MARCH 1989 

COMMISSION DECISIONS 

03-03-89 

03-22-89 

03-31-89 

03-24-89 

Westmoreland Coal Company 

Western Fuels-Utah, Inc. 

Union Oil Company of California 

Emery Mining Corporation/Utah Power & Light Co. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

03-03-89 

03-03-89 

03-06-89 

03-06-89 

03-10-89 

03-10-89 

03-14-89 

03-15-89 

03-16-89 

03-16-89 

03-17-89 

03-20-89 

03-20-89 

03-20-89 

03-20-89 

03-21-89 

03-22-89 

03-22-89 

03-20-89 

03-24-89 

03-27-89 

03-27-89 

03-29-89 

03-29-89 

03-30-89 

03-30-89 

03-30-89 

03-30-89 

03-31-89 

Consolidation Coal Company 

Donald F. Denu v. Amax Coal Company 

Western Key Enterprises 

Mettiki Coal Corporation 

Gary Smith v. Southern Hills Mining 

Gateway Coal Company 

Moltan Company 

Mike E. Ammerman v. Peabody Coal Co. 

Tommy Meade v. New World Mining Co. 

Kenneth A. McCool & others v. 0 C & W Coal Co. 

Sec. Labor for Ronald Elliott v. Sterling Energy Inc. 

Skelton Incorporated 

Cyprus Empire Corporation 

Randy G. Davis v. Phelps Dodge Corporation 

Arnold Sharp v. Big Elk Creek Coal Company 

Wilmot Mining Company 

Sanger Rock and Sand 

Old Ben Coal Company 

Sec. Labor for Willie C. Jones v. Reynolds Metal Co. 

Amax Potash Corporation 

Terry G. Miller v. Peabody Coal Co. 

Seven Day Concrete, Inc. 

Consolidation Coal Company 

Allendale Gravel Company 

Arnold Sharp v. Big Elk Creek Coal Co. 

Tuscola Stone Company 

Mettiki Coal Corporation 

Arno Sand Company 

Consolidation Coal Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

03-03-89 

03-22-89 

03-14-89 

03-24-89 

John Dixon Hacker v. Black Streak Mining 

Mid-Continent Resources, Inc. 

Super Block Coal Corporation 

Three Star Drilling & Production Corp. 

VA 89-17 

WEST 86-113-R 

WEST 86-1 

WEST 87-130-R 

WEVA 88-197 

LAKE 88-123-D 

WEST 87-189-M 

YORK 88-13 

KENT 89-4-D 

PENN 88-268 

SE 88-54-M 

KENT 89-79-D 

VA 89-9-D 

CENT 87-71-C 

KENT 88-194-D 

WEST 88-304-M 

WEST 88-250-R 

WEST 89-21-DM 

KENT 88-165-D 

LAKE 85-47 

WEST 88-44-M 

LAKE 88-105 

CENT 89-62-DM 

CENT 87-72-M 

KENT 89-61-D 

CENT 88-66-M 

WEVA 88-214 

LAKE 88-134-M 

KENT 89-45-D 

LAKE 88-127-M 

YORK 88-37 

SE 88-55-M 

WEVA 88-184-R 

KENT 89-1-D 

WEST 88-230 

LAKE 88-79 

LAKE 88-65-M 

Pg. 275 

Pg. 278 

Pg. 289 

Pg. 309 

Pg. 311 

Pg. 317 

Pg. 324 

Pg. 331 

Pg. 345 

Pg. 346 

Pg. 351 

Pg. 360 

Pg. 361 

Pg. 362 

Pg. 364 

Pg. 365 

Pg. 368 

Pg. 381 

Pg. 382 

Pg. 401 

Pg. 403 

Pg. 415 

Pg. 417 

Pg. 418 

Pg. 432 

Pg. 433 

Pg. 437 

Pg. 443 

Pg. 446 

Pg. 447 

Pg. 452 

Pg. 454 

Pg. 458 

Pg. 464 

Pg. 470 

Pg. 472 

Pg. 474 

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~:.::_.~. ~.:'. -: 

MARCH 1989 

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

Secretary of Labor, MSHA v. Westmoreland Coal Company, Docket No. 

VA 89~17. (Judge Fauver, February 3, 1989. Westmoreland stated case was 

paid by mistake). 

Westwood Energy Properties v. Secretary of Labor, MSHA, Docket No. 

PENN 88-42-R, etc. (Judge Broderick, January 26, 1989). 

Emery Mining Corporation/Utah Power & Light Co., v. Secretary of Labor, 

MSHA, Docket No. WEST 87-130-R, etc. (Judge Morris, August 30, 1989 Order). 

Secretary of Labor, MSHA v. Birchfield Mining, Inc., Docket No. WEVA 87-272. 

(Judge Melick, February 2, 1989). 

Review was not granted in the following cases during the month of March: 

Lindia Sue Frye v. Pittston/Clinchfield Coal, Docket No. VA 88-55-D. 

(Judge Weisberger, February 1, 1989). 

Rivco Dredging Corporation v. Secretary of Labor, MSHA, Docket No. 

KENT 88-25~R. (Judge Maurer, February 16, 1989) 

Robert Buelke v. Thunder Basin Coal Company, Docket No. WEST 86-192-D. 

(Judge Cetti, February 16, 1989). 

Wilfred Bryant v. Winchester Coals, Docket No. WEVA 85-43-D. (Judge 

Broderick, February 16, 1989). 

COMMISSION DECISIONS 

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 

~MINISTRATION (MSHA) 

v. 

WESTMORELAND COAL COMPANY 

March 1, 1989 

Docket No. VA 89-17 

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

Commissioners 

ORDER 

---

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine 

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

Commission Administrative Law Judge William Fauver issued a Decision 

Approving Settlement on February 3, 1989. After noting that 

Westmoreland Coal Company ("Westmoreland") had paid the civil penalty 

proposed for the violation in issue, the judge granted a dismissal 

request from the Secretary of Labor and dismissed the proceeding. 

Subsequently, the judge received from counsel for Westmoreland letters 

stating that Westmoreland had mistakenly paid the civil penalty and 

requesting, in effect, that the judge's decision be vacated and the 

matter be reopened for further proceedings. We deem these letters to 

constitute a petition for discretionary review and, for the following 

reasons, we vacate the judge's decision and remand for further 

proceedings. 

On November 9, 1988, an inspector of the Department of Labor's 

Mine Safety and Health Administration ("MSHA") issued to Westmoreland, 

at its Prescott No. 2 underground coal mine, a citation pursuant to 

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

mandatory safety standard 30 C.F.R. § 75.203. ll On December 16, 1988, 

ll Section 75.203(a), a mandatory safety standard for underground 

coal mines, provides: 

The method of mining shall not expose any person 

to hazards caused by excessive widths of rooms, 

275 

~- . 

-;.·· .. 

~-:· 

\-
the Secretary filed with the Commission a Petition for Assessment of 

Civil Penalty proposing an $85 penalty for the alleged violation. 

Westmoreland subsequently filed an Answer contesting the penalty and 

underlying violation. The matter was assigned to Judge Fauver, who 

issued a Prehearing Order on January 26, 1989, directing the parties to 

confer by February 21, 1989, for the purposes of discussing any possible 

settlement or stipulations. 

By letter to Chief Administrative Law Judge Paul Merlin, dated 

January 26, 1989, and received by the Commission on January 30, 1989, 

counsel for the Secretary stated: 

The operator in this case has paid the full amount 

of the penalty that was assessed, $85. As far as we 

are concerned, the case may now be dismissed. 

On February 3, 1989, Judge Fauver issued his decision dismissing the 

case. He stated: "Petitioner has moved to dismiss the case based upon 

full payment of the proposed civil penalty. I have considered the 

representations and documentation submitted and I conclude that the 

proffered settlement is consistent with the criteria in § llO(i) of the 

Act. '

1 

By letters to Judge Fauver dated February 1 and February 7, 1989, 

and received by the Commission on February 3 and February 9 

respectively, counsel for Westmoreland stated that the civil penalty in 

question had been paid in error and requested that the matter not be 

dismissed and remain on the Commission's docket. 

The judge's jurisdiction in this matter terminated when his 

decision issued on February 3, 1989. 29 C.F.R. § 2700.65(c). Under the 

Mine Act and the Commission's procedural rules, once a judge's decision 

has issued, relief from the decision may be sought by filing with the 

Commission a petition for discretionary review within 30 days of the 

decision. 30 U.S.C. § 823(d)(2)(A)(i), 29 C.F.R. 2700.70(a). Here, 

Westmoreland's letters are a request for relief from the judge's 

decision, and we will treat them as a petition for discretionary review. 

A civil penalty under the Mine Act is predicated upon the 

existence of a violation. An operator cannot deny the existence of a 

violation for purposes connected with the Mine Act and at the same time 

pay a civil penalty. Therefore, the Commission has held that an 

operator's payment of a civil penalty proposed for a violation 

extinguishes the operator's right to contest the fact of violation. Old 

Ben Coal Co., 7 FMSHRC 205, 209 (February 1985). The Commission has 

also expressly noted, however, that where a civil penalty has been paid 

by genuine mistake, the operator's right to contest the violation may 

not be lost. Old Ben Coal Co., 7 FMSHRC at 210 n.6. 

crosscuts and entries, or faulty pillar recovery 

methods. Pillar dimensions shall be compatible with 

effective control of the roof, face and ribs and 

coal or rock bursts. 

276 
The record does not contain sufficient information to permit us to 

determine whether Westmoreland's penalty payment was a "genuine 

mistake." Further proceedings may be necessary to address 

Westmoreland's assertions and for the judge to determine what relief, if 

any, is appropriate. 

Accordingly, the judge's decision is vacated, and the matter is 

remanded for proceedings consistent with this order. 

L--<---~,,£~~~--

,Richard V. Backley, Commissioner 

ames A~ Lastowk/L_a, Commissioner 

I ~ ~ ~ I 

Q_ ~~-'\.) z. L...L..()-7\j 

L. Clair Nelson, Commissioner 

277 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March. 22, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WESTERN FUELS-UTAH, INC. 

Docket Nos. WEST 86-113-R 

WEST 86-114-R 

WEST 86-245(A) 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

The issue in this consolidated contest and civil penalty 

proceeding arising under the Federal Mine Safety and Health Act of 1977, 

30 U.S. C. § 801 et seq. (1982 )("Mine Act" or "Act") , is whether 

supervisors who meet the training certification requirements for 

supervisory personnel under a state program approved by the Department 

of Labor's Mine Safety and Health Administration ("MSHA") must be given 

task training prior to performing work for which non-supervisory miners 

would be required to have task training. lf MSHA cited Western Fuelslf Section 115(a) of the Mine Act, 30 U.S.C. § 825(a), provides a 

comprehensive scheme for miner training. In general, section 115(a) 

requires training for new miners, annual refresher training, and task 

training. With regard to task training, section 115(a) provides in 

relevant part: 

(a) Each operator of a coal or other mine shall 

have a health and safety training program which 

shall be approved by the Secretary •••• Each 

training program approved by the Secretary shall 

provide as a minimum that--

* * * 

(4) any miner who is reassigned to a new 

task in which he has had no previous work 

278 
Utah, Inc. ("Western Fuels") for a violation of section 115(a) of the 

Mine Act, 30 U.S.C. § 825(a), and 30 C.F.R. § 48.7 for failing to task 

train one of.its section foremen in the operation of a roof-bolting 

machine prior to his using that machine. In proceedings before 

Conunission Administrative Law Judge Roy J. Maurer, Western Fuels argued 

that the foreman was exempt from the task training requirements by 

virtue of 30 C.F.R. § 48.2(a)(l)(ii), which excludes from coverage by 

section 48.7 "[s]upervisory personnel subject to MSHA approved State 

certification requirements •... " '1:_/ Judge Maurer concluded that task 

experience shall receive training in 

accordance with a training plan approved by 

the Secretary under this subsection in the 

safety and health aspects specific to that 

task prior to performing that task. 

The Secretary of Labor's regulations implementing section 115(a) 

are set forth at 30 C.F.R. Part 48. With regard to task training for 

miners working in underground coal mines, section 48.7(a) in pertinent 

part states: 

Miners assigned to new work tasks as mobile 

equipment operators, drilling machine operators, 

haulage and conveyor systems operators, roof and 

ground control machine operators, and those in 

blasting operations shall not perform new work tasks 

in these categories until training prescribed in 

this paragraph and paragraph (b) of this section has 

been completed •... 

'1:_/ The provisions of Subpart A of 30 C.F.R. Part 48 (30 C.F.R. 

§§ 48.1-48.12) set forth the training requirements applicable to "miners 

'Working in underground mines." 30 C.F.R. § 48.1. Sections 48.2(a)(l) 

and 48.2(a)(l)(ii) state: 

(a)(l) "Miner" means, for purposes of §§ 48.3 

through 48.10 of this Subpart A [Training and 

Retraining of Underground Miners], any person 

working in 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 

underground on a continuing, even if irregular, 

basis. Short term, specialized cont(r]act workers, 

such as drillers and blasters, who are engaged in 

the extraction and production process and who have 

received training under § 48.6 (Training of newly 

employed experienced miners) of this Subpart A may, 

in lieu of subsequent training under that section 

for each new employment, receive training under 

279 
training of the foreman was required because the exemption contained in 

section 48.2(a)(l)(ii) applies only to a supervisor actually and 

primarily engaged in supervision and not to one engaged in the 

extraction and production process. 9 FMSHRC 1355 (August 1987)(ALJ). 

Because this conclusion cannot be squared with the plain, unambiguous 

language of section 48.2(a)(l)(ii), we reverse. 

On February 3, 1986, Carson Julius, a miner at Western Fuels' 

Deserado Mine, an underground coal mine located in Rangely, Colorado, 

was promoted to section foreman. The criteria applied by Western Fuels 

in selecting a section foreman required that the person have the ability 

to operate face equipment in order to properly direct the work force in 

its operation, have on-the-job experience in underground operation of a 

coal mine, have supervisory skills, and be certified by the State of 

Colorado as a mine foreman. 3/ Julius had been certified as a mine 

foreman by the State on May l5, 1980, and in Western Fuel's opinion met 

the other selection criteria. 

On February 28, 1986, Julius was in charge of a production crew 

assigned to the East Mains working section of the mine. In that 

section, roof was being bolted under Julius' supervision. The machine 

being used to bolt the roof was a Lee Norse TD-43-5-4F roof bolting 

machine. ~/ That morning, Sky Havens was operating the right hand boom 

of the roof bolting machine and Austin Mullens was operating the left 

hand boom. Julius instructed Havens to go to lunch, and Julius took his 

place as the operator of the right hand boom while Mullens continued to 

operate the left hand boom. 

After Julius and Mullens had installed one row of bolts, Mullens, 

contrary to Julius' repeated instructions, walked under unsupported roof 

to raise an end of a metal roof mat that had fallen to the floor. 21 

Mullens was killed when a large piece of the mine roof fell and struck 

§ 48.11 (Hazard training) of this Subpart A. This 

definition does not include: 

* * * 

(ii) Supervisory personnel subject to MSHA 

approved State certification requirements •••• 

lf The State of Colorado certification requirements for supervisory 

personnel are approved by MSHA. 

~/ The Lee Norse machine is double boomed and is normally operated by 

two miners, one on each side of the machine, who simultaneously install 

the bolts. Julius had operated the Lee Norse machine briefly on prior 

occasions. Julius had also operated other roof bolting machines in the 

past. 

21 Metal roof mats were part of the roof support system used at the 

mine. 

280 
him. §.I 

During· a subsequent investigation of the accident, MSHA 

Investigator Theodore L. Caughman found that prior to the accident 

Julius had not received task training in the use of the roof bolting 

machine. II Caughman issued an order of withdrawal pursuant to section 

104(g)(l) of the Mine Act, 30 U.S.C. § 814(g)(l), requiring Julius' 

removal from the mine on the grounds that Julius had not received the 

requisite task training. Caughman subsequently modified the order to 

allege that Western Fuels' failure to task train Julius was a violation 

of section 115(a) of the Act. In addition, Caughman issued a citation 

to Western Fuels pursuant to section 104(a) of the Act, 30 U.S.C. 

§ 814(a), alleging that Julius' lack of task training was a violation of 

30 C.F.R. § 48.7. Caughman further found that Julius' lack of training 

was of such nature as to significantly and substantially contribute to a 

mine safety hazard although it did not contribute to the cause of the 

accident. Western Fuels abated the order and citation by providing 

Julius with training in the operation of the roof bolting machine. 

In his decision, the judge concluded that Julius was required to 

be task trained prior to operating the roof bolting machine and that 

Western Fuels violated section 115(a) of the Act and section 48.7 by 

failing to train Julius. 9 FMSHRC at 1365. The judge noted that 

section 48.2(a)(l)(ii) "on its face purports to except supervisory 

personnel subject to MSHA approved State certification requirements from 

the definition of 'miner', and therefore from the task training 

requirements of [section] 48. 7." 9 FMSHRC at 1361. The judge focused 

his decision upon the question of whether the exemption applied to 

Julius. 

The judge described the Secretary's position with regard to the 

language of section 48.2(a)(l)(ii) as follows: "[The Secretary] 

maintains that a person is 'supervisory' only so long as he 

'supervises.' Once that person diverts from supervising to running 

mining machinery, that person is no longer 'supervisory' but rather is a 

'miner' regardless of his job title." 9 FMSHRC at 1361. The judge 

found that Julius, "while engaged in operating the roof bolting machine 

was primarily engaged in a nonsupervisory task in the extraction and 

production process although he nominally retained his role as a 

'supervisor,' i.e., a section foreman, throughout the period of this 

incident." 9 FMSHRC at 1363-64. 

§.I This accident also led to the issuance to Western Fuels of another 

citation alleging that a violation of 30 C.F.R. § 75.200 occurred when 

Mullens proceeded under unsupported roof. This violation was at issue 

in another proceeding and was upheld by the Commission. Western FuelsUtah, 10 FMSHRC 256 (March 1988), pet. for review filed, No. 88-1313 

(D.C Cir. April 22, 1988). 

II The training plan then in effect at the mine, required under 

section 115(a) of the Mine Act and approved by an MSHA district manager, 

does not require supervisors to take task training but does require task 

training for roof bolters. 

281 

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~: ... -.· .-.- ~-:.\":;';:'"!-::'"! 

i~ !~: ~.._::.:.~: 

i···.·.· ._ ... L .. 
The judge noted that the Secretary's interpretation of the term 

"supervisory personnel" had previously been set forth in a series of 

MSHA documents and accepted her interpretation as reasonable. 9 FMSHRC 

at 1361-62, 1364. The judge further held that the Secretary's 

interpretation of the exception was in accord with the statutory 

objectives of the Act pertaining to training, was consistently applied 

by MSHA, and was noticed to the industry. 9 FMSHRC at 1364-65. The 

judge concluded that the exception "must be limited to those supervisors 

who are actually engaged primarily in supervision" and that since Julius 

was "primarily engaged in operating the roof bolting machine, not 

supervision," Julius was required to have been task trained on the 

machine before undertaking its operation. 9 FMSHRC at 1365. 

Accordingly, the judge determined that Western Fuels violated section 

48.7 and section 115(a) of the Mine Act. Id. The judge also found that 

the violation was significant and substantial in nature, and accordingly 

he affirmed the order of withdrawal and citation and assessed Western 

Fuels a civil penalty of $180 for the violation. 9 FMSHRC at 1366-1367. 

On review, Western Fuels does not dispute that, prior to the 

accident, it had not provided Julius with task training in the operation 

of the Lee Norse roof bolting machine. Rather, Western Fuels argues 

that the language of section 48.2(a)(l)(ii) excludes "supervisory 

personnel" subject to MSHA approved State certification from the task 

training requirements of Part 48 and that Julius comes within this 

exception. Western Fuels asserts that the Secretary's interpretation of 

section 48.2(a)(l)(ii), adopted by the judge, is an unlawful attempt by 

the Secretary to amend the regulation outside the rulemaking 

requirements of the Mine Act. ~/ 

We agree with Western Fuels that the language of section 

48.2(a)(l)(ii) means what it says, that supervisory personnel subject to 

MSHA approved State certification requirements are exempt from the 

30 C.F.R. §§ 48.3 through 48.10 training and retraining requirements. 

The parties stipulated that at the time the violations were cited Julius 

was a mine foreman certified by the State of Colorado, which program was 

MSHA approved. We hold that as such he was exempt from the task 

training requirements of section 48.7. 

We find the relevant regulations to be clear and unambiguous in 

this regard. Sections 48.3 through 48.10 set forth the requirements for 

~/ The Secretary's argument with respect to the validity of the 

withdrawal order, which cited section 115(a), and the citation, which 

cited section 48.7, is the same. The regulations in Part 48-Subpart A, 

including sections 48.2(a)(l)(ii) and 48.7, set forth the requirements 

for training and retraining of underground miners and were promulgated 

pursuant to section 115 of the Act. No issue is presented in this case 

concerning the general validity of a supervisory exception to the 

training regulations. The parties accept the exception as valid but 

differ as to the meaning of the language of section 48.2(a)(l)(ii). The 

judge's decision was based on his analysis of this language as well. 

Therefore, in deciding this case, we focus only upon the meaning of the 

exception. 

282 
submitting and obtaining approval of programs for training and 

retraining miners working in underground mines, the requirements for the 

training of new miners, the training of newly employed experienced 

miners, the training of miners assigned to a task in which they have had 

no previous experience, the requirements for annual refresher training 

of miners, and the requirements for record keeping and compensation. 

Section 48.2 expansively defines a "miner 11 for purposes of sections 48.3 

through 48.10 as: 

any person working in 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 ••. includ[ing] the 

operator if the operator works underground on a 

continuing, even if irregular basis. 

However, after defining the 11miners" who are subject to the requirements 

of sections 48.3 through 48.10, section 48.2(a)(l)(ii) expressly states 

that among those who are not included in the definition of miner are 

"[s]upervisory personnel subject to MSHA approved State certification 

requirements. 11 It is not in dispute that the State of Colorado 

certification requirements are approved by MSHA. 

The exclusion of "supervisory personnel" from the definition of 

"miner" in section 48.2(a)(l)(ii) has a plain meaning apparent from any 

reasonable reading of the regulation. The term "supervisory personnel" 

means individuals who are supervisors. Supervisors are persons having 

authority delegated by an employer to supervise others. Webster 1 s Third 

New International Dictionary (Unabridged) 2296 (1986 ed.). Nothing in 

the regulation expressly suggests that the Secretary intended the term 

"supervisory personnel" to mean anything other than those persons who 

have been certified under an MSHA approved state plan and have been 

accorded supervisory status by their employers. Nothing in the 

regulation implies that "supervisory personnel" are vested with or 

divested of that status by virtue of the particular task they perform at 

any given moment. Nothing in the regulation hints that supervisory 

status is functionally distinctive, and that it contemplates a 

distinction between those supervisory personnel attending to supervisory 

tasks and those attending to production tasks. 

It is a cardinal principle of statutory and regulatory 

interpretation that words that are not technical in nature "are to be 

given their usual, natural, plain, ordinary, and commonly understood 

meaning." Old Colony R.R. Co. v. Commissioner of Internal Revenue, 284 

U.S. 552, 560 (1932). When the meaning of the language of a statute or 

regulation is plain, the statute or regulation must be interpreted 

according to its terms, the ordinary meaning of its words prevails, and 

it cannot be expanded beyond its plain meaning. Old Dominion R.R. Co. 

v. Commissioner of Internal Revenue, 284 U.S. 552, 560 (1932); see Emery 

Mining Corp. v. Secretary of Labor, 783 F.2d 155, 159 (10th Cir. 1986). 

Thus, if an operator delegates to a miner authority to supervise, the 

283 

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~ _: ~· 

":: 
miner is "supervisory personnel." If he is also subject to MSHA 

approved State certification, then by the terms of section 

48.2(a)(l)(ii) he is excluded from the training requirements of sections 

48.3 through 48.10, including the task training requirements of section 

48.7. 

Despite the plain meaning of the regulation, the Secretary argues 

that her interpretation of the supervisory personnel exception to the 

definition of "miner" is reasonable and must be accorded deference. We 

have carefully considered the Secretary's arguments in this regard but 

find no basis upon which we may give weight to the Secretary's arguments 

in this case. 

While the Secretary's interpretations of her regulations are 

entitled to weight, that deference is not limitless and the Secretary's 

interpretations are not without bounds. Deference is not required when 

the Secretary's interpretations are plainly erroneous or inconsistent 

with the regulation. See Udall v. Tallman, 380 U.S. 1, 16-17 

(1965)(quoting Bowles V:-seminole Rock Co., 325 U.S. 410, 413-14 

(1945)). Nor does it weigh in the Secretary's favor when the Secretary 

has not offered reasonable interpretations of the standards. See Brock 

on behalf of Williams v. Peabody Coal Co., 822 F.2d 1134, 1145 (D.C. 

Cir. 1987). The Mine Act does not contemplate that the Commission 

merely "rubber-stamp" the Secretary's interpretations without evaluating 

the reasonableness of those interpretations and their fidelity to the 

words of the regulations. 

The language of the supervisory personnel exception is 

unambiguous. It exempts supervisory personnel subject to MSHA approved 

State certification requirements. Further, the Secretary's 

contemporaneous construction of her training regulations indicates no 

intent to distinguish between those supervisory personnel engaging in 

supervisory tasks and those attending to production tasks. In a 

preamble titled "Supplemental Information," published during 

promulgation of the final training regulations, the Secretary 

specifically stated that "supervisory personnel subject to an approved 

State certification program" would be excluded from Part 48 training 

requirements and that MSHA approved state certified training of 

supervisors was an "alternative to the training requirements" of Part 

48: 

Training of Supervisors. The final rule retains 

the exclusion from these training requirements of 

supervisory personnel subject to an approved State 

certification program. Some cornrnenters were not 

aware of State certification requirements of 

supervisory personnel. Presently, certification 

programs are generally administered by coal 

producing states and are used by operators when 

complying with the training requirement for 

certified personnel found in §§ 75.160, 75.160-1, 

77.107 and 77.107-1, Title 30, Code of Federal 

Regulations. MSHA will approve or evaluate the 

State certification programs to assure that such 

284 
programs provide sufficient training as an 

alternative to the training requirements of subparts 

A and B; no formal approval process is contemplated. 

Commenters questioned why only those supervisors 

certified by approved State programs should be 

exempt from the training requirements. State 

certification programs are administered according to 

specific criteria, which helps insure that 

supervisors will receive adeguate training. 

43 Fed Reg. 47454, 47458 (October 13, 1978) (emphasis added). 

This preamble to the final rule represents the Secretary's 

contemporaneous interpretation of the exemption and contains nothing to 

sugg·est that "supervisory personnel" fall within or without it depending 

upon the nature of a task they momentarily undertake. To the contrary, 

the Secretary's commentary suggests that Part 48 training (which would 

include task training) for "supervisory personnel" was to be 

accomplished pursuant to approved State certification programs. In sum, 

what the Secretary now states she intended the words "supervisory 

personnel" to mean was not expressed in the training regulations during 

promulgation. 

The Secretary also points to several MSHA policy statements, 

issued subsequent to promulgation of the training regulation, 

enunciating her view of the limited nature of the supervisory personnel 

exception. These include a document entitled Q-A Memorandum (February 

24, 1982) addressed to district managers, sub-district managers and 

field office supervisors and stating that "a state certified supervisor 

performing the work of a miner would be required to be trained under 

Part 48" (Exh. G-6); a 1984 MSHA Policy Memorandum stating that the 

supervisory personnel "exception applies only to the extent that 

supervisory work is being performed" (Exh. G-7); 9/ and a portion of the 

1985 MSHA Administrative Manual stating that "if a supervisor operates 

mining equipment, or performs extraction, production and maintenance 

work, that supervisor is a 'miner' when performing this work and must 

have been given task training under section 48.7." Exh. G-8. 

While the Commission has recognized that there may be situations 

where MSHA policy memorandums, manuals or similar MSHA documents may 

"reflect a genuine interpretation or general statement of policy whose 

soundness commends deference and therefore results in [the Commission] 

according it legal effect," it has declined to do so where the 

21 The 1984 MSHA Policy Memorandum also states: 

When supervisors perform or are expected to perform 

mining tasks, they are "miners" under Part 48 and 

must receive the required training. For example, if 

a supervisor operate mining equipment •.• that 

supervisor must have completed task training as 

specified by [section] 48.7 .... Exh. G-7 at 

sheet 2. 

285 

\Zc~\o 

~·.:~·- ;·~ 

~ .... 
interpretation or policy statement is inconsistent with the language of 

the standard. King Knob Coal Co., 3 FMSHRC 1417, 1420 (June 1981). See 

also United States Steel Corp., 5 FMSHRC 3, 6 (January 1983). In those 

instances, the Commission has concluded that "the express language of a 

... regulation 'unquestionably controls.'" King Knob, 3 FMSHRC at 1420. 

Here, where the Secretary's interpretation, as expressed in policy 

statements, flies in the face of the language of the rule itself, it is 

owed no deference. See also Daviess County Hosp. v. Bowen, 811 F.2d 

338, 345 (7th Cir. 1987); Union of Concerned Scientists v. Nuclear Reg. 

Com'n, 711 F.2d 370, 381 (D.C. Cir. 1983). 10/ 

Thus, we do not view the commentaries on the supervisory personnel 

exclusion contained in the MSHA memoranda and manual as genuine 

interpretations or general policy statements; rather, they are an 

invalid attempt to amend the regulation to require the training of 

supervisory personnel on the basis of functional distinctions, a 

requirement not found in the adopted training regulations •. !1/ As such, 

they represent a substantive modification of section 48.2(a)(l)(ii), not 

merely an interpretative gloss. 

Section lOl(a) of the Mine Act, 30 U.S.C. § 8ll(a), requires all 

rules concerning mandatory health or safety standards to be promulgated 

in accordance with section 553 of the Administrative Procedure Act 

10/ The present situation is in stark contrast to that involved in 

Secretary on behalf of Bushnell v. Cannelton Industries, Inc., No. 88-

1229, F.2d (D.C. Cir. February 14, 1989), where the court 

concluded that the Commission failed to extend due deference to the 

Secretary's interpretation of her regulation. In Bushnell, the Court 

noted that there was no "plain meaning" manifest on the face of the 

regulation; that the Secretary's interpretation was a reasonable one 

consistent with the language of the regulation; and that the preamble to 

the final rule strongly supported the Secretary's reading. Slip op. 14-

15. We find that all of these factors are not present here . 

.!.!/ The Secretary argues that an industry representative on the 

advisory committee appointed by the Secretary to assist her in the 

development of the training regulations accepted MSHA's position that 

Part 48 training would be required for supervisors performing 

nonsupervisory work. S. Br. 8. We do not find this argument to be 

persuasive. To give weight to the unpublished remarks of one advisory 

committee member is entirely unwarranted in view of the unambiguous 

language in the regulation and the Secretary's statement during 

promulgation of the final rule that State certification programs for 

supervisory personnel are "an alternative to the training requirements 

of Subparts A and B [of Part 48]." 43 Fed. Reg. at 47454. See 

generally Monterey Coal Co. v. FMSHRC, 743 F.2d 589, 595-596 (7th Cir. 

1984). Administrative history, like legislative history, cannot be used 

to create doubt where the language of the regulation is plain on its 

face. See United States v. Oregon, 366 U.S. 643, 648 (1961); Matala v. 

Consolidation Coal Co., 647 F.2d 427, 430 (4th Cir. 1981). 

286 
("APA"), 5 U.S.C. § 553. Further, section 10l(a)(2) of the Act, 

30 U.S.C. § 811(a)(2), requires the Secretary to publish in the Federal 

Register any "proposed rule promulgating, modifying, or revoking a 

mandatory health or safety standard" and to permit public conunent on the 

proposed regulation (emphasis added). Section 553 of the APA requires 

that to the extent a rule is more than an interpretation or general 

statement of policy, it is subject to the APA's notice and conunent 

requirements. Because the Secretary's conunentaries attempt to modify 

section 48.2(a)(l)(ii) and were not promulgated in accordance with 

applicable requirements, they lack the force and effect of law and 

section 48.2(a)(l)(ii) must stand as written. See King Knob, 3 FMSHRC 

at 1420-21. 

Finally, a regulation subjecting an operator to enforcement action 

under the Mine Act must give fair notice to the operator of what is 

required or prohibited and "cannot be construed to mean what an agency 

intended but did not adequately express." Phelps Dodge Corp. v. FMSHRC, 

681 F.2d 1189, 1193 (9th Cir. 1982). Here, we conclude that the plain 

language of 30 C.F.R. § 48.2(a)(l)(ii) did not notify Western Fuels of 

the functional distinction proffered by the Secretary in this proceeding 

-- that supervisory personnel subject to MSHA approved state 

certification must be task trained pursuant to section 48.7 if they 

engage in what MSHA regards as non-supervisory, production activities. 

In sum, we hold that section 48.2(a)(l)(ii) means what it says and 

that supervisory personnel subject to MSHA approved State certification 

are excluded from the mandatory training regulations of sections 48.3 

through 48.10. Since Julius was a supervisor certified by the State of 

Colorado, an MSHA approved state program, we conclude that he was not 

required to be task trained on the Lee Norse roof bolting machine prior 

to operating it, and that the order and citation cannot be upheld. 

t. 
Accordingly, we reverse the decision of the judge and vacate the 

order, the citation, and the penalty assessment. 

~// 

.~~ 

Distribution 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Karl F. Anuta, Esq. 

P.O. Box 1001 

2120 13th Street 

Boulder, Colorado 80306 

Richard V. Backley, Conunissioner 

Lastowka, 

L. 

~v/lxL.fAnv Clair Nelson, Conunissioner 

Administrative Law Judge Roy Maurer 

Federal Mine Safety and Health Review Connnission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

288 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, &TH FLOOR 

WASHINGTON, D.C. 20006 

March 31, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. WEST 86-1-M 

UNION OIL COMPANY OF 

CALIFORNIA 

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

Commissioners 

DECISION 

BY Ford, Chairman; Backley, Doyle and Nelson, Commissioners: 

In this civil penalty proceeding arising under the Federal Mine 

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

Act" or "Act"), we are asked to decide whether a violation of 30 C.F.R. 

§§ 57.5001/.5005 involving overexposure to vanadium fume was of such 

nature as could significantly and substantially contribute to the cause 

and effect of a mine health hazard. !/ A hearing on the merits was held 

!/ 30 C.F.R. § 57.5001 states in part: 

Exposure limits for airborne contaminants. 

Except as permitted by § 57.5005 --

(a) Except as provided in paragraph (b), the 

exposure to airborne contaminants shall not exceed, 

on the basis of a time weighted average, the 

threshold limit values adopted by the American 

Conference of Governmental Industrial Hygienists, as 

set forth and explained in the 1973 edition of the 

Conference's publication, entitled "TLV1 s Threshold 

Limit Values for Chemical Substances in Workroom Air 

Adopted by ACGIH for 1973," pages 1 through 54, 

which are hereby incorporated by reference and made 

289 

\;/:?~~ 

~\~~;< 

\: 
before Conunission Administrative Law Judge John A. Carlson. Following 

Judge Carlson's death, the case was reassigned for decision to 

Conunission Administrative Law Judge Michael A. Lasher, Jr., who, without 

objection from the parties, decided the case on the record developed 

before Judge Carlson. Judge Lasher determined that Union Oil Company of 

California ("Unocal") violated sections 57.5001/.5005 but that the 

violation was not of a significant and substantial nature. He assessed 

a civil penalty of $75.00 for the violation. 9 FMSHRC 282 (February 

1987)(ALJ). We granted the Secretary's petition for discretionary 

review challenging the judge's finding that the violation was not 

significant and substantial, and we heard oral argument. For the 

a part hereof. This publication may be obtained 

from the American Conference of Governmental 

Industrial Hygienists by writing to the SecretaryTreasurer, P.O. Box 1937, Cincinnati, Ohio 45201, or 

may be examined in any Metal and Nonmetal Mine 

Safety and Health District or Subdistrict Off ice of 

the Mine Safety and Health Administration. 

Excursions above the listed thresholds shall not be 

of a greater magnitude than is characterized as 

permissible by the Conference. 

* * 

(c) Employees shall be withdrawn from areas 

where there is present an airborne contaminant given 

a "C" designation by the Conference and the 

concentration exceeds the threshold limit value 

listed for that contaminant. 1 

30 C.F.R. § 57.5005 states in part: 

Control of exposure to airborne contaminants. 

Control of employee exposure to harmful airborne 

contaminants shall be, insofar as feasible, by 

prevention of contamination, removal by exhaust 

ventilation, or by dilution with uncontaminated air. 

However, where accepted engineering control measures 

have not been developed or when necessary by the 

nature of work involved (for example, while 

establishing controls or occasional entry into 

hazardous atmospheres to perform maintenance or 

investigation), employees may work for reasonable 

periods of time in concentrations of airborne 

contaminants exceeding permissible levels if they 

are protected by appropriate respiratory protective 

equipment ••.• 

The airborne contaminant at issue in this case .is vanadium fume. 

Definitions of vanadium and vanadium pentoxide, a toxic form of 

vanadium, are provided below; the Threshold Limit Value for vanadium is 

also discussed below. 

290 
reasons that follow, we affirm. 

I. 

Unocal operates the Parachute Creek Mine, an underground oil shale 

mine, located near Parachute, Colorado. On May 14, 1985, during an 

inspection of the mine, Inspector Michael T. Dennehy of the Department 

of Labor's Mine Safety and Health Administration ("MSHA") learned that 

hard surface arc welding was being performed at the mine's secondary 

crusher and that the welders were using welding rods containing 

vanadium. 11 The inspector decided to sample the welders for exposure 

to vanadium fume. Vanadium in the form of either dust or fume is one of 

the airborne contaminants subject to sections 57.5001/.5005. The 

Threshold Limit Value ("TLV") for vanadium fume, as set forth in a 1973 

publication of the American Conference of Governmental Industrial 

Hygienists' incorporated by reference in section 57.5001, is .05 

milligrams of vanadium per cubic meter of air (mg/m3). 3/ 

11 Vanadium, a metallic element, is described as follows: 

A gray or white, malleable, ductible, polyvalent 

metallic element in group V of the periodic system. 

It is resistant to air, sea water, alkalies, and 

reducing acids except hydroflouric acid. It occurs 

widely but mainly in small quantities in combination 

in minerals (such as vanadinite, patronite, 

carnotite, and roscoelite), in the ashes of many 

plants, in coals, in petroleums, and in asphalts. 

Usually obtained in the form of ferrovanadium or 

other alloys, or in almost pure metallic form 

containing small amounts of oxygen, carbon, or 

nitrogen by the reduction of ores, slags, or 

vanadium pentoxide (Vz05). Used chiefly in vanadium 

steel. 

Bureau of Mines, U.S. Department of the Interior, Dictionary of Mining, 

Mineral, and Related Terms 1195 (1968) ("DMMRT"). 

}/ The publication incorporated in section 57.5001, Threshold Limit 

Values for Chemical Substances in Workroom Air Adopted by the American 

Conference of Governmental Industrial Hygienists (ACGIH)) for 1973 

("ACGIH TLVs"), provides the following TLVs for vanadium: 

Substance 

Vanadium (Vz05, as V 

Dust 

C Fume 

* 

ppm 

* 

a) 

0.5 

0.05 

* 

a) Parts of vapor or gas per million parfs of 

contaminated air by volume at 25°C and 760 mm. Hg. 

291 
On May 15, 1985, having obtained proper sampling equipment, 

Dennehy went to the crusher area, where four welders were working, and 

equipped each welder with a sampling cassette and pump. At issue in 

this proceeding is sample number MD-1 (Exh. P-2). This sample was from 

one of the employees engaged in welding, and was obtained on the basis 

of the employee's having worn the pump and filter during the entire 

shift from 7:24 a.m. to 2:45 p.m. (with one 30-minute interruption while 

the inspector took a short-term sample). Tr. 24, 67. During the first 

part of the sampling peripd, the exhaust fan at the crusher system was 

turned off. The fan was restarted during the afternoon of the sampling 

day, and the judge found that, had it been operating, the welder would 

not have been overexposed to vanadium fume. 9 FMSHRC at 285. During 

the testing period the employee was not wearing personal protective 

equipment to protect him from exposure to welding fumes. 

After collecting the sampling equipment at the end of the day 

shift, the inspector took the samples to an MSHA field office and they 

were then sent to the MSHA Technological Center in Denver, Colorado, for 

pressure. 

b) Approximate milligrams of substance per cubic 

meter of air. 

ACGIH TLVs at 31. 

"V205" in this TLV refers to vanadium pentoxide (hereafter 

referred to as "V205"), a toxic oxidized compound of vanadium. Vz05 is 

described as follows: 

Yellow to red; orthorhombic; .•• toxic; melting 

point, 690°c; decomposes at l,750°c before reaching 

a boiling point; slightly soluble in water; soluble 

in acids and alkali~s; and insoluble in absolute 

alcohol. Used in ceramics and as a catalyst •.•• 

Also used as a glass colorant ...• 

DMMRT 1196. Although the specific toxic substance with which the 

vanadium TLV is concerned is v205, the TLV is expressed in terms of 

vanadium either as a dust or fume. 9 FMSHRC at 285; Tr. 100-02, 140-41, 

168, 208-10. See also Secretary's Brief on Review at 2-3 & n.2. When 

MSHA samples for exposure to vanadium under this TLV, the sample result 

is described in terms of a concentration of vanadium. Id. 

The "C" designation for vanadium fume in the ACGIH TLVs refers to 

a "Ceiling limit," which is a level of exposure that is not to be 

exceeded. A C limit is different from a "Time-Weighted Average" limit 

("TWA"), which contemplates the possibility of temporary incursions 

beyond the limit. See section 57.500l(c)(n.l supra); ~also ACGIH 

TLVs 3-4. 

With respect to the arc welding procedure involved in this case, 

heat applied to a metal welding rod containing vanadium vaporizes the 

vanadium and produces vanadium fume. Vanadium fume contains vanadium 

and V205. 9 FMSHRC 287-89; Tr. 99-100. See also DMMRT 698 (definition 

of "metallurgical fume"). 

292 
analysis. The subsequent report of results indicated that the sample in 

question contained 47.4 microns of vanadium. From this number, the 

inspector calculated that the concentration of vanadium fume to which 

the welder had been exposed was .0678 mg/m3. 

Based on these test results, the inspector determined that the 

exposure of the sampled welder was above the allowable TLV for vanadium 

fume, and he issued to Unocal a citation, pursuant to section 104(a) of 

the Mine Act, 30 U.S.C. § 814(a), alleging a violation of sections 

57.5001/.5005. The citation states in relevant part: 

The welder was exposed to .0678 mg/m3 of Vanadium 

fume whereas Vanadium fume has a ceiling limit of 

.05 mg/m3 and should not be exceeded. Personal 

respiratory protection was not being worn by the 

employee while he was welding .••• 

Subsequently, the inspector modified the citation by designating the 

violation as involving a significant and substantial contribution to a 

mine health hazard. 4/ Unocal contested both the citation alleging a 

violation of section-57.5001/57.5005 and the associated significant and 

substantial finding. In particular, Unocal argued that MSHA's vanadium 

fume sampling and analysis procedures were defective and that, therefore, the Secretary had not proven the violation. 

In his decision, Judge Lasher concluded that the operator had 

violated sections 57.5001/.5005 by exceeding the TLV for vanadium fume 

during the cited welding operation. 9 FMSHRC at 285-94. Preliminarily, 

the judge noted that the form of vanadium at which section 57.5001 is 

directed under the incorporated ACGIH TLVs is v205 although the TLV is 

expressed, and sampled for, in terms of vanadium. 9 FMSHRC at 285-86. 

The judge further noted that the "violation created" by section 57.5001 

in this respect is "for exceeding the TLVs for Vanadium fume or Vanadium 

dust." Id. The judge fourid that the application of heat to the 

vanadium welding rods during welding vaporizes the vanadium and that, if 

the vaporous vanadium is mixed with air, V205 results. 9 FMSHRC at 287. 

4/ The "significant and substantial" finding is drawn from section 

l04(d)(l) of the Mine Act, which provides in relevant part: 

If, upon any inspection of a coal or other mine, 

an authorized representative of the Secretary finds 

that there has been a violation of any mandatory 

health or safety standard, and if he also finds 

that, while the conditions created by such violation 

do not cause imminent danger, such violation is of 

such nature as could significantly and substantially 

contribute to the cause and effect of a coal or 

other mine safety or health hazard •.. he shall 

include such finding in any citation given to the 

operator under this chapter .... 

30 u.s.c. § 814(d(l). 

293 
Based on the testimony of MSHA's witness Richard L. Duran, an MSHA 

industrial hygienist, the judge found, inter alia, that the presence of, 

vanadium in vanadium fume necessarily implies the presence of vanadium 

pentoxide in the fume; that the oxide is heavier than the element; that 

the vanadium fume TLV of .OS mg/m3 is equivalent to a v2os reading of 

two and one-half times such level; and that the sample value of .0678 

mg/m3 in this case would indicate an exposure to v2os at two and onehalf times that amount. 9 FMSHRC at 286-87; Tr. 102, 168. 11 

The judge related in detail how Inspector Dennehy had tested for 

and obtained the vanadium fume sample. 9 FMSHRC at 286-87. The judge 

accepted the inspector's calculation of a .0678 mg/m3 exposure value for 

vanadium fume, some 3S percent in excess of the TLV ceiling level of .OS 

mg/m3 for the fume. 9 FMSHRC at 287-88. The judge found that the 

inspector had used the correct testing equipment and procedures and 

rejected an extensive Unocal challenge that the inspector's fume samples 

were contaminated with vanadium dust. 9 FMSHRC at 287-94. Given these 

findings, the judge concluded that an overexposure violation had been 

established. 9 FMSHRC at 294. 

Having found a violation of sections S7.S001/.SOOS, the judge 

addressed the issue of whether the violation was significant and 

substantial. Citing the general Commission test for determining a 

significant and substantial violation as set forth in Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 82S (April 1981), Mathies Coal Co., 

6 FMSHRC 1 (1984), the judge found that the violation of sections 

S7.S001/.SOOS contributed to a "measure of danger" to health. 9 FMSHRC 

at 29S. The judge defined the crucial issue as "whet~er the Secretary 

established that there existed a reasonable likelihood that the hazard 

contributed to would result in an injury (illness)." Id. , · 

The judge then summarized Duran's testimony to the effect that 

overexposure to vanadium "could" create serious health hazards; that 

bronchial irritation, possible pneumonia or asthma could occur; that an 

overexposed employee could become sensitized after repeated doses; and 

that exposure to a level of .0678 mg/m3 could cause a cough, sore 

throat, breathing difficulty and other flu-like symptoms. 9 FMSHRC at 

296; Tr. lOS-111. The judge described Duran's testimony as to the 

likelihood of illness or injury as being of a "speculative complexion." 

