FEBRUARY 1992 

COMMISSION DECISIONS & QRDERS 

02-11-92 

02-11-92 

02-18-92 

02-19-92 

02-26-92 

Peters & Garman Construction 

Peters & Garman Construction 

Mettiki Coal Corporation 

Contest of Respirable Dust Samples 

Ronny Boswell v. National Cement Co. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

01-31-92 

02-04-92 

02-04-92 

02-10-92 

02-10-92 

02-11-92 

02-12-92 

02-12-92 

02-12-92 

02-12-92 

02-14-92 

02-14-92 

02-14-92 

02-18-92 

02-19-92 

02-19-92 

02-19-92 

02-19-92 

02-20-92 

02-21-92 

02-21-92 

02-21-92 

02-24-92 

02-25-92 

02-25-92 

Clifford Meek v. Essroc Corporation 

Consolidation Coal Company 

Consolidation Coal Company 

Highlands County Board of Commissioners 

Larry E. Swift v. Consolidation Coal Co. 

Navasota Mining Co., Inc. 

Walker Coal Company 

Zeigler Coal Company 

Jeddo-Highland Coal Company 

U.S. Steel Mining Company 

Zeigler Coal Company 

Zeigler Coal Company 

UMWA on behalf of Dan Nelson v. MSHA and 

Robert Kiykendall 

Robert Shick employed by Muncie Sand & Gravel 

Mountaineer Coal Company 

The Pittsburg & Midway Coal Mining Company 

Larry E. Swift, Mark Snyder & Randy 

Cunningham v. Consolidation Coal Company 

Betty B Coal Company, Inc. 

Peters & Garman Construction 

Sec. Labor for Amos Hicks v. Cobra Mining, 

Inc., Lester & Carter Messer 

Ford Construction Company 

T & H Coal Company, Inc. 

Richard Sierra v. Phelps Dodge Corporation 

C.W. Mining Company 

Sec. Labor for Clayton Lawson, et al v. 

Cumberland Valley Cdntractors 

ADMINISTRATIVE LAW JUDGE ORDERS 

02-21-92 

02-21-92 

02-21-92 

02-27-92 

S & 1 Coal Company 

CNB Coal Company, Inc. 

Manalapan Mining Company, Inc. 

Contest of Respirable Dust Samples 

WEST 91-87-M Pg. 247 

WEST 91-370-M Pg. 249 

YORK 89-10-R Pg. 251 

No. 91-1 Pg. 252 

SE 90-112-DM Pg. 253 

LAKE 90-132-D 

WEVA 91-210-R 

WEVA 91-1980 

SE 91-660-M 

PENN 90-198-D 

CENT 91-101 

KENT 91-1113 

LAKE 91-636 

PENN 91-1295 

WEVA 91-819 

LAKE 91-683 

LAKE 91-684 

SE 88-82...:.D 

Pg. 263 

Pg. 265 

Pg. 267 

Pg. 270 

Pg. 294 

Pg. 295 

Pg. 303 

Pg. 304 

Pg. 329 

Pg. 330 

Pg. 335 

Pg. 336 

Pg. 337 

LAKE 91-64-M Pg. 340 

VA 91-413-R Pg. 344 

CENT 91-54 Pg. 346 

PENN 91-1038-D Pg. 361 

VA 91-410-R 

WEST 91-87-M 

VA 89-72-D 

. 368 

Pg. 370 

Pg, 371 

WEST 90-346-M Pg. 373 

KENT 91-1285 Pg. 394 

CENT 91-200-DM . 395 

WEST 91-245 • 396 

KENT 91-901-D Pg. 401 

KENT 91-1085 

KENT 91-1087 

KENT 91-1129 

No. 91-1 

Pg. 403 

Pg. 405 

Pg. 407 

Pg. 410 

FEBRUARY 1992 

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

Secretary of Labor, MSHA v. Peters & Garman Construction, Docket Nos. 

WEST 91-87-M, WEST 91-370-M. (Chief Judge Merlin, Default Orders of 

June 17, 1991 and January 2, 1992 - unpublished). 

Review was denied in the following cases during the month of February: 

Mettiki Coal Corporation v. Secretary of Labor, MSHA, Docket Nos. 

YORK 89-10-R, 89-26. (Reconsideration of Commission decision of 

January 10, 1992). 

Wayne Turner v. New World Mining, Docket No. VA 90-51-D. (Judge 

Weisberger, March 28, 1991) 

David Stritzel v. MSHA, Charles Rath & Mark 0. Eslinger, Docket No. 

LAKE 91-633-D. (Judge Fauver, January 21, 1992) 

COMMISSION DECISIONS/ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PETERS & GARMAN CONSTRUCTION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 11, 1992 

Docket No. WEST 91-87-M 

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

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act"), Commission Chief 

Administrative Law Judge Paul Merlin issued an Order of Default on June 17, 

1991, finding respondent Peters & Garman Construction ("P&G") in default for 

failure to answer the civil penalty petition filed by the Secretary of Labor 

and the judge's order to show cause. The judge assessed the civil penalty of 

$227 proposed by the Secretary. For the reasons that follow, we vacate the 

default order and remand this case for further proceedings. 

On January 28, 1992, the Commission received a letter dated January 22, 

1992, in which counsel for the Secretary requests, on behalf of both parties, 

that Judge Merlin rescind the previously issued default order and enter an 

order confirming the settlement agreement negotiated between the parties. 

Counsel for the Secretary explains that he was delayed in submitting the 

settlement agreement because respondent's counsel was temporarily out-ofstate. 

The judge's jurisdiction over this case terminated on June 17, 1991, 

when his decision was issued. 29 C.F.R. § 2700.65(c). Under the Mine Act and 

the Commission's procedural rules, relief from a judge's decision may be 

sought by filing a petition for discretionary review with the Commission 

within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 

2700.70(a). P&G did not file a timely petition for discretionary review 

within the 30-day period, nor did the Commission direct review on its own 

motion. 30 U.S.C. § 823(d)(2)(B). Thus, the judge's decision became a final 

decision of the Commission 40 days after its issμance. 30 U.S.C. § 823(d)(l). 

Under these circumstances, we deem the January 22 letter to be a request 

for relief from a final Commission decision and to incorporate a late-filed 

petition for discretionary review. See J.R. Thompson, Inc., 12 FMSHRC 1194, 

1195-96 (June 1990). Relief from a final judgment is available to a movant 

under Fed. R. Civ. P. 60(b)(l) on the basis of mistake, inadvertence, surprise 

247 
or excusable neglect. ~.Lloyd Logging. Inc., 13 FMSHRC 781, 782 (May 

1991). It appears that an explanation for P&G's failure to respond to the 

judge's order to show cause may have been raised and that the parties have 

been engaged in settlement negotiations. We are unable to evaluate the merits 

of the explanation on the basis of the present record. We will afford P&G the 

opportunity to present its position to the judge·. See, ~. Blue Circle 

Atlantic, Inc., 11 FMSHRC 2144, 2145 (November 1989). If the judge determines 

that final relief from default is appropriate, he shall also take appropriate 

action with respect to the parties' settlement agreement. 30 U.S.C. § 820(k). 

Accordingly, we vacate the judge's default order and remand this matter 

for proceedings consistent with this order. 

Distribution: 

George B. O'Haver, 

Office of the Solicitor 

U.S. Department of Labor 

71 Stevenson St., Rm. 1110 

San Francisco, CA 94105-2999 

Dan Bagley, Office Manager 

Peters & Garman Construction Co. 

266 Shell Lane 

Willits, CA 95490 

Bernard C. DePaoli, 

619 Fifth Street 

Eureka, CA 95501 

L. Clair Nelson, Commissioner 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

248 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

PETERS & GARMAN CONSTRUCTION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

February 11, 1992 

Docket No. WEST 91-370-M 

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

ORDER 

BY THE COMMISSION: 

In this proceeding arising under the· Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act"), Commission Chief 

Administrative Law Judge Paul Merlin issued an Order of Default on January 2, 

1992, finding respondent Peters & Garman Construction ("P&G") in default for 

failure to answer the civil penalty petition filed by the Secretary of Labor 

and the judge's order to show cause. The judge assessed the civil penalty of 

$40 proposed by the Secretary. For the reasons that follow, we vacate the 

default order and remand this case for further proceedings. 

On January 28, 1992, the Commission received a letter dated January 22, 

1992, in which counsel for the Secretary requests, on behalf of both parties, 

that Judge Merlin rescind the previously issued default order and enter an 

order confirming the settlement agreement negotiated between the parties. 

Counsel for the Secretary explains that he was delayed in submitting the 

settlement agreement because respondent's counsel was temporarily out-ofstate. 

The judge's jurisdiction over this case terminated on January 2, 1992, 

when his decision was issued. 29 C.F.R. § 2700.65(c). Under the Mine Act and 

the Commission's procedural rules, relief from a judge's decision may be 

sought by filing a petition for discretionary review with the Commission 

within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. 

§ 2700.70(a). Here, the letter received by the Commission on January 28, 

1992, seeks relief from the judge's default order. We will treat that letter 

as a timely petition for discretionary review of the judge's default order. 

See,~. Middle States Resources, Inc., 10 FMSHRC 1130 (September 1988). 

249 
It appears from the record that an explanation for P&G's failure to 

respond to the judge's order to show cause may have been raised and that the 

parties have been engaged in settlement negotiations. We are unable to 

evaluate the merits of the explanation on the basis of the present record. We 

will afford P&G the opportunity to present its position to the judge. 

~. Blue Circle Atlantic. Inc., 11 FMSHRC 2144, 2145 (November 1989). If 

the judge determines that final relief from default is appropriate, he shall 

also take appropriate action with to the parties' settlement 

agreement. 30 U.S.C. § 820(k). 

Accordingly, we grant P&G's petition for discretionary review, vacate 

the judge's default order, and remand this matter for proceedings consistent 

with this order. 

~~£L 

~Jr: Ir"'~-~~ Richard V. 

Arlene Holen, Commissioner 

~I~ L. Clair Nelson, Commissioner 

250 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

METTIKI COAL CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 18, 1992 

ORDER 

Docket Nos. YORK 89-10-R 

YORK 89-26 

On January 10, 1992~ the Commission issued its decision in this case and 

remanded the proceeding to the presiding administrative law judge. On February 

3, 1992, Mettiki filed with the Commission a Petition for Reconsideration. See 

29 C.F.R. § 2700.75. On February 10, 1992, the Secretary of Labor filed a 

response. Upon consideration of Mettiki' s petition and the Secretary's response, 

the Petition for Reconsideration is denied. 

L. Clair Nelson, Commissioner 

251 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 19, 1992 

IN RE: CONTESTS OF RESPIRABLE DUST 

SAMPLE ALTERATION CITATIONS MASTER DOCKET NO. 91-1 

ORDER 

On November 13, 1991, the Commission granted petitions filed by the 

Secretary of Labor and the contestants represented by the law firm of Jackson 

& Kelly, for interlocutory review of orders entered by Commission 

Administrative Law Judge James A. Broderick in these proceedings. Petitioners 

have filed their briefs and respon~~ briefs. On January 9, 1992, contestants 

Great Western Coal (Kentucky) Inc., Great Western Coal, Inc., and Harlan Fuel 

Company filed a motion to join in the briefs filed by Jackson & Kelly. These 

contestants did not join in Jackson & Kelly's petition for interlocutory 

review and have not previously sought to participate in this interlocutory 

proceeding. 

These contestants do not attempt to explain in their motion why they 

waited until all briefs were filed to seek to participate in this . 

interlocutory review proceeding. They have been aware of this appeal since it 

was filed and could reasonably have sought to participate on a more timely 

basis. Parties who wish to participate in appeals to this Commission must do 

so promptly after review has been granted. See In re: Contests of Respirable 

Dust Sample Citations, 14 FMSHRC , No. 91-1 (January 14, 1992); see 

generally Mid-Continent Resources. Inc., 12 FMSHRC 2399, 2404-05 (December 

1989). 

Accordingly, the above-referenced motion to join in the briefs filed by 

Jackson & Kelly is denied. 

For the Commission: 

~~ ~~ Chairman 

252 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RONNY BOSWELL 

v. 

NATIONAL CEMENT COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 26, 1992 

Docket No. SE 90-112-DM 

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

DECISION 

BY THE COMMISSION: 

This discrimination proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq .. (1988)("Mine Act"). National 

Cement Company ("National Cement") seeks review of a decision by Commission 

Administrative Law Judge Roy J. Maurer concluding that National Cement 

unlawfully disqualified Ronny Boswell from his position as a utility laborer 

in violation of section lOS(c) of the Mine Act, 30 U.S.C. § 815(c). 13 FMSHRC 

207 (February 199l)(ALJ). The Commission granted National Cement's petition 

for discretionary review. For the reasons that follow, we affirm the judge's 

decision in part, vacate it in part, and remand. 

I. 

Factual and Procedural Background 

At the time of the alleged discrimination, Boswell had worked for 

National Cement at its cement plant in Ragland, Alabama, for about 14 years, 

including ten years in the position of utility laborer. During the preceding 

six years, and at the time of the events in question, his supervisor was James 

Allen. 

National Cement disqualified Boswell from his position as a utility 

laborer pursuant to a "Disciplinary Action Report" ("Report") dated January 

11, 1990. The Report indicated five grounds for Boswell's disqualification: 

(1) a kiln incident on August 8, 1989; (2) a clay shredder incident on October 

1 and 2, 1989; (3) a radio incident on October 22, 1989; (4) a kiln incident 

on December 22, 1989; and (5) a bobcat and wheelbarrow incident on January 1, 

1990. 

With respect to the kiln incident of August 8, 1989, Boswell and Allen 

presented conflicting versions at the hearing. The judge credited Boswell's 

account. 13 FMSHR.C at 208-09. On the day in question, two miners had been 

working in the kiln, tearing down brick and coating. Allen directed three 

other employees, including Boswell, to enter the kiln and throw the debris 

253 
back up the kiln. 13 FMSHRC at 208-09. Boswell testified that, at the time 

of the incident, he believed it was unsafe to have more than two miners at a 

time working in the kiln when pulling down brick and coating. Tr. 20-21. 

Boswell refused Allen's direction to go inside the kiln and requested a safety 

review. 1 The company subsequently dropped the matter and the three miners, 

including Boswell, were not required to enter the kiln. 

In the clay shredder incident of October 1, 1989, Allen asked Boswell to 

operate the shredder. 2 Boswell replied that he did not want to operate it 

because he had never used it before, had no knowledge of how it worked, and 

had never received any training in its operation. Allen then told Boswell 

that he was willing to show Boswell how to operate the machine. Boswell 

responded that he would not "be responsible .•• for what tears up. 11 Tr. 27. 

After further discussing the matter with Boswell, Allen assigned Boswell to 

another task. The following day, Allen again asked Boswell to run the 

shredder. Boswell testified that "about the same thing happened" as had 

occurred the previous day. Tr. 27. Eventually Allen started the shredder and 

Boswell agreed to watch it run. 13 FMSHRC at 209-10. 

As to the radio incident of October 22, 1989, Allen testified that he 

tried to call Boswell on the radio and received no answer. Allen then went 

looking for Boswell and found him on the eighth floor of the preheating tower 

"sitting with the radio on." Tr. 103, 128. Allen testified that he then 

asked Boswell if he had heard him calling on the· radio and Boswell said he had 

not. Allen then checked the radio and it seemed to be in working order. 

Tr. 104. In contradiction, Boswell testified that no such incident had 

occurred, and that he was not at work on October 22, 1989. Tr. 28-29, 30, 31. 

See also N.C. Exh. 4. Allen conceded the date could be incorrect but stated 

that the incident had occurred. Tr. 127. 

In the kiln incident of December 22, 1989, Boswell worked at the hood of 

the kiln for about eight hours, installing beams and building a platform. He 

testified that he had been having ear problems for a month and the cold made 

his ears worse. Boswell told Allen about his ears and was excused. 

The bobcat and wheelbarrow incident of January 1, 1990, arose when Allen 

directed Boswell to use a bobcat to remove steel mill grinding balls from the 

1 Under the collective bargaining agreement at the mine, a miner has the 

right to call for a safety review if he believes that a situation is unsafe, and 

cannot be disciplined for refusing to perform an unsafe task. Under the safety 

review procedure, representatives of the union and company meet to review the 

situation. If the two sides cannot agree, they may request a review by the 

Department of Labor's Mine Safety and Health Administration. 

2 Clay is typically encountered in large chunks. At National Cement's 

mine, the clay is carried up a conveyor belt, dumped into a revolving tub, and 

shredded. Tr. 26. 

254 
mill basement. 3 The task involved traveling on a 20 to 30 degree inclined 

concrete ramp that was strewn with loose clinkers. The ramp was 12 feet wide 

and 30 to 40 feet long. There were six to eight inches of water at the bottom 

of the ramp in a ditch with a metal-eared safety barrier. Boswell responded 

that it was unsafe for him to operate the bobcat because he had no training on 

the machine. Allen then told Boswell to use a wheelbarrow to perform the task 

and Boswell refused on the grounds that it was unsafe to push the wheelbarrow. 

Allen testified that he then explained to Boswell various ways of performing 

the task safely. Boswell called for a safety review but Allen dropped his 

request and sent Boswell to push rock for the balance of the shift. 

On January 11, 1990, management and union officials met to discuss 

Boswell's job performance. Boswell was then advised that, based on the five 

incidents referenced in the Report, he was disqualified as a utility laborer 

due to his unsatisfactory performance. National Cement decided that Boswell 

would be permitted to "roll" to another job. Boswell elected to roll to the 

job of payloader operator, which paid a base rate of $12.50 per hour. The 

utility laborer's job paid a base rate of $13.58 per hour. 

On February 26, 1990, Boswell filed a discrimination complaint with the 

Mine Safety and Health Administration ("MSHA") based on the disqualification. 

By letter dated May 4, 1990, MSHA notified Boswell that it had determined that 

he had not been discriminated against in violation of section lOS(c) of the 

Mine Act, 30 U.S.C. § 815(c). On June 18, 1990, Boswell filed a complaint 

with the Commission pursuant to section 105(c)(3) of the Act, 30 U.S.C. 

§ 815(c)(3). 

National Cement filed a motion to dismiss Boswell's complaint as 

untimely, on the basis that it had been filed with the Commission more than 30 

days after MSHA's determination that no discrimination had occurred. 4 The 

judge summarily denied the motion on the grounds· that the filing time was not 

jurisdictional. Tr. 13. On the merits, National Cement primarily argued that 

Boswell 1 s disqualification was justified by the five incidents set forth in 

the Report. National Cement also provided testimony and other evidence to the 

effect that Boswellqs prior work history was poor and that the underlying 

cause of the problem was the fact that Boswell and Allen could not get along. 

The judge determined that Boswell had engaged in protected activity. 

13 FMSHRC at 213. With regard to the kiln incident of August 8, 1989, the 

judge found that Boswellrs refusal to work and his request for a safety review 

3 The bobcat is a four-wheeled vehicle with a bucket in front that is used 

to pick up, transport, and dump loose material. The vehicle does not have a 

steering wheel and is operated with hand and foot controls. See Tr. 34. 

4 In relevant part, section 105(c)(3) of the Mine Act provides: "If the 

Secretary, upon investigation, determines that the provisions of [section 105(c)] 

have not been violated, the complainant shall have the right, within 30 days of 

notice of the Secretary's determination, to file an action in his own behalf 

before the CoIIllilission, charging discrimination or interference .... " 30 U.S.C. 

§ 815(c)(3). 

255 
were made in good faith and were reasonable and, hence, were protected. 

13 FMSHRC at 209, 213. In reaching his conclusion, the judge also relied on 

the testimony of James Noah, a fellow employee, who testified that he informed 

National Cement's safety director that, if Boswell had not requested the 

safety review, he would have. 13 FMSHRC' at 209. The judge found that the 

work Boswell was scheduled to perform was "patently unsafe." 13 FMSHRC at 

213. 

The judge further determined that Boswell's refusal to work in the 

bobcat and wheelbarrow incident of January 1, 1990, was a protected work 

refusal, and that his request.for a safety review was also protected activity. 

13 FMSHRC at 213. The judge found that Boswell had very limited experience 

operating the bobcat, and no experience operating it on a 20 degree slope. 

Id. In addressing Allen's wheelbarrow alternative, the judge noted that the 

results of a safety review were unknown because Boswell's request was not 

acted upon and Boswell was given another assignment. Id. 

The judge concluded that Boswell's disqualification was motivated, "at 

least in major part," by his protected activity. 5 13 FMSHRC at 213. Based on 

that conclusion, he found .that Boswell was discriminated against in violation 

of the Mine Act. Id. The judge held that Boswell was entitled to 

reinstatement to his former position as utility laborer and to have his 

personnel file purged of any derogatory information pertaining to his 

disqualification. 13 FMSHRC at 215. The judge found that Boswell was not 

entitled to any back pay because, as a result of 56 more hours worked, he had 

earned $919.54 more as a payloader operator than he would have earned as a 

utility laborer. 13 FMSHRC at 214-15. 

On review, National Cement argues that the judge erred in not dismissing 

Boswell's complaint because of its untimely filing. It contends that 

Boswell's refusal to use the wheelbarrow to remove the steel balls from the 

mill basement was not protected activity and justified his disqualification 

and transfer. National Cement also argues that the judge erred in failing to 

address its defense that, notwithstanding Boswell's alleged protected 

activity, it would have disqualified and transferred him in any event based on 

his prior work history and his poor job performance. It points to the judge's 

failure to address Boswell's poor working relationship with Allen and his 

other work history, apart from the incidents listed in the Report. Finally, 

National Cement asserts that Boswell's disqualification and transfer were not 

adverse actions, since Boswell actually earned more as a payloader operator. 

5 The judge found no protected activity involved in the other three 

incidents discussed in the Report. With regard to the clay shredder incident, 

the judge did not find any protected activity on Boswell's part nor did he find 

any unprotected justification for disqualifying Boswell based on this incident. 

13 FMSHRC at 210. With respect to the radio incident of October 22, 1989, the 

judge found the evidence that the incident actually occurred to be extremely 

weak. Id. The judge determined that the kiln incident of December 22, 1989, 

neither helped nor hurt either party. 13 FMSHRC at 211. 

256 
II. Disposition of Issues 

A. Timeliness of Boswell's discrimination complaint 

We affirm the judge's denial of National Cement's motion to dismiss 

Boswell's complaint. The Commission has made clear that the filing periods 

for section 105(c) discrimination complaints are not jurisdictional in nature. 

See. e.z., David Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (January 

1984), aff'd mem. 750 F.2d 1093 (D.C. Cir. 1984) (table) (60-day time limit 

under section 105(c)(2) of the Mine Act, 30 U.S.C. § 81S(c)(2), for miner to 

file discrimination complaint with the Secretary); Secreta:r:y on behalf of 

Donald R. Hale v. 4-A Coal Co., 8 FMSHRC 905, 908 (June 1986)(Secretary of 

Labor's filing responsibilities). Thus, on a case-by-case basis, the 

Commission may excuse filing delays in appropriate circumstances. See Hollis, 

6 FMSHRC at 24. 

Under section 105(c)(3) of the Mine Act, Boswell was required to file 

his complaint "within 30 days of notice of the Secretary's determination" of 

no discrimination. The statute makes clear that the time for filing begins to 

run upon "notice" of the Secretary'·s action. Here, the record does not 

indicate when Boswell act\ially received MSHA's May 4, 1990, letter notifying 

him of its determination but, assuming three days for its receipt through the 

mail, Boswell's complaint, filed on June 18, 1990, was at most, 12 days late. 

The record also shows that on June 6, 1990, Boswell erroneously mailed his 

complaint to MSHA at its Arlington, Virginia, office and that MSHA forwarded 

it to the Commission. 

Under these circumstances, we conclude that the lateness of Boswell's 

filing was de minimis and appears to have resulted, at least in part, from 

mistake, inadvertence, or excusable neglect. Most significantly, National 

Cement has shown no prejudice in connection with this brief delay (~Hale, 

8 FMSHRC at 909), nor has there been any showing that Boswell knowingly 

slumbered on his rights. Cf. Hollis, 6 FMSHRC at 25. Accordingly, Boswellgs 

late filing is excused. 

B. The Alleged Discrimination 

The Commission has long held that a miner seeking to establish a prima 

facie case of discrimination under section lOS(c) of the Mine Act bears the 

burden of persuasion that he engaged in protected activity and that the 

adverse action complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-

2800 (October 1980), rev'd on other grounds. sub nom. Consolidation Coal Co. 

v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); and Secreta:r:y on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRG 803, 817-18 (April 1981). The 

operator may rebut the prima facie case by showing either that no protected 

activity occurred or that the adverse action was in no part motivated by any 

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

manner, it may nevertheless defend affirmatively by proving that it would have 

taken the adverse action in any event on the basis of the miner's unprotected 

activity alone. Pasula, supra; Robinette, supra. See also Eastern Assoc. 

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

257 
Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 

F.2d 194, 195-96 (6th Cir. 1983)(specifically approving the Commission's 

Pasula-Robinette test). Cf. NLRB v, Transportation Management Cor.p., 462 U.S. 

393, 397-413 (1983) (approving nearly identical test under National Labor 

Relations Act). 

1. Protected Activity 

The judge found that Boswell engaged in two instances of protected 

activity: (1) his work refusal and request for a safety review in the kiln 

incident of August 8, 1989; and (2) his work refusal and request for a safety 

review in the bobcat and wheelbarrow incident of January 1, 1990. National 

Cement argues on review that the judge erred in finding that Boswell engaged 

in protected activity in connection with his refusal to use the bobcat and 

wheelbarrow to remove the steel balls from the mill basement on January 1, 

1990. 

For a work refusal to come within the protection of the Mine Act, the 

miner must have a good faith, reasonable belief that the work in question is 

hazardous. See generally,_ Robinette, 3 FMSHRC at 807 -12. In determining 

whether the miner's belief in a hazard is reasonable, the judge must look to 

the miner's account of the conditions precipitating the work refusal and also 

to the operator's response. An operator has an obligation to address the 

danger perceived by the miner. Secretary on behalf of Pratt v. River 

Hurricane Coal Company. Inc., 5 FMSHRC 1529, 1534 (September 1983); Secretary 

of Labor v. Metric Constructors. Inc., 6 FMSHRC 226, 230 (February 1984), 

aff'd sub nom. Brock v. Metric Constructors. Inc., 766 F.2d 469 (11th Cir. 

1985). As stated in Gilbert v. FMSHRC, 866 F.2d 1433 (D.C. Cir. 1989), once 

it is determined that a miner has expressed a good faith, reasonable concern, 

the analysis shifts to an evaluation of whether the operator has addressed the 

miner's concern "in a way that his fears reasonably should have been quelled. 

In other words, did management explain to [the miner] that the problems in his 

work area had been corrected?" 866 F.2d at 1441. See also Secretary on 

behalf of Bush v. Union Carbide Cor.p., 5 FMSHRC 993, 997-99 (June 1983); 

Thurman v. Queen Anne Coal Co., 10 FMSHRC 131, 135 (February 1988), aff'd, 866 

F.2d 431 (6th Cir. 1989)(table). Accordingly, a miner's continuing refusal to 

work may become unreasonable after an operator has taken reasonable steps to 

dissipate fears or ensure the safety of the challenged task or condition. 

National Cement's argument suggests that by itself Boswell's refusal to 

use the bobcat was outside the Act's protection but the thrust of its argument 

focuses on the wheelbarrow aspect of that work dispute. With respect to the 

bobcat incident, the judge concluded that Boswell's work refusal was 

protected. 13 FMSHRC at 213. we are satisfied that substantial evidence 

supports the judge's finding. Boswell had very limited experience operating 

the bobcat and none on a 20 degree slope. Tr. 34-36. Boswell testified that 

he was afraid to run the bobcat and that it was unsafe for him to attempt to 

do so. Tr. 34-36. See also Tr. 83-84. Boswell indicated in his written 

response to the Report that he had never been trained to operate the bobcat, 

and that he might have run it on flat ground for a total of eight hours. N.C. 

Exh. 4. See also Tr. 35-36. National Cement did not provide training for 

operation of a bobcat. Tr. 35, 84. We agree with the judge that Boswell's 

258 
refusal to operate this equipment under the conditions involved lies within 

the zone of protected activity. 

National Cement's principal challenge to the judge's finding of 

protected activity centers on the wheelbarrow dispute. As noted, after 

Boswell refused to operate the bobcat, Allen then directed him to use a 

wheelbarrow to remove the steel balls. When Boswell refused because of the 

clinkers on the ramp, Allen told Boswell to sweep it off. Allen also offered 

help to Boswell in removing the steel balls and told Boswell that he could 

carry loads as small as ten pounds. The operator argues that, under these 

circumstances, its direction to use the wheelbarrow did not require 

performance of an unsafe task, and that the judge failed to address the 

reasonableness of its response to Boswell's continuing work refusal. 6 

Boswell testified that the danger presented was the clinkers on the 

ramp, which, in his view, made it difficult to get traction while walking up 

the incline. Allen testified that he told Boswell to "move the clinker[s) 

from the ramp" and "sweep it down [so that] you have a flat surface." Tr. 85. 

