August 1982 

Commission Decisions 

8-12-82 

8-31-82 

8-31-82 

8-31-82 

Lloyd Brazell v. Island Creek Coal Co. 

Southern Ohio Coal Co. 

Elias Moses v. Whitley Development Corp. 

Florence Mining Co., Helen Mining Co. 

Oneida Mining Co., North American Oil 

Administrative Law Judge Decisions 

8-02-82 N.B.C. Energy, Inc. 

8-04-82 Southern Ohio Coal Co. 

8-04-82 Miller Mining Co. 

8-05-82 Consolidation Coal Co. 

8-09-82 Joseph W. Herman v. IMCO Services 

8-10-82 United States Steel Corp. 

8-11-82 Billy Ray Masters 

8-18-82 Consolidation Coal Co. 

8-18-82 Republic Steel Corp. 

8-18-82 Island Creek Coal Co. 

8-18-82 Island Creek Coal Co. 

8-19-82 Mitch Coal Co., Inc. 

8-19-82 Doan Coal Co. 

8-20-82 Consolidation Coal Co. 

8-23-82 Sunshine Mining Co. 

8-25-82 UMWA ex rel Jeffrey L Simmons v. 

Southern Ohio Coal Co. 

8-25-82 Rockville Mining Co. 

8-25-82 Consolidation Coal Co. 

8-27-82 Amax Lead Company of Missouri 

KENT 81-46-D 

VINC 79-227-P 

KENT 79-366-D 

PITT 77-15 

KENT 81-133 

LAKE 82-78-R 

WEST 81-267-M 

PENN 82-44-R 

WEST 81-109-DM 

PENN 81-86 

VA 81-87 

WEVA 82-84-R 

PENN 81-115-R 

WEVA 80-72 

WEVA 79-183-R 

KENT 82-57 

PENN 82-31 

WEVA 82-134-R 

WEST 81-197-RM 

LAKE 82-74-D 

WEVA 82-10 

WEVA 80-516 

CENT 81-63-M 

Pg. 1455 

Pg. 1459 

Pg. 1475 

Pg• 1498 

Pg. 1506 

Pg. 1509 

Pg. 1533 

Pg. 1540 

. 1551 

Pg. 1555 

Pg. 1559 

Pg. 1563 

Pg. 1565 

Pg. 1566 

. 1567 

Pg. 1570 

Pg. 1572 

Pg. 1577 

Pg. 1584 

Pg. 1590 

Pg. 1610 

Pg. 1615 
Comnission Decisions 
AUGUST 

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

Walter Schulte v. Lizza Industries, Inc., Docket No. YORK 81-53-DM. 

(Judge Melick, July 6, 1982) 

UMWA on behalf of Billy Dale Wise v. Consolidation Coal Company, Docket 

No. WEVA 82-38-D. (Judge Koutras, July 16, 1982) 

Review was Denied in the 'following case during the month of August: 

Fred Ganchuk and Lesko Bugay v. Aloe Coal Company, Docket Nos. 

PENN 81-164-D, PENN 81-165-D. (Judge Koutras, July 8, 1982) 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

LLOYD BRAZELL 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 12, 1982 

Docket No. KENT 81-46-D 

ISLAND CREEK COAL COMPANY 

DECISION 

This discrimination case arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp. IV 1980), The 

administrative law judge concluded that Island Creek Coal Company had 

not discriminatorily terminated Lloyd Brazell. 3 FMSHRC 1773 (July 1981) 

(ALJ). We affirm. 

Brazell began working for Island Creek in June 1970 and was promoted 

to a management position in 1974. On May 30, 1980, the date of his 

termination, he was serving as a belt foreman. At the time that Brazell 

was laid off the mine was reducing its work force, and several other 

managerial employees, and numerous rank-and-file miners, were also laid 

off in connection with this cutback. 

Brazell filed a discrimination complaint with the Secretary of 

Labor pursuant to section 105(c)(2) of the Act. 30 U.S.C. § 815(c)(2). 

The Secretary concluded that no discrimination had taken place. Brazell 

then instituted this proceeding before the Commission pursuant to section 

105(c)(3) of the Act. 30 U.S.C. § 815 (c)(3). 

Brazell describes numerous incidents in which he was involved during 

the course of his employment by Island Creek. The administrative law judge 

thoroughly reviewed these incidents and concluded that Brazell had failed to 

establish a prima f acie case of discrimination in every instance. We have 

reviewed the record in light of the arguments presented by Brazell on review 

and conclude that the judge's factual findings are supported by substantial 

evidence. 30 U.S.C. § 823(d)(2)_(A)(ii)(I). We also conclude that based, 

on the evidence the judge correctly found that Brazell failed to establish 

a prima facie case of discrimination under section 105(c). 

In order to establish a prima facie case a miner must prove by a 

preponderance of the evidence that: (1) he engaged in protected activity, 

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

activity. Secretary of Labor on behalf of David Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786 (October 1980), rev' d on other grounds sub nom., 

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

of the incidents described by Brazell were not the subject of safety 

1455 82-8-4 
complaints, nor did he otherwise bring them to the attention of management 

or MSHA. Several of the incidents clearly fall outside the scope of 

section 105(c) of the Act, ~' complainant's failure to cash small bonus 

checks and his efforts to prevent pornographic materials from being brought 

into the mine. As to these and similar incidents Brazell failed to establish 

the first element of a prima facie case of discrimination, i.e., that he engaged 

in protected activity. 

Several other incidents related by Brazell could be viewed as involving 

protected activity, particularly his complaints about an improper splice, 

unsafe conduct by miners, and inadequate firebossing. However, Brazell has 

failed to establish by a preponderance of the evidence the second element of 

a prima facie case, i. e, that his lay off was motivated in any part by these 

happenings. Although "direct evidence of motivation is rarely encountered" 

and, therefore, oftentimes "the only available evidence is indirect 11

0 ]) 

sufficient indicia of discriminatory intent have not been presented in this 

case for us to draw inferences from the evidence different from those 

drawn by the judge. To the extent' that the judge 1 s decision weighed the 

sometimes conflicting testimony on the facts in dispute, we find no persuasive 

reason to disturb the judge 1 s findings. J:./ 

}:;../ Secretary .2i_ Labor on behalf of Johnny!!· Chacon v, Phelps Dodge Corp., 

3 FMSHRC 2508, 2510 (Nov. 1981), reconsideration den., 3 FMSHRC 2765 

(Dec. 1981), ~· for review filed, No. 81-2300, D.C. Cir., Dec. 11, 

1981. 

2/ Brazell alternatively requests a remand to the administrative law judge 

for further evidence directed towards disproving the credibility of the 

mine superintendent who testified at the hearing in this case. The sole basis 

for this request is the fact that on July 6, 1981, a multi-count indictment 

was filed in federal district court charging a form.er MSHA official with 

several instances of criminal misconduct. One of the counts alleges that 

the official impeded an MSHA investigation concerning the mine herein involved 

"by approving a Ventilation and Methane and Dust Control Plan submitted by 

Island Creek Coal Company when he well knew that citations for excessive dust 

levels were in effect." United States v. Craft, No. CR 81-00009-0(G), W.D. 

Ky. 

We simply have no basis for inferring from this allegation against. 

a former government official that the mine superintendent testified untruthfully before the administrative law judge concerning the events herein 

at issue. No connection between the events at issue in this proceeding and 

the criminal charges has been demonstrated or a connection between the 

individuals involved. In our view a sufficient showing has not been made 

that a remand for additional evidence is warranted. 

1456 
In sum, we agree with the judge that as to each of the incidents 

described by Brazell, in his complaint and during the hearing, a prima 

facie case of prohibited discrimination was not established. Accordingly, 

the judge's decision is affirmed. 1./ 

, .. 

rr•sioner 

I i 

I I 

\ I I I 

\\ I 

3/ In light of our conclusion that Brazell failed to prove that his lay off 

was in any part motivated by protected activity, we reject his argument 

that Island Creek's failure to rehire him constitutes illegal discrimination. 

145~; 
Distribution 

Jerry W. Nall, Esq. 

Suite 12-16 Odd Fellows Building 

Third & St. Ann Streets 

Owensboro, Kentucky 42301 

William R. Whitledge, Esq., for 

Island Creek Coal Company 

Logan, Morton & Whitledge 

49 Union Street 

Madisonville, Kentucky 42431 

Michael McCord, Esq. 

Office of the Solicitor 

U.S ... Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Richard Steffey 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church~ Virginia 22041 

1458 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SOUTHERN OHIO COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 31, 1982 

Docket No. VINC 79-227-P 

DECISION 

This penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et~· (1976 & Supp. IV 1980), and 

involves two alleged violations of 30 C.F.R. § 75.200. 1./ The administrative law judge found that two violations of the standard had occurred, 

and assessed the maximum penalty of $10,000 for each violation. Southern 

Ohio Coal Co., 2 FMSHRC 350 (February 1980)(ALJ), Southern Ohio Coal 

Company (SOCCO) filed a petition for discretionary review of the judge 1 s 

decision, which we granted in part. For the reasons that follow, we 

affirm the judge's finding that the two violations occurred. ];/ We 

find, however, that lower penalties are warranted and we assess penalties 

totalling $10,000. 

On the day before the events at issue, miners employed by SOCCO 

encountered abnormal conditions while advancing the face in entry 15. 

There was excessive water and soft bottom, and several shuttle cars were 

damaged while the miners were trying to load coal. To circumvent the 

problems, the miners stopped advancing the face and tunneled back through 

1/ The cited standard provides in pertinent part: 

§ 75.200 Roof control programs and plans. 

[Statutory Provisions] 

Each operator shall undertake to carry out on a continuing 

basis a program to improve the roof control system of each coal 

mine and the means and measures to accomplish such system. The 

roof and ribs of all active underground roadways, travelways, and 

working places shall be supported or otherwise controlled adequately 

to protect persons from falls of the roof or ribs.. A roof control 

plan and revisions thereof suitable to the roof conditions and 

mining syst.em of each coal mine and approved by the Secretary shall 

be adopted •••• No person shall proceed beyond the last permanent 

support unless adequate temporary support is provided. 

2/ Our review of the record convinces us that there is substantial 

evidence to support the judge's conclusions that there were two violations of the Mine Act. As discussed 'further infra, however, in certain 

respects we find the judge's decision to be in need of modification. 

Therefore, where necessary we make factual findings. 30 U.S.C. 

§ 823(d)(2)(C); 5 U.S.C. § 554(b) (1980). 

1459 82-8-12 
in an outby direction from a crosscut driven from the number 14 entry. 

This unusual mining procedure resulted in an area of about 23 feet 9 

inches by 17 feet 6 inches of unsupported roof. 

During the midnight to 8:00 a.m. shift on May 5, 1978, an overhanging 

rib in number 15 entry was sheared, spilling coal onto the mine floor. 

Three temporary supports were then set at the inby end of the unsupported 

area. Three temporary supports were also set at the outby end of the 

area. Tr. II at 172, 174. Later that day during the 4:00 p.m. to 

midnight shift, Lonnie Darst, the section foreman, instructed James Six, 

a member of his crew, to remove the inby row of temporary supports with 

a loading machine. The supports were to be removed so that equipment 

could be brought in to load out coal from the sheared rib and to clean 

up the area. After giving the instructions to remove the temporary 

supports, Darst left the area. While under roof supported only by 

temporary supports, Six removed two of the inby temporary supports by 

hand. He was assisted by Johnny Lee Endicott (a shuttle car operator 

and helper) who removed the third inby support by hand. Six and 

Endicott then walked outby about 18 to 21 feet under unsupported roof to 

remove the outby supports. As Six and Endicott were removing these 

supports the roof fell, killing Six. 

The Mine Safety and Health Administration (MSHA) conducted an 

investigation and issued two citations to SOCCO alleging violations of 

30 C.F.R. § 75.200. Citation No. 279023 stated~ 

The results of a coal mine fatal[ity] investigation revealed 

that two persons were inby permanent supports in the No. 15 entry 

of the section. The area of unsupported roof was 23 feet 9 inches 

in length by 17 feet 6 inches wide. 

Citation No. 279024 stated: 

The investigation of a fatal accident revealed that the 

approved roof control plan was not being complied with because 

temporary roof supports were not being removed remotely or additional temporary supports were not installed so that workmen 

removing the supports remain[ed] in a safe area. The operator's 

approved roof control plan requires that if it is necessary to 

remove temporary supports before permanent supports are installed, 

such supports shall be installed in such a manner that the workman 

~emoving the supports rema~ns in a supported area. 

After a hearing the administrative law judge rendered a bench 

decision, which he later adopted and supplemented in a written decision. 

The judge concluded that the two alleged violations had occurred and 

1460 
that SOCCO was liable for the violations. Because the violations were 

the "proximate cause" of a miner's death, the judge found them to be 

"extremely serious." The judge also found that SOCCO was negligent in 

that it was responsible both "for the imputed negligence of its agents 

and employees [and] its own acts of independent and contributory 

negligence." He concluded that a $10,000 penalty was warranted for each 

violation. 

On review, SOCCO disputes the judge's findings that it is liable 

for the violations, that "top management," its foreman, and the miners 

were negligent, and that the negligence of the foreman, as well as the 

rank-and-file miners, should be imputed to it. 

Actions of the Foreman and the Miners 

The judge concluded that foreman Darst was negligent in supervising 

the miners involved in the accident. SOCCO argues that Darst was a safe 

foreman and that any negligent acts were committed by Six and Endicott 

in direct contravention of company policy and Darst 1 s instructions. 

SOCCO also urges that it was unusual for miners to work under unsupported roof, and that because Six and Endicott were safe and experienced 

miners, Darst had properly determined that they did not need special 

attention. 

In deciding whether Darst was negligent, we look to whether Darst 

acted with the care required under the circumstances. We conclude that 

he did not. 3/ The evidence establishes that both Six and Endicott had 

been observed under unsupported roof on other occasions, and that Six 

had received two prior warnings for violations of roof control procedures. 

Tr. at 94, 131, 136, 160; Tr. II at 77. The evidence also establishes 

that chronically bad, potentially dangerous roof conditions existed in 

the section where the accident occurred, and in the accident area on the 

day of the roof fall. Tr. at 56, 72, 87, 89-90, 105-106, 108, 111, 137, 

139, 172-174, 177-178; Tr. II at 21, 23-24, 44-45, 82-83, 116-117. The 

poor condition of the roof in the section should have caused the foreman 

to pay particularly close attention to any activity occurring in the 

vicinity, in this instance the removal of temporary supports. Furthermore, 

Darst's directions as to the removal of the jacks were, at best, 

incomplete. In the dangerous situation confronting the miners that day, 

the foreman did not give specific instructions as to how to remove the 

jacks with a loader, and left the area while the work was in progress. 

Tr. II at 101, 107-109. Consequently, we conclude that the judge's 

finding that Foreman Darst negligently supervised Six and Endicott is 

supported by substantial evidence. 

11 SOCCO's major premise is that the judge erroneously determined that 

Darst never instructed the miners to remove remotely the first row of 

temporary supports with the loader, and that this finding is inconsistent with other parts of his decision. We agree that the judge's 

decision permits the inference that Darst did not give the loader 

instructions, and to the extent it does so is wrong. The evidence is 

undisputed that Darst instructed Six to remove the jacks with the 

loader. This fact does not, however, resolve the ultimate issue of 

Darst's negligence. 

1461 
The judge further found that the violations also were the result of 

a reckless disregard for safe mining practices by both Six and Endicott. 

The evidence amply demonstrates that in going under unsupported roof the 

miners knowingly behaved in a manner contrary to safety instructions, 

company policy. Tr. at 62-63, 109-111, 113, 131, 140, 160; Tr. II at 

144. Both failed to exercise reasonable care for themselves or for each 

other under hazardous conditions. Thus, substantial evidence supports a 

finding that both rank-and-file miners acted in a negligent manner. 

SOCCO's Liability for the Miners' Violative Acts 

Section 75.200 provides that 11 [n]o person shall proceed beyond the 

last permanent support unless adequate temporary support is provided." 

There is no dispute that the miners violated this proscription. SOCCO's 

approved roof-control plan requires that temporary supports be remotely 

removed. There also is no dispute that Six and Endicott did not do so. 

Although SOCCO does not dispute the facts underlying the violations, it 

contends that the miners' behavior ~as idiosyncratic and unpredictable, 

and, therefore, that imputation of their violative acts to it is improper. 

It is well-settled that under the Mine Act, an operator is liable 

without fault for violations of the Act and mandatory standards conmitted 

by its employees, Allied Products Co, v. FMSHRC, F.2d , No. 

80-7935, 5th Cir. Unit B (Feb. 1, 1982); American Materials c;rp,, 4 

FMSHRC 415 (March 1982); Kerr-McGee Corp., 3 FMSHRC 2496 (November 

1981); El Paso Rock Quarries, Inc., 3 FMSHRC 35 (January 1981). Thus, 

we reject SOCCO's argument that it is not liable for the violations. 

Number of Violations 

The judge concluded that the operator was liable for two violations 

of the Mine Act. SOCCO asserts that it was charged twice with the same 

violation: "The required conduct was the same [i.e., persons should not 

work under unsupported roof]; the alleged violations merged; and MSHA 

should have been required to elect to proceed under one provision or the 

other for the single occurrence." SOCCO argues that the same evidence 

supporting the allegation that the miners removed temporary supports by 

hand, rather than remotely, demonstrates also that these miners traveled 

and were working under unsupported roof. !!:_/ 

±I SOCCO also challenges the judge's conclusion that it was legally 

responsible for designing and enforcing a safety program to ensure 

compliance with the Mine Act. It is clear that under the Mine Act, the 

operator is responsible for maintaining a safe workplace. S. Rep. 95-

181, 95th Cong., 1st Sess., 18 (1977); reprinted in Legislative History 

of the Federal Mine Safety and Health Act of 1977 at 606 (1978) (Legis. 

Hist.). The Acn, however, imposes no specific duty to design and 

implement a safety program which ensures employees' perpetual compliance 

with the mine safety laws. The question properly before the judge was 

to determine, in assessing a penalty, whether the operator was negligent. 

SOCCO's safety procedures are relevant ,only in judging whether SOCCO 

exhibited a lack of care in regard to the occurrence of the violations. 

See discussion, infra. 

1462 
The miners violated section 75.200 and the roof control plan 

adopted thereunder in two ways: by omission, in failing to remove 

remotely the temporary supports, and by connnission, in traveling and 

working under unsupported roof. Despite the fact that these transgressions arose out of a single series of events, the miners connnitted 

separate violations. Cf. Peabody Coal Co., 8 IBMA 121, 129 n.2 (1977); 

Eastern Associated Coal Corp., 1 IBMA 233, 236 (1972). Thus, we affirm 

the judge's conclusion that two violations occurred. 'i_/ 

Imputation of the foreman's and miners' negligence for penalty 

purposes ~j 

Two distinct imputation principles are involved in this case: (1) 

as we have already discussed, the imputation of the employees' acts to 

establish the operator's liability for violations; and (2) the imputation of the employees' negligent acts for penalty purposes, We have 

concluded that the judge properly imputed the miners' violative acts to 

the operator for purposes of liability, The remaining question is 

whether he properly imputed the foreman's and the miners' negligent acts 

to SOCCO for penalty purposes. 

Section llO(i) of the Act requires that in assessing penalties 

the Connnission must consider, among other things, "whether the operator 

was negligent," 30 U.S.C. § 820(i). We have previously held that 

"[s]ince operators typically act in the mines only through such supervisory agents, ••. consideration of a foreman's actions is proper in 

:2_/ The judge also concluded: "The record shows the section foreman's 

failure to supervise and monitor the remote recovery of the temporary 

supports [violated] the safety precautions set forth in 30 C.F.R. 

§ 75.200-14." ,He then specified the ways in which Darst purportedly 

violated 30 CFR § 75.200-14, and in each instance he found that Darst's 

failure to comply with the provisions was indicative of the foreman's 

and top management's negligence. The judge erred in using § 75.200-14 

as a benchmark for negligence. Sections 75.200-6 through 75.200-14 are 

criteria promulgated by the Secretary for the guidance of his District 

Managers in their approval of roof control plans. These sections do not 

impose a duty upon an operator. Rather, the duty is imposed by the 

approved and adopted roof control plan, which may or may not contain 

provisions equivalent to the criteria. The judge's error is not 

prejudicial, however, because there is substantial evidence apart from 

this finding to support the findings of violations and SOCCO's negligence. 

E..J Although the judge's primary conclusion was that the foreman and 

the miners were negligent, and that~their negligence was imputable to 

SOCCO, he also concluded that the operator was independently negligent. 

The record does not support the judge's inferred findings that SOCCO 

failed to supervise its foremen adequately and that SOCCO "top 

management" decided to remove the coal, necessitating removal of the 

temporary supports. The error is not ffi?terial, however, because, as 

discussed infra, the operator's negligence is established by that of its 

foreman. 

1463 
evaluation of negligence for penalty assessment purposes. 11 Nacco 

Mining Co., 3 FMSHRC 848, 850 (April 198l)(construing analogous penalty 

provision in 1969 Coal Act). Therefore, we hold that the judge properly 

imputed the foreman's negligent actions to the operator in considering 

the amount of penalty to be assessed. ]_/ 

Whether the negligence of a rank-and-file mirter may be imputed to 

an operator for penalty purposes has not yet been addressed. Congress 

imposed primary responsibility on operators for providing a safe work 

environment, although it noted that the effort must be a joint one with 

miners. Legis. Hist. at 606. Congress further stated that the purpose 

of civil penalties is to ensure the operator's compliance with the 

requirements of the Mine Act. Legis. Hist. at 628-629, 1347-1348. 

"Operators" include their agents, who are defined in section 3(e) of the 

Mine Act as 11 any person charged with responsibility for the operation of 

all or a part of a coal or other mine or the supervision of the miners 

in a coal or other mine." (Emphasis added.) 30 U.S.C. § 802(e), 

Furthermore, the legislative history of the 1969 Coal Act, from which 

the relevant provisions of the Mine Act were derived, stated that the 

provision for assessment of civil penalties is "necessary to place the 

responsibility for compliance with the Act and the regulations, as well 

as the liability for violations on those who control or supervise the 

operation of coal mines as well as on those who operate them,n It 

declared further that agents of operators should include supervisors 

such as foremen. S. Rep. 91-411, 91st Cong., 1st Sess. 39, 44 (1969); 

reprinted in Legislative History of the Federal Coal Mine Safety Act of 

1969 at 165, 170 (1975). The Senate Report on the Mine Act reiterated 

this view and added: "In short, the purpose of a civil penalty is to 

induce those officials responsible for the operation of a mine to comply 

with the Act and its standards." Legis. Hist. at 628-629. Thus, where 

agen~s are negligent, that negligence may be imputed to the operator for 

penalty purposes. 

As seen from the above review, the statutory language and the 

legislative history are nqt directed at imputing the negligence of rankand-file miners to the operator for penalty purposes. Thus, we reverse 

the judge's holding that the negligence of a rank-and-file non-supervisory 

employee may be directly imputed to the operator for purposes of penalty 

assessment. However, where a rank-and-file employee has violated the 

Act, the operator's supervision, training and disciplining of its 

employees must be examined to determine if the operator has taken 

reasonable steps to prevent the_ rank-and-file miner's violative conduct. 

Nacco, supra, 3 FMSHRC at 850-851. We examine below the record evidence 

in this regard in the context of the proper penalty assessment. 

II In Nacco, we described the circumstances in which a foreman's 

negligence might not be considered to be the operator's for penalty 

assessment purposes: "Where •.• an operator has taken reasonable steps 

to avoid a particular class of accident and the erring supervisor unforseeably exposes only himself to risk, it makes little enforcement sense 

to penalize the operator for 'negligen~e. '" 3 FMSHRC at 850. The Nacco 

holding is inapplicable here because the foreman's negligence helped to 

expose miners, whose supervision was his responsibility, to danger. 

1464 
Assessment of penalty 

We have affirmed the judge's 

imposition of liability on SOCCO. 

finding of two violations and his 

We must now consider whether, in 

light of our discussion imputation of negligence for penalty 

purposes, the judge's 

llO(i) requires that in 

operator's history of 

penalty to the size of 

ability to continue in 

to achieve rapid 

the operator was 

assessments are appropriate. Section 

a penalty the Commission consider the 

violations, the appropriateness of the 

the business, the effect on the operator's 

business, the operator's good faith in attempting 

the gravity of the violation, and whether 

The parties stipulated as to the first four 

accepted their stipulations. Tr. at 

the judge found the violations were 

of these criteria, and the j 

29-31. With respect to , 

extremely serious, and we agree. 

We do not agree, however, with the judge 7 s discussion of the negligence criterion and his assessment of maximum penalties in this case. 

We have held that the j erred in directly imputing the rank-and-file 

miners' negligence to SOCCO for penalty assessment purposes. As discussed, the correct is to determine whether their violative 

conduct was attributable to an omission of the operator. In this 

regard, SOCCO evidence directed at establishing the adequacy 

of its programs. Tr. at 26, 63, Tr. II at 70-73, 161-162, 19Li., 

199-204, 220. While there may be some question about the overall 

effectiveness of these programs (Tr. at 95; Tr. II at 115-116, 132, 165, 

167-169, 191-193, 219-220), the record does not support a finding that 

the safety programs contributed directly or indirectly to the violations 

at issue. Thus, we conclude that apart from the foreman's negligence, 

which has been established and is imputable to the operator, the evidence does not establish further negligence by SOCCO. 

tion was in 

miners' negligence was 

was independently 

must ~e-evaluate the 

's assessment of maximum penalties for each violabased on his conclusions that the rank-and-file 

imputable to the operator and that the operator 

, conclusions that we have overturned, we 

to be assessed. 

Through his special assessment procedures, the Secretary proposed 

that a penalty of $6,000 be assessed for the failure to remotely remove 

roof supports, and that a penalty of $4,000 be assessed for travelling 

and working under unsupported roof. Under the Act the Secre is 

authorized to propose penalties for violations (30 U.S.C. § 815(a)), but 

in a contested case the responsibility for assessing penalties rests 

with the Commission. 30 U.S.C. § 820(i). Shamrock Coal Co., 1 FMSHRC 

469 (June 1979), aff'd, No. 79-3393, 6th Cir. (March 9, 1981). Based 

on our independent review of the record and application of the statutory 

penalty criteria, we agree with the Secretary that penalties totall 

$10,000 for the two violations are appropriate. However, unlike the 

Secretary, in the circumstances of this case we find no basis for 

assessing a penalty for the roof support removal violation than 

for the working under unsupported roo·f. violation. Rather, we find that, 

in light of the interrelation of the two violations, penalties of $5,000 

for both violations are appropriate and consistent with the statutory 

criteria. 

1465 
Did the judge comply with 29 C.F.R. § 2700.65? 

We have stated previously that Connnission Rule 65, 29 C.F.R. § 

2700.65, §_/and the Administrative Procedure Act, 5 U.S.C. § S57(c)(3) 2J: 

[R]equire findings of fact, conclusions of law, and supporting 

reasons in order to prevent arbitrary decisions and to permit 

meaningful review. As the D.C. Circuit has emphasized, these 

requirements "are not mere procedural niceties; they are 

essential to the effective review of administrative decisions," 

U.S.V. Pharmaceutical Corp. v. Sec'y of HEW, 466 F.2d 455, 462 

(1972). Our function is essentially one of review. See 30 

U.S.C. § 823(d) ••.• Without findings of fact and some justification for the conclusions reached by the judge, we cannot 

perform that function effectively. See Duane Smelser Roofing 

Co. v. Marshall, 617 F.2d 448, 449-450 (6th Cir. 1980); U.S.V. 

Pharmaceutical Corp,, supra; UAW v. NLRB, 455 F.2d 1357, 1369-

1370 (D.C. Cir. 1971); Anglo-Canadian Supply Co. v. 

310 F.2d 606, 615-617 (9th Cir. 1962); R.W. Service Systems, 

Inc., 235 N.L.R.B. No. 144, 99 L.R.R.M. 1281 1282 (1978) . 

The Anaconda . , 3 FMSHRC 299-300 (February 1981). 

The judge 1 s decision under review minimally complies with our rules 

and the APA. It contains findings of fact supporting the conclusion 

§_/ 29 C.F.R. § 2700.65 states in pertinent part: 

(a) Form and content of the judge's decision. The judge shall 

make a decision that constitutes his final disposition of the 

proceedings. The decision shall be in writing and shall include 

findings of fact, conclusions of law, and the reasons or bases for 

them, on all the material issues of fact, law or discretion presented by the record, and an order. If a decision is announced 

orally from the bench, it shall be reduced to writing after the 

filing of the transcript ...• 

9/ 5 U.S.C. § 557(c)(3) proviμes in part: 

All decisions, including initial, recommended, and tentative 

decisions are a part of the record and shall include a statement of--

(A) findings and conclusions, and the reasons or basis therefor, 

on all material issues of facts, law, or discretion presented 

on the record; and 

(B) the appropriate rule, order, sanction, relief, or denial 

thereof. (Emphasis added.) 

5 U.S.C. § 557(c)(3) is applicable through§ 105(d) of the Mine Act, 30 

U.S.C. § 81S(e), which provides for hearings in accordance with 5 

u.s.c. § 554. 

1466 
that the violations occurred and that SOCCO was liable for the violations. It also contains findings sufficient to support the conclusion 

that SOCCO, through its foreman, was negligent in allowing the violations 

to occur, and that the violations were extremely serious. It does not, 

as did the decisions in Anaconda, "cross the line from the tolerably 

terse to the intolerably mute." 3 FMSHRC at 302. 

Accordingly, we affirm the judge's conclusion that two violations 

of 30 C.F.R. § 75.200 occurred and assess penalties of $5,000 for each 

violation. 10/ 

Richar;d V.~ ' '... ljl ,; ·': . . 1 r{·- /) . (~ , . , ' /. I . 1 ,./ .. ,'l /:, ·tl,1· I .· / 1tl7 

F/ank' ;F ,,; JZ''st:itab,1 corm:ri:· ii(i'>netl, / / 

( '[/ (/ , < (; t / /~ { ' j/V ·, / 

\ I I 

I I 

I I 

I I I , 

!QI We respectfully disagree with our dissenting\~olleague's suggestion 

that failure to grant paragraphs 3 and 4(a) of the operator's petition for 

review which were specifically directed toward the appropriate penalty, 

precludes us from reviewing and reducing the penalty assessed by the judge 

in this case. 

Failure to grant review of a portion of a petition may bar consideration of the issues raised therein. 30 U.S.C. § 823(d)(2)(A)(iii). However, 

in this case we do not reach the question. Here, among the issues which we 

did direct for review is the question of whether the judge correctly evaluated 

the operator's negligence in relation to the violations found (see paragraphs 

one and two of the operator's petition). 

The Act mandates determination of an operator's negligence as a component in penalty assessments. 30 U.S.C. 820(i). Accordingly, we have 

reviewed the negligence issue raised by paragraphs one and two of the 

petition on review. We conclude that on the record before us the negligence that can be attributed to the operator is considerably less than 

suggested by the judge. Under these circumstances, it is appropriate for 

us to reduce the maximum penalties as·sessed by the judge. To not do so 

would afford the operator little relier in light of our findings regarding 

negligence. 

1467 
Commissioner Lawson concurring in part and dissenting in part: 

I am in agreement with the majority and the judge below in their 

respective findings of two violations of the Act. Roof falls continue 

to be the leading cause of death in the mines, and the roof here was 

indisputably bad. 1./ Tr. I at 63, 137, 177-178; Tr. II at 107. Further, 

the violations here directly resulted in the death of miner James Six. 

But I dissent from my colleagues' reduction of the penalties imposed on 

this mine operator. 

The petition for discretionary review filed by the operator sought 

review of numerous questions. On some of these review was granted. 

However, review was sought but specifically denied on all issues involving the amount of the penalty, and reducing the penalties in this case is 

thus procedurally improper. ]:_/ 

As a consequence of the Commission 1 s denial of review of these issues, 

neither the operator nor the Secretary, of course, briefed the Commission 

on whether or not the penalties assessed were excessive. The operator 1 s 

contentions in its petition for review were restricted to whether it was 

responsible for the violations, not the amount of the penalties assessed. 

Nevertheless, the majority has determined that the penalties assessed by 

the ALJ are excessive, and that "lower penalties are warranted." Page 1, 

_!/Indeed, fatalities as the result of roof falls from January 1 to June 4, 

1982 have dramatically increased; twenty-nine miners have died this year, 

compared with nine deaths in 1981, and twelve deaths in 1980 for this same 

time period. Daily Fatality Report, U. S. Dept. of Labor, MSHA, June 4, 

1982 and June 4, 1980. 

J:./More specifically, review was denied on the issues of: 

"(3) Judge Kennedy's Decision and Order is contrary to 

law in that SOCCO was denied the due process of law 

by being ordered to pay a penalty $10,000 higher 

than the proposed assessments it would have been 

obligated to pay if it had not exercised its right 

to challenge the proposed penalties through the 

hearing process; 

(4) The following substantial questions of law, policy or 

discretion are involved in this matter: 

(a). Whether an Administrative Law Judge can properly 

increase and impose penalties to a total of $20,000 

"in order to deter further violations, to heighten 

top management's awareness of the need for meaningful supervision and .sanctions to back up the mine 

safety laws, and to ensure, if possible, voluntary 

compliance with those laws;" Petition for Discretionary Review, page 2. 

1468 
Section 113(d)(2)(A)(iii) of the Act sets forth the relevant requirements of a petition for discretionary review, viz: "If granted, review 

shall be limited to the questions raised by the petition." 

Section 113(d)(2)(B) enumerates the procedural requirements under 

which the Commission may, on its own motion, order a case before it for 

review, whether or not a petition for discretionary review has been filed, 

but the issue of the amount of penalty was not raised here by the Commission 

on its own motion. As that section provides: "If a party's petition for 

discretionary review has been granted, the Commission shall not raise or 

consider additional issues in such review except in compliance 

with the requirements of this paragraph." 

Thus, the Commission did not grant review of any issue asserting 

that the penalty amount was excessive--indeed denied review when such was 

sought by SOCCO--nor did it raise this issue Accordingly. the 

statute prohibits considering the issue of penalty excessiveness in this 

review proceeding. 

Although one need not endorse every step of the 

process taken by the judge below, my colleagues have 

more reasoned analysis for reducing by fifty 

imposed. All statutory penalty assessment criteria 

penalty assessment 

failed to provide a 

the penalties to be 

(set forth in section 11 negligence 11 

's conclusion that 

llO(i) of the Act) were to before 

and "gravity. 11 There is no disagreement 

"the violations were extremely serious," nor that this operator was negligent. 

However, the majority seeks to sever the criterion, not 

pursuant to the statute--which incorporates no separation of the enumerated 

criteria to be considered in assessing penalties--but on the totally unsupported assertion that the judge's penalty assessment " ... was in large part 

based on his conclusions that the rank and file miners' negligence was 

imputable to the operator and that the operator was independently negligent, 

conclusions that we have overturned, (and) we must reevaluate the penalties 

to be assessed." Page 7, 

The decision below, however, does not suggest, much less state, 

that any dollar, percentage, or other numerical value is to be assigned 

to the "negligence", or any of the other criteria listed in section llO(i) 

of the Act. Notwithstanding this void, the maj would now embark 

upon the uncharted waters of independent penalty assessment. My colleagues 

have thus determined that miner Six's death is worth ,000 for each 

violation, contrary to not only the evaluations of the judge below, but 

those of the Secretary and the MSHA Office of Assessments as well. ]._/ Nor 

does the majority herein cure what it views as the deficiencies in the 

opinion below by any independent assignment of numerical or other objective 

indicia to the Act's "negligence" criteria. No future guidance is therefore 

furnished for'either mine operators or the Secretary, and conclusorily 

glossing over the fifty percent penalty reductions may be superficially 

attractive, but falls short of being statutorily satisfactory or in accord 

with the Act. 

]_/The majority's disagreement with the quantum of negligence assigned to 

these violations by the j fails to address the inseparability of the 

six statutorily required criteria required to be considered in penalty 

assessment, and, as noted, review was denied on the issue of penalty assessment, and the parties consequently denied the opportunity to present their 

views thereon. 1469 
The majority thus holds that these penalties are "appropriate and 

consistent with the statutory criteria" (page 7, supra), but its opinion 

is entirely silent as to four of the section llO(i) criteria, does not 

dispute the gravity of the violations, and parses the negligence admittedly 

involved in a manner obviously different than did the judge below, but in a 

manner substantially less explicated. The judge below was closer to the 

mark--and the Act--in noting that the purpose of penalties is deterrence, 

and that the amount warranted for each violation was imposed for that reason. 

Contrary to the majority's opinion herein, that at least is in accord with 

the legislative history of the Act. Legis. Hist. at 603, 628-630. 

As the Senate Committee Report notes: 

"In overseeing the enforcement of the Coal Act the 

Committee has found that civil penalty assessments 

are generally too low, and when combined with the 

difficulties being encountered in collection of 

assessed penalties (to be discussed, infra), the 

effect of the current enforcement is to eliminate 

to a considerable extent, the inducement to comply 

with the Act or the standards, which was the intention 

of the civil penalty system. tr at 629, 

(Emphasis added). 

The majority's contradictory analysis is best summarized in its own 

words, as quoted in the Legislative History: 

"In short, the purpose of a civil penalty is to induce 

those officials responsible for the operation of a 

mine to comply with the Act and its standards." 

Legis. Hist. at 628-629. Page 6, supra. 

In addition to ignoring the procedural requirements of the Act by 

reviewing an issue denied review, and reducing the penalty assessed 

below by 50% founded upon no more than disagreement with the judge, 

the majority has further erred in reversing the judge's imputation of 

non-supervisory miner negligence to the operator for penalty purposes. !±_/ 

The question before the Commission is more properly framed as: 

"If an operator is responsible without fault for a 

violation, should it not also be responsible without 

fault for the penalty imposed for the violation?" 

It is well established that " ... an operator is liable without fault 

for violations of the Act and mandatory standards connnitted by its employees." 

Page 4, supra, (and authorities cited). The statute does not shield the 

operator, nor· should we, from penalty assessment solely because no fault by 

the operator may have been established. An operator acts only through 

!±_/ There is no dispute concerning the imputation of negligence to the operator 

for his agents or supervisory personnel, for penalty purposes. "Thus, where 

agents are negligent, that negligence may be imputed to the operator for 

penalty purposes." Page 6, supra. 

14110 
its employees, and if a non-supervisory or rank and file miner has violated 

the Act--indisputably the case here--and negligence is established--also 

not in dispute--that negligence is properly required to be considered in 

assessing penalties. United States v. Illinois Central Railroad Co., 

303 U.S. 239, 244 (1938). 

Here, both supervisory and non-supervisory miner negligence 

unquestionably occurred. To artificially allocate penalty dollars 

for that negligence between the operator and its rank and file miners 

provides a ready avenue for an operator to escape penalties and their 

intended deterrent effect. The operator which structures its operations 

to avoid supervisory responsibility will now be rewarded. Neither the 

resulting reduced penalty, nor this denied supervision, is in accord with 

the intent of the Act, nor does this scheme accord with the mandatory 

penalty assessment processes required by the Act. 

While one can perhaps conceive of a case in which the only negligence 

could be that of the rank and file miner, this is not that case, and, as we 

have recently noted, examining claims "in a legal vacuum" is contrary to 

Connnission precedent. Frederick G. Bradley v. Belva Coal Co., 4 FMSHRC 982, 

987 (June 1982). The majority's dicta is particularly unfortunate in this 

case, given its unprecedented independent excursion into penalty assessment. 

The majority has apparently read the legislative history as silent 

with regard to the imputation of the negligence of rank and file miners 

to the operator for penalty purposes, and leaped from that reading to 

the assumption that Congress did not therefore intend to include in 

penalty calculations any negligence of the operator's rank and file 

miners. 

However, providing a means for the avoidance or drastic reduction of 

penalties is clearly to undercut compliance, more particularly in this case 

in which there is no question of the presence of negligence admittedly 

assignable to the operator. This operator is therefore not without 

responsibility for the violative actions of its rank and file miners, to 

which it has confessed. 2_/ 

Examination, as the majority suggests, (page 6, supra), of this operator's 

"supervision, training, and disciplining of its employees", reveals that the 

judge below found substantial evidence that this operator's "safety programs" 

contributed to the violations. The majority not only ignores that evidence, 

and cites none to the contrary, but admits that " ••. there may be some 

question about the overall effectiveness of these programs." Page 7, 

Tr. II at 196. 

As to this operator's disciplining its miner-employees for misconduct 

in performing· their assigned duties in violation of the Act--and although 

the decision of the judge below is silent--the majority refers to Miner 

Six's having received " ••• two prior warnings for violations of roof 

control procedures. 11 While Six had received "two unsafe practice reports," 

5/This operator has conceded that " ..• it did have miners who were engaged 

In practices that were stated in those citations. 11 Tr. I at 16. 

1471 
admittedly non-punitive, no disciplinary action was ever taken against 

him, despite his having twice failed in his obligations, to properly set 

a jack as required, and to set temporary supports for the roof in the 

mine section in which he was working. Tr. II at 76-79, 191-192. Nor had 

any non-supervisory miners ever been suspended for safety violations. 

Tr. II at 163-164. 

Miner Endicott had never been warned or otherwise disciplined 

for working under unsupported roof, although the operator had observed 

both Endicott and Six working under such roof on "other occasions." 

Page 3, supra. Tr. I at 94, 151, 160; Tr. II at 77-78. Even more shockingly, neither Miner Endicott nor Foreman Darst received any unsatisfactory slips, much less.warnings, for their action at the time of 

the violations which here resulted in the death of Miner Six. Tr. I at 

151; Tr. II at 132. To ignore roof control violations, as did this 

operator, is to invite precisely the sort of disaster which ensued. !if 

Operator witness Darst, the foreman in charge of these miners, 

testified that he had never issued written warnings or taken any miners 

to the superintendent for "reckless" behavior. Jj Tr. II at 115-116. 

