MAY 1989 

COMMISSION DECISIONS AND ORDERS 

05-09-89 Florence Mining Company 

05-10-89 Rushton Mining Company 

05-11-89 Robert Simpson v. Kenta Energy & Roy Dan Jackson 

05-30-89 Tennessee Chemical, Inc. 

05-08-89 Pennsylvania Electric 

05-08-89 A. H. Smith Stone Company 

05-10-89 Green River Coal Company 

05-30-89 L & L Gravel 

ADMINISTRATIVE LAW JUDGE DECISIONS 

05-01-89 

05-03-89 

05-05-89 

05-08-89 

05-08-89 

05-09-89 

05-09-89 

05-10-89 

05-11-89 

05-12-89 

05-15-89 

05-16-89 

05-17-89 

05-17-89 

05-18-89 

05-22-89 

05-22-89 

05-23-89 

05-23-89 

05-24-89 

05-24-89 

05-30-89 

05-30-89 

05-30-89 

05-30-89 

03-30-89 

Warren E. Manter Company, Inc. 

Oneida Coal Company, Inc. 

Falkirk Mining Company 

A. H. Smith Stone Company 

Colorado Silica Sand, Inc. 

Ozark-Mahoning Company 

Roger L. Stillion v. Quarto Mining Company 

Local 1570, Dist. 31, UMWA v. Eastern Associated 

Coal Corporation 

Kyanite Mining Corporation 

Camp Fork Fuel Company 

Blaine K. Deel v. Paroki Enterprises, Inc. 

Amber Coal Company, Inc. 

Stenson Begay v. Liggett Industries, Inc. 

C. W. Mining Company 

James H. Colquitt v. Ideal Basic Industries 

Edward Kraemer & Sons, Inc. 

Sec. Labor on·behalf of Manuel L. Gomez v. 

Mid-Continent Resources, Inc. 

Consolidation Coal Company 

Mettiki Coal Corporation 

Joliet Sand & Gravel Company 

Nevada Mineral Processing 

L & L Gravel 

William Mechanical & Welding, Inc. 

Florida Mining & Materials 

Beth Energy Mines, Inc. 

Texas Utilities Mining Co. 

ADMINISTRATIVE LAW JUDGE ORDER 

05-12-89 New Era Coal Company, Inc. 

PENN 86-29'{-R 

PENN 85-253-R 

KENT 83-155-D 

SE 85-63-M 

PENN 88-227 

VA 88-44-M 

KENT 88-152 

CENT 89-2-M 

YORK 88-43-M 

WEVA 88-204 

CENT 88-63 

VA 89-13-M 

WEST 88-337-M 

LAKE 88-128-M 

LAKE 88-91-D 

WEVA 88-227-C 

VA 89-11-M 

KENT 88-178 

VA 89-12-D 

KENT 88-136 

CENT 88-126-D 

WEST 88-290 

CENT 89-3-DM 

LAKE 88-129-M 

WEST 89-184-D 

WEVA 89-73 

YORK 88-30 

LAKE 88-138-M 

WEST 88-273-M 

CENT 89-2-M 

SE 88-72-M 

SE 88-101-M 

WEVA 88-268-R 

CENT 88-145 

KENT 89-21 

Pg. 747 

Pg. 759 

Pg. 770 

Pg. 783 

Pg. 793 

Pg. 796 

Pg. 800 

Pg. 803 

Pg. 805 

Pg. 810 

Pg. 842 

Pg. 848 

Pg. ·853 

Pg. 859 

Pg. 875 

Pg. 877 

Pg. 880 

Pg. 882 

Pg. 884 

Pg. 885 

Pg. 887 

Pg. 901 

Pg. 903 

Pg. 904 

Pg. 910 

Pg. 912 · 

Pg. 914 

Pg. 920 

Pg. 922 

Pg. 932 

Pg. 933 

Pg. 938 

Pg. 942 

Pg. 950 

Pg. 951 

MAY 1989 

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

Secretary of Labor, MSHA v. A.H. Smith Stone Company, Docket No. VA 88-44-M. 

(Judge Merlin, Default Decision, February 22, 1989) 

Secretary of Labor, MSHA v. Green River Coal Company, Docket No. KENT 88-152. 

(Judge Koutras, April 24, 1989) 

Donald Denu v. Amax Coal Company, Docket No. LAKE 88-123-D. (Judge Melick, 

April 7, 1989) 

Secretary of Labor, MSHA v. L & L Gravel, Docket No. CENT 89-2-M. (Judge 

Merlin, Default Decision, April 20, 1989) 

Review was denied in the following case during the month of May:· 

Secretary of Labor, MSHA v. Sanger Rock & Sand, Docket No. WEST 88-44-M, etc. 

(Judge Cetti, March 22, 1989) 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

FLORENCE MINING COMPANY 

May 9, 1989 

Docket Nos. PENN 86-297-R 

PENN 87-16 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

At issue in this consolidated contest and civil penalty proceeding 

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

§ 801 et seq. (1982)("Mine Act"), is whether the Florence Mining Company 

("Florence") violated 30 C.F.R. § 75.1704 by removing from service an 

approved emergency escape facility while miners were underground. lf 

Also at issue is whether the violation was significant and substantial 

in nature and caused by Florence's unwarrantable failure to comply with 

the mandatory safety standard. Commission Administrative Law Judge 

William Fauver answered these questions in the affirmative. 9 FMSHRC 

1180 (June 1987)(ALJ). For the reasons that follow, we affirm the 

judge's finding of a violation but reverse his unwarrantable failure and 

significant and substan~ial findings and remand the proceeding. 

lf Section 75.1704 essentially restates 317(f)(l) of the Mine Act, 30 

U.S.C. § 877(f)(l), and provides in part: 

Escape facilities approved by the Secretary or 

his authorized representative, properly maintained 

and frequently tested, shall be present at or in 

each escape shaft or slope to allow all persons, 

including disabled persons, to escape quickly to the 

surface in the event of an emergency. 

747 
The·material facts are not in controversy. Florence operates the 

Florence No. 2 Mine, an underground coal mine.located at Huff, 

Pennsylvania. The workings of the mine are reached by means of a "dual 

compartment" slope, approximately 620 feet in length, which has a belt 

entry in the top compartment and a track entry in the lower compartment. 

Supplies and equipment are lowered into the mine by a materials hoist 

located in the track entry. A concrete walkway, approximately 5 feet 

wide, with a handrail and lighting, is located on the left side of the 

slope beside the materials hoist track. Miners enter and leave the mine 

by means of the walkway. 

Prior to November 1985, Florence removed injured or disabled 

persons from the mine, either by handcarrying a stretcher up the walkway 

("stretchering out") or by transporting them on a weight car attached to 

the materials hoist ("hoisting out"). In late 1985, Florence's practice 

of hoisting out injured miners was challenged by representatives of the 

miners as being unapproved. Thereafter, Florence requested the 

Secretary of Labor's ("Secretary") Mine Safety and Health Administration 

("MSHA") to approve its use of the hoist as an escape facility. On 

March 4, 1986, MSHA approved the hoist as a means of transporting sick 

or injured miners to the surface. The resulting "Emergency Escape Hoist 

Facilities Plan" ("the plan") in part required that when miners were 

underground a person trained in the operation of the hoist be available 

within 30 minutes after notification to transport injured or disabled 

persons to the surface. ~/ MSHA's approval of the hoist as an 

emergency escape facility did not address Florence's pre-existing 

policy, acceptable under the standard, of stretchering out injured or 

disabled miners. 

In preparation for lowering a large piece of mining equipment into 

the mine on the weekend of August 16, 1987, Florence's management 

decided to replace the cable on the materials hoist. (Although the 

cable had several broken strands, it did not meet the regulatory 

criteria for mandatory retirement. lf) On August 13, 1986, after the 

morning shift had entered the mine by means of the walkway, the hoist 

was removed from -service for approximately five and one-half hours while 

the cable was replaced. Although Florence had notified the local union 

president that the cable would be replaced, the miners working 

underground on the August 13 morning shift apparently were not informed 

by Florence that the cable would be replaced during their shift. 

On August 14, the Johnstown, Pennsylvania, MSHA Subdistrict Field 

Office received a telephone call from a representative of the miners 

~/ Section 75.1704 does not specifically require an "Emergency Escape 

Hoist Facilities Plan," it merely requires Secretarial approval of 

"escape facilities" installed by the operator. By contrast, other 

standards, ~· 30 C.F.R. §§ 75.220 and 75.316, specify that plans are 

to be adopted by the operator and approved by the Secretary. We 

nevertheless adopt the characterization of the approval document as a 

"plan" to which the parties agreed. 

lf See, 30 C.F.R. § 75.1434. 

748 
requesting ·an inspection pursuant to section 103(g)(l) of the Mine 

Act. ~/ The request was based on the miners' belief that the new cable 

on the hoist had been damaged during its installation. 

When MSHA Inspector Ronald Gossard arrived at the mine on August 

14, he was presented with a written request for a section 103(g)(l) 

inspection of the cable. Pursuant to the request, the inspector 

conducted an inspection but determined that the cable was not in 

violation of any mandatory safety standards. The inspector was then 

given another written request for an additional section 103(g)(l) 

inspection concerning the fact that the cable had been replaced while 

miners were underground. Upon inquiry to Mine Superintendent Thomas 

Moran and others, the inspector ascertained that the hoist had been out 

of operation from 9:30 a.m. to 3:00 p.m. the previous day, while a 

production crew was underground. The inspector found this to be a 

violation of section 75.1704. He also found that the violation was 

significant and substantial in nature and the result of Florence's 

unwarrantable failure to comply with the standard. Therefore, the 

inspector issued to Florence Order No. 2697882 pursuant to section 

104(d)(2) of the Mine Act. ~/ 

~/ Section 103(g)(l) states in part: 

Whenever a representative of the miners or a miner 

in the case of a coal or other mine where there is 

no such representative has reasonable grounds to 

believe that a violatfon of this [Act] or a. 

mandatory health or safety standard exists ... such 

miner or representative shall have a right to obtain 

an immediate inspection by giving notice to the I Secretary or his authorized representative of such 

violation or danger •••• Upon receipt of such 

notification, a special inspection shall be made as 

soon as possible to determine if such a violation or 

danger exists in accordance with the provisions of 

this [Title]. If the Secretary determines that a 

violation or danger does not exist, he shall notify 

the miner or representative of the miners in writing 

of such determination. 

30 u.s.c. § 813(g)(l). 

~/ Section 104(d)(2) states: 

If a withdrawal order with respect to any area in 

a coal or other mine has been issued pursuant to 

paragraph (1), a withdrawal order shall promptly be 

issued by an authorized representative of the 

Secretary who finds upon any subsequent inspection 

the existence in such mine of violation similar to 

those that resulted in the issuance of the 

withdrawal order under paragraph (1) until such time 

as an inspection of such mine discloses no similar 

749 
The ·order states in relevant part: 

The slope hoist facility approved by MSHA to 

transport injured miners from the mine was removed 

from operation to replace the hoist cable while 

miners were underground. The hoist was not 

available for use from 9:30 a.m. to 3:00 p.m. on 

August 13, 1986. The operator's approved plan 

requires a person trained to operate the hoist shall 

be available when miners are underground to 

transport injured persons to the surface. This 

requirement implies that the hoist will also be 

available for use when miners are underground. 

The inspector subsequently modified the order to reflect his finding 

that management was aware that under the plan the hoist was required to 

be available to transport injured or disabled persons to the surf ace and 

that management nonetheless scheduled the hoist to be replaced while 

miners were underground. The modification further noted that the 

replacement of the hoist cable caused the approved escape facility to be 

inoperative for approximately five and one-half hours while miners were 

underground. 

Florence contested the validity of the order of withdrawal and the 

civil penalty of $400 proposed by the Secretary for the violation of 

section 75.1704 on the grounds that, under section 104(d), an inspector 

may only cite violations that the inspector observes in progress. 

Florence argued that even if there had been a violation, it had ceased 

before the inspector's arrival and, consequently, could not be cited in 

a withdrawal order issued pursuant to section 104(d). Florence also 

contended that, in fact, it had not violated section 75.1704, or, in the 

alternative, thqt the violation had not result~d from its unwarrantable 

failure to comply, nor was it significant and substantial in nature. 

The administrative law judge rejected Florence's contentions. The 

judge found that enforcement actions under section 104(d) "may be issued 

for violations that are reasonably recent, consistent with the prompt 

disposition intended by section 104(d), even though the violation ceased 

before the inspector's arrival on the scene." 9 FMSHRC at 1186. The 

judge also held that the inspector reasonably concluded that the 

provision in the plan requiring that a person trained to operate the 

hoist be available when miners are underground meant that Florence was 

required to keep the hoist in service while miners were underground. 

9 FMSHRC at 1187. The judge noted that section 75.1704 contains "no 

provision or exception allowing the operator to close or remove approved 

escape facilities while miners are underground." He therefore concluded 

that it was a violation of section 75.1704 for Florence to shut down the 

violations. Following an inspection of such mine 

which discloses no similar violations, the 

provisions of paragraph (1) shall again be 

applicable to that mine. 

750 
hoist while·its miners were underground. Id. In addition, the judge 

held that the violation was both caused by an unwarrantable failure to 

comply and significant and substantial in nature, and he assessed a 

civil penalty of $400. 9 FMSHRC at 1187-92. 

On review, Florence argues that the judge erred in four respects: 

(1) in concluding that a section 104(d)(2) order of withdrawal could be 

based upon a violation occurring prior to its detection by the 

inspector; (2) in finding a violation of section 75.1704; (3) in 

determining that the alleged violation was due to Florence's 

unwarrantable failure to comply with the standard; and (4) in finding 

that the violation was of a significant and substantial nature. We 

consider each of these challenges in turn. 

I. 

Subsequent to the judge's decision, the Commission issued a series 

of decisions addressing the first issue raised by Florence. Nacco 

Mining Co., 9 FMSHRC 1541 (September 1987), pet. for review filed, No. 

88-1053 (D.C. Cir. January 27, 1988); Emerald Mines Corp., 9 FMSHRC 1590 

(September 1987), affd., 863 F.2d 51 (D.C. Cir. 1988); White County Coal 

Corp., 9 FMSHRC 1578 (September 1987), pet. for review filed, No. 88-

1174 (D.C. Cir. March 1, 1988); and Greenwich Collieries, 9 FMSHRC 1601 

(September 1987). In these decisions the Commission concluded that a 

section 104(d) enforcement action may be based upon violations detected 

by an inspector even after the violations had ceased to exist. In 

particular, Nacco and Emerald involved the issuance of section 104(d)(l) 

citations for violations detected by inspectors during section 103(g)(l) 

inspections. The Commission found "nothing in the language of section 

103(g) that requires the violation to be ongoing when the inspector 

arrives at the mine site." 9 FMSHRC at 1548; 9 FMSHRC at 1594. 

Further, in White County Coal Corp., the Commi~sion concluded that 

"section 104(d) orders may be based upon violations detected by the 

inspector during an inspection occurring after the violation has ceased 

to exist." The Commission noted that "the focus of section 104(d) is 

upon unwarrantable failure by the operator, not upon whether its 

detection occurred concurrently with its commission." 9 FMSHRC at 1581. 

In affirming Emerald, supra, the United States Court of Appeals 

for the District of Columbia Circuit stated: 

The gravity of the mine operator's conduct does not 

turn on whether the operator was caught in or after 

the act. We are satisfied that the Commission's 

interpretation properly preserves "the unwarrantable 

failure closure order as an effective and viable 

enforcement sanction" ...• [W]e hold th~t the 

Secretary may make "unwarrantable failure" findings 

under section 104(d) of the Mine Act for violations 

that have abated before the inspector arrives at the 

site. 

Emerald, supra, 863 F.2d at 59 (citations omitted). Therefore, we hold 

that the judge correctly rejected Florence's argument that a withdrawal 

751 
order cannot properly be issued pursuant to section 104(d)(2) for 

violations detected after they have ceased to exist. 

II. 

We further conclude that substantial evidence supports the judge's 

conclusion that Florence violated section 75.1704. There is no dispute 

that, at Florence's request, use of the materials hoist was approved by 

the Secretary as an emergency escape facility to transport injured or 

disabled miners· from the mine. Exhibit GX-D. This approval required in 

part that "a person trained in the operation of the hoist shall be 

available when miner(s) are underground to transport injured persons to 

the surface," and that the hoist "be operative within 30 minutes after 

being alerted." Id. at Attachment 2, 4. We agree with the judge that 

the inspector's interpretation of the provisions of the plan to require 

that the hoist be kept in service while miners· are underground is 

reasonable. 9 FMSHRC at 1186-87. We therefore agree that Florence was 

required to keep the hoist in service while miners were underground. 

Here it is uncontroverted that, in order to replace the cable, Florence 

removed the facility from service for five and one-half hours on August 

13, 1986, while a production shift was underground. 

Florence argues that because the plan contained no express 

language specifying when the hoist cable could be changed and because 

Florence could stretcher out injured or disabled miners, it did not 

violate section 75.1704. These arguments miss the mark. Although 

Florence correctly notes that it was not foreclosed from stretchering 

out injured miners even after obtaining approval to use the hoist, once 

it had committed to utilize the hoist as an approved escape facility, 

Florence was obligated by the terms of the plan to maintain its 

availability within 30 minutes while miners were underground. We 

therefore affirm the judge's finding of a violation of section 75.1704. 

III. 

In decisions issued subsequent to the judge's decision, we held 

that "unwarrantable failure" means "aggravated conduct, constituting 

more than ordinary negligence, by a mine operator in relation to a 

violation of the Act." Emery Mining Corp., 9 FMSHRC 1997, 2004 

(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007, 2010 

(December 1987). In concluding that Florence unwarrantably failed to 

comply with section 75.1704, the judge stated that "the phrase 

'unwarrantable failure' means the failure of an operator to abate a 

condition or practice constituting a violation of a mandatory standard 

it knew or should have known existed, or the failure to abate such a 

condition or pra6tice because of indifference or lack of reasonable 

care." 9 FMSHRC at 1187-90. The judge determined that under either the 

"knew or should have known" or the "indifference or lack of reasonable 

care" construction, Florence "demonstrated an unwarrantable failure to 

comply with the cited safety standard when it deliberately shut down the 

hoist for 5! hours on a production day." 9 FMSHRC at 1191. Florence 

argues that the judge applied an incorrect legal standard in determining 

whether the violation was the result of its unwarrantable failure to 

comply, and that, in any event, the violation was not the result of its 

752 
unwarrantable failure. 

The Commission has previously reviewed the same construction of 

"unwarrantable failure" as was set forth by the judge in the present 

case, and has concluded that "[e]ven though the judge did not literally 

anticipate and apply the aggravated conduct standard cf unwarrantable 

failure enunciated in Emery, his treatment of the question of 

unwarrantable failure ... is in accord substantively with that 

decision." Quinland Coals, Inc., 10 FMSHRC 705, 708 (June 1988); see 

also The Helen Mining Company, 10 FMSHRC 1672, 1676 (December 1988). 

Therefore, the relevant inquiry is whether the evidence supports the 

judge's finding of unwarrantable failure. 

Florence argues that an unwarrantable failure finding is 

inappropriate due to the existence of a good faith dispute over the 

requirements of the approved emergency escape facilities plan. In 

support of this argument, Florence points to the lack of express 

language in the plan addressing when the hoist must be operable, the 

witnesses' differing interpretations of the plan provision mandating 

that a hoist operator be available when miners are underground, the fact 

that this was the first occasion since the hoist had become an approved 

escape facility that the cable was replaced, the lack of prior 

interpretative disputes with MSHA over the requirements of the plan and 

the availability of an alternative method of compliance with the 

standard (stretchering out). Florence also stresses that in issuing the 

withdrawal order the inspector found only "moderate" negligence in 

respect to the violation and that this finding conflicts with his 

further finding of an unwarrantable failure. 

In determining whether the judge's unwarrantable failure finding 

is supported by substantial evid~nce, we must consider the record as a 

whole including the evidence that "fairly detracts" from the finding. 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). Measured 

against this standard, we conclude that the judge's finding of 

unwarrantable failure cannot be sustained. 

As discussed, the inquiry is whether Florence's conduct in 

removing the hoist from service constituted aggravated conduct exceeding 

ordinary negligence. The great weight of the evidence establishes that 

Florence's on-shift repair of the hoist was not attributable to such 

aggravated conduct. Rather, as set forth below, it is clear that 

Florence's decision to remove the hoist from service was based on its 

own good faith belief that it was not prohibited from doing so by the 

terms of the approved escape plan and by virtue of the continued 

presence and availability of the slope walkway as a permissible escape 

route. 

First, the inspector and the mine superintendent agreed that the 

plan did not expressly address when the hoist cable could be replaced or 

serviced and did not expressly specify whether or when the hoist could 

be taken out of service when miners were underground. Tr. 21, 133. 

Also, this was the first occasion that the hoist cable had been replaced 

since the hoist had been approved as an emergency escape facility. 

Prior to this approval, no standard or plan proscribed replacement of 

753 
the hoist cable during production shifts, and it is undisputed that the 

issue of whether, or when, the approved escape facility could be removed 

from service had not previously arisen as an issue between Florence and 

MSHA. 

Second, it must be stressed that the stretchering out of injured 

miners along the illuminated, cement slope walkway was an acceptable 

means of compliance with the standard which does not require the 

presence of a mechanical escape facility in the type of slope in 

question. As the MSHA inspector indicated in his testimony, the 

approval of the hoist as an escape facility did not affect Florence's 

ability to remove injured miners by transporting them out of the mine on 

stretchers handcarried up the walkway. Tr. 86. Rather, this route 

remained as an "alternative or additional means of removing injured 

people." Id. The record makes it abundantly clear that the continued 

availability of this escape facility during the time that the materials 

hoist was out of service formed the basis for Florence's belief that 

removal of the hoist was not violative of the cited standard. 

Third, the MSHA inspector found that the level of Florence's 

negligence in connection with the violation was "moderate," a finding 

left unchanged during the two subsequent modifications of the order. In 

this regard, we note that MSHA Policy Memorandum Nos. 88-2C and 88-lM, 

issued April 6, 1988, provide that "evidence of moderate negligence will 

generally not support unwarrantable failure findings.'' As counsel for 

the Secretary admitted at the oral argument before the Commission in 

this case, the Secretary continues to adhere to the statement of 

position in the policy memorandum and the inspector's findings therefore 

"somewhat •.. conflict." Oral Arg. Tr. at 29-31. Although the validity 

of the interpretation set forth in the policy memorandum is not at issue 

in this case, we agree with Florence that the inspector's conflicting 

findings detract from the Secretary's arguments in support of the 

unwarrantable failure finding. 

In sum, in light of our review of the record as a whole, we 

conclude that Florence's action was a result of its mistaken, but good· 

faith, belief in the correctness of its interpretation of the plan and 

of the requirements of section 75.1704. Therefore, we conclude that 

Florence's conduct in connection with the violation did not constitute 

aggravated conduct exceeding ordinary negligence and the judge's 

contrary finding of an unwarrantable failure must be reversed. 

IV. 

Florence also challenges the judge's finding that the violation of 

section 75.1704 was of a significant and substantial nature. After 

affirming the violation, the judge determined that the purpose of the 

approved emergency escape facility was "to provide safe and relatively 

fast transportation of injured persons from the mine." 9 FMSHRC at 

1192. Stating that transportation by hoist was faster and superior to 

transportation by stretcher up the slope, the judge determined that 

"[b]y shutting down the hoist for 5~ hours while the day shift miners 

were underground, mine management consciously removed an important 

emergency protection of the miners" and that this reduction of 

754 
protection could "significantly and substantially contribute to the 

cause and effect of aggravated injury, or even death, ~· in case of 

severe shock, internal bleeding or burns." Id. 

Florence argues that the judge's finding of a significant and 

substantial violation is not supported by substantial evidence. It 

asserts that there is no medical evidence in the record supporting a 

finding that the unavailability of the hoist would result in an injury 

of a reasonably serious nature. Instead, it asserts that the testimony 

in this regard ·is comprised of only unfounded speculation. Florence 

further argues that the judge erred because he based his significant and 

substantial finding on a comparison of two methods for the evacuation of 

injured or disabled miners, a comparison in which stretchering out 

injured miners came up short, when, in fact, both methods of evacuation 

are acceptable to MSHA. We agree. 

A violation is properly designated as being of a significant and 

substantial nature if, based on the particular facts surrounding the 

violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably 

serious nature. Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 

(April 1981). In arriving at the definition of significant and 

substantial in National Gypsum, the Commission explicitly rejected the 

Secretary's position that significant and substantial violati.ons include 

all but "purely technical violations" or those "which pose risks having 

only a remote or speculative chance of happening." Id. at 826, n.5. In 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission 

explained: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum, tne Secretary of 

Labor must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety 

hazard -- that is, a measure of danger to safety --

contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will 

result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably 

serious nature. 

The third element of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard contributed to will 

result in an event in whiCh there is an injury," and that the likelihood 

of injury must be evaluated in terms of continued normal mining 

operations. Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th 

Cir. 1988); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 

1984); see also Halfway, Inc., 8 FMSHRC 8, 12 (January 1986). 

Our affirmance of the judge's finding that Florence violated 

section 75.1704 establishes the first element of the Mathies test. The 

second element requires the Secretary to prove that the violation of 

section 75.1704 presented a discrete safety hazard. The judge based his 

finding that the violation could "contribute to the cause and effect of 

755 
aggravated injury, or even death" upon the testimony of the inspector. 

9 FMSHRC at 1192. The inspector stated that stretchering out injured or 

disabled miners could result in aggravation of injuries or disabilities 

due to delay in reaching the surface, jostling of the stretcher, or 

reduced ability to effectively administer first aid. Tr. 26-28, 30-31, 

46-49, 87-88. We conclude that substantial evidence does not support a 

finding that the time difference between the two methods of evacuation 

presented a discrete safety hazard. Estimates of the time required to 

evacuate an average-sized miner up the slope via a stretcher varied from 

5-7 minutes to 10-12 minutes. Tr. 73, 101, 173. Estimates of the time 

required to evacuate a miner up the slope on the weight car ranged from 

2 to 3 minutes. Tr. 74-75, 171. Although all witnesses agreed that the 

actual hoisting out would be faster than stretchering out, 

Superintendent Moran emphasized that procedures involved in readying the 

hoist could lessen and even eliminate the time difference between the 

two evacuation methods. Tr. 74-78, 100, 111, 146, 173-74, 185-87. Even 

assuming that the hoist operator had been alerted and the hoist was at 

the bottom of the slope, the stretcher would have to be secured to the 

weight car, safety drags would have to be set, and the hoist operator 

would have to be notified to begin raising the hoist. See, e.g., Tr. 

50-53, 136-38. In addition, the inspector testified that the plan 

allowed for a delay of up to 30 minutes for the hoist operator to be 

located and alerted to lower the hoist. Tr. 74-80. In view of these 

facts, the evidence cannot be viewed as supporting the conclusion that 

stretchering out would result in a meaningful delay in reaching the 

surface and that utilization of the stretcher method would ipso facto 

constitute a discrete safety hazard. 

As to whether stretchering out miners could result in aggravation 

of their injuries or disabilities due to jostling of the stretcher or 

reduced ability to administer first aid, the inspector stated that he 

believed more severe injuries were likely if an injured miner were 

stretchered out of the mine. However, the inspector admitted that he 

was unfamiliar with the injury record at the No. 2 mine and did not know 

what injuries had occurred there. Tr. 47-48. The Secretary presented 

no evidence showing that the stretchering out of miners had resulted in 

exacerbated injuries or disabilities at the No. 2 mine, or, for that 

matter, at any other mine. 

Most importantly, the witnesses agreed that the use of stretchers 

was an acceptable method of evacuating injured or disabled miners to the 

surface prior to MSHA's approval of the hoist as an emergency escape 

facility and that even after the approval MSHA continued to regard the 

use of stretchers as an acceptable means of transporting mjners to the 

surface. Tr. 85-86. Put simply, if no hoist were in place at this 

slope mine, there would not even have been a violation since the walkway 

alone would have constituted full compliance with the standard in issue. 

Tr. 56, 68-69, 85-86. It would be anomalous, indeed, to conclude that a 

method of evacuation that would be acceptable in and of itself is 

somehow transformed into an evacuation method involving significant and 

substantial hazards simply because an approved alternative became 

temporarily unavailable. 

For these reasons, we conclude that substantial evidence does not 

756 
support the judge's finding that the violation of section 75.1704 was 

significant and substantial in nature. 

v. 

In sum, we affirm the judge's finding that Florence violated 

section 75.1704 by removing an approved emergency escape facility from 

operation while miners were underground, but we reverse the judge's 

findings that the violation was the result of Florence's unwarrantable 

failure and that it was significant and substantial in nature. 

Accordingly, we remand the proceeding for reconsideration of the civil 

penalty assessed in light of our reversal of the unwarrantable failure 

and significant and substantial findings. 

:}~d-~ Joyce A. Doyle, CommiSSiOil 

757 
Distribution 

R. Henry Moore, Esq. 

Buchanan Ingersoll 

58th Floor 

600 Grant Street 

Pittsburgh, PA 15219 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

758 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

RUSHTON MINING COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

May 10, 1989 

Docket Nos. PENN 85-253-R 

PENN 86-1 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

The question presented is whether the Commission may award Rushton 

Mining Company ("Rushton") reimbursement from the Secretary of Labor for 

its attorney's fees and litigation expenses as a sanction against the 

Secretary under Rule 11 of the Federal Rules of Civil Procedure ("Fed. 

R. Civ. P. 11") in a proceeding arising under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982) (the "Mine Act" 

or "Act"). ll In a prior order, we remanded this matter to Commission 

lf Fed. R. Civ. P. 11 provides: 

Signing of Pleadings, Motions, and Other Papers; 

Sanctions 

Every pleading, motion, and other paper of a party 

represented by an attorney shall be signed by at 

least one attorney of record in the attorney's 

individual name, whose address shall be stated. A 

party who is not represented by an attorney shall 

sign the party's pleading, motion, or other paper 

and state the party's address. Except when 

otherwise specifically provided by rule or statute, 

pleadings need not be verified or accompanied by 

affidavit. The rule in equity that the averments of 

an answer under oath must be overcome by the 

testimony of two witnesses or of one witness 

759 
Administrative Law Judge James A. Broderick for a determination of this 

issue. 9 FMSHRC 392 (March 1987). Judge Brod.erick concluded that 

monetary sanctions under Fed. R. Civ. P. 11 are not available in 

Commission proceedings and that, even if they were, the facts of this 

case would not support such an award. 9 FMSHRC 1270 (July 1987)(ALJ). 

We agree in result and affirm. 

On June 11, 1985, Donald Klemick, an inspector of the Department 

of Labor's Mine Safety and Health Administration ("MSHA"), conducted an 

inspection at Rushton's underground coal mine located in Centre County, 

Pennsylvania. Klemick issued to Rushton withdrawal order No. 2403926 

pursuant to section 104(d)(l) of the Mine Act, 30 U.S.C. § 814(d)(l), 

alleging a violation of 30 C.F.R. § 75.326. ~/ The withdrawal order 

sustained by corroborating circumstances is 

abolished. The signature of an attorney or party 

constitutes a certificate by the signer that the 

signer has read the pleading, motion, or other 

paper; that to the best of the signer's knowledge, 

information, and belief formed after reasonable 

inquiry it is well grounded in fact and is warranted 

by existing law or a good faith argument for the 

extension, modification, or reversal of existing 

law, and that it is not interposed for any improper 

purpose, such as to harass or to cause unnecessary 

delay or needless increase in the cost of 

litigation. If a pleading, motion, or other paper 

is not signed, it shall be stricken unless it is 

signed promptly after the omission is called to the 

attention of the pleader or movant. If a pleading, 

motion, or other paper is signed in violation of 

this rule, the court, upon motion or upon its own 

initiative, shall impose upon the person who signed 

it, a represented party, or both, an appropriate 

sanction, which may include an order to pay to the 

other party or parties the amount of the reasonable 

expenses incurred because of the filing of the 

pleading, motion, or other paper, including a 

reasonable attorney's fee. 

(As amended April 28, 1983, effective August 1, 1983.) (Emphasis 

added.) 

~I Section 75.326, taken from mandatory safety standards contained in 

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

seq. (1976)(amended 1977) and the Mine Act (~ 30 U.S.C. § 863(y)(l) 

(1976)(amended 1977) and 30 U.S.C. § 863(y)(l) (1982)), provides in 

relevant part: 

Aircourses and belt haulage entries. 

In any coal mine opened after March 30, 1970, the 

entries used as intake and return air courses shall 

be separated from belt haulage entries, and each 

760 
states: 

The West mains intake trolley haulage secondary 

escapeway entry was not separated from the parallel 

West mains belt haulage entry near the slope bottom. 

The permanent type stopping had been removed and was 

replaced by a brattice cloth check curtain on the 

belt side and by a runthrough type brattice cloth 

check on the trolley haulage side. Both curtains 

(checks) were installed in a poor workmanlike manner 

with excessive leakage from the belt into the track 

as was indicated by the use of smoke clouds. 

This order requires a permanent type stopping to be 

installed or the minimum of a substantial equipment 

door and a substantial check to serve as an adequate 

airlock. 

Because Rushton's mine was opened prior to March 30, 1970, and had 

more than two entries, the second sentence of 30 C.F.R. § 75.326 (n. 2 

infra) was applicable to the mine. Although the trolley haulage entry 

was not a primary intake entry, it functioned at times.as a component of 

the mine's air intake system. Due to the removal of the stopping 

between the trolley entry and the parallel belt entry and the 

installation of ineffective curtain barriers, air from the belt entry 

was entering the trolley entry. Under these circumstances, a violation 

of the second sentence of section 75.326 arguably would have occurred if 

air from the belt entry was used to ventilate active working places in 

the absence of an MSHA determination that such ventilation was 

"necessary." (In contrast, the first sentence of section 75.326, which 

applies to coal mines opened after March 30, 1970, provides that intake 

and return aircourse entries must be kept separate from belt haulage 

entries.) 

Rushton filed a notice of contest of the withdrawal order 

contesting the validity of the order, denying that there was any 

violation in this case, and contending that the order failed even to 

operator of such mine shall limit the velocity of 

the air coursed through belt haulage entries to the 

amount necessary to provide an adequate supply of 

oxygen in such entries, and to insure that the air 

therein shall contain less than 1.0 volume per 

centum of methane, and such air shall not be used to 

ventilate active working places. Whenever an 

authorized representative of the Secretary finds, in 

the case of any coal mine opened on or prior to 

March 30, 1970, which has been developed with more 

than two entries, that the conditions in the 

entries, other than belt haulage entries, are such 

as to permit adequately the coursing of intake or 

return air through such entries, ••• the belt 

haulage entries shall not be used to ventilate, 

unless such entries are necessary to ventilate, 

active working places .... 

761 
state a violation on its face. In response the Secretary filed an 

answer asserting that the order was properly issued. The Secretary also 

filed a petition for civil penalty proposing a penalty of $1,100 for the 

alleged violation. This matter was assigned to Judge Broderick, who 

subsequently consolidated it with additional penalty and contest 

proceedings arising from other citations and orders issued at the 

·Rushton Mine by Inspector Klemick. See Rushton Mining Co., 9 FMSHRC 325 

(February 1987)(ALJ). 

An evidentiary hearing in the consolidated cases was held before 

Judge Broderick on November 6, 1986. The testimony pertinent to this 

matter focused on the question of whether air in the trolley haulage 

entry had been used to ventilate active working places of the mine on 

the day that the withdrawal order was issued. Rushton's mine manager, 

Raymond Roeder, testified in essence that on that day air in the trolley 

entry was not being used to ventilate active working places but instead 

was being dumped in the return entry. Inspector Klemick's testimony 

concerning the alleged violation was, in our opinion, unclear and may 

have reflected some confusion as to the distinct requirements imposed by 

the first and second sentences of section 75.326. 

On February 3, 1987, after completion of the hearing and before 

any briefs were filed with respect to the withdrawal order in question, 

the Secretary filed a motion seeking leave to vacate the order and to 

withdraw the associated civil penalty petition. The motion states: 

Subsequent to a hearing on the merits in the 

above-captioned matter and upon additional review of 

the alleged violation, it has been determined that 

the petition should be withdrawn insofar as it 

concerns Citation No. 2403926, which should be 

vacated. The respondent has no objection to the 

Secretary's Motion. 

In his decision of February 20, 1987, ruling in the consolidated cases, 

Judge Broderick granted the motion without substantive comment, vacated 

the order, and dismissed the contest proceeding and associated civil 

penalty petition. 9 FMSHRC at 326. 

On March 20, 1987, Rushton filed with the Commission a Petition 

for Discretionary Review pursuant to section 113(d)(2)(A)(ii) of the 

Mine Act, 30 U.S.C. § 823(d)(2)(A)(ii), contending that in proceedings 

before the Commission a mine operator is eligible for reimbursement of 

its litigation expenses from the Secretary under Fed. R. Civ. P. 11 if 

the Secretary has engaged in the kind of litigation abuse covered by the 

rule, and that the facts of this case justified such an award. Rushton 

asserted that Fed. R. Civ. P. 11 should be applied to Commission 

proceedings pursuant to Commission Procedural Rule l(b), 29 C.F.R. 

§ 2700.l(b), which provides that "[o]n any procedural question not 

regulated by the Act, [the Commission's] Procedural Rules, or the 

Administrative Procedure Act (particularly 5 U.S.C. 554 and 556), the 

Commission or any Judge shall be guided so far as practicable by any 

pertinent provisions of the Federal Rules of Civil Procedure as 

appropriate." Rushton argued that the Secretary's answer to Rushton's 

762 
notice of contest, which alleged that the withdrawal order had been 

properly issued, "was not well-grounded in fact as evidenced by the 

subsequent Motion to Withdraw and vacation of the Order." PDR at 5. 

In an order issued on March 30, 1987, we stated that given the 

termination of the judge's jurisdiction upon issuance of his 

·February 20, 1987 decision (see 29 C.F.R. § 2700.65(c)), Rushton "did 

not have the opportunity to present the issue of reimbursement before 

the trier of fact." 9 FMSHRC at 392. We accordingly remanded the 

proceeding to Judge Broderick "for the purpose of developing a record 

and ruling on the issues" presented in Rushton's petition. 

In response to an order issued by Judge Broderick in the remand 

proceeding, the parties indicated that they did not wish to submit any 

evidence on the issues presented. In his decision, the judge denied 

Rushton's application for attorney's fees and other litigation expenses, 

concluding that Fed. R. Civ. P. 11 does not apply to Commission 

proceedings. The judge held that the procedural question of possible 

reimbursement of litigation expenses is "regulated" by Commission 

Procedural Rules 6 and 80, 29 C.F.R. §§ 2700.6 & .80, and that those 

rules do not authorize reimbursement of a party's expenses as a 

sanction. 9 FMSHRC at 1273. Therefore, he found it "unnecessary to 

look to the Federal Rules of Civil Procedure for guidance." Id. The 

judge stated that Commission Procedural Rule 6 was "obviously~odeled 

after Rule 11 of the FRCP except that it does not provide for a sanction 

when the rule is disregarded." Id. Although he found that certain 

sanctions could be assessed under Commission Procedural Rule 80, he 

concluded that they "do not include an order assessing costs or 

attorney's fees." 9 FMSHRC at 1272-73. The judge also determined that, 

even assuming the applicability of Fed. R. Civ. P. 11 as a guide, the 

record in this case would not support a conclusion that the Secretary's 

answer to Rushton's contest and the Secretary's civil penalty petition 

were not well grounded in fact or warranted by law. 9 FMSHRC at 1274. 

Rushton filed a Petition for Discretionary Review of this ruling, 

which we granted. We also heard oral argument. The essential question 

presented is whether the monetary sanctions provision of Fed. R. Civ. 

P. 11 applies to Commission proceedings. In accord with the judge, we 

conclude that it does not. 

The fundamental flaw in Rushton's position is that the Commission 

lacks authority to grant the relief requested. The barriers to the 

relief sought include the silence of the Mine Act on the subject, the 

nature of the Federal Rules of Civil Procedure, the bar of sovereign 

immunity, and the Equal Access to Justice Act (Pub. L. No. 96-481, 94 

Stat. 2325, reauthorized, Pub. L. 99-80, 99 Stat. 183) ("EAJA"). 

We begin with the Mine Act. No provision of the Act expressly 

empowers the Commission to award to a mine operator attorney's fees and 

costs from the Secretary in an administrative proceeding arising under 

the Act. Granting that Rushton is seeking attorney's fees and costs not 

as a prevailing party but, rather, as an alleged victim of litigation 

abuse, we nevertheless note that we have strictly interpreted the Act 

when determining whether such awards are due prevailing parties. For 

763 
instance, section 105(c)(3) of the Mine Act, 30 U.S.C. § 815(c)(3), 

specifically authorizes assessment of attorney's fees and costs in favor 

of a prevailing complainant in certain discrimination proceedings 

arising under section 105(c) of the Act. 30 U.S.C. § 815(c). In 

construing this provision, we have concluded, however, that attorney's 

fees ar~ not awardable to a complainant who retains private counsel in a 

·discrimination complaint proceeding brought by the Secretary of Labor on 

the complainant's behalf pursuant to section 105(c)(2) of the Act, 30 

U.S.C. § 815(c)(2). Odell Maggard v. Chaney Creek Coal Corp., etc., 

9 FMSHRC 1314, 1322-23 (August 1987), aff'd in part, rev'd in part on 

other grounds, 866 F.2d 1424 (D.C. Cir. 1989). We based this position 

on Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 643-44 (4th Cir. 

1987), in which the Fourth Circuit, applying the "American Rule" 

limiting availability of attorney's fees in the absence of statutory 

authorization(~ Alyeska Pipeline Service Co. v. The Wilderness Soc., 

421 U.S. 240, 247-71 (1975)), discerned no statutory warrant for private 

counsel fees in a discrimination complaint proceeding brought by the 

Secretary under 30 U.S.C. § 815(c)(2). Comparably, the absence of such 

an authorization in section 111 of the Act, 30 U.S.C. § 821, precludes 

the award of attorney's fees and costs in a compensation proceeding. 

Loe. U. 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493, 1498-99 

(November 1988), pet. for review filed on other grounds, No. 88-1873 

(D.C. Cir. December 16, 1988). We stated in Clinchfield: "[U]nder the 

'American Rule' applied to the Mine Act as set forth in the Fourth 

Circuit's [Eastern] decision, attorney's fees are not available to 

prevailing litigants under the Mine Act, except where the Act 

specifically authorizes such fees." 10 FMSHRC at 1499. Thus, as we 

have observed in a number of analogous contexts, the absence of specific 

statutory authorization for an asserted form of relief under the Mine 

Act "dictates cautious review •.•. " Council of So. Mtns. v. Martin 

County Coal Corp., 6 FMSHRC 206, 209 (February 1984), aff'd, 751 F.2d 

1418 (D.C. Cir. 1985). See also Kaiser Coal Corp., 10 FMSHRC 1165, 

1169-70 (September 1988). 

Similarly, as Judge Broderick correctly observed, none of our 

procedural rules, which establish procedures governing administrative 

litigation before the Commission arising under the Act, purports to 

grant the Commission such authority. Rule 11, upon which Rushton 

relies, is one of the Federal Rules of Civil Procedure, which "govern 

the procedure in the United States district courts in all suits of a 

civil nature ..•. " Fed. R. Civ. P. 1. The Commission, of course, is not 

a federal court. The Commission is an agency created under the Mine Act 

with certain defined and limited administrative and adjudicative powers. 

30 U.S.C. § 823; see generally, ~· Kaiser Coal, supra, 10 FMSHRC at 

1169-70; Old Ben Coal Co., 1 FMSHRC 1480, 1484 (October 1979). Rushton 

has not enlightened us with any federal court decisions supporting its 

novel proposition that a federal agency such as the Commission may 

employ Fed. R. Civ. P. 11 in administrative proceedings to support an 

award of attorney's fees against the federal government. (Rushton 

acknowledged this lack of judicial authority at oral argument. Tr. Arg. 

14.) Our own review of the case law under Fed. R. Civ. P. 11 persuades 

us that an administrative agency's grant of attorney's fees against the 

federal government under Fed. R. Civ. P. 11 in administrative 

proceedings would be unprecedented. 

764 
Rushton misconstrues our Procedural Rule l(b). Rule l(b) does not 

dictate that any particular Federal Rule of Civil Procedure be 

reflexively applied in Commission proceedings on procedural questions 

not regulated by the Mine Act, Administrative Procedure Act, or our own 

procedural rules. Rather, Procedural Rule l(b) merely states that in 

such circumstances, the Commission and Commission judges are to be 

·"guided so far as practicable" by the Federal Rules of Civil Procedure 

"as appropriate." Plainly, Procedural Rule l(b) reserves to the 

Commission considerable discretion in deciding whether and to what 

extent it is to be "guided" by a particular Federal Rule of Civil 

Procedure. In assessing the "practicability" and "appropriateness" of 

awarding attorney's fees and costs against the Secretary under Fed. R. 

Civ. P. 11, we are met with formidable obstacles, the doctrine of 

sovereign immunity and the clear applicability of the EAJA. 

It is a settled principle of federal law that the United States, 

as the "sovereign," is immune from suit except as it consents to be 

sued, and that the terms of such consent strictly limit a court's 

jurisdiction to entertain the suit. Block v. North Dakota, 461 U.S. 

273, 280 (1983); United States v. Mitchell, 445 U.S. 535, 583 (1980). 

A claim is against the sovereign if the judgment sought, as here, would 

draw on the public treasury. Dugan v. Rank, 372 U.S." 609, 620 (1963). 

Waivers of sovereign immunity '.'cannot be implied but must be 

unequivocally expressed." United States v. King, 395 U.S. 1, 4 (1969); 

United States v. Testan, 424 U.S. 392, 394 (1976). Only Congress may 

waive the sovereign immunity of the United States. Block, supra, 461 

U.S. at 280. The doctrine of sovereign immunity bars the award of 

attorney's fees and costs to be taxed against· an agency of the United 

States unless there is Congressional authorization. United States v. 

Chemical Foundation, Inc., 272 U.S. 1, 20 (1926); NAACP v. Civiletti, 

609 F.2d 514, 520 (D.C. Cir. 1979); Van Hoomissen v. Xerox Corp., 503 

F.2d 1131, 1132 (9th Cir. 1974); Pyramid Lake Paiute Tribe of Indians v. 

Morton, 499 F.2d 1095, 1096 (D.C. Cir. 1974), cert. denied, 420 U.S. 962 

(1975). --

In enacting the EAJA, Congress has occupied the relevant field in 

a manner, as we explain below, fatal to Rushton's claims here. The EAJA 

expressly permits attorney's fees and costs against the United States in 

administrative proceedings (5 U.S.C. § 504 (West Supp. 1988)) and in 

civil court proceedings (28 U.S.C. § 2412 (West Supp. 1988)). J/ Under 

5 U.S.C. § 504, a prevailing party in administrative litigation against 

an agency of the United States may be awarded fees and expenses "unless 

... the position of the agency was substantially justified or that 

special circumstances make an award unjust." In turn, we have 

promulgated rules implementing the EAJA in Commission adjudicatory 

proceedings. 29 C.F.R. Part 2704. We conclude that the EAJA is 

presently the exclusive remedy provided by Congress to prevailing 

litigants who seek reimbursement of their litigation expenses from the 

Secretary in Commission contest and civil penalty proceedings. 

lf The EAJA as originally enacted was effective for a three-year 

period, October 1, 1981, through October 1, 1984. The EAJA expired and 

Pub. L. 99-80 reauthorizing EAJA was enacted on August 5, 1985. 

