SEPTEMBER 1988 

COMMISSION ORDERS 

06-16-88 Local Union 5817, UMWA v. Monument Mining 

Corporation and Island Creek Coal Co. 

06-20-88 Wi1mot Mining Company 

COMMISSION DECISIONS 

!)9-07-88 

09-09-88 

09-15-88 

09-19-88 

09-26-88 

09-26-88 

09-27-88 

09-29-88 

Mettiki Coal Corporation 

Middle States Resources, Inc. 

Ten-A Coal Company 

Southern Ohio Coal Company 

U.S. Steel Mining Company, Inc. 

Sec. of Labor on behalf of Bobby G. Keene v. 

S & M Coal Co., Inc. etc. 

Kaiser Coal Corporation 

Wilfred Bryant v. Dingess Mine Service, etc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

09-01-88 

09-08-88 

f)9-08-88 

09-12-88 

09-14-88 

09-14-88 

n9-1.5-88 

09~15-88 

D9-lfi-38 

09-16-d8 

i)9-20-88 

09-23-88 

l9-.'3-88 

09-26-88 

09-27-88 

09-29-88 

09-30-88 

09-30-88 

Gateway Coal Company 

Rivco Dredging Corporation 

Westmoreland Coal Company 

Texas Architectural Aggregates, Inc. 

Price Construction Inc. 

Colorado Westmoreland, Inc. 

Arthur Browning v. Nalley & Hamilton Enterprises 

Se .,f Labor on behalf of George Johnson and 

other:-; v. li.m Walter Resources, Inc. 

Co11s0i"idation Coal Company 

ARC ~aterials Corp/WMK Transit Mix 

Dak. ,, Coruorat ion 

Stanlev Bakf T v. Kentucky Stone Company 

Eurek;:i St one Ouarry, Inc. 

In.jui:.t rial Gunstructors Corporation 

RochP~tPr & Pittsburgh Coal Co. 

Se. .)t !.abor on behalf of Donald Robinette 

and Joev Hale v. Bill Branch Coal Co. 

Bobbv R. Luttrell v. Jericol Mining, Inc. 

Asarco Incorporated 

ADMINISTRATIVE LAW JUDGE ORDERS 

08-10-88 

\)9-01-88 

09-07-88 

09-07-88 

09-07-88 

09-07-88 

09-07-88 

-- - - - ------

Emerv Mining Corp./Utah Power & Light Co. 

Sec.. Labor on behalf of Patrick Staufield v. 

National Mines Corp. 

Columbia Portland Cement Company 

C(•;umbia Portland Cement Company 

C0lnmbia Portland Cement Company 

Columbia Portland Cement Company 

Columbia Portland Cement Company 

WEVA 85-21-C Pg. 1123 

LAKE 85-47 Pg. 1124 

YORK 87-2-R 

WEVA 88-154 

WEVA 88-136 

WEVA 86-190-R 

PENN 87-37 

VA 86-34-D 

Pg. 1125 

Pg. 1130 

Pg. 1132 

Pg. 1135 

Pg. 1138 

Pg. 1145 

WEST 88-131-R Pg. 1165 

WEVA 85-43-D Pg. 1173 

PENN 87-251 

KENT 87-147 

VA 87-31-R 

CENT 88-55-M 

CENT 87-59-M 

WEST 88-223-R 

KENT 88-132-D 

SE 86-108-D 

WEVA ~8- 348-·R 

WEST 87-108-M 

WEVA 87-111-R 

KENT 87-142-D 

PENN 83-62-M 

WEST 87-206-M 

PENN 88-194-R 

VA 87-21-D 

VA 87-22-D 

KENT 87-214-D 

WEST 87-179-M 

Pg. 1189 

Pg. 1195 

Pg. 1209 

Pg. 1213 

Pg. 1228 

Pg. 1236 

Pg. 1243 

Pg. 1244 

Pg. 1246 

Pg. 1253 

Pg. 1259 

Pg. 1295 

Pg. 1298 

Pg. 1306 

Pg. 1313 

Pg. 1318 

Pg. 1318 

Pg. 1328 

Pg. 1336 

WEST 87-130-R Pg. 1337 

KENT 88-171-D Pg. 1359 

LAKE 88-54-M 

LAKE 88-55-M 

LAKE 88-58-M 

LAKE 88-59-M 

LAKE 88-62-M 

Pg. 1363 

Pg. 1375 

Pg. 1387 

Pg. 1399 

Pg. 1405 

SEPTEMBER 1988 

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

Secretary of Labor, MSHA v. Southern Ohio Coal Company, Docket No. 

LAKE 87-95-R, 88-26. (Judge Weisberger, July 28, 1988) 

Secretary of Labor, MSHA v. Middle States Resources, Inc., Docket No. 

WEVA 88-154. (Chief Judge Merlin, Default order of August 15, 1988) 

Secretary of Labor, MSHA v. Ten-A Coal Company, Docket No. WEVA 88-136. 

(Chief Judge Merlin, Default order of August 15, 1988) 

Secretary of Labor, MSHA v. Garden Creek Pocahontas Company, Docket No. 

VA 88-9, 88-10, 88-11. (Judge Melick, August 19, 1988) 

Secretary of Labor, MSHA on behalf of Michael Price and Joe John Vacha v. 

Jim Walter Resources, Docket No. SE 87-128-D. (Judge Broderick, August 26, 1988) 

No cases were filed in which review was denied. 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

LOCAL UNION NO. 5817, DISTRICT 17, 

UNITED MINE WORKERS OF AMERICA 

(UMWA) 

v. 

MONUMENT MINING CORPORATION and 

ISLAND CREEK COAL COMPANY 

June 16, 1988 

Docket No. WEVA 85-21-C 

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

ORDER 

BY THE COMMISSION: 

On February 23, 1988, the United States Court of Appeals for the District 

of Columbia Circuit issued its decision in this matter, styled International 

Union, UMWA v. FMSHRC, 840 F.2d 77 (D.C. Cir. 1988), reversing the 

Commission's decision (Local Union No. 5817, District 17, UMWA v. Monument 

Mining Corp. and Island Creek Coal Co., 9 FMSHRC 209 (February 1987)), and 

remanding for further proceedings consistent with its opinJon. 

In accordance with the Court's order, we are obliged to remand this 

matter to the administrative law judge originally assigned for further 

proceedings including, if necessary, consideration of any remaining challenges 

by Island Creek Coal Company to the complaint for compensation that have not 

been previously waived. 

A •. ;Lastowkai Commissioner /I . ·,__ r/ . : 

{ :.. - .. ~I ' { . , .._ L '--"'-'--\/ Lt -- '--'-<. ''-" 

Clair Nelson, Commissioner 

1123 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WILMOT MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June,20, 1988 

Docket No. LAKE 85-47 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

On May 17, 1988, the United States Court of Appeals for the Sixth 

Circuit issued its opinion in this matter, styled Wilmot Mining Company 

v. Secretary of Labor, etc., No. 87-3480 (per curiam). The Commission's 

decision, reported at 9 FMSHRC 684 (April 1984), was affirmed in part, 

reversed in part, and remanded for further proceedings. 

In relevant part, the Court concluded that substantial evidence 

did not support the Commission's determination, for civil penalty 

assessment purposes, of negligence with respect to the operator's 

violation of 30 C.F.R. § 77.403(a). The Court remanded the case to the 

Commission for reconsideration of the civil penalty assessment for that 

violation. In accordance with the Court's order, we remand this matter 

to the Commission administrative law judge originally assigned for 

further proceedings consistent with the Court's decision. 

Fo , Chairman 

~A--t: -C--<' 4 L-4 zt /fc_-z_,.../ 

Richard V. Backley, Commissioner -- ,.. ,/I ~ '/ :' 

\. r_'.-L.c,-(_J _ _, t'. '(, .~I L ( ( 

JoY.ce A. Doyle, Commiss·~ner 

~s(~~ La~tcl"~ co7'1i~sioner 

·.:£'l:~ I ~6---i-v L. Clair Nelson, Commissioner 

1124 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 7, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

METTIKI COAL CORPORATION 

Docket Nos. YORK 87-2-R 

YORK 87-3-R 

YORK 87-5 

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

Connnissioners 

DECISION 

BY THE COMMISSION: 

In these consolidated contest and civil penalty proceedings 

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

§ 801 et. ~ (1982) (the "Mine Act"), the issue is whether Mettiki 

Coal Corporation ("Mettiki") violated 30 C.F.R. § 75.305 at its underground coal mine by failing to examine at least once each week a minimum 

of one entry of each intake and return aircourse in its entirety. l/ 

Commission Administrative Law Judge Gary Melick held that Mettiki had 

no~ violated the standard. 9 FMSHRC 1088 (June 1987)(ALJ). For the 

reasons that follow, we affirm Judge Melick's decision. 

lf 30 C.F.R. § 75.305, a mandatory safety standard for underground 

coal mines restates section 303(f) of the Mine Act, 30 U.S.C. § 863(f). 

Section 75.305 provides in part: 

In addition to the preshift and daily examinations 

required by this Subpart D, examinations for 

hazardous conditions, including tests for methane, 

and for compliance with the mandatory health or 

safety standards, shall be made at least once each 

week by a certified person designated by the 

operator in ... at least one entry of each intake 

and return air course in its entirety .•.. The 

person making such examinations and tests shall 

place his initials and the date and time at the 

places examined, and if any hazardous condition is 

found, such condition shall be reported to the 

operator promptly .... Any hazardous condition shall 

be corrected immediately .... 

1125 
The conditions alleged by the Secretary of Labor ("Secretary") to 

constitute violations of section 75.305 occurred at Mettiki's mine 

located in Garrett County, Maryland. There are ten parallel entries in 

the main portion of the E-mains section (the "E-mains entries"). The 

crosscuts ("breaks") are numbered sequentially from the portals. See 

Exh. C-1. The mine is ventilated by an exhaust fan located at the 

portal of the No. 7 E-mains return, which exhausts air from the mine. 

At the same time, fresh air is pulled into the mine through the No. 4 

and No. 5 portals. 

In the early 1980's, as a result of squeezing~/ in the E-mains 

entries, Mettiki drove three additional entries (the "Skipper entries") 

parallel to the E-mains entries. A block of coal (the "barrier block"), 

approximately 300 feet wide and 2,000 feet long, separates the E-mains 

entries from the Skipper entries and extends from Break 11 to Break 39. 

Intake air flows into the Skipper No. 1 entry from the E-mains intake 

entries at Break 11, courses the length of the barrier block, is 

reunited with the intake air in the E-mains entries at Break 40 and 

Break 50, and flows inby to ventilate the E-1 working section. Having 

crossed the working face, the air is then exhausted through the E-mains 

return entries. The Skipper No. 3 entry also exhausts return air and, 

at the intersection of Break 4 and E-mains No. 7 return entry, the 

return air from both the E-mains and Skipper No. 3 entry mix and the 

combined return air flows 600 or 700 feet to the No. 7 portal and out of 

the mine. (Skipper No. 2 entry is ventilated by neutral air.) See Exh. 

C-1. 

On September 10 and 11, 1986, an inspector for the Department of 

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

inspections at the mine. At this time, it was Mettiki's daily practice 

to examine the E-mains No. 5 intake entry and the E-mains Nos. 7 and 9 

return escapeway for hazardous conditions. These entries were the only 

intake and return entries that Mettiki examined in their entirety at 

least once each week. Because the inspector believed that the Skipper 

intake and return entries were aircourses separate and distinct from the 

E-mains intake and return entries, he cited Mettiki for the alleged 

violations of section 75.305 in orders of withdrawal issued pursuant to 

section 104(d)(2) of the Act. 30 U.S.C. § 814(d)(2). 

Subsequently, Mettiki contested the orders and the Secretary 

sought civil penalties for the violations. At the hearing on the 

consolidated matters, the parties disputed whether the Skipper intake 

and return entries were separate aircourses subject to section 75.305. 

The Secretary argued that the E-mains section contained two discrete 

sets of aircourses -- an intake and return aircourse on the E-mains side 

of the barrier block and an intake and return aircourse on the Skipper 

side of the barrier block. Mettiki maintained that the intake and 

'1:_/ "Squeezing" is defined as "the slow increase in weight on pillars 

or solid coal eventually resulting in such things as crushing of the 

coal, heaving of the bottom and the driving of pillars into soft floor 

or top." Bureau of Mines, U.S. Department of the Interior, A Dictionary 

of Mining, Mineral, and Related Terms 1062 (1968). 

1126 
return entries on both sides of the block were part of the s~e 

aircourse. The parties agreed that Mettiki had examined the E-mains 

No. 5 intake entry escapeway and the E-mains Nos. 7 and 9 return 

escapeway as required by section 75.305. Therefore, the question before 

the judge was whether the cited Skipper intake and return entries were 

an aircourse separate and distinct from the E-mains intake and return 

entries rather than part of the same aircourse. 

In his decision the judge rejected as "completely arbitrary" the 

Secretary's assertion that the Skipper No. 1 intake entry constituted a 

separate and distinct aircourse. 9 FMSHRC at 1093. The judge stated 

that the assertion was "not based on any definition of the term 'air 

course' in any relevant statute, regulation, MSHA policy, or industry 

past usage" and that the Secretary "presented no evidence of any prior 

consistent enforcement ••• establish[ing] that Mettiki was on notice 

regarding the Secretary's interpretation [of section 75.305]." Id. The 

judge held that the Secretary did not prove that Mettiki violated 

section 75.305. He further stated that language of section 75.305 makes 

clear that an aircourse may consist of more than one entry and that in 

examining on a weekly basis at least one entry in each aircourse in its 

entirety, Mettiki complied with the standard. Id. For the same 

reasons, the judge also rejected the Secretary';-argument that the 

Skipper No. 3 return entry constituted a separate and distinct 

aircourse. Id. Therefore, he vacated the contested orders of 

withdrawal. -We granted the Secretary's petition for discretionary 

review. 

We agree with the judge that the Secretary failed to prove the 

alleged violations. At the hearing, counsel for the Secretary 

ma~ntained that the physical separation of the E-mains entries from the 

Sk~pper entries, caused by the barrier block, created separate 

aircourses. Tr. 10-11. MSHA supervisor Barry Ryan testified that while 

an aircourse may contain one or more entries, if the entries are 

"connnon" with one another they constitute a single aircourse, but if 

they are "split" they constitute separate aircourses. Tr. 98. On 

review, the Secretary paraphrases Ryan's testimony and argues that "if 

the air is divided, if the entries are not 'common with each other' and 

if there is no intermingling of air, then the entries or sets of entries 

constitute separate 'aircourses. 111 S. Br. 7. The Secretary does not 

explain what is meant by entries that are "connnon with each other." 

Further, and as the judge noted, the Secretary offers no evidence 

regarding any relevant statutory or regulatory definition of aircourse, 

nor any evidence of custom, practice, or usage from which a meaning can 

be gleaned. 

Mettiki maintains that section 75.305 contemplates that an 

aircourse may be comprised of many entries and that as long as the 

entries are ventilated by the same air they constitute a single 

aircourse. See Tr. 13. Mettiki's witnesses consistently testified that 

the E-mains and Skipper intake entries and the E-mains and Skipper 

return entries were all parts of the same aircourse and therefore 

examination of only one intake and one return entry was required by 

section 75.305. MSHA supervisor Ryan's testimony agrees with that of 

Mettiki's chief engineer and its mine foreman that the intake air in the 

1127 
Skipper No. # entry mixes with the intake air in the E-mains entries at 

the bottom of.the barrier block. Tr. 93-94, 102, 189, 191, 194-95; ~ 

also Exh. C-1. Ryan's testimony also acknowledges that the· intake air 

in the Skipper No. 1 entry mixes with the E-mains intake at Break 50. 

Tr. 102; see also Exh. C-1. The record further establishes that the 

return air in the Skipper No. 3 entry is pulled by the exhaust fan up 

the entry, that it traverses Break 9, flows up E-mains No. 2 and 3 

return entries where it mixes with return air at the intersection of 

Break 4 and E-mains No. 7 return entry. The mixed air then courses 600 

to 700 feet to the return portal. Tr. 115-16, 206-07, 212; see also 

Exh. C-1. Thus, substantial evidence of record supports the judge's 

finding that in fa.ct the air in the Skipper entries mixes freely with 

that in the E-mains. 

The judge adopted Mettiki's view that because the air in the Emains and Skipper entries mixes, it is part of the same aircourse and 

held that Mettiki was in compliance with the standard. 9 FMSHRC at 

1092-93. We agree. The plain requirement of section 75.305 is that "at 

least one entry in each intake and return aircourse be examined" 

(emphasis added). This obviously contemplates that an aircourse may 

consist of more than one entry. Thus, we conclude that the judge 

properly held that the Secretary did not prove that Mettiki violated 

section 75.305 and that Mettiki, by examining the E-mains No. 5 intake 

entry escapeway and the E-mains No. 7 and No. 9 return escapeway at 

least weekly in their entirety, complied with section 75.305. 

Our disposition is based on the record before us. We are not 

defining for all purposes the meaning of "aircourse" as used in section 

75.305. 

Accordingly, the decision of the administrative law judge is 

affirmed. 

) / 

·~ 

oyce . Doyle, Commission 

~d~' ,James A. Lastowka\Commissioner /U' 

'~-~ 4~v -;lt__,(_\J_~ L. Clair Nelson, Commissioner 

1128 
Dist-ribution 

Linda Leasure, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Susan E. Chetlin, 

Crowell & Moring 

1001 Pennsylvania 

Washington, D.C. 

Esq. 

Ave., N.W. 

20004 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1129 
FEDERAL MINE SAFETY AND HEALTH REVIEW COt.tMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MIDDLE STATES RESOURCES, 

INCORPORATED 

September 9, 1988 

Docket No. WEVA 88-154 

BEFORE: Ford B. Ford, Chairman; Backley, Lastowka, Doyle, 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. (1982). On August 15, 

1988, Commission Chief Administrative Law Judge Paul Merlin issued an 

Order of Default finding respondent Middle States Resources, Inc. 

("MSR") in default for failure to answer the Secretary of Labor's civil 

penalty complaint and the judge's subsequent order to show cause .. The 

judge assessed a civil penalty of $444 proposed by the Secretary. By 

letter dated August 26, 1988, addressed to Judge Merlin, MSR asserted 

that it had filed its "Blue Card" request for a hearing in this matter 

and had not received the judge's show cause order. We deem MSR's August 

26 letter to constitute a timely petition for discretionary review of 

the judge's default order. See, e.g., Mohave Concrete & Materials, 

Inc., 8 FMSHRC 1646 (November 1986). We grant the petition and 

~rily remand this matter to the judge for further proceedings. 

It appears from the record that MSR, a small operator acting pro 

se, did file a Blue Card request for a hearing in this matter in 

response to the Secretary's initial notification of proposed penalty. 

However, MSR did not file an answer to the Secretary's subsequent civil 

penalty complaint, as it was required to do in order to maintain its 

contest of that penalty proposal. See 29 C.F.R. §2700.28. Accordingly, 

on June 9, 1988, Judge Merlin issued an Order to Respondent to Show 

Cause directing it to file the answer or be found in default. MSR did 

not respond to the show cause order. MSR has alleged in its August 26 

letter that, because of a change in corporate agent and because 

correspondence was addressed to the former agent, it did not receive the 

show cause order. The official file indicates that the show cause order 

may not have been delivered to or received by MSR. MSR also asserts 

that it notified the Department of Labor's Mine Safety and Health 

1130 
Administration of the change in its agent. 

In a case involving a similar situation, the Counnission held that 

"un.der appropriate circumstances a genuine problem in counnunication or 

with the mail may justify relief from default." Con-Ag, Inc., 9 FMSHRC 

989, 990 (June 1987). Upon consideration of the record and MSR's 

request for relief from default, we conclude that MSR should be afforded 

the opportunity to raise these issues with the judge, who shall 

determine whether relief from default is appropriate. Cf. Kelley 

Trucking Co., 8 FMSHRC 1867, 1869 (December 1986). 

Accordingly, the judge's default order is vacated and this matter 

in remanded fo:_proceedings consistent with this order. 

~ Richard V. Backley, Commiss~ 

Distribution 

Preston Turner 

Middle States Resources, Inc. 

1000 DuPont Rd., Bldg. 6 

Morgantown, West Virginia 26505 

Therese I. Salus, Esq. 

Office of the Solicitor 

U.S~ Department of Labor 

14480 Gateway Bldg. 

3535 Market St. 

Philadelphia, PA 19104 

~7~ L. Clair Nelson, Connnissioner 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Counnission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

1131 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

TEN-A COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 15, 1988 

Docket No. WEVA 88-136 

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

Conunissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). On August 15, 

1988, Conunission Chief Administrative Law Judge Paul Merlin issued an 

Order of Default finding respondent Ten-A Coal Company ("Ten-A") in 

default for failure to answer the Secretary of Labor's civil penalty 

complaint and the judge's subsequent order to show cause. The judge 

assessed a civil penalty of $504 proposed by the Secretary. By letter 

dated August 29, 1988, addressed to Judge Merlin, Ten-A asserted that it 

had filed its "Blue Card" request for a hearing in this matter and had 

"never received any papers on this" until it received the default order. 

We deem Ten-A's August 29 letter, received by the Conunission on 

August 31, to constitute a timely petition for discretionary review of 

the judge's default order. See, ~, Mohave Concrete & Materials, 

.!!!£:.., 8 FMSHRC 1646 (November 1986). We grant the petition and 

sununarily remand this matter to the judge for further proceedings. 

It appears from the record that Ten-A, a relatively small operator 

acting without counsel, did file a Blue Card request for a hearing in 

this matter in response to the Secretary's initial notification of 

proposed penalty. However, Ten-A did not file an answer to the 

Secretary's subsequent civil penalty complaint, as it was required to do 

in order to maintain its contest of that penalty proposal. See 29 

C.F.R. § 2700.28. Accordingly, on June 9, 1988, Judge Merlin issued an 

Order to Respondent to Show Cause directing Ten-A to file an answer or 

be found in default. Ten-A did not respond to the show cause order. 

Ten-A has alleged that it "never received any papers on this" following 

its filing of the Blue Card and prior to receipt of the default order. 

1132 
The record reflects that the Secretary's penalty proposal was 

served by first class mail on Ten-A at its proper address. The record 

also shows that the judge's show cause order was mailed to Ten-A on 

June 9, 1988, by certified mail, return receipt requested, at the proper 

address, attention of Patrick H. Cunningham, Partner. The record 

contains the certified mail return receipt for that mailing, signed on 

June 14, 1988, by one Frank Cunningham. The Commission has recently 

noted that "under appropriate circumstances a genuine problem in 

communication or with the mail may justify relief from default." Middle 

States Resources, Inc., 10 FMSHRC ~-' No. WEVA 88-154, slip op. at 2 

(September 9, 1988), guoting Con-Ag, Inc., 9 FMSHRC 989, 990 (June· 

1987)(emphasis added). The record does not contain sufficient 

information to permit us to rule with respect to Ten-A's claims, but we 

remand this matter to the judge, who shall afford Ten-A the opportunity 

to present its explanation. The judge shall determine whether relief 

from default is appropriate under the circumstances presented. Cf. 

Perry Drilling Co., 9 FMSHRC 377, 380 (March 1987). 

Accordingly, the judge's default order is vacated and this matter 

is remanded for proceedings consistent with this order. Ten-A is 

reminded to serve the Secretary of Labor with copies of all its 

correspondence and other filings in this matter. 29 C.F.R. § 2700.7. 

Joyce 

~d.~~ A. Doyle, Comm1:s~ 

L. Clair Nelson, Commissioner 

1133 
Distribution 

Anita D. Eve, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

3535 Market Street 

Philadelphia, PA 19104 

Patrick H. Cunningham-Ptnr. 

Ten-A-Coal Company-Ward Mine 

Route 4, Box 253· 

Clardsburg, WV 26301 

1134 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SOUTHERN OHIO COAL COMPANY 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SOUTHERN OHIO COAL COMPANY 

Sept~mber 19, 1988 

Docket Nos. WEVA 86-190-R 

WEVA 86-194-R 

WEVA 86-254 

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

Commissioners 

ORDER 

---

BY THE COMMISSION: 

At issue in this consolidated contest and civil penalty proceeding 

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

§ 801 et seg. (1982) ("Mine Act"), was the validity of a notice to 

provide safeguard issued to Southern Ohio Coal Co. ("Socco") pursuant to 

30 C.F.R. § 75.1403. On August 19, 1988, the Commission issued a 

decision holding that substantial evidence does not support the 

Administrative Law Judge's conclusion that the notice to provide 

safeguard was issued improperly. The Commission reversed the judge's 

vacation of the contested order, and remanded the matter to the judge to 

consider Sacco's contest of the order's special findings and to assess 

an appropriate civil penalty. 10 FMSHRC ~ (August 19, 1988). On 

August 29, 1988, the Commission received from counsel for Socco a Motion 

to Alter or Amend Judgment. Socco moves the Commission to enter a new 

decision in Socco's favor or to remand the matter to the judge for the 

taking of further evidence. 

We view Sacco's motion as being in the nature of a motion for· 

reconsideration. 29 C.F.R. § 2700.75. The Secretary has not filed a 

response to the motion. 

The main thrust of Socco's request is that, under the Mine Act, 

1135 
Commission review of an administrative law judge's decision is "limited 

to questions raised by the petition [for discretionary review]," 

30 U.S.C. § 823(d)(2)(A)(iii). It asserts that the ·commission has erred 

in deciding this case on a factual basis not raised in the Secretary's 

petition for discretionary review. We disagree with Sacco's contention 

that the basis for our disposition was not within the proper scope of 

review. In her petition, the Secretary had expressly challenged, on 

evidentiary grounds, the judge's assertion that there was no basis for 

limiting the safeguard requirement at issue to the subject mine. S. PDR 

at 8. We agreed, and that was the basis for our d~cision. Slip op. 5-

6. As for Sacco's other assertions as to why our decision should be 

reconsidered, we have reviewed them and find them unpersuasive. 

Accordingly, Sacco's motion is denied. l/ 

Richard V. Backley, 

ames A. Lastowka, 

-~ Commissioner 

L. 

~~ Clair Nelson, Commissioner 

ll Sacco correctly notes that Docket No. WEVA 86-194-R was not at 

issue on review and need not be subject to further proceedings on 

remand. 

1136 
Distribution 

David M. Cohen, Esq. 

American Electric Power 

Service Corporation 

P.O. Box 700 

Lancaster, Ohio 43130 

Vicki Shteir-Dunn, Esq. 

Office of the Solicitor 

U.S. Department of· Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Roy Maurer 

Federal llline Safety & Health Review Commission 

5203 Leesourg Pike, Suite 1000 

Falls Church, Virginia 22041 

1137 
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 

September 26, 1988 

U.S. STEEL MINING COMPANY, INC. 

Docket Nos. PENN 87-37 

PENN 87-38 

PENN 87-127 

PENN 87-157 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This consolidated civil penalty proceeding arising under the 

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

(1982), involves four separate citations issued to U.S. Steel Mining 

Company, Inc. ("USSM") alleging "significant and substantial" violations 

of 30 C.F.R. § 75.601 for improperly labeled trailing cable receptacles 

at USSM's Cumberland Mine. l/ The parties stipulated at the hearing 

that resolution of the issue in the present matter (Docket No. PENN 87-

37) would determine the result in all four proceedings. Tr. 3-4. 

Accordingly, Commission Chief Administrative Law Judge Paul Merlin 

ll Section 75.601, a mandatory safety standard for underground coal 

mines, restates section 306(b) of the Mine Act ("Trailing cables"), 

30 U.S.C. § 866(b), and provides: 

Short circuit protection of trailing cables 

Short-circuit protection for trailing cables shall 

be provided by an automatic circuit breaker or other 

no less effective device approved by the Secretary 

of adequate current-interrupting capacity in each 

ungrounded conductor. Disconnecting devices used to 

disconnect power from trailing cables shall be · 

plainly marked and identified and such devices shall 

be equipped or designed in such a manner that it can 

be determined by visual observation that the power 

is disconnected. 

(Emphasis added.) 

1138 
consolidated the proceedings for hearing and decision. Judge Merlin 

determined that USSM violated section 75.601 by failing to plainly mark 

and identify trailing cable receptacles in order to identify the 

equipment plugged into each receptacle at the cited power center. 

9 FMSHRC 1771 (October 1987)(ALJ). Judge Merlin also found that the 

violation of section 75.601 was of a "significant and substantial" 

nature as alleged in the citation and assessed a civil· penalty of $200 

in each of the four proceedings. 9 FMSHRC at 1778. We subsequently 

granted USSM's petition for discretionary review. For the following 

reasons, we affirm the judge's decision. 

The facts in this proceeding are not in dispute. On September 18, 

1986, Charles Pogue, an inspector with the Department of Labor's Mine 

Safety and Health Administration ("MSHA"), conducted a regular 

inspection at USSM's Cumberland Mine, an underground coal mine located 

in Greene County, Pennsylvania. Inspector Pogue observed that although 

the trailing cable plugs at the 8 Butt East Section's power center were 

plainly marked and identified with the names of the equipment that they 

powered (e.g., "S.C. 2" for shuttle car No. 2), the power center 

receptacles into which the plugs were inserted were not so marked. 

Instead, each trailing cable receptacle was labeled to identify the 

specific circuit breaker that controlled that receptacle. (Thus, the 

receptacles and circuit breakers were labelled "CKT l" through "CKT 6.") 

Inspector Pogue believed that USSM's identification system for 

power center components did not comply with section 75.601. After 

questioning management about USSM's marking system, which represented a 

departure from its prior labelling system, the inspector left the mine 

without issuing a citation. He returned to the MSHA Field Office in 

Waynesburg, Pennsylvania, in order to consult with his supervisor. 

Inspector Pogue returned to the Cumberland Mine on September 18, 1986, 

and issued a citation to USSM pursuant to section 104(a) of the Mine 

Act, 30 U.S.C. § 814(a), alleging a "significant and substantial" 

violation of section 75.601. The citation states in relevant part: 

As observed on September 18, 1986, at 9:30 a.m. the 

trailing cable receptacles were not properly 

identified or labeled so as to identify the 

electrical equipment plugged into the power center 

receptacles for the feeder, roof drill, welder, 

shuttle car no. 2, fan no. 2, scoop charger, ram car 

no. 2. Charger and continuous mining machine in the 

8 Butt East [section]. 

The citation was terminated when USSM installed labels on the trailing 

cable receptacles to specifically identify the equipment plugged into 

each receptacle. 

In finding a violation of section 75.601, Judge Merlin credited 

the testimony of the Secretary's expert witness, Willis E. Cupp, an MSHA 

electrical specialist, that a "plug and a receptacle [are] one thing" 

(Tr. 107), and concluded that both electrical components together 

constitute a disconnecting device for purposes of section 75.601. 

9 FMSHRC at 1774-75. The judge stated, "[o]nly when one is separated 

1139 
from the other does a disconnection occur. Therefore, they both 

together should be viewed as a unit for purposes of the mandatory 

standard." 9· FMSHRC at 1775. In reaching this conclusion, the judge 

also found that the Secretary's consistent interpretation of section 

75.601 requirements since 1979 merited weight an_d should be accorded 

deference. 9 FMSHRC at 1776. 'l:_/ Accordingly, he concluded that USSM 

had violated the standard as alleged. Finally, applying the 

Commission's Cement Division, National GyPsum Co., 3 FMSHRC 822, 825 

(April 1981) and Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984) tests, 

he determined that the violation was of a significant and substantial 

nature. 9 FMSHRC at 1777-78. 

On review, USSM contends that only the plug end -of a trailing 

cable is a "disconnecting device" within the meaning of section 75.601 

and that, therefore, the receptacle into which the trailing cable is 

plugged need not be "marked and identified" to correspond with that 

cable plug. 

We conclude that the testimony of the MSHA witnesses in this case 

'l:_/ With regard to the Secretary's interpretative position, the MSHA 

Coal Mine Health and Safety Inspection Manual for Underground Coal Mines 

(March 9, 1978) provides, relative to section 75.601, that: 

A visual means of disconnecting power from trailing 

cables shall be provided so that a miner can readily 

determine whether the cable is de-energized. Plugs 

and receptacles located at the circuit breaker are 

acceptable as visible means of disconnecting the 

power. These devices shall be plainly marked. For 

example, the loading machine cable disconnecting 

device shall be plainly marked (LOADER), the shuttle 

car cable disconnecting device shall be plainly 

marked (S.C. No. 1 or S.C. No. 2) or the 

disconnecting devices shall be readily identifiable 

by other equally effective means. 

Similarly, the MSHA Coal Mine Safety Electrical Inspection Manual, 

Underground Coal Mines (June 1, 1983) states with reference to section 

75.601 that: 

Plugs and receptacles located at the circuit breaker 

are acceptable as visual means of disconnecting 

the power. 

These devices shall be plainly marked for 

identification to lessen the chance of energizing a 

cable while repairs are being made on the cable. 

For example, the loading machine cable plug shall be 

plainly marked "LOADER," the shuttle car cable plug 

shall be plainly marked "S.C. No. 111 or S.C. No. 2." 

Exhibits GX-2, GX-3. 

1140 
affords substantial evidentiary support for the judge's finding that a 

trailing cable plug and receptacle are, in essence, an integrated 

disconnecting device for purposes of this standard. Although the term 

"disconnecting device" is not defined in the Act or the Secretary's 

regulations, the pertinent language of section 75.601 does not refer 

merely to such devices in a general sense, but rather focuses on devices 

"used to disconnect power from trailing cables." De-energization of 

equipment powered by a trailing cable is achieved, as relevant here, by 

disconnecting the trailing cable plug from a receptacle. The plug and 

receptacle are designed to be used together as a means of connecting or 

disconnecting power. 

The Secretary's position requiring that particular trailing cable 

plugs and receptacles be labelled identically is a reasonable 

construction of section 75.601. ~/ Since a trailing cable plug and 

receptacle are used together to effect a disconnection and since the 

purpose of the identification requirement is to provide a ready means of 

ascertaining trailing cable power status, it is an appropriate reading 

of the standard to require that a particular receptacle be marked to 

correspond to a particular trailing cable plug. 

As recognized by the judge, the Secretary's position regarding the 

marking of trailing cable receptacles has been applied consistently for 

a number of years. Indeed, the evidence shows that the labelling system 

argued for by the Secretary was used at the subject mine from 1979 until 

1986. USSM first adopted and utilized the system in January 1979 after 

a fatal electrical accident involving power center equipment at the 

Cumberland Mine. Also, in 1984, we affirmed a "significant and 

substantial" finding with respect to a violation of the cited standard 

at the Cumberland Mine in 1982, where the trailing cable plugs on 

certain power center equipment were not identified to correspond to the 

receptacles that powered them. U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). Thus, it is apparent from the record that USSM has 

had longstanding notice of MSHA's interpretation of the requirements of 

section 75.601. 

On review, USSM has presented no compelling reason why the 

Conunission should disagree with the Secretary's interpretation. We 

reject USSM's contention that MSHA's internal policy statements in the 

manuals (note 2 supra) are inconsistent. Both refer to plugs and 

receptacles together as acceptable means of disconnecting power. We 

also reject USSM's argument that the Secretary's position with regard to 

}/ While we have stated that secretarial interpretations or policy 

statements contained in such relatively informal publications as 

inspectors' manuais are not binding, we have also indicated that the 

expertise, soundness, and reasonableness of such interpretive matter may 

justify judicial deference in appropriate cases. See generally, ~· 

King Knob Coal Co., 3 FMSHRC 1417, 1420-21 (June 1981). This is not a 

case where the Secretary has gone beyond the appropriate bounds of 

interpretation and attempted to revise or amend a mandatory standard 

outside the notice and conunent publication requirements imposed by 

section 101 of the Mine Act. 30 U.S.C. § 811. Cf. King Knob, supra. 
section 75.601 is inconsistent with requirements imposed by electrical 

safety standards at 30 C.F.R. §§ 75.511 and 75.903. As Judge Merlin 

noted, USSM's own witness admitted that receptacles, as well as plugs, 

are capable of being locked out and tagged before electrical repairs are 

performed pursuant to section 75.511. 9 FMSHRC at 1775. Similarly, 

MSHA Electrical Supervisor Gerald Davis testified that although section 

75.903 is interpreted by MSHA to refer to plugs, that standard does not 

specifically address trailing cable disconnecting devices, the focus of 

this proceeding. See 9 FMSHRC at 1775. In any event, the present case 

requires us to construe only section 75.601, and we reserve construction 

of other standards addressing other concerns to cases raising such 

issues. 

Finally, we reject USSM's argument that a finding of violation is 

precluded here because the cited system of power circuitry identification at the Cumberland Mine has been utilized in other USSM mines with 

MSHA approval. The Secretary's witnesses uniformly testified and the 

judge found that, with the isolated exception of USSM's Maple Creek 

Mine, MSHA has consistently enforced its interpretation of section 

75.601 requirements at all mines. Tr. 87-88, 139-43; 9 FMSHRC at 1776. 

Although USSM's disputed circuitry identification system was also 

employed at USSM's Maple Creek Mine, MSHA Electrical Supervisor Davis 

testified that the use of that system resulted from temporary 

acquiescence by MSHA in circuit breaker identification requirements 

imposed by the Commonwealth of Pennsylvania. (MSHA's enforcement of its 

usual interpretation of section 75.601 at the Maple Creek Mine has been 

held in abeyance pending disposition of the present proceeding. Tr. 

139-44.) The evidence thus reflects consistent enforcement of section 

75.601 by MSHA over an extended period. Further, an inconsistent 

enforcement pattern alone does not estop the Secretary from proceeding 

under the interpretation of a standard it concludes is correct. See, 

~·· King Knob, supra, 3 FMSHRC at 1421-22. 

Thus, we conclude that the judge's finding of a violation of 

section 75.601 is supported by substantial evidence and is legally 

correct. We turn to the judge's additional finding that the violation 

was of a significant and substantial nature. 

The Commission has held that a violation is properly designated as 

being of a significant and substantial nature if, based on the 

particular facts surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature. Cement Division, National 

Gypsum Co., supra, 3 FMSHRC at 825. In Mathies- Coal Co., supra, the 

Commission explained: 

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 safety--

contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will 

1142 
result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably 

serious nature. 

6 FMSHRC at 3-4. The Conunission subsequently stated 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 

1573, 1574 (July 1984). 

USSM primarily contests the judge's findings with respect to the 

third element of the National Gypsum test. The judge determined that 

"it was reasonably likely that the wrong piece of equipment would be 

energized or that delay would occur in de-energizing the correct piece 

of equipment which would cause serious injury to [a] miner." 9 FMSHRC 

at 1777. We conclude that substantial evidence supports these findings. 

MSHA Electrical Supervisor Davis testified without rebuttal that, 

"[w]hen it comes to working with cables, they are [the] most dangerous 

area in the mine." Tr. 165. MSHA Electrical Specialist Cupp testified 

that there is a strong potential for electrical accidents when several 

pieces of equipment are being worked on simultaneously, and it can be 

difficult to distinguish which trailing cable powers what equipment 

because the cables "sometimes resemble spaghetti, the way they are all 

wrapped around one another." Tr. 115-16. Without the required 

identification of the receptacles serving as an additional visual cue to 

alert the miner as to which cable is energized, a miner "may energize 

the wrong trailing cable, and that would be [connected to] the piece of 

equipment that is now being worked on, and an accident could occur .••. " 

Tr. 116. Further, there was also evidence that identification tags 

sometimes become dislodged from plugs. Tr. 47, 53, 56, 231-33. Under 

MSHA's system, however, labelling the receptacles serves as a backup to 

labelling the plugs and reinforces easy recognition of energization 

status. Tr. 56-57, 114, 150-52. In light of the evidence of record, we 

agree with the judge that the failure to label receptacles to identify 

the equipment each powers contributes to a discrete safety hazard of 

misidentification of power center circuitry, reasonably likely to result 

in electrical shock or electrocution to miners working with or repairing 

electrical equipment. 

USSM does not dispute that any injury resulting from accidental 

energization or de-energization of a trailing cable would be of a 

reasonably serious nature. It argues, however, that the existence of 

the emergency stop ("crash") button at the power center eliminates any 

hazard of electrical shock created by misidentification of circuitry due 

to a violation of section 75.601. Assuming arguendo that miners used 

the crash button in the event of an incident, the de-energization of the 

power center circuitry would not serve the purpose of the labelling 

requirement, to prevent accidental energization of equipment in the 

first instance. We accordingly conclude that substantial evidence 

supports the judge's finding that USSM's violation of section 75.601 was 

of a significant and substantial nature. Accord, U.S. Steel Mining Co., 

supra, 6 FMSHRC at 1836-18 (failure to label shuttle car trailing cable 

plug constituted significant and substantial violation). 

1143 
For the foregoing reasons, the judge's decision is affirmed. 

Distribution 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Billy M. Tennant, Esq. 

U.S. Steel Mining Co., Inc. 

Law Department 

600 Grant Street 

Pittsburgh, PA 15230 

Michael Holland, Esq. 

UMWA 

9-00 15th St., N.W. 

Washington, D.C. 20005 

~ 

~~ Richard V. Backley, Ccmmissioner 

Yoy~le, a d.~ comtniSSi'er 

Commissioner 

Chief Administrative Law Judge Paul Merlin 

i 1144 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 26, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

on behalf of BOBBY G. KEENE 

v. 

S&M COAL COMPANY, INC. , 

TOLBERT P. MULLINS, and 

PRESTIGE COAL COMPANY, INC. 

Docket No. VA 86-34-D 

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

Commissioners 

DECISION 

BY: Ford, Backley, Doyle and Nelson 

This proceeding involves a discrimination complaint brought by the 

Secretary of Labor on behalf of Bobby G. Keene against S&M Coal Company, 

Inc. ("S&M"), Tolbert P. Mullins, and Prestige Coal Company, Inc. 

("Prestige"), pursuant to the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (1982) ("Mine Act"). Following a hearing 

on the merits, Commission Administrative Law Judge Gary Melick concluded 

that S&M had discriminated against Keene in violation of section 

lOS(c)(l) of the Mine Act by discharging him for engaging in a protected 

work refusal, 30 U.S.C. § 815(c)(l) l/; that Prestige, as the successorll Section lOS(c)(l) provides in pertinent part: 

Discrimination or interference prohibited; 

complaint; investigation; determination; hearing 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to this 

[Act] because such miner, representative of miners 

or applicant for employment has filed or made a 

1145 
in-interest to S&M, is jointly and severally liable for the consequences 

of this discriminatory discharge; and that subsequent to S&M's discriminatory.discharge of Keene, Mullins personally discriminated against 

Keene in violation of section 105(c)(l) by refusing to reemploy Keene 

except under illegal and hazardous conditions. 9 FMSHRC 401 (March 

1987) (ALJ). We granted the petition for discretionary review filed 

collectively by S&M, Prestige, and Mullins ("the operators"). For the 

reasons that follow, we conclude that the judge's finding that S&M 

discriminatorily discharged Keene for engaging in a protected refusal to 

work is supported by substantial evidence, but that the judge erred in 

finding that Prestige was a successor-in-interest to S&M and in finding 

that Mullins, as·an individual, discriminated against Keene. 

Accordingly, we affirm in part and reverse in part. 

I. 

From September 1985 through February 13, 1986, Keene was employed 

by S&M at its No. 4 underground mine in Tookland, Virginia, as a 

certified electrical repairman and maintenance foreman. Keene's duties 

included maintaining the electrical equipment in the mine and keeping 

the electrical examina~ion books for federal and state regulatory 

purposes. 2/ Prior to his arrival at S&M, Keene held a similar position 

at Mullins Coal Company until Tolbert Mullins, the president of Mullins 

Coal as well as S&M, requested that Keene transfer to S&M. 

Keene testified that during his employment at S&M he became 

concerned that "there was too much bridging going on." Dec. 2 Tr. 

38. 'J/ ("Bridging" or "bridging-out" is the practice of rewiring 

electrical equipment in order to bypass the equipment's disconnecting 

devices, usually the circuit breaker, thus rendering the safety features 

ineffective. Dec. 2 Tr. 38, 164.) According to Keene, two or three 

weeks prior to February 13, 1986, Mine Superintendent Monroe Nichols 

asked him on two separate occasions to bridge-out the ground fault 

monitor systems on the transformer and the continuous mining machine 

("continuous miner"). !!_/ Keene testified that he refused to bridge-out 

complaint under or related to this [Act], including 

a complaint notifying the operator or the operator's 

agent, or the representative of the miners at the 

coal or other mine of an alleged danger or safety or 

health violation in a coal or other mine •... 

30 U.S.C. § 815(c)(l). 

~/ 30 C.F.R. § 75.1804 provides that results of required examinations 

of electrical equipment be recorded in a book titled "Examination of 

Electrical Equipment." 

'J/ The hearing in this matter took place on December 2 and 3, 1986. 

Since the transcripts for-each day are separately paginated, transcript 

references are by date and page number. 

!!_/ According to Larry Brown, an electrical inspector for the 

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

1146 
the ground fault monitor systems on both occasions and made safety 

complaints about the use of the procedure to Nichols and Jerry Looney, 

the section foreman. 

At the beginning of the day shift on February 13, 1986, Keene 

again voiced his concerns about the practice of bridging, this time to 

the other crew members accompanying him into the mine. He told the 

miners that the "bridging was going to have to be stopped." Dec. 2 Tr. 

44, 116, 140. (One of the miners to whom Keene spoke, Darrell Matney, 

testified that prior to February 13 he had heard Keene make similar 

safety complaints and tell Nichols that if the bridging were not stopped 

"somebody's going to get killed. 11 Dec. 2 Tr. 138-40.) Around 10:30 

a.m., after the crew 3ad started to work, the circuit breaker of a 

continuous miner tripped, thereby rendering the equipment inoperative. 

Keene repaired the cable leading to the continuous miner and mining was 

resumed. Shortly thereafter, the circuit breaker at the transformer 

tripped and the continuous miner again was rendered inoperative. Keene 

twice attempted to reset the circuit breaker, but to no avail. Keene 

tested the cables and plugs with a voltmeter and, after determining that 

the cause of the short circuit was in the cable between a splice and the 

continuous miner, he informed Looney of his conclusion. According to 

Keene and Matney, Looney then instructed Keene to bridge-out the ground 

fault monitor system at the transformer. When Keene refused for safety 

reasons and insisted on repairing the cable, Looney told Keene to "get 

[his] bucket and go to the house." Dec. 3 Tr. 11-12; Dec. 2 Tr. S3, 

144. Understanding this to be a discharge, Keene left the section. ~/ 

However, before leaving, Keene told Looney that he planned to report the 

incident to MSHA. Dec. 3 Tr. 12. 

On his way out of the section, Keene met Mine Superintendent 

Nichols and told him that Looney had fired him for refusing to bridgeout the ground fault monitor system on the continuous miner. According 

to Keene, Nichols "laughed the matter off" and inquired as to whether 

Keene was certain there was a problem. Dec. 2 Tr. SS. Keene assured 

Nichols that there was a problem with the cable and informed him that he 

would report the matter to MSHA. 

The next day, February 14, 1986, Keene filed a complaint with MSHA 

alleging that he was discriminatorily discharged by S&M in violation of 

the ground fault monitor system is a small closed circuit that monitors 

the ground wire and is intended to protect miners from contacting 

electrical current. If a break in the ground occurs, the system 

interrupts current to the cable and the electrical equipment. Bridgingout the ground fault monitor system renders it useless as a protective 

device and potentially subjects anyone coming into contact with the 

equipment to a fatal electrical shock. Dec. 2 Tr. 162-64; see also id. 

at S7-58. 

~/ Both the Conunission and the Sixth Circuit Court of Appeals agree 

that this language is synonymous with a discharge in the mining 

industry. See, e.g., Moses v. Whitley Development Corp., 4 FMSHRC 1475, 

1479 (August 1982), aff'd sub nom. Whitley Development Corp. v. FMSHRC, 

No. 84-3375, slip op. at 2 (6th Cir. July 31, 1985). 

1147 
section 105(c)(l) of the Mine Act. MSHA initiated an investigation of 

the complaint. Prior to a conclusion by MSHA regarding the merits of 

the complaint and at the suggestion of MSHA's investigator, Keene 

telephoned Mullins on February 26, 1986, to discuss a possible 

resolution of the complaint. After discussing a monetary settlement, 

Keene and Mullins discussed Keene's returning to work at S&M. Mullins 

requested that Keene return to work at his previous position as a 

certified electrical repairman and maintenance foreman. Keene testified 

that, in response, he explained that he would not return to his old 

position because he did not want to be "responsible for the electrical 

[examination] books and conditions that everybody was bridging-out 

inside the mines." Dec. 2 Tr. 61. Keene further testified that when he 

requested a second shift job operating a shuttle car, Mullins replied 

that only Keene's original job as electrician on the day shift was 

available and that he could not pay electrician's wages to someone not 

doing an electrician's job. Keene testified that Mullins said that 

Keene would not have to record everything he saw or found in the 

examinations books. Keene summed up the conversation as follows: 

"[Mullins] told me that I would have to come back to my original job 

under the original circumstances I was working under .... I told [him] 

•.. that it was too big a hazard for me to come back as electrician on 

day shift." Dec. 2 Tr. 62-63. Therefore, Keene refused to return to 

work at S&M under the existing conditions. In May 1986, S&M was shut 

down due to economic conditions. 

Prestige, a surface coal mining operation, commenced mining on 

November 1, 1986, "in the same hollow, about a mile and a half up [from 

S&M] ... on the top of the mountain." Dec. 2 Tr. 196-97, 202-03. 

According to Mullins' testimony, he and his wife own all of S&M and 

about 55% of Prestige, with the remaining interest being owned by three 

other unrelated individuals. Prestige had been incorporated for more 

than a year, awaiting its strip mining permit, before it commenced 

operations. Dec. 3 Tr. 196. Prestige does not mine on the same lease 

as that mined by S&M, nor does it utilize any of S&M's equipment. Dec. 

3 Tr. 39. All of the equipment at Prestige's operation is diesel, 

rather than electrical, and a certified electrician is neither required 

nor employed. Dec. 3 Tr. 36. Of its eight employees, only two were 

previously employed at S&M. Dec. 3 Tr. 204. 

Subsequent to S&M's shutdown, MSHA concluded its investigation of 

Keene's complaint and determined that Keene had been unlawfully fired by 

S&M on February 13, 1986. Accordingly, the Secretary filed an action 

against S&M on Keene's behalf alleging that he was discharged by S&M for 

refusing to continue the illegal and unsafe practice of rendering safety 

features inoperative on electrical equipment. Subsequently, the 

Secretary moved, on August 4, 1986, for leave to file an amended 

complaint naming Tolbert Mullins, his wife, Shirley Mullins, and Jewell 

Smokeless Coal Corporation ("Jewell Smokeless") as additional 

respondents, alleging that they were liable for damages arising from the 

February 13, 1986, act of discrimination. The motion was granted but 

before the hearing Jewell Smokeless reached a settlement with Keene 

whereby it agreed to require any subsequent operator of the mine where 

Keene had worked to rehire him. Jewell Smokeless was dismissed from the 

proceeding. 

1148 
After a hearing, the administrative law judge concluded that Keene 

was improperly discharged in violation of the Act when he was given the 

choice of performing the illegal bridging-out procedure or leaving the 

section. 9 FMSHRC at 405. The judge found that Keene had a good faith, 

reasonable belief that the procedure was hazardous and that its inherent 

dangers "were obvious and admittedly known to both Looney and Nichols," 

thereby obviating any need for Keene "to further 'conununicate' the 

nature of the hazard to mine management." Id. 

The judge also found that Mullins, as a "person" within section 

105(c)(l), individually discriminated against Keene when Mullins 

"refus[ed] to.reemploy Keene except under illegal and dangerous 

conditions." 9 FMSHRC at 405-06. 

Finally, the judge found that, within the framework of the 

criteria set forth by the Commission in Munsey v. Smitty Baker Coal Co., 

Inc., 2 FMSHRC 3463 (1980), aff'd sub nom. Munsey v. FMSHRC, 595 F.2d 

735 (D.C. Cir. 1978), 701 F.2d 976 (D.C. Cir. 1983), cert. denied 464 

U.S. 857 (1983), Prestige, which had been added as an additional 

respondent at the beginning of the hearing, was a successor-in-interest 

to S&M and was thus jointly and severally liable for S&M's 

discriminatory actions. 9 FMSHRC at 406. 

To remedy the unlawful discrimination, the judge ordered S&M and 

Prestige, jointly and severally, to pay Keene costs and backpay with 

interest. The judge also ordered Mullins, jointly and severally with 

S&M and Prestige, to pay costs and backpay dating from Mullins' 

subsequent act of discrimination on February 26, 1986. The judge 

further ordered Prestige to hire Keene in a capacity conunensurate with 

his skills and at no less pay than he was receiving at the time of his 

discharge. S&M, Prestige, and Mullins, jointly and severally, were 

ordered to pay a civil penalty of $1,000. 9 FMSHRC at 407. 

II. 

The principal issues presented on review are whether Keene engaged 

in a protected work refusal on February 13, 1986, for which he was 

unlawfully discharged, whether Prestige is a successor-in-interest to 

S&M and is thereby jointly and severally liable for S&M's obligations to 

Keene arising from any such discriminatory actions, and whether Mullins, 

as an individual, discriminated against Keene. On review, the operators 

assert that the evidence is insufficient to support a finding that S&M 

and Mullins discriminated against Keene or that Prestige is a successorin-interest to S&M. 

The Commission's role in reviewing a judge's decision is to 

determine whether his factual findings are supported by substantial 

evidence and whether the judge correctly applied the law. 30 U.S.C. 

§ 823(d)(2)(A)(ii). See also Universal Camera Corp. v. NLRB, 340 U.S. 

474 (1951); Thurman v. Queen Anne Coal Company, 10 FMSHRC 131, 133 

(February 1988). The initial question is whether S&M discriminated 

against Keene by discharging him on February 13, 1986. The general 

principles governing analysis of discrimination cases under the Mine Act 

are settled. In order to establish a prima facie case of discrimination 

1149 
under section 105(c) of the Act, a complaining miner bears the burden of 

production and proof in establishing that (1) he engaged in protected 

activity arid (2) the adverse action complained of was motivated in any 

part by that protected activity. Secretary on behalf of 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 on behalf of Robinette v. United Castle 

Coal Co., 3 FMSHRC 817-18 (April 1981). The operator may rebut the 

prima facie case by showing either that no protected activity occurred 

or that the adverse action was in no part motivated by protected 

activity. If an operator cannot rebut the prima facie case in this 

manner, it nevertheless may defend affirmatively by proving that it also 

was motivated by the miner's unprotected activity and would have taken 

the adverse action in any event for the unprotected activity alone. 

Pasula, supra; Robinette, supra. See also Eastern Assoc. Coal Corp. v. 

FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford 

Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Baich v. 

FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically approving the 

Commission's Pasula-Robinette test). Cf. NLRB v. Transportation 

Management Corp., 462 U.S. 393, 397-413 (1983)(approving nearly 

identical test under National Labor Relations Act). 

The motivation for Keene's discharge is not disputed. All of the 

parties agree that Keene refused to perform the bridging-out procedure 

on February 13, 1986, and was discharged by the section foreman because 

of that refusal. The primary issue presented, therefore, is whether 

Keene's work refusal was protected under the Mine Act. If the work 

refusal was protected, the discharge was unlawful. See, e.g., Secretary 

of Labor v. Metric Constructors, Inc., 6 FMSHRC 226, 229-30 (February 

1984), aff'd sub nom. Brock v. Metric Constructors, Inc., 766 F.2d 469, 

472-73 (11th Cir. 1985); Secretary on behalf of Dunmire & Estle v. 

Northern Coal Co., 4 FMSHRC 126, 132-33 (February 1982); Smith v. Reco, 

Inc., 9 FMSHRC 992, 994-95 (June 1987). 

A miner has the right under section 105(c) of the Mine Act to 

refuse to work if the miner has a good faith, reasonable belief that 

continued work involves a hazardous condition. Pasula, supra, 2 FMSHRC 

at 2789-96; Robinette, supra, 3 FMSHRC at 807-12. See also, e.g., 

Metric Constructors, supra. Where reasonably possible, a miner refusing 

to work ordinarily must communicate or attempt to communicate to some 

representative of the operator his belief that a hazardous condition 

exists. Reco, supra, 9 FMSHRC at 995; Dunmire & Estle, supra, 4 FMSHRC 

at 133-35. See also Miller v. Consolidation Coal Co., 687 F.2d 194, 

195-97 (7th Cir. 1982)(approving Dunmire & Estle communication 

requirement). 

Keene testified that he was concerned about the continued practice 

of bridging-out electrical equipment because anyone touching bridged-out 

equipment could be electrocuted. MSHA's electrical inspector, Larry 

Brown, confirmed that individuals who contact bridged-out electrical 

equipment risk fatal electrical shock. Brown testified without dispute 

that bridging-out is violative of two mandatory safety standards, 

1150 
30 C.F.R. § 75.900 and § 75.902. ~/ There is no suggestion in the 

record that Keene's fear of bridging-out electrical equipment was not 

real. Given Keene's testimony about his safety concerns, and the 

inspector's confirmation that the practice of bridging-out electrical 

equipment can have serious, even fatal, consequences for miners, we hold 

that substantial evidence supports the judge's conclusion that Keene 

"entertained a good faith and reasonable belief that the procedure of 

'bridging' was hazardous to himself or to anyone coming into contact 

with the 'bridged-out' miner." 9 FMSHRC at 405. 

We also conclude that Keene met the Act's communication requirement. The judge found that the dangers inherent in bridging-out 

electrical equipment were obvious and admittedly known to the management 

of S&M and concluded that under these circumstances there was no need 

for Keene to "further 'communicate' the nature of the hazard to S&M." 

9 FMSHRC at 405. Substantial evidence supports this finding. The 

testimony of Section Foreman Looney and Mine Superintendent Nichols 

reveals that mine management had sanctioned a practice it knew to be 

hazardous and violative of mandatory safety standards. Dec. 3 Tr. 12; 

Dec. 2 Tr. 227-28. In addition, Keene had previously expressed, but to 

no avail, his safety concerns regarding the practice. The Mine Act does 

not require a miner refusing work to communicate his belief in the 

health or safety hazard at issue if such communication would be futile. 

Dunmire & Estle, supra, 4 FMSHRC at 133. Thus, we agree with the judge 

that in the face of such an obvious and admittedly known safety hazard, 

there was no requirement that Keene further communicate his safety 

concerns to the operator on February 13, 1986. 

We conclude, therefore, that there is substantial evidence to 

support the judge's finding that Keene had a good faith, reasonable 

belief in a hazardous condition and that he communicated his safety 

concerns to S&M. As a result, Keene engaged in a protected work 

~/ 30 C.F.R. § 75.900, which restates 30 U.S.C. § 869(a), provides: 

Low- and medium-voltage power circuits serving 

three-phase alternating current equipment shall be 

protected by suitable circuit breakers of adequate 

interrupting capacity which are properly tested and 

maintained as prescribed by the Secretary. Such 

breakers shall be equipped with devices to provide 

protection against undervoltage, grounded phase, 

short circuit, and overcurrent. 

30 C.F.R. § 75.902, which restates 30 U.S.C. § 869(c), provides in 

pertinent part: 

[L]ow- and medium-voltage resistance grounded 

systems shall include a fail-safe ground check 

circuit to monitor continuously the grounding 

circuit to assure continuity which ground check 

circuit shall cause the circuit breaker to open when 

either the ground or pilot check wire is broken .... 

1151 
refusal. See also Secretary on behalf of Cameron v. Consolidation Coal 

Co., 7 FMSHRC 319, 321 (March 1985), aff'd sub nom .• Consolidation Coal 

c;:- v. FMSHRC, 795 F.2d 364, 367-68 (4th Cir. 1986)(Mine Act extends 

protection against discrimination to miner who refuses to perform an 

assigned task because such performance would endanger the health or 

safety of another miner). Therefore, we hold that Keene was 

discriminatorily discharged by S&M on February 13, 1986. 

III. 

The next question is whether the judge properly found Prestige to 

be jointly and severally liable for S&M's unlawful act of discrimination 

as a successor-in-interest to S&M. The Commission has recognized that 

in certain cases the imposition of liability on a successpr is 

appropriate. Munsey, supra; Secretary on behalf of Corbin v. Sugartree 

Corp., 9 FMSHRC 394 (March 1987), aff'd sub nom. Terco v. FMSHRC, 839 

F.2d 236 (6th Cir. 1987). 

However, before the appropriateness of imposing liability can be 

resolved, it is necessary in the first instance to determine whether 

Prestige is even a successor. In the cases in which the Commission and 

the courts have found successorship liability there has been some type 

of transaction (a "transactional element") with respect to the business 

between the predecessor and the entity against which liability is being 

asserted and/or there has been a continuation of activity at the 

predecessor's site. In Munsey, supra, for example, the company that was 

held liable as a successor had acquired leases and mining equipment from 

the former employer, substantially replacing the predecessor's 

operation. Similarly, in Terco, supra, successorship liability attached 

because there was substantial continuity of business interests at the 

same site. 

Assumption of the predecessor's position by the successor 

underlies the successorship cases. For example, in Wiley & Sons v. 

Livingston, 376 U.S. 543 (1964), successorship was found where the 

predecessor company was merged into the acquiring company, a process 

that also involved the wholesale transfer of the predecessor's employees 

to the successor. The Court observed that for an employer to be 

considered a successor, there must be a substantial continuity in the 

identity of the business enterprise before and after a change, Wiley, 

supra, 376 U.S. at 551. Another example of the acquisition element 

underlying these cases can be found in Golden State Bottling Co. v. 

NLRB, 414 U.S. 168, (1973) which involved a bona fide purchase of a 

company that had committed an unfair labor practice. Issuance of a 

reinstatement and back-pay order was upheld against the acquiring 

company, which occupied the site where the unfair practice had occurred. 

In this case there has been no transactional element nor has there 

been a continuation of activity at the same site. Rather, Prestige is a 

pre-existing company that commenced mining some months lat.er at a 

different site on a lease owned by a different, unrelated company, using 

equipment that was not acquired from, nor previously used by, S&M. 

Thus, Prestige cannot be considered to be a successor and it cannot 

properly be assessed with successorship liability. 

1152 
However, even if Prestige had occupied the status of a successor, 

we would still conclude that it should not be held liable for the 

consequences of S&M's act of discrimination. In determining whether a 

successor should be liable to remedy the unlawful discrimination of its 

predecessor, the Commission has followed the courts and has approved 

consideration of nine specific factors: 

(1) whether the successor company had notice of the 

charge, (2) the ability of the predecessor to 

provide relief, (3) whether there has been a 

substantial continuity of business operations, 

(4) whether the new employer uses the same plant, 

(5) whether he uses the same or substantially the 

same work force, (6) whether he uses the same or 

substantially the same supervisory personnel, 

(7) whether the same jobs exist under substantially 

the same working conditions, (8) whether he uses the 

same machinery, equipment and methods of production 

and (9) whether he produces the same products. 

2 FMSHRC at 3465-66 (restating factors set forth in EEOC v. MacMillan 

Bloedel Containers, Inc., 503 F.2d 1086, 1094 (6th Cir. 1974)); see also 

Terco, supra, 839 F.2d at 238-39. These similar factors have been 

applied under both the Civil Rights Act of 1964 (~, MacMillan 

Bloedel, supra) and the National Labor Relations Act (~, NLRB v. 

Winco Petroleum Co., 668 F.2d 973, 976-78 (8th Cir. 1982)). 

As pointed out in Munsey, supra, 2 FMSHRC at 3467, and Sugartree, 

supra, 9 FMSHRC at 398, the key factor for determining successorship 

liability is whether there is a substantial continuity of business 

operations. This question is fact intensive and must be resolved on a 

case-by-case basis. Howard Johnson, Inc. v. Detroit Local Joint 

Executive Board, 417 U.S. 249, 256 (1974). In Sugartree, 9 FMSHRC at 

398, the Commission emphasized that factors (3) through (9) provide the 

framework for analyzing whether there is a continuity of business 

operations and work force between the successor and its predecessor. 

Reviewing these factors in the context of this case, we conclude that 

substantial evidence does not support a finding that a substantial 

continuity of business operations exists between S&M and Prestige. 

Prestige is a surface mining operation whereas S&M was an 

underground operation. Prestige's mine is located a mile and a half 

from S&M's mine and Prestige mines under a different coal lease. 

Moreover, the judge found that only two of Prestige's eight employees 

were employed previously by S&M. 9 FMSHRC at 406. (While the judge 

also found that Monroe Nichols, the supervisor at S&M, is the supervisor 

at Prestige, the record does not support such a finding. Zf) Therefore, 

not only do S&M and Prestige have different physical operations, 

Prestige does not use the same or substantially the same work force or 

ZI There was no testimony as to Nichols' actual job at Prestige. 

Tolbert Mullins testified that another individual holds the position of 

supervisor. Dec. 2 Tr. 215. 

1153 
supervisory personnel as S&M. Furthermore, the judge found that the 

machinery, _equipment, and mining methods of Prestige and S&M are not the 

same and that the specific jobs differ between the two mining 

operations. 9 FMSHRC at 406. In spite of this finding, and, in spite 

of the uncontradicted testimony that a certified electrician was neither 

required nor employed, the judge· concluded that "many of the [job] 

skills are transferable." Id. The record contains no evidentiary 

support for this conclusion. ~/ 

As previously noted, there has been no purchase or any other 

transaction or activity between Prestige and S&M with respect to S&M's 

business operations, assets, or stock as is frequently the situation in 

successorship cases. See, e.g., Howard Johnson, supra (successor was 

bona fide purchaser of assets of a restaurant and motor lodge); Wiley, 

supra (predecessor disappeared through a merger); Sugartree, supra 

(predecessor's leases were acquired). The doctrine of successorship 

liability was not intended to encompass a situation such as in this case 

where the record establishes that the alleged successor does not share 

with the predecessor the same physical plant, substantially the same 

work force, the same machinery, equipment, or methods of production, the 

same jobs and job skills, or the same business operations. While our 

dissenting colleague emphasizes the control that Mullins exercises over 

both S&M and Prestige and the interrelationship between the two 

corporations, those factors go not to the issue of successorship but 

rather to an alter-ego theory of liability in which the corporate veil 

is pierced in order to reach the controlling shareholder. The Secretary 

withdrew that theory of liability at the hearing (Dec. 3 Tr. 71), the 

judge made no finding of fact with respect to it, and it is not before 

us on review. Accordingly, we reverse the judge's finding that Prestige 

is a successor-in-interest to S&M and is jointly and severally liable 

for remedying S&M's illegal act of discrimination. 

