, the crack in this particular windshield had 

not been in existence long enough for it to have been reported prior 

to the shift on which it was reported by Maynard, the operator of 

the end loader. Since Maynard did report the cracked windshield at 

1142 
the beginning of his shift to the supervisor, and since it cannot 

be determined for certain whether that would have been sufficient 

to have brought about the replacement of the windshield during 

the day shift, I can hardly find on the evidence that respondent 

was negligent in not having replaced the windshield before it was 

cited by the inspector. 

The reason for the foregoing conclusion is that the citation 

was issued on a midnight-to-8:00 a.m. shift and the Company relies 

on an independent contractor to replace windshields. As it turned 

out, the windshield, in this instance, was replaced within 3 or 4 

hours after it was cited by the inspector. There's no evidence in 

the record to show, for a certainty, that it might not have been 

replaced even if the inspector had not written a citation about it, 

In any event, there was a very low degree of negligence so that I 

think the most that I should assess under that criterion would be 

$10. 

The sixth criterion is gravity, or seriousness, As to that 

criterion, there is little persuasive evidence because most of the 

testimony as to gravity is based on speculation, The inspector 

did get into the cab of the end loader and did look through the 

place where the windshield wiper traverses the windshield. It was 

the inspector's opinion that his vision was slightly reduced by 

the five cracks across the windshield, but the inspector said that 

there was no discoloration around the cracks, there was no accumulation of dirt in the cracks, and his most adverse statement about 

the cracks was that there might have been some refraction of light 

from the cracks at certain times of the day or night. Therefore, 

the evidence as to impairment of one's ability to see through the 

windshield ranges from the inspector's belief that his vision would 

have been slightly reduced by the cracks to the equipment operator's 

belief that his vision was not affected at all by the cracks. 

In evaluating the gravity of the cracked windshield, there is 

a second factor to be considered, namely, the inspector's belief 

that the cracks in the windshield weakened the windshield structurally so that an additional rock or other object that might have 

flown against the windshield at a subsequent time would necessarily 

have exposed the operator to an additional hazard because some 

ing glass might come off a windshield which had already been weakened by cracks as compared to a new windshield, or a windshield 

which has no cracks in it. On structural weakening, I think that 

the inspector's conclusion is supported by the record because his 

testimony shows that there were 14 cracks in the windshield, some 

of which extended all the way across the windshield, and there were 

five in the area where the windshield wiper traversed the windshield. 

So, there would have to have been a weakening of a windshield which 

1143 
has that many cracks in it. Consequently, I find that the violation was moderately serious and that a penalty of $30 should be 

assessed under the criterion of gravity. 

On the basis of the foregoing discussion, $20 should'be attributed to history of previous violations, $10 should be assessed 

under negligence, and $30 should be assigned under gravity, for a 

total of $60. As I indicated previously, since there was very 

rapid abatement of the violation in this instance with the windshield being replaced so quickly that the day shift could go ahead 

and use the end loader on the next shift, I believe that the penalty already assessed should be reduced by half, Therefore, the 

penalty should be $30.00 in this instance for the violation of 

section 77.1605(a) alleged in Citation No. 731280, 

Citation No. 951482 (Exhibit 4), October 6, 1980, § 77.1605(a) 

The findings of fact with respect to Citation No. 951482 alleging a violation of section 77.1605(a) are given below, 

1. During the same inspection on which the inspector wrote 

the citation considered above, the inspector also examined another 

Caterpillar 992C loader, having Company No. 313, and the inspector 

also cited that Caterpillar loader for a violation of section 

77.1605(a). His citation, in this instance, states that the cab's 

windshield was not in good conditi~n because approximately seven 

cracks were present in the windshield. 

2. When the inspector started testifying in detail about the 

seven cracks in the windshield of loader No. 313, he was unable to 

be nearly as explicit as he had been when he described the cracks 

in the windshield of loader No. 309. He was sure only of the fact 

that he had counted seven cracks in the windshield. He thought 

that the cracks were caused by an object falling off the bucket of 

the end loader and hitting the right side of the windshield, thereby causing seven cracks in the windshield. The inspector was not 

sure whether those seven cracks were in the area traversed by the 

windshield wiper blades, although he concluded that if one looked 

through the windshield, those seven cracks would be in his line of 

vision, or at least some of them.would be. He emphasized, in connection with the seven cracks, the fact that end loader No. 313 

was being used in an area where there were several lights which 

were strong and which, upon hitting the windshield at various 

angles, might cause light refractions which could distort vision 

through the windshield. But even as to that allegation or conclusion the inspector was not sure what hazard.the seven cracks would 

cause, because he only looked through the windshield while the end 

loader was stationary. In that single position, no light refractions showed on the windshield. 

1144 
3. The operator of loader No. 313 was Chester Lacey. Lacey 

had worked for Martiki for about 5-1/2 years, but he'd been operating heavy equipment for many years longer than that. It was his 

opinion that the crack in the windshield did not cause any problem 

in his being able to see through the windshield. His description 

of the crack was completely different from that of the inspector. 

He testified that the only crack in the windshield was a half moon 

crack about 10 inches long in the lower left corner of the windshield. It was his testimony that the half moon crack did not extend up from the windshield's bottom for more than 4 inches. As 

he described the area traversed by th~ windshield wiper blades the 

windshield wiper would not have come closer to the top of the windshield than 6 inches or closer to the bottom of the windshield than 

6 inches. Since the crack extended up from the bottom 4 inches, 

the crack did not come within the area traversed by the windshield 

wiper blades. 

4. Lacey emphasized that the crack was so low in the windshield that he would not normally look through that portion of the 

windshield to do anything, because if he were loading the bucket he 

would look, approximately, through the center of the windshield. 

When he loaded a truck, or dumped materials out of the bucket into 

a truck, which are very large trucks, he would be looking only 

through the top of the windshield. Lacey also testified that although he had seen the crack in the windshield at the time he began 

his shift, that he is a type of operator who is known as a general 

mine utility person, who can operate practically any equipment at 

the mine, except the drag line. Therefore, he said that he had 

only about 10 minutes to inspect this piece of equipment. By the 

time he had finished inspecting it, the lead supervisor, Bill 

Houser, had already left. The only way he then had for reporting 

the crack to Houser would have been to have had a truck driver report it over the truck's radio. Since Lacey wanted to get busy 

operating the end loader, he did not orally report this particular 

crack in the windshield because his supervisor had already left 

and because he didn't think it was very serious, and he was confident it would not obstruct his vision. 

5. Insofar as the crack in the windshield of loader No. 313 

is concerned, Houser testified that he hadn't received any report 

about the windshield in this instance, but that when the inspector 

cited the violation he, of course, had the windshield replaced. 

The significant part of Rouser's testimony was that if he personally had seen a half moon crack in the bottom of the windshield, 

10 inches long, he would have had the windshield replaced. It was 

also his testimony that the Company does have a practice of checking windshields on its own initiative and when it does find one 

that's excessively scratched, or in need of replacement, the Company 

does so on a regular and routine basis. 

1145 
Those are the findings of fact which are significant with 

respect to the windshield cracks in end loader No. 313. 

Respondent's counsel also made a motion to dismiss, with 

respect to Citation No. 951482. He stressed the same factors in 

his motion with respect to the instant citation as he did with 

respect to Citation No. 731280, except that he emphasized that 

there was even less reason to find that this windshield was not 

in good condition than there was with respect to the preceding 

alleged violation. He emphasized, correctly, that when Lacey was 

testifying about the cracked windshield in loader No. 313, he 

stated that he had the citation read to him, or showed to him by 

the Company's safety supervisor the next day or so after it had 

occurred. Lacey said that when he read the inspector 1 s description of the windshield on his loader No. 313, he thought the inspector had made a mistake and had described the wrong windshield 

for his loader No. 313 because the inspectorvs description of 

seven cracks in the windshield did not coincide or track with his 

recollection of the crack in any way at all. Therefore, respondent's counsel emphasizes that there was not enough wrong with this 

particular windshield to justify a conclusion that the windshield 

was in other than the good condition required by section 77.1605(a). 

Counsel for the Secretary of Labor and MSHA opposes the motion 

to dismiss and he emphasized that Lacey, the operator of the end 

loader, did acknowledge and did know that there was ~· crack in the 

windshield that was 10 inches long.and that a crack in a windshield 

is sufficient to show a lack of the required good condition. 

This particular citation has given me a great deal of concern 

because I am somewhat in agreement with respondent's counsel that 

there must be some minor thing that can be wrong with a windshield 

and still be considered in good condition. I believe it was the 

operator of the previous vehicle, No. 309, who stated that if a 

windshield didn't have anything at all wrong with it, he'd consider 

it to be in excellent condition, and if it had a few cracks in it, 

he'd still consider it to be in good condition. I think that that's 

pretty much what respondent's counsel feels about the meaning of 

the phrase "good condition". 

I'm inclined to want to agree with him, except that I cannot 

get it out of my mind that if a crack in a windshield is not reported and the windshield is not replaced at the time the crack 

is first observed, I don't know whether it would get replaced at 

all until it really does become a serious hazard. At the time the 

windshield was cited, the question of safety was not as pronounced 

a consideration as it would have been, for 'example, if the inspector 

had alleged that a violation of section 77.1606(a) had occurred. 

In that section, there's a reference to equipment defects affecting 

safety which should be reported to the mine operator. I would assume 

1146 
that if the crack in the windshield had been very severe that the 

inspector might have gone so far as to cite it as a defect affecting safety, but he didn't go that far. Instead, he said that the 

windshield was not in good condition. 

I believe that the phrase "good condition" will have to be 

rather liberally construed in order to do what the Act was intended 

to do, that is, make certain that a piece of equipment is safe and 

that there won't be anything about the equipment that will result 

in a possible injury just because a given operator doesn't see very 

well in a moment of using the equipment in a certain position. 

For example, even though Lacey, the operator of end loader No. 313, 

stated that the crack didn 1 t cause him any problem at night, and 

that he didn't think there was enough reflection of artificial 

to cause a problem, he felt that in the daytime you might 

get a rainbow effect, as he called it, which might cause an obstruction in vision, or a probability that you would not see as 

well through the windshield as you would like to see. 

Since Houser, the supervisor, indicated that he would have had 

the windshield replaced if he had seen the same crack on his own, 

it looks to me as if I shall have to find, on the evidence as a 

whole, that even if I ignore the inspector's testimony that there 

were seven cracks in the windshield and I accept only Lacey's testimony that there was one half-moon crack, 10 inches long, that I 

would still have to find that this was a windshield that was not 

in good condition. Rouser's testimony shows that he would have replaced this particular windshield if he had seen it. I think that 

also shows that he would find it not to be in good condition or he 

would not replace it. 

I recognize that on redirect examination, counsel for respondent asked Houser if he would rely on the equipment operator's 

opinion if the equipment operator thought that a windshield was in 

good condition. Houser said he would have, and that he thought 

Lacey's opinion was based on sound experience and discretion. The 

fact remains that Houser had already given his opinion that a windshield with a 10-inch crack should be replaced before he was asked 

that question. Since the testimony as a whole supports a finding 

that the windshield was not in good condition, I find that there 

was a violation of section 77.1605(a) with respect to end loader 

No. 313. 

Having found a violation, it's necessary for me to assess a 

penalty. Some of the six criteria have already been considered 

above and it is unnecessary for me to repeat those details, other 

than to observe that it has already been found that respondent is 

a large operator, that payment of penalties will not cause it to 

discontinue in business, and that the violation was rapidly abated. 

1147 
I have already found that there has been one prior violation of 

section 77.1605(a). It is true that the violation I am now considering is a third violation and one could find that there are two 

previous violations, but I believe that the Act means what it says 

when it refers to "previous" violations. I don't think that two 

violations found by the inspector within a few minutes of each other 

can be considered a "history" because the operator has no opportunity to benefit from having been told twice within a 30-minute period 

that a certain condition constitutes a violation of a mandatory 

health or standard. There was simply not enough time between 

the citations for management to take any action that would keep the 

second violation from happening, based on the fact that a previous 

one had been cited a few minutes prior to that, Therefore, I shall 

make the same conclusion here with respect to history of previous 

violations that I did before, namely, that $20 should be assessed 

under the criterion of history of previous violations. 

In this instance, there probably is a slightly higher degree 

of negligence because the operator of loader No. 313 was not as 

careful and prudent in reporting this particular crack as the operator of loader No, 309 had been. Of course, one must take into 

consideration that the crack in the windshield in loader No. 313 

was less noticeable than the crack in the windshield in No. 309. 

The inspector had more difficulty in describing the extent of the 

crack in No. 313 and the operator of No. 313 found the crack to be 

so insignificant that it almost merited no reporting ··of it at all. 

Still the operator said he would have reported it if he'd had a 

radio in the vehicle to use for that purpose. The fact that the 

operator did not report it has to be considered slightly more negligent than the other one which was reported. Consequently, I 

think that a penalty of $30.00 should be assessed under the criterion of negligence in this instance. 

As to the criterion of gravity, this violation of section 

77.1605(a) was not as serious as the previous one because the inspector agreed that these cracks were much less significant. He 

saw no light refractions when he looked through the windshield, and 

since he was in some doubt about the exact location of the cracks, 

I can hardly find from his testimony that a person's vision would 

have been distorted by the cracks. While the inspector felt that 

the windshield had been weakened by the cracks, the fact remains 

that seven cracks would have weakened this windshield less than 14 

cracks weakened the other windshield. The foregoing conclusions 

assume that an ordinary layman can make such conclusions based on 

the evidence that I have. Of course, the testimony of the operator 

of loader No. 313 is that there was only one small crack at the 

lower corner of the windshield. Consequent'ly, I can only find that 

this violation was less serious than the other one, bordering on a 

finding that it was nonserious. Based on the discussion above, I 

find that a penalty of $10 should be assessed under the criterion 

of gravity. 

1148 
Since the windshield here involved was replaced with the same 

promptness that characterized replacement of the other one, I find 

that the criterion of rapid abatement should be given a great deal 

of weight. Therefore, the penalty of $60 which would otherwise be 

assessed under the criteria of history of previous violations, negligence, and gravity will be reduced by 50 percent to $30.00. 

Settlement Agreement 

As explained in the introductory part of this decision, the 

parties agreed to a settlement with respect to the other three violations in Docket No. KENT 81-77. The findings with respect 

to the contested violations are also applicable to the settlement 

agreement insofar as three of the six criteria are concerned. It 

has already been stipulated that the operator is a large operator, 

that payment of penalties will not cause it to discontinue in business, and that the violations were rapidly abated. 

Counsel for the Secretary placed into the record this morning 

the basis for the settlement insofar as the remaining three criteria are concerned. The first violation was in Citation 

No. 950537 stating that a white Chevrolet explosives truck loaded 

with various explosive materials was not securely blocked or braked 

so as to prevent the truck from rolling, as required by section 

77.1302(j). It is said that the violation was accompanied by 

ordinary negligence because the foreman knew about the truck's 

condition and had not taken to secure it thoroughly. It 

is also said that the violation is accompanied by moderate seriousness because there was a possibility that the truck could have 

rolled away from its parking place and might have caused a hazard 

to anyone who might have been in the area. 

The Assessment Office evaluated the criteria of negligence 

and gravity in about the same way that it was described on the 

record by the Secretary's counsel. Exhibit 1 in this proceeding 

doesn't show that there's been a previous violation of section 

77.1302(j). Consequently, I find that the penalty of $130 proposed by the Assessment Office was derived under the six criteria 

in an acceptable manner and that respondent's agreement to pay 

the proposed penalty in full should be approved. 