On direct examination this operator named those actually disciplined for 

safety violations; neither the miners here involved nor their supervisor 

were ever so disciplined. Tr. II at 162, 165-168. Indeed, Mine Superintendent 

Roberts made "a conscious decision in this case not to take any disciplinary 

action." ~r. II at 168-169. In response to the judge 1 s questioning, 

Superintendent Roberts agreed that he "didn't consider that what occurred on 

May 5th, 1978 as officially serious as to warrant any disciplinary action 

with the miners involved." Tr. II at 165. 

This operator's supervisory deficiencies are also amply reflected by 

this record. 8/ Although there was an approved safety training program, 

as required by the Act (Tr. I at 26), the record fails to reveal any 

instruction of either miners Endicott or Six, notwithstanding the latter's 

previously known performance deficiencies. 

6/ This operator also stipulated to an admitted fifty-one violations of 

mandatory standard 30 CFR 75.200 between May 1976 and May 1978. Tr.I at 29. 

7/Foreman Darst testified that while he had supervised miners he considered 

to be reckless, "what I call reckless is if he's running a piece of machinery 

and he don't take care of it." Tr. II at 115. 

8/As to instructions to Miner Six to perform the work that killed him, Foreman 

Darst responded to the judge's questioning: (Tr. II at 109). 

Q.91 Is that the only jack that you intended to have him 

knock out? 

A. 

Q.92 

A. 

Yes. 

Is that what you told hfm,? 

No, I just told him to knock the j~cks out with a loader. 

I didn't specify on certain jacks. 

Miner Endicott received no instructions. from Foreman Darst as to what he 

"and Six were supposed to be doing in the 15 Entry." Tr. I at 94, 106-107; 

Tr. II at 108. 

147~! 
In summary, the determination of the judge below that there was 

substantial--indeed ample--evidence that this operator was grossly 

negligent in supervision, discipline and training of its rank and file 

miners is fully supported by this record and SOCCO's negligence, in this 

regard as well, is fully established. There are no more serious derelictions in underground coal mining than those affecting roof control. Must 

there be multiple deaths to warrant imposition of the full penalties 

provided for by the Act? 

I therefore dissent to the reduction of the penalties imposed. 

A. E. Lawson, Commissioner 

1473 
Distribution 

David M. Cohen, Esq. 

American Electric Power Service Corp. 

Fuel Supply Division 

P.O. Box 700 

Lancaster, Ohio 43130 

Alvin J. McKenna, Esq. 

Alexander, Ebinger, Fisher, McAlister & Lawrence 

17 South High Street 

Columbus, Ohio 43215 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Joseph Kennedy 

Fed. Mine Safety & Health Rev. Connnission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1474 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

ELIAS MOSES 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 31, 1982 

Docket No. KENT 79-366-D 

WHITLEY DEVELOPMENT CORPORATION 

DECISION 

This discrimination case raises several issues under section 

lOS(c)(l) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 ~~· (Supp. IV 1980), These issues include whether an operator 

violates section lOS(c)(l) by interfering with a miner's exercise of a 

protected right through coercive interrogation and harassment, and 

whether an operator violates that section by discharging a miner on the 

suspicion or belief that he has exercised a protected right, when in 

fact the miner has not. The judge answered both these questions in the 

affirmative in this case, and for the reasons that follow we affirm his 

decision. 1/ We remand, however, for the limited purpose of allowing 

the parties to present arguments and additional evidence concerni~g the 

proper amount of back pay to be awarded the discriminatee. 

I. 

Elias Moses filed a discrimination complaint alleging that Whitley 

Development Corporation ("Whi.tley") violated section 105 (c) (1) of the 

Mine Act by firing him because it believed he had reported an accident 

at Whitley's mine to the Mine Safety and Health Administration. ]:_! The 

administrative law judge issued a decision concluding that Whitley had 

unlawfully interrogated and harassed Moses as to whether he reported the 

accident and that it had unlawfully discharged him because it suspected 

he had reported the accident, even though he had not. ll The judge 

awarded Moses various forms of relief including reinstatement with back 

pay. We granted Whitley's petition for discretionary review of the 

judge's decision. 

1/ The judge's decision is reported at 3 FMSHRC 746 (March 1981). 

]:_/ Moses filed h~s discrimination complaint under section 105(c)(3) of 

the Mine Act since the Secretary of Labor, after investigating Moses' 

charges, declined to file a complaint on his behalf. 

3/ The judge also found that even if Whitley had not discharged Moses, 

it had nonetheless violated section lOS(c)(l) because it failed to 

retain or rehire Moses solely because he had filed a discrimination 

complaint. Because we agree Moses was in fact illegally discharged, we 

find it unnecessary to review this alternative holding. 

1475 

82-8-13 
The factual background of this case is not complicated. Whitley, 

which is owned by Pascual White and his wife, operates two strip mines 

located in proximity to one another in southeastern Kentucky. In May 

1979, Moses asked Pascual White to hire him as a bulldozer operator. 

Moses had worked for White as a laborer some nine years before. After 

Moses applied for the job, his brother-in-law, an MSHA inspector who 

inspected the Whitley mines, also asked White to hire Moses. White 

testified that he decided to give Moses a job because he felt "pressured" into taking him on, and hired him without checking his ability to 

operate a bulldozer. 3 FMSHRC at 748, 761; Tr. 242-44. !±_/ Moses started 

to work for Whitley on May 9, 1979. 

On June 19, 1979, a bulldozer overturned at the mine where Moses 

was working. Although Moses did not see the accident, he was told about 

it by his foreman, Richard McClure. The next , MSHA inspectors, 

including Moses' brother-in-law, arrived by helicopter to investigate 

the site. :i._/ After they had left 0 McClure asked Moses "if he was the 

one that called the federal on that accidenL" 3 FMSHRC at 

748-49; Tr. 1870 f:j Moses Despite Moses' denial, 

!±./ The judge found that Moses was hired, in part, because of the 

pressure placed upon Pascual White Moses 7 brother-in-law~ the MSHA 

inspector. 3 FMSHRC at 753~ 76L (Substantial evidence supports the 

judge's rejection of Whitley?s suggestion that this pressure was the 

only reason Moses was hired. Id,) We endorse the judge's conclusion 

that it was !fimproper" for the. brother-in-law, an MSHA inspector, to ask 

Whitley's owner to hire Moses. Id. at 756. While Whitley expresses 

general criticism of this incident (Br. at 3), it advances no claim that 

it was legally prejudiced in the present case by any impropriety committed 

by the MSHA inspector in question prior to the operative events and 

proceedings herein. 

5/ White testified that he was aware that he could request inspection 

by someone other than Moses' brother-in-law if he feared biased inspection. 3 FMSHRC at 761; Tr. 260. MSHA supervisory inspector Kenneth 

Howard, the brother-in-law1 s supervisor, also testified: 

[I]t's not our practice to send an inspector to inspect a job where a member of his family is working. 

If I'd known .•• Moses was present at the time ••• 

and that they were related[,} I wouldn't have had 

[Moses' brother-in-law] sent out there. Permissiveness [in the inspection under such circumstances] is 

a logical assumption to make. 

3 FMSHRC at 751; Tr. 124. 

E_/ Section 103(g)(l) of the Mine Act grants miners the right to obtain 

an immediate inspection by MSHA if they believe a violation of the Act 

or of a mandatory health or safety standard has occurred, or if they 

believe an imminent danger exists. It also prohibits MSH.A from revealing the name of the miner requesting the inspection. The section 

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 

(footnote 6 continued) 

1476 
McClure accused him in front of other employees, on two subsequent 

occasions, of reporting the accident to MSHA. LI 

Near the end of June 1979, Moses was laid off because the bulldozers at the mine were out of order. He was told he would be recalled 

when repairs on the equipment were completed. On July 2, 1979, while 

the repairs were still in progress, Moses and his wife drove to Whitley's 

repair shop to pick up his paycheck. Moses went inside and met with 

White. There were conflicting versions of the heated conversation that 

followed and the judge credited Moses' account over that of White. 3 

FMSHRC at 749-50, 756-57. Moses testified that he and White argued over 

whether he had called the inspectors, that he told White he had not, and 

that he would make White prove he had. According to Moses, at the end 

of the argument White threatened to fire him. Moses' wife, who overheard the argument, corroborated Moses' story. 

Moses drove that night to the home of MSHA supervisory inspector 

Kenneth Howard. He told Howard he had been accused of reporting the 

bulldozer accident and asked Howard to "clear" his name. Howard agreed 

to go to the mine the next morning and inform White that the accident 

had not been reported by Moses, but rather by a woman whose name had to 

be kept confidential. 

footnote 6 cont'd. 

believe that a violation of this Act or a mandatory 

health or safety standard exists, or an imminent 

danger exists, such miner or representative shall 

have a right to obtain an immediate inspection by 

giving notice to the Secretary or his authorized 

representative of such violation or danger. Any 

such notice shall be reduced to writing, signed by 

the representative of the miners or by the miner? 

and a copy shall be provided the operator or his 

agent no later than at the time of inspection, 

except that the operator or his agent shall be 

notified forthwith if the complaint indicates that 

an imminent danger exists. The name of the person 

giving such notice and the names of individual 

miners referred to therein shall not appear in such 

copy or notification. 

LI Concerning the two subsequent conversations after McClure's initial 

questioning, Moses stated that McClure first said to him, in front of 

others, "He called an inspector on us. He called his brother-in-law." 

Tr. 63. Moses also testified that after the bulldozer driver who was 

involved in the accident returned to work, McClure said, in front of the 

driver, "Oh, he's happy. He called his brother-in-law inspector." The 

driver responded, "You mean they was out here?" And McClure replied, 

"Oh yeah, they come out." Moses testified that at this point, he 

stated: "I don't want to hear it anymore. I'm going to make you prove 

it." Tr. 64. The judge credited Moses' testimony. 3 FMSHRC at 756. 

147'7 
The following morning, July 3, 1979, Moses went to the mine seeking 

confirmation that he still had a job. At that time, the bulldozers had 

not yet been repaired. Moses spoke with McClure, who offered Moses the 

opportunity to work filling drilled holes with explosives. Moses testified the of fer was made in a derogatory fashion. An exchange of profanities ensued. McClure testified that he said if Moses was not,going 

to work, it would be better for Moses to get in his truck and "go on to 

the house." 3 FMSHRC at 750, 754; Tr. 236. Moses took this to mean he 

was fired. 

Later that same morning, Inspector Howard arrived at the mine. 

White was not there, so Howard talked to McClure. Howard explained that 

Moses had been to see him the night before and feared he would be discharged because of suspicions he had asked MSHA to investigate the 

accident. Howard assured McClure that the accident had not been reported 

by Moses. McClure told Howard he had already fired Moses that morning. 

3 FMSHRC at 751, 754; Tr. 117. 

Moses thereafter filed a discrimination complaint with MSHA. 

Before the bulldozers were repaired, Whitley received a copy of the 

complaint pursuant to section 105(c)(2) of the Mine Act. After the 

bulldozer repairs were completed, Moses was not recalled to work. 

II. 

The first issue to which we turn is whether Whitley coercively 

interrogated and harassed Moses concerning the reporting of the accident 

and, if so, whether its actions violated section lOS(c)(l) of the Act. 

The underlying question is whether such interrogation and harassment may 

ever constitute a violation of section 105(c)(l). 

Section 105(c)(l) states that "no person shall discharge or in any 

manner discriminate against ••. or otherwise interfere with the exercise 

of the statutory rights of any miner." (Emphasis added.) We have 

previously noted the high priority Congress placed upon the unencumbered 

exercise of rights granted miners under the Mine Act. David Pasula v. 

Consolidation Coal Company, 2 FMSHRC 2786, 2790 (October 1980), rev'd 

on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 

1211 (3d Cir. 1981). As we concluded in Pasula, Congress viewed the 

free exercise of miners' rights as "essential to the achievement of safe 

and healthful mines." 2 FMSHRC at 2790. Furthermore, it is clear that 

section 105(c)(l) was intended to encourage miner participation in 

enforcement of the Mine Act by protecting them against "not only the 

common forms of discrimination, such as discharge, suspension, demotion 

••. ,but also against the more subtle forms of interference, such as 

promises of benefit or threats of reprisal." S. Rep. 95-191, 95th 

Cong., 1st Sess. 36 (1977) ["S. Rep."], reprinted in Senate Subcommittee 

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

History of the Federal Mine Safety and Health Act of 1977, at 624 (1978) 

["Legis. Hist."]. 

We find that among the "more subtle forms of interference" are 

coercive interrogation and harassment over the exercise of protected 

rights. A natural result of such practices may be to instill in the 

minds of employees fear of reprisal or discrimination. Such actions may 

1478 
not only chill the exercise of protected rights by the directly affected 

miners, but may also cause other miners, who wish to avoid similar 

treatment, to refrain from asserting their rights. This result is at 

odds with the goal of encouraging miner participation in enforcement of 

the Mine Act. We therefore conclude that coercive interrogation and 

harassment over the exercise of protected rights is prohibited by 

section 105(c)(l) of the Mine Act.§.../ 

This brings us to McClure's conversations with Moses. The judge's 

findings with respect to the coercive nature of McClure's interrogation 

of Moses and of McClure's comments concerning him are supported by 

substantial evidence and to the extent that these findings are credibility resolutions, will not be disturbed on review. Under section 

103(g)(l) of the Act, Moses had the right to request an tion and 

to do so anonymously. The persistence with which the subject of his 

supposed reporting of the bulldozer accident was raised and the accusatory manner in which it was done could logically result in a fear of 

reprisal and a reluctance to exercise the right in the future. These 

conversations thus constituted prohibited interference under section 

105(c)(l). We address below, as part of our analysis of the discharge 

issue, the question of whether Moses' lack of actual protected activity 

automatically precludes a finding of interference or discrimination. As 

we explain below, we conclude that it does not. 

IIL 

With regard to the issue of whether Whitley violated section 

105(c)(l) by discharging Moses on the suspicion he had reported the 

accident, we first must determine whether Moses was in fact fired. As 

a threshold argument, Whitley asserts that he was not, contending that 

he voluntarily quit after refusing alternative employment. We conclude, 

however, that substantial evidence supports the judge's finding that 

Moses was discharged. 

During the crucial discussion on July 3, 1979, McClure told Moses 

to 11 go on to the house.JI This term, the judge found, was commonly used 

in the coal fields as a synonym for discharge. 3 FMSHRC at 754. The 

judge's finding is supported by the testimony by White himself. Tr. 

265. The judge also found that Inspector Howard stated that McClure had 

told him later the same morning that Moses had been fired. • at 751, 

754. The judge credited Howard's testimony, and we see no reason to 

disturb his finding. Finally, the j deemed it significant that 

McClure failed to tell Howard that Moses had not been d when 

Howard explained to McClure that Moses could file a discrimination 

complaint over his dismissal. Id. at 754. We agree with the judge that 

if McClure had been misunderstood by Moses, surely McClure would have 

explained to Howard at that point that he had not fired Moses. 

This is not to say that an operator may never question or comment 

upon a miner's exercise of a protected right. Such question or comment 

may be innocuous or even necessary to address a safety or health problem 

and, therefore, would not amount to coercive interrogation or harassment. Whether an operator's actions are proscribed by the Mine Act must 

be determined by what is said and done, and by the circumstances 

surrounding the words and actions. 

1479 
Did Moses' discharge violate section 105(c)(l) of the Mine Act? 

The judge found the discharge occurred because the operator thought the 

complainant had engaged in protected activity, even though he had not. 

Section 105(c)(l) prohibits discharge, discrimination, or interference 

"because" of "a miner's exercise of any statutory right afforded by 

[the] Act." While a literal interpretation of this provision might 

require the actual or attempted exercise of a right before the protection of section 105 comes into play, we reject such a reading for two 

reasons. First, such an interpretation would frustrate Congressional 

intent that miners fully exercise their rights as participants in the 

enforcement of the Mine Act. Second, that approach would also wrongly 

fail to redress or deter situations where an operator, with the intent 

of frustrating protected activity 9 takes adverse action against an 

innocent miner. 

Section 105(c)(l) was intended to "be construed expansively to 

assure that miners will not be inhibited in any way in exercising any 

rights afforded by the [Act)." S. Rep. at 36, Legis. Hist. at 62L.c 

(emphasis added). Hiners would be less likely to exercise their 

rights if no remedy existed for discriminatory action based on an 

operator's mistaken belief that a miner had exercised a protected 

right. Indeed, the adverse effect of such action might be even more 

debilitating than discrimination over actual protected activity. In 

such instances, employees could reasonably fear that might be 

treated adversely on the basis of suspicion alone, and thus would seek 

to avoid even the appearance of asserting their r The same 

reasoning applies with regard to the various forms of interference such 

as coercive interrogation and harassment previously discussed in this 

decision. An equally important consideration is that an affected 

miner suffers as much by mistake as he would if he were discriminated 

against because he had actually engaged in protected activity. We 

conclude that discrimination based upon a suspicion or belief that a 

miner has engaged in protected activity, even though,in fact, he has 

not, is proscribed by section lOS(c)(l). 

We now examine the evidence surrounding Moses' termination. In 

Fasula, supra, we set forth an analytical framework for deciding discrimination cases. We concluded that the complainant establishes a 

prima facie case of a violation of section 105(c)(l) if he proves by a 

preponderance of the evidence that (1) he engaged in protected activity, 

and (2) that the adverse action was motivated in any part by the protected activity. 2 FMSHRC at 2799. We also held that an operator may 