IV. 

The final issue is whether Mullins is individually liable for 

discriminating against Keene in violation of section lOS(c)(l) of the 

Act. The judge accepted Keene's testimony that during the telephone 

conversation of February 26, 1986, initiated by Keene at MSHA's 

suggestion, Mullins told Keene that he could return to work as an 

electrician and that Keene would not have to report instances of 

bridged-out electrical equipment in the electrical examination books. 

9 FMSHRC at 406. On this basis, the judge found that Mullins, as an 

individual, was a "person" discriminating against Keene by "refus[ing] 

to reemploy Keene except under illegal and dangerous conditions." 

Id. 21 We hold that substantial evidence does not support the judge's 

~/ Although Prestige, through Mullins, had notice of the charge of 

discrimination, and although S&M and Prestige both mine coal, these 

factors along with S&M's inability to provide relief do not counterbalance a determination that there exists no continuity of business 

operations between S&M and Prestige. 

21 During closing arguments, in a colloquy concerning the Secretary's 

1154 
finding that Mullins as a "person" unlawfully discriminated against 

Keene •. 

According to Keene, he had, at MSHA's suggestion, approached 

Mullins to discuss a possible settlement of his discrimination complaint 

against S&M. When a monetary solution of the complaint could not be 

reached, the subject of Keene's possible return to work was discussed. 

Keene's testimony reveals a request by him for a second shift job and a 

response by Mullins that no second shift jobs were available. Mullins 

then offered Keene his old job back under the same circumstances and 

suggested to him that he would not have to record everything that he 

found. Wh1le this offer did not resolve Keene's safety concerns, 

neither did it suggest any additional adverse action against Keene by 

Mullins, either in his role as president of S&M or outside of that role. 

We find no evidence that would cause the conversation to be 

characterized as anything other than an attempt by Keene and Mullins, in 

his role as president of S&M, to settle the original discrimination 

complaint. That their negotiations were unsuccessful does not change 

their character as settlement negotiations between Keene and S&M. Thus, 

we view this conversation as an outgrowth of the original illegal 

discharge by S&M and not as a separate act of unlawful discrimination by 

Mullins individually. Under these circumstances, we hold that Keene's 

testimony regarding the crucial aspects of the conversation does not 

support a finding by the judge of a separate act of discrimination by 

Mullins individually. 

For the reasons stated above, we conclude that Keene was 

discriminatorily discharged by S&M for engaging in a protected work 

refusal on February 13, 1986. We also hold that Prestige is not a 

successor-in-interest to S&M and is not jointly or severally liable for 

the consequences of S&~'s discriminatory discharge. Finally, we 

conclude that the judge erred in holding that Mullins personally 

discriminated against Keene during the telephone conversation 0f 

February 26, 1986. 

We recognize that our conclusion requires Keene to seek his remedy 

solely against S&M, which discontinued operations and is without liquid 

assets. The fact that Mullins, individually, and Prestige may be better 

able to provide relief does not justify a finding of individual 

liability against Mullins, where it is not supported by substantial 

evidence, nor a finding of successorship liability against Prestige 

where no substantial continuity of business operations exists. 

Accordingly, the judge's decision is affirmed in part and reversed 

in part. That portion of the judge's order requiring Prestige and 

Mullins to pay costs, backpay, interest, and a civil penalty for the 

theories of liability, the judge suggested to the Secretary's counsel 

that the telephone conversation between Mullins and Keene provided a 

basis for establishing Mullins' personal liability apart from S&M's 

prior discriminatory actions. Dec. 3 Tr. 64-65. It was during this 

same colloquy that the Secretary's counsel stated that she was 

abandoning the claim that Mullins was liable for S&M's discriminato~y 

acts on an alter-ego theory. Dec. 3 Tr. 70. 

1155 
violation of section lOS(c) is vacated, as is that portion requiring 

Prestige to hire Keene. 

~d-~- .YC~le, c7E_iSSiOT • '.J (} I 

, '_..a.__~1 ~-<.'-vv 

L. Clair Nelson, Connnissioner 

1156 
Lastowka, Commissioner, concurring in part and dissenting in part: 

I agree with the majority that substantial evidence supports the 

factual findings underlying the judge's conclusion that Bobby G. Keene 

was illegally discharged for engaging in a work refusal protected by the 

Mine Act. In fact, the evidence in this record concerning the illegal 

and dangerous practice of bridging out electrical equipment at the S&M 

Mine is overwhelming. 1/ In refusing to carry out this unsafe and illegal 

act, Keene acted in a manner consistent with the dictates of the Mine Act. 

As a consequence, however, he lost his job. 

Although the majority upholds the judge's finding of illegal discrimination, Keene's victory proves purely pyrrhic. By vacating the judge's 

findings that Tolbert Mullins personally discriminated against Keene and that 

Prestige Coal Company is a successor to S&M, the majority effectively denies 

Keene any remedy for the wrong they agree he has suffered. In doing so the 

majority not only usurps the fact-finding role of the administrative law judge, 

but also adopts a far too restrictive view of the reach of the Mine Act's antidiscrimination provision and the remedies available thereunder. Accordingly, 

I dissent from those parts of the majority decision reversing the decision of 

the administrative law judge. 

I. 

The Individual Liability of Tolbert Mullins 

In their analysis of the issues presented by this case the majority 

first resolves a question of remedy, i.e., successorship, before determining the extent of the illegal discrimination suffered by Keene. Before 

the question of "who owes what" to Keene can be determined, however, it 

must first be determined "who did what" to him. Therefore, I will first 

1/ The judge accurately described the serious nature of the violation as 

follows: 

I find the acts of discrimination by S&M and Tolbert 

Mullins to be particularly serious in this case because 

of the direct impact they had on the safety of miners. 

Here the practice of bridging-out safety features on 

electrical equipment continued unabated after the discharge of Mr. Keene and after his discharge it was 

highly unlikely that anyone else would have protested 

the dangerous practice. In addition Mr. Mullins and 

the other S&M officials knew that they were requiring 

Keene to perform illegal and dangerous acts. Their 

discharge (and refusal to take back) Keene for refusing 

to perform such tasks was therefore willful. 

9 FMSHRC at 407. 

1157 
address the question of Mullins' personal liability for a separate act of 

discriminatio~ against Keene. On this issue the judge stated: 

The Complainant in this case also alleges that Tolbert 

Mullins is individually liable as a "person" unlawfully 

discriminating against him under section 105(c)(l) •••• 

According to Keene, on February 26, 1986, he telephoned 

Mr. Mullins at the request of the MSHA investigator in 

efforts to settle the case. Keene says that during the 

course of this conversation Mullins told him that he 

could have his job back but only as an electrician. Moreover in response to Keene's concerns about the illegal 

practice at S&M of "bridging-out" electrical equipment 

Mullins purportedly responded that Keene would not have 

to report the practice in the electrical inspection 

books. */ This conversational exchange is not disputed 

and accordingly I accept Keene's testimony in this 

regard. This evidence clearly supports a finding that 

Mullins, as an individual, was a "person" discriminating 

against Keene in violation of the Act in his refusal to 

reemploy Keene except under illegal and dangerous 

conditions. See Munsey v. Smitty Baker Coal Company, 

Inc. ,et al, 2 FMSHRC 3463 (1980). 

*/ It is undisputed that Keene as a certified electrician 

would be legally required to report such violative conditions in the electrical inspection books. 

9 FMSHR.C at 405-406. 

The only challenge to this portion of the judge's decision raised by 

Mullins in his petition for discretionary review is that Keene's version 

of the telephone conversation was, in fact, disputed. Testimony by Mullins 

concerning the telephone conversation is cited as creating a dispute as to 

its contents. Petition for Review at 3. In his brief on review Mullins 

simply reiterates this bare-bones factual challenge. Brief at 5. 

Thus, Mullins has argued only on the factual basis that, contrary to the 

judge's finding, the content of the conversation was not as Keene had related. 

The judge, however, resolved this factual question in favor of Keene. Under 

the Mine Act credibility determinations are the province of the trier of fact 

(e.g., Hall v. Clinchfield Coal Co., 8 FMSHR.C 1624, 1629-30 (November 1986)), 

and we are bound by a substantial evidence standard of review. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(I). Donovan on behalf of Chacon v. Phelps Dodge Corp., 

709 F.2d 86 (D.C. Cir. 1983). Measured against these standards, Mullins 

has presented no compelling argument for overturning the factual findings 

of the judge concerning the telephone conversation. 

The majority goes further, however, and bases their reversal of the 

judge's finding that Mullins personally discriminated against Keene on the 

fact that Mullins' act of discrimination occurred during an attempt to settle 

Keene's complaint. The majority characterizes Mullins' act as a mere 

"outgrowth of the original illegal discharge by S&M and not as a separate 

act of unlawful discrimination by Mullins individually." Slip op. at U. 

1158 
Because this argument was never raised by Mullins, the issue is not 

properly before the Commission. The Mine Act expressly limits the Commission's authority in reviewing administrative law judges' decisions to only 

those· questions raised by a party in its petition for review (30 U.S.C. 

§§ 823(d)(2)(A)(iii)) unless the Commission itself expressly identifies 

additional issues for review in accordance with the procedures set forth in 

30 U.S.C. § 823(d)(2)(B). Donovan on behalf of Chacon v. Phelps Dodge Corp., 

supra, 709 F.2d 86, at 90-92. The Commission did not direct review sua 

sponte of any additional issues. Therefore, the majority errs in basing 

their reversal of the judge on an issue not raised by the parties and 

appearing as an issue for the first time in their decision. 

In any event, I cannot agree with their view that because an act of 

illegal discrimination was committed while Keene was attempting to resolve 

his safety complaint short of litigation, it falls outside the reach of 

section 105(c). Given the administrative law judge's supported finding that 

Keene's return to work was conditioned by Mullins on Keene's not reporting 

hazardous conditions or illegal activities, surely Mullins' act contravenes 

section 105(c)'s mandate that "[n]o person shall ••• interfere with the exercise of the statutory rights of any miner ••• or applicant for employment •••• " 

30 U.S.C. § 815(c). The legislative history underlying section 105(c) emphasizes that the section "is to be construed expansively to assure that miners 

will not be inhibited in any way in exercising any rights afforded by the 

"[Mine Act]" and that it was Congress' intent "to protect miners against not 

only the common forms of discrimination ••• but also against the more subtle 

forms of interference •••• " S. Rep. 95-191, 95th Cong., 1st Sess. 36 (1977), 

reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th 

Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act 

of 1977, at 624 (1978)(emphasis added). Congress further "emphasized that the 

prohibition against discrimination applies not only to the operator but to any 

person directly or indirectly involved." Id. (emphasis added). Thus, in view 

of the intended broad reach of section 105(c), the fact that Mullins' illegal 

act occurred during the course of a discussion to determine whether a prior 

illegal act could be remedied out of court can in no way serve as a shield 

protecting Mullins from the application of section 105(c). Such a result 

not only controverts section 105(c), but also perverts the Act's settlement 

process and flies in the face of sound public policy. ];_/ 

In sum, the majority errs in sua sponte interjecting an issue not properly before the Commission and then incorrectly resolving the issue raised. 

In the end, the question of Mullins' personal liability for his violation of 

section 105(c) boils down to nothing more than a substantial evidence question. 

The judge's conclusion crediting Keene's version of the conversation over 

Mullins' has support in the record and rests on credibility grounds. The 

majority therefore errs in substituting its judgment for that of the trier 

of fact. Donovan on behalf of Chacon v. Phelps Dodge Corp., supra, 709 F.2d 

at 94. 

2/ Concluding that an illegal act committed during a settlement discussion 

can form the basis for a separate cause of action does not, as the majority 

may feel, "chill" the settlement process. Proper settlements can not be 

conditioned on illegal terms. The practical impact, if any, of refusing to 

except settlement discussions from the reach of section 105(c) is that proper 

settlements will go forward, improper settlements will not. That is as it 

should be. 

1159 
II. 

Prestige Coal Company's Liability 

The administrative law judge held Prestige Coal Company jointly and 

severally liable to Keene for costs, damages and reinstatement as a 

successor-in-interest to S&M. In reaching this conclusion the judge followed the framework for analysis of successorship issues set forth by the 

Commission in Munsey v. Smitty Baker Coal Co., 2 FMSHRC 3463 (1980), aff'd 

in relevant part sub nom. Munsey v. FMSHRC, 701 F.2d 976 (D.C. Cir. 1981), 

and Secretary on behalf of Corbin v. Sugartree Corp., 9 FMSHRC 394 (1987), 

aff'd sub nom. Terco v. FMSHRC, 839 F.2d 236 (6th Cir. 1987), petition for 

cert. fIIecr,-56 U.S.L.W. 3770 (U.S. April 5, 1988)(No. 87-1808). Specifically, the judge applied the nine-factor successorship test set forth in 

EEOC v. MacMillan Bloedel Containers, 503 F.2d 1086 (6th Cir. 1974), which 

the Commission adopted in Munsey and followed in Sugartree and found based 

on the evidence that Prestige was liable as S&M's successor. 

As previously discussed, in reviewing an administrative law judge's 

findings of fact the Mine Act imposes on the Commission a substantial evidence standard of review. 30 U.S.C. § 823(d)(2)(A)(ii)(I). The question 

of whether Prestige is a successor to S&M is a question of fact subject to 

review under the substantial evidence standard. See Fall River Dyeing & 

Finishing Corp. v. NLRB, U.S. , 107 ~Ct. 2225, 2235, 96 

L.Ed. 2nd 22, 37 (1987); Terco v. FMSHRC, 839 F.2d at 240. Therefore, the 

Commission's "task is to determine whether the record contains 'such relevant evidence as a reasonable mind might accept as adequate to support [the 

judge's] conclusion."' Mid-Continent Resources, 6 FMSHRC 1132, 1137 (May 

1984), quoting Consolidation Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); 

~also, Donovan on behalf of Chacon v. Pheyps Dodge Corp., supra. Measured 

against this standard, the judge's finding that Prestige was a successor to 

S&M is supported by substantial evidence and must be affirmed. 

The nine-factor test guiding resolution of successorship issues includes 

consideration of the following: (1) whether the successor company had notice 

of the charge; (2) the ability of the predecessor to provide relief; (3) 

whether there has been a substantial continuity of business operations; (4) 

whether the new employer uses the same plant; (5) whether it uses the same 

or substantially the same work force; (6) whether it uses the same or substantially the same supervisory personnel; (7) whether the same jobs exist 

under substantially the same working conditions; (8) whether it uses the 

same machinery, equipment, and methods of production; and (9) whether it 

produces the same products. Sugartree, supra, 9 FMSHRC at 397-398. 

In the present case the administrative law judge evaluated the evidence, 

applied this test, and concluded that Prestige should be held liable as a 

successor to S&M. Specifically, the judge found: 

In this case there is no dispute that Prestige continues 

to produce the same product as S&M i.e., coal. It is 

also apparent from the record that Tolbert Mullins as 

president and part owner of both S&M and Prestige (and 

1160 
therefore as agent for both companies) was in a position 

to have notice on behalf of Prestige of the charges by 

the Complainant in this case. It is also established 

that S&M is not able to provide adequate relief to the 

Complainant in this case. It is no longer in business 

and has no liquid assets. Moreover its only unpledged 

assets consist of old mining equipment having but little 

value as parts and scrap metal and having limited 

marketability. 

Of the eight employees presently working at Prestige 

only two formerly worked for S&M. However one of the 

two employees, Monroe Nichols, was a supervisor at S&M 

and is a supervisor at Prestige. The Prestige mine is 

a surface mine and S&M was an underground mine. Accordingly the machinery, equipment and methods of production 

differ. The specific jobs at Prestige are also different 

but many of the skills are transferable. Within this framework, I find on balance that indeed Prestige is a successorin-interest to S&M and accordingly is jointly and severally 

liable for costs, damages, reinstatement and civil penalties. 

9 FMSHRC at 406. 

The grounds advanced by the majority for reversing the judge's findings 

for the most part constitute nothing more than an unvarnished reweighing 

of the evidence. Slip op. at 9-10. Perhaps if the Commission possessed 

de novo fact finding authority, a finding of nonsuccessorship on these 

factse"ould also be justified. In our review capacity, however, we are 

bound by the narrow substantial evidence standard and the majority's substitution of its findings for those of the judge is erroneous. Donovan v. 

Phelps Dodge Corp., supra, 709 F.2d at 92. 

The majority also expresses concern that there was no direct business 

transaction transferring the assets or operations of S&M to Prestige. Slip 

op~ at 10. The majority must be aware, however, that in Sugartree the Commission expressly rejected the need for a purchase of assets or stock in 

successorship situations and that in affirming the Commission the Sixth 

Circuit stated that "[i]n fact ••• the lack of a sale may actually indicate 

that the predecessor and successor corporations are so closely linked that 

arms length dealings as usually occur during a sale never occur nor are they 

necessary." Terco, 839 F.2d at 239-240; Sugartree, 9 FMSHRC at 399. As 

detailed below, the lack of any need for arms length dealings between S&M 

and Prestige is apparent from the present record. 

The record makes clear that Tolbert Mullins controls, in fact and in 

practice, both S&M and Prestige. Mullins is president of both S&M and 

Prestige. Vol. I Tr. 190, 196. He is the only director of Prestige. 

Vol. I Tr. at 200. His wife, Shirley Mullins is secretary-treasurer of 

both S&M and Prestige. Vol. I Tr. 196. They were the sole officers of 

both companies. Vol. I Tr. 21, 22. Mullins owns 90 percent of the 

stock of S&M. Vol. I Tr. 190. Shirley Mullins owns the remaining 10 

percent. Vol. I Tr. 21. Under questioning, Tolbert Mullins' estimates of 

1161 
the amount of his stock ownership of Prestige progressively increased from 

40 percent, to 45 percent, and appears to have settled at 50 percent. 

Vol. I Tr. 197, 202. In addition, Shirley Mullins owns 10 percent of 

Prestige. Vol. I Tr. 199, 206. Mullins' daughter did the payroll for 

Prestige. Vol. I Tr. 205. At the hearing, when the administrative law 

judge granted the Secretary's motion to join Prestige as a respondent and 

suggested that a continuance might be in order, the Mullins, on behalf of 

Prestige, authorized the hearing to proceed and authorized the attorney 

representing S&M to also represent Prestige. Vol. I Tr. 23-24. 

In Sugartree the Commission observed that "successorship transactions 

may assume many fo.rms and liability may obtain in a number of business 

contexts." 9 FMSHRC at 399. Given the degree of Mullins' control of both 

S&M and Prestige, and the fact that both companies engage in coal mining 

in very close proximity to each other, the present situation is a strikingly 

appropriate context for a successorship finding. 3/ Although in most successorship situations a successor succeeds to a predecessor's operation at 

the same locus, no different result need obtain here where the mine sites are 

a mile and a half apart. Unlike a manufacturing plant which produces goods 

or a business which provides services, a mine extracts minerals from an ore 

body that is present at a specific location in a finite supply. Thus, as a 

matter of course, mines are projected to open and close as the mining cycle 

is completed and the ore body is exhausted. As a consequence, the mere fact 

that Prestige began mining operations at a mining.site located a mile and a 

half from the site where the discriminatory act occurred should not bar a 

successorship finding. 

Courts have emphasized that the successorship test is not meant to be a 

rigid formula resulting in a preordained result once information concerning 

each of the variables is plugged in. Rather, the test is intended as an aid 

for evaluating the facts and circumstances of each case and for balancing the 

competing interests present in a variety of contexts. Different elements of 

the test may be more important in different situations, but the primary concern always is to find a fair way for fulfilling a national policy. Successorship principles were developed to address issues arising under the National 

Labor Relations Act such as whether a successor who was not involved in its 

predecessor's unfair labor practice should nevertheless be required to provide 

a remedy. See e.g., Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973). 

There the Court balanced factors such as the federal policy of avoiding labor 

strife, the prevention of the chilling of the exercise of protected rights, 

and the protection of victimized employees against the costs sought to be 

imposed on the successor. See also Howard Johnson Co. v. Hotel Employees, 

417 U.S. 249 (1974); NLRB v. Burns International Security Services, 406 U.S. 

272 (1972). When these basic concepts were later extended to other contexts, 

3/ Contrary to the majority's suggestion, my recounting of the degree of 

Mullins' control over both S&M and Prestige is not directed at the alter ego 

theory of liability abandoned by the Secretary. See slip op. at 10. Rather, 

my quite distinct purpose is to demonstrate that the part of the successorship balancing test that is directed at determining the fairness of the 

obligation sought to be imposed on an "innocent" successor weighs heavily 

against Mullins, who himself discriminated against Keene and, by virtue of 

his control, is in a position to provide full relief through employmen~ at 

Prestige. 

11 r.. ?. 
such as employment discrimination cases, the courts have built upon, extended 

and modified these basic principles to adapt them to the particular circumstances and goals of other national policies. See e.g., Musikiwamba v. ESSI, 

Inc.,. 760 F.2d 740, 750 (7th Cir. 1985) (Civil Rights Act of 1866, 42 U.S.C. 

"'§1:'981); EEOC v. MacMillan Bloedel Containers, 503 F.2d 1086 (6th Cir. 1974) 

(Title VII of Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq.). Thus, the 

principle of successorship can and should be tailored as needed to advance the 

goals of the Mine Act, particularly where, as here, an individual's use of 

"hip-pocket" corporations, not an uncommon occurrence in the coal mining 

industry, would otherwise allow effective evasion of the Mine Act's regulatory 

and remedial requirements. 

In the end our task in the successorship context is to review the facts 

and to balance the national policy of protecting the health and safety of 

miners, the individual interests of the injured miner, and the harm done to 

and the costs imposed on the successor employer. Here, a blatant violation 

of the anti-discrimination provision of the Mine Act occurred and no relief 

is available through the responsible corporate entity. Full relief is 

available, however, through a company controlled by the same individual, 

engaged in the same business, in the same locale. Most importantly, Tolbert 

Mullins comes before us, not as an innocent party, but as a person who himself 

committed an act of illegal discrimination. In these circumstances, the 

balancing process can only tilt in favor of a finding of successorship 

liability. 

Finally, assuming for the sake of argument that Prestige were found not 

to be a successor, a more fundamental basis is available for ordering Prestige 

to remedy the section 105(c) violation in this case. Section 105(c)(2) of the 

Mine Act requires a violator of section 105(c) to "take such affirmative action 

to abate the violation as the Commission deems appropriate, including, but not 

limited to, the rehiring-or-r-einstatement of the miner to his former position 

with back pay and interest." 30 U.S.C. 815(c)(2)(emphasis added). In explaining this broad grant of authority Congress stated: 

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. 

Legis. Hist, supra, at 625. 

In exercising our authority to fashion appropriate relief, the Commission 

has stated that "remedies in discrimination cases should be suited to the individual facts of each case and designed to eliminate the effects of illegal 

discrimination." Munsey, supra, 2 FMSHRC at 3464. In ~runsey, the Commission 

ordered the discriminatee, Glenn }funsey, to be reinstated at a mine different 

from the mine at which he had been working when he was illegally discharged. 

The Commission ordered reinstatement at the new mine not on the theory that 

the mining company was a successor to Munsey's previous employer, but rather 

because the new mine was owned and operated by an individual who, in his 

1163 
capacity as general manager at the former mining operation, had illegally 

discriminated against Munsey. The Commission determined that reinstatement 

of Munsey at a different mine was "an appropriate remedy [under section 

105(c)] in order to fully compensate Munsey for the effects of the illegal 

discrimination he suffered." 2 FMSHRC 3464. The same rationale for ordering 

Prestige to provide remedial relief to Keene is available and appropriate here. 

For these reasons, I dissent from the majo~ity's decision reversing 

the judge's findings that Tolbert Mullins is liable for a separate act of 

discrimination and that Prestige Coal Company is jointly and severally 

liable for the damages and relief due Bobby G. Keene. 

Distribution 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Daniel R. Beiger, Esq. 

E. Gay Leonard, Esq. 

Copeland, Molinary & Beiger 

P.O. Box 1296 

Abingdon, VA 24210 

1164 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

KAISER COAL CORPORATION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

September 27, 1988 

Docket No. WEST 88-131-R 

UNITED MINE WORKERS OF AMERICA 

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

Conunissioners 

DECISION 

BY THE COMMISSION: 

The controlling question presented in this matter is whether the 

Commission has jurisdiction to entertain an application for declaratory 

relief independent of any of the enforcement or contest proceedings or 

other forms of action authorized under the Federal Mine Safety and 

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

"Act"). Conunission Administrative Law Judge Gary Melick concluded that 

he had jurisdiction to consider Kaiser Coal Corporation's ("Kaiser") 

application pursuant to section S(d) of the Administrative Procedure 

Act, 5 U.S.C. § 551 et seq. (1982)("APA"), and section 113(d)(l) of the 

Mine Act. l/ The judge denied Kaiser's application, however, on the 

ll Section S(d) of the APA states: "The agency, with like effect as 

in the case of other orders, and in its sound discretion, may issue a 

declaratory order to terminate a controversy or remove uncertainty." 

5 U.S.C. § 554(e) (1982). 

Section 113(d)(l) of the Mine Act states: 

An administrative law judge appointed by the 

Commission to hear matters under this [Act] shall 

hear, and make a determination upon, any proceeding 

instituted before the Commission and any motion in 

1165 
grounds that the circumstances surrounding the application rendered an 

award of declaratory relief inappropriate. 10 FMSHRC 578 (April 1988) 

(ALJ). For the reasons that follow, we hold that the judge erred in 

concluding·that he had jurisdiction to consider and rule upon the 

application for declaratory relief. 

Kaiser's application for declaratory relief arose in connection 

with a dispute between the Department of Labor's Mine Safety and Health 

Administration ("MSHA") and Kaiser regarding the application of 30 

C.F.R. § 75.326, a mandatory underground coal mine safety standard, at 

Kaiser's Sunnyside No. 1, No. 2 and No. 3 mines ("Sunnyside" or "the 

mines") located in Carbon County, Utah. 1/ These underground coal mines 

connection therewith, assigned to such administrative law judge by the chief administrative law 

judge of the Commission or by the Commission, and 

shall make a decision which constitutes his final 

disposition of the proceedings. The decision of the 

administrative law judge of the Commission shall 

become the final decision of the Commission 40 days 

after its issuance unless within such period the 

Commission has directed that such decision shall be 

reviewed by the Commission in accordance with 

paragraph (2). An administrative law judge shall 

not be assigned to prepare a recommended decision 

under this [Act]. 

30 u.s.c. § 823(d)(l). 

~/ Section 75.326 essentially restates section 303(y)(l) of the Mine 

Act, 30 U.S.C. § 863(y)(l), and provides: 

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

entries used as intake and return air courses shall 

be separated from belt haulage entries, and each 

operator of such mine shall limit the velocity of 

the air coursed through belt haulage entries to the 

amount necessary to provide an adequate supply of 

oxygen in such entries, and to insure that the air 

therein shall contain less than 1.0 volume per 

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

ventilate active working places. Whenever an 

authorized representative of the Secretary finds, in 

the case of any coal mine opened on or prior to 

March 30, 1970, which has been developed with more 

than two entries, that the conditions in the 

entries, other than belt haulage entries, are such 

as to permit adequately the coursing of intake or 

return air through such entries, (a) the belt 

haulage entries shall not be used to ventilate, 

unless such entries are necessary to ventilate, 

active working places, and (b) when the belt haulage 

entries are not necessary to ventilate the active 

working places, the operator of such mine shall 

1166 
were opened in 1896. Prior to 1960 they were developed with more than 

t~o entries. Kaiser asserts that in 1960, it began using a longwall 

system o~ development and determined that only two gateroad entries 

should be developed along the sides of each block of coal to be mined in 

order to achieve more stable rib, roof, and floor conditions at the 

mines. Under the two-entry longwall system, the belt haulage entry also 

serves as either the intake or return air entry. Consequently, the belt 

haulage entry is used to course intake or return air to and from the 

active workings. 

Until September 1985, MSHA approved and Kaiser adopted roof 

control plans and ventilation system and methane and dust control plans 

("ventilation plans") incorporating the two-entry longwall system of 

development. J/ However, on September 11, 1985, MSHA advised Kaiser by 

letter that it no longer approved the ventilation plan for the Sunnyside 

mines. MSHA explained that it was "re-examining certain of its policies 

and practices regarding operators' use of belt haulage entries as 

ventilation entries, and particularly the application of section 75.326 

to mines opened prior to March 30, 1970. 11 MSHA further stated: 

[I]n the context of section 75.326, [Sunnyside] has 

been developed with "more than two entries." Also, 

the conditions in these entries, other than belt 

haulage entries, are adequate to properly course the 

mine's intake and return air •... In addition, MSHA 

has determined that in all future mining areas 

sufficient entries can be developed such as to 

permit adequately the coursing of intake and return 

air through such entries without utilization of the 

belt entry. 

K. Br. to ALJ, Attachment B at 2-3. MSHA's letter also stated that 

Kaiser could no longer use the two-entry longwall system to implement 

new development at Sunnyside unless the Secretary were to grant a 

petition filed by Kaiser pursuant to section lOl(c) of the Mine Act 

seeking modification of section 75.326 as applied to Sunnyside. ~/ 

limit the velocity of the air coursed through the 

belt haulage entries to the amount necessary to 

provide an adequate supply of oxygen in such 

entries, and to insure that the air therein shall 

contain less than 1.0 volume per centum of methane. 

}/ Pursuant to 30 C.F.R. § 75.200 and 30 C.F.R. § 75.316, an operator 

is required to adopt a roof control plan and a ventilation plan suitable 

to the conditions and mining system of the mine. The plans must be 

reviewed and approved by the Secretary at least every six months. 

~/ Section lOl(c) of the Mine Act, 30 U.S.C. § 81l(c), provides that 

the Secretary may modify the application of any mandatory safety 

standard to a mine. Modification may be granted in those instances 

where the Secretary determines either that an alternative means of 

achieving the results of the standard exists that will at all times 

guarantee no less than the same measure of protection afforded by the 

1167 
Thereafter, Kaiser filed with the Secretary a petition for 

modification of section 75.326, but continued to use the two-entry 

longwall system in developing the Sunnyside mines. On March 27, 1987, 

an MSHA inspector issued to Kaiser an order of withdrawal pursuant to 

section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l), alleging that 

Kaiser's use of the two-entry longwall system (without an approved 

modificatio~ of section 75.326) violated section 75.326. Kaiser 

contested the order and the case was assigned to Conunission 

Administrative Law Judge Gary Melick. Kaiser Coal Corp., Docket No. 

WEST 87-116-R. 

Prior to a hearing on the merits in Docket No. WEST 87-116-R, 

Kaiser and MSHA agreed to settle the case. MSHA consented to Kaiser's 

completion of its current two-entry longwall development section and 

agreed to vacate the section 104(d)(l) order of withdrawal, provided 

Kaiser complied with certain conditions during that development. Kaiser 

agreed to comply with MSHA's conditions and to withdraw its contest of 

the order. The settlement agreement by its terms applied only to the 

order of withdrawal at issue in that proceeding. On April 24, 1987, 

Kaiser moved the judge to withdraw its contest of the order and to 

dismiss the case, and on April 29, 1987, Judge Melick dismissed the 

contest proceeding. 

In the meantime, MSHA, on behalf of the Secretary, was processing 

Kaiser's petition for modification. On October 27, 1987, the 

Administrator of MSHA granted the petition subject to certain 

conditions. Thereafter, the United Mine Workers of America ( 11UMWA11 ) 

filed a request for a hearing before a Department of Labor administrative law judge. The judge scheduled a hearing for June 1988, but, 

upon the motion of the UMWA and without objection from Kaiser, the 

modification proceeding has been continued indefinitely. 

On February 25, 1988, Kaiser initiated this proceeding by filing 

with the Conunission an application for declaratory relief. The matter 

was assigned to Judge Melick. Following oral argument and briefs on the 

the application, the judge denied Kaiser's request for declaratory 

relief. 

In his decision, the judge concluded that Conunission jurisdiction 

to grant declaratory relief existed under 5 U.S.C. § 554(e) and that 

standard, or that application of the standard will result in a 

diminution of safety to the miners in the mine. The operator is 

required to petition the Secretary for relief from the application of 

the standard. The Secretary has adopted regulations governing the 

processing of such petitions. 30 C.F.R. Part 44. Upon receipt of a 

petition, MSHA gives notice, conducts an investigation and issues a 

proposed decision granting or denying the relief sought. This proposed 

decision is made by an Administrator of MSHA, which becomes the final 

decision of the Secretary unless a request for a hearing is filed. If 

requested, a hearing is held before an administrative law judge of the 

Department of Labor. An appeal may be made to the Assistant Secretary 

of Labor. Only a decision of the Assistant $ecretary is deemed final 

agency action for purposes of judicial review. 

1168 
specific authority for these proceedings to be heard before a Commission 

Administrative Law Judge is granted under section 113(d)(l) of the Mine 

Act. 10 FMSHRC at 579. The judge noted, however, that 5 U.S.C. 

§ 554(e) empowers an agency to "issue a declaratory order to terminate a 

controversy or remove uncertainty," and reasoned that a declaratory 

order should be denied when it will not accomplish these goals. 

10 FMSHRC at 580. The judge concluded that even if he were to hold 

section 75.326 inapplicable to Sunnyside, the controversy at issue would 

not be terminated because Kaiser would still find it necessary to obtain 

the Secretary's approval in its roof control and ventilation plans for 

two-entry longwall mining development. Therefore, the judge found 

declaratory relief was inappropriate, and he denied the application. 

10 FMSHRC at 580-82. 

We granted Kaiser's petition for discretionary review. We also 

directed for review, sua sponte, the question of whether the judge had 

jurisdiction to rule upon Kaiser's application. Because we conclude 

that the judge did not have jurisdiction to hear and decide Kaiser's 

application, we do not reach the question of whether declaratory relief 

would have been appropriate. 

We begin with the fundamental principle that, as an administrative 

agency created by statute, we cannot exceed the jurisdictional authority 

granted to us by Congress. See, e.g., Civil Aeronautics Board v. Delta 

Airlines, 367 U.S. 316, 322 (1961); Lehigh & New England R.R. v. ICC, 

540 F.2d 71, 78 (3rd Cir. 1976); National Petroleum Refiners Assoc. v. 

FTC, 482 F.2d 672, 674 (D.C. Cir. 1973). The Commission is an 

independent adjudicative agency created by section 113 of the Mine Act, 

30 U.S.C. § 823, to provide trial-type proceedings and administrative 

appellate review in cases arising under the Act. Several provisions of 

the Mine Act grant subject matter jurisdiction to the Commission by 

establishing specific enforcement and contest proceedings and other 

forms of action over which the Commission judicially presides: ~, 

section 105(d), 30 U.S.C. § 815(d), provides for the contest of 

citations or orders, or the contest of civil penalties proposed for such 

violations; section 105(b)(2), 30 U.S.C. § 815(b)(2), provides for 

applications for temporary relief from orders issued pursuant to section 

104; section 107(e), 30 U.S.C. § 817(e), provides for contests of 

imminent danger orders of withdrawal; section lOS(c), 30 U.S.C. 

§ 815(c), provides for complaints of discrimination; and section 111, 30 

U.S.C. § 821, provides for complaints for compensation. Specific 

provisions, such as these, delineate the scope of the Commission's 

jurisdiction. 

In contrast to the Act's provisions conferring jurisdiction, 

section 113(d)(l) is procedural in nature. It creates no specific right 

of action or proceeding over which the Commission may preside. Section 

113 establishes the Commission and sets forth the procedures for 

hearing, deciding, and reviewing matters arising under the Act. 

Although section 113(d)(l) states that Commission administrative law 

judges "appointed ... to hear matters under this Act shall hear, and 

make a determination upon, any proceeding instituted before the 

Commission," this language describes the scope of the judge's authority 

to hear and decide matters in those proceedings otherwise properly filed 

1169 
pursuant to the Act. In short, section 113(d)(1) does not constitute an 

independent grant of subject matter jurisdfotion. 'ii 

Kaiser's argument that the language of section 113(d)(1) contains 

a broad grant of jurisdiction giving Commission judges the authority to 

decide "any proceeding" is rejected. This language must be read in the 

proper statutory context discussed above, and is not an invitation from 

Congress to legislate for ourselves virtually unlimited jurisdiction 

over "any proceeding." Indeed, the Commission has consistently 

refrained from inferring jurisdiction in the face of Congress' failure 

to provide it. In refusing to hold that miners or their representatives 

have authority under the Act to initiate review of citations through a 

notice of contest where the Act does not specifically provide that 

right, the Commission stated: "The statute contains no express 

provision for the asserted right •.•• It is not the prerogative of this 

Commission to confer [a] right in the absence of statutory provision." 

United Mine Workers of America v. Secretary of Labor, 5 FMSHRC 807, 815 

(May 1983), aff'd mem., 725 F.2d 126 (D.C. Cir. 1983)(table). See also, 

United Mine Workers of America v. Secretary of Labor, 5 FMSHRC 1519, 

1521 (September 1983) (rejecting contention that section 105(d) of the 

Mine Act, 30 U.S.C. § 815(d), grants miners the right to contest 

Secretary's vacation of order issued pursuant to section 104 of the Act, 

30 U.S.C. § 814). This reasoning is equally applicable here. 

Reliance upon 5 U.S.C. § 554(e) is also misplaced in the context 

of this proceeding. The APA is not a jurisdictional statute and "does 

not afford an implied grant of subject matter jurisdiction •... " 

Califano v. Sanders, 430 U.S. 99, 107 (1977). See also American Air 

Parcel Forwarding Co. v. United States, 718 F.2d 1546, 1552 (Fed. Cir. 

1983), cert. den., 466 U.S. 937 (1984). Rather, agencies must look to 

their enabling statutes for the boundaries of their jurisdiction. Thus, 

while section 554(e) provides that an agency may issue a declaratory 

order to terminate a controversy or remove uncertainty, this authority 

is available only where jurisdiction is already conferred upon the 

agency by its statute. Cf. Illinois Terminal R.R. v. ICC, 671 F.2d 

1214, 1216 (8th Cir. 1982). 

The Commission has previously recognized that it may grant 

declaratory relief in appropriate proceedings where jurisdiction 

'ii The procedural nature of section 113(d)(1) is emphasized in the 

legislative history. The provision is described in the Senate committee 

report on the bill that largely became the Mine Act in a section of the 

report entitled "Procedures." The joint explanatory statement of the 

committee of conference summarized this section as requiring that 

"Administrative Law Judges hear and decide any matter assigned and make 

a decision which would constitute a final disposition of the 

proceeding." Nothing in the legislative history indicates that Congress 

viewed section 113(d)(1) as jurisdictional. S. Rep. No. 181, 95th 

Cong., 1st Sess. 78 (1977) and S. Rep. No. 461, 95th Cong., 1st Sess. 60 

(1977), reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong. 2nd Sess., Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 636 and 1338 (1978). 

1170 
otherwise exists. Climax Molybdenum Co., 2 FMSHRC 2748, 2751-52 

(Qctober 1980), aff'd sub nom. Climax Molybdenum Co. v. Secretary of 

Labor, 703 F.2d 447, 452 (10th Cir. 1983); Youghiogheny & Ohio Coal Co., 

7 FMSHRC 200, 203 (February 1985)("Y&O"). Both Climax and Y&O were 

enforcement proceedings properly brought before the Commission pursuant 

to section 105(d) of the Act and therefore within Commission 

jurisdiction. Further, authority to grant declaratory relief in a 

section 105(d) enforcement proceeding is implicit in section 105(d), 

which authorizes the Commission to affirm, modify, or vacate the 

contested citation, order, or proposed penalty or direct "other 

appropriate relief." See Climax, 2 FMSHRC at 2751 n.5. §_/ 

Here, Kaiser chose to settle and to withdraw the prior section 

105(d) contest proceeding in which the applicability of 75.326 at 

Sunnyside was at issue. Afterward, absent any extant enforcement action 

by the Secretary, Kaiser filed the present independent application for 

declaratory relief. Although the Commission had unquestioned 

jurisdiction over the prior contest proceeding, it is without 

jurisdiction over this application for declaratory relief. 

§_/ Section 105(d) states in part: 

If ... an operator pf a ... mine notifies the 

Secretary that he intends to contest the issuance or 

modification of an order issued under section [104] 

of this [Act], or citation or notification of 

proposed assessment of a penalty ... , the Secretary 

shall immediately advise the Commission of such 

notification, and the Commission shall afford an 

opportunity for a hearing (in accordance with [5 

U.S.C. § 554] ... ), and thereafter shall issue an 

order, based on findings of fact, affirming, 

modifying, or vacating the Secretary's citation, 

order, or proposed penalty, or directing other 

appropriate relief .... 

30 U.S.C. § 815(d)(emphasis added). 

In affirming the Commission in Climax, the Tenth Circuit also 

emphasized that declaratory relief is part of the "other appropriate 

relief" the Commission may afford when a case properly arises under 

section 105(d) of the Act. Climax, supra, 703 F.2d at 452 n.4. 

1171 
Accordingly, the judge's decision is reversed to the extent he 

concluded that he had jurisdiction to hear and decide Kaiser's 

application for declaratory relief. The judge's denial of the 

application for declaratory relief is affirmed on the ground that the 

Conunission lacks jurisdiction in this proceeding.· 

Distribution 

John A. Macleod, Esq. 

Susan E. Chetlin, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Mary Lu Jordan, Esq. 

United Mine Workers of America 

900 15th Street, N.W. 