The next citation involved in the settlement agreement is No. 

950538, which alleges a violation of section 77.1302(f) because 

the explosives truck, the same one that was involved in the previous alleged violation, was found loaded with explosives, detonators, and detonating cord which had been left on the truck during 

a previous working shift. The inspector concluded that the materials were left in the truck by personnel working on the previous 

shift because the types of detonators and explosives left on the 

truck were the types used on the previous shift, but were not the 

kinds used on the shift during which he made his inspection which 

1149 
was the midnight-to-8:00-a.m. shift. The inspector considered that 

the violation was associated with ordinary negligence because the 

supervisor knew about the explosives on the truck. 

The violation was moderately serious because the truck was 

being used for transportation of personnel. Consequently, the 

Assessment Off ice found that the violation was moderately serious 

and proposed a penalty of $122. I find that to be an appropriate 

penalty and that the settlement agreement should be approved with 

respect to the alleged violation of section 77.1302(f). I should 

emphasize that all of the violations in this proceeding were rapidly abated so that the penalties otherwise assessible under the six 

criteria have been appropriately reduced to a lower amount than 

they would have been if the operator had not shown rapid abatement. 

Finally, the settlement agreement deals with a Citation No. 

951485 which alleged that a violation of section 77.1110 had 

occurred, in that the fire extinguisher on Caterpillar Dozer No. 

429 had been discharged and had not been recharged with the appropriate chemicals and, therefore, was not in an operable condition. 

Counsel for the Secretary stated that there was ordinary negligence 

involved in this violation because an examination of the fire extinguisher would have disclosed that it had been discharged and 

wouldn't operate. He indicated that the violation was only slightly serious because the dozer was located in an area which is above 

ground where the possibility of fire is not associate·d with the 

hazards which exist in an underground mine where coal dust or 

methane can be ignited by any fire that does start. 

The Assessment Office took into consideration that this violation was not as serious as the other ones mentioned above and 

proposed a penalty of $78. In view of the operator's rapid abatement, I believe that that penalty was also appropriately derived 

by the Assessment Office. Therefore, the motion for approval of 

settlement will be granted and the settlement agreement will be 

approved. 

DOCKET NO. KENT 81-78 

Citation No. 951770 (Exhibit 6), October 7, 1980, § 77.1005(a) 

When Inspector R. C. Hatter was at Martiki Coal Corporation's 

surface mine on October 7, 1980, he wrote a citation alleging a 

violation of section 77.1005(a). The findings of fact, which 

should be made in connection with whether a violation was shown to 

exist, will be set forth below in enumerated paragraphs. 

1. The conditions which the inspector described in connection 

with Citation No. 951770 began with an observation that the lowest 

bench on a highwall was about 40 feet high. The inspector believed 

that there were loose materials along the top of the bench in the 

1150 
form of sandstone and rocks, ranging in size from a fist to a hard 

hat. The inspector first noticed what he thought were hazardous 

conditions when he was looking at the bench from the pit area beneath it. In order to get a better view of the materials, the inspector went to the top of the bench and walked along the top of 

the bench. The area traversed by the inspector is shown in three 

different pictures, which have been identified and admitted in 

evidence as Exhibits A, B, and C. In each of those pictures, a 

hump is shown in the top of the bench, about halfway across the 

bench, and approximately midway in each of the pictures. The inspector walked all the way across the top of the highwall to the 

hump, and then stood on the hump and looked at the remaining part 

of the top of the bench. At one place, about a quarter of the 

way across the bench, the inspector lowered himself to the ground 

and, using his foot, eased off of the highwall one sandstone 

about the size of a hard hat. He examined the place where the 

stone landed in the pit area beneath the bench, and found that 

that place was about 10 or 12 feet from the base of the bench, 

and that the rock had broken up somewhat~ but not completely. 

2. The inspector decided that there had been a violation of 

section 77.lOOS(a) which provides as follows: "[h]azardous areas 

shall be scaled before any other work is performed in the hazardous area. When scaling of highwalls is necessary to correct conditions that are hazardous to persons in the.area, a safe means 

shall be provided for performing such work." 

3. The inspector was advised that work had been done in the 

pit area for about 2 days, and he felt that the failure to scale 

the materials along the edge of the top of the bench was an obvious condition that was hazardous and should have been scaled 

further, before work was done in the pit area. Therefore, he 

initially wrote Citation No. 951770 as an unwarrantable-failure 

citation. 

4. The Company's Safety Director, Donald McConnell, was of 

the opinion that no violation had occurred and that it was certainly 

improper for the citation to have been written as an unwarrantablefailure citation. McConnell asked Inspector Hatter's supervisors 

to come to the mine and make an inspection of the area described in 

Citation No. 951770. In response to that request, the Sub-District 

Manager, Bill Coleman, and a Surface Supervisor named Webb, came to 

the mine and made an examination of the top of the bench involved. 

It was their opinion that Inspector Hatter should not have written 

the citation as an unwarrantable-failure citation. The inspector 

thereafter modified the citation to show that it had been issued 

under section 104(a). Therefore, we are here concerned with a citation written under section 104(a), rather than 104(d)(l). 

1151 
5. Inspector Hatter was of the opinion that the highwall in 

general, which was about 200 feet high, and which had four or five 

benches above the lowest one here involved, had been well constructed and did not have hazardous materials on them. But he still 

felt that the lowest one, shown in Exhibits A, B, and C, was a 

hazardous condition, at the time he observed it. 

6. The inspector was of the opinion that the additional loose 

material that he was concerned about could have been removed by use 

of a cherry picker or by using a crane of some sort to drag a piece 

of dozer track along the top of the bench, Apparently, the Company 

did not agree that that was a safe way to deal with the situation 

and, therefore, the inspector and the Company compromised on abatement, whereby a berm was constructed at the base of the highwall, 

at a distance of about 20 feet from the highwall, and for the entire length of the bench, so that equipment could not get any closer 

to the bench than about 15 or 20 feet. 

7, The Company abated the condition very rapidly, succeeding 

in putting the berm entirely across the base of the bench by the 

end of the shift on which the citation was written, 

8. Four witnesses appeared in this proceeding on behalf of 

respondent. The first one was James David Lewis, who was the lead 

foreman during the production phase. He agreed that there were some 

rocks along the feathered edge, but he did not get up on top of the 

bench to check whether there were ·any fissures or cracks in the top 

of the bench. He also agreed that the materials at the top of the 

bench were composed of sandstone an<l slate, and that slate deteriorates more rapidly than sandstone. But it was his opinion that 

the materials at the top of the bench did not constitute a hazardous area. He emphasized that the end loaders, which worked at the 

bottom of the pit, in loading coal and cleaning off the coal, were 

equipped with heavy tops which were adequate for not only roll-over 

protection, but also to protect the operator from any falling 

materials. 

9. The next witness who testified on behalf of the Company 

was Ralph Hodson, who was also a lead supervisor. He had made an 

inspection of the bench before work was begun on October 7. It was 

his opinion that no hazardous conditions existed along the top of 

the highwall. He was familiar with the fact that there was loose 

material on the feathered edge, but he believed that the top of the 

bench had been constructed in a safe way, by having a bulldozer 

scrape it first, and following up with a shovel. He had been a 

shovel operator prior to becoming a lead supervisor, and he believed 

that the few rocks and loose materials that were left were not 

hazardous. He believed that proper techniques had been used to construct the bench. He emphasized that the bench, at its top, was not 

wide enough, after the shovel operation, to permit a dozer to go 

back and clean it again. In other words, it would have been unsafe 

to have done so. 

1152 
10. The third witness who testified on behalf of respondent 

was Robert Dixon, who was Assistant Safety Director at the time 

the citation involved was written. He had been with Inspector 

Hatter when the inspection first began. He had been down in the 

pit area when the inspector advised Dixon that the inspector believed that the top of the bench was hazardous. While Dixon did 

not agree with the inspector, it was his duty to stay with the inspector and, therefore, he accompanied the inspector to the top of 

the bench, and he walked part of the way across the top of the 

bench with the inspector. He saw the inspector push the hard-hatsized rock off the top, and noted that it landed about, in his 

opinion, 8 feet out from the bottom of the bench, He saw only one 

crack in the top of the bench, which he said was parallel with the 

bench above the lowest one which is involved in this case. Dixon 

had also made an inspection of the bench area before the inspector 

made his examination, and he, like the other two witnesses, whose 

testimony has been described above, felt that there was nothing 

hazardous about the bench which is under consideration here, 

11, The fourth witness who appeared on behalf of respondent 

was Donald McConnell who, on October 7, 1980, was the Director of 

Health and Safety, but who no longer works for the Company, having 

left on January 28, 1982. It was his testimony that he also inspected the bench on October 7, 1980. He, like the three witnesses 

whose testimony have been described above, agreed with them that 

there were no hazardous conditions existing on October 7. McConnell 

was called back to the pit area when Dixon advised him that the 

inspector was of the opinion that a citation should be written 

about the bench. 

12. McConnell had participated in the construction of the 

entire 200-foot highwall and he was particularly concerned about 

the construction of a highwall and benches which would be free of 

any kind of hazards. It was his opinion that no hazardous conditions existed. He believed that the feathered edge was a necessary 

aspect of the lowest bench, because he knew that the top of the 

bench consisted of slate and materials that would have a tendency 

to be loose. He believed that by using the dozer in advance of the 

shovel to feather the edge, any loose material would remain at the 

top of the bench and, if they did fall, they would fall directly 

below, without any hazard to people below, because of the small 

consistency of the materials. He also believed that the equipment 

that the Company used was sufficiently protective in the way it 

was designed to prevent any injuries to anyone who might be working 

in the pit at the time any loose material might come down. 

I believe those are the primary findings that should be made 

in this proceeding with respect to the alleged violation of section 

77,lOOS(a). 

1153 
Respondent's counsel has stressed the fact that, while there 

may have been some loose material at the top of the bench, that 

the construction of the bench was of such a nature that it could 

not be considered to constitute a hazardous condition. 

The Secretary's counsel has emphasized that respondent has 

placed undue emphasis on the type of equipment used by the Company, in that the Company seems to be of the opinion that its 

equipment is so well made and so adapted to the kind of operation 

involved, that no hazard exists when work is being done below the 

bench here involved. 

The crucial aspect of proof of the violation lies in the first 

sentence of section 77.lOOS(a), and that is that I must first start 

off with a finding that a hazardous area existed, because the sentence reads "[h]azardous areas shall be scaled before any other 

work is performed in the hazardous area." The question of whether 

there was a hazardous area is an extremely difficult determination 

to make, based on the evidence that exists in this case, It is 

particularly difficult, because I have the testimony of four witnesses working for the Company, and I only have the testimony of 

one inspector. It is his position that it was a hazardous area and 

it is their position that it was not a hazardous area. 

If the inspector had simply cited the operator for having loose 

material along the top of the bench, I suppose even the Company's 

witnesses would have to concede that that was true, because all of 

the witnesses agreed that there was some loose material at the top 

of the bench. The difference in interpretation is whether that 

loose material would fall and, if it did, whether the danger is so 

obvious and so great that I should label the bench area as hazardous. 

I don't really have a difference in facts here. I have four 

Company witnesses and one inspector, all of whom agree that there 

was a feathered edge at the top of the lowest bench, and they all 

agree that there was some loose material in that feathered edge. 

The difference in interpretation is the question which is before me 

for decision~ 

The inspector examined the same physical features of the bench 

which were scrutinized by the Company's four witnesses and he concluded that the area was hazardous, while the other four men looked 

at the same conditions and concluded that the area was not hazardous. To the inspector's credit, of course, must be noted the fact 

that he is the only one of the witnesses who walked along the top 

of the bench over to the hump in the middle of the bench as shown 

in Exhibits A, B, and C. Dixon is the only witness who was on top 

of the bench with the inspector and Dixon is the only Company witness who was in a position to say whether there were or were not 

cracks or fissures in the top of the bench. Dixon agreed that there 

1154 
was one crack in the top of the bench in the distance that he 

walked, which was anywhere from a quarter of the way to the hump, 

to half of the way. The inspector said there were other fissures 

in the top of the bench, between the place where Dixon stopped 

walking and the hump where the inspector stopped walking. 

I would be inclined to agree with the four men, who reached 

the conclusion that the loose material at the top of the bench was 

not a hazardous condition, if it were not for the fact that I've 

read several Commission decisions in which people have been killed 

from having been at the bottom of a highwall when there were materials that fell off the highwall. In one of those cases, 

Consolidation Coal Company, 2 FMSHRC 3 (1980), an assistant superintendent and a foreman-trainee were working at the bottom of a 

highwall when a landslide occurred and killed the foreman-trainee. 

I believe that I should interpret the mandatory safety standards in the fashion which will bring about maximum safety for the 

miners. I find that the preponderance of the evidence in this case 

shows that there were loose materials at the top of the bench and 

that there was a possibility that these materials could fall below. 

The fact that those materials existed _for 400 feet along the top of 

the highwall supports a finding that there was a hazardous area 

here. 

The cracked windshield in the end loaders involved in the 

violations previously considered in this decision were in the same 

type of end loader which was being operated below the bench involved 

in this case, that is, Caterpillar 992C end loaders. In each of 

the prior cases, the windshields had been cracked by the fall of a 

piece of material from the bucket down to the windshield, which 

would only have been a distance of from 15 to 20 feet. Now, if a 

rock falling off a bucket can crack a windshield, then it seems to 

me that a rock falling from the top of a bench, a distance of 40 

feet, is certainly capable of going clear through a windshield and 

causing an injury to the person operating an end loader. 

So, even though respondent does have instructions to its employees not to get out of equipment near a highwall, and if they 

do get out of it, to exit on the outby side of the equipment, so 

that they'll be protected from any falls from the highwall by the 

equipment itself, the fact remains that there is a possibility of 

injury from anything falling off of the highwall. I cannot find 

that the inspector was incorrect in concluding that a hazardous 

area existed. Therefore, I find that a violation of section 77.1005 

(a) was proven. 

Having found a violation, it's necessary that a civil penalty 

be assessed. The Secretary's counsel, in his concluding argument, 

asked that a large penalty be assessed if I affirmed the citation. 

1155 
The reason that he made that request is that I had pointed out, in 

some questions of McConnell, that people who work with a given condition, such as the construction of the highwall, might get complacent, or so used to seeing a certain condition, that they might fail 

to recognize its possible hazards. The purpose of civil penalties, 

of course, is to deter operators from violating a given section of 

the regulations. A large civil penalty, theoretically,' has a better 

chance of keeping a person from forgetting that a violation occurred 

than a small penalty would. A large civil penalty, however, should 

be assessed only when a large penalty has been shown to be required 

after proper consideration of the six criteria set forth in section 

llO(i) of the Act. 

As I pointed out in the previous portion of this decision in 

Docket No. KENT 81-77, some of the six criteria have already been 

the subject of a stipulation which is applicable to all the alleged 

violations. It has already been stipulated that the Company is a 

large operator, and that payment of penalties would not cause it to 

discontinue in business. 

Exhibit 1 deals with the criterion of history of previous violations. And that exhibit shows that there's been one previous violation of section 77.lOOS(a) in the last 24-month period. I believe 

that that is about as minimal a history of previous violations as a 

company could have. Consequently, I shall assess a penalty of $20 

under the criterion of history of previous violations-. 

The remaining three criteria are a good-faith effort to achieve 

compliance, negligence, and gravity. As to the negligence involved, 

I can find only a low degree of negligence, because all four supervisors involved in this case had inspected the highwall, or lower 

bench, before work was done that day, and all of them appear to be 

sincere and credible witnesses who did not feel that the material at 

the top of the bench constituted a hazardous area. Since I have had 

a lot of problems with being certain that it was a hazardous area, 

I certainly cannot fault them for having some doubts about it. 