respond by either rebutting the prima facie case or if it cannot rebut, 

by showing in defense that even if part of its motive were unlawful, 

(1) it was also motivated by the miner's unprotected activities, and 

(2) would have taken the adverse action in any event for the unprotected 

activities alone. Id. at 2800. See also Robinette v. United Castle 

~~~C_o., 3 FMSHR~ 803, 818 n. 20 (April 1981). A similar, but modified, 

framework is appropriate for resolving allegations of discrimination for 

the suspected exercise of a statutory right. In such cases, the complainant establishes a prima facie case by proving that (1) the operator 

suspected that he had engaged in protected activity, and (2) the adverse 

action was motivated in any part by such suspicion. The operator may, 

of course; still successfully rebut or further defend along the lines 

summarized above. 

1480 
Applying this analysis to the facts at hand, there is no doubt on 

this record that White and McClure believed Moses had reported the 

bulldozer accident to MSHA. The next inquiry concerning the prima facie 

case is whether Whitley discharged Moses in any part because of this 

belief. 

The judge found that White was very "sensitive" to what he regarded 

as MSHA influence on his operation, and consequently "resented the 

reporting of [the] accident" and was very concerned to discover who had 

reported it. 3 FMSHRC at 753. The judge also credited Moses' wife's 

testimony that during the July 2d conversation White told Moses "You 

don't work for them damn inspectors. I write your checks." 3 FMSHRC at 

749, 757; Tr. 170. This testimony is significant because it tends to 

corroborate Moses' statement that during their discussion about calling 

the inspector, White said "You go get [your brother-in-law, the inspector], 

and .•• you'll not work here any more." Tr. 69. Finally, on July 3d, 

the day of the firing, McClurevs and Mosesv argument, at least in part, 

involved who had called MSHA. This evidence supports the conclusion 

that Moses lost his job, at least in part, because of Whitley s belief 

that Moses had engaged in a protected communication with MSHA. Thus, we 

conclude that Moses established a prima facie case of discrimination. 

We must next examine whether Whitley nevertheless would have discharged ~oses for certain unprotected activities alone that it asserts 

were the cause of his departure. Whitley argues that Moses repeatedly 

failed to discharge his duties competently, and also used bad language 

toward McClure and White. The evidence, however, does not support a 

successful defense against the prima facie case. 

Concerning the company's allegations of Moses' inept performance as 

a bulldozer driver, James Davis, who was in charge of servicing the 

bulldozers, stated that the breakdowns in the equipment were "about the 

same" after Moses came to work as they were before. Tr. 138. Davis 

testified that he had watched Moses operate a bulldozer every day Moses 

worked, and had never seen him misuse the equipment. Tr. 131. When 

asked if Moses possessed the skill of other operators, Davis said he had 

seen better bulldozer operators but he had also seen worse. Tr. 137. 

Bobby Durham, who also worked with Moses, concurred in Davis' assessment. Tr. 153-54. This evidence undercuts the company's claim that 

Moses was irresponsible with the equipment. Further, Whitley failed to 

present any evidence as to what its usual practices and policies were 

with respect to bad operators of equipment. As we have noted, evidence 

of practices and policies consistent with the adverse action taken may 

be persuasive support of an operator's defense of justifiable cause. 

Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). We have 

previously emphasized that it is not our role to concern ourselves with 

the general wisdom or fairness of an operator's decision to take an 

adverse action. See Belva Coal, supra, 4 FMSHRC at 993-94; 

Phelps Dodge Corp., 3 FMSHRC 2508, 2516-17 (November 1981), 

review filed, No. 81-2300, D.C. Cir., December 11," 1981. However, in 

this case, we find Whitley's evidence regarding Moses' allegedly poor 

performance to be so weak that this defense seems virtually pretextual, 

and we therefore agree with the judge (3 FMSHRC at 760) that Whitley 

1481 
failed to show that it would have fired Moses in any event for this 

asserted reason. '}_/ 

Whitley's other justification for termination was that Moses had a 

bad attitude and used abusive language with his supervisors. The judge 

found that because Moses had worked for respondent in 1970, Whitley 11must have known what sort of person he was hiring ..• in 1979, 11 and 

that therefore the record failed to support a finding Moses would have 

been discharged for those reasons alone in any event. 3 FMSHRC at 761. 

Unlike the contention that Moses was an unskilled bulldozer operator, 

the record reveals Moses' use of bad language (Tr. 12, 70, 190, 206, 

236), and also shows his "bad attitude," at least in the eyes of White. 

Tr. 260. Whitley argues that its justification cannot be dismissed on 

the basis of speculation that \\lhite knew what Moses' personality was 

like merely because Moses had worked for him 9 years before. If this 

were all that supported the judgevs conclus we might well agree. 

There is nothing in the record to indicate what Moses' work habits and 

relationships were when he was previously employed. However, Whitley 

presented no evidence showing that prior to White's and McClure's angry 

reactions over Moses' supposed reporting of the accident they were 

concerned enough with Moses to fire him for those reasons. Indeed, as 

the judge correctly noted, much of the language and improper attitude 

arose in response to Whitley's unlawful and provocative to 

determine if Moses had called the inspectors. 3 FMSHRC at 761. We thus 

conclude that Whitley has not proven that it would have fired Moses for 

his language and attitude alone. In sum, we affirm the judgeis conclusion Whitley violated section 105(c)(l) when it fired Moses on the 

belief that he had exercised a protected right. 

IV. 

The final issue concerns back pay. In his notice of hearing, the 

judge advised the parties of his intent to render an oral decision at 

the close of the evidence which would later be reduced to writing. At 

the close of the hearing, however, the judge did not render a bench 

decision, but rather requested that additional evidence be submitted, 

including Moses' payroll record. Neither party had introduced any 

evidence concerning back pay at the hearing. After Whitley sent the 

judge a copy of Moses' payroll sheet (marked Exhibit 11H11 ), the judge 

issued his written decision. The judge ordered, among other things, 

that Whitley reinstate Moses and pay him back wages on the basis of a 

40-hour week. 

J_/ In an attempt to establish Moses' abuse of equipment, Whitley submitted numerous repair bills for its equipment. Moses was not the only 

person to operate the bulldozers, and there was no evidence connecting 

Moses to any of the repairs which were paid for during and after the 

time Moses was employed by Whitley in 1979. Although Whitley argues 

that the judge improperly interpreted the bills in a variety of ways, 

the bills are but one item leading to the judge's conclusion that Moses' 

allegedly poor performance would not have led to his discharge. Other 

evidence supports his findings, so that Whitley's justifications fail 

regardless of consideration of the bills. 

1482 
Whitley argues that it was deprived of due process when the judge 

failed to issue an oral decision at the close of the evidence. Whitley 

also appears to be contending that such a decision could not have included the remedy of back pay since no evidence on that issue had been 

offered. It further argues that it was denied an opportunity to present 

argument and further evidence with respect to the issue after it submitted the payroll sheet. 

We find no fault in general with the decisional process adopted by 

the judge. The judge's intent to issue a decision from the bench at the 

hearing's close was not an ironclad guarantee. The dynamics of trial 

often reveal complicated issues requiring further contemplation. Moreover, section 113(d)(l) of the Act requires a judge to make a decision 

constituting a "final disposition of proceedings, 11 and Commission Rule 

65(a) states that the judge's final disposition of the proceedings 

"shall be in writing." 29 C.F.R. § 2700.65(a). We have previously held 

that a bench decision is not a "final disposition" until it is written. 

Capitol Aggregates, Inc., 2 FMSHRC 1040, 1041 (May 1980). Thus, even 

had the judge issued his intended oral decision, it could have been 

subject to revision by the judge. Moreover, a claimant's failure to 

present evidence as to back pay is not tantamount to abandoning a claim, 

and, unless there are compelling reasons to the contrary, relief should 

nonetheless be awarded. Bobby Gooslin v. Kentucky Carbon Corp., L; 

FMSHRC 1, 2-3 (January 1982), 

The record in this case was left open at the close of the hearing 

for the submission of additional evidence regarding back pay. Whitley 

submitted the information requested and, indeed, offered more. 10/ 

Under these circumstances, we perceive no abuse of due process. Nor do 

we believe, strictly speaking, that Whitley was denied an opportunity to 

present argument concerning the payroll data it submitted or to adduce 

further evidence with respect to the issue. Certainly no action by the 

judge foreclosed such a submission. Also, Whitley did not, as it might 

have done, present an interpretive analysis with its data; nor did it, 

as it should have done, indicate to the judge or to Moses that it had 

additional evidence it wished to submit. In silence and inaction, 

Whitley came close to waiving whatever objections it might have had. 

Yet we recognize that it may have been difficult for the parties 

to know how to proceed with regard to back pay. Although the judge 

stated in his notice of hearing that the issues to be tried were 

"whether [Moses] was discharged in violation of section 105(c)(l) of the 

Act so as to entitle him to ••. relief ••• including reinstatement ••• 

with back pay and other benefits," he did not spell out for the parties 

the procedural course he wished to take with regard to the back pay 

issue. While the judge was not compelled to do so, under the circumstances of this case both parties might well have benefited from a 

detailed explanation of the procedures to be followed. Therefore, in 

accompanying the payroll data, Whitley's attorney 

stated to the judge: "If after inspecting the enclosed documents you 

require any further information regarding this matter I will be most 

happy to provide whatever you desire." 

148:3 
the interest of procedural regularity and to insure fairness to the 

parties, we remand this matter to the judge for the limited purpose of 

reconsideration of back pay issues concerning the proper amount, if any, 

to be awarded Moses. The judge should afford the parties the opportunity to present any argument and any additional relevant evidence on 

back pay issues, including but, not limited to, the interpretation· of 

the payroll data already submitted, and the proper number of hours per 

week upon which to compute back pay. The parties may also submit evidence, 

if any, with respect to any actual interim earnings of Moses since 

July 3, 1979. 

For the foregoing reasuns, we affirm the judge 1 s conclusions that 

Whitley violated section lOS(c)(l) of the Mine Act, and we remand for 

the expedited reconsideration of back pay issues. 

1484 
Distribution 

William E. Hensley, Esq. 

First National Bank Building 

Corbin, Kentucky 40701 

David Patrick, P.S.C. 

117 Short Street 

P.O. Box 9 

Harrodsburg, Kentucky 40330 

Administrative Law Judge Richard Steffey 

Fed. Mine Safety & Health Rev. Connnission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1485 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

FLORENCE MINING COMPANY 

HELEN MINING COMPANY 

ONEIDA MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

W~HINGTON, D.C. 20006 

August 31, 1982 

Docket Nos. 

NORTH AMERICAN COAL CORPORATION 

DECISION 

PITT 77-15 

PITT 77-16 

PITT 77-17 

PITT 77-18 

PITT 77-19 

PITT 77-23 

IBMA 77-32 

This case arose under the Federal Coal Mine Health and Safety Act 

of 1969, 30 U.S.C. § 801 et seq (1976) (amended 1977) C1the Coal Act"). 1/ 

The issue is whether the administrative law judge erred in concluding -

that 30 C.F.R. § 75.1405 does not apply to certain mine haulage equip~ 

ment that travels both on and off tracks. For the reasons that follow~ 

we reverse the judge's decision. 

The standard at issue essentially reiterates section 314(f) of the 

Coal Act and provides: 

All haulage equipment acquired by an operator of a coal mine 

on or after March 30, 1971, shall be equipped with automatic 

couplers which couple by impact and uncouple without the 

necessity of persons going between the ends of such equipment. 

All haulage equipment without automatic couplers in use in a 

mine on March 30, 1970, shall also be so equipped within 4 

years after March 30, 1970. 

1/ On March 8, 1978, this case was pending on appeal before the 

Depar.tment of Interior's Board of Mine Operations Appeals ("the Board"). 

Accordingly, it is before the Commission for disposition. 30 u.s.c. 

§ 961 (Supp. IV 1980). The Mine Safety and Health Administration 

(MSHA) has been substituted in the caption for its predecessor agency, 

the Mining Enforcement and Safety Administration (MESA). 

In this case review was sought of an unabated notice of violation. 

For the reasons'stated in our decision in Eastern Associated Coal Corp., 

4 FMSHRC 835 (May 1982), we will review the merits of the notice at this 

time. 

1486 82-8-14 
30 C.F.R. § 75.1405-1, which delineates the scope of the above standard, 

provides: 

The requirement of § 75. 1405 with respect to automatic 

couplers applies only to track haulage cars which are 

regularly coupled and uncoupled (emphasis added). 

The six notices of violation at issue allege that the operators (all 

subsidiaries of the North American Coal Company at the time the notices 

were issued) failed to equip "rubber-rail" mine cars with automatic 

couplers. !:./ The issue is whether the standard applies to "rubber-rail" 

equipment. 

This case has an involved procedural history. of the 

issue began on April 3. 1974? when the companies filed separate petitions 

for modification of § 75.1405 under section 30l(c) of the Coal Act. The 

petitions alleged that the standard was inapplicable to rubber-rail 

equipment or, in the alternative, that application of the standard would 

diminish safety. The petitions for modification were consolidated. On 

March 26, 1976, the administrative law judge ruled that the rubber-rail 

vehicles were not "track haulage cars" within the meaning of § 75.1401-1. 

He made no findings with respect to the diminution of argument. 

The Secretary appealed this decision to the Board of Mine Operations 

Appeals. 

Thereafter, the Board ruled in a different case that a petition for 

modification alleging that a mandatory safety standard was inapplicable 

did not state a claim upon which relief could be granted under section 

30l(c) of· the Coal Act. Itmann Coal Co., 6 IBMA 121, 128 (1976). 

Subsequently, the Board reviewed the judge's modification decision in 

light of its holding in Itmann and concluded: (1) the applicability of 

§ 75.1405 to rubber-rail equipment was not a proper issue under section 

30l(c) of the Coal Act, but (2) the issue could be litigated if the 

companies were issued notices of violation of § 75.1405 and applied for 

review of the notices under section 105 of the Coal Act. Oneida Mining 

Co., 6 IBMA 343, 349-350 (1976). 

The Secretary then issued the presently contested notices of 

violation. The companies filed for review and the case was assigned to 

the same judge who had heard the modification case. The parties stipulated that the issue before the judge was whether § 75.1405 was 

appl±cable to rubber-rail vehicles and that this issue should be decided 

on the basis of certain specified exhibits and specified portions of the 

testimony from the previous modification proceeding. 

2/ Rubber-rail equipment can be used both on and off track. When 

operating on track, a rubber-rail car is pulled by a small locomotive 

and moves along the track on steel wheels similar to traditional railroad equipment (Tr. 149). When the car reaches the end of the track, 

the rubber tires, which are suspended along the side of the car, are 

dropped and they "literally lift the v~hicle up off the rail11 (Tr. 149). 

The car is then pulled by a battery powered vehicle and can move along 

the mine floor or in the supply yard where there are no tracks. 
On April 20, 1977, the administrative law judge rendered a decision, 

the substance of which was virtually identical to his decision in the 

modification case, finding that the regulation was not applicable to 

the company's rubber-rail cars. Prior to his discussion and resolution 

of the issue, the judge set forth those findings of fact he believed to 

be essential. The findings which are relevant for purposes of our decision are those pertaining to the equipment, the method of coupling and 

uncoupling the equipment, and MESA's history of enforcement of the 

automatic coupler standard. 

The judge found that approximately 600 rubber-rail cars were operating at the six mines. The cars are coupled and uncoupled manually by the 

draw bar and pin method (Dec. at 3). The draw bar is a steel bar 1-1/2 

inches thick, 4 inches wide and 30 to 36 inches long (Tr. 179-180). It 

serves as the horizontal link between two cars and is secured by steel 

pins which are inserted vertically through holes in npocketsu at the end 

of each car. Coupling takes place when the pocket holes are aligned 

with holes at each end of the draw bar and the pins are dropped through 

the holes in the pockets. The process is reversed for uncoupling (Tr. 

168). Alignment of the draw bar holes with the pocket holes and insertion of the pins are done manually. 

The judge found that the rubber-rail cars are used solely to 

transport men, equipment and supplies. 3/ He also found that the cars 

are used intermittently and that 2 to 3-times as many couplings and 

uncouplings are performed off track as are performed on track (Dec. at 

3-4). 

The judge found that the rubber-rail cars are loaded on the surface 

(in the supply yard) and moved on track into the mine in trips of 5 to 

15 cars (Dec. at 4 and Tr. 151-155). The trips are pulled by locomotives 

(Tr. 150). He found that once in the mine the trips are broken down 

into small groups of 1 to 5 cars, the wheels are lowered and the small 

trips are pulled by tractors to the section where the supplies are 

needed (Dec. at 4). The process is reversed after the supplies are 

unloaded. !:../ 

At the time the evidence was taken below, MESA was divided into 9 

administrative districts. Each district was headed by a district 

manager responsible for enforcement of the Act in his district. The 

mines in this case were located in District 2, with headquarters in 

Pittsburgh. The judge found that from the passage of the Coal Act until 

3/ Coal is moved out of the mines on conveyor belts. 

4/ After the cars are uncoupled, a tractor picks up the empty cars, 

one by one, ana takes them back to the track. The locomotive goes from 

section to section picking up cars which have been put on the track. 

Once the locomotive has about 15 cars it pulls the trip back to the 

supply yard. After a complete return trip is assembled underground, no 

further coupling or uncoupling occurs ~ntil the trip reaches the supply 

yard (Tr. 154-155). 

1488 
February 1974, § 75.1405 was not enforced with respect to rubber-rail 

cars in District 2 (Dec. at 4). He also found that, in a memorandum 

dated November 21, 1973, the district manager indicated that when the 

regulation was written, § 75.1405 was not intended to apply to rubbertired haulage cars and was intended to apply only to track haulage cars 

(Dec. at 5). The judge also found that during this period of nonenforcement the companies, relying on this policy of non-enforcement, 

purchased 230 rubber-rail cars not equipped with automatic couplers 

(Dec. at 4). The judge further found that the Secretary at one time 

proposed to amend § 75.1405 to specifically include rubber-rail cars 

(Dec. at 6). 5/ Finally, he found that MESA's enforcement policy 

changed on February 7, 1974, and the Secretary began applying the 

automatic coupler requirement to rubber-rail vehicles in District 2. 

The judge~s ultimate conclusion was that rubber-rail cars are not 

"track haulage cars" within the meaning of § 75.1405-L He noted that 

§ 75.1405 applies to "all haulage equipmenL 11 He found that the 

phrase "all haulage equipment 11 is not ambiguous, that the word 11haulage 11 

as used in mining parlance refers to the hauling of men and supplies as 

well as ore, and that the word uequipment 11 is very broad. Thus, he found 

that if the statutory language had been literally applied, there would 

be little doubt that rubber-rail haulage equipment would be required to 

have automatic couplers (Dec. at 5-6). However~ in implementing 

§ 75.1405, the Secretary promulgated § 75.1405-1 which states that 

§ 75.1405 applies "only to track haulage carso" (Emphasis added,) The 

judge attempted to determine whether Congress had intended that section 

75.1405 apply "only to track haulage cars. 11 He first examined the 

legislative history. The sole reference in the legislative history to 

section 314(f) is contained in a letter from the Director of the Bureau 

of Mines to Congressman John Dent. Congressman Dent had asked the 

Director to conduct a technological review of safety standards which had 

been proposed as amendments to the House bill. The automatic coupler 

provision was one of those amendments. The Director stated "[t]he 

provisions relative to coupling mine cars ••• will make a positive 

contribution to safety." The judge found this reference to be uninstructive (Dec. at 6). 

Next, the judge examined the structure of section 314 itself and 

found this to be persuasive: 

Perhaps the best indication of what Congress intended can be 

obtained from viewing section 314 of the Act in its entirety. 

It consists of six subsections, "a" through "f" and is headed 

"Hoisting and Mantrips." Subsections "a," "b, 11 "c," and "d" 

1f The proposed amendment stated: 

§ 75.1405-1 automatic couplers, haulage equipment. The 

requfrement of § 75.1405 with respect to automatic couplers 

applies only to track haulage cars, including rubber-rail 

cars, which are regularly coupled and uncoupled. 

The proposal was one of many contained in a February 10, 1975, MESA 

memorandum which was addressed to all .underground coal mine operators 

(Exhibit 12). The memorandum stated that hearings would be conducted on 

the proposed changes and requested the operators to submit comments. 

The change with respect to rubber-rail cars was never adopted nor was 

the change ever formally proposed in the Federal Register. 

1489 
deal specifically with hoists and generally with the 

transportation of men and material. However, in "e" locomotives and haulage cars are mentioned for the first time in 

connection with the requirement that they have automatic 

brakes. Next follows 314(f) and its reference to "all haulage 

equipment." I believe subsections "e" and "f" are generally 

different than the preceding four subsections and should be 

read together. Following this approach, the phrase "haulage 

equipment" would relate back to subsection "e" and its mention 

of locomotives and haulage cars. Since in customary coal 

mining jargon, the word "car" and the term "haulage car" has 

reference to vehicles used on railroad track, I would conclude 

that this is what Congress had in mind, even though the phrase 

"all haulage eqtiipment" when taken out of context is not 

patently ambiguous outside the mining industry (Dec. at 7, fn. 

12). 

The judge stated that the Secretary in promulgating § 75.1405-1 had done 

what Congress intended--that is, had made the automatic coupler provision 

applicable to equipment which solely traveled on track (Dec. at 6-7). 

He also concluded that because the record showed rubber-rail cars at the 

6 mines were used only intennittently, were primarily operated off track 

and represented a technological variant not contemplated by Congress, 

they were not "track haulage cars" within the meaning of § 75.1405-1 

(Dec. at 6-7). 

Finally, the judge found that MESA's enforcement practice for the 

first four years of the Coal Act limited the coverage of § 75.1405 to 

locomotives and haulage cars which traveled on track, and concluded that 

this constituted a "binding construction of the statute" (Dec. at 7). 

The Secretary asserts that the rubber-rail vehicles are "track 

haulage cars" which are "regularly coupled and uncoupled11 and therefore 

come within the purview of § 75.1405. He first argues that the judge's 

decision effectively modifies § 75.1405-1 to apply to haulage cars that 

operate exclusively on track. He asserts such an interpretation is 

erroneous because the Coal Act was remedial and regulations adopted 

thereunder should be given a liberal construction. He states that the 

purpose of section 314(f) of the Coal Act and § 75.1405 is to prevent 

accidents while track haulage equipment is coupled and uncoupled. In 

his view, it makes no difference if the cars are coupled and uncoupled 

on the track only some of the time. In short, the Secretary argues that 

interpreting the standard so as to include rubber-rail equipment best 

effectuates its purpose. 

The Secretary next argues that the rubber-rail vehicles are "regularly 

coupled and uncoupled. 11 According to the Secretary the proper test for 

regularity should be whether the equipment is coupled or uncoupled in 

the normal course of routine operation or on a cyclic basis. The Secretary 

1490 
argues that in testifying about rubber-rail procedures the companies' 

safety manager described routine on track couplings and uncouplings both 

in the supply yard and the point of track nearest the working sections 

(citing to Tr. 150-155). 

The Secretary also argues that the agency cannot be estopped from 

enforcing § 75.1405-1 if it applies to rubber-rail equipment. An agency, 

the Secretary states, can change its interpretation of a regulation if 

that change is within the scope of the regulation. 2._/ 

The operators maintain that, although the language of section 314(£) 

requires automatic couplers on "all haulage equipment, 11 the judge and 

the parties agree that Congress never intended the standard to be applied 

literally. They also assert that the parties agree that § 75.1405-1 

attempts to make explicit the limitation intended, but not stated by 

6/ The Secretary makes two other arguments which do not warrant 

extended discussion. First, he argues that the judge erred in admitting 

the testimony of the then district manager of District 2, Robert Barrett, 

concerning his understanding of the proper interpretation of § 75.1405. 

Barrett had a dual role with regard to the regulation. He was assigned 

by the director of the Bureau of Mines to coordinate the efforts of 

those writing the Coal Act's implementing regulations--including 

§ 75.1405-1 (Tr. 40, 46). Moreover, as district manager for District 2 

he was responsible for enforcing all standards in the district. Barrett 

testified as to his opinion concerning the type of equipment the drafters 

of section 75.1405-1 intended to cover. He also testified concerning 

the enforcement policy he pursued while district manager (Tr. 49-56, 59-

63, 81-88, 91). The Secretary asserts the testimony of a participant in 

the drafting of a regulation cannot be admitted to prove regulatory 

intent. He asks that any findings or conclusions based upon Barrett's 

testimony be rejected. A review of the judge's decision, however, fails 

to indicate any findings of fact or conclusions of law based upon 

Mr. Barrett's testimony concerning his view of the drafters' intent or 

his understanding of Congressional intent in enacting section 314(f). 

(Finding of fact No. 12 relates to a memorandum issued by Barrett). 

Thus, even if we were to assume that admission of Barrett's testimony 

regarding intent was erroneous, it was harmless error. 

Second, the Secretary asserts that the Board of Mine Operations 

Appeals in Canterbury Coal Co., 6 IBMA 276 (1976), affirmed a judge's 

decision disallowing a modification of § 75.1405 for several types of 

track equipment, including rubber-rail equipment, and refused to stay 

its decision with respect to rubber-rail equipment until the instant 

case was decided. The Secretary views this as de facto recognition by 

the Board that the standard applies to rubber-rail equipment. However, 

the Board's refusal to stay the part of the proceeding relating to 

rubber-rail equipment was based on factual differences it perceived 

between the Canterbury case and this case. 6 IBMA at 286. Moreover, 

the validity of the application of the standard to rubber-rail equipment 

could not have been at issue in the modification case, the Board having 

ruled that such an issue could only be raised in an enforcement proceeding. 

1491 
Congress. They assert the original intent of section 75.1405 was to 

apply the automatic coupler requirement only to coal haulage equipment 

that operates solely on track and that this original intent must control. 

They argue this intent may be derived from the legislative history, i.e., 

the letter to Congressman Dent, and from the structure of section 314.-

Moreover, they assert that the Secretary's consistent policy from 1971 

to 1974 of excluding rubber-rail equipment from coverage under § 75.1405 

is the type of contemporaneous construction of the regulation by those 

charged with its enforcement to which deference should be accorded. 

They view this consistent administrative interpretation over a period of 

four years as compelling evidence of the original intent underlying the 

statutory and regulatory provisions. They also view the Secretary's 

proposal to amend § 75.1405-1 so as to include rubber-rail vehicles as 

evidence that such equipment was not originally covered. 

In short, the operators argue that because of the legislative 

history, the Secretary's contemporaneous construction of the standard, 

the four year enforcement policy.of not requiring automatic couplers on 

rubber-rail equipment and the proposal to amend § 75.1405-1, the 

judge correctly concluded that the Act and regulations do not require 

automatic couplers on rubber-rail equipment. The companies state that 

if the Secretary wishes to change a regulation he should follow the 

promulgation procedures set forth in the Act, rather than legislate 

through interpretation. lf 

Our resolution of this case begins with an examination of the words 

of the statute and standard. The judge and parties agree that section 

314(f) and § 75.1405 on their face apply to "all haulage equipment." 

They also agree that Congress could not have intended literal application 

of the standard to all haulage equipment because there are many types of 

equipment used to transport coal, men and supplies (e. g., shuttle cars, 

battery powered tractors, and battery powered personnel-carrier) which 

travel alone and upon which automatic couplers would serve no purpose. 

The judge and the parties also agree that in order to clarify Congressional intent and to narrow the overly inclusive language of the 

statutory standard the Secretary promulgated § 75.1405-1 limiting the 

automatic coupler requirement to "track haulage cars which are regularly 

coupled and uncoupled." 

The word "track" indicates that the regulated cars travel on rails 

as opposed to free moving vehicles. All parties agree the rubber-rail 

cars-travel on rail from the supply yard into the mine to the point on 

the track nearest the section where the supplies are to be used (Tr. 

150-152, Dec. 4). Thus, the rubber-rail vehicles qualify, at least in 

this facet of their operation, as "track" equipment. The term "haulage 

Zf The operators insist that they are not raising an estoppel argument. 

Rather, they are arguing that the original interpretation of the standard 

is the correct interpretation and must be followed. They state that the 

agency "is free to change the regulation despite reliance on the old 

regulation so long as [the agency] pu:i:sues the proper procedures." 

(Brief at 17.) 

1492 
cars" in mining parlance indicates cars which carry either ore, equipment, 

supplies or personnel. 8/ The rubber-rail vehicles are used for the 

transport of men, equipment and supplies. Thus, we conclude that, based 

on a plain reading of the standard and the nature of the use of the equipment at issue, the rubber-rail vehicles involved are a type of "trackhaulage car." JJ 

The Secretary's inconsistent enforcement of the standard against 

the operators involved is troubling, but it does not lead us to a 

different result. The prior practice in District 2 of not enforcing 

section 75.1405-1 against rubber-rail equipment was contrary to the 

plain language of the standard. Further~ although an agency's contemporaneous interpretation of a regulation can be given weight, the 

interpretation must be a consistent practice implemented by the agency 

as a whole. See 2 Davis, Administrative Law Treatise? § 7.14 at 66-

69 (2d ed. 1979). The record indicates confusion among agency personnel regarding enforcement of the standard and it cannot be determined 

what interpretation, if any, had been adopted as the official agency 

position on the standard. 

This leaves the question of whether the cited rubber-rail vehicles 

are "regularly coupled and uncoupled" within the meaning of the standard. 

The adverb "regularly" suggests a practice or implies uniformity or a 

method of proceeding. It excludes isolated or unusual occurrences. We 

believe that the record reflects a uniform method and practice of on-track 

coupling and uncoupling. The judge's finding that the rubber-rail cars 

are used only intermittently and are not regularly coupled and uncoupled 

is difficult to explain. None of the sources cited by the judge states or 

infers that the use of the equipment was only intermittent or that on-track 

coupling and uncoupling are not routine practices. 

~/ Haulage cars. Rail haulage cars for surface or mine shaft operations are used to carry ore and equipment to and from the digging site. 

They may be of the trailer type or self-propelled, and include dump 

cars, flat cars, personnel cars, etc. Dictionary of Mining, Mineral 

and Related Terms, U.S. Department of the Interior at 530. 

9/ There is a great deal of discussion by the parties as to whether 

Congress intended section 314(f) to apply to rubber-rail vehicles. The 

judge concluded that the Secretary "correctly divined Congressional 

intent" when he promulgated§ 75.1405-1 (Dec. 6). Our attempt to 

determine Congressional intent is inconclusive. We have found no 

indication that Congress in drafting section 314(f), or the Secretary 

in promulgating § 75.1405-1, considered rubber-rail equipment. See 

35 Fed. Reg. 17890 (Nov. 20, 1970). At most section 314(f) and the 

legislative history indicate that automatic couplers are required on 

mine cars which run on track and which carry loads. Thus, we perceive 

no definitive indication from the legislative history, or the context 

of section 314, as to whether automatic couplers are to be installed 

on such cars that run only part of t~e time on track. 

1493 
We therefore find that the rubber-rail cars are track haulage 

equipment that are regularly coupled and uncoupled on track and, 

therefore, that the standard applies. 

Finally, we note that the operators initially raised two separate 

challenges to the enforcement of 30 C.F.R. § 75.1405 against their 

rubber-rail equipment: (1) that the standard did not apply, and (2) 

that such enforcement would result in a diminution of safety. In our 

decision we have addressed only the first argument concerning the 

applicability of the standard. From our review of the previous decisions of the administrative law judge and the Board in this matter, it 

appears that the question of diminution of safety has never been finally 

resolved. We are not unaware of the operators' expressed concerns about 

the safe use of automatic couplers when rubber-rail equipment is operated 

off track. But as we have previously held, it is "important that questions 

of diminution of safety first be pursued and resolved in the context of the 

special procedure provided for in the Act-;-"'T.e. • a modification proceeding. u 

Penn Allegh Coal Co., 3 FMSHRC 1392, 1398 (June 198l)(emphasis added). This 

Commission was established as fully independent of the Secretary by the 1977 

Mine Act. As a result we do not have jurisdiction, as did the Board, to rule 

on petitions for modification based on diminution of safety. 30 U.S.C. 

§ 8ll(c)(Supp. IV 1980). 

The present status of the previously instituted modification proceeding is unclear. Whether the previous petition for modification is still 

pending or filing of a new petition would be required~ the operators should 

at this time, if they so choose, pursue their diminution of safety claims 

before the Secretary of Labor. 30 C.F.R. Part 44. 10/ 

Conclusion 

Accordingly, we reverse the judge's conclusion that 30 C.F.R. 

§ 75.1405 does not apply to the track aulage cars at ~ssue and 

reinstate the notices of violation. 0 • ~ 

-~ 

Rosemary • Collyer, Chairman 

~-/' ~-'-•k/v A. E. Lawson, Commissioner 

10/ The presertt case arose from an application for review filed by 

the operators, rather than a petition for assessment of penalties 

filed by the Secretary, and only the question of the applicability 

of the standard is being resolved herein. Therefore, we need not 

explore in this case the effect that·a previously instituted modification proceeding should have on a subsequently filed action seeking 

civil penalties for noncompliance with the standard sought to be 

modified. See Sewell Coal Co., 3 FMSHRC 1402, 1414-15 (June 1981). 

1494 
Jestrab, Commissioner dissenting: 

I most respectfully dissent. 

Regulations 30 C.F.R. 75.1405 and 1405-1 are ambiguous insofar as 

they purport to cover the on-track/off-track rubber tired vehicles at 

issue here. It appears from the record that on or about February 10, 

1975 the Secretary proposed an amendment to this regulation so as to 

deal with on-track/off-track rubber tired vehicles. (Exhibit P-12) 

The final disposition of this proceeding is not disclosed in the record. 

Further, statutory modification proceedings to cover the on-track/offtrack rubber tired vehicles of these applicants were commenced, but here 

again these proceedings apparently have not reached final disposition. 

(JD-2, footnote 2) Reference is made in the record to the practice of 

the Secretary in other districts, but there is no evidence in the record 

as to whether the vehicles are operated under individual modifications 

of the regulation or if, in fact, the regulation is enforced as it is 

presently written. It thus appears that the interpretation and enforcement policy of the Secretary may be inconsistent, (e.g. T-51-57) 

It is of parenthetical interest to note that there is testimony in 

the record that any attempt to adapt automatic couplers to rubber tired 

vehicles operating off-track could be dangerous to the safety of miners. 

(T-67-68, 202) Vertical movement of the automatic coupling on the 

uneven mine floor, together with the difficulty of lateral alignment in 

off-track operation, lends considerable force to this testimony, Here 

it is well to have in mind that this regulation is being applied to 

rubber tired vehicles which in fact operate off-track. To say that the 

question raised by the operator in this case should have been the subject 

of a modification proceeding is to beg the question presented to us. 

In my opinion, if the Secretary wishes a regulation that requires 

automatic coupling devices for on-track/off-track rubber tired vehicles, 

he should amend the regulation 75.1405 to expressly so provide. See 

Diamond Roofing v. Occupational Safety and Health Review Commission 

528 F.2d 645 (5th Cir. 1976) In the course of the rulemaking process 

set forth in§ 101 of the Mine Act (30 U.S.C. 811), 11/ the technology, 

feasibility and safety considerations so important tO-miners and the 

industry could be developed and a rational result reached. See King 

Knob.Coal Co., 3 FMSHRC at 1420, 1421 (1981); B&B Insulation v. Occupational 

Safety and Health Review Commission, 583 F.2d at 1371, 1372 (5th Cir. 

1978). 

I would affirm the order of the Admi~i~trative 

reasons and for the reasons set forth i~s op· io 

' 

Fr 

11/ Similar provisions existed in section 

1495 
Distribution 

Todd Peterson, Esq. 

Crowell & Moring 

1100 Connecticut Ave.:, N.W. 

Washington, D.C. 20036 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Michael Lasher 

Fed. Mine Safety & Health Rev. Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1496 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR AUG 2 1982 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMLUSTJ:lATION (MSHA) , 

Petitioner 

Vo 

N.B.C. ENERGY, INC., 

Respondent 

DECISION 

Civil Penalty Proceedings 

Docket No. KENT 81-133 

A. C. No. 15-08906-03039V 

Docket No. KENT 81-134 

A. C. No. 15-08906-03040 

Docket No. KENT 81-137 

A. C. No. 15-08906-03041 

No. 1 Mine 

Appearances: Carole M. Fernandez, Esq., Office of the Solicitor, 

U. S. Department of Labor, Nashville, Tennessee, for 

Petitioner; 

Wayne W. Clark, President, N.B.C. Energy, Inc., 

Prestonsburg, Kentucky, for Respondent. 

Before: Judge Lasher 

A hearing on the merits was held in Pikeville, Kentucky, on May 19, 

1982. After consideration of the evidence submitted by both parties and 

proposed findings and conclusions proffered during closing argument, a 

decision was entered on the record. This bench decision appears below as 

it appears in the official transcript aside from minor corrections. 

These proceedings have arisen upon the filing of proposals for assessment of civil penalty by the Secretary of 

Labor in July 1981. At the formal hearing held in Pikeville, 

Kentucky, on May 19, 1982, the Secretary was represented by 

counsel and the Respondent was represented by its owner and 

President, Mr. Wayne w. Clark. 

At the outset, Respondent indicated that it did not 

challenge the occurrence of the violations and that ,the issue 

paramount in its defense related to the statutory penalty 

assessment factor relating to the adverse effect payment of 

penalties would have on its ability to continue in business. 

1498 
The parties stipulated that the Federal Mine Safety and 

Health Review Commission has jurisdiction over the parties to 

and the subject matter of these proceedings; that the Respondent, after notification of the violations, proceeded in good 

faith to rapidly achieve compliance with the violated mandatory 

health and safety standards; that the Respondent in 1981 produced approximately 45,000 to 75,000 tons of coal; 1/ that, 

except for the single citation involved in Docket No. KENT 

81-133, i.e., Citation No. 954184 dated January 21, 1981, the 

remaining twelve violations occurred as a result of ordinary 

negligence on the part of Respondent and its agents; and 

finally, except for the subject citation in Docket No. KENT 

81-133, the degree of seriousness to be attributed to all 

violations is that demonstrated by the penalty points fixed 

by Petitioner during the administrative penalty assessment 

process for the three gravity subcriteria, i.e.~ (a) probability of occurrence, (b) severity of anticipated injury, and 

(c) number of persons exposed to risko 

In addition to the foregoing stipulations, Petitioner, 

MSHA, introduced as evidence on the remaining statutory penalty 

assessment criterion a computerized history of Respondent's 

previous violations for the 24-month period ending January 15 9 

1981, which latter date is the approximate date on which the 

first citation issued in these proceedings was completed by the 

Inspector (actually, the first vdolation in these proceedings 

was reflected in a citation issued on January 14, 1981). This 

history of previous violations reflected in Court Exhibit 1 

indicates that seven violations were issued for which the paid 

penalties amounted to $425.00. !:./ 

The primary issue in these proceedings is whether payment 

of reasonabale penalties would jeopardize the Respondent's 

ability to continue in business. 

The Respondent, through its President, Mr. Clark, established that NBC Energy, Inc., began operating its No. 1 Mine 

in July 1979. According to Mr. Clark, this mine was abandoned 

two days prior to the hearing on May 17, 1982. Mr. Clark 

1/ I find therefrom, and from other evidence in the record indicating 

that the Respondent had on its payroll over the last three.years an employee complement ranging from 12 to 23 miners at its No. 1 Mine, that 

Respondent is a small coal mine operator. 

2/ I infer therefrom that the seven violations were not particularly 

"ierious and that this is but a moderate, if not modest, history of infractions which preceded the first violation involved here. Violations 

which occurred after the subject violations are not properly considered 

as a part of the .Respondent's history. 

1499 
testified that when the violations in question were committed, 

NBC Energy, Inc., had three equal owners, Jack Bush, Stanley 

Neese, and himself. The mine, since January or February 1982, 

has been operated by a new corporation wholly owned by 

Mr .• Clark, Wayne Clark, Inc., which has the license to operate 

the No. 1 Mine which has not been producing coal since May 12, 

1982. 

Mr. Clark testified that approximately two years ago, 

Jack Bush and he bought out Stanley Neese, and that since that 

time he and Bush each had a 50% interest in the NBC Energy, 

Inc., establishment. At the beginning of 1982, Mr. Bush and 

Mr. Clark entered into an agreement wherein Mr. Clark received 

Mr. Bush's 50% interest in NBC Energy, Inc.~ and Mr. Bush received Mr. Clark 1 s 50% interest in another corporation, C and B 

Coal Company, Inc. No money was exchanged in this nswap." 

Mr. Clark's primary bases for urging substantial reduction 

of penalties are that: (1) at the present time a judgment is 

outstanding against NBC Energy, Inc., in the approximate sum 

of $24,500.00, of which only $5,000.00 has been satisified; (2) 

a second suit has been filed against NBC by Old Republic Insurance Company, seeking approximately $31,000.00 for non-payment 

of Workmen 1 s Compensation premiums; (3) total mine safety penalty 

assessments (presumably MSHA's administrative assessments) 

totaling $20,000.00 are presently being processed; (4) for the 

corporate fiscal year ending May 31, 1981, in its U. S. Corporation Income Tax Returns, NBC refl~cted a net operating loss, for 

which a deduction was taken, in the sum of $108,860.00. 

Mr. Clark testified that NBC had other debts of an unspecified 

amount. 

On the other hand, evidence indicates that the No. 1 Mine 

is presently producing approximately 4,000 tons of coal per 

month; that Mr. Clark, who is the sole owner of Wayne Clark, 

Inc., and, effectively, the operator of the No. 1 Mine as an 

individual, is taking out a salary of from $800.00 to $1,500.00 

per month from either NBC or C and B Coal Company, Inc. 

The only reliable and probative evidence of Mr. Clark's 

individual worth, assets, and ability to pay penalties, is reflected on Exhibits R-1, 2, and 3 (his U. S. Individual Income 

Tax Returns for the years 1979, 1980, and 1981, respectively), 

which indicate his adjusted gross income for those years was, 

in general terms, $33,000.00, $22,000.00, and $9,700.00, 

respectively. 

Much of Respondent's evidence was general, and which I 

find to be self-serving and clearly of a quality which is not 

sufficiently probative of the rule which this proponent seeks 

to have determined herein: that it is unable to pay reason1500 
able penalties,]_/ without jeopardizing its ability to stay 

in operation. 

A clear statement of all assets of Mr. Clark, as an individual, and of the corporations with which he is now or has 

been associated, is impossible to arrive at because of the 

approach to this proceeding taken by the Respondent. Establishing an economic defense, the burden of which rests with the 

operator because of his exclusive knowledge of the subject 

matter, is difficult. The documentary evidence which primarily 

consists of Court Exhibit 2 (seventeen pages of disclaimed 

balance sheets, and the aforesaid income tax return and its 

attachments) is not persuasive. Thus, the balance sheet was 

accompanied by a certified public accountant's cover letter 

which indicated that: 

11A compilation is limited to presenting in 

the fonu of financial statements information that 

is the representation of managemento We have not 

audited or reviewed the accompanying financial 

statements, and accordingly, do not express an 

opinion or any other form of assurance on them. 

Management has elected to omit substantially 

all of the disclosures required by generally 

accepted accounting principles, including the 

statement of retained earnings and the statement 

of changes in financial poqition. If the omitted 

disclosures were included in the financial statements, they might influence the users conclusions 

about the company's financial position, and results 

of operations. Accordingly, these financial statements are not designed for those who are not informed about such matters. Likewise, without 

audited financial statements, verified lists of 

assets, one is left unconvinced by the opportunities 

for asset concealment and manipulation which occurs 

through the use of the creation of multiple corporations." 

I conclude, after considering the quality of testimony and 

documentary evidence, that Respondent has provided no reliable 

basis for substantial reduction of otherwise reasonable penalties 

in these cases. 

The only other matter litigated relates to the citation in 

Docket No. KENT 81-133, which involved a violation of 30 CFR 

75.518, which provides: 

3/ MSHA's proposed penalty assessments for the thirteen violations involved in the three dockets amounted to approximately $2635.00. 

1501 
Automatic circuit-breaking devices or fuses 

of the correct type and capacity shall be installed 

so as to protect all electric equipment and circuits against short circuit and overloads. Threephase motors on all electric equipment shall be 

provided with overload protection that will deenergize all three phases in the event that any 

phase is overloaded. 

The description of the violation contained in the citation 

is that: 

The automatic short circuit breaker device in 

the switch box that supplied electrical power to the 

number two belt head conveyor was bridged across the 

fuse holders with 1110 copper wireo The operator at 

this mine does his own electrical worko" 

This violation became the subject of a special assessment by 

MSHA for which a penalty of $500.00 was sought. Respondent contended that the Inspector was not an electrical inspector and that 

he failed to recognize that between the switch box in question and 

the Number Two belt head conveyor there were two circuit breakers, 

one on a three-foot long rectifier and one on a belt motor starter, 

which would have been triggered and have cut off the power had 

there been an overload. 

The Inspector testified, and.I do find, that the switch box 

in question had one, possibly two, fuses which had either been 

bridged over or by-passed by a copper wire. The Inspector said 

he did not see, or "observe," as he put it, any other circuit 

breakers. A clear conflict in the testimony between the Inspector 

and Mr. Clark thus has occurred, the question being whether or not 

there were circuit breakers as alleged by Mr. Clark, or not. 

The Inspector's version is accepted for the reason that his 

testimony wss based on what he saw at the time and place in question whereas Mr. Clark couched his testimony in the vein that it 

was the way things ordinarily were in the mine; the way he understood it should be -- rather than what he saw. Mr. Clark was not 

in the area at the time the citation was issued nor was his 

recollection precise as to what occurred and what happened at 

the time. 

The co-owner of the mine, Mr. Bush, was present at the time. 

The Inspector indicated that Mr. Bush in effect agreed that this 

violation occurred. So, even though at the outset of the hearing 

the parties did stipulate that the violations all occurred as 

charged, including the violation charged in this citation, I have 

re-evaluated whether a violation did occur and I conclude that 

based upon the Inspector's testimony which I believe should be 

accepted, a violation did occur. 

1502 
With respect to the seriousness of the violation, the Inspector indicated that the danger posed was a mine fire, or shock 

hazard, and with respect to the possibility of a mine fire 

occurring, he indicated that there was coal around the belt head 

which could supply a fuel source for a fire. I therefore find 

that this was a serious violation, based on his testimony. However, I do not consider that there is any evidence of gross 

negligence in the occurrence of this violation based upon the 

Inspector's belief that the Mine Foreman at the time (Mr. Bush) 

was aware of the violation (Tr. 118, 119). The record indicates 

that any of the miners in the mine knew how to bridge over the 

fuses in the switch box, and there is no indication when the 

violation occurred, how long it might have been in existence, 

and whether or not the operator 1 s management personnel were 

aware of it. I am unable to infer that there was willful disregard of the safety standard and intentional violation here~ 

nor does the evidence establish gross negligenceo I therefore 

find that this violation occurred only as a result of ordinary 

negligence. I conclude that it should not have been the subject of a special assessment under all the circumstances. 

The amount of a penalty should relate to the degree of a 

mine operator's culpability in terms of willfulness or 

gence, the seriousness of a violation, the business size of the 

operator~ and the number of violations previously discovered at 

the mine involved. Mitigating factors include the operator's 

good faith in abating violative fOnditions and the fact that a 

substantially adverse effect on the operator's ability to continue in business would result by,assessment of penalties at 

some particular monetary level. Factors other than the six 

criteria expressly provided in the Act are~not precluded from 

consideration, either to increase or reduce the amount of 

penalty otherwise warranted. 

Considering all these factors in connection with Citation 

No. 954184, I find that the operator's size, the operator's good 

faith abatement of the violation, and the only ordinary degree 

of negligence involved, mitigate for a lessening of the penalty. 

I have previously rejected the operator's economic defense. 

Also, the penalty should not be increased on the basis of the 

history of previous violations which has been introduced in this 

proceeding. The only factor which weighs in favor of a large 

penalty is that of the seriousness of this violation, which had 

the potential for a hazard of catastrophic proportionq. Weighing all factors, I conclude that a penalty of $300.00 is reasonable and the same is assessed. 

Turning now to Docket No. KENT 81-134, which contains nine 

violations, it is again noted that all violations have been 

admitted and that all statutory penalty assessment factors, 

other than seriousness, have been stipulated to and treated 

previously. · 

1503 
Taking each citation one at a time, and based upon evidence 

in the record which has previously been analyzed, I find that 

Citation No. 9927446 is not a serious violation; that Citation 

No. 953110 is a serious violation; that Citation No. 953111 is a 

moderately serious violation; that Citation No. 953113 is a very 

serious violation; that Citation No. 953114 is a very serious 

violation; and that Citation Nos. 953115, 954182, and 954183 are 

moderately serious violations. Finally, I find that Citation No. 

953581 is not a serious violation. 

With respect to these nine violations, the parties have 

stipulated that they resulted from only ordinary negligence and 

I conclude that the payment of reasonable penalties as to these 

violations will not jeopardize the Respondent's ability to continue in business based upon the·rationale contained in Docket 

No. KENT 81-133. 

Based on the factors previously noted~ the following penalties 

are assessed: 

Citation No. 9927446 $ 50.00 

Citation No. 953110 $225.00 

Citation No. 953111 $125 .oo 

Citation No. 953113 $375.00 

Citation No. 953114 $275.00 

Citation No. 953115 $140.00 

Citation No. 954182 $125.00 

Citation No. 954183 $125.00 

Citation No. 953581 $ 75.00 

Turning now to Docket No. KENT 81-137, which involves three 

citations, based upon my analysis in the record and the evaluation 

of MSHA's penalty points which was authorized by stipulation between 

the parties, Citation No. 993112 is found to involve a violation 

which was moderately serious. Likewise the same finding is made as 

to Citations 954181 and 927486. Based on these gravity findings 

and my prior evaluation of the remaining five statutory criteria, 

Respondent is aasessed the following penalties: 

Citation No. 951112 

Citation No. 954181 

Citation No. 927486 

ORDER 

$200.00 

$140.00 

$ 90.00 

Respondent is ordered to pay the Secretary of Labor within 

30 days after receipt of this decision the penalties assessed 

hereir..-.above totalling $2,245.00 • 

. 1, .. ,, ~7 ,· ~ ~ 

:: //. ~-< l'"<;..~1-/ ~ . ~ ,AY"· 

Michael A. Lasher, Jr., Judge 

1504 
Distribution: 

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

of Labor, 801 Broadway, Rm. 280, Nashville, TN 37203 (Certified 

Mail) 

Wayne Clark, President; Joyce H. Burchett, Bookkeeper, N.B.C. Energy, 

Inc., P. o. Box 147, Prestonsburg, KY 41653 (Certified Mail) 

1505 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SOUTHERN OHIO COAL COMPANY, 

Contestant 

Contest of Order and Citation 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. LAKE 82-78-R 

Order/Citation No. 1120758; 4/14/82 

Meigs No. 2 Mine 

DECISION 

Statement of the Case 

By joint motion filed July 19, 1982, the parties seek my approval 

of a proposed "settltment" of this case, and contestant moves to withdraw 

its contest challenging the captioned section 107(a) imminent danger 

order. In support of the proposed "settlement", the parties assert 

that they have discussed the six statutory criteria found in section 110 

of the Act, and the motion contains arguments concerning such matters 

as negligence, gravity, good faith eompliance, size of business, and 

the contestant's history of prior violations. The motion also contains 

a full discussion concerning the cited conditions, including an assertion 

by MSHA that it now proposes to modify the order to a section 104(a) 

citation because of certain circumstances and actions taken by the operator 

as discussed in the motion. 

Discussion 

This case concerns a contest filed by Southern Ohio Coal Company 

on May 14, 1982, challenging the legality and propriety of a section 107(a) 

imminent danger order served on Southern Ohio on April 14, 1982. The case 

was docketed for hearing in Columbus, Ohio, July 22, 1982. However, the 

hearing was cancelled and continued after MSHA's counsel advised me 

that the parties proposed to settle the matter. The aforesaid settlement 

motion was then filed urging my approval of MSHA's proposal to modify 

the order from a section 107(a) imminent danger order to a section 104(a) 

citation. 

As far as I know no civil penalty case has been filed by MSHA 

seeking a civil penalty assessment for the citation in question. Under 

the circumstances, I have no jurisdiction to approve any prospective 

settlement concerning any civil penalty proposal which may be filed by 

1506 
MSHA in this matter, and the normal civil penalty matters set out 

in section llO(i) of the Act are not in issue in these proceedings. 

With regard to MSHA's proposed modification of the order in question, 

the justification given for this proposal appears to be reasonable and 

proper and I see no reason why it should not be done. However, I believe 

this is a matter best left to the discretion of MSHA as the enforcing 

arm of the Secretary. In this regard, I assume that MSHA will modify 

the order to reflect that it is a section 104(a) citation and that 

Southern Ohio will then pay any assessment levied for that citation. I 

also assume that Southern Ohio's motion to withdraw its contest is 

conditioned on the modification of the order and that once this is done, 

Southern Ohio has no further interest in challenging the violation, 

ORDER 

In view of the contestant 1 s motion to withdraw its 

contest IS GRANTED, and this case is DISMISSED, Although the 

disposition and modification of the order in question by MSHA appears 

to be proper and reasonable, I decline to specifically approve it as a 11 settlement 11 of any civil penalty dispute. However, should MSHA renege 

on its proposed modification of the order in question, Southern Ohio 

is free to file an motion with me for further relief, 

Distribution: 

Patrick M. Zohn, Esq., U.S. Department of Labor, Office of the Solicitor, 

881 Federal Office Bldg., 1240 E. 9th St., Cleveland, OH 44199 

(Certified Mail) 

David M. Cohen, Esq., American Electric Power Service Corp., Box 700, 

Lancaster, OH 43130 Mail) 

150'( 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 AlJG 3 1982 

SECRETARY OF LABOR, 

Petitioner 

v. 

SELLERSBURG STONE COMPANY, 

Respondent 

Civil Penalty Proceedings 

Docket No. LAKE 80-363-M 

AC No. 12-00109-050061 

Docket No. LAKE 80-364-M 

AC No. 12-00109-05007 

CORRECTION OF TYPING ERROR IN DECISION 

The decision entered on July 26, 1982, is corrected and amended, at 

page 2, the fourth line, by changing the word, iidrill, 11 to read 9 "check." 

td~~VVL/ WILLIAM FAUVER, JUDGE 

Distribution Certified Mail: 

Stephen P. Kramer, Esq., and Thomas A. Mascolino, Esq., US Department of 

Labor, Office of the Solicitor, 4015 Wilson Boulevard, Arlington, VA 22203 

Edwin S. Sedwick, Esq., 100 Heritage Bldg., Sellersburg, IN 47172 

1508 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil 

AUG 4 

Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. WEST 81-267-M 

A.O. No. 04-94295-0SOOlW 

V. Hiller Mine 

MILLER MINING CO., INC.; 

Respondent 

Appearances: 

Before: 

DECISION 

Debra L. Gonzalez and Marshall P. Salzman, Attorneys, 

U.S. Department of Labor, San Francisco, California, 

for the Petitioner; Michael Miller and Arnold Kopelson, 

, Los Angeles, California, for the Respondent. 

Judge Koutras 

Statement of the Case 

~ 

These proceedings concern a proposal for assessment of civil penalty 

filed by the petitioner against the respondent 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 for an alleged violation of an Order 

issued pursuant to Section 103(k) of the Act. 

Respondent filed a timely answer contesting the alleged violation, 

denying that it a "mine" subject to the Act, and requesting 

a hearing. A was convened in Sacramento, California on April 1, 

1982 and the appeared and participated therein. Posthearing 

briefs were filed by the parties and the arguments presented therein 

have been full considered by me in the course of this decision. 

Applicable Statutory Provisions 

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

§ 801 et~' and in particular sections 104(a) and 103(k). 

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

requires consideration of the following criteria before a civil penalty 

may be assessed for a proven violation: (1) the 's history of 

1509 
previous violations, (2) the appropriateness of such penalty to the 

size of the business of the operator, (3) whether the operator was 

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

business; (5) the gravity of the violation, and (6) the demonstrated 

good faith of the operator in attempting to achieve rapid compliance 

after notification of the violation. 

3. Commission Rules, 29 C.F.R. § 2700.1 et~ 

Issues 

The basic issue is whether a violation occurred, and if so, should 

the respondent be held accountable for that violation and assessed a 

civil penalty in accordance with the criteria set forth at section llO(i) 

of the Act. Additional issu~s raised by the parties are identified and 

discussed in the course of this decision, 

Stipulations 

The parties stipulated to the following (5-8; Exh. JE): 

1. Respondent Miller Mining Company, Inc. is and at all 

relevant times was the owner and operator of the 

Miller Mine. 

2. Respondent Miller Mining Company, Inc., and the Miller 

Mine, are, for the purpose of this proceeding, subject 

to the jurisdiction of th~ Mine Safety and Health Act 

of 1977, 30 U.S.C. section 801 ~ ~ 

3. Miller Mine is an underground gold mine. 

4. Copies of the subject citations, modifications and 

terminations of the violations in issue are authentic 

and may be admitted into evidence for the purpose of 

establishing their issuance. 

5. True and correct copies of the citations were served 

upon representatives of the operator. 

6. Imposition of a reasonable civil penalty or that 

proposed by MSHA will not affect the Respondent Miller 

Mining Company, Inc. ability to continue in business. 

7. During the two year period prior to September 5. 1980, 

Respondent Miller Mining Company, Inc. had no assessed 

violations. 

8. Respondent Miller Mining Company is a small or medium 

sized operator. 

1510 
Discussion 

The facts in this case show that on August 8, 1980, a fire broke 

out in the main mine tunnel approximately 520 feet from the portal. 

The fire resulted from a spark from a cutting torch igniting a bale of 

straw. MSHA inspectors were dispatched to the scene, and at approximately 

4:00 p.m. that same date, a section 103(k) Withdrawal Order, No. 379711, 

was issued ordering everyone out of the mine (Exh. P/R-1). The order 

was subsequently modified the next day, and as modified, it prohibited 

persons from entering the mine portal without authorization from MSHA's 

Western District Manager, and it required that any modifications or 

alterations of the mine fan ventilation system be monitored by the MSHA 

inspector on duty (Exh. P/R-2). The order was modified again on September 2 

and 3, 1980, and the modification of September 3 permitted persons 

to enter the portal to establish a permanent bulkhead near the fire 

(Exhs. P/R-5 and P/R-6), 

The initial withdrawal order of August 8, 1980, states as follows: 

A mine fire started in the main tunnel about 2:20 

p.m. The fire occurred. approximately 520 ft, from 

the portal, 

The modified order of August 9, 1980, states as follows: 

Original order should read -- Type of inspection 

030. Added to condition~or practice should be --

No person shall enter the mine portal without direct 

authorization from MSHA's Western District Manager. 

Any modification or alterations of the mine fan ventilation system shall be monitored by the MSHA 

inspector on duty. 

On September 2, 1980, after receiving authorization from MSHA and 

state mining officials, one four-man rescue team consisting of company 

employees was permitted to enter the mine. After advancing for a distance 

in excess of 100 feet, they turned back because it was too smoky and they 

could not see. That evening, a hole approximately 2 by 2 feet was cut 

into the 42-inch ventilation line about 10 feet from the surface fan 

in an attempt to exhause the smoke from the mine. Beach balls and an 

umbrella were pushed down the vent line and the fan was turned on; 

however, the ball would not travel down the vent and it determined 

that the line was plugged underground at station 4+58. A decision was 

made to discontinue efforts to unplug the vent line until the next 

morning, September 3, and at approximately 11:30 p.m., September 2, the 

portal was secured, except for the security guards, the assistant safety 

director, and the crew working in the shaft. 

On the morning of September 3, the vent line which had been cut 

to facilitate the attempts to exhause the smoke from the mine was repaired, 

and when the fan was turned on again, it began exhausting smoke from 

the mine. At approximately 2:00 p.m., after receiving permission from 

1511 
MSHA and state officials, a four-man rescue team entered the mine. 

One of these men was MSHA inspector Felix Huniz. Upon exiting the 

mine at approximately 2:30 p.m., Mr. Muniz indicated that he had 

found that a hole approximately 2 by 2 feet had been cut into the 

42-inch ventilation line at the 4+58 station. He surmized that it had 

been cut with a sharp tool, and he took pictures of the hole which had 

been cut into the line, as well as some foot-prints which he observed 

(Exh. P-2). Subsequently, work progressed to establish a temporary bulkhead, 

but was discontinued because of the lack of sufficient oxygen. Thereafter, on September 5, a meeting was held with MSHA and state inspectors 

to discuss additional work required, and that same day company officials, 

state officials, and MSHA inspectors entered the mine again to evaluate 

the bulkhead and to investigate a suspected unauthorized mine entry and 

an MSHA special investigator was with this group (Exh, R-2), Mr, Muniz 

issued his section 104(a) Citation No. 0601832 at 5:00 p.m., on September 5, 

1980 (Exh. P/R-8). He issued the citation because he believed that someone 

had entered the mine between the time it was secured on the evening of 

September 2, and the morning of September 3, and cut a hole in the 

ventilation line at the 4+58 station. Since Mr. Muniz believed this 

was an unauthorized entry contrary to the conditions imposed by the 

original section 103(k) withdrawal order, as subsequently modified, he 

based his citation on a violation of that order, 

The citation issued by Mr, Muniz on September 5, 1980, describes 

the following condition or practice: 

On the day September 3, 1980, at approximately 

1400 hours it was apparent that 103-K order # 379711 

• had been violated by one or more persons entering the 

mine and performing work w~ich endangered human life. 

Mr. Muniz's citation was subsequently modified on March 2, 1981, 

by another MSHA inspector, and that modification states as follows 

(Exh. P/R-12): 

This citation is modified in order to clarify the 

violation. The Miller Mining Company submitted a mine 

re-entry plan to the M.S.H.A. inspectors at the mine 

property on or about August 13, 1980. This plan stated 

that qualified mine rescue personnel consisting of two 

separate 5 man teams be established, trained and briefed 

on the mine and mine fire before entering the mine. 

This plan was answered by letter to Mr. Michael Miller 

on August 28, 1980, by Tom Lukins, Western District Manager. 

The district manager's letter clearly stated the condition to 

be followed before anyone could re-enter the mine. 

The company plan to enter the mine and the MSHA re-entry 

conditions letter were both violated in that during the 

early morning hours of September 3, 1980, the mine was 

entered by persons unkown after all personnel and guards 

1512 
had been removed by company directions. The cautionary 

procedures as stipulated were not taken, nor were backup crews present. The entry was in violation of good 

common sense, established fire fighting practices, and 

complete disregard for human life. 

