JANUARY 1992 

COMMISSION DECISIONS AND ORDERS 

01-10-92 

01-10-92 

01-10-92 

01-10-92 

01-10-92 

01-13-92 

01-14-92 

01-15-92 

01-23-92 

01-27-92 

01-27-92. 

01-27'"-92 

01-31-92 

Southern Ohio Coal Company 

BethEnergy Mines, Inc. 

Mettiki Coal Corporation 

Rochester and Pittsburgh Coal Co~ 

Green River Coal Company, Inc. 

Amos Hicks v. Cobra Mining Inc., et al. 

Contest of Respirable Dust Samples 

Grefco, Inc. 

Explosives Technologies International, Inc. 

Charles T. Smith v. KEM Coal· Company 

Wayne C. Turner v. New World Mining, Inc. 

United Rock Products Corporation 

Clifford Meek v. ESSROC Corporation 

ADMINISTRATIVE LAW JUDGE DECISIONS 

01-06-92 

01-08-92 

01-08-92 

01-10-92 

01-10-92 

01-15-92 

01-15-92 

01-15-92 

01-15-92 

01-17-92 

01-17-92 

01-17-92 

01-21-92 

01-21-92 

01-21-92 

01-23-92 

01-24-92 

01-28-92 

01-28-92 

01-28-92 

01-28-92 

01--30-92 

01-31-92 

Jim Walter Resources, Inc. 

S & H Mining, Inc. 

T & T Fuels Incorporated 

Old Ben Coal Company 

Old Ben Coal Company 

Henry Galvan v. New Mexico Potash Corp. 

Old Ben Coal Company 

Minutemen Coal Co., Inc. 

Shenandoah Coal Co., Inc. 

Zeigler Coal Company 

Zeigl.er Coal Company 

Southern Ohio Coal Company 

Peabody Coal Company 

David L. Stritzel v. MSHA, Charles Rath, et 

Clyde C. Cole v. Canyon Country Enterprises 

Brown Brothers Sand Company 

Zeigler Coal Company 

Gray Stone Mining, Inc. 

Anderson Equipment Company 

Blue Diamond Coal Company 

Lonnie Darrell Ross v. Shamrock Coal Co. 

Elmer Richard Couch v. Shamrock Coal Co. 

Thomas Cates empl. by Green River Coal Co. 

ADMINISTRATIVE LAW JUDGE ORDERS 

01-17-92 Contests of Respirable Dust Samples 

01-23-92 Contests of Respirable Dust .Samples 

al. 

WEVA 88-144-R Pg. 

PENN 89-277-R Pg. 

YORK 89-10-R P:g. 

PENN 88-309-R Pg. 

KENT 88-152 Pg. 

VA 89-72-D Pg. 

91-1 Pg. 

CENT 91-176-M Pg. 

CENT 90-95~M Pg. 

KENT 90-30-D Pg. 

VA 90-51-D Pg. 

WEST 91-425-M Pg. 

LAKE 90-132-DM Pg. 

SE 91-714-R Pg. 

SE 91-18 Pg. 

WEVA 92-168 Pg. 

LAKE 91-53-R Pg. 

LAKE 91-725 Pg_. 

CENT 91-191-DM . J:>g. 

LAKE 91-721 Pg. 

VA 91-415-R Pg. 

VA 91-471 Pg. 

LAKE 91--683 Pg. 

LAKE 92-15 Pg. 

WEVA 91-1766-R Pg. 

LAKE 91-344 Pg. 

LAKE 91-633-D Pg, 

WEST 91-191-DM Pg. 

SE 91-93-M Pg. 

LAKE 91-635 Pg. 

WEVA 91-1305-R Pg. 

WEVA 90-283 Pg. 

KENT 91-993-R Pg. 

KENT 91-76-D Pg. 

KENT 91-1351-D Pg. 

KENT 91-303 Pg. 

1 

17 

29 

37 

43 

50 

55 

56 

59 

67 

76 

79 

81 

83 

106 

113 

117 

148 

149 

150 

152 

154 

156 

160 

161 

164' 

168 

170 

190 

203 

221 

222 

227 

229 

232 

233 

91-1 

91-1 

Pg. 239 

Pg. 245 

JANUARY 1992 

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

Secretary of Labor, MSHA v. Grefco, Inc., Docket No. CENT 91-176-M. 

(Judge Morris, Settlement Decision of November 18, 1991 - not published) 

Kerr-McGee Coal Corporation v. Secretary of Labor, MSHA, Docket No. 

WEST 91~84-R, etc. (Judge Lasher, December 9, 1991) 

Secretary of Labor, MSHA v. United Rock Products Corporation, Docket No. 

WEST 91-425-M. (Chief Judge Merlin, Default decision of December 18, 1991) 

There were no cases filed where review was denied. 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 10, 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket Nos. WEVA 88-144-R 

WEVA 88-212 

SOUTHERN OHIO COAL COMPANY 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This consolidated contest and civil penalty proceeding arises under 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. 

(1988)("Mine Act" or "Act"), and presents two issues: (1) whether a notice 

to provide safeguards issued pursuant to 30 C.F.R. § 75.1403 is invalid if 

it addresses conditions that exist in a significant number of mines; and (2) 

whether the validity of a notice to provide safeguards is materially 

affected by the fact that it is patterned after 30 C.F.R. § 75.1403-9(a), a 

published safeguard criterion. 1 Our decision in this matter is one of· 

1 30 C.F.R. § 75.1403 repeats section 314(b) of the Mine Act, 30 

U.S.C. § 874(b), and states: 

Other safeguards adequate, in the judgment of 

an authorized representative of the Secretary (of 

Labor], to minimize hazards with respect to 

transportation of men and materials shall be 

provided. 

30 C.F.R. § 75.1403-1 sets forth general provisions regarding 

"criteria" by which authorized representatives are guided in requiring 

safeguards. Section 75.1403-l(a) provides: 

Sections 75.1403-2 through 75.1403-11 set out 

the criteria by which an authorized representative 

of the Sec'retary will be guided in requiring other 

safeguards on a mine-by-mine basis under § 75.1403. 

Other safeguards may be required. 

The procedures by which an authorized representative of the Secretary 

1 
several on this date with respect to the Secretary's issuance of safeguards. 2 

In this case, Commission Administrative Law Judge Roy J. Maurer found 

that the Secretary failed to prove that the safeguard in question was issued 

because of any conditions "peculiar" to the mine of Southern Ohio Coal 

Company ("SOCCO"), as opposed to other. mines that also have track haulage. 

11 FMSHRC 1992, 1997 (October 1989)(ALJ). Consequently, he concluded that 

the safeguard was invalid because it was not issued on a "mine-by-mine" 

basis. Accordingly, the judge vacated an order of withdrawal issued to 

SOCCO alleging a violation of the safeguard. For the reasons that follow, 

we va~ate the judge's decision and remand this case for further proceedings. 

I. 

Factual Backgroun~ and Procedural History 

On January 28, 1988, Charles Thomas, an inspector of the Department of 

Labor's Federal Mine Safety and Health Administration ("MSHA"), conducted a 

regular inspection of the Martinka No. 1 Mine, an underground coal mine 

operated by SOCCO. Inspector Thomas observed that no shelter holes were 

provided along a section of the supply track of the E-4 section. 3 He 

may issue a citation pursuant to section 75.1403 are described in 30 C.F.R. 

§ 75.1403-l(b). 

The authorized representative of the Secretary 

shall in writing advise the operator of a specific 

safeguard which is required pursuant to § 75.1403 

and shall fix a time in which the operator shall 

provide and thereafter maintain such safeguard. If 

the safeguard is not provided within the time fixed 

and if it is not maintained thereafter, a notice 

shall be issued to the operator pursuant to section 

104 of the Act. 

Section 75.1403-9 is entitled "Criteria-shelter holes," and section 

75.1403-9{a) provides: 

Shelter holes should be provided on track 

haulage roads at intervals of not more than 105 feet 

unless otherwise approved by the Coal Mine Safety 

District Manager(s). 

2 Our other safeguard decisions issued today are: BethEnergy Mines, 

Inc., 14 FMSHRC __ ,Nos. PENN 89-277-R, etc.; Mettiki Coal Corp., 14 FMSHRC 

__ ,Nos. YORK 89-10-R, etc.; and Rochester & Pittsburgh Coal Co., 14 FMSHRC 

_, Nos. PENN 88-309-R, etc. 

3 A shelter hole is an area where a miner can seek protection from 

haulage equipment, locomotives, mine cars and other vehicles traveling through 

a passageway. 
issued an order pursuant to section 104(d)(2) of the Mine Act, 30 U.S.C. 

814(d)(2), alleging a violation of a notice to provide safeguard that had 

been issued under 30 C.F.R. § 75.1403-9(a) (n. 1 supra). 

Order No. 2895348 states: 

A shelter hole is not provided along the E4 section 

supply track for a distance of 170 feet when 

measured. The area is between No. 1 block and No. 3 

block. Overcast walls are in the crosscuts left and 

right of the track. Notice to provide Safe[g]uard 

was issued No. lJF 5/23/75 .... 

Gov. Exh. 3. In issuing the order, ·Inspector Thomas also entered special 

findings that SOCCO's alleged violation was of a significant and substantial 

nature and was caused by its unwarrantable failure to comply. SOCCO 

contested the order, the Secretary proposed civil penalties, and the matter 

proceeded to an evidentiary hearing before Judge Maurer. 

The notice to provide safeguard issued at the Martinka No. 1 Mine by 

MSHA Inspector Joe Fraim on May 23, 1975, states: 

Shelter holes are not provided at 105 foot intervals 

on the 1 Left section supply track for a distance of 

400 feet. Shelter holes shall be provided on all 

track haulage roads in this mine .... 

Tr. l9, 31, 53-54; Gov. Exh. 2. Inspector Thomas testified that he had no 

knowledge of the reasons, other than the reasons stated on the fac~ of the 

safeguard itself, for the issuance of the safeguard. Tr. 54. 

Inspector Thomas testified that, if coal cars derailed in the cited 

area and a miner was then unable to escape to a shelter hole, he could be 

crushed against the wall or suffer broken bones, lacerations, amputations, 

and possibly death. Tr. 42-43. Thomas believed that the violat.ion was 

aggravated by the fact that the cited area was wet and presented a slipping 

hazard to a person running through the area to a shelter hole, and that 

visibility in the area was impeded by various factors. Tr. 28, 34, 72. 

John Metz, the general mine supervisor of the Martinka Mine and Paul 

Zanussi, the mine's accident prevention officer, agreed with Thomas that a 

shelter hole was not provided every 105 feet in the cited area, but 

maintained that certain extenuating circumstances justified the absence of 

the shelter holes. Tr. 76, 83. Messrs. Metz and Zanussi testified that a 

small shelter hole (manhole) had been made in the overcast wall in the cited 

area, which previously had been accepted by MSHA as an alternate type of 

shelter hole. Tr. 62, 79-80, 84-85. When MSHA changed its policy and no 

longer accepted such alternate shelter holes, SOCCO determined that it had 

to "shoot" approximately 30 new shelter holes in solid ribs of coal. 

Tr. 86-87. Metz testified that SOCCO had not yet shot a shelter hole in the 

cited area because it was first shooting holes in priority areas that 

received the most traffic. He stated that the citeg area received only 

3 
minimal foot and rail traffic because the area was new at the time of the 

inspection and there was not yet a need for anyone to be working in that 

location. Metz also stated that it had been his experience that tracks such 

as those in the cited area, which were used for mantrips or for carrying 

rock_dust and other supplies to working sections, were used less frequently 

than tracks that hauled coal. 

Inspector Thomas testified that it was his understanding that the 

subject safeguard notice requires shelter holes every 105 feet on every_ 

track haulage road regardless of the frequency of rail or foot traffic 

through the area or whether the mine uses a conveyor belt system to remove 

coal. Tr. 61-62. - He further _testified that the hazard at the Martinka No. 

1 Mine was no greater than the hazard a_t other track haulage mines that were 

subject to similar safeguards. Tr. 60. Of the 21 mines using track haulage 

that Thomas had inspected, each mine had a similar safeguard notice 

requiring shelter holes every 105 feet along track haulage roads. Tr. 50. 

A similar safeguard had been issued at SOCCO's Meigs No. 1, Meigs No. 2 and 

Raccoon No. 3 mines, and at the American Electric Power System's Windsor 

Coal Mine. Tr. 102, 111. Inspector Thomas testified that he could not 

recall any underground coal mine using track haulage that did not have a 

similar safeguard notice. Tr. 49. 

Preliminarily, the judge determined that the Secretary bears the 

burden of proving the validity of the underlying safeguard. The judge then 

examined the evidence to determine whether the Secretary had successfully 

met that burden. The judge placed particular emphasis on Inspector Thomas's 

testimony that each of the 21 track haulage coal mines that Thomas had 

inspected had a safeguard notice similar to the subject safeguard including 

the Windsor Coal Mine and SOCCO's Meigs No. 1, Meigs No. 2 and Raccoon No. 3 

mines. 11 FMSHRC at 1996~ The judge also relied on.Inspector Thomas's 

testimony that he could not recall a-single instance in which a safeguard 

similar to the subject safeguard had not been issued in an underground coal 

mine utilizing track haulage. Id. 

Based upon his review of the evidence, the judge found that the 

Secretary had failed to establish the validity of the underlying safeguard 

notice: 

I conclude in this case, the Secretary has failed to 

demonstrate that Safeguard No. lJF was issued on a 

"mine-by-mine" basis and more particularly, has 

failed to demonstrate that it was issued at the 

Martinka No. 1 Mine because of any peculiar 

circumstances or physical configuration of that 

mine. The safeguard had nothing whatsoever to do 

with cortditions peculiar to that mine as opposed to 

other mines that also have track haulage. 

11 FMSHRC at 1997 (emphasis added). 

After finding that the safeguard was invalid, the judge determined 

that Order No. 2895348 was improperly issued because it was based upon the 

4 
invalid safeguard. Accordingly, he vacated the order without reaching the 

issues of whether the safeguard had been violated or whether the inspector's 

special findings were valid. The Commission granted the Secretary's 

petition for discretionary review. Oral argument in this matter was heard 

on February 21, 1991, along with argument in the other safeguard cases. 

II. 

Disposition of Issues 

A. The Secretary's authority to issue safeguards addressing 

conditions that exist in a significant number of mines 

1. The Secretary's general safeguard authority 

The Secretary's general authority to issue safeguards is derived from 

section 314(b) of the Mine Act, 30 U.S.C. § 874(b). That provision is 

contained in a section of the statute that includes interim mandatory safety 

standards for hoisting and mantrips in underground coal mines. Section 314 

is one of several provisions among the interim safety standards of Title III 

of the Mine Act that were carried over from the.Coal Mine Health and Safety 

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

Unlike other provisions of Title III of the Mine Act, section 314 

contains few specific mandatory standards. The specific mandatory standards 

in section 314 concern hoists, brakes on rail equipment and automatic 

couplers. 

The legislative history of section 314(b) is scant. When introduced 

in the House and the Senate, the bills that became the 1969 Coal Act both 

contained the provision now found at section 314(b). The House Report 

states simply that.this provision "authorizes the inspector to require other 

safeguards as necessary to reduce the hazards of transporting men and 

materials." H. Rep. No. 563, 9lst Cong., 1st Sess. 55 (1969), reprinted in 

Senate Subcommittee on Labor, Committee on Labor and Public Welfare, 94th 

Cong., 1st Sess., Part I Legislative History of the Federal Coal Mine Health 

and Safety Act of 1969 at 1085 ("Legis. Hist."). The Senate Conference 

Report provides: 

Subsection (b) authorizes the inspector to require 

other safeguards for transporting men and materials, 

such as those in the present advisory code. It is 

expected, however, that efforts will be made to 

improve upon these also. 

Legis. Hist. at 1619. 4 

4 The reference to the "present advisory code" is to the Federal Mine 

Safety Code for Bituminous Coal and Lignite Mines (Part I - Underground 

Mines), published by the Bureau of Mines, U.S. Department of the Interior, 

5 
On March 28, 1970, the Secretary of the Interior promulgated 

regulations at 30 C.F.R. § 75.1403 to implement section 314(b). 5 As 

originally promulgated, section 75.1403-1 set forth the Secretary's general 

interpretation of authority under section 314(b). The regulation stated, in 

pertinent part: 

(a) The sections in the § 75.1403 series 

describe safeguards that ar.e required to minimize 

commonly recognized hazards with respect to the 

transportation of men and materials. Authorized 

representatives of the Secretary shall be guided by 

these sections in requiring the provision of 

safeguards under § 75.1403. 

(b) An authorized representative of the 

Secretary shall in writing advise the operator of a 

specific safeguard to be provided pursuant to 

§ 75.1403 and shall fix a time within which the 

safeguard shall be provided. If the safeguard is 

not provided within the time fixed, a notice 

[citation] shall be issued to the operator pursuant 

to § 104 of the Act. 

35 Fed. Reg. 5221, 5250 (March 28, 1970) (emphasis added). 

These regulations established specific safeguards designed to minimize 

"commonly recognized" transportation hazards. The regulations required the 

Secretary's inspectors to advise an operator in writing if a specific 

safeguard must be complied with at a particular mine. The regulations also 

provided that enforcement action would be taken against the operator if the 

requirements of the safeguard were not met within the time fixed by the 

inspector. 

Later that year, the Secretary amended these regulations to designate 

the specific regulatory "safeguards" in sections 75.1403-2 through -11 as 

the "criteria" by which inspectors were to be guided in requiring 

safeguards; to authorize inspectors to require safeguards for hazardous 

conditions not covered by a specific criterion; and to make clear that 

safeguards were to be issued on a "mine-by-mine" basis. 30 C.F.R. 

§ 75.1403-1; 35 Fed. Reg. 17923 (November 20, 1970). Section 75.1403-1 also 

on October 8, 1953. This code was advisory only and contained extensive 

provisions directed to improving safety in the transportation of men and 

materials. See Coal Mine Health and Safety: Hearings on S. 335 et al. 

before the Subcommittee on Labor of the Senate Committee on Labor and Public 

Welfare, Part 3, 9lst Cong. 1st Sess. 1359-1404 (1969) ("Coal Act 

Hearings"). 

5 The 1969 Coal Act was enforced by the Secretary of the Interior while 

the Mine Act is enforced by the Secretary of Labor. We use the term 

"Secretary" herein to refer to either official, as appropriate. 

6 
stated that, in addition to issuing safeguards based on the published 

criteria, "[o]ther safeguards may be required." Section 314(b) was not 

changed in the Mine Act ancl, in all pertinent respects, the implementing 

regulations at 30 C.F.R, 75.1403 remain the same. 

The Secretary argues in her brief that the only limitation placed on 

the Secretary in issuing safeguards is that they address hazards relating to 

the transportation of miners and material. S. Br. at 5. Further limits· on 

the Secretary's powers to issue safeguards, however, are drawn in the 

statutory language and in the implementing regulations. A safeguard may be 

issued to minimize transportation hazards only in underground coal mines. 

An inspector's decision to issue a notice to provide safeguards must be 

based on his consideration of the specific conditions at the particular 

mine. The requirement that the inspector identify a specific transportation 

hazard at a mine before issuing a safeguard flows from the language of 

section 314(b), authorizing the issuance of a safeguard that is "adequate, 

in the judgment of an authorized representative of the Secretary," to 

minimize a transportation hazard. (Emphasis added.) Section 75.1403-l(a) 

further clarifies that consideration of the specific conditions giving rise 

to a hazard requires inspectors to issue safeguards on a mine-by-mine basis. 

Further, safeguards may be enforced at a mine only after the operator is 

advised in writing that a specific safeguard will be required as of a 

specified date. Section 75.1403-l(b). MSHA's current Program Policy Manual 

("Manual") states that the criteria of sections 75.1403-2 through -11 are 

not mandatory standards: 

It must be remembered that these criteria are not 

mandatory. If an authorized representative of the 

Secretary determines that a transportation hazard 

exists and the hazard is not covered by a mandatory 

regulation, the authorized representative must issue 

a safeguard notice, allowing time to comply before a 

104(a) citation can be issued .... 

Manual, Volume 5, Part 75, pp. 125-26. 6 An inspector's use of the 

safeguard provision is not limited by the statute, the regulations, or the 

Manual to hazards that are "unique" or "peculiar" to a mine. 

6 The title page of the Manual states that the "MSHA Program Policy 

Manual is a compilation of the Agency's policies on the implementation and 

enforcement of the Federal Mine Safety and Health Act of 1977 and Title 30 

Code of Federal Regulations and supporting programs." The United States Court 

of Appeals for the D.C. Circuit has stated that, while the Manual may not be 

binding on MSHA, "we consider the MSHA Manual to be an accurate guide to 

current MSHA policies and practices." Coal Employment Project v. Dole, 889 

F.2d 1127, 1130 n.5 (D.C. Cir. 1989). (The Commission has indicated that, as 

an adjudicative body, it is not necessarily bound by statements in the Manual, 

although in appropriate circumstances, it may choose to defer to and apply 

such pronouncements. See, ~. King Knob Coal Co., 3 FMSHRC 1417, 1420 (June 

1981).) 

7 
A safeguard, however, must address a transportation hazard that is 

actually present in the mine in question. An MSHA. inspector possesses 

authority to decide whether a safeguard should be issued at a mine without 

consulting with representatives of the operator. In order to issue a notice 

to provide safeguards, an inspector must determine that there exists at a 

mine an actual transportation hazard that is not covered by a mandatory 

standard; that a safeguard is necessary to correct the hazardous condition; 

and the corrective measures that the safeguard should require. 

The Commission has held that the language of section 314(b) of the Act 

is broad and "manifests a legislative purpose to guard against all hazards 

attendant upon haulage and transport[ation] in coal mining." Jim Walter 

Resources. Inc., 7 FMSHRC 493, 496 (April 1985). The Commission also has 

observed that, while other mandatory safety and health standards are adopted 

through the notice-and-comment rulemaking procedures of section 101 of the 

Act, 30 U.S.C. § 811, section 314(b) extends authority to the Secretary to 

create on a mine-by-mine basis what are, in effect, mandatory standards, 

without the formalities of rulemaking. Southern Ohio Coal Co., 7 FMSHRC 

509, 512 (April 1985)("SOCCO I"). The Commission has recognized that "this 

unusually broad grant of regulatory authority must be bounded by a rule of 

interpretation more restrained than that accorded promulgated standards." 

Id. 

2. Validity of safeguards addressing conditions existing 

at a significant number of mines 

Whether a notice to provide safeguards issued under section 75.1403 is 

invalid if it addresses conditions that exist in a significant number of 

mines is .a question of first impression for the Commission. 7 The key 

question in this case is whether, even if issued on a mine-by-mine basis, a 

safeguard is invalid if it deals with a hazardous condition that is commonly 

encountered in coal mines. In other words, if an inspector evaluates the 

specific conditions at a particular mine, determines that a discrete 

transportation hazard exists at that mine, and issues a safeguard notice 

requiring the elimination of the hazard, is that safeguard rendered invalid 

if similar safeguards have been issued at a significant number of other 

mines? 

a. Statutory considerations 

SOCCO contends that Congress's grant of authority to the Secretary in 

section 314(b), when considered in conjunction with sections 101 and 30l(a) 

of the Mine Act, 30 U.S.C. s§ 811 and 86l(a)(infra), reflects an 

understanding that safeguards will not be of general applicability. SOCCO 

maintains that "Congress chose to grant authority to issue safeguards not 

with the intent that it was creating an exception to the requirements of 

section 101 [and 30l(a)], but on the basis that such safeguards would be 

individualistic and peculiar to a given mine." SOCCO Br. 9. 

7 This issue was raised in Southern Ohio Coal Co., 10 FMSHRC 963 (August 

1988)("SOCCO II"), but was not then resolved by the Commission. 

8 
Section 101 of the Mine Act sets forth the procedures the Secretary 

must follow to "develop, promulgate, and revise as may be appropriate, 

improved mandatory health or safety standards for the protection of life and 

prevention of injuries in coal or other mines." 30U.S.C. § 8ll(a). 

Section 30l(a) of the Mine Act states that the interim mandatory safety and 

health standard of Title III shall be applicable to all underground coal 

mines "until superseded in whole or in part by improved mandatory safety 

standards" promulgated by the Secretary under section 101 of the Mine Act. 

30 U.S.C. § 86l(a). SOCCO reads these two provisions to require the 

Secretary to promulgate safety standards for commonly occurring 

transportation hazards. It argues that Congress did not intend to exempt 

hazards pertaining to the transportation of men and materials from the 

rulemaking requirements of section 101. 

It is important to understand the genesis of the rulemaking provisions 

referred to by SOCCO. The predecessor to the 1969 Coal Act, the Federal 

Coal Mine Safety Act Amendments of 1952, 30 U.S.C. § 451 e_t seq. (repealed), 

did not authorize the Secretary of the Interior to promulgate improved 

safety standards. The 1969 Coal Act, like the Mine Act, contained interim 

safety standards for underground coal mines and empowered the Secretary to 

promulgate improved safety standards. The rulemaking provisions were 

included, in large measure, to afford the Secretary flexibility to improve 

upon the interim standards as experience and technology developed. As 

stated in the legislative history, the rulemaking provisions of the Coal Act 

"give the Secretary the flexibility needed to-devise improved -standards as 

technology changes, as new safety programs develop, and to provide 

protection against hazards not covered by [the interim standards]." S. Rep. 

No. 411, 9lst Cong., 1st Sess. 86 reprinted in Legis. Hist. at 212. 8 

Moreover, section 30l(b) of the Mine Act., 30 U.S.C. § 86l(b), contains 

language from the Coal Act that compels the Secretary "to develop and 

promulgate new and improved standards promptly that will provide increased 

protection to the miners." 

Although Congress empowered and directed the Secretary to provide 

increased protection for miners through the promulgation of improved safety 

standards, Congress did not provide any benchmark against which to judge 

whether improved standards are required .. Rather, Congress left that 

determination to the Secretary. The rulemaking provi.sions of sections 101 

and 301 of the Mine Act do not circumscribe the authority to issue 

safeguards granted to the Secretary in section 314(b). Thus, we conclude 

that, in general, it is within the Secretary's sound exercise of discretion 

to issue mandatory standards or to issue safeguards for commonly encountered 

transportation hazards. 

8 The Secretary of the Interior, in a letter to Senator Javits supporting 

the 1969 Coal Act, stated that he wanted "to emphasize the need for the 

Congress to enact, not only the very detailed interim health and safety 

standards in the bill, but also provide, .. the necessary flexibility in this 

Department to change, upgrade and modify these standards as experience and 

technology develop." Coal Act Hearings, Part 5, at 1585 (letter of Russell 

Train, Acting Secretary of the Interior, June 16, 1969). 

9 
As concluded above, section 314(b) enables an MSHA inspector to issue 

a safeguard to ensure the safety of miners when the inspector observes a 

transportation hazard that is not addressed by an existing mandatory 

standard. We discern nothing in the Mine Act or its legislative history 

expressly requiring that the hazard be unique to the mine at issue and 

nothing prohibiting the use of similar safeguards to address similar unsafe 

conditions that may exist at a number of mines. 

SOCCO's argument that the Secretary actually engages in rulemaking 

when she issues safeguards for commonly encountered hazards ~ails to 

acknowledge the unique authority given to the Secretary in section 314(b). 

In our judgment, SOCCO's argument addresses the legislative wisdom'of the 

broad authority conferred upon the Secretary by Congress in section 314(b). 

We agree that the Secretary might have issued mandatory standards to cover 

the hazard involved in this case but, on the basis of the current record, we 

are not prepared to say that her fa~lure to do so was an abuse of 

discretion. The Secretary has set forth a reasoned basis for using 

safeguards to address transportation hazards at underground coal mines. The 

Secretary cites the flexibility that safeguards provide to maximize 

transportation safety at mines and the authority conferred by section 314 of 

the Act to issue safeguards "as necessary" to reduce transportation hazards. 

In general, we f1nd this rationale well founded in the statute. 

Additionally, courts rarely compel an agency to institute rulemaking 

proceedings, even where an interested person has filed a petition for 

rulemaking. See, ~. Arkansas Power & Light Co. v. ICC, 725 F.2d 716, 723 

(D.C. Cir. 1984)("[C]ourt will compel an agency to institute rulemaking 

proceedings only in extremely rare instances"); Bethlehem Steel Corp v. EPA, 

782 F.2d 645, 655 (7th Cir. 1986)("When an agency has discretion as to 

whether or not to undertake rulemaking, the courts cannot tell it how to 

exercise that discretion.") The United States Court of Appeals for the 

District of Columbia Circuit has acknowledged the "broad discretionary 

powers possessed by administrative agencies to promulgate (or not 

promulgate) rules, and the narrow scope of review to which the exercise of 

that discretion is subjected .... " wwHT. Inc. v. FCC, 656 F.2d 807, 818 

(1981). 

b. Precedent 

SOCCO relies on the D.C. Circuit's decision in Zeigler Coal Co. v. 

Kleppe, 536 F.2d 398 (1976), and on the Commission's decision in Carbon 

County Coal Corp., 7 FMSHRC 1367 (September 1985) in challenging the 

validity of generally applicable safeguards. We believe that these cases, 

which dealt with ventilation plans, are distinguishable and do not support 

the operator's position. In Zeigler, the court determined that, because 

section 303 of the 1969 Coal Act set forth mine ventilation standards, the 

ventilation plans required by section 303(0) were conceived for a narrow 

purpose: to provide requirements relating to the particular circumstances of 

10 
a given mine. 536 F.2d at 407. 9 The Court indicated that if the Secretary 

were to attempt to compel such plans to include requirements of a general 

nature that should have been formulated as mandatory standards under section 

101, the operator might be able to show that the Secretary had abused the 

ventilation plan authority conferred by section 303(0). Id. The D.C. 

Circuit, in UMWA v. Dole, 870 F.2d 662, 672 (D.C. Cir. 1989), repeated its 

warning, originally made in Zeigler, that "the Secretary should utilize 

mandatory standards for requirements of universal application." The Dole 

court, however, also reiterated its earlier pronouncements in Zeigler 

regarding "the considerable authority of the Secretary to determine what 

'should more properly have been formulated as a mandatory standard under the 

provisions of§ 101. '" 870 F.2d at 671. 

We agree with the Secretary that ventilation plans were conceived for 

a narrower purpose than safeguards. Comprehensive interim standards were 

established by· Congress for ventilation. Section 314 of the Mine Act does 

not set forth extensive standards for hoisting and mantrips, but subsection 

(b) empowers inspectors to issue "other safeguards" as necessary to 

eliminate hazards associated with transportation. In addition, Congress 

gave MSHA inspectors comparatively more authority in issuing safeguards for 

transportation hazards than in imposing ventilation requirements in mine 

plans. Further, although roof control plans must provide the same level of 

protection as that provided by the plan criteria, even if a particular 

criterion is not included in the plan, Dole, 870 F.2d at 670, there is no 

similar requirement that the level of protection of safeguard criteria be 

provided at any mine. Section 75.1403-l(b) makes clear that the safeguard 

criteria are not binding on any operator unless, and until, that operator is 

given notice, in a written safeguard from an authorized representative of 

the Secretary, that one or more of the criteria are applicable to its mine. 

MSHA's Manual reiterates that "these criteria are not mandatory." Manual, 

Volume 5, at 125-26. Thus, the Court's logic in Zeigler with respect to the 

mine-particularity of ventilation plans is not transferable to safeguards. 

SOCCO maintains that in order to construe sections 101 and 314 

harmoniously, we must view section 101 as a limitation on the authority 

conferred by section 314 of the Mine Act. In Zeigler, however, the Court 

held that section 101 of the 1969 Coal Act was violated only if the 

Secretary exceeded the scope of her authority under section 303(0) of that 

statute. 536 F.2d at 406-07. In the present case, section 101 of the Mine 

Act is violated only if a safeguard exceeds the scope of the authority 

c_onferred by Congress in section 314(b). As discussed above, we believe 

that issuing a safeguard for a hazardous cortdition that is not limited to 

one mine or a small number of mines is within the scope of ·the Secretary's 

9 Section 303(0) of the Coal Act was carried over_as section 303(0) of 

the Mine Act, 30 U.S.C. § 863(0), and provides in pertinent part that a 

"ventilation system and methane and dust control plan and revisions thereof 

suitable to the conditions and the mining system of the coal mine and approved 

by the Secretary shall be adopted by the operator and set out in printed 

form .... " 

11 
authority, provided the inspector issues the safeguard based on his 

evaluation of the specific conditions at a particular mine and on his 

determination that such conditions create a transportation hazard in need of 

correction. 

The Commission's Carbon County decision is consistent with our holding 

today. In Carbon County, the Commission found that a ventilation plan 

provision that MSHA sought to incorporate into an operator's plan "was the 

result of a rote application of [an MSHA] District ... guideline and was not 

based upon the particular conditions" at the mine. 7 FMSHRC at 1373. 10 

The Commission held that MSHA could prevail and have the subject provision 

included in the mine plan if it established that "particular conditions at 

the mine warrant the inclusion of the [subject] provision in the ventilation 

plan." 7 FMSHRC at 1375. Thus, it was the rote application of the subject 

provision of the ventilation plan to the mine in question,. pursuant to MSHA 

District policies, that caused the Commission to invalidate the provision. 

MSHA had failed to evaluate whether the subject provision or the operator's 

alternative would best promote safety at the mine in question. Similarly, a 

safeguard cannot be blindly imposed but must be based on the inspector's 

determination that a specific hazard exists at a particular mine. 

In sum, we conclude that the mine-by-mine requirement with respect to 

issuance of safeguards does not mean that a safeguard must be based on a 

hazard "unique" or "peculiar" to any given mine or small number of mines. 

Rather, a safeguard may properly be issued for a commonly encountered 

hazard, so long as such safeguard addresses a specific transportation hazard 

actually determined by an inspector to be present and in need of correction 

at the mine in question. Therefore, in the present proceeding, the fact 

that the safeguard was based on a common hazard encountered in a number of 

other mines does not, by itself, invalidate .the safeguard. 

B. Safeguards based upon promulgated criteria 

The Secretary also argues that, because the safeguard in this case was 

based upon section 75.1403-9(a), one of the promulgated criteria, the 

safeguard is valid even though the hazard may be found at a significant 

number of mines. Thus, the Secretary asserts that, even if the Commission 

holds that a safeguard may not be issued for a commonly encountered hazard, 

a safeguard issued for such a hazard is valid if it is based upon one of the 

promulgated criteria. She bases her argument on the D.C. Circuit's decision 

in Dole. In another case decided this date, BethEnergy Mines, Inc., 

14 FMSHRC __ , Docket Nos. PENN 89-277-R, etc., we have concluded that the 

validity of a safeguard is not affected by the fact that it is based on a 

promulgated criterion in section 75.1403 and that the principles with 

respect to roof control criteria set forth in Dole are not relevant to cases 

involving safeguards. Slip op. at 7-8. For the reasons given in BethEnergy, 

10 The Dole decision interpreted Carbon County "to make the narrow point 

that mine operators are entitled to have alternative procedures evaluated by 

the district manager to determine if they achieve the safety objective set out 

in MSHA regulations and policy." 870 F.2d at 672. 

12 
we hold that a safeguard must be based on the specific conditions at a mine, 

regardless of whether the safeguard is patterned after a promulgated 

criterion, and that an otherwise invalid safeguard is not made valid simply 

because it is based on a promulgated criterion. 

C. Burden of proof 

The judge held that the Secretary bears the burden of establishing the 

validity of the underlying safeguard. 11 FMSHRC at 1995. The Secretary 

argues that the judge's allocation of this burden was erroneous. We agree 

with the judge. 

The Mine Act does not specifically state who has the burden of 

demonstrating the validity of a safeguard. An operator may challenge a 

safeguard's validity in a contest or civil penalty proceeding arising from 

the issuance of a citation or order based on that safeguard. The Secretary 

is required to prove that the safeguard provided the operator with 

sufficient notice of the "nature of the hazard at which it [was] directed 

and the conduct required of the operator to remedy such hazard." SOCCO I, 

7 FMSHRC at 512. 

This Commission, as the administrative adjudicatory body under the 

Mine Act, possesses considerable discretion in allocating the burden of 

proof, so long as the allocation is rational and consistent with the 

policies of the Mine Act. See generally Donovan v. Stafford Const. Co., 732 

F.2d 954, 958-59 (D.C. Cir. 1984)(approving Commission's burden of proof 

allocations in discrimination cases arising under the Act). One important 

factor in allocating the burden of proof is which party possesses knowledge 

of the conditions giving rise to the safeguard. We believe that the 

Secretary would be in the best position to produce such evidence. While the 

mine operator may have more extensive knowledge of the conditions in its 

mine, the Secretary would be far more knowledgeable as to why her authorized 

representative issued the safeguard. 

Another important factor to consider is whether a challenge is in the 

nature of an affirmative defense to the charge of a violation. In general, 

the Commission, with Court approval, has required the operator to bear the 

burden of proof as to affirmative defenses. See, ~. Stafford Const., 732 

F.2d at 959, approving in relevant part, Secretary on behalf of Pasula v~ 

Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (October 1980), rev'd on 

other grounds sub. nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 

(3rd Cir. 1981). However, an allegation by an operator that an inspector 

did not base a safeguard on the specific conditions actually present in its 

mine is not an affirmative defense. Rather, proof of specific mine 

conditions is part of the Secretary's prima facie case as to the validity of 

the safeguard. We hold that it would be appropriate and consistent with the 

purposes of the Mine Act to require the Secretary to prove that the 

inspector issued the safeguard based on an evaluation of the specific 

conditions at the mine and the determination that such conditions created a 

transportation hazard in ne.ed of correction. Plac:ing this burden on the 

Secretary is consistent with the Commission's holding in SOCCO I, requiring 

the Secretary to prove that the safeguard adequately identified the nature 

13 
of the hazard ~nd the conduct required of the operator to remedy the hazard. 

This allocation of the burden of proof does not require the Secretary 

to prove a negative. For example, she is not required to produce evidence 

demonstrating that a safeguard was not issued by rote application of an MSHA 

guidel1ne rather than on a mine-by-mine basis. The Secretary is required to 

demonstrate only that the inspector evaluated the specific conditions at the 

particular mine and determined that a safeguard was warranted in order to 

address a transportation hazard. In rebuttal, the operator would be free to 

offer evidence that the safeguard was not based on conditions present at its 

mine or that the safeguard was routinely applied without consideration of 

the conditions at its mine. 

We note that testimony concern~ng issuance of a safeguard may not be 

available or necessary in all cases. The safeguard in the present matter 

was issued in 1975. Nevertheless, in the absence of testimony, the 

Secretary may still be able to demonstrate that the safeguard was validly 

issued. The language of the safeguard itself may prove that the safeguard 

was issued to address specific conditions found at the mine, and that the 

safeguard comports with the requirements of SOCCO I. 

D. Validity of the safeguard in issue 

Judge Maurer concluded that the Secretary failed to demonstrate that 

the underlying safeguard in this case was issued on a "mine-by-mine" basis 

because he found that the safeguard "had nothing whatsoever to do with 

conditions peculiar to [the Martinka No. 1 Mine] as opposed to other mines 

that also have track haulage." 11 FMSHRC at 1997 (emphasis added). As 

discussed above, we reject the mine-peculiar view of the nature of the 

Secretary's safeguard authority. Thus, the safeguard in question is valid 

if it was based on the specific conditions at SOCCO's mine and on a 

determination by the inspector that those conditions created a 

transportation hazard in need of correction, notwithstanding the fact that 

similar safeguards may have been issued at other mines. 

III. 

Conclusion 

For the foregoing reasons, we vacate the judge's decision and remand 

this proceeding to the judge to evaluate the validity of the safeguard 

consistently with the principles discussed in this decision. 

The judge should first determine whether the safeguard was issued 

based on specific conditions at the Martinka No. 1 Mine that the inspector 

found constituted a transportation hazard in need of correction. If the 

judge concludes that the safeguard was validly issued, he should then 

determine whether the safeguard was violated and whether the order of 

withdrawal was properly issued. Taking into consideration the principles 

set forth in the Commission's decision in SOCCO I, the judge should 

determine whether the safeguard notice "identif[ied] with specificity the 

nature of the hazard at which it [was] directed and the conduct required of 

14 
the operator to remedy such hazard." 7 FMSHRC at 512. If the judge 

determines that there was a violation, he should then consider whether the 

violation was of a significant and substantial nature and was caused by 

SOCCO's unwarrantable failure to comply with the safeguard, and assess an 

appropriate civil penalty. 

Notwithstanding the foregoing legal determinations, we find it 

appropriate to conclude this decision by questioning, from the standpoint of 

policy, whether the proliferation of safeguards is the most effective method 

of addressing the more commonly encountered hazards in underground coal mine 

transportation. Transportation hazards are a major cause of injuries and 

fatalities in underground coal mines, but have rarely been the subject of 

15 
rulemaking. We note that in the Department of Labor's most recent 

Semiannual Regulatory Agenda, the Secretary has recognized the need for 

specific mandatory safety standards to protect miners from the hazards 

associated with the hoisting and transportation of persons and materials. 

56 Fed. Reg. 53584 (October 21, 1991). There, the Secretary states that 

"[t]ransporting persons and material has been a leading cause of fatal 

accid~nts in underground coal mines" and that she "has very few mandatory 

standards addressing haulage hazards." Id. Because the use of individual 

safeguards, issued on a mine-by-mine basis, may not adequately protect all 

affected miners from haulage related hazards, we strongly suggest that the 

safety of underground coal miners would be better advanced by the 

promulgation of mandatory safety standards aimed at eliminating 

transportation hazards. 

Distribution 

David A. Laing, Esq. 

Porter, Wright, Morris & Arthur 

41 South High Street 

C~lumbus, Ohio 43215 

Carl C. Charneski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Roy Maurer 

Federal Mine Safety & Health Review 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

Richard V. 

Arlene Holen, Commissioner 

~--'flu.__~ L. Clair Nelson, Commissioner 

Commission 

16 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

BETHENERGY MINES, INC. 

v. 

SECRETARY OF. IABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FL.OQR 

WASHINGTON, D.C. 20006 

January 10, 1992 

Docket Nos. PENN 89-277-R 

PENN 89-278-R 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This case, arising under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), presents the 

following issues: (1) whether the validity of a notice to provide safeguards 

issued pursuant to 30 C.F.R. § 75.1403 is affected by the fact that it is 

patterned after 30 C.F.R. § 75.1403-5(g), a published safeguard criterion; 1 

1 30 C.F.R. § 75.1403 repeats section 314(b) of the Mine Act, 30 

U.S.C. § 874(b), and states: 

Other safeguards adequate, in the judgment of 

an authorized representative of the Secretary [of 

Labor], to minimize hazards with respect to 

transportation of men and materials shall be 

provided. 

30 C.F.R. § 75.1403-1 sets forth general provisions regarding 

"criteria" by which authorized representatives are guided in requiring 

safeguards. Section 75.1403-l(a) provides: 

Sections 75.1403-2 through 75.1403-11 set. out 

the criteria by which an authorized representative 

of the Secretary will be guided in requiring other 

safeguards on a mine-by-mine basis under § 75.1403. 

Other safeguards may be required. 

The procedures by which an authorized representative of the Secretary 

may issue a citation pursuant to secti_on 75.1403 are described in 30 C.F.R. 

§ 75.1403-l(b). 

17 
(2) whether the Secretary of Labor should be collaterally estopped from 

litigating an issue regarding the issuance of certain relevant citations; 

(3) whether BethEnergy Mines, Inc. ("BethEnergy") failed to comply with the 

subject notice to provide safeguards; (4) whether BethEnergy's alleged 

violations of the notice to provide safeguards were of a significant and 

substantial nature; and (5) whether two citations alleging BethEnergy's 

violations of the notice to provide safeguards were duplicative. 

Commission Administrative Law Judge William Fauver determined that 

although the subject notice to provide safeguards may have addressed hazards 

commonly encountered at other mines, it was not rendered invalid because it 

was based on a published safeguard criterion. 12 FMSHRC l61, 768-69 (April 

1990)(ALJ). Interpreting the safeguard broadly, the judge found that 

BethEnergy had violated the safeguard and that the violations were of a 

significant and substantial nature .. 12 FMSHRC at 769- 70. The judge also 

concluded that collateral estoppel should not be applied against the 

Secret~ry. 12 FMSHRC at 770. Finally, the judge determined that the two 

citations issued against BethEnergy for its alleged violations were not 

duplicative. Id. 

For the reasons explained below, we affirm the judge's determination 

that collateral estoppel should not be applied against the Secretary in this 

case. We apply herein the general principles concerning the Secretary's 

power to issue safeguards announced in our companion decision issued this 

date in Southern Ohio Coal Co., 14 FMSHRC ~-•Nos. WEVA 88-144-R, etc. 

The authorized representative of the Secretary 

shall in writing advise the operator of a specific 

safeguard which is required pursuant to § 75.1403 

and shall fix a time in which the operator shall 

provide and thereafter maintain such safeguard. If 

the safeguard is not provided within the time fixed 

and if it is not maintained thereafter, a notice 

shall be issued to the operator pursuant to section 

104 of the Act. 

30 C.F.R. § 75.1403-5 is entitled "Criteria-Belt conveyors" and section 

75.1403-5(g) provides: 

A clear travelway at least 24 inches wide 

should be provided on both sides of all belt 

conveyors installed after March 30, 1970. Where 

roof supports are installed within 24 inches of a 

belt conveyor, a clear travelway at least 24 inches 

wide should be provided on the side of such support 

farthest from the conveyor. 

18 
( "SOCCO"). 2 We vacate the remainder of. the judge's decision, and remand 

this case for further proceedings. 

I. 

Factual Background and Procedural History 

On June 13, ·1984, Francis Wier, an inspector of the Department of 

Labor's Mine Safety and Health Administration ("MSHA"), issued a notice to 

provide safeguard to BethEnergy at its Mine No. 60, an underground coal mine 

located in Pennsylvania. The notice states: 

A clear travelway of at least 24 inches wide was not 

provided on both sides of the belt conveyor in the 

longwall section MMU 031. Starting at the tipple 

and extending inby for approximately 400 ft. For 

the first 200 ft. the clearance changed from the 

left side back to right and management had the area 

fenced of[f] and a crossunder had been provided. 

The second area was approximately 300 ft. inby the 

tipple was on the left sid[e] and clearance was 

between 23 inches and 15 inches for approximately 

10-15 feet in two different locations. 

This is a notice to provide safeguard that requires 

at least 24 inches of a clear travelway be provided 

on both sides of all belt conveyors installed after 

March 30, 1970 at this mine. 

Joint Exh. 3. 

More than five years later, on September 7, 1989, MSHA Inspector John 

Mull conducted a regular inspection at the Livingston portal at the EightyFour Complex, an underground coal mine that includes the area formerly known 

as Mine No. 60. As he wal~ed along the No. 3 and No. 4 belt conveyors, he 

observed that there was not a continuous 24-inch clearance on both sides of 

the belts because rib material, concrete blocks, and cribs obstructed the 

"tight" (i.e., narrow) travelway beside the belts. Tr. 44-45, 58. Based 

upon his observations, Inspector Mull issued two citations, pursuant to 

section 104(a) of the Mine Act, 30 U.S.C. § 814(a), each alleging a 

violation of the safeguard notice issued by Inspector Wier. Tr. 47. 

Citation No. 3088080, issued for the alleged violative condition 

located beside the No. 4 belt, states: 

At least 24 inches of a clear travelway was 

2 The present decision is one of four issued this date dealing with 

safeguard issues. In addition to SOCCO, supra, the other decisions are 

Mettiki Coal Corp., 14 FMSHRC ~-• Nos. YORK 89-10-R, etc.; and Rochester & 

Pittsburgh Coal Co., 14 FMSHRC _,Nos. PENN 88-309-R, etc. 

19 
not provided on both sides of the no. 4 belt ... as 

.the side not normally walked was obstruct[ed] with 

material from the ribs and other material at 

numerous locations. 

Citation No. 3088162, issued for the alleged violative condition existing 

beside the No. 3 belt, states: 

At least 24 inches of a clear travelway was 

not provided on both sides of the entire no. 3 belt, 

as the side not normally walked was obstruct[ed] 

with rib material, crib, block and other material at 

numerous locations. 

Inspector Mull designated both alleged violations to be of a 

significant and substantial nature because he believed that the obstructions 

presented tripping and slipping hazards that could cause a miner to suffer 

strains, sprains, and bruises. Furthermore, he found that if persons 

tripped on the obstructions, they could fall against the belt and catch 

their arms in the roller, which could be permanently disabling or fatal. 

BethEnergy contested both citations, and the matter proceeded to a hearing 

before Judge Fauver. 

At the hearing, Roger Uhazie, the subdistrict manager for MSHA, 

testified that there are 47 act~ve mines covered by the MSHA Monroeville 

Sub-District Office. Tr. 33-34. Mr. Uhazie testified that all of the large 

miries' in the subdistrict have a similar safeguard requiring 24 inches of 

clear·ance on both sides of belt conveyors. Tr. 31. Five mines that have 

not been.issued a similar safeguard do not have belt conveyors or are small 

mines. Tr·. 34, 37. 

In his decision, the judge focused on the validity of the underlying 

safeguard. Preliminarily, he acknowledged that he had previously 

interpreted Zeigler Coal Co. v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976), to 

stand for the proposition that. safeguards addressing commonly encountered 

hazards. in mines were invalid because they we.re not mine-specific and should 

have been the subject of a mandatory standard. 12 FMSHRC at 766. 

The judge then explained that in United Mine Workers of America v. 

Dole, 870 F.2d 662 (D.C. Cir. 1989), the United States Court of Appeals for 

the District of Columbia Circuit clarified its earlier holding in Zeigler. 

The judge stated: 

As so clarified, the Zeigler decision is 'a warning 

that the Secretary should utilize mandatory 

standards [by formal rulemaking] for requirements of . 

universal application,' but it does not preclude the 

Secretary from 'requiring that generally-applicable 

plan approval criteria or their equivalents be 

incorporated into mine plans.' The Court's 

reasoning for the latter conclusion has particular 

significance here. 

20 
12 FMSHRC at 767, citing Dole, 870 F.2d at 672. The judge interpreted the 

Court's reasoning to mean that the Secretary would not circumvent formal 

rulemaking procedures by requiring incorporation of generally applicable 

roof control provisions in plans if those provisions were based upon 

criteria that had been promulgated in accordance with notice-and-comment 

rulemaking procedures. 12 FMSHRC at 767-68. 

The judge then concluded that the roof control plan criteria reviewed 

in Dole and the _safeguard criteria at sections 75.1403-2 through -11 were 

similar in that both were promulgated in accordance with section 101 of the 

Act, 30 U.S.C. § 811, and that neither was enforceable until it was 

incorporated into an actual plan or safeguard. The judge summarized: 

I hold that if an inspector's safeguard notice is 

based on a published criterion (in 30 C.F.R. 

§§ 75.1403-2 through 75.1403-11), using the same or 

substantially the same language as the criterion, 

then (1) the safeguard is valid even if the hazard 

is of a general rather than a mine-specific nature, 

and (2) the safeguard is not subject to the strict 

construction rule announced by the Commission in 

Southern Ohio Coal Co., [7 FMSHRC 509 (April 1985)), 

but should be interpreted in the same manner as any 

other promulgated safety standard. 

12 FMSHRC at 769. 

Based upon the foregoing, the judge found the safeguard in question to 

be valid because it was patterned upon section 75.1403-S(g), a published 

criterion, and he proceeded to interpret the safeguard broadly. 12 FMSHRC 

at 770. Finding that the language of the safeguard gave reasonable notice 

that the walkway beside the conveyor belt should be clear, the judge 

affirmed the citations describing obstructions in the walkway. Id. The 

judge also concluded that collateral estoppal should not be applied against 

the Secretary in this matter. Id. 

The Commission granted BethEnergy's petition for discretionary review. 

Oral argument in this matter was heard on February 21, 1991, along with 

argument in the other safeguard cases. 

II. 

Disposition of Issues 

A. Validity of underlying safeguard 

1. The Secretary's general safeguard authority 

The central issue in this case is the validity of the underlying 

safeguard. In its companion decision issued this date in SOCCO, supra, the 

Commission addressed the extent of the Secretary's power to issue 

safeguards. We reviewed the text and legislative history of section 314(b) 

21 
of the Mine Act, 30 U.S.C. § 874(b) (see n.l supra), which confers upon the 

Secretary the general authority to issue safeguards. We reaffirmed the 

Commission's view, first expressed in Southern Ohio Coal Co., 7 FMSHRC 509, 

512 (April 1985)("SOCCO I"), that section 314(b) is an unusually broad grant 

of regulatory authority to the Secretary that permits her to issue on a 

mine-by-mine basis what are, in effect, mandatory standards dealing with 

transportation hazards. 

The Commission rejected the proposition that a notice to provide 

safeguard is invalid if it addresses a hazard that exists in a significant 

number of mines. We noted the considerable authority of the Secretary to 

determine what should properly be formulated as mandatory standards, and we 

held that the rulemaking provisions of the Mine Act, sections 101 and 301, 

30 U.S.C. § 861, do not circumscribe the Secretary's authority to issue 

safeguards under section 314(b). Rather, we held' that a safeguard may 

properly be issued to deal with commonly encountered transportation hazards, 

provided it is based on a determinatjon by the inspector of a specific 

transportation hazard existing at a particular mine. We made clear, 

however, that a safeguard may not properly be issued by rote application of 

general MSHA policies, irrespective of the specific conditions at a given 

mine. We also discussed the Court's opinion in Zeigler Coal Co. v. Kleppe, 

536 F.2d 378 (D.C. Cir. 1976), and the Commission's opinion in Carbon County 

Coal Corp., 7 FMSHRC 1367 (September 1985), both of which dealt with the 

mine ventilation plan adoption and approval process, and concluded that 

these cases are distinguishable. Finally, we allocated to the Secretary the 

burden of proving that a safeguard was issued on the basis of the specific 

conditions at a particular mine. Notwithstanding the legal conclusions 

reached in SOCCO, we also questioned, from the standpoint of policy, whether 

the proliferation of safeguards is the most effective method of addressing 

the more commonly encountered hazards in underground coal mine 

transportation, and we strongly suggested that the safety of underground 

coal miners would be better advanced by the promulgation of mandatory safety 

standards aimed at eliminating such hazards. SOCCO, 14 FMSHRC at~~• slip 

op. at 15-16. 

2. Validity of safeguard based on published safeguard 

criterion 

The Secretary primarily argues that a safeguard addressing a commonly 

encountered hazard is nonetheless valid. The Secretary argues alternatively 

that, if a safeguard cannot validly be issued for a commonly encountered 

hazard, a safeguard issued for such a hazard is nonetheless valid if it is 

based upon one of the promulgated safeguard criteria set forth in 30 C.F.R. 

§§ 75.1403-2 through 75.1403-11. The Secretary relies upon Dole, 870 F.2d 

662, to support this position. 

In ruling that a safeguard dealing with a commonly encountered hazard 

may properly be issued if it is based on a published safeguard criterion, 

the judge also relied heavily on Dole. In Dole, the United Mine Workers of 

America ("UMWA") brought an action asserting that the level of protection 

afforded by the Secretary's new roof plan regulations, which include roof 

control plan criteria, had been reduced. In its determination of whether 

22 
the new regulations (30 C.F.R. §§ 75.204(a) & (b), & 75.213 (1990)) afforded 

the same level of protection to miners as the predecessor regulations (30 

C.F.R. §§ 75.200-7(a), 75.200-12, 75.204, 75.204-1 and 75.200-14 (1987)), 

the Court examined whether the predecessor regulations constituted 

"mandatory standards," since only such mandatory standards are included 

within the scope of the "no-less protection rule." 870 F.2d at 667; 55 Fed. 

Reg. 4592 (February 8, 1990). The "no-less protection rule," embodied in 

the Act's grant of rulemaking power to the Secretary (30 U.S.C .. § 8ll(a)), 

authorizes the Secretary to replace existing mandatory standards only if the 

new standards provide at least the same level of protection as the old 

standards. See 870 F.2d at 664. 

The Court concluded that the predecessor regulations constituted 

mandatory standards and, therefore, were subject to the "no-less protection 

rule." 870 F.2d at 672. The Court explained that the predecessor 

regulations required that a certain level of protection be met by all plans, 

even if some individual criteria were not adopted in a specific plan. 

870 F.2d at 670. 

The Court rejected the argument of i.ntervenor American Mining Congress 

("AMC") that roof control plans were intended to contain only mine-specific 

provisions and that generally applicable provisions were invalid and not 

subject to the "no-less protection rule." 870 F.2d at 669. The Court found 

that Congress intended roof control plans to afford comprehensive protection 

against roof falls and, therefore, that they could properly contain 

provisions that might be appropriate at many mines as well as provisions 

that might be inappropriate at other mines. 870 F.2d at 670. The Court 

indicated that the AMC's argument was based upon an apparent misconstruction 

of Zeigler and Carbon County, supra. The Court interpreted Zeigler and 

Carbon County to stand only for the proposition that "the Secretary could 

abuse her discretion by utilizing plans rather than explicit mandatory 

standards to impose general requirements if by so doing she circumvented 

procedural requirements for establishing mandatory standards laid down in 

the Mine Act." 870 F.2d at 671-72. 

The Court further explained that the Secretary is not precluded from 

requiring general plan provisions that would achieve an "overall level of 

miner protection on all pertinent aspects of roof control," but that the 

Secretary "should utilize mandatory standards for requirements of universal 

application."· 870 F.2d at 672. The Court acknowledged that the Secretary 

possesses considerable authority to determine what hazards should be dealt 

with through the promulgation of mandatory standards under section 101 of 

the Mine Act, 30 U.S.C. § 811. 870 F.2d at 671. 

We believe that conclusions with regard to criteria that are drawn 

from the roof control plan process are not applicable to cases involving 

safeguards. A roof control plan must provide the same level of protection 

as that afforded by the plan criteria, even if a certain roof plan criterion 

is not included in a particular plan. 30 C.F.R. § 75.200-6 (1987); Dole, 

870 F.2d at 670. There is no similar requirement with respect to the 

safeguard criteria. Section 75.1403-l(b) makes clear that the safeguard 

criteria are not binding on any particular operator unless, and until, that 

23 
operator is given notice, in a written safeguard from an authorized 

representative of the Secretary, that one or more of the criteria are 

applicable to its mine. 30 C.F.R. § 75.1403-l(b). MSHA's Program Policy 

Manual (the "Manual") reiterates "that these criteria are not mandatory." 

Manual, Volume V, Part 75, p. 125. 3 

As we concluded in SOCCO, a safeguard is valid only if it is based on 

a determination by the inspector that a transportation hazard exists at a 

particular mine. The fact that a safeguard is based on a published 

criterion does not; by itself, establish its validity. In this regard, the 

judge erred when he concluded that the safeguard criteria "may be used as 

safeguards even though they are applied at many mines and are not minespecific" because they were promulgated in accordance with section 101 of 

the Act. 12 FMSHRC at 769. The judge reached this conclusion by 

interpreting Dole to mean that the published roof control criteria 

constituted mandatory standards because they were promulgated in accordance 

with notice-and-comment rulemaking procedures. Id. quoting, 870 F.2d at 

670 & 671. We disagree with the judge's interpretation of Dole. The Court 

reached the conclusion that the published criteria constituted mandatory 

standards not because individual criteria were promulgated but, instead, 

because overall they mandated a particular level of protection. The Court 

stated that roof control plans can be approved by MSHA "only if they either 

conformed to the criteria or 'provide[d] no less than the same measure of 

protection to the miners' as the criteria .... MSHA was not only empowered 

but required to withhold approval of the plan until the mine operator 

incorporated the criterion. Thu~ the criteria ... themselves constituted a 

mandatory standard laying down a required level of protection for miners 

that had to be met by all plans." 870 F.2d at 670 (emphasis in original) 

(citations omitted). The roof control plan criteria in Dole cannot 

appropriately be compared to safeguard criteria because, as noted above, 

there is no similar requirement that all mines provide the level of 

protection that would result from imposition of the safeguard criteria. 