Washington, D.C. 20005 

Dennis D. Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Joyce 

tZ~d~,, A. Doyle, Commi:ST er 

~~~ L. Clair Nelson, ~ 

1172 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 29, 1988 

WILFRED BRYANT 

v. Docket No. WEVA 85-43-D 

DINGESS MINE SERVICE, 

WINCHESTER COALS, INC., 

MULLINS COAL COMPANY, 

JOE DINGESS and JOHNNY DINGESS 

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

Commissioners 

DECISION 

BY: Ford, Backley, Lastowka and Nelson 

This proceeding involves a discrimination complaint brought by 

Wilfred Bryant against Dingess Mine Service ("Dingess"), Mullins Coal 

Co. ("Mullins"), Winchester Coals, Inc. ("Winchester"), Joe Dingess, and 

Johnny Dingess pursuant to the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act"). Following a hearing 

on the merits, Commission Administrative Law Judge James A. Broderick 

concluded that Dingess had discriminated against Bryant in violation of 

section lOS(c)(l) of the Mine Act by discharging him for engaging in a 

protected work refusal, 30 U.S.C. § 815(c)(l) l/; that Mullins and 

lf Section lOS(c)(l) provides in pertinent part: 

Discrimination or interference prohibited; complaint; investigation; 

determination; hearing 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to this 

[ActJ because such miner, representative of miners 

or applicant for employment has filed or made a 

complaint under or related to this [Act], including 

a complaint notifying the operator or the operator's 

1173 
Winchester were not liable under section lOS(c)(l) for Dingess• 

discriminatory action; and that the adverse activity complained of was 

terminated when Bryant refused an offer of reemployment and resigned 

from his job. 9 FMSHRC 336 (February 1987)(ALJ). After the judge 

issued a supplemental decision granting Bryant back pay with interest 

and attorneys' fees (9 FMSHRC 940 (May 1987)(ALJ)), we granted Bryant's 

petition for discretionary review and heard oral argument. Bryant 

asserts on review that the judge erred: (1) in finding that Mullins and 

Winchester are not liable for Dingess 1 discrimin-atory act, and ( 2) in 

finding that Dingess' adverse action was terminated as a result of 

Bryant's refusal of reemployment and resignation. For the reasons that 

follow, we agree that the judge erred in not holding Mullins and 

Winchester liable under section lOS(c)(l) for Dingess• discriminatory 

act, but we conclude that substantial evidence supports the judge's 

finding regarding the termination of the adverse action. Accordingly, 

we reverse in part and affirm in part. 

I. 

This case arises out of events occurring at an underground coal 

mine located in Logan County, West Virginia. On July 20, 1982, Mullins, 

the lessee of the coal at the mine, entered into a renewable one-year 

contract with Dingess Mine Service, a company solely owned by Joe 

Dingess and Johnny Dingess ("Dingess brothers"), whereby Dingess agreed 

to mine coal and deliver it to Mullins for a specified sum per ton. 

Prior to this agreement, Dingess had not operated an underground coal 

mine. Mullins' decision to contract with the Dingess brothers was 

influenced by their satisfactory performance of electrical work in 1981-

82 pursuant to a contract with Mullins' sister corporation, Winchester. 

'];./ (While doing work for Winchester, the Dingess brothers had operated 

under the name of Dingess Line Service.) 

The contract to operate the mine provided that Dingess would be 

responsible for the hiring, employment, and working conditions of its 

employees and that the work force would be under the jurisdiction of the 

United Mine Workers of America ( 11UMWA11 ) and governed by the current UMWA 

wage agreement (the "Wage Agreement"). The contract further provided 

that Dingess would "keep and maintain all mining equipment in good 

working order, condition and repair •.•. " R. Ex. 5 at 2. Dingess also 

agreed to comply with all applicable federal, state, and local laws and 

regulations. For its part, Mullins reserved the right to enter and 

inspect the mine for the "purpose of assuring Owner that Contractor is 

performing all of its covenants and agreements hereunder." R. Ex. 5 

at 12. Mullins also retained the right to approve mining plans 

agent, or the representative of the miners at the 

coal or other mine of an alleged danger or safety or 

health violation in a coal or other mine ..•• 

30 U.S.C. § 815(c)(l). 

'];./ Both Mullins and Winchester are wholly-owned subsidiaries of 

Imperial Pacific Investments. Donald Cooper, the president of both 

Mullins and Winchester, is Mullins' only employee. 

1174 
developed by Dingess. 

Concurrently with its contract with Mullins to operate the mine, 

Dingess entered into an agreement with Winchester by which Dingess 

leased the mining equipment and machinery necessary to operate the mine. 

Dingess also agreed "to keep all of the [equipment] in good order and 

repair." R. Ex. 6 at 2. 

In the latter part of 1983 and early 1984, management for Mullins 

and Winchester became aware that Joe Dingess was drinking liquor at the 

mine and that Dingess was not making payments as required under the 

contract, including UMWA royalties, federal and state taxes, and 

worker's compensation fund payments. Tr. 96, 205-'06. Following the 

issuance of a number of citations by West Virginia's Department of 

Natural Resources for Dingess' failure to comply with surface drainage 

requirements at the mine, it was necessary for Mullins to take direct 

action to correct surface drainage problems in order to protect its 

mining permit. Tr. 206-07. 

Commensurate with its operational problems with Dingess, Mullins 

deducted rental payments due Winchester under the equipment lease from 

amounts which Mullins owed Dingess under the mining contract. In 

addition, money was advanced to Dingess against coal produced by Dingess 

but not yet delivered to Mullins, and Winchester made payments on 

Dingess' behalf to cover debt obligations to third parties, such as 

suppliers, trucking companies, and repair companies. Further, Mullins 

worked with Dingess in other ways in order to help Dingess meet its 

production requirements. Specifically, in the sUllllller of 1984, Mullins 

suggested that Dingess develop a second mining section at the mine and 

Winchester assisted Dingess in its development. Winchester also leased 

additional equipment to Dingess to mine the new section. Tr. 210-12. 

The individual chiefly responsible for monitoring Dingess• 

performance under its contract with Mullins was Winchester's mine 

manager, Roger Cook. Tr. 86-88. Cook testified that he inspected the 

mine by going underground two or three times each week in order to 

ensure that mining plans were being followed and to check on production. 

Tr. 97a. On occasion he also took responsibility for dust control and 

correcting surface drainage problems. Tr. 97b-97c, 117. In conjunction 

with an employee of Winchester, Cook developed the plans for opening the 

second section at the mine and saw to it that the plans were carried 

out. Tr. 99. Cook also testified that no one at Dingess consulted with 

him about the hiring or laying-off of employees, nor did any of Dingess• 

employees complain to him about any of the equipment being unsafe. Tr. 

109-10. 

On October 22, 1984, Mullins terminated its mining contract with 

Dingess on various grounds, including the failure of Dingess to pay its 

employees and to comply with the Mine Act and its regulations. 

R. Ex. 7. Also, Winchester's equipment lease with Dingess was 

terminated in February 1985, for the latter's failure to make the 

required minimum payments. Id. 

Some six months prior to the termination of the contract between 

1175 
Mullins and Dingess, on April 23, 1984, the complainant, Wilfred Bryant, 

had been hired by the mine foreman, Aaron Browning, to work as a shuttle 

car driver on the second shift. Bryant testified that the shuttle car 

that he was assigned to operate was hard to steer and was covered with 

mud and debris. In addition, it had defective brakes on one side, no 

lights, and a defective tram mechanism. When Bryant pointed out these 

mechanical problems to Browning and Kevin Atkins, the section foreman, 

Bryant was told to do the best he could with the car. Tr. 27. 

Bryant testified that by his third day at the mine, his arms were 

so stiff from steering the shuttle car that he refused to operate it 

further. The next day, after informing Atkins that he would not operate 

the shuttle car, Browning assigned him to other work. On the following 

day, Friday, April 27, 1984, Browning called Bryant at home and told him 

that the entire second shift was being laid o·ff due to flooding in the 

mine. Bryant went to the mine to obtain a lay-off slip, only to learn 

that the mine was not flooded and that miners with less seniority were 

in fact working at the mine. Browning refused to issue a lay-off slip 

and told Bryant that he no longer had a job. Tr. 25-26, 32-34. 

Bryant responded to the discharge by filing a grievance with the 

local UMWA office. The grievance did not allege a safety violation by 

the operator, but focused on Bryant's lay-off and Browning's continued 

employment of men less senior to Bryant. Following the union representatives' negotiations on Bryant's behalf, Browning agreed to put 

Bryant on a panel for recall. J/ Bryant refused the proposed settlement 

because he did not believe Browning and because Browning did not agree 

to fix the shuttle car. Tr. 51, 67, 308-09. Stanley Wells, the mine's 

safety connnitteeman and one of those representing Bryant, was present 

during the negotiations. Wells, in his testimony, confirmed that 

Browning offered to put Bryant on a panel. He testified that a union 

representative subsequently discussed the offer with Bryant and 

encouraged Bryant to accept it. He stated that Bryant did not agree 

because "he felt he was done wrong." Tr. 165. 

Mine Foreman Browning testified that he was never employed by 

Mullins or Winchester and that he received all his instructions for 

directing the operation of the mine from the Dingess brothers. Tr. 270-

71, 274. At the time he hired Bryant as a shuttle car driver on the 

second shift, he did not confer with anyone at Mullins or Winchester. 

Tr. 275. Browning stated that he decided to lay off Bryant because of a 

oral safety complaint from the loading machine operator about Bryant's 

operation of the shuttle car. Browning did not consult with anyone at 

Mullins or Winchester about his decision. Tr. 291, 294-95. Browning 

testified that he intended to call Bryant back after a couple of days, 

but not as a shuttle car driver. Tr. 278-79. 

On May 1, 1984, Bryant filed a discrimination complaint with the 

11 A recall panel is a procedure under the Wage Agreement whereby the 

name of a miner who has been laid off is placed on a list by the 

operator for recall to work as positions become available. Miners are 

listed in order of seniority. See Tr. 52-54, 164, 308-09. 

1176 
Department of Labor's Mine Safety and Health Administration ("MSHA"). 

On May 9, 1984, following negotiations regarding his grievance and 

rejection of Browning's offer, Bryant formally terminated his employment 

with Dingess. After investigating the complaint, MSHA determined that a 

violation of the Mine Act had not occurred and declined to file a 

complaint on Bryant's behalf. 30 U.S.C. § 815{c)(2) & (3). Bryant then 

filed a complaint on his own behalf before this independent Conunission 

pursuant to section 105(c)(3) of the Act. 30 U.S.C. § 81S(c){3). 

According to the judge, a default judgment was entered against Dingess 

and the Dingess brothers for failure to show cause why an appearance had 

not been entered or an answer filed. The judgment was not conclusive on 

the issue of discrimination as against Mullins, Winchester, or any 

successor employer. 

Following a two-day evidentiary hearing, the judge issued his 

decision concluding that Bryant had engaged in a protected activity when 

he refused to operate the shuttle car and that his reason for refusing 

was conununicated to the operator. 9 FMSHRC at 342. The judge found 

that Bryant "was 'laid off' on April 27, 1984, following his refusal," 

and he characterized this lay-off as an adverse action. Id. However, 

because Bryant refused the of fer by the mine superintendent to be put on 

a recall panel, the judge concluded "that he was not discharged and that 

the adverse action terminated when he refused the off er to be called 

back and resigned his job." Id. 

The judge characterized Dingess as the "production-operator under 

a contract with the owner of the coal." 9 FMSHRC at 344. He found that 

Mullins and Winchester had a "continuing presence" at the mine and knew 

or should have known of Dingess' increasing incompetence to operate the 

mine at the time of Bryant's employment. 9 FMSHRC at 343. He inferred 

from Roger Cook's regular presence at the mine that Mullins and 

Winchester were aware of the shuttle car's defective condition. The 

judge also found that Mullins and Winchester were "involved in 

overseeing Dingess' work ••. [and) actually performed some of the work 

involved in the production of coal (engineering projections, 

installation of overcasts)." 9 FMSHRC at 344. However, because Mullins 

and Winchester were not involved in hiring Bryant, did not direct his 

work activity, and were not involved in the decision to fire him, the 

judge concluded that Mullins and Winchester were not liable for 

discrimination under section lOS(c)(l) of the Mine Act. 9 FMSHRC at 

343-44. 

The judge dismissed Bryant's complaint with respect to Mullins and 

Winchester, but ordered Dingess to pay Bryant back pay with interest 

from April 27, 1984 (the date of the lay-off) to May 9, 1984 (the date 

of Bryant's resignation) with interest thereon and to reimburse him for 

attorney's fees and costs. ~/ 9 FMSHRC 940, 942-43 (May 1987)(ALJ). 

~/ During the course of the hearing, Bryant moved the judge to add 

New River Fuels to the complaint as a successor-in-interest to Dingess. 

(The license to operate the mine had been transferred to New River Fuels 

after it was recovered from Dingess. See 9 FMSHRC at 339.) Because the 

judge concluded that the adverse action complained of terminated on 

1177 
II. 

On review Bryant first argues that the judge erroneously concluded 

that Winchester and Mullins were not liable for his wrongful discharge. 

Bryant relies on theories of strict liability and agency to assert error 

because, as the judge concluded, Mullins and Winchester were "interchangeable" (9 FMSHRC at 339) and had a "continuing presence at the 

mine." Id. at 343. Bryant asserts that by permitting Dingess to 

operate the mine after becoming aware of its incompetence, Mullins and 

Winchester contributed to the unlawful discrimination. 

In determining that Mullins and Winchester should not be held 

liable under section 105(c)(l) of the Mine Act, the judge viewed Dingess 

as an independent contractor and concluded that Mullins and Winchester 

as the mine owners were not liable without regard to fault for Dingess' 

discriminatory act. We find, however, that given the facts of this 

case, Dingess actually functioned as a manager and supervisor on behalf 

of the operators, Mullins and Winchester, rather than as an independent 

contractor responsible for the operation of the mine. We conclude that 

Dingess was acting as a supervisory agent in a working environment where 

the operation of the mine was effectively controlled and directed by 

Mullins and Winchester and, consequently, that Mullins and Winchester 

are liable for Dingess' discriminatory act. 21 

Our disposition turns upon an examination of the true nature of 

the relationship existing between the parties. Although the contract 

between Mullins and Winchester designated Dingess as an "independent 

contractor," it is the conduct of the parties and not the terminology of 

the contract which determines the nature of the relationship. See, 

~· Board of Trade of Chicago v. Hammond Elevator Co., 198 U.S. 424 

(1904); Burris v. Texaco, Inc., 361 F.2d 169 (4th Cir. 1966). Due to 

Mullins' and Winchester's substantial control over the most significant 

aspects of the operation of the mine, the relationship between the 

parties in this instance was that of principal and agent similar to the 

typical arrangement where a mine operator employs supervisory personnel 

to assist in the operation of a mine. See 30 U.S.C. § 802(e)(defining 

"agent" as "any person charged with the~sponsibility for the operation 

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

miners... • II) . 

Bryant's resignation and before the license was recovered from Dingess, 

the judge denied the motion. 9 FMSHRC at 344. On appeal, Bryant 

requested permission to put on evidence concerning the successor 

liability of New River Fuels in the event the Commission determined that 

his backpay should not have terminated at the time he rejected the offer 

to be placed on the recall panel. In light of our decision affirming 

the judge's disposition of the backpay issue, the question of New 

River's successorship liability need not be pursued. 

~/ In light of our agreement with Bryant's theory of liability based 

on agency principles, we do not reach his alternative argument based on 

strict liability in the context of section 105(c). 

1178 
Although the judge did not expressly find that Dingess was acting 

as a~ agent,_ the factual findings that he did make lead inevitably to 

this conclusion. Although in its contract with Mullins, Dingess was 

charged with being wholly responsible for the work force and the 

operation of the mine, in fact, neither Joe Dingess nor Johnny Dingess 

had ever operated an underground mine. 9 FMSHRC at 337. Thus, Mullins 

should have been aware at the outset that Dingess did not have the 

technical expertise that must be expected of an independent contractor 

operating a mine. Other findings relate to Mullins' and Winchester's 

close supervision of the manner in which mining was carried out. The 

contract provided that Mullins would retain the right to approve mining 

plans as developed by Dingess and, as the judge found, Mullins 

participated in the actual development of plans by hiring an engineering 

firm to prepare maps and to perform ventilation calculations. 9 FMSHRC 

at 338. Roger Cook, Winchester's mine manager, testified without 

dispute that he and Winchester's mine foreman were instrumental in 

having Dingess develop a second mining section at the mine. Tr. 99. 

This testimony is consistent with the judge's finding that Mullins and 

Winchester were involved not only in overseeing Dingess' work, but also 

in actually performing some of the work involved in the production of 

coal. 9 FMSHRC at 344. 

Further, as the judge stated, Mullins and Winchester had a 

"continuing presence at the mine." 9 FMSHRC at 343. Cook inspected the 

mine on a regular basis by going underground two or three times a week. 

During the course of these inspections, Cook's primary duty was to 

ensure that Dingess complied with the means and methods of production 

generally set forth in the mining plans prepared at Mullins' and 

Winchester's behest. Cook described this duty as "[m]aking sure 

[Dingess] was following our procedures we set up on retreat mining, or 

projections that we set forth for them, to make sure that they wouldn't 

destroy the reserves." Tr. 97. In this regard, he inspected the 

ventilation and the roof, had problems corrected, and was involved with 

-surface drainage and underground dust control. Tr. 97a-97b. He also 

stated that he had to "get on" the Dingess brothers to correct problems 

with su=face dust control. Tr. 97b. When Dingess did not correct such 

a problem, Cook sent Winchester's employees to correct it. Tr. 97b, 

117. On several occasions, Cook instructed Dingess on how to comply 

with s~ate environmental requirements. Tr. 118. Since he was concerned 

with the amount of coal produced, he reminded Dingess every few days to 

increase production. 

The judge also detailed Mullins' and Winchester's handling of 

numerous financial transactions involving Dingess' debt payments 

including payments on Dingess' behalf to suppliers, trucking companies, 

and repair companies, and cash advances by Mullins and Winchester· to 

Dingess. 9 FMSHRC at 338. 

Considered together, these findings establish that Mullins and 

Winchester were in actual control of the mine at which Bryant worked. ~/ 

£/ Although the evidence indicates that Dingess exercised control 

over the hiring, discharging, and laying off of employees at the mine, 

1179 
As a result, this case is not unlike the more typical situation where a 

mine foreman or supervisor is endowed with a certain degree of 

responsibility in the operation of a mine, but whose sphere of control 

is always subject to the operator's ultimate right to direct the 

supervisor's work performance in order to ensure compliance with the 

requirements of the Mine Act. Within this latter framework, it has been 

consistently held that mine operators are liable for the discriminatory 

acts of their agents under section 105(c)(1) of the Act. See, ~· 

Secretary of Labor v. Metric Constructors, Inc., 6 FMSHRC 226 (February 

1984), aff'd sub nom. Brock v. Metric Constructors, Inc., 776 F.2d 469 

(11th Cir. 1985) (mine construction subcontractor held liable for 

superintendent's illegal discharge of employees following their 

protected work refusal); Moses v. Whitley Development Corp., 4 FMSHRC 

1475 (1982) aff'd sub !!2!!!· Whitley Development Corp. v. FMSHRC, 770 F.2d 

168 (6th Cir. 1985)(operator held liable for foreman's illegal discharge 

of miner); Secretary on behalf of Robinette v. United Castle Coal Co., 

3 FMSHRC 803 (April 1981) (operator held liable for mine 

superintendent's illegal discharge of miners engaged in protected work 

refusal). 

Under these circumstances, we hold that the record establishes 

that Dingess' status as an independent contractor was in name only and 

that in fact the nature of its relationship with Mullins and Winchester 

was akin to its being an on-site, supervisory agent for Mullins and 

Winchester. Therefore, Mullins and Winchester, as operators of the mine 

at issue, are liable under section 105(c)(1) of the Mine Act for 

Dingess' discriminatory acts. 

III. 

The final issue is whether the judge erred in concluding that 

Bryant's refusal to be placed on the recall panel and his subsequent 

resignation tolled Bryant's right to back pay. The judge found that 

following Bryant's discriminatory lay-off on April 27, 1984, Aaron 

Browning offered to place Bryant on a panel for recall to work "in a 

couple of days at most" (Tr. 278), and that on May 9, 1984, Bryant 

refused Browning's offer by resigning. 9 FMSHRC at 342. The judge 

concluded that "the adverse action terminated when [Bryant] refused the 

offer to be called back" and, therefore, that Bryant was only entitled 

to back pay with interest for the period of April 27 to May 9. 9 FMSHRC 

at 342, 344. Bryant argues that Browning's offer of reemployment was 

insufficient to cut off Mullins' and Winchester's liability for back pay 

and interest. 

Generally, when a discriminatee is unconditionally and in a bona 

fide fashion offered reinstatement, the running of back pay is tolled. 

B. Schiel and P. Grossman, Employment Discrimination Law, at 1432 2d ed. 

(1983); at 279-80 (2d ed. 1983-84 Supp. 1985); ~Munsey v. Smitty 

Baker Coal Company, Inc., 2 FMSHRC 3463, 3464 (December 1984)(suitable 

job offer tolls back pay due discriminatee). The Supreme Court has 

such control of personnel decisions is not inconsistent with Dingess' . 

status as an agent, but rather describes the degree of authority granted 

to Dingess in this particular area of responsibility. 

1180 
emphasized that only in "exceptional" circumstances will a 

discr.iminatee's rejection of an unqualified job offer not end the back 

pay period. Ford Motor Co. v. EEOC, 458 U.S. 219, 238-39 n.27 (1982). 

In light of these principles, we hold that the judge did not err in 

determining the period for which Bryant is entitled to back pay and 

interest. 

The undisputed testimony of Browning and of Stanley Wells, the 

union's safety connnitteeman and Bryant's representative in negotiations 

with Browning, is that the offer to place Bryant on the recall panel was 

made without restrictions. Thus, the question is whether the offer was 

in fact a bona fide offer of reemployment. The contract between Dingess 

and Mullins specified that the procedure for returning laid off miners 

to work was through the recall panel process. The bargaining between 

Browning and Bryant, during which Browning offered to place Bryant on 

the recall panel, was part of Bryant's contractual grievance 

negotiations, but Bryant's discrimination complaint and Bryant's 

grievance arose out of the same circumstances. 

Browning testified that once Bryant was on the panel, Browning 

intended to recall Bryant to work as a helper or a laborer. Bryant does 

not argue that these jobs were not comparable with his former position 

as a shuttle car driver. Rather, he argues that Browning's job offer 

was nothing more than an empty promise. Bryant relies on the fact that 

when the offer was made, a recall panel did not exist and, in fact, 

never had been used at the mine. However, the record contains no 

evidence of events that would have given rise to the creation of a panel 

prior to this time. Further, the testimony of Wells establishes that 

Bryant had assurances that the panel procedure would be instituted and 

that he would be recalled to a job within a matter of days. Wells 

stated that Browning told him and the union representative that Bryant 

would be given a "place on the panel" and that Browning "guaranteed ... 

that he would have Bryant back to work within two or three days." Tr. 

165, 167. When asked if he had connnunicated these assurances to Bryant, 

Wells replied that he had. Id. ZI 

The judge credited Wells' testimony that Browning had "guaranteed" 

that Bryant would be called back to work within two or three days and 

that Bryant knew this when he refused the offer. 9 FMSHRC at 340. 

Credibility is an issue for the judge to decide. As the Connnission 

often has stated, a judge's credibility resolutions cannot be overturned 

lightly(~, Hall v. Clinchfield Coal Co., 8 FMSHRC 1624, 1629 

(November 1986)) and we discern nothing in the present record that would 

justify us taking this extraordinary step. Therefore, we conclude that 

substantial evidence supports the judge's finding that Browning agreed 

to place Bryant on a recall panel and that Browning guaranteed that 

.Bryant would be called back to work within two or three days. Given 

ZI While Bryant testified that nothing was communicated to him about 

a job offer, he admitted that he knew that the union had agreed on his 

behalf to settle the grievance by having him placed on a recall panel 

and that he knew at the time of his resignation that Browning had 

offered to put him on a recall panel. Tr. 308, 311. 

1181 
these findings, we hold that Browning's offer; which Bryant refused, was 

more than a "mere promise" of a job. 

The judge did not explicitly find that Bryant's rejection of 

Browning's offer was unreasonable, but his conclusion that Bryant's 

refusal of the of fer and his resignation terminated the back pay period 

implies that it was. The fact that a recall panel had not been 

previously implemented does not mean that one would not be instituted in 

an effort to resolve the present dispute. Indeed, Bryant's representatives who had negotiated directly with Browning believed that 

Browning intended to do as he promised and the record supports the 

judge's finding that this belief was conveyed to Bryant. We especially 

note that at the time he rejected the offer and resigned Bryant had 

little to lose by accepting the offer. Had Bryant agreed he would have 

been put on a recall panel, with Browning's guarantee that he would have 

been reemployed. Thereafter, if Browning had failed to recall Bryant to 

work, Bryant would have had a clear basis for further relief. ~/ 

IV. 

Accordingly, we hold that Mullins and Winchester are liable under 

section lOS(c)(l) of the Mine Act for the discriminatory act of their 

agent, Dingess. Furthermore, we hold that Bryant's refusal to accept 

the off er to be placed on the recall panel and his subsequent 

resignation terminated his right to back pay beyond May 9, 1984. 

Therefore, the decision of the judge is reversed in part and affirmed in 

part. The judge, however, reduced the amount of attorneys' fees awarded 

to Bryant's attorneys by one-third, concluding in part that they had 

spent a large portion of their time attempting to establish the 

liability of Mullins and Winchester, a theory which he had rejected. 

9 FMSHRC at 942. The judge also noted that the damages recovered were 

limited to nine days backpay without reinstatement. The judge did not 

specify to what extent these two separate considerations individually 

contributed to his one-third reduction in the attorneys' fees awarded. 

In view of our reversal of the judge on the issue of the liability of 

Mullins and Winchester, and our affirmance on the issue of backpay, we 

therefore find it necessary to remand this proceeding to the judge for a 

redetermination of the attorneys' fees award. 

~/ Bryant alleges that during the discussions with Browning no 

mention was made regarding the correction of safety hazards on the 

shuttle car. Tr. 309. Bryant argues that accepting the job offer 

without an agreement to correct the safety hazards of which he 

complained would allow Dingess to avoid compliance with mine safety 

standards. PDR 26. This argument misses the mark. Bryant was not to 

be recalled as a shuttle car operator. Also, should Bryant have 

returned to work and have found working conditions that he, in good 

faith, believed to be hazardous, he had the right, to request an 

inspection by MSHA or to engage in another protected work refusal. 30 

u.s.c. § 813(g). 

1182 
. Accordingly, the judge's decision is affirmed in part, reversed in 

part and remanded for further proceedings consistent with this decision. 

~~· Commissioner 

L. 

~7lt£~ Clair Nelson, Commissioner 

1183 
Doyle, Commissioner, concurring in part and dissenting in part: 

I concur with the majority that substantial evidence supports the 

judge's decision that the adverse action against Bryant terminated when 

Bryant refused reemployment and resigned. I respectfully dissent, 

however, from the majority's legal determination that Mullins and 

Winchester exerted substantial control over the most significant 

aspects of the mine's operation and that, thus, Dingess was their 

agent. Based on this determination, the majority found that Mullins 

and Winchester were liable for Dingess' discriminatory action against 

Bryant. I disagree. 

While acknowledging that the judge did not find that Dingess was 

an agent, the majority bases its decision that Dingess was not an 

independent contractor on four specific fact determinations made by the 

administrative law judge, which, they believe, lead to the conclusion 

that Dingess was, in fact, an agent. 

The first fact on which the majority relies is that Dingess never 

previously operated an underground mine. While there is no dispute that 

the Dingess brothers had not themselves previously operated a mine, 

Mullins had "direct knowledge of the work history of Joe and Johnny 

Dingess in deep mine operations, to the extent that [they] felt comfortable that they were familiar with coal mining operations." Tr. 197. 

See also Tr. 93-94. Mullins' decision to hire Dingess was also based on 

its eight months experience with the Dingess brothers during which they 

served as an electrical contractor for Mullins/Winchester. They were 

found to be hard working, diligent, straightforward, knowledgeable and 

reputable and they had delivered quality work, on schedule, within 

budget. Tr. 199. Whether it was reasonable or unreasonable, wise or 

unwise, for Mullins to hire Dingess as an underground mining contractor 

is a question of fact and could turn on other factors, such as the 

technical expertise of those Dingess planned to hire, of which we have 

no evidence of record. But whatever those factors might show, they have 

no bearing on the issue of control, which the majority observes is determinative in deciding whether Dingess was an independent contractor or the 

agent of Mullins. 

The second factor on which the majority relies is what they characterize as "close supervision" of the manner in which mining was carried 

out. Mullins retained the right to approve Dingess' mining plans and 

the judge found that Mullins hired an engineering firm to prepare mine 

maps and to perform some ventilation calculations, and were instrumental 

in having Dingess develop a second section. I do not find any of these 

actions to be indicative of the type of control that differentiates an 

independent contractor from an agent. Retaining the right to approve 

mining plans is standard in the coal mining industry, required by 

owners, lessors and production operators alike in order to assure that 

the reserves are not robbed by an operator seeking to mine what can be 

1184 
obtained quickly and cheaply and leaving what is difficult and expensive. 

·Neither the preparation of maps to reflect the mine plans nor the performance of ventilation calculations reflect control or anything more 

than assistance in performing specific tasks required to fulfill an 

operator's obligations under the Mine Act. In addition, it is 

unrealistic to think that, whatever the relationship between production 

operator and contract miner, a second section would be developed without 

consultation and negotiation between them, if only to assure that the 

additional coal could be processed and sold. 

The third finding of fact on which the majority relies in concluding tha·t an agency relationship exists, is that Mullins and Winchester had a "continuing presence at the mine." There is no dispute 

that Cook inspected the mine frequently to insure compliance with 

mine plans, to inspect roof and dust control and to monitor surface 

drainage. Tr. 97a-97b. He had to "get on" Dingess about surface dust 

control and he instructed them on compliance with state environmental 

requirements. Tr. 97b. In essence, Cook tried to assure that Dingess 

obeyed federal and state laws and regulations. 

As the U.S. Court of Appeals for the D.C. Circuit noted in Local 

777, Democratic Union Organizing Comm. v. NLRB, 603 F.2d 862, 87~ 

"Government regulations constitute supervision not by the employer but 

by the state." The court went on to state: 

Thus, to the extent that the government 

regulation of a particular occupation 

is more extensive, the control by a 

putative employer becomes less extensive 

because the employer cannot evade the.law 

either and in requiring compliance with the 

law he is not controlling the [independent 

contractor]. It is the law that controls 

the [independent contractor]. Thus requiring [independent contractors] to obey 

the law is no more control by the lessor 

than would be a routine insistence upon 

the lawfulness of the conduct of those 

persons with whom one does business. 

603 F.2d 875. The court found this to be a far cry from the restrictions 

alluded to in the Restatement (Second) of Agency, §220, in which a 

person's physical activities and his time are surrendered to the control 

of a master. I find the behavior here of Cook in a.t tempting to assure 

Dingess' compliance with laws, regulations and permit restrictions, even 

if done only to protect Mullins/Winchester from citations, penalties and 

permit revocations on account of Dingess' behavior, to be simply that, 

and not evidence that Mullins/Winchester were exerting substantial 

control over Dingess. See also Moushey v. United States Steel 

Corporation, 374 F.2d 561, 568 (3rd Cir. 1967). 

1185 
The last fact on which the majority relies is Mullins' and 

Winchester's handling of numerous financial transactions on behalf of 

Dingess regarding its debt payments and their making cash advances to 

Dingess. While I do not see that cash advances bear at all on the 

issue of control, the other transactions may, in fact, indicate an 

element of control, depending to some extent on whether Dingess 

authorized the procedure, agreed to it, or merely acquiesced in it, 

which the record does not make clear. They should be weighed along with 

any other record evidence of those factors that actually reflect on an 

agency versus independent contractor relationship. 

Although "[a]ll of the circumstances" are to be examined in determining whether one is an employee or an independent contractor, FritoLay, Inc. v. NLRB, 385 F.2d 180, 187 (7th Cir. 1967); NLRB v. A.S. 

Abell Co., 327 F.2d 1, 4 (4th Cir. 1964), the most important element 

is the extent of the actual supervision exercised by the putative 

employer over the "means and manner" of the worker's performance. 

Lodge 1858 v. Webb U.S. D.C., 188 U.S. App. D.C. 233, 241-245, 580 

F. 2d at 504-508 ( 197 8) ; Independent Owner-s-Opera tors, Inc. v. NLRB, 

407 F.2d 1383, 1385 (9th Cir. 1969). While the majority concludes 

that "Dingess was acting as a supervisory agent in a working environment 

where the operation of the mine was effectively controlled and directed 

by Mullins and Winchester" (Slip op. at 6), the record reflects otherwise. 

Complainant's own witness, Stanley Wells, testified that Roger Cook never 

told him to do anything in the mine, that he wouldn't have done it anyway, 

and that he (Cook) "didn't have nothing to do with the mines." Tr. 151, 

152. He testified further that he never observed Cook directing any of 

the other miners. Tr. 152. Donnie Adams never saw Roger Cook or any 

other Winchester employee at the mines. Tr. 133. Browning hired Bryant 

without checking with anyone else. Tr. 46-47. He told him to shoot coal 

rather than run the shuttle car when Bryant complained about its condition. 

Tr. 25. He settled Bryant's union grievance, Tr. 36. Reed Peyton was 

hired by Joe Dingess and told to report to Browning. Tr. 81. Donnie 

Adams was hired by Aaron Browning, and considered him to be the boss. 

Tr. 126, 130. In addition, the judge specifically found that no miner 

complained to Cook about unsafe equipment and that Dingess, and not 

Mullins/Winchester, hired Bryant, directed his work activity and laid 

him off. 9 FMSHRC 339, 343. He further found that Mullins/Winchester 

were in no way involved in the adverse action against Bryant. 

9 FMSHRC 343. 

It is also clear from the record that Mullins/Winchester did not 

control the Dingess brothers. Mullins/Winchester had to follow up and 

do things that Dingess failed to do. Tr. 97(c), Tr. 117. Joe and 

Johnny Dingess were never around the mines, nobody knew where they were. 

Tr. 111, 112. The Dingesses failed to comply with DNR requirements even 

though urged to do so by Mullins/Winchester, they simply didn't do it. 

Tr. 118. Sometimes Roger Cook would notify Dingess about rock dusting 

and "sometimes they would do it and sometimes they wouldn't." Tr. 143. 

1186 
I find nothing in either the judge's findings of fact or in the 

.record .which, on balance, leads me to conclude that Dingess was the 

agent of Mullins/Winchester rather than an independent contractor. 

Rather, I find that the record shows the contrary. Mullins/Winchester 

hired a contractor that they thought was competent. As time went on, 

Dingess' performance deteriorated in terms of both coal production 

and in performance of its obligations under their contract and under 

federal and state mining laws and regulations. Mullins/Winchester 

did not stand idly by in the face of Dingess' deteriorating performance and the majority concludes that these efforts, many of them 

aimed toward compliance with the Mine Act, destroyed Dingess' status 

as an indepeudent contractor. I disagree. I do not believe that 

Mullins/Winchester's actions exhibited the type or degree of control 

necessary to destroy the independent status of Dingess. Further, I 

am ci'f the opinion that owners should be encouraged to monitor compliance 

by their contractors rather than discouraged from doing so. Accordingly, 

I would find that Mullins/Winchester were not liable under section 

105(c)(l) of the Mine Act for Dingess' discriminatory acts under the 

Complainant's agency theory. Thus, in my opinion, Mullins/Winchester's 

liability or lack thereof would turn on the Complainant's strict 

liability theory, a matter not reached by the majority. 

Distribution 

Barbara Fleischauer 

Attorney at Law 

346 Watts Street 

Morgantown, West Virginia 26505 

Robert Q. Sayre, Jr., Esq. 

Goodwin & Goodwin 

1500 One Valley Square 

Charleston, West Virginia 25301 

Paul R. Sherdan, Esq. 

Applachian Research & Defense 

Fund Inc. 

504 White and Browning Bldg. 

Logan, West Virginia 25601 

Dengess Mine Services. 

Mr. Joe Dingess 

Mr. Johnny Dingess 

Box 1024 

Chapmanville, West Virginia 25508 

<2~tl~ "Joyce A. Doyle, COlll1lliiOiler 

Administrative Law Judge James A. Broderick 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1187 
1188 
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 

SEP 1 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GATEWAY COAL COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 87-251 

A.C. No. 36-00906-3651 

Gateway Mine 

DECISION 

Appearances: Therese I. Salus, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary of Labor1 

David Saunders, Safety Director, Gateway Coal Co., 

Prosperity, Pennsylvania, for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary of Labor (Secretary) seeks a civil penalty for 

the violation of 30 C.F.R. § 75.329 alleged in a citation issued 

October 10, 1986, in connection with an imminent danger 

withdrawal order issued the same day. Respondent did not contest 

or seek review of the withdrawal order and, although both parties 

have submitted argument as to whether it was properly issued, it 

is not before me in this penalty proceeding. The citation 

charged that Respondent permitted an excessive concentration of 

methane to exist in a travelable portion of the 5-butt, 7-face 

longwall bleeder system in the number 45 crosscut of the tailgate 

entry of the subject mine. Respondent contends that the 

inspector took the methane reading in the wrong area of the 

bleeder system. Pursuant to notice, the case was heard in 

Washington, Pennsylvania, on June 8, 1988. Joseph F. Reid and 

Alex O'Rourke testified on behalf of the Secretary. Gary Hajdu 

and Robert w. Hauser testified on behalf of Respondent. Both 

parties have filed post hearing briefs. I have considered the 

entire record and the contentions of the parties, on the basis of 

which I make this decision. 

1189 
FINDINGS OF FACT 

1. At all times pertinent to this proceeding, Respondent 

was the owner and operator of an underground coal mine in Greene 

County, Penn·sylvania known as the Gateway Mine. 

2. Respondent produced approximately 689,000 tons of coal 

annually. 

3. No evidence was submitted concerning Respondent's 

history of prior violations. I conclude that the history was 

favorable, and not such that a penalty otherwise appropriate 

should be increased because of it. 

4. On October 10, 1986, Federal mine inspector Joseph Reid, 

an MSHA ventilation specialist, was assisting a regular MSHA 

inspector on an inspection of the subject mine. They proceeded 

first to the 5-butt, 7-face longwall. Coal was not being mined 

at that time. 

5. The inspectors walked out of the mine through the return 

escapeway, examining the various bleeders on the way out. 

Inspector Reid took methane readings in approximately 20 areas in 

the bleeder system. This was an area from which pillars had been 

extracted. 

6. At the end of the tailgate entry of the bleeder system, 

approximately 3 feet from the gob area, Inspector Reid took 

readings showing 4.8 to 5.2 percent methane, at a point 12 inches 

from the roof. The readings were taken with a hand held methane 

detector. The area was well supported with cribs. The inspector 

was standing between 2 cribs when he took the readings. 

Inspector Reid orally informed Respondent that he was issuing an 

imminent danger withdrawal order. The inspector then took three 

bottle samples from the same area. He took an air reading at the 

location where the air was crossing the gob and found 2397.5 

cubic feet per minute. 

7. The bottle samples were sent to the MSHA laboratory in 

Mt. Hope, West virginia. Analyses showed methane concentrations 

of 4.23 percent, 7.13 percent and 7.81 percent. 

8. Inspector Reid issued withdrawal Order No. 2681195 under 

section 107(a) of the Act, and citation 2681196 under section 

104(a) charging a violation of 30 C.F.R. § 75.301. The citation 

was modified July 1, 1987, to charge a violation of 30 C.F.R. 

§ 75.329. 

9. The bleeder entries are required to be examined weekly 

by a certified person. A date board indicating such examinations 

1190 
was maintained in the area of the citation, approximately ten 

feet furth~r from the gob than the point where the inspector took 

his readings. 

10. Although coal was not being mined, there were 

approximately five people working in the longwall area when the 

order and citation were issued. The inspector decided not to 

order these men withdrawn but to permit the mine foreman to 

attempt to correct the situation. 

11. The condition was abated, the order lifted, and the 

citation terminated the same day when a stopping was opened to 

introduce additional ventilation into the area. Readings were 

then taken in the area involved showing 1.4 percent to 1.5 

percent methane. 

12. During the initial inspection, the inspector took 

additional methane readings at the regulator and at the mixing 

point in the bleeder entry in question and found 17 percent 

methane. 

13. Respondent's assistant mine foreman, Gary Hajdu 

accompanied Inspector Reid on October 10, 1986. He took readings 

with a methane detector at a point approximately 10 to 15 feet 

from .the crib where the Inspector had found the excessive methane. 

Foreman Hajdu's readings showed from 2.7 to 3 percent methane. 

He also took readings at the outby side of the crib and found 4.3 

to 5 percent methane. He took further readings at the regulator 

and found 1.3 to 1.7 percent methane. The regulator was 

approximately 150 feet from the gob. 

REGULATION 

30 C.F.R. § 75.329 provides in part: 

• • . all areas from which pillars have been • • • 

extracted • • • shall be ventilated by bleeder entries 

or by bleeder systems. • • • When ventilation of such 

areas is required, such ventilation shall be maintained 

so as continuously to dilute, render harmless, and 

carry away methane and other explosive gases within 

such areas and to protect the active workings of the 

mine from the hazards of such methane and other 

explosive gases. Air coursed through the underground 

areas from which pillars have been wholly or partially 

extracted which enters another split of air shall not 

contain more than 2.0 volume per centum of methane, 

when tested at the point it enters such other 

split • • • 

1191 
ISSUES 

1. Whether the methane readings found by Inspector Reid on 

October 10, 1986, constituted a violation of 30 C.F.R. § 75.329? 

2. If a violation is found, was it significant and 

substantial? 

3. If a violation is found, what is the appropriate 

penalty? 

CONCLUSIONS OF LAW 

IMMINENT DANGER 

As I noted above, the inspector issued the citation charging 

the violation with which we are here concerned, in connection 

with an imminent danger withdrawal order under section 107(a). 

Both parties have introduced evidence concerning the existence 

vel non of an imminent danger and have argued the question in 

their post hearing briefs. However, Respondent did not file a 

contest or an application for review of the order with the 

Commission. The propriety of the issuance of the order cannot be 

challenged in a penalty proceeding. The issues before me are 

whether the alleged violation took place and, if so, the 

appropriate penalty. I make no finding as to whether an imminent 

danger existed. 

WHERE WERE THE READINGS AND SAMPLES TAKEN 

There is some dispute as to where Inspector Reid took his 

methane detector readings and his bottle samples. Reid testified 

that he took them at a point about three feet from the gob area 

and twelve inches from the roof while standing between two cribs. 

Respondent's witness intimated that he took them while reaching 

into the gob. I accept Inspector Reid's testimony which is 

consistent with his contemporaneous notes CGover111~ent's 

Exhibit 6). 

REQUIREMENTS OF 30 C.F.R. § 75.329 

The regulatory standard has two distinct mandates: Cl> 

ventilation in bleeder entries required where pillars have been 

extracted shall be maintained so as to dilute, render harmless 

and carry away methane within such areas and to protect the 

active workings of the mine; (2) air from· such areas which enters 

another split of air shall not contain more than two percent 

methane. Itmann Coal Company v. Secretary, 2 FMSHRC 1986 (1980). 

Active workings is defined in the regulations as "any place in a 

coal mine where miners are normally required to work or travel." 

1192 
30 C.F.R. § 75.2Cg)(4). Respondent is charged with failing to 

ventilate the area of its bleeder system so as to dilute, render 

harmless and carry away methane within such areas. It is not 

charged with permitting excessive methane concentrations at the 

regulator or mixing points. 

VIOLATION 

There is no dispute that the readings and bottle samples 

taken by Inspector Reid showed methane in a potentially explosive 

concentration. Methane is explosive when its concentration is 

between 5 and is percent. I have found that the readings and 

samples were taken in a travelable portion of the bleeder system. 

In fact they were taken within ten feet from the date board 

maintained by the mine examiner. Therefore, this was an area 

where miners are normally required to travel. It constituted 

active workings of the mine. Since Respondent failed to dilute 

and render harmless methane within such areas, a violation of 30 

C.F.R. § 75.329 has been established. Respondent cited the case 

of Secretary v. Greenwich Collieries, 8 FMSHRC 1390 (1986), but 

that case involved a second requirement of § 75.329: methane 

concentrations at bleeder evaluation points in excess of two 

percent. It did not involve a charge of methane in an explosive 

concentration. It is not applicable to this case. 

SIGNIFICANT AND SUBSTANTIAL 

A violation is properly termed significant and substantial 

if it contributes to a safety hazard reasonably likely to result 

in serious injury. Mathies Coal Co., 6 FMSHRC 1 (1984). Methane 

will explode if it exists in the 5 to 15 percent range in the 

presence of any ignition. An ignition may be created by a roof 

fall which causes a spark. Roof falls in or at a gob area are 

reasonably likely to occur. A methane explosion in an active 

workings of a coal mine is likely to result in serious injury. I 

conclude that the violation was significant and substantial. 

OTHER CRITERIA 

There is no evidence as to how long the violative condition 

had existed. The area was examined weekly. I am not able on 

this record to conclude that the condition resulted from 

Respondent's negligence. The condition was abated promptly by 

introducing additional ventilation to the area. 

PENALTY 

Considering all the evidence in the light of the criteria in 

section llOCi> of the Act, I conclude that a civil penalty of 

$500 is appropriate for the violation found. 

1193 
ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citation 2681196 issued October 10, 1986, charging a 

violation of 30 C.F.R. § 75.329 is AFFIRMED including its 

findings that the violation was significant and substantial. 

2. Respondent shall within 30 days of the date of this 

order pay a civil penalty in the amount of $500 for the violation 

found herein. 

Distribution: 

j ,) ,. 1 /j~ z:c(.-l-l . / tr_,{, !,(,,£, s .. Ar et\_ 

James A. Broderick 

' Administrative Law Judge 

Therese I. Salus, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

David Saunders, Safety Director, Gateway Coal co., R.D. #2, Box 

107, Prosperity, PA 15329 (Certified Mail> 

slk 

1194 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 8 1988 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RIVCO DREDGING CORPORATION, 

Respondent 

. 

. 

. . 

. . 

. . 

Docket No. KENT 87-147 

A.C. No. 15-12672-03506 

Docket No. KENT 87-151 

A.C. No. 15-12672-03505 

Docket No. KENT 87-158 

A.C. No. 15-12672-03507 

: Docket No. KENT 88-35 

A.C. No. 15-12672-03508 . . River Dredge Mine 

DECISION 

Appearances: G. Elaine Smith, Esq., Office of the 

Solicitor,u.s. Department of Labor, Nashville, 

Tennessee, on behalf of the Petitioner~ 

Gene A. Wilson, Esq., President, Rivco Dredging 

corporation, Louisa, Kentucky, appearing on his 

own behalf. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

These proceedings were filed by the Secretary of Labor, 

Mine Safety and Health Administration (MSHA), under section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 820(a) (hereinafter the Act), to assess civil 

penalties against the Rivco Dredging Corporation (Rivco). 

Pursuant to notice, these matters were heara on 

April 27, 1988 in Huntington, West Virginia. Both parties 

appeared, introduced evidence and submitted post-hearing 

arguments which I have considered in making this decision. 

with regard to the history of previous violations by 

Rivco, I find the number of violations in the two years 

previous to the inspections at issue to be few and that the 

size of Rivco can be considered small. Furthermore, in the 

1195 
absence of any specific evidence to the contrary, I find that 

the proposed penalties, if they are assessed, will not effect 

the ability of Rivco to continue in business. 

I. Docket No. KENT 87-147 

Citation No. 2776057 

The inspector alleged in the citation that: 

The tail roller of the stacking belt at the dredge 

screening plant is not adequately guarded in that 

the entire back of the roller is exposed and the 

sides approx. 50% exposed whereby a worker engaged 

in maintenance or cleanup can contact such roller 

thereby incurring a serious injury. 

30 C.F.R. § 77.400Ca> provides that: "Gears; sprockets; 

chains; drive, head, tail, and takeup pulleys; flywheels; 

couplings; shafts; sawblades; fan inlets; and similar exposed 

moving machine parts which may be contacted by persons, and 

which may cause injury to persons shall be guarded." 

Inspector Hatter, a mine inspector employed by MSHA for 

approximately thirteen years, had occasion to issue the above 

citation on October 8, 1986. He testified that the tail 

roller of the stacking belt at the dredge screening plant 

wasn't provided with an adequate and proper guard in the tail 

area. He considered this to be a violation because the tail 

roller was supposed to be guarded in accordance with 

30 C.F.R. § 77.400(a). 

Inspector Hatter allowed thirty days for abatement of 

this citation, but when he returned on February 18, 1987, he 

found that the tail roller had been only partially guarded 

and was still in non-compliance with the mandatory standard. 

The inspector thereupon issued section 104Cb) Order No. 

2769993 for failure to abate the subject citation. The 

condition was abated on or before the inspector's next visit 

to the site on March 23, 1987. 

Rivco does not dispute these facts, but states that the 

conveyor had been completely disassembled for moving to a new 

dredging location and was not in a condition for inspection 

when Inspector Hatter appeared while this was in progress and 

wrote the citation. In any event, Rivco disputes that this 

1196 
is a significant and substantial C"S&S") violation as marked 

by the inspector. 

Inspector Hatter testified that where rollers are not 

properly guarded, persons working in the area may get a piece 

of clothing caught in one or might get a tool caught in one, 

resulting in a personal injury type accident. He assessed 

the risk of the occurrence of this condition and such an 

injury as reasonably likely if a proper guard wasn't provided. 

I find Hatter's testimony to be credible concerning both the 

fact of violation and "S&S", assess the negligence of the 

operator to be moderate and the gravity as serious. Furthermore, I credit Hatter's testimony that the operator was 

producing coal on the morning the citation was written. 

Accordingly, Citation No. 2776057 is affirmed as issued 

and I find an appropriate civil penalty to be $150, as 

proposed. 

Citation No. 2776060 

The inspector alleged in the citation that: 

A sign warning against smoking and use of open 

flame is not posted at the diesel fuel storage tank 

outby the screening plant. The sign thereon is so 

weathered as to be illegible. 

30 C.F.R. § 77.1102 provides that: "Signs warning 

against smoking and open flames shall be posted so they can 

be readily seen in areas or places where fire or explosion 

hazards exist." 

The respondent essentially admits the violation, stating 

that the sign was "not very legible". However, the 

respondent also introduced evidence to the effect that the 

tank in question is actually owned by the Ashland Oil Company. 

The tank is brought into them by Ashland and they_ do not 

always get the same fuel tank. Mr. Wilson testified that 

some of them are well-marked and others are not so 

well-marked. This particular one was not so well-marked and 

therefore was in violation of the cited standard. However, 

under the circumstances I find only slight negligence on the 

part of the operator. Accordingly, I am going to affirm the 

non "S&S" citation, but assess a civil penalty of only $50, 

vice the $122 proposed. 

1197 
Citation No. 2784423 

The inspector alleged in the citation that: 

Safe access is not provided on the deck or walkway 

on each side of the dredge where workers are 

required to travel from and to the dredge itself as 

well as the engine and control rooms and various 

locations for examination and maintenance. The 

dredge deck is of more or less smooth metal 

construction which can become slick in inclement 

weather or frost. No hand rail, safety chain or 

cable is provided for prevention of a worker 

falling or falling overboard. 

30 C.F.R. § 77.205Ca) provides that: "Safe means of 

access shall be provided and maintained to all working 

places." 

It is undisputed that there was no handrail, safety 

chain or cable provided to prevent a worker from slipping and 

falling off the dredge. However, the respondent disputes the 

need for any such safety devices. I concur with the 

inspector that some means is necessary to assure safe access 

to the dredge, at least in inclement weather. I take 

administrative notice that smooth sheet metal would become 

slick in wet conditions such as rain, sleet or snow. I also 

find that the violation is "S&S" because in such weather 

conditions, it is reasonably likely that someone would slip 

and fall and sustain a serious injury, without some sort of 

handrail to hold onto. 

I accordingly affirm Citation No. 2784423 as an "S&S" 

violation but reduce the operator's negligence to "low" from 

"moderate" because I feel the operator genuinely felt that 

any sort of handrail was unnecessary and they have operated 

in that configuration for seven years with no one previously 

suggesting otherwise. Therefore, I find that a civil penalty 

of $110 vice the $150 proposed is more appropriate. 

Citation No. 2784425 

The inspector alleged in the citation that a violation 

of 30 C.F.R. § 77.400(a) had occurred and the condition or 

practice was alleged to be: 

1198 
The back portion and the LT. C in by) side of the 

plant feed belt tail roller is not adequately 

guarded in that the back is guarded only by 

X-bracing of the plant feeder hopper structure and 

the LT. side is· exposed. j.ust inside the feeder base 

structure whereby a worker can contact such roller 

and incur a serious injury during maintenance or 

cleanup. 

The respondent, through Mr. Wilson, admitted that the 

tail roller did not have a wire mesh guard on the one side, 

but argued that it was unnecessary as it would be difficult 

for someone to get into this area. Inspector Hatter, on the 

other hand, testified that a person could reach in there with 

a tool to contact the roller and thereby incur injury. I 

find a non "S&S" violation herein and moderate negligence on 

the part of the operator. As in all the citations issued in 

this case, a §104(b) order subsequently had to be issued to 

persuade Rivco to abate the citation. Accordingly, I find 

that a civil penalty of $122, as proposed, is appropriate. 

Citation No. 2784426 

The inspector alleged in the citation that a violation 

of 30 C.F.R. § 77.400(a) had occurred and the condition or 

practice was alleged to be: 

A guard is not provided for the v-belts and pulleys 

of the coal elevator where a person is required for 

examination and maintenance. Such v-belts and 

pulleys are located immediately adjacent to the 

catwalk where personal contact therewith can cause 

a serious injury. 

The record establishes a violation of the cited standard. 

However, because this unguarded pulley is in a very remote 

area of the plant where no one goes except for the foreman to 

grease on occasion and the electrical inspector to inspect, 

and they only when the plant is not in operation; I find that 

the probability is very slight, i.e., unlikely that a worker 

would be injured in the area where the belt is exposed. 

Therefore, I affirm Citation No. 2784426, only as a non "S&S" 

citation. Also, because of the remoteness of this particular 

violation and its foreseeable consequences, I find only 

slight operator negligence. Accordingly, I will reduce the 

proposed civil penalty of $195 to $75. 

1199 
Citation No. 2784427 

The inspector alleged in the citation that a violation 

of 30 C.F.R. § 77.205(a) had occurred and the condition or 

practice was alleged to be: 

Safe access is not provided to the coal elevator 

drive in that a worker is required to climb over a 

handrail adjacent to the upper shaker catwalk to 

gain access to the travelway leading to the 

elevator, which can result in a slip or fall and 

serious injury. 

Although this is not a regular work area, workers must 

use this travelway for the monthly electrical inspection or 

on an as needed basis to perform other tasks such as to 

repair belt breakage or to service the head drive. The 

record establishes a violation of the cited standard and I 

agree with the inspector that a slip and fall hazard existed. 

I likewise assess the operator's negligence as moderate and 

find the proposed civil penalty of $122 to be appropriate to 

the offense. 

Citation No. 2784428 

The inspector alleged in the citation that a violation 

of 30 C.F.R. § 77.205(a) had occurred and the condition or 

practice was alleged to be: 

Two holes exist in the main plant floor about 16' 

wide x 26" long x S" deep, of which approx. 8' of 

each hole is covered by wire mesh screen, the 

remainder being left open where a worker can step 

into either hole and fall resulting in serious 

injury. 

The cognizant standard only requires that a safe means 

of access shall be provided to all working places. I find 

the respondent's evidence to be credible to the extent that 

these two drainage holes in the floor are in an area 

completely outside the normal flow of foot traffic and usual 

access to any working place. A usable, safe walkway is 

provided through, or rather around and over the cited area. 

There is no reason apparent to me that a worker would be in 

the area of the drain holes cited by Inspector Hatter. 

Accordingly, Citation No. 2784428 will be vacated. 

1200 
II. Docket No. KENT 87-151 

Citation No. 2776055 

Inspector Hatter alleged in this citation that: 

The dredge engine and pump access travelway where a 

worker is required to travel for maintenance and/or 

repair, is not kept free of extraneous material 

whereby a worker can trip-stumble and fall, thereby 

incurring a serious injury in that a length of 

approx. 3/8" chain, a length of water hose and a 5 

gal lube bucket lying on its side are found 

therein. 

30 C.F.R. § 77.205Cb> provides that: "Travelways and 

platforms or other means of access to areas where persons are 

required to travel or work, shall be kept clear of all 

extraneous material and other stumbling or slipping hazards." 

The inspector testified consistently with his written 

allegation, including his "S&S" special finding. The 

respondent doesn't dispute the fact that this clutter 

existed, but rather its purported defense is that they were 

still in the process of setting up, they were not producing 

coal at the time and basically were not ready for an 

inspection. That is in reality no defense at all. 

Accordingly, Citation No. 2776055 will be affirmed and a 

civil penalty of $50, as proposed, assessed. 

Citation No. 2776056 

The inspector alleged in the citation, as modified, 

that: 

Flammable liquid is not being stored in a safety 

can in that approx. 3/4 gal. of gasoline for 

fueling the bilge pump on the dredge, located in 

the engine room, is found in a "lawn mower'rtype 

can with no spring closing lid or spout cover. 

30 C.F.R. § 77.1103(a) provides that: "Flammable liquids 

shall be stored in accordance with standards of the National 

Fire Protection Association. Small quantities of flammable 

liquids drawn from storage shall ba Kept in properly 

identified safety cans." 

1201 
Again, the respondent does not deny the gas can was on 

the dredge but avers that it was only on the dredge 

temporarily for transportation and would have been unloaded 

off the dredge in due time. It was not intended to be left 

aboard. I find a violation of the cited standard and assess 

a civil penalty of $20, as proposed. 

Citation No. 2776059 

The inspector alleged in the citation that: 

No type of fire extinguisher is provided at the 

above ground diesel fuel storage tank located outby 

the screening plant. 

30 C.F.R. § 77.1109Ce>Cl> provides that: "Two portable 

fire extinguishers, or the equivalent, ~hall be provided at 

each of the following combustible liquid storage installations: Cl) Near each above ground or unburied combustible 

liquid storage station." 

Mr. Wilson testified that there were probably six fire 

extinguishers being transported on the dredge and they were 

only approximately 150 feet away from the fuel storage tank. 

A fire extinguisher could have been taken over there in a 

"couple of minutes" per Mr. Wilson. I find that that is not 

"near" enough to comply with the standard and accordingly, I 

find a violation of the cited standard, affirm the citation 

and assess a civil penalty of $20, as proposed. 

Citation No. 2784421 

The inspector alleged in the citation that: 

The Clark/Michigan 125B Loader being used for 

loading coal is not provided with adequate brakes 

in that the parking brake falls to hold repeatedly 

on a slight grade. 

30 C.F.R. § 77.1605(b) provides that: "Mobile equipment 

shall be equipped with adequate brakes, and all trucks and 

front-end loaders shall also be equipped with parking 

brakes". 

Equipped with parking brakes implies that those parking 

brakes be capable of holding the equipment, even on a grade. 

The parking brakes at issue ad~ittedly would not do that. 

Therefore, I find the record herein establishes a violation 

1202 
of the cited standard. I affirm the citation, as issued, and 

assess a civil penalty of $20, as proposed. 

Citation No. 2784422 

The inspector alleged in the citation that: 

The Clark/Michigan 125B loader, being used for coal 

loading at the screening plant is not provided with 

a fire extinguisher continuously maintained in a 

usable condition in that the extinguisher provided 

thereon is discharged. 

30 C.F.R. § 77.1109(c)(l) provides that: "Mobile 

equipment, including trucks, front-end loaders, bulldozers, 

portable welding units, and augers, shall be equipped with at 

least one portable fire extinguisher." 

The regulation that the respondent is actually charged 

with being in violation of in this instance, 30 C.F.R. § 77.1110, 

provides: "Firefighting equipment shall be continuously 

maintained in a usable and operative condition. Fire 

extinguishers shall be examined at least once every 6 months 

and the date of such examination shall be recorded on a 

permanent tag attached to the extinguisher." 

The fire extinguisher the inspector found on the subject 

loader was discharged. Respondent did not contest this fact, 

but explained that this would have been found by them and 

exchanged for a charged one if they had been given the 

opportunity to do so. This is not a viable defense. 

I find the Secretary has sustained her burden of proving 

the existence of the instant violation and I affirm the 

citation and assess a civil penalty of $20, as proposed. 

Citation No. 2784429 

The inspector alleged in the citation that a violation 

of 30 C.F.R. § 77.205(a) had occurred and the condition or 

practice was alleged to be: 

The RT.(inby) side catwalk adjacent and providing 

access to the upper shaker screen at the plant is 

punctured with the expanded metal loose in an area 

approx. 30" long x 18" wide whereby a worker 

1203 
engaged in examination or maintenance can step 

through the screen and incur a serious injury. 

Rivco essentially admits the violation, but asserts that 

there were two other means of access to the same area and 

that the only person that goes up there anyway is the foreman. 

Nevertheless, I concur with the inspector that a violation of 

the cited standard occurred, and there was a reasonable 

likelihood that an injury accident could have happened. 

Furthermore, I find that a civil penalty of $50, as proposed, 

is appropriate under the circumstances •.. 

Citation No. 2784430 

Inspector Hatter alleged in this citation that yet 

another violation of 30 C.F.R. § 77.205Ca) had occurred in 

basically the same location and the condition or practice was 

alleged to be: 

Safe access is not maintained to the picking belt 

on the RT. (outby) side in that to gain access 

thereto, a worker must traverse Cl) the upper 

shaker catwalk which has a hole about 30 x 18" 

therein, (2) or use an unanchored crossover with no 

steps on the Rt. Coutby) side which causes a worker 

to climb up about 52" and swing around the shaker 

catwalk ladder to get to the crossover and go down 

the LT. (outby) side about 48 11 with only a 3" wide 

metal plate to step on. A worker is on each side 

of the belt picking rock and trash from coal. 

Respondent raised the issue at hearing of duplicitous 

pleading concerning this citation and the previous one (No. 

2784429). I agree. Abatement of Citation Nos. 2784429 and 

2784430 required exactly identical action. The hole in the 

right side of the upper shaker catwalk was repaired. These 

two citations charge exactly the same violation. I have 

already affirmed Citation No. 2784429. Therefore, I will 

vacate Citation No. 2784430 as pleading a multipricitous 

violation, for which a civil penalty has already been 

assessed. 

1204 
III. Docket No. KENT 87-158 

Citation No. 2784424 

The inspector alleged in the citation dated October 9, 

1986 that a violation of 30 C.F.R. § 77.400Ca) had occurred 

and the condition or practice was alleged to be: 

A guard is not provided for (5) five troughing 

rollers on the plant feed belt where a worker is 

observed picking rock and trash from coal and 

contact with such rollers can cause a serious 

injury. The condition exists on either side of 

such belt and no stop cord is provided. 

Subsequently, on November 21, 1986, section 104Cb> Order 

No. 2775975 was issued for failure to abate the instant 

citation. At a close out conference on November 25, 1986, 

agreement was had to terminate the order and citation on the 

basis that this particular area was no longer a work area, 

and that there was no foreseeable use for this area again. 

Mr. Wilson purportedly stated that if there ever was a need 

for this work area again, that guards would be installed 

before the work began. He also supposedly has instructed his 

work force not to work in this area. 

Respondent admits a worker was picking rock off a moving 

belt in close proximity to unguarded rollers, but nonetheless 

argues that there was no violation of the mandatory standard 

at 30 C.F.R. § 77.400(a) because it was not a "regular" work 

area. The cited standard, however, does not differentiate 

between regular work areas and irregular work areas. It 

merely requires moving machine parts which may be contacted 

and thereby cause injury to be guarded. Therefore, I find 

that a violation of section 77.400 (a) has been established. 

The record further establishes that the violation was a 

"significant and substantial" one. It doesn't take much 

imagination to follow Inspector Hatter's theory that if this 

worker was inattentive or slipped while reaching for a heavy 

piece of rock moving on this beltline, that she could catch 

her clothing or her arm in one of these unguarded rollers. I 

believe that this is a reasonably likely occurrence and if it 

in fact occurred would be reasonably likely to result in a 

serious injury to her. 

Applying the statutory criteria to the facts and 

circumstances at hand, I find that the $150 civil penalty 

proposed by the Secretary is appropriate. 

1205 
IV. Docket No. KENT 88-35 

Citation No. 2985265 

The inspector alleged in the citation that a violation 

of 30 C.F.R. § 77.400(a) had occurred on September 14, 1987 

and the condition or practice was alleg.~d to be: 

A guard is. not provided for the v-belt and pulleys 

at the head drive of the plant discharge belt where 

a worker engaged in examination or maintenance can 

contact such components with a serious injury 

resulting or if on the platform below, be struck by 

a broken belt fragment. 

The testimony of Hatter and Cantrell as well as the 

photograph marked and received in evidence as Government 

Exhibit No. 13 establish a violation of the cited mandatory 

standard. However, I accept as more credible the 

respondent's evidence as to the remoteness of the site of the 

unguarded belt and therefore find it unlikely that any worker 

would be injured by it. 

Therefore, I am going to modify the instant citation and 

aif irm it as a non "S&S" citation and reduce the proposed 

civil penalty of $42 to $20. 

Citation No. 2985267 

The inspector alleged in the citation that a violation 

of 30 C.F.R. § 77.205(a) had occurred dn September 14, 1987 

and the condition or practice was alleged to be: 

A safe means of access is not maintained on the LT. 

shaker catwalk adjacent to the shaker drive in that 

lack of support for the catwalk flooring metal 

allows the flooring to sag under a workers weight 

such that a foot will go under the flywheel guard 

and can contact the moving drive belt with s-erious 

injury. A worker is required to be in this area 

for cleaning and maintenance. 

Government Exhibit No. 14 illustrates that the flooring 

in the cited area sagged to the extent that a worker's foot 

could come into contact with the drive belt. Therefore, I 

find a violation of the cited mandatory standard. However, I 

regard the likelihood of this actually occurring as slight 

and the operator's negligence to be slight as well. 

1206 
Accordingly, I will reduce the civil penalty from the amount 

proposed, $42, to $20, and affirm the citation only as a non 

"S&S" citation. 

The "Jurisdictional" Issue 

Periodically while these cases have been on my docket 

Mr. Wilson has raised, subsequently abandoned and then raised 

again an issue loosely described as "jurisdictional". 

Respondent concedes that his coal processing plant does 

process coal and is therefore a "coal mine" within the 

meaning of the Act. However, Mr. Wilson contends that 

dredging coal is not a "coal mine", and while he concedes 

MSHA has jurisdiction under the Act to inspect his dredging 

operation, he believes that he should be inspected by the 

Sand and Gravel Division and not the Coal Division of MSHA. 

The reason for all of this being his belief that Inspector 

Hatter, who is a coal mine inspector, doesn't know anything 

about dredging operations or dredges and this lack of 

knowledge has caused Hatter to issue the instant flood of 

citations. Mr. Wilson points out that before Hatter and 

after Hatter, there were very few citations issued to the 

Rivco Dredging Corporation and in fact, several of the Hatter 

citations were subsequently vacated as "issued in error" 

before they came before this Commission. I note that several 

more have been vacated since, some of them by this decision. 

Be that as it may, I have no authority to order any 

particular MSHA division or off ice or any specific inspector 

to inspect or not inspect the respondent's facilities. That 

is a matter strictly within MSHA's purview. What I can and 

do decide herein is that the respondent's sand and coal 

extraction and processing operations are subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 

1977 and this Commission plainly has jurisdiction over this 

proceeding. 

Civil Penalty Assessments 

Upon consideration of the entire record in this case and 

the foregoing findings of fact and conclusions of law, I find 

that the assessment of civil penalties is warranted as 

follows: 

1207 
30 C.F.R. 

Citation No. Date Standard Penalty 

2776057 10/8/86 77.400(a) $150 

2776060 10/8/86 77.1102 50 

2784423 10/9/86 77.205(a) 110 

2784425 10/9/86 77.400(a) 122 

2784426 10/9/86 77.400(a) 75 

2784427 10/9/86 77.20.SCa) 122 

2776055 10/8/86 77.205(b) 50 

2776056 10/8/86 77.1103Ca) 20 

2776059 10/8/86 77.1109Ce)(l) 20 

2784421 10/8/86 77.1605(b) 20 

2784422 10/8/86 77.1110 20 

2784429 10/9/86 77.205Ca> 50 

2784424 10/9/86 77.400(a) 150 

2985265 9/14/87 77.400Ca> 20 

2985267 9/14/87 77.205{a) 20 

ORDER 

Accordingly, IT IS ORDERED that Citation Nos. 2784426, 

2985265 and 2985267 be, and hereby are, MODIFIED to delete 

the issuing inspector's findings that the cited violations 

were of such a nature as could significantly and 

substantially contribute to the cause and effect of a mine 

safety or health hazard. 

IT IS FURTHER ORDERED that Citation Nos. 2784428 and 

2784430 be, and hereby are, VACATED. 

Respondent IS ORDERED TO PAY civil penalties totaling 

$999 within 30 days of the date of this decision. 

rerative Law Judge 

Distribution: 

G. Elaine Smith, Esq., Office of the Solicitor, U.S. 

Department of Labor, 2002 Richard Jones Road, suite 201-B, 

Nashville, Tennessee 37215 (Certified Mail) 

Gene A. Wilson, Esq., Rivco Dredging Corporation, P. o. Box 

702, Louisa, Kentucky 41230 (Certified Mail) 

nt 

1208 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR · 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 8 1988 

WESTMORELAND COAL COMPANY, CONTEST PROCEEDING 

Contestant 

Docket No. VA 87-31-R 

v. Citation No. 2753219;8/12/87 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WESTMORELAND COAL COMPANY, 

Respondent 

. . 

. . 

. . 

DECISION 

Central Machine Shop 

CIVIL PENALTY PROCEEDING 

Docket No. VA 88-14 

A.C.·No. 44-03108-03507 

Central Machine Shop 

ID No. 44-03108 

Appearances: F. Thomas Rubenstein, Esq., Westmoreland Coal 

Company, Big Stone Gap, VA, for Respondent; 

James B. Crawford, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, VA, for 

Petitioner. 

Before: Judge Fauver 

In these consolidated proceedings Westmoreland Coal Company 

seeks to vacate Citation No. 2753219 under § 105(d) of the 

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

§ 801 et ~, and the Secretary of Labor seeks a civil penalty 

under § llO(i) of the Act for the violation cited. 

Based upon the hearing evidence and the record as a whole, I 

find that a preponderance of the substantial, reliable and 

probative evidence establishes the following: 

FINDINGS OF FACT 

1. Westmoreland owns and operates a surface facility near 

Stonega, Virginia, which includes Cl) a building housing a 

1209 
central warehouse and a central machine shop and (2) a fuel depot 

that includes gasoline and diesel storage tanks and fuel pumps to 

service Westmoreland's vehicles. 

2. The warehouse and machine shop are in the same building, 

but are separated by a wall and a security "airlock" room. They 

are managed by separate departments and personnel and their 

employees are not interchanged. 

3. The warehouse stores and distributes parts, supplies, 

and equipment used by a number of Westmoreland's coal mines, the 

nearest one being 2.5 miles away, and the machine shop repairs 

