JUNE INDEX 

Commission Decisions 

6-02-83 Glen Munsey v . Smitty Baker Coal Co . Inc. NORT 71-96 

6-08-83 MSHA ex rel. Kenneth E. Bush v. Union Carbide WEST 81-115-DM 

6-13-83 MSHA ex rel. Clarence Ball v. B&B Mining Co. VA 80-128-D 

6-13-83 Monterey Coal Co. LAKE 80-413-R 

Administrative Law Judge Decisions 

6- 01-83 Valley Camp of Utah, Inc. 

6-03-83 Carpentertown Coal & Coke Co . 

6- 03-83 Co-op Mining Co. 

6-08-83 Jeffrey E. Hastings v. Cotter corp. 

6-09-83 El Paso Rock Quarries, Inc . 

6-09- 83 Zeus Corp./Amistad Fuel Corp . 

6-09-83 Tammsco, Inc. 

6-10-83 C & 0 Materials Corp . 

6-15-83 Westmoreland Coal Co. 

6-16-83 Pittsburg & Midway Coal Mining Operation 

6~20-83 Richard C. Johnston v. Olga Coal Co. 

6-22-83 Kentland-Elkhorn Coal Corp. 

6-24-83 Republic Steel Corp. 

6-28-83 UNC Mining & Milling 

6-28-83 Local 6025, UMWA v.· Bishop Coal Co . 

6-30-83 Southwestern Illinois Coal Corp . 6-30-83 Old Ben Coal Co. 

6-30-83 Mohave Concrete & Material Co. 

6-30-83 Bradley Abner v. Anamax Mining Co. 

WEST 82-118 

PENN 82-312 

WEST. 81-268 

WEST1 82-198-PM 

CENT 79-160-M 

CENT 81-248 

LAKE 81-190-M 

CENT 81-101-M 

WEVA 83-140-R 

WEST 82-131-R 

WEVA 82-236-D 

PIKE 78-399 

PENN 81-139 

CENT 80-386-M 

WEVA 80-429-D 

LAKE 82-38 

LAKE 82-85 

WEST 80-90-M 

WEST 83-54-DM 

Pg . 991 

Pg. 993 

Pg. 1007 

Pg. 1010 

Pg. 1032 

Pg. 1034 

Pg. 1041 

Pg. 1047 

Pg . 1056 

Pg. 1061 

Pg. 1063 

Pg.· 1141 

Pg. 1144 

Pg. 1146 

Pg. 1151 

Pg. ll57 

Pg. 1158 

Pg. 1164 

Pg. 1I'83 

Pg . 1184 

Pg . 1188 

Pg. ll95 

Pg . 1203 
Connnission Decisions 
) 

JUNE 

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

Secretary of Labor, MSHA v~ United States Steel Mining Company, Docket 

No. PENN 82-328 (Judge Broderick, May 17, 1983) 

No reviews were filed in which a Denial was issued. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

GLEN MUNSEY 

v. 

SMITTY BAKER COAL COMPANY, INC., 

P&P COAL COMPANY, AND 

RALPH BAKER 

June 2, 1983 

Docket No. NORT 71-96 

IBMA 72-21 

ORDER 

On }larch 11, 1983, the U.S. Court of Appeals for the D.C. Circuit issued 

its decision in Munsey v. FMSHRC et al., 701 F.2d 976 (D.C. Cir. 1983), reh'g 

and reh'g ~bane denied May 6, 1983. The Court "with one exception" affirmed 

the decisions of the Commission and the administrative law judge. The exception referred to concerns the judge's conclusion that costs and attorney fees 

could not be awarded for the period during which Munsey's counsel was employed 

as an attorney on the staff of the United Mine Workers of America. As to this 

issue the Court reversed and remanded for a determin?tion "of the amount to be 

awarded in accordance with the standard set forth in Nat'! Treasury Employees 

Union v. U.S. Dep't of the Treasury," 656 F.2d 848 (D.C. Cir. 1981). 701 F.2d 

at 977. The certified copy of the Court's opinion and judgment was issued on 

May 16, 1983. 

Accordingly, the ca;se is remanded to the chief administrative law judge 

for appropriate assignment and further proceedings consistent with the Court's 

decision. 

Commissioner 

991 

83-6-6 
Distribution 

J. Edward Ingram, Esq. 

Robertson, Williams, Ingram, 

Faulkner & Overbey 

Tenth Floor, Andrew Johnson Plaza 

Knoxville, Tennessee 37902 

for Smitty Baker Coal Co., Inc. 

Steven B. Jacobson, Esq. 

Decastro, West & Chodorow, Inc. 

10960 Wilshire Boulevard 

Los Angeles, California 90024 

for Glen Munsey 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., 6th Floor 

Washington, D.C. 20006 

992 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

June 8, 1983 

ex rel. Kenneth E. Bush 

v. Docket No. WEST 81-115-DM 

UNION CARBIDE CORPORATION 

DECISION 

This discrimination case arises under section 105(c) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq. (1976 & 

Supp. V 1981), and involves a miner's discharge for refusing to work 

under allegedly unsafe conditions. The administrative law judge concluded that the miner's work refusal was not protected, and that his 

discharge did not violate the Mine Act. 1/ For the reasons that follow, 

we affirm the judge in result. -

I. 

The miner, Kenneth Bush, was employed at Union Carbide Corporation's Rifle Plant from 1965 until his discharge on July 25, 1980, 

except for a year's layoff in 1972. From 1977 or 1978 until his discharge, he was a member of the union safety committee. The Rifle Plant 

is a facility for preparing vanadium. 2/ Vanadium, originally contained 

in ore mined and purchased by Union Carbide, arrives at the Rifle Plant 

in a concentrated liquid solution after intermediate preparation at 

another Union Carbide facility. At Rifle, further preparation is 

required to produce vanadium. compounds sold by Union Carbide for use in 

the chemical and steel industries. 

The operations at Rifle Plant require large quantities o{ sulfuric 

acid, which is shipped to the plant in railroad tank cars. Originally 

this acid was unloaded from the tank cars into storage tanks when it 

reached the plant. On July 21, 1980, Union Carbide changed the procedure, so that acid was unloaded from the tank cars into trucks. Under 

the new procedure, compressed air was piped into a tank car and the acid 

was forced through a pipeline running from the tank car to a manhole on 

the top of a truck. 

1/ The judge's decision is reported at 4 FMSHRC 365 (February 

l982)(ALJ). 

2/ Vanadium is a "gray or white, malleable, ductile, polyvalent 

metallic element ••• resistant to air, sea water, alkalies and reducing 

acids except hydroflouric acid." Bureau of Mines, U.S. Department of 

Interior, A Dictionary of Mining, Mineral and Related Terms 1195 

(1968). 

993 

83-6-8 
On July 9, 1980, Gerald Speaker, the master mechanic and one of 

Bush's supervisors, demonstrated the new acid unloading procedure to 

Bush and other miners, and asked if they had any suggestions for 

changes. Bush and others complained about the safety of the new procedure because of possible acid leaks caused by acid build-up in the 

pipeline, and requested valves to bleed the line and prevent such 

build-up. (None of Bush's co-workers appears to have made safety complaints to management after July 9.) On July 22, when Speaker and Bill 

Snyder, the maintenance foreman who also supervised Bush, assigned him 

to "break in," or learn, the acid unloading procedure, Bush refused, 

stating that it was qnsafe and it was not his job. 3/ Union Carbide 

permitted Bush merely to watch the procedure. Snyder testified that the 

acid leak and blow back problems were corrected that same day. 

On the morning of July 2.3, another miner, Jim Hardin, received 

minor burns while unloading acid. Bush was not there when the accident 

occurred but subsequently learned of it. Also that morning, when 

Speaker asked Bush the exact nature of his safety complaints about the 

new acid unloading procedure, Bush merely repeated his earlier comment: 

"It never has been safe and it isn't safe now and it never will be safe, 

and besides it is not my job." Tr. II 112. That afternoon, Snyder and 

Bush met at Snyder's request, and discussed Bush's safety complaints and 

Union Carbide's corrective measures item-by-item. 4/ In particular, Snyder 

told Bush that the July 22 changes in the procedure had eliminated acid · 

leaks and blow backs. Snyder described the conclusion of their meeting: 

"I asked Ken after all these things had already been taken care of, and we 

went through them all, I said now, would you please unload acid." Tr. 

II 76. Bush refused a third time, stating it was "unsafe now and down 

the road," and that it was not his job; he did not tell Snyder why he 

thought the procedure still was unsafe. Tr. I 94; Tr. II 76. 

3/ At the hearing Bush testified that his major safety concerns on 

July 22 were acid leaks, and "blow backs" occurring when acid feeding 

into a truck mixed with compressed air and the air pressure caused acid 

to spray out of the manhole in a mist about 6-8 feet in area. Snyder 

and Speaker testified, however, that although Bush told them the 

procedures were unsafe, he did not specify his complaints that day. 

!±./ Although the judge at one point erroneously refers to this meeting 

as having occurred on July 24 (4 FMSHRC at 371), the record is clear 

that it occurred on July 23. The judge's error is probably typographical for he recognized in his Findings of Fact (Finding 12, 4 

FMSHRC at 367) that the meeting occurred on July 23. The Secretary 

asserts that the judge's description of what took place at the meeting 

bears no relationship to what actually transpired. To the contrary, the 

judge's description of the meeting is fully supported by the record. 
At about 7:00 a.m. on July 24 -- in response to Plant Manager 

Harold Piper '.s request the previous day that he interrupt his inspections elsewhere and come to Rifle as soon as possible -- Charles 

Myers, Union Carbide's Safety Coordinator, began an inspection of the 

acid unloading procedure. 5/ Myers carried out a 2-3 hour inspection 

and subsequent.ly discussed-with Snyder, Speaker and Piper the procedure, 

the complaints, and the corrective measures taken by management. Myers 

concluded there was nothing unsafe about the procedure, but rather that 

it was "very adequate," and a "very complete procedure." Tr. II 3-8, 30-31. 

The events precipitating the discharge occurred on the afternoon of 

July 24 in the presence of numerous management personnel and miners. 

When Speaker instructed Bush to continue breaking in on the acid unloading procedure, Bush again refused. Speaker asked Bush if he was 

refusing to do his assigned work, to which Bush once more replied that 

he was refusing because the procedure would "always be unsafe" and it 

was not his job. Tr. I 98-99; Tr. II 10-11 34, 78. Piper repeated the 

question, and Bush replied, "[T]hey aren't my duties. They are unsafe 

besides." Tr. I 99, 147-149; Tr. II 11, 34, 78. Piper testified that 

when Bush "started to go through the reasons" why the procedure was 

unsafe, he cut Bush off, saying, "Ken, we have repeatedly tried to 

discuss this with you, with no rational discussion, we are not going to 

go through it now." Tr. I 150; Tr. II 34. 

Piper then suspended Bush for refusing to do his assigned work. 

Bush, angry over the suspension, responded in part, "You mousey little 

b------, I ought to break your f------ nose." Tr. I 99-100, 148-151; 

Tr II 11, 34-35, 78-79. Bush was very agitated and advanced to within 

6 to 8 inches of Piper, clenching and unclenching his fists, but no 

blows were exchanged. After a few more angry words, Bush walked away. 

The next day Piper sent Bush a certified letter, which stated that Bush 

was terminated effective immediately "for the totality of your conduct 

on Thursday, July 24, 1980, including insubordination, refusal to carry 

out work assignments, and for making threatening and derogatory remarks 

and gestures toward me." 

5/ While the operator did not expressly inform Bush of Myers' inspection, Bush knew that Myers was at the plant, because he testified 

that he saw Myers in the unloading area that morning. Bush testified 

that he was in the unloading area at the time to "see what changes had 

been made." He stated that he also saw "a man on the valve right under 

the truck," and "observed valves in the position where the -truck 

overflowed, if it overflowed like before, [the ~iner] was immediately 

under it •••• " However, Bush did not complain at that time, either 

to Myers to to other management personnel. Tr. I 142-145. 

995 
The Secretary of Labor filed a discrimination complaint on Bush's 

behalf alleging that Union Carbide "unlawfully discriminated against and 

discharged [Bush] for engaging in activity protected under section 

105(c) of the Act." In its answer, Union Carbide denied that it had 

violated the Mine Act, asserting that Bush was discharged "for good and 

sufficient cause, to wit, insubordination, refusal to carry out work 

assignment and making threatening and derogatory remarks and gestures 

toward the Plant Superintendent." The judge concluded that Bush's 

discharge did not violate the Mine Act. 

In essence, the judge held that at the time of Bush's July 24 work 

refusal and subsequent outburst, he did not have a reasonable belief 

that unloading acid was.hazardous. The evidence led the judge to conclude that Bush would not unload acid under any circumstances. 4 FMSHRC 

at 371. The judge based this conclusion on his findings that by the 

time of Bush's final work refusal Union Carbide had "rectified" the acid 

leaks and blow backs of which he had complained; that at the July 23 

meeting, Union Carbide had discussed each of Bush's complaints and the 

corrective action taken and Bush failed to identify any further safety 

problems at the meeting's close; and that his July 24 work refusal 

immediately folowed this meeting and was accompanied by his unvarying 

and unenlightening refrain that acid unloading would "never" be safe and 

was not his job anyway. 4 FMSHRC at 370-71. 

While the judge recognized the hazards of acid unloading, he held 

that "when all precautions have been taken, it does not mean that an 

employee may ••• refuse to do the work under the protection of the Act." 

4 FMSHRC at 371. Because he found that a work refusal under those 

circumstances "cannot be considered reasonable," he concluded that 

Bush's refusal on July 24 was unprotected. The judge found that Bush 

was discharged in part because of his July 24 work refusal and in remaining part because of his other unprotected conduct on that date. 4 

FMSHRC at 368, 370-71. The judge dismissed the discrimination complaint 

on the grounds that firing Bush for his unprotected July 24 work refusal 

and for other unprotected activity could not amount to a violation of 

the Mine Act. §_/ 

6/ Certain aspects of the judge's legal analysis require clarification, although they do not affect the correctness of his dismissal of 

the discrimination complaint. In addition to finding that Bush's July 

24 work refusal was unprotected, the judge also found that Bush's 

earlier safety complaints were protected, that he made a protected 

safety complaint at the time of his July 24 work refusal, that Union 

Carbide discharged Bush in part for the latter complaint, and that it 

would not have fired him in any event for his unprotected activity 

alone. 4 FMSHRC at 370. _ 

At first glance, these findings would suggest a conclusion of 

discrimination. However, Union Carbide expressly discharged Bush solely 

for the events of July 24 (the Secretary does not argue otherwise), so 

that Bush's safety complaints prior to that date, protected or not, are 

not directly relevant. Further, Bush's statement on July 24 that the 

job was unsafe was not a separate complaint, but instead was merely the 

(footnote 6 continued) 

996 
II. 

In order to establish a prima facie case of discrimination, a 

complaining miner must prove that he engaged in protected activity and 

that the adverse action was motivated in any part by the protected 

activity. Secretary ex rel. Pasula v. Consolidation Coal Company, 2 

FMSHRC 2786, 2799-2800 (October 1980), rev'd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); 

Secretary ex rel. Thomas Robinette v. United Castle Coal Co., 3 FMSHRC 

803, 817-18 (April 1981). It is undisputed that Union Carbide fired 

Bush for the "totality of (his] conduct" on July 24, including his work 

refusal, insubordination, and threatening and derogatory remarks and 

gestures. Bush's insubordination and opprobrious conduct are not protected by the Mine Act. 7/ Consequently, the narrow question before us 

in this case is whether Bush's work refusal was protected. If it was 

not, then firing him for it does not give rise to a violation of the 

Mine Act. 

For a work refusal to come within the protection of the Mine Act, the 

miner must have a good faith, reasonable belief that the work he refuses 

to do is hazardous. The complaining miner has the burden of proving both 

the good faith and the reasonableness of his belief that a hazard existed; 

the burden of showing good faith does not, of course, amount to a burden 

of demonstrating the absence of bad faith. Robinette, 3 FMSHRC at 

807-12. §_/ In determining if the miner's belief is a reasonable one 

footnote 6 continued 

expression of his final work refusal. The expression of this work refusal 

cannot be divorced from the refusal itself. If the work refusal lacked the 

protection of the Mine Act, so did the words communicating it. We disavow 

any suggestion to the contrary in the judge's reasoning. In sum, the judge's 

decision must be read in light of his ultimate conclusion. We are satisfied 

that, with the clarifications discussed in this note, he properly based his 

dismissal of the complaint on his conclusion that Bush's July 24 work refusal 

was not protected. Similarly', we interpret the judge's discussion of the 

operator's motivation in firing Bush as meaning merely that Bush was fired in 

part for his work refusal and in part for his other unprotected conduct on 

July 24. . 

7/ Bush's angry words and threats occurred after he refused to work and are 

separate from that refusal. Therefore, this is not a case requiring us to 

decide whether objectionable conduct occurring directly in the course of the 

alleged protected activity operates to strip that activity of its claim to 

protection. See Robinette, 3 FMSHRC at 817. See generally Crown Central 

Petroleum Corp. v. NLRB, 430 F.2d 724, 729-31 (5th Cir. 1970), and authorities 

cited. 

§_/ To the extent that note 14 in Robinette (3 FMSHRC at 811) may suggest 

that the burden of proof on any issue shifts to the operator, it has been 

misread. The burden of proof remains with the complainant at all times on 

all issues of his or her case, including good faith and reasonableness. As 

Robinette correctly holds, "the 'ultimate' burden of persuasion never shifts 

from the complainant." 3 FMSHRC at 818 n. 20. 

99'7 
under the circumstances, the judge looks to the miner's account of the 

conditions precipitating the work refusal, and to the operator's response. 

The judge then evaluates the relevant testimony as to "detail, inherent 

logic, and overall credibility." Robinette, 3 FMSHRC at 812. 

As indicated above, the judge's conclusion that Bush's July 24 work 

refusal was unreasonable is based on his findings that Union Carbide had 

corrected the hazardous conditions about which Bush had previously 

complained, and had so informed Bush on July 23. After being informed, 

Bush failed to articulate any further safety problems. When he continued to refuse to unload the acid on July 24, he merely invoked his 

ritualistic litany that acid unloading would never be safe, and besides 

was not his job. We are persuaded that substantial evidence supports 

the judge's findings and conclusions. 

The record establishes Union Carbide's continuing concern about 

miners' complaints and its willingness to address them. As requested by 

Bush and other miners on July 9 and by Bush on July 22, Union Carbide 

corrected the acid leaks and blow backs. In addition, the operator 

initiated the July 23 meeting with Bush, where Snyder informed Bush of 

these corrections and tried without success to discover Bush's remaining 

safety complaints. Union Carbide's good faith and desire to cooperate 

were further demonstrated by Piper's July 23 request that Myers inspect 

the unloading procedure as soon as possible. Where, as here, the 

necessary communication between the miner and operator has occurred and 

management has taken corrective measures at some point repetition of 

the same complaint and work refusal loses the protection of the Mine Act. 

In this context, the evidence does not support the reasonableness 

of Bush's continuing belief in a hazard. Indeed, the judge virtually 

discredited Bush's testimony. It is significant that after July 9, no 

one aside from Bush seems to have complained to management regarding the 

acid unloading procedures. At no time did Bush file a grievance under 

the union contract or raise his concerns with the union safety committee 

of which he was a member. Moreover, at the July 23 meeting, Bush was 

unresponsive to Union Carbide's repeated attempts to discover why he was 

still concerned ab~ut the unloading procedure. On July 24, after both 

Speaker and Piper asked Bush if he were refusing to do his assigned work, 

he merely repeated tha~ the procedure was unsafe, would never be safe, and 

was not his job. While it is true that Piper interrupted Bush at that point, 

we do not believe the interruption was legally significa~t. The record fails 

to show that Bush would have said anything more illuminating than he had 

said four times already. Rather, the record reveals that Bush's testimony 

overall as to what he told his supervisors with regard to his safety 

concerns was vague, unspecific, and subject to memory lapses. J_/ 

J_/ Even testimony that at first glance seems to support Bush's position, 

fails to do so on closer examination. Thus, although Bush knew on July 23 

that Hardin was burned, there is no testimony that Bush thought the burn was 

caused by a safety defect. The judge made no findings on the cause of the 

burn and Bush did not testify as to what he believed. Similarly, as discussed in footnote 5, although on the morning of July 24 Bush observed the 

unloading procedure he did not then complain of any hazards. His testimony 

as to what he observed that morning is ambiguous as to whether he believed 

a hazard actually existed at that time. Further, the judge found that Union 

Carbide had corrected the acid leaks. 

998 
In sum, the judge inferred from the evidence that Bush would not 

unload acid under any circumstances. In so doing, the judge credited 

the operator's testimony that it had remedied the acid leaks and had 

conveyed this information to Bush, and discredited Bush's testimony 

pertaining to reasonable belief in a hazard. We emphasize that a 

"judge's credibility findings and resolution of disputed testimony 

should not be overturned lightly." Robinette, 3 FMSHRC at 813. Here, 

in the presence of substantial evidence to support his findings, we see 

no reason to take the exceptional step of overturning this basis for the 

judge's decision. We are persuaded, as was the judge, that Bush's 

belief in the hazard was not "a reasonable one under the circumstances," 

in that Bush's account of the conditions responded to was not persuasive 

in "detail, inherent logic and overall credibility." Robinette, 3 

FMSHRC at 812. We reach this result also because acid unloading is a 

necessary and integral part of Union Carbide's operations and, like 

working on high steel or, indeed, in a mine, always poses some element 

of risk. Bush's work refusal was therefore unprotected and the operator's 

firing him in part for that refusal did not amount to a violation of the 

Mine Act. 10/ Like the judge, we will not penalize Union Carbide for 

refusing tO-tolerate indefinitely Bush's unchanging refrain and work 

refusals. 

III. 

One last point remains to be discussed. Union Carbide asserted at 

oral argument--as it had before the judge--that the Rifle Plant is not a 

"mine" within the meaning of the Mine Act. We disagree. Substantial 

evidence supports the judge's findings that vanadium is a mineral and 

that facilities at the plant are used in the work of "preparing" 

vanadium. 4 FMSHRC at 369. 

The Mine Act specifically includes within its coverage "lands ••• 

structures, facilities, equipment ••• used in ••• the work of preparing 

••• minerals. 30 U.S.C. § 802(h)(l). It is clear Congress intended 

this expansive definition of "mine" to be broadly construed. 11/ While 

we have recognized that the "inclusive nature of the Act's coverage ••• 

is not without bounds" (Carolina Stalite Co., 4 FMSHRC 423, 424 (March 

1982), appeal filed sub nom. Donovan v. Carolina Stalite, Nos. 82-1467, 

82-1830, D.C. Cir.), the situation here is readily distinguishable from 

cases where we declined to apply the Mine Act. See Stalite, 4 FMSHRC at 

424-425; and Elam, 4 FMSHRC at 5, n. 3. Rifle is an integral part of 

Union Carbide'S"""Corporate structure, and some of the vanadium-bearing 

10/ Because we have determined that Bush's work refusal was not based on 

a reasonable belief that a hazard existed, we need not reach the question 

of his good faith. 

l!.I Oliver Elam Co., 4 FMSHRC 5, 6 (January 1982), citing S. Rep. No. 

181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate Subcommittee 

on Labor and Human Resources, 95th Cong., 2d Sess., Legislative History 

of the Federal Mine Safety and Health Act of 1977, at 602 (1978). 

999 
ore prepared at Rifle is mined by Union Carbide. Moreover, the distillation of t~e vanadium concentrate at the plant is a necessary preliminary step to commercial use. Such mineral preparation falls within 

the scope of the Mine Act. lJ:..! 

Accordingly, on the bases discussed·above, we affirm the judge's 

dismissal of Bush's complaint of discrimination. 

~66;.~~~ 

12/ We also believe it is desirable as a matter of policy that a single 

federal agency inspect all of Union Carbide's facilities engaged in 

related operations, that is, its mines and its primary and secondary 

preparation facilities. 30 U.S.C. § 802(h)(l). As pointed out at oral 

argument by counsel for the Secretary, without rebuttal by Union 

Carbide, until this proceeding Union Carbide had not disputed the Mine 

Safety and Health Administration's jurisdiction, and had permitted 

inspection without protest for a number of years. 

1000 
/ 

Commissioner Lawson dissenting; / 

/ 

I am in agreement with the majority that this is a mine, but the recoi'd 

does not support its conclusion that the complainant, a miner with fifte~rt 

years employment at Union Carbide, and at the time of his termination a/ 

safety committee representative for his union, was discharged for unprotected 

activity. It is undisputed that miner Bush had never been disciplined before, 

for any reason. Tr. I 78. 

The proposition that substantial evidence furnishes strong support for 

the decision of a trial court is not in dispute. What is at issue are the 

numerous evidentiary gaps, misinterpretations, and inconsistencies in the 

decision of the judge below, which presents to the Commission a decision 

unsupported by the record in this case. Substantial evidence is either 

wholly absent from this record--indeed any evidence in a most critical 

area--or so misstated as to be of little or no value for purposes of review. 

For example, although the judge found complainant had engaged in protected 

activity (4 FMSHRC 370), and the op.erator has not challenged this finding on 

review, the majority here has determined that Bush's activity was not protected 

(slip op. at 4, 5, and n. 6), thus ignoring the presumably substantial evidence 

on which the judge relied in reaching that conclusion. 

As the majority ~oncedes, the judge erred in recounting and relying upon 

a nonexistent conversation of July 24th, in the clearly determinative underpinning for his decision: 

The complainant did engage in protected activity in 

that he complained that the new procedure for unloading 

acid was unsafe. The complaint was made to complainant's 

supervisor on several occasions, and including July 24, 

1980, the day complainant was suspended. A safety complant involving a condition adjudged by the miner to be 

unsafe constitutes conduct protected by the Act. 

After the solution of all the complaints had been 

explained to complainant in his supervisor's office on 

July 24, 1980, complainant was again asked to break in 

on the work of unloading the acid. Complainant ag~in 

refused, stating that it was unsafe, but when he was 

asked in what way it was unsafe, complainant offered no 

explanation. Complainant also stated, as he had before 

that 'besides, its not my job.' The only conclusion I 

can come to is that complainant would not unload acid 

under any circumstances. [Emphasis added]. 4 FMSHRC 370, 

371. 

1001 
Indeed, the July 24th refusal to discuss complainant's safety concerns 

is revealed by the record as that of Union Carbide's Superintendent, Harold 

Piper, not miner Bush. It is undisputed that Bush attempted to explain the 

reasons for his belief that the acid handling procedure was unsafe. However, 

as Piper stated Bush "started to go through the reasons", but "I cut off his 

discussion." Tr. II 34-36, Tr. I 150. ]) 

I am therefore unwilling to confirm these undisputed decisional contradictions of the judge, by speculating as to what he might have intended to 

say--but didn't--in particular on the central point critical to the resolution 

of this dispute. The timing and the content of the verbal exchanges between 

the parties should not be determined by inference, when Kenneth Bush's job, 

his fifteen years of employment and service for this operator, depends upon 

the accuracy of the facts upon which we must base our decision. 

It is undisputed that Bush had some years previously witnessed employee 

Victor Sullivan "severely burned by acid" (Tr. I 90); had himself received 

acid burns (Tr. I 103); had le~rned of Hardin's acid burns while working on 

the acid line on July 23rd and had observed; on the day of his discharge, 

that valves were still dangerously positioned and likely to cause overflow. 

Tr. I 144. Yet, in examining Bush's belief to find it unreasonable, neither 

the judge below nor the majority herein has made any determination nor 

addressed the issue of whether the complainant's refusal to work was made 

in good faith.. It is established law that the operator has the burden of 

proving the absence of good faith. Sec. ex rel. Robinette v. United Castle 

Coal Co., 3 FHSHRC 803, 810-12 & n. 14 (April 1981). J:._/ 

1/ Nor is there any record support for or explanation by the majority of its 

assertion that this miner's July 24 statement that the job was unsafe was 

not a separate complaint, nor that.Bush's safety complaints prior to July 24 

are "not. •• relevant." Slip op. at 4, n. 6. Certainly the judge found the 

complaint to be separate (4 FMSHRC 367), and the majority found Bush's angry 

outburst, which occurred in that same discussion, to be separate. Slip op. 

at 5, n. 7. 

2/ Contrary to the majority's assertion, n. 14 of Robinette has not been 

11misread": 

We are not suggesting that in work refusal litigation the 

Secretary or miner must demonstrate an absence of bad faith. 

Ordinarily, the miner's own testimony will expose the credibility 

of his good faith. Operators may use cross-examination or introduction of other evidence to show that, in reality, good faith 

was lacking. Thus, in a practical sense, the real evidentiary 

burden occasioned by the rule will be on operators to prove the 

absence of good faith. Emphasis supplied. 

Robinette at 811 n. 14. 

1002 
The essential holding below, adopted by the majority herein, is that 

Bush's work refusal was not based on a "reasonable belief", and is therefore 

unprotected. Slip op. at 7. That conclusion is founded on, and can only 

be supported by, as has been noted, the judge's mistaken reliance on a 

nonexistent conversation. 1./ The basis for the holding below being thus 

iacking, the decision cannot stand. Bell Lines, Inc. v. United States 

(1967, SD W Va) 263 F.Supp 40, 46; 5 U.S.C.A. § 557 (c). 

Certainly complainant on July 22nd had testified in detail as 

to his safety concerns (Tr. I 43-45). Union Carbide apparently gave 

these complaints credence, although the record is unrevealing as to 

whether or not the changes made in the sulfuric acid handling procedure 

between the July 22nd complaint of Bush and his discharge on July 24th 

represented improvements. A valve in the acid line had been replaced, 

but it is significant that miner Bush was not advised of this change in 

the acid handling procedure, nor permitted to express himself as to the 

safety implications thereof. 

On July 23rd, miner Hardin had been burned while unloading this sulfuric 

acid. Thereafter, on July 24th, Union Carbide's Safety Coordinator, Myers, 

had inspected this procedure, and the method of handling this acid was then 

modified. Complainant was not informed of nor aware of this modification, 

nor at the time of his work refusal on the 24th, of the reason for the injury 

to Hardin. Tr. II 52. Indeed, the record reflects that on the morning 

of the 24th, Bush observed valves in a position to cause overflowing, as 

before. Tr. I 143-145. 

In any event, whatever opportunity Bush might have had to express his 

concern as to these procedures was foreclosed, as well as any views he may 

have had concerning whether the later changes ordered by Myers had corrected 

the problems of safety involving the acid handling procedure. The majority 

would, however, confirm complainant's discharge because of Union Carbide's 

"good faith and desire to cooperate", albeit this operator had withheld 

critical information from Bush, a safety representative of his fellow 

miners. Slip op. at 6. 

Even more disturbing, and perhaps most pernicious of all, is the majority's 

clear approvai of this operator's refusal to listen, much less respond, to 

complainant's reasons for his refusal to work. I cannot agree to the promulgation of a rule that condones an operator's refusal to hear an employee's 

safety complaint, ~ fortiori one that approves the discharge of a miner who 

has the temerity to raise such complaint. The law does not require that 

a miner work under conditions perceived to be hazardous, nor to blindly 

accept the mine operator's assessment of the safety of the workplace. 

Patience is to be preferred over peril when the miners' health and safety 

weighs. in the balance. Phillips v. Interior Board of Mine Operations Appeals, 

500 F.2d 772, 780 (1974) cert. denied 420 U.S. 938. 

3/ See United States v. United States Gypsum Co., 333 U. S. 364 (1948) "a 

finding is 'clearly erroneous' when although there is evidence to support 

it, the reyiewing court on the entire evidence is left with the definite 

and firm conviction that a mistake has been committed." 395. 

1003 
Under the majority's rationale, a hear-no-evil rule has been established, 

which will henceforth provide an operator with a ready avenue for avoiding 

responsibility ·for discrimination. It need only refuse to listen to safety 

complaints. This certainly is not supported by the Act; indeed it is directly 

·contrary to the language of section 105(c)(l) and Commission precedent, which 

strongly encourages, if not requires, a miner to inform his employer of the 

dangers of the mine. Northern Coal Company, 4 FMSHRC 126, 133-135 (1982). 

Whether miner Bush would have unloaded acid on the 24th was not therefore 

meaningfully offered as an option to Bush, given Union Carbide's refusal to 

listen to the reason or reasons he then believed that the work he refused 

was unsafe, the unexplained accident to Hardin, and the also unexplained 

change in the acid unloading procedure, subsequent to that accident, together 

with Bush's observation on the day he was discharged that valves were still 

dangerously positioned and likely to cause overflow. The Act and our precedent 

do not require miners to perform unsafe work, nor that which a miner has a 

good faith, "reasonable belief" to perceive as unsafe. 

To the extent that the majority bases its finding that Bush's belief 

was not "reasonable" " •• ."because acid unloading is a necessary and integral 

part of Union Carbide's operation and, like working on high steel, or indeed, 

in a mine, always poses some element of risk", it decides a question not 

presented to the judge below, nor raised on review to the Commission. The 

Act limits Commission review "to questions raised by the petition" and provides 

that the "Commission shall not raise or consider additional issues •..• " 

Sections 113(d)(2)(A) & 113 (d)(2)(B). Here, the majority's finding was 

neither presented to the judge below nor raised by any party on review. Pre-

· viously, this Commission has refused to address an argument not raised before 

the judge. Cowin and Company, Inc., 1 FMSHRC 20, 22, n. 6. 

In any event, the suggestion that working with acid poses an element of 

risk is not at issue in this case, nor is working on high steel. What is at 

issue are the procedures utilized in handling the acid, and whether these 

were reasonably perceived by this miner as unsafe. 

The majority has viewed this miner's belief not only narrowly, but 

solely from the perspective of the operator. The belief to be tested, 

however, is that of the miner. The reasonableness of this miner's belief, 

on which he based his ~ark refusal, cannot be divined only from the operator's 

subjective, and not disinterested, assessment thereof. Phillips v. Interior 

Board of Mine Operations Appeals, supra. When viewed from Bush's perspective, 

the evidence leads to an opposite conclusion, and I submit clearly supports 

the reasonableness of his belief that this work was unsafe. 

To recapitulate, Bush, on the morning of July 24, went to the acid 

unloading site to see "(w]hat changes had been made." Tr. 1 142. A truck 

was being unloaded, and it is unrefuted that he observed valves in the 

position they had been in when acid had previously leaked. Tr. I 144. 

Nor was Bush told that Safety Coordinator Myers had reviewed the unloading 

procedures that morning at Plant Manager Piper's request, (Tr. II 52-3) 

nor was he advised that the faulty connection, which caused acid to splash 

in Hardin's face, had been replaced. !±./ Tr. II 6-7. 

!±_/Rather, Supervisor Snyder had told him "human error" was "partly responsible." 

Tr. II 72-3. Indeed, the record reflects a dispute between Union Carbide's own 

witnesses as to the cause of this accident. Tr. II 6-7, 51, 52. 

1001 
The record reveals that there had never been any discharges of other 

employees at this mine because of their safety complaints (oral arg. 53, 54), 

only Bush~ Union· Carbide presented no evidence that it was company policy 

to discharge for refusal to perform work because "it isn't my job" (oral 

arg. 53) or insubordination; indeed, Superintendent Piper testified that 

"we will not do anything in the heat of an incident other than to suspend". 

Tr. II 36. The judge, of course, found that Union Carbide wou~d not have 

fired this miner for the unprotected activity alone (4 FMSHRC 370), and 

this finding is buttressed by the operator's letter of July 25th, in which 

it noted that Bush was being discharged "for the totality of your conduct .•. , 

including the refusal to carry out work assignments." Exh. C-2. (Emphasis 

added.) 

In summary, we have an undisputedly woefully deficient and unsupported 

judge's decision, a miner who had made protected safety complaints and had 

observed still existing unsafe conditions at his workplace just prior to 

his discharge, a mine operator who refuses to listen to this experienced 

miner's safety complaints concerning a three-day old·, but already modified, 

procedure for handling sulfuric acid--which had already caused burns to one 

of complainant's fellow miners--and an employer who admittedly·suspended 

this miner for his refusal to do this work which he, in good faith, reasonably 

believed to be unsafe. 

For the reasons stated, I therefore dissent, would find a violation of 

section 105(c), and would reverse and remand for appropriate relief. 

A. E. Lawson, Commissioner 

1005 
Distribution 

Ann Rosenthal 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

John W. Whittlesey, Esq. 

Marguerite A. Smith 

Union Carbide Corporation 

Law Department 

Old Ridgebury Road 

Danbury, Connecticut 06817 

1006 
• 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

on behalf of Clarence Ball 

v. 

B&B MINING .COMPANY, INC., 

LAUREL MOUNTAIN MINING COMPANY, 

ROBERT ESSEKS, JODA BLANKENSHIP 

June 13, 1983 

Docket No. VA 80-128-D 

ORDER 

This case is before the Commission upon grant of a petition 

for discretionary review filed by the Secretary of Labor. 30 U.S.C. 

§ 823(d)(2)(A). The issues upon which review was granted concern 

the appropriate procedures for assessing penalties in discrimination 

cases brought pursuant to 30 U.S~C. § 815(c), and the appropriate 

rate of interest to be applied to backpay awards in such proceedings. 

Subsequent to our granting of the petition for discretionary 

review, the Secretary filed a motion to "withdraw his appeal" and 

for "dismissal of the proceeding." The Secretary asserts that a 

penalty has since been separately assessed and paid, and that the 

amount of backpay and interest payable to the miner has been resolved 

by an agreement reached in bankruptcy proceedings involving the 

operator. Therefore, the Secretary submits that the controversies 

before the Commission in this case are moot. No opposition to the 

Secretary's motion was filed. 

We find it unnecessary to reach the questions of whether the 

issues in the proceeding before the Commission are moot or, if so, 

whether dismissal would be required. See Climax Molybdenum Co. v. 

Secretary of Labor & FMSHRC, No. 80-2187, 10th Cir (March 21, 1983), 

slip.££.• at 7-10. Nor do we need to reach the Secretary's argument, 

in response to our order to show cause, concerning the Commission's 

jurisdiction over settlements in discrimination proceedings. The 

questions of law and policy upon which discretionary review was 

granted in this case are also pending before the Commission in other 

cases. See, e.g., Arkansas-Carbona Co., Docket No. CENT 81-13-D; 

Ottawa silica--c;-., LAKE 81-163-DM. In light of this fact and based 

100 1

/ 

83-6-9 
on our review of the entire record in the present case, we find that 

the case before us no longer presents a "substantial question of law, 

policy or discretion." 30 U.S.C. § 823(d)(2)(A)(ii)(IV). Accordingly, 

our direction for review in this case is hereby vacated and the 

administrative law judge's decision stands as the final order of the 

Commissio~. See 30 U.S.C. § 823(d)(l). 

We wish to point out, however, that the procedure followed in the 

present case exposes the parties as well as the effectiveness of their 

compromise agreement to unnecessary risks. Where a matter is in litigation before any tribunal, it is eminently sensible, if not legally 

mandated, to seek an order from that tribunal before a "binding" 

agreement between the parties that purportedly disposes of that 

litigation is effectuated. See also Matter of Gary Aircraft Corp., 

698 F.2d 775 (5th Cir. 1983), and cases cited therein. 

Nelson, Commissioner 

1006 
Distribution 

Barry f. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Robert T. Copeland 

Copeland & Thurston, P.C. 

212 West Valley Street 

P. 0. Box 1036 

Abingdon, Virginia 24210 

C. Adrian White 

1200 Euclid Avenue 

P.O. Box 309 

Bristol, Virginia 24203 

1009 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR . 

WASHINGTON, D.C. 20006 

June 13, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

Docket Nos. LAKE 80-413-R 

LAKE 81-59 

MONTEREY COAL COMPANY 

DECISION 

These proceedings arise under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1976 and Supp. V 1981). The administrative law judge found that~onterey Coal Company did not violate 30 C.F.R. 

§ 77.216(d). 1/ We granted the Secretary of Labor's petition for discretionary review and heard oral argument. For the reasons that follow, we 

reverse the judge's decision. 

On September 11, 1980, a Mine Safety and Health Administration (MSHA) };_/ 

inspector issued a citation to Monterey alleging a violation of 30 C.F.R. 

§ 77.216(d). The citation stated: 

1_/ 30 C.F.R. § 77.216 provides in part: 

* 

(a) Plans for the design, construction, and maintenance 

of structures which impound water, sediment, or slurry 

shall be required if such an existing or proposed impounding structure can: 

(1) Impound water, sediment, or slurry to an elevation 

of five feet or more above the upstream toe of the 

structure and can have a storage volume of 20 acrefeet or more; or 

(2) Impound water, sediment, or slurry to an elevation 

of 20 feet or more above the upstream toe of the 

structure; or 

(3) As determined by the 

hazard to coal miners. 

* * * 

District Manager, present a 

* * * (d) The design, construction, and maintenance of all water, 

sediment, or slurry impoundments and impounding structures 

which meet the requirements of paragraph (a) of this section 

shall be implemented in accordance with the plan approved by 

the District Manager. 

];_/ MSHA succeeded to the enforcement activities of the former Mining 

Safety and Enforcement Administration (MESA). In this decision references 

will be to MSHA. 

1010 83-6-10 
No. 3 slurry and refuse area, impoundment I.D. No. 1211 IL 

07i6-04, can impound water and/or slurry to an elevation of 

over 85' above the upstream [toe] of the impounding structure and the water/slurry storage volume is slightly more 

than 1000 acre feet. Either one of these conditions place 

the impounding structure in the large size classification. 

The mine operator has not submitted hydrologic and hydraulic 

engineering data to support the design of a large size 

structure. The approval of the engineering plan for design, 

construction, and maintenance of No. 3 slurry and refuse 

area was withdrawn in notifications dated June 13 and 

July 3, 1980. In a letter dated July 29, 1980 additional 

time was permitted to submit the information for a large 

structure. As of the date of this action no data has 

been received. 

The citation culminated a protracted and confusing dispute between 

MSHA and Monterey concerning the impoundment. At the heart of this dispute 

is the proper "size" and "design storm" classifications for the No. 3 

impoundment. A design storm is the worst combination of forces and.loads 

a structure is calculated to sustain without failure. The cited standard 

requires implementation of "impoundment plans" approved by MSHA's District 

Manager. The minimum requirements for impoundment plans are contained in 

30 C.F.R. § 77.216-2. Although the standards refer to an impoundment's 

"design storm," they do not specify criteria for choosing an appropriate 

design storm. Accordingly, both MSHA and the industry use as a guideline 

the Engineering and Design Manual: Coal Refuse Disposal Facilities, 

prepared by E. D'Appolonia Consulting Engineers, Inc. (hereafter "Design 

Manual" or "Manual").]_/ 

Table 6.6 of the Manual presents recommended minimum design storm 

criteria for long term refuse disposal impoundment structures. The Table 

combines a "size classification" and "hazard potential classification" of 

an impoundment to reach a "recommended design storm." 4/ Three design 

storms are set forth in Table 6.6: (1) probable maximu-;;;- precipitation (PMP) 

that could conceivably ever occur, given maximized intensity and duration 

possibilities (this is the most conservative design storm); (2) ~ PMP, and 

(3) one percent probability (OPP), the storm which would occur or be 

3/ The Design Manual was commissioned and published by MESA following the 

Buffalo Creek impoundment failure which occurred in 1972. 

4/ The hazard potential classification concerns both the level of damage 

and potential loss of life in the event of the impoundment's failure. The 

parties stipulated that the No. 3 impoundment is "low hazard." In addition 

to size and hazard potential, additional criteria for determining design 

storms include "freeboard," "spillways" and "decants." Freeboard is the 

vertical distance between the water level and the crest of the dam or 

impoundment. A spillway is a passage (for example: a paved channel) 

designed to accomodate surplus water over or around a dam or impoundment. 

A decant system is a system of pipes used to discharge clarified surface 

water from all impoundments after the fine refuse has settled, and to 

discharge storm runoff periodically collected in an impoundment during 

large rainstorms. 

1011 
exceeded on an average of once every one hundred years and therefore has 

an OPP of being equalled or exceeded in a given year. 2_/ Table 6.6 

recommends that an intermediate irnpoundrnent of low hazard have a minimum 

design storm of OPP. A large irnpoundrnent of low hazard should have a 

design storm of ~ PMP. 

With this background, we turn to the specific facts of the case. On 

July 30, 1976, after Monterey submitted its plan for the No. 3 .irnpoundrnent, 

MSHA requested "a written justification of the selection of a design storm 

less than the PMP. Adequate justification could be the use of Table 6.6 ••• " 

On October 6, 1976, Monterey forwarded the requested information including 

its own response to MSHA's comments as well as a response by Hanson Engineers, 

an independent consulting firm. 6/ On January 17, 1977, MSHA wrote to 

Monterey stating that Monterey's-justification of a design storm less than 

the PMP was "satisfactory". Monterey's plan was approved by MSHA on 

July 6, 1977. 

Subsequent to the plan's approval in 1977, the No. 3 irnpoundrnent 

manifested numerous signs of stress. A clay covering on the outside 

of the structure had been improperly applied, elevating the phreatic 

surface (water table) and weakening the irnpoundrnent structure. In 

addition, the irnpoundment had experienced two instances of serious 

slippage. Boils appeared on the irnpoundrnent indicating internal 

pressure was forcing water through the structure. 7/ Further, the 

static safety factor computed for purposes of determining slope stability 

measured less than the minimum permissible reading of 1.5. §_/ 

As a result of the first slippage, Monterey submitted a plan for remedial 

construction prepared by Hanson Engineers. The plan included the installation of 14 piezometers to monitor the seepage of water from the irnpoundrnent 

and to measure slope stability. Also as a result of the slippages, MSHA 

Inspector Eslinger began making more frequent inspections of the No~ 3 

impoundrnent. He made an inspection in April, 1980, at which time he collected the piezorneter readings, reviewed them and forwarded them to MSHA's 

"Technical Support" Center for analysis. J..j There, a major reevaluation of 

2_/ MSHA assigns either a ~ PMP or OPP design storm only after examination of the circumstances and receipt from the operator of detailed 

information justifying the use of a less conservative design storm. 

6/ Hanson Engineers has provided Monterey with engineering advice and 

data on the irnpoundrnent since 1975. 

7 I "A boil is a seep which ••• [is] water escaping the darn in a localized 

area under a high exit gradient, there is a lot of pressure forcing this 

water out." Mazzei deposition at 28. The record in this case includes 

the depositions of five MSHA experts. Hereafter, the depositions will be 

cited by the deponent's name and the page number of the deposition. 

8/ 30 C.F.R. § 77.216-2(a)(l3) requires inclusion in the irnpoundrnent 

plan of a ;'factor of safety range for the slope stability." The safety 

factor is the ratio of the resisting forces to the forces tending to 

cause movement. See 30 C.F.R. § 77.217(f). MSHA Engineer Eslinger 

testified that MSHA "like[s] to see at least [a] 1.5 static safety 

factor." Eslinger at 17. 

9/ Pittsburgh Technical Support Center, Division of Safety and Technology, Hine Waste and Geotechnical Engineering Branch. 

1012 
the design plan was initiated and MSHA personnel discovered that they had 

overlooked a "discrepancy." 10/ "The discrepancy in this instance was 

[that] an improper design storm was used. The Engineering and Design Manual, 

Table 6.6, requires a ~ 'PMP design storm be used for a structure of this 

size, rather than the OPP •••• "Joint Exh. 1 (MSHA letter to Monterey, 

June 13, 1980). MSHA requested further data within 20 days. Monterey 

responded by forwarding copies of the 1976-1977 correspondence (summarized 

supra) and stating, "[W]e feel that you will agree that the use of the 

OPP design storm has already been discussed., justified and approved, and 

is not an item which you had 'overlooked'." 

On July 3, 1980, again MSHA wrote to Monterey: 

The justification cannot be accepted, and therefore, 

approval of the plan is withdrawn effective immediately 

Table 6.6 ••• recommends that for Slurry and 

Refuse Disposal Area No. 3, a large impoundment of 

low hazard, that minimum design storm acceptable is 

the~ PMP ••• we must adhere to these recommendations. 

Joint Exh. 3. Monterey responded by letter to MSHA on July 21, 1980: 

Based on Table 6.6, ••• this impoundment should be 

classified as an intermediate size impoundment of low 

hazard potential. This is because the maximum volume 

of stored water during a design storm will always be 

less that 1000 acre feet, and the maximum depth of water 

during a design storm will always be less than 40 feet. 

It is true that the total impoundment volume is slightly 

more than 1000 acre feet and the total impoundment height 

is greater than 40 feet; however, the large portion of 

this volume and height is, and always will be, occupied 

by settled fine refuse, leaving a maximum of 405 acre 

feet of water storage and a maximum of 21 feet of water 

depth. The inclusion of only water, and not settled 

fine refuse, in the storage and depth quantities above 

is supported on page 6.63 of the manual in the section 

entitled Impoundment Size Classification, which makes 

a very clear distinction between stored water and settled 

fine refuse. 

Joint Exh. 4. 

10/ Apparently MSHA Technical Support advised the MSHA District 8 headquarters by memorandum dated June 6, 1980 of its finding of an error 

in the design storm. See Rath at 13-14. There is also an implication 

in the record that there-was communication between MSHA and Monterey 

prior to the letter of June 13, 1980 revoking the plan. Childers 

at 30-32. 

1013 
By letter dated July 29, 1980, MSHA stated that no mandatory 

standard required it to use Table 6.6. In addition, MSHA noted "it 

is obvious that section 77.216 ••• requires design plans not only 

for water, but also for sediment and slurry impoundments that fall 

within the criteria. Therefore, where a combination of both refuse 

and water is trapped behind a structure, it becomes clear that the 

total volume would be considered if prudent engineering and design 

is conducted." MSHA gave Monterey until August 12, 1980 to subniit 

the data initially requested on June 13, 1980. On August 7, 1980, 

at the request of Monterey, a meeting between MSHA officials and 

Monterey was held at MSHA's District Eight headquarters. The parties 

unsuccessfully tried to reach an agreement. 11/ On September 3, 1980, 

Monterey again wrote to MSHA stating that "Monterey and MSHA apparently 

cannot reach a satisfactory accord." Monterey reiterated the facts and 

concluded: · 

To Monterey, MSHA's July 29, 1980, letter is interpreted to 

mean that MSHA agrees with Monterey's contention that the 

design is consistent with the Engineering and Design Manual, 

but that MSHA is not bound by the Manual. This MSHA position 

on the Manual would certainly seem to contradict the July 13, 

1980, [sic] position that the alleged discrepancy was based 

on the requirements as set forth in the Manual. 

Thus, Monterey considered the MSHA approval of area No. 3 "to still be 

in effect." Joint Exh. 7, at 2-3. 

On September 11, 1980, the citation for failure to have an approved 

plan in effect was issued by MSHA. Monterey contested the citation 

and the Secretary subsequently instituted a civil penalty proceeding for 

the alleged violation. ll:._/ 

In his decision vacating the citation, the judge framed the issue 

before him as "whether MSHA was justified in withdrawing its approval, 

because if not, its subsequent action of issuing a citation was improper." 

3 FMSHRC at 1788. The judge resolved the issue in Monterey's favor, stating 

that "Table 6.6, which MSHA relies on and which it charged Monterey with 

violating,_ counts only the water above the settled material in determining 

the size of a pond for design storm purposes." 3 FMSHRC at 1789. Presumably 

because under the literal terms of Table 6.6 the impoundment was correctly 

classified as "intermediate", the judge found that withdrawal of approval 

was not justified. Therefore, h~ vacated the citation. 

g/ There were also a number of telephone conversations between ~fr. Tillman 

of Monterey and various MSHA officials in an attempt to reach an agreement. 

See Childers at 24-28 and 47-48. 

12/ On September 17, 1980, Monterey submitted additional information to 

MSHA "to allow Monterey to continue to operate" the No. 3 slurry area. 

Joint Exh. 8. MSHA reinstated approval of the plan on September 19, 1980 

after Monterey submitted the request~d data. Joint Exh. 9. 
We concur with the judge's statement of the issue: whether MSHA was 

justified in. withdrawing its approval of the plan, and, therefore, whether 

' issuance of the citation for failure to have an approved plan in effect 

was proper. We disagree with the judge's conclusion, however, and hold 

that under the circumstances MSHA was justified in withdrawing the plan 

approval and issuing the citation. 

As noted previously, a re-evaluation of Monterey's impoundment 

was conducted and MSHA discovered that the wrong design storm (the OPP) 

had been approved. 13/ MSHA admits that the OPP design storm should 

not have been approved and that if the same plan presently were submitted, 

it would not be approved. The depositions contain two explanations for 

the er.ror. During the time when Monterey initially submitted its plan, 

MSHA was deluged with plan submissions because the standard ~equiring 

plans for impoundments had only recently gone into effect. Mazzei at 

58-59. In addition, the record reflects that Monterey's plan submissions 

may have been somewhat confusing themselves in that they referred to 

more than one design storm. 14/ 

13/ Actually, the wrong design storm had been approved twice: initially 

in July 1977, and upon approval of a modified plan in August 1979.· 

14/ On April 30, 1976, Monterey submitted a number of documents to MSHA. 

Included was an "Engineering Report for Continued Use of Refuse, Slurry Area 

No. 3." Pages 4-5 of that report describe runoff and freeboard calculations. 

They use both PMP and OPP calculations. The "spillway" paragraph on page 5 

of the report only refers to OPP precipitation. Later, on July 30, 1976, 

MSHA requested "a written justification of a selection of a design storm 

less than the PMP." On October 6, 1976, Monterey responded to MSHA's 

request by forwarding both Monterey's and Hanson's responses. Inspector 

Eslinger quoted part of Monterey's response: "According to Table 6.6(c) of 

the MESA Engineering and Design Manual, ••• the decant system of a large 

impoundment in a low hazard area--large impoundment, low hazard, must 

handle ninety percent of the half PMP for the area." He continued, 

"so, ••• they're [Monterey] saying that it is a large impoundment of low 

hazard." Eslinger at 30-31. Counsel for the Secretary offered the 

following explanation of the confusion: 

••• [MSHA received] a cover letter from Monterey 

indicating that the one half PMP should be used 

and referred to data contained in the attached 

report from Hanson Engineers. The Hanson document that is attached talks in terms of the OPP 

rather than the one half PMP. 

Childers at 43. See Eslinger at 30-34; Childers at 41-44; Mazzei at 

60 and 77; and Wu at 14. Thus, although the record before us does not 

contain all the various documents referred to, we believe that it is 

nevertheless clear from the record that some of the confusion may 

have been caused by Monterey's submissions. 

1015 
Regardless of the precise cause of the mistaken approval, however, 

we find that it was a good faith mistake. Insofar as this record establishes, MSHA's consistent practice in classifying the size of impoundments 

is to measure the height and-volume of stored water and slurry. Based on 

this practice, the No. 3 impoundment should have been classified as "large" 

wi·th "low hazard" requiring a ~ PMP design storm. However, the impoundment 

was approved using the less conservative OPP design storm, apparently 

because only the volume of stored water, and not slurry, had been taken 

into account. In Penn Allegh Coal Company, 3 FMSHRC 2767 (Dec. 1981), we 

addressed the effect of a mistaken approval of a provision in a dustcontrol plan. We held that a good-faith mistake in a plan approval may 

be repudiated. 3 FMSHRC at 2770. Thus, we hold that MSHA was not bound 

by its mistaken approval of the wrong design storm. 

We further find that MSHA was justified in withdrawing approval of the 

plan based on its concern over the safety of the impoundment. We base 

this finding on the purpose of 30 C.F.R. § 77.216; the fact that No. 3 

impoundment showed numerous signs of stress; and the conclusion that 

MSHA's purpose in correcting the design storm error was to increase the 

safety of the impoundment. We first address the purpose of the standard. 