Hence, we reject the view that a safeguard is valid merely because it is 

based on a published safeguard criterion and, as explained above, we do not 

read Dole to compel by analogy the contrary result. 

3 The title page of the Manual states that the "MSHA Program Policy 

Manual is a compilation of the Agency's policies on the implementation and 

enforcement of the Federal Mine Safety and Health Act of 1977 and Title 30 

Code of Federal Regulations and supporting programs." The D.C. Circuit has 

stated that while the Manual may not be binding on MSHA, "we consider the MSHA 

Manual to be an accurate guide to current MSHA policies and practices." Coal 

Employment Project v. Dole, 889 F.2d 1127, 1130 n.5 (D.C. Cir. 1989). (The 

Commission has indicated that, as an adjudicative body, it is not necessarily 

bound by statements in the Manual, although in appropriate circumstances, it 

may choose to defer to and apply such pronouncements. See, ~. King Knob 

Coal Co., 3 FMSHRC 1417, 1420 (June 1981).). 

24 
3. Judicial construction of safeguard based on a published 

criterion 

We also reject the judge's determination that a safeguard notice based 

on a promulgated safeguard criterion need not be strictly construed by the 

Commission, but may be interpreted more broadly in a manner similar to the 

proper construction of any other mandatory standard. As we discussed in 

SOCCO I (7 FMSHRC at 512), and reaffirm today, a safeguard must be 

interpreted narrowly in order to balance the Secretary's unique authority to 

require a safeguard and the operator's right to fair notice of the conduct 

required of it by the safeguard. The fact that a safeguard is based on a 

published criterion does not alter this fundamental consideration. A 

criterion does not provide clear notice until it is embodied·in a safeguard 

issued to the operator. The focus of judicial inquiry is on whether the 

safeguard is based on specific conditions at a mine and, as to those 

specific conditions, whether it affords the operator fair notice of what is 

required or prohibited by the safeguard. 

In sum, we hold that the fact that a notice to provide safeguard is 

based upon a promulgated safeguard criterion is not,· in itself, 

determinative of the validity of the safeguard. As explained in SOCCO, the 

validity of a safeguard depends on whether it was based on the inspector's 

evaluation of specific conditions at the mine in question and a 

determination that those conditions created a specific transportation hazard 

in need of the remedy prescribed. Because the judge in this case failed to 

consider the manner in which the safeguard was issued, we vacate the judge's 

determination that the safeguard was valid. We remand for further 

consideration in light of the present decision, our companion decision 

issued today in SOCCO, and the principles of construction announced in 

SOCCO I, 7 FMSHRC at 512. 

Since we vacate the judge's determination that the underlying 

safeguard was valid, we need not reach at this juncture the issue of whether 

BethEnergy violated the safeguard, whether the alleged violations were 

properly designated significant and substantial, and whether the citations 

issued were duplicative. The judge may reach those issues again on remand, 

as appropriate. 

The single issue remaining is whether the judge erred in concluding 

that collateral estoppel should not be applied against the Secretary in this 

proceeding. 

B. Collateral Estoppel 

BethEnergy contends that the Secretary should be collaterally estopped 

from relitigating the issue of whether she possesses the authority to issue 

and enforce a safeguard on an MSHA District-wide basis, without 

consideration of the specific conditions at a given mine, because she 

previously litigated and lost the same issue against BethEnergy in 

BethEnergy Mines. Inc., 11 FMSHRC 942 (May 1989)(ALl) (BethEnergy I"). The 

judge determined that the Secretary should not be collaterally estopped in 

this proceeding because the safeguard in question in BethEnergy I was based 

25 
upon a different criterion than the criterion invoked here and, further, 

that BethEnergy I was decided "without the benefit of the [Dole] decision." 

12 FMSHRC 761, 770 (April 1990). 

The Secretary counters.that the judge correctly rejected BethEnergy's 

collateral estoppel argument because there are significant differences in 

the safeguard issues in BethEnergy I and the present case. The Secretary 

considers the most significant difference to be that this case involves the 

validity of a safeguard based upon a published criterion, while in 

BethEnergy I the safeguard :was greatly modified from the language of a 

published criterion. Finally, the Secretary argues that BethEnergy I 

involved a different mine and that the safeguard addressed a different 

hazard. 

Under the doctrine of collateral estoppel, a judgment on the merits in 

a prior suit may preclude the relitigation in a subsequent suit of any 

issues actually litigated and determined in the prior suit. See, ~. 

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979); Bradley v. 

Belva Coal Co., 4 FMSHRC 982, 990 (June 1982). Collateral estoppel does not 

apply in instances in which there has been a change in controlling facts or 

applicable legal principles between the two cases. See, ~. Montana v. 

United States, 440 U.S. 147, 158-59 (1979); United States v. Stauffer 

Chemical Co., 464 U.S. 165, 169 (1984). A change in controlling facts may, 

in effect, create a new issue in the second suit that was not litigated or 

adjudicated in the prior suit. lB J. Moore, Moore's Federal Practice ~0.448 

(2d ed. 1984). Identity of issue is a ~undamental element that must be 

satisfied before collateral estoppel may be applied. Continental Can Co .. 

U.S.A. v. Marshall, 603 F.2d 590, 594 (7th Cir. 1979). 

As discussed above, the fact that a safeguard is based upon a 

published criterion does not necessarily affect its validity or the manner 

in which it is to be judicially construed. Accordingly, we reject the 

Secretary's contention that the issues in the two proceedings differ 

significantly merely because the safeguard in the present proceeding is 

founded on a published criterion. Likewise, we reject the judge's apparent 

determination that there was a change in legal principles between BethEnergy 

i and the present case because BethEnergy I was decided without the benefit 

of Dole. Dole was in fact decided before BethEnergy I. 

Nonetheless, we agree with the Secretary that the judge correctly 

rejected BethEnergy's collateral estoppel argument. We conclude that 

collateral estoppel should not be applied against the Secretary in this 

case, in part, because BethEnergy did not prove identity of issue in view of 

the different controlling facts in BethEnergy I and the present case. 

In BethEnergy I, the judge found that the evidence was undisputed that 

the same safeguard had been issued at all mines with track haulage in MSHA 

District 3, that these safeguards were uniformly based on a sample furnished 

by MSHA's District 3 Office, and that the standardized modification language 

was applied to _all track haulage mines in District 3, regardless of the 

conditions in any particular mine. See 11 FMSHRC at 943. Here, the 

evidence was presented that the same safeguard requiring 24 inches of 

26 
clearance on both sides of conveyor belts had not been issued to all mines 

in the relevant MSHA subdistrict with belt conveyors. Small mines in the 

subdistrict did not receive the safeguards. Tr. 31. BethEnergy has not 

shown that there was no change in controlling facts between BethEnergy I and 

this case, and therefore, has not proven identity of issue. 

More importantly, however, we reject BethEnergy's collateral estoppel 

argument because we find it to be irrelevant to the disposition of the 

issues before the Commission in this case. As noted, BethEnergy seeks to 

apply collateral estoppel to prevent the Secretary from litigating the issue 

of "whether the Secretary has the authority to issue and epforce a safeguard 

pursuant to 30 C.F.R. § 75.1403 on a District-wide basis without 

consideration of the specific conditions at the mine." BE Br. at 24. The 

Secretary is not attempting to litigate that issue. In fact, it appears 

that the Secretary agrees that a safeguard may be issued only after a 

representative of the Secretary considers the specific conditions at a mine. 

See, ~. Oral Arg. Tr. at 26. Thus, because the Secretary does not 

dispute the issue that BethEnergy seeks to estop her from litigating, 

collateral estoppel would have no effect on the resolution of the issues 

before the Commission .. 

III. 

Conclusion 

For the reasons set forth above, we affirm, in result, the judge's 

decision that collateral estoppel should not be applied against the 

Secretary in this case, vacate the remainder of the judge's decision, and 

remand this case for further consideration. 

With respect to the issue of whether the underlying safeguard is 

valid, the judge should set forth findings and conclusions as to whether the 

Secretary proved that the disputed safeguard was based on the judgment of 

the inspector as to the specific conditions at BethEnergy's Mine No. 60 and 

on a determination by the inspector that a transportation hazard existed 

that was to be remedied by the action prescribed in the safeguard. Taking 

into consideration the principles announced in SOCCO I, the judge should 

27 
determine whether the safeguard notice "identif[ied] with s.pec.ifi.c~ty. t-he 

nature of the hazard at which it [was] directed and the conduct required of 

the operator to remedy such hazard." 7 FMSHRC at 512. If the judge finds 

the safeguard to have been validly issued, he should resolve the question of 

whether BethEnergy violated the safeguard. The remaining issues are to be 

reconsidered as appropriate to the judge's other determinations. 

Distribution 

R. Henry Moore, Esq. 

Buchanan Ingersoll 

600 Grant Street, 58th 

Pittsburgh, PA 15219 

Floor 

Carl C. Charneski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Richard V. Backley, Commissioner 

~d,d·Wb J~oy7X 

A~-e ne Holen, Commission.er 

~ '} L- I f' 

. ~· I . f (_j_Y_~ . 

L. Clair Nelson, Commissioner 

PENN 89-277-R 

PENN 89-278-R 

Administrative Law Judge William Fauver . . 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 28 
FED~RAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6Tl:f FLOOR 

WASHINGTON·, D.C. 20006 

January 10, 1992 

SECRETARY OF IABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. Docket Nos. YORK 89-10-R 

YORK 89-26 

METTIKI COAL CORPORATION 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This consolidated contest and civil penalty proceeding, arising under 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. 

(1988) ("Mine Act" or "Act"), presents the following issues: (1) whether a 

notice to provide safeguard issued pursuant to 30 C.F.R. § 75.1403 is valid if 

it addresses conditions that exist at a significant number of mines; 

(2) whether the validity of a notice to provide safeguard is affected by the 

fact that it is patterned after 30 C.F.R. § 75.1403-lO(e), a published 

safeguard criterion; and (3) whether the Secretary of Labor should be 

collaterally estopped from litigating the issues in this case. 1 Our decision 

1 30 C.F.R. § 75.1403 repeats section 314(b) of the Mine Act, 

30 U.S.C. § 874(b), and states: 

Other safeguards adequate, in the judgment of an 

authorized representative of the Secretary [of Labor], 

to minimize hazards with respect to transportation of 

men and materials shall be provided. 

30 C.F.R. § 75.1403-1 sets forth general provisions regarding "criteria" 

by which authorized representatives are guided in requiring safeguards. Section 

75.1403-l(a) provides: 

Sections 75.1403-2 through 75.1403-11 set out the 

criteria by which an ·authorized representative of the 

Secretary will be guided in requiring other safeguards 

on a m:i.ne-by-mine basis under § 75.1403. Other 

safeguards may be required. 

The procedures by which an authorized representative of the Secretary may 

29 
in this matter is one of several issued on this date with respect to the 

authority of the Secretary of Labor to issue safeguards. 2 

Commission Administrative Law Judge William Fauver concluded that the 

Secretary was collaterally estopped from litigating the issues pertaining to 

validity of a safeguard raised in this case, because the Secretary litigated 

and lost.on the same issues against a different mine operator in BethEnergy 

Mines, Inc., li FMSHRC 942 (May 1989)(AI..J)("BethEnergy I"). The judge, 

relying on BethEnergy I, also held, on the merits, that the citation charging 

a violation of the safeguard and the underlying safeguard were invalid. 

12 FMSHRC 92 (January 1990)(AI..J). For the reasons that follow, we reverse the 

judge's decision in part, vacate it in part and remand this case for further 

proceedings. 

I. 

Factual Background and Procedural History 

On November 1, 1988, MSHA Inspector Charles Wotring inspected the 

Mettiki Mine in Garrett County, Maryland. He observed an empty and unattended 

Eimco diesel-powered, self-propelled personnel carrier parked in a crosscut 

off of the main E-2 track about 20 feet from the base of a slight incline. 

The personnel carrier was equipped with two brake systems: service brakes used 

during normal operation and a parking brake designed to prevent the carrier 

from moving when parked. The parking brake was engaged, but the personnel 

carrier was not secured by stopblocks, derails or chain-type car holds. 

issue a citation pursuant to section 75.1403 are described in 30 C.F.R. 

§ 75.1403-l(b). 

The authorized representative of the Secretary 

shall in writing advise the operator of a specific 

safeguard which is required pursuant to § 75.1403 and 

shall fix a time in which the operator shall provide and 

thereafter maintain such safeguard. If the safeguard is 

not provided within the time fixed and if it is not 

maintained thereafter, a [citation] shall be issued to 

the operator pursuant to section 104 of the Act. 

30 C.F.R. § 75.1403-10 is entitled "Criteria-Haulage; general" and section 

75.1403-lO(e) provides: 

Positive-acting stopblocks or derails should be 

used where necessary to protect persons from danger of 

runaway haulage equipment. 

2 The other safeguard decisions issued today are: Southern Ohio Coal 

Company, 14 FMSHRC ~~•Nos. WEVA 88-144-R, etc.; BethEnergy Mines. Inc., 

14 FMSHRC ~~•Nos. PENN 89-277-R, etc.; and Rochester & Pittsburgh Coal Co., 

14 FMSHRC __ , Nos. PENN 88-309-R, etc. 

30 
Inspector Wotring issued the citation to Mettiki because he concluded 

that securing the carrier with only the parking brake was insufficient to 

comply with the notice to provide safeguard that had been in effect at the 

mine since June 1980. Wotring believed that the safeguard, as subsequently 

modified, required track-mounted haulage equipment to be secured with a 

stopblock, equipped with derails, or chained to the rail to prevent runaway 

movement. The citation stated in part: 

The White Knight No. 2 personnel carrier was parked on 

the E-2 main line track incline, unattended and 

unsecured to prevent runaway. No chain or other means 

was provided to prevent runaway of this equipment. 

Gov. Exh. 22. The inspector designated the alleged violation as being of a 

significant and substantial nature. Wotring also found Mettiki's negligence 

to be moderate. 

The underlying notice to provide safeguard had been issued by MSHA 

Inspector Michael Evanoff on June 1, 1980, at the Gobbler Knob Mine (now part 

of the Mettiki Mine) and provided: 

Positive acting stopblocks or derails are not being 

used near the bottom of the slope track haulage to 

protect persons from danger of runaway haulage 

equipment. Trackmen regularly extend the track 

haulage at this area which lies on an approximate 17 

degree grade. This is a notice to provide safeguards 

requiring in this mine that positive acting stopblocks 

or derails shall be used where necessary to protect 

persons from danger of runaway haulage equipment. 

Gov. Exh. 2 3 . 

The safeguard was modified on several occasions, most recently on May 

11, 1988, to read as follows: 

Safeguard 0629279 issued 6-1-80 is hereby modified in 

the requirements to read: Positive acting stopblocks, 

derails or chain type car holds shall be used to 

secure or prevent runaway of track mounted haulage 

equipment. Other devices not specifically designed 

for such purpose are not acceptable, such as skid 

retarders, post or crib blocks crossed over rails of 

any design in front/rear of haulage equipment, wooden 

chocks under wheels or jill pokes of any design. 

Gov. Exh. 14. 

The notice to provide safeguard was patterned after 30 C.F.R. § 75.1403-

lO(e), which states: 

Positive-acting stopblocks or derails should be used 

31 
where necessary to protect persons from danger of 

runaway haulage equipment. 

This notice to provide safeguard, as modified, was essentially the same 

as a safeguard that was invalidated by Commission Administrative Law Judge 

Gary Melick in BethEnergy I, supra. In that case, the judge found that "all 

of these safeguards regarding the use of positive acting stopblocks or derails 

in [MSHA's] District 3 were uniformly modified to include language prohibiting 

the use of certain types of stopblocks," and that "this standardized language 

was applied to all track haulage mines in District 3, regardless of the 

conditions in any particular mine." 11 FMSHRC at 943. Judge Melick concluded 

that "[s]ince it is undisputed that the original safeguard in this case, as 

well as the subsequent modifications, were issued on a district-wide basis 

without regard to the specific conditions at [the mine] they were not properly 

issued." 11 FMSHRC at 948. The Secretary did not appeal the judge's decision 

in BethEnergy I and it became a final decision of the Commission by operation 

of the statute. Section 113(d)(l) of the Mine Act, 30 U.S.C. § 823(d)(l). 

In his decision in the present case, Judge Fauver vacated the safeguard 

and the citation. The judge noted that in BethEnergy I, Judge Melick 

determined that MSHA had issued safeguards requiring the use of positive 

acting stopblocks or derails to all track haulage mines in MSHA District 3, 

regardless of the conditions at any particular mine. Judge Fauver held that, 

inasmuch as this case involves the same MSHA District and the same 

standardized safeguard, the Secr~tary was collaterally estopped from 

relitigating Judge Melick's findings in this case. 12 FMSHRC at 95. Judge 

Fauver, relying on BethEnergy I, also held, on the merits, that the underlying 

safeguard was invalid. Id. The Commission granted the Secretary's petition 

for discretionary review. Oral argument in this matter-was heard on February 

21, 1991, along with argument in the other safeguard cases. 

II. 

Disposition of Issues 

A. The Secretary's safeguard authority 

The central issue in this case is the validity of the underlying 

safeguard. In its companion decision issued this date, Southern Ohio Coal 

Co., 14 FMSHRC __ ,Nos. WEVA 88-144-R, etc. ("SOCCO"), the Commission 

addressed the extent of the Secretary's authority to issue safeguards under 

section 314(b) of the Mine Act. 30 U.S.C. § 874(b) (See n.l supra). We 

reviewed the text and legislative history of that section and reaffirmed the 

Commission's view, first expressed in Southern Ohio Coal Co., 7 FMSHRC 509, 

512 (April 1985)("SOCCO I"), that section 314(b) is an unusually broad grant 

to the Secretary of regulatory authority permitting her to issue, on a mineby-mine basis, what are, in effect, mandatory standards dealing with 

transportation hazards. 

The Commission rejected the proposition that a notice to provide 

safeguard is invalid if it addresses a hazard that exists in a significant 

number of mines. We noted the considerable authority of the Secretary to 

32 
determine what should properly be formulated as mandatory standards, and we 

held that the rulemaking provisions of the Mine Act, section~ 101 and 301, do 

not circumscribe the Secretary's authority to issue safeguards under section 

314(b). Rather, we held that a safeguard may properly be issued to deal with 

commonly encountered transportation hazards, provided it is based on a 

determination by the inspector of a specific transportation hazard exist:lng at 

a particular mine. We made clear, however, that a safeguard may not properly 

be issued by rote application of general MSHA policies, irrespective of the 

specific conditions at a given mine. We also discussed the Court's opinion in 

Zeigler Coal Co. v.· Kleppe, 536 F.2d 398 (D.C. Cir. 1976), and the 

Commission's opinion in Carbon County Coal Corp., 7 FMSHRC 1367 (September 

1985), both of which dealt with the mine ventilation plan adoption and 

approval process, and concluded that these cases are distinguishable. 

Finally, we allocated to the Secretary the burden of proving that a safeguard 

was issued on the basis of the specific conditions at a particular mine. 

Notwithstanding the legal conclusions reached in SOCCO, we also questioned, 

from the standpoint of policy, whether the proliferation of safeguards is the 

most effective method of addressing the more commonly encountered ha~ards in 

underground coal mine transportation, and we strongly suggested that the 

safety of underground coal miners would be better advanced by the promulgation 

of mandatory safety standards aimed at eliminating such hazards. SOCCO, 

14 FMSHRC at ~~• slip op. at 15-16. 

In BethEnergy Mines. Inc., 14 FMSHRC -.~•Nos. PENN 89-277-R, etc. 

("BethEnergy"), also issued this date, we concluded that the validity of a 

safeguard is not affected by the fact that it is based on a promulgated 

criterion in section 75.1403, and that the principles with respect to roof 

control plan criteria set forth in the D.C. Circuit's decision in UMWA v. 

Dole, 870 F.2d 662 (D.C. Cir. 1989) are not relevant to cases involving 

safeguards. BethEnergy, slip op. at 7-8. For the reasons set forth in 

BethEnergy,. we hold that a safeguard must be based on the specific conditions 

at a mine, regardless of whether the safeguard is patterned after a 

promulgated criterion, and that an otherwise invalid safeguard is not made 

valid simply because it is based on a promulgated criterion. 

B. Validity of the safeguard at issue 

Judge Fauver adopted Judge Melick's reasoning in BethEnergy I and held 

that the safeguard was invalid. In BethEnergy I, Judge Melick, having 

determined that all of the mines with track haulage in MSHA District 3 had 

been issued the same safeguard, regardless of the conditions in any particular 

mine, invalidated the safeguard on that basis. 

In SOCCO, we rejected the "mine-peculiar" view of the Secretary's 

safeguard authority. In BethEnergy, we held that a safeguard must be based on 

the specific conditions at a mine, regardless of whether the safeguard is 

patterned after a promulgated criterion. Thus, consistent with these 

decisions, the safeguard in question in this case is valid, notwithstanding 

the fact that similar safeguards were issued for similar hazards at a number 

of other mines in MSHA District 3, if it was actually based on the specific 

conditions at Mettiki's mine and on a determination by the inspector that 

those conditions created a transportation hazard in need of correction. 

33 
The judge's analysis is not con.sistent with .the foregoing framework. 

Accordingly, we vacate his determination with regard to the validity of the 

safeguard and remand this proceeding to the judge for reevaluation of the 

safeguard's validity within the framework discussed in SOCCO, BethEnergy and 

this decision. 

C. Collateral Estoppel 

Mettiki also contends that the Secretary should be collaterally estopped 

from denying that $tandardized safeguards similar to the safeguard at issue in 

this case had been issued to all track haulage mines in MSHA District 3, 

regardless of the conditions in any particular mine, because she previously 

litigated that issue unsuccessfully in BethEnergy I. Judge Fauver, citing 

Parkland Hosiery Co. v. Shore, 439 U.S. 322 (1979), and Blonder-Tongue 

Laboratories. Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971), 

determined that, because the Secretary had litigated and lost that issue 

against a different operator, she was estopped from relitigating it in this 

case. 12 FMSHRC at 95. 

Relying on United States v. Mendoza, 464 U.S. 154 (1984), the Secretary 

argues that ~he judge erred because collateral estoppel cannot be applied 

against the federal government in cases involving nonmutual parties. She 

contends that since Mettiki was not a party to the earlier litigation, the 

Secretary cannot be collaterally estopped from litigating the validity of the 

safeguard at issue in this case. 

In Mendoza, the Supreme Court held that the federal government is not 

bound by an adverse decision of a United States District Court "in a 

[subsequent] case involving a litigant who was not a party to the earlier 

litigation." 464 U.S. at 162. The Court stated that the federal government 

is "more likely than any private party to be involved in lawsuits against 

different parties which nonetheless involve the same legal issues." 464 U.S. 

at 160. The Court concluded that the application of nonmutual estoppel 

against the federal government would force the government "to appeal every 

adverse decision in order to avoid foreclosing further review." 464 U.S. at 

161. 

34 
We conclude that collateral estoppel should not be applied against the 

Secretary in this case because Mettiki was not a party in BethEnergy I. The 

Secretary should not be bound in the present proceeding by Judge Melick's 

decision in an earlier case involving a different mine operator. The cases 

cited by the judge to support his determination that collateral estoppel 

should be applied are inapposite. In both Parklane Hosiery and BlonderTongue, the Court authorized the use of collateral estoppel to bar 

relitigation of issues that had been previously litigated in a prior case even 

though the party seeking estoppel was not a party in the previous litigation. 

Those cases, however, did not involve the federal government. The Court in 

Mendoza disapproved the use of nonmutual collateral estoppel against the 

federal government. 464 U.S. at 160-63. Mettiki has not directed our 

attention to any precedent or compelling reason justifying a departure from 

Mendoza. We hold, therefore, that the judge erred in ruling that the 

Secretary was collaterally estopped from litigating the validity of the 

safeguard in this case. 

III. 

Conclusion 

For the reasons set forth above, we reverse the judge's decision that 

collateral estoppel should be applied against the Secretary in this case, 

vacate the judge's decision that the safeguard is invalid, and remand this 

case for further consideration. 

35 
The judge should set forth findings and conclusions as to whether the 

Secretary proved that the disputed safeguard was based on the judgment of the 

inspector as to the specific conditions at the Mettiki Mine and on the 

inspector's determination that a transportation hazard existed that was to be 

remedied by the action prescribed in the safeguard. Taking into consideration 

the principles announced in SOCCO I, the judge shoul.d determine whether the 

safeguard notice "identif[ied] with specificity the nature of the hazard at 

which it [was] directed and the conduct required of the operator to remedy 

such hazard." 7 FMSHRC at 512. If the judge finds the safeguard to have been 

validly issued, he should resolve the question of whether Mettiki violated the 

safeguard. If the judge determines that there was a violation, he should then 

consider whether the violation was of a significant and substantial nature and 

assess an appropriate civil penalty. 

Distribution 

Susan E. Chetlin, Esq. 

Mettiki Coal Corporation 

2525 Harrodsburg Road, Suite 

Lexington, Kentucky 40504 

Carl C. Charneski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

300 

Richard V. Backley, Commissioner 

Arlene Ho en, Commissioner 

'J-{i~ IL~~ L. Clair Nelson, Commissioner 

Administrative Law Judge William Fauver 

Federal Mine Safety a·nd Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 3 6 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON·, D.C. 20006 

January 10, 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket Nos. PENN 88-309-R 

PENN 88-310-R 

ROCHESTER AND PITTSBURGH 

COAL COMPANY 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This case, arising under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), presents the issue of 

whether a notice to provide safeguard issued pursuant to 30 C.F.R. § 75.1403 

is invalid if it addresses conditions that exist in a significant num:ber of 

mines. 1 Our decision in this matter is one of several issued on this date 

l 30 C.F.R. § 75.1403 repeats section 314(b) of the Mine Act, 30 U.S.C. § 

874(b), and states: 

Other safeguards adequate, in the judgment of an 

authorized representative of the Secretary [of Labor], 

to minimize hazards with respect to transportation of 

men and materials shall be provided. 

I 

The procedures by which an authorized representative of the Secretary 

may issue a citation pursuant to section 75.1403 are described in 30 C.F.R. 

§ 75.1403-l(b). 

The authorized representative of the Secretary 

shall in writing advise the operator of a specific 

safeguard which is required pursuant to § 75.1403 and 

shall fix a time in which the operator shall provide and 

thereafter maintain such safeguard. If the safeguard is 

not provided within the time fixed and if it is not 

maintained thereafter, a [citation] shall be issued to 

the operator pursuant to section 104 of the Act. 

37 
concerning the authority of the Secretaiy of Labor to issue safeguards. 2 

Commission Administrative Law Judge Avram Weisberger concluded that the 

Secretary failed to prove that the safeguard was "mine specific" to the 

Greenwich Collieries No. 2 Mine of Rochester and Pittsburgh Coal Company 

("R&P"). 11 FMSHRC 2007, 2010 (October 1989)(ALJ). Consequently, he found 

the safeguard to be invalid because it was not promulgated pursuant to the 

rulemaking procedures of the Act. Accordingly, the judge vacated the 

citations issued to R&P alleging violations of the safeguard. For the reasons 

that follow, we vacate the judge's decision and remand this case to the judge 

for further proceedings. 

I. 

Factual Background and Procedural History 

On August 24, 1988, Nevin Davis, an inspector of the Department of 

Labor's Mine Safety and Health Administration ("MSHA"), conducted a spot 

inspection at the Greenwich Collieries No. 2 Mine and observed a miner exiting 

an elevator at the top of the South Portal with a portable dolly made of metal 

pipe. The dolly was approximately 2 feet high and tapered towards its 

rectangular base, which was approximately 1 foot by 2 feet. The dolly had two 

wheels and was designed to be pushed by hand. Davis issued a citation to R&P 

alleging a violation of an underlying Notice to Provide Safeguard (No. 

2885431). The citation states: 

An employee of this Company was observed by this 

writer exiting the South Portal elevator at the 

surface area with a metal type portable dolly carrying 

device. A notice to provide Safeguard No. 2885431 was 

issued at this mine on 05/18/88 under District 

Memorandum No. 207 - dated May 8, 1978 under 

Part/Section 75.1403 and prohibits person or persons 

being transported in elevators with equipment, 

supplies, or other materials except small hand tools, 

surveying instruments, or technical devices. 

The inspector designated the alleged violation as being of a significant and 

substantial nature. 

On September 6, 1988, Davis was again at the No. 2 mine and observed a 

miner exiting the top of the same South Portal· elevator with a dolly, which he 

thought was the same one that he had observed'on August 24, 1988. He issued 

another citation, again alleging a violation of Notice to Provide Safeguard 

No. 2885431. The citation states: 

An employee of this Company (Lamp No. 109) was 

observed and later questioned by this writer exiting 

2 Our other safeguard decisions issued today are: Southern Ohio Coal 

Company, 14 FMSHRC ~~• Nos. WEVA 88-144-R, etc.; BethEnergy Mines, Inc., 

14 FMSHRC ~~'Nos. PENN 89-277-R, etc.; and Mettiki Coal Corp., 

14 FMSHRC __ ,Nos. YORK 89-10-R, etc. 

38 
the South Portal elevator at the surface area with a 

metal type portable dolly carrying device. A notice 

to provide Safeguard No. 2885431 was issued at this 

mine on 05/18/88 under District Memorandum No. 207 

dated May 8, 1978 under Part/Section 75.1403 and 

prohibits person or persons being transported in 

elevators with equipment, supplies, or other 

materials, except small hand tools, surveying 

instruments, or technical devices. 

The inspector also designated this violation as significant and substantial. 

Notice to Provide Safeguard No. 2885431 had been issued by Inspector 

Davis on May 18, 1988, as a result of his observations at the No. 2 Mine on 

May 16, 1988. On that date, Davis saw two miners unloading four or five metal 

pipes about 2 inches in diameter and between 2 to 4 feet in length from an 

elevator. There were also two unidentified "cylindrical" objects about 1/2 

foot high on the floor of the elevator. Based on these observations and 

relying on "District Memorandum No. 207," Davis issued the Notice to Provide 

Safeguard, which states: 

Two (2) employees of this Company w[ere] observed by 

this writer on 05/16/88 at approximately 1500 hours 

exiting this mine[']s underground workings by way of 

the South Portal[']s elevator. These same two 

employees then proceeded to unload metal pipe 

arrangements and large cylindrical type objects (2) 

from this elevator. This notice to provide safeguard 

is issued for this mine per District Memorandum 

No. 207 dated May 8, 1978 and requires that no persons 

shall be transported on any cages or elevators with 

equipment, supplies, or other materials. This does 

not prohibit the carrying of small hand tools, 

surveying instruments, or technical devices. 

District Memorandum No. 207, from Donald W. Huntley, MSHA District 

Manager for Coal Mine Safety and Health, states: 

In accordance with the procedure for expansion of 

provisions under section 75.1403, 30 C.F.R. 75, ... 

the following list of provisions should be enforced: 

No person shall ride on a cage 

or elevator with equipment, 

supplies, or other materials. 

39 
This does not prohibit the 

carrying of small hand tools, 

surveying instruments, or 

technical devices. 3 

In his decision, the judge stated that a safeguard must be issued on a 

"mine-specific" basis, dealing with hazards "unique" or "peculiar" to a given 

mine, and that a safeguard purporting to address "generally applicable" 

conditions must instead be promulgated pursuant to the rulemaking provisions 

of the Act. 11 FMSHRC at 2010-11. · The judge found that the Secretary had 

failed to establish that the safeguard in issue was "mine-specific" to the No. 

2 mine. 11 FMSHRC at 2011. The judge concluded that the safeguard was 

invalid "as it was not promulgated pursuant to the rule-making procedures" of 

the Mine Act and dismissed the citations as being predicated upon an invalidly 

issued safeguard. Id. The Commission granted the Secretary's petition for 

discretionary review. Oral argument in this matter was heard on February 21, 

1991, along with argument in the other safeguard cases. 

II. 

Disposition of Issues 

The sole issue in this case is the validity of the underlying safeguard. 

In its companion decision issued this date, Southern Ohio Coal Co., 

14 FMSHRC __ , Nos. WEVA 88-144-R, etc. ("SOCCO"), the Commission addressed 

the extent of the Secretary's authority to issue safeguards under section 

314(b) of the Mine Act, 30 U.S.C. § 874(b) (~ n.l supra). We reviewed the 

text and legislative history of that section and reaffirmed the Commission's 

view, first expressed in Southern Ohio Coal Co., 7 FMSHRC 509, 512 (April 

1985)("SOCCO I"), that section 314(b) is an unusually broad grant to the 

Secretary of regulatory authority permitting her to issue, on a mine-by-mine 

basis, what are, in effect, mandatory standards dealing with transportation 

hazards. 

The Commission rejected the proposition that a notice to provide 

safeguards is invalid if it addresses a hazard that exists in a significant 

number of mines. We noted the considerable authority of the Secretary to 

determine what should properly be formulated as mandatory standards, and we 

held that the rulemaking provisions of the Mine Act, sections 101 and 301, do 

not circumscribe the Secretary's authority to issue safeguards under section 

314(b). Rather, we held that a safeguard may properly be issued to deal with 

commonly encountered transportation hazards, provided it is based on a 

determination by the inspector of a specific transportation hazard existing at 

a particular mine. We made clear, however, that a safeguard may not properly 

be issued by rote application of general MSHA policies, irrespective of the 

3 The Secretary does not contend that the safeguard at issue in this 

proceeding was based on any published safeguard criterion set forth at 30 C.F.R. 

§§ 75.1403-2 through -11. We note, however, that 30 C.F.R. § 75.1403-7(k), 

dealing with man trips, provides that " [ s] upplies or tools, except small hand 

tools or instruments, should not be transported with men." 

40 
specific conditions at a given mine. We discussed the Court's opinion in 

Zeigler Coal Co. v. Kleppe, 536 F.2d 378 (D.C. Cir.. 1976), and the 

Commission's opinion in Carbon County Coal Corp., 7 FMSHRC 1367 (September 

1985), both of which dealt with the mine ventilation plan adoption and 

approval process, and concluded that these cases are distinguishable. 

Finally, we allocated to the Secretary the burden of proving that a safeguard 

was issued on the basis of the specific conditions at a particular mine. 

Against the backdrop of these general principles, we now review the judge's 

determinations in the present case. Notwithstanding the legal conclusions 

reached in SOCCO, we also questioned, from the standpoint of policy, whether 

the proliferation of safeguards is the most effective method of addressing the 

more commonly encountered hazards in undergr·ound coal mine transportation, and 

we strongly suggested that the safety of underground coal miners would be 

better advanced by the promulgation of mandatory safety standards aimed at 

eliminating such hazards. SOCCO, 14 FMSHRC at~~• slip op. at 15-16. 

The judge concluded that the Secretary failed to establish that the 

safeguard was "mine-specific to the subject mine." 11 FMSHRC at 2011. The 

judge determined that Inspector Davis issued the safeguard as a result of 

District Memorandum No. 207 and that both the terms of this memorandum as well 

as the safeguard itself "relate to conditions that are applicable .to all 

elevators and are not unique to the elevators at Mine No. 2." 11 FMSHRC at 

2010-11. The judge concluded that there is no evidence that the condition 

described in the safeguard "is unique to Mine No. 2, or is occasioned by 

equipment peculiar to Mine No. 2." 11 FMSHRC at 2011. 

In SOCCO, we rejected the "mine-peculiar" view of the Secretary's 

safeguard authority. Consistent with that holding, the safeguard in question 

in this case is valid, notwithstanding the fact that similar safeguards were 

issued at a number of other mines, if it was actually based on the specific 

conditions at the Greenwich Collieries No. 2 Mine and on a determination by 

the inspector that those conditions created a transportation hazard in need of 

correction. The judge also relied heavily on Zeigler and Carbon County, 

supra. For the reasons explained in SOCCO, those decisions do not compel the 

"mine-peculiar" approach in the safeguard context. In light of these 

conclusions, we vacate the judge's decision and remand this proceeding to him 

for reevaluation of the validity of the safeguard according·to the framework 

discussed in SOCCO and in this decision. · 

The judge should set forth findings and conclusions as to whether the 

Secretary proved that the disputed safeguard was based on the judgment of the 

inspector as to the specific conditions at Mine No. 2 and on a determination 

by the inspector that a transportation hazard existed that was to be remedied 

by the action prescribed in the safeguard. Taking into consideration the 

principles announced in SOCCO I, the judge should determine whether the 

safeguard notice "identif[ied] with specificity the nature of the hazard at 

which it [was] directed and the conduct required of the operator to remedy 

such hazard." 7 FMSHRC at 512. If the judge finds the safeguard to have been 

validly issued, he should resolve the question of whether R&P violated the 

safeguard. If the judge determines there were violations, he should then 

consider whether the violations were of a significant and substantial nature 

and should assess appropriate civil penalties. 

41 
III. 

Conclusion 

For the foregoing reasons, we vacate the judge's decision and remand for 

further proceedings consistent with this decision. 

Distribution 

Joseph A. Yuhas, Esq. 

Rochester & Pittsburgh Coal Company 

P.O. Box 367 

Ebensburg, PA 15931 

Carl Charneski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Joyce A. Doyle, 

Arlene 

~.~ Holen, Commissioner 

diL_:_~'7lu __ ~ L. Clair Nelson, Commissioner 

Administrative Law Judge Avram Weisberger 

.Federal Nine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

42 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 · 

January 10, 1992 

Docket No. KENT 88-152 

GREEN RIVER COAL COMPANY, INC. 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

The issue in this civil penalty proceeding arising under the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine 

Act"), is whether Green River Coal Company, Inc. ("Green River") failed to 

comply with a notice to provide safeguard issued pursuant to 30 C.F.R. 

§ 75.1430 and based upon the criterion set forth in 30 C.F.R. § 75.1403-

5(g) .1 The Secretary alleges that conditions found by her inspector 

1 30 C.F.R. § 75.1403 repeats section 314(b) of the Mine Act, 30 U.S.C. 

§ 874(b), and states: 

Other safeguards adequate, in the judgment of an 

authorized representative of the Secretary [of Labor], 

to minimize hazards with respect to transportation of 

men and materials shall be provided. 

The procedures by which an authorized representative of the Secretary 

may issue a citation pursuant to section 75.1403 are described in 30 C.F.R. 

§ 75.1403-l(b). 

The authorized representative of the Secretary shall 

in writing advise the operator of a specific safeguard 

which is required pursuant to § 75.1403 and shall fix 

a time in which the operator shall provide and 

thereafter maintain such safeguard. If the safeguard 

is not provided within the time fixed and if it is not 

maintained thereafter, a notice shall be issued to the 

operator pursuant to section 104 of the Act. 

30 C.F.R. §§ 75.1403~2 through 75.1403-11 set forth specific criteria by 

43 
subsequent to the issuance of a safeguard notice and described in a.citation 

alleging a violation of section 75.1403-5(g) were prohibited by the 

safeguard notice. Commission Administrative Law Judge George A. Koutras 

found that the conditions for which the citation was issued were not 

encompassed by the safeguard notice, and he vacated the citation. 11 FMSHRC 

685 (April 1989)(ALJ). For the reasons set forth below, we affirm. 

On January 21, 1987, Jerrold Pyles, an inspector of the Department of 

Labor's Mine Safety and Health Administration ("MSHA"), issued a notice to 

provide safeguard to Green River Coal Company, Inc. ("Green River") at Green 

River's No. 9 Mine, an underground coal mine located near Madisonville, 

Kentucky. The notice states: 

A clear travelway at least 24" wide was not provided 

on both sides of the "7B" belt between xcuts No's 88 

& 89. There was less than 24" on one side of belt 

between roof support (timbers) and rib nor between 

belt and roof support. This is a notice to provide 

safeguard. 

Exh. P-9. In order to remedy the condition, Green River created a clear 24-

inch travelway between the roof support timbers and the rib by shearing off 

part of the rib with a pick and an electric jack hammer. 

On March 21, 1988, Inspector Pyles, accompanied by the safety manager 

for Green River, Grover Fischbeck, conducted an inspection of the mine, 

during which they observed that damage from a roof fall existed in the area 

of the 5-D belt, cross-cut number 6. The area had been partially cleaned 

by removing fallen rock from the conveyor belt. However, some fallen rock 

. remained, approximately 2 feet in height and extending for a length of 10 to 

12 feet on either side of the conveyor belt. The rock was slippery in 

places as a result of water leaking from the roof. 

Pyles testified that to conduct a thorough inspection of the 5-D 

conveyor belt, a belt examiner would have to walk on the slippery rock, 

which would expose the examiner to hazards associated with falling. 

Fischbeck confirmed that Pyles issued the citation because of the 

obstructions in the travelway caused by the fallen rock, which would prevent 

the belt examiner from walking along the entire length of the belt. 

which authorized representatives are guided in requiring safeguards. Section 

75.1403-5 is entitled "Criteria -- Belt Conveyors" and section 75.1403-5(g) 

states: 

A clear travelway at least 24 inches wide should be 

provided on both sides of all belt conveyors installed 

after March 30, 1970. Where roof supports are 

installed within 24 inches of a belt conveyor, a clear 

travelway at least 24 inches wide should be provided 

on the side of such support farthest fro~ the 

conveyor. 

44 
Pyles issued a citation alleging a violation of section 75.1403-5(g) 

based upon the safeguard notice he had issued on January 21, 1987. The 

citation states: 

A clear travelway of at least 24 inches was not 

provided on the 5 D belt xcut No. 6, in that rock 

had fallen down against belt, due to a roof fall, 

and had the travelway partially blocked to where a 

man or person would have to walked [sic] over the 

top of it. Area was wet and slippery on top of the 

gray shale .... 

Exh. P-8. The Secretary proposed a civil penalty of $800 for the violation, 

which Green River contested. 

Following an evidentiary hearing, the judge vacated the citation. 

Citing the Commission's decision in Southern Ohio Coal Co., 7 FMSHRC 509 

(April 1985)("SOCCO I") and the decision of Commission Administrative Law 

Judge John A. Carlson in Mid-Continent Resources. Inc., 7 FMSHRC 1457 

(September 1985)(ALJ), he concluded that the safeguard notice issued by 

Pyles on January 21, 1987, did not encompass the cited conditions. 11 

FMSHRC at 702-03. 2 The judge agreed with Judge Carlson's reasoning in MidContinent and compared the conditions leading to the issuance of the 

citation with those leading to the issuance of the safeguard notice. He 

found that the conditions giving rise to the safeguard, which had come about 

as a result of installing roof support timbers too close to a conveyor belt 

and which required that the rib be sheared to provide the necessary 

2 In SOCCO I; a case involving an alleged violation of a notice to 

provide safeguard, the Commission held that, in determining whether an 

operator has violated a safeguard notice, the notice must be . strictly 

construed and must give the operator clear notice of the hazard and of the 

conduct required to remain in compliance. 7 FMSHRC at 512. 

In Mid-Continent, an inspector issued a safeguard notice pursuant to 

section 75.1403-5(g) because coal sloughage obstructed part of a 24-inch 

travelway along a conveyor belt. Subsequently, the inspector found another 

travelway obstructed by coal sloughage, a shallow trench, and roof support 

timbers. Judge Carlson found that the citation was valid with respect to the 

coal sloughage, but invalid with respect to the trench and timbers. He held 

that specification of coal sloughage in the safeguard notice "was broad enough 

to embrace the casual presence or accumulation of coal or similar solid 

objects in the travelway." 7 FMSHRC at 1461. He further held, however, that 

the safeguard notice was not broad enough to include the dissimilar 

obstructions of the trench, which differed in nature from the sloughage, or 

the standing roof support timbers, which were installed as part of the roof 

control system and which required abatement action far different from the 

removal of coal sloughage. The judge therefore concluded that the trench and 

the roof support timbers "differed enough from the class of objects akin to 

coal sloughage to remain outside the reasonable scope of [the] ... notice of 

safeguard." 7 FMSHRC at 1462. 

45 
clearance, were different from the rock fall condition on which Pyles based 

the citation. 

On review, the Secretary contends that the judge misapplied the 

Commission's holding in SOCCO I. She argues that the citation must be 

upheld if both the safeguard notice and the citation cover physical 

obstructions to a 24-inch travelway. The Secretary refers to the 

Commission's statement in SOCCO I, where the safeguard notice had been 

issued to address an obstruction caused by cement blocks and rocks, that 

further instances of physical obstructions, whether rocks, cement blocks, 

construction materials, mine equipment, or debris, would fall within the 

scope of the safeguard. 7 FMSHRC at 513. She argues that, because the 

safeguard notice and-citation in this case cover "physical obstructions," 

roof support timbers and fallen rock,_ the citation was validly issued and 

should have been upheld, and a civil penalty assessed against Green River. 

We disagree. In SOCCO I, the Commission explained that strict 

construction of safeguards is premised upon the unique process by which 

safeguards are issued. Inspectors are authorized by section 75.1403 to 

write what are, in effect, mandatory safety standards on a mine-by-mine 

basis in order to reduce hazards posed by the transportation of men and 

materials in a particular mine. If the operator fails to comply with a 

safeguard as issued, he is susceptible to the issuance of a citation and the 

subsequent assessment of a civil penalty. 30 C.F.R. § 75.1403-l(b). 

The Commission concluded that the special nature of the safeguard 

provision, that is, its unusually broad grant of regulatory authority, 

requires a rule of interpretation more restrained than that accorded 

standards promulgated for nationwide application to all mines. The 

Commission held that "a safeguard notice must identify with specificity the 

nature of the hazard at which it is directed and the conduct required of the 

operator to remedy such hazard." SOCCO I, 7 FMSHRC at 512. The ·commission 

further stated that its approach toward interpretation of the safeguard 

provisions "strikes an appropriate balance between the Secretary's authority 

to require ... safeguards and the operator's right to notice of the conduct 

required of him" and that "the safety of miners is best advanced by an 

interpretative approach that ensures that the hazard of concern to the 

inspector is fully understood by the operator, thereby enabling the operat~r 

to secure prompt and complete abateme-qt." Id. 

In SOCCO I, the safeguard notice was issued because fallen rock and 

cement blocks obstructed the travelway, and the citation that alleged a 

violation of the safeguard was issued because an accumulation of water, 

which presented a slipping and stumbling hazard, was present in the 

travelway. The Commission found that the accumulation of water was neither 

specifically identified in the safeguard notice nor contemplated by the 

inspector when he issued the safeguard notice. SOCCO I, 7 FMSHRC at 513. 

In concluding that the conditions for which the citation was issued did not 

violate the notice to provide safeguard, the Commission considered the 

physical characteristics of the impediments to travel, as well as factors 

such as the type of hazards posed by the conditions, the manner by which the 

conditions were created, and the manner in which the conditions could be 

46 
remedied. Id. 3 

Following the analytical guidelines adopted by the Commission in 

SOCCO I, Judge Koutras correctly concluded that the -safeguard notice in this 

case did not cover the cited obstruction. In so doing, the judge properly 

rejected the inspector's opinion that, regardless of the conditions that 

caused a belt travelway to be restricted, a violation of the safeguard 

occurred whenever a clear travelway of at least 24 inches was not provided 

in accordance with the safeguard notice. 11 FMSHRC at 700-03. The judge 

focused upon the characteristics of the obstacles causing the obstruction, 

the type of hazard posed by the obstacles, the manner in which the obstacles 

were created, and the manner in which the resulting conditions could be 

remedied. The judge found that, while no evidence was presented with 

respect to the hazards associated with a travelway restricted by the. 

installation of roof support timbers close to a conveyor belt, the evidence, 

nonetheless, established a slipping and falling hazard with respect to the 

fallen rock. 11 FMSHRC at 702. The judge noted that the obstructions 

described in the safeguard notice and citation arose in dissimilar manners. 

The safeguard specifically addressed a lack of clearance caused by the 

installation of roof timbers too close to a conveyor belt, while the cited 

obstruction was caused by rock that had fallen against the belt. 11 FMSHRC 

at 702-03. The judge also noted that the safeguard obstruction was abated 

in a manner requiring the use of a jack hammer to shear off a rib to provide 

greater clearance. 11 FMSHRC at 703. The cited obstruction was abated by 

removing the fallen rock. Tr. 12, 17. Given these differences between the 

impediment caused by the intentional placement of roof support timbers and 

the impediment caused when rock had accidentally fallen against the conveyor 

belt, he held that the safeguard notice did not encompass the conditions in 

the citation. 11 FMSHRC a_t 703. 

The inspector believed that whenever a clear travelway was not 

provided for whatever reason, he should issue a citatio~, even though an 

obstruction caused by fallen rock was not specifically addressed in the 

safeguard notice. Tr. 63-64. A safeguard, however, must identify with 

specificity the nature of the hazard against which it is directed and the 

conduct required of the operator to remedy the hazard. Obstructions in 

travelways caused by the deliberate placement of roof supports differ 

fundamentally in nature, cause, and remedy from those that occur due to roof 

falls. We find, therefore, that the prohibition against obstructions in 

travelways caused by the placement of roof support timbers did not provide 

sufficient notice to Green River that obstructions caused by roof falls 

likewise were prohibited. 

We reject the Secretary's argument that the concerns expressed by the 

Commission in SOCCO I regarding the necessity for narrow construction of a 

3 This same wide range of distinguishing factors was considered by the 

judge in Mid-Continent when he concluded that the safeguard notice issued 

because coal sloughage obstructed an escapeway did not encompass obstructions 

caused by a trench and roof support timbers. 7 FMSHRC at 1461. See n.2, 

supra. 

47 
notice to provide safeguard are valid only when the safeguard is not based 

on a specific published criterion of sections 75.1403-2 through 75.1403-11. 

See Sec. Br. at 10. The Secretary argues that a safeguard notice that is 

based on a published criterion should be construed like a mandatory standard 

and should apply to all factual circumstances reasonably encompassed by the 

language of the criterion. The Secretary cites UMWA v. Dole, 870 F.2d 662 

(D.C. Cir. 1989) as supporting her argument. 

We have addressed a number of issues concerning the authority of the 

Secretary of Labor to issue safeguards in decisions issued this date in the 

following cases: Southern Ohio Coal Co., 14 FMSHRC, __ ,, Nos. WEVA 88-144-

R, etc.; BethEnergy Mines. Inc., 14 FMSHRC __ ,Nos. PENN 89-277-R, etc.; 

Mettiki Coal Corp., 14 FMSHRC __ ,Nos. YORK 89-10-R, etc.; and Rochester 

and Pittsburgh Coal Co., 14 FMSHRC __ , Nos. PENN 88-309-R, etc. In 

BethEnergy, supra, we held that the fact that a safeguard is founded on a 

published criterion does not affect either its validity or the manner in 

which it is to be construed. The validity of a safeguard depends on whether 

the safeguard is based on the inspector's evaluation of specific conditions 

at the mine in question and on the inspector's determination that those 

conditions created a specific transportation hazard in need of the remedy 

prescribed. We determined that the principles with respect to roof control 

plan criteria set forth in Dole are not relevant to cases involving 

safeguards. We reaffirmed our holding in SOCCO I that a safeguard must 

afford the operator fair notice of what is required or prohibited by the 

safeguard. The fact that a safeguard is based on a published criterion does 

not alter the fundamental consideration that a safeguard must be interpreted 

more narrowly than a promulgated standard in order to balance the 

Secretary's authority to require a safeguard and the operator's right to 

fair notice of the conduct required by the safeguard. Slip op. at 8-9. 

48 
We conclude, therefore, that the judge properly c_onstrued the 

safeguard notice and correctly found that it is not broad enough to 

encompass the condition's described in the citation. Accordingly, we affirm 

the vacation of the citation. · 

Distribution 

Carl Charneski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

B.R. Paxton, Esq. 

Paxton & Kusch 

213 E. Broad Street 

P.O. Box 655 

Central City, Kentucky 42330 

Administrative Law Judge Koutras 

Richard V. Backley, Commissionei; 

.• . . 

.. /#~a:r·. ... . • 

A lene Holen, Commissioner · 

'JJ}~_A-;__~~lu~ L. Clair Nelson, Commissioner 

Fed~ral Mine Safety and Health Review Commission 

Office of the Administrative Law Judge 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Vriginia 22041 49 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

AMOS HICKS 

V. 

COBRA MINING, INC. 

JERRY K. LESTER, and 

CARTER MESSER 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

January 13, 1992 

Docket No. VA 89-72-D 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This matter, ar1s1ng under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act" or "Act"), is before the 

Commission for a second time. The present proceeding stems from a pro se 

petition for discretionary review filed by Amos Hicks on September 9, 1991, 

seeking review of part of an August 7, 1991, decision issued by Commission 

Administrative Law Judge Avram Weisberger. 13 FMSHRC 1262. Mr. Hicks takes 

issue with the amount of the damages awarded him in connection with his 

discriminatory discharge. 

In a March 22, 1990, decision Judge Weisberger determined that Hicks had 

set forth a prima facie case of discrimination, but that the Respondents had 

established an affirmative defense to Hicks' case. 12 FMSHRC 563. Hicks 

petitioned for discretionary review of the decision, which was granted. On 

April 1, 1991, the Commission vacated the judge's decision and directed that 

the Respondents' affirmative defense be re-evaluated in light of applicable 

precedent. 13 FMSHRC 523. On June 4, 1991, the judge determined that Cobra 

Mining, Inc. ("Cobra"), Jerry Lester and Carl Messer had discriminatorily 

discharged Hicks in violation of section 105(c) of the Mine Act. 

30 U.S.C. § 815(c). 13 FMSHRC 921. The factual background of Hicks' 

complaint of discrimination is set forth fully in our April 1, 1991, decision 

and need not be restated here. 

The issue before us at this juncture is whether certain consequential 

damages found by the judge to have been caused by the discriminatory discharge 

were correctly calculated. The damages at issue are in connection with Hicks' 

loss of his pickup truck, which was repossessed and sold shortly after Hicks 

was discriminatorily discharged in May of 1989. Before the judge, Cobra and 

the individual Respondents argued that Hicks' loss of his truck could not be 

deemed compensable damages under the Mine Act. Citing the legislative history 

so 
of the Act, 1 the judge rejected Respondents' arguments and held, "it is 

respondent's obligation to put Complainant in the position he would be in if 

there had not been a discriminatory discharge in violation of the Act." 

13 FMSHR~ at 1263. 

The Respondents have not controverted on review the judge's threshold 

finding that such damages are compensable under the statute. Indeed, Cobra 

and Messrs. Lester and Messer have filed no pleadings or responses on review. 

Accordingly, the sole issue before us is whether the judge correctly 

determined the amount of compensation owed to Hicks for the loss of his truck. 

For the reasons that follow, we vacate that portion of the judge's decision 

and remand the matter for further proceedings as indicated below. 

Prior to the issuance of his remedial decision, the judge directed the 

parties to file statements regarding the amount of damages due Hicks. On June 

21, 1991, the Secretary of Labor, on Hicks' behalf, filed a request for back 

pay, costs and consequential damages totalling $17,107.17. 2 Of the total 

damages sought, the Secretary designated $9,861.07 as consequential damages 

associated with Hicks' loss of his 1988 Dodge Ram pickup truck, which, shortly 

after Hicks' discharge, was repossessed and sold by the bank through which he 

had financed its purchase. The amount sought was arrived at by adding the 

monthly payments Hicks had already made on the truck ($4,818.80) and the 

amount Hicks still owed to the bank after the loan balance was adjusted to 

1 The legislative history of section 105(c) of the Act provides in 

relevant part: 

It is the Committee's intention that the Secretary 

propose, and that the Commission require, all relief 

that is necessary to make the complaining party whole 

and to remove the deleterious effects of the 

discriminatory conduct, including, but not limited to, 

reinstatement with full seniority rights, back-pay with 

interest, and recompense for any special damages 

sustained as a result of the discrimination. The 

specified relief is only illustrative. 

S. Rep. No. 181, 95 Cong., 1st Sess., at 37 (1977), reprinted in 95 Cong., 

2nd Sess. Legislative History of the Federal Mine Safety and Health Act of 1977, 

at 625 (1978). 

2 Hicks was represented by the Secretary in the original proceeding, 

in which no discriminatory discharge was found. 12 FMSHRC 563 (March 1991). The 

Secretary did not file a petition for discretionary review of that decision on 

Hicks' behalf, leaving Hicks to file his ultimately successful petition pro se. 

The Secretary re-entered the proceeding on remand and, in addition to filing for 

the above-referenced damages, sought and obtained a civil penalty of $1500.00 

against Respondents for violation of section 105 (c) of the Act. Upon the judge's 

reduction of the amount of consequential damages sought by the Secretary on 

Hicks' behalf, the Secretary once again did not file a petition for discretionary 

review, and Hicks filed his present petition pro se. 

51 
reflect the repossession and sale of the vehicle ($5,042.27). 

The unrebutted evidence submitted by Hicks indiCates that he purchased a 

new 1988 Dodge Ram.pickup truck in February 1988, and financed the purchase 

through a loan totalling $20,652.00. Hicks made 14 monthly payments of 

$344.20 each on the loan through April 1989. After his discharge by Cobra in 

May 1989, Hicks made no further payments oh the truck .. At that time he had 

paid $4,818.80 on the loan.' The bank repossessed the truck in July of 1989, 

and thereafter sold it for $7,400.00. In September of 1989, the bank advised 

Hicks that the proceeds of the sale and various offsetting charges associated 

with the repossession left him with a liability to the bank of $5,042.27. 

In his decision, the Judge ordered payment of what he considered Hicks' 

"lost equity" in the truck, i.e., the total of the monthly payments Hicks had 

made prior to the repossession of the truck ($4,818.80). As for the $5,042.27 

still owing to the bank and sought as damages by the Secretary, the judge held 

that this sum "constitutes complainant's obligation under the loan, and does 

not appear to be related to his having lost his employment." 13 FMSHRC at 

1263. 3 

The measure of recognizable consequential damages is generally 

calculated on .the basis of the "fair market value" for property lost as a 

result of the illegal act.. See, ~. Kenneth Wi&gins v. Eastern Assoc. Coal 

Corp., 7 FMSHRC 1766, 1773 (November 1985). We conclude that neither the 

calculation of consequential dam~ges proposed by the Secretary nor the actual 

determination of those damages made by the judge is appropriate. 

The appropriate awa~d to Hicks is an amount reflecting what he actually 

lost -- the fair market value of the truck at the time it was repossessed, 

less whatever net credits he received from the forced sale of the vehicle. 

Such an approach would most closely reflect what Hicks might have realized had 

he·voluntarily sold the vehicle at ·the time it was repossessed. The best 

means of determining Hicks' damages, therefore, is to first establish the fair 

market value the truck at the time of repossession, in light of such factors 

as its condition, equipment options and the depreciation it underwent during 

the 14 months that Hicks owned and operated it. Objective valuation of the 

truck can be derived from independent appraisal manuals, published for that 

purpose. 

Accordingly, this matter is remanded to the judge for additional 

3 The judge relied upon a decision in Noland v. Luck Quarries. Inc. , 

2 FMSHRC 954 (April 1980), in which Commission Chief Administrative Law Judge 

Paul Merlin, in order to make the complainant "whole," ordered the respondent to 

compensate the complainant for the lost equity in a truck that complainant was 

forced to sell after his discriminatory discharge. It does not appear, however, 

that the figure was arrived at simply by computing the amount already paid on the 

truck loan, which would, in most cases, include sums attributable to interest. 