9 FMSHRC at 296. 

The contrary testimony of Unocal's expert witness, Paul Ferguson, 

a Ph.D in toxicology, was summarized by the judge as concluding that "an 

.0678 exposure to vanadium fume would not cause an injury resulting in 

11 At oral argument in this matter, counsel for the Secretary stated 

that any constant correlation of two and one-half times for the 

respective values of vanadium and V20s in vanadium fume could not be 

made "on the basis of what we have in the record," and that the 

Secretary was willing to rest, in general, upon the factual premise that 

"the expression of the measurement of vanadium is going to be less than 

the expression of the measurement as vanadium pentoxide." Tr. Or. Arg. 

s. 8-9. 

294 
lost work days; that there ~as not a reasonable likelihood that such an 

exposure wou.ld result in an illness; and that there was not a reasonable 

likelihood that any resulting illness would be of a reasonably serious 

nature." 9 FMSHRC at 296; Tr. 215-17. The judge accepted Ferguson's 

testimony that ".1 milligrams per cubic meter is the lowest level" at 

which any symptoms such as coughing or slight irritation appear, and the 

".05 limit includes a safety factor that to the best of our knowledge, 

would provide no symptoms." Id. Crediting Ferguson's testimony, the 

judge stated: 

Dr. Ferguson's opinion that there was not a 

reasonable likelihood of an injury (illness) 

occurring at the level of exposure detected by 

Inspector Dennehy is, in view of its positive and 

convincing tenor and supportive rationale, accepted. 

9 FMSHRC at 297. 

The judge also concluded that the presumption of a significant and 

substantial health violation announced by the Commission with respect to 

violations of the standard covering respirable dust in coal mines in 

Consolidation Coal Co., 8 FMSHRC 890 (June 1986), aff'd, 824 F.2d 1071 

(D.C. Cir. 1987) ("Consol" decision), did not apply to the vanadium 

overexposure violation involved in this case. Id. Accordingly, the 

judge determined that the violation was not of a significant and 

substantial nature. Id. 

Unocal did not seek review of the judge's determination that a 

violation occurred, but the Secretary sought and was granted review of 

the judge's significant and substantial findings. The Secretary asserts 

before us that a violation of sections 57.5001/.5005 is presumptively 

significant and substantial and that the judge failed to apply properly 

the Commission's decision in Consol, supra. Closely related to this 

argument is the Secretary's contention that by placing a C limit on the 

vanadium fume TLV, the Secretary has made a regulatory determination 

that violative exposures above that limit are, per se, of a significant 

and substantial nature. The Secretary also argues that, in any event, 

the evidence of record does not support the judge's finding that the 

violation was not of a significant and substantial nature. We disagree. 

II. 

We first discuss the proper test for determining whether the 

violation at issue was of a significant and substantial nature. In 

National Gypsum, supra, the Commission announced its general test for 

determination of significant and substantial violations: 

[A] violation is of such nature as could 

significantly and substantially contribute to the 

cause and effect of a mine safety or health hazard 

if, based upon the particular facts surrounding that 

violation, there exists a reasonable likelihood that 

the hazard contributed to will result in an injury 

or illness of a reasonably serious nature. 

295 
3 FMSHRC at 825. Consonant with the Mine Act's significant and 

substantial phraseology and the Act's overall enforcement scheme, we 

also stated: 

[A] violation "significantly and substantially" 

contributes .to the cause and effect of a hazard if 

the violation could be a major cause of a danger to 

safety or health. In other words, the contribution 

to cause and effect must be significant and 

substantial. 

3 FMSHRC at 827 (footnote omitted). See also U.S. Steel Mining Co., 

6 FMSHRC 1834, 1836 (August 1984); Consolidation Coal Co., 6 FMSHRC 34, 

37 (January 1984); Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984). 

Thus, the violation must be a major cause of a danger to safety or 

health. 

In Mathies Coal Co., supra, we further discussed the elements that 

establish, under National Gypsum, whether a violation of a mandatory 

safety standard is significant and substantial: 

[T]he 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; (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. 

6 FMSHRC at 3-4 (footnote omitted). In Consol, supra, we applied the 

Mathies framework to violations of mandatory health standards: 

Adapting this test to a violation of a mandatory 

health standard ••• results in the following 

formulation of the necessary elements to support a 

significant and substantial finding: (1) the 

underlying violation of a mandatory health standard; 

(2) a discrete health hazard--a measure of danger to 

health--contributed to by the violation; (3) a 

reasonable likelihood that the health hazard 

contributed to will result in an illness; and (4) a 

reasonable likelihood that the illness in question 

will be of a reasonably serious nature. 

8 FMSHRC at 897. 

In employing this test in Consol with respect to a violation of 

section 70.lOO(a), the mandatory standard addressing respirable dust in 

coal mines, we recognized that proof of the third element -- a 

reasonable likelihood that the health hazard contributed to will result 

in an illness -- would be somewhat elusive as to the development of 

insidious, progressive lung disease as a consequence of a single 

overexposure. 8 FMSHRC at 898-99. However, taking into account the 

296 
Mine Act's "fundamental purpose" in preventing pneumoconiosis and 

related lung diseases caused by overexposure to respirable dust in coal 

mines, we held that in all cases where a violation of 30 C.F.R. 

70.lOO(a) is proved, "a [rebuttable] presumption that the violation is 

significant and substantial is appropriate." 8 FMSHRC at 899. This 

holding was based upon the overwhelming evidence in the record of the 

debilitating health hazard associated with overexposure to respirable 

dust, upon extensive reference to the pertinent legislative history, and 

upon Congress' stated goal in limiting miners' exposure to respirable 

dust in coal mine atmospheres. 8 FMSHRC at 895-99. The United States 

Court of Appeals for the District of Columbia Circuit agreed that once 

"the Commission had determined on the basis of medical evidence that any 

violation of the respirable dust standard should be considered 

significant and substantial, it would be meaningless to require that the 

same findings be made in each individual case in which a violation 

occurs" and affirmed the decision. 824 F.2d at 1084. 

The Secretary argues that a Consol-type presumption is appropriate 

here and that the C limit applicable to vanadium fume requires the same 

legal result. This specific argument was not made at the hearing level 

and, except for good cause shown, no assignment of error by a party may 

rely upon any question of fact or law upon which the judge has not been 

afforded an opportunity to pass. 30 U.S.C. § 823(d)(2)(A) (iii). The 

Secretary has not shown any cause why this argument was not made to the 

judge. Furthermore, our holding in Consol was made in the specific 

context of respirable dust in coal mines. As discussed in Consol 

(8 FMSHRC at 895-99), the presumption that violations of the respirable 

dust standard are of a significant and substantial nature was 

established based on the pertinent legislative history and on the 

evidence adduced in that case. 

In contrast, the legislative history is silent as to vanadium 

fume. Nor is there evidence in the record of this case regarding 

equivalent effects of overexposure to vanadium fume. MSHA's industrial 

hygienist, Duran, stated that impairment from overexposure to vanadium 

fume is transitory. Tr. 107. Ferguson's testimony that there is no 

disease associated with overexposure to vanadium fume (unlike 

overexposure to respirable dust in coal mines) was not rebutted by the 

Secretary. Tr. 214. Further, it is undisputed that the results of 

exposure are not cumulative, but are reversible upon removal from 

exposure. (The parties stipulated that overexposure to vanadium fume 

does not result in permanently disabling illness or injury. Tr. 156.) 

In sum, we do not find a requisite basis in either the present 

record or the legislative history to hold that when the Secretary proves 

a violation of sections 57.5001/.5005 based upon overexposure to 

vanadium fume, a presumption arises that the violation is of a 

significant and substantial nature. £/ 

£/ We emphasize that our conclusions with respect to a presumption 

are based on the record developed in this case. We do not intimate that 

the Secretary may not, in the future, be able to adduce proof sufficient 

to establish a presumption that a violation with respect to overexposure 

297 
The Secretary also argues that the assignment of the C limit to 

vanadium fume constitutes a regulatory determination that any exposure 

over the .05 mg/m3 limit creates a reasonable likelihood of illness that 

is not subject to challenge. As with her argument with respect to a 

presumption, this argument was not made at the hearing level and the 

Secretary has shown no good cause why it was not made. 

Therefore, as the judge concluded, the appropriate test in this 

case for determining whether the violation is of a significant and 

substantial nature is the analytical framework set out in National 

Gypsum and Mathies, and subsequently extended to violations of mandatory 

health standards under Consol. 

III. 

The primary question on review, accordingly, is whether the judge 

correctly applied the Mathies/Consol elements of proof. There is no 

dispute on review with the judge's finding that the violation occurred 

(the first element) and that a measure of danger to health was posed by 

the violation (the second element). The third element, a reasonable 

likelihood that the health hazard contributed to will result in an 

illness, was resolved by the judge adversely to the Secretary. 9 FMSHRC 

at 296-97. We conclude that substantial evidence supports that 

determination. 

It bears re-emphasis that the Secretary has the burden of proof as 

to the significant and substantial nature of the violatio~ in issue. 

The Secretary's case at hearing rested upon the testimony of Duran. 

Unocal relied upon the testimony of Ferguson. Judge Lasher did not have 

the opportunity to observe personally the demeanor of these witnesses, 

but his decision summarizes and evaluates their testimony. As the judge 

noted, Duran, when testifying regarding possible illness caused by an 

exposure to vanadium fume of .0678 mg/m3, consistently referred to 

symptoms of illness that "could" or "might" occur. 9 FMSHRC at 296; 

Tr. 102-11. Thus, Duran testified that bronchial irritation, as well as 

possibly pneumonia or asthma, "could" occur as a result of overexposure 

to vanadium. Tr. 106. Another "possible" effect of vanadium overexposure, depending on the individual, could be "sensitization" --

meaning that after being exposed on one occasion, an individual might 

experience more severe symptoms with the next exposure at the same or 

even lower concentration. Tr. 106-11. Duran indicated that the sampled 

incursion of 35 percent over the TLV would be an exposure of a 

"moderate" level. Tr. 106-10. Duran further indicated that, while 

symptoms would vary from person to person, an employee exposed to 

vanadium at a certain level "might" develop symptoms. Tr. 110. He 

testified that an employee exposed to .0678 milligrams per cubic meter 

of vanadium "could" develop a cough, sore throat and have trouble 

breathing and could also develop symptoms similar to those encountered 

with the flu. Tr. 110-11. 

to vanadium fume or to any other particular airborne contaminant with a 

C limit is significant and substantial. Our point is that no such basis 

for a presumption has been demonstrated in this case. 

298 
We agree with the judge (9 FMSHRC at 296) that Duran did not 

consistently testify that any of the symptoms to which he referred were 

reasonably likely to occur at the sampled overexposure level of .0678 

mg/m3. Like the judge, we find that Duran's testimony is "speculative" 

and that it does not ineluctably lead to an inference that a reasonable 

likelihood of illness would be associated with the overexposure at 

issue. 

The Secretary would have us reverse the judge's factual findings 

largely on the basis that neither Unocal's expert, Ferguson, nor the 

judge himself, comprehended the distinction between vanadium and V205 

and the consideration that any concentration of vanadium in vanadium 

fume necessarily implies an even greater concentration of V205 in the 

fume. The Secretary vigorously asserts on review that the .0678 mg/m3 

sample of vanadium at issue implied a concentration of V205 above those 

levels of V205 noted in scientific and medical literature as likely to 

produce symptoms of illness. 

However, both the witness, Ferguson, and the judge understood the 

distinction between vanadium and V205 and the general quantitative 

correlation between the element and its oxide~ See 9 FMSHRC at 285-86; 

Tr. 206-17, 223-27. While it is true that Ferguson did not explain 

fully the specific level of exposure to v2o5 implied by the .0678 mg/m3 

sample of vanadium obtained in this case (see, e.g., Tr. 223-27), 

nevertheless, he clearly stated his opinion that this particular sample 

level of vanadium did not reflect a level of exposure reasonably likely 

to result in an illness. Tr. 215-16. Further, as the Secretary's 

counsel's statements at oral argument before us indicated (see n.5 

supra), the precise correlation between vanadium and V205 in vanadium 

fume is simply not clear on the existing trial record -- either from the 

exhibits accepted into evidence at the hearing or from the testimony of 

any of the witnesses. Despite a measure of uncertainty associated with 

this consideration, it was the Secretary, not Unocal, who bore the 

burden of establishing through probative evidence the significant and 

substantial nature of the violation. Based on our review of the 

evidence properly before us, we are satisfied that neither Duran's 

largely speculative testimony alone nor his testimony considered 

together with what may be regarded as any ambiguity or incompleteness in 

Ferguson's testimony amounts to the level of proof necessary to make out 

the Secretary's case in this respect. 

On review, the Secretary also argues that a 1967 study conducted 

by Zenz and Berg, a brief, excerpted summary of which was received into 

evidence as Exhibit R-3, demonstrates that the exposure to vanadium fume 

encountered in this case was reasonably likely to result in an 

illness. Zf Essentially, that summary of the Zenz-Berg study indicates 

Zf Exhibit R-3 states in relevant part: 

Zenz and Berg, in studying the effects of exposure 

to respirable v205 dust in five human volunteers, 

found severe upper respiratory tract irritation in 

the form of persistent productive cough at an 

299 
that two subjects in a controlled experiment, following an eight-hour 

exposure to vanadium dust at a level of 0.1 mg/m3, developed delayed 

cough and. increased m~. Left unestablished by this excerpt of a 

summary of the study or any other evidence of record is a showing of the 

asserted relationship between that scientific experiment involving, in 

relevant part, two subjects, and the violation at issue -- which 

involved exposure to vanadium fume, not dust, for an unspecified amount 

of time during the sampling period. We also note that Inspector 

Dennehy, who conducted the vanadium exposure testing, testified that no 

symptoms of illness were observed or complained of on the day of the 

overexposure (Tr. 71, 73-74), nor did the Secretary, at hearing, allege 

that any symptoms of illness subsequently developed. It was incumbent 

upon the Secretary to explain and establish any asserted relationship 

between the Zenz-Berg results and the violation in question through 

expert testimony or other corroborating evidence, and this, we conclude, 

the Secretary failed to do. Accordingly, we are unable to find that the 

information contained in Exhibit R-3 is sufficient to establish the 

third element of proof of a significant and substantial violation. 

Our decision affirming the judge's conclusion that the cited 

violation is not a significant and substantial contribution to a mine 

health hazard rests, as it must, upon the record developed in this case 

at trial. Having failed at the hearing to prove the significant and 

substantial nature of the violation, the Secretary, in her brief on 

review, presents detailed arguments and conclusions based upon 

scientific publications and studies, the contents of which were not 

admitted into evidence or otherwise incorporated into the record by the 

judge. 8/ 

At the hearing, the trial judge took official notice only of pages 

1-54 of the 1973 ACGIH TLVs. Tr. 7. The only study reference received 

into evidence by the judge was the three-paragraph summary of the Zenzaverage concentration of 0.2 mg/m3 during a single 

eight-hour exposure. No systematic complaints were 

evident. Exposure of two previously unexposed 

volunteers at a level of 0.1 mg/m3 was still 

productive of a delayed cough and increased mucus. 

~/ At the hearing, counsel for Unocal asked the judge to take 

official notice of the contents of the NIOSH criteria and nine other 

publications. Tr. 217. The judge properly refused, admitting the list 

only to show the publications that Ferguson had read. Tr. 217, Exh. R5. Official notice can be taken of the existence or truth of a fact or 

other extra-record information that is not the subject of testimony but 

is commonly known, or can safely be assumed, to be true. However, such 

notice cannot extend to the acceptance as fact of scientific 

publications and studies, the truth of whose contents is the subject of 

reasonable dispute by the opposing parties. See McCormick on Evidence, 

3rd Ed. §§ 329, 330 (pp. 923-927, 1028-1032); Fed. R. Evid. 201. We 

note that the Secretary made no effort to have the studies themselves 

admitted into evidence, nor did she raise any issue in her petition for 

review with respect to the judge's refusal to take official notice of 

the contents of the studies. 

300 
Berg experiments discussed above. During his testimony, Duran cited "a 

Patty set of·books on industrial health including toxicology" (Tr. 127), 

the ACGIH TLVs, 1980 TLV publications, and "a study by Zenz and Berg, I 

believe, in 1967" as material that he had "reviewed and read." (Tr. 

151.) Duran did not discuss or evaluate the relevant substantive 

contents of these various materials. Based solely on these limited 

references to what Duran had read, the Secretary on review has premised 

much of her argument upon her counsel's interpretation of material found 

throughout the NIOSH Criteria for A Recommended Standard .•• 

Occupational Exposure to Vanadium (1977) and the other sources mentioned 

in passing by Duran. See, e.g., S. Br. at 3, 4, 9, 16, 17; and S. Reply 

Br. 5-7, 9-13, 15-16. 

At oral argument, counsel for Unocal has argued that the 

Commission should not base its decision upon materials whose content was 

not included in the record or accept opposing counsel's interpretations 

and evaluations of scientific information and toxicological studies that 

were not presented to the judge through expert witnesses subject to 

cross-examination. Unocal asserts that such materials are outside the 

expertise of either counsel or the Commission to evaluate adequately and 

independently without the assistance of such trial testimony. Tr. Oral 

Arg. 23-29. We concur. 

As we have noted with respect to the Secretary's presumption and C 

limit arguments, the Mine Act expressly provides that "[e]xcept for good 

cause shown, no assignment of error by any party shall rely on a 

question of fact or law upon which the administrative law judge had not 

been afforded an opportunity to pass." 30 U.S.C. § 823(d)(2)(A)(iii). 

Similarly, section 113(d)(2)(C) of the Mine Act, 30 U.S.C. 

§ 826(d)(2)(C), states in relevant part that the record on review of a 

judge's decision consists of "the record upon which the decision of the 

judge was based •••• " The Commission has made clear that these 

provisions "evince Congress' view that the adjudication process is best 

served if the administrative law judge is first given the opportunity to 

admit and examine all the evidence before making his decision." Climax 

Molybdenum Co., 1 FMSHRC 1499, 1500, (October 1979). In short, it is 

the obligation of parties to prove their case before the judge, not on 

review by reference to detailed material not presented to the judge and 

not subject to the rigors of cross-examination. This rule of procedure 

under the Mine Act accords with settled principles of administrative and 

general law limiting the record on review to the record developed before 

the trier of fact. See, ~· Melong v. Micronesian Claims Comm'n, 643 

F.2d 10, 12 n.5 (D.C. Cir. 1980). 

Accordingly, we decline to consider the copious scientific 

literature presented by the Secretary for the first time in this case on 

301 
review. As we have emphasized, our conclusion is based solely on the 

record developed before the judge. In light of our determination that 

substantial evidence supports the judge's finding that the Secretary 

failed to establish the third Mathies/Consol criterion, we conclude that 

the judge properly determined that the violation was not of a 

significant and substantial nature. We do not reach the fourth 

criterion as to whether an illness would have been of a reasonably 

serious nature. 

IV. 

For the foregoing reasons, the decision of the Administrative Law 

Judge is affirmed. 

Richard ~~ V. Backley, Commi~ 

L. Clair Nelson, Commissioner 

302 
Commissioner Lastowka, concurring: 

I agree with the majority's ultimate conclusion that substantial evidence 

supports the administrative law judge's finding that the violation at issue was 

not of a significant and substantial nature. I disagree, however, with their 

affirmation of the judge's finding that the Secretary failed to establish the 

third element of the test for significant and substantial health violations as 

set forth in Consolidation Coal Co., 8 FMSHRC 890 (June 1986), aff'd, 

Consolidation Coal Co. v. FMSHRC, 824 F. 2d 1071 (D. C. Cir. 1987), i.e., that 

"there was not a reasonable likelihood of an injury (illness) occurring at the 

level of exposure detected." 9 FMSHRC at 297 (ALJ), I believe that the record 

establishes that the pivotal evidence relied on by the judge and the majority 

in support of their finding is flawed and that a proper reading of the record 

establishes that the overexposure to vanadium pentoxide at issue was reasonably 

likely to result in an illness. 

Nevertheless, I concur in the conclusion that the violation was not 

significant and substantial on the separate ground that the Secretary failed to 

establish the fourth element of the Consolidation Coal Co. test, i.e., the 

Secretary failed to prove that any illness caused or contributed to by the 

overexposure to vanadium pentoxide in the present case would be of a reasonably 

serious nature. 

It is not disputed that a miner was exposed to a level of vanadium 

pentoxide in excess of the limit set in the applicable mandatory standard. To 

establish that this violation was of a significant and substantial nature, 

however, three additional elements must be proved: a discrete health hazard 

contributed to by the violation; a reasonable likelihood that the health hazard 

contributed to will result in an illness; and a reasonable likelihood that the 

illness in question will be of a reasonably serious nature. Consolidation Coal 

Co., supra. As the majority notes, the judge found and it is not disputed on 

review that the Secretary proved that the violation posed a discrete danger to 

health. Majority opinion at 10. Thus, the next inquiry is whether a reasonable 

likelihood that the hazard contributed to would result in an illness was 

established. 

The judge found that a reasonable likelihood of resulting illness was not 

established and the majority agrees, The basis for their conclusion is that 

the testimony of the Secretary's chief witness, Duran, is "speculative" (9 FMSHRC 

at 296; Majority op. at 11), and "does not ineluctably lead to an inference that 

a reasonable likelihood of illness would be associated with the exposure at 

issue." Majority op. at 11. In contrast, they accept the testimony of Unocal's 

chief witness Ferguson, credited by the judge, as supportive of the finding of 

no reasonable likelihood. 9 FMSHRC at 297; Majority op. at 7, 10. 

My colleagues reject the Secretary's arguments on review that a fundamental 

premise of Ferguson's testimony concerning the exposure level at issue and the 

likely consequences thereof ·was plainly flawed by a failure to consistently 

distinguish between vanadium ( "V") and vanadium pentoxide ( "V205"), Despite 

their characterization of Ferguson's testimony as "ambigu[ous]" and 

"incomplete[]" (Majority op. at 11), they neverthele"Bs conclude that both 

Ferguson and the judge "understood" the distinction between vanadium and vanadium 

303 
pentoxide and their "general quantitative correlation". Majority op, at 11. 

They further decline the Secretary's invitation to consider various scientific 

studies and reports referenced by the Secretary in support of her position, but 

not entered into the record below. They state: 

[I]t is the obligation of parties to prove their case before the 

judge, not on review by reference to detailed material not presented 

to the judge and not subject to the rigors of cross-examination •••• 

Accordingly, we decline to consider the copious scientific 

literature presented by the Secretary for the first time in this 

case on review. As we have emphasized, our conclusion is based 

solely on the record developed before the judge. 

Majority op. at 13 (emphasis in original). 

I must respectfully disagree with my colleagues' rationale for upholding 

the administrative law judge's finding of no reasonable likelihood of an 

illness. First, I believe that it is apparent on the face of the record, as the 

Secretary asserts, that Ferguson made a fundamental misstatement in 

contradiction of other parts of his own testimony, and that this mistaken 

testimony forms the basis for the finding challenged by the Secretary. Second, 

despite the majority's protest, review of copious scientific literature outside 

the record is not necessary in order to determine that a reasonable likelihood 

of an illness was established by the Secretary. Quite to the contrary, that 

there is a reasonable likelihood of an illness resulting from the exposure level 

at issue is supported by the evidence of record, particularly Ferguson's own 

testimony. 

I agree with the majority that the judge properly found "that the form of 

vanadium at which section 57.5001 is directed ... is V205 [vanadium pentoxide] 

although the TLV [threshold limit value] is expressed, and sampled for in terms 

of vanadium [V]. 9 FMSHRC at 285-86 ." Majority op. at 5-6. As the majority 

further notes, the judge found based on the record that for the sample at issue 

there would have been two and one-half times as much vanadium pentoxide as 

vanadium. 9 FMSHRC at 287; Majority op. at 6; Tr. at 102. It is this 

relationship between vanadium and vanadium pentoxide that Ferguson apparently 

did not account for in the crucial part of his testimony relied on by the judge 

and excused by the majority. 

In light of the 2.5 to 1 relationship testified to by Duran and found as 

a fact by the judge, the air sample at issue indicating an exposure level of 

0.0678 mg vanadium (V)/m3 indicates a corresponding level of 0.1695 mg vanadium 

pentoxide (V205 )/m3 • (The parties apparently have rounded this 0.1695 figure 

down to 0.1 mg (Sec. Br. at 17; Unocal Br. at 4) and I will hereafter do the 

same. In this regard, I note that Unocal attached to its brief on review 

portions of the NIOSH Criteria For A Recommended Standard ••• Occupational 

Exposure To Vanadium (1977). Unocal states that this document "is clearly the 

type of scientific document of which the Commission may take official notice~·" 

Unocal Br. at 4 n.3. Accordingly, I note that this document indicates that an 

exposure level of , 06 mg vanadium/m3 equals an exposure of 0 .1 mg vanadium 

pentoxide/m3 • See NIOSH Criteria Document at 73, Attachmeht 3 to Unocal' s brief). 

304 
Both Duran and Ferguson testified at the hearing as to the landmark study 

by Z~ni and Berg entitled "Human Responses to Controlled Vanadium Pentoxide 

Exposure", 14 Arch Environ Health 709 (1967). In fact, not only did Ferguson 

expressly list this study as one of the references supporting his testimony 

(Exh. R-5), but Unocal introduced into evidence at the hearing a summary of the 

study. Exh. R-3. This summary of the Zenz-Berg study states: 

Zenz and Berg; in studying the effects of exposure to respirable 

v2o5 dust in five human volunteers, found severe upper respiratory 

tract irritation in the form of persistent cough at an average concentration of 0.2 mg/ml during a single eight-hour exposure. No 

systemic complaints were evident. Exposure of two previously 

unexposed volunteers at a level of 0.1 mg/ml was still productive of 

a delayed cough and increased mucus. The authors concluded that the 

recommended TLV of 0.5 mg/l should be revised ••••• In light of the 

above reports, especially the findings of Zenz and Berg, a TLV of 

0.05 mg/ml for respirable V205 is recommended. 

Exh. R-3 at 426 (emphasis added). Thus, Unocal's Exh. R-3 indicates that the 

single exposure to vanadium pentoxide at issue would cause a delayed cough and 

mucus production. 

The next question that arises is whether such a human response to exposure 

to vanadium pentoxide constitutes an "illness". On this specific question, the 

evidence in this record is in the affirmative. Dr. Ferguson himself testified 

as follows: 

Based on the scientific literature, .1 milligrams per cubic meter 

is the lowest level where we see symptoms. They're not debilitating 

symptoms, but an individual will have a slight irritation and have 

some coughing. That can be defined as an illness. We don't want 

to allow our workers to be exposed to levels -- how minor do cause 

symptoms. There are no specific scientific literature that tested 

men and women at .05. That lowest level is really a .1 in a 

controlled experimental condition by Zenz and Berg is what the TLV 

is based on and they have that as a safety factor. 

Tr. 237-38; see also Tr. 110-11, 209-13. Here, it is important to stress that 

the 0.1 exposure level in the Zenz-Berg study referenced by Ferguson involves 

vanadium pentoxide exposure. As discussed previously, the 0.0678 vanadium 

exposure level in this case, when expressed in terms of vanadium pentoxide, 

exceeds the 0.1 level identified in Zenz-Berg as producing adverse health 

effects. Thus, although Ferguson later testified that no illness would result 

from the 0.0678 vanadium exposure in this case (Tr. 216), it is apparent that 

Ferguson mistakenly believed that this exposure level was less than the 0.1 

vanadium pentoxide exposure level documented in Zenz-Berg when, in fact, it 

exceeded the Zenz-Berg level. 

Given Ferguson's testimony that the human response to vanadium pentoxide 

exposure at a 0.1 level "can be defined as an illness"'(Tr. 237), and Duran's 

testi~ony that at this level illness was likely to be the result (Tr. 111, 160), 

305 
the judge's finding of no reasonable likelihood of illness, resting as it does 

on Ferguson's flawed testimony, is without adequate foundation as ·is; the 

majority's affirmance of this finding. · ' 

Nevertheless, it is important for me to stress the limits of lllY own 

conclusion in this case. The question of what constitutes an "illness" may seem 

relatively straightforward, but it is not. The Secretary''s ·mine safety 

standards define an "occupational illness" as "an illness or disease ••• which 

may have resulted from work at a mine or for which an award of compensation is 

made" (30 C.F.R. 50.2(f)), but the standards contain no special definition of 

"illness". But ~ 30 c. F. R. 50. 20-6(b)( 7 )( i-vii) (listing some examples of 

occupational illnesses). Further, there often is dispute even within the medical 

profession as to whether a particular condition or human response is merely a 

symptom of a possible illness or an illness itself. 

Apart from the direct impact on the affected individual, whether a 

condition is an "illness" has important ramifications under the Mine Act 

particularly concerning compliance with the reporting requirements imposed by 

the Secretary in 30 C.F.R. Part 50, "Notification, Investigation, Reports and 

Records of Accidents, Injuries, Illnesses, Employment, and Coal Production in 

Mines". In this regard, I note the Secretary's ongoing inquiry into the need 

for improving illness, injury and accident reporting under both the Mine Safety 

Act and the Occupational Safety and Health Act of 1970, 29 u.s.c. 651 et seq. 

See, ~' 10 BNA Mine Safety and Health Reporter at 97, 244-45 (July 22 and 

September 16, 1988). Among the concerns of this effort is the need for 

clarifying precisely what constitutes an "occupational illness". See "The 

Keystone National Policy Dialogue On Work-Related Illness and Injury 

Recordkeeping", January 31, 1989, The Keystone Center, Keystone, Colorado, at 

57-71. 

This ongoing effort to improve the reporting of illnesses and injuries is 

indicative of the complexity of the challenge of properly categorizing and 

reporting illnesses and cautions against making broadly applicable conclusions 

on the basis of a record as limited as the one before us in the present case. 

Nevertheless, because the expert testimony in this case characterized the human 

response to the overexposure to vanadium pentoxide at issue as an "illness", I 

have no basis for drawing any other conclusion. For the above reasons, I must 

disagree with the majority's affirmance of the judge's finding that the third 

element of the test for significant and substantial violations was not 

established. 

Proceeding to the fourth and final element of the test, i.e., whether the 

illness caused or contributed to by the violation was of a reasonably serious 

nature, I find insufficient evidence addressing whether the coughing and mucus 

formation caused by the level of overexposure in this case indicates an illness 

of a reasonably serious nature. Most of the Secretary's evidence was focused 

on demonstrating the potential serious consequences of either long-term exposure 

or brief exposures to very high concentrations of vanadium or vanadium 

pentoxide. Little effort was directed at establishing whether the coughing and 

mucus formation likely to result from a single overexposure to a level of 0.0678 

mg vanadium/m3 are considered indicative of an illness of a reasonably serious 

nature. See Tr. 111. Nor was there any evidence that the involved miner had 

306 
suf f e.red or was likely to suffer continued overexposure to vanadium or vanadium 

pentoxide. Thus, I find an insufficient basis in this record for concluding that 

the Secretary established the final element of a significant and substantial 

violation. 

Accordingly, I concur in the majority's affirmance of the judge's vacation 

of the significant and substantial finding. 

Commissioner 

307 
Distribution 

Thomas C. Means, Esq. 

R. Timothy McCrum, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Linda Leasure, Esq. 

Dennis Clark, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Charles O. Strathman, Esq. 

Unocal Corporation 

1201 West 5th Street 

P.O. Box 7600 

Los Angeles, California 90051 

Administrative Law Judge Michael Lasher 

Federal Mine Safety and Health Review Commission 

280 Colonnade Center 

1244 Speer Blvd. 

Denver, Colorado 80204 

308 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

EMERY MINING CORPORATION 

and UTAH POWER & LIGHT 

COMPANY, MINING DIVISION 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

Yiarch 24, 1989 

Docket Nos. WEST 87-130-R, et al. 

ORDER 

Counsel for the cross-petitioners Secretary of Labor and Utah 

Power and Light Company, Mining Division ("UP&L") have filed a joint 

motion seeking a stay of briefing and further proceedings before the 

Commission in this matter until after final disposition by the 

Commission administrative law judge of related proceedings below 

involving Emery Mining Corporation ("Emery"). The motion states that it 

is possible that review ·by the Commission in the present matter may be 

rendered unnecessary by the final resolution of the proceedings below 

involving Emery. 

Upon consideration of the motion, it is granted and briefing and 

other proceedings in this matter are stayed until further notice of the 

Commission. The hearing on the merits involving Emery is scheduled to 

commence before the judge on May 16, 1989, and the parties are directed 

to provide the Commission with a written notification concerning the 

procedural status of those proceedings no later than May 31, 1989. 

For the Commission: 

~ Chairman 

309 
Distribution 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Timothy M. Biddle, Esq. 

Thomas C. Means, Esq. 

Ann R. Klee, Esq. 

Crowell & Moring 

1001.Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

310 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

._5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 3 1989 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

: 

. . 

. . 

. . 

. . 

. . 

Docket No. WEVA 88-197 

A.C. No. 46-01455-03699 

'\ 

Osage No. 3 Mine 

DECISION 

Appearances: Linda M. Henry, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania for the Petitioner~ 

Michael R. Peelish, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania for the 

Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to section 105(d) of the 

Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq., the "Act," charging the Consolidation 

Coal Company {Consol) with two violations of regulatory standards. 

The general issue before me is whether Consol violated the cited 

regulatory standards and, if so~ the appropriate civil penalty to 

be assessed in accordance with section llOti) of the Act. 

Order No. 2944627 issued pursuant to section 104Cd)(2) of 

the Act alleges a "significant and substantial" violation of the 

mine operator's Methane and Dust Control Plan, the •plan", under 

the regulatory standard at 30 C.F.R. § 75.316, and charges as follows:~/ 

1/ Section 104Cd) of the Act provides as follows: 

-Cl) If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that 

there has been a violation of any mandatory health or 

safety standard, and if he also finds that, while the 

conditions created by such violation do not cause 

imminent danger, such violation is of such nature as 

could significantly and substantially contribute to the 

311 
At the 4 Butt belt diive head roller there is no water 

spray at the belt to belt transfer point. There was no 

operating spray for tll:e' :tofj' bef-h-·fit any location along this belt. , ·' · · ,,, '' 1 '' • 

The relevant provisions of the Plan (See Exhibit G-3 page 2) 

provide that at belt to belt transfer points dust control 

practices are to be "fresh air and water sprays." Inspector 

Spencer Shriver, an Electrical Engineer for the Federal Mine 

Safety and Health Administration CMSHA), -was conducting a spot 

electrical inspection on January 7, 1988, at Consol's Osage No. 3 

Mine when he noted that a violation previously cited in the 4 

Butt belt drive area for failure to have operable water sprays 

had apparently not been abated. Company Safety Inspector Dan 

cont'd fn. l; 

cause and effect of a coal or other mine safety or 

health hazard, and if he finds such violation to be 

caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, 

he shall include such finding in any citation given to 

the operator under this Act. If during the same 

inspection or any subsequent inspection of such mine 

within 90 days after the issuance of such citation, an 

authorized representative of the Secretary finds 

another violation of any mandatory health or safety 

standard and finds such violation to be also caused by 

an unwarrantable failure of such operator to so comply, 

he shall forthwith issue an order requiring the 

operator to cause all persons in the area affected by 

such violation, except those persons referred to in 

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. ~ 

If a withdrawal order with respect to any area in a 

coal or other mine has been issued pursuant to 

paragraph Cl>, a withdrawal order shall promptly be 

issued by an authorized representative of the Secr.etary 

who finds upon any subsequent inspection the existence 

in such mine of violations similar to those that 

resulted in the issuance of the withdrawal order under 

paragraph Cl> until such time as an inspection of such 

mine discloses no similar violations. Following an 

inspection of such mine which discloses no similar violatio~s, the provisions of paragraph (1) shall again 

be applicable to that mine. 

312 
Serge stated that water sprays presumably for the coal on the 

belt had been installed two blocks inby the transfer point but 

had not yet been hooked up. Inspector Shriver observed that the 

sprays had been installed as stated but were indeed not hooked up 

and that the inside of the pipe was dry. He also observed that 

the belt was operating and that the top of the belt was 

completely dry. While Shriver could not recall whether coal was 

being transported on the belt Inspector-Trainee Michael Kalich 

who accompanied Shriver, did not see any coal on the belt or coal 

being dumped at the transfer point. 

Consol does not dispute that it did not have operable water 

sprays for the coal on the beltline as charged but argues that a 

spray located 25 to 40 feet from the section tail-piece directed 

to the underside of the top belt was sufficient to meet the 

Plan's requirments. It is clear from the plain language of the 

Plan, however, that the requirement for water sprays at "belt to 

belt" transfer points is in addition to the specific requirements 

in the Plan for sprays directed to the "underside of the belt". 

These are separate and distinct requirements and each must be 

independently complied with (See Exhibit G-3 p.2). Clearly water 

sprays that do not spray the coal being transported on the 

beltline would not meet the need to assure that such coal is 

sufficiently wet to prevent the accumulation of respirable dust 

and float coal dust. The violation is accordingly proven as 

charged. 

Inspector Shriver opined that without water sprays 

functioning in accordance with the Plan there was a possibility 

of generating respirable dust and accumulating float coal dust. 

He noted that float coal dust could lead to an explosion 

resulting in lost time injuries. He thought that the hazards 

were "reasonably likely". There was already some dust in the 

area according to Shriver although not sufficient to constitute a 

violation. Shriver found the area to be "rieither too wet nor to 

dry• II 

On the other hand William Kun, the Safety Supervisor at the 

Osage No. 3 mine, testified that he arrived at the cited area 

within 1 1/2 hours of being notified of the order and found the 

roof and ribs in the area to be white with rock dust and damp.2/ 

He found no float coal-dust. He also observed that there had -

been no problem with float coal _dust at this transfer point. He 

opined that there was no hazard existing as a result of the cited 

conditions. Kun also observed that there had been a spray 

located 150 feet inby the transfer point but it had been taken 

out more than a week before the order was issued because it made 

the coal "overwet". 

2/ Inspector-Trainee Kalich agreed that the area around the belt 

was in fact damp. 

313 
Greg Yanak, Consol's Regional Supervisor for Respirable Dust 

and ~oise Control also testified that he had taken coal samples 

from the cited area and concluded, based on those samples, that 

additional water sprays were not needed at the cited transfer 

point. The evidence also shows that the coal itself is moist 

when extracted and may still be wet at the cited transfer point 

obviating the need for additonal water sprays. Indeed subsequent 

to the issuance of the order at bar the Plan was modified and 

approved by the Secretary to allow operator discretion· as to the 

need for water sprays upon the coal at belt to belt transfer 

points. 

In light of this evidence, the contradictory testimony 

regarding the source of any coal dust and the apparent absence of 

coal on the beltline at the time of the violation from which it 

could be determined whether, indeed, the coal was dry and dusty 

or sufficiently wet to prevent the spread of coal dust, I cannot 

find that the Secretary has met her burden of proving that the 

violation was "significant and substantial". See Secretary v. 

Mathies Coal Co., 6 FMSHRC 1 (1984). For the same reasons the 

Secretary has failed to prove that the violation was anything but 

of low gravity. 

However in light of the undisputed testimony that a 

violation of the same nature had been cited the previous ~ovember 

and in light of the evidence that requirements of the Plan for 

water sprays near belt to belt transfer points was discussed with 

mine officials at that time, it is clear that the violation was 

caused by an aggravated failure to act amounting to more than 

ordinary negligence and therefore by the "unwarrantable failure" 

of the operator to comply. See Youghiogheny and Ohio Coal Co., 9 

FMSHRC 2007 (1987). More specifically the evidence shows that 

following the ~ovember 17, citation for the same type of 

violation, Shriver had discussed with management the need for a 

belt spray at all the transfer locations. Six weeks had 

thereafter elapsed however and no appropriate functional sprays 

were in place. Since it has been stipulated that there were no 

intervening clean inspections between the issuance of the 

precedential section 104Cd>Cl) order and the order at bar it is 

clear that the order must be sustained as an order under section 

104(d)(2) of the Act. See fn.l supra, Secretary v. United States 

Steel Corporation, 6 FMSHRC 1908 (1984). In addition, 

considering all of the criteria under section llOCi> of the Act I 

find that a civil penalty of $300 is appropriate. 

314 
Order No. 2944628, also issued pursuant to section 104Cd)(2) 

of the Act, alleges a violation of the standard at 30 C.F.R. § 

75.810 and charges as follows: 

At the 5 Butt construction power center the 7,200 volt 

energized cable was found to contain a damaged area 

that was not properly repaired~ The cable [sic] outer 

jacket was cut back for a distance of 18 inches 

exposing the ground schielding and p~ase conductors. 

One phase conductor was damaged exposing the bare 

conductor and the ground shielding was partially 

broken •••• 

At the conclusion of the Secretary's case-in-chief, Consol 

moved for a directed verdict on the grounds that the Secretary's 

evidence did not support a violation of the cited standard. The 

Motion for Directed Verdict (See Fed. R. Civ. P.41Cb) applicable 

hereto by virtue of Commission Rule l(b), 29 C.F.R § 2700.l(b)) 

was granted at hearing and the decision supporting that ruling i,s 

set forth below with only non-substantive corrections: 

The motion to amend is too late. The motion for 

directed verdict has been filed. That is the matter 

that is before me and clearly from the undisputed 

evidence presented by the government there is no 

violation of the cited standard, the standard with 

which we have been hearing evidence throughout the 

government's case and upon which the operator has been 

conducting its cross-examination. 

The cited standard 30 C.F.R. § 75.810, reads as 

follows: "In the case of high-voltage cables used as 

trailing cables temporary splices shall not be used and 

all permanent splices shall be made in accordance with 

section 75.604. Terminations and splices in all other 

high voltage cables shall be made in accordance with 

the manufacturer's specifications." 

The evidence in this case is .that the cable at 

issue was neither spliced nor terminated. Clearly then 

the standard cited is not applicable to these 

proceedings and there has been no violation of that 

standard based on the evidence presented. The Motion 

for Directed Verdict is therefore granted. 

315 
ORDER 

Order No. 2944628 is vacated. Order No. 2944627 is affirmed 

as a "non-signficiant and substantial'' order issued under section 

104Cd>C2).of the Act. The Consolidation Coal Company is directed 

to pay civil penalties of $300 for the via ation charged in Order 

No. 2944627 within 30 days of the date of his deci ion. 

Distribution: 

~~. 

Gary elick ~dmi i; trati e 

( 703 \ 56-62 . 

'· 

Law Judge 

Linda M. Henry, Esq., Office of the Solicitor, U.S. Department of 

Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail> 

nt 

316 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 3 1989 

DONALD F. DENU, . . DISCRIMINATION PROCEEDING 

Complainant : 

: Docket No. LAKE 

v. . . VINC CD 88-08 

: 

AMAX COAL COMPANY : Ayrshire Mine 

Respondent. . . 

DECISION 

Appearances: Donald F. Denu, Rockport, Indiana, 

pro se; 

88-123-D 

D. c. Ewigleben, Esq., Amax Coal Company, 

Indianapolis, Indiana for Respondent 

Before: Judge Melick 

This case is before me upon the complaint by Donald F. 

Denu under section 105{c)(3) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seg., the "Act," 

alleging that Amax Coal Company (Amax) discriminated against 

him on February 27, 1988, in violation in section 105(c){l) 

of the Act, after he refused to work under conditions he 

considered to be unsafe.l/ More specifically Mr. Denu 

maintains that he suffered unlawful interference when Amax 

Electrical Supervisor Vernon Knight threatened to discipline 

him for insubordination and when Brent Weber, another Amax 

Supervisor, threatened him by stating that his actions could 

result in his discharge. It appears that Mr. Denu is also 

complaining that he suffered discrimination because he was 

instructed to attend a meeting concerning possible 

disciplinary action. He was told at this meeting"that no 

disciplinary action would be taken for his work refusal. 

!/Section 105(c){l) of the Act provides as follows: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any· coal or other mine subject to 

317 
In order to establish a prima f acie violation of section 

105(c)(l) Mr. Denu must prove by a preponderance of the 

evidence that he engaged in an acti,vi ty protected by that 

section and that he suffered adverse action that was 

motivated in any part by that protected activity. Secretary 

on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 

(1980) rev'd on other grounds sub nom. Consolidation Coal co. 

v. Marshall, 663 F2d 1211 (3rd Cir. 1981); Secretary on 

behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 

(1981). A miper's "work refusal" is protected under 

section lOSCc) of the Act if the miner has a good faith, 

reasonable belief in the existence of a hazardous condition. 

Miller v. FMSHRC, 687 F2d 194 (7th Cir. 1982); Robinette, 

supra. Proper communication of a perceived hazard is also an 

integral component of a protected work refusal and the 

responsibility for the communication of a belief in a hazard 

underlying a work refusal lies with miner. See Dillard Smith 

v. Reco, Inc., 9 FMSHRC 992 (1987). 

The evidence shows that the Complainant was an 

experienced electrician, having 20 years practice in the 

field with nine years as an electrician in the mining 

industry. He also holds training certificates from the 

Department of Labor, Federal Mine Safety and Health 

Administration CMSHA) for high and medium voltage electrical 

work at underground and surface mines. On February 27, 1988, 

Mr. Denu was working the 4:00 p.m. to 12:00 midnight shift at 

the Ayrshire Mine and at around 6:00 p.m. was preparing with ' I 

cont'd fn 1 

this Act because such miner, representative of miners or 

applicant for employment, has filed or made a complaint under 

or related to this Act, including a complaint notifying the 

operator or the operator's agent, or the representative or 

the miners at the coal or other mine of an alleged danger or 

safety or health violation in a coal or other mine or bec~use 

such miner, representative of miners or applicant for 

employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant to 

section 101 or because such representative of miners or 

applicant for employment has instituted or caused to be 

instituted any proceedings under or related to this Act or 

has testified or is about to testify in any such proceeding, 

or because of the exercise by such miner, representative of 

miners or applicant for employment on behalf of himself or 

others of any statutory right afforded by this Act. 

318 
another electrician, Harrison Key, to disconnect and move the 

power cable, running about 1,000 feet between the 6,900 volt 

substation and the 6,900 volt switch box, to allow the 

dragline to tram north along the bench (See Exhibit a-2). 

According to Denu, he and Key proceeded to the 6,900 

volt substation in preparation to pull the power from the 

cable and to disconnect the cable head. They were waiting 

for the dragline to move close to the cable and then for 

instructions from the electrical supervisor Vernon Knight or 

the second shift superintendent Brent Weber or from the 

dragline crew before killing the power. Vernon Knight then 

called on the two-way radio and told them to wait at the 

bench and that he was bringing two other employees, Don Kozar 

and Don Gehlhausen, to kill the power. Shortly thereafter 

Knight radioed again and directed Key and Denu to return to 

the bench to disconnect the cable head at the 6,900 volt 

switch box. During this conversation Denu apparently asked 

Knight if he would be allowed to make a "visual disconnect" 

of the cable at the substation and Knight responded that he 

would not. 