Work in the tunnel resumed on September 8, 1980, and continued during 

the months or September and October 1980, and according to MSHA's report 

of investigation (Exh. R-2), the fire was either extinguished or isolated 

from the main tunnel, and on November 24, 1980, the section 103(k) order 

was terminated. The report notes that "no personal injuries were sustained 

during the entire incident". The citation issued by Mr, Muniz was subsequently terminated on January 7, 1981, it states as follows (Exh. P/R-11): 

On September 3, 1980, at approximately 1400 hrs, it 

was apparent that the 103-K order no, 379711 had been 

violated by one or more persons entering the mine and 

performing work which endangered human life, The 

citation was abated after management was made aware 

of the danger and public law 95-164, 

Testimony and evidence adduced by the petitioner 

MSHA Inspector Nicholas Esteban testified as to his background and 

experience, and confirmed that his duties included the inspection of the 

mine in question from June 1979 to approximately December 1981. He 

was at the mine when the fire star~ed, left for a short while, and then 

returned and found that the portal area had been sealed. He then issued 

a section 103(k) order, served a copy on general manager Benny Licari, and 

explained it to him. No one was trapped in the mine, and since the 

operator sealed it, the section 103(k) order was issued to insure MSHA 

control of the mine, and to insure the health and safety of anyone entering 

the mine, as well as to insure that anyone entering the mine did so with 

permissible and approved equipment. The fire presented a danger of 

Carbon Monxide poisoning and possible explosion (Tr. 18-26). 

On cross-examination, Mr. Esteban confirmed that he was at the mine 

on August 7, 1980, the day before the fire, but was not sure whether he 

actually went into the mine. On August 8, 1980, he did go underground 

as part of the continued inspection started the day before, but does not 

recall issuing any citations for violations of any standards. He confirmed 

that he issued the control order in question on August 8, 1980 (Exh. P/R-1), 

He also confirmed that he marked the block on the citation form "see reverse", 

and his intent was to call the operator's attention to t~e information 

on the reverse side of the citation form (Tr. 27-37), Mr. Estaban stated 

that he had orders from his district supervisor to go to the mine and 

close it down. If there were anyone underground, the mine would have 

been completely taken over by MSHA. He explained that when there is a 

fire in a mine, he is told to issue an order (Tr. 47). 

151a 
Mr. Esteban identified a copy of a modification of his order, issued 

by Inspector Gene Ainslie (Exh. P/R-2), but he indicated that he was not 

at the mine when Mr. Ainslie issued the modification and Mr. Ainslie 

probably received orders from the district manager to issue the modification 

(Tr. 50). Mr. Esteban confirmed that his original order did not include 

a requirement that the mine operator first seek the district manager's 

permission before entering the mine portal (Tr. 62). He also identified 

copies of three additional modifications to his order which he issued 

(Exhs. P/R-3, P/R-4, P/R-5). He also confirmed that he and Mr. Ainslie 

conducted an investigation of the fire and prepared a report (Exh. R-2). 

The respondent and its personnel were cooperative with MSHA during the 

investigation (Tr. 76). 

Mr. Esteban testified that he did not participate in the investigation 

conducted September 2, 1980, .to determine who may have entered the mine. 

An MSHA special investigator was called in, and Mr. Esteban stated that 

he did not know the identity of the individual who may have made the 

unauthorized entry into the mine . 77), 

MSHA Inspector Felix Muniz confirmed that he was with Esteban 

on August 8, 1980, when the section 103(k) order was issued. He also 

confirmed that he was at the mine on the evening of September 2, 1980. 

Respondent's mine personnel, Mike Miller, Benny Licari, and Dean Hansen 

were attempting to determine the cause of a ventilation tube up. 

The tube was located at the and it is hooked to the ventilation 

fan and goes down the portal decline. Work stopped approximately 11:30 pm., 

and Mr. Miller told everyone to go home and to return the next morning. 

Mr. Muniz then left the mine site ~ith Mr. Esteban and two other MSHA 

representatives. Before leaving, Mr. Miller informed him that he should 

post a security guard at the portal to insure that no one would go in. 

Mr. Hansen and Mr. Licari stayed at the mine, and Mr. Muniz indicated 

that to his knowledge no MSHA personnel returned to the mine during the 

period between 11:30 a.m. and 8:00 a.m., the next morning (Tr. 78-88). 

Mr. Muniz stated that he returned to the mine at 8:00 a.m., September 3, 

1980, and he went straight to the portal where he found Mr. Licari parked 

by some bales of hay at the mine entrance. Shortly thereafter, the 

ventilation fan was turned on, and it started sucking smoke from the 

portal. He found this unusal, and it was obvious to him that someone had 

unplugged the ventilation tube since smoke was coming out. Mr. Muniz 

then entered the mine at approximately 2:00 p.m. to evaluate the temporary 

or permanent seal and also to investigate the circumstances connected 

with the underground portion of the ventilation tube. He was accompanied 

underground by three individuals, all of whom were certified in mine 

rescue by MSHA, and established procedures for going und?rground at that 

time were followed (Tr. 88-92). 

Mr. Muniz confirmed that while underground, he was at the approximate 

area of the fire, and he observed footprints and an ''opening hole on 

the vent tube". He took pictures and identified them for the record 

1514 
(Exh. P-2). The hole in the vent tube was approximately 20 to 30 inches 

in diameter, and from his observations, it appeared that someone used 

a sharp tool to cut the hole in the tube (Tr. 94). In his opinion, had 

someone entered the mine without following MSHA's established procedures, 

the person could have been subjected to a potential explosion or to being 

overcome by gas. In addition, they could have encountered ground control 

problems, such a falling rock, and become entrapped in a gaseous atmosphere 

(Tr. 97). He had never observed the vent tube in question prior to 

his entry into the mine on September 3rd (Tr. 98). Had the hole in the 

vent tube been there the previous day, the fan would have been working. 

The vent was apparently blocked by some concrete which had been poured 

into the area from the surface (Tr. 99). 

On cross-examination, Mr. Muniz confirmed that while he was at the 

portal on September 2, it was· sealed with plywood and plastic and small 

amounts of smoke was coming out of the seal. Respondent's safety representatives were monitoring the gasses and smoke coming from the portal 

along with him (Tr. 101, 132). He confirmed that he did suffer a headache 

from the smoke coming out of the mine, that he had occasion to go within 

10 or 20 feet of the portal, but issued no orders requiring people to 

stay away from a certain distance of the portal (Tr. 100). With regard 

to the footprints which he observed, Mr. Muniz stated that they could not 

have been caused by a team which entered the mine on September 2, because 

that group only went in approximately 127 feet and returned~ The area 

where he observed the footprints was approximately 200 feet into the mine, 

Prior to the September 2d entry by a rescue team, MSHA had given no one 

permission to enter the mine, and ~o his knowledge no one entered subsequent to the August 8th closure (Tr. 104, 117, 118). 

Mr. Muniz confirmed that he issued the citation for an illegal entry 

on September 5, 1980, and he 

investigation was going on. 

to determine the identity of 

(Tr. 128). 

waited a few days because the special 

Mr. Muniz did not interview any mine personnel 

the person why may have entered the mine 

Allan White testified that he was employed by the respondent in 

September 1980 as a security guard, and that on September 3, 1980, he 

was on duty on the "graveyard shift", 12:00 midnight to 8:00 a.m. He 

arrived at the mine at approximately 11:45 p.m. and reported to work at 

the main gate. His specific area of responsibility and post was "the 

patrol truck which was stationed next to the plaza area in front 

of the portal" (Tr, 135). Two other security guards were also at the 

mine during his shift. When he went to his post at the plaza, company 

safety personnel were present, as well as the "swing" and "graveyard" 

miner work shifts who were coming and going (Tr. 135). At approximately 

12:30 a.m. he received a radio call from his supervisor Ron Schmidt who 

informed him that mine manager Licari was coming to his area to issue 

some orders to the miners working there and that he (White) was to insure 

that they were carried out. When Mr. Licari arrived, he instructed the 

graveyard shift foreman to send his men home for the rest of the evening and 

151fj 
the crew left. Mr. Licari instructed him to remain in the area and to 

insure that all the miners left, but gave him no reasons for these 

instructions (Tr. 129-137). 

Mr. White stated that after all the miners left the plaza area, 

the only people who remained were himself and graveyard saf etyman Alan 

Koepke. Shortly thereafter, Mr. Schmidt arrived at the plaza post and 

ordered Mr. Koepke to leave the area. Mr. Schmidt then directed him 

(White) to secure the plaza area and to move his guard post from the 

plaza area to the top of the hill by the mine access road, and he did 

so at approximately 12:45 to 1:00 a.m. Mr. White stated that from his 

new guard post he had a partial view of the lower plaza area but could 

not see the portal or actual entry to the mine (Tr. 141). While at his 

new post, Mr. White stated that Mr. Schmidt would drive by for a routine 

check of the area every hour or half hour, and that he would drive to 

the lower plaza area and remain there for five minutes or so and then 

would leave. Mr. Schmidt directed him not to let anyone else past his 

guard post on the hill. Sometime between 3:30 and 4:00 a.m., Mr. Schmidt 

went to the lower plaza area and stayed there for 15 to 20 minutes. No 

one else crossed his post, but Mr. Koepke attempted to, and explained 

that he needed to obtain some air sample test tubes from the supply 

trailer in the plaza area. Mr. White advised him that he was under orders 

not to let anyone pass, and Mr. Keopke left to find Mr. Schmidt at the 

main gate to obtain his permission to pick up his air samplers (Tr. 144) . 

.Mr. White believed it unusual for Mr. Schmidt to be at the mine 

during the graveyard shift. Mr. wqite also stated that he observed 

surface foreman Dean Reed there also during the shift at approximately 

4:00 a.m., at the main gate, and that he was looking for Mr. Schmidt. 

Mr. Reed did not enter the mine area, and Mr. Schmidt was not on the 

property at that time. He did not know what Mr. Reed was doing there, 

and he found his presence unusual since Mr. Reed was seldom seen in the 

mine hour after hours (Tr. 145). 

On cross-examination, Mr. White confirmed that when he left work 

at approximately 8:00 a.m., September 3, 1980, he had some discussions 

with the security personnel who were relieving him, and he recalled 

mentioning the fact that his post had been moved from the plaza area 

to the top of the hill, that Hr. Schmidt had been there most of the night, 

and that the incoming security shift would have to await further instructions 

(Tr. 148). He testified that the mine plaza area could be entered from 

areas other than the access road, namely through a stockpile area which 

was lighted, However, he could not observe anyone coming that way from his 

vantage post on the hill (Tr. 152). Mr. White confirmed. that he did 

not know who may have entered the mine, but "rumor and scuttlebutt" 

indicated four possibilities, namely, Mr. Reed, Mr. Licari, surface 

superintendent Billy Canapa, "and possibly even Ron Schmidt" (Tr. 160). 

The basis for these rumors was the fact that "there had been things that 

were appropriated for going into the tunnel on a safe means and they 

had all of a sudden disappeared" and the fact that Mr. Reed was there 

at night when he was never known to show up at those hours (Tr. 161). 

1516 
Mr. White confirmed that he was no longer employed by the respondent, 

and he left its employ on October 11, 1980, after a dispute over a suspension 

he received for disciplinary reasons and two of his company paychecks 

which "bounced" (Tr. 161). He also confirmed that while he was on duty 

during the aforementioned night in question, he personally observed no 

one enter the mine portal (Tr. 162). 

Dean Hansen, testified that in September 1980, he was employed by 

the respondent as the underground superintendent. He confirmed that he 

was part of the approved group who entered the mine on September 2d at 

approximately 11:00 a.m., for the purpose of checking the fire to determine 

how to contain it so that mining could be resumed. The group had MSHA 1 s 

approval, they were all equipped with Gregor mine rescue units, and a 

back-up team certified by MSHA in mine rescue was standing by (Tr. 165). 

He described the conditions underground on that day, and the evening was 

devoted to attempts to clear up the fan ventilation tubing which had 

been blocked. He returned to the mine the next morning, September 3d, 

at approximately 8:00 a.m. He met Mr. Licari, and Mr. Licari asked him 

"to go for a ride where we could talk without being interrupted" (Tr. 170). 

Mr. Hansen related the conversation which took place, as follows (Tr. 171-174): 

Q. What did you talk about? 

A. Dreams and the force. 

Q. Could you explain that? Could you explain what the 

conversation was? 

A. Yeah, I can pretty well repeat it. It sounds pretty 

silly. He said -- Benny told me that he'd had a dream. 

Q. Benny Licari? 

A. Yeah. That the Force was with him. That a rock fell 

out of the back of the tunnel and put a hole in the fan 

line. And I asked him if he was all right. 

Q. What did you mean when you asked him if he was all 

right? 

A. Well, he talked incoherently. I never heard of such 

a positive dream projection, and he wanted me to go turn 

the fan on before I done anything else. 

Q. Did he ask you to turn the fan line on? 

A. Yeah, and the Force was with him. So I said, I'll turn 

the fan line on. I was going to turn it on to humor him. 

And lo and behold, the fan run just fine. 

Q. What else do you remember from the conversation that 

you had with Mr. Licari that morning? Was there any other 

explanation or any other --

1517 
A. No. Just that he had that dream, that there was 

a hole in the fan line, that a rock fell out of the roof 

at the tunnel and put a hole in the fan line and he just 

knew it happened. 

Q. Did you ask him how he knew it happened? 

A. Yeah. 

Q. What was the response? 

A. He said he just knew it, that the force was with him 

and rock fell out of the back of the tunnel and put a hole 

in the fan line. And he asked me to convince the other miners 

that that's how a hole got put in the fan line. 

Q. And did you eventually go turn on the fan? 

A. Yes, 

Q. And did it work? 

A. Yes. 

Q, What was -- can you describe how Mr. Licari was 

this conversation with you? Was he excited? 

A. Yes, he had to be p~etty excited. And real enthused. 

I mean like there was no doubt. 

Q. Do you know where Mr. -- well, whether Mr. Licari lived 

on the mine property? 

A. Yes, I do, I did. 

Q. Could you tell us where he lived on the property? 

A. He lived, when you approach the line he had a patrol in 

the guard shack, it's right in here -- let me look at this 

a little closer. (Witness examines document.) This is 

the guard shack 

* * * 

Q. Did you -- did you find your conversation·with Mr. Licari 

that morning unusual? 

A. Yeah, found it real strange. I wasn't too sure -- I 

really thought mayb e he had a load on, I thought maybe he'd 

been drinking a little bit through the night. And later when 

I turned the fan on and it run I got quite angry with Mr. Licari 

out in the parking lot. And I got angry because I told him 

that I felt using the powder would have been a hell of a lot 

better way it was done, the hole got put in the fan line. 

1518 
Q. How -- after you turned the fan on and it worked --

A. Mm-hmm. 

Q. What conclusion, if any, did you draw from that? 

A. Well, I knew the fan line was open. That somebody 

had to have went in there and I accused Benny of doing so. 

Q. That morning you accused him of doing so? 

A. Yes. I got very hostile about it and the safety 

director, Sandy was there. And I told him, I said, you're 

going to have us all in court over this thing. And that's 

were [sic] we're sitting today. 

Mr. Hansen confirmed that he was part of the rescue team that went 

underground with Inspector Muniz on September 3, 1980, after the vent tube 

was unclogged. He observed two sets of footprints, part of a broken axe 

and a piece of fan line in the area where the vent tube had been cut, and 

he assumed the axe was used to cut the tubing, but did not believe it 

could have been made by falling rock (Tr. 176). He also confirmed that 

Mr. Licari and Mr. Canapa were scuba divers, and he observed scuba tanks 

and gear stored at Mr. Licari's house. He also stated that Mr. Licari 

had previously asked MSHA and the state inspectors whether scuba gear 

could be used to enter the mine because the Gregor rescue units were 

not at the site, but the state officials indicated that it could not be 

used (Tr. 178). 

As for the identity of the person or persons who may have entered 

the mine, Mr. Hansen stated that Mr. Koepke told him the next day, 

September 4, 1980, that it was Mr. Licari and Mr. Canapa. Mr. Hansen 

stated further that Mr. Koepke told him that he saw Mr. Licari, Mr. Canapa, 

Mr. Reed, and quarry superintendent Ron Frasee at the portal area on the 

morning in question, but that he did not actually see anyone enter the 

mine portal or punch a hole in the portal seal (Tr. 180-181). 

On cross-examination, Mr. Hansen confirmed that he personally does 

not like Mr. Licari, and he related that Mr. Licari had made some 

statements regarding the operation of the mine to the local press, and 

that Mr. Hansen and the respondent are involved in a court suit concerning 

"defamation of character". Mr. Hansen also confirmed that he is a party 

to another court suite concerning moving costs connected with his employment 

with the respondent (Tr. 183). He testified further as t9 the conditions 

of the underground mine the day he entered it with the rescue team, 

indicated that it was intensely hot on September 2d, but that it had 

cooled down after the smoke was vented the next day. 

Mr. Hansen stated that he mentioned the axe which he observed underground to MSHA investigator Juan Wilmouth some ten days later when 

Mr. Wilmouth came to his house to speak with him. Mr. Hansen also confirmed 

1519 
that he is a party to another court suit concerning moving costs connected 

with his employment with the respondent (Tr. 183). He testified further 

as to the conditions of the underground mine the day he entered it with 

the rescue team, indicated that it was intensely hot on September 2d, 

but that it had cooled down after the smoke was vented the next day. 

Mr. Hansen stated that he mentioned the axe which he observed 

underground to MSHA investigator Juan Wilmouth some ten days later when 

Mr. Wilmouth came to his house to speak with him. Mr. Hansen also 

confirmed that he resigned his job with the respondent on September 8, 

1980, and that he gave his."quit" to Mr. Licari. He also confirmed 

that after he quit, he was involved in an automobile accident on mine 

property and was charged with felony drunk driving (Tr. 190). Mr. Hansen 

stated that to his knowledge none of the certified rescue team members~ 

including himself, entered the mine bewteen the hours of 12:00 midnight 

and 8:00 a.m., September 3, 1980. He also indicated that Mr. Licari, 

Mr. Canapa, and Mr. Schmidt are not certified in mine rescue by MSHA 

(Tr. 193). To his knowledge, none of these individuals entered the mine 

at the time in question (Tr. 194). He also conceded that the maximum age 

for one to serve on a rescue team is fifty, and that at the time he served 

on the team he was fifty-two (Tr. 194). However, he indicated that 

MSHA authorized his entry and excepted him from the age requirement (Tr, 195). 

Mr. Hansen also stated that when Mr. Licari told him about the "force 11 , 

he felt that Mr. Licari knew that a hole had been cut in the fan line (Tr. 200), 

Testimony and evidence adduced by the respondent 

Arnold Kopelson, testified that he is an attorney, that his firm 

represents the respondent, and he confirmed that he is a co-partner with 

Mr. Miller in the ownership of the mine in question. He testified that 

he and Mr. Miller were at the mine site on September 2, 1980, and they 

went there to ascertain a manner in which to gain entrance to the portal 

for the purpose of putting out the fire. He confirmed that he participated 

in the conferences with MSHA representatives that day and also confirmed 

the fact that a mine entry was made that day by a rescue team. He was 

standing 30 or 40 feet from the portal, but was moved back to a distance 

of 250 to 300 feet on orders by company safety officer Sandy Rettagliata. 

Sometime during that evening he started to feel nauseous and dizzy, and 

experienced severe headaches and a burning in his nose and throat, and 

decided that he had to leave the area. He spent the next day in bed. 

He expressed a concern for the safety of the people in the area, and 

expressed his view that 250 to 300 feet from the portal would be a safe 

distance for people to be. He asked Mr. Miller to convey these views 

to Mr. Licari so that he could keep people away from the.portal (Tr. 225-228). 

Mr. Kopelson stated that he did not give anyone permission to enter 

the mine portal, except as authorized by MSHA. Mine management specifically 

told Mr. Licari to stay away from the mine portal because of the smoke, 

and this included security personnel. He did this out of concern for the 

1520 
safety of his people. He also stated that the mine employed approximately 

105 people and was the second largest employer in Calaveras County. The 

community was concerned that the mine would go out of business, and in 

view of the potential economic disaster on the community. Mr. Kopelson 

believed that "anyone could have gone down that hole" (Tr. 229). 

On cross-examination, Mr. Kopelson stated that prior to September 2, 

he and Mr. Miller had made many trips to the mine, but except for the day 

the fire started, he could not recall being as close to the portal as 

he was on September 2 (Tr. 233). 

Jean Baudizzan, testified that he is employed by the respondent as a 

security guard, and that on September 3, 1980, he was working the graveyard 

shift from 12:00 midnight to ~:00 a.m. He was assigned to shack guard post 

Number 2. During that evening he had occasion to see Mr. Koepke while 

making his security rounds. He first saw him at his guard post at 12:00 

midnight when he came to speak with the miners, and later saw him in 

his pick up truck some 60 feet from his post. Mr. Koepke came and went 

at various times, and was also asleep in his vehicle for about two hours 

during the time in question (Tr. 237). 

Mr. Baudizzan confirmed that from his guard post he could not see 

the portal entrance to the mine. He also confirmed that he was interviewed 

by MSHA personnel concerning the alleged entry to the mine on September 3, 

and that his supervisor discussed the matter with him and advised him 

to tell the truth to the investigator (Tr. 239). Mr. Baudizzan stated 

that he heard rumors that "practica.lly every employee there and past 

employees had gone into the mine at· one time or another", but that he 

heard no actual names mentioned (Tr •. 240). 

On cross-examination, Mr. Baudizzan confirmed that the "rumor" 

he heard about concerned people allegedly entering the mine "after the 

mine was supposed to have been entered", after September 3d (Tr. 242). 

Michael Miller, confirmed that he was at the mine on September 2, 1980, 

and that he was with Mr. Kopelson during most of the day and evening. He 

observed a great deal of smoke coming out of the portal seal, and he too 

was ill that evening and the next day. He testified that no one, including 

himself, ever gave anyone working for him permission to enter the mine. 

Prior to the instant citation, the mine had a perfect safety record since 

ground was broken on March 1, 1979. Mr. Miller stated that he has no knowledge 

as to who may have entered the mine, and has seen no credible evidence 

as to the identity of the person who allegedly entered the mine. He 

confirmed the fact that the mine operation had a significant impact on 

the economy of the county, and that his payroll was approximately 

$200,000 a month. He also confirmed that he had received numerous phone 

calls from people telling him that "they would be only too happy to 

go into that mine and just knock the damn fire out", but that in each 

instance, these offers were rejected. To the best of his knowledge II ' we followed the rules and regulations" (Tr. 245). 

1521 
On cross-examination, Mr. Miller testified that he visited the mine 

approximately 10 times during the period August 8 through September 3, 1980. 

He also confirmed that he made no offers to have the people who volunteered 

to enter the mine become certified in mine rescue procedures (Tr. 246). 

In response to further bench questions concerning the issuance of 

the order and the modifications, Mr. Miller stated as follows (Tr. 247-249): 

THE WITNESS: That is correct. I mean, I will 

testify to an opinion. I found MSHA to be inaccurate 

in the conclusions they reached, I found them to be 

obstructionist, I found them to be extremely uncooperative. And I'm not talking about Mr. Esteban, who is 

our regular inspec~or. I'm talking about the entire 

team of people who came down. I consider the behavior 

of MSHA on this case disgraceful. 

JUDGE KOUTRAS: In what regard now? 

THE WITNESS: We were getting orders all the time 

and modification of orders, and we were being -- one 

time, Your Honor, we had made a request that we would try 

and get members of the San Francisco Fire Department, 

who are trained fire fighters, to come down and help us 

to end this fire, which we believed was a smouldering 

fire, and that offer was refused. Every time we turned 

to try and make what we qonsidered to be a carefully 

considered suggestion as an appropriate method for dealing 

with this fire, some reasoo was found as to why we 

could not do it. I also find the orders inconsistent. 

A lot of the conclusions reached were based upon hearsay, 

circumstance, and very inconsistent with themselves. 

I also must say, Your Honor, that under the 

circumstances, with the pressure that everybody understands 

that I was under, the Company was under, I took a look at 

the letter of the 28th of August and I did see what I 

thought to be a statement that you may enter the mine as 

long as four conditions are complied with. We recommend 

that the portal be sealed, we recommend -- twice, they 

stated -- that the portal be sealed. But we forbid 

anybody from entering this mine unless the following 

four conditions are met. Then there is a circumstantial 

case that someone did enter the mine. I don't.think that 

anybody in his right mind would question the fact that 

somebody must have gone into the mine. 

But the issue is, it was never linked to this 

Company, which had a perfect safety record up until that 

date, cooperated with the investigation, has never seen 

one shred of credible evidence to establish who went in, 

the circumstances under which they went in, and whether 

it violated the letter of August 28. You put all those facts 

together and I don't understand why I'm here today. 

1522 
Mr. Miller confirmed that he did not contest the withdrawal order, 

and that he tried "to work with the people in complying with the order" 

(Tr. 251). 

Benjamin J. Licari, testified that he is a graduate geologist 

and that on September 3, 1980, he was serving as mine project manager. 

The only persons senior to him were the mine owners, and Mr. Hansen was 

the underground superintendent working under his supervision. Mr. Hansen 

was responsible for the direct construction of the shaft and tunnel, and 

Mr. Licari conceded that during the period of September 2 or 3, 1980, 

he and Mr. Hansen were not getting along. He confirmed that he too 

received offers from members of the community to help put out the fire, 

that he considered these offers to be serious, but that he never engaged 

any of these people in the fire fighting activity (Tr, 254-257). 

Mr. Licari stated that mine management at all times did their best 

to insure the safety of their personnel and to comply with all of the 

agency regulations in attempting to put out the fire, and that at no 

time did Mr. Miller or Mr. Kopelson ever give him authority, permission, 

or directions to violate any order, rule, or regulation of any state or 

federal safety agency (Tr. 257). 

Mr. Licari confirmed that he had a discussion with Mr. Hansen at 

the mine on the morning of September 3, 1980, and that during that 

conversation he expressed his displeasure over any attempts to use dynamite 

in the tunnel because of the fact that MSHA and OSHA had advised him 

that the gasses in the tunnel were approaching the lower explosive limits. 

He explained to Mr. Hansen that th~ use of beach balls and umbrellas should 

be discontinued because he (Licari) had drafted a schedule for reopening 

the mine. With regard to Mr. Hansen~s testimony regarding the "force", 

Mr. Licari denied that he had mentioned any "dreams" to Mr. Hansen, 

and explained that he generally used the phrase "may the force be with 

you" in greeting or saying goodbye to people. He denied that he entered 

the mine, and stated that he had no knowledge as to who may have entered 

the mine contrary to MSHA instructions (Tr. 259). 

On cross-examination, Mr. Licari confirmed that he no longer was 

employed with the respondent company, but is employed with Demex International, who in turn is doing work for the respondent. He also confirmed 

that at the time of the incident in question, he was not trained in 

mine rescue, but is now. He also confirmed that he is a certified advanced 

scuba diver and that he had scuba equipment stored on the mine site at 

the time of the entry in question (Tr. 261). He stated that at the time 

of the alleged illegal entry, he did order security personnel out of 

the mine portal area (Tr. 261). 

Mr. Licari stated that when he discussed his mine reentry plan with 

Mr. Hansen, he had prepared it sometime between the hours of 12:00 midnight 

and 8:00 a.m. (Tr. 265). He stated that the original portal seal was 

airtight and composed of sand and other materials, but that the seal 

was removed to facilitate the entry of the authorized mine rescue team, 

and to his knowledge this was the first time anyone had entered the mine 

1523 
since the fire started (Tr. 267). He stated that in view of the fact 

that safety director Rettagliata was hospitalized on September 3, for 

carbon monoxide inhalation, and the fact that smoke was coming from the 

sael into the plaza area, he believed it was best to post security 

people at a safe distance to keep people away from the portal (Tr. 268). 

Mr. Licari stated that he gave Inspector Esteban a copy of his mine 

reentry plan on the morning of September 3 (Tr. 273). 

Petitioner's arguments 

The facts presented in this case are detailed in the post-hearing 11 proposed findings of fact" submitted by the petitioner in support 

of its case, and they are as follows. On August 8, 1980, a fire broke 

out in the underground portion of the mine and it was apparently started 

when a spark from a torch ig~ited bales of hay stored underground. 

Shortly after the fire started, an MSHA inspector appeared on the scene 

and issued a withdrawal order pursuant to section 103(k) of the Act, 

withdrawing mine personnel from the mine and prohibiting anyone from 

reentering until such time as MSHA determined that any hazards connected 

with the fire had been eliminated. The original order was modified several 

times by MSHA inspectors, and the gist of these modifications prohibited 

anyone from reentering the mine without direct authorization from 

MSHA's Western District Manager. 

In response to the modified order, respondent issued a plan for 

reentering the mine, and MSHA's district manager responded to that plan 

and advised the respondent that MSHA would not permit mine reentry unless 

four conditions were met. The conqitions were (1) all persons were to 

use approved 2-hour self-contained oxygen breathing devices; (2) all 

persons entering the mine must be currently certified by MSHA in mine 

rescue procedures; (3) the persons entering the mine must consist of a 

minimum of four properly equipped persons and 0 a back-up team of four 

additional persons to be maintained in immediate readiness to enter the 

mine if necessary; and (4) industry recognized mine rescue procedures 

and techniques must be followed by all persons entering the mine. Respondent 

agreed to comply with these conditions. 

On September 2, 1980, in an attempt to facilitate mine reentry, 

respondent made an effort to remove smoke from the mine by use of a 

ventilation fan. During this process, the fan somehow became blocked, 

and attempts to unblock it by various methods were unsuccessful. All 

surface mining activities ceased, attempts to unblock the fan were discontinued, and all mine personnel were instructed to leave the mine 

site. At approximately 12:30 a.m., September 3, 1980, all mine personnel 

had left the mine, and the mine security staff was instr~cted to secure 

the mine protal area and to insure that everyone left the area. Once 

this was done, certain mine security personnel were instructed to relocate 

their security post away from the mine portal area to an area near the 

entrance to the mine property, and they were further instructed not to 

allow anyone past the guard post other than the chief of security. 

1524 
On the morning of September 3, 1980, shortly after 8:00 a.m., 

the ventilation fan was turned on and smoke began to be removed from 

the mine. At approximately 2:00 p.m. that same day, an approved rescue 

team consisting of an MSHA inspector and mine personnel entered the mine 

portal and the inspector discovered that someone had cut a hole in the 

underground ventilation tubing, thereby facilitating the venting of the 

smoke from the mine. The inspector believed that this was done sometime 

within the hours of midnight and 8:00 a.m., that same day, and since 

MSHA had no knowledge of this, and since it was obvious to the inspector 

that an unauthorized entry had been made contrary to the terms of the 

orders which had previously been issued, he issued the citation which is 

the subject of these proceedings. 

Petitioner concludes tha~ the respondent failed to adequately safeguard against persons reentering the mine and thus violated the 103(k) 

order issued on August 8, 1980, and as modified on tember 29 1980, 

Since the respondent has not challenged the validity of the order in 

question, petitioner asserts that the only issue presented is whether 

the respondent either by actions or inaction, violated section 103(k) 

of the Act. 

In support of its case, petitioner argues that there is no question 

that one or more persons entered the mine between the hours of 12:45 

a.m. and 8:00 a.m. on September 3, 1980, and cut a hole in the fan line, 

and that respondent's president Michael Miller conceded that this is the 

case. Petitioner asserts that there is an abundance of facts from which 

the logical inference can be made t]:iat the individuals who entered the 

mine on September 3, 1980 did not comply with the four conditions set 

forth by MSHA's letter dated August 28, 1980. First of all, if the persons 

who entered the mine were intending to meet MSHA's requirements, there 

would be no logical reason to commit the entry in the twilight hours. 

More specifically, it would have been necessary for eight persons 

(4-person rescue team and 4-person back-up team) certified in the mine 

rescue to have participated in the entry in order to meet the secondand third-enumerated MSHA conditions. However, the individuals certified 

in mine rescue by MSHA, namely respondent 1 s Underground Superintendent 

Dean Hansen, Mark Gentry, Robert Holbrook, Charlie Smythe and MSHA Mine 

Inspector Felix Muniz, were not present at the mine on September 3, 1980 

between the hours of 12:45 a.m. and 8:00 a.m. In addition, the individuals 

who were present at the mine on that day and at that time, namely respondent's 

Project Manager Benny Licari, Security Director Ron Schmidt and Surface 

Foreman Dean Reed, were not at that time certified in mine rescue by 

MSHA. If the persons who entered the mine were interlopers, it is highly 

unlikely that they were MSHA-certified in mine rescue, 

Petitioner maintains that it is improbable that the persons who 

entered the mine wore MSHA-approved self-contained oxygen breathing 

apparatus because the respondent did not have any MSHA-approved selfcontained breathing apparatus readily available at the mine and it is 

1525 
inconceivable that interlopers intending to enter the mine without the 

knowledge of the respondent would concern themselves with procuring selfcontained breathing apparatus approved by MSHA. 

Petitioner argues that the section 103(k) withdrawal order issued by 

M*!A's :inspector placed a duty on the respondent to exercise a high degree 

of care to insure that no persons entered the mine. Respondent was ordered 

"to cause immediately all persons ...• to be withdrawn from, and to be 

prohibited from, entering" the mine, and the August 9, 1980 modification 

of the original withdrawal order prohibited "any person from entering 

the mine portal without direct authorization from MSHA's Western District 

Manager." The district manager's letter of August 28, 1980, which was 

incorporated by reference into the September 2, 1980, modification of the 

original withdrawal order, stated that MSHA would "not allow persons to reenter the minen unless the enumerated conditions were met. Thus, petitioner 

maintains that the withdrawal· order and the subsequent modifications did 

not limit their scope to "miners" or "operator 1 s employees 11 • Instead, 

the word "personsn was used in the withdrawal order and its subsequent 

modifications, and respondent 1 s duty of care extended not only to its 

miners and its employees, but extended to all individuals. 

Petitioner states that there are several factors which indicate 

that the mine entry on September 3, 1980, was accomplished with the 

knowledge and involvement of respondent. In support of this conclusion, 

petitioner points out that top-level mine management, who were not 

ordinarily at the mine during the graveyard shift, were at the mine on 

September 3, 1980, at the time the entry occurred. On the morning following 

the entry, respondent's Project Manager, the highest level on-site manager, 

made " statements which indicated that he at that time already had knowledge 

of the hole in the fan line and knew the fan would function properly. 

Furthermore, petitioner points out that it was respondent who had the 

most to gain from the entry to the mine because it would have been 

impossible to put out the fire without making a hole in the fan line. 

Petitioner asserts that participation by the respondent in the entry 

of the mine would constitute gross negligence because it would be a 

reckless disregard of an order issued by MSHA for the purpose of insuring 

the health and safety of all persons in the area. In the alternative, 

petitioner argues that the respondent certainly failed to exercise 

reasonable care to prevent the entry of persons into the mine. In support 

of these conclusions, petitioner points out that immediately after the 

mine fire began, the portal area was sealed off and a permanent security 

post was established at the portal area. Additionally, respondent had 

received numerous offers, which respondent considered sincere, from people 

in the local area volunteering their assistance in extinguishing the mine 

fire. Thus, petitioner concludes that it is obvious that respondent 

recognized the danger of an unauthorized entry to the mine if the portal 

area were left unguarded and realized the importance of having constant 

security in the area. Despite this knowledge, respondent nevertheless 

removed its security guard from the portal area on September 3, 1980 

to a post where the guard could not see the portal. Petitioner maintains 

that the removal of the security guard to a location where he had no view 

of the portal at the very least constitited ordinary negligence. 

1526 
Respondent's arguments 

In addition to the arguments advanced during the hearing in this 

case, respondent points out in its post-hearing brief that prior to the 

fire which occurred at the mine on August 8, 1980, respondent had never 

been issued any order or citation by MSHA. Respondent also points out 

that it voluntarily evacuated the mine, reported the fire to MSHA, and 

that at the time the inspector issued the withdrawal order on August 8, 

1980, no one was in the mine. 

Respondent's arguments include a recitation of the facts surrounding 

the issuance of the order and the subsequent modifications, including 

respondent's argeement to comply with MSHA's four conditions before 

reentering the mine. Respondent asserts that investigations conducted 

by MSHA as well as the respondent failed to determine the identity of 

the person or persons who may have entered the mine, the training 

of any such person, the equipment used by such persons, or any circumstances 

surrounding the alleged Further, respondent maintains that persons 

other than mine officers or employees had strong motives to aid the 

respondent by an entry into the mine. However, respondent concludes 

that no evidence was adduced to prove that it enticed, solicited, encouraged, 

allowed, permitted, or suffered any person or persons to enter the mine 

during the time in question. 

Respondent maintains that it took reasonable and responsible precautions 

to prevent any unauthorized entry in violation of the withdrawal order, 

and that it did not violate that order, as modified. 

Findings and Conclusions 

Fact of Violation 

The respondent in this case is charged with a violation of section 

103(k) of the Act, and the theory of MSHA 1 s case is that someone made an 

unauthorized entry into the underground mine tunnel on September 3, 1980, 

contrary to the conditions and prohibitions imposed on the respondent 

by the section 103(k) order and modifications. 

Section 103(k) of the Act states in pertinent part: 

In the event of any accident occurring in a 

coal or other mine, an authorized representative 

of the Secre , when present, may issue such orders 

as he deems appropriate to insure the of any 

person in the coal or other mine, and the operator 

of such mine shall obtain the approval of 

representative, in consultation with appropriate 

State representatives, when feasible, of any plan 

to recover any person in such mine or to recover the 

coal or other mine or return affected areas of such 

mine to normal. 

1527 
MSHA's regulations dealing with the reporting and investigation of 

mine accidents, Part 50, Title 30, Code of Federal Regulations, states 

as follows in the "definitions" found at section 50.2(h)(6): 

11Accident 11 means, 

* * * An unplanned mine 

within 30 minutes 

* fire not extinguished 

of discovery; 

It seems clear to me that section 103(k) clearly authorized the 

issuance of the initial order of August 8, 1980, withdrawing miners from 

the mine. The fire in question is clearly an "accident" within the meaning 

of the regulations requiring that it be reported, as well as the authority 

of MSHA to conduct the investigation which took place in this case. In 

addition, I conclude and find that the issuance of the subsequent modifications 

to the initial order were within .the authority granted the inspectors 

by section 103(k), were properly and validly issued, and that the respondent 

was obligated and bound by the conditions set forth in those modifications. 

See: MSHA v. Eastern Associated Coal Company, HOPE 75-699, IBMA 76-98, 

FMSHRC 2467, 2472, September 2, 1980, where the Commission held that an 

inspector is not restricted to enforcing only mandatory safety standards 

or preventing imminent dangers. Eastern Associated Coal concerned the 

very same statutory section 103(k) provision in issue in the instant case. 

Section llO(a) of the Act, 30 U.S.C. 820(a), provides in pertinent 

part that "/t/he operator of a coal or other mine in which a violation 

occurs of a mandatory health or sa\ety standard or who violates any 

other provision of this Act, shall be assessed a civil penalty by the 

Secretary ••• " (emphasis supplied)t In the instant case, respondent 

is charged with a violation of the conditions imposed upon it by the 

validly issued modified withdrawal order issued pursuant to section 103(k). 

If MSHA can establish by a preponderance of the credible evidence adduced 

here that the terms of the modified order have been violated, then it has 

established a violation of section 103(k), and a civil penalty assessment 

may be made for that violation. Therefore, the first question to be 

addressed is whether or not MSHA has carried its initial burden of establishing 

the violation as charged. Secondly, if a violation has been established, 

the next question is whether or not the respondent Miller Mining Company 

should be held accountable and responsible for that violation and assessed 

a civil penalty. 

Respondent does not dispute the fact that someone entered the mine 

on September 3, 1980, and that MSHA's district manager had not approved 

this mine entry. In addition, it is clear that responde~t understood 

and agreed to abide by the conditions imposed by the district manager 

before reentering the mine (Exhs. P/R-3 and P.R-4). In addition, as argued 

by the petitioner in its post-hearing submissions, it seems clear to me 

from all of the evidence presented in this case that there is a strong 

inference that the person or persons who made the mine entry did not 

follow MSHA's conditions precedent at the time the entry was made. The 

1528 
thrust of respondent's defense is that MSHA produced no credible evidence 

to establish that the person or persons who entered the mine were employees 

of the respondent or that the respondent authorized or otherwise permitted 

the illegal entry. This is a matter bearing on the respondent's negligence, 

and it may not be used as an absolute defense to the question of whether 

a violation has occurred. 

It is clear from the case law, that under the 1977 Mine Act an 

operator may be held liable for a violation which occurs on mine property 

regardless of fault; United States Steel Corp., 1 FMSHRC 1306, 1 BNA MSHC 

2151, 1979 CCR OSHD 23,863 (1979); El Paso Rock Quarries, Inc., 3 FMSHRC 35, 

January 28, 1981; Nacco Mining Company, 3 FMSHRC 848, April 29, 1981, 

(1969 Coal Act). 

In an "independent contractor!! case arising under the 1969 Coal Act, 

Bituminous Coal Operators 1 Assn. v. Secretary of the Interior, 547 

F.2d 240 (4th Cir. 1977), the Court held that mine owners are 

liable for violations by independent contractors. Based on its law, 

the Court held that the mine owner is liable for a violation 

violated the Act or created the danger. The Court 

in a curiam opinion on December 24, 1981, dealing with a case arising 

under section 103(k) of the 1977 Act, Harman Mining Corporation v. FMSHRC 

4th Cir., No. 81-1189. My prior decisions in Harman, which subsequently 

became the final decisions of the Commission, are reported at 3 FMSHRC 

45, January 2, 1981. Although the case at hand does not involve an 

independent contractor, the principal that a mine owner is liable for 

a violation occurring on mine property, regardless of falut, still applies. 

In view of the foregoing, and ~n the basis of a preponderance of the 

evidence adduced in this case, I conclude and find that the petitioner has 

established a violation of section 103(k) of the Act as stated in the 

citation. Accordingly, Citation 0601832, September 5, 1980, IS AFFIRMED. 

The parties stipulated that the respondent is a small to medium size 

mine operator and that a reasonable penalty will not adversely affect its 

ability to continue in business, and I adopt these stipulations as my findings 

on these issues. 

History of Prior Violations 

The record establishes that the citation issued in this case was 

the first one served on the respondent under the 1977 Mine Act, and that 

the respondent has had no previously assessed violations: I find this 

to be an exemplary safety record and this is reflected in the civil penalty 

assessed by me for the citation in question. 

The facts in this case reflect that no injuries resulted from the 

mine fire in question, and that at the time the order issued all personnel 

had been removed from the underground mine by mine management. In · 

1529 
addition while it is true that no one knows whether the person or per sons 

who entered the mine were protected from exposure to hazardous gasses 

or somke, the fact is that the conditions at the mine portal on September 2 

and 3, 1980, presented a hazard of exposure to smoke and gasses from the 

mine fire in question. I believe it is reasonable to assume that anyone 

entering the mine was exposed to these hazards. Accordingly, I conclude 

and find that the violation was serious. 

Good Faith Complaince 

The order issued in this case was terminated on January 7, 1981, 

after the respondent "was made aware of the danger and public law 95-164" 

(Exh. P/R-11), In addition, the record reflects that respondent cooperated 

with MSHA during the course of its investigation in this case, and the 

inspector's who prepared the report in this regard acknowledged this fact 

(Exh, R-2, p.6), I conclude and find that respondent demonstrated good 

faith compliance. 

Negligence 

Respondent argues that it took reasonable and responsible precautions 

to prevent any unauthorized entry into the mine in violation of the withdrawal order. Although respondent does not elaborate further in its 

posthearing written submissions, during the course of the hearing 

Mr. Miller and Mr. Kopelson testified that the decision to remove security 

personnel from the mine portal area was based on safety considerations 

because of the smoke and gasses being emitted from the portal, Both 

Mr. Miller and Mr. Kopelson testified as to certain ill effects they 

experienced while in close proximity (30 or 40 feet) to the portal, and 

testimony was also presented that the company safety director (Sandy Rettagliata) 

suffered from possible smoke inhalation and may have been hospitalized. 

Given these circumstances, respondent suggests that the decision to remove 

all personnel, including the security guard, away from the portal area 

for a distance of 250 or' 300 feet, was to insure the safety of personnel, 

rather than to provide an opportunity for someone to enter the mine without 

being seen by the guard. 

Former security guard Allan White testified that Project Manager 

Licari came to the portal area sometime after 12:30 a.m., September 3, 1980, 

and instructed him to remain in that area to insure that all miners left 

and that the area was secure. Mr. White claims that Mr. Licari.gave him 

no reasons for those instructions, and that sometime later Security 

Chief Schmidt instructed him to remove himself from the portal plaza 

area and establish his guard post "on top of the hill". Although Mr. Smith 

had a partial view of the plaza area from this newly established position, 

he could not see the actual mine portal. He also indicated that no one crossed 

his guard post on the hill except for Mr. Keopke arid Mr. Schmidt, but 

that there were other means of access to the plaza area which he could 

not observe. 

15;)0 
Although Mr. Schmidt and Sandy Rettagliata did not testify in this 

case, Mr. Licari could not recall ordering security personnel away from 

the plaza area, but "assumed" that he did (Tr. 262). He explained that 

he did so out of concern for the safety of all mine personnel, and that 

he was concerned even before Mr. Miller instructed him to secure the area. 

He also explained that the reason personnel were not removed from the 

plaza area prior to this time was that the period September 2-3, was the 

first time the portal was opened (Tr. 268). 

Petitioner's arguments in support of a finding of gross negligence 

on the part of the respondent is based on certain circumstances and factors 

dealing with the control and posting of the guard force, the "unusual" 

presence of mine management personnel at the mine in the early hours of the 

morning, management's "motive" in wishing to see the fire extinguished, 

and the damaging testimony by_ Mr. Hansen, which petitioner concludes 

establishes a strong inference that Mr. Licari had prior knowledge of 

the hole in ventilation tubing and that the fan would exhaust the smoke 

once it was turned on. 

Petitioner's alternative argument in support of a finding of ordinary 

negligence is based on an assertion that respondent's removal of security 

guard White from the portal plaza area to a position on a hill where he 

could not see anyone entering the sealed portal area at least constituted 

ordinary negligence, partiucaly in view of the numerous offers of assistance 

from the nearby community to enter the mine and extinguish the fire. 

Petitioner argues that respondent had a duty to do everything reasonable 

to safeguard against anyone entering the mine, and petitioner obviously 

believes that removing a guard to ~ position where he could not observe anyone 

entering was unreasonable. 

Considering all of the circumstances presented in this case, 

petitioner's "circumstantial case" arguments are plausible. That is, 

it is possible for one to conclude that mine management embarked on a 

"watergate" type conspiracy to set the stage so that someone could enter 

the mine and knock a hole in the ventilation tubing with an axe, thereby 

solving a problem that State and Federal Enforcement officials could not 

solve from the day the fire started in the mine. On the other hand, 

respondent's assertions that mine personnel were removed from the area 

for safety reasons is equally plausible. However, the one disturbing 

feature in respondent's explanation is that the one person who could 

have prevented the entry, the security guard, was ordered to withdraw 

to a position where he could not see the portal and do the job that he 

was hired to do, namely to insure that no one entered the mine. I am 

not convinced that the security guard could not have been positioned in 

such a manner as to insure his safety as well as to insure that absolute 

security against an illegal mine entry be maintained. In short, after 

careful consideration of all of the evidence in this case, I conclude 

and find that respondent had a duty to insure that no one enter the sealed 

mine portal, and that by ordering the security guard to reposition himself 

to an area where he could not maintain the area in question totally secure 

1531 
against an illegal entry, respondent failed to exercise reasonable care 

to prevent the violation. Failure to exercise reasonable care in these 

circumstances constitutes ordinary negligence, and that is my finding. 

Penalty Assessment 

On the basis of the foregoing gindings and conclusions, and taking 

into account the requirements of section llO(i) of the Act, including 

the fact that respondent has an excellent safety record, and voluntarily 

withdrew all miners and secured the mine when the fire started, I conclude 

and find that a civil penalty assessment of $250 is reasonable for the 

citation which I have affirmed. 

Order 

Respondent IS ORDERED to pay a civil penalty in the amount of $250 

within thirty (30) days for the violation in question, and upon receipt 

of payment by the petitioner, this matter is DISMISSED. 

Distribution: 

Debra L. Gonzales, Esq., U.S. Department of Labor, Office of the Solicitor, 

450 Golden Gate Ave., Box 36017, Room 11071 Fed. Bldg., San Francisco, 

CA 94102 (Certified Mail) 

Michael Miller, President, Miller Mining Co,, Inc., 2029 Century Park 

East, Suite 2500, Los Angeles, CA 90067 (Certified Mail) 

1532 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 AUG 5 1982 

CONSOLIDATION COAL COMPANY 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRET A.RY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ti oner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

Contest of Citation 

Docket Nao PENN 82-44-R 

Citation No. 1143669 

Civil Penalty Proceeding 

Docket No. PENN 82-99 

A.C. 36-00807-03107 V 

Renton Mine 

Appearances: Robert Vukas, ., Pittsburgh, Pennsylvania, 

for Consolidation Coal Company, 

David T. Bush, Esq., Office of the Solicitor, 

U.S. Department Labor, Philadelphia, 

Pennsylvania, for the Secretary of Labor. 

Before: Judge Melick 

These consolidated cases are before me pursuant to 

sections 105(a) and lOS(d) of the al Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act", to 

contest a citation containing specia-r-findings under section 

104(6) (1) of Act (Citation No. 1143669) and for review 

of a civil penalty proposed by the Mine-Safety and Health 

Administration (MSHA) , for that citation. 1/ The issues 

before me ,'tre whet.her the Consolidation Coal Company (Consol) 

!I Section 104(d) (1) provides in part as follows: 

"If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety 

1533 
violated the regulatory standard at 30 C.F.R. § 75.1725(a) 

as alleged and, if so, whether that violation was "significant 

and substantial" as defined in the Act and as interpreted in 

Secretary of Labor v. Cement Division, National Gypsum 

Company, 3 FMSHRC 822 (1981), and whether the violation was 

the result of the "unwarrantable failure" of operator to 

comply with the law. An appropriate civil penalty must also 

be assessed if a violation is found. Evidentiary hearings 

on these issues were held in Pittsburgh, Pennsylvania on 

June 24, 1982. 

The citation at bar was issued by MSHA 

Murin on December 18, 1981, and alleges as 

spector Frank 

llows~ 

A 103(g) (1) request 2 was initiated concerning a malfunction had occurred to the 

man-hoist at the Renton Mine on the 4 pomo ft 

on October 21; 1981. During the course of the 

investigation it was that were 

made to the overspeed device for the hoist, 

however [sic] were not completed prior to lowering 

workmen into the mine. A locking screw 

prohibits movements overspeed nut 

was not replaced into itiono (The 

nut is used to hold overspeed assemb 

place.) 

The cited regulatory standard, 30 C.F.R. § 75.1725(a} 

reads as follows: "Mobi and stationary machinery and 

equipment shall be maintained in safe operating condition 

and machinery or equipment unsafe condition shall be 

removed from service immediatelyo" 

fn. 1 (continued) 

standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, 

such violation is of such nature as could signi cantly 

and substantially contribute to the cause and feet of a 

coal or other mine safety or health hazard, and if he finds 

such violation to be caused by an unwarrantable ·failure of 

such operator to comply with such mandatory health or ' 

safety standards, he shall include such finding in any 

citation given to the operator under this Act." 

2/ A request for an inspection by the Secretary under 

Section 103(g) (1) of the Act, is one initiated by a miner 

or representative of miners. 

1534 
The essential· facts in this case are not in serious 

dispute. The specific issue is whether those facts support 

a violation of the cited standard, i.e., whether or not the 

cited man-hoist had been operated in an unsafe condition. 

The problem arose on October 21, 1981 at the beginning of 

the 4 p.m. shift. As the man-hoist (cage} was being lowered 

for the third time that shift it suddenly stopped. According 

to Leonard Conti, one of the miners on the cage at the time, 

it stopped so suddenly that it buckled his knees and "bounced 

up and down." It was about 15 minutes before the cage 

started again and descended the remaining 50 to 75 feet to 

the bottom of the 520-foot shaft. Conti had previously 

experienced similar sudden stops of the cage as a result of 

blown fuses. 

Maintenance foreman Richard Murphy and general plant 

foreman Emerick Kravic were called in to correct the problem. 

A round retaining nut designed to hold a brass washer and 

tripping mechanism on the man~hoist overspeed governor had 

come loose thereby causing the overspeed governor to prematurely trigger and stop the man-hoist. When operating 

correctly the governor is designed to bring the man-hoist to 

an emergency stop if for some reason the rate of ascent or 

descent exceeds a pre-set speed. After the emergency stop 

in this case the miners in the third cage were apparently 

lowered to the bottom as Murphy held the trip bar in position 

with a screwdriver. The MSHA inspectors did not find this 

procedure to have been unacceptable fo~ the limited purpose 

of allowing the miners to escape. 

The evidence shows that Murphy then tried to re-thread 

the retaining nut onto the rotating shaft of the governor as 

the man-hoist was raised. Initially there was some difficulty 

in re-threading the nut and it apparently slipped off the 

shaft several times during the ascent. There was only a 

small opening in which to work and the nut was rounded with 

no machining (see Operator's Exhibits 16, 17, 19 and 22}. 

According to Murphy, he was nevertheless able to re-thread 

the nut aided by the rotation of the shaft as the cage 

ascended. No one was in the cage during this ascent and 

MSHA does not question these efforts by the operator to 

correct the problem. 

1535 
However mine superintendent Andrew Hathaway then 

directed that the cage again be lowered with additional 

miners without an intervening "dry run." Maintenance 

foreman Murphy went down with the miners in this cage even 

though he was aware that the retaining nut could again 

unthread as the hoist descended and the shaft rotated in the 

opposite direction. Murphy testified that he was nevertheless 

satisfied that necessary repairs had been completed. 

Harley Pyles, director of engineering services for 

Consol and a graduate mechanical engineer, conceded that it 

would be "common knowledge" that a setscrew or similar 

locking device would be necessary to prevent a retaining 

nut, such as the one here at issue, from loosening on a 

rotating shaft. Maintenance foreman Denny Myers also told 

inspector Murin that a tapered locknut or cotter pin should 

have been used to prevent the retaining nut from unthreading. 

Myers was nevertheless confident the nut would stay in 

position on the fourth cage because "he watched it all the 

way down. 11 

The fourth cage was lowered without incident and the 

governor was then dismantled. It was at this point discovered 

that the retaining nut contained a recessed setscrew whichf 

if tightened, would prevent thk nut from unthreading on the 

rotating shaft. The setscrew was apparently not previously 

discovered because it was obscured by grease and dirt. 

Because of the relatively old age of the hoist there was, 

moreover, no operating manual available that might have 

shown the existence of the setscrew. 

In deciding whether there was a violation of the cited 

standard in this case it is essential to determine whether 

the man-hoist was, during its fourth descent, being "maintained in [a] safe operating condition" or alternatively 

whether that man-hoist should have been removed from service 

because it was in an "unsafe condition." As might be 

expected there is great divergence of opinion in this regard. 

On the one hand, MSHA inspector Murin testified that it was 

unsafe to have operated the fourth cage without the setscrew 

to lock the retaining nut on the governor. According to 

Murin, without that setscrew or other means to prevent the 

retaining nut from unthreading, that nut could indeed have 

again come loose, engaged the governor and brought the manhoist to a sudden stop. Murin thought that such abrupt 

stopping would in itself be hazardous. He thought that 

resulting injuries from possibly falling to the floor or 

1536 
against the walls of the man-hoist could be serious and 

involve broken limbs and sprained muscles. Murin also 

opined that the sudden stopping of the man-hoist could place 

undue strain on the wire rope causing it to stretch or "pop 

a cord." He thought the rope might also jump from the drum 

and become entangled. Murin admitted however that in spite 

of these alleged hazards he knew of no requirement or 

suggestion by MSHA, by the rope manufacturer, or by anyone 

else for an examination of the rope and/or drum after such 

sudden stops. Moreover, MSHA inspector Gerald Davis, who 

has specialized training and experience inspecting elevators 

and man-hoists, conceded that he has in the past tested manhoists, including the man-hoist in this case, in an overspeed 

condition to determine whether the overspeed governor was 

properly functioning. Although Davis performs these tests 

during the ascent phase of the man-hoist operation it would 

appear nevertheless to place a similar strain upon the wire 

ropes. 

On the other hand it appears to be undisputed that the 

fourth cage was lowered manually at a controlled slow rate 

of speed and that at least one person kept watch on the 

suspect retaining nut to make sure it did not unthread 

during the descent. In addition 1 mechanical engineer Harley 

Pyles testified that even asstμning that the cage woulq have 

been stopped by the overspeed governor that would have been 

unlikely to have lead to any rope or drum damage. He pointed 

out that the braking effect was not that extreme and that 

the ropes are in any event designed with a safety factor of 

from 5 to 10. At worst, according to Pyles, the riders 

would experience some buckling of the knees. 

The evidence in this case also shows that over the 

course of a year the man-hoist at issue will come to an 

emergency or sudden stop about six times. There is no 

evidence that anyone has ever been injured or that any 

damage has ever occurred as a result. I also note that the 

hoist rope is examined by x-ray every six months and is 

visually inspected every 24 hours. 

For the reasons that follow I conclude that although 

the operation of the fourth cage in the cited mqnner was 

indeed not free from danger it did not constitute a "significant and substantial" violation. At the very minimum 

there was the admitted danger according to Consol engineer 

Harley Pyles to the mechanics who were manually rethreading 

the retaining nut while the shaft was in motion. A similar 

153? 
potential danger existed during the fourth descent of the 

cage as the mechanics watched the nut and inferentially 

were prepared to intervene should that nut begin to unthread. 

Whether a violation is "significant and substantial" 

depends on whether, based on the particular facts surrounding 

the violation, there existed a reasonable likelihood that 

the hazard contributed to would have resulted in an injury 

of a reasonably serious nature. Secretary of Labor v. 

Cement Division, Natiopal Gypsum Company, 3 FMSHRC 822 at 

page 825. The test essentially involves two considerations, 

(1) the probability of resulting injury 1 and (2) the 

seriousness of the resulting injury" 

On the precise facts of this case I find a very low 

probability of injury" The retaining nut that had caused 

the initial problem had been completely rethreaded before 

the cited fourth cent, the descent was monitored and 

manually controlled at a low rate of speed and an individual 

continuously monitored the position of the retaining nut 

during the descent to make sure that it did not become 

unthreaded. I therefore find it highly unlikely that the 

cage could not have been brought to a gradual and complete 

stop before any loss of the retaining nut. Moreoverv even 

with the unlikely loss of that retaining nut it pot 

disputed that descent the man-hoist would have been 

halted by the intervention of the overspeed governor. Since 

the cage was also descending at a slow rate speed the 

alleged dangers attributed to sudden stopping would have 

also been greatly diminished. In addi~ion the evidence 

shows that over the course of a year the man-hoist had 

almost routinely come to abrupt stops for various reasons 

without any history of resulting injuries or damage. 

Finally, I observe that MSHA's own man-hoist "expert" 

admitted performing tests of the cited overspeed governor by 

triggering an emergency stop of the man-hoist. Although the 

test was apparently performed during an ascent phase I do 

not find significant variance between this acceptable ''test" 

and the alleged hazardous operation cited. It would appear 

that if MSHA's "test" does not place unacceptable stress on 

the wire ropes then Consol's operation of the man-hoist in 

the manner here cited posed no significantly greater hazard 

in this regard. 

Under all the circumstances I cannot find that the· 

violation was "significant and substantial." It is not 

therefore necessary to decide whether the violation was the 

result of "unwarrantable failure," Note,!/ supra. Since I 

1538 
have found that the hazards alleged by MSHA were in fact 

quite improbable I attribute relatively low gravity to the 

violation. To the extent that there was some hazard, 

however remote, in operating the fourth cage without a 

setscrew, locking nut or other locking device on the retaining nut and in light of the concessions by Consol's own 

witnesses that the use of such a device would be generally 

accepted "common practice" I find that the operator was 

negligent. It is observed that the fourth cage was 

lowered the ent overspeed mechanism was dismantled and, 

upon discovery of the setscrew the retaining nut, was 

reassembled with the setscrew tightened to prevent the 

unthreading of the retaining nut. The condition was 

accordingly abated in a timely and indeed even 

before the condition had been MSHA. It is undisputed that the operator is in size. I note that 

the Renton has a rather substantial history paid 

violations, , there is no evidence that any violation 

of a similar nature has ever cited. Under the 

circumstances and considering evidence in light of the 

criteria under Section llO(i) of Act I conclude that a 

civil penalty of $100 is appropriate. 

ORDER 

~ 

Citation No. 1143669 is affirmed, however special 

"significant and substantial" findings made therein are 

hereby stricken. Consolidation Coal Company is ORDERED to 

pay a civil penalty of $100 for the vio ation in Citation 

No. 1143669 within 30 days of the date f this 

r 

As 

Ga Me~/ j t Chief rministrative Law Judge 

Distribution: By ma 

Robert Vukas, Esq., Consol dation Coal Company,,Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 

David T. Bush, Esq., Office of the Solicitor, U.S. Department 

of Labor, Rm. 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 

Harrison Combs, Jr., Esq., United Mine Workers of America, 

900 15th Street, N.W., Washington, D.C. 20005 

1539 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 AUG 9 1982 

JOSEPH W. HERMAN, 

Complainant, 

v. 

IMCO SERVICES, 

Respondento 