We acknowledge that the literal wording of the citation and the 

relevant correspondence between MSHA and Monterey do not explicitly 

state that withdrawal of the plan was based on safety considerations. 

Rather, Monterey was cited for not having an approved plan in effect and 

the correspondence between the parties focuses on the dispute about the 

size of the impoundment and the appropriate design storm. In resolving 

this dispute, the judge limited his inquiry to the size of the impoundment under a literal application of Table 6.6. We conclude, however, 

that this classification controversy has unfortunately clouded and distracted attention from the basic purpose of the standard and the real 

issue in this case, i.e., whether MSHA had proper cause to revoke its 

previous approval of the impoundment plan. 

In explaining the purpose of 30 C.F.R. § 77.216, the Secretary states: 

MSHA interprets 30 C.F.R. § 77.216 to require submission 

of plans for ~he design, construction, and maintenance 

of structures which impound water, sediment, or slurry. 

Such plans must provide for effective containment of 

potentially hazardous amounts of refuse. 

Sec. Br. at 20-21 (emphasis in original). District Manager Childers described the approval process after an impoundment plan is received. He 

testified that his "primary concern" and the "bottom line" in approving 

plans is safety. Childers at 38-39. The Secretary further states: 

MSHA analyzes plans for the development of impoundments in light of both the resistance of the retaining 

structure to failure and the likely results given 

structural failure. 

1016 
PDR at 3. To emphasize our central observation, we conclude that the 

purpose of the standard is to assure the safety of impoundments and 

minimize the risk and effect of failure. 

In their depositions, four of MSHA's experts testified at length 

concerning the history of various safety problems at the impoundment. 15/ 

The first apparent problem was in the construction of the impoundment.-.-

The dam is constructed of a coarse refuse material covered by clay. The 

clay covering was intended to be thin but was applied thickly. Stress 

was experienced in the impoundment because the clay would not let the 

water through the structure which in turn raised the phreatic surface 

(i.e., water table). Also, as noted earlier, the impoundment experienced 

two instances of serious slippage, first on the south slope in 1978 

and then on the west slope in 1979. In addition, Inspector Eslinger 

observed boils occurring in the area of the most recent slide. Boils 

were described as problems, an indication of weakness, and a sign of 

distress. 16/ In addition to these difficulties the static safety 

factor (fo-r-slope stability) measured less than the minimum permissible 

reading of 1.5. Based on the piezometer readings, MSHA found safety 

factors ranging from just under 1 to 1.3. Inspector Eslinger testified that the impoundment "has always been a borderline on slope 

stability." 17/ We conclude these safety related problems are 

sufficient tojustify MSHA' s action in withdrawing the plan approval. 

We further find that MSHA's purpose in correcting the design storm 

error was to increase the safety of the impoundment. Inspector Eslinger 

acknowledged that the reason for issuing the citation was that MSHA was 

interested in altering the operational parameters of the pond: 

[T]he violation was written and we were seeking to 

modify the plan to gain this lower operating level 

which would provide the increased safety for the 

storage aspect of the storm ••• 

Eslinger at 7-8. Inspector Eslinger further testified that the impoundment 

was safer with less water in it. Id. at 13. In addition, Mr. Mazzei 

testified that "if you lower the water lev!=l, you're going to lower the 

intensity of the boils." Mazzei at 29. Thus, MSHA's experts believed 

that changing the design storm and lowering the water level result in 

the increased safety of the impoundment. 

We also note that two of MSHA' s exper_ts testified that had MSHA 

not corrected the design storm, MSHA would have required Monterey to take 

other action to increase slope stability. Mr. Eslinger was asked what 

15/ Eslinger at 14, 16, 36 and 40-42; Rath at 5-6 and 8-9; Mazzei at 

7, 27-28; 32, 72, and 74-76; and Wu at 15 and 22. 

16/ Mazzei at 28; Rath at 8; Eslinger at 14; and Wu at 22. 

17/ Eslinger at 16-17. 

1017 
MSHA would have done to increase slope stability if MSHA had not found 

the design storm error. He replied, "we probably would have requested 

[Monterey] to do something which may have meant lowering the operational 

level to insure a minimum [slope stability] of 1.5."· Eslinger at 35-36. 

Also, Mr. Mazzei acknowledged that if the OPP design storm were to remain 

in effect work would have to be done on the impoundment from a stability 

standpoint. Mazzei at 74. This testimony supports a finding that MSHA's 

overall concern was the safety of the impoundment. Thus, we find that 

MSHA withdrew its plan approval and ultimately issued the citation requiring data to support a more conservative de5ign storm because of valid 

safety concerns. 

We further find that Monterey suffered no legal prejudice as a 

result of MSHA's actions. In its brief Monterey argues: 

The essence of Monterey's grievance and the core of the 

decision below is that MSHA acted arbitrarily and unreasonably by requiring Monterey to comply with Table 6.6 and then 

punishing it for doing just that. 

Br. at 7. During oral argument, counsel for Monterey stated: 

It [MSHA] had the right not to use Table 6.6 or to develop 

a new standard based on Table 6.6 but taking a differ~nt 

approach. But it didn't do that, at least it didn't tell 

the world about it if it did. 

Oral arg. tr. at 20. At first glance, Monterey's position might appear 

to have merit. During the submission of the initial plan in 1976 and 1977, 

Monterey was told to use Table 6.6. Later, in the letters of June 13, and 

July 3, 1980, MSHA itself relies on the Table as justification for ~ithdrawing the plan ·approval. MSHA then stated in its letter of July 29, 

1980, that it is not required to use the manual and relied on 30 C.F.R. 

§ 77.216 to support its action. 

However, insofar as the record in this case reflects, except for the 

mistake made in the present case, MSHA was consistently interpreting Table 

6.6 the same way; there was no change in MSHA's policy or position. All 

five MSHA witnesses ·stated that they interpreted Table 6.6 to refer to 

water plus slurry • ..!!!_/ Therefore, in their view, the No. 3 impoundment 

was always large in size and always required a ~ PMP design storm. 

18/ Eslinger at 29; Childers at 33; Rath at 17; Mazzei at 54 and Wu 

at 20. MSHA's consideration of the total volume of stored water and 

slurry in classifying the size of an impoundment is based on its 

documented engineering judgment that, due to the extremely fluid 

nature of the settled and suspended coal fines, this material, as 

well as the water, would mobilize and flow in the event of an 

impoundment failure. Mazzei at 22-23, 50-55; Wu at 16-17; Sec. 

Br. at 25-8. 

1018 
We cannot conclude that MSHA's use of the Table or its act of 

withdrawing the plan approval was arbitrary and capricious. MSHA is 

not bound by the literal terms of Table 6.6 •. It is a guideline, not 

a mandatory standard. ~· King Knob Coal Co., 3 FMSHRC 1417, 1420 

(June 1981); Alabama By-Products Corp., 4 FMSHRC 2128 (Dec. 1982). 

Also, of great importance here, Monterey had adequate notice before 

issuance of the citation of how MSHA intended to apply the Table to 

its operation and the remedial action that would be required. 19/ 

Monterey was also given a reasonable time to comply. MSHA's initial 

action was a letter, not a citation and it allowed 20 days to submit 

the data. In MSHA's letter of July 29th the time for submission of 

the data was extended until August 12, 1980 "because of the delays 

created by correspondence on this matter." Even then, the citation, 

issued September 11, 1980, was preceded by a meeting and telephone 

conversations. Thus, prior to issuance of the citation Monterey was 

given unequivocal notice of and a reasonable opportunity to comply 

with MSHA's interpretation and use of the Table. ~· Penn Allegh Coal 

Co., supra. ];QI In sum, we find the course of action taken by MSHA to 

have been a reasonable approach, and not arbitrary or capricious. 

J:!i/ Penn Allegh also describes the actions Monterey has taken: 

The requirement of good faith negotiations by both parties 

eliminates any fear that an operator must forever labor 

under a provision that has been adopted and approved. 

If an operator believes a revision is warranted, has 

engaged in a reasonable period of good faith negotiation, 

and believes the Secretary has acted in bad faith in 

refusing to approve the revision, he can obtain review 

of the Secretary's action by refusing to comply with 

the disputed provision, thus triggering litigation 

before the Commission. 

3 FMSHRC at 2773, n.8. 

]!2/ In fact, Monterey was not required to lower the actual water elevation then present in the impoundment. At the time the citation was 

issued the facility was operating at about 660 feet. Stipulation No. 18. 

Utilizing an OPP design storm, it could operate at μp to 662 feet. 

Utilizing the ~ PMP design storm, it could only operate at an elevation of 660.5 feet. 

1019 
Accordingly, the decision of the judge is reversed, the citation for 

failure to have an approved plan in effect i af.firmed, and the 

remanded for the imposition of an appro r tf i ~~~: 

s , Commissioner. 

~~~ :hairNeison, Commiss.ioner 

1020 
Collyer, Chairman and Backley, Commissioner, dissenting: I 

We dissent. The record in this case shows that MSHA did not withdraw approval of Monterey's plan for the design of its impoundment 

because of concerns about the stability of the structure. Approval of 

the plan was withdrawn solely because of a dispute between MSHA and 

Monterey over the correct meaning of the guidelines contained in Table 

6.6 of the Design Manual. 

MSHA's interpretation was wrong and the citation should be vacated. 

Any attempt to label this interpretation a "good faith mistake" fails 

because of MSHA's actions in the dispute, as outlined below. Under 

proper circumstances, MSHA may not necessarily be bound to the guidelines in Table 6.6. However, when it relies on specified guidelines for 

issuing a citation, as here, it is bound by the terms of those guidelines alleged to have been violated. 

In order to properly understa,nd the basis for this controversy, the 

genesis and purpose of Table 6.6 should be explained. Table 6.6 is only 

one section of a major effort on the part of the government to set 

standards for the design and maintenance of coal impoundments and 

handling of coal waste after the Buffalo Creek disaster in 1972. The 

Mining Enforcement and Safety Administration (MESA), MSHA's predecessor, 

contracted with E. D'Appolonia Consulting Engineers to develop a design 

manual to provide guidance to inspectors and industry alike. The result 

was published under the title: "U.S. Department of Interior, Mining 

Enforcement and Safety Administration, Engineering and Design ManualCoal Refuse Disposal Facilities." As the correspondence in this case 

illustrates, the Manual has been used since publication as the official 

parameter against which all impoundments are measured. 

Table 6.6 in the Design Manual is what MSHA uses to determine the 

"size", "hazard potential", and "design storm" for coal refuse impoundment structures. 21/ Although other textbooks and references are also 

consulted by MSHA in reviewing impoundment plans, none of these other 

references is used to determine the size, hazard potential or design 

storm for impoundments. 2:1__/ Thus, the "size" classification, which is 

at the heart of the dispute in this case, is entirely the creation of 

the authors of Table 6.6 and that table is the only source that is used 

by MSHA to make such "size" classifications for coal refuse impoundments. 

The nature of Table 6.6 also needs a fuller explanation than is 

provided in the majority opinion. Table 6.6 is arranged like a matrix. 

The proper design storm for an impoundment is determined by matching the 

"size" variable with the "hazard potential" variable for each facility. 

There are three size classifications: small, intermediate, and large. 

These classifications are based on the maximum volume and depth of 

stored water. There are also three hazard potential classifications: 

low, moderate, and high. The hazard potential classifications are based 

on the severity of damage that would occur if an impoundment failed. 

21/ Mazzei at 16-17. 

22/ Mazzei at 15-17. 

1021 
It is undisputed that Monterey's No. 3 impoundment has a "low" 

hazard potential. 23/ For a facility with a "low" hazard potential like 

the No. 3, the One Percent Probability (OPP) is the appropriate design 

storm if the impoundment is "intermediate" in size. If it is "large" in 

size, the design storm should be one-half Probable Maximum Precipitation 

(1/2 PMP). 

As the majority points out, Monterey by letter dated July 30, 1976, 

was requested to submit a justification of the selection of the OPP 

design storm for its No. 3 impoundment. In this letter, MESA stated, 

"Adequate justification could be the use of Table 6.6." Monterey submitted the requested material and its plan for an "intermediate" impoundment was approved on July 6, 1977. In July of 1980, MSHA withdrew its 

approval and in September of that year issued the citation that gave 

rise to this proceeding. The basis for the citation was Monterey's 

failure to have an engineering plan for a "large" size impoundment. 

The dispute between MSHA and Monterey centers on whether the size 

classifications contained in Table 6.6 are based on the total volume and 

depth of stored water or on water plus settled solids or slurry. If 

water only is counted, both parties acknowledge that the impoundment is 

intermediate in size and the OPP is the appropriate design storm. If 

water plus slurry is counted, the impoundment becomes large in size 

under Table 6.6 and the design storm should be 1/2 PMP. 

The record plainly shows that the size classifications in the Table 

are based on water only. On page 6.3 of the Table, it is explained that 

the size classifications are based on water "above any settled material." 

The explanation of Table 6.6 continues with the statement that: 

... These volumes and height limitations represent 

conservative values compared to those typically 

specified for water impoundments •.•• However, coal 

refuse impoundments often contain settled fine refuse in addition to water, which could contribute 

significantly to downstream damage in the event of 

an embankment failure .... These limits reflect a 

conservative appr0ach to account for possible added 

damage due to settled slurry. 

Table 6.6 at 6.63 and 6.64. Joint Exhibit 6. 

This language means two things: first that the "size" classifications in the Table are based on water only; and second, that the 

authors took into consideration the potential damage of water plus 

J:l./ The description in the Table of an impoundment with low hazard 

potential is: "Facilities located in rural or agricultural areas where 

failure would cause only slight damage, such as farm buildings, forest 

or agricultural land, or minor roads." 

1022 
slurry in drafting the size portion of the Table. It shows that the 

authors of the Table took into account the differences between water and 

slurry in developing the design storm criteria for impoundments and 

deliberately based the size classifications on water only by using 

conservative figures. 

That the authors of the Table intended to.base their formulation on 

water only is confirmed by the principal editor of the Manual who was 

"directly involved in the development of Table 6.6." The testimony of 

Mr. Richard D. Ellison, the principal editor of the Manual and Executive 

Vice Preside~t of D'Appolonia Consulting Engineers, introduced by both 

parties in Joint Exhibit 10, reads: 

these dimensions relate to the water above 

any settled solids, and do not include the depth 

and volume of settled solids. This differentiation between water and settled solids was understood and considered at the time that Table 6.6 

was being developed. Accordingly, the discussion 

about how to use Part A of •'the Table, on Pages 

6.63 and 6.64 of the Manual, makes specific 

reference to the fact that only the water should 

be considered. 

Thus it cannot be disputed that the Table applies to ~ater only and 

that it was designed to apply to water only. In fact, MSHA's expert 

witness, Dr. Wu, Chief, Mine Waste and Geotechnical Engineering Division, 

Bruceton Safety Technological Center, Bruceton, Pennsylvania, admitted 

that the Table applies to water only. Wu at 16-17. We emphasize this 

point not only because the majority minimizes it but because it is 

necessary in a ~eview of MSHA's actions. The majority suggests that the 

judge was being overly "literal" in applying the Table. The judge, 

however, interpreted the Table as it is written and as it was intended 

to be interpreted. The Table must be "modified" to apply to water plus 

slurry. 

The reinterpretation of the Table in this fashion is illogical and 

tortuous. Table 6.6 is an engineering formula, not some phrase in a 

statute or regulation susceptible to various interpretations. One 

cannot take the formula, alter the definition of one of its terms, and 

then proceed to use it as if the formula retained any rational validity. 

Perhaps the judge put it best: 

[MSHA] cann~t .•• successfully charge an operator 

for the violation of the handbook's Table 6.6 

and at the same time ignore the definitions of 

the terms used in that Table. The formula for 

deriving the circumference of a circle is only 

valid if "R" equals the radius, and "Pi" equals 

approximately 3.1414. A change in the meaning 

of any of the terms destroys the effectiveness 

of the formula and the same is true of Table 6.6. 

1023 
The decision of the majority sanctions this illogical reinterpretation of .the Table. No attempt is even made to. provide a scientific 

or technical justification for modifying the specifications contained in 

the Table. This omission is not surprising because MSHA has advanced no 

engineering reason to explain why slurry should be counted when using 

this Table. In fact two MSHA officials thought they were correctly 

interpreting ·the Table as written. In this regard, Charles Rath, MSHA' s 

Supervisory Coal Mine Technical Specialist and author of the letter 

revoking approval of the plan responded as follows: 

Question: What if you were to learn that we were right, that 

Monterey Coal Company has correctly interpreted how 

one makes these calculations to determine the size 

of the. pond, would you recommend approval of the 

plan you disapproved in June? In other words, would 

you withdraw? 

Rath: Certainly if it could be proved that the interpretation is incorrect, that that wasn't the intent 

of the engineering parameters or whatever, why, 

certainly I wouldn't have any reservations about 

that. 

Rath at 22. (See also, Rath at 20, 28-29; Eslinger at 21-23.) 

Two other MSHA engineers said that they thought that the authors of 

the Table made a "mistake," but they provided no reason for that 

belief. 24/ The confusion on the part of MSHA's expert witnesses is not 

surprising given the fact that the slurry is already accounted for by 

the use of conservative numbers. Essentially, MSHA's present position 

"counts" the slurry and settled materials twice. 

24/ The MSHA engineers surmised that a "mistake" was made because the 

authors of the Table drew on the experience of the Corps of Engineers 

and the Bureau of Reclamation, agencies that are in the business of 

building structures that retain water only. Wu at 16-17; Mazzei at 12-

14. 

The belief that the authors of the Table did not take into account 

the difference between coal refuse impoundments and impoundments that 

retain only water is refuted by the language of the Table itself. The 

explanatory material on size classification in the Table says: "These 

volume and height limitations represent conservative values compared 

to those typically specified for water impoundments ... " Table 6.6 at 

6.63. In addition, Mr. Ellison, the principle editor of the Manual, unequivocally stated that the difference between water and settled solids 

was understood and considered when the Table was developed. 

Thus even the unfounded suppositions offered by MSHA to explain why 

slurry should be counted do not appear to be accurate. If the Table 

does not represent prudent engineering, it should be changed in its 

entirety and not modified arbitrarily because of unfounded guesses. 
Despite this, the majority finds that MSHA was justified in withdrawing approval of plan. The majority gives three principal reasons 

for upholding MSHA action in this case: (1) withdrawal of the plan was 

prompted by legitimate concerns over the stability of the structure; 

(2) MSHA has consistently interpreted Table 6.6 to include water plus 

slurry; (3) Table 6.6 is not a mandatory standard and MSHA is not bound 

by its literal terms. None of these rationales stands up under scrutiny. 

First, the assertion that MSHA's concerns about the stability of 

the dam prompted withdrawal of the plan is simply not supported in any 

fashion by the record. The dam had developed surface indications of 

possible stress -- the boils and slippage so emphasized by the majority. 

In response to these indications, MSHA had only recommended that the 

structure be closely monitored. Obviously, these signs of possible 

stress did not mean the dam was unstable, only that it bore watching. 

With the agreement of MSHA, Monterey had installed peizometers to monitor 

the dam in order to determine whether any corrective action were needed. 

The only relationship the monitoring project had to the citation was 

that the supposed "discrepancy" in approving an OPP design storm in 1977 

was discovered while the plan was b.eing reviewed in connection with the 

monitoring. '!:2_/ 

Both the citation and the correspondence between the parties show 

that approval of Monterey's plan was withdrawn solely because MSHA 

believed that Table 6.6 dictated a 1/2 PMP design storm for this impoundment. Not only did the initial MSHA withdrawal letter state that 

its action was based upon the fact that "Table 6.6 requires a 1/2 PMP 

design storm ~o be used for a structure of this size" (Joint Exh. 1), 

but a subsequent response to Monterey's defense of the plan was even 

more to the point: 

Table 6.6 ... recommends that for ... a large 

impoundment of low hazard, minimum design 

storm acceptable is the 1/2 PMP, 1/2 the Proable Maximum Precipitation. We must adhere to 

these recommendations. 

Joint Exh. 3. Neither the citation nor subsequent correspondence ever 

mentioned safety considerations as a basis for withdrawal of the 

plan. 2J!..../ 

'!:2_/ See Joint Exh. l; Eslinger at 4-8, 16-21; Rath at 8-12. 

26/ Even if it were true that safety considerations prompted revocation 

~the plan, MSHA's withdrawal of plan approval would be legally defective 

for its very failure to state the true reason. The Commission, like a 

reviewing court, "must judge the propriety of such action solely by the 

grounds invoked by the agency. If those grounds are inadequate or· 

improper, the Court is powerless to affirm the administrative action 

... " Secretary v. Chenery Corp., 332 U.S. 194, 196 (1947). See also 

Burlington Truck Lines, 371 U.S. 156, 169 (1962)(the law requires "an 

agency's discretionary order be upheld if at all, on the same basis 

articulated in the order by the agency.") 

1025 
But there is an even greater problem with the majority's conclusion 

that safety considerations prompted revocation of the plan. The MSHA 

officials involved in this case have repeatedly disavowed the suggestion 

that safety concerns were the basis for their action. Charles Rath, the 

author of the letter revoking approval of the plan, denied that revocation 

of the plan was related to concerns about stability. ]:]_/ The man who 

issued the citation, Charles Eslinger, a mining engineer who specializes 

in impoundments, was also emphatic that the design storm "error" was the 

only reason for revocation of the plan. He confirmed Rath's statement 

that MSHA did not require lowering the level of the pond because of 

stability problems. Eslinger said that "we would not at this time do 

anything about the stability aspect" except to closely monitor the 

facility. 28/ 

27/ The following exchange during Rath's deposition shows this: 

Question: [was] the withdrawal of the plan's approval because 

Rath: 

of the design storm error as we discussed another way to 

get at a concern with the stability of the dam? 

No, net at all. (Rath at 39-40). 

28/ Here is what Eslinger said during his deposition: 

Question: When the plan approval was withdrawn in June, it 

was withdrawn because of a design storm error, is 

that correct? 

Eslinger: Right. That's the only consideration. 

Question: But the approval was only withdrawn for this reason? 

It wasn't withdrawn because of the phreatic level 

consideration, is that correct? 

Eslinger: No, at this time we felt that we were only going to 

address the problem of the wrong design storm. We did 

not require that it be lowered because of the stability. 

We felt that at sometime in the future maybe we would 

have to do that. 

Question: But you would continue to monitor closely? 

Eslinger: Continue to monitor, inspect. They're required by 

regulations to make a reading of those piezometers 

once every seven days and we can request them for 

that information. And we felt that we would. not 

at this time do anything about the stability aspect, 

although this in itself would probably help the 

f?tability analysis because you're lowering the water 

level a foot and a half. But that was not .•• it 

was just based on the design storm, that was the 

only consideration. 

Eslinger at 21-23. See also, Mazzei at 36. 

1026 
On this record, the judge quite rightly found that MSHA did not 

revoke approval of the plan because the impoundment was unsafe. To 

overturn that.finding, the majority has had to skirt direct testimony 

that the citation was issued solely because MSHA incorrectly believed 

that the wrong design storm was used. The majority has also completely 

ignored the fact that the MSHA officials who issued the citation repeatedly 

and consistently denied that stability problems prompted their action. 

We can understand their reasons for taking this path, for to uphold 

the citation is a formidable task given the evidentiary record developed 

bel9w. The specter of disaster, as opposed to the evidence which we are 

statutorily required to review, is conjured up to justify this arbitrary 

administrative action. The majority engages in the following line of 

reasoning: the impoundment had shown "signs of stress"; reinterpreting 

the Table would result in a lower water level; lowering the water level 

would increase the safety of the structure; therefore, the reasons for 

disapproving the design storm can be disregarded because safety will be 

enhanced in any event. 

It is irrefutable that the safety of any impoundment is increased 

when the water level is lowered. Less water means less pressure on the 

structure. An impoundment that contains nothing is safest of all. The 

majority marries this less-is-safer notion with the fact that the 

operation of the dam was being monitored to reach the conclusion that 

withdrawal of the plan was justified. Repeated references to slippage, 

boils and instability create the impression that MSHA stepped in to 

protect the public interest when it withdrew the plan. 

The severity of the safety problems at this facility have been 

exaggerated. MSHA has always considered this impoundment to have a "low 

hazard potential" on a scale of low, medium, and high. The firm of 

Hanson Engineers, Inc. which has inspected, conducted remedial construction upon, and closely monitored the No. 3 impoundment since 1975, 

gave the following assessment of the stability of this structure: 

Based upon field observations and the field and 

laboratory data developed over the years, it is 

[the] opinion ... of Hanson Engineers, Inc. that 

the embankment distress experienced at. the No. 3 

impoundment is basically a surface feature, and 

that it does not suggest that the mass stability 

of the embankments has deteriorated. The static 

and dynamic factors of safety for mass stability 

reported by Hanson Engineers, Inc. in March 1979 

for a pond elevation of 662.0 (i.e., minimum 

static factor of safety= 1.7 and a minimum dynamic factor of safety = 1.2 to 1.3) are conside.red to be reasonable estimates of safety 

against failure as based upon the standards of 

practice of the profession and the present state 

of the art. These factors of safety would not be 

significantly different for pond levels 1 to 2 ft. 

higher or lower than elevation 662.0. 

1027 
The sworn professional opinion of this firm is that the maintenance of 

this impoundment at the 662 foot water level, a level consistent with 

the use of an intermediate size classification, combined with the monitoring program, represents "prudent engineering practice for the continued safe operation of the No. 3 impoundment." Joint Exh. 11. 

It was also apparently the opinion of MSHA that this impoundment 

posed no immediate risk. ']!}__/ If such a risk did exist, MSHA could have 

and should have issued an imminent danger order. Requiring that the 

water level be lowered a foot and a half, an action that would have no 

significant effect on the safety of the structure according to Hanson 

Engineers, would not have been an adequate corrective measure if this 

facility posed any real danger. 

What we have here is a massive attempt at post hoc rationalization. 

Put in the vernacular, MSHA clearly goofed. It ordered Monterey to 

amend its plan to drop the water level a foot and one-half because MSHA 

believed that the Manual dictated this result. Because the Manual did 

not dictate that result, as Dr. Wu admitted, safety concerns were seized 

upon to cloak this mistake. The record shows what MSHA did and why it 

did it. We cannot ignore the facts and find that safety compelled 

withdrawal of the plan. 

The additional reasons given by the majority for upholding this 

citation also evaporate when examined. The majority says that MSHA's 

action should be sanctioned because MSHA has consistently interpreted 

Table 6.6 to refer to water plus slurry, "insofar as the record in this 

case reflects." The record in this case does not "reflect" any such 

evidence to support a "consistent interpretation." The evidence on 

whether MSHA has·consistently interpreted Table 6.6 is scant. It 

consists only of the statements of MSHA's witnesses made during this 

litigation that they interpreted Table 6.6 to refer to water plus 

slurry. Two of those witnesses thought they were correctly interpreting 

the Table as written. ]!}_/ In this very case, a size classification 

based on water only was approved when the initial plan was reviewed in 

1976-77. No published material to substantiate a consistent agency-wide 

practice apparently exists. Thus, we do not know that MSHA has always 

interpreted the Table in this fashion. 

2:2/ Inspector Eslinger stated "There is a degree of hazard associated 

with an impoundment structure. Just like when you operate a car there 

is a degree of hazard .... And when you build an impoundment, there is 

some hazard associated with it." But, said Inspector Eslinger, "I don't 

see it failing in the near future. I would think there would have to be 

serious deterioration of the quality of the structure before -it failed." 

Eslinger at 15; see Rath at 39-40; see also Mazzei at 39-40, 74 (his 

concerns could be adequately addressed through close monitoring rather 

than lowering the water level). 

30/ Rath at 20, 22, 28-29; Eslinger at 21-23. 

1028 
More importantly, even if MSHA has consistently interpreted the 

Table to refer to water plus slurry, that alone does not warrant according 

deference to MSHA's interpretation. The majority cites no authority 

(because there is none) that an agency's interpretation should be deferred 

to simply because the agency has been consistently mistaken. 

Deference is accorded to an agency's interpretation only when the 

agency's interpretation is reasonable. 31/ The interpretation advanced 

by MSHA is wholly unreasonable. Not only is it contrary to the plain 

meaning of Table 6.6 and the plain intent of engineers who formulated 

the Table, it is inherently illogical. Moreover, not a shred of evidence 

has been presented on which we as adjudicators could pase a finding that 

MSHA's interpretation is reasonable. In the face of this, blessing 

MSHA's interpretation simply for the reason that it may have been consistent has no basis. 

Lastly, the majority excuses MSHA's arbitrary action in this case 

on the grounds that MSHA is not bound by the literal terms of Table 6.6 

because it is a guideline, not a mandatory standard. The principle that 

an agency is not bound by guidelines that have not been promulgated as 

regulations is inapposite here. MSHA withdrew approval of Monterey's 

plan for the very reason that Monterey allegedly did not comply with 

this guideline. 

MSHA is not bound to follow the guidelines in Table q.6. New 

standards for selecting design storms should be developed if they are 

needed. But when MSHA does follow Table 6.6 and when it requires 

Monterey to follo~ Table 6.6, it must do so rationally and correctly 

within the terms of the Table. MSHA has broad discretion in regulating 

coal refuse impoundments through the plan approval process. But that 

discretion can be abused. We must dissent because such an abuse took 

place in this case. 

31/ Lucas Coal Company v. Interior Board of Mine Operation Appeals 522 F.2d 

581, 584 (3rd Cir. 1975). 

1029 
Distribution 

Timothy M. Biddle, Esq, 

Thomas C. Means, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 20036 

Linda Leasure 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Charles C. Moore 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1030 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUN 1 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND.HEALTH 

ADMINISTRATION (MSHA), 

v. 

VALLEY CAMP OF UTAH, INC., 

Respondent 

: . 

DECISION 

Docket No. WEST 82-118 

A/O No. 42-01279-03060 V 

Belina No. 1 Mine 

1983 

At a hearing in Salt Lake City on or about March 23, 1983, the 

parties moved to approve settlement of the captioned penalty proceeding. 

The single violation was bottomed on the charge that a continuous 

miner operator had committed a condoned violation of the operator's 

approved control plan by working his continuous miner 30 feet inby the 

last row of permanent roof supports. The settlement proposed was $1,000. 

Based on an independent evaluation and de nova review of the 

circumstances the trial judge rejected the settlement on the ground 

it was insufficient to deter future violations and insure voluntary 

compliance either by management or the contract miners. Whereupon, the 

parties agreed to submit a proposal to increase the amount of the 

penalty to $2,500 and to make a matter of record a reprimand of the two 

individuals responsible for the violation together with an assurance 

from management that recurrence of such conduct would be the subject of 

disciplinary action, including discharge. 

It is my firm belief, often expressed, that unless and until 

contract or day-rate miners (rank-and-file miners) are sanctioned for 

knowing violations of the mandatory health and safety standards the 

purpose and policy of the Mine Safety Law will never fully be achieved. 

The Secretary and the Unions, of course, do not agree. Nevertheless, 

I will continue to use the limited power vested in my office to impress 

on rank-and-file miners the vital necessity for compliance with mining 

practices that time and experience have shown to be essential to the 

preservation of the industry's and the nation's most precious resource--

the miner him/herself. 

The premises considered, I find the renewed motion to approve 

settlement is in accord with the purposes and policy of the Act. 

1032 
Accordingly, it is ORDERED that the motion be, and hereby is, 

GRANTED. It is FURTHER ORDERED that the operator pay the amount of 

the penalty agreed upon, $2,500 on or before Friday, June 24, 1983 

and that subject to payment the captio matter be dismissed. 

Distribution: 

Joseph B. Kenneay 

Administrative Law Judge 

Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1585 Federal Bldg., 1961 Stout St., Denver, CO 80294 

(Certified Mail) 

James A. Holtkamp, Esq., Van Cott, Bagley, Cornwall & McCarthy, 

50 South Main St., Suite 1600, Salt Lake City, UT 84144 '(certified 

Mail) 

Richard L. Trumk.a, Esq., President UMWA, 900-15th St., N.W., Washington, DC 

20005 (Certified Mail) 

1033 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 3 1983 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner· 

v. 

CARPENTERTOWN COAL & COKE CO., · 

Respondent 

Docket No. PENN 82-312 

A.C. No. 36-04595-03501 

Mahoning Creek No. 2 Mine 

DECISION 

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

Labor, Philadelphia, Pennsylvania, for Petitioner; 

Before: 

Robert W. Thomson, Esq., Reed, Smith, Shaw & Mcclay, Pittsburgh, 

Pennsylvania, for Respondent. 

Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

Petitioner brought this proceeding, seeking civil penalties for two alleged 

violations of the mandatory safety standard contained in 30 C.F.R. § 75.316 

allegedly occurring on March 24, 1982. At the commencement of the hearing, the 

Secretary moved.that the petition be dismissed with respect to one of the 

citations because investigation subsequent to its issuance disclosed that it 

had been issued in error and that the Respondent was not in violation of 'the 

standard as charged in the citation. Respondent did not oppose the motion. The 

remaining citation charges that Respondent violated its approved ventilation 

plan because an evaluation point (also called a monitoring point) was in an area 

that could not be reached because of loose rock and water accumulations in the 

travelway. 

In January, 1982, Respondent requested approval of an amendment to its 

ventilation plan which would include the relocation of the No. 9 evaluation 

point because of dangerous roof conditions. The request was denied by the 

MSHA district office on the ground that the revised location of the evaluation 

point would not assure adequate ventilation in the idled worked-out areas. In 

April, 1982, (after the issuance of the citation) the relocation was approved 

contingent on the establishment of five ventilating boreholes, to be drilled 

from the surface to the old No. 9 evaluation point. 

1034 
Respondent contends that the evidence does not establish the alleged violation of 30 C~F.R. § 75.316; and that the denial by MSHA of the request for 

relocation of the evaluation point was arbitrary, capricious and unlawful. 

Pursuant to notice, the case was called for hearing on April 14, 1983, in 

Pittsburgh, Pennsylvania. Lester C. Walker, Federal coal mine inspector and 

Alex O'Rourke, MSHA supervisory mining engineer, testified on behalf of 

Petitioner; Carl Nagodi, Respondent's resident engineer, and Donald Lilley, 

Respondent's Director of Health and Safety, testified for Respondent. Closing 

arguments were made by counsel for both parties, and each was given the 

opportunity to file posthearing briefs. A brief was filed on Respondent's 

behalf. 

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

I make the following decision. 

FINDINGS OF FACT 

1. At all times pertinent to this proceeding, Respondent was the owner 

and operator of the Mahoning Creek No. 2 Mine, an underground coal mine in 

Armstrong County, Pennsylvania. The subject mine produces goods which enter 

interstate commerce. 

2. Respondent is a medium sized operator. There is no evidence that a 

penalty imposed herein will affect its ability to continue in business, and I 

therefore find that it will not. 

3. Respondent demonstated good faith in abating the alleged violation. 

4. Respondent's history of prior violations is good. 

5. The ventilation plan for the subject mine approved by MSHA on 

October 26, 1981, and in effect on March 24, 1982, required regular weekly air 

readings to be taken at designated evaluation points shown on the mine map 

which was part of the plan. One of the designated evaluation points, number 9, 

in the 1 left off the Northwest Mains section, was not travelable on March 24, 

1982, because of loose rock and water accumulations. 

6. On March 24, 1982, Inspector Walker issued a citation charging a violation of 30 C.F.R. § 75.316-2(f)(l) because the No. 9 evaluation point in the 

ventilation plan was no longer travelable. The citation was modified on July 14, 

1982, to allege a violation of 30 C.F.R. § 75.316 and to state that the weekly 

examination was not being performed due to loose rock and accumulations of water. 

7. The area of the number 9 evaluation point had been "dangered off" by 

a State of Pennsylvania mine inspector prior to March 24, 1982, because of the 

roof condition. The roof could have been repaired and the area made safe by 

timbering and cribbing it. This, however, would have involved a considerable 

amount of work. 

1035 
8. Inspector Walker had visited the same area of the mine in early 

January and noted the deteriorating roof conditions at that time. 

9. On January 18, 1982, Respondent requested that monitoring points No. 9 

and No. 12 be relocated because of dangerous roof conditions and flooding. This 

was done at least in part as a result of the suggestion of Inspector Walker. 

10. MSHA denied ·approval of the request by letter dated Febrμary 2, 1982, 

on the ground that the revised locations of the evaluation stations "would not 

assure the idled worked-out areas ••• would be adequately ventilated." 

11. A supplemental request pertaining evaluation point No. 12 was 

submitted to MSHA on March 3, 1982. 

12. On March 18, 1982, MSHA approved the relocation of evaluation point 

No. 12 subject to certain conditions. It repeated that permission was not 

granted to relocate the No. 9 evaluation point. 

13. The proposed relocation of evaluation point No. 9 was approved 

April 22, 1982, subject to establishing boreholes at locations acceptable to 

the MSHA District Manager, and subject to certain other conditions. 

14. The citation referred to in Finding of Fact No. 6 was terminated on 

. April 22,. 1982, because "a new map was submitted and approved by the District 

Manager showing the relocation of the No. 9 evaluation point in the 1 left off 

Northwest mains section." 

15. There· is no history of methane liberation in the subject mine. 

16. The purpose of the evaluation points in the ventil~tion plan is·to 

assure ventilation in abandoned or worked-out areas of the mine. The original 

request was denied because in MSHA's judgment, to move the point 1,300 feet 

outby as requested would mean "1300 feet less of the mine that we could assure 

ventilation in." 

17. The revised request for relocation of evaluation point No. 9 was 

granted because it included a proposal to drill boreholes from the surface to 

the original evaluation point 9 which would assure ventilation from the borehole to t.he relocated point 9. The revised request was based on numerous 

meetings between Respondent and MSHA, and the possibility of drilling boreholes 

had been discussed at these meetings. 

18. It was and is the position of Respondent that all the air that would 

have been measured at the original point 9 was being measured at the relocated 

point 9, and that the boreholes had no effect on the movement of air between 

the two points. 

1036 
ISSUES 

1. Was Respondent in violation of 30 C.F.R. § 75.316 on March 24, 1982, 

as charged in the citation as modified? 

2. Can Respondent in a penalty proceeding raise the issue whether MSHA's 

refusal to modify an approved ventilation plan was arbitrary, capricious and 

illegal? 

3. If so, was the refusal by MSHA to modify the approved ventilation plan 

as requested by Respondent prior to the issuance of the citation herein 

arbitrary, capricious and illegal? 

4. If a violation of a mandatory standard is found to have occurred, what 

is the appropriate penalty therefor? 

CONCLUSIONS OF LAW 

1. Carpentertown Coal and Coke Company was subject to the provisions of 

the Federal Mine Safety and Health Act in the operation of its Mahoning Creek 

.No. 2 Mine at all times pertinent hereto, and the undersigned Administrative 

Law Judge has jurisdiction over the parties and subject matter cif this proceeding. 

2. On motion of the Secretary, the petition will be dismissed with respect 

to the violation charged in Citation No. 1144824. The Secretary stated that the 

facts did not show a violation as alleged, and that the citation was issued in 

error. 

J.4 Respondent's brief discusses the citation (1144826 issued April 14, 

1982) alleging a violation of 30 C.F.R. § 75.200 and the withdrawal order issued 

April 20, 1982, for failure to abate the violation alleged. The citation was 

subsequently vacated and the order declared void. Neither the citation nor the 

withdrawal order are before me in this proceeding, and I do not pass upon their 

propriety. Respondent states, however, that it agreed to drill boreholes only in 

order to obtain MSHA's permission to relocate the evaluation point and get the 

withdrawal order lifted. 

4. The evidence shows prima facie, that Respondent on March 24, 1982, was 

in violation of its approved ventilation plan and therefore was in violation 

of 30 C.F.R. § 75.316. 

DISCUSSION 

Respondent argues that 75.316 only requires the adoption of a plan approved 

by the Secretary and that it include certain information. It is much too late 

to argue that the provisions of an approved ventilation plan are not themselves 

enforceable as mandatory safety standards under the Mine Safety Act. See 

Zeigler Coal Company, 4 iBMA 30 (1975), aff'd sub~ Zeigler Coal Company v. 

Kleppe, 536 F.2d 398 (D.C. Cir. 1976); Secretary v. Mid-Continent Coal and Coke 

Company, 3 FMSHRC 2502 (1981); Secretary v. Freeman United Coal Mining Company, 

5 FMSHRC 590 (1983) (ALJ). There is no question here but that the approved plan 

1037 
required that air readings be taken at evaluation point No. 9 which on 

March 24, 1982, could not be reached because of adverse roof conditions and 

water accumulations. Therefore, prima facie, the ventilation plan was not 

being complied with, which ipso facto is a violation of a mandatory health or 

safety standard. However, prior to the issuance of the citation, Respondent 

had requested a variance in the plan to relocate evaluation point No. 9, which 

request had been denied. The basic issue in this case is whether the requested 

variance and its denial can be asserted in defense of what otherwise would be 

a violation of the plan. 

5. A mine operator may not unilaterally change an approved ventilation 

plan without MSHA approval even if it is shown that the change enhances rather 

than diminishes safety. Secretary v. J. & R. Coal Company, 3 FMSHRC 591 (1981) 

(ALJ). The Secretary is charged by law with protecting safety in the nation's 

mines in the public interest. Under section 303(0) of the Act (repeated in 

30 C.F.R. § 75.316), a mine operator must adopt "a ventilation system and 

methane and dust control plan" which the Secretary must approve before it is 

effective. The Act contemplates that the Secretary and mine operators will 

cooperate in developing and revising such plans in accordance with changing 

conditions in the mines. 

6. I conclude that a mine operator may, in a proceeding to assess a penalty 

for violation of an approved plan, challenge the reasonableness of MSHA's refusal 

to modify the plan which had been requested by the operator. In Zeigler v. 

Kleppe, supra, the Court of Appeals stated at page 407 that a mine operator might 

contest an action seeking to compel adoption of a plan with terms not designed 

for the specific circumstances of the mine involved and, at page 410, that the 

imposition of "outrageously ultra vires plan provisions" nominally adopted by 

a mine operator would not be enforced by a court. By analogy, I conclude that 

an operator who has unsuccessfully sought a variance may, in a penalty proceeding for violation of a provision of the plan, defeat the action if he can show 

either that compliance with the terms of the plan was impossible or that MSHA's 

denial of the variance was arbitrary, capricious or unreasonable. 

7. Compliance with the ventilation plan requirement that air be monitored 

at eval~ation point No. 9 was not impossible as of March 24, 1982. Both the 

Inspector and Respondent's Safety Director agreed that the roof leading to the 

"old" evaluation point 9 could have been supported with cribs and posts. It 

would have been a major and difficult task but was not impossible. Furthermore, 

as is previously stated herein, MSHA approved the relocation of the evaluation 

point when boreholes were included in the request. According to O'Rourke, MSHA 

would also have approved a modification of the plan involving sealing off the 

abandoned area. Compliance was therefore not impossible. 

8. The initial refusal of MSHA to approve the relocation of evaluation 

point 9 and its insistence on the establishment of boreholes to the surface 

before approving the requested relocation were not arbitrary, capricious or 

unreasonable. 

1038 
DISCUSSION 

MSHA initially rejected Respondent's request to relocate the evaluation 

point 9, because moving the point outby meant that to the extent it was moved," 

that much less of the abaμdoned area could be assured to have ventilation. 

(Tr. 40). MSHA had, prior to March 24, 1982, suggested the drilling of boreholes to assure ventilation in the affected area, but Respondent did not include 

a proposal to drill such boreholes until April 22, 1982. It is the position of 

Respondent that the air measured at the proposed relocated evaluation point 9 

would also measure the air at the old evaluation point 9 and that the boreholes 

did not give any additional information as to ventilation. MSHA's position was 

stated by Alex O'Rourke, a supervisory mining engineer, whose primary duty is to 

evaluate plans or programs including revisions thereof, submitted by mine operators to the MSHA District Manager. Respondent's position was stated by Donald 

Lilley, its Director of Health and Safety, formerly a training instructor with 

MSHA, who had no professional training in mining engineering. The evidence shows 

a bona-fide technical dispute concerning a very limited issue. Even if I accepted 

the conclusions of Mr. Lilley (and Respondent), I would not conclude that MSHA's 

position was unreasonable, arbitrary or capricious. The law requires MSHA's 

approval for a variance. MSHA may not impose unreasonable conditions or arbitrarily deny a request, but obviously may impose reasonable conditions and need 

not grant every good-faith request to modify a plan proposed by a mine operator. 

There is no evidence in this record to support Respondent's hyperbolic statement 

tl:iat "this is a case where bureaucratic bungling and red tape with not a little 

governmental arrogance caused a problem that need never have arisen." The evidence does show a disagreement as to whether the modification originally sought 

by Respondent would enable M8HA to assure itself that the abandoned area in 

question would be ventilated. It is MSHA's responsibility to approve plans only 

when it has that assurance. The conditions it imposed in this case were neither 

unreasonable nor arbitrary. 

9. Since I concluded that MSHA did not unlawfully reject Respondent's 

request for modification of the approved ventilation plan, I need not address 

the contention raised by Respondent that the Mine Act's failure to provide a 

means for direct review of the MSHA action denying the requested variance is 

unconstitutional. 

10. The violation charged in the citation and found herein to have 

occurred was not serious. 

11. There is no evidence that the violation was the result of Respondent's 

negligence. 

12. Based on the criteria in section llO(i) of the Act, I conclude that 

an appropriate penalty for the violation found is $20. 

ORDER 

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

ORDERED: 

1. Citation No. 1144824 is VACATED and the penalty proceeding with respect 

to the violation charged in the citation is DISMISSED. 

1039 
2. Respondent shall within 30 days of the date of this decision pay the 

sum of $20 fo~ the violation of 30 C.F.R. § 75.316 charged in Citation 

No. 1144823 and found herein to have occurred. 

j cV1M.d ug~ tJde:11teL 

James A. Brqderick 

Administrative Law Judge 

Distribution: By certified mail 

David T. Bush, Esq. , Office of ·the Solicitor, U.S. Department of Labor, 

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

Robert W. Thomson, Esq., Reed, Smith, Shaw & McClay, Union Trust Building, 

P.O. Box 2009, Pittsburgh, PA 15230 

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

Washington, DC 20005 

1040 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUN 3 

SECRETARY OF LABOR; Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CO-OP MINING COMPANY, 

Respondent 

DECISION 

Docket No: WEST 81-268 

A/O No: 42-00081-03027 V 

Co-op Mine 

1983 

Appearance: Phyllis Caldwell, Esq., Office of the Solicitor, U.S. 

Department of Labor, 1585 F.O.B., 1961 Stout Street,_ 

Denver, CO for Petitioner 

Before: 

Carl E. Kingston, Esq., 53 West Angelo, Salt Lake City, 

UT 84115 for Respondent 

Judge Moore 

At the outset of the trial it was stipulated that reepondent's 

annual_ production· was approximately 141, 233 tons and that it employed 

approximately 25 miners. As to the history of prior viol?.tions there 

was some question about the printout because it covered more than a 2-

year period. While MSHA, in its assessment formula, only considers violations 

within 2 years of the one being assessed, such limitation does not bind 

this Commission or its administrative law judges. The computer printout 

was received in evidence as Exhibit P-1. 

The printout has many flaws, however, and is not self-explanatory. 

For example it includes assessed violations which have not been paid and 

there is no indication whether they have been contested or vacated or 

whether respondent has simply refused to pay. Such alleged violatious are 

clearly not a part of the history of prior violations. A substantial number 

of the alleged violations listed on the computer printout occurred betw~en 

January 6, 1979 and January 26, 1981. Specific dates of the alleged violatio~s 

are not listed. The earliest order issued in the instant c~se was issued 

on January 6, 1981. While it is unlikely that all of the listed violations 

were issued between January 6 and January 26 of 1981 I can not make the 

assumption that they were not so issued, and even if I did I would have no 

way of knowing how many occurred prior to January 6 of 1981. The entire 

right half of Exhibit P-1 is stricken from the record.. As to the left 

hand column it does show that some time prior to January 6, 1979 

respondent had paid $12,578 in civil penalties. 

1041 
Government Exhibit P-3 is a mine map with numerous markings thereon. 

There are five different colors used on the map. The testimony transcribed 

at pages 12 through 17 purports to describe what these various colors 

represent. I find that the description is inadequate and that the mine 

map is of very little value in resolving the issues in this case. The 

mine map attached to the government's brief is very good, however. 

While it was not mentioned,in the briefs, respondent brought out in 

the course of the examination of the inspector, that at the time the 

citations involved in this case were issued, the United Mine Workers of 

America was on strike, and while Co-op's mine was a union mine it was 

not organized by the United Mine Workers and was not on strike. The 

inspector's brother "was president of the union." (Tr. 87). I presume 

the witness meant the local United Mine Workers chapter. The Co-op mine 

was organized by the International Association of United Workers Union. 

(Tr. 150). ]:./ I find that bias on the part of the inspector was not 

established. 

Withdrawal Order No: 1022260 alleges a violation of 30 C.F.R.75.1704 

in that two separate and distinct travelable passageways for use as escapeways were not being maintained. The reason that they were not being properly 

maintained was that a roof fall had occurred in the intake air escapeway 

and the debris was in a pile that was about eight feet long and four to 

five feet high. The inspector considered that as blocking the passage 

which was one of the two escapeways. The other escapeway (return air) will 

be considered later. 

Mr. Bill Stoddard described the areas as follows--"this area was a 

problem area. We had two parallel faults about 50 feet apart, and the roof 

had dropped down about four feet, the roof of the mine dropped down about 

four feet for 50 feet, then back up. So it was a. problem area." (Tr. 61). 

After discussing the roof bolts and wire mesh that were holding up the 

roof he said the cave-in material was about two feet high and four feet 

across, that there was no loose roof and he could see that the section foreman had driven his tractor over the two feet of mud and gone on to work. 

"So it wasn't blocked off and I went in and talked to Kevin at that time 

about it." 

Mr. Nathan Attwood, a mine foreman, was not in the mine at the actual 

time of the inspection but was there on the same day, January 6. 

He stated that both escapeways were travelable in a safe manner. (Tr. 137). 

Mr. Kevin Peterson another mine foreman said in the area where the 

June 6 order was issued, he had conducted a pre-shift examination, barred 

down some material with other material previously barred down, created a 

two foot high mound and driven his tractor over the mound and on into the 

face area. He was with the inspector during the inspection and the tracks 

where he had driven the tractor over the pile earlier in the day were 

visible. 

1/ For some reason witnesses Attwood and Mattingley were left out of 

the index to the transcript. 

1042 
After considering the testimony discussed above, I find that there was 

no roof fall in the area as stated by the inspector, but a pile of 

debris that had been barred down from the roof. I further find that the 

tractor had been driven over the pile of debris and that the escapeway on 

intake air was not blocked by the pile of debris. Referring to this area 

the citation says "a roof fall and bad top is pres~nt between the numbe~ 13 

and 14 crosscut in the intake air entry ••• " Everyone who testified concerning 

this ·area admitted it was a problem area with "bad top" but that does net 

mean that the "bad top" was not properly supported. It is significant to 

me that the inspector did not, on Janu~ry 6, 1981, issue any roof control 

citations. I therefore find the intake escapeway was not blocked by either 

debris or dangerous roof conditions. 

The other escapeway is partially in return air and partially along a 

belt entry. The inspector said the roof was supported by cribs and cross 

bars and that they had "tremendous weight on them." (Tr. 21). He stated 

"when he started around that crib and to get down into that hole, the 

amount of pressure that was on those cribs and on those crossbars, there 

wasn't no way that I was going to go through it." (Tr. 22). Concerning 

the same areQ and the secondary escapeway Mr. Peterson said: 

"and we got right here to these cribs and Mr. Jones 

said that he didn't want to go any further and that 

he couldn't get through there. And we had been 

going through there and the belt man had been going 

through there and we continued to go through there 

setting timberc and cribs and carrying timbers and 

cribs in there. because we realized that was a 

problem area and we were supporting it." (Tr. 126). 

When asked if there was anything in either the primary or secondary 

escapeway that would prevent safe passage on January 6, he answered no. 

In balancing the testimony of the various witnesses I find that the 

government has not sustained its burden of proof with respect to this 

withdrawal order. 

Although it was not mentioned at the trial or in the briefs, the 

inspector in this case failed to check the block which would make this a 

citation. He ch~cked only "order cf withdrawal" block. In Kontiki Coal 

Corporation vs. Secretary of Labor 1 FMSHRC 1476 (October 25, 1979), and in 

Secretary of Labor vs. Wolf Creek Collieries Company which is reported in 

the first unpaginated volume of FMSHRC decisions dated March 1979, the 

judges had found violations and assessed penalties, but had vacated withdrawal orders because of the failure of the Secretary to establish the 

underlying citations. In reversing the judges, the Commission stated that 

it was improper to vacate a withdrawal order in a penalty proceeding. 

Both of those Commission decisions involved the 1969 Coal Act and in each, 

the alleged violation was established. In my opinion that is an entirely 

different situation than .the instant situation where I have found that no 

1043 
violation existed. It would make no sense to leave a non-imminent danger 

order, that was issued solely because of an alleged violation of a safety 

standard, undisturbed in the face of a fi~ding that no violation occurred. 

I therefore vacate the withdrawal order. 

Withdrawal Order No: 1022262 charges that the operator failed to follow 

its roof control plan and adequately support the roof of the return air entry. 

The part of the return air entry involved herein was not designated as 

an auxiliary or secondary escapeway. Concerning this return entry, the 

inspector stated: 

"When we got in here a-ways we encou~tered some bad top ••. 

I think we was in about 600 feet. And then he wanted to 

take me through a door out into the belt entry and I told 

him no I wanted to stay in the return entry because .••.• 

JUDGE MOORE: 

WITNESS: 

You say bad top. Bad enough so you wouldn't 

walk under it? 

It was getting bad--it was getting bad; it was 

so high in there that it was hard to sound it 

with your thumping stick, so really I was getting 

a doubt in my mind as to how much further I 

wanted to go. 

But anyway, he told me we couldn't go on through 

the return entry, that there were some large caves 

in that ar.ea. And I said, 'well, how have they 

been making their examinations?' He said, 'well, 

we've been making it up to this point and then 

going into the belt entry and up around'".[Tr.36-37]. 

He then ran into what he called "big caves" where the material from the 

roof filled the entire entry, he could possibly crawl over the pile of coal 

but he would have to go up above the roof line to do so. He referred to 

the caved-in material as coal, but he did not issue any citations for 

coal accumulations. It was later explained that plenty of air could go 

over the top of the mound and that the inspections were made by going as 

far as the caved-in material on one side and then going back out into a belt 

entry, walking past the cave area, and then back into the return air are~­

and then to proceed in the opposite direction to inspect the entry as far as 

that end of the cave area was concerned. This had been approved by MSHA 

for a long time (Tr. 75). A few days before inspector Jones arrived at the 

mine the operators were advised that because of an explosion in an eastern 

mine, MSHA had changed its position and would henceforth insist that a 

return airway be maintained so that all of it could be walked through. 

The statement on page 7 of the government's main brief "allowing large 

roof falls to remain in the return air entry is clearly a violation of the 

operatorl1s roof control plan" may be true. I have not seen the plan or 

been informed of what it requires, but such plans are usually concer~ed 

with supporting a roof rather than cleaning up after a roof fall. The last 

paragraph beginning on page 7 of the government's main brief states: 

1044 
Mr. Stoddard, the mine manager, said that he thought that 

allowing this condition to exist was okay because an MSHA 

supervisor or "some inspector" was "aware" of or had seen 

it, or "some" circular said it was okay. Yet Mr. Stoddard 

had never applied for a variance and had never gotten one. 

(Tr. 108-109). He did not have a copy of any circular 

nor was he able to be specific about the foundation for 

his assumption that some "variance" he thought he had 

was "chang~d." Respondent clearly knew he would be using 

this defense at trial and could have supported this 

hearsay testimony with the "documents'i referred to or 

with the MSHA supervisor's testimony, if such evidence 

did exist. Respondent never attempted to .obtain 

the presence of Mr. Matekovic (the supervisor referred 

to) at the trial, either by subpoena or through 

this counsel's cooperation. As a mine operator, Mr. 

Stoddard is charged with the knowledge that any variance 

must be in writing. For obvious reasons he chose to 

assume that he had authority to leave the deteriorated 

conditions in this entry. It would have taken a g~eat 

deal of his miners' time and labor to rehabilitate this 

entry. When this order was issued the operator knew he 

had to.completely abandon that entry •. It was easier to 

establish a return air entry somewhere else because "we 

couldn't rehabilitate that cave" (Tr. 77). 

The language quoted above implies that the circular that Mr. Stoddard 

testified about either does not exist or that the government does not 

k..~ow whether it exists or not. If the government can prove that the 

circular referred to does not exist, it should consider prosecuting 

Mr. Stoddard for perjury. If the circular does exist, and the Solicitor's 

office is aware that it exists, then it should question the properiety of 

including the above statement in its brief. 

Nevin Mattingly is an electrician and vice president of the local 

International Association of United Workers Union. As such he is concerned 

with the safety of the miners. He accompanied· Mr. Jones on January 8 

and did not see any dangerous roof and stated that every time he had gone 

through the area it alooked sufficient." 

In its reply brief the government challenges the credibility of 

Mr. Mattingly. On page 4 the following appears: 

Mr. Stoddard, an owner and the mine manager clearly 

stated that "we' re non-union. (Tr. 87)". Yet the operator 

attempted to present Mr. Mattingly as a union representative 

in an effort to establish him as a credible and objective, 

even adversary voice. 

On Page 87 of the transcript it is explained that the U.M.W. was 

striking and that the inspector's brother was an officer of the local UMW. 

The following ensued: 

1045 
JUDGE MOORE: And you're a non-union mine? 

WITNESS: We're non-union. We're not a UMW mine. 

I was the one that asked the question and as I understood the answer 

the second sentGnce was a correction of the first. It is certainly not 

enough to challenge the credibility of Mr. Mattingly. Whatever else 

the government may have established about the conditions at the mine it 

did not establish a roof co~trol violation and that is what the order 

charges. I find a violation has not been proved and I vacate the order. 

Citation No: 1023061 alleges a violation of 30 C.F.R. 77.202 for 

accumulations of float coal dust and coal fines in various areas of the 

tipple. The du3t standard for surface areas provides: 

"coal dust in the air of, or in, or on the surfaces 

of, structures, enclosures, or other fa~ilities shall 

not be allowed to exist or accumulate in dangerous 

amounts." 

The accumulations described by the inspector were certainly extensive 

enough to be considered "dangerous amounts". The accumulations consisted 

of float coal dust and coal fines. The inspector described coal fines as 

"ground-up coal dust that is too heavy to float on the air. (Tr. 51). 

While I can not accept the inspector's opinion that this mixture of 

unsuspended coal fines and float coal dust co~ld be ignited with a match 

and could burn as rapidly as gunpowder (black powder) it was nevertheless 

combustible, and a source of ignition in the form of a fire in a bu_cket 

was in the area. I find that there was a violation and that respondent 

was negligent. The hazard involved was serious but respondent exhibited 

good faith abatement. I agree with the recommendationG contained in the 

"Narrative Findings for a Special Assessment" (Exhibit P-2) and assess 

a penalty of $800. 

It is therefore ORDERED that respondent pay to MSHA, within 30 days, 

a civil penalty of $800. 

Charles C. Moore, Jr., 

Administrative Law Judge 

Distribution: By Certified Mail 

/db 

Phyllis Caldwell, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 F.O.B. 1961 Stout Street, Denver, 

co 80294 

Carl E. Kingston, Esq., 53 West Angelo, Selt Lake City, UT 84115 

1046 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

JEFFREY E. HASTINGS, 

333 W. COLFAX AVENUE". SUITE 400 

DENVER, COLO~ADO 80204 

JUN 8 1983 

) 

) 

) 

) 

) 

) 

) 

) 

) 

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) 

COMPLAINT OF DISCRIMINATION 

Complainant, 

DOCKET NO. WEST 82-198-DM 

v. 

MD 82-70 

COTTER CORPORATION, 

Respondent. 