Denu later radioed Knight advising him that in order for 

him to disconnect the cable at the switch box he would need 

to verify that the cable was disconnected and "locked out" at 

the substation. D~nu claims he then told Knight that he wa~ 

refusing to unplug the cable at the switch box. Knight 

apparently then radioed Weber and told Denu to meet them at 

the bench. When Knight and Weber arrived at the bench Knight 

told Denu that he would have to discipline him for 

insubordination. Knight explained that he had been directed 

to do so by Chief Electrician, Larry Ashby. Weber then 

apparently asked Denu if he knew the consequences of his 

actions. Weber disputes Denu's claim that this was stated in 

a threatening manner. 

Denu testified that it was around this time that either 

Weber or Knight then radioed Kozar and Gerlhausen directing 

them to disconnect the cable at the 6,900 volt substation. 

Denu testified that after they performed the disconnect Kozar 

called and said "the head is out an(.::'_ :!:.ying ,_ n , __ he ground". 

There is no dispute that Kozar's statement indicated that the 

subject cable had not only been disconnected but that the 

cable head that connects the cable to the substation was 

lying on the ground. 

According to Denu, Knight again asked if he would unplug 

the head from the switch box. Denu again refused stating 

that he felt that it was unsafe and not according to proper 

319 
lockout procedures.2/ Knight again informed Denu that he 

would have to discipline him for insubordination. Weber also 

again asked Denu "do you know what the consequences are of 

your actions?" Denu again refused to perform the task and 

Knight then instructed Harrison Key to disconnect the cable 

from the switch box. Key, who testified that he did not find 

the procedure to be unsafe, complied. After the disconnect 

Denu put on a pair of "hot gloves" and assisted in moving the 

cable. Shortly thereafter.Weber purportedly told Denu to 

meet with Larry Landes the Human Resources Manager the next 

day at 4:00 p.m. to determine if any disciplinary actiop 

would be taken.~/ 

Denu testified that he had also requested that a safety 

committeeman be present when he refused to disconnect the 

cable from the switch box but one was not immediately 

provided. Later at approximately 10:00 p.m. Bob Lee, the 

second shift Safety Committeeman, along with Knight and Weber 

met in the shop area. Weber again asked if Denu knew the 

consequences of his actions. Denu asked what the 

consequences were and Weber purportedly responded "up to and 

including discharge". Knight apparently also repeated that 

he would have to discipline Denu for insubordination. 

Following the meeting with Landes and others, Landes informed 

Denu there would be no discipline for his actions. 

Under the specific facts of this case I find that Den~ 

did in fact entertain a reasonable, good faith. belief that a 

hazardous condition existed at the time he was dir·ected to 

2; While it appears from the credible evidence that Denu, at 

the time of his work refusal, communicated what he believed 

to be the hazard with only the generalized explanation that 

he needed to make his own "visual disconnect" at the 

substation before disconnecting the cable at the switch box, 

it is clear from the preceding history that Amax officials 

clearly knew the scope of Denu's position, including the need 

for him to perform his own lockout of the cable at the 

substation. It is not disputed that on several occasions 

over the previous weeks Denu had discussed his position in 

this regard with Knight and that Knight had thereafter 

discussed the matter with his supervisor. Under the 

circumstances it is clear that the "communication" 

requirament has been met. 

3/ There is some disagreement over the precise date of this 

meeting. However, for purposes of this decision the precise 

date of that meeting is immaterial. 

320 
disconnect the power cable at the 6,900 volt switch box. 

There is no dispute that it would have been extremely 

hazardous and likely to result in severe burns 

and/or electrocution to have disconnected the cable at the 

switch box if the cable had remained connected and energized 

at the substation or had been reconnected and reenergized. 

There is, similarly, no dispute that Denu was aware of these 

hazards. Not only was Denu an experienced electrician but as 

a safety committeeman was also aware through MSHA 

"Fatalgrams" of the potentially fatal consequences in similar 

if not identical situations. 

Denu explains that unless the same person who 

disconnects the cable at the switch box is the same person 

who deenergizes, disconnects and locks out the cable at the 

substation with his own lock he cannot be assured that the · cable will remain deenergized at the switch box. Indeed even 

if the cable has been disconnected at the substation if it 

has not been properly locked out it could be intentionally or 

unintentionally reconnected. The evidence is undisputed that 

attempting to disconnect a 6,900 volt energized cable at the 

switch box would likely result in severe burns and 

electrocution. 

While, under the circumstances of this case, the chances 

may not have been great that at the time Denu was directed to 

disconnect the cable at the switchbox the.cable had not been 

deenergized, disconnected and not reconnected, the danger of 

serious injury or electrocution was a near certainty if the 

cable at the substation had been inadvertantly reconnected 

and reenergized. Particularly considering these extreme 

consequences I conclude th•t Denu did entertain a reasonable, 

good faith belief in a hazard. Indeed in issuing a 

subsequent directive to miners on disconnect procedures at 

the mine it is apparent that Amax itself. recognized some of 

the same hazards that concerned Mr. Denu. 

In reaching my conclusion herein I have not disregarded 

the evidence that Denu had been told by MSHA Inspector Deuel 

almost a year earlier that "visual disconnects" were not in 

his opinion in violation of the law. However Inspector Deuel 

also apparently told Denu that he nevertheless would not want 

to perform the noted procedure without a visual disconnect 

and lockout of the cable. I have also not disregarded the 

321 
evidence that Denu knew that only one cable exited the 

substation and that it is likely that he also knew that this, 

was the same cable running to the switch box. Nor have I 

disregarded the evidence that Denu knew that two miners, 

Kozar and Gelhausen, were at the substation for the purpose 

of making the disconnect and through direct radio 

communication from Kozar was told that the cable exiting the 

substation had been disconnected. Denu admits that he was 

told by Kozar that "the head is out and lying on the ground". 

However the serious hazards, previously discussed, are not 

significantly diminished by these.considerations. 

Don Kozar, also testified that when the cable is 

disconnected at the substation the lights on the equipment in 

the pit and on the bench, including lights on the switch box 

itself, are extinguished. More specifically, Kozar recalled 

that on the occasion at issue when he and Gelhausen 

disconnected the power at the substation he saw the lights go 

out on the switch box. Kozar conceded however that the 

extinguishment ·Of the light is not a certain method of 

determining whether the cable is completely deenergized. 

The evidence shows that liquid switches such as used at this 

substation have been known to malfunction allowing a cable to 

remain energized even after the switch has apparently been 

disengaged. It is apparent from the record that Denu was 

also aware of this problem at the time of his work refusal. 

Thus under all the circumstances I conclude that Mr. 

Denu did in fact entertain a reasonable, good faith belief in 

a hazard at the time of his work refusal. Amax argues 

however that even assuming the validity of Denu's work 

refusal, Denu suffered no related discrimination or 

interference within the meaning of section 105(c)(l). Amax 

points to the statement by its human resources manager, 

Larry Landis, at the conclusion of the disciplinary meeting 

that no action would be taken against Denu. I find however 

that threats of disciplinary action and discharge directed to 

a miner exercising a protected right clearly constitute 

unlawful interference under section 105(c)(l), whether or not 

those threats are later carried out. Such threats place the 

miner under a cloud of fear of losing his job. In addition, 

while under such threats, a miner would be even less likely 

to exercise his protected rights when future situations might 

clearly warrant such an exercise. Indeed Denu opined that 

because of threats to other miners under similar 

circumstances in the past, Amax had coerced those miners into 

performing unsafe tasks. Such threats therefore clearly run 

counter to the objectives of Section 105(c). 

Accordingly, Mr. Denu has met his burden of proving his 

complaint of_ discrimination. 

322 
ORDER 

The Complaint of Discrimination is GRANTED. The 

parties are hereby directed to confer regarding the amount of 

costs and damages and report to the undersigned on or before 

March 15, 1989, as to whether such costs and damages can be 

stipulated. 

Distribution: 

! t Gary Mel·~ Ad~inist ative 

(703) 75 -6261 

Judge 

Donald F. Denu, R.R. #1, Box 333, Rock ort, IN 7635 

(Certified Mail> · 

' 

D. c. Ewigleben, Esq., Amax Coal Company, P.O. Box 967, 

Indianapolis, IN 46206-0967 (Certified Mail) 

nt 

323 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WESTERN KEY ENTERPRISES, 

Respondent 

MAR 6 1989 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 87-189-M 

A.C. No. 42-00768-05502 

small Fry Mine 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner1 

Kent W. Winterholler, Esq., Parsons, Behle ~ 

Latimer, Salt Lake City, Utah, 

for Respondent. 

Before: Judge Cetti 

This case is before me upon a petition for assessment of 

civil penalties under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq. the "Act". The 

Secretary of Labor, on behalf of the Mine Safety and Health 

Administration, CMSHA), charges the operator of a small uranium 

mine, the Small Fry Mine, with five violations of certain 

mandatory regulatory standards found in 30 C.F.R. 

The operator filed a timely appeal contesting the existence 

of the alleged violations, and the appropriateness of the 

proposed penalties. 

Pursuant to notice an evidentiary hearing was held at Salt 

Lake City, Utah on November 16, 1988. Both oral and documentary 

evidence was presented, post-hearing briefs filed and the case 

submitted for decision on January 8, 1989. 

Stipulations 

The parties agreed to the following stipulations: 

1. The size of the operator's business is small. 

2. The operator is engaged in mining and selling of uranium 

in the United States. Its mining operation affect interstate 

commerce. The operator of the mine is subject to the "Act•. 

324 
3. This Administrative Law Judge has jurisdiction to hear 

and decide this matter. 

4. On November 6, 1986, Rex Ebon Scharf a miner employed by 

respondent was fatally injured by a fall of ground accident at 

the Small Fry Mine. There were no eye witnesses to the accident. 

5. The subject citations were properly served by duly 

authorized representative of the Secretary upon an agent of the 

respondent on the date and place stated therein, and may be 

admitted into evidence for the purpose of establishing its 

issuance. 

6. The exhibits offered by the Respondent and the Secretary 

are stipulated to be authentic. 

7. Each violation that is established is properly characterized as significant and substantial. 

8. The printout of the Assessed Violations History Report 

is a true and accurate history for the Small Fry mine and 

admissible in evidence in this matter. 

9. The operator demonstrated good faith by timely abatement 

of each of the alleged violations by permanently closing the 

mine. 

Law and Motion 

At the hearing, counsel for the Secretary moved to vacate 

Citation No. 2646365 which alleges a 104(a) violation of 30 

C.F.R. § 57.3020 and Order No. 2646495 which alleges a violation 

of 30 C.F.R. § 57.3022. The Secretary's counsel stated for the 

record that in analyzing the evidence in preparation for trial it 

was found that Citation No. 2646365 was duplicitous with Order No. 

2646363. There was no objection to the Secretary's motion. The 

motion to vacate Citation No. 2546365 was granted. 

The Secretary's motion to vacate Order No. 2646495 was also 

based on the fact that on review and analysis of the evidence in 

preparing for trial it was found that the citation was duplicitous and on the additional ground that there was insufficient 

evidence to establish the violation. There was no objection to 

the motion. The motion to vacate Order No. 2646495 was granted. 

The Regulation 

The three rema1n1ng violations, Order No. 2646363 and 

Citation Nos. 2646366 and 2646496 each allege a violation of 30 

C.F.R. S 57.3022 which provides as follows: 

325 
§ 57.3022 Examination of ground conditions and ground 

control practices 

Miners shall examine and test the back, face, and rib of 

their working places at the beginning of each shift and 

frequently thereafter. Supervisors shall examine the 

ground conditions during daily visits to insure that proper 

testing and ground control practices are being followed. 

Loose ground shall be taken down or adequately supported 

before any other work is done. Ground conditions along 

haulageways and travelways shall be examined periodically 

and scaled or supported as necessary. 

Admissions 

At .the hearing respondent admitted on the record that it had 

violated the provisions of the above quoted 30 C.F.R. § 57.3022 

as alleged in Order No. 2646363 and Citation Nos. 2646496 and 

2646366. Thus, respondent admitted that the roof of the mine was 

hot properly examined and that loose roof was not removed or 

adequately supported. Respondent also stipulated that each of 

the admitted violations was properly characterized significant 

and substantial and that the gravity of each of the admitted 

violations was serious, leaving in issue, however, the 

appropriate penalties, including the negligence of the operator 

and the effect of the proposed penalties on the operator's 

ability to continue in business. 

The Violations 

The three remaining violations, discussed below, were cited 

by MSHA following the inspection of the Small Fry mine on 

November 6th, the day after the fatal fall of ground accident. 

Order No. 2646363 

This citation was issued for a violation of 30 C.F.R. 

§ 57.3022 because loose ground in the 1600 South heading had 

not been taken down or supported. The citation states that on 

November 6, 1986 at 2:00 p.m. a fatal ground fall accident 

occurred in the 1600 South heading. A slab approximately 27 feet 

long by 15 feet wide and 1 to 2 feet thick fell. Reportedly the 

victim was drilling the second round in this heading on this 

shift and had two holes to drill when the slab fell. Ground 

support was not used in this area where the accident occurred. 

The Secretary at the hearing moved to amend its proposed 

penalty for the violation so as to increase the amount of the 

proposed penalty from $2,000 to $8,000.00. over the objection of 

respondent, the motion was granted. Counsel for petitioner 

stated for the record that the penalty for this violation should 

326 
be increased since it was the violation alleged in this citation 

that contributed to the fatal accident rather than the violation 

alleged in Citation No. 2646365 which was vacated. 

Citation No. 2646496 

This citation alleges a section 104(a) violation of 30 C.F.R. 

§ 57.3022 because the supervisor did not make a daily examination 

of the ground conditions in the area where the pillars were being 

extracted. The Secretary's proposed a $2,000 penalty for this 

violation. 

Citation No. 2656366 

This is a 104(a) citation that alleges a failure to remove 

loose roof in another area of the mine. The Secretary was 

permitted to amend the amount of the proposed penalty from $1,000 

to $500.00. 

Penalty 

The only remaining issue is the appropriate penalty for each 

of the admitted violations. With respect to this issue the 

parties presented oral and documentary evidence primarily on the 

degree of the operator's negligence and the effect of the penalty 

on the operator's ability to continue in business. The stipulations of the parties with respect to the other four penalty 

criteria set forth in section llOCi) of the Act are accepted as 

established fact. 

Both parties agree that the operator was negligent but 

differ as to the degree of negligence. The respondent's position 

with respect to these three citations is that the degree of 

negligence was low or at most moderate rather than high, as urged 

by the Secretary of Labor. Both parties agreed at the hearing to 

rely upon the depositions that had been taken in this action and 

to make a post-hearing submission setting out those areas of the 

depositions where testimony was given which relate to the 

negligence issue, and upon which that party relies. 

Respondent in support of its position that the degree of 

negligence is low or moderate rather than high submitted as its 

exhibits excerpts from the following depositions: CA) MSHA 

inspector Larry J. Day who inspected the Small Fry mine the day 

after the fatal ground fall accident (B) deposition of Robert 

Shumway one of the owners of the mine, CC) deposition of MSHA 

inspector Ronald L. Beeson who inspected the Small Fry mine the 

day after the ground fall accident and (D) deposition of Jerry 

Cowan one of the supervisors at the mine. 

327 
The sworn testimony in the depositions indicated that the 

miners did examine and test the roof, face, and ribs of their 

working places at the beginning of each shift and frequently 

thereafter; that supervisors examined the ground conditions 

during daily visits to ensure that proper testing and ground 

control practices were being followed; and that loose ground was 

taken down prior to any of the work being done. There was 

testimony that the miners had barred down the area where the 

accident occurred immediately prior to the time the accident 

occurred. 

It is respondent's position that the degree of negligence 

should be moderate, or low, as opposed to high as urged by the 

Secretary of Labor, for the reason that the ground control 

practices which were employed by respondent in this mine, to 

protect against an unintended roof fall, substantially met with 

the requirements of the standard, and were all that could be 

expected given the circumstances prevailing in this mine, and the 

mine operator's experience in this mine. 

The excerpts from the depositions received into evidence 

indicates that this operator sounded and barred down the roof 

prior to the time of the accident and that this was standard 

operating procedure and practice; that this operator had no 

indication that there was bad roof and no indication that an unintended roof fall would occur. The depositions indicate that 

the reason for the unintended roof fall in this mine was because 

of a mud seam above the slab that fell which neither the 

operator, nor any of the operator's employees, could have 

detected by visual means or other means at their disposal. 

Petitioner contends that the bad back or roof, in this mine, was 

not known to this operator and could not have been known under 

the circumstances. 

The Secretary's assessment of negligence as stated in her 

post-hearing submission is primarily based upon the following 

facts. During an earlier inspection, nine months before the 

November 6, 1986 accident, the same supervisory personnel, Mr. 

Cowan and Mr. Beck, had been told by MSHA Inspector Benson that 

he found roof support timber that had fallen and loose roof that 

had developed in the main haulage and in some drifts. As a 

result of this earlier inspection Benson issued roof control 

citations and warned Cowan and others that they needed to take 

better care of the roof. He warned that if they did not start 

barring down someone would be fatally injured. 

On review of all the evidence on the issue of negligence I 

find that the violations affirmed resulted from the operator's 

failure to exercise reasonable care which constitutes ordinary or 

moderate negligence. 

328 
.The only evidence presented on the issue of the effect of 

the proposed $10,500.00 penalties on petitioner's ability to 

continue in business was the unrebutted testimony of Gary Shumway 

at the November 16, 1988 hearing. Mr. Shumway testified that he 

was president of Western Key and has been employed by both 

Western Key and W.K. Enterprises for approximately four or five 

years. The witnesses stated that both organizations were 

established for the convenience of the same owners, the Shumway 

family. He testified that the proposed high penalties would 

seriously jeopardize the ability of both organizations to 

continue in business as a uranium mining company. 

The Solicitor, on the other hand, understandably presented 

no evidence on the issue of the effect of the proposed penalty on 

petitioner's ability to continue in business but points out that 

the proposed $10,500.00 penalty represents less than 3 percent of 

respondent's gross income and slightly more than 6 percent of the 

outstanding operating loan. Petitioner concedes however, that 

uranium operators have suffered declines which adversely affect 

their income. 

CONCLUSION 

Having considered the stipulations and the evidence 

presented in this case I find that based upon the six criteria 

set forth in section llO(i) of the Act that the appropriate 

penalty for each of the admitted violations is as follows: 

Citation No. 2646363 involving a violation of 30 C.F.R. 

§ 57.3022, $3,500.00. 

Citation No. 2646366 involving a violation of 30 C.F.R. 

§ 57.3022 $500.00. 

Citation No. 2646496 involving a violation of 30 C.F.R. 

§ 57.3022 in another part of the mine $1,000.00. 

I believe the amount of these penalties should be sufficient 

to deter future violations of mandatory safety standards while 

not unduly hampering the ability of this small operator to remain 

in business. 

ORDER 

Citation No. 2646363, 2646366 and 2646496 are affirmed and 

Citation Nos. 2646365 and 2646495 are vacated. Western Key 

Enterprise is directed to pay a civil penalty of $5,000.00 within 

30 days of the date of this decision. 

a~~~ Augu F. Cetti 

Admi istrative Law Judge 

329 
Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail> 

Kent w. Winterholler, Esq., Parsons, Behle & Latimer, 185 South 

State Street, Salt Lake City, UT 84147 (Certified Mail) 

/bls 

330 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 6 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

METTIKI COAL CORPORATION, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 88-13 

A. C. No. 18-00621-03615 

Mettiki Mine 

Appearances: Mark D. Swartz, Esq., Office of the Solicitor, 

u. s. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Susan E. Chetlin, Esq., Crowell & Moring, 

Washington, DC, for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

On April 6, 1988, the Secretary (Petitioner) filed a petition 

for Assessment of Civil Penalty for alleged violations by the 

Respondent of 30 C.F.R § 75.200, 30 C.F.R. § 75.400, 30 C.F.R. 

§ 77.205Cb), and 30 C.F.R. § 77.202. Respondent filed its Answer 

on May 5, 1988. Subsequent to a Prehearing Order issued May 17, 

1988, requiring the Parties to confer for the purposes of discussing settlement, exchange exhibits which may be endorsed at a 

hearing, and lists of witnesses who may testify, the Parties 

engaged in prehearing discovery. 

Pursuant to notice, the case was scheduled and heard in 

Pittsburgh, Pennsylvania, on November 15 - 16, 1988. Phillip 

Martin Wilt, Steven Polee, Stanley A. Martin, Barry Lane Ryan, 

Thomas Andrew Reed, and Horace Joseph Theriot testified for 

Petitioner. Timothy Clay Rush, Joseph Eugene Peck, Carl Randall 

Johnson, Alan B. Smith, William Allen Hartman, Horace Joseph 

Theriot, and Thomas Andrew Reed testified for Respondent. At the 

hearing Petitioner indicated that Order No. 2943340 issued on 

November 9, 1987 was vacated on November 2, 1988, and that 

Petitioner has withdrawn its petition for assessment of civil 

penalty with regard to the violation alleged in Order No. 2943340. 

331 
Proposed Findings of Fact, Conclusions of Law, and Briefs 

were filed by Petitioner and Respondent on January 25, 1989 • 

Reply Briefs were filed by Respondent and Petitioner on February 3 

and February 6, 1989, respectively. 

Both Parties, on January 25, 1989, filed Motions to Correct 

the hearing Transcript. The Respondent's Motion incorporates all 

the corrections noted by Petitioner in its Motion, and includes 

additional corrections. Respondent indicated that Petitioner 

does not object to Respondent's Motion. Accordingly, these 

Motions are granted. 

Stipulations 

The following stipulations were submitted by the Parties at 

the hearing: 

1. The Respondent, Mettiki Coal Corporation, has owned and 

operated the Mettiki Mine at all times relevant to these proceedings. 

2. The Mettiki Mine is subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction over these 

proceedings. 

4. The subject orders were properly served by a duly authorized representative of the Secretary of Labor upon authorized 

agents of the Respondent at the dates, times, and places stated 

in the orders. 

5. The assessment of civil penalties in these proceedings 

will not affect Respondent's ability to continue in business. 

6. The appropriateness of the penalty, if any, to the size 

of the coal operator's business should be based on .the following 

production tonnage information: 

a. That production tonnage of 2,525,216 at the Mettiki 

Mine in 1986, and 

b. Production tonnage of 9,225,921 at all of 

Respondent's mines in 1986. 

7. Mettiki Mine's history of previous violations with 

respect to the orders in this case is as follows: 

With respect to Orders Nos. 2944821 and 2944822, which 

were issued on November 16, 1987, there is a history of 441 

assessed violations in the 24 month period from November 16, 1985 

332 
to November 15, 1987, and then with respect to Order No. 2944834, 

which was issued on December 8, 1987, there is a history of 450 

assessed violations in the 24 month period from December 8, 1985 

to December 7, 1987. 

8. Respondent has demonstrated good faith in abating the 

violations alleged in Orders Nos. 2944821, 2944822, and 2944834. 

9. Mettiki Mine was issued Order No. 2701558 on May 30, 

1986. There was no intervening· clean inspection from May 30, 

1986 through December 8, 1987. Therefore, the Mettiki Mine was 

on a section 104(d)(2)· cycle or chain at all times relevant to 

these proceedings. 

10. On December 8, 1987, the Mettiki Mine was in the 

15 working day spot inspection program for methane as specified 

in section 103Ci) of the Act. 

11. In terms of specific dates, November 16, 1987, was a 

Monday; December 8, 1987, was a Tuesday. 

12. The Parties stipulated to the authenticity and admissibility of Order Nos. 2944821, 2944822, and 2944834. 

Order No. 2944834 

Order No. 2944834 issued on December 8, 1987, alleges a 

violation of 30 C.F.R. § 75.400 in that: 

Combustible materials, loose coal, some very 

fine and dry is accumulated under, and around the 

drive, and take-up rollers to the B-mains No. 3 conveyor belt, the drive roller had been permitted to turn 

in the materials, also there is loose coal deposited on 

the mine floor along and under the bottom belt on the 

left side beginning at the drive rollers and extending 

inby to the tail rollers, a distance of approximately 

1,000. The bottom belt and rollers had been permitted 

to turn in the materials in several locations. Also 

there was fine dry coal accumulated on the two 

200 PLO HP energized electrical motors to the conveyor 

drives. Alan Smith, Company Safety Director, is the 

responsible person. 

Findings of Fact and Discussion 

I. 

Phillip F. Martin Wilt, a MSHA Coal Inspector, testified, in 

essence, that when he inspected Respondent's Mettiki Mine on 

December 8, 1987, at approximately 8:20 a.m., he observed damp 

333 
coal along the belt line for approximately 1000 continuous feet. 

He indicated that he also observed loose dry fine crushed coal at 

an estimated depth of 2 to 6 inches in the area of the take up 

rollers, and around the drive. Wilt was accompanied by Barry 

Lane Ryan, a MSHA Field Office Supervisor, who corroborated 

Wilt's testimony with regard to the depth of the coal dust of 

approximately 2 to 6 inches at the base of the motors. In contrast, Joseph Eugene Peck, Respondent's Shift Supervisor, 

indicated that there was "some small accumulations" of coal by 

the motor, which he indicated was maybe a couple of inches 

(Tr. 209). He also indicated- that .. in some places the accumulation was to a depth of a few inches, and there were possibly 3 to 

4 inches under the rollers. He described the material in the 

belt areas as containing rocks and large material. Alan B. 

Smith, Respondent's Safety Director, indicated that on December 8, 

1987, there was coal accumulation on the motors, drive rollers, and 

under the take up unit. 

Based upon the above testimony, I conclude that when observed 

by Wilt, on the morning of December 8, 1987, there was indeed an 

accumulation of coal dust and loose coal which had not been cleaned 

up in the area of the No. 3 belt, which is an "active workings." 

As such, I conclude that it has been established that Respondent 

herein violated 30 C.F.R. § 75.400. 

II. 

In essence, according to Wilt, the coal that had accumulated 

in the belt area was damp i.e., containing moisture, but not 

saturated. The accumulation in the area of the drive and the 

take-up rollers was described as having a fine texture and being 

loose and dry. Wilt's testimony in this regard was essentially 

corroborated by Ryan, who also indicated that he observed coal 

dust in the air as the consequence of persons kicking it up while 

walking. Both Wilt and Ryan indicated essentially that, based 

upon their experience, dry fine coal dust can be combustible. 

According to Wilt, the belt bottom had been turning in the 

material, and the belt rollers could cause friction rubbing 

against the coal dust possibly causing it to ignite. Wilt also 

indicated that there was an electrical current in the lighting 

system above the belt starter box, and that a possible short in a 

motor or electrical system could cause an ignition. He indicated 

that if the coal would ignite there would be a fire and that the 

resulting smoke could cause injuries. It was also Ryan's uncontradicted testimony that the mine in question liberates more than 

2 million cubic feet of methane in a 24 hour period. 

Joseph Eugene Peck, Respondent's Shift Supervisor, testified 

that he touched the material along the belts as he gathered some 

of the rocks by hand. He indicated that some of the material was 

probably wet enough so that "possibly" water could have been 

squeezed out of it (Tr. 215). He said some of the material was 

334 
damp i.e., not absolutely wet but not dry. Carl Randall Johnson, 

Respondent's Section Foreman, indicated, in essence, that in the 

take up area that he cleaned, the material that he shoveled was 

wet and that it stuck to the shovel. He also described the 

material under the rollers as being wet and that it soaked into 

the clothing although he did not touch it. Alan B. Smith, 

Respondent's Safety Director, indicated that he saw the Inspector 

put his stick in some of the coal that had accumulated, and there 

was wetness on it. Essentially he described the area in question 

as very damp to wet, but indicated that the drive area was drier 

than the balance of the area; Based on the above, I find the 

testimony of Wilt and Ryan to be uncontradicted in that in the 

area of the drive and take-up rollers, the accumulated coal dust 

was dry. I accept the description of the material as contained 

in the testimony of Wilt and Ryan inasmuch as they both touched 

the material at these areas. Although the material in the area 

of the belt was clearly damp, and Johnson and Peck described some 

of the material as wet, I accept the testimony of Wilt and Ryan 

that the material was not wet or saturated, inasmuch as both 

testified that they actually touched the material. Furthermore, 

I find persuasive Ryan's testimony, as it was not contradicted, 

that in order for the water content of coal dust to be a barrier 

to an explosion, the coal dust must have the "consistency of 

catsup" (Tr. 126). He specifically indicated that none of the 

coal along the left side of the belt had this consistency, and 

none of Respondent's witnesses adduced testimony to establish 

that any of the material in question had such a consistency. 

Accordingly, I conclude that on the date in question there 

had been an accumulation of dry coal dust. Based on the uncontradicted testimony of Wilt and Ryan, I conclude that dry fine coal 

dust can be combustible. Smith indicated essentially that the 

hazard of a fire would be somewhat negated by the facts that the 

cables in proximity to the accumulated coal dust were insulated 

and grounded, circuit breakers were in operation, the motors were 

grounded, a fire suppresser system was on the belt line, and the 

belting was MSHA-approved fire resistant. Respondent also cites 

the lack of evidence of methane at the time, and the fact that 

the belts were not running at the time of the inspection. However, no evidence was adduced which contradicted Wilt's statement 

that the belt bottom had been turning in the accumulated material, 

and the belt roller could cause friction which could serve as an 

ignition source for the accumulated dry coal dust.~/ I also note 

that although Smith 

lj On redirect examination Johnson estimated that there were 3 to 

4 feet between the rollers and the accumulation of coal. However, 

I did not place much weight in this testimony as Johnson had previously, on cross-examination, admitted that he did not clean the 

rollers, and did not see the coal around the drive rollers (Tr. 

2 30) • 

335 
indicated he had seen "numerous" methane spot inspections at the 

A & B Portals, in which methane was not detected, none of 

Respondent's witnesses contradicted Ryan's statement with regard 

to fact that the mine in question liberates 2 million cubic feet 

of methane over a 24 hour period. Also, there was no contradiction of the testimony of Ryan and Wilt that should a fire occur, 

it would result in serious injuries due to the presence of smoke. 

Employees exposed to this hazard would be those conducting 

examinations in the area and those assigned to clean the area. 

Taking these factors into account, I conclude that the violation 

herein contributed to the hazard of an explosion or fire, with a 

reasonable likelihood of this hazard resulting in injuries of a 

reasonably serious nature. As such, the violation herein was 

significant and substantial.2/ (Mathies Coal Co., 6 FMSHRC 1, 3-4 

(January 1984)). I do not fTnd Mettiki Coal Corp., 8 FMSHRC 1768, 

(November 1986), cited by Respondent in its Brief, to be relevant 

to the case at bar. In Mettiki, supra, Judge Melick stated that he 

could not find the violation therein to be significant and substantial in light of the inspectors admission that "there was little 

likelihood of an explosion." (8 FMSHRC 1768, supra at 1770). In 

contrast, in the case at bar, Wilt opined that the fine texture of 

the coal around the drive and take up rollers could have been 

ignited by friction. 

III. 

It is Petitioner's position that the violation herein resulted 

from Respondent's unwarrantable failure. In this connection, Wilt 

testified, in essence, that the accumulation was easily observed. 

Wilt's testimony in this regard was corroborated by Ryan, who 

termed the condition "very obvious," (Tr. 127). Further, Wilt 

testified that he felt the accQmulation around the motors and it 

felt warm to the touch, and was "baked like" CTr. 43). Accordingly, he concluded that the accumulation had been in existence 

"for a period of time" (Tr. 42), to permit a drying out process. 

Smith, in essence, opined that it would take 45 minutes to an hour 

to dry coal out on the motors. I do not place much weight on 

Smith's opinion in this regard, as although he had touched the 

coal, he did not describe its dryness. In contrast, Wilt handled 

the coal and described how it felt (Tr. 43). 

2/In this connection I note that Smith, Respondent's Safety 

Director, agreed that the violation herein was significant and 

substantial. 

336 
According to Polee, Rush, and Smith, due to the mining 

conditions around the date in question, water from the coal seam 

being mined frequently ran back along the belt knocking coal off 

the belt. According to Peck, the violative condition looked 

recent, and due to water from the longwall, accumulations can 

occur in a matter of minutes. I give more weight to the testimony of Wilt, as his testimony was not contradicted, with regard 

to the conditions specifically at the drive and take up rollers. 

In addition, I find his description credible, inasmuch as he 

actually had touched the material. Also, his testimony,that the 

observed condition was obvious, as corroborated by Ryan, has not 

been contradicted. Also, Smith, while indicating that the accumulation on the belt line could have occurred in 5 or 10 minutes, 

opined that the coal in the belt area was there for several hours, 

and on the motors for 45 minutes to an hour. Also, Government 

Exhibit 2, EXAMINATION OF BELT CONVEYORS, indicates that on all 

three shifts on the day prior to the date of the inspection, it was 

reported that on the belt in question the head and take up "needs 

cleaned and dusted." (Sic.) In this connection, I find purely 

speculative testimony by Polee and Stanley A. Martin, Respondent's 

Fire Boss, that, in essence, the reported conditions could have 

been cleaned up and then reoccurred. I do not find support in the 

record for Respondent's position, as articulated in its Post 

Hearing Brief, that the cited condition was extraordinary and 

occurred after the preshift and last regularly scheduled cleanup. 

None of Respondent's witnesses presented any testimony, based on 

personal observations, as to when the accumulations in question 

actually occurred, and as to whether the conditions cited in the 

EXAMINATION OF BELT CONVEYORS on the day prior to the day in 

question, were actually cleaned up. Smith indicated that the 

conditions he observed on the day in question were "much more 

severe" than when recorded in the EXAMINATION OF BELT CONVEYORS 

(Tr. 251). I do not place much weight on this conclusion, as 

there is no evidence that Smith had personal knowledge of the 

nature of the conditions cited in the EXAMINATION OF BELT CONVEYORS. Similarly, Timothy Clay Rush, a miner engaged by 

Respondent who fire bosses the second portion of the shift, 

indicated, in essence, that the condition described in the Order 

in question is not consistent with what was reported in the preshift examination. I do not find this probative in establishing 

that the violative condition occurred subsequent to, and was in 

excess of, the condition found on preshift examinations, as his 

testimony does not establish he had personal knowledge or recollection of the conditions existing at the preshift examination 

(Tr. 173). Nor does it appear that he had any personal knowledge 

of the conditions existing at the time of the Order in question. 

Inasmuch as the evidence fails to establish that the cited 

condition occurred after one preshift examination and before 

another, as asserted by Respondent in .its Brief, I find that the 

337 
case at bar, is distinguished from Freeman Coal Mining co., 

3 IBMA 439 (1979), and Target Industries Inc., 10 FMSHRC 161 

(1988), cited by Respondent. In both Target Industries supra, 

and Freeman Coal Mining Co., supra, the violative conditions 

occurred after one preshift examination and before another. 

I thus find, based upon all the above, that the accumulation 

of coal dust herein was obvious, and in existence for a time 

period longer than that immediately prior to the inspection. I 

also find that the coal accumulation, in the area in question, 

was reported to management on three successive shifts immediately 

prior to the shift in question in which the violation was observed. 

I also find there was insufficient evidence to conclude that 

Respondent either cleaned up the reported accumulative coal or made 

any effort to do so. Based upon all the above, I conclude that the 

violation herein resulted from Respondent's aggravated conduct and 

thus constitutes an unwarrantable failure (See, Emery Mining Corp., 

9 FMSHRC 1197 (December 1987)). 

IV. 

The testimony of Smith and Respondent's other employees who 

testified, would appear to indicate that the accumulation of coal 

herein was not caused by Respondent's negligence, but rather 

inherent in the normal mining conditions, and operations on the 

date in question. However, based on the rationale set forth in 

III. above, infra, I conclude that the Respondent herein was 

negligent to a high degree in not clearing the obvious accumulation once it occurred. Taking into account the presence of dry 

fine coal dust, as testified to by Wilt and Ryan, in the area of 

the rollers and drive, along with the possibility of friction 

from the belt rollers, and the history of methane production in 

the mine as testified to by Ryan, I conclude that the ignition of 

the coal dust was likely, and consequently find the gravity of 

the violation herein to be moderately high. Taking these matters 

into account, as well as the r~naining factors in section llOCi> 

of the Act, as stipulated to by the Parties, I conclude that a 

civil penalty of $1000 is proper for the violation found herein. 

Order No. 2944821 

Order No. 2944821 alleges as follows: 

The cat-walk leading from the ground level to the 

top of the raw coal silo which is a distance of approxi1nately 500 feet in length is not being kept free of 

stumbling and slipping hazards, because with the 

exception of two isolated areas of distances of approximately 20 feet each, the entire length of the walkway 

338 
is obstructed with loose coal and rock averaging from 2 

to 6 inches deep and 20 to 24 inches wide. Jody 

Theriot, company, and miner representative is the 

responsible person. 

I. 

On November 16, 1987, at approximately 8:55 a.m., Wilt, in 

the presence of Horace Joseph Theriot, Respondent's Safety 

Coordinator, climbed up to a catwalk that ran approximately 

700 feet connecting a metal building to a coal silo and providing 

access to the top of the coal silo. He observed that, with the 

exception of two isolated areas of approximately 20 feet in 

length, the balance of the approximately 700 foot long by 24 inch 

wide catwalk was generally covered with loose coal and rocks. 

He described the catwalk as being totally obstructed, with the 

exception of the two isolated areas, and indicated that the depth 

of the material was measured to be an average of 2 to 6 inches. 

In essence, he testified that although he could have walked on 

the material without a rail, he used a rail as he considered the 

material on the catwalk to constitute a stumbling hazard as it 

would tend to turn one's feet when walking on it. 

Thomas Andrew Reed, an employee of Respondent, who has the 

responsibility for clearing the middle portion of the catwalk, 

testified, in essence, that when he was on the catwalk at approximately 1 to 2 a.m.·, on November 16, 1987, there were only some 

lumps on the catwalk, but not a lot of material. He also indicated that when he left his shift, there was no coal in the 

approximately 400 feet that he had cleaned. Theriot, who was 

with Wilt at the time of the inspection, indicated that he did 

not have any difficulty walking on the catwalk. Also, William 

Allen Hartman, an employee of Respondent, who was cleaning the 

catwalk at approximately 9:30 in the morning on November 16, 

indicated that he could walk on the material on the catwalk. 

Although there was a vertical ladder providing.access to the 

silo, there was no evidence contradicting Wilt's testimony that 

the catwalk in question does provide access to the top of the 

silo. According to Wilt's uncontradicted testimony, an electrical 

motor and a gear reduction unit are located in an enclosed area at 

the top of the silo. As such, the catwalk would be a means of an 

access to this area to service and repair such equipment. Also, it 

appears from Wilt's testimony that the belt line is parallel to the 

catwalk at the same level, and without any separation between them. 

Respondents's employees, who clean and grease the belt line would 

apparently have access to it by way of the catwalk. Also, William 

Allen Hartman, who was responsible for cleaning the uppermost 

portion of the catwalk, would have to walk along the catwalk from 

the steps to reach his area of responsibility. Therefore, I find 

that the catwalk is a travel way or a means of access to areas 

339 
where persons are required to travel or work, and as such is within 

the purview of 30 C.F.R. § 77.205Cb). Although Reed indicated, in 

essence, that there was not a lot of coal on the catwalk when he 

observed it at 1 or 2 a.m., on November 16, I find that, essentially, Wilt's detailed description of the extent, depth, and 

description of the material that had accumulated on the catwalk, 

was not contradicted. Although essentially Reed, Theriot, and 

Hartman indicated that they did not have any difficulty walking on 

the material, I conclude, based upon Wilt's description of the 

material, its extent, and deptrr, along with evidence of the slope 

of the catwalk, as depicted in Exhibit R-2, that the accumulated 

coal and rocks constituted a stumbling hazard. As such, I conclude that Respondent herein did violate 30 C.F.R. § 77.205Cb). 

II. 

In essence, Wilt testified that it was his opinion that, 

taking into account the size and shape of the material that had 

accumulated on the catwalk, as well as its slope, and considering 

the difficulty that he himself experienced walking on the catwalk, 

it was highly likely that the accumulation could contribute to an 

injury to one person by causing that person to slip and fall, 

resulting in broken bones, sprains, or lacerations. In contrast, 

neither Theriot, who walked on the material along with Wilt, nor 

Reed, who walked on the material a few hours prior to Wilt, nor 

Hartman, who walked on the material shortly after Wilt, experienced 

any difficulty walking. Clearly the extensive presence of coal and 

rock accumulations on the sloped catwalk did present a hazard of 

stumbling and falling. However, I note that the catwalk had a 

rail, and Wilt who used the rail in traversing the catwalk did not 

specifically testify to the degree of hazard when using the rail. 

Hence, I conclude that it has not been established that the 

presence of the rail would not have minimized the likelihood of one 

stumbling or falling. As such, I conclude that, although it was 

certainly possible for one traversing the catwalk to have stumbled 

and fallen and suffered a reasonably serious injury, it has not 

been established that the hazard of falling and suffering a serious 

injury was reasonably likely to have occurred. (c.f. Mathies Coal 

Co., supra). As such, I conclude that the violation herein was not 

significant and substantial. (Mathies Coal Co., supra). 

III. 

According to Wilt, the extensive amount of material present 

on the catwalk indicated to him that it had been permitted to 

continue for "some time" (Tr. 337). He also indicated that he 

observed two areas on the catwalk that had been cleaned,- four 

shovels, and foot prints in the material on the catwalk above him 

towards the silo. He thus concluded that Respondent knew of the 

condition. 

340 
Steven·Polce, Respondent's employee who has supervisory 

responsibilities over the catwalk, indicated essentially that 

three men are assigned to clean a portion of the catwalk, and 

that he never told them to clean another section aside from their 

own. William Allen Hartman, who was assigned to clean the upper 

portion of the catwalk, indicated that when the day shift ended 

on Friday, November 13, 1987, he walked the catwalk, and it was 

clean top to bottom. Thomas Andrew Reed, Respondent's employee 

who is responsible for the middle portion of the catwalk, indicated that on the last shift on Friday, November 13, when he 

left, his area was "fairly clean" (Tr. 384). (When called as a 

witness for Respondent, Reed described his areas as "clean" at 

the end of that shift (Tr. 428)). He also indicated that on the 

shift from 11 p.m., November 15 to 7 a.m., November 16, he spent 

3 1/2 to 4 hours cleaning, but only cleaned his area and when he 

left there was no coal in his area and the area was clean. He 

said he told Hartman, who had the responsibility of cleaning on 

the next shift, that there was a little bit of binder and coal on 

the catwalk. Reed indicated that, in general, Respondent does 

not have any policy requiring the catwalk cleaners to call for 

help to clean up the catwalk, and they are not required to inform 

management of any coal accumulation on the catwalk when they 

leave their shift. Reed also indicated that in October/November 

1987, the catwalk was covered with material completely 2 to 3 

times a week, and that material could accumulate in less than 

15 minutes after it was cleaned. (Hartman indicated, in essence, 

that an accumulation in these conditions could occur in 

5 minutes). 

I have taken into account Wilt's opinion with regard to the 

existence of the material for a period of time, but conclude, 

based on the uncontradicted testimony of Hartman, that in 

actuality, as observed by him, there was no accumulation of coal 

on the catwalk at the end of the day shift on Friday, November 13. 

However, based on Reed's testimony, I conclude that at least as 

early as the 11 p.m. to 7 a.m shift November 15 to November 16, 

there was an accumulation of coal and rocks on the catwalk, and 

that this condition was known to Reed. Inasmuch as Respondent 

did not have any procedures requiring the belt cleaners to report 

to management when there was an accumulation of coal they could 

not clean up, and inasmuch as only one employee oer shift was 

assigned to clean only one third of the catwallc,j/ I conclude 

3/Hartman indicated that he did help clean other areas, although 

he did not have any such direct order. Although this action is 

commendable, it does not exonerate Respondent's conduct in 

assigning only one employee per shift to clean only one third of 

the catwalk. 

341 
that the existence of the coal accumulation observed by Wilt on 

the morning of November 16, resulted from Respondent's aggravated 

conduct. Thus, I conclude that the violation herein was the 

result of Respondent's unwarrantable failure (See, Emery Mining 

Corp., supra). 

IV. 

The extensive presence of coal and rocks to a depth of 

2 to 6 inches on the sloped catwalk clearly presented a stlli~bling 

hazard. However, due to the presence of a rail, I conclude that 

the gravity of the violation herein was only moderate. Inasmuch 

as Respondent did not provide for more than one employee per 

shift to clear more than one third of the catwalk, and inasmuch 

as Reed knew of the accumulation of coal in the night shift 

between November 15 and November 16, I conclude that the failure 

of Respondent to clean the accumulated coal on the catwalk constituted a high degree of negligence. Taking these factors into 

account, as well as the remaining statutory factors in section 

llO(i) of the Act, as stipulated to by the Parties, I conclude 

that a penalty of $500 is appropriate for the violation found 

herein. 

Order No. 2944822 

Order No. 2944822 reads as follows: 

Loose coal, including fine dry coal, and coal dust 

is accumulated between the top, and bottom moving conveyor belt leading from the mine portal to the top of 

the raw coal silo, these conditions exist the entire 

length of the conveyor which is approximately 500 feet 

in length. The accumulations are such as to permit 

numerous top rollers and belt to run in the materials, 

also due to the accumulations several to rollers are 

frozen and will not turn. Also when the conveyor 

reaches the ground level near the belt portal there is 

accumulation of coal from 2 to 5 feet in thickness, for 

a distance of 60 feet, the distance.was measured with a 

tape rule. Jody Theriot, Company, miner representative 

is the responsible person. 

I. 

At approximately 9:05 a.m., on November 16, 1987, Wilt 

observed coal and coal dust in the pan, which is a structure 

separating the top and bottom of the belt which runs alongside 

the catwalk. He described the material in and around the rollers 

as being fine, dry, and dusty. He said that several of the belt 

342 
rollers were turning in the material. He described the material 

that the belt had been running in as fine, dry, and dusty. In 

contrast, Reed was asked on cross-examination whether the coal 

was wet on the night shift of November 15 - 16, and he indicat~d 

that he touched it in the process of cleaning and indicated that 

it was wet. Hartman, who worked on cleaning up the belt on 

November 16, at approximately 10 to 10:30 a.m., described the 

coal on the pan line as "definitely wet," (Tr. 440). and said 

that he did not see coal dust or dry coal on the belt. Also, 

Theriot, who accompanied Wilt, ~ndicated that he did not see dust 

in the pan and did not recall dust being there. 

I place most weight on Wilt's testimony as to what he 

actually observed in the specific area of the rollers. Neither 

Reed nor Hartman, who described the material as being wet, nor 

Theriot contradicted the testimony of Wilt, as neither of them 

presented testimony specifically as to the area in and around the 

rollers. Also, although Hartman indicated that he did not see 

coal dust or dry coal on the belt, it is noted that he observed 

this area approximately an hour and a half after it was cited and 

after clean up had already begun. Thus, based upon Wilt's testimony, I conclude that on approximately 9:05 a.m. on November 16, 

there was coal dust around the rollers. I accept Wilt's testimony, as it was not contradicted, with regard to the description 

of the pan, and conclude that it was a structure within the 

purview of 30 C.F.R. § 77.202. 