Therefore, I shall only assess a penalty of $10 under negligence, 

because I feel there is a very low degree of negligence. 

Insofar as gravity is concerned, there doesn't seem to be any 

doubt but that there was a possibility of a serious accident if some 

of this material at the top of 'the bench should have fallen and gone 

through a windshield or a side glass and hit an operator of an end 

loader. The inspector testified, and it was generally agreed, that 

an end loader, at the time the inspector first examined the bench, 

was working within a few feet of the bench, and the operator of the 

equipment would have been, according to all· the witnesses, within 

12 to 15 feet of the bench. That would have been within the range 

of a rock that might have fallen from the bench. So I would have to 

find that it was a serious violation. At the same time, as I've 

1156 
pointed out above, there does not seem to have been a strong likelihood that an injury would have occurred even if a berm had not 

been constructed for abatement of the citation. Consequently, 

under the criterion of gravity, I believe that a penalty of $100 

is warranted. 

It has been stipulated that the Company made a rapid good-faith 

effort to achieve compliance. The stipulation is supported by the 

testimony because the Company immediately started constructing the 

required 400-foot berm and had it completed before the inspector 

left the premises, or so nearly completed, that the inspector terminated the citation. As I have already pointed out in the preceding 

part of this decision, the criterion of rapid abatement has been used 

by the Assessment Off ice and by me as a reason for reducing a penalty 

reached under the other five criteria. In the discussion of the 

other criteria above, I have derived a penalty of $130 under the 

other criteria. I believe, as I indicated in assessing penalties 

for the violations of section 77.1605(a), that the amount of the 

penalty should be reduced by 50 percent under the criterion of rapid 

abatement. Therefore, a penalty of $65 will be assessed for the 

violation of section 77.lOOS(a) alleged in Citation No, 951770. 

WHEREFORE, it is ordered: 

(A) The motion for approval of settlement with respect to three of the 

violations alleged in Docket No. KENT 81-77 is granted and the settlement 

agreement is approved. 

(B) Pursuant to the settlement agreement, Martiki Coal Corporation 

shall, within 30 days from the date of this decision, pay penalties totaling 

$330.00 which are allocated to the respective violations as follows: 

Docket No. KENT 81-77 

Citation No. 950537 10/6/80 § 77.1302(j) .•••••••••••.••• $ 130.00 

Citation No. 950538 10/6/80 § 77.1302(f) •• •••• •••.... .•• 122.00 

Citation No. 951485 10/6/80 § 77 .1110 • • • • • • . • . . . • • . . • • • . 78.00 

Total Settlement Penalties in This Proceeding ••..••.•••. $ 330.00 

(C) Within 30 days from the date of this decision, Martiki Coal Corporation shall pay civil penalties totaling $125.00 with respect to the violations which were contested. Those civil penalties are allocated to the 

respective violations as follows: 

Docket No. KENT 81-77 

Citation No. 731280 10/6/80 § 77.1605(a) 

Citation No. 751482 10/6/80 § 77.1605(a) 

••••••••••••••• 0 $ 30.00 

30.00 

Total Contested Penalties in Docket No. KENT 81-77 •••••• $ 60.00 

1157 
Docket No. KENT 81-78 

Citation No. 951770 10/7/80 § 77.1005(a) .....••••.••..... $ 65.00 

Total Penalties Assessed in Docket No. KENT 81-78 ......•• $ 65.00 

Total Contested Penalties Assessed in This Proceeding •••• $ 125.00 

Total Settled and Contested Penalties in This Proceeding .• $ 455.00 

Distribution: 

rtP~ A/1--dl. e. Jn-2J-_~"JJ~ -~il--;;--

Richard C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

George Drunnning, Jr •• Esq., Office of the Solicitor, U. S. Department 

of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

William G. Francis, Esq., Attorney for Martiki Coal Corp., Francis, 

Kazee and Francis, 111 East Court Street, P. O. Box 110, Prestonsburg, 

KY 41653 (Certified Mail) 

1158 
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. 

ADAMS COAL ENTERPRISES, INC., 

Respondent 

Civil Penalty Proceeding 

Docket No. KENT 82-10 

A. C. No. 15-10559-03002 

No. 1 Preparation Plant 

DEFAULT DECISION 

Appearances: George Drumming, Jr., Esq., Office of the Solicitor, U. S. 

Department of Labor, for Petitioner; 

No one appeared at the hearing on behalf of Respondent. 

Before: Administrative Law Judge Steffey 

When the hearing in the above-entitled proceeding was convened in 

Prestonsburg, Kentucky, on April 23, 1982, pursuant to written notice of 

hearing dated March 16, 1982, and received by respondent on March 19, 1982, 

counsel for the Secretary of Labor entered his appearance, but no one appeared at the hearing to represent respo~dent. 

Under the provisions of 29 C.F.R. § 2700.63(a), when a party fails to 

comply with an order of a judge, an order to show cause shall be directed to 

the party before the entry of any order of default. An order to show cause 

was sent to respondent on April 26, 1982, pursuant to section 2700.63(a), 

requiring respondent to show cause why it should not be found to be in default for failure to appear at the hearing convened on April 23, 1982. A 

return receipt in the official file shows that respondent received the showcause order on May 3, 1982. The time within which a reply to the show-cause 

order should have been received has passed and no reply has been submitted. 

Inasmuch as no reply to the show-cause order was submitted, I find respondent to be in default for failure to appear at the hearing convened on 

April 23, 1982. Section 2700.63(b) of the Commission's rules provides that 

"[w]hen the Judge finds the respondent in default in a civil penalty proceeding, the Judge shall also enter a summary order~ssessing the proposed penalties as final, and directing that such penalties be paid." 

I have examined the Proposed Assessment sheet in the official file and 

I find that the Assessment Office has proposed a penalty for the single violation of 30 C.F.R. § 71.802 involved in this pr~ceeding after considering 

the six assessment criteria set forth in section llO(i) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 820(i), in accordance with the 

assessment formula described in 30 C.F.R. § 100.3. Since section 2700.63(b) 

1159 
provides for the proposed assessment to be entered as a matter of course 

in a default proceeding, it is unnecessary for me to discuss the six criteria in detail. I have discussed the proposed assessment solely to have 

it reflected in my decision that the Assessment Office derived the proposed 

penalty of $28.00 in a proper manner. The small penalty is appropriate in 

this instance because respondent is a small operator, has no history of 

previous violations, and the violation appears to have been nonserious. 

WHEREFORE, it is ordered: 

Adams Coal Enterprises, Inc., having been found to be in default, is 

ordered, within 30 days from the date of this decision, to pay a civil penalty of $28.00 for the violation of section 71.802 alleged in Citation No. 

983263 dated June 1, 1981. 

Distribution: 

~~-~ c. s.J-.w;~~·'> Richard C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

George Drumming, Jr., Esq., Office of the Solicitor, U. s. Department 

of Labor, Room 280, U. S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

David H. Adams, Esq., Adams Corporation, P. 0. Box 2320, Pikeville, 

KY 41501 (Certified Mail) 

1160 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUN 241982 

AMAX CHEMICAL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Contest of Citations 

CENT 82-93-RM 517729 

CENT 82-94-RM 517732 

CENT 82-95-RL"l 517734 

CENT 82-96-1U1 517738 

CENT 82-97-RM 517739 

CENT 82-98-RM 517740 

CENT 82-99-RM 518049 

CENT 82-100-RM 518060 

Amax Mine and Refinery 

DECISION AND ORDER OF DISMISSAL 

2/2/82 

2/4/82 

2/9/82 

2/11/82 

2/ 11/82 

2/17 

2/10/82 

2/18/82 

Counsel for contestant filed on June 7, 1982, in the above-entitled proceeding a notice of contest seeking review of the validity of the citations listed in the caption of this decision. A separate docket number has 

been assigned to each of the citations, but review of all citations is sought 

in a single notice of contest, a copy of which has been placed in each of the 

folders made for the separately docketed cases. All of the cases involve the 

same operator and raise common questions of law and fact. Therefore, the 

cases are consolidated for purposes of hearing and decision. 

Counsel for the Secretary of Labor filed on June 16, 1982, a timely 

answer to the notice of contest. The answer alleges that the citations were 

properly issued under section 104(a) of the Federal Mine Safety and Health 

Act of 1977, that the citations properly allege violations of the mandatory 

standards, that contestant's mine produces products which affect interstate 

commerce, that the time for abatement given in the citations was reasonable, 

and denies all other allegations made by the notice of contest. The Secretary's answer, however, does not raise any issue about whether the notice of 

contest was timely filed. 

The notice of contest states that it is contesting the eight citations 

listed in the caption of this decision "in accordance" with section 105(d) 

of the Act and 29 C.F.R. § 2700.20. Section 105(d) reads, in pertinent part~ 

as follows: 

(d) If, within 30 days of receipt thereof, an operator of 

a coal or other mine notifies the Secretary that he intends to 

contest the issuance or modification of an order issued under 

section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or (b) of this 

section, or the reasonableness of the length of abatement time 

fixed in a citation or modification thereof issued under section 

104, * * * the Secretary shall immediately advise the Commission 

1161. 
of such notification, and the Commission shall afford an opportunity for a hearing * * * and thereafter shall issue an order, 

based on findings of fact, affirming, modifying, or vacating 

the Secretary's citation, order, or proposed penalty, or directing other appropriate relief. * * * [Emphasis supplied.] 

Section 105(d) requires that an operator file its potice of contest with 

the Secretary of Labor within 30 days after the citation or order is issued 

and the Secretary is required to notify the Commission "immediately" that 

such a notice of contest has been filed. The question of whether a notice 

of contest has been filed within the time limitation of section l05(d) depends upon how one interprets the word "immediately" in section 105(d), I 

issued a decision on January 30, 1979, in Island Creek Coal Co. v. Secretary 

of Labor (MSHA) and United Mine Workers of America, Docket No. PIKE 79-18, in 

which I treated the provision in section 105(d) that the Secretary notify the 

Commission "immediately" of the filing of a notice of contest as the equivalent of a requirement that the operator notify the Commission simultaneously 

with notification of the Secretary. In that decision, I dismissed the operator's pleading because it had not been filed with the Commission within the 

30-day time period. The Commission affirmed the dismissal in Island Creek 

Coal Co., 1 FMSHRC 989 (1979). 

Section 2700.20(b) of the Commission's rules provides that an operator 

may file a copy of its notice of contest "* * * with the Commission at or 

following the timely filing of his notice of contest with the Secretary11 • 

[Emphasis supplied.) There is no way for me to establish from the notice of 

contest filed in this proceeding exactly when it was timely filed with the 

Secretary, but it certainly cannot be considered as a timely filing because 

it was filed 125 days after the first citation (No. 517729) was issued on 

February 2, 1982, and was filed 109 days after the last citation (No, 518060) 

was issued on February 18, 1982. 

Contestant states in paragraph 10 of its notice of contest.that 11 [t]he 

issues and costs involved with these Citations are such that a hearing should 

not be deferred until penalties are assessed". In Energy Fuels Corp., 1 

FMSHRC 299, 308 (1979), the Commission held that an operator may obtain 

inunediate review of a citation, but the Commission indicated that it would 

normally be possible to postpone the hearing on the notice of contest until 

such time as the Secretary had proposed penalties so that the civil penalty 

issues could be considered in a consolidated proceeding. The Commission 

noted further that "[i]f the operator has an urgent need for a hearing, the 

Secretary could make it more ·likely that the two contests would be tried 

together by quickly proposing a penalty" (1 FMSHRC at 308-309). 

Contestant has not specifically shown in its notice of contest why it 

believes there is an urgent need for a hearing and contestant has not explained how its need for an immediate hearing can be reconciled with its 

failure to file its notice of contest for from 125 to 109 days after the 

citations to which it objects were issued. Section 2700.22 provides that 

an operator's failure to file a notice of contest "* * * shall not preclude 

1162 
the operator from challenging the citation in a penalty proceeding." 

Therefore, dismissal of the notice of contest for untimely filing will not 

prevent contestant from raising in the civil penalty proceedings the same 

defenses which it seeks to raise in its untimely filed notice of contest. 

I am aware of the fact that the Commission has referred to the legislative history and has emphasized the need to give liberal interpretation 

to the time limitations in the Act in such decisions as Victor McCoy, 2 

FMSHRC 1202 (1980), and Salt Lake County Road Department, 3 FMSHRC 1714 

(1981), but the McCoy case dealt with a miner who had filed a discrimination 

complaint and Congress has indicated that the time limitations are not to be 

treated as jurisdictional in such cases. In the Salt Lake case, the Commission was dealing with the Secretary's obligation to notify the Commission of 

the filing by an operator of a notice of contest which an operator, if it 

objects to a proposed penalty, is required to file within 30 days after receiving the Secretary's proposal of a penalty pursuant to section lOS(a) o 

the Act. In the Salt Lake case, the Commission declined to dismiss a civil 

penalty proceeding because of the Secretary's failure to notify the Commission within 45 days after the operator had filed its notice of contest. That 

decision did not change the operator's responsibility under section lOS(a) 

to notify the Secretary of its objections to a penalty proposal within 30 

days. 

The contestant in this proceeding is seeking to obtain an expedited 

hearing on citations before penalties have been proposed. In such circumstances, contestant should not be permitted to obtain an expedited review of 

the citations unless it files its notice of contest within the 30-day time 

limit. Having failed to meet the 30-day time limitation for obtaining expedited review of the citations, the operator must now wait until the Secretary 

has proposed penalties under section lOS(a) of the Act. At that time, the 

operator may challenge the citations in a civil penalty proceeding in accordance with the provisions of section 2700.22. 

WHEREFORE, for the reasons hereinbefore given, it is ordered: 

The notice of contest filed June 7, 1982, in Docket Nos. CENT 82-93-RN, 

et al., is dismissed without prejudice to contestant's right to raise in the 

civil penalty proceedings the same issues which are given in its notice of 

contest. 

~ e.<Ji~r~ Richard C. Steffey'R ~ Administrative ~aw Judge 

{Phone: 703-736-6225) 

Distribution: 

C. A. Feezer, Esq., Dow & Feezer, P.A., P.O. Box 128, Carlsbad, NM 

88220 (Certified Mail) 

Robert A. Cohen, Esq., Office of the Solicitor, U. S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

D. R. Lambert, President, Local 181, USWA, 311 South Guadalupe Street, 

Carlsbad, NM 88220 (Certified Mail) 

1163 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG Pl•~E 

FALLS CHURCH, VIRGINIA 22041 

JUN 251982 

SANDRA CANTRELL, Complaint of Discharge, 

Complainant Discrimination or Interference 

v. 

Docket lifo. WEST 82-23-DM 

GILBERT INDUSTRIAL, 

Appearances: 

Before: 

Respondent 

DECISION 

Sandra Cantrell, Bellevue, I<laho pro ~; 

Ronald F. Sysak, Esq., Prince, Yeates & Geldzahler, 

Salt Lake City, Utah, for Respondent. 

Administrative Law Judge Broderick 

STATE..MENT OF THE CASE 

Complainant filed this proceeding·under section 105(c) of the 

Federal Mine Safety and Health Act of 1977, claiming that she was 

discharged by Respondent because of safety related activity protected 

under the Act. A hearing was held in Boise, Idaho, on Hay 25, 1982. 

Sandra Cantrell testified on her own behalf. Charles Hames, James Vegh, 

William Coffey and Ernest Kihs testified on behalf of Respondent. 