The judge did not address Allen's testimony in this regard, nor did he discuss 

Allen's testimony that Bo~well was~told someone would be sent to help him 

remove the steel balls with the wheelbarrow and that he could carry loads of 

about ten pounds in the wheelbarrow. Tr. 84-85. 

Thus, there is testimony in the record that suggests National Cement may 

have adequately addressed the fears giving rise to Boswell's work refusal and 

that, therefore, his continued work refusal may no longer have been 

reasonable. If so, his work refusal lost its protected status and could 

provide a legitimate justification for Boswell's disqualification and transfer 

as well as the basis for an affirmative defense. We express no view as to 

whether Boswell's fears were quelled. We conclude, however, that the judge 

should reconsider his findings in view of the testimony referred to above and . 

any other relevant evidence of record and determine whether Boswell's fears 

were adequately addressed by National Cement. 

2. Adverse action 

National Cement argues that no adverse action was taken against Boswell 

because he earned more in the job to which he transferred than he would have 

earned as a utility laborer. We disagree. The Report specifically states 

that Boswell was disqualified as a utility laborer due to unsatisfactory 

performance and that he was reprimanded. It states further that, in order to 

avoid discharge, the employee should review his work performance history. 

This Report clearly constitutes an adverse action subjecting Boswell to 

discipline or detriment in his employment. See generally Secretary on behalf 

of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-48 (August 1984). 

6 National Cement does not argue that the judge erred in finding that 

Boswell's request for a safety review regarding the bobcat and wheelbarrow 

incident was protected. 

259 
Further, although Boswell earned $920.04 more in his new job than he 

would have in his previous one, his job transfer from a utility laborer to 

payloader operator reduced Boswell's base pay by $1.08 per hour. The annual 

difference in earnings found by the judge was due to additional hours worked 

by Boswell and premium pay received for Sunday and holiday work, shift 

differential, and overtime. See Tr. 43-46, 168. Thus, the evidence shows 

that Boswell earned more because he worked more, but that he nevertheless 

suffered a loss in his base pay rate. We conclusle that Boswell suffered an 

adverse action. 

3. Nexus 

We agree with the judge's conclusions that National Cement's action 

against Boswell was motivated at least in part by Boswell's protected 

activity. The Report specifically refers to Boswell's August 8, 1989, refusal 

to remove brick from the kiln, Boswell's January 1, 1990, refusal to remove 

the steel balls from the mill basement using the bobcat and Boswell's requests 

for safety reviews associated with these work refusals. National Cement does 

not dispute that these activities were part of its bases for disciplining 

Boswell. Thus, we affirm the judge's conclusion that Boswell was disciplined, 

at least in part, for these protected activities and that he, therefore, 

established a prima facie case of discrimination. 

4. Affirmative Defense 

On review, National Cement argues that it would have disciplined 

Boswell, in any event, for his unprotected activity alone and that the judge 

did not address this affirmative defense. The operator presents two bases for 

its affirmative defense: (1) Boswell's allegedly poor work history including 

the wheelbarrow incident and the three other incidents set forth in the Report 

(the clay shredder, radio and December 22, 1989 kiln incidents) as well· as his 

earlier work history; 7 and (2) the inability of Boswell and Allen to get 

along. The judge found little evidence that the radio incident actually 

occurred and therefore determined that it did not affect the issue at bar. We 

agree. The judge also found that the clay shredder and December 1989 kiln 

incidents did not involve protected activity and individually did not provide 

the operator with justification for disciplining Boswell. He did not, 

however, analyze whether National Cement had established an affirmative 

defense, based on the totality of unprotected activity set forth in the 

Report. Nor did he mention the earlier work history or Boswell's relationship 

with Allen. Accordingly, we remand this case to the judge for analysis of 

this issue. On remand, the judge shall evaluate the evidence of record on 

these points in light of the Pasula-Robinette affirmative defense framework. 

Pasula, 2 FMSHRC at 2799-800; Robinette, 3 FMSHRC at 817-20 .. If the judge 

finds that Boswell's refusal to use the wheelbarrow was not protected, he 

should also consider this incident when evaluating National Cement's 

affirmative defense. 

7 According to National Cement, Boswell had a long history of performance 

problems, involving seven additional incidents. See N.C. Exhs. 5-11. We note, 

however, that these incidents were not mentioned in the Report. 

260 
III. 

Conclusion 

Accordingly, on the foregoing bases, we affirm the judge's decision in 

part, vacate it in part, and remand for further proceedings consistent with 

this opinion. The judge shall consider whether the wheelbarrow incident 

constituted a protected work refusal. The judge shall also analyze whether 

National Cement proved that it would have disqualified Boswell in any event 

for any unprotected activities the judge may find in reconsidering the matters 

raised in this decision. 

Distribution 

Harry L. Hopkins, Esq. 

Thomas F. Campbell, Esq. 

Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

Lange, Simpson, Robinson & Somerville 

1700 First Alabama Bank Bldg. 

Birmingham, Alabama 35203 

Larry G. Myers for Ronny Boswell 

United Paperworkers International Union 

District Council No. 5 

229 Roebuck Plaza Drive, Suite 203 

Birmingham, AL 35206 

Mr. Ronny Boswell 

P .0. Box 177 

Wattsville, Alabama 35182 

Administrative Law Judge Roy J. :Maurer 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

261 
262 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

CLIFFORD MEEK, 

Complainant 

v. 

ESSROC CORPORATION, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 31 1992 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 90-132-DM 

MSHA Case No. UC MD-90-06 

SUPPLEMENTAL DECISION 

Before: Judge Fauver 

This discrimination proceeding was brought under § l05(c) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

seq. 

On December 24, 1991, a decision on liability was entered 

finding that Respondent discriminated against Complainant by 

refusing to employ him because of his protected activities. As 

stated at page 12 of the decision, "This decision shall not be a 

final disposition of this proceeding until a supplemental decision 

entered on monetary relief." 

Further proceedings are in process on issues of monetary 

relief due Complainant. 

Before considering the parties 1 proposals and arguments on 

monetary relief, I observe that a motion to dismiss has not been 

formally ruled upon; however, its denial is implicit from the 

decision on liability. Th supplemental decision addresses the 

motion to dismiss, and sets a time for the parties to submit their 

final proposals and documents on monetary relief. 

At the close of Complainant's evidence at the hearing, 

Respondent moved to dismiss the complaint on the ground that 

Complainant had not made out a prima facie case of discrimination. 

Denial of this motion is implicit in the decision on 

liability, which credits Complainant's evidence and finds that it 

establishes a prima facie case of discrimination. For the record, 

the motion to dismiss is hereby formally DENIED, for reasons 

included in the findings, conclusions and discussion in the 

decision on liability. 

263 
This case is pending further procedures and a final order on 

monetary relief. If needed, a supplemental hearing will be 

scheduled on factual issues concerning monetary relief. The 

parties shall have 15 days from the date of this decision to submit 

their final proposals and supporting documents on monetary relief. 

~dM~~v"'- Administrative Law Judge 

Distribution: 

Robert J. Tscholl, Esq., Roetzel & Andress, 220 Market Avenue, 

South, Suite 502, Canton, OH '·44702 ·(Certified Mail) 

John C. Ross, Esq., Ross & Robertson, P. 0. Box 35727, Canton, OH 

44735 (Certified Mail) 

/fas 

264 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

4 l992 

CONTEST PROCEEDING 

Docket No. WEVA 91-210-R 

Citation No. 3105298; 2/7/91 

Robinson Run No. 95 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 91-1961 

A.C. No. 46-01318-04008 

Robinson Run No. 95 Mine 

DECISION 

and 

ORDER OF DISMISSAL 

Appearances~ 

Before~ 

Wanda M. Johnson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, for 

the Petitioner/Respondent; 

Walter J. Scheller, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent/Contestant. 

Judge Koutras 

Statement of the Proceedings 

The captioned civil penalty proceeding concerns a proposal 

for assessment of civil penalty filed by the petitioner against 

the respondent pursuant to section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. 820{a), seeking a civil 

penalty assessment of $379, for an alleged violation of mandatory 

safety standard 30 C.F.R. § 75.400. The case was consolidated 

for hearing in Morgantown, West Virginia, with the captioned 

contest Docket No. WEVA 91-210-R, and with several other dockets 

concerning these same parties. 

265 
Discussion 

'rhe parties agreed to settle the civil penalty case, and the 

petitioner was afforded an opportunity to present the proposed 

settlement motion orally on the record pursuant to Commission 

Rule 30, 29 C.F.R. § 2700.30. 

In support of the proposed settlement, the petitioner stated 

that the respondent has agreed to pay the initial proposed 

penalty assessment of $379, in full. I took note of the fact the 

violation was the result of moderate negligence, and that the 

cited condition was rapidly abated with an hour of the issuance 

of the citation. 

Conclusion 

In view of the foregoing, and after careful review of the 

pleadings and the arguments in support of the proposed settlement 

disposition of the alleged vipJation, the proposed settlement was 

approved from the bench. I conclude and find that the settlement 

is in the public interest, and my bench decision is reaffirmed. 

The settlement IS APPROVED. 

ORDER 

Docket No. WEVA 91-1961. The respondent IS ORDERED to pay a 

civil penalty assessment of $379, in satisfaction of section 

104(a) Citation No. 3105298, February 7, 1991, 30 C.F.R. 

§ 75.400. Payment is to be made to MSHA within thirty (30) days 

of the date of this decision and order, and upon receipt of 

payment, this matter is dismissed. 

Docket No. WEVA 91-210-R. In view of the settlement 

disposition of the companion civil penalty case, the docketed 

contest case IS DISMISSED. 

Distribution: 

~~ge Administrative 

;j ;;Ad/Uf A'.-Koutras £ #. ~ 

Law Judge 

Wanda M. Johnson, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203 

(Certified Mail) 

Walter J. Scheller III, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241· (Certified 

Mail) 

/ml 

266 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 4 1992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CONSOLIDATION COAL CQMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

Docket No. WEVA 91-1980 

A.C. No. 46-01318-04013 

Robinson Run No. 95 Mine 

: ·· CONTEST PROCEEDINGS 

Docket No. WEVA 91-211-R 

Citation No. 3105685; 2/7/91 

Docket No. WEVA 91-212-R 

Citation No. 3105686; 2/7/91 

Robinson Run No. 95 Mine 

Mine ID 46-01318 

PARTIAL DECISION 

Appearances: 

Before: 

ORDER OF DISMISSAL 

ORDER STAYING PROCEEDING 

Wanda M. Johnson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, for 

the Petitioner/Respondent; 

Walter J. Scheller, ., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent/Contestant. 

Judge Koutras 

Statement of the Proceedings 

The captioned civil penalty proceeding concerns proposals 

for assessment of civil penalties filed by the petitioner against 

the respondent pursuant to the Federal Mine Safety and Health Act 

of 1977. The petitioner seeks civil penalty assessments for five 

(5) alleged violations of certain mandatory safety standards 

found in Part 75, Title 30, Code of Federal Regulations. The 

case was docketed for hearing in Morgantown, West Virginia, with 

267 
several other civil penalty and contest cases, and two of the 

citations were consolidated with Contest Docket Nos. 

WEVA 91-211-R 2and WEVA 91 212-R, (Citation Nos. 3105685 and 

3105686). One Citation (No. 3105328) concerning an alleged 

violation of the safeguard standard 30 C.F.R. § 1403(8) (b), was 

previously stayed by me by a stay order issued on November 1, 

1991. The remaining citations (Nos. 3313225 and 3313227) concern 

alleged "excessive history" violations and the parties requested 

that they be stayed pending the Commission's decision in Drummond 

Coal Co., Inc., 13 FMSHRC 339, and 13 FMSHRC 356 (March 1991), 

and Zeigler Coal Company, 13 FMSHRC 367 (March 1991). 

Settlement 

Section 104(a) "S&S" citation No. 3105685, concerns an 

alleged violation of 30 C.F.R. § 75.807. Section 104(a) "S&S" 

citation No. 3105686, concerns an alleged violation of 30 C.F.R. 

§ 75.316. They were both initially assessed at $310 for each 

alleged violation. 

~ •v• 

In support of the proposed settlements, petitioner's counsel 

stated that upon further review of the facts and circumstances 

which resulted in the issuance of the citations, the inspector 

now believes that the citations should be modified as non-"S&S" 

citations due to mitigating circumstances with regard to the 

question of gravity •. Under the circumstances, counsel agreed 

that a reduction in the initial penalty assessments is warranted, 

and the respondent agreed to pay civil penalty assessments in the 

amount of $186, for each of the citations. 

After careful review and consideration of the pleadings and 

arguments in support of the proposed settlements, including the 

civil penalty assessment criteria found in section llO(i) of the 

Act, the settlement dispositions were approved from the bencho 

My bench decisions are herein reaffirmed" 

ORDER 

Pursuant to Commission Rule 30, 29 CoF.R. § 2700.30, the 

proposed settlement IS APPROVED. The respondent IS ORDERED to 

pay a civil penalty assessment of $186 for citation No. 3105685, 

and a civil penalty assessment of $186 for citation NO. 3105686. 

Payment is to be made to MSHA within thirty (30) days of the date 

of this partial decision and order, ·and upon receipt of payment, 

the petition for assessment of civil penalty for these citations 

is dismissed. In view of the settlement approval, the companion 

contest Docket Nos. WEVA 91-211-R and WEVA 91-212-R, ARE 

DISMISSED. 

268 
IT IS FURTHER ORDERED THAT excessive history Citation 

Nos. 3313225 and 3313227 (Docket No. WEVA 91-1980) issued on 

June 10, 1991, alleging violations of 30 C.F.R. § 75.1000-3, 

ARE STAYED. 

4~&~ Administrative Law Judge 

Distribution: 

Walter J. Scheller, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Wanda M. Johnson, Esq., Office of the Solicitor, U.S. Department 

of Labor, Suite 516, Ballston Towers #3, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

/ml 

269 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 1 0 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HIGHLANDS COUNTY BOARD OF 

COMMISSIONERS, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 91-660-M 

A.C. No. 08-01139-05501 

Charlotte County Shell 

Pit Mine 

DECISION 

Appearances: Michael K. Hagan, Esq., U.S. Department of Labor, 

Office of the Solicitor, Atlanta, Georgia, for the 

Petitioner; 

J. Ross MacBeth, Esq., Sebring, Florida, for the 

Respondent. 

Before: Judge Koutras 

Statement of the Case 

proceeding concerns proposals for assessment of civil 

filed by the petitioner against the respondent pursuant 

llO(a) of the Federal Mine Safety and Health Act of 

1977 30 U.S.C. § 820(a), seeking civil penalty assessments in 

the amount of $40, for two alleged violations of certain 

mandatory safety standards found in Part 56, Title 30, Code of 

Federal Regulations. A hearing was held in Sebring, Florida, and 

the parties waived the filing of posthearing briefs. However, I 

have considered their oral arguments made on the record during 

the hearing in my adjudication of this matter. 

Issues 

The issues presented in this proceeding are (1) whether the 

conditions or practices cited by the inspector constitute 

violations of the cited mandatory safety standards, and (2) the 

appropriate civil penalties to be assessed for the violations, 

taking into account the statutory civil penalty criteria found in 

section llO(i) of the Act. Additional issues raised by the 

parties are identified and disposed of in the course of this 

decision. 

270 
Applicable statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801, et seq. 

2. Commission Fules, 29 C.F.R. § 2700.1, et seq. 

3. Mandatory safety standards 30 C.F.R. § § 56.14107(a) and 

56.1410l(a) (2). 

Stipulations 

The parties stipulated to the following (Tr. 5-6): 

1. The respondent is subject to the jurisdiction of the 

Act, the Secretary of Labor, and the Commission. 

2. The respondent is a small mine operator employing 

approximately two people .. at the subject mine site. 

3. The proposed civil penalty assessments will not 

adversely affect the respondent's ability to continue in 

business. 

4. The respondent's history of prior violations for the 

period February 14, 1989, through February 13, 1991, is 

reflected in an MSHA computer print-out, and it indicates 

that the respondent has no prior violations (Exhibit P-1). 

5. The two contested violations in this proceeding were 

timely abated in good faith by the respondent. 

Discussion 

Section 104(a) Non-"S&S" citation No. 3431917, issued on 

February 14, 1991, cites an alleged violation of mandatory safety 

standard 30 C.F.R. § 56.14107(a), and the cited condition or 

practice is described as follows: 

The belt drive was not guarded on the pit discharge 

pump in the pit area. As a rule employees do not go in 

this area while pump is running. 

Section 104(a) Non- 11 S&S 11 Citation No. 3431918, initially 

issued on February 14, 1991, and subsequently modified on 

April 15, 1991, cites an alleged violation of mandatory safety 

standard 30 C.F.R. § 56.1410l(a) (2), and the cited condition or 

practice is described as follows: 

The parking brake on the 950 Caterpillar front-end 

loader was not capable of holding the loader with its 

typical load on the maximum grade it travels. 

271 
Petitioner's Testimony and Evidence 

citation No. 3431917. 30 C.F.R. § 56.14107Ca). 

MSHA Inspector J.J. Crisp testified that he inspected the 

mine for the first time on February 14, 1991. He proceeded to 

the pit area and encountered the dragline operator. While 

standing at the top of the bank with the operator, Mr. Crisp 

observed that the belt drive of the dewatering pump was not 

guarded. The guard was laying in the walkway and the pump was 

running and the belt drive was in motion. The unguarded drive 

was "waist high to chest high", and Mr. Crisp believed that the 

lack of a guard posed a hazard of someone loosing a finger or a 

hand if they inadvertently contacted the belt drive pinch points 

while it was running. He described the pinch points as the area 

between the drive and the sheaves (Tr. 7-11). 

Mr. crisp stated that the dragline operator told him that 

the guard was off because he had to replace some belts, and that 

pit foreman Gene Durrance toid. him that as a general rule 

employees did not go to the pump area while it was running 

(Tr. 12). Mr Crisp believed that if someone were next to the 

unguarded drive he could possible be caught and hurt. However, 

he took Mr. Durrance's word that no one is in the area unless the 

pump is turned off, and that is why he determined that an injury 

was unlikely and that the violation was not significant and 

substantial (Tr. 13). He considered the respondent's negligence 

to be "moderate to normal", and he confirmed that the violation 

was abated and that the guard was on when he next returned to the 

mine (Tr. 14} . 

Mro Crisp explained the procedure for aligning the belts 

when new ones are installed and he stated that the belts are not 

self-adjusting and someone has to adjust them. The operator can 

determine whether the belts are adjusted properly by observing 

the belts while they are running, and if they are misaligned, 

"you could throw a belt or you could see misalignment 

instantaneous and you have to do the job all over again" 

(Tr. 15). 

On cross-examination, Mr. Crisp identified photographic 

exhibit R-2, and he confirmed the location of the cited pump and 

motor on a platform on the water. He stated that the pump motor 

was turned off by a switch located on a switch box installed on a 

pole at the top of the bank. He estimated that the switch was 

approximately 20 feet away from a stairway leading down the 

embankment, and that the stairway was approximately 15 to 20 feet 

from a 15-foot walkway leading to the platform where the pump was 

located. The platform holding the pump was approximately eightto-ten foot square (Tr. 17). 

272 
Mr. Crisp agreed that there would be no hazard or danger 

from the pump if anyone were in the pit and the pump was not 

running. Mr. Crisp believed that the guard should have been put 

back on as soon as the belt was turned on. However, if no one is 

in the pit and the pump is not on, it would not be negligent 

(Tr. 20) . 

Mr. crisp acknowledged that subsection (b) of the cited 

standard provides an exception that does not require a guard when 

the exposed moving part is at least seven feet away from a 

walking or working surface. He confirmed that access is required 

in order to maintain and check the pump, that two people work at 

the pit, and they would maintain or check the pump as needed 

{Tr. 22). 

In response to further questions, Mr. crisp stated that the 

pump was readily accessible and that there was no barrier or 

locked gate preventing access to the platform area where the pump 

was located. He characterized the platform area around the pump 

as a "working platform", and he conceded that he did not measure 

the platform {Tr. 25). 

Citation No. 3431918, 30 C.F.R. § 56.1410l(a) (2) 

Inspector Crisp stated that he observed Mr. Durrance 

operating the cited front-end loader on a slight incline at the 

top of the levee coming out of the pit. He checked the backup 

alarm and fire extinguisher and found them satisfactory. He told 

Mr. Durrance that he wanted to check the service brakes. 

Mr. Durrance applied the service brakes while the machine was 

moving, and the brakes functioned properly and stopped the 

machine (Tr. 36-37). Mr. Crisp stated that the machine was not 

stopped completely when he asked Mr. Durrance to apply the 

parking brake and then let off the service brakes. When he did, 

the parking brakes would not hold the machine and he "rode freely 

on the slight incline". Mr. Crisp confirmed that the brakes were 

tested on a slight incline with an empty bucket, and that 

Mr. Durrance told him that he thought the parking brake was 

working (Tr. 36-38)0 

Mr. Crisp confirmed that he made a determination that an 

injury was unlikely because the service brakes were operable, and 

if they failed, the operator (who had a seatbelt) could steer the 

machine and bring it to a stop. However, if an injury did occur, 

it would be 11 lost work days and restricted duty". He did not 

consider the violation to be significant and substantial 

(Tr. 40). He considered the negligence to be "moderate to 

normal" because the operator is supposed to check his equipment 

before the shift begins and he should have known of the 

condition. Mr. Crisp stated that Mr. Durrance told him the 

parking brake was adjusted, and on a subsequent inspection visit, 

Mr. crisp tested the parking brake and abated the violation. 

273 
Mr. crisp confirmed that he initially cited a violation of 

subsection (a) (3) of section 56.14101, but that his supervisor 

subsequently modified it to reflect a violation of subsection 

(a) (2) (Tr. 38, 41-42; 46-47). 

On cross-examination, Mr. Crisp stated that when he next 

returned to the mine to abate the citation, he asked Mr. Durrance 

to engage the parking brake and the machine did not move. In 

response to a question as to whether he actually had Mr. Durrance 

test the parking brakes or simply asked him whether or not they 

worked, Mr. Crisp stated that "as I recall, I inspected it" 

(Tr. 44). In response to further questions, Mr. Crisp stated 

that the loader was used to load trucks, and that the loader 

operator would not use the parking brake during loading. 

However, he would use the parking brake on a ramp if he lost his 

service brakes, and although the trucks are normally loaded in 

flat areas, there are "dips and slight inclines" (Tr. 45-46). 

Mr. Crisp further explained the initial testing of the parking 

brake by Mr. Durrance as follows at (Tr. 48-50): 

A. No, sir. I checked it--he had come up out of the pit 

area to where he loads trucks. It was right on top of the 

levee on a slight incline and he stopped it in this area. 

That's where the test was performed. 

Q. And it was empty? 

A. It was empty. 

Q. He had his service brakes on and the engine was running? 

A. Right. 

Q¢ When he released the service brake was the transmission 

in neutral or drive or what? 

A. In neutral. 

Q. He released the service brakes--

A. The machine rolled. 

Q. And rolled. How far did it roll? 

A. Well, he put his brakes on pretty quick. 

* * * * * * * 

Q. It's easier to pass the test if there's no load? 

A. Right. 

274 
Q. And if it won't hold it and it says it has to hold it on 

that maximum grade, if you tested it on a slight grade is 

that an easier test for the equipment to pass? 

A. Yes. 

Q. So, in terms of what the standard requires, it failed to 

pass an even lower standard? 

Ao A minimal test, yes. 

Respondent's Testimony and Evidence 

Citation No. 3431917. 30 C.F.R. § 56.14107{a) 

Gene Durrance testified that he is employed by the 

respondent county road and bridge department as a finish operator 

at the Charlotte county shell pit operation. He confirmed that 

photographic Exhibit R-2, depicts the pump which was cited by 

Inspector crisp on the day of,.his inspection. Mr. Durrance 

stated that the guard-is located at the top of the motor at the 

belt drive. He stated that the platform is approximately ten 

feet square and that the walkway from the platform to the shore 

is approximately 20 feet long. The stairway leading from the end 

of the walkway to the top of the bank is approximately 30 feet 

long, and the distance from the top of the stairs to the post 

holding the pump switch is 20 feet. The on-off switch is located 

on the side of the electrical box mounted on the post, and the 

master switch is on the front of the box on the same post 

(Tr. 51-53) . 

Mr. Durrance stated that once the pump motor is turned off 

at the switch it cannot be turned on from the platform area, and 

one would have to return to the switch pole to turn it back on. 

He stated that he general does the usual maintenance on the 

pump motor, and there is a rule or procedure that "you don't go 

there with the motor runningll (Tr. 54). He confirmed that other 

than repairs, there is no reason for anyone to go out on the 

platform, and that no one goes there with the motor running 

(Tr. 54)" 

Mr. Durrance acknowledged that the guard was off the cited 

pump motor belt drive at the time of the inspection. He 

explained that he had taken the guard off in order to replace 

three belts. The guard was left off while the shop was obtaining 

the belts, and the next morning he installed the belts after 

turning off the motor. He then left the platform and turned the 

motor back on. with the guard off because he wanted to let it run 

awhile in order to check the tension, and if it required 

adjustment he would have put the cover back on. However, before 

he could finish and put the guard back on, he had to load some 

trucks, and in the interim, the inspector arrived and saw that 

275 
the guard was off and that the pump motor was running (Tr. 54-

55). He explained the procedure as follows at (Tr. 55-56): 

Q. In terms of procedure you turn the pump off or not when 

you went in there? 

A. Off. 

Q. You turn it off, you go down in there and you said you 

replaced three belts; is that correct? 

A. Yes, sir. 

Q. And then you have to go back out to turn it back on; is 

that correct? 

A. Yes, sir. 

THE COURT: Excuse me just a second. Did you replace 

three belts?, You said it had three belts. 

A. Yes, sir. 

Q. Now, did you leave? Did you turn it on and leave it on 

to check the alignment? 

A. The alignment was pretty well in line. All I had to do 

was just replace the belts and readjust the tension on the 

belt. 

Q. If the alignment was okay why would it be necessary to 

run the equipment for a little while before putting the 

guard back on? 

A. Just like a car. If you change a fan belt you run it a 

little while then you check it for tension. If you feel it 

needs to be tightened up some more--

Q" So~ it was to make sure the tension was right and if the 

belts were all loose you could tighten it back up? 

A. Yes, s 

Q. And then put the guard back on; is that correct? 

A. Yes, sir. 

On cross-examination, Mr. Durrance stated that the pump 

motor switch can be locked out by inserting a lock in the lever, 

but that he doesn't use a lock and simply pulls the switch down. 

He stated that there is no written rule or procedure that no one 

276 
goes on the platform with the motor running, and that "I don't 

like to go out there with all that electricity in the water" 

(Tr. 57). He stated that the belt broke the day before the 

inspector arrived, but that the pump continued to run with only 

two belts while the guard was off the day before the inspection. 

The new belts were put on at 7:30 a.m., the day of the 

inspection, and the pump was turned off while he did the work. 

No one else was in the area. After replacing the belts and 

tightening them, the guard was still off, and he went ashore and 

turned the motor back on and looked at the machinery from the 

bank and "it ran fine". He then left to load a truck and the 

inspector arrived at 10:30 a.m. The belts were running unguarded 

for approximately three hours. After the inspector left, he 

turned off the motor, checked the belt tension and found that it 

required no more adjusting. He then replaced the guard and 

turned the motor back on. He confirmed that he explained his 

belt changing work to the inspector, but that "he said he already 

saw it and had to write a citation" (Tr. 62-64). 

In response to further questions, Mr. Durrance stated that 

there was no particular reason why he did not replace the guard 

after he replaced the new belts, but that there are four bolts 

which need to be removed or replaced when taking the guard on and 

off. He further stated that if the trucks had not come in for 

loading he would have finished with the belts and replaced the 

guard, but he would have waited 15 to 20 minutes to make sure the 

belt tension was correct. He told the inspector that he was 

going to replace the guard as soon as he finished, but the 

inspector left and did not know that he had replaced the guard 

(Tr. 65-67) . 

Louis Pollard, Jr., employed by the respondent as a dragline 

operator at the cited pit in question, testified that he was 

present when Mr. Crisp conducted his inspection on February 14, 

1991. He stated that after Mr. Durrance learned who the 

inspector was he asked him if there was anything wrong, and the 

inspector informed Mr. Durrance that he could not run the pump 

without a guard. Mr. Durrance offered to replace the guard, and 

the inspector stated that he had already seen it (Tr. 86). 

Mr. Pollard confirmed that he and Mr. Durrance are the only 

persons who work at the pit, and that he has never been in the 

pit alone with the pump motor running. He has been with 

Mr. Durrance when pump maintenance was required, and the pump had 

to be removed on two occasions for maintenance (Tr. 87). 

Mr. Pollard stated that the ten foot platform where the pump is 

located is only used for the repair of the equipment, and that at 

the time of the inspection he was operating the dragline on the 

other side of the pit and Mr. Durrance changed the pump belts 

alone (Tr. 89) . 

277 
Citation No. 3431918. 30 C.F.R. § 56.14101(a) (2). 

Mr. Durrance stated that after checking the reverse alarm 

and horn, and with the loader on a slight incline downhill with 

the engine running, Inspector Crisp told him 0 to put it in 

neutral and pull out the parking brake. And the brake didn't 

hold". The foot service brakes were good and they held the 

machine, but the parking brake wouldn't hold the machine and he 

had to stop it with the foot brakes (Tr. 68-69). 