and maintains equipment used in those mines. 

4. The fuel depot, which is on the'same property and about 

200 to 300 feet from the warehouse/machine shop building, 

includes four 6,000 gallon storage tanks, fuel pumping filler 

pipes and fuel pumps to service vehicles. Only authorized 

Westmoreland vehicles may use the fuel pumps; these include 

vehicles that regularly transport employees, mining supplies, 

parts, and equipment to and from Westmoreland's coal mines. 

5. On August 12, 1987, MSHA Inspector Daniel S. Graybeal 

issued Citation No. 2753219 charging a violation of 30 C.F.R. 

§ 77.1103Cd) based upon the following alleged condition: 

The 240'0 gallon fuel storage depot was 

not kept free of combustible weeds and 

dry grass for a distance of 25 ft. 

as described below: vegetation ranging 

up to 18 inch[es] high had grown up to 

within 10 ft. of the four tanks on 3 

sides and within 5 ft. of the fuel 

pumping filler pipes. The vegetations 

consist of weeds and dry grass. The 

fuel tanks were capable of containing 

12000 gal. of gasoline and the same 

amount of diesel fuel. 

6. The factual allegations in the ci~ation were proved by 

substantial and convincing evidence and are incorporated as 

findings of fact. 

DISCUSSION WITH FURTHER FINDINGS 

Section 3Ch)(l) of the Act defines a "mine" broadly, as 

follows: 

Ch)( 1) "coal or other mine" means (A) an area of land from 

which minerals are extracted in nonliquid form or, if in 

1210 
liquid form, are extracted with workers underground, CB> 

private ways and roads appurtenant to such area, and CC) 

lands, excavations, underground passageways, shafts, slopes, 

tunnels and workings, structures, facilities, equipment, 

machines, tools, or other property including impoundments, 

retention dams, and tailings ponds, on the surface or 

underground, used in, or to be used in or resulting from, 

the work of extracting such minerals from their natural 

deposits in nonliquid form, or if in liquid form, with 

workers underground, or used in, or to be used in, the 

milling of such minerals, or the work of preparing coal or 

other minerals, and includes custom coal preparation 

facilities. * * * 

In U.S. Steel Mining Company, Inc., 10 FMSHRC 146 (1988), 

the Commission considered whether the Act applied to a mine 

operator's repair shop that repaired equipment used in its nearby 

coal mines. The Commission found it unnecessary to decide 

whether the repair shop was a "surface installation" of a coal 

mine and held, instead, that the "shop itself is a separate 

surface 'coal mine' within the meaning of the Act .••• " 

In W.F.Saunders & Sons, 1 FMSHRC 2130 (Decision of ALJ, 

1979), Judge Melick held that a storeroom owned by a mine 

operator was subject to the Act because parts and equipment 

stored there were regularly used in the operator's work of 

extracting coal. 

The Secretary contends that Westmoreland's fuel depot is a 

separate surface coal mine and, alternatively, that it is a 

functional part of the machine shop, which is acknowledged to be 

a covered mine. Westmoreland contends that the fuel depot is not 

a separate coal mine, but is a functional part of the central 

warehouse, not the machine shop, and therefore is not subject to 

the Act. 

I hold that the fuel depot is itself a separate surface coal 

mine within the meaning 3(h)(l) of the Act. The fuel depot is 

used only by Westmoreland's vehicles, including vehicles used on 

a regular and substantial basis to transport personnel, parts, 

supplies and equipment used in the work of extracting coal from 

Westmoreland's mines. 

The standard cited in Citation No. 2753219 C30 C.F.R. 

§ 77.1103(d)) requires that: 

Cd) Areas surrounding flammable liquid 

storage tanks and electric substations 

and transformers shall be kept free 

from grass (dry), weeds, underbrush, 

1211 
and other combustible materials, such 

as trash, rubbish, leaves and paper, 

for at least 25 feet in all directions. 

The Secretary proved a violation of this standard by a 

preponderance of the evidence. Considering the criteria for a 

civil penalty in § llOCi> of the Act, I find that the Secretary's 

proposed penalty of $78 is appropriate. 

CONCLUSIONS OF LAW 

WHEREFORE IT IS ORDERED that: 

1. Citation No. 2753219 is AFFIRMED. 

2. Westmoreland Coal Company shall pay the above civil 

penalty of $78 within 30 days of this Decision. 

~~al'~ Administrative Law Judge 

Distribution: 

F. Thomas Rubenstein, Esq., Westmoreland Coal Company, Legal 

Department, Big Stone Gap, VA 24219 (Certified Mail) 

James B. Crawford, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203 

(Certified Mail) 

kg 

1212 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR . 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 121988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

: Docket No. CENT 88-55-M 

A.C. No. 41-01001-05506 

v. 

: San Saba Plant 

TEXAS ARCHITECTURAL 

AGGREGATES INCORPORATED, 

Respondent 

Appearances: 

Before: 

DECISION 

E. Jeffery Story, Esq., Office of the 

Solicitor, U.S. Department of Labor, Dallas, 

Texas, for the Petitioner; 

David M. Williams, Esq., San Saba, Texas, for 

the Respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the 

petitioner against the respondent pursuant to section llOCa) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 820(a). Petitioner seeks a civil penalty assessment in the 

amount of $91 for an alleged violation of mandatory safety 

standard 30 C.F.R. § 56.11001. The respondent filed a timely 

answer contesting the alleged violation, and a hearing was 

convened in San Antonio, Texas. The parties waived the filing 

of posthearing briefs, but I have considered the arguments 

made on the record during the course of the hearing in my 

adjudication of this matter. 

Issues 

The issues presented in this case are Cl) whether the 

conditions or practices cited by the inspector constitutes a 

violation of the cited mandatory health standard; (2) the 

appropriate civil penalty to be assessed for the violation, 

taking into account the statutory civil penalty criteria found 

1213 
in section llOCi> of the Act; and (3) whether the violation 

was "significant and substantial." 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, 

Pub. L. 95-164, 30 u.s.c. § 801 et seq~ 

2. Section llOCi> of the 1977 Act, 30 u.s.c. § 820Ci>. 

3. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated to the following (Tr. 5): 

1. The name of the respondent company is 

Texas Architectural Aggregate, Inc. with the 

place of business at San Saba, Texas. 

2. Jurisdiction is conferred upon the 

Federal Mine Safety and Health Review 

Commission under the Federal Mine Safety and 

Health Act, 30 u.s.c. § 801 et seq. The 

alleged violation of the Act took place in or 

involves the mine that has products which 

affect commerce. 

3. The name of the mine is San Saba Plant 

and Quarry, identification number 41-0100. The 

mine is located at or near San Saba, Texas; 

San Saba county. The size of the company is 

118,207 production tons or hours work per year, 

and the size of the mine is 83,300 production 

tons or hours work per y~ar. 

4. The total number of inspection days in 

the preceding 24 months is 22 days. 

5. The total number of citatlons in the 

preceding 12 months is 46. 

The parties also stipulated to the admissibility of an 

MSHA computer print-out concerning the respondent's prior 

history of violations, and several photographic exhibits (Tr. 

6; exhibits P-2, P-3; R-1 through R-6). 

1214 
Discussion 

Section 104(a) "S&S" Citation No. 2868984, issued by MSHA 

Inspector Edward R. Lilly on July 27, 1987, cites an alleged 

violation of 30 C.F.R. § 56.11001, and the condition or 

practice is described as follows: 

Safe access was not provided to the 

disconnect and starter boxes to the big and 

small cone crusher. Persons were required to 

crawl oyer conveyor belt and steel "I" beam of 

the jaw crusher. The V-belt drive unit was 

located beside electrical boxes exposing person 

to moving machine parts and pinch points. 

Petitioner's Testimony and Evidence 

MSHA Inspector Edward R. Lilly testified that he issued 

the citation because safe access was not provided to the 

electrical switch boxes in question, in that a person would 

have to climb across a conveyor belt, step over an I beam, and 

across a V-belt drive unit to gain access to the switch boxes 

to deenergize the power in the event of an emergency. 

Mr. Lilly confirmed that the boxes were located under the 

crusher building control booth where the crusher operator is 

located to run the equipment. The boxes were located on a 

platform 7 or 8 feet off the ground, and in order to reach 

that location, foreman Kenneth Crim advised him that the 

crusher operator would use a ladder located on the other side 

of the building, and Mr. Lilly stated that once one reached 

the ledge of the platform by means of the ladder, he would 

have to crawl across a conveyor belt and around the end of the 

V-belt pulleys to gain access to the boxes. In his opinion, 

in the event of an emergency, one would have too many problems 

in climbing over these obstacles to timely turn off the 

switches. Mr. Lilly identified a photograph he took on May 5, 

1988, showing the area in question, and he confirmed that 

nothing had changed since the day he issued the citation, and 

he described what was in the photograph in response to several 

voire-dire questions by respondent's counsel (Tr. 14-19, 

exhibit P-3). 

Mr. Lilly confirmed that the crusher operator was in the 

control booth at the time of his inspection, and when he asked 

the operator how he gained access to the switch boxes in order 

to turn off the power for repair work, the operator advised 

him that he had to climb over the conveyor belt and across the 

tail pulley to pull the switches and locK out the equipment. 

Mr. Lilly confirmed that a stop-start button was located 

1215 
inside the booth to stop and start the equipment, but the main 

disconnect switch consisted of the cited boxes in question. 

Mr. Lilly further confirmed that the operator he interviewed 

was the person responsible for any maintenance work on the 

equipment, and that he would pull the main switches to kill 

the power when there was maintenance work to be done. The 

operator further advised him that he had on occasion pulled 

the main power switches in question, and when asked to 

describe the route that he took to accomplish this task, the 

operator advised him as follows CTr. 24-25): 

THE WITNESS: He told me that on occasion when 

the crusher was plugged up or they had to go 

into the crusher to get something out of it, 

that in order to make it safe, they would have 

to go pull the main power on this. And I asked 

him then how did he got over to pull the main 

power switch. 

He said he crawled across the conveyor 

belt, stepped on the I-beam between the V-belt 

drive, and over the V-belt drive onto the 

platform where the switch box is located. 

JUDGE KOUTRAS: Did he indicate to you whether 

or not all this equipment was operating or not 

operating? Or was that whole area shut down 

when he did this? 

THE WITNESS: The whole area was shut down. 

JUDGE KOUTRAS: ·.rhen he wasn't crawling over an 

operating conveyor belt? 

THE WITNESS: No, sir. He pushed the button, 

just the start/stop button to shut that down. 

But in order to go inside of a piece of equipment, the switch has to be pulled and locked 

out. A lock physically put on the switch. 

JUDGE KOUTRAS: But I am talking about crawling 

over -- the route he took to get to these junction boxes -- was !"le crawling over equipment 

that was energized and operating? Or was he 

working -- crawling over equipment. that was 

shut down and locked out? 

THE WITNESS: He was crawling over equipment 

that was shut down, not locked out because he 

1216 
had· to pull the power to lock it out. 

equipment -- if anyone had come up in 

trol booth, could push the button and 

equipment up. That is why we require 

locked out. 

But that 

the constart the 

it to be 

Mr. Lilly confirmed that his inspection party gained 

access to the switch boxes in question by means of a ladder 

pointed out to them by Mr. Crim. Mr. Lilly stated that he 

climbed up the ladder and climbed over the conveyors to reach 

the switch boxes. He confirmed that the switch boxes would 

have been directly accessible from the ground by means of a 

ladder placed directly up to the location of the boxes from 

ground level, but that no ladder was present (Tr. 30-31). 

Mr. Lilly stated that in order to abate the citation, he 

allowed the respondent to construct a ladder as a means of 

direct access to the switch boxes without the necessity of 

climbing over the conveyors. Once the ladder was used to gain 

access to the switches, it was to be removed and hung out of 

the way so that there was no access to the area for anyone 

except employees who had business there. The ladder was permitted as a temporary means of abatement so that the respondent would not have to guard all of the moving machine parts. 

Mr. Lilly stated that Mr. Williams advised him that he was in 

the process of building a new motor control center, and the 

switch boxes in question were to be eventually housed in a new 

building. Although some progress has been made to relocate 

the switch boxes, Mr. Lilly confirmed that they are still in 

the same location (Tr. 31-32). 

Mr. Lilly agreed that the use of a ladder for direct 

access to the switches, without the necessity for climbing 

over unguarded conveyors, would have been compliance, but at 

the time of his inspection, no ladder was being used. He 

agreed to the use of a ladder after the citation was issued 

because the respondent advised him that in a few months the 

switch boxes would be relocated, and he did not wish to 

subject the respondent to the financial burden of guarding the 

conveyors since the boxes were going to the moved (Tr. 35). 

On cross-examination, Mr. Lilly identified the crusher 

operator with whom he spoke on the day of his inspection as 

Phillip Brown, and he confirmed that Mr. Brown advised him 

that the route he took to reach the switch boxes was the one 

he described previously. Mr. Lilly could not recall asking 

Mr. Brown how long he had been employed at the mine (Tr. 

36-37). 

1217 
Mr. Lilly confirmed that he is not an electrician. He 

stated that he was told by Mr. Crim and Mr. Brown that the 

cited switch was the main switch, and.he understood that the 

stop-start s~itches were in the control booth. Referring to 

respondent's photographic exhibit R-5, Mr. Lilly identified 

the large switch box with a handle on the right as a main disconnect, but did not believe it was the main disconnect for 

the entire plant because the switch boxes underneath fed 

through the large box in question. He identified the red and 

black switch buttons shown in photographic exhibit R-6 as the 

stop-start switches inside the booth, and that all of the 

equipment was started and stopped with these switch buttons. 

Mr. Lilly believed that the large switch shown in exhibit R-5 

controls the primary crusher, and the cited switches controlled the large and small cone crushers, and he confirmed 

that this is how it was explained to him by Mr. Crim (Tr. 

39-40). 

Referring to photographic exhibits R-1 and R-2, Mr. Lilly 

confirmed that access to the cited switches could be made with 

no problem from under the open areas shown in the photographs 

by means of a ladder. Mr. Lilly stated that he observed no 

built-in ladders and that Mr. Crim advised him that he would 

have to build one. He also stated that while there was a 

ladder hooked to the side of a bin when he took the picture on 

June 27, 1988, he observed no ladders on the day of his 

inspection, and that he first observed a ladder when he 

returned to the mine 2 weeks or a month later to abate the 

citation. At that time, Mr. Crim showed him a ladder which he 

had constructed with two-by-fours (Tr. 41-43). 

In response to further questions, and referring to photographic exhibits R-1 and P-3, Mr. Lilly identified the location of the cited switches on the platform area beneath the 

operator's control booth. He indicated that the operator 

would exit the door to the booth, and go down the stairs to 

the platform below, and across the conveyor belt and an I-beam 

to gain access to the switches in question (Tr. 50-53). 

Mr. Lilly confirmed that both Mr. Crim and Mr. Brown told 

him that they had occasion to use the access route he described 

to reach the switch box locations, and Mr. Crim confirmed to 

him that this was the only available route. Mr. Lilly also 

confirmed that he was told that the switch boxes were required 

to be disengaged infrequently, or every 6-months, or twice a 

day or a week, depending on the scheduled change out of the jaw 

crushers, and the type of materials being processed (Tr. 58-59). 

1218 
Respondent's Testimony and Evidence 

Joe R. Williams, respondent's president and general manager, testified that he was familiar with the plant electrical 

system and helped design the original plant when it was built 

in 1960 and 1961. Referring to photographic exhibits R-1 

through R-6, Mr. Williams explained the location and function 

of several switch boxes used in the operation of the equipment. 

He identified the switch box which concerned Inspector Lilly 

as the one located on the lower deck beneath the control booth 

as depicted in exhibit R-1 (Tr. 62-66}. 

Mr. Williams stated that the disconnect switches for the 

large and small cone crusher would be accessed in the event of 

a malfunction in the starter motor, and that Mr. Crim would 

need to access the switches in the event of a malfunction, but 

that the crusher operator generally does not need to be in the 

area. In the event of a malfunction, or the need to test the 

equipment, or to repair any heater circuits, an electrician 

would be called to do this work. This would occur once every 

year or two, and in the event of a cone malfunction, or the 

need to make electrical repairs, the entire plant operation 

would be shut down (Tr. 67-69}. 

Mr. Williams believed that access to the cited switch box 

could be made from the operator's work platform by sitting on 

the deck and "take your foot and shove the controls down. cut 

off the breaker." One could also "belly down there and reach 

with your hand and shut it off and turn it on. It is awkward" 

(Tr. 70). Malfunctions in the disconnect box would include a 

blown fuse or circuit problems which would necessitate shutting down the entire plant in order to service the box (Tr. 

70-71). Several years may pass before any such problems 

appear (Tr. 72). 

Mr. Williams stated that an angle iron movable ladder is 

located at the crusher to climb up onto the work deck on the 

opposite side of the crusher, but it does not appear in any 

of the photographs, and when asked whether a ladder was present when Mr. Lilly issued the citation, Mr. Williams responded 

"probably we did" (Tr. 73). He confirmed that the crusher in 

question is operated by three people (Tr. 73). If an electrician were required to service the disconnect box in question, 

he would use a ladder to gain access to it (Tr. 75). 

Mr. Williams confirmed that Mr. Brown had been employed 

at the plant for approximately 1 year at the time of the 

inspection and he was in training as a crusher operator. He 

also confirmed that the access route that Mr. Lilly stated was 

1219 
described to him by Mr. Crim was a possible path of access to 

the cited boxes, and that the use of a ladder on the other 

side of the crusher was also a means of access. Regarding the 

route taken by Mr. Crim, as described by Mr. Lilly, 

Mr. Williams stated "it is not really all that damn difficult. 

You can step across the main conveyor, * * * you don't crawl 

under any conveyor because the return conveyor doesn't come 

out that far" (Tr. 77). 

Mr. Williams identified the ladder he was referring to as 

the one shown in exhibit P-2 (Tr. 78). Counsel David Williams 

stated that the ladder is no longer there, and that access to 

the switch boxes would not normally be made by the ladder 

shown in the photograph, but rather by a ladder placed at 

another location (Tr. 90). Joe Williams was certain that a 

ladder was available for use as access to the cited boxes at 

the time the inspector issued the citation (Tr. 95). When 

asked why Mr. Crim would have told Mr. Lilly that no ladders 

were available on the premises, Mr. Williams responded "unless 

Mr. Crim couldn't think fast enough to find a ladder. And I 

think that is probably the whole circumstances" (Tr. 107). 

When asked whether he doubted that crusher operator Brown told 

the inspector about the route he took to the switch boxes, 

Mr. Williams stated that he probably and very possibly made 

the statement to the inspector (Tr. 95). 

Inspector Lilly was recalled, and he confirmed that while 

he issued guarding citations during his inspection of July 27, 

1987, none of these involved any of the conveyor equipment 

along the route described as an access to the cited switch 

boxes, and no danger of falling citations were issued (Tr. 

101-102). Mr. Lilly reiterated that he spoke with Mr. Crim, 

and that they both looked for an available ladder, but could 

not find one. The metal angle iron ladder referred to by 

Mr. Williams could have been taken down, but this would have 

resulted in no ladder being available for access to the 

crusher building (Tr. 103). 

Mr. Lilly confirmed that he told Mr. Crim that Mr. Brown 

told him that he accessed the switch boxes by the route previously described, and that Mr. Crim said "I have gone that 

way myself on occasions to pull the switch." Mr. Lilly confirmed that he and the other inspector inspected the switch 

boxes, and "if there is a ladder in that picture, it was 

because we placed one thereto get access to that platform--the 

electrician and I." Mr. Lilly confirmed that the ladder he 

used was the angle ladder described by Mr. Williams (Tr. 104). 

Mr. Lilly confirmed that ha6 Mr. Brown shown him a ladder or 

advised him that he used a ladder as a means of access to the 

1220 
cited switch boxes, he would not have issued the citation (Tr. 

105). 

Arguments Presented by the Parties 

The parties agreed that Mr. Lilly issued the citation 

based on his conclusion that in the normal course of business, 

if someone had to go to disengage the cited disconnect boxes, 

the route of travel he would take to accomplish this would be 

to go down one level from the control booth and go over a 

conveyor and cross a steel beam to reach the boxes. They also 

agreed that Mr. Lilly's conclusion regarding the access route 

came from his conversations with the crusher operator and 

foreman, Mr. Brown and Mr. Crim (Tr. 81). 

Petitioner's counsel asserted that the testimony of 

Inspector Lilly establishes that a safe means of access was 

not provided to the switch boxes in question, and that respondent's president Joe Williams agreed that the statements by 

Mr. Crim and Mr. Brown to the inspector were possibly correct. 

Under the circumstances, counsel asserted that Inspector Lilly 

acted reasonably in issuing the citation (Tr. 108). 

With regard to the inspector's "significant and substantial" finding, petitioner's counsel asserted that notwithstanding Mr. Lilly's agreement that the plant would be shut down 

before any maintenance work was performed, and that no one 

would likely cross over any moving conveyor belts to reach the 

switch boxes, there was a potential for someone falling 7 or 

8 feet to the ground, even if the belts were not running CTr. 

109). Counsel acknowledged that Mr. Lilly issued no citations 

for the failure to use a safety belt (Tr. 110). 

Respondent's counsel took the position that since access 

to the cited switch boxes was not frequent, and occurred once 

a year or every other year, the location could hardly be considered a normal working place (Tr. 96). Respondent's counsel 

also indicated that when he first reviewed this case, he 

believed that Inspector Lilly had observed something that led 

him to believe that safe access was not provided to the cited 

switch boxes, and he had no information indicating that the 

crusher operator had spoken to Mr. Lilly and informed him 

about the route which he had taken to the switch boxes. 

Counsel stated further that since Mr. Lilly made reference to 

moving machine parts and pinch points, he found it difficult 

to believe that such a serious "significant and substantial" 

situation could be abated by simply putting up a ladder (Tr. 

111). 

1221 
Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 56.11001, .for failure to provide a 

safe means of access to the disconnect and starter boxes used 

in conjunction with the big and small cone crushers. Section 

56.11001, provides that "Safe means of access shall be provided and maintained to all working places." The phrase "working place" is defined by section 56.2, as "any place in or 

about the mine where work is being performed." 

In Massey Sand and Rock Company, 4 FMSHRC 188 (February 

1982), 2 MSHC 1722, a miner walked up a conveyor belt to reach 

a head pulley located 35 to 40 feet off the ground so that it 

could be greased. As he began to grease the head pulley, the 

conveyor started and threw him to the ground. Judge Morris 

affirmed a violation of the safe access requirements of 

section 56.11001, and found that the operator could have 

provided a variety of means and access, including a ladder. 

In Mohave Concrete & Materials Company, 6 FMSHRC 1195, 

1198 (June 1983), 3 MSHC 1040, the judge affirmed a violation 

of section 56.11001 in a situation where an inspector observed 

a crusher operator climb up a crusher feeder frame and stand 

on a beam to perform his work. The violation was abated after 

the operator provided a platform and ladder for access to the 

work station in question. 

The respondent's suggestion that the location of the disconnect boxes may not be conaidered a "working place" because 

visits to that area were infrequent IS REJEC'rED. Regardless 

of the frequency of their visits to the switch box area, when 

Mr. Crim and Mr. Brown had occasion to go to the area they 

were there to pull the power for the purpose of facilitating 

maintenance or repair work on the equipment, the clearing of 

clogged materials, to check the circuit or blown fuses, or to 

change out the jaw crushers. Under the circumstances, the 

connector box location was clearly a place where work was 

being performed within the meaning of "working place" as 

defined by section 56.2. 

With respect to the respondent's suggestion that a ladder 

was available for access to the cited boxes, I find no credible evidence to support this contention. The evidence clearly 

establishes that no ladder was used by Mr. Brown or Mr. Crim 

when they had a need to access the boxes. Further, although 

Inspector Lilly stated that he used a metal angle iron ladder 

1222 
to access the platform where the boxes were located, the evidence of .record suggests that this particular ladder was not 

used for normal access to the boxes and was located at another 

place. Further, I find no credible evidence to rebut Inspector Lilly's credible testimony that the respondent failed to 

establish that ladders were used as a normal and regular 

access route to and from the cited boxes in question. 

Inspector Lilly's testimony, which I find credible, 

establishes that at least two individuals, Mr. Brown and 

Mr. Crim, gained access to the cited boxes in question by a 

means of travel that took them over a conveyor belt and across 

an I-beam to the location of the boxes. These individuals had 

occasion to go to the boxes by means of the route described by 

the inspector, and the fact that they may have gone their 

rather infrequently is no defense to the violation. Although 

the respondent raised some doubt as to whether or not Mr. Crim 

made the statements attributed to him by Mr. Lilly, respondent 

conceded that Mr. Brown probably made the statements. In any 

event, since the respondent did not call Mr. Brown or Mr. Crim 

to testify in this case, Mr. Lilly's unrebutted testimony 

supports his belief that the route of travel taken by these 

individuals exposed them to certain trip and fall hazards, as 

well as to potential hazards from the unguarded equipment and 

machine parts and pinch points described by the inspector. 

Under the circumstances, I conclude and find that the evidence 

establishes that the access route described by the individuals 

to the inspector was unsafe, and that a violation of section 

56.11001 has been established. Accordingly, the citation IS 

AFFIRMED. 

Significant and Substantial Violation 

A "significant and substantial" violation is described 

in section 104(d)(l) of the Mine Act as 1 violation qof 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)(l). 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 FMStlrtC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant and substantial" as follows: 

1223 
In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

of Labor must prove: Cl) the· underlying violation of a mandatory safety standard; C2) a discrete safety hazard--that is, a measure of 

dange~ to safety-contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1129, the Commission stated further as follows: 

We have explained further that the third 

element of the Mathies formula "requires that 

the Secretary establish a reasonable likelihood 

that the hazard contributed to will result in 

an event in which there is an injury." U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance 

with the language of section 104Cd)(l), 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. 

S"t:eel Mining Company, Inq., 6 FMSHRC 1573, 

1574-75 (July 1984). 

Mr. Lilly believed that there was a reasonable likelihood 

of an injury to an employee who had to cross the conveyors to 

reach the location of the switch boxes, and there was a 

possibility of tripping or falling if the conveyor were muddy 

or if a lot of dust was present (Tr. 23). He confirmed that a 

citation was also issued for not locking out the equipment, 

but he could not recall whether it involved the same safe 

access condition CTr. 26). Mr. Lilly was also concerned about 

possible sprains or broken bones if anyone fell off an opening 

between the conveyor and I-beam, or while standing or stepping 

onto the platform from the I-beam (Tr. 27). 

Mr. Lilly agreed that Mr. Crim and Mr. Brown would not be 

climbing over moving conveyors belts, and that the entire area 

was shut down when these individuals had a need to access the 

boxes. However, Mr. Lilly testified that crusher operator 

Brown informed him that even c.hough he.shut the equipment down 

by means of the stop-start switch in the control booth, he 

1224 
still had to go to the location of the boxes to pull the main 

power in.order to make the crusher area safe for anyone 

freeing plugged material from it. Mr. Lilly believed that 

anyone could have entered the control booth and activated the 

equipment by means of the start-stop buttons, and I believe 

that in the event this occurred before the main switch was 

disconnected, and while someone was on the conveyors or in the 

proximity of unguarded and moving machine parts, a potential 

hazard and injury would be present. 

Even assuming that the equipment over which Mr. Crim and 

Mr. Brown had to climb was totally deenergized and locked out 

while they were climbing over it, Mr. Lilly was still concerned that slipping or tripping hazards would be presented by 

the route of travel taken by these individuals, particularly 

if the conveyor was wet, muddy, or dusty. They would also be 

exposed to a falling hazard from the I-beam over which they 

had to step to reach the platform where the boxes were located. 

Under all of these circumstances, I conclude and find that 

Mr. Lilly's "significant and substantial" finding was reasonable and proper, and IT IS AFFIRMED. 

History of Prior Violations 

The parties stipulated that during the preceding 24-month 

period, respondent was subjected to 22 inspection days, and 

was issued 46 citations during the preceding 12-month period. 

Petitioner submitted an unevaluated computer print-out listing 

the respondent's violation history for the period March, 1978 

through June, 1988, which contains no information as to the 

civil penalties assessed for each of the violations listed, or 

any information as to which of the citations have been paid, 

and which have not {exhibit P-1). In any event, after review 

of this information, I conclude and find that for the immediate 24-month period prior to the issuance of the violdtion 

which has been affirmed in this case, the respondent had an 

average history of compliance at its San Saba plant and quarry. 

I further conclude and find that respondent's compliance 

record is not such as to warrant any additional increases in 

the civil penalty assessment for the violation in question. 

Size of Business and Effect of Civil Penalty on the 

Respondent's Ability to Continue in Business 

Based on the stipulations of the parties, and the testimony of Mr. Williams concerning the San Saba quarry production 

and the number of employees operating the plant, {Tr. 72), I 

conclude and find that the respondent is a small mine operator. 

Absent any information to the contrary, I also conclude and 

1225 
find that the payment of the civil penalty assessment for the 

violation in question will not adversely affect the respondent's ability to continue in business. 

Gravity 

I conclude and find that the violation was serious. The 

failure to provide safe access to the cited boxes in question 

presented a potential injury to the employees climbing over 

the conveyors and I-beam in question, and in the event of a 

slipping, tripping, or falling accident, injuries of a 

reasonably serious nature could be expected. 

Negligence 

I conclude and find that the violation was the result of 

ordinary negligence on the part of the respondent because of 

its failure to exercise reasonable care to insure that its 

employees used a safe access route for reaching the cited 

boxes. It seems to me that this could have been accomplished 

by simply providing a ladder in the immediate ground level 

area beneath the platform or crusher operator's booth, or at 

least having one readily available, with appropriate instructions as to its use· by any employee or serviceman who may have 

had a need to access the boxes for maintenance, repair, or 

inspection. 

Good Faith Compliance 

The record establishes that the respondent took appropriate steps to timely abate the citation by providing a ladder 

as a safe means of access to the boxes in question. I conclude and find that the respondent demonstrated good faith 

compliance. 

Civil Penalty Assessment 

In view of the foregoing findings and conclusions, and 

taking into account the requirements of section llOCi> of the 

Act, I conclude and find that the petitioner's proposed civil 

penalty assessment of $91 for the violation is reasonable and 

appropriate. Accordingly, IT IS AFFIRMED. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment in the amount of $91 for the section 104Ca> "S&S" 

Citation No. 2868984, July 27, 1987, 30 C.F.R. § 56.11001. 

1226 
Payment is to be made to MSHA within thirty C30) days of the 

date of this decision, and upon receipt of payment, this 

proceeding is dismissed. 

h.f 

Administrative ~ Law Judge 

Distribution: 

E. Jeffrey Story, Esq., Office of the Solicitor, U.S. 

Department of Labor, 525 South Griffin Street, Suite 501, 

Dallas, TX 75202 (Certified Mail) 

David M. Williams, Esq., P.O. Box 242, San Saba, TX 76877 

(Certified Mail) 

/fb 

1227 
FEDERAL MINE SAFETY AND HEAL Tff,REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGE:.::; 

COLONNADE CENTER 

DENVFR CO 80204 

SEP 141988 ROOM 280 1244 SPEEH BOULEV~RL1 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

Docket No. CENT 87-59-M 

A.C. No. 41-02577-05507 

v. Crusher No. 1 Mine 

PRICE CONSTRUCTION, 

INCORPORATED, 

Respondent 

DECISION 

Appearances: Brian L. Pudenz, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, 

for Petitioner; 

Mr. Bob c. Price, Price Construction, Incorporated, 

Big Spring, Texas, pro~· 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and Health 

Administration CMSHA), charges respondent with violating two safety 

regulations promulgated under the Federal Mine Safety and Health Act, 

30 u.s.c. § 801 et seg., (the Act). 

After notice to the parties a hearing on the merits was held in 

Big Spring, Texas on May 24, 1988. 

The parties waived their right to file post-trial briefs and 

they submitted their cases on oral argument. 

Summary of the Case 

Citation No. 2869357 charges respondent with violating 30 C.F.R. 

56.14001, which provides as follows: 

§ 56.14001 Moving machine parts. 

Gears; sprockets; chains; drive, 

head, tail, and takeup pulleys; 

flywheels; couplings; shafts; sawblades; fan inlets; and similar 

exposed moving machine parts which 

may be contacted by persons, and 

which may cause injury to persons, 

shall be guarded. 

1')")Q 
Citation No. 2869358 charges respondent with violating 30 C.F.R. 

56.16005. The regulation requires that compressed and liquid gas 

cylinders be secured in a safe manner. 

Stipulation 

The parties stipulated as follows: 

1. The name of the respondent company is Price Construction, 

Inc. with a place of business near Big Spring, Texas. 

2. Jurisdiction is conferred upon the Federal Mine Safety and 

Health Review Commission under the Federal Mine Safety and Health 

Act, 30 u.s.c. § 801 et 2-~· The alleged violation of the Act took 

place in or involves the mine that has products which affect 

commerce. 

3. The name of the mine is Crusher No. 1, identification number 

41-02577. The mine is located near Salt Flats, Texas in Culberson 

County. The size of the company is 32,723 production tons or hours 

worked per year and the size of the mine is 15,007 production tons or 

hours worked per year. 

4. The imposition of any penalty in this case will not affect 

the operator's ability to continue in business. 

5. The total number of inspection days in the preceding twentyfour months is three. 

6. The total number of assessed violations (including single 

penalties timely paid) in the preceding twenty-four months is one. 

7. On March 25, 1987, an inspection was conducted by Moises A. 

Lucero, an authorized representative of the Mine Safety and Health 

Administration. 

8. Two Section 104(a) citations (numbers 2869357 and 2869358) 

were issued for violations of 30 C.F.R. 56.14001 and 30 C.F.R. 

56.16005 respectively, on March 25, 1987. 

9. An abatement date of March 25, 1987 was set for both citations. Both citations were abated immediately by respondent. 

10. On May 21, 1987, respondent received its first proposed 

penalty. 

1229 
11. On May 21, 1987, respondent requested a hearing on the above 

citations. 

12. On July 13, 1987, petitioner filed a complaint proposing 

penalty. 

13. Respondent agrees to ·withdraw its request for hearing on 

citation number 2869358 and the Secretary agrees to reduce the 

citation to a non-significant and substantial, and reduces the proposed penalty to $38.00. This reduction is supported by the facts 

that the violation was immediately abated, the respondent was unaware 

of the violating condition, the condition was a single incident and 

the likelihood of injury or illness was low. 

II 

Agreed Statement of the Issues 

1. Whether a violation as alleged in Citation Number 2869357 

is a significant and substantial violation within the meaning of the 

Act. 

2. Whether the equipment concerned in Citation Number 2869357 

was guarded by its location. 

3. Whether a violation of 30 C.F.R. 56.14001 as alleged in 

Citation Number 2869357 did in fact occur. 

III 

Respondent's Statement of an Additional Issue 

1. Whether the equipment concerned in Citation No. 2869357 

could be reasonably expected to be contacted by persons. 

IV 

A. Witness for Petitioner 

1. Moises A. Lucero will testify as to the conditions at the 

mine. 

B. Witnesses for Respondent 

1. Wesley Coleman, Plant Superintendent for Price Construction, 

Inc. 

2. Charles E. Price, retired MSHA Inspector. 

1230 
v 

Exhibits 

The following is a list of petitioner's exhibits: 

Pl: .The complaint proposing penalty with attachments. 

P2: Citation Number 2869357 on MSHA Form 7000-3 and 

Form 7000-3(a). 

P3: Investigator field notes (if available). 

P4: Photograph of air-compressor equipment at its 

location. 

The following is a list of respondent's proposed exhibits: 

Rl: MSHA Form 7000-3, Citation Number 286 

R2: MSHA Citation Number 2869359 dated 4-1-87. 

R3: MSHA Form 7000-3A Citation Number 2869359-1 

dated 4-8-87. 

R4: MSHA Form 70002 Citation Number 2869360 dated 

4-1-87. 

RS: MSHA Form 7000-3Ca) Citation Number 2869360 

dated 4-3-87. 

R6: MSHA Form 7000-3 Citation Number 2869360 dated 

4-1-87. 

R7: MSHA Form 7000-3Ca) Citation Number 2869381-1. 

R8: Hand written note documenting telephone request 

of Mr. Sidney Kirk for C.A.V. inspection. 

R9: Telephone billing record dated 2-1-87. 

RlO: MSHA Form 4000-51 CAV-Nonpenalty notices dated 

1-8-87 - 15 pages. 

Rll: MSHA Form 7000-3Ca) CAV-Notice dated 5-7-87. 

Rl2: Form 7000-3Ca) CAV-Notices dated 3-25-87 - 15 pages. 

Rl3: Plant site and equipment photos. 

1231 
Summary of the Testimony 

Moises Lucero, an MSHA inspector for ten years, testified for 

the Secretary. 

Mr. Lucero presented an issue as to whether a V-belt was unguarded on an air compressor. He inspected the company and issued 

Citation Number 2869357 on March 25th for a violation of § 56.14001. 

The violation occurred because a V-belt on an air compressor next 

to a travelway was unguarded. Persons were exposed to the moving 

machine parts. (Tr. 16, 17~ Ex. Pl). The inspector took one photograph before he ran out of film (Tr. 18). The V-belt for a three 

H.P. drive was inside a trailer tool house used by four employees 

(Tr. 18, 19). 

The inspector's photograph was taken from the doorway of the 

trailer. The compressor was at the entrance <Tr. 19). Along the 

side of the compressor is the walkway. Shelves are behind the 

compressor. The trailer wall is on the right side (Tr. 20). The 

inspector did not remember one way or the other if any object was 

in front of the compressor (Tr. 20, 21, 114). However, Exhibit R9 

shows a box to the front of the compressor (Tr. 114). 

The inspector evaluated the gravity of the violation and the 

likelihood of an injury (Tr. 21, 22, 24, 26). 

A person walking by the V-belt would be within two feet of the 

exposed part CTr. 27). 

Wesley Ray Coleman, 29 years of age, testified for respondent. 

The witness has been a supervisor with respondent since 1985. 

During that time there have been three to four MSHA inspections 

and a courtesy inspection (Tr. 118, 119).. Three different MSHA 

inspectors were involved. 

Mr. Coleman was familiar with the air compressor located inside 

the doorway of the parts van (Tr. 120). · 

The compressor has always been bolted down. It is about eight 

feet back from the van door on the right hand side. The trailer 

is entered through two double doors on the back end of the van. 

Shelves are at the far end away from the door. The van wall is on 

the right side of the air compressor. A walkway is on the outside 

of the air compressor~ the center of the walkway is approximately 

three and one-half feet from the compressor <Tr. 121, 122). 

1232 
The moving parts of the compressor are between the air compressor and positioned next to the wall. There are no moving parts 

on the front side. The air hose itself goes down through a hole in 

the floor (Tr. 123). The hose does not cause a tripping hazard 

(Tr. 124). 

There is no reasonable access to any of the moving parts from 

the aisle or from either end (Tr. 125). A person would not fall from 

the aisle way and encounter any moving parts (Tr. 126). This is 

because the electric motor guards the sheave on the motor. The head 

of the air compressor and the wall guards the pulley. The flywheel 

on the compressor is smaller than the air compressor body and the air 

compressor head. 

The compressor is waist high and its moving parts could only be 

contacted by the deliberate act of reaching behind the compressor 

(Tr. 127>. No clothing or body parts could be sucked into the intake 

valve (Tr. 128, 129). 

None of the other three MSHA inspectors ever claimed this was a 

hazard (Tr. 129). The compressor was guarded after the citation was 

issued <Tr. 130). 

The compressor's moving parts were guarded (by location) in this 

fashion: the rear side was guarded by the wood paneling, the aisle 

side by the oversized electric motor and compressor head, the front 

end by stored materials consisting of cases of grease (Tr. 131, 132, 

145, 146, Ex. R 9, R 11). 

The compressor has never been involved in any injury while the 

witness has worked there (Tr. 138). 

In cross-examination the witness agreed it was possible to get 

a hand into the space on the compressor CTr. 142). 

Evaluation of the Evidence 

The pivotal question here is whether the V-belt on the cited air 

compressor was guarded by location. 

The evidence is essentially uncontroverted that the V-belt 

was guarded at the rear by the wood panel, at the aisle side by the 

motor, and on the inner side by the wall of the van. The controversy 

1233 
thus focuses on whether or not the V-belt was guarded at the front. 

Respondent's witness Coleman indicated cases of grease were stored to 

the front of the compressor. As a supervisor he should know where 

his supplies were stored. 

On the other hand, the inspector did not remember if there was 

any material stored to the front of the compressor. "Further, his 

single photograph does not include that area (Exhibit P 2). But 

respondent's photograph clearly shows several boxes in front of the 

compressor blocking access to it (Exhibit R 9). 

For these reasons I conclude that the V-belt was guarded by 

location. Further, the exposed moving parts could not be reasonably contacted by any person. 

Respondent also raised the defense of collateral estoppel. 

Specifically, respondent argues and offers evidence to prove t.hat 

other MSHA inspectors had inspected this area but had failed to issue 

any citations for this condition. 

The doctrine of collateral estoppel does not apply in these 

circumstances. See Servtex Materials Company, 5 FMSHRC 1359 (1983) 

and King Knob Coal Co., Inc., 3 FMSHRC 1417 (1981). 

For the reasons initially stated Citation 2869357 and all 

penalties therefor should be vacated. 

Citation 2869358 

In connection with this citation the parties stipulated that the 

citation could be reduced to a non-significant and substantial violation and the penalty reduced to $38.00. 

I have reviewed the proposed settlement and I find it is reasonable and in the public interest. It should be approved. 

Based on the foregoing findings of fact and conclusions of law I 

enter the following: 

1234 
ORDER 

1. Citation 2869357 and all penalties therefor are vacated. 

2. Citation 2869358 is affirmed as a non S&S violation and a 

penalty of $38.00 is assessed. 

3. Respondent is ordered to pay to the Secretary the sum of 

$38.00 within 40 days of the date of this decision. 

is 

ive Law Judge 

Distribution: 

Brian L. Pudenz, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 South Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail> 

Mr. Bob C. Price, Vice-President, Price Construction, Inc., P.O. 

Box 1029, Big Spring, TX 79720 (Certified Mail) 

/ot 

1235 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE.. Of ADMINISTRA 1 IVE LAW JU OGE S 

COL0NNl\:'E. CE:NTER 

ROOM:.>!<' 1:·4.: S'-'fEH BUULFVARl) 

Dt NVfh Cu so~·()~ SEP 141988 

COLORADO WESTMORELAND, INC., 

Contestant 

CONTEST PROCEEDINGS 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. WEST 88-223-R 

Order No. 3226870; 5/6/88 

Orchard Valley.West Mine 

Mine ID 05-04184 

ORDER OF DISMISSAL 

Before: Judge Morris 

The issues presented here arise under the Federal Mine 

Safety anj Health Act, 30 U.S.C. § 801 et seq., ("Act"). 

Contestant filed its notice of contest herein seeking 

a review of Safeguard number 3226870 issued May 6, 1988. 

Said safeguard recites that contestant failed to comply with 

30 C.F.R.§ 75.1403 but no enforcement action was issued based 

on the safeguard. 

The safeguard provides as follows: 

Dick Love (Utility Man) was operating a scoop 

in a forward motion while J.R. Davis (Section 

Foreman) was being transported inside the scoop 

bucket in the #3 entry of the 001-0 section. 

Notice to provide safeguards. 

All scoops, EIMCO or other types not equiped 

(sic) with locking devices to precluded (sic) 

any possibility of accidently activation of the 

hydrolic (sic) control levers, shall not be used 

to transport crew members, while equipment is 

in a traveling motion. 

For its relief c6ntestant requests that the subject 

safeguard be vacated, or, in the alternative, that it be 

granted declaratory relief declaring that the subject nature 

to provide saf eguar?s is an improper interpretation of 30 

C.F.R. § 75.1403. ~ 

.!/ An imminent danger order that apparently preceded the 

issuance of the instant safeguard notice is pending before the 

undersigned judge in Colorado Westmoreland, WEST 88-222-R. 

1236 
The Secretary has moved to dismiss the notice of contest. 

As a grounds therefor the Secretary states the contest herein 

fails to state a claim upon which relief can be granted. 

Oral arguments were heard on the record on August 31, 1988 

in Denver, CoLorado. 

Discussion 

This is a case of first impression in that contestant seeks 

review of a safeguard notice issued under 30 C.F.R. § 75.1403 

without any accompanying enforcement action under the Act. ~ 

The Act provides that an operator may contest an order of 

withdrawal issued under § 104, a citation or a penalty assessment issued pursuant to§ 105(a) or 105Cb), or the reasonableness of time fixed for abatement of a citation. However, there 

is no statutory authority for an independent review of a safeguard notice prior to the issuance of a citation. To like effect 

see Mettiki Coal Corporation, YORK 81-42-R (February 19, 1981), 

an unreported decision by Judge James A. Broderick. 

Contestant asserts that Mettiki Coal Corporation is not 

controlling since declaratory relief was not requested in that 

case. 

I recognize that the Commission can grant declaratory relief 

under appropriate circumstances Climax Molybdenum co. v. Secretary of Labor, 703 F.2d 447. However, declaratory relief cannot 

be a vehicle to enlarge jurisdiction. 

Contestant also asserts that its options are either to 

com?lY with the safeguard notice or receive a citation ~0r its 

knowing noncompliance. 

2/ The Commission decisions in Southern Ohio Coal Company, WEVA 

86-190-R (August 19, 1988)~ Jim Walter Resources, Inc., 7 FMSHRC 

493 (April 1985) and southern Ohio coal Co., 7 FMSHRC 509 (1985) 

all involve safeguards followed by an enforcement action. 

1237 
I disagree. Contestant may seek a modification from MSHA 

or proceed under Section 101Cc) of the Act. [See Mid-Continent 

Resources, Inc., Docket No. 88-MSA-13, July 19, 1988, Brissenden. 

J (attached hereto)]. 

Finally, contestant asserts the doctrine of pendent jurisdiction is applicable citing United Mine Workers v. Gibbs, 383 

U.S. 715, 86 s.ct. 1130, 16 L.Ed. 2d 219 (1966> and Jones v. 

Intermountain Power Project, 794 F.2d 546 (10th Cir. 1986) 

I agree the federal courts have jurisdiction to exercise 

pendent jurisdiction. This power exists when there is a substantial federal claim and when both the state and federal claims 

derive from a common nucleus of facts so that plaintiff would 

"ordinarily be expected to try them all in one judicial proceeding," 794 F.2d at 549. 

While the doctrine might be held applicable here the undersigned Judge does not consider it fairly within the Commission's 

statutory grant of authority. 

For the foregoing reasons the Secretary's Motion to dismiss 

is GRANTED and the contest filed herein is DISMISSED. 

Law Judge 

Distribution: 

Charles W. Newcom, Esq., Sherman & Howard, 633 17th Street, 

Suite 3000, 633 17th Street, Denver, CO 80202 (Certified Mail) 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

/ot 

1238 
Jn thP Matter of 

0"•tt- ot Ao••""'~''•'••t- ~•· JuCIQ•· 

? , , M•·~ St••"' Su•tf' 6C'~ 

Sr ir•"t•s.cc C11oto1,..,a 9•10!> ~ECEIVEI 

Jut 22 IO 23 A~ 'BB 

Ml~E.. SArETY, 

AND HEALTH 

CASF: NO: 88-'MSA-13 

MlD-CO~Tl~EST RESOrRrES, l~C. 

RUtJNC. AND ORDER ON 'MOTlON TO DlS~lSS 

T~is procee:ing arise~ under the fedeTal Mine Safety and Health 

A:t of 1ci--;, 30 e.s.c. ~801 !..!. !.!S.,:, (the "Ac:t"). By notice dated 

Dece~ber 6, 19~6, the Mine Safety and Health AdministTation ("MSHA") 

ap~lie= a Section 314(b) safeguard (30 C.F.R. §75.1403-S(g)) to 

Pet1tioner'Appe1lant Mid-Continent Resources, Inc. ("HCR"). On 

fe~ruarv 3. 1C~7, MCR filed a Section lOl(c) petition for 

modification o~ the safeguard. 'MSHA then amended the safeguard on 

June 11, 19P7. On December 14, 1987, the Deputy Administrator for 

Coal ~!ne Safety and Health dismissed 'MCR's petition for 

~ocificati~~. ~CR then requested a hearing pursuant to 30 C.f.R. 

~4~.lk, and the Deputy Administrator referred this matter for 

hearing by this office on January 21, 1988. 

On ~arch 2, 1988, MSHA filed a motion to dismiss this matter 

for failure to state a claim upon which relief can be granted, 

contending that safeguards imposed under Section 314(b) are Lot 

subject to petitions for modification under Section lOl(c). MSHA 

also contends that MCR's petition for modification did not allege 

either of the statutory grounds for modification. MCR filed a reply 

to the ~otion on March 23, and MSHA filed·a response to MCR's reply 

on March 31, 1988. 

~hether Section 314(b) Safeguards .Are Subject to Section lOl(c) 

Petitions: 

Section lOl(a) of the Ac:t (30 u.s.c. §8ll(a)) provides that 

•(t]he Secretary shall by rule • • 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,· and it •ets forth various rulemaking procedures. The 

Section lOl(a) standards apply to all mines. Section lOl(c) (30 

u.s.c. §8ll(c)) provides that "(u]pon petition by the operator or 

the representative of miners, the Secretary •ay modify the 

application of any mandatory safety standard to a coal Qr other mine 

.,- and it •et& forth grounds and procedures for •uch 

mine-specific modifications. (.!.!_! ~ 30 C.F.R. Part 44.) Thus, 

1239 
it 1~ clear that ~andatory standards promulgated through rule~ak1ng 

u~der Sectior lOl(a) may be modified either by further rulemaking 

aprlicable to all mines or through Section 10l(c) petitions for 

~od1ficat1on by individual mine operators. 

Section 314, 30 u.s.c. §874, is part of Title Ill of the Act, 

vhich cov~Ts ~Interim Mandatory Safety Standards for Underground 

Coal Hines··. (Section 314 was formerly Section 314 of the Federal 

Coal Mine ~ealth and Safety Act of 1969, 83 Stat. 742, 787, P.L. 

91-173 (19~Q)). Section 314 sets forth 1afety requirements for 

-hoisting and msntrips'. Tn addition, Subsection (b) provides that 

· !olther safeguards adequate, 1n the judgment of an authorized 

represente:fve of t-he Secretary, to m1n1~1ze hazards with respect to 

transportation of men and materials shall be provided." Provisions 

for the pro~ulgation of such safeguards by MSHA inspectors 

(aut~orized represi~tstives of the Secretary) on a ·mine-by-mine" 

basis are set fort!-. at 30 C.F.JL ~?S.1403 .!.!. ~ lt is clear that 

Section 3l~(b) safeguards may be modified by MSHA inspectors on 

their o~~ 1n1~iat1ve. 1 must determine whether the safeguards are 

&lso subje~t to Section lOl(c) petitions for modificatio~ by mine 

operators like MCR. 

~SHA"s !i~s: argument in support of its motion to dismiss is 

tha~ another procedure by which mine operators may challenge 

~a!eguards already exists. Citing Secretary of ~abor (MSHA) v. 

Southern Ohic Coal Co .• 7 FMSHRC 509, 3 MSHC (BNA) 1743 (1985), and 

~e:retary of Labor (MSHA) v. Jim Walter Resources, Inc., 7 FMSHRC 

'93, 3 ~SHC (B~A) 1739 (1985), MSHA points out that operators may 

cha!lenge the application of safeguards in proceedings before the 

Federal Mine Safety and Health Commission (the "Commission·), which 

has ju~isciction over contested violations of standards and 

safeguards. MSHA argues that there is therefore no need also to 

per~it Section lOl(c) petitions. Further, permitting challenges to 

safeguards both through proceedings before the Commission and 

throug~ Section 101Cc) petition proceedings could cause duplicative 

efforts and conflicting rulings. 

MSHA's second argu~ent involves the purpose of Section 314(b) 

and regulations thereunder. MSHA notes that Section 314(b) 

5afeguards may be imposed on individual mines and modified or 

~ithdrawn by MSHA inspectors without resort to rulemaking procedures 

much as those set forth in Section lOl(a). Thus, according to MSHA, 

Congress intended to enable MSHA inspectors to respond flexibly and 

quickly to unsafe conditions at particular mines without the 

necessity of Section 101-type procedures. MSHA argues that 

permitting Section 10l(c) petitions for modification of Section 

316(b) aafeguards would interfere with that flexibility. 

In response to MSHA's first argument, MCR point• out that 

Commission review of Section 314(b) aafeguards is actually only 

available after a safeguard has been violated, and violation of a 

safeguard subjects an operator to potential civil and criainal 

penalties under Section 110 (30 u.s.c. §820). (See, .!...:.I..:.• u.s. 

Steel Corp., 3 FMSHRC .2540 0 2 MSHC ('BNA) 1583 (1981)). ln other 

words, Commission Teview is not equivalent to Section lOl(c) 

1240 
retitton procedures. Jn fact, in Southern Ohio Coal Co. and~ 

~altrr Rrsourc•s, lnc., aupra, th• Commission actually interpreted a 

saf•guard for the purpose of determining whether certain operators 

had violat•d the aafeguard; th• CommSaaion did not permit the 

op•rators to challenge or request aodification ~the •afeguard 

its•lf. 

Jn respon~e to MSHA's ••cond argument, MCR contend& that the 

un~sually broad grant of power to HSHA in&pectors to 1mpoae Section 

314(b) saf•~uards without the necessity of rulemaking procedures 

actually means that the aafeguard& ahould be easier to challenge 

than Section lOl(a) standard$. (See Southern Ohio Coal Co., supra, 

at p;-. 511-12.) According to MC~the broadeT the grant of power, 

the more checks on that power should be provided. · MCR. also argues 

that bv 1ts word1nF. Section lOl(c) applies to ·any aandatory safety 

stanca!"o··, a""ld Section 314(b) safeguards aTe just as •andatory as 

sta""ldarcs pro~ulgated under Section lOl(a) because both are enforced 

in the sa~e manner under Sectio~s 104 and 110 (30 u.s.c. §§814, 

s:~). (3r r.s.c. ~846; See Southern Ohio Coal Co., supra, at 

r. 5: :! . ) 

l fine ~CR's arguments persuasive. There is no doubt that the 

Co~=issiCI~ (a~d ad~inistrative law judges under the Commission) has 

jurisdiction over contested violations of safety standards, while 

the Secretary (and this office) has jurisdiction over petitions for 

:ocification of those standards. (See Johnson, "The SplitE n force~ e., t ~ode 1 ·· , 3 9 Ad re . L. Rev • 3 T"S"":' 31 6 , 31 9 n • l 3 , 3 4 1 (Summer 

1987)). ~SHA has not shown that there is any basis for making an 

exceptio~ to the above jurisdictional scheme for Section 314(b) 

safeguards, w~ich are a special type of safety standards. The 

Co~~issio~ may have jurisdiction to interpret Section 314(b) 

safeguards that roay have been violated, but unlike the Secretary. it 

does not have the power to modify inappropriate safeguards. 

Accordingly, 1 find that 1 have jurisdiction over MCR's petition for 

modification of the Section 314(b) safeguard at issue (30 C.F.R. 

§75.1403-S(g)), and MSHA's motion to dismiss on the basis of lack of 

jurisdictio~ is therefore denied. 

Sufficiency of Pleadings: 

As stated above, MSHA has also •oved to dismiss on the basis of 

MCR's failure to allege either of the statutory grounds for 

modification in its petition. Pursuant to Section lOl(c) and 30 

C.F.R. §'4.4 1 the grounds for •odification are: 1) there exists an 

alternative method of achieving the result of the aafety atandard or 

aafeguard at issue, or 2) the application of the standard at issue 

vill result in a diminution of aafety. My own examination of MCR's 

petition reveals that it alleged facts intended to aupport the 

aecond ground for modification at Paragraph 7 and the firat ground 

at Paragraph 9. Accordingly, MHCA's •otion to dismias on the basis 

of the insufficiency of MCR's pleadings 1• denied. 

1241 
t>ated: JU~ 1 9 19E9 

San francisco, California 

1242 

RlSStNDEt\ 

strative Law Judge 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 151988 

ARTHUR BROWNING, 

Complainant 

v. 

NALLY & hAMILTON ENTERPRISES, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. KENT 88-132-D 

BARB CD 88-14 

Gray's Ridge Job 

ORDER OF DISMISSAL 

Before: Judge Maurer 

The Complainant, by counsel, requests approval to 

withdraw his complaint in the captioned case on the grounds 

that the parties have reached a mutually agreeable settlement. 

Under the circumstances herein, permission to withdraw is 

granted. 29 C.F.R. § 2700.11. The case is therefore 

dismissed, with prejudice, as requested by the parties; and 

the hearing set for September 16, 1988, in Lexington, 

Kentucky is cancelled. 

ll/CIMNW' 

aurer 

rative Law Judge 

Distribution: 

Lloyd R. Edens, Esq., Cline & Edens, P.O. Drawer 2220, 

205 N. 20th Street, Middlesboro, KY 40965 (Certified Mail) 

Robert A. Thomas, Esq., 114 First Street, Box 923, Harlan, 

KY 40831 (Certified Mail) 

slk 

1243 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE ,, FALLS CHURCH, VIRGIHIA 22041 

SEP 151988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA} , 

ON BEHALF OF 

GEORGE S. JOHNSON, 

LOUIS JOHNSON, JR., 

ARNOLD J. RASBERRY, 

BOOKER T. WARE, JR., 

Complainants 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. SE .86-108-D 

BARB CD 86-31 

No. 3 Mine 

ORDER OF DISMISSAL 

Before: Judge Maurer 

The Stay Order dated December 5, 1986, as modified 

on August 7, 1987, is hereby lifted. 

The pleaded facts involved in this case are essentially 

the same as those in Secretary of Labor, ex. rel. Beavers, 

et al. and UMWA v. Kitt Energy Corporation, 10 FMSHRC 861 

(July 15, 1988). Therein, the Commission reversed my decision 

below and found that this set of facts did not violate 

section 105(c) of the Mine Act, 30 u.s.c. § 815(c). The 

Secretary has not taken an appeal from that decision. 

The parties to this proceeding agree and I concur 

that on the facts of this case, its outcome is controlled 

by Kitt Energy Corporation, supra. 

Accordingly, respondent's letter-motion of July 22, 1988, 

to dismiss this case is granted and this proceeding is dismissed 

in accord with controlling Commission precedent. 

Ro rer 

hli~ Aamin tive Law Judge 

1?44 
Distribution: 

Frederick w. Moncrief, Esq.,. Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd~., Arlington, VA 22203 

(Certified Mail) 

David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, P.C., 

12th Fl., Watts Bldg., Birmingham, AL 35203 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

St., N.W., Washington, D.C. 20005 (Certified Mail) 

slk 

1245 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 161988 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CONTEST PROCEEDING 

Docket No. WEVA 88-348-R 

Order No. 2946760; 8/12/87 

Shoemaker Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-74 

A.C. No. 46-01436-03708 

Shoemaker Mine 

DECISION 

Appearances: B. Anne Gwynn, Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, Pennsylvania, 

for the Secretary; Michael R. Peelish, Esq., Pittsburgh, Pennsylvania, for Consolidation Coal Company 

(Consol) 

Before: Judge Broderick 

STATEMENT OF THE CASE 

In the contest proceeding, Consol challenges the order of 

withdrawal issued under section 104Cd)(2) of the Act on 

August 12, 1987, alleging an unwarrantable failure violation of 

30 C.F.R. § 75.200. In the penalty proceeding, the Secretary 

seeks a civil penalty for the violation charged in the contested 

order. The cases were ordered consolidated for the purposes of 

hearing and decision in my prehearing order issued February 24, 

1988. Pursuant to notice the cases were called for hearing in 

Wheeling, West Virginia on June 23, 1988. Lyle Tipton, 

Howard Snyder, and Keith Daniels testified on behalf of the 

Secretary. Michael Blevins, Michael Yarish, Larry Dow, Dave 

Hudson, and Lloyd Behrens testified on behalf of Consol. Both 

parties have filed post hearing briefs. I have considered the 

1246 
entire record and the contentions of the parties in making this 

decision •. 

FINDINGS OF FACT 

At all times pertinent to this proceeding Consol was the 

owner and operator of an underground coal mine in Marshall 

County, West Virginia, known as the Shoemaker Mine. During the 

year 1986, the subject mine produced 2,334,000 tons of coal. 

During the twenty four months prior to the date the contested 

order was issued, 595 violations were assessed and paid, having 

been charged during 717 inspection days. Eighty six were 

violations of 30 C.F.R. § 75.200, four were of § 75.202. This 

means there were more than eight violations in every ten 

inspection days, including almost 1.3 roof control violations. I 

consider this a significant history of prior violations. A 

withdrawal order was issued under section 104(d) on August 28, 

1986, and there was no intervening clean inspection between that 

date and the date of the order contested herein. 

MAINLINE HAULAGEWAY 

The mainline haulage was originally developed many years ago 

beginning at the River portal. The River portal is now the area 

from which coal is moved to the outside of the mine. The coal is 

transported in coal cars (normally forty five 20 ton cars) with 

two locomotives, one in front and one in the rear. The 

locomotives weigh approximately 50 tons each. Each locomotive 

has one operator who sits on the trolley wire side (or "tight 

side") of the locomotive. The locomotives are electrically 

powered by an overhead 250 volt D.C. uninsulated wire. On a 

typical day, the motors travel through the mainline haulage every 

10 to 15 minutes. There is a water line and a high voltage 

transmission cable paralleling the trolley wire and water sumps 

throughout the area. The area is required to be examined before 

each shift or three times in a 24 hour period. There is a high 

velocity of air, approximately 180,000 cubic feet per minute in 

the mainline haulage. This causes deterioration of roof and ribs 

especially in the summer months. The roof was initially 

supported in large part by planks, through which three roof bolts 

were inserted. The planks were installed on five foot centers. 

Additional supports were installed at crosscuts only if the roof 

showed need for such supports. The crosscuts had previously been 

driven, and the coal removed. The roof had fallen on many but 

not all of the crosscuts. It was not Consol's practice, and 

there was no requirement in its roof control plan that bolts or 

other roof supports be installed ~here the crosscuts intersected 

the mainline haulageway. 

1247 
103(g) COMPLAINT 

On July 21, 1987, mainline motorman, Bill Whitlatch, 

reported to ·union safety committeeman Howard Snyder and Consol 

foreman, Mike Yarish, that a rock had fallen on a crib "inby the 

passway." Snyder and Yarish went to the area. The rock was 

hanging over the crib leaning toward the track. Yarish said he 

would have to shut down the haulage to take down the rock and he 

decided to have it done during the next weekend. However, when 

Snyder returned to work the following Monday he was told by the 

foreman who had worked on the weekend that the crib felt tight 

and he did not see any reason to take it down. Snyder reported 

this to Yarish. Yarish told yet another foreman to take care of 

it the following weekend. The following Monday, Snyder saw that 

the condition was not corrected. He contacted the other safety 

committeemen who submitted a 103(g) complaint to federal mine 

Inspector Tipton on August 12, 1987. The complaint requested an 

investigation of "bad roof conditions along main line haulage 

that were reported to management." In addition to the complaint 

related to the rock fall on the crib, on several occasions during 

the weeks preceeding August 12, 1987, Snyder told Yarish about 

areas of unsupported or inadequately supported roof in the 

mainline haulage. 

INSPECTION AND WITHDRAWAL ORDER 

On August 12, 1987, Inspector Tipton came to the subject 

mine to perform a regular inspection. He was given the 103(g) 

request by Keith Daniels. He proceeded to an area of the 

mainline haulage from the Whittaker Portal to the River Portal, 

accompanied by mine foreman Larry Dow and chairman of the mine 

safety committee Keith Daniels. The inspector cited four areas 

of what he considered inadequately supported roof and issued the 

contested withdrawal order. 

a) The first area cited by Inspector Tipton was three 

blocks outby the top end of the number ~ix passway. The 

inspector determined that because there was an area of eight 

feet, four inches between cribbing supports, and no supports were 

installed between the trolley wire and the rib line, the roof was 

not adequately supported. Consol's representative who 

accompanied the inspector did not disagree with ~he inspector's 

findings, but was of the opinion that the area wa3 adequately 

supported. 

b) The next area cited was one block further outby. The 

crosscut had fallen in. There was cribbing in the area, but the 

inspector measured 12 feet between cribbing or breaker supports. 

Consol's representative did not disagree with the measurements 

1248 
and concluded that the inspector was not satisfied with the 

distance between cribs. 

c) The third area cited was at a crosscut further outby. 

There was an area of eight feet, by seven feet on each side of a 

crib which was unsupported. There was also a large rock which 

had fallen on a crib dislodged from the roof at the edge of a 

crosscut which had fallen in. 

d) The fourth location cited was at a crosscut two blocks 

inby the inby end of the number one passway. Crib supports were 

12 feet apart with the unsupported roof extending into the 

trolley wire entry. There was a dislodged crib in the center of 

the opening with a large rock balanced on top of it almost 

directly over the high voltage transmission cable, the water 

line, and the trolley wire. The rock was on the edge of the crib 

and a failed roof bolt hung from the roof into the rock. 

The inspector considered that the roof was not adequately 

supported in the cited areas to protect persons from roof falls. 

He determined that the violation was significant and substantial 

and was caused by the unwarrantable failure of management to 

comply with the standard. The condition was abated the same day 

by the installation of additional cribs and, in the third area, 

of additional roof bolts. One new crib was installed in the 

first location, two in the second and three in the third. In the 

fourth location, after the rock was removed, additional cribbing 

was added to the middle crib. 

I find as facts that the roof conditions in the areas cited 

by the inspector were essentially as he described them, including 

the areas he measured between cribs and other roof supports. His 

testimony was corroborated by his contemporaneous notes and by 

the testimony of the union safety committee chairman Keith 

Daniels. The testimony of Consol's representative who 

accompanied the Inspector did not contradict his factual 

findings. 

ISSUES 

1. Whether the roof in the areas cited in the mainline 

haulageway was adequately supported to protect persons from roof 

falls? 

2. If a violation is found, was it significant and 

substantial? 

3. If a violation is found, was it caused by Consol's 

unwarrantable failure to comply? 

1249 
4. If a violation is found, what is the appropriate 

penalty? 

CONCLUSIONS OF LAW 

JURISDICTION 

Consol was at all times subject to the provisions of the 

Federal Mine Safety and Health act, and I have jurisdiction over 

the parties and subject matter of this proceeding. 

VIOLATION 

There was testimony both by government witnesses and Consol 

witnesses concerning the spacing of the crib supports. There was 

some indication that the Inspector required such supports on five 

foot centers, and that he followed an MSHA policy which required 

roof supports in all crosscuts along haulageways. The order, 

however, charges Consol with failing to provide adequate roof 

support. The Inspector explained that a roof fall in a cross cut 

(expected) will continue across the haulageway unless cribs or 

other supports are placed at the edge of the crosscut. Failure 

to install such supports renders the haulageway roof inadequate. 

I concur in the inspector's analysis, and conclude that the areas 

of unsupported roof in the four cited area were such as to render 

the roof inadequately supported to protest persons from roof 

falls .• The two areas where rocks had fallen on dislodged cribs 

were obviously inadequately supported on that basis alone. I 

conclude that the order properly charged a violation of 30 C.F.R. 

§ 75.200. 

SIGNIFICANT AND SUBSTANTIAL 

A violation is properly designated significant and 

substantial if it contributes to a safety hazard which will 

reasonably likely result in a serious injury. Cement Division, 

National Gypsum, 3 FMSHRC 822 (1981); Mathies Coal Co., 6 FMSHRC 

1 (1984). The area involved here was heavily travelled. The 

locomotives and coal cars cause considerable vibration. The area 

of unsupported roof was substantial and adjacent to crosscuts 

which had fallen in or were expected to fall in. A roof fall in 

one of the cited areas was reasonably likely, as was the fall of 

the large rocks poised on the cribs. All such falls would be 

reasonably likely to result in serious injuries. A roof fall 

could directly injure miners travelling the area (examiners, 

pumpers); it could fall on the track and cause a derailment; it 

could fall on a power line and result in a mine fire. The 

violation was properly denominated significant and substantial. 

1250 
UNWARRANTABLE FAILURE 

Unwarrantable failure means "aggravated conduct, 

constituting more than ordinary negligence, by an operator in 

relation to a violation of the Act." Emery Mining Corp., 9 

FMSHRC 1997, 2010 (1987); Youghiogheny & Ohio Coal Co., 9 FMSHRC 

2007 (1987). In this case, Consol had been notified of the rock 

fallen on the crib on July 21. Consol's foreman said he would 

have it removed on the weekend. He did not do so. He was 

reminded of it the following week, but still did not have it 

removed. A 103(g) complaint was filed with the federal inspector. 

With respect to the general condition of the roof in the areas 

cited, there is disputed testimony as to whether the condition 

was obvious and known to Consol. The area was examined once each 

shift, or three times per working day. The inspector's 

contemporaneous notes state that "the violations were so obvious 

they jumped out at you when you ride past so nobody could have 

examined this haulage on a daily basis and not see these 

crosscuts were falling out in to the track entry." Consol's 

witnesses testified that the roof condition in the haulageway was 

stable and adequately supported. However, with respect to the 

rock on the dislodged crib, there is no genuine dispute. Consol 

knew of the condition. The condition was hazardous. Consol was 

guilty of aggravated conduct constituting more than ordinary 

negligence in failing to correct the condition between July 21 

and August 12, 1987. The violation was due to Consol's 

unwarrantable failure to comply. 

CIVIL PENALTY 

Consol is a large operator, with a significant history of 

prior violations at the subject mine. The violation was serious, 

and caused by Consol's ag3ravated negligence. It was promptly 

abated in good faith. Based on the criteria in section llO(i) of 

the Act, I conclude that an appropriate penalty for the violation 

is $1000. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Order No. 2946760 issued August 12, 1987, including its 

findings that the violation was significant and substantial and 

caused by unwarrantable failure is AFFIRMED. The Notice of 

Contest is DISMISSED. 

1251 
2. Consol shall within 30 days of the date of this order 

pay a civil penalty in the amount of $1000 for the violation 

found. 

Distribution: 

~ RS VlX!iv:e.L 

James A. Broderick 

Administrative Law Judge 

Michael Peelish, Esq., Consolidation Coal Co., Consol Plaza, 

Pittsburgh, PA 15241 (Certified Mail) 

B. Anne Gwynn, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

slk 

1252 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

;.,c··w '.'80 12~4 ~PFER ROlJI EVARD 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

ARC MATERIALS CORPORATION - WMK TRANSIT MIX, 

Respondent 

SEP 161988 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 87-108-M 

A.C. No. 26-00457-05507 

Gibson Road Pit and Mill 

Docket No. WEST 88-8-M 

A.C. No. 26-00458-05508 

Buffalo Road Pit and Mill 

DECISION 

Appearances: Jonathan s. Vick, Esq., Office of the Solicitor, 

U.S. Department of Labor, Los Angeles, California, 

for Petitioner; 

Ralph Kouns, Safety Director, ARC Materials 

Corporation, Las Vegas, Nevada. 

Before: Judge Lasher 

This matter arises pursuant to Section llOCa) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. Section 820{a) 

{herein the Act). Petitioner seeks assessment of penalties for 2 

violations- both of which are conceded by Respondent-- which are 

cited in 2 Citations Cone in each docket). These two dockets 

were consolidated for hearing and decision by Notice dated March 

22, 1988. Both Citations, issued under Section 104{a) of the 

Act, charged Respondent {ARC) with infractions of 30 C.F.R. 

§ 56.14001, pertaining to "Guards" and entitled "Moving Machine 

Parts", which provides: 

Gears; sprockets; chains; drive, head, tail, and takeup 

pulleys; flywheels; couplings; shafts; sawblades; fan 

inlets; and similar exposed moving machine parts which 

may be contacted by persons, and which may cause injury 

to persons, shall be guarded. 

The Citations were issued by MSHA Inspector Earl w. McGarrah 

on different inspection dates and at the two mines reflected in 

the caption. Both Citations charged guarding violations involving tail pulleys and also alleged that the violations were 

so-called "Significant and Substantial" violations. 

Issues 

ARC concedes the existence of the occurrence of the violative conditions charged and described in both Citations. ARC 

1253 
contends, however, with respect to both violations that it was 

not "reasonably likely" for the potential hazard created by the 

violative conditions to have occurred and to have resulted in 

injuries to any of its employees (miners). See Stipulation, 

Court Ex. 1. In the context of this proceeding, the concept of 

"reasonable likelihood" applies to and affects two aspects of 

each violation; first, as part of the consideration of the 

mandatory penalty assessment factor of gravity 1/, and, secondly, 

as one of the elements of proof required in "significant and substantial" violations. 

General Findings. 

Respondent ARC, at the times material herein, owned and 

operated a "ready-mix" sand and gravel operation with 3 pits- two 

in Nevada, the Gibson Road and Buffalo Road pits involved here 

and a third pit at Bullhead, Arizona. Respondent's payroll at 

the time of the violations and also at the time of hearing 

approximated 150 employees CT. 76-78, 83). 

During the 2-year period prior to the commission of the 

violation charged in Citation No. 2671967, ARC had a compliance 

history of 19 prior violations at the Gibson Road Pit operation, 

8 of which were guarding violations CT. 25). 

During the 2-year period prior to the commission of the 

violation charged in Citation No. 2669032, ARC had a compliance 

history of 27 prior violations at the Buffalo Road Pit operation, 

9 of which were guarding violations CT. 94-95). 

After receiving notification of the violations charged in 

the two subject Citations, ARC demonstrated good faith in 

attempting to achieve rapid compliance with the regulations 

violated (Court Ex. 1). 

The penalties herein assessed will not jeopardize ARC's 

ability to continue in business (Court Ex. l; T. 15). 

A. Docket No. WEST 87-108-M 

Citation No. 2671967, issued December 16, 1986, by MSHA 

Inspector McGarrah, in Section 8 thereof, charges: 

1/ On the face of the Citations, under Section 10 A thereof 