~~~~~~~~~~~~~~~~~~~-

Appearances: 

Joseph W. Herman, appearing Pro Ses 

Reno, Nevada 

Richard O. Kwapil~ Jr,_, Esqo, 

Woodburn, Wedge, Blakey & 

Reno, Nevada 

For the Respondent 

Before: Judge John J. Morris 

) 

) COMPLAINT OF DISCHARGE, 

) DISCRIMINATION OR INTERFERENCE 

) 

) DOCKET NOo WEST 81-109-DM 

) 

'\ 

I 

,, 

, 

Mine: Mountain Springs Plant 

DECISION 

Complainant Joseph W. Herman, (Herman)$ brings this action on his own 

behalf alleging he was discriminated against by his employer, Imco 

Services, (IMCO), in violation of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 ~seq. 

The applicable statutory prov1s1on, Section 105(c)(l) of the Act, now 

codified at 30 u.s.c. 815(c)(l), provides as follows: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, representative of miners or applicant for employment in 

any coal or other mine subject to this Act because such 

miner, representative of miners or applicant for employment has filed or made a complaint under or related to 

this Act, including a complaint notifying the operator 

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

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

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

because such miner~ representative of miners or applicant 

for employment is the subject of medical evaluations and 

1540 
potential transfer under a standard published pursuant 

to section 101 or because such miner, representative of 

miners or applicant for employment has instituted or 

caused to be instituted any proceeding under or related 

to this Act or has testified or is about to testify in 

any such proceeding, or because of the exercise by such 

miner, representative of miners or applicant for employment on behalf of himself or others of any statutory 

right afforded by this Act. 

After notice to the parties a hearing on the merits was held in Reno, 

Nevada on February 21, 1982, The parties filed post trial briefs. 

ISSUES 

The threshold issue is whether complainant 1 s failure to le any 

complaint for almost a year after he was allegedly discriminated against 

requires a dismissal of his claim, 

Secondary and alternative issues are whether respondent discriminated 

against complainant, and, if so, what damages are appropriate. 

SNYOPSIS OF THE CASE 

Joseph Herman asserts he was when he complained to company 

officials and to the Mine Safety and Health Administration (MSHA) about an 

unsafe storage bin at IMC0 1 s Battle Mountain project. Imco denies these 

allegations and asserts that budget overruns resulted in the termination 

of the project and Herman's position as supervisor. 

The legal principles applicable in this case are enumerated in Pasula 

v. Consolidation Coal Co., 2 FMSHRC 2786 (1980) rev'd on other grounds, sub ~~~~~~~~-=~~~.....,..~~ 

nom Consolidation Coal Co. v. Marshall F 2d (3rd Cir. 1981) 

and in Chacon v. Phelps Dodge Corporation, 3 FMSHRC 2765, (1981). 

SUMMARY OF THE EVIDENCE 

The uncontroverted evidence concerning the late filing of the 

complaint will be initially reviewed. 

Herman was terminated as Senior Project Engineer by IMCO at the Battle 

Mountain project on April 9, 1979 (Tr. 56, Pl). After being discharged 

Herman thought he was a scapegoat and, after thinking it over, he filed a 

claim (Tr. 152). Herman's initial effort at filing a claim was a letter he 

wrote on March 3, 1980 to the Employment Security Department for the State 

of Nevada. His letter was referred to the Department of Occupational 

Safety and Health (Nevada) on March 11, 1981. The Department forwarded 

Herman a complaint form. 

2 

1541 
On April 7, 1980, Herman used the form furnished to him by Nevada and 

filed a detailed two page discrimination complaint with the State (Tr. 139, 

142, Pl). In due course the complaint was referred by Nevada to the 

Federal Mine Safety and Health Administration (MSHA). The agency assigned 

Juan Wilmoth as a special investigator for the case (Tr. 139, 144, 147, PS, 

P7). 

On September 3, 1980, after conducting its investigation, MSHA advised 

Herman that no discrimination had occurred within the meaning of the Act 

(P6). There was subsequent correspondence between Herman and MSHA. Herman 

lodged his complaint before this Connnission on January 5, 1981 (Connnission 

File). 

DISCUSSION 

Section 105(c)(2) of the Act, [30 U.S.C. 815(c)(2)]~ provides in part 

as follows: 

Any miner or applicant for employment or representative of miners who believes that he has been 

discharged, interfered with, or otherwise discriminated 

against by any person in violation of this subsection 

may~ within 60 days after such violation occurs~ file 

a complaint with the Secretary alleging such discriminationo 

It has been held that none of the deadlines in the discrimination section 

of the Act are jurisdictional in nature. This view originates in cases 

arising under the 1969 Coal Act. Christian v. South Hopkins Coal Company, 

1 FMSHRC 126, 134-36 (1979). 

In Bennett v. Kaiser Aluminum and Chemical Corporation, 3 FMSHRC 1539, 

(June, 1981) it was stated that 

The proper test is whether tolling the filing period 

is consonant with the purposes of the statute. American 

Pipe and Construction Co. v. Utah, 414 U.S. 538, 557-58 

(1974). Congress spoke plainly on the subject when it 

declared that the 60 day filing period "should not be 

construed strictly where the filing of a complaint is 

delayed under justifiable circumstances." S. Rep. No. 

95-181, 95th Cong., !st Sess. at 36, reprinted in, (1977) 

U.S. CODE CONG. & AD. NEWS at 3436. 

The first action taken by Herman in regards to his discrimination 

claim was when he wrote to the Nevada Employment Security Department on 

March 3, 1980 (Tr. 152, PB). I consider this letter to be at least an 

attempt, within the meaning of the Act, to file a complaint. However, by 

that time almost 11 months had passed since the alleged discrimination. 

1542 
During the trial the Judge explained the 60 day statutory limitation 

to Herman. Herman gave two reasons for his late filing. These were that 

he discussed the filing with MSHA officials. Further, he stated he "wasn't 

familiar with court procedures naturally associated with a case of this 

nature" (Tr. 154, 156). 

I find from the evidence that Herman's discussion with MSHA officials 

occurred after investigator Wilmoth had been appointed. In point of time 

this was after the complaint filed with Nevada had been referred to MSHA 

(Tr. 157, 159, PS). Accordingly, this was not a situation where Herman 

could have been mislead by MSHA officials as in Christian v. South Hopkins 

Coal Company, Inc., supra. 

Herman's secondary claim that he was unfamiliar with court procedures 

does not constitute justi ation for the delay. Herman no doubt remained 

unfamiliar with court procedures since when he filed his complaint it was 

in the wrong jurisdiction. The evidence fails to establish any facts that 

would justify the late filing of the complaint. 

For these reasons I conclude the complaint was not timely filed and it 

should be dismissed. 

IMCO asserts that a further procedural delay requires dismissal of the 

claim. This delay arises from the statutory requirement that the person 

claiming to have been discriminated against has 30 days to proceed with his 

own suit after the Secretary has refused to proceed, 30 U.S.C. 815(c)(3). 

IMCO's secondary procedural argument lacks merit. The Commission file 

reflects that MSHA wrote Herman on September 3, 1980 and advised him that 

they found no violation of the Act. On November 24, 1980, after Herman had 

apparently written to the MSHA office in Reno, Nevada, MSHA again wrote and 

advised Herman that he had "30 days to file with the Review Commission." 

The Connnission file further contains Herman's letter of January 5, 1981 

directed to the Commission inquiring about his claim. After he was advised 

by MSHA that they would not pursue his case Herman's actions were such that 

the strict application of the 30 days filing requirement would not be 

warranted. 

Herman's post trial brief states that there is a two year limitation 

controlling in this case. Perhaps such a limitation is contained in the 

general statutes of the State of Nevada. However, a Nevada statute would 

not apply here. The pertinent controlling limitation for filing a 

complaint is the 60 day provision contained in the Act, 30 U.S.C. 

815(c)(2). 

However, for the reasons initially stated, namely, because of the 

delay of approximately 11 months before any claim was filed, I rule that 

the complaint should be dismissed as not timely filed. 

1543 
The cases previously cited relating to the timely filing of complaints 

are Judge's decisions. Inasmuch as the Commission has not passed on this 

issue, I deem it necessary to review the merits of the case and to enter 

alternative findings of fact and conclusions of law. 

Accordingly, all findings of fact and conclusions of law hereafter 

stated relating to the merits of the case are in the alternative to the 

primary ruling dismissing the complaint. 

EVIDENCE ON THE MERITS 

The essential facts .are controverted and as hereafter noted I credit 

Herman's version of the facts. 

Joseph W. Herman, age 65, with a degree in mechanical engineering, was 

hired by IMCO on April 4, 1978 (Tr. 20, 21). He was employed as the Senior 

Project Engineer at the IMCO Mountain Springs plant near Battle Mountain, 

Nevada (Tr. 22), Herman's duties included the supervision and construction 

of facilities to enhance the production of barite (Tr. 23, 24). Barite, 

which is mined by the open pit method, a white chalky powder. It is 

used as a seal in the drilling process (Tr. 24), 

Herman's supervisor was Norman Cornell 0 located in Houston, Texaso On 

the site Herman cooperated with Dave Brown and John Miller, IMCO managers 

(Tr. 25, 26). IMCO and Herman agreed his work assignment was of a 

temporary nature which would terminate when the Battle Mountain project was 

finished, Herman also agreed not to leave before the project was completed 

(Tr. 28). 

Herman supervised the building of a boiler room as well as the installation of the boiler. His principal dut involved the drier. His 

crew averaged about 25 workers (Tr. 34). The only other engineer available 

was Cornell who would occasionally fly in from Houston (Tr. 34). 

About March 3, 1979, a question arose over the safety of a 200 ton 

storage bin. The dimensions of the bin had been furnished by IMCO's 

engineering department, Herman (not a structural engineer) calculated the 

load bearing capability of the structure and became alarmed. After 

discussing the matter with Cornell it was agreed that the concrete slab 

could be enlarged (Tr. 37-39). 

After the slab was poured the next question centered on the supports 

for the structure (Tr. 39). On April 9, Cornell and Herman talked at 

length. Herman told Cornell that when the bin was loaded the columns would 

self destruct, twist, and collapse (Tr. 40). Herman further explained the 

basis for his views (Tr. 40-41). Herman recommended that certain remedial 

action be undertaken (Tr. 42). 

Cornell told Herman to proceed with the construction "irregardless", 

and under any condition (Tr. 39). Cornell also said not to worry if it 

1544 
was unsafe but to proceed as per the drawings and sign them (Tr. 41, 43). 

Herman told Cornell that to make him liable for something he felt was 

unsafe would jeopardize his engineering integrity (Tr. 42). 

The next day Herman, following Cornell's directions, erected the bin 

by raising it into position with a boom. Herman intended to expedite the 

erection of the bin and then reinforce it before it was used (Tr. 44, 47). 

The following day Herman scheduled a meeting with Donald R. Barris, an 

MSHA representative. Before the meeting with MSHA Herman met Ed Ruth, an 

IMCO employee, in downtown Reno. Ruth told Herman that Dave Brown, the 

IMCO Manager, had advised Houston about Herman calling in MSHA about the 

bin (Tr. 129, 130). 

The meeting with Herman and MSHA took place 

representatives Burris and McAlexander attended. 

Lambert, the contractor, and Ed Ruth (IMCO). In 

John Miller was "in and out iv of the meeting (Tr. 

on April 11, 1979. MSHA 

Also present were 

addition IMC0 1 s manager 

48 9 49 9 R7). 

The focus of the meeting was the storage bin. Herman submitted his 

calculations to MSHA and it was agreed that MSHA would have its technical 

staff in Denver review the matter. The technical staff subsequently 

concluded that the bin structure should be redesigned (Exhibit P3). 

Herman called Cornell by telephone and told him of the meeting with 

MSHA to evaluate the safety of the bin (Tr. 56). l_/ Before Herman 

could finish [his conversation] Cornell said "Lay off your crew, and you 

are terminated immediately" (Tr. 57). Cornell stated the company was 

shutting down the project for reasons of economy. The Company had run out 

of money (Tr. 105). 

Herman told Cornell he would not leave until he had secured the area 

and properly shut it down. Herman shut down the project on April 12, 1979 

and left on April 13, 1979 (Tr. 62-64). 

Two weeks later Herman visited the site. Contractor Tomporski was 

present at that time (Tr. 64). 

1/ The record is unclear whether this pivitol telephone conversation 

between Herman and Cornell occurred before or after the meeting with MSHA. 

In either event the exact sequence is not vital. 

1545 
DISCUSSION 

The factual setting here involves extensive conflicts in the evidence. 

IMCO contends Herman failed to establish a prima facie case of discriminatory discharge. I disagree. 

Herman's complaints about the 200 ton bin which culminated in him 

calling in MSHA for an opinion were clearly protected activity. The 

evidence establishes Herman was forthwith and abruptly fired for that 

activity. The direct evidence: 11 1 told him [Cornell] of the meeting with 

MSHA to discuss the safety of the bin ,,, and before I [Herman] could 

finish he [Cornell] said I was terminated and lay off your crew" (Tr. 56~ 

57). A clear case of protected activity~ adverse action, and hostil has 

been established here Cf Chacon v. Phelps Dodge Corporation, 

IMCO denies the statements attr to Cornell by Herman. Cornel 

states the engineering problems had nothing to do with the decision to 

Herman. That determination was made because the ect costs were exceeding the budget (Tr. 199-201 • 

Cornell's testimony of the telephone call resulting in Herman 1 s 

discharge is based solely on Cornell refreshing his recollection with a 

summary previously prepared from logs" This summary was apparently prepared in April 1979 at the request of I·LiL Jones,. Cornell:s 

supervisor (Tro 214P R8) o No further explanation appears in the record 

the logs were prepared. The or inal detail of the daily 

telephone call logs was destroyed when Cornell left IMCOo 

I do not find Cornell's version of the telephone conversation to be 

credible. As indicated the foundation of the logs themselves is 

mysterious. Cornell has no direct recollection of the conversation when he 

discharged Herman but an obvious element in this case is Herman's 

volatility in matters of safety and ing integrityo 

Herman agrees that Cornell said he was shutting down the project because of budget problems but in my view Cornell seized on that reason to 

terminate Herman. 

The telephone log appears to be at best a self serving document. Unrelated to any particular date on the telephone log is the statement that 

"all candidates for the position of Project Engineer are given a copy of a 

list which is entitled 'Duties of a Project Engineer' o Copy attached. Joe 

Herman had been given this list. He does not measure up to the minimum as 

far as performing these duties 11 (RS) 0 However~ according to Cornell the 

basis for this observation was that he had on occasion reprimanded Herman 

concerning the costs of the project. In addition~ Herman would miss an 

occasional weekly report (Tr. 215). The record reflects that the project 

costs were only incidentally the responsibility of Herman, In fact Herman 

was so unrelated to the costs of the project he was not one of the company 

officials receiving a copy of the projected budget overrun prepared by 

1546 
IMCO's Manager Brown in April 1979 (R6). In addition, an occasional 

missing weekly report would not appear to establish that Herman did not 

"measure up." 

Cornell's testimony is conflicting. At one point he testified he was 

not aware of the bin problem before Herman's termination (Tr. 217, 218). 

At another point he testified to the contrary (Tr. 220). 

A further issue requiring discussion involves the specific date of the 

telephone conversation when Cornell fired Herman. The evidence indicates 

that this conversation took place on April 9, 1979. Herman noted there was 

a discrepancy as to that date. (Tr. 56, 57). Due to Herman's subsequent 

activity on the job site I conclude he could not have been terminated on 

the exact date of April 9. But the actual date is not vital to the case 

since the pivitol issues concern the protected activity and resultant 

immediate discharge. 

Was there a budget overrun? The budget overrun was initially 

generated in a memorandum dated April 3~ 1979. The written report~ 

prepared by IMCO's manager Brown states, in part~ "assuming a 10% allowable 

overrun, available capital was $1,980,000. This leaves a maximum balance 

of $194,359. Further, if these estimates are even remotely accurate, and I 

emphasize that they are extremely rough 9 we will be short by $116~500u (Tr. 

180~ R6). 

By IMCO's figures there would be an .058 shortfall. The projected 

shortfall is not impressive in relation to the total budget. IMCO's 

manager testified a written memorandum later confirmed his superior's 

verbal approval of his proposal. However, no such written confirmation was 

offered in evidence. The project was eventually completed within the 

original budget flgure (Tr. 188). 

Was the project shut down? I believe IMCO simply misspoke on this 

issue. IMCO's managers agreed the project continued (Tr. 182, 183). 

Herman found contractor Tompokaski was on the site when he visited two 

weeks after his discharge (Tr. 64). 

Was there a reduction in force, commonly called a RIF? IMCO's 

evidence shows contractor Tomporaski continued on the job after Herman's 

discharge. And the size of his crew remained the same (Tr. 183). Also 

destroying IMCO's claim of a RIF is its own written budget estimate (R6). 

That document states by April 20 "we should resume work on the drier" (R6, 

page 6). In short, work was to be resumed on the drier on the very day 

Herman's salary was terminated. Since the drier was Herman's primary 

responsibility any RIF was illusory rather than real. 

154? 
If a budget overrun, shut down, or reduction in force occurred they 

can be established by more credible evidence than that offered here. 

In Chacon v. Phelps Dodge Corporation, supra the Connnission directed 

its Judge's not to exceed appropriate limits in examining a company's 

business practices and I assume without deciding that a budgetary cutback 

can be a business practice. However, I find IMCO did not sustain its 

burden of proof as required by Pasula, supra. I conclude the IMCO's 

proported justification is so weak and so implausible that it was a mere 

pretext seized upon to cloak a discriminatory motive. 

But for the primary ruling of untimely filing, this case would be 

affirmed on the merits. 

REINSTATEMENT 

Complainant does not seek reinstatement (Tr. 68). 

MONETARY AWARD 

Any monetary award requires a summary of the evidence. 

Herman was hired at an annual salary of $24~000 (Tr. 22, 63). He left 

the the project on April 12, 1979. Herman estimated the project would be 

finished about the last week in May, 1979. The project was 85 to 90 

percent completed when he left (Tr. 27s 63-64), Herman's wages were 

terminated as of April·20, 1979. His agreement with IMCO was to stay until 

the project was finished (Tr. 101). 

Herman sought employment with several Nevada companies in the months 

following his discharge (Tr. 79). Generally, Herman would talk to the 

plant or personnel manager at the place of prospective employment. When he 

interviewed with these companies the same 11 barriers" arose when he 

discussed why he left IMCO (Tr. 79-87). 

Herman found employment on October 20, 1979, when he took a job with 

Sikorsky Engineering as an hydraulic engineer {Tr. 67). 

DISCUSSION 

In a proceedings brought by a miner on his own behalf under Section 

10S(c)(3) the Commission is to award back pay with interest as well as a 

sum for "all costs and expenties." 

Concerning the award for back pay: Herman was hired solely for the 

Battle Mountain project. His pay was terminated on April 20, 1979. 

1548 
Accordingly, his award for back pay would be for the six weeks until 

the project would have been completed. Based on his annual pay of $24,000 

Herman would be entitled to $2,769.18 (weekly gross of $461.53 x 6 weeks). 

Any award for back pay would necessarily include deductions for applicable 

state and federal laws concerning the withholding of taxes. Estle and 

Dunmire v. Northern Coal Company 4 FMSHRC 126 (1981). 

No further award would be made since there is no evidence of any 

additional costs or expenses. 

Herman seeks $166,000 in lost wages and $150,000 in punitive damages. 

No evidence supports the claim of lost wages other than as stated above. 

Herman's claim for punitive damages appears to be based on his view that 

IMCO interfered with his subsequent efforts at securing employment. 

Herman claims that this "interference" arose with prospective employers 

when he would advise them of the fact that he had left IMCO over an 

argument concerning safety. 

The evidence fails to show that this information in any manner influenced any decision of any prospective employers to hire or not hire 

Herman. The Act does not authorize punitive damages but if Herman had 

proven interference by IMCO with his subsequent employment his resultant 

costs and expenses could have been substantial. 

One additional feature of this case requires discussion. In his post 

trial brief Herman states he not a miner. IMC0 1 s reply brief accepts 

Herman's statement and asserts that the Commission lacks jurisdiction to 

entertain the case. 

I reject IMCO's argument. I consider Herman's statement to mean that 

he is a mining engineer and not per se a miner as that vocation is 

primarily defined. 1f The uncontroverted evidence shows that at this 

facility barite is mined by the open pit mining process. Herman was the 

mining engineer on the project. Since IMCO does business in Nevada and 

Texas it is, on these facts, a mine operator subject to the Act. 

2/ A miner: One who mines; as (1) one engaged in the business or 

occupation of getting ore, coal, precious substances, or other natural 

substances out of the earth. A Dictionary of Mining, Mineral, and Related 

Terms, United States Department of Interior, 1968. 

1549 
CIVIL PENALTIES 

The Connnission order of February 9, 1982 sets the perimeters of the 

complaint to be those facts set forth in the document filed with State of 

Nevada. The Conunission order further refers to civil penalties set forth 

in the Act. 

The Act provides that any violation of the discrimination section 

shall "be subject to the provisions of section 108 and llO(a) of the Act 

[30 u.s.c. 818, 820(a)]. The Act also authorizes a penalty in an amount 

not to exceed $10,000. 30 u.s.c. § 820(a). 

In assessing civil monetary penalties the Connnission is to be guided 

by Section llO(i) of the Act [30 U.S.C. llO(i)]. In construing a similiar 

civil penalty statute the United States Court of Appeals for the 8th 

Circuit stated that "[t]he assessment of penalties is not a finding but an 

exercise of a discretionary grant or power." Brennan v. OSHRC and 

Interstate Gas Company 487 F. 2d 438 (8th Cir. 1973). 

Considering the pertinent statutes and in view of the facts I deem 

that if an award were to be made in Herman's favor a civil penalty of 

$1,500 against IMCO would be appropriate. 

However all of the alternative findings are not operative and 0 based 

on the primary findings of fact and conclusions of law~ I enter the 

following: 

ORDER 

The complaint is dismissed as not timely filed. 

Distribution: 

Mr. Joseph W. Herman 

3525 San Mateo Avenue 

Reno, Nevada 89509 

Richard O. Kwapil, Jr., Esq. 

Woodburn, Wedge, Blakey & Jeppson 

1 East First Street 

Reno, Nevada 89509 

1550 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE AUG 1O1982 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

Petitioner 

v. 

UNITED STATES STEEL CORP., 

Respondent 

UNITED STATES STEEL CORP., 

Contestant 

v. 

SECRETARY OF LABOR, 

Respondent 

DECISION 

Civil Penalty Proceedings 

Docket No. PENN 81-86 

AC No. 36-00970-03080 

Maple Creek No. 1 Mine 

Contest of Citation and Order 

Docket No. PENN 81-47-R 

Maple Creek No. 1 Mine 

Appearances: David E. Street, Esq., Office of the Solicitor., 

U.S. Department of Labor, for Respondent 

Louise Q. Symons, Esq., for Contestant 

~ 

Before: Administrative Law Judge William Fauver 

These proceedings involve the same citation and order. In PENN 81-86-P, 

the Secretary seeks a civil penalty under section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et~· In PENN 81-47-R, 

under section 105(d) of the Act the company seeks review and vacation of the 

citation and order involved in the penalty proceeding. The cases were consolidated 

and heard at Falls Church, Virginia. 

Having considered the contentions of the parties and the record as a whole, 

I find that the preponderance of the reliable, probative, and substantial 

evidence establishes the following: 

FINDINGS OF FACTS 

1. At all pertinent times, United States Steel Corporation ("Respondent") 

operated Maple Creek No. 1 Mine, which produced coal for sale or use in or 

substantially affecting interstate commerce. 

2. On July 11, 1974, Notice to Provide Safeguard Number. 1 RCM was 

issued at the mine by the Secretary's statutory predecessor, the Secretary of 

the Interior. The safeguard reads in pertinent part: 

155.1 
The No. 13 self-propelled personnel carrier 

in 6 flat 20 Room Section was not provided 

with a lifting jack. All self-propelled 

personnel carriers at this mine shall be 

provided with a suitable lifting jack and 

bar. 

3. On November 3, 1980, about 8:00 a.m. Federal Mine Inspector Joseph 

Reid inspected the Spinner Shaft bottom of the mine, where he discovered 

four jeeps,each missing a lifting jack. He was accompanied by David Leone, 

Respondent's Safety Inspector, and told him that citations would be written 

on the four jeeps and that Respondent would be required to provide a lifting 

jack for each • For three of the jeep,s, lifting jacks were provided in 

short order, but a jack could not be found for the fourth jeep. Inspector 

Reid testified that then he told Leone that Respondent would have until 

9:15 a.m. to abate the violation as to the fourth jeep. However, Leone 

testified that while underground Inspector Reid never mentioned an abatement 

time and did not give him anything in writing to show a time allowed for 

abatement. 

4. After inspecting other parts of the mine, Inspector Reid returned 

to the Spinner Shaft bottom about 11:55 a.m., still accompanied by David Leone. 