Both parties waived their rights to file written proposed findings of 

fact and conclusions of law, and stated their contentions orally at the 

conclusion of the hearing. Based on the evidence presented at the 

hearing and considering the contentions of the parties, I make the 

iollowing decision. 

FINDINGS OF FACT 

1. Coflplainant was employed by Respondent beginning on March 19 0 

1981, as a du:mp person, where her basic duty was to flag and direct 

dump trucks. Her rate of pay was $8.2~ per hour. 

2o After approximately 2 or 3 weeks as a dump person she was 

promoted to the position of dozer operator and her wage was increased 

(after 1 week) to $9.25 per hour. Her basic duty was to clear dirt and 

debris froM areas previously blasted and push it over into a waste pile. 

She worked an average of 50 hours per week. 

1164 
3. On April 14, 1981, while she was operating her dozer, the 

ripper accidentally touched off a cap and primer which had been left 

in the area after blasting. 

4. The explosion shook up and frightened Complainant. It caused 

a ringing in her ears and a headache. She worked about 2-1/2 hours 

after the incident. She also worked the next and part of the 

following. She then went to a doctor for the headaches which had 

persisted since the accident. 

5. She attempted to return to work on April 23, but was unable to 

work. She returned on about May 4 although she continued to be troubled 

by headaches and back aches. Her physician recommended that she limit 

herself to light work. She worked for 3 days as a flag person at 

a pay rate of $7.00 per hour. 

6. On about April 27, 1981, Complainant called the MSHA office in 

Boise and told MSHA about the incident of April 14 and her injury, 

7. An MSHA inspector ted Respondent's facility on April 29, 

1981, and issued a citation for failure to notify MSHA of the occurrence 

of an accident as required by 30 C.F.R. § 50.10. 

8. On May 6, 1981, Complainant was laid off, and was told that her 

position (as a flag person) was terminated because a flag person was no 

longer needed on her shift and no other light duty was available. The 

foreman who laid her off was unaware of her complaint to MSHA or the 

subsequent MSHA inspection. 

9. Complainant filed a claim for worker's compensation for the 

period she was unable to work following her injury. She also filed a 

claim for unemployment compensation. 

10. Respondent needed additional flag people on approximately 

May 10, 1981. Respondent's Personnel Director pulled out Complainant's 

folder, but was unable to contact Complainant since she had no telephone. 

Other people were hired. 

11. At the time Complainant was laid off there were other dozer 

operators who continued working although they had been hired subsequent 

to Complainant. Respondent states that it is "a merit shop company," 

by which it means that it does not follow seniority, nor does it have 

to answer to any employee or employee representative in determining lay 

off policies. The employees were not represented by a union. 

1165 
12. Respondent was a joint venture, the purpose of which was to 

prepare a site for the Cypress Hill Mines. It was formed in November, 

1980, and completed its work at the site in approximately October, 1981. 

13. Following her off, Complainant did not go back to work 

until January, 1932, when she went to work at a night club. She earns 

approximately $140 to $160 per week including tips. 

CONCLUSIONS OF LAW 

1. Respondent at all times pertinent to this case was the operator 

of a mine and subject to the provisions of the Federal Mine Safety and 

Health Act of 1977. 

2. I have jurisdiction over the parties and subject matter of this 

proceeding, 

3. Complainant failed to show by a preponderance of the evidence 

that she was laid off because of any activity protected under the Act. 

DISCUSSION 

Complainant in part that she was shabbily treated in her 

workmen's compensation case, that she :was discriminated against because 

she was a woman, that when she returned to light duty following her 

injury, her pay should not have been cut, that she should have been laid 

off in accordance with seniority principles. None of these allegations 

would, if proven, establish a claim under section lOS(c) of the Hine 

Safety Act. Although Complainant did report her injury to MSHA, and 

Respondent was cited for a violation of a mandatory standard, the evidence does not show that she was discriminated against because of the 

report. She was returned to work at light duty subsequent to the report 

and inspection. I accept the evidence that the persons responsible for 

her layoff on May 6, 1981, were unaware of the report to MSHA, the 

inspection, and the subsequent citation. There is no evidence linking 

any adverse action Complainant to her call to MSHA officials. 

Thus, Complainant has failed to establish the basic requirement for 

liability under 105(c): a nexus between the adverse action and protected activity under the Mine Act. Secretary/Fasula v. Consolidation 

Coal Company, 2 FMSHRC 2786 (1980), rev'd on other grounds sub nom 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981). 

Therefore, Complainant's case must be dismissed. 

1166 
ORDER 

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

ORDERED that this proceeding is DISMISSED. 

J ti4"Kf ~ ~frz;~/l ;;L 

James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

Sandra J. Cantrell, P.O. Box 574, Bellevue, ID 83313 

Ronald F. Sysak, Esq., Prince, Yeates & Geldzahler, Third Floor Mony 

Plaza, 424 East Fifth South, Salt Lake City, UT 84111 

1167 
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 25 l98'l 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v, 

DAVIS COAL COMPANYs 

Respondent 

Civil Penalty Proceedings 

Docket Nos, WEVA 80-565 

WEVA 81-106 

WEVA 81-249 

WEVA 81-377 

WEVA 81-429 

WEVA 81-449 

WEVA 81-457 

WEVA 81-458 

WEVA 81-459 

WEVA 81-460 

WEVA 81-461 

WEVA 81-462 

WEVA 81-504 

WEVA 81-505 

WEVA 81-506 

WEVA 81-600 

WEVA 81-601 

WEVA 82-25 

WEVA 82-24 

Marie No. 1 Mine 

DECISIONS 

Appearances: Covette Rooney, Attorney, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the petitioner; Paul E. Pinson, 

Esquire, Williamson, West Virginia, for the respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

These consolidated dockets concern petitions 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 penalty assessments for a total of 176 alleged 

violations of certain mandatory safety and health standards promulgated 

pursuant to the Act. 

Respondent filed answers and contests to the civil penalty proposals, 

and pursuant to an agreement by the parties, all of the dockets were 

consolidated for hearing in Charleston, West Virginia, during the term 

1168 
May 18-19, 1982. The parties were afforded a full opportunity to present 

oral arguments concerning their respective positions, and they waived the 

filing of any posthearing briefs and/or proposed findings and conclusions. 

The issues presented in these proceedings are (1) whether respondent 

has violated the provisions of the Act and implementing regulations as 

alleged in the proposals for assessment of civil penalty filed, and, if so, 

(2) the appropriate civil penalty that should be assessed against the 

respondent for each alleged violation based upon the criteria set forth 

in section llO(i) of the Act. In these proceedings, the crucial question 

presented is whether or not the assessment of civil penalties against the 

respondent for the violations in question will have an adverse impact on 

its ability to remain in business. 

In determining the amount of a civil assessment, section 110 

of the Act consideration of the following criteria: (1) the 

operator's history of previous violations, (2) the appropriateness of 

such penalty to the size of the business of the operator, (3) whether the 

operator was , (4) the effect on the operator's ability to 

continue in business, (5) the gravity of the violation, and (6) the 

demonstrated faith of the operator in to achieve rapid 

compliance after notification of the violation, 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

30 u.s.c. § 801 ~· 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 

Stipulations 

1. The respondent is the owner and operator of the Marie No. 1 

Mine and both are subject to the provisions of the Act, 

2. The Administrative Law Judge has jurisdiction to hear and 

decide these dockets pursuant to the Act. 

3. All of the citations issued to the respondent in these 

consolidated dockets, including any terminations, abatements, 

or modifications, were properly served on the respondent by 

duly authorized representatives of the petitioner, and all 

copies of the citations in question in these proceedings which 

are attached to and made a part of the proposals for assessment 

of civil penalties are authentic copies of the original citations 

duly served on the respondent or its 

1169 
4. The respondent is a small coal mine operator producing 

87,251 production tons of coal annually, when the Marie No. 1 

Mine is operating. 

5. The Marie No. 1 Mine is not currently producing coal. 

Except for three dockets in which testimony was taken concerning the 

fact of violations, the parties stipulated as to the fact of violations 

in the remaining cases. They also stipulated as to the civil penalty 

criteria found in section llO(i) of the Act as to each of the violations, 

and these stipulations are discussed at the appropriate places indicated 

in these decisions. In addition, the parties are in agreement that none 

of the citations which were issued in these proceedings concern fatalities? 

injuries, or accidents involving miners or equipment. 

Findings and Conclusions 

Docket No. WEVA 80-565 

Fact of Violations 

This docket concerns 14 violations served on the respondent in 

December 1979, and March 1980. Two were issued for failure to properly 

insulate power cables; two for failure to guard a belt conveyor; four 

for failure to record results of weekly electrical examinations; .and 

the remaining ones for miscellaneous infractions concerning ventilation, 

an inoperative methane monitor, and failure to designate stationary 

equipment on a mine map. The parties stipulated that ail of the violations 

occurred, and they are all AFFIRMED. .· · 

Gravity 

The record establishes that the gravity and probability of harm 

occurring as a result of all of the citations, with the exception.-of 

Citations 677862, 677863, 673591~ 673592, 'ranged from low to moderate. 

As for the four citations noted, the parties stipulated that they were 

all serious infractions. 

Negligence 

The record reflects that all of the citations, except for 677861, 

resulted from the respondent's failure to exercise reasonable care, and 

that all of these violations constitute ordinary negligence. With regard 

to Citation No. 677861, the parties have stipulated that the negligence 

was low because previous inspections had not revealed any problems with 

the inoperative methane monitor which was cited. 

Good faith compliance 

The record reflects that the respondent demonstrated extraordinary 

good faith compliance concerning Citations 677798, 677799, 677861, 677862, 

and 677863 in that correction and abatement of the cited conditions was 

1170 
achieved immediately. As for the remaining citations, the respondent 

achieved compliance by abating the conditions within the time fixed 

by the inspectors. 

History of prior violations 

For purposes of this docket, the parties stipulated that respondent 

has no history of prior violations of section 75.313, 75.300-4(a), 

77.508, or 77.502-2. One prior violation of sections 75.517, 75.703, 

and 77.800-2 are noted; as well as five prior citations of 75.1722, 

eight for violations of 75.1722, four for violations of section 75.200, 

and two for section 75.512. 

Docket No. WEVA 81-106 

Fact of Violations 

This docket concerns 16 citations served on the respondent during 

April and May 1980. Three were issued for failure to keep records of 

examinations made in the mine; two were for improper fittings on power 

cables; three concerned permissibility violations on mining equipment; 

two were guarding violations for failure to guard machine parts; two 

were for failure to provide adequate fire suppression devices on a shuttle 

car and roof bolter; and the remaining ones were for miscellaneous 

electrical violations. The parties stipulated that the violations 

occurred, and all of the citations are AFFIRMED. 

Gravity 

None of the violations were deemed to be serious. The gravity 

and probability of harm occurring with respect to all of the citations 

ranged from medium to low, and citations 910981, 910982, and 910983 

were deemed to be technical recordkeeping infractions. 

Negligence 

All of the citations with the exception of six, resulted from the 

respondent's failure to exercise reasonable care. Citations 910981, 

910984, 910986, 910990, 910992, and 910994 all constituted low degrees 

of negligence in that some of the cited conditions were not readily 

apparent or occurred through inadvertence. In any event, all of the 

citations in question resulted from ordinary negligence by the respondent. 

Good faith compliance 

With regard to Citations 910989, 910990, 910992, the record 

establishes that respondent exhibited extraordinary compliance in that 

the cited conditions were immediately corrected and abated. As for the 

remaining citations, respondent exhibited good faith compliance by promptly 

correcting the conditions. 

1171 
History of prior violations 

For purposes of this docket, the parties stipulated that the respondent 

had no prior violations of section 75.305, 75.1722(a), and 75.605; 11 prior 

citations of section 75.400; six for section 75.303; five for section 

75.515; three for section 75.701; seven for section 75.503; four for 

section 75.604; and one citation of 75.1107. 

Docket No. WEVA 81-249 

Fact of violations 

Two of the citations were issued for accumulations of coal dust and 

small amounts of oil on equipment, one was for failure to follow the 

ventilation plan in that 8 permanent stoppings needed repairs, one for 

failure to guard a belt drive, one for an inadequate methane monitor 

on a continuous mining machine, and one for failure to adequately rock 

dust the roof. The citations are all AFFIRMED. 

Gravity 

The gravity and the probability of harm occurring as a result 

of all of the citations ranged from very low to moderate. The repairs 

needed for the stoppings were minor, the mining machine was permissible, 

was not overheated, and was equipped with operative fire fighting equipment, 

the mine floor was rock dusted, no methane was detected in the mine, and 

no ignition sources were present in the areas where the accumulations 

were observed. 

Negligence 

Citations 910319, 911658, 911659, and 911660 all resulted from a 

low degree of negligence on the part of the respondent in that the 

conditions cited were either beyond the control of the respondent or 

were not readily detectable. The remaining citations resulted from 

ordinary negligence. 

Good faith compliance 

Respondent demonstrated extraordinary good faith in abating the 

accumulations citation by immediately stopping production until the 

condition was corrected, and immediately rEpairing the continuous mining 

machine methane monitor. The remaining citations were abated within the 

time fixed by the inspector. 

History of prior violations 

Respondent has a history of eight prior violations of sections 

75.316, and 75.400, and no history of prior citation of the other sections 

cited in this docket. 

1172 
Docket No. WEVA 81-377 

Fact of Violations 

All four of these citations resulted from the failure by the 

respondent to submit required respirable dust samples for certain areas 

of the mine. They are all AFFIRMED. 

Gravity 

The gravity and probability of harm occurring as a result of all 

of the violations described in the Citations were low.in that failure 

to submit the samples of the areas for the bi-monthly periods, would not 

per be likely to lead to harm to an employee. 

Negligence 

All of the citations constituted ordinary negligence in that the 

respondent failed to exercise reasonable care in insuring that the 

required samples were submitted. 

Good faith compliance 

The respondent was unable to abate the violations since the bi-monthly 

sampling period had passed. Accordingly, no abatement was required. 

History of prior violations 

The respondent has a .history of one violation for 30 C.F.R. 70.207(a). 

Docket No. WEVA 81-429 

Fact of Violation 

The violation issued after the inspector observed scaling of the roof 

in a portion of the track area of the mine. The citation is AFFIRMED. 

Gravity 

The gravity and the probability of any harm resulting from the 

cited condition were moderate. 

Negligence 

The violation resulted from a low degree of negligence in that the 

deterioration observed by the inspector cannot be controlled by the 

operator. 

Good faith compliance 

The respondent demonstrated ordinary good faith compliance by 

correcting the condition within the time specified by the inspector. 

1173 
History of prior violations 

Respondent has no history of prior violations of section 75.205. 

Docket No. WEVA 81-449 

Fact of Violations 

One citation concerns the failure by the respondent to maintain a 

roof bolter in permissible condition. The remaining four were issued 

because the respondent failed to submit respirable dust samples for 

certain designated sampling cycles. They are all AFFIRMED. 

Gravity 

The gravity concerning the roof bolter citation was minimal since 

no methane was present in the area and the probability of harm was remote 

since only one bolt was missing on the machine. The gravity connected 

with the sampling citations was low since it was improbable that any 

exposure to dust during the sampling cycle could result in any harm. 

Good faith compliance and negligence. 

The respondent demonstrated extraordinary good faith abatement to 

achieve compliance regarding the permissibility citation in that power 

was immediately removed from the machine and it was repaired. With regard to 

the sampling citations, no abatement was required since the sampling period 

had passed. All of the citations resulted from ordinary negligence. 