~~~~~~~~~~~~~~~~~~~~~ 

Appearances: 

Mr. Earl D. Dungan, International Representative 

Oil, Chemical and Atomic Workers International Union 

425 East 10th Street 

Leadville, Colorado 80461 

For the Complainant 

Barry D. Lindgren, Esq. 

Mountain States Employers Council, Inc. 

1790 Logan Street, P.O. Box 539 

Denver, Colorado 80201 

For the Respondent 

Before: John A. Carlson, Judge 

DECISION 

This case arose upon a complaint of discriminatory discharge filed by 

the complainant with the Secretary of Labor under section 105(c)(2) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., (hereinafter "the Act"). · The Secretary declined to prosecute the complaint, and 

complainant, Jeffrey E. Hastings, then brought this proceeding directly 

before this Commission as permitted under section 105(c)(3) of the Act. 

104'1' 
Mr. Hastings alleles that he was discharged in violation of section 

lOS(c)(l) of the Act. / The essence of his complaint is that he was 

discharged after complaining of a job-related illness which he believed made 

it unsafe for him to bar down loos.e rock. He seeks reinstatement and back 

pay. 

A full hearing on the merits was held in Denver, Colorado, following 

which both parties submitted briefs. 

REVIEW AND DISCUSSION OF 

THE EVIDENCE 

I 

The undisputed evidence shows that complainant Hastings, a miner in 

respondent's underground uranium mine, was discharged by respondent at the 

end of his work shift on April 30, 1982. According to Hastings' testimony, 

the series of events leading to his discharge began on April 27, 1982, when 

he entered an area filled with blasting smoke and fumes out of concern for 

Richard Milligan, his shifter, who had walked into the area earlier and had 

not reappeared within two or three minutes. Hastings asserted that the smoke 

generated by the explosive used had a reputation for causing pneumonia-like 

lung symptoms. Milligan wore no respirator when he entered the smoke, 

according to Hastings, but Hastings did wear one. Hastings urged Milligan to 

come out, and Milligan obliged him. Hastings acknowledged that Milligan 

appeared "normal," but claimed that he, Hastings, was coughing. 

1/ Section lOS(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 mine.rs 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 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 ~r because 

such miner, representative of miners or applicant for employment has 

instituted or caused to be instituted any proceeding under or related to 

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

1048 
That night, according to Hastings, he experienced fever, nausea and 

coughing. The following day he reported to work with "more or less the 

effects of a cold." . He mentioned an earache and "a bad sore throat." Early 

in his shift on the morning of April 28, he testified, he complained to his 

mining partner, Herbert Rowe, of feeling ill, and Rowe advised him to go 

home. His sore throat was mild at that time, but he had developed extreme · 

dizziness and Rowe was afraid for their mutual safety if he tried to work in 

that condition. Rowe, Hastings testified, advised him that he was protected 

by the MSHA rules under such circumstances. 

Hastings further testified that he told his shifter, Milligan, when 

Milligan arrived at the work area, that he was too sick to work safely. He 

also testified that he mentioned to Milligan that his illness resulted from 

the smoke he breathed the day before. The conversation also touched on 

Hastings' accumulation of penalty points for prior absences. According to 

Hastings, he told Milligan he couldn't get "points for this one." Milligan, 

he asserted, disagreed, saying, "Don't bet on it." 

Hastings thereupon left for home. On the following day he saw a 

physician who made a diagnosis of "pharyngitis" and prescribed an antibiotic. 

He also did a throat culture which later proved negative for streptococcus. 

On April 29, Hastings called the guard shack to report that he would not 

report to work that day because of continuing illness. On April 30, 1982, he 

returned. At the end of his shift on that day he received a discharge 

notice. It was dated April 29, but the parties stipulate that it was 

effective at the end of the April 30 workday. Hastings had worked for Cotter 

since April 6, 1981. He protested the discharge to Marv Murray, the mine 

superintendent, contending, he testified, that the absence should have been 

excused. Murray, according to Hastings, was only interested in counting 

points and told him the discharge was automatic and that he could not make an 

exception, especially since others had been discharged on the same basis. 

Thereafter, Hastings testified, he filed a grievance through the union, 

and a complaint with MSHA. The record discloses that the grievance complaint 

was unsuccessful, and that MSHA refused to prosecute the complaint before 

this Commission. 

Herbert Rowe, Hastings' mining partner, testified in Hastings' behalf. 

His testimony on the events at the mine on April 27 and 28 generally 

supported that of Hastings. Rowe was unable, however, to give more than 

vague support to Hastings' testimony about the substance of Hastings' 

conversation with Milligan. Specifically, he was unable to say that 

Hastings ever mentioned more than that he was sick and had to go home. 

He could not substantiate, though he was present during the April 28 

conversation, that Hastings ever mentioned that the smoke incident on the 

April 27 was the cause of his illness. 

1048 
II 

Cotter based its defenses upon a straightforward denial that Hastings' 

discharge had any relationship to a safety complaint. According to Cotter, 

complainant's departure from work on April 28 was treated as an unexcused 

absence. Cotter's only witness, Duane Dughman, its vice president for 

administration, testified that he was familiar with the circumstances leading 

to Hastings' discharge, and made the final decision himself. It was based, 

he asserted, upon excessive absenteeism, and done in accordance with the 

company's published disciplinary policy which had been in effect since 

November of 1980. As described in Dughman's testimony, and set forth in 

respondent's exhibit 1, this policy provided for progressive discipline for 

"chargeable" absences. Absences for non-job-related illnesses or injuries 

were chargeable, the witness explained, hut each period of verified illness 

was considered a single incident, irrespective of the number of days 

involved. (Absences for death in the family, union business, weather, 

industrial injuries, etc., "non-chargeable.") Also, miners could, through 

good attendance, accumulate credits against chargeable absences. 

Sanctions, Dughman asserted, were applied progressively, connnencing with 

warning, advancing through suspensions, and ending with outright termination. 

The testimony and disciplinary rules also explained an elaborate penalty 

point system with specific numbers of points allowable to each offense. When 

points reached 100, discharge was automatic. These were computed over a six 

months "moving period" so that no miner accumulated points indefinitely; 

those over six months old were stricken from the work record. 

Dughman testified that in the six months preceding the April 28 

incident, Hastings had accrued six chargeable absences and one tardiness 

violation. Cotter then introduced, through Dughman, copies of disciplinary 

and suspension notices issued to Hastings reflecting those violations. None 

of these, according to the witness, were appealed or challenged by Hastings. 

He further testified that as of April 28, a further chargeable absence meant 

an automatic termination, which he approved. The discharge was taken through 

the grieyance procedure by the union. A copy of the arbitrator's decision 

finding a good cause discharge was introduced. (Respondent's exhibit 10). 

Likewise, a Colorado referee's decision granting only reduced unemployment 

benefits for complainant was introduced. (Respondent's exhibit 11.) The 

referee found insufficient proof that the discharge was for job-related 

illness. 

Dughman also testified that the operator had a well publicized policy 

requiring the filing of reports of job-related illness or injury on a 

readily available form. Hastings, he declared, had never filed one. He 

further testified that Hastings had not filed for reimbursement of the 

physician's fee for his examination and treatment on April 29. These 

services, he said, would have been eligible for workman's compensation 

paymez:it had they been for a job related illness or injury. Also, according 

to Dughman, Cotter had a temporary injury pay policy which would have paid 

benefits for on-the-job illness, but Hastings never made a request for 

payment. 

1050 
Finally, Dughman maintained that at the time he approved the discharge 

neither he nor any of the company officials with whom he conferred had any 

knowledge that Hastings' illness was, or was alleged to be, job-connected. 

Complainant disputed none of the fundamental facts revealed in Dughman's 

testimony. He conceded the previous absences, disciplinary notices and 

suspensions, and the adverse point totals. He did, however, resist any inference that his failure to file an accident report or apply for the various 

benefits for job-related illness showed that he did not believe his injury 

was caused by smoke inhalation. He took no such steps, he maintained, 

because he was discharged as soon as he returned to work on April 30, and had 

no opportunity for filings (Tr. 52). 

III 

Upon the record before me, I must conclude that complainant has failed 

to prove that respondent discharged him because he engaged in protected 

activity under the Act. It is now well settled that the Act extends 

protection to miners who refuse to work under conditions they believe to be 

unsafe or unhealthful, so long as that belief is reasonable and held in good 

faith. Secretary of Labor ex rel. Pasula v. Consolidation Coal Company, 2 

FMSHRC 2786 (1980), rev'd on other grounds; Consolidation Coal Company v. 

Marshall, 663 F. 2d 1211 (3rd Cir. 1981); Robinette v. United Castle Coal 

Company, 3 FMSHRC 803 (1981). 

The instant case, however, does not present the common situation where a 

miner refuses a work assignment because of what he perceives to be unsafe or 

unhealthful condition or practice in the mine. Here, in a sense, Mr. 

Hastings perceived his own physical condition to be the hazard. He contends 

that he is protected against discharge because his physical symptoms made it 

dangerous for him to bar down loose rock. Presumably, he would have undertaken the task as a matter of routine had he felt well. 

The discrimination provisions of the Act are silent, of course, upon the 

issue of illness or temporary physical impairment as an element in a miner's 

decision to refuse to work. Clearly, however, we need not linger over any 

notion that sickness or injury, without more, are encompassed within the 

protective intendments of the Congress. Nothing in the language of section 

105 suggests that the miner who is ill or otherwise unfit to perform the 

duties ordinarily associated with his position may present himself for work 

1051 
and then refuse assigned tasks with impugnity because his impairment renders 

their performance unsafe. '!:_! 

Complainant, indeed, appears to make no such contention. In his posttrial brief his able representative stresses the alleged occupational origin 

of Mr. Hastings' symptoms of April 28. The suggestion is that a refusal to 

work based u.pon a miner's safety concerns growing out of a partial incapacity 

because of a~ occupational illness must fall within the ambit of the Act's 

protection. / The argument is summarized at page five of the brief in 

this statement: 

The facts are that the complainant was discharged because he 

became ill as a direct result of being exposed to unhealthful 

conditions while removing a fellow workman from the contaminated 

area. 

Had it not been necessary for Hastings to retrieve his shifter from the 

smoke-filled blasting area, the argument goes, he would not have been too ill 

to safely bar down rock. Since Cotter is responsible for safety in the mine, 

the argument continues, the shifter's act in entering the shot area before 

the air had cleared - an act violative of company safety policy - was 

attributable to the company, and Hasting's rescue effort was to have been 

anticipated. Therefore, Hastings inability to work safely on April 28th took 

on the character of a protected activity. 

The legal question posed by the argument need not be decided here 

because complainant has failed to present evidence sufficient to establish 

the necessary factual predicate: that his symptoms on April 28, 1982 were 

caused by entering the shot area. I must reach that conclusion for several 

reasons. 

2/ The Commission, so far as I know, has never entertained the question. In 

Bryant v. Clinchfield Coal Company, 4 FMSHRC 1380 (1982), however, Judge 

Kennedy made what I consider to be a sound general statement of the law: 

Any claim of protected activity that is not grounded on 

an plleged violation of a health or safety standard or which 

does not result from some hazardous condition or practice existing in the mine environment for which an operator is responsible falls without the penumbra of the statute •••• 

I do not believe a miner can, consistent with the good 

faith, reasonable belief requirement, present himself as willing and able to work ••• and at the same time claim a protected 

right to refuse that work because of his impaired physical condition •••• 

]_/ In Eldridge v. Sunfire Coal Company, 5 FMSHRC 408 (1983), Judge Koutras 

held that a miner's refusal to work an extra shift out of fear of exhaustion 

and fatigue was a reasonable, good faith, safety-related act, entitling him 

to a claim of protected activity under the statute. See also Bryant v. 

Clinchfield Coal Company, supra, note 45 at 1422., in which it is postulated 

that a job-related injury or illness adversely affecting a miner's capacity 

to work safely "may well justify a refusal to work." 

1052 
First, there was no evidence that the shifter, Milligan, who entered the 

smoky area without a respirator, suffered any ill effects. Hastings and Rowe 

conceded that Milligan showed none after he emerged from the smoke. The 

undisputed record shows that he was at work on the following day. Hastings, 

on the other hand, wore a respirator (though he did question whether he had a 

tight fit). 

Second, if Hastings was convinced that ~is symptoms and subsequent 

absence from work were attributable to smoke exposure on the job, it is 

noteworthy that he neither filed an accident report with Cotter (Tr. 68), nor 

a workman's compensation claim for payment of his physician's fee (Tr. 87), 

nor a claim for temporary injury pay for the days he missed work, a benefit 

offered by Cotter. Such actions would have been consistent with belief in a 

job-related respiratory condition. Nothing in the record suggests that these 

steps could not have been taken after his discharge. 

Third, the objective medical data, to the extent such data were 

introduced at trial, failed to support Hastings' position. The physician's 

billing (exhibit C-1) shows the diagnosis as "pharyngitis/' a general term 

for irritation or inflammation of the pharynx. Hastings urges that since a 

throat culture was negative for streptococcal infection, his throat problem 

could not have been caused by a "germ," and was therefore the product of the 

smoke inhalation. The assertion is too broad. Nothing of record suggests 

that laboratory studies were done to rule out an infective process attributable to other microorganisms including, for example, the common cold virus 

or an influenza virus. Neither is there any indication that the treating 

physician ever departed from his highly generalized and undifferentiated 

initial diagnosis of pharyngitis. Had he ever concluded that complainant's 

condition was work-related, that opinion would likely have been made known at 

the hearing. 

Fourth, evidence that Hastings actually informed his shifter, Milligan, 

that he was not only ill, but suffering from a work-related illness, is at 

best weak and uncertain. Had Hastings believed on April 28th that his 

illness was job-related, it is likely that he would have stressed that belief 

to his supervisor. Complainant's witness Rowe testified at one point that 

Hastings' "total conversation" with shifter Milligan was that "he was sick 

and going home" (Tr. 19). Later, he testified that he "believed" safety was 

mentioned (Tr. 25). Then he summarized the Hastings-Milligan converstion this way: 

Basically, Mr. Hastings' told Mr. Milligan that he was not well. 

He ·was a hazard to himself anq to me; that he was going home. Mr. 

Milligan stated, "you will probably lose your job over this." He 

says, "I'm not telling you to go home and I'm not telling you to 

stay. You have to make the decision." [Tr. 25). 

When asked pointedly if Hastings told Milligan that his illness was caused by 

blasting smoke, he replied "I honestly don't remember" (Tr. 25). 

1053 
Hastings did testify that he informed Milligan, as his immediate supervisor, that he was ill because of the blasting smoke (Tr. 33, 105). The 

force of this testimony is diminished, however, by the fact that his recitals 

of the basis for his complaint made in the earlier stages of the case omit 

any mention of the smoke incident, or job-related illness generally. His 

original complaint filed with MSHA mentions only that he was ill with 

vertigo, earache, and a sore throat. His separate complaint before this 

Commission, filed three months later, relates the same symptoms with no 

reference to cause. Similarly, as brought out in cross examination, the 

interview statement to the MSHA investigator, which Hastings reviewed and 

edited, was silent on the smoke matter. He acknowledged that he responded to 

the investigator's question about the content of his conversation with 

Milligan with the statement, "Oh, yeah I told him I' was sick and that I had 

to get out." (Tr. 54, 57). Hastings explains this by asserting that he 

mentioned the smoke incident to the inve$tigator, but that in the recorded 

and transcribed interview the investigator asked no questions about it (Tr. 

54). He also spoke of "not introducing at that stage what happened on 4/27." 

(Emphasis- added.)(Tr. 57.) Concerning the lack of reference to the smoke 

~atter in his two complaints he testified:" ••• in these complaints I'm 

trying to cite the article under the Act that would cover such activity as 

being absent on 4/28 and 4/29/82" (Tr. 57). Despite these explanations, the 

reasonable inference is that there was, at the very least, a marked shift in 

emphasis between the time of discharge and the time of trial from the mere 

fact of illness to a theory of job-caused illness. 

Fifth, I note that in two adjudications prior to this one, complainant 

failed to convince the triers-of-fact that the illness occasioning his 

absence and consequent discharge was job-related. On August 13, 1982, a 

referee for the State of Colorado, ruling on an unemployment benefits claim, 

held that complainant had not established that his illness was caused "by 

conditions on his job." (Exhibit R-11.) Likewise, on September 15, 1982, 

the arbitrator who heard .Hastings' complaint under the labor agreement 

between Cotter and the Oil, Chemical and Atomic Workers Local No. 2-947 found 

that the evidence did not establish "an occupation-related illness." 

(Exhibit R-10 at 9.) These collateral determinations carry no great weight 

in this present case, but warrant mention in that the referee and arbitrator, 

confronted with the same issue as this judge, also found the miner's evidence 

insufficient. 

IV 

In summary, I am convinced that complainant was ill on April 27 and 

April 28, 1982, as he contends. I am further convinced that he told his 

immediate supervisor that he was too ill to work. I am not convinced, 

however, that complainant's evidence showed that his illness was caused by 

smoke inhalation. The previously listed weaknesses in complainant's proofs, 

considered singly, could perhaps be explained away; taken together, however, 

they effectively undercut the credibility of the claim. For the reasons 

discussed earlier, absent a job-related cause of his illness, Mr. Hastings 

can make no case that his refusal to work was reasonable, and therefore a 

protected activity. No $ensible reading of the Act or its legislative 

history permits an inference that its anti-discrimination provisions were 

intended to supplant the customary ways in which employers and employees 

settle questions concerning illness and sick leave policy where the illness 

is not work-related. These matters remain a matter of management discretion, 

as tempered by ~he collective bargaining process. 
There is a further difficulty with complainant's position. Section 

105(c) plainly requires that protected activity claims be founded upon a 

safety complaint made to the operator. !!:_/ Safety concerns held privately 

by a miner, in other words, can SGarcely furnish a discriminatory motive for 

discharge. Since I hold that an illness or injury, not acquired in a work 

situation, cannot qualify as a basis for safety-related discharge under the 

Act, it follows that a complaint by a miner o~ incapacitation due to such a 

condition cannot stand as a safety complaint, whether he speaks of it in 

terms of safety or not. 

The earlier discussion in this decision concerning Hastings' April 28th 

illness dealt with the dual questions of whether the miner's illness was in 

fact job-related, and whether at that time he believed it to be job-related. 

As noted there, I did not find persuasive proofs that he conveyed to 

Milligan, his supervisor, a belief that his illness was due to inhalation of 

blasting smoke. Those same reservations about the content of his dialogue 

with Milligan are relevant to the question of whether a complaint was 

registered. Since respondent failed to sustain his burden of demonstrating 

that a meaningful complaint was made, his claim of protected activity must 

fail on that separate ground, as well. Any colorable complaint arising from 

a claim of illness must include. an assertion or notice in some form that the 

illness was job-connected. 

v 

Based upon the findings that (1) complainant's illness was not shown to 

be job-related, and ( 2) that no safety related complaint co·gnizable under the 

Act was lodged with the operator, I conclude that Mr. Hastings was not 

discharged for engaging in protected activity • . QRDER 

Accordingly, this complaint of discrimination is ORDERED dismissed with 

prejudice. 

Law Judge 

Distribution: 

Mr. Earl D. Dungan, Representative 

International Representative, Oil, -chemical and Atomic Workers Int'l. Union 

425 East 10th Street, Leadville, Colorado 80461 

Barry D. Lindgren, Esq. 

Mountain States Employers Council, Inc. 

1790 Logan Street, P.O. Box 539, Denver, Colorado 80201 

4/ Taylor Adkins et al v. Deskins Branch Coal Company, 2 FMSHRC 2803 (1980) 

1055 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

JUN 9 1983 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, ) 

) 

v. ) 

) 

EL PASO ROCK QUARRIES, INC., ) 

) 