ielating to "gravity", the Inspector checked the "Reasonably 

Likely" box indicating that an "injury or illness" would be 

reasonably likely to result from the violations. Box lOC was, as 

above noted, checked on both Citations indicating that the 

Inspector felt both violations were "Sigriificant and Substantial." 

1254 
The tail pulley on the west side feeder conveyor belt was 

not guarded. The pinch point was located about ground 

level where it could be contacted by a person and cause a 

serious injury. 

At the time this violation was observed, the plant was not 

operating (T. 53, 65-66, 72, 92). The Inspector was unable to 

ascertain how long the guard, which he observed against a wall 

nearby, had been off (T. 34, 36, 63). The Inspector believed a 

laborer had told him the guard had been removed for "cleanup" and 

not been put back on (T. 36-37). The circumstances surrounding 

the removal of .the guard and the timing thereof in relation to 

the shut-down of the plant were not ascertainable (T. 34-38, 63). · 

There is no basis to inf er that the guard would not have been put 

back prior to resumption of the plant's operation. 

A person walking on the walkway alongside the pinch point 

would have been within 10 to 12 inches of the pinch point (T. 60). 

The hazard created by the unguarded self-cleaning tail 

pulley in question was of a person having their clothing caught 

and being pulled into the pulley (Ex. M-6; T. 30, 40, 61), or of 

slipping and falling into it or the pinch point (between the 

bottom of the conveyor belt and pulley itself). The unguarded 

pulley was in an area where employees could be expected and would 

have a reason to be working (T. 42-46, 47, 62, 66). Four or five 

employees would have been exposed to the hazard (T. 51, 66, 72). 

Since the circumstances causing and surrounding the violation are not known it is concluded that it was not reasonably 

likely that the hazard envisioned by the Inspector would have 

occurred (T. 34-38, 89-90; Ex. M-6) even though reasonably 

serious or even fatal injuries could have resulted therefrom CT. 

67-69) had the hazard come to fruition. 

B. Docket No. WEST 88-8-M 

Citation No. 2669032, issued May 19, 1987, in Section 8 

thereof, charges: 

The tail pulley was not guarded on the type two seperator 

south dual conveyor belt at the dry plant. The pulley 

could be contacted by a person and could cause an injury. 

The tail pulley in question (depicted in Ex. M-12) was also 

adjoined by a walkway which would have been traveled frequently 

by employees (T. 97-98, 101). Inspector McGarrah testified that 

the walkway was a foot or more from the tail pulley and, with 

respect to the hazard created thereby, that "a person could be 

walking along this walkway with those raw material and rocks 

laying on it and could twist his ankle and fall into the tail 

pulley or slip and get a foot or something over into it." (T. 98). 

The hazard posed is similar to that described in connection with 

Citation No. 2671967 hereinabove. 

1255 
Four to six employees would have b.een exposed to the hazard 

CT. 101}. 

The plant was running on the day this violation was observed 

CT. 110-111). Inspector McGarrah testified that he was told by a 

laborer on the day the Citation was issued that "the guard had 

been taken off and hadn't been put back on" CT. 111). As with 

the prior Citation, the actual circumstances surrounding the 

commission of the violation and the length of time the guard was 

removed is not subject to determination. 

The record does indicate that it was reasonably likely that 

the hazard envisioned by the Inspector would have occurred CT. 

98, 99, 101-102, 105-106, 109) and that such would have resulted 

in the occurrence of reasonably serious injuries CT. 98, 105-106, 

109). 

Discussion 

In Secretary v. Texasgulf, Inc., 10 FMSHRC 498 (April 20, 

1988), the Commission reaffirmed its long-standing analytical 

formula for "significant and substantial" questions stating: 

Section 104(d)(l) of the Mine Act provides that a violation 

is significant and substantial if it 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." 30 U.S.C. § 814(d)(l). A violation is properly 

designated significant and substantial "if, based on the 

particular facts surrounding that violation, there exists a 

reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious 

nature." Cement Division, National Gypsum, 3 FMSHRC 822, 

825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 

(January 1984) the Commission explained: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum, the Secretary ••• must prove: (1) 

the underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard -- that is, a measure of 

danger to safety -- contributed to by the violation; C3) 

a reasonable likelihood that the hazard contributed to 

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

that the injury in question will be of a reasonably 

serious nature. 

The Commission has explained further that the third element 

of the Mathies formulation "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 

1256 
1984) (emphasis deleted). We have emphasized that, in accordance with the language of section 104CdlCl), 30 u.s.c. 

§ 814Cd>Cl), it is the contribution of a violation to the 

cause and effect of a hazard that mrist be significant and 

substantial. Id. In addition, the evaluation of reasonable 

likelihood should be made in terms of "continued normal 

mining operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 

1573, 1574 (July 1984). 

With respect to Citation No. 2671967, the Inspector conceded 

that the plant was not running at the time of his inspection and 

at the time the Citation was issued. Since it was not ascertainable how long the guard had been removed and the circumstances of· 

its removal are unknown, in the context of the plant's being shut 

down it would be pure speculation to conclude that Cl> there 

there was a reasonable likelihood that the hazard contributed to 

would result in an injury or (2) that ARC was negligent in the 

commission of this violation. This is not found to be a significant and substantial violation. In all the circumstances, this 

is found to be a moderately serious violation as to which there 

is no evidence of negligence on the part of the mine operator. A 

penalty of $100.00 is found appropriate. 

As to Citation No. 2669032, the record supports, and I have 

previously found the factual underpinnings for, the application 

of the Commission's Texasgulf formula. This violation is thus 

found to be significant and substantial. Since several employees 

would have been exposed to the hazard created by the violation, 

and since reasonably serious injuries could be expected to have 

been incurred had the hazard come to fruition, this is found to 

be a moderately serious violation. While this infraction 

occurred while the plant was in operation, there again was no 

basis for concluding that the mine operator was negligent. 

Weighing these factors in conjunction with lhe previous findings 

as to the operator's size, good faith in abatement and compliance 

history, a penalty of $125.00 for this violation is found and 

appropriate. 

ORDER 

Citation No. 2671967 in Docket No. WEST 87-108-M is modified 

to delete the "Significant and Substantial" designation thereon. 

Respondent shall pay the Secretary of Labor the total sum of 

$225.00 as and for the civil penalties above assessed for the two 

violations on or before 30 days from the date of this decision. 

#:" /. 1· d /_~ _,,// ,ff j?;;.. Ue<~ . Cl ;Y-tr7f~ _. /.~ 

Michael A. Lasher, Jr. 

Administrative Law Judge 

1257 
Distribution: 

Jonathan S. Vick, Esq., Office of the Solicitor, U.S. Department 

of Labor, 32~7 Federal Building, 300 North Los Angeles Street, 

Los Angeles, CA 90012 (Certified Mail) 

Mr. Ralph Kouns, Safety Director, ARC Materials Corporation - WMK 

Transit Mix, P.O. Box 14697, Las Vegas, NV 89114 (Certified 

Mail) 

/bls 

1258 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 20\988 

DAKCO CORPORATION, 

Contestant 

CONTEST PROCEEDINGS 

v. Docket No. WEVA 87-333-R 

Citation No. 2894879; 7/31/87 

SECRETARY OF LABOR, . . MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. WEVA 87-334-R 

Citation No. 2902509; 7/29/87 

Appearances: 

Before: 

Martinka No. 1 Mine 

Mine ID 46-03805 HIV 

DECISIONS 

Ross Maruka, Esq., Fairmont, West Virginia, for 

the Contestant; 

Mark D. Swartz, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern Notices of Contests filed by 

the contestant pursuant to section 105(d) of the Federal Mine 

Safety and Health Act of 1977, challenging the legality of two 

section 104(a) citations, with special "significant and substantial" CS&S) findings, issued at the mine by MSHA inspectors on July 29 and 31, 1987. The citations were issued 

because of the alleged failure by the contestant to provide 

training for one of its employees who was performing work at 

the mine preparation plant, and its failure to have available 

at the mine training records for seven employees who were also 

performing work at the plant. 

The contestant stipulated that as of July 31, 1987, the 

cited employee had not received the twenty-four (24) hour new 

miner training specified at 30 C.F.R. § 48.25, and that on or 

before July 29, 1987, it did not have training certificates or 

other records required by 30 C.F.R. § 48.29(a), certifying 

that seven of its employees working at the preparation plant 

1259 
had completed MSHA's approved training program. Contestant's 

defense is that the employees in question were construction 

workers performing construction work, rather than maintenance 

or service work, and were therefore excluded from the def inition of "miners" found in section 48.22 for the purposes of 

MSHA's cited mandatory training standards. MSHA takes the 

contrary position, and asserts that the employees in question 

were performing repair and maintenance work for frequent or 

extended periods of time, and were regularly exposed to safety 

hazards at the preparation plant. Under these circumstances, 

MSHA asserts that the employees were in fact "miners" within 

the regulatory definition, rather than "construction workers," 

and were therefore required to take the training mandated by 

its regulations. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 301, et seq. 

2. Sections 104(a) and 105Cd) of the Act. 

3. Commission Rules, 29 C.F.R. § 2700.1, et seq. 

4. Mandatory training standards 30 C.F.R. § 48.25 and 

48.29Ca). 

Issues 

The critical issue in this case is whether or not the 

contestant's.employees are "miners" subject to MSHA's training 

requirements as that term is defined by 30 C.F.R. 

§ 48.22(a)(l). If they are, the additional issues are Cl) 

whether the cited violations occurred, and whether or not they 

were "significant and substantial" CS&S). 

Stipulations 

The parties stipulated to the following (Exhibit J-li Tr. 

13-15): 

1. Dakco Corporation is subject to the 

jurisdiction of the Federal Coal Mine Safety 

and Health Act of 1977, Public Law 91-173, as 

amended by Public Law 95-164 (Act). 

2. The Administrative Law Judge has 

jurisdiction over this proceeding pursuant to 

section 105 of the 1977 Act. 

1260 
3. Dakco Corporation employees were doing 

work at the preparation plant of the Martinka 

No. 1 Mine during the period from May through 

August 1987. 

4. On and before July 29, 1987, Dakco 

Corporation did not have training certificates 

or other records certifying that seven (7) of 

its employees working at the Martinka No. 1 

Mine preparation plant had completed the MSHA 

approved training program. The seven (7) 

employees had not been trained as of July 29, 

1987. 

5. Victor Wilson was a Dakco Corporation 

ironworker working at the preparation plant at 

the Martinka No. 1 Mine during July 1987. 

6. As of July 31, 1987, Victor Wilson had 

not received the twenty-four (24) hour new 

miner training which is specified at 30 C.F.R. 

§ 48.25. 

7. Dakco Corporation was issued section 

104Ca> Citation No. 2902509 on July 29, 1987 

and section 104Ca> Citation No. 2894879 on 

July 31, 1987. 

8. The parties stipulate to ~he 

authenticity and admissibility of the following 

documents: 

a. A Copy of section 104Ca) 

Citation No. 2902509 issued by 

inspector Alex Volek on July 29, 

1987. 

b. A copy of section 104Ca) 

Citation No. 2894879 issued by 

inspector Edwin W. Fetty on July 31, 

1987. 

1261 
Discussion 

The contested citations in issue in these proceedings are 

as follows: :; 

DOCKET NO. WEVA 87-333-R 

Section 104(a) "S&S" Citation No. 2894879, issued on 

July 31, 1987, cites an alleged violation of mandatory training standard 30 C.F.R. § 48.25(a), and the cited condition or 

practice is described as follows: 

Victor Wilson, ironworker, has been 

assigned work duties consisting of maintenance 

and repair work in and around the preparation 

plant, not provided with che required training. 

A 104(g)(l) order (no. 2894880} will be 

issued in conjunction with this citation. Don 

Keffer is the responsible foreman. 

DOCKET NO. WEVA 87-334-R 

Section 104(a) "S&S" Citation No. 2902509, issued on 

July 29, 1987, cites an alleged violation of mandatory 

training standard 30 C.F.R. § 48.29(a}, and the cited condition or practice is described as follows: "A copy of the 

records of training were not available at the mine site for 

seven of the 28 employees performing maintenance and repair 

work on the preparation plant." 

Respondent's Testimony and Evidence 

Albert H. Kirchartz, testified that he is employed by the 

Southern Ohio Coal Company at the Martinka No. 1 Preparation 

Plant as a plant mechanic on the midnight shift and also 

serves as a safety committeeman for UMWA District 31, Local 

1949. He confirmed that he performs work in all areas of the 

plant, including the adjacent loadout, raw coal silos, and 

dump, and that his work includes the changing out of screens, 

complete units, pipework, and the repair and replacement of 

chutes. He explained the purpose of the preparation plant, 

and confirmed that the coal which is processed by the plant 

comes from the Martinka No. 1 Mine located approximately 

*/ Although the parties have characterized the contested 

~iolations as "orders," and they have been described as such 

in the files, they are in fact "citations." 

1262 
250 yards from the plant. He also identified and explained 

the equipment located inside the plant, and confirmed that 

approximately 16 employees normally work inside the plant on 

each of three shifts (Tr. 23-30). 

Mr. Kirchartz stated that he worked at the plant from May 

through August, 1987, and was present during the July 25 

through August 7, 1987 vacation period. He also stated that 

employees of the Dakco Corporation were in the plant for 

approximately 6 weeks, from May until "maybe a month after the 

vacation period." He believed that these employees worked in 

the plant from the 3 day Memorial Day period, and intermittently from that time through the vacation period from July 25 

to August 7, and for approximately a month after vacation. He 

stated that the employees worked the day shift, starting at 

7:00 a.m., and he would observe them coming in and starting to 

work, including periods when the plant was in operation (Tr. 

30-32). 

Mr. Kirchartz described the work being performed by the 

Dakco employees, and it included the removal and replacement 

of coal screens, the removal of handrails and the plant building siding, the removal and installation of new coal chutework, and the removal and replacement of the piping associated 

with the screens. He confirmed that Southern Ohio employees 

had previously performed some of this same type of work (Tr. 

34-36). 

Mr. Kirchartz stated that the preparation plant was in 

operation during the vacation period from July 25 through 

August 7, and that the midnight shift of July 25 "ran filter 

cake." He served as the tipple attendant and had to insure 

that all of the material was going through the chutes to the 

loading bins to be hauled away by trucks. He also worked in 

the plant control room the following day running the plant. 

Southern Ohio employees were also present in the plant during 

this time operating or testing equipment, and he observed 

people removing screens from the eighth floor of the plant 

(Tr. 37-38). He confirmed that all employees working in the 

plant, including Dakco employees, would have occasion to go to 

the plant control room to lock out equipment and tag it out 

while they were working on it, and although no coal was being 

processed through the plant at this time, he believed that 

"there was as many hazards at that time or just as many as 

with the coal being run through it" (Tr. 39). 

Mr. Kirchartz described the types of hazards presented in 

the preparation plant during the vacation period when no coal 

was being processed, including potential fire hazards from the 

1263 
use of oxygen and acetylene tanks and welding work, running 

belts, hoisting hazards, electrical lock-out hazards, slip and 

falls, blocked escapeways, noise, coal dust accumulated on 

structural ·beams and the chutes, and the presence of a 

5,000 gallon caustic soda tank located adjacent to a loading 

crane (Tr. 41-49). 

In addition to the aforementioned hazards, Mr. Kirchartz 

believed that Dakco employees would also be exposed to hazards 

associated with methane from the coal accumulated in the 

chutes and storage areas, the elevator hoist area used to 

carry men and small equipment, which was not always chained 

off, a warning light on the hoist which was not being used, 

tie-lines associated with the removal of the plant siding, and 

the old deteriorated screen framework and chutes which were 

being removed (Tr. 51-55). Mr. Kirchartz also confirmed that 

there were no barriers separating the work areas of Dakco 

personnel and Southern Ohio personnel. He also confirmed that 

the reason Dakco was doing the work during the 2-week period 

the mine was down was due to the scope of the work, which 

entailed the removal and replacement of a number of screens, 

and this work could not be performed during this time by 

Southern Ohio employees (Tr. 57). 

On cross-examination, Mr. Kirchartz agreed that the 

previous work performed by Southern Ohio employees in the 

plant with respect to the screens was not ot the magnitude or 

volume that was being done by Dakco during the vacation period. 

He also agreed that Dakco's work was performed on the third, 

eighth, and ninth floors of the plant, and it entailed the 

gutting, removal, and replacement of chutes, and screens, and 

tying the new ones into the old workings where necessary, and 

that any "repairing and patching" work was a necessary and 

integral part of the overall removal and installation work 

< ·rr. 60 > • 

Mr. Kirchartz confirmed that he was familiar "to a 

degree" with the citations which were issued to Dakco, and in 

his judgment, the work being performed by Dakco was "repairing 

dnd maintaining" work ('l'r. 63). He dgreed that the new 

structures installed by Dakco made for a more efficient system 

and increased the production capacity of the plant (Tr. 64). 

Mr. Kirchartz agreed that the noise levels to which Dakco 

employees may have been exposed to during the vacation period 

when the plant was not processing coal was less than the exposure when it was fully operational. He also agreed that the 

quantity of any accumulated coal dust would be less when coal 

was not being processed through the plant, but maintained that 

1264 
methane would still be present even if the coal were wet. He 

conceded that he made no actual count of the number of acetylene and oxygen tanks being used by Dakco during its work, and 

confirmed that all employees performing work on a piece of 

plant equipment, including Dakco employees, would have access 

to the plant control room so that they could lock-out the 

equipment while working on it (Tr. 64-68). 

Mr. Kirchartz confirmed that Dakco employees worked on 

all three shifts during the time in question, and that while 

he worked the midnight shift for the first 2 days of the vacation period, july 25 and 26, he began working on the day shift 

on July 27, and was present in the plant most of the time that 

Dakco people were performing their work. He also confirmed 

that the work he and other employees of Southern Ohio were 

doing in the plant was not the same work being performed by 

Dakco CTr. 68-69). 

Alex K. Volek, MSHA Coal Mine Inspector, testified as to 

his experience and duties, and he confirmed that since October 

1986, he has been assigned to inspect the work areas of independent contractors to insure compliance with the mandatory 

safety standards found in Parts 75 and 77, Title 30, Code of 

Federal Regulations, and the training requirements found in 

Part 48. He confirmed that he inspected the subject plant 

beginning on July 28, 1987, after determining that contractors 

were scheduled to do work there, and he identified some of the 

contractors, including Dakco, which had sub-contracted a job 

from Fair-Quip. At that time, he met with Mr. Don Keffer, the 

president of Dakco, and Mr. Keifer confirmed that his employees 

"would be doing some changing out work with screens, pipes and 

various other work in the plant." In response to his 

inquiries, Mr. Keffer speculated that 28 Dakco employees would 

be on the mine property, and that some of his people were 

trained. However, Mr. Keffer did not have any training records 

available at that time, and he informed Mr. Volek that he would 

make them available for review and discussion the next day, 

July 29. Mr. Volek stated that "I didn't see no addition to 

the plant being built. I didn't see any new construction being 

done" (Tr. 73-79). 

Mr. Volek stated that when he inspected the plant on 

July 28, with Mr. Keffer, he observed a number of oxygen and 

acetylene tanks in the elevator approach area which were not 

secured, and he issued a citation to Southern Ohio. He also 

encountered an employee leaving an elevator on which he had 

also stored his equipment, and although he discussed the 

matter with the employee, he did not issue any citation. He 

also observed welding and burning work being performed on 

1265 
different floors of the plant, and observed burning slag 

generated by the welding work falling to the floors below 

through the large holes and openings in the floors from where 

equipment had been removed. Some of the floor openings, which 

he estimated to ·be 15 by 12 feet, had ropes or tape strung 

along the back side as improvised handrails, and he concluded 

that they were insutf icient to prevent anyone from falling 

into the floor openings. He also encountered an obstructed 

walkway and a leaking acetylene tank which had previously been 

detected and scheduled for change out. Mr. Volek confirmed 

that he issued no citation for the leaking tank because it was 

being taken care of, and he could not recall issuing any 

citations for any of the other conditions which he observed 

(Tr. 80-85). 

Mr. Volek confirmed that he returned to the mine on 

July 29 and reviewed Mr. Keffer's training records which he 

had brought with him. Upon review of the records, Mr. Volek 

determined that 21 of Dakco's employees had been trained as 

reflected by the recordd produced by Mr. Keffer. However, 

Mr. Keffer had no training records for seven additional 

employees who were working at the mine. Under the circumstances, Mr. Volek issued a citation to Mr. Keffer for not 

having the records available as required by section 48.29(a), 

.and he fixed the aba~ement time for the next morning, July 30, 

1987 (exhibit R-1). He subsequently issued a section 104(b) 

order for non-compliance on July 30, when the records were not 

produced (exhibit R-1-A) (Tr. 85-88). 

With regard to the citations issued for the failure of 

Mr. Keffer to make available any training records for seven of 

his employees, Mr. Volek confirmed that he characterized the 

work being performed by these employees as "maintenance and 

repair work" on the face of the citation and order because he 

believed that "the work that they were doing, I felt, was 

maintenance and repair work." He also confirmed that he 

applied MSHA's guidelines as follows at (Tr. 89): 

A. As I -- the guidelines I have in relation 

~o maintenance and repair work versus construction work are such that if the miners are working in the environment of the contractors -- or 

the contractors are working in conjunction with 

the miners and they are exposed to mine hazards 

and there is no building of a new facility or 

no expansion of a new facility and they are in 

the work environment of the miners, then they 

are required to train. 

1266 
Mr. Volek confirmed that the guidelines to which he 

ref erred .are those stated on page 34 and 35 of an MSHA Administrative Manual dealing with Part 48 training and retraining of 

miners, July 1, 1985 {exhibit ALJ-1; Tr. 93-94; 109). He also 

confirmed that since Mr. Keffer produced the training records 

for some of his employees, he must have been aware of the fact 

that his employees were required to be trained. 

Mr. Volek explained that another prime contractor, 

Fair-Quip, had subcontracted the Southern Ohio preparation 

plant work to Dakco. At that time, Fair-Quip had its employees 

working at another plant performing repair and maintenance 

work, and the employees were not trained. Mr. Volek required 

them to be trained, and they did in fact receive MSHA approved 

training. Mr. Volek was sure that he issued a citation to 

Fair-Quip for not training its employees, but he was not certain {Tr. 101). Mr. Volek concluded that at the time Fair-Quip 

subcontracted the work to Dakco, Fair-Quip was aware of MSHA's 

training requirements, and its project manager John Pelagreen 

was present when he reviewed Dakco's records {Tr. 97). 

Mr. Volek confirmed that he did not discuss with 

Mr. Keffer the reasons for his failure to produce Dakco's 

training records on July 30, because Mr. Keffer did not appear 

at the mine that day. Mr. Volek was told that Mr. Keffer was 

still in his office in Athens getting the records, but since 

he did not appear at the time the citation was due for abatement, Mr. Volek issued the order {Tr. 103). The order was 

terminated the next day, July 31, by Inspector Edwin Fetty 

after Mr. Keffer produced his records that same day {Tr. 

103-104). Inspector Fetty determined that six of the seven 

Dakco employees for whom training records had been produced 

had been trained. Mr. Fetty also determined that one of the 

employees {Victor Wilson), had not been trained, and he issued 

a citation to Mr. Keffer on July 31 for not training 

Mr. Wilson. He also issued an order withdrawing Mr. Wilson 

from the mine until he was trained {exhibits R-2, R-2-A; Tr. 

102-104). 

Mr. Volek stated that contractors are not necessarily 

required to have their own MSHA approved training plans for 

tteir employees. If they choose not to have their own plan, 

they may use the existing plan applicable to the mine operator 

who hires them. Mr. Volek confirmed that at the time of his 

inspection he made no inquiry of Dakco as to whether it had 

its own training plan or relied on Southern Ohio's plan. 

On cross-examination, Mr. Volek stated that he could not 

recall the type of training received by the 21 Dakco employees 

1267 
for whom training records were made available by Mr. Keffer. 

He agreed that the type of training required of the other 

seven employees would have required removing them from work 

and undergoing a one-day long training program, and he was 

satisfied that the 21 employees did not require further 

training CTr. 106-107). 

Mr. Volek stated that he would not characterize the work 

being performed by Dakco's employees as "an alteration of 

existing facilities;" "rebuilding of an existing facility;" or 

the demolition "of an existing facility or a portion of an 

existing facility." He could not state whether the work being 

performed by Dakco was "routine maintenance" without speculating, but then said "I could say, yes, it is routine 

maintenance" CTr. 108). 

Referring to MSHA's manual guidelines, at pages 34 and 35 

(exhibit ALJ-1) Mr. Volek disagreed that the distinctions 

between "service and maintenance and repair," as opposed to 

"construction" was "a fuzzy or gray area," and stated that it 

was clear to him, particularly when he had to consider that 

the contractor's employees are working in the same environment 

and are exposed to the same hazards as miners. He conceded 

that he made no mention of any hazard exposure by Dakco 

employees when he issued his citation (Tr. 109-111). He also 

conceded that on the days that he was at the mine, it was not 

producing coal through the preparation plant, and that following MSHA's guidelines, he woul6 not consider the mine as "operational" on those days (Tr. 111). Mr. Volek also conceded 

that if one could establish that the mine was down at any 

particular time and was not operational, an employee engaged 

in construction work rather than in repair and maintenance 

work would fall under the exception found in MSHA's training 

requirements, and he would not be required to undergo training. 

In these circumstances, there would be no violation, and 

MSHA's counsel agreed that this would be the case (Tr. 114). 

Referring to the language which appears at page 35 of 

MSHA's Manual (exhibit ALJ-1), "Installing or rebuilding of a 

conveyor system would normally be considered construction," 

Mr. Volek agreed that substituting the words "chute system, 

screen system" for "conveyor system" would also be considered 

construction work. He also agreed that what Dakco was doing 

was "tearing out old and installing new chutework, taking out 

old and installing new screenwork" (Tr. 115-116). 

MSHA Coal Mine Inspector/Electrical Specialist Edwin W. 

Fetty testified as to his experience and duties, including 

work in the construction industry. He confirmed that he was 

1268 
at the plant, beginning on July 28, 1987, to conduct electrical-spot inspections of the work being performed by contractors, and was also there on July 29 and 31, 1987. He found no 

distinguishable barriers separating or distinguishing the work 

areas of Dakco and Southern Ohio employees, and he observed 

ribbon placed around exposed areas of the plant which had been 

cut through with jackhammers to facilitate the installation of 

pipes and chutes, and he also observed workers removing parts 

of screens and chutes. He noticed several hazards associated 

with rope or ribbon replacing handrails which had been 

removed, welding cables, torch and air hoses, oxygen and 

acetylene bottles, and materials lying in the walkways (Tr. 

124-129). 

Mr. Fetty stated that he was instructed to return to the 

mine on July 31, to follow-up on some pending paper work which 

Inspector Volek had issued, and after reviewing Dakco's training records with MSHA training specialist Aaron Justice, they 

found no training record for employee Victor Wilson. Mr. Fetty 

informed Mr. Keffer that Mr. Wilson would have to be withdrawn 

and trained and that he would issue an order and a citation 

requiring Mr. Wilson to be trained and that a record of this 

training had to be made available to him. Mr. Keffer immediately removed Mr. Wilson, and Mr. Wilson confirmed to Mr. Fetty 

that he had not been trained. Mr. Keffer advised Mr. Fetty 

that he needed Mr. Wilson on the job, and Mr. Fetty agreed to 

make himself available later in the day to abate the order and 

citation upon Mr. Keffer's proof that Mr. Wilson was trained. 

Mr. Keffer came by his home later that day, and after producing 

the required proof, Mr. Fetty terminated his citation and 

order, and the order previously issued by Inspector Volek (Tr. 

129-134). 

Mr. Fetty confirmed that during the course of his previous inspection of the plant on July 28, he issued no citations to Dakco. Any inapection of Dakco's work that day would 

have been in connection with electrical work. He had no knowledge as to how long Dakco may have been at the mine, and he 

could not recall speaking ~ith Mr. Wilson about the nature of 

the work he was performing. When asked about any assumptions 

that he may have made with respect to wheti1er Dakco was performing maintenance and repair work subjecting it to the 

MSHA's training requirements, Mr. Fetty responded as follows 

at (Tr. 136-137): 

A. No, I didn't really assume. It was in my 

opinion of being in the construction business 

and doing things. I have my own distinguishment between what is construction and what is 

1269 
construction repair. I feel if you remove 

something, a portion of, and replace it with 

something, you're actually restoring it back to 

what would be to originality or productive 

means. If you was putting all new chutework 

in, all new pipework, then that would be what I 

would consider to be construction work. 

Mr. Fetty believed that the screens removed and replaced 

by Dakco were probably the original screens placed in the 

plant, and that due to updating and modern technology, 

Southern Ohio felt it was to their advantage to replace them. 

He had heard ·from others that Dakco had been on the property 

since May, 1987, doing other jobs, and he knew that they were 

on the property in 1986 doing some work during the miners' 

vacation period, but he had no records confirming how long 

Dakco had been on the property. He confirmed that Dakco 

abated his citation and order concerning Mr. Wilson by giving 

him 8 hours of refresher training, and Mr. Fetty had no 

knowledge as to the kind of training given the other Dakco 

employees (Tr. 139-141). 

On cross-examination, Mr. Fetty confirmed that while he 

did not observed the work being performed by Dakco on July 31, 

1987, when he issued his citation, he did observe some of the 

work being performed by Dakco employees, particularly with 

regard to the removal of chutes and screens by means of a 

large crane. Mr. Fetty agreed that the new installation by 

Dakco upgraded and improved the efficiency of the system being 

replaced (Tr. 144). 

Contestant's Testimony and Evidence 

Donald A. Keffer, President, Dakco Corporation, testified 

that his company has been in existence since 1984, and that it 

is engaged in construction work in the coal mining industry. 

He confirmed that his company performed work at Southern 

Ohio's Martinka No. 1 Mine in 1987, and that prior to this 

time he had performed work at the mine three or four times, 

including 1986 when work was performed at the breaker building 

during the vacation period. Mr. Keffer stated that during the 

vacation period of 1987, Dakco removed four screens from the 

eighth floor of the plant, two screens from the seventh floor, 

and three screens from the third floor. Dakco was on the 

property on June 17 for the vacation job. It had previously 

been there from May 20 through 26 removing and replacing an 

old belt drive at the preparation plant, and when it finished 

that job, it came back and started on the vacation job. 

Employees were on the job from June 17 through the vacation 

1270 
period which began on July 25, and the work week was Wednesday 

through Sunday. The work performed before the vacation period 

involved the replacement of a magnetic separator tank, which 

was part of the plant upgrading, and during the vacation 

period, screens and chutes were dismantled, removed, and 

replaced, and cranes and hoists were used to remove the old 

screens through an opening in the side of the plant (Tr. 

147-152). 

Mr. Keffer identified two photographs depicting the 

removal of screens from the side of the plant opening (exhibits 

c-1 and C-2), and he explained that the work performed by Dakco 

in the plant included concrete floor work, and the installation 

of structural steel on the floors where the screens and chutes 

were replaced, and he confirmed that none of the work performed 

by Dakco employees involved "fixing something which was broken 

so it could then operate correctly." The work consisting of 

the "gutting out or removing existing chutework and existing 

pipework and existing screens and replacing them" with new ones. 

The installation of new equipment upgraded and improved the 

efficiency of the preparation plant, and Mr. Keffer was of the 

view that the work performed was construction work, rather than 

repair and maintenance work. He believed that the plant had 

been in place for approximately 12 years (Tr. 153-156). 

Mr. Keffer confirmed that at the time the citations were 

issued he discussed the matter with the inspectors and took 

the position that the training standards did not apply to his 

employees because the work they were perf ocming was construction work. However, the inspectors interpreted the work as 

"maintenance and repair" and so stated on the citations. 

Mr. Keffer also confirmed that Southern Ohio's policy requires 

that all mine visitor take 15-minute hazard training, including the wearing of hard hats, hard-toed shoes, and hearing 

protection as required while in the plant (Tr. 156-158). 

Mr. Keffer stated that the vacation work performed in 

1987 was his first major project at the plant and that 20 to 

25 percent of the plant was removed and replaced. Prior work 

performed in 1986 at the breaker building, which is physically 

separated from the plant, lasted 2 weeks, and although MSHA 

inspectors were present during that work, no training citations were issued. He confirmed that the employees working in 

the breaker plant had received no MSHA training, and that none 

of the inspectors who were present at that time questioned any 

lack of training (Tr. 159, 172-173). 

Mr. Keffer believed that the mine may have operated on 

Saturday and Sunday, July 25 and 26, before the citations were 

1271 
issued, and that while no coal was run through the plant, 

"filter cake" was. This was done to collect fine refuse material to clean up the water system, and entailed the operation 

of some pumps, filters, and one conveyor belt, and the work 

was done on the third floor next to where his employees were 

working CTr. 160). 

Mr. Keffer stated that at the time Inspector Volek 

appeared at the plant, most of "the junk" had been removed 

from the plant. All of his employees were experienced workers 

and were not "hired off the street" (Tr. 161). He characterized the previous work performed at the breaker plant as construction work involving the removal and replacement of 

deteriorated floors and grating, sandblasting, painting, and 

concrete work on seven floors (Tr. 164). 

Mr. Keffer stated that when he discussed the matter with 

Inspector Volek all of his employees working at the plant had 

initially received or signed up for the 15-minute hazard recognition training conducted by the foremen, and weekly safety 

meetings were held. In addition, the employees whose training 

records he produced to abate the citation had all received 

8-hour comprehensive annual refresher training which was given 

on July 28, 1987, when Mr. Fetty, Mr. Volek, and Mr. Justice 

took the position that he was engaged in repair and maintenance work. Six or seven employees were pulled off the job 

and given training that same night to meet MSHA's requirements 

(Tr. 167, 171). All of the training given his employees at 

this time, with the exception of the 15-minute hazard recognition, was given in order to abate the citations and to comply 

with MSHA's requirements as communicated to him by he 

inspectors (Tr. 172). 

With regard to Inspector Volek's citation, Mr. Keffer 

stated that after issuing the citation on Wednesday, July 29, 

1987, Mr. Volek advised him that he would meet with him on 

Friday morning. However, because of a schedule change, 

Mr. Volek returned prematurely on Thursday, July 30, and 

Mr. Keffer was not available because he was in Ohio retrieving 

his records (Tr. 172). 

Mr. Keffer believed that the training citations he 

received came about as a result of a dispute and grievance 

filed by the local union against his company for using 

non-union labor for the Southern Ohio work which he performed 

(Tr. 173-176). Mr. Keffer conceded that prior to July 28, 

1987, except for the 15-minute hazard recognition training 

required by Southern Ohio's policy, none of his employees had 

1272 
ever received the type of training required by MSHA's regulations, and this included the time that work was performed at 

the breaker building (Tr. 173-176). Not until after he 

received the citations did he ever subject any of his 

employees to any training on the assumption that they were 

subject to MSHA's regulations, and the training was given 

after the citations were issued so that they could be abated. 

Mr. Keffer confirmed that his consistent position has 

been that his employees were not covered by MSHA's training 

regulations because they are construction people. He denied 

that any of his work for Southern Ohio has been maintenance 

and repair work, except for those instances where a job bid 

required maintenance and repair work. He stated that his work 

with Southern Ohio has always been "new" and that "we take out 

old and put in new" (Tr. 180-183). 

Mr. Keffer explained that the work in question at the 

preparation plant was initially bid by Fair-Quip with Southern 

Ohio as a non-union job, and after Fair-Quip over-extended 

itself during the vacation period and could not do the job, it 

sub-contracted the work to Dakco, with Southern Ohio's 

approval (Tr. 184-187). Mr. Keffer confirmed that previous 

work done by Dakco for Southern Ohio consisted of the breaker 

building job when the refuse belt drive conveyor was changed 

out during Thanksgiving of 1986, and the replacement of an 

underflow thickener pump and new piping in the plant. This 

work was done in December, 1986, and in both instances Dakco 

was the prime contractor. Mr. Keffer also confirmed that more 

work is being scheduled for the 1988 vacation period, and that 

he contested the citations in order to establish a precedent 

as to the training requirements which he does not agree with 

(Tr. 188). 

On cross-examination, Mr. Keffer identified and explained 

several training certificates for several of his employees, 

and confirmed that the training information shown on the forms 

were to satisfy the requirements of Southern Ohio's hazard 

training policy (Tr. 189-195). He confirmed that his 

employees took the longer 8 hour training course in order to 

insure that he was in compliance with MSHA's requirements, 

even though he does not agree with them, and that his present 

company policy is that all of his employees take 8 hours of 

annual comprehensive training to avoid future citations (Tr. 

198-199). 

Frederick J. Hastwell, III, testified that he is a senior 

coal preparation engineer for the American Electric Power 

Service Corporation, the parent company of the Southern Ohio 

1273 
Coal Company, which operates the mine and pl~nt. He confirmed 

that he was the project manager for the work being performed 

by Dakco in July, 1987, and that he was on the premises on a 

daily basis, and also during the vacation period from July 25 

through August 7 CTr. 203-205). 

Mr. Hastwell confirmed that Southern Ohio's policy at the 

time Dakco was performing the work in the plant required that 

Mr. Keffer and each shift foreman receive hazard training, and 

they in turn would train their employees regarding specific 

construction hazards, and this policy applied to everyone 

coming on mine property. Mr. Hastwell confirmed that he was 

familiar with the citations issued to Dakco, and he explained 

the circumstances under which they were issued. He stated 

that Mr. Keffer became concerned that the inspectors were 

requiring other contractors present on the job to show that 

their employees had received MSHA approved training, and he 

permitted Mr. Keffer to use Southern Ohio's facilities to 

insure that his employees received the 8 hour refresher training to abate the citations, even though he CHastwell) did not 

agree that MSHA training was required (Tr. 203-210). 

Mr. Hastwell stated that in all of his dealings with contractors performing work for Southern Ohio, the Dakco case is 

the first instance that he knows of where MSHA has requested 

training records from contractors and issued citations for 

non-compliance (Tr. 211, 213). Inspector Volek disputed this 

contention, and stated that he has issued prior citations 

under similar circumstances, but without reviewing his 

records, he was uncertain as to whether he has issued citations to contractors who claimed that they were only performing construction work. Mr. Volek stated further that although 

most contractors performing work in preparation plants have 

taken the position that they are performing construction work, 

rather than maintenance and repair, they have always accepted 

the citations and trained their people without contesting the 

matter. Although these contractors may have a difference of 

opinion, Mr. Volek stated that he explained to them the same 

position he has taken in this case that such workers are working in the same environment as those miners in the production 

and extraction process (Tr. 214-216). 

Mr. Hastwell stated that he was present when Mr. Keffer 

reviewed· his training records with Inspector Volek on July 29, 

and discovered that everyone but Mr. Wilson had been trained. 

Mr. Hastwell stated that Mr. Wilson's failure to receive 

training was a mistake, and that the training records for the 

other seven employees were found not to be in order because of 

1274 
insufficient employment applications or improper hazard 

tr~ining. (Tr. 222). 

Mr. Hastwell agreed that the work performed by Dakco was 

construction work, and not repair and maintenance work, and 

that the replacement of the existing plant facilities provided 

a major improvement in the efficiency of the plant, including 

increased capacity and money savings. The replacement of the 

existing facilities resulted in an increased production capacity of over 200 tons of coal an hour, which resulted in an 

annual savings of millions of dollars. He also agreed that 

the employees at the mine had never undertaken a project of 

the magnitude of that performed by Dakco, and while employees 

in the past have dismantled broken units and rebuilt them, 

Dakco took out complete units, installed new structural steel, 

motors, wiring, put in units in completely new floor space 

configurations, and upgraded the plant. Mr. Hastwell 

described the work and equipment installation performed by 

Dakco by reference to a series of slides shown by Dakco's 

counsel (Tr. 223-233; exhibits C-3-A through C-3-S). 

Inspector Volek was called in rebuttal, and he denied 

ever suggesting that Mr. Keffer avail himself of union labor 

for the project in question. He indicated that he did mention 

that other contractors may be in a position to help him with 

training, and did so only because he knew that Mr. Keffer and 

Mr. Hastwell had a job to do CTr. 238-239). 

Mr. Hastwell was called in rebuttal, and he confirmed 

that the Dakco project took approximately 2 months to complete, 

starting with preliminary work on June 17, and extending 

through the vacation period for 2 or 3 weeks to approximately 

August 24. Since the completion of that project, Dakco has had 

no other involvement at the Martinka Mine or other Southern 

Ohio locations (Tr. 242-244). 

MSHA's Arguments 

In its posthearing brief, MSHA asserts that the Dakco 

employees working at the preparation plant were "miners" under 

the definition found in section 48.22(a)Cl), because they fall 

within two of the four categories set forth in that provision. 

MSHA states that the employees were working in a surf ace area 

of an underground mine, namely a preparation plant, and that 

they were regularly exposed to mine hazards. Secondly, MSHA 

states that the employees were maintenance or service workers 

contracted by the mine operator to work at the mine for 

frequent or extended periods, and that they do not fall within 

1275 
the exclusion for construction workers- and shaft and slope 

workers. 

MSHA maintains that Dakco's employees were regularly at 

the preparation plant from June 17, 1987 through at least 

August 17, 1987, and that they also worked at the plant during 

May 20 to 26, 1987. With the exception of the vacation period 

from July 25, 1987 through August 7, 1987, MSHA states that 

the preparation plant was in operation when Dakco employees 

were present, that the plant equipment was in operation during 

the vacation when filter cake was run during the midnight 

shift of July 25, 1987, and that various pieces of equipment 

were run dry and tested during the vacation. 

MSHA asserts that throughout the time that Dakco employees 

were working at the plant, employees of the operator, Southern 

Ohio Coal Company, were wo4king there as well, and that no 

physical barriers separated Dakco's employees from Southern 

Ohio's employees, and that both sets of employees were working 

in close proximity to each other on at.least some occasions. 

Under these circumstances, MSHA concludes that Dakco workers 

were exposed to any hazards stemming from the presence of 

Southern Ohio workers in the same work environment, and vice 

versa. MSHA further concludes that the hazards described by 

the witnesses during the hearing are those which one could 

expect to confront at any preparation plant environment, and 

that most, if not all, of these hazards could have been present 

even if Dakco workers had not been carrying out the particular 

project in question. These are hazards which could result from 

normal preparation plant operations, including maintenance and 

repairs that might be carried out by the plant employees 

themselves. 

MSHA points out that the work being performed by Dakco 

was the subject of a contractual relationship between 

Fair-Quip and Southern Ohio Coal Company, and since Fair-Quip 

subcontracted its work to Dakco, Dakco's employees thus were 

"contracted by the operator" Southern Ohio Coal Company. MSHA 

maintains that Dakco's employees were working at the mine "for 

frequent or extended periods" in that the particular project 

in question lasted at least 2 months, from June 17, 1987 

through at least August 17, 1987, and that Dakco had also been 

at the mine three or four previous times, including a project 

at the breaker building during the 1986 vacation and a project 

at the preparation plant from May 20-21, 1987. MSHA concludes 

that the particular project in question in these proceedings 

was for a substantial period of time and was one of a continuing series of projects carried out by Dakco at the mine. 

1276 
With regard to the project in question, MSHA maintains 

that Dakco workers were performing maintenance or service work, 

as opposed to construction, because they were carrying out 

activities at an already existing mine facility. MSHA asserts 

that the purpose of the Subpart B training regulations is to 

protect those workers who come in contact with the unique conditions and hazards of a mine environment, and that maintenance 

or service employees who work in the vicinity of, and in conj~nction with, mine products and equipment must receive this 

training. On the other hand, employees who are merely digging 

a mine, building a new mine structure, or expanding a mine into 

new facilities need only construction-oriented training of the 

sort to be included eventually in Subpart C when it is 

promulgated. 

MSHA takes the position that Dakco's employees were 

clearly working at an established functioning mine facility, 

shared the work environment with Southern Ohio employees, and 

had to contend with walkways, escapeways, equipment, and 

elevators that are laid out in a configuration unique to mines 

as opposed to other facilities. Moreover, Dakco employees 

were performing tasks done on other occasions by Southern 

Ohio's personnel, albeit on a significantly larger scale. 

MSHA maintains that certain details of Dakco's projectwhether they upgraded productive capacity, whether they 

iLstalled structural steel, whether they changed the physical 

layout of chutes, screens, and piping - are not critical to 

resolving this case. MSHA asserts that it is irrelevant that 

Dakco may call itself a construction contractor, and that the 

key distinction between "maintenance or service" versus "construction" work is based upon whether a new mine facility was 

being created or changes were being made within an established 

mine facility. MSHA concludes that in this case, the facts 

clearly establish that the latter was taking place, and that 

the work must be defined as "maintenance or service." 

MSHA asserts that the eventual purpose of Subpart C of 

Part 48 of its training regulations, when they are promulgated, 

will be to insure that appropriate training is provided to 

workers exposed to construction-oriented conditions and hazards 

as opposed to these uniquely related to surface mines and 

surface areas of underground mines. Workers to be covered 

under Subpart C are therefore e~cluded from the coverage of 

Subpart B. "Construction workers" for the purposes of this 

exclusion should be defined as those employees exposed strictly 

to construction conditions and hazards as opposed to those also 

iGvolving mine conditions and hazards. 

1277 
MSHA finds it noteworthy that the exclusiQn found in 

section 48.22(a)(l)(i) associates construction workers and 

shaft and slope workers, and it maintains that these are 

people engaged in digging new mines, not upgrading, rearranging, or maintaining existed mines. MSHA concludes that the 

definition of construction workers must fit within this con~ 

text since these workers are building or erecting entirely new 

facilities or new structures that are extensions of existing 

facilities, and are constructing or installing an external 

shell of a facility as well as the equipment to be placed 

inside. 

MSHA asserts that Dakco was not building a new preparation plant, was not adding a new building or section onto the 

preparation plant, and was not even building a new level onto 

the existing plant, a project that mignt arguably involve 

significant exposure to the mining conditions on other levels 

and thus be considered maintenance or service work. To the 

contrary, MSHA maintains that Dakco changed screens, chutework, and piping in an effort to replace old equipment and 

upgrade productive capacity at several levels of the already 

functioning plant, and that in these circumstances, its 

employees did not fall within the definition of construction 

workers as contemplated by section 48.22(a)(l)(i). 

Dakco's Arguments 

In its posthearing brief, Dakco asserts that the 

sub-contracting work it was performing at the preparation 

plant consisted of removing 12 year old chutes, screens and 

piping in completely different configurations, for the purpose 

of upgrading and improving the efficiency of the preparation 

plant. Dakco takes the position that the work being performed 

by its employees was construction work, rather than repair and 

maintenance work, and that in the circumstances, its employees 

were excluded from MSHA's training requirements. Dakco maintains that as construction workers, the employees performing 

the work in question were not "miners" within the definition 

of that term found in section 48.22Ca)(l), and were therefore 

not subject to MSHA's training regulations. Dakco points out 

that since both of the contested citations refer to the work 

being performed as maintenance and repair work, the inspectors 

obviously relied on this definitional language as the basis 

for the citations, rather than any concern for employee 

regular exposure to mine hazards. In short, Dakco contends 

that the basis for both citations is the inspectors belief 

that the work being performed was "repair and maintenance," as 

opposed to "construction." 

1278 
In support of its position, Dakco relies on MSHA's policy 

interpretation and guidelines concerning "construction" work, 

as opposed to "maintenance and repairs," as found in an 

August 26, 1985, MSHA Administrative Manual dealing with the 

training and retraining requirements found in Part 48, 

Title 30, Code of Federal Regulations (Exhibit ALJ-1). In 

this regard, Dakco makes reference to one of the guidelines 

found in paragraph (2) on page 35, of the manual which states 

that no training is required if the mine is not operational 

and workers are performing construction work. Dakco also 

makes reference to the manual policy interpretation of the 

term "constr~ction work," which states that such work 

"involves the building, rebuilding, alteration, or demolition 

of any facility or addition to an existing facility," and the 

interpretation of "maintenance or repair work" as including 

"routine upkeep of operable equipment or facilities and the 

fixing of equipment or facilities." 

Dakco asserts that the mine was not operational, and that 

the work being performed constituted the replacement of a 

12 year old system, which included the rebuilding, alteration 

and demolition of the chute system, screen system and piping, 

rather than routine upkeep, or the replacement of a single 

chute, screen, or pipe. Dakco further maintains that its preparation plant work was not designed to "repair" or "service" 

or "maintain" the chm::e system, screen system and piping, so 

that they could continue to operate at their optimum levels of 

performance. Rather, the work was done to upgrade the overall 

system and improve efficiency, with the result being that the 

upgraded system saved Southern Ohio millions of dollars. 

Dakco suggests that MSHA's enforcement action in these 

cases may have been prompted by union pressure to force it to 

use union workers for the work being performed at the preparation plant. In support of this assertion, Dakco stated that a 

grievance was filed by UMWA District 31 a few weeks before the 

issuance of the citation because Dakco is a non-union contractor, and that Inspector Volek was identified by one of its 

witnesses as the individual who suggested that experienced 

miners from the local Union hall could be called to do the 

necessary work at the plant. Dakco asserts further that in 

1986, when it was performing similar work on a breaker system 

at the mine, MSHA inspectors who were present raised no questions concerning training or training records of its employees, 

even though they had not received any MSHA training. 

Finally, Dakco suggests that any ambiguity found in 

MSHA's regulations or administrative manual should be resolved 

1279 
in its favor, and that on the facts here presented, the citations should be vacated. 

Findings and Conclusions 

Docket No. WEVA 87-334-R 

Fact of Violation-Citation No. 2902509, July 29, 1987, 

30 C.F.R. § 48.29(a) 

The facts in this case establish that Inspector Volek went 

to Southern Ohio's mine on July 28, 1987, to inspect certain 

work areas where several independent contractors were either 

performing work or scheduled to perform work. Mr. Volek spoke 

with Dakco's President, Donald Keffer, who was at the mine, and 

Mr. Keffer advised Mr. Volek that he would have approximately 

28 employees working at the mine, and that some of them had 

received training. Mr. Keffer advised Mr. Volek that he did 

not have any training records available with him at the mine, 

but that he would make them available to Mr. Volek. Upon his 

return to the mine, Mr. Volek reviewed the training records 

made available to him by Mr. Keffer. The records reflected 

that 21 Dakco employees had received the required MSHA training, and although Mr. Volek could not recall the type of training that they had received, he was satisfied that they did not 

require any further training. With regard to the remaining 

seven employees, Mr. Volek found no tra'ining records confirming 

that they had been trained, and he issued the citation because 

Mr. Keffer could not produce any training records for these 

employees, and he cited. a violation of training standard 

30 C.F.R. § 48.29(a), which provides as follows: 

§ 48.29 Records of training. 

(a) Upon a miner's completion of each MSHA 

approved training program, the operator shall 

record and certify on MSHA form 5000-23 that the 

miner has received the specified training. A 

copy of the training certificate shall be given 

to the miner at the completion of .the training. 

The training certificates for each miner shall 

be available at the mine site for inspection by 

MSHA and for examination by the miners, the 

miners' representative and State inspection 

agencies. When a miner leaves the operator's 

employ, the miner shall be entitled to a copy of 

his training certificates. 

1280 
Mr. Volek confirmed that he issued the citation because 

he believed the seven employees in question were engaged in 

maintenance and repair work, and were therefore required to be 

trained. In making this judgment, he relied on the nature of 

the work being performed by Dakco, and MSHA's policy 

guidelines found at pages 34 and 35 of MSHA Administrative 

Manual 30 C.F.R. Part 48 - Training and Retraining of Miners, 

August 26, 1985 (exhibit ALJ-1). Mr. Volek rejected 

Mr. Keffer's claims that his employees were "construction" 

workers, rather than "maintenance and repair" workers, and he 

relied on the manual guidelines which he believed required 

MSHA training for contractor employees who are working in the 

same work environment as other miners, and who are exposed to 

the same mine hazards, and who are not engaged in the construction or expansion of a new mine facility such as the existing 

preparation plant. 

MSHA's training requirements for miners working at surface 

mines and surf ace areas of underground mines are found in 

Subpart B of Part 48, Title 30, Code of Federal Regulations. 

The specific training requirements are found in sections 48.25 

through 48.28. The cited standard, section 48.29, is a record 

keeping requirement which requires an operator to record and 

certify on an MSHA form that a miner has received the specified 

training, and to have the training records available at the 

mine for inspection by the inspector. I find nothing in this 

record keeping requirement that requires any particular types 

of training. Those requirements are found in the aforementioned training standards. Section 48.29 simply requires certain record keeping upon completion of a miner's training. It 

does not per se mandate training. 

Notwithstanding Dakco's assertions that its employees are 

not required to be trained pursuant to MSHA's training requirement, the fact is that on July 29, 1987, when Mr. Volek 

reviewed Dakco's training records, Mr. Keffer produced training records for the 21 employees who had received and completed 

the requisite training, and insofar as these employees are concerned, Dakco was in compliance with section 48.29, because it 

produced records for the employees who had comoleted the 

training. 

With regard to the lack of any available training records 

for the seven employees cited by Inspector Volek, since they 

had not completed the training which Mr. Volek believed they 

should have received, no records were available, and this 

obviously explains the reason why Mr. Volex did not find them. 

Had the employees completed the training, the failure by 

Mr. Keffer to produce the records confirming this fact would 

1281 
have justified the issuance of the citation. However, based 

on the facts of this case, and Mr. Volek's testimony, I am. 

convinced that he issued the citation because he believed the 

seven employees in question had not received the training 

which he believed was required. Under these circumstances, I 

conclude and find that Mr. Volek should have cited the applicable training standard requirement, rather than the record keeping standard. Accordingly, I find no basis for concluding 

that Dakco was in violation of section 48.29, for failing to 

have training records available for the seven employees in 

question, and the citation IS VACATED. 

Docket No. WEVA 87-333-R 

Fact of Violation - Citation No. 2894879, July 31, 1987, 

30 C.F.R. § 48.25(a) 

In this case, Dakco is charged with a violation of mandatory training standard section 48.25(a), for failure to provide 

the required training for one of its employees performing work 

at Southern Ohio's preparation plant. The employee was identified in the citation as Victor Wilson, an ironworker. The 

facts show that MSHA Electrical Inspector Edwin Fetty was at 

the mine during July 28-31, 1987, conducting electrical spot 

inspections of certain work being performed at the mine by 

several contractors. Mr. Fetty returned to the mine on 

July 31, as part of a follow-up inspection, and to abate the 

section 104(b) order previously issued by Inspector Volek 

because of the asserted failure by Mr. Keifer to timely produce 

the training records for seven of his employees. Upon review 

of these records, Mr. Fetty found records confirming the fact 

that six of the employees had been trained, but he found no 

training record for Mr. Wilson, and he issued the citation 

because of Dakco's failure to train Mr. Wilson. Mr. Fetty also 

issued a simultaneous order withdrawing Mr. Wilson until he 

could be trained. Dakco withdrew Mr. Wilson, provided him with 

training that same day, and Mr. Fetty abated his citation and 

order. He also abated Mr. Volek's previously issued withdrawal 

order. 

Section 48.25 requires certain training for new miners. 

Included among the requirements is a provision requiring no 

less than 8 hours of training for all new miners before they 

are assigned to work duties. The 8 hours of training includes 

an introduction to the miner's work environment, hazard recognition, and health and safety aspects of the tasks to which 

the new miner will be assigned. 

1282 
Section 48.22(a)(l) provides the following definition of 

a "miner" who is required to receive training: 

For the purposes of this Subpart B(a)(l) 

"Miner" means, for purposes of sections 48.23 

through 48.30 of this Subpart B, any person 

working in a surf ace mine or surf ace areas of 

an underground mine and who is engaged in the 

extraction and production process, or who is 

regularly exposed to mine hazards, or who is a 

maintenance or service worker employed by the 

operator or a maintenance or service worker 

contracted by the operator to work at the mine 

for frequent or extended periods~ This definition shall include the operator if the operator 

works at the mine on a continuing, even if 

irregular, basis. * * * * This definition 

does not include: 

* * * * * * * 

Cl) Construction workers and shaft and 

slope workers under Subpart C of this Part 48: 

* * * (emphasis added). 

MSHA's policy guidelines concerning the training requirements of Subpart B, Part 48, Title 30, Code of Federal Regulations, are found at pages 34 through 36 of MSHA Administrative 

Manual 30 C.F.R. Part 48 - Training and Retraining of Miners 

(exhibit ALJ-1). The guidelines for persons performing construction, maintenance, or repair worK are found at page 35, 

and they state as follows: 

Construction work includes tne building, 

rebuilding, alteration, or demolition of any 

facility, or addition to an existing facility. 

Installing or rebuilding of a conveyor system 

would normally be considered construction. 

Maintenance or repair work includes routine 

upkeep of operable equipment or facilities, and 

the fixing of equipment or facilities. Replacement of a conveyor belt would normally be considered maintenance or repair. 

The training required for persons performing construction, or maintenance or repair work 

often depends upon: (1) whether or not a mine 

is operational; (2) whether the work is performed on a regular basis; and (3) whether the 

1283 
exposure to mining hazards is frequent. Generally, a mine is operational if it is producing 

material or if a regular mainten~nce shift is 

ongoing; it is not operational if it is not 

producing material due to miners' vacations, 

strikes, or other shutdown periods. Work performed on a frequent basis is work performed 

for more than five consecutive working days. 

Regular exposure to mine hazards is exposure 

that follows a recognizable pattern on a 

recurring basis. 

The following guidelines should be used to apply the 

above factors: 

( 1) If workers are performing sh"aft and slope 

construction work, whether or not the mine is 

operational - No training is required. 

(2) If the mine is not operational and workers 

are performing construction work - No training 

is required. 

(3) If the workers are performing maintenance 

or repair work on an infrequent or irregular 

basis, and they are independent contractors or 

their employees, Hazard training under 48.31 is 

required. However, if such workers are 

employees the operator - Comprehensive training 

under Subpart B is required. 

(4) If workers are performing maintenance or 

repair work on a frequent or regular basis, 

whether or not the mine is operational -

Comprehensive training under Subpart B is 

required. 

Dakco's president, Donald Keffer, confirmed that all of 

his workers were experienced, and he conceded that prior to 

July 28, 1987, none of his employees had.ever received the type 

of training required by MSHA's regulations. However, they did 

receive 15-minute hazard recognition training as required by 

Southern Ohio's policy. Mr. Keffer's position is that none of 

his employees are covered by MSHA's training requirements 

because they are engaged in construction work, rather than maintenance and repair work. He confirmed that he advised the MSHA 

inspectors of his position, but they believed his employees 

were engaged in maintenance and repair work and were required 

1284 
to .be trained pursuant to MSHA's requirements. Mr. Keffer confirmed that he agreed to remove the affected employees from the 

job so that they could receive 8 hour training in order to 

abate the citations, and that he now requires all of his 

employees to take 8 hours of annual comprehensive training 

pursuant to MSHA's requirements in order to avoid future 

citations, notwithstanding his position that his employees are 

not covered by MSHA's training regulations. 

In this case, Dakco is charged with the failure to provide at least 8 hours of new miner training for Mr. Wilson. A 

"new miner" is defined by section 48.22(a)(2)(c) as "a miner 

who is not an experienced miner." An "experienced miner" is 

defined by subsection Cb) as a person who received training 

within the preceding 12 months from an appropriate State 

agency; a person who has had at least 12 months' experience 

working in a surface mine or surface area of an underground 

mine within the past 3 years; or a person who has received new 

miner training as prescribed by section 48.24, within the preceding 12 months. Although Mr. Keffer testified that all of 

his employees were experienced workers, no testimony or evidence was forthcoming from Dakco or MSHA as to Mr. Wilson's 

background, experience, or prior training, and Dakco has conceded that he had not received the training required by the 

cited section 48.25. However, in order to establish a violation in this case, MSHA has the burden of establishing that 

Mr. Wilson was a "miner" within the definition of that term 

under section 48.22(a)(l), and that Dakco was required to 

provide him training. 

The definition in section 48.22Ca)(l) of a "miner" subject 

to MSHA's training requirements found in sections 48.23 through 

48.30, includes four categories of individuals performing work 

at the preparation plant in question, and they are as follows: 

any person who is engaged in the extraction 

and production process. 

any person who is regularly exposed to mine 

hazards. 

any person who is a maintenance or service 

worker employed by the operator. 

any person who is a maintenance or service 

worker contracted by the operator to work at 

the mine for frequent or extended periods. 

1285 
Also included in the definition of a "miner" subject to 

the training requirements of sections 48.23 through 48.30, are 

operators.working at the mine on a continuing, even if ir~egular basis. The term "operator" as defined by subsection Ce) 

of section 48.22, includes an independent contractor performing services or construction at the mine. Included in the 

section 48.22(a)(2) definition of "miner" for purposes of 

hazard training pursuant to section 48.31, is an "occasional, 

short-term maintenance or service worker contracted by the 

operator." 

Excluded from the definition of miner for purposes of section 48.23 through 48.30 training are construction and shaft or 

slope workers under MSHA's Subpart C, Part 48 construction 

safety and health standards. These standards have not as yet 

been promulgated by MSHA. The general OSHA construction industry health and safety standards were published in the Federal 

Register on February 9, 1979, 44 FR 8577, and they are found in 

Part 1926, Title 29, Code of Federal Regulations. I take official notice of a September 4, 1979, MSHA Memorandum circulated 

to "interested persons" by its Office of Standards, Regulations, and variances inviting comments to MSHA's draft safety 

and health standards for construction work on the surface of 

mine property. Section 1926.21 of the draft proposed regulations requires employer compliance with the training standards 

to be promulgated by MSHA as Subpart C, Title 48, Code of 

Federal Regulations, and it notes that "these regulations are 

currently under development by MSHA. ·The term "employer" as 

defined by draft section 1926.32Ck), includes an independent 

contractor performing services or construction at a mine, and 

the term "construction work" is defined by subsection (g) of 

section 1926.32Ck), as "the building, rebuilding, alteration, 

or demolition of any facility or addition to an existing facility at a surface mine or surface area.of an underground mine, 

including painting, decoration or restoration, associated with 

such work, but excluding shaft and slope work." 

In support of the citation in question, MSHA takes the 

position that the Dakco employees working at the preparation 

plant were "miners" under section 48.22(a)(l) because they 

fall within two of four categories set forth therein; namely, 

Cl) they were regularly exposed to mine hazards, and (2) they 

were maintenance or service workers contracted by the operator 

to work at the mine for frequent or extended periods. Furthermore, MSHA contends that these employees do not fall within 

the exclusion for construction worxers and shaft and slope 

workers. Taking into account MSHA's position in this case, in 

order to establish a violation with respect to Mr. Wilson, it 

1286 
has the burden of establishing that Mr. Wilson was either regularly exposed to mine hazards or was a maintenance or service 

worker contracted by the operator to perform work at the mine 

for frequent or extended periods of time. 

Regular Exposure to Mine Hazards 

The parties have stipulated that Dakco employees were performing work at the mine preparation plant from May through 

August 1987. Mr. Kirchartz testified that Dakco employees were 

working at the preparation plant during the 3-day memorial day 

period, which would have been the week-end of May 30-31, 1987, 

and intermittently from that time through the vacation period 

from July 25 to August 7, and for approximately a month thereafter (Tr. 30-32). Inspectors Volek and Fetty did not document 

the actual time frames during which Dakco was present at the 

plant during 1987, and the citation issued by Mr. Fetty does 

not state precisely when Mr. Wilson was performing work at the 

plant. Although the parties stipulated that Mr. Wilson was 

working at the plant "during July 1987," the only direct evidence establishing his actual presence at the plant is the 

citation issued by Mr. Fetty which reflects that Mr. Wilson was 

immediately withdrawn from the mine that day and allowed to 

return after he was trained. 

Mr. Keffer testified that Dakco probably had three or 

four jobs at the mine prior to 1987, and that during May 20 

through 26, 1987, work was performed at the plant removing an 

old belt drive and replacing it with a new one. After this 

work was completed, Dakco returned on June 17, 1987, to do 

some preparation work for the "vacation work," and this work 

included the replacement of a magnetic separator in the plant. 

Dakco continued its work at the plant dismantling, removing, 

and replacing screens and chutes, from June 17 through the 

vacation period which began on July 25, on a Wednesaay through 

Sunday work schedule (Tr. 149-150). No testimony was elicited 

from Mr. Keffer as to precisely when Mr. Wilson performed work 

at the plant, or what he was doing, and Mr. Wilson was not 

called to testify in this case. In response to pretrial 

interrogatories, Dakco lists the name of Victor Wilson as an 

ironworker who performed work at the plant "during the period 

including July 29, and 31, 1987." 

Although Dakco's responses to the interrogatories reflect 

that it had performed work at the mine during September -

December 1985, June - July, and December, 1986, and January 

and May, 1987, there is no evidence or testimony that 

Mr. Wilson had ever performed any work during these time 

periods. In short, the only probative evidence of record 

1287 
reflects that Mr. Wilson performed some work at the plant 

sometime during July 29 and 31, 1987. 

The testimony by the inspectors who issued the citations 

in question establishes that they issued them because they 

believed that Dakco's employees were performing maintenance 

and repair work, rather than construction work. Although 

Inspector Volek confirmed that he followed the manual guidelines, and generally alluded to contractor employees exposure 

to the same hazards to which other miners are exposed, his 

belief that Dakco employees were covered by MSHA's training 

requirements was based on his view that no new facility was 

being constructed or expanded. His citation makes no mention 

of any Dakco employees being exposed to any hazards, and 

although he testified as to several hazards which he believed 

were present, he issued no citations or violations to Dakco. 

With regard to Inspector Fetty's citation concerning 

Mr. Wilson, the citation makes no mention of any hazards associated with any work being performed by Mr. Wilson. Although 

Mr. Fetty alluded to several hazards w~ich he believed were 

generally associated with the work being performed by Dakco at 

the plant while he was there during July 28-31, 1987, he issued 

no hazard citations to Dakco, and admitted that when he issued 

his citation on July 31, 1987, he did not observe the work 

being performed by Dakco. As a matter of fact, Mr. Fetty could 

not recall speaking with Mr. Wilson about the nature of the 

work he was performing, and Mr. Fetty ·had no knowledge as to 

how long Dakco may have been at the mine performing work, and 

he had no factual basis for determining whether or not Dakco 

may have been present for frequent or extended periods of time 

(Tr. 138, 141). Having closely examined Mr. Fetty's testimony, 

it seems clear to me that he issued the citation because he 

believed the nature of Dakco's work involved restoration maintenance and repair work, rather than new work. 

The definition of "miner" found i~ section 48.22(a)(l) 

includes one who is regularly exposed to mine hazards. MSHA's 

general policy guideline found at page 34 of its manual adds 

the term "frequent" so that the definition reads "regular" or 

"frequent" exposure to mine hazards. The guideline then 

defines "regular exposure" as "a recognizable pattern of exposure on a recurring basis," and the term "frequent exposure" 

as "exposure to hazards for more than five consecutive days." 

Under the general discussion concerning persons performing 

construction, maintenance, or repair work, found at page 35 of 

the manual, the guidelines define work performed on a "frequent 

basis" as work performed for more than 'five consecutive working 

1288 
days, and "regular exposure to mine hazards" as exposure "that 

follows a recognizable pattern on a recurring basis." 

The contested citation in this caie is confined to 

Mr. Wilson, and no other Dakco employee, and I am constrained 

to limit my findings and conclusions only to Mr. Wilson and no 

one else. After careful review and examination of all of the 

evidence adduced in this case, I conclude and find that MSHA 

has failed to establish that Mr. Wilson was regularly exposed 

to any mine hazards within the meaning of that term as found 

in section 48.22(a), or in MSHA's policy guidelines. The evidence of record in this case does not establish that Mr. Wilson 