History of prior violations 

For purposes of this docket, the parties stipulated that the 

respondent has a history of five prior violations of section 75.503; 

one prior violation of section 70.207(a); and three prior violations 

of section 208(a). 

Docket No. WEVA 81-457 

This docket concerns 20 citations issued to the respondent during 

November and December 1980. Five were issued for inoperative fire 

sensor alarms on the conveyor belt line; two were for inoperative water 

deluge systems; four were for the failure to record the results of certain 

preshift and on-shift examinations; three for failure to remove combustibles 

(grass, weeds, and oil cans) found near certain equipment; four w~re 

electrical violations for improper fittings and bushings on cables; and 

two were roof control violations for improper roof bolts and failure to 

provide an approved torque wrench. The parties stipulation that all of 

the violations occurred, and the citations are all AFFIRMED. 

1174 
Gravity 

The gravity and probability of harm occurring as to all of the 

citations ranged from low to moderate. 

Negligence 

None of the violations in question resulted from gross negligence 

by the respondent, and all of the conditions or practices cited were 

the result of low or ordinary negligence. 

Good faith compliance 

With regard to 11 of the citations, respondent demonstrated extraordinary good faith compliance by immediately correcting the conditions 

and abating the violations.* As for the others, abatement was achieved 

through prompt corrections of the conditions within the time fixed by 

the inspectors. 

History of prior violations 

For purposes of this docket, the record reflects that the respondent 

has no prior citations for violations of sections 75.323 75.1103-S(b), 

75.305, 75.90l(a), and 75.1101-3. Two prior citations are reflected 

for section 75.512, four for sections 75.515 and 75.200, one each for 

77.504 and 75.1103, and eight prior violations of section 75.400. 

Docket No. WEVA 81-458 

Fact of violations 

This docket concerns twenty citations served on the respondent 

during December 1980, and January and February 1981. The citations were 

issued for a variety of infractions dealing with accumulations of 

combustible materials, violations of the mine ventilation plan, improper 

fittings on power cables, failure to have an up-to-date mine map, the 

existence of stumbling hazards in a surface shop, an unsafe roof bolter, 

storage of compressed gas cylinders in an outside shop area without 

proper valve covers, lack of insulation and proper bushings on certain 

power cables, failure to record examination results in an approved book, 

failure to lock a gate on a power substation, and the accumulations of 

combustibles on certain mine equipment. All of the conditions or practices 

cited are a matter of record, and the parties stipulated that the violations 

did in fact occur. Accordingly, all of the citations are AFFIRMED. 

Gravity 

The parties stipulated that Citations 918006, 918008, 918009, 

876570, and 910293 were all serious violations. They also stipulated 

that that the gravity connected with the remaining citations were in four 

cases minimal, and as to the others the gravity was low or null, and 

that these were all nonserious infractions. 

*/ Citations 916581, 916582, 916583, 916585, 916586, 916588, 916589, 

916592, 916594, 916596, and 916648. 

1175 
Negligence 

The parties agreed that Citations No. 912395 and 912396 were the 

result of no negligence on the part of the respondent. They also agreed 

that Citations 918322 and 918324 through 918328 resulted from a low 

degree of negligence on the part of the respondent, and that the remaining 

citations resulted from ordinary negligence. I conclude and find that 

except for the citations indicating no negligence, the remaining violations 

demonstrated a lack of reasonable care and therefore constitute ordinary 

negligence. 

Good faith comnliance 

The parties stipulated that the respondent demonstrated extraordinary 

good faith compliance by immediately correcting the conditions cited in 

Citations 918008 and 918328. As for the remaining citations, they agreed 

that the respondent promptly corrected the conditions and achieved 

abatement within the time frames specified by the inspectors. 

History of prior violations 

For the purposes of this docket, the parties stipulated that the 

respondent has a history of 14 prior violations of section 75.400; 

two for section 75.1104; three for section 75.1101-3; four for section 75.1725; 

five for section 75.701; 13 for section 75.316; six for section 77.505; 

three for section 75.1200; five for section 75.504; six for section 75.212; 

three for section 77.502; and no prior citations of sections 75.1725(2), 

75.1400-4, 77.205(b), 77.509(c), and 77.208(e). 

Docket No. WEVA 81-459 

Fact of Violations 

This docket concerns 20 citations issued to the respondent on 

February 17 and 24, 1981. Two citations concern an inoperative methane 

monitor on a continuous mining machine; four are permissibility violations 

concerning loose bolts in a roof bolter panel, a loose light, and improper 

openings in a panel box; three are for accumulations of combustible 

materials on a bolter and in the roadway; three concern improper bushings 

on a cable and broken conduit; two are for improper identification for a 

belt head and a miner power connector; one was issued for a disconnected 

fire suppression system on a scoop; one for an inoperative deenergizing 

device on a scoop; and two were issued because of a missing wheel cover 

and a bolt on a scoop. The parties stipulated to the fact of violations, 

and all of the citations are AFFIRMED. 

Gravity 

The parties stipulated that two of the citations (917629, 917636), 

were serious. Eight of the remaining citations were nonserious, with a 

low degree of gravity in that it was improbable that any injuries would 

result, and the remaining citations were of a minimal degree of gravity. 

1176 
Negligence 

The parties stipulated that Citations 917622, 918337, 918338, 918339, 

918340, and 917627 were the result on no negligence on the part of the 

respondent. They agreed that Citation No. 917630, concerning accumulations 

along the entire mantrip roadway for a distance of 8,650 feet resulted 

from respondent's "extreme negligence" but that no ignition sources were 

present. Further, they stipulated that the remaining citations were the 

result of respondent's failure to exercise reasonable care, and that this 

constitutes ordinary negligence. 

Good faith compliance 

The record reflects that the respondent demomstrated normal good 

faith compliance in promptly correcting the cited conditions within 

the time fixed by the inspectors in all but one citation. That citation, 

No. 917631, was abated through rapid compliance by the respondent. 

History of prior violations 

For purposes of this docket, the parties stipulated that the 

respondent has no prior citations for violations of sections 75.1107-16(b) 

or 75.523-2(c); 17 prior citations of section 75.400; two citations of 

sections 75.313 and 75.904; three citatior13of section 75.515; and one citation 

of section 75.1725(a). 

Docket No. 81-460 

I take note of the fact that Citation No. 917642, February 24, 1981, 

was assessed at 11 zero" by MSHA's assessment office, and a notation on 

the pleadings filed by the petitioner reflects that the citation was 

subsequently vacated. Under the circumstances, this citation is dismissed. 

With regard to the remaining 19 citations issued in this docket, 

the record reflects that three were guarding citations for failure to 

provide adequate guards for equipment; ten concerned miscellaneous 

citations for failure to properly insulate power cables, improper cable 

bushings, and failure to install power cables on proper insulators; two 

were for failure to provide fire extinguishers; two were for improper 

electrical guarding devices; and one for failure to vent a battery charging 

station. The parties stipulated that all of the violations occurred, 

and the citations are all AFFIRMED. 

Gravity 

The record reflects that the gravity and probability of harm occurring 

as a result of all of the citations which have been affirmed in this 

docket ranged from low to moderate. 

1177 
Negligence 

With the exception of Citation No. 917651, the record establishes that 

all of the remaining citations constituted ordinary negligence and resulted 

from the respondent's failure to exercise reasonable care. With regard 

to citation 917651, the record reflects that the negligence was low inasmuch 

as the cited loose cable bushing resulted from inadvertent machine 

vibration. 

Good faith compliance 

With regard to Citation No. 917639, respondent demonstrated extraordinary 

good faith compliance by immediately removing power from the equipment 

and repairing the cable insulation. The same applies for Citations 917640 

and 917643, where the respondent immediately removed the equipment 

from service and installed a guard on the feeder coupler, and immediately 

placed an identification tag on the cat head. As for the remaining 

citations, the record establishes that the respondent demonstrated good 

faith compliance by correcting all of the cited conditions and practices 

within the times specified by the inspectors. 

History of prior violations 

For purposes of this docket, the parties stipulated that respondent 

has four prior violations of section 75.515, one prior citation of section 

75.807, and no prior citations for the remaining cited mandatory standards. 

Docket No. WEVA 81-461 

Fact of Violations 

Citation No. 917753, March 6, 1981, citing 30 CFR 75.515, was vacated 

by MSHA on June 1, 1981, after completion of a further investigation. 

With regard to the remaining 19 violations, four were issued for 

inadequate guards on belt conveyor pulleys; eleven were for improper 

motor cable bushings, lack of insulators on cables, and failure to guard 

power cables; two were for missing bolts on a motor and a scoop; one 

for failure to provide a good fire extinguisher on a belt conveyor; and 

one roof control violation for loose roof bolts. The parties stipulated 

that all of the violations occurred, and all of the citations are AFFIRMED. 

Gravity 

Except for citations 917750, 917751, 917755, and 

parties agreed were serious, the gravity regarding 15 

citations was low, and one involved moderate gravity. 

concerned improbable nonserious hazards. 

1178 

917761, which the 

of the remaining 

All of these 
Negligence 

All of the citations were the result of respondent's failure to 

exercise reasonable care, and they all constitute ordinary negligence. 

Goodfaith compliance 

Respondent corrected all of the cited conditions within the time 

fixed for abatement, and demonstrated ordinary good faith compliance as 

to all of the violations. 

History of prior violations 

The record reflects six prior citations of section 75.1725(a); 

10 prior violations of section 75.515; four citations for section 75.1722(a); 

six for section 75.506; seven for section 75.517; five for section 75.807; 

16 for section 75.200; and no prior citations for violations of sections 

75.516.Z(c) or 75.1100.Z(e)(l). 

Docket No. WEVA 81-462 

Fact of violations 

Two of the citations were issued for coal dust accumulations along 

the belt head, one for failure to provide a proper bushing for a switch 

power cable, one for failure to guard a tail piece roller, one for failure 

to adequately support the roof along the track ·slope, and one for failure 

to provide a bumper block at the raw coal dump. All of the citations are 

AFFIRMED. 

Gravity 

The gravity and the probability of harm occurring a result of five 

of the citations ranged from low to moderate. No methane was detected 

in the areas of the coal accumulations, but the presence of an ignition 

source could have resulted in a fire. The roof support violation was 

serious in that the existing roof bolts were not providing adequate roof 

support and someone could have been seriously injured had a roof fall 

occurred. 

Negligence 

All of the citations resulted from ordinary negligence on the part 

of the respondent. 

Good faith compliance 

Respondent demonstrated good faith compliance as to four of the 

citations by abating the conditions within the time fixed by the inspector. 

Regarding the bumper block citation, respondent demonstrated extraordinary 

efforts to comply by immediately installing a bumper at the raw coal dump. 

1179 
History of prior violations 

Respondent has a history of 18 prior violations of section 75.400, 

10 prior violations of section 75.515, four violations of section 75.1722(a), 

16 violations of section 75.200, and one prior violation of section 

77.1605(1). 

Docket No. WEVA 81~506 

Fact of violations 

One of the citations was issued for failure to provide fuse protection 

on a piston pump at the slope bottom, and a second one was issued for failure 

to provide a fire extinguisher in the maintenance shop. These are both 

AFFIRMED. 

Gravity 

The degree of gravity with regard to both citations was moderate. 

Negligence 

Both citations resulted from the respondent 1 s failure to exercise 

reasonable care, and this constitutes ordinary negligence. 

Good faith compliance 

Respondent demonstrated extraordinary compliance by immediately 

providing a fire extinguisher for the shop, and by promptly providing 

fuse protection for the pump in question. 

History of prior violations 

Respondent has a history of two prior violations of section 77.506, 

and one prior violation of section 77.1109(a). 

Docket No WEVA 81-601 

Fact of violation 

This docket concerns Citation No. 911888, issued on June 2, 1981 

for a violation of 30 CFR 75.316, for failure by the respondent to submit 

an annual review of a ventilation plan to MSHA. The parties agreed that 

a violation occurred, and the citation is therefore AFFIRMED. 

Gravity 

The parties stipulated that inasmuch as the respondent did in fact 

have an effective ventilation plan at the time the citation issued, the 

fact that it failed to submit a copy to MSHA had a minimal gravity level, 

and the violation was not significant or substantial. 

1180 
Negligence 

The parties are in agreement that the violation resulted from ordinary 

negligence on the part of the respondent. 

Good faith compliance 

The plan was subsequently submitted to MSHA for review within the time 

allotted by the inspector. Therefore, the respondent demonstrated good 

faith compliance. 

History of prior violations 

The parties stipulated that the respondent has a history of eight 

prior violations of section 75.316. 

Docket No. WEVA 82-25 

This docket concerns eight citations served on the respondent during 

the period May through August 1981. Three citations were issued for 

failure by the respondent to submit respirable dust samples for certain 

sampling periods; one was issued for inadequate rock dusting; one for 

permitting combustible materials to accumulate; one for failure to install 

a power cable on insulators; one for having shields off a battery car 

and the batteries were cracked; and one for failing to maintain a second 

floor travelway safe in that a floor board was-missing, thereby exposing 

a hole. The parties stipulated that all of the violations occurred, and 

therefore, the citations are AFFIRMED. 

Gravity 

The parties agreed that none of the citations were significant or 

substantial, and that the gravity or probability of harm occurring as a 

result of the violations was minimal or moderate. 

Negligence 

The record establishes that all of the citations resulted from the 

respondent's failure to take ordinary care, and that this amounts to 

ordinary negligence. 

Good faith compliance 

With regard to the respirable dust citations, the parties stipulated 

that abatement could not be achieved since the sampling cycle had passed 

at the time the citations issued, As for the remaining citations, the 

parties stipulated that respondent demonstrated ordinary good faith 

compliance by correcting all of the conditions cited by the inspectors 

within the time fixed for abatement. 

1181 
History of prior violations 

For purposes of this docket, the parties stipulated that the respondent 

has a history of 18 prior violations of section 75.400; seven prior 

violations of section 75.750 and 75.1725(a); one prior violation of 

section 77.205(a); and six prior violations of section 70.208(a). 

Docket No. WEVA 82-24 

Fact of violations 

This docket concerns four citations issued to the respondent in 

December 198D, for (1) failure to submit an escape and evacuation plan 

to MSHA, (2) failure to submit a plan for emergency medical assistance, 

(3) failure to provide a deenergization device on a machine, and (4) 

failure to provide adequate illumination in locations of the preparation 

plant. The parties stipulated that the violations occurred, and therefore 

all of the citations are AFFIRMED. 

Gravity 

The parties stipulated that Citation No. 918012 was serious, but 

that the probability of harm occurring as a result of the remaining three 

citations was minimal or moderate. 

Negligence 

All of the citations resulted from the respondent's failure to 

exercise reasonable care, and this amounts to ordinary negligence. 

History of prior violations 

The parties agreed that for purposes of this docket, respondent 

has a history of no prior citations of sections 75.1101-23(a), 75.1713, 

or 77.207, and three prior violations of section 75.523. 

Docket No. WEVA 81-504 

This docket concerns a section 107(a) imminent danger order issued 

by MSHA Inspector Edward M. Toler, on December 9, 1980, charging the 

respondent with an alleged violation of mandatory safety standard 

30 CFR 77.701, for failure to properly ground a water pump (Ex. P-1). 

In support of the violation, MSHA presented the testimony of Inspector 

Toler. He confirmed that he inspected the mine on the day in question 

and that he issued the citation after determining that the frame ground 

wire on the pump was not connected to a ground. The condition was 

detected after he observed slate picker Fred Brewer being shocked from 

contacting the pump. Mr. Brewer stated that he had received a shock 

from the pump when he attempted to prime it, and the pump was being 

used to pump water to the tipple. A company electrician accompanying 

him on the inspection confirmed the violation and discovered that the 

ground was not connected. The electrician advised him that he was not 

1182 
aware of the condition, and Mr. Toler stated that he could find no evidence 

that the monthly electrical examinations had been made, but he conceded 

that mine operator Davis was not at the mine. The inspector conceded 

that such examinations ·are generally conducted by visual examinations 

rather than the dismantling of the equipment. The inspector confirmed 

that abatement was achieved within 45 minutes or an hour of the issuance 

of the order (Tr. 8-24). 