Respondent. ) 

~~~~~~~~~~~~~~~~~~~ 

Appearances: 

Barbara Heptig, Esq., Office of 

James E. White, Regional Solicitor 

United States Department of Labor 

Dallas, Texas 75202 

For the Petitioner 

Richard Mendoza, Esq. 

El Paso Rock Quarries 

El Paso, Texas 79925 

For the Respondent 

Before: Judge John J. Morris 

) 

• 

DECISION 

DOCKET NO. CENT 79-160-M 

• 

The Secretary of Labor, on behalf of the Mine Safety and Health 

Administration, (MSHA), charges respondent, El Paso Rock Quarries, Inc., 

with violating three safety regulations promulgated under the Federal Mine 

Safety and Health Act, 30 u.s.c. 801 ~seq. 

After notice to the parties a hearing on the merits was held in El 

Paso, Te~as on November 9, 1982. 

The parties did not file post trial briefs. 

Issues 

The issues are whether respondent violated the regulations and, if so, 

what penalties are appropriate. 

1056 
Citation 160837 

This citation alleges a violation of Title 30, Code of Federal 

Regulations, Section 56.3-50. !_; 

Petitioner's uncontroverted evidence establishes the following facts: 

Earl B. Diggs, an MSHA inspector experienced in mining, issued this 

citation when he learned that two miners were working on a pile of rocks some 

50 yards square (Tr. 7, 8, 10-12, 35, Exhibit P3). The men on the boulders 

lacked a sound footing while holding a 65 pound air drill (Tr. 10-11). The 

boulders ranged in size between two and a half feet to seven feet in diameter 

(Tr. 10-11). If the boulders shifted they could fall and crush the miners 

( Tr • 12 , 13) • 

One or two weeks later it was found the condition had been corrected. 

The boulders had been separated and blocked to prevent movement. Drilling of 

the boulders would take place on the ground (Tr. 13). 

The foregoing facts establish a violation of Section 56.3-50. The 

citation should be affirmed. 

Citation 160839 

This citation alleges a violation of Title 30, Code of Federal 

Regulations, Section 56.18-10. '!_! 

Petitioner's uncontroverted evidence establishes the following facts: 

Don McCoy, in charge of respondent's quarry, advised Inspector Diggs that 

at the time there were no supervisors trained in first aid (Tr. 14, Exhibit 

P4). Further, respondent's employees hadn't been offered first aid training 

(Tr. 14) • 

1/ The cited standard provides as follows: 

56.3-50 Mandatory. Material, other than hanging material, to be broken by 

secondary drilling and blasting, or by any other method shall be positioned or 

blocked to prevent hazardous movement before persons connnence breaking 

operations. Persons who perform those operations shall work from a location 

where, if movement of material occurs, those persons will not be endangered. 

2/ The cited standard provides as follows: 

56.18-10 Mandatory. Selected supervisors shall be trained in first aid. 

First aid training shall be made available to all interested employees. 

1057 
On a prior inspection MSHA had offered such training, at no cost, to 

respondent (Tr. 15). Forty miners were affected by this citation (Tr. 16). 

The foregoing facts establish a violation of Section 56.18-10. The 

citation should be affirmed. 

Citation 160840 

This citation alleges a violation of Title 30, Code of Federal 

Regulations, Section 56.5-3. 3; 

Petitioner's uncontroverted evidence establishes the following facts: 

Inspector Diggs observed dust around the collar of a drill hole. Two 

miners were drilling without water. Dust was flying (Tr. 16, 17, 18). 

"Collared" as used in the regulation means that when starting to dril~ 

water is added up to the steel. This causes the hole to harden and round out. 

(Tr. 17). 

The equipment available for dust control wasn't fit for use. Hoses in 

the water tank had been disconnected and there was no water in the tank (Tr. 

17). 

It is necessary to drill wet to keep down the dust. This prevents miners 

from being exposed to possible silicosis caused by exposure to silica dust 

(Tr. 1 7). 

There were no dust control measures at this site although there are three 

types of dust control measures ·available (Tr. 18). 

The foregoing facts establish a violation of the regulation. The 

citation should be affirmed. 

Civil Penalties 

Petitioner proposes the following civil penalties for the citations: 

Cit at ion 16.0837 

160839 

160840 

3/ The cited section provides as follows: 

$275 

445 

305 

56.5-3 Mandatory. Holes shall be collared and drilled wet, or other 

efficient dust control measures shall be used when drilling nonwater-soluble 

material. Efficient dust control measures shall be used when drilling 

water-soluble ·materials. 

1058 
The mandate to assess civil penalties is contained 1n Section llO(i) [now 

30 U.S.C. 820(i)] of the Act. It provides: 

(i) The Commission shall have authority to assess all civil 

penalties provided in this Act. In assessing civil monetary 

penalties, the Commission shall consider the operator's history 

of previous violations, the appropriateness of such penalty to 

the size of the business of the operator charged, whether the 

operator was negligent, the effect on the operator's ability 

to continue in business, the gravity of the violation, and the 

demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. In 

proposing civil penalties under this Act, the Secretary may rely 

upon a summary review of the information available to him and 

shall not be required to make findings of fact concerning the 

above factors. 

Concerning prior history: I find respondent has an extensive adverse 

history. The computer printout, admissible as a business as well as a public 

record, indicates respondent was assessed 326 violations as a result of 30 

inspections (Tr. 19-27, Exhibit P2). At the request of the Petitioner the 

Judge further took official notice of prior cases involving these parties. 

These cases were docketed as Denver 79-139-PM; Denver 79-140-PM; Denver 

79-176-PM. 

Concerning size: respondent is a large operator. This is indicated by 

the evidence that there were 174,470.4 annual man hours expended at this 

quarry (Answers to Interrogatory No. 4). 

Concerning negligence: These violative conditions should clearly have 

been known to the operator. 

Concerning the effect on operator's ability to continue 1n business: This 

is essentially an affirmative issue to be established by the operator. 

Buffalo Mining Co., 2 IBMA 226 (1973). 

Concerning gravity: The gravity is apparent and severe in two of these 

citations. The first aid training citation could, under some circumstances, 

by equally severe. 

Concerning good faith: The record establishes that respondent abated the 

violative conditions. 

After considering all of the statutory criteria I conclude that the 

penalties proposed by petitioner are appropriate. 

Based on the foregoing findings of fact and conclusions of law I enter 

the following: 

105!) 
ORDER 

1. Citations 160837, 160839, and 160840 are affirmed. 

2. The proposed civil penalties of $275, $445, and $305 are affirmed. 

3. Respondent is ordered to pay the sum of $1,025 within 40 days of the 

date of this order. 

Distribution: 

Barbara G. Heptig, Esq. 

Office of the Solicitor 

United States Department of Labor 

515 Griffin Square, Suite 501 

Dallas, Texas 75202 

Richard Mendoza, Esq. 

5995 Gateway West, Suite 242 

El Paso, Texas 79925 

1060 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE JUN 9 1983 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFEtY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ZEUS CORPORATION, 

Respondent 

SECRETARY OF LABOR, et al 

Petitioner 

v. 

AMISTAD FUEL CORPORATION, 

Respondent 

DECISION 

Civil Penalty Proceeding 

Docket No: CENT 81-248 

A/O No: 41-02876-03012 V 

Little Bull Creek Mine 

Civil Penalty Proceeding 

Docket No: CENT 81-252 

A/O No: 41-02876-03011 V 

Appearance: George Collins, Esq., Office of the Solicitor, U.S. 

Department of Labor, 555 Griffin Square Building, 

Dallas, TX 75202 

David M. Williams, Esq., P.O.B. 242, San Saba, TX 76877 

Before: Judge Moore 

At the hearing the parties agreed that under the Commission's 

National Gypsum decision, 3 FMSHRC 822 (1981) the two violations involved 

in the citations in these cases would not be considered significant and 

substantial. Consequently, the citations would not have triggered the 

special assessments procedure if they had been issued after that decision. 

The narr~tive statements accompanying the special assessments are 

not contained in the file but the attorneys, with the obvious agreement 

of the inspector explained. the situation. This was an experimental mine 

in west Texas and the company was unable to obtain the certification of 

electrical inspectors to make the examinations required by 30 C.F.R. 

77.502-2. The examinations were in fact made by competent electricians 

but none had yet met the definition of "qualified person" contained in 

30 C.F.R. 77.103. 

The special assessments were $1,000 for each violation. The parties 

proposed that I modify the citations to eliminate the significant and 

substantial findings, affirm the citations as modified and assess a 

penalty of $20 for each violation. In the interest of uniformity of 

1061 
treatment, inasmuch as that is the way the matter would be handled if 

the same violations were discovered today, I agreed to accept the proposal. 

The two citations are therefore modified to eliminate the significant 

and substantial findings and as modified they are affirmed. As to the 

civil penalty, I find there was no hazard, that the history of prior 

violations was small and that there was good faith abatement. In the 

circumstances I find no negligence and although the record does not 

contain the size of the company or operation, I do not believe that 

that criterion matters in the circumstances of this case. 

Respondents are accordingly ORDERED to pay a civil penalty to MSHA 

in the total sum of $40. The payment is to be made within 30 days. 

~ t !fl;~{},, Charles C. Moore, Jr., 

Administrative Law Judge 

Distribution: Certified Mail 

/db 

George Collins, Esq., Office of the Solicitor, U.S. Department 

of Labor, 555 Griffin Square Building, Dallas, TX 75202 

David M. Williams, Esq., P.O.B. 242, San Saba, TX 76877 

1062 
FEDERAL _MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

{703) 756-6210/11 /12 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATIVE (MSHA), 

Petitioner 

Docket No. LAKE 81-190-M 

A.O. No. 11-02051-05011-V 

v. Docket No. LAKE 82-65-M 

A.O. No. 11-02051-05014-A 

TAMMS CO, INC. , 

HAROLD SCHMARJE, 

Respondeμits 

Tammsco Company Mill 

DECISIONS 

Appearances: J. Philip Smith, Trial Attorney, U.S. Department of Labor, 

Arlington, Va., for the petitioner; Malachy J. Coghlan, Esquire, 

Chicago, _Illinois, for the respondents. 

Before: Judge Koutras 

Statement of the Proceedings 

These are consolidated civil penalty proceedings under sections llO(a) ' 

and llO(c) of the Federal Mine Safety and Health Act of 1977 ("the Act"), 

30 U.S.C. §§ 820(a) and 820(c). 

In Docket No. LAKE 81-190-M, Respondent Tammsco, Incorporated, the 

operator of the Tammsco Company Mill, a silica-producing plant located 

in Tamms, Alexander County, Illinois, is charged under section llO(a) 

of the Act with violating the mandatory safety standard under 30 CFR 

§ 57.5-5. 

On May 7, 1981, MSHA Inspector George LaLumondiere issued a section 

104(d)(l) Citation No. ·0501241 to Tammsco, citing an alleged violation 

of mandatory standard 30 CFR 57.5-5, and the condition or practice described 

on the face of the citation states as follows: 

The Ruff Buff bagging machine was not hooked 

into the dust collection system of the mill. 

The dust control plan submitted on 4-14-80 

states that all bag machines will have dust 

collectors as engineering co~trols to control 

silica dust. This bagger is in use and a 

pallet of Ruff Buff was partially loaded. 

This is an unwarrantable failure. 

1063 
In Docket No. LAKE 82-65-M, Respondent Harold Schmarje, the 

Tammsco Company plant manager, is charged under section llO(c) of 

the Act with knowingly authorizing, ordering, or carrying out the 

aforesaid violation as an agent of the corporate operator, Tammsco. 

A consolidated hearing was conducted in these proceedings in 

Chicago, Illinois, October 6-7, 1982, and the parties appeared and 

participated fully therein. By agreement of counsel, posthearing 

depositions of several additional witnesses who did not testify at 

the hearing were taken in Evansville, Indiana, November 3-4, 1982. 

The parties submitted posthearing briefs and proposed findings and 

conclusions, and all of the arguments presented have been considered by 

me in the course of these decisions. 

Issues 

1. Whether Respondent Tammsco, Inc., the corporate mine operator, 

committed a violation of 30 CFR § 57.5-5 under section llO(a) of the 

Act, and, if so, the appropriate civil penalty which should be assessed 

against said operator pursuant to section llO(i) of the Act. 

2. Whether Respondent Harold Schmarje, acting as an agent 

of the corporate mine operator, knowingly authorized, ordered, or 

carried out the aforesaid violation under section llO(c) of the Act, 

and, if so, the appropriate civil penalty which should be assessed against 

him individually pursuant to section llO(a) of the Act. 

3. Additional issues raised by the parties are identified and 

discussed in the course of these decisions. 

Applicable Statutory and Regulatory Provisions 

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

et~· 

2. Commission Rules, 29 CFR 2700.1 et ~· 

3. Sections llO(a) and.llO(c) of the Act. Section llO(a) provides 

for assessment of civil penalties against mine operators for violations 

of any mandatory safety or health standards, and section llO(c) provides as 

follows: 

Whenever a corporate operator violates a mandatory 

health or safety standard or knowingly violates or 

fails or refuses to comply with any order issued 

under this Act or any order incorporated in a final 

decision issued under this Act, except an order 

incorporated in a decision issued under subsection 

(a) or section 105(c), any director, officer, or 

agent of such corporation who knowingly authorized, 

ordered, or carried out such violation, failure, 

or refusal shall be subject to the same civil penalties, 

fines, and imprisonment that may be imposed upon a 

person under subsections (a) artd (d) (emphasis added). 

1064 
An "agent is defined in Section 3(e) of the Act (30 U.S.C. § 802(e)) 

to mean "any person charged with responsibility for the operation of 

all or part of a coal mine or other mine or the supervision of the miners 

in a coal mine or other mine." 

4. 30 CFR § 57.5-5 provides in pertinent part as follo~s: 

Control of employee exposure to harmful airborne 

contaminants shall be, insofar as feasible, by 

prevention of contamination, removal by exhaust 

ventilation, or by dilution with uncontaminated 

air. However, where accepted engineering control 

measures have not been developed or when necessary 

by the nature of work involved (for example, while 

establishing controls or occasional entry into 

hazardous atmospheres to perform maintenance or 

investigation), employees may work for reasonable 

periods of time in concentrations of airborne contaminants exceeding permissible levels if they are 

protected by appropriate respiratory protective 

equipment. 

Testimony and evidence adduced by the petitioner 

Max B. Slade, Acting Chief,Division of Health, Metal and Nonmetal 

Section, MSHA, Arlington, Virginia, testified as to his background and 

experience (exhibit P-1), and confirmed that he was familiar with the 

respondent's mining operation. He first became aware of silica dust 

problems at the plant in 1976, and he was concerned about the company's 

noncompliance record, as well as its advertising claims that its product 

was an an~rphous type silica which should be of no concern to MSHA 

as a health problem. Amorphous silica is not as harmful as crystalline 

silica. As a result of the company's claims, and since MSHA's analysis 

indicated that the silica was crystalline, Mr. Slade requested NIOSH 

to conduct a health hazard evaluation of the workers at the plant to 

determine· if the silica was in fact amorphous and whether it was harmful, 

and he did so by letter received by NIOSH on April 18, 1979 (exhibit 

P-3) (Tr. 20-28). 

In response to questions concerning exhibit P-2, a computer printout depicting the prior history of section 57.5-5 citations at the plant, 

Mr. Slade agreed that many of those listed are in fact one citation in 

which the abatement time had been extended (Tr. 30). In general, many 

of the citations address specific pieces of equipment or job descriptions 

of miners, and that the equipment or individual miner is subjected to 

dust exposure tests as required by Part 57 of the regulations. Dust samples 

obtained through these tests are submitted to MSHA's analytical lab in 

Denver, Colorado, and if the results show that an operator is out of 

compliance a citation will issue and the operator would be expected to 

bring the airborne contaminants within the allowable limit (Tr. 32). 

1065 
In response to a question as to what caused MSHA to initiate 

a NIOSH survey of the plant in question, Mr. Slade responded as 

follows (Tr. 33-34): 

THE WITNESS: The company had sent us numerous 

correspondence, pictures, microscopic analysis 

of their product, claimihg that it w~s amorphous 

silica and should not be regulated under the silica 

dust standard, that it should be regulated under 

the amorphous dust standard. Our individual 

laboratory showed that it was crystalline silica 

and we needed some cooperation from NIOSH.to 

verify this fact~ 

JUDGE KOUTRAS: Now, was this communication from 

the respondent, from the company in this case, 

in the context of defenses to each of these 

citations that were issued against the company, 

or is it in connection with some other general--

THE WITNESS: Usually some other general correspondence, 

just trying to make an agreement with us that we 

would not treat them as a crystalline silica operation 

but we would allow them a more liberal TLV, that 

we would allow them to have more dust contamination 

in the atmosphere than is allowed with crystalline 

silica. 

Cathy Morring, Industrial Hygienist, NIOSH, Morgantown, West Virginia, 

testified as to her background, experience, and expertise as reflected in 

the report which she co-authored, exhibit P-5, and she also confirmed that 

exhibit P-3 is a copy of the letter from Mr. Slade requesting NIOSH's 

technical assistance. She confirmed that NIOSH conducted a dust survey 

at the plant, and this included a "walk-through" survey in May 1979, and 

the company physician and union were contacted in connection with the 

survey. An "industrial hygiene medical survey" of the current and exemployees was conducted in July 1979, and in August 1979, the workers 

surveyed were notified of the results of the survey. In September 1979, 

the preliminary interim medical reports findings were published, and 

the final technical assistance report was presented to MSHA and the company 

in March 1980, (exhibit P-5, Tr. 37-41). Ms. Morring confirmed that 

she and Dr. Banks, whose name appears on the report, conducted the survey 

together and she co-authored it. Dr. Banks is no longer with NIOSH, and 

is in private medical practice in New Orleans (Tr. 42). She explained 

the survey procedure as follows (Tr. 45-46): 

THE WITNESS: The procedure that we go by, we 

receive a written request from MSHA to provide 

technical assistance, from there on it's our ballgame. We contacted the president of the company, 

1066 
the local union, the company physician, to let 

them know we were coming, that this is the type 

of info-rmation we wanted to look at, we would 

like to take a walk-through survey of the facility, 

we'd like to look at their medical records, their 

environmental sampling records, compliance type 

records, so we can get an idea of the history of 

the facility. From that determination we can 

plan our strategy as to how we should investigate 

the plant to find out if there was a potential 

health hazard existing in the facility, so that 

we come back in July to take environmental 

sampling to determine the exposures that the 

workers have at· that date and time. We also 

provided chest X-rays and under informed consent 

to all workers. We had a few refusals. And we also 

contacted ex-workers because of the seriousness 

of the disease in question. 

The information is then, all prior identifiers 

is taken out of this information and reported back 

to the company, to the union, to the regional OSHA 

and MSHA offices, and individual copies to people 

that participated in the surveys are given back 

their medical findings and referrals from our 

·physicians that say, "You need to seek further 

attention", or "from the findings we found there 

seems to be no problem." 

JUDGE KOUTRAS: And I take it the reconnnendations 

that are contained in this report at Page 9 are 

recommendations to the plant, to the company. Is 

there any followup done on this? 

THE WITNESS: We make our reconnnendations and at 

a later period of time the Division Director, 

Dr. Merchant of this facility, offered the assistance 

of our control technology group to assist these 

companies in improving their conditions. 

Ms. Morring testified as to some of her findings, as follows (Tr. 53-55): 

Q. Now, let me just ask you this question specifically 

before I a~k you to discuss the findings in the report. 

Did you find in your survey the silica at this particular 

plant to be of the amorphous or the crystalline type? 

A. It is 98 to 100 per cent crystalline structure. 

Q. Now, I would like you to at this time discuss very 

briefly your findings in that report and your conclusions? 

1067 
Q. Can you explain the difference between the 

two types of silica, what the effect of them is? 

A. Amorphous silica has no crystalline structure. 

It is considered to be less toxic and its degree 

· of toxicity is under question right now in the scientific 

field. Crystalline silica has crystalline structure. 

This particular product is microcrystalline, meaning 

that, where the name amorphous came from if you look 

at an electronmicrograph you will see an amorphous 

structure, a structure that has no definite size of 

shape; if you look closer its an amorphous conglomerate of 

crystals, so it's truly a microcrystalline quartz. 

JUDGE KOUTRAS: Now, from a layman's point of. view, 

the amorphous type is something that is not likely 

to adhere to--

THE WITNESS (interrupting): With silicosis the exact 

way it causes, silica causes the disease is still 

unknown, there are several theories on it. It is 

accepted fact that amorphous silica is not as toxic 

as crystalline silica and there have been suggestions 

in the literature that microcrystalline is more toxic 

than the crystalline structure. 

JUDGE KOUTRAS: So, between the two the amorpho~s 

is the lesser of two evils, if I could characterize 

them, take license with that type of characterization? 

THE WITNESS: Right. 

Q. Would it also be fair to say that amorphous is 

less harmful? 

A. Sarne thing, less harmful, less toxic. 

Q. And the micro, did I understand you to say that 

according to your survey this was rnicrocrystalline, 

which is even worse than crystalline by itself? 

A. That hasn't been proven yet. It is the suggestion 

in other studies that microcrystalline may be more 

fibrogenic than the regular crystalline. 

And, at Tr. 56-58; 59-60: 

A. Our first conclusion is that NIOSH considered 

the situation down at Tarnrnsco to be of imminent danger 

status, basing it upon the health hazard present, 

1068 
exposure to health hazard present can cause 

irreversible harm and can shorten life. We feel 

there's a very serious hazard. 

JUDGE KOUTRAS: O.K., as of the date of this? 

THE WITNESS: As of the date, based on our results 

of the day we were there, the 17 workers that we 

sampled were over-exposed to free silica according 

to the NIOSH recommended standards. Our standards 

are not the same as MSHA. · 

JUDGE KOUTRAS: All right, hold it now. Your 

recommended standard? 

THE WITNESS: We have a recommended standard of 50 

micrograms per cubic meter. 

JUDGE KOUTRAS: Fifty? 

THE WITNESS: Micrograms. To compare that with the 

NIOSH standard, if you're looking at 100 per cent 

quartz, our standard is essentially half of MSHA's 

enforceable standard. 

JUDGE KOUTRAS: And where is MSHA's enforceable 

standard found, do you know? 

THE WITNESS: It's confusion, it's a calculation, 

if you look on Page 4 --

MR. SMITH (interrupting): Well, that's the TLV 

we gave you, Your Honor. 

THE WITNESS: Right, the formulas used for MSHA. 

MR. SMITH: That's Petitioner's P-4, Your Honor. 

JUDGE KOUTRAS: All right? 

THE WITNESS: The bottom line to our study is that 

27 per cent of the current and ex-workers that we 

studied with people that worked greater than one year 

in this environment had radiologic evidence of, 

radiographic evidence of silicosis. That's seven 

people in 26 that we saw; three current workers and 

four ex-workers for the overall prevalence of 27 per 

cent. 

JUDGE KOUTRAS: All right, stop there just a second, 

if I may interrupt you. 

1069 

- - ---- ·-·----------------·--------. 
So, assuming that as of that study they had a 

work force of 26 people, three people still on the 

job had it? 

THE WITNESS: If they had a work force of 26 people, 

seven people. 

JUDGE KOUTRAS: I thought you said some of those were 

ex-workers. 

THE WITNESS: There were 15 current workers. 

JUDGE KOUTRAS: Now, does the study indicate whether 

or not, what the length of exposure, whether they 

had contact with other industries, other environments, 

et cetera, et cetera, is that all accounted for? 

THE WITNESS: That's all accounted for in here. We 

take a detailed work history to identify a possible 

silica exposure and we take radiographic evidence 

and pulmonary function studies, so·we were very good 

about that. 

We also found that one current worker and one ex-worker 

had pulmonary massive fibrosis which I'll let Dr. Richards 

explain further. It's complicated silicosis, is pnother 

term that is used for it, it's a more serious type of 

disease progressing where ultimately death is attributed 

to heart and respiratory failure. We feel it's a very 

serious hazard. 

* * * * * * * * * * * 

Q. Let me interrupt you right there, since His Honor 

brought up this point. Assuming that the product has 

not changed and they're still producing the same silica 

there at this plant that they were in 1979, is this in 

fact a harmful airborne contaminant? 

A. Yes, it can be with appropriate levels. 

* 

On cross-examination, Ms. Morring conceded that the report she 

prepared, exhibit P-5, containing a number 79-104107, and exhibit R-1, 

which is a draft sent to the company and the union for review and possible 

technical changes, and is numbered 79104, are different in that the latter 

does not contain an appendix which refers to dust control improvements 

through use of baggers with shrouds or hoods (Tr. 87). She conceded that 

the draft report with the appendix included was not submitted to the 

company for review (Tr. 88). 

1070 
Ms. Morring .testified that she was present at the plant during 

the sampling survey in question, but only for two shifts on July 23, 

over a 24-hour period, and that Dr. Banks stayed for the entire three 

days of July 24 through 26 (Tr. 90). She identified other persons who 

were present during the survey, and indicated that their names appear 

at page 12 of the report (Tr. 91). She confirmed that she has not 

returned to the plant since the survey (Tr. 92). 

In response to questions concerning exhibit R-2, an American 

Industrial Hygiene Association Journal, Vol. 42, dated January 1981, 

Ms. Morring confirmed that out of the 27 silica flour producers identified 

in Table No. 1 of that publication, two are located in Illinois (Tr. 100). 

She also confirmed that out of the 27 locations itemized in the report, 

she has surveyed only three, including the respondent's plant (Tr. 101), 

and she further confirmed that she would have no reason to know what, 

if any, dust control improvements or tests were made· since her survey 

of 1979, and stated that "I can only talk about what the conditions 

are now and were in 1979, and make judgments on that" (Tr. 110-111). 

She elaborated by stating as follows at Tr. 111-112: 

JUDGE KOUTRAS: Are you trying to tell me that 

on May 7, 1981, when the inspector went in there 

and saw the silica dust being admitted into the 

atmosphere from this bagging device that did not 

have a shroud on it, was as bad as it was in 1979 

when you were there? 

THE WITNESS: No, I am talking hypothetically as 

we were before about the fact that in 1979, if the 

situation existed today as it was in 1979 that the 

people around that environment would be over exposed. 

In response to further questions, Ms. Morring t'estified as follows, 

at Tr. 114-124: 

Q. One other question, his Honor mentioned to you 

in hypothetical about if you came upon a situation 

and the shroud, or hood as I think you refer to it, 

was not in place on the bagger machine and given 

the same conditions that you saw at the time you 

conducted your survey, would it be necessary to take 

a sample, let's say, on May 7, 1981, when this 

violation was issued, in order to show over-exposure 

of the employees who were working in that same area? 

A. Well, obviously, from our report you can look 

in the. bagging section and they were some of the highest 

over-exposed people in the whole facility so from 

that statement, also I do know that MSHA conducts a 

periodic sampling period several times a year and if 

the exposure -- hypothetically, if the exposure, if 

you are over-exposed prior to the date you are speaking 

1071 
of, if conditions are the same and no engineering 

controls have been implemented, then you would be 

over-exposed at that time as well with this bagging. 

Q. When you say over-exposed you are referring to 

the allowable TLV limits? 

A. Right. 

.. Q. Ms. Morring, you just mentioned controls and 

respirators. When you were at Tamms in July of '79 

how mariy different products did they, in fact, make, 

do you recall? 

A. No, I don't, I am not sure it is in here. They 

had several products and I don't believe it is in 

the report. 

Q. How much, if any, effort did you make to distinguish 

between a product such as rought buff on one end and 

a very fine product on the other end, did you take 

that into effect? 

A. Yes, we took both samples ourselves of some of those 

covered products and sent them to a laboratory for 

investigation and found out they were all the same quartz 

material. We did get a close breakdown on particle 

size ourselves. 

Q. Could it have been as many as six products that 

they made, seven? 

A. I have that brochure myself. 

Q. Then you are prepared to suggest.that in some of 

·these products as much as 90 per cent of it is under 

5 microns and some of these products it might·be three 

microns? 

A. Yes, that is possible. In an air-classifying system 

you are not going to get 100 per cent classification 

of 5 microns, nothing more and nothing less. You are 

always going to have--it is going to be the majority 

of the material. 

Q. Then what we are saying is that it is possible to 

have a product which could be--which could have a 

percentage diminimus, a very small percentage of 

respirable silica. If we take this kind of standard 

it is very easy to have and if we take even NIOSH's 

1072 
standard of 52--incidentally, are we taking 52 

standard then it is conceivable, is it not that a 

rough buff product would have virtually no respirable 

dust, certain rough buff products could have virtually 

no respirable dust, would you agree to that? 

A. No. No. 1, I have no--we did not sample the rough 

buff product ourselves. I have seen laboratory 

analysis on the product itself, and I think in any of 

these products because of the air classification system 

that it viewed that you are going to have it, just 

like a bell-shaped curve on normal distribution that 

most of the products are going to be as advertised 

as far as whatever the micron size is. You are going 

to have a percentage of below and a percentage that 

is above, as well. 

Q. Do you know what a classifier is, Mr. Morring? 

A. Air classifier? 

Q. Yes. 

A. Yes, it separates the particles by their organic 

size. 

Q. Is it possible that an air classifier, it can 

separate particles so there would be no respirable 

particles? Is it possible? 

A. I am not that familiar with the air classifier. 

Q. Let me ask you, you are talking about dust controls 

and you mention among'others, hoods and respirators. 

In your NIOSH report you mention, among others, dust 

collectors, vacuum cleaners, preventive maintainence, 

monitorizing dust levels, housekeeping, mass sconic spray, 

wall and floor enclosures and it seems to me that you 

didn't mention specifically a shroud in that report. Do 

you recall? 

A. We don't refer to it as a shroud, per se, we refer 

to it as a hood. 

Q. Are you prepared to say that if we took a shovel 

full of this silica dioxide from July of 1979 and put it 

in the bagger and put a sampler on it and anot.her identical 

bagger and we took a shovel full of this in May 1981 and 

put the same sampler on it, that we would come out with 

the same results? 

1073 
A. As far as I know. I think you are asking me, 

if the process hasn't changed, if the material 

·is the same? 

Q. All of these identical. 

A. As far as I know if these things have not changed, 

things that would affect the particle size and the 

product itself, yes, you would see the same thing. 

Q. That they would be the same, a year, two years 

later? 

A. Yes, I think so. I want to make one clarification 

on your last statement about engineering shroud, we 

don't say shroud, per se, but in our jargon we do. 

We talk about engineering controls, and one of the 

engineering controls is ventilation system, i.e., 

shrouds, hoods, ductwork, fans. 

* * * * * * * * * * * 

Q. One final question on rough buff sampling, the 

particular coarse product that we talked about 

classifying. I am handing you what purports to be a 

Department of Labor memorandum from a Mr. Hollenbeck--

I am sorry·, from a George Weems to a Mr. Hollenbeck, 

"subject, particle size distribution analysis of rough 

buff product at Tammsco", and ask you to direct your 

attention to these micron ranges. 

A. On this 6 per cent. 

Q.\ Right, what does that say? Does that say what 

they did, is they took this rough buff product and 

they put it through a 325 mesh and everything that was 

res1pirable stayed on top and only 6 per cent was under 

the screen? 

A. No. 

Q. It does not say that? 

A. It says they took this p~oduct and put it through 

minus 325 mesh screen, which is 44 microns, and 6 per 

cent of it passed thro"ugh that screen and 6 per cent of 

the bulk product is less than 44 microns. Then they 

took that material and put it through a culture counter 

and by optically sizing it they got this type of particle 

size range. 

1074 
THE WITNESS: No, 94 per cent. That is 98 per 

cent of the 6 per cent is what they consider 

respirable. 

MR. COGHLAN: So you did, in response to the 

Judge's question, indicate that the 94 per cent 

that stayed above the screen was not respirable? 

THE WITNESS: Into the lung. 

MR. COGHLAN: Well, was not respirable into the--

THE WITNESS: lt can still be respirable but not 

at that 44 micron. 

BY MR. SMITH: 

Q. But is it the type of respirable material that 

we are concerned about in this proce.eding? 

A. It is still toxic material, still silica. 

JUDGE KOUTRAS: Let me ask the question another 

way. Let's assume you have sampled the material and 

found that none of it sifted through and none of it 

was respirable according to your definition, would 

an operator be subject to a citation under this 

particular standard for failure to control airborne, 

harmful airborne contaminants? 

THE WITNESS: I can't answer that. 

BY MR. SMITH: 

Q. All right, I wanted to ask you this, what happens 

to the non-respirable dust after it gets on the floor 

under traffic? 

A. I mentioned that before, that it is dry and feet 

walking, machinery running over it, any type of action 

such as that activity, grinds the particles, changes 

the particle size and can--the main problem with dust 

being on the floor is that- as people move there are air 

currents that can become reentrained in the atmosphere. 

Q. Is it as that point no longer non-respirable? 

A. Yes, if the particle size is such. It changes 

the particle size, it may make it smaller, smaller 

particles get into the lungs. 

1075 
Q. Isn't that really the heart of the problem? 

A. Right, that is the problem. 

Q. And that is very typical at a bagger system if 

you don't have the proper controls on it? 

A. Sure, because there is someone standing there. 

In any plant. 

* * * * * * * * * * 

JUDGE KOUTRAS: What is rough buff? 

THE WITNESS: One of their products. 

JUDGE KOUTRAS: It is what? 

THE WITNESS: I assume it is an abrasive type of 

material. 

* 

JUDGE KOUTRAS: I take it that they mine silica and 

they process it and they produce five or six different 

products from it and rough buff is one of the products? 

JUDGE KOUTRAS: When you said you did not sample the 

rough buff machine, did you say that the rough buff 

was not sampled? 

THE WITNESS: In our study I don't know what the products 

were at our bagging operations that were bagged that day. 

JUDGE KOUTRAS: Let's assume that rough buff was not 

one of the products that was sampled during your survey. 

What effect would that failure to sample have on whether 

or not rough buff, of the type that this inspector cited 

in '81, how does that fit in? 

THE WITNESS: I think it makes sense to laymen and is 

scientifically sound as well, I know that interim samples 

periodically were taken as far as I know, other samples 

have been out of compliance in the plant almost consistently. 

I think there were a few cases where they were in compliance. 

The samples were taken on Day 1 and they were out of compliance, on Day 15 no samples were taken and the machine 

still operated, there was a visible cloud or puff of this 

type of airborne. On Day 30 samples were taken again and 

the situation is the same throughout and it is reasonable 

to assume that if they took a sample that day the same 

situation would be true. 

1076 

/ 
JUDGE KOUTRAS: So are you suggesting that if this 

particular manufacture, or this particular plant 

manufactures six products and that at some time during 

the compliance history of this plant MSHA samples 

all the products, and assuming no changes, that at 

some future date you can assume that that same product 

that is airborne would be as harmful as it was the 

first time it was subjected to a test? 

THE WITNESS: The conditions should not change, yes, 

what you.see that day is what you are going to.see 

the days around. 

JUDGE KOUTRAS: What if this particular manufacturer 

manufactures the same six products but only five are 

ever subjected, one is not sampled for some reason, 

can you come to the same conclusion with respect to 

the one product that has not been sampled, ever 

sampled? 

A. I think you have to use your judgment in that case 

and from what I am aware from this situation that there 

is evidence of airborne high concentrations, i.e., 

you can see a cloud visibly. Like this is the plant, 

it is one room and the conditions are pretty well even 

throughout, so you don't have enclosures around--like 

say, if you had an enclosure around the bagger would 

that be contained there. So that any type of--if that 

product was bagged that day and you saw the visible, 

physical signs of dust in the air, then I think it is a 

good assumption, yes, that the same problem exists and 

that people around that and through the building are 

being over exposed. It contributes to the overall dust 

load. 

JUDGE KOUTRAS: Do I get the impression that what NIOSH 

is attempting to achieve and what MSHA would like to 

achieve here is not so much that this one particular 

rough buff bagging machine be addressed but that the 

()Verall ventilation in this entire plant, so that would 

avoid all these problems, is that what they are trying 

to do? 

THE WITNESS: What NIOSH would like to see is the workers 

not be over exposed to silica dust. 

JUDGE KOUTRAS: In the entire plant? 

THE WITNESS: Right, and we are concerned about all those 

workers' health. 

1077 
JUDGE KOUTRAS: Well, in this case, let's assume 

that I come to the conclusion that this operator 

failed to comply with the standard by not achieving 

compliance at this rough buff bagging machine and I 

sustain the citation and the violation and fine him 

$400 for the violation, how does that cure your overall concern about the rest of the plant? 

A. As far as NIOSH is concerned it is until the 

levels of the overall plant are brought down to the 

limits that have been set by law or by NIOSH recommended 

standards we feel there still is a health hazard. We 

are hard nosed about that type of thing. 

Dr. Thomas B. Richards, Staff Physician, Clinical Investigation 

Branch, Division of Respiratory Disease Studies, NIOSH, Morgantown, West 

Virginia, testified as to his background and expertise. He identified 

a copy of the NIOSH survey report concerning the plant in question, 

exhibit P-5, and confirmed that he had read it thoroughly, and testified 

as to his ·conclusions concerning the findings made in that report 

(Tr. 142-150) . 

On cross-examination, Dr. Richards confirmed that he had never visited 

the plant in question, and he indicated that his testimony is based on 

.his reading of the report, as well as his experience and training, and 

"review of the literature" (Tr. 150). He also confirmed that he had done 

no actual personal work with silica (Tr. 151). 

In response to question concerning silicosis, Dr. Richards testified 

as follows (Tr. 152-155): . 

Q. Would you agree with this statement, the common 

denominator in all cases of silicosis is the inhalation 

of a high concentration of crystalline silica pf 

particles less than 10 microns in diameter are respirable, 

but the particles most likely to be deposited in the 

alveoli spaces in the lung which caused the disease, are 

only 1 to 3 microns in diameter. Would you agree with that 

statement? 

A. Let me rephrase the statement because it has multiple 

parts to it. The factors that would lead to silicosis, 

no. 1, the type of dust as I tried to explain. There 

are several different types of silica dust. No. 2 is 

the concentration of dust. No. 3 is the exposure of the 

individual and No. 4 is probably an individual factor 

because there are some discussion as to whether there 

are I guess you would call it like an egg-shell worker, 

a ~erson who has an anti-body reaction, whatever, and 

is much more sensitive to it than other people. In 

terms of what people can breathe in ~n the size of the 

particles, if it is somewhere in the 5 to 10 micron size, 

1078 
more likely or not those size particles will be 

blocked out by the nasal hairs or screened out somewhere .in the upper respiratory system. We are 

talking about particles that are getting down into 

the lungs, would be somewhere between 0 to 5 microns 

and the 5 micron size in terms of silica is probably 

the particle size that is causing the most damage 

for acute silica is a very small size. 

Q. Would you agree with the statement to the effect 

that if chronic, it might have no effect whatsoever 

on life expectancy, any different that a city dweller? 

A. Let me again divide this into categories. 

Q. Is there a way that could be answered yes or no? 

A. If you ask me to answer it yes or no I will have 

to lump everything together and I will say that silicosis 

will reduce your life by 6 to 11 years. If you want 

me to separate it out, separate out certain forms of 

chronic silicosis that don't seem to caus.e quite as 

much damage, as I said, there are several factors involved. 

One of which is an individual's response to it. Like 

anything, you may have some people who react more, some 

pedple who react less. 

Q. Have any of the tests that were done that are in 

your report there, have you ascertained whether or not 

any of these people had T.B.? 

A. I note there is a recommendation that they should 

do annual T.B. skin tests.· I am not sure, I can't 

remember whether they did T.B. Skin tests--

Q. (Interrupting) Doctor, were any of these men coughing 

blood, do you know? 

A. I don't know the answer to that. 

Q. Did any of these men lose any weight, do you know? 

A. Again, I don't know the answer to that. 

Alld, at pages Tr. 159-160: 

JUDGE KOUTRAS: Doctor, do you know what· this specific 

proceeding is about in terms of the citation that was 

served on the respondent Tammsco? 

1079 
THE WITNESS: Mr. Smith has explained a little bit 

about it but I don't pretend to know the whole 

JUDGE KOUTRAS: The operator in this case was cited 

for failure to provide the rough buff bagging machine 

with a dust collection system, to wit, some sort of a 

shroud or a hood that the government contends had 

been agreed to by this operator. And that is the 

nuts and the bolts of the citation. The standard 

cited says that a mine operator is required to control 

harmful, airborne contaminants insofar as feasible. 

By prevention of contamination and removal by exhaust 

ventilation or by dilutation. The government takes 

the position that this airborne contaminant, harmful 

airborne contaminant, rather could have been controlled 

or otherwise disposed of by the use of this device. 

Now, the study that was conducted by NIOSH, which is 

Exhibit P-5, was a study conducted of the dust 

exposure levels at that plant in 1979. This particular 

citation was issued in 1981. Now, absent any changes 

would the harmful effects of the airborne contaminants 

be any more or less in 1981 than they were in 1979 when 

the study was conducted? In other words, can I assume 

that once you have an airborne contaminant that is 

considered to be harmful to the types of tests, the cypes 

of analyses that are done in this NIOSH thing, does 

that mean that all things being equal that that is it, 

from then on that 15 years being equal that that is it, 

from then on that 15 years later MSHA can come back and 

say the mine operator is being out of compliance based 

on that particular study? 

THE WITNESS: The answer to that is yes, and that is 

why I tried to underline or emphasize the first recommendation of NIOSH that you must have engineering control, 

absent that engineering control the danger and in NIOSH's 

point of view we call it imminent danger. We may have 

a quibble there with MSHA as to why they downgraded this -

as to not really an imminent danger but if you are 

reducing the definition of imminent danger you cannot 

expect abatement before bodily harm would insue and if 

you are offering the way your control or abatement this 

respiratory program, I can guarantee you that the 

respiratory pr<?Jgram, given its fine particle size and 

problems people always have with the respiratory programs, 

that it just is not going to work. What we need to have 

is engineering control. Absent that engineering control 

that danger will go on and on and people are going to get 

sick. 

1080 
MSHA Inspector George Lalumondiere, testified as to his experience 

and background; and he confirmed that ,he has conducted numerous at 

respondent's plant, starting in late 1979, and up to a year ago. He 

confirmed that the respondent mines silica, and the product is used in 

the manufacture of paint (Tr. 161-164). There are approximately 17 to 22 

employees at the plant, and the plant produces approximately 16,000 to 

17,000 tons of product annually. He identified the President of the 

company as John Norton, and confirmed that respondent Harold Schmarje 

is the plant superintendent (Tr. 166). The plant operates on a five-day 

we~k, two shifts daily. 

Mr. Lalumondiere identified exhibit P-8 as a copy of the citation 

he issued in this case on May 7, 1981, including the modification and 

termination after abatement of the conditions cited (Tr. 168). He 

also identified exhibit P-9 as the respondent's dust control plan 

submitted to MSHA on April 14, 1980, and that is the plan referred to 

in his citation. He described the conditions cited, and stated the reason 

for issuing the citation, as follows (Tr. 168): 

A. The point that was in violation is that the 

ruff-buff bagging machine engineering controls 

were not being maintained on it and were not 

being utilized on it and the fact that it was tied 

in to the dust collection system to eliminate the 

contamination of the worker's atmosphere by 

removal of dust from the bagging operation. 

Mr. Lalumondiere confirmed that the specific dust control plan which 

was not followed is Item 4-E, which reads "A shroud will be installed or 

maintained at all bagging machines". He detailed the evolution of the 

respondent's dust control plan, and confirmed that it was submitted after 

the plant had been shut down for noncompliance with the dust standards 

on March 18, 1980, and confirmed further that the plan was modeled after 

a similar plan submitted by one of the respondent's competitors, Illinois 

Minerals Company. The plan was voluntary, and the respondent participated 

in its formulation, modeled after a copy of the plan for Illinois Minerals, 

and it was in fact the only plan accepted by MSHA in effect at the time 

he issued his citation of May 7, 1981 (Tr. 170-175). 

Mr. Lalumondiere confirmed that the plant was shut down as a result 

of certain Section 104(b) Orders on October 10, 1979, and these citations 

affected six occupations which were being performed within the mill, 

and without these occupations working, the mill could not operate and 

the respondent shut the entire operation down (Tr. 176). Subsequent 

modifications permitted the plant to be reopened and operated peri~dically 

until such time as the dust control plan was submitted on March 18, 1980, 

at which time the plant was again reopened (Tr. 178). 

Mr. Lalumondiere testified that his belief that Mr. Schmarje knew 

about the requirement that the dust shroud be in place on the Ruff-Buff 

1081 
bagger machine while it was in operation stems from the fact that he 

was aware of the fact that this was a condition for terminating the 

closure order of October 10, 1979, to permit work to continue on 

April 14, 1980, after the respondent agreed to follow the dust control 

plan of that date. Mr. Schmarje was served with copies of these orders 

and notices (Tr. 260-261). 

Mr. Lalumondiere stated that the bagger in question was originally 

installed sometime in early January 1981, but that it was actually 

received at the plant sometime in October 1979, but was left in the packing_ 

crate for some time. On numberous occasions subsequent to the installation 

of the bagger, he was at the plant on inspections and observed the shroud 

lying on the floor by the door. It was his unde~standing that this 

shroud lying on the floor by the door .:was an old. shroud which he believed 

w~s .. at one time installed on the old bagger, but sequently.removed. While it 

was supposed to be attached to the new bagger he never s~w it attached 

anytime prior to May 7, 1981. He confirmed that when he asked Mr. Schmarje 

why the shroud had not been attached to the bagger, Mr. Schmarje advised 

him that he had only planned to use the bagger for a short time in order 

to build up a stockpile, and saw no need in wasting time to attached the 

shroud (Tr. 262). 

Mr. Lalumondiere confirmed that when he issued the citation on 

May 7, 1981, Mr. Schmarje conceded that the dates shown on the bags of 

silica on the pallets found near the bagger were in fact the dates on 

which the product in question was bagged, and he also confirmed that at 

that time Mr. Schmarje admitted that the shroud was not in place on the 

bagger at the time the material was bagged (Tr. 263). 

Mr. Lalumondiere identified exhibits P-17 through P-19 as photographs 

of the bagging machine in question as it appeared after the shroud was 

installed and after the citation was abated (Tr. 266). He also identified 

exhibit R-6 as copies of notes which he made at the time he issued the 

citation in issue, and he read a notation from those notes as follows: 

"Bags on pallets for days, from 11/12, all the way up through 5/5/81. 

This would indicate that the bagger is used regularly, as the superintendent 

stated it has been, and is being used for stockpiling" (Tr. 293). He 

confirmed that these notations, made on his inspector's statement, reflect 

his views that the bagger was used and had been used to bag the material in 

question (Tr. 294). He confirmed that three of the seven bags which he 

observed on the pallet near the bagger were stamp-dated May 5, 1981 (Tr. 297). 

He also confirmed that he observed seven pallets, each with 50 bags of 

ruff-buff material stored on them, or a total of 350 bags (Tr. 298), 

and these pallets were located in the same room as the bagger, approximately 

20 to 25 feet away from the machine (Tr. 300-301). 

Mr. Lalumondiere confirmed that one of the pallets which he observed 

contained seven bags of ruff-buff material, and they were dated May 5, 1981 

(Tr. 304). After randomly checking the dates on the pallets which were 

fully loaded with 50 bags each, he determined that the dates stamped 

on the bags were 11/12 to 12/17/80, and 1/8, 3/27, and 8/12/81 (Tr. 305). 

1082 
He confirmed that he did remove a sample of ruf f-bugg from a bag · 

stored on the pallets, and while he believed it was sometime in August 1981, 

he could not recall the specific date which stamped on the bag from which. 

he removed the material (Tr. 306). 

Mr. LalulllDndiere confirmed that he personally never saw the bagger 

in question in operation, and that his conclusion that it was us·ed to 

bag the material which he found on the pallet near the machine came from 

Mr. Schmarje, and he also confirmed that he never sampled any of the ruff-buff 

material in question (Tr. 312-313). However, he did confirm that he did 

sample the material either on August 20 or 21, 1981 (Tr. 315). He also 

confirmed that Mr. Schmarje admitted to him that the bagger was used on 

the days indicated by the stamped dates on. the bags of material stored 

on the pallet near the machine, and that Mr. Schmarje also stated that 

it was his intent to continue using the bagger to bag material until he 

had a stockpile built up (Tr. 317). 

Max Slade, was recalled, and again confirmed that he accompanied 

Mr. Lalumondiere on his inspection tour on May 7, 1981, and he described 

the conditions which he observed while he was with the inspector in the 

plant (Tr. 323-325). He confirmed that the dust which he observed in 

the plant came from "general dust from the entire plant, from all three 

bagging machines and from the various leaks around the plant" (Tr. 326). 

He also confirmed that he had no way knowing with any certainty that the 

"tracks of dust" he observed on the plant floor was in fact silica dust 

from the bagging machine which was cited in this case (Tr. 326). Mr. Slade's 

explanation as to why the plant was out of compliance on the day the 

citation in this case issued is reflected in the following colloquy 

(Tr. 328-333): 

A. * * * We went on through the plant, observing 

the leaks, which were numerous. One leak in particular 

on the roof of the building was a pile of silica several 

feet high that was dribbling down over the building and 

through the cracks and just permeating through the entire 

building. Dust in the air was visible. This is sub 

micron-size particles. One report shows that the mediumsize particle is around five microns, which is of respirable 

size. This size particle is not visible to the naked eye, 

unless it is in extremely high concentrations. Any time 

you can see dust of this size, it is a scientific fact 

that there is a violation, if it is silica. 

JUDGE KOUTRAS: All right. Stop right there. Would you 

then suggest a mandatory safety standard, in Part 57, that 

says whenever an inspector can visibly see with the naked 

eye airborne dust, that he knows is silica, that there 

is ipso facto a violation of this standard? 

THE WITNESS: No, sir, because you would have to have a 

particle-size distribution before you could make that 

determination. 

1083 
JUDGE KOUTRAS: Is that not true on any given day 

at this plant? 

THE WITNESS: Yes. Well, no, sir, if it is good 

and clean, you cannot see the dust in the air. 

JUD~E KOUTRAS: No, what I am saying is: If you 

can see dust in the air, at any given time at the 

plant, you are saying that it is a known scientific 

fact that there has got to be a violation? 

THE WITNESS: That is right. 

JUDGE KOUTRAS: .Why not just say that in the standards, 

if one can just come to the conclusion that by visibly 

looking at it and seeing dust flying that that is a 

violation? 

THE WITNESS: Then we would have to have a standard for 

every mine and for every different size distribution. 

JUDGE KOUTRAS: No, no. The standard could say for 

this particular mine. For example, if you know that they 

are mining Product "A" at Plant "A".and the inspector goes 

in there and sees Product "A" flying through the air, then 

that is a violation for that plant? 

THE WITNESS: We would end up with 15,000 standards. We 

would have to have a different standard for each operation. 

JUDGE KOUTRAS: Do you mean for each product that is mined? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: There are 15,000 different types of products 

that are mined, in metal and nonmetal? 

THE WITNESS: Every silica plant has d.ifferent size distributions of the particles because they manufacture different 

types of material, different grades, proportionates. 

JUDGE KOUTRAS: So, in other words, if you have a plant 

that mines silica, not of the coarseness or the fineness 

or whatever the terms may be that is being mined at this 

plant, am I to assume that when you go to that plant 

and see it flying around, they may not be out of compliance. 

THE WITNESS: That is right. You would have to know the 

size distribution of the material, itself, before you 

could make that assumption. 

1084 
JUDGE KOUTRAS: If I were to go out there at the 

plant this afternoon, let us say, for a site visit, 

and I see silica dust floating all over the place and 

I am leaving my own tracks through the plant, as I 

walk to this bagging machine this afternoon, to look 

at it, can I assume that, since this particular plant 

mines the type of silica that MSHA asserts they mine, 

ipso facto, when I see it with my eye, that is a 

violation of the standard? 

THE WITNESS! Yes, sir. You could assume that. 

JUDGE KOUTRAS: Based on what? 

THE WITNESS: Based on the size of the material that 

they grind and bag in that operation. 

JUDGE KOUTRAS: Has what? Has already been tested? 

THE WITNESS: Has already been tested. 

JUDGE KOUTRAS: When? 

THE WITNESS: NIOSH tested it. We have tested it. 

They advertise it in their own literature as submicron 

size particles. This is the way it is adversited and 

sold. 

JUDGE KOUTRAS: But you can see that the inspector that 

issued this citation did not test it to support this 

particular violation, is that not so? 

THE WITNESS: He has cited it numerous times. He has 

tested it numerous times. We have taken a hundred and 

twenty-some airborne samples in this operation. 

JUDGE KOUTRAS: Of Ruff-Buff? 

THE WITNESS: No, of the dust in this plant, which is 

in the same room with the Ruff-Buff and which is in 

the same general area and breathed by the same employees. 

JUDGE KOUTRAS: Can I ask a question now, from a layman's 

point of view? Has the Ruff-Buff product, itself, the 

stuff that goes into that bag from that machine, ever 

been subjected to laboratory analysis? 

THE WITNESS: Yes, sir. It has been subjected to a 

size distribution. 

JUDGE KOUTRAS: When was that done? 

1085 
THE WITNESS: We have it in evidence. You have 

the analysis sheet marked as, I believe, p-6, 

in evidence. 

JUDGE KOUTRAS: Now, have the other products, that 

are produced at this plant--somebody mentioned something about a brochure--all of those products, 

individually, been subjected to laboratory analysis? 

THE WITNESS: We have evidence, in evidence here, the 

NIOSH report, that gives the size distribution of 

the airborne contaminants. 

JUDGE KOUTRAS: . So, in other words, what you are telling 

me is that the inspector goes out to the plant and, if 

he sees this very same bagging machine, with the shroud 

off, and sees dust flying all over the place and piled 

up there, he does not grab a handful of it and put it in a 

bag and label it and then--

MR. SMITH: He does not have to. 

JUDGE KOUTRAS (continuing) -- just a minute -- issues a 

citation, sends that bag off for analysis, gets the results 

back and then that will support, but that is not the 

procedure? Mr. Smith says he does not have to. Is that 

your understanding of how the inspector supportscitations 

at this operation for dust violations? 

THE WITNESS: In many cases, wherever possible, the inspector 

will take a sample to support the violation. In this case, 

there was no chance to take a sample. It is not needed 

in this case because all existing, outstanding citations 

in that very area are against the very people, the same 

people, that operate this Ruff-Buff machine. A sample 

was taken both before and after this May 7th date, all of 

which show noncompliance. 

JUDGE KOUTRAS: Were these outstanding citations against 

this very same machine or were they outstanding with 

respect to the people that work in the area which was 

sampled individually? 

THE WITNESS: Outstanding against the airborne contaminants 

in that area, of which this Ruff-Buff bagger is an integral 

part. Any dust emanating from that bagger will contribute 

to the overall dust load of the mill and, as such, is a 

harmful airborne contaminant. 

JUDGE KOUTRAS: What you are saying is that for the several 

months before this citation, there were some samples taken 

of the Social Security numbers and the job identification 

1086 
numbers of people that are in close proximity to 

this Ruff-Buff bagging machine? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Those samples came back and showed 

noncompliance. 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Citations issued? 

TE WITNESS: Yes, sir . 

. JUDGE KOUTRAS: Citations are not going to be abated 

until they do something to reduce the levels of 

exposure to those individuals to bring them into 

compliance, correct? 

THE WITNESS: That is right. 

JUDGE KOUTRAS: And that this Ruff-Buff machine citation 

is an integral part of that entire picture? 

THE W!TNESS: Yes, sir. 

With regard to Mr. Schmarje's prior knowledge that the Ruff-Buff 

machine was used to bag the materials found by Inspector Lalumondiere 

on the pallets in question, Mr. Slade confirmed that he heard Mr. Schmarje 

state that this was in fact the case, and that he also heard him state 

that the material was bagged without the shroud being in place because 

he wanted to build a stockpile so that the bagger could be moved to 

another location, and that he needed an additional few days to move the 

machine (Tr. 334). Mr. Slade also confirmed that the shroud he observed 

lying on the floor had obviously not been used since it was covered with 

dust and dirt, and in view of the fact that he also observed an accumulation 

of silica material under the machine it was obvious to him that the 

bagger had been used to bag material without any dust collection system 

attached to it (Tr. 335). 

Mr. Slade identified exhibits P-20 and P-21 as two proposed dust 

control plans for the plant in question, and the former is a compliance 

schedule covering five years, and the latter is a compliance plan spanning 

a period of ten years (Tr. 338-341). He conceded, however, that there 

is no specific regulatory requirement that a mine operator submit and 

adopt any specific dust control plan, or to seek MSHA's approval for such 

a plan (Tr. 353). He also confirmed that at no time did MSHA agree 

that any engineering controls, except for the ones set forth in the 

April 14, 1980 dust control proposal, would be acceptable (Tr. 355). 

Mr. Slade identified exhibit P-22 as a letter dated May 21, 1981 which he 

sent to Mr. Norton concerning the conditions observed during the inspection 

which led to the issuance of the citations in this case (Tr. 357). 

108'1 
On cross-examination, Mr. Slade identified exhibit R-7, which a 

letter dated July 10, 1981, from respondent's pr~sident, John Norton, 

explaining the. circumstances surrounding the issuance of the citation, 

and while the letter is addressed to Mr. Slade, he denied ever receiving 

it or seeing it prior to the hearing (Tr. 362). 

Mr. Slade confirmed that the two-spout bagger and the ruff-buff 

bagger are two separate machines and are not similar. He also confirmed that he observed the new ruff-buff bagger on May 7th, and also saw 

the shroud lying in the corner by a door leading to a parking lot, and 

the shroud was covered with dust. In view of the amount of dust on 

the shroud, Mr. Slade was of the opinion that it was on the floor more 

than a day or two prior to May 7th (Tr. 372). 

Mr. Slade stated that on May 7th he and Mr. Lalumondiere had a 

conversation concerning the partial pallet of ruff-buff material which 

was located near the machine. Mr. Slade observed seven bags on that 

pallet, and every bag which he could see was dated May 5th. He confirmed 

that no samples of the ruff-buff were taken, and no effort was made 

to record the dust levels on May 7th (Tr. 373). 

Respondent's testimony and evidence 

John Norton, confirmed that he is the owner and sole stockholder of 

Tammsco, Inc., and has owned the company since 1973. He agreed that a 

shroud is an accepted engineering control measure for a bagger, and he 

confirmed that a new bagger was purchased in late 1979, and installed 

sometime in 1980, and that a shroud was subsequently installed upon 

it (Tr. 396). He described other dust control measures that he has 

taken since July 1979, and these included the acquisition and remodification 

of dust collectors and the changing of circuits throughout the plant. 

He also confirmed that he has his own dust sampling devices which are 

used for monitoring purposes, but that he has contracted with several 

private companies to collect and analyze samples and to report to him 

in this regard, and some of these companies were among those recommended 

to him by MSHA. He confirmed that testing was conducted a week after· 

the citation in question was issued (Tr. 395-399). 

Mr. Norton denied that the present condition of his plant is as 

bad as MSHA says it was in the past, and in his opinion, the plant has 

made improvements and progress since 1979 to achieve compliance with 

the required dust requirements (Tr. 401). 

Harold Schmarje, confirmed that he is respondent's plant manager, 

was hired in that capacity on February 20 or 21, 1980, and that he has 

four and one half years' experience as a hard rock miner working in 

underground mines. He also confirmed that he has experience as a plant 

engineer dealing with dust control shrouds, including the redesign of 

such devices. He conceded that such shrouds are acceptable engineering 

dust control devices for baggers, and that a shroud was installed on 

the ruff-buff bagging machine at the time the machine was installed. In 

1088 
addition to the shrou~, he testified as to other engineering dust control 

measures which were taken to control the dust at the plant in question 

since he has been the manager. He also testified as to certain problems 

which he encountered in his attempts to control the dust, and the improvements and actions taken by him to insure compliance with MSHA's dust 

control requirements (Tr. 402-409). 

Mr. Schmarje testified that a day or two before the MSHA inspection 

in question the bagger had been run into and damaged, and he instructed 

that it be cleaned up and either put back into service or taken "off the 

line" (Tr. 410). He confirmed that on the day of the inspection he told 

the inspectors that the shroud had been in place, but that it had been 

damaged and the machine was not in service. He conceded that he also 

stated ·to the inspectors that-it was possible that the machine could 

have been used for a short period of time to remove the material that 

was in the bin, but that he did not know this was in fact the case. He 

denied ever telling anyone t.hat he knew the shroud was off the bagger 

and that he used it in order to continue production. He explained further 

as follows (Tr. 412-413): 

A. Well, what I did say is that, if the shroud 

were not on there and it had been run, explaining, 

you know, for the short period of time, "I doubt 

very much that it would contribute to any dust 

levels in the plant because that material is the 

heaviest material that we run." It is the residue, 

in other words. lt has already been run through 

~he system. lt has physically and purposely been 

air swept twice and the fine part~cles, as much as 

possible, have been taken out of there to recover. 

I think, at the time, that I remarked something like, "If there was something in the area of 

2 per cent of fine material left in there, I would 

doubt it very much and that would probably be 

adhered--" 

One of the problems that we have is that the 

particles have a tendency to develop a static charge 

and they have a tendency to stick together. One 

of our problems is trying to separate that. Now, 

we succeed in separating it when we put it through 

the air classifiers and such, but it will have a 

tendency to combine again afterwards. This is a 

problem they run into at the dispersion. 

At any rate, I made the comment that, "If 

there were any dust there, it would probably be so 

closely tied with the other materials that I doubt 

if it would be liberated at all." That was the 

gist of the conversation. 

1089 
Ref erring to the fact that the people ment!oned 

that I had said that we had run it without and 

that I intended to run the thing without, no way. 

I do not proceed that way. 

Q. My final question to you, Mr. Schmarje, is: 

From and after the installation of the shroud, 

whenever it was, January or February, when that 

machine went on line, to the time just at, or about, 

the 7th of May, to your knowledge, did you ever 

order that shroud off or, to your knowledge, did 

you ever run that Ruff-Buff bagger, knowing that 

the shroud was not on it? Yes or no? 

A. No, sir. I never have. It has been damaged 

a couple of times, slightly, and then put back into 

shape, but no, sir, I never ordered in that manner. 

On cross-examination, Mr. Schmarje confirmed that he had previously 

been i!1-terviewed by MSHA special investigator Dennis Haeuber and that he 

had received a copy of that interview. However, he insisted that his 

statements made to Mr. Haeu~were taken out of context and that is 

the reason why he refused to sign the statement (Tr. 141) •. He identified 

exhibit P-24 as a copy of the interview, and MSHA's counsel confirmed 

that the interview was not tape recorded or taken down by a shorthand 

reporter, but that Mr. Haeilierwrote down the questions as well as the 

responses made to those answers, and then had it transcribed and sent 

to Mr. Schmarje for his review and signature. Counsel explained that 

the normal procedure was to tap.e record such interviews, but that 

Mr. Schmarje refused to have this done (Tr. 422). Counsel also confirmed 

that such statements are not taken under oath since the investigator 

has no authority to administer such oaths (Tr. 422-423). 

Mr. Schmarje testified as to certain contradictory statements made 

in the interview and he explained some of the recorded answers given 

to Inspector Haeder (Tr. 435-443). He also explained some of his interview 

answers as follows (Tr. 451-465): 

THE WITNESS: "Do you have an explanation of why the 

Ruff-Buff machine was allowed to operate without a 

shroud in place?" 

Again, I would have qualified it, that I would 

not have allowed the machine to run without the 

shroud in place and, if it had been run, it would 

have been run only to empty out the material that 

was left in. 

JUDGE KOUTRAS: What was your response to that? 

1090 
I 

I 

THE WITNESS: It says, "When I saw the machine 

was ·in operation, I let it continue to operate, because I believe the dust levels are negligible. 

The time element left to produce the material was 

also negligible." 

JUDGE KOUTRAS: Now, when he asked you to explain 

why you allowed it to operate without a shroud and 

you responded, "When I saw that machine in operation", 

that leads me to believe that when you saw it in 

operation, it did not have the shroud on it, by 

your response. 

THE WITNESS: I did not see it in operation. I saw 

that the machine did not have the shroud on it. I 

told the men to make sure that thing is emptied out. 

Now, if I may go back, maybe I can simplify this and 

clear it up. 

That machine was in a position that was subject 

to being--what would I say? It was in an inconvenient 

area, because the forklifts were corning through there 

off~and-on, traveling through that particular area, when 

they would pick up the material from the neo-sil 

bagging area. 

I had slated to move that machine, also, to go 

and reconstruct the machine, itself, because it is 

now--it was a pressure flow type of bagger and we were 

experimenting with trying to go to an air flow type 

bagger. We had already slated to move the machine, 

to put it into a different position, for two reasons: 

To test if the air flow type of machine would work 

with that particular product and, if it would, perhaps 

we could use with finer products; and the other reason 

was to eliminate an elevator, which is one of the 

problems with regard to a dust source. Elevators are 

very difficult to seal up around bearings and such. 

That is the reason why it was slated to be moved. 

Now, the machine, itself, with regard to the 

question there-I would not have said that I allowed 

the machine to run without a shroud on it. I do not 

do things like that. The only reason that it--

During the period of tirne--in other words, if the 

shroud was damaged and it was off of there, if there 

was any product lef~ in that machine, it had to be 

emptied out. That is what I am trying to say. 

JUDGE KOUTRAS: And they would use it to get that 

material out? 

1091 
THE WITNESS: And they would have to use it to 

get that material out. 

Now, the only way you can get it out, other 

than putting it in a bag--and that is probably · 

where the seven bags came from. I do not know that 

as a fact. That may have been emptied out beforehand 

I do not know. 

But the only way to get it out of there, and 

the le&st dusty way to get it out of there, is to 

put it in a bag. Otherwise, you have to dump it 

out either into a vat or a bin or on the floor. And 

I would have qualified the statement and explained it 

thoroughly. 

* * * JUDGE KOUTRAS: Mr. Schmarje, I am having just 

a little trouble comprehending this. On May 7th the 

inspector comes in and gives you this citation, right? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Are you telling me that the shroud 

had been knocked off a couple of days before he got 

there on May 7th? 

THE WITNESS: The shroud was not actually knocked 

off. It had to have been reinoved, cut off of there. 

JUDGE KOUTRAS: With a blow torch? 

THE WITNESS: Yes, I would assume so. 

JUDGE KOUTRAS: From that very machine? 

THE WITNESS: From that machine, I would assume so. 

JUDGE KOUTRAS: Well, what is this accident we have 

all been hearing about? 

THE WITNESS: Well, the machine was in a bad position 

and, if they just bumped the shroud, it jams the 

scales and then the machine cannot be--

JUDGE KOUTRAS: So they have to take it off? 

THE WITNESS: If it is just a light bump, they 

can usually push it back in shape, so on and so forth. 

That is one of the reasons why we want.ed to move the 

darn thing, because it was in a bad position. Now, 

if they bump it real hard, they are going to jam the 

1092 
scales and bend them out of shape and it will not 

operate. Then they will have to take the shroud 

off and repair the machine, itself, and then they 

have to put the shroud back on. 

JUDGE KOUTRAS: On May 7th, when the inspector 

came in and found the shroud off the machine--

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS (continuing)--what explanation did 

you give him as to why it·was off the machine? 

THE WITNESS: I told him it had probably been bumped 

into. 

JUDGE KOUTRAS: Probably been bumped into. 

THE WITNESS: And they removed the--

JUDGE KOUTRAS: And they probably removed it. 

THE WITNESS: And the machine was--

JUDGE KOUTRAS: And they probably cut it off with 

a blow torch, and they probably laid it by the door. 

Is that what you told them? 

THE WITNESS: I did not say probably all--

JUDGE KOUTRAS: But would you not know, as plant 

superintendent, if this device had been knocked into 

and somebody took it iff and laid it aside? Why 

would you have to find out sometime later from your 

lawyer--

THE WITNESS: No, sir. I knew that it had been 

taken off. I saw that the machine was--Let me 

back up. On May 7th the inspectors came in. 

JUDGE KOUTRAS: Right. 

THE WITNESS: O.K. Now, it was approximately a day 

or two before that I had seen that the shroud was off 

the machine. 

JUDGE KOUTRAS: O.K., and laying there--

THE WITNESS: Right. So I assumed that the machine 

had been run into again and that they had removed 

the shroud. I told them, I said, "Get that thing 

cleaned down. Take it off the line and shut it down." 

That is it. 

1093 
JUDGE KOUTRAS: So two days before this inspection, 

you saw that contraption off the machine, laying 

down some place? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Your assumption was that the reason 

it was off and laying down was because somebody 

probably bumped into it--

THE WITNESS: That is right. 

JUDGE KOUTRAS (continuing)--and took it off to do 

something with it? 

THE WITNESS: Correct, for repair .. 

JUDGE KOUTRAS: You are the plant superintendent? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Why would you make those assumptions, 

without finding out what did happen to this thing and 

when it is going to be repaired, who did it, and when 

they are going to put it back? 

THE WITNESS: Unfortunately, I ordered that it be 

repaired and put back into condition. 

JUDGE KOUTRAS: Who did you tell that to? 

THE WITNESS: That I do not know. It may have been 

my assistant. It may have been one of the mechanics. 

Mr. Schmarje testified that the silica mined by his company and processed 

at the plant in question is 99 percent pure silica, but he denied that 

it was all respirable since it may contain other impurities. He conceded 

that the ruff-buff product in question was pure silica, and he also 

conceded that the original characterization of the silica mined by his company 

as "amorphous" was a misnomer, and that sometime after 1979, after subjecting 

the silica to high-powered microscopic testing, it was discovered that it 

was in fact composed of a micro-crystalline structure. He confirmed that the 

silica processed at his plant is mined from an underground incline mine located 

some six miles from the plant, and the silica is transported to the plant 

by truck (Tr. 268-470). The processed silica is used for a number of 

purposes, including paints, plastics, abrasion rubber, etc. (Tr. 471). 

Mr. Schmarje described the process followed in the production of the 

ruff-buff material in question, and he confirmed that neither his company nor 

MSHA have ever sampled the ruff-buff. He explained that the ruff-buff bagging 

1094 
machine has never operated over an eight-hour sustained period of time, 

and that since the machine is not operated continuously for sustained 

periods of time, any samples would be negligible, and any airborne 

contaminants coming from that machine would be minimal (Tr. 472). He also 

stated that any fine particle respirable dust that would be left in the 

ruff-buff product during the bagging process would not contribute to 

the overall plant dust level, because it would have been "air-swept" (Tr. 474). 

Since the ruff-buff is of a heavier particle size, he did not believe 

it was as damaging as the other silica dust processed at the plant (Tr. 474). 

When asked why MSHA would insist that he have a shroud on the ruff-buff 

machine if it is not harmful, Mr. Schmarje stated that his position was 

that since the dust control plan called for a dust control shroud on 

each machine in the plant, he would insist that it be placed on the ruff-buff 

bagger. He also alluded to the fact that the NIOSH study in question 

assumed that no matter where silica was present in his plant, it was a 

respirable health hazard. He agreed that if it can be established that 

ruff-buff is respirable, then it would be a hazard, and he further explained 

his answer as follows (Tr. 477): 

THE WITNESS: A standard is for an eight-hour period. 

It's time-weighted period, I understand, and it is 

10 milligrams per cubic meter on time-weighted. What 

I'm saying is that that machine is never operated 

for an eight-hour period and that the percentage of 

fine, respirable dust that would be in there would be 

so negligible with regard to any testing of such that 

it would not show up. It wouldn't even appear. 