Reid found the fourth jeep in the same position as he had left it, with no jack 

but a notation "Shop, no jack" chalke.,d on the jeep. Finding that the jeep was 

still operable and connected to power, he determined that the abatement time 

should not be extended and issued a section 104(b) withdrawal order on the 

jeep. Reid testified he would not have issued the order if the jeep had been 

rendered inoperable, that is, removed from power. To disconnect the jeep 

from the trolley wire would have taken a few minutes. A red MSHA tag was put 

.on the jeep showing that a government withdrawal order applied to it. Within 

~bout one hour the condition was abated and the withdrawal order was terminated. 

Later, at the mine surface Reid wrote Citation No. 844321, which specified a 

"Due Date" of 11 09:1511 hours. His inpsector's note book apparently includes 

a note of abatement time of 9:15 a.m. for this citation. 

5. A lifting jack for a jeep is necessary to return the jeep to the 

tracks in the event of a derailment. In such cases the time needed to get 

a jeep back on the track is likely to be in important safety factor, for 

example, to reduce the risk of collision with other vehicles or to remove 

a derailed jeep that may be blocking an effective and safe exit to miners 

in an emergency. 

DISCUSSION WITH FURTHER FINDINGS 

An adequately worded notice of safeguard was issued in 1974, requiring 

that each jeep (personnel carrier) be provided with a lifting jack. This 

safeguard was violated as charged in the citation on November 3, 1980. 

1552 
However, the order of withdrawal was improperly issued because in the 

oral issuance of its antecedent citation there was no clear communication 

of an abatement time. 

MSHA's procedure of orally notifying an operator's representative underground of a violation and writing a citation for it on the mine surface 

meets the notice requirements of the Act so long as the violation is described 

with sufficient·specificity. However, to sustain a section 104(b) withdrawal 

order, MSHA must prove that an abatement time was specified and communicated 

clearly to the operator's representative and that the violation was not 

abated within such time. There is a bona fide dispute between the inspector 

and Respondent's representative as to whether an abatement time was orally 

communicated to Respondent's representative. I find that the government has 

not proven by a preponderance of the evidence that Inspector Reid communicated 

a specified abatement time to Leone while Reid and Leone were underground. 

As a result, MSHA has failed to meet its burden of proof of an essential 

element. In cases of oral communication of a citation underground, it 

would appear a sounder practice for the Federal mine inspector to deliver 

something in writing to the mine operator's representative as to the abatement 

time, rather than risking a dispute.of testimony on that point. 

The citation will be sustained, but the order of withdrawal will be vacated. 

A penalty will be assessed for the violation based on the condition proved under 

the citation but not for conduct alleged in the vacated order of withdrawal. 

This was a serious violation because of substantial safety risks to miners 

in failing to equip a jeep with a lifting jack. 

Respondent was negligent in not providing a lifting jack for the fourth 

jeep before the citation was orally issued. 

The company's act of marking the jeep "Shop, no jack" was not sufficient 

to withdraw the jeep from service, because it was not disconnected from power 

or otherwise rendered inoperable. Such marking alone could not relieve 

the company of abating the violation. Cf. Secretary of Labor v. Eastern 

Associated Coal Corp., 1 FMSHRC 1473 (October 23, 1979). However, the 

gover~ment.has failed ~o p:ove its allegation of untimely delay in abating 

the violation because 1t did not sufficiently prove that an abatement time 

was communicated to Respondent's representative. 

CONCLUSIONS OF LAW 

1. The Conunission has jurisdiction over the parties and subject matter 

of these proceedings. 

2. In PENN 81-47-R, Respondent violated 30 CFR § 75.1403 as charged 

in Citation No. 844321. Based upon the statutory criteria for assessing 

a civil penalty for a violation of a mandatory standard, Respondent is 

assessed a penalty of $200 for this violation. 

1553 
3. In PENN 81-47-R, the Secretary proved the validity of the citation, 

but failed to prove the validity of the withdrawal order. 

ORDER 

WHEREFORE IT IS ORDERED: 

1. In PENN 81-47-R, Respondent, United States Steel Corporation, shall 

pay the Secretary of Labor the above-assessed penalty of $200.00 within 30 

days from the date of this decision. 

2. In PENN 81-86, Citation No. 844321, November 3, 1980, is SUSTAINED, 

and Order of Withdrawal No. 844325, November 3, 1980, is VACATED. 

{J)~ 1-~ WILLIAM FAUVER, JUDGE 

Distribution Certified Mail: 

David Street, Esq., US Department of Labor, Office of the Solicitor, 3535 

Market St., Room 14480 Gateway Building, Philadelhia, PA 19104 ~ 

Louise Q. Symons, Esq., U.S. Steel Corporation, 600 Grant St., Room 1580, 

Pittsburgh, PA 15230 

1554 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner Docket Noo VA 81-87 

Vo A. Co No. 44-05630-03001 

BILLY RAY MASTERS, 

Respondent Noo 1 Mine 

DECISION APPROVING SETTLEMENT 

Counsel for the Secretary of Labor filed on August 2~ 1982~ in the 

above-entitled proceeding a motion for approval of settlemento Under the 

settlement agreement, respondent would pay reduced penalties totaling 

$147, instead of the penalties totaling $294 proposed by the Assessment 

Office for the five violations involved in this proceeding. 

The motion for approval of settlement appropriately discusses the 

six criteria and gives reasons to support the parties' agreement under 

which respondent would pay penalties only half as great as those proposed 

by the Assessment Office. Respondent's answer to the Secretary's petition 

for assessment of civil penalty raises jurisdictional issues which should 

be addressed by me in this decision for respondent's future guidance even 

though the Secretary's counsel, in a settlement proceeding, was under no 

obligation to discuss the jurisdictional issues. 

Respondent's answer contends that his operations are not subject to 

the provisions of the Federal Mine Safety and Health Act of 1977 or to the 

regulations promulgated thereunder. Respondent explains that he is the 

owner and sole operator of equipment used to improve real estate for third 

parties. Respondent says that he does not employ any workers and that the 

mere fact that coal was removed from construction sites does not require 

him to comply with a set of complicated regulations because Congress did 

not intend for the Act to protect an individual from himself. 

All of the foregoing arguments have been made by other persons and 

have been rejected by the courts and the Commission. In Cyprus Industrial 

Minerals Corp., 3 FMSHRC 1 (1981), the Commission held that a site where 

an independent contractor was clearing land so that assessment of an ore 

claim could be made was a mine within the meaning of the Act. The Commission cited s. Report No. 95-181, 95th Cong., 1st Sess, 14 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 

95th Cong., 2d Sess, Legislative History of Federal Mine Safety and Health 

Act of 1977, p •. 602, in support of its ruling: 

1555 
The Committee notes that there may be a need to resolve 

jurisdictional conflicts, but it is the Committee's intention 

that what is considered to be a mine and to be regulated 

under this Act be given the broadest possible interpretation, 

and it is the intent of the Committee that doubts be resolved 

in favor of inclusion of a facility within coverage of the 

Act. 

In Ray Marshall v. Bobby Donofrio, 465 F.Supp. 838 (U.S.D.C.E.D. Pa 

1978), the court held th~t the Act covers coal businesses being operated 

by the owners of the businesses. The court noted that a miner is any individual working in a coal mine and that the Act does not exclude a person 

who owns and works in a mine. The court observed that the proposed Act to 

exclude coverage of mines worked by two or fewer persons was never passedo 

In Kraynak Coal Co. v. Ray Marshall, 604 F.2d 231 (3rd Ciro 1979)~ 

the court affirmed a district court 1 s holding that Kraynak Coal Company 

was subject to the Act even though the only persons involved in operating 

the mine were four brothers. In Secretary of the Interior v. Shingara, 

418 F.Supp. 693 (M.D.Pa. 1976), Ed and Fred Shingara had a small coal mine 

which they alone operated. Ed went underground and Fred operated a hoist. 

They produced only 10,000 tons of coal per year which was sold to a company which ground up the Shingara's coal and shipped it with other coal in 

interstate commerce. The court held that the Shingaras were subject to 

the Act and noted that the term "affecting commerce" used in the Act was 

employed by Congress when it wanted ~o achieve the farthest reach of the 

commerce clause. 

In this proceeding, respondent removes coal after he has removed 

earth and rocks to prepare a site for construction by other parties. 

According to information in the official file, respondent sells about 

12,500 tons of coal on an annual basis which is a larger tonnage than that 

involved in the Shingara case, supra, but even if respondent removed much 

less coal than 12,500 tons per year and even if respondent did not sell 

the coal to persons outside the state of Virginia where the coal is produced, his operations would be subject to the jurisdiction of the Act and 

the regulations promulgated thereunder because respondent's operations 

would have an effect on interstate commerce. 

Now that respondent's jurisdictional arguments have been considered, 

further attention may be given to the motion for approval of settlemento 

Section llO(i) of the Act lists six criteria which are required to be used 

in determining civil penalties. As to the criterion of the size of respondent's business, the proposed assessment sheet attached to the motion 

shows that respondent produces only about 12,500 tons of coal on. an annu.al 

basis. That volume of coal supports a finding that respondent operates a 

very small coal mine. Under the penalty formula described in 30 C.F.R. 

§ 100.3 which was in effect prior to May 21, 1982, when the violations 

involved in this proceeding were being considered, the Assessment Office 

assigned no penalty points under the criterion of the size of respondent's 

business: 

1556 
As to the criterion of respondent's history of previous violations, 

the motion for approval of settlement states that respondent has no history 

of previous violations and the Assessment Office assigned no penalty points 

under that criterion under section 100.3(c). As to the criterion of whether 

the payment of penalties will cause respondent to discontinue in business, 

the motion for approval of settlement states that payment of the settlement 

penalties agreed upon by the parties will not adversely affect respondent's 

ability to continue in business. 

The remaining three criteria of negligence, gravity, and respondent's 

demonstrated good faith in achieving rapid compliance will be discussed in 

connection with the violations alleged in this proceeding. The five violations are all related to the paper work associated with opening and operating a coal mine. Citation No. 686584 alleged a violation of 30 C.F.R. § 

41.20 because respondent had not filed a notification of legal identity 

with MSHA. Citation No. 686585 alleged a violation of section 77.1000-1 because respondent failed to file a ground-control plan. Citation No. 686586 

alleged a violation of section 77.107-1 because respondent failed to file a 

plan regarding the training and retraining of certified or qualified personnel. Citation No. 686587 alleged a violation of section 77.1702(c) because respondent had failed to make arrangements for obtaining emergency 

medical assistanceo Citation No. 686588 alleged a violation of section 

48.23(a)(l) because respondent had not filed a training for new miners 

or for retraining of experienced miners. A withdrawal order was issued 

with respect to each of the five citations described above when respondent 

failed to file the required reports .pr plans. The Assessment Office considered all of the alleged violations, except failure to arrange for emergency medical assistance, to have been nonserious, to have been associated 

with a high degree of ordinary negligence, to have shown a lack of good 

faith in achieving compliance, and proposed a penalty of $60 for the first 

three violations described above, $66 for the fourth violation, and $48 

for the fifth violation. 

The motion for approval of settlement states that the proposed penalties should be reduced to half of the amounts proposed by the Assessment 

Office. In support of the reductions, the motion avers that the operator's 

failure to comply with the cited standards did not in and of itself create 

any safety or health hazards, that the violations were essentially bookkeeping oversights, that respondent was working by himself and honestly 

believed that the unique activities he was performing exempted him from 

the provisions of the Act and regulations, and that respondent's attitude 

was not wholly unreasonable when it is considered that several of the 

plans he was required to file referred to training of employees whom he 

had not hired and did not plan to hire. 

I find that the motion for approval of settlement has given adequate 

reasons for approving the parties' settlement agreement under which respondent would pay half of the penalties proposed by the Assessment Office. 

It should be noted that an amount of $20 of each of the penalties proposed by the Assessment Office was assigned to the penalties under the criterion of respondent's lack of good faith in failing to file the required 

1557 
reports and plans. It should be observed, however, that respondent did 

submit all of the required reports and plans within 5 or 6 days after 

the citations were written. Respondent was convinced clear up to the 

time that he filed his answer on September 21, 1981, in this proceeding 

that he was not subject to the jurisdiction of the Act. Since respondent, 

in good faith, believed that he was on sound legal ground in refusing 

initially to file the required reports and plans, a fair evaluation of 

the basis for his action justifies a reduction in the penalties under the 

criterion of respondentts good faith in achieving compliance. 

The same type of consideration is warranted with respect to the criterion of negligence which accounts for nearly all of the remaining portion 

of the penalties proposed by the Assessment Officeo A respondent should 

not be given a high penalty under the criterion of negligence when the facts 

show that the failure to file the reports and plans is attributable to an 

honest conviction that the Act does not apply to the operations of a single 

person who is scooping up coal from sites prepared for construction projectso 

WHEREFORE, for the reasons given above~ it is ordered: 

(A) The motion for approval of settlement is granted and the settlement agreement is approved. 

(B) Pursuant to the settlement agreement~ respondent~ within 30 days 

from the date of this decision, shall pay civil penalties totaling $147a00 

which are allocated to the respective alleged violations as follows: ~ 

Citation No. 686584 4/15/81 § 41.20 . ................... $ 30.00 

Citation No. 686585 4/15/81 § 77.1000-1 . ............... 30.00 

Citation No. 686586 4/15/81 § 77.107-1 . ................ 30.00 

Citation No. 686587 4/15/81 § 77.1702(c) . .............. 33.00 

Citation No. 686588 4/15/81 § 48.23(a)(l) • ••••• 0 ••••••• 24.00 

Total Settlement Penalties in This Proceeding •••••••••• $147.00 

Distribution: 

Richard ~(!-~ C. Steffey ~~ ~ 

Administrative Law Judge 

(Phone: 703-756-6225) 

David T. Bush, Esq., Office of the Solicitor, U. S. Department of 

Labor, Room 14480-Gateway Bldg., 3535 Market Street, Philadelphia, 

PA 19104 (Certified Mail) 

Mr. Billy Ray Masters, P. o. Box 672, Wise, VA 24293 (Certified 

Mail) 

1558 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 AUu 181982 

CONSOLIDATION COAL COMPANY§ 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

SECRETARY OF LABORr 

MINE SAFETY AND HEADTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

CONTESTS OF CITATIONS 

Docket No. WEVA 82-84-R 

Citation No. 861816? 10/19/81 

Four States No. 20 Mine 

Docket No. WEVA 82-140-R 

Citation No. 864582; 1/6/82 

Humphrey No. 7 Mine 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 82-186 

A.C. No. 46-01431-03103 

Four States No. 20 Mine 

Docket No. WEVA 82-246 

A.C. No. 46-01453-03151 

Humphrey No. 7 Mine 

Appearances: Robert M. Vukas, Esq., Pittsburgh, Pennsylvania, 

for Consolidation Coal Company; 

Before: 

Aaron M. Smith, Esq., Of ce of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary of Labor. 

Judge Melick 

These consolidated cases are before me pursuant to 

sections 105(a) and 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act", to 

contest two citations issued to the Consolidation Coal 

Company (Consol) pursuant to section 104(a) of the Act and 

for review of civil penalt s proposed by the Mine Safety 

1559 
and Health Administration (MSHA), for those citations. The 

general issues before me are whether Consol violated the 

regulatory standard at 30 C.F.R. § 70.lOO(a) as alleged in 

the citations and, if so, whether those violations are 

"significant and substantial." Appropriate civil penalties 

must also be assessed for any violations found. Evidentiary 

hearings were held on these issues in Wheeling, West Virginia 

on June 29, 1982. 

The cited regulatory standard, 30 C.F.R. § 70.lOO(a), 

provides as follows: 

Each operator shall continuously maintain the 

average concentration of respirab dust in the 

mine atmosphere during each shift to which each 

miner in the active workings of each mine is 

exposed at or below 2.0 milligrams of respirab 

dust per cubic meter of air as measured with an 

approved sampling device and in terms of an 

equivalent concentration determined in accordance 

with § 70.206 (Approved sampling devices; equivalent 

concentrations). 

Citation Noo 861816 reads as follows~ 

Based on the results of 5 samples collected 

by the operator on the designated occupation, 044, 

shear operator, on the mechanized mining unit I.D. 

No. 041-0 and indicated on advisory No. 0022 dated 

October 7, 1981, ·the average concentrations of 

respirable dust was 2.5 mg/m3. The operator shall 

take corrective action at once and then sample 

each production shift - 5 valid samples of respirable 

dust are taken as required under Section 70.20l(d). 

Citation No. 864582 reads as follows: 

Based on the results of 5 samples collected 

by the operator on the designated occupation, 036, 

continuous miner operator on the mechanized mining 

unit ID No. 020-0 and indicated on Advisory No. 

0056 dated December 28, 1981, the average concentration of respirable dust was 2.7 mg/m3. The 

operator shall take corrective action at once and 

then sample each production shift until 5 valid 

samples are taken as required under Section 

70.20l(d). 

1560 
At hearing the operator admitted that it was in violation 

of the cited standard as charged and argued only that the 

violations were not "significant and substantial." In 

determining whether the violations were "significant and 

substantial", I must consider whether these violations could 

be a major cause of a danger to safety or health and whether 

there existed a reasonable likelihood that the hazard contributed to would result.in an injury or illness of a 

reasonably serious nature. Secretary of Labor v. Cement 

Division, National G sum Company, 3 FMSHRC 822 (1981). 

The test essential y involves two considerations, (1) the 

probability of resulting injury or illness and (2) the 

seriousness of the resulting injury or illness. 

In this case MSHA inspector Barry Ryan, a college graduate 

in business administration and mining engineering but with 

no medical expertise, testified that exposure to any level 

of respirable dust would at some point in time result in the 

permanently disabling condition known as pneurnoconiosis. He 

admitted that this was a personal opinion and that he had no 

facts to support it. Moreover Ryan was unable to testify as 

to the length of exposure at the levels of respirable dust 

such as cited here that would result in pneurnoconiosis. He 

admitted that the subject had never been studied ly and 

accordingly he did not "believe anybody would attempt to 

make a guess on that." He further admitted that he was 

relying in his testimony and opinions about the correlation 

between respirable dust and pneumoconiosis upon some unidentified scientific studies performed in Great Britain relating 

to the medical effects of quartz-bearing dust. He was 

unable to identify the name or author of those studies and 

counsel for the Secretary conceded that the studies were in 

any event not relevant. 

In the absence of any medical, scientific evidence 

correlating the exposure of miners to the level of respirable 

dust found in these cases to the medical condition known as 

pneumoconiosis, I am unable to assess the probability of the 

alleged resulting condition. This is not to say that such a 

correlation cannot be established with the proper evidence. 

My determination in is limited to the credible evidence 

presented in these cases. Accordingly, I do not find that 

the Secretary has sustained his burden of proving that the 

violations were "significant and substantial." 

1561 
Applying the same analysis I find that the Secretary 

has failed to establish that the violations were serious. 

However in light of repeated past violations of the standard 

here cited (two such violations at the Four States No. 20 

Mine and five such violations at the Humphrey No. 7 Mine 

during the 24-month period preceding the issuance of the 

corresponding citations} I find that the operator failed to 

exercise reasonable care in preventing or correcting the 

violative conditions ·it should have known existed. Accordingly 

I find that the operator was negligent. Considering these 

factors in conjunction with the evidence that the operator 

is large in size, and that it apparently corrected the cited 

conditions in a timely manner leads me to the conclusion 

that the following penalties are appropriate~ Citation No. 

861816 (Four States No. 20 Mine) $75 1 Citation No. 864582 

(Humphrey No. 7 Mine) $150. 

ORDER 

Citation Nos. 861816 and 864582 are affirmed, however 

the "significant and substantial" findings made therein are 

hereby stricken. The Consolidation Coal Company ORDERED 

to pay civil penalties totalling $225 fof. the cited violations 

within 30 days of the date of this decis~on. 

Gary elick :i 

Assis ant Chj;ef 

I 

L 

Distribution: By certified maiJl/ 

Robert M. Vukas, Esq., Consolida' ion Coal Company, 

Plaza, 1800 Washington Road, Pit sburgh, PA 15241 

Law Judge 

Consol 

Aaron M. Smith, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 

Harrison B. Combs, Jr., Esq., United Mine Workers of America, 

900 15th Street, N.W., Washington, DC 20005 

1562 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

AUG 18 \982 5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

REPUBLIC STEEL CORPORATION, 

Contestant-Respondent 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent-Petitioner 

Contest of Citation 

Docket No. PENN 81-llS~R 

Citation No. 1046699; 3/10/81 

Civil Penalty Proceeding 

Docket No. PENN 81-177 

A/O No. 36-00973-03079F 

Banning Mine 

DECISION AND ORDER 

On March 10, 1981, a shuttle car operator was killed due to the 

inadequacy of the field of vision provided under the protective canopy 

installed on his equipment. Because of the inadequacy of the field of 

vision, the miner stuck his head out around the canopy in order to see 

to position the mine cars he was loading. When the car spotter failed 

to function properly, the mine cars caught the shuttle car boom and 

swung the car in such a way that the miner's head was crushed against a 

post. The parties move to reduce the amount of the penalty initially 

proposed from $6,000 to $500 on the ground that the canopy was adequate 

to protect the miner from falls of t~e roof or rib which, they claim, is 

all the standard required. 

I think the facts of this case demonstrate what I have been 

inveighing against for years with respect to canopies, namely that 

MSHA's failure to require the installation of canopies that provide a 

field of vision adequate to permit their safe use in the performance of 

a job renders many if not most 11 approved11 canopies accidents waiting to 

happen. Despite this, MSHA is insistent on requiring canopies wherever 

the mining height permits, regardless of the hazards created by their 

use where the mining height does not permit an adequate field of vision. 

In this case, after the fatality MSHA and the operator tried to cure the 

hazard by painting stripes on the sides of the mine cars but made no 

adjustment in the canopy. Thus, any time a string of cars that are not 

painted comes along the same accident may occur. In my judgment if a 

canopy cannot be provided that permits the operator an adequate field of 

vision to perform his tasks safely, it should be removed and not required. 

For these reasons, as well as MSHA's admission that "the canopy was 

totally adequate for normal operation of the shuttle car," l./ I find the 

violation charged did not, in fact, occur. 

1./ Where the facts so dramatically and fatally demonstrate that the 

canopy was not adequate to permit safe operation of the shuttle car, I 

find this view of the canopy requirement so at war with the safe operation 

of haulage equipment as to be breathtaking. 

1563 
Accordingly, it is ORDERED that th motion to approve settlement 

be, and hereby is, DENIED and the matter DISMISSED. 

Judge 

Distribution: 

B. K. Taoras, Esq., Republic Steel Corporation, Law Department, 

P.O. Box 500, Meadowlands, PA 15347 (Certified Hail) 

David Street, Esq., Office of the Solicitor, U.S. Department of 

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

1564 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 f'tUG 18 \98'l 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

CIVIL PENALTY PROCEEDING 

Petitioner 

V. 

ISLAND CREEK COAL COMPANYu 

Respondent 

Docket No. WEVA 80-72 

A.C. No. 46-01459-03053 

Birch No. 2-A Mine 

DECISION AND ORDER APPROVING SETTLEMENT 

This case is before me upon a petition for assessment 

of civil penalty under Section llO(a) of the Federal Mine 

Safety and Health Act of 1977 (the Act) a Petitioner has 

led a motion to approve a settlement agreement and to 

dismiss the case. A reduction in penalty from $610 to 

$ 200is proposed. I have considered the representations 

and documentation submitted in this case, and I conclude 

that the prof erred settlement is appropriate under the 

criteria set forth in Section llO(i) of the Act. 

WHEREFORE, the motion for approv'l of settlement is 

GRANTED, and it is ORDERED that Respo' dent pay a penalty of 

$200 within 30 days ocf :h~; //order. I ( 1 

Ga'r;M n?k 'v~ I - Lt (:'.\_ ~ Distribution: ;.,!;sis/ iit Chi(j, Administrative Law Judge 

Marshall Pease, Island Cr.0 Coal\_ ompany, P.O. Box 11430, 

Lexington, KY 40575 I 

Leo J. McGinn, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

1565 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 AUG 18191l 

ISLAND CREEK COAL COMPANY, 

Contestant 

CONTESTS OF CITATIONS 

v. Docket No. WEVA 79-183-R 

Citation No. 635499; 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) / 

5/7 /79 

Docket No. WEVA 79-184-R; 

Citation No. 6355001 

5/7/79 

Respondent 

Birch 2A Mine 

ORDER OF DISMISSAL 

In light of the settlement agreement recently approved 

by the undersigned in Secretary v. Island Creek Coal Co. / 

Docket No. WEVA 80-72 (Citation Nos. 635499 and 635500), it 

appears that the Contests herein of t e same citations have 

been rendered moot. These cases are herefore dismissed. 

Gary\;;:' (~V\, \ /~,t\'c L(_ 

Assistant: hief A~ministrative Law Judge 

. i \ 

Distribution: By certified ma'l. 

i \ 

William Bodell II, Esq., Islan~! Creek Coal Company, P.O. Box 

11430, Lexington, KY 40575 \.• i.,/ 

Ann S. Rosenthal, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 

1566 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 19 \98l 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket Nos. Assessment Control 

Petitioner 

KENT 82-57 15-05209-03019 

v. KENT 82-70 15-05209-03021 

KENT 82-120 15-05209-03022 

MITCH COAL COMPANY, INC., 

Respondent No. 4E Mine 

DEFAULT DECISION 

Nos. 

Counsel for the Secretary of Labor filed proposals for assessment of 

civil penalty in Docket Nos. KENT 82-57, KENT 82-70, and KENT 82-120 on 

March 5, 1982, April 22, 1982, and July 6, 1982, respectively. Respondent 

did not file answers to the proposals for assessment of civil penalty within 

the time required by section 2700.28 of the CoUilllission's procedural rules, 

29 C.F.R. § 2700.28. A show-cause order was issued on June 1, 1982, in 

Docket No. KENT 82-57 asking respondent to explain in writing why it should 

not be held in default for failure to file an answer. Respondent has not 

filed a reply to the show-cause order. 

A prehearing order was issued on March 16, 1982, in three related cases 

in Docket Nos. KENT 82-15, KENT 82-26, and KENT 82-40 in which respondent 

had answered show-cause orders. Counsel for the Secretary thereafter filed 

on June 2, 1982, a motion requesting that the proposals for assessment of 

civil penalty in Docket Nos. KENT 82-57 and KENT 82-70 be consolidated for 

settlement negotiations so that, if a settlement could be achieved, all 

cases could be settled in a consolidated proceeding and, of course, if they 

could not be settled, all issues could be considered at a hearing to be held 

in all of the interrelated proceedings. An order was issued on June 15, 

1982, granting the motion for consolidation. The order granting the motion 

for consolidation advised respondent that the consolidation did not excuse 

it from filing an answer to the show-cause order issued in Docket No. KENT 

82-57 and advised it that an additional show-cause order would be issued in 

Docket No. KENT 82-70 if respondent did not soon answer the proposal for 

assessment of civil penalty which had been filed in that docket. 

When respondent failed to file an answer to the proposal for assessment 

of civil penalty within the time required by section 2700.28, a show-cause 

order was issued on June 24, 1982, in Docket No. KENT 82-70 requiring respondent to explain in writing why it should not be found to be in default 

for failing to file an answer to the proposal for assessment of civil penalty filed in Docket No. KENT 82-70. No answer to that show-cause order has 

been filed by respondent. 

156'( 
A notice of hearing was issued on July 2, 1982, providing for a hearing 

to be held on August 26, 1982, in all of the cases hereinbefore mentioned. 

Subsequently, a sixth civil penalty case in Docket No. KENT 82-120, naming 

Mitch Coal Company, Inc., as the respondent, was assigned to me. A further 

order of consolidation was issued on July 22, 1982, providing for the hearing in the sixth case to be held in the same proceeding in which a hearing 

had been scheduled for the other five cases hereinbefore described. 

The order of July 22, 1982, provided in paragraph (B) that respondent's 

right to a hearing in Do~ket Nos. KENT 82-57, KENT 82-70, and KENT 82-120 

was subject to respondent's filing satisfactory answers to the show-cause 

orders issued in Docket Nos. KENT 82-57 and KENT 82-70 and to respondent's 

filing an answer to the proposal for assessment of civil penalty in Docket 

No. KENT 82-120. The body of the order and paragraph (C) of the order 

specifically warned respondent that it would be held in default and would 

be deprived of a hearing in Docket Nos, KENT 82-57, KENT 82-70, and KENT 

82-120 if it failed to file answers to the show-cause orders issued in Docket Nos, KENT 82-57 and KENT 82-70 and failed to file an answer to showcause paragraph (C) of the order of July 22, 1982, with respect to Docket 

No. KENT 82-120. There are return receipts in the official files showing 

that respondent received all of the show-cause orders and the other orders 

described in this decision. Respondent has, however, failed to reply to 

the prehearing order issued in this proceeding and has failed to reply to 

any of the show-cause orders or to the order of July 22, 1982. 

The provisions of section 2700.63(a), which require that a show-cause 

order be issued before a party is found to be in default for failure to 

comply with a judge's order, have been followed. Respondent has received 

at least four different orders warning it that it would be held in default 

for failure to file answers to the orders issued in these proceedings, but 

no answer has been received. Therefore, I find respondent to be in default 

for failure to reply to the show-cause orders and to the order of July 22, 

1982. Section 2700.63(b) provides that "[w]hen the Judge finds the respondent in default in a civil penalty proceeding, the Judge shall also enter a 

summary order assessing the proposed penalties as final, and directing that 

such penalties be paid." 

WHEREFORE, it is ordered: 

(A) The issues raised by the proposals for assessment of civil penalty 

filed in Docket Nos. KENT 82-57, KENT 82-70, and KENT 82-120 are severed 

from the issues raised by the proposals for assessment of civil penalty filed 

in Docket Nos. KENT 82-15, KENT 82-26, and KENT 82-40 and the hearing now 

scheduled to be held on August 26, 1982, in Docket Nos. KENT 82-15, KENT 

82-26, and KENT 82-40 will be held in the last-named three doc~ets as previously scheduled by the notice of hearing issued July 2, 1982. 

(B) Pursuant to section 2700.63(b) of the Commission's rules, respondent, having been found to be in default with respect to the proposals for 

1568 
assessment of civil penalty filed in Docket Nos. KENT 82-57, KENT 82-70, and 

KENT 82-120, shall, within 30 days from the date of this decision, pay civil 

penalties totaling $476.00 which are allocated to the respective violations 

as follows: 

Docket No. KENT 82-57 

Citation No. 950085 6/29/81 § 70.508 ...........•......... $ 66.00 

Citation No. 963081 10/15/81 § 70.208(a) . . . . . . . . . . . . . . . .. 40.00 

Total Civil Penalties in Docket No. KENT 82-57 $106.00 

Docket No. KENT 82-70 

Citation No. 961970 12/30/81 § 70.208(a) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 $ 26.00 

Citation No. 962524 12/30/81 § 75.400 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 140.00 

Citation No. 962525 12/31/81 § 75.403 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 26.00 

Citation No. 962526 12/31/81 § 75.1306 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 60.00 

Citation No. 1196212 1/ 14/82 § 70.207(a) 0 0 0 0 0 0 D 0 0 0 0 0 0 0 0 0 0 52.00 

Total Civil Penalties in Docket No. KENT 82-70 $304.00 

Docket No. KENT 82-120 

Citation No. 962527 1/8/82 § 75.316 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 $ 26.00 

Citation No. 962538 2/12/82 § 70.208(a) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 40.00 

Total Civil Penalties in Docket No. KENT 82-120 .......... 0 $ 66.00 

Total Civil Penalties in This Proceeding ................. $476.00 

~C.~Wr 

Distribution: 

Richard C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

Thomas A. Grooms, Esq., Office of the Solicitor, U. S. Department of 

Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Mr. Grover Sammons, Mitch Coal Company, Inc., P. 0. Box 12, Minnie, 

KY 41651 (Certified Mail) 

156B 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DOAN COAL COMPANY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil Penalty Proceeding 

Docket No. PENN 82-31 

A.O. No. 36-02695-03011 

Doan Strip Mine 

DECISION 

Appearances: Robert Cohen, Attorney, U.S. Department of Labor, 

Arlington, Virginia, for the petitioner; Robert M. Hanak. 

Esquire, Reynoldsville, Pennsylvania, for the respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding was docketed for hearing in Pittsburgh, Pennsylvania, 

July 1, 1982, and the case was called after the completion of the hearings 

in MSHA v. Doan Coal Company, and Austin Powder Company, Dockets PENN 82-33 

and PENN 82-63. The parties proposed a settlement disposing of the two 

citations in issue and they were afforded an opportunity to present 

arguments in support of their joint proposal. The citations in question 

are as follows: 

Citation No. 

1041336 

1041337 

Date 

8/27/81 

8/31/81 

30 CFR Section 

77. 410 

77.410 

Discussion 

Assessment 

$ 26 

26 

Settlement 

$ 20 

20 

Both citations concern the lack of operable reverse warning 

devices on an endloader and bulldozer working in the mine pit area. 

Petitioner asserted that both citations were nonserious in that the 

citations did not result in any lost time injuries or accidents. One 

person may have been exposed to a hazard, but any injury was improbable. The 

bulldozer was operating in an isolated and remote area of the mine. 

1570 
Petitioner asserted that the respondent took immediate action to 

repair the back-up alarms in question and exercised good faith abatement 

in this The equipment was also immediately shut down when the 

conditions were cited. 

Petitioner stated that the respondent should have been aware of the 

fact that the alarms were inoperable when the equipment in question was 

operated in reverse, and that its failure in this regard constitutes 

ordinary negligence. 

With regard to the questions concerning the size of business and 

history of prior violations, the parties agreed that the evidence adduced 

in the prior case, PENN 82-33, regarding these issues are also applicable 

in this case. That evidence reflects that respondent is a small strip 

mine operator, with a total employment of approximately 40 individuals, 

and an annual production of approximately 150,000 tons. Respondent 0 s 

history of prior citations reflects 40 paid assessments for citations 

issued the period 1970 to 1981. 

Findings and Conclusions 

admits to the violations cited in the two citations 

issued in this case. Accordingly, they are AFFIRMED. In addition, I 

find that the citations were nonserious, that they resulted from ordinary 

~~cu.~c, and that the conditions cited were abated in good faith. I 

also conclude that respondent has a good safety record and that its 

history of violations is not such as to warrant any increase in 

the penalties assessed in this case. 

Respondent stipulated that the penalties assessed for the citations 

in question will not adversely affect its ability to continue in business 

(Tr. S), and I adopt this as my finding on this issue. 

ORDER 

In view of the foregoing discussion, findings and conclusions, I 

find that the settlement proposed by the parties in this case is reasonable 

and in the public interest. Accordingly, pursuant to 29 CFR 2700.30, it 

is APPROVED, and the respondent IS ORDERED to pay the civil penalties in 

the settlement amounts shown above within thirty (30) days of the date of 

this decision. Upon receipt of payment by the petitioner, this case is 

DISMISSED. 

/~~.air~ ~~inistrative Law Judge 

Distribution: 

Robert M. Hanak, ., 311 Main St., Box 250, Reynoldsville, PA 15851 

(Certified Mail) 

Robert Cohen, ., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

1571 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 AUG 201982 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOtl, 

MINE SAFETY Al.\JD HEALTtl 

ADMINISTRTATION (L'!SHA), 

Petitioner 

Vo 

CONSOLlUATION COAL CQriPANY ~ 

Kespondent 

DECISION 

CONTEST OF ORDER 

Docket No. WEVA 82-134-R 

Citation No. 862499; 

12/14/81 

CIVIL PENALTY PROCEEDING 

Docket No. IJEVA 82-271 

A.C. No. 46-01453-03153 

Humphrey No. 7 Mine 

Appearances: Robert M. Vukas, Esq., Pittsburgh, Pennsylvania for 

Consolidation Coal Company; 

Before: 

Aaron Smith, Esq., Office of the Solicitor, Philadelphia, 

Pennsylvania, for the Secretary of Labor. 

Judge Melick 

These consolidated cases are before me pursuant to sections 105(a) 

and 105(d) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

801 et~·, the "Act, 11 to contest an order of withdrawal issued to the 

Consolidation Coal Company (Consol) pursuant to section 104(d)(l) of 

the Act ];./ and for review of a civil penalty proposed by the Hine Safety 

1/ Section 104(d)(l) reads as follows: "If, upon any inspection of· a coal 

or other mine, an authorized representative of the Secretary finds that 

there nas been a violation of any mandatory nealth or safety standard, and 

it he also finds that, while tl1e conditions created by such violations 

do not cause imminent dar;ger, such violation is of such nature as could 

1572 
and Health Administration (MSHA), for the violation charged in that order. 

Since there is no dispute that a valid precedential section 104(d)(l) citation was issued within 90 days before tne Oraer at bar, the general issues 

before me are limited to whether Consol violated the regulatory standard at 

30 CFK § 75.403 as alleged in Order No. 862499 and, if so, whether the violation was caused by the "unwarrantable failure" of .the operator to comply with 

the cited standard. Note ]:/ An appropriate civil penalty must also 

be assessed if a violation is found and a determination must be made as to 

whether that violation was "significant and substantial." Evidentiary hearings on these issues were held in Wheeling, West Virginia, on June 29, 1982. 

The sub t order, issued by MSHA inspector Paul Mitchell on December 14, 1981, reads as follows: 

The number three entry of the 4-East (041) section is 

not adequately rock dusted (also cross cuts), in that black 

coal dust, loose coal, and float coal dust is on the floor 

with no rock dust starting 6 feet outby stations spad noo 

8606 for a distance of approximately 500 feet in length and 

35 feet outby spad S.T.A.T. 9122 where power cables (miner 

and loader cables) are piled. This area was examined by 

Terry Honas (section foreman) and t1e said that he was looking up. In the Number 3 entry of the 4-East section, there 

were 3 samples taKen of this area. 

The cited regulatory standard, 3U CFR § 75.403 provides in relevant part 

as follows: 

Where rock dust is required to be applied, it 

shall be distributed upon the top, floor, and sides 

of all underground areas of a coal mine and maintained 

in such quantities that the incombustible content of 

the combined coal dust, rock dust, and other dust shall 

be not less than 65 percentum * * * 

fn. 1 (continued) 

significantly and substantially contribute to the cause and effect of a 

coal or other mine safety or health hazard, and if he finds such violation 

to be caused by an unwarrantable failure of such operator to comply with 

such mandatory health or safety standards, he shall include such finding 

in any citation given to the operator under this Act. If, during the 

same inspection or any subsequent inspection of such mine within 90 days 

after the issuance of such citation, an authorized representative of the 

Secretary finds another violation of any mandatory health or safety standard 

and finds such violation to be also caused by an unwarrantable failure of 

such operator to so comply, he shall forthwith issue an order requiring 

the operator to cause all persons in the area affected by such violation, 

except those persons referred to in subsecti.on (c) to be withdrawn from, 

and to be prohibited from entering, such area until an authorized representative of the Secretary determines that such violation has been abated.'' 

1573 
During the course of a regular inspection of the Humphrey No. 7 Mine on 

December 14, 1981, inspector Mitchell discovered an area in the No. 3 entry 

of the 4-East section with what appeared to be inadequate rock dusting. 

According to Hitchell, 500 feet of the floor of the 14- to 16-foot wide entry 

consisted of "pure coal". It contained black coal dust, loose coal, and float 

coal dust. As a result of these observations Mitchell collected three samples 

from the mine floor and sent them to the MSHA laboratory for analysis. The 

first sample was taken at the entry, the second sample 100 feet further down, 

and the third sample another 100 feet further down. 

~ldon Haggerdorn, the general mine foreman, watched as Mitchell took his 

samples. Haggerdorn admitted that Mitchell obtained the samples across the 

width of the mine floor fiom rib to rib. The sampling technique, the chain 

of custody of the samples, and the analysis of the samples are not in disputeo 

The test results were as follows: Sample No. 1, 54% incombustible material~ 

Sample No. 2, 37% incombustible material, and Sample No. 3, 32% incombustible 

material. Since tne incombustible content of the samples was well below the 

6~ percentum required by the cited standard, it appears that the standard has 

been violated as charged. 

Consol nevertheless attempts to defend on the grounds that the samples 

taken by Mitchell were not representative of the "average" conditions in the 

cited area. In evaluating this contention, I am mindful of the absence of 

any evidence that such complaints were made at the tline Mitchell was collecting his samples. In any event, I find the proferred defense to be less than 

convincing. Even assuming, arguendo, that the "average 11 conditions of the 

mine floor were in compliance with the cited standard, that of course does 

not preclude the existence of the cited violation. I observe, moreover, that 

even Consol's section foreman, Terry Monas, conceded that when he "firebossed" 

the cited area at 8:40 that morning there were "a few bad places" where coal 

had sloughed off the ribs at the corners. He further recognized that conditions were "bad" in the area being set up for long wall operations. Shortly 

before the inspection, his men were setting up pan liners with the aid of 

a scoop. Monas conceded that the floor was "pretty well torn up" by the 

operation of the scoop. 

In furtherance of its defense, Consol produced at hearing several samples purportedly taken from the cited mine floor. The samples were obtained 

out of the presence of Inspector Mitchell, suffered certain custodial deficiencies, and were not suojected to laboratory analysis for incombustibility. 

In any event, regardless of these potential deficiencies and regardless of 

the appearance of the samples, that evidence would not of course preclude 

the existence of the cited violation. Under all the circumstances, I find 

that the cited violation is proven as charged. 