was exposed to any hazards, and any suggestions in this regard 

by MSHA are simply unsupportable, and they ARE REJECTED. 

Further, although Mr. Kirchartz alluded to several hazards 

which he believed were generally associated with the preparation plant work environment, there is absolutely no credible 

evidence establishing that Mr. Wilson was exposed to any of 

these asserted hazards. In short, MSHA has failed to establish any nexus between Mr. Wilson's work and any existing 

hazards which would have exposed him to any potential injury. 

Maintenance or Service Worker Issue 

MSHA's assertion that construction work can only take 

place when a mine or associated facility such as a preparation 

plant are initially built and become operational, and that any 

subsequent work may only be considered maintenance or repair 

is not well taken. MSHA's policy guidelines clearly state 

that the rebuilding, alteration, or demolition of any facility 

is construction work. Maintenance or repair work is construed 

by the policy as the routine upkeep or fixing of equipment and 

facilities. (Exhibit ALJ-1, pg. 35). The guidelines do not 

distinguish "new" or "old" facilities. 

On the facts and evidence presented in this case, it 

seems clear to me that the work performed by Dakco was construction work entailing an extensive demolition, rebuilding, 

renovation, and installation of a rather extensive coal chute 

and screen system in the preparation plant. The work included 

the removal and replacement of plant siding to facilitate the 

removal and replacement of complete units, extensive steel and 

concrete floor work to accommodate the new system, new floor 

configurations, and the removal and replacement of piping, 

·electrical wiring, and the like. The reconfigured chute and 

screen system resulted in a marked increase in the plant's 

productive capacity, with substantial savings to the mine operator. Given the scope of the project, I conclude and find 

1289 
that the work performed by Dakco was not "routine upkeep and 

fixing." 

MSHA's further assertion that the exclusion of construction workers from the definition of "miner" found in section 

48.22(a}, for purposes of mandatory training sections 48.23 

through 48.30, is limited only to workers engaged in shaft and 

slope construction work is likewise not well taken. MSHA's 

current training regulations found in Subpart B, of Part 48, 

which are applicable to surface areas of underground mines, 

contain no mention or definition of the term "construction 

work." The only Subpart B reference to "construction" is 

found in the d~finition of "operator" in section 48.22(e), 

which includes "any independent contractor identified as an 

operator performing services or construction at such mine." 

On the other hand, MSHA's Subpart A training regulations, 

which apply to underground mines, exclude shaft and slope 

workers, workers engaged in construction activities ancillary 

to shaft and slope sinking, and workers engaged in the construction of major additions to an existing mine which 

requires the mine to cease operations 1section 48.2(i)). 

Subparts A and B both rely on MSHA's unpromulgated Subpart C 

regulations as the basis for excluding construction workers 

and shaft and slope workers. 

MSHA's draft unpromulgated construction regulations, 

Part 1926, Title 29, Code of Federal Regulations, at section 

1926.32(g), defines the phrase "construction work" as follows: 

[T]he building, rebuilding, alteration, or demolition of any facility at a surface mine or 

surface area of an underground mine, including 

painting, decoration or restoration associated 

with such work, but excluding shaft and slope 

sinking. (Emphasis added). 

As noted above, MSHA's unpromulgated draft definition of 

"construction work" specifically excludes shaft and slope sinking, and the exclusionary language found in section 48.22(i}, 

on its face distinguishes construction workers from shaft and 

slope workers. Under the circumstances, I have difficulty 

comprehending MSHA's argument that only shaft and slope 

workers qualify for an exemption from MSHA's Subpart B comprehensive training requirements. I also have difficulty in 

accepting the reliance by the parties on regulations such as 

Subpart C, which have yet to be promulgated by MSHA. 

MSHA's policy guidelines concerning the training requirements found in its Subpart B regulation~ appear to be based on 

1290 
a mix of the definition of a "miner" for training purposes pursuant to Subpart A, as well as Subpart B, and to this extent I 

find the guidelines to be rather confusing and contradictory. 

For example, guidelines No. 1, No. 2, and No. 4, which appear 

at page 35 of the policy manual, are premised in part on the 

fact that a mine may be operational or not. Guideline No. 1 

totally exempts shaft and slope construction workers from all 

training requirements, regardless of whether or not the mine is 

operational. Guideline No. 2 totally exempts workers "performing construction work," without limitation as to whether or not 

it is slope and shaft work, as long as the mine is not operational. Guideline No. 4 requires comprehensive training if 

workers are performing maintenance and repair work orr a f requent or regular basis, regardless of whether or not the mine 

is operational. 

I find nothing in MSHA's Subpart B surface area training 

regulations that even suggests that the operational mode of the 

mine at any given time is the determining factor as to whether 

training is required. On the other hand, the definition of a 

covered "miner" found in Subpart A, section 48.2, for underground mines, includes language that excludes workers engaged 

"in the construction of major additions to an existing mine 

which requires the mine to cease operations." If this language 

found in section 48.2 is the basis for MSHA's policy distinctions between an operational and non-operational mine for purposes of the training requirements found in Subpart B, it would 

seem that MSHA has published a surface area training policy 

based on regulatory provisions applicable to underground mines. 

Another area of confusion is found in guideline No. 3. 

That guideline states that maintenance or repair workers of 

independent contractors who work on an infrequent or irregular 

basis are only required to have hazard training under training 

section 48.31. However, the guideline goes on to state that 

if such workers are employees of the operator, comprehensive 

training is required. Since the term "operator," by definition, includes an independent contractor performing services 

or construction at a mine, one could argue that contractor 

employees working on an infrequent or irregular basis are also 

required to have comprehensive training. 

In the case at hand, MSHA takes the position that 

Mr. Wilson comes within the section 48.22Ca)(l) definition of 

"miner" for purposes of section 48.23 through 48.30 training 

because he was a maintenance or repair worker contracted by 

the operator to perform work at the mine for frequent or 

extended periods of time. Since I have concluded that Dakco 

was engaged in construction work, rather than maintenance or 

1291 
repair work, it follows that Mr. Wilson's work status was that 

of a construction worker, rather than a maintenance or repair 

worker. 

MSHA's policy guideline No. 2 states that workers performing construction work at a mine which is not operational are 

not required to be trained. MSHA's policy states that an 

"operational" mine is one which is producing material, or one 

in which there is an ongoing regular maintenance shift. A 

mine which is not producing material because of miners' vacations is not considered to be operational. In the instant 

case, MSHA has conceded that the mine was not producing coal 

and was not operational during the vacation period from 

July 25 through August 7, 1987, and Mr~ Kirchartz confirmed 

that no coal was being processed during this vacation period 

{Tr. 39). Inspector Volek conceded that when he was at the 

mine, no coal was being produced, and he did not consider the 

mine to be operational {Tr. 111). He further conceded that if 

an employee were engaged in construction work when the mine 

was not operational, he would not require training {Tr. 114). 

MSHA's counsel also agreed with Mr. Volek's position. 

MSHA's policy guideline No. 3 requires only hazard training under section 48.31, for independent contractor workers 

performing maintenance or repair work on an infrequent or 

irregular basis. If such workers are employees of the operator, comprehensive training is required. Guideline No. 4 

requires comprehensive training for workers performing maintenance or repair work on a frequent or regular basis regardless 

of whether the mine is operational or not. MSHA's policy 

states that "work performed on a frequent basis" is work performed for more than 5 consecutive working days. 

Insofar as Mr. Wilson is concerned, Inspector Fetty had 

no knowledge as to the nature of his work, nor did he know how 

long Dakco had been at the mine performing work. Further, he 

did not document the period of time that Mr. Wilson may have 

been present at the mine, and the citation which he issued 

does not state when Mr. Wilson performed any work at the mine. 

As noted earlier, although the parties stipulated that 

Mr. Wilson was working at the plant "during July 1987," the 

only evidence establishing the number of days he was performing work is the citation issued by Mr. Fetty on July 31, 1987, 

which reflects that Mr. Wilson was withdrawn on that day, and 

irrunediately returned to work after he w~s trained that same 

day. Dakco's pretrial responses to interrogatories reflect 

that Mr. Wilson performed work at the plant "during the period 

1292 
including July 29 and 31, 1987." Under all of these circumstances, -and based on the available evidence, I can only conclude that the record establishes that Mr. Wilson at best 

performed work at the mine on 2 days when the mine was not 

operational. I find no evidentiary support for any conclusion 

that Mr. Wilson was a worker performing work for more than 

5 consecutive days. 

In view of the foregoing, and on the basis of my findings 

and conclusions that Mr. Wilson was an independent contractor 

construction worker, who was not regularly exposed to any mine 

hazards, rather than a maintenance or repair worker regularly 

exposed to any mine hazards, or a maintenance or repair worker 

working at the mine for frequent or extended periods, or a 

worker working at the mine which was operational, I conclude 

and find that MSHA has failed to establish by a preponderance 

of any credible testimony or evidence that Mr. Wilson was a 

"miner" within the definition of section 48.22(a)(l), or that 

he required the comprehensive training mandated by the cited 

section 48.25(a). Under the circumstances, I conclude and 

find that MSHA has failed to establish a violation, and the 

citation IS VACATED. 

ORDER 

In view of the forgoing findings anu conclusions, IT IS 

ORDERED THAT: 

1. Dakco's Contests ARE GRANTED. 

2. The contested section 104(a) Citation 

Nos. 2894879 and 2902509, ARE VACATED. 

/~· Jf ,/ / ~~/ - . 

/;,:::--__/f"'l,.fy £,_/ 1,f· .[' .£>.~ ..,. ·~George/"A. Ko tra::; '-

Adminfstrative Law Judge 

1293 
Distribution: 

Ross Maruka, Esq., 221 Washington Street, Fairmont, WV 

26554-3165 ·ccertified Mail> 

Mark D. Swartz, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

/fb 

1294 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 231988 

STANLEY BAKER. DISCRIMINATION PROCEEDING 

Complainant 

v. : Docket No. KENT 87-142-D 

KENTUCKY STONE COMPANY, 

Respondent 

DECISION 

Pulaski Plant 

Appearances: Philip P. Durand, Esq. and Wendy Tucker, Esq., 

Ambrose, Wilson, Grimm & Durand, Knoxville, 

Tennessee, for Complainant; 

John G. Prather, Jr., Esq., Law Offices of John G. 

Prather, Jr., Somerset, Kentucky, for Respondent. 

Before: Judge Weisberger 

On July 28, 1988, a Decision was issued in which it was 

found that Complainant had established a cause of action under 

section 105Cc> {the Act). The Decision contained an Order 

directing the Complainant to file a statement, within 20 days of 

the Decision, indicating the specific relief requested. The 

Order further provided that Respondent shall have 20 days to 

reply to Complainant's statement. It was further provided that 

the Decision was not to be final until a further order was issued 

with respect to Complainant's relief. 

On August 15, 1988, Complainant filed a request for specific 

relief, which set forth the following requested relief: 

1. Net back wages to August 22, 1988 

2. Litigation Expenses Cother than #3) 

3. Attorney's fees to August 22, 1988 

4. Interest* 

Interest on net back wages 

Interest on net insurance damages 

Total interest on damages 

$23,168.00 

$ 2,034.00 

$17,871.00 

$ 5,821.00 

$ 547.00 

$ 6,368.00 

5. $52.00/year bonus given each year for wearing steel tip 

boots. ($52.00 x 3 years) $ 156.00 

1295 
6. Reinstatement in his former position at Kentucky Stone 

as a front-end loader operator, together with all the 

accompanying benefits and privileges. 

7. Reinstatement as well as back contribution to the 

pension plan at Kentucky Stone, such that the Plaintiff 

will be afforded the same beneiits and rights he would 

have had if he had not been fired. 

8. Net increase in health insurance expenses incurred as a 

result of the higher costs of insurance provided at 

Elmo Greer & Sons · $ 2,890.00 

9. Any safety bonuses paid for th~ years 1986, 1987, or 

1988. 

*By agreement of the Parties, interest will be computed 

at a stated rate of 10 percent simple interest per 

annum. 

On August 22, 1988, Respondent filed a Response to 

Complainant's Request for Specific Relief, in which Respondent 

requested itemization of back wages, litigation expenses, 

attorney's fees, and equitable relief. On August 25, 1988, in a 

telephone conference call initiated by the undersigned with 

Counsel for both Parties, it was agreed that Complainant would 

furnish Respondent with the requested itemization. On 

September 1, 1988, Complainant filed an Amendment to Request for 

Specific Relief, which set forth an itemization and computation 

of back wages, attorney's fees, and litigation expenses. On 

September 2, 1988, an Order was entered allowing Respondent until 

September 12, 1988, to respond to Complainant's Amendment to 

Request for Specific Relief. To date, Respondent has not filed 

any such response. 

Accordingly, I conclude that Respondent does not challenge 

the Specific Relief requested, and I find, such relief to be 

reasonable and justified. 

ORDER 

Based on the record in this case, it is ORDERED that: 

1. The Decision issued July 28, 1988, is CONFIRMED, and is 

now FINAL. 

2. Respondent shall, within 30 days of this Decision, pay 

Complainant: 

1296 
a. Net back wages to August 22, 1988, in the amount of 

$23,168.00. Respondent shall also pay Complainant back pay, at 

the rates set forth in Complainant's Amendment to Request for 

Relief for the period August 23, 1988, until Complainant is 

reinstated at his former job. 

b. Recoupment of litigation expenses to August 22, 

1988, in the amount of $1,751.00. 

c. Attorney's fees to August 22, 1988, in the amount of 

$18,564.00. 

d. Interest in the amount of $6,368.00 to August 22, 

1988. In addition, Respondent shall pay Complainant interest, at 

the rate set forth in Complainant's Amendment to Request for 

Relief, for the period from August 23, 1988, until Complainant is 

reinstated at his former ]Ob. 

e. Past bonuses missed in the amount of $156.00 for 

wearing steel tip boots. 

f. Net increase in health insurance expenses incurred 

as a result of the higher cost of insurance provided at Elmo 

Greer & Sons in the amount of $2,890.00. 

g. Any safety bonuses paid for the years 1986, 1987, 

and 1988. 

3. Respondent shall, within 5 days of this Decision, 

reinstate Complainant to his former position at Kentucky Stone as 

a front-end loader, together with all the accompanying benefits, 

privileges, and shall provide back contributions to the pension 

plan at Kentucky Stone such that Complainant will be afforded the 

same rights he would have had had he not been fired. 

Distribution: 

Avram ~~ Weisberger 

Administrative Law Judge 

Wendy F. Tucker, Esq., Ambrose, Wilson, Grimm & Durand, Valley 

Fidelity Bank Building, P. O. Box 2466, Knoxville, TN 37901-2466 

(Certified Mail) 

John G. Prather, Jr., Esq., P. O. Box 106, 38 Public Square, 

Somerset, KY 42501 (Certified Mail> 

dcp 

1297 
FEDERAL MINE SAFETY AND HEALTH RiVIEW CdMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR • 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 23\988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MHSA), 

Petitioner 

v. 

EUREKA STONE QUARRY, INC., 

Respondent 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 88-62-M 

A. C. No. 36-04243-05506 

Pocono Quarry & Plant 

Appearances: James E. Culp, Esq., Office of the Solicitor, 

u. s. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary; 

John T. Kalita, Jr., Esq., Eureka Stone Quarry, 

Inc., Philadelphia, Pennsylvania, for the 

Respondent. 

Before: Judge Weisberger 

Statement of the Case 

On January 19, 1988, the Secretary. (Petitioner) filed a 

Petition for Assessment of Civil Penalty for an alleged violation 

by the Respondent of 30 C.F.R. § 56.320~. Respondent filed its 

Answer on March 2, 1988. Pursuant to notice, the case was heard 

in Philadelphia, Pennsylvania, on March 25, 1988. Robert L. 

Carter and Steve Moyer, Jr., testified for the Petitioner. James 

Cliff, James L. Gower, and Barry Lutz testified for the 

Respondent. Petitioner filed its Propo~ed Findings of Fact and 

Memorandum of Law on August 1, 1988, and Respondent filed its 

Proposed Findings of Fact, Conclusions of Law, and Memorandum of 

Law on July 29, 1988. Time was allowed for Reply Briefs, but 

none were filed. 

Stipulations 

The Parties entered into the following stipulations as contained in Respondent's Pretrial Statement: 

1. Pocono Quarry and Plant Mine (hereinafter referred 

to as "Pocono Quarry") is owned and operated by Eureka 

Stone Quarry, Inc., a Pennsylvania Corporation with 

off ices at Pickertown and Lower State Roads, Chalfont, 

Pennsylvania. 

1298 
2. Pocono Quarry is subject to the provisions of the 

Federal Mine Safety and.Health Act of 1977. 

3. In the 2 year period prior to May 1987, Pocono 

Quarry had zero paid violations of the standards 

contested in this case. The size of the operation is 

that the Pocono Quarry employs 25 employees. The 

annual production of Eureka Stone Quarry is approximately 304,903 tons; the annual production of Pocono 

Quarry is approximately 57,562 tons. 

4. The Administrative Law Judge has jurisdiction over 

this matter. 

5. The Respondent operates nine mines. 

6. The authenticity of the exhibits to be offered at 

hearing is hereby stipulated. No stipulation is made 

as to the facts asserted in such exhibit. 

7. The subject of the Citation and Termination were 

properly served on a duly authorized representative of 

the Secretary of Labor upon agents of Eureka Stone 

Quarry, Inc. as to the dates, time and places stated 

therein and may be admitted into evidence for the 

limited purpose of establishing their issuance, but not 

for the truthfulness or relevance of any statement 

asserted therein. 

8. The alleged condition was abated within the 

required time. 

9. The imposition of a proposed penalty by the 

Administrative Law Judge will not affect Respondent's 

ability to continue in business. However, Respondent 

does not stipulate to the appropriateness of the imposition of any penalty. 

Issues 

1. Whether the Citation was so vague as to have denied 

Respondent due process. 

1299 
2. Whether the Respondent violated 30 C.F.R. § 56.3200, and 

if so, whether the violation was of such.a nature as could significantly and substantially contribute to the cause and effect of a 

mine safety ~r health hazard. If section 56.3200 has been violated, it will be necessary to determine the appropriate civil 

penalty to be assessed in accordance with section llOCi> of the 

Federal Mine Safety and Health Act of 1977. 

Regulations 

30 C.F.R. § 56.3200 provides as follows: 

Ground conditions that cerate: a hazard to persons 

shall be taken down or supported before other work or 

travel is permitted in the affected area. Until 

corrective work is completed, the area shall be posted 

with a warning against entry and, when left unattended, 

a barrier shall be installed to impede unauthorized 

entry. 

Citation 

Order No. 2851904, issued on May 29, 1987, provides as 

follows: 

A section of high wall on the East face had loose 

and fractured rock throughout the top half of the high 

wall. The rock appeared it could slide out and down 

the face into the shovel that was digging under it 

(56.3131). The high wall was approximately 50 ft high. 

The loose fractured rock extended approximately 30 ft 

wide, at the top of the face on the high wall. The 

high wall was a working face where the Biryrus crib 

shovel F-614, and three quarry haul trucks had previously worked (56.3200). 

Findings of Fact and Conclusions of Law 

Robert L. Carter, an Inspector for the Mine Safety and 

Health Administration, testified that on May 29, 1987, in the 

course of an inspection of Respondent's Pocono Quarry and Plant, 

he observed, in the muck pile of the highwall, over hanging 

material which he described as a very large boulder that would 

not fit in a 35-ton truck, and other large material. He observed 

a shovel operator, James L. Gower, approximately 5 feet from the 

face digging material from the face, and below the overhang. He 

testified that he observed rocks sliding down the pile when Gower 

dug, and opined that further digging underneath the material that 

he was concerned about, would cause it to slide down, causing 

injury to those in the area. Steve Moyer, Jr., an Inspector for 

the Mine Safety and Health Administration, essentially 

corroborated Carter's opinion with regard to the hazard of the 

conditions observed by Carter. Carter further testified that 

1300 
testified that when he approached Gower and told him the he was 

working under a dangerous condition, and asked him if he was 

aware of it, Gower indicated in the affirmative. Carter 

testified that Gower said he realized that there was a dangerous 

rock that could come down on him. 

In essence, it is Respondent's position that it was not 

afforded due process, inasmuch as the Citation in question 

describes the hazardous condition as being located at the top of 

the face on the highwall, whereas Carter's testimony placed the 

condition in the muck pile. Respondent argues that due process 

was denied, as· it prepared its defense based on the condition of 

the highwall rather than the condition of the muck pile. ·

1 

Respondent further asserts, in essence, that it was irrevocably 

prejudiced by the failure of the Citation to properly describe 

the location of the hazardous condition, as the muck pile itself 

was quarried and no longer available for its testing and measurement. 

The rocks in question were, as indicated by Carter, located 

in the muck pile. Carter also recognized the difference in definition between a highwall and a muck pile, and appeared to agree that 

to be "technical" the Citation should have referred to the muck pile. 

(Tr. 47) I find that the language of the Citation in its entirety 

is specific enough to provide notice of the location of the rocks as 

depicted in Government Exhibits 2, 3, 4, and 6. Additionally, I 

find that the wording of the Citation has not prejudiced the 

Respondent, as it has not been established that it prevented 

Respondent from defending against the Petition herein. The evidence 

fails to establish that Respondent was not apprised of the alleged 

hazardous material in question. Barry D. Lutz, Respondent's 

driller, was working on the highwall on the date in question, and 

indicated there was no loose or unconsolidated material on the highwall, and that there was not any rock on the face that appeared to 

be in danger of slipping down. Thus, Lutz may not have had knowledge of the location of the cited material. However, he was not 

one of Respondent's managers, and there is no evidence he had any 

conversations with Carter with regard to the latter's finding of a 

dangerous condition. In contrast, Carter testified he discussed the 

condition with Joe Less, Respondent's Superintendent, and had a 

"long discussion" with Respondent's Manager, James Cliff. (Tr. 69) 

The former did not testify, and the latter (Cliff-Y-, did not state 

that he had no notice of the location of the alleged hazardous rocks. 

Indeed, although he opined there was no danger, he saw some large 

rock when viewing the face and indicated the highwall had loose 

material and was fractured. His testimony further indicates he was 

aware of large pieces of rock which he thought were on the muck pile 

not attached to the highwall. (Tr. 125, 126) Also, James c. Gower, 

Respondent's Shovel Operator, although he denied that he told Carter 

he was aware he was working under a dangerous condition, he nonetheless indicated that although the highwall did not have loose rock, 

there was fractured rock. Also, in its Response filed on March 2, 

1988, Respondent manifested that it had notice of the location of 

1301 
the rocks in question, as it indicated that the "mass of rock" was 

not in danger of falling and that attempts were made to scale it 

back. This can only refer to the rocks in question, as there is no 

evidence that any large loose rocks we~e on the highwall. 

According to Cliff, the conditions herein were blown down 

approximately 2 weeks after the citation was written. Further, 

pictures indicating the location of the rocks in question were taken 

by Petitioner 4 or 5 days after the Citation was issued. Thus, any 

ambiguity with regard to the location of the Complainant of 

conditions could here been ascertained with certainty by way of 

pretrial discovery. (I have examined these pictures and conclude 

that GX 2 and GX 3, provide a depiction of the relative size of the 

rocks in question compared to the two men in the pictures). 

Respondent asserts, in essence, that inasmuch as, when it was 

cited, it had no notice of the correct location of the rocks in 

question, it lost its right to a defense as it was unable to get 

" ••• information, tests, measurements, or the like regarding the 

muck pile." (Respondent's Memorandum of Law, Page 6). Respondent 

has not indicated with any specificity the information or tests it 

would have taken, and how these would have related to its defense. 

Indeed, I find Respondent's witnesses provided their opinion with 

regard to the lack of hazard from rocks in the muck pile. 

James Cliff, Respondent's Manager, testified that he looked 

at the face approximately 7:15 on May 29, 1987, and that when 

viewing the face, there was "some large.rock" and "loose and 

fractured rock on top of the highwall," ·(Tr. 124, 125), but that he 

did not feel there was any danger, and that it did not appear that 

the material will slide out. He was asked whether in his opinion 

anyone was in danger, and he testified that he did not feel so "at 

that particular time," (Tr. 126), and that his opinion has not 

changed. Barry D. Lutz, Respondent's Driller, who was working on 

the highwall on May 29, 1987, provided his opinion that there was 

no danger of any rock falling on the shovel, and that no one was in 

danger from any condition. Also, Gower, when asked on directexamination whether it appeared that the loose fractured rock on 

the muck pile could slide out, stated "not out of the ordinary." 

(Tr. 140) He indicated that there was no indication of instability 

which would have dislodged the rock. Gower also indicated on 

direct-examination that he did not tell Carter that he was fearful 

that a rock would fall and did not say that he fert endangered. 

Gower stated that Carter told him that he (Gower) was in danger, 

but he Gower did not tell Carter he felt endangered. However, I 

note that on cross-examination, when asked whether he told Carter 

he was watching the rocks above him, Gower testified that he did 

not recall that specific statement and "couldn't you tell exactly 

what was said." (Tr. 147) 

Further, in support of its contention that the material 

observed by Carter was not in any danger of sliding down, 

Respondent refers to testimony, indicatin~ that on May 29, 1987, 

1302 
a crane fell off the highwall and ran over the boulder observed 

by Carter without dislodging it. (The testimony was in conflict 

between Carter and Lutz, with regard to the path taken by the 

crane falling off the highwall. I have adopted the version 

testified to by Lutz as he, not Carter, actually observed this 

mishap). Carter in cross-examination, agreed that this provides 

an indication that the boulder in question would not slide. 

I find the opinion of Carter and Moyer with regard to the 

danger posed by the material in question to be credible, inasmuch 

as it appears likely that continued shoveling 1/ would have 

deprived the material of its support and hence-it would have 

fallen down. 2/ In contrast, neither Cliff, nor Lutz, nor Gower 

provided any basis to support their opinion that the material in 

question was not in danger of falling. Also, I note that 

although the falling crane did not dislodge the material in 

question, this does not negate the opinion of Carter and Moyer 

that continued digging by the shovel operator would have deprived 

the material in question of support, thus causing it to slide or 

fall. Therefore, based upon all the above, I conclude that the 

conditions observed by Carter, as testified to, created a hazard 

to persons within the purview of Section 56.3200, supra, and 

hence, this section has been violated. 

In the opinion of Carter and Moyer, continued shoveling 

below the cited material would cause it to fall and that the 

shovel operator and truck driver working in the area would be 

exposed to the danger of being hit with falling material. Carter 

and Moyer further testified, in essence, that there was a 

reasonable likelihood of a serious injury or a fatality should 

the cited material fall. I do not find any significant evidence 

of record to contradict the opinions of Moyer and Carter, that 

there was a reasonable likelihood that the hazard of the 

materials sliding down the muck wall would result in an injury of 

reasonably serious nature. 

!/ The transcript reference cited by Respondent on pages 8 and 

10 of its Memorandum of Law do not support the proposition that 

Resoondent had no intention to under1nine the cited material. 

Ind~ed Cliff indicated he agreed it was his inten"tion to remove 

as much of the muck pile as possible prior to shooting the top of 

the pile down (Tr. 134). Also, Gower indicated that he was 

planning on digging in the muck pile in an area that is depicted 

as below the material in question (Tr. 145, GX 4). 

2/ I accepted Carter's opinion that with further digging underneath the material in question could fall down, as it is based on 

the laws of gravity. It thus is irrelevant that he is not a 

geologist, nor licensed blaster, nor has experience in the 

reduction of a mountain. 

1303 
Although Respondent's witnesses essentially indicated that 

generally a muck pile contains loose fractured rock, the material 

in question, as depicted. in GX-2, GX-3, and GX-6, posed a hazard 

due to their.size, particularly in relation to the other material 

in the muck pile. As discussed, infra, I have concluded that 

with continued digging by the shovel operator, there was a 

distinct hazard of the cited material coming loose· and falling 

down the slope. I adopt the version testified to by Carter, due 

to observations of his demeanor, and conclude, that Gower, the 

shovel operator, was working under the overhanging cited material 

in very close proximity to the face. Also present in the area, 

at intervals of approximately 3 to 4 minutes, was a truck driver. 

I conclude that with continued digging as planned, that there was 

a reasonable likelihood of the cited rocks falling and resulting 

in an injury of a reasonably serious nature. 

For the above reasons, I conclude that the gravity of the 

violation herein was relatively high. Further, Cliff had 

indicated essentially that approximately 7 to 7:15 on the morning 

of May 29, 1987, he inspected the face of the highwall. Gower 

indicated on cross-examination that when he started to dig at 

7:00 in the morning he inspected the top.of the highwall. Carter 

testified that Gower told him that he was aware of the materials 

cited by Carter. I find this testimony not to have been rebutted 

by Gower who indicated on cross-examination that he could not 

recall exactly what was said between him and Carter. Thus, I 

find that Respondent was aware of the condition cited by Carter, 

and should have been aware of the hazards posed by these conditions as testified to by Carter and Moyer. I thus find that 

Respondent exhibited negligence to a relatively high degree. I 

have also considered the other factors contained in section llOCi) 

of the Federal Mine Safety and Health Act of 1977, as stipulated to 

by the Parties. Based upon all of the above, I conclude that a 

penalty of $1,000, as proposed, is propei for the violation herein. 

ORDER 

It is ORDERED that the Respondent pay the sum of $1,000, 

within 30 days of this Decision, as a Civil Penalty for the violation found herein. 

~~ Avram Weisberger 

Administrative Law Judge 

1304 
Distribution: 

James E. Culp, Esq., Office of the Solicitor, u. s. Department of 

Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

John T. Kalita, Jr., Esq., Eureka Stone Quarry, Inc., 9119 

Frankford Avenue, Philadelphia, PA 19114 (Certified Mail) 

dcp 

1305 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

INDUSTRIAL CONSTRUCTORS 

CORPORATION, 

Respondent 

COLONNADE CENTER 

ROOM ?80. 1244 SPEER BOULEVARD 

DENVER CO 80204 

SEP 261988 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 87-206-M 

A.C. No. 05-03998-05506 NYO 

Summitville Mine 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Mr. James A. Brouelette, Industrial Constructors 

Corporation, Missoula, Montana, 

pro se. 

Before: Judge Cetti 

Statement of the Case 

This civil penalty proceeding arises under the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. Section 801 et seq., 

(Mine Act). The Secretary of Labor on behalf of the Mine Safety 

and Health Administration, charges the respondent, Industrial 

Constructors Corporation (ICC), the operator of the Summitville 

Mine with the violation of 30 C.F.R. § 56.4402 a mandatpry safety 

standard promulgated by the Secretary of. Labor. 

The proceeding was initiated by the Secretary with the 

filing of a proposal for assessment of civil penalty. The 

operator filed a timely appeal contesting the existence of the 

alleged violation and the amount of the proposed civil penalty. 

An evidentiary hearing was held on these.issues at Denver, 

Colorado. Oral and documentary evidence was presented and the 

matter submitted for decision. The parties waived filing of 

briefs. 

REVIEW OF EVIDENCE AND FINDINGS 

This Summitville Mine is an open pit,,heap leach gold mining 

operation located in Summitville, Rio Grande County, Colorado. 

The mine was owned by Summitville Consolidated Mining company 

1306 
Inc. Industrial Constructors Corporation (ICC) was under 

contract to complete the mining phase. · 

Approximately 325 employees worked two-eleven hour shifts, 

seven days a week performing the mining tasks and three eight 

hour shifts, seven days a week milling. 

During the early morning hours of September 5, 1986, at 

approximately .2 a.m. an accident, involving an explosion and 

fire, occurred at the bulk fuel storage tank area of the mine. 

The accident resulted in serious injury to the driver of ICC's 

fuel tank truck and injury to another miner who came to the truck 

driver's assistance. 

At the time of the accident the driver was replenishing the 

supply of diesel in the large supply tank of his fuel tanker 

truck. He was using a Honda draft pump, driven by a 5 h.p. 

internal combustion gasoline engine, to pump the diesel fuel from 

one of the large storage tanks into the 3,000 gallon capacity 

tank of the fuel truck. Suddenly there was an explosive fire 

which engulfed the driver causing serious injuries. 

MSHA investigated the accident. The preliminary investigation started September 5, 1986. It commenced its on-site 

investigation about noon Monday September 8, 1986 and completed 

it on September 10, 1986. Its primary concern was to determine 

the ignition source of the fire. MSHA concluded in its 

investigation report that the ignition source of the fire could 

not be determined. 

At the hearing MSHA Inspector Simpson testified that even 

though they could not determine the ignition source of the fire 

they did establish that the fire started around the gasoline 

powered Honda pump while it was being used to pump diesel from 

the storage tank into the supply tank of the fuel truck. 

When the MSHA investigators first saw the Honda pump on 

September 8, 1986 it was in a wheelbarrow used to move it from 

tank to tank and it was located underneath a box-like protective 

cover approximately 20 feet from where the pump was in use when 

the fire broke out. The pump had been taken out of service, 

"tagged" and placed underneath the cover to protect it from the 

elements. Respondent had "tagged it out", shortly after the 

accident. 

When MSHA commenced its on-site inspection on September 8th 

it took a photograph of the pump. This photograph, Exhibit P-4, 

shows the engine of the pump as it appeared when first observed 

by the MSHA investigators. They noticed that the pump's engine 

did not have the manufacturer's control switch. There was just 

an open box-like area where the manufacturer's control switch 

would normally be located. MSHA investigators looked but were 

1307 
unable to find any other "on/off" switch. MSHA Inspector Simpson 

stated this lack of switch was unusual. He testified that where 

there was no "on/off" switch on an engine such as this the normal 

procedure for shutting off the engine would be to either pull a 

spark plug wire or possibly "flood out", the engine. It was later 

determined that the engine had been turned on and off by the use 

of a toggle switch. It is undisputed that sometime after the 

Friday morning September 5th accident and before the commencement 

of the on site investigation on Monday September 8th, that some 

unknown person had removed this toggle switch from the engine of 

the Honda pump • 

This alteration of the accident scene was determined through 

the use of a photograph taken and provided by ICC's management. 

The photograph was taken by ICC's project superintendent on 

September 6th the day after the accident. The negative was given 

to MSHA by ICC's safety director on September 22nd but was not 

developed by MSHA until the first part of October. A comparison 

of that photograph, Exhibit P-3, with the photograph taken by 

MSHA when it commenced its on-site inspection (Exhibit P-4) 

plainly shows a toggle switch that was not present at the time 

the on-site inspection commenced. 

On November 12, 1986 MSHA issued its Section 104(a) Citation 

No. 2638787 charging ICC with a violation of 30 C.F.R. § 50.12. 

The citation reads as follows: 

On September 5, 1986 an accident occurred at the Summitville 

Mine. The accident scene was altered, by removing a toggle 

switch on the Honda Engine involved in the accident. Photographs taken by the company after the accident show this 

switch. The switch was missing from the Honda engine prior 

to an on-site investigation by MSHA. This action by the 

company is in direct violation of 103(j) of the Act. The 

switch in question could possibly have direct bearing on 

the possible cause of this accident. 

30 C.F.R. 50.12 provides as follows:' 

Unless granted permission by a MSHA District Manager or 

Subdistrict Manager, no operator may alter an accident site 

or an accident related area until completion of all investigations pertaining to the accident except to the extent 

necessary to rescue or recover an individual, prevent or 

eliminate an imminent danger, or prevent destruction of 

mining equipment. 

Stipulations 

1. Industrial Constructors Corp., respondent, is the 

operator of the Summitville Mine located at Rio Grande County, 

Colorado. 

1308 
2. The operations and products of the mine affect commerce, 

its products enter commerce and accordingly, the mine and its 

operators are subject to the provisions of the Act. 

3. The undersigned ALJ has jurisdiction to hear and decide 

this case. 

4. Respondent is a large operator that employed approximately 200 people at this mine site at the time of the alleged 

violation and overall employed approximately 700 people. 

5. This is the first citation issued to this operator for 

allegedly altering an accident site. 

Respondent presented evidence that its management fully 

cooperated in MSHA's investigation of the accident. In addition, 

the operator had outside professionals (Rampart Investigators 

Inc.} conducted a "cause and origin investigation" regarding 

theSeptember fire and explosion. Rampart's investigators 

reportedthat a cigarette butt was found in the immediate area and 

that this butt was the same brand of cigarettes the victim 

Ctruckdriver) had on his person at the time of the accident. 

Rampartinvestigation Inc. concluded that the probable source of 

ignition was the discarding of the cigarette butt into the 

gasoline fumes or spilled gasoline on the ground next to the 

tanker truck. 

Discussion and Further Findings 

Irrespective of the cause of the accident the evidence 

establishes that the accident scene was altered by the removal of 

a toggle switch from the Honda gasoline engine that powered 

thepump involved in the accident. In addition, the undisputed 

testimony of the MSHA mine inspector established the fact that 

this alteration of the accident scene hampered the investigation. 

No evidence was presented as to who removed the toggle 

switch from the Honda engine. A comparison of the two 

photographs Exhibit P-3 and Exhibit P-4 clearly shows that the 

toggle switch was removed from the Honda engine between the time 

of the accident occurred on September 5th and the time MSHA 

commenced its on-site inspection on September 8th. During that 

time the Honda engine was under the control of ICC in a secured 

area of the mine site approximately 200 yards south of the main 

guard house. Approximately 200 employees had access to the Honda 

engine at that site. 

Evidence was presented that before the accident the original 

design of the Honda engine had been modified by wiring in the 

1309 
toggle switch. The MSHA inspector testified that that this was a 

very unsafe modification. From the evidence presented and the 

facts established and the reasonable inferences that can be drawn 

from them, 1t is found that the accide~t scene was altered by an 

employee or someone under the control of the respondent. 

Respondent was responsible for taking the measures needed to 

prevent this deliberate alteration of the accident scene. I find 

that respondent was negligent in its failure to prevent the 

alteration before MSHA commenced its on-site investigation. 

Respondent argued that it had in effect preserved the 

evidence by taking the photograph of the Honda engine that shows 

the toggle switch. It points to the fact that its project 

superintendent took the photograph of the Honda engine the day 

after the accident and (22 days later) it gave the negative to 

MSHA. The photograph clearly shows the toggle switch dangling 

along side the engine with open contacts where the terminal wires 

were attached. This contention that the photograph preserved the 

evidence must be rejected in view of the undisputed testimony of 

MSHA's investigator that the removal of the toggle switch 

hampered the investigation. It is found that the accident scene 

was altered before MSHA could complete its investigation and that 

this was a violation of 30 C.F.R. § 50.12. 

PENALTY 

With respect to the penalty for Citation No. 2638787 the 

Mine Safety and Health Administration under 30 C.F.R. § 100.5 

elected to waive the regular assessment formula and decided to 

make a special assessment in accordance with 30 C.F.R. § 100.5. 

In its narrative findings for a special assessment MSHA found 

that the gravity of the violation was "non-serious", that the 

violation resulted from the operator's negligence, and that the 

violation was abated within a reasonable period of time. The 

special assessment report concluded with a statement that "based 

on the six criteria set forth in 30 C.F.R. § 100.3(a) and the 

information available to the Office of Assessments, it is 

proposed that the Industrial Constructors Corporation be assessed 

a civil penalty of $250.00." 

I agree with the finding in the narrative report of MSHA's 

Office of Assessments that the gravity of the violation was non 

serious. I also find the violation resulted from the operator's 

negligence which I evaluate as low under' the facts and circumstances of this case. Arguably it is only with hindsight that 

respondent would have reason to suspect that someone would alter 

the accident scene. 

At the hearing Petitioner argued that the alteration was a 

"purposeful" alteration and that the penalty for the violation 

should be $5,000. I have determined that. the penalty should be 

1310 
more than the $250 initially proposed by MSHA. The violation 

could contribute to another fire or explosion. Complete accident 

investigations are necessary to determine the cause of an 

accident so corrective action can be taken to prevent another 

occurrence. However, in view of my findings on gravity and 

negligence ~nd on the undisputed testimony that Respondent's top 

management fully cooperated in the investigation to determine the 

cause of the accident, a $5,000 penalty would be excessive. 

Based on carefully consideration of the entire record and the six 

criteria set forth in 30 C.F.R. § 100.3Ca>, I find that the 

appropriate civil penalty in this case for the violation of 30 

C.F.R. § 50.12 as alleged in Citation No. 2638787 is $500.00. 

Citation No. 2638556 

Respondent moved to withdraw its contest of Citation No. 

2638556 which alleges a violation of 30 C.F.R. § 56.4402 and 

agreed to pay the $46.00 proposed penalty. The motion is granted 

and the $46.00 proposed penalty is approved. 

Conclusions of Law 

Based upon the entire record and the findings made in the 

narrative portion of this decision, the following conclusions of 

law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. The respondent violated the provisions of 30 C.F.R. 

§ 56.4402, a mandatory safety standard. 

3. The appropriate penalty for this violation is $500.00. 

4. The appropriate penalty for the violation of 30 C.F.R. 

§ 56.4402, alleged in Citation No. 2638556, is $46.00. 

ORDER 

Citation Nos. 2638556 and 2638787 are affirmed and 

Industrial Constructors Corporation is ordered to pay civil 

penalties totaling $546.00 within 30 days of the date of this 

decision. 

t F. Cetti 

nistrative Law Judge 

1311 
Distribution: 

James H. Barkley, Esq., Office of the Solicit"er, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Mr. James A. Brouelette, Industrial Constructors Corporation, 101 

International Way, Missoula, MT 59802 (Certified Mail) 

/bls 

1312 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 271988 

ROCHESTER & PITTSBURGH COAL CO.,: CONTEST PROCEEDING 

Contestant : 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

. . 

. . 

Docket No. PENN 88-194-R 

Citation No. 2879240; 4/21/88 

Greenwich Collieries 

No. 2 Mine 

Mine ID 36-02404 

DECISION 

Appearances: Linda M. Henry, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, PA, for 

Respondent; 

Joseph A. Yuhas, Esq., Rochester & Pittsburgh 

Coal Company, Ebensburg, PA, for Contestant. 

Before: Judge Fauver 

In this proceeding under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et~' Rochester & Pittsburgh Coal 

Company seeks to vacate a citation and the Secretary seeks a 

civil penalty for the violation cited. The parties stipulated at 

the hearing that the Secretary's petition for a civil penalty may 

be adjudicated in this proceeding. 

Based upon the hearing evidence and the record as a whole, I 

find that a preponderance of the substantial, reliable and 

probative evidence establishes the following: 

FINDINGS OF FACT 

1. Greenwich Collieries No. 2 Mine is operated and managed 

by Rochester & Pittsburgh Coal Company. 

2. In 1979, the Mine Safety and Health Administration 

(MSHA) of the United States Department of Labor notified Leonard 

Edwards, a miner at such mine, that his X-ray report was positive 

for pneumoconiosis. 

3. In April, 1985, due to a layoff at the mine, there was a 

realignment of the work force. Edwards, a shear operator, was 

scheduled to be transferred from Greenwich South Mine to 

Greenwich North Mine. He requested that he remain at the South 

Mine and was reclassified as a general laborer at the South Mine 

with a reduction in hourly pay from $14.41 to $13.31. When he 

1313 
learned of the pay reduction, Edwards pr,oduced the 1979 MSHA 

letter, and mine management restored his pay to $14.41 per hour. 

Both Edwards and mine management apparently asssumed that Edwards 

was a Part 90 {Title 30, C.F.R.) miner in April, 1985. 

4. However, Leonard Edwards did not exercise his Part 90 

option until March 1, 1988, when he signed a "Notice of E-xercise 

of Option" form and mailed it to MSHA. 

5. MSHA received Edwards' signed form on March 3, and 

notified Rochester & Pittsburgh Coal Company of ~dwards' status 

as a Part 90 miner in a letter ~eceived by_the company on March 

14. The letter stated, inter alia: "This letter is to inform 

you that the miner named above has exercised the option" and that 

"Part 90 requires that each Part 90 miner be compensated at not 

less than the regular ra~e of pay received by that miner 

immediately before exercising his or her option, or if ever 

transferred, at not less than the regular rate of pay immediately 

before the transfer." 

6. At least as early as December, 1987, mine management 

knew that Edwards had not yet exercised his option. as a Part 90 

miner. 

7. Edwards received MSHA's notification of his Part 90 

status on March 12 and on March 14, his next work day, he told 

his foreman that he was exercising his option to work in a less 

dusty part of the mine. His foreman told him that his wages 

would probably be reduced if he transferred to a less dusty area. 

Edwards transferred March 14 and on March 15 his pay rate was 

reduced from $15.81 to $14.78 per hour. 

8. After investigating Edwards' comptaint of a pay 

reduction, MSHA issued Citation No. 2879240 on April 21, 1988. 

DISCUSSION WITH FURTHER FINDINGS 

Edwards exercised his option under Part 90, 30 C.F.R. on 

March 1, 1988, by mailing a signed "Notice of Exercise of Option" 

form to MSHA. MSHA acknowledged his status as a Part 90 miner by 

a notification letter received by Rochcester & Pittsburgh Coal 

Company on March 14 and received by Edward~ on March 12. 

On March 14, Edwards told his foreman that he was exercising 

his option to work in a less dusty part of the mine. His foreman 

told him that his wages would probably be cut if he transferred 

to a less dusty area. Edwards transferred_ to a less dusty area 

on March 14 and his wages were cut the next day, from $15.81 to 

$14.78 an hour. 

His pay rate immediately before he mailed the Exercise of 

Option form on March 1, 1988, was $15.81 an' hour and he was 

1314 
receiving that rate the day (March 14) he told his foreman he was 

exercising his option to work in a less dusty area. 

Rochester & Pittsburgh Coal Company defends Edwards' pay cut 

on the ground that it was done to correct a pay error made back 

in April, 1985. It offered some testimony that the decision to 

cut his pay to $14.78 an hour was made "on the 10th or 11th of 

March" in 1988 (Tr. 115). 

Section 90.3 of the regulations provides: 

(a) Any miner employed at an underground coal mine or at a 

surface work area of an underground coal mine who, in the 

judgment of the Secretary of Health and Human Services, has 

evidence of the development of pneumoconiosis based on a 

chest X-ray, read and classified in the manner prescribed by 

the Secretary of Health and Human Services, or based on 

other medical examinations shall be afforded the option to 

work in an area of a mine where the average concentration of 

respirable dust in the mine atmosphere during each shift to 

which that miner is exposed is continously maintained at or 

below 1.0 milligrams per cubic meter of air. Each of these 

miners shall be notified in writing of eligibility to 

exercise the option. 

* * * 

(d) The option to work in a low dust area of the mine may be 

exercised for the first time by. any miner * * * by signing 

and dating the Exercise of Option Form and mailing the form 

to the Chief, Division of Health, Coal Mine Safety and 

Health, 4015 Wilson Boulevard, Arlington, Virginia 22203. 

(e) The option to work in a low dust area of the mine may be 

re-exercised by any miner * * * by sending a written 

request to the Chief, Division of Health, Coal Mine Safety 

and Health, MSHA, 4015 Wilson Boulevard, Arlington, Virginia 

22203. The request should include the name and address of 

the mine and operator where the miner is employed. 

Cf) No operator shall require from a miner a copy of the 

medical information received from the Secretary or Secretary 

of Health and Human Services. 

Section 90.103(a) provides: 

(a) The operator shall compensate each Part 90 miner at not 

less than the regular rate of pay received by that miner 

immediately before exercising the option under § 90.3 (Part 

90 option; notice of eligibility; exercise of option). 

Section 90.2 defines a "Part 90 miner" as "a miner •.. who 

has exercised the option under .•• § 90.3 •.•• " 

1315 
In Matola v. Consolidation Coal co:, 647 F.2d 427,430 (4th 

Cir. 1981), the court held that "the reg~lar rate of pay is the 

dollar rate ~- the rate at which the miner was actually 

remunerated for the work he did -- irrespective of his job 

classification." In Mullins v. Andrus, 664 F.2d 297,305,310 

{0.C. Cir. 1980), the court rejected an interpretation that "a 

transferring miner is entitled to receive the rate of pay to 

which he had a right immediately prior to transfer" and held that 

"the phrase 'regular rate of pay' ••• means the rate at which the 

transferring miner was actually and regularly compensated when 

the transfer occurred." 

I hold that~ when a miner becomes a Part 90 miner the 

operator may not go back several years from that date to 

change the miner's pay rate to one the operator decides the miner 

"should have been" receiving immediately before he became a Part 

90 miner. To permit such retroactive changes would have a 

chilling effect on the exercise of Part 90 rights. Rochester & 

Pittsburgh Coal Company is bound by the pay rate that Leonard 

Edwards was actually and regularly receiving immediately before 

his exercise of the Part 90 option. · 

Rochester & Pittsburgh Coal Company contends that Edwards 

did not become a Part 90 miner until the company received MSHA's 

notice of his exercise of the Part 90 option, on March 14. 

However, the regulations, § 90.3{d), provide that "the option to 

work in a low dust area of the mine may be exercised for the 

first time ••• by signing and dating the Exercise of Option Form 

and 1nailing the form [to MSHA]." Edwards signed and mailed the 

required form on March 1, 1988. It was received by MSHA on 

March 3. He became a Part 90 miner on March 1, 1988, and 

effective that date he was protected against a reduction of the 

pay rate he was regularly receiving immediately before 

March 1. 

Thus, for the purpose of determining when a Part 90 miner's 

pay rate becomes protected against reduction, the effective date 

is the date the miner mails a signed "Exercise of Option" form to 

MSHA under§ 90.3{d). However, for the different purpose of 

determining when liability for a civil penalty occurs, I hold 

that a violation subject to a civil penalty can occur only after 

the operator receives notice that the min~r is a Part 90 miner. 

If an operator reduces a miner's pay rate~fter the miner becomes 

a Part 90 miner but before the operator receives MSHA's notice of 

the miner's Part 90 status, the operator has a reasonable 

opportunity to revoke the pay cut and restore the pay to the rate 

the miner had been receiving immediately before exercising the 

Part 90 option. Failure to restore the miner's pay to the 

correct rate aftar receiving MHSA's notice· of the Part 90 status 

would be a constructive pay cut in violation of § 90.103{a) and 

subject to a civil penalty. 

1316 
In this case, the pay cut was direct, and not constructive. 

Rochester.& Pittsburgh Coal Company received MHSA's notice of 

Edwards' Part 90 status on March 14, 1988. It violated 

§ 90.103(a) by reducing his pay rate on March 15. 

Considering the criteria for a civil penalty in§ llO(i) of 

the Act, I find that the Secretary's proposed civil penalty of 

$78 for this violation is appropriate. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over these proceedings. 

2. Rochester & Pittsburgh Coal Company violated 30 C.F.R. 

§ 90.103(a) as alleged in Citation No. 2879240. 

3. Leonard Edwards is entitled to be restored to the pay 

rate he received immediately before his exercise of the Part 90 

option on March 1, 1988, plus any pay increases he would have 

received thereafter in the employment, and to receive back pay 

(the difference between the pay rate he received and the rate he 

should have been paid) retroactive to March 15, 1988, with 

interest at the rate or rates published by the Internal Revenue 

Service for the period involved. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Citation No. 2879240 is AFFIRMED. 

2. Rochester & Pittsburgh Coal Company shall pay a civil 

penalty or $78 within 30 days of this Decision. 

Distribution: 

a)~ ::;-M4¥~ William Fauver 

Administrative Law Judge 

Joseph A. Yuhas, Esq., ~ochester & Pittsburgh Coal Co., Greenwich 

Collieries No. 2 Mine, P.O. Box 367, Ebensburg, PA 15931 

(Certified Mail) 

Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of 

Labor, 14480 Gateway Building, 3535 MarKet Street, Philadelphia, 

PA 19104 (Certified Mail) 

1317 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 291988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION C MSHA) , 

ON BEHALF OF 

DONALD J. ROBINETTE, 

Complainant 

v. 

BILL BRANCH COAL COMPANY, 

INC., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF JOEY F. HALE, 

Complainant 

v. 

BILL BRANCH COAL COMPANY, 

INC., 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. VA 87-21-D 

NORT CD 87-5 

Mine No. 8 

DISCRIMINATION PROCEEDING 

Docket No. VA 87-22-D 

NORT CD 87-7 

Mine No. 8 

DECISION 

Appearances: Patricia L. Larkin, Esq., Office of the Solicitor, 

u. S. Department of Labor, Arlington, Virginia, for 

the Secretaryi 

Robert J. Breimann, Esq., Street, Street, Street, 

Scott & Bowman, Grundy, Virginia, for the 

Complainants. 

Before: Judge Weisberger 

Statement of the Case 

On May 20, 1987, the Secretary, on behalf Donald J. Robinette 

and Joey F. Hale, filed a Complaint alleging violations of 

§ lOSCc>Cl) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 815(c)(l). Respondent filed its Answer on August 20, 

1987. On August 28, 1987, an Order was issued consolidating 

Docket Nos. VA 87-21-D and VA 87-22-D and setting these cases for 

hearing in Kingsport, Tennessee, on December 1, 1987. On 

October 28, 1987, Complainants requested a continuance of the 

1318 
scheduled Hearing as one of their perspective witnesses had 

recently undergone surgery, and the request for continuance was 

not opposed. On September 2, 1987, Complainants filed a Motion 

for Leave to file an Amended Complaint and this Motion was not 

opposed. An Order was entered on September 10, 1987, granting 

this Motion. 

A Hearing was subsequently rescheduled for January 26 - 27, 

1988, in Kingsport, Tennessee. Due to the unavailability of a 

MSHA Inspector for deposition, the Hearing scheduled for 

January 26 - 27, was rescheduled for February 29, and March 1, 

1988, in Kingsport, Tennessee. On February 24, 1988, Respondent, 

in a telephone call to the undersigned, made a request to compel 

Petitioner to produce names of certain witnesses pursuant to a 

written interrogatory. In response to this request on 

February 24, 1988, a telephone conference call was arranged by 

the undersigned with the attorneys for both Parties. In this 

conference call the hearing previously set for February 29 and 

March 1 was adjourned, and the Parties were requested to file 

Memoranda setting forth their position on the issues raised by 

Respondent's request. Memoranda were filed on March 7, 1988. On 

March 10, 1988, an Order was entered requiring Petitioner to 

serve upon Respondent the names, addresses, and telephone numbers 

of all witnesses who are not miners, and to file with the 

undersigned a statement to be examined in camera containing names 

of witnesses who are alleged to be informers, and a statement 

setting forth any facts relied upon to establish the informer's 

privilege for each of the witnesses alleged to be informers. On 

May 2, 1988, an Order was issued, that having examined the statements in camera, the witnesses listed therein were declared to be 

informers within the preview of 29 C.F.R. § 2700.59. 

Pursuant to notice, the case was rescheduled and heard in 

Johnson City, Tennessee, on May 10 - 12. At the hearing, Donald 

Joe Robinette, Gary Compton, Fred L. Howery, Franklin Dallas 

Perkins, Donald James Morris, Junior Vidis Price, Joey Fred Hale, 

Donald Cook, John Kyle Griffith, and Russell Wayne Reynolds 

testified for the Complainants. Rexley Ray, Ivan Leon Vandyke, 

Charles Lee Boyd, and Doris Allen Nickels testified for the 

Respondent. At the conclusion of the Complainant's case, 

Respondent made a Motion to strike the Secretary's case and 

dismiss the Complaints. After oral argument, this Motion was 

denied. 

At the conclusion of testimony on May 12, Respondent 

requested that the Hearing be adjourned and be rescheduled to 

allow it to present two additional witnesses. The case was 

subsequently rescheduled for July 13, 1988, in Johnson City, 

Tennessee. At the commencement of the rescheduled hearing on 

July 13, 1988, Respondent indicated that it had not been able to 

locate one of its witnesses, Gary Compton, and it had decided not 

to call any other witnesses. 

1319 
Proposed Findings of Fact and Memorandum of Law were filed 

on August 12, 1988, by Complainants, and· by Respondent on 

August 15, 1988. A Reply Brief was filed on September 12, 1988, 

by Respondent; none was filed by Complainants. 

Issues 

1. Whether the Complainants have established that they 

were engaged in an activity protected by the Act. 

2. If so, whether the Complainants suffered adverse 

action as the result of the protected activity. 

3. If so, to what relief are they entitled. 

DONALD JOE ROBINETTE 

In evaluating the evidence presented herein, I have been 

guided by the Commission's recent decision. The Commission, 

in a recent decision, Goff v. Youghiogheriy & Ohio Coal 

Company, 8 FMSHRC 1860 (December 1986), which reiterated the 

legal standards to be applied in a case where a miner has 

alleged acts of discrimination. The Commission, Goff, supra, 

at 1863, stated as follows: ~~ 

A complaining miner establishes a prima facie case of 

prohibited discrimination under the Mine Act by proving 

that he engaged in protected activity and that the 

adverse action complained of was motivated in any part 

by that activity. Pasula, 2 FMSHRC at 2797-2800; 

Secretary on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 803, 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. See also 

Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 

CD.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 

(6th Cir. 1983) (specifically approving the 

Commission's Fasula-Robinette test). 

Protected Activity 

Donald Joe Robinette, a coal miner with 23 years experience, 

worked for Respondent in 1984, until he was laid off in that 

year, and then was rehired in July or August 1986. Robinette 

testified that, at various times, he spoke with his foreman at 

the time, Russell Wayne Reynolds, about "improving the ventilation" and asked him to speak to the Superintendent, c. L. Boyd, 

1320 
about this matter. (Tr. Vol 1, P. 91). He also said that, on 

one occasion, between a few days and 3 weeks prior to the time he 

was fired, November 21, 1986, he asked Boyd for a curtain to get 

more air on the section. In contrast, Boyd indicated that 

Robinette never registered a complaint with him with regard to 

air or ventilation, nor did Robinette communicate the same 

through any other person. Boyd, in general, indicated that he 

did not receive complaints from any miners with regard to 

insufficient air. He also said that in February 1986, the 

brattice was repaired and the air in the section was then measured at 12,000 cubic feet, which exceeded the federally mandated 

minimum of 9000 cubic feet. Boyd also said that a larger fan was 

installed in March 1986, and that subsequent air readings 

indicated air movement of 26,000 cubic feet. 

In reconciling the conflict between Robinette and Boyd, I 

have concluded, based upon my observations of the witnesses' 

demeanor, that Robinette was truthful and that he did indeed ask 

Boyd on one occasion for a curtain to get more air on the section. 

Also, Reynolds corroborated Robinette's testimony that Robinette 

and other men complained to him about the air on the section. I 

therefore conclude that Robinette did voice complaints to 

Reynolds about the air on the section, and did request a curtain 

from Boyd to get more air on the section. I further find these 

activities of Robinette to be protected within the purview of the 

Federal Mine Safety and Health Act of 1977. 

Motivation 

Gary Compton, who was the foreman of the section on which 

Robinette worked on November 21, 1986, testified that on that 

date he worked overtime along with two roof bolters. He said 

that while traveling on the scoop he hit a drill which was parked 

inby behind a curtain and that the drill did not have its lights 

on. Compton, in essence, said that it was not proper for 

Robinette to have left the drill behind the curtain with its 

lights off, and it was also contrary to Respondent's policy. 

Compton said that after he hit the drill he called Respondent's 

Superintendent, Boyd, and told him that he had " ••. no further use 

for Mr. Robinette on the coal drill." <Tr. Vol 1, P. 161). Boyd 

indicated that Compton told him (Boyd) that as far as he 

(Compton) was concerned, Robinette was fired if Boyd "did not 

have any thing else for Donald Robinette to do at the mine." CTr. 

Vol III, P. 43). Boyd further said, in essence, that Compton 

told him that Robinette was fired because Robinette had parked 

his drill behind the fly curtain and Compton ran into it. Boyd 

also said that Robinette was caught sleeping 2 to 3 days prior to 

November 21. 

Boyd, who had the authority to fire, indicated that when 

Robinette came outside, he told Robinette that he did not have 

1321 
any thing else for him to do and that he would have to fire him. 

Boyd said that Robinette got angry, and he (Boyd) asked Robinette 

to wait outside and he said to Robinette "we'll work it out." 

(Tr. Vol rII, P. 44). Boyd said that Robinette waited approximately 10 minutes and then left. When questioned by Respondent's 

attorney, Boyd agreed that there were no other reasons for 

Robinette's termination other than what he previously stated, and 

that it was not motivated by any other external factor. Boyd 

also testified that he never discussed with Compton the need to 

fire Robinette. 

In contrast, it was the testimony of Robinette that, when he 

left the section at the end of his regular shift, and prior to 

the commencement of the overtime shift, his drill was parked 

halfway under the curtain and the lights were on. Although the 

testimony of Rexley Ray appears to corroborate that of Compton, 

in that the former indicated that the Robinette's drill was 

pretty close to the curtain and there were no lights on, it is 

significant to note that Ray observed the drill only after the 

accident. In contrast, Robinette's testimony finds corroboration 

in the testimony of Joey Hale that the drill was parked in the 

middle of the curtain. I observed Hale and found, based upon his 

demeanor, that his testimony was truthful on this point. Also, 

Robinette's version finds some corroboration in the testimony of 

Donald J. Morris, a roof bolter, who worked overtime along with 

Compton on November 21, that prior to the accident, he saw light 

coming down the hallway one break back " ••• from something parked 

down there." (Tr. Vol I, P. 227). Accordingly, I adopt 

Robinette's version and find that at the end of his shift he had 

left the drill halfway through the curtain with its lights on. 

Russell Wayne Reynolds, who was Robinette's section boss 

when Robinette commenced working for Respondent in 1986, testified that 2 weeks prior to November 17, 1986, Boyd told him that 

Robinette had told Boyd that, in essence, if the section did not 

get more air that he, Robinette, " ••• would call somebody that 

could get it." (Tr. Vol II, P. 159). I find this testimony 

truthful, as it was not contradicted by Boyd who subsequently 

testified. l/ 

1/ Although Boyd stated, in essense, that Robinette did not 

complain to him about the air or ventilation, he did not specifically deny having told Reynolds, as- testified by Reynolds, that 

Robinette told him that if Boyd did not get more air Robinette 

would call someone who would. 

1322 
On November 17, 1986, a spot inspection was performed at 

Respondent'.s mine by MSHA Inspectors Franklin Dallas Perkins and 

Fred L. Howery. According to Howery, Cit was stipulated that if 

Perkins were to testify, the answers that he would give to 

questions on direct and cross-examination would be the same as 

Howery), he indicated, in essence, that upon serving a citation 

on Boyd, the latter asked if the MSHA Inspectors had been called 

to make the inspection. Howery, in essence, further testified 

that Boyd said that if the identity of the person who called the 

inspectors would be ascertained then that person would be fired. 

Reynolds said that a few days after the inspection on 

November 17, Boyd said he'd fire the one who called the 

inspectors. Boyd, however, said that no one ever told him that 

Robinette had called the inspectors and that he never threatened 

to fire an employee for calling the inspectors and never made 

such a statement. However, I find, based on observations of 

their demeanor, that Howery and Reynolds were truthful in 

testifying that Boyd had told them on separate occasions that 

the one who called the inspectors would be fired. Also, I note 

that Boyd did not specifically deny making those specific 

statements to Howery and Reynolds. Further, it was Robinette's 

uncontradicted testimony that Boyd asked him prior to 

November 21, 1986, if he had called the inspectors. (Tr. 82). 

Robinette also testified that Boyd said that he would find the one 

who called the inspectors and fire him. 

In addition, Griffith testified that sometime prior to 

November 17, 1986, Compton initiated a conversation and indicated 

that Robinette had called the MSHA Inspectors and that he 

(Compton) " ..• was going to get rid of him." (Tr. Vol II, P. 131). 

In this regard Reynolds also testified that on November 17, the day 

of the inspection, Compton said that he would fire the one who 

called the inspector. I find the testimony of Griffith and 

Reynolds to be truthful based upon observations of their demeanor, 

as well as the fact that their testimony in this regard has not 

been contradicted. It is further significant to note that 

Robinette's uncontradicted testimony was to the effect that Compton 

had asked him if he had called the inspectors. 

In addition, it was Robinette's testimony that on the Monday 

after he was fired, he asked Eugene Altizer Cone of Respondent's 

owners at the time) if he (Robinette) was fired because of anything he had done, and Altizer said that he did not know why 

Robinette was fired as Boyd had taken that action but " ... if it 

was because the inspectors had been called, that he would find 

out who called them if he had to fire every man on that section." 

(Tr. Vol I, P. 81). I find Robinette's testimony truthful in 

this regard based upon observations of his demeanor, the fact 

that his testimony was uncontradicted, and the fact it was 

corroborated by Hale, who was present when this conversation took 

place. 

1323 
The record contains further evidence bearing on Respondent 1 s 

motivation. In this connection, I note the testimony of Reynolds 

that in January 1987, Boyd accused him of having previously 

called the inspectors to Respondent's mine. Boyd disputed the 

details of this conversation, denied making such a statement and 

denied indicating that an employee would not be rehired if he 

called an inspector. I have resolved this conflict in testimony 

in favor of Reynolds based upon observations of the witnesses' 

demeanor. In the same fashion, it was Reynolds 1 testimony that 

Leon Vandyke, his present employer, told him that Dors McLaughlin, 

Respondent 1 s owner, and Boyd told him that he (Reynolds) had called 

the inspector to Respondent 1 s mine. 

Based upon a combination of the above testimony, I conclude 

that the firing of Robinette was motivated in "any part," by 

Respondent 0 s perception that Robinette had called mine inspectors 

to the mine. Further, I find, based upon an analysis of the 

above outlined evidence, that Respondent has neither shown that 

the adverse activity was not motivated in any part by the 

protected activity, nor has it established an affirmative 

dc~.fense. 

Hence, I conclude that Respondent did violate § 105CcJ of 

the Act as it did commit an act of discrimination against 

inette within the purview of § 105(c) of the Act. 

HALE 

otected 

Joey Hale, a miner employed by Respondent from October 1981 

to November 22, 1986, testified that he told Reynolds on one 

occasion that if proper ventilation was not provided, he would 

call the inspector. Bale also said that several times, 2 or 3 

v1eeks before he was fired, he complained to Boyd, in essence, 

t additional air was needed on the section. In contrast, Boyd 

essentially testified that he did not receive complaints from 

other employees about the air in the section, and that the 

E;ection boss did not tell him that he received any complaints. 

However, based upon observations of their demeanor, I find Hale's 

testimony more credible. I thus find that Hale engaged in 

protected activities in making complaints to Reynolds and Boyd 

with regard to proper ventilation. 

Moti ion 

According to Hale, on November 17, 1986, the date of the 

MSHA spot inspection, while he and Robinette were in the section, 

thought he saw Compton approaching. He then approached 

Robinette and asked him if they would have time "to shoot the 

place." (Tr. Vol II, P. 15). He said that he did not think that 

1324 
Robinette was asleep and he did not wake him. Robinette indicated 

that he was not asleep and stated that Compton asked him if he was 

going to wake up. Griffith testified that approximately during 

Compton's first or second week on the section, Compton initiated 

conversation and indicated that he was trying to catch Robinette 

asleep. 

Doris Allen Nickels, another miner on the section on 

November 17, indicated that he was approximately 5 feet away from 

Robinette during the above incident. He said that Bale did not 

try to wake Robinette before Compton arrived. It was his testi 

many, in essence, that when he observed a light approaching the 

section, Hale asked whether that was Compton and Nickels ind 

in the affirmative. Nickels said that Hale then hollered at 

Robinette 2 or 3 time and said ~oon, I believe there comes the 

boss,n (Tr. Vol III, P. 201), but that Robinette did not answer 

Nickels said that Hale then picked up some lumps of coal and threw 

them at Robinette who then raised himself up and put his light on. 

I find the version testified to by Nickels to be more credible. 

In reaching this conclusion, I note that neither Hale nor 

Robinette were recalled to of fer testimony in rebuttal to the 

specifics testified to by Nickels. According to Nickels, later 

the same evening, Compton asked him whether Robinette was asleep 

and whether he (Nickels) woke him up. Nickels said that he then 

proceed to tell Compton that Hale had hollered at Robinette saying 

~there comes the boss," (Tr. Vol III, P. 204), and threw rocks at 

him. The only significant evidence having any tendency to impeach 

the creditability of Nickels, was Hale's statement that on 

November 22, Nickels told him that Compton had told Nickels on the 

morning of November 22, ~he had better keep his mouth shut if he 

wants to keep his job • • • n (Tr. Vol II, P. 24). Nickels,· 

however, indicated that Compton had not made such a statement to 

him and he also denied having himself made such a statement to 

Hale. Even if Nickels was coerced into not stating certain facts, 

I can not infer that he was in any fashion coerced to fabricate 

what transpired on November 21. 

According to Hale on November 22, he was summoned to the 

mine office where Compton and Boyd were present. He said that 

Compton accused him of waking Robinette up and said that if Hale 

did not admit that he woke up Robinette he was fired. Hale said 

that he denied waking up Robinette, and Compton asked Boyd if he 

had any thing else that he wanted Hale to do and Boyd told Hale 

that he could go home. 

According to Boyd, Compton initially asked Hale why he woke 

Robinette up and Hale denied waking him up. However, according 

to Boyd, when Compton indicated that he had a witness, Hale said 

he did not mean to wake Robinette up and Compton told him~ ... 

that he no longer needed him or he was fired for interfering with 

his work." (Tr. Vol III, P. 50). Compton was, according to 

1325 
Respondent, unavailable for testimony on its behalf, and thus was 

unable to explain his specific reasons for firing Hale. In this 

connection, I find that Boyd is not competent to testify as to 

what Compton meant when he said he fired Hale "for interfering 

with his work." (Tr. Vol III, P. 50). I accordingly did not 

give any weight to his testimony in this regard. 

I find, as analyzed in the portion in this Decision dealing 

with the complaint of Donald Robinette, infra, that Boyd and 

Compton, Respondent's supervisors at the time, both indicated 

that the persons who called the inspectors would be fired. I 

also find, as analyzed above, infra, that a statement to the same 

effect was made by Altizer, one of Respondent's owners at the 

time. In this connection, I note that Hale testified that 

approximately 2 to 3 months prior to his discharge, he told 

Reynolds that if proper ventilation was not provided for he was 

going to call the inspectors. Also, approximately 2 to 3 months 

before his discharge, Hale was present in the house of Donald 

Cook, an employee miner of Respondent from April to July 1986, 

when a telephone call was made to a Lacey Horton, a State Mine 

Inspector. According to Cook, he (Cook) spoke with Horton 

regarding ventilation problems at Respondent's mine. According 

to Hale, he (Hale) spoke to Horton with regard to his rights 

working in smoke and dust. It is not necessary to reconcile this 

conflict in the testimony as it is clear, from the testimony of 

both Cook and Hale, that in the conversation with Horton, neither 

one either identified himself or the mine involved. However, 

significantly, Hale indicated that he discussed this conversation 

with several other miners. 

Also I note, that although Hale's actions on November 17, in 

waking up Robinette might have been part of the reason for his 

being fired, Respondent did not discipline him or talk to him 

about this incident until 5 days later, on November 22, which is 

1 day after Robinette had been fired. In this connection, I note 

that I concluded, infra, that Robinette's firing was motivated in 

part by Respondent's perception that he had called the inspectors. 