However, in order for a violation of section 77.202, supra, to 

occur, the coal dust must exist "in dangerous amounts." In The 

Pittsburgh & Midway Coal Mining Co., 6 FMSHRC 1347 (May 1984~ 

aff'd 8 FMSHRC 4 (January 1986), Commission Judge Broderick 

interpreted the phrase "in dangerous amounts" as follows: 

"Whether an accumulation is dangerous depends upon the amount of 

the accumulation and the existence and location of sources of 

ignition. The greater the concentration, the more likely it is 

to be put into suspension and propogate (sic.) an explosion." 

(Pittsburgh v. Midway Coal Mining Co., supra, at 1349). I adopt 

this interpretation. 

At best, as argued by Petitioner in its Brief, the record 

contains Wilt's observations as to rollers turning in accumulated 

materials and rollers being frozen in place by accumulated 

materials. There is no evidence with regard to the specific 

amounts of the accumulation such as its color, depth, or measurement of the area it covered. Also the record is devoid of 

evidence with regard to the location and existence of sources of 

ignition. Thus I conclude that it has not been established that 

the coal dust present in the mine existed "in dangerous amounts." 

As such, it has not been established that a violation of 77.202, 

supra, occurred, and Order No. 2944822 must accordingly be 

dismissed. 

343 
ORDER 

It is O~DERED that ~espondent, within 30 days of this 

Decision, pay $1,500 as Civil Penalties for the violation found 

herein. It is further ORDERED that Order No. 2944821 be amended 

to reflect the fact that the violation therein is not significant 

and substantial. It is further ORDERED that Order No. 2944822 be 

DISMISSED. 

Distribution: 

Avram 

([_ 

Weisberger 

~ 

Administrative Law Judge 

Mark D. Swartz, Esq., Office of the Solicitor, u. s. Department 

of I.abor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia. PA 19104 (Certified Mail) 

Timothy M. Biddle, Esq., Susan Chetlin, Esq., Crowell & Moring, 

1001 Pennsylvania Avenue, NW, Washington, DC 20004-2505 

(Certified Mail) 

dcp 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

GARY SMITH, 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 10, 1989 

DISCRIMINATION PROCEEDING 

Complainant . . v. 

SOUTHERN HILLS MINING, 

Respondent 

. . Docket No. KENT 89-4-D 

BARB CD 88-55 

Mine No. 2 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On October 11, 1988, you filed with this Commission a complaint of discrimination under section 105Cc) of the Federal Mine 

Safety and Health Act of 1977. On December 23, 1988, a show 

cause order was issued directing you to provide information 

regarding your complaint or show good reason for your failure to 

do so. The show cause was mailed to you certified mail, return 

receipt requested and the file contains the receipt card 

indicating you received the show cause order. You have however, 

not responded and complied with the show cause order. 

Accordingly,, this case is DISMISSED. 

- Mer in 

Chief Administrative 

Distribution: 

Mr. Gary Wayne Smith, P. o. Box 171, Hazard, KY 41701 

(Certified Mail) 

Southern Hills Mining Company, Inc., P. O. Box 730, Hindman, KY 

41822 (Certified Mail) 

/gl 

345 

, 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 10 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GATEWAY COAL COMPANY, 

Respondent 

. . 

. . 

. . 

. . --

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 88-268 

A.C. No. 36-00906-03695 

Gateway Mine 

DECISION 

Appearances: Nanci A. Hoover, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania for the Petitioner, Secretary of 

Labor (Secretary); 

David Saunders, Safety Director, Gateway Coal Co., 

Prosperity, Pennsylvania, for Respondent (Gateway). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks a civil penalty for an alleged violation 

of 30 C.F.R. § 75.200 charged in an order issued under section 

104(d)(2) of the Act on May 3, 1988. Gateway concedes that the 

violation occurred and does not contest the finding that it was 

significant and substantial. It does contest the finding that it 

was caused by Gateway's unwarrantable failure, and the amount of 

the proposed penalty. 

Pursuant to notice, the case was heard on January 10, 1989, 

in Washington, Pennsylvania. Glenn Stricklin and Russell Knight 

testified on behalf of the Secretary. William Wilson, 

Stephen Strange and David Saunders testified on behalf of 

Gateway. 

FINDINGS OF FACT 

1. Gateway is the owner and operator of an underground coal 

mine in Greene County, Pennsylvania, known as the Gateway Mine. 

The mine produces coal which enters interstate commerce and its 

operation affects interstate commerce. 

346 
2. On May 3, 1988, Federal coal mine inspector 

Glenn Stricklin issued a section 104(d)(2) withdrawal order 

charging that Gateway failed to comply with its approved roof 

control plan in the No. 2 entry at the No. 42 crosscut, 9 butt 

section. This was one crosscut outby the face. The order states 

that the diagonal distance of a four way intersection measured 66 

feet and that a clay vein was present. Supplemental supports 

were not installed. Respondent concedes these facts. The order 

was issued at 10:00 a.m. 

3. The approved roof control plan for the subject mine 

provides that where the diagonal distance in an intersection 

exceeds 60 total feet, supplemental supports in the form of posts 

or cribs must be set. 

4. As he approached the intersection, Inspector Stricklin 

saw an obvious clay vein which extended into the interesection. 

Slate was flaking from the roof at the clay vein. The inspector 

tested the roof by the sound and vibration method using his solid 

wooden walking stick. He found the roof very drummy. 

Russell Knight, the UMWA safety committeeman who accompanied the 

inspector, confirmed that the roof sounded drummy. A drummy or 

hollow sound is a sign of a bad roof condition. Respondent 

argues that because the inspector did not have a metal cap on his 

testing rod, the test was invalid. I reject this contention. 

Inspector Stricklin has been a coal mine inspector for 19 years, 

and worked 20 years in the mines prior to becoming an inspector. 

Mr. Knight has worked in the subject mine for over 12 years and 

has been a safety committeeman for 7 years. They certainly are 

able to recognize a dangerous roof condition. The record does 

not indicate that Respondent's representatives made any test of 

the roof. I find that the area of the roof near the clay vein 

was drummy and dangerous. 

5. The clay vein was evident. Respondent was aware of it 

and had installed extra roof bolts and larger plates in the 

intersection involved in this proceeding. The excessive diagonal 

distance in the intersection was evident, and Respondent should 

have been aware of it. Respondent has frequently been cited for 

having excessive diagonal distance in intersections. There is no 

evidence that Respondent was aware of the slate flaking from the 

roof, but it should have been aware of it by visual observation 

of the area. 

6. At the time of the inspection, the area was not being 

mined. Respondent was advancing the beltline. However, the area 

was a well travelled area. It is required to be inspected prior 

to each shift, and the section foreman normally passes the area 

frequently during each shift. 

347 
7. Re.spondent had experienced two unintentional roof falls 

during the development of this area--both involving clay seams. 

8. Respondent abated the condition by setting four posts in 

the intersection, one next to the clay seam, and three on the 

opposite side. The condition was abated and the order terminated 

at 11:15 a.m. 

ISSUES 

1. Whether the violation of 30 C.F.R. § 75.220 was caused 

by Respondent's unwarrantable failure to comply with the safety 

standard? 

2. What is the appropriate penalty for the violation? 

CONCLUSIONS OF LAW 

JURISDICTION-VIOLATION 

Respondent is subject to the Mine Act in the operation of 

the subject mine. I have jurisdiction over the parties and 

subject matter of this proceeding. 

Respondent has conceded that the violation cited in the 

contested order occurred, and that it was significant and 

substantial. 

UNWARRANTABLE FAILURE 

The Commission has defined unwarrantable failure as 

"aggravated conduct, constituting more than ordinary negligence, 

by a mine operator in relation to a violation of the Act." Emery 

Mining Corporation, 9 FMSHRC 1997, 2004 (1987). The violation in 

Emery involved 4 roof bolts in a haulageway between crosscuts 

which had "popped" their bearing plates at least a week before 

the inspection. The Commission held that the failure of preshift 

or onshift examiners to detect and correct this condition was not 

such aggravated conduct in view of the extraordinary efforts by 

Emery to support the roof adequately. See also Quinland Coals, 

Inc., 10 F~ShRC 705 and The Helen Mining Company, 10 FMSHRC 1672 

(1988). 

In the instant case, Gateway was aware of the clay seam and 

the danger it created: additional roof bolts were installed. It 

was aware that two unintentional roof falls had occurred in the 

vicinity of other clay seams. It should have been aware of the 

fact that the intersection in question exceeded the size which 

under the roof control plan would require the setting of posts or 

cribs. It should ha,re been aware of the dcummy condition of the 

348 
roof in the vicinity of the clay seam. It should have been aware 

of the flaking of slate from the roof in the vicinity of the clay 

seam. The violation charged here was not, as in Emery, the 

failure to adequately suport the roof. It was the failure to 

comply with a specific roof control plan requirement: when the 

total diagonal distance of an intersection exceeds 60 feet, posts 

or cribs shall be set. Gateway's failure to comply with this 

requirement was, in my judgment, aggravated conduct, constituting 

more than ordinary negligence. Gateway should have been aware of 

the excessive distance in the intersection. This fact, coupled 

wi,th its awareness of the clay seam, the violations of the same 

roof control provision previously cited by MSHA, the previous 

roof falls, and the condition of the roof, made compliance with 

the requirement for setting posts imperative, even urgent. 

Failure to comply was aggravated conduct. 

PENALTY 

Gateway is a large mine producing in excess of one million 

tons of coal annually. It is the only mine operated by 

Respondent. Its history of prior violations is moderate. Its 

negligence with respect to the violation found is high. The 

violation was serious. Gateway exhibited good faith in promptly 

abating the violation. I conclude that $1000 is an appropriate 

penalty for the violation tonsid~ring the criteria in section 

llO(i) of the Act. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Order No. 3'093167 issued May 3, 1988, is AFFIRMED 

including its findings that the violation was significant and 

substantial and was caused by Respondent's unwarrantable failure 

to comply with the standard. 

2. Respondent shall within 30 days of the date of this 

order pay the sum of $1000 as a ciilil penalty for the violation 

found. 

/'7 , 

{~~';LZ-5 -~·-:J? vJl:--Zc:,/c 

James A. Broderick 

Administrative Law Judge 

349 
Distribution: 

Nanci A. Hoover, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

Mr. David Saunders, s,fety Director, Gateway Coal Co., Box 107, 

R.D. 2, Prosperity, PA 15329 (Certified Mail) 

slk 

350 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 14 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

vs. 

MOLTAN COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. SE 88-54-M 

A.C. No. 40-02968-05501 

Moltan Company Mine 

Appearances: G. Elaine Smith, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

Edward J. Lucas, Plant Superintendent, Moltan 

Plant, Middleton, Tennessee, for the Respqndent. 

Before: Judge Maurer 

The secretary of Labat, on behalf of the Mine Safety and 

Health Administration, (MSHA), charges the respondent with 

violating safety regulations promulgated under the Federal Mine 

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

hereinafter the "Act". · 

Pursuant to notice, a hearing on the merits was held on 

November 18, 1988, at Jackson, Tennessee. 

The parties stipulated that the Moltan Company was subject 

to regulations promulgated under the authority of the Act and 

that this Commission and this Administrative Law Judge have 

jurisdiction to hear a~d decide this case. They further 

stipulated that payment of the penalties assessed in this 

proceeding would not adversely affect the operator's ability to 

continue in business. 

351 
Citation No. 3252463 

This non-S&S citation charges the respondent with a 

violation of the mandatory standard found at 30 C.F.R. 

§ 56.14001 1/ for the following alleged condition: 

The head pulley pinch points are not guarded on the 

inclined belt conveyor that feeds the shuttle belt 

conveyor in the clay shed. The exposed pinch point is 

approximately one foot to the right of and approximately one foot to the rear of the conveyor's drive 

motor electrical disconnect cabinet. The pinch point 

is approximately forty-eight inches above the plane of 

the walkway alongside the conveyor. 

MSHA Inspector Don B. Craig issued this citation on March 9, 

1988, when he observed the above-referenced pinch point 

unguarded, even though he deemed it unlikely that any employee 

would get into this pinch point. He clarified this somewhat by 

stating that it may be contacted by a person, but it's just 

unlikely that it would be. 

The plant superintendent, Mr. Lucas, testified that this 

inclined belt is only operated in daylight hours arid in fair 

weather. This is significant in that because of the fair weather 

only operation and the way the transfer point is d~signed, there 

is no clay buildup on the belt which can.be deposiied on the head 

pulley which would in turn require cleaning of the head puiley. 

Mr. Lucas further testified that in an effort to se~ what 

position a man would have to get ihto in order to reach that 

pinch point, he found that a man would have to either reach in 

and back behind his back with his right arm, or use his left hand 

and reach in through and around a corner through the structure to 

get to the pinch point itself---but he would have to squat down 

to do it. 

On cross-examination, Mr. Lucas reiterated that in the seven 

years he has- been at the plant, this head pulley has never 

required cleaning. Further, any maintenance that would be 

required on the head pulley would require that the unit be shut 

down and locked out. He flatly stated that there would be no 

maintenance that you could perform on the head pulley with it in 

operation. 

!/ 30 C.F.R. § 56.14001 provides as follows: 

"Gears; sprockets; chains; drive, head, tail, and takeuo 

pulleys; flywheels; cou~lings; 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." 

352 
In suinmary, Mr. Lucas acknowledges that this pinch point was 

not guarded with a "guard", but was guarded nonetheless by its 

location. He contends that there was no violation due to the 

fact that it could not reasonably be contacted by accident or 

inadvertence. I agree and this citation will be vacated. 

Citation No. 3252464 

This non-S&S citation charges the respondent with a violation 

of the mandatory standard found it 30 C.F.R. § 56.20003(a) ~/for 

the following alleged condition: 

The walkway alongside the shuttle conveyor in the clay 

shed building is cluttered with channel iron, angle 

iron, wood boards, bars, grease containers and clay 

spillage. This condition is a slip and fall hazard to 

employees using the walkway. 

Inspector Craig issued this citation on March 9, 1988, when 

he observed clutter in the walkway alongside the shuttle conveyor 

in the clay shed. This clutter consisted of angle iron, wood, 

grease containers, etc., and was in the opinion of the inspector 

a slip and fall hazard. This walkway was the only access to that 

belt and was the only walkway alongside the belt conveyor. 

Mr. Lucas t.estif ied that the clutter was the result of 

maintenance pers~nnel who had been working in the area failing to 

clean-up after recent repairs. He admits, however, that the 

materials were on the walkway. He disagrees that they 

constituted a tripping hazard or a violation. 

I don't have any trouble finding that a "walkway" is 

synonomous with the "passageway" cited in the pertinent section 

of the regulations and that the condition observed by the 

inspector on this occasion is a violation of that regulation. 

Therefore, Citation No. 3252464 will be affirmed and a civil 

penalty of $20 assessed, as proposed by the Secretary. 

Citation No. 3252465 

This non-S&S citation charges the respondent with a 

violation of the mandatory standard found at 30 C.F.R. 

§ 56.12030 ll for the following alleged condition: 

2/ 30 C.F.R. § 56.20003(a) provides·as follows: 

- At all mining operations -- (a) Workplaces, passageways, 

storerooms, and service rooms shall be kept clean and orderly. 

3/ 30 C.F.R. § 56.12030 provides as follows: 

- When a potentially dangerous condition is found it shall be 

corrected before equipment or wiring is energized. 

353 
The 480 volt, 3 phase Cutler-Hammer starter cabinet for 

the primary clay shredder has a defective operating 

handle safety mechanism. The defective mechanism 

allows the cabinet doors to be opened while the starter 

is energized and the operating handle is in the on 

position. Reportedly this cabinet is never entered 

by anyone except an electrician. 

Inspector Craig issued this citation on March 9, 1988, when 

he found that the safety handle on this cabinet did not trip the 

power when the cabinet door was opened, as it was designed to do. 

The regulation requires that when a potentially dangerous 

condition is found, it shall be corrected before the equipment is 

energized. In the opinion of the inspector, the inoperative 

safety device had the potential to make the cabinet dangerous and 

that is why he wrote the citation. 

The inspector spoke to both the superintendent and the plant 

engineer to satisfy himself that the cabinet was entered by 

electricians only, but what he specifically was citing here was 

the fact that the cabinet could be opened by anyone without it 

being de-energized. 

I find that this malfunctioning latch should have been found 

by the operator and repaired and the failure of the respondent to 

do so constitutes a violation of the cited regulation. Before 

the inspector left the property on March 11, the safety mechanism 

was repaired and tested and found to be functioning normally. 

This meant that the cabinet could not be opened unless the 

operating handle was placed in the off position, de-energizing 

the cabinet. Citation No. 3252465 will be affirmed and a civil 

penalty of $20 assessed, as proposed by the Secretary. 

Citation No. 3252468 

This non-S&S citation charges the respondent with a violation 

of the mandatory standard found at 30 C.F.R. § 56.4603Cb) !/ for 

the following alleged condition: 

!/ 30 C.F.R. § 56.4603Cb) provides as follows: 

"To prevent accidental release of gases from hoses and 

torches attached to oxygen and acetylene cylinders or to manifold 

syst~ns, cylinder or manifold syst~n valves shall be closed when 

* * * * * * * 

(b) The torch and hoses are left unattended." 

354 
The oxygen cylinder containing approximately 800 pounds 

pressure and the acetylene cylinder containing approximately 50 pounds pressure was found unattended in the 

clay shed building. The cylinder valves were open and 

the hoses were spread out across the floor where 

maintenance personnel had been performing repairs 

before going to lunch. 

Inspector Craig issued this citation on March 9, 1988, when 

he observed an oxygen cylinder and an acetylene cylinder with the 

pressure gauges, regulating gauges, valves and hoses hooked up to 

the cylinders with the cylinder valves in the open position and 

no one in attendance. The employees using this equipment had 

gone to lunch. 

The respondent attempts to defend here by arguing that the 

front end loader operator was in the general area and he was, in 

effect, "attending" the cylinders. The inspector didn't think 

too much of this defense and neither do I. Just because he was 

in the same building with the cylinders does not equate to being 

in "attendance". Those employees who had been working with those 

cylinders were not in the area and the inpsector did not observe 

any other employees in the immediate area that could conceivably 

be responsible for those cylinders. Accordingly, I find and 

conclude that the cited standard was indeed violated as alleged 

and Citation No. 3252468 will be affirmed. A civil penalty of 

$20 will also be assessed, as proposed by the Secretary. 

Citation No. 3252469 

This non-S&S citation charges the respondent with a 

violation of the mandatory standard found at 30 C.F.R. 

§ 56.11012 ~/ for the following alleged condition: 

Two sections of mid-rail are missing from the 

handrail on the number two mill scrubber fan platform. 

This condition could allow an employee to fall 

through the openings to the ground level which is 

approximately twenty feet below. The openings are 

approximately five feet long and approximately 

thirty-six inches high on each. 

5/ 30 C.F.R. § 56.11012 provides as follows: 

- "Openings above, below, or near travelways through which 

persons or materials may fall shall be protected by railings, 

barriers, or covers. Where it is impractical to install such 

protective devices, adequate warning signals shall be installed." 

355 
Inspector Craig issued this citation on March 9, 1988, when 

he found the midrails missing on the number 2 mill scrubber 

platform handrail. This left two opening~, each approximately 30 

inches high by 5 feet long on both sides of a corner post on this 

platform. In the opinion of the inspector, these openings were 

such that a person could have fallen through. The area is . depicted on Respondent's Exhibit Nos. 4 and 5, photographs of ·the 

No. 2 mill fan work platform as the respondent calls it. The 

openings described were caused by the removal of a midrail for 

maintenance. There was a top rail and a toeboard in place at the 

time the citation was written, but the inspector believed that 

the openings were still such that an employee could have fallen 

through to the ground level, approximately twenty feet below. 

The respondent contends that the area cited was not a 

travelway, but in fact, was a "work platform". I find this to be 

a matter of semantics; a distinction without a difference, and I 

conclude that the Secretary has met her burden of proof 

concerning this citation and violation. Accordingly, the 

citation will be affirmed and a civil penalty of $20 assessed, as 

proposed by the Secretary. 

Citation No. 3252470 

This non~S&S citation charges the respondent with a 

violation of the mandatory safety standard found at 30 C.F.R. 

§ 56.20003Ca) for the following alleged condition: 

The walkway at the number two mill scrubber 

platform is cluttered with angle iron, channel iron 

and grease containers. This condition is a trip 

and full hazard compounded by the fact that the 

ground level is approximately twenty feet below. 

Inspector Craig issued this citation on March 9, 1988, when 

he observed angle iron, channel iron and grease containers laying 

on the walkway in the same area cited above for the missing 

midrail. In fact, the inspector testified that this angle iron 

was the missing midrail. It was also a slip, trip and fall 

hazard. This walkway was, as stated previously, approximately 

twenty feet above a concrete floor area. A slip, trip and fall 

through that opening would mean that a person could fall twenty 

feet to a concrete floor. 

I find and conclude that the violation of the cited standard 

is established. Citation No. 3252470 will be affirmed and a 

civil penalty of $20 assessed, as proposed by the Secretary. 

356 
Citation Nos. 3252472 and 3252474 

These two non~S&S citations charge that the respondent 

violated the mandatory safety standard found at 30 C.F.R. 

§ 56.11012 at two different locations at its facility. The 

citations are for all practical purposes identical except for 

their location. Citation No. 3252472 refers to the Number 2 mill 

building, while Citation No. 3252474 refers to the Number l mill 

building. The common allegation is that: 

Two irregular shaped ppenings appear beside the walkway 

on the elevated platforms in the two mill buildings. 

One opening is between the stair step first handrail 

post and the structures diagonally installed brace 

member. This opening is in the shape of a triangle and 

is approximately thirty-six inches high and approximately thirty-six inches long. The opening to the 

right of the structure brace is also in the shape of a 

triangle and is approximately the same size. The 

openings are approximately twenty-five feet above the 

concrete floor below. 

Inspector Craig issued these citations on March 9-10, 1988, 

when he found the two elevated walkways without a handrail, 

approximately twenty-five feet above a concrete floor. The area 

is depicted in photographs marked and received into evidence as 

Respondent's Exhibit Nos. 6 and 7. 

It is clear from the pictures and the testimony that 

although there was no handrail or midrail installed at the time 

the citation was written~ there was a connecting brace bisecting 

the opening at these locations which formed two triangles of open 

space with maximum dimensions of 36 inches on each side, tapering 

down to zero at the point of intersection with the walkway. 

The plant.superintendent agreed with the inspector that it 

was unlikely that anyone would fall through these openings. I 

agree, and although I believe the current installation is 

superior and safer then the one cited, I also believe the cited 

condition was not in violation of the standard. I find the 

bisecting brace was in substantial compliance with the mandatory 

standard and was a sufficient railing/barrier. Therefore, 

Citation Nos. 3252472 and 3252474 will be vacated. 

Citation Nos. 3252475 and 3252476 

These two non-S&S citations charge that the respondent 

violated the mandatory safety standard found at 30 C.F.R. 

§ 56.14001 at two different pump installations at their facility. 

The citations are identical in all respects eKcept No. 3252475 

refers to the ~o. 1 or South water pump and ~o. 3252476 refers to 

the No. 2 or North water pump. The common allegation is that: 

357 
The shaft flanges containing bolt heads on each side 

of the rubber centered "Dodge" brand coupling betwe~n 

the motors and the water pumps are not provided with 

a guard. The coupling is approximately ten inches in 

diameter and the shaft center line is approximately 

twelve inches above the motor/pump mounting frame. 

Employees service this pump by removing the lubricant 

sight gauge and adding lubricant while the motor is 

in operation. While doing so, their hands are within 

approximately twelve inches of the moving parts. 

Inspector Craig issued these citations on March 10, 1988, 

when he observed that the Dodge couplings between the motor and 

the pump shaft were not guarded on either the No. 1 or No. 2 

water pump. He testified that there were bolt heads or cap 

screws projecting from the flanges on each side of the coupling 

that somebody could come into contact with and incur a disabling 

injury. He believed it was a significant and substantial 

violation because he thought it was reasonably likely to occur 

and if someone came into contact with this moving part, the 

injury resulting could be permanently disabling. 

Mr. Lucas, on behalf of the operator, argues that the pump, 

motor and coupling were all purchased as a unit from a single 

manufacturer and it (the assembly) came from the manufacturer 

without a guard. Furthermore, he states that the Dodge coupling 

is one of the safest couplings made and it doesn't need a guard. 

Mr. Lucas does not deny that the condition exists, but 

rather asserts that it has always been that way, a guard has not 

previously been required, the manufacturer makes it that way, it 

is a safe coupling and such a guard is not needed. However, with 

regard to the fact of violation, I credit the inspector's 

expertise on the issue of whether a guard would enhance the 

safety of this_pump assembly. 

Conversely, with regard to the special finding of 

"significant and substantial", I find in favor of the respondent 

that the likelihood of an injury resulting from this violation is 

so remote as to be "unlikely" as opposed to "reasonably likely". 

Therefore, Citation Nos. 3252475 and 3252476 will be affirmed as 

non-S&S citations only and a civil penalty of $20 for each one 

assessed. 

358 
ORDER 

1. Citation Nos. 3252463, 3252472 and 3252474 

ARE VACATED. 

2. Citation Nos. 3252464, 3252465, 3252468, 

3252469, 3252470, 3252475 and 3252476 

ARE AFFIRMED. 

3. The operator is ordered to pay a civil 

penalty of $140 within 30 days of the date 

of this decision. 

Distribution: 

G. Elaine Smith, Esq., U.S. Department of Labor, Office of the 

Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, 

TN 37215 (Certified Mail) 

Mr. Edward J. Lucas, Plant Superintendent, Moltan Company, P.O. 

Drawer 9, Middleton, TN 38052 (Certified Mail) 

/ml 

359 
MIKE E. 

PEABODY 

FEDERAL MINE SAFETY AND HEALTH REVIEW C0Mt9'1SSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 15 1989 

AMMERMAN, . . DISCRIMINATION 

v. 

COAL 

Complainant 

COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

Docket No. KENT 

MADI CD 88-19 

Camp No • 2 Mine 

ORDER OF DISMISSAL 

PROCEEDING 

89-79-D 

Before: Judge Weisberger 

On March 6, 1989, Complainant filed a statement indicating 

as follows: "I am writing this letter to inform you I wish to 

withdraw the 105c complaint. (Docket number Kent 89-79-D) that I 

filed against Peabody Coal Co. in order that this matter may be 

settled." 

Accordingly, based on the Complainant's request, the 

Comp),;aint is DISMISSED. 

~sb~ Administrative Law Judge 

Distribution: 

Mr. Mike E. Ammerman, Route 3, Box 108, Sturgis, KY 42459 

(Certified Mail) 

Eugene P. Schmittgens, Jr., Esq., Peabody Coal Company, 301 North 

Memorial Drive, P. o. Box 373, St. Louis, MO 63166 (Certified 

Mail) 

dcp 

360 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 16 1989 

TOMMY MEADE, DISCRIMINATION PROCEEDING 

Complainant 

v. 

NEW WORLD MINING COMPANY, 

Respondent 

Docket No. VA 89-9-D 

NORT CD 88-07 

No. 1 Strip Mine 

ORDER OF DISMISSAL 

Before: Judge Melick 

On March 2, 1989, an order was issued to the Complainant 

to show cause on or before March 10, 1989, why this case 

should not be dismissed for failure to comply with the 

Prehearing Order herein. 

On March 9, 1989, the office of the attorney for the 

Complainant, Berlin Skeen, Esq., called advising this office 

that the Complainant did not wish to pursue this case. In 

addition, Complainant has failed to respond to th Show Cause 

Order. 

Wherefore the captioned proceedings are 

prejudice. 

Distribution: 

Joe IL Roberts, Esq., P.O. Box 1438, . ··se, VA 24293 

(Certified Mail) 

with 

' 

Berlin w. Skeen, Jr., Esq., Nottingham Avenue, P.O. Box 3139, 

Wise, VA 24293 (Certified Mail) 

nt 

361 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAR 16 1989 

KENNETH A. McCOOL AND OTHERS, 

Complainants 

. . COMPENSATION PROCEEDINGS 

Docket No. CENT 87-71-C 

v. 

: No. 6 Mine 

0 C & W COAL COMPANY, 

Respondent : 

DECISION 

Appearances: No appearance was made for Complainants1 

John Stephenson, Minority Stockholder, 

O C & W Coal Company, Tulsa, Oklahoma, 

for the Respondent1 

Before: Judge Morris 

1. Complainant Kenneth A. McCool, appearing pro se, brought 

this action against respondent seeking compensation for himself 

and others l/ pursuant to Section 111 of the Federal Mine Act, 

30 u.s.c. §-801 et seq. 

2. The file contains a copy of a voluntary petition 

under Chapter Eleven showing the debtor as "Oklahoma, Colorado 

and Wyoming Corporation." The petition shows a filing date of 

October 7, 1987, as Case No. 87-01159 in the United States 

Bankruptcy Court for the Eastern District of Oklahoma. 

3. This compensation case was originally set for a hearing 

in Tulsa, Oklahoma on August 9, 1988. Complainant McCool and 

respondent were advised of said hearing by certified mail. 

4. On August 9, 1988, no party appeared at the hearing 

(Transcript,· August 9, 1988). 

5. On August 11, 1988, the judge issued an order to show 

cause addressed to Complainant McCool. 

6. By letter dated August 21, 1988, McCool stated he was 

working in Texas and he stated "(M)aybe we can get another time 

appointed." 

7. After correspondence it was indicated an agreeable site 

for Complainant McCool would be Amarillo, Texas. 

1/ The "others" are identified only by name1 the file does not 

contain any addresses for complainants other than McCool. 

362 
8. On September 21, 1988, a notice of hearing was issued 

setting the case in Amarillo, Texas. The parties were advised 

by certified mail. 

9. Subsequently, after a conference call with representatives of the parties, it was agreed a more convenient hearing 

site would be Tulsa, Oklahoma. On November 28, 1988, the parties 

were advised by certified mail that the hearing in Amarillo, 

Texas was cancelled. Further, the same notice provided that the 

case was reset for February 14, 1989, in Tulsa, Oklahoma. A 

return receipt by U.S. Mail indicated McCool was served with 

the notice of hearing. 

10. On February 14, 1989, Complainant Kenneth A. McCool 

failed to appear for the hearing. John Stephenson, Minority 

Stockholder, appeared for respondent (Transcript, February 14, 

1989). 

11. The judge has not been advised of any reason or excuse 

why Complainant McCool failed to appear at the second hearing. 

In view of the foregoing I conclude that Complainant McCool 

does not intend to prosecute this case. 

Accordingly, the case is dismissed. 

Law Judge 

Distribution: 

Mr. Kenneth A. McCool, P.O. Box 95, Bokoshe, OK 74930 

(Certified Mail) 

Mr. John Stephenson, O C & W Coal Company, 1603 South Boulder, 

Tulsa, Oklahoma 74106 (Certified Mail) 

Mr. Charles Ashcraft, President, O C & W Coal Company, 

4 Pourtales, Colorado Springs, CO 80906 (Certified Mail) 

/ot 

363 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 17 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

on behalf of 

RONALD D. ELLIOTT,, 

Complainant 

v. 

STERLING ENERGY INC., 

Respondent 

. . 

DISCRIMINATION PROCEEDING 

Docket No. KENT 88-194-D 

BARB CD 88-30 

No. 5 Mine 

ORDER OF DISMISSAL 

Appearances: W. F. Taylor, Esq., Office of .the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee 

for Complainant; 

Kenneth Krushenski, Esq., 210 West Central 

Avenue, LaFollette, Tennessee for Respondent. 

Before: Judge Melick 

At hearings on March 15, 1989, the parties agreed upon a 

settlement. The complete terms of the settlement were filed 

at hearing and approved by the individual Complainant 

Ronald Elliott. 

Under the circumstances this case is 

' I I 

l ~ '\ I J;~--~l '--

Gary Melick/ ' \ ..... I 

Adml.nistratii ve Law g~ 

,\ ,,_,,_ ;'~( 

' I , I Distribution: .' i 

(703) 756-6~1~1 ! 

w. F. Taylor, Esq., Office of the Soli ltor, U.S. ~epartment of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Kenneth Krushenski, Esq., 210 West Central Avenue, P. o. Box 

139, LaFollette, TN 37766 (Certified Mail) 

364 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAR 2 0 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v •. 

SKELTON INCORPORATED, 

Respondent 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-304-M 

A.C. No. 05-03985-05509 

El Jay 

DECISION 

Appearances: Robert J. Murphy, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner. 

Before: Judge Lasher 

This matter arises upon the filing of a proposal for penalty 

by the Secretary of Labor on September 30, 1988, seeking 

assessment of a $20 penalty against Respondent for a violation of 

30 C.F.R. Section 50.30, which standard provides: 

"(a) Each operator of a mine in which an individual worked 

during any day of a calendar quarter shall complete a 

MSHA form 7000-2 in accordance with the instructions and 

6riteria in Section 50.30-1, et cetera. 

(b) Each operator of a coal mine in which an individual 

worked during any day of a calendar quarter shall report 

coal production on Form 7000-2." 

At the hearing in Denver, Colorado, on February 13, 1989, 

Petitioner, as above noted, was represented by counsel. 

Respondent, although receiving actual and legal notification 

thereof, did not appear at the hearing or notify the presiding 

Judge or counsel of Petitioner of its intent to be absent 

therefrom. 

Petitioner submitted the testimony of Inspector Roy 

Trujillo, who issued the subject Citation No. 2640273 on June 6, 

1988, and presented documentary evidence which established its 

position as to the occurrence of the violation and the mandatory 

penalty assessment criteria set forth in the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. Section 815 (1977). (Based 

thereon, this bench decision was issued at close of hearing). 

365 
Inspector Trujillo, a 15 year veteran with MSHA, testified 

that the subject El Jay Mine of Respondent was, to his knowledge, 

in operation at the time the citation was issued, and that after 

examining computer data on June 6, 1988, he determined that the 

required form had not been filed by Respondent. He then called 

Ruth Gray, Respondent's secretary, and advised her that he would 

have to issue a citation. 

It appeared that the report in question ultimately arrived, 

but that the same arrived late. Since Section 50.30 requires the 

same to be filed within 15 days after the end of each calendar 

quarter, this constitutes the violation which is here found to 

have occurred. 

Based on evidence of record, and disclosed on the face of 

the citation it is further found that Respondent is the operator 

of a mine located in San Miguel County, Colorado, with a history 

(Exhibit P-1) of six previous violations during the pertinent 

two-year period preceding June 6, 1988. Four of the total of 

thirteen prior violations committed by Respondent prior to 1986 

were record keeping violations. The proposed penalty of $20 is 

found appropriate and is here assessed on the basis that this 

violation is determined to involve only a "low" degree of 

negligence, is not serious, and since there is no contention that 

Respondent did not proceed in good faith to promptly abate the 

same upon notification thereof. 

The burden of establishing inability to pay a penalty at a 

given monetary level is on the Respondent mine operator in a 

penalty proceeding and there is no such evidence in this record. 

In any event, in view of the token penalty of $20 being assessed 

here and opinion evidence from the Inspector that such a penalty 

would not jeopardize Respondent's ability to continue in 

business, it is concluded that there is no economic basis for 

reduction of the penalty sought. 

ORDER 

Citation No. 2640273 is affirmed in all respects. 

Respondent, if it has not previously done so, shall pay the 

Secretary of Labor within 30 days the sum of $20 as and for a 

civil penalty herein. 

t2~-6~//ft ~~/ft. Michael A. Lasher, Jr. 

Administrative Law Judge 

366 
Distribution: 

Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Ms. Ruth Gray, Secretary, Skelton, Inc., P.O. Box 125, Norwood, 

CO 81423 (Certified Mail) 

/bls 

367 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

CYPRUS EMPIRE CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CYPRUS EMPIRE CORPORATION, 

Respondent 

MAR 2 0 1989. 

. . 

. 

. 

. . 

. . 

. . 

. . 

CONTEST PROCEEDINGS 

Docket No. WEST 88-250-R 

Order No. 3225480; 5/24/88 

Docket No. WEST 88-251-R 

Citation No. 3225501; 5/24/88 

Eagle No. 5 Mine 

Mine ID 05-01370 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-331 

A.C. No. 05-01370-03578 

Eagle No. 5 Mine 

DECISION 

Appearances: R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 

Pittsburgh, Pennsylvania, 

for Contestant/Respondent; 

Edward H. Fitch, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Respondent/Petitioner. 

Before: Judge Morris 

These consolidated cases are before me under Section 105(d) 

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

§ 801 et seq., (the "Act"), to challenge the issuance by the 

Secretary of Labor of an order and a citation charging Cyprus 

Empire Corporation ("Empire"), with a violation of the regulatory 

standard published at 30 C.F.R. § 75.202(a).l/ 

After notice to the parties a hearing on the merits was held 

on November 21, 1988, in Denver, Colorado. The parties filed 

post-trial briefs. 

1/ WEST 88-250-R is the contest of Order No. 3225480; WEST 

88-151-R is the contest of the subsequent Citation No. 3225501; 

WEST 88-331 is the civil penalty proceeding. 

368 
Summary of the Cases 

Order No. 3225480, contested in WEST 88-250-R, states as 

follows: 

Loose, broken roof was present in the 

tailgate entry of the 16 East longwall 

working section. The loose, broken roof 

(coal roof) was 6 feet in length and 

6 feet 10 inches in width. The affected 

area was between two wooden cribs installed within 3 feet of the tailgate 

face shield (No. 126). A violation of 

75.202Cb). 2/ The operator had already 

dangered off the tailgate entry at the 

longwall face. 

Citation No. 3225501, contested in WEST 88-251, states as 

follows: 

Loose, broken roof was present in the 

tailgate entry of the 16 East longwall 

section. The coal roof between two 

previously erected wooden cribs was 

broken and some roof had fallen to 

the mine floor. Two previously installed resin grouted rods with bearing 

plates were protruding downward about 

16 inches. The roof coal had fallen 

from around the rods and the bearing 

plates. The affected area was 6 feet 

in length and 6 feet 10 inches in width. 

2/ At the commencement of the hearing, on the Secretary's motion, 

the order and citation were amended to allege a violation of 

30 C.F.R. § 75.202(a). 

Subparts (a) and (b) of § 75.202 provide as follows: 

§ 75.202 Protection from falls of roof, 

face and ribs. 

Ca) The roof, face and ribs of areas 

where persons work or travel shall be 

supported or otherwise controlled to protect persons from hazards related to falls 

of the roof, face or ribs and coal or rock 

bursts. 

Cb) No person shall work or travel under 

unsupported roof unless in accordance with 

this subpart. 

369 
This condition was one of the factors 

that contributed to the issuance of 

Imminent Danger Order No. 3225480 dated 

05-24-88i therefore, no abatement time 

was set. 3/ 

Stipulation 

The parties have stipulated as follows: 

One: the Eagle No. 5 Mine is owned and operated by Cyprus 

Empire Corporation. 

Two: the Administrative Law Judge has jurisdiction over 

these proceedingsi further, Cyprus Empire Corporation and the 

Eagle No. 5 Mine are subject to the jurisdiction of the Federal 

Mine Safety and Health Act of 1977. 

Three: the annual production of the Eagle No. 5 Mine 

is approximately 1.7 million tons. The operator is properly 

described as a large operator. 

Four: the authenticity of the exhibits offered in 

hearing is stipulated, but no stipulation is made as to the 

facts asserted in such exhibits. 

Five: the subject order and citations, modifications 

thereto and terminations were properly served by a duly authorized representative of the Secretary of Labor upon agents of 

Cyprus Empire Corporation on the date or dates stated therein, 

and may be admitted into evidence for the purposes of establishing their issuance and not the truthfulness or relevancy of 

any statement asserted therein. 

Six: the history of violations in the 24 months preceding the subject order and citation was 74 violations in 320 

inspector days. The parties have agreed that this constitutes 

a good history. 

Seven: the imposition of a penalty by the Administrative 

Law Judge will not affect Cyprus Empire Corporation's ability to 

continue in business. Cyprus Empire does not stipulate to the 

appropriateness of the imposition of any penalty. 

3/ Order No. 3225480 and Citation No. 3225501 recite slightly 

different facts but it is agreed that both refer to the identical area. 

370 
Eight: the longwall retreated 16 and one half feet 

between the time the area was dangered off on May 20th and 

May 24th, the date the inspector issued his order. 

Nine: Various dates are involved in these cases. The 

pertinent week days are as follows: 

May 20, a Friday 

May 21, a Saturday 

May 22, a Sunday 

May 23, a Monday 

May 24 1 a Tuesday 

Sununary of the Evidence 

This litigation arose when Phillip R. Gibson, an MSHA 

inspector experienced in mining, inspected Empire's Eagle No. 5 

coal mine. At the tailgate end of the 16 East longwall section 

he observed a yellow ribbon in place as a danger sign. As he 

closely observed the nearby roof he saw the condition he later 

described in the order and citation. 

He saw the roof was broken and unstable. Coal had fallen 

from it around two previously installed resin-grouted roof bolts. 

The bearing plates were about 16 11 below the roof line. 

There were two wooden cribs along the longwall face. The 

space between the two wooden cribs measured 6' x 6'10". The 

cribs had been placed about 3' from the last face shield (Shield 

No. 126) (Tr. 30, 31). 

The travelway along the face of the 16 East longwall would 

exit into this exposed area (Tr. 30-32i Joint Ex. 1). 

Even though the operator had placed a danger tape across the 

walkway, the inspector nevertheless felt the condition involved 

imminent danger and a violation of the regulation. 

The roof appeared to be so unstable that it could fall at 

any time. If it fell it could cause serious physical harm, or 

even death CTr. 30-32i Ex. G-9). 

The area cited by the inspector is an area where miners 

would normally work or travel. But no miner was observed 

entering the dangered off area (Tr. 33). 

371 
The inspector went to the surface, called his superior and 

discussed what action should be taken. They concurred that the 

best approach would be to allow mining to continue. He then 

modified the citation so as to permit the mining cycle to resume. The mining progressed beyond the loose broken roof to 

where wooden cribs contained the roof (Ex. G-2, G-3). 

Empire's witnesses Pobirk, Moss and Caria testified for the 

operator. 

ROBERT POBIRK, in charge of the shift, is experienced in 

mining and longwall equipment (Tr. 80-87). 

On May 20th the foreman learned the mine roof had deteriorated. Upon observing the condition he was not worried about a 

roof fall; rather, he was concerned about heaving in the area. 

He considered his options and added two cribs, a roof jack and 

two timbers. However, he did not support the 6' x 6'10" area in 

the roof because it was heaving and rolling. He felt it was too 

dangerous to support the 6' x 6'10" area. He would only support 

that area "as a last resort" (Tr. 88, 99). 

Pobirk also instructed that the area be dangered off between the walkway and the bad top. In addition, the fire boss 

put danger tape considerably outby the hazard. 

The bad top extended on the tailgate side and it was within 

eight to ten feet of the shield. 

On the 24th (Tuesday) the roof and 6' x 6'10" area was not 

in immediate danger of collapsing. On the 25th (Wednesday) the 

supplemental supports were adequate. 

CHARLES J. MOSS, section foreman and a person experienced 

in mining, was responsible for installing the cribbing. 

On May 20th Moss observed the cracks and squeezing and also 

saw that extra supports were necessary. He did not support the 

6' x 6'10" area because it would expose a miner to the hazardous 

condition of the roof. Moss put up the yellow ribbon from rail 

to rail on the walkway. 

In the longwall section over Monday (May 23) and Tuesday 

(May 24) the roof got worse but Moss didn't recall any roof 

falling down. On Tuesday night Moss scaled down the area. 

372 
In Moss' view the best way to handle the 6' x 6'10" area 

was to mine past it. This was done. 

SAMUEL L. CARIO, Empire's longwall coordinator, inspected 

the longwall on the 20th and concurred in the views of Pobirk and 

Moss. Further, the operator's roof supports in this area exceeded the requirements of its roof control plan (Tr. 119-123). 

Discussion 

These cases involve longwall mining issues with a focus on 

the 107(a) withdrawal order and the roof control regulations. 

Specifically, the issues concern whether the withdrawal order 

was appropriatei further, was the order based on a condition of 

imminent danger and, finally, did the Secretary establish a 

violation of 30 C.F.R. § 75.202(a). 

The withdrawal order in contest here was issued by virtue of 

Section 107(a), 30 u.s.c. § 817(a), which provides as follows: 

If, upon any inspection or investigation 

of a coal or other mine, which is subject 

to this Act, an authorized representative 

of the Secretary finds that an imminent 

danger exists, such representative shall 

determine the extent of the area of such 

mine throughout which the danger exists, 

and issue an order requiring the operator 

of such mine to cause all persons, except 

those referred to in section 104(c), to be 

withdrawn from, and to be prohibited from 

entering, such area until an authorized 

representative of the Secretary determines 

that such imminent danger and the conditions 

or practices which caused such imminent 

danger no longer exist. The issuance of 

an order under this subsection shall not 

preclude the issuance of a citation under 

section 104 or the proposing of a penalty 

under section 110. 

The term "imminent danger" is found in the Federal Coal 

Mine Health and Safety Act of 1969 and amendments to the 1977 Act. 

The term means: 

373 
(T)he existence of any condition or practice 

in a coal or other mine which could reasonably be expected to cause death or serious 

physical harm before such condition or 

practice can be abated. 30 u.s.c. § 802(j). 

Historically, the first tests for determining whether an 

imminent danger exists were set forth in Freeman Coal Mining 

Corp., 2 IBMA 197, 212 <1973), and Eastern Associated Coal Corp., 

2 IBMA 128, 80 I.D. 400 (1973), aff'd, Eastern Associated Coal 

Corp. v. Interior Board of Mine Qperations Appeals et al, 

491 F.2d 277 (4th Cir. 1974). In Eastern the Board of Mine 

Operations Appeals, formerly a division of the Interior Department's Office of Hearings and Appeals, herein "BMOA", held 

that: 

••• an imminent danger exists when the 

condition or practice observed could 

reasonably be expected to cause death 

or serious physical harm to a miner if 

normal mining operations were permitted 

to proceed in the affected area before 

the dangerous condition is eliminated; 

thus, the dangerous condition cannot be 

divorced from the normal work activity. 