Whether that violation was "significant and substantial" depends on 

whether, based on the particular facts surrounding the violation, there 

existed a reasonable likelihood that the hazard contributed to would have 

resulted in an injury of a reasonably serious nature. Secretary v. Cement 
Division, National Gypsum Company, 3 FJ:vlSHJ:lC 822 at 825. The test essentially involves two considerations, (1) the probability of resulting injury, 

and (2) the seriousness of the resulting injury. In this case, it is not 

disputed that within the cited area, a panline was being set up for the longwall system. A battery powered scoop was also operating in the area, crushing the coal on the mine floor into a fine powder. According to Inspector 

Mitchell, these conditions were particularly dangerous since the longwall 

system was being erected over that loose material. It may reasonably be 

inferred that miners would be working with cutting and welding torches on the 

longwall system which could result in undetected fire. The dryness of the 

floor would have, according to Mitchell, contributed to the hazard of fire 

or explosion. While there is no dispute that there were no immediate ignition sources found when the order herein was issued and that regulations require the presence of fire extinguishers, water, and rock dust when torches 

are being used, I nevertheless find on the basis of the aforesaid evidence 

the existence of a reasonable likelihood of fire or explosion resulting in 

serious injuries or fatalities. Accordingly, the violation is "significant 

and substantial." For the same reasons, I find a high degree of ty associated with the violation. 

Whether the instant violation was the result of the "unwarrantable failure11 of the operator to comply with tne standard depends on whether the violative condition was one which the operator knew or should have known existed, 

or which the operator failed to correct through indifference or lack of reason able care. Zeigler Coal Company, 7 IBM.A 2800 For the reasons that fol 

low, I find that d::irtt1. has sustained its ourden of proof in this regard. ~ll1ile 

it is true that union firebosses (who had presumably inspected the cited areas 

around 4 p.m. on the previous <lay and from 5:00 a.m. until 8:UO a.m. on the 

same day the order was issued) did not report the same conditions cited in the 

order by MSHA inspector ~litchell, it is apparent that conditions could have 

changed between the time of those inspections and the time of Mitchell's 

inspection around 10:25 that morning. Consol's section foreman, Terry Monas, 

also admitted that when he firebossed the cited area around 8:40 that morning, 

there were indeed 11 a few bad places" where coal had come off the ribso Monas 

further conceded that the area of floor where the pan liner was being set 

up was torn up from the operation of the scoop. The fact that Monas told 

inspector J:vlitchell that he had examined only the top conditions in the section 

also indicates that Monas was negligent in his inspection. Finally, I accept 

the credible testimony of inspector Mitchell that the floor conditions were 

obviously deficient because of the black coloration of the cited area. This 

testimony is corroborated by the lab results showing a significantly low 

incombustible content. Under all the circumstances, I am convinced that the 

section foremen knew or should have known of the violative condition. The 

violation was therefore the result of 11 unwarrantable failure". The above analysis also suggests that the operator was negligent in allowing these conditions 

to exist. 

The evidence shows that the operator abated the cited conditions in a 

timely manner. Ti1e operator is large in size and the mine at issue has a 

fairly substantial history of violations. Under all the circumstances, a 

civil penalty of ~4UO is appropriate. 

1575 
ORDER 

Order No. H62499 is affirmed and the 

t~o. WEVA 62-1J4-R) is dismissed. The 

pay a civil penalty of $400 30 

j 

Distribution: Hy certified mail. 

I 

test of that order (Docket 

dation Coal Company is ordered to 

the,Ji~s decision. 

dministrative ~e 

Robert M. Vukas, Esq., Consolidation Coal Company, Consol Plaza, Pittsburgh, 

PA 15241 

Aaran Smith, Esq., Office of the Solicitor, U.S. Department of Labor, Room 

14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104 

1576 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

AUG 2 31982 

SUNSHINE MINING COMPANY, ) CONTEST OF CITATION PROCEEDING 

Contestant, ) 

) DOCKET NO. WEST 81-197-RM 

v. ) 

) MINE: Sunshine 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

Respondent" ) 

) ~~~~~~~~~~~~~~~~~~-

) 

SECRETARY OF LABOR, MINE SAFETY AND ) CIVIL PENALTY PROCEEDING 

HEALTH ADMINISTRATION (MSHA), ) 

Petitioner, ) DOCKET NO. WEST 81-322-M 

) 

v. ) MINE: Sunshine 

) 

SUNSHINE MINING COMPANY, ) 