I conclude, based on the combination of all the above 

factors, that Hale established his prima facie case in establishing that his discharge was motivated "in any" part by 

management's retaliation against those suspected of having called 

the inspector, and that Respondent has neither rebutted this 

prima facie case, nor has it established any affirmative defense. 

(See, Goff, supra.) 

ORDER 

It is ORDERED that: 

1. Respondent shall, within 15 days of the date of this 

Decision, post a copy of this Decision at its Mine No. 8 where 

notices to miners are normally placed, and shall keep it posted 

there for a period of 60 days. 

1326 
2. Complainants shall file a statement, within 20 days of 

this Decision, indicating the specific relief requested. The 

statement shall be served on Respondent who shall have 20 days, 

from the date service is attempted, to reply thereto. 

3. This Decision is not final until a further Order is 

issued with respect to Complainants' relief and the amount of 

Complainants' entitlement to back pay if any. 

Distribution: 

~ 

I . 

Avram Weisberger 

Administrative Law Judge 

Shelia K. Cronan, Esq., Office of the Solicitor, u. S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 <Certified 

Mail) 

Robert J. Breimann, Esq., Street, Street, Street, Scott & Bowman, 

P. O. Box 2100, Grundy, VA 24614 (Certified Mail) 

dcp 

1327 
FEDERAL MINE SAFETY AND HEALTH REVIEW CG)MMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

BOBBY R. LUTTRELL, 

Complainant 

v. 

JERICOL MINING, INC., 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 3O1988 

DISCRIMINATION PROCEEDING 

Docket No. KENT 87-214-D 

BARB CD 87-36 

No. 1 Creech Mine 

DECISION 

Appearances: Sidney B. Douglass, Esq., Harlan, KY, for 

Complainant; 

William D. Kirkland, Esq., and Christopher M. Hill, 

Esq., McBrayer, McGinnis, Leslie and Kirkland, 

Frankfort, KY; for Respondent. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

Complainant contends that he was discharged from his job as 

a roof bolter on April 27, 1987, for complaining of safety 

conditions, activities which are protected under the Federal Mine 

Safety and Health Act of 1977, (hereinafter the Act). He filed a 

discrimination complaint on May 14, 1987, with the Mine Safety 

and Health Administration (MSHA). On July 15, 1987, MSHA 

notified him of its finding that a violation of section 105{c) of 

tne Act had not occurred. 

Mr. Luttrell thereafter filed a pro se complaint with this 

Commission on July 29, 1987, naming Jerico! Mining, Inc., 

(Jerico!) as respondent. The complaint was not served upon 

Jericol until September 1, 1987, but Jerico! had been notified by 

the Commission on August 4, 1987 that an incomplete complaint had 

been filed. The complainant thereafter completed his filing and 

on October 2, 1987, Jericol filed its answer. Respondent 

contends that Luttrell was discharged for insubordination and 

engaging in threatening behavior against his superiors and not 

because of any protected activity. 

Pursuant to notice, an evidentiary hearing was held in 

Lexington, Kentucky on May 25, 1988. Both parties elicited oral 

testimony and submitted documentary evidence into the record. 

Additionally, the post-hearing deposition of Mr. Harold Brewer, 

1328 
which was taken on June 17, 1988, has been offered and received 

int~ the record of trial. 

By motion, complainant also seeks to file his own 

post-hearing deposition wherein he alleges that on May 26, 1988, 

the day after the hearing, he and one of the men who had 

testified on his behalf, were terminated from their employment 

with General Testing of Harlan, Kentucky, a construction firm, 

because of this case against Jerico! Mining, Inc. The 

complainant asserts that his deposition testimony is relevant to 

show bias and malice against him on the part of Jerico!. 

Respondent objects to the admission of this deposition into the 

record on several grounds, including relevancy. The relevancy 

objection is well taken. I am concerned in this proceeding with 

an April of 1987 discharge which is allegedly unlawful. What may 

have occurred in May of 1988 between the complainant and some 

other third party with or without the complicity of the 

respondent is too remote to have any bearing on the case before 

me. Accordingly, complainant's motion to file the deposition of 

the complainant or in the alternative to reopen the hearing is 

denied. 

Both parties have filed post-hearing briefs which I have 

considered along with the entire record and considering the 

contentions of the parties, make this decision. 

ISSUES 

1. Whether complainant has established that he was engaged 

in activity protected by the Act. 

2. If he was, whether the complainant has suffered adverse 

action as a result of that protected activity. 

3. If he did, to what relief is he entitled by law. 

STIPULATIONS 

The complainant and respondent stipulated to the following 

by Joint Exhibit No. 1: 

1. The complainant's last day of work was April 21, 1987. 

2. Prior to his discharge, the complainant was employed by 

the respondent as a "miner" within the meaning of 30 USC 

§ 802(g). 

3. The respondent is an "operator" within the meaning of 30 

use § 002 Cd>. 

1329 
4. The complainant was first employed by the respondent 

January 15, 1979. 

5. The complainant resigned on March 26, 1982. 

6. The complainant was reemployed on October 8r 1983. 

7. The complainant resigned again on April 6, 1984. 

8. The complainant was rehired on July 11, 1984. 

9. The complainant quit his job with the operator on 

September 9, 1985 and filed a MSHA complaint. 

10. The complainant withdrew the above MSHA complaint on 

September 30, 1985, and was allowed to come back to work. 

on 

11. On April 21, 1987, Millard Perry held the position of 

section foreman with respondent and was the complainant's 

supervisor. 

12. Robert McConnell, Wayne Sizemore, Larry Blanton, Mike 

Smith, Don Pittman and Doug Brewer were witnesses to the 

confrontation on April 21, 1987 between complainant and Millard 

Perry. 

13. The Kentucky Division of Unemployment Insurance has 

determined that the complainant was not entitled to collect 

unemployment compensation because he was discharged for 

insubordination. 

14. The Mine Safety and Health Administration has 

determined that the respondent has not violated§ 105(c) of the 

Federal Mine Safety and Health Act of 1977 with regard to the 

complainant's discharge. 

DISCUSSION 

Mr. Luttrell first went to work for Jericol in January of 

1979, while the company was in the midst of a strike with the 

United Mine Workers. He endured hardships during his first seven 

to nine months of employment due to the strike. The miners were 

escorted back and forth to work by the State Police in armored 

busses and there were shootings. One man was killed on the same 

bus with Luttrell and two others were wounded, but Luttrell 

continued to cross the picket line and go to work. 

Mr. Luttrell has been a roof bolter for most of his career 

with Jericol and over the years has made safety-related 

complaints to the company on numerous occasions. 

1330 
For instance, in 1982 or 1983, when he worked at the Wallins 

Mine, he had complained of the roof bolts he was furnished being 

too short to hold the top. He also complained that the "boss" 

and the continuous miner operator were using LSD, Valium, "speed" 

and other drugs while on the job and were consequently making 

cuts forty and fifty feet deep. He also testified that the mine 

foremen were giving the miners all sorts of drugs such as THC, 

animal tranquilizers, Valium, "speed" and Percodan right on the 

job. Allegedly as a result of these complaints, they moved him 

to the Creech No. 2 Mine. On cross-examination, however, he 

testified that he, too, smoked marijuana underground while 

operating the roof bolter. 

In 1985, he filed a prior discrimination complaint with 

MSHA, but it was dropped after the company gave him his job back, 

and moved him to the Creech No. 1 Mine. 

In 1986, at the annual retraining meeting for the Jericol 

employees at Keokee, Virginia, Luttrell spoke out and complained 

about safety conditions~-the roof bolters being under too much 

pressure and having to worK too many hours. This was in front of 

all the company employees, including Mr. Baker, the 

Vice-president of Operations. 

In June of 1987, Luttrell testified on behalf of Mr. Roger 

Hall, who had also filed a discrimination case against Jericol, 

but he (Luttrell) had already been fired for two months at this 

point. Therefore, absent proof of some connection between giving 

this testimony on behalf of Hall and his own discharge, I cannot 

find that this was protected activity relevant to his April 1987 

discharge. Baker's testimony is that he had no knowledge that 

Luttrell would testify in the Roger Hall case at the time he 

fired Mr. Luttrell. In fact, Luttrell himself testified that he 

told Baker that he would not testify two weeks before ne was 

terminated. In any event, it defies common sense that Baker 

would fire Luttrell before the Hall case went to trial, if his 

purpose was to prevent Luttrell from testifying for Hall. 

There was also some testimony concerning the issue of 

whether or not Luttrell had called the federal mine inspectors in 

to inspect the mine. However, Luttrell maintains he did not and 

there is nothing in the record otherwise to suggest that he did, 

or that Mr. Baker thought he did. 

Mr. Luttrell had also on occasion made safety 

complaints to Millard "Red" Perry, his section foreman and 

supervisor. Specifically, he had complained about his "pinner" 

cable being "blocked in". That means it was wired straight in 

from the power cable, around the circuit breaker, so that the 

1331 
breaker wouldn't trip in the event of a short in the circuit, and 

shut the equipment off. 

The most significant safety complaint Bobby Luttrell seems 

to have made was that he had to work under deep cuts. Several 

witnesses for the complainant testified to this effect and I find 

it to be a credible claim. 

On the last day Mr. Luttrell actually worked for Jericol, 

April 21, 1987, the circuit breaker tripped on the roof bolter, 

shutting the machine down, until the maintenance foreman, Doug 

Brewer, "blocked it in". This is a practice Mr. Luttrell 

believes to be· very dangerous. He had complained of this 

practice in the past, but there was no testimony that he made any 

mention of it on this day. 

In any case, foreman Perry was of the opinion that Luttrell 

was bolting slower than usual that day and he also believed that 

Luttrell was attempting to get the bolting machine stuck in loose 

coal, ostensibly so he could take a break from bolting. Mr. 

Luttrell, on the other hand, states that he could not have bolted 

any faster that day because the top was bad and he denies that he 

was trying to get the bolter stuck, although he admits it did get 

stuck and he was done bolting for the rest of the shift. 

After what turned out to be his final shift, Luttrell and 

his partner on the "pinner," Mike Smith, were called into the 

mine superintendent's office. Their forenan, Millard Perry, was 

waiting there for them, along with Wayne Sizemore, and he 

confronted them both about their work. Smith testified that 

Perry said they were both too slow and that they could bolt 

better. He (Smith) acknowledged that they could have probably 

bolted more top, but I note that this whole issue of productivity 

is largely irrelevant to this case. Whether or not Mr. Luttrell 

is a slow bolter or a fast bolter is relatively insignificant 

compared to his violent reaction to this criticism coming from 

his supervisor. 

With the four men gathered in the superintendent's office, 

Perry asked Luttrell and Smith if they had a problem working for 

him. Smith replied in the negative. Luttrell responded by 

asking if Perry had a problem with them, to which Perry replied 

that he did have a problem with that day's bolting. According to 

Perry's testimony, which is corroborated in the main by Smith's 

and Sizemore's, it was at this point that Luttrell started 

cussing him, calling him names and invited him out to his truck 

to take care of him there. Perry testified that he understood 

that Luttrell meant to kill him. He quoted Luttrell as saying to 

him: "Come out to my truck; I've got something to take care of 

you with." 

1332 
Robert McConnell, another Jericol foreman happened to be in 

the same building, but in a different room while all this was 

going on. -He testified that he heard a lot of screaming through 

the door and then the door was flung open, Mr. Luttrell came out 

and then turned and called foreman Perry a "motherfucker," and 

that he would meet him at Slope Hollow and take care of him 

there; and he said that he had something in his truck to take 

care of him with. Luttrell did in fact wait for Perry at Slope 

Hollow, but Perry didn't stop. 

Foreman McConnell had also had an earlier episode with Mr. 

Luttrell. On January 15, 1987, McConnell was acting section 

foreman on the section Bobby Luttrell was running a bolting 

machine on. When the bolter broke down, he told Luttrell to go 

and shovel around the coal feeder and tailpiece. Instead of 

performing this task, Luttrell began operating one of the shuttle 

cars until McConnell saw him. At that time he told him he didn't 

want him operating the car and to go back to the dump and shovel 

the loose coal alongside the batwings on the feeder. When he 

went back a short time later to check on Luttrell, he wasn't 

there. He found him back at the bolting machine watching the 

repairman work on the drill. McConnell again told him to go to 

the dump and finish shoveling the loose coal. According to 

Respondent's Exhibit No. 5, which is a Jericol Mining, Inc., 

Incident Report and the testimony of McConnell at the hearing, 

Luttrell said words to the effect that he was tired of the 

foreman "fucking" with him, called him a "motherfucker" and 

threatened to take a piece of drill steel and "knock his 

goddamned head off". He purportedly added that if that wasn't 

enough, he had a gun in his truck to take care of the situation. 

McConnell fired him on the spot. He later rescinded this action 

after Luttrell had calmed down, but warned him that if it 

happened again, he would be discharged. 

Mr. Baker, the Vice-president of Operations at Jericol, was 

advised the next day of the incident with Millard Perry in 

Sizemore's office. At that time, he reviewed Luttrell's 

personnel file which included the report of the McConnell 

incident of January 15. Based -0n the fact that Luttrell had in 

the very recent past thre~tened and verbally abused two foremen 

who were his immediate supervisors, Baker felt he had no 

alternative but to discharge him for the safety of the other 

employees at the mine. He ordered that be done the next time 

Luttrell reported to work, which was the following Monday. 

The complainant maintains that he was discharged for 

activity protected by the Mine Act. More specifically, he 

testified that he believed he was terminated because he had 

complained about safety conditions over the years and that he had 

1333 
been provoked into cursing Perry on April 21, 1987, so the 

company would have an excuse to fire him. 

I believe and find credible that on occasion over the years 

he had made safety-related complaints to his immediate supervisor 

concerning matters which he believed to be unsafe mining 

practices. This is obviously protected activity. However, in 

order to make a orima facie case, more is required. In order to 

establish a prima facie case of discrimination under section 

105(c) of the Mine Act, a complaining 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 that activity. Secretary of Labor 

ex rel. Fasula v. Consolidation Coal Company, 2 FMSHRC 2768 

(October 1980), rev'd on other grounds sub nom. Consolidation 

Coal Company v. Marshall, 663 F.2d 1211 C3d Cir. 1981); Secretary 

on behalf of Robinette v. United Castle Coal Company, 3 FMSHRC 

803 (April 1981); Secretary on behalf of Jenkins v. Hecla-Day 

Mines Corporation, 6 FMSHRC 1842 (August 1984); Secretary on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511 

(November 1981), rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 86 {D.C. Cir. 1983). 

Of particular importance in this case is the second part of 

the complainant's burden of proof. He must make an initial 

showing that his discharge was motivated at least in some part by 

his protected activity. If he fails to establish a causal 

connection between his protected activity, i.e., the safety 

complaints he made and the adverse action taken against him, he 

has failed to prove an essential element of his case and his 

Complaint is subject to dismissal. 

It seems clear to me from the record in this case that Mr. 

Luttrell was discharged from his job solely for aggravated 

insubordination on not just one, but two separate occasions, 

approximately three months apart. 

Complainant has most definitely not shown by a preponderance 

of the reliable and probative evidence that his discharge was 

motivated in any part by protected activity. He has therefore 

failed to meet his burden of proof in this regard. 

The respondent, however, has shown by an overwhelming 

preponderance of the evidence that Mr. Luttrell was discharged 

solely for threatening and verbally assaulting his for~nan on two 

different occasions in January and April of 1987, as more fully 

set-out earlier in this decision. Furthermore, there was no 

showing that Mr. Baker, who was the individual responsible for 

Luttrell's discharge, was even aware of Luttrells' prior safety 

complaints to his various foremen over the years. To the 

1334 
contrary, it is unrebutted in this record that Baker was not 

aware of any safety complaints made by Luttrell to anybody. 

An additional point is noteworthy in that regard. Mr. 

Luttrell claims to have made safety complaints to his foremen 

over the entire span of his years with Jericol. As established 

in the stipulations, supra, between 1979 and 1987, Mr. Luttrell 

left voluntarily and was subsequently re-hired by the company on 

several occasions. If company management was aware of Luttrells' 

safety complaints and was bothered by them to any degree, they 

could have simply not re-hired him on any one of those occasions. 

I must concur with the respondent that repeated threats and 

verbal abuse by an employee directed towards his supervisor need 

not be tolerated by any company, and is certainly not protected 

activity under§ 105(c} of the Mine Act. 

ORDER 

In view of the foregoing findings and conclusions, and after 

careful consideration of all of the credible evidence and 

testimony adduced in this case, I conclude and find that the 

complainant has failed to establish a violation of section lOSCc} 

of the Act. Accordingly, the Complaint IS DISMISSED, and the 

complainant's claims for relief ARE DENIED. 

Distribution: 

Sidney B. Douglass, Esq., 120 South Second Street, Harlan, KY 

40831 (Certified Mail} 

Christopher M. Hill, Esq., and William D. Kirkland, Esq., 

McBrayer, McGinnis, Leslie and Kirkland, 300 State National Bank 

Building, Frankfort, KY 40602 (Certified Mail} 

1335 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER CO 80204 SEP 301988 

SECRETARY QF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

ASARCO INCORPORATED, 

Respondent 

. . CIVIL PENALTY PROCEEDING 

Docket No. WEST 87-179-M 

A.C. No. 05-00516-05523 

Leadville Unit 

DECISION APPROVING PARTIAL SETTLEMENT 

Before: Judge Lasher 

Upon Petitioner's motion for approval of a proposed partial 

settlement and the same appearing proper and in the full amount 

of the initial assessments for 10 of the 19 Citations involved, 

the settlement is approved. 

Pursuant to the agreement reached, Respondent agrees to pay 

the following penalties: 

CITATION NO. 

2638789 

2638867 

2638859 

2638872 

2638874 

2638875 

2638876 

2638922 

2638878 

2638923 

TOTAL 

PENALTY 

$ 20.00 

112.00 

20.00 

20.00 

20.00 

20.00 

20.00 

20.00 

20.00 

20.00 

$292.00 

Respondent, if it has not previously done so, is ordered to 

pay to the Secretary of Labor within 30 days from the date hereof 

the total sum of $292.00 as and for the civil penalties above 

listed. 

(5'~&-~z/,.?(. p£~1' /!. 

Michael A. Lasher, Jr. 

Administrative Law Judge 

1336
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRAllVI:. LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER. CO 80204 

August 30, 1988 

EMERY MINING CORPORATION 

AND/OR UTAH POWER & LIGHT 

COMPANY, 

Contestants 

v. 

SECRETARY OF LABOR, 

. MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA, (UMWA), 

Intervenor 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. WEST 87-130-R 

Citation No. 2844485; 3/24/87 

Docket No. WEST 87-131-R 

Order No. 2844486; 3/24/87 

Docket No. WEST 87-132-R 

Order No. 2844488; 3/24/87 

Docket No. WEST 87-133-R 

Order No. 2844489; 3/24/87 

Docket No. WEST 87-134-R 

: Citation No. 2844490; 3/24/87 . . 

. . 

. . 

. . 

Docket No. WEST 87-135-R 

Citation No. 2844491; 3/24/87 

Docket No. WEST 87-136-R 

Citation No. 2844492; 3/24/87 

Docket No. WEST 87-137-R 

Citation No. 2844493; 3/24/87 

Docket No. WEST 87-144-R 

Order No. 2844795; 3/24/87 

Docket No. WEST 87-145-R 

Order No. 2844796; 3/24/87 

Docket No. WEST 87-146-R 

: Order No. 2844798; 3/24/87 . . 

: Docket No. WEST 87-147-R 

Order No. 2844800; 3/24/87 

: Docket No. WEST 87-150-R 

: Order No. 2844805; 3/24/87 

Docket No. WEST 87-152-R 

: Order No. 2844807; 3/24/87 . . 

: Docket No. WEST 87-153-R 

: Order No. 2844808; 3/24/87 

1337 
: Docket No. WEST 87-155-R 

: Citation No. 28448111 3/24/87 . . 

: Docket No. WEST 87-156-R 

: Order No. 2844813; 3/24/87 

. . 

: Docket No. WEST 87-157~R 

: Order No. 28448151 3/24/87 . . 

: Docket No. WEST 87-158-R 

: Citation No. 28448161 3/24/87 . . 

: Docket No. WEST 87-159-R 

: Citation No. 28448171 3/24/87 

: 

. . 

. . 

. . 

Docket No. WEST 87-160-R 

Order No. 2844822; 3/24/87 

: Docket No. WEST 87-161-R 

: Order No. 2844823; 3/24/87 

: 

: Docket No. WEST 87-163-R 

Citation No. 28448261 3/24/87 . • 

. . 

. . 

. . 

Docket No. WEST 87-243-R 

Citation No. 2844828; 8/13/87 

: Docket No. WEST 87-244-R 

Citation No. 2844830; 8/13/87 . . 

: Docket No. WEST 87-245-R 

: Citation No. 2844831; 8/13/87 . . 

. . 

. . 

. . 

Docket No. WEST 87-246-R 

Citation No. 2844832; 8/13/87 

: Docket No. WEST 87-247-R 

: Citation No. 28448331 8/13/87 . . 

: Docket No. WEST 87-248-R 

: Citation No. 2844835; 8/13/87 . . 

: Docket No. WEST 87-249-R 

Citation No. 2844837; 8/13/87 . . 

: Wilberg Mine 

: Mine I.D. No. 42-00080 

1338 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EMERY MINING CORPORATION, and 

ITS SUCCESSOR-IN-INTEREST 

UTAH POWER & LIGHT COMPANY, 

MINING DIV. , 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA ( UMWA), 

Intervenor 

: CIVIL PENALTY PROCEEDINGS . 

: 

: Docket No. WEST 87-208 

: A.C. No. 42-00080-03578 . 

. 

. . 

. . 

. . 

. . 

. . 

. 

. 

. . 

. . 

. . 

. . 

Docket No. WEST 87-209 

A.C. No. 42-00080-03579 

Docket No. WEST 88-25 

A.C. No. 42-00080-03584 

Wilberg Mine 

ORDER 

The issues presented here involve the Secretary of Labor's 

renewed motion for summary decision and a motion by Utah Power and 

Light Company, Mining Division (UP&L) to vacate 30 modified 

citations and orders. ~/ 

Utah Power and Light opposes the Secretary's renewed motion 

for summary decision 2; and further moves to dismiss the citations 

and orders as modified or, in the alternative, moves for a summary 

decision if the modifications are ruled invalid. 

ll In the alternative, UP&L considers its pleading to be a motion 

for summary decision if the citations and orders are invalid as 

modified. 

2/ A similar motion filed by the Secretary on June 25, 1987 was 

denied by the Judge on August 5, 1987. 

1339 
Prior to discussing the pending issues it is necessary to 

detail certain relevant procedural history: 

On March 4, 1988 the Judge severed 11 cases from the general 

consolidation of the cases. After severance these cases were recon•olidated. The cases were docketed as WEST 87-138-R, WEST 

87-139-R, WEST 87-140-R, WEST 87-141-R, WEST 87-142-R, WEST 87-143-R, 

WEST 87-148-R, WEST 87-149-R, WEST 87-151-R, WEST 87-154-R and 

WEST 87-162-R. The dual cormnon denominator in these cases was that 

Emery Mining Corporation (Emery) had paid the proposed penalties in 

full and a dismissal had been entered as to Emery (Order, August 5~ 

1987). Further, a renewed motion for a surrunary decision by UP&L 

was pending in the cases. 

On March 9, 1988 UP&L's motion was granted. Since there were 

no remaining issues the cases were returned to the Commission. 

These cases are reported at 10 FMSHRC 339. 

The ruling in the cases holds that UP&L had not been cited as 

an operator and an enforcement action could not be sustained 

against it. Specifically, in part, the Judge st~ted that "UP&L was 

not cited as an operator but as a successor-in-interest," 10 FMSHRC 

at 349. The decision further holds that the successorship doctrine 

did not apply under the circumstances of the case. 

The Secretary did not appeal the Judge's order of dismissal 

but on April 27, 1988 she restated her prior position and indicated 

she would modify the remaining citations and orders to cite UP&L as 

an owner-operator. 

The nature of the modification of the citations and orders 

are as stated below in her renewed motion for summary decision. 

The modifications were made on April 25, 1988 and filed with the 

Commission on May 4, 1988. 

On May 17, 1988 the Secretary filed her renewed motion for 

summary decision. The motion, in its entirety, provides as 

follows: 

The Secretary of Labor hereby renews her previously 

filed motion for surmnary decision on the issues of Utah 

Power and Light's (UP&L) liabiLity as an operator. This 

motion is renewed because of additional information obtained in discovery aft~r the Judge's March 9, 1988, Order 

of Dismissal, and because the remaining unpaid citations 

and orders were modified in response to the Judge's Order. 

As modified, those citations describe the operators as: 

Utah Power & Light Company, owner-operator 

as well as the successor-in-interest to 

Emery Mining Corporation; and Emery Mining 

Corporation. 

134.0 
The additional information, which was received in discovery on March 14, 1988, consists of a portion of the Coal 

Mining Agreement between UP&L and the American Coal Company, 

which, in 1979, became the Coal Mining Agreement (Agreement) 

between UP&L and Emery. l/csee Appendix A hereto). Under 

the Agreement, UP&L agreed to provide a mining plan for its 

Wilberg and Deer Creek Mines and to "furnish all· capital 

equipment, [and to] pay for materials and supplies" in exchange for American Coal Company's, and later Emery's agreement to "perform all of the work and services necessary for 

the production of coal mined by deep mining or underground 

methods" from the Wilberg and Deer Creek Mines (See Appendix' 

A, p.l). Although the Secretary has not yet received the 

entire Agreement from UP&L or Emery, the portion that has been 

produced indicates that UP&L agreed to pay the "Total Cost of 

Production" at the Wilberg Mine. Under the Agreement, the 

"Total Cost of Production" means "all costs incurred by 

American [and later Emery] for the purpose of mining, washing, 

blending, processing, storing and loading coal produced from 

Deer Creek and Wilberg Mines and in operating and maintaining 

said Deer Creek and Wilberg Mines under the terms of this 

Contract." (See Appendix A, p. 2). 

These costs included salaries and wages, etc., as well as 

the: 

"(v) costs of complying with federal, state 

or local laws, rules, regulations, including mining 

laws and regulations and court orders, judgments 

and settlements including related attorneys fees 

relating to proceedings arising out of American's 

[Emery's] performance under this Contract, but 

excepting all costs incurred by American [Emery] 

with respect to any proceeding against Utah [UP&L];" 

(emphasis supplied) (See Appendix A, p. 3). 

The Secretary's footnote reads as follows: 

1/ A copy of the entire Coal Mining Agreement between UP&L 

and Emery was requested in discovery by the Secretary on 

January 28, 1988. To date, the entire Agreement has not 

been received. It is extremely possible that the Agreement, in its entirety, will show an even closer nexus 

between UP&L's and Emery's operations at the Wilberg Mine. 

1341 
There remains no genuine issue of material fact in 

dispute concerning UP&L's status as an owner-operator at the 

time of the December 19, 1984, Wilberg Mine Fire or as a 

successor-in-interest operator when Emery Mining Corporation 

(Emery) departed from the Wilberg Mine operation on April 16, 

1986 (Order, page 4). The Secretary supports the renewed 

motion with the following undisputed facts: 

Undisputed Facts. 

1. UP&L has been owner of. the coal mineral rights for 

the Wilberg Mine since 1976 (pages 2, 4, Judge's March 4, 

1988, Order of Dismissal, hereinafter "Order"). UP&L contracted with the American Coal Company in 1972 to operate 

UP&L's Deseret, Beehive and Little Dove mines as a contract 

opera~or and in 1976 to operate the Deer Creek and Wilberg. 

mines. Beginning in June 1979, and ending on April 16, 1986 

UP&L contracted with Emery Mining Corporation (Emery> to 

operate UP&L's mines as a contract operator <Order, page 2). 

2. UP&L submitted its mining application for the 

Wilberg Mine to the Bureau of Mines. Subsequently, UP&L 

submitted mining plans for the Wilberg mine to the Bureau 

of Mines. These extensive mining plans were prepared and 

submitted without Emery involvement. (Order, page 4). 

3. During the entire time that Emery was under contract with UP&L to operate the Wilberg Mine, UP&L had a 

resident engineer present at the mine on a daily basis to 

make sure that the mining plans referred to above, were 

followed (Order, page 4). 

4. UP&L purchased and owned all of the major mining 

equipment used at the Wilberg Mine during the entire June 

1979 to April 16, 1986 contract period with Emery (Order, 

page 4). The Agreement between Utah Power and Light 

and Emery stated that UP&L would: 

"provide a mining.plan and will furnish all 

capital equipment, [and] pay for materials 

and supplies • • • " (see Appendix A, p. l). 

1342 
5. In UP&L's contractual mining Agreement with American Coal Company, and subsequently with Emery, UP&L agreed 

to pay the "Total Cost of Production" as described under 

Article VII of the Agreement (see Agreement, Appendix A). 

One of the costs described in Paragraph 7.01 (iii> of the 

Agreement relates to: taxes, assessments and fines except 

for willful violations and other charges imposed on Emery 

by federal, state, or local governments. (This section was 

amended February 24, 1984, to "taxes, assessments and 

similar.charges •.•• ">. 

In addition, Paragraph 7.0lCv> provided that UP&L 

would reimburse Emery for the: 

"costs of complying with federal, state 

or local laws, rules, regulations, including 

mining laws and regulations ••• (emphasis 

supplied). 

(See Appendix A, Para. 7.0l(v)). 

The fact that UP&L reimbursed Emery is supported by 

Emery's Answer to Interrogatory 3a of the Secretary's 

First Set of Interrogatories and Request for Production 

of Documents : 

Interrogatory 3a 

(a) Explain any indemnity agreement between Emery and UP&L concerning liability 

for violations and penalties under the Mine 

Act and other state and federal laws. Submit a copy of any written agreement to this 

effect. 

3a. Response: UP&L and American Coal Company (the predecessor of Emery> entered into 

a Coal Mining Agreement dated November 24, 

1976. The Coal Mining Agreement originally 

provided that fines (except for willful violations) were a reimburseable cost from UP&L 

to Emery. 

6. UP&L and Emery mutually agreed on production goals 

for the Wilberg Mine during the June 1979-April 16, 1986, 

period (Order, page 4>. The amended Mining Contract Agreement between the companies refers to monthly fees paid to 

Emery for coal tonnage delivered to UP&L each month with 

different fees for different tonnage quotas. (See pages 1 

and 2 of the "Second Amendment to Coal Mining Agreement 

Between Emery Mining Corporation" (included in Appendix A 

hereto) where reference is made to the deletion of Paragraph 6.03 of the Agreement). 

1343 

, 
7. Under the Mine Act and its implementing regulations, mine operators are required to submit a number of 

mine plans to MSHA for approval; UP&L reviewed Emery's 

mine plans before they were submitted to MSHA when these 

plans concerned the mining system in use at the Wilberg 

Mine <Order, page 4) ~/ • 

8. As stated by UP&L Cpage 3, Statement of Facts 

to its Motion for Summary Judgment), UP&L retained most of 

Emery's work force when it took over complete operations 

of the Wilberg Mine in April 1986. Although this transfer 

did not include all of Emery's officers and directors, 

UP&L retained Emery mining supervisors and management personnel including David D. Lauriski, Safety Director, and 

John Boylen, Mine Manager, at the Wilberg Mine (See Exhibits c, D, and E To Secretary's Response to Contestant's 

Motion for Summary Decision). (See also Order, p.4). 

A list of UP&L ~ployees after April 16, 1986, and a 

list of Emery Wilberg employees before April 16, 1986, 

were submitted by UP&L and Emery in response to Interrogatory 3Cb) and 3Cc> of the Secretary's First Set of 

Interrogatories and Request for Production of Documents. 

Comparison of these lists indicates that most of Emery's 

work force at Wilberg was retained by UP&L, including 

several foremen, i.e., Mr. Clifford N. Leavitt, General 

Maintenance Foreman; Richard A. Cox, Mine Foreman; Lee 

Lemon, Maintenance Superintendent; Harry Earl Snow, General 

Mine Foreman; Scott Timothy, Section Foreman; and others. 

9. After the December 19, 1984, Wilberg fi~e, UP&L 

personnel directly participated in MSHA's investigation 

of the fire origin area of the Mine. 

The Secretary's footnote reads as follows: 

2/ This makes business sense, for as stated above in Paragraph 5, UP&L reimbursed Emery for total production costs, 

including costs incurred in complying with federal mining 

laws and regulations. 

1344 
David D. Lauriski, presently UP&L's Safety Director 

(formerly Emery's Safety Director), helped plan and direct 

UP&L employees in this crucial aspect of MSHA's investigation. Mr. Lauriski and/or other UP&L personnel were 

present or nearby at all times during the underground 

investigation (Order, page 4). 

10. At their request, UP&L representatives were 

present in January 1985, at the initial sworn statement 

proceedings held by MSHA during MSHA's investigation of 

the Wilberg fire. (See Appendix B hereto, Secretary of 

Labor's Memorandum in Opposition to Motion for Preliminary 

Injunction, in pertinent part, pages 1, 3 and 4). When 

the Society of Professional Journalists sought access to 

the proceedings, a Temporary Restraining Order was issued 

on January 24, 1985, stopping the taking of the sworn 

statements. 

On February 8, 1985, the U.S. District Court for the 

District of Utah issued a preliminary injunction permitting 

the taking of statements with MSHA, the State Commission, 

and the United Mine Workers of America (UMWA) present. Emery, 

but not UP&L, then filed a complaint asking permission to 

participate. On February 14, 1985, the preliminary injunction 

was modified to permit Emery to participate (MSHA Wilberg 

Mine Fire Report at page 26). By its own choice, UP&L never 

filed a complaint requesting participation. Verbatim transcripts of the sworn statements taken at the proceedings 

were available to the public, including UP&L (Appendix B, 

page 4) • 

11. On March 24, 1987, when the mine fire investigation 

orders and citations were issued by MSHA, UP&L owned, operated and fully controlled the Wilberg Mine. <This is indicated by the Legal Identity Reports filed by Emery and 

UP&L with MSHA as required by law. See Exhibits D and E to 

the Secretary's Response to Contestant's Motion for Summary 

Decision). At the time the citations and orders were issued, 

UP&L, and not Emery, had responsibility for abatement of the 

violations and for compliance with mandatory federal mine 

safety and health standards at the Wilberg Mine. In addition, 

UP&L, and not Emery, had the responsibility to post the 

citations and orders pursuant to Section 109(a), 30 u.s.c. 

§ 819(a), of the Mine Act. Further, as indicated on the face 

of the citations and orders issued on March 24 and August 13, 

1988, both UP&L and Emery were served copies of the citations/ 

orders. 

1345 
On July 6, 1988 UP&L responded to the Secretary's renewed 

motion and on July 12, 1988 UP&L moved to vacate the 30 modified 

citations and orders dated April 25, 1988. 

Extensive briefs were filed by the Secretary and UP&L. 

Discussion 

The pivotal issue presented by UP&L's motion is whether the 

Secretary can modify the 30 citations and orders herein to charge 

UP&L with direct liability for the alleged violations. 

By way of background: the Wilberg Mine fire started December 

19, 1984. On March 24, 1987 the Secretary issued .citations and 

orders charging Emery, as the operator, with 34 Clater increased 

to 41) violations of the Act. The citations and orders further 

charged UP&L with derivative liability for Emery's alleged violations as Emery's alleged successor-in-interest. 

· In his order of March 9, 1988 in 11 of the pending cases the 

Judge ruled that UP&L had not been cited and could not be held as 

an operator; further, he ruled that UP&L could not be held liable 

as a successor-in-interest, 10 FMSHRC 339. 

On April 25, 1988 the Secretary sought to modify 3/ the 

citations and orders so as to charge UP&L with direct liability 

for the alleged violations as an operator. In sum, this new 

attempt to impose direct liability comes in the 40th month after 

the fire and in the 13th month after the citations and orders 

were originally issued against Emery. 

·on the factual scenario presented here I conclude that the 

purported modifications cannot stand. In particular, the modifications are untimely, were not issued "forthwith" nor with "reasonable promptness," and the modification conflicts with the procedural requirements of the Act; further, they are prejudicial to 

UP&L. 

In review of the untimeline~s issue: on April 25, 1988 the 

Secretary no longer had the authority to modify the 30 citations 

and orders since each had already been terminated by MSHA. Section 

104(h) of the Act gives the Secretary the power to modify citations 

and orders but this power is not unlimited. The Act provides that 

11 The modifications do not change any factual assertions relating 

to the individual citations and orders. 

1346 
a citation or order shall remain in effect until modified or 

vacated by the Secretary. Section 104Ch}. But once a citation or 

order is no longer in effect because it was terminated it cannot 

be modified. Old Ben Coal Co., Docket No. VINC 76-56 (June 15, 

1976) CALJ Sweeney). Appeal dismissed, IBMA 76-104 (October 19, 

1981). 4/ 

In Old Ben, a§ 104Cc)(2) order [the predecessor to the 

current§ 104(d)(2) order] had been issued under the 1969 Coal 

Act, alleging a· violation of 30 C.F.R. § 75.400. After the operator had abated the violation and after MSHA had terminated the , order and 11 days after the operator had filed its application for 

review challenging the order, MSHA purported to modify the order 

to correct certain errors with respect to its recitation of the 

necessary underlying elements of the § 104(c) unwarrantable failure 

chain. MSHA claimed that the modification was authorized by the 

predecessor to§ 104(h), § 104Cg) of the 1969 Coal Act, which 

provided that "[a] notice [of violation -- the predecessor of a 

citation] or order ••• may be modified or terminated by an 

authorized representative of the Secretary." 

The Administrative Law Judge held that the order could not be 

modified by MSHA after it had already been terminated, noting that 

"[no]thing remains to be modified in an order after such order has 

been terminated." Unlike "vacation," the Judge explained, termination does not indicate "an expungement ab initio," but rather 

"a cessation of continuing liability": -

[T)he essential function of a termination is 

to give notice to the operator of a cessation 

of liability. An operator is entitled to rely 

upon the finality of an order upon its termination; and in a section 105(a) review proceeding is entitled to challenge that order 

as it is written as of the timer of its 

termination. 

**** 

[A] rule of reason must prevail in determining 

the time-frame within which [MSHA] may be permitted to modify an order of withdrawal. I 

conclude that subsequent to the point of abatement and termination an operator is entitled to 

!/ Cited case appended to UP&L's motion filed July 12, 1988. 

1347 
an assurance that the citation which it seeks to 

challenge under the Act is a fixed target. This 

is particularly true, as here, where an application [for review -- the predecessor of the notice 

of contest] had already been filed [challenging, 

as here, the very element MSHA would seek to 

change by its modification]. Id. at 10. 

Finally, the Judge concluded: 

In sum, an operator seeking review of an 

order of withdrawal is entitled to rely upon the 

form and content of that order as of the filing of 

its application for review, where such order has 

already been abated and terminated by [MSHA]. 

Such termination by [MSHA] leaves no operative 

part of its order extant, and consequently there 

is nothing left of it to modify. Should bona fine 

clerical errors exist in the order, then it remains for [MSHA] to argue in a review proceeding 

that said errors are harmless, or that they do not 

otherwise effect [sic] the validity of the subject 

order. But where, as here, the errors are of such 

a basic nature ••• , then vacation of the order 

is the only appropriate sanction in a section 

105(a) review proceeding. Id. at 11. 

Similarly, in Peabody Coal Co., Docket No. DENV 77-57-P 

(October 21, 1977) (ALJ Sweitzer) a modification was not permitted 

where "over two years [had] elapsed since the alleged violation 

ha[d] occurred and the attempted modification [was] being requested 

after the [civil penalty] petition had been filed and after the 

Respondent had moved to dismiss the violation •••• Slip op. 

at 3. 

In the instant cases the Secretary wants to change her charge 

not only after the notice of contest had been filed (as in Old Ben 

and Peabody) but after an order had been entered against her on the 

charge she had prosecuted. 

In review of the untimeliness issue under § 104: Section 

104(d)(l) requires that orders must be issued "forthwith." However, the Secretary's proposed modifications were not issued until 

40 months after the alleged violations occurred and until 13 months 

after.citations and orders alleging the same violations were issued 

to Emery. 

1348 
It is a fundamental principle of statutory construction that 

courts must start with the plain language of the statute. Rubin 

v. United States, 449 U.S. 424, 430 (1981); International Union, 

UMWA v. Federal Mine Safety and Health Review Commission, 840 

F.2d 77, 81 (D.C. Cir. 1988) ["It is a fundamental rule, too often 

neglected, that in statutory construction the primary dispositive 

source of information is the wording of the statute itself." 

(quoting Association of Bituminous Contractors v. Andrus, 581 F.2d 

853, 861 CD.C. Cir. 1978)]. Where the language is clear, courts 

must enforce the terms of the statutory provision as they are 

written unless it can be established that Congress clearly intended 

the words to have a different meaning. Chevron, U.S.A. v. NRDC, 

467 U.S. 837, 842-43 (1984) (affirming that where intent of 

Congress is clear, agency must follow that intent); United States 

Lines v. Baldridge, 677 F.2d 940, 944 (D.C. Cir. 1982); Phelps 

Dodge Corp. v. Federal Mine Safety & Health Review Commission, 681 

F.2d 1189 (9th Cir. 1982); Freeman United Coal Mining Co., 6 FMSHRC 

1577, 1578 (1984). 

Section 104Cd) clearly states that unwarrantable failure orders 

shall be issued "forthwith." 5/ The words used by Congress are 

clear: the Secretary must issue a § 104Cd) order immediately after 

~/ In full, § 104(d)(l) provides that: 

If, during the same inspection or any subsequent 

inspection of such mine with 90 days after the 

issuance of [a§ 104(d)(l) citation] an authorized 

representative of the Secretary finds another violation of any mandatory health or safety standard 

and finds such violation to be also caused by an 

unwarrantable failure of such operator to so comply, he shall forthwith issue an order requiring 

the operator to cause all persons in the area 

affected by such violation, except those persons 

referred to in subsection Cc) to be withdrawn from, 

and to be prohibited from entering, such area until 

an authorized representative of the Secretary 

determines that such violation has been abated. 

(Emphasis added.) 

1349 
she finds another unwarrantable failure violation within 90 days 

of the issuance of a§ 104Cd)(l) citation. 6/ See Greenwich 

Collieries, 9 FMSHRC 2051, 2055-56 (1987) CALJ Maurer), review 

pending. Furthermore, there is no language in § 104Cd> which 

could authorize, either explicitly or implicitly, the Secretary 

to delay for over 13 months in modifying the orders to charge UP&L 

with direct liab.ili ty • See International Union, UMWA v. MSHA, 

823 F.2d 608, 617 CD.C. Cir. 1987). 

Further indicating the Congressional intent i$ the fact 

that § 104(d) does not contain a savings clause. For example, 

a § 104(a) citation must be issued with reasonable promptness. 

But the Act provides that "reasonable promptness shall not be a 

jurisdictional prerequisite to the enforcement of any provision of 

the Act," 30 U.S.C. § 814Ca). The omission of a similar provision 

in § 104Cd) is significant because it is evident that if Congress 

ha~ intended to include such a savings clause it knew how to do so; 

Clark-Cowlitz Joint Operation Agency v. FERC, 798 F.2d 499, 502 

(D.C. Cir. 1986> (Congress demonstrated that it knew how to 

restrict the duration of a privilege by including a temporal limit 

in Exemption 9 and the absence of such a limit in Exemption' lo 

shows none was intended); Gray v. OPM, 771 F.2d 1504, 1511 (D.C. 

Cir. 1985), ~- denied, 475 U.S.· 1089 ( 1986). 

In sum, the Act does not authorize the Secretary to delay for 

13 months the issuance of § 104(d) orders. Further, the§ 104Ca) 

§j According to common, ordinary usage, the term "forthwith" 

means "immediately." See~., Webster's New Collegiate Dictionary 

(1979). Congress' use of the term "forthwith" in the context of 

providing notice to operators under§ 103Cg>Cl> of the existence of 

an imminent danger -- where the concern of protecting miners right 

away is primary -- indicates that Congress intended forthwith to 

mean immediately. 

1350 
citations were not issued with "reasonable promptness" ~/ as required by the Act. 

While reasonable promptness is not a per se jurisdictional 

bar to their issuance, the legislative history indicates there 

must be a reasonable basis for the delay, such as a "protracted 

accident investigation." S.Rep. No. 181, 95th Cong., 1st Sess. 30 

(1977). Here,· the protracted accident investigation could justify 

the initial delays. But by August 13, 1987 the last of the citations and orders had been issued and there appears to be no 

legitimate basis for the further delay until April 1988 to cite 

UP&L. 

Nor are there any safety issues to justify the delay. As is 

evident from the face of the citations and orders themselves, any 

violations that existed at the time of the fire have long since 

been abated. 

In her response to UP&L's motion to vacate the Secretary 

asserts the modifications of the citations and orders were timely. 

(Response filed August 1, 1988 at 8 - 13.) 

ll Section 104Ca> provides, in full, as follows: 

"Sec. 104Ca> If, upon inspection or investigation, the 

Secretary or his authorized representative believes that 

an operator of a coal or other mine subject to this Act 

has violated this Act, or any mandatory health or safety 

standard, rule, order or regulation promulgated pursuant 

to this Act, he shall, with reasonable promptness, issue a 

citation to the operator. Each citation shall be in writing 

and shall describe with particularity the nature of the 

violation, including a reference to the provision of the 

Act, standard, rule, regulation, or order alleged to have 

been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The requirement for the issuance of a citation with reasonable promptness shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act. (Emphasis added.) 

1351 
I recognize that considerable delay was caused due to the 

condition of the mine after the fire and the necessary laboratory 

studies. But the fact remains that the last of the citations 

were issued on August 13, 1987; further, the modifications of the 

citations and orders were issued against UP&L on April 25, 1988. 

The Secretary relies on proceedings before the Commission to 

justify the delay but I am not aware that such proceedings justify 

a further delay in the issuance of 104(a) and 104Cd) citations and 

orders. 

In support of her position the Secretary also cites Greenwich 

Collieries, 9 FMSHRC 2051 (1987), pending on appeal. It may be 

that the resolution of Judge Maurer's case will have a bearing on 

the issues argued here. 

In review of the "procedural shortcut" issue: 

In the order of dismissal issued by the Presiding Judge on 

March 9, 1988 involving other related cases, it was noted that 

"procedural shortcuts" have been condemned by the Commission. In 

reaching this conclusion the Judge relied on the Commission 

decision in Monterey Coal Company, 7 FMSHRC 1004 (1985) and he 

emphasized that: 

The foundational principles set forth in Monterey 

bar the Judge from holding UP&L liable for civil 

penalties assessed directly against it as a mine 

operator in the absence of UP&L being cited as an 

operator and a civil penalty being proposed against 

it directly. UP&L has only been cited, and it is 

being subjected to civil penalty liability in these 

proceedings, for Emery's alleged violations. Had 

UP&L been cited as an operator, the entire course 

of this litigation would have been different. Any 

proposed penalties assessed by MSHA against UP&L 

as an operator would most likely have been dramatically lower. This is one of the reasons why the 

Commission in Monterey would not allow the Secretary 

to shortcut the Act's required procedures by commencing a proceeding against Frontier-Kemper in 

the midst of an ongoing proceeding against another 

operator. As the Commission explained: 

1352 
our insistence on the need for compliance 

with the procedural requirements [of the 

Act for initiating such proceedings] also 

serves a practical purpose and furthers 

the enforcement scheme contemplated by 

Congress in the Mine Act. Providing a 

mine operator with the opportunity to pay 

a civil penalty before the institution of 

litigation promotes judicial and administrative economy and can assist more expeditious 

·resolution of enforcement disputes. 

7 FMSHRC at 1007. See also Phil Baker v. U.S. 

Department of InterTOr BO'a'rd of Mine Qperations 

Appeals, 595 F.2d 746 CD.C. Cir. 1978), wherein 

the Court held that a judge could not find a 

violation of a mandatory safety standard absent 

the particular statutory proceedings for bringing 

that issue to federal attention. 595 F.2d at 750. 

Emery Mining Corporation, et al, 10 FMSHRC at 352 

(emphasis in original). 

The prior ruling provides that the Act does not permit the 

Secretary to prosecute UP&L for a violation without "a civil 

penalty being proposed against it directly." The Secretary's 

30 modifications seek to do that and constitute a procedural 

shortcut. Additional substantive rights effectively denied UP&L 

are the right to participate in any investigation relating to the 

citations and orders, the right to have an individualized penalty 

assessment, the right to participate in an assessment conference 

and the right to pay any penalty rather than litigate Emery's 

proposed assessments. 

The secretary states that she did not take procedural shortcuts. She states UP&L and Emery were cited from the beginning 

(date of issuance) and the Secretary intended and proposed only one 

penalty per violation against both of them jointly. (Secretary's 

response to UP&L's motion filed August 1, 1988 at 11, 12.) The 

Secretary states that obviously in a practical and equitable 

sense, in this case, one penalty for two co-operators is more 

appropriate and more fair than a separate penalty for each operator. 

This Judge is bound to follow Commission precedent. The 

Monterey case is clear on the issue of procedural shortcuts. 

Accordingly, the Secretary's position is rejected. 

In review of the pre~udice issue: the Secretary contends UP&L 

has not been prejudiced. I 

!/ Response to motion to vacate <pages 12, 13) filed August 1, 

1988. 

1353 
The Presiding Judge stated in his order of March 9, 1988 as 

follows: "UP&L was not cited as an operator but as a successorin-interest. An enforcement action cannot be sustained absent 

implementation by the issuance of a citation or order against UP&L 

as an operator, Act§ 104Ca)(d) ." 10 FMSHRC at 349. This ruling 

is now a final order of the Com.mission. The prejudice, as detailed above, flows from the failure to cite UP&L as an operator. 

In short, since UP&L was not cited as an operator it did not 

receive the statutory rights mandated under the Mine Act. 

On the issue of prejudice to UP&L, the Secretary argues that 

UP&L has been cited and served copies of the citations and orders. 

It, indeed, did contest all 41 citations and orders, and it did, 

indeed, contest all the civil penalties assessed herein. 

Further, she contends UP&L is not accurate when it states that 

during the accident investigation MSHA expressly determined that 

UP&L was not an operator. During the post-fire investigation, 

UP&L did not present itself as an operator of the Wilberg Mine but, 

to the contrary, it presented itself as a somewhat distant owner 

of the mining rights. UP&L's request to participate in the body 

recovery, was not as an operator but as a likely party to future 

tort litigation. While UP&L did not participate in the taking of 

sworn statements, all information relating to the sworn statements 

taken, Cnot confidential), and any equipment or laboratory results 

were made available to UP&L and the public. UP&L personnel were 

in charge of the physical recovery and were present during MSHA's 

most crucial part of its investigation. 

The Secretary further argues that UP&L had proper and fair 

notice that it was cited as an operator at the time of issuance of 

the original and subsequent citations. The fact that under the 

modifications it was expressly labeled an owner-operator as well as 

a successor-in-interest only clarified their prior notice of being 

an operator under the Mine Act. In both instances, UP&L was named 

under the "operation" blocks on the citation/order/ subsequent 

action forms. Modification to clarify previously issued citations 

and orders are permitted in a proceeding and do not constitute 

prejudice. See Jim Walters Resources, Inc., l FMSHRC 1827, 1979. 

(Argument from Secretary's response filed August 1, 1988 at 12, 

13). 

The prejudice to UP&L is as previously stated. The Secretary's suggestions are basically practical reasons why UP&L was 

not prejudiced. But the fact remains that the Mine Act vests in a 

cited operator certain rights. They were not provided to UP&L and, 

because of that failure, I reject the Secretary's position. 

1354 
For the foregoing reasons the 30 citations and orders, as 

modified, dated April 25, 1988, should be dismissed as to UP&L. 

UP&L's motion to vacate raises additional issues that should 

be addressed. The issues generally focus on the assertion that the 

Secretary's change of theories with respect to UP&L constitutes an 

abuse of her prosecutorial discretion, was vindictive and, as a 

result, UP&L is entitled to any costs incurred as a result of the 

modifications. ~/ 

In support of its position UP&L relies on Thigpen v. Roberts~ 

468 U.S. 27, 30; U.S. v. Goodwin, 457 U.S. 368; Hardwick v Doolittle, 558 F.2d 292, 5th Cir. 1977, cert. denied, 434 U.S. 1049 

(1978) among other cases. ~~ 

On the other hand, the Secretary argues that the Commission 

has authorized amendments, corrections and modifications long after 

citations have been terminated citing Jim Walter Resources, Inc. 

and Cowen and Co., 1 FMSHRC 1827 (1979); and Ralph Foster and Sons, 

3 FMSHRC 1181 (1981). (In the two cases cited by the Secretary the 

Commission particularly found a lack of prejudice, 1 FMSHRC at 

1829 and 3 FMSHRC at 1181.) 

Further, the Secretary argues that the law is clear: she 

has broad authority and discretion to cite parties under the Act. 

The Secretary relies on Bituminous Coal Qperator's Association v. 

Secretary of the Interior, 547 F.2d 240 (4th Cir. 1977); Harman 

Mining Corporation v. Federal Mine Safety and Health Review 

Commission, 671 F.2d 794 at 797 <4th Cir. 1981); and Secretary of 

Labor v. Cathedral Bluffs Shale Oil, 796 F.2d 533 at 538 CD.C. Cir. 

1986). 

As a background matter: these cases have certainly been 

vigorously prosecuted as well as vigorously defended. In fact, 

to date the Presiding Judge has ruled on ten complex motions for 

summary decision, two motions to reconsider and one motion in 

limine. The judge believes the parties have the right under the 

A.P.A., 5 u.s.c. § 554, 556, and the Mine Act to vigorously pursue 

their cases if they desire to do so. 

~/ UP&L's motion to vacate filed July 12, 1988, at 22 - 32. 

1355 
The Secretary explains that she did not appeal the Judge's 

ruling of March 9, 1988 because it was decided that (1) appeal 

of the order as to paid cases [paid by Emery] was inappropriate 

and legally unsupportable and <2> if there was an avenue to 

eliminate the legal concern over the form of the citations and 

orders still at issue, it should be taken now. And,in fact, it 

was taken with the modification of the citations and orders filed 

by the Secretary. 

No record of proceedings is available on the issue of an 

asserted abuse of discretion. But th~ Secretary's broad enforcement authority and her stated reasons, if established, could 

constitute persuasive evidence in support of her position that 

her actions were not an abuse of discretion nor vindictive. 

While an order of dismissal is to be entered vacating the 

30 modified orders and citations as to UP&L, it is nevertheless 

appropriate to consider the issues raised by the Secretary in her 

renewed motion for a summary decision. 

The focus of the Secretary's motion is threefold. Initially 

she asserts the indemnity agreement for the payment of any civil 

penalties does not nullify UP&L's legal status as an owneroperator. 10/ Further, she claims UP&L is liable under the Mine 

Act as an owner-operator. 11/ Finally, she contends UP&L is liable 

under the Mine Act as a successor-in-interest operator. 12/ 

I agree the indemnity agreement does not nullify UP&L's legal 

status. International Union, UMWA v. Federal Mine Safety and 

Health Commission, et al, 840 F.2d 77, D.C. Cir. 1988). However, 

the Secretary's argument is misdirected. It is true that any 

owner can be cited. But UP&L was not so cited and the Secretary's 

efforts to impose liability at this point in time cannot be 

sustained. 

In arguing that UP&L is liable as an owner-operator the 

Secretary relies on Section 3(d) of the Act as well as the frequently cited cases of Bituminous Coal Qperator's Association v. 

Secretary of Interior, supra, and Harman Mining Corporation v. 

Federal Mine Safety and Health Review Commission, supra. She 

particularly relies on certain asserted facts and newly discovered 

evidence consisting of the 1979 Coal Mining Agreement between UP&L 

and the American Coal Company (Emery's predecessor). 

10/ Secretary's renewed motion, filed May 17, 1988, at 10, 11. 

ll:_I Renewed motion, at 14. 

12/ Renewed motion, at 14. 

1356 
The Secretary's argument is not persuasive. UP&L does not 

dispute "that it has been the owner of the coal mineral rights 

for the Wilberg Mine since 1976; or that it contracted with Emery 

to operate the mine; or that it had an engineer present at the 

mine; or that it purchased and owned the major mining equipment; 

or that it agreed upon production goals for the mine with Emery; 

or, finally, that it retained many of Emery's employees, including 

Dave Lauriski, when it eventually took over the operation of the 

mine in the spring of 1986. Nor does UP&L deny responsibility for 

the 'Total Cost of Production' for the mine. None of the facts 

asserted by the Secretary, however, indicate that on a day-to-day' 

basis, UP&L operated, controlled or supervised the production 

process at the mine. They only demonstrate that UP&L played the 

ordinary role of a mineral owner that contracts with another 

company to operate a mine for it." 13/ 

For the reasons previously discussed UP&L could not be liable 

as an operator even pursuant to the renewed motion since it was 

never (until now) cited as an operator, cooperator, or joint 

adventurer of a joint venture. In any event, the evidence relied 

on by the Secretary to establish a "close nexus" between UP&L and 

Emery would have been relevant if UP&L had been originally cited as 

an operator. But UP&L was not so cited. 

Finally, the Secretary reasserts her position that UP&L is 

liable as a successor-in-interest. The Judge specifically ruled, 

in his order of dismissal of March 9, 1988, that the successor-ininterest doctrine did not apply to UP&L. Emery Mining Corporation, 

et al, 10 FMSHRC at 353. It is unnecessary to further review this 

issue other than to reaffirm the previous holding.· 

The extensive and excellent briefs filed by the parties have 

been most helpful in assisting the Judge in his analysis of the 

issues. However, to the extent that such briefs are inconsistent 

with this order, they are rejected. 

For the reasons stated herein the following order is appropriate: 

13/ UP&L's Response to Secretary's Renewed Motion filed July 6, 

1988 at 5. 

1357 
ORD.ER 

1. Utah Power and Light Company's motion to vacate the 30 

modified citations and orders dated April 25, 1988 is granted. 

2. The 30 modified citations and orders dated April 25, 1988 

are vacated as to Utah Power and Light Company. 

3. The Secretary's renewed motion for a summary decision , against Utah Power and Light Company filed May 17, 1988 is denied. 

4. The Presiding Judge retains jurisdiction for all issues 

involving Emery Mining Corporation. 

5. The hearing on the merits will proceed as scheduled on 

October 4, 1988 in Price, Utah. 

Law Judge 

Distribution: 

Timothy M. Biddle, Esq., Thomas C. Means, Esq., Susan E. Chetlin, 

Esq. and Kevin Darken, Esq., Crowell & Moring, 1001 Pennsylvania 

Ave., N.W., Washington, D.C. 20004 (Certified Mail) 

James B. Crawford, 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 Fifteenth 

Street, N.W., Washington, D.C. 20005 (Certified Mail) 

/ot 

1358 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

703-756-6232 

September 1, 1988 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

PATRICK STANFIELD, 

Complainant 

v. 

NATIONAL MINES CORPORATION, 

Respondent 

Docket No. KENT 88-171-D 

MSHA Case No. BARB CD 88-25 

MSHA Case No. BARB CD 88-28 

Stinson No. 7 Mine 

ORDER 

Statement of the Case 

This is a discrimination proceeding filed by the Secretary 

against the respondent pursuant to section 105(c) (2) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) (2). 

On July 25, 1988, the complaining miner, Patrick Stanfield, by 

and through his private counsel, Tony Oppegard, Appalachian 

Research & Defense Fund of Kentucky, Inc., Hazard, Kentucky, 

filed a Notice of Intervention as a party in this case pursuant 

to Commission Rule 4(b), 29 C.F.R. § 2700.4(b), and requested 

that he be served with all pleadings, notices, and other papers 

filed in this matter. The cited rule provides as follows: 

2700.4 Parties 

* * * * * * * 

(b) Procedure for miners and their 

representatives to become parties--(1) Generally. 

Affected miners or their representatives may 

intervene before hearing by filing a written 

notice with the Executive Director, Federal Mine 

Safety and Health Review Commission, 1730 K Street, 

N.W., Sixth Floor, Washington, D.C. 20006. The 

Executive Director shall forthwith mail a copy of 

the notice to all parties. Affected miners or 

their representatives mav intervene after the 

start of the hearing upon just terms and for good 

cause shown. 

1359 
(2) Special procedure for discrimination 

proceedings. In a proceeding instituted by the 

Secretary under § 2700.40, the complaining miner, 

applicant for employment or representative of 

miners may intervene and present additional evidence on his own behalf. 

On July 29, 1988, the Secretary filed an objection to 

Mr. Stanfield's intervention as a party, and stated that while 

she does not object to Mr. Stanfield's intervention as provided 

for by section 105(c) (2) of the Act, and Commission Rule 4(b) (2), 

29 C.F.R. § 2700.4(b) (2), she does object to the designation of 

party status for Mr. Stanfield, and to his participation in this 

case beyond that which is specifically set out in the cited 

statutory section and Commission procedural rule. 

Section 105(c) (2) of the Act states as follows: 

The complaining miner, applicant, or representative of miners may present additional evidence on 

his own behalf during any hearing held pursuant to 

this paragraph. 

Commission Rule 4(b) (2), 29 C.F.R. § 2700.4(b) (2), provides 

as follows: 

Special Procedure for Discrimination 

Proceedings: In a proceeding instituted by the 

Secretary under § 2700.40, the complaining miner, 

applicant for employment or representative of 

miners may intervene and present additional evidence on his own behalf. 

On August 1, 1988, Mr. Oppegard filed a response to the 

Secretary's objection, and asserted that contrary to the position taken by the Secretary, Commission Rule 4(a), 29 C.F.R. 

§ 2700.4(a), provides party status for 'an affected miner such 

as Mr. Stanfield upon intervention. The cited rule provides 

in relevant part as follows: 

(a) ~arty status. Persons, including the 

Secretary and operators, who are na,med as parties or 

permitted to intervene, are parties. A miner .. 

who has filed a complaint with the Secretary or 

Commission under sections 105(c) or 111 of the Act 

. and an affected miner . • . who has become a 

party in accordance with paragraph (b) of this 

section, are parties. (Emphasis added). 

1360 
Discussion 

· Although given an opportunity to respond to the party 

status issue raised by the Secretary and Mr. Stanfield's counsel, 

the respondent has taken no position on this question. The 

Secretary's position is that while Mr. Stanfield may intervene 

in this matter, his participation is limited to the presentation 

of additional evidence at the hearing on his own behalf. 

In a further response received from Mr. Oppegard on 

August 23, 1988, clarifying his position, he points out that 

pursuant to the Commission rules, an affected miner such as 

Mr. Stanfield, may intervene before hearing as a matter of 

right, and need not move the Court for permission to intervene, 

as required by parties other than affected miners. Mr. Oppegard 

seeks an opportunity for a more expansive role by Mr. Stanfield 

in the pursuit of his discrimination claim, while at the same 

time recognizing the fact that the Secretary is chiefly responsible for the prosecution of this proceeding. 

Mr. Oppegard takes the position that when Congress and the 

Commission determined that miners are allowed to intervene and 

to "present additional evidence on their own behalf," they did 

not intend to deny miners the tools to protect their interests, 

nor did they intend to deny them dues process. Mr. Oppegard 

points out that party status is critical to Mr. Stanfield 

because pursuant to the Commission's procedural rules, parties 

have the right to obtain discovery, to take depositions, to 

serve interrogatories and requests for production of documents, 

to subpoena witnesses, and to submit rebuttal evidence and to 

cross-examine witnesses at the hearing. By limiting 

Mr. Stanfield's participation to the presentation of additional 

evidence on his own behalf during any hearing, Mr. Oppegard 

suggests that Mr. Stanfield's participation will be less than 

meaningful, and would deny him the full participatory rights 

afforded other parties in proceedings of this kind. Without 

these rights, Mr. Oppegard believes that Mr. Stanfield's participation as an intervenor "would be hollow indeed." 

CONCLUSION AND ORDER 

After careful consideration of the arguments presented by 

the parties, I conclude and find that Mr. Cppegard's position is 

correct. Since Mr. Stanfield has intervened in this matter pursuant to Commission Rule 4(b), it seems clear to me that he 

should be accorded party status pursuant to Commission Rule 4(a), 

and IT IS SO ORDERED. 

A/ /:; /?-~ -h- /';~{ff:out~ 

~~:~istrative Law Judge 

1361 
Distribution: 

Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Charles Baird, Esq., 415 Second Street, Post Office Box 351, 

Pikeville, KY 41501 (Certified Mail) 

Tony Oppegard,_ Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., P.O. Box 360, Hazard, KY 40701 (Certified Mail) 

/fb 

1362 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW. &TH FLOOR 

WASHINGTON. D.C. 20006 

September 7, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND·. HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

COLUMBIA PORTLAND CEMENT 

COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 88-54-M 

: A.C. No. 33-03990-05521 . . 

. . 

. . 

Jonathan Limestone Mine 

ORDER OF APPROVAL AND ORDER TO PAY FOR ONE SETTLEMENT 

ORDER OF DISAPPROVAL AND ORDER TO SUBMIT 

INFORMATION FOR NINETEEN SETTLEMENTS 

Before: Judge Merlin 

This case is a petition for the imposition of civil 

penalties for 20 violations originally assessed at $20 each 

for a total of $400. The proposed settlements are for the 

original amounts. As set forth herein, I approve one of the 

recommended settlements based upon information contained in 

the citation, but I am unable to approve the remaining 19 

because the present record contains insufficient information. 

Citation No. 3058714 

According to the Solicitor, this citation was issued fdr 

a violation of 30 C.F.R. § 56.14006, because the guard for the 

self-cleaning tail pulley on the No. 9 auxiliary belt conveyor 

was not securely in place while the machine was in operation. 

The Solicitor asserts: "The probability of the occurrence of 

an event against which the cited standard is directed was 

unlikely. The gravity of projected injury had an incident 

occurred could result in permanent disability. The operator 

exhibited moderate negligence· in not guarding the belt 

conveyor." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions. Therefore, I have no basis to accept his representations. Although 

the citation recites that the belt was not in operation, it 

1363 
further states the electrical circutt was energized. More 

information is needed for me to make a determination on 

gravity. Also, under such circumst~nces where likelihood is 

not explained, I have particular difficulty in approving a $20 

penalty when the Solicitor tells me the projected injury is 

permanent disability. 

Citation No. 3058715 

According to the Solicitor, this citation w~s issued for 

a violation of 30 C.F.R. § 56.9022, because berms were not 

provided for the outer banks of the elevated roadway leading 

to the hopper above the auxiliary No.· 9 belt conv~yor for a 

distance of approximately 15 feet. The Solicitor asserts: 

"The probability of the occurrence of an event against which 

the cited standard is directed was unlikely. The gravity of 

projected injury had an accident occurred could result in 

permanent disability. The operator exhibited moderate negligence in not providing a berm for the elevated roadway." 

The Solicitor gives no reasons for any of the foregoing 

conclusions, but the citation state~that the roadway was not 

being used at this time. On this basis I find the violation 

was non-serious and approve the $20 settlement. 

Citation No. 3059190 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12025, because the conduit used 

as a grounding conductor for the stop switch on the No. 9 

auxiliary feed belt located at the finishing mill was broken 

in two places. The' Solicitor asserts: "The probability of 

the occurrence of an event against w~ich the cited standard is 

directed was unlikely. The gravity of projected injury had an 

accident occurred could result in lost workdays or restricted 

duty. The operator exhibited moderate negligence in not providing adequate protection for the grounding conductor." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, 

especially likelihood of occurrence. Therefore, I have no 

basis to accept his representations. 

Citation No. 305g192 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12032, because the junction box 

cover for the tailing screw beside the No. 2 elevator in the 

basement of the baghouse was missing exposing the conductors 

to damage. The Solicitor asserts: "The probability of the 

1364 
occurrence of an event against which the cited standard is 

directed was unlikely. The gravity of projected injury had an 

incident occurred could result in a fatality. The operator 

was moderately negligent in not adequately covering the 

junction box." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, 

especially likelihood of occurrence. Therefore, I have no 

basis to accept his representations. Also, under such circumstances where likelihood is not explained, I have particular 

difficulty in approving a $20 penalty when the Solicitor tells 

me the projected injury is fatal. 

Citation No. 3059193 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12025, because the 120 volt fan 

located at the loading dock door of the bag storage room was 

not equipped with a grounding conductor. The Solicitor 

asserts: "The probability of the occurrence of an event 

against which the cited standard is directed was unlikely. 

The gravity of projected injury in the event of an accident 

could result in permanent disability. The operator exhibited 

moderate negligence in not equipping the fan with a grounding 

conductor." 

using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis 

to accept his representations. Additionally, the Solicitor 

incorrectly represents the gravity of this citation. The 

citation lists gravity as lost workdays or restricted duty, 

although the Solicitor represents it as permanent disability. 

Citation No. 3059194 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12025, because the conduit on 

the alarm switch at the No. 5 packer station in the baghouse 

was broken. The citation recites that the condition put added 

strain on the connections in the switch. The Solicitor 

asserts: "The probability of the occurrence of an event 

against which the cited standard is ctirected was unlikely. 

The gravity of projected injury had an accident occurred could 

have resulted in lost workdays or restricted duty. The operator exhibited moderate negligence in not having repaired the 

broken conduit." 

1365 
using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, 

especially likelihood of occurrence. Therefore, I have no 

basis to accept his representations. 

Citation No. 3059196 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12025, because the conduit 

holding the light outside of the car shop was broken. The 

Solicitor asserts: "The probability of the occurrence of an 

event against.which the cited standard is directed was 

unlikely. The gravity of projected injury had an accident 

occurred could have resulted in lost workdays or restricted 

duty. The operator exhibited moderate negligence in not 

having repaired the broken conduit." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, 

especially likelihood of occurrence. Therefore, I have no 

basis to accept his repre~entations. 

Citation No. 3058720 

According to this Solicitor, this citation was issued for 

a violation of 30 C.R.R. § 56.11001, because a spill of 

limestone had accumulated on the first landing below the top 

floor of the raw mill building. The citation recites that the 

condition put excess weight on the floor. The Solicitor 

asserts: "The probability of the occurrence of an event 

against which the cited standard is directed was unlikely. 

The gravity of projected injury had an accident occurred could 

have resulted in lost workdays or restricted duty. The operator exhibited moderate negligence in not cleaning the spilled 

limestone." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, 

especially likelihood of occurrence. Therefore, I have no 

basis to accept his representations. 

Citation No. 3059385 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12028, because the continuity 

and resistance of the grounding system for the plants and mine 

had not been tested on an annual basis. The last date of test 

was March 10, 1986. The Solicitor asjerts: "The probability 

of the occurrence of an event against which the cited standard 

1366 
is directed was unlikely. The gravity of projected injury in 

the.event of an accident could be fatal. The operator 

exhibited moderate negligence in not conducting the annual 

testing in a timely manner." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, 

especially likelihood of occurrence. Therefore, I have no 

basis to accept his representations. Also, under such circumstances where likelihood is not explained, I have particular 

difficulty in approving a $20 penalty when the Solicitor tells 

me the projected injury is fatal. 

Citation No. 3059386 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12034, because the 110-volt 

light bulb on the extension light in the machine shop was not 

guarded. The light was 4 feet above the floor and presented a 

burn hazard. The Solicitor asserts: "The probability of the 

occurrence of an event against which the cited standard is 

directed was unlikely. The gravity of projected injury in the 

event of an accident could result in lost workdays or 

restricted duty. The operator exhibited moderate negligence 

in not guarding the light." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, 

especially likelihood of occurrence. Therefore, I have no 

basis to accept his representations. 

Citation No. 3059388 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12008, because the 440-volt 

cables did not enter the metal frame of the No. 3 motor 

control center through proper bushings and fittings. The 

motor control center was located on the fourth floor of the 

raw mill. The Solicitor asserts: "The probability of the 

occurrence of an event against which the cited standard is 

directed was unlikely. The gravity of projected injury in the 

event of an accident could result in lost workdays or 

restricted duty. The operator exhibited moderate negligence 

in not providing proper insulation." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, 

especially likelihood of occurrence. Therefore, I have no 

basis to accept his representations. 

1367 
Citation No. 3059422 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.420l(a)tl), because the fire 

extinguishers located in the raw mill were not inspected on a 

monthly basis. The Solicitor asserts: 11 The probability of 

the occurrence of an event against which the cited standard is 

directed was unlikely. The gravity of projected injury in the 

event of an accident could result in lost workdays or 

restricted duty. The operator exhibited moderate negligence 

in not checking the fire extinguishers on a month+y basis." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, 

especially likelihood of occurrence. Therefore, I have no 

basis to accept his representations. Additionally, the 

Solicitor incorrectly represents the gravity of this citation. 

The citation lists gravity as no lost workdays, although the 

Solicitor represents it as lost workdays or restricted duty. 

Citation No. 3059392 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12020, because an insulation mat 

was not provided for the disconnect switches and breaker controls located in the basement of the packhouse. The Solicitor 