Rather, it was arrived at by mutual agreement of the parties after the judge 

ordered them to negotiate an amount in light of such factors as "cost, ... down 

payment, refinancing, repairs and sales price." 2 FMSHRC at 961-63. 

52 
consideration. The judge is directed to reopen the record to receive evidence 

on the value of the truck at the time of repossession. Once that amount is 

determined, it should be increased by $142.44, an amount equal to the costs of 

the repossession charged to Hicks by the bank. In turn, that total amount 

should be reduced by $7,400.00, the amount credited to Hicks' loan balance 

from the proceeds of the bank's forced sale of the truck. The remainder, if 

any, should then be added, with interest, to the damages already awarded for 

back pay, interest, and costs in the judge's August 7, 1991 order. 

For the foregoing reasons, we vacate the judge's decision with respect 

to the amount of damages awarded for the loss of Hicks' truck and remand the 

matter for further proceedings consistent with this decision. 

Richard V. Backley, Commissioner 

loyC:-Z 

1...,! /J -~f 

Doyle, 

tl 

CommiSSiOr 

~0 

Arlene Holen, Commissioner 

~/1.x_t~ L. Clair Nelson, Commissioner 

53 
Distribution 

Mr. Amos R. Hicks 

Rt. 2, Box 27 D 

Paynesville, West Virginia 24873 

Kurt J. Pomrenke, Esq. 

White, Elliott & Bundy 

P.O. Box 8400 

Bristol, Virginia 24203 

Glen M. Loos, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH · FLOOR 

WASHINGTON, D.C. 20006 · 

January 14, 1992 

IN RE: CONTESTS OF RESPIRABLE DUST 

SAMPLE ALTERATION CITATIONS 

ORDER 

MASTER DOCKET NO. 91-1 

On November 13, 1991, the Commission granted petitions filed by the 

Secretary of Labor and the contestants. represented by the law firm of Jackson 

& Kelly, for interlocutory review of orders entered by Commission 

Administrative Law Judge James A. Broderick in these proceedings. Petitioners 

have filed their briefs and response briefs. On January 3, 1992, contestants 

represented by the law firms of Robertson, Cecil, King & Pruitt and Street, 

Street, Street, Scott & Bowman filed motions to join in the response brief 

filed by Jackson & Kelly. These contestants did not join in Jackson & Kelly's 

petition for interlocutory review and have not previously sought to 

participate in this interlocutory proceeding. 

These contestants did not attempt to explain in their motions why they 

waited until all briefs were filed to seek to participate in this 

interlocutory review proceeding. They have been aware of this appeal since it 

was filed and could reasonably have sought to participate on a more timely 

basis. Parties who wish to participate in appeals to this Commission must do 

so promptly after review has been granted. See generally Mid-Continent 

Resources. Inc., 12 FMSHRC 2399, 2404-05 (December 1989). 

Accordingly, the above-referenced motions to join in the response brief 

filed by Jackson & Kelly are denied. 

For the Commission: 

Chairman 

55 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF IABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

GREFCO, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 15, 1992 

Docket No. CENT 91-176-M 

BEFORE: Ford, Chairman; Backley, Doyle, Holen, and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. 801 et seq. (1988) ("Mine Act"). On November 

18, 1991, Commission Administrative Law Judge John J. Morris entered a 

decision approving settlement in this case, in which he noted that Grefco, 

Inc. ("Grefco") had moved to withdraw its contest and to pay in full the civil 

penalty of $192 proposed by the Secretary of Labor. For the reasons explained 

below, we vacate the judge's decision approving settlement and remand for 

further proceedings. 

The record reflects that by letter dated November 1, 1991, Michael 

Conley, counsel for Grefco, informed the Commission and counsel for the 

Secretary that Grefco would no longer be contesting the proposed penalty in 

Grefco, Inc., Docket No. CENT 91-190-M. Counsel for the Secretary 

subsequently forwarded Mr. Conley's November 1 letter to Judge Morris, along 

with a cover letter explaining that Grefco was withdrawing its contest of the 

proposed penalties in the present proceeding, Docket No. CENT 91-176-M. On 

November 18, 1991, the judge entered a decision approving settlement, noting 

that Grefco had moved to withdraw its contest in the subject case. 

On January 2, 1992, the Commission received a letter from Conley dated 

December 30, 1991, in which he explains that although Grefco does not contest 

the proposed penalties in the unrelated case, Grefco. Inc. Docket No. CENT 91-

190-M, Grefco continues to contest the proposed civil penalties in the subject 

case. Conley explains that the judge's decision approving settlement was 

mistakenly entered due to the misdirection of Conley's November 1 letter by 

the Secretary's counsel, and requests that this matter be returned to Judge 

Morris. 

The judge's jurisdiction over the case terminated when his decision was 

issued. 29 C.F.R. § 2700.65(c). Under the Mine Act and the Commission's 

procedural rules, relief from a judge's decision may be sought by filing a 

56 
petition for discretionary review with the Commission within 30 days of the 

decision. 30 U.S.C. § 823(d); 29 C.F.R. § 2700.70(a). Grefco did not file a 

timely petition for discretionary review within the 30-day period, nor did the 

Commission direct review on its own motion within that period. 30 U.S.C. 

823(d)(2)(B). Thus, under the Mine Act, the judge's decision became a final 

decision of the Commission 40 days after its issuance. 30 U.S.C. § 823(d)(l). 

Under these circumstances, we deem Grefco's December 30 letter to be a request 

for relief from a final Commission decision incorporating a late-filed 

petition for discretionary review. See J.R. Thompson. Inc., 12 FMSHRC 1194, 

1195-96 (June 1990), 

Relief from a final judgment on the basis of mistake, inadvertence, 

surprise or excusable neglect is available to a movant under Fed. R. Civ .. P. 

60(b)(l) & (6). See,~. Lloyd Logging. Inc., 13 FMSHRC 781, 782 (May 

1991). The record in this case suggests that the decision approving 

settlement. may have been entered in error. We conclude that this matter 

should be remanded to the judge in order to afford Grefco the opportunity to 

present its position to the judge, who shall determine whether final relief 

from the decision approving settlement is warranted. 

57 
For the foregoing reasons, we vacate the judge's order approving 

settlement and remand this matter to the judge for appropriate proceedings. 

Richard V. Backley, Commissioner 

~f{o~ 

Arlene 

~~ Holen, Commissioner 

K~/Lt£~ L. Clair Nelson, Commissioner 

58 
FEDERAL MINE SAFETY AND HEALTH REVIEW. COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 23, 1992 

SECRETARY OF l.ABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. CENT 90-95-M 

EXPLOSIVES TECHNOLOGIES 

INTERNATIONAL, INC. 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). The issue is 

whether Commission Administrative Law Judge James Broderick erred in finding 

that Explosives Technologies International, Inc. ("ETI") violated two 

·mandatory surface metal/non-metal safety and health standards: 30 C.F.R. 

§ 56.5050(b) requiring the use of ·feasible administrative or engineering 

controls to reduce employees' exposure to excessive noise 1 and 30 C.F.R. 

1 30 C.F.R. § 56.5050 states: 

(a) No employee shall be permitted an exposure to noise 

in excess of that specified in the table below. Noise 

level measurements shall be made using a sound level 

meter meeting specifications for type 2 meters contained 

in American National Standards Institute (ANSI) Standard 

SI.4-1971, "General Purpose Sound Level Meters," 

* * * * * * * * * 

PERMISSIBLE NOISE EXPOSURES 

Duration per day, Sound level dBA, 

hours of exposure slow response 

8 ------------------------------------- 90 

6 ------------------------------------- 92 

4 ------------------------------------- 95 

3 ------------------------------------- 97 

59 
§ 56.7002 requiring that equipment defects affecting safety be corrected 

before the equipment is used. 2 13 FMSHRC 161(January199l)(ALJ). The 

Commission granted ETI's petition for discretionary review. For the reasons 

that follow, we affirm the judge's conclusion that ETI violated section 

56.5050(b)(l), but reverse his conclusion that it violated section 56.7002. 

ETI is an independent contractor at a crushed granite surface mine 

located in Johnston County, Oklahoma. ETI performs drilling and explosives 

work at the mine. 

I. Factual Background and Procedural History 

On November 21, 1989, Norman Lavalle, an inspector with the Department 

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

inspection at the mine. The inspection included a noise survey of drill 

operators employed by ETI, including the operator of an Atlas hydraulic drill. 

In conducting the noise survey, Lavalle used a dosimeter to measure the noise 

Duration per day, Sound level dBA, 

hours of exposure slow response 

2 ------------------------------------- 100 

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

1 ------------------------------------- 105 

1/2 ----------------------------------- 110 

1/4 or less --------------------------- 115 

No exposure shall exceed 115 dBA. 

noise shall not exceed 140 dB, 

level. 

* * * 

Impact or impulsive 

peak sound pressure 

* 

(b) When employees' exposure exceeds that listed in the 

above table. feasible administrative or engineering 

controls shall be utilized. If such controls fail to 

reduce exposure to within permissible levels, personal 

protection equipment shall be provided and used to 

reduce sound levels to within the levels of the table. 

* 

(Emphasis added.) 

2 30 C.F.R. § 56.7002 states: 

Equipment defects affecting safety shall be corrected 

before the equipment is used. 

60 
reaching the drill operator. 3 After three hours h.ad elapsed, LaValle found 

that the driller had been exposed to noise levels 2.94 times the exposure 

limit, equivalent to 98 dBA for an 8-hour period. 4 LaValle also found that 

feasible engineering or administrative controls were not being used to control 

the noise. LaValle ordered the drill operator to stop drilling and issued 

Citation No. 3283281 for a violation of section 56.5050(b). 

On January 10, 1990, LaValle inspected ETI~s Robbins RRT-35 DTH Drill. 

The drill was out of service for repair of the transmission clutches. LaValle 

found cracks in the boom support structure of the drill, which he thought 

could cause its failure. The cracks were packed with oil and grease, 

suggesting to LaValle that they had existed for some time. LaValle issued 

Citation No. 3271867 alleging a violation of section 56.7002 by ETI. MSHA 

proposed civil penalties of $20 for each violation. 

Before the administrative law judge, the Secretary _maintained that 

section 56.5050(b) had been violated because ETI had not used feasible 

engineering or administrative controls to reduce the noise from the Atlas 

drill. ETI conceded that the drill operator had been exposed to excessive 

noise, but argued that pneumatic drills with feasible engineering controls 

expose miners to higher noise levels than those emitted by its hydraulic drill 

3 A dosimeter is an electronic device that measures noise exposure. The 

dosimeter is attached to the miner and the microphone is placed as close to the 

miner's ear as possible. The dosimeter reads unity (100%) if the noise level is 

at the maximum level permitted under the standard. 

4 The regulations do not define the terms "dBA" or "decibel". The term 

"decibel" is defined in A Dictionary of Minin&. M.ineral. and Related Terms 305, 

U.S. Department of the Interior (1968), as: 

The unit for measuring sound intensity .... When 

sound or noise is created it gives off energy which is 

measured in decibels. 

In Marshall v. West Point Pepperell. Inc., 588 F.2d 979, 982 n.5 (5th Cir. 1979), 

the court explained the term "decibel" as follows: 

Decibels, the basic unit of measurement of sound 

levels, are recorded on sound level meters.according to 

several scales. On the A scale [ dBA] , the meter is more 

sensitive to higher pitched tones than those of a lower 

pitch, just as the human ear is. The "slow" response is 

another setting of the instrument by which it averages 

out high level noises of brief duration (such as 

hammering), rather than responding to the individual 

impact noises. See U.S. Dept. of Labor, Guidelines to 

the Department of Labor's Occupational and Noise 

Standards, p.3 (1971). 

61 
without engineering controls. In ETI's view, its choice of the Atlas drill 

constituted its feasible engineering control. 

The Secretary also maintained that section 56.7002 was violated, arguing 

that the fact the drill was down for transmission repairs was irrelevant, 

since the cited defect was unrelated to the transmission and existed prior to 

the drill's removal from service. ETI argued that the Robbins drill did not 

violate section 56.7002 because the drill was down for repairs and the 

inspector incorrectly assumed that ETI would not.have discovered the problem 

and repaired it before it was used. 

Judge Broderick sustained the alleged violations. 13 FMSHRC at 163. He 

found that ETI's Atlas drill operator was exposed to noise levels in excess of 

those set forth as permissible in section 56.5050, and that feasible 

administrative and engineering controls existed that could have been used to 

reduce the noise level of the drill. Id. The judge also found that there 

were cracks in the metal of the Robbins drill boom support structure and, 

although the drill was not being operated at the time the condition was 

discovered, the cracks had existed for some time. Id. The judge found that 

neither violation was serious and that both resulted from ETI's ordinary 

negligence and were abated ¥it~in the time set for termination. He assessed a 

civil penalty of $50 for each violation. Id. 

On review, ETI asserts that the judge erred in finding violations of 

sections 56.5050(b) and 56.7002. ETI again argues that its choice of a 

quieter hydraulic drill constitutes its f~asible·control, and that its use of 

the drill without additional feasible engineering controls does not violate 

the standard. It submits that MSHA's interpretation and application of the 

standard is arbitrary. ETI argues that the cracked drill boom should not have 

been cited because the drill was being repaired when the deficiency was found. 

Finally, ETI argues that the judge erroneously assessed $50 penalties for the 

alleged violations. 

II. Disposition of Issues 

A. Violation of section 56.5050. 

Section 56.5050(a) establishes permissible noise exposure levels based 

on a time-weighted average. Section 56.5050(b) requires that feasible 

administrative or engineering controls be used when noise exposure exceeds the 

permissible level. If these measures fail to reduce noise exposure 

sufficiently, personal protective equipment must be used to reduce noise 

levels to within permissible limits. 

In Callanan Industries. Inc., 5 FMSHRC 1900 (November 1983), the 

Commission held that the Secretary establishes a prima facie case of violation 

by providing: 5 

5 30 C.F.R. § 56.5-50, the noise standard involved in Callanan Industries, 

is identical to section 56.5050. 

62 
(1) sufficient credible evidence of a miner's exposure 

to noise levels in excess of the limits specified in 

the standard; (2) sufficient credible evidence of a 

technologically achievable engineering control that 

could be applied to the noise source; 

(3) sufficient credible evidence of the reduction in 

the noise level that would be obtained through 

implementation of the engineering control; 

(4) sufficient credible evidence supporting a reasoned 

estimate of the expected economic costs of the 

implementation of the control; and (5) a reasoned 

demonstration that, in view of the elements 1 through 

4 above, the costs of the control are not wholly out 

of proportion to the expected benefits. 

5 FMSHRC at 1909. 

With respect to element one of the Callanan Industries test, the judge 

found, and ETI does not dispute, that the drill operator was exposed to noise 

levels in excess of the limits specified in the standard. 13 FMSHRC at 163. 

Nor does ETI dispute the judge's finding that there were feasible 

administrative and engineering controls that could have been used to reduce 

the noise level tQ which the employee was exposed. 13 FMSHRC at 163. 

Inspector LaValle testified that such controls included sound deadening 

devices or sound deflecting devices, mufflers, and cabs. Tr. 20, 28-29, 39. 

MSHA District Health Specialist Steve Viles testified that a barrier shield 

could also serve as a feasible engineering control. Tr. 95-96. MSHA engineer 

Richard Goff also testified that a barrier or a partial barrier made from 

belting material or safety glass as well as a cab or partial cab could reduce 

the noise. Tr. 49-50, 60-62, 64, 66, 69. See also Tr. 38, 73; S. Exh. 10; 

ETI Exhs. 5, 6. 

The judge did not address elements three, four, or five of the Callanan 

Industries test, although the Secretary presented unrebutted testimony 

relevant to those elements. In addressing the reduction in the noise level 

that would be obtained through implementation of engineering controls, Goff 

testified that, by putting a partial barrier on the control panel of the Atlas 

drill., "you should be able to get about a 10 d.BA reduction." Tr. 50. Goff 

said that a partial cab at the control station would result in noise reduction 

of about 5 to 15 d.BA. Tr. 69. Goff testified that the cost to construct a 

barrier made from belting material was approximately $100, that it could 

usually be put on in about three to four hours, and that there would be a 

reduction of about 10 d.BA on smaller drills. Tr. 61-62. Goff further stated 

that more effective barriers constructed from safety glass cost approximately 

$1,000, including materials and labor. Tr. 66. He estimated that this 

barrier ~ontrol would provide a 10 to 15 d.BA reduction. Tr. 62. Goff 

testified that retrofitting an Atlas drill with a cab would cost approximately 

$50,000 to $70,000. Tr. 63-64. The cited drill was valued at $300,000. Tr. 

82; ETI Exh. 2. 

In Callanan Industries. 5 FMSHRC at 1911-12, the Commission concluded 

that a 5 dBA reduction at a cost of approximately $2,672 to a drill valued 

63 
under $2,500 was sufficient for purposes of establishing that the costs of the 

controls were not out of proportion to the expected benefits. 6 In A.H. 

Smith, 6 FMSHRC 199 (February 1984), the Commission found that noise control 

costs ranging between $600 and $1400 for a diesel shovel were not 

unreasonable. Accordingly, in view of the evidence discussed above, we 

conclude that the Secretary established the prima facie case outlined in 

Callanan Industries. 

ET! nonetheless contends that MSHA is arbitrarily applying the standard 

because pneumatic drills that generate a significantly higher noise level with 

feasible engineering controls in place are permitted to operate. ET! argues 

that, logically, it should be able to rely on personal protection equipment 

because its drill is quieter than a pneumatic drill with engineering controls. 

We conclude that ETI is not being treated arbitrarily under the standard 

because all mine operators are required to use feasible engineering controls 

to reduce the noise on all equipment that exceeds the levels permitted. If 

such controls fail to reduce the exposure to within permissible levels, 

personal protection equipment must then be provided and used to reduce the 

sound emitted to permissible levels. A mine operator, as well as its 

employees, benefits from using a quieter drill because it enables the 

standard's exposure limit to be attained more easily. Additionally, feasible 

engineering controls on quieter drills may reduce the noise sufficiently to 

obviate the need for protective equipment. In any event, the fact that 

pneumatic drills with engineering· controls may expose miners to higher noise 

levels than ETI's hydraulic drill without engineering controls is irrelevant 

to the issue of whether ET! violated the standard. We conclude that 

substantial evidence supports the judge's finding that ET! violated section 

56.5050(b). 

B. Violation of Section 56.7002. 

Section 56.7002 requires that "[e]quipment defects affecting safety be 

corrected before the equipment is used." ET! does not dispute the existence 

of the cracks in the support structure.of the boom of the Robbins drill but 

argues that it did not violate the standard because the drill was out of 

service for repairs when the citation was issued. 7 

In Mountain Parkway Stone. Inc., 12 FMSHRC 960 (May 1990), the 

Commission construed the identical safety standard for underground metalnonmetal mines (30 C.F.R. § 57.9002). The Commission held that a violation of 

6 In MSHA's Program Policy Manual, it is suggested that a 3 dBA reduction 

is significant. Volume IV, Part 56/57 at 40 (08/30/90 Release IV-5). 

"[R]educing the noise only three dBA's will reduce the sound power to one half 

of its previous level." Mining Enforcement an~ Safety Administration, U.S. 

Department of the Interior, Programmed Instruction Workbook No. 11, Noise 

Control, at 27 (1976). (Emphasis in the original). 

7 Because ET! did not dispute whether the cracks in the boom support 

affected safety, we do not address this matter. 

fi 4 
the standard can occur even if the equipment is not in actual use at the time 

the citation is issued. 12 FMSHRC at 962-63. In that case, a boom truck with 

numerous defects was parked at the mine in turn-key condition and had not been 

removed from service. 8 There was no evidence that anyone was engaged in 

repairing the truck or that any employee had been assigned to repair it. 

12 FMSHRC at 963. Moreover, the MSHA inspector testified that he believed the 

tire tracks around the truck were fresh and that the truck was used whenever 

there was a need to load. 12 FMSHRC at 961. The inspector further testified 

that a mechanic employed by Mountain Parkway informed him that the truck had 

been used during the night shift immediately before the inspection. Id. 

The circumstances in this case are distinguishable from those in 

Mountain Parkway. Here, it is undisputed that the Robbins drill was out of 

service and undergoing repair. See 13 FM~HRC at 162. Moreover, the record 

does not establish that the drill had been used in a defective condition. 

In affirming the citation, the judge apparently relied on LaValle's 

testimony in finding that the cracks on the drill boom support structure had 

existed "for some time." 13 FMSHRC at 163. See Tr. 32, 33-34. LaValle's 

testimony concerning the age of the cracks, however, was speculative, because, 

by his own admission, he had no knowledge of structural engineering. In 

addition, the standard requires that safety defects be corrected "before the 

equipment is used," and it is, therefore, incumbent upon the Secretary to 

prove such use or availability for use. The Secretary failed to prove that 

the drill had been used in the defective condition and failed to present any 

evidence addressing its past use. The lack of evidence on this important 

element of the safety standard is significant in the present case because the 

drill was being repaired at the time the citation was issued and was therefore 

not then available for use. We conclude that substantial evidence does not 

support a finding that ETI violated section 56.7002 and, accordingly, we 

vacate the citation. 

C. Assessment of Civil Penalty 

Finally, we address whether the judge's assessment of a $50 civil 

penalty for the violation of section 56.5050(b) was appropriate. Under the 

Mine Act, review is limited to questions raised ~n the Petition for 

Discretionary Review. Section 113(d)(2)(A)(iii) of the Mine Act, 30 U.S.C. 

§ 823(d)(2)(A)(iii). This issue was raised for the first time in ETI's brief. 

In any event, the judge did not err. 

When a judge's penalty assessment is put in issue on review, the 

Commission must determine whether it is supported by substantial evidence and 

whether it is consistent with the statutory penalty criteria. Pyro Mining 

Co., 6 FMSHRC 2089, 2091 (September 1984). The judge found that the violation 

of section 56.5050(b) was not serious, resulted from ETI's ordinary 

8 Among the defects cited by the inspector in Mountain Parkway were: lack 

of stabilizing jacks on the truck to prevent it from overturning; leaks in the 

boom's hydraulic system; missing doors, seat belts, and front and rear lights; 

and a rag used as a cap on the gas tank. 12 FMSHRC at 961. 

65 
negligence, and was abated within the time set for termination. 

13 FMSHRC at 163. 

We find that the $50 civil penalty is supported by the record and is 

consistent with the statutory penalty criteria. ETI does not question any of 

the judge's penalty criteria findings, including his finding of ordinary 

negligence by the operator. ETI only suggests that the judge raised the civil 

penalty.to $50, using the recently increased MSHA minimum penalty as a 

benchmark. There is no indication in this record that the judge's 'action was 

so motivated. Accordingly, ETI has presented no persuasive reasons why we 

should overturn the penalty assessment of the judge. Shamrock Coal Co., 1 

FMSHRC 469 (June 1979). 

III. Conclusion 

The judge's decision is affirmed in part and reversed in part. We 

affirm the judge's finding that ETI v.iolated section 56.5050(b) and his 

assessment of a civil penalty of $50. We reverse the judge's finding that ETI 

violated section 56.7002, vacate his assessment ~f civil penalty, and dismiss 

the Secretary's petition for civil penalty. 

Distribution 

Eva L. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Mr. Volker E. Schmidt, President 

Explosives Technologies, Inc. 

P.O. Box J 

Greenwood, Missouri 64034 

L. Clair Nelson, Commissioner 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Connnission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 66 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

CHARLES T. SMITH 

v. 

KEM COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 27, 1992 

Docket No. KENT 90-30-D 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This discrimination case arising under the Federal Mine Safety and 

Health Act.of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act" or "Act"), 

is before the Commission by way of a petition for discretionary review filed 

on March l, 1991, by Kem Coal Company ("Kem Coal"). In its petition, Kem 

Coal seeks review of Commission Administrative Law Judge William Fauver's 

decision on the merits issued October 31, 1990 (12 FMSHRC 2130), and of his 

final disposition on stipulated damages, costs and attorney fees issued 

January 31, 1991. 13 FMSHRC 166. Kem Coal asserts that substantial 

evidence does not support the judge's conclusion that Charles T. Smith 

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

Mine Act, 30 U.S.C. § 815(c), and that, even assuming such a prima facie 

case was established, the judge failed to address Kem Coal's affirmative 

defense, which alleged that the operator would have discharged Smith in any 

event for activity not protected under the'Mine Act. For the reasons that 

follow, we vacate the judge's decision and remand the matter for further 

proceedings consistent with this decision. 

I. Factual and Procedural Background 

Kem Coal operates a coal processing facility, known as the No. 25 

Preparation Plant, located in London, Kentucky. 12 FMSHRC 2130. The p~ant 

utilizes three shifts per day (morning and afternoon production shifts and a 

night maintenance shift) and employs between 15 and 18 miners. Tr. 40, 58. 

The facility operates as follows: coal coming onto the property is 

fed onto a conveyor system that deposits the coal into two round storage 

bins called stacking tubes or stackers. The stackers are 20 to 25 feet high 

and have windows or chutes at both the top and the bottom. When coal builds 

up in a stacker to the level of the lower windows, it is supposed to spill 

out of the stacker and form a cone-shaped pile below. In turn this pile is 

supposed to fall through a hopper to a feeder system that carries the coal 

by conveyor to the facility's washing plant. When coal from the stacker 

spills away from the hopper area and the accumulation of material is 

67 
insufficient to maintain the automatic feeding system, a bulldozer is used 

to push coal into the feeder to maintain the flow of material to the washing 

plant,- 12 FMSHRC at 2130-31. 

Occasionally, the lower windows of a stacker become clogged with coal 

and mud, causing the stacker to fill up with material which is then 

discharged haphazardly from the upper windows of the stacker. The usual 

corrective procedure is either to use a high pressure water hose to unclog 

the windows or to lower a worker into the stacker on ropes to free up the 

obstruction. 12 FMSHRC at 2131. 

Complainant Charles T. Smith began working at Kem Coal's preparation 

plant in October of 1988. He started as an oiler on the maintenance shift, 

but in April or May of 1989, he was transferred to the afternoon shift as a 

dozer operator. 12 FMSHRC at 2131-32. Tr. 42. His duties included pushing 

coal into the feeders, as described above, and consolidating and compacting 

refuse at a refuse pile located near the stackers. Tr. 59. 

On June 20, 1989, Smith was operating the dozer and pushing coal at 

the No. 2 stacker when the lower windows of the stacker became clogged and 

coal began falling from the upper windows onto the dozer. He radioed the 

plant's control room and asked that his foreman, Henry Halcomb, be notified 

of the problem. According to Smith, Timmy Miller, who was operating the CB 

radio in the control room, subsequently relayed a message from Halcomb to 

Smith to "go ahead and run it." . Thereafter, .a chunk of coal hit one of the 

dozer windows and broke it. Smith again radioed the control room and told 

Miller the windows of the dozer were getting "knocked out of it and we don't 

have enough coal to push." Miller again relayed the message to "go ahead 

and run it." 12 FMSHRC at 2131. 

At that point, a chunk of coal hit a wire in the dozer's electrical 

system and its lights went out. Smith informed the control room and was 

told by Miller that Halcomb had said if Smith did not want to run the 

machine he could park it and go home, and Halcomb would have a mechanic fix 

it. Smith pulled the dozer back from the stacker, repaired the lights, and 

proceeded to push coal into the feeder. Id. 

Later in June, Smith confronted Halcomb and complained to him that 

Halcomb had put his life in danger by making him push coal while material 

from the upper windows was falling on the dozer. According to Smith, 

Halcomb replied that it was Smith's job to push coal. 12 FMSHRC at 2132. 

On July 14, 1989, the incline feed belt that carries coal to the 

washing plant broke and th~ entire afternoon crew was assigned to replace 

it. The work was performed under the direction of Roger Cox, the plant 

superintendent. At some point during the shift, Smith asked Cox when he 

(Smith) would be given a dinner break. Cox replied that, once the belt had 

been replaced, Cox would have someone relieve Smith. Cox apparently went 

home after the belt replacement and no one relieved Smith. About an hour 

and a half before the shift was over, Smith asked Halcomb whether he could 

take a dinner break and was told it was too close to quitting time and he 

would not get to eat. 12 FMSHRC at 2132. 

68 
On July 15, 1989, Smith arrived at the mine with the intention of 

complaining to Cox about what he regarded as general harassment by Halcomb, 

but Cox was not at the mine. Smith went to the training room and found 

Halcomb and other members of the afternoon shift. Smith told Halcomb that 

he was going to complain to Cox about Halcomb's harassment and first cited 

his missed dinner break oh the night before. Halcomb replied that, since 

Cox had supervised the belt replacement, Smith's argument was with Cox. 

12 FMSHRC at 2132-33. As the argument progressed, the other members of the 

crew left the training room, leaving Smith and Halcomb alone. 

12 FMSHRC at 213~. 

Smith raised the June 20, 1989, incident at the coal stacker, when 

Smith felt his life had been put in danger, and threatened to report the 

matter to the Mine Safety Health Administration (MSHA). Halcomb denied that 

he had put Smith's life in danger and claimed that Smith's characterization 

of Halcomb's message as relayed by Miller was 11 hearsay" and that he had not 

said what Smith alleged. Smith then directed a vulgar epithet at Halcomb. 1 

At that point Halcomb, in effect, suspended Smith by telling him to "go to 

the house." Id. 

Both Smith and Halcomb called Cox at home that afternoon but he was 

not in. Tr. 44. Later that evening, Cox returned Halcomb's call and 

Halcomb related his version of the afternoon's events. 12 FMSHRC 2133, 

Tr. 44. On Monday morning, July 17, 1989, Smith went to the mine and met 

alone with Cox. Smith complained to Cox about Halcomb's harassment and 

specifically mentioned the stacker incident and the missed dinner break. 

Cox asked Smith if he had sworn at Halcomb, and Smith told Cox that he had. 

Cox then told Smith that he was fired. 12 FMSHRC at 2133-34. 

The judge found (1) that since Superintendent Cox was also an ordained 

minister, Halcomb "was aware of or could reasonably expect [Cox's] 

sensitivity to profane language and his philosophy of supporting his 

supervisors"; (2) that Halcomb "shaped his factual account to Cox concerning 

the argument with [Smith] to injure [Smith] in Cox's eyes" by inaccurately 

indicating to Cox that Smith used "God damn" in his epithet and that the 

epithet was expressed in front of other members of the crew; (3) that 

Halcomb did not tell Cox that Smith had apologized immediately after using 

the epithet; and (4) that Halcomb did not tell· Cox that Smith had said he 

was going to take his safety complaints about Halcomb to MSHA. 

12 FMSHRC at 2133. 

1 The precise wording of the epithet was in sharp dispute between the 

parties and, as will be discussed below, was a significant issue in the judge's 

ultimate determination in favor of Smith. Smith testified, and the judge found, 

that Smith called Halcomb a "lying son of a bitch.·~ Tr. 24. Halcomb testified 

that Smith called him a "God damn son of a bitching liar." Tr. 88. Cox 

testified that Smith had admitted using the latter phrase when Cox questioned him 

about the incident. Tr. 71. Smith also testified, and the judge found, that he 

apologized to Halcomb immediately after swearing at him, whereas Halcomb 

testified that Smith offered no apology. Tr. 24, 89. Cox testified that neither 

Halcomb nor Smith indicated to him that Smith had apologized. Tr. 63. 

69 
The judge determined that Smith's safety complaints constituted 

protected activity. The judge specifically cited the June 20, 1989, 

incident at the coal stacker when Smith radioed his safety complaints to 

Halcomb through the control room operator; the confrontation in late June 

when Smith complained in person to Halcomb about the stacker incident; and 

the confrontation on July 15, 1989, when Smith reiterated his complaints to 

Halcomb and threatened to take his complaints to MSHA. 12 FMSHRC at 2135. 

The judge found that Halcomb took adverse action against Smith in 

retaliation for his protected activity by suspending Smith without pay on 

July 15, 1989, and by "giving a distorted factual account" of the July 15, 

1989, argument to Cox "with the intention or expectation of influencing the 

superintendent to discharge (Smith]." 12 FMSHRC at 2136. 

As a basis for the latter conclusion, the judge found that "Halcomb 

knew, or could reasonably expect that the superintendent, who was a 

practicing pastor, would be offended by the religious epithet he substituted 

for Complainant's actual language, and that the superintendent would 

consider cursing a foreman in front of his crew a dischargeable offense." 

12 FMSHRC 2136. 

The judge went on to conclude that the "distorted factual account" 

resulted in Smith's discharge because Cox fired Smith for insubordination 

and "cussing" at Halcomb; Cox was unaware that "God damn" was not used in 

the epithet or that the epithet was expressed when Smith and Halcomb were 

alone; and because, according to Cox, if Smith and Halcomb had been alone 

"'it could have probably been resolved', that is, without discharging 

(Smith]." 12 FMSHRC at 2136-37. Lastly, the judge held that even though 

Cox had been deceived by Halcomb, it did not alter the fact that management, 

through Halcomb, had taken discriminatory action against Smith that resulted 

in his discharge. Accordingly, the judge found Kem Coal in violation of 

section 105(c). 

The judge ordered the parties to confer in an effort to stipulate 

damages, including back pay and litigation costs. By a subsequent decision 

issued January 31, 1991, the judge awarded Smith $21,864.18 in back pay and 

other damages plus any additional back pay accruing until his reinstatement 

or his rejection of reinstatement, and attorney fees of $4,522.50. 

II. Disposition of Issues 

The Commission has long held that a miner seeking to establish a prima 

facie case of discrimination under section 105(c) of the Mine Act bears the 

burden of production and proof to establish that he engaged in protected 

activity and that the adverse action complained of was motivated in any part 

by that activity. Secretary o.b.o. Pasula v. Consolidation Coal Co., 2 

FMSHRC 2786, 2797-2800 (October 1980) rev'd on other grounds sub nom. 

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

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

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

protected activity occurred or that the adverse action was not motivated in 

any part by protected activity. Robinette, 3 FMSHRC at 818 n.20. Failing 

70 
that, the operator may nevertheless affirmatively defend against the prima 

facie case by proving that it was also motivated by unprotected activity and 

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

activity alone. See also Donovan v. Stafford Construction Co., 732 F.2d 

954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th 

Cir. 1983)(specifically approving the Commission's Pasula-Robinette test). 

Substantial evidence supports the judge's conclusion that Smith 

engaged in protected activity when he complained about coal falling on his 

bulldozer on June 20, 1989, and when he complained again to Halcomb in their 

confrontations later in June and during their argument on July 15, 1989. 

Furthermore, it is undisputed that adverse action was taken against Smith by 

reason of his suspension without pay on July 15, 1989, and his ultimate 

discharge on July 17, 1989. The Pasula/Robinette test also requires the 

Commission and its judges to determine whether the adverse action complained 

of was motivated in any part by the complainant's protected activity. 

The judge found that Halcomb was motivated to discriminate against 

Smith by Smith's safety complaints and his thr~at to take those complaints 

to MSHA. 12 FMSHRC 2136. The judge went on to find that Halcomb's 

discriminatory conduct included giving "a distorted factual account" of the 

July 15, ·1989, argument to Cox "with the intention or expectation of 

influencing the superintendent to discharge [Smith]." Id. The critical 

elements of what the judge deemed Halcomb's "distorted account" to Cox were: 

(1) that, knowing Cox to be a practicing pastor, Halcomb told him that Smith 

had used a religious epithet; (2) that Halcomb failed to tell Cox that Smith 

immediately apologized; (3) that Halcomb told Cox that Smith swore at him in 

front of the crew; and (4) that Halcomb failed to inform Cox that Smith had 

threatened to take his complaint to MSHA. 

In his decision the judge concludes that Cox, as a practicing pastor, 

would have been offended if the epithet Smith used was religious in nature 

and if it was said in front of other members of the crew. 12 FMSHRC 2136. 

"Halcomb was aware of, or could reasonably expect, the superintendent/ 

minister's sensitivity to profane language and his philosophy of supporting 

his supervisors." 12 FMSHRC at 1233. Aside from Cox's statement that he 

doesn't "use that kind of language" and that Smith had "no right to call a 

man those kind of names," (Tr. 71) Cox's testimony and other record evidence 

do not suggest any special susceptibility to Halcomb's alleged intrigue 

owing to the superintendent's status as a "practicing pastor." While Cox's 

demeanor on the witness stand might have indicated a hypersensitivity to 

what might otherwise be considered garden variety discourse in the mining 

environment, the judge does not indicate that in his decision. 

The judge's conclusions with respect to the motivations and conduct of 

Halcomb appear to be based upon certain credibility determinations and a 

series of inferences drawn from the evidence. It is clear that the judge 

believed the testimony of Smith and disbelieved the testimony of Halcomb and 

Miller with respect to the coal stacker incident, and that he believed Smith 

and disbelieved Halcomb on all disputed points thereafter. Kem Coal 

concedes that it is within the discretion of the trial judge to make such 

credibility determinations, and the Commission has held that a judge's 

71 
credibility resolutions cannot be overturned lightly. Robinette, supra, 

3 FMSHRC at 813; Hall v. Clinchfield Coal Co., 8 FMSHRC 1624, 1629-30 

(November 1986). As for the inferences drawn by the judge, we have held 

that such inferences "are permissible provided they are inherently 

reasonable and there is a logical and rational connection between the 

evidentiary facts and the ultimate fact inferred." Secretary v. MidContinent Resources. Inc., 6 FMSHRC 1132, 1134·(May 1984). 

The confounding factor on review, however, and one vigorously argued 

by Kem Coal, is that the judge implicitly believed the testimony of Cox even 

though in some aspects it supports Halcomb's testimony while contradicting 

Smith's testimony. In other words, while the issues on review do not 

concern the credibility determinations made by the judge in evaluating the 

testimony of Smith versus Halcomb, they do concern the testimony of Smith 

when viewed against certain contradictory statements of Cox. It is neither 

appropriate nor possible for an appellate body to resolve such conflicts. 

Accordingly, we remand the matter to the judge for further credibility 

findings and for analysis and explanation of the bases for his ultimate 

conclusions regarding the nexus between Smith's protected activity and his 

discharge by Kem Coal .. In particular, we direct the judge to set forth the 

evidentiary bases for the first three elements of Halcomb's "distorted 

account, " set forth above. 2 

First, with respect to the allegedly blasphemous component of the 

epithet directed at Halcomb by ·Smith, the judge concluded that Halcomb 

deceived Cox in that regard. Cox testified, however, that he specifically 

asked Smith whether he had called Halcomb "those names," and that he used 

the initials, "G.D. lying S,O.B.," in asking the question. Tr. 71-72. 

According to Cox, Smith admitted using those words. ls;!. As indicated 

above, however, (n.l), Smith denied using "G.D." Second, as to whether 

Smith immediately apologized to Halcomb for swearing at him, while the judge 

credited the testimony of Smith that an apology was ·made, the judge does not 

reconcile Smith's testimony that he had told Cox of the apology (Tr. 36) 

with Cox's testimony that he was not told by either Halcomb or Smith that 

Smith had immediately apologized. Tr. 63. Third, there are unresolved 

ambiguities in the record as to how Cox arrived at the mistaken belief that 

Smith swore at Halcomb in the presence of other members of Halcomb's crew. 

The judge needs to explain the basis for his conclusion that "[t]he account 

that Halcomb gave Cox ... [that] Complainant cursed him in front of the crew 

was inaccurate" (12 FMSHRC at 2133). 

when 

that 

does 

the judge that they were alone 

Smith's testimony makes clear 

was not present (Tr. 28), but it 

regarding the presence of 

Both Smith and Halcomb testified before 

the swearing took place. Tr. 34, 120. 

he told Cox that his (Smith's) brother 

not indicate any conversation with Cox 

2 There appears to be no question as to the fourth element listed 

above, Halcomb's failure to inform Cox that Smith had threatened to take his 

complaint to MSHA. Cox testified that he was not told that Smith had made such 

a statement (Tr. 48) and Halcomb admitted that he "[didn't] think" he relayed 

that information to Cox. Tr. 96. 

72 
'others. Nor does Halcomb's testimony indicate that he discussed the 

presence of witnesses with Cox. 

The only testimony from Cox as to the source of his belief that the 

crew members were present during the swearing is as follows: 

Tr. 63-64. 

Q. (By Mr. Endicott, counsel for Complainant) You went 

under the opinion that this argument that transpired 

between [Smith] and [Halcomb], when the words were 

spoken, there were other people present at the time? 

A~ (By Mr. Cox) Yes, sir. 

Q. Is that what [Halcomb] told you? 

A. Later on, other people came to me and 

rehearsed to me the seriousness of the 

situation, yes. 

Q. What other people would that be? 

A. One boy by the name of Bryan Collins. 

Bryan had -- the argument had gotten 

kind of out of hand and Bryan said he 

just got up and left, he knew it was 

getting bad. And -- well, he's the only 

one that knew of it, first hand, I 

think. I don't think anybody else was 

present. 

Q. But he got up and left at that, didn't 

he, Bryan did? 

A. Yes, after the words. Yes. 

Q. After or before, are you sure? 

A. I think he heard -- actually heard the 

words spoken from what he told me now. 

Just before the above testimony, Cox stated that prior to discharging 

Smith, he had not spoken to anyone but Halcomb and his (Cox's) own 

supervisors. Tr. 63. Cox's testimony is ambiguous as to how he came to 

believe that Smith had "called [Halcomb] these names in front of [Halcomb's] 

people." Tr. 63. Cox's misapprehension of the facts as to who was present 

when the swearing took place admits of several possible explanations, e.g., 

Cox's recollection at trial was hazy; Cox's testimony on the issue was 

purposely evasive; Cox, having be.en told by both Smith and Halcomb that 

others were present when the argument began, mistakenly ~ssumed that some 

crew members were still present when the swearing took place; or, as the 

73 
judge concluded., Cox was deceived by Halcomb into thinking there were 

witnesses to the swearing. While we do not second-guess the judge as to the 

most plausible explanation for Cox's mistaken belief regarding the presence 

of witnesses to the swearing incident, it is necessary for purposes of 

"meaningful review" to know the reasons or bases for the judge's conclusion 

on this critical issue. Secretary v. Anaconda Company, 3 FMSHRC 299, 300 

(February 1981). 

Reconciling the ambiguities surrounding this issue. is important 

because of Cox's frank admission elsewhere in the record that while the 

swearing was "still insubordinate ... if it had been a personal thing, just 

between [Smith] and [Halcomb], it could have probably been resolved, yes." 

Tr. 65. Resolving these ambiguities is a necessary prerequisite to an 

evaluation of Kem Coal's claims that it rebutted Smith's prima facie case 

or, in the alternative, that it affi.rmatively defended against the prima 

facie case by establishing that it would have discharged Smith, in any 

event, for his unprotected activity alone, i.e., his insubordinate swearing 

at Halcomb. We note that the judge did not expressly address the 

affirmative defense issue in his decision. 

We find that the judge's failure to reconcile critical differences in 

the testimony of Smith and Cox and the lack of a clear connection between 

the evidence in the record and certain inferences drawn by the judge, as to 

Halcomb's conduct preclude our meaningful review of the judge's conclusion 

that Smith was discriminated against in violation of the Act. Accordingly, 

we direct the judge to resolve the factual issues we have raised and then to 

determine anew, by applying the Pasula/Robinette test, whether Smith has 

established a prima facie case of discrimination. If the judge so finds, he 

should then determine whether Kem Coal has rebutted that case, or has 

affirmatively defended against it by demonstrating that it would have 

discharged Smith, in any event, for his unprotected activity alone. 

74 
Accordingly, we vacate the judge's decision and remand the matter for 

further consideration in light of the questions raised in this decision. 

Distribution 

Timothy Joe Walker, Esq. 

Reece, Lang and Breeding, P.S.C. 

P.O. !)rawer 5087 

London, Kentucky 40745 

Michael S. Endicott, Esq. 

Ed Spencer's Law Offices 

P.O. Box 1176 

Paintsville, Kentucky 41240 

Jg7D:;1., !is1&::;4 

dL1M 7r&+'l--

L. Clair Nelson, Commissioner 

Administrative. Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

75 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

WAYNE C. TURNER 

v. 

NEW WORLD MINING, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 27, 1992 

Docket No. VA 90-51-D 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

This discrimination proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"). On 

March 28, 1991, Commission Administrative Law Judge Avram Weisberger entered a 

decision finding that respondent New World Mining, Inc. ("New World") had not 

discriminated against complainant Wayne Turner ("Turner") in violation of 

section 105(c) of the Mine Act, 30 U.S.C. § 815(c). 13 FMSHRC 503 (March 

199l)(ALJ). The Commission did not receive from Turner a timely petition for 

discretionary review of the judge's decision. Turner's counsel has filed 

papers that are, in essence, a request to reopen this case. For the reasons 

that follow, we grant the request to reopen so that the Commission may 

consider whether to direct review of the judge's-decision. 

The record reflects that on May 1, 1991, the Commission's Office of 

Administrative Law Judges received a letter with an attachment from Turner's 

counsel dated April 29, 1991, addressed to Judge Weisberger. The letter 

identifies the attachment as a "brief" to be filed in this case. The 

Commission's Docket Office personnel treated these papers as the filing of a 

brief with the judge and not as a petition for discretionary review. No 

direction for review was issued by the Commission and, by_ operation of the 

statute, the judge's decision became a final order of the Commission 40 days 

after its issuance. 30 U.S.C. § 823(d)(l). 

On August 5, 1991, a letter dated August 2, 1991, with attachments, from 

Turner's counsel was received by the Commission's Docket Office. Turner's 

counsel stated that he was forwarding a "Petition for Review" in response to a 

conversation with Commission Docket Office personnel, in which he learned that 

the Commission had not received Turner's petition for discretionary review of 

the judge's decision. Attached to the letter was a document entitled 

"Petition for Appeal," which had not been attached to the April 29 letter. 

76 
On August 29, 1991, the Commission entered an order that afforded Turner 

and New World the opportunity to address whether_ Turner's petition for 

discretionary review was timely filed and whether this case should be 

reopened. In response, New World asserted that the case should not be 

reopened because Turner 's petition for discretionary review, which New World 

received on May 1, 1991, had not been timely filed and because the allegations 

made by Turner in his petition were not supported by the evidence. Turner's 

counsel asserted that he had received the judge's decision on April 2, 1991, 

and had filed Turner's petition for discretionary review on April 29, 1991. 

The judge's jurisdiction over this case terminated when his decision was 

issued on March 28, 1991. 29 C.F.R. § 2700.65(c). Under the Mine Act and the 

Commission's procedural rules, relief from a judge's decision may be sought by 

filing a petition for discretionary review in the Commission's Docket Office 

within 30 days of the decision's issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. 

§ 2700.S(b) & .70(a). The Commission has recognized this 30 day time limit 

and has dismissed petitions for discretionary review filed outside this 

period. See, .!L..,g.._, North American Coal Corp., 2 FMSHRC 1694, 1695 (July 

1980); Haro v. Magma Copper Co., 5 FMSHRC 9, 10 (January 1983). The 

Commission's procedural rules expressly provide that the filing of a petition 

for discretionary review is effective only upon receipt. 29 C.F.R. 

§§ 2700.S(d) & .70(a). In addition, the copies of the judge's decision sent 

to the parties included a document that provides: "PETITIONS FOR DISCRETIONARY 

REVIEW MUST BE RECEIVED BY THE COMMISSION WITHIN"THIRTY (30) CALENDAR DAYS 

AFTER THE ISSUANCE DATE OF THE DECISION TO BE CONSIDERED .... If you mail the 

petition, you should therefore allow enough time for delivery by the thirtieth 

day." (Emphasis in the original.) The record reflects that such a notice was 

sent to, and received by, Turner's counsel's office. 

The thirtieth day after issuance of the judge's decision was Saturday, 

April 27, 1991. In order for Turner's petition for discretionary review to be 

timely filed, it had to have been received in the Commission's Docket Office 

no later than Monday, April 29, 1991. 29 C.F.R. §§ 2700.S(b), .8(a), .70(a) 

(1991). Turner's brief was not received by the Commission until May 1, 1991, 

was not filed in the Docket Office, and was not clearly identified as a 

petition for discretionary review. 

In accordance with Fed. R. Civ. P. 60(b)(l), the Commission has afforded 

relief from final judgments upon a showing of mistake, inadvertence, surprise 

or excusable neglect. See, ~. Lloyd Logging.Inc., 13 FMSHRC 781, 782 (May 

1991). It appears from Turner's counsel's statements in response to the 

Commission's August 29 order that Turner's counsel may have mistakenly 

believed that a petition for discretionary review had to be filed within 30 

days following receipt of the judge's decision. The Commission is aware of 

the existence of a possible excuse, and will afford Turner relief from final 

judgment. We will reopen the case for a determination of whether Turner's 

late-filed petition for discretionary review should be granted. See generally 

Patriot Coal Co., 9 FMSHRC 382, 38_3 (March 1987). 

We note, however, that the Commission's relevant procedural rules are 

clear, that Turner's representative is an attorney, that explicit directions 

77 
for appeal had been forwarded to him by the Commission's Docket Office, and 

that Turner's counsel waited several months before contacting the Commission 

to determine the status of his appeal. Under these circumstances, and 

primarily out of concern that complainant Turner not be denied the opportunity 

to present his petition for review to the Commission, we reopen this case. We 

advise counsel to adhere carefully to all procedural requirements in practice 

before this Commission. See generally 29 C.F.R. § 2700.80(a). 

For the foregoing reasons, this case is reopened for consideration by 

the Commission of whether to grant Turner's petition for discretionary review. 

Distribution 

Donald E. Earls, Esq. 