765 
The EAJA, which was originally enacted in 1980 (P.L. 96-481), 

amended the Administrative Procedure Act by adding new section 5 U.S.C. 

§ 504 and also modified 28 U.S.C. § 2412. As originally enacted and as 

reauthorized, EAJA is intended to expand the liability of the United 

States for attorney's fees and other expenses in administrative 

proceedings and civil actions. H.R. Rep. No. 1418, 96th Cong., 2d 

·Sess. 5, reprinted in 1980 U.S. Code Cong. & Ad. News 4984; H.R. Rep. 

No. 99, 99th Cong. 1st Sess. 4, reprinted in 1985 U.S. Code Cong. & Ad. 

News 132. The primary purpose of EAJA is to ensure that certain 

eligible individuals, partnerships, corporations, business associations, 

and other organizations will not be deterred from seeking review of or 

defending against unjustified governmental action because of the expense 

involved in securing the vindication of their rights. H.R. Rep. No. 

1418, supra, at 5, 12 reprinted in 1980 U.S. Code Cong. & Ad. News 4984, 

4991; H.R. Conf. Rep. No. 1434, 96th Cong., 1st Sess. 21, reprinted in 

1985 U.S. Code Cong. & Ad. News 5010; H.R. Rep. No. 99, supra, at 4, 

reprinted in 1985 U.S. Code Cong. & Ad. News 132-33. The EAJA serves as 

a clear expression of Congress' waiver of soNereign immunity for the 

purpose of compensating eligible parties for the cost of litigation 

incurred as a result of unreasonable action by the United States. 

However, by its explicit terms, the EAJA sets economic limits for such 

relief and this restriction mandates our denial of Rushton's claim. 

The EAJA restricts eligible applicants to those individuals with a 

net worth of not more than $2 million and those small businesses and 

other entities with a net worth of not more than $7 million and not more 

than 500 employees. 5 U.S.C. § 504(b)(1)(B) (West Supp. 1988); 28 

U.S.C. § 2412(d)(2)(B) (West Supp. 1988). The Commission's EAJA rules, 

as amended, mirror these eligibility criteria. 29 C.F.R. § 2704.104(b) 

(54 Fed. Reg. 6284, 6285 (February 1989)). Rushton, a large mine 

operator, concedes that it does not meet these criteria and would have 

us use Fed. R. Civ. P. 11 to bypass the EAJA's ~ligibility standards and 

its failure to qualify under those standards. The EAJA and the doctrine 

of sovereign immunity cannot be so easily circumvented. 

Congressional waivers of sovereign immunity are strictly and 

narrowly construed, and a statute permitting claims against the United 

States must be confined to its explicit terms. See, ~· In re Oliver 

North, 842 F.2d 340, 342 (D.C. Cir. 1988); Unification Church v. INS, 

762 F.2d 1077, 1089 (D.C. Cir. 1985); Nichols v. Pierce, 740 F.2d 1249, 

1255-56 (D.C. Cir. 1984). These principles apply fully to the EAJA. 

Action on Smoking & Health v. CAB, 724 F.2d 211, 225 (D.C. Cir. 1984). 

In setting the size and dollar eligibility limitations in the EAJA, 

Congress determined that sovereign immunity was not waived as to 

entities of a size or with net worth above those limits. We are bound 

to respect that congressional choice. Cf. Kaiser Coal, supra, 10 FMSHRC 

at 1170. Under these circumstances, Rushton's proper appeal lies, not 

with the Commission, but with Congress -- to relax EAJA's eligibility 

requirements. ~/ 

~/ In Adamson v. Bowen, 855 F.2d 668 (10th Cir. 1988), decided just 

prior to oral argument in this case, the Tenth Circuit approved a grant 

of Fed. R. Civ. P. 11 attorney's fees against the federal government in 

766 
Finally, we conclude, as did the judge, that even if Fed. R. Civ. 

P. 11 did apply to Commission proceedings, the standards for an award 

have not been met. In general, under Rule 11, monetary sanctions may be 

imposed if a reasonable inquiry discloses that a litigant's pleading or 

other paper is not well grounded in fact, is not warranted in law, or 

has been interposed for any improper purpose. See, ~· Westmoreland 

-v. CBS, Inc., 770 F.2d 1168, 1174-80 (D.C. Cir. 1985). The rule is 

directed against unreasonable or abusive litigation. Westmoreland, 

supra, 770 F.2d at 1180. 

Here, Rushton asserts that the Secretary's answer to Rushton's 

contest and the Secretary's civil penalty petition were not well 

grounded in fact as evidenced by the Secretary's dismissal motion. 

However, we emphasize that, as the judge noted, Rushton failed to put 

forth any evidence, either in the original proceeding or in the remanded 

proceeding before Judge Broderick, to prove that allegation. As the 

judge properly observed: 

Rushton's brief assumes that it is self-evident, 

or at least evident from the record made in this 

case, that the Secretary's Answer in the cont.est 

case and his Petition in the penalty case did not 

meet the requirements of Rule 11 •••. [T]he record 

before me is limited to the testimony and exhibits 

addressed to the order and its propriety, and the 

fact that after hearing, the Secretary moved to 

withdraw the penalty petition as related to the 

order and to vacate the order. Rushton did not 

object to the motion and it was granted. It would 

be presumptuous in the extreme on the basis of such 

a record to conclude that the documents in question 

were filed by officers of the court ~ithout the 

belief that they were well grounded in fact and 

warranted by law. I don't know and the record does 

not show what inquiry was made prior to the filing 

of the documents •••• Therefore, even if Rule 11 

applied to Commission proceedings, I would conclude 

that this record does not show that it was violated. 

9 FMSHRC at 1274. 

civil litigation involving a social security disability applicant on the 

grounds that the civil branch of the EAJA, 28 U.S.C. § 2412, waived the 

government's sovereign immunity from fee awards made pursuant to the 

Federal Rules of Civil Procedure. 855 F.2d at 671-72. The court 

acknowledged that waivers of sovereign immunity must be construed 

strictly (855 F.2d at 671), and we read this decis,ion to mean that a 

party in federal civil litigation who otherwise would qualify as an EAJA 

applicant may be entitled to Rule 11 attorney's fees under appropriate 

circumstances. As emphasized in the text, there is no dispute here that 

Rushton does not qualify under the EAJA. Furthermore, Adamson does not 

address the more difficult question presented in this matter of whether 

federal agencies may apply Fed. R. Civ. P. 11 in their administrative 

proceedings. 

767 
On the basis of the present record, we will not disturb the 

judge's co~clusion that, if Fed. R. Civ. P. 11 were applicable, this 

case would not support the imposition of monetary sanctions against the 

Secretary. As the prosecutor under the Act, the Secretary has a duty to 

withdraw litigation that, upon further examination, she finds to be 

insufficiently founded. Cf. Robert K. Roland v. Secretary, 7 FMSHRC 

·630, 635-36 (May 1985). From all that can be gleaned from the existing 

record, the Secretary did just that. 21 

On the foregoing bases, we conclude that the monetary sanctions 

provision of Fed. R. Civ. P. 11 does not apply to Commission proceedings 

and that, even if it did apply, the record would not support the 

imposition of such sanctions. We therefore affirm the judge's decision 

denying Rushton's application. 

' 

Richard V. Backley, Commisiloner 

Joyce 

2_~d.~L A. Doy le, co1llffiiSS'(;ner 

A LastJka.~ ommissioner 

. - '/~,.. ' 

I , 

L-<--~ -Iv 

L. Clair Nelson, Commissioner 

21 In view of our determinations, we find it unnecessary to comment 

on the judge's construction of the meaning and effect of Commission 

Procedural Rules 6 and 80, 29 C.F.R. §§ 2700.6 & .80. 

768 
Distribution 

~oseph A. Yuhas, Esq. 

Rushton Mining Company 

P.O. Box 367 

Ebensburg, Pennsylvania 15931 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge James A. B.roderick 

Federal Mine Safety and Health Review Connnission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

769 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

ROBERT SIMPSON 

v. 

KENTA ENERGY, INC. 

and 

ROY DAN JACKSON 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 11, 1989 

Docket No. KENT 83-155-D 

BEFORE: Backley, Doyle, Lastowka and Nelson, Conunissioners 

DECISION 

BY THE COMMISSION: 

This discrimination proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)(the "Mine 

Act" or "Act"), is on remand to us from an opinion of the United States 

Court of Appeals for the District of Columbia Circuit reversing our 

prior decision in this matter. Robert Simpson v. FMSHRC, 842 F.2d 453 

(D.C. Cir. 1988), rev'g, Robert Simpson v. Kenta Energy, Inc. & Roy Dan 

Jackson, 8 FMSHRC 1034 (July 1986). This case involves a discrimination 

complaint filed by Robert Simpson alleging that he engaged in a 

protected work refusal and that Kenta Energy, Inc. ("Kenta") and Roy Dan 

Jackson constructively discharged him and refused to reinstate him in 

violation of section,105(c)(l) of the Mine Act. 30 U.S.C. § 815(c)(l). 

In a decision on,the merits and a supplemental decision as to Jackson's 

personal liability, Conunission Administrative Law Judge James A. 

Broderick upheld Simpson's complaint against Kenta and Jackson, and 

ordered Simpson reinstated with back pay, interest, attorney's fees, and 

litigation expenses. 6 FMSHRC 1454 (June 1984)(ALJ); 7 FMSHRC 272 

(February 1985)(ALJ). 

Jackson petitioned the Conunission for review, and we reversed the 

judge's decisions, concluding that Simpson did not engage in a protected 

-work refusal because of a failure to conununicate his safety concerns and 

that, in any event, he was not constructively discharged in violation of 

the Act. 8 FMSHRC 1034 (July 1986). Simpson appealed to the Court, 

which reversed and remanded with instructions to the Conunission to 

consider certain issues. In light of the Court's decision, we now 

resolve the remanded issues, decide remaining questions not reached in 

770 
our prior decision given our original disposition, and, on the following 

grounds, affirm the judge's decisions. 

I. 

The facts relating to Simpson's work refusal and the adverse 

actions are set forth in our earlier decision and need not be repeated 

in detail here. See 8 FMSHRC at 1035-37. Briefly, Simpson, a scoop 

operator at Kenta's No. 1 Mine, quit his job in September 1982 because 

of safety concerns based on conditions at the mine. Prior to leavlng 

work, Simpson failed to communicate those concerns to any supervisory 

representative of Kenta. In December 1982, approximately three months 

after he quit, Simpson met Roy Dan Jackson, Kenta's President, by 

chance, explained the safety concerns that had prompted his action, and 

asked for his job back. Jackson refused to rehire him. Shortly before 

his encounter with Jackson, Simpson had filed a discrimination complaint 

with the Secretary of Labor alleging that his severance of employment 

had amounted to a violation of section 105(c)(l) of the Mine Act. 

Following investigation of this complaint, the Secretary determined that 

no violation of the Act had occurred and Simpson then filed with this 

independent Commission his individual discrimination complaint against 

both Kenta and Jackson. See 30 U.S.C. §§ 815(c)(2) & (3). 

In his decision on the merits upholding Simpson's complaint, Judge 

Broderick found that Simpson's decision to leave his job represented a 

protected work refusal based on Simpson's reasonable, good faith 

concerns for his safety. The judge found that there was no qualified 

supervisor to perform required preshift and onshift examinations and 

that Simpson believed that they were cutting in the direction of 

abandoned works with no test holes being drilled. 6 FMSHRC at 1455-57, 

1460. Concerning the requirement in work refusal situations that a 

miner communicate his safety concerns to the mine operator prior to or 

reasonably soon after his work refusal (see, e.g., Secretary on behalf 

of Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126, 133 (February 

1982)), the judge found that Simpson had not communicated his safety 

concerns to Jackson. The judge excused the failure, however, on the 

grounds that Jackson had actual knowledge of the absence of a foreman 

and the failure to perform the preshift and onshift examinations and 

that communication would have been futile. 6 FMSHRC at 1462. The judge 

concluded that Simpson suffered an adverse action, a constructive 

discharge, because Simpson was subjected to working conditions so 

intolerable that he was forced to quit. 6 FMSHRC at 1460-61. The judge 

found that although Kenta and Jackson were not motivated to maintain the 

intolerable working conditions because of Simpson's protected activity, 

their motivation was not determinative as to whether discrimination had 

occurred. 6 FMSHRC at 1461. The judge further determined that 

Jackson's failure to rehire Simpson also violated section 105(c) of the 

Act. 6 FMSHRC at 1457, 1462-63, 1464. With regard to the latter 

finding, the judge rejected the operator's defense that Simpson would 

have been laid off in any event for economic reasons in January or 

February of 1983. 6 FMSHRC at 1462, 1463. 

At the conclusion of his decision on the merits, the judge 

directed further proceedings to resolve the question of whether 

771 
respondent Jackson was personally liable for the discriminatory acts in 

issue. 6 FMSHRC at 1464. The judge ordered Simpson to "file a 

statement explaining with particularity the legal basis of his claim 

against Respondent Jackson, and the evidence it expects to produce to 

establish that claim." Id. On June 27, 1984, Simpson submitted a 

Statement of Claim, essentially basing his assertion of Jackson's 

personal liability on doctrines of piercing the corporate veil and alter 

ego. On July 30, 1984, the judge issued an Order Permitting Further 

Discovery and Notice of Hearing. In part, the order dealt with 

Simpson's contention that Jackson should be held personally liable for 

the discrimination in question: 

Jackson's liability in this case depends upon 

whether he was the "person" who discharged 

Complainant in violation of section 105(c)(l) of the 

Act. This question may be related to the further 

question whether Jackson was the "operator" (defined 

in section 3(d) of the Act) of the subject mine. 

The questions whether Jackson was the alter ego of 

Kenta and whether Kenta's corporate veil may be 

pierced are important insofar as they may bear on 

the first question set out above. 

Order 2. In his February 1985 remedial decision, the judge concluded 

that Jackson was, in reality, the "operator" of the mine at all relevant 

times and found Jackson personally liable for the unlawful 

discrimination at issue. 7 FMSHRC at 273-78. The judge directed 

Simpson's reinstatement, the award of some $36,000 in back pay and 

interest, and payment of some $57,000 in attorney's fees and expenses. 

7 FMSHRC at 286. 

Jackson filed a Petition for Discretionary Review; Kenta did not. 

In his petition, Jackson challenged the judge's central conclusions with 

respect to Simpson's work refusal, the communication issue, and the two 

instances of discrimination. Jackson also assigned as error the judge's 

finding that Simpson would not have been laid off for economic reasons 

and further claimed that the judge committed a prejudicial error of 

procedure "by first establishing a procedure for trying the issue of 

Jackson's personal liability wherein Simpson framed the specific legal 

basis for his claims against Jackson and then issuing his [remedial] 

order on matters not specified by Simpson." PDR 15-17. Jackson raised 

no issues concerning the back pay or attorney's fees determinations. 

In our decision reversing the judge, we held that the judge erred 

in concluding that Simpson had engaged in a protected work refusal and 

that Simpson had been subjected to a discriminatory constructive 

discharge and failure to rehire. 8 FMSHRC at 1038-41 & n.4. With 

respect to the work refusal issue, we agreed with the judge that Simpson 

had a good faith, reasonable belief in hazardous conditions. 8 FMSHRC 

at 1038. However, focusing on the requirement that a miner communicate 

to the operator his health or safety concerns, we concluded that 

Simpson, without any showing of good reason, had failed to communicate 

such concerns "to anyone in authority prior to quitting his job on 

September 20, or even reasonably soon thereafter." 8 FMSHRC at 1039. 

772 
We rejected the judge's finding (6 FMSHRC at 1462) that any such 

conununication.by Simpson would have been futile: "Even assuming, as the 

judge did, that Jackson was aware of the absence of a foreman and the 

failure to conduct the required pre-shift and on-shift examinations, we 

cannot presume that Jackson would have taken no action had Simpson 

conununicated his concerns to Jackson." 8 FMSHRC at 1039-40. 

In addressing the constructive discharge issue, and assuming 

arguendo that Simpson had engaged in protected activity, we stated that 

"in order to establish a successful claim of constructive discharge, the 

miner must show that in retaliation for protected activity by the miner 

the operator created or maintained intolerable working conditions in 

order to force the miner to quit." 8 FMSHRC at 1040, citing Rosalie 

Edwards v. Aaron Mining, Inc., 5 FMSHRC 2035, 2037 (December 1983). We 

found "no evidence in this record that Kenta or Jackson were motivated 

to create or to maintain the conditions about which Simpson was 

concerned because of the exercise by Simpson of any rights protected by 

the Mine Act." 8 FMSHRC at 1040-41. Accordingly, we concluded that 

Simpson had not been constructively discharged in violation of the Act. 

In addition, we found insufficient record support for, and 

therefore reversed, the judge's additional conclusion that the failure 

to rehire Simpson constituted a further violation of section 105(c) of 

the Act. 8 FMSHRC at 1041 n.4. We also denied a motion filed on review 

by Simpson to reopen the proceedings to determine whether the Black Joe 

Coal Company was a legal successor to Kenta and, hence, liable for 

Kenta's alleged discrimination. 8 FMSHRC at 1041. Simpson had asserted 

that the judge's finding as to Kenta's liability was final and not 

subject to review insofar as Kenta was concerned because Kenta had not 

petitioned the Conunission for review of the judge's decision. We 

stated: 

Id. 

In his petition for review Jackson raised the 

central issue of whether Simpson was discriminated 

against in violation of the Act. We have concluded 

that no discrimination occurred in conjunction with 

Simpson's leaving the job. Because there is no 

violation of the Act, there is no liability on 

behalf of any respondent. In these circumstances, 

Simpson's argument that he had a binding judgment 

against Kenta because Kenta did not separately seek 

review is rejected. See, e.g., Arnold Hofbrau, Inc. 

v. George Hyman Construction Co., Inc., 480 F.2d 

1145, 1150 (D.C. Cir. 1973). 

Given our disposition of the case, we did not address the issues 

of whether Simpson would have been laid off in any event and whether the 

judge conunitted a prejudicial procedural error in the supplemental 

remedial proceedings. 

In its opinion reversing our decision, the Court approved in 

general terms the Conunission's Fasula/Robinette work refusal doctrine 

773 
(2 FMSHRC 2_786 (October 1980); 3 FMSHRC 803 (April 1981), respectively). 

842 F.2d at 458. The Court also specifically endorsed the Commission's 

Dunmire & Estle communication requirement in work refusal situations 

(4 FMSHRC 126 (February 1982)). 842 F.2d at 459. 

With regard to the subject of communication in a work refusal 

context, the Court noted that Simpson argued that the futility of 

communication issue was one of fact and that the Commission had 

impermissibly substituted its own view of the facts for that of the 

judge, while Jackson argued that the futility issue was one of law. 

842 F.2d at 459..:60. The Court opined that the "Commission's decision 

sheds little light on this [factual v. legal] aspect of the dispute." 

842 F.2d at 460. The Court quoted the Commission's discussion of 

futility (8 FMSHRC at 1039-40), and stated that it could not determine 

"whether the Commission meant to reject the legal standard applied by 

the ALJ, or, alternatively, whether the Commission simply regarded the 

ALJ's finding of futility as a fact determination that lacked adequate 

record support." Id. The Court suggested that the Commission's 

decision "could be~ead to maintain that there was substantial evidence 

only for a finding of 'possible operator awareness of a hazard,' 

[8 FMSHRC at 1040], and not for the conclusion that notice would have 

been futile." Id. 

The Court then engaged in its own evidentiary analysis, in which 

it concluded that substantial evidence supported the judge's findings 

"not only that Jackson was aware of conditions at the mine but also that 

he would have been unresponsive to any worker complaints about them." 

842 F.2d at 460-61. However, the Court stopped short of totally 

disposing of this issue because it felt that the Commission's decision 

may have been based on "an unarticulated conclusion that, as a matter of 

law, futility in· this context requires some showing beyond what the term 

means in common parlance, a showing Simpson may not have made." 

842 F.2d at 461 (emphasis added). The Court accordingly remanded the 

issue to us in the following terms: "We therefore remand the 

communication issue to the Commission for reconsideration, and for a 

clear explanation of why the futility exception should or should not 

apply to the facts of this case." 842 F.2d at 461. 

The Court next examined the constructive discharge issue, noting 

that "(a]ll parties apparently agree that if the work refusal was 

protected, a constructive discharge would have amounted to unlawful 

discrimination ...• " 842 F. 2d at 461. Relying on Clark v. Marsh, 

665 F.2d 1168 (D.C. Cir. 1981), a Title VII discrimination case, the 

Court distinguished between its own, preferred "objective" standard 

governing constructive discharges, and what it described as the 

Commission's "subjective," motivation-based standard. 842 F.2d at 461-

63. The Court approved the "objective" constructive discharge standard 

for Mine Act purposes. Id. The Court viewed the objective standard as 

requiring a showing that "an operator created or maintained conditions 

so intolerable that a reasonable miner would have felt compelled to 

resign." 842 F. 2d at 461. The Court attached weight to the fact that 

the Commission had recognized that respondents' "blatant violations of 

the Mine Act" had led to Simpson's leaving his job. 842 F.2d at 463. 

The Court concluded its examination by asserting in effect that there 

774 
was no question that conditions were intolerable at the Kenta No. 1 Mine 

and justified Simpson's work refusal. The Court then stated that 

resolution of the case therefore turned on whether Simpson's work 

refusal was protected -- the primary subject of remand. 842 F.2d 

at 463. 

Finally, the Court addressed the operator's failure to rehire and 

the motion to reopen. Regarding failure to rehire, the Court observed 

that if "Simpson's September work refusal was unprotected, the 

Commission's ruling [on rehire] would be sound, because the 

discrimination prohibited by the Mine Act requires some nexus to 

protected activity." 842 F.2d at 464. On the other hand, if "Simpson's 

work refusal was protected by the Mine Act, the evidence .•. would have 

supported the ALJ's finding that the refusal to rehire was based on 

protected activity, in violation of section lOS(c)(l)." Id. 

The Court's treatment of the Commission's disposition of Simpson's 

motion to reopen turned on the fact that Kenta had not separately sought 

review of the judge's decision. The Court regarded the Commission's 

disposition of that issue as amounting to a "vacation" of the judgment 

against Kenta, apparently not subscribing to the Commission's view, 

based on the Court's decision in Arnold Hofbrau, supra, that a finding 

of no liability at all in this matter would operate to relieve Kenta 

(and its successors) of liability under the judge's decision. The Court 

stated: 

The Commission's return to the merits of Simpson's 

case obviously may compel a return to this last 

holding, so we note at this point only the 

questionable consistency of the Commission's action 

vacating the judgment against Kenta Energy with its 

review authority. See .•• 30 U.S.C. 9 823(d) 

(limiting the grounds for discretionary review by 

the Commission, and denying authority to "raise or 

consider additional issues" not presented by the 

petition for review). 

842 F.2d at 464. 

II. 

We first address the specific issues that the Court remanded to 

the Commission, and then resolve the two questions remaining from the 

original proceeding on review. 

A. Issues on remand 

1~ Futility of communication 

The Court stated that our determination regarding futility of 

communication may have been based on our "conclusion that, as a matter 

of law, futility in this context requires some showing beyond what the 

term means in common parlance." 842 F.2d at 461. Such is not the case. 

775 
The Court specifically approved our statement of the conununication 

requirement associated with the right to refuse work as set forth in 

Dunmire and Estle, supra. In that decision, we held: 

Where reasonably possible, a miner refusing work 

should ordinarily communicate, or at least attempt 

to communicate, to some representative of the 

operator his belief in the safety or health hazard 

at issue. "Reasonable possibility" may be lacking 

where, for example, a representative of the operator 

is not present, or exigent circumstances require 

swift reaction. We also have used the word, 

"ordinarily" in our formulation to indicate that 

even where such communication is reasonably 

possible, unusual circumstances -- such as futility 

-- may excuse a failure to communicate. If 

possible, the communication should ordinarily be 

made before the work refusal, but, depending on 

circumstances, may also be made reasonably soon 

after the refusal. 

4 FMSHRC at 133 (emphasis added). 

As the Court recognized (842 F.2d at 460), Dunmire and Estle 

stands for the general proposition that communication issues should be 

resolved "in a common sense, not legalistic manner." 4 FMSHRC at 134. 

Accordingly, we do not view the futility exception to the communication 

requirement as a technical or restrictive concept. Rather, futility in 

this context is based on the common meaning of the term and covers 

situations in which a miner's communication of a health or safety 

concern would be ineffecti,re or useless. See generally Webster's Third 

New Int' l Dictionary (Unabridged) 925 (1986 ed.-)(definitions of "futile" 

and "futility"). If genuine futility is present, a miner's failure to 

communicate may be excused. Such a situation may occur, for example, 

where a mine operator has made clear that it will not address complained 

of hazards or where the operator has manifested "evident disdain for 

worker complaints" (842 F.2d at 460). 

Our earlier resolution of the futility issue was based on factual, 

not legal, grounds and meant only that we discerned a lack of 

substantial evidentiary support for what we viewed as the judge's 

"presumption" that conununication with Jackson would have been futile. 

See 8 FMSHRC at 1039-40. The court, however, has concluded that there 

is adequate record support for the judge's findings that Jackson was 

aware of the conditions at the mine and would have been unresponsive to 

worker safety complaints about those conditions. 842 F.2d at 460-61. 

Within the proper meaning of the Dunmire and Estle futility exception as 

explained above, the Court has effectively held that Simpson's failure 

to communicate is excused. In light of the Court's factual determinations, we so hold as well. Given our prior finding that Simpson's 

work refusal was based on a reasonable, good faith belief in a hazard 

(8 FMSHRC at 1038), we conclude that Simpson engaged in a protected work 

refusal under the Mine Act. 

776 
2. Constructive discharge 

The Court, agreeing with the judge, held that to establish a 

successful claim of constructive discharge under the Mine Act, a miner 

·must show that the operator maintained conditions so intolerable that a 

reasonable miner would have felt compelled to quit. 842 F.2d at 461-63. 

Noting our statement that "blatant violations of the Mine Act" existed 

at the mine prior to Simpson's work refusal (8 FMSHRC at 1038), the 

Court observed that such conditions "see[m] to preclude [the 

Commission's] rejection of the ALJ's finding [that· the operator 

maintained conditions so intolerable that a reasonable miner would have 

felt compelled to quit]." 842 F.2d at 463. Given the Court's 

disposition of this issue, we are constrained to conclude in this case 

that Simpson established that he was subjected to constructive discharge 

in violation of section 105(c)(l) of the Act. 

3. Refusal to rehire 

Given our disposition of the work refusal and constructive 

discharge issues, we additionally conclude that the refusal to rehire 

Simpson after he quit also constituted an act of unlawful 

discrimination. We had reversed the judge on this issue, finding 

insufficient record support for his conclusion to the contrary. The 

Court stated, however, that "[i]f Simpson's work refusal was protected 

by the Mine Act, the evidence . . . .would have supported the ALJ' s finding 

that the refusal to rehire was based on protected activity in violation 

of section 105(c)(l)." 842 F.2d at 464. In view of the Court's 

analysis of the relevant evidence, ,we accordingly adopt the Court's view 

and conclude that the refusal to rehire also violated the Act. 

4. Simpson's motion to reopen 

On review before the Commission, Simpson had moved to reopen the 

proceedings to determine whether Black Joe Coal Company was the legal 

successor to Kenta and should assume Kenta's liability to Simpson. We 

originally denied this motion in view of our conclusion that no 

violation of the Act had occurred. As noted, Kenta did not seek 

Commission review of the judge's decision. In the Court's apparent 

view, Kenta's failure to petition for review meant that, pursuant to 

operation of the statute, the judge's decision with regard to Kenta 

became a final decision of the Commission on April 7, 1985, 40 days 

after its issuance. 30 U.S.C. § 823(d)(l). No party sought review of 

that "portion" of the judge's decision in a United States Court of 

Appeals. 30 U.S.C. § 816(a). Under these circumstances, the Court 

appears to have treated the judge's decision as to Kenta as a final 

judgment that we lacked authority to review or "vacate." See 842 F.2d 

at 464. We adopt in this case the Court's view in that regard. 

Therefore, Simpson must be regarded as having received a final judgment 

holding Kenta liable to Simpson for the discriminatory acts at issue and 

for the relief ordered by the judge. 

Simpson's motion to reopen alleges generally that Kenta went out 

777 
of business and did not reinstate Simpson or pay him back pay, and that 

Black Joe Coal Company is Kenta's successor for purposes of Mine Act 

liability and should be held liable to remedy the respondents' 

discrimination. In Ronald Tolbert v. Chaney Creek Coal Corp., 9 FMSHRC 

1847 (November 1987·), we denied a similar motion to reopen a "final 

judgment" on the grounds that the relief sought was in the nature of 

enforcement of judgment and collection of a judgment debt and that such 

an enforcement request is properly directed to the Secretary of Labor, 

who is authorized pursuant to sections 106(b) and 108 of the Mine Act, 

30 U.S.C. §§ 816(b) & 818, to seek compliance with Commission orders in 

the federal courts. 9 FMSHRC at 1848. We subsequently made clear that 

if the Secretary declines to act in enforcement, all other remedies 

(including any remedies available in state courts) may be pursued. 

Danny Johnson v. Lamar Mining Co., 10 FMSHRC 506, 508-09 (April 1988). 

Accordingly, we deny Simpson's motion to reopen. Simpson may 

pursue his appropriate enforcement remedies elsewhere. We have today 

confirmed that his judgment against Kenta is final. There is no serious 

legal question that a Commission judgment may be enforced against a 

genuine successor. See generally Secretary on behalf of Corbin v. 

Sugartree Corp., 9 FMSHRC 394 (March 1987), aff'd sub nom. Terco v. 

FMSHRC, 839 F.2d 236 (6th Cir. 1987), pet. for cert. den., __ U.S. 

__ , 102 L.Ed 2d 36 (1988). We note that questions of successorship 

frequently arise in the context of enforcing judgment~. See, e.g., 

Christiansen v. Mechanical Contractors Bid Dep·ository, 404 F. 2d 324, 325 

(10th Cir. 1968) (proceedings for execution upon a judgment pursuant to 

Fed. R. Civ. P. 69). Thus, the Secretary on Simpson's behalf or 

Simpson, as the case may be, may seek enforcement of his claims in any 

proper enforcement forum. 

B. Additional Issues 

As noted, two issues were not decided in our original opinion 

given the other results that we reached. We now resolve those 

questions, both of which were previously briefed to us on review by the 

parties. 

1. The layoff issue 

Before the judge, Kenta had argued as a defense to the allegations 

of discriminatory discharge and refusal to rehire that "because of a 

recession in the coal business, [Simpson] would have been laid off in 

any event and that he was not rehired in December (1982] because there 

was no job for him." 6 FMSHRC at 1462. The judge rejected this 

defense, stating that "[t]he evidence does not show that [Simpson] would 

have been laid off for economic reasons." 6 FMSHRC at 1463. On review, 

Jackson argues that the judge erred in finding that Simpson would not 

have been laid off for economic reasons. The evidence in the record 

establishes that certain layoffs did occur at the mine in January or 

February 1983, after the December 1982 refusal to rehire Simpson. 

Therefore, given our conclusion above that the refusal to rehire was in 

violation of the Act, we view Jackson's and Kenta's assertions that 

Simpson would have been laid off in any event as a defense to the 

judge's order of reinstatement and award of back pay and interest. 

778 
In general, once discrimination has been found and a gross amount 

of back pay alleged, "the burden is on the employer to establish facts 

which would negative the existence of [backpay] liability to a given 

employee or which would mitigate that liability." NLRB v. Madison 

Courier, Inc., 472 F.2d 1307, 1318 (D.C. Cir. 1972), quoting NLRB v. 

Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963). Specifically, 

the burden of showing that work was not available for a discriminatee, 

whether through layoff, business contractions, or similar conditions, 

lies with the employer as an affirmative defense to reinstatement and 

backpay. See, e.g., NLRB v. Mastro Plastics Corp., 354 F.2d 170, 175-77 

(2d Cir. 1965), cert. den., 384 U.S. 170 (1966). Cf. Secretary of Labor 

v. Metric Constructors, Inc., 6 FMSHRC 226, 232-33 (February 1984), 

aff'd, 776 F.2d 469 (11th Cir. 1985) (operator bears burden of proof 

with respect to willful loss of earnings by back pay claimant). Thus, 

at trial the burden was on respondents to establish by a preponderance 

of the evidence Simpson's probable layoff as an affirmative defense to 

his claims for reinstatement and back pay. 

Judge Broderick concluded that respondents had not carried their 

burden of proof. The evidence on the subject was provided by the 

testimony of Jackson himself. Initially, Jackson testified that he had 

laid off two miners after Simpson left; that the mine was not "running 

much coal" and that he had been required to "cut the crew down real 

small;" that other miners in his crew were more experienced than 

Simpson; and that he would "lay the youngest men off first." Tr. 609, 

611-12, 614-16. In response to subsequent questioning by Judge 

Broderick, Jackson further stated that he "guess[ed]" that the two 

miners he had laid off were let go in January or February 1983; that 

they were "the youngest people [he] had"; that he "guess[ed]" that they 

had more seniority than Simpson; that he "guess[ed]" that "most" of the 

miners had more seniority than Simpson; that layoffs were also based on 

"job qualification"; and that one of the two laid off miners "might 

have" qualified for Simpson's scoop operator's job while the other would 

not have. Tr. 654-55. Significantly, Jackson testified that he did not 

always base layoff decisions on seniority, at times basing such 

decisions on the size of a miner's family and upon job qualifications. 

Tr. 315-16, 655. 

The judge weighed the respondents' evidence and found it lacking. 

Jackson's testimony lacks specificity as to how seniority was 

calculated. It also lacks certainty as to the seniority of the two laidoff miners or the retained miners in relation to Simpson, and as to how 

"job qualification" and family considerations figured into Jackson's 

decisions regarding layoffs. Further, the respondents did not introduce 

seniority lists or business records explaining the layoff decisions or 

the effects of the alleged recession on the mine's 'operation. 

The record evidence also shows that another miner, Roy Gentry, a 

former bolting machine operator, replaced Simpson as scoop operator 

after Simpson left. Gentry Dep. 3. This fact lessens the weight to be 

accorded Jackson's assertion that he had not hired any scoop operators 

to replace Simpson; apparently, he did not have to. There is no 

evidence of record as to how Simpson's incumbency in the scoop position 

would have been affected had he not left work. The respondents bore the 

779 
burden of proving that Simpson would have been laid off and we conclude 

that they failed to carry that burden. 

2. The procedural objection 

At the outset, it is important to clarify that Jackson is not 

claiming that there was a lack of notice or a procedural error in trying 

the question of his personal liability nor is he attacking on the merits 

any of the judge's substantive findings with regard to his personal 

liability. Jackson contends only that in concluding Jackson was an 

"operator" and personally responsible for the discrimination in 

question, the judge went beyond Simpson's supplemental statement of 

claim, which framed the issue of Jackson's liability in terms of 

piercing the corporate veil and alter ego. We find this objection 

semantic and without merit. 

The discrimination complaint and trial (~ Tr. 344-45) made clear 

that Simpson was pursuing Jackson as a co-respondent on theories of 

personal liability. Simpson's argument that the corporate veil should 

be pierced to show that Jackson was the alter ego of Kenta was simply 

another way of stating that Jackson was the real "operator," the real 

"person" in control of the personnel actions at the mine. The point of 

this approach was to show that Jackson should not be permitted to "hide" 

behind the corporate veil. We find Simpson's statement of claim 

reasonably clear in this regard. For example, at pp. 9-10 of the claim, 

Simpson asserts that "[f]rom this evidence it is clear that Jackson was 

the operator of the [mine] ... [and] that corporate formalities were not 

observed .... Jackson was the alter ego of Kenta." In other words, any 

evidence as to corporate control was relevant only to the extent that it 

clarified Jackson's status as an "operator" and·his personal 

responsibility for the events at issue. 

The judge's order of July 30, 1984, also made the nature of this 

issue reasonably clear. If the respondents were aggrieved by the 

judge's characterization of the question, they should have objected in a 

timely fashion to the judge himself -- a course they did not follow. In 

view of this, Jackson cannot be heard on appeal to complain that he was 

deprived of notice or prejudicially misled by Simpson's pleadings. 

Accordingly, we reject this procedural objection. 

780 
III. 

In sum, on the bases articulated above, we affirm the judge's 

conclusions that Simpson engaged in a protected work refusal and that 

Kenta and Jackson violated the Act when Simpson was discharged and 

refused rehire. We confirm the viability of Simpson's final judgment 

against Kenta. We deny Simpson's motion to reopen. Simpson may pursue 

all appropriate remedies for enforcement of the final judgment against 

Kenta. We affirm the judge's finding that respondents failed to prove 

that Simpson would have been laid off, and we reject the procedural 

challenge to the judge's actions below. Accordingly, Judge Broderick's 

decisions are affirmed. lf 

Richard V. Backley, 

L. Clair Nelson, Commissioner 

lf Chairman Ford did not participate in the consideration or 

disposition of this matter. 

781 
Distribution 

Tony Oppegard, Esq. 

Steven Sanders, Esq. 

Appalachian Research & Defense 

Fund of Kentucky, Inc. 

P.O. Box 360 

Hazard, Kentucky 41701 

David T. Smorodin, Esq. 

Steven D. Cundra, Esq. 

Thompson, Hine & Flory 

1920 N Street, N.W. 

Washington, D.C. 20036 

Dennis D. Clark, Esq. 

Vicki Shteir-Dunn, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

782 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

TENNESSEE CHEMICAL, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 30, 1989 

) 

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Docket No. SE 85-63-M 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982) ("Mine Act" 

or "Act"), Commission Administrative Law Judge William Fauver concluded 

that Tennessee Chemical Company ("Tennessee Chemical" or "operator") 

violated 30 C.F.R. § 57.3-20 (1984), a standard addressing the use of 

ground support in underground metal and nonmetal mines. We granted 

Tennessee Chemical's petition for discretionary review. On the bases 

that follow, we affirm. 

Tennessee Chemical operates an underground copper mine near Copperhill, Tennessee (the "Cherokee Mine") employing approximately 200 miners, 

working three eight-hour shifts per day, seven days a week. Copper and 

iron sulfide ore are mined using the sublevel stoping method. This case 

arose as a result of a fall of ground in a development tunnel. Development work (i.e., excavating tunnels for haulageways and travelways) was 

performed by crews who drilled blast holes into the tunnel face and back, 1/ 

set charges, blasted the rock, scaled the back, and removed the rock from 

1/ "Back", defined as "[t]he roof or upper part in any underground 

mining cavity" is generally considered the metal/nonmetal counterpart to 

the term "roof" in coal mines. "Fall of ground" or "rockfall" refer to 

"[r]ock falling from the roof into a mine opening." Dictionary of Mining, 

Mineral, and Related Terms 70, 410, 934 (1968). 

783 
the blast area. This development cycle would then be repeated. The crews 

were paid an incentive rate based on the number of feet they advanced the 

tunnel. The drilling was performed with the use of a three-boom pneumatic 

drill described as a "Jumbo." The holes were drilled and blasted on close 

centers in the back to provide a "smooth wall" that extended about 20 feet 

from the face. A "smooth wall" is a lip or brow intentionally left in the 

back after an explosion. Rock bolts were installed in the back on an "as 

needed" basis. Each development crew, working under the supervision of a 

development foreman, was to examine and scale the back in its own work 

places and to bolt, unless a large area needed bolting in which case a 

separate bolting crew would perform that work. 

Shortly before September 14, 1984, the development drift involved 

in this case (referred to as the 14 N 33) had been down for eight shifts 

because of adverse ground conditions. Rock bolts were installed up to 

the edge of the smooth wall and this work was completed on September 13. 

The bolter who performed this work, Mark Richards, installed an extra row 

of bolts at one place because he heard popping noises in the back and saw 

small bits of rock falling from it. Richards also bolted an area around 

a small bore hole in the drift, after Gary Williams, general mine foreman, 

ordered that it be bolted due to dangerous ground conditions in the area. 

On September 14, 1984, Steve Dillard and Joshua Waters, development 

drillers, began working a shift that started at 3:00 p.m. They were 

working with Frank Wright, development loader operator, in the 14 N 33 

drift, where they were tunneling a 16 by 18 foot opening to be used as 

a truck haulage road. The development foreman for their shift was 

Cleaston Morrow. 

When Dillard, Waters, and Wright arrived at the 14 N 33 drift with 

Hayden Stiles, equipment operator, they found that ·the heading had to he 

"mucked out," that is previously blasted rock left by the day shift 

development crew had to be removed. After blasting, it was the development crew's job to examine and scale the back, following which the loader 

operator would then commence mucking. Once that was completed, the cycle 

would be repeated. Dillard, Waters, and Stiles began scaling loose rock 

from the back while Wright went to get a loader to muck out the rock. 

Wright returned with the loader and Dillard told him the area was ready 

to be mucked. Wright and Stiles proceeded to muck out the area, and 

Dillard and Waters left the area. Most of the area had been mucked when 

a rock measuring about two feet wide by four feet long fell from the 

back, inby the last -row of bolts, landing in front of Wright's loader. 

Wright was frightened by the event as his loader had passed under the 

area where the rock fell. He also was angered because Dillard had told 

him the area had been scaled. 

After the fall of ground, Wright backed his loader into the N-28 crosscut and told Stiles what had happened. Wright then got into the dipper 

of Stiles' loader so he could reach the back and scale it with a scaling 

bar. Wright and Stiles scaled "quite a bit" of loose material, and then 

finished mucking the area. When that was completed Wright went to the 

office/lunchroom where he saw Dillard, Waters, and their foreman, Morrow. 

784 
Wright confronted Dillard because of the rock fall and the loose ground 

that had not been scaled. Wright also warned Dillard that some back had 

"blowed up." (This term refers to a bad ground condition signaling the 

potential danger of a fall; "blowing", as it is called, may include 

popping noises, cracking or the falling of fine pieces of material called 

fines or scales.) When Dillard and Waters returned to the drift they did 

no further scaling of the back, although they did scale the floor of the 

tunnel. They then began drilling holes in the tunnel face with the Jumbo 

when a rock six feet eight inches long, four feet ten inches wide and four 

to five inches thick fell from the back striking both of them while they 

were at the controls of the Jumbo. The rock killed Dillard and permanently injured Waters. At the time of the fall the men were approximately seven and one-half feet beyond the last bolted area. 

On the following morning, MSHA inspectors Frank Holiway and Eugene 

Mouser began an investigation. They inspected the 14 N 33 drift and interviewed mine officials and employees. As a result they issued a citation 

on September 15, 1984, charging a violation of 30 C.F.R. § 57.3-22. 2/ 

Almost two years later, on August 18, 1986, the citation was modified to 

instead allege a violation of section 57.3-20, which provided: 

'M..anda tory. 

Ground support shall be used if the operating experience of the mine, or any particular area of the 

mine, indicates that it is required. If it is required, support, including timbering, rock bolting, 

or other methods shall be consistent with the nature 

of the ground and the mining method used. 3/ 

2/ 30 C.F.R. § 57.3-22 (1978) provided: 

Mandatory. Miners shali examine and test the back, 

face, and rib of their working places at the beginning of 

each shift and frequently thereafter. Supervisors shall 

examine the ground conditions during daily visits to 

insure that proper testing and ground control practices 

are being followed. Loose ground shall be taken down 

or adequately supported before any other work is done. 

Ground conditions along haulageways and travelways 

shall be examined periodically and scaled or supported 

as necessary. 

3/ Although we are construing § 57.3-20 as it appeared in 1984 we note 

that the standard has since been revised and renumbered and now provides: 

Scaling and Support - Underground Only 

§ 57.3360 Ground support use. 

Ground support shall be used where ground conditions, 

or mining experience in similar ground conditions in 

(Footnote continued) 

785 
A hearing was held before Judge William Fauver on April 14 and 15, 

1987. In his decision the judge affirmed the citation and assessed a 

$7,500 civil penalty. 

In finding that Tennessee Chemical violated section 57.3-20 the judge 

first construed the standard, focusing upon the term "operating experience." 

The judge held "that 'operating experience' sufficient to indicate the need 

for roof support does not have to be at the point of an immediate danger of 

a roof falling, but includes [the] danger of a potential roof fall." 

10 FMSHRC at 377. The judge also considered a prior fall of ground fatality 

at the Cherokee Mine as part of the mine's operating experience. 10 FMSHRC 

at 387. 

Crediting and relying upon the testimony of MSHA supervisor M. Turner 

and inspectors Holiway and Mouser, the judge found that the areas of loose 

rock viewed by those individuals after the Dillard fatality existed prior 

to that event and were not caused by the fall of ground. The judge further 

concluded that the 14 N 33 drift had poor ground conditions, was dangerous, 

and needed support where Dillard and Waters had been working. 10 FMSHRC at 

378. The judge rejected Tennessee Chemical's position that the fall of 

ground was a surprise and that it had an effective "layered" ground control 

system under which miners, front-line supervisors, and upper management 

all played a role in monitoring and controlling ground conditions. On 

this point the judge found that there was a breakdown in communication on 

each of these levels. 10 FMSHRC at 382, 387. 

The first issue raised by Tennessee Chemical on review is whether it 

was reversible error for the judge to consider a prior fatality as part of 

the mine's "operating experience," as that term is used in § 57.3-20. 

The prior fatality considered by the judge occurred on January 27, 

1984, when Ted Ledford, a development driller like Dillard and Waters, was 

killed while operating a Jumbo drill at the Cherokee Mine. Although the 

Ledford fatality occurred in a different drift, like the instant case, the 

miner was killed while drilling blasting holes into the face and a large 

rock fell from the back. MSHA investigated the Ledford fatality but did 

not issue any citations or orders for violation of safety standards. The 

MSHA investigation concluded in a report issued February 22, 1984, that 

the cause of the accident was the failure of management and employees to 

Fn. 3/ continued 

the mine, indicate that it is necessary. When ground 

support is necessary, the support system shall be 

designed, installed, and maintained to control the 

ground in places where persons work or travel in performing their assigned tasks. Damaged, loosened, or 

dislodged timber use (sic) for ground support which 

creates a hazard to persons shall be repaired or replaced prior to any work or travel in the affected area. 

30 C.F.R. § 57.3360 (1988). 

786 
detect loose ground. Exhibit P-6. 10 FMSHRC at 372, 373. MSHA also 

believed that a contributing cause may have been that vibrations from the 

Jumbo drill may have loosened unstable ground. The report contained 

recommendations that supervisors review proper ground control procedures 

with the miners and that overhead protection be provided on all mobile 

equipment where feasible. MSHA further advised in the report that to 

prevent future rock fall accidents there must be continued surveillance 

of day-to-day ground conditions and continual scaling of the back and 

ribs. Id. 

The judge observed that in its investigative report of the Dillard/ 

Waters accident MSHA made the same findings as to the cause of the 

accident and repeated its earlier recommendations. 10 FMSHRC at 372-374. 

The Dillard report also recommended that, where necessary for ground 

support, rock bolting should be as near to the face as possible. Id. 

Tennessee Chemical contends that it was reversible error for the 

judge to consider the Ledford fatality as part of its operating experience 

and asserts that operating experience should not encompass prior incidents 

that are free of operator culpability. Since MSHA did not issue any citation in connection with the Ledford fatality, Tennessee Chemical contends 

that it had been exonerated of any culpability. Therefore, according to 

Tennessee Chemical, consideration of this incident in the present proceeding subjects it to double jeopardy. 