Mr. Durrance stated that the terrain where he normally 

operates the loader is usually level with a few pot holes, and he 

explained that when the loader is initially started he must first 

wait for air pressure to build up before the parking brake can be 

automatically turned on, and the machine cannot be placed in gear 

until the pressure is up and the brake is turned off. When the 

machine is parked the bucket is lowered to the ground and the 

parking brake is on. The parking brake is not used when the 

loader is loading trucks on :t~vel ground (Tr. 70-71}. 

Mr. Durrrance identified pages from the loader operating 

manual (Exhibit R-1), including the procedures for testing the 

parking brake, and he confirmed that the inspector did not 

perform this test. He also confirmed that the inspector asked 

him to apply the parking brake while the machine was moving, and 

that this is contrary to the manual which states that the parking 

brake should not be applied while the machine is moving except in 

an emergency. After the inspector left, the brakes were adjusted 

the next day and tested the same way as the inspector had 

instructed him and "it worked fine and would stop the machine 

while it was rolling" and it held according to the manual 

instruction (Tr. 72-73). 

On cross-examination, Mr. Durance stated that while the pit 

area was flat at the time of the inspection, the roadway which 

led in and out was on an incline and the loader was used on that 

road and was tested there (Tr. 73). He acknowledged that he did 

not always follow the manual instructions before starting the 

loader, and he explained the inspector 1 s instructions which he 

followed in testing the brakes (Tr. 74-77). He stated that after 

the loader was stopped with the service foot brakes and in 

neutral gear, the inspector "told me to let it--make it roll 

again and then pull the parking brake" (Tr. 77). The subsequent 

tests after the inspector left were made after the parking brake 

was adjusted and the grease cleaned out (Tr. 78). When the 

inspector next returned, he did not test the brake again and 

simply asked if it had been repaired (Tr. 81). Mr. Durrance 

confirmed that the manual is kept on the loader, but he did not 

know whether the inspector knew this, and he did not show him the 

manual (Tr. 83). 

278 
Mr. Pollard confirmed that he was present when the loader 

parking brake was tested, could hear what was going on, and he 

described what he observed. He stated that the loader was on a 

slight downhill incline and the inspector told Mr. Durrance "to 

start rolling and put the parking brake on", and when he did, the 

loader did not stop. Mr. Pollard stated that he was not involved 

in the servicing of the parking brake and was not present when 

the inspector returned to -abate the citation (Tr. 90, 92). 

On cross-examination, Mr. Pollard stated that he was 

standing next to the inspector, and that after the loader backup 

alarm and horn were tested, the foot brake was tested first with 

the engine running. Mr. Durrance then shut the machine off. He 

was then told by the inspector to try the parking brake, and the 

inspector did not tell Mr. Durrance to take his foot off the 

service brake and let the machine roll. The loader was started 

again, and the inspector told Mr. Durrance to put it in gear and 

to apply the parking brake (Tr. 95-98). 

David Butler, employed oythe·respondent as a mechanic, 

testified that he was instructed to go to the pit in question to 

perform some repair work on the cited loader and that he first 

met with Mr. Durrance who informed him "that an inspector had 

come in and he said that the parking brake it needed to be 

adjusted up" (Tr. 100) Mr. Butler stated that he adjusted the 

brake bands and inspected the linkage from the air pod to the 

brake pads, and found some grease on the outside of the drum. 

This was normal leakage from the hydraulic hoses, and the grease 

would not cause the brakes to malfunction. After making the 

adjustments, he and Mr. Durrance tested the loader following the 

same procedure as the inspector had previously instructed, and 

when the parking brake was applied with the machine rolling, it 

came to a stop. The test was performed on level ground at the 

bottom of the pit and not on the pit access road (Tro 101-102). 

Inspector Crisp was called in rebuttal by the petitioner, 

and he confirmed that while he was aware of the loader manual 

testing information, he did follow the manual testing procedure 

and he stated that 11we have no rule for testing parking brakes" 

(Tr. 107). He stated that he tests the equipment wherever he 

finds it. He had no doubt that he did not ask Mr. Durance to put 

the loader in motion before applying the parking brake. He 

stated that his procedure while testing a loader on a grade is 11 to set the parking brake manually, then if it rolls there's no 

use going through another test" (Tr. 108). He stated that when 

Mr. Durrance applied the foot service brakes he was fully 

stopped. He then asked him to put the loader in neutral and to 

take his foot off the service brake and to apply the parking 

brake, and the loader rolled (Tr. 109). He confirmed that he has 

followed this test procedure for parking brakes seven or eight 

hundred times in his career and that he has never asked the 

279 
operator to put the machine in motion because "you can ruin the 

pads" (Tr. 109-110) . 

Mr. Crisp could not recall Mr. Durrance turning the machine 

off and then on again before testing the parking brake. He 

explained that the machine stopped after Mr. Durrance applied the 

foot service brakes. Mr. Durrance then put the parking brake on 

with his foot still on the service brake, and when he released 

his foot from the service brakes, the machine started rolling. 

At no time was the machine in motion while the parking brake was 

applied (Tr. 115-117). 

With regard to the guarding citation, Inspector Crisp stated 

that he had no reason to doubt Mr. Durrance•s testimony 

concerning the replacement of the pump motor belts. He confirmed 

that since he had already observed the condition he felt 

compelled to issue the citation, and that he would issue a 

citation whenever he finds such an unguarded piece of moving 

machinery in operation. If it were locked out, he would not 

bother, but if it were simply, switched off and not locked out, he 

would still issue a citation (Tr. ll3-114). 

Petitioner's Arguments 

The petitioner asserted that the evidence presented in this 

case establishes that the inspector observed that the pump motor 

belt drive was in motion and not guarded, and that the test 

performed by the loader operator established that the parking 

brake was inoperable. Under the circumstances, the petitioner 

concluded that the violations of the cited mandatory safety 

standards have been established and that the proposed civil 

penalty assessments are appropriate in view of the unlikelihood 

of any injuries, the limited hazard exposure, and a moderate 

degree of negligence (Tr. 117-118) o 

With regard to the guarding citation, petitioner asserted 

that the testimony establishes that there was a period of time 

when the belt drive was operating without the guard attached, and 

that the respondent's purported "rule of practice" was simply the 

operator's habit of not going on the platform when the motor was 

running and unguarded. Further, the petitioner asserted that in 

the event of an emergency, "habits may perhaps go11 , and that the 

intent of the standard is to protect individuals from their own 

carelessness. Petitioner disagreed that the exception found in 

subsection (b) of section 56.14107, applies in this case {Tr. 22, 

29, 33-34, 119). The petitioner pointed out that the belt drive 

was not locked out, and there was no barrier preventing anyone 

from going to that location (Tr. 127). 

With regard to the loader parking brake citation, the 

petitioner asserted that the inspector followed his normal 

testing routine when he had the loader operator test the parking 

280 
brake on a vehicle which was not in motion. Petitioner 

maintained that the loader went into motion when the parking 

brake was applied and it did not control the loader. The 

petitioner further pointed out that the mechanic testified that 

adjustments were made to the parking brake after it was tested, 

and this supports the fact that adjustments were needed to be 

made (Tr. 119). 

Respondent's Arguments 

With regard to the guarding citation, the respondent does 

not dispute the fact that the guard was not on the moving pump 

motor belt drive at the time Inspector Crisp initially observed 

the equipment in operation. The respondent's defense is based on 

an argument that the exception found in subsection (b) of 

section 56.14107 applies in this case. In support of this 

argument, the respondent asserted that the purpose of the 

platform area around the pump motor was to provide access for 

maintenance and repairs and that the only reason anyone goes to 

that area is to service or repair the pump. If one were required 

to stand seven feet away to repair the equipment, the exception 

would never apply. Given the fact that no one is ever in the 

area when the pump motor is running, the impossibility of any 

injury because of the manner in which the pit is operated and 

managed, and the fact that no one is ever there unless he were 

servicing the machine while it was off, respondent concludes that 

for the exception to have any reasonable meaning and application, 

one must conclude that it clearly applies in this case and that a 

violation has not been established (Tr. 26-28; 121, 125-126). 

Respondent further argued that the platform area is not a 

working surface for any purpose other than to service the pump, 

and counsel stated "If it doesn't apply under these circumstances 

I can't imagine ever applying10 {Tro 32). Respondent pointed 

out that subsection (b) does not require any guard or any 

particular restrictions on access, and it simply provides that 

moving parts be a certain distance from a working surface 

(Tr. 35)o Further, respondent pointed out that the language of 

the citation that Q'as a rule 01 employees do not go to the platform 

area erroneous in that it has been established that as a 

matter of policy no one ever goes to the area while the equipment 

running (Tr. 120). 

With regard to the loader parking brake citation, respondent 

asserted that the testimony suggests that the loader was not 

retested after the citation was issued, and that the initial test 

which the inspector supervised did not follow the manufacturer's 

instructions. Respondent maintains that the loader parking brake 

was tested while the machine was rolling, and there is no 

standard to determine how fast it was required to be stopped 

(Tr. 122). Respondent further argued that the test was conducted 

on a slight incline, and MSHA has not proved that the parking 

281 
brake would not hold the loader in accordance with the 

manufacturer's design specifications or testing instructions. 

Further, any adjustments made to the parking brake were made to 

accommodate a rolling stop (Tr. 123). 

Findings and Conclusions 

Fact of Violation. 

citation No. 3431918. 30 C.F.R. § 56.1410l(a) (2). 

The respondent here is charged with a violation of mandatory 

safety standard 30 C.F.R. § 56.1410l(a) (2), because of the 

alleged failure of the parking brake on the cited loader to hold 

the machine as required by that regulatory standard. The cited 

standard provides as follows: · 

If equipped on self-propelled mobile equipment, parking 

brakes shall be capable of holding the equipment with 

its typical load on the maximum grade it travels. 

In Turner Brothers, Inc., 6 FMSHRC 1219, 1259 (May 1984), 

and 6 FMSHRC 2125, 2134 (September 1984), I affirmed violations 

of section 77,1605(b), for inadequate parking brakes on a coal 

haulage truck and an endloader based on tests which consisted of 

parking the equipment on an incline and setting the brakes to 

determine whether they would hold. In both instances, the brakes 

would not hold the equipment, and I concluded that the brakes 

were inadequate. In the case of the truck, the inspector tested 

the parking brake by instructing the driver to stop the truck on 

a small incline and set the brake. When he did, the brake would 

not hold and the truck rolled. In the case of the loader, the 

inspector asked the driver to demonstrate the parking brake. The 

driver set the brake and raised the machine bucket, and the 

machine rolled. 

In Thompson Coal & Construction, Inc., 8 FMSHRC 1748 

(November 1986), I affirmed a violation for a defective parking 

brake on a Caterpillar front-end loader because the parking brake 

would not hold the loader in place when the brake was set. The 

inspector had the driver set the brakep and when the machine was 

accelerated while in reverse gear, it move.d backwards with the 

brake set. Although I observed that the validity of testing the 

effectiveness of the parking brake by operating the machine in 

reverse gear on level ground was questionable, I considered the 

fact that the operator conceded that the parking brake was 

defective because certain parts needed replacement. 

In Concrete Materials, Inc., 2 FMSHRC 3105 (October 1980), 

and Medusa Cement company, 2 FMSHRC 819 (April 1980) , Judge 

Melick and former Judge Cook affirmed violations for inadequate 

brakes on haulage trucks based on tests conducted by the drivers 

by driving the trucks on inclines to determine their braking and 

282 
stopping capability. In the Medusa Cement case, the inspector 

specified the testing method used to support his determination 

that the brakes were inadequate. The inspector testified that 

when the driver placed the vehicle in third and fourth gear, 

placed his foot on the brake and depressed it to the lower limit 

of travel and applied acceleration, the truck began to "creep". 

The judge rejected the operator's contentions that the inspector 

did not test the truck in·a loaded position for stopping and 

holding on a grade, and that there was no valid correlation 

between the test performed and the requirement that a loaded 

truck should stop and hold on any grade over which it had to 

travel. 

The judge in Medusa Cement held that the respondent failed 

to rebut the expert testimony of the inspector regarding the 

adequacy of the brakes, and failed to establish that the test 

yielded an inaccurate result. In response to the operator's 

further contention that the tests could have resulted in damage 

to the equipment, the Judge ql;lserved that at most, the evidence 

relied on by the respondent "establishes a disagreement amongst 

experts as relates to the proper method of testing brakes", 

2 FMSHRC 823. The judge further concluded that the test 

conducted by the inspector and his interpretation of the results 

obtained sufficiently established a prima facie violation. 

In Island Construction Co., Inc., 11 FMSHRC 2448 (December 

1989), Judge Broderick affirmed a violation of 30 C.F.R. 

§ 56.1410l(a) (2) after finding that a front-end loader which was 

used on level ground had an inoperative parking brake. In IMC 

Fertilizer, Inc., 11 FMSHRC 706 (April 4, 1989), the judge 

affirmed two violations' concerning inadequate service brakes on 

two front-end loaders" The inspector tested the vehicles by 

instructing the operators to start the loaders and drive forward 

until he dropped his hand and then to apply the brakes. In both 

instances, the vehicles continued to travel 7 to 8 feet after the 

brakes were applied, and the operators stated that the brakes 

felt 11 spongy11 • The first violation was abated after hydraulic 

fluid was added to the brake reservoir, and when re-tested, the 

vehicle stopped in 2 to 3 feet. The second violation was abated 

after the brakes were adjusted, and when retested, the vehicle 

stopped within two or three feet. Although Judge Broderick 

agreed that the operator's contention that the addition of brake 

fluid and the brake adjustments had no effect on the adequacy of 

the brakes was not free from doubt, he nonetheless accepted the 

inspector's findings based on his "extensive experience in the 

industry and as a Federal inspector 11 , 11 FMSHRC 708. 

In several other "brake testing" cases, violations for 

inadequate brakes have been affirmed on the basis of an 

inspector's observation that a cited truck was "pulling very hard 

to the right", Mineral Explorations Company, 6 FMSHRC 329, 342 

(February 1984); an inspector's observation that a cited truck 

283 
was "slow to stop" after the brakes were tested on an incline and 

the brakes would not hold the truck, Greenville Quarries. Inc., 

9 FMSHRC 1390, 1430 (August 1987); and a determination by an 

inspector that a brake shoe was not making contact with the drum 

because he could remove a piece of paper which he placed under 

the drum with the brake depressed, Mineral Explorations Company, 

6 FMSHRC 316, 322 (February 1984). 

In Wilmot Mining Company, 9 FMSHRC 684, 688 (April 1987}, 

the commission affirmed a judge's finding of a violation of 

section 77.1605(b), for inadequate brakes on a Terex front-end 

loader which was involved in a fatal accident. The judge's 

finding was based on evidence which indicated that the brake 

master cylinder and an auxiliary brake cylinder were low in brake 

fluid, even though the brakelines, wheel cylinder and hydraulic 

brake lines were intact, i.g., they had not leaked because of the 

accident. When tested at operating speed, the loader would not 

stop within the normal expected distances. Rejecting the 

operator's contention that tl).gevidence did not support the 

judge's finding as to- the cause of the inadequacy of the brakes, 

the Commission stated in pertinent part as follows at 9 FMSHRC 

688: 

To prove a violation of this standard, however, the 

Secretary is not required to elaborate a complete 

mechanical explanation of the inadequacy of the brakes. 

A demonstrated inadeguacy itself may be sufficient. 

* * * Whatever the precise cause of the breaking 

defect, the evidence amply supports the judge's finding 

that the Terex was not "equipped with adequate brakes," 

in violation of the cited standard (emphasis added) • 

I take note of the fact that subsection (b) of 

section 56.14101v provides detailed instructions and procedures 

for testing service brakes on self-propelled mobile equipment. 

The only references to front-end loaders and parking brakes are 

found in subsection (3) (i), which states that "Front end loaders 

shall be tested with the loader bucket emptyn 1 and subsection 

( 3) (iii) , which provides that 11 parking or emergency (secondary) 

brakes are not to be actuated during the test 11 of braking systems 

which are designed to bring the equipment to a stop under normal 

operating conditions. 

In the instant case, the loader parking brake was tested on 

a slight incline after the inspector observed it coming out of 

the pit. The inspector testified credibly that the loader 

operator would use the parking brake if he were parked on a ramp, 

or if he lost his service brakes, and that there are dips and 

inclines in the pit areas. Although the truck loading area was 

usually flat, loader operator Durrance acknowledged that the then 

existing roadway in and out of the pit was inclined and that the 

loader traveled over that road. Dragline operator Pollard, who 

284 
occasionally operated the loader, testified that he uses the 

parking brake after he has stopped working or loading trucks, and 

he characterized it as an "emergency brake" and "safety device" 

(Tr. 98). 

The respondent's assertions that the citation should be 

vacated because of the inspector's failure to retest the loader 

before abating the citation and his failure to follow the 

manufacturer's manual testing procedures are rejected. While it 

is true that Mr. Crisp acknowledged that he did not follow the 

manufacturer's manual testing instruction, I cannot conclude that 

this renders the citation defective. I take note of the fact 

that the manual calls for testing the parking brake on level 

ground, and the cited standard section 56.14101(a) (2) requires 

that a parking brake be capable of holding the equipment with its 

typical load on the maximum grade it travels. Under the circumstances, I conclude and find that any test conducted to insure 

compliance with the standard must take into account the normal 

production or operating conditions under which the machine may be 

used. In this case, the machine was tested on a slight incline 

after the inspector observed it coming out of the pit. 

Inspector Crisp has served as an MSHA inspector for 16 years 

and has conducted in excess of one thousand inspections. 

Although he indicated that there is no fixed MSHA.rule for 

testing loader brakes, he testified credibly that he has followed 

the same test procedures that he described in this case seven or 

eight hundred times during his career as an inspector (Tr. 8, 

109). In this case, the inspector determined that no further 

tests were necessary after the initial test reflected that the 

parking brake would not hold the loader with an empty load while 

on a slight downhill grade. Since the empty loader failed to 

pass this most minimal test, the inspector concluded that the 

parking brake would not hold the loader with a typical load on 

the maximum grade of travelo 

Loader mechanic Butler agreed that if a parking brake which 

has been tested on level ground does not hold the equipment, one 

can probably assume that it probably will not hold on an incline. 

Under 1 of these circumstances, I cannot conclude that the 

inspector 1 s conclusions were erroneous or unreasonable. 

With regard to Mr. Crisp 1 s alleged failure to reinspect the 

loader before abating the citation, I find Mr. Crisp's testimony 

that he recalled reinspecting the machine and asking Mr. Durrance 

to engage the brake, and that it stopped when the brake was 

applied 1 to be credible. In any event, Mr. Durrance confirmed 

that he tested the brake after the grease had been cleaned off 

and certain adjustments made, and that he followed the same 

testing procedures as the inspector had initially instructed him 

to follow at the time the citation was issued, and the brake 

functioned properly. Mechanic Butler confirmed that he adjusted 

285 
the parking brake and that he and Mr. Durrance followed the same 

test procedure as the inspector had previously instructed and 

that the brake functioned properly. 

In Tuscola Stone Company, 11 FMSHRC 447 (March 1989), the 

mine operator was charged with a failure to correct a defect on a 

haul truck used to haul rock from a pit to a stockpile. The 

inspector checked the truck on a slight grade while it was empty 

and found that the parking brake was inoperative. However, the 

inspector conceded that the test he performed on the parking 

brake, i.e., attempting to stop a moving truck with the parking 

brake, was not the "standard test" used by MSHA, and that a 

parking brake is not designed to bring a moving haul truck to a 

stop. Under these circumstances, Judge Melick found that the 

test utilized by the inspector was not appropriate to determine 

the adequacy of the parking brake and he vacated that part of the 

citation which cited the alleged defective parking brake. 

In the case at hand, the respondent asserted that the 

inspector instructed the loader·operator to test the parking 

brake while the machine was in motion and that this was contrary 

to the testing instructions found in the manufacturer's manual 

and subjected the machine to possible damage. Mr. Durrance 

testified that the inspector "told me to put the machine in gear, 

make it roll down this little incline and put in neutral and pull 

out the parking brake. And the brake didn't hold" (Tr. 68). He 

further testified that when he applied the parking brake he was 

in gear and in motion and that the inspector asked him to put the 

parking brake on while the machine was moving (Tr. 72). 

Mr. Durrance conceded that he did not always follow the 

loader instruction manual before starting the vehicle, that he 

did not test the parking brake according to the manual 

instructions prior to the inspection by Mr. Crisp, and that the 

parking brake did not work when he tested it following the 

inspectorus instructions (Tr. 74, 82-84). Mr. Durrance testified 

that before the testing of the loader parking brake began, he and 

the inspector were on the ground next to the machine which was 

parked on a grade, and that the engine was off, the bucket was 

down on the ground, and the parking brake was on. After testing 

the horn and backup alarm, Mr. Durrance stated that the third 

test was "to put the machine in motion and turn on the parking 

brake. Make the machine roll, put it in gear and make it roll 

and put it in neutral and put on the parking brake". He stated 

that what the inspector asked him to do next after the horn and 

alarm were tested was to apply his service brakes, and that after 

he stopped the loader with the service brakes, he placed it in 

neutral gear and the inspector then "told me to let it--make it 

roll again and then pull the parking brake" 

(Tr. 7 5-7 7 ) . 

286 
Inspector crisp denied that the loader was in motion when 

the parking brake was applied by Mr. Durrance during the test. He 

stated that in all of his years of testing parking brakes he has 

never asked an equipment operator to put a machine in motion 

before applying the parking brake because it could ruin the brake 

pads. Although Mr. Crisp initially stated that Mr. Durrance 

"wasn't stopped completely and I asked him to apply the parking 

brake and then let off the service brakes" (Tr. 37), his 

subsequent detailed and consistent testimony in response to 

further questions on cross-examination and in rebuttal, which I 

find credible, reflects that Mr. Durrance initially tested the 

loader service brakes while the loader was moving, and that after 

the machine was fully stopped, Mr. Durrance engaged the parking 

brake, with his foot still on the service brakes, and when he 

took his foot off the service brakes, the machine continued 

rolling with the parking brake still engaged (Tr. 37-38; 48-50; 

109-110; 115-117). 

Mr. Pollard, who was pr~~ent when the loader was initially 

inspected by Mr. crisp, and operated by Mr. Durrance, testified 

on direct examination that after testing the horn, the backup 

alarm, and the foot brakes, the inspector "told him to start 

rolling and put the parking brake on" (Tr. 91). Mr. Pollard 

confirmed that Mr. Durrance was moving when he applied the 

parking brake and that the loader did not stop {Tr. 92). On 

cross-examination, Mr. Pollard reiterated that Inspector Crisp 

told Mr. Durrance "to start it moving and then put on the parking 

brake" (Tr. 95). However, in response to several follow-up 

questions, Mr. Pollard confirmed that the service brakes were 

tested first, and after they held the loader in place, 

Mr. Durrance "shut it off" and the inspector "told him to try the 

parking brake. Pull it up" (Tr. 96). 

Mr. Pollard confirmed that he had no knowledge that the 

inspector told Mr. Durrance to take his foot off the service 

brake and let the machine roll, but he stated that "The equipment 

is loud and thereus no way he could have told him without 

shutting down that equipment to try the parking brake" (Tr. 96). 

Mro Pollard then testified that he actually observed Mr. Durrance 

apply the service brake while the loader was moving, and when the 

loader stopped, Mr. Durrance turned the machine off, cranked it 

up again, and the inspector then told him "to put it in gear and 

then put the emergency stop on" (Tr. 97). Mr. Pollard confirmed 

that the 11 emergency stop" is the "parking brake", and he 

indicated that if he were to test the emergency brake on his 

automobile, he would not do it while the vehicle was rolling 

(Tr. 98) . 

After careful examination of all of the testimony, I find 

Mr. Pollard's testimony to be somewhat contradictory. His initial 

testimony lends support to Mr. Durrance's claim that the 

287 
inspector instructed him to apply the parking brake while the 

machine was in motion. However, Mr. Pollard's responses to more 

probing questions support the inspector's version of the parking 

brake test. Although the inspector could not recall that 

Mr. Durrance turned the loader off between the time he tested the 

service brakes and the parking brakes, Mr. Pollard's testimony is 

otherwise consistent with that of the inspector. 

After careful consideration of all of the testimony, and 

having viewed the witnesses during the course of the hearing, and 

taking into account the inspector's unrebutted and credible 

testimony concerning his many years of inspection experience, I 

find him to be a reliable and credible witness and I accept his 

contention that he did not instruct Mr. Durrance to place the 

loader in motion before engaging the parking brake or that the 

loader was moving when Mr. Durrance engaged the parking brake. 

Accordingly, I conclude and find that the test administered by 

the inspector which led him to conclude that the cited parking 

brake would not hold the machinewas.a reasonably proper and 

valid test, and one which the inspector had routinely followed 

during his many prior inspections. Under the circumstances, and 

in view of all of my findings and conclusions, I conclude and 

find that the petitioner has established a violation by a 

preponderance of the credible and probative evidence presented in 

this case. The citation IS AFFIRMED. 

Fact of Violation 

Citation No. 3431917. 30 C.F.R. § 56.14107(a}. 

The respondent here is charged with a violation of mandatory 

safety standard 30 C.F.R. § 56.14107(a), because of an unguarded 

belt drive on a pit discharge pump. The cited standard provides 

as follows~ 

§ 56.14107 Moving machine parts. 

(a) Moving machine parts shall be guarded to protect 

persons from contacting gears, sprockets, chains, 

drive, head, tail, and takeup pulleys, flywheels, 

couplings, shafts, fan blades, and similar moving parts 

that can cause injury. 

(b) Guards shall not be required where the exposed 

moving parts are at least seven feet away from walking 

or working surfaces. 

The respondent does not dispute the fact that the guard was 

off the cited running pump belt drive when the inspector observed 

it on the day of the inspection, and the evidence establishes 

that the pump was running without the guard in place for at least 

288 
three hours prior to the inspector's arrival, as well as the day 

prior to the inspection. 

The respondent established that the pump can only be turned 

on and off by a switch located on a pole on shore. Although the 

switching lever was equipped to accommodate a lock, the 

individual who generally serviced the pump (Durrance) 

acknowledged that he simply pulled the switch down to turn off 

the pump and did not lock it out before servicing it or going to 

the platform area. Further, although the respondent suggested 

that its "policy and procedure" prohibited employees from being 

on the platform while the pump was running, there is no evidence 

that this policy was in writing or incorporated in any work 

procedures given to employees. The "policy and procedure" 

consisted of Mr. Durrance's "habit and practice" of not going to 

the platform with the pump running, and his personal dislike for 

being on a platform over water with electrical equipment in 

operation. 

On the facts of this case, it would appear that the 

respondent's pit operation is essentially a two-man operation, 

and that Mr. Durrance performed many job tasks in addition to 

servicing the pump. The fact that he had to leave the pump motor 

unguarded and running while awaiting the belts and loading trucks 

suggests that he was busy. In light of Mr. Durrance's 

admissions that he did not lock out the pump before servicing it, 

and that he did not always follow the loader manual instructions 

before starting the loader, I suspect that these omissions may be 

attributed in part to the fact that he had many jobs to perform. 

Although I have no reason to disbelieve that Mr. Durrance always 

turned off the pump before he actually serviced it, I have some 

reservations and doubts with his assertions that he always 

traveled back and forth from the pump switch location on shore to 

the platform each time he turned the pump on to observe the belt 

tension and adjustments, and that there was no need for him to be 

on the platform to observe the running belt because he could see 

from the top of the bank whether the belts had the proper tension 

or were properly adjusted. 

Thompson Brothers Coal Company, 6 FMSHRC 2094 (September 

1984), concerned an interpretation and application of guarding 

standard 30 C.F.R. § 77.440(a), which provided as follows: 

Gears~ sprockets; chains; drive, head, tail, and takeup 

pulleys; flywheels; couplings; shafts; sawblades; fan 

inlets; and similar exposed moving machine parts which 

may be contacted by persons, and which may cause injury 

to persons shall be guarded. (Emphasis added). 

Judge Broderick rejected Thompson Brothers' argument that it 

was virtually impossible for a person not suicidally inclined to 

289 
contact the cited unguarded moving parts, and he accepted the 

testimony of the inspector that the unguarded parts were 

accessible and might be contacted by persons examining or working 

on the equipment. In affirming Judge Broderick's decision, the 

Commission stated as follows at 6 FMSHRC 2097: 

The standard requires the guarding of machine parts 

only when they "may be contacted" and "may cause 

injury." Use of the word "may" in these key phrases 

introduces considerations of the likelihood of the 

contact and injury, and requires us to give meaning to 

the nature of the possibility intended. We find that 

the most logical construction of the standard is that 

it imports the concepts of reasonable possibility of 

contact and injury, including contact stemming from 

inadvertent stumbling or falling, momentary 

inattention, or ordinary human carelessness. In 

related contexts, we have emphasized that the 

constructions of ,mandatory safety standards involving 

miners• behavior cannot ignore the vagaries of human 

conduct. See, ~, Great Western Electric, 5 FMSHRC 

840, 842 (May 1983): Lone Star Industries, Inc., 3 

FMSHRC 2526, 2531 (November 1981). Applying this test 

requires taking into consideration all relevant 

exposure and injury variables, ~, accessibility of 

the machine parts, work areas, ingress and egress, work 

duties, and as noted, the vagaries of human conduct. 