940 Park Avenue 

P.O. Box 710 

Norton, Virginia 24273 

Karen K. Bishop 

Attorney at Law 

P.O. Box 1438 

Wise, Virginia 24293 

~~~man /k~ 

~/£,,/~,-: Richard V. Backley, CommiSSiOile~ 

Arlene Holen; Commissioner 

L. Clair Nelson, Commissioner 

Administrative Law Judge Avram Weisberger 

Federal Nine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 78 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMM~SSION 

SECRETARY OF IABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

UNITED ROCK PRODUCTS CORP. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006. 

January 27, 1992 

Docket No. WEST 91-425-M 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act"), Commission Chief 

Administrative Law Judge Paul Merlin issued an Order of Default on December 

18, 1991, finding respondent United Rock Products Corp. ("United") in default 

for failure to answer the civil penalty petition filed by the Secretary of 

Labor ("Secretary") and the judge's order to show cause. The judge assessed 

the civil penalty of $3,670 proposed by the Secretary. For the reasons that 

follow, we vacate the default order and remand this case for further 

proceedings. 

On January 14, 1992, the Commission received a letter dated January 10, 

1992, from William Cameron, United's Safety Director, in which Mr. Cameron 

requested that Judge Merlin revoke his default order. Cameron explained that 

on November 6, 1991, he had mistakenly sent United's answer to the Department 

of Labor's Office of Regional Solicitor in San Francisco, California, because 

he had dire.cted all previous correspondence to the Secretary's counsel at that 

location. Attached to Cameron's January 10 letter was a copy of a letter 

dated November 6, 1991, that purports to be United's answer to the Secretary's 

civil penalty petition. 

The judge's jurisdiction over this case terminated when his decision was 

issued on December 18, 1991. 29 C.F.R. § 2700.65(c). Under the Mine Act and 

the Commission's procedural rules, relief from a judge's decision may be 

sought by filing a petition for discretionary review with the Commission 

within 30 days of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. 

§ 2700.70(a). Here, Cameron's letter, received by the Commission on January 

14, 1992, seeks relief from the judge's default order. We will treat that 

letter as a timely petition for discretionary review of the judge's default 

order. See, ~. Middle States Resources, Inc., 10 FMSHRC 1130 (September 

1988). 

79 
The record discloses that United filed a "Blue Card" request for a 

hearing in this matter in response to notification by the Secretary of the 

civil penalties proposed for alleged violations of mandatory safety standards. 

On July 10, 1991, counsel for the Secretary served a civil penalty petition on 

United. Having received no answer to the petition, the judge issued an order 

on October 7, 1991, directing United to file an answer within 30 days or to 

show cause for its failure to do so. As noted, Cameron asserts that he sent 

United's· answer on November 6, 1991, to the Secretary's counsel at the 

Solicitor's Office. Under the Commission's rules of procedure, the party 

against whom the penalty is sought must file an answer with the Commission 

within 30 days after service of the penalty proposal. 29 C.F.R. §§ 2700.S(b) 

and 2700.28. 

It appears that United, proceeding without benefit of counsel, may have 

confused the roles of the Commission and the Department of Labor in this 

adjudicatory proceeding. It also appears that United may have attempted to 

respond to the judge's order to show cause but misdirected that response. 

Although United has brought the existence of a possible excuse to the 

attention of the Commission, we are unable to evaluate the merits of United's 

assertions on the basis of the present record. In light of this, we will 

afford United the opportunity to present its position to the judge, who shall 

determine whether relief from default is warranted. See, ~' Patriot Coal 

Co., 9 FMSHRC 382, 383 (March 1987). 

For the foregoing reasons, we grant United's petition for discretionary 

review, vacate the judge's default order, and remand this matter to the judge 

for further proceedings. United is reminded to file all documents with the 

judge, and to serve counsel for the Secretary with copies of all its filings. 

29 C.F.R. §§ 2700.S(b) and 2700.7. 

80 

IL 

Richard V. Backley, Commissioner ~-

Je~1~is~- /)( 7ij t/JJ1J.{ j ;(j!f::Pk, < 

L. Clair Nelson, Commissioner 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

CLIFFORD MEEK 

v. 

ESSROC CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 31, 1992 

I.AKE 90-132-DM 

ORDER 

On January 23, 1992, ESSROC Corporation filed a petition for discretionary review of the December 24, 1991 decision in this matter. In the 

decision the presiding Commission administrative law judge concluded that a 

violation of section lOS(c) of the Federal Mine Safety and Health Act of 1977 

occurred, 30 U.S.C. § 801 et~- However, the judge did not set forth 

specific monetary relief but ordered the parties to confer in an effort to 

stipulate to the appropriate amount of damages to be aw~rded. Indeed, the 

judge expressly stated that the December 24, 1991 decision was not a final 

disposition of the proceeding. 

Accordingly, the respondent's.petition for discretionary review is 

premature and therefore it is .dismissed without prejudice. See, ~. Joseph 

A. Campbell v. Anaconda Co., 2 MSHC 1519 (1981). 

For the Commission: 

Chairman 

81 
82 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 61992 

JIM WALTER RESOURCES, INC., 

Contestant 

CONTEST PROCEEDING 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) , 

Intervenor 

Docket No. SE 91-714-R 

Citation No. 9883187; 

No. 7 Mine 

Mine No. 01-01401 

DECISION 

Appearances: H. Thomas Wells, Jr·~, Esq., and J. Alan Truitt, 

Esq., MAYNARD, COOPER, FRIERSON & GALE, 

Birmingham, Alabama, for the Contestant; 

William Lawson, Esq., Office of the Solicitor, 

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

the Respondent; 

Patrick K. Nakamura, Esq., and George Davis, Esq. 

LONGSHORE, NAKAMURA & QUINN, Birmingham, Alabama, 

for the Intervenor. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a Notice of Contest filed by the 

contestant (JWR) against the respondent (MSHA) challenging the 

validity of an "S&S" Citation No. 9883187, issued on July 8, 

1991, pursuant to section 104(a) of the Federal Mine Safety and 

Health Act of 1977. The citation charges JWR with an alleged 

violation of the mandatory respirable dust requirements found in 

30 C.F.R. § 70.lOO(a). The respondent filed a timely answer 

asserting that the citation was properly issued and a hearing was 

held in Birmingham, Alabama. The parties filed posthearing 

briefs, and I have considered their respective arguments in the 

course of my adjudication of this matter. I have also considered 

the oral augments made during the course of the hearing. 

83 
Issues 

The issues in this case are (1) whether the contestant 

violated the requirements of 30 C.F.R. § 70.lOO(a), and (2) 

whether MSHA acted arbitrarily and unreasonably when it mandated 

a change in the "designated occupation" required to be sampled 

pursuant to MSHA's respirable dust regulations from code 044 to 

code 060 on the mechanized mining unit, MMU 016-0, the No. 2 

Longwall, at JWR's No. 7 Mine. Additional issues raised by the 

parties are identified and disposed of in the course of this 

decision. 

Applicable statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 301, et seq. · 

2. Commission Rules, 29 C.F.R. § 2700.1, et seq. 

3. Mandatory respirable dust standards, Part 70, Title 30, 

Code of Federal Regulations. 

Stipulations 

The parties stipulated to the following (Tr. 5-6; 22-23): 

1. JWR and the No. 7 Mine are subject to the 

jurisdiction of the Mine Act and the 

Commission. 

2. The respirable dust sample results which 

reflect an average concentration of 2.6 Mg/M3 

of air in the working environment of the 

cited longwall mechanized mining unit (MMu) 

constitutes a violaton of 30 C.F.R. lOO(a). 

3. MSHA's procedures for processing the 

respirable dust samples collected and 

submitted by JWR, including the chain of 

custody, were properly followed. 

4. There is a presumption that the respirable 

dust violation in question, if affirmed in 

this case, is a significant and substantial 

(S&S) violation. 

5. JWR is currently in compliance with MSHA's 

respirable dust requirements on the cited 

MMU, and it came into compliance prior to the 

September 15, 1991, extended abatement date. 

The citation has been terminated. 

84 
Discussion 

The contested section 104(a) "S&S" Citation No. 9883187, is 

signed by MSHA Inspector Judy A. McCormick, and it is dated 

July 8, 1991. It reflects that it was served on JWR by mail, and 

it cites an alleged violation of the mandatory respirable dust 

requirements found in 30 c.F.R. § 70.lOO(a). The cited 

conditions or practices are described as follows: 

Based on the results of 5 samples reported on the 

attached advisory number 0290, the average 

concentration of respirable dust in the working 

environment of mechanized mining unit (MMU) I.D. #016-0 

was 2.6 mq/m3 of air. The operator shall take 

corrective action to lower the concentration of 

respirable dust to within the permissible limit of 

2.0 mq/m3 and then sample each production shift until 5 

valid samples are taken. Samples shall be submitted to 

4800-D Forbes Avenue, Pittsburgh, PA 15213. 

JWR does not dispute the fact of violation, nor does it 

challenge the fact that the five samples which it took indicates 

noncompliance with the dust concentration limits found in 

regulatory section 70.lOO(a). The thrust of JWR's contest lies 

in its challenge to MSHA's ·decision to change the designated 

occupation on which respirable dust sampling is required on the 

No. 2 longwall (MMU 016-0), from designated occupation 044 

(tailgate shear operator), to designated occupation 060 (miner 

who works nearest the return side of the longwall face). The 

change was communicated to JWR by MSHA Form 2000-96, dated May 7, 

1991, and signed by the District No. 7 Manager (Exhibit G-4). In 

a follow-up letter of June 3, 1991, the district manager advised 

JWR as follows (Exhibit C-2): 

* * * * When sampling occupation 060 (miner who 

works nearest the return side of the longwall face), 

the dust sampling instrument shall be alternated from 

person to person according to who is nearest the return 

side of the face (tailgate). For example, when the 

pump is being worn by the tailgate shear operator and 

the taii jacksetter goes on the downwind side of this 

shear operator, the tail jacksetter shall take the dust 

pump from the shear operator and shall wear the dust 

pump for as long as he is the miner working nearest the 

return. The pump shall be alternated from person to 

person following the above procedure. 

MSHA's Testimony and Evidence 

Kenneth Martin, MSHA Supervisory Health Specialist since 

1974, testified that his duties include the review of health 

85 
plans, dust sampling, and coordinating and monitoring dust 

inspection, sampling, and compliance activities. He confirmed 

that the term "high risk occupation" means "an area that has the 

highest concentration of dust that miners could be exposed to", 

and that this is similar to the term "designated occupation". 

The rationale for requiring sampling for both of these is the 

same, and if there is compliance with the dust limits in those . environments where there is the highest concentration of dust, 

one can assume that the other areas will also be in compliance 

(Tr . 2 3 - 2 7 ) . 

Mr. Martin stated that MSHA's dust sampling scheme is aimed 

at measuring the respirable dust in the working atmosphere 

environment at a particular location, and not to measure the dust 

exposure of an individual. He identified an MSHA memorandum 

dated April 4, 1988, and an excerpt from MSHA's policy manual 

which explains the sampling procedures (Tr. 29; Exhibits G-2 and 

G-3). The policy explanation of section 70.207(e) (7), is that 

"if individuals rotate out of a position that's the designated 

area, that the sampling unit would remain with that position and 

not with the individual" (Tr. 30). 

Mr. Martin confirmed that he is generally familiar with 

longwall mining procedures, and he explained the types of miner 

occupations associated with a longwall, and with the use of a 

sketch, he explained the operation of a longwall mining system 

(Tr. 32-38; Tr. 40.-47; Exhibit G-6). He confirmed that longwall 

operations, including the location of employees, vary from mine 

operator to mine operator and they are all not identical 

(Tr. 38). He confirmed that he would expect to find the greatest 

concentration of respirable dust at the tailgate side of the 

longwall face because "the dust that is generated upwind from 

that location should all be represented at that location from all 

your other generation sources". The mine intake air ventilation 

travels through or by all of these sources and then exits through 

the return (Tr. 48). 

Mr. Martin identified exhibit G-4, as the May 7, 1991, MSHA 

notification to JWR that the designated occupation for dust 

sampling was changed from 044, the shear operator on the tailgate 

side, to 060, the person working nearest the return side of the 

longwall face. He confirmed that he was involved in this 

determination and he indicated that the language describing the 

newly designation occupation code is basically the language found 

in section 70.207(e) (7) (Tr. 56). Although this was the first 

change for JWR in his district, he cited two other mine operators 

in the district who also received changes to code 060 from MSHA, 

and he indicated that operators in district No. 5 have also 

received changes. All of these changes have occurred as early as 

1988, and MSHA is presently implementing further changes on a 

mine-by-mine basis. He acknowledged that some longwall mine 

operators do not have the same designated changes as JWR and he 

86 
explained that a decision was made in his district that the 

designated occupation would be changed from 044 to 060 only in 

those instances where the mine operator is out of compliance with 

the dust standard. At the present time, those mines which are in 

compliance are not required to make the change to the 060 

occupation or area designation (Tr. 5). 

Mr. Martin confirmed that pursuant to the previously 

designated 044 designation, the tailgate shear operator would 

have to leave his sampling device with his replacement operator 

in the event there was a change in the persons operating the 

tailgate shear drum. However, since the change to the 060 

designated occupation, the miner working nearest the return air 

side of the longwall working face would be required to wear the 

sampling device regardless of whether he is a shear operator, 

jack setter, mechanic, or electrician. This is because MSHA 

desires a sampling of the employee who works closest to the 

return air side of the face, and that location should represent 

the highest concentration of dust that any miner would be exposed 

to on the longwall face based on the various dust generation 

sources and the manner in which the face is ventilated. He 

identified the location by placing a red "X" mark on the sketch, 

and he confirmed that this is the last location on the face 

before the air enters the return (Tr. 60-64). 

Mr. Martin stated that MSHA implemented the designation 

change in light of the wider longwall face areas being mined and 

increased production, and MSHA's belief that the sampling of the 

044 occupation was not representative of the highest dust 

concentration and miner exposure (Tr. 64). Mr. Martin confirmed 

that MSHA's technical support division has conducted an 

environmental dust control investigation at the JWR No. 4 Mine, 

and he identified Exhibit G-5, as a copy of the report (Tr. 68). 

He further confirmed that the basic manner in which longwalls are 

mined and ventilated, including the route of intake air traveling 

through the dust generation sources and exiting out of the 

returns, is basically the same in all longwall operations 

(Tr. 72). The MSHA report in question recommended that MSHA 

consider changing the designated occupations in the No. 4 

longwall because the 044 occupation did not always have the 

highest dust concentration. Sampling was done at fixed points 

in that mine, and the dust concentrations at these fixed points 

were higher than the 044 designated occupations (Tr. 74). In his 

view, the report supported the decision to change the designated 

occupation to the person working furthest downwind, or within 

48 inches of the corner of the longwall face, and where the dust 

concentrations are higher at the fixed point near the return side 

of the longwall face (Tr. 75). 

Mr. Martin confirmed that pursuant to the designated 

occupation change required of JWR, the sampling scheme in 

question is sampling the environment and not the individual miner 

87 
exposure, and that section 70.207(e) (7) of MSHA's regulations 

permits sampling the environment at the "worst location" where 

all of the "bad air" ends up on its way out of the return 

(Tr. 79) . 

On cross-examination, Mr. Martin stated that prior to 1988 

there was no 060 code designated for the miner working nearest 

the return side of the face, and the typical and common MSHA 

practice at that time was to designate the 044 occupation code, 

which is the tailgate shear operator, and this was the typical 

designation for all longwalls in District No. 7 (Tr. 93). The 

reason for this was that the 044 occupation was the occupation 

normally closest to the return side of the longwall face. 

However, since longwall mining has changed over the years, more 

people are working downwind, and with remote control, people move 

about on the face more, and it has become obvious that the 044 

occupation was not the proper occupation for sampling on a 

longwall operation (Tr. 94). 

Mr. Martin confirmed that in making the change to the new 

occupation code, MSHA did not rely on dust samples collected at 

the cited MMU pursuant to MSHA's policy manual (Tr. 98). He 

explained the failure to sample as follows at (Tr. 99). 

A. In order for them to change the designated 

occupation from what's specified in the regulations, 

this is saying that we need the results of samples to 

make that change. And since we were only changing back 

to what the regulations specified, it's my 

interpretation that samples were not required to make 

that change. 

JUDGE KOUTRAS: So you determined you didn't need any 

samples. You would just make the change without them. 

A. Changing to what the regulation specified. 

Referring to a page from the inspector's handbook, which was 

included as part of his deposition, and which mentions sample 

results, Mr. Martin explained that this requirement applied when 

MSHA was changing its sample procedures to deviate from what was 

required under the regulation (Tr. 100). 

Mr. Martin stated that the tailgate shear operator is not 

necessarily the only occupation normally closest to the longwall 

face return over the course of an eight-hour shift, and that jack 

setters, mechanics, electricians, and others may be present 

downwind closer to the return side than the shear operator 

(Tr. 102). He confirmed that MSHA's current sampling scheme is 

to sample the environment that has all of the contaminated air 

passing by at any given time during the shift, and if the 

88 
environment of that unit is not in compliance, everyone would 

likely also not be in compliance (Tr. 105-106). 

Mr. Martin stated that pursuant to MSHA's current 

designation of the 060 occupation and the instructions given to 

JWR, the dust sampler pump must be passed to the individual who 

at any given time is closest to the "X" location shown on the 

sketch and he explained how this was to be done when different 

people are in that area during the course of a working shift 

(Tr. 107-111). He confirmed that under this sampling procedure, 

the environment, rather than individual miner exposure, is being 

sampled (Tr. 111). 

Mr. Martin confirmed that the mishandling of a pump, by 

turning it upside down, could possibly cause oversized particles, 

but he believed that following proper sampling procedures in 

changing and repositioning the pump should not cause problems 

(Tr. 115). He agreed, however, that mishandling a pump could 

create a sampling problem "depending on how it's mishandled"· 

(Tr. 116). 

Mr. Martin confirmed that MSHA did not rely on the study at 

the No. 4 Mine in making the designated occupation change at the 

No. 7 Mine, and he had no personal knowledge as. whether the 

longwall mining practices in the two mines are the same 

(Tr. 117). He confirmed that some longwall sections in his 

district have the 060 designation, and that once a 044 

designation is out of compliance changes will be made to the new 

060 designation. In the event any 044 designations never go out 

of compliance, MSHA may still consider changing them all to 060 

(Tr. 120). 

Mr. Martin stated that the newly designated 060 occupation 

does not identify any particular individual or occupation, and it 

could apply to any employee who comes within the definition found 

in section 70.207(e) (7). The 060 computer code actually refers 

to anyone to who is in the area closest to the return on any 

given work shift for whatever period of time they are there 

(Tr. 126). He confirmed that a 060 sample over a working shift 

would be a sample of the area where people were working furthest 

downwind (Tr. 126). 

Mr. Martin stated that there was no way to determine whether 

the five sample cassettes supporting the violation in this case 

were worn by five different individuals unless one were to learn 

who was wearing the specific devices on the sampling days in 

questions. He confirmed that the five cassettes found their way 

into the 11 060 occupational zone of hazard", and .the sampling 

results indicated noncompliance (Tr. 127). He confirmed that 

each cassette represents a different sampling day, but the 

cassette may have been worn by any number of people on each of 

those days (Tr. 128-129). The sampling results "tells me the 

89 
area of where people were working downwind, what dust level was 

in the environment" (Tr. 130). The intent .of MSHA's sampling 

scheme is to control the dust in the environment (Tr. 131). 

In response to questions from the intervenor, Mr. Martin 

stated that the concept of measuring the designated occupation 

with the most dust exposure did not originate with the change to 

JWR's 060 designated occupation, and that it had its origins in 

1980 when the "high risk" designated occupation method was placed 

in the regulations. The current procedure allows JWR to use one 

pump rather than putting a pump on everyone on the shift all of 

the time. The regulations do not require that an individual 

miner be sampled, and they only require sampling of the person 

exposed to the most dust, and this is the designated occupation. 

He explained why the pump is required to be placed on the person 

closest to the return (Tr. 144-146). 

Mr. Martin confirmed that the 060 designation has also been 

required in his district at Arch of Kentucky's No. 37 Mine and 

U.S. Steel's Oak Grove Mine (Tr. 147). He confirmed that the 

decision to place any miner downwind of the longwall shear lies 

with the mine operator and.JWR is free to submit a dust plan that 

does not require any miner to work downwind of the shear 

(Tr. 149). He further confirmed that the decision to implement 

the change at the JWR No. 7 mine was based on MSHA's belief that 

the old 044 occupation was not the proper occupation that should 

be sampled as the designated occupation because of the people 

working downwind, the wider faces, and the higher producing 

machinery. Consideration was also given to the comments of 

miners during the dust plan review that miners were working 

downwind (Tr. 162-163). 

MSHA Insoector Judv McCormick testified that she is assigned 

to the health group and that her duties include working with 

operator and MSHA coal dust samples, and answering questions 

regarding sampling and sampling procedures. She identified a 

copy of a June 3, 1991, letter from MSHA's district manager to 

JWR regarding the change in the sampling occupation designation 

and she confirmed that she drafted the letter in response to an 

inquiry from Jerry Kimes and Jack Stevenson, who are employed by 

JWR's safety department (Tr. 187-191; Exhibit C-2). 

Mrs. McCormick confirmed that prior to the date of the letter, 

she had discussed the sampling requirements with Mr. Kimes and 

Mr. Stevenson, and she believed that they understood what was 

required (Tr. 192). 

JWR's testimony and evidence. 

Gerald Kimes, safety supervisor, No. 7 Mine, testified that 

his duties include dust control, and he confirmed that he was 

familiar with the cited 016 MMU, which is the No. 2 Longwall. He 

,confirmed that Exhibit G-6, generally depicts the longwall set90 
up, and that prior to the receipt of the change notice sampling 

was conducted on the tailgate shear operator. This had been a 

longstanding standard practice on all longwall units, and the 

change in the designated occupation is the first one that he was 

aware of. He explained the operation of the sampling dust pump 

device, and although the pump itself is fairly rugged, he 

indicated that the cassette assembly can be mishandled. If the 

entire assembly were turned upside down, oversized particles 

could find their way to the cassette filter, and if the assembly 

is struck sharply, the dust that has already been collected may 

be dislodged (Tr. 193-200). 

Mr. Kimes stated that prior to the designation change the 

dust pump was given to the tailgate shear operator and then given 

to each shift supervisor to give to each shearer operator and it 

stayed with that operator for the entire shift. Pursuant to the 

current 060 designated change the pump is passed from one person 

to another over the course of the shift, and he assumed that four 

or five, and possibly more, people would wear it depending on the 

situation. However he stated that ''I'm not a highly qualified 

longwall man so I can't say about every situation" (Tr. 202). He 

was trained in dust sampling in 1975, and his duties include the 

dust sampling at the mine, but he has never been a "dust 

technician" (Tr. 203). 

Mr. Kimes disagreed with the.change in question because he 

believes that JWR was singled out and that other longwall 

operators are not required to change, and the pumps are likely to 

be damaged when transferred from one person to another. He does 

not have the manpower to keep records as to who wears the pump at 

any given time or how long it is worn. He was also of the 

opinion that the intent of the regulations is to monitor the 

individual exposure of unhealthy concentrations of dust, and that 

the 060 methodology does not give any accurate reading of the 

dust exposure of any individual miner. He could not state whethe~ keeping the pump with the tailgate shear operator was a 

better method of monitoring an individual's dust exposure 

(Tr. 207) . 

On cross-examination, Mr. Kimes confirmed that since 

changing to the 060 designation, there have been no problems in 

obtaining dust samples. He stated that he has never operated the 

longwall equipment and that he does not routinely observe the 

circumstances under which the sampling devices are rotated among 

employees. He acknowledged that mechanics and electricians 

occasionally work downwind of the shear. He was generally 

familiar with MSHA's dust regulations, but he was not familiar 

with the regulatory definition of the designated occupation until 

it was pointed out to him. He was told that the designation to 

the 060 occupation was the result of the mine going out of 

compliance, and he had no prior knowledge that the No. 4 Mine had 

undergone a similar change (Tr. 208-215). He acknowledged that 

91 
one cannot assure that employees downwind of the shear operator 

are not exposed to greater respirable dust concentrations than 

the shear operator (Tr. 228). 

In response to further questions, Mr. Kimes confirmed that 

he was aware that JWR is now in compliance and that the violation 

has been abated. He acknowledged that compliance was achieved by 

five valid samples of the new 060 designation taken at the No. 2 

longwall and submitted by JWR, and that there was apparently no 

mishandling of the pump in those instances (Tr. 252). He 

confirmed that miners are supplied with personal dust protective 

devices and respirators if they request them (Tr. 256-258). 

Deposition testimony. 

·In the course of the hearing, JWR's counsel moved for the· 

admission of portions of the deposition testimony of Mr. Bobby 

Taylor and Mr. James Rivers, previously taken by the intervenor's 

attorney.· These individuals were identified as associate safety 

supervisors who work for Mr. Kimes at the No. 7 Mine. The motion 

was granted, and without objections, the complete depos·i tions 

were received as part of the record in this case (Tr. 261-263). 

James Rivers disagreed with MSHA's requirement that JWR pass 

the pump to the miner who is most downwind because it was his 

opinion that the integrity of the sample is jeopardized when the 

pump is handled and exchanged by many people (Deposition pgs. 90-

91) . . 

Bobby Taylor believed that the passing of the pump was an 

unreasonable requirement because leaving the pump on the location 

all day while people are being switched out is not a 

representative sample of the dust exposure to a miner who may be 

in the area ten-to-fifteen minutes or an hour or two hours 

(Deposition pgs. 37-38). 

Intervenor UMWA Testimony and Evidence 

Ray Lee, JWR longwall mechanic, testified that he is 

responsible for the repair and maintenance of the longwall face 

equipment and that he works at the face every day. He has worked 

at the mine for over ten years, and has been a mechanic for over 

8 years. He worked on the No. 2 longwall owl shift for seven 

years until July of 1991, and he is.presently working on the 

No. 1 longwall. He described his duties downwind from the shear, 

and indicated that he works an average of 3 to 4 hours a shift at 

that location. He stated that he wore a dust sampler only one 

time, but he was not allowed inby the shear with the sampler 

(Tr. 264-271). 

On cross-examination, Mr. Lee stated that sampling is not 

always done on the day shift, and he confirmed that samplers are 

92 
not hung on the mechanics who are not designated occupations. 

The shear may or may not be down when he is working on it 

(Tr. 272) . 

Neil Young, shear operator, No. 7 Mine, stated that he has 

worked.at the mine since December, 1979, and he described his 

duties, which also include shoveling along the beltline and under 

the shields and pans as assigned (Tr. 276-278). He stated that 

he may spend 6 to 10 hours a week shoveling, and that he uses a 

remote control which places him upwind for 15 feet or more. He 

has worked as a shear operator since 1985, and at the No. 2 

longwall since 1987 (Tr. 280). 

Mr. Young stated that he had no trouble passing the pump to 

the next miner during the sampling process and he indicated that 

the pump weighs approximately one pound and can be passed in 15 

to 20 seconds without any interruption to production (Tr. 283-

284). He stated that on one occasion when he was sampled by MSHA 

in March 1991, everyone wore a pump for one week. However, he 

was the only one out of compliance, and after expressing concern 

about this, the longwall coordinator instructed him to sit in the 

dinner hole with the pump on from 8:30 to 2:00 without 

performing any duties (Tr. 286-287). 

JWR's Arguments 

As noted earlier, JWR does not dispute the fact that the 

five dust samples which it collected and submitted to MSHA 

pursuant to section 70.207, resulted in the issuance of th~ 

citation for noncompliance with section 70.lOO(a}, and 

constitutes a violation of that section. JWR's contest focuses 

on several contentions which it believes amounts to an illegal, 

arbitrary, and unreasonable application of the dust standards to 

its mine. 

JWR asserts that the newly designated "occupation" which 

requires sampling is really not an occupational designation to 

which any particular occupation will be exposed to respirable 

dust. JWR contends that sampling the newly designated 060 

occupation does not reflect the individual dust exposure to any 

particular miner and that the sample is in fact a composite 

sample, rather than an individual sample (Tr. 9, 321}. 

JWR maintains that over the years MSHA has uniformly 

designated the tailgate shear operator (designated 

occupation 044) as the occupation required to be sampled by all 

mine operators. Relying on MSHA's argument that the change in 

the designated occupation required to be sampled (060 miner 

working nearest the return} is simply a reassertion of the 

mandate found in regulatory section 70.207(e} (7), JWR suggests 

that MSHA has admittedly improperly applied the regulation since 

it was promulgated in 1980. Conceding that MSHA is free to 

93 
change the designated occupation required to be sampled, JWR 

nonetheless argues that in doing so MSHA must follow its own 

policies and procedures. Citing MSHA's policy manual and an 

excerpt from the mine inspector's manual, JWR maintains that a 

change in the designated MMU occupation may only be considered 

after the results of samples collected by MSHA reflect a need 

for such a change. JWR points out that in this case MSHA has 

conceded that the mandated change in the designated occupation 

from 044 to 060 was not based on any MSHA respirable dust 

sampling or surveys supporting any conclusion that a change was 

needed or warranted (Tr. 11-12; 317-320). 

JWR further contends that MSHA is not uniformly applying the 

change to the newly 060 designated occupation to all of its 

subdistricts, and that in district 5 the change has been applied 

to only three longwalls. JWR points out that Mr. Martin cited 

only one other MSHA district that is changing from the tailgate 

shear operator occupation to the newly designated 060 designation. Under these circumstances, JWR concludes that it has 

been singled out and treated unfairly by MSHA and that the 

mandated change, which has not been admittedly applied by MSHA 

"across the board" to all longwall mining systems, is an 

arbitrary and unreasonable abuse of discretion (Tr. 11-12; 

317-320). 

With regard to the application of Judge Weisberger's 

decision in Consolidation Coal Company, 9 FMSHRC 1509 (August 

1987), JWR asserted that while that case dealt with "passing the 

pump", it involved a specific occupation, namely the tailgate 

shearer, and the pump was required to be worn by whoever was in 

that location at any given time. In the instant case, however, 

JWR pointed out that it is difficult to determine that any 

particular person will be nearest the return side of the face at 

any given time, and that several different occupations may, at 

any given time during the course of the shift, come within the 

definition of "the miner who works nearest the return side of the 

longwall face". Under the circumstances, JWR concludes that this 

would result in a continual passing of the pump, and that each 

time the pump is passed, there is a risk of an invalid sample 

because the pump can be turned over or dropped (Tr. 14). JWR 

expressed concern over the problems which may result from passing 

the dust sampling device from one miner to another (Tr. 321-322). 

MSHA's Arguments. 

MSHA asserts that its decision to change the previously 

applied occupation code 044 (longwall operator tailgate side) to 

the newly designated 060 occupation (miner who works nearest the 

return side of the longwall face), merely changed the designated 

occupation to conform with the occupation set forth at 30 C.F.R. 

§ 70.207(e) (7), and that the district manager simply directed JWR 

to sample the occupation on the longwall section as defined by 

94 
that mandatory regulatory standard. Citing the appropriate 

statutory language of the Mine A.ct, and the implementing 

regulations found in Part 70, Title 30, Code of Federal 

Regulations, MSHA concludes that it acted clearly within its 

statutory and regulatory authority when it directed JWR to sample 

the newly designated 060 occupation. 

MSHA states that in terms of the actual mining process, the 

060 designated occupation could include only one miner or rotate 

among several miners during the course of a regular work shift. 

If the same miner remains in the occupation which works nearest 

the return air side during the work shift, it is MSHA's position 

that the dust sampling device must remain on that one single 

individual. However, in the event JWR's work practices resulted 

in several miners performing, at different times, in the 

occupation which worked nearest the return side, then the 060 

designation would require that the sampling device be alternated 

or passed to whomever is working nearest the return air side. 

MSHA asserts that it has determined that the return air side 

of the cited longwall unit, which it has characterized as the 060 

designated occupation for any miner who performs works in that 

area, is the area which has been deemed to have the greatest 

concentration of respirable dust. MSHA's position is that the 

miner who is closest to the return air side, or "designated 

occupation", is required to wear the dust pump during sampling 

regardless of who he may be. As noted above, if one miner stays 

at the location of the designated occupation, the sampling pump 

must stay with him as long as he is there. However, if he leaves 

the area for any reason and someone else comes there to perform 

any work, the pump must be passed from the miner who leaves to 

the newly arrived miner in order to constantly monitor the 

atmospheric environment in that area (Tr. 10-11; 15-18). 

In further support of its position, MSHA asserts that the 

Mine Act clearly speaks in terms of "mine atmosphere" and 

requires mine operators to continuously maintain the quality of 

air to which miners are exposed within underground coal mines. 

MSHA argues that the regulations· have consistently adopted a 

"high risk" occupation sampling approach which is based upon the 

rationale that if persons in high-risk occupations are found not 

to be overexposed to respirable dust, then it could be safely 

concluded that other miners, in less risky occupations, are 

protected from excessive concentrations of respirable dust. 

Citing the preamble to its regulations, 45 Fed. Reg. 23,990, 

23,998 (April 8, 1980), which were affirmed in American Mining 

Congress v. Marshall, 671 F.2d 1251 (10th Cir. 1982), MSHA points 

out that samples for the high risk occupation measure the mine 

atmosphere in locations in the active workings, rather than 

exposure of any individual miner for the duration of a shift. 

MSHA concludes that such a sampling procedure measures the mine 

95 
atmosphere in the area of a work position, and that this method 

of sampling at the working face has been continued under the 

regulations by providing designated occupation sampling in each 

mechanized mining unit. MSHA emphasizes the fact that 

"designated occupation samples are taken in the environment of 

the occupation in the mechanized mining unit that is exposed to 

the greatest concentration of respirable dust". 

During the course of oral arguments at the hearing, MSHA's 

counsel pointed out that the designated occupation sampling is 

indeed area sampling, notwithstanding the use of the word 

"occupation", and that what is being sampled is the area closest 

to the longwall return airside, and if any miner is exposed to 

any dust in that area, he must wear the dust pump (Tr. 21). 

Counsel reiterated that MSHA's rationale in requiring sampling of 

the newly designated 060 occupation is that if one samples the 

area designated as having the greatest concentration of 

respirable dust, and it is in compliance, then everyone else 

outby that area would be in compliance (Tr. 83). Counsel stated 

that "you've got to maintain the environment in compliance", and 

that MSHA's theory is "the furthest he (miner) goes towards the 

return air side, he is going into greater concentrations of 

respirable dust" (Tr. 85-86). 

MSHA takes the position that it has not deviated from the 

regulatory definition of the designated occupation and that it 

has complied with it. In response to JWR's contention that MSHA 

failed to follow its policy guidelines when it mandated the 

change to the new designated occupation, MSHA's counsel pointed 

out that the policy manual explanation of section 70.207, is an 

interpretation of the regulations and that section 70.207(e), 

sets forth the procedure to be followed in the event MSHA is 

deviating from the regulation in designating an occupation for 

sampling. Since MSHA has not deviated from the regulation in this 

case, counsel concluded that there is no need for a comprehensive 

dust survey or analysis to support the mandated change in 

question. 

Citing the court decisions in American Mining Congress v. 

Marshall, 671 F.2d 1251 (10th Cir. 1982), and Consolidation Coal 

Company v. FMSHRC, 824 F.2d 1071, 1086 (D.C. cir. 1987), counsel 

further pointed out that the courts in those cases approved of 

MSHA's requirements regarding the sampling of the mine 

atmosphere, rather than an individual miner, as an appropriate 

method of achieving the intent of Congress in insuring compliance 

with the statutory and regulatory respirable dust requirements 

(Tr. 310-314). 

In response to JWR's contention that it has been singled out 

for enforcemeDt, MSHA's counsel pointed out that the 

section 70.207(e) (7) requirement for sampling the miner who works 

96 
nearest the return air side of the longwall working face has been 

in effect since 1980, and that designated occupation 060 ha~ been 

in place in MSHA District No. 5 since 1988. Counsel asserted 

that JWR's mine is not the first mine subjected to the 060 

designation, and that other mine operators nationwide have this 

designation. Counsel further argued that it is not disputed that 

the dustiest area on a longwall is the area nearest the return 

side of the longwall face. Since the entire purpose of the 

regulatory scheme is to monitor the mine atmosphere, counsel 

concludes that to measure anything else would be a disservice to 

miners and would be inconsistent with the statutory language 

(Tr. 314-315). 

Citing Judge Weisberger's decision in Consolidation Coal 

company v. Secretary of Labor, 9 FMSHRC 1509 (August 1987), MSHA 

asserts that the judge addressed the issue of who constitutes 

"the miner who works nearest the return air side", and relying on 

the plain language of section 70.207(e) (7), he concluded that a 

violation of that section occurred since the respirable dust 

sampling device was not alternated between the two miner as they 

changed position on the longwall face. MSHA points out that the 

judge specifically noted that the failure to transfer the 

sampling device to the miner who worked in the tailgate position 

had" the effect of not providing an accurate indication of 

exposure of coal dust", Consolidation Coal Company, supra, at 

1512. 

The UMWA's Arguments 

The UMWA has expressed its agreement with the position taken 

by MSHA in this case. The UMWA takes the position that "passing 

the pump" (dust sampling device), provides the safest net for all 

of the miners on the longwall face, and that if the pump is 

passed to the person closest to the return, and the dust sample 

is in compliance, then one can be sure that all of the miners 

working on the face will be exposed to dust which is within the 

legal limits (Tr. 12-13). The UMWA also believes that the 

redesignation of the occupation in question for sampling not only 

complies with MSHA's regulation, but it also provides a safeguard 

for mine operators who may "try to beat the system" (Tr. 299). 

Further, the UMWA believes that in order to measure the dust 

adequately, the pump should stay on the face (Tr. 300). 

The UMWA's counsel asserted that the intent of sampling is 

to prevent miners from contracting black lung. Given the nature 

of longwalls, counsel asserted that the dust pump must be passed 

in order to determine the worst dust concentration. Only in this 

way can one det.ermine that all miners are breathing clean air 

(Tr . 319 - 3 2 0 ) . 

97 
Findings and Conclusions 

Section 202(b) (2) of the Act, 30 U.S.C. 842(b) (2), provides 

in relevant part that: 

. • . each operator shall continuously maintain the 

average concentration of respirable dust in the mine 

atmosphere during each shift to which each miner in the 

active workings of such mine is exposed at or below 2.0 

milligrams of respirable dust .•• (emphasis added). 

The purpose of this respirable dust limitation is stated in 

section 20l(b) of the .Act, 30 u.s.c. 841(b), as follows: 

. . . it is the purpose of this title to provide to the 

greatest extent possible, that the working conditions 

in each underground coal mine are sufficiently free of 

respirable dust concentrations in the mine atmosphere 

to permit each miner the opportunity to work 

underground during the period of his entire adult 

working life without incurring any disability from 

pneumoconiosis or any other occupation-related disease 

during or at the end of such period. (emphasis added). 

The statutory limitation of 2.0 milligrams of respirable 

dust found in section 202(b) (2) of the Act is reiterated in the 

Secretary's regulations at 30 C.F.R. § 70.lOO(a). JWR is 

charged with a violation of this regulatory standard, which 

provides as follows: 

(a) Each operator shall continuously maintain the 

average concentration of respirable 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 respirable 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). 

MSHA's dust sampling procedures are found in Subpart c, 

Part 70, Code of Federal Regulations. Section 70.207(a) requires 

a mine operator to take five valid samples from the designated 

occupation in each mechanized mining unit on a bimonthly basis. 

The term "designated occupation" is defined by section 70.2(f), 

as "the occupation on a mechanized mining unit that has been 

determined by results of respirable dust samples to have the 

greatest respirable dust concentration"~ As correctly noted by 

MSHA in its pretrial memorandum, the regulations have consistently adopted a "high-risk" occupation sampling approach which 

is based upon the rationale that if persons in high-risk 

occupations are found not to be overexposed to respirable dust, 

98 
then it could be safely concluded that other miners, in less 

risky occupations, are protected from excessive concentrations of 

respirable dust. See: American Mining Congress ("AMC") v. 

Marshall 671 F.2d 1271 (10th Cir. 1982), where the court upheld 

MSHA's designated area respirable dust sampling regulations 

promulgated in 1980. In that case, the court noted that "the 

designated occupation sampling program is itself an an area 

sampling program", and stated as follows at 671 F.2d 1256: 

The Secretary has demonstrated a rational basis for the 

designated area sampling program: if the atmosphere in 

the area of a known dust generation source is in 

compliance with the statutory standard, then it can 

safely be assumed that· all miners are protected from 

ov,erexposure to respirable dust. This assumption is 

justified since no one individual constantly works next 

to an outby dust generation source over the course of 

an entire shift. 

The designated occupations upon which the dust sampling 

device is to be placed are identified in section 70.207(e) (1) 

through (10). The relevant section applicable to the cited 

mechanized mining unit (MMU), No. 2 Longwall, in this case is 

section 70.207(e) (7), which provides as follows: 

(e) Unless otherwise directed by the District Manager, 

the designated occupation samples shall be taken by 

placing the sampling device as follows: 

* * * 

(7) Longwall section. 

the return air side of 

along the working face 

inches of the corner; 

* * * 

On the miner who works nearest 

the longwall working face or 

on the return side within 48 

MSHA's policy application with respect to the designated 

occupation sampling procedures pursuant to section 70.207, are 

found in the following: 

* 

1. CMS & H Memo No. HQ-88-44-H (6009), April 4, 1988, from 

MSHA's Administrator for Coal Mine Safety and Health to 

all District Mangers, which states as follows (Exhibit 

G-2): 

Recently, it has come to our attention that 

both operator and inspector sampling of 

designated occupations (DO's), in some 

instances, may not be representative of the 

dust exposure of that occupation. This is 

because the sampling device is often kept 

with the individual miner who may not be 

99 
performing the duties of the DO during the 

entire shift. MSHA standards as set forth in 

30 C.F.R. § 70.207 require that dust samples 

be taken "from the designated occupation" in 

each mechanized mining unit (MMU). Under 

this rule and as established in policy (page 

II-105, Coal Mine Health and Safety 

Inspection manual), correct sampling 

procedures require the sampling device to 

remain at the DO rather than with the 

individual miner, even when miners change 

positions or alternate occupations during the 

shift. In this way, all miners on the MMU 

are assured of being protected from exposure 

to excessive levels of respirable dust if the 

DO's exposure is at or below the applicable 

dust standard. Conversely, the practice of 

keeping sampling devices with individual 

miners can.result in measurements of dust 

exposure that significantly underestimate the 

actual exposure of the DO if the miner 

changes work positions during the shift and 

takes the sampling device with him to other 

occupations. 

Improper sampling of DO's has been reported 

and observed particularly at longwall 

operations. Some specific examples of 

improper sampling procedures are described in 

Attachment 1. Section 70.207(e) (7) requires 

that, except as otherwise directed by the 

District Manger, longwall DO dust samples 

must be taken (1) on the miner who works 

nearest the return air side of the longwall 

working face, or (2) along the working face 

on the return side within 48 inches of the 

corner. Therefore, when sampling is to be 

done with respect to either (1) or (2), the 

particular sampling procedure employed should 

be identified in the operator's ventilation 

system and methane and dust control plan. In 

addition the following newly established 

codes should be entered in the Occupation 

Code box (Item 11) of the dust data card: 

case (1) 060-Longwall (Return-Side Face 

Worker); and, case (2) 061 - Longwall 

(Return-Side Fixed). For instance, when 

sampling is done on 060~ the sampling device 

must remain with the miner working nearest 

the return air side of the longwall working 

face at all times, even when the miner who 

was being sampled earlier in the shift is no 

100 
longer the one working nearest the return air 

side. 

In many cases, District Managers have directed sampling 

of DO's other than those specified in Section 70.207. 

The typical DO's being directed to be sampled are 

longwall shearer operators. When sampling is conducted 

at these other occupations, identified through MSHA 

sampling as being exposed to the highest dust 

concentration on the MMU, the sampling device must be 

kept with the DO being sampled during the shift. It is 

not to remain with the miner if duties or work 

positions change during the shift. 

2) MSHA's Program Policy Manual, Vol. V, Part 70, 

July 1, 1988, which states in relevant part as follows 

(Exhibit G-3): 

(e) If the operator's mining procedures result in the 

changing of miners from one occupation to another 

during a production shift, the sampling device must 

remain on or at the designated occupation (DO). For 

example, if an operator alternates the duties of the 

continuous operator on a one-half shift basis between 

the continuous miner operator and helper, the dust 

sampler shall be worn for one-half of a shift by the 

continuous miner operator and the other one-half of a 

shift by the helper, while each is operating the 

continuous mining machine, or the sampler shall remain 

on the machines required by this section. 

A change in the designated occupation of an MMU will be 

considered after the results of samples collected by 

MSHA indicate that a work position other than those 

identified in this section should be designated for 

bimonthly sampling. When the results of a sampling 

inspection demonstrate appreciably higher respirable 

dust levels at a nondesignated occupation within an 

MMU, consideration should be given to changing the 

designated occupation. 

JWR's assertion that requiring it to sample the newly 

designated 060 occupation, which may involve more than one miner 

while the sampling pump is passed, does not accurately measure 

the dust exposure of any one particular miner and is therefore 

flawed, is rejected. A similar contention was made in American 

Mining Congress v. Marshall, supra, where it was argued that the 

area sampling program did not provide an accurate measure of any 

individual miner's dust exposure. The court rejected this 

argument, concluding that the Secretary's sampling method 

provided reasonable approximation of actual exposure. Commenting 

101 
on the merits of area sampling and personal sampling, the court 

stated in relevant part as follows at 671 F.2d 1256-1257: 

* * * * Nothing in the record supports the conclusion 

that either type of sampling provides a perfect measure 

of exposure to respirable dust. Since there is no 

perfect sampling method, the Secretary has discretion 

to adopt any sampling method that approximates exposure 

with reasonable accuracy. The Secretary is not 

required to impose an arguably superior sampling method 

as long as the one he imposes is reasonably calculated 

to prevent excessive exposure to respirable dust. on 

this record, the difference between area and personal 

sampling is not shown to be so great as to make the 

Secretary's choice of an area sampling program 

irrational. Keeping in mind that our task is not to 

determine which method is better, we hold that the 

Secretary's choice of area sampling over personal 

sampling is not legally arbitrary and capricious. 

We are not unmindful that area sampling may effectively 

require lower dust levels than might be required under 

a personal sampling program. This is because an 

operator might conceivably be cited for a violation of 

the 2 mg./m3 standard on the basis of area samples even 

though no individual miner was exposed to more than 2 

mg./m3 of respirable dust during a shift. The fact 

that in theory the regulation may require operators to 

maintain a dust level below 2 mg./m3 in its person-byperson impact does not render the regulation legally 

arbitrary and capricious. We repeat that all proposed 

sampling methods are less than perfect and are designed 

to provide only estimates of actual exposure. Since 

measurement error is inherent in all sampling, the very 

fact that Congress authorized a sampling program 

indicates that it intended some error to be tolerated 

in enforcement of the dust standard. The method 

selected by the Secretary, while perhaps more 

burdensome in its impact on mine operators than other 

methods, is not beyond the scope of his discretion. 

* * * * Control of dust at the source will obviously 

contribute to reducing the level of personal exposure. 

By contrast, the results of personal samples do not 

allow identification of dust sources due to the 

movement of miners through various areas of the mine 

during the course of a working shift. Id. Thus, while 

a personal sampling system makes possible the 

identification of discrete individuals who have been 

overexposed, it does nothing to ensure reduction of 

dust generation because the source of the dust cannot 

be determined. Therefore, it clearly appears that area 

102 
sampling can rationally be found to be superior to 

personal sampling as a means of enforcing (as opposed 

to merely measuring) compliance with the 2 mg./m3 

standard. 

JWR's contention that the passing of the dust pump from 

miner to miner during the sampling cycle may jeopardize the 

integrity of the sample because of mishandling is rejected. JWR 

presented no evidence to support any conclusion that the five 

samples which it took and submitted to MSHA, and which reflected 

noncompliance, were in any way contaminated or otherwise invalid 

because of any abuse or mishandling. Indeed, JWR's safety 

supervisor Kimes acknowledged that the five samples subsequently 

taken to abate the violation were apparently not mishandled, and 

shear operator Young, who works on the longwall, testified 

credibly that he has had no problems in passing the pump to other 

miners and that the pump can be passed rather quickly without any 

interruption to production. Further, as noted by the D.C. 

Circuit in Consolidation Coal Company v. FMSHRC, 824 F.2d 1071, 

1088 (D.C. Cir. 1987), MSHA's Part 70 regulations contain 

detailed procedures for mine operators to follow in taking 

respirable dust samples, and that any risks resulting from misuse 

of sampling equipment or deliberate contamination of samples lies 

with the mine operator. 

I find no merit in JWR's contention that MSHA has failed to 

follow its own policy in mandating the change in the designated 

occupation sampling requirement. I agree with MSHA's position 

that the policy references which mention sampling as a condition 

precedent to any change in the designated occupation applies in 

those instances where MSHA's district manager has directed a 

change in a designated occupation other than the one specifically 

referred to in section 70.207(e) (7). In other words, if the 

change involves an occupation other than 060 (miner who works on 

the return side of the longwall face), then the policy language 

seemingly would require sampling to justify that change .. In the 

instant case, MSHA's mandated "change" was in effect an 

affirmation of the specific requirements found in section 

70.207(e) (7), and JWR has not rebutted the fact that the 

regulatory designated occupation is in fact the area which has ' 

the highest concentration of respirable dust on the longwall unit 

in question. 

I find some merit in JWR's arguments that MSHA has not 

applied the requirement for sampling the 060 designated 

occupation "across the board" to all mine operators. Since 

MSHA's position in this case with respect to the requirement that 

JWR sample the 060 occupation is based on its assertion that it 

is simply relying on the specific requirement found in section 

70.207(e) (7), I find it somewhat contradictory that MSHA has not 

seen fit to apply the regulation to all mine operators. However, 

103 
on the facts of this case, I cannot conclude that JWR has been 

prejudiced or arbitrarily singled out for special treatment. 

Mr. Martin's credible and unrebutted testimony reflects that 

other mine operators in the JWR enforcement district, as well as · 

in at least one additional district, have also been required to 

sample the 060 designated occupation pursuant to section 

70.207(e) (7). Mr. Martin confirmed that MSHA intends to 

implement further changes on a mine-by-mine basis as those mines 

are found to be out of compliance with the dust requirements 

based on sampling of occupations other than 060, and that these 

mines will in the future be required to sample the 060 

occupation. · 

As noted earlier, JWR does not dispute the fact that the 

dust sample results relied on by Inspector McCormick in.issuing 

the citation establish that the average concentration of 

respirable dust in the working environment of the cited 

mechanized mining unit (MMU) was 2.6 milligrams of respirable 

dust per cubic meter of air, and that this exceeded the 

regulatory limit of 2.0 milligrams of respirable dust per cubic 

meter of air found in the cited section 70.lOO(a). 

JWR's contention that MSHA acted unreasonably and 

arbitrarily when it directed it to change the designated 

occupation from occupation code 044 to 060 for purposes of 

sampling to insure compliance with section 70.lOO(a), is 

rejected. I agree with MSHA's position in this case, and I 

conclude and find that in mandating the change in the designated 

occupation, MSHA acted within its authority and in Strict 

compliance with the sampling procedures found in section 

70.207(e) (7), and in so doing, it acted reasonably in carrying 

out the intent of Congress and the Act to insure that miners are 

protected from excessive concentrations of respirable dust. 

Under the circumstances I further conclude and find that MSHA has 

established a violation in this case by a preponderance of the 

credible evidence, and the contested citation IS AFFIRMED. 

ORDER 

The contested "S&S" citation No. 9883187, July 8, 1991, 

citing a violation of 30 c.F.R. § 70.lOO(a), IS AFFIRMED. The 

contest filed by JWR is DENIED AND DISMISSED. 

~~u~ Administrative Law Judge 

104 
Distribution: 

H. Thomas Wells, Esq., J. Alan Truitt, Jim Walter Resources, 

Inc., P.O. Box 830079, Birmingham, AL 35283-0079 (Certified 

Mail) 

William Lawson, Esq., Office of the Solicitor, U.S. Department of 

Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 35235 

(Certified Mail) 

Patrick K. Nakamura, Esq., LONGSHORE, NAKAMURA & QUINN 

suite 300, New South Federal, 2100 First Avenue North 

Birmingham, AL 35203 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 

900 Fifteenth St., NW, Washington, DC 20005 (Certified Mail) 

/ml 

105 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 81992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 91-18 

A. C. No. 40-03011-03509 

v. s & H Mine #7 

S & H MINING, INCORPORATED, 

Respondent 

DECISION 

Appearances: Mary Sue Taylor, Esq., Nashville, TN, 

for Petitioner; 

Before: 

Mr. Paul G. Smith, Lake City, TN, 

for Respondent. 

Judge Fauver 

The Secretary seeks a civil penalty for an alleged violation 

of an electrical safety standard, under § 105(d) of the Federal 

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

Having considered the hearing evidence and the record as a 

whole, I find that a ~reponderance of the substantial, reliable, 

and probative evidence establishes the following Findings of Fact 

and further findings' in the Discussion below: 

FINDINGS OF FACT 

1. S&H Miriing, Inc., owns and operates S&H Mine No. 7, an 

underground coal mine, in Campbell County, Tennessee. The mine was 

opened in April, 1989. Paul Smith and Bob.Swisher are owners of 

the operation. The mine produces coal for use in or substantially 

affecting interstate commerce. 

2. MSHA Inspector Don McDaniel, who specializes in 

electrical inspections, issued § 107(a) Order No. 3381336 on May 

18, 1990, tq Tommy McCool, Mine Superintendent of No. 7 Mine, 

alleging the following condition as an imminent danger: 

[T]he high-voltage power line, 12,470 volts, 

that supplies power to the mine was installed 

106 
from 8'6" to 15' off the ground from the first 

set of disconnection devices to the highwall 

which is a distance of approximately 300 feet. 

3. Citation No. 3381337 was issued by Inspector ?-lcDaniel for. 

a violation of 30 C.F.R. § 77.807 based on this condition. Section 

77.807-1 requires that: 

High-voltage powerlines located above driveways, 

haulageways, and railroad tracks shall be installed 

to provide the minimum vertical clearance specified 

in National Electrical Safety Code: Provided, 

however, that in no event shall any high-voltage 

powerline be installed less than 15 feet above 

ground. 

4. Inspector McDaniel began his electrical inspection of the 

mine one to two weeks before issuing the § 107(a) order and 

§ 104(a) citation. When he began the inspection, he told McCool 

that he wanted to know the height of high-voltage lines installed 

on a slope going down to the high wall. The high-voltage lines 

have four wires: three phase wires and a neutral ground wire. 

Each phase wire carries 7, 200 volts, and the entire system has 

12,470 volts. There is no pro·tective insulation jacket on the 

high-voltage lines, which are bare wires when hung. The magnetic 

field around each phase wire is about two feet. Both MSHA 

standards and the National Electrical Code require that highvoltage wires be hung at least 15 feet above the ground in areas 

where peop1e may travel to avoid any likelihood of contact with the 

wires. · 

5. Normally, the three phase wires are hung about two to 

three feet above the neutral (ground) wire in a high-voltage 

system. Phase and ground wires are purposefully hung with a 

natural sag to allow some give. 

6. The high-voltage wires at Mine No. 7 were strung on three 

poles. Two poles belonged to S&H Mining and a third pole belonged 

to Clinton Power Utility. The wires went from the Clinton Power 

Utility pole at the top of a hill through the two company poles and 

then over the highwall and down to a substation. The phase wires 

were loose with a lot of sag in them, and there· was a possibility 

that the wind would blow them together. 

7. The powerline was installed by a contractor who had been 

recommended to S&H Mining and had done other work for the company. 

The line was inspected by Clinton Power and by a state electrical 

inspector before it was energized. 

8. The road leading to Mine No. 7 is a public access road to 

within 1/4 mile of the mine site. Graveyards are at the top of the 

hill. The road forks before reaching the mine site. Persons have 

107 
access to the area above the mine by this road, and the area is 

traveled by the public including children, hunters and four~wheel 

drive vehicles. In addition, goats roam the area above the 

highwall, adding to the attraction of visitors to the area. There 

are no barriers to this area. 

9. A road leads from the mine site up the hill above the 

highwall, where the terrain is rough to steep. 

10. Under the Act and regulations, the company is required to 

check the electrical system once every 30 days as part of their 

electrical exam .. The examiner must check the high-voltage lines to 

see whether insulators or the neutral wire is broken and to check 

the height of the high-voltage lines. The area where Inspector 

McDaniel measured the wires is within the scope.of these required 

exams. It is also subject to travel by the public, since there are 

no barriers preventing public access. 

11. Inspector McDaniel arrived at the mine on Friday, May 18, 

1990, and contacted McCool. The two proceeded to the top of the 

hill above the highwall where the company poles were located. 

McDaniel took measurements of the ground wire and the phase wires. 

McCool was the only company official present when these 

measurements were made. McDaniel began making measurements at the 

metering base at the top of the hill and measured again about 300 

feet past the two company poles toward the highwall edge. He wore 

high-voltage gloves and used a measuring stick. McDaniel's notes 

show that the distances from the earth to the wires were: ground 

neutral line measurements 14'6", 12', 10'8", and phase lines 11'6" 

to 9 '6". He stopped measuring about 20 feet from the high wall 

because he felt that he was putting himself in danger to go any 

farther. 

12. The terrain in the area past the last company pole is 

very steep. Because of his fear of heights, McCool did not 

accompany the inspector all the way down the hill. He could see 

McDaniel at all times, but he could not always see the measurements 

being taken or the wire that was being measured. 

13. Upon finding the above measurements, McDaniel told McCool 

that he was issuing an order based on the low heights of the highvol tage lines. McCool and McDaniel then walked back down the hill 

to the bottom of the highwall. 

14. McDaniel's practice as an electrical inspector was that, 

when he found high-voltage lines as low as Respondent's he took 

them out of service ·immediately because of the danger of 

electrocution. He has issued imminent danger orders in the past 

for phase wires being less than 15 feet from the ground. McDaniel 

told McCool that he would have to remove power from the line. 

15. Company officials were disturbed by the imminent danger 

108 
order and asked McDaniel to point out the conditions to them. 

McDaniel went back up the hill.with them and took a second set of 

measurements. He was accompanied by White, McCool, and Smith. 

White went to within 50 feet of the location where McDaniel took 

the second set of measurements. Smith was about 300 feet from 

McDaniel when he took the second set of wire measurements. 

16. White testified that, based on what he saw, he did not 

doubt that the phase wires were less than 15 feet of the ground, 

but that he did not personally witness McDaniel measure a phase 

wire. Smith stated that McDaniel did not in fact measure a phase 

wire, and that the order was based on the ground wire measurements 

alone. However, Smith could not see which wires were actually 

measured by McDaniel. 

DISCUSSION WITH FURTHER FINDINGS 

The parties are in sharp dispute whether Inspector McDaniel 

measured phase wires and the ground wire or measured only the 

ground wire. 

Paul Smith, co-owner of S&H Mining and an active supervisor at 

No. 7 Mine, testified that, in the second measurements, Inspector 

McDaniel did not measure the phase wires and all indications to 

Smith were that McDaniel did not measure the phase wires in his 

first measurements. Although Smith was not present when McDaniel 

made his first measurements, Smith testified that when McDaniel 

discussed the order and citation with him, the ground wire was the 

only wire discussed. He stated that the first time that McDaniel 

stated that a phase wire was found to be under 15 feet was at the 

hearing of this case. 

McDaniel testified that he used the term "high-voltage power 

line" to include the four wires, and did not base the order and 

citation on a finding that the ground wire was the only wire that 

was under 15 feet. 

The evidence shows a misunderstanding between the inspector 

and mine management as to the basis for the order and citation. 

The inspector made the measurements shown by his notes, and found 

a phase wire below 15 feet from- the earth. However, his order 

stated that the high-voltage line was from "8 1 6 11 to 15' off the 

ground." To him, the high-voltage line included all four wires, 

and he meant both the phase wires and the neutral wire in his order 

and citation. 

I find that the order and citation reasonably specify the 

condition found by the inspector. However, the order and citation 

would have been clearer had the inspector stated his measurements 

of the phase wires. 

Respondent contends that the facts in any event do not warrant 

109 
an imminent danger order and that the citation should be reduced to 

an allegation of a non-significant and substantial violation. 

The Commission has held that a violation is "significant and 

substantial" if there is "a reasonable likelihood that the hazard 

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

serious nature." U.S. Steel Mining Co., Inc., 1 FMSHRC 327, 328 

(1985); Cement Division, National Gypsum Co., 3 FMSHRC 822,825 

(1981); Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984). This evaluation 

is made in terms of "continued normal mining operations." U. s. 

Steel Mining co., Inc., 6 FMSHRC 1573, 1574 (1984). The question 

of whether a particular violation is significant and substantial 

must be based on the particular facts surrounding the violation. 

Texasgulf, Inc., 10 FMSHRC 498 (1988); Youghiogheny & Ohio Coal 

Company, 9 FMSHRC 1007 (1987). 

Analysis of the statutory language and the Commission's 

decisions indicates that the test of an S&S violation is a 

practical and realistic question whether, assuming continued mining 

operations, the violation presents a substantial possibility of 

resulting in injury or disease, not a requirement that the 

Secretary of Labor prove that it is more probable than not that 

injury or disease will result. An illustration of this point is 

u. s. steel Mining Co. , Inc. , supra, in which the Commission 

affirmed an S&S finding by a Commission judge. The judge found 

that: 

* * * (A]n insulated bushing was not provided where the 

insulated wires entered the control box for a water pump. 

The insulation on the wires was not broken or damaged. 

The water pump's electrical system was protected by two 

fuses - one a 30 amp fuse on the cable, and one a 10-30 

amp control fuse inside the box. When it is operating, 

the pump vibrates, and the vibration could cause a cut in 

the insulation of the wire in the absence of a bushing. 

This could result in the pump to become the ground and, 

if the circuit protection failed, anyone touching the 

pump could be shocked or electrocuted. * * * [5 FMSHRC at 

1791 (1983); emphasis added.] 

As found by the judge, injury from the missing-bushing 

violation could result if the insulation wore through to metal and 

the circuit protecti.on system failed to operate. However, one may 

observe that circuit protection devices are not presumed to be 

"reasonably likely" to fail unless they are found to be defective. 

There was no finding of defective fuses in the U.S. Steel case. 

The violation presented a substantial possibility of injury, not 

proof that injury was more probable than not. The effective 

meaning of the Commission's term "reasonably likely to occur" as 

applied in cases such as U.S. steel is to find an S&S violation if 

the violation presents a substantial and significant possibility of 

injury or disease, not a requirement that injury or disease is more 

110 
probable than not. This meaning harmonizes with the statute, which 

does not use the phrase "reasonably likely to occur" or "reasonable 

likelihood" in defining an S&S violation, but states that an S&S 

violation exists if the "violation is of such nature as could 

significantly and substantially contribute to the cause and effect 

of a coal or other mine safety or health hazard" (§ 104(d) (1) of 

the Act: emphasis added). In contrast, the statute defines an 

"imminent danger" as "any condition or practice ••• which could 

reasonably be expected · to cause death or serious physical harm 

before [it] can be abated" 1 and expressly classifies S&S 

violations as less than imminent dangers. 2 

Thus, an "imminent danger" is a graver safety hazard than an 

S&S violation. I find that the height and location of the wires 

found by the inspector presented a substantial possibility of 

resulting in serious injury, but did not show an "imminent danger. " 

The area was accessible to the public, and to the company's 

electrical examiners, but considering the lowest height of the 

phase wires at 9 1 6 11 , and the relative infrequency of persons being 

in the area, I find that the Secretary did not prove that it "could 

be reasonably expected" that the condition would "cause death or 

serious physical harm before [it coul~] be abated." 

Accordingly, the imminent danger order will be vacated, and 

the § 104(a) citation will be affirmed. 

Considering all the criteria for a civil penalty in § llO(i) 

of the Act, I find that a civil penalty of $300 is appropriate for 

the violation. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction in this proceeding. 

2 • The Secretary did not prove that an imminent danger 

existed as alleged in Order No. 3381336. 

3. Respondent violated 30 c. F .R. § 77. 807 as alleged in 

Citation No. 3381337. 

ORDER 

1. Order No. 3381336 is VACATED. 

2. Citation No. 3381337 is AFFIRMED. 

1 Section 3(j) of the 1969 Mine Act; unchanged by the Federal 

Mine Safety and Health Act of 1977. 

2 Section 104(d) (1) limits S&S violations to conditions that 

"do not cause imminent danger .••• " 

111 
3. Respondent shall pay a civil penalty of $300 within 30 

days of the date of this decision. 

~~ William Fauver 

Administrative Law Judge 

Distribution: 

Mary sue Taylor, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certified Mail) 

Mr. Paul G. Smith, S&H Mining, Inc., P. O. Box 480, Lake City, TN 

37769 (Certified Mail) 

/fas 

112 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR · 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

T & T FUELS INCORPORATED, 

Respondent 

January 8, 1992 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 92-168 

A. C. No. 46-03149-03567 

No. 2 Mine 

DECISION GRANTING AND DENYING IN PART 

MOTION TO APPROVE SETTLEMENT 

Before: Judge Fauver 

This case is .a petition for assessment of civil penalties 

under§ 105(d) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § et ~ 

Petitioner has moved for approval of a settlement of one 

citation to reduce the alleged from "significant and substantial" 

tn non-S&S, to reduce the allegation of negligence from ordinary to 

low negligence, and to reduce the penalty to $63. Settlement of 

the remaining three citations is proposed without changing the 

original proposed penalties. 

The Commission has held that a violation is "significant and 

substantial" if there is "a reasonable likelihood that the hazard 

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

serious nature." U.S. Steel Mining Co., Inc., 7 FMSHRC 327, 328 

(1985); Cement Division, National Gypsum Co., 3 FMSHRC 822,825 

(1981); Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984). This evaluation 

is made in terms of "continued normal mining operations." U. s. 

Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (1984). The question 

of whether a particular violation is significant and substantial 

must be based on the particular facts surrounding the violation. 

Texasgulf, Inc., 10 FMSHRC 498 (1988); Youghiogheny & Ohio Coal 

Company, 9 FMSHRC 1007 (1987). 

Analysis of the statutory language and the Commission's 

decisions indicates that the test of an S&S violation is a 

practical and realistic question whether, assuming continued mining 

operations, the violation presents a substantial possibility of 

resulting in injury or disease, not a requirement that the 

Secretary of Labor prove that it is more probable than not that 

113 
injury or disease will result. An illustration of this point is 

u.s. Steel Mining Co., Inc., supra, in which the Commission 

affirmed an S&S finding by a Commission judge. The judge found 

that: 

* * * (A]n insulated bushing was not provided where the 

insulated wires entered the control box for a water pump. 

The insulation on the wires was not broken or damaged. 

The water pump's electrical system was protected by two 

fuses - one a 30 amp fuse on the cable, and one a 10-30 

amp control fuse inside the box. When it is operating, 

the pump vibrates, and the vibration could cause a cut in 

the insulation of the wire in the absence of a bushing. 

This could result in the pump to become the ground and, 

if the circuit protection failed, anyone touching the 

pump could be shocked or electrocuted. * * * (5 FMSHRC at 

1791 (1983); emphasis added.] 

As found by the judge, injury from the missing-bushing 

violation could result if the insulation wore through to metal and 

the circuit protection system failed to operate. However, one may 

observe that circuit protection devices are not presumed to be 

"reasonably likely" to fail unless they are found to be defective. 

There was no finding of defective fuses in the U.S. steel case. 

The violation presented a _substantial possibility of injury, not 

proof that injury was more probable than not. The effective 

meaning of the Commission's term "reasonably l_ikely to occur" as 

applied in cases such as U.S. Steel is to find an S&S violation if 

the violation presents a substantial and significant possibility of 

injury or disease, not a requirement that injury or disease is more 

probable than not. This meaning harmonizes with the statute, which 

does not use the phrase "reasonably likely to occur" or "reasonable 

likelihood" in defining an S&S violation, but states that an S&S 

violation exists if the "violation is of such nature as could 

significantly and substantially contribute to the cause and effect 

of a coal or other mine safety or health hazard" (§ 104(d) (1) of 

the Act; emphasis added). In contrast, the statute defines an 

"imminent danger" as "any condition or practice ..• which could 