The Secretary contends that the Ledford fatality is relevant to 

Tennessee Chemical's operating experience within the meaning of 57.3-20 

and that it is also relevant to the issue of Tennessee Chemical's 

negligence. The Secretary notes that the judge also evaluated the conditions in existence in the 14 N 33 drift prior to and at the time of the 

Dillard/Waters incident as part of the mine's operating experience apart 

from the Ledford fatality. 

We hold that it was proper for the judge to consider the Ledford 

fatality, as well as the events occurring in the 14 N 33 drift in the 

days preceeding the Dillard/Waters incident, as part of Tennessee 

Chemical's operating experience within the meaning of section 57.3-20. 

As noted hy the judge, the Commission has previously interpreted the 

standard in issue. In White Pine Copper Range Company, 5 FMSHRC 825 (1983), 

("White Pine") we observed that the dictionary definition of the key word 

"exper.ience" included "practical wisdom resulting from what one has 

encountered, undergone, or lived through" and that "a mine's 'operating 

experience' broadly encompasses all r~levant facts tending to show the 

condition of the mine roof in question and whether, in light of the roof 

condition, roof support is necessary." White Pine, 5 FMSHRC at 836. 

We further observed that operating experience is determined by looking 

at the mine's prior operating history and present day experience and 

that "this determination takes into account the operating history of 

the mine (i.e., its past mining practice) geological conditions, 

scientific test or monitoring data and any other relevant facts tending 

to show the condition of the mine roof in question and whether in light 

of those factors roof support is required in order to protect the miners 

from a potential roof fall." Id. at 838. 

787 
While the Ledford fatality occurred in January 1984 in a different 

drift, it shared the following commonalities with the September 1984 

Dillard fatality: development work was being performed; the victims 

were drilling blasting holes into the face with a Jumbo drill; loose 

ground had been neither adequately scaled nor bolted; the victims were 

working under an unbolted area; and a large rock fell from the unbolted 

area causing the fatal injury. 10 FMSHRC at 372. 

We view these common factors as sufficient to bring the Ledford 

fatality within the scope of the term "operating experience." Indeed 

the operator does not attempt to distinguish the circumstances surrounding 

the two fatalities. Instead, Tennessee Chemical raises only a "fairness" 

objection to consideration of the Ledford fatality. 

To ignore the operator's previous experience simply because no violations had been alleged would place a severe limitation upon what would 

otherwise be considered a part of operating experience. Since the 

White Pine test for "operating experience" takes an inclusive approach 

allowing consideration of all relevant facts, Tennessee Chemical's argument 

that operating experience should be tied to culpability is inconsistent 

with that precedent. 

While the operator asserts that this amounts to "double jeopardy", 

we reject that argument for several reasons, chief among them being that 

the concept is limited to situations where a defendant has been punished 

in a prior criminal proceeding and the Government is now seeking a second 

punishment for the same offense. United States v. Halper, 57 U.S.L.W. 

4526 (U.S. May 16, 1989)(No. 87-1383); 21 Am. Jur. 2d Criminal Law§ 244, 

249. Here, there was no prior criminal proceeding. The Secretary is not 

seeking a civil penalty in connection with the Ledford fatality, nor is 

she seeking to litigate the facts surrounding that event. The Ledford 

fatality accident report was introduced only to show that the event was 

part of the mine's operating experience. 

We also find no basis for Tennessee Chemical's assertion that the 

judge based his finding of a violation upon the Ledford incident. The 

judge clearly relied upon a great deal of other information about the 

conditions in the 14 N 33 drift in concluding that Tennessee Chemical's 

operating experience was such that it should have known that ground 

support was needed. The judge recounted the following as part of 

Tennessee Chemical's ground support operating experience: 

Shortly before the Dillard fatality the 14 N 33 drift had been down 

for eight shifts due to adverse ground conditions. Extra rock bolts were 

installed up to the edge of the smooth wall and this was completed on 

September 13, 1984. 10 FMSHRC at 371; Tr. 308, 309, 312, 315, 319, 324, 

344, 482, 483. Rock bolter M. Richards testified that he installed these 

bolts and that he put in an extra row of bolts due to popping noises in 

the back and fines falling from the back. 10 FMSHRC at 378; Tr. 315, 

318, 319. On or about September 13, 1984, Richards also bolted around 

a small bore hole which was located 15 feet from the place where Dillard 

was killed. This bolting .was ordered by the general mine foreman, G. 

Williams, because of the dangerous ground conditions. 10 FMSHRC at 371; 

788 
Tr. 310-312. Prior to the Dillard fatality Richards told his supervisor, 

L. Hicks, o.f the dangerous ground conditions he encountered. 10 FMSHRC 

at 371; Tr. 324, 325, 326. 

Tennessee Chemical's manager of mining, A. Edey and Dr. Ross Hammet, 

a mining engineer consultant, testified that noise in the back and falling 

of small and large rocks as well as the necessity of installing rock bolts 

in a particular area are all part of a mine's operating experience. 

10 FMSHRC at 372; Tr. 521, 522, 618. Miners F. Wright and T. Mason (part 

of the 14 N 33 development crew) testified about the bad ground conditions 

they experienced in that drift prior to the Dillard fatality. 10 FMSHRC at 

372, 385; Tr. 179, 182, 183, 204, 230, 264, 270, 281. 

In July, 1984, Dr. Ross Hammet advised Tennessee Chemical that while 

systematic rock bolting was not then indicated, the requirement for ground 

support should be determined by continuing to observe local geological 

conditions that might ultimately dictate the need for systematic bolting. 

10 FMSHRC at 372, 386; Exhibit P-27 at 10; Tr. 602-611. 

Most importantly, immediately before the Dillard fatality, a 2 foot 

wide by 3 to 4 foot long rock fell in front of Wright's loade~.while he 

was mucking out the 14 N 33 drift. Wright informed Dillard of the fall 

and warned him that the back had "blowed up." C. Morrow, the development 

foreman, overheard Wright tell Dillard of these conditions. 10 FMSHRC 

at 370; Tr. 164, 167, 171. 

Turner, and MSHA inspector E. Mouser testified that the loose rock 

they observed upon visiting the scene of the Dillard fatality on 

September 15th and 17th existed prior to the fatality and was not caused 

by the rock fall. 10 FMSHRC at 381; Tr. 95, 96, 142. 

The judge recounted all of the above in the context of reviewing 

Tennessee Chemical's "abundant operaiting experience" indicating the need 

for ground support before the fatality. Reading the judge's decision as 

a whole it is evident that, while the judge considered the Ledford 

fatality as part of Tennessee Chemical's operating experience, he did not 

predicate his decision upon that event and, in fact, relied in large 

measure upon this other experience, which Tennessee Chemical does not 

contend was improperly considered as part of its operating experience. 

We next address Tennessee Chemical's challenge to the judge's finding of gross negligence. After finding that Tennessee Chemical violated 

section 57.3-20 by failing to provide support at the place where the rock 

fell on Dillard and Waters, the judge determined that: 

In light of the abundant operating experience 

showing the need for roof support in this area 

before the fatality, I find that Respondent's 

failure to provide roof support to protect 

Dillard and Waters from a potential roof fall 

constituted gross negligence. 

10 FMSHRC at 387-88. 

789 
Thus, the judge's legal determination of gross negligence was tied 

to his factual findings of abundant operating experience showing the 

need for ground support in the 14 N 33 drift. In terms of whether there 

is substantial evidence for the judge's determination of gross negligence, 

we find support for this finding in the record beginning with the mine 

operator's experience in connection with the Ledford incident, and 

including the events and history of the conditions in the 14 N 33 tunnel 

in the days immediately preceding the Dillard fatality. 

The judge also found that Tennessee Chemical's "layered system" 

involving three levels of responsibility (miners, front line supervisors, 

and upper management) for monitoring and controlling the ground failed 

at each level. 10 FMSHRC 382. These failures played an important part 

in the judge's determination that gross negligence was involved. In this 

regard the judge pointed to several failures of communication between 

Wright, Dillard and Waters regarding the areas that were scaled and those 

that needed to be scaled. 10 FMSHRC 383. The judge also related the 

failures at the front line supervisor level, focusing upon the failure 

of Morrow, the development foreman, to carry out his duties under 

30 C.F.R. § 57.3-22, which requires supervisors to examine the ground 

conditions during daily visits. The judge found that Morrow had not 

visited the area on that shift before or after the warning and that 

he failed to take any action even after overhearing Wright warn Dillard 

of the hazardous ground conditions. The judge also found that Morrow 

knew that Dillard and Waters would be returning to the area that Wright 

had warned about and that they would be drilling into the face while 

working in an unbolted area. 10 FMSHRC at 384. Additionally, the judge 

accepted the general mine foreman's statement that the development crew 

had reported the adverse conditions to Morrow. · Tenness.ee Chemical does 

not take issue with these findings. 

The judge further determined that there was a second failure on the 

part of front line supervisors. Based on the testimony of rock bolter, 

M. Richards, the judge found that L. Hicks, supervisor of stoping and 

rock bolting, was informed by Richards on September 13th of the adverse 

ground conditions yet, like Morrow, he took no action to inspect or 

provide support for the area where Dillard and Waters would be drilling. 

In fact, Hicks criticized Richard for installing extra bolts. 10 FMSHRC 

at 385. 

At the upper management level the judge noted general mine foreman 

G. Williams' awareness of the adverse conditions in the part of the drift 

where Dillard would be working and his ordering of bolting around the bore 

hole, but his failure to order bolting for the area where Dillard would be 

working. 10 FMSHRC at 386. Finally, the judge noted that, while Dr. Hammet 

had stated in his July 1984 report that systematic bolting was not yet 

needed, he warned that such bolting might ultimately be necessary and that 

d~cisions on the areas to be supported would depend primarily on local 

geological conditions. 

We view the above as constituting substantial evidence in support of 

the judge's finding as to the degree of negligence involved. 4/ 

4/ Geological differences between underground coal mines and underground 

metal/nonmetal mines generally result in requiring systematic roof bolting 

(Footnote continued) 

790 
There is, however, Tennessee Chemical's argument that the judge did 

not consider· the opinions of the MSHA inspectors who considered the 

negligence to be moderate. MSHA supervisor Turner explained that he retreated from his initial opinion that high negligence was involved to his 

subsequent view that the negligence was moderate because he believed that 

there were mitigating circumstances. 5/ Tr. 18, 97. Turner felt the 

negligence was moderate because of Tennessee Chemical's efforts following 

the Ledford fatality, including their hiring of consultants and the training 

and retraining of their employees in ground control. Tr. 38, 39, 41, 42, 

89, 100. 

While the judge did not specifically discuss MSHA's change in opinion 

as to the level of negligence involved, after a citation is contested 

before the Commission, it is the judge's responsibility to determine the 

extent of negligence de novo based on the evidence in the record before him. 

Sellersburg Stone Co.-,-5 FMSHRC 934, 36 (March 1983), aff'd, 736 F.2d 1147 

(7th Cir. 1984). "When a judge's penalty assessment is put in issue on 

review, we must determine whether it is supported by substantial evidence 

and whether it is consistent with the statutory penalty criteria." 

Missouri Rock, Inc., 11 FMSHRC 136, 141 (February 1989). As we have set 

forth, we find substantial evidence of record supporting the judge's finding. 

Tennessee Chemical also asserts that there is no factual support for 

the judge's finding that there was a failure to supply needed ground support, 

unless it is held to a standard of being an insurer of events in the mine. 

It is Tennessee Chemical's position that it had done all it could under 

the smooth wall method by bolting as far forward in the drift as possible. 

It notes that smooth walling is an accepted way to mine and that MSHA 

knew that it was utilizing that method. 

We need not consider the merits or demerits of smooth walling 

generally or as practiced by Tennessee Chemical. The fact that the 

smooth wall method may be a recognized method of ground support is not 

at issue. The issue is simply whether, while utilizing the smooth wall 

method, Tennessee Chemical maintained ground support that their operating 

experience indicated was needed at the cited location. Although Tennessee 

Chemical may have bolted as far forward as normally called for under the 

smooth wall method, it is clear that, in the circumstances presented, further bolting was called for and could have been achieved. See Tr. 44, 45. 

Fn. 4/ continued: 

in the former and rock bolting as necessary in the latter. Applying that 

tenet here, the issue is not whether systematic bolting to the face should 

have been instituted prior to the Dillard fatality, but whether bolting 

should have been provided in the area where Dillard and Waters were working. 

As to that issue, substantial evidence in the record establishes that the 

area should have been bolted and that failure to do so'was grossly negligent. 

5/ Turner's original basis for determining that high negligence was 

Involved stemmed from directions by his superiors within MSHA who were 

influenced by the fact that there had been seven fatalities in mines 

inspected by Turner's MSHA field office. Tr. 88. 

791 
In sum, there is substantial evidentiary support in the record for 

the judge's finding that Tennessee Chemical should have recognized that 

there were serious ground support problems in the 14 N 33 drift, preceding 

the Dillard fatality. Accordingly, there is substantial support for the 

judge's rejection of Tennessee Chemical's argument that the fall of 

ground that killed Dillard was a surprise. Further, there is substantial 

support for the judge's finding regarding the penalty criteria in his 

assessment of a $7,500 penalty. 

For the foregoing reasons, the judge's decision is affirmed. 

Richard V. er 

·.~~/LA- ti. ~{e__, J.lyce A. Doyle, CommiSSiO!l 

Distribution 

Ronald G. Ingham, Esq. 

Miller & Martin 

1000 Volunteer Building 

Chattanooga, Tennessee 37402 

Linda Leasure, Esq. 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

L. Clair Nelson,.Commissioner 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

792 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 8, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PENNSYLVANIA ELECTRIC COMPANY 

Docket Nos. PENN 88-227 

ORDER 

In this civil penalty proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982)("Mine Act" 

or "Act"), the Secretary of Labor has issued two citations to 

Pennsylvania Electric Company ("Penelec") alleging violations of 

30 C.F.R. § 77.400(c) for failure to guard adequately the head drives of 

two conveyors at Penelec's Homer City Steam Electric Generating Station. 

Before Commission Administrative Law Judge Gary Melick, Penelec 

challenged whether the head dri~e equipment came within the jurisdiction 

of the Mine Act. The judge concluded that the Department of Labor's 

Mine Safety and Health Administration ("MSHA") had jurisdiction to 

inspect the head drives, found that the violations had occurred, and 

assessed Penelec civil penalties of $54 for each violation. 10 FMSHRC 

1780 (December 1988)(ALJ). The Commission granted Penelec's Petition 

for Discretionary Review. Penelec has subsequently filed an Application 

for Temporary Relief requesting, in effect, that the Commission enjoin 

MSHA from enforcement activities at the electrical generating station 

pending a decision in this case. Penelec has also filed a Motion for 

Expedited Hearing and Oral Argument. The Secretary has filed responses 

to Penelec's motions. On the following bases, the Application for 

Temporary Relief is denied and the Motion for Expedited Hearing and Oral 

Argument is granted. 

Section 105(b)(2) of the Mine Act, 30 U.S.C. § 815(b)(2), defines 

the conditions under which temporary relief may be granted under the 

Mine Act. Commission Procedural Rules 45 and 46, 29 C.F.R. §§ 2700.45 & 

.46, merely implement this statutory provision. Section 105(b)(2) of 

the Act provides for temporary relief from "any modification or 

termination of any order or from any order issued under section [104]" 

of the Act, and specifically states that "[n]o temporary relief shall be 

granted in the case of a citation issued under subsection (a) •.• of 

section [104]" of the Act. There are no orders of withdrawal involved 

in the present proceeding. Rather, the two citations in question were 

793 
issued under· section 104(a) of the Act. Thus, by the express terms of 

the Act, temporary relief may not be granted in this case. 

Penelec also asserts that MSHA had agreed that, during the 

pendency of this civil penalty proceeding, it would restrict inspections 

of the generating station to previously inspected areas. Penelec 

further asserts that on March 27-30, 1989, MSHA violated that agreement 

by issuing 23 additional citations involving training requirements and 

equipment specifications at the station. Issuance of these additional 

citations has no bearing upon whether temporary relief may be granted in 

this case. Section 105(b)(2) of the Act and Commission Procedural Rules 

45 and 46 contemplate that, prior to any grant of temporary relief, a 

proceeding be instituted before the Commission and a hearing held. The 

23 additional citations are not the subject of the present proceeding 

and there is no indication in the record that Penelec has challenged 

them under the Act or that a hearing concerning these other citations 

has been held. Moreover, as already noted, temporary relief is not 

available for citations issued pursuant to section 104 of the Mine Act. 

Accordingly, Penelec's application for temporary relief is denied. 

Upon consideration of Penelec's Motion for Expedited Hearing and 

Oral Argument and the Secretary's responses thereto, the motion is 

granted. An order setting the date and terms of oral argument will be 

issued at an appropriate time. 

Backley, Commissione'r-· · 

~ti.~ oyceA:DOYle, CommTsSiOer 

• Clair Nelson, Commissioner 

794 
Distribution 

John P. Proctor, Esq. 

Bishop, Cook, Purcell & Reynolds 

1400 L Street, N.W. · 

Washington, D.C. 20005 

Carl C. Charneski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

795 
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), 

v. 

A. H. SMITH STONE COMPANY 

May 8, 1989 

Docket No. VA 88-44-H 

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

Conunissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). On February 22, 

1989, Conunission Chief Administrative Law Judge Paul Merlin issued an 

Order of Default finding respondent A. H. Smith Stone Company ("Smi~h 

Stone") in default for failure to answer the Secretary of Labor's civil 

penalty complaint and the judge's two subsequent orders to show cause. 

The judge assessed a civil penalty of $362 proposed by the Secretary for 

four violations of mandatory safety standards. By letter dated April 

10, 1989, addressed to Judge Merlin, A. H. Smith Associates Limited 

Partnership ("Smith Associates"), on behalf of Smith Stone, requested 

that the order of default be removed from the proceeding and that the 

operator be allowed to contest the alleged violations. On May 1, 1989, 

the Secretary filed an opposition to the request. We deem the April 10 

letter to constitute a request for relief from a final Conunission order 

incorporating a late-filed petition for discretionary review, and, for 

the reasons set forth below, we grant review, vacate the judge's default 

order and remand for further proceedings. 

On January 5 and 6, 1988, an inspector of the Department of 

Labor's Mine Safety and Health Administration ("MSHA") issued to Smith 

796 
Stone four citations pursuant to section 104(a) of the Mine Act, 30 

U.S.C. § 814(a). On March 29, 1988, MSHA's Office of Assessments 

notified Smith Stone that it proposed a total civil penalty of $362 for 

the alleged violations. On May 4, 1988, Smith Stone filed its "Blue 

Card" request for a hearing before this independent Commission. On 

June 9, 1988, the Secretary filed a complaint proposing the assessment 

of civil penalties for the violations. The record reflects that Smith 

Stone did not file an answer to the complaint, which was served by first 

class mail on it at its Mitchell, Virginia, address. 

On August 15, 1988, Judge Merlin issued a show cause order 

directing Smith Stone to answer the complaint within 30 days or be found 

in default. The order was sent via certified mail, return receipt 

requested, to Joseph McElf ish, A. H. Smith Stone Company at the 

Mitchell, Virginia, address. The record reflects that the certified 

mail return receipt for the order was signed on August 22, 1988, by one 

Clyde Wayland as agent for Smith Stone. No response to the order 

appears in the official file. 

On November 8, 1988, the judge's law clerk noted, via-a memorandum 

to the file, that Mr. McElfish was no longer employed by Smith Stone and 

that service should be directed to a Ms. Pridgen at Smith Associates' 

corporate headquarters in Branchville, Maryland. On December 8, 1988, 

Judge Merlin issued a second order to show cause, directing Smith Stone 

to answer the complaint within 30 days, _indicating that since "it has 

subsequently been learned that Mr. McElfish is no longer employed by the 

operator and .•• the proper company officials may not have received the 

order .... the second show cause.order is being issued [to Ms. Pridgen 

at the corporate headquarters of A. H. Smith Associates in Branchville, 

Maryland]." The certified mail return receipt for the second order was 

signed by one R. Bailey. 

On February 22, 1989, Judge Merlin issued an Order of Default 

stating, inter alia, that the respondent had "failed to comply •.. [with 

the second order to show cause]." The judge accordingly assessed the 

total civil penalty amount of $362. 

By letter dated April 10, 1989, which encloses an answer to the 

complaint, Smith Associates' Director of Safety/Government Affairs 

essentially requested that the order of default be vacated and its right 

to contest the citations reinstated. The submission asserts that the 

delay in responding is attributable to the fact that the Secretary's 

complaint, the orders to show cause and the order of default were 

directed to persons no longer employed by Smith Associates. 

On May 1, 1989, the Secretary opposed the request on the grounds 

that the respondent's proffered excuses for its nonresponse to 

Commission orders are not persuasive. 

The judge's jurisdiction in this matter terminated when his 

default order was issued on February 22, 1989. 29 C.F.R. § 2700.65(c). 

Because the judge's decision has become final by operation of law, we 

can consider the merits of A. H. Smith Associates' request only if we 

construe it a~ a request for relief from a final Commission decision 

797 
' 

incorporating a late-filed petition for discretionary review. See, 

~' Amber Coal Company, 11 FMSHRC 131, 132 (February 1989); Kelley 

Trucking Co., 8 FMSHRC 1867 (December 1986); M.M. Sundt Construction 

Co., 8 FMSHRC 1269 (September 1986). 

Smith Associates, proceeding without benefit of counsel, has 

raised what may be a colorable excuse for its nonresponse to the judge's 

orders. See, ~' Columbia Portland Cement Co., 8 FMSHRC 1644 

(November 1986)(nonresponse attributable to mistake or neglect of a 

former employee); Mohave Concrete and Materials, Inc., 8 FMSHRC 1646 

(November 1986)(failure to respond attributable to mistake or neglect of 

a former bookkeeper); see also, Ten-A Coal Co., 10 FMSHRC 1332 

(September 1988); Perry Drilling Co., 9 FMSHRC 370 (March 1987). The 

Commission has previously afforded such a party relief from final orders 

of the Commission where it appears that the party's failure to respond 

to a judge's order and the party's subsequent default are due to 

inadvertence, mistake, or excusable neglect. Amber, supra; Kelley, 

supra; Sundt, supra. Under these circumstances, we will accept Smith 

Associates' letter as a request for relief from a final Commission order 

incorporating by implication a petition for discretionary review. We 

accordingly grant the petition. 

We have observed repeatedly that default is a harsh remedy and 

that if the defaulting party can make a showing of adequate or good 

cause for the failure to respond, the failure may be excused and 

appropriate proceedings on the merits permitted. Sundt, 8 FMSHRC at 

1271; Kelley, 8 FMSHRC at 1869. The Commission has recently noted that 

"under appropriate circumstances a genuine problem in communication or 

with the mail may justify relief from default." Ten-A Coal Company, 10 

FMSHRC 1132, 1133 (September 1988), quoting Middle States Resources, 

Inc., 10 FMSHRC 1130 (September 1988); Con-Ag, Inc., 9 FMSHRC 989, 990 

(June 1987)(emphasis supplied). Since we are unable, on the basis of 

the present record, to evaluate the merits of the respondent's 

assertions, we will permit the parties to present their positions to the 

judge, who will determine whether sufficient grounds exist for excusing 

the failure to timely respond. Perry Drilling Co., 9 FMSHRC 377, 380 

(March 1987), citing Kelley, supra, 8 FMSHRC at 1869. 

798 
Accordingly, the judge's default order is vacated and this matter 

is remanded for proceedings consistent with this order. Respondent is 

reminded to serve the Secretary of Labor with copies of all its 

correspondence and other filings in this matter. 29 C.F.R. § 2700.7. 

Distribution 

Lisa M. Wolf 

Director Safety 

A.H. Smith 

9101 Railroad Avenue 

Branchville, Maryland 20740 

Jack E. Strausman, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

~ ~~£~~~ Richard V. Backley, Commissioner 

a t1.~0_ foY~le, CoIDffiiSSi er 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

799 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

GREEN RIVER COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. ·20006 . 

May 10, 1989 

Docket No. KENT 88-152 

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

ORDER 

BY THE COMMISSION: 

By a petition for discretionary review filed May 1, 1989, and 

supplemented on May 5, 1989, the Secretary seeks review of a decision 

issued by Commission Administrative Law Judge George A. Koutras on 

April 24, 1989. The basis for the Secretary's petition is that a 

prejudicial error of procedure was committed when the judge issued 

his decision prior to May 3, 1989, the date set by the judge for the 

filing of post-hearing briefs, and before any such briefs had been 

received. The petition requests that the case be summarily remanded 

to the judge for reconsideration of his decision in light of any 

timely-filed post-hearing briefs of the parties. Concurrently with 

the filing of her petition for review, the Secretary also filed with 

the judge a motion for reconsideration of his decision pursuant to 

Commission Procedural Rule 65(c), 29 C.F.R. § 2700.65(c) providing in 

part for the correction of "clerical mistakes and errors arising from 

oversight or omission in decisions, orders or other parts of the record" 

after a judge's decision has been issued. 

On May 8, 1989, Green River Coal Company filed a response to the 

Secretary's petition requesting that it be denied on three grounds: that 

no prejudice to the Secretary occurred since the judge issued his decision without considering the brief of either party; that the petition was 

premature insofar as the judge had not yet ruled on the Secretary's motion 

for reconsideration; and that a petition for review based on a technical 

800 
error should also indicate that the petitioner can also prevail on the 

merits. Meanwhile, by an order issued May 4, 1989, the judge denied the 

Secretary's motion for reconsideration citing among other authority the 

Commission's decision in Capitol Aggregates, Inc., 2 FMSHRC 1040 

(May 1980) • ~/ 

Having considered the arguments of the parties and the judge's 

order denying the Secretary's motion for reconsideration, we find that 

Capitol Aggregates, Inc., is dispositive of this matter. We therefore 

grant the Secretary's petition for review, vacate the judge's decision 

of April 24, 1989, and remand the case to the judge for further consideration of his decision in light of the post-hearing briefs filed by the 

parties. 

g~~" Richard V. Backley, Commissioner 

Joyce 

e~tl,~ A. Doyle, Com1DlSSiOr 

!ames A. Lasto~, Commissioner 

'JL,,ll~ L. Clair Nelson, Commissioner 

*f In Capitol Aggregates, the Commission held that a judge has no 

authority to stay the effective date of his already issued decision 

pending the filing of post-hearing briefs by the parties, and remanded 

that case to the judge for reconsideration of his decision in light of 

the post-hearing briefs. 2 FMSHRC at 1041-42. 

801 
Distribution 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U:S. Department of Laoor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Joseph B. Luckett, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

2002 Richard Jones Rd., Suite B-201 

Nashville, Tennessee 37215 

B.R. Paxton, Esq. 

Paxton & Kusch 

213 E. Broad St. 

P.O. B.ox Q55 

Central City, Kentucky 42330 

Administrative Law Judge George Koutras 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

802 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION. (MSHA) 

v. 

L & L GRAVEL 

1730 K STREET NW, 6TH FLOOR. 

WASHINGTON, D.C. 20006 

May 30, 1989 

Docket No. CENT 89-2-M 

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

Conunissioners 

DIRECTION FOR REVIEW AND ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982). On April 20, 

1989, Conunission Chief Administrative Law Judge Paul Merlin issued an 

Order of Default finding respondent L & L Gravel ("L&L") in default for 

failing to answer the Secretary of Labor's Proposal for Penalty and the 

judge's Order to Show Cause. On May 22, 1989, the Secretary filed with 

the Conunission a Motion to Correct Order of Default seeking reduction of 

the penalty amount by $20, on the basis that one of the underlying 

citations for which penalties had been proposed had been vacated. For 

the reasons set forth below, we deem this motion to constitute a 

Petition for Discretionary Review, which we grant, and we vacate the 

judge's default order and remand for further proceeding. 

The Secretary asserts that one of the underlying citations, based 

on an alleged violation of 30 C.F.R. § 56.14010 (safety devices on handheld power tools), was vacated on October 14, 1988, and that the penalty 

of $20 assessed in connection with that citation snould also be vacated. 

The judge's jurisdiction in this matter terminated when his 

default order was issued on April 20, 1989. 29 C.F.R. § 2700.65(c). 

Under the Mine Act and the Conunission's procedural rules, once a judge's 

decision has issued, relief from the decision may be sought by filing 

with the Conunission a petition for discretionary review within 30 days 

of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70. Here the 

Secretary's motion is a request for revision of, and a form of relief 

803 
from, the judge' decision and we will treat it as a petition for 

discretionary review. See, ~· Secretary on behalf of DeLisio v. 

Mathies Coal Co., 9 FMSHRC 193, 194 (February 1987). 

The Secretary's motion, in effect, questions the factual basis 

upon which the judge's decision penalty assessment rests. Under the 

circumstances, we deem it appropriate to remand this matter to the 

judge, who shall take appropriate action with respect to the Secretary's 

request for correction of his original decision. Cf. Camp Fork Fuel 

Co., 11 FMSHRC 496, 497-98 (April 1989). 

Accordingly, the judge's default order is vacated and this matter 

is remanded for proceedings consistent with this order. 

Distribution 

Stephen G. Reynolds, Esq. 

Office of the Solicitor 

U. S. Department of Labor 

911 Walnut Street 

Kansas City, Missouri 64106 

Lewis L. Herbough 

L & L Gravel 

Box 585 

Valentine, Nebraska 69201 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

804 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 1, 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WARREN E. MANTER COMP ANY, 

INC., 

Respondent 

. . 

. . 

. . 

. . 

DECISION 

Docket No. YORK 88-43-M 

A. C. No. 19-00798-05503 

Richardson Pit Mine 

Appearances: David L. Baskin, Esq., Office of the Solicitor 

Before: 

u. s. Department of Labor, Boston, Massachusetts, 

for Petitioner. 

warren E. Manter, Pro Se, for the Respondent. 

Judge Merlin 

This case is a petition for the assessment of civil penalties for four alleged violations filed by the Secretary of Labor 

against Warren E. Manter Company, Inc., under section 110 of the 

Federal Mine Sa·fety and Health Act of 1977, 30 u. S. c. § 820. 

An evidentiary hearing was held on March 24, 1989, and the 

parties have waived the filing of post-hearing briefs. 

When a violation is established, section llOCi) of the Act, 

30 U. S. C. § 820(i), directs that in assessing the amount of 

civil penalty, the Commission shall consider the operator's history of previous violations, the appropriateness of such penalty 

to the size of the operator's business, 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 operator in attempting to achieve rapid compliance 

after notification of a violation. 

Gravi'ty and negligence will be considered individually with 

respect to each citation. Based upon the record, I make the following findings for the remaining criteria as applicable to all 

the citations. The alleged violations were rapidly abated in 

good faith. In absence of any evidence to the contrary, I conclude that the imposition of civil penalties herein will not 

affect the operator's ability to continue in business. Also in 

the absence of any evidence to the contrary from the Solicitor, 

the operator prior history is held noncontributory. The 

operator's size is small (Tr. 87). 

805 
Citation No. 2853589 sets forth the subject condition as 

follows: 

"The fire extinguisher in the generator 

trailer had been discharged and not replaced with 

a fully charged and sealed extinguisher. There 

is oil and other flammable material in the 

trailer." 

The citation charges a violation of 30 C.F.R. § 56.4203 

which provides: 

"Fire extinguishers shall be recharged 

or replaced with a fully charged extinguisher 

promptly after any discharge." 

A conflict exists in the testimony regarding this citation. 

The inspector testified that the seal on the extinguisher had 

been broken (Tr. 15). He said an employee of the operator told 

him the e)Ctinguisher had been used previously in a fire (Tr. 16). 

The inspector admitted he did not look at the extinguisher's 

gauge CTr. 26). The operator testified that although the seal 

was broken, the gauge showed the extinguisher was full and that 

the extinguisher had in fact not been used and was charged 

(Tr. 29, 99). I find that the operator was a credible witness 

and that his first-hand testimony is persuasive. As appears hereinafter, where a violation did exist, the operator freely admitted it. The employee upon whom the inspector relied with respect 

to the supposed prior use of the extinguisher, was described by 

the operator as disgruntled and that description is uncontradicted. The hearsay statements attributed to this employee are 

not as convincing as the operator's live testimony. Accordingly, 

I find the extinguisher was not discharged and I conclude that no 

violation existed. Therefore, this citation is vacated and no 

penalty is assessed. 

Citation No. 2853590 sets forth the subject condition as 

follows: 

"The walkway and floor in the trailer 

for the generator is covered with oil [sic] 

it is a slipping and fire hazard. This area 

is used as a walkway to gain access to some 

areas of the plant. · 

The citation charges a violation of 30 C.F.R. § 56.20003(a) 

which provides that at all mining operations: 

"Ca> Workplaces, passageways, storerooms, and service rooms shall be kept clean 

and orderly." 

806 
The inspector testified that the walkways were covered with 

dust and oil CTr. 31). The operator admitted the trailer was 

messy CTr. 101). On this basis I conclude a violation existed. 

I also find the operator was negligent, relying upon the inspector's estimate that the condition occurred over a period of time 

CTr. 33). The violation was however, of only modest gravity. 

The inspector testified that the oil was a mixture of diesel and 

motor oil and that most of it was motor oil which is not as flammable as diesel . C Tr. 36) • In addition, the inspector stated that 

except for oil under the generator, stone dust covered the oil 

and made it less flammable CTr. 36-37). The operator asserted 

that stone dust covered the oil everywhere, rendering all of it 

less flammable CTr. 101). To the extent that there is a conflict 

in the descriptions, I find that of the operator more persuasive. 

I also accept the operator's testimony that the cited area was 

not the main access to the plant CTr. 101, 102). Finally, although the generator was on, the plant was not operating. The 

foregoing circumstances indicate only moderate gravity and show 

as well that there was no reasonable likelihood of injury. Therefore, the significant and substantial designation on the citation 

was improper. Cement Division, National Gypsum Co., 3 FMSHRC 

822, 825 Cl981), Mathies Coal Co, 6 FMSHRC 1, 3-4 (1984). The 

penalty was originally assessed at $276, but in view of the circumstances set forth herein regarding gravity and the other 

statutory criteria, I determine a penalty of $75 is appropriate. 

Citation No. 2853591 sets forth the subject condition as 

follows: 

"The electrical junction box on the 

scalping screen is broken loose and hanging 

on live wires. Everyone on the plant is 

exposed to potential electrical shock •. ~· 

The citation charges a violation of 30 C.F.R. § 56.12032 

which provides: 

"Inspection and cover plates on electrical equipment and junction boxes shall be 

kept in place at all times except during testing or repairs." 

The inspector's testimony that the junction box was disengaged from the plant struc.ture and was hanging supported by 

wires that supply electricity to the plant is uncontradicted 

(Tr. 50). On this basis I find a violation existed. The inspector did not know exactly how long the condition had existed, but 

he estimated it would have been more than a day, something in the 

nature of days (Tr. 64, 72). The condition was visibly obvious 

(Tr. 64). The operator could not state when the condition 

occurred, but I accept his testimony that the rust the inspector 

saw was not on the screws which had been holding the box before 

they broke off and that therefore, the rust is not an indication 

807 
of the duration of the violation (Tr. 77). Clearly, the operator 

should have found and corrected this condition and accordingly 

must be found negligent. With respect to gravity, I accept the 

operator's statement that the voltage was 220 and that if fuses 

failed to work, the plant structure could become energized, 

creating a shock hazard (Tr. 79). However, gravity is greatly 

mitigated, because the plant was not operating. The inspector 

also mentioned the possibility of a shock hazard if wires were 

chafed through, but he did not see any evidence of insulation 

wearing away because he did not look. Based upon the foregoing, 

I conclude the violation was of only moderate gravity. Because 

the plant was not operating, there was no reasonable likelihood 

of injury and therefore, the significant and substantial designation on the citation was improper. The penalty was originally 

assessed at $413, but in view of the circumstances set forth 

herein regarding gravity and the other statutory criteria, I 

determine that a penalty of $100 is appropriate. 

Citation No. 2853592 sets forth the subject condition as 

follows: 

"The guards had been removed from the 

self-cleaning tail pulley of the small 

conveyor and not replaced after repairs." 

The citation charges a violation of 30 C.F.R. § 56.14006 

which provides: 

"Except when testing the machinery, 

guards shall be securely in place while 

machinery is being operated. 11 

The inspector testified that the location o~ the missing 

guard was at the tail pulley of the stacking conveyor (Tr. 88-89). 

The operator admitted the guard was broken off because he had 

seen it himself the day before (Tr. 96). On this basis I find a 

violation existed. The operator was negligent because the 

missing guard should have been replaced. With respect to 

gravity, I accept the operator's testimony that the tail pulley 

did not extend beyond the belt (Tr. 96-97). Nevertheless, as the 

operator admitted and as the inspector testified, there was a 

danger that an individual's arm or clothing could become caught 

(Tr. 88-89, 97). However, the inspector testified that only the 

individual performing maintenance tasks would be subject to such 

a danger. Finally, any risk of harm was greatly reduced because 

the plant was not operating. The foregoing circumstances 

indicate only moderate gravity. Because the plant was not 

operating, there was no reasonable likelihood of injury and 

therefore, the significant and substantial designation on the 

citation was improper. The penalty was originally assessed at 

$168, but in view of the circumstances set forth herein regarding 

gravity and the other statutory criteria, I determine that a 

penalty of $75 is appropriate. 

808 
ORDER 

Accordingly, it is ORDERED that Citation No. 2853589 be 

VACATED, and that Citation Nos. 2853590, 2853591 and 2853592 be 

AFFIRMED. 

It is further ORDERED that the designation of significant 

and substantial.in Citation Nos. 2853590, 2853591, and 2853592 be 

DELETED. 

It is further ORDERED that the following civil penalties are 

assessed. 

Citation No. 

2853590 

2853591 

2853592 

Penalty 

$75 

$100 

$75 

It is ORDERED that the operator pay $250 within 30 days from 

the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

David L. Baskin, Esq., Office of the Solicitor, u. s. Department 

of Labor, John F. Kennedy Federal Building, Government Center, 

Boston, MA 02203 (Certified Mail) 

Mr. Warren E. Manter, Warren E. Manter Company, Inc., 20 Popes 

Lane, Danvers, MA 01923 (Certified Mail) 

/gl 

809 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 3 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 88-204 

: A.C. No. 46-06846-03517 

v. 

Oneida Mine No. 12 

ONEIDA COAL COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

James H. Swain, Susan M. Jordan, Esqs., Office 

of the Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the Petitioner; 

w. T. Weber, Jr., Esq., Weston, West Virginia, 

for the Respondent. 

Judge Koutras 

Statement of the Proceeding 

This proceeding concerns civil penalty proposals filed by 

the petitioner against the respondent pursuant to section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 820(a), seeking civil penalty assessments for two 

alleged violations of the mandatory accident reporting requirements found in Part SO, Title 30, Code of Federal Regulations. 

The respondent filed a timely answer contesting the proposed 

civil penalties, and a hearing was held in Charleston, 

West Virginia. The parties filed posthearing arguments, which 

I have considered in the course of my adjudication of this 

matter. 

Issues 

The issues presented in this case are Cl) whether the 

conditions or practices cited by the inspector constitute violations of the cited mandatory standards, and (2) the appropriate civil penalties to be assessed for the violations, taking 

into account the statutory civil penalty assessment criteria 

found in section llO(i) of the Act. 

810 
The crucial issue in this case is whether or not a 

purported "accident" which prompted the issuance of the violations, was in fact a reportable accident within the definition 

of the term "accident" found in 30 C.F.R. § 50.2Ch){2). 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-154, 30 U.S.C. § 801 et seq. 

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

3. Mandatory accident reporting standards 30 C.F.R. 

§ 50.10 and 50.12. 

4. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated to the admission of certain 

documents, and also stipulated to the following (Tr. 5-6). 

1. The respondent and its controlling 

company are subject to the Act, and the 

presiding judge has jurisdiction to hear and 

decide this matter. 

2. The inspector who issued the contested 

citations was acting in his capacity as a duly 

authorized representative of the Secretary of 

Labor. 

3. A true and correct copy of each of the 

citations was properly served on the respondent's representative. 

4. Imposition of civil penalties for the 

alleged violations will not adversely affect 

the respondent's ability to continue in 

business. 

5. The respondent's history of prior 

violations is reflected in an ~I.SHA computer 

print-out, exhibit P-7, and it is correct. 

6. The respondent is a medium-size coal 

inine ope~ator who produced 1.4 million tons of 

811 
coal in 1987, and its Mine No. 12 produced 

477,466 tons of coal for that same year. 

7. The injured miner in question, James 

Mullens, was a miner employed by the respondent 

on Dec~nber 7, 1987. 

Discussion 

The undisputed facts in this case establish that on 

Monday, December 7, 1987, continuous-mining machine operator 

James Mullens, who was working on the afternoon shift on the 

L-2 Section of the underground mine in question sustained 

injuries at approximately 8:30 p.m. to 9:00 p.m., when he was 

pinned against a coal rib by the machine cable restraining 

clamp. Mr. Mullens was the operator of the remote controlled 

machine, and after receiving first-aid underground, he was 

removed from the mine and taken to the Braxton CouI}ty, 

West Virginia Hospital by ambulance where he was treated in 

the einergency room. He was then transported to the 

West Virginia University Medical Center in Morgantown, 

West Virginia, by helicopter. Following an accident investigation by MSHA, Inspector Richard Herndon served the respondent 

with two citations, and they are as follows: 

section 104(a) Non-"S&S" Citation No. 2944551, issued on 

December 9, 1987, cites an alleged violation of mandatory 

accident reporting standard 30 C.F.R. § 50.10, and it states 

as follows: 

The operator failed to notify MSHA 

immediately at the occurrence of a serious 

accident to James Mullens at approximately 

9:00 p.m. 12-7-87. MSHA was not made aware of 

the accident until 4:30 p.m. 12-8-87. 

Section 104Ca) Non-"S&S" Citation No. 2944552, issued on 

December 9, 1987, cites an alleged violation· of 30 C.F.R. 

§ 50.12 1 and it states as follows: 

The operator was not granted permission by 

MSHA to continue operation or altar the accident site or related area on the L-2 section 

where a serious accident occurred 12-7-87. Due 

to the continuing of the mining cycle the scene 

of the accident and subsequent maintenance of 

the Joy 14CH the scene of the accident was 

altered. 

812 
Testimony and Evidence Adduced by the Petitioner 

Dr. Jose Bordonada, testified as to his education and 

experience, and he confirmed that he practices medicine at the 

Braxton County Memorial Hospital in Gassaway, Braxton County, 

west Virginia. He also confirmed that his experience includes 

18 years of practice in general surgery, a fellowship in 

abdominal surgery, and that he has extensive experience in 

treating traumatic injury patients in emergency situations, 

including emergency room treatment for vehicular chest and 

abdominal injuries. Dr. Bordonad.a was qualified and admitted 

as an expert medical witness {Tr. 18-22). 

Dr. Bordonada confirmed that he was the hospital 

emergency room attending physician on December 7, 1987, and he 

treated the respondent's employee James Mullens on that day. 

Referring to a copy of the hospital emergency department 

outpatient record, (exhibit P-1), Dr. Bordonado explained the 

information appearing therein, as well as several notations 

which he made in the course of his examination and treatment 

of Mr. Mullens. 

Dr. Bordonada stated that according to his notations, 

Mr. Mullens was pinned against a rock and miner across his 

upper abdomen and lower chest, and that he was complaining of 

severe abdominal pain, tenderness, back pain, and numbness and 

weakness of his lower leg. He further explained that his examination of Mr. Mullens' head, eyes, ear, nose, and throat were 

all negative, but that his abdomen was rigid and tender which 

was a sign "of something going on, especially over the left 

upper quadrant" (Tr. 24). He also confirmed that Mr. Mullens' 

lumbar dorsa1 spine, or abdomen, chest, and pelvis were 

x-rayed, and that certain blood tests were taken. Mr. Mullens 

was given demoral for his pain, and phenergan and peritoneal 

lavage medications were also administered as part of his diagnostic procedures. His diagnosis indicated "intra-abdominal 

bleeding, ruptured spleen compression fractu.re L5, with left 

hemiparesis, and a renal contusion" (Tr. 27). 

With regard to page two of the hospital report, 

Dr. Bordonada confirmed that his notation reflects that he 

discussed Mr. Mullens' case with a Or. Monger, West Virginia 

University Hospital, and that Dr. Monger agreed to accept a 

transfer of Mr. Mullens to that facility by helicopter (Tr. 

28). Dr. Bordonada also explained the further treatluent he 

administered to Mr. Mullens after he arrived at the emergency 

room, and he believed that Mr. Mullens had suffered 

intra-abdominal injuries, with possible nerve injuries to his 

lower leg. He also explained the notations he made on page 

813 
four of the hospital report, and confirmed that from the 

results o:E the blood tests administered to Mr. Mullens, he 

concluded that Mr. Mullens showed signs of intra-abdominal 

bleeding, which is a serious condition, and usually indicativ9 

of a ruptured spleen. He indicated further that a ruptured 

spleen is not to be taken lightly, and that a patient could 

"go into shock in a matter of a few minutes." If a patient 

were to go irito shock, his blood supply to the brain and heart 

could be jeopardized, and the patient could develop a heart 

attack and die (Tr. 29-33). 

Dr. Bordonada stated that a urinalysis conducted on 

Mr. Mullens reflected 20 to 30 red blood cells in his urine, 

and this would indicate a contusion of the kidney (Tr. 33). 

He also confirmed that the last page of the report is the 

x-ray report and the interpretations made by the radiologist 

who made the report. ~!though the reports were essentially 

negative, Dr. Bordonada stated that he still suspected an LS 

fracture because such an injury is consistent with the 

patient's complaint of weakness and decreased sensation of the 

lower left extremity (Tr. 34). Or. Bordonada confinned that 

he immediately requested the assistance of a MediVac helicopter because of his "suspicion of the kind of injury that 

needs more work-up and treatment," and that this would be 

available to Mr. Mullens at another facility (Tr. 35). 

In response to a question with respect to the severity of 

Mr. Mullens' injuries, Dr. Bordonada responded as follows (Tr. 

355-36): 

Q. Doctor, do you have any opinion with 

respect to whether or not the injuries sustained by James Mullens on December 7, 1987, 

presented a reasonable potential to cause 

death? 

A.. Yes, sir. 

Q. What is that opinion? 

A.. I believe we are dealing here with a 

serious case of a case, and that is really 

threatening his life. 

JUOGF: Kou·rqAs. would you repeat that again? 

'I'he last. part. 

THE WITNESS: I believe this case, that his 

life is threatened. 

814 
BY MR. SWAIN: 

Q. Why did you think that his life was 

threatened? 

A. Because of the nature of the injury that he 

received. 

Q. In what respect were those injuries life 

threatening? 

A. On the record, it was even mentioned. This 

gentlemen was pinned with this miner in the 

lower chest, one would also suspect a contusion 

of the heart, and there's a big thing that they 

also observed in Morgantown but at that time, 

the real prominent situation is in the abdomen, 

and which like I mentioned, there are signs of 

intra-abdominal bleeding. This is the one I 

worried -- I've seen a lot of patients who go 

into shock just right there, and the patient 

exterminated right before your eyes. That 

happened to me many times. 

In response to a question as to whether or not the respondent or its safety director Edward Bauer asked him whether or 

not the injuries sustained by Mr. Mullens had a reasonable 

potential to cause his death, Dr. Bordonada replied "I don't 

think so" (Tr. 36). Dr. Bordonada also denied that Mr. Bauer 

ever mentioned that such an inquiry was related to any legal 

reporting requirement (Tr. 37). In the event he were asked 

for an opinion whether or not the injuries were life threatening, Dr. Bordonada stated that "my answer would be p6sitive" 

(Tr. 37). 