Under this approach, citations for inadequate guarding 

will be resolved on a case-by-basis. 

In Leblanc 0 s Concrete & Mortar Sand Company, 11 FMSHRC 660 

(April 1989) / I vacated a citation for an alleged violation of 

guarding standard 30 C.F.R. § 56.14001, which contained language 

identical to the section 77,400(a) guarding requirement 

considered by the Commission in Thompson Brothers Coal Company. 

The factual setting in the Leblanc's Concrete case was virtually 

identical to the facts presented in the instant case. Leblanc 

was a very small sand operator who was cited for failing to guard 

a belt drive on a "floating" fresh water pump which was located 

on a 6 x 6 foot barge supported by floats approximately 20 to 

30 feet from shore. The pump motor was activated by a switch 

located in a plant on shore approximately 200 to 300 feet from 

the barge; and any priming of the pump was done on shore. The 

inspector believed that it would be unlikely that anyone would be 

on the barge when the pump started from the plant, and because of 

the location of the pump, the inspector did not believe that it 

was likely that anyone would be exposed to a hazard. Leblanc 

established that no one was required to be on the barge during 

the normal operation of the pump, and although the pump may have 

been serviced once a week, it was deenergized and shut down when 

service was performed. If major repairs were required, the pump 

was lifted out of the water with a cherry picker and taken ashore 

290 
for repairs. Under these circumstances, I found that a violation 

had not been established, and I vacated the citation for the 

following reason (11 FMSHRC 678): 

I find no evidence to support any reasonable conclusion 

that there existed a reasonable possibility of anyone 

contacting the unguarded pump belt drive unit in 

question, and the pet~tioner has presented no evidence 

to establish that anyone would ever be near the belt 

drive while the pump was in operation. 

I take note of the fact that in the Thompson Brothers Coal 

Company case, the Commission adopted its "likelihood of contact 

and injury" test after analyzing the "may cause injury" language 

of section 77.400(a). The comparable standard for surface metal 

or nonmetal mines, including open pit mines, 30 C.F.R. 

§ 56.14001, contained the identical language found in 

section 77.400(a), and it was in effect at the time of my 

decision in Leblanc's Concrete &Mortar Sand Company. However, 

section 56.14001, has· since been revised and renumbered, and the 

respondent has been charged with a violation of the newly 

designated section 56.14107, which does not contain the language 

which the Commission considered in Thompson Brothers Coal 

Company, and which I relied on in vacating the citation in 

Leblanc' Concrete and Mortar Sand Company. 

The present language found in the cited mandatory standard, 

30 C.F.R. § 56.14107(a), specifically and unequivocally requires 

guarding for any of the enumerated moving machine parts, as well 

as any similar moving parts that can cause injury if contacted. 

The obvious intent of the standard is to prevent contact with a 

moving part. Although the parties presented no specific evidence 

with respect to the physical or technical characteristics of the 

cited pump belt drive, the respondent does not dispute the fact 

that the cited equipment was not guarded, nor has it asserted 

that the equipment was not the kind covered by the standard. I 

conclude and find that the cited pump belt drive was a moving 

machine part within the meaning of section 56ol4107(a), and based 

on the unrebutted and credible testimony of the inspector, 

contact by anyone with the unguarded belt drive in question could 

have resulted in an injury. 

After careful review and consideration of all of the 

evidence in this case, I conclude and find that it supports the 

petitioner's contention that the cited moving machine part which 

could have caused an injury if contacted by anyone was not 

guarded. Although it is true that the pump was located on a 

platform some 20 feet from shore, access to the stairway, 

walkway, and platform where the pump was located were not 

blocked, and the pump was positioned "waist high" within reach or 

contact by anyone walking or standing next to it. Further, while 

it may be true that no one is on the platform when the pump is 

291 
running, and that it is turned off when maintenance is performed, 

I conclude and find that these preventive measures may mitigate 

the gravity and potential hazards against which the standard is 

directed, but they may not serve as a defense to the violation. 

After further consideration of the arguments concerning the 

application of the exception found in subsection (b) of the cited 

standard, I agree with the petitioner's position that the 

exception does not apply, and I reject the arguments of the 

respondent to the contrary. I conclude and find that the 

exception is clearly inapplicab~e on the facts of this case. 

Under the circumstances, and in view of the foregoing findings 

and conclusions, I conclude and find that the petitioner has 

established a violation and the citation IS AFFIRMED. 

size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to Continue in Business 

In conclude and find tha,t the respondent is a very small 

operator, and that the payment of the civil penalty assessments 

for the violations in question will not adversely affect its 

ability to continue in business. 

History of Prior Violations 

The respondent has an excellent compliance record and has 

not previously been cited with any violations of the Act. 

Gravity 

The inspector concluded that any injuries resulting from the 

violations were unlikely and he concluded that the violations 

were not significant and substantial. I agree with those 

determinations, and I conclude and find that the violations were 

non-serious. 

Negligence 

The Act imposes a high degree of care on a mine operator to 

insure compliance with all mandatory safety standards and to 

preclude injuries to miners. The inspector found a moderate 

degree of negligence with respect to both of the violations. I 

conclude and find that both violations were the result of the 

respondent's failure to exercise reasonable care. I agree with 

the inspector's moderate negligence finding with respect to the 

guarding violation, and with respect to the parking brake 

violation, I conclude and find that it was the result of a low 

degree of negligence on the part of the respondent. 

292 
Good Faith Compliance 

I conclude and find that he respondent demonstrated rapid 

good faith compliance in correcting the cited conditions and 

abating the violations. 

Civil Penalty Assessments 

Based on the foregoing findings and conclusions, and taking 

into account the civil penalty assessment criteria found in 

section 110 (i). of the Act, I conclude and find that a civil 

penalty assessment in the amount of $20 is reasonable and 

appropriate for Citation No. 3431917 (guarding violation), and 

that a civil penalty assessment in the amount of $15 is 

reasonable and appropriate for Citation No. 3431918 (parking 

brake violation). 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

of $20 for section 104(a) Citation NO. 3231917, February 14, 

1991, 30 C.F.R. § 56.14107(a), and a civil penalty assessment of 

$15 for section 104{a) citation No. 3431918, February 14, 1991, 

30 C.F.R. § 56.14101(a) (2). Payment shall be made to the 

petitioner (MSHA) within thirty (30) days of the date of this 

decision and order, and upon receipt of payment, this matter is 

dismissed. 

~e~ Administrative Law Judge 

Distribution: 

Michael K. Hagan Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 339 1371 Peachtree Street, NE., Atlanta, 

GA 30367 (Certified Mail) 

J. Ross MacBeth, Esq., 2543 US 27 South, Sebring, FL 33872 

(Certified Mail) 

/ml 

293 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 101992 

LARRY E. SWIFT, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. PENN 90-198-D 

MSHA Case No. PITT CD 90-09 

PITT CD 90-19 

Dilworth Mine 

ORDER OF DISMISSAL 

Before: Judge Melick f\ 

Complainant requests ap":i;>rova1 · to withdraw hik \,complaint in 

the captioned case. Under the circumstances here~14, permission 

to withdraw is granted. 29 C .• R. § 2700.11. Thi case is 

therefore dismissed. 

Law Judg, 

',~~ w ~ Distribution: 

Larry E. Swift, Chairman 1 UMWA, Local Union 1980, District No. 4, 

Health & Safety Committee, 206 S. Walnut Street, Masontown, PA 

15461 (Certified Mail) 

Walter J. Scheller III, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 

(Certified Mail) 

Thomas D. Shumaker, District No. 4, UMWA, 32 South Main Street, 

Masontown, PA 15461 (Certified Mail) 

/fb 

294 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 260, 1244 SPEER BOULEVARD 

DENVER, CO 60204 

FEB 111992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NAVASOTA MINING COMPANY 

IN CORPORA TED, 

Respondent 

NAVASOTA MINING COMPANY 

INCORPORATED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

Bef oreg Judge Lasher 

. . 

: 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 91-101 

A.C. No. 41-02847-03525 

Gibbons Creek Mine 

CONTEST PROCEEDING 

Docket No. CENT 92-21-R 

Citation No. 32422222-03; 9/28/91 

Gibbons Creek Mine 

Mine I.D. 41-02847 

DECISION 

These two proceedings (one penalty and one review case) were 

consolidated for processing by my oral order on December 4u 1991. 

In the penalty docket, the Secretary of Labor (herein 

nMSHA") originally sought assessment of penalties for two alleged 

violations described in two Citations, Nos. 3242221 and 3242222. 

Io Citation No. 324221. 

In its Motion to Amend Complaint Proposing Penalty filed 

October 24, 1991, MSHA moved to withdraw this Citation, the 

grounds for which motion, I conclude, being that the violation did not occur. Accordingly, MSHA's motion is granted 

and Citation No. 3242221 will be vacated as reflected in my 

order at the end of this decision. 

295 
II. Citation No. 3242222 

A. Chronology 

This Section 104(a) "Significant and Substantial" Citation was issued on August 20, 1990, by MSHA Inspector Gerald 

Stephen, alleging a violation of 30 C.F.R. § 77.1600 Cc), 

more particularly specified subsequently herein. It was 

"Terminated" on August 22, 1990, by Inspector Stephen after 

Navasota took corrective action to abate the allegedly violative condition originally cited. On August 30, 1990, a 

first Modification issued to change the date of the alleged 

violation from "8-18-90" to "8-17-90." The second modification, numbered 3242222-03, which is the subject of the dispute here, was issued by Inspector Stephen on SeptE!lllber 30, 

1991, changing the standard allegedly infracted from 

77.1600(c) to 77.1600Cb). 

,,. 

B. Nature of the Modification 

The alleged violation, as originally charged to be an 

infraction of 30 C.F.R. § 77.1600(c) 1, described such as 

follows: 

Side clearance of the A-1 haul road proceeding to 

and exiting from the truck dump is hazardous to 

mine workers and such area was not adequately and 

conspicuously marked and warning devices were not 

adequately installed to insure the safety of the 

workerso On 8-18-90, two Watco CH-120 haul trucks 

collided at a location approximately one-fifth mile 

south of the truck dump on the A-1 haul road after 

failing to complete a lane changeu resulting in 

fatal injuries to a coal truck operator. 

l This standard 0 under the general heading "Loading and 

Haulage" provides: 

(c) Where side or overhead clearances on any 

haulage road or at any loading or dumping location at the mine are hazardous to mine workers, 

such areas shall be conspicuously marked and 

warning devices shall be installed when necessary to insure the safety of the workers. 

296 
Abatement of this alleged violation, as described in 

the Termination issued on August 22, 1990, was achieved as 

follows: 

Stop signs and warning devices such as location 

markers and safety cones were installed as required. Side clearance of the road was improved 

by reducing the topsoil stockpile height to provide better vis.ibility. Traffic patterns were 

modified to prohibit lane changes. 

After the first modification on August 30, 1990, 

described above, the second modification (3242222-03) 

was issued 13 months later, changing the violation 

charged to one of 30 C.F.R. § 77.1600Cb} 2, to wit: 

After additional review of this investigation, 

this Ci ta ti on is modi.£ i.ed as follows: 

1. Change Section 1 - Violation Data, Item No. 8, 

condition or practice to: Standardized traffic 

rules, signals, and warning signs were not posted 

at a location approximately one-fifth mile south 

of the truck dump, on the A-1 haul road where a 

lane change had been permitted by management. A 

fatal powered haulage accident occurred at this 

location, resulting in fatal injuries to Gloria 

Smith, a coal haulage truck operator. 

2o Change Item 9oc$ Part/Section of Title 30 C.F.R. 

tog 77-1600(b) o 

In addition to its contention that a terminated citation 

cannot be subsequently modified, Navasota also contends, inter 

alia, that: 

ao 

2 

The Secretary cannot modify unilaterally or 

otherwise Citation No. 3242222 (which was abatedu 

terminated, and contested before the Commission) 

1600(b} provides: 

Traffic rules, signals, and warning signs shall 

be standardized at each mine and posted. 

297 
by changing, more than 13 months after its issuance, the condition or practice allegedly constituting a violation from an alleged failure to 

provide adequate side clearance on a haul road to 

an alleged failure to post standardized traffic 

rules, a condition or practice completely different in nature from the condition or practice described in the original citation, and 

b. Modification No. 3242222-03 was not issued with 

reasonable promptness and Navasota is prejudiced 

by its issuance. 

It is preliminarily noted that MSHA has conceded that a violation of 30 C.F.R. § 1600(c) did not occur. 3 This takes care 

of the original charge in the original Citation, No. 3242222, and 

permits focusing on the remaining charge of violation--that contained in the modi f ica ti on, No .•. 3242222-03. Is a charge of violation of a new safety standard containing a description of a 

different violative practice or condition properly brought by 

modification of the original citation after such has been abated 

and terminated? 

The "Termination" in question was achieved here by the MSHA 

inspector's completion of MSHA Form 7000-3a (Mar. 85 revised) on 

August 22, 1990, and his checking on Line 8 C thereof (from a 

choice of "Vacated," "Terminated" and "Modified"} 4 that the 

3 At page 2 of its Motion to Amend Complaintu it states 

~At this time 8 the Secretary will not allege that side or overhead clearances on the haulage road which was the subject of the 

investigation were hazardous. More specifically, on page 2 of 

its Amended Complaint, MSHA states: 

It does not appear that a violation of 30 CeF&Ro 

§ 1600(c) occurred; howeveru the Secretary believes that the regulation which should have 

been cited is 30 C.FvR. § 1600(b) 8 which deals 

with traffic rules, signalsu and warning signs. 

4 In addition to these options, including the noteworthy 

alternative of modification, MSHA also at this time could have 

proceeded to issue other newly numbered Citations for any additional violations it believed were committed. 

298 
original Citation was being 11 Terminated." On the form, the 

Inspector indicated that the justification for the action was the 

action taken taken by the mine operator to abate the conditions 

and practices initially alleged to be an infraction. 

Since the "Termination" does not vacate (or modify) the 

Citation, what then does a termination accomplish? Its clearest 

purposes and effects are: 

(a) MSHA's acknowledgement that the mine operator has 

satisfactorily abated the violation charged; 

Cb> an ending of the mine operator's duty to engage in 

further abatement, 

(c) a termination of the mine operator's exposure to 

"failure to abate" enforcement action under Section 

104 Cb) of the Act. 

Most certainly, allowing modification of a Citation to 

change the safety standard and the description of the violation 

would cancel "Ca> and revive the mine operator's duties amd 

exposures under " ( b) 11 and 11 ( c) . " 

In any event, and as Navasota points out, I have previously 

ruled on the issue presented here in a prior matter which is 

presently on Commission review. 5 In my Order Denying Motion for 

Partial Summary Judgment (January 22, 1991) therein, it was held 

that " .•• a Citation can be modified after its termination to 

alter or amend allegations relating to penalty assessment factors 

but not to materially change the nature of the violation charged, 

or the des er iption of the viola ti on charged o 0. 0 11 Since this 

Order was not publishedu a copy thereof is attached as Attachment 

\l'IA 111 heretoo 

That ruling is found applicable to the situation in the 

instant proceedingv where the safety standard itself was unilaterally changed to charge a different violationv and the description of the alleged infraction also was unilaterally modified 

after abatement and termination to indicate a violation of a different nature than that originally charged. 

5 eyprus Tonopah Mining Corp., 13 FMSHRC 1523, 1527 (September 1991), review granted, November 1, 1991. 

299 
Navasota's position 6, replete with a factual background and 

points and authorities, has been reviewed and found meritorious. 

It is therefore adoptedo 7 Since all of MSHA's enforcement documentation (two citations and one modification) are involved herein, and the issues raised thereby are resolved favorably to 

Navasota, the subsequent order disposes of the two proceedings at 

hand. 

ORDER 

lo MSHA's motion to modify the original Citation, No. 

3242222, is DENIEDe 

2. Navasota's contest in Docket No. 92-21-R is found 

meritorious and Modification No. 2432222-03 is VACATED. 