Mine owner and operator Winford Davis testified in defense of the 

citation. He testified that the problem with the pump was not with the 

grounding unit, but rather, with the power cable coming to the pump 

ground. He was unaware of the fact that the ground wire had come loose, 

but conceded that the slate picker advised him of a "slight shock" when 

he touched the pump. The condition was abated in a matter of minutes, 

and he has qualified electricians on the site to take care of such problems.· 

He had no knowledge of the condition because it could not be detected 

by visual examination, but he acknowledged that monthly checks were required 9 

and he surmized that this was being done. Mr. Davis also alluded to some 

problems with the local power company t..s, power system (Tr. 24-37). 

Fact of violation 

Upon consideration of the testimony concerning this violation, I 

conclude and find that MSHA has established a violation of the cited 

mandatory safety standard. Section 77.701, requires the grounding of 

metallic frames, casings, and other enclosures of electric equipment. 

I conclude that the testimony of the inspector established that the water 

pump in question was no~ properly grounded, and that this constitutes 

a violation of the cited standard. Accordingly, Citation No. 918017 

is AFFIRMED. 

Gravity 

I conclude and find that this citation was extremely dangerous. 

The slate picker in question was observed receiving a shock from the 

water pump which was not properly grounded. Mine operator Davis confirmed 

that the slate picker had advised him that he was "slightly shocked" 

when he touched the pump. However, what may be a "slight shock" one day 

may well be a fatal .one the next. 

Negligence 

I conclude and find that the condltions cited as a violation should 

have been detected by .the mine through .the required electrical inspections. 

While it may be true that the condition was caused by a loose ground wire 

which was not readily observable~ testing of the equipment during the 

required examinations would probably have revealed·the cited condition. 

Under the circumstances, I conclude that' the respondent failed to exercise 

reasonable care and was negligent. 

1183 
Good faith abatement 

The condition was corrected in some 45 minutes after the issuance 

of the withdrawal order, and compliance was achieved by reconnecting the 

loose ground wire. 

History of prior violations 

The solicitor stated that for the 24 month period prior to the 

issuance of the instant citation on December 9, 1980, respondent had 

been assessed for three prior violations of section 77.701 (Tr. 135). 

Docket No. WEVA 81-505 

This docket concerns eight citations served on the respondent during 

November and December 1980, charging the respondent with five violations 

of mandatory safety 30 CFR 77.506, and one violation of sections 75.302-1, 

75.301, and 77.701. One citation was issued pursuant to section 104(d)(l) 

of the Act, and seven were section 104(d)(l) "significant and substantial 

unwarrantable failure withdrawal orders. 

Inspector Toler confirmed that he inspected the mine on November 18, 

1980, and issued section 104(d)(l) Citation No. 916590, citing a violation 

of section 75.302-1, because a ventilation line curtain where mining was 

takirg place was not installed for a distance of at least 10 feet from 

the face (Ex. P-2). He measured the distance in question and found 

that the curtain was approximately 35 feet from the face. The mining 

machine was in operation and mine management should have been aware of 

the condition (Tr. 38-42). 

Mr. Toler believed that the conditions were hazardous because the 

whether was cold, the mine was extremely dusty, and it has a history of 

methane. There was a likelihood of an explosion, and seven people 

working at the face would have been affected by the hazard (Tr. 42). 

On cross examination, Mr. Toler conceded that there had never been 

a fire or explosion at the mine, but that the presence of methane has 

been confirmed by test analysis of air samples taken in the mine. He 

also confirmed that there was an excessive amount of dust suspended in 

the atmosphere on the day in question, and that the ventilation requirement~ 

of the approved plan were violated. The purpose of maintaining the 

curtain 10 feet from the face is to sweep away noxious gases and dust 

from the face area (Tr. 43-49). Abatement was achieved within 15 minutes 

and the curtain was extended to the required distance toward the face 

(Tr. 50). 

Inspector Toler confirmed that he also issued withdrawal order 

916591 on November 18, 1980, citing a violation of section 75.301 

(Ex. P-3). He did so after determining that the face ventilation in 

the No. 1 room, 014 No.l section where a continuous miner was operating 

1184 
and mining coal was inadequate. The ventilation was measured with an 

anemometer and smoke tube and no measurement could be made as there was 

no movement of the smoke, and .2 percent methane was present at the 

last roof bolt from the working face. Section 75.301 requires 3,000 

cubic feet of air a minute at the end of the ventilation curtain (Tr. 50-

52). 

Mr. Toler stated that Don Davis was operating the mining machine, 

and since he was part of mine management, he should have been aware 

of the ventilation plan requirements. Lack of ventilation presented 

a hazard of methane, and with the dust in suspension, and an 

was likely (Tr. 53). Seven men would have been affected, and the violation 

occurred in the same area as Citation No. 916590 (Tr. 54). 

On cross-examination, Mr. Toler confirmed that the order issued 

after the curtain was extended the required distance to abate the 

citation be issued, but the required amount of ventilation could not be 

induced. He explained that the curtain was not wide enough and he described 

it as "a piece of junk". Although he noticed the condition of the curtain 

as it was being installed, he said nothing about it and then issued the 

order (Tr. 56). However, at the time, it was his understanding that the 

curtain in question was the same one installed to terminate the 

citation (Tr. 57). 

Mr. Toler stated that abatement was achieved after additional line 

curtain was brought into the mine, and repairs were made to insure that 

it extended far enough (Tr. 59). 

-- Mr. Toler confirmed that he issued section 104(d)(l) closure order 

No. 918015 on December 9, 1980, citing a violation of section 77.701, 

after observing that electrical equipment in the mine preparation 

was not provided with frame grounding for the metal frames and enclosures 

(Ex. P-4). He closed down all of the preparation plant electrical equipment. 

He detected the violation after discovering that a 440 A.C. electric motor, 

with three phases and a ground did not have the required four wires, 

with one connected to the ground lug. He also determined that none of 

the plant motors were grounded because the grounding wire from the 

to the transformer station was not connected, and therefore, no grounding 

could be maintained within the plant (Tr. 61-62). 

Mr. Toler believed that the conditions cited should have been 

detected through the monthly electrical inspections. The conditions 

constituted a shock hazard, and it was likely that two men would have 

been exposed to this hazard. The plant is exposed, and the rain and snow 

contributed to the hazard (Tr. 64). 

Mine operator Winford Davis -testified that he believed the grounding 

system for the plant in December 1980 was adequate to preclude any shock 

hazards. He attributed the violation to a loose neutral wire behind 

the switch box panelling which was not visible. The wire was actually 

1185 
cut, but all of the equipment was grounded through the plant neutral 

grounding system. In order to abate the citation, individual wires had 

to be installed from each piece of equipment directly to the transformer. 

The tipple was 40 years old, and it had to be completely rewired. 

He had not been previously advised by the plant electrician that the 

grounding was faulty (Tr. 67-71). 

On cross-examination, Mr. Davis conceded that he ~as aware that 

monthly electrical examinations must be made and that the equipment 

must be tested. However, he is not an electrician (Tr. 72). 

MSHA Inspector Harold E. Newcomb confirmed that he issued order of 

withdrawal number 0640145 pursuant to section 104(d)(l) of the Act on 

December 10, 1980 (Ex. P-5). He cited a violation of section 77.506 

when he found that proper overload and short circuit protection was not 

provided for the No. 12 conductor cable supplying power to the 480 volt 

A.C. clean coal elevator located on the third floor of the plant. The 

fuses protecting the circuit were "bridged out" with stranded wire. 

Mr. Newcomb stated he has a B.S. degree in electrical engineering and 

confirmed that he conducts MSHA electrical inspections and assists in 

"electrical problems". He testified that a 25-amp fuse should have been 

protecting the circuit, rather than the No. 8 stranded wire, which probably 

provided 45 or 50 amps. The original fuse had at some prior time blown 

out and someone replaced it with the stranded wire which is not an approved 

fuse device. A proper fuse would have deenergized the circuit in the 

event of an overload, but the wire would not and the circuit could have 

overheated and melted the wire (Tr. 74-77). 

Mr. Newcomb stated that the monthly electrical examination should 

have revealed the fuse condition, and he believed the hazard in question 

presented a fire or electrical shock hazard to at least one employee, 

and the prior citation concerning lack of proper grounding contributed 

to the gravity. The condition was abated after a proper sized fuse was 

purchased for the circuit in question (Tr. 78). He also confirmed that 

Mr. Davis conceded to him that the plant was "electrically run down", 

but Mr. Davis made no statement that he was aware of the fuse condition 

in question. A qualified electrician, however, should know that a fuse 

should not be replaced with a piece of wire (Tr. 82), but anyone could 

have replaced the fuse with a piece of wire (Tr. 83). 

Mr. Newcomb confirmed that he also issued section 104(d)(l) orders 

of withdrawal Nos. 0649146, 0640147, and 0640148 on December 10, 1980, 

citing violations of section 77.506. The first citation was issued because 

overload and short circuit protection was not provided for the No. 12-4 

conductor cable extending from the main plant switch box to the 480 

volt water pump and coal belt located on the third floor. The circuit 

was protected with a 200-amp fuse, which is not the proper size in that 

it was too large. The second citation issued after he found the fuses 

on the power cable supplying 480 volts a.c. t0 the 10 horsepower vibrator 

had been bridged out with a piece of wire. A 20 amp fuse should have 

been used. The third citation also involved a fuse which had been bridged 

1186 
out with a piece of wire on the circuit for the No. 10-4 conductor cables 

supplying power to the 15 H.P. circulating pump. The proper fuse was 

one of 45 amp capacity, and the stranded wire did not provide this. 

All of the citations were issued for failure to provide proper overload 

and short circuit protection (Exhs. P-6 through P-8; Tr. 86-95). 

Mr. Newcomb stated that the cited conditions concerning the fuses should 

have been discovered by mine management through the required monthly 

electrical examinations. He also believed that the conditions cited 

presented shock and fire hazards. 

MSHA Inspector Michael L. Deweese confirmed that he is an electrical 

inspector and that he issued section 104(d)(l) withdrawal order 876569 

on December 10, 1980, at the preparation plant (Exh. P-9), He cited 

a violation of section 77,506 after finding that overload and short circuit 

protection was not provided for the No. 12 wire supplying 220 volts to 

the "gas pump" located on the second floor. Three 200 amp fuses were 

being used to protect the circuit, and 20 amps is the proper size. The 

condition was hazardous in that in time, the circuit could have become 

overloaded and the resulting short circuit caused by the failure of the 

fuses to function properly could cause a fire or shock hazard to one person. 

The operator 1 s monthly electrical examinations should have detected the 

condition (Tr. 98-101). 

On cross-examination, Mr. Deweese stated that Mr. Davis conceded 

that the plant was in a run-down electrical condition, but he did not 

state that he knew the cited condition existed. Mr. Deweese had no 

idea how long the over-sized fuse had been in the equipment, and indicated 

that it would take about a minute to change it (Tr. 105). 

Mine Operator Winford Davis testified in regard to the aforementioned 

five electrical citations concerning improper overload and short circuit 

protection. He stated that the company regularly purchases proper sized 

fuses for use by its employees, and they are kept in the supply house. 

Fuses are supposed to be stocked for emergencies, and employees are 

instructed to stop by the supply house and obtain them if they are needed. 

They were also authorized to purchase them at a local hardware store. Mr. 

Davis stated further that the tipple in question was originally constructed 

in 1941 and 1942, and at the time of the MSHA inspection the plant still 

had the original wiring. Practically all of the electrical equipment 

in the plant had to be replaced and money was in short supply at the time. 

Fuses were not expensive, but switch boxes and line starters were. 

All of the cited conditions were eventually abated (Tr. 106-109). 

He had no idea that improper fuses were being used and they too were 

replaced with proper fuses (Tr. 110). 

Fact of violations 

I conclude and find that MSHA has established by a preponderance of 

the evidence that each of the violations cited in this docket occurred 

as charged in the citation and orders issued by the inspectors. The 

testimony and evidence adduced by MSHA supports each of the citations 

and orders issued, and they are all AFFIRMED. 

1187 
Gravity 

I conclude and find that all of the citations in question in this 

case were serious violations. The electrical citations presented 

possible shock and fire hazards, and the others presented mine ventilation 

hazards as well as possible methane and coal dust explosions or fires. 

Negligence 

I conclude and find that the respondent was negligent in failing to 

discover the cited conditions which resulted in the issuance of the citation 

and orders in this case. Properly conducted pre-shift and on-shift 

examinations of the mine, the plant, and the electrical equipment in 

question would have detected the cited conditions. 

Good faith compliance 

Although it is true that the respondent corrected and abated all 

of the conditions and practices cited in this case, several of them almost 

immediately, the fact is that they were abated as a result of withdrawal 

orders issued by the inspectors. In any event, there is no evidence 

of any lack of good faith compliance on the part of the respondent. 

History of prior violations 

The solicitor stated that for the 24-month period prior to the 

issuance of the citations in question in this case, the respondent had 

one prior assessed violation of section 75.302-1, two for violations of 

section 75.301, three for violations of section 77.70l~and five for 

violations of section 77.506. 

Docket No. WEVA 81-600 

MSHA Inspector Thomas B. Marcum testified that he issued section 104(d)(2) 

withdrawal orders 917653 and 917657, on March 2 and 4, 1981, during a 

regular inspection of the mine (Ex. P-10 and P-12). The first order cited 

a violation of section 75.807, after he found that an 800 foot long 

voltage cable from the No. 6 belt head to the section was not hung or 

placed properly so as to protect it from damage. The cable was a 4,160 

volt cable, and it was lying on the mine floor alongside the section 

mantrip roadway, and it had been run over by the man trip in several areas, 

and he observed the tracks where it had been run over. The roadway was 

used daily by the three shifts coming and going. He believed that the 

cable had been on the roadway for some time, and the operator should 

have been aware of its location because the roadway is traveled everyday, 

and it should have been detected during any pre-shift examination. The 

cable should have been hung on J-hooks, and the failure to do so presented 

a shock hazard in the event the cable became damaged (Tr. 118-122). 

On cross-examination, Mr. Marcum confirmed that most of the cable 

in question was properly hung on J-hooks, but that the cited 800 foot 

portion was not. The man-trip vehicle is a rubber tired vehicle, and 

1188 
the cable is insulated with armored-shell steel which provides high 

protection. He has never seen this type of cable being penetrated by 

running over it with rubber tired equipment, and the cable was the main 

power source coming from the outside underground. He saw no J-hooks 

installed along the places where the cable was lying, and no one explained 

to him why it was not hung properly (Tr. 123-127). 

With regard to the second order, Mr. Marcum stated that he cited a 

violation of section 75.518 after discovering that the S & S scoop charger 

for the 014 Section was not provided with fuse protection in that a fuse 

had been bridged out with a wire (Tr. 127). The wire was installed alongside a fuse but he did not know whether the fuse was blown out or not. 

Even if the fuse were working, the presence of the wire next to it was not 

proper because this would permit more current to flow through the cable. 