On cross-examination, Dr. Bordonada confirmed that he 

first saw Mr. Mullens at the hospital at 9:3b p.m., on the 

evening of December 7, 1987. He confirmed that Mr. Mullens 

was conscious, and that his blood pressure was within normal 

limits, his pulse rate was "abnormally high," and that his 

respiratory rate was "too high" (Tr. 40). Or. aordonada was 

of the opinion that the pulse rate is significant and indicative of the possibility of intra-abdominal bleeding, and 

alt~ough Mr. Mullens was bleedin-J £ro1n a lacerated f in-=Jer, he 

did not believe that this was related to the high pulse rate. 

Dr. Bordonada stated that he confirmed that Mr. Mullens had 

internal abdominal bleeding when he inserted a needle and 

815 
found bloody fluid. This "tap" was done at 10:45 p.m., according to the hospital report (Tr. 42). 

Dr. Bordonada confirmed that Mr. Mullens arrived at the 

hospital by ambulance, and that there "were some people" with 

him. He also confirmed that he knew Mr. Bauer and had "seen 

him around whenever there's a mine injury." He also knew that 

Mr. Bauer was "involved" with the respondent company, and that 

he was at the hospital asking questions (Tr. 44). When asked 

whether he made a statement to Mr. Bauer after 9:30 and before 

10:45 p.m., that he did not believe that Mr. Mullens' injuries 

were life threatening, Dr. Bordonada replied "I don't believe 

so." He also stated that "I don't recall any conversation of 

such nature," but "It's most possible, because I talk to so 

many people when you go out of the room" (Tr. 45). When asked 

whether he had a second conversation with Mr. Bauer at approximately 10:00 p.m., during which Mr. Bauec asked him whether or 

not the injuries sustained by Mr. Mullens had a reasonable 

potential for death, Dr. Bordonada replied "I ~ould say no, 

but it's possibl~ that I talked to him," and that it was 

possible that he had that conversation (Tr. 45). 

Dr. Bordonada confirmed that his great concern with 

respect to the life threatening aspects of the injuries sustained by Mr. Mullens was with respect to his belief that 

Mr. Mullens may have ruptured his spleen, and that this would 

have been some time after 10~45 p.m., after he had done the 

abdominal tap (Tr. 48). He agreed that his call for a helicopter evacuation was received by the hospital in Morgantown 

at 10:57 p.m., and that the h~licopter arrived at the Braxton 

Hospital at approximately 11:55 p.m., and left for Morgantown 

with Mr. Mullens at 12:30 a.m., l)ecember 8 (Tr. 49-50). 

Dr. Bordonada confirmed that Mr. Mullens did not in fact 

have a ruptured spleen or any fractured vertebrae, but that he 

did have a sprained leg, a cut finger, and a lumbar plexus 

contusion or bruise to the loose nerves that supply the leg. 

In his opinion, these injuries did not prese.nt a reasonable 

potential to cause death (Tr. 52-53). 

Robert Stump, section foreman, stated that he was the 

section forecran on December 7, 1987, when the incident concerning Mr. Mullens occurred. He confir~ed that he was summoned 

to the area by one of his buggy operators, and when he arrived 

he observed Mr. Mullens between the cable stand-off of the 

miner and the rib (Tr. 60). He described the "cable stand-off" 

as the metal compartment that holds the miner cable to the 

machine. Mr. Stu..'Tlp stated that when he first observed 

Mr. Mullens, he could not tell whether he was conscious. He 

816 
explained that Mr. Mullens was in a sitting position with the 

cable stand-off "pressing up against him," and Mr. Mullens' 

back was "to the coal rib." Mr. Stump confirmed that the 

miner pump motor was still running, and that he shut it off. 

He described the mining machine as approximately 30 feet long 

and that it weighed approximately 12 tons (Tr. 59-62). 

Mr. Stump stated that he sent the buggy operator to get 

help, and that he (Stump) supervised the placing of Mr. Mullens 

on a back board and taking him out of the mine. Mr. Stump confirmed that he supplied the information which appears on the 

respondent's accident report form, as well as the information 

from which the sketch attached thereto was made, and that he 

also discussed the incident with Mr. Harold Hayhurst, the 

individual who completed the report, but that Mr. Hayhurst was 

not present when Mr. Mullens was extricated from tl1e miner and 

taken out of the mine (Tr. 62-631 exhibit P-3). 

MSHA Inspector Richard Herndon stated that he is a special 

investigator, and he testified as to his experience and background, and confirmed that he and three other inspectors conducted an investigation at the mine on December 7, 1987, with 

respect to the incident concerning Mr. Mullens. He identified 

a copy of MSHA's accident report, and ~onfirmed that he issued 

the two contested citations in this case (Tr. 64-671 exhibit 

P-6). 

~eferring to the accident report, Mr. Herndon stated that 

at approximately 4:30 p.m., on Tuesday, December 8, 1987, the 

respondent's safety director Edward Bauer, notified MSHA's 

Clarksburg, West Virginia, field office, that a serious accident had occurred at the mine on the previous day on the afternoon shift sometime between 8:30 and 9:00 p.m., and that "a 

man was pinned between a continuous miner and the coal rib," 

and had been transported to the west Virginia University 

Medical Center. The MSHA supervisor to whom the accident was 

reported (James Satterfield) issued a verbal section 103{k) 

order over the telephone to Mr. Bauer, and the effect of that 

order was to "freeze the accident site" so that an investigation could be conducted (Tr. 67-68). Mr. Herndon confirmed 

that he was aware of the regulatory definition of an "accident" as found in section 50.2{h), and that as a result of the 

investigation, he determined that mine management had knowledge of the fact that there was an injury to a miner that had 

a reasonable potential to cause death prior to the time it was 

reported at 4:30 p.m., on December 8, 1987 (Tr. 72). 

Mr. Herndon further confirmed that he came to this ~onclusion 

in light of the fact that the miner was transferred from 

Braxton County to the University Medical Center, and that his 

817 
interviews with people at the mine suggested that Mr. Mullens 

had suffered internal injuries (Tr. 73). 

Mr. Herndon identified a copy of the respondent's accident 

report (exhibit P-3), and he confirmed that he did not see it 

or review it during his investigation. However, he confirmed 

that during the course of the investigation he spoke with 

Mr. Hayhurst, the individual who prepared the report, and 

Mr. Hayhurst showed him a drawing of the accident scene which 

is similar to the one attached to the report (Tr. 74). 

Mr. Herndon stated that during the investigation, he 

determined and "understood" that Mr. Mullens had "sprains, 

injury to, I believe, the LS vertebra, possible internal 

injuries, plus abrasions and various contusions." On the 

basis of this information, he concluded that an accident had 

occurred, and that it was required to be reported immediately 

(Tr. 75). With regard to Mr. Mullens' condition at the time 

of the accident, Mr. Herndon stated that according to the 

witnesses who were interviewed, Mr. Mullens was found with the 

miner restraining clamp block against his chest, and that he 

was against the rib in an unconscious state; After the 

machine was moved away, Mr. Mullens was semi-conscious, and 

after first-aid was administered, he was taken by ambulance to 

the Braxton Hospital, and then transported by helicopter to 

the University Medical Center later that evening (Tr. 76). 

Mr. Herndon was of the opinion that the respondent should 

have reported.the accident immediately at the time Mr. Mullens 

was transported to the Braxton Hospital because he had 

internal injuries and the scope of those injuries were not 

known (Tr. 77). In this regard, he stated as follows at (Tr. 

7 6): 

Q. Based on what information did you conclude 

that these injuries that Mr. Mullens had 

recei~~d had a reasonable potential to cause 

death? 

A. Based on, really, past experience, and the 

~act that I have done accident investigations 

in the past of this type, as well as reviewing 

reports from across the couritry, this type of 

an accident has, in many cases, become 

fatalities. ~s a matter of fact, I believe it ~as in 1983, the first fatality of the.year was 

this type of an injury, where a person was 

crushed between a miner and the rib. 

818 
And, at {Tr. 112): 

JUDGE KOUTRAS: In other words, the fact that 

Mr. Mullens didn't die, didn't in effect, 

reaffirm your past experience with incidents of 

this kind. 

THE WITNESS: The fact that Mr. Mullens didn't 

die does not make the determination of whether 

or not it was an accident. When Mr. Mullens 

was injured, there was the potential for a 

fatality. * * * * 

1"1.r. Herndon believed that Mr. Bauer accompanied 

Mr. Mullens to the hospital, and confirmed that no MSHA representatives were at the hospital because MSHA was not aware of 

the fact the accident had occurred {Tr. 77). 

With regard to his gravity findings concerning the 

section 50.10 violation, Mr. Herndon confirmed that while tne 

violation was not "significant and substantial" he believed 

the failure to immediately report the accident was a serious 

violation because MSHA needs to immediately investigate such 

incidents while the accident scene is undisturbed in order to 

obtain knowledge of the facts so that appropriate action is 

taken t6 pravent repeat accidents. Mr. Herndon confirmed that 

he based his "high negligence" finding on the fact that the 

respondent was aware of the seriousness of the accident on the 

·evening of Dec;ember 7, and was aware of tne fact that MSHA 

should have been notified {Tr. 79-80). The violation was 

abated by explaining to the respondent the Part 50 requirement 

for im.mediately reporting accidents {Tr. 80). 

Mr. Herndon confirmed that he cited a violation of section 50.12, because the respondent continued mining after the 

accident, and made some changes to the mining machine, and 

that this hampered MSHA's investigation of the accident. When 

the accident was reported some 20 hours late·r, the operator 

did not have permission to continue mining since a section 

103{k) order was issued at that time. Mr. Herndon stated that 

during the 20-hour period prior to the report to MSH~, the 

entry ~here the accident had occurred had been mined to completion and the continuous-mining machine right-hand traction 

motor had been replaced. The machine was also moved to a 

different entry {Tr. 82-84). Mr. Herndon conEirmed that the 

machine was operated by remote control, and that Mr. Mullens 

was the operator at the time of the accident {Tr. 85). 

Petitioner's counsel agreed that by the time the accident was 

reported by Mr. Bauer the changes to the accident scene and 

819 
the mining machine had already taken place CTr. 86). 

Inspector Herndon confirmed that the old traction motor was 

removed from the property, and MSHA was unable to determine 

whether any motor malfunction caused the accident CTr. 95). 

Mr. Herndon believed the violation was serious because by 

changing the scene, MSHA could make no determination as to the 

actual cause of the accident. He based his "high negligence" 

finding on the fact that the respondent was aware of the 

seriousness of the injury sustained by Mr. Mullens, but did 

not report it. Abatement was achieved by explaining the 

requirements of section 50.12 to the respondent (Tr. 95-96). 

On cross-examination, Mr. Herndon confirmed that he 

relied on the definition of "accident" as found in section 

50.2(h), to support the violations which he issued. He 

conceded that the definitional language does not use the word 

"serious," and if an accident had not occurred, the respondent 

was not required to report it or to preserve the scene (Tr. 

97). 

Mr. Herndon explained his investigative procedure, and he 

confirmed that neither Dr. Bordonada or anyone else at the 

Braxton Hospital were interviewed, and that the hospital 

records at Braxton and the University of west Vir~inia were 

not reviewed (Tr. 98). Mr. Herndon described the mining 

machine cable restraining clamp which had pinned Mr. Mullens 

to the rib (Tr. 102-105). He also identified the witnesses 

who were inte~viewed during the investigation, and confirmed 

that the cause of the accident was never factually determined 

and there were no eye witnesses (Tr. 105-110). 

In response to further bench questions, Mr. Herndon confirmed that at the time of the investigation, the miner motor 

which had been removed from the machine was disassembled and 

in the repair shop, but that no MSH~ electrical inspector 

looked at it, notwithstanding the fact that there was some 

indication that it was "shorting out inside.n In response to 

a question as to why the hospital records were not reviewed 

during the investigation, Mr. Herndon stated that "we have had 

problems getting these reports," and he conceded that no 

attempts were made to obtain the records d1.1ring the investigation (Tr. 116-117). In reply to a question as to the source 

of the information which appears at page 2· of MSHA's accident 

investigative report (exhibit P-6), concerning the Braxton 

Hospital diagnosis of the injuries sustained by Mr. Mullens, 

Mr. Herndon stated that the information was supplied by 

Mr. Bauer (Tr. 118). 

820 
Respondent's Testimony and Evidence 

Robert B. Stump, section foreman, stated that he was the 

section foreman on December 7, 1987, when Mr •. Mullens was 

injured, and he confirmed that he has received specialized 

medical or health training, and that he is a certified 

Emergency Medical Technician (EMT), licensed by the State of 

West Virginia, and certified through the National Registry. 

He also confirmed that he serves on the local Hacker Valley 

Medical Service Ambulance ~nd Emergency Squad, and that on a 

dozen or more occasions has rendered services at accident 

scenes involving traumatic fnjuries and fatalities. He 

explained the procedures he follows during his examination of 

such patients (Tr. 120-126). 

Mr. Stump stated that he became aware of the incident 

involving Mr. Mullens when he was summoned to the scene by 

Mr~ Sheldon Simmons, the buggy operator. Mr. Stump stated 

that when he arrived at the scene, he saw Mr. Mullens between 

the rib and the continuous miner cable stand-off, and he 

passed by him and shut off the machine. Mr. Mullens was in a 

sitting position, with his left knee into his chest, between 

his chest and the cable stand-off. After turning off the 

:machine, Mr. Stump looked at Mr. Mullens, and 15 seconds 

later, Mr. Mullens stated "Get me out ·of here, I'm hurt." 

Mr. Stump then re-started the machine and trammed the miner 

away from Mr. Mullens. He then exa1nined Mr. Mullens and 

determined that he was able to breathe and speak to him, and 

that "he did nave an airway." Mr. Mullens was then placed in 

a reclining position, and Mr. Stump continued his examination 

and explained· what he did. He confirmed that he found 

discoloration of the chest, apparent discomfort of the upper 

abdomen, and a bruised upper left leg. After administering 

further aid, Mr. Mullens was placed on a back board and 

transported out of the mine (Tr. 126-131). 

Mr. Stump stated that on the basis of his examination of 

Mr. Mullens he did not believe that the injuries he nad 

received had a reasonable potential to cause his death (Tr. 

132). He confirmed that he reported the incident to his shift 

foreman Harold Hayhurst by telephone approximately 15 minutes 

after it occurred, and that Mr. Hayhurst called for an 

ambulance. Mr. Stump then assembled his crew at the power 

centar to "settle them down, because everyone was excited," 

and he waited for Mr. Hayhurst to call him back. Mr. Hayhurst 

called him back and advised him that he woula come to the area 

as quickly as possible. After Mr. Hayhurst arrived at the 

scene, they measured the accident area and made a sketch of 

821 
the scene which is included as part of the respondent's accident report, exhibit P-3. Mr. Hayhurst then left the area, 

and at approximately 10:30 to 10:45, he authorized Mr. Stump 

to "start running coal or go back to work" (Tr. 134). 

On cross-examination, Mr. Stump stated that Mr. Hayhurst 

did not accompany Mr. Mullens to the hospital, and that during 

his conversations with Mr. Hayhurst, he expressed concern 

about Mr. Mullens, and asked "what shape that I thought James 

was in," and whether "I thought he was hurt bad." Mr. Stump 

confirmed that Mr. Hayhurst based his accident report on the 

information that he (Stump) supplied him, but that he did not 

observe Mr. Hayhurst filling out the report. Mr. Stump also 

confirmed that the information on the report form that 

Mr. ~ullens had suffered "possible internal injuries," was 

based on his examination which indicated that Mr. Mullens was 

experiencing palpitation of the upper abdomen, some discomfort 

in his legs, and had trouble moving them. Mr. Stump was of 

the opinion that Mr. Mullens could not have been alone for 

more than 90 seconds before he was discovered, and that his 

examination of Mr. Mullens reflected a very full pulse rate 

which was somewhat rapid because of "fear and anxiety," but 

"not enough to be overly concerned about" (Tr. 139). 

Mr. Stump stated that Mr. Mullens was pinned against the 

rib by the restraining clamp of the machine, and while he 

could have pulled Mr. Mullens out without moving the machine, 

he decided to move the machine away so that· he could have 

access to him.and not cause any further injury (Tr. 142). 

Mr. Stump stated that his experience with past trawnatic 

injury cases involved cases in which two-thirds of the victims 

were already dead at the scene, and one-third had injuries 

that would have a reasonable probability to cause death ~nd 

the victims were not conscious. He confirmed that he had no 

prior experience at the mine where he made any assessment as 

to whether or not any injury had a reasonable probability of 

death. He also confir~ed that he was aware of MSHA's injury 

reporting requirements, but had never previo~sly made any 

recommendations or a report which had to be immediately 

reported to MSHA (Tr. 143). 

Mr. Stump confirilled that he was interviewed by Inspector 

Herndon during the course of the investigation, but he could 

not recall informing the inspector about his medical training, 

or whether the inspector asked him about it. He also confirmed that the inspector never inquired as to the diagnosis 

that he made of Mr. ~ullena' injuries, and ~e could not recall 

discussing the reporting require~ents with the inspector (Tr. 

149). 

822 
Edward Bauer, respondent's Director of Safety and Training, stated that he provides emergency medical training for 

the respondent's employees, including first-aid training for 

supervisors as required by MSHA's regulations, and mine rescue 

training. He confirmed that in accordance with company 

procedures, anytime an employee is injured and taken to a 

hospital both he and the company president, Robert McGregor 

are notified. Mr. Bauer confirmed that at approximately 

8:40 p.m., on December 7, Mr. Hayhurst called him and advised 

him that Mr. Mullens was involved in an accident with a miner, 

and that he was caught between the rib and the miner, and that 

an ambulance had been called (Tr. 153). Mr. Bauer stated that 

he directed Mr. Hayhurst to speak with Mr. Stump in order to 

Jetermine Mr. Mullens' vital signs and his injuries. Mr. Bauer 

stated that he learned from Mr. Hayhurst that Mr. Mullens was 

complaining of pain in his leg, but that Mr. Stump had indicated that he was stable and that his vital signs were good. 

Mr. Bauer then proceeded to the hospital and advised 

Mr. Hayhurst to inform Mr. McGregor about the accident. 

Mr. Bauer arrived at the hospital emergency room approximately 

35 minutes ahead of Mr. Mullens, and he helped unload him from 

the ambulance when he arrived. At that time, Mr. Mullens 

stated that his leg hurt and he was trying to explain to the 

ambulance attendants the circumstances under which he was 

injured, but they had some difficulty in understanding the 

mining terminology used by Mr. Mullens. Mr. Bauer spoke with 

Mr. Mullens and explained further to the attendants (Tr. 156). 

Mr. Bauer stated that Mr. Mullens arrived at the hospital 

at 9:35 p.m., and that shortly after his arrival Dr. Bordonada 

examined him in the emergency room. Mr. Bauer stated that at 

approximately 10:05 p.m., he asked or. Bordonada about the 

nature of the injuries sustained by Mr. Mullens, and the 

doctor explained that he was concerned about the pain in the 

abdomen, but was not sure about the back, and mentioned that 

Mr. Mullens had some abrasions on his hand and leg. Mr. Bauer 

stated that he asked the doctor whether or not there was any 

chance at all that the injuries sustained by Mr. Mullens would 

cause him to die, and that the doctor responded "no" (Tr. 

15 8) • 

Mr. Bauer confirmed that after speaking with the doctor, 

he received a call at the hospital from Mr. McGregor inquiring 

about the condition of Mr. Mullens. Mr. Bauer stated that he 

told Mr. McGregor about his conversation ,.,i th Dr. Bocdonada, 

and Mr. McGregor inquired as to whether or not the accident 

needed to be reported under Part 50, and Mr. Bauer informed 

him about the reporting requir~nent in cases where an injury 

823 
has a reasonable potential to cause death. Mr. McGregor then 

instructed Mr. Bauer to insure that he asked the doctor that 

specific question, and at approximately 10:25 Mr. Bauer spoke 

to the doctor again and asked him whether the injuries sustained by Mr. Mullens had a reasonable potential to cause 

death. Mr. Bauer stated that the doctor again answered "no," 

and that he called Mr. McGregor back to inform him of this 

conversation with the doctor (Tr. 160}. 

Mr. Bauer stated that on the day after the accident, he 

was at the mine in the company of MSHA Inspector Roy Bennett, 

and Mr. Bennett asked him whether or not the mine had 

experienced any "lost time and accidents." Mr. Bauer stated 

that he explained the circumstances surrounding Mr. Mullens' 

accident, including his conversations with the doctor and the 

EMT treatment received by Mr. Mullens, and advised Mr. Bennett 

of his opinion that the accident was not reportable. 

Mr. Bennett informed Mr. Bauer that the accident should be 

called in to MSHA, and following his instructions, Mr. Bauer 

reported the accident by telephone at approximatel~ 12:30 noon 

on December 8, to the MSHA Clarksburg Field Office. He later 

spoke with Mr. Satterfield of that office at 4:30 p.m. that 

same day, and after explaining the circumstances to him, 

Mr. Satterfield issued a section 103(k} order (Tr. 171}. 

Later, on December 10, Inspector Herndon came to Mr. Bauer's 

off ice to examine the accident report and the training records 

oE Mr. Mullens and Mr. Stump. Mr. Stump stated that at no 

time on December 7, or thereafter, did he have reasonable 

cause to beli~ve that the injuries sustained by Mr. Mullens 

could have caused his death (Tr. 172). 

On cross-examination, Mr. Bauer confirmed that he made no 

notes concerning his discussions with Dr. Bordonada, but did 

write down the reported injuries sustained by Mr. Mullens in 

order to report them to Mr. McGregor. Mr. Bauer could not 

recall the doctor telling him that he suspected a possible 

ruptured spleen or internal abdominal injuries, but did recall 

the doctor telling him that he was concerned about the pain in 

the abdominal region and the leg (Tr. 173}. ee denied that 

the doctor said anything about taking x-rays or fluid from the 

abdomen before he could determine whether the injuries were 

serious, and he re-confirmed that the doctor responded "no" to 

his question concerning any reasonable potential for death 

{Tr. 174}. Mr. Bauer confirmed that he did not inquire as to 

why Mr. Mullens was being taken to another hospital by helicopter because it was not uncom;non to transfer patients out of 

Braxton County by helicopter (Tr. 175}. ~r. Bauer stated that 

the exact words he used in posing his question to Dr. Bordonada 

were whether there was "any chance at all that he would die 

824 
from those injuries" (Tr. 176). Mr. Bauer confirmed that he 

asked the doctor no further questions after the lab reports 

were in, and he denied any knowledge that Mr. Mullens had blood 

in the fluid, or that the doctor suspected a renal contusion or 

bruise of the kidney, or a possible spleen injury (Tr. 179). 

In response to further questions, Mr. Bauer confirmed 

that he is a certified Emergency Medical Technician, and if 

the doctor had t6ld him that Mr. Mullens had a ruptured spleen 

or blood in his abdomen, he would have had some doubt about 

the doctor's negative answer that there was no reasonable 

potential for death and would have immediately reported the 

accident. However, he relied on the doctor's negative answers 

to his questions in forming his opinion that there was no 

reasonable potential for death (Tr. 179-180). 

Mr. Bauer confirmed that he participat~d in MSHA's accident investigation, and that he informed Inspector Herndon of 

his view that the accident was not reportable. However, 

Mr. Satterfield took the position that because of the fact 

that the accident involved a mining machine, the accident was 

immediately reportable (Tr. 182). Mr. Bauer also confirmed 

that when he spoke to Mr. Satterfield at 4:30 p.m., on 

December 8, wh~n the 103Ck) order was issued, he informed 

Mr. Satterfield that the section had been mined out and the 

machine removed, and that Mr. Satterfield stated that he did 

not want the scene "di~turbed any more" (Tr. 182). 

Mr. Bauer agreed that the accident was a "lost time accident" which needed to be reported, and that as of December 9, 

he had not completed the necessary paperwork. He confirmed 

that he was not cited for failure to file a lost time accident, and MSHA's counsel confirmed that such accidents need 

not be reported immediately (Tr. 185). 

Robert McGregor, respondent's President and Chief Bxecutive Operations Officer, stated that he was thoroughly 

familiar with MSHA's Part 50 reporting requi~ements, and that 

during his past experience in the mining industry has had 

occasion to make such reports. He confir~ed that he first 

learned of the incident concerning Mr. Mullens when he 

received a telephone call from Mr. Hayhurst on December 7, at 

approximately 9:00 p.m. Mr. McGregor informed Mr. Hayhurst to 

"stop everything on the section" and to contact Mr. Stump for 

a full investigation and "a drawing of the circumstances." 

Mr. McGregor stated that the thought of immediately reporting 

the accident crossed his mind after Mr. Hayhurst told him of 

the circumstances concerning Mr. Mullens bein·::J pinned against 

the rib by a miner, but he waited until Mr. Mullens was at the 

825 
hospital so that he would have a preliminary diagnosis of the 

problem. Mr. McGregor then called the hospital and spoke with 

Mr. Bauer who informed him that the doctor was concerned about 

Mr. Mullens' back but said that his life was not in danger. 

Mr. McGregor discussed the reporting requirements of .Part 50 

with Mr. Bauer and instructed him to ask the doctor about the 

potential for death, using the exact language of the standard, 

because he did not want any misunderstanding. Mr. Bauer 

called him back and stated that the doctor had informed him 

that Mr. Mullens' injuries had no reasonable potential to 

cause death (Tr. 194-197). 

Mr. McGregor stated that after speaking with Mr. Bauer~ 

he called Mr. Hayhurst and instructed him to "go ahead and 

release the section," and that they would confer the next day 

to investigate the accident. When he later spoke with 

Mr. Bauer, he was informed that Inspector Bennett was of the 

opinion that the accident should have been im.nediately 

.reported, and Mr. Bauer advised him that Mr. Satterfield had 

placed a "K order" on the section and was going to come to the 

mine to investigate the accident CTr. 199). Mr. McGregor 

stated that he personally called Mr. Satterfield and tried to 

explain why the accident was not immediately· reported, but 

that Mr. Satterfield took the position that it should have, 

and gave him the following reasons for his position (Tr. 199): 

A. * * * [I] tried to explain to him why we 

hadn't called in at the time. Basically, that 

the doctor had told us at that time, and our 

people said they didn't feel his life was 

threatened as a result of his injuries. At 

that time, we got into a lengthy discussion. 

He basically told me that didn't matter. He 

said the nature of the injury could have been 

fatal. The event itself could have been fatal, 

and that's what he was basin3 his decision. I 

said, "Jim, that's not the way I read the law." 

He said, "Well, that's the way I see ii." I 

said, "Are you telling me that if somebody gets 

a brush burn, but if they had been six inches 

over, that it could have killed them, that's 

still a" -- he said, "That's exactly what I'm 

telling you." 

~s a result of that, as a matter of that, 

Ed Bauer and I got together and drew up. a new 

set of guidelines, and quite frankly, the 

reason we're here today is because, Eoc our 
purpose, we want to comply with the law and we 

wanted the position clarified. 

On cross-examination, Mr. McGregor confirmed that he 

first learned of the accident from Mr. Hayhurst, and that 

Mr. Hayhurst informed him that Mr. Mullens had a leg injury 

and a pain in his stomach, but that his vital signs were good. 

Mr. McGregor stated that he informed Mr. Hayhurst that he 

wanted nothing further done on the section until he could 

investigate to learn exactly how serious Mr. Mullens was 

injured. Mr. McGregor stated that he then called Mr. Bauer at 

the hospital approximately an hour after he spoke with 

Mr. Hayhurst, but that he (McGregor) never spoke to the doctor 

(Tr. 200-204). 

Mr. McGregor confirmed that he was concerned about the 

accident, and in order to make a record, he wanted to investigate the incident and take measurements and detail all of the 

particulars. Be confirmed that Mr. Hayhurst said nothing ~o 

him about any possible internal injuries suffered by 

Mr. Mullens, other than that "his stomach was hurting" (Tr. 

205). Mr. McGregor also confirmed that he received a report 

concerning the prevailing conditions on the section after the 

accident from Mr. Hayhurst before releasing the section to 

continue working, and he explained why he did not initially 

report to MSHA after receiving this information CTr. 206-209). 

When asked about the factors he relied on when he made his 

decision to release the section after the accident, 

Mr. McGregor stated as follows (Tr. 217-21.8): 

THE WITNESS: Of course, the one factor, was 

the information I got from the hospital, and 

the other factor was that we had -- I was told 

that the miner was in good operating condition, 

that it worked fine, that we had made a drawing 

of the area, and that I felt there was no 

reason not to proceed. That there would be 

nothing to gain one way or the other, o~ce we 

had the dimensions, a picture of the scene and 

the fact that the machinery, at least, was 

reported to me that it was operating properly 

with the exception that the remote control box 

was damaged, where as it turned out later, was 

the cause of the accident. 

Where the cable had caught his hand, it 

set his control box on the ground. He had two 

traffi leaders that worked the cats. When he was 

tramming them back, he wasn't -watching the 

827 
cable and the clamp caught his --.came over his 

hand and forced his hand down on the control 

levers. Brought the machine back to him. 

Therefore, he got his abrasion on the hand. 

When he got his hand free, it bent the little 

guard down that we had on the side of the 

control box. 

So.at that point, I felt that there was no 

reason not to put the section back in service, 

and we would continue the investigation the 

next day. 

Inspector Herndon was recalled by the court, and he 

denied any knowledge of any MSB:A requirement for the immediate 

reporting of accidents involving miners being pinned against 

the rib. However, he confirmed that in most cases he has been 

involved in when a miner is pinned against a rib there is a 

reasonable potential for death (Tr. 220-221). He .c6nEirmed 

that he issued the citation because of the information related 

to him during the investigation from mine personnel who were 

with Mr. Mullens at the time of the accident, namely, that 

Mr. Mullens was conscious or semi-conscious, and suffered a 

compression fracture of the fifth lumbar vertebra, contusions 

to the lung, abrasions on the left hand, and a pos~ible 

strained knee. He concluded from all of this that the 

injuries presented a reasonable potential for death and should 

have been immediately reported (Tr. 222-223). 

Findings artd Conclusions 

Fact of Violation - 30 C.F.R. § 50.10 

The respondent is charged with an alleged violation of 

mandatory reporting standard 30 C.F.R. § 50.10, for failing to 

immediately notify MSHA of the occurrence of the accident 

involving Mr. Mullens. The statutory requirement for reporting mine accidents is found in section 103Cj"> of the 1977 Mine 

Act, which states in pertinent part as follows: "[t]n the 

event of an accident occurring in any coal or other mine, the 

operator shall notify the Secretary thereof and shall take 

appropriate measures to prevent the destruction of any evidence which would assist in investigating the cause or causes 

thereof." While it is clear that an accident must be 

ceported, the requirement that it be done immediately is not 

Eound in the statute. The requirement .Eor an immediate report 

is found in the regulation at 30 C.F.R. § 50.10, which 

provides as follows: 

828 
§ 50.10 Immediate notification. 

If an accident occurs, an operator shall 

immediately contact the MSHA District or Subdistrict Office having jurisdiction over its mine. 

If an operator cannot contact the appropriate 

MSHA District or Subdistrict Off ice it shall 

immediately contact the MSHA Headquarters 

Office in Washington, D.C., by telephone, toll 

free at (202) 783-5582. -

The definition of the t~pe of "accident" which must be 

ir&~ediately reported to MSH~ pursuant to section 50.10, is 

found at 30 C.F.R. § 50.2(h)(2), which defines such an accident as "An injury to an individual at a mine which has a 

reasonable potential to cause death." 

The evidence in this case establishes that the respondent 

reported the accident to MSHA by telephone at 12:30 p.m. and 

4:30 p.m., on December 8, 1987. Petitioner takes the position 

that the injuries sustained by Mr. Mullens in the accident 

presented a reasonable potential for causing his death, and 

that the respondent should have immediately reported the accident when it occurred on December 7, 1987. The respondent 

takes the p_osition that the injuries sustained by Mr. Mullens 

did not present a reasonable potential for causing his death, 

and that the incident of December 7, 1987, was therefore not 

an "accident" within the definition found in section 

50.2Ch)(2), or an "accident" which was required to be reported 

immediately to MSHA. 

In MSHA v. Climax Molybdenum, 2 FMSHRC 1967, a miner 

suffered fractures to the left femur, the pelvis, and the 

right hip, when a 7,000 pound tire fell on him. An initial 

examination which took place at the mine infirmary by an 

attending doctor and nurse showed that the victim's vital 

signs were stable and he was cooperative, and the attending 

medical personnel advised the mine safety diiector that while 

the injuries s~ffered by the miner were serious, they were not 

life threatening. The victim was transferred from the infirmary to a local hospital for treatment, and was subsequently 

transferred again to another hospital in Denver where he 

developed a Eat embolism associated with a bone fracture, but 

this condition was not considered to be life-threatening. 

in the Climax case, Judge Morris found no merit in MSHA's 

contention that imrnediate notification is cequi red \l7henever 

there exists any question as to whether an injury is life 

829 
threatening. He also rejected MSHA's contentions that immediate reporting was required due to a combination of circumstances, namely, the injuries were serious, a fat embolism 

developed, intensive case was required, and the miner v1as 

moved to three different treatment facilities. In short, 

Judge Morris found that the injuries sustained by the miner 

were not required to be immediately reported pursuant to 

section 50.10, because MSH~ offered no credible evidence to 

support a conclusion that the injuries had a reasonable 

potential to cause the death of the miner. I reached the same 

conclusion in Hecla Mining Company, 1 FMSHRC 1872 (Novamb·ar 

1979). 

In MSHA v. Allied Chemical Corp., 7 FMSHRC 2053 (December 

1985), Judge Morris affirmed a violation of section 50.10, 

after concluding that the injuries sustained by a miner who 

received an electrical shock posed a reasonable potential to 

cause death. The shock victim was hospitalized and his heart 

beat was monitored for 12 to 18 hours. The attending hospital 

physician advised the inspector that the injured miner was 

being monitored because there was still a potential for death, 

and Judge Morris was not persuaded by the testimony of another 

doctor who was experienced in the hazards oe elect~ical shock, 

and who testified for the operator that in his opinion, the 

injuries would not have caused the miner's death. 

MSHA's position in this case is that ~ny determination of 

whether there are injuries with a reasonable potential to 

cause death and, thus, an immediately reportable accident, is 

subject to a "reasonable person test." MSHA asserts that a 

reasonable determination must be made at the scene of the accident or the earliest point or as near in time to the accident 

as possible based on the particular facts of the case. MSHA 

concludes that as soon as a reasonable person would conclude 

that there is a reasonable probability of death from the 

injuries involved, the accident should be reported. MSHA 

further concludes that the determination does not necessarily 

require a medical opinion because such a req~irement would 

def eat the purpose of the regulation since valuable time would 

be lost. Of course, once there is a medical opinion to the 

effect that the injury poses a reasonable potential for death, 

MSHA believes that it must be immediately reported. 

MSHA maintains that in view of Mr. Mullens' condition at 

the time of the accident, mine management should hav·~ made a 

determination that his injuries had a reasonable potential to 

cause death and, therefore, should have immediately ceported 

the accident. tn support of this conclusion, MSHA relies on 

830 
the fact that Mr. Mullens was knocked unconscious, mine management suspected internal injuries, Mr. Mullens was rushed to 

the hospital by ambulance, and the "general knowledge" that 

the type of accident (a miner bein3 pinned against a rib by a 

continuous-mining machine) is very serious and sometimes 

fatal. 

MSHA's conclusions that the respondent should have made a 

reasonable determination at the time of the accident that 

Mr. Mullens' injuries posed a reasonable potential for causing 

his death are based on the testimony of MSH~ Inspector Herndon, 

the individual who participated in the accident investigation 

and wrote the accident report of December 18, 1987 (Exhibit 

P-6). Mr. Herndon testified that his interviews with mine 

personnel "suggested" that Mr. Mullens had suffered internal 

injuries, and that it was his "understanding" that Mr. Mullens 

had sustained "possible" internal injuries. 

Mr. Herndon conceded that at the time of MSHA's accident 

investigation, no interviews were conducted with the attending 

emergency room doctor, and no hospital records concecning 

Mr. Mullens' condition were reviewed. He also conceded that 

he did not !'eview the accident report prepared by Mr. Hayhurst 

which contains a notation that Mr. Mullens had sustained 

"possible internal injuries" (exhibit P-3). Mr. Herndon's 

accident investigation report reflects that he issued the 

citation because of the respondent's failure to immediately 

notify MSHA "of this serious accident" (exhibit P-6, pg. 3). 

Mr. Hern~on testified on direct examination that it was 

his understanding that in addition to possible internal 

injuries, Mr. Mullens had sustained sprains, an injury to the 

LS vertebra, abrasions and various contusions, and that he was 

in an "unconscious state" when first observed, but was 

semi-conscious when the machine was moved away from him. When 

recalled to testify later in the hearing, Mr. Herndon stated 

that Mr. Mullens had suffered a compression fracture of the 

fifth lumbar vertebra, contusions to the lung, abrasions to 

the left hand, and a possible strained knee. This information 

also appears at page 2 of his accident report, and Mr. Herndon 

asserted that he .received the information from Mr. Bauer after 

Mr. Mullens was taken to the Braxton Hospital emergency room. 

Mr. Herndon testified that he believed the respondent 

should have immediately reported the accident at the time 

Mr. Mullens was transported to the hospital by ambulance 

because he had suffered interhal injuries, the scope of which 

were unknown. When asked the basis for his conclusion that 

Mr. Mullens' injuries had a reasonable potential to cause 

831 
death, Mr. Herndon responded "past experience, and the fact 

that I have done accident investigations in the past of this 

type, as well as reviewing reports from across the country, 

this type of an accident has, in many cases, become fatalities" 

(Tr. 76). Mr. Herndon later confirmed that in most cases he 

has investigated, when a miner is pinned against the rib, there 

is a reasonable potential for death CTr. 220-221). 

In my view, Inspector Rerndon's belief that the respondent 

should have immediately reported the accident at the time that. 

Mr. Mullens was taken out of the mine and transported to the 

hospital emergency room was based on several factors. 

Mr. Herndon was of the opinion that since the accident was 

serious, it was required to be immediately reported. I find no 

such requirement in the cited regulation. The definition of-a 

reportable accident relied on by MSHA does not include any language with respect to the degree of injury, and Mr. Herndon's 

characterization of the accident as "serious" cannot support a 

violation for failure to immediately report the matter. 

Inspector Herndon's reliance on his past experience concerning miners b~ing pinned against a rib by a mining machine 

cannot ipso facto support any reasonable conclusion that the 

injuries sustained by Mr. Mullens posed a reasonable potential 

for death. The fact that MSHA generally believes that accidents of this type generally have been known to result in the 

demise of past accident victims is irrelevant. MSHA is bound 

by its own regulatoiy defini~ion of an accident which is 

required to b~ immediately reported, and given that definition, any such determination must necessarily be made on the 

facts of each incident on a case-by-case basis. Further, if 

MSH~ believes that such incid~nts in general need to be 

reported immediately, regardless of the extent of any injury, 

it is free to amend its regulations. 

In my view, the question of whetl1er the respondent met 

its duty to immediately report the accident in question 

depends on when it possessed reasonably reliable information 

which would have reasortably led it to conclude that the accident was immediately reportable. On the facts of this case, 

it seems clear to me that Inspector Herndon had no personal 

first-hand knowledge of the injuries sustained by Mr. Mullens 

at the time of the accident. He issued the citation on the 

basis of ce·rtain information given to him during the course of 

his investigation. The issue is not whether Mr. Herndon, after 

the fact believed that Mr. Mullens' injuries were such as to 

posf!aceasonable potential for death, but whether oc not those 

management representatives who had first-hand knowledge of the 

832 
injuries sustained by Mr. Mullens acted reasonably or unreasonably in concluding that there was no reasonable potential for 

death, and whether they acted reasonably or unreasonably in 

concluding that they were not required to iilLrnediately report 

the accident to MSHA during the critical time period beginning 

with the occurrence of the accident and the removal and 

transportation of Mr. Mullens from the mine to the hospital. 

After careful examination of all of the testimony and 

evidence presented in this case, I find no credible· or 

probative evidence to support MSHA~s assertions that when 

Mr. Mullens was removed from·the mine and transported to the 

hospital, his condition presented a reasonable potential for 

death, and that the respondent knew, or should have known that 

this was the case, and should have immediately reported it ··to 

MSHA •. MSHA's reliance on the fact that Mr. Mullens was 

knock'.ed unconscious, that management suspected internal 

injuries, that he was transported to the hospital, and that 

incidents of this type have gene.rally be known to result in 

serious, and sometimes fatal injuries, to support its 

conclusions that the accident was reportable at the time of 

its occurrence is rejected. 

The credible testimony of Robert Stump, a trained and 

experienced certified Emergency Medical Technician who first 

observed and examined and administered first aid to 

Mr. Mullens, and who assisted in removing him from the scene 

and placing him in the ambulance, reflects that when he first 

observed Mr. Mullens he could not tell whether or not he was 

conscious, and that Mr. Mullens was looking at him while bent 

over in a sit~ing position (Tr. 60, 128). Mr. Stump testified 

that within 15 seconds after reaching Mr. Mullens and turning 

off the machine, Mr. Mullens spoke to him. After tramming the 

machine away from Mr. Mullens, Mr. Stump placed him in a 

reclining position and examined him further and found that he 

had a very full pulse rate which was somewhat rapid because of 

"fear and anxiety," but not rapid enough to cause Mr. Stump to 

be concerned. Mr. Stump explained the detai°ls of his examination of Mr. Mullens, and confirmed that he followed his standard EMT examination procedures, and established spontaneous 

eye and verbal contact with Mr. Mullens, and Mr. Mullens confirmed and showed him that he could move his hands. Shortly 

before placing Mr. Mullens on a "bac.~ board," Mr. Stump stated 

that Mr. Mullens "was responding to us, talking with us. We 

could ask him what was hurting and everything, and he would 

respond whatever his problems were, \vhat he was thinking or 

anything else" (Tr. 130-131). 

833 
Mr. Stump confirmed that Mr. Mullens was pinned against 

the rib by the machine cable restraining clamp, and that while 

it was not necessary to remove the machine in order to extricate Mr. Mullens, he moved the machine so that he could have 

better access to Mr. Mullens and to preclude any possible 

further injury if he had simply "jerked him out" (Tr~ 141-142). 

Although Mr. Stump confirmed that he suspected that 

Mr. Mullens may have sustained possible internal injuries 

because of discoloration and palpitation of his upper abdomen, 

had trouble moving his legs, and was experiencing discomfort 

in his legs, and had an abnormal respiratory rate which was 

"not too bad" (Tr. 136-137), he concluded that on the basis of 

his examination of Mr. Mullens at the scene of the accident 

the injuries sustained by Mr. Mullens did not have a reasonable 

potential for causing his death (Tr. 132). Mr. Stump confirmed 

that upon Mr. Hayhurst's arrival at the scene, Mr. Hayhurst 

asked him about Mr. Mullens' condition (Tr. 138). Mr. Bauer 

testified that Mr. Hayhurst informed him that Mr. Stu.mp advised 

him that Mr. Mullens was complaining of pain in his leg, but 

that he was stable and that his vital signs were good (Tr. 154). 

Mr. Bauer testified further that he assisted in removing 

Mr. Mullens from the ambulance upon his arrival at the 

hospital, and that while he was complaining about his leg 

hurting, he was speaking distinctly, and was talking to all of 

the hospital and ambulance personnel about what had happened 

(Tr. 155-156) • 

In view of the foregoing, I cannot conclude that 

Mr. Stump, a trained medical technician who had prior experience with traumatic injuries, and who after examining and 

treating Mr. Mullens at the scene of the accident, co~cluded 

that his injuries were not life threatening and did not 

present any reasonable potential for death, acted unreasonably 

in reaching that conclusion at that point in time. Nor can I 

conclude that Mr. Hayhurst or Mr. Bauer acted unreasonably in 

not immediately reporting the accident to MSHA at the time of 

its occurrence. Alchough Mr. Hayhurst did not testify in this 

case1 based on the testimony of Mr. Stump and Mr. Bauer, thece 

is a strong inference that Mr. Hayhurst relied on the information gi •..ren to him by Mr. Stump. The fact that Mr. Stump may 

have told Mr. Hayhurst that Mr. Mullens may have sustained 

"possible internal injuries," does not in my view support any 

reasonable conclusion that such undiagnosed injuries, the 

extent of which were not known, presented a reasonable 

potential for death. Insofar as Mr. Bauec is concerned, he 

first learned of Mr. Mullens' injuries through Mr. Hayhurst 

who informed him of Mr. Stump's assessment that Mr. Mullens 

was stable and that his li~e si~ns were good. Mr. Bauer also 

834 
personally observed Mr. Mullens when he helped remove from the 

ambulance, and Mr. Mullens was conscious and speaking freely 

with him and the medical personnel who were present while 

explaining what had occurred to him. Under the circllinstances, 

I cannot conclude that Mr. Bauer had any reasonable basis for 

concluding that Mr. Mullens' injuries had a ieasonable 

potential for causing death, nor can I conclude that Mr. Bauer 

acted unreasonably in not immediately reporting the accident 

to MSHA at that point in time. 

MSHA asserts that following Mr. Mullens' transport to the 

hospital and examination by Dr. Bordonada, the respondent's 

duty to immediately report the accident became even clearer, 

because the doctor diagnosed some very serious and possibly 

life threatening injuries to Mr. Mullens and ordered him 

transferred by helicopter to another hospital. In addition to 

Dr. Bordonada's diagnosis and treatment of Mr. Mullens upon 

his arrival at the hospital, the evidentiary underpinning for 

MSHA's conclusion that Mr. Mullens' injuries posed a reasonable potential for death, and thus were required to be 

immediately be reported to MSHA at the time Mr. Mullens was 

admitted to the hospital, is the doctor's opinion that the 

injuries sustained by Mr. Mullens presented a reasonable 

potential for death, the doctor's denials that Mr. Bauer or 

any other management representative ever asked him whether the 

injuries were life threatening or posed a reasonable potential 

for de~th, and the doctor's assertion that if he had been 

asked whether or not Mr. Mullens' injuries had a reasonable 

potential for.death he would have answered_ in the affirmative. 

Dr. Bordonada confirmed that he was initially informed by 

radio by the paramedics who brought Mr. Mullens to the emergency room that he had been "crushed" by a continuous-mining 

machine and was unconscious, and that the paramedics may have 

called for a helicopter. In light of this initial call, the 

doctor further confirmed that he had "great concern" because 

"when you have injury like this, you thing right away of helicopter" CTr. 55). He believed that he asked· for the assistance 

of a helicopter because of "my suspicion of the kind of injury 

that needs more work-up and treatment and he should be taken to 

another facility where they can provide these kind of diagnostic instruments" (Tr. 35). The doctor also confirmed that he 

called for the helicopter to transfer Mr. Mullens to the 

West Virginia University Hospital and spoke with a doctor at 

that hospital who agreed to the trans£er CTr. 28, 35, 49). He 

also confirmed that the call for the helicopter was placed at 

approximately 11:00 p.m., and it arrived at the Braxton 

Hospital at approximately 12:00 midnight, and left with 

Mr. Mullens at 12:30 a.m. (Tr. 49-50). 

835 
Dr. Bordonada confirmed that when he first observed 

Mr. Mullens, he was conscious, his blood pressure was within 

normal limits, and his pulse and respiratory rates were high. 