3. Citation No. 3242221 is VACATED. 

4. Citation No. 32422'22 is VACATED. 

5. Docket No. CENT 91-101 is DISMISSED. 

~~~ ?f. ;:;~<- J;. Michael A. La sher, Jr. 

Administrative Law Judge 

Distribution: 

Michael H. Olvera, Esq., Office of the Solicitor, U.S. Department 

of Laboru 525 Griffin Street 0 Suite 501, Dallasu TX 75202 

{Certified Mail) 

James Ao Lastowkaq Esq .. 17 JONES, DAY, REAVIS & POGUE, Metropolitan 

Square, 1450 G Street, N.W., Washington, DC 20005-2088 

(Certified Mail) 

ek 

6 Set forth in its "Opposition to Secretary's Motion to 

Amend Complaint and Navasota's Motion to Dismiss." 

7 Th.e posture of this matter as framed by the Motion, 

Opposition, admissions, and pleadings, makes possible final 

trial-level determination of the issues by decision rather than 

by an order denying MSHA's motion. 

300 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

January 2 2, 1991 

ATTACHMENT "A" 

SEC RETA RY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CYPRUS TONOPA H MINING CORP. , 

Respondent 

: 

. 

. 

Docket No. WEST 90-202-M 

A.C. No. 26-02069-05507 

Cyprus Minerals 

ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT 

After the Citation was issued indicating one miner was exposed to the hazard created by the alleged viola ti on, Respondent 

abated the conditions constituting the alleged violation and MSHA 

issued a "termination" of the Citation. 'lbereafter, MSHA issued 

a modification of the Citation to show five miners were exposed. 

Respondent moves for summary judgment on the principle that a 

Citation, once terminated, cannot be modified. The Secretary 

opposes this motion. The Secretary's position is found meritorious and is adopted here as though set forth herein. 

Briefly, a Citation is usually issued during an inspection 

based on an Inspector's observation and understanding of what 

occurred. The Citation has two general aspects--the first describes the nature of the alleged violation, for example, roof 

control~ electricalu etc.u the regulation allegedly infracted, 

and sets a time within which the mine operator must abate the allegedly violative conditionso The second aspect of the Citation 

sets forth penalty assessment factors which are not readily apparent, i.e., negligence and gravity (including the likelihood of 

the contemplated hazard coming to fruition and the number of 

miners exposed)o 1 Finally0 as noted below, the Citation, in 

1 Two points are noted at this juncture: of the four remaining mandatory penalty assessment factors, two factors are not 

mature or ripe at the time of inspection; the mine operator's 

good faith in abatement, and whether the mine operator is going 

to assert an economic defense (inability to pay penalties) in 

mitigation of penalty. Another factor--the operator's previous 

history of violations--is not obtainable until after the inspection and computerized information is tabulated up to the date of 

the inspection. The fourth factor--the operator's size--is usually not ascertained at the time of the inspection which is 

focused on safety and health determinations, rather than on 

penalty assessment factors. (continued) 

301 
Commission procedure and trial practice, serves more as an initial pleading and informs the mine operator and others as to the 

details of MSHA's allegations of violation more fully than does 

the so-called Complaint (Proposal for Penalty) commonly filed by 

MSHA in penalty proceedings. MSHA's administrative termination 

of a Citation does not VACATE it. 

Keeping these points in mind, it is clear that permitting 

MSHA to amend (modify) the Citation in the manner shown is in 

effect an amendment of its initial pleading, does not change the 

nature of the violation alleged, and does not prejudice the Respondent Mine operator. It sets forth MSHA's version of a fact 

question: How many miners were exposed? Respondent can challenge MSHA's version and present its own evidence on this 

questione 

Accordingly, having considered the matter, it is held that a 

Citation can be modified after· its termination to alter or amend 

allegations relating t:o penalty assessment factors but not to 

materially change the nature of the violation charged, or the 

description of the violation charged set forth in the Citation. 

Respondent's Motion for Partial Summary Judgment is DENIED. 

fn. continued 

The second point noted parenthetically is that the number of 

miners exposed to an alleged hazard--in conection with the subject violation charged--is not an element of the alleged viola-

~ on, that is, it is not a critical consideration in determining 

ether the violation charged did occur. Should this matter be 

ted at formal hearing and the evidence showed that three--

not one or f ive--miners were exposed to a hazard, the proper prowould be for the prosecution to move to amend its pleading 

Commission practice, the Citation itself) to conform to the 

encs and such should be done at hearing and granted. 

~i(;,/::~t!7 d ~~d;c:. ~ -- Ml cha el A. lasher, 4i: 

Administrative Law Judge 

stribution: 

Lisa A. Gray, Esq., Office of the Solicitor, U.S. Department of 

Labor, 5015 Wilson Boulevard, Arlington, VA 22203 

R. Henry Moore, Esq., BUCHANAN INGERSOLL PROFESSIONAL CORP., USX 

Tower, 57th Floor, 600 Grant Street, Pittsburgh, PA 14219 

ek 

302 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 12 i992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WALKER COAL COMPANY, 

Respondent 

Docket No. KENT 91-1113 

A.C. No. 15-14422-03553D 

Docket No. KENT 91-1114 

A.C. No. 15-13359-03565D 

No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On January 21, 1992, the Secretary filed a motion to approve 

a settlement between the parties in the above cases. The cases 

include five alleged violations of 30 C.F.R. § 70.209(b), each of 

which was originally assessed at $1000. The Secretary continued 

to assert that the violations resulted from a deliberate act, 

which is denied by the mine operator. The degree of negligence 

is disputed, and the parties agree to the reduction in the total 

penalties from $5,000 to $4,000. 

I have considered the motion in the light of the criteria in 

section llO(i) of the Act and conclude that it should be 

approved. 

Accordingly, the settlement motion is APPROVED. 

operator is ordered to pay within 30 days of the date 

order the sum of $4,000 for the violations charged in 

proceedings. 

1 , f ![,tf;tU::.-.<; ;41:1vt)tM1/L de 

The 

of this 

these 

(/James A. Broderick v· Administrative Law Judge 

Distribution: 

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203 

(Certified Mail) 

Danny R. Ellis, President, Walker Coal Company, P.O. Box 1722, 

Harlan, KY 40831 (Certified Mail) 

/fb 

303 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB.12 1992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. LAKE 91-636 

A.C. No. 11-00586-03654 

v. 

Murdock Mine 

ZEIGLER COAL COMPANY, 

Respondent . . 

Appearances: 

Before: 

DECISION 

Rafael Alvarez, Esq., U.S. Department of Labor, 

Office of the Solicitor, Chicago, Illinois, for 

Petitioner; 

Gregory S. Keltner, Esq., Zeigler Coal Company, 

Fairview Heights, Illinois, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil 

penalty filed by the petitioner against the respondent pursuant 

to section llO(a) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 820(a), seeking a civil penalty assessment of 

$329, for an alleged violation of mandatory safety standard 30 

C.F.R. § 75.507. A hearing was held in St. Louis, Missouri, and 

the parties waived the filing of posthearing briefs. However, I 

have considered their oral arguments made on the record during 

the hearing in my adjudication of this matter. 

Issues 

The issues presented in this proceeding are (1) whether the 

conditions or practices cited by the inspector constitute a 

violation of the cited mandatory safety standard, (2), whether 

the violation was "significant and substantial," and (3) the 

appropriate civil penalty to be assessed for the violation, 

taking into account the statutory civil penalty criteria found in 

section llO(i) of the Act. Additional issues raised by the 

parties are identified and disposed of in the course of this 

decision. 

304 
Applicable statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et seq. 

2. Commission Rules, 29 C.F.R. § 2700.l, et seq. 

3. Mandatory safety standard 30 C.F.R. § 75.507. 

Stipulations 

The parties stipulated to the following (Exhibit AIJ-1) : 

1. The Commission has jurisdiction in this proceeding. 

2. The respondent owns and operates the Murdock Mine, an 

underground mine extracting bituminous coal, and the mine 

affects interstate commerce. 

3. The respondent extracted 14,918,109 tons of coal at all 

of its mines ending on February 5, 1991. The Murdock Mine 

extracted 994,759 tons of coal from February 5, 1990 to 

February 5, 1991. 

4. Respondent had 183 violations in the preceding 24 months 

ending on May 30, 1991, at the Murdock Mine and Mine No. 11. 

5. The payment of the full civil penalty assessment for the 

citation in question will not impair the respondent's 

ability to continue in business. 

60 On May l; 1991~ Mine Engineers Richard Gates and Mark 

Eslinger conducted a petition investigation of the Murdock 

mine. A chemical smoke cloud was used to trace air from the 

No. 1 and No. 2 working places through the check curtain in 

the No. 3 entry and outby in the No. 3 entry over golf carts 

parked in the entryo The golf carts were located outby the 

last open crosscut. This condition was in unit 2 which was 

driving 1 main west entries off the 2 north off the 3 main 

west off the main south. Mr. Gates issued Citation 

No. 3535675 for an alleged violation of 30 C.F.R. § 75.507. 

Discussion 

Section 104{a) S&S" Citation No. 3535675, issued on May 1, 

1991, cites an alleged violation of 30 C.F.R. § 75.507, and the 

cited condition or practice states as follows: 

The air current used to ventilate the working places of 

unit No. 2, ID 002, was being coursed over nonpermissible power points outby the last open crosscut. 

305 
A chemical smoke cloud was used to trace the aircurrent from 

the No. 1 and No. 2 working places through the check curtain 

in the No. 3 entry and outby in the No. 3 entry over golf 

carts parked in the entry. The golf carts were located 

outby the last open crosscut. 

Petitioner's Testimony and Evidence 

MSHA Supervisory Engineer, Mark o. Eslinger testified that 

he is a ventilation supervisor and his duties include supervising 

three ventilation inspectors, and evaluating and approving mine 

ventilation plans. He also serves as a member of an MSHA 

committee that is revising subpart D of the ventilation 

regulations, and he holds a college degree in civil engineering 

and is a registered professional engineer in the State of 

Indiana. Mr. Eslinger confirmed that he was at the mine on 

May 1, 1991, with MSHA engineer Richard Gates conducting an 

investigation in connection with a section lOl(c) modification 

petition concerning the application of section 75.1105, and the 

ventilation of transformer stations (Tr. 4-8). 

Mr. Eslinger confirmed that Mr. Gates issued the citation, 

and that he is his supervisor and was with him at all times. 

Mro Eslinger stated that upon arriving on the No. 2 unit he 

observed that the check curtains that were placed across the 

neutral entries were "standing out like a sheet in the wind" and 

were leaning in an outby direction away from the face, which 

indicated that air was coming in and around and under the 

curtain. He identified Exhibit R-7 as a sketch of the prevailing 

conditions as he observed them, and he confirmed that the air was 

blowing in the outby direction away from the face at the "pullthrough curtain" and he marked the location of that curtain on 

the sketch (Tr. 8-12). 

Mr. Eslinger stated that he traced the movement of the air 

with a smoke tube test to verify that it was pulling through the 

curtain in question in an outby direction in the direction of the 

arrows shown in entry No. 3 as shown on the sketch. He also 

found air flowing in, around, and under another curtain in the 

entry and it was standing out "like a sheet in the wind on a 

clothes line". Two company officials were present when he 

performed his tests. He also determined that the air was flowing 

from the last open crosscut into the No. 3 entry, and he traced 

the air between the No. 2 and No. 3 entry and found that the air 

was coming out of the working place of the No. 2 entry into the 

last open crosscut (Tr. 13-15). He further explained the smoke 

tests which he conducted to confirm where the ventilation air was 

coursing through the entries, and he marked these locations on 

his sketch (Tr. 15-18). 

Mr. Eslinger stated that after conducting the tests he 

informed mine superintendent Russ Carpenter that "I have a 

306 
problem here. You've got a violation of 75.507 11 • Mr. carpenter 

questioned his test results, and Mr. Eslinger then decided to 

conduct a tracer gas study to determine the actual course of the 

air and to confirm his belief that the air was coming out of the 

No. 2 entry working place and was flowing into the neutral 

returns (Tr. 19). Mr. Eslinger explained how he and Mr. Gates 

conducted the tracer gas test, including the collection of bottle 

samples to test the atmosphere. He identified exhibit P-4 as the 

laboratory results of this testing, and he confirmed that they 

established that there was a violation of section 75.507, because 

air had passed the working faces and was being coursed over 

nonpermissible power connection points, which he identified as 

carts, rectifiers, belt drives, transformers, and starter boxes. 

In short, the air was passing over all of this nonpermissible 

equipment and power points located in the neutral entries 

(Tr. 19-23) • 

Mr. Eslinger stated that the air coming off the face was 

return air which was coursing 'Over·and into the mine. 

Section 75.507, provides that all power connection points outby 

the last open crosscut shall be in intake air. Since the air had 

passed two working faces, it would be considered return air for 

purposes of section 75.507, and a violation. He explained the 

location of the last open crosscut, and marked it on the sketch 

(Tr. 24) , 

Mr. Eslinger stated that after informing Mr. Carpenter of 

the violation, Mr. Carpenter opened a door in the No. 3 travel 

entry, and this permitted more air to flow in the neutral entries 

and it put pressure against the pull-through curtain. 

Mr. Eslinger confirmed that he then determined that the air no 

longer pulled under and around the curtain. He also determined 

with a smoke test that the air no longer coursed down the No. 3 

entry. He considered this to be abatement, and Mr. Gates abated 

the violation (Tr. 25-26). 

Mr. Eslinger stated that the violation was the result of 

moderate negligence because the unit was new and mining had just 

started at that location and management should have taken care to 

see that the a was coursed in the proper direction (Tr. 26). 

He believed that the likelihood of an injury was "reasonably 

likely11 because less than two months earlier there was an 

ignition in the same part of the mine, and an investigation of 

that incident disclosed that there was in excess of one percent 

methane in the working places and in the neutral entries. 

However, he found no excessive levels of methane on the section 

on the day of his inspection (Tr. 27). 

Mr. Eslinger stated that he considered the violation to be 

significant and substantial because he believed there was a 

possibility of an explosion, and there was a reasonably likely 

chance of this happening because of the methane which was found 

307 
two months earlier in all of the sections driving in a westerly 

direction. He also confirmed that he considered the "real 

seriousness" of the situation in light of the fact that methane 

is produced in the working places and it could drift over the 

non-permissible power points in the neutral entries in question. 

He confirmed that the pre-shift and on-shift books were checked 

on the day of the inspection and there was no indications of any 

excessive methane violations (Tr. 29-31). 

Mr. Eslinger stated that the No. 6 and No. 7 entries were 

return air courses, and that entries No. 2 thru 5 were neutral 

entries (Tr. 32-43). He confirmed that a violation of 

section 75.507, rather than the ventilation plan, was cited 

because the air was coming from the last open crosscut and 

flowing over power connection points (Tr. 35). After the door 

was opened, the pressure was going in the other direction and the 

air was coursed down the last open crosscuts. He confirmed that 

with the door closed, the air coursing down and across the nonpermissible power po_ints had·-a1ready passed working faces and it 

was therefore return air at that point coursing down over the 

non-permissible equipment (Tr. 36). For purposes of section 

75.507, the air that has passed a working face is considered to 

be return air {Tr. 37). Mr. Eslinger described the door which 

was open and subsequently closed to abate the violation, and he 

stated that "I was told that the door was normally left closed" 

(Tr. 38). 

On cross-examination, Mr. Eslinger confirmed that once the 

intake air in the No. 1 entry passes the first working face in 

that entry it is considered return air for purposes of 

section 75.507, but not for the purposes of separate splits, and 

separate intake spl would not be necessary for the other 

entries. He explained that one continuous air split can be used 

the one unit in question, which is comprised of seven 

entries, but all of the equipment inby the last open crosscut has 

to be permissible, and he further explained as follows at 

(Tr. 39-41)~ 

Q. Well, permissibility aside for just a moment, if I 

understand your testimony correctly then, as soon as we hit 

entry No. 1 we 1 ve got return air for purposes of 507? 

A. Correct. 

Q. We don't have return air for purposes of ventilating the 

remaining 5, 6 working faces? 

A. For the purposes of separate splits you do not have. It 

is still intake air, sir. 

Q. I thought intake and return had to be separate. They're 

not here though, are they? 

308 
A. Intake and return air courses have to be separated by 

stoppings. 

Q. Well, it sounds to me like there are two different 

definitions of return air then, is that fair to say? 

A. No, I think there is one definition of return. 

Q. And what is that definition? 

A. I think -- well, excuse me for a second. You know, 

I look at return air as air that has ventilated the last 

working place on any split of any working section, any work 

that area, whether pillar or non-pillar. 

If air mixes with air that has ventilated the last working 

place on any split on -- of any working section or any work 

area, whether pillared or non pillared, it is considered 

return air. 

For the purpose of the existing 75.507, air that has been 

used to ventilate any working place in a coal mine producing 

section of pillared air or air that has been used to 

ventilate any working space, if such air is directed away 

from the immediate return is return air. 

Q. Where are you coming up with that second definition of 

return air? 

A. Out of the our program policy manual. 

And at (Tr. 45, 51): 

Q. Now 1 for purposes of the citation in 75.507, the air 

that went over those golf carts you've told us would be 

considered return air? 

A. That 9 s correct. 

Q. What about for purposes of ventilation? 

What would the air be considered? 

A. That air is return air, sir. 

Q. It's past all the working faces when it got to the 

golf carts? 

A. No. I'm going off of 507. Really there is no 

definition of that air between those -- between those 

two check points. That is to me return air because it 

came off the last open cross-cut. 

309 
* * * * * * 

Q. But you yourself described earlier in your direct 

testimony that the air in these neutrals was I believe 

neutral intake air. 

A. Yes. The air that traveled in outby this first main 

west working unit was intake -- neutral intake air. 

* 

Q. So what do you call the air that passes over the golf 

carts is all I want to know. 

A. I call it return air, sir. 

Q. And that is for purposes of 75.507? 

A. That's correct. We have a problem here. The air is 

coming off the last operr cross-cut. If the air was flowing 

in the other direction, yes, then it would have been intake. 

But then the air would have been going to the working places 

and you had a violation of 75.326. 

Mr. Eslinger confirmed that in the context of ventilation, 

and for purposes of separate air splits, the intake air passing 

the No. 1 entry from the No. lA entry remains intake air until it 

travels outby and down the No. 6 and No. 7 entries. However, for 

purposes of permissibility and section 75.507, the air is 

considered return air after it passes over the first working face 

(Tr. 57). He explained that this air is gaining methane and coal 

dust as it goes across the face and it is important that it not 

flow over nonpermissible power points (Tr. 58). 

Mr. inger stated that he found no deliberate attempt by 

the respondent to course the air down the No. 3 entry, and he 

confirmed that the ventilation check curtains and stoppings were 

properly located pursuant to the mine ventilation plan (Tr. 42). 

Mr. Eslinger confirmed that the problem concerning the 

violation was return air leakage from the No. 1 and No. 2 entries 

into the No. 3 entry (Tr. 43). He confirmed that the golf carts 

referred to in the citation were the first power connection 

points that the return air flowed over, and this was the most 

serious aspect of the violation because people could drive into a 

possible explosive mixture of gas and ignite the methane 

(Tr. 45). Methane could have come out of the No. 1 or No. 2 

entries and flowed over the golf carts (Tr. 52). 

Mr. Eslinger confirmed that tests were made to determine the 

volume of air-passing the check curtain and that the tracer gas 

essentially showed that air was moving from one location to 

another. Conceding that air leakage around check curtains is not 

310 
unusual, he would, however, not expect to find tracer gas outby 

two sets of curtains if the section were properly ventilated 

(Tr. 55-56). He also confirmed that he made no tests to 

determine the amount of coal dust in suspension, and that the 

methane he found was less than one percent and was not in the 

explosive range (Tr. 56). 

Respondent's Testimony and Evidence 

Michael L. Woods, section foreman, stated that at the time 

the citation was issued he was serving as the mine manager of 

safety and training (Tr. 71). He confirmed that he was with 

Mr. Eslinger and Mr. Gates the entire time during their 

inspection and he explained what transpired, including the gas 

tests. He confirmed that he took an air quantity reading in the 

last open crosscut before the citation was issued and found 11 29,500 and something". He confirmed that Mr. Eslinger informed 

Mr. Carpenter that "we had a problem, that there was return air. 

The air that had swept rooms J.:and 2 was going outby over power 

connection points which is a violation" (Tr. 74). Mr. Eslinger 

then told Mr. Gates "I'll have you write this" (Tr. 74). 

Mr. Woods stated that attempts were made to put a solid 

curtain across the No. 2 entry and putting up a curtain regulator 

across the No. 1 entry. However, this did not correct the 

problem and the only way to correct it was to open the door and 

this took care of the problem to the inspectors satisfaction 

(Tr. 76). Mr. Woods stated that the door was normally kept 

closed "to hold the air". The door was on a haulage room, and 

after equipment passed in and out, the door would be opened and 

then closed (Tr. 77). 

Mr. Woods stated that he did not discuss whether he believed 

there was a violation with Mr. Eslinger or Mr. Gates, but that 

Mr. Carpenter did. Mr Woods did not believe that there was a 

violation because he was always taught that intake air does not 

become return air until it passes the last working place. He 

considered the air passing over the golf carts to still be intake 

air (Tr. 78). 

On cross-examination, Mr. Woods stated that he saw nothing 

wrong in the air passing through working entries No. 1 and No. 2, 

and then going over non-permissible points because "It's intake 

air. It 1 s not return air yet" (Tr. 80). He believed that this 

was an acceptable mining practice and that he would not knowingly 

allow return air to pass over power connection points (Tr. 81). 

Mr. Woods stated that methane monitors are located on the 

continuous mining machines and the monitor will shut down a 

machine if excess methane is liberated (Tr. 81-82). The machines 

will deenergize before a methane problem develops (Tr. 84). 

311 
David stritzel, respondent's director of health and safety, 

testified that he has been involved in coal mining for 24 years 

and that he designed the mine ventilation system and plan. He 

testified that it is common knowledge that "return air" is air 

"that has passed the last working place on a section and it exits 

the mine toward the mine fan" (Tr. 89). This was the definition 

he learned from an "engineering standpoint" while in college and 

during his prior employment with MSHA. He stated that although 

the air in the No. 3 entry where the golf carts were located is 

termed "neutral air", it is nonetheless "all in the same as 

intake air" because of its location and proximity to the return 

air course and intake air course and the direction that the air 

courses in those set of entries" (Tr. 90). 

Mr. Stritzel was of the opinion that the section 75.507 

application of the definition of return air, if applied in a 

general mining context, would cause severe problems throughout 

the industry with respect to the location of underground power 

distribution, belt lines, leakage, and stoppings. Most of the 

problems would center.around mines·employing a blowing 

ventilation system operating off positive pressure. The natural 

air flow direction on a positive system forces the air in an 

outward direction on neutral entries and it is physically 

impossible to maintain absolute control over the ventilation 

movement through the mine, and there will be leakages (Tr. 91). 

Mr. stritzel stated that the intent of the law is that it is 

to be applied in a practical sense manner so that mine operators 

can comply and stay in business. In his opinion, compliance with 

section 75.507, as interpreted by MSHA in this case, would 

basically put a mine operator who employs the blowing ventilation 

system out of business. He stated that the respondent has such a 

mine in Illinois (Tr, 91-92), 

Mr. Stritzel stated that sections 75.308 and 75.309 refer to 

specific mine locations where air quality and methane tests must 

be made, and section 75.309 requires methane tests to be made 

from the last working place outby where the air returns from the 

section out to the point where it enters another return air 

split, At that point, the air is considered to be return air 

(Tr. 93). 

Mr. Stritzel stated that the prior methane ignition referred 

to by the inspector was not remotely similar to the existing 

conditions at the time the citation in this case was issued and 

be explained the differences (Tr. 93-94). 

Mr. Stritzel stated that according to the mine ventilation 

plan the air traversing across the last open crosscut is 

classified as intake air because "its specified in the plan and 

it meets the definition outlined in the law" {Tr. 94). He 

believed that opening the door or putting up regulators to abate 

312 
the violation presented problems. He stated that opening the 

door was a direct violation of state law and "goes against all of 

our training Programs that we've had in existence for years 

whereby we've preached to our people to always close the door" 

(Tr. 95). He further stated that there have been many instances 

where ventilation doors were inadvertently left open and the air 

was short circuited throughout the mine, resulting in fatal 

methane ignitions and explosions. The erection of intake 

regulators or curtains which would result in the elimination of 

30% of the ventilation being delivered to the section, poses a 

methane control risk at the face area because of lower air 

velocities. There was no doubt in his mind, within a reasonable 

degree of engineering certainty, that the air coursing over the 

golf carts was intake air (Tr. 96). 

On cross-examination, Mr. Stritzel acknowledged that he 

would be concerned about air that has passed by the first entry 

working face passing over nonpermissible power points or 

equipment because it could contain methane, and he indicated that 

methane tests are made for this reason (Tr. 98). Referring to 

the sketch which depicted the section or unit at the time the 

citation was issued (exhibit R-7), Mr. Stritzel stated that the 

air passing the No. 1 entry working face would not cause him 

great concern because the ventilation is sufficient in those 

areas and methane which may be liberated is diluted (Tr. 100). 

He stated that he would not place nonpermissible equipment in 

that area because the law prohibits it, but under proper testing 

procedures, he would not be concerned (Tr. 101). However, there 

is always the possibility of a methane ignition, and methane may 

be liberated at higher concentrations (Tr. 103). 

Mro Stritzel confirmed that some of the air coursing across 

the Noo 1 and No" 2 working faces was coursing down the No. 3 

entry and making the curtains stand out, but that the majority of 

the air was still sweeping the other faces (Tr. 106). He 

characterized the air coursing down the No. 3 entry as "an 

imbalance in the pressure", and he explained that it was near 

impossible to have absolute control over all of the air because 

of the presence of two splits of air at one location within three 

or four crosscuts of the face and the air is going in many 

different directions and is regulated by pressure. He did not 

disagree with the inspector's finding with respect to the 

direction of the air as confirmed by his smoke tests, and he did 

not dispute the fact that the air was passing over the 

nonpermissible golf carts (Tr. 108). 

Mr. Stritzel stated his position as follows at (Tr. 108-

110) : 

THE WITNESS: I didn't feel there was a violation of 

of law or a problem to start with, that there was a need for 

313 
--anything. The imbalance would be corrected as we further 

developed those entries and got them away from that split. 

JUDGE: Is the reason that you though that there was 

not any problem or not any ventilation because of your 

definition of intake air? 

THE WITNESS: No, sir. It was because of what the 

definition is explained in the law of return air as well as 

what we outlined in our ventilation plan where we identify 

on the sketches the location for the 9,000 CFM air reading 

on the unit on each unit. 

And that area under 301 of the law specifies that air 

is to be taken in the line of pillars that separates the 

intake from the return. At that point it doesn't become 

return air until it passes that point. 

* * * * * * * 

JUDGE: In other words, does your ventilation plan 

allow for air that has passed over two working faces to 

course down a neutral entry and over nonpermissible 

equipment? Is that allowable under your ventilation plan? 

THE WITNESS: I don't think it's spelled out anywhere 

even in the law. 

Mr. Stritzel further believed that the air coursing over the 

golf carts was still intake air, and not return air, and that 

under these circumstances, there was no violation of 

section 75.507 (Tr. 111-112). 

Petitioner 1 s Arguments 

Petitioner asserted that the facts in this case are not in 

dispute and that the crucial issue is the question of what 

constitutes intake air and what constitutes return air. 

Petitioner argued that pursuant to the mine ventilation plan, 

when mining is taking place in the seven entries, the air 

sweeping through entries No. 1 through No. 7 recognized by 

MSHA as intake air so that the respondent does not have to 

establish air splits at the different intake entries. 

Petitioner asserted that it is recognized that when air 

passes through a working face it becomes contaminated. If this 

contaminated air seeps down to the neutral areas where nonpermissible equipment is located, miners would be exposed to a 

methane ignition hazard because contaminated air sweeping the 

face and then passing over nonpermissible equipment can cause an 

explosion. Petitioner concludes that regardless of whether the 

314 
air is characterized as "intake, neutral, A,B,C,D, whatever word 

you want to give that air", for purposes of section 75.507, the 

contaminated air is no longer intake air. It is return air 

(Tr. 118-120). 

Respondent's Arguments 

Respondent disagreed with the petitioner "calling the air 

what we like". Respondent· argued that pursuant to 

section 75.507, there must be a standard by which an operator can 

determine whether not it is in compliance with the law. 

Respondent asserted that one cannot say that "it doesn't 

matter if this is intake or return air. It's just possibly got 

methane in it and that potentially leads to an explosion" 

(Tr. 121). Respondent agreed that the issue here is "what is 

return air", and it pointed out that Judge Weisberger considered 

the definition of "return air" in Secretary of Labor v. Shamrock 

Coal Company, 10 FMSHF.C 2098 1'·2105, and relied on the definition 

found in the Dictionary of Mining, Minerals, and Related Terms. 

Respondent asserted that the dictionary definition of return 

air "is air which has circulated the workings and is flowing 

towards the main mine fan". Respondent stated that "that's not 

what we have here", and it took the position that in this case 

the air has not circulated the workings, and at most, it had only 

passed by two or three working places. (Tr. 121-122). 

Respondent concluded that MSHA's reliance on the definition 

of return air in its policy manual is not necessarily enforceable 

and places the respondent at a great disadvantage "because it 

essentially allows MSHA to fliplop its interpretation of terms". 

Respondent concluded further that with respect to the air going 

by two or three working places "all of a sudden its return air 

when its' clear that when this particular issue has come up 

before the definition that Mr. Stritzel talked about, the common 

sense description definition, is the one that has been fallen 

back on 11 (Tr. 121-122) 0 

Findings and Conclusions 

The respondent is charged with a violation of mandatory 

safety standard 30 C.F.R. § 75.507, which provides as follows: 

"Except where permissible power connection units are used, all 

power-connection points outby the last open crosscut shall be in 

intake air". The inspector issued the citation after finding 

that the air current used to ventilate the working places was 

being coursed over non-permissible power points (golf carts) 

outby the last open crosscut. The citation reflects that a smoke 

cloud test was conducted to trace the air current from the No.1 

and No. 2 working places through a check curtain in the No. 3 

entry and outby over the golf carts parked in that entry. 

315 
The record reflects that in the course of an inspection on 

May 1, 1991, in connection with a section lOl(c) modification 

petition, MSHA mining engineers and authorized representatives of 

the Secretary Mark Eslinger and Richard Gates observed the 

conditions which resulted in the citation issued by Mr. Gates. 

Although Mr. Gates did not testify in this case, Mr. Eslinger, 

who is Mr. Gates' supervisor, and who was with him when the 

citation was issued, testified credibly as to the conditions 

which they jointly observed, and Mr. Eslinger concurred that the 

cited conditions constituted a violation of section 75.507. 

Although the narrative descrip~ion of the alleged violative 

conditions is not a model of clarity, it seems clear to me that 

the parties are in agreement as to the critical issues presented 

in this case, including their respective positions concerning the 

alleged violation. 

The record establishes that the area where the alleged 

violation occurred consisted of seven entries as shown on a map 

and sketch (Exhibit R-7), referred to by the witnesses. The No. 

1 and lA entries were'intake entries, entries No. 2 through No. 5 

were neutral entries, and the No. 6 and No. 7 entries were return 

air courses. The petitioner takes the position that the intake 

air which passed through the No. 1 and No. 2 working places and 

faces, and then coursed its way outby the last open crosscut and 