reasonably be expected to cause death or serious physical harm 

before (it] can be abated" 1 and expressly classifies S&S 

violations as less than imminent dangers. 2 

1 Section 3(j) of the 1969 Mine Act, unchanged by the Federal 

Mine Safety and Health Act of 1977. 

2 Section 104(d) (1) limits S&S violations to conditions that 

"do not cause imminent danger. • • " 

114 
Proposed settlement 

citation 33151966 alleges that the panic bar for an emergency 

stop of an electric scoop, used at the face, was not properly 

maintained and produced friction and difficulty in using it. The 

inspector found that this condition would significantly and 

substantially contribute to the cause and effect of a coal mine 

safety hazard. The parties move to reduce t~e charge to a non-S&S 

violation on the ground that the scoop operator had reported the 

problem to the maintenance foreman before issuance of the citation. 

A violation is evaluated, for S&S or non-S&S purposes, on the 

assumption that· normal mining conditions would have continued 

without abatement of the violation. The settlement motion does not 

state that the friction and difficulty in using the panic bar did 

not present a substantial possibility of contributing to a serious 

injury. The proposed reduction to a non-S&S violation will 

therefore be denied. 

The proposal to reduce negligence to low negligence has a 

factual basis in the motion, and will be granted. 

The motion proposes settlement of the other three citations on 

the basis of their original allegations and the original proposed 

penalties. That part of the motion will be granted. 

Provisional Order 

If the parties agree to entry of the following provisional 

order,· the charges herein will be disposed of as indicated. In 

such case, the parties should file, within 10 days of this date, a 

joint motion for entry of the provisional order as a final order. 

If the parties do not agree to the provisional order, they may 

file a revised settlement motion. 

"PROVISIONAL ORDER 

"Upon motion of the parties, settlement of the charges in this 

case is approved as follows, without modification of the citations 

(except citation 3315196, which is redesignated as a low negligence 

violation) : 

Citation 

3315196 

3315195 

3315198 

3315199 

115 

Approved Civil Penalty 

$ 63 

136 

20 

20 

$239 
"Respondent shall pay the above civil penalties within 30 days 

of the date of this order." 

Distribution: 

fJ!dlc.~ ~CWVl-t_ William Fauver 

Administrative Law Judge 

Tina c. Mullins, Esq., Office of the Solicitor, u. s. Department of 

Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Om P. Magoon, Mining Engineer, T&T Fuels Inc., P. o. Box 206, 

Bruceton Mills, WV 26525 (Certified Mail) 

/fas 

116 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 101992 

OLD BEN COAL COMPANY, 

Contestant 

CONTEST PROCEEDINGS 

v. Docket No. LAKE 91-53-R 

Citation No. 3537139; 1/9/91 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. LAKE 91-54~R 

Order No. 3537140; 1/9/91 

Appearances: 

Before: 

Mine No. 26 

Mine ID 11-00590 

SUMMARY DECISIONS 

Timothy M. Biddle, Esq., Thomas c. Means, Esq., 

Crowell & Moring, Washington, D.C., for the 

Contestant; 

Edward H. Fitc;ti, Esq., Office of the Solicitor., 

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

the Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern Notices of Contest filed by the 

contestant (Old Ben) pursuant to section 105(d) of the Federal 

Mine Safety and Health Act of 1977, challenging the legality of a 

section 104(a) citation and a section 104(b) order issued on 

January 9, 1991, by MSHA Inspector Robert s. Stamm. The citation 

and order are as follows: 

Section 104(al non-"S&S" Citation No. 3537139, issued at 

8:03 a.m., cites an alleged violation of section 103(a) of the 

Act, and the cited condition or practice is stated as follows: 

While attempting to perform the on-going mandated 

quarterly Safety and Health inspection of the entire 

underground Mine 26, MSHA Inspector Robert Stamm was 

refused mantrip or other modes of transportation on the 

8:00 AM to 4:00 PM shift on January 9, 1991, on 

instructions from Robert Roper, Mine Superintendent. 

This precluded Mr. Stamm's ability to properly travel 

and inspect the mantrip and associated areas of the 

mine, and impeded the inspection. 

117 
The inspector fixed an abatement time of 8:18 a.m., 

January 9, 1991, and thereafter at 8:19 a.m. that same day he 

issued section 104(b) Order No. 3537140, citing an alleged 

violation of section 103(a) of the Act. The order reflects that 

"no area" of the mine was withdrawn, and the condition or 

practice cited is described as follows on the face of the order: 

Roger Roper, Mine Superintendent, failed to abate 

104(a) citation number 3537139. Roger Roper, Mine 

superintendent, denied MSHA Inspector Robert Stamm the 

right to ride the mantrip transportation, which impeded 

his efforts to perform mandated inspection activities 

of the mantrip and associated areas. 

The respondent (MSHA) filed timely answers to the contests 

and asserted that the citation and order were properly issued for 

violations of section 103(a) of the Act. Old Ben subsequently 

filed a Motion for Summary Decision pursuant to Commission 

Rule 64, 29 C.F.R. § 2700.64, accompanied by four (4) pre-trial 

depositions of the inspector, his supervisor, and MSHA's district 

and sub-district managers. MSHA filed a reply to Old Ben's 

motion, and Old Ben responded with a reply brief. 

After consideration of Old Ben's summary decision motion, 

and MSHA's reply; I denied the motion after concluding that 

several issues precluded summary decision, and the matter was 

scheduled for hearing on the merits in St. Louis, Missouri. Old 

Ben subsequently filed a motion seeking clarification of the 

denial, and requested that I identify the material facts which 

required an evidentiary hearing. I thereupon issued an order 

clarifying the issues for trial, and the parties subsequently 

requested a continuance of the hearing in order to file further 

stipulations which they believed would enable me to proceed with 

a summary decision of the matter without an evidentiary hearing. 

The continuance was granted and the parties filed their 

stipulations. 

Issues Presented 

The principal issue in these proceedings is whether Old Ben 

violated section 103(a) of the Act when it refused underground 

mine transportation to Inspector Stamm during his inspection of 

January 9, 1991. Stated more specifically, the issues are 

whether or not Inspector Stamm had a legal right pursuant to 

section 103(a) to transportation furnished by Old Ben to aid him 

in his inspection, and whether or not Old Ben's refusal to 

provide such transportation constituted a denial of Mr. Stamm's 

right of entry for purposes of conducting his inspection, and 

precluded or impeded his inspection. Additional issues raised by 

the parties are identified and disposed of in the course of my 

decisions. 

lla 
·l?tipulations 

The parties stipulated to the following: 

1. Old Ben's No. 26 Mine is subject to the Mine Act. 

2. The Administrative Law Judge has jurisdiction over this 

proceeding. 

3. citation No. 3537139 ("Citation ") and Order No. 3537140 

("Order") were properly served on Old Ben. 

4. The parties have agreed to put this case before the 

Administrative Law Judge for decision based on stipulated facts 

and the various briefs previously filed. 

5. Beginning on December 13, 1990 and consistently thereafter (untii abatement of the Order), Old Ben declined to furnish 

transportation around the Mine to Inspector Stamm, but no 

violation of the Act was alleged until the denial of 

transportation on January 9, 1991. 

6. Because elevator transportation between the surface and 

the underground workings at the bottom of the shaft was necessary 

for access into and out of the Mine, Old Ben provided it to 

Stamm. Old Ben did not provide transportation within the 

underground areas of the Mine because it believed that Stamm 

could perform his inspection on foot. 

7. Beginning on December 13, 1990 and continuing until 

January 15, 1991, Stamm continued to conduct his regular 4th 

quarterly inspection of the Mine on foot, accompanied also on 

foot by representatives of the miners and Old Ben. 

8. During this period of time, other MSHA inspectors who 

came to the Mine were provided with transportation around the 

Mine by Old Ben. 

9. The Mine is large, with several working faces during 

this time frame; the distances to be travelled from the shaft to 

the working faces varied from 2,400 feet (0.4 miles) for the 

closest face and up to 10,000 feet (2.1 miles) for the farthest. 

10. Most of the mine (~, the bleeder entries) can only be 

inspected on foot; all of the active workings could be reached 

within a 30 to 40 minute walk from the bottom of the shaft. 

11. During the time Stamm was denied transportation, 

transportation was otherwise available and could have been 

provided. 

119 
12. The Order was abated by Old Ben's agreement to transport 

Stamm to the location where he wished to commence his daily 

inspection and then to transport him back to the shaft at the end 

of that inspection, but not from place to place in the Mine 

during the· interval between those times. 

13. Stamm was not denied access to the mantrip for the 

purpose of inspecting it and that is not an issue in this 

proceeding. 

14~ It took Stamm three days longer to complete his 4th 

quarterly inspection (when transportation had been denied for 

over a month) than his 3rd quarterly inspection (when 

transportation had been provide4). This may largely be explained 

by the extra time it took Stamm to walk into and out of the Mine 

in the 4th quarter. 

15. Stamm issued more citations and orders during the 

subject 4th quarter than during the 3rd quarter, and 

substantially more than during any prior 4th quarter in recent 

years or in any quarter back through 1986. 

16. MSHA believes that the denial of transportation slows 

down inspectors and means that inspections take longer to 

complete. 

17. MSHA inspections may be conducted by multiple inspectors 

simultaneously. 

18. MSHA inspectors are free to begin their inspections at 

any time of the dayi anywhere in the Mine they choose, without 

prior notice. 

19. MSHA's Program Policy Manual provides that a denial of 

MSHA's statutory right of entry can occur indirectly, but 

"[t]here must be a clear indication of intent and proof of 

indirectly denying entry." Indirect denial of MSHA's right of 

entry occurs when there is a "[r]efusal to furnish available 

transportation on mine property when it is difficult or 

impossible to inspect on foot." 

20. Prior to December 13, 1990, Old Ben had complained to 

Stamm's supervisors that he was improperly conducting himself by 

issuing an excessive number of citations and orders, including 

many which they believed were legally defective, and by taking 

directions from the UMWA. Old Ben asserted that this was 

disrupting their operations because Stamm went to multiple areas 

of the Mine during each inspection day. MSHA acknowledges that 

Old Ben made these complaints but submits that MSHA inspectors 

are supposed to look into problems that they are told about by 

miners. 

120 
21. Of the approximately 285 citations and orders issued by 

Stamm during his 1990 3rd and 4th quarterly inspections, some 79 

were vacated or modified by MSHA as a result of the 30 C.F.R. 

Part 100 conference process or after Old Ben had contested them 

at the Commission. 

22. Although Old Ben contested additional citations and 

orders issued by Stamm, those cases were not set for hearing 

until many months later, offering no immediate relief from what 

Old Ben believed were improper and over-zealous enforcement 

actions. MSHA notes that Old Ben did not file motions to 

expedite these proceedings and Old Ben notes that it did not 

believe expedited hearings would have been granted since it had 

abated the alleged violations. 

23. The only two mines in MSHA's District 8 which were put 

on MSHA's Special Emphasis program (based on the number of 

violations issued) are the two which Stamm had been inspecting. 

MSHA questions the relevance of this fact in light of other 

possible explanations. 

24. Old Ben's Safety Director Dave Stritzel was an MSHA 

inspector for 11 years before he was hired by Old Ben in 1982. 

He served as a regular inspector from 1971-1976 and in 1976 was 

promoted to supervisory technical specialist (health). 

25. As an MSHA inspector, Stritzel believed that there was 

no legal requirement that mine operators had to furnish 

transportation all around their mines to MSHA inspectors. 

Stritzel believed, based upon his experience as an MSHA inspector 

and his examination of the Mine Act and regulations, that 

providing in-mine transportation to an MSHA inspector, like 

offering him coffee in the Mine office, was voluntary on a mine 

operator's part and that an operator could cease to offer this 

courtesy to an obnoxious inspector, to an inspector who abused 

the privilege, or to an inspector who for any reason was deemed 

no longer deserving of such favors. MSHA notes that none of its 

current employees who worked with Stritzel in the District can 

remember him voicing these beliefs while he was an inspector. 

MSHA further notes that there never has been any official MSHA 

policy or interpretation of the Mine Act consistent with those 

beliefs. Old Ben responds that many of Stritzel's colleagues 

with whom he would have discussed this at MSHA are no longer with 

the agency. 

26. Because of Stritzel's belief as stated in the foregoing 

paragraph, he believed that Old Ben was under no legal obligation 

to provide transportation to Stamm around the Mine, other than 

access into and out of the Mine by elevator, since he could 

perform his inspections on foot; accordingly, it was pursuant to 

Stritzel's direction that Old Ben refused to offer mantrip 

121 
transportation to Stamm on December 13, 1990 and thereafter, 

including January 9, 1991. 

27. When transportation is provided to an MSHA inspector 

other than Stamm, the usual procedure is that a company safety 

representative drives them to a location specified by the 

inspector; they park the .vehicle while the inspector examines 

conditions in that area; on occasion, the group may then drive 

the vehicle to other locations specified by the inspector. At 

the end of the inspection, the inspection party drives the 

vehicle back to the shaft• 

28. Old Ben believes that its motive for not offering 

transportation to Stamm is not relevant to this proceeding, any 

more than it is relevant to whether one may rightfully invoke 

one's 5th amendment right not to testify, that one is doing so 

because he does not like the police investigator; that is, since 

Old Ben believes that the Mine Act does not in the first place 

require a mine operator to transport MSHA inspectors around its 

mine, Old Ben believes that its decision to voluntarily offer 

such transportation to others but not to Stamm cannot be a 

violation. MSHA believes that under these facts transportation 

is required by the Mine Act and that Old Ben's motives are 

relevant to this proceeding. 

29. Old Ben clarifies that its statement on brief that "6nly 

in the limited range of circumstances where the denial of 

transportation effectively precludes MSHA's ability to exercise 

its right of entry could there be a section 103(a) violation in 

declining to chauffeur the inspector" refers to circumstances 

where operator-provided transportation is necessary to access all 

or part of a mine to inspect it, as with the elevator to the 

underground workings of Old Ben's No. 26 Mine. 

Deposition Testimony 

Old Ben took the depositions of Mr. Stamm and his MSHA 

superiors and filed them in support of its sunmiary decision 

motion and supporting arguments. MSHA also relies on these 

depositions. 

MSHA Inspector Robert Stamm, testified that his quarterly 

inspection of the mine began on October 29, 1990, and that prior 

to this time he had conducted another inspection beginning on or 

about July 6, 1990, and ending on approximately October 24, 1990. 

He was at the mine on a regular basis except for vacation 

periods, and this was the only mine he was inspecting during 

these time periods. He confirmed that on December 13, 1990, 

Mr. Bruce Harris, the mine safety manager, advised him that the 

company would no longer provide him with transportation whil~ he 

was conducting his regular inspections. Mr. Harris could not 

provide him with any reason for the denial of transportation. 

122 
Mr. Stamm informed his supervisor Steve Kattenbraker about the 

matter on December 13, 1990 (Tr. 6-10). 

Mr. Stamm stated that prior to December 13, 1990, he would 

ride in a diesel pickup truck driven by someone in the safety 

department to the area that he was inspecting. The truck would 

normally wait for him while he conducted his inspection, and it 

would then take him to the next area to continue his inspection. 

After Mr. Harris informed him that no transportation would be 

provided Mr. Stamm wrote up his notes and then proceeded to walk 

to the area to conduct his inspection, and he was accompanied by 

Mr. Harris and the miner's representative and they all walked 

(Tr. 10-12). Mr. Stamm confirmed that he subsequently prepared a me~orandum on December 20, 1990, at the request of subdistrict 

manager Sakovich, documenting Mr. Harris' refusal to provide him 

with transportation (Tr. 16). 

Mr. Stamm stated that except for December 19, 1990, when he 

rode a mantrip into the mine and walked, his inspections during 

the period December 13, 1990, and January 9, 1991, were all 

conducted on foot. He confirmed that in the past, when he 

conducted inspections, he usually rode into the area that he was 

to inspect, the vehicle would be parked, and he would conduct his 

inspections on foot. The only difference in this routine after 

December 13, 1990, was the fact that he had to walk to the 

locations where he was to conduct his inspections (Tr. 18). 

Mr. Stamm confirmed that after Dece.mber 20, 1990, and before 

arriving at the mine on January 9, 1991, he spoke with 

Mr. Sakovich about the transportation problem, and that on 

January 7, Mr. Sakovich "told me that when I went to the mine to 

try and ride in on a mantrip, see if they would provide 

transportation in a mantrip." Mr. Stamm confirmed that he 

followed these instructions and went to the mine on January 9, 

and traveled underground on the elevator. He proceeded to the 

empty mantrip and climbed in and sat down. Mr. Harris then 

informed him that he was not permitted to ride the mantrip. 

Mr. Stamm asked if he was being refused transportation, and 

Mr. Harris responded "yes" (Tr. 24). 

~r. Stamm stated that after getting out of the mantrip he 

issued a citation to Mr. Harris. He stated that he issued it 

"due to instructions received from district manager Mike 

Sakovich" on or about January 8, 1991, after he wrote his 

January 7, 1991, memorandum to Mr. Sakovich (Tr. 26). Mr. Stamm 

stated that Mr. Sakovich was acting on instructions, and he 

assumed "it was the headquarters in Arlington" because 

Mr. Sakovitch gave him typed suggested wording for the citation 

and order which he issued (Tr. 27-28). 

Mr. Stamm stated that after verbally issuing the citation at 

approximately 8:30 a.m., he went to the surface to write it out 

123 
and advised ·Mr. Harris that he had 15 minutes to obey the 

citation and that he would have to issue an order if 

transportation were not provided. Mr. Stamm then called 

Mr. Sakovich, issued the citation and order, and returned 

underground to continue his regular inspection by walking. He 

stated that he walked the third north belt conveyor entry and 

that it took him approximately 45 minutes or an hour to walk one 

way, and he ended up where the belt conveyor starts, and left the 

underground area between 1:00 p.m. and 1:30 p.m., and left the · mine at 2:25 p.m., and returned to his office (Tr. 33, 36). 

Mr. Stamm confirmed that the order was terminated on 

January 15, 1991, after Mr. Harris informed him that 

transportation would be provided for him and that a diesel truck 

would take the inspection party where he wanted to go (Tr. 37). 

Mr. Stamm explained that the phrase "or other modes of 

transportation" which appears in the citation refers to the 

diesel pickup truck which the mine Safety department normally 

drove for inspection purposes (Tr. 38). He confirmed that he did 

not ask Mr. Harris to provide him with some other mode of 

transportation other than the mantrip when he was refused a ride 

in that vehicle (Tr. 39). 

Mr. Stamm confirmed that Roger Roper is the mine 

superintendent, and that Mr. Harris told him that Mr. Roper had 

issued the instructions that no mode of transportation would be 

provided for him (Tr. 40). Mr. Stamm explained the cited 

conditions as follows at (Tr. 40-42): 

Q. Okay. Now, you -- say that it precluded your, um, 

the ability to properly travel and inspect the mantrip. 

Do you see those words in there? 

A. Yes. 

Q. All right. What do you mean by that, sir? 

A. Well, what we would normally do is if we want to 

travel the travel road into the unit, ride in the 

mantrip to see the condition of the traveled road, 

whether it be too rough or something that would affect 

the ability to operate that piece of equipment, and 

also while you were riding this mantrip to inspect it 

for steering, the brakes and things of this nature. 

Q. Did you tell Mr. Harris that you wanted to inspect 

the mantrip that morning? 

A. No. · 

124 
Q. Um, you say that it -- and I'm quoting here again, 

"ability to properly travel". Let me stop there. What 

did you mean by, "properly travel"? 

A. To ride that travel way. Like I say, to check for 

the condition of the travel way itself. 

Q. And you said that, um, mention of the word and 

associated areas of the mine. What do you mean by 

that? 

A. Well, the associated areas would be part of the 

travel road from the shaft to the working section. 

conclude by saying ability, 

I'm quoting, "and impeded 

it impede your 

Q. And then you go on and 

and impeded the inspection 

the inspection". And why did 

inspection? 

A. Because when you have to walk you can't get to the 

working section as quickly as you would like to get 

there to examine the things that we were required to 

examine. 

Q. And with respect to the wording, all of the wording 

under paragraph eight on the citation under condition 

or practice, um, you -- I think said earlier that you 

were sort of given a narrative to put in there, and 

that's what you put in there; is that right? 

A. Right. 

Q. So these are not your words, these are someone 

else's words essentially? 

A. Yes. 

Q. But you agree with them, do you, sir? 

A. Yes. 

Mr. Stamm stated that the 15 minute abatement time that he 

established for compliance with· the citation "was suggested" as 

enough time to allow him to ride the mantrip. He confirmed that 

the mantrip eventually filled up with people and he observed it 

leave while he was writing out his notes underground (Tr. 43). 

Mr. Stamm confirmed that he cited a violation of section 103(a) 

of the Act because of MSHA's policy interpretation of that 

section. He stated that the policy states "something to the 

effect that indirect denial would be if transportation was not 

provided and the inspection could not be performed, it would be 

125 
impossible to complete the inspection or impeded the progress, 

something to that effect" (Tr. 46). 

On cross-examination, Mr. Stamm confirmed that he is 

required to conduct mine inspections four times a year, and that 

the inspections "are always on a time schedule" (Tr. 54). He 

further explained as follows at (Tr. 56-57): 

Q. In terms of conducting a complete inspection, AAA 

inspection, as you've mentioned was the responsibility 

when you went underground on January 9, 1991. Were 

there reasons pertaining to your inspection 

responsibilities that you needed to get to any section 

in a relatively short amount of time the transportation 

that you were refused would have assisted you in doing 

so? 

A. On that date, um, I can't -- I can't answer that. 

I don't know if that date that would have altered my 

inspection because had I planned on going to this 

working section with transportation I would have done 

that. Since l was not provided, then I would have 

altered my inspection to go to another area of the coal 

mine with time when I'm working an eight hour day. 

Q. And how would that interfere with your ability to 

compete an AAA inspection in terms of the area you 

would want to go to? 

A. Well, it would either take a lot longer days than 

normal than what we normally would perform or possibly 

by walking every area in a coal mine you possibly 

wouldn't get the inspection done within the allowed 

time. 

Q. Okay. And, um -- and you were in terms of your 

transportation when you take this equipment that you 

normally took, was it part of your responsibilities 

with AAA to inspect the area as you entered into the 

area from this bottomless shaft to wherever you might 

be going? 

A. Yes, I'm inspecting throughout wherever I'm going. 

Q. Does that matter whether it's one day or the next 

day or whatever day it is? 

A. No, you're just always constantly inspecting and 

looking. 

Mr. Stamm stated that he knew of at least four inspectors 

who were provided transportation throughout the mine while he was 

126 
conducting his inspection (Tr. 57). He confirmed that prior to 

December 13, 1990, he was always provided underground 

transportation to conduct inspections and that transportation has 

always been provided him unless there was an equipment breakdown 

(Tr. 58) . 

On re-direct examination, Mr. Stamm stated that he has to 

complete his inspections -in a "timely manner" so that he can 

complete four a year. He further confirmed that it is an MSHA 

practice to perform four regular inspections a year on a calendar 

quarter basis, and there is nothing to preclude more than one 

inspector conducting a regular inspection (Tr. 59). 

Steven R. Kattenbraker, MSHA supervisory inspector, stated 

that the "transportation situation" concerning Mr. Stamm first 

came to his attention on December 13, 1990, after Mr. Stamm had 

issued an order shutting down the longwall. Mr. Stamm informed 

him that he was denied transportation and would have to walk back 

in to abate the order (Tr. 10). Mr. Kattenbraker believed that 

the refusal to provide transportation was the result of 

complaints by Old Ben that Mr. Stamm "was writing a lot of 

violations". He explained that he "conferenced" many of 

Mr. Stamm's violations and that the working relationship "was not 

the best" (Tr. 12). Mr. Kattenbraker confirmed that Mr. Stamm 

had been refused transportation from December 13, through the 

rest of the year, and he identified copies of Mr. Stamm's 

memorandum of December 20, 1990, and January 7, 1991, and also 

referred to additional memorandums by inspectors Michael Pace and 

Robert Cross, documenting the fact that they conducted section 

103(i) spot inspections-at the mine during the last half of 

December, 1990, and had been provided transportation (Tr. 16-18). 

Mr. Kattenbraker confirmed that he was present in the MSHA 

field office at the time the transportation situation involving 

Mr. Stamm was discussed by telephone by Mr. Sakovich and 

Mr. Childers with representatives of the MSHA solicitor's office 

in Arlington, Virginia (Tr. 23). The result of that conversation 

was that "we decided upon a course of action" and a citation and 

order were issued on January 9, 1991 (Tr. 24). Mr. Kattenbraker 

confirmed that Mr. Stamm was given suggested wording to include · 

in the citation and order which he issued (Tr. 24). 

Mr. Kattenbraker stated that from January 9, 1991, when the 

order was issued to January 15, 1991, when it was terminated, he 

"monitored" the situation. He confirmed that other than the 

denial of transportation, Mr. Stamm was not denied entry to the 

mine or barred from going anywhere in the mine, and that he 

conducted inspections on several days during this time period 

(Tr. 31). Mr. Kattenbraker confirmed that only one inspector was 

used on the inspection which began in October, 1990, and that he 

decides how many inspectors to use during any given inspection 

(Tr. 32) • 
Mr. Kattenbraker confirmed that he met with company safety 

officials Dave Stritzel and Bob McAtee on December 14, 1990, at 

Mr. Stritzel's request, and that Mr. Stritzel was concerned about 

Mr. Stamm. Mr. Kattenbraker explained this concern as follows at 

(Tr. 36): 

THE WITNESS: Specifically there were some statements 

made that Mr. Stamm was issuing violations that were 

not in their minds violations, that he was perhaps -- I've lost my train of thought here. He was perhaps 

more, I don't know what the word is, but he was too 

strong on some of the orders. They just had an order 

the night before, and they were very upset about the 

issuance of the order, did not feel it was warrantable, 

and made some general statements as to whatever takes 

place now, it can't replace the 12 hours of production, 

things like, that. 

Mr. Kattenbraker stated that during the meeting with 

Stritzel and McAtee "a statement was made that Mr. Stamm would 

not be provided transportation as of yesterday" (Tr. 35). 

Mr. Kattenbraker believed that the denial of transportation to 

Mr. Stamm was a "type of denial" of his responsibility to conduct 

an inspection (Tr. 42). Mr. Kattenbraker confirmed that he 

visited the mine a week after Christmas, 1990, accompanying 

another inspector on a spot inspection, and they were not denied 

transportation (Tr. 42-45). 

Mike Sakovich, MSHA sub-district manager, stated that he 

first became aware of a transportation problem on or about 

December 14, 1990, when Mr. Stamm informed him that he was told 

that he would not be provided transportation. Mr. Stamm did not 

further explain why he would be denied transportation, nor did he 

indicate his understanding as to the reasons why he would be 

denied transportation. 

Mr. Sakovich stated that he "did not do too much of 

anything" at the time he spoke with Mr• Stamm and simply told 

Mr. Stamm "to go to the mantrip, and if they refused 

transportation to just go about his business and do hi? job" 

(Tr. 6-7). Since Mr. Stamm had inspection duties which did not 

require him to have transportation, Mr. Sakovich could not recall 

his next contact with Mr. Stamm. However, on December 19, 1990, 

he had a conversation with Mr. McAtee, and he informed Mr. McAtee 

that "they were impeding Stamm's inspection by not permitting him 

to ride available transportation" (Tr. 10). Mr. Sakovich 

explained that the number 26 mine is a large mine and that if an 

inspector is not permitted to use available transportation, he 

would double or triple the time it takes to inspect the mine, 

there would be "a lot of lost motion", and he would be traveling 

the same area on foot day after day and would "have a hard time 

128 
covering the mine". Mr. Sakovich expressed his doubt that 

Mr. Stamm could inspect the mine once a quarter by walking 

(Tr. 10-11). 

Mr. Sakovich stated that on January 2, 1991 he discussed the 

transportation situation with MSHA field supervisors Kattenbraker 

and Wolf in Mr. stamm's presence, and that on January 3, 1991, he 

advised district manager Maurice Childers, for the first time, 

about the situation. In order to resolve the matter, 

Mr. Sakovich suggested to Mr. Childers that a citation "might or 

should be issued" (Tr. 12). Mr. Sakovich confirmed that his 

research reflected that section 103(a) of the Act did not 

specifically address "indirect denial", but the MSHA manual did, 

and that Mr. Childers agreed with his assessment of the matter 

(Tr. 14). 

Mr. Sakovich confirmed that he next discussed the matter of 

"indirect denial" with Mr. Childers on January 8, 1991, and that 

Mr. Larry Beeman, MSHA's Arlington, Virginia, office was also on 

the telephone line during the discussion which was initiated by 

Mr. Childers. Following this conversation, Mr. Sakovich was 

contacted by an unidentified attorney, and as a result of all of 

these discussions, he (Sakovich) instructed Mr. Stamm as to the 

procedure that he was.to follow, and this was "played out in what 

happened the next day with the citation to the letter" 

(Tr. 17). 

Mr. Sakovich confirmed that the narrative description of the 

cited "condition or practice" included in the citation had 

previously been faxed to his (Sakovich) office by the MSHA 

Arlington office where it had been prepared, and that Mr. Stamm 

simply copied it down on.the citation form (Tr. 17). 

Mr. Sakovich also confirmed that he had instructed Mr. Stamm to 

go to the mine and to go to the underground mantrip, and get in 

it. If "he was refused, he was to issue a citation giving them 

15 minutes to obey. If they took no action, he would come out on 

the surface and call me, and then I would instruct him to write 

the order, and that's exactly the procedure that was followed" 

(Tr. 18) . 

Mr. Sakovich identified Roger Roper as the mine 

superintendent and the "agent of the operator". Mr. Sakovich 

believed that Mr. Roper gave the instructions that Mr. Stamm 

would not be permitted to ride any transportation, but he did not 

personally discuss the matter with Mr. Roper (Tr. 20). 

Mr. Sakovich stated that he received a telephone call on 

January 9, 1991, from Old Ben official David Stritzel, and that 

Mr. Stritzel was "a little hostile and upset", and wanted to 

discuss Mr. Stamm (Tr. 19). Mr. Sakovich confirmed that he had 

previously met with Mr. Stritzel, Mr. McAtee, and Mr. Stamm's 

supervisor (Kattenbraker) on or about December 14, 1990, and that 

129 
Stritzel and McAtee "were complaining about Stamm's performance" 

(Tr. 24). He believed that the complaints concerned Mr. Stamm's 

talking to the United Mine Workers and that "he was writing 

violations that were not citations for things that were not 

violations, stuff of that nature" (Tr. 25). 

Maurice s. Childers, MSHA District No. 8 Manager, testified 

that he is the direct supervisor of Michael Sakovich and Steve 

Kattenbraker and indirectly supervises Inspector Stamm. He 

confirmed that he first became aware of a transportation problem 

concerning Mr. Stamm on January 3, 1991, when Mr. Sakovich 

advised him that Mr. Stamm was not permitted to ride a mantrip. 

Mr. Childers instructed Mr. Sakovich to tell Mr. Stamm "not to 

force himself on it, that he would proceed with his inspections~ 

(Tr. 6). Mr. Childers also confirmed that Mr. Stamm was not 

being denied entry to the mine and that it was only "a local 

transportation issue" (Tr. 6). 

Mr. Childers stated that Mr. Stamm followed his instructions 

of January 3, 1991, and that his conversation with Mr. Sakovich 

was brief on that day. Mr. Childers subsequently spoke with 

MSHA's attorneys, and he confirmed that the wording for the 

citation issued by Mr. Stamm on January 9, 1991, was prepared by 

the Solictor's office in Arlington, Virginia, and communicated to 

him. Mr. Childers agreed with the wording, and he believed that 

there was a violation of section 103(a) of the Act because "the 

company was impeding the regular inspection of the mines by 

refusing Mr. Stamm transportation, you know, underground to his 

wherever •.. whatever area he was going to" (Tr. 10). He confirmed 

that the "impeding the inspection" language appears in MSHA's 

program policy manual as part of the explanation of 

section 103(a). 

Mr. Childers confirmed that he instructed Mr. Sakovich to 

have the citation issued by Mr. Stamm, and that Mr. Stamm was to 

issue an order five minutes later if the operator did not comply 

(Tr. 11). He also confirmed that he sent a letter to Mr. Roper 

on January 9, 1991, and he confirmed that it was drafted by 

MSHA's Arlington office and faxed to him (Tr. 13). Mr. Childers 

stated that he subsequently received a telephone call from 

Mr. Markel Chamness, Old Ben's vice-president for underground 

operations, and Mr. Chamness advised him that he would provide 

transportation for Mr. Stamm (Tr. 14). 

Mr. Childers confirmed that MSHA's regulations do not state 

that transportation shall be provided for inspectors. However, 

he indicated that it has been an industry practice throughout 

Illinois to provide transportation for inspectors and that "it's 

never been a problem before". He also stated that there are 

times when an inspector must ride the mantrip, and when he is 

not, it has also been a practice to provide transportation for 

the inspector, the company official, and the walkaround (Tr. 15). 

130 
Mr. Childers agreed that if no transportation is available, the 

company need not purchase a special vehicle for the inspector, 

and if a piece of equipment is not available because it is broken 

down or operating elsewhere, the company is not required to make 

a special effort to supply transportation. He confirmed that an 

inspector is not authorized to displace regular workers who may 

need transportation, and that if an inspector finds that a 

mantrip has left or was filled with workers, the inspector would 

be expected to start walking to conduct his inspection and that 

"they do not sit and wait" {Tr. 17). 

Mr. Childers stated that the "local transportation" provided 

by the contestant is in a sense "a courtesy to the inspectors and 

helpful to the operator, too" {Tr. 18). He confirmed that an 

operator is not obliged to provide an inspector with lunch, 

safety equipment, or clothing {Tr. 18). 

on cross-examination, Mr. Childers stated that there are 

times when it is necessary for an inspector to get to a mine area 

in the least amount of time as possible, and as an example, he 

cited a situation where an inspector intends to go to an area two 

miles away with an inspection party, and that it would be 

beneficial for the inspector to complete his inspection as 

quickly as possible. He also indicated that an inspector must 

inspect an actual ongoing complete mining cycle to determine 

whether the equipment is being properly operated, whether there 

is adequate ventilation, and "things of that nature, that's part 

of his routine inspection" {Tr. 20). He believed that expedient 

transportation would assist the inspector in doing this. 

Mr. Childers stated that he was not aware that Mr. Stamm was 

denied transportation because of the unavailability of a mantrip, 

and as far as he knew transportation was available for inspectors 

to conduct their inspections. He confirmed that inspectors are 

required to conduct four underground inspections a year, and that 

mobile transportation would assist them in achieving that result. 

He believed that denying an inspector transportation would 

interfere with his accomplishing the required inspection because 

of the distances that he would be walking, and the inspection 

would take several weeks longer. Although he did not know the 

distances or all of the areas which would be travelled by the 

inspector, he stated that "in this mine it would hinder 

completing the required number of inspections" {Tr. 21-22). He 

also confirmed that an inspector is responsible for observing any 

imminent dangers or other safety concerns, and to insure that any 

cited violative conditions are corrected. The use of mobile 

transportation would help expedite his inspection in these 

situations {Tr. 23). 

On re-direct, Mr. Childers agreed that there are situations 

when an inspection may be expedited by using more inspectors, and 

that his testimony that an inspection would be delayed for 

131 
several weeks assumed that only one inspector was involved 

(Tr. 25). He confirmed that Mr. Roper's name is included in the 

citation and order because he is the mine superintendent and 

because "he is the top guy", and it was his understanding that 

Mr. Roper issued the instructions to refuse transportation for 

Mr. Stamm. Mr. Childers confirmed that if Mr. Roper had refused 

transportation to all inspectors, his views in this matter would 

still be the same (Tr. 26). 

Old Ben's Arguments 

Old Ben argues that the citation and order are invalid 

because section lOJ(a) of the Act does not require mine operators 

to furnish transportation to MSHA inspectors in order to 

facilitate their inspections •. Old Ben asserts that not only does 

the statute itself not impose such a duty on mine operators, but 

the legislative history also does not indicate any congressional 

intent that mine operators would be required to afford 

transportation to MSHA inspectors. Old Ben further states that 

there is no case law supporting MSHA's claim to a right of 

transportation, and even MSHA's own interpretive guidelines do 

not go that far. 

Old Ben maintains that nothing in section lOJ(a) of the Act 

in any way requires that transportation must be furnished to the 

Secretary or her authorized representative, and that a mine 

operator's duty is a passive one and limited to an obligati.on not 

to block or otherwise· interfere with the Secretary's "right of 

entry". Old Ben argues that this same scheme is echoed and 

reinforced in section 108(a) (1) of the Act where the Secretary 

has been provided with a remedy when an operator has denied the 

Secretary her rights under § 103. Again, the operator's 

obligation (the breach of which entitles the Secretary to 

injunctive relief) is passive: it is to guide the inspection, 

not to help the Secretary conduct it, not to speed it, ease it, 

or otherwise make it a more comfortable and relaxing experience. 

Section 108(a) (1) provides for judicial relief if, in pertinent 

part, the operator "interferes with, hinders or delays" the 

Secretary, "refuses to admit [her] to the ... mine," "refuses 

to permit the inspection," or "refuses to permit access to and 

copying of . . . record • . . " Just as the operator is not 

required to copy the records for the Secretary; just to "permit 

access and copying" of them, Old Ben concludes that it is not 

required to transport the Secretary around the mine, just to - permit her to inspect it without a warrant. 

Old Ben concludes that although Congress gave the Secretary 

a unique power to enter and inspect a mine without operator 

consent, and without a search warrant, it did not go as far as 

the Secretary now would like. Old Ben points out that while 

Congress gave the Secretary a right of entry, it did not also 

give her the novel and unheard of right to be transported, nor 

132 
did it give her the power of requiring the mine owner to convey 

her representatives as passengers in mine vehicles so that they 

"could be whisked around the mine to speed their inspection of 

it". Old Ben further points out, however, that Congress did not 

entirely ignore the issue of transportation in the mine when it 

required that mine operators provide transportation for injured 

persons in emergencies. Old Ben concludes that this shows that 

Congress knew how to grant a right of transportation when it 

intended to, by expressly providing one for injured persons. 

Old Ben maintains that if section 103(a) were construed not 

only to provide the Secretary with a right of access, but also to 

require mine operators .to transport her inspectors all around the 

mine, the statute would. have to be ruled unenforceably vague 

since it is silent as to creating any such operator duty and "a 

statute violates due process if it is so vague that a person of 

common intelligence cannot discern what conduct is prohibited, 

required, or tolerated", citing Mini Spas, Inc. v. South Salt 

Lake City Corp., 810 F.2d 939, 9439 {10th Cir. 1987), citing 

Connally v. General Contr. Co., 269 U.S. 385, 391 {1926). 

Accord, Phelps Dodge corp. v. FMSHRC, 681 F.2d 1189 {9th Cir. 

1982) . 

Old Ben asserts that its search of the legislative history 

of the Mine Act, the 1969 Coal Act, and the law in which MSHA's 

right to inspect mines originated in 1941, establish that a 

federal mine inspector's right of access has been an entitlement 

"to admission" to a mine to inspect it, and the mine operator 

has, since the inception of that right in 1941, been subject to 

punishment only if he "refuses to admit" the inspector, not if he 

refuses to transport him. Citing the legislative committee 

reports, Old Ben concludes that MSHA must be limited to a right 

of entry, and that there is no right to operator-furnished 

transportation. 

Old Ben further asserts that its review of the case law 

reveals no decisional authority to support the Secretary's claim 

that section 103{a) of the Act confers authority for inspectors 

to require that they be ferried about by mine operators ("Nor was 

there found any such authority for OSHA inspectors as they roam 

the rest of America's workplaces"). Old Ben cites United States 

Steel Corp., 6 FMSHRC 1423 (June 1984), in which the mine 

operator was cited under section 103{a) for denying an inspector 

access to the scene of an accident. In that case, the inspector, 

who was at the mine at the time of the accident, sought to 

accompany mine personnel on their way to examine the scene in a 

company vehicle but was not permitted to do so. The operator's 

personnel testified that they refused to allow the inspector to 

"accompany [them] to the accident because the inspector had no 

right to investigate an accident until [the operator's] personnel 

had first investigated • • • to determine whether a reportable 

133 
"accident" within the meaning of [Part 50] had occurred." 

4 FMSHRC at 620. 

. As a result of U.S. Steel's action, Old Ben points out that 

the inspector was unable to visit the accident scene, and that 

the judge "held that U.S. Steel violated section 103(a) of the 

Mine Act when [it] prevented [the MSHA inspector] from going to 

the scene of the (accident]." 6 FMSHRC at 1429. The Commission 

affirmed, noting not that the operator had denied the inspector 

transportation and that therefore § 103(a) was per~ violated, 

but that under the circumstances the operator "violated 

section 103(a) of the Act by preventing [the inspector] from 

inspecting the scene of the [accident]." Id. at 1431. Old Ben 

maintains that the denial of transportation was not itself deemed 

a violation of§ 103(a), but merely one fact bearing on whether 

the operator had prevented the inspector from inspecting the 

accident scene, which it clearly had under the circumstances, and 

which was a violation of§ 103(a). 

Old Ben argues that the facts in the instant case are 

different from those in U.S. Steel, and unlike that situation, 

there was no intent whatsoever (and no claim by MSHA of any 

intent) to prevent the inspector from inspecting anything, and no 

claim that the inspector did not have the right to inspect any 

incident or any location in the mine. Citing the text of the 

citation, which was drafted by MSHA attorneys in Arlington, and 

which alleges that the inspector was precluded from inspecting 

"the mantrip and associated areas of the mine", Old Ben concludes 

that this "is a pure red herring" in that it was neither the 

inspector's intent to inspect the mantrip or associated areas, 

nor did he request to do so (Citing the Inspector's deposition, 

Tr. 33, 41) • 

Old Ben states that there is nothing in the record that 

indicates that inspector Stamm was ever, or would be ever, denied 

the opportunity to inspect the mantrip or other vehicles if that 

were his expressed intent, and it points out that the section 

104(b) order was terminated when Mr. Stamm was given a ride in a 

diesel truck, not the mantrip. Moreover, when asked by his 

supervisor to recount the facts concerning the denial of 

transportation to the inspector from December 13, 1990, and 

thereafter, Mr. Stamm's only mention of any effect on his 

inspection was to complain that not having transportation 

required him to be "repeatedly walking the same areas to reach 

(his) destination" (Stamm deposition, exhibit 2), and no mention 

was made of the mantrip. 

Old Ben asserts that when denied transportation on 

December 13, 1990, and thereafter, Mr. Stamm continued with his 

inspections on foot, free to examine any portion of the mine, 

accompanied by the company safety representative and the miners' 

representative as usual. Indeed, he continued his daily 

134 
inspections without needing to be driven around the mine, without 

any claim by the inspector or his supervisor that Old Ben was 

violating section 103(a) of the Act, at least not until the 

District Manager called Arlington. 

Old Ben concedes that had its refusal to chauffeur Mr. Stamm 

around the mine actually precluded him from inspecting, then 

section 103{a) would arguably have been violated. It also agrees 

that where a denial of transportation is effectively a denial of 

the inspector's right of entry, then section 103(a) would 

arguably be violated. However, Old Ben maintains that merely 

because Mr. Stamm would have to walk and therefore might not be 

able to finish the inspection as quickly as he would have if Old 

Ben had conveyed him around the mine cannot be held to be a 

violation of MSHA's right under section 103{a). 

Old Ben emphasizes the fact that although MSHA's published 

policy manual interprets section 103{a) not only to prohibit 

direct denials of the right of ent_ry, but also "indirect 

denials", the policy makes no claim that there is an absolute 

right to transportation or that a refusal to provide 

transportation is itself an indirect denial in violation of 

section 103{a)~ Instead, the policy specifically identifies as a 

possible "indirect denial" an operator's "refusal to furnish 

available transportation on mine property when it is difficult or 

impossible to inspect on foot". Old Ben asserts that this was 

clearly not the case since Mr. Stamm continued his inspection on 

foot after the citation and order were issued. 

Old Ben asserts that the "walkaround" right of a miners' 

representative to accompany the MSHA inspector on his rounds is 

aptly named to reflect the longstanding, traditional approach to 

mine inspections. Old Ben recognizes that MSHA inspectors may 

prefer to "be chauffeured around", and that being driven around 

the mine may save MSHA time and thus inspection resources. It 

also recognizes the fact that denying transportation to an MSHA 

inspector may not be a very wise management practice and will 

likely not be widely replicated in the future. 

In conclusion, Old Ben maintains that although MSHA has a 

right of entry pursuant to the Act, it does not have a right of 

transportation under section 103(a). Old Ben believes that at 

most, only in a limited range of circumstances where the denial 

of transportation effectively precludes MSHA's ability to 

exercise its right of entry, could there be a section 103(a) 

violation in declining to chauffeur an inspector as he conducts 

his warrantless search of the mine. Old Ben further believes 

that this was not the case in the instant proceedings and that 

the citation and order should be vacated. 

135 
MSHA' s Arguments. 

MSHA asserts that the obvious and primary purpose for right 

of entry authority under section 103(a) of the Mine Act is to 

provide an unannounced opportunity for an inspector to enter upon 

or through a mine in order to adequately inspect it for health 

and safety hazards and/or violations. MSHA takes the position 

that if an inspector is merely permitted to walk into a large 

complex modern mine, such as Old Ben's Mine No. 26, while at the 

same time being denied readily available transportation to the 

working areas, the inspector is, in effect, denied entry to the 

mine area most crucial to a proper inspection. MSHA believes 

that if Inspector Stamm is not permitted to observe the actual · mining cycle, related ventilation, roof control, and general 

safety practices when and where. there is peak mining activity, 

then he is, in effect, denied entry to these areas at the most 

crucial time, and is unable to adequately inspect these important 

areas. MSHA concludes that this practice has the same effect as 

not permitting the inspector to enter upon or through the mine at 

all. 

MSHA maintains that in order to achieve the purpose of a 

mine inspection (the protection of miner safety and health), the 

authority of an inspector to enter "through" a mine must apply to 

those mine areas where and when mining extraction activity is 

occurring. By not permitting the inspector to use available 

mobile transportation to inspect the active mining extraction 

cycle areas of the mine when such activity is at its peak, is 

tantamount to denying him entry "through" the mine in a manner in 

which health and safety hazards, conditions, and violations may 

be readily and timely observed. 

MSHA asserts that mobile transportation is readily available 

at the No. 26 Mine, and that a specific vehicle is routinely and 

customarily made available to take inspectors wherever they 

direct. MSHA points out that prior to December 13, 1990, 

Inspector Stamm was permitted to be transported to any mine area 

he requested. Further, during the time period he was refused 

transportation while conducting a quarterly inspection of the 

mine, transportation was made available to other mine inspectors 

and these inspectors were transported from place to place as they 

requested in a company vehicle. Although Old Ben concedes its 

obligation to provide elevator transportation to the bottom of 

the shaft, MSHA maintains that it ignores the plain meaning of 

the word "through" when it denies readily available 

transportation from the elevator to the working areas. 

MSHA asserts that contrary to Old Ben's narrow 

interpretation, timeliness is an important aspect for adequate 

inspection under section 103(a) of the Mine Act, since it also 

bars advance notice of inspections for violations and imminent 

danger conditions or practices. MSHA concludes that by requiring 

136 
Inspector Stamm to walk in a large, complex mine where a 

substantial distance exists to the actual mining extraction 

areas, Old Ben has created an advance notice problem because by 

the time the inspector arrives at the mining cycle face areas, 

mining personnel could easily have been informed of the ensuing 

inspection. Regardless, denial of available mobile 

transportation hinders, delays and impedes the inspector's 

opportunity to inspect crucial areas of the mine, and in e.f f ect, 

denies entry into these areas. 

Citing the Commission's decision in United States steel 

corporation, 6 FMSHRC 1423 (June 1984), MSHA asserts that the 

Commission affirmed MSHA's position that denial of transportation. 

to an inspector, under appropriate circumstances, is a violation 

of section 103(a) of the Mine Act. MSHA points out that in the 

united States steel case, an inspector was not permitted access 

to an accident scene when a company official refused to permit 

the inspector to accompany him to the scene in a company vehicle 

even though the company had customarily provided MSHA personnel 

with a company vehicle driven by a company representative. MSHA 

further points out that the Commission clearly affirmed that an 

inspector, when performing regular inspections required under the 

Act, had the authority to inspect the mine in its entirety and 

that section 103(a) does not limit the areas he may inspect or 

the sequence he may employ to complete his inspection. 

MSHA asserts that by denying Inspector Stamm vehicle 

transportation routinely provided for other inspectors, Old Ben 

singled him out and denied him access "through" the mine. MSHA 

maintains that this denial of access must be viewed in the 

context of the availability of transportation and Old Ben's 

practice of providing such transportation to other inspectors and 

on other occasions. MSHA concludes that a denial of entry 

occurred when Inspector Stamm was denied transportation 

customarily available, thereby preventing him from inspecting 

important mining activities in the mine at the time sequence of 

his choosing and preventing him from fulfilling the inspection 

requirements under section 103(a) of the Mine Act. 

Findings and Conclusions 

Section 103(a) of the Act, 30 u.s.c. 813(a), provides in 

relevant part as follows: 

. . . • For the purpose of making any inspection or 

investigation under this Act, the Secretary • . • or 

any authorized representative of the Secretary . shall have a right of entry to, upon, or through any 

coal or other mine. 

137 
The judicial enforcement remedies available to the Secretary 

pursuant to section 108(a) (1) of the Act, .30 u.s.c. 818(a) (1), 

provide in relevant part as follows: 

The Secretary may institute a civil action for relief, 

including a permanent or temporary injunction, 

restraining order, or any other appropriate order in 

the district court of the United states . . • whenever 

such operator or his agent 

* 

* 

* * * * * 

(B) interferes with, hinders, or delays the 

Secretary or his authorized representative • 

• . . in carrying out the provisions of this 

Act, 

(C) refuses to permit the inspection of the 

coal or other mine, or the investigation of 

an accident or occupational disease occurring 

in, or connected with, such mine, 

* * * * * 

(F) refuses to permit access to, and copying 

of, such records as the Secretary •.. 

determines necessary in carrying out the 

provisions of this Act. 

* 

* 

MSHA's Program Policy Manual, Volume I, Section 103, July 1, 

1988, which discusses "Denials of Entry" policy, provides in. 

relevant part as follows: 

* * * * * * 

Denials of entry can be either: (a) direct denials 

involving confrontation; or (b) indirect denials 

involving interference, delay and/or harassment. 

Upon being denied right of entry, the inspector should 

first attempt to determine the reason for the denial. 

Was it direct or_ indirect? Specific actions must be 

taken for the different types of denials: 

* * * * * * 

2. Indirect: Indirect denials are those in 

which .an operator or his agent does not 

directly refuse right of entry, but takes 

roundabout action to prevent inspection of 

the mine by interference, delays. or 

harassment. There must be a clear indication 

138 

* 

* 
* 

of intent and proof of indirectly denying 

entry. For example, access to the mine is 

blocked by a locked gate or other means of 

blockage. However, a locked gate or other 

means of blockage, in and of itself, does not 

necessarily constitute a denial of entry. 

Mine management may have only closed the mine 

for the day and blocked the mine access road 

to prevent vandalism. However, when a locked 

gate is accompanied by continued production 

and deliberate avoidance of communication 

with the inspector, the mine operator is 

denying MSHA right of entry to the mine 

property. Other examples are listed below. 

The list is not meant to be all-inclusive, 

and reference is made only to some of the 

situations which may constitute an indirect 

denial. 

a. Refusal to furnish available 

transportation on mine property 

when it is difficult or impossible 

to inspect on foot; (emphasis 

added). 

* * * * * * 

In this case the citation and order charge Old Ben with a 

violation of section 103(a) of the Act on January 9, 1991, for 

refusing the inspector transportation on the mantrip, or other 

modes of transportation, thereby allegedly impeding and 

precluding his ability to travel and inspect the mantrip and 

associated mine areas. The parties have stipulated that the 

inspector was not denied access to the mantrip for the purposes 

of inspecting it and that this is no longer an issue. 

Accordingly, that portion of the citation and order which allege 

that the denial of transportation precluded or impeded the 

inspector's efforts to inspect the mantrip IS VACATED. 

The parties have stipulated that elevator transportation 

between the surface and the underground workings at the bottom of 

the shaft was provided to Inspector Stamm out of recognition of 

the fact that such transportation was necessary for his access 

into and out of the mine. They also stipulated that the usual 

inspection procedure for an MSHA inspector and his party (union 

walkaround and company safety representative) other than Mr. 

Stamm calls for an Old Ben representative to drive the party to 

any location specified by the inspector and to park the vehicle 

while the inspector examines the conditions at that location. on 

occasion, the group may then drive the vehicle to other locations 

specified by the inspector, and at the end of the inspection, the 

inspection party drives the vehicle back to the shaft. 

139 
Old Ben takes the position that since the Act does not in 

the first place require it to transport MSHA inspectors around 

its mine, its motive for not offering transportation to Mr. Stamm 

is not relevant, and that its decision to voluntarily offer 

transportation to all other MSHA inspectors except Mr. Stamm 

cannot be viewed as a violation. In short, Old Ben believes that 

it may discriminate against any inspector for whatever reason, 

and in this case it seems obvious that Old Ben is not too 

enchanted with the manner in which Mr. Stamm conducts his 

inspections. Old Ben has complained to Mr. Stamm's superiors 

that he was improperly conducting himself by issuing an excessive 

number of citations and orders, that he was taking directions 

from the UMWA, that his inspections of multiple areas of the mine 

each inspection day was disrupting its operations, and that the 

only two mines in MSHA District 8 which were put on MSHA's 

"Special Emphasis Program" are the two inspected by Mr. Stamm. 

Old Ben has characterized Mr. Stamm's enforcement actions as 

"improper and over-zealous", and it believes that many of the 

citations and orders which he issued prior to December 13, 1990, 

the day the denial of transportation initially began, were 

legally defective. MSHA acknowledges that Old Ben has complained 

to Mr. stamm's superiors, and the parties have stipulated that 

some 79 of the 285 citations and orders issued by Mr. Stamm 

during the last half of 1990 were either vacated or modified by 

MSHA during the Part 100 conference process. Thus, while it 

would appear that Old Ben has availed itself of an opportunity to 

redress some of its complaints about Mr. Stamm, it obviously 

reacted rather strongly and directly when on December 13, 1990, 

it summarily discontinued its customary practice of providing 

transportation to Mr. Stamm and his inspection party, while 

continuing to provide it to other inspectors. 

I have reviewed the Commission's decision in the U.S. Steel, 

case, supra, and I agree with Old Ben's position that the 

principal issue in that case was whether or not the cited mine 

operator prevented the inspector from going to the scene of an 

accident, and not whether or not section 103(a) of the Act 

directly required the operator to furnish transportation to the 

inspector to go to the accident scene. 

In Climax Molybdenum Company, 2 FMSHRC 542 (February 1980), 

I affirmed a citation issued to a mine operator for a violation 

of section 103(a) of the Act because of the operator's refusal to 

allow an inspector to use a camera in the course of his 

inspection. MSHA argued that the use of a camera to preserve 

conditions observed by an inspector in the course of his 

inspection was a natural extension of his right of entry, and 

that an operator's refusal to allow an inspector to bring or use 

a camera in the mine hindered and impaired MSHA's ability to 

conduct the inspections authorized by section 103(a). 

140 
I concluded that the use of a camera as an inspection tool 

was an extension of the Secretary's right of entry and inspection 

authorized by section 103(a). 2 FMSHRC 571. However, I rejected 

MSHA's argument that the refusal to permit the use of cameras 

constituted harassment and intimidation of the inspector per se, 

and I ruled that absent any credible evidence of harassment, or 

the impeding of the inspection, the operator's refusal to allow 

the use of cameras did not warrant a substantial civil penalty 

assessment. 2 FMSHRC 572-573. 

I believe that it is clear from the legislative history of 

section 103(a) of the Act, and the case law, that Congress 

intended to confer on the Secretary broad inspection authority, 

including the right of mine entry by inspectors without advance 

notice and without the necessity of obtaining a warrant.· 

Although I find no inherent right to operator furnished 

transportation pursuant to section 103(a) of the Act, given the 

fact that the mining industry is a pervasively regulated industry 

that requires a broad and liberal construction and application of 

the inspection and enforcement provisions of the Act, I conclude 

and find -that an inspector has a qualified right, as a natural 

and reasonable extension of his right of entry through a mine 

pursuant to section 103 (a) , to use readily ava.ilable operator 

furnished transportation to facilitate his mine inspection. I 

further conclude and find that in a given set of circumstances, 

and on a case-by-case basis, denying an inspector routinely and 

customarily available transportation which does not unreasonably 

burden or disrupt mining operations, and which unduly delays or 

obstructs an inspection is contrary to the spirit and intent of 

section 103(a) of the Act and may constitute a violation of that 

section. 

I recognize the fact that section 108(a) of the Act 

prohibits a mine operator from interfering, hindering, or 

delaying the Secretary or her authorized representatives in 

carrying out the provisions of the Act, and provides for U.S. 

District Court injunctive remedial relief in such instances. 

However, given the great numbers of daily mine inspections, I 

find it unrealistic and unreasonable to expect the Secretary to 

inundate,the courts with injunction actions each time mine 

management decides to withhold a transportation "privilege or 

favor" from a mine inspector because of his perceived 

"overzealous" inspection and enforcement actions. 

Contrary to Old Ben's position in these proceedings, I 

conclude and find that safety director Stritzel's motives in 

denying Mr. Stamm available transportation, while at the same 

time making it routinely and customarily available to other MSHA 

inspectors, is relevant. Mr. Stritzel, who served as an MSHA 

inspector for 11 years prior to 1982, believes that Old Ben is 

under no legal requirement to furnish "voluntary and courtesy" 

transportation all around its mines to MSHA inspectors and that 

141 
such transportation may be denied for any reason, particularly in 

the case of "an obnoxious inspector ••• an inspector who abused 

the privilege, or to an inspector who for any reason was deemed 

no longer deserving of such favors". On the facts of this case, 

and although not stated directly, it seems rather obvious to me 

that Mr. Stritzel's view of Mr. Stamm is that he is an 

"obnoxious" inspector who has "abused the privilege" of company 

furnished transportation and is therefore no longer deserving of 

such a company bestowed favor. It appears to me that Mr. ·stamm 

has fallen out of favor with Old Ben's safety director because 

his inspections have resulted in an increased number of citations 

and orders, and have apparently resulted in at least two of Old 

Ben's mines being subjected to MSHA's Special Emphasis program. 

I am somewhat surprised by Old Ben's admissions and 

suggestions that its safety director may curry favor with MSHA 

inspectors by making available coffee and transportation as 

"favors" which may be withheld or granted by management on the 

basis of whether an inspector is "no longer deserving" of such 

"privileges o! favors". In my view, such a policy could subject 

inspectors to undue pressures, and influences, and possible 

harassment or intimidation, which may adversely impact on the 

effectiveness or integrity of their inspections. Further, in 

some instances, ·a practice of bestowing "favors" on inspectors 

may be illegal or contrary to government regulations. 

On the facts of this case, I find that the denial of 

transportation to Mr. Stamm, who had fallen out of favor with Old 

Ben's safety director, while at the same time making such 

transportation routinely· and customarily available to other MSHA 

inspectors, was a petty and unprofessional way of dealing with an 

inspector who had become persona non grata because of his 

purported "overzealous" enforcement of the Act and MSHA's 

regulatory safety and health standards. In these circumstances, 

and if it can be established by a preponderance of the credible 

evidence that the denial of transportation to Mr. Stamm 

obstructed or unduly delayed his inspection on January 9, 1991, 

as charged by MSHA in the contested citation and order, I would 

find a violation of section 103{a) of the Act. 

As correctly argued by Old Ben in its briefs, MSHA's policy 

manual interpretation of section 103{a) of the Act makes no claim 

that there is an absolute right to transportation or that a 

refusal to provide transportation is itself an indirect denial in 

violation of section 103(a). MSHA's policy statement specifically states that refusal to furnish available transportation 

when it is difficult or impossible to inspect on foot may 

constitute an indirect denial of entry to the mine for inspection 

purposes. Thus, in order to establish a violation of section 

103(a) pursuant to MSHA's policy interpretation, it must be shown 

that transportation was available, but denied to the inspector, 

142 
and that it was difficult or impossible for, the inspector to 

conduct his inspection on foot. 

The record in this case establishes that the narrative 

allegations in the citation and order that the denial of 

transportation to Mr. Stamm "precluded his ability to properly 

travel and inspect associated areas of the mine·and impeded his 

inspection" were drafted by the Arlington Solicitor's office and 

faxed to the MSHA District office so that Mr. Stamm could 

incorporate that language in the citation and order which he was 

directed to issue on January 9, 1991, after he was refused 

transportation. Mr. Stamm conceded that·these· were not his 

words, but he agreed with the-statements. However, I find 

nothing in the citation or order, as written, which alleges or 

suggests that it was difficult or impossible for Mr. Stamm to 

conduct or complete his inspection on .January 9, 1991. 

The record reflects that Mr. Stamm was initially denied 

transportation on December 13, 1990, and that with the exception 

of December 19, 1990, when he rode a mantrip into the mine and 

walked, all of Mr. Stamm's inspections from December 19, 1990, to 

January 9, 1991, were conducted on foot. Mr. Stamm testified 

that the only difference in his inspection routine after December 

13, 1990, was the fact that he had to walk to the locations where 

he was to conduct his inspections, whereas prior to December 13, 

he was transported to these locations. Aside from Mr. Stamm's 

conclusion that requiring him to walk "impeded" his inspection 

because he could not get to the working section as quickly as he 

would like, I find no evidence that it was difficult or 

impossible for him to conduct his inspections on foot during this 

time frame. Indeed, when specifically asked why it was necessary 

for him to timely reach the section on January 9, 1991, and 

whether or not the transportation which was ref.used would have 

assisted him in timely reaching the section, Mr. Stamm responded 

"I can't answer that. I don't know if that date that would have 

altered my inspection ••• ", and he explained that he would have 

gone to another area of the mine to continue his inspection 

within his eight hour day. Although Mr • .Stamm alluded to the 

"possibility" of not being able to complete a AAA inspection 

within the allowed time, he confirmed that once he entered the 

underground workings from the bottom of the shaft, he is 

"constantly inspecting and looking" wherever he travels, and that 

it does not matter whether this is done on any one particular day 

(Tr. 56-57) • 

Supervisory Inspector Kattenbraker'testified that Mr. Stamm 

was not denied entry to the mine, nor was he.barred from going 

anywhere in the mine to conduct his inspections. He confirmed 

that Mr. Stamm conducted inspections on several days during the 

period December 13, 1990, to January 9, 1991. Sub-district 

manager Sakovich testified that when Mr. Stamm was denied 

transportation from December 13, 1990, to December 19, 1990, he 

143 
instructed Mr. Stamm "to go about his business and do his job". 

Mr. Sakovich confirmed that during this time period, Mr. Stamm 

had inspection duties which did not require him to have 

transportation. · 

District manager Childers characterized the denial of 

transportation to Mr. Stamm as a "local transportation problem" 

and he did not believe that Mr. Stamm was denied entry to the 

mine. Mr. Childers testified that when he first learned of the 

problem on January 3, 1991, he instructed Mr. Sakovich to tell 

Mr. Stamm "not force himself on it and to proceed with his 

inspections". Mr. Childers confirmed that providing transportation to inspectors was a "courtesy" and an industry practice 

in Illinois and that there were no prior problems in this regard 

in his district. He also indicated that if transportation is 

unavailable because it is operating at another location, is down 

for maintenance, or is filled with company personnel, an 

inspector would be expected to walk to his place of inspection 

and should not "sit or wait". 

Mr. Sakovich and Mr. Childers were of the opinion that due 

to the size of the mine, the denial of transportation to 

Mr. Stamm "impeded" his inspections. Mr. Sakovich believed that 

the denial of transportation would "double or triple" Mr. stamm•s 

inspection time and he doubted that Mr. Stamm could inspect the 

mine once a quarter by walking. Mr. Childers was of the opinion 

that Mr. Stamm's inspections would take "several weeks longer" 

due to the denial of transportation. Mr. Childers believed that 

the language "impeding the inspection" is found in MSHA's section 

103(a) policy statements, and both he and Mr. Sakovich relied on 

the policy in support of their conclusions that Old Ben violated 

section 103(a) of the Act by denying transportation to Mr. Stamm. 

I have carefully reviewed MSHA's section 103(a) policy 

statements, and I find no "impeding the inspection" language. 

Although the language found at page 10, of the July 1, 1988, 

policy manual explains that "interference, delays, or harassment" 

to prevent an inspection may be considered an indirect denial of 

entry, the policy goes on to state that there must be a clear 

indication of intent and proof of indirectly denying entry. The 

only policy reference to a refusal to provide transportation is 

the qualified policy statement found in paragraph l(a) at page 

10, which indicates that refusal to furnish available 

transportation when it is difficult or impossible to inspect on 

foot may constitute an indirect denial of entry. 

I find no credible evidence to support any conclusion that 

it was difficult or impossible for Mr. Stamm to conduct his 

inspection on January 9, 1991, after he was denied 

transportation. I also find no evidentiary support for any 

conclusion that it was difficult or impossible for Mr. Stamm to 

conduct his inspections during the period December 13, 1990, to 

144 
January 9, 1991, or thereafter. Indeed, the.parties stipulated 

that most of the mine can only be inspected on foot, and that all 

of the active workings can be reached within a 30 to 40· minute 

walk from the shaft bottom. The parties further stipulated that 

Mr. Stamm continued to conduct his regular 4th quarterly 

inspection of the mine on foot from December 13, 1990, and 

continuing until January 15, 1991, (when the order was abated), 

and that it took him only three days longer to complete his 4th 

quarterly inspection when transportation had been denied for over 

a month than his 3rd quarterly inspection when transportation had 

been provided. 

Although the parties stipulated that the three day delay was 

largely attributable to the extra time it took Mr. Stamm to walk 

into and out of the mine in the 4th quarter, I take note of the 

fact that Mr. Stamm issued more citations and orders during· the 

4th quarter than during the 3rd quarter, and substantially more 

than during any prior 4th quarter in recent years or in any 

quarter back through 1986 (stipulation #15). Under these 

circumstances, I would venture a guess that Mr. Stamm spent more 

"inspection" time in the fourth quarter on the necessary 

"paperwork" incident to issuing citations and orders and 

documenting the cited conditions than he did during the 3rd 

quarter. 

I take further note of the fact that Inspector Stamm began 

his fourth quarterly inspection on October 29, 1990, one month· 

after the start of the fourth calendar quarter and during the 

time when he was provided with transportation. I also note that 

on January 9, 1991, after issuing the citation and order, 

Mr. Stamm continued his inspection by walking, left the 

underground area sometime between 1:00 p.m. and 1:30 p.m., and 

left the mine at 2:25 p.m. to return to his office. Assuming 

that Mr. Stamm's normal work day ended at 5:00 p.m., and absent 

any explanation to the contrary, it would appear to me that 

Mr. Stamm either completed his inspection that day and left the 

mine, or left it early for other reasons. As for Mr. Stamm's 

beginning his fourth quarterly inspection well into the last 

quarter, I find no evidence that the delay was the result of any 

transporation difficulties, and absent any further explanation, I 

believe one may reasonably conclude that a fourth quarterly 

inspection which begins a month late will end late. 

I find no evidentiary support for Mr. Sakovich's belief that 

the denial of transportation doubled or tripled Mr. Stamm's 

inspection time, or Mr. Childer's belief that the inspection 

would take several weeks longer. I further find no evidentiary 

support for any conclusion that the denial of transportation to 

Mr. Stamm from December 13, 1990, to January 9, 1991, and 

thereafter to January 15, 1991, when the order was abated, 

violated MSHA's policy or unduly delayed or obstructed Mr. 

Stamm's inspections in violation of section 103(a) of the Act. 

145 
In short, I conclude and find that MSHA has failed to prove any 

violations by a preponderance of the evidence of record, and that 

the contested citation and.9°rder should be vacated. 

Old Ben has conceded the necessity for providing Mr. Stamm 

with elevator transportation from the mine surface to the 

underground workings, and while it abated the order by agreeing 

to transport him to the location where he wished to commence his 

daily inspection and back to the shaft at the end of that 

inspection, it did not agree to transport him from place to place 

in the mine during the interval between those times, and did not 

provide him with transportation within the underground mine 

because it believed that he could perform his inspection on foot. 

It is not clear whether Old Ben's agreement to provide Mr. Stamm 

with transportation from the elevator shaft bottom to the initial 

point of his inspection and then back to the shaft when he has 

finished his inspection was limited to the abatement of the 

order, or whether Old Ben will in the future continue to 

accommodate the inspector in this manner. 

I find it rather unfortunate that Old Ben's safety director, 

a former MSHA inspector himself, and the incumbent MSHA mine 

inspector have become adversaries in what should ordinarily be a 

mutually cooperative effort to insure safe and healthy working 

conditions in the mine. I take note of Old Ben's candid 

recognition of the fact that "antagonizing MSHA inspectors, with 

their broad discretion and substantial enforcement powers, 

including the power to issue ex parte closure orders, is likely 

ill-advised" (fn. 8, Old Ben's Motion for Summary Decision). It 

is hoped that both parties to this dispute can reach some 

accommodation and mutual understanding so as preclude any further 

escalation of the obvious breakdown in the working relationship 

between the inspector and Old Ben's safety director. 

ORDER 

In view of the foregoing findings and conclusions, IT IS 

ORDERED AS FOLLOWS: 

1. Section 104(a) Citation No~ 3537139, January 9, 

1991, IS VACATED, and Old Ben's contest IS GRANTED. 

2. Section 104(b) Order No. 3537140, January 9, 1991, 

IS VACATED, and Old Ben's contest IS GRANTED. 