He also indicated that Mr. Mullens was scared, and he agreed 

that it was possible that this would cause elevated pulse and 

respiratory rates (Tr. 40). The doctor also confirmed that 

his concern with respect to the life threatening aspects of 

Mr. Mullens' injuries focused on his belief that Mr. Mullens 

may have sustained a ruptured spleen, and that his conclusion 

in this regard was reached sometime after he had done an 

abdominal t3.p sometime after 10:45 p.m. (Tr. 48). He also 

confirmed that a ruptured spleen presents a problem in that a 

patient may go into shock (Tr. 32, 49). He agreed that the 

records from the West Virginia University Hospital ultimately 

confirmed that Mr. Mullens did not have a ruptured spleen or a 

fractured vertebrae, but that he did sustain a sprained leg, a 

cut on his finger, and a bruise or contusion to the lumbar 

plexus, or nerves supplying the leg (Tr. 52-53). When asked 

whether these injuries posed a reasonably potential to cause 

death, he responded "One Hundred percent no" (Tr. 53). The 

doctor confirmed that none of the hospital records contain any 

"form questions" as to whether oc not a patient's condition 

may be "life threatening," and no such conclusions are 

included in any of the reports (Tr. 38). 

Although Dr. Bordonada qenied that Mr. Bauer ever asked 

him whether or not he believed that Mr. Mullens' injuries were 

life threatening or had a reasonable potential for causing 

death (Tr. 35, 44), I conclude and find that his negative 

answers were equivocal. For ~xample, when he was first asked 

the question, or. Bordonada responded "I don't believe so" and 

"I do not think so" (Tr. 36). When asked the same question on 

cross-examination, he responded "I don't believe so" and "I 

don't recall any conversation of such nature" (Tr. 44). When 

asked whether he could have had such a conversation, 

Dr. Bordonada replied "it's most possible, because I talk to 

so many people when you get out of the room"· (Tr. 45). When 

a~ked about a second conversation with Mr. Bauer with regard 

to the same question, the doctor conceded that it was possible 

that he had such a conversation with Mr. Bauer (Tr. 45). 

Dr. Bordonada stated that since establishing his me~ical 

~ractice in West Virginia in 1981, his hospital practice since 

l1is residency has been confined to diagnosis and treatment in 

the hospital einergency room, and that at the tirne of the accident on Decembar 7, 1987, he was the attending emergency room 

doctor CTr. 21-22). He also stated that he had seen Mr. Bauer 

at the emergency room, !{.new who he was, and knew that he 

836 
worked for the respondent, and that whenever there was an 

injury involving a miner, Mr. Bauer would be there. The 

doctor also confirmed that he knew that Mr. Bauer was at the 

emergency room asking questions (Tr. 44). He also confirmed 

that he was the only doctor in the emergency room and that he 

spoke to many people after he left the roof (Tr. 45, 56). 

The testimony by Doctor Bordonada in this case was based 

on his recollection of the accident which had occurred a year 

prior to the hearing. His testimony was based on his review 

of the Braxton Hospital emergency room outpatient records, 

which included his notations concerning his diagnosis, observations, and certain test results incident to Mr. Mullens' treatment. Given the fact that Dr. Bordonada was obviously 

preoccupied with attending to Mr. Mullens, the fact that he 

was the only doctor on duty at the time, and had spoken to 

many people in and around the emergency room~ I find it difficult to believe or expect that he would specifically and 

unequivocally remember that he did not have the conversations 

in question with Mr. Bauer. Contrary to MSHA's assertion at 

page 15 of its posthearing brief that the doctor specifically 

denied the conversation, Dr. Bordonada, on several occasions 

during his testimony, conceded that while he had no recollection of the conversation, it was possible that such conversations took place. The doctor also conceded that he knew 

Mr. Bauer as· an individual who appeared at the emergency room 

whenever a miner was injured, and knew that he was at the 

emergency room asking questions. 

Respondent's safety director Edward Bauer confirmed that 

he went to the. hospital pursuant to company policy that 

required both he and Mr. McGregor to be notified anytime a 

miner is injured and taken to the hospital. Mr. Bauer unequivocally testified that on two occasions during the course of 

the evening of December 7, 1987, while at the emergency room, 

he asked Dr. Bordonada whether or not Mr. Mullens' injuries 

were life threatening. Mr. Bauer stated that he first asked 

the doctor whether or not the injuries woul~ cause Mr. Mullens 

to die, and later, upon the instructions ot the company president, Robert McGregor, he asked the doctor whether Mr. Mullens' 

injuries had a reasonable potential for causing death. 

Mr. Bauer confirmed that the doctor gave negative answers to 

both questions. Mr. Bauer recalled the specific fo~n of the 

Eirst question, and stated that he asked the doctor whether 

there was "any chance at all that he (Mullens) would di-: from 

those injuries" CTr. 176). 

Mr. Bauer, who is also a trained Bmergency Medical 

Technician (EMT), and who had knowledge of MSHA's accident 

837 
reporting requirements, confirmed that the doctor advised him 

that he was concerned about the pain in Mr. Mullens' abdomen, 

was not sure about his back, and that Mr. Mullens had some 

abrasions on his hand and leg. Mr. Bauer stated that he made 

notes concerning these reported injuries so that he could 

report then to Mr. McGregor, but he could not recall.the doctor 

telling him that he suspected a possible ruptured spleen or 

internal abdominal injuries. In view of his EMT training, 

Mr. Bauer asserted that if the doctor had told him that 

Mr. Mullens had a ruptured spleen or blood in his abdomen, he 

would have doubted the doctor's negative responses to his 

inquiries as to whether Mr. Mullens' injuries were life 

threatening, and immediately reported the matter to MSHA. 

Mr.. Bauer maintained that he relied on the doctor's negative 

responses in forming his opinion that Mr. Mullens' injuries 

did not pose a reasonable potential for death. 

Respondent's President, ~obert McGregor, confir~ed that 

he was thoroughly familiar with MSHA's Part 50 reporting requira~ents, including the requirement for reporting accidents involving injuries which present a reasonable potential 

for causing death, and that he has often prepared and made 

such reports during the years he has been in· the mining 

business. Mr. McGregor corroborated Mr. Bauer's testimony 

concerning his telephone communications with Mr. Bauer on the 

evening of the accident, including Mr. Bauer's assertions that 

he communicated to him the doctor's negative responses wLth 

respect to whether or not Mr. Mullens' injuries were 

potentially iife threatening. Mr. McGregor confirmed that he 

first learned of the accident from Mr. Hayhurst who informed 

him that Mr. Mullens had a leg injury and pain in his stomach, 

but that his vital signs were good. Mr. Hayhurst did not 

mention any internal injuries, and Mr. McGregor confirmed that 

he pursued the matter further by calling the hospital to speak 

to Mr. Bauer about Mr. Mullens' condition. 

MSHA's assertion that the evacuation of Mr. Mullens to 

another hospital by helicopter should have alerted mine management that his injuries posed a reasonable potential for death 

is rejected. I find that or. Bordonada's call for a helicopter was prompted by the initial information he received before 

his examination of Mr. Mullens which indicated that Mr. Mullens 

had been "crushed" by a. heavy piece of equipment and was 

unconscious. I believe the doctor ~cted out of an abundance of 

caution, and he agreed that helicoptec assistance was necessary 

to expedite Mr. Mullens' tran~Eec to a hospital which had the 

capability for further treatment and diagnosls of Mr. Mullens' 

injuries. Mr. Bauer testified that he made no inquiry as to 

838 
why Mr. Mullens was being taken to another hospital by helicopter because it was not uncommon to transfer patients out of 

Braxton County by helicopter, and I find his testimony in this 

regard to be credible and plausible. Further, I find no 

credible evidence to establish that Mr. Bauer was aware of the 

doctor's concern that Mr. Mullens may have sustained internal 

injuries or a ruptured spleen, nor do I find any credible evidence to support any conclusion that Mr. Bauer was aware of the 

details concerning the doctor's diagnosis of Mr. Mullens' suspected injuries. MSHA's assertions and transcript references 

at page 11 of its brief that the respondent's witnesses 

"recognized that the existence of internal injuries is life 

threatening" are taken out of context. Although Mr. Bauer 

admitted as much at (Tr. 180), he specifically qualified his 

answer by stating that he had no factual knowledge that 

Mr. Mullens had sustained internal injuries at the time he was 

at the hospital. 

On the facts of this case, and notwithstanding Inspector 

Herndon's denials to the contrary, I believe that he formed an 

initial opinion that the accident posed a reasonable potential 

for death, and was thus required to be reported immediately, 

because he considered the accident to be "serious" in that it 

involved an incident where a miner was pinned against the rib 

by a continuous-mining machine. I also believe that 

Mr. Herndon relied on his past experience in which incidents 

of this kind have resulted in the deaths of the accident 

victims. 

Although Mr. Herndon asserted that he issued the citation 

on the basis of certain medical information given to him by the 

Y1itnesses who were interviewed durin·:;J the investigation, the 

report is devoid of any statements or conclusions that 

Mr. Mullens' injuries were life threatening, or posed a reasonable potential for death, and at page 3 of the report, (exhibit 

P-6), Mr. Herndon states "Because the operator failed to notify 

MSHA immediately of this serious accident, a citation was 

issued for a violation of 30 C.F.R. § 50.10.·" Mr. Herndon conceded that no attempts were made to interview the hospital 

doctors, or to review the hospital records with respect to 

Mr. Mullens' injuries, and in my view the report is not particularly reliable. For example, at page 2, the report states 

that Mr. Mullens was transferred to the west Virginia 

University Hospit~l by ambulance, wh~n in fact he was transported there by helicopter. 

Having viewed Mr. Bauer and Mr. McCormack during their 

testimony, they impressed me as credible and strai9·htforward 

839 
witnesses, and I give credence to Mr. Bauer's consistent testimony, as corroborated by Mr. McCormack, that Dr. Bordonada 

informed him that Mr. Mullens' injuries were not life threatening. I find Mr. Bauer's testimony regarding his two conversations with Dr. Bordonada to be believable and plausible, and 

while I have no reason to believe that the doctor was not 

telling the truth, I simply find his testimony to be too equivocal to support any conclusion that the conversations did not 

take place. Although Dr. Bordonada's medical opinion, 

expressed at the hearing after his review of his prior notations and the hospital records, that Mr. Mullens' injuries had 

a reasonable potential to cause death at the time the doctor 

treated him, is unrebutted, I find no credible or probative 

evidence to support any finding that this opinion was communicated to Mr. Bauer, Mr. McCormack, or anyone else in mine 

management, after Mr. Mullens was taken to the hospital. 'Nor 

do I find any credible or probative evidence to establish that 

anyone in mine management had any reasonable ba~is ~or believing that Mr. Mullens' injuries posed a reasonable potential 

for death. Lacking any such knowledge, I further find no basis 

for concluding that the respondent had a duty to immediately 

report the accident while Mr. Mullens was at the Braxton 

Hospital emergency room awaiting transportation to another 

hospital, or that its failure to do so was imprudent or 

unreasonable in the circumstances. Accordingly, I conclude 

and find that a violation ha~ not been established, and the 

citation IS VACATED. 

Bact of Violation - 30 C.F.R. § 50.12 

Citation No. 2944552, charges the respondent with 

altering the accident scene by continuing mining operations 

after Mr. Mullens' was removed from the mine and taken to the 

hospital. The cited mandatory standard section 50.12 provides 

as follows: 

Unless granted permission by a MSHA 

District Manager or Subdistrict Manager~ no 

operator may alter an accident site or an 

accident related area until completion of all 

investigations pertaining to the accident 

except to the extent necessary to rescue or 

recover an individual, prevent or eliminate an 

imminent danger, or prevent destruction of 

mining equipment. · 

In view of my findings and conclusions that the respondent had 

no duty to immediately i:-eport the accident in question, I find 

no basis for concluding that it had a duty to maintain the 

840 
status quo at the accident scene. Accordingly, I find no 

basis for concluding that the respondent violated the cited 

standard, and the citation IS VACATED. 

ORDER 

In view of the aforesaid findings and conclusions, the 

contested section 104(a) Citation Nos. 2944551 and 2944552, 

A'RE VACATED, and the petitioner's proposals for assessment of 

civil penalties for the alleged violations in question are 

DENIED AND DISMISSED. . . 

org ~. 

I~ Koutras 

dministrative Law Judge 

Distribution: 

Susan M. Jordan, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

w. T. Weber, Jr., Esq., 208 Main Avenue, Weston, WV 26452 

(Certified Mail) 

/f b 

841 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FALKIRK MINING COMPANY, 

Respondent 

Before: Judge Cetti 

MAY 5 1989 

. . 

. . 

. . 

. . 

. . 

: 

. . 

. . 

CIVIL PENALTY PRCX::EEDING 

Docket No. CENT 88-63 

A.C. No. 32-00491-03506 

Falkirk Mine 

DECISION 

This case is before me upon petition for civil penalty filed 

by the Secretary of Labor pursuant to Section 105(d) of the 

Federal Mine safety and Health Act of 1977, 30. u.s.c. S 801 et 

seq., the "Act", charging the Falkirk Mining Company (Falkirk) 

with 1 violation of the regulatory standard at 30 C.F.R. 

S 50.20(a) for the failure to report an alleged occupation injury 

to the Federal Mine Safety and Health Administration (MSHA). 

On April 16, 1987, MSHA inspector Iszler issued Citation No. 

2831514 to Falkirk at its mine in Underwood, North Dakota. The 

citation charges that Falkirk failed to report an occupational' 

injury of one its employees, Ronald s. Weisenberger, in violation 

of 30 C.F.R. § 50.20(a). 

The citation charges as follows: 

Records indicate this mine did not report to MSHA an 

occupational injury on form 7000-1. Mr. Ronald Weisenberger received a job related back injury on 6/16/86, saw 

a chiropractor on the 17th but did not return to work on 

the 18th. He took vacation time on ~/ 18, 19·, 20, 23, 24 

and returned to work on the 25th. Mr. Doug Herper with 

MSHA Education and ~raining performing the audit has indicated a violation of Section 50.20(a) exists. It is 

suggested form 7000-1 for this incident be completed and 

mailed to MSHA as required. 

The violation was terminated by Falkirk reporting the 

alleged occupational injury on Form 7000-1 which it mailed to 

MSHA "under protest". 

842 
Pursuant to agreement of the parties the case was submitted 

on a stipulation of facts and briefs. The parties filed the 

following stipulation of facts: 

The parties, by and through their undersigned counsel, do 

hereby stipulate to the following as relevant facts that may be 

accepted as being true and verified: 

STIPULATION OF FACTS 

1. Ronald s. Weisenberger ("Weisenberger") is employed by 

the Falkirk Mining Company at its Falkirk Mine in Underwood, 

North Dakota as a Utility Person and has held this position 

since January 2, 1980. 

2. On June 16, 1986, at approximately 7:22 a.m., 

Weisenberger strained his lower back while helping to 

install a one-ton overhead crane on the ceiling of a 

building at the Falkirk Mine. 

3. Weisenberger completed his shift, which ended at 8:00 

a.m. 

4. After completing his shift, Weisenberger went home and 

slept until about 6:00 p.m. When he got up, his back was 

stiff~ so, he went to see a chiropractor, Dr. Lester, who 

is located in Bismarck. · 

5. The procedure performed by Dr. Lester did not help 

Weisenberger's back. In fact, the procedure made his back 

sorer than it was before. As a consequence, Weisenberger 

went to see a medical doctor, Dr. Johnson, at the Quain and 

Ramstad Clinic in Underwood, North Dakota. Dr. Johnson said 

Weisenberger had pulled a muscle in his lower back ·and 

prescribed a pain reliever and muscle relaxants but did not 

place any restrictions on Weisenberger's ability to work. 

6. Before Weisenberger saw Dr. Lester, he could have worked 

on June 17 and 18, 1986 and performed his normal job duties. 

After Weisenberger saw Dr. Lester, he might not have been 

able to perform all of his normal job duties on those days. 

7. Prior to June 16, 1986, Weisenberger scheduled 

vacation on June 19 through 24, 1986. 

843 
8. On June 16, 1986, Weisenberger asked and was given 

permission to take June 17 and 18, 1986, as vacation days, 

because his sister, who lives in Portland, Oregon, was 

coming to town, and because he wanted to attend the jubilee 

festival in Tuttle, North Dakota. 

9. Attached hereto as Exhibit 1 and made a part hereof is 

a true and correct copy of the instructions for the Mine 

Accident, Injury and Illness Report -- MSHA Form 7000-1 

which are still in use. 

10. Prior to December, 1986 neither the Federal Mine Safety 

and Health Administration nor the Federal Mine Enforcement 

and Safety Administration published any document which 

interpreted "medical treatment" as used 30 CFR Part 50 to 

include chiropractic. 

11. Attached hereto as Exhibit 2 and made a part hereof is 

a copy of Citation No. 2831514 which was issued by MSHA to 

the Falkirk Mining Company on April 16, 1987. 

12. Attached hereto as Exhibit 3 and made a part hereof is 

a true and correct copy of the Conference Worksheet prepared 

by J.W. Ferguson of MSHA in connection with the .incident 

in controversy. 

DISCUSSION 

30 C.F.R § 50.20Ca) requires that an operator report an 

occupational injury to MSHA within ClO) working days after the 

occupational injury occurs. The regulations specifies that the 

operator is to use MSHA's Form 7000-1 in making such reports. 

"Occupational Injuries" is defined in 30 C.F.R. § 50.20Ca> 

as follows: 

••• any injury to a miner which occurs at a mine for which 

medical treatment is administered, or which results in 

death or loss of consciousness, inability to perform all 

job duties on any day after an injury, temporary assignment 

to other job duties, or transferred to another job. 

In this this case it is undisputed that Falkirk's employee 

on June 16, 1986 strained his lower back while helping to install 

a one-ton over head crane on the ceiling of a mine building 

approximately 30 minutes before he completed his midnight shift. 

He went home slept all day until he awoke with a stiff back. His 

stiff back was sore and painful so he went to see a chiropractor 

'for tr~atment that would give him relief. When the chiropractor's treatment did not give him the relief he needed 

844 
(actually made his back sorer) he went to see a medical doctor, 

Dr. Johnson, at the Quain and Ramstad Clinic in Underwood, North 

Dakota. Dr. Johnson diagnosed his back condition as a pulled 

muscle in his lower back and administered medical treatment 

consisting of a prescribed pain reliever and muscle relaxants. 

The most reasonable inference to be drawn from the 

stipulated facts is that the injured employee sustained injuries 

of his lower back consisting of a pulled muscle. After sleeping 

all day his injured back was so· stiff and sore he went to see a 

chiropractor to obtain relief and when the chiropractor's 

treatment did not produce the desired relief he was still in need 

of treatment that would give his back relief. He obtained treatment from the medical doctor because his need for treatment of 

the condition that resulted from the original injury as well as 

any relief that may have been desirable from the increased pain 

caused by the chiropractor's treatment. 

I am therefore satisfied from the evidence presented and 

the reasonable inferences to be drawn from the established facts 

that we have in this case a miner who sustained an on the job 

injury at a mine for which medical treatment was administered. 

The injury wa~ not reported within the required time. Consequently I find there was a violation of 30 C.F.R § 50.20(a) as 

alleged in Citation No. 2831514. 

When the parties file their stipulated facts they attached 

as part of the record three exhibits. Exhibit 1 which is discussed in stipulation No. 9, is a copy of the form and instructions for the Mine Accident, Injury and Illness Report 

--MSHA Form 7000-1. This form was in use at the time of Mr. 

Weisenberger's June 16, 1986 back strain. Exhibit 2 is a copy of 

Citation No. 2831514 which is the citation in question and 

Exhibit 3 which is a copy of the conference worksheet prepared by 

J.W. Ferguson of MSHA in connection with the incident and 

citation in controversy. 

With respect to Exhibit 3 the Solicitor in his brief points 

out that the belief or opinions of investigators and supervisors 

held, at various points in time, on the subject of whether the 

violation did or did not exist, are not relevant nor are they 

reasonably calculated to lead to admissible evidence under Rule 

2060 of the Federal Rules of Civil Procedure. · 

This principal has been enunciated by the Courts in a number 

of decisions. For example, in United States v. AT&T, 524 F.Supp. 

1381 (D.C. 1981), the defendants wished to buttress the 

proposition that they acted reasonably, in light of FCC decisions 

and policies, by eliciting the testimony of the Commissioners. 

The Court denied them the opportunity, stating: 

845 
"Extrinsic evidence as to how and why the FCC reached its 

decisions and what it intended thereby - either by Commissioner's speaking in their individual capacities or by 

employees of the FCC - are irrelevant to the question 

whether defendants' compliance was reasonable." 

ID. at 1387 (emphasis added). 

The Court noted that "[i]t is likewise clear that inquiry 

into such matters would not yield relevant evidence," and that 

"it makes no difference - it is not relevant - what a particular 

Commissioner or staff member might say today about what he 

understood a particular decision to mean". 

Similarly, in SEC v. National Student Marketing Corp., 68 

F.R.D. 157, 160 (D.D.C. 1975), aff'd 538 F.2d 404 (D.C. Cir. 

1976). cert. denied 429 U.S. 1073 (1977), defendants sought 

various internal documents in order to explore the "intent, 

reason, and motive" behind any agency memorandum. The Court· 

found that "[nJone of the requested documents is relevant", 

stating: 

"The intent [or purpose] of a governmental agency ••• is 

a rather limited concept which cannot be determined from 

a random search of documents authored by agency staff or 

individual [officials] ••• while [officials] may in fact 

respect the staff's recommendations, they are not bound 

by them nor do such recommendations reflect the position . of the agency as a whole. The great bulk of the documents 

requested by defendants... consist, with a few exceptions .. of memoranda among individual [agency officials], their 

legal assistants, and the [agency] staff. Therefore they 

are of little, if any, value and cannot be considered an 

official expression of the will and the intent of the 

[agency]." 

In yet another action the plaintiff requested Federal Power 

Commission staff memoranda in various matters as to which 

plaintiff claimed that the Commission favored its legal position. 

The Court of Appeals for the Second Circuit denied disclosure, 

"because the views of individual members of the Commission's 

staff are ~ legally germane, either individually or 

collectively to the actual making final orders. They could be 

grossly misleading, when applied to the ultimate findings and 

conclusions reached by the FCC as a· whole, because at best 

theyare only advisory in character. International Paper Co. v. 

Federal Power Commission, 438 F.2d 1349, 1358 (2d cir.> cert 

denied, 404 U .s. 827 < 1971 > (emphasis added). · -

Here, as in the cited cases, an internal document reflecting 

a staff person's.proposals, analyses, recommendations, and 

846 
conclusions have no value on the issue before me. The fact is 

that MSHA issued Citation No. 2831514 alleging a violation and 

has not retreated from its contention. 

I have considered the statutory criteria set forth in 

Section llOCi) of the Act for determining the appropriate penalty 

for this violation. Under the facts and circumstances stipulated 

by the parties I find that the $20 penalty proposed by the Secretary is the appropriate penalty for the violation. 

This decision wa.s decided, written and issued on the 

stipulated facts submitted for decision by the parties. Before 

issuing the Decision I served a copy of my proposed decision on 

the parties on April 19, 1989, with a notice of intention to 

issue the decision unless the parties within ten days showed good 

cause in writing why the Decision should not be issued. The only 

response has been a motion filed April 26, 1989 to approve a 

settlement in the amount of $20.00. Neither the proposed settlement nor any other writing filed by the parties shows any good 

reason or cause why the decision should not be issued. Therefore 

the decision is issued and the proposed settlement disapproved. 

ORDER 

Citation No. 2831514 is affirmed. Falkirk Mining Company is 

directed to pay a civil penalty of $20.00 within 30 days of the 

date of this decision. 

Distribution:· 

Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department 

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

80294 (Certified Mail) 

Andrew S. Good, Esq., 12800 Shaker Boulevard, Cleveland, OH 

44120 (Certified Mail) 

/bls 

847 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 8 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

A. H. SMITH STONE COMPANY, 

Respondent 

. . 

. . 

: 

Docket No. VA 89-13-M 

A.C. No. 44-02965-05517 

: Louisa Plant 

. . 

DECISION 

Appearances: Jack E. Strausman, Esq., Office of the 

So1icitor, u~s. Department of Labor, for Petitioner~ 

Ms. Lisa Wolff, Director of Safety/Governmental 

Affairs, A. H. Smith Stone Co., for Respondent. 

Before: Judge Fauver 

This case was brought by· the Secretary of Labor for a 

civil penalty for an alleged violation of a safety standard, 

under § llOCa>. of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801 et seq. 1 

At the conclusion of the hearing, oral arguments were 

heard and a bench decision was issued. This decision 

confirms the bench decision and assesses a civil penalty for 

the violation found. 

A preponderance of the substantial, reliable, and 

probative evidence establishes the following 'Findings of Fact 

and additional findings in the Discussion that follows. 

FINDINGS OF FACT 

1. The parties have stipulated that Respondent's Louisa 

Plant is subject to the jurisdiction of the Act, and that the 

judge has jurisdiction over this proceeding. 

2. On July 19, 1988, Respondent operated a Terex 

front-end loader without an operable backup alarm. This 

equipment is a large, heavy duty vehicle that has an 

obstructed view to the rear. 

848 
3. The vehicle was equipped with a backup alarm which 

had been defective for about two weeks before July 19, 1988. 

4. Federal Mine Inspector Charles E. Rines observed the 

defective equipment on July 19, 1988, and, at 10:15 a.m., 

issued a citation charging a violation of 30 C.F.R. § 56.9087. 

The inspector delivered the citation to 'Respondent's 

supervisor, Clifford Ketts. The citation gave Respondent 

until 7:00 a.m. the next day to .abate the cited 

condition. 

5. The following morning, after 7:00 a.m., the 

inspector inspected the loader and found that the backup 

alarm was not repaired. He waited for Clifford Ketts to 

arrive, and about 9:00 a.m., he told Mr. Ketts that the 

backup alarm had not been repaired, and that it must be 

repaired by 7:00 a.m. the next day. Mr. Ketts said he would 

take care of it. 

6. The next morning, July 21, the inspector observed 

that the backup alarm had still not been repaired. At 9:30 

a.m., he issued a § 104Cb) order forbidding use of the loader 

-until the violation was abated. The inspector remained at 

the Louisa Plant the rest of the day. 

7. He returned to the plant the next morning, Friday, 

July 22, 1988, to check on another matter involving a 

plant-wide withdrawal order that had been issued forbiddin~ 

all production. operations until abatement of other cited 

conditions. While the inspector was at the plant, Mr. Ketts 

told him a mechanic was on the way from Richmond, Virginia, 

to repair the backup alarm. By the time the inspector left 

the plant, several hours later, the mechanic had still not 

arrived although the Louisa Plant is only about 50 miles from 

'Richmond. 

8. The following Monday, July 25, 1988 ,· the inspector 

inspected the backup alarm and found that it had been 

repaired. He therefore issued a termination of the citation 

and its related order. 

DISCUSSION WITH FURTHER FINDINGS 

The Terex loader was operated wit~out an operable backup 

alarm for two weeks before Citation 3045446 was issued. The 

violation was easy to detect and should have been corrected 

long before the inspector inspected the equipment on July 19, 

1988. I find that the facts support the inspector's finding 

of high negligence. 

849 
The loader was operated at the loading area where 

customers were on foot. Operating the loader without an 

operable backup alarm presented a high risk of serious 

injury, including a fatality. The facts thus support the 

inspector's finding of a significant and substantial 

violation. 

Respondent did not make a reasonable effort to abate the 

violation in the time allowed by the citation. The inspector 

was therefore justified in issuing a § 104Cb) order. 

Government Exhibits 4 and 5 are compliance printouts for 

two of Respondent's mining operations for 24 months before 

the citation. These show that, of a total of $3,732 in 

assessed civil penalties, Respondent is in arrears for $489 

for eight penalties 1/ that are not in litigation. 

Failure· to pay final-assessments (uncontested or no longer 

in litigation) is part of an operator's compliance history, 

one of the criteria to be considered is assessing a civil 

penalty under § llOCi> of the Act. ~espondent has submitted 

a letter stating that it is "missing paperwork" regaiding 

these assessments, and has requested duplicate copies from 

MSnA's Civil Penalty Compliance Office. If further states it 

will work to close these matters "as soon as possible." I 

will credit this representation of prompt future disposition 

of the outstanding assessments. 

In addition to the above final civil penalties, the 

Solicitor's letter of April 26, 1989, states that other civil 

penalties in the printouts are also final and overdue. These 

additional penalties are about $435. 

1/ The delinquent penalties, identified in the exhibits as 

"DLTR" (for Demand Letter), are as follows: · 

Citation 

2852078 

2852601 

2852602 

2852605 

2852606 

2852607 

2852608 

2852609 

850 

Civil Penalty 

$ 20.00 

50.00 

50.00 

105.00 

105.oo· 

119.00 

20.00 

20.00 

$489.00 
The record thus indicates that, of $3,732 in civil 

penalties shown on the printouts, penalties of about $925 are 

overdue and unpaid. 

At the hearing Respondent introduced a letter, "To Whom 

It May Concern," from two partners, stating that A. H. Smith 

Associates, Louisa, Virginia, has been "in net profit (loss) 

position" for fiscal years 1987 and 1988 and that payment of 

a $395 penalty will "adversely affect the company." I find 

that this statement, without the opportunity for the 

Secretary to cross examine the authors, and without a fuller 

showing of Respondent's financial condition, e.g., net worth, 

unincumbered assets, revenues, equity, and tax returns, fails 

to establish a financial hardship defense. Section llO(i) is 

concerned with the impact of a civil penalty "on the 

operator's ability to continue in business." Respondent's 

letter is insufficient to address this issue. 

Respondent, as a mining enterprise, is a large operator. 

Considering all of the criteria for a civil penalty in 

§ llO(i) of the A.ct, I find that a civil penalty of $395 is 

appropriate for the violation found herein. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over this proceeding. 

2. Respondent violated 30 C.F.R. § 56.9087 as charged 

in Citation 3045446. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citation 3045446 is AFPIRMED. 

2. Order 3045450 is AFFI&~ED. 

3. Respondent shall pay the above assessed civil 

penalty of $395 within 30 days of this Decision. 

U);~~ ::rM4t'MWilliam Fauver 

~dministrative Law Judge 

851 
Distribution: 

Jack B. Strausman, Esq.,Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

Ms. Lisa Wolff, Director of Safety/Governmental Affairs, 

A. H. Smith Stone Co., 9101 Railroad Avenue, Branchville, MD 

20740 (Certified Mail) 

iz 

852 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAY 8 1989 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . 

: Docket No. WEST 88-337-M 

: A.C. No. 05-03295-05514 

v. 

. . 

: Wolf Pit No. 1 and Plant . . COLORADO SILICA SAND, INC., 

Respondent 

. . 

: 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor 

U.S. Department of Labor, Denver, Colorado 

for the Petitioner1 

Mr. Lennart T. Erickson II, Vice-President, 

Colorado Silica Sand, Inc., Colorado Springs, 

ColoJ:'.ado, pro ~· 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration (MSHA), charges respondent with violating 

a safety regulation promulgated under the Federal Mine Safety 

and Health Actr 30 u.s.c. S 801 ~seq., (the Act>. 

After notice to the parties a hearing on the merits was held 

in Denver, Colorado on April 25, 1989. 

The parties waived their right to file post-trial briefs, 

submitted their cases on oral arguments, and further waived 

receipt of the transcript and requested an expedited decision. 

summary of the Case 

Citation No. 3065071 charges respondent with vi.elating 

30 C.F.R. S 56.14006, which provides as follows: 

S 56.14006 Placement of guards during 

during machinery operation. 

Except when testing the machinery, 

guards shall be securely in place while 

machinery is being operated. 

853 
Stipulation 

At the commencement of the hearing the parties stipulated 

as follows: 

1. The operator has 13 miners working two shifts1 the 

company is a medium-sized operator. 

2. The imposition of a civil penalty will not impair the 

company's ability to continue in business. 

3. Abatement was rapidly accomplished in this case. 

secretary's Evidence 

ARNOLD B. KERBER, an MSHA inspector, is a person experienced in mining and mine safety. He has been an inspector for 

approximately 15 years. 

The witness is familiar with the Wolf Pit No. 1-mine 

located in El Paso County, Colorado. Both the plant and pit 

are under MSHA's jurisdiction. 

The company uses front-end loaders to remove silica sand· 

from a hillside deposit. From there it is trucked to the plant 

site where it is eventually fed into hoppers. 

On June 21, 1988, the inspector met Jack Wright, the 

superintendent of maintenance, at the work site. They toured 

the plant looking for any unsafe.conditions. 

At the plant the silica sand is conveyed by a brown crossover belt conveyor. The conveyor transfers the sand between 

storage bins1 it is transported from the north side to the south 

side of the plant. The belt conveyor is 36 feet long1 the belt 

itself is 24 inches wide. · 

The conveyor runs continually except when it is.shut down. 

On June 21, 1988, the inspector observed the guard at the 

head pulley of the conveyor lying on the ground. The conveyor is 

usually completely covered. However, on this occasion there was 

no guard at the head pulley where the belt meets the top roller. 

The exposed area was 18 inches by 12 inches. 

854 
The opening itself was 48 inches above the ground and if 

a person fell he could become 'entangled with the head pulley. 

If this occurred it would be possible to suffer the loss of an 

arm. In addition, there was quite a bit of silica sand spillage 

in the area; sand of this type can be slippery and walking in it 

can be difficult. 

On the day of the inspection the belt was not being tested; 

further, company representative Wright did not claim it was being 

tested. 

There was a regular track where workers travel near this 

area and the missing guard was in plain view. 

On the day the citation was issued the conveyor had been 

operating and there was materiql on the belt. 

The inspector learned that three employees had come in 

at 5:00 a.m. and the balance of the employees had come in at 

about 8:00 a.m. when the regular shift begins. The citation 

was written at approximately 11:00 a.m. It was terminated the 

next day when the inspector returned to the site. At that time 

the guard was back in place. 

During the balance of the day the inspector reviewed the 

records that MSHA requires the company to keep. On June 22, 

1988, the following day, he tested employees «for silica as well 

as noise exposure. On June 23 he was there for a short time 

for a close-out conference. 

When conducting the inspection it was windy. Dust and sand 

reduced visibility in the area. 

The guards of the conveyor themselves were corrugated metal 

and usually connected to the conveyor. (See Exhibits R-1, R~2, 

R-3, R-5). The inspector did not learn who had removed the 

guard. 

In cross-examination the inspector indicated he has received good cooperation from the company. He had also inspected 

the company in March 1987. He had previously asked the company 

to move a guard about 6 inches forward; he had also issued a 

citation for that condition. However, there had been no conversation about the particular head pulley that resulted in the 

instant citation. 

855 
The company was operating the plant because the inspector 

would not have written the citation as S & S unless the plant 

was operating. A good portion of the inspector's activities 

concentrate on pointing out exposed pinch points to the company 

representatives. 

Operator's Evidence 

LENNART T. ERICKSON, II is a Vice-President of the company 

in charge of finance and administration. 

The particular silica mined by the company is harder and 

rounder than a river run. The company's silica, a dune deposit, 

runs about 95 percent silica sandi a river run is approximately 

65 percent. 

Mr. Erickson was not present when Inspector Kerber issued 

his citation. However, his duties require that he inyestigate 

all MSHA citations. In connection with this citation he talked 

to Dale Correll (plant superintendent), Jim Wright (maintenance 

supervisor), and Bill Hoss (mechanic). 

These three men are no longer with the company and they 

told him that they were to fasten the guard covers. This could 

only be accomplished by a tack weld. Mr. Erickson also learned 

from investigation that the previous night the conveyor guard 

had blown off. The morning of the investigation it was to be 

replaced and welded. 

In addition, the conveyor was not in operation. 

The company tries to follow MSHA's rules and regulations. 

On cross-examination, the witness agreed that it had been 

some months before, at a prior inspection, when they had been 

told by the inspector to move a guard forward. 

Company employee Correll told Mr. Erickson the plant was 

not operating at the time of the inspection nor had the conveyor 

been running that day. The plant can be in operation without 

the conveyor operating. The conveyor runs about 50 percent of 

the time. , 

The normal shift of the company starts about 8:00 a.m. 

The company's position that the conveyor was not in operation is set forth in the company's letter dated December 15, 

1988, which is in its answer filed in the case. 

856 
Discussion 

A credibility issue arises here as to whether the plant 

was operating at the time of the inspection. On this issue I 

credit the inspector's testimony: the citation was issued about 

11:00 a.m. when the full work force of thirteen workers was on 

the site. I reject the operator's contrary evidence which is 

admittedly hearsay with only minimal foundation. ·· 

The regulation involved here requires that a guard shall 

be securely in place "while machinery is being operated." 

The credible evidence establishes that the conveyor at the head 

pulley was not in place. In fact, it was lying on the ground. 

The inspector indicated that the conveyor was not being tested 

and the company representative accompanying him did not claim 

that any such test was taking place. 

The credible evidence in the case establishes that 

the conveyor was neither conveying material nor moving at 

the time the citation was issued. However, I infer the conveyor was nevertheless "being operated" as that term is.used 

in§ 56.14006. It is apparent that the conveyor supplies 

silica to the plant about 50 percent of the time. Since the 

plant itself was operating I infer the conveyor was also 

being operated. To like effect, ~ Freeport Kaolin Company, 

2 FMSHRC 233, 250, 251 (1980) (Cook, J), and The Hanna Mining 

Company, 2 FMSHRC 1446, 1453 (1980) (Broderick, J). 

On the uncontroverted credible evidence it appears that 

a violation of § 56.14006 existed. 

At best, the company's defense is that the wind had 

blown the guard off of the conveyor and that the company had 

three hours to find and remedy this condition. The company's 

defense cannot prevail. The fact that it had only three 

hours to find and remedy the defective condition relates to 

the company's negligence and not as to whether a violation 

occurred. Negligence is a factor to be considered in the 

imposition of a civil penalty. 

· Since the uncontroverted evidence shows the guard was not 

in place and the conveyor was in operation, a violation occurred 

and Citation No. 3065071 should be affirmed. 

857 
Civil Penalty 

The statutory criteria to assess civil penalties is contained in section llOCi> of the Act. 

The evidence shows that for the two years ending June 20, 

1988, the operator was assessed for 29 violations of safety 

regulations. (Exhibit P-1). 

The stipulatio~ of the parties indicates the company is 

a medium-sized operator. The company's negligence must be 

considered low in that it had a relatively short period of 

time to discover and correct this violative condition. The 

stipulation indicates that payment of a penalty will not cause 

the operator to discontinue its business. The gravity of the. 

violation is high since a miner could be severely injured if 

he became entangled with the exposed pinch point. The operator 

is entitled to its statutory credit for good faith since it 

rapidly abated the violative condition. 

On balance, I deem that a civil penalty of $40 is appropriate. 

ORDER 

Based on the foregoing finding of fact and conclusions of 

law I hereby enter the following order: 

Citation No. 3065071 is affirmed and a penalty of $40 is 

assessed. 

Law Judge 

Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) · 

Mr. Lennart T. Erickson II, Vice-President, Finance & Administration, Colorado Silica Sand, Inc., 3250 Drennan Industrial 

Loop, P.O. Box 15615, Colorado Springs, CO 80935 (Certified 

Mail) 

/ot 

858 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 9 1989 

OZARK-MAHONING COMPANY, 

Contestant 

: CONTEST PROCEEDING . . v. 

SECRE'rARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

OZARK-MAHONING ·COMPANY, 

Respondent 

Docket No. LAKE 88-128-RM 

: Citation No. 3260151; 3/4/88 

: Annabel Lee Mine 

: Mine ID 11-02780 

. 

. 

: CIVIL PENALTY PROCEEDING 

. . 

Docket No. LAKE 88-108-M 

A.C. No. 11-02780-05507 

Annabel Lee Mine 

DECISION 

AND 

ORDER OF DISMISSAL 

Appearances: 

Before: 

Victor Evans, General Manager, Ozark-Mahoning 

Company, Rosiclare, Indiana, for the 

Contestant/Respondent; 

Miguel J. Carmona, Esq., Office of the 

Solicitor, U.S. Department of Labor, Chicago, 

Illinois, for the Respondent/Petitioner. 

Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern a proposal for 

assessment of civil penalty initiated by the petitioner (MSHA) 

against the Ozark-Mahoning Company (hereinafter respondent), 

pursuant to section llOCa> of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 820(a), seeking a civil penalty 

assessment in the amount of $74 for an alleged violation of 

mandatory safety standard 30 C.F.R. § 57.12015, (Docket No. 

LAKE 88-108-M). Docket No. LAKE 88-128-RM, concerns a separate 

859 
contest filed by the Ozark-Mahoning Company challenging the 

validity of the citation. 

A hearing was convened in Evansville, Indiana, and the 

parties appeared and participated fully therein. The parties 

waived the filing of written posthearing arguments. However, 

they were afforded an opportunity to present oral arguments at 

the conclusion of all testimony, and I have considered the 

arguments in the course of my adjudication of this matter. 

Issues 

The issues presented in these proceedings are Cl) whether 

the conditions or practices cited by the inspector constituted 

a violation of the cited mandatory safety standard, (2) the 

appropriate civil penalty assessment to be made for the violation taking into account the civil penalty assessment criteria 

found in section llOCi) of the Act, and (3) whether the violation was "significant and substantial." Additional issues 

~aised by the parties are identified and disposed of in the 

course of this decision. 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Section llOCi> of the 1977 Act, 30 u.s.c. § 820Ci). 

Stipulations 

The parties stipulated to the following (Joint exhibit 1): 

1. The mine involved in this case is subject to the jurisdiction of the Federal Mine 

Safety and Health Act of 1977. 

2 .. The administrative law judge assigned 

to this case has jurisdiction in this matter. 

3. The MSHA inspector who issued the 

citation involved in this case was a duly 

authocized representative of the Secretary of 

Labor at all times relevant to this matter. 

4. From March 4, 1986 through March 4, 

1988, respondent committed three (3) MSHA 

violations at its Annabel Lee Mine. 

86Q 
5. During the calendar year preceding the 

issuance of the citation involved in this case 

the operator accumulated a total of 55,837 hours 

of work at its Annabel Lee Mine. 

6. During the calendar year preceding the 

issuance of the Citation involved in this case 

the Ozark-Mahoning Company accumulated a total 

of 232,648 hours of work at all the mines under 

its control. 

7. The Ozark-Mahoning Company demonstrated 

its good faith by abating the condition involved 

in the Citation in this case within the time 

granted by the MSHA inspector. 

8. Payment of the penalty assessed for 

the citation involved in this case will not 

affect the mine operator's ability to remain in 

business. 

Discussion 

The section 104Ca) "S&S" Citation No. 3260151, in issue 

in these proceedings was issued on March 4, 1988, and it cites 

an alleged violation of mandatory safety standard 30 C.F.R. 

§ 57.12016, and the cited condition or practice states as 

follows: 

An employee was observed working in the 

skip under the man cage in the main hoist shaft 

without de-energizing the power for the hoist 

and locking the switch out. The hoist operator 

was sitting at the hoist controls. 

Petitioner's Testimony and Evidence 

MSHA Inspector Gene Upton, testified as to his experience 

and training, and he confirmed that he inspected the mine on 

March 4, 1988, and issued the citation in question (exhibit 

P-1). Mr. Upton confirmed that he issued the citation after 

observing work being performed inside the skip bucket located 

beneath the man cage used to carry men up and down the mine 

shaft. The bucket is used to transport ore from the mine. 

Since the hoisting electrical system was energized and not 

locked out as required by section 57.12016, he issued the 

violation. 

861 
Mr. Upton agreed that the skip bucket was approximately 

4 feet high and that it moved up and down the shaft with the 

man cage. He stated that the individual inside the bucket was 

performing some metal patch work at the bottom of the skip 

using welding and acetylene torch equipment, as well as other 

tools. He considered the work being performed as "mechanical 

work" within the meaning of the standard. The individual 

performing the work was being assisted by another individual 

who was outside the cage, and he was being used to bring 

supplies to the area where the work was being performed. 

Mr. Upton stated that the control booth which contained 

the controls for operating the hoist and skip was located 

approximately 200 feet away from the skip and that the hoist 

operator was at the controls while the work was being performed. Mr. Upton also stated that the main disconnect swi.tch 

which should have been used to deenergize the hoist was located 

outside of the control booth approximately 15 to 20 feet away. 

He found that the operator's hoist control switch located 

inside the control booth and the main disconnect switch were 

not deenergized and locked out. 

Mr. Upton stated that the failure to deenergize and lock 

out the hoist and skip presented a hazard in that in the event 

of any inadvertent movement move of the skip up or down the 

individual performing the work in the skip could have been 

"banged around" or suffered burns from the ·welding torch he 

was using, or he could have been entangled in the welding 

cables and hoses. He was also concerned that a mix-up in any 

signals between the hoist operator in the control room and the 

person doing the work in the skip may have caused the skip to 

move up or down since it ~as still energized, and if this 

occurred, the individual could fall out of the skip. If he 

did, it was reasonably likely that he would sustain injuries 

of a reasonably serious nature. He also believed that it was 

reasonably likely that in the event of any movement of the 

skip while the individual was inside performing work, the 

individual could be injured. 

Mr. Upton stated that he based his "significant and substantial" finding on the fact that the individual working 

inside the skip had to-rely on someone other than himself to 

signal the hoist oper~tor who was in the booth, and in the 

event of any mixed signals, it was reasonably likely that the 

hoist would have moved at any time. 

Mr. Upton confirmed that he made a negligence finding of 

"moderate" because the skip operator was at the controls holding the hoist-brake, and the respondent knew or should have 

862 
known that it was required to use its lock out procedures 

while the work was being performed inside the skip. He also 

confirmed that the violation was timely abated within 

10 minutes by shutting off and locking out the power switch 

and hoist controls. 

On cross-examination, Mr. Upton confirmed that his mining 

experience does not include any shaft work· or work as a skip 

operator or attendant. Upon review of the language found in 

section 57.12016, he stated that he was not familiar with the 

intent of the standard, and that other than deenergizing and 

locking out the hoist, he was not aware of any exceptions or 

"other measures" which would allow mechanical work to be 

performed without locking out the equipment. He confirmed 

that the hoist in question was not an "automatic" hoist, and 

that it required someone to manually and physically be present 

to operate and move it. 

Mr. Upton stated that he has inspected similar hoists in 

the past, and that such an inspection would include an examination of the drums, wire cables and ropes, head shafts and 

cables, upper and lower lines, the "dead man" braking switch, 

and all hoist controls. He confirmed that during the course 

of testing the hoist cables, wire ropes, and drums, he uses a 

guage which .requires him to touch the cables and ropes, and 

that the drums are turning. He confirmed that during these 

tests, the hoist is not deenergized or locked out because the 

hoist must be 1noved to facilitate the testing. However, 

someone is at the hoist controls while this is being done. 

Mr. Upton also confirmed that while inspecting the hoist shaft 

cables and guides, he needs to ride the skip and it is not 

deenergized or locked out. 

Mr. Upton confirmed that the hoist in question was 

equipped with two sets of brakes, a "dead-man" braking switch 

and device which is activated by foot pressure inside the 

hoist. The hoist can be energized if foot pressure is applied 

to this device, but as soon as the pressure is taken off, the 

hoist will deenergize. 

Mr. Upton also confirmed that the hoisting system included 

an emergency stop switch and a brake safety lever. ae agreed 

that in the event all of the aforementioned safety features 

provided for the hoisting system were activated and in use, if 

someone were to throw the main switch to the "on" position, the 

hoist should not move. He conceded that it was unlikely and 

unreasonable to expect that the hoist would move given the use 

of these devices. 