down the No. 3 neutral entry through some check curtains and over 

nonpermissible power connection points (golf carts and other 

electrical equipment described by Mr. Eslinger) was return air 

for purposes of section 75.507. Since that regulatory section 

requires that all power connection points be located in intake 

air, the petitioner concludes that a violation occurred when.the 

return air passed over the nonpermissible equipment, and that the 

citation should be affirmed. 

The respondent takes the position that the air passing over 

the nonpermissible power connection points outby the last open 

crosscut in the No. 3 neutral entry was intake air when it passed 

through the No. 1 and No. 2 working places and remained intake 

air as it was coursed through the No. 3 entry and through the 

check curtains in question. Respondent characterized the air as 

uu1eakageui which often occurs in a mine because of pressure 

changes! and it insists that the intake air did not become return 

air until it passed by and through all of the remaining working 

places and reached the return entries. Under these circumstances, the respondent concludes that a violation did not occur 

and that the citation should be vacated. 

The parties are in agreement that the critical issue in this 

case lies in the definition of "return air". In this regard, the 

Dictionary of Mining, Mineral, and Related Terms, U.S. Department 

316 
of the Interior, 1968 Edition, provides the following relevant 

definitions: 

Intake. 

Return. 

The passage by which the ventilation current enter 

a mine. * * * Any roadway underground through 

which fresh air is conducted to the working face. 

* * * Ventilating passage through which fresh air 

is conducted . • • . to the workings. 

Any airway in which vapid air flows from the 

workings to the upcast shaft or fan. * * * Any 

airway which carries the ventilating air outby and 

out of the mine. 

Return air. Air traveling in a return. * * * Air which has 

circulated the workings and is flowing towards 

the main mine fan; vitiated or foul air. 

Return aircourse. Portion.of ventilation system of mine 

through which contaminated air is withdrawn and 

evacuated to surface. 

MSHA's July 1, 1988, Program Policy Manual, Volume V, 

Part 75, page 55, provides the following definition of the term 

"return air" as used in section 75.507, as well as other guidance 

for the application of this section: 

"Return air" . . . . means air that has been used to 

ventilate any working face in a coal-producing section 

or pillard area, or air that has been used to ventilate 

any working face if such air is directed away from the. 

immediate return. (Emphasis added). 

In Shamrock Coal Company, Inc., 12 FMSHRC 2098 (October 

1990), Judge Weisberger affirmed a citation which was issued to 

the mine operator for a violation of 30 C.F.R. 75.507-1, for 

locating a nonpermissible power center in a return entry 

ventilated by return air. In affirming the citation, the judge 

held that the dictionary definition of "return air" (Air which 

has circulated the workings and is flowing towards the main mine 

fan) was consistent with the inspector's credible and unrebutted 

observation, that the power center was located in an entry 

through which return air from the working section was being 

coursed in violation of the cited standard. 

In Eastover Mining Company, 4 FMSHRC 123 (February 1982), 

the Commission affirmed a violation of 30 C.F.R. § 75.507, 

because the mine operator placed a nonpermissible pump control 

box in a return airway. Although the box was not energized, the 

Commission nonetheless affirmed the violation and pointed out 

that the record did not show that the equipment could not or 

317 
would not have been energized in return air. In this regard, the 

Commission stated as follows at 4 FMSHRC 123-124: 

The purpose of this regulation is to prevent methane 

gas explosions. In the presence of methane gas, a 

source of ignition, such as arriving from power 

connections, can course an explosion. 

In Pyro Mining Company, 7 FMSHRC 517, (April 1985), 

Judge Fauver affirmed two violations of 30 C.F.R. § 75.507, after 

finding that the mine operator allowed return air that had been 

used to ventilate the active mine workings to mix with neutral 

air flowing through two track entries where nonpermissible 

electrical equipment (conveyor belt drive motors, battery 

charger, water pumps) were located. In one instance, return air 

was mixing with neutral air in part because stoppings had been 

removed and were not replaced, and in the second case, return air 

was being dumped into neutral air at a damaged overcast. 

In Southern Ohio'Coal Company, 1 FMSHRC 1642, 1663 (October 

1979), I affirmed a violation of section 75.507, after finding 

that a nonpermissible battery charging unit was located in a 

return air course. I rejected the operator's contention that the 

unit was located in intake air. The unit was located in an area 

where a curtain had been installed as a temporary stopping in 

order to separate the intake from the return. The inspector 

testified that the crux of the violation was the fact that the 

air sweeping over the battery charging unit was return air, and 

that it prevented or reduced intake airflow over the charger. 

The inspector concluded that ventilating the nonpermissible 

charger in return air posed an explosion hazard. I concluded 

that the positioning of the curtain determined whether the unit 

was located intake or return airo 

Mr. Eslinger's hearing testimony regarding the essence of 

the violation in this case is consistent with his pretrial 

deposition testimony of October 31, 1991 (Exhibit R-4). At 

deposition Mr. Eslinger testified that the path of the intake air 

which had traveled up the intake entries and past the No. 1 and 

No. 2 working places was such that it flowed over nonpermissible 

power connection points. He stated that a violation of section 

75.507 occurred when he determined by a smoke test that the air 

which had passed through the two working places in question was 

going down and through a check curtain in the No. 3 neutral entry 

and over the nonpermissible electrical equipment (Dep. Tr. 4, 9-

11). He took no tests to determine the air volume passing 

through the curtain because "The violation exists when the air 

goes from the working place into the neutral entry" 

(Dep. Tr. 25). 

At the hearing, Mr. Eslinger testified that for purposes of 

section 75.507, and in connection with the definition and 

318 
application of the term "intake air", once the intake air in the 

No. 1 entry passed the first working face in that entry, it is 

considered return air and remained return air as it passed by the 

No. 2 place and down the No. 3 entry through the curtain and over 

the nonpermissible equipment. Mr. Eslinger relied on MSHA's 

section 75.507 policy definition of "return air" which defines 

such air as "air that has been used to ventilate any working face 

in a coal producing section". In support of the policy 

definition, petitioner's counsel relied on the fact that intake 

clean air which has passed by one or more working faces where 

coal is being mined has become contaminated air which can longer 

be considered clean intake air. Counsel characterized this air 

as return air, and he maintained that this contaminated air poses 

a potential explosion hazard when it passes over nonpermissible 

electrical power connection points. 

Mr. Eslinger testified at hearing that the definition of 

return air in connection with the application of the requirements 

of section 75.507 (air which nas passed any working face)' does 

not apply in the context of ventilation on separate air splits. 

In this context, he stated that return air is air which has 

ventilated the last working place on any split (Tr. 39-41; 57-

58). This testimony is consistent with Mr. Eslinger's deposition 

testimony where he offered several definitions of "return air", 

in other contexts, as follows at (Tr. 12-13): 

Q52. Okay. What -- tell me if you will what constitutes 

return air? 

A. Return air for the purposes of 507 is air that has 

ventilated a working place. 

Q53o You said for purposes of 507 it 1 s air that's 

ventilated a working place. Does return air have a 

different meaning in another context? 

A. There is another context that talks about air that goes 

all the way across the faces or the places as -- as not 

being return air until it passes -- passes the last working 

place. And that's for the purposes of ventilating where 

you're mining coal. 

Q54o So there's two different definitions of return air? 

A. Well, I could see the policy under 507, the definition 

there. 

Q55. Right. 

A. I believe there's another accepted definition. I -- you, know, I don't find it written. 

319 
Q56. Was -- where is that definition coming from? 

A. That's just a general use definition. I mean, that's 

what we've been taught, that it's not return air until it 

passes the last working place on a section. 

* * * * * * 

The other definition of -- of return air provides from 

the fact that you have to use intake air to ventilate 

your faces, which means that you cannot take return air 

from other -- some other unit. 

So it's just a -- the definition that's used to say 

that when you're mining, let's say in -- on -- I don't 

know what you're calling this, Sketch No. 8 page 17. 

When you're mining coal in face number nine, you don't 

have a different split from mining face number nine 

versus face number eight and face number seven. That's 

so you can use one continuous split of air across all 

the faces. 

* 

Q58. Okay. And that's -- that's another definition -- I 

mean, that's separate from the definition of return air that 

you're using for Section 507? 

A. That's correct. 

Referring to Sketch No. 8, page 17, of the mine ventilation 

plan (exhibit R-1), which depicts a nine entry section, 

Mr. Eslinger explained that in the context of an idle section and 

without regard to section 75.507, the air traveling up the No. 1 

intake entry and then sweeping across all of the nine working 

faces is considered intake air for the purpose of ventilating a 

unit with a separate intake air split, and it does not become 

return air until it passes the last working place at the No. 9 

return. If active mining were taking place, the intake air would 

still be considered intake air until it sweeps past the last 

No. 9 working place, and it may be used to ventilate any mining 

machine cutting at the face (Depo. Tr. 14-17). However, for 

purposes of section 75.507, the intake air which has ventilated 

the No. 1 working place is considered return air, and he 

explained in relevant part as follows at (Depo. Tr. 17-20): 

Q84. Tell me when this intake air becomes return air that's 

coming down entry one. 

A. When it reaches number one working place because that 

air is used to ventilate number one working face. So that 

air that has entered into this working place here passes a 

face and becomes return air for the purposes of 507. Any 

320 
equipment that is inby this rib line right here has to be 

permissible equipment. 

Q88. All right. So we can have a situation then where if 

we're mining coal in one of these nine entries, we don't 

have return air for purposes of ventilating the working 

place, but we do have return air for purposes of 75.507 and 

permissibility? 

A. Correct. 

Q89. (By Mr. Keltner) Okay. What are the -- will you tell 

me what -- and I guess pick your definition and tell me 

which one you're talking about -- what are the 

characteristics of return air? What do you find in return 

air? What do you expect to find in return air? 

* * * * * * * 

A. Well, first of all, different rules apply to return air. 

Return air is carrying away from a working section the 

gases, such as methane, dust, respirable dust, float dust. 

Carrying those dusts away from where the mining is taking 

place. 

Q92. Well, for purposes of 75.507, what -- what makes it 

return air? I mean, is it --

A. Well, it makes it return air when it's ventilated one 

working face. 

Q93o Okayo And -- and if you were to do an analysis of 

that air, I mean, what -- what kinds of things could you 

expect to find in And I~m speaking in terms of 

generalities. 

A. Well, return air can carry methane --

Q94. (By Mr. Keltner) Okay. 

A. -- and respirable and float dust. 

Q95. Do you think anything else that you can -- that you 

find in return air? 

A. Just air from the 

Q96. Oxygen you mean? 

A. Well, you have your, you know, oxygen, nitrogen, carbon 

dioxide, may be carbon monoxide, a few PPM carbon monoxide 

in coal mines. 

321 
Q97. Any other harm -- harmful or explosive gases that you 

might find in it? 

A. Ethane. Ethane is found. Usually other than methane 

and ethane, we don't find them. That doesn't mean you can't 

find them, but generally all you ever see is methane and 

ethane. 

In Jim Walter Resources, Inc., 11 FMSHRC 21 (January 1989), 

the critical issue presented was the definition of the term "last 

open crosscut 11 • In the absence of any statutory or regulatory 

definition of that term, the Commission applied one of the 

definitions of 11 crosscut 11 found in the Mining Dictionary to the 

mining configuration which existed at the time the violation was 

issued. In the instant case, the terms 11 return air" and "intake 

air" are not defined in the mine Act or in MSHA's part 75 

regulations. They are also not defined in the applicable 

ventilation plan. 

Section foreman Woods testified that he "was always taught" 

that intake air does not become return air until it passed the 

last working place. He relied on this interpretation of "intake" 

and "return" air in forming his opinion that the intake air which 

had initially swept by the No. 1 and No. 2 entries and then 

passed outby down the No. 3 neutral air entry and over the 

nonpermissible golf carts and other electrical equipment was 

still intake air and remained intake air until it passed the last 

working places at the No. 6 and No. 7 return entries. Mr. Woods 

saw nothing wrong with using the air which had passed by the 

No. 1 and No. 2 working places to ventilate the no. 3 working 

places where the nonpermissible electrical equipment was located, 

and he believed that this was an acceptable mining practice. 

Safety director stritzel testified that it was "common 

knowledge" that "return air" is defined as "air that has passed 

the last working place on a section and it exits the mine toward 

the mine fan", and that he learned this "engineering standpoint" 

definition while in college and during his prior employment with 

MSHA. Thus, Mr. Stritzel agreed with Mr. Woods that intake air 

does not become return air until it has passed by the 

working place. However, unlike Mr. Woods, Mr. Stritzel 

acknowledged his concern that air which has passed by the No. 1 

entry face and then found its way outby over nonpermissible power 

points might contain methane, and he indicated that he would not 

locate nonpermissible equipment in that area because "the law 

prohibits it". Further, Mr. Stritzel did not disagree with the 

inspector's smoke tests, which confirmed the direction of air 

travel after it swept the two working faces in question, nor did 

he dispute the fact that the air was indeed passing over the 

nonpermissible golf carts. 

322 
Mr. Eslinger acknowledged that he too "was taught" that 

intake air does not become return air until it passed the last 

working place on a section. Although he characterized this 

definition as an acceptable "general use definition", he 

indicated that pursuant to MSHA's policy definition, and insofar 

as section 75.507, is concerned, "return air" is considered air 

which has ventilated g working place or one working face. In 

short, Mr. Eslinger relied on the 1988 policy definition of 

return air (air which has been used to ventilate any working 

face) to support the violation. 

I take official notice of the fact that MSHA's Underground 

Inspection Manual, March 9, 1978, states in relevant part that 

"For the purpose of Sections 75.507 and 75.507-1, return air 

means air that has been used to ventilate the last working face 

in a coal producing section or pillared area, ••• " (emphasis 

added). Every prior underground coal manual from December 1971 

through June 1974, also define "return air" for purposes of 

section 75.507, as air that hasbeen used to ventilate the last 

working face in a coal producing section. Thus, it would appear 

that MSHA's longstanding inspector's manual definition of "return 

air 11 , prior to the current 1988 policy manual definition, was 

identical to the "general use" and "common knowledge" definition 

which all of the witnesses were "taught" during their mining 

careers, but contrary to the current policy definition. However, 

the parties offered no background information or explanation for 

the initial policy definition of the term "return air" or for the 

change of definition which apparently became effective when the 

July 1, 1988, manual was published. 

In Old Ben Coal Company, 2 FMSHRC 2806, 2809 {October 1980), 

and King Knob Coal Company, Inc., 3 FMSHRC 1417, 1420 (June 

1981), the Commission held that instructions and directives found 

in MSHA 1 s inspectorsi manuals are not officially promulgated and 

do not prescribe rules of law binding on an agency. In King 

Knob, the Commission noted that the Manual "is a relatively 

informal compilation not published in the Federal Register, and 

those factors weigh against deference"v 3 FMSHRC 420 fn.3. 

However; the Commission also stated that in appropriate 

situations "Cases may arise where the manual . . . . reflects a 

genuine interpretation or general statement of policy whose 

soundness commends deference and therefore results in our 

according it legal effect", 3 FMSHRC 1420. Likewise in coal 

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

1989), the Court stated that while MSHA 1 s policy manual may not 

be binding on the agency "we consider the MSHA Manual to be an 

accurate guide to current MSHA policies and practices". 

In support of its defense in this case, the respondent 

relies on the Mining Dictionary definition of "return air" (air 

which has circulated the workings and is flowing towards the main 

mine fan) applied by Judge Weisberger in Shamrock Coal Company, 

323 
supra. During closing arguments at the hearing, respondent's 

counsel. pointed out that the application of the definition of 

return air in Shamrock coal, is consistent with the common sense 

definition advanced by Mr. Stritzel, and that it should be 

followed and applied in the instant case. 

The Mining Dictionary definition relied on by Judge 

Weisberger in Shamrock Coal is but one of several relevant 

definitions of "intake" and "return". The term "intake" is 

defined as "Any roadway underground through which fresh air is 

conducted to the working face". - The term "return" is defined in 

part as any airway in which vapid air flows from the workings, 

outby and out of the mine. "Return air" is also defined as 

vitiated or foul air, and "return aircourse" is defined as a 

portion of the ventilation system through which contaminated air 

is withdrawn. The common thread in all of these definitions is 

the fact that ventilation air which has circulated or passed by 

active working places is not fresh air, but air which is fouled 

or contaminated. In short, intake .. air is "clean and 

uncontaminated", while return air is "dirty and contaminated". 

The respondent does not dispute the fact that the air which 

had passed the No. 1 and No. 2 working places and faces was 

passing over nonpermissible electrical equipment. Further, the 

respondent has not rebutted Mr. Eslinger's credible testimony 

that air which has passed any working face is carrying away 

contaminants such as methane, coal dust, and other mine gasses, 

and that such air poses a potential explosion hazard if it were 

to sweep over nonpermissible electrical power-connection points 

and equipment. Indeed, respondent's safety director Stritzel 

agreed that methane ignitions are always possible and that he 

would be concerned about air which has passed one working face 

passing over nonpermissible power points. 

On the facts of this case, and taking into account all of 

the aforementioned circumstances, the respondent's assertion that 

the intake air which had swept only one or two working places and 

faces remained intake air at all times and under all 

circumstances until it had swept all of the working places and 

faces and exited out of the returns IS REJECTED. The intent and 

purpose of section 75.507, is to insure that nonpermissible 

electrical power connection points, which are potential sources 

of ignition, are located only in areas which are ventilated by 

uncontaminated and clean intake air. Although I recognize the 

fact that methane tests, proper ventilation, and other 

precautionary measures may be taken to insure against potential 

explosions or fires, the acceptance of the respondent's 

interpretation of "return air" would permit the use of 

contaminated air to ventilate nonpermissible electrical equipment 

which is a recognized potential source of ignition, particularly 

where unexpected levels of methane may be released at any time 

during mining. Under the circumstances, I conclude and find that 

324 
MSHA's policy definition and application of the term "return 

air", for purposes of section 75.705, is reasonably sound and not 

inconsistent with the aforementioned dictionary definitions. I 

further conclude and find that the inspector's reliance on MSHA's 

policy definition was reasonable and proper, and that the 

petitioner has established a violation of section 75.507, by a 

preponderance of all of the credible evidence adduced in this 

case. The contested citation is therefore AFFIRMED. 

Significant and Substantial Violation 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 

30 C.F.R. § 814(d) (1). A violation is properly designated 

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

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

illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 822, .825 (April 1981). 

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

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard--that is, a 

measure of danger to safety-contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

in an injury; and (4) a reasonable likelihood that the 

injury in question will be of a reasonably serious 

nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129 (August 1985), the Commission stated further as follows: 

We have explained further that the third element of the 

Mathies formula "requires that the Secretary establish 

a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury. 11 

U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance with the 

language of section 104(d) (1), it is the contribution 

of a violation to the cause and effect of a hazard that 

must be.significant and substantial. U.S. Steel Mining 

325 
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. 

steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75 

(July 1984). 

In United States Steel Mining Company, Inc., 7 FMSHRC 327, 

(March 1985), the Commission reaffirmed its previous holding in 

U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984) that it 

is the contribution of a violation to the cause and effect of a 

hazard that must be significant and substantial, and that a 

determination of the significant and substantial nature of a 

violation must be made in the context of continued normal mining 

operations, including the question of whether if left 

uncorrected, the cited condition would reasonably likely result 

in an accident of injury. 

Mr. Eslinger confirmed that he found no excessive levels of 

methane on the section on the day of his inspection, and that his 

review of the pre-shift and on-shift books did not reflect any 

excessive methane violations. Mr. Woods confirmed that methane 

monitors located on the min~ng machines would shut down a machine 

in the event excess methane were liberated, and Mr. Stritzel 

believed that the ventilation was sufficient. 

Mr. Eslinger's opinion that the violation was significant 

and substantial was based in part on the fact that two months 

prior to his inspection an ignition occurred in the same mine 

area and an investigation disclosed in excess of one percent 

methane in the working places and neutral entries. He believed 

that it was reasonably likely that this would occur again and 

that a possibility of an explosion existed. Mr. Stritzel 

disagreed and he pointed out that the conditions which prevailed 

with respect to this past event were different from the ones 

present at the time of Mr. Eslinger's inspection. 

Mr. Eslinger also based his significant and substantial 

opinion on the fact that methane is produced in the working 

places, and he was concerned that it could drift outby over the 

nonpermissible electrical golf carts and power points. He also 

stated that the golf carts are usually pulled in and parked 

before any methane tests are made with the push-button methane 

detectorsy and he was concerned about gas coming from the working 

places, belt drives, and transformers (Tr. 30-31). He stated 

that nsome of the more serious aspects of it (sic) because people 

could drive into a possible explosive mixture of gas and ignite 

the methane" (Tr. 45). He also indicated that the air is gaining 

methane and coal dust as it sweeps across the face, and it is 

important that it not flow over nonpermissible power points 

(Tr. 58). 

As noted earlier, Mr. Stritzel did not dispute the fact that 

the air which the inspector believed was return air was passing 

326 
over nonpermissible power points, and Mr. Stritzel conceded that 

there is always the possibility of a methane ignition, and that 

methane may be liberated at higher concentrations. Under the 

circumstances, and in the context of continued normal mining 

operations, I conclude and find that a measure of danger to 

safety was contributed to by the violation, and that it was 

reasonably likely that an ignition resulting from the presence of 

nonpermissible electrical power connection points in contaminated 

return air would result in injuries of a reasonably serious 

nature. Accordingly, the Significant and Substantial (S&S) 

finding IS AFFIRMED. 

size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to Continue in Business 

I conclude and find that the respondent is a large mine 

operator. I adopt as my finding the stipulation by the parties 

that the payment of the full civil penalty assessment for the 

violation in question will notadversely affect the respondent's 

ability to continue in business. 

History of Prior Violations 

Taking into account the fact that the respondent is a large 

mine operator, and in the absence of any further evidence to the 

contrary, I cannot conclude that the respondent's compliance 

record is such as to warrant any additional increases in the 

civil penalty which I have assessed for the violation which has 

been affirmed. 

Gravity 

I conclude and find that the violation was serious. 

Negligence 

Mr. Eslinger testified that he found no deliberate attempt 

by the respondent to course the air down the No. 3 entry, and he 

confirmed that the violation was the result of air ventilation 

leakage. The citation reflects a finding of 0 moderate 

negligence", which I find is appropriate, and it is affirmed. 

Good Faith Compliance 

The record reflects that the cited condition was immediately 

corrected and the citation was terminated within an hour of its 

issuance. Under the circumstances, I conclude and find that the 

respondent exercised rapid good faith compliance in correcting 

the cited condition. 

327 
Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, I 

conclude and find that a civil penalty assessment of $275 is 

reasonable and appropriate for the violation which has been 

affirmed. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $275, for Section 104(a) "S&S" Citation No. 

35335675, May 1, 1991, 30 C.F.R. § 75.507. Payment shall be made 

to the petitioner (MSHA) within thirty (30) days of the date of 

this decision and order, and upon receipt of payment, this matter 

is dismissed. 

~«I:~ Administrative Law Judge 

Distribution: 

Rafael Alvarez, Esq. Office of the Solicitor, U.S. Department of 

Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Gregory s. Keltner, Esq., Zeigler Coal Company, 50 Jerome Lane, 

Fairview Heightsv IL 62208 (Certified Mail) 

/ml 

328 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

fIB 12 1992 

CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 91-1295 

A.C. No. 36-01733-03538D 

v. 

JEDDO No. 7 Breaker 

JEDDO-HIGHLAND COAL COMPANY, 

Respondent 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On February 10, 1992, the Secretary of Labor filed a motion 

to dismiss this proceeding on the ground that Respondent on 

January 20, 1992, paid the proposed penalty of $1,100 in full. 

Premises considered, the motion is GRANTED, and this 

proceeding is DISMISSED. 

'7 ' ;( 1,re:uti-ui£ /:/--11 (/t,,;cb,1 z,6';/, '--

.f James A. Broderick 

•./ Administrative Law Judge 

Distribution: 

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Suite 400 Arlington, VA 22203 

(Certif Mail) 

Joseph Vender, Esq., Jeddo-Highland Coal Company, 800 Exeter 

Avenue, West Pittston, PA 18643 (Certified Mail) 

/fb 

329 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 12 1992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

U. S. STEEL MINING COMPANY, 

INC., 

Respondent 

DECISION 

Docket No. WEVA 91-819 

A. C. No. 46-05868-03544 

Pinnacle Prep Plant 

Docket No. WEVA 91-1607 

A. C. No. 46-01816-03771 

Gary No. 50 Mine 

Appearances: Javier I. Romanach, Esq., Office of the Solicitor, 

u. s. Department of Labor, Arlington, Virginia, 

for the Secretary; 

Billy M. Tennant, Esq., U. S. Steel Mining 

Company, Inc., Pittsburgh, Pennsylvania, for the 

Respondent. 

Before~ Judge Maurer 

These consolidated cases are before me based upon petitions 

for assessment of civil penalty filed by the Secretary alleging 

violations of various mandatory standards set forth in Volume 30 

of the Code of Federal Regulations. 

Pursuant to a notice of hearing, these cases were heard on 

October 16, 1991, in Oak Hill, West Virginia. At that hearing, 

the parties proposed to settle both of the citations at issue in 

Docket No. WEVA 91-819. The written motion that was later filed 

requested approval of the respondent's agreement to pay $112, the 

full amount of the proposed penalty for Citation No. 3340442. 

The motion also requested approval of the Secretary's proposed 

vacation of Citation No. 3340443. Based on the Secretary's 

representations, I conclude that the proffered settlement is 

appropriate under the criteria contained in section llO(i) of the 

Mine Act. The terms of this settlement agreement will be 

incorporated into my order at the end of this decision. 

There remained for trial one section 104(a) citation 

contained in Docket No. WEVA 91-1607, and assessed at $20. 

330 
Both parties have filed post-hearing proposed findings and 

conclusions and/or briefs, which I have considered along with the 

entire record in making the following decision. 

STIPULATIONS 

The parties have agreed to the following stipulations, which 

I accept: 

1. The undersigned administrative law judge has 

jurisdiction to hear and decide this case. 

2. Inspector Larry Cook was acting in his official capacity 

as a federal coal mine inspector on March 27, 1991, when he 

issued Citation No. 3741045. 

3. Citation No. 3741045 was properly issued to respondent's 

agents. 

4. Abatement of -the condition cited in the listed citation 

was timely. 

5. The penalty of $20 will not adversely affect the 

respondent's ability to continue in business. 

6. The respondent does not dispute the facts in the 

proposed assessment data sheet (Petitioner's Ex. No. 3). 

DISCUSSION 

Citation No. 3741045, as modified, alleges a violation of 

the mandatory standard found at 30 C.F.R. § 75.512-21

/ and 

charges as follows: 

All underground electric equipment was not being 

examined weekly as required. Records of examinations 

for high voltage disconnects, vacuum circuit breakers, 

transformers and rectifiers show that weekly examinations were made for a three month period from October 

through December 1990. Beginning in January 1991 

through this date (3/27/91) only monthly examinations 

were made and recorded. 

1

/ 30 C.F.R. § 75.512-2 provides as follows: The 

examinations and tests required by § 75.512 shall be made at 

least weekly. Permissible equipment shall be examined to see 

that it is in permissible condition. 

And section 75.512 itself states in relevant part: All 

electric equipment shall be frequently examined, tested, and 

properly maintained by a qualified person to assure safe 

operating conditions. 

331 
The operator does not contest the fact that weekly examinations were not being done on the cited equipment, only that they 

were required in the first instance. Respondent argues that the 

cited equipment is required to be examined on a monthly basis 

only and that is what they were doing at the time the citation 

was written. 

Therefore, the issue presented for decision is whether such 

equipment as high voltage disconnects, vacuum circuit breakers, 

transformers and rectifiers are "electric equipment" required to 

be examined and tested weekly pursuant to 30 C.F.R. § 75.512-2. 

Speaking of section 75.512, the MSHA "Coal Mine Inspection 

Manual: Underground Electrical Inspections," dated June 1, 1983, 

(Petitioner's Ex. No. 6) at page 29 states that: 

The section requires that each individual piece of 

electric equipment, including locomotives, personnel 

carriers, electric track switches and derails, compressors, car hauls,- conveyor units, pumps, rock-dusting 

machines, battery-powered equipment and permissible 

equipment, be examined and tested. The required 

examinations and tests must be thorough enough to 

insure that the electric equipment has not deteriorated 

through neglect, abuse or normal use into an unsafe 

condition that could result in a shock, fire, or other 

hazard to the miners. 

The term "electric equipment" is not defined in the MSHA 

regulatory scheme, but the Secretary has proffered the 

definition used by the Institute of Electrical and Electronics 

Engineers (IEEE). In the IEEE Standard Dictionary of Electrical 

and Electronics Terms (Petitioner's Ex. No. 7)u equipment 

(electrical engineering) is defined as~ 

Equipment (electrical engineering). A general 

term including materials, fittings, devices, appliancesu fixtures, apparatus, machines, etcetera, used as 

a part of 9 or in connection with, an electrical 

installation. 

Respondent maintains that the term "electric equipment," 

within the meaning of § 75.512, means electrically-powered mobile 

or portable equipment which performs a physical task by converting electrical energy into mechanical energy and does not 

include devices in electrical circuits that perform electrical 

functions exclusively. Therefore, respondent argues that since 

transformers, rectifiers, disconnects and circuit breakers are 

normally sited in a permanent location where they remain as 

stationary components of an electrical circuit, they are not 

"electric equipment" contemplated by section 75.512. 

Furthermore, respondent points out that transformers and 

332 
rectifiers perform electrical functions exclusively and unlike 

electric equipment such as shuttle cars, do not transform 

electrical energy into mechanical energy. 

Also, respondent argues that 30 C.F.R. § 75.800-3 and 

30 C.F.R § 75.900-3 require only monthly testing and examination 

of circuit breakers. But I agree with Inspector Cook that 

§ 75.512 is a general inspection requirement that is to be performed on a weekly basis whereas the § 75.800-3 and § 75.900-3 

inspection requirements are additional specific tests to be 

performed on the equipment on a monthly basis. The two sets of 

requirements can logically exist simultaneously. They are not 

mutually exclusive. It is not an either/or proposition. 

I believe the Secretary's interpretation of her own 

regulation is the more reasonable; but even if, for the sake of 

argument, I felt that both the petitioner and the respondent had 

an equally plausible interpretation, it is well-settled that an 

agency's interpretation of its own regulation is "of controlling 

weight unless it is plainly erroneous or inconsistent with the 

regulation." Bowles v. Seminole Rock Co. 325 U.S. 410, 414 