JUDGE KOUTRAS: What standard do you believe MSHA 

is holding you to? 

THE WITNESS: They are holding me to the standard of 

maintaining a dust collection system on the bagger 

and it was in place. We complied with those standards, 

according to the April 14 dust control plan, which had 

subsequent plans submitted with regard to it. 

Mr. Schmarje confirmed that he was not with the inspectors when they 

found the partial pallet near the ruff~buff bagging machine, nor was he 

present when they sifted through the bags of material on the pallet. He 

conceded that the ruff-buff material in those bags was bagged by the 

machine in question, but he denied telling the inspectors that the material 

was bagged with the dust shroud off, that he knew it was off, and that 

he instructed the bagger operator to go ahead and bag the material anyway 

(Tr. 487). He stated that he explained to the inspectors that the bagger 

had apparently been damaged, and that when he discovered the shroud was 

off he instructed the operator to clean the machine out and to take out 

all of the ruff-buff material left in the machine storage bin. Since 

there were seven bags of material on the pallet, he had no way of knowing 

1090 
whether the material had been bagged with the shroud on or off (Tr. 489). 

He denied making any statements to the inspectors that the bags containing 

dates of November 12 and December 12, 1980, were bagged without the use 

of the dust shroud (Tr. 490). 

Mr. Schmarje confirmed that the bagging machine in question is not 

used on a regular basis, that the material bagged with that machine is 

minimal, and that it is used for the purpose of building up a warehouse 

stockpile. Once the inventory is reduced, the machine is again used to 

build up a stockpile (Tr. 491, 492-493). Mr. Schmarje conceded that the 

ruff-buff bagging machine was used to bag the materials which were stampdated 11/12/80, 12/12/80, 12/17/80, 1/8/81, 3/27/81, and 5/5/81, as noted 

by the inspector on exhibit P-15 (Tr. 494). He also agreed that the 

machine must have been installed at least as early as November 12, 1980 

(Tr. 494). 

Ernest Butler, testified that he is employed by the respondent as 

a maintenance man, and he confirmed that he is a welder and that his duties 

include the repair of the machines in the plant. He confirmed that the 

new ruff-buff bagging machine was acquired "somewhere around 1980" as a 

replacement for the old one. He stated that he installed the dust shroud 

on the new machine when that machine was installed, and that the shroud 

was the one which was previously on the old machine (Tr. 504). The 

installation was made by welding the shroud onto the machine, and he 

explained how this was done (Tr. 505-506). 

Mr. Butler stated that during the week of May 7, 1981, foreman Gene Pool 

told him that someone had called and requested that a shroud be installed 

on the ruff-buff bagger, and when he went to look for the shroud he 

found in "standing back towards the maintenance shop", and it did not 

have an accumulation of dust on it. Mr. Pool told him had someone had 

called him and Mr. Pool said "ernie, will you put that shroud back on" 

(Tr. 507). Mr. Butler then "went to repair the shroud so I could put it 

back on". During a conversation with Lee Kirby, another maintenance man, 

Mr. Kirby informed him that the shroud had been damaged when it was run 

into by a fork lift. Mr. Butler stated further that he believed the 

shroud had been damaged the day before he was told to reinstall it because 

he had previously seen it on the machine the day before when he left 

his work shift (Tr. 508). Mr. Butler described the damage, and the 

repairs which he made (Tr. 509). He identified exhibit R-9 as his daily 

worksheet, dated May 8, 1981, and there is a notation "worked on ruff-buff 

machine. Put hood back on" (Tr. 511). 

On cross-examination, Mr. Butler confirmed that he made the original 

installation of the shroud on the machine the same time the machine was 

installed, but he could not recall the precise dates (Tr. 512). He also 

confirmed that to his knowledge since the original installation of the 

shroud, it had never been off the machine except for the time he rewelded 

it back on on May 8, 1981 (Tr. 514), and had it been off any other times 

he would have known'about it because he is the only welder available 

for such work (Tr. 516). He also was of the opinion that the shroud could 

not have been off overnight because he walked by it "50 times a day" and 

he would have noticed it (Tr. 518). 

109{) 
In explaining the work he did in putting the shroud back on the 

machine on May. 18, 1981, Mr. Butler explained that after repairing the 

legs, he had to make additional repairs to facilitate hooking in the air 

pipe, and he explained that "The hoses for the air pipe were already 

there, but I had put it in with metal pipe, and whoever took it off had 

cut it off. Instead of unhanding it, they just cut the pipe out of the way." 

(Tr. 513). When asked to explain who did this work, Mr. Butler stated 

that he was told that the mechanic on the second shift cut the shroud 

off with a welding torch after it was damaged, and someone stacked in 

the corner, and he was instructed to repair it and reattach it. Mr. Butler 

also indicated that the mechanic who cut it off "can weld, but not very 

good" (Tr. 517). 

In response to further questions, Mr. Butler identified exhibits 17, 18, 

and 19 as photographs of the shroud in question, and he indicated that 

they must have been taken after he reattached the shroud (Tr. 520). He 

also indicated that he could not remember speaking with anyone about the 

shroud at the time the citation issued on May 7, 1981, including the 

inspector, and he confirmed that his work shift is from 7:00 a.m. to 

3:00 p.m. (Tr. 520). He identified Inspector Lalumondiere in the hearing 

room, acknowledged that he knew he was an inspector, but he denied that 

he knew that Mr. Lalumondiere was the person who issued the citation in 

question, and he denied that he had ever discussed the citation with him 

(Tr. 521).· In response to further questions as to how long the shroud 

may have been off the machine prior to May 8, 1981, Mr. Butler testified 

as follows (Tr. 522-523): 

Q. Does it surprise you to hear that Mr. Schmarje 

even said that thing was off on May 5? That's two 

days earlier, at the very least. 

(No response.) 

BY MR. SMITH: 

Q. Well, you don't have to answer the question. If 

you can't answer it, you don't have to. If I tell 

you that, in point of fact, that shroud was off on 

May 5, 1981, which is some three days before you 

repaired it or put it back on, as you put it, 

May 8, 1981, does that surprise you in anyway? 

A. Yes, it does. 

* * * * 

• Q. Mr. Butler, in other words, would it be your 

testimony that it could have been the 5th or the 6th--

is it consistent with your understanding of this that 

it could have been the 5th or the 6th that it was 

knocked off? 

A. It could have been. I go by that thing all the 

time. I don't stop and look at every machine to see 

if the shrouds are on them. 
Q. But you know that--

JUDGE KOUTRAS (Interrupting): Well, let's don't 

split hairs. Mr. Schmarje himself said it could 

have been a couple of days. The man is telling 

you, "In the normal course of business on any given 

day, I usually walk by there, and if it would 

have been off, I would have seen it." The question 

I would ask him, if it was off in November 1980, 

would you have known about it? 

THE WITNESS: Yes, sir. 

Paul Riston, testified that he has worked for the respondent for 

two years, and that his job is to "clean up". He could not recall any 

spcific dates, but confirmed that he told respondent's counsel about 

"the day" he ran into the ruff-buff machine with a fork lift.he was 

operating, that he didn't think he had done much damage, but "felt bad" 

about it and went home after the incident (Tr. 527). Mr. Riston reviewed 

his work "time card" shown to him by respondent's counsel, and he confirmed 

that it reflects that he worked eight hours on Monday and Tuesday, but 

that on Wednesday, the record only reflects 5.5 hours, and he believed 

that is the day he left work after hitting the machine and damaging the 

shroud (Tr. 529-530). He told no one about leaving work early, could 

not remember discussing the incident with any supervisor, and he did 

not know when management found out about it (Tr. 531). He also confirmed 

that he was afraid he would be fired (Tr. 531). 

George Storm, testified that he was employed by the respondent as a 

mill operator, and he confirmed that he has operated the old and new 

ruff-buff machines in question. He could not state when the new machine 

was acquired, but he confirmed' that he has used it over a period of six 

or eight months. He stated that he ran the machine no more than once 

a month, and that he has run the new one 10 or 15 times (Tr. 533). Prior 

to May 1981, he may have run it "more than five times", but always with 

the dust shroud in place and he never operated it without a shroud 

(Tr. 534). He identified a copy of exhibit R-11, as a statement in question 

and answer form which was sent to him for his signature after an interview 

with MSHA's investigator, and he stated that he never returned a signed 

statement (Tr. 536). Mr. Storm also identified the deceased mechanic 

who removed the damaged shroud as his brother Henry Storm, and confirmed 

that they both worked the second shift at the time in question (Tr. 536). 

Wayne Vik, testified that he is employed by the respondent as a 

mine foreman, and also serves as the Union labor representative. He 

confirmed that at one time the company had an old iegis Ruff-Buff bagging 

machine, and subsequently purchased a new one. He did not know when 

the new one was actually installed, but knew that it had been in the plant 

for a number of months (Tr. 538). He confirmed that during the period 

January to May of 1981, he had occasion to go through the plant on a daily 

basis, and that he never observed the bagger in question without the shroud 

on it (Tr. 539). As far as he knew, the shroud was always affixed to 

the bagger (Tr. 539). 

1098 
Mr. Vik testified as the labor representative, he was present 

during the time MSHA Special Investigator Dennis Haeuber interviewed 

employees George Storm and Otha McKee (Tr. 539). Mr. Vik stated that 

Mr. McKee told him that in response to one of the questions asked by 

Mr. Haeuber;, he (McKee) gave a "wrong answer" because he didn't fully 

understand the question. However, Mr. Vik could not say which particular 

question or answer confused Mr. McKee (Tr. 542). 

On cross-examination, Mr. Vik confirmed that in May 1981, he was 

the underground foreman, but spent the morning in the mill and the rest 

of the day in the mine, and he conceded that he was not always around 

the mill area (Tr. 547). Mr. Vik stated that he was present during the MSHA 

special investigator's interview with Mr. McKee, but he could not recall 

the date. MSHA's counsel quoted several "questions and answers" from a 

copy of that interview, and in respnnse to a question as to whether he 

recalled Mr. McKee's responses, Mr. Vik stated that he vaguely remembered 

them, but took no notes. He also stated that while he discussed the 

interview with Mr. McKee the next day, he could riot recall the specific 

question that Mr. McKee had in mind when he said he gave a "wrong answer" 

(Tr. 449-550). 

Inspector Lalumondiere was recalled by the Court, and he confirmed 

that exhibit P-15, a copy of his field notes made during the inspection 

in question, reflect the dates that he found on the bagged ruff-buff 

product which he found on the pallet by the machine. He confirmed further 

that Mr. Schmarje acknowledged that the dates shown on the baggs on 

question reflected the dates on which the materials were bagged by the 

machine. When asked if Mr. Schmarje was questioned as to whether the dust 

shroud was on or off the machine on each of the days.that the machine 

was used to bag the materials found on the pallet, he responded as 

follows (Tr. 576-577): 

JUDGE KOUTRAS: Did he tell you, also, that on the 

dates that those, reflected on those bags, that when 

that material was bagged, that the shroud was off it 

and he knew it was off it? Like, for example, that 

December 1980 date on there. 

THE WITNESS: On the dates that are in question here, 

I asked him if he had run this bagger on this date. 

He said, "Yes, I had." I asked him why isn't the 

shroud on. I said, "Had you had it on there?" We 

specifically asked him--he was asked, yes. 

JUDGE KOUTRAS: You asked him, "Did you use this 

machine to bag this material on December--on November 12, 

1980?" 

THE WITNESS: On these different dates--

1099 
JUDGE KOUTRAS (interrupting): He said, "Yes, the 

machine was used to bag it." 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: And then you asked him a follow-up 

question, "Was the shroud on the machine on these 

dates?" 

THE WITNES$: I don't remember exactly how I asked 

him the question. I asked him if he had put the 

shroud on when he bagged it, and he said that he had 

never put the shroud on. 

JUDGE KOUTRAS: He said he never put the shroud on 

when he bagged this material on those dates? 

THE WITNESS: That's right. 

JUDGE KOUTRAS: That's what he told you? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Why is it that in your notes anywherethis seems like a pretty incriminating statement on 

his part. Why wouldn't you put that in your field notes? 

THE WITNESS: Well, if I had to do it over, I'd put a 

lot more things in them, sir, but--

MR. SMITH (interrupting): It is in the inspector's 

statement. 

THE WITNESS: I believe I put it in the inspector's 

statement that he stated that he had used it. 

JUDGE KOUTRAS: Using it is one thing but using it 

without the bagger is another. 

THE WITNESS: Used it without the shroud. 

JUDGE KOUTRAS: On all those dates? 

THE WITNESS: Yes, sir. 

MR. SMITH: I think it's one of the respondent's 

exhibits. 

When asked about his "inspector's statement" (Exhibit R-7), Mr. Lalumondiere conceded that there is no documentation for the alleged 

"admission" by Mr. Schmarje that the bagging machine was operated without 

1100 
a dust shroud when each of the bags found on the pallet were bagged. 

Mr. Lalumondiere also conceded that his inspector's statement does not 

reflect any admission by Mr. Schmarje that he made such a statement 

(Tr. 578). However, he insisted that Mr. Schmarje did admit "that he 

never put the shroud on" (Tr. 579). 

Mr. Lalumondiere conceded that he was not in the plant on each 

of the days that he noted the machine was used to bag the ruff-buff, 

and he confirmed that the reason he did not issue any citations on 

the days he observed the dust shroud off the machine was that it was 

not in use on those days (Tr. 581). He also confirmed it was possible 

that the shroud was off the machine and lying on the floor because the 

machine was not being used. However, when he found the dates on the bags 

indicating that the mach~ne had been used, he questioned Mr. Schmarje's 

prior assertions that the machine had not been used (Tr .. 582). 

Mr. Lalumondiere also conceded that his "inspector's notes" do not 

reflect any notations concerning his observations that the shroud he 

observed was "gathering dust". He also confirmed that Mr. Schmarje said 

nothing to him about the shroud being bumped or damaged by a fork lift 

(Tr. 585), and in response to additional questions stated as follows 

(Tr. 588-589): 

JUDGE KOUTRAS: O.K. You walked in the mine and you 

saw the shroud over there on three or four different 

occasions. 

THE WITNESS: Right. 

JUDGE KOUTRAS: When I asked you why you didn't issue 

a citation and why you just simply brought it to 

Mr. Schmarje's attention, your response was, "I 

didn't issue a citation, Judge, because they weren't 

using the machine." 

THE WITNESS: Well, I think I better clarify that. 

I said, maybe you didn't understand me, that I wouldn't 

issue a citation because this was a new machine, it was 

installed, and according to what he told me, they were 

still in the process of getting things working to the 

way they should on there. 

JUDGE KOUTRAS: I see. 

THE WITNESS: Therefore, I would not issue a citation. 

When you· get into one where they operate it all the time 

and you go in there and there's evidence of it, then 

it's a different situation. 

JUDGE KOUTRAS: If you had not found those bags with 

those dates on them, you wouldn't have cited them? 

THE WITNESS: No, sir, I would have had no indication that 

he was using it. I would have no reason to believe he 

was using it. 

1101 
Depositions 

By agreement of the parties, and with leave of the Court, depositions 

of additional witnesses were taken by the parties and were submitted and 

accepted for the record. The deposition of former MSHA Special Investigator 

Dennis Haeuberwas taken by petitioner's counsel on November 3, 1983. 

Mr. Haeu~r confirmed that he is presently employed as Safety Director by 

Mulzer Crushed Stone Company, Tell City, Indiana. Included as exhibits to 

Mr. Haeuber's deposition are the following documents: 

1. Mr. Haeuber's investigative report dated July 11, 

1981, concerning his "Investigation of a Possible Knowing 

and Willful Violation at Tammsco Inc." 

2. A one page handwritten notation made by Mr. Haeuber 

during his investigation. 

3. A memorandum prepared by Mr. Haeuber, dated May 18, 

1981, concerning a conversation with Inspector Lalumondiere. 

4. A copy of an interview conducted by Mr. Haeuber with 

Harold Schmarje on June 17, 1981. 

5. A copy of an interview conducted by Mr. Haeuber with 

John Norton on June 17, 1981. 

6. Handwritten notations made by Mr. Haeuber during the 

aforementioned interviews, including a handwritten "addendum" 

memorandum prepared by Mr. Haeuber concerning the results of 

laboratory tests conducted on ruff-buff samples obtained by 

Inspector Lalumondiere on August 5, 1981. 

Mr. Haeuber confirmed that he conducted the special investigation 

in question and that all of the documents affixed to his deposition are 

part of his official report of investigation. He confirmed that on 

May 18, 1981, he and Inspector Lalumondiere had a conference concerning 

the inspection of May 7, 1981, and that Mr. Lalumondiere told him that 

Mr. Schmarje had admitted to him that he knew that the cited condition 

existed, but that he had to produce or stockpile the ruff-buff product. 

Mr. Haeuber also confirmed that after his interview with Mr. Schmarje 

on June 17, 1981, Mr. Schmarje stated that "it was quite obvious that 

the ruff-buff bagging machine had been in use without the shroud being 

in place. We would not deny that fact, but we believe that the ruff-buff 

product is heavy enough to stay out of suspension" (Tr. 8). Mr. Haeuber 

stated that he made a notation of that statement, and it is included as 

an exhibit to his deposition (.Tr. 10). 

Mr. Haeuber confirmed that he also interviewed Otha McKee and Lee Kirby, 

but that Mr. Norton was the only person who returned a statement to him, 

and Mr. Norton made some corrections and additions to his statement, and 

they are reflected by circles on the file copy. Mr. Haeuber also confirmed 

that at different times during his special investigation, both Mr. S~hmarje 

and Mr. Norton took the position that the plant dust control plan of 

1102 
April 14, 1980, was superseded by a revised plan which had been submitted 

to MSHA during a meeting with Congressman Paul Simon (Tr. 13). Mr. Haeuber 

stated further that to the best of his knowledge, everything that is 

contained in his report of investigation of July 11, 1981 is true. 

Mr. Haeuber stated that at no time during his interview with Mr. Schmarje 

did he in anyway indicate that the dust shroud was on the ruff-buff bagging 

machine everytime it was operating. ln fact, Mr. Haeuber stated that 

just the opposite is true, and that Mr. Schmarje admitted that the shroud 

was off the machine when it was operated, and he explained that it was 

off because the April 14, 1980 dust plan had been superceded, and that 

the shroud was not needed because the silica materials were coarse and 

would not be suspended in air (Tr. 16). Mr. Haeuber also stated that 

at no time during the interview did Mr. Schmarje inform him that the 

bagging machine had been run into by a forklife or that the shroud had 

been knocked off (Tr. 17, 23). 

With regard to the changes made by Mr. Norton on his interview statement, 

Mr. Haeuber stated that the date-stamp on the front of the statement reflects 

that it was received in his office on July 22, 1981 (Tr. 32). Mr. Norton's 

addition to his statement indicating that the shroud had been damaged was 

the first time anyone had mentioned this (Tr. 33). 

On cross-examination, Mr. Haeuber confirmed that from 1978 to 1981, he 

inspected the respondent's plant less than.ten times, and that Mr. Lalumondiere 

also inspected the plant during those years and that they would be on 

inspections together (Tr. 71). Mr. Haeuber also confirmed that he assumed 

the duties of a "special investigator" or "safety and health specialist" 

in July 1979 (Tr. 74), and that the only two silica mines he inspected 

were Tammsco and Illinois Mineral (Tr. 76). 

Mr. Haeuber explained the procedure for initiating a special 

investigation, and he confirmed that after Inspector Lalumondiere issued 

the section 104(d)(l) citation, they discussed the citation, and Mr. Haeuber 

then recommended an investigation by filling out the "willful violation review" 

form which is attached as·an exhibit to his deposition (Tr. 100). His 

investigation actually began on June 17, 1981 when he visited the plant to 

conduct his interviews, and on that day he met with Mr. Schmarje and 

Mr. Norton and explained the procedures he would follow in conducting his 

investigation (Tr. 106-108). 

Mr. Haeuber stated that after Mr. Norton's corrected statement reflecting 

his assertion that the machine in question had been damaged was received 

in his office, he spoke to no one about the statement and did not pursue the 

matter further. He stated that he assumed his complaints processor sent the 

statement to MSHA's office in Arlington, Virginia, and he explained why 

he did not pursue the matter further as follows (Tr. 136-138): 

Q.· So, it's your testimony that knowing this, of the 

damage of the shroud or at least the possibility of 

it, you discussed it with nobody? 

1103 
A. The report was already sent in. I just added 

an addendum. 

Q. Still, you discussed it with nobody? 

A. I didn't need to. 

Q. You don't think it has a bearing on these proceedings? 

A. It's an alleged. 

* * * * 

Q. Given this allegation, Mr. Haeuber, wouldn't you think 

it reasonable to pursue it? 

A. No, I do not. 

Q. Why not? Would you explain that? 

A. Because, for one thing, Mr. Schmarje already indicated 

that he knew the shroud was off and continued to let the 

machine operate. For the second thing, this thing .•• 

this correction that Mr. Norton made was only hearsay. I 

don't think it was pertinent to the investigation or to the 

case. And if it came out, let it come out in court. 

Q. So, it's your feeling that the allegation of damage 

to the shroud, at or about the time of the violation, is 

not pertinent to the case? 

.MR. SMITH: 

He didn't say that. He included it with his report 

for everybody to see. 

Q. In other words, you didn't investigate the possibility 

of this being a fact, is that right? 

A. All the facts that were obtained during the interviews 

indicated that there was no damage to the shroud. There 

was nothing mentioned about damage to the shroud. Not one 

word. 

Q. Did you investigate the possibility of the truth of that 

allegation? 

A. What do you mean? 

Q. Did you do anything about it once you knew it? 

A. No, I did not. 

1104 
MR. SMITH: 

Except, you included it as part of your report? 

A. As an addendum, ¥es. 

Q. What report did you include that in? 

A. It would have been sent to Arlington, Virginia, in the 

Final Report of the investigation into the 104(d)(l). 

Q. You included the shroud damage allegation in a report 

· to Arlington? 

A. I would have included the copy of the interview that 

Mr. Norton sent back to the Vincennes office. I would have 

sent that or had my Complaint Processor send that to Arlington 

to be included in their copy of the investigation. 

Q. And when would you have done that, Mr. Haeuber? 

A. I don't know when my Complaint Processor did it. 

Q. Would you have done it at or about the time you received 

the corrected statement? 

A. Sure, sure. I would say so. 

In response to further questions, Mr. Haeuber stated that on previous 

occasions when he was inspecting the plant for leaks in the duct work or 

emissions, he would take respirable silica dust samples. However, he 

denied that he ever directed anyone to take any dust samples after the 

citation was issued by Mr. Lalumondiere, but was aware of the fact that 

such samples were taken, and that he included those results as part of 

his report by the memorandum which is attached to his deposition (Tr. 174-175). 

In a separate continuation of Mr. Haeuber's depos~tion,.there is 

attached the following documents: 

1. List of exhibits. 

2. Mr. Haeuber's notes and interviews with Otha McKee and 

Lee Kirby. 

Respondent's Mill Operator, Otha McKee was interviewed by Inspector 

Haeuber on June 17, 1981, and a copy of that "question and answer" interview 

is a part of the record in this case, and it is also attached to Mr. McKee's 

deposition taken by petitioner's ca"unsel on November 3, 1982. Pertinent 

portions of that interview are as follows: 

1105 
Q. Who instructed you to operate the Rough Buff bagging machine? 

A. I don't remember. Several people were in the lunchroom before 

shift and in general conversation someone said we're running 

Rough Buff this evening. • 

Q. Were you aware that when this bagging machine is in operation, 

that a shroud and ductwork. shall be connected into the dust 

collecting system? 

A. No. 

Q. Did anyone tell you that the shroud was supposed to be in 

place when this bagging machine was in operation? 

A. No. 

Q. Are you familiar with the company dust control plan as submitted 

by Tammsco, Inc. to the Mine Safety and Health Administration? 

A. Yes. I wasn't really familiar with that particular item. 

Q. How long had you had experience operating the Rough Buff 

bagging machine before the citation of May 7, 1981? 

A. I don't think that the Rough Buff bagger was operated more 

than several times prior to that date. 

Q. Was the shroud ever in place when you were operating the Rough 

Buff machine? 

A. Yes, after the citation was issued on May 7, 1981. 

Q. Do you know what percent.silica the Rough Buff product 

contains? 

A. No. 

Q. Do you have any idea what airborne respirable silica bearing 

dust does to human lungs? 

A. Ye~.· 

Q. Do you believe that when you were operating the Rough Buff 

bagging machine without the benefit of a shroud and ductwork 

to the dust collector that when you were bagging the product, 

you were afforded all the protection available? 

A. Yes. 

Q. What type of protection were you afforded? 

110.6 
A. Respirators. 

Q. During normal bagging operations with the shroud in· place, 

is there a large quantity of dust present? 

A. No. 

Q. You've had the opportunity to operate the Rough Buff bagger 

with the shroud off and with it in place. Can you see any 

difference in the airborne dust? 

A. I can't see any great differenc.e. 

Q. Is there anything else that you can think of that we haven't 

discussed that might aid in the conducting of this investigation? 

A. This plant pays more attention to training to make employees 

aware of hazards of silica. 

In his deposition, Mr. McKee claimed he was confused about Mr. Haeuber's 

use of the term "shroud", and while he specifically rememberd the shroud 

being in place after the citation issued, he stated that he could not 

recall whether it was in place when he operated the machine, and when 

asked whether he specifically recalled operating the machine two days 

before the citation issued, he stated he could not recall (Tr. 11). He 

also confirmed that he did not return a signed copy of the statement 

because he believed that it was inaccurate (Tr. 12). 

Mr. McKee stated that he was not present during the inspection of 

May 7, 1981, and did not know when the violation was cited. He learned 

about the incident for the first time when he was interviewed by Mr. Haeuber, 

and he reiterated that he could not recall whether the shroud was on the 

machine on May 5, 1981 (Tr. 22). 

The deposition of respondent's mechanic Lee Kirby was taken by the 

petitioner on November 3, 1982. Mr. Kirby confirmed that he was previously 

interviewed by Inspector Haeuber on November 18, 1981, and identified his 

"question and answer" statement of that date, and a copy is attached 

to his deposition. Mr. Kirby could not recall what he did with the' statement 

sent to him by Mr. Haeuber for his signature, and Mr. Kirby was questioned 

by petitioner's counsel about the following questions and answers which 

appear on the statement in question: 

Q. As a maintenance man, have you had the opportunity to work 

on the shroud and ductwork on the Rough Buff bagging machine? 

When? 

A. Yes. 

Q. Prior to May 5, 1981, did you disconnect the collecting 

shroud and ductwork at the Rough Buff bagger? 

1107 

...... 
A. The Rough Buff bagger and Neosil bagger were swapped or 

changed, but the Rough Buff bagger was not put back into 

service then. 

Q. Who gave you orders to do this work? 

A. Harold Schmarje. 

Q. Who.do you take your orders or instructions from? 

A. Harold. 

Q~ Have you seen the Rough Buff bagger in operation in the 

last two months? 

A. Yes. 

Q. Would that have been before or after May 7, 1981, when. 

the citation was issued? 

A. It would have been after May 7, 1981, when the shroud 

was on. 

Q. Do you know the approximate date when the Neosil and Rough 

Buff baggers were swapped? 

A. Possibly the first of the year, maybe January. 

Q. Were you instructed to connect or to I.eave diseonnected 

.the shroud and ductwork of the Rough Buff bagger? 

A. I think it was on for a period before May 7, 1981, but 

then the shroud and ductwork were removed for some .reason and 

never replaced. 

Q. Who gave you these instruction? 

A. I would not know for sure because I was not involved in 

· taking it off. 

When asked whether he.remembered the questions and answers, Mr. Kirby 

replied "I don't remember. It's been so long, I actually don't" (Tr. 9). 

Mt. Kirb)7"stated that prior to May 7, 1981, the bagging machine in question 

was disconnected and "sitting in the corner" and the shroud was off, but 

he could not recall how long it was there (Tr. 10). The ruff-buff machine 

was eventually exchanged for a neosil bagger. 

Mr. Kirby confirmed that he d:i,d not know Inspector Lalumondiere. He 

also confirmed that prior to May 7, 1981, the ruff-buff machine was not 

connected, and the dust shroud was off the machine and he observed it 

lying in the corner (Tr. 11). He stated further that prior to May 7, 1981, 

1108 
he observed the shroud on the new ruff-buff bagging machine, but could 

not recall the date. He also stated that the shroud was knocked off 

the machine, and while he indicated that "it couldn't be over a day at 

the most, if at all", he stated that he simply couldn't remember (Tr. 13). 

When asked to resolve the apparent contradiction in his prior statement 

that the shroud was "removed", and his present statement that it was · 

"knocked off", he explained that the shroud had been hit and bent, and 

while he personally did not see the condition of the shroud Paul Riston 

told him that it had been hit. He also stated that he was not involved 

in the shroud repair work (Tr. 16). When asked whether he observed the 

ruff-buff bagger on a daily basis, Mr. Kirby responded that he "didn't 

pay any attention to it" (Tr. 17). He confirmed that he personally did 

not observe the shroud, and was simply told that it was knocked off (Tr. 18). 

Mr. Kirby stated that at some point in time a new or different ruff-buff 

bagger was put into production and that he and someone else installed a 

shroud on it as soon as it was put into production. Subsequently, when 

the ruff-buff bagger was exchanged for the neosil bagger, the machine and 

the shroud were disconnected and were placed "over by the door in the corner". 

The ruff-buff bagger was again moved back into production, and he and 

Henry Storm put the shroud back on, and the machine continued to operate 

with the shroud attached. He next worked on the ruff-buff shroud when 

he and Ernie Butler put the shroud back on after Mr. Riston told him that 

it had been ~ocked loose (Tr. 19-21). In summary, he stated that there 

were two occasions when he and Ernie Butler put the ruff-buff bagger 

shroud on, and one occasion when he and Henry Storm put it back on. In 

the meantime, the shroud and the bagger were "sitting over in the corner" 

(Tr. 22). 

Mr. Kirby stated that he did not· know whether the shroud was on 

or off the machine when it was operated by Mr. McKee on May 5, 1981, and 

he confirmed that he could not personally state whether or not the 

shroud was on the machine everytime it was used prior to the time of the 

inspection (Tr. 24). 

Neil Handley, employed at MSHA's assessment office in Wisconsin, 

was deposed by respondent's counsel on November 4, 1982. In reference 

to a telephone conference held on July 21, 1.981, with regard to the 

citations in question, he stated that he could not recall a conversation 

with Mr. Schmarje on that day, but confirmed that he has had a number 

of conversations with Mr. Schmarje in the past. Mr. Handley confirmed 

that he spoke with MSHA Inspector Roesler about the citations sometime 

in July 1981, and Mr. Roesler confirmed that the dust shroud was off the 

ruff-buff machine at the time of the inspection in question (Tr. 6). 

Mr. Handley denied that he ever spoke with Mr. Slade or with Mr. Petrie, 

and he identified his "conference worksheet", a copy of which is attached 

to his deposition. He confirmed several notations he made on this document, 

and the notations reflect that Mr. Handley "talked to Ray Roesler and 

Dennis Haeuber. Roesler says that during the inspection Mr. Schmarje 

admitted he knew this shroud was not in place. Dennie Haeuber indicates 

that during his special investigation similar information was developed" 

(Deposition Tr. 15-17; exhibit 1). Mr. Handley's notations also include 

a statement "talked to Mr. Schmarje and informed him no adjustment would 

be made in the proposed assessment". 

1109 
James Petrie, MSHA Industrial Hygienist, Arlington, Virginia, was 

deposed by respondent's counsel on November 4, 1982. He was shown copies 

of exhibits P~20, P-21, and P-22, which are copies of respondent's dust 

plan and an exchange of correspondence between respondent and MSHA, and 

he denied ever seeing exhibits P-20 and P-22 prior to November 4, 1982, 

and he stated that the first time he saw exhibit P-21 was when MSHA's 

counsel Smith showed to him on October 29, 1982. 

The deposition of Dr. Aurel Goodwin, MSHA's Deputy Administrator 

for Metal and Nonmetal Mine Safety and Health, Arlington, Virginia, was 

taken by respondents' counsel on November 4, 1982, and it is a matter 

of record in this case. Dr. Goodwin was asked to identify a number of 

documents which are labeled RD-1 through RD-22, they are included as 

exhibits to his deposition, and some of them are copies of exhibits made 

a part of the record during the hearing in this case. 

Discussion 

Background and history concerning respondent's silica dust problems. 

TAMMSCO, INC., the corporate respondent in this case, is an Illinois 

Corporation engaged in the processing and sale in interstate commerce 

of various grades of silica products. The company Mill is a silica-producing 

plant, operated since 1973 by the Corporation, and Mr. John Norton is 

president and sole stockholder. Respondent Harold Schmarje has been plant 

manager since approximately February of 1980, and during the material times 

involved in this case in 1981, he supervised a work force of approximately 

17 to 22 miners. In 1981, approximately 16,000 to 17,000 tons of silica 

was produced by the plant, utilizing some 45,000 manhours, and the plant 

is usually operated two shifts per day, five days a week. The primary 

use of the silica product is for the processing of paints, and the material 

involved in the instant proceeding is "ruff-buff", and respondent asserts 

that it is the "coarsest product manufactured by the company". 

The silica bearing ore is extracted from underground mines located 

several miles from the plant and mill site and it is transported there 

by truck. At the mill, the ore is crushed by means of a pulverizer, and 

the crushed ore is conveyed to a kiln dryer where it is heated, and then 

through a series of pebble mills for fine grinding. From these mills, 

the finely ground material is conveyed or "air swept" through air classifiers 

where it is separated by specification into various product grades. The 

various grades of materials are then conveyed to large storage bins by 

bucket elevators, and then to large cone shaped hoppers located above, and 

attached to, three bagging machines or "bagging stations" for packaging. 

After packaging or "bagging" at the "bagging stations", the material 

is placed on pallets and then transported by forklift truck to the warehouse 

for storage to await sale and shipment by rail or truck to customers. 

At the time the citation issued on May 7, 1981, there were three 

bagging stations in the mill building: dual spout, neosil, and ruff-buff. 

The mill itself is a building of about 100,000 square feet, and it is 

separate and distinct from the crusher building and the warehouse, which 

1110 
is as large and an extension of the mill facility. The ruff-buff bagging 

machine in question has been described as air powered and equipped with 

a small plastic nozzle, over which the bag is fitted. Behind the nozzle 

is a scale which "trips" the machine off at the desired weight, normally 

fifty pounds. The bagger is designed to be equipped with a hood or shroud 

device which is connected to a central dust collections system. The 

shroud acts as a vacuum to collect fugitive dust which not only protects 

the worker, but preserves the product. Photographs of the machine are 

part of the record here, exhibit P-17 through P-19. 

The record in this case reflects that MSHA's interest in respondent's 

silica producing plant began sometime in 1973 when it inspected the facility, 

began sampling the silica dust, and as a result of those tests, began 

issuing notices, citations, and orders for noncompliance with the requirements 

of the mandatory dust standards found at 30 CFR 57.5-1 and 57.5-5. According 

to the testimony of Max Slade, he first became aware of the silica dust 

problems at the plant in 1976, and he was concerned about the respondent's 

poor dust compliance record, as well as its advertising claims that its 

product was an amorphous type silica and not as harmful as the crystalline 

type silica. Since MSHA's laboratory analysis reflected that it was the 

more harmful type (crystalline), MSHA requested that the National Institute 

for Occupational Safety and Health (NIOSH) conduct an environmental and 

medical survey study of current and former employees of the plant to 

determine if workers were currently being exposed to hazardous levels 

of silica dust and to determine the prevalence of silicosis among current 

and former workers. That study was conducted on July 23, 25, and 26, 1979, 

and the results are part of the record in this case (Exhibit P-5). 

Following the NIOSH study, respondent's plant was effectively shut 

down by MSHA on October 10, 1979, through the issuance of section 104(b) 

withdrawal orders because of the respondent's failure to comply with a 

number of outstanding dust violations which had previously been issued 

during February, ~eptember, and November 1979. The citations were issued 

because six of the occupations tested at the plant were found to be out 

of compliance with the applicable dust standards, and without those six 

occupations working, the plant could not operate. Exhibit P-2 is a six-page 

table listing the notices, citations, and orders served on the respondent 

for violations of section 57.5-1 and 57.5-5 from 1974 to May 7, 1981. 

MSHA's closing of the plant in October 1979, resulted in a series of 

meetings and exchanges of connnunications and correspondence between the 

respondent, one Congressman, MSHA's local and National enforcement and 

staff person~el, MSHA's legal counsel, respondent's legal counsel, and 

officials of the Union representing the plant employees. My personal 

observation, after reviewing and wading through the voluminous record in 

this case, is that this flurry of activity came about because: (1) NIOSH's 

characterization of the silica dust problems at the plant as "an innninent 

danger" caught MSHA's attention, and MSHA wished to insure compliance 

with the applicable dust standards; (2) the plant closing caught respondent's 

attention, and respondent was seeking a way to stay in operation while 

111.1 
still addressing the dust problems; (3) the Union wanted to insure continued 

operation of the plant and wished to avoid any permanent shut down which 

would result in loss of employment; (4) legal counsel on both sides were 

attempting to address the problem, while at the same time advising their 

clients as to various enforcement and compliance possibilities, and (5) 

the Congressman's office wished to resolve the issues while addressing 

all -.of these concerns. 

In order to comprehend the scope and magnitude of MSHA's enforcement 

efforts at the plant in question, I deem it appropriate to review the 

record of the citations, notices, orders, and other enforcement actions 

taken by MSHA's inspection force prior to May 7, 1981, the date on which 

the citations in the instant proceedings were issued. In this regard, 

included among exhibits P-16 in these proceedings are copies of four 

citations issued by Inspector Jack Lester on March 20, 1979, each of which 

charge a violation of mandatory standard section 57.5-5, because the 

inspector believed that the two-spout bagger, the clean-up man, the crusher 

operator, and the mill operator were all out of compliance with the 

permissible dust exposure levels (Citation Nos. 365172, 365173, 365174, and 

365175). In each instance the inspector noted that even though the 

workers were wearing respirators, "administrative or engineering controls 

were not being used to control the contaminant and eliminate the need for 

respirators". The abatement time for each of the citations was fixed by the 

inspector as April 20; 1979, and in each instance the inspector extended 

the abatement time several times, up to and including August 10, 1979, and 

his justification for doing so is noted as "This dust citation is being 

extended on the basis of the company's abatement plan". 

On October 10, 1979, Inspector Lalumondiere issued four section 104(b) 

withdrawal orders, Nos. 366580, 366581, 366582, and 366583, after finding 

that the time for abatement of the previously issued citations of March 20, 1979, 

should not be furthe·r extended, and the reason for not extending the 

abatement time further is noted as "efforts to control this dust problem 

did not warrant further extension". He ordered withdrawal of the entire 

milling operation, the entire mill building, the pulverizer crusher, and 

the two spout bagger. 

On April 14-15, 1980, Inspectors Lalumondiere, Roesler, and Haeuber 

conducted an inspection of the plant while it was still under the previously issued closure orders of October 10, 1979, and cop~es of their 

report, as well as the actions taken as a result of that inspection are 

found in Exhibit P-10. Those documents reflect that the closure orders 

were terminated, the citations ·were "reinstated", and the abatement times 

were further extended. As justification for these actions, Inspector 

Lalumondiere noted as follows: 

In accordance with the company's respirable dust 

control plan of April 14, 1980, a good faith effort 

to install feasible engineering controls is now 

1112 
being made. Moreover, as noted in that plan an 

effective respirator program is being installed. 

* * * However, further sampling and evaluation 

will be needed to determine if all feasible engineering 

and administrative controls have been implemented 

or whether present controls have reduced exposure to 

below the T.L.V. 

In his "field notes" attached as part of Exhibit P-10, Inspector Lalumondiere 

made the following notation: 

The ruff-buff bagger was just being reinstalled, and 

the neosil bagger had a capture velocity of about 

350 F.P.M. When we checked the two spout bagger, we 

were getting a capture velocity of 400 FPM. This was 

considered adequate and within that recommended by 

Denver Tech. Support. A new slide had been installed 

at the elevator of the crusher to the storage tank 

and the leaks in the crusher elevator had been repaired. 

When I checked the #3 elevator, the section that had 

been leaking so bad before had been replaced. The 

clean up in the mill and throughout the warehouse was 

·good as it had been washed down. We terminated the 

orders and reinstated the (6) six dust citations. When 

we got ready to leave the property, we tried to explain 

to Mr. Smarje [sic] that the place would have to be kept 

in its present condition if he wanted to operate, and 

at this time he became very arrogant. Ray told him that 

if he did not keep the place in a clean condition and 

did not keep his leaks repaired, he could be assured that 

he would not operate and we left it at that. 

Exhibit P-11 are copies of section 104(b) closure orders issued by 

MSHA Inspectors Jack Lester and Bruce Dial on June 27, 1980, and they 

all cite violations of section 57.5-5. The areas affected by the closure 

orders are shown as "two spout bagger", "fork lift", "mill building", and 

"crusher building", and in each instance the inspector noted that "the 

company failed to follow the dust control plan submitted to MSHA on 

April 14, 1980". Inspector Dial's field notes, included as part of Exhibit P-11, 

state in part as follows: 

* * Mr. Smarje [sic] came in and said that we picked 

a good day to come and shut them down, because everything 

was wrong. He also told us that they were not following 

the plan that they drew up for wrapping the pallets. 

* * We left the property and went to a table in a 

park to talk about the orders and write them. While 

we were writing the orders a Mr. Norton "owner" came to 

the table and ask [sic] what we found. Jack told him 

1113 
that they were not going by the plan. that he wrote up. 

He ask [sic] if we were going to shut them down and we 

said .that we were going to issue some orders. He said 

that he was going to call his attorney then. 

* * We went back to the plant at 10:10 and issued 

the withdrawal orders. Jack spoke with there [sic] 

attorney and ~e waited till 10:45 to see if the plant 

was being shut down. We left the plant and called. 

Ray Rossler [sic] and he told us to return to the office. 

Mr. Lester's "field notes" contain the following notations: 

Smarje [sic], when asked about plastic wrapping the 

palletized material, stated that he had not been complying 

with that part of the plan. Only 8 of the 69 pallets in 

the warehouse was wrapped. * * The attorney for 

TaIIDilsco talked to me on the phone before we left and 

wanted me to call Dr. Goodwin. I informed Smarje [sic] 

that I would have to go through proper channels in order 

to converse with Dr. Goodwin, and that he would be 

contacted after we returned to the office. 

Mr. Lester's and Mr. Dial's field notes both make reference to the 

"two spout bagger", and they observed that the area around it was being 

washed down by employees, but that the dust collector in the catch basin 

was plugged up on one of the spouts, but that two men were immediately 

put to work on this. No mention is made of the ruff-buff bagger. 

On July 1, 1980, Inspector Lester rescinded his previous closure 

orders concerning the two-spout bagger and the crusher operator, and 

reinstated the citation and extended the ab.atement time. He did so for 

precisely the same reasons as Inspector Lalumondiere on April 14-15, 1980 

(Exhibit P-16). 

On August 20, 1980, Inspector Lalumondiere issued four section 104(b) 

withdrawal orders affecting the mill clean-up man, the mill operator, 

the crusher operator, and the two spout bagger, as his stated reasons 

for doing were "due to the lack of good faith effort being put forth 

by operator and failure to follow dust control plan, this citation does 

not warrant further extension" (Exhibit P~l6). He also issued withdrawal 

orders for fork life operator and the bag stacker for the same reasons 

(Exhibit P-12). Mr. Lalumondiere's "field notes", regarding these citations 

contain the following notations: 

* * * 

behind the 

filled and 

There was a pile of dust about six inches high 

two spout bagger where the catch basin had 

was spilling over. 

* * * There was a bad leak at the neosil feed elevators 

and also leaks in· the screw conveyor above the ruff-buff 

bagger. A velocity check of the neosil bagger showed 

only 100 to 150 FMP and the crusher the same thing. 

* * * The main elevator on the roof of the building 

for the neosil and ruff buff was leaking at the neosil 

slide. 
On August 26, 1980, Inspector Haeuber rescinded Inspector Lalumondiere's 

closure orders of August 29, 1980, reinstated the citations, and he did 

so for the same reasons quoted above (Lalumondiere). He extended the 

abatement times to September 29, 1980, and they were further extended to 

November 10, 1980, February 18, 1981, April 10, 1981, July 8, 1981, 

September 8, 1981, and in each instance the extensions were granted so 

that "shift weighted average resampling" could be conducted and the results 

"calculated to determine the shift weighted average exposure" of the 

occupations in question. Further extensions for abatement were made up 

to and including July 6, 1982 (Exhibit P-16). 

Exhibit P-14 is an April 13, 1981, memorandum report from Inspector. 

Lalumondiere to Mr. Slade concerning a dust survey conducted at the plant 

on March 10-11, 1981. Aside from the results of the survey which are 

attached to the memorandum, Mr. Lalumondiere presents a narrative summary 

concerning his observations, and it includes observations of "piles of 

silica dust", "dust collectors venting dust like a steam engine into the 

atmosphere", "leaking equipment", "dust blowing everywhere" by the main 

elevator for the 2-spout bagger, "only a few pallets were.wrapped", and 

he concluded his report by stating that "I could see no great improvement 

of the conditions at Tammsco other than the fact that the employees are 

more conscientious when it comes to wearing a respirator". 

As a result of the dust survey of March 10-11, 1981, Inspector Bruce Dial 

issued a citation on April 6, 1981, No. 0500426 (Exhibit P-16), citing a 

violation of section 57.5-5 because the laboratory results from the silica 

bearing dust for the neosil bagger was out of compliance. Inspector Dial 

concluded that a violation existed on March 11, 1981, the day the sample 

was taken, but he indicated on the face of the citation form that "this 

citation is issued on April 6, 1981." He fixed the abatement time as 

July 8, 1981, and Inspector Lalumondiere extended the abatement times to 

September 8, 1981, December 8, 1981, and February 25, 1982. 

The compliance extensions through February 25, 1982, were made 

pending receipt of the results of dust resampling and recalculation 

to determine the shift weighted average exposure of the neosil bagger. Thereafter, on March 16 and May 17, 1982, Inspector Donald Baker, after noting 

the results of the dust tests for the neosil bagger, extended the time 

for compliance to April 26 and July 6, 1982, and in both instances he 

noted that the extensions were made "to allow time for additional engineering 

controls to be performed", and he also explained the dates on which he 

wrote the extensions of the abatement times as "due to the delay in getting 

the samples analyzed". 

Respondent's "dust control plans". 

It should be noted at the outset that there are no mandatory MSHA 

regulations or standards requiring a mine operator subject to the mandatory 

health and safety standards found in Part 57, Title 30, Code of Federal 

Regulations, to submit or adopt any· specific dust control plan, or to submit 

1115 
such plans to MSHA for review and approval, and Mr. Slade conceded that 

this was true (Tr. 353). Thus, absent any such mandate, a mine operator 

is free to fashion any plan that he wishes, as long as MSHA doesn't object. 

Any objections by MSHA usually take the form of citations and closure orders, 

and this forces the operator to review its "plan" so as to achieve "abatement" 

until the next inspection. In short, such plans are all too often formulated 

by such "trial and error methods", and the evolution of the respondent's 

so-called "dust control plan" of April 14, 1980, is in my view a classic 

example of this. 

Respondent's "dust control plan" is in the form of a letter dated 

·April 14, 1980, from John Norton to MSHA's Vincennes, Indiana field office 

(Exhibit P-9). The letter states that it is in response from MSHA for a 

revised plan, and Mr. Norton agrees to follow the itemized dust control 

measures set forth in the letter. Item 4(e) states that "shrouds will be 

installed and maintained on all bagging machines". Also included among 

the dust control measures are provisions for "clean-up as necessary" to 

prevent silica from becoming airborne, "immediate clean-up" of silica 

spills, repair of leaks, daily and periodic pre-shift and on-shift 

inspections by a supervisor, dust control measures for equipment, and 

measures to insure personal respiratory protection for all employees. 

Attached to the exhibit is a December 18, 1979, Tammsco Inc. notice to 

all employees concerning the company's program for the use, cleaning and 

repairing of respirators. 

Inspector ·Lalumondiere's testimony reflects that the "plan" came 

about after one of .the respondent's competitors, Illinois Minerals Company, 

faced with a closure order from MSHA for noncompliance with the same dust 

standards, asked for an expedited hearing. According to Mr. Lalumondiere, 

after the start of the hearing, the parties reached a compromise agreement 

which permitted Illinois Minerals to resume its operation as long as 

the company agreed to submit a written "dust control plan" detailing 

its proposed dust control methods. Faced with a similar closure situation, 

and in an attempt to have his plant reopened, Mr. Lalumondiere stated 

that on advice of MSHA's legal counsel, Tammsco's President, John Norton, 

was advised that the plant could be re.opened, but only if Mr. Norton 

submitted a plan similar to that submitted by Illinois Minerals. At 

Mr. Norton's request, Mr. Lalumondiere permitted Mr. Norton to copy 

the provisions of the Illinois Minerals plan, and it was subsequently 

submitted by Mr. Norton in his letter of April 14, 1980, and Mr. Lalumondiere 

stated that both plans were basically the same (Tr. 171-172). 

During the course of the hearing, as well as during the taking of 

various depositions, respondent's counsel maintained that the respondent's 

dust control plan of April 14, 1980, was superceded by a subsequent plan 

dated September 23, 1980 (exhibit R-8). Although Mr. Norton makes reference 

to both plans in his interview statement filed with Inspector Haeuber, Mr. Norton 

was asked no questions concerning these plans by either party during the 

hearing, and he gave no testimony on this issue. His prior comments to 

Inspector Hawuber concerning the April 14, 1980, plan is an assertion at 

page two of his corrected statement that "this plan was dictated to us 

1116 
by the Mine Safety and Health Administration". His only explanation 

concerning the September 23, 1980 plan, was in response to a question 

asking him to explain why the ruff-buff bagging machine was allowed to 

be operated without a shroud. His response, at page two of his corrected 

statement is "The dust co'ntrol plan of April 14, 1980, was superseded by 

a dust control plan of September 23, 1980". 

I take note of the fact that the September 23d plan does not provide 

for any dust control shrouds. In fact, the "plan" consists of four paragraphs, and an attachment which is dated June 20, 1980, titled "Cost to 

Upgrade Production", and it appears to be some sort of preliminary cost 

analysis for two phases covering the years 1980-1989 and 1989-1990. The 

four paragraphs on the face of the plan itself are as follows: 

By means of inspection, repair and clean-up, dust 

levels will be maintained at or below conditions 

existing at the onset of the Mine Safety and Health 

Administration PAR program (September 1980). 

Above dust levels will be monitored by equipment 

specifically designed for measuring respirable dust 

and under the supervision of ·a neutral party. 

Efforts to bring the plant into dust standard compliance will continue. An overview of the plan to 

accomplish this is marked exhibit A and attached 

hereto. 

Respiratory protection will be provided and the 

respirator progr~m will be consistent with American 

National Standards Institute requirements for a 

respiratory protective program. 

In arguing both the existence of the September 23, 1980 plan, and 

in support of his assertion that it superceded 'the April 14, 1980 plan, 

respondent's counsel produced several documents received for the record 

as exhibits R-7, R-8, and R-13. These documents are a letter dated 

July 10, 1981, addressed to MSHA's office in Arlington, Virginia, for 

the attention of Mr. Slade, a copy of an MSHA "buck slip" or "routing slip" 

dated 3/26/81, addressed to Mr. Slade from Inspector Roesler, enclosing 

a copy of the 9/23/80 plan, and a document dated August 4, 1981, which 

is Mr. Schmarje's "corrected" version of his interview with Inspector 

Haeuber in which Mr. Schmarje makes reference to the 9/23/80 plan. In 

addition, attached to the deposition taken of Dr. Goodwin is a copy of a 

letter dated March 20, 1981, to Dr. Goodwin from Mr. Norton, in which 

Mr. Norton makes reference to the September 25, 1980 plan, a letter dated 

July 30, 1981, to Congressman Paul Simon from Mr. Norton, in which Mr. Norton 

makes reference to the plan, and a letter·dated July 15, 1981, from 

Mr. Schmarje to MSHA assessment officer Neil Handley, which also makes 

reference to the plan. 

• 
• 

Mr. Slade denied ever receiving the July 10, 1981, letter addressed 

to his attention concerning the second plan, and Dr. Goodwin could not 

recall seeing the correspondence referred to by counsel during his deposition. 

Further, Mr. Slade testified that notwithstanding any other "plans", 

at no time did MSHA ever agree that any engineering controls other than 

those stated in the April 14, 1980, letter from Mr. Norton would be 

acceptable (Tr. 355). 

In response to certain bench questions concerning the two plans, 

respondent's counsel asserted that his point in pursuing the existence 

of the second plan was to establish that the respondent was acting in good 

faith.(Tr. 344). Counsel conceded that the second plan did not repeal 

the April 14, 1980, requirement that the dust shroud in question be 

maintained on the bagging machine in question as a feasible and acceptable 

engineering control (Tr. 344), and he conceded that the shroud was just 

such a device (Tr. 345-347). His concern is reflected in the following 

colloquy at Tr. 347-349: 

JUDGE KOUTRAS: But what you are saying is that 

"Judge, if you find for the respondent in this case, 

on the fact of this case, and dismiss the citation, 

that means we can take all these devices off all 

these machines, because we are coming up with a 

better--we are coming up with a ten-year plan." 

MR. COGHLAN: No, I am not saying that, Judge. 

I am not saying that at all. I am saying that the 

Secretary is obliged to do certain things under 

the case law with reference to each plan or submission • 

In other words, it would appear as though the 

Secretary appears to be continually negotiating. The 

Secretary must not continue to negotiate. He has a 

duty to expressly tell the operator, "Look, we are not 

negotiating. I want to remind you that there is no 

revision. There is no refinement. There is no 

carryover." We are not talking about that. What we 

are talking about is that you are obliged to keep your 

agreement. We are not revising it. 

Now, in coal, as you know better than I, they have 

very definite standards and, in coal, the operator 

has some very special remedies, but in metal, nonmetal, 

and especially underground, they just do not have it. 

There is no statutory authority for the plans. 

Now, what concerns me is this: This the one definitely 

had overhanging it for many months, in conversation 

with various people, criminal sanctions threatened [sic]. 

I, personally, was advised of this. 

JUDGE KOUTRAS: I understand. 

1118 
MR. COGHLAN (continuing): --this roundabout way 

of making law, whereas where criminal sanctions are 

involved, just like Chapter 38 here in Illinois, we 

need that type and kind of· certainty, and that the 

agent cannot be in doubt when he is -told by the operator, 

"Look, do not worry about it. I was in Washington. 

There are four more plans going." 

JUDGE KOUTRAS: Mr. Coghlan, my only observation to 

that is that what MSHA probably could do, and probably 

should have done, to dispel! any notion that they are 

doing it piecemeal is to shut the plant down and leave 

it shut down. 

MR. COGHLAN: So that everybody knows. 

JUDGE KOUTRAS: But what happens in the real world is 

that the operator will do anything in his power to terminate 

that citation. He will promise MSHA the moon. That is 

what he did in this case. It is obvious to me in this 

letter. 

When asked by the Court why there is no mandatory standard requiring 

a mine operator to submit a dust control plan, Mr. Slade responded as 

follows (Tr. 352-354): 

JUDGE KOUTRAS: You know, but I have asked this question 

time and time again: Why is there not a standard that 

requires them to come up .with a plan? 

MR. COGHLAN: That is my question. 

JUDGE KOUTRAS: I will ask it again, Mr. Slade. What is 

the answer? 

THE WITNES~: Because we have never been able to get 

one through public hearings and ALJs. 

JUDGE KOUTRAS: What do you mean, "ALJs"? Do you mean 

to tell me that the Secretary cannot propose a rule to amend 

"57" to include a provision in there that requires a mine 

operator in metal or nonmetal to submit a dust control plan? 

THE WITNESS: He can propose it, but the objections are 

usually so strenuous 

JUDGE KOUTRAS: Has it ever been proposed? 

THE WITNESS: Yes, ·sir, it has. 

JUDGE KOUTRAS: Has it ever gone to a rulemaking hearing 

before the Administrative Law Judge of the Labor Department, 

because we are out of the rule-making business now? 

1119 
THE WITNESS: I do not know. 

JUDGE. KOUTRAS: In other words, when it is publi~hed in 

the Federal Register and the Secretary,gets objections 

from the industry, then he just drops it? 

THE WITNESS: In many cases, yes. 

JUDGE KOUTRAS: I am talking about the specific proposal, 

rule-making, for a requirement that mine operators submit 

a plan to MSHA for review. 

THE WITNESS: Well, there are Presidential guidelines and 

such that demand a reduction in paper work. They demand 

to--

JUDGE KOUTRAS (interrupting): In my humble opinion, the 

lack of such a specific mandatory standard generates more 

paper work rather than cutting it down, because what I see 

in this case is plans done by correspondence and by law firms 

and by Congressmen and by lawyers in the Solicitor's Office. 

That is the way these plans are written. I am suggesting 

to you, Mr. Slade, that you promulgate a standard that tells 

any mine operator, "You are required to come up with a plan 

within X number of days of starting to dig that first piece 

of whatever you are digging there, and you submit that plan 

to MSHA for their review. We will give you suggestions and 

the guidelines and, once you go through the filtering process, 

there is the requirement." 

THE WITNESS: I assure you that the air quality standards under 

proposal right now will include that proposal. 

Findings and Conclusions 

In Docket No. LAKE 81-190-M, the corporate operator Tammsco Inc. 

is charged under section llO(a) of the Act with a violation of mandatory 

standard 30 CFR 57.5-5. The citation charges that on May 7, 1981, the 

ruff-buff bagging machine, which is in use, was not hooked into the dust 

collection system of the mill as stated in a dust control plan submitted 

by the company on April 14, 1980. In Docket No. LAKE 82-65-M, Respondent 

Harold Schmarje, the plant manager, is charged under section llO(c) 

of the Act with knowingly authorizing, ordering, or carrying out this same 

alleged violation as an agent of Tammsco Inc. 

The interpretation and application of the term "knowingly" as used 

in the Act has been the subject of litigation before this Commission. 

MSHA v. Everett Propst and Robert Stemple, 3 FMSHRC 304 (1981). In MSHA 

1120 
v. Kenny Richardson, 1. FMSHRC 874 (July 1979; ALJ Michels), 3 FMSHRC 8 

(January 1981), the Commission held that the term "knowingly" means 

"knowing or having reason to know", and it rejected the assertion that 

the term requires a showing of actual knowledge and willfunless to 

violate a mandatory standard. In this regard, the Commission adopted 

the following test as set forth in U.S. v. Sweet Briar, Inc., 92 F.Supp. 777 

(D.S.C. 1950): 

'[K]nowingly,' as used in the Act, does not have any 

meaning of bad faith or evil purpose or criminal intent. 

Its meaning is rather that used in contract law, where 

it means knowing or having reason to know. A person 

has reason to know when he has such information as would 

lead a person exercising reasonable care to acquire 

knowledge of the fact in question or to infer its existence. 

In Richardson, the Commission held that its interpretation of the 

term "knowingly" was consistent with both the statutory language and 

the remedial intent of the Act, and expressly stated that "if a person 

in a position to protect employee safety and health fails to act on the 

basis.of information that gives him knowledge or reason to know of the 

existence of a violative condition, he has acted knowingly and in a manner 

contrary to the remedial nature of the statute". On appeal to the Sixth 

Circuit, the Court affirmed the Commission's decision, Richardson v. 

Secretary of Labor, FMSHRC, 689 F.2d 632, decided October 1, 1982. !.._/ 

The respondents in these proceedings are charged with violations of 

mandatory standard section 57.5-5. This standard requires that employee 

exposure to harmful airborne contaminants be controlled, insofar as feasible, 

by prevention of contamination, removed by exhaust ventilation, or by 

dilution with uncontaminated air. Thus, the standard on its face, does 

not require the complete elimination of such harmful airborne contaminants. 

It simply requires that employee exposure be controlled by prevention, 

removal, or dilution, and these control measures are directly dependent 

on the development and application of feasible and acceptable engineering 

control measures so as to insure that any employee exposure is limited to 

or does not exceed those exposure levels mandated by the threshold limit 

values mandated by mandatory section 57.5-1. Section 57.5-5, contains 

two exceptions. The first exception comes into play if no accepted engineering 

dust control measures have been developed. In this case, employees may 

work for reasonable periods of time in concentrations of airborne contaminants 

exceeding permissible levels as long as they wear respirators, and as 

long as the company's "respirator program" meets the requirements of 

subsections (a), (b), and (c) of section 57.5-5. A second limited exception 

is dictated by the "nature of the work involved", i.e., occasional 

entries into contaminated areas while establishing controls, performing 

maintenance, or conducting investigations, and in these cases employees 

are required to wear respirators. 

MSHA has the burden of proof in these proceedings, and it must establish 

by a preponderance of the credible testimony and evidence that (1) employee 

exposure to harmful silica dust exceeded the permissible levels, and (2) 

there existed feasible engineering or administrative controls to control 

employee.exposure to such dust, and that these controls were not utilized. 

!_I ~· denied, No. 82-1433, May 16, 1983. 

1121 
The Dictionary of Mining, Mineral, and Related Terms, published by 

the U.S. Department of the Interior, Bureau of Mines, defines "silicosis" 

as follows at pgs~ 1012-1013: 

Lung disease caused chiefly by inhaling rock dust 

from air drills. * * * A condition of massive 

fibrosis of the lungs marked by shortness of breath 

and resulting from prolonged inhalation of silica 

dusts by those, as stonecutters, asbestos workers, 

miners, regularly exposed to such dusts. 

According to the information contained in the preface to the 1973 TLV 

Booklet published by the ACGIH, the term "threshold limit values" refer 

to airborne concentrations of substances and represent conditions under 

which it is believed that nearly all workers may be repeatedly exposed day 

after day without adverse effect. These values refer to time weighted 

concentrations for a 7 or 8 hour workday and 40 hour workweek, and the 

amount and nature of the information available for establishing a TLV 

varies from substance to substance. 

The specific threshold limit values for contaminants are set out 

in section 57.5-1, which adopts by reference the dust exposure limits 

set o.ut in the 1973 edition of the American Conference of Governmental 

Industrial Hygienists (ACGIH) publication TLV's Threshold Limit Values . 

for Chemical Substances in Workroom Air (exhibit P-4). The TLV or threshold 

limit value which establishes the maximum exposure for any particular 

contaminant is obtained by a formula found in this publication. 

Although the respondent in this case initially indicated that it 

believed its silica products to be of the amorphous type, the record in 

this case establishes that it is crystalline, and the respondent conceded 

that this was the case. The TLV formula for crystalline silica is set 

out at pgs. 32-33 of the ACGIH TLV Values, exhibit P-4, and in a letter 

dated May 21, 1981, from Max Slade to Mr. John Norton, Mr. Slade states 

in pertinent part as follows: 

In your letter to Representative Simon you say 

that, 'the MSHA allowable dust level in the workplace environment total is .1 milligram in eight 

hours.' This is a misconception, the MSHA allowable 

limit for airborne respirable dust is expressed by 

the formula 10 + (%Quartz+ 2), and is listed in 

milligrams of dust per cubic meter of air (mg/m3). 

For dust containing 50 percent free crystalline 

silica (quartz) §he allowable limit would be 10 + 

52 or 0.192 mg/m . The average white male under 

a moderate work load will breathe approximately 22 

cubic meters of air in an 8-hour work day. If this 

air contained .192 mg/m3 of dust, a person would 

breathe 4.22 milligrams of dust in 8 hours or 21.1 

1122 
mg per 40-hour week, or 1012.8 mg per 48-week year. 

This is some 40 times greater than the amount you 

indicated as the MSHA allowable limit. 

In order to determine the adequacy of a mine operator's dust control 

measures, mandatory standard section 57.5-2, requires that "dust, gas, mist, 

and fume surveys shall be conducted as frequently as necessary to determine 

the adequacy of control measures". Thus, .it seems clear to me that there 

is a direct inter~relationship between the mandatory standards found 

in sections 57.5-1, 57.5-2, and 57.5-5, and that the clear intent of these 

standards is to provide a regulatory mechanism for addres,sing dust hazards 

by establishing requirements for (1) identifying the existence of hazardous 

dust levels in the working environment, (2) seeking means to control employee 

exposure to such hazards, and (3) providing a means for a mine operator 

to address the problem and come up with workable solutions. 

Respondents' defense to the citations is the assertion that on May 6, 1981, 

the shroud which had been welded on to the ruff bugg bagging machine 

was knocked off and demolished by a fork life operator. Further, respondent 

maintained that the new ruff buff bagger had been in place since January 1981, 

and that it was operated intermittently by Mr. George Storm, who stated 

that he never operated the bagger without the shroud (Tr. 218-219). Counsel 

also maintained that Mr. Storm had previously told MSHA investigator 

Dennis Haeuber that the shroud was always on the machine when he operated 

it (Tr. 221). He also maintained that the shroud which was installed on 

the new bagger was in fact the shroud which was on the old bagger, and that 

after the new one was moved to its present location, the old shroud was 

welded on the bagger after some modifications were made to accommodate 

it (Tr. 221). He argued further that the plant as it was on July 23, 1979, 

was not the same as on May 7, 1981, and that no valid sample was taken 

that day to substantiate the violation (Tr. 223). 

With regard to the lack of samples, respondent's counsel asserted 

that in this case MSHA has the burden of establishing by a preponderance 

of the evidence that there was exposure to harmful airborne contaminants, 

and while it need not test every machine in the plant, if MSHA believes 

that the ruff-buff product in question exposed an employee to contamination 

on any given day, it must sample and test the material to support that 

conclusion on the day it claims the employee was over-exposed (Tr. 384-385). 

Counsel conceded, however, that if samples were taken a few days before 

the citation here was issued, and they were found to be out of compliance, 

then one can assume that on those days, employees were in fact exposed 

to harmful airborne contaminants (Tr. 384). 

MSHA's counsel argued that the physical conditions (airborne silica) 

of the plant which Mr. Slade and Mr. Lalumondiere observed on the day of 

the inspection in question, coupled with the fact that dust samples taken 

before and after that date showed the plant was still out of compliance 

are important factors in any determination concerning the' presence of 

1123 
harmful airborne contaminants. In addition, counsel pointed out that 

since the NIOSH study, as well as the fact that continuous dust surveys 

and samples show noncompliance, the respondent is still mining the same 

silica and nothing has changed (Tr. 387). 

At the close of MSHA's case in chief, respondent's counsel moved 

that the citations be dismissed on the grounds that MSHA has failed to 

establish employee exposure to harmful airborne contaminants by means 

of prevention, removal, or dilution. Counsel asserted that ~SRA's evidence 

failed to establish the exposure necessary to establish the violations, 

and that evidence of harmful exposure two years earlier is insufficient 

to establish the kinds of violations issued on May 7, 1981. He concluded 

that any prior sampling was done at times unrelated to the alleged violations 

in question (Tr. 393-394). The motion was DENIED (Tr. 394). 

MSHA's failure to test or sample the ruff-buff material in question 

MSHA's mandatory air quality standards as found in section 55.5-1, 

56.5-1, and 57.5-1, as well as the requirements for controlling employee 

exposure to harmful airborne contaminants as found in sections 55.5-5, 

56.5-5, and 57.5-5, has been the subject of litigation before this 

Commission and the courts, and a review of some of these cases follows 

below. In each instance cited, the question of whether MSHA had established 

a violation of the airborne contaminant control requirements of sections 

55.5-5 and 57.5-5, were dependent on dust samples and tests, based on the 

TLV requirements found in sections 55.5-1 and 57.5-1. Further, the question 

of whether a particular airborne dust contaminant was "harmful", and 

whether employees were unduly exposed to such dusts, has consistently 

been determined by testing and sampling to establish that employee exposure 

to such dust exceeded the recognized TLV. 

MSHA v. Washington Construction Company, DENV 79-371-PM, 3 FMSHRC, 2125, 

decided September 14, 1981, involved a_ quartzite quarry in which the 

respondent was charged with violations of section 57.5-5, because the 

results of the sampling of three miners in regard to airborne contaminants 

revealed that they were subjected to harmful exposure based upon the 

threshold limit values adopted in accordance with the regulation. The 

cited miners were exposed to ten, six, and three times the allowable 

limits, and while they were wearing respirators, the evidence established 

that accepted engineering control measures (water sprays) could have been 

applied in order to control the amount of. airborne contaminants, thus 

permitting the respondent to be in compliance without the use of respirators. 

MSHA v. Johnson, Stewart & Johnson Mining Company, WEST 79-175-M, 

decided August 17, 1981, 3 FMSHRC 1937, involved a citation for a violation 

of section 56.5-5, after a pit laborer, who· was sampled for dust exposure 

during a period of 445 minutes, was exposed to silica bearing dust in 

the amount of .92 milligrams per cubic ·meter. The Judge found that according 

to the threshold limit value adopted by the regulations, .42 milligrams per 
cubic meter should not have been exceeded. He also found that it 

was feasible to reduce the harmful airborne contaminants by use of water 

incorporated in the plant's.crusher spray system. 

In Climax Molybdenum Company v. MSHA, WEST 79-72-RM, decided 

April 16, 1981, 3 FMSHRC 964, Judge Moore took note of the fact that out 

of the nine cases involving alleged violations of section 55.5-5, which 

he had docketed for trial, eight were dismissed on motion by MSHA on 

the ground that there was no evidence to support the citations. With 

regard to the remaining case, the citation alleged that the 3uartz-bearing 

dust level around a floor jaw crusher operator was 1.02 Mg/m , where the 

threshold limit value (TLV) was .49 Mg/m3, and that feasible engineering 

or administrative controls were not being used to reduce the dust levels 

to the point where respirators could be eliminated. Judge Moore vacated 

the citation, and he did so on the ground that MSHA's testing procedures 

were flawed and suspect, and that the testimony of its laboratory technician 

in support of the citation was confused and unclear. 

MSHA v. Pacer Coruoration, DENV 79-257-M, decided by Judge Michels 

on August 28, 1979, 1 FMSHRC 1081, involved a citation for an alleged 

violation of section 55.5-1, and the citation there charged that a rock 

sorter was exposed to silica dust in excess of that permitted under 

section 55.5-l(a). Judge Michel's decision contains a comprehensive 

review of MSHA's dust sampling procedures, and based on the facts presented 

he vacated the citation and dismissed the case on the ground that the sample 

results in support of the citation in question contained unexplained wide 

variations in the percent of free silica found in the samples, and that 

the inaccuracy and uncertainty of the testing methods, as demonstrated 

by the record before him, led him to conclude that a violation had not 

been established. Although the Commission directed review of this decision 

in October 1979, it subsequently vacated its order for review in April 1980. 

MSHA v. DiCamillo Brothers Mining Company, WEST 81-210-M, April 21, 1982, 

4"FMSHRC 718, involved a citation issued for a violation of section 57.5-5, 

after a miner died when he was exposed to an excessive buildup of carbon 

monoxide, as determined by tests taken the same afternoon of the accident. 

Although the fatality apparently occurred when the ventilation was 

''circuited", the Judge held that the operator had an absolute obligation 

to insure that the contamination limits set out in section 57.5-5, as 

expressed in TLV's, were not exceeded. 

In a recent case decided on March 21, 1983, by the 10th Circuit Court 

of Appeals, Climax Molybdenum v. Secretary of Labor & FMSHRC, No. 80-2187, 

the Court affirmed the Commission's decision in Climax Molybdenum Co., 

DENV 70-102-M, 2 FMSHRC 2748 (Oct. 1980), 1 FMSHRC 1044 (Aug. 1979 

decision by ALJ Michels), affirming Judge Michel's dismissal of Climax's 

application for review of citations charging it with alleged violations 

of the mandatory dust standards found in mandatory standards 30 CFR 57.5-1 

and 57.5-5. Judge Michel's dismissal of the case prior to a hearing 

1125 
on the merits was predicated on the fact that MSHA decided to vacate the 

citations and sought dismissal of the case on the ground that it could 

not prove that Climax was not using all feasible dust control methods at 

the cited mining operation. Notwithstanding MSHA's vacation of the citations, 

Climax insisted that it was entitled to a declaratory order interpreting 

the cited dust standards and specifying that it was in fact using all 

feasible controls. In response to Climax's assertions that it was entitled 

to such declaratory relief, the court. made the following observations at page 