863 
Mr. Upton agreed that the skip was raised above the level 

of the shaft while the work was being performed, and that the 

individual performing the work inside the skip was not required 

to wear a safety belt or line. He agreed that the skip landing 

was provided with hand rails and that the hoistman who was at 

the skip controls had a fairly clear visible view of the 

individuai performing the work inside the skip. He also confirmed that pursuant to the hoisting procedures and MSHA's 

safety standards the individual at the hoist controls cannot 

move the hoist without an appropriate signal. 

Mr. Upton stated that it was his opinion that the failure 

to deenergize and lock out the hoist was inadvertent, and he 

asserted that when he spoke to the hoistman in the control 

booth the hoistman advised him that he was not comfortable 

being at the hoist controls without the main power swi"tch 

deenergized and locked out.· Mr. Upton also confirmed that the 

hoistman was not supervisirtg the work taking place_ in the 

skip, and that the decision not to deenergize and lock it out 

was apparently made by the individual supervising the work. 

Respondent's Testimony and Evidence 

Gary Austin respondent's maintenance supervisor, testified 

that he has worked for the respondent for 20 years, and that he 

is responsible for all of the mechanical maintenance work done 

on the hoist and skip. He confirmed that he has moved and 

re-installed the hoist on at least two occasions. He stated 

that the hoist is equipped with twd brakes capable of holding 

the hoist under a full load ~nd under full power. He also 

stated that the hoist is equipped with a dead man's switch 

which is activated by foot pressure on a button. This switch 

requires that the power be on in order to operate, and when the 

foot pressure is released, the brakes are automatically set. 

The hoist system also has a safety stop switch, and a regulator 

to control the air supplied braking systems. · 

Mr. Austin confirmed that he was in charge of the work 

being performed in the skip, and that the individual performing 

the work was installing a water seal on the bottom of the skip. 

He stated that this individual had full control of the work and 

the skip through the established signaling system, and that he 

was in the view of the hoist control operator. 

Mr. Austin stated that the hoist was not locked out 

because the hoist and skip needs to be moved during the course 

of any mechanical work, particularly when welding equipment 

and acetylene hoses are used. This move1nent is necessary so 

as to prevent the acetylene hoses from being caught, and to 

864 
provide a safe distance between the acetylene tanks and the 

individual performing the work. Requiring the hoist power to 

be locked out under these circumstances would be impractical, 

particularly when the individual doing the work is within the 

view of the hoist operator and proper signalling measures are 

being used. 

Mr. Austin stated that the brake handle purportedly being 

held by the hoistman was in fact a $mall lever approximately 5 

to 6 inches long which was engaged and locked out by means of 

a notch on the lever. The lever was located on the hoist operator's control panel, and he· was not required to physically 

hold any brake handle for the approximate 30 minutes it took 

to complete the work on the skip. 

·On cross-examination, Mr. Austin stated that the respondent does have equipment lock out procedures in effect but that 

it was his decision not to lock out the hoist in question 

because he did not believe it was necessary. He pointed out 

that mandatory safety standard section 57.14029, which requires 

the blocking of machinery to prevent movement and the turning 

off of the power before any work is performed, provides an 

exception where machinery motion is necessary to make 

adjustments. 

Mr. Austin confirmed that the hoisting system in question 

was not an automatic system which can be turned on and off 

automatically and inadvertently by someone out of sight of the 

individual performing any work on the hoist. 

Mr. Austin confirmed that he had the only hoist lock out 

key in his possession on the day in question, and in the event 

of any emergency underground, he would not want to be delayed 

by going to the main switch to turn the power back on. 

Although another hoist was available, it was diesel powered 

and slow, and the hoist in question would be the quickest way 

of travelling down the 1,000 foot shaft in the event of an 

emergency. 

Mr. Austin confirmed that at the time the work was being 

perEormed on the skip, the hoistman was at the controls and 

had a clear view of the individual doing the work. The hoist 

had a voice box and bell signalling device for signalling the 

hoistman, and the law prohibits the hoistman from starting or 

moving the hoist unless he receives a signal to do so by the 

person doing the work. 

865 
The parties waived the filing of written posthearing 

briefs, but were afforded an opportunity to present the following oral arguments in support of their respective positions. 

Petitioner's Argument 

Petitioner's counsel asserted that there is sufficient 

evidence which establishes that the work being performed on 

the electrically powered hoist was in fact mechanical work. 

He argued that the evidence clearly establishes that the 

appropriate lock out procedures were not followed while this 

work was being done, and that the hoist was energized and that 

the power switch was not shut off and locked out. 

Counsel asserted further that the inspector believed that 

the "other measures" provision referred to in the cited section 57.12016, did not apply in this case, and that the hazard 

presented concerned the possibility of a misunderstanding 

during the exchange of signals between the individual doing 

the work and the hoistman at the controls, and that in the 

event of such a misunderstanding, the individual doing the 

work would be exposed to the additional hazards testified to 

by the inspector. 

Respondent's Argument 

Respondent's representative argued that its evidence has 

established that the electrically powered hoisting system was 

provided with two braking systems consisting of a dead man's 

switch inside the hoist which automatically sets the brake 

when no one is in the hoist and is not applying any foot 

pressure to the activating switch, and an emergency stop 

switch and brake safety lever located in the control room 

which was locked out. He also pointed out that with all of 

these systems engaged and operational at the time the work was 

being performed on the hoist, and with the main power switch 

in the "off position," even if the hoistman were to leave the 

control booth for any reason, anyone deliberately or inadvertently turning the power on would not cause the hoist to move. 

Respondent's representative argued further that the 

second sentence of section 57.12016, contains an alternative, 

and an exception, to·the requirement that power switches be 

locked out, and that this alternative does not require any 

lock out of the hoist power switch as long as other measures 

are taken to prevent the hoist from being .energized without 

the knowledge of the individuals working on it. 

866 
Respondent's representative asserted that the unrebutted 

evidence and testimony adduced in this c~se establishes that 

the individual performing the work on the hoist skip with the 

assistance of a helper was within visual sight of the hoist 

control operator and that appropriate signals were available 

and in use, and the hoist operator was prohibited by law from 

moving the hoist unless given an appropriate signal from the 

individual performing the work. Since the individual performing the work w~s in complete control of the situation, and 

given the e}tistence of the aforementioned hoist braking and 

stopping devices which were clearly in place and operational, 

and which prevented any inadvertent movement of the hoist by 

someone engaging the hoist power switch without the knowledge 

of the individual performing the work in the skip, respondent's 

representative concluded that the other measures referred to in 

section 57.12016 were clearly present, and that under these 

circumstances, a violation has not been established. 

Respondent's representative also pointed out that Inspector Upton conceded that when he was required to inspect the 

hoist, skip, and shaft, the hoist was not locked out. Respondent also pointed out that pursuant to mandatory standard 

section 57.14029, repairs or maintenance on machinery may be 

performed without turning the power off and blocking the 

machinery against movement as long as movement is necessary to 

make adjustments. In the instant case, respondent's representative maintained that some movement of the hoist was required 

in order to facilitate the work being performed. 

Findings and Conclusioris 

Fact of Violation 

Section 104(a) "S&S" Citation No. 3260151, 30 C.F.R. 

§ 57.12016 

The respondent is charged with a violation of section 

57.12016, for failing to deenergize the power and locking out 

the power switch for the man cage skip in question while work 

was being performed on the equipment. The cited mandatory 

3afety standard in question provides as follows: 

Electrically powered equipment shall be 

deenergized before mechanical work is done on 

such equipment. Power switches shall be locked 

out or other measures taken which shall prevent 

the equipinent from being energized without the 

knowledge of the individuals working on it. 

Suitable warning notices shall be posted at the 

867 
power switch and signed by the individuals who 

are to do the work. Such locks or preventive 

devices shall be removed only by the persons 

who installed them or by authorized personnel. 

On the basis of the unrebutted credible testimony of the 

inspector, I conclude and find that the hoist in question was 

an electrically powered piece of equipment, that the skip 

bucket was an integral part of the hoist, and that the work 

being performed inside the bucket by the employee in question 

was mechanical work within the intent and meaning of the cited 

standard. I also conclude and find that the conditions cited 

by the inspector fall within the scope of the cited standard. 

The failure by a mine operator to deenergize electrically 

powered equipment and to lock out power switches before any 

mechanical work is done on the equipment has been consistently 

held to constitute a violation of mandatory safety standard 

30 C.F.R. § 57.12016, and the identical standa~d section 

56.12016, applicable to surface metal and nonmetal mines. 

See: MSHA v. Adams Stone Corporation, 7 FMSHRC 692, 706-707, 

(May 1985); MSHA v. FMC Corporation, 4 FMSHRC 1818, 1821-22 

(October 1982), petition for Commission review denied, 

November 16, 1982; MSHA v. Greenville Quarries, Incorporated, 

9 FMSHRC 1390, 1428 (August 1987). 

In the FMC Corporation ·case, supra, the operator argued 

that the power switch for the equi_pment being worked on was 

deenergized by the worker by using an "off" switch which was 

always in his view while he ~orked 4-1/2 feet away. Judge 

Morris rejected this defense, and found that simply turning 

the switch to the "off" position did not totally deenergize 

the unit being worked on and that the failure to deenergize 

the equipment established a violation. 

In North American Sand and Gravel Company, 2 FMSHRC 2017 

(July 1980), the judge affirmed a violation of section 

56.12016, after finding that a mine operator simply removed 

fuses when electrical equipment was down for repairs, and had 

no lock-out procedure to insure that anyone working on the 

equipment would not be injured by someone inadvertently .starting the equipment. Likewise, in Brown Brothers Sand Company, 

3 FMSHRC 734 (March 1981), a violation was affirmed where it 

was found that an employee working on a pump deenergized the 

equip1nent by opening the power "knife" switch, but failed to 

lock out the switch to prevent it from being energized without 

his knowledge. 

868 
In Price Construction Company, 7 FMSHRC 661 (May 1985), a 

welder with 25 years e~perience lost a leg when he was injured 

by the rollers of a crusher he was working on. The accident 

occurred when the plant foreman misunderstood the welder's 

instructions and engaged a switch which had not been locked 

·out and simply left in the "on" position. The plant superintendent admitted that he did not require padlocks to lock out 

roller switches, and the existing "lock-out" procedures were 

accomplished by merely turning off the generatQr and cutting 

the switches. The judge found a violation of section 56.12-16, 

and found that the company safety director admitted that he 

knew that a padlock had to be used on the roller switch to 

conform with the required lock-out procedures, and that it is a 

generally understood practice in the mining industry that a 

"lock-out" requires the use of a padlock. 

In my view, the primary intent of section 57.12016 is to 

insure that all electrically powered equipment is deenergized 

before it is worked on. This is accomplished by deenergizing, 

or shutting down, any main power switch that supplies power to 

the equipment. A secondary intent of the standard is to insure 

that the equipment is not inadvertently energized while the 

work is being performed by someone turning the power switch 

back on, and this is accomplished by requiring the physical 

locking out of the switch by an appropriate lockout device. In 

the case at hand, the inspector alluded to two hoist power 

switches, one of which was the main power switch located outside of the hoist operator's control room approximately 15 to 

20 feet away, and a second power switch located inside the room 

on the hoist control panel. Both switches were neither deenergized or locked out. 

Although I find some merit in the respondent's argument 

that the language found in the second sentence of section 

57.12016, provides for an alternative method of insuring 

against any inadvertent energizing of the equipment while it 

is being worked on, short of locking out the power switch, I 

believe that this language only comes into play once the 

requirements found in the first sentence for completely deenergi zing the equipment is complied with, and that any alternative 

"other measures" for insuring against the inadvertent energizing of the equipment while it is being worked on may be considered in mitigation of any hazard, but may not serve as a 

defense to the requirement found in the first sentence that all 

such equipment be initially deenergized. 

The respondent argues that it has not violated section 

57.12016, because it complied with the second sentence of the 

standard ·"Which it 11iews an exception to the require.nent that 

869 
power switches be locked out. This defense is rejected. The 

clear and unambiguous requirements of the first sentence of 

section 57.12016, mandates that electrically powered equipment 

be deenergized b~fore any mechanical work is done on the equipment. I find no exceptions in the first sentence, ·and the 

inspector's credible and unrebutted testimorty establishes that 

the hoist main power disconnect switch, which was located outside of the control room, and some 15 to 20 feet away from 

where the hoistman was located inside the booth, as well as a 

second power switch inside the room, were not deenergized or 

locked out during the time work was being performed on the 

hoist skip bucket. Under these circumstances, I conclude and 

find that the failure to deenergize and lock out these switches 

constitutes a violation of section 56.12016, and the citation 

IS AFFIRMED. 

The respondent's defense that mandatory safety standard 

30 C.F.R. § 57.14029, permits maintenance work to be performed 

without turning of the power and blocking machinery against 

movement is rejected. The respondent is not charged with a 

violation of section 57 .14029, and that standard mak.es no mentioned of electrically powered equipment, the language found 

in the cited section 57.12016. ' 

The respondent's assertion that Inspector Upton conceded 

that he did not deenergize or lock out the power when he conducts inspections of hoist equipment, is rejected as a defense 

to the citation. While this may be true, I find a distinction 

between an inspection of a hoist that necessarily requires 

movement of the equipment in order to determine whether it is 

functioning properly, and the welding work being performed in 

this case. Notwithstanding the respondent's practicality 

arguments to the contrary, I am not convinced that the welding 

work being performed on the hoist, which took approximately 

30 minutes to complete, required the movement of the hoist 

while the work was being performed. Further, insofar as the 

respondent's argument raises an inference of some form of 

estoppel, it is rejected. See: Emery Mining Corporation v. 

Secretary of Labor, 3 MSHC 1585 ClOth cir. 1984), affirming the 

Commission's decision in Secretary of Labor v. Emery Mining 

Corporation, 5 FMSHRC 1400 (August 1983). 

Significant and Substantial Violation 

A "significant and substantial" violation is described in 

section 104(d)(l) of the Mine ~ct as a violation "of such 

nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health 

hazard." 30.C.F.R. § 814Cd)(l). A violation is properly 

870 
designated significant and substantial "if, based upon the 

particular facts surrounding the violation there exists a 

reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature." 

Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 

1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant and substantial" as follows: 

In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National Gypsum the Secretacy 

of Labor must prove: Cl> the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of 

danger to safety-contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1129, the Commission stated further as follows: 

we have explained further that the third 

element of the Mathies formula "requires that 

the Secretary establish a reasonable likelihood 

that the hazard contributed to will result in 

an event in which there is an injury." U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance 

with the language of section 104(d)(l), it is 

the contribution of a violation to the cause 

and effect of a hazard that must be significant 

and substan.tial. U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. 

S't"ee1 Mining Company, Inc., 6 FMSHRC 1573, 

1574-75 (July 1984). 

The question of whether any particular violation is significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). 

871 
Maintenance Supervisor Gary Austin's credible and 

unrebutted testimony reflects that the hoist in question was 

equipped with several operational braking devices and safety 

mechanisms which precluded any inadvertent movement of the 

hoist, and that the hoist control operator was physically holding the brakes in place by hand. In fact, the brakes were 

locked out by a lever at the control panel where the hoist 

operator was stationed. Inspector Upton agreed that with all 

of these braking devices in use, it was unlikely and unreasonable to conclude that the hoist would move, even if the power 

switch were thrown to the "on" position. The hoist was not 

controlled "automatically," and someone would have to manual 

activate the controls to cause it to move (Tr. 23). 

Although Mr. Upton believed that the hazard presented by 

the violation involved a po~sible misunderstanding ln signals 

between the hoist operator and the individual doing the work 

inside the bucket, Mr. Austin's unrebutted testimony reflects 

that the hoist was equipped with a voice box and bell 

signalling devices for signalling the hoistman, and that the 

hoistman is prohibited from starting or moving the hoist without receiving an apptopriate signal. Inspector Upton confirmed 

that this was the case. 

Mr. Austin, an experienced maintenance supervisor with 

20 years of experience working for the respondent, including 

hoist removal and replacement work,· testified that the 

individual doing the work inside the hoist bucket had full 

control of the work he was performing through the established 

signaling system. Although Inspector Upton believed that the 

individual doing the work had to rely on a helper who was 

bringing him supplies to signal the hoistman, the evidence 

shows that the helper was within 5 feet of the work which was 

being performed, and Inspector Upton confirmed that the hoistman had a fairly clear visual view of the .hoist bucket at the 

time the work was being performed (Tr. 27-28). Neither the 

individual doing the work or his helper, or the hoist.man, 

testified in this case, and I find no evidence or testimony to 

support any conclusion that the helper was in fact giving any 

signals to the hoistman, or that any of these individuals· were 

ignorant of the appropriate signals or use of the signaling 

devices. In short, I find no credible or probative evidence 

to support any conclusion that there was a potential for any 

misunderstanding in the signals or signaling procedures which 

may have been in effect or in use at the time of the inspection. Further, as confirmed by the inspector, it was unlikely 

and unreasonable to expect that the hoist would move even if 

the power switch which was not locked out were thrown to the 

"on" position. Under all of these_ circumstances, I cannot 

872 
conclude that the violation was significant and substantial, 

and the inspector's finding in this regard is rejected and 

vacated. 

Size of Business and Effect of Civil Penalty Assessment on the 

Respondent's Ability to Continue in Business 

Based on the stipulations by the parties,~! conclude and 

find that the respondent is a medium-sized mine operator, and 

that the particular mine in question was a small-to-medium 

size operation. I also conclude and find that the payment of 

the civil penalty which has been assessed for the violation in 

question will not adversely affect the respondent's ability to 

continue in business. 

History of Prior Violations 

Based on the stipulations by the parties, which reflects 

that three violations were committed at the mine during the 

period March 4, 1986 through March 4, 1988, I conclude and 

find that the respondent has a good history of prior.compliance 

at this mine and this is reflected in the civil penalty 

assessed for the.violation in question. 

Good Faith Compliance 

The parties stipulated that the respondent demonstrated 

good faith by abating the cited condition within the time fixed 

by the inspector, and the record shows that abatement was 

achieved within 10 minutes by shutting off the power switch and 

locking it out. I conclude and find that the respondent demonstrated rapid compliance, and I have taken this into account in 

the civil penalty assessment for the violation in question. 

Negligence 

The inspector made a negligence finding of "moderate," 

and he confirmed that the failure to deenergize and lock out 

the hoist was inadvertent. I conclude and find that the violation resulted from the respondent's failure to take ordinary 

care, and the inspector's "moderate" negligence finding is 

affirmed. 

Gravity 

Notwithstanding my finding and conclusion that the violation was not significant and substantial, I find that the 

failure to deenergize and lock out the power switches in question ~as secious, particularly with cespect to the main switch 

873 
which was located outside of, and approximately 15 to 20 feet 

from the hoist operator's control room. While it may be true 

that the movement of the hoist was unlikely, even if the switch 

were "on," since it was not within the immediate cont:rol of the 

hoist operator, anyone could have had access to this switch, 

and it posed a potential, albeit not likely hazard. 

Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llOCi) of 

the Act, I conclude and find that a civil penalty assessment 

in the amount of $25 is reasonable and appropriate for the 

violation in question. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment in the amount of $25 in satisfaction of the section 

104(a) Citation No. 3260151, March 4, 1988, for a violation of 

mandatory safety standard 30 C.F.R. § 57.12016, and payment is 

to be made to MSHA within thirty <30 > days of the date of this 

decision and order. Upon receipt of payment, this proceeding 

is dismissed. 

In view of the disposition of the civil. penalty case, IT 

IS .FURTHER ORDERED that the respondent Is contest filed in 

Docket No. LAKE 88-128-RM, IS DENIED AND DISMISSED. 

Distribution: 

,-·; 

'/! 

_, '/:, . /, #..f-"f:<. I C/{ ,,/;~«.' .-vvv-4'-o ~- ,..- ~eetrge ft. Kou ra 

'1\dministrative Law 'Judge 

Victor Evans, General Manager, Ozark-Mahoning Company, P.O. 

Box 57, Rosiclare, IL 62982 (Certified Mail) 

Miguel J. Carmona, Esq •• Office of the Solicitor, U.S. 

Department of Labor, 230 South Dearborn Street, 8th Floor, 

Chicago, IL 60604 (Certified Mail) 

/fb 

874 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 9 1989 

ROGER L. STILLION, . . DISCRIMINATION PROCEEDING 

Complainant . . v. . 

. Docket No. LAKE 88-91-D . . MORG CD 88-3 

QUARTO MINING COMPANY, . . Respondent . . Powhattan No • 4 Mine 

SUPPLEMENTAL DECISION 

Appearances: Thomas M. Myers, Esq., United Mine Workers of 

America, Shadyside, OH, for Complainant1 

Michael Peelish, Esq., Consolidation Coal 

Company, Pittsburgh, PA for the Respondent1. 

Before: Judge Fauver 

A decision on liability was entered on April 6, 1989, 

holding that Respondent violated § 103 Cf) of the Federal 

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

by refusing to pay Complainant for his time spent 

accompanying a federal mine inspector on October 6, 7, and 8, 

1987. The decision provided that the parties should meet in 

an effort to stipulate the amount of back pay, interest and 

litigation expenses due the Complainant. 

The parties have filed a stipulation of back pay and a 

reasonable attorney fee. 

ORDER 

Based upon the stipulation, it is ORDERED that, within 

15 days of this Decision, Respondent shall pay Complainant a 

total of $2,375.71, representing back pay and interest of 

$258.21 and an attorney fee of $2,117.50. 

This Supplemental Decision and the Decision dated 

April 6, 1989, constitute the final decision of the judge in 

this proceeding. 

w~:r~~ William Fauver 

Administrative Law Judge 

875 
Distribution: 

Thomas M. Myers, Esq., General Counsel, UMWA, District 6, 

56000 Dilles Bottom, Shadyside, OH 43947 CCertif ied Mail) 

Michael R. Peelish, Esq., Quarto Mining Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

iz 

876 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 101989 

LOCAL UNION 1570, DISTRICT 31,: COMPENSATION PROCEEDING 

UNITED MINE WORKERS . : 

OF AMERICA (UMWA), : Docket No. WEVA 88-227-C 

Complainants 

v. : Federal No. 2 Mine 

EASTERN ASSOCIATED COAL 

CORPORATION, 

. . 

. . 

Appearances: 

Before: 

Respondent . . 

SUPPLEMENTAL DECISION AND ORDER 

Joyce A. Hanula, Legal Assistant, United Mine 

Workers of America, Washington, D.C., for the 

Complainants1 

Eugene P. Schmittgens, Jr., Esq., Eastern 

Associated Coal Corporation, Pittsburgh, 

Pennsylvania, for the Respondent. 

Judge Koutras 

On April 6, 1989, I issued a partial decision granting in 

part, and denying in part, the compensation claims filed by the 

complainants in this case. The parties were requested to file 

a stipulation with respect to the amounts of compensation and 

interest due the idled miners in question, and they have now 

done so. 

ORDER 

The respondent IS ORDERED to pay the following miners the 

noted compensation and interest due in this matter, and payment 

is to be made within thirty (30) days of the date of this 

supplemental decision. The April 6, 1989, decision is hereby 

made final along with this supplemental decision. 

877 
14 Right crew wages Lost 

Februar~ 9, 1988 CB Shift) 

Employee Employee No. Wages Lost Interest Total Due 

B. Tennant 43036 $64.46 $8.13 $72.59 

B. Milush 43186 $60.19 $7.59 $67.78 

M. Starkey 43503 $62.84 $7.93 $70.77 

w. Hovatter 43618 $64.46 $8.13 $72.59 

J. Starr 44408 $62.84 $7.93 $70.77 

I. Ammons 44417 $62.84 $7.93 $70.77 

J. Teets 44581 $62.84 $7.93 $70.77 

B. Powell 45137 $64.46 $8.13 $72.59 

D. Barker 45313 $64.46 $8.13 $72.59 

R. Varner 45444 $64.46 $8.13 $72.59 

J. Price 45449 $62.84 $7.93 $70.77 

February 10, 1988 CA Shift) 

Employee Employee No. wages Lost Interest Total Due 

o. Efaw 43077 $126.52 $15.96 . $142.48 

v. Alvarez 43094 $117.98 $14.88 $132.86 

J. Moore 44390 $123.28 $15.55 . $138.83 

R. Yoney 44400 $123.28 $15.55 $13a.03 

Februar~ 10£ 1988 CB Shift) 

Em2lolee Em2lolee No. Wag:es Lost Interest Total Due 

B. Milush 43186 $120.38 $15.19 $135.!)7 

I• Ammons 44417 $125.68 $15.86 $141,;54 

R. Boyce 45089 $120.38 $15.19 $135.57 

D. Barker 45313 $128.92 $16.26 $145.18 

February 10, 1988 cc Shift) 

Employee Employee No. Wages Lost· Interest Total Due 

J. Foley 43043 $129.72 $16.37 $146.09 

R. Schrader 43177 $129.72 $16.37 $146.09 

J. Kanosky 43207 $126.48 $15.96 $142.44 

c. Hoover 43218 $126.48 $15.96 $142.44 

R. Ribel 43536 $126.48 $15.96 $142.44 

w. Smith 43586 $129.72 $16.37 $146.09 

s. Hamilton 43808 $126.48 $15.96 $142.44 

J. Melton 44115 $121.18 $15.29 $136.47 

J. Hawkins 44151 $129.72 $16.37 $146.09 

878 
c. Stewart 44264 $126.48 $15.96 $142.44 

E. Jackson 43035 $121.18 $15.29 $136.47 

D. Barker 45090 $129.72 $16.37 $146.09 

J. Wilson 45135 $121.18 $15.29 $136.47 

R. Neff 45332 $121.18 $i5.29 $136.47 

s. Farrah 45518 $121.18 $15.29 $136.47 

T. Turek 45538 $121.18 $15.29 $136.47 

J. Mathews 44437 $129.72 $16.37 $146.09 

~·K1~ Administrative Law Judge 

Distribution: 

Joyce A. Hanula, Legal Assistant, United Mine Workers of 

America CUMWA), 900 15th Street, N.W., Washington, DC 20005 

(Certified Mail) 

Eugene P. Schmittgens, Jr., Esq., Eastern Associated Coal 

Corporation, 301 N. Memorial Drive, Post Off ice Box 373, 

St. Louis, MO 63166.CCertified Mail> 

/f b 

879 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 111989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

KYANITE MINING CORPORA0rION, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

: 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. VA 89-11-M 

A.C. No. 44-03743-05514 

Docket No. VA 89-10-M 

A.C. No. 44-03743-05513 

East Ridge Plant 

Appearances: Jacks. Strausman, Esq., Office of the Solicitor, 

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

for the Petitioner1 

B. R. Coleu~n, Vice President, Kyanite Mining 

Corporation, Dillwyn, Virginia, for the Respondent 

Before: Judge Maurer 

These cases are before me upon petitions for assessment of 

civil penalty under Section lOSCd> of· the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. §,801, et seg., (the Act). 

Pursuant to notice, a hearing was commenced in 

Charlottesville, Virginia, on April 20, 1989. At that hearing, 

prior to the taking of any testimony, the parties proposed a 

settlement agreement. The petitioner proposed reducing the 

specially assessed penalty from $7200 to $5000 as a more 

reasonable penalty for the training violations cited. I note 

that the 24 violations cited could be thought of as a single 

training violation with 24 counts. MSHA cited the operator for 

failing to provide new miner safety training and each of the 

24 Orders named an individual employee, and proposed a civil 

penalty of $300. In the aggregate, this amounted to a proposed 

civil penalty of $7200. I concur with the Secretary that $5000 

is a more reasonable penalty which still satisfies the public 

interest. The respondent has agreed to pay that amount in full 

settlement of the cases. I have considered the matter in that 

light and under the criteria for civil penalties contained in 

§ llOCi) of the Act and I conclude that the proffered settlement 

is appropriate. 

880 
Pursuant to the Rules of Practice before this Commission, 

this written decision confirms the .bench d.ecision I rendered at 

the hearing, approving the settlement. 

WHEREFORE IT IS ORDERED that respondent shall pay the 

approved civil penalty of $5000 within 30 days of this decision 

and upon such payment, this proceeding IS DISMISSED • 

Distribution: 

. ·

4 ./~' rl-1 - .. /~-- •7. t/!/I~ Ro~urer Admin£s~rative Law Judge v· 

Jack E. Strausman, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Boulevard, Room 516, Arlington ,VA 22203 

(Certified Mail) 

B. R. Coleman, Vice President-Operations, Kyanite Mining 

Corporation, P.O. Box 486, Dillwyn, VA 23936 (Certified Mail) 

/ml 

881 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

. WASHINGTON, D.C. 20006 

May 12, 1989 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

. . 

. . 

: 

Docket No. KENT 88-178 

A. C. No. 15-08333-03525 

v. 

. . No. 4 Mine 

CAMP FORK FUEL COMPANY, . . 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On March 15, 1989, a Decision Approving Penalty and Order .of 

Dismissal was entered in this case. On March 24, 1989, the Secretary filed a Motion for Reconsideration of the-Order of Dismissal 

on the ground that the penalty had not been paid. In-an Order 

dated April 7, 1989, the Commission vacated the dismissal and. 

remanded this case for further appropriate proceedings. 

On April 10, 1989, an order was issued in accordance with 

the Commission remand directing that within 21 days the parties 

confer and advise whether a hearing would be necessary. On April 

24, 1989, the Solicitor advised as follows: 

The records of the Civil Penalty Processing Unit, Mine Safety and Health Administration, United States Department of Labor 

CMSHA), establish that the Respondent mailed 

check number 12087 dated October 9, 1988, to 

the Department of Labor. This check was in 

the amount of $927.00. 

Attached to this check was a Proposed 

Assessment form on which the Respondent had 

indicated that $441.00 of this amount was to 

be credited to this assessment number and 

that this $441.00 was for payment of the five 

uncontested violations in A. C. Number 

15-08333-03525. The remaining $486.00 was 

credited to other civil money penalty assessments for which the Respondent owed payment, 

as was duly indicated by the Respondent in 

the tra·nsmi ttal of the check to MSHA. 

By letter of April 13, 1989, Linda 

Cantrell, Camp Fork Fuel Company, transmitted 

882 
to the Federal Mine Safety and Health Review 

Commission a check in the amount of $295.00 

for the remaining assessed penalties. She 

stated that the omission of this amount from 

the first check was an innocent oversight. 

Finally, the Solicitor stated that no hearing was required. 

The Solicitor's representations are accepted. 

ORDER 

In light of the foregoing, this case is DISMISSED. 

Chief Administrative Law Judge 

Distribution: 

Mary Sue Ray, Esq., Office of the Solicitor, U. s. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certified Mai;I.> 

Ms. Linda Cantrell, Bookkeeper, Camp Fork Fuel Company, Box c, 

Elkhorn City, KY 41522 (Certified Mail) 

/gl 

883 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

BLAINE K. DEEL, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 151989 

complainant . . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. VA 89-12-D 

PAROKI ENTERPRISES, INC., 

Respondent 

. . 

. . NOR'r CD 88-12 

No. 1 Truck Mine 

ORDER OF DISMISSAL 

Before: Judge Maurer 

The parties have jointly moved to dismiss the. captioned case 

on the grounds that they have reached a mutually agreeable 

settlement. Under the circumstances herein, permission to 

withdraw the complaint is granted. 29 C.F.R. § 2700.11. The 

case is therefore dismissed, with prejudice, as requested by the 

partiesi and the hearing set for May 18,1989, in Big Stone Gap, 

Virginia is cancelled. 

Distribution: 

d " /t J I ,. ) . ,'~ . l ' .• 

1 !,A-.,.e.J -1., 1·atii-w · 

Roy Ji Maurer 

Administrative Law Judge v· 

Blaine K. Deel, Route 2, Box 216, Vansant, VA 24656 (Certified 

Mail) 

Ms. Arlene Deel, Paroki Enterprises, Inc., Route 2, Box 71, 

Haysi, VA 24256 (Certified Mail) 

/ml 

884 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 161989 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AMBER COAL COMPANY, INC•, 

Respondent 

. . 

: Docket No. KENT 88-136 

: A.C. No. 15-11155-03532 . . 

. . 

Amber No. 7 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This proceedirig concerns a civil penalty assessment proposal filed by the petitioner against the respondent pursuant 

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

1977, 30 u.s.c. § 820(a), seeking a civil penalty assessment in 

the amount of .$8,500 for an alleged violation of mandatory 

safety standard 30 C.F.R. § 75.200, as noted in a section 

104Ca) Citation No. 2780320, issued on November 12, 1987. The 

respondent filed an answer and notice of contest, and a hearing 

was scheduled in Pikeville, Kentucky, on June 1, 1989. However, the parties have now filed a joint motion pursuant to 

Commission Rule 30, 29 C.F.R. § 2700.30, seeking approval of a 

proposed settlement of the case. The respondent has agreed to 

pay a civil penalty assessment in the amount of $6,000, for the 

violation in question. 

Discussion 

In support of the proposed settlement disposition of this 

case, the parties have submitted information pertaining to the 

six statutory civil penalty criteria found in section llOCi> of 

the Act. They have also submitted a full discussion and disclosure as to the facts and circumstances surrounding the 

issuance of the citation in question, and a reasonable justif i- ~ation for the reduction of the original proposed civil penalty 

assessment. 

885 
Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of this case, I conclude and find that 

the proposed settlement disposition is reasonable and in the 

public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30, 

the motion IS GRANTED, and the settlement IS APPROVED. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment in the amount of $6,000, in satisfaction of the violation 

in question within thirty (30) days of the date of this 

decision and order, and upon receipt of payment by the 

petitioner, this proceeding is dismissed. 

~.4.t~ Administrative Law Judge 

Distribution: 

Theresa Ball, Esq., Office of the Solicitor, u.s. Department of 

Labor, 2002 Richard Jones Road, Suite B-201,·Nashville, TN 

37215 (Certified Mail) 

Mr. Roger Kirk, P.resident, Amber Coal Company, Inc., 29501 Mayo Trail, Catlettsburg, KY 41129 (Certified Mail) 

/f b 

886 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

STENSON BEGAY, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

HAY 171989 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. CENT 88-126-D 

DENV CD 88-09 

LIGGETT INDUSTRIES, INC., 

Respondent 

DECISION 

Appearances: Earl Mettler, Esq., Mettler & Lecuyer, 

Albuquerque, New Mexico, for the Complainant1 

Charles L. Fine, Esq., O'Connor, Cavanagh, 

Anderson, Westover, Killingsworth & Beshears, 

Phoenix, Arizona for the Respondent. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

Complainant filed a complaint with the Commission under 

§105Cc> of the Federal Mine Safety and Healt~ Act of 1977, 30 

u.s.c. § 815(c) [hereinafter referred to as the Act] on June 26, 

1988, alleging essentially that because he believed that his 

health and safety were endangered by inadequate ventilation of 

welding fumes and noxious gases from his working spaces he was 

compelled to quit his employment •. This is a constructive 

discharge case. Complainant seeks reinstatement, back pay, 

attorney. fees and any other allowable compensation that the 

Commission may order. 

Pursuant to notice, this case was heard in Gallup, New 

Mexico on January 26 and 27, 1989. Both parties have filed 

post-hearing proposed findings of fact and conclusions of law 

which I have considered along with the entire record in making 

this decision. 

STIPULATIONS 

Pursuant to my prehearing order, the parties stipulated to 

the following: 

1. This case arises under § 105(c) of the Federal Mine 

Safety and Health Act of 1977. 

2. Respondent, Liggett Industries, Inc., was a contractor 

performing work at the McKinley Mine, a coal mine, owned and 

887 
operated by Pittsburg & M.idway Coal Company, Inc. (P & M Coal), 

which is located in no·cthwest New Mexico. 

3. Respondent's contract consisted (in major part) of the 

erecting and installing of two 1370W dragline bases. There were 

two contracts, one involving the bases on the north site, which 

lasted from May to October 19871 and the other contract involved 

the bases on the south site which commenced in October and 

con~luded on January 29, 1988 for welders. 

4. ·Complainant's hourly rate was $15.26 per hour and his 

fringe rate was $1.19, which totals $16.45 per hour. Complainant 

worked 40 hours per week. If he had not quit on December 10 and 

had ~orked each work day through January 29, 1988 (the date the 

last welder was laid off on the project), he would have worked 

280 hours. Multiplied by $16.45, he would have earned gross 

wages in the amount of $4,606 .. 00. 

FINDINGS O~, FACT 

1. Complainant is a certified welder and has worked in the 

construction industry as such for approximately 13 years. 

2. Respondent, at all times pertinent hereto, was a 

contractor engaged in equipment erection and maintenance for the 

mining industry. 

3. During 1987, and early 1988,· respondent was performing 

work, constructing two dragline,bases or tubs, at the McKinley 

Mina, operated by the Pittsburg and Midway Coal Company (P & M) 

near Gallup, New Mexico. 

4. Complainant started working for respondent as a welder 

on May 26, 1987 on the first of the two dragline bases that 

respondent assembled at the McKinley Mine. The second project, 

called the south site project, started sometime in October 1987 

and the welders started actually welding inside the base during 

mid-November 1987. On December 10, 1987, after a meeting and 

confrontation with management, complainant walked off the job and 

for all intents and purposes quit his employment with respondent. 

It is this "quitting" that the complainant now alleges was a 

constructive discharge. 

5. Each dragline base, or tub, was round and approximately 

60 feet in diameter. It initially was assembled in pie-shaped 

sections, made-up of compartments. Each comparLnent is 

appcoximately four cubic feet in volume. 

6. 'rhe compartments were fitted togethec and subsequantly 

'Welded together and to the base itself. 

888 
7. There were fourteen manholes on the top of the tub, 

leading from the top of the base into the tub, from which smoke 

from inside the tub could escape. 

8. There were also seams between the pie-shaped sections 

from which smoke could escape, at least until such time as those 

:3eams were welded up. This was one of the last procedures 

performed. 

9. As of December 10, 1987, there were a maximum of eleven 

welders working on the base· and in tbe tub at any one time. 

Typically, eight to ten welders were welding inside the base at 

the same time. 

10 •. There were passages throughout the tub that the welders 

could move through f roin one compartment to the next by crawling 

through holes in the compartment walls. 

11. The south site project was located on top of a hill in 

an area that was usually very windy. However, wind was not 

relied upon by the respondent to ventilate the base. 

12. A canvas tent was positioned over the base. At times 

·the sides of the tent were completely down around the 

circumference of the base and at other times the tent sides were 

rolled up or at least partially rolled up. 

13. Welding on the south site project began in approximately 

mid-November of 1987. 

14. At various times there were differing amounts and types 

o.f ventilation equipment available to clear the smoke and fumes 

from the working spaces inside the tub. There were at all times 

pertinent hereto, ten MSA air movers, sometimes referred to as 

"air horns" available. However, these were not actually used on 

the south site project ostensibly because they were 

compressor-powered and the compressor available did not have 

adequate capacity to operate them. There were also two Supervac 

fans available.and in use, as well as two or three household 

fans, by early December of 1987. Most significantly, there were 

.Eive Dayton blowers available and in use fro1n mid-November until 

December 9, 1987, when a sixth Dayton blower was acqui.ced and put 

into service. 

15. The two Supe:cvac fans were sometimes used by positioning 

one at one end of the base, on top, so that it would bring air 

into the canopy under the tent and the other at the .opposite end 

of the base, also on too to exhaust air out from under the tent. 

'l'he Supervacs were capable of rnovin9 9 ,200 cubic feet of air per 

minute. However, in this configuration they were not useful for 

exhausting smoke f r.orn inside the compartments where the welders 

were ;,ictu3.lly working, creating smoke and fumes. They were 

useful for maintaining airflow and removing some smoke from the 

889 
base area under the tent. The Supervacs were also tried with 

Eittings and hoses running down into the compartments in an 

attempt to pull air out of the compartments (and smoke along with 

it), but these attempts met with mixed results, at best •. 

16. The household fans on the top of the base did not 

contribute in any significant way to ventilation inside the tub. 

17. The niost significant ventilation of the compartments 

inside the base was accomplished by the Dayton blowers. They 

exhausted fumes and smoke from the compartments by suction. The 

Dayton blowers physically sat on top of the base. Flexible hose 

was used to bring the fume::; and smoke from the compartments to 

the Dayton blowers, where it was then exhausted into the canopy 

under the tent on top of the base, and dispersed to some extent 

there by the SuperVacs and the wind, depending on the 

configuration of the tent sides. 

18. Fresh air from outside the atmosphere that existed 

underneath the tent was never brought into the base where the 

welding was going on. Although the evidence is conflicting about 

the atmosphere inside the tent above the base, I find that it was 

generally smokey a majority of the time. 1rherefore, when one of 

the Supervacs was put over a manhole to force air into the base, 

the air that went in was no better than that which was inside the 

tent. 

19. Various kinds of welding was done inside the tub, 

including innershield or wire welding, stick welding and arc 

gouging. This welding created extremely smokey conditions inside 

the tub ~here the welders were working inside the compartments as 

well as noxious fumes. 

20. Both the Occupational Sa.fety and Health Administration 

(OSHA) and the American Welding Society have published standards 

for ventilation for welding in closed spaces. Ms. Cheryl Lucas, 

testifying as a certified industcial hygienist for the 

complainant established that when the Dayton blowers were used 

with a T-coupling by two welders, as they most often were, the 

Elow volume for each welder is reduced by half and does not meet 

the OSHA standard, even ,if all the other conditions specified in 

the standacd ace met, which they were not. She also opined that 

the ventilation set-up did not meet the American Welding Society 

standard. 

I am satisfied that the ventilation inside the tub met 

neither standard despite the fail11re of Ms. ~ucas to consider the 

effect of some of the smoke escaping via other routes such as 

rising up though the manholes or seams in the compa:ctments, the 

other fans in use oc the wind. In my opinion, which is also 

hers, the only significantly effective mode of ventilation inside 

the tub was the Dayton blowers and that is what her testimony 

focused on. 

890 
I hasten to add here as an aside at this point, however, 

that whether the ventilation at respondent's project met either 

of these standards or not is not directly at issue in this case 

and therefore I am not going to go into great detail in analyzing 

it. The basic issue in this case remains whether the 

complainant's work refusal was based upon his reasonable and good 

Eaith belief that his working conditions were unsafe and/or 

unhealthful due to inadequate ventilation. There was no 

testimony that complainant knew of or was relying on any 

technical standards as a basis for forming his beliefs. Neicher 

did the respondent compare their ventilation system with any 

published standards for airflow. The respondent also did not 

introduce any evidence to the effect that the ventilation in the 

tub did meet OSHA standards, or any published standards, for that 

matter. Respondent does insist that the ventilation was adequate 

based on experience in the industry. I find, however, that it 

was not. 

21. The first complaint the complainant ever made to any 

supervisor or manager of respondent was made during a regular 

safety meeting on November 23, 1987. At that time they (the 

welders) were just about finished with the vertical welding and 

were going to be starting on the overhead and flat ~elding. 

Complainant told General Manager David Jones that the fume 

exhaustecs (the Dayton blowers) were not adequate for the 

overhead welding, and that more ventilation equipment was needed. 

He related that on these type of welds the distance between the 

welding and the end of the air hose could be as much as two feet. 

The point being that at this distance the blowers would not 

adequately capture the smoke and fumes from the innershield 

welding. 

22. Mr. Jones told complainant he would pass on the 

complaint to Mike Eslinger, the welding foreman. He also ordered 

another blower and more fire-proof hose which were ultimately 

ceceived and put directly into ser-vice before complainant left 

the job. 

23. The next incident occurred on November 30, 1987. On 

that day, Dave Johnson, another welder, made a statement to Mike 

.E:slinger that "it was redl smokey" and if the ventilation did not 

improve he would quit. E3linger told Johnson to "go ahead, he 

didn't care". Complainant overheard this exchange and responded 

to Eslinger' s comment by stating that he (,Johnson) wasn't going 

to be the only one leaving. At this juncture, Eslin3er said he 

would take c~re oE it (the ventilation problem). 

24. Complainant testified there was one other occa31on prior 

to Novemoer 30, 1987 that he had informed Ealinger that he felt 

it ;.va::; very smokey inside the tub esp(=cially when two oc three 

welders were working in close proximity to each other. Eslinger 

stated he would tell Jones •. 

891 
25. Complainant allegedly experienced coughing, productive 

of mucus and blood and other respiratory symptoms while working 

on the project, and was seen by a doctor on December 7, 1987, ior 

respiratory complaints. However, I find that there is no 

evidence to show that his respiratory difficulties, to whatever 

extent they existed, were caused by wor~ing for respondent. 

Complainant did not return to the doctor between December 7, 1987 

and February 15, 1988. At that time, his symptoms had increased 

in severity ev~n though he had not worked for respondent or 

anyone else since December 10, 1987. The doctor diagnosed 

pneumonitis probably secondary to industrial gases. There is no 

evidentiary basis in the record, however, for finding that 

"probability" to be grounded in fact. I am not holding that 

complainant's respiratory difficulties were not caused by the 

smoke and .fumes he encountered on the job. I am stating that 

there is insufficient evidence to prove-up that p(oposition. 

However, I will take administrative notice that working in a 

smokey environment is not a positive factor for someone who has a 

cespiratory ailment, whatever its etiology. 

26. Other welders who worked on the project and testified 

at the hearing also experienced dizziness and coughing up oi 

mucus and blood which they attributed to welding on the 

respondent's project. They also believed that the ventilation in 

the tub was inadequate. 

27. On December 9, 19 87, G,eneral Manager Jones advised 

Eslinger that he wanted to have a meeting of all personnel the 

following mo.cnin9, December 10, 1987, because he had recently 

noticed that the employees were abusing their lunch break and 

were leaving work early. 

28. At the meeting on the morning of December 10,.1987, 

ventilation was also discussed. Stenson Begay testified that the 

following exchange took place (TR. I, pp. 65-67): 

Q. Now, was ventilation discussed at a meetirig on 

December 10th? 

A. Yes. 

Q. Can you tell me who spoke first at that 

meeting? 

A. Dave ,Jones. 

Q. And what did he say? 

A. He said the problem was brought to his 

attention by Mike Eslinger on the ventilation. 

Q. And what ~lse did ne say? 

892 
A. And he said that this should have been brought 

to his attention ahead of time, and I interrupted 

him. 

Q. And what did you say? 

A. I told him that, "Excuse me, Dave, but this 

was brought to your attention on November 30th by 

myself." 

* * * * * * 

Q.· You're referring to - November 30 or 

Nov·ember 23rd? 

A. November 23rd. 

* 

Q. And did you say anything more in addition to 

reminding him that you had brought it up before? 

A. ies. I told him that you were making it sound 

like we' re to blame; that he's say·ing that we 

didn't bring it to his attention, but we did, I 

did. 

Q. And did Mr. Jones continue to discuss? 

A. Yeah.· He said as far as he's concerned, he's 

not breaking any state or federal laws and that 

his decision was not to purchase additional 

ventilation equipment and if any of the welders 

still Eelt that it was still too smokey, that 

he would have to discharge welders. 

* * * * * * 

Q. When Mr. Jones indicated that he would not 

buy more ventilation equipment, what kind of 

equipment did you take that to refer to? 

A. The Daytona [sic] blowers which we needed in 

our work area. 

Q. Did he of fer to supply other kinds of 

equip1nent? 

A. He said that he had ocdered some six-inch 

tubin3 or exhaust duct. 

Q. Hose from ~elder to the --

893 
A. Yeah, the hose. He said he ordered the 

fireproof ones this time. 

Q. And considering what he said about not buying 

any more machinery or blowers, did you take that 

to be a definite decision? 