2 IBMA at 129. 

In Freeman the BMOA elaborated on its decision in Eastern 

and held that the word "reasonably" as used in the definition of 

imminent danger necessarily means that the test of imminence is 

objective and that the inspector's subjective opinion is not 

necessarily to be taken at face value. The Board also gave this 

test of "imminent danger": 

••. would a reasonable man, given a qualified inspector's education and experience, 

conclude that the facts indicate an impending accident or disaster, threatening 

to kill or to cause serious physical harm, 

likely to occur at any moment, but not 

necessarily immediately? The uncertainty 

must be of a nature that would induce a 

reasonable man to estimate that, if normal 

operations designed to extract coal in the 

disputed area proceeded, it is at least 

just as probable as not that the feared 

accident or disaster would occur before 

elimination of the danger. (Emphasis added) 

2 IBMA at 212. 

374 
The United States Court of Appeals for the 7th Circuit in 

Freeman Coal Mining Company v. Interior Board of Mine Qperations 

Appeals, et al., 504 F.2d 741 (1974), while quoting BMOA's 

definition of "imminent danger," went on to add its own: 

An imminent threat is one which does 

not necessarily come to fruition but 

the reasonable likelihood that it may, 

particularly when the result could 

well be disastrous, is sufficient to 

make the impending threat virtually 

an immediate one. (Emphasis added) 

504 F.2d at 745. 

The Commission, in Pittsburg & Midway coal Mining Company 

v. Secretary of Labor, 2 FMSHRC 787 (1980), also set a course 

for approaching imminent danger questions: 

••• we note that whether the question of 

imminent danger is decided with the "as 

probable as not" gloss upon the language 

of section 3Cj), or with the language of 

section 3(j) alone, the outcome here would 

be the same. We therefore need not, and 

do not, adopt or in any way approve the 

"as probable as not" standard that the 

judge applied. With respect to cases 

that arise under the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801, 

et seq., we will examine anew the guestion 

of what conditions or practices constitute 

an imminent danger. (Emphasis added) 

2 FMSHRC at 788. 

In the enactment of the 1977 Act, the Senate Committee on 

Human Resources stated as follows: 

The Committee disavows any notion that 

imminent danger can be defined in terms 

of a percentage of probability that an 

accident will happen; rather the concept 

of imminent danger requires an examination of the potential of the risk to 

cause serious physical harm at any time. 

375 
It is the Committee's view that the 

authority under this section is essential 

to the protection -0f miners and should be 

construed expansively by inspectors and 

the Commission. S. Rep. No. 95-181, 

95th Cong., 1st Sess. (1977), 

rep~inted 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 626 (1978). 

The facts in this case establish MSHA Inspector Gibson 

observed that a 6' x 6'10" area of the roof was broken and unstable; coal had fallen from two roof bolts (Tr. 30). The roof 

in this area was slanted downward and fractured. Any size piece 

of coal could fall out of the area. 4/ The bad roof was between 

two ribs and two roof bolts (Tr. 45): 

The inspector expressed the credible opinion that the roof 

condition was imminently dangerous if a miner was exposed to it 

(Tr. 31). 

Empire's witnesses did not fully embrace the inspector's 

opinion concerning imminent danger but their actions do. When 

Pobirk, the foreman, observed the roof on the 20th (four days 

before the inspector) 5/ he was concerned about the heaving. 

He then installed two cribs together with roof jacks and two 

timbers (Tr. 88-90). He also had the area between the walkway 

and the bad top dangered off with tape (Tr. 92). Pobirk also 

concluded no additional support should be put in the 6' x 6'10" 

area because that area was heaving. It was too hazardous to 

support the area (Tr. 94, 99). 

4/ On Friday, May 20th, a different portion of the roof collapsed and the tailgate of the longwall was impassible (Tr. 37, 

46, 47; Ex. G-6, G-7). However, the Solicitor disavows that 

these cases involve a blocked tailgate as prohibited in § 75.215 

(Tr. 24, 25) • 

~/ The inspector at one time indicated the 6' x 6'10" area of 

the roof could have been supported on the 20th but not when he 

issued his order four days later. However, no evidence supports 

that contention and I reject it. On the 20th I conclude the roof 

was as described by witness Pobirk. 

376 
As provided by the Mine Act and the case law, the expectancy 

of death or serious injury to a miner is necessary to support a 

condition of imminent danger. Such an expectancy existed here: 

Inspector Gibson testified the longwall was operating normally 

(Tr. 33). In addition, under normal circumstances, the tailgate 

end of the longwall would allow a miner to come directly off of 

the longwall into the return entry. In addition, as Inspector 

Gibson testified, the danger ribbon neither supports the roof nor 

takes it down (Tr. 35). 

The Solicitor admits that no miner walked under the area 

of the bad roof and no one went through the area while it was 

dangered off (Tr. 11, 12). However, actual exposure to a miner 

to the hazardous condition is not required to find that a condition of imminent danger exists. 

Empire contends that § 75.202Ca) limits its scope to 

"areas where persons work or travel." Therefore, the order 

must be vacated because entry into the area was prohibited by 

the installation of the danger tape. I disagree. The purpose 

of a 107(a) order is not only to cause the withdrawal of miners, 

but to insure that they remain out of the affected area until 

the condition is corrected. Further, it is clear that there 

were miners in the vicinity of the defective roof. The Valley 

Camp Coal Company, 1 IBMA 243, 248 (1972); Rio Algom Corporation, 

2 FMSHRC 187 (1980). 

Empire further argues its interpretation of the regulation 

is correct, otherwise a violation of the standard would exist 

every time roof is exposed and not immediately supported. 

Specifically, Empire cites 30 C.F.R. § 75.208 and 30 C.F.R. 

§ 75.222(e) to support its position that the regulations contemplate the existence of unsupported roof. 

I concur the regulations contemplate the existence of 

unsupported roof. However, such unsupported roof cannot be 

located where a miner could come directly off the longwall into 

the return entry which is the situation here. 

In support of its view Empire cites Beth Energy, Inc., 

10 FMSHRC 804, 808 (1988) (Melick, J); Cambridge Mining 

Corporation, 1 FMSHRC 987 (1979) (Commission), and Helen 

Mining Co., 6 FMSHRC 529 (1984) (Koutras, J). 

The cases relied on by Empire are not inapposite the views 

expressed herein. In Beth Energy Judge Melick found that a mine 

examiner traveled a weaving course between three entries to 

avoid the bad roof. 

377 
In Cambridge the Commission affirmed a violation of 

30 C.F.R. § 75.200. Cambridge does not control the factual 

situation here. As the Commission noted the operator "had 

made the decision to have the men work in another entry until 

this [roof support] was done", 1 FMSHRC at 987. 

Helen Mining is not controlling. Judge Koutras observed 

the pertinent prohibition of the regulation was that "no person 

shall proceed beyond the last permanent support unless adequate 

temporary support is provided," 6 FMSHRC at 567. In short, 

Judge Koutras' decision involved a regulation that was similar 

to the present§ 75.202(b). The Secretary's evidence in the 

instant case does not support a violation of§ 75.202(b). In 

short, subpart (a) is broader in scope than (b) as it encompasses 

hazardous areas which might endanger miners in the immediate 

vicinity. 

The final principal issue concerns whether Empire violated 

the roof control regulation, 30 C.F.R. § 75.202(a). 

The present regulation was adopted January 27, 1988. 

The regulation, in its relevant part, provides that where 

hazards exist the "roof ••• shall be supported or otherwise 

controlled •••• " 

Historically, it appears that taking down loose roof by 

barring it down constitutes a form of control as contemplated 

by the current regulation. In this case section foreman 

Charles Moss scaled down the area on Tuesday night. His scaling 

down efforts were done from the end of the walkway (Tr. 112). 

However, I am unable to conclude that Moss' efforts at scaling 

down the roof constituted compliance with the regulations. 

Specifically, Moss' attempt-was on Tuesday night and it is not 

established if his activities were before or after the MSHA 

order was issued. Further, there is no evidence in the record 

as to what, if anything, the scaling down effort accomplished. 

Scaling down could not constitute compliance unless it was 

effective. The key ingredient of effectiveness is not shown 

in this case. 

Finally, in construing§ 75.202(a), what interpretation 

should be placed on the words that the roof must be "supported 

or otherwise controlled." 

The Secretary argues that "otherwise controlled" is alternative language to "supported" and must constitute some form of 

physical restraint of the roof (Brief 11, 12). On the other 

hand Empire argues that barring down, the installation of yellow 

danger tape and continued mining beyond the defective roof constituted "control" within the meaning of§ 75.202(a). 

378 
In considering these issues I conclude that compliance 

with § 75.202(a) can be accomplished in several ways. Initially, 

as the regulation provides, the area can be supported. In the 

alternative, the area may be barred down. The alternative of 

barring down a defective area is contained in the statute and it 

has been a control historically used. If support and barring 

down are not effective (the situation here) then the regulation 

requires effective control. I agree with the Secretary's view 

that some form of physical restraint of the defective area is 

required. 

There is no evidence in the instant case whether the longwall equipment itself constituted an effective form of physical 

restraint of the defective roof and thus was a "control" within 

the meaning of§ 75.202(a). 

Empire further objects to the Secretary's amendment of her 

order and citation so as to allege a violation of § 75.202(a) 

in lieu of§ 75.202(b). Empire observes that the citation was 

issued on May 24, 1988. A month before the hearing the Solicitor 

verbally advised Empire's counsel he was considering asking leave 

to allege a violation of Section 75.202Ca) (Tr. 12, 13). The 

modification was accomplished the morning of the hearing (Tr. 10, 

11). 

Empire's objections are without merit. Only the legal 

theory was changed, not the facts as alleged by the Secretary. 

Further, I agree with Empire that it cannot readily argue that 

the modification resulted in surprise CTr. 13). In the absence 

of surprise, I reaffirm the ruling made at the hearing. 

The cases cited by Empire in opposing the Secretary's 

amendment are not inapposite the views expressed herein. 

A ruling concerning amendments to the pleadings is largely 

discretionary. See Rule 15(a), Fed. R. Civ. P. 

For the foregoing reasons the imminent danger order and the 

citation should be affirmed. 

Civil Penalty 

The statutory criteria to assess civil penalties is contained in Section llO(i) of the Act, 30 u.s.c. 820Ci). 

379 
The stipulation indicates the operator has a favorable 

history of prior violations; further, the proposed penalty is 

appropriate since it will not affect the ability of this large 

operator to continue in business. The gravity of the violation 

is high since death or serious injury could occur if a miner 

was struck by the defective roof. The Secretary overestimated 

the operator's negligence but I conclude it was low since the 

area was dangered off and no miners entered the area. The 

operator is to be credited with statutory good faith in abating 

the order even though it was by continuing the mining cycle. 

On balance, a civil penalty of $200 is appropriate. 

For the foregoing reasons, I enter the following: 

ORDER 

1. In WEST 88-250-R: the contest of Order No. 3225480 is 

dismissed. 

2. In WEST 88-251-R: the contest of Citation No. 3225501 is 

dismissed. 

3. In WEST 88-331 Citation No. 322~~01 i~ affirmed and a 

civil penalty of $200 is assessed. 

Law Judge 

Distribution: 

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 600 Grant Street, 

58th Floor, Pittsburgh, PA 15219 (Certified Mail) 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

/ot 

380 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAR 2 0 1989 

RANDY G. DAVIS, 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. WEST 89-21-DM 

v. 

MD 88-3.8 

PHELPS DODGE CORPORATION, 

Respondent 

ORDER OF DISMISSAL 

Before: Judge Morris 

1. On October 21, 1988, Complainant Randy G. Davis filed 

his complaint of discrimination herein. 

2. With his complaint he filed a note reading, in part, 

"We are in the process of looking for an attorney, we will 

supplement this appeal in the near future." 

3. In January 1989 complainant, in a telephone call, told 

the judge that he desired to drop his case against respondent. 

The judge directed complainant to confirm his request in writing. 

No such written request was filed. 

4 ., On February 6, 1989, the judge 

cause directing complainant to write to 

whether he desired to pursue his claim. 

indicated that if the judge received no 

dismiss the case. 

issued an order to show 

the judge and indicate 

Further, the order 

correspondence he would 

5. The above order was served on complainant by certified 

mail and complainant has· failed to comply with the order. 

For the foregoing reasons, the complaint of discrimination 

filed herein is dismissed. 

Law Judge 

Distribution: 

Mr. Randy G. Davis, 123 Verbena, Morenci, AZ 85540 (Certified 

Mail) 

G. Starr Rounds, Esq., Linda H. Miles, Esq., Evans, Kitchel & 

Jenckes, P.C., 2600 North Central Avenue, Phoenix, AZ 85004-3099 

(Certified Mail) 

/ot 381 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ARNOLD SHARP, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 0 1989 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. KENT 88-165-D 

: MSHA Case No. PIKE CD 88-10 

BIG ELK CREEK COAL COMPANY, 

Respondent No. 5 Surface Mine 

Appearances: 

Before: 

DECISION 

Arnold Sharp, Bulan, Kentucky, pro se, for the 

Complainant~ 

Edwin s. Hopson, Esq., Wyatt, Tarrant & Combs, 

Louisville, Kentucky, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a pro se discrimination 

complaint filed by Mr. Sharp on July 18, 1988, against the 

respondent pursuant to section lOSCc) of the Federal Mine 

Safety and Health Act of 1977. In a statement executed by 

Mr. Sharp on April 13, 1988, on an MSHA complaint form, he 

made the following allegation of discrimination: 

On 4-4-88, I told Harlan Couch, Foreman, 

Night Shift, that I would be off from work on 

4-11-88 to be in court in Lexington. I again 

reminded him on 4-9-88. He said it would be 

fine. On 4-12-88, an inspector wrote 15 violations on the mine. I was told I would have to 

prove I was in court on 4-11-88 or I would be 

fired. I feel I am being harassed. I request 

that the Foreman stop harassing me. 

The Secretary of Labor, Mine Safety and Health Administration CMSHA), conducted an investigation of Mr. Sharp's complaint, and by letter dated July 8, 1988, advised Mr. Sharp 

that on the basis of the information gathered during the 

course of its investigation, MSHA concluded that a violation 

of section 105(c) of the Act had not incurred. Mr. Sharp was 

382 
advised of his right to pursue his claim further with the 

Commission, and his pro se complaint was received and docketed 

by the Commission on July 18, 1988. 

The respondent filed an answer to the complaint denying 

that it had discriminated against Mr. Sharp, and it takes the 

position that any personnel actions taken against Mr. Sharp 

were for reasons unrelated to any protected safety activities 

on his part. A hearing was convened in Pikeville, Kentucky, 

on January 4, 1989, and the parties appeared and participated 

fully therein. The parties filed posthearing briefs, and I 

have considered their respective arguments in the course of my 

adjudication of this case. I have also considered all oral 

arguments and representations made by the parties on the 

record during the course of the hearing. 

Issues 

The issues in this case are (1) whether or not Mr. Sharp's 

section foreman Harlan Couch harassed Mr. Sharp by requesting 

him to produce an excuse for a day's absence from his job, 

(2) whether or not Mr. Couch's request 'for such an excuse was 

motivated by his alleged belief that Mr. Sharp had called an 

MSHA inspector and informed him about certain violative mine 

conditions which resulted in an inspection and issuance of citations against the respondent; and (3) whether the respondent's 

decision to treat Mr. Sharp's absence from work as an unexcused 

absence was made to retaliate against him for past discrimination claims filed again~t the respondent, or to harass him or 

otherwise retaliate against him for calling the inspector. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 301 et seg. 

2. Sections 105(c)(l), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 815(c)(l), (2) and 

( 3 ) • 

3. Commission Rules, 29 C.F.R. § 2700.l et~· 

Complainant's Testimony and Evidence 

Arnold Sharp, the complainant; stated that on April 4, 

1988, he informed Mr. Harlan Couch, his day shift foreman, 

that he had to be off work of April 11~ 1988, because he had 

to be in court in Lexington on that day, and that Mr. couch 

"said fine." Upon his return to work after his court appearance, Mr. Sharp stated that Mr. Couch informed him that he had 

383 
to provide proof showing where he was at on April 11, "because 

the federal had been there and wrote them up citations, and I 

was the one report them" (Tr. 16). Mr. Sharp asserted that he 

was harassed because the. mine inspector was at the mine and 

"wrote them up." He also stated that "everytime a mine inspector comes on the job I'm harassed" (Tr. 17). 

Mr. Sharp explained that his court appearance was in 

connection with a consumer complaint that he had filed with 

the Better Business Bureau against an automobile dealer who 

had failed to make certain repairs to an automobile which he 

had purchased. Mr. Sharp produced copies of certain documents 

concerning his complaint, and one of the documents is a Notice 

of Hearing dated April 5, i988, from the Better Business 

Bureau of Central Kentucky, Inc., informing Mr. Sharp that he 

was to appear before an arbitrator at 11:00 a.m., April 11, 

1988, in Lexington, Kentucky, when the complaint would be 

heard. Mr. Sharp confirmed that he appeared at the hearing on 

April 11, and did not go to work. H~ also stated that he had 

also reminded Mr. Couch on April 9, that he would be in court 

and not at work, and that Mr. Couch responded that "it would 

be fine." 

Mr. Sharp stated that Mr. Mike Cornett took over as boss 

of the day shift on April 11, the day that he was off, and 

that when he returned to work on the evening of April 12, 

Mr. Couch accused him of calling the MSHA·inspectors and 

reporting the conditions which resulted in the issuan~e of 

citations that same day. Mr. Sharp .stated that Mr. Couch told 

him that "we think you called" the inspectors, and informed 

him that unless he could produce proof as to his whereabouts 

on April 11, he would be fired (Tr. 20). 

Mr. Sharp admitted that when Mr. Couch asked him to produce some proof that he was in court, he did not show him the 

documents from the Better Business Bureau because Mr. Couch 

did not "ask him right." Mr. Sharp stated that "if he had 

asked right, I would have gladly showed him" (Tr. 21). 

Mr. Sharp stated that instead of informing him that he needed 

to see proof of his court appearance, Mr. Couch accused him of 

calling in the mine inspectors, and that is why he did not 

show the documents to Mr .• Couch (Tr. 21-22}. Mr. Sharp confirmed that he subsequently contacted the inspectors and 

obtained copies of thei~ "mine inspection reports" in order to 

prove that they issued citations on the day he was allegedly 

harassed by Mr. Couch. Mr. Sharp confirmed that he had not 

called in the inspectors or reported any violations, but that 

he did tell Mr. Couch that this was the case. When asked why 

he failed to tell Mr. Couch that he had not reported anything 

384 
to the inspectors, Mr. Sharp responded "It doesn't do any good 

to tell him. I didn't see any use in it, I was being accused 

of it" CTr. 22-23). 

Mr. Sharp confirmed that his allegation of harassment is 

based on the fact that Mr. Couch threatened to fire him if he 

could not produce proof that he was in court, and the fact 

that the respondent resents him since he prevailed in a prior 

discrimination case. Mr. Sharp stated that he is harassed 

every day when he is at work, and he produced a notebook with 

his notes which he claimed were examples of instances of 

harassment. He also produced ~a piece of a rain suit" which 

he claims he was required to wear while steam-cleaning equipment, and he cited this as an example of harassment by the 

respondent (Tr. 25-27). 

Mr. Sharp produced a notebook containing personal notes 

which he kept, and he offered them to the court as "examples" 

of acts of harassment by the respondent. He was given an 

opportunity to review the material and to cite any instances 

of harassment which may be documented by these materials CTr. 

28-30). 

Mr. Sharp produced some notes dated April 30, and May 4, 

1988, dealing with the failure of two individuals named 

"Allan" and "John" to produce doctor's excuses for days they 

missed work. Mr. Sharp implied that they were not asked t6 

provide proof to Mr. Couch that they missed work, and that he 

is the only person who•is required to show such proof (Tr. 

31). 

Mr. Sharp produced a copy of a memorandum dated July 26, 

1988, addressed to him, which stated "This is to serve notice 

that you have been warned verbally about stopping work and 

leaving the job site prior to the end of the shift on July 20 

and 26, 1988." Mr. Sharp denied that he left work early on 

these days, and he asserted that the respondent attempted to 

get other miners to sign and make false statements against him 

to support management's claim that he left work early (Tr. 

32-33). 

Mr. Sharp confirmed that he was not laid off or disciplined in any way by Mr. Couch as a result of taking off work 

for his consumer complaint appearance (Tr. 35, 38-40). 

Mr. Sharp asserted that the respondent has attempted to have 

miners make false statements against him because "they are 

trying to set me up to fire me, because they resent me because 

I beat them in the first case. They started from day one when 

I went on the job from Judge Fauver's decision. It started 

385 
the first day I started to work 

thing they have done" {Tr. 35). 

• and the notes tell everyWhen asked why he had not gi.ven his notebook and notes to 

MSHA when he filed his complaint on April 13, 1988, Mr. Sharp 

responded as follows {Tr. 41). 

JUDGE KOUTRAS: And another question I would 

have is, why wasn't all this given to MSHA when 

you went there on April the 13th to file this 

complaint? Why didn't you give the complaint 

examiner that pile of paper there? 

THE WITNESS: It was give to him. 

JUDGE KOUTRAS: And what did they do? 

THE WITNESS: Nothing, because MSHA is in with 

the company. 

JUDGE KOUTRAS: Oh, okay. The judge is in with 

the company, and MSHA is in with the company, 

right? 

THE WITNESS: I ain't saying the judge is. 

JUDGE KOUTRAS: Well, okay. 

THE WITNESS: But I'm saying MSHA is. 

JUDGE KOUTRAS: MSHA is. 

THE WITNESS: They won't take nothing against 

Big Elk Creek Coal. 

JUDGE KOUTRAS: Okay. 

THE WITNESS: I don't care what kind of proof 

you give them. I've given them all kinds of 

proof. 

On cross-examination, Mr. Sharp stated that his conversation with Mr. Couch on April 12, 1988, concerning his consumer 

complaint appearance took place on the mine parking lot prior 

to his starting work at 6:00 p.m., and he described the conversation which took place as follows {Tr. 52-53): 

Q. Was there anybody close enough to overhear 

what was being said? 

386 
A. No, but he told it on the C.B. 

Q. Okay, I'll get .to that in a minute. 

Now, if you would, tell me as best you can 

recall it word for word what you said, and what 

Harlan Couch said on that occasion on April the 

12th. 

A. I come up, I parked, got out of my truck, 

started walking over towards the other men. He 

stopped, said where's the proof that you were 

in court yesterday. 

I said, what do you mean. I told you I 

was out. He said, well, the mine inspector has 

been up there, and we think you reported us. 

We got wrote up. You've got to show proof 

where you was at or you're fired on account of 

it. 

Q. What did you say? 

A. Didn't say nothing, except I didn't bring 

proof because if they'd have asked it right --

Q. Now, what did you say? Did you say anything in response to his statement. 

A. No, not that I can recall. 

Q. Was that the end of the conversation? 

A. As far as I can recall, yes. 

Q. Oid Mr. Couch say anything else? 

A. Not that I can recall. 

Mr. Sharp denied that he ever told Mr. Couch that he 

would be off work on April 11, 1988, because he was going to 

court against the respondent in Lexington. He also denied 

that he ever told Mr. Couch that he was going to court in 

Lexington to sue the respondent for $150,000 or "a lot of 

money" (Tr. 54-55). 

In response to further questions, Mr. Sharp stated that 

some of his fellow miners, including Mr. Ronnie Ball, told him 

387 
that they" heard Mr. Couch state on the C.B. radio at the mine 

that he was going to require him to prove that he was in court 

on April 11, or he would fire him "because they got wrote up" 

(Tr. 58). Mr. Sharp confirmed that he did not personally hear 

Mr. Couch make the statements over the C.B. (Tr. 57). 

Mr. Sharp confirmed that he simply told Mr. Couch that he 

had to be in court in Lexington, and did not further explain 

what the proceeding was all about (Tr. 78). 

NOTE: Prior to the convening of the hearing on the 

record, Mr. Sharp advised me that he had subpoenaed mine 

employee Ronnie Ball to appear on his behalf, and he furnished 

me with a copy of the subpoena certifying that he served the 

subpoena on Mr. Ball. However, Mr. Ball failed to appear. 

After confirming that Mr. Ball was in fact employed by 

the respondent, respondent's counsel was requested to ascertain Mr. Ball's whereabouts and to instruct him to come to the 

hearing. Respondent's counsel advised me that he requested 

respondent's management representative, who was present in the 

courtroom, to locate Mr. Ball and to instruct him to come to 

the hearing. Mr. Ball was subsequently contacted, and 

instructed to come to the hearing (Tr. 86). The hearing 

proceeded, and the parties were informed that Mr. Ball would 

be given an opportunity to testify when he arrived (Tr. 6). 

Mr. Sharp asserted that Mr. Ball would testify that he 

was "set up and.fired" by the respondent because he would not 

sign a false statement against him, and that he has turned 

thi~ information over to "the Federal," and that Mr. Ball will 

be subpoenaed to appear in Federal court with regard to this 

matter. Mr. Sharp stated that he has turned the matter over 

to the U.S. Attorney in Lexington for prosecution (Tr. 37). 

Mr. Sharp stated further that Mr. Ball would also testify 

that he heard Mr. Couch state over the mine C.B. radio that he 

would fire Mr. Sharp if he did not provide proof that he was 

in court (Tr. 38). 

Mr. Sharp later confirmed that he served the subpoena on 

Mr. Ball on December 31, 1988, on the mine parking lot (Tr. 

56-57). 

Mr. Sharp also testified that the respondent attempted to 

have Mr. Ball and another miner, Stanley Boggs, sign false 

statements that he (Sharp) had threatened to kill Harlan 

Couch, Mike Cornett, and M. c. Couch, and that Mr. Ball was 

subsequently fired for damaging a truck. Mr. Sharp stated 

388 
that after.Mr. Ball was fired, he discussed the matter with 

him, and Mr. Sharp advised him to file a complaint with MSHA. 

Mr. Ball filed a complaint on June 23, 1988, but he was subsequently reinstated by the respondent after signing a release 

and droppi_ng his complaint (Tr. 58-60) • 

Ronnie Ball was called to testify, and he denied that he 

was served with any subpoena appear at the hearing (Tr. 

111-114). 

Mr. Ball denied that he ever heard Mr. Harlan Couch 

announce over the mine C.B. radio that he would fire Mr. Sharp 

if he could not prove that he was in court on April 11, 1988 

(Tr. 115-116). Mr. Ball stated further that he has no information or evidence with respect to any alleged acts of harassment by the respondent against Mr. Sharp, and that he has 

never discussed with Mr. Sharp any of the complaints he has 

initiated against the respondent (Tr. 118). 

Mr. Ball confirmed that he was discharged by the respondent in June, 1988, after a rim on a truck he was driving was 

broken, and that his dismissal was for "a few days until they 

found out that I was not the cause of the rim being busted." 

He confirmed that he had filed a discrimination complaint with 

MSHA several days after his discharge, but later agreed to 

dismiss the complaint after he returned to work. Mr. Ball 

stated that during MSHA's investigation of his complaint, the 

MSHA special investigator who interviewed him stated in his 

report that he had been fired because "I did not go for the 

company against Arnold Sharp and that was a false statement, 

so, I dropped charges" (Tr. 118-122). 

Respondent's Testimony and Evidence 

Harlan Couch, respondent's night shift foreman, testified 

that he has worked for the respondent for approximately 

1 year, and that in April of 1988, 19 miners worked on his 

shift. Mr. Couch stated that on April 4, 1988, Mr. Sharp 

requested to be off work on April 11, 1988, because "he had to 

go to court with the company. 1 told him okay." Mr. Couch 

stated that he assumed Mr. Sharp had some action against the 

company. Mr. Sharp asked him again on April 11, 1988, and 

Mr. Couch told him "fine." At that time, Mr. Couch stated 

that he asked Mr. Sharp if his court appearance was still with 

the company, and that Mr. Sharp replied "yes, concerning 

$150,000 worth" and Mr. Couch replied "that's okay" (Tr. 

64-66). 

389 
Mr. couch confirmed that Mr. Sharp was off work on 

April 11, 1988, and that when he (Couch) asked day shift 

foreman Mike Cornett about the trial, Mr. Cornett advised him 

that the respondent was .not in court with Mr. Sharp. Upon 

Mr. Sharp's return to work on April 12, Mr. Couch stated that 

he discussed the matter with Mr. Sharp, and he explained the 

conversation which took place as follows (Tr. 67-68): 

A. Yeah. I asked him for an excuse because he 

had been in court. I told him it was a company 

policy to have an excuse. I also told him he'd 

lied to me, because he said he was going to 

court with the company, and he'd never done it. 

Q. What did he say, anything? 

A. He said, I don't have to have no excuse. 

That's what he said. 

Q. Did you ever take any action against him 

because of that? 

A. No, sir. 

Q. Did you ever threaten to discharge him 

because he didn't have an excuse? 

A. No, sir, I didn't. 

Q. Did you talk on the C.B. radio about the 

situation? 

A. No, sir. 

Q. Did you mention anything about a federal 

mine inspection to Mr. Sharp? 

A. No. They get them on the day shift ever 

now and then and they pull a night shift on me. 

That's the ones I would know about. 

Q. And you testified you didn't know about 

this mine inspection? 

A. No, sir. He comes on days. That's Mike 

Cornett's department on days. He takes care of 

all of that. 

390 
Q. Mike Cornett takes care of federal mine 

inspections that happen on day shift? 

A. That's right. 

Q. As far as you know, have you treated 

Mr. Sharp in this situation any differently 

than you would anybody else? 

A. No, sir. 

During his cross-examination of Mr. Couch, Mr. Sharp produced copies of an MSHA computer print-out showing the respondent's history of civil penalty assessments. This document 

reflects civil penalty assessments for 14 alleged violations 

which are included in 14 section 104(a) citations served on 

the respondent on April 12, 1988. Mr. Sharp also produced 

copies of the citations which reflect that they were served on 

Foreman Mike Cornett on the morning of April 12, 1988 (Tr. 

70-71). 

Mr. Couch denied any knowledge of the violations, and he 

denied that he accused Mr. Sharp of calling in the MSHA inspector who issued the citations, or that he had any knowledge 

that Mr. Sharp had in fact called in the inspector (Tr. 74-75). 

Mr. Couch also denied any knowledge of making any announcement 

over the C.B. radio that he would fire Mr. Sharp if he failed 

to present an excuse for his court appearance (Tr. 77). 

Mr. Couch denied that he ever accused Mr. Sharp of calling in MSHA, or that he ever threatened to fire him for not 

having an excuse for his court appearance. Mr. Couch stated 

that he advised Mr. Sharp that it was company policy to have 

an excuse for such an absence, but that Mr. Sharp never presented such an excuse. Although Mr. Sharp violated company 

policy for not presenting an excuse for his absence from work, 

Mr. Couch stated that he did not discipline Mr. Sharp because 

he purportedly filed a complaint with MSHA. Mr. Couch stated 

further that he simply reported the matter to M. C. Couch, the 

mine superintendent, and according to mine policy, any decision to discipline Mr. Sharp was within the discretion of the 

respondent (Tr. 81-84). 

Mr. Couch stated that the company policy concerning 

excuses for absences was in effect before he came to work for 

the respondent, and that Mr. Sharp was aware of it (Tr. 84-85). 

In response to further questions, Mr. Couch confirmed 

that he believed Mr. Sharp's failure to produce an excuse for 

391 
his absence from work on April 11, 1988, was an unexcused 

absence ~Tr. 86). Mr. Couch reiterated that Mr. Sharp had 

lied to him when he said that he would be in court against the 

respondent, and that he simply tu.rned the matter over to the 

mine superintendent. Mr. Couch reviewed the documents offered 

by Mr. Sharp with respect to his consumer complaint, and he 

confirmed that he had never previously seen the documents, and 

that Mr. Sharp never showed them to him or offered any explanation as to why he was not at work other than his statement 

that he was in court (Tr. 87-88). 

Marcus Couch, Jr., mine surface superintendent, stated 

that he has worked for the respondent for approximately 

5 years and that he is not related to Harlan Couch. Mr. Couch 

confirmed that he was aware of an MSHA inspection which took 

place on April 12, 1988, during which citations were issued, 

and he characterized the inspection as a routine quarterly 

mine inspection. He denied that mine management was "upset" 

with Mr. Sharp because of this inspection, and he also denied 

blaming Mr. Sharp for the inspection (Tr. 90-92). 

Mr. Couch confirmed that no adverse action was taken 

against Mr. Sharp for his unexcused absence of April 11, 1988, 

and that he did not treat the absence as unexcused because 

Mr. Sharp has previously filed complaints with MSHA's, or as a 

means of retaliating against him (Tr. 93). 

On cross-examination, Mr. Couch stated that Mr. Sharp has 

not been treated any differently from other employees with 

respect to the respondent's excused or unexcused leave policy. 

Mr. Couch stated further that employees other than Mr. Sharp 

have been "written up" for unexcused absences and absenteeism, 

and that company records will attest to this fact (Tr. 94-95). 

Mr. Couch explained the procedures for documenting such 

absences, and stated that other employees have in fact been 

cited for unexcused absences. He confirmed that after two 

unexcused absences, an employee is subject to discharge (Tr. 

97). 

Mr. Couch was shown copies of the documents produced by 

Mr. Sharp with respect to his consumer complaint and appearance at the hearing, and he stated that "this is the first 

time I've ever saw this" (Tr. 104). Mr. Couch confirmed that 

he would probably have accepted these documents as an excuse 

for Mr. Sharp's absence of April 11, 1988, but since Mr. Sharp 

did not present them or document his absence, his absence from 

work was treated as unexcused (Tr. 105). 

392 
Findings and Conclusions 

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 Cl) that he 

engaged in protected activity and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (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 (1981); Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation, 6 FMSHRC 1842 <1984); Secretary on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 

2510-2511 CNovemb~r 1981), rev'd on other grounds sub nom. 

Donovan v. Phelps Dodge Corp., 709 F.2d 86 CD.C. Cir. 1983). 

The operator may rebut the prima facie case by showing either 

that no protected activity occurred or that the adverse action 

was in no way motivated by protected activity. If an operator 

cannot rebut the prima facie case in this manner it may 

nevertheless affirmatively defend by proving that Cl) it was 

also motivated by the miner's unprotected activities alone. 

The operator bears the burden of proof with regard to the 

affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC 

1935 (1982). The ultimate burden of persuasion does not shift 

from the complainant. Robinette, supra. See also Baich v. 

FMSHRC, 719 F.2d 194 (6th Cir. 1983); and Donovan v. Stafford 

Construction Company, No. 83-1566 D.C. Cir. (April 20, 1984) 

(specifically-approving the Commission's Pasula-Robinette test). 

See also NLRB v. Transportation Management Corporation, ~- U.S. 

, 76 L.ed.2d 667 (1983), where the Supreme Court approved the 

NLRB's virtually identical analysis for discrimination cases 

arising under the National Labor ~elations Act. 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal motive may be established if 

the facts support a reasonable inference of discriminatory 

intent. Secretary on behalf of Chacon v. Phelps Dodge Corp., 

3 FMSHRC 2508, 2510-11 (November 1981), rev'd on other grounds 

sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 CD.C. Cir. 

1983); Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 

(June 1984). As the Eight Circuit analogously stated with 

regard to discrimination cases arising under the National 

Labor Relations Act in NLRB v. Melrose Processing Co., 

351 F.2d 693, 698 _(8th Cir. 1965): 

It would indeed be the unusual case in 

which the link between the discharge and the 

393 
[protected] activity could be supplied exclusively by direct evidence. Intent is subjective and in many cases the discrimination can 

be proven only by the use of circumstantial 

evidence. Furthermore, in analyzing the evidence, circumstantial or direct, the [NLRB] is 

free to draw any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a 

mine operator against a complaining miner include the following: knowledge by the operator of the miner's protected 

activities; hostility towards the miner because of his protected activity; coincidence in time between the protected 

activity and the adverse action complained of; and disparate 

treatment of the complaining miner by the operator. 

In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 

(June 1982), the Commission stated as follows: 

As we emphasized in Pasula, and recently 

re-emphasized in Chacon, the operator must 

prove that it would have disciplined the miner 

anyway for the unprotected activity alone. 

Ordinarily, an operator can attempt to demonstrate this by showing, for example, past 

discipline consistent with that meted out to 

the alleged discriminatee, the miner's unsatisfactory past work record, prior warnings to 

the miner, or personnel rules or practices 

forbidding the conduct in question. Our function is not to pass on the wisdom or fairness 

of such asserted business justifications, but 

rather only to determine whether they are 

credible and, if so, whether they would have 

motivated the particular operator as claimed. 

Protected Activity 

Section lOSCc)(l) prohibits a mine operator from discharging a miner, or otherwise discriminating against him for making 

safety complaints to MSHA or to mine management. That section 

also prohibits a mine operator from discriminating against a 

miner, or otherwise interfering with any of his statutory 

rights under the Act. A miner is protected against any retaliatory action by the respondent because of any safety complaints 

he may have made to MSHA or to mine management. He is also 

protected against retaliation for exercising his section 103(g) 

right to request an inspection of the mine by MSHA when he has 

reasonable grounds to believe that violations exist in the mine. 

394 
Further, I believe that section 105{c){l) is broad enough to 

protect a miner against retaliation for threatening to contact 

or inform mine enforcement agencies about perceived safety violations in the mine. 

Mr. Sharp's Complaint 

In the c~se at hand, Mr. Sharp alleges that his section 

foreman Harlan Couch harassed him on April 12, 1988, when he 

asked him to produce some proof of his absence from work on 

that day. Mr. Sharp claims that Mr. Couch had previously 

given him permission to be away from work, and that the 

request to provide proof of his whereabouts was motivated by 

Mr. couch's belief that he had called an MSHA inspector to 

the mine for an inspection which resulted in several citations being issued to the respondent. 

The MSHA Inspection of April 12, 1988 

The evidence establishes that the inspection in question 

took place during the day shift, and that the citations were 

issued to the day shift foreman and not to Mr. Harlan Couch. 

Mr. Couch denied any knowledge of the inspection when he 

confronted Mr. Sharp about his absence on April 12, and 

superintendent Marcus Couch confirmed that he considered the 

inspection to be routine and that he was not upset about it. 

He also confirmed that he had no reason to believe that 

Mr. Sharp initiated the inspection, and he denied that the 

inspection had anything to do with his decision to treat 

Mr. Sharp's absence as unexcused. Insofar as foreman Harlan 

Couch is concerned, the record establishes that he took no 

action against Mr. Sharp for the unexcused absence, and simply 

informed Marcus Couch that Mr. Sharp could not produce any 

excuse for his purported court appearance. 

Given the history of ongoing confrontations between 

Mr. Sharp and mine management, and Mr. Sharp's proclivity for 

filing discrimination claims, I have serious doubts that foreman Harlan Couch would directly accuse Mr. Sharp of calling in 

an MSHA inspector or openly announce over the mine C.B. radio 

that he would fire Mr. Sharp for causing the inspection which 

resulted in the issuance of the citations. With regard to 

this purported announcement, Mr. Sharp admitted that he did 

not personally hear Mr. Couch make the statement, and his own 

witness Ronnie Ball denied that he ever heard Mr. Couch make 

the statement. Further, Mr. Sharp produced no other witnesses 

or any evidence to support his allegation in this regard. 

395 
In view of the foregoing, I find no credible or probative 

evidence to support any conclusion that the MSHA inspection of 

April 12, played any role, either directly or indirectly, in 

the respondent's decision to treat Mr. Sharp's absence of 

April 11, 1988, as an unexcused absence. Further, even assuming that the respondent suspected Mr. Sharp of initiating the 

inspection, I find no credible or probative evidence to establish that the respondent's consideration of Mr. Sharp's 

absence as unexcused was made to retaliate against Mr. Sharp 

or to harass him for any protected activities. 

The Respondent's Leave Policy 

The respondent produced credible probative evidence with 

respect to its established absenteeism policy, including the 

requirement that employees must document or present excuses 

for all unexcused absences. Foreman Harlan Couch testified 

that the policy requiring employees to produce proof for an 

absence from work which may be considered unexcused has been 

in effect for over a year, that it was in effect when he came 

to work for the respondent, and that Mr. Sharp was aware of 

the policy. Mr. Sharp did not deny that he was aware of the 

policy, but claimed that it is not enforced against anyone 

but him. 

Superintendent Marcus Couch explained the respondent's 

leave policy, including the procedures requiring employees to 

document all absences which are considered as unexcused, and 

he confirmed that after two unexcused absences, an employee 

may be discharged. Mr. Couch also confirmed that other 

employees have been cited for unexcused absences, and that he 

treated Mr. Sharp no differently from other employees in concluding that his absence on April 11, was unexcused. Indeed, 

Mr. Couch confirmed that had Mr. Sharp produced or shown him 

the documents which he had in his possession with respect to 

his consumer complaint, he would have considered Mr. Sharp's 

absence as excused leave. However, since Mr. Sharp failed or 

refused to present this documentation, or to further explain 

his court appearance, and since he was unaware of these documents and saw them for the first time at the hearing, 

Mr. Couch confirmed that he considered Mr. Sharp's absence as 

unexcused and contrary to the respondent's leave policy. 

Having· viewed Harlan and Marcus Couch during the course 

of the hearing, I find them to be credible witnesses and I 

find no credible evidence to support any conclusion of any 

disparate treatment of Mr. Sharp. Mr. Sharp's contentions 

that the respondent's leave and absenteeism policy was not 

enforced against other employees, and that he was singled out 

396 
by the respondent, are rejected as unsupported by any credible 

or probative evidence. Although Mr. Sharp mentioned the names 

of several employees who he contended were allowed to miss 

work without excuses, he failed to produce any witnesses or 

other credible evidence to support his claim. 

Mr. Sharp's Absence of April 11, 1988 

The evidence establishes that on two occasions prior to 

April 11, Mr. Sharp informed his foreman Harlan Couch that he 

would be off work that day because he had to be "in court" in 

Lexington, and that Mr. Couch gave his tacit approval to 

Mr. Sharp when he replied "it would be fine." Mr. Couch testified that Mr. Sharp advised him that his court appearance was 

in connection with a legal action he filed against the respondent, and Mr. Sharp denied that he made such a statement to 

Mr. Couch. 

Harlan Couch further testified that when he learned on 

April 12, upon Mr. Sharp's return to work, that he had not 

been in Court in a case against the respondent, he concluded 

that Mr. Sharp had lied to him and he asked him to produce 

proof that he was in fact in court on April 11. When Mr. Sharp 

could not produce such proof, Mr. Couch reported the matter to 

mine superintendent Marcus Couch, and took no further action 

against Mr. Sharp. 

Mr. Sharp testified that his "court" appearance was in 

fact an appearance before the Better Business Bureau in 

Lexington in connection with a consumer complaint that he had 

filed against an automobile dealer who had failed to make 

certain repairs to an automobile which Mr. Sharp had purchased. 

Mr. Sharp produced copies of several documents concerning his 

appearance, including a copy of a notice of hearing dated 

April 5, 1988, instructing him to appear before an arbitrator 

for a hearing on his complaint, and a copy of the arbitrator's 

decision in Mr. Sharp's favor. 

Harlan and Marcus Couch both testified that they were 

unaware of the fact that Mr. Sharp's "court" appearance was in 

connection with his consumer complaint, and they confirmed 

that they had not previously seen the documentation produced 

by Mr. Sharp for the first time during his discrimination hearing of January 4, 1989. They also confirmed that Mr. Sharp 

had not previously offered any explanation or details concerning his purported "court" appearance. I find H~rlan and Marcus 

Couch's testimony to be credible, and it is corroborated by 

397 
Mr. Sharp himself who confirmed that he did not show the documents to Harlan Couch or off er any further explanation as to 

his whereabouts on April 11. 

The evidence establishes th~t Mr. Sharp's purported 

"court" appearance on April 11, was not in fact an appearance 

before a court of record, but rather, an appearance before an 

arbitrator in connection with a consumer complaint. I take 

note of the fact that the Better Business Bureau notice of 

hearing received by Mr. Sharp informing him to appear at the 

hearing on April 11, is dated April 5, a day after Mr. Sharp's 

first notification to Harlan Couch that he would be in Court 

on April 11. Although Mr. Sharp could not recall when he 

actually received notification of the hearing, at page 4 of 

his brief, he acknowledges that he was initially informed of 

the hearing by telephone on April 4. 

It seems clear to me from the documentation produced by 

Mr. Sharp that he was in fact at the hearing in Lexington on 

April 11, in connection with his consumer complaint. It is 

also clear that Mr. Sharp had at least two opportunities to 

show the April 5 Notice of Hearing to Harlan Couch. One 

opportunity was on March 9, when Mr. Sharp had the notice of 

hearing in his possession and reminded Mr. Couch that he would 

be in "court." A second opportunity presented itself on 

April 12, when Mr. Sharp returned to work and was confronted 

by Mr. Couch who asked him for an explanation as to his 

purported "court" appearance. 

Although Mr. Sharp may not have had any reason to show 

Harlan Couch the notice of hearing on April 9, when Mr. Couch 

informed him that his absence from work "would be fine," I 

find that Mr. Sharp's refusal on April 12, to show Mr. Couch 

the notice of hearing regarding his hearing appearance, or to 

.otherwise offer an explanation to Mr. Couch was inexcusable. 

Given the respondent's leave and absenteeism policy, 

Mr. Couch's doubts concerning Mr. Sharp's appearance in court, 

valid or otherwise, and the fact that Mr. Couch was 

Mr. Sharp's supervisor, I believe that Mr. Couch was entitled 

to some explanation, and that Mr. Sharp's refusal to provide 

proof of his whereabouts placed him at risK of being charged 

with an unexcused absence. Mr. Sharp's unreasonable refusal 

to explain his whereabouts to Mr. Couch obviously triggered 

management's decision to treat the absence as unexcused. 

I conclude that had Mr. Sharp shown Harlan Couch the hearing notice concerning his consumer complaint appearance, 

398 
Mr. Couch may not have had any legitimate reason for concluding that Mr. Sharp's absence from work was an unexcused 

absence. As a matter of fact, superintendent Marcus Couch, 

the individual who made the decision that Mr. Sharp's absence 

was unexcused, confirmed that had Mr. Sharp presented the documentation which he deliberately withheld and refused to supply, 

he would have treated Mr. Sharp's absence from work as excused. 

In view of the foregoing, I conclude and find that Harlan 

Couch's request of Mr. Sharp for some proof of his asserted 

court appearance was a legitimate and reasonable request, 

notwithstanding his previous approval to Mr. Sharp, and that 

the inquiry by Mr. Couch was not made to harass Mr. Sharp or 

to otherwise retaliate against him for any protected activity. 

I also conclude and find that the only action taken by Harlan 

Couch against Mr. Sharp was to report the matter to superintendent Marcus Couch, and that Harlan Couch's reporting of the 

matter was a legitimate and reasonable exercise of his supervisory authority. 

With regard to Marcus Couch's determination that 

Mr. Sharp's absence from work was unexcused, I conclude and 

find that given the fact that Mr. Sharp refused to provide an 

explanation which was readily in his possession and at his 

disposal, Mr. Couch's decision was a justifiable and reasonable exercise of his authority as the mine superintendent. I 

also conclude and find that Mr. Couch's determination was not 

made to harass Mr. Sharp or to otherwise retaliate against him 

for any protected activities. 