~~~ Administrative Law Judge 

146 
Distribution:-

Timothy M. Biddle, Esq., Thomas c. Means, Esq., Crowell & Moring, 

1001 Pennsylvania Avenue, N.W., Washington, DC 20004 

(Certified Mail) 

Edw,ard H. Fitch, Esq., Office of the Solicitor, U.S. Department 

of Labor 4015 Wilson Boulevard, Room 400, Arlington, VA 22203 

(Certified Mail) 

/ml 

147 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 101992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OLD BEN COAL COMPANY, 

Respondent . . 

Docket No. LAKE 91-725 

A.C. No. 11-00590-03846 

Mine No. 26 

DECISION APPROVING SETTLEMENT 

Appearances: Rafael Alvarez, Esq., U.S. Department of Labor, 

Office of the Solicitor, Chicago, Illinois, 

for Petitioner; 

Gregory S. Keltner, Esq., Old Ben Coal Company, 

Fairview Heights, Illinois, for Respondent. 

Before: Judge Weisberger 

It is ORDERED that this case be severed from Docket 

Nos. LAKE 91-416 and LAKE 91-720. This case is before me upon a 

petition for assessment of civil penalty under Section 105(d) of 

the Federal Mine Safety and Health Act of 1977 (the Act). On 

December 16, 1991, subsequent to a hearing on the merits on 

another matter, Petitioner made to approve settlement agreement 

and to dismiss the cases. A reduction in penalty from $500 to 

$250 is proposed. I have considered the representations and 

documentation submitted in these cases, and I conclude that the 

proffered settlement is appropriate under the criteria set forth 

in Section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that Respondent pay penalties of $250 within 30 

days of this order. 

k'we~ Administrative Law Judge 

148 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

HENRY GALVAN, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 15 1992 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. CENT 91-191-DM 

MSHA Case No. SC MD-9107 

NEW MEXICO POTASH CORPORATION, 

Respondent Hobbs Potash Facility 

ORDER OF DISMISSAL 

Before: Judge Melick 

Complainant, in essence, requests approval to withdraw his 

complaint in the captioned case. Under the c' cumstances herein, 

permission to withdraw is granted. 29 C.F.R.i§ 2700.11. This 

case is therefore dismissed. Th hearings p~ viously scheduled 

to commence on January 21, 92, are accordin ly cancelled. 

Distribution: I 

Gar 

Ad 

~I~ e Law Judge 

Mr. Henry Galvan, 1306~ West Sha~, Carlsbad, NM 88220 

(Certified Mail) 

Ira Bolnick, Esq., Fitzpatrick & Bolnick, 1101 Cardenas Drive, 

N.E., Suite 205, Albuquerque, NM 87110 (Certified Mail) 

Michael E. Dargel, Esq., McCormick, Forbes, Caraway and Tabor, 

Bujac Building, 112 North Canyon, P.O. Box 1718, Carlsbad, NM 

88221-1718 (Certified Mail) 

/fb 

149 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 15 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OLD BEN COAL COMPANY, 

Respondent 

' ~ . ,- . : ~ •"' 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ZEIGLER COAL COMPANY, 

Respondent 

: CIVIL PENALTY PROCEEDINGS 

. . 

Docket No. LAKE 91-721 

A.C. No. 11-00589-03791 

Docket No. LAKE 91-754 

: A.C. No. 11-00589-03797 . . 

: Docket No. LAKE 92-3 

A.C. No. 11-00589-03798 

. . No. 24 Mine 

. : · Docket .No •. LAKE -91-685 

A.C. No. 11-02392-03835 . . 

. • 

. . 

. . 

. . 

. . 

No. 25 Mine 

Docket No. LAKE 91-487 

A. C. No;' ~11-00590-03834 

: Docket NO.'' LAKE 91-686 

: A.C. No. 11-00590-03837 . . 

. . 

. . 

Docket No. LAKE 91-724 

A.C. No. 11-00590-03845 

: No. 26 Mine 

. . 

. . 

. . 

. . 

. . 

150 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 91-718 

A.C. No. 11-00586-03655 

Docket No. ·LAKE 91-748 

A.C. No. 11-00586-03656 

Docket No. LAKE 91-796 

A.C. No. 11-00586-03658 

Murdock Mine 

Docket No. LAKE 91-728 

A.C. No. 11-02408-03644 
Appearances: 

: Docket No. LAKE 91-729 

A.C. No. 11-02408-03645 

Docket No. LAKE 91-730 

: A.C. No. 11-02408-03646 . . 

: Docket No. LAKE 91-747 

A.C. No. 11-02408-03647 

: No. 11 Mine 

DECISION APPROVING SETTLEMENT 

Rafael Alvarez, Esq., U.S. Department of Labor, 

Office of the Solicitor, Chicago, Illinois, 

for Petitioner; 

Gregory s. Keltner, Esq., Old Ben Coal Company, 

Fairview Heights, Illinois, for Respondent. 

Before: Judge Weiclberger 

In order to expedite a decision on these cases, it is 

ORDERED that they be.severed from Docket No. LAKE 91-29 et al. 

·l'hese cases are before me upon petitions for assessment o·f 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). On December 16, 1991, subsequent 

to a hearing on the merits on another matter, Petitioner moved tb 

approve settlement agreement and to dismiss the cases. A 

reduction in penalties from $3,443 to $1,391 is proposed. I have 

considered the representations and documentation submitted .in 

these cases, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in Section llO(i) of the 

Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that Respondent pay penalties of $1,391 within 

30 days of this order. 

£ei~ Administrative Law Judge 

Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Gregory s. Keltner, Esq., Old Ben Coal Company, 50 Jerome Lane, 

Fairview Heights, IL 62208 (Certified Mail) 

nb 

151 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 151992 

MINUTEMEN COAL CO., INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MINUTEMEN COAL COMPANY, 

Respondent 

CONTEST PROCEEDING 

Docket No. VA 91-415-R 

Mine No. 4 44-04871 

CIVIL PENALTY PROCEEDING 

Docket No. VA 91-470 

A.C. No. 44-04871-03570D 

No. 4 Mine 

DECISION APPROVING SETTLEMENT 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On December 4, 1991, the Secretary of Labor (Secretary) and 

Minuteman Coal Co. Inc. (Minuteman) filed a Motion to Approve 

Settlement and to Withdraw Notice of Contest. The Secretary 

asserts that the violation alleged resulted from a deliberate act 

of tampering with dust filter media. Minutemen denies that it 

deliberately tampered with or altered any of the dust filter 

media. The violation was originally assessed at $1200. 

The motion states that the parties agree to settle the case 

by reducing the proposed penalty to $960 based on a dispute 

between the parties as to the degree and existence of negligence. 

I have considered the motion in the light of the criteria in 

section llO(i) of the Act, and conclude that it should be 

approved. 

Accordingly, IT IS ORDERED: 

1. The settlement reached between the parties is APPROVED. 

152 
2. Minuteman shall, within 30 days of the date of this 

order, pay the sum of $960 as civil penalties for the violation. 

alleged in the citation contested herein. 

3. The contest proceeding Docket No. VA 91-415-R is 

DISMISSED. 

Distribution: 

>:u~ ,.4/]vo~ mes A. Broderick 

Administrative Law Judge 

Douglas N. White, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Mark R. Graham, Esq., White, Elliott and Bundy, 601 State Street, 

Suite 600, Post Office Box 8400, Bristol, VA 24203 (Certified , 

Mail) 

/ml 

153 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 151992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SHENANDOAH COAL CO., INC., 

Respondent 

. . CIVIL PENALTY PROCEEDING 

Docket No. VA 91-471 

A.C. No. 44-05541-035360 

No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On December 4, 1991, the Secretary of Labor (Secretary) and 

Shenandoah Coal Co Inc. (Shenandoah) filed a'Motion to Approve 

Settlement in the above case. The docket involves six alleged 

violations of 30 C.F.R. § 71.209(b) in which the Secretary 

alleged that Respondent altered the weight of a respirable dust 

sample submitted by Respondent as part of its sampling 

requirements. The Secretary states that the violations resulted 

from a deliberate act; the operator denies that it deliberately 

tampered with or altered any of its dust filter media. 

The motion states that the parties agree to settle the case 

by reducing the proposed penalty for each violation from $1200 to 

$960 based on a dispute between the parties as to the degree and 

existence of negligence. 

I have considered the motion in the light of the criteria in 

section 110(i) of the Act, and conclude that it should be 

approved. 

Accordingly, IT IS ORDERED: 

1. The settlement agreement is APPROVED. 

2. Respondent shall within 30 days of the date of this 

order pay the sum of $5760 as civil penalties for the alleged 

violations. 

/J ' .., 

jt~-1:£5 ~e/~ /t James A. Broderick 

LI Administrative Law Judge 

154 
Distribution: 

Douglas N. White, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Mark R. Graham, Esq., Suite 600, Dominion Bank Bldg., P.O. 

Box 8400, 601 State St., Bristol, VA 24203-8400 (Certified 

Mail) 

/ml 

155 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ZEIGLER COAL COMPANY, 

Respondent 

JAN 171992 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 91-683 

A. C. No. 11-00612-03556 

Spartan Mine 

PARTIAL DECISION 

Appearances: Rafael Alvarez, Esq., U.S. Department of Labor, 

Office of the Solicitor, Chicago, Illinois, 

for Petitioner; 

Gregory s. Keltner, Esq., Zeigler Coal Company, 

Fairview Heights, Illinois, for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

Pursuant to a request by the parties, this case is severed 

from Docket No. LAKE 91-29 et al. 

In this civil penalty proceeding the Secretary (Petitioner) 

seeks civil penalties for alleged violations by Ziegler Coal 

Company, (Respondent) of various mandatory standards set forth in 

volume 30 of the.Code of Federal Regulations. Pursuant to notice 

the case was heard in st. Louis, Missouri on December 17, 1991. 

At the hearing Ronald Sara testified for Petitioner, and Byford 

Carl Reidelberger testified for Respondent. The parties waived 

the opportunity to submit post-hearing briefs. 

Citation No. 3847632 

I. 

The parties stipulated as to the following facts: 

On April 15, 1991, Inspector Ronald Zara (sic] of 

the Federal Mine Safety and Health Administration 

conducted an inspection at the 2nd main west off main 

south (unit 3). During the course of the inspection 

the inspector found that the tram pedal (deadman pedal) 

156 
of the joy continuous miner (serial no. JM 3729) was 

stuck in the tram position. The machine could be moved 

'without pushing the pedal and would continue to tram 

when the deadman pedal was released. The tram levers 

were operating properly and would stop the machine when 

released and the panic bar was operating properly and 

would de-energize the tram motors when activated. This 

machine comes from the manufacturer with the deadman 

pedal installed and was approved with it. Two persons 

were in the area. The inspector issued citation No. 

3847632 for an alleged violation of 30 C.F.R. 

75.1725(a). Respondent showed good faith in 

terminating the violation by having the switch cleaned 

and lubricated and restored in proper operating 

condition. (Joint Exhibit No. 1, paragraph 9) 

According to Sara the purpose of the deadman's pedal is to 

prevent inadvertent contact by the operator of the continuous 

miner. ("miner") with the tram levers which could cause the miner 

to unexpectedly move left or right. Sara explained that because 

the mine floor is muddy, the operator, upon entering the cab with 

mud on his shoes, could slip on the metal floor ·of the cab. Sara 

opined that should the operator thus stumble or fall, inadvertant 

contact with the levers could occur, especially considering the 

"close quarters" of interior of the cab of the continuous miner, 

which be also described as being "very tight" (Tr. 41,42). 

On cross-examination Sara conceded that simply touching the 

tram levers is not sufficient to move them, as there must be 

pressure applied to push or pull the levers to cause the miner to 

go forward or backward. Sara further indicated on crossexamination that when removing pressure on the deadman pedal, the 

miner cannot be trammed either forward or reverse, but it does 

hot become de-energized. Accordingly it is still possible to 

rotate the drum, and swing the tail of the miner. Both these 

actions have a potential of causing an injury. 

Byford Carl Reidelberger, the superintendent of the subject 

mine, testified that the continuous miner in question at times is 

operated from a remote position even while the operator is inside 

the cab, and as such, the deadman pedal is bypassed. He further 

testified that, originally, the purpose of the deadman pedal was 

to protect the operator of the miner from being injured as a 

consequence of losing consciousness and thus being unable to stop 

the movement of the miner. According to Reidelberger, before 

self-centering levers were required, if pressure was released 

from a tram lever upon the operator losing consciousness, the 

lever would not have returned to neutral and the miner would have 

continued to tram. 

Reidelberger indicated that, at present, the deadman pedal 

is no longer necessary as miners are equipped with panic bars and 

157 
self-centering levers. Activating the panic bar immediately 

stops the motion of the miner. In the same fashion, if pressure 

is released from a tram lever that was in a forward or reverse 

position, the lever automatically immediately returns to neutral 

and the motion of the miner immediately stops. Thus, in 

Reidelberger's opinion, the miner that was cited was not unsafe, 

even though the deadman pedal did not operate as designed. 

II. 

Section 75.1725 supra provides, in essence, that machinery 

and equipment " ... shall be maintained in safe operating condition 

and the machinery or equipment in unsafe condition shall be 

removed from service immediately." Webster's Third New 

International Dictionary, (19S6 edition) ("Webster's") defines 

"safe" as "2. Secure from threat of, danger, harm or loss:", 

Webster's defines "Secure" as "2 a: free from danger "Danger" is 

defined in Webster's as 11 3. liability to injury, pain, or loss: 

PERIL, RISK. . . . " 

Based on the testimony of Sara, I find that, because the 

deadman pedal was stuck, miners were exposed to the risk of 

injury from unexpected movement of the miner caused by 

inadvertent contact with the tram levers. In this connection, 

Sara explained that miner operators are now accustomed to 

stepping on the deadman pedal in .order to operate the tram 

levers, and that accordingly, if the deadman pedal is not 

depressed, it is expected that contact with the levers would not 

cause the miner to· tram. Hence, Sara opined that should the 

levers be inadvertently pushed at a time when the deadman pedal 

is stuck, the resulting movement of the miner would be 

unexpected, thus causing the risk of an injury either to the 

operator located in the cab, or to the assistant working 

alongside the miner. In this connection, Sara explained that the 

assistant works in a close, confined area, inasmuch as there is 

usually less than 5-feet clearance on each side of the miner. 

Thus, according to Sara, sudden movement by the miner, left or 

right, could result in a injury~ I accept Sara•i testimony in 

this regard as it was not rebutted or impeached. Hence, applying 

the common usage of the term "safe" as defined in Webster's infra 

I conclude that the miner in question was not in safe operating 

condition. Since it was in operation, I find that Respondent 

herein did violate Section 75.1725 supra. 

III. 

Petitioner did not adduce any evidence of negligence on the · 

part of Respondent in connection with the violation herein. 

Also, considering the statutory factors set forth in Section 

llO(i) of the Act as stipulated to by the parties, I conclude 

that a penalty of $20 is appropriate for this violation. 

158 
Citation No. 3847638 

At the hearing Petitioner moved to approve a settlement 

agreement with regard to citation No. 3847638 and indicated that 

Respondent agreed to pay the assessed violation of $20. I have 

considered the representations and documentation submitted on 

behalf of the motion, and I conclude that the settlement is 

appropriate. Hence, the Motion to Approve Settlement is granted. 

Citation No. 3847637 

At the hearing the parties moved that further proceedings 

concerning Citation No. 3847637 be stayed on the grounds that the 

identical issue involved in this citation is pending before 

another Commission judge who has already held a hearing on this 

issue. Accordingly it is ORDERED that further proceedings on 

Citation No. 3847637 be stayed pending a Decision by Judge 

Koutras in Docket No. LAKE 91-635. 

ORDER 

It is ORDERED that Respondent pay $40 as a civil penalty for 

the violations found herein. 

Distribution: 

~eisberger h~ 

Administrative Law Judge 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Gregory s. Keltner, Esq., Old Ben Coal Company, 50 Jerome Lane, 

Fairview Heights, IL 62208 (Certified Mail) 

nb 

159 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 1 71992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

ZEIGLER COAL COMPANY, 

Respondent 

Docket No. LAKE 92-15 

A. C. No. 11-00586-03659 

Murdock Mine 

DECISION APPROVING SETTLEMENT 

Appearances: Rafael Alvarez, Esq., U.S. Department of Labor, 

Office of the Solicitor, Chicago, Illinois, 

for Petitioner; 

Gregory s. Keltner, Esq., Zeigler Coal Company, 

Fairview Heights, Illinois, for Respondent. 

Before: Judge Weisberger 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). On December 16, 1991, subsequent 

to a hearing on the merits concerning another matter, Petitioner 

made a motion, on the record, to approve a settlement agreement 

and to dismiss the case. A reduction in penalty from $500 to 

$100 is proposed. I have considered the representations and 

documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the criteria set forth 

in Section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and it is ORDERED that Respondent pay a penalty of $100 within 30 

days of this order. 

l 

vram Weist> rger 

Administrative Law Judge 

160 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 1 71992 

SOUTHERN OHIO COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Respondent 

DECISION 

CONTEST PROCEEDINGS 

Docket No. WEVA 91-1766-R 

Citation No. 3105784; 

6/19/91 

Docket No. WEVA 91-1767-R 

Citation No. 3105785; 

6/19/91 

Docket No. WEVA 91-1768-R 

Order No. 3105797; 7/8/91 

Docket No. WEVA 91-1769-R 

Order No. 3105798; 7/8/91 

Docket No. WEVA 91-1771-R 

Order No. 3105788; 7/1/91 

Martinka No. 1 Mine 

Mine ID 46-03805 

Appearances: Rebecca J. Zuleski, Esq., Furbee, Amos, Webb & 

Critchfield, Morgantown, West Virginia, for the 

Contestant; 

Glenn M. Loos, Esq., Office of the Solicitor, 

u. s. Department of Labor, Arlington, Virginia, 

for the Respondent. 

Before: Judge Maurer 

At tlie hearing in Morgantown, West Virgin.ia, on August 7, 

1991, the parties jointly moved to settle these cases and three 

other as yet undocketed matters as a package deal. 

The Secretary proposes to vacate Citation No. 3105784 

because the evidence at trial would not support the fact of 

violation. More particularly, the Secretary concedes that the 

MSHA inspector who issued the citation failed to measure the gaps 

of the switch gear so that there is no accurate measurement of 

what the gaps were at the time the citation was issued. 

161 
The contestant, socco, wishes to withdraw its contest of 

Citation No. 3105785 contained in Docket No. WEVA 91-1767-R and 

accept whatever penalty is assessed. 

SOCCO also wishes to withdraw its contest in Docket No. 

WEVA 91-1768-R because the Secretary has agreed to delete the 

"unwarrantability" finding on that section 104(d) (2) Order, 

effectively transforming it into section 104(a) Citation 

No. 3105797 with "S&S" special findings. As modified, socco has 

agreed to accept the citation and pay the civil penalty when it 

is assessed. 

I have been holding the captioned cases up waiting for these 

assessments to be made by MSHA until now to no avail. Pursuant 

to a telephone conference call on January 16, 1992, the parties 

have agreed to handle any potential civil penalty problems 

related to these contest cases in the civil penalty docket when 

it is forthcoming, thereby facilitating the disposition of these 

contests at this time. 

The Secretary further proposes to vacate the two section 

104(b) Orders involved in this proceeding, Order Nos. 3105788 and 

3105798 and as part and parcel of this settlement, Citation 

No. 3105791 and Order Nos. 3105799 and 3310101, which are as yet 

undocketed. 

Another docket, Docket No. WEVA 91-1770-R, was originally 

heard at the same time, but has subsequently been severed and 

stayed, pending the outcome of a section lOl(c) Petition for 

Modification presently under consideration before the Department 

of Labor. 

The basic theme of the settlement package is that the 

parties have agreed to perform testing on the air gaps on the 

switch gear and dead blocks in the Martinka Mine to determine 

exactly what length gap is necessary to make the switch gears 

safe. Pending the outcome of that testing, SOCCO agrees to 

establish an interim air gap length between 1/2 and 1 1/2 inches. 

In the past, MSHA has provided the operator with differing 

requirements as to air gaps. With the full implementation of 

this settlement agreement, the technical problems of compliance 

should be resolved and the interests of mine safety advanced. 

I therefore conclude that the proffered settlement is 

appropriate under the Act and in furtherance of the public 

interest, and accordingly, will be approved, including the 

vacation of the undocketed items, although the actual orders with 

respect to the undocketed citation and orders will have to be 

def erred until such time as they are docketed and before me for 

disposition. 

162 
ORDER 

Based on the above abbreviated findings of fact and 

conclusions of law, IT IS ORDERED: 

1. Citation No. 3105785 IS AFFIRMED. 

2. Order No. 3105797 IS MODIFIED to a section 104(a) S&S 

citation and.AFFIRMED as such. 

3. Citation No. 3105784 IS VACATED. 

4. Order Nos. 3105788 and 3105798 

Judge 

Distribution: 

Rebecca Zuleski, Esq., Furbee, Amos, Webb & Critchfield, 

500 Hampton Center, Suite 4, Morgantown, WV 26505 (Certified 

Mail) 

Glenn M. Loos, Esq., Office of the Solicitor, U. s. Department of 

Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

dcp 

163 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 j_ 1992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

Docket No. LAKE 91-344 

A.C. No. 11-00585-03789 

Mine No. 10 

DECISION 

Appearances: Susan J. Bissegger, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, for 

the Petitioner; 

Before: 

David R. Joest, Esq., Midwest Division Counsel, 

Peabody Coal Company, Henderson, Kentucky, for the 

Respondent. 

Judge Melick 

This case is before me pursuant to section 105(d) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c~ § 801 

et seq., the "Act," to challenge one citation issued by the 

Secretary of Labor for a violation of the mandatory standard at 

30 C.F.R. § 75.1107-?(b). The general issue before me is whether 

the Peabody Coal Company (Peabody) violated the cited regulatory 

standard as alleged, and, if so, what is the appropriate civil 

penalty for such violation. 

The citation at bar, No. 3537743 alleges a "significant and 

substantial" violation of the cited mandatory standard and 

charges as follows: 

The water type fire suppression system for the 

No. 17 Joy Miner was not being maintained in a working 

condition in the sub-main north unit. When actuated 

from the tail valve it would not operate. 

The cited standard, 30 C.F.R. § 75.1107-7(b), provides as 

follows: 

Where water spray devices are used for inundating 

attended underground equipment the rate of flow shall 

be at least 0.18 gallon per minute per square foot over 

the top surface area of the equipment (excluding 

conveyors, cutters, and gathering heads), and the 

supply of water shall be adequate to provide the 

required flow of water for 10 minutes. 

164 
The facts are not in dispute. On April 18, 1989, the 

administrator for Coal Mine Safety and Health of the Federal Mine 

Safety and Health Administration (MSHA) issued program policy 

letter P89-V-ll which "describes acceptable compliance methods 

for fire suppression systems on remotely controlled mining 

equipment." The letter stressed the need for a means of 

activating fire suppression systems on mining equipment which 

would allow the system to be activated from under supported roof 

while the machine is mining in extended cuts under remote 

control, and described two acceptable methods of compliance. 

Following receipt of the program policy letter, Peabody 

submitted to MSHA a proposal dated May 5, 1989, for compliance at 

its Mine No. 10. The proposal stated that Peabody had installed 

"a system for manually actuating the fire suppression system on 

continuous miners while operating in the remote control mode," 

and described the system, which consisted of a valve near the end 

of the tail of each miner. By letter dated October 20, 1989, 

MSHA's District Manager informed Peabody that the May 5, 1989, 

proposal was acceptable. 

On January 23, 1991, MSHA inspector Edward J. Banovic 

conducted an inspection of Mine No. 10 and cited the Joy No. 17 

continuous miner because the tail valve would not activate the 

fire suppression system. The parties have stipulated that the 

tail valve had been damaged and rendered inoperable by a 

collision occurring toward the end of the evening shift on 

January 22, 1991. For the remainder of that shift, the No. 17 

miner was used only for 20 foot cuts although extended cuts were 

authorized in Mine No. lO's ventilation plan and there was 

nothing to prevent Peabody from taking extended cuts. The 

midnight shift on January 23, 1991, was a maintenance shift only, 

and the No. 17 miner was not used to mine coal on that shift. 

The citation was issued on the next production shift, the 

January 23, 1991, day shift. The No. 17 miner had not taken any 

cuts on that shift when the citation was issued. 

Inspector Banovic testified that in his experience, extended 

cuts are taken at Mine No. 10 about 75 percent of the time, and 

that the continuous miners are operated by remote control 85 

per~ent to 90 percent of the time. He stated that the remote 

control device was present in the section and that he "assumed" 

the No. 17 miner would take an extended cut. However, he did not 

see any extended cuts being taken with the No 17 miner on 

January 23, 1991, and no statements were made to him by anyone 

present concerning any intention to take an extended cut. 

Additionally, the parties have stipulated that there is no 

evidence that any extended cuts were taken between the time the 

tail valve became inoperable and the time the citation was 

issued. 

165 
The parties have stated in the following stipulations their 

respective positions in this proceeding: 

24. The parties agree that the fire suppression system 

described in the citation is required to be operable 

while the miner is making extended cuts greater than 

20' under remote control and the other 2 manually 

operated fire suppression system could not be activated 

without going under unsupported roof. 

25. The Secretary contends that if a continuous miner 

is used to make extended cuts at any time, the tail 

fire suppression system is required to be maintained in 

operable condition at all times, whether or not the 

miner is actually making extended cuts at any 

particular time. 

26. Peabody contends that the tail fire suppression 

system at issue is required to be maintained in 

operable condition only when the continuous miner is 

actually being used to make extended cuts so that the 

other manually activated systems cannot be used without 

going under unsupported roof. Peabody contends that if 

the tail fire suppression system becomes inoperable, 

Peabody has the option of either immediately 

withdrawing the miner from service for repairs or of 

using the miner only to make conventional cuts (20' or 

less) until the tail fire suppression system can be 

repaired. 

In her posthearing brief, the Secretary places great 

emphasis in support of her position on the Commission decision in 

Solar Fuel Company, 3 FMSHRC 1384 (1981). In Solar Fuel, the 

Commission held that electric face equipment "stipulated to be in 

non-permissible condition and intended for use inby the last open 

mine crosscut" was in violation of 30 C.F.R. § 75.503, even 

though located outby the last open crosscut at the time of the 

inspection. The Commission stated that, under section 75.503, 

[E]quipment habitually used or intended for use inby 

must be maintained in permissible condition and may be 

cited regardless of whether it is located inby or outby 

when inspected. The emphasis is not on where equipment 

is located at the time of inspection, but simply 

whether it is equipment which is taken or used inby. 

Upon close scrutiny of the Solar Fuel decision however, I am 

satisfied that it is precisely limited to violations under the 

mandatory standard there at issue i.e., 30 C.F.R. § 75.503. 

Clearly that decision was premised-upon the grammatical 

interpretation of that specific standard and it is inapposite 

hereto. In any event it was stipulated in this case that the 

166 
cited No. 17 miner was not actually used in a violative manner. 

Moreover, I do not find that the Secretary would have met her 

burden of proving that the cited miner was intended to be used in 

a violative manner. Under the circumstances I cannot find that a 

violation of the standard at 30 C.F.R. § 75.1107-7(b) has 

occurred. 

ORDER 

Citation No. 3537743 is hereby 

Distribution: 

Gar 

Adm 

.. 

Law Judge 

Susan J. Bissegger, Esq., Office of the Solicitor, U.S. 

Department of Labor, 230 South Dearborn Street, 8th Floor, 

Chicago, IL 60604 (Certified Mail) 

David R. Joest, Esq., Midwest Division Counsel, Peabody Coal 

Company, 1951 Barrett Court, P.O. Box 1990, Henderson, KY 

42420-1990 (Certified Mail) 

/fb 

167 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 211992 

DAVID L. STRITZ.EL, 

Complainant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, and 

CHARLES RATH & MARK O. 

ESLINGER, 

Respondents 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 91-633-D 

VINC CD 91-05 

ORDER LIFTING STAY AND GRANTING 

MOTION TO DISMISS 

This case was stayed pending the Court of Appeals decision in 

Waqner v. Secretary of Labor, No. 91-2025, 4th Circuit. On 

November 5, 1991, the Court issued its decision, affirming the 

Commission's decision of June 6, 1990. The Court and the 

Commission have held that MSHA and its employees acting within the 

scope of their statutory authority are not "persons" within the 

meaning of § 105{c) of the Federal Mine Safety and Health Act of 

19 7 7 , 3 O U. s . C. § 8O1 et ~ I find these rulings to be 

disposi ti ve of the issues raised in the Secretary's motion to 

dismiss and Complainant's response to the motion~ 

WHEREFORE IT IS ORDERED that: 

1. ·The STAY is lifted. 

2. The Secretary's motion to dismiss is GRANTED and this 

proceeding is DISMISSED. 

168 

) 

. '· . /""} (jj_~ -r ltAA y{/'--

William Fauver 

Administrative Law Judge 
Distribution: 

Gregory s. Keltner, Esq., Zeigler Coal Company, 50 Jerome Lane, 

Fairview Heights, IL 62208 (Certified Mail) 

Mr. David L. Stritzel, 500 North DuQuoin, Benton, IL 

(Certified Mail) 

62812 

Tana M. Adde, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

/fas 

169 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

JAN 211992 

CLYDE C. COLE, . . DISCRIMINATION PROCEEDING 

Complainant 

v. 

CANYON COUNTRY ENTERPRISES, 

d/b/a CURTIS SAND & GRAVEL, 

a Corporation, 

Respondent 

. . 

. . . 

Docket No. WEST 91-191-DM 

Soledad Canyon Mine 

DECISION 

Appearances: David P. Koppelman, Esq., International Union of 

Operating Engineers, Local 12, Pasadena, California, 

for Complainant; 

Ben W. Curtis, President, CURTIS SAND AND GRAVEL, 

Canyon Country, California, 

for Respondent. 

Before: Judge Lasher 

This proceeding arises under Section 105(c)(3) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~ (1982) 

(herein "the Act"). Complainant's initial complaint with the Labor 

Department's Mine Safety and Heal th Administration CMSHA) resulted 

in MSHA's issuance of a Section 105(c)(2) complaint in his behalf 

which was originally filed on April 9, 1990, in Docket No. WEST 

90-165-DM, and which was amended on June 18, 1990. On December 14, 

1990, MSHA and Respondent Curtis filed its "Stipulation for Dismissal" indicating, inter alia, that "Having undertaken and completed discovery, the Secretary and Curtis now agree that the matter should be dismissed with prejudice." By my Decision entered 

January 22, 1991, the proceeding initiated by MSHA in Docket No. 

WEST 90-165-DM was dismissed. After petition for Commission review 

was filed, the Commission on March 1, 1991, denied.Cole's petition, 

affirmed my decision, gave Cole 30 days to initiate a proceeding 

under Section 105 (c) C 3 >, and provided that "The record in the 

105(c)(2) proceeding case may be noticed judicially in any such new 

proceeding." 

The discrimination complaint by Cole individually was then 

filed in the instant docket on February 12, 1991, alleging that 

Respondent Curtis "discriminated against Clyde c. Cole when it 

terminated his employment on or about July 19, 1988." 

170 
ISSUES 

1. Whether the Complaint with MSHA (filed beyond the 60-

day period provided in Section 105(c) of the Act) was untimely; 

whether the determination of the Labor-Management Adjustment 

Board issued pursuant to the grievance procedures of the collective bargaining agreement between I.U.O.E. and the Rock Products 

and Ready-Mix Employers of Southern California is preclusive of 

the action; and assuming arguendo that both the Complaint and 

this action are viable, whether Complainant was discrimina tively 

discharged on July 19, 1988, for refusing to operate what he 

alleges to be an unsafe front-end loader (#5312). 

2. Respondent contends Complainant quit. Complainant 

contends he was discharged. Respondent contends Complainant did 

not communicate a safety complaint when he left employment on 

July 19, 1988. Two final questions arise: 

a. Whether Complainant was constructively discharged 

by being given a choice by his foreman of operating a loader 

which he reasonably believed was unsafe or of being sent home and 

being deemed·to have quit enployment. 

b. Whether reasonable basis existed for Complainant 

Cole's alleged safety concern and complaint about the loader on 

July 19, 1988. 

Timeliness of Filing Discrimination Complaint 

Respondent contends that Cole's discriminatory "discharge" 

complaint was untimely and should be dismissed since it was not 

filed until some four months after he left employment on July 19, 

1988. Timeliness questions are to be resolved on a case-by-case 

basis. J·oseph w. Herman v. Imco Services, 4 FMSHRC 2135 (December 1982). It appears that Mr. Cole actually filed two complaints with MSHA. 

Complainant Cole filed his first MSHA Complaint (Ex. C-8) on 

August 1, 1988, which alleged inter alia that he was assigned for 

work at Curtis on May 16, 1988, and that 

"I am currently in grievance procedures 

against Curtis Sand and Gravel because I refused to run an unsafe piece of equipment. 

The piece of a;iuipment I am ref erring to is a 

Cat 988, #5312. .These are the things that I 

feel are unsafe about this loader: 

171 
1. Center pins are completely worn out. 

2. The steering locks and will hardly turn 

f rorn right to left. 

3. Steering pins are worn out. 

4. Brake pressure is on the red, with very 

little braking power, like only one wheel 

has a brake. That could also be a part 

of steering problem. (The steering is a 

lot harder in tight places when loading 

trucks while using the brakes). 

5. No backup alann. 

6. No parking brake. 

This is not the only piece of equipment 

that I feel is unsafe. I also see some hazards 

in the plant area of the Long Plant. The surge 

pile escape tunnel. is crushed. The catwalks are 

loose and coming apart. There are no guards on 

tail pulleys. Not all but there are a few more 

than is safe. It only takes one to get a man 

killed. I have never seen a lockout.used there. 

It seens to be a general lack of concern for 

the working men and safety. Whatever we can. 

get away with seems to be the motto. 

I hope it isn't going to take someone to get 

hurt bad or even maybe kill·ed to get some things 

to change there. I certainly hope not. That's 

why I am writing this letter today. Thank you 

very much for your cooperation in this matter. 

It is concluded after careful scrutiny of the wording of 

this complaint and the record that Mr. Cole did not at this time 

complain to MSHA about his allegedly unlawful discharge. Thus, 

his August 1 complaint does not actually mention he was discharged, but does specifically mention that he was "currently in 

grievance procedures," listed what he felt was unsafe about 

Loader #5312, complains that other equipment was unsafe, and complains about other "hazards." MSHA apparently did not consider 

this to be a complaint of discriminatory discharge CT. 123) and I 

conclude properly so. 

172 
On or about August 10, 1988, MSHA commenced investigation of 

this first complaint, confined to the "safety" allegations therein 1 and on August 10, 1988, a "Notice of Negative Finding" (see 

Exs. R-2 and C-9) was issued indicating that the alleged hazards 

did not exist. 2 ' 

Mr. Cole's second complaint was filed on or about December 15, 1988, nearly five months after he left Curtis's employment. This complaint alleges: 

I, Clyde C. Cole, feel I have been discriminated 

against because I refused to run what I knew to 

be an unsafe front-end loader #5312. In violation of Article VI, Section 1, RSG contract. I 

want to be reinstated to my previous position 

with full back pay from July 19, 1988, to whenever I am reinstated, benefits and seniority. 

And due to mental anguish, disc_rimination and 

harassment over this wrongful termination and 

conspiracy to cover the wrongful termination, 

I am seeking restitution in the amount of 

$150, 000 over and above the previousty mentioned 

i terns. 

This document does comprise a complaint of unlawful discharge cognizable under the Act and the question of timely filing 

is analyzed with respect thereto. 

Section 105(c)(2) of the Mine Safety and Health Act provides 

that "[a] ny miner ••• who believes that he has been discharged, 

1 The allegedly hazardous conditions investigated were 

those mentioned in Mr. Cole's August 1, 1988, complaint, to wit, 

bad center pins, poor steering, poor brakes, no back alarm, and 

also poor condition of escapeway, lockouts not being used, tail 

pulleys not guarded, and loose handrails. 

2 Insofar as the alleged hazards pertaining to Loader 

#5312 are concerned, the investigation was not dispositive one 

way or the other whether the tail pin complaint made by Mr. Cole 

actually showed unsafe conditions. (Ex. c~21, p. 15). The deposition of the MSHA inspector, Bill Wilson, strongly indicates 

that there was no basis to Mr. Cole's safety complaints about 

Loader #5312, as well as the other items of his complaint (Ex. 

C-21, Deposition pp. 15, 16, .17, 18 and attached notes pertaining 

to Inspector Wilson's inspection). 

173 
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 [of Labor] 

alleg'ing such discrimination." 30 u.s.c. § 815(c)(2). (Emphasis 

added). 

Significantly, Respondent did not allege or establish any 

specific direct prejudice from the three-month-late filing of the 

complaint. Complainant testified that, after filing his "safety" 

complaint, he was never advised by MSHA that he should file a 

discrimination complaint CT. 79-80, 123) and that he had not held 

any union positions or filed MSHA complaints prior to July 1988. 

CT. 128-129). He indicated it was af.ter November 2, 1988, that 

he found out he had to file a discrimination complaint and that 

he thought everything "was taken care of" by his first "safety" 

complaint. CT. 123). 

While some general prejudice would ordinarily be inf erred 

from the passage of several months after the allegedly adverse 

action before a complaint is filed and a party is put on notice 

that it must def end a claim of discriminatory discharge, it is 

noted that here the Respondent, because of a grievance brought by 

Complainant, was brought into th~ process of defending itself 

from a similar charge (Ex. C-5, Grievance dated July 20, 1988) 

and thus cannot convincingly contend that it was deprived of an 

early opportunity of investigating the facts of the incident, or 

perpetuating testimony by taking statements from its witnesses, 

etc. Sometimes a delaying complainant can achieve overwhelming 

advantage springing from tardy filing. While Complainant's asserted justification for late filing was not convincing, nevertheless in view of the immediate bringing of the grievance and 

filing of the "safety" complaint, it cannot be said that the 

instant discrimination complaint was a completely stale claim 

from Respondent's standpoint. Nor can it be concluded that the 

Respondent mine operator actually demonstrated specific prejudice attributable to the delay, Secretary of Labor on behalf of 

Hale v. 4-A Coal Company, 8 FMSHRC 905 (June 1986). 

On the other hand, Cole's failure to file a discrimination 

complaint with MSHA nearly five months after the date his employment terminated and after Cl) he filed both a grievance under the 

labor contract and a safety complaint with MSHA and, (2) both 

complaints had been denied, constitutes the basis for inference 

174 
of some prejudice to his· employer. 3 Certainly, Respondent was 

not aware until December 15, 1988, that it had to defend a claim 

of the nature of a federal action under the Mine Act for discriminatory discharge with its complexity and impressive potential 

economic remedies available to a successful complainant. Having 

been the subject of a specific MSHA investigation for safety violations after Cole's complaint thereto was filed promptly after 

he left employraen t, ~espondent would have been entitled to be1 i eve that the MSHA processes were over and that further li tigation of the matter was not in prospect. More specifically, while 

it was on notice to defend the grievance Ca very informal process 

more specifically desribed subsequently herein) and the various 

MSHA safety matters raised by Mr. Cole, it was in no way on 

notice to prepare for and defend a Mine Act discriminatory discharge proceeding. I thus infer and find that on the unique 

circumstances of this case and the one-at-a-time manner in which 

Complainant proceeded in filing various actions that Respondent 

would have incurred general prejudice. 4 

3 The sequence of various pertinent dates in 1988 is as 

fallows: 

1. Cole hired: 5-16 

2. Cole quit: 7-19 

3. Grievance Filed: 7-20 

4. MSHA Safety Complaint Filed: 8-1 

5. MSHA Safety Complaint Denied (Negative Finding): 

8-10 

6. Cole's Grievance Denied: 11-2 

7. MSHA Discrimination Complaint Filed: 12-15 

4 Complainant's grievance was filed the day after he quit 

CI subsequently conclude he was not discriminatorily discharged) 

and reflects his allegation that he was wrongly discharged and 

his desire for reins ta tament. Yet his first complaint with MSHA-

-filed after his grievance--while mentioning that there was a 

grievance proceeding alleges only safety complaiqts. I find this 

inconsistent with a deliberate choice made at the time by Cole to 

proceed through the labor agreement's grievance procedure to redress any wrong about his employment status and to simultaneously 

proceed against his employer with the MSHA safety complaint. His 

testimony that he thought "everything was taken care of" by the 

safety complaint does not ring with credibility, but seems more 

to be calculated to skirt the ban of the 60-day filing limi ta ti on. 

It was only after the failure of these first two complaints that 

the discrimination complaint was forthcoming. 

175 
More particularly and decisively, it is found that this 

question is governed by the decision of the Federal Mine Safety 

and Health Review Commission in David Hollis v. Consolidation 

Coal Company, 6 FMSHRC 21, 25 (January 1984). 

The circumstances in Hollis, supra, are similar to those 

presented in this action. The miner in Hollis alleged that he 

was discharged on Septeinber 29, 1980, in retaliation for safety 

concerns expressed to both MSHA and his employer. Rather than 

immediately filing a complaint· under the Act, the miner, David 

Hollis pursued a grievance u.nder the collective bargaining agreement, filed a charge with the National Labor Relations Board, and 

initiated proceedings before the state human rights conunission. 

Not until seven months after his discharge, and before the resolution of his alternative actions, did Hollis file his MSHA complaint. Shortly thereafter, based on the 60-day statute of limitations, his employer moved to dismiss the action as untimely. 

During argument on the motion to dismiss, Hollis contended 

that he was unaware of his rights under the Act until March 1981, 

and that he filed his complaint within 60 days of discovering 

those rights. Since he allegedly was not aware of his rights 

before that time, Hollis argued that he justifiably failed to 

file his complaint in a timely manner. The Commission, however, 

rejected his assertion. Observing that he served his union as 

chairman of the safety committee, and that Hollis had filed a 

grievance through his union, a charge with the National Labor 

Relations Board, and a complaint with the West Virginia Human 

Rights Commission, the Commission concluded that Hollis knew of 

his rights, but chose to pursue alternate avenues of relief. It 

held that "a miner's late filing [will not be excused] where the 

miner has invoked the aid of 'other forums while knowingly 

sleeping on his rights under the Mine Act." (Emphasis added). 

Similarly, in Herman v. Imco Serv., supra, the miner alleged 

that he was terminated because of his numerous complaints about 

the safety of a suspended storage bin. Despite his numerous 

contacts with MSH..~ officials both shortly before and after his 

discharge, Herman delayed filing his complaint until 11 months 

after his termination. Gran ting his employer's motion to dfsmi ss, the Commission held that Herman's 

prolonged hesitation in filing a discrimination complaint cannot be attributed to his 

being mislead as to or a misunderstanding of 

his rights under the Act. Ra th er, the record 

176 
reveals that he had direct contact with MSHA 

officials during the period that the events 

now complained of occurred, as well as after 

his termination. Quite simply, he had abundant opportunity and the ability to go forward 

with his complaint in a more timely fashion, 

if he had then desired to do so. (Emphasis 

added) • 

The 60-day rule, as applied by the Commission in both Hollis 

and Herman, compels dismissal of Cole's complaint. T'nere is no 

dispute that, less than two weeks after resigning his employment, 

Cole coinplained to MSHA and filed a charge with tha.t agency alleging safety hazards on the replacement loader. Cole was in 

direct contact with MSFIA as early as August, was aware of his 

rights under the Act, and was also familiar with the procedures 

required to file an MSHA complaint. Like the miner in Herman, 

Cole's "prolonged hesitation in filing a complaint cannot be 

attributed to his being mislead as to or a misunderstanding of 

his rights under the Act." 

Moreover, like the miner in Hollis, Cole' pursued an alternate avenue of relief, a grievance under the Agreement, and not 

until he lost that claim did he file the subject complaint. As 

.the Commission made-clear in Hollis, an untimely filing will not 

be excused "where a miner has invoked the aid of other forums 

while knowingly sleeping on his rights under the Act." 

Accordingly, on this l::asis, Complainant's initial complaint 

with MSHA is found untimely and this proceeding is to be dismissed. Discussion of the issues of preclusion and the merits of 

the discriminatory discharge allegation follow. 

Respondent's Defenses--Res Judicata, Collateral Estoppel: Preclusion 

Although not repeated in its post-hearing brief, Respondent 

in its answer to the Complaint and during this proceeding has 

argued that the complaint is (a) barred by the doctrines of res 

judicata and collateral estoppel, and (b) that Complainant's exclusive remedy for any alleged discrimination is pursuant to the 

Labor Agreenent the grievance procedures of which Complainant 

pursued to their conclusion. 

177 
Precedents of the Federal Mine sa·fety and Health Review 

Conunission govern the issues raised by these def ens es and guidance therefrom and U.S. Court decisions are utilized in the following determination. First, a brief summary of the background 

pertaining to these issues is helpful. 

Complainant left employment on July 19, 1988. Grievance 

procedures provided i!J. Article XIV of the 1985-1989 Agreement 

between International Union of Operating Engineers, Local No. 12, 

A.F.L.-C.I.O. and Rock Products and Ready Mix Concrete Employers 

of Southern California 5 (Court Ex. 1) establish a Labor-Management Adjustment Board to issue decisions which "shall be final 

and binding on either or both parties." The objective of the 

Board, however, is "for the express purpose of interpreting and 

enforcing all the terms and conditions" contained in the Agree~ 

ment. The Grievance procedures also provide for Arbritration in 

the event the Board does not reach a decision (Article XIV, 

Section l(b). The Board did reach a decision and the matter thus 

never went to an arbitrator. 6 

Mr. Cole filed a Grievance form (Ex. C-5), and after being 

turned down at Steps 1 and 2 of the Grievance procedures 

(Sections 2(a) and Cb) of the Agreement) he proceeded to Step 3 

which is referral to the Labor Management Adjustment Board. 

The six-member Board (3 unio~.and 3 management) met on 

Novenber 2, 1988, at the union offices in Los Angeles, California, and heard and decided the cases of some five grievants 

including Complainant on that date. The provision of the Agreement shown by the Board's decision (Ex. R-1) to be the point of 

reference was Article VI, Section 1 which provides: 

5 Of which Respondent Curtis is a member. 

6 Even in arbritration, as the U.S. Supreme Court in 

Alexander v. Gardner-Denver Company, 94 s. Ct. 1011, 415 U.S. 36, 

39 L. Ed. 147 (1974) noted, " ••• the fact-finding process ••• 

usually is not equivalent to judicial fact-finding. The record 

of arbitration proceedings is not as complete; the usual rules of 

evidence do not apply; and rights and procedures common to civil 

trial, such as discovery, compulsory process, cross-examination, 

and testimony under oath, are often severely limited or unavailable." . Such procedures are generally available in the Mine Act 

proceedings before the Commission, however. 

178 
ARTICLE VI 

Work Performance 

Section 1. Discipline. The Employer is the 

judge as to the competency of any worker. All 

employees must perform their work to the satisfaction of the Employer, provided, however, 

that no employee shall be discharged without 

good cause or discriminated against because of 

his membership in the Union or Union activities. 

This provision framed the issue in the grievance process: 

·Whether Curtis violated Article VI, Section 1 of the Agreement by 

allegedly discharging an individual employee with out "good cause." 

See "Judgment on Stipulation for Entry of Judgment" entered by 

the Superior Court of the State of California for the County of 

Los Angeles on August 17, 1990. (Ex. R-5, par. 5). The parties 

to the Stipulation upon which the Judgment was entered were 

Curtis and the union. The Judgment confirmed in all respects the 

decision of the Labor Management Adjustment Board denying Cole's 

grievance. (Ex. R-5, pg. 6). 

It is clear that the Court's judgment was based on the stipulation for it to do so by Curtis and the union and was not based 

on judicial review of the matter. Cole, who brings this action 

as an individual complainant under the Act was not a party to the 

stipulation. 'rhe stipulated Jud~nent did not directly or indirectly determine his rights under the Act or attempt to resolve 

his rights other than under the Labor Agreement in question. The 

effect of the Judgment, as indicated in the last sentence thereof, merely confirmed "in all respects" the decision of the Labor 

Management Adjusbnent Board denying Mr. Cole's grievance. It was 

not a judgment by a court on the merits of the litigation. See 

Bradley v. Belva Coal Company, 4 FMSHRC 982, 986 (June 1982)-.-

Examination of the Board's decision then is in order to determine 

its adequacy in tenns of judicial fact-finding, procedural due 

process, and consideration and application of Mine Act discrimination formulae and concepts. The Board's decision provides: 

Dispute: 

Clyde Cole protests termination. 

Contract Reference: Article VI, Section 1 

179 
Company Position: 

The grievant is a loader operator and was hired 

May 23, 1988, at the Company's Soledad Canyon 

Plant. On July 19, 1988, the loader that the 

grievant normally operates broke down and he was 

assigned to operate a different loader. (Both 

loaders were of the same type and approximate 

age.) When he was told to operate the other 

loader, he refused alleging that the loader was 

unsafe. He stated that he would do other work 

and the Supervisor thereupon told him that that 

was the only work he had for him and further 

that if he elected not to do the work and left 

the Plant he would be considered a voluntary 

quit. One of the Compariy mechanics with approximately 15 years of employment stated that the 

loader was safe to operate. Further subsequen~ 

to the Step Two meeting on August 1, 1988, the 

grievant filed a charge with MSHA and as a result 

of that investigation the inspector found that 

the loader was indeed safe to operate. (On the 

notice the box saying "alleged hazard did not 

exist" was checked.) 

Union Position: 

The grievant admitted refusing to operate the 

loader but alleged he had been told to go home 

if he was not going to operate that loader. 

Although at the time he did not state why he 

believed the loader was unsafe, he said at the 

hearing that since the loader had to go on the 

highway he didn't believe it was safe because 

of the steering. 

Decision: 

Moved and seconded that based on the evidence 

presented in this case the claim of the Union 

be denied. 

Motion Carried. (Emphasis added). 

Analysis of this decision of the Board--actually only "minutes" of its proceeding--shows that the actual principles underlying the decision are not ascertainable. 'll1e findings of fact 

180 
are exceedingly limited. 7 It is concluded that the Board's 

fact-finding process was not equivalent to judicial fact-finding, 

and more particularly in any way comparable to that of the Commission. Certainly, the record of its proceedings, including 

notes thereof (Ex. C-6), is not as thorough or complete. Respondent has the burden of establishing the applicability of its 

defenses seeking to preclude litigation of the discrimination 

issues in this matter on the basis that such were litigated and 

adjudicated by a court or forum of competent jurisdiction on the 

merits in a prior proceeding, i.e., res judicata. On the basis 

of the record presented in this matter, such a determination can 

not be made, although it does clearly appear that the Mine law's 

discrimination formulae were not in issue, w~re not applied, and 

were not determinative. 8 Thus, it is concluded that this li tiga tion under the Mine Act is not precluded. Further, since it 

does not appear' that precise issues relevant under the Mine Act 

including some that were specifically raised in this proceeding 

{Such as whether Complainant quit voluntarily, was discharged, or 

was constructively discharged by being given the forced choice of 

{l) either working under unsafe conditions or (2) going home and 

being considered to have quit, were raised and discussed and 

determined in the Board's proceedings, Respondent is found not to 

have carried its burden inherent in its defense of issue preclusion, i.e., collateral estoppel. 