A. Yes, the way he said it. 

29. Mr. Jones testified that during the discussion of the 

ventilation problem at the December 10 meeting, he had stated 

that in his opinion the ventilation in the tub was adequate and 

there was only approximately two weeks of welding left inside the 

tub in any event. He told the welders that he would purchase 

additional hose if requested, but he would not purchase 

additional blowers because the cost was not justified by the 

amount of welding left to do in the tub. Furthermore, Mr. Jones 

also told the welders at this meeting that if the ventilation waa 

still a problem he would lay off employees by seniority under the 

theory that the fewer welders that there were welding inside the 

tub, the less smoke there would be. At the end of th.is 

presentation he asked if there were questions. There were none. 

10. To the point that I have recited it here, s·upra, I 

credit the overall subatance of both Jones' and Begay's 

recollection of the important December 10 meeting. It is 

obviously slanted in each case to their particular point of view, 

but I find the testimony of both men to be generally credible. 

31. ~he meeting at this point moved on to another subject--

the long lunches and leaving early. An employee named Leonard 

Mike became insubordinate during this later portion of the •n,~eting and quit. He most likely would have been fired for 

insubordination in any event had he not quit. Respondent has 

attempted to connect up complainant to Leonard Mike, but I find 

nothing in common to the i:.\'lo situations except the fact that they 

both left the job at the sama time. There is no indication in 

the record that complainant was concerned with overstaying his 

lunch time or leaving early. There is also no evidence that his 

leaving the job had anything to do with Leonard Mike's outburst 

and subsequent departure.-

32. Complainant was the most vocal of the welders 

concerning ventilation matters, and 1nanageinent. knew he was 

greatly concerned with the ventilation inside the tub at the 

south side project. 

33.. Prior to the December 10 ineeting, .:omplainant was 

planning to go to work that day. He had already checked out 

tools and .equip·.nent fro•n the toolroom in preparation for work. 

However, at this meeting, management for the first time took the 

unshakable position that there would be no further ventilation 

e9uipment provided. This was ~ommunicated to the welders, 

894 
includin•3' complainant, at that meeting. I the.ref ore find and 

believe that complainant returned his tools to the toolroom 

because in his mind he believed the situation to be hopeless at 

that point. He now knew that no more Dayton blowers would be 

provided and that if there were further complaints, welders would 

go. Apparently not necessarily himself, but welders with less 

seniority on the job. 

34. After the meeting, when it became apparent that 

complainant and two others were leaving the job, Mr. Jones asked 

them all to first come to his o·Efice before they left the 

premises, which they did. 

35. In the office, none of the welders, including 

complainant, made it expressly clear to Jones why they were 

leaving. However, in the case of the complainant, which is the 

only case we are concerned with here, I find that he left the job 

because of the ventilation situation inside the base and more 

significantly, I find that management in the persons of Jones and 

Eslinger understood that to be the case at the time. 

36. Apropos the finding in No. 35, supra, at this 

post-meeting meeting in the office, Mr. ~alinger became agitated 

with co1nplaina.nt specifically about the ventilation complaints. 

He jumped off the table he was sitting on and came eight up into 

the face of the complainant, and using profanity said that they 

were the worst bunch of "crybabies" that he had ever run across. 

He was bent on continuing this tirade when jones grabbed him by 

the arm and took him outside. Mr. Jones testified that he took 

him outside and told him that "we handle everything in a 

business-like manner and we speak to the people as they are 

people". 

37. It is my impression that at this point the die was cast. 

A business decision had been made. There would be no additional 

monies spent on ventilation equipment, no matter what. If a 

couple of welders thought it was too smokey inside the base and 

they quit, so be it. The job wa3 almost complete and if 

replacement welders were needed,_ they could be found. In fact, 

the next week, respondent did hire two additional welders. 

38. Immediately after leaving the job site, complainant, 

accompanied by Dave Johnson, went to the P & M Mining Company 

safety office to inform personnel ot P & M's safety department 

that they had quit their jobs because of ventilation problems 

inside the base. 

39. Subsequent inspections by P & M Coal Company and MSHA 

failed to establish any violations of safety or health 

regulations on the project. 

895 
Discussion, Further Findings, and Conclusions 

The general principles governing analysis of discrimination 

cases under the Mine Act are settled. In order to establish a 

prima facie case of discrimination under section 105(c) of the 

~ct, a complaining miner bears the burden of production and p.coof 

in establishing that Cl) he engaged in protected activity and (2) 

the adve-rse action complained of was motivated in any part by 

that protected activity. Secretary on behalf of Fasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), 

rev'd on other grounds sub norn. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3rd cir. 1981); Secretary on behalf of 

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

The operator may rebut the prima facie case by showing either 

that no protected ac~ivity occurred or that the adverse action 

was in no part motivated by protected activity. If an operator 

cannot rebut tha prima facie case in this manner, it nevertheless 

may defend affirmatively by ptoving that it also was motivated by 

the miner's unprotected activity and would have taken the adverse 

~ction in any event for the unprotected activity alone. Fasula, 

supra; Robinette, supra. See also Eastern Assoc. Coal Corp. v. 

FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford 

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

Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1981) 

C speci E ically approvin·; the Commission's Fasula-Robinette test). 

Cf. NLRB v. Transportation Management Corp., 462 U.S. 393, 

397-413 (1983) (approving nearl~ identical test under National 

Labo-r Relations Act). · 

As stated previously, this 1 is a cons tructi.ve discharge 

case, wherein the complainant -refused to weld any further inside 

the base with the existing ventilation, allegedly because he 

believed it was unhealthy for him to do so. If I find that this 

work refusal equated to engaging in protected activity under the 

Act, then a finding of conatructive discharge would be tantamount 

to a finding of adverse action motivated by that protected 

activity, and hence unlawful discrimination within the meaning of 

~ection 105(c) of the Mine Act. 

The appropriate standard to apply in the context of the Mine 

Act is that a constructive discharge occurs whenever a min~r 

engaged in protected activity can show that an operator created 

or maintained conditions so intolerable that a reasonable miner 

would have felt compelled to resign. Whether conditions are so 

intolerable that a reasonable person would feel compelled to 

rasign is a question fo-r the trier of fact. Simpson v. FMSHRC 

842 F.2d 453, 461-463 CD.C. Cir. 1988). 

It is also well settled that a miner has the right under 

section lOSCc> of the Act to refuse to work if he has a good 

faith, reasonable belief that the work involves a hazardous 

condition. Pasula, supra, 2 ~MSHRC at 2789-96; Robinette, supra, 

3 FMSHRC at 807-12; Secretary v. Metric Constructors, Inc., 

896 
Additionally, where reasonably possible, a miner refusing work 

ordinarily must communicate or attempt to communicate to some 

representative of the operator his belief that a hazardous 

condition exists. Secretary on behalf of Dunmire & Estle v. 

Northern Coal Co., 4 FMSHRC 126, 133-135 (February 1982); Dillard 

Smith v. Reco, Inc., 9 FMSHRC 992 (June 1987); Miller v. 

Consolidation Coal Company, 687 F.2d 194, 195-97 (7th Cir. 1982) 

(approving Dunmire & Estle communication requirement). 

In analyzing whether a miner's belief is reasonable, the 

hazardous condition must be.viewed from the miner's perspective 

at the time of the work refusal, and the miner need not 

objectively prove that an actual hazard existed. Secretary 

ex rel. Bush v. Union Carbide Corp., 5 FMSHRC 993, 997-98 {June 

1983); Secretary ex rel. Pratt v~ River Hurricane Coal Co., 

5 FMSHRC 1529, 1533-34 (September 1983): Haro v. Magna Copper 

Co., 4 FMSHRC 1935, 1944 {November 1982); Robinette, supra, 

3 FMSHRC at 810. The Commission has also explained that "[g]ood 

faith belief simply means honest belief that a hazard exists." 

Robinette, supra at 810. 

The initial question for decision then at this point is did 

Stenson Begay reasonably and in good Eaith believe that he would 

be required to work in hazardous and unhealthful conditions if he 

remained on the job on the morning of December 10, 1987. 

Stenson Begay had thirteen years experience as a welder in 

the construction industry; he was well thought of as a welder by 

respondent's management and his complaints about the ventilation 

inside the base were taken seriously by General Manager Jones. 

Mr. Jones testified that Begay was the most vocal of the welders 

concerning the ventilation and was considered by him to be 

credible. Complainant's belief that the conditions inside the 

base were excessively smokey and therefore unhealthful and 

hazardous was shared by all the welders who testified at the 

hearing and was buttressed by the expert opinion of the 

industrial hygienist. For a period of some two weeks plus, Begay 

had been expressing his continuing concern about the smokey 

conditions inside the tub to management and some improvements 

were made, but they were insufficient. After the meeting on the 

ffiorning of December 10, 1987, Begay had sufficient cause to 

believe that management intended to do nothing further to 

alleviate or improve the \Tentilation in::iide the dragline base. 

Respondent's position that their offer to discharge some of the 

welders to improve the ventilation inside the tub .ls not well 

taken. It lacks c~edibility given the fact that they replaced 

the complaining weld~rs who quit 11ith two mo:ce welders the 

Eollowing week. It was in this setting that Begay turned in his 

tools and equipment and left the job sita, leaving behind a job 

that paid $16.45 an hour for unemplo~ment. 

897 
I therefore find and conclude that complainant Begay 

ref used to weld inside the base any longer because he reasonably 

and in good faith believed the inadequate ventilation inside the 

tub to be hazacdous to his health because of the extremely smokey 

and noxious conditions extant there. He had every reason to 

believe that if he stayed on the job, he would be required to 

work in unhealthy conditions. 

Next, respondent alleges that complainant failed to 

expressly communicate his reason for quitting and that such 

failure cannot be excused on account of futility. 

While it is true that complainant did not expressly and 

unequivocably state his reason for quitting at the time he left 

the job site to a management representative of respondent, he did 

so state to a respresentative of the P & M Coal Company, for whom 

the construction work was being done. Furthermore, reading the 

record as a whole, I find that over the previous 2-3 weeks prior 

to December 10, 1987, Begay did make a good faith attempt to 

communicate his concerns to management, specifically to Jones and 

Eslinger. Approaching the communication requirement from a 

common sense standpoint, I believe that Begay did all that could 

be reasonably expected of him. Telling Mr. Jones one .last time 

that the atmosphere inside the tub was unhealthy would not in my 

opinion have resulted in the procurement of the badly needed 

ventilation equipment or made complainant's job any safer. 

I conclude that complainant was constructively discharged as 

a result of a protected work refusal. Accordingly, he was 

unlawfully discriminated against in violation of Section 105(c) 

of the Mine Act. The complaint of discrimination is therefore 

SUSTAINED. 

REMEDIES 

Turning now to complainant's remedies, I find that the 

stipulated amount of back pay, $4606, is appropriate to 

recompense the complainant for back pay from December 10, 1987, 

until welding was discontinued on this project on January 29, 

1988. The payment of interest will also be ordered on this award 

until the date of payment. 

Complainant also seeks reinstatement. However, due to the 

nature of the respondent's industry, which for welders involves 

only temporary stints of employment, generally only for the 

duration of a specific project, an etfective reinstate1nent remedy 

is difficult to fashion. 

I note from the evidence adduced at the hearing that several 

of the welders from the McKinley Mine dragline base projects have 

from time to time subsequently been rehi:c(~d by respondent to work 

as welders on other projects. Therefore, respondent will be 

ordered to consider complainant's application, should he make 

898 
application, in good faith for any openings for welders on its 

projects without regard to his having made ventil~tion complaints 

in the past or the instant discrimination complaint. This shall 

i~clude all work for which the complaina~t is qualified, 

considering his training and experience. 

Finally, respondent will be ordered to reimburse complainant 

for his reasonable attorney fees and costs of litigation. 

Complainant's counsel submitted an itemized affidavit on 

March 27, 1989, accounting for 87.8 hours of attorney time 

expended tor lllhich he requests $125 per hour. This amounts to 

$10,975. He has also documented $3,012.92 in costs. No 

objection has been received from respondent. 

My own review of the attorney fee petition and statement of 

costs satisfies me that they are reasonable considering the 

nature of the issues involved, the degree of s~ill with which 

complainant was represented and the amount of time and work 

involved. It shall be so ordered. 

ORDER 

Based on the stipulations and the foregoing findings of fact 

and conclusions of law, respondent IS ORDERED: 

1. To pay Stenson Begay back pay through January 29, 1988 

in the amount of $4606, within 30 days of the date of this order. 

2. To pay Stenson Begay inte~est on that amount from 

the date he would have been entitled to those monies until the 

date of payment, at the short-term federal rate used by the 

Internal Revenue Service for the underpayment and overpayment of 

taices, plus 3 percentage points, as announced by the Commission 

in Loe. U~ 2274, UMWA v. Clinchfield Coal Co., 10 PMSHRC 1493 

(November 28, 1988), pet. for review filed, No. 88-1873 CD.C. 

Cir. Dec. 16, 1988). 

3. To consider Stenson Begay's application for employment 

in the future, should he make such application, in good faith and 

without regacd to his having made previous safety and health 

related complaints, or this discrimination complaint. This order 

:~ncompasses all employment for which Stenson Begay is qualified, 

considering his training and experience. 

4. To pay St2nson Begay $10,975 as reimburse;nent for. 

attorney fees. 

5. To pay Stenson Begay $3012.92 as reimbursement for 

costs. 

/J 

/ J 4 /l;l I .v ,l(/(J ~· 

Law Judge 

899 
Distribution: 

Earl Mettler, Esq., Mettler & Lecuyer, P.C., 1st Floor, Copper 

Square, 500 Copper, NW, Albuquerque, NM 87102 (Certified Mail) 

Charles L. Fine, Esq., 1 East Camelback Road, Suite 1100, 

Phoenix, AZ 85012-1656 (Certified Mail) 

/ml 

9QO 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

May 17, 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

C. W. MINING COMPANY, 

Docket No. WEST 88-290 

A. C. No. 42-01697-03589 

Bear Canyon No. 1 Mine 

ORDER OF PARTIAL SETTLEMENT 

ORDER OF PARTIAL DEFAULT 

ORDER TO PAY 

Before: Judge Merlin 

The Solicitor has filed a partial motion to approve 

settlement for two of the three violations involved in this case. 

Citation No. 3075965 was issued for a violation of 30 C.F.R. 

§ 75.1725(a) because a belt control switch was not being maintained to act as a positive stop control for the belt. The 

penalty was originally assessed at $192 and the proposed settlement is for $134. Citation No. 3224163 was issued for a violation of 30 C.F.R. § 75.220 because the approved roof control 

plan was not being complied with. The penalty was originally 

assessed at $294 and the proposed settlement is for $206. I have 

reviewed these violations in light of the six statutory criteria 

set forth in section llO(i) of the Act, 30 U.S.C. § 820(i), and 

find that the proposed settlements may be approved as being in 

accordance with the provisions of the Act. 

The remaining violation, Order No. 3227164, was issued for a 

violation of 30 C.F.R. § 75.303Ca) because an adequate preshift 

examination was not made of an area in the lower seam section in 

that observable hazards which existed were not listed in the 

approved book. The penalty is assessed at $700. On January 9, 

1989, the operator was ordered to file an Answer for this violation or show cause for not doing so. The file contains the 

return receipt showing that the operator received a copy of the 

show cause order on January 14, 1989. However, the operator 

failed to comply with it. As a result, judgment by default must 

be entered in favor of the Secretary. 

It is therefore, ORDFRED that the partial settlement motion 

for Citation Nos. 3075965 and 3224163 be APPROVED and the 

operator is ORDERED TO PAY $340. 

901 
It is further ORDERED that judgment by default shall be 

entered in favor of the Secretary for Order No. 3227164 and a,s a 

result the operator is ORDERED TO PAY $700. 

Finally, it is ORDERED that the operator pay $1,040 within 

30 days from the date of this decision. 

Law Judge 

Distribution: 

Margaret Miller, Esq., Office of the Solicitor, u. s. Department 

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

Denver, co 80294 (Certified Mail) 

Mr. Bill Stoddard, President, c. W. Mining Company, P. o. Box 

300, Huntington, UT 84528 (Certified Mail) 

/gl 

902 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAY 181989 

JAMES H. COLQUITT, 

Complainant . . DISCRIMINATION PROCEEDING 

v. 

IDEAL BASIC INqUSTRY/CEMENT 

COMPANY, 

Respondent 

Before: Judge Lasher 

. . 

. . 

. . 

. . 

Docket No. CENT 89-3-DM 

MD 88-32 

Ada Quarry 

DECISION 

The parties, both represented by counsel, have executed a 

Stipulation of Voluntary Dismissal in this matter. Such stipulation, personally confirmed by Complainant's counsel with me, 

indicates that a settlement has been reached in this matter and 

that pur$uant thereto this matter should be dismissed with 

prejudice. 

Accordingly, this proceeding is dismissed with prejudice, 

each party to bear his own costs. 

Distribution: 

~//.~fi- Michael A. Lasher, Jr. 

Administrative Law Judge 

Leslie v. Williams, Jr., Goff & Williams, 1212 Northwest 50th 

Street, Oklahoma City, OK 73118 (Certified Mail) 

John B. Gamble, Jr., Esq., Fisher & Phillips, 1500 Resurgens 

Plaza, 945 East Paces Ferry Road, Atlanta, GA 30326 (Certified 

Mail) 

/bls 

903 

;;:~· 

4-:~/ 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE· 

FALLS CHURCH, VIRGINIA 22041 

MAY 221989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EDWARD KRAEMER & SONS, 

INCORPORATED, 

Respondent 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 88-129-M 

A. C. No. 33-00091-05504 

White Rock Quarry 

Appearances: Maureen M. Cafferkey, Esq., Office of the Solicitor, 

U. S. Department of Labor, Cleveland, Ohio, for the 

Secretary~ 

Willis P. Jones, Jr., Esq., Jones and Bahret, 

Toledo, Ohio, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

I 

This case is before me based on a Proposal for Penalty filed 

by the Secretary (Petitioner) on August 18, 1988, for an alleged 

violation of 30 C.F.R. § 56.14001. The Operator (Respondent) 

filed its Answer on September 16, 1988. 

On January 11, 1989, Petitioner filed Interrogatories and 

Request for Production of Documents. On January 19, 1989, 

Respondent filed a Motion for Protection Order arguing, in 

essence, that discovery shall not be allowed inasmuch as it was 

initiated beyond 20 days after the filing of the Proposal for 

Penalty filed on August 18, 1988 (See, 29 C.F.R. § 2700.55). 

Respondent's Motion was denied by Order dated January 30, 1989. 

Pursuant to notice, this case was heard in Toledo, Ohio, on 

February 23, 1989. Robert G. Casey and Arthur J. Hoffman testified for Petitioner. Edward s. Kraemer and M. Honora Kraemer 

testified for Respondent. 

Petitioner filed a Post-Trial Brief on April 27, 1989. On 

May 15, 1989, Respondent filed a Post-Trial Brief and Prooosed 

Findings of Fact and Conclusions of Law. On May 19, 1989: 

Respondent filed a Reply to Petitioner's Post-Trial Brief. 

904 
Stipulations 

The Parties agreed on the following stipulations: 

1. The Federal Mine Safety and Health Review Commission has 

jurisdiction over this proceeding. 

2. Edward Kraemer & Sons owns White. Rock Quarry in Clay 

Center, Ohio. · 

3 •. Edward Kraemer & Sons, Incorporation is an operator as 

defined by Secti~n 3(d) of the Act. 

4. White Rock Quarry is a mine as defined by Section 3(h) 

of the Act. 

5. Edward Kraemer & Sons are subject to the jurisdiction of 

this Court and the 1977 Mine Act. 

6. The size of proposed penalty, if assessed, will not 

affect the Operator's ability to continue in business. 

Citation 

Citation No. 3060361, issued on March 29, 1988, alleges as 

follows: 

In the quarry, at the running crusher, the front 

face of ~he approximately three and one half foot 

diameter fast spinning flywheel is unguarded. Although 

this flywheel is approximately eight feet off the 

ground, the steel access ladder to the crusher operator's control deck passes within eight inches of said 

flywheel. A person mounting or dismounting the crusher 

could contact this flywheel and be injured. 

Regulation 

30 C.F.R. § 56.14001 provides as follows: 

• • • and similar exposed moving machine parts 

tacted by persons, and which many cause injury 

be guarded." 

Findings of Fact and Discussion 

I. 

" • • • flywheels i 

which may be conto persons, shall 

The crusher in question has been used at Respondent's White 

Rock Quarry since January 1, 1988. The flywheel of the crusner, 

as depicted in Petitioner Exhibit 1, has a diameter of approximately 3 feet. Tha flywheel does not have any belts or chains. 

The exposed face of the flywheel is essentially smooth, but 

contains four nuts in its ~enter. The flywheel operates at 

905 
approximately 1800 to 2100 revolutions per minute, and is located 

approximately 8 feet off the ground. Those persons who operate 

the crusher must climb a vertical steel ladder from the ground to 

enter.the platform where the crusher is operated from. In 

entering the work platform from the ladder, two handrails must be 

grasped to hoist one's self onto the platform. These handrails 

are located at the top of the ladder and 8 1/4 inches laterally 

from the flywheel,l/ and approximately 10 inches in front of the 

flywheel. The flywheel has two separate guards along the upper 

portion of the outside circumference of the flywheel, covering 

approximately 180 degrees of the circumference. (Petitioner's 

Exhibit 1 and 2, and Respondent's Exhibit 3.) 

Robert G. Casey; an MSHA Special Investigator Specialist, 

who was a supervisor of inspectors on March 29, 1988, accompanied 

an in•pector on an inspection of the White Rock Quarry on that 

date. Casey indicated that he observed the crusher in operation, 

and the flywheel was "spinning very fast" (Tr. 34). He said that 

he observed an employee climbing the ladder to the work place, 

and noticed how close the latter's hand was to the flywheel when 

he grabbed the handrails. Casey concluded that the guards in 

place were inadequate to prevent the hazard, which he a·escribed 

as being immediately obvious, of a worker missing a guard rail, 

hitting the flywheel, and injuring his hand, or on a windy day 

having his clothing caught in the flywheel or its hub causing the 

worker to be entangled in the machinery. 

Arthur J. Hoffman, who has been operating a crusher for 

Respondent since June 1986, indicated that in the winter he wears 

a jacket under coveralls. He said that in the spring when he 

wears a jacket he has never climbed to the top of the crusher 

with the jacket unzipped. He said that in the summer he wears 

short sleeve shirts. He indicated that it would be possible to 

miss a rail in climbing the steps of the ladder, but not by 

6 inches, and that he has never come in contact with the flywheel 

while going up or down to the work site. He also indicated that 

although it would be possible to slip off the ladder, his hand 

would not come in contact with the flywheel since in climbing the 

ladder, his body presses backward, and thus in slipping he would 

not fall forward. He also indicated that if his jacket would be 

open while reaching for th·e handrail, and he would fall, the 

jacket would not get caught in the flywheel, as the revolutions 

of the flywheel create a wind which blows the jacket behind him . 

. ~/ I have accepted the testimony of M. Honora Kraemer, 

Respondent's Safety and Loss Prevention Officer, with regard to 

the lateral distahce of the flywheel from the handrail as she 

actually measured that distance. In contrast, there is no 

evidence that the testimony of Robert G. Casey, MSHA Inspector, 

Arthur J. Hoffman, the crusher operator, or Edward S. Kraemer, 

with regard to the distance between the flywheel and the handrail 

was based upon any measurement. 

906 
Edward s. Kraemer, who has a Bachelor of Science Degree in 

Civil Engineering, and has been "associated" with crushers for 

over 20 years (Tr. 171), indicated that because the flywheel 

spins in a clock-wise direction, any exposed pinch point would be 

too far away to be contacted by one falling from the ladder. He 

also indicated that the center of gravity of one climbing the 

vertical ladder would be on the outside. He explained that 

accordingly, if one would fall or slip from the ladder, one would 

fall backward. Thus, any contact with the flywheel would consequently cause one to fall backwards and not be drawn into the 

flywheel. 

The two guards on the flywheel on the date in question, as 

depicted in Petitioner's Exhibits 1 and 2 and Respondent's 

Exhibit 3, would appear to guard against the hazard of a hand 

getting caught between the edge of the flywheel and the body of 

the crusher. A visual inspection of these photographs fails to 

indicate that these guards would prevent one from coming in 

contact with the surface of the face of the rotating flywheel. 

The testimony of Hoffman and Kraemer tends to establish that 

inadvertently coming in contact with the flywheel would not be 

likely. However, their testimony is not so persuasive as to 

establish that coming in contact with the flywheel is impossible. 

As such, it fails to contradict the opinion of Casey that it is 

possible for a worker to lose his balance, fail to grab the handrail, and come into contact with the flywheel. I thus conclude 

that the flywheel, "may be contacted" by a person using the 

vertical ladder in question. It is likely, ·as explained by 

Kraemer, that due to the position of one's center of gravity, as 

consequence of ascending and descending the vertical ladder, a 

hand coming into contact with the flywheel would be thrown away 

from it. This does not preclude the possibility, as indicated by 

Casey, that due to the high speed of the flywheel, a hand coming 

into contact with the flywheel might suffer debridement of the 

skin. 

Accordingly, I conclude that inadvertent contact with the 

flywheel by one using the vertical ladder "may cause injury to 

persons." Thus, I conclude that it has been established that, 

because the exposed face of the flywheel has not been guarded, 

Respondent herein violated 30 C.F.R. § 56.14001.~/ 

2; In light of this conclusion, and .Eor the reasons set forth in 

I, infra, I denied Respondent's Motion for a Directed Verdict 

which was made at the conclusion of the Petitioner's case and 

renewed again after both Parties had rested. 

907 
II. 

According to Casey the violation herein was significant and 

substantial, because an injury was reasonably likely to occur due 

to the £act that the hands of the crusher operator using the 

ladder come within 6 inches of the flywheel. He noted essentially the high probability of the occurrence of such an accident, 

as Respondent runs 2 work shifts per day, 5 days per week, and each 

crusher operator makes 4 round trips per shi.Et on the ladder. However, taking into account the following: Cl) the handrail is over 

8 inches removed from the flywheel in a lateral direction, and 

10 inches in front of the flywheel; (2) Respondent has been using 

crusher since 1974, all similar to the one in question with a 

flywheel only particularly guarded, without any incidences of one 

coming in contact with the flywheel; (3) the testimony of the 

crusher operator, Hoffman, that he has never come in contact with 

the flywheel, and (4) considering the effect of the center of 

gravity upon one falling and losing ones' balance, as iestified to 

by Hoffman and Kraemer; I conclude that it has not been established 

that the hazard of coming into contact with the flywheel would be 

reasonably likely to occur (cf. Mathies Coal Co., 6 FMSHRC 1, 

C Jan • 19 8 4 ) ) • 

According to Casey, coming in contact with the flywheel would 

cause debridement of the skin, and "the wheel actually throwing him 

off balance, and possibly flipping him and doing more severe damage, breaking bones or ••• (Tr. 128). I find this evidence not 

sufficient to support a conclusion that a debridement is a serious 

condition or that a severe injur~ such as a broken bone was reasonably likely to occur. Consequently, I conclude that any serious 

injury has not been established to be reasonably likely to occur. 

Therefore, I conclude that it has not been established that the 

violation herein is significant and substantial (See, cf. Mathies 

Coal Co., supra). 

III. 

Although it is possible that one using the ladder might slip 

and injure one's hand against the rotating unguarded surface of 

the flywheel, it has not been established that such an occurrence 

was likely to occur. Nor has it been established that any serious 

injury was reasonably likely to occur. Accordingly,. I conclude 

that the gravity of the violation herein was low. It .is clear 

that, as testified to by Casey, it was obvious that the surface of 

the flywheel was not completely guarded. However, in light of the 

fact, as testified to by Edward s. Kraemer and not contradicted, 

Respondent has never been cited Eot an unguarded flywheel in spite 

'of having crushers since 1974 with similar not completely guarded 

flywheels, and considering the fact that no one in the past has 

been injured by coming in contact with such a flywheel, I conclude 

that Respondent's negligence herein was low. I also have taken 

908 
into account the remaining statutory factors set forth in section 

llO{i) of the Act as stipulated to by the Parties, as well as the 

history of violations set out in Petitioner's Ex. 4. Taking all 

these into account I conclude that a· penalty herein of $20 is 

proper for the violation found herein. 

ORDER 

It is ORDERED that Citation No. 3060361 be amended to reflect 

the fact that the violation therein is not significant and substantial. It is further ORDERED that Respondent, within 30 days of 

this Decision, shall pay $20 as a civil penalty for the violation 

found herein. 

Distribution: 

Avram 

Administrative 

(f_ Weisberger ~ 

Law Judge 

Maureen M. Cafferkey, Esq., Office of the Solicitor, U. s. Department of Labor, 881 Federal Office Building, 1240 East Ninth 

Street, Cleveland, OH 44199 {Certified Mail) 

Willis P. Jones, Esq., Jones and Bahr.et, Suite 321 L.O.F. 

Building, 811 Madison Avenue, Toledo, OH 43624 {Certified Mail) 

dcp 

909 
FEDERAL MINE SAFETY AND HEALTH.REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAY 221989 

. . 

. . 

. . DISCRIMINATION PRCX:EEDING 

ON BEHALF OF MANUEL L. GOMEZ, : 

Docket No. WEST 89-184-D 

DENV CD 89-06 

Complainant 

v. 

MID-CONTINENT RESOURCES, 

INC. I 

Respondent 

. . 

. . 

. . 

. . 

: 

. . 

Docket No. WEST 89-213-D 

(Consolidated) 

Dutch Creek Mine 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

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

for Complainant1 

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

Glenwood Springs, Colorado, 

for Respondent. 

Before: Judge Morris 

These cases arise under the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seq., (the "Act"). 

Complainant has filed an application for reinstatment 

pursuant to Commission Rule 44, 29 C.F.R. § 2700.44 and he has 

further filed a discrimination complaint pursuant to section 

lOSCc> of the Act. 

After notice to the parties a hearing on the merits 

commenced in Glenwood Springs, Colorado on May 17, 1989. 

At the commencement of the hearing the parties moved for the 

consolidation of the above cases. Pursuant to Commission Rule 

12, 29 C.F.R. S 2700.12, the cases were consolidated. 

The parties further advised the judge that they had reached 

an amicable settlement of the issues in contest. 

The terms of the proposed settlement are that complainant 

will withdraw his application for temporary reinstatement and 

further waive any reinstatement and ·dismiss his claims herein. 

Further, in consideration thereof, respondent agrees to pay 

complainant the sum of $4,500.00. 

910 
Discussion 

Complainant appeared with the Solicitor, his counsel, and 

stated that he understood the settlement and he further requested 

that the proposal be approved. 

I find the settlement is proper particularly since all 

parties are in agreement. 

Accordingly, I enter the following: 

ORDER 

1. The settlement agreement is approved. 

2. The request for temporary reinstatement in WEST 89-184-D 

is dismissed. 

3. The complaint of discrimination in WEST 89-213-D is 

dismissed. 

4. Respondent is ordered to pay to complainant the sum of 

$4,500.00 within 7 days of the date of this decision. 

Law Judge 

Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.O. Drawer 790, 

Glenwood Springs, CO · 81602 (Certified Mail) 

/bls 

911 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 23, 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

. . 

. . Docket No. WEVA 89-73 

A. C. No. 46-01867-03781 

v. 

Blacksville No. 1 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent . . 

Appearances: 

Before: 

DECISION 

Jack E. Strausman, Esq., Office of the 

Solicitor, U. s. Department of Labor, 

Arlington, Virginia, for the Petitioner. 

Michael R. Peelish, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Judge Merlin 

When this case came on for hearing, the parties advised 

that they had reached a proposed settlement. Other cases set 

for hearing at the same time were heard qn the merits. 

The subject citation was issued for a violation of 

30 C.F.R. § 50.20Ca) because the operator did not submit the 

required form notifying MSHA of an accident within 10 working 

days. The form was submitted on the eleventh day. The 

original assessed penalty was $150. Operator's counsel 

advised that the operator now had decided it would pay the 

assessed penalty rather than go to a hearing. However, 

counsel pointed out that the one-day delay occurred during a 

holiday weekend. 

Based upon the foregoing I found that under the circumstances described, negligence was greatly mitigated. Accordingly, a penalty of $75 was assessed from the· bench and 

is hereby AFFIRMED. 

912 
It is ORDERED that the operator pay $75 within 30 days 

from the date of this decision. 

_:=-;----\~ Paul Merlin , Chief Administrative Law Judge 

Distribution: 

Jack B. Strausman, Esq., Office of the Solicitor, U. s. Departmept of Labor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 <Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal.Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Robert Stropp, Esq., UMWA, 900 15th Street, N.W., Washington, 

DC 20005 (Certified Mail) 

/gl 

913 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 231989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 88-30 

A. C. No. 18-00621-03624 

: Mettiki Mine 

METTIKI COAL CORPORATION, 

Respondent 

. . 

DECISION 

Appearances: Anita D. Eve, Esq., Office of the Solicitor, 

Department of Labor, Philadelphia, Pennsylvania, 

for the Secretaryi · · 

Susan E. Chetlin, Esq., Jane C. Baird, Esq., 

Crowell & Moring, Washington, DC, for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In this case, the Secretary (Petitioner) seeks a Civil 

Penalty for an alleged violations of the Operator (Respondent) of 

30 C.F.R. § 75.326. Pursuant to notice, this case was heard in 

Falls Church, Virginia, on February 14, 1989. At the hearing, 

Philip Martin Wilt, Barry Lane Ryan, and Dennis Deaver testified 

for Petitioner. John Pritt, Carl Randal Johnson, and Mark 

Carpenter testified for Respondent. Proposed Findings of Fact 

and Briefs were filed by Petitioner and Respondent on April 24, 

1989. Respondent's filed a Reply Brief on May 12, 1989. 

Respondent, on April 24, 1989, filed a Motion to Correct 

Hearing Transcript. Respondent, in its Motion, indicated the 

Petitioner did not object.to the Motion, and it is hereby 

granted. 

Stipulations 

At the hearing, the following stipulations were entered 

into: 

1. That Mettiki Coal Corporation is the owner and operator 

of the Mettiki Mine located in Deer Park, Garrett County, 

Maryland. 

914 
2. That Mettiki Coal Corporation and Mettiki Mine are subject to the jurisdiction of the Federal Mine Safety and Health 

Act of 1977. 

3. That the Mettiki Mine was opened after March 30, 1970. 

4. The Administrative Law Judge has jurisdiction over this 

case pursuant to section 105 of the Act. 

5. A copy of the Order was properly served by Philip M. 

Wilt, a duly authorized representative of the Secretary, upon an 

agent of the Respondent at the date, time and place stated 

therein, and may be admitted into evidence for the purpose of 

establishing its issuance, and not necessarily for the truthfulness or relevancy of any statements asserted therein. 

6. That the assessment of a civil penalty in this proceeding 

will not affect Respondent's ability to continue in business. 

7. The appropriateness of the penalty, if any, to the size 

of the coal operator's business should be based on the fact that 

Respondent's annual production tonnage is 2,294,859. 

8. That Mettiki Mine was assessed a total of 382 violations 

over 547 inspection days for a 24-month period immediately preceding the issuance of the order involved in th~s case. 

9. That, in fact, air from the belt haulage entry was 

ventilating at the working face on February 22, 1988, at the time 

and place in which Philip Wilt indicated pursuant to Order 

No. 3115962. 

Findings of Fact and Discussion 

I. 

On February 22, 1988, while inspecting the E2 Section of 

Respondent's Mettiki Mine, Philip Martin Wilt, a MSHA Inspector, 

noted that a check curtain at the feeder to the belt had an 

opening in the left bottom corner, which he measured as 5 square 

feet, and additionally had more than five openings. Wilt termed 

the curtain to be "very poorly" and "loosely" installed (Tr. 24), 

and said that he measured 1300 cubic feet of air going through 

the curtain's opening. He issued a 104Cd){2) Order, citing 

Respondent with allowing air from the conveyor belt entry to 

enter into and ventilate the active working section. Respondent 

concedes that air from the belt did enter the working section. · 

Accordingly, it is found that Respondent herein did violate 

section 75.326, supra, which, in essence, provides that air from 

the belt entries shall not be used to ventilate active working 

places. 

915 
II. 

According to Wilt, if an ignition would have occurred in the 

belt line, the resulting dark smoke and gases could have entered 

into the working areas causing "zero" (Tr. 39) visibility, and 

the possibility of miners working there being overcome by the 

gases. Barry Lane Ryan, a MSHA Supervisor, essentially agreed 

with Wilt's assessment, and in addition, indicated that in a belt 

entry there are ignition sources such as cables and belt rollers. 

Also, according to Ryan, a belt rolling over frozen rollers, or 

cutting into timbers that are too close to the belt line, creates 

friction which is a source of ignition. Ryan also indicated that 

coal dust is generated by the belt movement which would then, if 

air is flowing from the belt entry to the face, go to the face, 

exposing miners to coal dust. 

At the time the Order in question was issued, there was no 

production on the section, although the belt was in operation. 

According to Mark Carpenter, Respondent's section foreman, who 

arrived on the section for the start of the shift along with Wilt 

and the other miners in the section, indicated that when he went 

to make his fire boss inspection, the miners on the shift were at 

the tool car, which was located one cross cut inby the face and 

between the intake entry and the number four return entry. As 

such, the weight of the evidence does not establish that at the 

time of the violation there were miners at the face exposed to 

air from the belt entry. Ryan's testimony with regard to the 

effect of the instant violation, was merely hypothetical, as he 

did not observe the conditions on the date in issue. Although, 

at best, the testimony of Petitioner's witnesses tends to establish that a health hazard to miners could have been contributed 

to by the violation herein, it fails to establish that there was 

any reasonable likelihood of a hazard occurring, nor a reasonable 

likelihood that it would result in injury of a reasonably serious 

nature. As such, I find it has not been established that the 

violation herein was significant and substantial Cc.f. Mathies 

Coal Co., 6 FMSHRC l (January 1984)). 

III. 

Wilt indicated that when he observed the curtain in question 

on February 22, 1988, it was "loosely" installed (Tr. 24), had 

more than five openings, with one in the left hand corner being 

5 feet square, and opined that it was an "old curtain", and in 

"poor" condition (Tr. 52). In this connection, Wilt indicated 

that he relied upon his review of a Daily Section and Time Report 

(Exhibit R-3), which indicated that on the previous shift a curtain was hung at ths feeder in an "elapsed time" of 8 minutes. 

According to Wilt, he did not see any evidence of rocks or coal 

having fallen from the ridge of the roof in the area of the 

916 
feeder curtain. Essentially Wilt opined that the violation was 

due to Respondent's unwarrantable failure, based on 11 ••• the 

condition and in the way the.curtain was installed" (Tr. 41). He 

also indicated, essentially, that he considered Respondent negligent based on the above factors, as well as the fact that in the 

preceding quarter he issued three citations for violations of the 

standard at issue. 

Ryan indicated that he essentially agreed with Wilt's conclusions with regard to Respondent's negligence, and the fact that 

the violation resulted from its unwarrantable failure. 

Essentially, Ryan indicated that his opinion in this regard was 

based upon the same factors testified to by Wilt. He also considered that it was "unreasonable" for the "high" amount of air 

in the belt entry to be regulated through an 8 inch square 

regulator (Tr. 61). · 

According to the uncontradicted testimony of John Pritt, 

Respondent's section foreman for the day shift, the curtain in 

question was installed on February 22, 1988, at the commencement 

of the day shift at approximately 8:00 a.m., by being wired to 

roof bolts at the top of the roof, and was nailed to rib boards 

every 4 feet and to the coal in the rib. He indicated that there 

were no major tears in the curtain when it was installed. He 

indicated that he had installed the curtain because in the preceding shift the belt and its feeder was moved to a side dump 

position from an end dump position. According to Pritt, it took 

three persons to hang the curtain, and that the 8 minutes indicated on the Daily Section and Time Report was only an estimate 

which was arr'ived at after the shift was completed at 3:00 p.m •• 

Pritt indicated that when he left the section at about 2:30 p.m., 

on February 22, he did a preshift examination for the next shift 

and the curtain was tight without any major tears and "in good 

shape" (Tr. 114). He also indicated, essentially, that the air 

was checked at the feeder at that time and was going in the right 

direction. He described the curtain, when he left the section, 

as "hanging straight up and down" without any force of air in 

either direction (Tr. 128). He indicated that the belt was 

running when he left, and that power was-subsequently shut off on 

the way out. 

I have taken into account Wilt's testimony that he did not 

observe any evidence of rocks having fallen from the ribs or roof 

in the area of the feeder. I find this testimony insufficient to 

contradict the testimony of Pritt that when he left the section 

at the end of the day shift at approximately 2:30 p.m., the check 

cttrtain was "tight" and "in good shape" (Tr. 114). (In this 

connection I note that even Wilt agreed that a curtain could come 

917 
loose in seconds if there were rocks on the feeder or if people 

walk though the curtain. The evidence indicates that miners do 

indeed travel through the curtain feeder). 

I also find no contradiction to Carpenter's testimony that 

upon arrival on the section in the afternoon shift along with 

Wilt, he went to perform his fire boss inspection, which usually 

includes the belt entry feeder area, and had not yet reached 

that area by the time Wilt issued the Order in question. Thus, 

it appears that the loosening of the curtain occurred between the 

time Pritt left the section at 2:30 p.m., and the time it was 

observed by Wilt at 3:45 p.m., and before Carpenter had a chance 

to discover it in the course of his fire bossing. Thus, 

Respondent had no opportunity to find and tighten the curtain 

before Wilt issued the Order in question. 

Taking all the above into account, I conclude it has not 

been established that the condition, and specifically the air 

flow observed by Wilt at the beginning of the afternoon shift, 

was the result of any aggravated conduct on the part of 

Respondent. Accordingly, I find that it has not been established 

that the violation herein resulted from Respondent's unwarrantable 

failure. (Emery Mining Corp., 9 FMSHRC 1997 (1987). 

IV. 

Inasmuch as the evidence establishes that as a consequence 

of the violation herein, ah ignition in the belt area could 

result in miners at the working faces being subjected to gases 

and dense smoke, I find that the violation herein to be of a 

moderately serious nature. Based upon the testimony of Pritt, as 

discussed above, III., infra, I find that the violative condition 

did not exist at the end of the day shift when Pritt made the 

last examination. The record does not establish the cause of the 

violative condition, but it is clear that it occurred sometime 

between Pcitt's last inspection, and the time it was noted by 

Wilt. It is significant to note that Carpenter, who had the 

responsibility of inspecting the section prior to the commencement of the afternoon shift, was on his round, and had not yet 

had an opportunity to inspect the feeder area before it was cited 

by Wilt. Taking into account all the above, I conclude that 

Respondent herein was negligent to only a low degree. I also 

have considered the various other factors set forth in section llOCi) of the Act, as stipulated to by the Parties, and I 

adopt their stipulations. Based on all the above, I conclude 

that a penalty of $100 is appropriate for the violation herein of 

section 75.326, supra. 

918 
ORDER 

It is hereby ORDERED that Order No. 3115962 be amended to a 

section 104(a) Citation to reflect the fact that the violation 

cited therein was naither significant and substantial, nor was it 

the result of Responden~'s unwarrantable failure. It is further 

ORDERED that Respondent shall pay $100, within 30 days of this 

Decision, aa civil penalty for the violation found herein. 

It is further ORDERED that the Transcript of the hearing in 

this matter be amended to reflect the changes set forth in 

Respondent's Motion to Amend Transcript filed on April 24, 1989. 

Avram ~~ Weisberger 

Administrative Law Judge 

Distriblltion: 

Anita o. Eve., Esq., Office of the Solicitor, u. 5. Departm~nt of 

Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Susan E. Chetlin, Esq., Jane C. Baird, Esq., Crowell & Moring, 

1001 Pennsylvania Avenue, NW, Washington, DC 20004-2505 

(Certified Mail) 

dcp 

919 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 241989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v •. 

. . 

. . 

. . 

JOLIET SAND AND GRAVEL COMPANY, : 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 88-138-M 

A.C. No. 11-02349-05505 

Rockdale Quarry 

DECISION APPROVING SETTLEMENT 

Before: Judge Maurer 

On May 18, 1989, the Secretary of Labor on behaif of the 

parties to this action, filed a motion to approve the settlement 

negotiated between them. At issue in this case are two 

violations, originally assessed at $4000 in the aggregate. 

Settlement is proposed at $2900. 

The above-referenced violations were discovered as a result 

of an investigation into a fatal accident which occurred on 

May 17, 1988, killing a crushing machine operator at the mine. 

More particularly, the operator was ~ited for a violation of 

30 C.F.R. § 56.11001 because safe access had not been provided to 

the controls of the Stanley rook breaker at the jaw crusher. The 

fatality occurred because the machine operator attempted to climb 

up to the controls, slipped and inadvertently grabbed one of the 

control levers. This swung the hammer around, struck another 

workman on the head and pinned the machine operator against a 

metal guard and killed him. 

The operator was also cited for a violation of 30 C.F.R. 

§ 56.14026 because the machine was not provided with a start and 

stop electricial control on the boom. This violation is 

significant and substantial because the fatality occurred when 

the machine operator could not stop the swing hammer. 

I accept the parties' representations and approve the 

settlement. 

ORDER 

WHEREFORE, the motion for approval of settlement is GRAN·rED, 

and it is ORDERED that respondent pay a penalty of $2900 within 

30 days of this order. 

920 

Roy J~· Maurer 

Admini trative Law Judge u· 
Distribution: 

Rafael Alva~ez, Esq., U.S. Department oi Labor, Office of the 

Solicitor, 230 South Dearborn Street, 8th Floor, Chicago, 

IL 60604 (Certified Mail) 

Mr. George Comerford, Jr., President, Joliet Sand & Gravel 

Company, P.O. Box 254, Joliet, IL 60434 (Certified Mail) 

/ml 

921 
FEDERAL MINE SAFETY AND HEALTH'REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 2ao. 1244 SPEER souLEvARD M nv Z 4 \ DENVER, CO 80204 H l 9 89 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

NEVADA MINERAL PROCESSING, 

Respondent 

. . 

. . 

. . 

. . 

: 

. . 

. . 

. . 

: 

: 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 88~273-M 

A.C. No. 26-02050-05501 

Docket No. WEST 88-278-M 

A.C. No. 26-02050-05502 

Docket No. WEST 88-306-M 

A.C. No. 26-02050-05503 

: Nevada Mineral Mill 

DECISION 

Appearances: George B. O'Haver, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, California, 

for Petitioner; 

Annelie Hoyer, Secretary-Treasurer, Nevada Mineral 

Processing, Mina, Nevada, 

for Respondent. 

Before: Judge Lasher 

This matter arises upon the filing by the Secretary of Labor 

of three petitions for penalty assessment in the three subject 

dockets which collectively contain 7 Citations issued during the 

month of March 1988, at Respondent's operation located in the 

vicinity of Mina, Nevada. 1/ 

1/ With respect to docket No. WEST 88-306-M, which originally 

contained Petitioner's request for assessments for 2 Citations, 

Nos. 3070665 and 3070679, copies of these 2 Citations were 

attached to the Petition. However, other paperwork attached to 

the petition showed #3070679 involved a violation of 30 C.F.R. 

§ 56.200026., whereas the Citation itself alleged a violation of 

"30 C.F.R-.-56.2000le". At the hearing, after the 2 parties had 

reached meaningful stipulations and given testimony regarding the 

issues and the seven violations involved, it became apparent that 

Citation No. 3070679 was not one of the Citations they understood 

was involved in Docket WEST 88-306-M. Rather, it was Citation 

No. 3070678, which alleged a violation of 30 C.F.R. 56.13015Ci). 

This also did not jibe with some of the paperwork {specifically, 

page 2 of the "Proposed Assessment") attached to the Petition. 