He believed the condition constituted a shock or burn hazard, and in the 

event of a fire or smoke, the men on the section would be exposed to 

a hazard (Tr. 130-131). Mr. Marcum stated that the fuse was located 

inside the scoop battery charger, and he discovered the condition when 

he found that the charger lid only had one bolt in it when it should 

have had three. He opened the lid and found the condition in question. 

He conceded that he had sometimes bridged fuses in the same manner when 

he worked as a miner, but that a new fuse was promptly installed to 

replace the defective one (Tr. 132). 

Gravity 

I conclude and find that both of the citations which have been affirmed 

were serious violations. While it is true that the caQle in question was 

constructed of very durable material .and showed no visible signs of 

damage, it was nonetheless. lying on a main travelway where men and equipment passed by on a daily basis coming and going from the mine. Further, 

the inspector saw evidence that the cable had been run over by the mantrip, 

and even though it was rubber-tired and not likely to penetrate the cable, 

such a practice is serious. As for the bridged fuse on the scoop charger, 

this presented a possible shock and fire hazard because the circuit it served 

was improperly protected. 

Negligence 

Both citations resulted from the respondent's failure to take 

reasonable care. The cable was in full view of personnel coming and 

going from the section, and the fuse condition should have been detected 

during the required examinations, particularly since the missing lid 

bolts which led to the discovery of the condition by the inspector were 

plainly visible. 

Good faith compliance 

The cited conditions were abated after the issuance of the orders, 

and the respondent demonstrated good faith in achieving compliance. 

1189 
History of prior violations 

The solicitor indicated that the respondent had three prior assessed 

violations of section 75.807, and no prior violations of section 75.518. 

Size of Business and Effect of Civil Penalties on the Respondent's Ability 

to Remain in Business. (Applicable to all Dockets). 

The parties have stipulated that the respondent is a small mine 

operator, and that its annual coal production has been approximately 87,000 

tons. With regard to the question of respondent's current financial 

condition, including the effect of any civil penalties on its ability 

to remain in business, respondent presented the testimony of its owner, 

and his testimony follows below. 

Mine Operator Winford Davis testified that he began mining in 1964, 

that the Marie No. 1 Mine was initially started in 1971, and since that 

time this has been his only active mining operation. However, the mine 

ceased to operate on December 29, 1981, and it has not been an actively 

producing mine since that time. He testified that during the years prior 

to 1974, the mine was profitable, and he conceded that his "before taxes" 

profits in 1975 was "a little over $1 million", but that since that time 

the mine has lost money. The profits from his operation in 1974 was used 

to purchase new equipment and to go expand the mine. Income for the mine, 

in terms of profit, for the years 1975 and 1976, was approximately $300,000, 

before taxes, but the mine lost $11,000 in 1977. 

Mr. Davis testified that during ·the period April through September 1977, 

the mine was flooded, and no coal was produced. A UMWA strike in November 1977, 

also affected coal production, and the strike lasted for about 90 days, or 

until February of 1978. Although flood insurance covered the larger 

portion of flood damage, he still lost approximately $1.8 million in 

equipment, and had to borrow money to replace it. The mine was also 

flooded on three occasions during 1978 and 1979, and that curtailed coal 

production even further. In addition, while his mine is not a union mine, 

organizing efforts to unionize the mine during November 1980, resulted in 

vandalism and other trouble which also cut into his production. He 

absorbed the flood losses for 1979 because he was afraid to file further 

flood claims. for fear that his insurance would be cancelled, and the 

mine was down for three months while the water was pumped out. As a 

result of all of these events, his losses for each of the years 1978 and 1979 

was a half-a-million dollars per year. Similar losses were encountered in 

1980 because of labor problems. 

Mr. Davis identified his accounting firm and stated that he has 

retained them since 1974 to keep his books. Work is being performed on 

the report ending April 30, 1981, but he indicated that he has been 

unable to pay the firm for their accounting work since prior to April 1981, 

and the firm has filed for an extension for him to pay his taxes for the 

year 1981. Since he has been unable to pay his accountant, he felt that 

1190 
he could not call upon him to testify in these proceedings. Mr. Davis 

indicated that he presently owes money to a great number of creditors, 

and some of these debts are as old as 1978. Since he has been in business 

for some 22 years, his creditors are being patient with him, but some 

have been creditors since 1974. He produced a copy of his accountant's 

report, dated April 30, 1981, and it is a part of the record. 

Referring to his latest accountant's report, Mr. Davis testified 

that the net loss for the Davis Coal Company for the first four months 

of 1981 was $191,443.47, and while he has not been provided with additional 

accountant's reports for the subsequent periods, he estimated his company's 

losses as $500,000 for the calendar year 1981, and he lost approximately 

the same amount for each of the years during 1978 through 1980. 

Current indebtedness for the company is bewteen $2.3 and $2.5 million, 

and the largest creditor is the Pikeville National Bank and Trust Company, 

which holds a note for an original amount of $750,000, for a loan made in 

1979. The balance due is now $700,000, and it was reduced by $50,000 

through the sale by the bank of a continuous mining machine which it had 

repossessed. The proceeds from the sale of this machine were applied 

by the bank to reduce his current note liability. In addition, he testified 

that within the last year additional equipment had been removed from the 

mine and sold to settle company debts. The Ingersoll-Rand Company 

repossessed two mining machines, three shuttle cars, a scoop, and a feeder, 

all of which they intend to sell at public auction to settle a debt of 

$360,000 which his company owes to that company. All of this equipment 

is located at Ingersoll-Rand's storage area in Charleston, and he no 

longer has it. In addition, the Long-Airdox Company met with him two weeks 

ago in an attempt to work out an agreement for payment bf several roof 

bolters. 

Mr. Davis stated that the mine ceased operation in December 1981 

because he ran out of money, and he had no funds to pay his miners. Since 

that time the company has generated no income, and the only bank account 

it has is a checking account with the Pikeville Trust Company, and it 

has a deficit balance. During the year 1981, and part of 1982, he has 

put over $100,000 of his own personal money into the company in an attempt 

to keep the company going. Neither he nor his family have received 

any income from the company during 1982, but he still works for the company 

in an attempt to settle his debts or negotiate additional capital to begin 

mining again. 

Referring to his personal income tax statements which he had with 

him, Mr. Davis testified that for the year 1980 he and his wife had a 

joint gross income of $79,632, and for the year 1981 their joint gross 

income was $51,373. He still pays the phone bill from his own funds for 

the phone at the mine office, and other than two night watchmen which 

he personally pays to protect the equipment still in the mine, the company 

has no other employees. He pays the watchmen a combined salary of $250 

a week from his own personal funds, and while' he wishes to get back into 

1191 
the mining business, he indicated that he cannot do this until he receives 

additional capital and pays off his debts. As an example, he ~ndicated 

that he would need an immediate $15,000 just to have the power turned on 

at the mine by the local utility company. He still owes the company 

$5,000 for past utility bills, and they require an additional $10,000 

as a deposit before the power is turned on again. In addition, he would 

also have to pay back taxes amounting to $18,000, and royalties, which 

are in arrears, before he can think about resuming mining. 

Mr. Davis stated that while he has contemplated filing for bankruptcy, he has tried to avoid it up to this time, and that he requires 

approximately $100,000 to start up mining again. He also alluded to the 

fact that he could not make anymore monthly payments of $4000 to $5000 which 

he had been making to MSHA to satisfy past assessed violations, and 

that as a result, the solicitor 1 s Arlington, Virginia, office instituted 

collection proceedings against him within the past year and attached 

coal shipments he had made to the United Coal Company to collect $8500. 

Conceding that the total amount of civil penalties initially assessed 

by MSHA in the instant dockets amounts to approximately $32,773, Mr. Davis 

stated that he recognizes his obligation to pay the penalties. However, 

he indicated that he has no assets or cash to pay these penalties, and 

if he were forced to pay, it would certainly have an adverse affect on 

his ability to stay in business. As for any suggestion that he sell some 

of his equipment to pay these assessments, he indicated that the liens 

held by the bank, as well as his state tax liabilities and debts, would 

absorb any revenue resulting from the sale of his equipment. Mr. Davis 

stated that when the mine was producing, they worked fiye days a week 

on two production shifts and one maintenance shift, and that he normally 

employed 50 miners. However, they are no longer working at the mine 

(Tr. 164-195). 

On cross-examination, Mr. David confirmed that there are still 

several closure orders outstanding on the mine. He estimated the current 

value of the equipment still at the mine as $500,000, and indicated 

that he has no interests in any other coal companies. Although Davis 

Coal Company owns the stock of a tipple facility (Burning Springs Collieres) 

where he used to load his coal, it is no longer operating and it is in 

fact the tipple plant immeidately connected to the Marie No. 1 Mine. 

It is the same tipple plant where some of the citations in these proceedings 

were served. Mr. Davis confirmed that he has been attempting to negotiate 

with a bank for loans to resume active mining. He has no other employments, 

but may consider going into the building contracting business, but he does 

not contemplate going back into the coal mining business unless he can 

raise the necessary capital. 

Discussion 

I agree with the holding of the former Interior Board of Mine 

Operations in the case of Robert G. Lawson Coal Company, 1 IBMA 115, 

117-118 (1972), a case decided under the 1969 Coal Act, where it was 

held that: 

1192 
We view the provisions of section 109(a)(l) 

as manifesting an intent by Congress to require 

a balancing process in arriving at an appropriate 

penalty to be assessed in any given case. Application 

of the criteria of section 109(a)(l) requires 

weighing the importance of imposing pecuniary 

penalties, as a measure of deterring insufficient concern 

for the health and safety of miners, against other 

deterrents specified in the act, such as closure orders, 

The amount of a monetary penalty imposed should be 

sufficiently high to deter any laxity of vigilance 

on the part of an operator to keep his mine in compliance with the Act. In our view, however, the imposition 

of a penalty which would cripple an operator's ability 

to continue his production of coal without a counterbalancing benefit to the safety of miners would not 

be appropriate. 

* * * * * * * * * * * 

We do not view the civil penalty assessment procedure 

as a tool to force closure of mines; we look upon it as 

an auxiliary tool to bring about compliance, 

* * * * * * * * * * * 

We believe Congress intended a balanced consideration 

of all statutory factors, including the size ~f mine and 

the ability to remain in business, to permit assessments 

which would be equitable and just in all situations but 

which would not have the effect of drastically curtailing 

coal production or employment of miners to the ultimate 

detriment of the public interest. 

* * * * * * * * * * * 

Where numerous violations are found and cited during a 

tour of inspection, the aggregate amount of the proposed 

assessments, even though each separate violation may be 

assessed at a nominal value, may be an amount beyond 

the operator's ability to pay, and thus, for no other 

reason than this, may be unreasonable. In such cases 

it is incumbent upon an Examiner and this Board to look at 

the total amount and impact of the monetary penalty in 

arriving at a fair assessment. 

The former Board followed its Lawson Coal reasoning with respect 

to the question of the effect of civil penalties on small operators in 

two subsequent decisions, Newsome Brothers, Ihc., 1 IBMA 190 (1972), 

and Hall Coal Company, 1 IBMA 175 (1972). I have applied this rationale 

on several occasions in deciding cases under the 1977 Mine Act, and these 

1193 
decisions have since become finalized as Commission decisions. See: 

MSHA v. Fire Creek Coal Company, Docket BARB 79-3-P, etc., April 5, 1979; 

MSHA v. G & M Coal Company, Dockets::SE :79=128,and:Dockets SE 81~12,.etc., 

November 19, 1980 and April 7, 1981. 

It is no secret to anyone that the Davis Coal Company has been the 

subject of several prior civil penalty proceedings before this Commission 

and its Administrative Law Judges. In MSHA v. Davis Coal Company, 

Docket Nos. 78-627-P, etc., March 7, 1980, the Commission, on its own 

motion, directed review of ten cases in which the judge had approved 

settlements pursuant to Rule 2700.30(c). Upon review of the record 

in those cases, the Commission, over the vigorous dissent of Commissioner 

Lawson, found no basis to conclude that the judges erred in approving 

the settlements, and their decisions were all affirmed. 

Com:missicner Lawson 1 s displeasure with the affirmance of the settlements in question was based on his belief that the approval of a 90% 

reduction from the original civil penalties was unsupported by any credible 

evidence that Davis Coal Company was in such "dire" financial condition 

as to justify such drastic penalty reductions. Commissioner Lawson 

observed that the company was not required to come forward with any current 

financial information to determine what, if any, effect the payment of 

the initially proposed civil penalties would have had on Davis 1 ability 

to continue in business. Scrutinizing Davis 1 business operations for 

a time span covering 1976 to 1979, Commissioner Lawson took particular 

note of the fact that Davis was not required to file audited financial 

statements or tax returns to establish any business losses supporting 

a finding that the company could not afford to pay the full assessment 

amounts. He was also disturbed with the asserted lack -0f consideration 

given to Davis' history of prior vio!ations and the lack of any discussion 

dealing with the deterrent effect of those violations. 

I am not unmindful of Commissioner Lawson's concerns with respect 

to the issues raised in his dissent in the previous Davis cases. However, 

as the presiding Judge in the cases before me for decision, I am constrained 

to apply the facts of record in any decisions that I render in connection 

with these cases, including the civil penalty assessments that are warrant~\d 

on the basis of those facts. Just as Commissioner Lawson saw fit to 

dissent in the previous cases, and just as the other Judges adjudicated 

their cases on the basis of the evidence and facts presented to them 

during the course of the hearings, so too will I decide these cases. 

It should be noted at the outset that the instant cases do not concern 

settlement proposals agreed to by the parties. In most of these cases, 

respondent Davis Coal Company does not contest the fact of violations, 

and has admitted that the violations occurred. In three of the dockets, 

testimony was presented by both sides, and all of the citations in those 

cases have been affirmed. Further, in each of the cases, either the parties 

have stipulated to all of the statutory criteria found in section llO(i), 

except for the effect of the penalties on th~ respondent's ability to 

remain in business, or I have made findings on these issues. The crucial 

question presented in all of these dockets is the appropriate civil 

penalties which I should assess in these dockets, taking into ·account all 

of the statutory criteria found in the Act, and in particular the question 

of respondent's ability to pay and the effect of any civil penalties on 

its ability to remain in business. 

1194 
It is clear that in litigated civil penalty proceedings, the 

determination of appropriate civil penalty assessments for proven 

violations is made on a de novo basis by the presiding judge and he is 

not bound by any assessment method of computation utilized by MSHA's 

Assessment Office, Boggs Construction Company, 6 IBMA 145 (1976); 

Associated Drilling Company, 6 IBMA 217 (1976); Gay Coal Company, 7 IBMA 

245 (1977); MSHA v. Consolidated Coal Company, VINC 77-132-P, IBMA 78-3, 

decided by the Commission on January 22, 1980. 

In the instant proceedings, the initial civil penalty assessments 

which appear as part of the petitioner's initial pleadings and civil 

penalty proposals in the form of "assessment worksheets" as exhibits 

to the proposals, reflect proposed penalty amounts derived from either 

the application of "points" assessed for each of the statutory criteria 

set out in section llO(i) of the Act, or from a "special assessment" 

made pursuant to Part 100, Title 30, Code of Federal Regulations, It is 

clear that I am not bound by those initial assessments, and the assessments 

which I have imposed have been made after full disclosure of all of the 

facts, and in particular evidence concerning the respondent's present 

financial condition and ability to pay. 

The record adduced in this case reflects that the mine has been 

closed since December 1981, and is no longer actively producing coal, 

Petitioner's counsel confirmed the fact that the mine is in a "B" status, 

which means that MSHA considers that it is active but not producing 

coal. Counsel also indicated that since the mine has been closed, MSHA 

inspectors are no longer inspecting the mine, no production is going on, 

and far as MSHA knows, no power has been supplied to the mine since its 

closure (Tr. 159-160). 