Accordingly, Respondent's defenses of res judicata and collateral estoppel are rejected. Bradley v. Belva Coal Company, 

supra. 

Nevertheless, as the Commission has held with respect to the 

decisions of arbitrators, although the Commision is not bound by 

the determination of Labor-Management Adjustment Board, within 

the boundaries of sound discretion some weight can be accorded to 

its specialized competence in labor-management relations matters. 

7 One of the Board's findings from its proceeding, that 

"Although at the time he {Cole) did not state why he believed the 

loader was unsafe, he said at the hearing that since the loader 

had to go on the highway he didn't believe it was safe because of 

the steering," is found significant and mentioned subsequently 

herein. 

8 There certainly appears to be good reason "to doubt the 

quality, extensiveness, or fairness of procedures followed" in 

the prior proceeding before the Labor-Management Adjustment Board 

insofar as the determination· of the "preclusion" questions are 

concerned. See Montana v. United States, 440 U.S. 147 {1979). 

181 
Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 

2786 (October ·1980); David Hollis v. Consolidation Coal Co., supra. 

Discrimination 

In order to establish a prima facie case o.E mine safety discrimination under Section 105(c) of the Act, a com;?laining miner 

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

engaged in protected activity, and (2) that the adverse action 

complained of was motivated in any part by th_at activity. Secretary on behalf of Pasula v. Consolidation Coal Co., supra, rev'd 

on other grounds sub norn., and Secretary on behalt of Robinette 

v. United Castle Coal Co., 3 FMSHRC 803, bl7-81~ (April 1981). 

't'he Commission has held that a miner's worK retusal is a 

protected activity under the Mine Act if the miner has a reasonable, good faith belief in a hazardous condition. Secretary on 

behalf of Pasula v. Consolidation Coal Co., supra, Consolidation 

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

behalf of Robinette v. United Castle Coal Co., supra. See also 

Miller v. FMSHRC, 687 F.2d 194 (7th Cir. 1982). 

Ul ti mate determination of the merits of the discrimination 

issue trirns on whether Complainant's refu~al to operate Loader 

#5312 was b3.sed on a reasonable belief that it was unsafe (and 

whether such was reasonably cornmunica ted to management> or 

\vl'iether it was due to some subjective reason or Complainant's 

ternperainent. 9 

The 33-year-old Complainant has equivalency of a high school 

education. He commenced employment w1 th Curtis on May 16, 198 8, 

and worked as a heavy e:.iuipment operator (loader operator) for 65 

days until his employment terminated on July 19, 1988. He regularly operated front~end Loader #5303, which was one of approximately seven such loaders in use. 

Complainant's account of pertinent events differs sharply 

with Respondent's. We start first with Mr. Cole's version. 

Complainant testified that in mid-June 1988 CT. 62), 

he operated Loader #5312--the one he subsequently refused to 

operate--for a period of five hours and that at that point he 

determined the brakes "were poor," the center pins "were shot," 

and that it would "jolt" left or right "whichever way it wanted 

9 See T. 102, 140-141, 148, 169-160. 

182 
to go. 11 ( T. 59). Since the center pins are what hold the machine 

together he said that if the machine "should come apart half way" 

there was a good chance of having both legs crushed and of death. 

(T. 60). After getting off the machine, he testified, he told 

his plant f orernan Juan Moran that the, loader was "flat unsafe" to 

run (T. 63) but he did not tell Moran what was unsafe about it. 

(T. 63-64). He also testified he told Mechanic Homer Pennington 

that the loader was unsafe. CT. 63). 

About one w~ek before July 19~ 1988, Cole again operated 

Loader #5312 for 15 minutes and he testified no safety repairs 

had been performed on it, i.e., to the brakes, steering, back-up 

alarm arid center pins. (T. 65). He decided at this time he 

would not run it if asked to do so again and he testified he 

asked Ho;ner Pennington for a red tag so he could keep it available if he was asked to run #5312 again. Pennington advised him 

the company did not have red tags. 

On July 19, according to Complainant, his regular machine 

#530 3 broke down and the crucial conversation with his f ore."Ilan 

Juan Moran was given by Mr. Cole as follows: 

Just shortly thereafter Mr. Moran came up 

and asked what the prqblein was with the machine 

(5303), and I told him that the tilt wouldn't 

work, the bucket wouldn't roll back, or it 

wouldn't dump. He asked me if I could make it 

up to the Soledad Plant with the machine, and 

I said yeah •••. 

* * * * * 

And so I had the Euclid drive out from underneath the bucket and I lowered it down and I 

took the machine up to the Soledad Plant. This 

is a narrow, two-lane highway, blacktop, open to 

civilian personnel. Up an incline to the Soledad 

Canyon Plant at which point I parked the machine 

and Juan (Moran) called for Homer Pennington to 

come up and take a look at it. Homer came up and 

climbed up on the machine and he moved the lever 

back and for th and tack and for th, and him and 

Mr. Moran had a conversation, and then Juan told 

me to go over on 5312, take 5312 down in ·the mud 

hole and run it, and I refused at that point to 

run the machine. 

* * * * * 

183 
Mr. Moran told me to run 5312; take' number 

5312 down to the mud hole and continue working. 

At that point I refused to operate machine number 

5312 and spelled out exactly what I felt was unsafe about the B:!Uipment, starting with number 

one, the center pins, the steering, the brakes, 

no backup alarm. Then he told me he didn't have 

anything else for me to do that day, if I wasn't 

going to run 5312, and he thought it was safe 

enough to run down in that mud hole, to go home. 

I asked him if he was firing me and he said, 

no. I says I'll go down to the Lang Station Plant. 

I said I will be more than happy to run a scraper; 

I said I will stay_here; I said I will shovel tail 

pulleys, I will go down to the Lang Station Plant 

and shovel the tail pulleys. CT. 68-69). 

(Emphasis added) • 

Be told me to go home. And I asked him if he 

was firing me and he said no. I says okay. And 

then got my lunch box of£ the machine and he said, 

if you leave, you quit. I said I thought you just 

said you weren't firing me? He says I am not, I 

am just sending you home. I said okay. So I got 

in my car and I left. CT. 70). 

The other party to the primary events of July 19, 1988, 

Respondent's plant foreman, Juan Moran, testified in direct 

contradiction to the main points of.Mr. Cole's presentation, 

i.e., as to whether Loader #5312 was unsafe, whether he. (Moran) 

sent Mr. Cole home, whether Mr. Cole quit, whether Mr. Cole said 

the loader was unsafe, and whether Mr. Cole specified the various 

ite.rns (brakes, steering, backup alarm, center pins) that he considered unsafe on the loader. 

Mr. Moran testified he has been an employee of Respondent 

Curtis for some 20 years and has been plant foreman since 1976. 

As plant foreman, he was at pertinent times, in charge of 

Curtis's two operations, Lang Station (which had approximately · 

100 employees in 1988) and Soledad Canyon which had approximately 

8 eillployees. CT. 56, 131). 

Mr. Moran testified that he had never heard of or had experience with a center pin breaking, that he had never had to refuse to operate equipment at Curtis in order to get it repaired, 

and that while the center pins on loader 5312 were loose they 

were not unsafe. CT. 132-133). 

184 
According to Mr. Moran, on the day that Mr. Cole quit 

employment, he then ran #5312 for three hours and two other 

employees, Efre1n Ramirez and Neal Wallens, also ran it without 

complaint. CT. 133-234). 10 

Portions of Mr. Moran's testimony--which I credit as being 

the more trustworthy and persuasive over Complainant's--concerning events and conversations on July 19 after Complainant's #5303 

loader broke do\'m with hydraulic punp failure follow: 

... T ... ike he described· before, I told him to 

let the Buc~id to pull for under the loader and 

I knev; that he can drive. it to the upper plant--

to the plant--and I told Homer we've got a proble.m with a loader, don't want to tilt. Bomer 

looked at it and says the pump went out. I said 

to him, how long will it take to fix it. He 

said approxirn...=i. tely about two days by the time I 

get parts and all that. I said.okay. 

I looked at Mr. Cole and I said, Cole, we've 

got 5312 over here which is generally our spare 

loader for a few hours or a day or two, will you 

get the loader and go down to the pond to continue working, we've got three other guys working over there and he said, no, I won't go on the 

loader. Homer Pennington asked him why. He said 

I just don't like it; I won't run it. And he proceeded to go back into the loader 5305 loader 

which he was running, picked up his lunch, came 

down and started walking away. I said, you mean 

you are quitting? He turned around and said to 

me, he said, no, are you going to fire me? I 

said I don't have no reason to fire you; all I 

am asking you is to continue working so we can 

keep doing l:.ailing of all the silt out of the 

pond. And as soon as your loader is ready, you 

will go back to your loader. 

He said, no, I won't do that. I don't like 

the loader. Homer said--in fact Homer Pennington 

said oh, you are one of those operators that 

10 I have considered this evidence as one of the factors 

leading to the conclusion tha.t Complainant's alleged safety 

concern was unreasonable. 

185 
likes to ride Cadillac like, not Chevrolet. I 

said what is the difference between operators? 

And he continued to walk away and my remark to 

him was if you walk away from the plant, that 

means you just quit. And he continued to just 

wa 1 k away • C T. 13 4-13 5 ) • 

* * * * * 

Q. s·o you went immediately to work loading trucks while someone 

went to get another operator to relieve you so you could 

continue with your duties? 

A. Exactly. 

Q. Did you feel at the time you got on that loader that is was 

unsafe? 

A. No. If I felt I would get hurt on the loader I wouldn't get 

in it, especially when we have to travel a short distance 

over the highway with a loader. 

Q. Prior to that date, do you recall Clyde Cole telling you 

and/or Homer in your presence about the center pins being 

bad to the point of this loader being unsafe? 

A. No, he never mentioned it to ·me anything about being unsafe. 

He run the particular loader, I believe, was twice, and a 

short period of time-five hours or four hours. Whenever he 

is loaded, he will go around and he will use that one and I 

think it happened twice in the short time that he was with 

us. He never got to run 12 on Soledad. 

Q. Did he ever request from you that the loader be red-tagged 

because it was unsafe? 

A. Never. 

Q. When he refused to run 5312 did you tell him? "Go home." 

A. No. 

Q. Did he volunteer to shovel on the conveyor belts and do 

other work in lieu of running a loader? 

A. No, he never asked for anything else. 

Q. So when he left, what did you assume his intentions were? 

A. He was quitting. CT. 136-137). 

186 
Mr. Moran contradicted Complainant and denied telling him on 

the following morning that he (Cole) had been replaced, pointing 

out that Mr. Cole was never revlaced. CT. 147-148). Mr. Moran 

ali:>o credibly testified that because of the way such heavy equipment is built it has a center pin and that "they wear a little 

they feel like they are going to fall apart, but that does not 

mean they are unsafe." (T. 150). It also appears that Curtis 

does not have the equipment to change such pins (Tr. 155, 158) 

which further supports Mr. Moran's testimony and deletes the 

viability of Complainant's position on this point. 11 

Mr. Moran's opinion that Loader #5312 was safe to operate 

was shored up to some extent by the fact that he drove it after 

Mr. Cole left on July 19, 1988, that two other enployees also 

drove it without complairit, and that no repairs were made on it. 

( T. 156-157). 

Complainant did not actually establish that Loader #5312 was 

unsafe due to defective center pins or the other problems complained of. Thus, in his deposition (Bx. C-21) Inspector Wilson 

testified that during the MSHA inspection following Cole's safety complaint that the backup alarm was wor]dng, that the brakes 

were not checked during the inspection, that the union representative, Mr. Pat Stubbins, felt there was nothing wrong with the 

loader, and that Complainant was a "bitcher." (Wilson deposition, pp. 15-17, 18). The other safety complaints made by 

Mr. Cole not related to the loader were found not to have any 

basis also. (Ex. C-21, p. 18). 

I conclude that the MSHA inspection following Complainant's 

safety complaints supports the testimony of Mr. Moran that the 

lo~der was not unsafe (see also T. 155-158), and that the center 

pins were not replaced also casts serious doubt on the reliability of Complainant's testimony generally. 12 

11 See also Statament (Declaration) of Homer Pennington, 

lead mechanic, attached to Respondent's Motion for Summary Decision dated September 5, 1991, indicating that the center pins 

were never replaced and remained on the loader until his retirement in October 1990. 

12 In summary, the record in its entirety indicates that 

foreman Moran, Master Mechal'lic Pennington, Union Representative 

Pat Stubbins, and MSHA Inspector Bill Wilson all concluded that 

there was no basis to Mr. Cole's safety complaints. Further, the 

187 
Based on· the foregoing findings, resolution of conflicts in 

testimony based on observation of the demeanor of witnesses and 

the harmonizing of testimony with the general record, it is 

concluded 

a. that on July 19, 1988, Loader #5312 was safe to operate; 

b. that Complainant refused to operate such without justifiable reason for doing so; 

c. that Complainant's alleged belief that the loader was 

unsafe, assuming arguendo that such ·was in good faith, 

was not reasonable and accordingly was not an activity 

protected under the Mine Act, Bush v. Union Carbide 

Company, 5 FMSHRC 993, 997 (June 1983); 

d. that in refusing to operate Loader #5312 Complainant 

did not communicate safety concerns to his foreman, 

Juan Moran; 13 

e. that the termination of Complainant's employment occurred as a result of his voluntarily quitting employment and not as a result of his being contructively dis-. 

charged by Mr. Moran by being given a choice between 

cont'd fn. 12 

Labor-Management Adjustment Board, after deliberation CT. 165-

166), denied Mr. Cole's grievance. I have considered this as one 

of the factors to be weighed in resolving the conflicting testimony of Moran and Cole in Moran's favor. In rejecting Mr. Cole's 

testimony I also have considered that the safety co•nplaints concerning other matters involving the #5312 loader did not prove 

out and that his explanation concerning the late filing of his 

MSH..l\ discrimination complaint, while tidy, was more convenient 

than logical and convincing. 

13 Where reasonably possible a miner refusing to work 

should ordinarily communicate, or attempt to communicate, to some 

representative of the operator his belief in the safety hazard at 

issue. At least one purpose of this rule is to weed out "work 

refusals infected by bad faith." Secretary on behalf of Dunmire 

and Estle v. Northern Coal Company, 4 FMSHRC 126 (1982). 

188 
operating an unsafe piece of equipment or being deemed 

to have quit anployment. 14 

ORDER 

Complainant's complaint of discriminatory discharge under 

the Mine Act is found (a) to be without merit, and (b) to have 

been untimely fii.ed, and on these two independent bases, this 

proceeding is DISMISSED. 

Distribution: 

;J//;;~d" d!. ~k.c-·fa -.. Michael A. Lasher, Jr. 

Administrative Law Judge 

Clyde c. Cole, 8237 Soledad Canyon Road, Acton, CA 93510 

(Certified Mail) 

David P. Koppelman, Esq., International Union of Operating Engineers, Local 12, 150 East Corson Street, Pasadena, CA 91103 

(Certified Mail) 

Mr. Ben W. Curtis, President, CURTIS SAND AND GRAVEL, P.O. Box 

1367, Canyon Country, California 9138_6 (Certified Mail) 

ek 

14 Secretary v. Metric Constructors, Inc., 6 FMSHRC 226 

(February 1984). 

189 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 31992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 91-93-M 

A.C. No. 09-00265-05511 

v. 

BROWN BROTHERS SAND COMPANY, 

Respondent 

Docket No. SE 91-663-M 

A.C. No. 09-00265-05512 

Appearances: 

Before: 

Docket No. SE 91-756-M 

A.C. No. 09-00265-05513 

Junction City Mine 

DECISIONS 

Michael K. Hagan, Esq., U.S. Department of Labor, 

Office of the Solicitor, Atlanta, Georgia, for the 

Petitioner; 

Carl Brown and Steve Brown, Brown Brothers Sand 

Company, Howard, Georgia, for the Respondent. 

Judge Koutras 

statement.of the Proceedings 

These proceedings concern proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

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

1977, 30 u.s.c. 820(a), seeking civil penalty assessments for 

five (5) alleged violations of certain mandatory safety and 

health standards found in Part 56, Title 30, Code of Federal 

Regulations. Hearings were held in Macon, Georgia and the 

parties appeared and participated therein. The parties waived 

the filing of posthearing briefs but I have considered their oral 

arguments made in the course of the hearings in my adjudication 

of these matters. 

Issues 

The issues presented in these cases are (1) whether the 

cited conditions or practices constituted violations of the cited 

safety or health standards; (2) whether two of the alleged 

violations were Significant and Substantial (S&S); and (3) the 

appropria.te civil penalty assessments for the cited violations. 

190 
Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. 301, et ~ 

2. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

3. Mandatory Safety and Health Standards, Part 56, 

Title 30, Code of Federal Regulations. 

Stipulations 

The parties stipulated to the following: 

1. The respondent is subj_ect to the Act and to the 

Commission's jurisdiction. 

2. The respondent is a small sand mine operator 

employing nine to ten persons. 

3. The payment of the proposed civil penalty 

assessments will not adversely affect the respondent's 

ability to continue in business. 

4. Petitioner's exhibit P-7, a computer print-out 

reflecting the respondent's history of prior 

violations, accurately reflects two prior citations 

during the period March 26, 1989 through March 25, 

1991. 

5. All of the citations in these proceedings were 

timely abated by the respondent in good faith. 

Procedural Ruling 

Although Docket No. SE 91-756-M, dealing with the alleged 

noise violation (Citation No. 3605258) does not reflect that an 

answer was filed by the respondent, I take note of the fact that 

the answer filed by the respondent in Docket No. SE 91-663-M, 

makes reference to the noise violation. Under the circumstances, 

I have accepted this as an answer by the respondent in Docket 

No. SE 91-756-M. 

Discussion 

The contested violations in these proceedings are as 

follows: 

Docket No. SE 91-93-M 

Section 104(a) non-"S&S" Citation No. 3251229, September 24, 

1990, cites an alleged violation of 30 C.F.R. § 56.14107(a}, and 

191 
the condition or practice cited is described as follows: 

The V-belt drive for the pump, located near the shaker 

screen was not guarded to protect persons from 

contacting the moving belts. 

Docket SE 91-663-M 

Section 104(a) "S&S" Citation No~ 3605255, March 26, 1991, 

cites an alleged violation of 30 C.F.R. § 56.14103(b), and the 

cited condition states as follows: 

The operator's cab on the John Deere 644CB front end 

loader has a shattered windshield. 

Section 104(a) non-"S&S" Citation No. 3605256, March 26, 

1991, cites an alleged violation of 30 C.F.R. § 56~1410l(a) (2), 

and the cited condition is described as follows: 

The park brake on the John Deere 644 CB front-end 

loader will not hold the equipment on the grade it 

travels. 

Section 104(a) non-"S&S'' Citation No. 3605257, March 26, 

1991, cites an alleged violation of 30 C.F.R § 56.1410l(a) (2), 

and the cited condition is described as follows: 

The park brake on the John Deere 444 front end loader 

will not hold the equipment on the grade it travels. 

Docket No. SE 91-756-M 

Section 104(a) "S&S" Citation No. 3605258, March 26, 1991, 

cites an alleged violation of 30 C.F.R. § 56.5050, and the cited 

condition is described as follows: 

On day shift March 26, 1991, the dredge operator was 

exposed to mixed noise levels of the dredge (barge) and 

exceeded unity (100%) by 149.71 times, 149.71% as 

measured with a dosimeter. This is equivalent to an 8-

hour exposure to 93 dBA. Personal hearing protection 

was not being worn. Feasible engineering or 

administrative controls were not being used to 

eliminate the need for hearing protection. 

Petitioner's Testimony and Evidence 

Docket No. SE 91-93-M 

MSHA Inspector Kenneth Pruitt testified that he has served 

as an inspector for 16 years. He confirmed that he issued the 

citation on September 24, 1990, after finding that a V-belt drive 

192 
for a pump motor near the shaker screen was not guarded. He 

explained that during a previous inspection there was a cover 

over the pump and some maintenance work had been done. The 

respondent had cut an old tank in half and installed it over the 

pump and motor as a guard. However, there were two openings cut 

into the cover to provide access to this equipment. In the event 

someone were to go into the tank area, they would be exposed to 

the unguarded V-belt and pinch points and their hand or clothing 

could be caught in these pinch points. 

Mr. Pruitt stated that he considered it unlikely that an 

injury would result since the pump was located in. an isolated 

area where no one works on a regular basis. Accordingly, he 

considered the violation to be non-S&S. However, he believed 

that if someone contacted these unguarded pinch-point with their 

finger or hand they would likely sustain permanently disabling 

injuries. 

Mr. Pruitt stated that he based his moderate negligence 

finding on the fact that the respondent had all of the other 

pumps at the facility properly guarded. Abatement was achieved 

by blocking the area going into the tank and pump area so that no 

one could enter. He confirmed that there was a two to two ahd 

one-half feet distance between the tank and the opening and that 

the exception found in section 56.14107(b) did not apply in this 

case. 

On Cross-examination, Mr. Pruitt confirmed that during a 

prior inspection visit there was a metal type enclosure or cover 

placed over the motor and pump in question. Although the cover 

was over the equipment, the two openings would allow anyone to 

walk into the area where the pump and motor were located. He 

also confirmed that someone would have to walk around the motor 

to reach the unguarded V-belt drive area. He agreed that if 

there were no openings exposing the belt drive the large tank 

placed over the equipment would be an adequate guard. 

Docket No. SE 91~663-M 

MSHA Insoector Darrell Brennan testified that he has been so 

employed for 13 years. He confirmed that he issued Citation 

No. 3605255 (Exhibit P-2), on March 26, 1991, after finding that 

the windshield on the loader was completely shattered and loose 

at the top of the frame and that the rubber grommet around the 

windshield frame was the only means of holding it secure. The 

loader was being used by an employee in the pit and Mr. Brennan 

confirmed that he climbed on and in the loader in order to 

inspect the windshield. He believed that the loosely fitted 

windshield could have fallen out while the machine was being 

operated, and if it did, the operator could sustain cuts from the 

jagged glass edges. Although the condition of the windshield 

obscured the visibility of the operator, the greater hazard was 

193 
the fact that the operator could sustain cuts on his hands in the 

event the windshield broke and fell in on him while operating the 

machine. 

Mr. Brennan stated that he based his significant and 

substantial finding on his belief that it was reasonably likely 

that the windshield could fall in on the operator, and if it did, 

it would result in severe cuts to the operator's hands. He 

confirmed that abatement was achieved by removing the windshield. 

He also confirmed that he based his moderate negligence finding 

on his belief that the equipment operator and the respondent 

should have observed the condition of the windshield and taken 

steps to correct the condition. 

On cross-examination, Mr. Brennan confirmed that the rubber 

grommet which is used to hold the windshield secure and in place 

is normally used for that purpose regardless of the condition of 

the windshield. 

Inspector Brennan stated that he issued Citation 

No. 3605256, on March 26, 1991, after determining that the 

parking brake on the same loader with the shattered windshield 

would not hold the machine (exhibit P-3). The loader was coming 

out of the pit on a slight incline, and after it was stopped, the 

operator applied the parking brake and it would not hold or stop 

the machine. The loader was empty, and the operator initially 

stopped the machine with the service brakes. He took it out of 

gear and applied the parking brake and it would not hold the 

machine. 

Mr. Brennan stated that he considered the violation to be 

non-"S&S" because the service brakes were operational and could 

stop the machine, and there was no hazard exposure to many 

people. He based his moderate negligence finding on his belief 

that the equipment operator and the respondent should have been 

aware that maintenance was needed and that the brake condition 

should have been reported. Mr. Brennan confirmed that when he 

next returned to the mine the condition was abated and he 

terminated the citation. He believed that the respondent 

installed a new brake cable and brake shoes. 

On cross-examination, Mr. Brennan stated that the service 

brakes were workable. He confirmed that the loader bucket could 

be dropped to stop the machine and he recalled that the operator 

applied the service foot brake and dropped the bucket at the time 

he stopped the machine so that he could inspect it. 

Inspector Brennan stated that he issued Citation No. 3605257 

on March 26, 1991, (exhibit P-4) after inspecting another loader 

and finding that the parking brake would not hold the machine 

when it was applied by the operator. He confirmed that this 

loader was also operating in the pit and that the service foot 

194 
brakes were operable. He considered·the violation to be non-S&S, 

because an injury was unlikely. However, in the event of injury 

resulting from the machine running into someone, it would result 

in "lost workday or restricted duty" type injuries. He believed 

the violation was the result of moderate negligence because the 

equipment operator should have been aware of the condition and 

reported it so that repairs could be made. A new parking brake 

cable and brake shoes were installed to abate the violation. 

On cross-examination, Mr. Brennan stated that he did not 

further inspect the loader to determine whether it was equipped 

with a transmission parking device. 

Docket No. SE 91-756-M 

Inspector Brennan testified that he issued citation 

No. 3605258, on March 26, 1991, after determining that the 

dredge operator on the barge used to suck up sand was exposed to 

noise levels in excess of the noise limits stated in the cited 

mandatory standard section 56.5050. Mr. Brennan stated that he 

conducted a noise survey for the full eight hour work shift from 

7:00 a.m. to 3:00 p.m., using a Quest noise dosimeter. The 

device was clipped to the shirt collar near the ear of the 

employee operating the dredge. He checked the device readings 

periodically during the testing period. The results of his test 

are shown in exhibit P-6. 

Mr. Brennan stated that the sound level meter readings 

varied from 90 to 96 dBA's, but that the average noise exposure 

during the shift was equivalent to an eight hour exposure of 93 

dBA's. This exceeded the required and acceptable level of 90 

dBA's pursuant to section 56.5050. He confirmed that the source 

of the noise was the dredge electric pump motor, and that the 

operator was not wearing personal hearing protection. 

Mr. Brennan stated that the violation was abated after the 

respondent constructed an insulated plywood barrier and installed 

it between the electric motor and the dredge operator. The 

measured noise exposure after this installation was reduced to 

86.5 dBA's, and he attributed this to the barrier. He estimated 

the cost of construction of the barrier at approximately $100,and 

he did not believe that this expense was out of proportion to the 

reduced noise exposure which was achieved. 

On cross-examination-, Mr. Brennan stated that he had no 

knowledge as to whether any previous noise studies or tests were 

ever made at the respondent's mining operation. He did not know 

the cost of the dosimeter which he used at the time of the 

inspection, and indicated that such a device could be purchased 

at Radio Shack for approximately $20. 

195 
In response to further questions, Mr. Brennan stated that he 

considered the violation to be significant an substantial because 

it was reasonably likely and proven that long exposure to 

excessive noise levels can cause permanent hearing loss. He 

confirmed that he did not test any other equipment for noise and 

believed that the plant was down for maintenance at the time of 

his inspection. He confirmed that the violation was the result 

of moderate negligence and that the respondent should have been 

aware of the noise requirements found in section 56.5050. He 

further stated that the respondent had the option of using 

administrative controls to limit the noise exposure by rotating 

different employees to operate the dredge. As far as he knew, 

the employee who he tested was the only person regularly assigned 

to the dredge. 

Respondent's Testimony and Evidence 

Docket No. SE 91-93-M 

Carl Brown, the operator, produced three photographs of the 

cited pump V-belt drive in question (exhibits R-1 through R-3). 

Mr. Brown stated that the cover which was previously placed over 

this equipment was placed there to protect it from the sun which 

at times generated a lot qf heat. The tank enclosure was 

installed to guard the pump and V-belt drive and the doors were 

cut out and a fan installed to provide cooling. Mr. Brown was of 

the opinion that the metal enclosure previously placed over this 

equipment provided adequate guarding. He also pointed out that 

the area in question is a remote area and that "not even a 

rabbit" could get caught in the cited V-belt drive. 

On cross-examination, Mr. Brown stated that the V-belt drive 

in question is visible and accessible through the doorway opening 

shown in photographic exhibit R-3, and that the wire mesh 

enclosure shown in exhibit R-2 was installed as a guarding device 

to abate the citation. 

Docket No. SE 91-663-M 

Carl Brown testified that the cited John Deere 444 loader 

was purchased approximately 10 years ago as a used machine and 

that the parking brake was inoperative. He stated that parts 

were purchased at that time and the parking brake was repaired. 

He maintained that the loader operator does not use the parking 

brake and that the loader bucket is routinely dropped when the 

loader operator parks the machine or stops it. He also indicated 

that the loader transmission has a park mode which is used to 

hold the machine. 

With respect to the cited 664 CB loader, Mr. Brown stated 

that the loader is rusty, sandy, and wet and that this affects 

the parking brake. He produced a photograph of the interior 

196 
braking pedals and devices to support his description of the 

machine (exhibit R-2). He also indicated that the parking brake 

is not used and that the operator drops the bucket to hold the 

machine. 

With regard to the cited loader windshield condition, 

Mr. Brown produced three photographs of the loader in question 

(Exhibit R-1). He took the position that the condition of the 

windshield did not obstruct the vision of the operator. He 

disagreed that the windshield was totally shattered, and he 

described the conditions shown in the photographs as cracks. He 

also did not believe that the windshield could fall out and 

shatter and he stated that when it was removed from the machine 

it came out intact and in one piece, and that it was "safety · 

glass". 

Docket No. SE 91-756-M 

With regard to the cited noise violation, Mr. Brown 

suggested that he was not aware of the noise requirements found 

in the cited regulation and he stated that he did not have a 

dosimeter to conduct any noise exposure tests. He further stated 

that MSHA inspectors have not previously tested his equipment for 

noise and he believed that an inspector should first inform him 

of what is required for compliance rather than issuing him 

citations and fines for violations. He also believed that noise 

from trains which pass by his property are louder than the noise 

from the cited dredge motor. 

Findings and Conclusions 

Citation No. 3251229 

I conclude and find that the unrebutted and credible 

evidence presented by the petitioner establishes a violation of 

mandatory safety standard 30 C.F.R. § 56.14107(a). Although the 

respondent made an initial effort to guard the cited pump V-belt 

drive, the testimony of the inspector and the photographs 

presented by the respondent establish that the _two openings in 

the tank enclosing the pump exposed the unguarded pinch points 

and presented a hazard to anyone who may have inadvertently come 

in contact with these moving parts. The standard requires that 

such moving machine parts be guarded to prevent persons from 

contacting the exposed drive .. While it is true that the cited 

equipment was located in a remote area where employees did not 

routinely work or travel, and mitigates the gravity, this is no 

defense to the violation. The citation IS AFFIRMED. 

Citation 3605255 

In this instance, the respondent is charged with a violation 

of 30 C.F.R. § 56.14103(b), because of·the cited condition of the 

197 
windshield on the front-end loader. The standard requires the 

replacement or removal of damaged self-propelled mobile equipment 

windows which obscure visibility necessary for safe operation, or 

create a hazard to the eguipment operator. 

Although the citation written by the inspector states that 

it was "shattered" and does not reflect whether the condition 

posed a visibility problem,or created a hazard to the equipment 

operator, the inspector testified that his principal concern was 

that the shattered windshield, which he personally inspected and 

observed and found to be loosely fitted in the frame and held 

into place by a rubber grommet, could have fallen in on the 

equipment operator and cut his hands. 

The respondent's defense is that the windshield condition 

did not obscure the operator's visibility. The respondent also 

maintained that since the damaged windshield was removed in one 

piece to abate the citation, it was unlikely that it would fall 

in on the operator and that it did not pose a hazard. 

The photographic exhibits submitted by the respondent 

reflect that the operator has a clear view out of the window from 

his position in the cab. Accordingly, I conclude and find that 

the condition of the windshield did not obscure his visibility. 

After viewing the photographs, I find that the windshield 

was shattered at the top and contained several large cracks and 

"pitted" areas along the entire surface, partipularly at the 

bottom immediately in front of the steering wheel where the 

operator is seated. In view of these conditions, I conclude and 

find that they created a hazard to the operator while he was 

seated behind the windshield while operating the loader in the 

pit. I further conclude and find that given the condition of the 

windshield, as shown in the photographs, it was reasonably likely 

that the loosely fitted, cracked, and shattered windshield could 

have fallen in on the operator while the loader was operating in 

the pit, exposing him to a hazard and placing him at risk. Under 

the circumstances, I conclude and find that a violation has been 

established and the citation IS AFFIRMED. 

Citation Nos. 3605256 and 3605257 

The credible testimony and evidence presented by the peti~ioner establishes that the parking brakes which were 

installed on the two cited front end loaders would not hold the 

empty equipment when the brakes were applied by the operator on 

the sight pit grades. The cited mandatory section 

56.14101(a) (2), provides that.if self-propelled mobile equipment 

is equipped with parking brakes, the brakes must be capable of 

holding the equipment with typical loads on the maximum grade it 

travels. In these instances, the brakes would not hold the 

loaders, which were empty,, on slight pit grades. 

198 
The respondent's defense is that the loader's were subjected 

to wear and tear and that one or both of them were equipped with 

transmissions which had a stopping or parking mode, and that the 

buckets are routinely dropped to prevent the loaders from moving 

is rejected. The standard does not provide for the use of 

transmissions or dropped buckets to hold a loader which is 

equipped with a parking brake. The parking brake must be 

operable and capable of holding the machine, independent of any 

other devices. In this case, it is clear that the parking brakes 

would not hold the loaders, and that they did not function as 

they were obviously intended to function when they were installed 

on the equipment. Under the circumstances, I conclude and find 

that the violations have been established, and the citations ARE 

AFFIRMED. 

Citation No. 3605258 

I conclude and find that the credible and unrebutted 

evidence presented by the petitioner, including the noise survey 

test results, supports the inspector's finding that the dredge 

operator was exposed to noise levels in excess of the 

requirements found in the cited standard section 30 C.F.R. 

§ 56.5050. Accordingly, the citation IS AFFIRMED. 

Significant and Substantial Violations 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.F~R. § 814(d) (1). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

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

commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

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

mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

in an injury; and (4) a reasonable likelihood that the 

injury in question will be of a reasonably serious 

nature. 

199 
In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury." U.S. Steel Mining co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in 

accordance.with the language of section 104(d) (1), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. U.S. steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984); U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

In United States Steel Mining Company, Inc., 7 FMSHRC 327, 

(March 1985), the Commission reaffirmed its previous holding in 

U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984) that it 

is the contribution of a violation to the cause and effect of a 

hazard that must be significant and substantial, and that a 

determination of the significant and substantial nature of a 

violation must be made in the context of continued normal mining 

operations, including the question of whether if left uncorrected, the cited condition would reasonably likely result in an 

accident or injury. 

Citation No. 3605255 

I conclude and find that the has not rebutted the credible 

testimony of the inspector in support of his "S&S" finding 

concerning the windshield condition on the John Deere 644 CB 

front-end loader. I find that the inspector's testimony supports 

a reasonable conclusion that in the normal course of operating 

the loader in the pit area, the loader operator was exposed to a 

hazard in the likely event that the loosely fitted and broken 

windshield fell in on him while seated at the operator's control. 

If this occurred, I find that it was reasonable likely that the 

loader operator would sustain cuts of a reasonably serious 

nature. Under the circumstances, the inspector's "S&S" finding 

IS AFFIRMED. 

Citation No. 3605258 

I conclude and find that the inspector•s credible and 

unrebutted testimony that long term exposure to excessive noise 

levels can result in permanent hearing loss support his "S&S" 

finding. The unrebutted evidence reflects that the dredge 

operator who was tested was the only person regularly assigned to 

the dredge, and he was not wearing personal hearing protection, 

and no administrative controls were being used. Given the fact 

200 
that the evidence suggests that the dredge operator had not 

previously been tested, and that prior noi$e surveys were not 

conducted at the mine site, I believe one can reasonably conclude 

that he was probably exposed to excessive noise levels over a 

relatively long period of time. Under the circumstances, the 

inspector's "S&S" finding IS AFFIRMED. 

Size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to Continue in Business 

The parties stipulated that the respondent is a small mine 

operator and that the payment of the civil penalty assessments 

proposed in these proceedings will not adversely affect its 

ability to continued in business. I adopt these stipulations as 

my findings in these proceedings. 

History of Prior Violations 

The evidence reflects that the respondent was served with 

two single penalty citations during the period March 26, 1989, 

through March 25, 1991, and paid a civil penalty assessment of 

$20 for one of these violations. The second violation is the 

contested Citation No. 3251229, which is the subject of Docket 

No. SE 91-93-M. I conclude and find that for purposes of the 

instant proceedings, the respondent has a good compliance history 

and I have taken this into account. 

Gravity 

Based on the inspector's·gravity and non-S&S findings with 

respect to citation Nos. 3251229, 3605256, and 3605257, I 

conclude that these violations were non-serious . With regard to 

Citation Nos. 3605255 and 3605258, concerning the condition of 

the loader windshield and the dredge operator's noise exposure, I 

agree with the inspector's gravity findings and conclude that 

these were serious violations. 

Negligence 

I agree with the inspector's moderate negligence findings 

with respect to all of the contested citations, and I conclude 

that all of the violations resulted from the respondent's failure 

to exercise reasonable care. 

Good Faith Abatement 

The parties stipulated that all of the violations in these 

proceedings were timely abated by the respondent in good faith. I 

adopt the stipulations as my findings. 

201 
Civil Penalty Assessments 

Based on the foregoing findings and conclusions, and taking 

into account the civil penalty assessment criteria found is 

section llO(i) of the Act, I conclude and find that the following 

civil penalty assessments are reasonable and appropriate for the 

violations which have been affirmed. 

Docket No. SE 91-93-M 

Citation No.· Date 30 C.F.R. Section Assessment 

3251229 9/24/90 56.14107(a) $20 

Docket No. SE 91-663-M 

Citation No. Date 30 C.F.R. Section Assessment 

3605255 3/26/91 56.14103(b) $40 

3605256 3/26/91 56.1410l(a) $20 

3605257 3/26/91 56.1410l(a) (2) $20 

Docket No. SE 91-756-M 

Citation No. Date 30 C.F.R. Section Assessment 

3605258 3/26/9'1 56.5050 $35 

ORDER 

The respondent IS ORDERED to pay civil penalty assessments 

in the amounts shown above for the citations which have been 

affirmed. Payment is to be made to MSHA within thirty (30) days 

of the date of these decisions, and upon receipt of payment these 

matters are dismissed. 

Distribution: 

~~eh.~Ko~~ ~~a~~ 

Administrative Law Judge 

Michael K. Hagan, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 339, 1371 Peachtree Street, NE., Atlanta, GA 

30367 (Certified Mail) 

Mr. Carl Brown, Brown Brothers Sand Company, Box 22, Howard, GA 

31039 (Certified Mail) 

/ml 

202 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 4 i992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ZEIGLER COAL COMPANY, 

Respondent 

Docket No. LAKE 91-635 

A.C. No. 11-02408-03642 

Zeigler No. 11 Mine 

DECISION 

Appearances: - Ra_f ael Alvarez, Esq. , U. s. Department of Labor, 

Office of the Solicitor, Chicago, Illinois, for 

Petitioner; 

Gregory s. Keltner, Esq., Zeigler coal Company, 

Fairview Heights, Illinois, for the Respondent. 

Before: Judge Koutras 

statement of the Case 

This proceeding concerns proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

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

1977, 30 u.s.c. § 820(a), seeking civil penalty assessments in 

the amount of $40, for two alleged violations of certain 

mandatory safety standards found in Part 75, Title 30, Code of 

Federal Regulations. A hearing was held in St. Louis, Missouri, 

and the parties waived the filing of posthearing briefs. 

However, I have considered their oral arguments made on the 

record during the hearing in my adjudication of this matter. 

Issues 

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

conditions or practices cited by the inspector constitute 

violations of the cited mandatory safety standards, and (2) the 

appropriate civil penalties to be assessed for the violations, 

taking into account the statutory civil penalty criteria found in 

section llO(i) of the Act. Additional issues raised by the 

parties are identified and disposed of in the course of this 

decision. 

203 
Applicable statutory and Regulatory Provisions 

1. The Federal Mine Safety and health Act of 1977, 

30 u.s.c. § 801 et seq. 

2. Commission Rules, 29 C.F.R. § 2700.1, et seq. 

3. Mandatory safety standards 30 C.F.R. § § 75.1105 and 

75.316. 

Stipulations 

The parties stipulated to the following (Exhibit AIJ-1): 

1. The Commission has jurisdiction in this proceeding. 

2. The respondent owns and operates the No. 11 Mine, an 

underground mine extracting bituminous coal, and the mine 

affects interstate commence. 

3. As of February 5, 1991, the respondent extracted · 

14,918,109 tons of coal at all of its mines. The No. 11 

Mine extracted 1,655,780 tons of coal from February 5, 1990, 

to February 5, 1991. 

4. Respondent had 183 violations in the preceding 24 months 

ending on May 30, 1991, at the Murdock Mine and Mine No. 11. 

5. The payment of the full civil penalty assessments for 

the citations in question will not impair the respondent's 

ability to continue in business. 

6. On May 2, 1991, Inspector Robert Montgomery conducted an 

inspection in Mine No. ii. He found that belt air was 

traveling from the section belt tail outby and no regulator 

was provided in the intake stopping line. The check curtain 

was between the No. 23 and 24 crosscuts. This was in the 

east off 2nd north off main east unit No. 3 working section. 

The inspector issued Citation No. 3536731 for an alleged 

violation of 30 C.F.R. § 75.316. 

Discussion 

Section 104(a) non-''S&S" Citation No. 38~2906, issued on 

April 17, 1991, cites an alleged violation of mandatory safety 

standard 30 C.F.R. § 75.1105, and the cited condition or practice 

is described as follows: 

The air current used to ventilate a battery charging 

station was not coursed directly into the return. The 

charging station contained a set of batteries for a 

battery powered scoop tractor that had the charging 

204 
leads connected to the battery but no power was on the 

charging box. A chemical smoke cloud was used to 

determine the direction of air flow in the charging 

station. This smoke cloud showed part of the air 

ventilating the charging station coursing into the 

haulage entry and not to the return entry. 

The parties agreed to settle this violation and they 

presented arguments on the record in support of the settlement. 

The parties agreed that the issue with respect to the violation 

is whether or not the area cited as a battery charging station 

was in fact such a· station covered by section 75.1105. The 

parties confirmed that after discovery, including the taking of 

depositions, the respondent conceded that the cited area was a 

battery charging station. Further, the respondent does not now 

dispute the fact that the. station was not in compliance with the 

cited section 75.1105, and it concedes that the citation was 

properly issued (Tr. 12-13). 

The respondent agreed to pay the full amount of the proposed 

civil penalty assessment and to withdraw its contest. After 

further consideration of the pleadings and arguments in support 

of the proposed settlement, and pursuant to Commission Rule 30, 

29 C.F.R. § 2700.30, the settlement was approved from the bench 

(Tr. 15). My decision in this regard is herein re-affirmed. 

Section 104(a) non-"S&S" Citation No. 3536731, issued on 

May 2, 1991, cites an alleged violation of mandatory safety 

standard 30 C.F.R. § 75.316, and the cited condition or practice 

states as follows: 

The ventilation plan was not followed in the No. 3 

unit. The belt air was traveling from the section belt 

tail outby and no regulator was provided in the intake 

stopping line as depicted in sketch No. 6, page 15 of 

the plan. The check curtain was between the No. 23 and 

No. 24 crosscuts. 

Petitioner's Testimony and Evidence 

MSHA Ventilation Specialist, Robert M. Montgomery testified 

that he has been so employed for three years, and previously 

served as a mine inspector for approximately ten years. He 

confirmed that he was familiar with the MSHA approved mine 

ventilation plan through his review of the plan every six months, 

and he identified a copy of the plan (Exhibit R-5, Tr. 20). He 

confirmed that the plan addresses the basic way the mine is to be 

ventilated, and it includes drawings of how the face ventilation 

is to be obtained. He explained that sketches 5 and 6 which 

appear at pgs. 14-15 of the plan depict typical five entry panel 

or room sections, but there could be more or less than five 

entries. He further explained that the term "typical" means 

205 
"examples of the basic system by which they're going to advance 

the working places". The plan was in effect at the time the 

citation was issued, and he exp1·ained tl1-e symbols shown on the 

sketches. Referring to page 2 of the plan, he confirmed that the 

respondent may deviate from the plan sequences where mine 

conditions warrant (Tr. 23). 

Mr. Montgomery confirmed that page 9, paragraph C of the 

ventilation plan covers the construction and operation of 

regulators. He-explained that a regulator provides ventilation 

air from one location to another, and that "in order to comply 

with other sections of the regulations, it's necessary to 

separate your intake escapeway and return from the belt entry 

which means that you have to arrive at air provided for the 

neutral from a clean air source" (Tr. 24). 

Mr. Montgomery stated that on May 2, 1991, he was in the 

process of making a six-month review of the mine ventilation plan 

and he walked the neutral air entries to the mouth of the 

section. He also ·walked the belt line and determined that the 

air was flowing out. After making several smoke tests and noting 

that there was no intake regulator, he determined' that the air 

was coming through the curtain between the No. 23 and No. 24 

crosscut as shown on the sketch which he made at that time 

(Exhib.it P-2, Tr. 25-26.). He confirmed that the intake air was 

in the No. 6 entry and the return was in the No. 1 entry. 

Entries No. 2 through No. 5 were neutral air entries, and the 

No. 4 entry was the belt entry (Tr. 28-29). 

Mr. Montgomery stated that he walked the belt line and 

determined with a smoke cloud that the neutral air was traveling 

outby the face and away from the entries. He found a shuttle car 

parked against a check curtain between the No. 5 and No. 6 

entries, at the No. 25 crosscut, and the air was passing under 

the curtain. He considered this to be a violation of 

section 75.316, because the ventilation plan required the 

installation of an intake regulator just outby the tailpiece in 

the No. 23 crosscut between the No. 5 and No. 6 entries. The 

purpose of the regulator is to allow clean intake air to be 

supplied to the belt and neutral entries. However, in this 

instance, instead of a regulator being used to supply the air, it 

was being supplied by the check curtain which had been pushed 

back by the shuttle car (Tr. 31-35). 

Mr. Montgomery stated that if the shuttle car were moved, 

the curtain would drop and it would be reasonable to expect that 

"the air would travel to the No. 6 working face and then go back" 

(Tr. 37). He confirmed that he checked the air sweeping through 

the check curtain for methane and oxygen content and his test 

device alarm did not sound. He assumed from this that the air 

was "clean air". The air had not swept the face because it was 

coming off the intake and through the check curtain, and it was 

206 
probably the same quality of air that would have gone through the 

regulator if it had been there (Tr. 39-40)w 

Mr. Montgomery stated that the failure to install the 

regulator is a violation of sketch No. 6, page 15, of the 

ventilation plan. Even though clean air was passing through the 

curtain by the shuttle car, a violation still existed because 

"they were relying on a shuttle car being parked in the curtain 

as a place to gain their intake air for their neutral entries. 

When the shuttle· car is moved, it ceases to become that" 

(Tr. 41). Mr. Montgomery did not know whether the use of the 

curtain in lieu of the regulator was by accident or design 

(Tr. 43) . 

Mr. Montgomery confirmed that he issued the citation and 

found a low degree of negligence because during his inspection of 

other units he found that the regulators were installed where 

they were supposed to be under the plan. He confirmed that the 

respondent did not challenge the need for a regulator and 

informed him that one would be installed. He also determined 

that an injury was unlikely because a combination of circumstances would have to occur before any possible injury, and he 

concluded that the violation was non-"S&S". Abatement was 

achieved by removing a block from the intake stopping at the 

No. 23 crosscut between the No. 5 and No. 6 entries, and he smoke 

tested the air after this was done and found that it was 

traveling through the regulator at the required volume and 

velocity (Tr. 45-48). 

On cross-examination, Mr. Montgomery confirmed that the 

ventilation plan does not contain an exhaustive list of when the 

respondent may deviate from the plan sketches, and any deviation 

would depend on what is called for by good mining practices 

(Tr. 8). He confirmed that all of the neutral entries had check 

or isolation curtains across them one crosscut inby the location 

where he believed the required regulator should have been 

installed (Tr. 51). He confirmed that ventilation plan sketch 

No. 6, page 15, rather than sketch No. 5, page 14, applies in 

this case, and he explained that the direction of the air in the 

intake stopping line determines whether a regulator is to be 

provided (Tr. 53). 

Mr. Montgomery confirmed that the ventilation sketch on page 

14 of the ·plan also has check curtains across all neutral 

entries, and that the sketch on page 15 only has one check 

curtain. He explained that plan part 1, paragraph 4(c), provides 

for the hanging of additional curtains as necessary to control 

the air. He did not consider. the lack of a regulator to be a 

minor plan deviation "because you're changing the position from 

where you're obtaining your air for those entries" (Tr. 55). He 

confirmed that he was not involved in the development or approval 

of the ventilation plan in question, and in terms of the approval 

207 
process, he could not speak to the intent of the sketches which 

are included in the plan {Tr. 55). 

Mr. Montgomery stated that there is no ventilation plan 

provision covering the exact situation where all of the neutral 

entries have check curtains across them and the air is flowing in 

an outby direction. He confirmed that there is no specific plan 

sketch that is identical to the situation which caused him to 

issue the citation, but he denied that he overlapped the two plan 

sketches in question. He further explained the basis for issuing 

the citation as follows at {Tr. 56-57): 

Q. So you just looked at Page 15, saw there was 

no regulator, didn't consider the presence of absence 

of the check curtains, and issued the citation? 

A. Yes, sir. 

JUDGE: Let me understand that again. On Page 15, 

sketch No. 6, that Mr. Keltner -- you circ_led it on the 

copy you gave me. That little square with a line 

through it, is that the symbol for regulator? 

THE WITNESS: Right here, yes, sir. 

JUDGE: That is the symbol for regulator? 

THE WITNESS: Yes, sir. 

JUDGE: So you looked at that and then you looked 

at the actual scene and you saw there was no regulator 

there? 

THE WITNESS: Yes, Sir. 

Mr. Montgomery stated that some leakage in check curtains 

can be expected as a normal part of mine ventilation. He 

confirmed that the respondent timely abated the violation in good 

faith {Tr. 63). 

In response to further questions, Mr. Montgomery confirmed 

that he is familiar with ventilation plans and has reviewed them 

as part of his job. He stated that the sketches are "examples", 

and that the sketches showing neutral airflows outby show intake 

regulators, and neutral air flowing inby shows return regulators. 

He explained his sketch of the scene, exhibit P-2, as compared to 

ventilation plan sketch No. 5, including the functioning of the 

regulators and the direction of the air {Tr. 66-70). He 

confirmed that he made a smoke test to determine the direction of 

the air flow outby the check curtains in the No. 2 and 3 entries, 

but he did not measure the air velocity. He did not check the 

air leakage volume, and he believed that the air quantity on the 

208 
intake side was 50,000 cubic feet, and 30,000 on the return side 

(Tr. 72) • 

Respondent's Testimony and Evidence 

David L. Lyon testified that he presently serves as manager 

of accident investigations in the mine safety department, and 

that at the time of the inspection he was the company 

representative traveling with Inspector Montgomery. He stated 

that he has a degree in mining engineering from the University of 

Missouri where he took a course in mine ventilation, and has 

worked 15 years for the respondent in the.safety and engineering 

departments. He has also drafted ventilation plans, and is 

familiar with the mine ventilation plan in this case (Tr. 74-75). 

He described the section where the citation was issued, and 

confirmed that there were check curtains across the four neutral 

entries, and that coal cutting began while he and the inspector 

were on the section (Tr. 76). He further confirmed that he 

assisted the inspector in taking his air readings and that the 

inspector stated that the air was well balanced on the unit. The 

citation was abated by knocking a block out of the stopping at 

the No. 23 crosscut, and it had no effect on the direction of the 

air flow. However, air did flow through the stopping from the 

intake side (Tr. 78). 

Mr. Lyon confirmed that the inspector released some smoke 

clouds to determine the direction of the airflow. The air 

direction in the Nos. 2 through 4 entries "was an outby movement 

and also towards the return stopping line" and the smoke "rose to 

the top and just dissipated" (Tr. 79). Mr. Lyon did not believe 

that there was a violation of the ventilation plan, and he 

explained as follows at (Tr. 80-81): 

A. Basically I told Inspector Montgomery I wanted 

to look at the ventilation plan first. And I looked at 

the ventilation plan with the section foreman and the 

situation we had there did not depict either one of the 

sketches in the plan. We had a situation that wasn't 

really shown on the sketches. 

Q. Did you feel at the time it was in violation? 

A. No. I didn't feel like there was a violation 

at the time. 

Q. Why is that? 

A. Because there wasn't -- the sketch that he was 

using to show the violation was not exactly the 

situation we had there. 

209 
Q~ And even that being the case, Mr. Lyon, why 

did you go ahead and have the hole knocked in the 

stopping? 

A. Well, to -- he was going to write a citation 

and in order to abate it, you know, the citation, we 

had to install .a regulator in that stopping line. 

On cross-examination, Mr. Lyon confirmed that he was very 

familiar with the mine ventilation plan, and that the situation 

he observed with the inspector was not identical to sketch No. 6, 

on page 15 of the plan. He confirmed that at the time of the 

inspection there were six entries, and the plan sketch shows five 

entries (Tr. 82-83). Mr. Lyon agreed that the sketches are only 

examples, and he pointed out that note No. 1 at page 2 of the 

plan allows for variations in the number of entries depending on 

ventilation requirements and mining conditions and that the plan 

serves as a guide for good mining practices to provide safe 

ventilation. He explained that a regulator directs the air from 

the intake into the neutral, or from the neutral into the return, 

and that the regulator shown on the sketch is used to draw either 

the intake into the neutral or the neutral into the return. The 

regulator shown on the sketch directs the air flow from the 

intake into the neutrals so that the neutrals have enough air 

movement to preclude any methane build-up on the belt entry. 

Mr. Lyon agreed that nonpermissible equipment and power points 

are located ·in the belt entries and that the neutral and return 

air which has passed the working faces should not be coursed into 

these entries (Tr. 87). He also agreed that regulators are 

important and conceded that there was no regulator in the 

stopping (Tr. 89). 

In response to further questions Mr. Lyon stated that it was 

his position that insofar as the neutral curtains and neutral air 

movement is concerned, none of the sketches in the ventilation 

plan are applicable to the situation which was presented a~ the 

time of the inspection. Mr. Lyon further stated that sketch 

No. 5 does not appiy, and he believed that the citation was 

issued in error because there was no ventilation sketch that 

applied to the particular situation presented (Tr. 91). 

David Stritzel, respondent's director of health and 

safety, stated that he holds a B.S. degree in mining engineering 

from the University of Missouri at Rolla, and that his studies 

included ventilation. His responsibilities include the 

development of ventilation plans, and his former experience 

includes eleven years of service as a Federal coal mine inspector 

and supervisory technical specialist reviewing various mine plans 

(Tr. 92-97). He confirmed that he was familiar with the mine 

ventilation plan in effect on May 2, 1991, and that he wrote it. 

He confirmed that he was not present when the inspector issued 

the citation, and he did not dispute the facts as found by the 

210 
inspector. However, he did not believe that there was a 

violation (Tr. 98-99). 

Mr. stritzel stated that the only purpose for an intake 

regulator in the ventilation plan is in connection with the check 

curtains which were up across all of the neutral entries. He 

explained that as a result of a fatality which occurred in 1985, 

in an accident involving equipment passing through one of the 

curtains, the company decided that the best method for avoiding 

future incidents· of this kind was to eliminate the check 

curtains. He submitted such a plan to MSHA, and during the 

discussions with MSHA which followed; the control and direction 

of the air became an issue, and discussions continued for a year 

while he resubmitted a plan to allow the removal of the check 

curtains (Tr. 99-102). He further explained as follows at 

(Tr. 102-104): 

* * * * * * 

And the stipulation that MSHA was demanding in that 

plan in order to approve my request to remove those 

curtains, they requested only two items; one, that an 

isolation curtain be maintained in the power entry and 

that a hole be knocked out in the intake stopping line. 

And quite frankly, I was tired of fussing with them and 

it dragged on already for a year and those two 

particular items I didn't see where it did anything or 

would have no effect on the ventilation or have any 

effect on the mining process so I just gave in and put 

it into the plan knowing it would have no effect 

simply so we could get rid of these isolation curtains 

and we wouldn't have to be faced with people getting 

killed again. 

* 

Mr. Stritzel agreed that the check curtains were up at the 

time of the inspection, but he did not believe that they were 

necessary and he could not explain why the foreman had them 

installed. He also agreed that what the inspector observed and 

sketched at the time of the inspection was similar to ventilation 

plan sketch No. 6, as well as No. 5. He confirmed that the plan 

does not clearly explain when the two sketches are to be applied, 

and he stated as follows at (Tr. 110-112): 

* * * * * * 

But if someone were to just pick ~p this plan, I'm 

having difficulty right at this point in time and -- I 

mean I haven't reviewed it carefully but it would seem 

to me that the plan some place in here would explain in 

King's English when sketch No. 5 applied and when 

211 

* 
sketch No. 6 applied .. But apparently it doesn't do it, 

does it? 

THE WITNESS: No, sir, it doesn't. In the 

development of the plan both of those issues on the 

regulator on the intake. stopping and that one isolation 

curtain in reference to sketch No. 6 were both issues 

that I objected to that was demanded by MSHA. 

I merely put them in there simply because I saw 

where they had no effect. We haven't had any problem 

with the application of these sketches by any of the 

inspectors that inspect No~ 11 mine until this 

incident. This is the first time we were issued a 

citation for this particular issue so it never was a 

problem. 

THE WITNESS: I will tell you very frankly. It's 

not that it's an issue that causes us any significant 

economic problems or safety problems or anything else. 

It centers around one issue. It's part of the programs 

that's being developed by MSHA in Washington that puts 

our company in a spot. 

What I'm referring to is the special emphasis 

program. 75.316 is one of the criteria that they've 

targeted. We've already been.hit with one mine placed 

on this special emphasis program. 

We have very strong feelings about that program. 

We feel it is illegal. Encompassing provisions like 

316 is too broad. It encompasses too many different 

provisions of the law or particular type violations. 

* * * * * * 

This is one of the particular criteria; 75.316, 

that MSHA has targeted. Consequently, we're looking 

very close at each and every one of those provisions 

that MSHA has targeted to be included in this special 

emphasis program. 

* 

Mr. Stritzel believed that the placement of the curtains 

determines whether or not a regulator is required, and when asked 

why the ventilation plan does not specifically state that this is 

the case, he explained that during the development of the plan 

"there didn't seeni to be a need for it because of all of the 

discussions which took place and no one expressed any problems 

with wanting to know why that regulator was there and under what 

circumstances" (Tr. 117). 

212 
On cross-examination, Mr. Stritzel stated that the regulator 

shown "to the far right" in ventilation plan sketch No. 6 has no 

purpose whatsoever and that it was placed in the sketch "to 

satisfy MSHA's desires" (Tr. 118). He stated that the regulator 

would suck in intake air, but that the regulator on the intake 

stopping line as shown in the sketch is not necessary (Tr. 123). 

He confirmed that regulators are also shown on sketch No. 6, for 

proper ventilation of the neutral air on the return side 

(Tr. 124). 

Mark Eslinger, MSHA ventilation engineer, who was present at 

the hearing, was called as the court's witness in this matter to 

clarify the ventilation plan. He stated as follows at (Tr. 137-

139): 

MR. ESLINGER: Sir, if we approve this sketch 

without the regulator and that the source of the intake 

air that goes down the belt and other neutral entries 

came from a curtain as shown on a sketch, yes, that 

would be okay. 