10 of its "slip opinion": 

We recognize that in the case before us, there exists 

considerable uncertainty regarding the proper interpretation of the FMSHA dust regulations. We are 

sympathetic to the plight of industries that must 

structure their operations and make long-term capital 

investments in the face of this uncertain regulatory 

environment. Nevertheless, the scope of our review 

of the Commission's denial of declaratory relief is 

limited to a determination of whether the Commission 

abused its discretion. In this case, the Commission 

provided reasonable justifications for the denial of 

Climax's request for declaratory relief. The Commission 

noted that the present dust regulations were unclear, 

in part, because the government's position on dust 

regulation is presently undergoing reformulation. 

The Commission may reasonably withhold declaratory 

relief in anticipation of a clearer exposition of 

government policy. The Commission also suggested that 

Climax has shown no special need for declaratory relief; 

Climax faces no greater peril than other mining companies 

in interpreting the content of the regulations. The 

Commission may reasonably choose to reserve its use of 

declaratory relief for special cases in order to conserve 

its administrative resources. Given the Commission's 

justifications, we conclude that it did not abuse 

its discretion in denying declaratory relief. (emphasis 

added). 

In his post-hearing brief, respondents' counsel argues that MSHA 

has presented no evidence whatsoever of any tests made or samples analyzed 

at or about the time of the inspection of May 7, 1981. With regard to 

the March 10-11, 1981, plant survey and tests made on those dates (exhibit 

P-14), counsel points out that the occupations and equipment which were 

surveyed are not part of the citation issued on May 7, 1981. As for the 

August 21, 1981, ruff buff particle size analysis (exhibit P-6), counsel 

points out that this was done after the citation issued. Even so, counsel 

points out further that the commercial value of the silica product is 

directly in proportion to the degree by which it is refined. Counsel 

asserts that the respondent manufactures its product to detailed specifications. The reason for the existence of the process is to change the particle 

1126. 
size of the raw silica ore deposit, and the finest product manufactured 

is almost 100% respirable, i.e., airborne and harmful. Since the results 

of MSHA's August21, 1981, particle size analysis of the ruff-buff product 

taken from the plant discloses that it is 94% larger than 44 microns, or 

almost totally nonrespirable, counsel maintains that MSHA has failed to 

explain its contradictory opinion that if the ore comes from the same 

dsposit, it is all harmful, i.e., respirable. 

) 

Respondent's counsel argues further that MSHA's position in this 

case that the conditions at the plant have not changed since 1979 is not 

supported by the facts. In support of its assertion that the plant 

conditions were not the same at the time the citation issued on May 7, 1981, 

counsel cites the testimony of John Norton concerning the capital expenditures 

made and as detailed in a letter to Dr. Goodwin of June 6, 1980, as well 

as Mr. Schmarje's testimony regarding five major inovations since 

February 1980 (Tr. 404). Exhibits R-3 and R-12, which are part of 

Dr. Goodwin's· deposition, reflect the improvements made at the plant 

to address the dust control problems, including completed or ongoing work 

with respect to 15 of the NIOSH reconnnendations, and these negotiations 

and changes have taken place during the interim period spanning the NIOSH 

study and the insp~ction of May 7, 1981 (Tr. 217-219). 

Exhibit R-9 i~ a copy of a dust evaluation study conducted at the 

plant by MSHA's Denver Technical Support Group during December of 1979, and 

January of 1980. At hearing and in his brief, respondent's counsel argued 

that these reports establish that due to certain plant modifications and 

improvements in controlling the dust, as reflected in this report, the 

conditions at the plant as of the time of those reports were not the 

same as those which may have existed at the time of the NIOSH study. 

Counsel argued that with the dust collecting equipment in place, as shown 

in these surveys, the dust levels which may have existed in July of 1979 

could not be the same as those which may have existed as of May of 1981 

(Tr. 380-383). 

In response to counsel's arguments, Mr. Slade conceded that the 

respopdent has made improvements and modifications to the plant, particularly 

in the Crusher Room. However, Mr.. Slade indicated that the continuing 

dust problems stems from the fact that the respondent has neglected the 

maintenance and clean-up recommendations. Even though dust control measures 

have been taken, and control devices have been installed, it was his 

position that the respondent did not properly use or maintain the dust 

control devices which it had available (Tr. 382). · 

Mr. Slade confirmed that in a letter to Mr. Norton, he acknowledged 

that improvements were made to the dust cont_rol plan and that money has 

been spent on some basic controls. However, Mr. Slade was of the following 

opinion (Tr. 385): 

The maintenance and upkeep and housekeeping of the 

plant is rotten. Their attitude toward dust control 

is rotten. What money they are putting in is being 

1127 
wasted because it is not being maintained and the 

housekeeping is not being adhered to. 

MSHA's post-hearing brief contains no discussion concerning the 

requirement for sampling. However, during the course ~f the hearing, 

MSHA's counsel took the position that no sampling was required to support 

the citation in question because the respondents are not charged with a 

violation of section 57.5-1, but are charged with a violation of section 

57.5-5, for failure to maintain the engineering controls (shroud) on the 

cited ruff-buff bagging machine (Tr. 478). However,'' counsel conceded that 

the term "harmful airborne contaminant" means any such contaminant which 

does not meet the requ1rements of section 57.5-1 (Tr. 477). 

In support of his position that no sampling or testing was required 

to support the citation, counsel asserted that ,the bagging machine in 

question was an integral part of the plant and that the area around that 

machine was not :incompliance with the dust standards at the time the 

citation issued on Hay 7, 1981. In addition, counsel maintained that the 

evidence establishes that even if the machine were only operated for an 

hour or two, it would contribute to the prevailing atmosphere, and without 

the dust shroud, the contaminants from the machine would necessarily 

contribute to the overall dust conditions which were out of compliance 

(Tr. 279). 

When reminded of the fact that each of the citations and orders 

issued in 1979, 1980, and 1981 (exhibits P-11, P-12, P-16), for violations 

of section 5 7. 5-5, were supporte·d by dust samples showing noncompliance, 

counsel asserted that the ruff-buff bagger in question was not operated 

everyday or for long periods of time, and that different people ·may have 

operated it at any given time. Given the fact that the ruff-buff bagger 

was located in close proximity to two other bagging devices, and with 

men working in that area, the lack of shrouds or the failure to comply 

with the dust standards contributes appreciably to the overall over-exposed 

work atmosphere (Tr. 484). He also stated as follows (Tr. 485-486): 

JUDGE KOUTRAS: But I'm just a little curious as 

to how one can determine specifically how much of 

a contribution the Ruff-Buff product has made to a 

person that's breathing it in if they don't test it. 

I mean, to me, that sounds like common sense that they 

would test over an eight-hour period--but you apparently 

take the position that it contributes and it's all mixed 

in together--

MR. SMITH (Interrupting): Well, let me say this to 

that, as far as I know. You can't force the 

operator, to make somebody stand there and make them 

be tested for a whole eight-hour period. That's number 

one. But they did make an analysis of the Ruff-Buff. 

product. That's in evidence and it's been explained 

by Mr. Slade and others that, you know, this was respirable 

and it was within the limits there. 

1128 
I'm informed that three pounds, every fifty-pound 

bag would be respirable. So you're talking--three 

pounds of fi"fty-pound bags, 6 per cent would be 

respirable. My colleague wanted me to say that for the 

record. 

Although Ms. Morring testified that samples of some of the silica 

products were taken and analyzed during the NIOSH survey, the ruff-buff 

product was not sampled (Tr. 117). With regard to the ruff-buff particle 

size analysis conducted on the two samples by MSHA's Denver Tech Center, 

as reflected in the August 31, 1981, memorandum (exhibit P-6), Ms. Morring 

explained that those test results reflect that 94% of the tested ruff-buff 

was not considered to be of sufficient size to render it respirable into 

the lung, but it is still considered to be toxic silica. She also 

explained that the test.s indicated that 98%, of the remaining 6% of 

tested material would be respirable, and when asked whether the 94% found 

to be nonrespirable would render it any less a "harmful airborne contaminant", 

she responded "yes and no", ·and explained her answer as follows (Tr. 127-128): 

THE WITNESS: Yes and no. No, it is not because 

at a 44 micron particle it cannot be inhaled into 

deep lung where it would cause damage. Yes, because 

as a 44 micron particle if any of this spills, gets 

stepped on, gets run over, whatever, it is reborn, 

so it can be ground down by these actions. 

When asked whether her answer would be different if the ruff-buff 

tests showed that none of it was respirable, she answer as follows (Tr. 128-129): 

JUDGE KOUTRAS: Let me.ask the question another way. 

Let's assume you have sampled the material and fourid 

that none of it sifted through and none of it was 

respirable according to your definition, would an 

operator be subject to a citation under this particular 

standard for failure to control airborne, harmful airborne contaminants? 

THE WITNESS: I can't answer that. 

When asked if she knew what an "air classifier" was, Hs. Morring responded 

that "it separates the particles by their organic size". When asked whether 

it was possible for such a device to separate particles so that there 

would be no "respirable particles", she responded that she was "not that 

familiar with the air classifier" (Tr. 117-118). She also conceded that 

she had not looked at or read sections 57.5-1 or 57.5-5 (Tr. 69). 

Ms. Morring went on to articulate her concern that the normal activities 

carried on in the plant around the areas where baggers are located can 

cause the nonrespirable silica dust to be reentered into the atmosphere, 

and if changes occur in the particle size it could get into the lungs. 

1129 
She also confirmed that NIOSH's concern is over the fact that the 

entire plant presents a problem with employees being over-exposed to 

harmful levels of silica dust. 

MSHA's position that dust samples and tests are not required to 

support the citation in this case is further reflected in the following 

colloquy with Max Slade (Tr. 389-391): 

JUDGE KOUTRAS: The reason I brought up this particular 

example, Mr. Slade, is that I take it them, when I 

read in these gravity sheets, I mean these narrative 

statements, the inspector's findings, which parrot the 

NIOSH study or which parrot some study that says that 

silicosis is this and this is that, that when the 

inspectors are obviously doing at this plant, for 

example, is that they are accepting all of this thing 

as gospel and they have regu~gitated in these statements 

to support citations of the standard, are they not? 

THE WITNESS: I believe, in the case of silica, it is a 

world-known fact that respirable silica causes silicosis. 

JUDGE KOUTRAS: I am not taking issue with that. 

THE WITNESS: So it is each inspector using his own 

individual thoughts and knowledge on the hazards of silica. 

JUDGE KOUTRAS: Can an inspector go to this plant and make 

a determination that silica is not hazardous and not issue 

a citation? 

THE WITNESS: No, sir. 

JUDGE KOUTRAS: Why can he not? 

THE WITNESS: Well, I guess he could, but he would probably 

be questioned on it. 

JUDGE KOUTRAS: He is not making that as independent judgment. He is accepting a fact that silica is a harmful 

airborne contaminant. 

THE WITNESS: Let me rephrase that. An inspector could 

go to this plant and say, "Well, I do not think this is a 

hazard," and not issue a citat;ion on it. 

JUDGE KOUTRAS: What would be the circumstances under which 

he would do that? 

THE WITNESS: Ignorance on the inspector's part. 

1130 
JUDGE KOUTRAS: Would part of the answer be that 

he tested and found that they were in compliance? 

THE WITNESS: Oh, yes. If they are in compliance, 

then they are not exposed to an airborne contaminant. 

JUDGE KOUTRAS: But you are saying here that they are 

under "continuing noncompliance" and on this very 

day they were out of compliance, with these outstanding 

citations, and that is why this inspector thought it was 

not necessary to even take a sample? 

THE WITNESS: That is right. 

JUDGE KOUTRAS: All right, just so I understand that. 

MR. SHITH: Plus the physical conditions that he observed 

there on that day of the silica around in the air. 

JUDGE KOUTRAS: Now, if Mr. Coghlan produces the mystery 

witness, who sampled the dust on that day and found that 

that machine was in compliance, your case goes down the 

"tube", does it not? 

MR. SMITH: It sure would. 

MSHA's Metal and Nonmetal Mine Safety and Health Inspection and 

Investigation Manual, 1981 Edition, contains an entire Chapter 64 dealing 

with health inspections and testing and sampling procedures. Chapter 65 

of the Manual deals with the procedures to be followed by inspectors when 

issuing citations and orders, and the procedures for issuing citations 

of health standards are found in Chapter 65, Part II-AA, and the information 

contained therein at pgs. 65-AA-l is as follows: 

a. Airborne Contaminants 

(1) Procedures for Writing Citations 

If mine employees are found to be exposed to 

airborne contaminants in excess of the permissible limit defined in 30 CFR 55/56/57.5-1 

and the decision is made to issue a citation 

55/56/57.5-i and 55/56/57.5-5 shall be treated 

as one standard for purposes of issuing the 

citation, and only one citation shall be written 

as a violation of standard 55/56/57.5-1/.5-5. 

The body of the citation must contain all pertinent information, such as the TLV or permissible 

limit, the shift or time weighted average (SWA/ 

TWA), the airborne concentrations of the contaminant, 

information on personal protection, the source of 

contaminant, the date of the over-exposure, the date 

1131 
results were determined and the date the 

citation is issued and/or the reason for the 

over-exposure. Obvious deficiencies or breakdown in the control system for the contaminant 

should also be documented. 

Chapter 66 of the Manual is devoted to application of the standards 

in order to assist inspectors in determining the i~tent and purpose of any 

given standard which he may cite. The application for section 57.5-5 

is found at pgs. 66-D-l through D-3, and they are essentially the same as 

those quoted above, and the application of section 57.5-5 is specifically 

conditioned on a finding that exposure to airborne .contaminants is in 

excess of the permissible limit defined in section 57.5-1. 

There is no credible evidence in this case concerning the mining 

employment history of any miner whose environment was measured by any 

respirable dust samples from the ruff-buff bagging machine in question. 

MSHA's position seems to be that because the shroud may not have been 

in place when the ruff-buff was bagged, the contamination from that product 

contributed to the overall silica dust environment of the plant as a 

whole, as well as in the immediate bagging area, and therefore was 

obviously out of compliance with the requirements of section 57.5-5. 

(Tr. 232-236). When asked whether any of the miners whose occupations 

were out of compliance either before or after the time of his inspection 

of May 7, 1981, operated the ruff-buff bagging inachine.which·was cited, 

Mr. Lalumondiere responded that "I don't know who was operating the bagging 

machine" (Tr. 237). When asked whether any of the social security numbers 

for the miner occupations which were out of compliance on May 7, 1981, were 

directly related to the cited ruff-buff bagging machine, Mr. Lalumondiere 

responded "there would be none of them on that particular bagger, sir, 

because they would do a respirable dust sampling by using a dust pump to 

determine the TLV and TWA" (Tr. 237). He also indicated that it would 

have been "scientifically impossible" for the bagger to be in compliance 

without a dust shroud (Tr. 238). 

Although he confirmed that several occupations and pieces of equipment 

were out of compliance as of the date of the inspection of May 7, 1981, 

when asked whether he issued any citations for the "piles of silica dust" 

he observed that same ·day, Mr. Lalumondiere stated that he did not. During 

a colloquy which followed this answer, MSHA's counsel indicated that "they 

cite somebody for the failure to have the controls. That's the standard. 

They have to go by what the standard is " (Tr. 235). And, at Tr. 236, 

where counsel states "you don't cite each little pile by pile. You cite 

it the way they have to do it w_ithin the standards". 

Although it is true that at the time the citation was issued, 

respondent was out of compliance with the required TLV dust levels for 

several occupations and equipment, the fact is that MSHA permitted the 

plant to remain operational by extending the abatement times, and in one 

instance cited during the hearing, one citation was issued on March 11, 1981, 

1132 
and the abatement times were extended to July 6, 1982, a period of 16 

months. When qsked whether the respondent's noncompliance record iS-based 

on the fact that respondent was doing nothing to control its dust levels, 

MSHA's counsel responded that respondent was "not doing enough" (Tr. 481). 

The fact that the respondent today is still mining the same silica it was 

mining in 1979 does not necessarily mean that in any given case the silica 

dust is in fact a "harmful airborne contaminant" subject to a citation or 

closure order. In response to this very same question, NIOSH expert 

witness Morring stated that "it can be with appropriate levels" (Tr. 60). 

She also confirmed that she had no knowledge regarding any dust control 

improvements or dust surveys made at the plant since the 1979 survey, 

and that her testimony was based on the prevailing conditions as of the 1979 

survey period (Tr. 110-112). 

After careful review and consideration of all of the evidence and 

testimony in these proceedings, as well as the arguments presented by the 

parties, I conclude and find that MSHA has failed to establish that the 

levels of employee exposure to any harmful silica dust generated by the 

bagging of the ruff-buff product without the dust shroud attached to the 

cited bagging machine exceeded the acceptable threshold limit value mandated 

by s.ection 57.5-1. In my view, in order to support a violation, HSHA 

must take into account the prevailing conditions as of the time a citation 

is issued, and without testing, sampling, or consideration of any improved 

dust control measures taken by an operator, I fail to comprehend how it 

can expect to establish a violation. 

Respondent TAMMSCO's failure to attach the dust shroud to the ruff-buff 

bagging machine. 

The effectiveness of a dust shroud, and the fact that it is an 

acceptable and feasible engineering measure for the control of harmful 

levels of silica dust is not in dispute. Further, the parties are in 

agreement tht the citation of May 7, 1981, was issued becuase of the 

alleged failure by the respondents to insure that the dust shroud was on 

the machine when the bagged ruff~buff material which Mr. Lalumondiere 

observed during his inspection was bagged. MSHA's evidence in support 

of the citation consists of certain "admissions" purportedly made by 

Mr. Schmarje to Inspector Lalumondiere during the inspection of May 7, 1981, 

in the presence of Mr. Slade and Supervisory Inspector Raymond Roesler. 

In support of these "admissions" by Mr. Schmarje, Inspector Lalumondiere 

made reference to certain bags of ruff-buff material which he found stored 

on some pallets on May 7, 1981. He noted the dates stamped on those bags, 

and he claims that Mr. Schmarje admitted that the ruff-buff had been bagged 

by the machine in question on the dates stamped on those bags, and that 

he also admitted that on each days the materials were bagged, the machine 

was used without the shroud attached to it. 

1133 
· MSHA's position is that Mr. Schmarje admitted that the dust shroud 

in question was never on the ruff-buff bagging machine, and since this 

was the case, ·any material bagged by that machine was bagged without the 

required engineering control. Respondent denies that this is the case, 

but suggests that for a few days prior to the inspection the shroud was 

off the machine, and the reason it was off was because it had been damaged 

by a forklift and had to be removed for repairs. Respondent also suggests 

that any bagging of ruff-buff which may have taken place dur_ing a day or 

two while the damaged shroud was off the machine came about during the 

"necessary work" required to remove the silica from the machine in order 

to facilitate the repairs and that these were "exceptional circumstances". 

At the hearing held in this case, Mr. Laumondiere testified that while 

he did not tour the entire warehouse, there were seven pallets near the 

bagger, wit.h fifty bags of material per pallet, and one palle·t had seven 

bags of material at the bagger, and the dates on those bags were 11/12/80, 

12/12/80, 12/17/80, 1/8/81, 3/27/81, and 5/5/81 (Tr. 211). He confirmed 

that he asked Mr. Schmarje about these bags, and that Mr. Schmarje admitted 

that the bagger was used on the dates indicated to bag the product, that 

he knew the shroud was not in place, and that the dust collector had not 

been hooked up because the bagger was going to be moved as soon as the 

stockpile was built up (Tr. 212). Mr. Lalumondiere could not recall 

whether the dust control plan was discussed with ~1r. Schmarje at the time 

of the inspection, and th~ bagger was not in use that day. Abatement was 

achieved by installing a shroud and tying it to the dust collecting system, 

and he abated the citation when he went back to the plant on May 11, 1981 

(exhibit P-8, Tr. 213). A maintenance man told him that the shroud which 

had been lying by the door was the one which was installed and that this 

took about two hours (Tr. 214). 

In a pretrial deposition taken on June 29, 1982, Inspector Lalumondiere 

testified that the ruff-buff bags which contained the dates in December, 

January, and March, and which he found on the "partial pallet" by the ruffbuff bagging machine on May 7, 1981, the date of his inspection, were not among those 

on that pallet, but were among those stacked on the seven pallets stored 

in the warehouse. He also testified that the dates found on the partial 

pallet by the machine were all dated Hay 5, 1981. When asked why he had 

listed the December, January, and March dates as being found on "one pallet", 

he replied "no reason whatsoever. That's just rough dra.ft field notes that 

I have" (Deposition transcript pgs. 64-68). 

In a post-hearing deposition taken by petitioner on November 3, 1982, 

Inspector Lalumondiere identified copies of his "field notes" made during 

his inspection of May 7, 1981, and he confirmed that at that time Mr. Schmarje 

admitted to him, in Mr. Max Slade's presence, that the dust shroud was 

not on the ruff-buff machine at the time it was used to bag the materials 

shown by the dates on the bags he found stored on the pallets. Mr. Lalumondiere 

stated that at no time did Mr. Norton or Mr. Schmarje, or anyone else at 

the plant, tell him that the machine had been damaged (Tr. 3). When asked 

why his "field notes" (exhibit P-15) do not reflect the admissions by 

Mr. Schmarje, he responded as follows (Tr. 5-8): 
A. Well, I don't make notes of the exact conversation 

that· took place between the two of us. This is notes 

here that are strictly worth only something to me. 

I can go back through these and recollect things that 

went on during that time. And ... 

Q. In other words, you prepared these notes strictly 

for yourself, not for somebody else to cross examine, 

is that right? 

A. That's true. 

Q. Now, you wouldn't have •.. you put down there 

certain dates that you found the pallets, which indicated 

to you that the Ruff Buff bagging machine was operated, 

is that correct, sir? 

A. These were dates that material had been bagged and 

stacked on pallets and stamped with these dates. And 

on these, I can remember from looking at these dates ..• 

after we talked to Schmarje, he said that's the way they 

do it. They stamp the dates on them when they bag. 

He said on these dates they had run the Ruff Buff bagger. 

And when we asked him about the shr.oud on it, he said, no, 

he had never had it on. 

Q. Now, it wouldn't have been a violation if the shroud 

had been on. So, you just didn't put that down, is 

that right? In other words, what does that indicate 

to you? My question to you originally was, why didn't 

you put Mr. Schmarje's admission down in your notes? 

A. Like I said, I didn't put down word for word. I put 

on here, on the second page back here, that the Ruff 

Buff bagger had never been hooked up to the dust collector. 

When shown a copy of Special Investigator Haueber' s depo.sition which 

makes reference to a memorandum prepared after speaking with him, Mr. Lalumondiere 

was asked whether that memorandum confirms that Mr. Schmarje admitted 

that the shroud was not in place when the bagger was being used. Mr. Lalumondiere 

responded as follows (deposition pg. 8): · 

Q. And does this confirm what you just said a while 

ago, that Mr. Haeuber .•• Mr. Schmarje, rather, did 

admit that the shroud was not in place when the 

bagger was being used, the Ruff Buff bagger? 

A. It says it's indicated to his ••• to him that he 

knew the condition existed, yes. That Mr. Schmarje stated 

to me that he knew the condition existed. 

1135 
HSHA.Supervisory Inspector Raymond Roesler did not testify at the 

hearing in this case. In his deposition of June 29, 1982, he makes reference 

to some "field notes" which he made on May 7, 1981 when he accompanied 

Mr. Lalumondiere on the inspection in question. He confirmed that he 

told Mr. Lalumondiere to count the pallets which contained ruff-buff and 

to note the dates shown on the bags. He confirmed that he observed some 

pallets some 15 feet north of the bagging machine, and one partial pallet 

by the machine itself "with some bags on it that had just been bagged a 

couple of day's prior" (Deposition pg. 67) •. When asked if she remembered the 

dates on that partial pallet, Mr. Roesler responded--"I couldn't say 

offhand", "It could be the fifth", and he stated further that "I don't 

remember what the conversation was" (Tr. 86). In short, it seems clear 

to me that Mr. Roesler simply had no recollection as to the dates on any 

of the bags found on the pallets in question. 

With regard to the so-called admissions by Mr. Schmarje concerning 

the dust shroud in question, apart from the fact that he confirmed that 

the shroud was not on the bagging machine in question on May 7, 1981, and 

apart from the fact that he confirmed that he saw a shroud lying on the 

floor on a previous occasion when he visited the plant, Mr. Roesler 

did not testify as to any admissions purportedly made by Mr. Schmarje 

to Mr. Lalumondiere on May 7, 1981. As a matter of fact, Mr. Roesler 

conceded that on May 7, 1981, Mr. Schmarje made no statements to him 

-concerning the use of the machine (Tr. 93). He also stated that while 

Mr. Lalumondiere may have spoken with Ur. Schmarje that day, he (Roesler) 

could not remember any conversations with Mr. Schmarje, and stated "chances 

are very great that I probably didn't" (Tr. 94). Further, when asked 

whether he was present during any conversations between Mr. Slade, 

Mr. Lalumondiere, and Hr. Schmarje on May 7, 1981, concerning the ruff-buff 

machine, Mr. Roesler replied "I was with him, but I couldn't say for 

sure what was even said", and that he couldn't remember (Tr. 94). 

In view of the foregoing, it seems clear to me, that contrary to 

any inference that Mr. Roesler may have heard Mr. Schmarje make certain 

admissions concerning_ the dust shroud, Mr. Roesler could not recall any 

such admissions or conversations which purportedly took place on Hay 7, 1981, 

at the time of the inspection and the issuance of the citation. 

With regard to Max Slade's corroboration of Mr. Schmarje's "admissions", 

his testimony on this point is as follows (Tr. 334): 

Q~ Did you overhear Mr. Schmarje admit that the 

pallets that were dated indicated that the Ruff-Buff 

bagging machine was operated on those dates? 

A. When the pallets were discovered, Mr. Schmarje was 

overseeing the repair of the two-spout bagger. We 

went to him and spoke.about the condition around the 

Ruff-Buff bagger and Hr. Lalumondiere asked him about 

the dates on the pallets. I heard him say that, yes, 

that was the date that this material was bagged and he 

1136 

• 
asked him why the shroud was not in place and he says, 

"well_, we only use it for a short time and, besides, I 

wanted to get some material stockpiled, so we could move 

the bagging machine." 

Q. Did you overhear Mr. Schmarje indicate that they 

were going to continue to use it to stockpile? 

A. He said that he wanted to get a stockpile built up 

so they could take a few days to move the machine. 

Inspector Lalumondiere's field notes, as well as his inspector's 

statement (exhibit R-7), make no mention whatsoever of any "admissions" 

by Mr. Schmarje concerning the use of the cited bagging machine without 

the shroud attached. In addition, I find Hr. Lalumondiere's testimony 

of record, including his depositions, to be contradictory and confusing 

with respect to his documentation of the dates found on the bagged ruff-buff 

materials. I also find it quite surprising that during the special 

investigation conducted by Mr. Haeuber he asked no specific questions 

concerning the dates on the bagged materials. Except for a general question 

of Mr. Schmarje as to how much ruff-buff was stored in the warehouse, 

the copy of his interview with Mr. Schmarje contains no questions concerning 

all of the dates testified to by Mr. Lalumondiere. 

The special investigation conducted by Mr. Haeuber in this case leaves 

much to be desired. Aside from the fact that none of the statements are 

sworn, signed, or dated, some of the critical issues are developed by 

broad and general "questions and answers". The lack of procedures concerning 

tape recording of the interviews has resulted in serious questions of 

credibility and accuracy with regard to the information being developed. 

Mr. McKee claims he did not understand some of the key questions asked 

and stated that he was confused. Mr. Schmarje's edited version of his 

interview (exhibit R-13), was never submitted, and Mr. Schmarje complained 

that many of the questions were leading, and that his answers were taken 

out of context. Mr. Norton's statement was subsequently corrected and 

edited. 

The evidence in this case supports a finding that at the time of 

the inspection on May 7, 1981, the cited ruff-buff machine was not in 

use and that the dust shroud was not attached to the machine. However, I 

cannot conclude that MSHA has established through any credible testimony 

or evidence that the dust shroud was never installed on the machine, and 

that Mr. Schmarje knew it. In this reagrd, I take note of the fact that 

the record in this case suggests the existence of an "old" and "new" 

ruff-buff bagging machine, as well as the existence of an "old" and "new" 

dust shroud, and at times the witnesses were confused as to which was 

which. Further, while there is testimony that Inspector Lalumondiere 

observed a shroud lying on the floor during inspections prior to May 7, 1981, 

Mr. Lalumondiere conceded that he may have been confused when he gave 

his deposition (Tr. 225-230), and during the hearing the parties agreed that 

the shroud which was described as "lying on the floor" was not the device 

the inspector had in mind at the time the citation was issued (Tr. 224). 

113~7 
I can find no credible evidence in this case to support a conclusion 

that Mr. Schmarje in fact admitted to Inspector Lalurnondiere on May 7, 1981, 

that the shroud was· off the machine on each of the days that the ruff-buff 

materials were bagged. Petitioner's counsel conceded as much (Tr. 498), 

but he argued that on each occasion prior to the time the dates were 

detected on May 7, 1981, when Hr. Lalumondiere was at the plant and 

saw the shroud on the floor, Mr. Schmarje's response was that the bagging 

machine was not being used. Counsel conceded that the reason the inspectqr 

did not issue previous citations when he observed the shroud lying on 

the floor and off the machine is that if the machine is not in use when 

he is there, there is no way he can prove a violation. Further, counsel 

pointed out that on each occasion when the inspector observed the shroud 

on the floor., he took Mr. Schmarj e's word that the machine was not in use. 

However, when he found the stamp-dated bags during his inspection of May 7, 1981, 

he concluded that the machine had been used on the dates stamped on the 

bags which were stored on the pallet next to the machine, and when he 

confronted Hr. Schmarje, the inspector claims he (Schmarje) admitted 

that, the materials were bagged with the shroud off and that he knew it (Tr. 498-

501). 

Although the record adduced in these proceedings does support a 

conclusion that the bagged ruff-fubb materials observed by Inspector 

Lalumondiere on May 7, 1981, were bagged by the cited machine on the dates 

stamped on the bags, except for the ones dated May 5, 1981, I cannot conclude 

from the evidence presented by MSHA that on each of the other dates the 

materials were bagged without the use of a shroud. 

With regard to May 5, 1981, I believe that the record supports a 

conclusion that the dust shroud was off the machine that day, and that the 

bagger was used to bag ruff-buff without the shroud in place. Since the 

plant in question is a relatively small operation, and since it is obvious 

that Mr. Schmarje was directly involved in its operations, and was directly 

responsible for supervising· the workforce, I find it rather incredible 

that at the time of the inspection of May 7, 1981, he was totally oblivious 

or ignorant of the fact that a forklife had struck and damaged the cited bagger. 

Since he and MSHA have obviously been at odds with each other about the 

dust problems over a long period time, it seems to me that both Mr. Schmarje 

and Mr. Norton would have initiated an inquiry immediately on Hay 7th to 

document the fact that the shroud had "just been damaged a few days 

before". After viewing respondent's witnesses on the stand during their 

explanation of the purported damage to the bagger and shroud, I simply 

do not believe their account of the purported accidental striking of the 

ruff-buff bagging machine two days before the citations were issued. 

In addition to my rejection of the respondent's testimony concerning 

the alleged damage to the shroud, I take note of the fact that part of 

the respondent's defense in this case is the assertion that the applicable 

dust control plan in effect at the time the citation issued was one in 

which protective shrouds are not mentioned at all. In view of the fact 

1138 
that the respondent has consistently taken the position that the ruff-buff 

machine is not used on a regular basis, and has consistently mainta.ined 

that the material and product is the coarsest pro.duced :Ln the plant, one 

can reasonably conclude that it is more likely than not that at the time the 

ruff-buff was bagged on May 5, 1981, two days before the inspection, it 

was bagged without the shroud attached, and that Mr. Schmarje was aware 

of this. The "accidential striking of the bagger by a fork-lift" defense 

simply supports the conclusion that the shroud was off the bagger on 

May 7, 1981, and that respondents knew or should have known that it was 

not on the machine. 

In view of the foregoing, I conclude and find that MSHA has established 

that the dust shroud in question was not on the cited ruff-buff bagging 

machine on May 7, 1981, and that the machine was used. to bag the ruff-buff 

product on May 5, 1981, without the shroud attached. I further conclude 

and find that MSHA has not established through any credible evidence that 

the cited ruff-buff bagger was used prior to May 5, 1981, without the dust 

shroud attached. 

Insofar as Mr. Schmarje is concerned, I conclude and find that MSHA 

has established that when the ruff-buff b;agger was used to bag the materials 

on May 5, 1981, that Mr. Schmarje knew, or had reason to know, that the 

bagger was used without the dust shroud attached. As to any times prior to 

May 5, 1981, I cannot conclude that HSHA has proved its case against 

Mr. Schmarje by a preponderance of any credible evidence. 

Although the citation issued in these proceedings implies a violation 

of "the dust control plan submitted on April 14, 1980", I fail to understand 

how MSHA believes it can establish a violation of such a plan when there 

is no mandatory standard requiring an operator to submit or, adopt any 

dust control plan. The gravamen of the offense here is .the assertion 

that the respondent failed to utilize an acceptable engineering dust 

control measure, namely the shroud, on the bagging machine which was 

cited, and to that extent MSHA has established this allegation. However, 

since MSHA failed to _sample or test the ruff-buff product, and since 

I have concluded that such tests were required to establish that the product 

was in fact a harmful airborne contaminant within the meaning of MSHA's 

air quality standards at the time the citation issued on May 7, 1981, 

the fact that the shroud was not on the machine makes no difference. In 

short, I believe that MSHA must prove that a contaminant is harmful within 

the meaning of its standards as part of its requirement that an operator 

take appropriate control measures. 

ORDER 

In view of the foregoing findings and conclusions, Citation No. 0501241, 

issued by Inspector Lalumondiere on May 7, 1981, charging the respondents 

with violations of 30 CFR 57.5-5, IS VACATED, and MSHA's proposals for 

assessment of civil penalties against the named respondents in these proceedings 

ARE REJECTED, and these proceedings are DISMISSED. 

1139 
Postscript 

In my vi·ew, the record in this ca,se is an example of the futility 

of MSHA's silica dust enforcement efforts at the plant in question, and 

citing the plant manager and a bagging machine that is seldom used is 

not going to solve the problem. The lack of viable mandatory standards 

to require the respondent to adopt a dust control plan which can be enforced, 

as well as the lack of an enforceable mandatory standard requiring the 

respondent to adopt and maintain a dust clean-up program, has resulted 

in protracted piece-meal enforcement spanning a period of some ten years. 

Subsequent to the 1979 NIOSH study and plant closure, MSHA's enforcement efforts have focused on individual pieces of equipment and selected 

critical occupations. Citations issued for noncompliance appear to be 

routinely extend~d for long periods of time to afford the respondent · 

additional opportunities to come up with feasible engineering controls 

or to await the results of long-delayed dust sampling. Each time a withdrawal order is issued or threatened, .the respondent manages to somehow 

come into compliance, thereby averting plant closure. 

No recent overall dust survey has been made at the plant since the 

1979 NIOSH study and_ the survey conducted by MSHA's Denver Technical 

Support Group. While I have no reason to question the particular· expertise 

of MSHA's NIOSH witnesses who testified in these proceedings, I do take 

note of the fact that Us. Morring has not been back to the plant since 

the 1979 survey (Tr. 92), and Dr. Richards has never visited the plant 

(Tr. 150). Absent any current studies or information concerning the 

apparent on-going dust problems, and absent any indication on the effect 

of respondent's dust control efforts, as recognized by MSHA's own technical 

support evaluation, as of the date of the 1981 date of the citations in 

question in these proceedings, MSHA's attempts to achieve realistic 

compliance by focusing on the plant manager hired in 1980, and one isolated 

bagging device seems to be an exercise in futility. In my view, respondent's 

irregular use of the cited ruff-buff machine, and the payment of a civil 

penalty on behalf of its plant manager, is an insignificant price to pay 

for a dust problem which this record suggests has been present since the 

day the plant began operation in 1973. 

~Ko~~ Administrative Law Judge 

Distribution: 

J. Philip Smith, Esq.,, U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Malachy J. Coghlan, Esq., 9008 S. Hamilton, Chicago, IL 60620 (Certified 

Mail) 

/slk 

1140 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

C & 0 MATERIALS CORPORATION, 

Respondent 

DECISION 

Docket No: CENT 81-101-M 

A/O No: 34-00508-05008 

Wigley Quarry and Mill 

Appearance: Frances Valdez Valdez, Esq., Office of the Solicitor, 

U.S. Department of Labor, 555 Griffin Square Building, 

Dallas, TX 75202 

Before: 

Mr. Don C. Cook, President, C & 0 Materials Corporation, 

P.O.B. 274, Fittstown, OK 74821 

Judge Moore 

Approximately 4 years ago the combination imminent danger order and 

citation (hereinafter citation) that is involved in this case was issued 

to respondent along with a number of other citations. All of the other 

citations have been disposed of in one way or another but this citation 

got sidetracked and the assessment process took about 2 years. Respondent 

sees something sinister in this delay. He thinks the inspector and 

MSHA are .trying to harass him. 

I find that there was no attempt by the inspector, MSHA or the 

Solicitor's office to harass respondent. It was an oversight. 

Respondent plant crushes limestone into gravel and the citation was 

issued because the inspector saw and photographed two men removing rocks 

from the crusher feeder and the crusher was de-energized in the sense 

that the switch was off but there was no lock on the switch as required by 

30 C.F.R. 56.12-18. The standard requires that when work is being done 

on electrical equipment the equipment be de-energized and that the switch 

be locked in the "off" position with the key in the possession of the 

miners working on the equipment. It was the inspector's opinion that the 

feeder was of a type with moving plates forming a metallic belt and ~hat 

if both the feeder and crusher were energized by someone the two miners 

would be carried into the crusher and killed or injured. 

Complainant's exhibit 3 is the photograph that the inspector took of 

two men in the feeder. The photograph is deceptive in that it appears that 

1141 
the two men ore down in a hole at the end of the feeder. Actually, 

they are crouched down in a grizzly (similar to a cattle guard) which 

the smaller stones fall through. This grizzly is on the same level and 

a part of the vibrating feeder system used by respondent. Nothing 

moves the rocks toward the crusher but th~ vibrations. If the feeder 

had been turned on while the men were standing on the grizzly they would 

have felt the vibrations but I accept respondent's testimony that they 

would not be pushed toward the crusher. 

The entrance to the crusher was guarded by several heavy chains and 

the rock to be crushed normally passes through these chains and then 

falls an unspecified number of feet into the impact crusher. A drawing 

was made by respondent of the operation of the crusher and it was 

received as respondent's exhibit No: R-5. After the hearing respondent 

submitted manufacturer's drawing of the equipment. 

According to respondent the crusher can not be accidentally started. 

Two switches have to be closed in sequence and a button held in for 

thirty seconds before the crusher will operate. In these circumstances, 

if the imminent· danger were before me on review, I would make a finding 

of no imminent danger, and vacate the order. No one disputed respondent's 

testimony that if the feeder were in operation it would merely tingle 

the miner's feet rather than move them through the chains and into the 

crusher. I find the chance of injury remote. I can readily see, however, 

how the inspector, thinking that a moving metal belt was involved would 

have had concern for the safety of the miners. 

The citation was abated by putting a lock on one of the switches that 

energizes the crusher. As respondent points out, the men were not working 

on the crusher, they were working on the feeder. But even though there 

are two separate pieces of equipment with separate switches, they are 

joined together and work together and I think it reasonable to consider 

the crusher and its feeder as a unit of electrical equipment that the 

miners were working on when they removed large rocks from the grizzly 

at the entrance to the crusher. 

Under this interpretation, despite the lack of hazard, the miners 

were working on a piece of electrical equipment and the equipment was 

not de-energized and locked out as required by the standard. 

A standard identical to the one involved in this case, but not 

concerned with crushed rock, was considered by the United States Court 

of Appeals for the Ninth Circuit in Phelps Dodge Corporation vs. Federal 

Mine Safety and Health Review Commission,681 F 2d. 1189 (1982). In that 

case the Court found that the standard was designed to protect against 

electrical hazards not physical hazards, and it referred to the "fair 

warning" doctrine. Under that doctrine a standard is unconstitutionally 

vague if it fails to give "fair warning" as to what is prohibited. I read the 

1142 
opinion to hold that the standard is unconstitutionally vague except · 

to the extent that it is applied to protect against injury from electrical 

shock. */ This is more than a mere interpretation of a safety standard. 

It is a ;tatement that if the standard does not mean what the Court 

thinks it means, then it is unconstitutional. The Court found that 

Judge Merlin and the Secretary had abused their discretion in applying the 

standard to non-electrical hazards. 

The Commission and ultimately the Court~ will have to decide the 

extent to which the Commission is bound by an unconstitutionality finding 

of a United States Circuit of Appeals. I am going to follow the Ninth 

Circuit holding and dismiss this case. I will make the findings, however, that there was good faith abatement, that although the mine has a 

moderate history of violations it is smaller than average, and that the 

gravity and negligence involved were extremely low. Were it not for the 

Ninth Circuit opinion I would have found a violation and assessed a 

penalty of $50. 

The citation portion of the combined citation and imminent danger 

order is VACATED and this case is DISMISSED. 

~C9ll~~. Charles C. Moore, Jr., 

Administrative Law Judge 

Distribution: Certified Mail 

Frances Valdez Valdez, Esq., Office of the Solicitor, U.S. 

Department of Labor, 555 Griffin Square Building, Suite 501 

Dallas, TX 75202 

Mr. Don Cook, President, C & 0 Materials Corporation, P.O. Box 

274, Pittstown, OK 74842 

• 

!:_/ In MESA vs. Kaiser Steel Corporation, 3 FMSHRC 2463 (November 3, 1981) 

the Commission considered a similar, but not identical, provision 

of the Coal Mine Act. 

114J 

/db 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 15, 1983 

WES'I'MORELAND COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

NOTICE OF CONTEST 

Docket No. WEVA 83-140-R 

Order No. 2140708 

2/18/83 

Hampton No. 3 Mine 

ORDER OF DISMISSAL 

On April 4, 1983, Westmoreland Coal Company filed a 

Notice of Contest of the above-captioned order. On April 13, 

1983, the Solicitor filed a motion to dismiss the notice of 

contest for untimely filing. 

The Solicitor's motion explained that the order was 

received by the operator on February 18, 1983. The Solicitor 

cited section 105(d) of the Act which provides that a notice 

of contest to an order be filed within 30 days of its 

receipt. Based thereon the Solicitor argued that since the 

order was not contested until March 31, 1983 1/, it was not 

filed within the requisite 30-day period. -

The Solicitor's motion to dismiss must be granted. 

Section 105(d) of the Act is clear in directing that an 

operator contest issuance of an order within 30 days from 

the order's receipt. 29 C.F.R. § 2700.20. Island Creek 

Coal Company, 1 FMSHRC 989 (August 3, 1979) affirming 

PIKE 79-18 (January 30, 1979) reported at 1 MSHC 2143-2144. 

In this case, the operator waited 41 days before mailing the 

notice of contest. 

1/ The notice of contest was mailed to the Commission and 

the soiicitor by certified mail on March 31, 1983 and 

received by the Commission on April 4, 1983. 
Distribution: Certified Mail. 

F. Thomas -Rubenstein, Esq., Westmoreland Coal Company, P.O. 

Drawer A & B, Big Stone Gap, VA 24219 

David E. Street, Esq., Office of the Solicitor, U. S. 

Department of Labor, Rm. 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 

1145 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUN 161983 

PITTSBURG & MIDWAY COAL 

MINING CORPORATION, 

Application for Review 

Applicant 

v. 

Docket No: WEST 82-131-R 

Order No: 1016966; 2/24/82 

Und. Citation No. 1016965; 5/23/82 

Edna Strip Mine 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, 

Respondent 

SECRETARY OF LABOR, et al 

Petitioner 

Civil Penalty Proceeding 

v. 

Docket No: WEST 82-170 

A/O No: 05-00303-03015 H 

Edna Strip Mine 

PITTSBURG & MIDWAY COAL 

MINING CORPORATION, 

Respondent 

DECISION 

Appearance: Phyllis K. Caldwell, Esq., Office of the Solicitor, 

U.S. Departmen.t of Labor, 1961 .Stout Street, Rm. 1585, 

Denver, CO 80294, for the Secretary of Labor, 

Before: 

John A. Bachman, Esq., The Gulf Companies, 1720 So. 

Bellaire Street, Denver, CO 80222 for the Operator, 

Pittsburg and.Midway Coal Mining Corpn., 

Judge Moore 

After inspecting the mine on February 23 and 24, 1982, Inspector 

Horbatko issued the imminent danger order involved in this review proceeding 

and civil penalty case. In it he charged a violation of 30 C.F.R. 

77.1000 because the operator was not in compl~ance with its ground 

control plan. That section of the regulation states: 

"each operator shall establish and follow a ground 

control plan for the safe control of all high walls, 

pits and spoil banks to be developed after June 30, 1971 which 

shall be consistent with prudent engineering design and will 

insure safe working conditions. The mining methods employed 

by the operator shall be selected to insure high ~Jall anp 

spoil bank stability." 

1146 
It should be noted that unlike ventilation plans and roof control plans 

ground control plans do not require the approval of MSHA. On Mci.rch 9, 

1982 the inspector amended the order to add several charges and change 

the violation from Section 77.1000 to Section 77.1002. Section 77.1002 

provides: 

"when box cuts are made, necessary precautions shall be taken 

to minimize the possibility of spoil material rolling into the 

pit. II 

After the civil penalty suit was filed MSHA filed a motion to plead 

in the alternative a violation of either section 77.1000 or 77.1002. The 

operator did not oppose the motion and the issues are therefore, did the 

operator violate either 30 C.F.R. 77.1000 or 30 C.F.R. 77.1002 and did 

an imminent danger exist? 

I am convinced from MSHA Exhibit 4, the mining dictionary ±./ 

and the testimony at the trial, including that of the inspector, that 

the area involved in this imminent danger order was not a box cut. 

Thus, Section 77.1002 has nothing to do to do with the area of the mine 

involved in this closure order. ·The box cut is the initial cut involving 

two high walls, and the spoil has to be dumped on to one of these high 

walls. This operation d±d begin with a box cut but that was thirteen 

pits earlier and long ago. The charge that Section 77.1002 was violated 

is DISMISSED. 

The gro~nd control plan filed by the operator in 1977 requires a 

fifty foot pit width and states that it proposes a spoil bank angle of 

1-1/4 to 1 which is the same as 38°. The wording of the plan is peculiar 

in that fifty feet is a required width but the proposed angle of the 

spoil bank is merely a goal. There are two seams of coal being mined at 

the Edna Strip.Mine. The top seam is about 75' underground and is 5-1/2 

feet thick. Ten feet below that is another 2' seam of coal. The operator 

first mines the top seam for the entire length of the pit and then goes 

back and shoots the 10 feet of parting material and removes that to get 

to the lower 2' coal seam. The order herein is concerned only with the 

mining of the top seam. 

The pit is mined from west to east and there is a station marker 

every 100 feet. The station numbers get higher as you approach the east 

end of the pit. The area of the mine closed by the order is "east of 

survey station 18, off ramp number 5, for approximately 150' to the end 

of the pit." There was a great deal of testimony concerning the condition 

of the mine to the left .'(west) of survey station 18 and a slump that had 

occurred there three days before the order was issued. As far as this 

order is concerned, however, the relevant area of thP- pit is. east of 

station 18. The inspector saw large rocks that had fallen off the high 

wall east of station 18 and these may have been pulled down by the 

dragline rather than having fallen out of their own accord. 

This is a standard strip mine operarion. The dragline rests on the 

±./ "A Dictionary of Mining, Minerals and Related Terms." 
bench and removes the overburden from the south side of the pit and 

drops it on to the spoil bank to the north. After the dragline has 

moved some 200 1

· east of a particular section the drillers come in and 

drill the coal, then the.blasters shoot the coal and the coal is then 

loaded and hauled out of the pit. By this time the dragline has removed 

the overburden from another section and the operation repeats itself 

until the east end of the pit is reached. There was some question as to 

the exact location of the dragline when the order was issued, but it was 

somewhere on the edge of the branch at the east end of the pit. At the 

time the order was issued the dragline was attempting to remove the 

overburden east of station 18 but the spoil kept falling back into the 

pit. When the dragline operator tried to remove the tow of the spoil, 

other spoil would roll into the area, and he was having difficulty in 

finding a place to drop the spoil. This was caused by the fact that he 

had dumped high spoil on the right hand side and could not dump over it 

or reach over it to dump, and a road was hampering his ability to dump 

even if he swung a 270° arc to his left. He asked the inspector if he 

had any suggestions. The inspector had none and on measuring the angle 

of the spoil bank with a level, he found the bank steeper than 40°. He 

could see that the width of the pit was very narrow in the area where 

the dragline was working. While admitting there was no innninent danger 

at the time he actually issued the order he thought one would be created 

in a short time. When questioned about the term "imminent danger" he 

said it could be a danger that is about to happen or could be "down the 

road aways." The Solicitor's attorney brought out the definition pronounced 

by the Interior Department's Board of Mine Operations Appeals ~o the 

effect that death or injury might occur before the condition can be 

abated "if normal mining practices continue." 

The operator's witnesses testified that if they had been unable to 

solve the problem with the dragline they intended to put a bulldozer on 

top of the spoil bank and shove the spoil down toward the pit to create 

a more shallow bank. To some- extent the spoil bank 11ad been'.scaled down 

by the dragline. The next step would have been to try to remove the 

spoil off of the pit bottom with bulldozers and haul it to the other end 

of the pit. The inspector thought that would be a very uneconomical way 

to mine this area. There was, however, about $50,000 worth of coal east 

of station 18. 

The theory advanced by counsel for MSHA in its closing argument, 

was that the operator wanted that coal so badly that he was going to 

bring his drills and blasters and trucks and operate on top of the 

boulders and unconsolidated material that had fallen down from the spoil 

bank. That makes no more sense to me than it did to the mine operator. 

If the operator did try to get its drills and blasters and bulldozers 

and trucks to operate in the area east of 18 before the area had been 

properly prepared for such activities an innninent danger would exist. 

But that is not the normal mining practice and there is no evidence that 

respondent intended to mine in that manner. 

While, as stated earlier, the inspector did admit on cross examination 

1148 
that there was no imminent danger at the time he issued the order, it 

was his earlier testimony that both the imminent danger and the violation 

resulted from the fact that the operator had not complied with its 

ground control plan. The spoil bank was not at the proper angle east of 

station 18 and the pit was less than 50' in width. Considering the 

nature of a dregl:i.ne operation, when the dragline first gets to the top 

of the coal seam, the pit is necessarily only the width of the dragline 

which in this case was 10 or 12 feet. This creates neither an innninent 

danger nor a violation. The ground control plan must be interpreted to 

mean that the pit should be 50' wide before the drillers, blasters and 

loaders enter the area. No one entered the area in this case, and the 

order was issued while the operator v!as still trying to clear the pit 

area east of station 18. If the operator had tried to enter the area 

east of station 18 to mine, before the pit had become 50' wide, it "t·muld 

have been a violation of its ground control plan. Whether an innninent 

danger existed would depend en the likelihood of rocks falling off the 

spoil bank rather than whether or not the ground control plan had been 

violated. I find there was no imminent danger and there was no violation. 

It is interesting to note that at the present time the ground control 

plan under which this pit is operated allows a width of from zero to 150 

feet and a spoil bank angle of 45°. 

The order is vacated and these two cases are DISMISSED. 

With respect to Citation No: 1016965, an examination of the "Application 

for Hearing" reveals that the company did desire to contest both this 

citation and the previously discussed withdrawal order. If our docket 

office had been aware of that, it would have assigned two separate 

docket numbers. It is only in civil penalty cases that multiple citations 

and orders are assigned the same docket number. 

Through accident or oversight Pittsburgh paid the penalty which 

resulted from this citation ~nd while there was testimony concerning 

this alleged violation at the trial the government did not try to uphold 

the citation and I considered such testimony as background information. 

At page 232 of the transcript the government attorney specifically 

stated that the citation and standard 77 C.F.R. 1713 was not involved in 

this case. Certainly the fa~t that the company had paid the assessment 

would lead government counsel to believe that the citation was not being 

contested. 

Without deciding whether a mining company has a right to a hearing 

concerning the validity of a citation even though it has paid the assessment, 

I will hold that where the assessment is paid through accident or oversight, 

and where the clear intent to challenge the citation is apparent, that 

the company did not waive its right to a hearing on the validity of the 

citation. Nevertheless, the record as it stands is not adequate for me 

to make a decision, but on the other hand I do not.want to hold up the 

decision as to the order. I will therefore separate the two notices of 

contest and assign a different docket number to the contest of the 

citation. It will be WEST 82-131-R-A. If the company still thinks a 

hearing or ruling on the citation is necessary, I will receive further 
evidence on the matter in the form of affidavits, references to the 

transcript of the hearing conducted in Glenwood Springs, Colorado, or if 

the parties desire, I will conduct another hearing. 

Pittsburgh and Midway Coal Mining Company is accordingly directed 

to advise me, within 20 days, whether it wants to pursue this matter. If 

not, I will dismiss docket No: WEST 82-131-R-A. But if the company 

indicates that it does want to pursue this matter further, the parties 

are directed to inform me whether they want the opportunity to present 

further evidence at a hearing. In this connection, if Denver, Colorado, 

is a convenient place for a hearing on the citation, I will be attending 

a conference in Denver on the 13th and 14th of September and could 

probably hear this matter on Thursday or Friday of that week. 

efldJ4, c 977~t' Charles C. Moore, Jr., 

Administrative Law Judge 

Distribution: By Certified Mail 

/db 

Phyllis K. Caldwell; Esq. , Office of the Solid tor, U.S. 

Department of Labor, 1961 Stout Street, Rm. 1585, 

Denver, CO 80294 

John A. Bachman, Esq., 

Street, Denver, CO 

The Gulf Companies, 1720 So. Bellaire 

80222 

1150 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

• 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUN 2 O 1983 

RICHARD C. JOHNSTON, 

· " Complainant 

COMPLAINT OF DISCHARGE, 

D~SCRIMINATION, OR 

v. INTERFERENCE 

OLGA COAL COMPANY, Docket No. WEVA 82-236-D 

Appearances: 

Before: 

Respondent 

HOPE CD 82-23 

Olga Mine 

DECISION 

James A. Swart, Esq., Beckley, West Virginia, and 

Mary Lu Jordan, Esq., Washington, D. C. (on the brief), 

for Complainant; 

James R. Haggerty, Esq., Pittsburgh, Pennsylvania, for 

Respondent. 

• Judge Melick 

This case is before me upon the complaint of Richard C. Johnston, 

under section 105(c)(3) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801, et seq., the "1977 Act;" alleging that the Olga 

Coal Company (Olga) reduced his level of pay on or about June 18, 1981, 

in violation of his statutory rights as a miner deemed to have been 

transferred because of pneumoconiosis and therefore contrary to section 

105(c)(l) of the 1977 Act. 1/ 2/ Evidentiary hearings were held on Mr. 

Johnston's complaint in Bluefield, West Virgi~ia. 

1/ Section 105(c)(l) provides in part as follows: 

No person shall *** in any manner discriminate against *** or cause 

discrimination against or otherwise interfere with the exercise of the 

statutory rights of any miner *** in any coal *** mine subject to this 

Act because such miner *** is the subject of medical evaluations and 

potential transfer under a standard published pursuant to § 101 *** or 

because of the exercise by such miner *** on behalf of himself or 

others of any statutory right afforded by this Act. 

Y In John Matala v. Consolidat.ion Coal Company, MORG 76-53 (April 5 

1979), the Commission held that review of discrimination complaints of a 

miner based on allegations that the miner suffers from pneumoconiosis 

should be resolved under the specific statutory provisions set forth in 

section 428 of the Black Lung Benefits Act rather than under the general 

anti-discrimination provisions in section llO(b) of the Federal Coal 

Mine Health and Safety Act of 1969, the "1969 Act". That case was, 

therefore, in accordance with the provisions of section 428 of the Black 

1151 
2 

Motion to Dismiss 

At hearing, Olga renewed in a Motion to Dismiss its argument made 

in prior mo.tions that Complainant had failed to meet the t.ime deadlines 

set forth in sections 105(c)(2) and 105(c)(3) of the 1977 Act. Under 

section 105(c)(2), of the 1977 Act, the miner who believes that he has 

been discriminated against "may, within 60 days after such violation 

occurs, file a complaint with the Secretary". There is no dispute in 

this case that th~ alleged discriminatory event.; i.e., Mr. Johnston's 

reclassification from pay grade 4 to grade 1, occurred on or about 

June 18, 1981, and that Mr. Johnston did not file a complaint of discrimination with the Secretary of Labor, Mine Safety and Health Administration (MSHA), until February 16, 1982, more than seven months later. 

Whether an extension of the filing deqdline should be granted depends on whether "justifiable circumstances" exist for the delay and 

whether the operator was prejudiced by the delay. Joseph W. Herman v 

IMCO Services, 4 FMSHRC 2135 (1982). The Commiss·ion said in that case 

that the time limit might warrant extension where the miner, within the 

statutory 60 days, brings the complaint to the attention of another 

agency or to his employer, or the miner fails to meet the time limit 

because he is misled as to or misunderstands his rights under the Act. 

In this case, Johnston does not deny that as early as June 18, 

1981, he knew he could have filed a discrimination complaint with MSHA. 

His only explanation for not doing so until February 16, 1982, was that 

he was advised.by the Union Safety Committeeman, Leonard Sparks, that he 

should first exhaust the grievance procedures under the collective 

bargaining agreement. Although the grievance procedures were apparently 

exhausted as of November 17, 1981, there is no explanation why Mr. Johnston did not even then file his complaint with,MSHA for almost three 

more months. 

The operator claims that it was prejudiced by the delay because two 

'of its witnesses were no longer its employees at the time of the hearing. It claims that a Mr. Hifk left Olga in December 1981 and resided 

at the time of hearing in South Carolina, and that a Joe Mcintyre left 

Olga in September 1982 and resided at the time of hearing about 100 

Fn. 2 cont'd. 

Lung Benefits Act, transferred to the Department of Labor for adjudication by one ·Of its Administrative Law Judges. 

The case at bar is brought, however, under the revised provisions 

of section lO~(c)(l) of the 1977 Act, and by virtue of section 10l(a)(7) 

of the 1977 Act and regulatory standards published pursuant to that section, i.e., 30 C.F.R., Part 90, effective February 1, 1981. Accordingly, this case comes within the jurisdiction of this Commission. 

1152 
3 

miles from the hearing site. Hick's testimony concerning the execution 

by Johnston of a purported waiver of his option to transfer to a low 

dust area of the mine (pursuant to former section 203(b)(2) of the 

Federal Coal Mine Health and Safety Act of 1969) may indeed have been 

relevant to this case. However, in the absence of a proffer as to the 

precise testimony to be elicited from Hick and Mcintyre and reasons for 

the non-production of the witnesses, I cannot conclude that the operator 

has been prejudiced. 

In summation, it appears that the Complainant did bring a complaint 

about his pay reduction to the attention of his employer through grievance procedures initiated on June 18, 1981, that he relied upon the 

representations of his union safety committeeman that he should first 

exhaust these procedures before filing with MSHA, and that the delay 

between the exhaustion of his grievance pro·ceedings on November 17, 

1981, and the filing of this discrimination complaint with MSHA on 

February 16, 1982, was not significant. In light of these extenuating 

factors and insufficient evidence of prejudice to the operator caused by 

the delay, I conclude that the complaint should be deemed to have been 

timely filed. 

I further find that Johnston did, in fact, satisfactorily comply 

with the filing requirements set forth in section 105(c)(3). It is 

undisputed that the MSHA letter dated March 16, 1982, finding no discrimination, was received by Johnston on or about March 21, 1982. It is 

also undisputed that on April 15, 1982, Johnston filed with the Commission a letter expressing his disagreement with the MSHA decision. While 

another Administrative Law Judge has ruled that the filing of that complaint had not been perfected until July 2, 1982, I find for the limited 

purpose of tolling the period of limitations that Mr. Johnston's filing 

was constructively accomplished on April 15, 1982, the date his letter 

was filed with the Commission. Accordingly, filing for this purpose was 

accomplished within the 30 days required by section 105(c)(3). The 

operator's Motion to Dismiss is accordingly denied. 

The Merits 

As clarified in Mr. Johnston's post hearing brief, his complaint is 

limited to an assertion that he was entitled to the rights of a "transferred miner" under section 101 (a) (7) of the 1977 Act 1./ and that Olga 

]_/ Section 10l(a)(7) of the 1977 Act authorizes the Secretary of Labor 

to promulgate mandatory health and safety standards to protect miners 

against exposure to certain hazards. In particular, that section provides as follows: 

Where appropriate, the mandatory standard sha.11 provide that where a determination is made that a miner may 

suffer material impairment of health or functional capacity by reason of exposure to the hazard covered by such 

1153 

• 
4 

interfered with those statutory rights in violation of section 105(c)(l) 

of the 1977 Act by reducing his rate of pay in June 1981 from grade 4 to 

grade 1, a reduction at that time of $5.30 per day. 4/ There is no 

dispute that Mr. Johnston's wage rate was in fact reduced as alleged. 

Moreover, there is no dispute that if Mr. Johnston had been in fact 

transferred in accordance with the provisions of section 10l(a)(7) of 

the 1977 Act (and in accordance with30 C.F.R. Part 90 of the regulations), such a reduction in pay would have been a violation of both 

section 10l(a)(7) and an unlawful interference ~ith those statutory 

rights under the provisions of section 105(c)(l). The dispute herein 

accordingly centers on the question of whether in June 1981 Mr. Johnston 

met the criteria to be a "transferred miner" under section 10l(a)(7) of 

the 1977 Act (or a "Part 90" miner under the regulations promulgated 

pursuant to that section; i.e., 30 C.F.R. Part 90). 

A transferred or "Part 90" miner is defined in 30 C.F.R. § 90.2 as 

"a miner employed at an underground coal mine or at a surface work area 

of an underground coal mine who has exercised the option under the old 

section 203(b) program [former section 203(b) of the Coal Mine Health 

and Safety Act of 1969] or under'section 90.3 (Part 90 option; Notice of 

Eligibility; exercise of Option) of this Part to work in an area of a 

mine where the average concentration of respirable dust in the mine 

atmosphere during each shift to which that miner is exposed is continuously maintained at or below 1.0 milligrams per cubic meter of air; and 

who has not waived these rights." Johnston argues that he should be 

deemed to have exercised the option in 1972 under the old section 203(b) 

program and that he accordingly should have been brought under the new 

regulations as a transferred "Part 90" miner. Thus he argues his ra:te 

of pay could not legally have been reduced. 

There is no dispute that Mr. Johnston had been notified in accordance with former section 203(b) of the 1969 Act of his rights to transfer to another area of the mine because of X-ray evidence showing his 

development of Category 2 Simple Pneumoconiosis. In particular, he was 

notified by letter dated November 30, 1970, from the Department of 

Health, Education and Welfare, by letter dated October 28, 1971, from 

the Federal Bureau of Mines, and by letter dated November 12, 1973, from 

the Federal Mining Enforc~ment and Safety Administration. While 

Fn. 3 cont'd. 

mandatory standard, that miner shall be removed from such 

exposure and reassigned. Any miner transferred as a result 

of such exposure shall continue to receive compensation for 

such work at no less than the regular rate of pay for miners 

in the classification such miner held immediately prior to 

his transfer. · 

4/ Johnston does not allege that he was discriminated against because 

he was "the subject of medical evaluations and potential transfer" under 

section 105(c)(l). See fn. 1/ supra. 

1154 
5 

Mr. Johnston initially sought to exercise his transfer rights in January 

1972, he apparently changed his mind and executed a written waiver of 

these rights on February 24, 1972 (Exhibit 0-1). It is undisputed that 

he never since that date has made any effort to exercise his transfer 

rights. 

The evidence shows that in January 1972 Johnston was offered the 

option to tran.sfer to a less dusty area on the "hoot owl" or night 

shift. Johnston was then working the day shift.-and, according to him, 

he elected to waive the transfer option rather 'than transfer to the 

night shift. 2_/ According to the regulations then in effect, Johnston 

did not, upon exercising the transfer option, have the choice of remaining on his regular shift. See 36 F.R. 20601, October 27, 1971. Johnston's contention that his waiver of the transfer option was invalid or 

"involuntary" because he was not offered a.transfer to the day shift is 

accordingly without merit. 

While subsequent regulations issued pursuant to section 10l(a)(7) 

of the 1977 Act did require that the mine operator transfer the miner 

exercising his transfer rights to a position on the same shift or shift 

rotation on which he was employed immediately before the transfer, those 

regulations did not take effect until February 1, 1981. See 46 F.R. 

5585, January 21, 1981. §__/ 

Within this framework of evidence, it is clear that Johnston's 

waiver of his transfer rights in February 1972 was not invalid but was a 

completely voluntary and intentional relinquishment of the right to 

transfer as it then existed. Johnson v. Zerbst, 304 U.S. 450 (1938). 

Accordingly, Johnston cannot be "deemed" to have exercised his transfer 

rights. He has not therefore met his initiaLburden of proving that the 

reduction in his pay grade in June 1981 was ir{ violation of sections 

10l(a)(7) or 105(c)(l) of the 1977 Act. Secretary ex rel. Fasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (1980), rev'd on other grounds sub 

nom. Consolidation Coal Co. v. Secretary, 663 F.2d 1211 (3d Cir. 1981); 

Boitch v. F11SHRC, 704 F.2d 275 (6th Cir. 1983), reh'g granted on other 

grounds, May 23, 1983. 

2_/ While Johnston also alleged at hearing that he turned down the 

transfer option because he believed there was just as much dust on the 

"hoot owl" shift, the evidence does not bear this out. The uncontradicted testimony of Mine Superintendent Dwight Strong was that the "hoot 

owl" shift was then a non-producing maintenance shift with a record of 

lower dust levels. 

&_/ The evidence in this case is insufficient to indicate when Mr. 

Johnston first knew of this revision in the regulations or that he 

failed to exercise his transfer option because he did not know of these 

revisions. On the record before me I am unable to speculate why he did 

not exercise the option after these revisions. 

1135 
6 

The Complaint herein is 

Distribution (by certified mail): 

James A. Swart, Esq., United Mine 

Raleigh Road, P.O. Box Sll, Beckley, 

e dismissed. 

Chilson Avenue at 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 Fifteenth 

Street, N.W., Washington, DC 20005 

James R. Haggerty, Esq. , Olga Coal Company'· 3 Gateway Center, 9 North, 

401 Liberty Avenue, Pittsburgh, PA 15263 

nw 

1156 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 22, 1983 

KENTLAND-ELKHORN COAL CORP., 

Applicant 

Application for Review 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

and 

UNITED MINE WORKERS OF AMERICA: 

Respondents 

Docket No. PIKE 78-399 

Order No. 063798; 6/23/78 

Feds Creek No. 1 Mine 

ORDER OF DISMISSAL 

The above-captioned matter has been reassigned to the 

undersigned administrative law judge. 

This proceeding is an application for review of an 

order filed by Kentland-Elkhorn Coal Corporation. The 

operator has filed a motion to withdraw its application for 

review. 

Accordingly, it is hereby ORDERED that this matter 

is DISMISSED. 

,, 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: By certified mail. 

C. Lynch Christian, III, Esq., Jackson, Kelly, Holt & O'Farrell, 

P. O. Box 553, Charleston, WV 25322 

Leo J. McGinn, Esq., Office of the Solicitor, U. S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th St., N.W., 

Washington, DC 20005 

115'7 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 24, 1983 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. PENN 81-139 

A.C. No. 36-00808-03056 

v. Russellton Mine 

REPUBLIC STEEL CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

David E. Street, Esq., Office of the Solicitor, 

U. S. Department of Labor, Philadelphia, 

PBnnsylvania, for Petitioner, MSHA; 

Bronius K. Taoras, Esq., Kitt Energy Corporation, 

Meadow Lands, Pennsylvania, for Respondent, 

Republic Steel Corporation. 

Judge Merlin 

Statement of the Case 

This case is a petition fat the assessment of a civil 

penalty filed by the Secretary of Labor against Republic 

Steel Corporation for an alleged violation of 30 C.F.R. 

§ 75.604(b). 

The hearing was held as scheduled on March 15, 1983. 

Documentary exhibits, oral testimony and oral arguments were 

presented by the parties. At the conclusion of the hearing 

both parties waived the filing of written briefs and agreed 

I should render a decision based upon the transcript of the 

hearing and documentary evidence (Tr. 102-103). 

1158 
The Mandatory ~tandard 

Section 75.604(b) of the mandatory standards, 30 C.F.R. 

§ 75.604(b) provides as follows: 

§ 75. 604 Pe.rmanent splicing of trailing 

cables. 

When permanent splices in trailing 

cables are made, they shall be: 

* * * * * 

(b) Effectively insulated and 

sealed so as to exclude moisture. 

The Cited Condition or Practice 

Citation No. 843121 cites a violation of 30 C.F.R. 

§ 75.604(b) for the following condition: 

A permanent splice installed in the 

trailing cable on shuttle car Serial No. 

11341 being used in the (012) 4 west off 10 

mains section was not effectively sealed so 

as to exclude moisture and a seven inch long 

area had the outer jack removed and was not 

reinsulated to the same degree as the remainder 

of the cable. 

Stipulations 

At the hearing, the parties agreed to the following 

stipulations which were accepted (Tr. 5-11, 13): 

1. Republic Steel Corporation was the owner and 

operator of the Russellton mine when the citation 

at issue in this case was written. 

2. The operator and the Russellton Mine were subject 

to the jurisdiction of the Federal Mine Safety 

and Health Act of 1977 at the time the citation 

was written. 

3. The presiding administrative law judge has 

jurisdiction over this proceeding. 

1159 
4. The inspector who issued the subject citation 

was a duly authorized representative of the 

Secretary. 

5. A true and correct copy of the subject citation 

was properly served upon the operator. 

6. Imposition of any penalty in this proceeding 

will not affect the operator's ability to 

continue in business. 

7. The alleged violation was abated in good faith: 

8. The mine was medium in size during the year prior 

to the issuance of the subject citation. 

9. The Russellton Mine has been out of production 

since October 1982, although it has not been 

sealed and is being maintained for possible 

future production. 

10. The operator was medium in size during the year 

prior·to the issuance of the subject citation. 

11. The condition or practice stated in the body 

of the ~ubject citation, other than the fact that 

the shuttle car was being used, existed. The 

operator does not agree that the shuttle car 

was being used. 

12. During the two years prior to the issuance of 

the subject citation, the operator and the mine 

had an average history of violations of 30 C.F.R. 

§ 75.604(b). 

13. All witnesses are accepted generally as experts 

in coal mine health and safety. 

Discussion and Analysis 

This case presents a fundamental conflict in the 

evidence between MSHA and the operator which can be 

resolved only by a determination as to the credibility of 

those who testified. The inspector who issued the subject 

citation testified that the supervisory inspector who was 

accompanying him on the inspection told him when they were 

in the face area to return outby and to look at a defective 

1160 
splice in the subject shuttle car (Tr. 14, 33-34). The 

issuing inspector stated that only the shuttle car operator 

was present when he arrived .at the shuttle car and inspected 

the splice (Tr. 21, 25). His inspection 0£ the cable 

revealed a splice with a sleeve that was not bonded to the 

outer jacket so as to exclude moisture (Tr. 14-15). The 

cable had been pulled off its reel and was lying on the 

ground (Tr. 23-24). He testified that the violation was not 