(1945). A regulation must also be interpreted so as to harmonize 

with and further rather than conflict with the objective of the 

statute it implements. Emery Mining Corp. v. Secretary of Labor 

("MSHA"), 744 F.2d 1411 (10th Cir. 1984). 

In this case, I find MSHA's interpretation of the regulation 

to be reasonable and consistent with the objectives of the Mine 

Act and is to be preferred. Accordingly, I find that respondent 

violated 30 C.F.R. § 75.512-2 because the cited items of electric 

equipment had not been examined on a weekly basis, as charged in 

the citation. 

Therefore, based on the criteria contained in section llO(i) 

of the Act 1 I conclude that an appropriate penalty for the 

violation is $20, as proposed. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Citation Nos. 3340442 and 3741045 ARE AFFIRMED. 

2. Citation No. 3340443 IS VACATED. 

3. Respondent, shall within 30 days of the date of this 

decision pay the sum of $132 as a civil penalty for the 

violations found herein. 

333 
4. Upon payment of the civil penalty, these proceedings ARE 

DISMISSED. 

Law Judge 

Distribution: 

Javier I. Romanach, Esq., Office of the Solicitor, u. s. 

Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, 

VA 22203 (Certified Mail) 

Billy M. Tennant, Esq., General Attorney, Employee Relations, 

u. s. Steel Mining Company, Incorporated, 600 Grant Street, 

Room 1580, Pittsburgh, PA 15219-4776 (Certified Mail) 

dcp 

334 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 14 1992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

Docket No. LAKE 91-683 

A.C. No. 11-00612-03556 

Spartan Mine 

ZEIGLER COAL COMPANY, 

Respondent 

SUMMA-RY DECISION 

Appearances: Rafael Alvarez, Esq., Office of the Solicitor, U.S. 

Department of Labor, Chicago, Ilinois for 

Petitioner; 

Gregory s. Keltner, Esq.p Old Ben Coal Company, 

Fairview Heights, Ilinois for Respondent. 

Before: Judge Weisberger 

The Secretary's Motion for Summary Decision regarding 

Citation No. 3847637 is GRANTED. The other citations included in 

this Docket number were disposed of in an Order issued 

January 15, 1992. 

It ORDERED that Citation No. 3847637 be affirmed as a 

violation of 30 C.F.R. § 75.316 consistent with the Decision of 

Judge Koutras in Docket No. LAKE 91-635 issued January 24, 1992. 

Av&isker 

Administrative Law Judge 

Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, U.So Department of 

Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Gregory S. Keltner, Esq., Old Ben Coal Company, 50 Jerome Lane, 

Fairview Heights, IL 62208 (Certified Mail) 

nb 

335 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 14 1992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ZEIGLER COAL COMPANY, 

Respondent 

Docket No. LAKE 91-684 

A.C. No. 11-02408-03641 

Mine No. 11 

SUMMARY DECISION 

Appearances: Rafael Alvarez, Esq., Office of the Solicitor, U.S. 

Department of Labor, Chicago, Ilinois for 

Petitioner; 

Gregory s. Keltner, Esq., Old Ben Coal Company, 

Fairview Heights, Ilinois for Respondent. 

Before: Judge Weisberger 

The Secretary's Motion for Summary Decision regarding 

Citation No. 3847634 GRANTED. The other citations included in 

this Docket number were disposed of in an Order issued 

January 15, 1992. 

It is ORDERED that Citation No. 3847634 be affirmed as a 

violation of 30 C.F.R. § 75.316 consistent with the Decision of 

Judge Koutras in Docket No. LAKE 91-635 issued January 24, 1992. 

~is~ Administrative Law Judge 

Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Gregory s. Keltner, Esq., Old Ben Coal Company, 50 Jerome Lane, 

Fairview Heights, IL 62208 (Certified Mail) 

nb 

336 
fEDERJU, MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 14 1992 

UNITED MINE WORKERS OF 

AMERIC ... '\. ON BEHA.LF OF 

DAN NELSONe 

DISCRIMINATION PROCEEDING 

Complainant 

SECRETARY OF LABORe 

lYiINE SAFETY Al\fD HEALTH 

ADMINISTRA'rION (MSHA), 

and ROBERT KIYKENDALL, 

Respondents 

UNITED MINE WORKERS OF 

Al~ERICA ON BEHALF OF 

DAN NELSON, RONALD SONEFF, 

TOMMY BOYD, STAN ODOM AND 

CARROLL JOHNSON 1 

Complainants 

)J[IJ~TE SAF'ET:t AJ.,TD 

2\.D}XfIJ:TIS1'PArrrorJ \ 

} t 

and. JOHN WEEKLY Ji.ND, 

~JILLARD (GENE) QUERRY I 

Before We 

Docket No. SE 88-92-D 

Jim Walter Resources 

No. 7 Mine 

DISCRIMINATION PROCEEDING 

Docket No. SE 88-93-D 

Jim Walter Resources 

No. 7 Mine 

commenced pursuant to Section 105(c) of the 

and Health Act of 1977 ( 11 the Act"), 

Comp1 seek to hold MSHA and three of its employees liable 

ioia of Section 105{c) of the Act. On 

Novembe:<:' 20, 1991 1 the Secretary filed a Motion to Dismiss 

arguing that, essence, the instant proceeding should be 

dismisseC'; on t.he basis of the decision of the Court of Appeals, 

D.C. t, v. Pittston Coal Group, al. (Case No. 

90~1335, unpubl decision, November 5 1 1991). On December: 

13. 1S91, filed a this· Motion. on 

t.o 

337 
On January 23, 1992, the Secretary filed a Motion to Dismiss 

the proceeding against both MSHA and the individual employees of 

MSHA based on the decision of the Court of Appeals in Wagner, 

supra, and the commission decision in Wagner, 12 FMSHRC 1178, 

(June 1990)0 UMWA filed its response on July 7, 1992. 

I. Proceedings against MSHA 

The Commission in Wagner, 12 FMSHRC at 1185 supra held that 

n ••• MSHA is not a 'person• subject to the provisions of Section 

105(c)", and dismissed the complaint that had been brought 

against MSHA. It is true, as argued by complainants, that this 

holding of the Commission, 12 FMSHRC supra was not affirmed by 

the Court of Appeals in Wagner supra, as that issue was not 

before the Court. However, it is just as clear, for the same 

reasons, that the Court of Appeals did not reverse the Commission 

with regard to its decision on this issue. Accordingly, I am 

bound to follow the decision of the Commission as it is 

applicable law. Hence, based .. on th.e decision of the Commission, 

12 FMSHRC supra, I conclude that MSHA is not a "person" subject 

to Section 105(c) of the Act, and that the portion of the 

Complaints herein seeking relief against MSHA for alleged 

violations of Section 105(c) of the Act should be dismissed. 

II. Proceedings against individual employees of MSHA 

The Commission, 12 FMSHRC supra at 1185 held that 11 ••• MSHA 

employees are not 'persons' subject to Section 105(c} and thus •.• 

can not be sued individually under Section 105(c)". Complainants 

argue that the Court of Appeals in , supra reversed this 

holding of the Commission, as it held that an individual MSHA 

employee can be held liable under Section 105(c) of the Act. I 

do not agree with th interpretation of the Wagner, decision. 

The Court in supra, slip op. at 4 1 concluded that 

"oo.MSHA employees acting within the scope of their authority are 

agents of the sovereign, and therefore can not be liable under 

Section 105(c) 11 The Court then examined whether the employees 

therein acted so far beyond the scope of their authority as to 

become 1upersons 1u who may be liable under Section 105 (c)" The 

Court this connection held as follows: "In the absence of a 

statutory prohibition against such disclosure, there is no sound 

bas for the court to conclude that Inspector Sloce exceeded the 

bounds of his statutory authority by communicating Wagner's 

identity to Wayne Fields and Clinchfield Coa1. 1u (Wagner, supra, 

slip op. at 5) 

In light of this conclusion, it may be seen, as argued by 

the Secretary, that the Court on Wagner, supra, did not reach the 

question as to whether individuals who act beyond the scope of 

their authority are liable under Section 105(c). Further., the 

Court in Wagner, supra, explicitly affirmed the decision of the 

Commission which held that MSHA employees can not be sued 

338 
individually under Section 105(c}. Hence, as correctly argued by 

the Secretary, the applicable law as set forth in the 

Commission 1 s decision, 12 FMSHRC, supra and not reversed by the 

Court of Appeals, requires a finding that the complaints herein 

against employees of MSHA alleging liability under Section 105(c) 

be dismissed. 

It is ORDERED these cases be DISMISSED . 

Distribution: 

. / I 

/· I 

(}!\_._,_., 

/ -, 

Avram Weisberger 

Administrative Law Judge 

Edward H. Fitch, Esq., Office, . ..of the Solicitor, u. S. Department 

of labor, 4015 Wilson ·Boulevard, 4th Floor, Arlington, VA 22203 

(Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 - 15th 

Street, N.W., Washington, D.C. 20005 (Certified Mail) 

nb 

339 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 3. 8 t992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

ROBERT SHICK, employed by 

MUNCIE SAND & GRAVEL, INC., : 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 91-64-M 

A. C. No. 12-01550-05509A 

Shick Sand & Gravel Mine 

DECISION 

Appearances: J. Philip Smith, Esq., Arlington, 

VA, for Petitioner; 

Mr. Robert Shick, Muncie, 

Indiana, Respondent. 

Before: Judge Fauver 

This is a petition for civil penalty under § ll0(c) of the 

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

seq•., charging Robert Shick, as an agent of a corporate mine 

operator , with knowingly authorizing, ordering or carrying out a 

violation by the mine operator. 

I 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, reliable, 

i Section ll0(c) of the Act provides: 

Whenever a corPorate operator violates a mandatory health 

or safety standard or knowingly violates or fails or 

refuses to comply with any order issued under this Act of 

any order incorporated in a final decision issued under 

this Act, except an order incorporated in a decision 

issued under subsection (a) or section i05(c), any 

director, officer, or agent of such corporation who 

knowingly authorized, ordered, or carried out such 

violation, failure, or refusal shall be subject to the 

same civil penalties, fines, and imprisonment that may be 

imposed upon a person under subsections (a) and (d) o 

340 
and probative evidence establishes the following Findings of Fact 

and further findings in the Discussion below: 

FINDINGS OF FACT 

1. At all material times, Muncie Sand and Gravel, Inc., a 

corporation, operated an open pit mine, known as Shick Sand and 

Gravel Mine, in Delaware County, Indiana, where it produced sand 

and gravel for use and sales in or substantially affecting 

interstate commerce. 

2. At all material times, Respondent, Robert Shick was 

Superintendent of the mine. 

3. On March 28, 1990, a federal mine inspector (of MSHA, 

United states Department of Labor) found an imminent danger at the 

mine in that a Caterpillar 966 front-end loader did not have 

operable service brakes, and was used to load customers' trucks and 

to travel on inclined haulage roads into and out of the pit. The 

inspector issued § 107(a) Order No. 3441750, charging a violation 

of 30 C.F.R. § 56.1410l(a) (1), which provides: 

Self-propelled mobile equipment shall be equipped with a 

service brake system capable of stopping and holding the 

equipment with its typical load on the maximum grade it 

travels. This standard does not apply to equipment which 

is not originally equipped with brakes unless the manner 

in which the equipment is being operated requires the use 

of brakes for safe operation. This standard does not 

apply to rail equipment. 

4. Before this inspection, the equipment operator told 

Respondent, the mine Superintendent, that the brakes were 

defective. However, Respondent ignored the request for repairs, 

and told the operator to continue operating the equipment, knowing 

that the only way he could try to stop the vehicle was by dropping 

its loading bucket. The gist of his response to the operator was 

that management would get around to the repairs later, but there 

was no hurry because the MSHA inspector would probably not visit 

the mine for two or three months. 

5. In a safety test, the inspector found that the vehicle 

could not be stopped by its brakes. Dropping the bucket to try to 

stop a front-end loader is not a safe practice. 

6. The brakes on the front-end loader were inoperable. Its 

use in such condition, to load customers' trucks and to travel on 

inclined haulage roads, created an imminent danger to mine 

personnel and customers. 

341 
DISCUSSION WITH FURTHER FINDINGS 

The commission has defined the term "knowingly," as used in 

§ llO(c) of the Act, as follows: 

"Knowingly, 11 as used in the Act, does not have any 

meaning of bad faith or evil purpose or criminal intent. 

Its meaning is rather that used in contract law, where it 

means knowing or having reason to know. A person has 

reason to know when he has such information as would lead 

a person exercising reasonable care to acquire knowledge 

of the fact in question or to infer its existence. . • . We 

believe this interpretation is consistent with both the 

statutory language and the remedial intent of the Coal 

Act. If a person is a position to protect employee 

safety and health fails to act on the basis of 

information that gives him knowledge or reason to know of 

the existence of a viol-ati ve ... condition, he has acted 

knowingly and in· a manner contrary to the remedial nature 

of the statute. [Kenny Richardson v. Secretary of Labor, 

3 FMSHRC 8, 16 ( 1981) , 689 F. 2d 632 (6th Cir. 1982) , 

cert. denied 1 461 U.S. 928 (1983) .] 

I find that Respondent knowingly authorized and ordered a 

violation of 30 C.F.R. § 56.1410l(a) (1), within the meaning of 

§ 110 (c) of the Act. He knew that the vehicle had defective 

brakes, when the driver told him before the inspection, and he 

knowingly authorized and ordered continued use of the vehicle with 

defective brakes. 

The danger to the driver, other vehicle drivers, and persons 

on foot near the front-end loader constituted an 11 imminent dangeru 

within the meaning of the Act. Gravity was therefore more than a 

'

1 significant and substantial 11 violation. The violation was due to 

aggravated conduct beyond ordinary negligence because it was 11 knowingly 11 committed. 

Considering the civil penalty assessed against the corporation 

( $1, 000) for its violation concerning this incident, and the 

criteria for a civil penalty in § llO(i) of the Act, I find that a 

civil penalty of $400 appropriate for the violation found 

herein. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction in this proceeding. 

2. Respondent, Robert Shick, knowingly authorized and 

ordered the violation of 30 C.F.R. § 56.14101(a) (1) alleged in 

Order No. 3441750. 

342 
ORDER 

1. Order No. 3441750 is AFFIRMED. 

2. Respondent, Robert Shick, shall pay to the Secretary of 

Labor a civil penalty of $400 within 30 days of the date of this 

decision. 

tJ~~~~ William Fauver 

Administrative Law Judge 

Distribution: 

J. Philip Smith, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Mr. Robert Shick, Muncie Sand & Gravel, Inc., 4210 E. McGalliard, 

Muncie, Indiana 47303 (Certified Mail) 

/fas 

343 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 191992 

MOUNTAINEER COAL COMPANY, 

INC. I 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MOUNTAINEER COAL COMPANY, 

INC. 1 

Respondent 

CONTEST PROCEEDINGS 

Docket No. VA 91-413-R 

Through VA 91-414-R 

citation No. 9861170; 4/4/91 

Through No. 9861171; 4/4/91 

No. 1 Mine 44-05090 

CIVIL PENALTY PROCEEDING 

Docket No. VA 92-30 

A. C. No. 44-05090-035890 

Mountaineer No. 4 Mine 

DECISION APPROVING SETTLEMENT 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On December 4, 1991, the Secretary filed a motion to approve 

a settlement between the parties in the above case. The case 

includes 2 alleged violations of 30 C.F.R. 70.209(b), each of which 

was originally assessed at $1100. The Secretary continues to 

assert that the violations resulted from a deliberate act, which is 

denied by the mine operator. The degree of negligence is disputed, 

and the parties agree to a reduction in the total penalties from 

$2200 to $1760. 

I have considered the motion in the light of the criteria in 

section llO(i) of the Act and conclude that it should be approved. 

Accordingly, the settlement motion is APPROVED. The operator 

is ORDERED to pay within 30 days of the date of this order the sum 

of $1760 for the violations charged in this proceeding. 

344 
IT IS FURTHER ORDERED 

DISMISSED. 

the cont.est. 

Distribution: 

/~_i,,;; /4/!l n:J~J ;;,,;(! ~ ~~mes A. Broderick 

Administrative Law ,Judge 

Douglas :tL white, Esq. u Counsel, Trial Litigation, Page H. Jackson, 

Esq.u the Solicitor, U S. Department of Lab01:: .. " 4015 

Wilson u Arlington, VA 22203 (Certified ) 

Mark R. ff Esq.v White, liott and Bundy 9 601 State Street 9 

Suite 600 7 Dominion Bank Buildingv P. o. Box 8400~ Bristol 1 Vll~ 

24203 (Certified Mail} 

Mr. Carl § Secretary-Treasurer, Mountaineer Company, 

Inc.Q P. O. Box 9u Castlewood, VA 24224 (Certified Mail) 

/t:as 

345 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

f EB 1 91992 

SECRETARY OF I.ABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

THE PITTSBURG & MIDWAY COAL 

MINING COMPANY, 

Respondent 

Docket No. CENT 91-54 

A.C. No. 29-00096-3548 

McKinley Mine 

'DECISION 

Appearances: Ernest Burford, Esq., Office of the Solicitor, U.S. 

Department of Labor, Dallas, Texas, 

for Peti tioneq 

John W. Paul, Esq., Englewood, Colorado, 

for Res pond en t. 

Before: Judge Cetti 

This case is before me upon a petition for assessment of 

civil penalties under Section 105Cd) of the Federal Mine Safety 

and Health Act of 1977v 30 u.s.c. § 801 et~ (the HAct 11 ). The 

Secretary of Laborv on beha of the Mine Safety and Health Administration (MSHA) 1 charges the Pittsburg & Midway Coal Mining 

Company ( P&M) the operator of the McKinley Mine, with two 

104(a) v non S&S" violations of mandatory regulatory standards 

found in 30 C.FoR. § 45.48 and§ 77.904. 

The operator led a timely answer contesting the alleged 

violations-and the appropriateness of the proposed penalties. 

Pursuant to notice, an evidentiary hearing on the merits was 

held before mef along with other cases involving the same parties 

and attorneys. 

Stipulations 

At the hearing, the parties agreed on the following 

stipulations: 

1. P&M is engaged in the mining and selling of coal in the 

United States and its mining operations affect interstate 

commerce. 

346 
2. P&M is the owner and operator of the McKinley Mine, MSHA 

ID No. 29-00096. 

3. P&M is subject to the jurisdiction of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et~ 

4. The Administrative Law Judge has jurisdiction in this 

mattere 

5. The subject citations were properly served by a duly 

authorized representative of the Secretary upon an agent of Respondent on the date and place stated thereinv and may be admitted into evidence for the purpose of establishing their issuance 

and not for the truthfulness or relevancy of any statements 

asserted therein. 

6. The exhibits to be offered by Respondent and the Secretary are stipulated to be authentic, but no stipulation is made 

as to their relevance or the truth of the matters asserted 

therein. 

7. The proposed penalties will not affect Respondent's 

ability to remain in business. 

8. The operator de:nonstrated good faith in timely abating 

the alleged violations. 

9. P&M is a large operator of a coal mine for penalty 

assessment purposese It's McKinley Mine is a large surface mine 

producing four to five tons of coal each yearo 

lOo The certified copy of the MSHA assess violations history filed in Docket Noo CENT 9 06 reflects the history of this 

mineo 

Citation Noo 3584164 

This ci ta ti on charges Respondent with a l 04 (a) violation of 

30 CoFoRo § 45e4(b}" The citation reads as followsg 

The production-operator could not produce the 

information re:;i:uired by paragraph (a) of this 

section for each independent contractor of this 

mine, namely General Electric ISEf this contractor was providing electrical service on contract 

work at the No. 4 dragline. 

347 
The cited safety st.anda rd s as f lows~ 

§ 45o4 Independent contractor register~ 

(b) Each production-operator shall mainta 

in writing at the mine the information requir~ 

by paragraph (a} of this section for each 

independent contractor at the mine. The pro-· 

duction-operator shall make this information 

available to any authorized representative of 

the Secretary upon requesL 

The info:rma ti on which the opera tor is required to maintain 

in writing and make available to the inspector is set forth in 

Sect 45o4(a) which in part reads as follows~ 

(1} The independent contractor's trade name 1 

business address arid business telephone number~ 

(2) A description of the nature of the work 

to be performed by the independent contractor 

and where at the mine the work is to be per-

£ 0 

h' 

3) 'rhe independent contractors;.,; MSHA ident.i.,, 

ficati.on numberf if any; and 

(4) The independent contractorvs address of 

record for service of citations, or other documents involving the independent contractor. 

licting t.estimony was presented at the hearing as to 

"'V c, 

No,. 

tor maintain and available 

en the nformaticm 

e lunch eak/! e 'cies sta on 

erred and reached a proposed set ement 

an agreed penalty of $20v 

sis ence presen 

I oved 

~ hereby approval 

ta tiono 

e ava 

is tation charges Respondent wi 

viola on of 30 CoFoRo § 770904. 

a 104 ) non S&S 

348 

tha 

ti on 
The citation reads as follows: 

The circuit breaker supplying electrical power 

to the South East warehouse door was not labeled to show in fact that this circuit supplied 

electrical power to the South East door. This 

circuit breaker was energized when this condition was observed. 'l.Wo of three warehouse personnel could not readily identify the control 

circuit when question[ed], they had to look at 

the circuit and trace it to the door motor. 

(Emphasis added).' 

The cited safety standard reads as follows: 

§ 77e904 Identification of circuit breakers. 

Circuit breakers shall be labeled to show 

which circuits they control unless identification can·be made readily by location. 

(Emphasis added). 

The cited device in question was a disconnect switch in the 

electrical circuit between a molded-box circuit breaker and a 

motor for an overhead warehouse door. The undisputed evidence 

established that this device, cited and referred to in the citation as a "circuit breaker," was not a circuit breaker. The evidence clearly established that it was a fused "disconnect 

switch." 

Petitioner argues that although the specific language of 30 

CoFoRo § 770904 does not mention the term "disconnecting device" 

the statute should be interpreted to include such devices. Petiti tioner argues that both devices have the same fundamental functionc 

The regulations do not define the term "circuit breaker." 

The term ncircui t breakerw1 is defined in A Dictionary of Mining, 

Minerale and related Terms 210e U.SQ Department of the Interior 

{1968>u as follows~ 

Circuit breakere a. An overload protective 

device ins.talled in the positive circuit to interrupt the flow of electric current when it becomes excessive or merely exceeds predetermined 

value. b. A switch that automatically interrupts an electric circuit under an infrequent 

abnormal condition (as overload). Webster 3d. 

349 
A dictionary of Mining, Mineral, and Related Terms 1111, 

U.S. Department of the Interior (1968), defines a disconnect 

"switch," insofar as relevent here, as follows: 

A mechanical device for opening and closing an 

electric circuit; 

It is undisputed that the circuit at issue was a low or 

medium voltage circuit (Tr. 32). Section 77.904 refers only to 11 circuit breakers" on low or medium voltage circuits, and does 

not mention disconnecting devices. 

The corresponding provision dealing with high-voltage circuits (Subpart I of Part 77~ Title 30) clearly shows that the two 

phrases are to be used independently: 

§ 77.809 - Identification of circuit breakers 

and disq9nnecting switches. 

Circuit breakers and disconnecting switches 

shall be labeled to show which units they 

control, unless identification can be made 

readily by location. 

Thus, the Secretary when promulgating a safety standard for 

high voltage currents specifically included references to both 

"circuit breakers" and "disconnecting switches" but when addressing low and medium voltage circuits specifies only "circuit 

breakers" Q A term carefully anployed in one place in the regulation and excluded in another should not be implied where excluded. 

='"'"-'-'---::-::::7.:-::::-=-'--;.......;.....;..il 600 Fo2d 546 (5th Ciro 1979)(1 Diamond Roofing ~;;;_;;;:_=e Koch Refining Coo Vo United States Deptq of 

o 593 (Do Minno 1980)il ffgdu 658 F2d 799 

Appo 1981) o 

A question that naturally comes to mind is whether there is 

a. rational reason for the Secretary to specifically require labeli of sconnecting switches in high voltage lines but not in 

medium or low voltage circuito ~he Respondentus expert explained 

that one reason for this distinction is that a servicing electrician can use a voltmeter to check low and medium voltage circuitsv but that a voltmeter cannot be used on high voltage lineso 

CTro 72)0 Thusv there is a reason for requiring specific labeling of both circuit breakers and disconnect switches in servicing 

high voltage circuitso 

Respondent in denying any violation of 30 C.F.R. § 77.904 

summarizes its position as follows: 

350 
A. As a factual matter, the electrical circuit controlled 

by this disconnect switch was readily identifiable by location 

and it is sufficient that a worker be able to identify the circuit by observation. 

B. For purposes of both the regulatory scheme and common 

usage among electricians, this Switching Mechanism is a "disconnecting device. 11 A disconnecting de,tice serves a different purpose than a circuit breaker, and is distinguishable in practical 

application. · 

C. The plain language of Section 77.904 does not require 

identification of disconnecting devices on low and medium voltage 

circuits. 

D. The plain words of the Secretary's regulation (§ 77.904) 

are clear and unambiguous1 i.e., the standard applies solely to 11 circuit breakers. 11 Any extension of the standard so as to apply 

the labeling requ ement to d.isconriecting devices constitutes 

substantive rule-making without following rule-making procedures. 

E. Even if the regulation is susceptible to various meanings@ and the Secretary 1 s characterization is merely interpretative, the Respondent had no notice of the Secretary's position. 

I find merit in Res pond en t' s con ten ti on that as a f actua 1 

matter identification of the circuit that the disconnect switch 

controlled could readily be made by location and thus comes 

within the exception to the labeling requirement specifically 

stated in the ci safety standardo 

'Respondent t-hearing brief states its position in 

part as 

Io As a factual matter, the electrical circuit 

controlled by the Switching Mechanism was 

readily identifiable by locationo It is sufficient that a worker be able to identify the 

circuit by observationo 

er or not the Switching Mechanism 

t held to be a DD circuit breaker, 11 

scene depicte~ in Respondent 0 s Exhibit 

1-B a rge photograph of the disconnect 

switch and the conduit from the switch to 

to the motor that raises and lowers the 

warehouse door) clearly shows that the 

351 
circuit controlled by the Switching Mechanism (designated by an arrow in the photograph) can be readily identifiable by observation. Even without reaching the legal 

issue of whether the Switching Mechanism 

is a "circuit breaker, 11 this fact should be 

dispositive of the case. 

The Inspector's narrative report contained 

in the citation suggests that all workers 

must be able to readily identify the controlled circuit upon questioning, without observing the apparatus. In effect, the inspector imposes the safety standard as if it were 

a test question posed in a closed-book exam. 

He concedes that the workers could, in fact, 

trace the circuit to the door motor by looking at the circui"t (Citation: Tr. 36). Thus, 

the face of the citation itself negates any 

violation of the standard. 

Upon cross-examination, the Inspector further conceded that he could see what circuit 

was controlled by the Switching Mechanism 

(Tr. 35). He acknowledged that he had tased 

the existence of the violation on the negative responses offered by two of three workers in the area {Tr. 17). The Secretary did 

not call those individuals to testify as to 

the extent of their knowledge or inability 

to identify the circuit (with or without visual observation) o 

The Secretary has not provided any legal 

basis or rationale to support its contention 

that a worker should be able to "identify" 

the circuit without actually looking at ito 

Such a novel interpretation constitutes substantive rule-making without adhering to procedural guidelines, as more fully discussed 

belowo The photograph of the scene, and the 

inspector~s own admissions, establish that 

the circuit controlled by the Switching Mechanism could be readily identified by location. Therefore, no violation has been 

shown by the evidence. 

352 
II F'or purposes of both the regulatory scheme 

and common usage among electricians, this 

Switching Mechanism is a "disconnecting device. 0 A disconnecting device serves a different purpose than a circuit breaker, and 

is distinguishable in practical application. 

In addressing the remaining legal issues in 

this caseu an understanding of the function 

and purpose of the Switching Mechanism is necessary. Much attention was devoted at the 

hearing to the definition of a "circuit break 

er" and of a 11 disconnecting devi ce 11 ; however, 

the key pain ts are quite .straight-forward. 

The terms 11 cui t eaker 00 and "disconnecting device~ have very different meanings to an 

elect ciano The__ordinary and common meaning 

of words should be applied in the application 

of regulationsv unless such words are defined 

otherwise. Usery Vo Kennecott Copper Cofp., 

5TI F.2d 1113 (10th Cir. 1977) Q Whelan v. "·· 

United States, 529 F2d 1000 (Ct.Cl. 1976). ··rhe Respondent us electrical expert established 

that a "circuit breakern is a device that automatically provides overcurrent, short circuit, 

and ground fault protection to the circuit 

(Tro 75 11 76). A 11 disconnecting device" enables 

the servicing electrician to manually deenerqize e circuit and visually confirm its 

9u 77)" Since the elecn see that the electrical 

ical separatedv he or she ~hen safely proceed with servicing. 

It s v then,, to stinguish between 

e ~urposes a circuit breaker 

riisconnecting devi.ceo The former affords 

unattended protection against elects" The latter enables visually 

safe access to the service point of 

·::ne rcui t beyond disconnecting deviceG 

'l'he Respondent agrees that a single apparatus 

could ser11e both purposes if so equipped; however" the circuit breaker in use on the circuit 

ques on was a molded-box circuit breaker 

which did not enable internal inspection; thereforeu a separate disconnecting device was required (Tr~ 67 0 81)~ 

353 
Without a focus on the differing purposes 

of the two devices, the analysis becomes unnecessarily confused. A disconnecting device 

can be "fused" or "unfused" by the simple 

addition of a fuse in the device. Such a fuse 

adds an additional measure of automatic protection, along with the separate circuit breaker which, in this case, was located on a different floor (Tr. 67, 69, 70) o The Secretary 

argues that by the addition of a fuse, this 

Switching Mechanism duplicates some of the same 

functions as a circuit breaker and therefore 

should be labeled in the same manner as a circuit breaker. .This position would have merit 

if the addition of the fuse introduced some 

safety hazard or altered the essential purpose 

of the disconnecting device. 

The Secretary 9 s attempt to equate a circuit 

breaker and a disconnecting device is faulty 

in several respects. First, the inspector 

misunderstands the purpose of a disconnecting 

device; he believes that the device is used to 

provide emergency shut-off (Tr. 15). However, the Respondent's electrical expert testified that the purpose of the device is to 

enable visual verification of deenergizing 

prior to maintenance. The record establishes 

that the actual on/off switch (which controlled 

movement of the door) was near-by (Tr. 46P 72). 

Even the Secretary 0 s own regulations regarding disconnecting devices emphasize the aavisual 00 

evidence of disconnection rather than the need 

for immediate or anergency disconnection: 

§ 770903 - Disconnecting Devices. 

Disconnecting devices shall be install 

ed in circuits supplying power to portable or mobile equipment and shall provide visual evidence that the power is 

disconnected. 

The inspector confuses purpose with function. 

Even with the addition of a fuse, the primary 

purpose of a disconnecting device remains the 

same; to enable visual confirmation of a manual 

354 
disconnection. The addition of a safety feature (i.e .. , a fuse that functions similar to a 

circuit breaker) should not convert an otherwise acceptable apparatus into a safety hazard); this is simply illogical. The Secretary 

is in the anomalous position of arguing that the 

addition of a safety feature reduces the safety of the workers. Florence Mining Co., 11 

FMSHRC 747 (1989). The Secretary is advocating a legal position that would encourage compliance by removal of a safety feature. 

The Secretary offered no expert testimony to 

refute the common usage of the two terms among 

electricians, but instead relies upon the 

legalistic interpretative argument that the 

phrase "disconnecting device" is interchangeable with "circuit,J:>:.reaker" due to the addition 

of a fuseo - Her case is premised on the description of "circuit breaker" in the 1968 

National Electrical Code in Article ( 11 NEC11 ) 

Section 100 (Tr. 78), which is defined therein to include devices which open and close 

circuits by both automatic and nonautomatic 

means. By applying that definition directly 

to Section 77.904 the Secretary reasons that 

the phrase "circuit breaker" is all-encompassing. 

The substance of the then-current NEC is incorporated into the Secretary 1 s regulations depending on the date that the equipment is installed if after 1971. 30 C.F.R. § 77a516 

(1990). Since the NEC is incorporated by referencev the provisions of the full electrical 

codesv as revised over the years, are available 

for the Commissionus review in deciding this 

case. 

1 editions of the NEC since 1975 have included the foregoing definition of "circuit 

breaker 17 ui but have elaborated on that definition for circuits carrying over 600 volts (a 

low voltage under 30 C.F.R~ § 77~2Cs) (1990) 

means up to 660 volts): 

355 
Swi i.ng Devi cesg 

Circuit Breaken A switching device 

capable of makingy carrying 1 and breaking currents under normal circuit condi tionsu and also rnaki , carrying for 

a specified time, and br ng currents 

under specified normal circuit conditions, such as those of short circuit& 

Disconnecting {or Isola ) Switch 

CDisconnectoru Is tor)g A mechanical switching device used for isola t~ 

ing a rcuit or equipment from a 

source powe:t: ... 

Disconnecting Meansg A deviceu group 

of devices, or other mean whereby the 

conductors of a cuit can disconnected from thei:t:· sourc.s: of supply., 

Thus v all editions of the NEC for the past 

fifteen yea.rs have made the definitional distinction between a circuit breaker and a disconnecting switch" 

NEC f.!. 

f :rceely 

t:he C~omm.issio:o, 

·cJ:1·e ~11:.!!c~ 

that 

manual 

features, 

~'.lautH;in 

NEC te:r.·~ 

:regula."= 

nary 

automa 

Secre-

·tional 

t 

t visua 

e Tr o 81) o 

purpose was not contempla by the 

therefore :~JEC ct ini t.ion cannot be 

ied t.o the Secretary's regula on,, 

:Even though substance of t.hen-current 

NEC is incorporated into Secretary 1 s regulations it does not t.11a t terminology 

and def tions are directly interchangeableo 

356 
The Secretary w s regula ons early apply the 

phrases "circuit break and 11 disconnecting 

device" separately. She cannot simply construe 

the existing regulations to mean what she may 

have intended but did not ada:aua tely express. 

Diamond Roofing Coo v. OSHRC, 528 F.2d 645 

(5th Cir. 1976). 

* * * * * 

IV. The plain words of the_Secretary 8 s regulattion <§ 77.904) are clear and unambi uous; 

i.e., the sta lel- to circuit 

breakers. Any extension of the standard so as 

to apply the labelling requirement to disconnecting devices constitutes substantive rulemaking without following rule-making procedures. 

The Se9retary 'Offers an alternative argument 

that whether or not the disconnecting device 

contains a fuse, the same standard provided 

for high voltage circuits (§ 770809} should be 