But we don't approve that. Sir, I have not -- I'm 

involved in a day-to-day approval of mine plans and we 

have not approved a curtain regulator let's say as the 

means providing the neutral air to the neutral entries. 

* * * * * * 

Q. Is there any reason why this particular 

ventilation plan doesn't explain when sketch 5 comes 

into play and when sketch 6 comes into play? 

A. Judge, I understand it as the way I would 

approve that plan is every time the belt air goes into 

outby direction -- every time that the belt air or the 

neutral air flows out that there is a regulator on 

intake stopping letting the air in. 

Q. So that would be exactly how the inspector has 

his sketch. The air is going in the outby direction? 

A. Yes, going outby direction, going out of the 

mine. There is a regulator to let it in. Every sketch 

for the air goes out, there is a regulator on the 

intake side. Every sketch where the air goes in the 

inby direction, there is a regulator on the return side 

to let the air out. 

* 

Mr. Eslinger confirmed that according to the inspector's 

smoke tests, the air used to ventilate the neutral entries was 

air that had not yet reached the face. The air going up the 

intake entry was sweeping past the curtain and shuttle car and it 

213 
was in effect performing a function similar to that of the 

regulator. Mr .. Eslinger agreed that the inspector issued the 

citation after he sketched out the conditions he observed and 

concluded that a regulator was required pursuant to plan sketch 

No. 6 (Tr. 139-140). He stated as follows at (Tr. 141-142): 

Q. You also heard Mr. Stritzel's comment that 

this that Zeigler put this stopping in this sketch 

No. 6 grudgingly, shovingly? 

A. Yes. 

Q. And pretty much to placate MSHA if you will so 

they could get their plan? 

A. Yes. 

Q. Do you agree with that? 

A. Yes. That is an adversarial relationship, 

sir. 

Q. So there is some difference of opinion as to 

the usefulness of this particular stopping on sketch 6? 

A. No. I've never known ther~ being a question on 

the regulator. I knew there was a question on the 

number and location of curtains but never on the 

location of the regulator. This is the first time I've 

heard that argument presented, sir. 

Q. But there was some difference of opinion about 

where to put the curtains? 

A. Correct. 

Q. But not on the regulator? 

A. Correct. 

Petitioner's Arguments 

Petitioner's counsel argued that the facts in this case are 

not disputed or controverted by the respondent. He stated that 

the inspector believed that a regulator was necessary between the 

No. 23 and No. 24 stoppings, as shown on the ventilation plan map 

because it ·was necessary to have intake air go over the belt line 

in the neutral air. Counsel conceded that intake air was flowing 

in that area at the time of the inspection, even without the 

regulator, but he took the position that the curtain propped 

against the shuttle car was used for this purpose and that once 

214 
mining took place, the shuttle car would be used for mining and 

it is not intended to be used for ventilation. Counsel asserted 

that the regulator shown in the sketch is there to provide intake 

air over the belt entry. Since it is unrebutted that nonpermissible power points are located in that entry, intake air is 

necessary to clear out any contaminants, particularly methane 

(Tr. 127-130). 

Petitioner's counsel asserted further that the ventilation 

plan provides for the use of ventilation check curtains to 

regulate the flow of air, and the plan also covers the 

construction of regulators to help regulate the neutral air. 

Counsel pointed out that regulators are permanent air control 

devices and that curtains can be ripped down and may fall 

(Tr. 132-135). 

Respondent's Arguments 

Respondent's counsel took the position that ventilation plan 

sketch No. 6 does not apply in this case because the direction of 

the air flow is irrelevant. Counsel further asserted that sketch 

No. 5 is not a fair and accurate representation of the prevailing 

situation at the time of the inspection and that both sketches 

have some similarities to what the inspector found. Counsel 

argued that there is no specific sketch covering the situation 

which prevailed, and since MSHA is responsible for approving the 

ventilation plan, it should require the respondent to put a 

specific sketch in its plan. Since the plan does not cover every 

contingency and provides for certain exceptions, counsel 

concluded that MSHA has the burden of proving a violation and 

that it has not done so in this case (Tr. 144-146). 

Findings and Conclusions 

Fact of violation. Citation No. 3536731. 

In this instance the respondent is charged with a violation 

of mandatory safety standard 30 C.F.R. § 75.316, for failure to 

follow its approved ventilation system and methane and dust 

control plan. It is well settled that the failure to follow an 

approved plan constitutes a violation of section 75.316, which 

provides as follows: 

A ventilation system and methane and dust control plan 

and revisions thereof suitable to the conditions and 

the mining system of the coal mine and approved by the 

Secretary shall be adopted by the operator and set out 

in printed form on or before June 28, 1970. The plan 

shall show the type and location of mechanical 

ventilation equipment installed and operated in the 

mine, such additional or improved equipment as the 

215 
Secretary may require, the quantity and velocity of air 

reaching each working face, and such other information 

as the Secretary may require. Such plan shall be 

reviewed by the operator and the Secretary at least 

every 6 months. 

The citation was issued after the inspector, who is a 

ventilation specialist, observed that a ventilation regulator was 

not installed in the intake stopping line, and that instead of a 

regulator, the respondent was using a check curtain pushed back 

by a shuttle car to supply air ventilation to the belt entry. 

The inspector believed that ventilation sketch No. 6, which 

appears at page 15 of the applicable MSHA approved ventilation 

plan, which is labeled a "typical 5-entry panel or room section", 

and which clearly shows a regulator installed in a cross-cut 

between two entries, applied to the six-entry section in 

question. He further believed that a regulator was required at 

the stopping location in the No. 23 crosscut between the No. 5 

and No. 6 entries as shown on the sketch of the scene which he 

made in the course of his inspection (Exhibit P-2). 

Although the inspector conceded that the air passing under 

the check curtain which had been propped open by the shuttle car 

was "clean air", he was concerned that once mining began, the 

shuttle car would be moved and used in the mining process and the 

curtain would drop and would no longer serve as a device to 

supply or course the air to the belt entry in question. Under 

the circumstances, and in order to maintain and allow an 

uninterrupted means of regulating the airflow through the belt 

entry in question, the inspector believed that the respondent 

should have provided a regulator as shown in ventilation sketch 

No. 6, which was incorporated as part of the approved plan. 

The inspector conceded that the cited violative condition 

was on a six entry panel or section, rather than a five entry 

panel or section as shown on the ventilation sketch in question. 

However, he explained that the sketch is int.ended as an example 

of a typical basic system or method of ventilating a unit as 

mining is advanced, and that there is no identical or specific 

sketch which may apply to neutral entries, including a belt 

entry, which have check curtains installed across all of the 

entries and air is flowing in an outby direction. Under these 

circumstances, he believed that the use of a check curtain 

propped open by a shuttle car was not intended as a means of 

regulating the air flow over a belt entry where nonpermissible 

power points are located, and that a regulator was required under 

the particular conditions he found at the time of his inspection. 

The respondent concedes that there are similarities in 

ventilation sketches 5 and 6, and the conditions found by the 

inspector at the time of his inspection and which prompted him to 

issue the citation. However, the respondent's defense is based 

216 
on an argument that the approved ventilation plan does not 

include a sketch which is identical to the situation found by the 

inspector. However, respondent's safety manager Lyon, who was 

familiar with the ventilation plan, acknowledged that the plan 

sketches are only examples, and he.cited the ~irst part of the 

plan which allows for variations in the number of entries 

depending on ventilation requirements and good mining practices, 

and provides for deviations from the plan under certain 

circumstances. Mr. Lyon did not believe that there was a 

violation becaus.e there is no identical sketch which precisely 

covers the ventilation system in use at the time of the 

inspection. However, he conceded that regulators are important 

ventilation devices. · 

Respondent's safety director Stritzel, who drafted the 

ventilation plan which was in effect at the time of the citation, 

but who was not present during the inspection, did not dispute 

the facts as· found by the inspector at that time. He also agreed 

that the inspector's sketch of the prevailing conditions as he 

observed them were similar to ventilation sketch No. 6, as well 

as sketch No. 5. Even though he authored the plan, Mr. Stritzel 

admitted that it does not clearly explain the conditions under 

which the two sketches would apply. Further, Mr. Stritzel was of 

the opinion that an intake regulator served no useful purpose, 

and he indicated that the regulator provided for in the 

ventilation plan was ineluded as part of the plan at the 

insistence of MSHA following a fatality which resulted from 

equipment passing through one of the ventilation check curtains 

which has been installed across neutral entries. Mr. Stritzel 

stated that in exchange for allowing him to eliminate the 

curtains, MSHA insisted on a regulator in the intake stopping 

line. However, he could not explain why the curtains were 

installed across the neutral entries at the time of the 

inspection in this case, and he did not believe they were 

necessary. In short, Mr. stritzel apparently did not believe 

that the ventilation curtains which were in place, or the 

regulator which was not in place, were necessary to maintain the 

ventilation at the time of the inspection. 

MSHA's ventilation engineer Eslinger, who agreed with 

Mr. Stritzel's testimony that the regulator was included as part 

of the ventilation plan at MSHA's insistence, testified that any 

prior disagreements by the respondent were in connection with the 

number and location of ventilation curtains, and that the 

respondent has never at any time prior to this case voiced any 

disagreement about the need for a regulator. Mr. Eslinger also 

agreed that under the conditions found by the inspector at the 

time of his inspection, a regulator, rather than a curtain, would 

be required in those instances where the air ventilation is 

traveling in an outby direction in a neutral belt entry. 

217 
Part I, paragraph 1, page 2, of the respondent's applicable 

ventilation plan (Exhibit R-5), provides as follows: 

The enclosed sketches numbered 5 through 13 depict all 

section and face ventilation systems (typical for each 

system of advance and retreat mining) including all 

regulators, check curtains, wing curtains, 9000 CFM 

measuring points, and stoppings. 

NOTE: The number of intake, neutral and return air 

courses, as depicted on the typical face sketches 

may vary due to the number of entries or rooms 

being mined, mining conditions, or the ventilation 

requirements . 

. All plan sequences may be deviated from where 

conditions warrant a change conducive to good 

mining practices. However, ventilation as 

specified in the plan must be maintained. 

The respondent's assertion that the citation must be vacated 

because the ventilation plan sketch relied on by the inspector is 

not identical to the conditions he found is rejected. During 

closing arguments at the hearing, respondent acknowledged the 

fact that the ventilation plan does not cover ever contingency. 

While it may be true that the ventilation sketch relied on by the 

inspector depicts a five entry system, the respondent concedes 

that the "typical" sketches are intended as examples of 

ventilation, and that the conditions found by the inspector,. as 

noted in the sketch that he made during his inspection, were 

similar to those shown in the ventilation plan sketch. Further, 

the ventilation plan itself recognizes the fact that the number 

of intake entries and air courses as shown in the typical 

sketches may vary due to the number of entries being mined and 

other factors. Even though the plan provides for deviations in 

plan sequences, it specifically states that ventilation as 

specified in the plan must be maintained. I construe this to 

mean that all required ventilation control devices, such as 

intake regulators, must be in place as required by the overall 

plan, including any appropriate sketches incorporated as part of 

the plan. 

After careful consideration of all of the testimony and 

evidence adduced in this case, including the testimony of 

Inspector Montgomery and ventilation engineer Eslinger, which I 

find credible, I conclude and find that the petitioner has 

established by a preponderance of the evidence that the failure 

of the respondent to install a regulator at the cited location in 

question constituted a violation of its approved ventilation and 

methane and dust control plan as charged in the citation. A 

violation of the plan constitutes a violation of the cited 

218 
mandatory safety standard 30 C.F.R. § 75.316. Under all of these 

circumstances, the violation IS AFFIRMED. 

Size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to Continue in Business 

I conclude and find that the respondent is a large mine 

operator. I adopt as my finding the stipulation by the parties 

that the payment of the full civil penalty assessments for the 

violations in question will not adversely affect the respondent's 

ability to continue in business. 

History of Prior Violations 

Based on the stipulations by the parties, and taking into 

account the fact that the respondent is a large mine operator, 

and in the absence of any further evidence to the contrary, I 

cannot conclude that the respondent's compliance record is such 

as to warrant any additional increases in the civil penalties 

which I have assessed for the violations which have been 

affirmed. 

Gravity 

The inspector determined that an injury was unlikely and he 

found that the violation of section 75.316, was not significant 

and substantial. I agree with these determinations and I 

conclude and find that in the circumstances presented, the 

violation was nonserious. 

Negligence 

The inspector found a low degree of negligence with respect 

to the violation of section 75.316, and I agree with his finding. 

Good Faith Compliance 

The record reflects that the respondent immediately took 

corrective action by removing a block from the intake stopping to 

provide an intake regulator and the citation was abated within 40 

minutes of its issuance. I conclude and find that the respondent 

displayed rapid good faith abatement of the violation. 

Civil Penalty Assessments 

Section 104(al non-"S&S" Citation No. 3842906, April 17, 

1991, 30 C.F.R. § 75.1105. As noted earlier, the proposed 

settlement for this violation has been approved and the 

respondent has agreed to pay the $20 penalty assessment in full. 

219 
Section 104(a) non-"S&S" Citation No. 3536731, May 2, 1991, 

30 C.F.R. § 75.316. On the basis of the foregoing findings and 

conclusions affirming this violation, I conclude and find that 

the petitioner's proposed civil penalty assessment of $20 for the 

violation ·is reasonable and appropriate, and it is affirmed. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $20, in satisfaction of the settlement for 

Citation No. 3842906. The respondent IS FURTHER ORDERED to pay a 

civil penalty assessment in the amount of $20, for Citation 

No. 3536731, which I have affirmed. Payment shall be made to the 

petitioner (MSHA} within thirty (30) days of the date of this 

decision and order, and upon receipt of payment, this matter is 

dismissed. 

/fl~,dj(~ Administrative Law Judge 

Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Gregory s. Keltner, Esq., Zeigler Coal Company, 50 Jerome Lane, 

Fairview Heights, IL 62208 (Certified Mail). 

/ml 

220 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 8 1992 

GRAY STONE MINING, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CONTEST PROCEEDING 

Docket No. WEVA 91-1305-R 

Citation No. 9862026; 4/4/91 

Pokey No. 1 Mine 

46-05054 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On January 17, 1992, the Secretary filed a motion to dismiss 

the above proceeding on the ground that the Contestant has not 

contested the penalty proposed for the contested citations, but 

has voluntarily submitted full payment of the proposed penalty. 

Thus the citation and the penalty are a final order of the 

Commission pursuant to section 105(a) of the Act. 

Premises considered, the motion is GRANTED and this 

proceeding is DISMISSED. 

Distribution: 

,/") J . t 

1tAUZ 5 ,AJ!:J vv<J.t~U~ 

r:J James A. Broderick 

Administrative Law Judge 

Ora Dwaynne Tennant, Superintendent, Gray Stone Mining, Inc., 

Route 2, Box 284, Fairview, WV 26570 (Certified Mail) 

Douglas N. White, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

Street, N.W., Washington, DC 20005 (Certified Mail) 

/fb 

221 
.·'>, 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE QF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 8 1992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

.Petitioner 

v. 

ANDERSON EQUIPMENT COMPANY, 

Respondent 

DECISION 

Docket No. WEVA 90-283 

A. C. No. 46-01452-03501 BBS 

Arkwright No. 1 Mine 

Appearances: James V. Blair, Esq., u. s. Department of Labor, 

Office of the Solicitor, Arlington, Virginia, for 

the Petitioner; 

Hayes C. Stover, Esq., Kirkpatrick & Lockhart, 

Pittsburgh, Pennsylvania, for the Respondent. 

Before: Judge Maurer 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to section 105(d) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et seg., the "Act," charging the Anderson Equipment Company 

(Anderson) with a violation of the mandatory standard found at 

30 C.F.R. § 48.26(a) and proposing a civil penalty of $60 for 

that violation. The general issue before me is whether Anderson 

violated the cited standard and, if so, the appropriate civil 

penalty to be assessed in accordance with section llO(i) of the 

Act. 

Pursuant to notice, a hearing on the merits was held in this 

matter on August 20, 1991, in Morgantown, West Virginia. Post~ 

hearing briefs were filed by the parties on October 18, 1991. I 

have considered the entire record of proceedings and the 

contentions of the parties in making the following.decision. 

STIPULATIONS 

The parties have agreed to the following stipulations, which 

I accept: 

1. Anderson is subject to the provisions of the Act and the 

undersigned administrative law judge has jurisdiction over these 

proceedings. 

222 
2. Anderson is a small-sized operator under the Act and has 

committed no violations of the Act or the regulations promulgated 

thereunder in the 2 years prior to the inspection out of which 

this case arose. 

3. At the time of the October 12, 1989 inspection we are 

concerned with herein, Mr. Timothy Drake, an Anderson employee, 

had not been provided with comprehensive training as that term is 

defined in 30 C.F.R. § 48.26, and allegedly in violation of that 

mandatory standard. 

STATEMENT OF THE CASE 

Section 104{g) (1) Withdrawal Order No. 3309624 was issued on 

October 12, 1989, and states as follows: 

Tim W. Drake observed performing mechanic duties 

on a 530 end loader in the yard at the preparation 

plant has not received the requisite safety training as 

stipulated in Section 115 of the Act. Mr. Drake has 

been determined to be a newly employed experienced 

miner who has not received the required training under 

a MSHA approved plan. In the absence of such training 

Tim Drake, mechanic, is declared to be a hazard to 

himself and others and is to be immediately withdrawn 

from the mine until he has received the required 

training. [A] citation No. 3309625 for violation of 

30 C.F.R. 48.26{a) has been issued in conjunction with 

this Order. 

Citation No. 3309625, issued in conjunction with the above 

order and pursuant to section 104(a) of the Act, alleges a· 

violation of the regulatory standard at 30 C.F.R. § 48.26(a) and 

charges as follows: 

Tim W. Drake was observed performing mechanic 

duties on a 530 end loader in the yard area at the 

preparation plant. A discussion with Mr. Drake and 

Edward Wright, safety director for Anderson Equip. Co. 

revealed that Mr. Drake was not trained under a MSHA 

approved plan and was not provided with a Form 5000-23 

proof of training. 

A 104(g) (1) Order No. 3309624 has been issued in 

conjunction with this citation. 

The above-referenced order was not contested by the 

respondent and is not the subject· of the instant civil penalty 

proceeding. It is mentioned here for the sake of completeness 

only. The petitioner is seeking a civil penalty assessment for 

the alleged violation noted in the section 104(a) citation and 

not the section 104(g) (1) Order. · 

223 
FINDINGS OF FACT 

1. On October 12, 1989, Timothy Drake was employed by the 

Anderson Equipment Company. That day, he was working on a frontend loader at the Arkwright Tipple of the Consolidation Coal 

Company, which is located at Granville, West Virginia. 

2. MSHA Inspector George H. Phillips also conducted an 

inspection at the Consolidation Coal Company facility at 

Granville, West Virginia on October 12, 1989. 

3. Inspector Phillips approached Mr. Drake and questioned 

him concerning his training. Drake informed him that the coal 

company had provided hazard training and his company (Anderson) 

had provided him with other safety-related trairiing, but the 

inspector determined that this "other" training was not. 

comprehensive training pursuant to an MSHA-approved training 

plan, and he did not have the Form 5000-23 as proof of training. 

4. Anderson concedes that Drake had not received 

comprehensive training under an MSHA-approved plan pursuant to 

30 C.F.R. § 48.26(a) as of October 12, 1989, nor was he in -

possession of a Form 5000-23. 

5. Government Exhibit No. 1 demonstrates to my satisfaction 

that Mr. Drake frequently worked at various mine sites, sometimes 

on an extended basis, including the Consolidation Coal Company 

facilities at Granville, West Virginia, be it the Arkwright 

Tipple or the Kemfort Tipple. For example, from March 9, 1989 

through March 13, 1989, Mr. Drake worked at the Allied Mining 

facility at Pisgah, West Virginia, for 6 consecutive work days. 

And from July 27, 1989 through August 3, 1989, he worked at the 

Consolidation Coal Company facility at Granville, West Virginia, 

for 6 consecutive work days. During a 14 week period from 

July 23, 1989 through October 28, 1989, Mr. Drake worked at the 

Consolidation Coal Company facility at Granville, West Virginia, 

at least 1 day a week for 12 of those weeks. And in August 1989 

alone, he worked at Consol's Granville facility on 12 separate 

days. 

6. Mr. Drake credibly testified that his work place was 

usually physically located in a segregated repair area, away from 

the mining operations themselves, but he conceded that was not 

always possible. 

7. I also accept as credible the inspector's opinion based 

on 19 1/2 years experience as a coal mine safety inspector that 

Mr. Drake was regularly and frequently exposed to mine hazards 

generally in the course of his employment as a maintenance worker 

for Anderson at the various mine sites enumerated in Government 

Exhibit No. 1. 

224 
DISCUSSION WITH FURTHER FINDINGS 

Respondent denies that training under 30 C.F.R. § 48.26(a) 

was required in Mr. Drake's case and states that training under 

30 c.F.R. § 48.31(a) was supplied instead and was the appropriate 

training in their opinion. 

The question is whether Drake is a "miner" as defined in 

30 C.F.R. § 48.22{a) (1) or (a) (2). 

If he is an "(a) (1) miner," he is required to have 

comprehensive training under section 48.26. If he is an 

"(a) (2) miner," he is required to have only hazard training under 

section 48.31, which the Secretary concedes he had received. 

Put another way, the question is was Drake a "maintenance or 

service worker contracted by the operator to work at the mine for 

frequent or extended periods" (an (a) {l) miner) or was he 

excluded from (a) (1) coverage because he was "(iii) any person 

covered under paragraph (a) (2) of this section," i.e., an 

"occasional short-term maintenance or service worker contracted 

by the operator." 

Program Policy Letter No. P89-III-13-entitled Independent 

Contractor Training Policy; 30 C.F.R. Part 48 (Respondent's 

Exhibit No. 3) states that: 

Independent contractors regularly exposed to mine 

hazards, or who are maintenance or service workers 

contracted by the operator to work at the mine for 

frequent or extended periods, must receive 

comprehensive training. "Regularly exposed" means 

either frequent exposure, that is exposure to hazards 

at the mine on a frequent rather than consecutive day 

basis (a pattern of recurring exposure) or extended 

exposure of 5 consecutive workdays, or both. 

Also, the MSHA-Program Policy Manual, Volume III, Part 48 

(Respondent's Exhibit No. 2) at page 25 states: 

If the job assignment of a service or maintenance 

worker exceeds 5 consecutive working days at a 

particular mine, and they are exposed to mining 

hazards, comprehensive training must be given ...• 

Page 13-14 of that same manual further recites: 

If the individual • . . is a maintenance or 

service worker employed or contracted by the operator 

for frequent periods or on a regular basis and is 

exposed to mine hazards, the worker must be given 

225 
comprehensive training. 

recognizable pattern of 

Exposure to hazards for 

frequent exposure. 

Regular exposure is a 

exposure on a recurring basis. 

more than 5 consecutive days is 

I find and conclude that Mr. Drake was as of the date of the 

citation at bar, October 12, 1989, a fuaintenance worker employed 

by Anderson, and contracted to work at various mine sites on both 

a frequent and extended basis, where he was regularly exposed to 

the hazards generally associated with both mining and the repair 

of heavy equipment. As such, he was required to have 

comprehensive training, in accordance with 30 C.F.R. § 48.26{a). 

He did not, and therefore, a violation of the cited standard 

existed at that time, as charged. 

The Secretary also urges that I find this violation to be 

"significant and substantial" (S&S). However, the inspector 

himself stated that he did not doubt that the man was trained, 

but it just was not training approved by MSHA or pursuant to an 

MSHA-approved plan (Tr. 22). Under the circumstances, I find the 

record to be totally lacking in support for an "S&S" finding. 

Accordingly, Citation No. 3309625 will be affirmed as a "non-S&S" 

citation. 

Having considered all the criteria for a civil penalty in 

section llO{i) of the Act, I find that a penalty of $50 is 

appropriate for the violation found herein. 

ORDER 

WHEREFORE, IT IS ORDERED that: 

1. Citation No. 3309625 is modified to delete the 

"significant and substantial" finding and as so modified, 

affirmed. 

2. Respondent shall pay the civil penalty of $50 within 

30 days of this decision. 

Law Judge 

Distribution: 

James V. Blai:, Esq., Office of the Solicitor, U.S. Department of 

~=~~f' 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Hayes C. St~ver, Esq., Kirkpatrick & Lockhart, 1500 Oliver 

Building, Pittsburgh, PA 15222 (Certified Mail) 

dcp 

226 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 8 1992 

BLUE DIAMOND COAL COMPANY, 

Contestant 

CONTEST PROCEEDINGS 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. KENT 91-993-R 

KENT 91-994-R 

Citation No. 9859071; 4/4/91 

9859072; 4/4/91 

Middle Taggart Mine 

15-15022 

Docket No. KENT 91-995-R 

through KENT 91-1000-R 

Citation No. 9858544; 4/4/91 

through 9858549; 4/4/91 

Scotia Mine 

15-02055 

ORDER APPROVING SE'rl'LEMENT AGREEMENT 

AND DISMISSING CONTEST PROCEEDINGS 

Before: Judge Broderick 

On January 17, 1992, the Secretary and the mine operator 

submitted a joint settlement agreement covering the violations 

charged in the above contested citations. The Secretary has 

agreed to reduce the total proposed penalty assessment for the 

eight violations from $10,800 to $8,740. The operator agrees to 

withdraw its notices of contest and does not dispute the amount 

of the penalties as reduced. The operator represents that it is 

now subject to Chapter 11 bankruptcy proceedings, and the 

Secretary will not enforce its claim for penalties except through 

the bankruptcy court. The agreement shall not be deemed an 

admission for any purpose except for civil matters arising under 

the Mine Act. It will not be used in any criminal or private 

civil litigation, but the Secretary is not precluded from 

including the citations in the operator's history of violations 

and considering them in proposing civil penalties under the Act. 

I have considered the motion in the light of the criteria in 

section llO(i) of the Act, and conclude that it should be 

approved. 

227 
Accordingly, IT IS ORDERED: 

1. The settlement agreement submitted by the 

parties is APPROVED. 

2. The above contest proceedings are DISMISSED. 

7 

-,?4</vU.?:;_ ,/~fl:J":Ccl.et-L-~1.__ /1 James A. Broderick 

(./ Administrative Law Judge 

Distribution: 

Randall Scott May, Esq., Barret, Haynes, May, carter & Roark, 

P.S.C., P.O. Box 1017, Hazard, KY 41701 (Certified Mail) 

Douglas N. White, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

/fb 

228 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

LONNIE DARRELL ROSS, 

Complainant 

v. 

SHAMROCK COAL COMPANY, 

INC., 

Respondent 

CHARLES E. GILBERT, 

Complainant 

v. 

SHAMROCK COAL COMPANY, 

INC., 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 81992 · 

DISCRIMINATION PROCEEDINGS 

Docket No. KENT 91-76-D 

BARB CD 90-40 

No. 10 Mine 

Docket No. KENT 91-77-D 

BARB CD 90-41 

No. 10 Mine 

SUPPLEMENTAL DECISION AND FINAL ORDER 

Before: Judge Fauver 

These consolidated proceedings were brought against Shamrock 

Coal Company, Inc., alleging that Complainants were wrongfully 

discharged for protected activities, i.e., making safety 

complaints, in violation of § 105(c) (1) of the Federal Mine Safety 

Act of 1977, 30 u.s.c. § 801 et~ 

On September 18, 1991, a de_cision on liability was entered 

finding that Respondent had discriminated against Complainants on 

July 31, 1990, by discharging them in violation of § 105(c) (1) of 

the act. 

Further proceedings on monetary relief through conference 

calls with the judge and attorneys for the parties, and the 

exchange of documents and positions between the attorneys, have 

resulted in Complainants' amended proposed order for monetary 

relief, filed on January 6, 1992. There has been no further reply 

from Respondent. 

FINDINGS AND CONCLUSIONS 

1. Charles E. Gilbert was employed by Respondent at an 

hourly rate of $14.49, working a 40-hour week with an average of 

4.3 hours overtime per week. His Christmas bonus was ordinarily 

229 
$700.00. He is entitled to back pay of $38,027.36. The employer 

may take a credit for a two week suspension, for $1,159.20. 

Gilbert is therefore entitled to net back pay of $35,708.96, plus 

interest of $2,266.91. 

2. Because of the discharge in· violation of§ 105(c) (1) of 

the Act, and financial constraints caused by the discharge, Gilbert 

withdrew $39,374.27 from his retirement (profit sharing) fund with 

Respondent·. Due to this early withdrawal he had to pay $12, 276. 00 

in taxes and penalties. The penalty portion is $3,621.00, which 

Respondent shall be ordered to pay as reimbursement. 

3. Gilbert also suffered a lapse of health insurance that 

would have paid medical bills but for his wrongful discharge. The 

relevant bills are for $4 78 .. 90, which Respondent shall be ordered 

to pay as reimbursement. 

4. Gilbert is entitled to total individual damages as 

follows: (A) Back pay of $35,708.96 with lawful payroll deductions 

for withholdings of Social Security, ,$2, 82 o. 41, federal taxes, 

$3,692.00, and Kentucky taxes, $1,895.92, i.e., net back pay of 

$28,459.83; plus (B) interest of $2,266.91, and plus (C) 

reimbursements for medical bills of $478.90 and a tax penalty of 

$3,621.00, for a net total of $34,826.64. 

5. Lonnie Darrell Ross was employed by Respondent at an 

hourly rate of $15.43, working a 40-hour week with an average of 10 

hours overtime per week. His Christmas bonus was ordinarily 

$715.00. He is entitled to back pay of $48,242~20. The employer 

may take a credit for a two week suspension, for $1,234.40, and for 

$4,997.20 in outside earnings by Ross. Ross is therefore entitled 

to net back pay of $42,010.60 plus interest of $2,607.65. 

6. Ross is also entitled to recover $600. oo for medical 

bills that would have been paid by medical insurance had he not 

been wrongfully discharged. 

7. Because of the discharge in violation of § 105(c) (1) of 

the Act, and financial constraints caused by the discharge, Ross 

withdrew $51,173.89 from his retirement (profit sharing) fund with 

Respondent. Due to this early withdrawal, he had to pay a penalty 

of $5,117.38, which Respondent shall be ordered to pay as 

reimbursement. 

8. Ross is entitled to total individual damages as follows: 

(A) Back pay of $42, 010. 60 with lawful payroll deductions for 

withholdings o~ Social Security, $3,596.10, federal. taxes, 

$5,356.00, and Kentucky taxes, $2,501.20, i.e., net back pay of 

$30,557.30, plus (B) interest of $2,607.65, and plus (C) 

reimbursements for medical bills of $600.00 and a tax penalty of 

$5,117.38, for a net total of $38,882.33. 

230 
9. Complainants are jointly entitled to litigation costs of 

$2, 515. 63 and a reasonable attorney fee; which is awarded at 

$150.00 per hour for 197 hours (i.e., $29,850.00). The attorney 

fee includes all office overhead.expenses. 

ORDER 

1. Within 10 days of the date of this order, Respondent 

shall pay Charl_es E. Gilbert a net of $34,826.64, as computed 

above, and shall make payments to the appropriate federal and state 

tax agencies of the withholdings specified above. 

2. Within 10 days of the date of this order, Respondent 

shall pay Lonnie Darrell Ross a net of $38, 882. 33, as computed 

above, and shall make payments to the appropriate federal and state 

tax agencies of the withholdings specified above. 

3. Respondent shall pay the Compla.inants' litigation costs 

including an attorney fee by a check for $32, 375. 63 made payable to 

"Phyllis L. Robinson." Upon cashing such check, Attorney Robinson 

shall immediately pay a refund to Complainants for any of the 

litigation costs or attorney fee they have previously paid to her. 

4. After the above payments are made, Complainants shall 

promptly file a Satisfaction of Order stating the dates and amounts 

of the payments. 

5. The decision of September 18, 1991, and this supplemental 

decision and order constitute the judge's final disposition of 

these proceedings. 

Distribution: 

/))~ --=-r-~ William Fauver 

Administrative Law Judge 

Phyllis L. Robinson, Esq., P. O. Box 952, Hyden, KY 

(Certified Mail) 

Neville Smith, Esq., P. o. Box 447, Manchester, KY 

(Certified Mail) 

/fas 

231 

41749 

40962 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 3 0 1992 

ELMER RICHARD COUCH, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

SHAMROCK COAL COMPANY, 

Respondent 

Docket No. KENT 91-1351-D 

BARB CD 91-25 

ORDER OF- DISMISSAL 

Before: Judge Maurer 

Having considered the joint motion to approve their 

settlement agreement and dismiss this action with prejudice and 

seeing that this matter has been settled by the parties, it is 

hereby ORDERED that the complainant may withdraw his complaint 

and his action is hereby DISMISSED with prejudice, each party is 

to bear his own attorneys' fees and costs. 

Law Judge 

Distribution: 

Phyllis L. Robinson, Esq., P. o. Box 952, Hyden, KY 41749 

(Certified Mail) 

Neville Smith, Esq., Smith & Smith, 110 Lawyer Street, 

P. o. Box 447, Manchester, KY 40962 (Certified Mail) 

dcp 

232 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMiNISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 31 1992 

SECRETARY OF LABOR, 

MINE SAFETY ANO HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

THOMAS CATES, Employed by 

GREEN RIVER COAL COMPANY, 

INCORPORATED, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

STEPHEN WHITLEDGE, Employed by 

GREEN RIVER COAL COMPANY, 

INCORPORATED, 

-Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 91-303 

A.C. No. 15-13469-03774 A 

No. 9 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 91-352 

A.C. No. 15-13469-03776 A 

No. 9 Mine 

DECISION 

Appearances: 

Before: 

Gretchen Lucken, Esq., Office of the Solicitor, 

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

the Petitioner; 

Teresa M. Arthur, Esq., Paxton & Kusch, P.S.C., 

Central City, Kentucky, for the Respondents. 

Judge Melick 

These consolidated cases are before me upon the petitions 

for civil penalties filed by the Secretary of Labor, pursuant to 

section llO(c) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. 801 et seq., the "Act" charging Thomas Cates and 

Steven Whitledge as agents of a corporate mine operator, 

Green River Coal Company, Incorporated, (Green River), with 

knowingly authorizing, ordering, or carrying out a violation by 

the named mine operator of the mandatory standard at 30 C.F.R. 

§ 75.518. I 

1; Section llO(c) of the Act reads as follows: 

"Whenever a corporate operator violates a mandatory health or 

safety standard or knowingly violates or fails or refuses to comply 

with any order issued under this Act or any order incorporated in 

a final decision issued under this Act, except an order 

233 
Neither Cates nor Whitledge dispute that they were both 

agents of the cited corporate mine operator nor do they dispute 

that a violation of the cited standard did in fact occur as 

alleged in section 104(d)(l) Order No. 3421152. They both 

dispute however, that they "knowingly authorized, ordered, or 

carried out" the aforesaid violation of the mine operator. The 

issue before me then is whether either Cates or Whitledge, or 

both, acting as agents of t~e .corporate mine operator "knowingly 

authorized, ordering, or carried out" the violation charged in 

Order No. 3421152. If it is determined that either Cates or 

Whitledge, or both, acted in such manner then a civil penalty 

must also correspondingly be assessed considering the appropriate 

criteria under section llO(i) of the Act. 

Cates and Whitledge are c-harged with knowingly authorizing, 

ordering, or· carrying out the violation charged in Order 

No. 3421152. That order reads as follows: 

The 1.6 hp 480 volt AC pump located in the return 

entry of 2C headings was not provided with proper 

overload or short-circuit protection in that the pump 

was receiving power from a 225 amp breaker with 

instantaneous setting of 300 amps, maximum for the pump 

overload is .6 amp and maximum for short-circuit 

protection is 18.2 amps. The No. 10 awg. 5 conductor 

cable on the pump was not protected either. The 

inspection of this pump (weekly) indicated no flight 

[sic] box which contains the protective [illegible 

word] on dates 1-12-90, 1-20-90 and 1-27-90 and was 

countersigned by Tommy Cates (mine foreman) on 1-12-90 

and 1-20-90 and apparently ~ittle or no effort was made 

to correct this condition. I 

fn. 1 (continued) 

incorporated in a decision issued under subsection (a) or section 

105(c), any director, officer, or agent of such corporation who 

knowingly authorized, ordered, or carried out such violation, 

failure, or refusal shall be subject to the same civil penalties, 

fines, and imprisonment that may be imposed upon a person under 

subsection (a) and (d)." 

2 ; Signif-icant allegations in the order were admitted by the 

issuing inspector at hearing to be erroneous. According to the 

allegations, prior weekly inspections of the cited 480-volt AC pump 

in the return entry of the 2C heading, had been reported in 

previous weekly inspection reports on January 12, January 20, and 

January 27, 1990, as not having a "flight" [sic] box and concluded 

with the statement that "apparently little or no effort was made to 

correct this condition." As the undisputed evidence revealed at 

hearing and as the inspector admitted at hearing however, the 

particular pump at issue had never previously been reported in the 

234 
The cited standard provides as follows: 

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. Three-phase 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. 

Since section llO(c) of the Act predicates individual 

liability of a corporate agent upon the finding of a violation of 

a mandatory health or safety standard by the corporate operator, 

I am strictly limited in determining whether there was individual 

liability under section llO(c), to evaluation of only the precise 

allegations in the order itself and not to allegations of other 

violations that may have been made elsewhere in the petitions for 

civil penalty or at hearing. 

The Commission defined the term "knowingly," in Kenny 

Richardson v. Secretary of Labor, 3 FMSHRC 8 (1981), 689 F.2d 632 

(6th Cir. 1982), cert denied, 461 U.S. 928 (1983) as follows: 

"Knowingly," as used in the Act, does not have any 

meaning of bad faith or evil purpose or criminal 

intent. Its meaning is rather that used in contract 

law, where it means knowing or having reason to know. 

A person has reason to know when he has such 

information as would lead a person exercising 

reasonable care to acquire knowledge of the fact in 

question or to infer its existence . . . . We believe 

this interpretation is consistent with both the 

statutory language and the remedial intent of the Coal 

Act. If a person in a position to protect employee 

safety and health fails to act on the basis of 

information that gives him knowledge or reason to know 

of the existence of a violative condition, he has acted 

knowingly and in a manner contrary to the remedial 

nature of the statute. 3 FMSHRC 16. 

There is no direct evidence in this case that either Cates 

or Whitledge "knowingly authorized, ordered,. or carried out" the 

specific violation alleged in the order at bar. Moreover, there 

is insufficient circumstantial evidence that either had any 

fn. 2 (continued) 

weekly inspection books as having no "flight" [sic] box, and it was 

acknowledged at hearing that MSHA did not inspect the mine to 

determine whether indeed those pumps that had previously been 

reported in the weekly inspection books as not having "flight" 

[sic] boxes had in fact been repaired. 

235 
knowledge or reason to know of the violative condition. While 

the condition was cit~d and presumably discovered at 10:00 a.m., 

on January 31, 1990, by Inspector Haile of the Federal Mine 

Safety and Health Administration (MSHA), there is no evidence as 

to how long that condition had existed, no evidence that either 

of the Respondent's had any obligation or duty to have inspected 

such equipment or to have read the reports of weekly electrical 

inspections or that they were even in a position in which such a 

condition would ordinarily have been reported to them. Moreover, 

at the time of the last required electrical inspection (prior to 

January 31, 1991), reported on January 27, 1991, not only was no 

defective condition reported on the cited pump it was noted in 

the examination book as being "OK." In contrast, several other 

pumps were reported to have no Flygt box on that date. Thus, 

even had Cates or Whitledge reviewed the most recent report of 

examination of electrical equipment on January 27, 1990, they 

would not have been placed on notice of any defective condition 

regarding the pump now cited. 

The Secretary nevertheless argues that it may be inferred 

from the existence of prior reports in the examination book of 

defects in other electrical equipment, most notably in those 

reports dated January 12, January 13, and January 20, -- those on 

which Mr. Cates' signature appears at the bottom of the page, 

that at least Cates should have known on January 31, 1990, of the 

violative condition of the plimp in the return of the 2C headings. 

The Secretary also seems to be arguing that Mr. Cates should also 

have known of the violative condition of the pump in the return 

of the 2C heading on January 31, 1990, for the reason that there 

was no indication in the reports of examination of electrical 

equipment for prior dates, that any of the violative conditions 

on other pumps were corrected. 

The Secretary acknowledges, however, that no statute or 

regulation requires that such corrections be noted in the 

examination books and that there is no requirement that any of 

the entries be countersigned. Mr. Cates also testified without 

. contradiction that he reviewed the examination books only for the 

purpose of verifying that each of the pumps had been examined at 

least weekly and that as a non-electrician he did not then 

understand the significance of the wording "no f~ight box" [sic] 

periodically reported in the examination books. I It is also 

noted that those conditions were ordinarily made in the column 

designated as "equipment examined and/or tested" and not under 

the column marked "dangerous conditions." 

3; The referenced junction box is correctly designated as a 

Flygt box -- a brand name apparently taken from the name of its 

manufacturer, Flygt Corporation. (See Exhibit G-3). 

236 
Moreover, the Secretary concedes that she does not know in 

fact whether the conditions cited in the examination books i.e., 

the absence of Flygt boxes on several pumps, had in fact beencorrected or merely had not been noted in the record books as 

having been corrected. The Secretary also acknowledged that even 

though she was aware of these purportedly dangerous conditions 

(characterized by the issuing inspector as "significant and 

substantial" and serious violations), she did not verify whether 

indeed such conditions continued to exist in the mine, even 

though the inspector was at that time on the mine premises. 

The evidence against Mr. Whitledge is even more tenuous. 

The Secretary argues that it would be reasonable to infer that 

Whitledge knew or had reason to know of the cited violation on 

the basis that he was the maintenance supervisor for the No. 9 

Mine. According to Whitledge's undisputed testimony, however, it 

is clear that not only did he not have the responsibility of 

reviewing the weekly reports of examinations of electrical 

equipment regaroing the cited pump (which ·the Secretary concedes 

was not required to be done by anyone), but that the pumpmen who 

were all electricians themselves and who performed the weekly 

examinations of electrical equipment, were responsible for the 

repairs and that those pumpmen reported directly to the 

respective mine foreman for their particular shift. 

Clearly, there is insufficient connection between the 

evidentiary facts and the ultimate facts sought by the Secretary 

to be inferred. See Secretary v. Garden Creek Pocahontas Co., 

11 FMSHRC 2148 (1989); Secretary v. Mid-Continent Resources, 

6 FMSHRC 1132 (1984). Under the circumstances, the Secretary has 

failed to sustain her burden of proving by a preponderance of the 

evidence that either Cates or Whitledge knew or had reason to 

know of the violation charged in Order No. 3421152. In reaching 

this conclusion, I have not disregarded the out-of-court 

statements by pumpmen Richard Walker·and Michael Cates, 

suggesting that they had themselves operated pumps without Flygt 

boxes. I have also considered Walker's statement that he had 

reported on or about January 13, 1990, to Steve Whitledge that 

the "manual disconnects and/or Flygt box had been removed.from 

the pump" which was in reference to another pump and not the one 

cited herein. I also note that Whitledge denied at hearing that 

Walker had ever informed him of the alleged absent Flygt box. 

This testimony directly contradicts Walker's out-of-court 

statement. I give Whitledge's testimony (under oath and subject 

to cross-examination) the greater weight. I can give but little 

weight to such purported out-of-court statements as those given 

by Walker and Cates where the witness is unavailable to explain 

his alleged statements under oath and under the scrutiny of 

cross-examination. 

237 
ORDER 

The captioned cases are hereb dismissed. 

Distribution: 

Gretchen Lucken, Esq., Office of 

of Labor, 4015 Wilson Boulevard, 

(Certified Mail) 

elick 

Admin strativ Law Judge 

the ~licitor, U.S. Department 

Room 403, Arlington, VA 22203 

B. R. Paxton, Esq., Paxton & Kusch, P.s.c., 213 E. Broad Street, 

P.O. Box 655, Central City, KY 42330 (Certified Mail) 

Mr. Thomas Cates, Green River Coal Company, P.O. Box 1249, 

Henderson, KY 42420 (Certified Mail) 

Mr. Stephen Whitledge, Green River Coal Company, P.O. Box 1249, 

Henderson, KY 42420 (Certified Mail) 

/fb 

238 
ADMINISTRATIVE LAW JUDGE ORDERS 

IN RE: 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG Pl~E 

FALLS CHURCH, VIRGINIA 22041 

'JAN 171992 

CONTESTS OF RESPIRABLE DUST 

SAMPLE ALTERATION CITATIONS 

MASTER DOCKET NO. 91-1 

ORDER GRANTING IN PART AND DENYING 

IN PART 

SECRETARY'S MOTION FOR PROTECTIVE ORDER 

On December 23, 1991, the Secretary of Labor filed a Motion 

for Protective Order to prohibit the taking of depositions of the 

Assistant Secretary of Labor and the former Administrator for Coal 

Mine Safety and Health. The motion was supported by a memorandum 

of law, and accompanied by an affidavit.of Assistant Secretary of 

Labor William J. Tattersall. On January 7, 1992, Contestants 

represented by the law · firms of Crowell & Moring, Buchanan 

Ingersoll, and Jackson.& Kelly, filed an opposition to the motion. 

On January 14, 1992, the Secretary filed a reply to Contestants' 

opposition to the Secretary's motion. On January 16, 1992, 

Contestants represented by Williams & Connolly filed a motion to 

join the Opposition filed by the three law firms named above for 

the reasons set forth in the Opposition. 

The Contestants notified counsel for the Secretary by letter 

of December 4, 1991, that they wished to depose William Tattersall, 

Leighton Farley, Jerry Spicer, Edward Hugler, Dennis· Ryan and 

Willard Querry, and requested copies of telephone logs, diary 

entries, personal notes, calendars, memoranda and other documents 

dated between February 1, 1989 and April 4, 1991, relating to AWC 

issues., Counsel for the Secretary replied by letter dated December 

16, 1991. He agreed to provide such of the requested documents 

which are not privileged and to make Hugler, Farley, Ryan and 

Querry available for depositions. He stated that a motion for a 

protective order would be filed to prohibit the taking of the 

depositions of Tattersall and Spicer. 

I 

Contestants state that Assistant Secretary Tattersall made the 

crucial decisions as to whether and when to issue the citations 

involved in these proceedings. Administrator Spicer was said to 

have been actively involved in these decisions as well as other 

relevant agency actions prior to the issuance of the citations. 

Tattersall participated in ten meetings between November, 1989 and 

March, 1991, "with other agency officials including Mr. Spicer" 

concerning dust sampling enforcement actions. 

239 
Contestants argue that the decision to void samples but not 

issue citations made in about March, 1990, and the decision not to 

issue an information notice to mine operators raise substantive 

issues "bearing on reasonable promptness and on other issues as 

well." Tattersall is said to be the primary.source of information 

as to ·what matters were .considered in the course of agency 

deliberations concerning these decisions. The agency decisions to 

void samples prior to March 14, 1990, and to void without citations 

after March 14, 1990, and finally to issue citations on April, 

1991, are not explained. Assistant Secretary Tattersall should be 

required to explain these decisions "so that we may obtain an 

understanding.of the citations and prepare appropriate defenses." 

Finally, Tattersall must be made available for questioning 

about his public statements concerning AWC' s which differ in 

significant respects from the deposition testimony of his 

subordinates. Contestants emphasize the extraordinary nature of 

the enforcement action represented by these cases - their size and 

scope involving as they do virtually the entire coal mining 

industry; the degree of the personal involvement of the Secretary 

and Assistant Secretary in issuing press releases, holding press 

conferences, testifying before Congressional Committees, etc., as 

distinguishing this case from those relied upon by the Secretary's 

counsel. 

II 

The Secretary argues that the Federal Courts "routinely" 

prohibit the taking of depositions from high-level government 

officials "especially where relevant information is available from 

lower-level agency personnel." The reasons for the rule are (1) 

the privilege attaching to agency deliberative processes, and (2) 

the disruption of the government's primary function which would 

result from permitting such depositions. 

The rule applies not only in the case where an administrative 

record is involved but also where "the proposed inquiry relates to 

the exercise of statutory discretion." 

The rule applies not only to cabinet members and heads of 

executive agencies but also "to lower-level but relatively highly 

placed decisionmakers within an agency." 

Contestants have alternative sources for obtaining the 

requested information; in fact they have a "plethora of other 

avenues for obtaining any conceivably relevant information." 

Tattersall and Spicer made the ultimate decisions to issue the 

citations involved here based on facts and recommendations from 

lower-level agency personnel who have already been deposed. 

Neither "has any specific knowledge of relevant facts which were 

not obtained in this manner." 

240 
III 

It is important to keep in mind the nature of the present 

proceedings before the Review Commission. The forty seven hundred 

citations issued by the Secretary have been contested. Therefore, 

the citations are not final administrative action, and become final 

only when and if they are affirmed by the Commission. The 

penal ties assessed by the Secretary, because they have been 

contested, are in the nature of proposals to the Commission to 

assess appropriate penalties for any violations charged in 

citations which are affirmed. For these reasons, the cases cited 

by both parties, such as citizens to Preserve Overton Park v. 

Volpe, 401 U.S. 402 (1971) and Community for Creative Non-Violence 

v. Lujan, 908 F.2d 992 (D.C. Cir. 1990), holding that agency 

decisionmakers may be deposed only in cases where no administrative 

findings were made and a deposition is the only way to provide a 

record adeqUate for judicial review, are of limited precedential 

value, and not controlling. The Secretary in these proceedings 

does not make administrative findings •. The findings and decisions 

will be made by the Review Commission after an adversary proceeding 

in which the Secretary has the burden of establishing the propriety 

of the citations and the appropriateness of the proposed penalties. 

In the course of that proceeding, a record will be made which we 

trust will be adeqUate for judicial review. 

IV 

The public statements of the Secretary and Assistant 

Secretary, whether to the Press or to Congress, are not matters 

before the Commission, and I will not consider them in deciding 

whether Assistant Secretary Tattersall or Administrator Spicer are 

subject to deposition. In an analogous situation, it is not 

uncommon for the Attorney General or other prosecuting authority to 

publicly announce criminal indictments. It could scarcely be 

maintained that this should subject these law enforcement officials 

to oral depositions in the cases covered by the indictments. 

v 

The general rule followed in the Federal Courts is that highlevel executive department officials may not be reqUired to give 

oral testimony by deposition or at trial except in extraordinary 

circumstances. Simplex Time Recorder Co. v. Secretary of Labor. 

766 F.2d 575 (D.C. Cir. 1985); Wirtz v. Local 30. International u. 

of Operating Engineers. 34 F.R.D. 13 (S.D.N.Y. 1963); United States 

v. Northside Realty Associates. 324 F. Supp. 287 (N.D. Ga. 1971). 

Extraordinary circumstances may be established where the executive 

sought to be deposed has relevant information not available from 

any other source. Sweeny v. Bond. 669 F.2d 542 (8th Cir. 1982), 

cert. denied, 459 U.S. 878 (1982); Community Fed. Sav. & Loan v. 

Fed. Home Loan Bank Bd.. 96 F.R.D. 619 (O.o.c. 1983); A1Der. 

Broadcasting Companies v. U.S. Info_. Agency. 599 F. Supp. 765 

241 
(D.D.C. 1984). On the other hand, where the agency has or is 

willing to respond by answering written interrogatories, 

furnishing documents and making lower-level officials available for 

deposition, there is no justification for requiring the testimony 

of an agency head or high-level agency official. Sweeny v. Bond, 

669 F.2d at 546; Kyle Engineering Co. v. Kleppe, 600 F.2d 226 (9th 

Cir 1919); Wirtz v. Local 30, 34 F.R.D. at 14. The more senior the 

official to be deposed, the stronger the showing which must be made 

to require his testimony. Community Fed. sav. & Loan, 96 F.R.D. at 

621. 

VI 

Contestants argue that because Assistant Secretary Tattersall 

made "the crucial decisions whether and when to issue" the 

contested citations, he should be required to testify as to "the 

basis for the charges. 11 This can hardly be considered an 

extraordinary circumstance permitting him to be called for 

deposition. See Simplex Time Recorder· Co., 766 F.2d at 586. Nor 

can the fact that "he participated in 10 meetings between November 

1989 and March 1991 •.. concerning various aspects of the dust 

sampling enforcement actions." In fact since other agency 

officials were present at the same meetings, this would argue 

against the necessity for deposing the Assistant Secretary. 

Section 104(a) of the Mine Act (30 u.s.c. § 814(a)) requires the 

Secretary or her authorized representative to issue a citation to 

a mine operator if upon inspection or investigation she believes 

that the operator has violated any mandatory heal th or safety 

standard. Absent some showing of bad faith or utterly arbitrary 

action, why the Secretary or the Assistant Secretary decided to 

issue the citations is not relevant to this proceeding. As I 

stated earlier, she is required to prove the basis for the 

citations in this proceeding before an independent adjudicatory 

agency. The evidence presented in such a proceeding will establish 

whether there was a proper basis for the citations. The taking of 

the deposition of a member of the Cabinet or the head of an 

executive department "in order to probe the mind of the official to 

determine why he exercised his discretion as he did in regard to a 

particular matter" is improper, Northside Realty Associates, 324 F. 

Supp at 293, and in any event not relevant to the question whether 

an objective basis existed for the contested citations. 

VII 

The most cogent reason advanced for the proposed depositions 

is the alleged need to inquire into the basis for the time lag 

between the violations and the issuance of citations. This may be 

an issue because section 104(a) of the Act mandates the issuance of 

a citation "with reasonable promptness" when the Secretary believes 

that a violation has occurred. The Contestants have asserted but 

have not shown that Assistant Secretary Tattersall is the sole 

source of factual information concerning the timing of the issuance 

242 
of citations~ In fact they have had the opportunity to propound 

interrogatories and to depose lower-level off_icials for such 

factual information. The Assistant Secretary made the ultimate 

decisions to issue the citations but, according to his affidavit, 

he relied upon facts and recommendations made byJower-level agency 

personnel and does not have "any specific knowledge of facts 

related to the samples or development of the evidence supporting 

the citations which was not communicated to me by such lower-level 

persons." Given the other sources of discovery available to 

contestants, including the written discovery which has been had, 

the depositions already taken, and those which the Secretary has 

agreed to provide, the contestants have the opportunity to discover 

the factual basis for the citations and for the timing of their 

issuance without deposing Assistant Secretary Tattersall. 

I conclude that Contestants have not established extraordinary 

circumstances which would justify compelling the testimony of 

Assistant Secretary Tattersall. 

VIII 

The Assistant Secretary is, of course, a Presidential 

appointee and a member of the sub-cabinet. He is the head of the 

Mine Safety and Health Administration. He is clearly a high-level 

government official and "precisely the type of individual that 

governmental immunity is intended to protect." United States v. 

Miracle Recreation Equipment Co., 118 F.R.D. 100, 105 (S.D. Iowa 

1987). As the Secretary noted in her motion, a major reason for 

the rule prohibiting the taking of depositions from high-level 

officials is the disruption which would result to the government's 

important activities, and the higher the level the official, the 

greater the disruption. Jerry L. Spicer, who was Administrator for 

Coal Mine Safety and Health during the time the alleged violations 

occurred and the contested citations were issued, is a lower-level 

official than the Assistant Secretary. Moreover, he is now 

retired. Therefore, no disruption to the government's functions 

would result from subjecting him to a deposition. He may have 

factual information concerning the decision to void samples but not 

issue citations in March 1990 and the decision not to issue an 

informational notice which may be relevant to the timeliness of the 

citations. The burden on the Contestants to justify taking 

Mr. Spicer's deposition is considerably lower than the burden to 

justify taking the Assistant Secretary's. I conclude that 

Contestants have met that burden, and have the right to take 

Mr. Spicer's deposition. Therefore, I will deny the motion for 

protective order as related to him. 

ORDER 

For the foregoing reasons, the Secretary's motion for 

protective order to prohibit the deposition of Assistant Secretary 

Tattersall is GRANTED; the Secretary's motion for protective order 

243 
to prohibit the deposition ·of former Administrator Spicer is 

DENIED. 

Distribution: 

/(,4.4,,,,,,v., ,4/1.~1&-u~I(_ J ~!mes A. Broderick 

Administrative Law Judge 

Douglas N. White, Esq., Office of the Solicitor, u. s. Department 

·of Labor, 4015. Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Timothy M. Biddle, Esq., Thomas c. Means, Esq., J. Michael Klise, 

Esq., Crowell and Moring, 1001 Pennsylvania Avenue, N.W., 

Washington, D.c. 20004 (Certified Mail) 

R. Henry J. Moore, Esq., Buchanan Ingersoll, 600 Grant Street, 58th 

Floor, Pittsburgh, PA ·15219 (Certified Mail) 

Laura E. Beverage, Esq., Henry Chajet, Esq., Jackson & Kelly, P. o. 

Box 553, Charleston, WV 25322 (Certified Mail) 

Linda Homerding, Esq., Williams and Connolly, 839 17th Street, 

N.W., Washington, D.C. 20006 (Certified Mail) 

All other counsel and parties by Regular Mail. 

/fas 

244 
IN RE: 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 23 1992 

CONTESTS OF RESPIRABLE 

DUST SAMPLE ALTERATION 

CITATIONS 

) 

) 

) 

MASTER DOCKET NO. 91-1 

ORDER DENYING MOTION TO COMPEL 

WRITTEN DISCOVERY 

On January 7, 1992, Contestants represented by Street, Street, 

street, Scott and Bowman (Contestants), filed a motion to compel 

answers to interrogatories and requests for production of documents 

served upon the Secretary of Labor (Secretary). The Secretary 

filed a response in opposition to the motion on January 17, 1992. 

On July 26, 1991, Contestants served a First Set of 

Interrogatories and a Request for Production of Documents on 

counsel for the Secretary. According to the motion, the Secretary 

served her answers on counsel for the Contestants "on or around 

September 10, 1991." 

On June 28, 1991, I issued an Amended Prehearing Order 

Adopting Plan and Schedule of Discovery as an order of the Review 

Commission. This was based on a plan and schedule of discovery 

submitted by counsel for the Secretary which was negotiated with 

counsel for some of the operators, and was revised following 

discussion at a Prehearing Conference on June 19, 1991. This 

discovery plan provided in part in II. D.l that "(e)xcept for good 

cause shown, responses to requests for admissions, answers to 

interrogatories, ... and responses to requests for production of 

documents shall be completed by August 30, 1991. Motions to compel 

shall be filed by September 16, 1991." The Plan and Schedule of 

Discovery was amended, upon motion of Jackson & Kelly, by order 

issued September 10, 1991. Article II. D.l was changed to provide 

that answers to interrogatories and requests for production of 

documents should be completed by September 11, 1991 and motions to 

compel should be filed by October 4, 1991. The discovery plan was 

further amended by orders issued October 4, 1991 and December 3, 

1991. Each of these orders provided that answers to 

interrogatories and requests for production of documents should be 

completed by September 13, 1991 and motions to compel should be 

filed by October 4, 1991. 

245 
Contestants' motion to compel is clearly filed out of time 

under the provisions of the Plan and Schedule of Discovery. For 

this reason, the motion is DENIED. 

Distribution: 

~iiU!-S- /j-/]:, V~z e/_ 

L Jam~s.A. Br~derick 

Adm1n1strat1ve Law Judge 

Douglas N. White, Esq., Carl Charneski, Esq., Office of the 

Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Room 

516, Arlington, VA 22203 (Certified Mail) 

Thomas R. Scott, Jr., Esq., Street, Street, Street, Scott & Bowman, 

P. o. Box 2100, Grundy, VA 24614 (Certified Mail) 

All other counsel and parties by Regular Mail 

/fas 

246