Counsel for the Solicitor indicated that Citation No. 3070678 

was, in his fi.les, the second Citation contained in Docket 

88-306-M:--since the parties had prejudicially acted on this 

belief both before and during the hearing, the Petitioner's 

petition was amended at hearing to show Citation 3070678 instead 

of 3070679, and copies of 3070678 were substituted for 3070679 as 

attachments to the petition in the Commission's file. 

922 
Contentions of the Parties 

At the outset of the hearing, the parties stipulated that 

the seven violations charged did occur (T. 6, 7). The 

Respondent's primary defense raised the question whether its 

milling operation (which allegedly was under construction but not 

in production at the time of the subject inspection in March, 

1988) was within the jurisdiction of MSHA's enforcement 

authority and the coverage of the 1977 Mine Act (T. 11, 13). 

Respondent was also concerned that it was not allowed the 

courtesy of a CAV (Compliance Assistance Visit) for its new 

plant. Petitioner contended that 2 of the Citations (numbered 

3070667 and 3070675 in Docket WEST 88-278-M) were so-called 

"significant and substantial" (S&S) violations and presented 

evidence on this issue. The remaining requirement is the penalty 

assessment for the seven violations involved. 

Jurisdictional Matters 

The first question is whether Respondent's custom mill is a 

"mine" covered by the Act. Respondent is a Nevada corporation 

with offices in 2 states, i.e., in Mina, Nevada, and Blaine, 

Washington. It does not engage in actual extraction of the gold 

and silver ore processed in its custom mill, but processes such 

for "small miners in the vicinity" (T. 48, 49). 

During the period March 21 through 24, 1988, MSHA Mine 

Inspector John F. Myer, at the direction of his supervisor, 

conducted an inspection of Respondent's operation -- which he 

described as a "small mill" consisting of a "crusher, mill, 

conveyors, leach solution tank system, a lab, a small shop and an 

assay lab." (T. 18, 19, 27). At the time of inspection, 16 

employees were working (T. 19, 72) and the operation was in the 

final stages construction. Inspector Myer observed the following 

kinds of work being carried on: · 

" ••• there was some welding being done outside on some 

conveyors and an ore bin that feeds the crusher. There 

was some electrical work being done in the mill. There 

was assaying being done in the lab and there was shop work 

being done." (T. 19, 20). 

Inspector Myer was advised by Respondent's Project Manager, 

Steven York, that some of the ore in the 15 to 20 ton stockpile 

was from a mine in California CT. 20, 21). 

At the time of inspection the mill itself was not producing 

but its assay lab was operating. Thus the Inspector testified: 

"The mill itself wasn't operating. The assay lab was 

operating. They were prep sampling. They had a bucking 

923 
room with a small Bilco Chipmonk crusher, pulverizer, 

furnace for fire assay and that portion of the mill was 

operating, assaying samples, custom samples, for miners in 

the area. I don't really know where the ore came from but 

it was being assayed there." (T. 19) (emphasis added) 

The work in the "bucking room" was described as follows: 

"The bucking room is where they get the ore, the material, 

and they run it through a chipmonk crusher. That's a small 

crusher that they do just maybe a sack full of ore and it 

runs through the crusher, then it's taken out of there and 

put in a pulverizer. It's pulverized to almost powder and 

then it's put in crucibles and put in the furnace, along 

with lead and some flux to determine the content of the 

gold or silver in the ore." (T. 20). 

Section 3(h)(l) of the Act, 30 u.s.c. § 802Ch){I), defines a 

"mine" in the following language: 

"Coal or other mine" means (A) an area of land from which 

minerals are extracted * * * CB) private ways and roads 

appurtenant to such area, and (C) lands * * * facilities, 

equipment * * * or other property * * * used in 1 or to be .. 

used in, or resulting from the work of extracting such 

materials from their natural deposits * * *, or used in, 

or to be used in the milling of. such minerals, or the work 

of preparing coal or other minerals, ••• " 

[Emphasis added]. 

Under this definition, it is clear that a "mine" includes 

facilities and equipment "used" in the work of milling or preparing minerals, such as Respondent's custom mill. 

A preparation facility or milling facility need not have a 

connection with the extractor of the mineral in order to be 

subject to the Act's coverage. Carolina Stalite Co., 6 FMSHRC 

2518, 2519 (1984); Alexander Brothers, Inc., 4 FMSHRC 541, 544 

(1982). Further, the construction of the mill itself is an 

activity covered under the Act. Bituminous Coal Oper. Ass'n v. 

Secretary of Interior, 547 F. 2d 240, 244, 245 Cl977). In any 

event, on the inspection day, Respondent's "bucking room" was in 

operation. Thus, while the mill itself was not in full 

production, that part of the custom mill was in operation and ore 

was in fact being processed for the purpose of assaying. It is 

thus concluded for these independent reasons that Respondent's 

mill was a mine covered by the Act at all material times. 

Commerce 

With respect to the question whether Respondent's operation 

"affects commerce", Judge August F. Cetti, pointed out in his 

924 
decision in Secretary v. Cobblestone, Ltd., 10 FMSHRC 731, 733 

(June, 1988) that the use of the phrase "affect commerce" in the 

Mine Act triggers a broad reach of regulatory coverage: 

"Looking first to the Act itself, Section 4 of the Act 

states that: 

"Each c9al or other mine, the pr9(iucts of which enter 

commerce, or the operat~ons or products of which affect 

commerce, and each operator of such mine and every miner 

in such mine shall be subject to the provisions of this 

Act." 

."Commerce" is defined in section 3(b) of the Act as 

follows: 

"Trade, traffic, commerce, transportation or communication among the several states, or between a place in 

a state and any place outside thereof, or within the 

District of Columbia, or a possession of the United 

States, or between points within the same state but 

through a point outside thereof." 

The use of the phrase "which affects commerce" in Section·· 

4 of the Act, indicates the intent of Congress to exercise 

the full reach of its constitutional authority under the 

commerce clause. See Brennan v. OSHRC, 492 F.2d 1027 (2nd 

Cir. 1974)1 U.S. v. Dye Construction Co., 510 F.2d (10th 

Cir. 197.S)~ Polish National Alliance v. NLRB, 332 U.S. 643 

(1944)1 Godwin v. OSHRC, F.2d 1013 (9th Cir. 1976)." 

Here, Respondent, which has offices in two states (Nevada 

and Washington), had ore in its stockpile which had been obtained 

from a mine in California. Even if all the ore Respondent were 

to process was obtained from the state of Nevada and was not 

shipped out of Nevada after processing such circumstance would 

not insulate it from affecting commerce since its mere presence 

in the intrastate market would have an effect on the supply and 

price of such mineral in the interstate market. See Marshall v. 

Kilgore, 478 F. Supp. 4 (E.D. Tenn. 1979)1 Fry v. U.S., 421 U.S. 

542, 547 (1975). 

It is concluded that Respondent is engaged in a mining 

activity affecting commerce and that such is covered by the Mine 

Act. 

CAV Rights 

Respondent contends that it should not be assessed penalties 

since it was not afforded the right to request a CAV (Compliance 

Assistance Visit) prior to the inspection. At the hearing, 

Inspector Myer explained the nature of CAVs: . 

925 
Q. What ia the policy of your agency, and can you explain 

for purposes of the record what a CAV inspection is? . 

A. A CAV inspection is a Compliance Assistant Visit. As 

an inspector, we go to the mine, when they're ready to go 

into production before they produce and we make a courtesy 

tour and we inspect the mines and any hazards or corre9tions 

that need .to be made, we issue written notices which are 

non-penalty notices that are to be corrected and that 

they're not assessed. And we do this by written notice 

prior to their startup that they request. 

Q. Your testimony is that in order to be a CAV inspection, 

it has to be requested in advance by the operator, is 

that your testimony? 

A. Yes. 

Q. And is that the policy of the agency as.dictated by 

your head off ice in Washington, is that correct? 

A. As far as I know, yes. CT. 24) 

The Inspector also convincingly explained why Respondent was 

not given a CAV prior to the inspection: 

"Q. Mr. Myer, talking about the internal memo, why couldn't 

respondent not qualify under your internal guidelines for 

a CAV inspection? · 

A. Well, number one, we never were notified, or a request 

sent to us in writing that they wanted one. Nor were we 

notified that they were a mill under construction. 

Q. So your testimony is that you had no knowledge of their 

operations until you were told by your supervisor to go out 

and do this inspection, is that your testimony? 

A. That's right." CT. 27) 

With respect to this question, it is first noted that the 

•compliance assistance visit" process CEx. P-2) is not a mine 

operator's absolute right and such is not provided for in the Act. 

Secondly, even under MSHA's internal CAV policies, since it was 

not notified by Respondent that the mill (mine) was under construction, there was no opportunity for MSHA, had it chosen to 

exercise its discretion and grant a CAV, to conduct such. 

Finally, Respondent was apparently unaware of such process at the 

time CT. 23-24, ·s4-56 >, and did not request a CAV. On the other 

hand, the mine in question is clearly subject to the Mine Act and 

926 
inspections thereof.!.£! mandated by the Act. Section 103(a), 30 

u.s.c. S 815. In conjunction therewith, Sections 104(a) and 

llO(a) of the Act reguire that a Citation be issued and a penalty 

be assessed when a violation occurs. See Old Ben Coal Co., 7 

MSHRC 205, 208 (1985). Accordingly, the contention of Respondent 

based on its failure to receive a prior CAV is found to lack 

merit and is rejected. 

"Significant and Substantial" Allegations 

The Inspector designated two of the Citations as involving 

"significant and substantial" CS & S) violations, i.e., Citations 

numbered 3070667 and 3070675 in Docket No. WEST 88-278-M. 

Citation No. 3070667 charges a violation of 30 C.F.R. § 56.9087, 

to wit: 

"There was no audible reverse signal alarm on the Clark 

275 B 2/ front end loader working in the mill yard area. 

Four employees were in the area on foot. The size of the 

loader caused an obstructed view to the rear. No spotter 

or signal man was being used to signal the operator when 

it was safe to back up." 

30 C.F.R. § 56.9087, relating to "Audible warning devices 

and back-up alarms", provides: 

"Heavy duty mobile equipment shall be provided with audible 

warning devices. When the operator of such equipment has 

an obstructed view to the rear, the equipment shall have 

either an automatic reverse signal alarm which is audible 

above the surrounding noise level or an observer to signal 

when it is safe to back up." 

Inspector Myer testified that the subject front end loader 

is considered heavy duty mobile equipment, i.e. it weighs approximately 61,000 pounds with tire height of approximately 7 

feet. He said that ·because of the height of the equipment the 

ground behind it is not visible to the rear for "quite aways," 

i.e., 25-30 feet CT. 36). While the loader was equipped with an 

audible signal alarm, it was not operable and there was no signal 

man being used. Four miners, in addition to the loader operator, 

were working in the area. 

Inspector Myer described the hazard as follows: 

2/ Respondent pointed out at the hearing CT. 66) that the 

correct number is 275A rather than 275B. 

927 
"A. Well, people on foot, no signalman, and they're engrossed in their work and the loader backs up they're very 

apt not to see it. The operator cannot see directly behind 

you and they can be run over, backed over. 

Q. Would death or serious injury result. 

A. Very definitely the size of this loader and the weight. 

It would be fatal. Fact of the matter our latest fatality 

in Neva-da is with a front-end loader backing over an 

employee." (T. 35) 

The Inspector also testified that two of the miners were 

working alongside the loader "because they were going with him to 

help him unload what he was carrying." Although the other two 

miners were working separately, the loader "probably passed" 

within six feet of them (T. 37). 

Citation No. 3070675 charges an infraction of 30 C.F.R. 

§ 56.14001: 

"There was no guard covering the flywheels and V-Belts and 

pulleys on the Bilco Chipmunk Jaw Crusher in the bucking 

room. The wheels were 51 inches around with 4 spokes in the 

wheels. The center or hub of the wheel was 4-ft up from 

the floor level. The employee bucking samples was exposed 

to the moving wheel when feeding· samples into the crusher." 

30 C.F.R. § 56.14001 provides: 

"Gears, sprockets; chains; drive, head, tail and takeup 

pulleys; flywheels; couplings; shafts; sawblades; fan 

inlets; and similar exposed moving machine parts which may 

be contacted by persons and which may cause injury to 

persons, shall be guarded." 

On the day of inspection, Inspector Myer observed an exposed 

flywheel on the Bilco crusher in the bucking room (T. 38). He 

described the crusher as "a small jaw that's used to sample small 

amounts of ore for assay purposes". It is driven by V-Belt.s and 

pulleys and a flywheel on each side. The Inspector said the 

flywheel travels at a "good speed" and that it is fed by 

•reaching over the flywheel to put ore into the crusher to feed 

the crusher" (T. 38-39). He actually observed an employee 

operating the crusher. The employee was required to stand at one 

side of the crusher which was in a small, approximately 6 foot by . 8 foot, room. The Inspector indicated that" ••• you could only 

come up to the one side of it where ••• the employee had to put 

the ore in" (T. 39). His testimony regarding the nature of the 

hazard and probabilities follows: 

928 
"A. Well, its an unguarded moving machine part. Its 

accessible to employees that were working right, right at 

the, right at it and having to reach over. 

Q. They could get their arm caught in the flywheel? 

A. Flywheel or the V-Belts and pulleys, ei~her one. 

Q. What type of any in.jury· would occur from that type of 

an accident? 

A. I would--- permanent disability you could lose an arm. 

You. could lose fingers • 

. Q. Do these accidents occur frequently in this area? 

A. Yes, probably one of the highest of accidents are due 

to injuries caused by moving machine parts in the mining 

industry." (emphasis added) 

(T. 39-40) 

A violation is properly designated S & S "if, based upon the 

particular facts surrounding the violation there exists a 

reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature." Cement 

Division, National GyPsum Co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1 (1984), the Commission 

listed four elements of proof for S & S violations: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National GyPsum the Secretary of Labor must prove: Cl) 

the underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard--that is, a measure of danger 

to safety--contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result 

in an injury; and (4) a reasonable likelihood that the 

injury in question will be of a reasonably serious nature. 

In the United States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1129 (1985), the Commission expounded thereon as follows: 

We have explained further that the third element of the 

Mathies formula "requires that the Secretary establish 

a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury." 

U.S. Steel Mining Co, 6 FMSHRC 1834, 1836 (Autust 1984). 

We have emphasized that, in accordance with the language 

of section 104(d)(l), it is the contribution of a violation 

929 
to the cause and effect of a hazard that must be signif icant and substantial. U.S. Steel Mining Company, Inc., 6 

FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

It is concluded that the Petitioner carried its burden of 

proof under Mathies, supra, with respect to both Citations. 

Thus, the violations themselves were initially conceded, and both 

clearly contributed a measure of danger to the miners who were 

exposed to the hazards described and specified by the Inspector. 

Both violations, had the hazards actually come to fruition, would 

have resulted in serious bodily harm to the miners jeopardized. 

Indeed, the violation described in Citation No. 3070667 might 

well have resulted in a fatality. The record is clear that with 

respect to both violations the miners exposed worked at least at 

times in close proximity to the hazard. With respect to the 

"inoperable backup alarm" violation, vision was obstructed for 

some 25 feet behind the loader. With respect to the unguarded 

crusher violation, the operator thereof was required to work 

•right at" the hazard in a small confined space and "reach over" 

moving machine parts when feeding the crusher. · I therefore find 

and infer from the unrebutted evidence of Petitioner cited above 

that both hazards which were significantly and substantially 

contributed to by the violations were reasonably likely to occur. 

Accordingly, both violations are found to be "significant and 

substantial." 

Assessment of Penalties 

Petitioner, at hearing, conceded that Respondent proceeded 

in good faith to abate all seven violations after notification 

thereof (T. 41}. Respondent conceded that penalties assessed at 

the monetary levels proposed by the Secretary would not jeopardize its ability to continue in business (T. 69). Presumably, 

since this is a new operation evidence of previous violations was 

not proffered and it is inferred that Respondent has no prior 

violations. In terms of size, Respondent is small (T. 42) having 

16 employees when the Citations were issued and 9 at the present 

time. Tonnage and/or sales figures were not available since 

Respondent had not commenced normal "production" as of the time 

of hearing. In connection with the remaining mandatory penalty 

assessment criteria, negligence and seriousness, the record with 

respect to the five non-S & S violations is not remarkable. In 

view of the strength of Respondent's belief that it was not a 

mine subject to the Act, and that if it had been it would have 

expected a CAV inspection, its negligence in committing all 

sevenviolations is found to be of a relatively low degree. Also, 

all seven citations were issued on its first inspection. The two 

S & S violations are found to be serious. 

After consideration of the foregoing criteria, the penalties 

proposed by the Secretary for the seven violations involved (five 

930 
of which are $20 single penalty assessments) are found reasonable 

and appropriate, and are here assessed as follows: 

Citation No. 

3070664 

3070665 

3070676 

3070677 

3070678 

3070667 

3070675 

TOTAL 

ORDER 

Penalty 

$ 20.00 

20.00 

20.00 

20.00 

20.00 

85.00 

68.00 

$253.00 

1. The Citations involved in this matter, including the 

"significant and substantial" designations on Citations numbered 

3070667 and 3070675, are affirmed. 

2. Respondent, if it has not previously done so, is ordered 

to pay the Secretary of Labor within 30 days from the date hereof 

the sum of $253.00 as and for the civil penalties above assessed. 

Distribution: 

~~4~~# Michael A. Lasher, ~r. 

Administrative Law Judge 

George B. O'Haver, Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson Street, Suite 1020, San Francisco, CA 

94119-3495 (Certified Mail) 

Ms. Annelie Hoyer, Secretary-Treasurer, Nevada Mineral 

Processing, P.O. Box 167, Mina, NV 89422 (Certified Mail) 

/bls 

931 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

L & L G'RAVEL, 

Respondent 

May 30, 1989 

: 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 89-2-M 

A. C. No. 25-01093-05501 

Portable Dredge No. 1 

AMENDED ORDER OF DEFAULT 

Before: Judge Merlin 

This case is before me pursuant to the Commission's Order 

dated May 30, 1989. 

At the time the original default order, dated April 20, 

1989, was issued, the Solicitor had failed to advise that one of 

the three citations involved in his 'petition had been vacated. 

The assessed penalties for the ,remaining two citations are $74. 

Accordingly, judgment by default is entered in favor of the 

Secretary and the operator is ORDERED TO PAY the sum of $74 

immediately. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Stephen G. Reynolds, Esq., Office of the Solicitor, U. S. 

Department of Labor, Room 2106, 911 Walnut Street, Kansas City, 

MO 64106 (Certified Mail) 

Mr. Lewis L. Herbough, L & L Gravel, Box 585, Valentine, NE 

69201 (Certified Mail) 

/gl 

932 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 3 0 \989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

·Petitioner 

v. 

WILLIAMS MECHANICAL AND 

WELD I NG, INC. , 

Respondent 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. SE 88-72-M 

A.C. No. 38-00007-05505 M5K 

Giant Cement Company 

DECISION 

Appearances: Ken S. Welsch, Esq., Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia, for 

the Secretary of Labor csecretaiy>~ T.E. Peterson, 

Esq., Charleston, South Carolina, for Williams 

Mechanical & Welding, Inc. (Williams). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks a civil penalty in this proceeding for 

an alleged violation of the mandatory safety standard in 30 

C.F.R. S 56.l6002(2)(c). Pursuant to notice, the case was heard 

in Charleston, South Carolina, on April 18, 1989. Thel Hill 

testified on behalf of the Secretary. John Infinger, Burt Ardis, 

Ernest H. Williams and Franklin Neal testified on behalf of 

Williams. At the conclusion of the hearing, counsel for both 

parties orally argued their positions on the record, and each 

waived his right to file a post hearing brief. Based on the 

entire record and considering the contentions of the parties, I 

make the following decision. 

FINDINGS OF FACT 

Williams was a contractor doing maintenance and repair work 

for Giant Cement Company. Giant operated a limestone quarry and 

cement plant in Dorchester County, South Carolina. Williams 

stipulated that it operated as an independent contractor at a 

mine site. It had approximately 25 employees. The Secretary 

introduced a record of Williams' history of prior violations 

which shows a single violation of a mandatory safety standard • . On February 25, 1988, Williams was engaged in cleaning out a 

933 
gypsum storage bin, removing the buildup of consolidated gypsum 

from the bin using a jackhammer. It had been engaged in this 

work for several weeks prior .to February 25, 1988. The bin was 

constructed of concrete, and measured 24.feet in diameter and 46 

feet in height. It had a capacity of approximately 675 tons. 

On February 25, 1988, three men were working at the bin 

cleaning task, two inside the bin, Freddie Mack and 

Tyrone Gardner, and one on top of the bin, Franklin Neal, tending 

a lifeline which was attached to one of the men in the bin, 

namely, the one not operating the jackhammer. A lanyard, 

approximately six feet long, was hooked to his safety belt and to 

the jackhammer operator's belt. Gardner and Mack alternated J 

using the jackhammer: the one not using the ha1nmer was secured 

to the lifeline from the top of the bin1 the one using the hammer 

was attached by a lanyard to the first employee. 

At about 3:00 p.m., Gardner suggested that they start 

cutting the gypsum from the bottom of the bin rather than from 

the top. His foreman agreed and directed him to go up into the 

bin from below and "get everything down and start from the 

bottom." (Tr. 40) Gardner reentered the bin, took the 

jackhammer from Mack and began cutting the gypsum. Gardner did 

not attach a lifeline to his belt, nor did he attach the lanyard 

from Mack's belt to his own. Mack had the lifeline attached to· 

his belt. At about 3:20 p.m., Gardner slipped and was pinned 

between a mass of gypsum and the side of the bin. His body was 

crushed and he was pronounced dead at approximately 4:00 p.m. when his body was removed from the bin. 

Gardner had just turned twenty years of age, and had been 

employed by Williams for about two months. He had been working in the bin for about 30 days. Mack no longer works for Williams, 

and Williams was unable to subpoena him to testify at the hearing. Neal testified that he heard a noise when Gardner slipped and 

heard him say he was trapped. However, he could nQt see Gardner 

from the top of the bin. · 

REGULATION 

30 C.F.R. § 56.16002 provides in part: 

Ca) Bins, hoppers, silos, tanks, and surge piles, where 

loose unconsolidated materials are stored, handled or 

transferred shall be --

* * * 

Cc) Where persons are requi~ed to enter any facility listed 

in this standard for maintenance or inspection purposes, 

934 
ladders, platforms, or staging shall be provided ••• 

Persons entering the facility shall wea:r a safety belt or 

harness equipped with a lifeline suitably fastened. A . second person, similarly equipped, shall be stationed near 

where the lifeline is fastened and shall constantly adjust 

it or keep it tight as needed, with minimum slack. 

ISSUES 

1. Whether the evidence shows a violation of the cited 

standard? 

2. If so, what is the appropriate penalty? 

CONCLUSIONS OF LAW 

I. JURISDICTION 

Williams operated as an independent contractor at a mine 

site. As such it was a mine operator under the Mine Safety Act. 

I have jurisdiction over the parties and subject matter of this 

proceeding. 

II. VIOLATION 

Williams does not contest the fact that one of its 

employees, Tyrone Gardner, was working inside a bin or silo or 

tank where loose unconsolidated materials were handled, and that 

his safety belt was not fastened to a lifelirie. This clearly 

constitutes a violation of 30 C.F.R. § 56.16002. Williams 

contends that Gardner after entering the bin began using the 

jackhanuner against a direct order, but the evidence supporting 

this contention is ambiguous. I conclude that Gardner was not 

told not to use the jackhammer after he entered the bin from the 

bottom. 

The practice normally followed by Williams under which one 

of the two people in the bin was tied to a lifeline, and a 

lanyard was attached from that employee's belt to the belt of the 

other employee who ·operated a jackhammer does not meet the 

requirments of the standard. The lanyard cannot be considered a 

lifeline: as the Investigator testified, it permits too much 

slack, and would permit the person on the end of the lanyard to 

fall an additional .6 feet (the length of the lanyard). However, 

the normal practice was not being followed at the time of the 

accident, contrary to the investigation report. At the time of 

the accident, the deceased employee entered the bin to perform 

work and was not protected by a lifeline or a lanyard. This 

constitutes a violation of the mandatory standard. 

935 
GRAVITY 

The violation which I find to have occurred is a serious one. 

The failure to use a lifeline could result in a serious injury. 

The gravity is somewhat lessened by the fact that the employee 

was working near the bottom of the bin CS to 7 feet from the 

bottom) and much of the gypsum had been removed. The fatal 

accident, moreoever, tragic though it was, did not result from 

the violation. Had Gardner been atached to the lifeline tended 

by Neal, this would not have prevented the accident, since Neal 

was unable to see Gardner when the accident occurred and could 

not have prevented it. Nor is it clear that the accident 

resulted from a slip or fall. These facts mitigate the gravity 

of the violation. 

NEGLIGENCE 

As I concluded above, Williams' practice of having a single 

lifeline for two employees working in the bin did not· comply with 

the standard. This. practice had been followed for approximately 

30 days. Williams should have been aware of the violative nature 

of the practice. However, there is no evidence that Williams was 

aware that Gardner was operating the jackhammer in the bin 

without being attached either to the lifeline or the lanyard. 

I conclude, however, that Williams should have been .aware of the 

fact the Gardner was using the jackhammer, and was not attached 

to the lifeline. Williams is guilty of ordinary negligence. 

PENALTY 

Considering the criteria in section llO(i) of the Act, I 

conclude that an appropriate penalty for the violation is $900. 

ORDER 

Based on the above findings of fact and conclusions of law, 

citation 2859169 issued February 27, 1988, is AFFIRMED. 

Respondent is ORDERED to pay within 30 days of the date of this 

order $900 as a civil penalty for the violation found herein. 

jf 1,tf££ μ_{1/ltfe~;z.eL James A. Broderick 

Administrative Law Judge 

936 
Distribution: 

Ken s. Welsch, Esq., U.S. Department of Labor, Office of the 

Solicitor, 1371 Peach tree ·street, N.E.,-Atlanta, GA 30367 

(Certified Mail) 

T. E. Petersen, Esq., 775 St. Andrews Boulevard, Charleston, SC 

29407 (Certified Mail) 

slk 

937 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 301989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FLORIDA MINING & MATERIALS, 

Respondent 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. SE 88-101-M 

A.C. No. 08~00006-05523 

: Brooksville Rock Plant . . 

. . 

. . 

. . 

DECISION 

Appearances: Michael K. Hagan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia for Petitioner~ 

Archie Clark, Jr., Manager Human Resources and 

Safety, Tampa, Florida for Respondent. 

Before: Judge Melick 

This case .is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to section 105Cd> of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et seq., the "Act," charging Florida Mining and Materials (the 

Company) with seven violations of the regulatory standard at 

30 C.F.R. § 50.20. The general issue before me is whether the 

company violated the cited regulatory standard and if so what is 

the appropriate civil penalty to be assessed in accordance with 

section llOCi) of the Act. 

The cited standard, 30 C.F.R. § 50.20, provides in part as 

follows: 

Each operator shall report each accident, occupational 

injury, or occupational illness at the mine. The 

principal officer in charge of health and safety at the 

mine or the supervisor of the mine area in which an 

accident or occupational injury occurs, or an 

occupational illness may have originated, shall complete 

or review the form in accordance with the instructions 

and criteria in sections 50.20-1 through 50.20-7 ••• The 

operator shall mail completed forms to MSHA within 

10 working ·days after an accident or occupational injury 

938 
occurs or an occupational illness is diagnos·ed. When an 

accident specified in section 50.lG occurs, which does 

not involve an occupational injury, sections A, B and 

items 5 through 11 of section C of form 7000-1 shall be 

completed and mailed to MSHA in accordance with the 

instructions in section 50.20-1 and criteria contained 

in section 50.20-4 through 50.20-6. 

The seven citation at bar all charge the failure of the 

mine operator to have submitted MSHA form 7000-1 to report an 

accident involving an employee. At hearing the Company 

admitted the violations but claimed that the Secretary's 

proposed penalty was unwarranted in light of the factors 

mitigating the negligence findings. 

According to Archie Clark, Manager of Human Resources and 

Safety, the person in charge of filing the MSHA forms at issue 

died in May 1985, apparently just before the Company began 

failing to file the reports. According to Clark the office 

secretary who was familiar with the MSHA reporting 

requirements also suffered a longterm illness during 1986 and 

1987 and had been replaced by a temporary secretary. Clark 

observed that neither the successor to the deceased manager 

nor the temporary secretary had experience in the MSHA 

reporting requirements. He also noted that the Company had 

not previously failed to report accidents or injuries and 

since a new employee had taken a course, apparently in MSHA 

reporting requirements, there have been no problems since the 

citations at bar. 

The Secretary nevertheless argues that any violation of 

the cited standard demontrates negligence per se. In this 

regard counsel for the Secretary stated in closing argument as 

follows: 

Any violation of Part 50 is considered to be a 

result of a high degree of negligence si~ply because 

every MSHA -- every operator subject to MSHA 

jurisdiction·knows and ought to taKe it as the 

highest responsibility to report injuries that occur 

in the workplace. As a matter of policy, that is 

what MSHA has determined to do. 

The Secretary is clearly wrong however in her analysis. 

Negligence is defined in her own regulations as "committed or 

omitted conduct which falls below a standard of care 

established under the Act to protect persons against the risks 

of harm", 30 C.F.R. § 100.3Cd). In particular then in 

determining the existence, vel non, of negligence the facts of 

each case must be examined.--In this case the testimony of 

939 
Mr. ClarK is undisputed that the two persons with knowledge of 

MSHA filing requirements had become unavailable during the 

time in which the cited accidents should have been reported. 

The evidence also is undisputed that both before and after the 

cited deficiencies the MSHA reports were properly filed. 

Under the circumstances I agree that there is indeed a 

mitigating basis for a reduction in the negligence findings. 

In assessing a civil penalty in this case I have also 

considered the Respondent's history of violations, that the 

violations were abated in good faith, and that the operator is 

large in size. In regard to gravity I concur with the 

observations made by Chief Judge Merlin in Secretary v. 

Consolidation Coal Co., 9 FMSHRC 727 at 733-734 (1987) 

concerning similar reporting violations: 

Gravity cannot be doubted in view of the fact that 

Part 50 is the cornerstone of enforcement unde-r the 

Act. Since part 50 statistics provide the.basis for 

planning, training and inspection activities, 

accurate reporting is essential. Moreover, failure 

accurately to report could have extremely dangerous 

consequences by concealing problem areas in a mine 

which should be investigated by MSHA inspectors. In 

short, without proper compliance by the operator 

under Part SO, the Secretary could not know what is 

going on in the mines and, deprived of such 

information, he would be unable to decide how best 

to meet his enforcement responsibilities. 

I 

Under the circumstances I find that a civil penalty 

of $50 for each of the 7 violations is appropriate. 

ORDER 

Florida Mining and Materials is directed to pay civil 

penalties of $350 within 30 days of the date of this decision. 

Iiaw Judge 

\\ 

940 
Distribution: 

Michael K. Hagan, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 339, 1371 Peachtree Street, N.E., 

Atlanta, GA 30367 (Certified Mail) 

Mr. Archie Clark, Jr., Manager Human Resources and Safety, 

Florida Mining & Material, P.O. Box 23965, Tampa, FL 33630 

(Certified Mail) · ·· 

nt 

941 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

oFi:ICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 301989 

BETH ENERGY MINES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

BETH ENERGY MINES, INC., 

Respondent 

. . 

. . 

. . 

. . 

: 

. . 

. . 

. . 

: 

: 

. . 

. . 

. . 

. . 

: 

. . 

CONTEST PROCEEDING 

Docket No; WEVA 88-268-R 

Citation No. 28975091 5/23/88 

Mine No. 108 

Mine I.D. 46-03887 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-345 

A.C. No. 46-03887-03570 

Mine No. 108 

DECISION 

Appearances: R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 

Pittsburgh, Pennsylvania for Beth Energy Mines, 

Inc.1 

Nanci A. Hoover, Esq., Office of the Solicitor; 

u.s. Department of Labor, Philadelphia, Pennsylvania for the Secretary of Labor. 

Before1 Judqe Melick 

These consolidated cases are before me under 

section lOSCd) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801 et seg., the "Act," to challenge one 

citation issued by the Secretary of Labor against Beth Energy 

Mines, Inc., (Beth Energy) and for review of civil penalties 

proposed by the Secreta~y for the violation alleged therein. 

The evidence shows that on August 12, 1976, MSHA 

Inspector-Frank J. Cervo issued Notice to Provide Safeguards 

lFJC at Mine No. 108, then operated by the Bethlehem Mines 

Corp., Beth Energy's predecessor. That safeguard notice 

quoted the criteria set forth in 30 C.F.R. § 75.1403-lOCe) 

providing that."positive-acting stopblocks or derails shall 

be provided near the end of all supply tracks." 

942 
It is undisputed that the same safeguard had been issued 

at all mines with haulage track in District 3, the MSHA 

district which includes Mine No. 108. It is also undisputed 

that Mine No. 108 utilizes trac){ paulag-e only to move miners 

and supplies through the mine arid'that such a mine differs 

significantly from mines where the track is used to haul coal 

in regard to the volume of traffic, the size of trips and the 

size of the locomotives and cars. 

Sometime before February 1988, all of these safeguards 

regarding the use of positive acting stopblocks or derails in 

District 3 were uniformly modified to include language 

prohibiting the use of certain types of stopblocks. Such a 

modification was issued at Mine 108 on February 17, 1988, by 

Inspector Scott Springer and read as follows: 

Safeguard Notice lFJC issued ~8-12-76 is hereby modified 

to include the following statement: 

Positive acting stopblocks, derail or chain type 

car holds shall be used to secure or prevent 

runaways of track mounted haulage equipment. Other 

devices not specifically designed to secure track 

mounted haulage equipment to prevent runaways are 

not acceptable. 

It is undisputed that this standardized modification was 

prepared from a sample form furnished by MSHA's District 3 

office. It is further undisputed that this standardized 

language was applied to· all track haμlage mines in District 3, 

regardless of the conditions in ~ny particular mine. It was· 

intended to prohibit reliance on skids or chained timber 

stopblocks and to require cha;n type car holds. Beth Energy installed such car holds but continued to also use a timber 

arrangement. 0 

On April 28, 1988, Inspecto~ Roy Bennett issued an 

additional modification to Safeguard Notice lFJC. The modificatio~ reads·in relevant part as follows: 

Positive acting stopblocks, derails or chain type 

car holds shall be used to secure or prevent 

runaways of track mounted haulage equipment. Other 

devices not specifically designed for sucn purpose 

are not acceptable· such as skid retarders, post or 

crib block crossed over rails of any design in 

943 
front or rear of haulage equipment, wooden chocks 

under wheels or jill pokes of any design. 

It is undisputed that this modification was also issued 

on a district-wide basis in MSHA District 3, without regard 

to conditions in the particular mines and was also based upon 

a dample format prepared by the district office. 

On May 23, 1988, Inspector Bennett traveled to the J-8 

section of Mine 108 with Phil Burnside, a company Mine 

Inspector, and Mason Payne, a UMWA miners' representative. 

Upon arriving at the J-8 section they parked their vehicle 

outby several other vehicles including two supply cars near 

the end of the track. Beth Energy inaintains that it had a 

timber stopblock in place at this location to provide 

protection from runaway haulage equipment. It concedes 

however that the chain-type car hold required by the latest 

modification was not attached to the supply cars arid was in 

fact located approx.imately 30 feet. outby the ca.rs. 

Inspector Bennett accordingly issued the citation at bar 

for failure to have the chain-type car hold attached to the 

supply cars. More specifically the citation alleges a 

"significant and substantial" violation of 30 C.F.R. § 

75.1403 and Safeguard lFJC and reads as follows: 

Two supply cars were on the J8 section supply track 

and were not chained to prevent runaway. The tie 

down chain was located 30 feet outby the cars. I 

Beth Energy raises two related arguments that may be 

dispositive of these cases: (1) whether the modification to 

Safeguard lFJC upon which the citation at bar is based, was 

properly issued in that it was issued on a district-wide 

basis without consideration of the specific conditions at 

Mine 108; and (2) whether the issuance of the original 

underlying safeguard in 1976 was proper in that it was issued 

on a district-wide basis without consideration 9£ the 

specific conditions at Mine 108. Inasmuch as I agree that 

neither the original safeguard nor the subsequent 

modifications were properly issued, the citation at bar,· 

based upon such safeguard and modifications, must be vacated. 

Section 314(b) of the Act provides as follows: 

Other safeguards, adequate, in the judgment of an 

authorized representative of the Secretary, to 

minimize hazards with respect to transportation of 

men and mate.rials shall be provided. 

944 
The regulatory standard at 30 C.F.R. § 75.1403 contains 

the same provisions. The regulatory standards also set forth 

criteria, similar to those for the approval of individual 

mine plans for ventilation and roof con-trol, to be applied 

when determining whether a safeguard is necessary. The 

operation of these criteria are described in 

30 C.F.R. § 75.1403-l(a). 

Sections 75.1403-2 through 75.1403-11, set out the 

criteria by which an authorized re~resentative of 

the Secretary will be ·guided in requiring other 

safeguards on a mine-by-mine basis under § 75.1403. 

Other safeguards may be required. (Emphasis 

added.) 

As with the criteria for the approval of individual mine 

plans, these safeguard criteria are not in themselves 

mandatory safety standards but become enforceable only when 

an operator is given notice through the issuance of a 

safeguard notice. See Secretary v. Southern Ohio Coal Co., 

10 FMSHRC 963 (1988). 

In Southern Ohio Coal Co., supra, the Commission 

discussed the issu.e of the general application of safeguards 

but did not rule on the specific issue of whether a generally 

applicable safeguard would be invalid. It discussed the 

issue as follows: 

The Commission has observed that while other 

mandatory safety and health standards are adopted 

through the notice and comment rulemaking 

procedures set forth in section 101 of the Act, 

section 314(b) extends to the Secretary an 

unusually broad grant of regulatory 

power--authority to issue standards on a 

mine-by-mine basis without regard to the normal 

statutory rulemaking procedures. Southern Ohio 

Coal Co., supra, 7 FMSHRC at 512. The Commission 

also has recognized that the exercise of this 

unique authority must be bounded by a rule of 

interpretation more restrained that that accorded 

promulgated standards. Therefore, the Commission 

has held that a narrow construction of the terms of 

a safeguard and its intended reach is required and 

that a safeguard notice must identify with 

specificity the nature of the hazard at which it is 

directed and the remedial conduct required by the 

operator to remedy such hazara. 

945 
These underlying interpretive principles strike an 

appropriate balance between the Secretary's 

authority to require safeguards and the operator's 

right to notice of the conduct required of him. 

They do not, however, resolve the important issue 

raised here for the first tirne--~hether a notice to 

provide safeguard can properly be issued to address 

a transportation hazard of a general rather than 

mine-specific nature. The United States court of 

Appeals for the District of Columbia Circuit, in 

the context of the Mine Act's provision for 

mine-specific ventilation plans, has recognized 

that proof that ventilation requirements are 

generally applicable, rather than mine-specific, 

may provide the basis for a defense with respect to 

alleged violations of mandatory ventilation plans. 

In Zeigler Coal Co., supra, the court considered 

the relationship of a mine's ventilation plan 

required under section 303(0) of the Act, 30 u.s.c. 

§ 863(0), to mandatory health and safety standards 

promulgated by the Secretary. The court explained 

that the provisions of such a plan cannot "be used 

to impose general requirements of a variety· 

well-suited to all or nearly all coal mines" but 

that as long as the provisions "are limited to 

conditions and requirements made necessary by 

peculiar circumstances of individual mines, they 

will not infringe on subject matter which could 

have been readily dealt with in mandatory standards 

of universal application." 536 F.2d at 407; See 

also Carbon County.Coal Co., 6 FMSHRC 1123, 1127 

(May 1984} (Carbon County I); Carbon County Coal 

Co., 7 FMSHRC 1367, 1370-72 (September 1985) 

TCarbon County II). 

Whether, as the judge believed, a similar type of 

challenge may be made to a safeguard notice is a 

question of significant import under the Mine Act. 

Giv·en the manner in which this important question 

was raised and addressed in the present case, and 

the nature of the evidence in this record, it is a 

question that we do not resolve at this time. 

10 FMSHRC at 966-7. 

I find that indeed with respect to the proper 

interpretation of safeguard notices an analogy can properly 

be m~de i::o the law that has developed concerning the adoption 

of mine plans. In Carbon County Coal Corp., 7 FMSHRC 1367 

(1985), the Commission addressed a similar issue. There an 

MSHA district office sought to require Carbon County to 

946 
include a provision in its ventilation plan concerning 

auxiliary fans. The provision was not one set forth in the 

criteria for ventilation plans in 30 C.F.R. § 75.316-2 but 

was a "guideline" issued by the district. The Commission did 

not address the merits of the inclusion of the disputed 

provision in the plan but rather held that the attempt to 

include a generally applicable provision was improper, 

stating as follows: 

Because we conclude that the uncontroverted 

material facts establish that MSHA's decision to 

impose the free discharge capacity provision was 

not based upon particular circumstances at the 

Carbon No. 1 Mine, but rather was imposed as a 

general rule applicable to all mines, we hold, for 

the reasons stated in Zeigler and enunciated here, 

that MSHA's insistence upon the free discharge 

capacity provision, MSHA's revocation of Carbon 

County's ventilation plan, and MSHA's revocation of 

Carbon County's ventilation plan, and MSHA's 

subsequent citation of Carbon County for a 

violation of section 75.316, were not in accord 

with applicable Mine Act procedure. Also, if MSHA 

believes the free discharge capacity provision to 

be of universal application, the Secretary may 

proceed to rulemaking under section 101 of the Mine 

Act and promulgate the free discharge capacity 

provision as a nationally applicable mandatory 

safety standard. 7 FMSHRC at 1375. 

The Commission further discussed the issue of the 

application of general guidelines, quoting Zeigler coal Co. 

v. Kleppe, 536 F.2d 398 CD.C. Cir. 1976): 

The approval-adoption process protects operators 

and miners by assuring that particular conditions 

at a mine are addressed by individualized safety 

requirements. The court in Zeigler, in a 

discussion we have found "persuasive and 

compelling" Carbon County Coal Co., 6 FMSHRC at 

1127, described the limits the statute places upon 

the Secretary regarding the restricted subject 

matter of a ventilation and methane and dust 

control plan: 

Section 303(0) specifically states that 

the plan is to be "suitable to the 

conditions and the mining system of the 

coal mine ••• " The context of the plan 

requirement, amidst the other provisions 

947 
of § 303, which set forth fairly specific 

standards pertaining to mine ventilation, 

further suggests that the plan idea was 

conceived for a quite narrow and specific 

purpose. It is not to be used to impose 

general requirements of a variety 

well-suited to all or nearly all coal 

mines, but rather to assure that there is 

a comprehensive scheme for realization of 

the statutory goals in the particular 

instance of each mine. 

[I]nsofar as those plans are limited to 

conditions and requirements made 

nece~sary by peculiar circumstances of 

individual mines, they will not infringe 

on subject matter which could have been 

readily dealt with in mandatory standards 

of universal application. 7 FMSHRC at -

1371-2. 

This legal analysis is analogous to the application of 

district-wide criteria for safeguards. Under the applicable 

regulations MSHA may impose requirements on an operator on a 

mine-by-mine basis subject to the specific conditions and 

requirements necessitated by the peculiar circumstances at a 

particular mine. Conversely.and by similar analogy it is 

clear that safeguards issued under 30 C.F.R. § 75.1403 cannot 

be used to impose general requirements on all mines 

throughout a district without, regard to the circumstances of 

the specific mines. Since it is undisputed that the original 

safeguard in this case, as well as the subsequent 

modifications, were issued on a district-wide basis without 

regard to the specific conditions at Mine 108 they were not 

properly issued. Citation No. 2897509, conditioned upon the 

validity of that safeguard and its modifications, must 

therefore be vacated. See U.5. Steel Mining Co., 4 FMSHRC 

526 <Chief Judge Merlin 1982), Southern Ohio Coal co., 9 

FMSHRC 273 (Judge Maurer 1987), rev'd on other grounds, 10 

FMSHRC 963 (1988), and Southern Ohio Coal Co., lU FMSHRC 

1564, (Judge Weisberger, 1988). 

948 
ORDER 

Citation No. 2897509 is vacated. 

~y~ 

Adminis· Law Judge 

.(703'> 1 

Distribution: l 

Nanci A. Hoover, Esq., Office of . e Solicitor, U.S. 

Department of Labor, 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll Professional 

Corporation, 600 Grant Street, 57th Floor, Pittsburgh, PA 

15219 (Certified Mail) 

nt 

949 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 30, 1989 

SECRETARY OF LABOR, MI~E SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

TEXAS UTILITIES MINING, CO., 

Respondent 

. . 

: 

: 

. . 

. . 

. . 

. . 

: 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 88-145 

A. C. No. 41-01192-03525 

Big Brown Strip 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

The parties have filed a motion to approve settlement of the 

twenty violations involved in this case. The penalties were 

originally assessed at $5,000 and the proposed settlement is for 

$5,000. 

The parties' motion discusses the violations in light of the 

six statutory criteria set forth in section llOCi) of the Federal 

Mine Safety and Health Act of 1977. All twenty citations, were 

issued for violations of 30 C.F.R. § 50.20Ca) ·because reportable 

injuries which occurred during 1985, 1986 and 1987 and were not 

reported to MSHA. Each violation was originally assessed at $250 

and the operator has agreed to the full amount for every violation. In the past I have expressed the opinion that reporting 

violations are serious. See, Secretary of Labor v. Consolidation 

Coal Company, 10 FMSHRC 1633 (1988). These settlements are 

consistent with my previously stated views. 

Accordingly, the motion to approve settlement is GRANTED and 

the operator is ORDERED TO PAY $5,000 within 30 days from the 

date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Daniel Curran, Esq., Office of the Solicitor, u. s. Department of 

Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Christopher Miltenberger, Esq., Worsham, Forsythe, Sampels & 

Wooldridge, Thirty-Two Hundred, 2001 Bryan Tower, Dallas, TX 

75201 (Certified Mail) 

/gl 950 
ADMINISTRATIVE LAW JUDGE ORDER 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 12, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

·. NEW ERA COAL COMP ANY, 

INCORPORATED, 

Respondent 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALT¥ PROCEEDING 

Docket No. KENT 89-21 

A. C. No. 15-10753-03533 

New Era Mine No. 1 

ORDER RESPONDENT TO SHOW CAUSE 

The Solicitor has submitted a motion for default judgment in 

this case. 

In his motion the Solicitor advises that although the 

operator has paid the originally assessed penalty in full, this 

payment should not be.construed as a settlement since no agreement has been reached between the parties. Consequently, the 

Solicitor asks that an order to show cause be issued and that if 

there is no satisfactory response thereto, an order of default 

thereafter be entered against toe operator. 

The operator should understand that ~here can be no settlement unless both parties agree to it. The operator cannot dispose of a case through a settlement by paying the penalties without the Solicitor's concurrence. The Soltcitor's present motion 

is well taken. 

.. Accordingly, it is ORDERED that within 21 days from the date 

of this order the operator show good reason why it should not be 

held in default. Otherwise, a default judgment will be entered. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

W. F. Taylor, Esq., Office of the Solicitor, u. s. Department of 

Labor, 2002 Richard Jones Road, Suiti B-201, Nashville, TN 37215 

(Certified Mail) 

Mr. Keith Akers, Safety Director, New Era Coal Company, Inc., 

29501 Mayo Trail, Catlettsburg, KY 41129 (Certified Mail) 

/gl 951 
952 ~u.s.GOVERNlll£NT PRINTING orrICE:1989-241-15Si04756