I further conclude and find that Mr. Sharp has failed to 

present any credible or probative evidence to support his 

claim of discrimination and that he has failed to establish a 

prima facie case. 

ORDER 

In view of the foregoing findings and conclusions, and on 

the basis of a preponderance of all of the credible testimony 

and evidence adduced in this case, I conclude and find that 

Mr. Sharp has failed to establish that the respondent has 

399 
discriminated against him or has otherwise harassed him or 

retaliated against him because of the exercise of any protected 

rights on his part. Accordingly, Mr. Sharp's complaint IS 

DISMISSED, and his dlaim~ for rel~ef ARE DENIED. 

4=~.~u~ Administrative Law Judge 

Distribution: 

Mr. Arnold Sharp, General Delivery, Bulan, KY 41722 

(Certified Mail) 

Edwin s. Hopson, Esq., Wyatt, Tarrant & Combs, 2600 Citizens 

Plaza, Louisville, KY 40202 (Certified Mail) 

/fb 

400 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRE'r ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

WILMOT MINING COMPANY, 

Respondent 

MAR 211989 

. . 

. . 

: . 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 85-47 

A.C. No. 33-02929-03505 

North Mine 

Appearances: Patrick M. Zohn, Esq., Office of the Soclicitor, 

U.S. Department of Labor, Cleveland OH, fo~ 

Petitioner~ 

Thomas G. Eddy, Esq., Eddy & Osterman, Pittsburgh, 

PA, for Respondent. 

Before: Judge Fauver 

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

Sixth Circuit reversed the assessment of a civil penalty of 

$2,000 for a violation of 30 C.F.R. § 77.403a(a) and remanded the 

case to the Commission for reconsideration of the penalty. The 

Commission remanded the matter to me on June 20, 1988. 

On July 5, 1988, the Court recalled its mandate pending the 

company's decision whether to file a petition for a writ of 

certiorari with the Supreme Court of the United States. 

On January 25, 1989, the Court, through its Deputy Clerk, 

advised the Commission that no application has been made for writ 

of certiorari. 

The matter is now before me on remand by the Commission for 

reconsideration of the penalty of $2,000. 

In my original decision, I found gross negligence by the 

company and imputed gross negligence of the deceased foreman, 

John D. Schrock, to the company. Since the court has reversed 

both findings, I will reassess the civil penalty assuming that 

the ROPS violation did not involve negligence by the company. 

401 
Considering all the criteria for a civil penalty under § 110 

Ci> of the Act, I find that a civil penalty of $200 is 

appropriate for this violation. 

ORDER 

Respondent shall pay a civil penalty of $200 within 30 days 

of this Decision. 

Distribution: 

~-=r,w~ William Fauver 

Administrative Law Judges 

Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department 

of Labor, 881 Federal Office Building, 1240 East Ninth Street, 

Cleveland, OH 44199 (Certified Mail) 

Thomas G. Eddy, Esq., Eddy & Osterman, 2600 Grant Building, 

Pittsburgh, PA 15219 (Certified Mail) 

iz 

402 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

SANGER ROCK & SAND, 

Respondent 

MAR 2 2 1989 

. . 

. 

. 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 88-44-M 

A.C. No. 04-01937-05503 

Docket No. WEST 88-45-M 

A.C. No. 04-01937-05502 

Docket No. WEST 88-116-M 

A.C. No. 04-01937-05504 

Sanger Pit & Mill 

DECISION 

Appearances: George B. O'Haver, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, California, 

for Petitioner; 

Mr. J. F. Baun, President, Sanger Rock and Sand, 

Sanger, California, 

pro se. 

Before: Judge Cetti 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et~' the "Act". The 

Secretary of Labor on behalf of the Mine Safety and Health 

Administration CMSHA), charges the operator of Sanger Rock and 

Sand with 7 violations of mandatory safety standards found in 30 

C.F.R., Part 56 and seeks civil penalty assessments for the 

alleged violations. 

Respondent filed a timely appeal contesting the violations 

on grounds petitioner lacked jurisdiction and raising additional 

issues of due process of law, the existence of a violation, and 

the amount of the penalty as to certain citations. 

Jurisdiction 

At the outset of the hearing respondent orally renewed its 

previously filed written motion to dismiss the citations on the 

grounds of lack of jurisdiction. It is respondent's contention 

that Sanger Rock and Sand a mine located in Sanger, Fresno 

County, California is located outside of the territorial or 

geographical jurisdiction of the United States. Respondent 

argues that there is no such thing as a jurisdiction without geo403 
graphical boundaries, that Federal jurisdiction is very limited 

and covers only mines and people located in Washington, D.C. or 

in a federal enclave within states, or in the territories or 

possessions. Respondent contends that all mines located in other 

areas, including Sanger Rock and Sand in Fresno County, 

California, is not subject to the jurisdiction of United States. 

Respondent's contention is rejected. It is contrary to well 

established prevailing law. 

Respondent's sand and gravel operation is a mine within the 

meaning of section 3(h)(l) of the Act. Its employees are engaged 

in extracting minerals, Crock and sand) from their natural 

deposits in nonliquid form and is therefore a "mine" as defined 

in section 3(h)(l) of the Act. Respondent admits that the 

products it excavates and mills are sold commercially within the 

State of California. In the performance of the work at the site 

inspected, respondent's employe.es handle, use, or otherwise work 

with machinery and equipment which is manufactured or purchased 

outside of the State of California. (Exhibit P-8). 

Section 4 of the Act provides as follows: 

"Each coal or other mine, the products of which enter 

commerce, or the operations or products of which affect 

commerce, and each operator of such mine and every miner 

in such mine, shall be subject to the provisions of this 

Act." 

Congress by its use of the phrase "which affect commerce" 

in Section 4 of the Act, indicates its intent to exercise the 

full reach of its constitutional authority under the commerce 

clause. See Brennan v. OSHRC, 492 F.2d 1027 (2nd Cir. 1974)~ 

U.S. v. Dye Construction Co., 510 F.2d ClOth Cir. 1975>1 Polish 

National Alliance v. NLRB, 322 U.S. 643 (1944) Godwin v. OSHRC, 

F.2d 1013 C9th Cir. 1976). 

Even though no evidence was presented to show that the products respondent produced for sale in California to contractors 

was or was not used solely intrastate, nevertheless it may 

reasonably be inf erred that even intrastate use of the gravel 

would have an affect upon the interstate market. The United 

States Supreme Court has ruled that a farmer growing wheat solely 

for his own needs affects interstate commerce. The Court stated 

that while the farmer's contribution to the demand for wheat may 

be insignificant by itself accumulative affect of all such 

production by others similarly situated is significant and has an 

impact on interstate commerce. Fry v. United States, 421 U.S. 

542, 547 (1975). 

404 
In response to petitioner's request for admissions 

respondent admitted that its employees "handle, use, or otherwise 

work with machinery and equipment which is manufactured or 

produced outside the State of California." (Exhibit P-8). It has 

been held that the use of equipment that has been moved in 

interstate commerce "affects commerce". See United States v. Dye 

Construction Co., 510 F.2d, 78, 82 (1975). 

The Mine Act as well as the Act's Legislative History 

clearly shows the Congressional determination that all mining 

related accidents and disease unduly burden and impede interstate 

commerce. Section 2(f) of the Act states: 

[T]he disruption of production and the loss of income to 

operators and miners as a result of coal or other mine 

accidents or occupationally caused diseases unduly impedes 

and burdens commerce. 

The United States Supreme Court in Donovan v. Dewey, 452 

U.S. 594, 602 (1981) stated "As an initial matter, it is 

undisputed that there is a substantial federal interest·in 

improving the health and safety conditions in the Nation's 

underground and surface mines. In enacting the statutes, 

congress was plainly aware that the mining industry is among the 

most hazardous in the country and that the poor health and safety 

record of this industry has significant dilatorius effects on 

interstate commerce." 

Respondent's operations clearly "affect commerce" within the 

meaning of section 4 of the Act. Congress is empowered under the 

commerce clause of the Federal Constitution to regulate even 

intrastate sales. See Wickard v. Filburn, 317 U.S. 111, 128, 

(1942). In a more recent case Andrus v. P-Burg Coal Co., Inc., 

644 F.2d 1231, 1232 (1981). The Court reiterated that Congress is 

empowered to regulate a mining operation that produces coal 

solely for intrastate sale. The Court adopted the District 

Court's determination that intrastate producers compete with 

interstate producer, and that intrastate sales have a cumulative 

effect on commerce. 

It is concluded that under prevailing law the operations of 

Sanger Rock & Sand are clearly subject to the provisions of the 

Act. 

Citation No. 3074995 

Citation No. 3074995 is a 104(a) citation alleging a 

violation of section 103(a) of the Act. The citation reads as 

follows: 

405 
J.F. Baun - Pres at this mine today interfered with, 

hindered and delay the inspection of the mine by refusing 

to cooperate when asked for records that the inspector was 

required to see. Upon further argument and calling the 

inspector a liar for the second time after being warned 

that he was interfering, hindering, and delaying the inspection, the inspection was stopped and this citation 

issued. 

Section 103(a} of the Act in relevant part provides as 

follows: 

"Authorized representatives of the Secretary ••• shall 

make frequent inspections and investigations in coal or 

other mines •••• In carrying out the requirements of this 

subsection, no advance notice of an inspection shall be 

provided ...• [and the authorized representatives] shall 

have a right of entry to, upon, or through any .•• mine." 

On August 14, 1987, Inspector Alvarez accompanied by trainee 

Inspector Henze arrived at Sanger Rock & Sand to complete their 

inspection which they started the day before. The mine 

inspectors needed to look at certain company records which they 

are required by law to verify when making a mine inspection. 

When they asked the foreman for the records, he indicated that 

they were kept in the office of Mr. Baun, the President of Sanger 

Rock & Sand. The inspectors as required by law wanted to look at 

a copy of the mine's legal ID, the accident reporting forms, the 

quarterly employment reports, and the grounding continuity 

records. They introduced themselves to Mr. Baun and told him why 

they were there. They explained the kind of records they needed 

to look at and asked him for them. Mr. Baun questioned the 

authenticity of their ID cards. He stated that anyone could 

manufacture the ID cards. He declined to act on their suggestion 

that he call the MSHA District Off ice or their supervisor to 

verify their identity as MSHA inspectors. When the inspector 

asked for certain records Mr. Baun pulled out a manila type 

folder, held it up, thumbed through it, and said "well the 

information is ok" and started to put the folder back away in his 

cabinet. When the inspector told him "that won't do", that he 

needed to "verify the report", Mr. Baun threw the folder at him 

across the desk. The folder fell off the desk and fell in a pile 

on the floor. Inspector Alvarez had to reach down and pick up 

the file and put it back together to look at it. The latest 

report in the file was dated 1981. 

MSHA Inspector Alvarez testified that half way through the 

inspection Mr. Baun got up and called him a "liar". The 

inspector then gave Mr. Baun this warning "We're here, we're 

being very polite to you and civil. But if you persist in 

406 
obstructing and hindering the inspection, I will be forced to 

call off the inspection, stop it, and I will cite you for 

hindering and interfering with the inspection." Mr. Baun seemed 

to calm down and sat down while the inspectors proceeded with the 

paperwork. However, when Inspector Alvarez told him that he was 

going to have to cite him for not having the required records on 

ground and continuity tests, Mr. Baun became quite upset and told 

Mr. Alvarez that he, "lied to him .twice". Mr. Alvarez then told 

Mr. Baun "I have had enough. The inspection is over." The 

inspector told Mr. Baun "I am going to cite you for interfering 

and hindering the inspection." The inspectors then went to their 

car and left. 

On cross examination Inspector Alvarez testified that the 

inspection was not completed at the time he felt compelled to 

stop the inspection. He still needed to have a closeout 

discussion on the citations issued since Mr. Baun had not gone 

with the inspector at any time during the inspection. The inspector needed to sit down and explain to Mr. Baun why the 

citations were issued and what his options were. The inspectors 

also wanted to make Mr. Baun aware of his 10 day conference 

rights. 

Inspector Alvarez testified that when he returned to 

respondent's premises on the 25th of August for the abatement 

inspection Mr. Baun and his employees were cooperative. 

I credit the testimony of Inspector Alvarez. Since Mr. Baun 

was quite upset and twice called the mine inspector a "liar", it 

was reasonable for the inspector to stop the inspection and leave 

Mr. Baun's office. MSHA inspectors are not required to subject 

themselves to harassment or verbal abuse in order to complete an 

inspection. See Secretary v. Calvin Black Enterprise, 7 FMSHRC 

1151 (August 22, 1985), at 1157; U.S. Steel Corp., v. Secretary 

of Labor, 6 FMSHRC 1423 (June 26, 1984). The violation of 

section 103(a) of the Act was established. Citation No. 3074995 

is affirmed. 

With respect to assessing the appropriate penalty there is 

undisputed evidence that Mr. Baun with some delay did make 

available to the mine inspector before they left all the records 

the inspector requested that were available at the premises inspected. The evidence also established that Mr. Baun and his 

employees were cooperative when the inspectors returned 10 days 

after the inspection to check on abatement. Taking this into 

consideration, along with all the statutory criteria set forth in 

section llO(i) of the Act, I find upon independent review and 

evaluation that $35.00 rather than the proposed $200 is the 

appropriate penalty for this violation under the facts and 

circumstances established at the hearing. 

407 
Due Process 

Sanger Rock and Sand contests Citation Nos. 3074991, 3074992 

and 3074993 on the ground that MSHA's review process under 30 

C.F.R. § 100.6 was a denial of due process of law and was merely 

a " • • . rubber stamp." 

Under 

conference 

Citations. 

within the 

conference 

30 C.F.R. § 100.6 all parties are allowed to request a 

with the appropriate MSHA District Manager to review 

Subsection (c) of this section provides that it is 

sole discretion of MSHA to grant a request for a 

and to determine the nature of the conference. 

Mr. Baun, respondent's president, was given the conference 

allowed by the regulation. His testimony shows that he discussed 

the merits of the citation with the District Manager until Mr. 

Baun believed it was "fruitless". 

Due process of law does not require the conference provided 

by 30 C.F.R. § 100.6. It is the hearing provided by the Federal 

Mine Safety and Health Review Commission under 29 C.F.R § 2700 et 

seq. which is the due process of law hearing required by the u.S:-

Constitution. The Act and the Commission regulations provide for 

a hearing before an Administrative Law Judge and review by the 

Commission that is fully in accord with constitutional due 

process of law requirements. See National Industrial Coal 

Operators' Association v. Klepp, 423 U.S. 400, 96 Sup. Court KT. 

809 (1976). 

Citation 3074810 

This citation alleges a violation of 30 C.F.R. § 56.12032 as 

follows: 

The junction box cover for the #2 primary feeder vibrator 

motor was missing. The junction box was located on the 

vibrator motor. Exposed wire nuts were in the junction box 

conducting 440 volts. The hazard was 8 ft above ground 

level. 

30 C.F.R. § 56.12032 provides as follows: 

Inspection and cover plates on electrical equipment and 

junction boxes shall be kept in place at all times except 

during testing or repairs. · 

Jaime Alvarez, Federal Mine Safety and Health inspector 

testified that he inspected the junction box for the No. 2 

primary feeder vibrator motor. The junction box did not have a 

cover. He observed 3 exposed wires that were capped off with a 

408 
screw type cap. The wires were insulated as they came into the 

junction box but were bare from a point where the insulation had 

been cut off to the edge of the cap that covered the ends of the 

bare wire. 

On cross examination the safety inspector testified that the 

uncovered junction box was not protected by location. Although 

the junction box was 8 feet above the ground it was only 4 feet 

above the level on which he observed an employee working. The 

employee was a hortizonal distance of 12 feet from the junction 

box and had easy access to the junction box. If an employee were 

to come in contact with tpe exposed wire it could easily result 

in a fatal electric shock. 

Mr. Baun testified that an employee using a ladder could 

intentionally contact the wires in the junction box but could not 

do so accidentally. 

Mr. Baun also reasoned that since the vibrators were not 

working there must have been no electrical power to the junction 

box and the switch that turns on the electricity to the junction 

box was located several hundred feet away. 

Asked why the junction box had no cover, Mr. Baun replied 

that normally that junction box was covered. He suggested that 

the cover may have "vibrated off" or someone may have been 

working on the vibrator. 

The evidence presented clearly established a 104(a) violation of 30 C.F.R. § 56.12032. The citation is affirmed. 

The Secretary proposed a $20 penalty which respondent did 

not contest. Upon independent review and evaluation I have 

considered the six statutory criteria set forth in section llO(i) 

of the Act and find that the $20 proposed penalty is the appropriate penalty for this violation. 

Citation 3074811 

This citation alleges a violation of 30 C.F.R. § 56.12008 

which mandates power wires and cables be insulated adequately 

where they pass into or out of electrical compartments. 

Mr. Alvarez testified that he inspected an electric sump 

pump motor located at the bottom of the secondary tunnel. the 

power cable was not bushed where the cable passes into the motor 

housing. The pump was sitting adjacent to a sump. It was near 

water and the discharge hose was connected. The power line plug 

was unhooked but was laying approximately two inches f rorn the 

409 
female receptacle for the power line. There was a hazard of the 

electric shock from coming into contact with shorted electricity. 

The wet area increased the hazard. 

Mr. Baun testified that the pump was a centrifugal water 

pump not a submersible pump. He stated that the pump was inoperable and was out of service at the time of the inspection. 

He did not know how long the pump had been inoperable. 

Mr. Baun placed in evidence an invoice showing that he 

purchased parts to repair that pump. The invoice was dated 

August 19, 1987, six days after the date the citation was issued. 

I credit the testimony of MSHA Inspector Alvarez and find 

that respondent violated the provision of 30 C.F.R. § 56.12008 as 

set forth in the citation. 

Respondent did not contest the amount of the Secretary's 

proposed $20 penalty. Upon independent review and evaluation, 

taking into consideration the six statutory penalty criteria set 

forth in section llO(i) of the Act, I find the appropriate 

penalty for this violation is the $20 penalty proposed by the 

Secretary. 

Citation No. 3074991 

This citation alleges a 104(a) violation of 30 C.F.R. 

§ 56.15004. The citation states: 

An employee was observed hitting the steel shell of the 

primary crusher bin with a double jack hammer (@ 10 lb) 

with a mushroom head on each end. This employee was not 

wearing any eye protection to prevent an injury to his eyes 

from a piece of metal from either the steel bin wall or the 

split steel heads on the double jack. 

30 C.F.R. § 56.15004 provides as follows: 

All persons shall wear safety glasses, goggles, or face 

shields or other suitable protective devices when in or 

around an area of a mine or plant where a hazard exists 

which could cause injury to unprotected eyes. 

Inspector Alvarez testified he observed an employee beating 

on the outside of steel shell of the No. 1 bin with a double jack 

hammer. The employee was not using safety glasses or any other 

eye protection to prevent flying objects such as a fragment of 

the hammer hitting him in the eye. Both heads of the jack hammer 

were mushroomed, showing that the steel on both ends of the head 

410 
had been fragmented due to the constant use of the hammer to beat 

on the steel side of the bin. The employee was called down and 

instructed in the use of safety glasses. The employee went to 

his car and took out and put on a pair of safety glasses. 

Mr. Baun testified that this was a new employee but there 

was no excuse for the employee not wearing his safety glasses. 

The employee had received the required safety training and had 

been given a copy of the company's safety rules which specifically require wearing safety glasses whenever there is a danger 

of getting anything in the eye. 

The violation of Citation No. 3074991 was established as 

alleged in the citation. The citation is affirmed. 

Respondent did not contest the amount of the Secretary's 

proposed $58 penalty. Upon independent evaluation, taking into 

consideration the six statutory penalty criteria set forth in 

section llO(i) of the Act, I find the appropriate penalty is the 

$58 penalty proposed by the Secretary. 

Citation No. 3074992 

This citation alleges a 104Ca) violation of 30 C.F.R. 

§ 56.14007. The citation states: 

The side of the guard on the self cleaning tail pulley on 

the crusher rock belt was found not in proper maintenance 

in that the center of the guard had been torn off thus 

leaving an open hole in the guard through which an 

employees hand, arm or foot, leg could easily contact the 

moving machine parts. 

Inspector Alvarez inspected the guard on the tail pulley of 

the crushed rock belt. It was a light expanded metal guard that 

was not properly maintained in that there was a hole in the 

middle of the expanded metal portion of the guard that was 8-9 

inches in circumference. It appeared to the inspector that the 

hole had been cut in the guard or at least partly cut and partly 

torn. He testified that there was moving machinery approximately 

3 or 4 inches from the opening in the guard. 

Mr. Baun testified that no hole had been cut in th~ guard. 

He explained that motorized equipment that cleaned up near the 

guard had ripped the side of the guard with its bucket. A flap 

of expanded metal may have been bent back but no hole was 

intentionally cut. 

The violation of 30 C.F.R. § 56.14007 for failure to 

properly maintain the tail pulley guard as alleged in Citation 

No. 3074992 was established. The citation is affirmed. 

411 
Respondent did not contest the amount of the Secretary's 

proposed $20 penalty. Upon independent evaluation, taking into 

consideration the six statutory penalty criteria set forth in 

section llO(i) of the Act, I find the appropriate penalty is a 

$20 penalty as proposed by the Secretary. 

Citation No. 3074993 

This citation alleges a 104Ca) violation of 30 C.F.R. 

§ 56.9022 which requires berms or guard on the outer bank of 

elevated roadways. 

Citation No. 3074993 alleges: 

The berm on the pit haulage road was not adequate (along 

large areas were nonexistant) to prevent one of the Euclid 

CR-35) 35 ton truck from going over the elevated edge of 

the road. The drop from the edge of the 30 ft wide road @ 

40 ft down into the adjacent pond. The berms were in need 

of repair for a distance of @ 200 yards on which there was 

2-way traffic. 

Inspector Alvarez testified that he observed an elevated pit 

haulage road that was approximately 30 feet wide. The road 

extended from the plant to the pit area, a distance of approximately three-quarters of a mile. On the day of the inspect'ion 

there were two 35 ton trucks using the road to haul the sand and 

gravel. The elevated portion of the road was approximately 

one-half mile long. The inspector stated that the area cited had 

no berm for approximately over 200 yards. The inspector measured 

a drop of 40 feet from the roadway down to an adjacent pond 

below. 

Mr. Baun testified that there had been a berm along this 

haulage road for many years. He surmised that the blade operator 

had bladed off some of the berm to improve the haul road. 

The violation of 30 C.F.R. S 56.9022 was established. The 

citation is affirmed. 

The Secretary proposed a $42 civil penalty. Upon independent review and evaluation taking into consideration the six 

criteria set forth in section llOCi> of the Act, I find the 

appropriate penalty is the $42 proposed by the Secretary. 

Citation No. 3074997 

This is a 104(a) citation alleging a violation of 30 C.F.R. 

56.9087 the citation reads as follows: 

412 
"A Komtsu-wa 600CC # -- 11 E-14) rubber tired front-end 

loader was observed backing up while loading trucks in the 

yard without an operable back-up alarm. There was no foot 

traffic in the area". 

30 C.F.R. § 56.9087 provides as follows: 

Heavy duty mobile equipment shall be provided with audible 

warning devices. When the operator of such equipment has 

an obstructed view to the rear, the equipment shall have 

either an automatic reverse signal alarm which is audible 

above the surrounding noise level or an observer to signal 

when it is safe to back up. 

The undisputed evidence established that the front-end 

loader had an obstructed view to the rear and was fitted with an 

appropriate audible warning device which was working at the 

beginning of the morning shift. Inspector Alvarez observed the 

loader for a few minutes while it loaded two trucks. The back up 

alarm was not working. The loader was stopped and the driver 

questioned. The driver stated the back up alarm was working that 

morning when he began his work shift. He explained that 

sometimes the .shock resulting from the bouncing of the loader 

causes the wires to the back up alarm to break. The driver , 

stopped the work and took the loader to the shop where it was 

immediately repaired. 

Respondent contends that since the loader's back up alarm 

was repaired immediately when discovered to be inoperative and 

this auditory warning device was working when the shift began, 

that there was no violation of § 56.9087. Respondent's contention must be rejected. The view to the rear of the front-end 

loader was obstructed and the backup alarm was not operative at 

the time of the inspection. The violation of 30 C.F.R. § 56.9087 

was est~blished. The citation is affirmed. 

The respondent did not contest the Secretary's proposed 

$20.00 penalty for this violation. Upon independent review and 

evaluation, taking into consideration the six statutory criteria 

set forth in section llOCi> of the Act and the fact there was no 

foot traffic in the area and the fact that the alarm was working 

at the beginning of the shift, I find that the Secretary's 

proposed $20.00 is the appropriate penalty for this violation. 

Conclusion 

On the basis of the foregoing findings and conclusions it is 

found that Sanger Rock and Sand is subject to the provisions of 

the Act, and that respondent has been accorded due process of 

law, and this Commission and its undersigned judge have juris413 
diction to decide this matter. All the citations are affirmed. 

Taking into consideration the statutory criteria set forth in 

section llO(i) of the Act, I conclude that the following civil 

penalty assessments are reasonable and appropriate for the 

violations which have been established. 

Citation 

3074810 

3074811 

3074991 

3074992 

3074993 

3074995 

3074997 

Violation 

30 CFR § 56.12032 

30 CFR § 56.12008 

30 CFR § 56.15004 

30 CFR § 56.14007 

30 CFR § 56.9022 

Act Sec. l03(a) 

30 CFR § 56.9087 

ORDER 

Amount 

$ 20.00 

20.00 

58.00 

20.00 

42.00 

35.00 

. 20. 00 

$215.00 

The respondent is directed to pay the civil penalties 

assessed in these proceedings within thirty (30} days of the date 

of these decisions. Upon receipt of payment, these proceedings 

are dismissed . 

Augus F. Cett1 . V~· . 

Admi istrative Law Judge 

Distribution: 

George B. O'Haver, Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson Street, P.O. Box 3495, San Francisco, CA 

94119-3495 (Certified Mail) 

Mr. J. F. Baun, President, Sanger Rock and Sand, 17125 E. Kings 

Canyon Road, Sanger, CA 93657 (Certified Mail) 

/bls 

414 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OLD BEN COAL COMPANY, 

Respondent 

OLD BEN COAL COMPANY, 

Respondent 

v. 

SECRE'rARY OF LABOR, 

MINE SAFETY AND HEALTa 

ADMINISTRATION (MSUA>; 

Respondent 

MAR 2 2 1989· 

. . 

. . 

. . 

. . 

: 

. . 

. . 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 88-105 

A.C. No. 11-02392-03757 

Mine No. 25 

CONTEST PROCEEDINGS 

Docket No. LAKE 88-81-R 

Order No. 3031512; 3/4/88 

Docket No. LAKE 88-82-R 

Citation No. 3031513, 3/4/88 

Mine No. 25 

Mine ID 11-02392 

Appearances: Miguel J. Carmona, Esq., Office of the Solicitor, 

U.S. Department of Labor, for the Secretary of 

Labor; 

Bronius K. Taoras, Esq., for Old Ben Coal Company. 

Before: Judge Fauver 

The Secretary of Labor seeks a civil penalty for an alleged 

violation of a safety standard, under § llO(a) of the Federal 

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

operator seeks to vacate the underlying citation and withdrawal 

order. 

The cases were consolidated and called for hearing on 

February 14, 1989, at St. Louis, Mi~souri. After the 

government's mine inspector testified and documentary evidence 

was received, a discussion off the reaord led to a motion by the 

parties to approve a disposition of the cases 1) permitting the 

government to vacate the citation and withdrawal order and 2) 

dismissing all the cases. 

This Decision confirms my bench decision granting the 

parties' motion, for the reasons stated on the record. 

415 
ORDER 

WHEREFORE IT IS ORDERED that the Secretary of Labor may 

vacate the citation and withdrawal order and based upon such 

actions, the above three cases are DISMISSED. 

tV~ 7-'4uvtM- William Fauver 

Administrative Law Judge 

Distibution: 

Bronius K. Taoras, Esq., Old Ben Coal Company, 200 Public Square, 

7-6617-D, Cleveland, OH 44114 (Certified Mail) 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department 

of Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified 

Mail) 

iz 

416 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

March 20, 1989 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

on behalf of 

WILLIE C. JONES, 

Applicant 

v. 

REYNOLDS METAL COMPANY 

INCORPORATED, 

Respondent 

Docket No. CENT 89-62-DM 

Case· No. MD 89-21 

Mill I.E. No. 4J.-00906 

ORDER OF TEMPORARY REINSTATEMENT 

Pursuant to Commission R,ule 44, 29. C.F.R. § 2700.44, and 

upon the Motion Withdrawing Request for Hearing, the Secretary's 

Application for Temporary Reinstatment on behalf of Willie c. Jones 

has been reviewed. Upon such review I have determined that the 

miner's complaint is not frivolously· brought. ~Accordingly it 

is ORDERED that Willie c. Jones be temporaril reinstated 

immediately .at the same wage r te d grade he had prio~ to 

termination. · 

~ 

\ 

lie I 

Adminjl tra 

(.7 Q3 J \ 56-6261 I 

Distribution: \ 

Lisa Gray, Esq., Office of the Solicl.tor, U.S. Department of Labor 

4015 Wilson Boulevard, Room 516.', Arlington, VA 22203 (Certified 

Mail) 

Jean W. Cunningham, Esq., Patrick R. Laden, Esq., Reynolds Metal 

Company, 6601 w. Broad STreet, Richmond, VA 23261-7003 

(Certified Mail) 

nt 

417 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAR 2 4 1989 

SECRE'rARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AMAX POTASH CORPORATION, 

Respondent 

. . 

. . 

. . 

Docket No. CENT 87-72-M 

A.C. No. 29-00174-05537 

Amax Mine & Mill 

DECISION 

Appearances: Rebecca A. Siegel, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, 

for Petitioner; 

Charles c. High, Jr., Esq., Kemp, Smith, Duncan & 

Hammond, El Paso, Texas and James L. Dow, Esq., 

Dow and Williams, Carlsbad, New Mexico, 

for Respondent. 

Before: Judge Lasher 

This matter arises under Section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. Section 820(a) (herein 

the Act). Petitioner seeks assessment of a penalty ($700) for an 

alleged violation cited and described in a "Citation/Order" l; 

dated February 12, 1987, issued under the authority of Sections 

104(a) and 107Ca) of the Act, respectively, and which specifically charged Respondent (herein Amax) with an infraction of 30 

C.F.R. 57.3200 (which appears in Subpart B of the codified 

regulations entitled "Ground Control", under the subparagraph 

pertaining to "Scaling and support-Surface and Underground" and 

which itself is headed "Correction of Hazardous conditions"), to 

wit: 

"Ground conditions that create 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 impeded unauthorized entry." 

l/ On line 12 of this form where the "type of action" is to be 

specified, the issuing Inspector designated his action to be an 

"Order" only --- the "Citation" box was left blank. 

418 
I note initially that 57.3200, in its essential language thrust, 

is nearly identical to the provision of 30 C.F.R. which may have 

been in effect in February, 1987, i.e. Section 57.3022, which 

provides: "Loose ground shall be taken down or adequately 

supported before any other work is done." Section 3022 has been 

the subject of specific analysis by this Commission in its 

landmark decision in Secretary v. Amax Chemical Company, 8 FMSHRC 

1146 (1986). Any such question is found moot since it was not 

raised at hearing or in briefs. 

The alleged violative conditions were described in Section 8 

of the Withdrawal Order as follows: 

Miners were observed in the 7 West Mains pillaring section 

making a scheduled belt-line and power move in preparation 

for further continuous mining of the next rows of pillars. 

After inspecting most of the area where miners were present 

it was determined by this inspector that an imminent danger 

condition existed by reason of Cpra,ctice) a failure of the 

operator to take down or support much loose and drummy top 

as detected throughout this area 11 bef ore 11 effecting the 

belt-line and power move that exposed this crew to the 

following (conditions): 

A front-end loader was observed traveling under an area of 

Loose and drummy top that measured about 7 feet wide by 4 

to 5 feet long by 3 to 10 inches thick with visible 

separation and located in the southeast corner of the 180/6 

intersection adjacent to the belt-line. A front-end loader 

and miners were observed traveling under an area of loose 

top located over the southeast corner of the 185/6 intersection and extending about 10 feet east along the beltline. After this area was posted off with warning signs 

the same front-end loader again traveled under this loose 

and drummy top disregarding the signs. 

An area of loose and drummy top was detected in the main 

travelway, 5 entry, along the east perimeter of a cut into 

the back at the 182 intersection. The loose top was about 

4 to 5 feet long by about 10 to 12 inches thick and extended 

across the width of the intersection. 

A loose and drummy area of top was detected in the 185 break 

near its intersection with 5 entry along the west rib line 

where a front-end loader had traveled. 

Loose and drummy top was detected in the 186 break and 7 

entry along the southwest corner of the pillar over the 

access to the operators cab of a parked shuttle car. 

419 
As other areas of loose and drummy top, unsupported, were 

found it became apparent that little effort had been put 

forth to secure bad top before using these travelways and 

accesses to effect the move. Consequently, miners were 

withdrawn from the area (180 break to the pillaring face 

along the 5, 6, & 7 entries). 

On a five-level "gravity" scale provided on the face of the 

Order, the Order was marked "Reasonably Likely". The Order also 

indicated that the violation charged was "significant and 

substantial". 

Amax contends that the violation charged did not occur, that 

the ground (roof) conditions described in the Order did not 

create a hazard, that the allegedly violative conditions did not 

constitute- or cause- an imminent danger, and that any alleged 

violation was not "significant and substantial". Respondent Amax 

also makes the contention that a drummy sound obtained by 

sounding the roof in its potash mine does not necessarily 

indicate a hazard, i.e., the danger of a roof fall. 

Having considered the transcript of testimony, exhibits, 

and the briefs submitted by the parties, the position of 

Petitioner is found supported in the record and meritorious. 

Discussion of Evidence and Findings. 

On February 12, 1987 Lawrence R. Haynes, a Metal-Nonmetal 

Mine Inspector for MSHA, ~/ while conducting an inspection of the 

mine, issued the subject Citation/Order CT. 69). He was accompanied on this inspection by David Tackett, Respondent's 

safety supervisor, and Bruce Yates, an electrician CT. 257, 279). 

2/ Amax attempted to impeach Inspector Haynes, who has been with 

MSHA 9 1/2 years, on the basis that he lacked sufficient 

experience in and knowledge of potash mines to determine and give 

opinion evidence as to the condition of the roof (ground) in the 

subject mine. Having carefully considered the record made in 

this connection, I conclude that the evidence of Inspector Haynes 

is not subject to rejection, nor should the weight to be given it 

be detracted from. The Inspector has approximately 16 years 

mining experience, and has inspected mines in the so-called 

Potash Basin wherein the subject mine is situated since the 

latter part of 1984. As the Inspector pointed out, his prior 

experience in other types of mining has some overall value in its 

contribution to this general core of information. Further, his 

opinion was supported by Supervisory Inspector Sidney Kirk who 

also testified and who has extensive background in potash mining 

and in the particular geographic area involved here. 

420 
On February 12, 1987, at point (area) "A" '!._! as depicted on 

Joint Exhibit 2, the conditions extant which led Inspector Haynes 

to conclude their was "loose" roof or ground, were described by 

him as follows: 

"A. Well there were two things that came into play there. 

The first one, the most obvious, was seeing that section of 

roof hanging down diagonally away from the roof and hanging 

down far enough to where it was about three inches at its 

widest point, wide enough where I could have stuck my elbow 

in it. Secondly, by sounding the perimeter of that particular slab to gain an indication of the size of the loose 

material in the roof." CT. 74-75). 

According to the Inspector the piece of roof that was 

hanging down was 3 inches thick at its narrowest and ran to 10 

inches thick and the area at Point "A" which he cited was 4 feet 

by 5 feet in size CT. 75, 79, 192). 

The areas in which Inspector Haynes determined there existed 

hazardous or loose ground were marked and are depicted on Joint 

Ex. 2, at Points marked thereon as "A", "B", "C", "D", and "E" 

CT. 70, 72-73, 319-321, 325). 

The Inspector's description of Point "A" (referred to in 

Joint Ex. 2) in the Citation/Order has been set forth above. His 

descriptions of points "B" (T. 204), "C", "D", and "E" CT. 197) 

are set forth below: 

B. "An area of loose and drummy top was detected in the main 

travelway, 5 entry, along the east perimeter of a cut into 

the back at the 182 intersection. The loose top was about 

4 to 5 feet long by about 10 to 12 inches thick and extended 

across the width of the intersection." 

C. "A loose and drummy area of top was detected in the 185 

break near its intersection with 5 entry along the west rib 

line where a front-end loader had traveled." 

D. "Loose and drummy top was detected in the 186 break and 7 

entry along the southwe.st corner of the pillar over the 

access to the operator cabs of a parked shuttle car." 

E. "A front-end loader and miners were observed traveling 

under an area of loose top located over the southeast corner 

of the 185/6 intersection and extending about 10 feet east 

3/ The alleged condition at point "A" was described in the 

Citation/Order as follows: 

"A front-end loader was observed traveling under an area of loose 

and drummy top that measured about 7 feet wide by 4 to 5 feet 

long by 3 to 10 inches thick with visible separation and located 

in the southeast corner of the 180/6 intersection adjacent to the 

belt-line." 

421 
along the belt-line. After this area was posted off with 

warning signs the same front-end loader again traveled under 

this loose and drummy top disregarding the signs." 

At the time of the subject inspection, Amax was in the 

"retreat" mode of mining, was retreating from the western end of 

7 West Mains toward the shaft and was removing (mining) the 

pillars which had been left during the initial development to 

support the roof CT. 60-65; Joint Ex. l; T. 392-396, 416-419). 

The actual mining was to be accomplished by two continuous miners 

CT. 65, 401, 433-434). 

Inspector Haynes was of the opinion based on his 

observations that due to the mode of retreat mining employed 

there was weight-shifting rolling over into the specific areas 

where he observed the violative conditions CT. 104-105, 215, 

216-218, 221-226). There is a greater likelihood of loose ground 

(roof) falling where there is a weight shift into that area CT. 

106-108, 110). 

Inspector Haynes further described the mining process at the 

time as follows: 

"Along the north and south of these 7 West Mains, there 

were still areas where there might have been a little bit 

of solid ground, virgin ground, to be mined into and 

developed out and then pillared anyway to be mined. There 

were also old, first mine, or already developed sections 

where there was ore in the pillars that could also be 

pillared or --. And the 7 West Mains themselves, I'm not 

sure how many pillars wide it averaged, you know, from 

beginning to end; but the idea was, and this was the 

explanation given to me by Danny (Desai) was to narrow the 

7 West Mains, and whatever material was available in the 

way of other pillars on the side, down to approximately 10 

pillars wide." 

xxx xxx xxx xxx 

Barring any break down of equipment or anything that might 

take place to hamper a regular pulling of these pillars, 

or mining of these pillars, the two continuous miners were 

to begin at the far pillar on each side of the middle of 

the mains; pull that pillar, move to the next pillar, moving 

toward the center of the mains .•• and continue on; and 

just progress in that fashion." 

Inspector Haynes, who used a metal hammer to sound the roof 

at the various locations cited CT. 78), testified generally that 

beating on the roof with any solid object would normally give an 

indication whether there are any separations above the immediate 

422 
roof; that a "fairly good, high ring usually indicates solid 

material" and that a "hollow, or kind of a dull or drummy sound 

indicates a separation" (T. 75, 76). This was confirmed by MSHA 

Supervisory Mine Inspector Sidney Kirk who testified that if a 

roof sounds drummy it indicates a separation of strata requiring 

something "to be done" (T. 427-428), meaning "its to be supported 

or taken down" ( T. 428, 432}. 

Inspector Haynes gave this explanation concerning the 

meaning of such a separation: 

"Any ground, including this potash out here, has a certain 

ability to hold itself up without ever falling, forever and 

ever. However, when a void is opened up, it looses some of 

that strength and ability to hold its own self up. 

Normally, at the stress points where's there's going to be 

weight pulling down and away from more competent roof head 

of it, the weight alone can cause the immediate beam of 

salt above this void to sag down and actually separate from 

the next beam. Again, that would normally be at a mud seam 

or a seam of this carnallite. Once that separation has 

occurred, that is the separation I'm referring to that can 

be detected by sounding the ground, by beating on it and 

listening for that hollow, drummy sound. Once that drummy 

sound is detected, again, the separation, you can get pretty 

good indication of its parameters by sounding out away from 

the drummiest point to aid and determine the size of ground 

below that separation." (T. 77). 

Inspector Haynes did not actually observe any miners or 

mining activity at or under Point "A". Nevertheless, there was 

tire-track evidence that a front-end loader had been in this area 

CT. 87). Had the loader, which the Inspector actually observed, 

worked under Point "A", it is probable that the miner operating 

the same would not have been directly under the area of loose 

roof (T. 87. 88. 194). There were roof bolts in the vicinity of 

Point "A", but not on the portion that was hanging loose CT. 89). 

Because there was loose roof which was unsupported, the 

Inspector considered this area to be hazardous since there 

existed the potential of the roof falling which could "easily" 

have resulted in a fatality had a person been under it at the 

time of the fall CT. 89, 181, 193). 

As with Point "A", Inspector Haynes testified that there 

were no bolts holding up the other 4 areas of actual loose roof 

he found to exist and designated as points "B", "C", "D" and "E" 

on Joint Exhibit 2 CT. 94, 103, 185, 195-198, 206, 212, 214 222, 

224, 230). He made his determinations of loose roof <ground) as 

to all five points by sounding CT. 198, 223-224). In addition, 

423 
as to Points A, B, C, D, and E, he visually observed a separation 

or sloughing of the roof material at the time of his inspection 

CT. 75, 96, 103, 104-107, 114-116, 198, 199, 207-210, 212, 214, 

379). The separation at Point "B" was relatively slight CT. 

207-210). The Inspector considered Cl) points "A" through "E" to 

be hazardous because of loose ground CT. 181), C2) that the 

hazard of falling ground, should such occur, would "definitely" 

result in a fatal injury, and (3) that at that point in time when 

he determined imminency, "it was highly likely, not just reasonable" that the hazard could occur CT. 145-149). I find no 

probative or reliable basis in this record not to accept this 

determination. 

At the time of his inspection, the Inspector himself did not 

attempt to bar down any of the loose ground at points A, B, C, D, 

or E CT. 138, 189-190) for two reasons, first, that MSHA would 

not allow him to, and secondly, because it would have been too 

dangerous CT. 139, 218). In the vicinity of Area "E" (which had 

a visible separation but not as bad as at Point "A"), the Inspector observed two signs which said "Keep out, Bad Top" CT. 

198-199). At area "E" the Inspector observed a front-end loader 

operator disregard the signs and drive under the hazardous area 

CT. 115, 199-204). At area "D", Inspector Haynes observes 

shuttle cars andhe testified that to gain access to the cab of a 

shuttle car, a person would have been required to pass "directly 

underneath the. loose portion of ground" CT. 102-103). 

The Inspector did not see anyone attempt to bar down any of 

the subject areas CT. 190). 

It was Inspector Haynes's opinion that where an area of roof 

(ground) is sounded and is drummy, even if it is not subject to 

be being barred down by a scaling bar, the hazard of a roof fall 

exists even though such hazard is not immediate. Thus, he 

testified: 

"Q. Well, if you try to bar it down and you can't at that 

moment it's not a fall hazard, right? 

A. It is a fall hazard if it's not going to be supported. 

At some point in time, if it's left like that, it's going. 

to fall. Eventually it's going to fall." CT. 189). 

Respondent's own training program for employees (Ex. P-2, 

pg. 10, T. 286-289, 299) indicates that a drummy sound from the 

roof "usually", but not always, indicates a "separated or loose 

condition ••• " In instances where a hollow or drummy sound is . 

given off as the bar is struck against the top, Respondent's 

Safety· Supervisor conceded that the word "usually" used in its 

training Program for employees (Ex. P-2, page 10) means that such 

hollow or drummy sound indicates "more often than not" that a 

"separated or loose condition exists in the overlying strata or 

roof." (Tr. 301). In such instances, Respondent's employees are 

424 
to either Cl) bar the area down or C2) bolt it as a precautionary 

measure CT. 302). Respondent's safety supervisor also conceded 

that at area "E" there was a "loose" top, the size of which 

ranged from basketball size to 2 feet by 2 feet (T. 295-296). 

Although Inspector Haynes testified that he personally did 

not attempt to bar down any of the cited areas, Respondent established that Bruce Yates, a member of the inspection party, 

attempted during the inspection to bar down the areas designated 

"A" and "E" on Joint Exhibit 2 CT. 260-268, 281-285). Asked as 

to the "success" of the attempts to bar down these two areas, 

David Tackett, Respondent's safety supervisor, testified: 

"A. Not totally. Most of the time, when we made the 

attempt, small pieces would crumble off the edges where 

we would try to bar down. 

Q. Was that potash ore that you were breaking with a 

scaling bar? 

A. Right. 

Q. Okay. And how large of pieces were breaking off? 

A. Anywhere from softball size to, maybe, football size." 

CT. 283). 

Mr. Tackett also testified that he observed nothing that he 

could "visually see" during the inspection walkaround that 

indicated that "something was going to fall before it could have 

been taken care of in the normal course of mining" CT. 285). 

Although Respondent's witnesses indicated there was bolting 

in the vicinity of the five subject areas CT. 321) cited by the 

Inspector, that visible cracks were common and not evidence of 

looseness, and that there were no hazards, such evidence was 

almost entirely broadly stated CT. 301, 326-328, 332-336, 340, 

341. 345, 348-350) and not specific 4/ enough in terms of 

numbers, distances, etc. to enable determination whether Cl) the 

bolting present would have negated or lessened the hazards 

detected by Inspector Haynes, C2) the cracks observed by the 

Inspector were of no consequence, or C3) that the five cited 

areas were not hazardous. 

Suresh Desai, Respondent's Production Superintendent, 

conceded that if an area is drurnmy and when scaled down pieces 

!/ The testimony of Respondent's witness, Antonio Campos, was 

particularly uncertain and self-contradictory. He acknowledged, 

however, that the "company" taught that drurnminess can mean 

looseness in the roof CT. 247-248). 

425 
come down from the separation, such is a "loose roof" area {T. 

383-384). He also indicated that if an area is drummy but can't 

be barred down, further inspection, including further sounding is 

required CT. 384) to determine whether further bolting was 

necessary CT. 384-385). Mr. Desai also conceded that whether a 

roof bolt was providing some support would involve consideration 

of various factors, including the "quality" of material being 

supported, whether there was drumminess around a separation, 

whether or not the area could be scaled down, and whether or not 

air could get in and affect the strata CT. 408-409). 

Mr. Desai, who examined the 5 cited areas after Inspector 

issued the withdrawal order on February 12, 1987, was of the 

opinion that there were no hazards at Points "A", "B", "C" and 

"E". He did not recall seeing Point "D". 