asserts: 11The probability of the occurrence of an event 

against which the cited standard is directed was unlikely. 

The gravity of projected injury in the event of an accident 

could result in lost workdays or restricted duty. The operator exhibited moderate negligence in not providing an 

insulation mat." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefo~e, I have no basis 

to accept his representations. Additionally, the Solicitor 

incorrectly represents the gravity of this citation. The 

citation lists gravity as fatal, although the Solicitor 

represents it as lost workdays or restricted duty. Finally, 

under such circumstances where likelihood is not explained, I 

have particular difficulty in approving a $20 penalty when the 

citation indicates the projected injury is fatal. 

Citation No. 3059393 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12034, because guards were not 

1368 
provided for two light bulbs in the west tunnel of the packhouse •. The light bulbs were approximately 5 feet above the 

walkway. The Solicitor asserts: "The probability of the 

occurrence of an event against which the cited standard is 

directed was unlikely. The gravity of projected injury in the 

event of an accident could result in lost workdays or 

restricted duty. The operator exhibited moderate negligence 

in not providing guards for the light bulbs." 

Using the same language each 

facts or rationale to support any 

cially likelihood of occurrence. 

to accept his representations. 

time, the Solicitor gives no 

of these conclusions, espeTherefore, I have no basis 

Citation No. 3059394 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12025, because the grounding 

conductor on the motor for the fan in the packhouse was not 

adequately affixed. The Solicitor asserts: "The probability 

of the occurrence of an event against whicn the cited standard 

is directed was unlikely. The gravity of projected injury in 

the event of an accident could result in lost workdays or 

restricted duty. The operator exhibited moderate negligence 

in allowing this violation to exist." 

Using the same language each 

facts or rationale to support any 

cially likelihood of occurrence. 

to accept his representations. 

time, the Solicitor gives no 

of these conclusions, espeTherefore, I have no basis 

Citation No. 3059397 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12020, because an insulation mat 

was not provided on the concrete floor in the motor control 

center for the precipitator building. The Solicitor asserts: 

"The probability of the occurrence of an event against which 

the cited standard is directed was unlikely. The gravity of 

projected injury in the event of an accident could result in 

lost workdays or restricted duty. The operator exhibited 

moderate negligence in not providing an insulation mat." 

Using the same language each 

facts or rationale to support any 

cially likelihood of occurrence. 

to accept his representations. 

1369 

time, the Solicitor gives no 

of these conclusions, espeTherefore, I have no basis 
Citation No. 3059398 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12030, because the conduit for 

the motor for the No. 5 side gather up screw conveyor was 

broken in two places. The Solicitor asserts: "The probability of the occurrence of an event against which the cited 

standard is directed was unlikely. The gravity of projected 

injury in the event of an accident could result in lost workdays or restricted duty. The operator exhibited moderate 

negligence in allowing this violation to exist." 

Using the same language each 

facts or rationale to support any 

cially likelihood of occurrence. 

to accept his representations. 

time, the Solicitor gives no 

of these conclusions, espeTherefore, I have no basis 

Citation No. 3059423 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.4102 because an accumulation of 

oil on the floor of the compressor room in the basement of the 

packhouse. The citation recites that the oil had run under 

and into the 440-volt electrical motor control panel, creating 

a fire hazard. The Solicitor asserts: "The probability of 

the occurrence of an event against which the cited standard is 

directed was unlikely. The gravity of projected injury in the 

event of an accident could result in lost workdays or 

restricted duty. The operator exhibited moderate negligence 

in allowing this violation to exist." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis 

to accept his representations. Although the citation recites 

that a fire extinguisher was nearby, more information is 

needed for me to make a determination on gravity since the oil 

had spread under the electrical panel. -

Citation No. 3059424 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.17001, because illumination was 

not sufficient to provide safe working conditions in the east 

tunnel of the packhouse. Light bulbs were either missing or 

burned out for a distance of approximately 80 feet. The 

Solicitor asserts: "The probability of-t.he occurrence of an 

event against which the cited standard is directed was 

unlikely. The gravity of projected injury in the event of an 

1370 
accident could result in lost workdays or restricted duty. 

The operator exhibited moderate negligence for allowing the 

violation to exist." 

Using the same language each 

facts or rationale to support any 

cially likelihood of occurrence. 

to accept his representations. 

time, the Solicitor gives no 

of these conclusions, espeTherefore, I have no basis 

Citation No. 3059404 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12032, because the cover plate 

on the junction box at the head pulley of the coal incline 

belt was missing. The citation recites that the condition 

exposed conductors on the junction box to damage at the head 

pulley of the incline belt. The Solicitor asserts: "The 

probability of the occurrence of an event against which the 

cited standard is directed was unlikely. The gravity of 

projected injury in the event of an accident could result in 

lost workdays or restricted duty. The operator exhibited 

moderate negligence in allowing this violation to exist." 

Using the same language each 

facts or rationale to support any 

cially likelihood of occurrence. 

to accept his representations. 

time, the Solicitor gives no 

of these conclusions, espeTherefore, I have no basis 

Discussion of Settlement Disapprovals 

The conclusions which the Solicitor uses each time regarding probability of occurrence are, of course, intended to 

satisfy the Secretary of Labor's regulation for single penalty 

assessments (30 C.F.R. § 100.4). In effect, a single penalty 

assessment of $20 is available under this rule, if the violation is not "significant and substantial," as that term of art 

has been interpreted by the Commission in contest cases under 

section 104(d) of the Act. 30 U.S.C. § 814(d). Due to the 

absence of any data or reasoning to support his bare assertions, it appears that the Solicitor in this case has not 

satisfied the Secretary's requirements for imposition of a $20 

penalty. 

However, the issue in this case is not whether the 

Secretary of Labor's regulations are met. It is well established that penalty proceedings before the Commission are 

de novo. Neither the Corrunission nor its Judges are bound by 

the Secretary's regulations or proposed penalties. Rather, 

they must determine the appropriate amount of penalty, if any, 

1371 
in accordance with the six criteria set forth in section 

llO(i) of the Act. 30 u.s.C. § 820(k). Sellersburg Stone 

Company v. Federal Mine Safety and Health Review Commission, 

736 F.2d 1147 (7th Cir. 1984). Wilmot Mining Company, 

9 FMSHRC 686 (April 1987). U.S. Steel, 6 FMSHRC 1148 (May 

19 84). 

The Commission and its Judges bear a hea~1y responsibility 

in settlement cases pursuant to section llO(k) of the Act, 

30 U.S.C. § 820(k), which provides: 

Ck) No proposed penalty which has been 

contested before the Commission under section 

105(a) shall be compromised, mitigated, or 

settled except with the approval of the 

Commission. * * * 

The legislative history makes clear Congress' intent in 

this respect: See S. Rep. No. 95-181, 95th Cong., 1st Sess., 

44-45 (1977), reprinted in Senate Subcommittee on Labor, 

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

Legislative History of the Federal Mine Safety and Health Act 

of 1977, at 632-633 (1978). 

In order to support his settlement recommendations, the 

Solicitor must present the Commission Judge with information 

sufficient to satisfy the six statutory criteria in section 

llO(i) with respect to the instant citations. I accept the 

Solicitor's statistics regarding history and in absence of any 

evidence to the contrary, I accept his representations regarding good faith abatement and ability to continue in business. 

However, the Solicitor's representation of the operator 

as small in size cannot be accepted on the present record. 

The Proposed Assessment sheet gives the company's annual hours 

worked as 1,088,152 and the mine's annual hours worked as 

417,735. The Solicitor should explain why he believes the 

operator is small. 

No information is given to support the Solicitor's representation that in all these citations, the operator was guilty 

of moderate negligence. The Solicitor has merely relied upon 

the box checked by the inspector on the citation. Accordingly, 

on the critical statutory criterion of negligence, I have no 

basis to make the necessary determinations for nineteen of the 

citations, as set forth above. 

So too, in these nineteen citations no information is 

given for me to make findings on gravity. As already noted, 

1372 
the Solicitor's unsupported representations relate to "significant and substantial" not "gravity." The Commission has 

pointed out that although the penalty criterion of "gravity" 

and the "significant and substantial" nature of a violation 

are not identical, they are based frequently upon the same or 

similar factual considerations. Quinland Coals, Inc., 

9 FMSHRC 1614, 1622 n. 11 (September 1987). Youghiogheny and 

Ohio Coal Company, 9 FMSHRC 2007, 2013 (December 1987). Here 

no factual considerations have been given upon which I can 

decide gravity. A violation conceivably could possess some 

degree of gravity, but still not rise to the level of significant and substantial. As a general matter, $20 would appear 

to be a nominal penalty appropriate for a non-serious violation, in absence of other unusual circumstances. But here 

again, the Solicitor has merely relied upon the box checked by 

the inspector on the citation. Accordingly, for the crucial 

statutory criterion of gravity, I have no basis to make the 

necessary determinations. 

In light of the foregoing, the recommended settlements 

for 19 citations cannot be accepted on the present record. 

ORDER 

Accordingly, it is Ordered that the recommended settlement 

of $20 be Approved for the following citation: 

Citation No. 3058715 

It is further Ordered the operator pay $20 for this 

citation within 30 days from the date of this decision. 

It is further Ordered that the recommended set~lements be 

Disapproved and that within 30 days from the date of this 

order, the Solicitor submit sufficient information for me to 

make proper settlement determinations under the Act with 

respect to the following 19 citations: 

Citation No. 3058714 

Citation No. 3059190 

Citation No. 3059192 

Citation No. 3059193 

Citation No. 3059194 

Citation No. 3059196 

Citation No. 3058720 

Citation No. 3059385 

Citation No. 3059386 

Citation No. 3059388 

Citation No. 3059422 

1373 
Citation No. 3059392 

Citation No. 3059393 

Citation No. 3059394 

Citation No. 3059397 

Citation No. 3059398 

Citation No. 3059423 

Citation No. 3059424 

Citation No. 3059404 

--

Distribution: 

Christopher J. Carne~, Esq., Office of the Soli~itor, U.S. 

Department of Labor, 881 Federal Office Building, 1240 East 

Ninth Street, Cleveland, OH 44199 (Certified Mail) 

Michael M. Roman, Vice President, Industrial Relations, 

Columbia Portland Cement Company, P.O. Box 1531, Zanesville, 

OH 43701 (Certified Mail) 

/f b 

1374 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 7, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V;. 

COLUMBIA PORTLAND CEMENT 

COMPANY, 

Respondent 

: CIVIL PENALTY PROCEEDING . . 

: Docket No. LAKE 88-55-M 

: A.C. No. 33-03990-05522 . . 

: Jonathan Limestone Mine 

. . 

. . 

. . 

ORDER OF APPROVAL AND ORDER TO PAY FOR FOUR SETTLEMENTS 

ORDER OF DISAPPROVAL AND ORDER TO SUBMIT 

INFORMATION FOR SIXTEEN SETTLEMENTS 

Before: Judge Merlin 

This case is a petition for the imposition of civil 

penalties for 20 violations originally assessed at $20 each 

for a total of $400. The proposed settlements are for the 

original amounts. As set forth herein, I approve four of the 

recommended settlements based upon information contained in 

the citations, but I am unable to approve the remaining 16 

because the present record contains insufficient information. 

Citation No. 3059412 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12008, because the feed cable 

for the portable reducing transformer located on the burner 

floor did not enter the metal frame through proper bushings 

and/or fittings. The Solicitor asserts: "The probability of 

the occurrence of an event against which the cited standard is 

directed was unlikely. The gravity of projected injury in the 

event of an accident could be fatal. The operator exhibited 

moderate negligence in allowing this violation to exist." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis 

to accept his representations. Also, under such circumstances 

where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor tells me 

the projected injury is fatal. 

1375 
Citat~on No. 3059413 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12025, because the grounding 

jumper around the flexible conduit on.the motor of the No. 5 

separator in the finishing mill was not connected to the frame 

of the motor. The Solicitor asserts: "The probability of the 

occurrence of an event against which the cited standard is 

directed was unlikely. The gravity of projected injury in the 

event of an accident could be fatal. The operator exhibited 

moderate negligence in allowing this violation to exist." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis 

to accept his representations. Also, under such circumstances 

where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor tells me 

the projected injury is fatal. 

Citation No. 3059414 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12008, because the 440-volt feed 

cable for the portable welder in the car shop did not enter 

the metal frame of the welder through. proper fittings and/or 

bushings. The Solicitor asserts: "The probability of the 

occurrence of an event against which the cited standard is 

directed was unlikely. The gravity of projected injury in the 

event of an accident could be fatal. The operator exhibited 

moderate negligence in allowing this violation to exist." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis 

to accept his representations. Also, under such circumstances 

where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor tells me 

the projected injury is fatal. 

Citation No. 3059430 

According to the Solicitor, this.citation was issued for 

a violation of 30 C.F .• R. § 56.14007, because the guard for the 

V-belt motor for the separator above the No. a finish mill was 

not of substantial construction in that the back of the guard 

was missing. The Solicitor asserts: "The probability of the 

occurrence of an event against which the cited standard is 

directed was unlikely. The gravity of projected injury in the 

event of an accident could result in permanent disability. 

1376 
The operator exhibited moderate negligence in allowing this 

violation to exist." 

The Solicitor gives no reasons for any of the foregoing 

conclusions, but the citation states the drive was not in operation. On this basis, I find the violation was non-serious 

and approve the $20 settlement. 

Citation No. 3059431 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.14006, because the guard was not 

in place for the coupling between the motor and gear drive on 

the main feed belt for the No. 8 belt feed located in the 

finish mill. The Solicitor asserts: "The probability of the 

occurrence of an event against which the cited standard is 

directed was unlikely. The gravity of projected injury in the 

event of an accident could result in permanent disability. 

The operator exhibited moderate negligence in allowing this 

violation to exist." 

The Solicitor gives no reasons for any of the foregoing 

conclusions, but the citation states the belt was not in operation. On this basis, I find the violation was non-serious 

and approve the $20 settlement. 

Citation No. 3059432 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.14006, because the guard was not 

i~ place for the coupling between the motor and chain drive 

for the gyp belt feeder for the No. 7 mill. The Solicitor 

asserts: "The probability of the occurrence of an event 

against which the cited standard is directed was unlikely. 

The gravity of projected injury in the event of an accident 

could result in permanent disability. The operator exhibited 

moderate negligence for allowing this violation to exist." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis 

to accept his representations. Also, under such circumstances 

where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor tells me 

the projected injury is permanent disability. 

Citation No. 3059434 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.14006, because the guard for the 

1377 
tail pulley on the main gyp and clinker feet belt conveyor was 

not in place. The Solicitor asserts: "The probability of the 

occurrence of an event against which the cited standard is 

directed was unlikely. The gravity of projected injury in the 

event of an accident could result in permanent disability. 

The operator exhibited moderate negligence in allowing this 

violation to exist." 

The Solicitor gives no reasons for any of the foregoing 

conclusions, but the citation states the belt was not in 

motion. On this basis, I find the violation was non-serious 

and approve the $20 settlement. 

Citation No. 3059435 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.14006, because the guard for the 

sawblade for the electrical saw located in the car shop was 

not in place. The Solicitor asserts that "The probability of 

the occurrence of an event against which the cited standard is 

directed was unlikely. The gravity of projected injury in the 

event of an accident could result in permanent disability. 

The operator exhibited moderate negligence in allowing this 

violation to exist." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis 

to accept his representations. Although the citation recites 

that the saw was not being used, it further states that the 

motor was energized. More intormation is needed for me to 

make a determination on gravity. Also, under such circumstances where likelihood is not explained, I have particular 

difficulty in approving a $20 penalty wnen the Solicitor tells 

me the projected injury is permanent disability. 

Citation No. 3059418 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12020, because the breaker and 

control box for the pump at the settling pond was not provided 

with a dry wooden platform or insulatien mat. The Solicitor 

asserts: "The probability of the occurrence of an event 

against which the cited standard is directed was unlikely. 

The gravity of projected injury in the event of an accident 

could be fatal. The operator exhibited moderate negligence in 

allowing this violation to exist." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, espe~ 

cially likelihood of occurrence. Therefore, I have no basis 

1378 
to accept his representations. Also, under such circumstances 

where likelihood is not explained, I have particular difficulty in approving a $20 penalty when the Solicitor tells me 

the projected injury is fatal. 

Citation No. 3059436 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.11001, because safe means of. 

access was not provided for the operator of the haul truck 

being used to transport dust in that the ladder used to climb 

in and out of the truck was not substantially constructed so 

as to provided safe access. The Solicitor asserts: "The probability of the occurrence of an event against which the cited 

standard is directed was unlikely. The gravity of projected 

injury in the event of an accident could result in permanent 

disability. The operator exhibited moderate negligence in 

allowing this violation to exist." 

Using the same language each time,_ the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis 

to accept his representations. Also, under such circumstances 

where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor tells me 

the projected injury is permanent disability. 

Citation No. 3059439 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.14006, because a guard was not 

provided for the chain drive on the dribble belt conveyor. 

The Solicitor asserts: "The probability of the occurrence of 

an event against which the cited standard is directed was 

unlikely. The gravity of projected injury in the event of an 

accident could result in lost workdays or restcicted duty. 

The operator exhibited moderate negligence in allowing this 

violation to exist." 

The Solicitor gives no reason for any of the foregoing 

conclusions, but the citation state that the 0elt was not in 

motion. On this basis, I find the violation was non-serious 

and approve the $20 settlement. 

Citation No. 3059441 

According to the Solicitoc, this citation was issued for 

a violation of 30 C.F.R. ,§ 56.12020, because a wooden platform 

or insulation mat was not provided for the controls at the 

1379 
3 inch water pump. The Solicitor asserts: "The probability 

of the occurrence of an event against which the cited standard 

is directed was unlikely. The gravity of projected injury in 

the event of an accident could be fatal.· The operator 

exhibited moderate negligence in allowing this violation to 

exist." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis 

to accept his representations. Also, under such circumstances 

where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor tells me 

the projected injury is fatal. 

Citation No. 305~442 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12025, because the grounding 

conductor was not connected to the frame of the portable light 

located in the underground shop. The Solicitor asserts: "The 

probability of the occurrence of an event against which the 

cited standard is directed was unlikely. The gravity of 

projected injury in the event of an accident could be fatal. 

The operator exhibited moderate negligence in allowing this 

violation to exist." 

using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis 

to accept his representations. Also, under such circumstances 

where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor tells me 

the projected injury is fatal. 

Citation No. 3059445 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12020, because a dry wooden 

platform or insulation mat was not provided for the controls 

on the #3250 portable water pump. The Solicitor asserts: 

"The probability of the occurrence of an event against which 

the cited standard is directed was unlikely. The gravity of 

projected injury in the event of an accident could be fatal. 

The operator exhibited modarate negligence in allowing this 

violation to exist." 

using the same language each time~ the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis 

1380 
to accept his representations. Also, under such circumstances 

where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor tells me 

the projected injury is fatal. 

Citation No. 3059446 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12020, because a wooden platform 

or insulation mat was not provided for the controls at the 

high pressure wash bay located at the underground wash station. 

The Solicitor asserts: "The probability of the occurrence of 

an event against which the cited standard is directed was 

unlikely. The gravity of projected injury in the event of an 

accident could be fatal. The operator exhibited moderate 

negligence in allowing this violation to exist." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis 

to accept his representations. Also, under such circumstances 

where likelihood is not explained, I have particular difficulty in approving a $20 penalty when the Solicitor tells me 

the projected injury is fatal. 

Citation No. 3059448 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12030, because the 440-volt feed 

cable to the main exhaust fan located at the underground 

crusher station was damaged and had a conductor showing 

through. The Solicitor asserts: "The probability of the 

occurrence of an event against which the cited standard is 

directed was unlikely. The gravity of projected injury in the 

event of an accident could be fatal. The operator exhibited 

moderate negligence in allowing this violation to exist." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis 

to accept his representations. Also, under such circumstances 

where likelihood is not explained, I have particular diff icul ty in approving a $20 penalty when the Solicitor tells me 

the projected injury is fatal. 

Citation No. 3059450 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12025, because the conduit used 

as a grounding conductor for the 110-volt light in the walkway 

1381 
of the underground bin conveyor was broken. The Solicitor 

asserts: ... The probability of the occurrence of an event 

against which the cited standard is directed was unlikely. 

The gravity of projected injury in the event of an accident 

could be fatal. The operator exhibited moderate negligence in 

allowing this violation to exist." 

using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis 

to accept his representations. Also, under such circumstances 

where likelihood is not explained, I -have particular difficulty in approving a $20 penalty when the Solicit6r tells me 

the projected injury is fatal. 

Citation No. 3059452 

According to the Solicitor, this=citation was issued for 

a violation of 30 C.F.R. § 56.12025, because the conduit used 

for a grounding conductor for the 110-volt outlet at the top 

landing for the underground rnan lift was broken. The 

Solicitor asserts: "The probability of the occurrence of an 

event against which the cited standard is directed was 

unlikely. The gravity of projected injury in the event of an 

accident could be fatal. The operator exhibited moderate 

negligence in allowing this violation to exist." 

' using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis 

to accept his representations. Also, under such circumstances 

where likelihood is not explained, I have particular diff iculty in approving a $20 penalty when the Solicitor teils me 

the projected injury is fatal. 

Citation No. 3059453 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12032, because the cover plate 

for the junction box located near the walkway for the 4A belt 

was missing, thereby exposing the conductor to damage. The 

Solicitor asserts: "The probability o~ the occurrenc~ of an 

event against which the cited standard is directed was 

unlikely. The gravity of projected injury in the event of an 

accident could be fatal. The operator exhibited moderate 

negligence in allowing this violation to exist." 

using the same language each time, the Solicitor gives no 

facts or rationale to support any of the_se conclusions, especially likelihood of occurrence. Therefore, I have no basis 

1382 
to accept his representations. Also, under such circumstances 

where likelihood is not explained, I have particular difficulty in approving a $20 penalty when the Solicitor tells me 

the projected injury is fatal. 

Citation No. 3059454 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12025, because the conduit used 

as a grounding conductor was broken on the 4A underground belt 

conveyor. The Solicitor asserts: "The probability of the 

occurrence .of an event against which the cited standard is 

directed was unlikely. The gravity of projected injury in the 

event of an accident could be fatal. The operator exhibited 

moderate negligence in allowing this violation to exist." 

Using the same language each time, the Solicitor gives no 

facts or rationale to support any of these conclusions, especially likelihood of occurrence. Therefore, I have no basis 

to accept his representations. Also, under such circumstances 

where likelihood is not explained, I have particular difficulty in approving a $20 penalty when the Solicitor tells me 

the projected injury is fatal. 

Discussion of Settlement Disapprovals 

The conclusions which the Solicitor uses each time regarding probability of occurrence are, of course, intended to 

satisfy the Secretary of Labor's regulation for single penalty 

assessments (30 C.F.R. § 100.4). In effect, a single penalty 

assessment of $20 is available under this rule, if the violation is not "significant and aubstantial," as that term of art 

has been interpreted by the Commission in contest cases under 

section 104(d) of the Act. 30 U.S.C. § 814(d). Due to the 

absence of any data or reasoning to support his bare assertions, it appears that the Solicitor in this case has not even 

satisfied the Secretary's requirements for imposition of a $20 

penalty. 

However, the issue in this case is not whether the 

Secretary of Labor's regulations are met. It is well established that penalty proceedings before the Commission are 

de novo. Neither the Commission nor its Judges are bound by 

the Secretary's regulations or proposed penalties. Rather, 

they must determine the appropriate amount of penalty, if any, 

in accordance with the six criteria set forth in section 

llO(i) of the Act. 30 U.S.C. § 820(i). Sellersburg Stone 

Company v. Federal Mine Safety and Health Review Commission, 

736 F.2d 1147 (7th Cir. 1984). Wilmot Mining Company, 

9 FMSHRC 686 (April 1987). U.S. Steel, 6 FMSHRC 1148 (May 

19 84) • 

1383 
The Commission and its Judges bear a heavy responsibility 

in settlem~nt cases pursuant to section llOCk) of the Act, 

30 u.s.c. § 820Ck), which provides: 

Ck) No proposed penalty which has been 

contested before the Commission under section 

105(a) shall be compromised, mitigated, or 

settled except with the approval of the 

Commission. * * * 

The legislative history makes clear Congress' intent in 

this respect: Sees. Rep. No. 95-181, 95th Cong., 1st Sess., 

44-45 (1977), reprinted in Senate Subcommittee on Labor, 

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

Legislative History of the Federal Mine Safety and Heal~h Act 

of 1977, at 632-633 (1978). 

In order to support his settlement recommendations, the 

Solicitor must present the Commission Judge witn information 

sufficient to satisfy the six statutory criteria in section 

llOCi) with respect to the instant citations. I accept the 

Solicitor's statistics regarding history and in absence of any 

evidence to the contrary, I accept his representations regarding good faith abatement and ability to continue in business. 

However, the Solicitor's representation of the operator 

as small in size cannot be accepted on the present record. 

The Proposed Assessment sheet gives the company's annual hours 

worked as 1,088,152 and the miner's annual hours worked as 

417,735. The Solicitor should explain why he believes the 

operator is small. 

No information is given to support the Solicitor's representation that in all these citations, the operator was guilty 

of moderate negligence. The Solicitor has merely relied upon 

the box checked by the inspector on the citation. Accordingly, 

on the critical statutory criterion of negligence, I have no 

basis to make the necessary determination for sixteen of the 

citations, as set forth above. 

So too, in these sixteen citations no information is 

given for me to make findings on gravity. As already noted, 

the Solicitor's unsupported representations relate to "significant and substantial·" not "gravity." The Commission has 

pointed out that although the penalty criterion of "gravity" 

and the "significant and substantial" nature of ~violation 

are not identical, they are based frequently upon the same or 

similar factual considerations. Quinla:nd Coals, Inc., 

9 FMSHRC 1614, 1622 n. 11 (September 1987). Youghiogheny and 

1384 
Ohio Coal Company, 9 FMSHRC 2007, 2013 (December 1987). Here 

no·factual considerations have been given upon which I can 

decide gravity. A violation conceivably could possess some 

degree of gravity, but still not rise to the level of significant and substantial. As a general matter, $20 would appear 

to be a nominal penalty appropriate for a non-serious violation, in absence of other unusual circumstances. But here 

again, the Solicitor has merely relied upon the box checked by 

the inspector on the citation. Accordingly, for the crucial 

statutory criterion of gravity, I have no basis to make the 

necessary determinations. 

In light of the foregoing, the recommended settlements 

for 16 citations cannot be accepted on the present record. 

ORDER 

Accordingly, it is Ordered that the recommended settlements of $20 be Approved for the following four citations: 

Citation No. 3059430 

Citation No. 3059431 

Citation No. 3059434 

Citation No. 3059439 

It is further Ordered the operator pay $80 for these four 

citations within 30 days from the date of this decision. 

It is further Ordered that the recommended settlements be 

Disapproved and that within 30 days from the date of this 

order, the Solicitor submit sufficient information for me to 

make proper settlement determinations under the Act with 

respect to the following 16 citations: 

Citation No. 3059412 

Citation No. 3059413 

Citation No. 3059414 

Citation No. 3059432 

Citation No. 3059435 

Citation No. 3059418 

Citation No. 3059436 

Citation No. 3059441 

Citation No. 3059442 

Citation No. 3059445 

Citation No. 3059446 

Citation No. 3059448 

Citation No. 3059450 

1385 
Citation No. 3059452 · Citation •o. 3059453 

Citation No. 3059454 

\·~ Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Christopher J. Carney, Esq., Office of the Solicitor, U.S. 

Department of Labor, 881 Federal Office Building, 1240 East 

Ninth Street, Cleveland, OH 44199 (Certified Mail) 

Michael M. Roman, Vice President, Industrial Relations, 

Columbia Portland Cement Company, P.O. Box 1531, Zanesville, 

OH 43701 (Certified Mail> 

/fb 

1386 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 7, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COLUMBIA PORTLAND CEMENT 

COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 88-58-M 

A.C. No. 33-03990-05524 

: Jonathan Limestone Mine . . 

. . 

. . 

DECISION DISAPPROVING SETTLEMENTS 

ORDER TO SUBMIT INFORMATION 

This case is a petition for the imposition of civil 

penalties for twenty citations originally assessed at $2603. 

Recommending very substantial reductions for all the violations, 

the Solicitor's proposed settlements total $1463.80. As set 

forth herein, I am unable to approve the suggested settlements 

based upon the present record. 

Citation No. 3059195 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12030, because the door on the signal 

light located at the water pump across from the bag house would 

not close, thus exposing energized parts. The citation further 

recites that employees walk and travel in the affected area. The 

original assessment for this citation was $157 and the proposed 

settlement is $88.30. The Solicitor asserts: "The probability 

of the occurrence of an event against which the cited standard is 

directed was reasonably likely. The gravity of projected injury 

had an accident occurred could be fatal. The operator 

was moderately negligent in allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $88.30. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be a fatality and that the operator was negligent? 

Under such circumstances the original assessment looks modest 

indeed. 

1387 
Citation No. 3059197 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12030, ·because the outlet located on 

the bottom of the 110-volt breaker box in the bag house was 

broken off and hanging by the conductors. The original 

assessment for this citation was $157 and the proposed settlement 

is for $88.30. The Solicitor asserts: "The probability of the 

occurrence of an event against which the cited standard is 

directed was reasonably likely. The gravity of p~ojected injury 

had an accident occurred could be fatal. The operator was 

moderately negligent in allowing this violation to exist." 

The Solicitor offers nothing to support his propo~ed 

settlement of $88.30. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be a fatality and that the operator was negligent? 

Under such circumstances the original assessment looks modest 

indeed. · · 

Citation No. 3059199 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12034, because the 110-volt light 

bulb located 3 feet from the drill press in the machine shop was 

not guarded. The original assessment for this citation was $98 

and the proposed settlement is for $55.10. The Solicitor 

asserts: "The probability of the occurrence of an event against 

which the cited standard is directed was reasonably likely. The 

gravity of projected injury had an accident occurred could result 

in lost workdays or restricted duty. The operator was moderately 

negligent in allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $55.10. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be lost workdays or restricted duty and that the 

operator was negligent? Under such circumstances the original 

assessment looks modest indeed. 

Citation No. 3059382 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12030, because the 110-volt light 

bulb located 3 feet above the drill bit and bolt bins and near 

the big shears was broken. The citation further recites that 

employees work in the affected area. ~he original assessment for 

this citation was $98 and the proposed settlement is for $55.10. 

1388 
The Solicitor asserts: "The probability of the occurrence of an 

event against which the cited standard is directed was reasonably 

likely. The gravity of projected injury had an accident occurred 

could result in lost workdays or restricted duty. The operator 

was moderately negligent in allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement. of $55.10. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be lost workdays or restricted duty and that the 

operator was negligent? Under such circumstances the original 

assessment looks modest indeed. 

Citation No. 3059383 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12030, because the bulb was missing 

from the light fixture located on the I-beam near the small drill 

press and approximately 4 feet above the floor. The citation 

further recites that employees were exposed to 110-volt energized 

parts. The original assessment for this citation was $98 and 

the proposed settlement is for $55.10. The Solicitor asserts: 

"The probability of the occurrence of an event against which the 

cited standard is directed was reasonably likely. The gravity of 

projected injury had an accident occurred could result in lost 

workdays or restricted duty. The operator was moderately 

negligent in allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $55.10. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be lost workdays or restricted duty and that the 

operator was negligent? Under such circumstances the original 

assessment looks modest indeed. 

Citation No. 3059421 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.11002, because an 8 foot section of 

handrail for the walkway at the top of the steps in the 

compressor room was not in place. Employees were exposed to 

falls of 8 feet. The original assessment for this citation was 

$126 and the proposed settlement is for $70.85. The Solicitor 

asserts: "The probability of the occurrence of an event against 

which the cited standard is directed was reasonably likely. The 

gravity of projected injury in the event of an accident could 

resulc in permanent disability. The operator exhibited moderate 

negligence for allowing this violation to exist." 

1389 
The Solicitor offers nothing to support his proposed 

settlement of $70.85. How can I approve such a small penalty 

amount when the Solicitor himself telLs me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be permanent disability and that the operator was 

negligent? Under such circumstances the original assessment 

looks modest indeed. 

Citation No. 3059395 

According·to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12030, be~ause two light bulbs were 

missing in the walkway of the east tunnel of the packhouse. The 

light bulbs were approximately six feet above the walkway. The 

citation further recites that employees were exposed to the 

110- volt energized equipment because they had to work in this 

area. The original assessment for this citation was $98 and the 

proposed settlement is $55.10. The Solicitor asserts: "The 

probability of the occurrence of an event against which the cited 

standard is directed was reasonably likely. The gravity of 

projected injury had an accident occurred could be lost workdays 

or restricted duty. The operator was moderately negligent in 

allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $55.10. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be lost workdays or restricted duty and that the 

operator was negligent? Under such circumstances the original 

assessment looks modest indeed. 

Citation No. 3059396 

According to the Solicitor, this -citation was issued for a 

violation of 30 C.F.R. § 56.12023, because grids and energized 

parts were not guarded on the controls for the elevator for the 

store rooms. The citation further recites that the voltage was 

440. The original assessment for this citation was $157 and the 

proposed settlement is $88.30. The Solicitor asserts: "The 

probability of the occurrence of an event against which the cited 

standard is directed was reasonably likely. The gravity of 

projected injury in the event of an accident could be fatal. The 

operator exhibited moderate negligence for allowing this 

violation to exist." 

The Solicitor offers nothing to ~~pport his proposed 

settlement of $88.30. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

1390 
likely the cited condition will occur and that if it does, the 

result will be a fatality and that the operator was negligent? 

Under such circumstances the original assessment looks modest 

indeed. 

Citation No. 3059399 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12030, because the thermostat box 

located in the precipitator control room was broken off the 

hanger and the.cover was missing. The original assessment for 

this citation was $98 and the proposed settlement is for $55.10. 

The Solicitor asserts: "The probability of the occurrence of an 

event against which the cited standard is directed was reasonably 

likely. The gravity of projected injury had an accident occurred 

could result in lost workdays or restricted duty. The operator 

exhibited moderate negligence for allowing this violation to 

exist." 

The Solicitor offers nothing to support his proposed 

settlement of $55.10. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be lost workdays or restricted duty and that the 

operator was negligent? Under such circumstances the original 

assessment looks modest indeed. 

Citation No. 3059425 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.11001, because safe means of access 

was not provided or maintained from the east to west sides of the 

third floor of the feedhouse in that employees were walking an 

8 inch beam to get from one side to the other. The citation 

further recites that if people fell while using this beam, they 

could fall 10 feet. The original assessment for this citation 

was $126 and the proposed settlement is for $70.85. The 

Solicitor asserts: "The probability of the occurrence of an 

event against which the cited standard is directed was reasonably 

likely. The gravity of projected injury had an accident occurred 

could be permanently disabling. The operator exhibited moderate 

negligence for allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $70.85. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be permanent disability and that the operator was 

negligent? Under such circumstances the original assessment 

looks modest indeed. 

1391 
Citation No. 3059427 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. ~ 56.9002, because the Pettibone Crane, 

equipment #29, operating in the coal mill area had a hydraulic 

oil leak. The citation recites that the oil was leaking off the 

boom, running down onto the hot exhaust and motor, creating a 

fire hazard. The original assessment for this citation was $157 

and the proposed settlement is for $88.30. The Solicitor 

asserts: "The probability of the occurrence of an event against 

which the cited standard is directed was reasonably likely. The 

gravity of projected injury had an accident occurred could result 

in lost workdays or restricted duty. The operator exhibited 

moderate negligence for allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $88.30. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be lost workdays or restricted duty and that the 

operator was negligent? Under such circumstances the original 

assessment looks modest indeed. 

Citation No. 3059405 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12030, because the junction box on 

the brake relay of the man lift located on the top floor of the 

finish mill was damaged. The original assessment for this 

citation was $157 and the proposed settlement is for $88.30. The 

Solicitor asserts: "The probability of the occurrence of an 

event against which the cited standard is directed was reasonably 

likely. The gravity of projected injury had an accident occurred 

could be fatal. The operator exhibited moderate negligence for 

allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $88.30. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be a fatality and that the- operator was negligent? 

Under such circumstances the original assessment looks modest 

indeed. \ 

\ 

Citation No. 3059406 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12023, because the 440-volt 

electrical connection on the second floor of the crane was not 

1392 
guarded. The citation further recites that employees could make 

contact with the connection. The original assessment for this 

citation was $157 and the proposed settlement is for $88.30. The 

Solicitor asserts: "The probability of the occurrence of an 

event against which the cited standard is directed was reasonably 

likely. The gravity of projected injury had an accident occurred 

could be fatal. The operator exhibited moderate negligence for 

allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $88.30. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be a fatality and that the operator was negligent? 

Under such circumstances the original assessment looks modest 

indeed. 

Citation No. 3059407 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12023, because the 440-volts grids on 

the third floor of the crane were not guarded. The citation 

further recites that employees could make contact with the grids. 

The original assessment for this citation was $157 and the 

proposed settlement is for $88.30. The Solicitor asserts: "The 

probability of the occurrence of an event against which the cited 

standard is directed was reasonably likely. The gravity of 

projected injury had an accident occurred could be fatal. The 

operator exhibited moderate negligence for allowing this 

violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $88.30. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be a fatality and that the operator was negligent? 

Under such circumstances the original assessment looks modest 

indeed. 

Citation No. 3059408 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12034, because the light bulb on the 

north side of the crane and approximately three feet above the 

floor was not guarded. The original assessment for this citation 

was $98 and the proposed settlement is for $55.10. The Solicitor 

asserts: "The probability of the occurrence of an event against 

which the cited standard is directed was reasonably likely. The 

gravity of projected injury had an accident occurred could result 

1393 
in lost workdays or restricted duty. The operator exhibited 

moderate negligence for allowing this violation to exist." 

The Solicitor offers nothing t~ support his proposed 

settlement of $55.10. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be lost workdays or restricted duty and that the 

operator was negligent? Under such circumstances the original 

assessment looks modest indeed. 

Citation No. 3059409 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12030, because the breaker handle for 

the motor of the separator in the No. 7 finish mill had been 

removed and could not be locked out. The original assessment for 

this citation is $157 and the proposed settlement is for $88.30. 

The Solicitor asserts: "The probability of the occurrence of an 

event against which the cited standard is directed was reasonably 

likely. The gravity of projected injury had an accident occurred 

could be fatal. The operator exhibited moderate negligence for 

allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $88.30. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be a fatality and that the operator was negligent? 

Under such circumstances the original assessment looks modest 

indeed. 

Citation No. 3059410 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.12030, because the back panels for 

the No. 25808 control panel in the burner control room were 

missing, exposing employees to 110-volt connections. The 

original assessment for this citation was $157 and the proposed 

settlement is for $88.30. The Solicitor asserts: "The 

probability of the occurrence of an event against which the cited 

standard is directed was reasonably likely. The gravity of 

projected injury had an accident occurred could be fatal. The 

operator exhibited moderate negligence f.or allowing this 

violation to exist." · 

The Solicitor offers nothing to support his proposed 

settlement of $88.30. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur antl that if it does, the 

1394 
result will be a fatality and that the operator was negligent? 

Under· such. circumstances the original assessment looks modest 

indeed. 

Citation No. 3059428 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.11001, because safe access was not 

provided for the walkway on the fourth floor of the finish mill 

building in that a coal spill was blocking the walkway. The 

citation further recites that employees had to travel the walkway 

and that the spill was about 6 feet by 8 feet and 5 feet high. 

The original assessment for the citation was $98 and the proposed 

settlement is for $55.10. The Solicitor asserts: "The 

probability of the occurrence of an event against which the cited 

standard is directed was reasonably likely. The gravity of 

projected injury had an accident occurred could result in lost 

workdays or restricted duty. The operator exhibited moderate 

negligence for allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $55.10. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be lost workdays or restricted duty and that the 

operator was negligent? Under such circumstances the original 

assessment looks modest indeed. 

Citation No. 3059433 

According to the Solicitor, this citation was issued for a 

violation of 30 C.F.R. § 56.14006, because the guard for the 

tailpulley on the main gyp and clinker feed belt conveyor in the 

No. 7 finish mill was not in place. The citation further recites 

that the belt was in motion, and that one person per day travels 

the walkway adjacent to the belt. The original assessment for 

this citation was $126 and the proposed settlement is for $70.85. 

The Solicitor asserts: "The probability of the occurrence of an 

event against which the cited standard is directed was reasonably 

likely. The gravity of projected injury had an accident occurred 

could be permanent disability. The operator exhibited moderate 

negligence for allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $70.85. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be permanent disability and that the operator was 

negligent? Under such circ~~stances the original assessment 

looks modest indeed. 

1395 
Citation No. 3059437 

According to the Solicitor, this citation was for a 

violation of 30 C.F.R. § 56.9003, because the primary brakes for 

the Caterpillar 992 front end loader, equipment No. 2314, were 

not adequate in that the loader could not stop within a safe 

distance when tested. The citation further recites that the 

right rear wheel cylinder had a very heavy leak with fluid 

running down onto the wheel and tire, and that the loader was 

being used to load trucks in the quarry. The original assessment 

for this violation was $126 and the proposed settlement is for 

$70.85. The Solicitor asserts: "The probability 9f the 

occurrence of an event against which the cited standard is 

directed was reasonably likely. The gravity of projected injury 

had an accident occurred could be permanent disability. The 

operator was moderately negligent in allowing this violation to 

exist." 

The Solicitor offers nothing to support his proposed 

settlement of $70.85. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, the 

result will be permanent disability and that the operator was 

negligent? Under such circumstances the original assessment 

looks modest indeed. 

Discussion of Settlement Disapprovals 

It is well established that penalty proceedings before the 

Commission are de nova. Neither the Commission nor its Judges 

are bound by the-secretary's regulations or proposed penalties. 

Rather, they must determine the appropriate amount of penalty, if 

any, in accordance with the six criteria set forth in section 

llO<i> of the Act. 30 u.s.c. § 820(i). Sellersburg Stone 

Company v. Federal Mine Safety and Health Review Commission, 736 

F.2d 1147 (7th Cir. 1984). Wilmot Mining Company, 9 FMSHRC 686 

(April 1987). U.S. Steel, 6 FMSHRC 1148 (May 1984). 

The Commission and its Judges bear a heavy responsibility in 

settlement cases pursuant to section llO(k) of the Act, 30 u.s.c. 

§ 820Ck>, which provides: 

Ck> No proposed penalty which has been contested before 

the Commission under section 105(a) shall be 

compromised, mitigated, or settled except which the 

approval of the commission. * * * 

The legislative history makes clear Congress' intent in this 

respect: Sees. Rep. No. 95-181, 95th Cong., 1st Sess., 

1396 
44-45 (1977), reprinted in Senate Subcommittee on Labor, 

·committee on Human Resources, 95th Cong., 2d Sess., 

Legislative History of the Federal Mine Safety and Health 

Act of 1977, at 632-633 (1978). 

In order to support his settlement recommendations, the 

Solicitor must present the Commission Judge with information 

sufficient to satisfy the six statutory criteria in section 

llO(i) with respect to the instant citations. I accept the 

Solicitor's statistics regarding history and in absence of any 

evidence to cqntrary, I accept his representations regarding good 

faith abatement and ability to continue in business. 

However, the representation of the operator as small in size 

cannot be accepted on the present record. The Proposed 

Assessment sheet gives the company's annual hours worked as 

1,088,152 and the mine's annual hours worked as 417,735. MSHA 

assigned the mine 7 points and the entity 3 points which is not 

small. Cf. 30 C.F.R. § 100.4. The Solicitor should expl~in why 

he believes the operator is small. 

No information is given to support the Solicitor's 

representation that the operator was guilty of moderate 

negligence in these citations. The Solicitor merely relies upon 

the box checked by the inspector on the citations. Accordingly, 

on the critical statutory criterion of negligence, I have no 

basis to make the necessary determinations. 

As already set forth, the representations given by the 

Solicitor with respect to the gravity of each violation do not 

appear to support the low recommended settlement amounts. The 

Solicitor's conclusions relate to "significant and substantial", 

as that term of art has been interpreted by the Commission in 

contest cases under section 104Cd) of the act. 30 u.s.c. 

§ 814(d). The Commission has pointed out that although the 

penalty criterion of "gravity" and the "significant and 

substantial" nature of a violation are not identical, they are 

based frequently upon the same or similar factual considerations. 

Quinland Coals, Inc., 9 FMSHRC 1614, 1622 n. 11 (September 1987). 

Youghiogheny and Ohio Coal Company, 9 FMSHRC 2007, 2013 (December 

1987). The Solicitor does not discuss the factual considerations 

for any of the subject citations. But the conclusions he offers 

do indicate a high degree of gravity which, at least on the 

present record, is at variance with his insubstantial penalty 

suggestions. And, as noted above, in some instances the 

citations contain additional facts, not included in the 

settlement motion, which apparently add to gravity. I am of 

course, not bound by the original assessments. However, it must 

be noted tha~ the Solicitor has cut the original assessments 

almost in half without explanation. 

1397 
In light of the foregoing, the recommended settlements 

cannot be accepted on the ptesent record. 

ORDER 

It is Ordered that the recommended settlements be 

Disapproved and that within 30 days from the date of this order, 

the Solicitor submit sufficient information for me to make proper 

settlement determinations under the Act. 

---= \" ~ ~. -------·---;\:--~ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Christopher J. Carney, Esq., U.S. Department of Labor, Office of 

the Solicitor, 881 Federal Office Building, 1240 East Ninth 

Street, Cleveland, OH 44199 (Certified Mail) 

Michael M. Roman, Vice President, Industrial Relations, Columbia 

Portland Cement Company, P.O. Box 1531, Zanesville, OH 43701 

(Certified Mail) 

slk 

1398 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 7, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

COLUMBIA PORTLAND CEMENT 

COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 88-59-M 

A.C. No. 33-03990-05525 

Jonathan Limestone Mine 

DECISION DISAPPROVING SETTLEMENTS 

ORDER TO SUBMIT INFORMATION 

This case is a petition for the imposition of civil 

penalties for six citations originally assessed at $831.00. 

Recommending very substantial reductions for all the 

violations, the Solicitor's proposed settlements total 

$467.50. As set forth herein, I am unable to approve the 

suggested settlements based upon the present record. 

Citation No. 3059438 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.3200, because loose material 

was observed along the highwall in the quarry for a distance 

of 200 feet thereby creating a fall of material hazard to 

employees working in the area. The original assessment for 

this citation was $136 and the proposed settlement is $76.50. 

The Solicitor asserts: "The probability of the occurrence of 

an event against which the cited standard is directed was 

reasonably likely. The gravity of projected injury had an 

accident occurred could be permanent disability. The 

operator was moderately negligent in allowing this violation 

to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $76.50. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, 

the result will be permanent disability and that the operator 

was negligent? Under such circumstances the original 

assessment looks modest indeed. 

1399 
Citation No. 3059440 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.11001, because safe means of 

access was not provided for those persons who wor~ed with the 

pump located in front of the mine portal in that access to 

the area had been cut off. The ~itation further recites that 

if employees fell, they would fall into about five feet of 

water. The original assessment for this citation was $98 and 

the proposed settlement is $55.10. The Solicitor asserts: 

"The probability of occurrence of an event against which the 

cited standard is directed was reasonably likely. The 

gravity of projected injury had an accident occurred could be 

lost workdays or restricted duty. The operator exhibited 

moderate negligence for allowing the violation to exist." 

The Solicitor 6ffers nothing to support his proposed 

settlement of $55.10. aow can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, 

the result will be lost workdays or restricted duty and that 

the operator was negligent? Under such circumstances the 

original assessment looks modest indeed. 

Citation No. 3059443 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12032, because the cover for 

the junction box of the hydraulic press was missing. The 

original assessment for this citation was $157 and the 

proposed settlement is $88.30. The Solicitor asserts: "The 

probability of the occurrence of an event against which the 

cited standard is directed was reasonably likely. The 

gravity of projected injury had an accident· occurred could be 

fatal. The operator exhibited moderate negligence for 

allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $88.30. How can I approve such a small penalty 

amount when the Solicitor himself tell·s me it is reasonably 

likely the cited condition will occur ~nd that if it does, 

the result will be a fatality and that.the operator was 

negligent? Under such circumstances tbe original assessment 

looks modest indeed. 

Citation No. 30594-~7 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12032, because the cover plate 

1400 
for the 110-volt light switch at the entrance to the 

underground crusher station was missing. The citation 

further recites employees were exposed to 110 volt energized 

parts. The original assessment was $157 and the proposed 

settlement is $88.30. The Solicitor asserts: "The 

probability of the occurrence of an event against which the 

cited standard is directed was reasonably likely. The 

gravity of projected injury had an accident occurred could be 

fatal. The operator exhibited moderate negligence for 

allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $88.30. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, 

the result will be a fatality and that the operator was 

negligent? Under such circumstances the original assessment 

looks modest indeed. 

Citation No. 3059451 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12030, because two light bulbs 

at the top of the man lift were missing, thereby exposing 

employees to energized parts. The original assessment for 

this citation was $157 and the proposed settlement is $88.30. 

The Solicitor asserts: "The probability of the occurrence of 

an event against which the cited standard is directed was 

reasonably likely. The gravity of projected injury had an 

accident occurred could be fatal. The operator exhibited 

moderate negligence for allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $88.30. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, 

the result will be a fatality and that the operator was 

negligent? Under such circumstances the original assessment 

looks modest indeed. 

Citation No. 3059461 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.14006, because the guard for 

the tailpulley on the #6 belt conveyor wad not in place. The 

citation further recites it was reasonably likely employees 

would contact the pinch point while travelling. The original 

assessment for this citation was $126 and the proposed 

settlement is $71. The Solicitor asserts: "The probability 

1401 
of the occurrence of an event against which the cited 

standard is directed was reasonably likely. The gravity of 

projected injury had an accident occurred could be permanent 

disability. The operator exhibited moderate negligence for 

allowirig this violation to exist." 

The solicitor offers nothing to support his proposed 

settlement of $71.00. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, 

the result will be permanent disability and that the operator 

was negligent? Under such circumstances the original 

assessment looks modest indeed. 

Discussion of Settlement Disapprovals 

It is well established that penalty proceedings before 

the Commission are de novo. Neither the Commission nor its 

Judges are bound bythe Secretary's regulations or proposed 

penalties. Rather, they must determine the appropriate 

amount of penalty, if any, in accordance with the six 

criteria set forth in section llOCi> of the act. 30 u.s.c. 

§ 820Ci). Sellersburg Stone Company v. Federal Mine Safety 

and Health Review Commission, 736 F.2d 1147 (7th Cir. 1984). 

Wilmot Mining Company, 9 FMSHRC 686 (April 1987). U.S. Steel, 

6 FMSHRC 1148 (May 1984). 

The Commission and its Judges bear a heavy 

responsibility in settlement cases pursuant to section llOCk) 

of the Act, 30 u.s.c. § 820Ck), which provides: 

Ck> No proposed penalty which has been contested 

before the Commission under section 105Ca) shall be 

compromised, mitigated, or settled except which the 

approval of the commission. * * * 

The legislative history makes clear Congress' intent in 

this respect: Sees. Rep. No. 95-181, 95th Cong., 1st Sess., 

44-45 (1977), reprinted in Senate Subcommittee on Labor, 

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

Legislative History of the Federal Mine Safety and Health Act 

of 1977, at 632-633 (1978). 

In order to support his settlement recommendations, the 

Solicitor must present the Commission Judge with information 

sufficient to satisfy the six statutory criteria in section 

llOCi> with respect to the instant citations. I accept the 

Solicitor's statistics regarding history and in absence of 

1402 
any evidence to contrary, I accept his representations 

regarding good faith abatement and ability to continue in 

business. 

However, the representation of the operator as small in 

size cannot be accepted on the present record. The Proposed 

Assessment sheet gives the company's annual hours worked as 

1,088,152 and the mine's annual hours worked as 417,735. 

MSHA assigned the mine 7 points and the entity 3 points which 

is not small. Cf. 30 C.F.R. § 100.4. The Solicitor should 

explain why he believes the operator is small. 

No information is given to support the Solicitor's 

representation that the operator was guilty of moderate 

negligence in these citations. The Solicitor merely relies 

upon the box checked by the inspector on the citations. 

Accordingly, on the critical statutory criterion of 

negligence, I have no basis to make the necessary 

determinations. 

As already set forth, the representations given by the 

Solicitor with respect to the gravity of each violation do 

not appear to support the low recommended settlement amounts. 

The Solicitor's conclusions relate to "significant and 

substantial", as that term of art has been interpreted by the 

Commission in Contest cases under section 104(d) of the Act. 

30 u.s.c. 814Cd). The Commission has pointed out that 

although the penalty criterion of "gravity" and the 

"significant and substantial" nature of a violation are not 

identical, they are based frequently upon the same or similar 

factual considerations. Quinland Coals, Inc., 9 FMSHRC 1614, 

1622 n. 11 (September 1987). Youghiogheny and Ohio Coal 

Company, 9 FMSHRC 2007, 2013 (December 1987). The Solicitor 

does not discuss the factual considerations for any of the 

subject citations. But the conclusions he offers do indicate 

a high degree of gravity which, at least on the present 

record, is at variance with his insubstantial penalty 

suggestions. And, as noted above, in some instances the 

citations contain addtional factors not included in the 

settlement motion, which apparently add to gravity. I am of 

course, not bound by the original assessments. However, it 

must be noted that the Solicitor has cut the original 

assessments almost in half without explanation. 

In light of the foregoing, the recommended settlements 

cannot be accepted on the present record. 

1403 
ORDER 

It is Ordered that the recommended settlements be 

Disapproved and that within 30 days from the date of this 

order, the Solicitor submit sufficient information for me to 

make proper settlement determinations under the Act. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Christopher J. Carney, Esq., U.S. Department of Labor, Office 

of the Solicitor, 881 Federal Office Building, 1140 East 

Ninth Street, Cleveland, OH 44199 (Certified M~il) 

Michael M. Roman, Vice President, Industrial Relations, 

Columbia Portland Cement Company, P.O. Box 1531, Zanesville, 

OH 43701 (Certified Mail) 

nt 

1404 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW. 6TH FLOOR 

WASHINGTON. D.C. 20006 

September 7, 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

COLUMBIA PORTLAND CEMENT 

COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 88-62-M 

A.C. No. 33-03990-05526 

Jonathan Limestone Mine 

ORDER OF APPROVAL AND ORDER TO PAY FOR ONE SETTLEMENT 

ORDER OF DISAPPROVAL AND ORDER TO SUBMIT INFORMATION 

FOR FOUR SETTLEMENTS 

This case is a petition for the imposition of civil 

penalties for five violations. Two of the violations were 

originally assessed at $20 each and the proposed settlements 

are for the original amounts. As set forth herein, I approve 

the recommended settlement for one of the $20 penalties, but 

am unable to do so for the other. 

The remaining three citations were orginally assessed at 

$371 and the Solicitor recommends reduced settlements for 

them totaling $208.70. Based upon the present record, I 

cannot approve these suggested settlements. 

Citation No. 3060309 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12030, because a 110-volt light 

bulb socket was not provided with a bulb, thus exposing 

employees to energized parts. The citation further recites 

that one employee was stationed in this area and travelled it 

frequently. This socket was located in the east tunnel. The 

original assessment for this citation was $112 and the 

proposed settlement is $63. The Solicitor asserts: "The 

probability of the occurrence of an event against which the 

cited standard is directed was reasonably likely. The 

gravity of projected injury had an accident occurred could be 

lost workdays or restricted duty. The operator was 

moderately negligent in allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $63. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

1405 
likely the cited condition will occur and that if it does, 

the result will be lost workdays or restricted duty ang that 

the operator was negligent. Under such circumstances the 

original assessment looks modest indeed. 

Citation No. 3060310 

According. to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12016, because an employee was 

working on the wilfley pump in mill i46 without d~energizing 

the electrical controls. There was no warning notice at the 

power switch. The citation further recites that several 

employees work in the affected area. The original assessment 

for this citation was $147 and the proposed settlement is 

$82.70. The Solicitor asserts: "The probability of 

occurrence of an event against which the cited standard is 

directed was reasonably likely. The gravity of projected 

injury had an accident occurred could be permanent disability. 

The operator was moderately negligent in allowing the 

violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $82.70. How can I approve such a small penalty 

amount when the Solicitor himself tells me it is reasonably 

likely the cited condition will occur and that if it does, 

the result will be permanent disability and that the operator 

was negligent. Under such circumstances the original 

assessment looks modest indeed. 

Citation No. 3060311 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12030, because the control 

switch box door on the i47 wilfley pump could not be .closed. 

The citation recites that the conductors inside the box were 

440 volts and were energized and that several employees work 

in that section of the mill. The original assessment for 

this citation was $112 and the proposed settlement is $63. 

The Solicitor asserts: "The probability of the occu~rence of 

an event against which the cited standard is directed was 

reasonably likely. The gravity of projected injury had an 

accident occurred could be lost of workdays or restricted 

duty. The operator exhibited moderate negligence for 

allowing this violation to exist." 

The Solicitor offers nothing to support his proposed 

settlement of $63. How can I approve such a small penalty 

amount when the Solicitor himself tell~ me it is reasonably 

1406 
likely the cited condition will occur arid that if it does, 

the result will be a lost workdays or restricted duty and 

that the operator was negligent. Under such circumstances 

the original assessment looks modest indeed. 

Citation No. 3060312 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.12025, because the equipment 

grounding conductor for the west screw in the basement of the 

packhouse was broken off the drive motor. The original 

assessment for this citation was $20 and the proposed 

settlement is $20. The Solicitor asserts: "The probability 

of the occurrence of an event against which the cited 

standard is directed was unlikely. The gravity of projected 

injury had an accident occurred could be fatal. The operator 

exhibited moderate negligence for allowing this violation to 

exist." 

using the pro forma language he employs in all cases of 

$20 settlements, the Solicitor gives no facts or rationale to 

support any of these conclusions, especially likelihood of 

occurrence. Therefore, I have no basis to accept his 

representations. Also, under such circumstances where 

likelihood is not explained, I have particular difficulty in 

approving a $20 penalty when the Solicitor tells me the 

projected injury is fatal. 

Citation No. 3059478 

According to the Solicitor, this citation was issued for 

a violation of 30 C.F.R. § 56.16005, because a compressed gas 

cylinder located in the underground maintenance shop was not 

secured in any manner. The original assessment for this 

citation was $20 and the proposed settlement is $20. The 

Solicitor asserts: "The probability of the occurrence of an 

event against which the cited standard is directed was 

unlikely. The gravity of projected injury had an accidant 

occurred could be lost workdays or restricted duty. The 

operator was moderately negligent in allowing this violation 

to exist." 

The Solicitor gives no reason for any of the foregoing 

conclusions, but the citation states that th~ cylindar had a 

protective cap in place. On this basis, I find the violation 

was non-serious and approve the $20 settlement. 

1407 
Discussion of Settlement Disapprovals 

It is well established that penalty proceedings b~fore 

the Commission are de novo. Neither tne Commission nor its 

Judges are bound by"-Ehe Secretary's regulations or proposed 

penalties. Rather, they must determine the appropriate 

amount of penalty, if any, in ac9ordance with the six 

criteria set forth in section llOCi> of the Act. 30 u.s.c. 

§ 820(i). Sellersburg Stone Company v. Federal Mine Sa.fety 

and Health Review Commission, 736 F.2d<ll47 (7th Cir. 1984). 

Wilmot Mining Company, 9 FMSHRC 686 (April 1987). U.S. Steel, 

6 FMSHRC 1148 (May 1984). 

The Commission and its Judges bear a heavy 

responsibility in settlement cases pursuant to section llOCk) 

of the Act, 30 u.s.c. § 820Ck>, which provides: 

(k) No proposed penalty which has been contested 

before the Commission under section 105Ca) shall be 

compromised, mitigated, or settled except which the 

approval of the commission. * * * 

The legislative history makes clear Congress' intent in 

this respect: Sees. Rep. No. 95-181, 95th Cong., 1st Sess., 

44-45 (1977), reprinted in Senate Subcommittee on Labor, 

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

Legislative History of the Federal Mine Safety and Health Act 

of 1977, at 632-633 (1978). 

In order to support his settlement recommendations, the 

Solicitor must present the Commission Judge with information 

sufficient to satisfy the six statutory criteria in section 

llOCi> with respect to the instant citations. I accept the 

Solicitor's statistics regarding history and in absence of 

any evidence to contrary, I accept his representations 

regarding good faith abatement and ability to continue in 

business. 

However, the representation of the operator as small in 

size cannot be accepted on the present record. The P~oposed 

Assessment sheet gives the company's an~ual hours worked as 

1,088,152 and the mine's annual hours worked as 417,735. 

MSHA assigned the mine 7 points and the entity 3 points which 

is not small. Cf. 30 C.F.R. § 100.4. The Solicitor should 

explain why he believes the operator is small. 

1408 
No information is given to support the Solicitor's 

representation that the operator was guilty of moderate 

negligence in these citations. The Solicitor merely relies 

upon the box checked by the inspector on the citations. 

Accordingly, on the critical statutory criterion of 

negligence, I have no basis to make the necessary 

determinations. 

As already set forth, the representations given by the 

Solicitor with respect to the gravity of each violation do 

not appear to support the low recommended settlement amounts. 

The Solicitor's conclusions relate to "significant and 

substantial", as that term of art has been interpreted by the 

Commission in Contest cases under section 104(d) of the Act. 

30 u.s.c. 814Cd). The Commission has pointed out that 

although the penalty criterion of "gravity" and the 

"significant and substantial" nature of a violation are not 

identical, they are based frequently upon the same or similar 

factual considerations. Quinland Coals, Inc., 9 FMSHRC 1614, 

1622 n. 11 (September 1987). Youghiogheny and Ohio Coal 

Company, 9 FMSHRC 2007, 2013 (December 1987). The Solicitor 

does not discuss the factual considerations for any of the 

subject citations. The conclusions he offers for the three 

citations where he recommends penalty reductions indicate a 

high degree of gravity which, at least on the present record, 

is at variance with his insubstantial penalty suggestions. 

And as noted above, in some instances the citations contain 

additional factors not included in the settlement motion 

which apparently add to gravity. I am of course, not bound 

by the original assessments. However, it must be noted that 

in these cases the Solicitor has cut the original assessments 

almost in half without explanation. 

With respect to the recommended settlement of $20, it 

must be noted that as a general matter, $20 would appear to 

be a nominal penalty appropriate for a non-serious violation, 

in absence of other unusal circumstances. The Solicitor has 

merely relied upon the boxes checked by the inspector on the 

citations. Accordingly, for the crucial statutory criterion 

of gravity, I have no basis to make the necessary 

determinations. 

In light of the foregoing, the recommended settlements 

for four of the citations set forth above, cannot be accepted 

on the present record. 

1409 
ORDER 

Accordingly, it is Ordered that the recommended 

settlement of $20 be Approved for the following citation: 

Citation No. 3059478 

It is further Ordered the operator pay $20 for this 

citation within 30 days from the date of this decision. 

It is further Ordered that the recommended settlements 

be Disapproved and that within 30 days from the date of this 

order, the Solicitor submit sufficient information for me to 

make proper settlement determinations under the Act with 

respect to the following 4 citations: 

Citation No. 

Citation No. 

Citation No. 

Citation No. 

3060309 

3060310 

3060311 

3060312 

__ ----r-\ ~ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Christopher J. Carney, Esq., U.S. Department of Labor, Office 

of the Solicitor, 881 Federal Office Building, 1240 East 

Ninth Street, Cleveland, OH 44199 (Certified Mail) 

Michael M. Roman, Vice President, Industrial Relations, 

Columbia Portland Cement Company, P.O. Box 1531, Zanesville, 

OH 43701 (Certified Mail) 

nt 

1410