being corrected when he first observed it, that the splice 

had not been cut out of the trailing cable and that it was 

still a part of the cable (Tr. 21, 24). 

The supervisory inspector testified that he saw the 

shuttle car operator pulling the cited trailing cable off 

the reel and that he helped her with this task (Tr. 45). 

While he was helping her, he saw a splice and another part 

of the cable which he thought needed attention. He said 

that he may have commented to the shuttle car operator that 

the splice looked bad (Tr. 46). He admitted that his 

recollection of this subject was not plain and he did not 

recall how long he helped her or whether they pulled the 

cable off together or alternately (Tr. 48, 98). Similarly, 

his recollection of seeing the splice was hazy. He was not 

clear about how much of the cable had been pulled off before 

the splice appeared or whether he saw the splice as it was 

being pulled off the reel rather than when it was lying on 

the ground (Tr. 49-50). He testified that he did not recall 

what he said about the splice, if anything at all (Tr. 98-lQO). 

The supervisory inspector testified that he has the authority 

to issue a citation but stated that instead he went to the 

face area and told the other inspector to go look at it 

(Tr. 46, 50-51) . 

The tempo~ary shuttle car operator had served in that 

capacity approximately six times prior to the day the subject 

citation was issued (Tr. 56). Her section foreman reminded 

her as a shuttle car operator that the general procedure was 

to remove the entire cable from the machine and inspect it 

before energizing the cable (Tr. 57, 61, 66). She stated 

that she followed the general procedure on that day (Tr. 57, 

61) . She knew the cable was not energized because she saw 

that it was unplugged and she did not plug it in (Tr. 61). 

She started to remove the cable from the reel when the 

supervisory inspector walked past her (Tr. 57-58). She 

stated that he did not help her remove any of the cable. 

She said that she would remember if someone helped her 

because it is a difficult job (Tr. 57-58, 68-70). Moreover, 

she testified that the supervisory inspector did not point 

1161 
out any deficiencies in the cable (Tr. 58-59). She pulled 

the portiop of the cable containing the defective-splice off 

the reel after the supervisory inspector passed her (Tr. 65). 

She felt she needed another opinion about the condition of 

the splice and went to alert the mechanic a few minutes 

after the supervisory inspector had walked passed the 

shuttle car (Tr. 59-60). The mechanic agreed that there was 

a problem with the splice. He went to get his equipment to 

repair it and she went to inform the section foreman of the 

problem (Tr. 60). She testified that she and the mechanic· 

next cut the defective splice out of the cable (Tr. 62). 

Then the issuing inspecto~ and several other people arrived 

at the shuttle car (Tr. 62-63). The splice was already cut 

out of the cable and was lying on the ground when the issuing 

inspector arrived and issued the citation (Tr. 63-64). The 

operator's mechanic and section foreman also testified and 

confirmed the evidence given by the shuttle car operator 

(Tr. 77-78, 89-90). 

After observing and listening to the witnesses, I 

accept all the testimony of the shuttle car operator including her evidence that the damaged splice had been cut 

out of the trailing cable of the shuttle car and that the 

cable was being.repaired before the citation was issued. 

The testimony of the shuttle car operator was clear, consistent and therefore, wholly credible. I also accept the 

testimony of the operator's other witnesses. I reject the 

insp~ctor's testimony that when he arrived to check the 

cable no abatement of the condition had begun and the 

supervisory inspector's testimony that he stopped and 

helped the shuttle car operator unreel the cable. As 

already noted the supervisory inspector's testimony was 

vague, contradictory and therefore unconvincing. .The 

evidence given by both inspectors is far outweighed by that 

given by the shuttle car operator and the operator's other 

witnesses. Since the defective splice was no longer part of 

the cable when the inspector observed the permanent splice, 

the condition described and therefore the alleged violation 

did not exist when the citation was issued. Under such 

circumstances the citation must be vacated. 

At the hearing the Solicitor argued that a violation 

still existed even if the splice was cut out before it was 

cited because the splice had been defective. He cited 

Consolidation Coal Company, 1 FMSHRC 542 (June 1979) in 

support of his position. In that case it made no difference 

that the operator had begun abatement of a roof control 

violation when the condition was cited by MSHA. However, 

there the violation remained in existence when the withdrawal order was issued. In the present case there was no 

1162 
violation at the time the citation was issued. The citation 

alleges a violation of 30 C.F.R. § 75.604(b), which requires 

that permanent splices in trailing cables be effectively 

insulated so as to exclude moisture. By the time the 

inspector issued the citation, however, the defective splice 

was no longer in the cable. 

ORDER 

Accordingly, it is ORDERED that Citation No. 843121 be 

Vacated and that the petition for the assessment of civil 

penalty be DISMISSED. 

Paul Merlin 

Chief Administrative Law.Judge 

Distribution: Certified Mail. 

David E. Street, Esq., Office of the Solicitor, U.S. 

Department of Labor, Rm. 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 

Bronius K. Taoras, Esq., Kitt Energy Corporation, 455 Race 

Track Road, P. O. Box 500, Meadow Lands, PA 15347 

1163 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

UNC MINING & MILLING, 

Respondent. 

) 

) CIVIL PENALTY PROCEEDINGS 

) 

) DOCKET NO. CENT 80-386-M 

) A/C No. 29-00573-05025 F 

) 

) DOCKET NO. CENT 80-387-M 

) A/C No. 29-00573-05026 

) 

) MINE: Northeast Church Rock Mine 

) 

_________________ ) 

DECISION 

APPEARANCES: 

Eloise V. Vellucci, Esq., Office of the Solicitor 

United States Department of Labor 

555 Griffin Square, Suite 501 

Dallas, Texas 75202 

For the Petitioner 

Wayne E. Bingham, Esq., Pickering & Bingham 

920 Ortiz N.E. 

Albuquerque, New Mexico 87108 

For the Respondent 

Before: Judge Virgil E. Vail 

PROCEDURAL HISTORY 

These consolidated cases arise under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. In each case, the Secretary seeks to 

have a civil penalty assessed~or-in alleged violation of a mandatory safety 

standard. After a date for hearing was set, the parties entered into an 

agreement to submit these cases on a written stipulation of facts and briefs 

which have now been filed. 

Based upon the entire record and considering all of the arguments of the 

parties, I make the following decision. To the extent that the contentions 

of the parties are not incorporated in this decision, they are rejected. 

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 

1164 
1n 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. 

STIPULATIONS 

The parties stipulated to the following: !._; 

UNG Mining and M,illing (herein UNC) operates an underground uranium mine 

located approximately 20 miles northeast of Gallup, McKinley County, New 

Mexico, on State Highway 566. The mine is designated as the Northeast 

Ghurchrock Mine. In December, 1979, the mine was operated on three 8-hour 

shifts a day, 6 days a week. In December 1979, 916 persons were employed. 

Of these, 650 worked underground. 

Access to the mine was through two vertical, 14-foot diameter, 

4-compartment shafts connected to two mining levels. A modified room and 

pillar method of mining was used in conjunction with diesel-powered trackless 

and track haulage systems. A blueprint of pertinent portions of the mine is 

attached hereto as Exhibit #1. Portions marked in red are those haulage-ways 

which are relevant to the instant case. 

UNG maintains an extensive inspection and safety program. In December, 

1979, UNG employed some twenty-eight persons to specifically administer mine 

safety and training, as indicated by an organizational flow chart attached. 

hereto as Exhibit # 2. This chart does not include the various 

superintendents, foremen and shift bosses who also are charged with 

responsibility for safety. 

UNG issues a safety booklet to each employee. See Exhibit # 3. Alex 

Garcia, the employee who was fatally injured in this case, received a copy of 

the safety booklet. See Exhibit 1F 4. 

As part of UNG's safety training program, employees are given tra1n1ng 

courses in mining and first aid. Employees are then tested to determine what 

1/ The parties also stipulated to eleven exhibits attached to the stipulated 

facts filed in this case. 

1165 
learning occurred. Alex Garcia after attending these training courses scored 

96% on the mining examination and 90% on the first aid examination. See 

Exhibits {F 5 and {F 6. Alex Garcia also received training from his previous 

employer Kerr McGee. See Exhibit# 7. Additionally, Garcia had received 

task training as a clam operator and a trip rider. See Exhibits # 8 and {F 9. 

In December, 1979, Garcia was also in the process of being task trained as a 

motorman. He had completed on-the-job training, which is the method employed 

for task training. 

UNC's task trainer is Zorro Davis. Davis had observed Garica (sic) 

operate the motor (underground locomotive) and determined that Garcia was a 

competent operator~ Davis had not issued Garcia a task training certificate, 

although one would have been issued after testing and based on Garcia's 

performance. 

On December 18, 1979, the following persons, among others, were employed 

on swing shift at UNC's Northeast Churchrock Mine. 

B. J. Chavez 

George Otero 

James Kepler 

Harry Morgan 

Bob Masters 

Norris Ross 

Sam Sullivan 

Alex Garcia 

level foreman 

acting level foreman 

track shift boss 

track crew 

skip tender 

shift boss 

motorman 

triprider 

Swing shift began at 4:00 p.m. At the beginning of the shift, James 

Kepler instructed Sam Sullivan and Alex Garcia that they could pull any of 

the available raises (load loose mined ore from stock piled areas). Sullivan 

and Garcia pulled a couple of trips (hauled a couple of loads of ore) from 

the 8, 10 and 11 raises to the trench (unloading area) at the No. 1 shaft. 

They then went to the number 2 raise to pull a trip. This occurred before 

5:30 p.m. On arriving at the number 2 raise Sullivan and Garcia could not 

get to the raise because ground from the top of the haulage-way had fallen on 

and blocked the track. Sullivan and Garcia left to pull other raises. They 

encountered no difficulties iri driving the Clayton 225 locomotive through the 

haulage way between the A2-A2 1.4 switch and the A2-A2 3.8 switch. 

At approximately 5:30 p.m. track shifter James Kepler walked to the 

number 2 raise and for the first time noticed the ground on the track. 

Sometime after 5:30 p.m. Sullivan and Garcia notified Kepler of the ground on 

the tracks. Nothing was mentioned concerning broken timber in the haulage 

way. There was not much ground on the track but it was enough to prevent 

passage. 

Between 5:30 p.m. and 8:00 p.m. Kepler instructed a track crew 

consisting of Harry Morgan and others to clean the ground from the tracks. 

At 8:30 p.m. Kepler walked to the number 2 raise to ascertain whether the 

track had been cleared. The track crew had not yet cleared the track. As 

Kepler was coming from the number 2 raise he met the track crew coming to 

1166 
clear the track. Kepler did not return to the number two raise with the 

track crew but· continued on his routine. 

At approximately 10:00 p.m., the track crew notified Kepler that the 

track had been cleared. Kepler in turn notified Bob Masters, the skip tender 

(person responsible at the base of the shaft for.lifting ore out of the 

mine), that the track had been cleared. Masters was so notified because 

Masters told Sullivan and Garcia where stock piled ore could be loaded. 

The last time Kepler saw Sullivan and Garcia was shortly after 10:00 

p.m., after he had been notified that the track near the number 2 raise had 

been cleared. At this time Kepler said nothing to Sullivan or Garcia. 

At approximately 11:00 p.m. B.J. Chavez, the level foreman, saw Sullivan 

and Gare ia at the trench near the No. 1 shaft. By this time, Chavez had 

heard that the track near the number two raise had been cleared. Chavez had 

heard this from Masters or others. Chavez told Sullivan he could pull the 

number 2 raise as the track was clear. Also at approximately 11:00 p.m. 

George Otero, the acting level foreman, came into the trench area. Chavez 

asked Otero if he h~d double checked the number 2 raise to make sure that the 

track was clear. Otero said he had not. Chavez said he would check the 

raise and proceeded to walk toward the raise. 

As Chavez walked toward the number two raise, he passed Sullivan and 

Garcia at the A-1 switch where they were picking up track tools. ~etween the 

A-1 switch and the 1.8 switch Sullivan and Garcia passed Chavez. They then 

stopped at the 1.8 switch to unload the track tools. While Sullivan and 

Garcia were stopped at the 1.8 switch, Chavez passed them. Sullivan and 

Garcia then passed Chavez at the Al-A2 switch. 

At 11:20 p.m. Chavez caught up with Sullivan and Garcia at the A2-A2 

1.4 switch where the Clayton 225 motor was stopped. Norris Ross, the shift 

boss, was at the A2-A2 1.4 switch at this time and Ross and Chavez talked 

about equipment. Also, Chavez told Sullivan and Garcia not to pull the 

number 2 raise until he had checked the track. 

While Chavez finished talking to Ross, Sullivan and Garcia proceeded 

from the A2-A2 1.4 switch to the A2-A2 3.8 switch with Sullivan.walking ahead 

of the locomotive and Ga-rcia driving the locomotive. Throughout the shift 

and throughout several prior shifts Sullivan and Garcia had traded off 

operation of the locomotive as part of Garcia's on the job training in 

preparation for Garcia taking over complete operation of the locomotive when 

Sullivan went on vacation. 

Chavez finished his conversation with Ross and walked toward the A2-A2 

3.8 switch. Ross went the opposite direction to the number 1 shaft. 

After Sullivan reached the A2-A2 3.8 switch he walked on ahead to the 

location of the ground fall. Garcia waited with the locomotive at the A2-A2 

3.8 switch. Sullivan observed that the ground fall had been cleared from the 

track but that the wire mesh support above the track had a hole in it through 

11 G 'I 
. which the ground had broken and fallen on the track and that some rock was 

still hanging in the mesh. This had not been repaired by the track crew. 

After Sullivan observed the hole in the mesh he yelled the status to 

Garcia. Shortly thereafter, Chavez arrived at where Garcia was stopped with 

the locomotive. Garcia reported to Chavez what Sullivan had reported to 

Garcia. Chavez directed Garc'ia. not to pull the number 2 raise. Garcia then 

motioned to Sullivan to board the last car pulled by the locomotive and 

Garcia and Sullivan proceeded toward the A2-A2 1.4 switch. 

Chavez waited. for the locomotive and cars to pass him. As Sullivan 

passed Chavez, Chavez instructed Sullivan to pull the number 14 raise. 

Chavez then walked to where the ground fall had occurred and found it as 

described by Garcia. 

As Chavez walked from the A2-A2 1.4 switch to the A2-A2 3.8 switch, he 

noticed no broken timber. This was the first time Chavez had been through 

the area on this shift. Likewise Sullivan noticed no broken timber as he 

walked the track from the A2-A2 1.4 switch to the A2-A2 3.8 switch at 

approximately 11 :20 p.m. Sullivan had noticed a broken timber the week prior 

to December 18, 1979, but this had been replaced upon finding it broken. 

After Chavez observed the area of the ground fall and the mesh, he 

walked past the A2-A2 3.8 switch toward the A2-A2 1.4 switch and observed for 

the first time one broken timber. 

As Sullivan and Garcia proceeded from the A2-A2 3.8 switch to the A2-A2 

1.4 switch Sullivan observed for the first time one broken timber.. Garcia 

was operating the locomotive and Sullivan was riding in the last car. 

Sullivan could not at all time see Garcia. As the train approached the A2-A2 

1.4 switch, Sullivan sensed something was wrong as the train appeared to be 

moving only at a coasting slow speed. 

Sullivan, when able to do so, climbed over the cars to the locomotive. 

By this time, Chavez had caught up with the train and observed Sullivan 

climbing over the cars to the locomotive and putting the brake on the 

locomotive. Chavez likewise climbed over the cars to the locomotive and 

joined Sullivan, where they found Garcia has sustained a head injury which 

eventually reiulted in his death. 

Garcia was given first aid which included mouth to mouth respiration by 

Chavez, and was transported to the hospital in Gallup, New Mexico where he 

died at 1:05 a.m. on December 19, 1979. 

At 2:00 a.m. on December 19, 1979, UNC's Manager of Safety, Kay Kofford 

was notified by UNC's Inspector of Mines Lolo Martinez that an accident 

involving Alex Garcia had occurred. Kofford innnediately proceeded to the 

Northeast Churchrock Mine, went into the mine to the beginning of the 

haulage-way between the A2-A2 1.4 switch and the A2-A2 3.8 switch and secured 

1168 
the area. No one had been in the area from the time of the accident until 

Kofford secured the area. 

At 9:00 a.m. on December 19, 1979, MSHA inspectors Charles H. Sisk, Ned 

D. Zamarripa, and Francis T. Csepregi arrived at the Northeast Churchrock 

Mine. They along with UNC employees and Charles D. Lunger from the New 

Mexico Mine Inspector's Office entered the mine, proceeded to the location of 

the accident and began inspection at approximately 10:00 a.m. 

The investigation revealed that no one had been in the area since the 

time of the accident. The Clayton 225 locomotive was at the A2-A2 1.4 

switch. 

MSHA inspectors directed that measurements be taken. From the front of 

the locomotive to where Garcia's hard hat was found measured 231 feet. The 

highest point on the locomotive measured 61 inches from the track rail. The 

top of the locomotive is dome shaped with the sides of the top of the 

locomotive being less than 61 inches from the track rail. See Exhibit # 10. 

The locomotive measured 42 inches wide. At the front of the locomotive 

is a compartment from which the motorman operated the locomotive. Within the 

compartment is a builtin seat. The top of the front of the locomotive 

measured 54 inches from the track. See Exhibit # 10. One broken timber cap 

was found. 

At the location of the timber cab (sic), next to the broken timber cap, 

the haulage way measured 82 inches across the bottom, 76 inches across the 

top and 61 1/2 inches from the top of the rail to the top of the haulage way. 

The broken timber cap measured 57 inches from the track rail at its lowest 

point which was on the side of the haulage way. The other side of the broken 

timber cap measured 62 inches from the track rail. Timber caps to either 

side of the broken timber cap and the cap next to the broken timber cap 

measured greater than 62 inches from the track rail and up to 96 inches or 

more at the switches. The timbers were not marked with warning signs or 

devises (sic). 

During the course of the inspection, MSHA inspectors directed Sam 

Sullivan to dirve (sic) the motor through the area between the A2-A2 1.4 

switch and the A2-A2 3.8 switch and drop off the cars at the A2-A2 3.8 

switch. Sullivan then was directed by MSHA inspectors to repeatedly drive 

the locomotive between the A2-A2 1.4 switch and the A2-A2 3.8 switch. MSHA 

inspectors and UNC supervisory personnel repeatedly walked through the area 

during the course of the inspection. After measurements were taken, Kay 

Kofford was allowed to wedge a stull (vertical support) under the broken 

timber so it would not drop further down. This was the first corrective 

action which was taken. Prior to, during and after the inspection no ground 

fell in the haulage-way between the A2-A2 1.4 and the A2-A2 3.8 switches. 

When enlargement of the haulage way began in late December no ground had 

fallen. 

After the inspection, the area was again closed to access. The area was 

opened again after the entire distance between the A2-A2 1.4 switch and A2-A2 

1169 
3.8 switch was enlarged. UNC spent six months and $214,500.00 in this 

process. See Exhibit # 11. 

Throughout this process, despite repeated requests, MSHA inspectors gave 

UNC personnel no indication of how large the haulage-way should have been 

made. 

As the result of the inspection conducted by MSHA, UNC received a number 

of citations including citation number 152050 (A copy is attached to the 

complaint) for violation of § 57.9-104 which requires- conspicuous marking of 

obstructions which create a ha.zard. UNC paid the penalty resulting from 

citation 152050. 

DISCUSSION 

Docket No. CENT 80-386-M 

~December 19, 1979, during an investigation of a fatality at the 

respondent's Northeast Churchrock Mine, a mine inspector for the Mine Safety 

and Health Administration (MSHA) issued a 104(a) citation No. 151666 which 

stated as follows: 

There was no safe access for the person operating a Clayton (:ffo225) 

haulage locomotive through the area of low clearance between the 

A2-A2 1.4 switch and the A2-A2 3.8 switch on the 1700 level in that 

the measured height of the Clayton #225 locomotive was 61 inches 

from its top down to track rail and at the timber cap 45 feet north 

from the A2-A2 3.8 switch it was measured 61 1/2 inches over the 

track rail. 

Supervisor J. Kepier (track shifter) said he made a trip through 

this area at about 5:30 p.m. and also again about 8:30 p.m. the 

swing shift of 12/18/79 and at about 11:00 p.m. he directed trip 

rider Garcia (whom he also sa:ld was at t.he controls of the Clayton 

4A225 motor) and motorman Sullivan to go through the area of low 

clearance between A2-A2 1.4 switch and A2-A2 3.8 and pull some muck 

from# 2 raise in A2-A2 3.8 track drift • 

. Supervisor B. Chavez (level foreman) said he was standing near the 

A2-A2 1.4 at about 11:20 p.m. as ciayton # 225 motor and 4 empty 

mine cars went by and entered ·the area between A2-A2 1.4 switch 

and A2-A2 3.8 switch. He said he followed and went through this 

same area to the A2-A2 3.8 switch where this motor was setting 

stopped with trip rider Garcia at the controls. He said he discussed an earlier fall at # 2 raise area with motorman Sullivan. 

He said he then told them (Garcia) not to go through to #2 raise 

and just to leave the area and go back out. He said the motor and 

the cars went back through the low clearance area between A2-A2 3.8 

switch and A2-A2 1.4 switch. 

The stipulated facts show that at the time of the accident Garcia was 

operating the locomotive and Sullivan was riding in the last ore car as they 

1170 
traveled from A2-A2 3.8 switch towards the A2-A2 1.4 switch. As the 

locomotive approached the A2-A2 1.4 switch, Sullivan sensed something was 

wrong as the train appeared to be moving at a coasting speed. Sullivan 

climbed over the cars to the locomotive and found Garcia had sustained a head 

injury which ultimately resulted in his death. 

Prior to the accident Chavez had walked from A2-A2 1.4 switch to the 

A2-A2 3.8 switch to check on a reported ground fall and did not see a broken 

timber in the area. Sullivan had also walked the same area at 11:20 p.m. and 

had not observed a broken timber. However, as Chavez walked back past A2-A2 

3.8 switch towards the A2-A2 1.4 switch he saw one broken timber. Sullivan 

also saw the broken timber as the locomotive and cars proceeded towards the 

A2-A2 1.4 switch. The broken timber cap was located 45 feet north of the 

A2-A2 3.R switch and would be between that switch and A2-A2 1.4 switch. 

Petitioner contends that respondent's failure to provide adequate height 

in the tunnel through which the haulage locomotive traveled violated 30 

C.F.R. § 57.11-1 which states as follows: 

Mandatory. Safe means of access shall be provided and 

maintained to all working places. 

Respondent has challenged the citation in controversy for the following 

reasons: (1) that it has always provided and maintained safe passage and safe 

transportation of employees to and from working areas and thus could not have 

violated section 57.11-1; (2) that standard 57.11-1 is unconstitutionally 

vague; (3) that the standard is overbroad; (4) that 57.11-1 is a general 

standard and specific standards exist which could have been cited but were 

not; and (5) that respondent paid the penalty for a specific standard 

relating to the condition of the haulage-way between A2-A2 1.4 and A2-A2 3.8 

switches and thus should not be assessed twice for the same violation. 

Respondent also contends that the hazard is not defined in 57.11-1 and that 

the violation should not have been designated as significant and substantial. 

Further, a claim is presented by the respondent alleging that it should be 

reimbursed the sum of $214,500.00 expended in reconstruction of the 

haulage-way as abatement of the citation. 

Based upon a careful review of the stipulated facts and exhibits in this 

case, I reject respondent's arguments and find a violation of the cited 

standard occurred. 

I. Respondent has always provided and maintained safe 

passage and transportation to and from working areas 

and thus could not have violated section 57.11-1. 

In support of its position, respondent points out that miners Garcia, 

James Keller, Harry Morgan and his track crew, and Chavez had all passed 

through the haulage drift between the A2-A2 1.4 .and A2-A2 3.8 switches, 

either walking or riding, without incident prior to the accident. Furthermore, miners had passed through the area on prior shifts due to the #2 raise 

being an active working area of the mine from which ore was being drawn. 

1171 
This argument is predicated on a false premise .that because an accident 

or injury had not occurred in the past, no hazard existed in the passage-way 

due to the low clearance. The facts do not support this contention. First, 

the measurements taken by the MSHA inspectors following the accident 

involving Garcia show that at a point near the broken timber cap there was 

1/2 inch of clearance between the top of the locomotive and the top of the 

passage-way. The locomotive at its highest point was measured to be 61 

inches from the top of the rail. The front of the locomotive was 7 inches 

lower to allow the operator to have vision to the front. At the point where 

the broken timber cap was discovered, there was 57 inches clearance on its 

lowest side from the rail. These measurements indicate by the limited amount 

of clearance provided for passing locomotives and ore cars that there is no 

room for error or an unexpected event. The broken timber cap is an example 

of an event that portends the existence of a dangerous condition. The 

primary issue here is whether, in light of the minimum amount of clearance, 

"safe means of access" is provided. I find that this situation in the 

haulage-way of an active working area of the mine creates a hazard to the 

safety and health of the miners and therefore violates the provisions of 

standard 57.11-1. Further, the strongest support for this position is the 

fact that an accident did occur at this location resulting in a head injury 

to a motorman on the locomotive and utimately his death. 

Respondent also argues that the standards under the Act applying to 

underground coal mines makes provisions for cabs and canopies but allows 

variances which permit the mining machines to 0 operate with extremely limited 

clearance in mining the coal seams. I find no merit in this argument as we 

are not involved with the equipment used to extract coal here but rather with 

a haulage-way used for the movement of locomotives and ore cars from one 

location to another. Also, it not the purpose in deciding the facts in this 

case to consider them in light of the provisions that apply to underground 

coal mining. They are distinct and separate provisions. 

2. Standard 57.11-1 is unconstitutionally vague 

Respondent in his brief argues that the operator has no way of knowing 

what "safe means of access" requires and therefore it is vague and unclear. 

For example, "means of access" may be defined in terms of passage-ways· 

themselves or in terms of conveyances which transport persons through 

passage-ways. In contrast, respondent alleges that sections of the underground coal standards specify certain distances concerning clearances in 

haulage-ways·. 

The Commission in a recent decision addressed the argument of a standard 

being unconstitutionally vague in Alabama By-Products Corporation, 4 FMSHRC 

2129-2130 (December 1982), and stated as follows: 

In order to pass constitutional muster, a statute or standard 

thereunder cannot be "so incomplete, vague, indefinite or uncertain that men of common intelligence must necessarily guess 

at its meaning and differ as to its application." Connolly v. 

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

1172 
[must] give 

opportunity 

cordin.gly." 

( 1972). 

the person of ordinary intelligence a reasonable 

to know what is prohibited, so that he may act acGrayned v. City of Rockford, 408 U.S. 109, 108-109 

Therefore, under 30 C.F.R. § 75.1725(a) in deciding whether 

machinery or equipment is in safe or unsafe operating condition, 

we conclude that the alleged violative condition is appropriately 

measured against the standard of whether a reasonably prudent 

person familiar with the factual circumstances surrounding the 

allegedly hazardous condition, including ~ny facts peculiar to 

the mining industry, would recognize a hazard warranting corrective 

action within the purview of the applicable regulation. (emphasis 

added). See e.g., Voegele Co. Inc. v. OSHRC, 625 F. 2d 1075 (3d 

Cir. 1980).--

This test was applied by the Connnission in U.S. Steel Corp., 5 FMSHRC 3 

(January 1983), which stated that the adequacy of an operator's efforts to 

comply with a general standard should be evaluated by reference to an 

objective standard of a reasonably prudent person familiar with the mining 

industry and the protective purpose of the Act. Also, see Great Western 

El.ectric Company, FMSHRC (May 25, 1983). 

I conclude from the stipulated facts presented in this case that a 

reasonably prudent person familiar with the pecularities of the mining 

industry would recognize that a hazardous condition was created by the 

limited clearance in the haulag~-way and would increase the height of this 

section of the mine. As stated before, the mere existence of a 1/2 inch of 

clearance between the top of the locomotive and top of the haulage-way should 

indicate to management that the slightest deviation in the top or supports, 

such as timbers, or a careless mistake by a motorman or miner riding in the 

ore cars could cause serious injury. Based upon the criteria set by the 

Commission in their recent decisions and the facts presented in this case, I 

find that the general standard is no~ dnconstitutionally vague. 

3. The standard is overbroad. 

I likewise reject the argument that the standard is so ambiguous and 

overbroad as to be void under the statute. Again, the Commission has stated 

1n Alabama By-Products Corporation, supra, as follows: 

Broadness is not always a fatal defect in a safety and health 

standard. Many standards must be "simple and brief in order to 

be broadly adaptable to myriad circumstances." Kerr-McGee Corp., 

3 FMSHRC 2496, 2497 (November 1981). · See Ryder Truck Lines, Inc. 

v, B~ennan 497 F. 2d 230, 233 (5th Cir-:-1974). 

In the present case, I find that the requirement 1n the standard that 

the operator must provide and maintain a "safe means of access" to all 

working places is neither overbroad nor ambiguous. There is no question that 

1173 
this particular standard can be applied to a "myriad" of different 

circumstances and locations in the mine. However, the requirement of a "safe 

means of access" in a mine must be considered to be a basic requirement for 

the protection of the miner's health and safety. The difficulty in application of a standard to a given situation, as is the case in many 

standards, is the different interpretation as to what is considered "a safe 

means of access." As examples, in Homestake Mining Company, 2 FMSHRC 23167 

(August 1980)(ALJ), the judge decided that in a passageway where a ladder was 

installed for a distance of six feet a clearance of only 13 inches between 

the ladder and the back of the passageway was dangerous to miners climbing up 

and down with their equipment and did not provide a "safe means of access," 

and violated 57.11-l. In The Hanna Mining Company, 3 FMSHRC 2045 (September 

1981), the Connnission affirmed a finding that travel underneath an overhead 

belt by miners was an "unsafe means of access" and violated 57 .11-1 as did a 

large ore spill in an aisle. These representative cases indicate several 

different types of situations where the standard 57.11-1 was applied. I see 

a similarity between the application of the standard in those circumstances 

and varied locations and the conditions in the haulage-way being considered 

here. First, the haulage-way is a location in the mine that must be 

considered a "working place" for miners. Under section 57.2, Definitions, 

"working place" means any place in or about a mine where work is being 

performed. 

I conclude that the respondent has failed to establish in his arguments 

that the Secretary exceeded his rulemaking authority under the Act in 

adopting the general standard at issue requiring that a "safe means of 

access" be provided and maintained in the "working place" of the mine. 

4. Standard 57.11-1 is a general standard and there exist specific standards 

which could have been cited but were not. 

Respondent contends that the enforcement scheme and standards under the 

Occupational Safety and Health Act of 1970 (OSHAct) are similar to those of 

the Federal Mine Safety and Heal th Act of 1977 (MSHAct). Further, that it is 

a well established doctrine under OSHAct that if there exists an applicable 

specific standard and that standard is not cited because a more general 

standard is cited, the citation of the general standard must be vacated. 

Trojon Steel Company, 3 OSHA 1384 (1975). It has been held by Occupational 

Safety and Health Review Commission that a citation for the violation of 

section 5(a)(l) is invalid and will not lie where a duly promulgated 

occupational safety and health standard is applicable to the condition or 

practice that is alleged to constitute a violation of the Act. Brisk 

Waterproofing Company, Inc., 1 OSHA 1263 (July 1973). Respondent suggests 

that the Federal Mine.Safety and Health Review Connnission should follow this 

precedent in the interest of administrative and judicial economy (Resp. Br. 

14). 

This defense must be rejected. Admittedly, the OSHAct and MSHAct acts 

have similar statutory language and were enacted to protect the health and 

safety of certain employees in the work place. However, there are some very 

1174 

\ 

' 
distinct differences in the two laws as adopted by Congress. One of the most 

noticeable differences involves the provisions of section 5(a)(l) of the 

Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 

1590 which is frequently referred to as the "general duty clause." 2 / 

This provision of the OSHAct was adopted by Congress to take effect-where 

there was not a precise standard to cover every conceivable situation that 

may arise. See Senate Committee on Labor and Public Welfare, S. Rept. No. 

91-1282, 9lst Cong., 2d Sess (1970 at 9, 10, p. 21). 

The "general" designation under which section 57 .11-1 is listed in the 

MSHAct. is for a different purpose than the respondent would contend. 

"General" in this instance, refers to the fact that this standard applies to 

both "Surface and Underground" mining under a heading of "Travelways." These 

titles are listed in the regulation under the heading"§ 57.11 Travelways and 

escapeways." 

5. Respondent should not be required to pay twice for the same condition 

or violation 

The facts show that respondent was also issued Citation No. 152050 in 

connection with the investigation of the accident in this case and citation 

being contested herein. Citation No. 152050 alleged a violation of standard 

§ 57.9-104 which states as follows: 

Mandatory. Warning devices or con~picuous markings shall be 

installed where chute lips, ventilation doors, and .. obstructions create a hazard to persons oi equipment. 

The citation reads as follows: 

"The timber caps in A2 haulage drift between A2-1.4 and A2-3.8 

did not have warning devices or conspicuous markings to warn 

persons operating a clayton locomotive of the low clearance 

area •. The timber caps range from 57" to 67" in height from the 

track rails. The clayton locomotive measures 61" from the track 

2/ Sec. S(a) Each employer~ 

(1) shall furnish to each of his employees employment and a place of 

employment which are free from recognized hazards that are causing or are 

likely to cause death or serious physical harm to his employees; 

(2) shall comply with occupational safety and health standards promulgated under this Act. 

(b) Each employee shall comply with occupational safety and health 

standards and all rules, regulations, and orders issued pursuant to this Act 

which are applicable to his own actions and conduct. 

1175 
rail. A2 haulage drift is the only haulage access from # 2 and 

# 4 ore raises in 3.8 haulage drift on 1700 level." 

Respondent argues that Citation No. 152050 involves the same area, 

measurements and same alleged violation being considered in this case involving No. 151666. Further, respondent has paid the proposed penalty 

assessment involving 152050 and that it would be res judicata to retry this 

again. 

The respondent fails in this argument for the facts show that two 

violations of mandatory safety standards occurred here. First, the 

respondent was cited for, and I find, violation of 57.11-1 requiring a safe 

means pf access be provided and maintained to all working places. As to 

Citation No. 152050, the violation charged was for failure to have warning 

devices or conspicuous markings installed where a hazard existed. These are 

two separate violations. It is well settled that the 1977 Mine Act imposes a 

duty upon operators to comply with all mandatory safety and health standards. 

It does not permit an operator to shield itself from liability for a 

violation of a mandatory standard simply because the operator violated a 

different, but related mandatory standard. El Paso Roc.k Quarries, Inc., 

3 FMSHRC 35 (January 1981), Southern Ohio Coal Company, 4 FMSHRC 1459 (August 

1982). 

6. The violation of Section 57.11-1 was not significant and substantial. 

Respondent contends.that because the standard cited here is so vague as 

not to define the hazard, it should not have been designated as significant 

and substantial. 

I also reject this argument as being without merit. The standard must 

be given a rational and reasonable interpretation. The "safe access" referred to must be viewed in the light of the danger that exists to miners who 

are working in the area and in this instance traveling on the locomotive and 

ore cars through this area of restricted clearance. The standard must be 

construed to effectuate its obvious purpose - safety. To accept respondent's 

interpretation would be inconsistent with that purpose. 

The test for a "significant and substantial" violation was laid down by 

the Commission in Secretary of Labor v. Cement Division, National Gypsum 

Company, 3 FMSHRC 822, April 7, 1981, also a civil penalty case. In that 

case the Commission held that a violation is "significant and substantial" 

if: "[B]ased 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." 

1176 
From the facts before me in this case, there was a reasonable likelihood that 

miners traveling on either the locomotive or ore cars through the area in the 

haulage-way of the mine cited herein as having restricted clearance could 

receive injuries of a "reasonably serious n;;iture" by having a part of his 

person come in contact with the top of the haulage-way. In the instant case, 

a miner suffered head injuries, ultimately resulting in his death. This is 

sufficient, as an example of the potential hazard that existed in the area, 

to meet the test set out by the Cormnission, and warrants that the violation 

of the standard be designated as significant and substantial. 

In view of my finding that a violation of standard 57.11-1 existed as 

alleged in Citation No. 151666; I am not obliged to make a determination of 

the ~erits of respondent's contention that it should be reimbursed for the 

funds expended increasing the clearance in the haulage-way. The fact is that 

respondent was required to do so in abatement of the alleged violation, which 

ultimately was accomplished and the hazard eliminated. 

PENALTY 

After respondent abated the violation, the Secretary terminated the 

withdrawal order and proposed a civil penalty of $7 ,500.00 for the alleged 

violation. 

As part of the stipulated facts in this case, it was shown that 

respondent's mine employed 916 persons in December 1979, operating three 

eight hour shifts six days a week. This would indicate a large mine 

operation. 

No argument was advanced by respondent that payment of the proposed 

penalty in this case would jeopardize its ability to continue in business. 

Therefore, it is presumed that if a penalty is assessed, it will not do so. 

The Secretary appended to his brief filed in this case a certified copy 

of a computer print-out showing res~ondent's assessed violation history 

beginning December 20, 1977 through December 20, 1979, the day of the 

accident. Respondent raised no objection to this computation of assessed 

violations so it is presumed that it does not disagree with the figures. The 

printout shows for the period covered, that respondent was assessed and has 

paid the penalty for 245 violations. 

I find from the facts in this case that the negligence on the part of 

respondent was high as the restricted clearance in the haulage-way was 

visible to all who traveled through this area. However, the stipulated facts 

do not show that respondent's supervisors, or Sullivan, Garcia's partner, saw 

the broken timber cap before the accident occurred. I do not find that this 

condition of a broken timber cap was established as the direct cause of the 

injury to Garcia, although it may have been, but rather, find that the 

1177 
-restricted height-i-n--·th-is haula-g-e~way was th-e hazard -and the cause ot the 

injury to the miner. 

·The gravity is also high. The seriousness of the type of injury that 

occurred in this case should have been forseen by the respondent. Also, the 

lives of many miners were endangered by this condition as the haulage-way was 

regularly used and is an active working part of the mine. 

The respondent did abate the hazard by enlarging the haulage-way and 

providing adequate clearance in the area. This required respondent to expend 

the sum of $214,500.00 plus lose some production in the mine. When assessing 

a penalty where there is a vacated withdrawal order, it is prGper to take 

into account the economic loss suffered by the operatvr as a consequence of 

the order. See North American Coal Company, 1 MSHC 1131, 3 IBMA 93 (April 

1974). 

I cone 1 ude, based on all of the above findings and ·factors, that a 

penalty of $2,000.00 is proper in this case. I believe a reduction in the 

amount of the proposed penalty assessment is warranted for the reason that 

the respondent did pay another penalty withoot contest and expended a large 

sum of money in abatement of the violation. 

DOCKET NO. CENT 80-387-M 

This case involves a 104(a) 3/ Citation No. 151667 issued to the 

respondent alleging a violation of 30 C.F.R. § 57.3-26. The condition or 

practice for which respondent is cited is described in the citation as 

follows: 

There is a damaged and broken timber cap creating a hazardous 

condition for haulage equipment that was directed to travel 

through the area between A2-A2 1.4 switch and the A2-A2 3.8 

switch on the 1700 level in that one of the timber caps 41 feet· 

north from A2-A2 3.8 switch is broken horizontally about halfway along its length and was hanging down to within 57 inches 

over the left side track rail (looking south). 

The haulage equipment (Clayton locomotive #225) directed 

3/ Sec. 104(a) If, upon inspection or investigation, the Secretary or his 

authorized representative believes that an operator of a coal or other mine 

subject to this Act has violated this Act, or any mandatory health or .safety 

standard, rule, order, or regulation promulgated pursuant to this Act, he 

shall, with reasonable promptness, issue a citation to the operator. Each 

citation shall be in writing and shall describe with particularity the nature 

of the violation, including a reference to the provision of the Act, 

standard, rule, regulation, or order alleged to have been violated. In 

addition, the citation shall fix a reasonable time for the abatement of the 

violation. The requirement for the issuance of a citation with reasonable 

promptness shall n6t be a jurisdictional prerequisite to the enforcement of 

~ny provision of this Act. 

1178 
by Supervisor J. Kepler (track shifter) to travel through 

this area measured 61 inches from its top to track rail. 

Supervisor J. Kepler said he passed through this same area 

twice earlier in the shift. 

30 C.F.R. § 57.3-26 provides as follows: 

Mandatory. Timbers used for support of ground in active workings 

shall be set, blocked, or blocked and wedged so that 

a fit is achieved. Damaged, loosened, or dislodged 

timbers which create a hazardous condition shall be 

promptly repaired or replaced. 

Without further explanation, Petitioner in his brief stated that he 

chose not to brief the issues surrounding 30 C.F.R. § 57.3-26 but instead 

addressed hip entire argument to standard 30 C.F.R. § 57.11-1 which refers to 

the alleged violation contained in Docket No. CENT 80-386-M. This failure on 

the part of petitioner to afford the adjudicator the benefit of his arguments 

on the issues in this case could be construed as tantamount to an abandonment 

of his petition against the respondent. However, I am required to abide by 

the decisions of the Federal Mine Safety and Health Review Commission which 

holds that section llO(a) of the Act mandates zn assessment of a penalty for 

any violation of a mandatory safety standard. I Island Creek Coal 

Company, 2 FMSHRC 279 (February 1980), Van Mulvehill Coal Company, Inc., 2 

FMSHRC 283 (February 1980). Therefore, if I find a violation of the cited 

standard, from the stipulated facts in this case, I will assess a penalty. 

Respondent has admitted in its brief that a broken timber cap was 

discovered in the haulage-way at approximately the same time the accident 

occurred, The remaining issue to be decided is whether the broken timber cap 

created a hazardous condition contemplated by standard 57.3-26. Respondent 

argues in its brief that existence of the broken timber cap in the haulageway between the two switches did not create a hazardous condition. The basis 

for this reasoning is that 57.3-26 applies to ground control or control of 

the top of the haulage~way and was not related to the hazard of restrictive 

clearance or obstructions (Resp. Br. 22-23), 

I concur with respondent that this standard is included under part 

§ 57.3 of the regulation that is designated "Ground control" in "Underground" 

mines. The general tenor of the other standards that precede and follow 

57.3-26 are directed towards support and control of ground in underground 

mines. The question here is what was the hazardous condition cited by the 

4/ Sec. llO(a) The operator of a coal or other mine in which a violation 

occurs of a mandatory health or safety standard or who violates any other 

provision of this Act, shall be assessed a civil penalty by the Secretary 

which penalty shall not be more than $10,000 for each such violation. Each 

occurrence of a violation of a mandatory health or safety standard may 

constitute a separate offense. 

1178 
~"Spector when he issued this citation? In the condition or practice 

section in the citation, the inspector wrote "There is a damaged and broken 

timber cap creating a hazardous condition for haulage equipment •••• " There 

is no further statement as to whether the hazard was the possibility of a 

ground fall or cave-in, or rather to a locomotive or miner striking the 

timber in passing through the area, or both. 

It is unfortunate that the Secretary elected not to brief the issues in 

this case as his arguments and authorities would have been most helpful. 

However, I am compelled to resolve the issues in spite of this. I am 

persuaded by a careful review of the statement of the inspector in the 

citation describing the conditions as he found them that he contemplated a 

hazard to the equipment from the broken timber falling down into the upper 

portion of the haulage-way. This determination is based upon the fact that 

included in this description is the measurements of the restricted clearance 

created by the broken timber described as" •.• broken horizontally about 

halfway along its length and was hanging down to within 57 inches over the 

left side track rail (looking south). 11 

If the above assumption is incorrect, and the inspector had intended to 

cite a hazard for roof control, I would have to find that there was not a 

violation of the standard. Th~ facts show that the broken timber cap was 

first observed immediately before the accident occurred. There is no 

evidence in the stipulated facts to show that this condition had existed for 

a period of time or that respondent had prior knowledge. Further, there is 

no evidence that this one broken timber cap amongst the others installed in 

the area created a hazard of a fall or cave-in. The standard contemplates 

that timbers that are damaged, loosened, or dislodged and create a hazard 

shall be promptly repaired or replaced. The crucial word appearing in this 

standard is "promptly." In the case Magna Copper Company, 3 FMSHRC 349 

(February 1981)(ALJ), involving standard 57.3-26 and similar facts, Judge 

Carlson stated in part as follows: 

Respondent is perhaps correct that a ~ine operator need not 

replace every damaged or weakened support. But if that is so, 

the Secretary is doubtless correct in insisting that where a 

damaged support in a working area of a mine is not replaced, 

that decision must rest on a thorough and prudent assessment 

of the effect of weakened support on safety. 

In the above case, the damaged support existed for a year and 

respondent's own safety engineer believed it should have been replaced and a 

violation was found. That is not the case here. The evidence neither shows 

that the support was necessary for adequate ground control nor that it had 

existed for any period of time. 

However, if the assumption is correct that the hazard contemplated by 

the inspector was a danger to the locomotive or miners passing underneath due 

to a restriction of clearance, then the issue is whether the standard was the 

proper one to be applied in issuing the citation. In the case of Phelps 

1180 
Dodge Corporation v. Federal Mine Safety and Health Review Commission, 681 F. 

2d 1189 (1982), th~ United ·states Court of Appeals for the Ninth Circuit 

considered the same issue as presented by respondent in this case, although a 

different standard and unidentical facts. The Court found that the 

application of a regulation in a particular situation may be challenged on 

the ground that it does not give "fair warning" that the alleged violative 

conduct was prohibited. See Daily v. Bond, 623, F. 2d 624, 626-627 (9th Cir. 

1980). In the Phelps Dodge case, the contention was that the standard cited 

was to protect against hazards of electrical shock and not hazards of 

removing rocks from a chute. The Court concluded and stated as follows: 

The regulation inadequately expresses an intention to reach the 

activities to which MSHA applied it. Therefore, we join in the 

observation: "If a violation of a regulation subjects private 

parties to criminal or civil sanctions, a regulation cannot be 

construed to me.an what an agency intended but did not adequately 

express" (citation omitted). 

The Court found that the Secretary had abused his discretion in applying 

the standard under electrical hazards to non-electrical hazards. 

Under the doctrine adopted in the above case, I find that the standard 

applied in this case is unconstitutionally vague as to all hazards except 

when applied to the hazards associated with ground support. As I stated 

before, I do not find a violation of 57.3-26 as to the requirements of the 

standard relating to ground control and prompt replacement, or repair of 

broken timbers. If the Secretary had wished to cite the respondent for a 

broken timber cap, creating a hazard to the movement of locomotives and means 

through an area of restricted clearance, there are other standards he could 

cite. I therefore vacate Citation No. 151667. 

CONCLUSIONS OF LAW 

1. Respondent was subject to the provisions of the Federal Mine Safety 

and Health Act in the operation of the Northeast Churchrock Mine at all times 

pertinent hereto, .and the undersigned Administrative Law Judge has 

jurisdiction over the parties and the subject matter of these proceedings. 

2. Respondent was in violation of the mandatory standard in 30 C.F.R. 

57.11-1 by reason of the fact that it failed to maintain a safe means of 

access to all working places in that there was limited and restrictive 

clearance height in the haulage-way between A2-A2 1.4 and A2-A2 3.8 

switches. 

3. Respondent did not violate standard 30 C.F.R. § 57.3-26 and said 

Citation No. 151667 is vacated for the reason that the standard is unconstitutionally vague as to a hazard to miners because of restricted 

clearance in the haulage-way due to the broken ·timber cap dropping or hanging 

down therein. 

1181 
ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citation No. 151667 is vacated. 

2. Citation No. 151666 is affirmed and respondent shall pay the 

Secretary of Labor the above-assessed penalty, in the amount of $2,000.00, 

within 40 days from the date of this decision. 

Distribution: 

Eloise V. Vellucci, Esq. 

Office of the Solicitor 

United States Department of Labor 

555 Griffin Square, Suite 501 

Dallas, Texas 75202 

Wayne E. Bingham, Esq. 

Pickering & Bingham 

920 Ortiz N.E. 

Albuquerque, New Mexico 87108 

1182 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 28, 1983 

LOCAL UNION 6025, UNITED MINE 

WORKERS OF AMERICA, 

Complainant 

Complaint of Discrimination 

Docket No. WEVA 80-429-D 

v. 

BISHOP COAL COMPANY, 

Respondent 

Bishop Mine 

ORDER OF DISMISSAL 

The above-captioned matter has been reassigned to the 

undersigned administrative law judge. 

This proceeding is a complaint of discrimination filed 

by Local Union 6025, United Mine Workers of America against 

Bishop Coal Company. The UMWA has filed a letter which 

advises that a settlement has been reached in this matter. 

The operator has reimbursed the Local Union for the wages 

it paid to those miners who participated in the spot 

inspections at issue. The operator has also paid interest 

to the Local Union on the wages it paid out and reimbursed 

the International Union for the costs incurred in prosecuting 

this matter. The UMWA requests that this proceeding be 

dismissed. 

Accordingly, it is hereby ORDERED that this matter is 

DISMISSED. 

Law Judge 

Distribution: Certified Mail. 

Mary Lu Jordan, Esq., United Mine Workers of America, 

900 15th Street, N.W., Washington, DC 20005 

Robert M. Vukas, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241 

1183 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 3 0 1983 

SECRETARY OF LABOR, CIVIL/PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHWESTERN ILLINOIS COAL 

CORPORATION, 

Respondent 

Docket No. LAKE 82-38 

A.O. No. 11-00609-03034 

Captain Mine 

DECISION 

Appearances: 

Before: 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. 

Department of Labor, Chicago, Illinois, for 

Petitioner; 

Brent L. Motchan, Esq., St. Louis, Missouri, for 

Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

The parties have filed cross motions for summary decision • 

based on the pleadings, affidavits and admissions, and each asserts 

that there is no genuine issue of material fact necessitating a 

hearing. Each party has filed a memorandum in su~port of its position. Based on the entire record and considering the contentions 

of the parties, I make the following decision. 

FINDINGS OF FACT 

1. At all times pertinent to this decision, Respondent owned 

and operated a surface coal mine in Perry County, Illinois, known 

as the Captain Mine. 

• 

2. Bituminous coal is extracted from the subject mine and the 

operation of the mine affects interstate commerce. 

3. Respondent produces over two and one-half million tons of 

coal annually at the subject mine, and employs approximately 

600 miners. I find that Respondent is a large operator. 

1184 
4. There were 53 violations at the subject mine during the 

year prior to.the violation alleged herein. I find that penalties 

otherwise appropriate shoulq not be increased because of the 

operator's history of previous violations. 

5. The imposition of a penalty in this case will not affect 

Respondent's ability to continue in business. 

6. On September 18, 1981, Federal Coal Mine Inspector 

Ronald M. Zara issued a citation to Respondent under 104(a) of the 

Mine Safety Act charging a violation of 30 C.F.R. § 77.1710(g). 

7. The condition which prompred the issuance of the citation 

was the following: • 

On Septe~ber 18, 1981, Tom Johnson, a company engineer, was 

working approximately 18 feet above the ground on the lazer tower 

and was not wearing a safety belt. His knee was around the vertical 

leg of the tower and he was using both hands to reposition the lazer 

sending unit. 

8. The alleged violation was abated when Mr. Johnson was 

removed from the lazer tow~r and instructed in the use of safety 

belts. The citation was then terminated. 

9. Respondent had a written safety policy at the time of the 

alleged violation herein. The policy required all employees to 

comply with Federal mine health and safety regulations and specifically provided that "safety belts and lines shall be worn at all 

times where there is a danger of falling.~' The safety policy contained an enforcement procedure providing for notices of violation, 

suspension without pay and discharge. Between October 1978 and 

April 1983, approximately 60 violations notices were issued for 

violations of the safety policy, four of which were for failure to 

wear safety belts. In addition, one person was discqarged, three 

were suspended and six received disciplinary letters during the 

same period of time, for violations of company safety rules. 

10. A safety belt was not present on the ground lazer unit 

where the employee involved herein was working on September 18·, 

1981. However, safety belts were present in the mine supply office, 

the safety office and the tipple. The subject employee's office 

was adjacent to the safety office and approximately 50 feet from 

the mine supply office. There was also a safety .belt present on a 

machine located about 3 minutes walking distance from the ground 

lazer unit. 

11. The employee had received safety training and specifically 

had been instructed in the requirement to use safety belts, and the 

proper method of using them. 

1185 

/ 

• \ 

\ 
12. There is no evidence that any supervisory p~rson was 

present in the area where the employee was working or was aware 

that he was working without a safety belt. 

REGULATION 

30 C.F.R. § 77.1710 provides in part: 

Each employee working in a surface coal mine 

or in the surface work areas of an underground coal 

mine shall be required to wear proteitive ~lothing 

and devices as indicated be~ow: 

* * * * * * * 

(g) Safety belts and lines where there is danger 

of falling; a second person sha11 tend the lifeline 

when bins, tanks, or other dangerous areas are entered. 

ISSUES 

• 

1. Whether the decision of Judge Koutras reported in 3 FMSHRC 

871 is ~ judicata in the present proceeding. 

2. Whether the fact that an employee was working 18 feet 

above ground in a situation where there was a danger of falling in 

itself establishes a violation of 30 C.F.R. § 77.1710(g)? 

3. If the answer to issue 2 is negative, whether Petitioner 

has established that Respondent failed to requ~re its employees to 

wear safety belts where there is a danger of falling. 

CONCLUSIONS OF LAW 

1. Respondent is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in the operation of the Captain 

Mine, and the undersigned Administrative Law Judge has jurisdiction 

over the parties and subject matter of this proceeding. 

2. A decision by a tribunal of competent jurisdiction is 

~ judicata in a subsequent proceeding between the same parties 

involving the same issue, even if·the first proceeding is pending 

on appeal. 

DISCUSSION 

Under the rule followed in the federal courts, ~ judicata 

or collateral estoppel precludes a party from raising an issue that 

has previously been dec~ded against him even if the prior decision 

has been appealed. Deposit Bank v. City of Frankfort, 191 U.S. 499 

(1903); United States v. Abatti, 463. F. Supp. 596 (D.C. Calif. 1978). 

A different rule is followed in a minority of state courts, but it 

seems clear that the Review Com~ission should follow the federal 

rule. 

1186 
3. The case decided by Judge Koutras, Secretary v. 

Southwestern Illinois Coal Corpor~tion, 3 FMSHRC 871 (1981) 

involved the same parties and the same mine as the instant case. 

Respondent was charged with violating the same mandatory safety 

standard. The Secretary apparently contended that the failure of 

a miner to wear a safety belt where a danger of falling exists is 

a violation~~ of 30 C.F.R. § 77.1710(g). Judge Koutras 

decided this issue adversely to the government on the authority of 

North American Coal Corporation, 3 IBMA 93 (1974). The government 

had a full and fai~ opportunity to litigate this issue and is 

estopped from relitigating it here. 

4. Therefore, applying the 'Principle of ~ judicata, the 

fact that an employee was working 18 feet above ground in a situation where there was a danger of falling does not in itself establish a violation of 30 C.F.R. § 77.171-0(g). 

5. Since I cannot assume that the evidence before Judge 

Koutras is the same as is now before me, his decision is not 

~ Judicata on the issue whether Petitioner established that 

Respondent failed to require its employees to wear safety belts in 

situations involving a danger of falling. 

6. I conclude on the basis of the evidence before me that 

Petitioner has not established that Respondent failed to require 

that its employees wear safety belts wher~ there is a danger of 

falling. The evidence shows clearly that employees were instructed 

to wear safety belts in such situations and that the instruction 

was enforced by disciplinary action. 

ORDER 

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

law, Petitioner's motion for summary decision is DENIED; Respondent's 

motion for summary decision is GRANTED; Citation No. 1115998 is 

VACATED; Petitioner has previously voluntarily vacated Citation 

No. 1115976. Therefore, the proposal for a penalty is DISMISSED. 

Distribution: 

4t<Aiv ~Vl]cfvr,~ J James A. Broderick 

Administrative Law Judge 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified Mail) 

Brent~. Motchan, Esq., 500 North Broadway, Suite 1800, St. Louis, 

MO 63102 (Certified Mail) 

/fb 

1187 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUN :3 0 \983 

SECRETARY OF LABOR, 

MINE SAFETY_AND HEALTH 

ADMINISTRATION (MSHA), 

·Petitioner 

v. 

OLD BEN COAL COMPANY, 

Respondent 

OLD BEN COAL COMPANY, 

Cqntestant 

v. 

SECRETARY OF LABOR, and 

UNITED MINE WORKERS OF AMERICA, 

Respondents 

Civil Penalty Proceeding 

Docket No. LAKE 82-85 

A.C. No: 11-00590-03141 V 

Contest of Citation or Order 

Docket No: LAKE 82-66-R 

Citation No. 1222957; 3/11/82 

DECISION 

Appearances: Mark M. Pierce, Esq., Chicago, Illinois, for Old Ben Coal 

Before: 

Company; . ., 

Miguel J. Carmona, Esq., Office of the Solicitor, Chicago, 

Illinois, for the Secretary of Labor 

Judge Moore 

The above cases were re-assigned from Judge Lasher to me on June 23, 

1983, with the statement that Judge Lasher is, because of illness, "unavailable to the agency" as that phrase is used in 5 U.S.C. 554(d). 

After considering the evidence, Judge Lasher issued a bench decision which 

appears on page 231 of the transcript. I have studied that decision as well as 

the testimony, exhibits, and arguments made in the case. 

I agree with the bench decision and adopt it as my own. This bench 

decision appears below as it appears in the official transcript aside from 

minor corrections. 

This is a consolidated proceeding arising out of the filing 

of a document entitled Application for Review (Notice of Contest) 

by Old Ben Coal Company, hereinafter Old Ben, to review Citation 

No. 1222957 dated March 11, 1982, and a proposal for a penalty 

filed by the Secretary of Labor, hereinafter the Secretary, seeking assessment of a penalty for the violation charged in the same 

1183 
Citation. The Citation which was issued pursuant to Section 104 

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

U.S.C. § 801 et seq., charges Old Ben with an infraction of its 

Roof Control Plan in violation of 30 CFR 75.200. In its Application for Review, Old Ben challenges the occurrence of the violation as well as the specific findings contained on the face bf 

the Citation to the effect that the violation was "of such a 

nature as could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety and health hazard," 

and also-that the violation resulted from an "unwarrantable failure" on the part of Old Ben to comply with the mandatory health 

and safety standards. 

In this hearing Old Ben has conceded that the violation occurred as charged in the Citation thus leaving the issues to be 

resolved those raised by the two aforesaid concepts inherent in 

so-called unwarrantable failure violations, that is, "significant 

and substantial" and "unwarrantable failure." Additional issues, 

of course, are the amount of penalty which should be assessed for 

the.violation admitted to have been committed by Old Ben. Both 

parties presented witnesses in this proceeding and submitted documentary evidence and, based upon the evidence of record, I make 

the following findings; 

Preliminary Findings 

On December 11, 1982, Jesse B. Melvin, an Inspector with the 

Mine Safety and Health,"Administration, arrived at Old Ben's No. 26 

mine at approximately 7:30 a.m. and proceeded on a Section 103(i) 

spot inspection of the mine accompanied by Jim Bolen--Old Ben's "top 

safety man," according to the Inspector. 

At approximately 9:50 a.m., Inspector Melvin observed a continuous miner, operated by James Hawkins, backing out from under an 

area of unsupported roof. This area, 14 feet by 22 feet, was 

located in the 10 CM 6 unit, ID 014 in the Main South entries. As 

charged in the Citation and conceded by Old Ben, the continuous 

miner had advanced 38 feet inby the east row of roof support (roof 

bolts) and the machine's operator was 16 feet inby the last roof 

support in the Se~ond Main South entry. 

The pertinent provision of the Roof Control Plan violated 

appears on Page 56 thereof (Exhibit P-4) and provides: "No work to 

be performed inby per~anent supports unless temporary supports are 

installed on five foot centers or less." 

The unsupported area in question had been marked by the placement of a danger tag on .a roof bolt on the prior shift (12 midnight 

to 8:00 a.m.) but the same was not observed by James Hawkins at the 

time he proceeded under the unsupported roof. At least one of the 

reasons for this was the dust which was prevalent in the area at the 

time. 

1189 
Old Ben's Section Foreman at the time was Tim Jones. On 

March 11~ 1982, Mr. Jones' crew consisted of two continuous 

miner operators, Hawkins and John Zimmerman, and, in addition, two 

shuttle car operators, two roof bolters, one utility tractor 

operator, and one repairman. At approximately 9:00 a.m., Mr. Jones 

instructed his employees to clean up the area in question, but Mr. 

Jones was not present at the time the violation occurred because of 

a power defect which occurred on another piece of equipment requiring his presence at a place some 600 feet distant from the entry in 

question.~ Hawkins commenced cleaning up the general area and worked 

at this task for approximately 25 minutes before proceeding under 

the 14 by 22 foot area of unsupported roof. At the time Hawkins 

proceeded into this area, he was unaware that he was entering into 

an area not supported by roof bolts in accordance with the Roof 

Control Plan. However, Hawkins subsequently realized that he was 

working under unsupported roof and even so did not immediately 

back out of the area but continued to work under unsupported roof. 

His total time under unsupported roof was 10 minutes and he continued to engage in cleaning up the area for a period of approximately seven minutes after he realized he was under unsupported 

roof. Hawkins' reason for doing so was that he "went ahead and 

cleaned it up" while he was there to avoid "a big move" later on. 

When Hawkins first proceeded under the unsupported roof he was 

alone. Subsequently, the other operator of the continuous miner, 

John Zimmerman, arrived in the vicinity but Zimmerman never placed 

himself under unsupported roof. When Inspector Melvin arrived, 

Zimmerman made a statement to him to the effect that they had gone 

under roof (meaning unsupported roof) before and that this time they 

had been caught. 

Subsequent to his announcement that a Section 104(d) Citation 

would be issued, Inspector Melvin determined that there were conditions or circumstances present in the unsupported roof area which 

would or might have increased the likelihood of the occurrence of 

the hazard, i.e., that there was a slip in the coal roof and "rock 

showing in one place of the roof." (Exhibit P-3). 

The danger tag placed by the prior shift on the roof bolt in 

the area in question was installed by the mine examiner at that time 

because there was bad top in the area of the unsupported roof and 

not because it was normal practice to place such a tag in all places 

where there is unsupported roof regardless of the condition of the 

roof. 

Following the determination by Inspector Melvin to issue 

Citation No. 1222957 he told Jim Bolen, Old Ben's safety mine 

inspector at .No. 26 mine, that to obtain abatement of the Citation, the Roof Control Plan must be read to the crew. The continuous miner operator, Hawkins, was also reinstructed with respect to compliance with the above-quoted provisions of the plan. 

Hawkins and Zimmerman were advised by Old Ben management that a 

11DO 
letter would be placed in their personnel folders indicating that 

they were ·involved in the violation which had occurred. Whether 

that disciplinary action by Old Ben was ever carried out is unclear since such letters were not in the folders for Zimmerman and 

Hawkins at the time of this hearing. Hawkins and Zimmerman were 

not otherwise disciplined nor was Tim Jones, the Section Foreman. 

No meaningful disciplinary action was meted out by Respondent to 

Hawkins. 

Hawk1ns had been operating a continuous mining machine for 

approximately one year p"rior to March 11, 1982. During that period 

of time, Hawkins had worked under unsupported roof 10 to 12 times, 

some of which were in the presence of foremen (sometimes referred 

to as face bosses). On some of these occasions these foremen made 

statements to Hawkins to the following effect: "Don't get caught" 

and "I didn't see you." Prior to the violations on March 11, 1982, 

Old Ben management personnel had condoned infractions of the same or 

similar provisions of the Roof Control Plan by Hawkins. 

Had the roof fallen while Hawkins was working under it in the 

unsupported area in question, i.e., had the hazard contemplated by 

the Roof Control provisions in question come to fruition, Hawkins, 

the only employee jeopardized by the violation, could reasonably 

have beem expected to sustain injuries ranging from very minor 

injuries to either permanently disabling injuries or fatal 

injuries. 

Hawkins, 22 years,_of age, had he been aware of the "slip" in 

the roof observed by Inspector Melvin, would not have continued 

working under the unsupported roof area after he had determined that 

he was working under unsupported roof area. 

Although Old Ben has a "good" safety program in terms of its 

format-which includes instructions and training of new employees and 

employees who are changing jobs (Exhibits R-2 and R-3),-the 

saluorious effect of this safety program is undermined if not 

negatived by the actual attitudes and practices manifested by Old 

Ben's foremen and other management personnel in the day-to-day 

operation of the mine.l 

!The unsatisfactory attitudes of Old Ben's management were credibly 

described by MSHA's Inspector Supervisor Mike Wolfe who characterized the same as a "lack of sincere desire to comply." This characterization based upon some 12 years' familiarity was supported by 

the condonation of Hawkins' infractions over a period of time, the 

computerized History of Previous Violations (Exhibit P-5) submitted 

in this proceeding, and the statement hereinabove referred to made 

by John Zimmerman to Inspector Melvin following his determination to 

issue the Citation in question. 

1191 
The violation committed by Old Ben on March 11, 1982, did not 

directly r_esult from negligence on the part of its Foreman, Tim 

Jones. The violation resulted in a significant degree from Old 

Ben's careless and indifferent approach with regard to requiring 

compliance by its miners with safety standards in general and provisions of the Roof Control Plan in particular. 

Old Ben is a large coal mine operator with an unusually high 

number of violations committed in the prior 24-month period preceding March 11, 1982 (719 violations). 

Discussion, Ultimate Findings of Fact and Conclusions of Law 

Turning now to the question as to whether or not the violation 

in question was of such a nature as can "significantly and substantially contribute to the cause and effect of a mine safety or 

health hazard," it is noted that 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 injury or illness of a 

reasonably serious nature." I have previously found that the occurrence of the event or the hazard contemplated by the provision of 

the Roof Control Plan violated would likely result in injuries of a 

reasonably serious nature to or the fatality of the continuous 

miner operator, James Hawkins. The question remaining under the 

National Gypsum test i~ whether or not the violation contributed to 

the cause and effect of a mine safety hazard. 

The Commission noted in National Gypsum that the Act does not 

define the key 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. Thus 

two facets of general concept are raised by this language: (1) the 

likelihood of resulting injury occurring and (2) the gravity or 

seriousness of the resulting injury. Significantly, the Commission 

in National Gypsum made the observation that "we believe that the 

inspector's independent judgment is an important element in making 

significant and substantial findings which should not be circumvented." I do not take this statement, however, to mean that the 

Inspector's determination must govern or is binding as a general 

rule. It can be rebutted. However, on the record in this case and 

considering the inherent nature and extreme hazards posed by roof 

falls generally, I see no reason not to accept the Inspector's 

testimony with respect to the seriousness of the violation in quest ion and the likelihood of the occurrence happening. This is particularly true in view of the condition of the roof in the unsupported area in question even though the same was actually ascertained after the Inspector made his determination. I conclude that 

the Secretary in this case has carried its burden of proof with 

1192 
respect to its "substantial and significant" allegation based upon 

the variou~ factual findings which I have previously indicated including the length of time Hawkins spent under unsupported roof and 

the condition of the roof at the time Hawkins was under it. I thus 

find that there did exist a reasonable likelihood that the hazard 

was significantly and substantially contributed to by the violation 

and that there was a reasonable likelihood that the hazard, had it 

come to fruition, would have resulted in a reasonably serious injury 

to Hawkins. 

Whether the instant violation was the result of an unwarrantable failure of the operator to comply with the roof control requirement contained on Pag~ 56 of the Plan depends on whether the 

violative condition was one which the operator knew or should have 

known existed or which the operator failed to correct through indifference or lack of reasonable care. Zeigler Coal Company, 7 IBMA 

280 (1977). 

I have previously found with respect to Old Ben's indifferent 

approach as to compliance with safety standards and condonation of 

violations of roof control provisions. Based upon the testimony of 

Mr. Hawkins and MSHA Supervisory Inspector Mike Wolfe, whose testimony I do credit, I fi~d that Old Ben exhibit~d a negligent approach 

toward insuring compliance with the Roof Control Plan in question. 

The statements of section foremen to Mr. Hawkins on occasions when 

he was under unsupported roof advising him not to get caught and 

indicating that he was not being observed--when in fact he was and 

knew he was--created a.-climate of enforcement where Old Ben should 

reasonably have foreseen that Hawkins would continue to violate the 

Roof Control Plan and the particular provision thereof involved in 

this proceeding. I thus conclude that this is a pure application of 

the governing definition of unwarrantable failure and that the mine 

operator knew of violations and failed to abate the practices constituting such violations, and indeed to some extent the participation of agents of the mine operator (in this case the foremen) involved condonation of violations similar to the ones actually committed by Hawkins in this. case. Accordingly, I conclude that the 

operator through these foremen engaged in, as a minimum, indifference, and, as a maximum, a'willful disregard of the safety requirements which in a significant and substantial way contributed to the 

occurrence of the violation charged. I thus find no merit in the 

application for review in this proceeding. 

Penalty Assessment 

I have previously found Old Ben to be a large coal mine 

operator. It is not one of the giants of the industry. It has an 

unsatisfactory history of previous violations. It proceeded in good 

faith to achieve compliance with the safety standard violated upon 

being notified thereof and in accordance with the abatement terms 

specified by the issuing Inspector. Payment of a penalty appropriate to the violation will not jeopardize its ability to continue in 

business. I find that the violation in question was extremely 

1193 
• 

serious and resulted from the negligence of management personnel to 

adopt a reasonable enforcement climate with respect to safety 

matters at its No. 26 mine in general. No specific negligence in 

connection with this violation is attributable to any specific 

management person or supervisor. In this connection, I note that 

the six statutory assessment factors are necessary to be considered 

but they are not all-inclusive. 

I consider that the primary factor shown on the record in this 

proceeding which would militate for a lessening of the penalty was 

the testimony of MSHA's Inspector/Supervisor, Wolfe, to the effect 

that in terms of "incidents" (lost time accidents, etc), the No. 26 

mine has a commendable record in that such incidents are below the 

national average. 

Considering these various factors, I con~lude that the 

$3,000.00 penalty urged by the Secretary in its narrative of findings for a special assessment contained in Docket No. LAKE 82-85 is 

appropriate and it is so assessed. 

ORDER 

Citation No. 122295~ is affirmed and ~he contest of the Citation (Docket No. LAKE 82-66-R) is dismissed. 

In Docket No. LAKE 82-85, Old Ben is ordered to pay a civil 

penalty of $3,000.00 to the Secretary of Labor within 30 days from 

the date of this decision. 

Distribution: 

Charles C. Moore, Jr., 

[\.dministrative Law Judge 

Miguel J. Carmona, Esq., Office of the Solicitor, U. S. 

Department of Labor, 230 S. Dearborn St., 8th Floor, Chicago, 

IL 60604 (Certified Mail) 

• J Mark M. Pierce, Esq., Law Department, Old Ben Coal Company, 

69 West Washington St., Chicago, IL 60602 (Certified Mail) 

Michael Holland, Esq., United Mine Workers of America, 900 -

15th St., NW, Washington, DC 20005 (Certified Mail) 

1194 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

JUN 3 0 1983 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 80-90-M 

MSHA CASE NO. 02-01154-05001 

MOHAVE CONCRETE & MATERIALS COMPANY 

INC., 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

MINE: Havarin Ranch Pit & Mill 

Respondent. 