With regard to the respondent's financial condition, the unrebutted 

testimony of the mine operator reflects that the Davis Coal Company is 

on the brink of bankruptcy, that it is presently unable to resume active 

coal production because of the lack of additional capital, that some of 

its mine equipment has been repossessed and sold at auction to satisfy 

debts, that some equipment has been attached and removed from the mine 

by another creditor and is awaiting sale to satisfy debts, and that the 

remaining equipment at the mine is encumbered by a personal note in excess 

of $500,000 held by a bank which advanced the money to purchase it. In 

addition, with the exception of two security guards being paid personally 

by the mine owner to protect the equipment from theft and vandalism, 

no one is working at the mine and the normal workforce of 50 miners have 

all been laid off since the mine closed approximately seven months ago. ~/ 

After careful review of all of the evidence adduced in these proceedings, 

I conclude and find that the imposition of the full amount of the initial 

civil penalty assessments proposed by MSHA in these dockets, totalling 

approximately $32,773, would have a further adverse impact on the respondent's 

ability to reopen the mine and continue its c'oal mining business. Considering the fact that the respondent is a small operator and is in 

serious financial difficulties, as attested to by the unrebutted credible 

~/ On June 16, 1982, petitioner's counsel advised me that the 

respondent has in fact now filed for bankruptcy. 

1195 
evidence adduced herein, I find that the imposition of the proposed 

civil penalties would, in the aggregate, jeopardize respondent's ability 

to remain in business. While it may be argued that, in view of the 

respondent's past history of violations, which reflects a poor compliance 

record, as well as a marginal mining operation, it would be better off 

for the respondent to stay out of the coal mining business, that is a 

judgment that I prefer not to make. As the principal enforcer of the 

Act and its mandatory safety and health standards, the petitioner has 

at its disposal ample statutory authority through the enforcement process 

to assure future compliance should the respondent resume production, or in 

the alternative, to close the mine down for non-compliance. 

In addition to the financial condition of the respondent, and aside 

from the seriousness of some of the conditions or practices cited as 

violations in these dockets, I take particular note of the fact that none 

of the violations issued in these proceedings resulted in any injuries 

to miners; nor did they result in any mine fires or accidents (Tr. 146). 

In addition, in all instances, the respondent promptly corrected the 

conditions or practices cited, and in many cases respondent demonstrated 

extraordinary compliance by immediately correcting the conditions brought 

to its attention by the inspectors. Under the circumstances, I have also 

considered these factors, in addition to the effect of the initial 

assessments on the respondent's business, in assessing civil penalties 

for all of the violations which have been affirmed. 

Penalty Assessments 

In view of the foregoing findings and conclusions, respondent is 

assessed civil penalties for the violations which have been established 

as follows: 

WEVA 80-565 

Citation No. Date 30 CFR Section Assessment 

06 77798 11/30/79 75.517 $25 

0677799 11/30/79 75.517 25 

0677861 12/04/79 75.313 25 

0677862 12/04/79 75.1722 15 

<:677 863 12/04/79 75.1722 50 

0677865 12/06/79 75.316 50 

0673584 3/06/80 75.512 25 

0673585 3/06/80 75.300-4(a) 30 

0673591 3/11/80 75.703 20 

0673592 3/11/80 75.200 60 

0673593 3/17/80 75.512 60 

0673594 3/17/80 75.508 25 

0673596 3/17/80 77.502-2 25 

0673597 3/17/80 77.800-2 25 

$460 

1196 
WEVA 81-106 

Citation No. Date 30 CFR Section Assessment 

910981 4/24/80 75.324 $15 

910982 4/24/80 75.305 15 

910983 4/24/80 75.303 15 

910984 4/25/80 75.1704 10 

910985 4/28/80 75.515 10 

910986 4/28/80 75.701 20 

910987 4/28/80 75.400 so 

910988 4/28/80 75.1722(a) 20 

910989 4/28/80 75.503 20 

910990 4/30/80 75.503 20 

910991 4/30/80 75.1107 15 

910992 4/30/80 75.503 15 

910993 4/30/80 75.605 30 

910994 4/30/80 75.604 25 

910995 4/30/80 75.1107 20 

911000 5/08/80 77. 400 (a) 40 

$340 

WEVA 81-249 

Citation No. 30 CFR Section Assessment 

910319 7/23/80 75.316 $30 

911658 7/23/80 75.400 20 

911659 7/23/80 75.403 25 

911660 7/23/80 75.313 15 

912802 7/30/80 75.400 30 

912803 7/30/80 75.1722(b) 40 

$160 

WEVA 81-377 

Citation No. Date 30 CFR Section Assessment 

9915076 1/15/81 70.207(a) $20 

9915114 2/17/81 70.207(a) 15 

9915115 2/17/81 70.207(a) 15 

9915116 2/17/81 70.207(a) 15 

$65 

WEVA 81-429 

Citation No. Date 30 CFR Section Assessment 

912726 11/06/80 75.205 $30 

WEVA 81-449 

Citation No. Date 30 CFR Section Assessment 

918334 2/17/81 75.503 $25 

9915203 3/17/81 70.207(a) 35 

9915266 4/13/81 70.208(a) 20 

9915267 4/13/81 70.208(a) 20 

9915268 4/13/81 70.208(a) 20 

$120 

1197 
1198 
WEVA 81-459 

Citation No. Date 3b CFR Section Assessment 

917622 2/17/81 75.313 $10 

917623 2/17/81 75.503 20 

918335 2/17/81 75.400 30 

918336 2/17/81 75.400 30 

918337 2/17/81 75.503 15 

918338 2/17/81 75.503 15 

918339 2/17/81 75.313 15 

918340 2/17/81 75.503 15 

917627 2/24/81 75.515 15 

917628 2/24/81 75.1725(a) 20 

917629 2/24/81 75.904 60 

917630 2/24/81 75.400 100 

917631 2/24/81 75.503 30 

917632 2/24/81 75.1107-16(b) 20 

917633 2/24/81 75.523-2(c) 15 

917634 2/24/81 75.1725(a) 15 

917635 2/24/81 75.503 10 

917636 2/24/81 75.904 50 

917637 2/24/81 75.1725(a) 20 

917638 2/24/81 75.400 25 

$530 

WEVA 81-460 

Citation No. Date 30 CFR Section Assessment 

917639 2/24/81 75.514 $35 

917640 2/24/81 75.1722(a) 40 

917641 2/24/81 75.1722(a) 30 

917643 2/24/81 75.904 25 

917644 2/24/81 75.1725(a) 20 

917645 2/24/81 75.1105 30 

917646 2/27/81 75.326 25 

917649 2/27/81 75.516 20 

917650 2/27/81 75.516 20 

917651 2/27/81 75.515 10 

917652 2/27/81 75.807 25 

917654 3/02/81 75.807 20 

917655 3/02/81 75.516 25 

917656 3/02/81 75.514 30 

917658 3/04/81 75.1100-2(e) 20 

917659 3/04/81 75.515 25 

917660 3/04/81 75.1100-2(e) 20 

917741 3/04/81 75.515 30 

917742 3/04/81 75.515 30 

$480 

WEVA 81-461 

Citation No. DATE 30 CFR Section Assessment 

917743 3/04/81 75 .1725 (a) $20 

917744 3/05/81 75.1725(a) 20 

1199 
WEVA 81-461 (cont.) 

Citation No. Date 30 CFR Section Assessment 

917745 3/05/81 75.515 $20 

917746 3/05/81 75.1722(a) 25 

917747 3/05/81 75.515 25 

917748 3/06/81 75.516 15 . 

917749 3/06/81 75.516-2(c) 15 

917750 3/06/81 75.517 15 

917751 3/06/81 75.1722(a) 75 

917752 3/06/81 75.515 65 

917754 3/06/81 75.807 20 

917755 3/06/81 75.200 60 

917756 3/06/81 75.515 20 

917757 3/06/81 75.516-2(c) 25 

917758 3/06/81 75.807 25 

917759 3/06/81 75.ll00-2(e)(l) 25 

917760 3/06/81 75.1722(a) 20 

917761 3/06/81 75.1722(a) 60 

917762 3/06/81 75.515 25 

$575 

WEVA 81-462 

Citation No. Date 30 CFR Section Assessment 

917763 3/06/81 75.400 $30 

917764 3/06/81 75.400 30 

917765 3/06/81 75.5.15 15 

917766 3/06/81 75.1722(a) 45 

917767 3/06/81 75.200 40 

917768 3/17/81 77.1?05(1) 

WEVA 81-506 

Citation No. Date 30 CFR Section Assessment 

916587 11/18/80 77.506 $35 

918330 2/12/81 77 .1109 (a) 25 

$60 

WEVA 81-601 

Citation No. Date 30 CFR Section Assessment 

9U888 6/02/81 75.316 $15 

WEVA 82-25 

Citation No. Date 30 CFR Section Assessment 

918561 5/11/81 75.403 $25 

918566 6/24/81 75.400 65 

1200 
WEVA 82-25 (cont.) 

Citation No. 30 CFR Section Assessment 

918567 6/24/81 75.516 $20 

918568 7/07/81 75.1725(a) 20 

918570 7/09/81 77. 205 (a) 15 

9915346 8/13/81 70.208(a) 10 

9915347 8/13/81 70.208(a) 10 

9915348 8/13/81 70.208(a) 10 

$175 

WEVA 82-24 

Citation No. Date 30 CFR Section 

918010 12/08/80 75.1101-23(a) $20 

918011 12/08/80 75.1713 15 

918012 12/08/80 75.523 60 

918013 12/09/80 77. 207 

WEVA 81-504 

Citation No. 30 CFR Section Assessment 

918017 12/9/80 77. 701 $250 

WEVA 81-505 

Citation No. 30 CFR Section 

916590 11/18/80 75.302-1 $ 95 

916591 11/18/80 75.301 100 

918015 12/09/80 77. 701 85 

0640145 12/10/80 77. 506 90 

0640146 12/10/80 77. 506 90 

0640147 12/10/80 77 .506 95 

0640148 12/10/80 77 .506 95 

876569 12/10/80 77.506 

WEVA 81-600 

Citation No. 30 CFR Section 

0917653 3/02/81 75.807 $ 85 

0917657 3/04/81 75.518 95 

$180 

TOTAL $5740 =--

1201 
ORDER 

Citation No. 917642, February 24, 1981 (Docket WEVA 81-460), was 

vacated by MSHA prior to the filing of its civil penalty proposals, and 

it is therefore DISMISSED (Tr. 151-152). 

Citation No. 917753, March 6, 1981 (Docket WEVA 81-461), was also 

vacated by MSHA prior to the filing of the civil penalty proposals, 

and it is also DISMISSED (Tr. 153; Exh. A). 

Respondent IS ORDERED to pay the civil penalties assessed by me 

in these dockets, in the amounts shown above, totalling $5740, within 

thirty (30) days of the date of these decisions, and upon receipt of 

payment by the petitioner, these proceedings are DISMISSED. 

~~Kout~~ Administrative Law Judge 

Distribution: 

Paul E. Pinson, Esq., P.O. Box 440, Williamson, WV 25661 (Certified Mail) 

Covette Rooney, Esq., U.S. Departmen~ of Labor, Office ~f the Solicitor, 

3535 Market Street, Philadelphia, PA 19104 (Certified Mail) 

1202 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 rJUN 2 8198'2 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

SAN JUAN COUNTY HIGHWAY DEPARTMENT, 

Respondent. 

Appearances: 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 79-290-M 

MSHA CASE NO. 42-01482-05001 

MINE: Lema Draw S & G Pit 

Katherine Vigil, Esq., Office of Henry C. Mahlman, Associate Regional 

Solicitor, United States Department of Labor~ Denver~ Colorado 

for the Petitioner, 

Bruce K. Halliday, Esq., San Juan County Attorney, Monticello, Utah 

for the Respondent. 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Federal Mine Safety and Health 

Administration, charges respondent, San Juan County Highway Department, with 

violating Title 30, Code of Federal Regulations, Section 56.9-2 J:./, a safety 

regulation adopted under the Federal Mine Safety and Health Act, 30 u.s.c. 801 

2!.~· 

After notice to the parties a hearing on the merits was held in Monticello, 

Utah on August 20, 1981. 

1/ The cited regulation provides as follows: 

56.9-2 Mandatory. Equipment defects affecting safety shall be corrected 

before the equipment is used. 

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ISSUES 

The issues are whether respondent is subject to the Act; whether it 

violated the regulation, and, if so, what penalty is appropriate. 

SUMMARY OF THE EVIDENCE 

The 10 acre Lems Draw sand and gravel pit is owned by the United States 

Government and leased to San Juan County, a political subdivision of the State 

of Utah. The lease is managed by the Bureau of Land Management (Tr 6, 13, 

21-22, 28). 

On the date of the inspection MSHA representative Kenneth Joslin was told 

by respondent's truck driver that its Ford diesel truck #32 would jump out of 

low gear. This would allow the truck to runaway on a down grade (Tr. 13). 

On the same occasion a woman truck driver trainee told the inspector that 

the brakes on her truck were inadequate (Tr. 12). This portion of the citation 

was later withdrawn as a supervisor and the MSHA inspector road tested the 

truck. They concluded that the trainee excessively pumped the brakes causing 

the air to bleed off. The brakes were adequate (Tr. 16). 

The inside door latch on the driver's door of the truck was broken (Tr, 

17) 0 

DISCUSSION 

The uncontroverted evidence shows the truck gear was defective and the door 

latch was broken. 

Respondent contends that it is not subject to the Act, that it is not a 

mine operator, and the proposed penalty is excessive. 

Respondent's contentions concerning liability under the Act have all 

been ruled contrary to respondent's views in Island County Highway Department, 

2 FMSHRC 3227 (November, 1980). Respondent has cited Island County in its brief 

but has failed to demonstrate why the decision is not applicable in the factual 

settings presented here. The citation should be affirmed. 

CIVIL PENALTY 

Respondent further contends that the proposed civil penalty is excessive. 

Section llO(i) of the Act [30 U.S.C. 820(i)J provides as follows: 

The Commission shall have authority to assess all 

civil penalties provided in this Act. In assessing civil 

monetary penalties, the Conunission shall consider the 

operator's history of previous violations, the appropriateness of such penalty to the size of the business of the 

operator charged, whether the operator was negligent, the 

effect on the operator's ability to continue in business, 

the gravity of the violation, and the demonstrated good 

faith of the person charged in attempting to achieve rapid 

compliance after notification of a violation. 

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In reviewing the facts I note that respondent abated the defective 

conditions and there is no prior adverse history. In addition, the record does 

not reflect whether the proposed penalty of $66 considered the later withdrawal 

of that portion of the citation relating to defective brakes. In view of the 

low gravity of the violations and in considering the statutory criteria~ I 

conclude that a penalty of $40 is appropriate. 

Based on the foregoing findings of fact and conclusions of law I enter the 

following: 

ORDER 

1. Citation 335924 is affirmed. 

2. A penalty of $40 is assessed. 

Distribution: 

Katherine Vigil, Esq., Office of the Solicitor 

United States Department of Labor 

1961 Stout Street, 1585 Federal Building 

Denver, Colorado 80294 

Bruce K. Halliday, Esq. 

San Juan County Attorney 

P. O. Box 850 

Monticello, Utah 84535 

*U.S. GOVERNMENT PRINTING OFFICE: 1982-0-J61-6J8/4J72 

1205 

Law Judge