Mr. Desai acknowledged that there was a separation (crack) 

at Point "A" CT. 326-328) and that separations indicate that 

there is less adhesion of the roof CT. 380). He would not 

concede, on cross-examination, however that such reduced adhesion 

would "necessarily" increase the likelihood of the roof's falling 

{T. 380), explaining: 

"A. Why? Because you have to look at the separation, if 

the bolts installed or any precautionary measures are taken 

in terms of supporting the area with the remnant pillars 

or the bolts or could be a 60 x 60 pillar, which would 

support the area. so you have to use your own judgment." 

CT. 380-381). 

Respondent's Safety Supervisor, Tackett, conceded that there 

was loose top at Point "E" CT. 295). Respondent's witness, Bruce 

Yates, an electrician, as above noted, was a member of the 

inspection party. He conceded that there was a "crack" at Point 

"B", stating" ••• I know we didn't try to bar that one down 

because it (was) so thick and there would be no way to pull 

something down that heavy I would think" {T. 261). 5/ 

Legal Precedents and Conclusions 

The safety standard involved here imposes the continuing 

duty on the mine operator to examine ground conditions in its 

potash mine and to take down or adequately support any loose 

ground. Secretary v. Amax Chemical Corporation, supra. In that 

case, the Federal Mine Safety and Health Review Commission 

5/ Mr. Yates' memory of events was not particularly clear <259, 

260, 262). 

426 
rejected any per ~ rule equating drumminess (detected in 

sounding the roof) with "loose" ground, stating "The result of a 

sounding test is an important factor, but is not necessarily 

dispositive." The Commission enumerated other factors to be 

considered in making a "loose ground" determination: 

"The size of the drummy area and other possible explanations 

for the drumminess must also be considered. Visible 

fractures, sloughed material, "popping" and "snapping" 

sounds in the ground, the presence, if any, of roof support, 

and the operating experience of the mine or any of its 

particular areas, are also relevant factors to be considered." 

On the record in this matter, the only plausible explanation 

for the drumminess detected is separation of the strata. While 

there was bolting in the vicinity of the 5 areas (points) 

described by Inspector Haynes in the Citation/Order, there was no 

bolting in the drummy areas themselves. With respect to the size 

of the areas involved, all were sufficient in weight to have 

caused a fatality, i.e., 200 pounds to two tons, had a fall 

occurred. In addition, at all five points, visible separations, 

cracks of sloughing were detected. This record is relatively ~land as to factors of operating experience, past or current, 

which would materially affect the determination of whether a 

hazard existed, or whether such was or wasn't an imminent danger. 

As noted previously, herein, Respondent's miner training program 

provides that a drummy sound usually, but not always, indicates a 

separated or loose roof condition. 

In summary, the evidence indicates that sounding at all five 

cited locations produced drumminess, there was no bolting or 

evidence of other support inside the actual drummy areas, the 

size of the drummy areas was sufficient to cause fatalities, and 

visible separations, etc., were present. In addition, the record 

demonstrates varying degrees of exposure of miners to the danger 

of a roof (ground) fall CT. 87-89, 94, 98, 102-103, 114-115, 217). 

Inspector Kirk pointed out that these areas had not been 

barricaded or dangered off CT. 440-441). Accordingly, it is 

concluded that, in terms of the standard, ground conditions 

existed on February 12, 1987, that created a hazard to persons 

that were not taken down or supported before work or travel was 

permitted in the affected areas. This constitutes the violation 

as charged in the Citation/Order. 

Imminent Danger and "Significant and Substantial" Considerations. 

Inspector Haynes testified that he determined an imminent 

danger existed on February 12, 1987, because there was a 

427 
"potential for fall of ground", meaning a fall of the roof CT. 

69, 70, 89, 122-127). In terms of the immediacy of the threat, 

Inspector Haynes gave this testimony: 

"Q. Could and would that -- or would that reasonably 

be likely to happen if you had permitted AMAX to continue 

their operations without first stopping and withdrawing 

the miners and correcting this condition? 

A. Yes. As a matter of fact, it was, in my estimation, 

highly likely that it was going to happen." 

CT. 140) . 

In addition to the size of the affected areas (the potential 

weight of a ground fall), and the exposure of miners thereto, 

Inspector Haynes also indicated that his observation that there 

was a weight shift occurring which Respondent was not staying 

ahead of led to his determination that an imminent danger existed 

CT. 122-128). In this connection, the Inspector pointed out that 

a roof bolting machine had been out of operation CT. 126-127). 

It is noted that Supervisory Inspector Kirk confirmed Inspector 

Haynes' opinion that Respondent was not staying ahead of the 

weight shift CT. 217). The likelihood of fatal injuries to 

miners resulting from a fall ~/ has previously been discussed. 

Although Inspector Kirk did not personally observe the cited 

conditions on February 12, 1987, he agreed with Inspector Haynes 

that an imminent danger existed which was caused by the hazards 

described in the Citation/Order CT. 426-427, 439-440). 

The term "imminent danger" is found in both the Federal Coal 

Mine Health and Safety Act of 1969 and the Amendments thereto 

which comprise the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et seq., and the definition thereof currently found 

in section 3(j) of the 1977 Act is for all intents and purposes 

identical in both Acts, to wit: 

"the existence of any condition or practice in a coal or 

other mine 21 which could reasonably be expected to cause 

6/ The Federal Mine Safety and Health Review Commission itself 

pointed out in Secretary v. Halfway, Inc., 8 FMSHRC 8, at p. 13 

(1986): "Our decisions have stressed the fact that roof falls 

remain the leading cause of death in underground mines". 

7/ By virtue of Section 102Cb)(4) of the 1977 Mine Act the 

phrase "or other" was added after the work "coal" to expand the 

Act's coverage to all mines. 

428 
death or serious physical harm before such condition or 

practice can be abated." (emphasis added). 

During the enactment of the 1977 Act, the Senate Committee 

on Human Resources, made this statement: 

"The Committee disavows any notion that imminent danger can 

be defined in terms of a percentage of probability that an 

accident will happen; rather the concept of imminent danger 

requires an examination of the potential of the risk to 

cause serious physical harm at any time. It is the Committee's view that the authority under this section is 

essential to the protection of miners and should be construed expansively by inspectors and the Commission." (Leg. 

Hist. of the Federal Mine Safety & Health Act of 1977, 

Act at 38). (emphasis added). 

Under the 1977 Act, decisional emphasis seems to be on the 

individual factual configurations involved rather than on 

discrete tests and formulas for determining imminent danger. 

See, for example, Secretary of Labor v. U.S. Steel Corporation, 4 

FMSHRC 163 (1982). At this time, the Act's section 3(j) 

definition appears to be the primary legal touchstone. 

Evaluating the dangerous condition or practice - whether or not a 

violation-in the perspective of continued mining operations, as 

is required with S & S violations, also appears to be a prerequisite in determining the validity of an imminent danger order. 

There also is a case for treating these as prerequisites: (1) 

that the hazard (risk) foreseen must be one reasonably likely to 

induce fatalities or injuries of a reasonably serious nature, and 

(2) that such hazard or risk have an immediacy to it, that is, it 

could come to realization "at any time." See C.D. Livingston, 8 

FMSHRC 1006, 1013-1016 (1986). 

It is concluded on the basis of the findings heretofore made 

concerning the types of injuries (fatalities) which would 

reasonably be induced by the occurrence of the hazard, and the 

testimony relating to both the likelihood and immediacy of the 

hazard, that an imminent danger resulted from the violation. It 

is also found that this violation was significant and substantial 

since it created an imminent danger CT. 140, 145-149, 426-427). 

Specifically, I find that the Petitioner has established the 4 

elements of a significant and substantial violation, by 

establishing Cl> the occurrence of an underlying violation of a 

mandatory standard, (2) a safety hazard contributed to by such 

violation, (3) that there was a reasonable likelihood that the 

hazard will result in an injury, and (4) a reasonable likelihood 

that such injury would be of a reasonably serious nature. 

Mathies Coal Company, 6 FMSHRC 1 (January 1984). 

429 
Penalty Assessment. 

Respondent Amax operates a medium-sized underground potash 

mine which at material times had a payroll of approximately 248 

employees and an annual tonnage of 2 million production tons CT. 

9-11, 36-37, 50). Upon notification of the violation, Respondent 

proceeded in good faith to promptly abate the violative 

conditions CT. 6). During the pertinent 2-year period preceding 

the subject violation, Respondent had a history of 91 prior 

violations CT. 14; Ex. P-1). Payment of a penalty at any given 

appropriate monetary level will not jeopardize Respondent's 

ability to continue in business CT. 7). 

The opinion of Inspector Haynes that only a moderate degree 

of negligence was involved is found to be well-reasoned and not 

otherwise rebutted in the record. The Inspector explained this 

determination in his testimony: 

"Q. Why moderately? 

A. Moderately negligent in that a problem in that area 

in regard to ground and ground movement and ground control 

was known. However, if there's mitigating circumstances, 

then the normal assignment is moderate negligence. And 

the mitigating circumstance in my mind was that an attempt 

was already in progress of getting a bolter for the area. 

By mine plan and an attempt to adhere to that mine plan, 

there was already an attempt and an ongoing attempt to 

stay ahead of the weight shifts. Even though there was 

a failure, the attempt was there and that, in my mind, was 

the mitigating circumstance." 

(T. 146-147}. 

With respect to the gravity of the violation, I find no 

basis in this record to discount Inspector Haynes' determination 

that a high likelihood existed CT. 146) that the roof fall hazard 

he observed on February 12, 1987, could happen, and that if it 

did, a fatal injury would result if there were miners exposed to 

the hazard. He estimated the weight range of such a fall to be 

from 200 to 300 pounds at the least to up to two tons CT. 

147-149). It has previously been concluded that the violation 

in question caused an imminent danger and that the violation was 

significant and substantial. It is concluded that this is a very 

serious violation. 

In view of the foregoing mandatory assessment 

considerations, the $700 penalty sought by the Petitioner is 

found appropriate and is here assessed. 

430 
ORDER 

Citation/Order No. 2869304 is affirmed in all respects. 

Respondent shall pay to the Secretary of Labor within 30 days 

from the date hereof the sum of $700.00 as and for a civil 

penalty. 