~~~~~~~~~~~~~~~~~~~ 

Appearances: 

Marshall P. Salzman, Esq., Office 

United States Department of Labor 

11071 Federal Building, Box 36017 

450 Golden Gate Avenue 

DECISION 

of the Solicitor 

San Francisco, California 94102 

For the Petitioner 

Mr. Quinto Polidori 

Mohave Concrete & Materials Co., Inc. 

4502 Highway 95N 

Lake Havasu City, Arizona 86403 

For the Respondent 

Before: Judge Virgil E. Vail 

PROCEDURAL HISTORY 

• 

This case arose from an inspection of respondent's sand and gravel 

operation at Havarin Ranch Pit & Mill, Lake Havasu City, Arizona. A representative of the Secretary issued four citations, charging violations of 

various mandatory safety standards promulgated under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act"). Petitioner 

seeks an order affirming the citations and proposed civil penalties. 

After notice to the parties, a hearing on the merits was held in 

Phoenix, Arizona. Respondent's president appeared pro se on behalf of the 

company. No post trial briefs were filed. 

1195 
ISSUES 

1. Did respondent Is activities during "set-up" at the sand and gravel 

operation mandate compliance with safety regulations promulgated under the 

Act, and justify issuance of citations for violations? 

2. If so, what are the appropriate civil penalties that should be 

assessed against the respondent for the violations, based upon the criteria 

set forth in section· llO(i) of the Act? 

STIPULATIONS 

At the outset of the hearing, the parties stipulated to several facts 

relevant to the assessment of penalties. It was agreed that respondent: 

1) is a small business; 2) abatetl the conditions cited as violations quickly; 

and 3) had no history of violations prior to. the ones assessed in this case. 

The parties further agreed to the Co"1!ffiission's jurisdiction to decide this 

case. 

SUMMARY OF EVIDENCE 

~spondent is owner and operator of a sand and gravel operation at 

Havarin Ranch Pit and Mill. In late 1978, respondent started the process of 

setting up a new plant which included installing and testing a recentlypurchased rock crusher. This was completed in September 1979. 

During January and February of 1979, Inspector Robert Hall of the Mine 

Safety and Health Administration (MSHA) made two visits to the non-operational facility. Hall visited the plant again on March 27, 1979. At that 

time, he noted gravel material being loaded onto trucks, hauled to the 

crusher, dumped into the crusher feed bin, and being processed and 

stockpiled, Under the authority of section 104(a) of the Act 1/, he 

issued four safety violation citations regarding such crusher operation. 

1/ Section 104(a) provides in pertinent part: 

If, upon.inspection or investigation, the Secretary or his authorized representative believes that an operator of a coal or other mine subject to 

this Act has violated this Act, or any mandatory health or safety standard, 

rule, order, or regulation promulgated pursuant to this Act, he shall, with 

reasonable promptness, issue a citation to the operator. Rach citation shall 

be in writing and shall describe with particularity the nature of the 

violation, including a reference to the provision of the Act, standard, rule 

regulation, or order alleged to have been violated. In addition, the 

citation shall fix a reasonable time for the abatement of the violation. 

1196 
EVALUATION OF EVIDENCE 

1) Citation No. 371765 - Failure to wear a hard-hat. 

Petitioner contends that failure of the crusher operator to w~ar a hard 

hat, as noted in citation No. 371765, violates 30 C.F.R. § 56.15-2 which 

provides as follows: 

Mandatory. All persons shall wear suitable hard hats when in or 

around a mine or plant where falling objects may 

create a hazard. 

Petitioner contends that during the operation of the crusher, as 

observed by the MSHA inspector, the operator was not wearing a hard hat or 

any other head protection. Petitioner maintains that such an omission 

represents a hazard to the crusher operator's safety, and thus constitutes a 

violation of federal regulation. Potential hazards include head injury to an 

operator caused by falling rock as it is dumped in the crusher bin, and 

flying rock from the crushing process. The inspector testified that such 

hazards should have been visually evident to respondent (Tr. 11). 

The respondent does not deny that the employee failed to have any head 

protection, but challenges issuance of the citation on several other grounds. 

First, respondent argues that the sand and gravel facility was still in a 

"set-up" status which was not completed until September, 1979. Further, the 

crusher was not being operated for commercial production but instead, was 

being run for test and mechanical adjustment purposes only. Finally, the 

respondent testified that the crusher "operator" was not a true operator, but 

a man hired and paid only to install and test the equipment (Tr. 13). 

I find that the evidence of record shows that the crusher was being 

operated by an employee, for whatever purpose, and that crushed rock was 

being produced and stockpiled. The stockpile on the date the citation was 

issued was ten feet high, a size consistent with on-going operations (Tr. 

25). 

The threshold issue to be decided, then, is whether the respondent's 

"set-up" activities required compliance with the Act's safety regulations. 

"Set-up" activities in this case involved operation of the rock crusher, and 

exposure of an operator without head protection to obvious hazards such as 

falling rock and potential head injury. Considering such hazards, I see no 

justifiable reason to distinguish between such "set-up" activities and those 

of a commercially productive operation. The mandatory regulatory provision 

requiring hard hats was therefore properly applied to the respondent's 

activities, and Citation No. 371765 is affirmed. 

1191' 
2) Citation No. 371766 - Failure to protect eyes. 

On the same day, Hall issued a second citation charging that the crusher 

operator was not wearing any type of eye protection. The standard allegedly 

violated, 30 C.F.R. § 56.15-4, provides: 

Mandatory. All persons shall wear safety glasses, goggles, 

or face shields or other suitable protective 

devices when in or around an area of a mine or 

plant where a hazard exists which could cause 

injury to unprotected eyes. 

Hall testified that at the time of his inspection, he observed the 

crusher in operation processing material. The employee operating the crusher 

wore no eye protection (Tr. 10-11). The hazard involved in such a situation 

is the potential injury to an operator's unprotected eyes due to flying rock 

particles produced during the mechanical crushing process. 

While the respondent does not deny the failure of the employee to wear 

any type of eye protection, it again contends that the sand and gravel 

facility was only in "set-up" stages, and seems to suggest that an employee 

hired only for machinery installations and testing purposes should be outside 

the control of such safety regulations. Despite the "set-up" status of 

respondent's facility and the temporary duration of the employee's work, I 

again find the hazards of such on-going "set-up" activities sufficient to 

warrant issuance of a citation for failure to wear eye-protection. Accordingly, I affirm Citation No. 371766. 

3) Citation No. 371767 - No working platform on crusher. 

A third citation was issued when Hall observed that a platform had not 

been provided on the crusher for the operator. Instead, as noted in the 

citation, "[t]he operator had to climb upon feeder frame to perform his 

duties." The standard allegedly violated, 30 C.F.R. § 56.11-1, provides 

Mandatory. Safe means of access shall be provided and 

maintained to all working places. 

Hall testified that on the day of the citation's issuance, he observed 

the crusher operator climb up the crusher, and balance on a 2 1/2 to 3 inch 

beam over the conveyor belt to do his work (Tr. 41). The operator was 

observing the feed and removing trash as it passed on the conveyor belt at 

the time of Hall's inspection (Tr. 42). A loss of balance by the operator 

would have resulted in either a fall forward onto t~e conveyor belt, or 

backwards onto the ground (Tr. 41). To minimize such hazards, the inspector 

recommended provision of a ladder and platform for easy and safe access. 

The respondent did not deny lack of such access, and had corrected the 

situation with a ladder and platform by the next day. However, in rebuttal, 

119B 
it claimed that such access to the operating crusher would not be required 

once all testing of the machinery had been completed. An individual, respondent stated, would need to be in a position over the machine, in order to 

remove debris, only during "set-up" (a period of about five months) (Tr. 44). 

In contrast, normal operating procedure would require the operator to stand 

approximately fifty feet from the machine, and shut down the crusher if a 

problem developed (Tr. 43). 

Despite such testimony as to th~ temporary nature of difficult and 

unsafe access, I find that the employee's precarious working position over 

the operating conveyor belt and the long period of time involved -in 

respondent's "set-up" activities are sufficient to mandate compliance with 

the Act's safety regulations requiring safe access. Therefore, Citation No. 

371767 was properly issued for respondent's failure to provide a working 

platform, and is affirmed. 

4) Citation No. 371768 - No fly-wheel guard. 

Citation No. 371768 was issued during the same inspection when Hall 

observed an unguarded fly-wheel on the crusher. While the crusher had two 

fly-wheels, one was guarded by location; the one on the operator-side of the 

crusher was not. The standard allegedly violated by such a condition, 30 

C.F.R. § 56.14-1, provides: 

Mandatory. Gears; sprockets; chains; drive, head, tail 

and takeup pulleys; flywheels; couplings, sbafts; 

sawblades; fan inlets; and similar exposed moving 

machine parts which may be contacted by persons, and 

which may cause injury to persons, shall be guarded. 

Hall testified that the dangerous condition created by the unguarded 

flywheel at respondent's facility was the possibility of a person falling 

into or getting clothing caught in the flywheel and hence being drawn into 

the machinery (Tr. 14). 

While the respondent does not deny that the flywheel was unguarded at 

the time of the inspection, it again challenges the citation on grounds 

related to plant "set-up." First, respondent claims·that the crusher machine 

had a flywheel guard, but that it had been removed to make necessary 

adjustments. Such adjustments require insertion of a tachometer between the 

flywheel and a shaft on the flywheel to measure running speed which is 

affected by the hardness of the rock being crushed (Tr. 20). Visual checks 

on the action of the flywheel, when the crusher is loaded and operating, are 

also claimed to be necessary (Tr. 21). 

Similar violations of safety standard 56.14-1, committed during set-up 

operations, have been discussed in previous cases. Administrative Law Judge 

1199 
Fauver ruled that no "testing" exception to requirements of guarding moving 

machine parts is expressly included or implied in standard 56.14-1. Union 

Rock and Materials Corp., 2 FMSHRC 645 (March 1980)(ALJ). In Erie Blacktop, 

Inc., 3 FMSHRC 135 (January 198l)(ALJ), Judge Kout~as found that a 

respondent's defense that a plant was not yet at full production, when a 

citation was issued for an unguarded flywheel on a crusher, does not excuse 

the operator's failure to guard exposed and moving machine parts. In 

contrast, a conveyor belt that has been shut down and locked out for repairs 

has-no need for guards. The Standard Slag Co., 2 FMSHRC 3312 (November 1980) 

(ALJ). 

Therefore, I find that the danger to the crusher operator's safety 

during respondent's "set-up" activities was sufficient to justify the 

issuance of a citation for failure to guard a flywheel. As was suggested by 

Hall, tests on the moving flywheel could still have been conducted if a hole 

had been drilled in the guard cover, allowing insertion of a tachometer and 

limited observation. Accordingly, I affirm Citation No. 371768. 

PENALTIES 

Since violations have been established, the next issue is the proper 

amount of civil penalties to be assessed for such violations. Section llO(i) 

of the Act-sets forth six criteria to be considered in determining the amount 

of the civil penalty: 

In assessing civil monetary penalties, the Commission shall 

consider the operator's history of previous violations, the 

appropriateness of such penalty to the size of the business of 

the operator charged, whether the operator was negligent, the 

effect on the operator's ab·ility to continue in business, the 

gravity of the violation, and the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance 

after notification of a violation. 

The Secretary's proposed civil penalties for each of respondent 

violations are as follows: 

Citation No. 

371765 

371766 

371767 

371768 

Standard Violation 

56.15-2 

56.15-4 

56.11-1 

56.14-1 

Total 

Amount 

$ 40.00 

40.00 

38.00 

66.00 

$184.00 

As stipulated by the parties, respondent's mine had no history of 

previous violations, and would be considered a small business. No argument 

was advanced by the respondent that payment of a reasonable penaly would 

impair its ability to continue in business. Therefore, I presume that no 

such adverse effect will be suffered through the payment of penalties I 

assess in this case. 

1200 

/ 
Respondent's failure to enforce head and eye protection requirements, 

provide safe access to machinery, and use flywheel guards, where such 

practices are ~andated by the Act's safety regulations, constitutes 

negligence. Negligence is defined in the Act's regulations (30 C.F.R. 

§_/l00.3 [d]) as "committed or omitted conduct which falls below a standard of 

care established by law to protect persons against the risk of harm." 

The standard of care established under the Act requires a mine operator 

"to be on the alert for conditions and hazards in the mine which affect the 

health or. safety of the employees and to take the steps necessary to correct 

or prevent such conditions or practices." 30 C.F.R. § 100.3(d). Under the 

facts of this case~ the operator failed to exercise reasonable care in 

preventing or correcting the practices and conditions (creating safety 

regulation violations) which were known or should have been known to exist, 

and constitutes ordinary negligence. See 30 C.F.R. § 100.3(d)(2). 

In determining the gravity of the violations, consideration must include 

the following: 1) probability of injury; 2) gravity of potential injury; 

and 3) the number of workers exP.osed to such potential injury. 30 C.F.R. 

§ 100.3. In the present case, while potential injuries could have been 

serious or even fatal, the probability of such injury is moderate. In considering the gravity of the violations, I have recognized that the facility 

was still at a "set-up" stage, with machinery being operated for test 

purposes and that only one worker was exposed to the risks.cited in these 

four citations. Therefore, ~ consider the gravity to be less than originally 

assessed by the representative of the Secretary. 

Upon notification of the violations, respondent abated all four 

violations within one day. Such prompt ab'atement demonstrated the good faith 

of respondent in attempting to achieve rapid compliance despite a belief that 

operations had not yet reached a point where compliance was necessary or 

practical. 

Based upon the stipulations entered into by the parties, the evidence of 

record, and the criteria for assessing civil penalties as set forth in the 

Act, I conclude that the civil penalties for each violation should be reduced 

and assessed as follows: 

Citation No. 

371765 

371766 

371767 

371768 

Reduced Penalty 

Total 

1201 

$20.00 

20.00 

20.00 

20.00 

$80.00 
ORDER 

WHEREFORF: IT IS ORDERED that citations Nos. 371165, 371766, 371767 and 

371768 are affirmed and respondent shall pay the above-assessed penalties 

totaling $80.00 within 30 days of the date of this decision, 

virgi 1 ifvail 

Administrative Law Judge 

Distribution: 

Marshall P. Salzman, Esq. 

Office of the Solicitor 

United States Department of Labor 

11071 Federal Building, Box 36017 

450 Golden Gate Avenue 

San Francisco, California 94102 

Mr, Quinto Polidori 

Mohave Concrete & Materials, Co., Inc. 

4502 Highway 95N 

Lake Havasu City, Arizona 86403 

1202 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

BRADLEY ABNER, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 30 1~ 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. WEST 83-54-DM 

ANAMAX MINING COMPANY, 

Respondent 

MSHA.£~se No. MD 83-06 

Appearances: 

Before: 

Anamax Mine 

DECISION 

Bradley Abner, Tucson, Arizona, .E.EE._ ~; 

Charles L. Fine, Esq., O'Connor, Cavanagh, Anderson, 

Westover, Killingsworth & Beshears, Phoenix, Arizona, 

for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

Complainant contends that he was discharged from the position 

he had with Respondent as a maintenance mechanic, because of activities protected under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 ~ ~·, ("the Act"). Respondent filed a motion to 

dismiss on the ground that the complaint was not timely filed and 

~id not state a cause of action under section 105(c) of the Act. 

The motion was denied by order issued March 24, 1983. 

Pursuant to notice the case was called for ' hearing in Tucson, 

Arizona, on June 7, 1983. Bradley Abner testified on his own 

behalf. Ben Dcirris and Linda Trice testified on behalf of 

Respondent. At the conclusion of the hearing, each party was given 

the opportunity to argue his position on the record. Based on the 

enti~e record and considering the contentions of the parties, I 

make the following decision: 

FINDINGS OF FACT 

Complainant began working for Respondent in June, 1979. He 

was hired as a maintenance mechanic. Although he had previously 

worked as a welder, a maintenance welder and a mechanic, his job 

at Anamax was the first job he had in the mining industry. 

1203 
While employed at Respondent's mine, Complainant at various 

times worked repairing pumps, repairing cyclones, rebuilding 

precipitators, and maintaining machinery in the crusher plant. 

During 1979, Complainant worked in the tailings pond under a 

foreman whose name he cannot recall. Beginning in 1980 and until 

June, 1982, he worked under foreman John Murphy. In September, 

1981, however; he was detailed to foreman Ben Dorris for about 

6 weeks, to help rebuild a precipitator. Subsequently, on another 

occasion he worked under Dorr~s rebuildini another precipitator. 

From June 21, 1982 until he was discharged effective October 7, 

1982, he again worked under Ben Dorris. 

In December, 1980, at a time when Complainant was working 

under John Murphy, an employee was killed by a crane. Although 

Complainant did not witness the accident because he was not working 

that day, he was interviewed by an MSHA investigator concerning the 

accident. In Complainant's opinion, the crane was unsafe because 

of the absence of a "limit switch" to stop the hook from going all 

the way up. Complainant does not recall whether he talked to his 

foreman about the absence of a limit switch. He did, however, tell 

the MSHA investigator ''about how the limit switches d~dn't work. and 

all that." (Tr. 15). About 2 weeks later, Complainant was given 

a "safety letter" by Murphy because he was not wearing ear plugs. 

Subsequently, after Murphy found him in a supply room waiting to 

get a welding rod, Complainant was given a verbal warning for not 

doing his job. 

A few weeks after the crane fatality, an employee was injured 

by a ram on the crusher machine. Complainant witnessed the injury 

but did not say anything about it to mgna~ement. 

Dorris was aware of the fatal injury in December 1980 involving the crane, and knew that ~omplainant was involved in the MSHA 

investigation. Dorris was not involved in the matter, however, and 

~oes not krtow what Complainant told MSHA. 

In approximately August, 1982, Complainant witnessed an 

incident in which cran~ operator Lindanar was instructed by his 

supervisor to raise the crane with the dust bowl attached and it 

caught under the crusher mantel. Complainant hollered to the 

foreman to have the crane lowered. Lindanar was suspended for 

3 days, but after Complainant told the Labor Relations Department 

what he saw, the suspension was lifted and Lindanar was paid for 

his lost time. 

Dorris considered Complainant an average worker. Prior to 

September, 1982, Complainant was never disciplined by Dorris. 

Company records, however, show that Complainant received a warning 

because of an unexcused absence from work on February 4, 1982. 

Complain~nt received a letter of commendation for a particular job 

in March, 1982. 

1204 
On September 13, 1982, Complainant told Dorr~s that he had 

just learned that his sister-in-law died and inquired about his 

entitlement to "funeral leave." Dorris informed him that he was 

not entitled to paid leave time under the contract. On 

September 14, Complainant told Dorris that he had changed his 

mind and was not going to the funeral. Dorris later rechecked the 

contract provision and determined that an employee was in fact 

entitled to funeral leave for attending the funeral of a sisterin-law, and he so informed Compla{nant. Complainant worked 

September 15, 1982, but was off September 16 and 17; his niece 

called in and said he was attending a funeral. When Complainant 

returned to work on Monday, September 20, Dorris asked him for 

verification that he had attended the funeral. 

On October 5, 1982, Complainant submitted a letter dated 

September 16, 1982, from the Eaton Funeral Home in Franklin, Ohio. 

The letter requested that Complainarit be excused for worked because 

he attended the funeral of Bernice Gabbard on September 16, 1982. 

_The typed date of the funeral had apparently been altered in ink 

from September 15 to September 16. The words "RELATIONSHIP: 

sister-in-law" were typed in, apparently with a different typewriter . 

. Dorris was stispicious of the letter and called the company Labor 

Relations Department. 

Linda Trice, Respondent's Labor Relations Administrator, 

called the funeral home and learned that the funeral had taken 

place on September 15, 1982, and the words. "RELATIONSHIP: 

sister-in-law" were not placed on the letter by the funeral home. 

Trice prepared a series of questions for Dorris to ask Complainant. 

Complainant maintained that he had attended the funeral of his 

sister-in-law in Ohio. Complainant was suspended October 7, 1982, 

pending final determination on disciplinary action, for falsifying 

iecords. Pursuant to the collective bargaining agreement between 

Respondent and the labor unions representing the employees, a 

hearing was held on October 8, 1982. The hearing was chaired by 

Linda Trice and was attended by Complainant, Ben Dorris and union 

representatives. Following the hearing, Respondent decided to 

discharge Complainant. The decision was made by Williams, Bodde 

and Trice of the Labor Relations Department and communicated to 

Complainant by Ben Dorris. The Labor Relations Department is 

ordinarily not involved in safety matters .. Trice was unaware of 

Complainant's participation in the MSHA investigation referred to 

earlier herein. The union did not file a grievance on Complainant's 

discharge. At the hearing herein, Complainant stated that he did 

not attend the funeral and that the deceased was his wife's aunt. 

He admitted that the letter from the funeral home was altered at 

his direction. 

1205 
On two prior instances employees were discharged by Respondent 

for falsifying records submitted to the company. 

ISSUE 

Whether the evidence establishes that Complainant's discharge 

was related to any activity protected under the Mine Safety Act. 

CONCLUSIONS OF LAW 

The burden of proof is on the Complainant to establish that 

he was engaged in activity protected under. the Act, and that the 

adverse action 'here, the discharge) was motivated at least in 

part by the protected activity. Secretary/Pasula v. Consolidation 

Coal Company, 2 FMSHRC 2786 (1980), rev'd on other grounds, 663 

F.2d 1211 (3rd Cir. 1981); Secretary/Robinette v. United Castle 

Coal Co., 3 FMSHRC 803 (1981). 

It is clear that Complainant's participation in the MSHA 

investigation of the fatal crane accident in December, 1980, was 

activity protected under the Mine Act. However, the long time 

interval between this activity and the adverse action itself 

argues against a relationship between the two. There is no positive evidence of such a relationship. It~might be inferred that 

the action of foreman Murphy about 2 weeks following the MSHA 

investigation - the safety letter and the verbal warning--were 

caused by irritation over Complainant's involvement in the investigation. But such an inference could not be made that the discharge 

of Complainant almost 2 years later was related to that investigation. Complainant expressed his belief that there was such a 

relationship, but has not offered any evidence to support it. There 

is no evidence, direct or indirect, that the discharge of Complainant 

~as in any way related to the injury to the employee involving the 

crusher ram or to the incident involving the crane operator who was 

suspended. 

The stated reason for the adverse action - Complainant's 

alleged submitting of false documents to obtain funer?l leave 

pay - is entirely unrelated to matters of health or safety. It is 

not part of my responsibility to consider whether the penalty was 

warranted or was too harsh. In any event, it was not safety related. 

Furthermore, it is clear that the persons who made the decision to 

discharge Complainant were entirely unaware of the activity he relies 

on here so there could not have been a relationship between the protected activity and the discharge. I conclude that Complainant's 

discharge did not result from activity protected under the Act. 

1206 
ORDER 

Based upon the above findings of fact and conclusions of 

law, the above proceeding is DISMISSED. 

Distribution: 

IJ 1 

J

tvi14-b5 M v~ck-1~.e£ James A. Broderick 

Administrative Law Judge 

Mr. Bradley Abner, 6760 So. Calle Gaviian, Tucson, AZ 85706 

(Certified Mail) 

Charles L. Fine, Esq., O'Connor, Cavanagh, Anderson, Westover, 

Killingsworth & Beshears, 3003 N. Central Avenue, Suite 1800, 

Phoenix, AZ 85012 (Certified Mail) 

1207 '!'U.S. GOVERNMENT PRINTING OFFICE : 1983 0-381-569/5281 

/fb