Respondent. ) 

~~~~~~~~~~~~~~~~~~-

Appearances: 

Daniel L. Poole, Esq. 

Elam, Burke, Evans, Boyd & Koontz 

Boise, Idaho 

) 

For Sunshine Mining Company 

Frederick W. Moncrief, Esq., Office of the Solicitor 

United States Department of Labor, Arlington, Virginia 

For the Secretary of Labor 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Mine Safety and Health 

Administration, (MSHA), charges Sunshine Mining Company, (Sunshine), with 

violating Section 103(a) of the Federal Mine Safety and Health Act, 30 

U.S.C. 801 ~seq (Supp Ill 1979). 

Section 103(a) of the Act, now codified at 30 U.S.C. 813(a), provides 

as follows: 

Sec, 103 (a) Authorized representatives of the 

Secretary or the Secretary of Health, Education, and 

Welfare shall make frequent inspections and investigations in coal or other mines each year for the purpose 

157'/ 
of (1) obtaining, utilizing, and disseminating information relating to health and safety conditions, 

the causes of accidents, and the causes of diseases 

and physical impairments originating in such mines, 

(2) gathering information with respect to mandatory 

health or safety standards, (3) determining whether an 

imminent danger exists, and (4) determining whether 

there is compliance with the mandatory health or 

safety standards or with any citation, order, or decision 

issued under this title or other requirements of this 

Act.. In carrying out the requirements of this subsection, no advance notice of an inspection shall be 

provided to any person, except that in carrying out the 

requirements of clauses (1) and (2) of this subsection 9 

the Secretary of Health, Education, and Welfare may 

give advance notice of inspections, In carrying out 

the requirements of clauses (3) and (4) of th subsection, the Secretary shall make inspections of each 

underground coal or other mine in its entirety at least 

four times a year, and of each surface coal or other 

mine in its entirety at least two times a year, The 

Secretary shall develop guidelines for additional inspections of mines based on criteria including, but not 

limited to, the hazards found in mines subject to this 

Act, and his experience under this Act and other health 

and safety laws, For the purpose of making any inspection or investigation under this Act, the Secretary, 

or the Secretary of Health, Education, and Welfare, with 

respect to fulfilling his responsibilities under this Act, 

or any authorized representative of the Secretary or the 

Secretary of Health, Education, and Welfare, shall have a 

right of entry to, upon, or through any coal or other mine, 

After notice to the parties a hearing on the merits was held in Coeur 

d'Alene, Idaho on September 22, 1981. 

The parties filed post trial briefs. 

ISSUE 

The issue is whether, during a PAR.!_/ investigation, the Secretary 

may conduct private interviews of Sunshine's workers on the company's 

property and the company's time. 

]} Program of Accident Reduction. 

1578 
SUMMARY OF THE EVIDENCE 

The evidence is uncontroverted. 

The acronym PAR designates a program sponsored and conducted by the 

Secretary of Labor. The PAR program seeks to reduce accidents in the 

mining industry. For an operator to be eligible for a PAR evaluation an 

audit must show that the operator's rate for injuries to its miners 

exceeds the national norm (Tr. 14, 15, 60, Pl). 

If the MSHA criteria dictates the selection of a mine operator then 

the company is contacted and advised of the program. When the Secretary 

undertakes his investigation special inspectors conduct an onsite study 

and interview management, supervisors, and workers (Tr. 104). The 

principle focus of PAR1 s attention is on the cause of accidents, rather 

than a physical inspection of the worksite (Tr. 2ls 32). The PAR 

investigators do not seek out violations. But they would issue an imminent 

danger citation the situation warranted (Tr. 48)0 After the completion 

of the study the company management receives the PAR teamis recommendations 

(Tr. 14-15). 

The sole point of contention here centers on MSHA 1 s insistence that 

the PAR investigators interview the company 1 s personnel on a one to one 

basis on the company time and on the company property (Tr. 20 75, 92 0 93 

138). MSHA's policy and guidelines require such a procedure (Tr. 20~ 75 

Sunshine objects to the private interviews. The company recognizes 

its prior safety record was inadequate, and it blames a lack of 

communication between labor and management for the situation (Tr. 141, 

142). To reverse its poor safety record Sunshine has recently encouraged 

direct and open communication between workers and management in safety 

matters (Tr. 162). As a result Sunshine finds its safety record improving 

and its absenteeism declining (Tr. 143-144). Sunshine feels that its plan 

of mutually responsive reaction and open connnunication cannot coexist with 

MSHA's private interview technique. Sunshine sees MSHA's approach as 

antagonistic and counterproductive (Tr. 162, 172). 

When Sunshine refused to allow such private interviews of its workers 

MSHA issued a citation for the violation of Section 103(a) of the Act (Tr. 

92-93, PS). A subsequent noncompliance order was issued (Tr. 95, P6). 

DISCUSSION 

At the outset it should be observed that if the Secretary has 

authority to conduct the private interviews as he seeks here then 

Sunshine's objections, no matter how well intended, must yield to the 

statutory mandate. The efficaciousness of the PAR program, a conclusion 

well documented here, is not an issue in this case (P9a, P9b). 

1579 
Section 103(a) of the Act authorizes the Secretary to conduct frequent 

inspections and investigations in coal and other mines. Further, the 

Secretary has the right of entry upon any such coal or other mine. 

The courts have on numerous occasions ruled that the scope of 

authority of an administrative agency is determimed by the applicable 

enabling leg lation, and not by the agency's own interpretation of its 

powers. Civil Aeronautics Board v. Delta Airlines, Inc., 367 U.S. 316, 81 

S. Ct. 1611, 6 L.Ed. 2d 869, (1961). Pentheny, Ltd v. Government of the 

Virgin Islands, 360 F. 2d 786, 790 (3rd Cir. 1966). 

MSHA considers the private interview to be the cornerstone of PAR. 

But the statute is devoio of any mention of terms which would connote that 

Congress was conferring authority for MSHA to conduct such interviews. 

Terms such as "question privately"~ "one on one questioning11 $ 11 private 

interview" or any phrase of similar import do not appear in the AcL 

By comparson Congress, in enacting the Occupational Safety and Health 

Act, 29 U.S.C. 651, et seq. seven years before the Mine Safety Act, 

specifically authorized private interviews. Section 8(a) of the OSH Act, 

[29 U.S.C. 657(a)] provides as follows: 

Sec. S(a) In order to carry out the 

Act, the Secretary, upon present 

dentials to the owner, operator, or 

is authorized -

purposes of this 

appropriate creagent in charge, 

(1) to enter without delay and at reasonable times 

any factory, plant, establishment, construction site, 

or other area, workplace or environment where work is 

performed by an employee of an employer; and 

(2) to inspect and investigate during regular working 

hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place 

of employment and all pertinent conditions, structures, 

machines, apparatus, devices, equipment, and materials 

therein, and to question privately any such employer, 

owner, operator, agent or employee. (Emphasis added). 

Where Congress intends to confer certain authority it says so. Alaska· 

Airlines v. Civil Aeronautics Board, 257 F. 2d 229 (D.C. Cir.)i Cert. 

denied 79 S. Ct, 120, [230-231], (1958). Trans-Pacific Frgt Con~ Japan 

v. Federal Maritime Board, 302 F. 2d 875, (D.C. Cir., 1962). 

The omission of the power to conduct private interviews is further 

heightened by the obvious parallel construction of the OSH Act and the Mine 

Safety Act. 

1580 
These citations should be vacated because no statutory authority 

exists authorizing the interviews the Secretary seeks. Accordingly, it is 

not necessary to consider Sunshine's additional contentions that such 

private interviews violate the Fourth Amendment to the United States 

Constitution, that MSHA cannot rescind Sunshine's safety policy when such 

action is not authorized by statute. And finally, that a PAR interview is 

within the purview of Section 103(f) [30 U.S.C. 813(f)]. 

SECRETARY'S CONTENTIONS 

The Secretary contends the Act authorizes the private interviews. 

And that Congress has approved PAR as a separate budget item. In addition, 

the Secretary asserts that Andrus v. Magma Copper Company, Civ 77-765, a 

United States District Court case in Arizona, clearly supports his view. 

The Secretary initially contends that the authority to conduct 

investigations is grounded in the mandate of Section 103(a): 

frequent inspections and investigations in coal or 

other mines each hear for the frequent inspections 

and investigations in coal or other mines each year 

for the purpose of (1) obtaining, utilizing, and disseminating information relating to health and safety 

conditions, causes of accidents, and the causes 

of diseases and physical impairments originating in 

such mines. (emphasis added). 

And the Secretary declares that in discharging these responsibilities, he is granted a right of access to mines subject to the Act 

which is superior to the operators' privacy interests. Donovan v. Dewey 

US , 69 L. Ed. 2d 262, 101 S. Ct. , 1981. 

The thrust of the Secretary's argument is misdirected. No one 

questions his right to conduct investigations and to gain access to mines. 

In fact, the authority to ,investigate appears in prior mining legislation. 

The Federal Metal and Nonmetalic Mine Safety Act (Metal Act), 30 U.S.C. 

721, et seq., as well as the Federal Coal Mine Health and Safety Act of 

1969, 30 U.S.C. 801 et seq (Coal Act) contain authority for the Secretary 1 s 

"investigation". Butthe legislative histories of the statutory 

predecessors and of this Act are. silent as to the precise meaning of the 

term. No legislative history supports the Secretary's argument that he may 

conduct private interviews on the company's time and premises. It is no 

doubt more convenient for the Secretary to conduct interviews in this 

fashion but mere convenience not the test of a statutory grant of 

authority. No one questions the Secretary's power to interview workers off 

of the company's premises. 

1581 
In the absence of statutory support and in the absence of any 

favorable legislative history I am unwilling to grant the Secretary the 

unfettered authority he seeks under the guise that he is conducting an 

"investigation." 

The Secretary's second contention is that PAR bears the Congressional 

budget's stamp of approval. Specifically, the Secretary states that PAR is 

a separate line item in the budget. The Secretary declares that the budget 

description contains a narrative discription of PAR -- its purpose, effect, 

and resource commitment. 

The Secretary's argument is not persuasive. There is no claim that 

the Congressional budget narrative recites that a portion of the funds are 

expended for private interviews of the nature requested here. The absence 

of that fact causes me to conclude that Congress did not approve, tacidly 

or otherwise~ the expenditure of funds for that purpose. Then it not 

necessary to consider the effect of a Congressional budget resolution. 

In support of his position the Secretary cites Andrus v. Magma Copper 

Company, Civ 77-765 Phx, an unpublished United States District Court case 

from the District of Arizona. (Coniplainant 1 s post trial brief). 

The history of the cited case: Cecil D. Andrus, the then Secretary of 

the Interior sued Magma Copper Company under the Federal Metal and 

Nonmetallic Mine Safety Act (1966 Act), 30 U.S.C. § 721-740. The original 

order of the Court and the subsequent contempt order were appended to the 

Secretary's post trial brief. 

On January 16, 1978 the original order was issued by the trial court. 

That order contains no reference to the right of PAR investigators to 

conduct private interviews on company time and the company premises. 

On August 2, 1978 the Court issued a two page order holding Magma 

Copper in contempt of Court for violating the prior injunction order. For 

the first time, in its order on the contempt proceedings, the Court refers 

to private interviews. The Court states: 

Defendant will permit its employees to be interviewed 

by agents conducting the PAR program outside the hearing 

and presence of other employees, agents or representatives 

of defendant. 

No rationale pertaining to private interviews appears in either order. 

Under these circumstances this Judge does not consider Andrus v. Magma 

Copper Company as persuasive or controlling authority. 
Based on the foregoing findings of fact and conclusions of law I enter 

the following: 

ORDER 

Citations 350724 and 350726 and all proposed penalties therefor are 

vacated. 

Distribution: 

Daniel L. Poole, Esq. 

Elam, Burke, Evans, Boyd & Koontz 

Bank of Idaho, Suite 1010 

P.O. Box 1559 

Boise, Idaho 83701 

Frederick W. Moncrief, Esq. 

Office of the Solicitor 

United States Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Judge 

1583 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 251 

UlHTED MINE HORKERS OF AMERICA, Complaint of Discharge, 

Discrimination, or Interference 

On Behalf of 

JEFFREY LY~~N SH·lNONS, 

Complainant 

v. 

SOUTliERN OHIO COAL COMPANY, 

Respondent 

Docket ~fo. LAKE 82-74-D 

DECISION 

Appearances: :Iary Lu Jordan, Esq. 9 Washington, D.C, 9 on behalf of 

Complainant; 

Before: 

D. Michael Miller, ., and Alvin J. HcKenna, 

Alexander, Ebin:;;er, Fisher, McAlister & Lawrence, 

Columbus, Ohio, on behalf of Respondent. 

Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

' , 

Complainant was discharged on December 31, 1981, from the position 

he had with Respondent as.a mechanic. He contends in this proceeding 

that his discharge resulted from his refusal to perform work, and that 

the refusal was protected under section 105(c) of the Federal Hine 

Safety and Health Act of 1977, 30 U.S.C. § 815(c). 

Pursuant to notice, the case was heard on the merits in Columbus, 

Ohio, on June 2, 1982. The Complainant, Jeffrey Lynn Simmons, testified on his own behalf. Roy Pierce, Michael Ryan, Arthur Fleischer, 

William Wooten, Rodney Butcher, Hichael Buskirk, Robert E. Davis,· Dan 

Silvers and David Baker testified on behalf of Respondent. 

Both parties have filed posthearing briefs. Based on the entire 

record, and considering the contentions of the parties, I make the 

following decision. 
FINDINGS OF FACT 

1. At all times pertinent to this proceeding, Respondent was the 

operator of the Meigs No. 1 Mine, located in Uilkesville, Ohio, the 

products of which mine enter interstate commerce. 

2. Complainant Lynn Simmons was employed by Respondent as 

a miner from October 6, 1980, until his discharge on December 31, 1981. 

3. Complainant worked for Simco Peabody Coal Company from 

January 1975 to August 1978. He first worked on the inside labor crew 

on a non production shift. His work included shovelling the belt line, 

rock dusting, setting concrete walls to control ventilation, and lubricating machinery, After about 1 year he became a belt mechanic. He 

received training in and has an electrical card, 

4, From Au~ust 1978 until 

Jeffrey /Dresser !·fining 

Service Technician, His duties 

defects in equipment sold 

incluried continuous miners. 

tions but occasionally on 

Complainant was hired 

June 1979, Complainant worked for 

as a Field Service Engineer or Field 

included assembling and 

to mine operators. This equ 

were usually done on idle secsec tions. 

as a mechanic. He worked 

originally in the "mule barn, 11 an 

transportation equipment. He received 

newly-employed experienced miner. 

16 

shop, where he 

hours of safety training as a 

6. On about 25, , he was transferred to the job of 

section mechanic. As such he was required to inspect and make necessary 

repairs on minint; equipment on the section, including the continuous 

miner, This work was usually performed at least one break outby the 

face, but on occnsion was at the face and on a few occasions 

required that Complainant stand beside the miner operator while the 

miner was cutting coal. 

7. Hhen Complainant was to the production section, the 

maintenance foreman, Dan Silvers, spent approximately 3 hours with him 

familiarizing him with the , maintenance schedules, safety 

cautions and the general environment of the underground section. This 

procedure is referred to as a contact. On October 16, 1981, 

Complainant received 8 hours of electrical retraining and on 

October 23, 1981, he received 8 hours of annual refresher in 

underground safety. 

3. On one occasion while on the section, Complainant told 

the maintenance foreman that he did not feel comfortable working under 

the head of a continuous miner. 

158b 
9. Michael Ryan, the assistant shift foreman on the shift on which 

Complainant worked, stated that Complainant had the reputation that when 

he did not want to do a task, he said he did not know how. 

10. When Complainant reported for work at midnight on December 31, 

1981, he was assigned to the 009 section under foreman Roy Pierce. 

Complainant had never worked on the section or under Mr. Pierce previously. The crew was short-handed and bad top was encountered at the 

beginning of the shift. This caused a delay in production until about 

4 or 4:30 a.m. The miner operator was off, and the continuous miner 

was being operated by the miner helper. He was assisted by a person 

classified as a general insi<le laborer. 

11. At approximately 4:45 a.m., the shuttle car operator became 

ill and went home. Pierce assigned the person acting as miner helper 

to operate the shuttle car, and told Complainant to help on the miner. 

Complainant objected that he had never worked around a miner in production, and that he did not feel safe doing the job. Pierce told 

Complainant that he would train him and would ive you a safety contact 

and , •. even go up and even do the job for you, but I need somebody up there so I won't get a grievance filed on me.° Complainant 

refused to go on the miner helper job and was sent out of the mine. 

Pierce and Simmons d on two important aspects of the conversation they had involving Simmon 7 s assignment to the miner helper job. 

Pierce asserts and Simmons denies that training was offered. Simmons 

asserts and Pierce denies that Simmons related his refusal to do the 

work to a concern for his safety. With respect to the first issue, I 

accept Pierce's testimony that training was offered. It seems to me 

inherently more probable than Simmons' testimony. It is also supported 

by the testimony of Mike Buskirk, personnel supervisor, and Rodney 

Butcher, chairman of the Local Union safety committee, both of whom 

testified that Complainant admitted in the first grievance meeting that 

Pierce had offered him training. 

With respect to the second issue, I accept Complainant's testimony 

that he specifically related his refusal to take the job to a fear for 

his safety, This conclusion seems more in accord with the context of 

the conversation. It is also in accord with the testimony of 

Mr. Buskirk and Ur. Butcher as to what Complainant said at the first 

grievance meeting. 

1586 
12. After Complainant's refusal to accept the assignment, but 

before he left the mine, Pierce asked mechanic Bob Porter to act as 

miner helper. Porter agreed and Complainant asked Pierce if he could 

remain and perform his mechanic duties. Pierce refused the request. 

13. A miner helper is required to handle the cable, to keep it 

out of the way of the miner, check for methane, set temporary supports 

or roof jacks, to keep ventilation curtains up to within 10 feet of the 

face, and be alert for shuttle cars. An experienced miner who had not 

worked on a continuous mining machine could be trained for a miner 

helper job in about 30 minutes except for the task of moving the miner 

back across the section. It would re~uire one shift to train an 

employee for the latter task. Pierce did not contemplate moving the 

miner back across the section the shift in question. 

14. It was common in the subject mine for mechanics to fill in 

on production jobs, and ically on the job of miner 

15. The National Bituminous Coal 1981 in effect 

at the subject mine on December 31, 1981, ibited any new inexperienced miner from working on or operating mining machines or mobile 

equipment until he completed at least 45 days of work underground. 

After 45 days, such an employee became eligible under the contract to 

bid on any vacant position. 

16. After Complainant left the mine Respondent decided to discharge him for insubordination and he received a written notice of 11 suspension subject to discharge" on December 31, 1981. 

17. Complainant filed a grievance under the union contract. The 

3rievance went to arbitration and the arbitrator upheld the discharge. 

18. Complainant filed a complaint under the Hine Act within :tSHA. 

After an investigation ~1SHA made a determination that a violation of the 

Act was not established. 

STATUTORY PROVISION 

Section lOS(c) of the Act provides in part as follows: 

(c)(l) No person shall discharge or in any manner 

discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal 

or other mine ect to this Act because such miner, 
representative of miners, or applicant for employment 

• • . has filed or made a complaint under or related to 

this Act, including a complaint notifying the operator 

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

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

safety or health violation in a coal or other mine • • • 

or because of the exercise by such miner, representative 

of miners or applicant for employment on behalf of himself 

or others of any statutory right afforded by this Act. 

ISSUE 

Whether Complainant's refusal to perform the job of miner helper 

on December 31, 1981, was protected activity under section lOS(c) of 

the Act? 

CONCLUSIONS OF LAW 

1. Complainant and Respondent were subject to the provisions of 

the Mine Act at all times pertinent hereto, and the undersigned 

Administrative Law Judge has jurisdiction over the parties and subject 

matter of this proceeding. 

2. Complainant did not establish that his refusal to work on 

December 31, 1931, was activity protected under the ~<fine Act. 

DISCUSSION 

Refusal to perform work is protected under section 105(c)(l) of 

the Act, if it results from a good faith belief that the work involves 

safety hazards, and if the belief is a reasonable one. Secretary of 

Labor /Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2 BNA ~1SHC 1001 

(1980), rev'd on other grounds, sub nom Consolidation Coal Co. v. 

663 F.2d 1211 (3rd Cir--:-1981); Secretary of Labor/Robinette 

v. United Castle Coal Co., 3 FHSHRC 803, 2 BNA MSHC 1213 (1981); Bradley 

v. Belva Coal Co., 4 FMSHRC 982 (1982). Further, the reason for the 

refusal to work must be communicated to the mine operator. Secretary of 

Labor/Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126 (1982). 

GOOD FAITH 

Although there is some evidence that Complainant was less than a 

model employee and that he was reputed to have avoided disagreeable 

tasks by claiming inability to perform them, this evidence is nebulous 

at best and there is no good reason to reject Complainant's testimony 

that he refused to work as a miner's helper because he feared for his 

safety. Therefore, I conclude that his refusal to work resulted from 

a good faith belief that it posed safety hazards. I have found above 

that he communicated the reason for his refusal to Respondent. 

1588 
REASONABLE 

The question remains whether Complainant's refusal to perform the 

work was "reasonable. 11 See Secretary/Bennett v. Kaiser Aluminum and 

Chemical 3 FMSHRC 1539 (1981). I conclude that it was 

stated in a recent decision (Secretary/Bryant v. 

4 FMSHRC (1982)), "fear on the part of 

miner of performance of a risky or dangerous task 

by other miners is not, standing alone, a 

to attempt to perform the task." Since I 

offered to give Complainant ; since 

miner; since the job which he refused was 

not more or se than any other job in the mine; since 

it did not involve a of a health or safety standard; and 

since it was performed by other miners, I conclude that 

Complainant's refusal to perform it was unreasonable. Therefore, under 

the Pasula - Robinette test, it was not protected under the :iine Act and 

the action in discharging him did not violate the Act. 

Section 105(c) was not designed to enable miners to avoid difficult 

or distasteful tasks even when the. avoidance is based in good faith on 

a concern for To be reasonable, the refusal to work must 

involve a condition or practice which creates a safety hazard 

the hazards inherent in the mining industry or occupation itself. 

Going underground and working in low coal (the height of the seam 

involved in this case was inches) can result in a good faith concern 

for safety in some For a person employed as a miner, refusal to 

work because of such a concern is not reasonable. Compare Victor 

-----~'-

v. 3 FMSHRC 2211 (1981). 

ORDER 

On the basis of the above findings of fact and conclusions of 

the complaint and this proceeding are DISMISSED. 

ltt;~S kt?vockJ?7~,j James A. Broderick 

·. Administrative Law Judge 

Distribution: By certified mail 

Mary Lu Jordan, ., United Mine Workers of America, 900 15th Street, 

N. \!., Washington, DC 20005 

D. Michael Miller, Esq., and Alvin J. I1cKenna, Esq., Alexander, Ebinger, 

Fisher, McAlister & Lawrence, 17 South High Street, Columbus, OH 43215 

Special Investigations, MSHA, 4015 Wilson Blvd., Arlington, VA 22203 

1589 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 25 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ROCKVILLE MINING COMPANY, INC., 

Respondent 

Docket No. WEVA 82-10 

A.O. No. 46-02558-03013H 

No. 1 S Mine 

Appearances: Joseph T. Crawford, Attorney, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the petitioner Neil A. Reed, 

Esquire, Kingwood West Virginia, for the 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil penalty 

filed by the petitioner pursuant to Section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. 820(a), seeking a penalty 

assessment for an alleged violation of mandatory safety standard 30 CFR 

77.1300. 

Respondent filed a timely answer in the proceedings denying the 

alleged violation, and pursuant to notice a hearing was convened in 

Morgantown, West Virginia, on April 22, 1982, and the parties appeared 

and participated fully therein. The parties waived the filing of written 

post-hearing arguments, but were afforded an opportunity to make oral 

closing arguments on the record, and I have considered these arguments 

in the course of this decision. 

Issues 

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

respondent has violated the provisions of the Act and implementing regulations as alleged in the proposal for assessment of civil penalty filed 

in this proceeding, and, if so, (2) the apμropriate civil penalty that 

should be assessed against the respondent for the alleged violation based 

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

issues raised by the parties are identified and disposed of in the course 

of this decision. 

15BO 
In determining the amount of a civil penalty assessment, section llO(i) 

of the Act requires consideration of the following criteria: (1) the 

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

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

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

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

demonstrated good faith of the operator in attempting to achieve rapid 

compliance after notification of the violation. 

Applicable Statutory and Regulatory Provisions 

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

30 U.S.C. § 801 ~seq. 

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

3. Commission Rules, 20 CFR 2700.1 et 

The civil penalty proposal filed by the petitioner on November 18, 

1981, seeks a civil penalty assessment of $1,200, for an alleged violation 

of mandatory safety standard 30 CFR 77.1300. The citation on which the 

penalty proposal is based, No. 855434, was issued by MSHA Inspector Ronald E 

Marrara on June 8, 1981, and it is an imminent danger order issued pursuan~ 

to section 107(a) of the Act. The conditions or practices cited by the 

inspector are as follows: 

Explosives and detonators were not being handled, 

charged, fired, or otherwise used in accordance with 

provisions of 77.1301 through 77.1304 inclusively. 

Blasting operations were being conducted without ample 

warning given before blasts were fired and without 

persons cleared and removed or protected from 

concussion or flyrock in the blasting area (77.130l(h)). 

Safety fuses 12 inches long (approximately 45 

second burntime) was being used in violation of 

77.1303(c). The blasting area where charged holes 

were awaiting firing, were not guarded or barricaded 

and posted against unauthorized entry. In a pattern of 

approximately 17 holes with 15 holes charged the blasting 

foreman was 11 getting rid of the water in the holes" by 

dropping a fused capped Gulf Deta-GEL primer in them. 

The 4 men on the drill bench gathered, unprotected approximately 130 feet from the closest hole that was detonated. 

There were also 3 men and this inspector in the pit area 

below where such shots were fired. The inspector observed 

2 such shots (holes) being detonated. It appears that 

numerous such shots have been fired this day and this 

is a common practice. 

1591 
Stipulations 

The parties stipulated to the following (Tr. 4-7): 

1. Petitioner's exhibits P-1, P-3, P-4 and P-5, which 

are copies of the citation, a modification to the 

citation, a computer print-out of respondent's 

history of prior violations, and a previous section 

104(d)(l) order issued on January 6, 1981, may all 

be admitted as part of the record in this case. 

2. Payment of the maximum civil penalty assessment 

in. this case will not adversely affect respondent vs 

ability to remain in business. 

3. Respondent 1 s annual coal production in 1980 was 

253,813 tons, and respondent has approximately 54 

employees on its payroll. 

4. Respondent is a small-to-medium sized mine operator. 

Testimony and evidence adduced by the petitioner 

MSHA Inspector Ronald B. Marrara testified that he has been employed 

as a surfa~e coal mine inspector for approximately five years and that 

prior to that time, between 1974 and 1977, was employed as a foreman 

with the Comet Coal Company in Kingwood, West Virginia. During his 

tenure as an inspector, he has taken training courses in surface blasting 

and explosive techniques and safety. He confirmed that he was at the 

mine in question on June 8, 1981, to conduct a spot inspection and to 

abate a previously issued citation. He arrived at the site at approximately 

9:45 a.m., and while on the road leading to the 7500 Pit, he encountered 

a bulldozer operator working on the road. He advised the worker that he 

was there to make an inspection, and at about the same time foreman Kermit 

Galloway approach him. He advised Mr. Galloway that he was there to make 

a spot inspection and to abate a previous citation, and Mr. Galloway 

told him to "go ahead", but that he did not have time to accompany 

him (Tr. 8-11). 

Mr. Marrara stated that after leaving Mr. Galloway, he decided to 

walk into the site rather than to drive and disturb the dozer operator 1 s 

road work. At approximately 9:54 while walking along the pit high wall 

area, he heard two explosions go off and material was thrown into the air. 

The explosions took place above the high wall on a drill bench area 

where holes were being drilled and shot. He was almost directly under 

the holes when they went off, and he then went back to his vehicle and 

drove to the pit. He arrived there at 10:00 a.m., and found four people 

working on the "drill bench". Mr. Donald Jordan, the blasting foreman, 

was supervising the work of two drill operators and one blasting helper. 

After arriving there, Mr. Jordan advised him that they ''were getting 

rid of water in the holes by dropping a fused capped primer". The primer 

was a one-pound Gulf Deta-Gel primer with a safety fuse and cap. He 

1592 
determined that the crew which was present were 145 feet from the 

furthest hole which had been detonated, and they were in front of a 

pump truck. Mr. Marrara observed approximately 17 holes in the area, 

15 of which were charged and primed in some way, with electrical wires 

running out of the holes, and some of the holes were fully charged with 

AMFO, an ammonia nitrate fertilizer mixture which is used as an explosive. 

(Tr. 12-15). Mr. Jordan stated to him that he was using twelve inches 

of fuse, with an approximate burn time of 45 seconds (Tr. 12-15). 

Mr. Marrara testified further that he observed no warning signs 

or barricades at the detonation site, heard no horns sounding a warning to 

persons that blasting was taking place, and no one was "cleared of the 

area". He therefore advised Mr. Jordan that he was issuing a section 

107(a) imminent danger order because of what he observed, and he identified 

a copy of the order which he issued (Tr. 15-19). He believed that the fuses 

being used were too short because the law specifies that a fuse burn time 

should be a minimum of two minutes, and Mr, Jordan confirmed that the 

actual burn time for the fuses he was using was actually 40 seconds per 

foot. He should have been using a 36-inch fuse in order to comply with 

the required safety standard. Mr. Marrara believed that the operator 

was negligent and that Mr. Jordan was aware of the fact that he was in 

violation by placing his crew in such hazardous conditions (Tr. 20). 

Mr. Marrara identified a copy of his inspector vs statement (ExL P-2), 

which he prepared at the time of the inspection. In regards to his 

notation on this form that "this type of violation occurs frequently", 

he explained that he had previously issued a January 6, 1981, unwarrantable 

failure citation to the respondent for a blasting violation (Exh. P-5), 

and at that time he had reviewed the blasting laws with Mr. Jordan. 

In addition, shortly after the imminent danger order issued, Mr. Galloway 

came to the scene and stated to him that "this was a common practice that 

was being conducted at this operation". The "common practice" being 

getting rid of water in the holes by blasting (Tr. 21-22). 

Mr. Marrara stated that Mr. Jordan admitted that he did not look 

over the high wall prior to the blasting, and when he asked him 

whether he was aware of the fact that he was in violation and was exposing 

his men to a hazard, Mr. Jordan nodded his head affirmatively and stated 11 1 guess so" (Tr. 25). Mr. Marrara also indicated that at the time he 

issued the previous citation he had a lengthy discussion with Mr. Jordan 

concerning the requirements of the standards dealing with blasting. 

He also discussed the regulations with the mine owners at that time 

(Tr. 26). . 

Mr. Marrara believed that the conditions he cited in his imminent 

danger order were serious in that he reasonably expected someone to be 

killed or injured "right in front of my eyes". He observed fine material 

being thrown into the air at the time of the explosions in question, and 

he was some 150 feet away. He believed that the three men in the pit 

area, as well as the four men on the drill bench, and himself, were all 

directly exposed to the hazardous conditions he cited. He was concerned 

1593 
that the blasted materials thrown in the area could fall on someone, 

and they could also fall down the charged holes and set them off. In 

addition, a quick movement of air could generate static electricity and 

possibly set off the entire shot (Tr. 26-31). 

Mr. Marrara stated that he determined through observation that 

some of the filled holes were charged, primed, and had filters in them. 

After the order issued at approximately 10:05 a.m., drilling operations 

ceased, and the men were assembled at a distance past the pump truck. 

He then discussed the violation and the applicable safety standards 

with the men, and also present were Mr. Jordan and Mr. Galloway. Mine 

Owner Darrell Tichnell arrived during the latter part of the discussion, 

and after warning signs were posted, Mr. Marrara abated the order at 

approximately 10:24 a.m., and the men went back to work. He confirmed 

that the order issued for a violation of section 77.1300, but that there 

were "three or four separate problems" (Tr. 32-36), 

On cross-examination, Mr. Marrara confirmed that on June 8, 1981, he 

did not first stop at the mine office, as is his usual practice, prior 

to entering the mine premises. He also confirmed that the ground around 

the drill holes in the blasting area was "wet around the holes", but that 

no puddles of water were present. Based on these observations, he concluded 

that the water had come out of the holes. Mr. Marrara described the mining 

procedures, and confirmed that in a surface mining operation the top soil 

and overburden is removed, leaving an exposed cut-out area in the side 

of the hill. He confirmed that the detonations occurred in the high wall 

drill bench area and not down in the pit area where the coal is found, 

and he described the physical characteristics of the area in question 

(Tr. 36-44). In determining the depth of the holes he observed, Mr. Marrara 

stated that he did not test them, but simply concluded that they were 

about 45-to-50 feet deep. A normal charge for holes of this size would 

be about 800 pounds of explosive (Tr. 45). Assuming that the hole was 

145 feet deep, and it was charged with 800 pounds of explosive, Mr. Marrara 

conceded that there would be no surface subsidence other than the material 

coming directly out of the hole. By the same token, using a one pound charge 

in that same hole, the most probable possibility is that water and loose 

rock material will come practically straight up out of the hole (Tr. 47-48). 

With regard to the materials that he observed coming out of the holes 

which were detonated on June 8, Mr. Marrara conceded that from where he 

was standing 150 feet away all that he could see coming out of the holes 

was the mist from the water and the dust in general (Tr. 49). The workers 

in the pit area were also standing approximately 150 feet away, but those 

persons up on the bench were much closer, and he was unaware that any 

particles from the explosions touched them. No one complained that they 

had been touched by any materials coming from the holes, and no one was 

injured (Tr. 51). 

Mr. Marrara confirmed that the blasting standards require the use 

of a 36-inch fuse with a two-minute burn time, regardless of whether a 

hole is loaded with 800 pounds of explosives or one pound. The purpose 

1591J 
of the burn time is to allow the person lighting the fuse sufficient 

time to get away from the area. He conceded that lighting such a fuse 

or explosive that is openly exposed on the surface is much more dangerous 

than dropping it down a 145 foot hole (Tr. 52). He also confirmed that 

on the day in question, a one-pound charge was being dropped down 45 

foot holes for the purpose of blowing out the water at the bottom of the 

hole, and not for the purpose of disturbing the rock strata (Tr. 53). 

Mr. Marrara conceded that misfiring of charges is critical, and 

that from a safety standpoint, an operator has to make certain that 

every charge goes off, rather that having misfired charges lying around 

(Tr. 53). He described the procedures used to load the holes for detonation, 

and confirmed that the operator wants to get water out of the hole 

because water used with AMFO will not explode, and it is common practice 

in the mining industry to try to get dry holes before blasting, However, 

Mr. Marrara stated that there are other explosives available which do 

not require the blasting of water out the hole. However, using the type 

of explosive that the operator in this case opted to use was not and he 

conceded that they must strive for a dry hole and that it is dangerous 

to leave explosives which had not been properly detonated at the bottom 

of a hole is dangerous (Tr. 54-57). 

Mr. Marrara stated that on all occasions prior to June 8, the operator 

used a pump to pump the holes dry, but he denied that the pump was broken 

that day. In addition, he stated that Mr. Galloway told him that when 

the pumps were down, it was common practice to blast water from the holes, 

but that both Mr. Jordan and Mr. Galloway advised him later in the day 

that the pump was not broken. Since the citation issued, the operator 

no longer blasts water from holes, and uses the pumps exclusively for 

this task (Tr. 59). Although conceding that the water blasted from the 

holes on June 8, came back down to rest three to five feet from the holes, 

he still believed that the drill bench crew, standing 130 feet away, 

were still not a safe distance, even though he could not observe an 

debris coming out of the holes (Tr. 60). 

Regarding his prior unwarrantable failure citation, Mr. Marrara 

confirmed that it concerned a pick-up truck with properly inflated 

tires running over a blasting cap placed in a charged hole and he conceded 

that there have been no similar incidents at the mine (Tr. 61). However, 

he indicated that he has no knowledge concerning the respondent's past 

safety record (Tr. 62). 

In response to further questions, Mr. Marrara stated that it 

was his understanding that Mr. Jordan lit two 40-second fuses at a time, 

dropped the charges down the holes, and then ran over to the area where 

the other members of the crew were standing. He identified a sketch 

of the area (Exh. P-6), which basically describes and diagrams the scene 

as he observed it. He believed the procedure used to light the charges 

would contribute the the gravity of the violations, since Mr. Jordan could 

stumble while leaving the area, or he could become disoriented and drop 

the charge down a loaded hole which is not stemmed (Tr. 63-66). 

1595 
In response to bench questions, Mr. Marrara stated that his principal 

·concern on June 8, was the hazardous conditions which prevailed as a 

result of the method used to blow water out of the holes in question. He 

conceded that the practice of blowing water out of holes by means of 

permissible explosives is not se a violation. Further, the use of AMFO 

as an explosive is likewise not a violation. However, he believed that 

a better way was to use pumps rather than explosives, and he reiterated 

that blasting water out of holes is not in and of itself a violation of any 

mandatory standard. His concern was over the fact that no warnings had 

been sounded and no barricades had been erected (Tr. 71-73). 

He was also influenced by the fact that Mr. Galloway stated that this 

was a "frequent practice" (Tr. 75). He also indicated that at the time 

he abated the prior unwarrantable citation, he went over all of the 

provisions of the blas standards with Mr. Jordan (Tr. 79-80). 

At the time he observed the instant conditions on June 8, some of the 

holes were charged to break up the overburden, and while the holes were 

charged, he conceded that the charge wires were not connected to the 

blas machine and were shunted. Even though were shunted, he 

still believed that static electricity could have possibly set the 

off, He conceded that a sign indicating "b in progress" was 

posted at the site in question (Tr. 86). Even if a fuse longer than 

the one used was used by Mr, Jordan, he would still be concerned 

over the fact that the crew would still be exposed to small materials 

(Tr, 88), 

Mr. Marrara stated that he cited a violation of section 77.1300 

on the face of his order, but that in his description of the conditions 

and practices, his intent was to charge the respondent for violations 

of sections 77.1301 through 77.1304, which section 77.1300 incorporates 

by reference. He stated that he discussed each condition cited with 

Mr. Jordan, as well as mine operator Darrell Titchnell. He conceded 

that he failed to cite a specific violation of section 77.1303(g) for 

lack of barricades, and he dismissed this as a "mistake" on his part. 

He also conceded that the "conditions or practices" recited in his order 

came from what he observed and from what Mr. Jordan and the crew told 

him (Tr. 88-94). 

Mr. Marrara conceded that the possibility of material blasted from 

a hole with a one pound charge falling into a hole next to it and 

detonating it was improbable, and he has never known this to happen 

(Tr. 98). He also conceded that static electricity igniting properly 

charged holes was a very rare occasion (Tr. 98). He estimated that a 

safe distance for people to be in the event all of the holes in question 

were charged with 800 pounds of explosives each would be 2,000 feet if 

they were out in the open and unprotected (Tr. 100). However, in the 

event one shot was put off with one pound of explosive, 130 feet would 

be sufficient, assuming the men were protected by some structure (Tr. 102). 

In his view, if the men were under a piece of equipment, he would consider 

them to "be protected" under the safety standard (Tr. 103). He conceded 

that at no time did h~ ascertain that respondent's mine management 

or supervisors had instructed Mr. Jordan not to use a 36-inch fuse (Tr. 107). 

159() 
Although signs were posted at the entrance to the property stating 

that the blasting was taking place, there were none posted at the 

actual blasting area where charged holes were awaiting fireing, nor 

were any barricades erected (Tr. 109). Section 77.1303(g) requires the 

posting of signs and the errection of barricades in the immediate 

area where the charged holes were located (Tr. 110). He did not consider 

Mr. Jordan's presence at the blasting site to be a suitable "guard" 

or barricade, nor did he consider the signs at the mine entrance to be 

a sufficient warning since anyone could drive directly up to the bench 

site where the charged holes and blasting was taking place (Tr. 112), 

Testimony and evidence adduced by the respondent 

Donald E. Jordan testified that he is employed by the respondent 

as a drill operator, but at the time the citation issued he was a shot 

foreman. He described the duties as a shot foreman, and stated that he 

served as an explosives supervisor for the respondent for some ll years 

and has a blasting license issued by the State of Pennsylvania. A 

license is issued based on training and experience, and he confirmed 

that he was supervising the blasting operations on the day Mr. Marrara 

issued the citation in question. He identified a copy of the sketch 

of the scene (Exh. P-6), and agreed that it generally depicts the approximate 

positions of the holes being drilled that day, He explained the procedures 

he followed for detonating the holes, and indicated that all of them 

had been drilled 108 feet deep for the purpose of blas up the over--

burden so that it could be removed. His intent was to blast the area 

in the rock strata immediately above the location of the coal. He 

was present when most of the holes were bored and loaded with explosives, 

and was in the process of loading the holes and stemming them when he 

first observed Mr. Marrara (Tr. 123-129). 

Mr. Jordan explained that some of the holes contained underground 

rain water, and he explained how he attempted to remove that water by 

blasting. He confirmed that mine management had never instructed him 

as to the length of the fuses to be used, and confirmed that on the day 

in question he was using a fuse and a cap and a one pound stick of Delta 

Jell to blow the water out of the holes. He described the Delta Jell 

as two inches in diameter and eight inches long, and weighing one pound. 

The charge was dropped down the holes, which were five and five-eights 

inches in diameter, and they were dropped to the bottom of the holes where 

the water was located. He and his helper both lit the Delta Jell together, 

and each of them would go to two different holes located fifteen feet 

apart, drop them down the holes and then leave the area. The resulting 

blast would propel "muddy water" out of the holes, spreading it about 

six or eight feet around the holes (Tr. 130-137). 

Mr. Jordan stated that at the time the holes in question were 

blasted, he believed his employees were at a safe distance away, and that 

after he and his helper dropped the charges down the holes they retreated 

159t( 
through an unobstructed path back to the truck. He and his helper made 

their way to the truck for a distance of 130 feet and "stood there awhile 

before it went off" (Tr. 139). The force of the blasts propelled water 

some 50 feet in the air from the surface, and it came straight down in 

a circumference of some six feet around the hole. He recalled seeing 

no other debris or rock, other than dust, being propelled out of the 

hole (Tr. 139-141). In his view, none of the one-pound explosives used 

in the 108 foot deep holes could have jarred or caused the other charged 

holes to explode, and his opinion in this regard was based on the 

fact that the primed and charged holes were fifteen feet apart (Tr. 143). 

Prior to the setting off of the charges, he would have signaled the men 

in some fashion, as is his.usual practice, and his crew were all experienced 

miners, When he dropped the charges down the hole, he had no way of 

knowing that Inspector Marrara was on the premises, and in his view, he 

was not within any dangerous proximity of the one-pound charge (Tr. 146-147). 

However, his presence on the coal , had the entire shot of all the · 

holes gone off, would have placed him in danger since he was directly 

below the shot. However, he did not see Mr. Marrara, and the other men 

in the pit were some 294 feet from where the water was shot out of the 

holes (Tr. 148), 

Mr. Jordan stated that blasting shelters are sometimes used on 

site, but that a common practice is to use vehicles for protection. 

response to a question concerning any hazards, he stated as follows 

Q. Except for the length of the fuse that was used, 

by you and your helper, was there anything that 

you or your helper or anyone in the area did that 

considered a hazard to their own or other people 1 s 

health and safety? Except Mr. Marrara. Not 

counting Mr. Marrara was there anybody there doing 

anything that was careles~ aside from the length of 

the fuse? 

A. Not to my knowledge. 

the 

In 

(Tr, H9): 

Regarding the use of a pump to remove water from the holes, Mr. Jordan 

stated on the day in question it was either "broke down or plugged, I 

don't remember", and he made the decision to blast the water out (Tr. 154). 

He also indicated that it was an "acceptable practice" in the mining 

industry to use small explosive charges to remove water from a drill 

hole (Tr. 155). Although Mr. Marrara subsequently advised him that he 

could use this method as long as three foot fuses were used, other safety 

inspectors told the mine owners that water could not be blasted out of 

holes under any circumstances (Tr. 156). He could not recall Mr. Marrara 

discussing the length of fuses with him during the time he issued the 

previous citation for a pick-up running over a charged hole. 

1598 
Mr. Jordan confirmed that he made the decision to use a one-foot 

fuse on June 8, 1981, because he believed this would allow him and his 

helper enough tolerance to away from the hole once the charge was 

dropped in, and to his knowledge respondent has never had any industrial 

mining accidents, and he believes the company has a good safety record 

(Tr. 157-158). Mr. Jordan stated that before placing off the "big charge", 

he would have sounded a horn device, but that this is not normally done 

for small charges to dispel water from a hole because everyone within the 

proximity of the is within sight and would know that it was going 

to be shot (Tr. 168). 

On cross-examination Mr. Jordan could not recall the total number 

of holes, and doubted that them were filled with water. On the 

day in question, he believed that only two holes were blasted and these 

were the ones that the heard, He confirmed that from where he 

was standing he did not see Mr. Marrara in the pit at the time the holes 

were blasted, and conceded that he did not look into the pit immediately 

prior to the b , nor did he give any warnings in the pit area. He 

also conceded that he used a foot-long fuse to set off the charges in 

question, and indicated that he was taught to use 12 inch fuses by 

Mr. Darwin Titchnell, one of the mine owners. Mr. Jordan also confirmed 

that he had received training in Pennsylvania, that he holds 

a blaster s license from the State, but stated that his knowledge of 

the use of fuses is what he learned from Mr. Titchnell. Although 

Mr. Marrara discussed the use of proper fuses with him at the time the 

citation in here was issued, Mr. Jordan could not recall 

Mr. Marrara discus this with him on the prior occasion when he issued 

a citation (Tr. 168-175). 

Mr. Jordan identified a copy of a sketch of the area where the 

blasting was taking (Exh. P-6), and conceded that no signs were 

posted in the immediate area where the holes in question were drilled. 

He considered that to be the "shot area", and he indicated that signs 

have been in the past, and this would be on the road 300 or 400 

feet away. On the day in question, he observed no large debris come 

out of the holes which were blasted. He confirmed that he is presently 

a drill , which is a "step up" from a shot foreman, 

"the 

specifications. 

He requested to be reassigned because of 

of that worrying about just having everything up to 

Meeting the law11 (Tr. 182). 

In response to further questions, Mr. Jordan stated that he did 

not believe that any debris from the blasted water holes could set off 

the other holes because they were stemmed and covered. In 

addition, since the cap wires were shunted, he considered them to be safe. 

He conceded that had a sign been posted at the "shot area", the 

would be unable to see it until he was almost at the shot, and he also 

indicated that the inspector could not have seen it from where he was 

located prior to the time the shot went off. He also indicated that 12 

1599 
inch fuses are not used to blast overburden because more time is required 

to get away from flying materials, but he does not believe that using 

such fuses to blast water out of a hole is dangerous, but conceded that 

a premature shot would be serious. He does not like using longer fuses 

for shooting water because the caps have longer to become wet and several 

misfires have occurred because of this. He conceded that had pumps 

been used, misfires would not be a problem and the citation probably 

would not have issued. However, the law does not require the use of 

pumps (Tr. 182-192). 

Mr. Jordan stated further that since there was 15 feet of solid 

rock between in each loaded shot, and each hole was 108 feet deep, 

he did not believe the loaded holes could have been set off by the blast 

which occurred. He explained how he stemmed and covered the holes, 

and he did not believe that such a hole charged with 800 pounds of explosive 

could possibly have set all of the others off (Tr. 196). 

general superintendent, testified that he has 

observed the manner in which water was removed from holes by Mr. Jordan. 

He indicated that no one has ever been injured during any blasting at 

the mine, and safety is always of prime concern. He indicated that he 

usually accompanied the inspector during his rounds, and that he would 

stop by the office. Boever, on the day in question he met him at the 

"backfill", and he did not first stop at the office. Had he stopped by 

the office, he could have radioed ahead to any areas where blasting was 

taking place to alert the crews that he was in their area. He indicated 

that it has always been a common practice to shoot water out of holes. 

The pumps were purchased in 1976, and on the day the citation was issued 

the pump was either broken down or plugged, but he could not recall. 

He has never been instructed as the length of fuse to use for small 

charges, and that the electronic method is used for major charges. The 

only time fuses are lit with matches is when water is blown out of a hole, 

and Mr. Marrara has never discussed this procedure with him. He still 

considers the practice to be safe, but since the citation issued, pumps 

are used exclusively to dispel water from holes (Tr. 201-215). 

On cross-examination, Mr. Galloway confirmed that when he first 

encountered Mr. Marrara at the site, he did not ask him to report to 

the office, and simply told him to go where he had to but that he did 

not have the time to go with him (Tr. 221). Mr. Galloway knew that the 

holes were being cleared of water by blasting, but did not tell Mr. Marrara 

because he did not consider it dangerous. A sign was posted on a road, but 

the inspector came in by a different one (Tr. 222). He did not consider 

that Mr. Marrara was in any danger when he headed to the pit to check 

on an abatement for a citation issued on a broken windshield (Tr. 226). 

Rebuttal witness 

MSHA Inspector Charles J. Bush, testified that prior to his ten-year 

employment with MSHA, he was employed as a resident engineer by the 

Consolidation Coal Company. He testified as to his training regarding 

1600 
safe explosive practices, and indicated that he holds an instructor's 

certificate:in explosives and has taught courses in the subject (Tr. 244). 

In answer to a hypothetical question as to the probability or possibility 

of a one pound charge placed into a 108 deep hole detonating other fully 

charged holes located within 15 feet, Mr. Bush stated that "it is probable" 

(Tr. 249). He explained his answer, and indicated that it was 

for the other charged holes to be detonated by the concussion of the 

initial first one-pound charge, and he indicated that "the probability 

is there" (Tr. 252). 

With regard to the actual distance of 130 feet that the men in question 

were standing from the two water holes which were blasted on the day the 

citation issued, and whether they were a safe distance, Mr. Bush 

admitted that "I've got to say that was a pretty substantial distance, 

for those two bore holes in 11 • 253). However 9 had the 

holes all gone off, the 130 feet would not be sufficient because 

there are to many variables. In his a half-mile distance would 

not be safe if a total of 4500 pounds of explosives were used (Tr. 255). 

On cross-examination, Mr. Bush confirmed that wind conditions will 

effect the direction of any materials coming out of a blasted hole, and 

that anyone standing 130 feet from. the hole which was charged to blast 

out the water would be at a safe distance (Tr. 258). Mro Bush also 

confirmed that he has been at the mine site in question, but has not 

examined the rock strata at the location where the shots in question were 

fired, nor has he inspected the site since 1976 (Tr. 262). He confirmed 

that it was highly probable that one of the charged holes where the water 

was located could have detonated the other charged holes, and when asked 

why it didn't on the day in question, he answered "Lucky, this time" (Tr. 260). 

Mr. Bush indicated that his prior experience includes ten years 

of demolition duty with the City of Pittsburgh, and stated that he has 

never lit a one pound charge with a fuse 12 inches or shorter, and that 

he has always used 36 inch fuses. He confirmed that he assisted in the 

drafting of the mandatory safety standard in issue in this case, and 

stated that he has never seen anyone shoot water out of holes in 

Preston County (Tr. 262). 

In response to bench questions as how he would propose to dispel 

water from a hole, Mr. Bush stated that water slurries may be used, 

but they are expensive. He also indicated that MSHA's technical personnel 

can assist a mine operator if he has a water problem. He indicated that 

blasting water out of a hole with AMFO is not a violation of any mandatory 

standard se, but that doing so with adjacent holes being charged adds 

to the gravity of the situation (Tr. 268). He also conceded that no one 

has determined precisely what a safe distance is when blasting holes, 

and while conceding that he had no knowledge of the rock strata at the 

blasting site, his prior opinion as to a safe distance was based on "past 

experience" (Tr. 269-270). 

Mr. Bush stated that had he been in Inspector Marrara's position, 

and faced with the same conditions, he too would have issued an imminent 

danger order, and that his concern would have been over the safety of 

the men at the site in the event the rest of the holes were set off. Even 

if the other 15 charged holes were not present, he would still consider 

1601 
it an imminent danger because the man lighting the short 12 inch fuse 

and dropping the charge in the hole would be in danger (Tr. 271-273). 

When asked whether the use of a 36-inch fuse would also be a hazard, 

he responded as follows (Tr. 272-274): 

JUDGE KOUTRAS: Simply dropping a one pound charge 

down a hole to dispel water with a thirty-six inch fuse 

would be a hazard? 

THE WITNESS: To me I think it would still be a 

hazard. 

JUDGE KOUTRAS: Well, wouldn't the operator be in 

compliance? 

THE WITNESS: Yes, sir, I know he would. 

JUDGE KOUTRAS: But, why then, with that thinking 

then the operator could never get rid of water by using a 

charge? Even using a thirty-six inch fuse. 

THE WITNESS: Most of your explosive manufacturers 

consider this as a bad practice, to get water out of a 

hole. 

JUDGE KOUTRAS: Then why doesn't MSHA promulgate a 

standard that says, thou shalt not get water out of a hole 

using any explosive device, period? 

THE WITNESS: We have on different instances submitted 

our memos and recommendations which MSHA has asked for, from 

all different districts, I think several different areas that 

it was brought about, in reference to Kentucky and Tennessee, 

these past couple months. It's hard to get something substantial 

to cover all phases of explosives. 

Petitioner's arguments 

At the close of the hearing, petitioner's counsel summed up his 

case by asserting that Inspector Marrara found a set of circumstances 

in connection with the blasting of water out of holes that violated 

certain specific standards under section 77.1300. A violation 'occurred 

when the respondent used fuses of improper length during the blasting, 

namely, 12 inch fuses rather than the required 36 inch fuses. In 

addition, failure by the respondent to give any warnings prior to the 

shots being detonated also constituted a violation, as well as the failure 

to post a sign at the blasting site (Tr. 281-282). 

Respondent's arguments 

With regard to the lack of any warnings, respondent argued that it 

is clear that warnings were given to everyone in close proximity to 

the explosive charge, since it is obvious that Mr. Jordan's crew was 

1602 
participating in the blasting itself and were verbally warned. In 

addition, it is clear that signs were posted in accordance with the 

requirements of the standards (Tr. 283). 

Concerning the·use of the fuses in question, respondent's counsel 

conceded that the regulations specifically require the use of 36-inch 

fuses, and that Mr. Jordan was using 12-inch fuses. However, given all 

of the prevailing circumstances, counsel views this violation as a 

"technical" violation committed by Mr. Jordan, who by experience and 

judgment believed that the use of 12-inch fuses to blow water out of 

a hole was safe. He also pointed out that the men were at a safe distance 

from the two holes which detonated, and that MSHA's witness Bush agreed 

that this was the case (Tr. 284). 

Respondent's counsel argued further that the only thing that makes 

this situation concerning the blasting of holes an 1'imminent dangerY! in 

the eyes of the inspector, is MSHA's 11 theory and speculationn as to the 

probabilities of the other charged holes being detonated by one 

However, counsel points out that the practice utilized by Mr, Jordan 

to dispel water from a hole was designed to result in a complete, free, 

and unobstructed "straight-up 11 shot from a hole 108 feet deep. There 

is no credible evidence as to the rock formations, strata, or whether 

the pit area would have affected by any premature charge going off (Tr, 286) 

With respect to Mr, Marrara 1 s claims that he had previous advised 

the respondent about the requirement for using 36-inch fuses, counsel 

points out that Mr. Jordan testified that this conversation took place 

after the instant citation issued. Given all of the circumstances of 

this case, counsel maintained that the proposed civil penalty is excessive 

and exorbitant, and that a fine of $25 or $50 would be more appropriate 

(Tr. 287). 

Findings and Conclusions 

Fact of Violation 

As stated earlier in this decision, Citation No. 855434 is an 

"imminent danger 11 order issued by the inspector pursuant to section 

107(a) of the Act. The inspector subsequently modified the citation to 

show that it was also a citation issued pursuant to section 104(a), 

The validity of the order itself, that is, whether the inspector was 

correct in his judgment that the conditions he cited in fact constituted 

an imminent danger is not in issue in this case. Any hazard or danger 

connected with a violation of any mandatory safety standard will be 

dealt with in connection with my gravity findings. 

Inspector Marrara conceded that the use of explosives to dispel 

water from drilled holes is not per a violation of any mandatory 

safety standard. His concern was that the respondent did this as a 

nregular practice" and the inspector believed that a better way of drying 

out the holes was through the use of pumps. However, on the facts 

1603 
presented in this case, the manner in which the respondent was drying 

out the holes is not a significant issue, unless of course the petitioner 

can establish that in the course of the blasting the respondent violated 

certain mandatory safety standards. 

In its proposal for assessment of civil penalty filed in this case, 

the petitioner sought a civil penalty for "each alleged violation set 

forth in attached Exhibit A". Exhibit "A11 is a copy of MSHA Form 1000-179, 

which is the proposed assessment served on the respondent. That form 

reflects that MSHA's Office of Assessments waived the normal assessment 

procedures found in Part 100, Title 30, Code of Federal Regulations, 

and "specially assessed" a· civil penalty in the amount of $1200 for 

the citation in question. That "special assessment 11 was made on an 

alleged violation of mandatory safety standard section 77,1300, and the 

"narrative findings" of the assessment officer reflects that the civil 

penalty assessment levied by him was made on the basis of his "special 

findings" connected with an alleged violation of section 77.1300, In 

short, MSHA 1 s Office of Assessments treated the conditions or practices 

described on the face of the citation as one violation of section 77.1300. 

However, during the hearing, Inspector Marrara testified that his intent 

was to charge the respondent with separate violations of sections 77.1301 

through 77.1304, in addition to section 77.1300, a general standard which 

incorporates section 77.1301 through 77.1304 by reference. Under these 

circumstances, it is first necessary to determine what the 

respondent has been charged with in this case. 

The "conditions or practices" described by Inspector Marrara on the 

face of the citation which he issued contains a narrative of certain 

conditions and practices which he observed. The "part and section" of 

the law cited by Mr. Marrara on the face of the citation form is 

section 77.1300, and that is the section cited by the petitioner in its 

proposal for assessment of civil penalty. MSHA's initial assessment was 

made on the basis of an alleged violation of that section by the respondento 

However, in the narrative description of the "conditions or practices" 

described by the inspector on the citation form, Mr. Marrara inserted 

references to mandatory standard sections 77.1303(h) and 77.1303(u), 

and these are shown as follows: 

Blasting of pit holes were being conducted without 

ample warning given before blasts were fired and without persons cleared and removed or protected from 

concussion or flyrock in the blasting area (77.1303(h)), 

Safety fuses 12 inches long (approximately 45 second 

burntime) was being used in violation of 77.1303(u). 

In addition, the citation states that "the blasting area where 

charged holes were awaiting firing, were not guarded or barricaded and 

posted against unauthorized entry." Although Mr. Marrara did not include 

a reference to any specific safety standard, he testified that his 

intent was to charge the respondent with a violation of section 77.1303(g), 

and the omission of a reference to this section was a 11mistake 11 on his 

part. 

1604 
Section 77.1300, Title 30, Code of Federal Regulations, provides 

in pertinent part as follows: 

(a) No explosives, blasting agent, detonator, or any 

other related blasting device or material shall be 

stored, transported, carried, handled, charged, fired, 

destroyed, or otherwise used, employed or disposed of by 

any person at a coal mine except in accordance with the 

provisions of 77.1301 through 77.1304, inclusive. 

Sections 77.1301 through 77.1304 of the standards dealing with 

blasting and explosives contain approximately four pages of detailed 

mandatory safety requirements dealing with explosives, magazines, vehicles 

used to transport explosives, explosives handling and use, and special 

provisions dealing with blasting agents. Under these circumstances, I 

believe that it is incumbent on the petitioner to specifically detail 

in its proposal for assessment of civil penalty the precise sections 

of the standards for which it seeks civil penalty assessments. In this 

case, the petitioner attached an exhibit which is an initial civil penalty 

assessment dealing with section 77.1300, for which an assessment of 

$1200 was levied. In short, it would appear from the pleadings that 

the petitioner had one violation in mind, while the inspector who issued 

the citation had two or three in mind when he issued the citation. 

Under these circumstances, it is necessary to determine whether the 

record here supports a conclusion that the respondent was put on notice 

as to what it was being charged with and whether it has had a fair opportunity 

to meet those charges. 

Although the pleadings and citation issued in this case are not 

models of clarity, I believe that the record establishes that the respondent 

knew what it was being charged with and has had a full and fair opportunity 

to defend itself. While the proposal for assessment of civil penalty lists 

only section 77.1300 on "Exhibit A", the citation issued by the inspector 

was included as part of the pleadings, and the conditions or practices 

detailed in the citation was discussed by the assessment officer as part 

of his "Narrative Findings. 11 In addition, respondent's answer to the 

proposal for assessment of civil penalty suggests that it was aware of 

the charges since respondent specifically entered a denial as to each 

of the essential allegations made by the inspector in the citation. 

Further, the inspector testified that he discussed each of the mandatory 

safety sections with Mr. Jordan and mine operator Tichnell (Tr. 93), 

the record here reflects that respondent has had a full opportunity 

to cross-examine the inspector and to present testimony and evidence in 

support of its defense, and the respondent has not claimed prejudice 

or surprise. 

The fact that MSHA opted to treat the conditions and practices 

cited by the inspector as one violation rather than three for purposes of 

an assessment of civil penalty has not prejudiced the respondent. By 

the same token, since I am not bound by MSHA's penalty assessment 

procedures, I conclude that for purposes of my findings and decision in 

this case I may treat I may make findings concerning each of the standards 

cited by the inspector and render my decision accordingly. My findings 

and conclusions in this regard follow below. 

160:) 
}O CFR 77.1303(u) 

Respondent does not dispute the fact that the use of the twelve 

inch fuses by Mr. Jordan during the blasting of water from the two holes 

which were shot on June 8, 1981, was contrary to, and in violation of 

section 77.1303(u), which required the use of 36-inch fuses. Petitioner 

has established a violation of this section by a preponderance of the 

evidence adduced in this case, and that portion of the citation charging 

a violation of section 77.1303(u) is AFFIRMED. 

30 CFR 77.1303(g) 

The citation asserts that "the blasting area where charged holes 

were awaiting firing, were not guarded or barricaded and posted against 

unauthorized entry!!, Section 77.1303(g) requires that 11Areas in which 

charged holes are awaiting firing shall be guarded, or barricaded and 

posted, or flagged against unauthdrized entry." 

The term "blasting area" is defined by section 77.2(f) as "the 

area near blasting operations in which concussion or flying material 

can reasonably be expected to cause injury". The cited standard does 

not use the term "blasting area"; it simply refers to in which 

holes are awaiting firing. Shot foreman Jordan testified that 

while some of the drilled holes which constituted the "shot" were charged, 

the holes were stemmed and covered and that the cap wires were shunted, 

He believed that the irrunediate area where the drilled and charged holes 

were located constituted the "shot area", but that the posting of a sign 

at that location would be of no value since someone would be "on the shot 

area" before seeing any such sign. 

Respondent has established that it had a sign posted on one of its 

mine roads indicating that blasting operations were taking place at the 

mine. While it is true that the inspector may have used another road 

to gain access to the mine, it is also true that he did not check into 

the mine office before proceeding to the pit area. Superintendent 

Galloway testified that had he done so he would have been alerted to 

his presence near any areas where blasting was to be done and he could 

have radioed the blasting crew to be alert to the fact that the inspector 

was near their operation. Since it was common practice to shoot water 

out of a drilled hole with a small charge, Mr. Galloway did not believe 

that the inspector was in any precarious position. 

On the facts of this case it seems clear to me that the two "shots" 

which were fired caught the inspector off guard and surprised him. He · 

probably would not have been so surprised had he checked into the mine 

office before proceeding to the pit area. Mr. Jordan testified that 

he first observed the inspector while he was in the process of loading 

and stemming the shot holes. Since two of the holes contained water, 

Mr. Jordan, following his usual practice, dropped a one-pound charge down 

the holes to dispel the water, and he obviously did not believe the 

inspector was in any jeopardy. The "shots" actually heard by the inspector 

were those fired off by Mr. Jordan to dispel water from the holes in 

question and were not the normal "shots" used to blast overburden. 

1606 
Assuming that the only blasting operation taking place at the time 

the inspector arrived on the scene was the use of a one-pound charge 

to dispel water out of a hole, and assuming further that the term "area" 

used in section 77.1303(g) can be construed to mean "blasting area", 

then I would have to conclude that the posting of a sign or barricade was 

not required since the evidence here establishes that it was not reasonable 

to expect any injuries from concussion or flying material from a one 

pound charge. The evidence establishes that the only material dispelled 

from the holes in question was water and some dirt which was propelled 

vertically from the holes and fell in close proximity to the holes. 

However, since the standard in question requires guards, barricades, 

or posting in areas where charged holes are awaiting firing, the question 

presented is whether they were required in this case. 

The facts of this case reflect that no signs, barricades, or guards 

were in fact errected at the immediate area where the charged holes 

were located. The intent of the standard in requiring such devices is 

not only to alert persons who may wander into the area that a shot will 

be fired, but also to allow anyone in close proximity to the shot to 

seek refuge or protection against any flying debris. Although respondent 

had established that a sign was posted along one of the roads leading 

into the mine, no signs or barricades or guards were posted in the immediate 

area where the charged holes were awaiting firing. Accordingly, I conclude 

and find that a violation of section 77.1303(g) occurred and that portion 

of the citation charging a violation of this mandatory safety standard is 

AFFIRMED, 

30 CFR 77.1303(h) 

The citation charges that blasting of pit holes was being conducted 

"without ample warning given before blasts were fired and without persons 

cleared and removed or protected from concussion or flyrock in the blasting 

area". Although petitioner cited section 77.1301 when it filed a typewritten 

copy of a "legible citation", the original citation, as confirmed by 

the inspector, cited section 77.1303(h). That section requires an ample 

warning to be given before blasts are fired. It also requires that all 

persons be cleared and removed from the blasting area unless suitable 

blasting shelters are provided to protect men endangered by concussion 

or flyrock from blasting. 

It is clear from the evidence established in this case that the 

charged "shot" was not fired or blasted at the time the inspector was 

on the scene. The only "shot 11 fired was the two one-pound explosions 

to dispel water from two drilled holes. Respondent had established that 

the blasting crew had been removed to a safe distance and were standing by 

some trucks which the inspector indicated would suffice as "suitable 

shelters''. MSHA Inspector Bush testified that the men standing 130 

feet from the water holes which were blasted were at a safe distance, 

and the facts reflect that the holes which were blasted only propelled 

water vertically out of the holes and that there was no flyrock or debris 

thrown out to endanger anyone nearby. As for any warnings, I accept 

the fact that the crew had been verbally instructed to remove themselves 

160'( 
to a safe distance from the water holes. Under these circumstances, 

I conclude and find that the respondent was in compliance and that the 

petitioner has not established a violation of section 77.1303(h). 

Accordingly, that portion of the citation is VACATED. 

Size of Business and Effect.of Civil Penalties on the Respondent's 

Ability to Continue in Business. 

The parties stipulated that the respondent is a small-to-medium 

operator and that the penalties assessed will not adversely affect its 

ability to continue in business. I adopt these stipulations as my 

findings on these issues. 

History of Prior Violations 

MSHA 1 s computer print-out of prior paid civil penalty assessments 

reflects a total of 8 paid citations issued at the mine in question for 

the period June 9, 1979 through June 8, 1981. Considering the size and 

scope of respondent's mining operation, I consider this to be a good 

safety record not warranting an additional increase in any penalty 

assessments levied by me for the citations which I have affirmed. 

Negligence 

I conclude and find that the respondent should have been aware of 

the requirements of the cited safety standards, and that its failure to 

exercise reasonable care to prevent the violations in question constitutes 

ordinary negligence as to both citations which I have affirmed. 

Good Faith Compliance 

Since the violations resulted in a withdrawal order, good faith 

abatement is really not an issue. Abatement was apparently achieved by 

the inspector instructing the respondent on the proper blasting procedures. 

In any event, the inspector indicated that abatement was "normal", and 

I accept that fact. 

Gravity 

I conclude that on the facts of this case the failure to post a 

sign or otherwise guard the area where the charges were awaiting' firing 

was a nonserious violation. Here, the shot foreman had the immediate 

control of his men, had pulled them back to a safe distance, and did 

all that was reasonable to assure that no one known to be in the area 

was in jeopardy as a result of the blasting of the two water holes in 

question. 

With regard to the citation for the failure to use 36-inch fuses, 

I conclude and find that this was a serious violation in that it presented 

1608 
a possible hazard and injury to the blasting foreman and his helper 

in that the use of so short a fuse in the event of a miscalculation 

on their part during the blasting process would have shortened the time 

for them to react and to retreat to a safe area. 

Penalty Assessments 

In view of the foregoing findings and conclusions, respondent is 

assessed civil penalties for the violations which have been affirmed 

as follows: 

Citation No. Date 

855434 6/8/81 

30 CFR Sections 

77' 1303(g) 

77 .1303 (u) 

ORDER 

Assessment 

$ 25 

275 

300 

Respondent IS ORDERED to pay the civil penalties assessed in this 

matter, in the amount shown above, within thirty (30) days of the date 

of this decision, and upon receipt of payment by the petitioner these 

proceedings are DISMISSED. 

A. t-~ Koutras 

Distribution: 

Joseph T. Crawford, Esq., U.S. Department of Labor, Office of the 

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

Neil A. Reed, Esq., 203 Garden Towers, 202 Tunnelton Street, Kingwood, 

WV 26537 (Certified Mail) 

1609 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE AUG 25 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

Civil Penalty Proceedings 

Docket No. WEVA 80-516 

AC No. 46-01436-03094 

Docket No. WEVA 80-517 

AC No. 46-01436-03095 

These cases were brought by the Secretary of Labor under section 110 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, ~. 

for civil penalties for alleged violations of safety standards. 

The cases were consolidated and heard in Pittsburgh, Pennsylvania. 

Having considered the evidence and contentions of the parties, 1 find 

that the preponderance of the reliable, probative, and substantial evidence 

establishes the following: 

FINDINGS OF FACT 

1. At all pertinent times, Respondent operated Shoemaker mine, which 

produced coal for sale or use in or substantially affecting interstate 

commerce. 

The Belt Fire Alarm System 

2. On February 25, 1980, Federal Inspector Edwin Fetty, accompanied by 

Respondentts Maintenance Foreman, Gary Harvey, noticed that the monitoring 

light on the belt fire alarm system in the tailpiece 3 Left, 4 North, was 

not on, and tried to test the system by pushing the test button. This did 

not produce a warning signal, audible or visual. 

3. The fire sensor system runs on AC power. When the AC power is turned 

off, the Ni-cd batteries in the control panel provide the power to monitor the 

system for another 4 hours. After 4 hours, the system goes into a "conservation 

mode," which conserves the batteries and makes the system inoperative until the 

AC power is turned on. 

When the test was unsuccessful, Mr. Harvey told Inspector Fetty that the 

likely cause was either that the AC power was not on or that the dry cell 

battery in the alarm was dead. 

1610 
Neither tested the system with the AC power on. 

4. The inspector issued citation 627724, charging Consol with a violation 

of 30 CFR § 75.1103-11 and stating: 

The automatic fire warning device to provide both 

audible and visual warning when a fire occurs on or near 

the No. 2 conveyor belt from the 3 Left 4 North Section 

tailpiece transporting coal to the No. 1 conveyor belt is 

not maintained in an operative condition. When the proper 

test was performed the device would not give an audible or 

visual warning. 

5. The next day, Mr. Harvey talked to the electrician assigned to abate 

the alleged violation and learned that there was in fact nothing wrong with 

the system once the power was turned on. The reason for the negative test 

was that Fetty and Harvey had failed to turn on the AC power. 

6. Three Left, 4 North Section was idle from the day shift of February 22 

until the afternoon of February 27. 

Recorded Tests of Methane Monitors 

7. On February 25, 1980, Federal Inspector John Phillips issued Citations 

813295 and 813296 because 2 methane monitors were not recorded as having been 

calibrated within 31 days, as required by an MSHA policy memorandum to federal 

inspectors. These charged violations of 30 CFR § 75.313-1, which provides: 

The operator of any mine in which methane monitors 

are installed on any equipment shall establish and adopt a 

definite maintenance program designed to keep such monitors 

operative and a written description shall be available for 

inspection. At least once each month the methane monitors 

shall be checked for operating accuracy with a known methaneair mixture and shall be calibrated as necessary. A record 

of calibration tests shall be kept in a book approved by 

the Secretary. 

Section § 75.1103-1 provides: 

A fire sensor system shall be installed on each underground belt conveyor. 

Sensors so installed shall be of a type which will (a) give warning automatically 

when a fire occurs on or near such belt; (b) provide both audible and visual 

signals that permit rapid location of the fire. 

1611 
Respondent's books reported the last test of the methane monitors on 

January 5, 1980. 

8. On February 25, 1980, Inspector Fetty issued Citation 627721 because 

a· methane monitor was not recorded as having been calibrated within 31 days. 

DISCUSSION WITH FURTHER FINDINGS 

The Belt Fire Alarm System 

To establish a violation of 30 CFR § 75.1103-1, the Secretary must 

prove that the fire alarm system did not operate when properly tested. The 

Secretary concedes in his brief that if the AC power at the belt head had 

been off for more than 4 hours, the fire alarm equipment could not be 

properly tested without turning on the AC power. The evidence shows that 

the AC power had been off for far more than 4 hours, and that neither Fetty 

nor Harvey turned the AC power on to test the fire alarm system. 

There is a conflict of testimony as to the reason for the inadequate 

test: The inspector recalled that he asked Harvey to turn on the AC power 

and Harvey left to do so, but Harvey recalled that he stayed with the 

Inspector and was not requested to turn on the power, I find that the 

evidence does not preponderate to resolve this conflict in favor of the 

inspector's recollection. The government therefore did not meet its 

burden of proving a proper test of the fire alarm system. 

The evidence indicates that neither Inspector Fetty nor Mr. Harvey 

really understood the way the fire alarm system worked at the time the 

citation was written. Inspector Fetty had never seen this particular kind 

of system until February 25, 1980. Mr. Harvey was not very familiar with 

the system either, and in his testimony relied on discussions with the 

Electrical Foreman and on the manufacturer's instruction manual for knowledge 

of the system. 

Since Inspector Fetty did not fully understand how the system worked, 

he wrote a citation on a piece of equipment that was in fact operable. 

Mr. Harvey did not protest the citation or show Inspector Fetty that the 

system was in fact in working condition, because he was not familiar enough 

with the system to recognize why it had not responded to the test. 

Citations Involving Recorded Tests of Methane Monitors 

These citations charge a violation of 30 CFR § 75.313-1 relating to the 

maintenance of methane monitors. The applicable part of the regulation 

reads: 11 (A)t least once each month the methane monitors shall be checked 

for operating accuracy with a known methane-air mixture and.shall be 

calibrated as necessary. A record of calibrated tests shall be kept in a 

book approved by the Secretary." 

161.2 
The controlling question is whether the phrase "once each month" means 

each calendar month, as Respondent contends, or once every 31 days, as the 

Secretary contends. 

In MSHA v. CR&I Steel Corporation, DENV 76-62-P (June 17, 1977), pp. 4-5, 

Judge Morehouse decided that the term "monthly" in 30 CFR § 77.502-2 contains 

an ambiugity "which, when combined with the severity of the possible sanction 

for violation of a mandatory health and safety standard, fails to satisfy 

specificity standards for penalty enforcement." In a similar case, Judge 

Mesch dismissed a citation in MSHA v. CF&I Steel Corporation, DENV 77-43-P, 

(November 18, 1977), when he found that "weekly" examinations meant once a 

week, and not an interval of 7 days. Support for these interpretations is 

found in the scheme of the regulations. The regulations usually specify when 

a period is to be counted in days rather than a calendar month or week. 

For example, 30 CFR § 75.305-1 specifies that once each week means at intervals 

not to exceed 7 days and § 57.21-65 specifies not more than 7 days. 

I conclude that the phrase "once a month" in 30 CFR § 75.313-1 reasonably 

means once each calendar month. MSBA's policy memorandum is not binding 

on the operator, and stretches the meaning of the regulation beyond its plain 

meaning. 

The recent holding of the Ninth Circuit, in Phelps Dodge Corporation v. 

et aL 

There the court decided that 

a regulation was unenforceable by MSHA because: 

The regulation inadequately expresses an intention 

to reach the activities to which MSHRC applied it. 

Therefore, we join in the observation: "If a violation 

of a regulation subjects private parties to criminal or 

civil sanctions, a regulation cannot be construed to 

mean what an agency intended but did not adequately 

express." (citations omitted). Diamond Roofing Co., 

Inc. v. Occupational Safety and Health Review 

Commission, 528 F. 2d 645, 649 (5th Cir. 1976). 

The facts show that the methane monitors were tested on January 5, 1980, 

and the citations were issued February 25, 1980. Respondent still had 4 days 

to comply with the standard. In fact, before the end of February, the tests 

were made and recorded in Respondent's books. There was no violation. 

Accordingly, the regulation cannot serve as the basis for issuance of the 

citation or for the levy of the fine. 

CONCLUSIONS OF LAW 

1. · The Conunission has jurisdiction over the parties and subject matter 

of this proceeding. 

1613 
2. As to each of the citations involved, the Secretary failed to 

prove a violation. 

Proposed findings and conclusions inconsistent with the above are 

rejected. 

WHEREFORE IT IS ORDERED that this proceeding is DISMISSED. 

tJ~1?uAv~ WILLIAM FAUVER, JUDGE 

Distribution Certified Mail: 

David Street, Esq., US Department of Labor, Office of the Solicitor, 

3535 Market Street, Room 14480 ., Philadelphia, PA 19104 

Louise 

Pit 

Q. Symons, Esq., US Steel Corporation, 600 Grant St., Room 1580, 

, PA 15230 

1614 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) CIVIL PENALTY PROCEEDING 

) 

Petitioner, ) DOCKET NO. CENT 81-63-M 

v. ) 

) MINE: Buick 

AMAX LEAD COMPANY OF MISSOURI, ) 

) 

Respondent. ) 

FINAL ORDER 

The parties have filed a proposed settlement agreement. The contested 

citations and their proposed disposition are as follows: 

30 C.F.R. § Original Proposed 

Citation No. Standards Assessment Disposition 

544404 57.5-5 $40 $32 

544405 57.5-5 40 32 

The documentation filed herein presents facts required to be examined 

in assessing a civil penalty, 30 U.S.C. 820(i). I have analyzed this 

criteria and pursuant to 29 C.F.R. § 2700.30 I approve the proposed 

settlement and enter the following: 

ORDER 

1. Citation 544404 and the proposed penalty of $32 are affirmed. 

2. Citation 544405 and the proposed penalty of $32 are affirmed. 

3. The hearing scheduled for November 9, 1982 is cancelled. 

Distribution: 

James R. Cato, Esq. 

Office of the Solicitor 

United States Department of Labor 

911 Walnut Street, Room 2106 

Kansas City, Missouri 64106 

Gerald T. Carmody, Esq. 

Bryan, Cave, McPheeters & McRoberts 

500 North Broadway 

St. Louis, Missouri 63102 1615 

,;u.s. GOVERNMENT PRINTING OFFICE: 1982-361"638/4374