Distribution: 

~~~.e? a;,y:¥&-t:fi, 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Rebecca A. Siegel, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Charles c. High, Jr., Esq., Kemp, Smith, Duncan & Hammond, P.O. 

Box 2800, El Paso, TX 79990-2800 (Certified Mail) 

James L. Dow, Esq., Dow & Williams, 207 West McKay, P.O. Box 128, 

Carlsbad, NM 88221-0128 (Certified Mail) 

/bls 

431 
TERRY G. 

PEABODY 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE · 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 7 1989 

MILLER, . 

. DISCRIMINATION 

Complainant . . v. . . Docket No. KENT 

. . COAL COMPANY, . . MADI CD 88-18 

Respondent . . Camp #2 

ORDER OF DISMISSAL 

PROCEEDING 

89-61-D 

Before: Judge Weisberger 

Complainant filed a request on March 8, 1989, to withdraw 

his complaint as stated: "I Terry G. Miller wish to withdraw the 

105c complaint (Docket # KENT 89-61-D} that I filed against 

Peabody Coal Co. in order that this matter may be settled. This 

is in the best interest of Local 1802 of "The United Mine Workers 

of America"." 

Accordingly, based on the Complaint's request, the Complaint 

is DISMISSED. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

(703) 756-6210 

Mr. Terry G. Miller, Rt. 1, Box 110-B, Uniontown, KY 42461 

(Certified Mail} 

Eugene P. Schmittgens, Jr., Esq., Peabody Coal Company, 301 North 

Memorial Drive, P. o. Box 373, St. Louis, MO 63166 <Certified 

Mail} 

dcp 

432 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 7 1989 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SEVEN DAY CONCRETE, INC., 

Respondent 

: 

: Docket No. CENT 88-66-M 

: A.C. No. 41-02918-05509 

: Ellinger Plant . . 

DECISION 

Appearances: 

Before: 

Brian L. Pudenz, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

the Petitioner. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 820Ca), seeking civil penalty assessments in the amount of 

$2,680, for 16 alleged violations of certain mandatory safety 

standards found in Part 56, Title 30, Code of Federal Regulations. The respondent filed an answer and notice of contest, 

and pursuant·to notice issued on November 15, 1988, the case 

was scheduled for a hearing on the merits with two other civil 

penalty cases docketed for hearings during the term Tuesday, 

February 28, 1989, through Thursday, March 2, 1989. All of 

the cases originated from the Dallas Regional Solicitor's 

Off ice, and the instant case was scheduled for hearing on 

Thursday, March 2, 1989. 

On Tuesday, February 21, 1989, while away from my office 

on other hearings, my Secretary received a copy of a letter 

addressed to the respondent by petitioner's counsel of record 

(Michael H. Olvera), concerning a proposed settlement of the 

case. Subsequently, Mr. Olvera telephoned my Secretary seeking a continuance of the hearing pending further consideration 

of the proposed settlement by the parties. Upon my return to 

433 
my office ·on Friday, February 24, 1989, petitioner's counsel 

was advised by telephone that the request for a continuance 

was denied as untimely, and he was advised that the hearing 

would proceed as scheduled and that the parties were expected 

to appear. Counsel was also advised that the parties would 

have an opportunity to present their settlement motion on the 

record at the scheduled hearing, and that the petitioner had 

the option of reassigning the case to the same counsel 

assigned to the two cases which would be heard in Houston on 

Tuesday and Wednesday, February 28 and March 1, 1989. Counsel 

Olvera's written motion for a continuance was subsequently 

received in my office on February 27, 1989, 4 days before the 

scheduled hearing and while I was in route to Houston. 

On Tuesday, February 28, 1989, prior to the commencement 

of the hearing in one of the other cases, petitioner's counsel 

Brian L. Pudenz presented me with a Settlament Agreement and a 

Motion to Approve Settlement prepared by counsel Olvera in 

this matter. Mr. Pudenz was advised that I would review the 

proposal and motion that same evening, and that the hearing 

scheduled for ·rhursday, March 2, 19 89, would be advanced to 

Wednesday, March 1, 1989, at which time I would consider the 

matter further and issue a bench ruling and decision with 

respect to the proposed settlement. Mr. Pudenz was subsequently advised that after review of the settlement motion, 

the settlement agreement, and the pleadings filed by the 

parties, I would approve the settlement and render a bench 

decision. In view of my decision to advance the hearing date, 

Mr. Pudenz was requested to contact the respondent's representative and advise him that in light of my approval of the 

settla~ent, the respondent need not enter a personal appearance on Wednesday, March 1, 1989. Mr. Pudenz subsequently 

informed.me that he contacted the respondent's representative 

and advised him that he was not required to personally appear 

at the rescheduled hearing regarding the settlement. 

Discussion 

On Wednesday, March 1, 1989, petitioner's counsel Pudenz 

was afforded an opportunity to formally present the proposed 

settlement for my consideration on the record, and he did so. 

The citations, initial assessments, and the proposed settlement amounts are as follows: 

30 C.F.R. 

Citation No. Date Section Assessment Settlement 

3061567 10/20/87 56.14001 $157.00 $157.00 

3061568 10/20/87 56.14001 $157.00 $157.00 

3061570 10/20/87 56.14001 $157.00 $157.00 

434 
3061573 10/20/87 56.11002 $157.00 $157.00 

3061574 10/20/87 56.11001 $157.00 $157.00 

3061575 10/20/87 56.14007 $157.00 $157.00 

3061577 10/20/87 56.14001 $157.00 $157.00 

3061578 10/20/87 56.12006 $241.00 $241.00 

3061579 10/20/87 56.14001 $157.00 $157.00 

3061580 10/20/87 56.12032 $241.00 $241.00 

3061661 10/20/87 56.14001 $157.00 $157.00 

3061662 10/20/87 56.14003 $157.00 $157.00 

3061664 10/20/87 56.14001 $157.00 $157.00 

3061665 10/20/87 56.14001 $157.00 $157.00 

3061667 10/20/87 56.14001 $157.00 $157.00 

3061668 10/20/87 56.9087 $157.00 $157.00 

In the course of my bench decision, I took note ·of the 

fact that the proposed settlement disposition of this case 

requires the respondent to pay the full amount of the initial 

proposed civil penalty assessments for each of the violations 

in question, and that the respondent agreed to withdraw its 

notice of contest. After review of the pleadings, arguments, 

and submissions in support of the motion to approve the 

proposed settlement, including the available information of 

record with respect to the six statutory civil penalty 

criteria found in section llO(i) of the Act, I issued a bench 

ruling granting the motion, and a bench decision approving the 

settlement as reasonable and in the public interest. My bench 

decision in this regard is herein REAFFIRMED, and the motion 

IS GRANTED, and the settlement IS APPROVED. 

I take note of the fact that the respondent has remitted 

a partial payment in the amount of $670 to the petitioner in 

partial payment of the settlement, and that it has agreed to 

remit and pay the remaining amounts in accordance with a payment schedule agreed to by the parties. The remaining amount 

of $2,010, will be paid by the respondent in 3 monthly installments of $670, paid on the second day of each month, beginning 

April 2, 1989, and ending June 2, 1989. Payments are to be 

made by cashier's or certified check made payable to the Mine 

Safety and Health Administration, U.S. Department of Labor, 

and they are to be mailed to the Office of Assessments, Mine 

Safety and Health Administration, 4015 Wilson Boulevard, 

Arlington, V.A 22203. 

ORDER 

The respondent IS ORDERED to pay the agreed-upon civil 

penalty assessments in the aforementioned amounts, and in 

accordance with the aforementioned payment schedule agreed to 

by the parties. This decision will not become final until 

435 
such time as full payment is made by the respondent to the 

petitioner, and I retain jurisdiction in this matter until 

payment of all installments are remitted and received by the 

petitioner. 

In the event that the respondent fails to make full payment, or otherwise fails to comply with the terms of the 

settlement, petitioner is free to file a motion seeking appropriate sanctions or further action against the respondent, 

including a reopening of the case. 

IT IS FURTHER ORDERED that the petitioner inform the 

Commission when the respondent has fully complied with this 

order, including confirmation that full compliance by the 

respondent has been achieved. Upon receipt of this information, this case will be ripe for dismissal. 

h..~u~ Administrative Law Judge 

Distribution: 

Brian L. Pudenz, Michael ff. Olvera, Esqs., Office of the 

Solicitor, U.S. Department of Labor, 525 Griffin Street, 

Suite 501, Dallas, TX 75202 (Certified Mail) 

Edward F. Taylor, President, Marvin Meier, Vice-President, 

Seven Day Concrete, Inc., P.O. Box 996, Angleton, TX 77515 

(Certified Mail) 

/f b 

436 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 9 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA S8-214 

A.C. No. 46-01455-03702 

Osage No. 3 Mine 

DECISION 

Appearances: Anita D. Eve, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Secretary of Labor 

(Secretary); Michael R. Peelish, Esq., 

Pittsburgh, Pennsylvania, for Respondent 

Consolidation Coal Company (Consol). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary seeks penalties for three alleged violations 

of mandatory safety standards, which were charged in separate 

withdrawal orders issued under section 104(d)(2) of the Act on 

January 15, 1988, January 29, 1988 and February 12, 1988. Each 

order alleged that the violation cited was significant and 

substantial, and that it resulted from the unwarrantable failure 

of Consol to comply with the safety standard involved. Consol 

denies that the violations occurred, and asserts that if 

violations are established they were neither significant and 

substantial, nor were they the result of its unwarrantable 

failure. Pursuant to notice, the case was called for hearing in 

Morgantown, West Virginia, on November 15, 1988. Ken J. Fetsko 

testified on behalf of the Secretary; Daniel Serge, 

William A. Kun, William Keith Fox, and Larry Allen Bragg 

testified on behalf of Consol. Both parties have filed 

post-hearing briefs. I have considered the entire record and the 

contentions of the parties, on the bases of which I make the 

following decision. 

437 
FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. FINDINGS COMMON TO ALL VIOLATIONS 

At all times relevant to this proceeding, Consol was the 

owner and operator of an underground coal mine in Osage, west 

Virginia known as the Osage No. 3 Mine. The mine has products 

which enter interstate commerce. Osage is a large mine with an 

annual production of more than 800,000 tons of coal. Consol is a 

large operator and annually produces more than 10 million tons of 

coal. Consol had 503 violations over 472 inspection days in the 

24 month period prior to the issuance of orders 2707304 and 

2707314. It had 480 violations over 456 inspection days in the 

24 month period prior to the issuance of order no. 3104904. This 

history of prior violations is not such that penalties otherwise 

appropriate should be increased because of it. The assessment of 

penalties will not affect Consol's ability to continue in 

business. Each of the cited conditions was abated promptly and 

in good faith after the contested orders were issued. 

2. ORDER NO. 2707304 

On January 15, 1988, Federal mine inspector Ken Fetsko 

issued an order under section 104Cd) of the Act, in which he 

alleged that a belt transfer drive was inadequately guarded to 

prevent persons from contacting the moving roller. There was a 

chain link guard in front of the drive which had been raised 

approximately 21 inches apparently to change perma-lube 

cannisters on the belt drive motor. The raised guard was 

attached to a J-hook. When the inspector arrived at the area, 

the belt was started up to resume production. A light coating of 

coal dust was present on the surface of the guard. The drive was 

located on a travel way. The mine floor in the area was damp. 

The hazard cited in the order was the possibility of a person 

contacting the roller: the chain and the motor themselves did 

not have unguarded moving parts. The roller was set back 

approximately 24 inches from the chain guard and was at an angle 

away from the guard. 

30 C.F.R. § 75.1722(a) provides in part that" ••• exposed 

moving machine parts which may be contacted by persons, and which 

may cause injury to persons shall be guarded." Although I 

believe it is unlikely that a person could accidentally put his 

hand through the raised guard and come in contact with the 

roller, I conclude that such an event "may" occur. Therefore, I 

conclude that a violation of 30 C.F.R. § 75.1722Ca) has been 

established. 

To establish that a violation is properly designated 

significant and substantial, the Secretary must show that it 

438 
contributes to a measure of danger to safety, and that there is a 

reasonable likelihood that the hazard contributed to will result 

in an injury of a reasonably serious nature. Mathies Coal Co., 6 

FMSHRC 1 (1984). The evidence in this record does not establish 

the likelihood that the violation will result in injury, because 

of the position and location of the roller behind the raised 

guard. 

A violation is caused by unwarrantable failure if the 

evidence establishes that it resulted from the mine operator's 

aggravated conduct constituting more than ordinary negligence. 

Emery Mining Corporation, 9 FMSHRC 1997 (1987). Although 

management personnel were present when the belt was reactivated 

with the guard partially raised, there is no evidence that they 

were aware of the raised guard, nor can I conclude that their 

conduct was reckless, inexcusable, or otherwise aggravated with 

respect to the violation. 

Therefore, I conclude that the Secretary improperly 

characterized the violation was significant and substantial, and 

improperly determined that it resulted from Consol's 

unwarrantable failure. 

The violation was not serious, was the result of negligence, 

and was abated in good faith. I conclude that a penalty of $75 

is appropriate for the violation. 

3. ORDER NO. 3104904 

On February 12, 1988, Inspector Fetsko issued a 104(d)(2) 

order, alleging a violation of 30 C.F.R. § 75.523 because the 

deenergizing device on a continuous miner was disconnected and 

lying on the deck of the miner. The miner was being operated 

just prior to the issuance of the order. The evidence clearly 

establishes that the "panic bar" on the deenergizing device had 

come loose or had been disconnected and was lying in the deck in 

the operator's compartment of the miner. The inspector concluded 

that it had been there for some time because of rust on the bar 

and the fact that part of it was covered with coal dust. The 

miner operator, however, testified that he checked the panic bar 

at the beginning of the shift and it was attached. He also 

tested it and it effectively shut off the power. He began 

operating the miner, cutting rock and coal from the top for an 

overcast. After a short time, the conveyor on the miner became 

inoperative, and the miner was shut down. It was not operated 

again before the order was issued. The miner operator did not 

check the panic bar after he began cutting the coal and rock. I 

accept the miner operator's testimony as truthful and accurate, 

and therefore conclude that the panic bar was connected and 

operative at the beginning of the shift. 

439 
30 C.F.R~ § 75.523 requires that electric face equipment be 

provided with a device that will quickly deenergize the tra1Tu11ing 

motors of the equipment in the event of an emergency. Although 

the miner operator testified tha~ he customarily deenergized his 

miner by turning off the switch and never used the panic bar 

located below his left elbow, I conclude that the standard 

requires· that the panic bar be attached and operative. The panic 

bar enables the operator to deenergize the motor with his knee or 

elbow even though both hands may be occupied with the controls. 

Therefore, I conclude that the evidence establishes a violation 

of 30 C.F.R. § 75.523. 

Inspector Fetsko concluded that the violation was 

significant and substantial because it was reasonably likely that 

crushing injuries would occur as a result of the continuous miner 

striking a worker because of failure to deenergize the miner. 

These conclusions, however, failed to consider the other 

deenergizing devices on the miner, including the on-off switch, 

and the foot pedal which runs the tramming motor. I conclude 

that the Secretary failed to establish that there was a 

reasonable likelihood that the hazard he described would result 

in a serious injury. 

I credit the miner operator's testimony that the panic bar 

arm was in place and operated properly at the beginning of his 

shift. There is no evidence that Consol knew that the arm was 

disconnected prior to the time the order was issued. Therefore, 

the Secretary has not established that the violation resulted 

from aggravated conduct constituting more than ordinary 

negligence. 

The violation was moderately serious, and resulted from 

moderate negligence. It was abated in good faith. I conclude 

that $100 is an appropriate penalty for the violation. 

4. ORDER NO. 2707314 

On January 29, 1988, Inspector Fetsko issued a section 

104(b) order charging a violation of 30 C.F.R. § 75.1105 because 

an enclosed pump house was not ventilated to the return air 

course. The pump was enclosed in a fireproof cinder block 

structure with a metal door. There was no tubing in place to 

vent the pump, which was in operation at the time the order was 

issued. The inspector testified that "l/21", C"a fireboss 

date"), was marked on the door. He further testified that John 

Mogus, the foreman told him on January 29 that the pump housing 

was built a week previously. Mogus was not called as a witness. 

The violation was abated by installing a vent tubing from the 

pump housing through an outby permanent stopping, across a belt 

440 
entry to a return aircourse. Consol's safety director, William 

Kun, testified that he was in the area with Inspector Fetsko on 

January 27, and that the pump in question was not housed at that 

time. He further testified that the pump was intended to be a 

temporary one and to be move~ up-as the work advanced. The pump 

was a large Gorman pump, and required four people to move it. 

Condol had a substantial problem with water in the area. It had 

a number of small sump pumps in the entry, in addition to the 

large Gorman pumps. All of the latter were housed in fireproof 

structures; none 6f the former were. All of the housed Gorman 

pumps, except the one cited in the order, were vented to the 

return aircourse. 

30 C.F.R. § 75.1105 requires, inter alia, that "permanent 

pumps shall be housed in fireproof structures or areas. Air 

currents used to ventilate structures or areas enclosing 

electrical installations shall be coursed directly into the 

return." 

I conclude that the pump which was the subject of the order 

involved herein was a permanent pump. Since the air ventilating 

the pump was not coursed directly into return air, a violation of 

the standard has been established. 

The Inspector testified that the heat generated by the pump 

motor could cause smoke which would travel up into the 

construction section and on up through the main line where miners 

were working. He concluded that there was a reasonable 

likelihood that injury or illness could result from the 

violation, but he also seemed to agree that something would have 

to be wrong with the pump or the motor to cause the smoke. There 

is no evidence that at the time the order was issued, the pump or 

pump motor were defective in any way. I conclude that the 

Secretary failed to establish that there was a reasonable 

likelihood that a serious injury would result from the violation. 

I am persuaded that the pump had been housed in the 

permanent fireproof structure for some days prior to the issuance 

of the order. I do not accept Consol's contention that this was 

done inadvertently. Management was clearly aware (Foreman Mogus) 

that the air ventilating the pump was not being coursed into the 

return. I conclude that the violation resulted from Consol's 

aggravated conduct consisting of more than ordinary negligence. 

Therefore, I conclude that the Secretary improperly 

characterized the violation as significant and substantial, but 

properly determined that it resulted from unwarrantable failure. 

441 
The violation was moderately serious, was the result of 

aggravated negligence, and was abated in good faith. I conclude 

that a penalty of $500 is appropriate for the violation. 

_ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Order Na. 2707304 is MODIFIED to a section 104(a) 

citation. The special findings contained in the order that the 

violation was significant and substantial, and resulted from 

unwarrantable failure are not sustained. 

2. Order No. 3104904 is MODIFIED to a section 104(a) 

citation. The special findings contained in the order that the 

violation was significant and substantial, and resulted from 

unwarrantable failure are not sustained. 

3. Order No. 2707314 is AFFIRMED, including its finding 

that the violation resulted from Consol's unwarrantable failure. 

However, the finding that the violation was significant and 

substantial is not sustained. 

4. Consol shall, within 30 days of the date of this 

decision, pay the sum of $675 as civil penalties for the 

violations found herein. 

Distribution: 

. I ~·~/ / ; ,// 

4~·,. ,., .- /1 ... ,.·¥)1:n-.',...,:.:_.,,,.....te/t! ·t.J/v:/LL--;:. ... /I 1;_ ,.. c.-· '-'"- ,· 

J" James A. Broderick 

Administrative Law Judge 

Anita D. Eve, Eaq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

slk 

442 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 9 1989 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ALLENDALE GRAVEL COMPANY, 

Respondent 

. . 

: Docket No. LAKE 88-134-M 

: A.C. No. 11-02842-05503 . . Pinkstaff Plant Mine 

DECISION 

Appearan,ces: 

Before: 

Miguel J. Carmona, Esq., Office of the 

Solicitor, U.S. Department of Labor, Chicago, 

Illinois, for the Petitioner. 

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) seeking a civil penalty assessment in the amount of 

$42, for an alleged violation of mandatory safety standard 

30 C.F.R. § 56.18002. The respondent filed an answer and 

notice of contest, and the matter was scheduled for hearing in 

Evansville, Indiana, along with several other cases during the 

hearing term March 8-9, 1989. Petitioner's counsel advised me 

that the parties agreed to a proposed settlement of the case, 

and he was afforded an opportunity to present the motion and 

supporting arguments on the record at the conclusion of 

another hearing held in Evansville on March 8, 1989. 

Issue 

The issue in this case is whether or not the respondent 

violated the cited mandatory safety standard, and if so, the 

appropriate civil penalty assessment to be made for the violation, taking into account the civil penalty assessment 

criteria found in section llO(i) of the Act. 
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 ~he 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.l et seq. 

Discussion 

Section 104(a) "S&S" Citation No. 3260277, issued on 

April 20, 1988, cites a violation of mandatory safety standard, 

30 C.F.R. § 56.18002, and the cited condition or practice 

states as follows: 

Records were not provided to show that a 

competent person was making an examine (sic) of 

the work areas on a daily shift basis. There 

was no form provided to show that anyone had 

examined the work areas. A condition which 

could have adversely affected safety was cited 

during this inspection. There was no ground 

mat at the electrical control switches. 

Petitioner's counsel confirmed that the parties have 

agreed to a proposed settlement of this case, and that the 

respondent has agreed to pay a civil penalty assessment in the 

amount of $30, in satisfaction of the violation in question. 

In support of the slight reduction of the initial civil 

penalty assessment made in this case, petitioner's counsel 

asserted that the gravity of the violation was moderate, and 

that the respondent exercised a moderate degree of negligence 

in that it knew or should have known that work shift examinations were r~quired to be recorded and records kept. Counsel 

agreed that it was possible that the shift examinations were 

in fact made, and that the violation only concerns a failure 

to record the results of the examination. 

Petitioner's counsel stated that the respondent is a very 

small operator with 5,506 annual work hours, and that it has 

no assessed civil penalty violations for the 24-month period 

preceding the issuance of the citation in question. Counsel 

stated further that in view of its small size, the respondent 

believed that it was not required to maintain the examination 

records in question. Counsel confirmed that the violation was 

timely abated in good faith by the respondent, and I take note 

444 
of the fa~t that the citation termination notice reflects that 

the mine superintendent is examining the work areas and recording the examinations in a log book. 

Concl.usion 

After careful review and consideration of the pleadings, 

and arguments in support of the proposed settlement of this 

case, I conclude and find that the proposed settlement disposition is reasonable and in the public interest. Accordingly, 

pursuant to 29 C.F.R. § 2700.30, the settlement IS APPROVED. 

ORDER 

Respondent IS ORDERED to pay a civil penalty in the amount 

of $30 in satisfaction of the citation in question within 

thirty (30) days of the date of this decision and order, and 

upon receipt of payment by the petitioner, this proceeding is 

dismissed. 

.ff~Ko<dr~ Administrative Law Judge 

Distribution: 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. 

Department of Labor, 230 South Dearborn Street, 8th Floor, 

Chicago, IL 60604 (Certified Mail) 

Mr. James E. Litherland, President, Allendale Gravel Company, 

Inc., R.R. 1, Allendale, IL 62410 (Certified Mail) 

/f b 

445 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ARNOLD SHARP, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

HAR 3 0 1989 

Complainant 

DISCRIMINATION PROCEEDING 

Docket.No. KENT 89-45-D 

MSHA Case No. PIKE CD Bff-18 

BIG ELK CREEK COAL COMPANY, 

INC. I 

Respondent 

ORDER OF DISMISSAL 

Before: Judge Koutras 

Mr. Sharp's request of March 27, 1989, to withdraw his 

complaint in this matter IS GRANTED, and this case IS DISMISSED • 

Attach.TUent 

Distribution: 

. I 

~)~'d_,L/L~A a j:;{V'-:iz;_~ <.teorge A\.- Koutras 

Administrative Law Judge 

Mr. Arnold Sharp, General Delivery, Bulan, KY 41722 

(Certified Mail) 

Edwin s. Hopson, Esq., Wyatt, Tarrant & Combs, 2600 Citizens 

Plaza, Louisville, KY 40202 (Certified Mail) 

/fb 

446 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 3 0 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TUSCOLA STONE COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

DECISION 

Docket No. LAKE 88-127-M 

A. C. No. 11-01657-05506 

Docket No. LAKE 89-26-M 

A. C. No. 11-01657-05508 

Tuscola Stone Company 

Appearances: Miguel J. Carmona, Esq., Office of the 

Solicitor, U.S. Department of Labor, Chicago, 

Illinoi$ for Petitioner; 

Daniel P. Foltyniewicz, Risk Manager, Tuscola 

Stone Company, Elgin, Illinois for 

Respondent. 

Before: Judge Melick 

The~e cases are before me upon the petitions for civil 

penalties filed by the Secret~ry of Labor pursuant to section 

105Cd) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c § 801 et seq., the "Act, 11 charging the Tuscola Stone 

Company (Tuscola) with two violations of regulatory standards. 

The general issue before me is whether Tuscola violated the 

cited regulatory standards and, if so, the appropriate civil 

penalty to be assessed in accordance with section llOCi) of 

the Act. 

Citation No. 3260039 alleges a "significant and 

substantial" violation of the mandatory standard at 

30 C.F.R. § 56.9003 and charges as follows: 

The service brakes on the 50 Euc haul truck 

# MEOl are not adequate to stop and hold the truck 

on the inclines and declines being traveled in the 

pit. The service brakes were checked with the haul 

unit loaded and empty and in neither check would 

the service brakes stop and hold the haul t~uck. 

The truck is to be removed from service until the 

brakes are repaired. The haul roads being traveled 

447 
are narrow and steep, with a drop off on one or 

both sides. 

The standard at 30 C.F.R. § 56.9003 requires that 

"powered mobile equipment shall be provided with adequate 

brakes." 

Tuscola does not dispute the testimony of Inspector Bill 

Henson of the Federal Mine Safety and Health Administration . 

(MSHA) in support of this violation nor does it dispute his 

gravity and "significant and substantial" findings. 

Henson testified that during the course of his inspection of 

the Tuscola limestone multi-bench open pit mine on 

March 2, 1988, he traveled to the loading area of the pit in 

the cited Euc #MEOl truck. The truck was loaded and as it 

started down a decline the driver was asked to apply its 

service brakes. The brakes were applied but the truck 

failed to stop and continued down the decline and partly up 

the next incline traveling 75 to 100 feet. In another test 

the brakes were applied on the decline with an unloaded truck. 

The brakes still did not hold and the truck continued to 

travel 50 to 100 feet. 

The ramps in the area in which the cited truck was 

operating were only 20 to 25 feet wide--wide eriough to allow 

only one of these large trucks to pass at a time--and up to 

150 feet high. Inspector Henson observed that other trucks 

including 3/4 ton service vehicles and pick-up trucks were 

operating in the ramp area and he opined that it was highly 

likely that the haul truck in the cited condition~ weighing 

about 100 tons fully loaded, would drive into another vehicle 

or pass over the side of the roadway and overturn. He also 

observed that the truck was used on a daily basis thereby 

increasing the likelihood of a fatal accident. Under the 

circumstances the violation is proven as charged. It is also 

proven that the violation was serious and "significant and 

substantial". Secretary v. Mathies Coal Company, 6 FMSHRC 1 

(1984). 

Henson also opined that the violation was the result of 

high operator negligence. The driver of the cited truck 

informed Henson that an effort had been made to adjust the 

brakes but was unsuccessful and that he knew the brakes were 

not working properly. The mechanic also informed Henson that 

he had tried to adjust the brakes but had been successful in 

adjusting only one of the four brakes. He told Henson that 

the other brakes were either "frozen" or were 

448 
"self-adjusting". In any event the truck was returned to 

service with three of the four ~ervice brakes not 

functioning. 

Tuscola maintains that it should not be charged with 

negligence since neither the mechanic nor the truck driver 

informed any management personnel of the defective brakes or 

that the truck had been returned to service without the 

brakes having been properly adjusted. Under certain 

circumstances a mine operator may in any event be held 

responsible for the negligence of its rank and file employees. 

See Secretary v. Southern Ohio Coal Co., 4 FMSHRC 59 (1982); 

Secretary v. Old Dominion Power Co., 6 FMSHRC 1886 (1984). 

It may reasonably be inf erred from the evidence in this case 

that Tuscola failed to exercise proper supervision of its 

employees, failed to implement procedures for reporting 

unsafe equipment and failed to have appropriate disciplinary 

procedures in effect lt the time of the cited violation for 

employees who failed to report unsafe conditions. Indeed, 

Tuscola management did not even inquire of the truck driver 

until almost a year after the incident as to why he failed 

to report the inadequate brakes and there is no evidence that 

any discipline was taken against him. Accordingly even in 

the absense of ev~dence of direct management knowledge of the 

defective brakes I find that·the violation was the result of 

operator negligence. 

Citation No. 3260040 

Citation No. 3260040, as amended, alleges a violation of 

the regulatory standard at 30 C.F.R. § 56.9002 and charges as 

follows: 

The parking brake on the 50 ton Euc haul truck 

#MEOl is not operative. The truck was checked 

empty on a slight grade. The truck is being used to 

haul shot rock from the pit benches to the primary 

stockpile. The hand brake (dump brake) on this 

haul unit is also inoperative. 

30 C.F.R. § 56.9002 provides that "equipment defects 

affecting safety shall be corrected before the equipment is 

used." 

Inspector Henson conceded at hearing that the test he 

performed on the parking brake in this case i.e. attempting 

to stop a moving truck with the parking brake, was not the 

449 
"standard test" used by MSHA.· He further conceded that 

parking brakes are not designed'to bring a moving haul truck 

to a stop. Under the circumstances I cannot find that the 

test utilized by Henson in this case is an appropriate test 

to determine the adequacy of the parking brake. Thus that 

part of the citation charging Tuscola with having inadequate 

parking brakes on the haul truck must be vacated. 

The citation also charges however that the hand brake 

was inadequate. It is not disputed that the hand brake is in 

fact designed to bring a moving truck such as the cited truck 

to a halt. It is also not disputed that the cited truck 

failed to stop upon application of the hand brake. Under the 

circumstances the violation is proven as charged. 

Henson opined that the violation was also "significant 

and substantial". He considered it "reasonably likely" that 

the inadequate hand brake could contribute to an accident. 

In particular he noted that the truck driver would most 

likely be struck by the moving truck while dismounting after 

parking and application of the hand brake. There is no 

dispute that the injuries to the truck driver would be 

serious if struck by the truck. This evidence is ·not 

disputed and I agree that the violation was serious and 

"significant and subst~ntial". 

Henson also found the operator to be chargeable with 

high negligence. For the reasons previously noted in support 

of the negligence findings under Citation No. 3260039, I also 

find the operator negligent with respect to the instant 

violation. 

In asses~ing civil penalties in this case I have also 

considered that the violations were abated in accordance with 

the Secretary's directions, that the operator is small in 

size and that the operator has a minimal history of 

violations. Accordingly I find the following civil penalties 

to be appropriate: Citation No. 3260040-$100; 

Citation No. 3260039-$300. 

450 
.,ORDER 

The Tuscola Stone Company is hereby directed to pay 

civil penalties of $400 within 30 days of date of this 

decision. 

Distribution: 

Miguel A. Carmona, Esq., 

Department of Labor, 230 

60604 (Certified Mail) 

'. ick 

Admini rative 

( 703) l6-6261 

Office of the Solicitor, U.S. 

South Dearborn Street, Chicago, IL 

Daniel P. Foltyniewicz, Risk Manager, Tuscola Stone Company, 

R.R. 1, P.O. Box 184, Tuscola, IL 61953 (Certified Mail) 

nt 

451 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 3 0 1~89 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

METTIKI COAL CORPORATION, 

Respondent 

Before: Judge Melick 

. . 

. . 

: 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 88-37 

A. C. No. 18-00621-03633' 

Mettiki Mine 

DECISION 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to 

section 105Cd) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801 et seq., the "Act," charging the 

Mettiki Coal Corporation CMettiki) with one violation of the 

regulatory standard at 30 C.F.R § 75.1400-4. The issue 

before me is whether Mettiki violated the cited regulatory 

standard and, if so, the appropriate civil penalty to be 

assessed in accordance with section llOCi> of the Act. 

Citation No. 3115919, issued pursuant to section 104(a) 

of the Act alleges a "significant and substantial" violation 

and charges that: "The results of the daily inspection of 

the hoisting equipment at A-portal was [sic] not recorded for 

4-15-88, the hoist was inspected on 4-14-88 and then on 

4-16-88.". 

The cited standard provides as follows: 

At the compietion of each daily examination 

required by § 75.1400, the person making the 

examination shall certify, by signature and date, 

that the examination has been made. If any unsafe 

condition is found during the examinations required 

by § 75.1400-3, the person conducting the 

examination shall make a record of the condition 

and the date. Certifications and records shall be 

retained for one year. 

In a motion to dismiss filed February 16, 1989, Mettiki 

argued, inter alia, that there was no violation on 

452 
April 15, 1988, of 30 C.F.R~ .§ 75.1400~4 (requiring 

examinations to be recorded). because no examina.tion had been 

performed on April 15, 1988. Mettiki notes that 

section 75.1400-4 is a recording regulation which requires 

that after a daily hoist examination is performed, the 

results of that examination must be recorded. .Me.ttiki 

further obser~es that the Secretary's regulations imposed two 

distinct require~ents on a mine operator: (1) an obligation 

to examine and, (2) an obligation to record examinations 

made. 

I agree with Mettiki's position herein. Clearly the 

Secretary's regulations concerning hoisting and man-trips 

(Sub-Part 0) have separate and distinct requir.aments--one for 

daily examinations under section 75.1400-3 and another for 

recordation of such daily examinations under section 

75.1400-4. The latter standard does not in itself require a 

daily examination but rather requires recordation following 

an examination. Since it is not disputed that no examin~tion 

was performed on April 15, 1988 (Mettiki arguing that none 

was required under the law) a condition precedent to a 

violation of 30 C.F.R § 1400-4 did not exist. See Secretarv 

v. Dako Corporation, 10 FMSHRC 1259 (1988) (ALJ). 

Accordingly there was no violation as charged. 

Under the circumstances Mettiki'a Mot'on to Dismiss is 

3ranted and Citation No. 3115919 is vacate .• 

Ju:lge 

Distribution: 

Judith L. Horowitz, Esq., Office oE the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, P~ 19104 (Cer~ified Mail) 

Susan E. Chetlin, Esq., Crowell & ~orinq, 1001 Pennsylvania 

Ave., ~W, Wa3hington, D.C. 20004-2505 (Certified Mail> 

nt 

453 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

ARNO SAND COMPANY, 

Respondent 

MAR 3 0 1989 

. 

. 

. . 

. . 

. . 

. . 

CIVIL PE~ALTY PROCEEDING 

Docket. No. SE 88-55-M 

A.C. No. 31-01585-05502 

: Highsmith Pit 

: 

. . 

DECISION 

Appearances: Michael K. Hagan, Esq., Office of the 

Solicitor, Department of Labor, Atlanta, 

Georgia for Petitioner; 

George A. Arno, President, Arno Sand Company, 

Linden, North Carolina, for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to section 

105Cd) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801, et seq., the "Act," charging the Arno Sand 

Company (Arno) with two violations of regulatory standards. 

The general issue before me is whether Arno violated the 

cited regulatory standards and, if so, whether those 

violations were of such a nature as could significantly and 

substantially contribute to the cause and effect of a mine 

safety or health hazard, i.e. whether the violations were 

"significant and substantial". 

Citation No. 2859775 alleges a "significant and 

substantial" violation of the regulatory standard at 

30 C.F.R. § 56.9003 and charges as follows: 

The Clark 75 front-end loader being used to load 

sand was being operated without brakes. The brake 

caliper on left front wheel was bursted [sic]. 

The cited standard requires that "powered mobile 

equipment be shall provided with adequate brakes." 

There is no dispute in this case that the Clark 75 

.Eront .... end loader was indeed without adequate brakes when 

454 
cited on November 12, 1987. The left front brake caliper was 

admittedly }Jroken and, upon later examination, the brake pads 

were found to be worn down almost to the metal. According to 

Inspector Ron Lilly of the .FederaL,M.ine Safety and Health 

Administration, CMSHA), Jilnmy Arne>-;' the front end loader 

operator, told him at the ou1:set of the inspection that the 

brakes were in good shape but when asked to perform a test on 

the brakes, admitted that the brakes would not stop the 

loader. Arno also admitted to Inspecto+ Lilly that he had 

loaded a truck with the loader that morning. 

By way of defense, George Arno, former owner of the Arno 

Sand Company stated that there was no evidence in this case 

to show that the front-end loader was being operated at the 

time of the citation. In this regard Jimmy Arno testified 

that he had moved the loader that day only for the purpose of 

repairing the back-up alarm. Jimmy Arno also testified, that 

the last time he had used the front-end loader it had had 

brakes. He also testified however that he did not know when 

the brakes went out because he did not use the brakes. This 

testimony is internally inconsistent and conflicts with the 

earlier admission to Inspector Lilly. I therefore can give 

this testimony but little weight. Accordingly I do not find 

the proffered defense to be credible. 

In addition at the time of his inspection on 

November 12, 1987, Inspector Lilly found the cited front-end 

loader with the motor running. The loader had admittedly not 

been tagged out to identify it has having been removed from 

service and Jimmy Arno admitted that he drove the loader that 

morning for the purpose of obtaining a "piece of wire" from 

the trailer. It is also apparent that the front-end loader 

had been used without adequate brakes on prior occasions 

since the brake pads had admittedly been worn nearly to the 

metal. Under the circumstances, it is clear that the 

violation is _proven as charged. · 

Since the loader had not been removed from service by 

tagging out or other similar procedure the violation was 

also "significant and substantial". The testimony of 

Inspector Lilly in this regard is undisputed. Lilly 

observed that the cited loader weighed 20 tons. He 

considered it highly likely that other vehicles would be 

struck by this loader because it had to drive down a grade 

into the pit where other traffic from other mine operators 

were operating. See Mathies Coal Co., 6 FMSHRC 1 (1984). 

Inspector Lilly found Arno chargeable with "moderate" 

negligence. It may reasonably be inferred from the evidence 

455 
that Jimmy Arno had been operating the loader at a time when 

the brakes were clearly deficient. When considering this 

in conjunction with the related citation for failing to 

report this brake defect in accordance the regulatory 

standard at 30 C.F.R. § 56.~001-it is apparent that the 

operator was indeed negligent in failing to establish and 

maintain appropriate procedures for reporting equipment 

defects. See Secretary v. Southern Ohio Coal Co., 

4 FMSHRC 59 Cl982)i Secretary v. Old Dominion Power Co., 

6 FMSHRC 1886 (1984). 

Citation No. 2859825 alleges a violation of the standard 

at 30 C.F.R. § 56.9001 and charges that "the defect on the 

Clark 75 front-end loader had not been recorded." The cited 

standard requires in part as follows: 

Equipment-defects affecting safety ~hall be 

reported to, and recorded by, the mine operator. 

The record shall be maintained at the mine or 

nearest mine off ice for at least six months from 

the date the defects are recorded. Such records 

shall be made available for inspection by the 

Secretary of Labor or his duly authorized 

representative. 

It is not disputed in this case that no records had been 

prepared concerning the cited defective brakes. Jimmy Arno 

conceded that he had not even orally informed his father 

about the worn out brake pads and broken brake caliper. 

Indeed Jimmy Arno admitted that he had never even seen a 

record concerning machine maintenance at the mine. 

George Arno also testified that he did not keep any such 

records except repair orders and bills. Under the 

circumstances the violation is proven as charged. 

George Arno testified that he had no knowledge of MSHA 

record keeping requirements for equipment defects. Inasmuch 

as this mine was a very small operation and apparently had 

not been subject to prior inpections I find it chargeable 

with moderate negligence in regard to this violation. 

Considering the small size of the operator, the absence 

of any history of violations and the apparent abatement I 

find that the following civil penalties are appropriate: 

Citation No. 2859775 $50, Citation No. 2859825 $10. 

456 
ORDER I 

The Arno Sand Company is hereby ordered to 

penalties of $60 within 30 qays-of the date of 

I 

I ) I '\ 

!/'A-/ \ 

pay civil 

hi~ deci~ion. jt ..,~_,v· . ./\~ 

ary Mel~ck dn1inis t a ti ve 

\ Lawi .. udge 

(703) 75 -6261 

Distribution: 

Michael K. Hagan, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 339, 1371 Peachtree Street, N.E., 

Atlanta, GA 30367 (Certified Mail) 

Mr. George A. Arno, Route 1, Box 80, Linden, NC 28356 

(Certified Mail) 

nt 

457 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 311989 

CONSOLIDATION COAL COMPANY 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF DAVID P. CLARKE, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

. 

. 

. . 

. . 

: 

. . 

. . 

. . 

CONTEST PROCEEDING . 

Docket No. WEVA 88-184-R 

Citation No. 2949890; 3/1/88 

Ireland Mine 

Mine ID 46-01438 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-209 

A. C. No. 46-01438-03730 

: Ireland Mine 

: 

. . 

. . 

. . 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 88-282-D 

MORG CD 88-7 

: Ireland Mine 

. . 

DECISION 

Appearances: Anita o. Eve, Esq., Office of the Solicitor, U. s. 

Department of Labor, Philadelphia, Pennsylvania, 

for the Secretary; 

Michael Peelish, Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania, for Re~pondeni. 

Before: Judge Weisberger 

Statement of the Cases 

In these consolidated cases the Secretary (Petitioner) seeks 

a civil penalty for an alleged violation by the Operator 

(Respondent) of section 103Cf) of the Federal Mine Safety and 

Health Act of 1977, and the Respondent has contested the 

458 
violation and alleges that the underlying citation be vacated. 

In addition, the Secretary on behalf of David P. Clarke seeks, in 

a Complaint filed on June 27, 1988, and in an Amended Complaint 

filed on July 20, 1988, seeks a civil penalty and various declaratory relief alleging that Respondent unlawfully discriminated 

against Clarke in violation 0£ section 105Cc)(l) of the Act. 

Respondent filed its Answer to the Complaint on July 11, 1988. 

Subsequent to notice, the cases were heard in Wheeling, 

West Virginia, on December 14, 1988. David P. Clarke, David 

Miller, and Lyle Tipton testified for Petitioner, and John Hiram 

Snyder and Hestle B. Riggle, Jr., testified for Respondent. 

The Parties were allowed 3 weeks after receipt of the Transcript to file Proposed Findings of Fact and Memorandum of Law. 

Respondent filed its Brief on March 21, 1989. Petitioner did not 

file any Brief or Proposed Findings of Fact. 

Stipulations 

At the hearing the Parties submitted the following stipulations: 

1. Consolidation Coal Company is the owner and operator of 

the Ireland Mine located in Marshall County, west Virginia. 

2. Consolidation Coal Company and the Ireland Mine are 

subject to the jurisdiction of the Federal Mine Safety and Health 

Act of 1977. 

3. The Administrative Law Judge has jurisdiction over this 

case pursuant to section 105 of the Act. 

4. Section 104(a) Citation No. 2949890 was issued by Lyle 

R. Tipton, a duly authorized representative of the Secretary of 

Labor. 

5. The appropriateness of the penalties, if any, to the 

size of the coal operator's business, should be based on the fact 

that in the previous calendar year, 1987, the Ireland Mine 

produced an annual tonnage of 2.3 million and the contracting 

company, Consolidation Coal Company, had an annual tonnage of 

48.5 million. 

6. The history of previous violations should be determined 

based on the fact that the total number of assessed violations in 

the preceding 24 months is 652, and the total number of inspection 

days for that period is 687. 

7. Assessment of a civil penalty in these proceedings will 

not affect the operator's ability to continue in business. 

459 
Issues 

Essentially the ultimate issue to be decided in each of the 

above captioned cases, which have been consolidated, is whether 

Respondent discriminated against-David P. Clarke in violation of 

section 105(c)(l) of the Act.~ In this connection, Respondent 

argues that Clarke was not engaged in any protected activities. 

However, Respondent concedes that if it be found that Clarke did 

in fact engage in protected activities, then it is not disputed 

that Respondent took adverse action against Clarke based solely 

upon his protected activity. As such, the critical issue to be 

determinedherein is whether or not Clarke engaged in any protected 

activities. 

Findings of Fact and Discussion 

David P. Clarke, a miner employed by Respondent at the 

Moundsville Portal of its Ireland Mine, is an elected Safety 

Committeeman of the union representing the miners at the Ireland 

Mine. In this capacity it is his responsibility, along with the 

three other members of the safety committee, to accompany MSHA 

inspectors on inspections of the Ireland Mine. On December 21, 

1987, Hestle B. Riggle, Jr., Respondent's safety supervisor, in 

response to Clarke's inquiry, advised him at the beginning of the 

day shift, that an MSHA inspector was at the River Portal that 

morning to perform an inspection. Clarke informed Riggle that he 

was the elected official on the Union's Safety Committee, and 

requested of the latter permission to go to the River Portal to 

accompany the inspector on the inspection. Riggle denied his 

request and indicated that, in essence, the designated Union 

members at the River Portal, which was approximately 12 miles 

from the Moundsville Portal, would go with the Inspector. Clarke 

then made the same request of George Carter and received the same 

response. Subsequently on January 12 and January 16, 1988, Clarke 

made similar requests to accompany the MSHA inspector at the River 

Portal, and the requests were denied for the same reasons. At each 

instance there were no Union Safety Committeemen at the River 

Portal. Further, on March 1, 1988, Clarke made a similar request 

to accompany an MSHA inspector at the River Portal, and John Hiram 

Snyder, Respondent's operations superintendent at the Ireland Mine, 

informed him that he (Snyder), would not allow Clarke to travel to 

the River Portal unless the inspector would write a violation. 

Lyle Tipton, a MSHA Journeyman inspector, on March 1, 1988, issued 

a Citation No. 2949890 alleging that Respondent violated 

section 103Cf) of the Act in refusing Clarke permission to accompany him at the inspection at the River Portal. 

460 
The loca.l Union representing the miners at Respondent's 

Ireland Mine had prepared separate walk-around lists for the 

Moundsville Portal, River Portal, and Preparation Plant. According to the uncontradicted testimony of Snyder, the walk-around 

list for the Moundsville Portal was posted on the Portal's 

bulletin board. The Complainant's name was not on the posted 

list. The walk-around list for the River Portal and the one for 

the Preparation Plant were posted in those areas respectively. 

According to Snyder, prior to Clarke's request on December 21, 

1987, it was the practice that an inspector commencing an inspection at the Moundsville Portal would get a walk-around from among 

the workers in that area. In 1987 and 1988 respectively, David 

Miller gave management an updated walk-around list containing 

only the four names of the safety committeemen as designated 

representatives. According to Miller, these lists stated that if 

one of the safety committeemen was not present, then the miners 

were free to choose their representative as per the Act. He 

further testified that the more extensive walk-around list was to 

be used at a specific location if the miners' Union representative was not present at that shift in 1985. Tipton indicated 

that in performing inspections, in the event that none of the 

walk-around specified on the walk-around list were present on the 

shift, he then offered an opportunity to the miners to select a 

representative to participate in the inspection. 

It appears to be the position of Respondent that, in essence, 

inasmuch as the miners' representatives to accompany the inspector 

could be selected from a broad list supplied by the Union, Clarke 

was not engaged in any protected activities when he asked to travel 

from the Moundsville Portal to the River Portal to accompany the 

Inspector. I find however, that in resolving the issue of whether 

Clarke engaged in protected activities an analysis must be made of 

Clarke's rights, as opposed to an analysis of management's duties 

and responsibilities. In this connection, testimony from Miller 

and Clarke, which has not been contradicted, establishes that 

Clarke was elected by the Union representing the miners at the 

Ireland Mine, to serve as a safety committeenan. Further, as their 

testimony has not been contradicted, it established that in this 

capacity Clarke had a right to represent the miners in accompanying 

the MSHA inspector on an inspection. In this connection, Clarke 

explained that to disallow him to travel with an Inspector on an 

inspection would, in essence, decrease the effectiveness of his 

being an authorized representative of the miners as a member of the 

safety committee, inasmuch as in that capacity he receives complaints from miners with regard to various hazards at the mine. 

Hence, he explained that if he would be unable to accompany an 

inspector at the River Portal, he would not be able to bring to the 

attention of the inspector the safety complaints of the miners he 

461 
represents. I thus conclude that Clarke, in requesting of management on the various dates in issue, the opportunity to travel from 

the Moundsville Portal to the River Portal to accompany an inspector on an inspection, was engaging in a protected activity. (See, 

Secretary on behalf of Richard Truex v. Consolidation Coal Company, 

8 FMSHRC 1293 (1986)). Hence, inasmuch as Clarke was a representative of the miners, and authorized by them, he thus had a right 

to accompany the inspector as requested pursuant to section 105 

of the Act (See, Truex, supra). Thus, inasmuch as Clarke had 

engaged in a protected activity on each occasion that he requested 

to accompany an inspector on an inspection, and it is essentially 

not contested that adverse action was taken against him in denying 

him this right, it is concluded that Complainant herein has established a prima facie case of discrimination. (See, Secretary of 

behalf of Pasula v. Consolidation Coal Company 2 FMSHRC 2786, 

2797-2800 (October 1980), rev'd on other grounds sub. non. 

Consolidation Coal Company v. Marshall, 663 F 2nd 1211 (3rd Cir. 

1981)). This prima facie case has not been rebutted, nor has 

Respondent herein established an affirmative defense. Thus, I 

conclude that there has been a violation of section 105(c) herein, 

and also of section 103Cf). 

In assessing a penalty for the violation found herein, I 

have taken into account and adopted the stipulations of the 

Parties with regard to the size of Respondent's operation, the 

history of its violations in the preceding 27 months, and the 

stipulation that an assessment of a penalty will not affect its 

ability to continue in business. With regard to Respondent's 

negligence, I have taken into account the testimony of 

Respondent's witnesses that the denial of Clarke's request to 

accompany the inspectors at the River Portal was based upon prior 

policy that miners working at that area be the ones to accompany 

the inspector. In this connection, Snyder explained the policy 

by indicating that a miners' representative traveling from the 

Moundsville Portal to the River Portal to accompany an inspector 

would lose production time during the travel between the two 

Portals, in contrast to having a representative from the miners 

already working at the River Portal accompany the inspector at 

that site. As such, Respondent's policy in this regard appears 

to be based upon a business reason. I also have taken into 

account Snyder's testimony that he conferred with legal counsel 

who advised him not to change the Respondent's policy in this 

regard. I also note that on each of these occasions when Clarke 

was deprived of his right to accompany the inspector, another 

miners' representative did indeed go with the inspector. However, with regard to the gravity of the violations, I note, as 

discussed above, that the deprivation of Clarke's right to 

accompany the inspectors at the River Portal would tend have the 

462 
effect of diminishing the effectiveness of safety complaints made 

by miners to him in his capacity as member of the safety 

committee. Taking into account all of the above factors, I 

conclude that a penalty herein of $200 is appropriate for the 

violations found herein. 

ORDER 

It is ORDERED that, within 30 days of this Decision, 

Respondent shall post a notice stating that it will not violate 

section 105(c) of the Act. It is further ORDERED that Respondent 

shall cease and desist attempts to interfere with the right of 

David P. Clarke to accompany inspectors on inspections as the 

designated representative of the miners. 

It is further ORDERED that Respondent shall, within 30 days 

of this Decision, pay $200 for the violations found herein. 

Distribution: 

Avram 

~~ Weisberger 

Administrative Law Judge 

Anita D. Eve, Esq., Office of the Solicitor, u. s. Department of 

Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

dcp 

463 

ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

703-756-6232 

March·3, 1989 

JOHN DIXON HACKER, 

Complainant 

: DISCRIMINATION PROCEEDING . . v. 

BLACK STREAK MINING, 

Respondent 

: Docket No. KENT 89-1-D 

: MSHA Case No. BARB CD 88-57 . . 

ORDER TO SHOW CAUSE 

Statement of the Case 

This proceeding concerns a complaint of discrimination 

filed by the complainant against the respondent pursuant to 

section 105{c) of the Federal Mine Safety and Health Act of 

1977. The official file reflects that Mr. Hacker filed his 

complaint on August 15, 1988, with the Secretary of Labor, 

Mine Safety and Health Administration (MSHA) District 7 Field 

Office. The complaint states as follows: 

At the end of our shift I ride the left 

outside. On 7/25/88 while riding the belt to 

·the surface I observed a rock fall on the belt 

and where the fall was the belt was cribbed on 

both sides. When I jumped off the belt I hit 

one of the cribs and it threw me back into the 

belt structure. As of this date I have 

received no workman compensation. I have been 

told that I no longer have a job at this 

company. 

I want my job back with backpay. Also I 

want the workman's compensation due me and all 

my medical bills paid. 

The complaint states that Mr. Hacker was employed by the 

respondent as a Belt Head Man at a salary of $6 an hour, based 

on a 40-hour work week. His overtime rate of pay is shown as 

$9 an hour, and that he worked 8 hours of overtime each week 

during the 12-month period preceding the date of his complaint. 

The complaint shows that Mr. Darrell Middleton is the 

464 
President of the respondent company, and that Mr. Wendell 

Middleton is the Vice-President. 

In a statement given to an MSHA special investigator on 

August 19, 1988, in the course of an investigation of his complaint, Mr. Hacker stated that he began his employment with 

the respondent in October, 1987, and that Mr. Wendell 

Middleton instructed him to ride the belt into the mine to his 

work station, while the rest' of his crew rode the scoop. 

Mr. Hacker stated further that while it was illegal to ride 

the belt, he believed that if he complained, "I wouldn't have 

a job." Mr. Hacker stated that lie also rode the belt out of 

the mine at the end of his shift because it was not practical 

for him to crawl to the section and ride the scoop out. 

Mr. Hacker stated that approximately a week prior to his 

injury on July 25, 1988, MSHA Inspector Chalk Myers, was in 

the mine, and that he (Hacker) told Mr. Myers that he rode the 

belt into the mine, and although the belt had a stop cord, it 

did not work. Mr. Hacker stated further that he also informed 

Mr. Myers that at various times other miners also rode the 

belt, and that no one preshifted the area where he worked 

alone. Mr. Hacker stated that Inspector Myers "cited several 

violations to the company." Mr. Hacker stated that Inspector 

Myers "wanted me to call the face and have the No. 2 belt shut 

down so he could make some electrical checks, but they 

wouldn't do it." 

Mr. Hacker stated that on the morning of July 25, 1988, 

when he rode the belt into the mine, he observed rock falling 

on the No. 1 belt, and when he rode the belt out he observed a 

large rock fall across the belt, and in order to avoid the 

rock, he jumped off the belt and struck a crib which was adjacent to the belt. When he later left the mine, he realized he 

was injured and went to a hospital where he was x-rayed and 

given a shot and told to stay off work 3 days. Two days later 

he was admitted to the Pineville, Kentucky, hospital for 

9 days. 

Mr. Hacker stated that he sent doctor's excuses to 

Mr. Middleton through another miner, and that his wife telephoned Mr. Middleton from the hospital, but that Mr. Middleton 

informed his wife that when he (Hacker> left the mine on 

July 25, he was "o.k." and that no accident had occurred. 

Mr. Hacker stated that when he subsequently called 

Mr. Wendell Middleton on August ~6, 1988, to inquire if he 

still had his job, Mr. Middleton informed him that as far as 

465 
he was concerned, Mr. Hacker had quit his job. ··Mr. Hacker 

stated that when he attempted to tell Mr •. Middleton what had 

happened to him, Mr. Middleton would not listen to him and 

that "he told me to sue him." 

By letter dated September 15, 1988, MSHA advised 

Mr. Hacker that it had investigated his complaint, and after a 

review of the information gathered during the investigation, 

made a determination that a violation of section 105(c) of the 

Act did not occur. Mr. Hacker was advised of his right to 

pursue the matter further by filing a complaint on his own 

behalf with the Commission within.30 days of MSHA's notification letter. 

By letter dated September 26, 1988, Mr. Hacker filed his 

pro se complaint with the Commission, and it was.receiv7d and 

docketed on October 4, 1988. His letter states in pertinent 

part as follows: 

I have lost my job due to an injury that I 

received while being employed by Black Streak 

Mining. I have filed a workmen's comp. claim. 

I have yet to receive workmen's comp. or anything due to this injury. I want to know from 

you all is it right to lose your job while 

under a doctor care? I have doctor's statements and x-rays due to this condition, and I 

also have witnesses stating verification of 

getting treated by a doctor at the emergency 

room in Pineville at the hospital. 

In addition to his complaint letter, Mr. Hacker submitted 

copies of his prior complaint statements made to MSHA, a copy 

of MSHA's letter of September 15, 1988, rejecting his complaint, and copies of certain hospital records incident to 

certain treatment he received on July 26 and August 4, 1988. 

Mr. Hacker subsequently submitted a letter to the Commission 

on October 21, 1988, stating that a copy of his complaint had 

been served on the respondent by certified mail, and he 

included the original postal service certified mailing receipt 

which reflects that it was received by the respondent on 

October 12, 1988. 

On December 27, 1988, the Commission's Chief Administrative Law Judge Paul Merlin. issued an order requiring the 

respondent to file an answer to Mr. Hacker's complaint, with 

the Commission within 30 days. The respondent was advised 

that if it did not file an answer it would be assumed that it 

has admitted the alleged acts of discrimination and that a 

466 
default judgment would be entered against the respondent 

granting Mr. Hacker any relief to which he may be entitled. 

The postal service certified mailing receipt reflects that the 

respondent received Judge Merlin's Order on January 7, 1989. 

However, the respondent has not complied with the order, and 

has not filed an answer to Mr. Hacker's complaint. Nor has it 

filed a response to Judge Merlin's order directing it to file 

an answer. 

Discussion 

The Commission's rules governing discrimination complaints 

filed pursuant to section 105Cc) of the Act are found in 

Part 2700, Title 29, Code of Federal Regulations. Rule 40(b), 

29 C.F.R. § 2700.40(b), provides as follows: 

Cb) * * * A complaint of discharge, discrimination or interference under section 105(c) of 

the Act, may be filed by the complainant miner, 

representative of miners, or applicant for 

employment if the Secretary determines that no 

violation has occurred, * * * • 

Commission Rule 42, 29 C.F.R. § 2700.42, provides as 

follows: 

A complaint of discharge, discrimination 

or interference shall include a short and plain 

statement of the facts, setting forth the 

alleged discharge, discrimination or interference, and a statement of the relief requested. 

Commission Rule 43, 29 C.F.R. § 2700.43 provides that 

within 30 days after service of a complaint filed by the 

complaining miner, the respondent mine operator shall file an 

answer. 

The Commission rule governing summary disposition of any 

proceeding filed pursuant to its rules is Rule 63, 29 C.F.R. 

§ 2700.63, and it provides as follows: 

(a) * * * When a party fails to comply with an 

order of a judge or these rules, an order to 

show cause shall be directed to the party 

before the entry of any order of default or 

dismissal. 

The pleadings in this case, including the complaint and 

information supplied by Mr. Hacker in support of his claim of 

467 
discrimination, reflect that his employment with the respondent was terminated on or about August 16, 1988. The respondent apparently takes the position that Mr. Hacker quit his 

job, and Mr. Hacker asserts that he was unable to return to 

work because of an alleged injury suffered when he jumped off 

a moving belt to avoid a falling rock, and that when he 

attempted to explain the circumstances of his failure to 

return to work, the respondent took the position that no accident or injury occurred, that Mr. Hacker quit his job, and 

that if Mr. Hacker wanted his.job back, respondent invited him 

to sue. 

Although Mr. Hacker's claim for workmen's compensation as 

a result of his alleged job-related injury, does not on its 

face present a viable discrimination complaint within the 

Commission's jurisdiction, his complaint does raise an inference that his job was terminated because of his informing. an 

MSHA inspector approximately a week prior to his injury that 

he was instructed to ride the belt to his work place by the 

respondent's vice-president, and that riding the belt was 

illegal. Mr. Hacker purportedly informed the inspector that 

riding the belt was illegal, that the belt stop-cord was 

inoperative, and that he worked alone and his work area was 

not preshifted. According to the complaint, after 

Mr. Hacker's conversation with the inspector, several violations were served on the respondent, and there is a inference 

that these asserted violations were related to his riding the 

belt, the defective stop-cord, and the failure to preshift his 

work area. In these circumstances, there is a further inference that Mr. Hacker's termination may have resulted from his 

conversation with the inspector, and the asserted violations 

which followed. Since a miner has a protected right to bring 

any alleged violative mine conditions to the attention of an 

inspector, he may not be discriminated against by the respondent for exercising this right, and if the respondent terminated him for this reason, Mr. Hacker has established a 

prima facie complaint of discrimination. At this stage of the 

proceeding, and in view of the respondent's failure to file an 

answer, the complaint stands unrebutted. 

The record in this case reflects that the respondent has 

failed to file an answer to the complaint as required by 

Commission Rule 29 C.F.R. § 2700.43, and that it has also 

failed to respond or comply with Judge Merlfn's order 

directing it to file an answer. 

468 
ORDER 

In view of the failure by the respondent to comply with 

the Commission's rule requiring it to file an answer to the 

complaint, and in view of its further failure to respond to 

Judge Merlin's Order, the respondent IS ORDERED TO SHOW CAUSE, 

that is, to explain or state why it should not be held in 

default and a summary judgment entered against it finding that 

it has discriminated against Mr. Hacker in violation of 

section 105Ccl of the Act, and granting the relief requested 

by Mr. Hacker. 

The respondent IS FURTHER ORDERED to file its response to 

this order within thirty (30) days of its receipt. 

Administrative 

rge • Koutras 

?/. ~ 

Law Judge 

Distribution: 

Mr. John Dixon Hacker, P.O. Box 63, Hulen, KY 40845 

(Certified Mail) 

Mr. Darrell Middleton, President, Black Streak Mining, 

Box 261, Cawood, KY 40815 (Certified Mail) 

/fb 

469 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

March 22, 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

·Petitioner 

v. 

MID-CONTINENT RESOURCES, INC., 

Respondent 

: 

. . 

. . 

: 

. . 

. . 

. . 

Docket No. WEST 88-230 

A.C. No. 05-00301-03548 

Docket No. WEST 88-231 

A.C. No. 05-00301-03549 

Dutch Creek No. 1 Mine 

ORDER SEALING PORTIONS OF TRANSCRIPT 

During the hearing in the above cases certain matters were heard 

in camera as the evidence presented involved sensitive, proprietary 

and confidenti~l information concerning the respondent's business 

operations. · 

Inasmuch as the appeal process favors a public transcript the 

in camera proceeding of December 1, 1988, is dissolved except for 

certain portions of the transcript which should remain sealed. 

Accordingly, the following order is appropriate: 

1. The follow~ng portions of the transcript are hereby sealed 

to be opened only by order of the presiding judge or by order of the 

Commission. These portions are as follows: 

Page Line Number(s) 

5 11 through 25 

6 1 through 12 

7 25 

8 10 through 22 

10 4 through 11 

15 21 through 22 

16 19 through 24 

28 7 through 25 

30 1 through 6 

31 13 through 16 

32 6 through 22 

33 23 through 24 

34 1 through 24 

35 1 through 17 

38 6 through 13 

39 12 through 18 

40 7 

42 1/ 14 through 22 

1/ The portion excised on page 42 is a comment on the evidence by 

counsel and it is excised because the evidence relating thereto has 

been sealed. 

470 
The material u~der seal consists of the following: 

Two copies of the in camera proceedings in 

its entirety and two copies marked with a 

yellow highlighter to identify the portions 

excised from the transcript. 

. 2. The public transcript containing sealed and unsealed 

evidence is altered by excising the sensitive, proprietary and 

confidential evidence portions from each page. Further, a copy 

of the entire in camera proceeding, as altered, is attached to 

this order. ~ 

Each page of the public transcript altered by this order 

shall contain a statement which shall identify the portion excised. 

Each portion so removed shall state it was excised by order of the 

presiding judge dated March 22, 1989. 

3. A copy of the in camera proceedings, as altered by this 

order, is attached hereto and a copy is forwarded to each party. 

4. I further direct counsel for the parties to seal the 

sensitive, proprietary and confidential evidence in their possession 

as identified by this order. Said evidence shall remain sealed until 

further order of the presiding judge or the Commission. 

Law Judge 

Distribution: 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.O. Drawer 790, 

Glenwood Springs, CO 81602 

James H. Barkley, Esq. and Margaret A. Miller, Esq., Office of 

the Solicitor, U.S. Department of Labor, 1585 Federal Building, 

1961 Stout Street, Denver, CO 80294 

/ot 

471 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

703-756-6232 

March 14, 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

SUPER BLOCK COAL CORPORATION, 

Respondent 

Docket No. LAKE 88-79 

: A.C. No. 12-01986-03504 

Hunley Creek 

ORDER TO SHOW CAUSE 

This case was scheduled for hearing in Evansville, Indiana, 

on March 9, 1989. A Notice of Hearing was served on the parties 

informing them of the hearing date and location, and the 

returned postal service certified mailing receipt reflects that 

it was received by the respondent's representative of record, 

Mr. Larry Wallace, President, Super Block Coal Corporation, on 

November 19, 1988. An Amended Notice of Hearing advising the 

parties of the hearing date and location in Evansville, was 

issued on February 23, 1989, and Mr. Wallace received this 

notice by certified mail on February 27, 1989. 

When the case was called for hearing in Evansville, at . 

9:30 a.m., on Thursday, March 9, 1989, Mr. Wallace failed to 

appear, and the hearing proceeded without him, and the petitioner presented evidence in support of the citation in issue 

and the proposed civil penalty assessment of $20 for the violation noted in the citation. After the hearing had begun, I 

received a telephone message from a Mr. Danny Jasper, who 

identified himself as the mine superintendent, and he informed 

the individual taking the message that he was unable to attend 

the hearing. Upon return to my office after the close of the 

record, I found a telephone message from Mr. Jasper who had 

called my secretary in Falls Church, Virginia, on the day of 

the hearing, to advise her that he was unable to attend the 

hearing because "no one was at the mine to supervise the men." 

Mr. Jasper had not previously entered any appearance in this 

matter, and no further communication has been received from 

Mr. Wallace. 

472 
Since Mr. Wallace is the respondent's representative of 

record, it was incumbent on him to timely notify me of his 

intention not to appear at the hearing. Under the circumstances, and in view of the failure by the respondent to appear 

at the scheduled hearing, or to otherwise notify me that it 

did not intend to appear, the respondent (Larry Wallace) IS 

ORDERED TO SHOW CAUSE, and to explain, why it should not be 

declared in default and a summary decision and order entered 

pursuant to Commission Rule 63, 29 C.F.R. § 2700.63, assessing 

the proposed civil penalty of $20 as final, and directing that 

such payment be made. The respondent is FURTHER ORDERED to 

file its response within ten (10) days of the receipt of this 

Show Cause Order. 

Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department 

of Labor; 230 South Dearborn Street, 8th Floor, Chicago, IL 

60604 (Certified Mail) 

Mr. Larry Wallace, President, Super Block Coal Corporation, 

Post Office Box 234, Crestwood, KY 40014 (Certified Mail) 

/fb 

473 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

March 24, 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THREE STAR DRILLING & 

PRODUCTION CORPORATION, 

Respondent 

. . 

. . 

. . 

ORDER 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 88-65-M 

A. C. No. 11-02866-05501 

Docket No. LAKE 88-77-M 

A. C. No. 11-02866-05502 

Docket No. LAKE 88-92-M 

A. C. No. 11-02866-05503 

DAD Well No. 1 

Appearances: Rafael Alvarez, Esq., Office of the Solicitor, 

u. s. Department of Labor, Chicago, Illinois, 

for the Secretary~ 

James rB. Wham, Es·q., Richard A. Cary, Esq., Wham & 

Wham, Centralia, Illinois, for Respondent. 

Before: Judge Weisberger 

Statement of the case 

The above consolidated cases are before me based upon proposals for civil penalities filed by the Secretary (Petitioner) 

for alleged violations by the Operator (Respondent) of various 

safety standards set forth in Volume 30 of the Code of Federal 

Regulations. The Respondent filed a Motion for Summary Decision, 

and Petitioner filed a Motion for Partial Summary Decision. 

Pursuant to a telephone conference call between Counsel for both 

Parties and the undersigned, at the request of Counsel, I met 

with Counsel at the site of Respondent's DAD Well No. 1 and 

observed its vertical shaft, on the morning of October 25, 1988. 

Pursuant to notice, on October 25 - 26, in Terre Haute, Indiana, 

and November 29, 1988, in Indianapolis, Indiana, a hearing was 

held solely for the purpose of allowing the Parties to present 

argument and evidence on the jurisdictional issues raised by the 

respective Motions for Summary Decision. At the hearing, Robert 

Earl Williams, Bernard Martin, and William Melcher testified for 

Respondent, and Raymond Roesler and Robert L. Ferriter testified 

for Petitioner. At the hearing, it was clarified by Counsel for 

both Parties that if the jurisdictional issues were to be decided 

474 
in favor of Respondent, then the cases should be dismissed. In 

the alternative, should the jurisdictional issues be determined 

in favor of Petitioner, then the cases should be set for hearing 

on the merits. . . At the conclusion of the-hearing, Counsel were directed to 

file Posthearing Briefs and Proposed Findings of Fact 3 weeks 

after receipt of the hearing transcript. Both Parties requested 

an extension to file briefs by February 6, and the request was 

granted. Petitioner filed its Proposed Findings of Fact and 

Conclusions of Law and Brief on February 8, 1989, and Respondent 

filed its Proposed Findings of Fact and Conclusions of Law and 

Brief on February 9, 1989. Subsequently, the Parties requested 

and were granted an extension until March 16 to file Reply 

Briefs, and Respondent filed its Answers to Petitioner's Brief on 

March 20, 1989,and Petitioner filed its Reply Brief on March 21, 

1989. 

Findings of Fact 

1. Respondent, Three Star Drilling and Production Company, 

is an oil company which owns three oil wells in Illinois. 

Respondent sells its oil to the oil Producers Association in 

Springfield, Illinois. 

2. Respondent is engaged in an oil recovery project known 

as the DAD Well No. 1 near Casey, in Cumberland County, Illinois. 

3. The DAD Well No. 1 is located irl the Siggins Field. 

Respondent has over 500 wells in this field that are "producers." 

4. The Upper Siggins is approximately 300 to 350 feet deep 

and the Lower Siggins is ~pproximately 500 to,550 feet deep. 

Between the Upper and Lower Siggins sand is a Stray sand that is 

approximately 412 to 427 feet deep. 

5. Primary and secondary recovery of oil in the Upper 

Siggins sand, and primary recovery of oil in the Lower Siggins 

sand have occurred •. 

6. Primary recovery is by drilling a well from the top of 

the ground and the result is that the oil gushes out. 

7. Secondary recovery is by pumping water into the oil 

reservoir which forces the oil to come out. 

8. ·Respondent proposes to extract oil from the Siggins oil 

field by direct access drilling. 

475 
9. The DAD Well No. 1 will be developed in two stages: 

a. mine shaft sinking; 

b. developing oil c;..ollector rooms. 

10. Respondent began excavating the shaft in October 1986. 

The shaft is 6 feet wide by 10 feet and 10 inches long, and as of 

November 29, 19 88, reached a depth of 38-4 feet below the surf ace. 

11. The mine shaft is deepened by drilling holes, loading 

the holes with explosives, blasting, and loading broken material 

into a hoist bucket with a Criderman mucking hoist. 

12. The shaft is lined with concrete as it is deepened. 

13. Employees are able to enter the shaft by riding a cage. 

The shaft has a ladder with a landing every 30 feet. It is used 

as an alternative method of exit from the shaft. 

14. A blowing syste~, which delivers ppproximately 30,000 

cubic feet of air a minute into the shaft, has been installed. 

The shaft has a 16 inch ventilation tube that is anchored to the 

walls. 

15. Respondent has installed a conduit for electricity and a 

water piping system~ 

16. All sur-face equipment such as hoists, hoist drums, c~bles, and headframes are typidal mine shaft equipment. 

17. Employees work underground drilling holes, loading the 

hole with explosives, and loading the muck into a bucket. 

18. A 24-foot circular oil collector room connected to the 

shaft, by a 20-foot tunnel, had been completed at the upper level 

of the Siggins Sand, 354 feet below the surface. 

19. Respondent used a roof bolting machine to install roof 

bolts in the tunnel and oil collector room. 

20. Respondent's plan for drilling involved the horizontal 

drilling of a number of holes in the walls of the oil collector 

room into the Siggins Sand formation. These 3 1/2-inch diameter 

horizontal holes will continue £or a distance of approximately 

800 feet. Each horizontal hole will be drilled, capped, and 

regulated by a remote control valve with a switch located in the 

hoist room or at the top of the shaft, both df which are'lo~ated 

above ground. These horizontal drill holes will be connected to 

476 
a common line running to a sump, and any oil flowing into the 

sump will then be pumped to the surface by a pump actuated by 

remote control from above ground. No oil will run out of the 

horizontal drill holes into the sump with men underground. Nor 

will there be men underground when the oil is pumped from the 

sump to the surface. ... 

21. DAD Well No. 1, is still under construction and there 

has been no oil produced nor drilling for oil commenced as of 

November 22, 1988, the date of the last evidentiary hearing. No 

product from DAD Well No. 1 has been sold to anyone. 

22. The excavation of the oil collector room required that 

employees work underground. 

23. After the development of the oil collector rooms, 

Respondent's employees might have to periodically work underground to replace pumps, unclog pipes, and drill long holes. 

During these procedures, the remote control valves, regulating 

the oil flow in the horizontal holes, will be shut off, and no 

oil will be extracted. 

24. The State of Illinois Division of Mines and Minerals has 

ordered Respondent to comply with Chapters 13, 14, and 19 of the 

Health and Safety Rules and Regulations found in the 1985 

Illinois Revised Statute, Chapter 96 1/2, paragraph 544023.3. 

Issues 

1. Whether Respondent's operation at DAD Well No.' 1 is a 

mine as defined in the Federal Mihe Safety and Health Act of 

1977. 

2. Whether Respondent's operation at the DAD Well No. 1 

affects commerce. 

3. Whether the Federal Mine Safety and Health Act of 1977 

is preempted by the 1985 Illinois Revised statute, Chapter 96 

1/2 Paragraph 5440 § 23.3. 

Discussion 

I. 

In evaluating whether Respondent's operation at the 

DAD Well No. 1 is subject t6 the Federal Mine Safety and Health 

Act of 1977 (the Act), and regulations promulgated thereunder, 

reference must be made to section 3 ( h )( 1) of the Act which, as 

pertinent, defines a mine as ••• "lands, evacuations, underground passage ways, shafts, slopes, tunnels and workings, 

477 
structures, facilities, equipment, machines, tools, or other 

property • • . on the surface or underground, used in, or to be 

used in, or resulting from, the work of extracting such materials 

from their natural deposits in nonliquid form, or if in liquid 

form, with workers undergrounsi, ... • . " 

It appears to be Respondent's main argument that lands, 

shafts, and equipment used in extracting liquid minerals, are not 

to be considered a mine unless workers are underground during the 

time when the liquid minerals are being extracted. Respondent 

then argues that the operation herein can not be considered a 

mine, inasmuch as the evidence clearly establishes that no oil 

will be extracted when workers are underground. In this connection, the record indicates that oil is not produced or extracted 

while men are underground engaged in construction of the shaft, 

horizontal holes, or collector rooms. Indeed, no oil will be 

produced until construction is completed. Also, once production 

has commenced, no workers will have any regular tasks underground. 

Should a worker have to go underground on occasion to replace a 

pump, all valves will be first closed from above ground, stopping 

the extraction of oil before men actually go underground. 

It is manifest that the language of section 3(h)(i), supra, 

does not clearly compel a conclusion, based on a plain reading of 

its words, that in order for an operation to be subject to the 

Act and be considered a mine, workers must be underground during 

the time when the liquid mineral is being extracted. The language of section 3(h)(i), supra, is also capable of being 

interpreted as encompassing in the definition of a mine, as in 

the case at bar, shaft and various equipment used in extracting 

liquid minerals with the additional requirement that workers be 

underground at sometime during the operation, but not necessarily 

concurrent with the limited activity of the oil being led into 

the pumps and pumped to the surface. Inasmuch as section 3Ch>Ci), 

supra, is capable of more than one construction, I place considerable weight on the legislative history of the Act, in determining 

how to interpret section 3(h)(i), supra. In this connection I note 

that Congress clearly intended that the coverage of the Act be as 

broad as possible. I find most instructive the following language, 

contained in the legislative history of the Act, with regard to 

Congressional intent to make the coverage of the Act as broad as 

possible. "The Committee notes that there may be a need to resolve 

jurisdictional conflicts, but it is the Committee's intention that 

what is considered to be a mine and to be regulated under this Act 

be given the broadest possible interpretation, and it is the intent 

of this Committee that doubts be resolved in favor of inclusion of 

a facility within the coverage of the Act." CS. Rep. No. 181, 

95th Cong., 1st Sess. 14 (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 602 (Legis. Hist.). I thus conclude that to adopt the 

478 
narrow construction urged by Respondent would be violative of 

Congressional intent. Indeed, taking into account the very strong 

Congressional declaration, as contained in section 2 of the Act, 

that, with regard to the purpose of the Act, its first priority" • 

• • must be the health and s~~ety of its most precious resource -

the miner;", it would not seem logical for one working underground 

here in the construction of the shaft or one of its collector 

rooms, or in the replacing of a pump, not to be covered by the 

protections afforded in the Act, merely because the worker was not 

present concurrent with the physical pumping of the oil to the 

surface. It is clear that the shafts and collector rooms, where 

workers are presently located underground, are being developed for 

the purpose of extracting oil.l/ I thus conclude that Respondent's 

operation at DAD Well No. 1 is-a mine within the purview of the 

Act. 

II. 

Section 4 of the Act, in essence, provides that a mine 

whose products enter commerce or whose" ..• operations or 

products of which affect commerce," shall be subject to the Act. 

Respondent, based on the uncontroverted evidence of record, 

argues that inasmuch as its operation, at DAD Well No. 1, is not 

yet producing any oil, it does not have any product which is 

entering commerce. The record supports Respondent's contention 

in this regard. However, Respondent is still under the jurisdiction of the Act if it is established that its operations "affect 

commerce." In this connection, it appears to be Respondent's 

argument, that inasmuch as its operation is in a speculative 

stage, and there is no assurance that oil will ever be prod~ced, 

it has not been established that its operation has any affect on 

commerce. 

In Godwin v. OSHRC, 540 F.2nd 1013 (9th Cir., 1976), the 

Court of Appeals was faced with a factuai situation similar to 

the case at bar. In Godwin, supra, the Court had to consider 

whether the activity of clearing land for the purpose of growing 

grapes was included within the purview of the Occupational Safety 

and Health Act of 1970 (29 u.s.c. § 651 et seq.), which provides 

that, in general, an employee is subject to the Act if his activities "affect commerce," 29 u.s.c. § 652(6), which is the same 

language as contained in Section 4 of the Act. The Court in 

Godwin, supra, essentially held that the clearing of the land for 

the purpose of growing grapes will adversely affect commerce if 

performed under unsafe conditions. The Court, at 1016, supra, 

!/ Although the testimony of Respondent's witness indicates that 

if ultimately the extraction of oil is proved not feasible, then 

the shaft and appurtenances, will be used for the storage of 

waste, it is their present primary purpose, as a first step in 

the extraction of oil, which is deemed critical. 

479 
held as follows: "Clearing land is an integral part of the 

manufacturing of wine, and therefore commerce is affected by the 

activity." C Emphasis added) • ~./ 

Similarly, in the case at bar, the sinking of the shaft and e~cavating of the oil collector room, the activities presently 

being engaged in, are integral parts of the activity of the 

recovery of oil from the Siggins Field, and as such, commerce is 

affected by the present activities. (See also, Secretary v. Sun 

Landscaping and Supply Company 2 FMSHRC 975 (April 1980) Ca 

company that had been in operation for 3 days intending to mine 

marble, crush it and sell it, and was engaged in crushing marble 

on the day of the inspection was held to be covered by the Act 

based upon its current activity and future intentions; see also, 

Secretary v. Bradford Coal Company, Incorporated, 3 FMSHRC 1567 

(June 1981), where it was found that the business of building 

coal preparation plants was a class of activity the cumulative 

effect of which affected interstate commerce). I therefore find 

that Respondent's operation at DAD Well No. 1 does affect interstate commerce, and is thus within the jurisdiction of the Act. 

III. 

Respondent, in essence, has raised the issue that the regulation of its mine by MSHA is improper inasmuch as the State of 

Illinois has maintained jurisdiction over the project from its 

commencement to the present. It is clear that any State of 

Illinois regulations, with regard to signaling during the operation of the hoist in the shaft, or with regard to any other aspect 

of Respondent's operation, do not preempt the Act. Section 506 of 

the Act permits concurrent State and Federal regulation, but under 

2/ The gravamen of Respondent's argument, that its present operations are only speculative and therefore can not affect commerce, 

was fully considered by Judge Ely, in a concurring opinion, in 

Godwin, supra. Judge Ely found it "almost inconceivable" for an 

accident at an early stage of an operation to have a nexus with 

interstate commerce where any number of circumstances could have 

prevented the fulfillment of the eventual objective. Indeed, 

Judge Ely stated as follows: "To me, it is virtually unthinkable 

that the Founding Fathers could have foreseen the extent to which 

an increasingly expansive interpretation of the commerce clause 

could so infringe local authority." (Godwin, surpa, at 1017). 

However, nonetheless, Judge Ely reluctantly concurred in the 

majority decision and did not feel that he could conscientiously 

dissent in light of Wickard v. Filburn, 317 U.S. 111, (1942), 

Farmer's Irrigation Company v. McComb, 337 U.S. 755 (1949), and 

Hodgson v. Ewing, 451 F.2d 526 CSth Cir., 1971). 

480 
the Federal Supremacy Doctrine, a State Statute is void to the 

extent that it conflicts with a valid Federal Statute. Dixy Lee 

Ray v. Atlanta Richfield Comp~ny, 435 U.S. 151 1978. 

Accordingly, it is held that Respondent's contention in this 

regard is without merit. 

ORDER 

Inasmuch as it is found that Respondent's operation at the 

DAD Well No. 1 is subject to the jurisdiction of the Act, it is 

ORDERED that these cases be scheduled for hearing on the 

merits.~/ 

Avram Weisberger 

Administrative Law Judge 

3/ I do not find Respondent's arguments persuasive th~t the 

decision herein should not be applied retroactively. Should the 

finding of jurisdiction be applied only prospectively, the burden 

already suffered by Respondent, i.e. being caught between the 

jurisdiction of the State of Illinois and MSHA and being subject 

to double inspections would not be effected. It is true that as 

~result of a retroactive application of the Act's jurisdiction, 

Respondent might become liable for civil penalties for violations 

of federally mandatory safety standards set forth in 30 C.F.R, 

et. ~ which alleg~dly occurred d~r~ng the retroactive period. 

However, these penalties should be mitigated, as the record 

indicates Respondent acted in good faith in believing it was not 

subject to the jurisdiction of the Act, and hence did not act 

with any significant degree of negligence in not conforming with 

any federally mandated safety standards. 

I reject the remainder of Respondent's arguments and find 

that the overriding purpose of the Act, i.e., the protection of 

miners, is best furthered by not limiting the jurisdiction of the 

Act to a prospective application. 

481 
Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, u. S. Department 

of Labor, 230 South Dearborn Street, 8th Floor, Chicago,· IL 60604 

(Certified Mail) 

James B. Wham, Esq., Wham & Wham, 212 E. Broadway, P. O. Box 549, 

Centralia, IL 62801 (Certified Mail) 

dcp 

482 

'f: U.S. GOVERNMENT PRINTING OFFICE: 1989- 2 4 1 - 1 5 5 I 0 4 7 5 4