applied to low and medium voltage circuits. 

The inspector off er his opinion that any device which enabled disconnection should be labeled (Tr. 3 4) • 

The Secretary relies on the following citation from the 1968 NEC, § 110.22 (Tro 79): 

F.ach disconnection means required 

by this code motors and appliances 

and ea.ch service meter or branch cir~ 

cuit at the nt ere it ori inates 

shall be legi y marked to indicate a 

purpose is evidento (Emphasis added)$ 

If this standa di cnou.t the emphasized language, it indeed appear to require identifica l disconnecting 

switches (unlessu cou.rse{l readily identifiable by location)~ just as the Inspector has 

applied§ 77.904. But as the Respondent 6 S expert pointed out in uncontroverted testimonyu 

the reference to 11 at the point where it originates" means at the circuit breaker; the 

Switching Mechanism in question here was not 

357 
at the point where the circuit originated 

(Tro 69, ?Ou 80). This is no different than 

the Secretary's own regulation § 770904, and 

adds nothing to this analysis. 

A rule as envisioned by the Inspector might 

well be appropriately adopted by the Secretary 

under the rule of law set out in Chevron UoS.A. 

Inco v. Natural Resources Defense Council, 

Inc. u 467 U .s. 837 ( 1984). Yet, a plain reading of the two provisions Cone dealing with 

high voltage and one dealing with medium/low 

tage) leads to the conclusion that the Secretary has not yet done so. If she intends to 

impose a new and substantive obligation upon 

operators, she must follow appropriate rulemaking procedures. Drummond Co., 13 FMSHRC 339 

(1991) 0 

In determining whether the actions of the Secretary must comply with rule-making procedures, 

the courts differentiate between interpretive 

and substantive actionso Here, the Secretary is 

attempting to enforce a new and substantive obligation upon RespondenL Phelps Dodge Corp. v. 

FMSHRCu 681 Fo2d 1189 (9th Cir~ 1982) ~ 

Vo Even if the regulation is susceptible to various meanings? and the Secretary 9 s characteriza-

·tion is merely interpretative, the Respondent 

0ad no notice of the Secretaryus position. 

application and construction the 

::cegula tory language is considered to be interpret e rather than substantive in this case, 

Respondent and all operators must be afforded 

fair notice of the Secretary~s winterpretation.• 

Phelps Dodge Corpo Vo FMSHRCv suprao Respondent has been unable to locate any notice of the 

Secretaryvs interpretation of ~disconnecting 

svd '' in her Program Policy Manualv Program 

icy Lettersv or previous published enforcement actions. 

The enforcement of an interpretation rule 

which imposes a new and affirmative duty upon 

an operator without at least giving notice to 

the industry violates the basic notions of due 

process,, 

358 
Conclusions 

As previously statedv Respondent's Exhibit 1-Bv a large 

photograph of the work site in question, clearly shows the 

disconnect switch in question and the circuit it controls. It 

shows the conduit coming out of the switch box in question and 

going up the wall to the motor which raises and lowers the 

warehouse door. On the basis of Respondent's Exhibit 1-B and the 

testimony presented at the hearing, I find that irrespective of 

whether or not the disconnect switch is a '

1

circui t breaker" 

within the meaning of 30 CoFoRo § 770904 that identification 

the circuit that the disconnect switch controlled can readily be 

made by mere observation of the location of the disconnect switch 

and the conduit leading out of it going up the wall to the motor. 

Assumingu for the purpose of argumentF that the switch in 

question is a "circuit breaker" within the meaning of 30 C.F.Ro 

§ 77.904, I find it falls within the standard's specific exception that labeling is not required where 11 identification can be 

made readily by location&n Citation No. 3584192 is vacated. 

ORDER 

On the basis of the foregoing findings and conclusionsn 

It is ordered as follows~ 

lo Citation No. 3584164v citing a violation of 30 CoF.R. 

§ 45o4:(b) ,ii::; .aFFIRMED and a penalty of $20 ls ASSESSEDo 

:: ,. t.a on No • 3 5 8 4 l 9 2 t c :t 

C.FoRo § 770904 is VACAT:ED and 

is set aside. 

ORDE P.ED 'ro JFAY 

alleged olation 

proposed penalty 

Secretary of 

30 

3o Respond 

.uaoor °' civil the surn of $2 0 'Chi IC {3 0) days 

of the date 

matter is 

ecision andr upon 

359 

payment~ this 
Distribution~ 

Ernest Ao Burfordv Esqo; Office of the Solicitor, U.S. Department 

Labor, 525 Griffin Street~ Suite 501, Dallas, TX 75202 

(Certified Mail) 

John W. Paulf Esqo, PITTSBURG & MIDWAY COAL MINING COMPANY, 6400 

South Fiddler 0 s Green Cir e 0 Englewood, CO 80111-4991 

(Certified Mail) 

Mr o Robert Butera 9 In te:rn2, tional Heal th and Safety Representative 

fo:r UMWA District 13 r ~'2 :r,es. Streetv Trinidad, CO 81082 

(Certified Mail} 

360 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF AOMfNISTl~ATIVE LAW JUDGES 

2 Sl<YLINE, J 0th FLOOf~ 

5203 LEF£SOURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 1 91992 

LARRY E • SWI F'r, 

MARK SNYDER, AND 

RANDY CUNNINGHAM, 

DISCRIMINATION PROCEEDING 

Docket No. PENN 91-1038-D 

Complainants MSHA Case No. PITT CD-90-09 

v . Dilworth Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

William Manion, Esq., Legal Counsel, UMWA 

Region 1, Washington, Pennsylvania, for the 

Complainants; 

Walter J. Scheller III, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Judge Melick 

This case is before me upon the Complaint by Union Safety 

Committeemen Larry E. Swift, Mark Snyder, and Randy Cunningham, 

under section 105(c)(3) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c . 801 et seq., the "Act," alleging violations of 

section 105(c)(l) of the Act by the Consolidation Coal Company 

(Consol) in its implemintation of its Dilworth Mine "Program for 

High Risk Employees. 11 I 

1 Section lOS(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 this Act because 

such miner, representative of miners or applicant· for employment 

has filed or made a complaint under or related to this Act, 

including a complaint notifying the operator or the operator's 

agent, or the representative of the miners at the coal or other 

mine of an alleged danger or safety or health violation in a coal 

or other mine, or because such miner, representative of miners or 

applicant for employment is the subject of medical evaluations 

and potential transfer under a standard published pursuant to 

section 101 or because such miner, representative of miners or 

applicant for employment has instituted or caused to be 

instituted any proceeding under or related to this Act or has 

testified or is about. to testify in any such pt'oceeding, or 

because of the exercise by such miner, representative of miners 

361 
The Dilworth Mine apparently had during the 1980's the worst 

safety record of Consol's mines in its Eastern Division 

(Complainants Exhibit C-12, pp. 13-14). Because of an active and 

determined union safety committee the mine has also been the 

subject of many complaints under section 103(g) of the Act and a 

resulting significant history of Federal citations for the 

operator's failure to report injuries under 30 C.F.R. Part 50 

(Complainant's Exhibits 2, 7 and 9). 

According to Dilworth Mine Superintendent, Lou Barletta, 

because of the high incidence of reported injuries at the 

Dilworth Mine he first implemented a program for purported high 

employees in October 1988. The "Program for High Risk 

Employees" implemented January 1, 1990, and here at issue 

(Appendix A) retains the same provisions of the earlier program 

for increasing discipline including suspension and discharge for 

repeated reported injuries. 

In essence, the program at·· issue provides counselling, 

retraining, and increasing discipline including suspension and 

discharge of employees based upon "Reports of Personal Injuries" 

filed in response to any work related incident resulting in 

injury (Joint Exhibit No. 1-Appendix A). The program also 

directs employees, as do shop and conduct rules (Exhibit 

R-2), to report to management any work related incident which 

results in injury in a "Report of Personal Injury." These 

may therefore include injuries in addition to those 

reportable to the Federa1

2

Mine Safety and Health Administration 

under 30 C.F.R. Part 50. In the discretion management some 

may be excluded from consideration against 

The Complainants maintain that this " for High Risk 11 is facially discriminatory to themselves and to all 

other miners subject to program and that, accordingly, the 

program itself and any action taken under the program is illegal 

section 105(c)(l) Act. 

fn. 2 (continued) 

or icant for employment on behalf of himself or others of any 

statutory right afforded by this Act." 

2 

mine 

results 

all job 

to 

Under 30 C.F.R. § 50.2(e) a reportable occupational 

defined as "any injury to a miner which occurs at a 

which medical treatment is administered, or which 

in death or loss of consciousness, inability to perform 

duties on any day after an injury, temporary assignment 

duties, or transferred to another job." 

362 
In order to establish a prima facie case of discrimination 

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

burden of production and proof in establishing that (1) he 

engaged in protected activity and (2) the adverse action 

complained of was motivated in any part by that protected 

activity. Secretary on behalf of Pasula v. Consolidation Coal 

Co., 2 FMSHRC 2786, 2797-2800 (1980), rev'd on other grounds sub 

nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal 

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

facie case by showing either that no protected activity occurred 

or that the adverse action was not motivated in any part by 

protected activity. If an operator cannot rebut the prima facie 

case in this manner, it nevertheless may defend affirmatively by 

proving that it also was motivated by the miner's unprotected 

activity and would have taken the adverse action in any event for 

the unprotected activity alone. Pasula, supra; Robinette, supra. 

See also,~-~., Eastern Assoc. Coal Corp, v. FMSHRC, 813 F.2d 

639, 642 (4th Cir. 1987); Donovan v. Stafford Construction Co., 

732 F.2d 954, 958-59 (D.C. Cif". 1984); Baich v. FMSHRC, 719 F.2d 

194, 195-96 (6th Cir. 1983) (specifically approving the 

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

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

identical test under National Labor Relations Act). The 

Commission has also recognized that certain programs and policies 

established by a mine operator may be facially discriminatory. 

See Secretary on behalf of Price and Vacha and UMWA v. Jim Walter 

Resources, Inc., 12 FMSHRC 1521 (1990); Local Union 1110, United 

Mine Workers of America and Robert R. Carney v. Consolidation 

Coal Company, 1 FMSHRC 338 (1979). 

It is not disputed that a report of a mine injury may 

constitute a "complaint under or related" to the Act and is the 

nexerc " of a protected right under the Act. It follows 

therefore that any interference with the exercise that right 

by a mine operator constitutes a violation of section 105(c)(l} 

of the Act. Clearly, the "Program for High Risk Employees'1 at 

the Dilworth Mine, by subjecting its employees to suspension and 

discharge based upon the filing of Reports of Personal Injury 

inhibits and interferes with the reporting of mine injuries, and 

by so doing, constitutes an illegal interference with protected 

activ 

Consol argues that the program at issue is not based upon 

the report of personal injury itself but rather upon the 

underlying injury, and that there is no statutorily protected 

right to sustain injuries. While it is true there is no 

protected right to sustain injuries, Consol's argument is 

bottomed on the erroneous premise that the discipline, suspension 

and discharge under the program is based upon the actual injury 

rather than the reporting of the injury. The simple fact is 

however, that if an injury is not reported it is not counted 

363 
against the miner. 3 The program accordingly creates an obvious 

and persuasive disincentive to report injuries. Sustaining an 

injury and the reporting of the injury are, moreover? so 

inextricably interrelated that the unprotected sustaining of an 

injury cannot under this program be separated from the reporting 

of the injury. 

Whi it is well established that neither the Commission nor 

its judges sit as a super grievance board to judge the industrial 

merits, fairness, reasonableness, or wisdom of programs such as 

the Dilworth Program for High Risk Employees they do have 

affirmative duty to determine whether such a. progra1n or some 

component thereof conflicts with rights protected by the Act. 

Under the circumstances of this case it is clear that the 

Complainants have sustained their burden of proving that the 

Program for High Risl.:::. Employees implemented by Consol at its 

Dilworth Mine on January 1, 1990, is facially discriminatory in 

violation of section 105(c)(l) of the Act and does indeed 

conflict with protected rights. Under the circumstances, there 

is no need to consider the Complainants 1 alternate theories of 

illegality. 

ORDER 

The Consolidation Coal Company is hereby ordered to 

immediately cease and desist from implementation of any 

disciplinary action under the Dilworth Mine "Program for High 

Risk Employees" and it is further ordered that all records be 

expunged of any reference to any disciplinary action taken under 

said program. Since no costs, damages or other remedies have 

been sought in this case is no for further proceedings 

and the this decision represents disposition of 

s case before s judge" 

3 The injury would therefore also 

counted against the mine operator under 

Under the circumstances another seriou2 

Program is therefore a likelihood that 

serious hazards would go 

and that such hazards would remain 

364 

,Judge 

go unreported and not be 

the Part 50 regulations. 

:U1JUr and potentially 

a.nd ·co MSHA 
APPENDIX A 

Dilworth Mine Program for High Risk Employees 

1. This Program is effective January 1, 1990; only 

injur occurring on or after January 1, 1990 

will be counted in this Program. 

2. Each employee continues to be obligated to report 

to Management any work related incident which 

results in personal injury to the employee and to 

complete a Report of Personal Injury {RPI) for 

each such injury. 

3. Step I: An employee who experiences four 

injuries in eighteen working months will 

be counseled by Management and will be 

designated as a High Risk Employee. 

A High Risk employee may clear his 

record under this Program by working 

twelve working months (from the date of 

the injury which resulted in his being 

designated a High Risk employee) without 

experiencing an injury. 

4. Step II: A High Risk employee who experiences an 

injury within twelve working months (of 

the date of the injury which resulted in 

his being designated a High Risk 

employee) will (a) be counseled, (b) be 

suspended from work for two days without 

pay, and (c) will attend a special 

awareness session prior to returning to 

work ter his suspension. 

A High Risk employee who has been 

counseled, has been suspended, and has 

attended a special safety awareness 

session may clear his record under this 

Program by working twelve working months 

(from the date of the injury which 

resulted in being counseled, 

suspended, and sent to the special 

safety awareness session) without 

experiencing an injury. 

365 
5. Step III: A High Risk employee who has been 

counseled, suspended and sent to a 

special safety awareness session (under 

Step II) who experiences an injury 

within twelve working months (of the 

date of the injury which resulted in his 

being counseled, suspended, and sent to 

a special safety awareness session -

under Step II) will be suspended with 

intent to discharge. 

6. For purposes of this Program, the term working 

month will mean calendar months, extended by: 

(a} The number of calendar days that 

the employee is eligible for (or 

would be eligible for upon proper 

application) Sickness and Accident 

Benefits; and 

(b) The number of calendar days that 

the employee eligible for 

Workers' Compensation temporary 

total disabi ty benefits; and 

(c) The number Monday thru Friday 

calendar days on which the mine is 

idle, for reasons other than 

Regular Vacation and Holidays, and 

on which the employee does not 

perform work; and 

(d) The number calendar days that 

the employee is laid-off. 

Example: An employee is inj on January 16, 

1990. Eighteen calendar months from January 16, 

1990, is Ju 16, 1991. If employee misses 

work for a period of four calendar days due to 

sickness, between January 16, 1990, and July 16, 

1991, 16, 1991, would not be 

extended, s the employee is not eligible for 

Sickness Accident Benefits l the eighth 

day of di ty due to s s. =f the 

employee misses work for a of thirteen 

calendar days due to , between January 16, 

1990, and Ju 16, 1991, July 16, 1991, date 

would be extended by six days to July 22, 1991, 

since he would not be eligible for Sickness and 

Accident the first seven of absence due 

to sickness, but he would be eligible for these 

benefits the last six of the absence. 

366 
7. Nothing in this Program prohibits Management from 

disciplining (up to and including discharge) any 

employee for any action which, irrespective of the 

existence of this Program, would in Management's 

judgment constitute grounds for discipline (up to 

and including discharge). For example, if an 

employee sustains an injury due to his violation 

of a work or safety rule, the injury would be 

counted in this Program, and the employee would be 

subject to discipline for violation of the work or 

safety rule. 

8. Management reserves the right to exclude an injury 

from this Program in a rare situation when 

Management's investigation of the injury reveals 

absolutely no culpability on the part of the 

injured employee and when excluding the injury 

from the Program appears to Management to be in 

the best interest o.f ci.ttaining a safe working 

environment: for all employees at the mine. (Joint 

Exhibit No. 1). 

Distribution: 

Walter J. Scheller III, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road Pittsburgh PA 15241 

(Certified Mail) ' ' 

William ~anion, Esq., Legal Counsel, UMWA Region 1, 

321 Washington Trust Building, Washington PA 15301 

(Certified Mail) ' 

/fb 

367 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 191992 

BETTY B COAL COMPANY, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BETTY B COAL COMPANY, INC., 

Respondent 

: 

.. . 

CONTEST PROCEEDINGS 

Docket No. VA 91-410-R 

Through VA 91-'411-R 

citation No. 9861401: 4/4/91 

Through No. 9861402; 4/4/91 

Mine No. 12 44-06423 

Docket No. VA 91-412-R 

citation No. 9861047; 4/4/91 

Mine No. 11 44-04204 

CIVIL PENALTY PROCEEDINGS 

Docket No. VA 91-454 

A. C. No. 44-04204-035380 

Docket No. VA 91-455 

A. C. No. 44-06423-035250 

No. 11 Mine 

DECISION APPROVING SETTLEMENT 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On December 4, 1991, the Secretary filed a mo~ion to approve 

a settlement between the parties in the above cases. The cases 

include 3 alleged violations of 30 C.F.R. 70.209{b), each of which 

was originally assessed at $1200. The Secretary continues to 

assert that the violations resulted from a deliberate act, which is 

denied by the mine operator. The degree of negligence is disputed, 

and the parties agree to a reduction in the total penalties from 

$3600 to $2880. 

I have considered the motion in the light of the criteria in 

section llO(i) of the Act and conclude that it should be approved. 

368 
Accordingly, the settlement motion is APPROVED. The operator 

is ORDERED to pay within 30 days of the date of this order, the sum 

of $2880 for the violations charged in this proceeding. 

IT IS FURTHER ORDERED, Ytl;J.at the contest proceedings are 

DISMISSED. 

Distribution: 

,,.., . 

J U//l-L--s. //-/:i vc~""~~ James A. Broderick 

Administrative Law Judge 

Jacksons. White, Jr., Esq., White, Elliott & Bundy, P. o. Box 429, 

Abingdon, VA 24210 (CertifiedMail) 

Douglas N. White, Esq., Office of the Solicitor, U. s. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

/fas 

369 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 20, 1992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

. . 

. . 

. . Docket No. WEST 91-87-M 

A. C. No. 04-04684-05510 

Docket No. WEST 91-370-M 

A. C. No. 04-04684-05511 

PETERS & GARMAN CONSTRUCTION, : 

Respondent Shell Lane Mine 

ORDER VACATING DEFAULT 

DECISION APPROVING SETTLEMENTS 

These cases are now before me pursuant to Orders of the 

Commission dated February 1r,-· 1992 • 

As stated in the Commission orders, the parties have reached 

a settlement in these cases but were delayed in submitting the 

agreements because the operator's counsel was temporarily out-ofstate. Bearing in mind the Commission's repeated admonition that 

default is a harsh remedy and since the parties have settled 

these matters, I conclude that relief from default is warranted. 

The parties have filed a joint motion to approve settlements 

in these cases. A modest reduction in penalties from $267 to 

$253 is proposed. I have considered the representations and 

documentation submitted in these cases, and I conclude that the 

proffered settlements are appropriate under the criteria set 

section llO(i) of the Acto 

In light of the foregoing, it is ORDERED that the defaults 

issued in these cases be and are hereby VACATED. 

is further ORDERED that the motion for approval of 

settlements be GRANTED and the operator PAY a penalty of $253 

within 30 days of the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

370 
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 FOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

for AMOS HICKS, 

Complainant 

v. 

COBRA MINING, INC., 

JERRY K. LESTER, AND 

CARTER MESSER, 

Respondent 

Before: Judge Weisberger 

FEB 211992 

DISCRIMINATION PROCEEDING 

Docket No. VA 89-72-D 

NORT CD 89-18 

DECIS.ION 

On January 13, 1992, the Commission issued a decision on 

this matter remanding this case to me for additional 

reconsideration with regard to the amount of consequential 

damages Complainant is entitled to in connection with the loss of 

his pickup truck that was repossessed shortly after he was 

discriminatorily discharged in May 1989. (Docket No. VA 89-72-D 

14 FMSHRC Specifically, the Commission directed that the 

record be reopened to receive evidence of the value of the truck 

at the time of repossession. 

on January 17, 1992, I issued an Order requiring the 

parties, by Janaury 31, 1992 to " ... confer and attempt to 

stipulate the fair market value of the vehicle in question at 

the time of repossession. Should this amount be stipulated to, 

the parties shall file a stipulation by January 31, 1992. If the 

parties cannot stipulate to the value of the truck, then, by 

January 31, 1992, the parties shall file evidence of the market 

value of the truck at the time of repossession. The evidence 

filed shall pertain to such factors as the condition of the 

truck, equipment options, depreciation during the 14 months 

complainant owned it, and independent appraisal manuals. Each 

party shall have the right to reply to the other party's 

submission of evidence. Such reply shall be filed by 

February 7, 1992. 11 

Pursuant to a request from Complainant, a one week extention 

was granted to comply with the terms of the Order. 

371 
On Feburary 7, 1992 the Secretary filed a Brief containing a 

statement regarding the fair market value of the truck in 

question. Respondents have not filed any submission required by 

the Order of January 17, 1992. 

The representations in Complainant's Brief and the 

statements submitted in the Brief, regarding the fair market 

value of the subject truck have not been contradicted or rebutted 

by Respondent who have not responded to the Order of January 17, 

1992. Accordingly, I accept the figures submitted by Complainant 

and find that the fair market value of the truck when repossessed 

was $9,927.98 Further, when the amount is reduced by resale 

amount of the truck ($7,400) and increased by the lasts Mr. Hicks 

incurred during the repossession, the resulting amount, $2,670.42 

is the damages owed Complainant. 

Complainant also represents that interest has been 

calculated to be $667 from the "day·of repossession through the 

present date". Respondent have not filed any submission 

disagreeing with this representation, and therefore it is 

accepted. 

Accordingly it is ORDERED that Respondents shall, within 30 

days of this Decision, pay Complainant $2,670.42, as consequential damages, for the loss of his truck, plus interest of 

667.02. 

,/Avram £\L-- Weisberger 

Administrative Law Judge 

Distribution~ 

Glenn M. Loos, Esq., Office of the Solicitor, U. S. Department of 

Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail} 

Mr. Amos R. Hicks, Rt. 2, Box 27 D, Paynesville, WV 24873 

(Certified Mail) 

Jerry K. Lester, Route 83, Box 1751, Grundy, VA 24614 (Certified 

Mail) 

Carter Messer, Route 2, Box 649, Grundy, VA 24614 (Certified 

Mail) 

nb 

372 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

FEB 211992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FORD CONSTRUCTION COMPANY, 

Respondent 

. . 

. . 

. . 

Docket Noo WEST 90-346-M 

A.C. No. 04-04925-05503 AMH 

Royal Mountain King 

DECISION 

Appearances: Susanne Lewald,'·:Esq., Office of the Solicitor, U .s. 

Department of Labor, San Francisco, CA, 

for Petitioner; 

Robert D. Peterson, Esq., Rocklin, CA, 

for Respondent. 

Before: Judge Morris 

Petitioner, the Secretary of Labor, on behalf of the Mine 

Safety and Health Administration C"MSHA") charges that Respondent 

Ford Construction Company ("FCC") violated safety regulations 

promulgated under the Federal Mine Safety and Health Act, 30 

U • S • C. § 8 01 et ~ Q ( " the Act" ) • 

A hearing on the merits was held in Sacramento, California 

on November 13v 1991. 

The parties filed post trial briefs. 

Threshold Issue 

The threshold issue is whether MSHA has jurisdiction in the 

State of California or has it been preempted by Cal-OSHA. 

FCC raised this issue at the hearing but did not pursue it 

in its post-trial brief. Inasmuch as FCC filed material in the 

nature of a post-trial brief at the close of the hearing, the 

Judge believes the threshold issue should be considered. 

FCC relies on Troy Gold Industries, Ltd v. Occupational 

Safety and Health Appeals Board, Division of Occupational Safety 

and Health 187 Cal. App. 3d 379, 231 cal. Rptr 861 (Nov. 1986). 

A summary of the relevent California statutes filed herein is 

necessary. 

373 
Section 6703 vests jurisdiction over employment and places 

of employment in the California Division of Occupational Safety 

and Heal th. 

Section 6303 defines "Place of Employment" and "Employment." 

Section 6303.5 addresses the exercise of jurisdiction by a 

federal agency. This section provides as follows: 

§ 6303.5. Effect of exercise of jurisdiction by federal 

agency 

Nothing in this division shall be construed 

to limit the jurisdiction of the state over 

any employment or place of employment by reason of the exercise of occupational safety and 

health jurisdiction by any federal agency if 

federal jurisdiction is being exercised under 

a federal law which expressly authorizes concurrent state jurisdiction over occupational 

safety or health issues. 

Section 6304 defines "employer." 

Section 7950 is the statutory citation for the Tom Carroll 

Memorial Tunnel and Mine Safety Act of 1972. Title 8, Subpart 

17, Section 6950, contains various Mine Safety Orders. These 

orders appear to establish minimum safety standards at mines. 

Title 8v Article 16v Section 7005 addresses drilling operations and jumboso 

Discussion 

MSHA has a broad grant of authority to conduct inspections 

of mining facilities. The statute provides at Section 4 of the 

Act that uu each coal or other mineu 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 chapter." 30 u.s.c. 

§ 8030 The Act further provides in Section 506 that the States 

may have concurrent jurisdiction with the MSHA to inspect and 

regulate mining facilities, and are preempted by the federal 

statute to the extent that any "such State law is in conflict 

with this chapter or with any order issued or any mandatory 

health or safety standard." 30 u.s.c. § 955(a). 

374 
Section 6307 of the California Labor Code provides that 

cal-OSHA has jurisdiction "over every employment and place of 

employment" in the state. That broad jurisdictional grant has 

been, however, qualified by Labor Code Section 6303(a) which 

def in es the "place of employment" as "any place, and the premises 

appurtenant thereto, where employment is carried on, except a 

place the health and safety jurisdiction over which is vested by 

law in, and actively exercised by, any state or federal agency 

other than the division." [Emphasis added.] Thus it would 

appear from the plain meaning of the statutory language that in 

places where a federal agency is authorized to conduct inspections, and where that federal agency actually does conduct inspections, Cal-OSHA is precluded from exercising concurrent jurisdiction pursuant to state law. 

This is the exact result which the California Court of 

Appeals arrived at in the TrQy Gold. case. In that case, ci tations issued by cal-OSHA were vacated on the grounds that the 

gold mine where the citations arose was within MSHA jurisdiction, 

and where MSHA had been actively involved in exercising that 

jurisdiction. The court reasoned that; 

•• o the intent of the Legislature, which we 

derive from the unambiguous language of section 6303, is for the Division to have potential plenary jurisdiction over the occupation 

al health and safety of the place of employment except where such jurisdiction would duplicate the efforts of another agency. [Emphasis addedo] 

Troy Gold Industriesu Ltdo v. Occupational Safety and Health 

Appeals Boardv 187 Calo App.3d 379, at 389. 

In an apparent response to the Troy Gold decision which 

restricted cal-OSHA jurisdiction in places of employment subject 

to active federal regulation? Iabor Code Section 6303 was expanded 1988 with the adoption of Labor Code Section 6303.5 which 

provides that 11 nothing in this division shall be construed to limit the jurisdiction of the state over any employment or place of 

employment by reason of the exercise of occupational safety and 

health jurisdicition by any federal agency if federal jurisdiction is being exercised under a federal law which expressly authorizes concurrent state jurisdiction over occupational safety 

or heal th issues." 

california Labor Code Section 6303.5 is, on its face, at 

odds with the plain language of Section 6303(a), particularly as 

375 
interpreted in the Troy Gold case. This fact notwithstanding, 

nothing in Labor Code Section 6303.5 divests MSHA of any part of 

its jurisdiction to conduct inspections of California mines. 

Consequently, Section 6303.5's only effect is to re-affirm that 

the state safety and health division may exercise the concurrent 

jurisdiction already granted in and recognized by the federal 

statute. 30 u.s.c. Section 955Ca); Secretary of Labor v. 

Brubaker-Mann Inc., 8 FMSHRC 1487 (1986). 

It is clear from the foregoing that as a result of the enactment of california Labor Code, Section 6303.5, cal-OSHA may 

exercise concurrent jurisdiction with MSHA. In order to assure 

that concurrent jurisdiction among state and federal agencies not 

lead to undue confusion, the federal statute sets forth rules to 

follow in the event that the standards used to cite employers 

under such dual regulation should conflict with one another. 

Section 506(a) of the Act provides that the federal standard 

shall supersede the state standard when the state standard is in 

conflict with the federal act. 30 u.s.c. § 955(a). That preemptive language is, however, qualified by Section 506(b) which recognizes that there may be situations in which the states have 

more stringent standards providing a greater degree of worker 

safety than the federal act. In such circumstances, the statute 

provides that those provisions 'of state law which "provide for 

more stringent health and safety standards applicable to coal or 

other mines than do the provisions of the Act ••• shall not 

thereby be construed or held to be in conflict with the Act. 11 

30 U.S.C. § 955(b). The same qualification covers the situation 

where the states have promulgated standards, and the federal act 

has no equivalent standards at allo 

In sumu Cal-OSHA and the MSHA may exercise their jurisdiction over California mines concurrently. That concurrent jurisdiction may be exercised by the state to the extent that statA 

standards are the e:;i:uivalent of federal standards, are more 

stringent than federal standards, or cover topics not addressed 

by federal standardso To the extent that state standards are 

more lax than federal standards, they will be held to conflict 

with the federal act, and will be preempted thereby. There is no 

contrary situation under which the state standards will be held 

to preempt the federal standards. Thus, although a more stringent federal standard will preempt a less stringent state standard, a more stringent state standard does not preempt the lesser 

federal standard; it merely co-exists with it. Under this regulatory scheme, the worker is assured the greatest degree of protection which the combination of federal and state regulatory 

agencies have mandated. 

376 
Thus, the fact that Cal-OSHA has jurisdiction over mines has 

no bearing on this case, nor does the fact that the state plan 

has provisions covering b.lnneling (not at issue in this case), 

nor would it make any difference if the state had more stringent 

equipment regulations covering the earthmovers at issue in this 

case. 

There is no legal basis for, or authority in support of, the 

proposition that the MSHA is precluded from inspecting a construction site at a California mine where an independent contractor was in the process of constructing tailings ponds. 

Accordingly, FCC's motion to dismiss is DENIED. 

Summary of the Background Evidence 

JAIME ALVAREZ, an MSHA mine safety and health inspector, 

works in the MSHA field offic·e in Vacaville, california. 

Mr. Alvarez, experienced in mining, inspected FCC 

June 13-15, 1990. The main inspection was being conducted at the 

Meridian Gold Company, a gold mine. (Tr. 9, 11). 

FCC, a contractor, was widening a settling pond 1 and raising the height of the dam in front of the settling pond area. 

FCC's work also included laying a pad of clay to prevent 

toxic substances from leaching into the soil. {Tr. 13, 35, 44). 

This operation involved a large amount of heavy mobile equipment. 

Mro Alvarez was accompanied by his supervisor, Mr. Willy 

Davisu also by Mra Kim Wittv safety representative of Meridian. 

In additionu Louie Kempv the FCC foreman was presento (Tro 14)o 

In cross examination, the inspector conceded his field notes 

do not reflect a conversation with Mro Witt indicating that the 

inspected area was part of the mine siteo Howeveru the inspector 

had looked at a mine map. (TrQ 36, 37) a 

Mr. Wittv at the inspectorus request, took him to the site 

of contractors other than FCCo (Tr. 37). The entire Meridian 

1 A settling or tailing pond is a large pond where mine 

tailings are dumped. The heavier materials settle to the bottom 

and the water is normally recycled to other uses. (Tr. 12}. 

377 
Gold Mine area was fenced. The inspection group had entered 

through the main gate. (Tr. 38). 

On June 13 and 14, Messrs. Witt and Kemp accompanied the 

inspector. (Tr. 37). 

All of the equipment cited by Mr. Alvarez was working in the 

same general area, about a half mile square. (Tr. 44). Only FCC 

was working in this particular area. (Tr. 45). 

Mr. Witt (Meridian's representative) introduced Mr. Kemp as 

the FCC foreman. Mr. Kemp also identified himself as the FCC 

foreman. (Tr e 43). 

Citation No. 3458357 

This citation was issued when Mr. Alvarez observed the 

driver of a 630D Moore scraper operating the vehicle without 

wearing a seat belt. MSHA's regulation, 30 C.F.R. 56.14130, 2 

addresses roll-over protective structures and seat belts. 

The scraper is approximately 49 feet long, 13 feet wide and 

14 feet high. '!he operator was sitting in the front of the unit. 

There was no door alongside the operator who was 5 1/2 to 6 feet 

above the ground. '!he equipment was operating on a steep incline 

of 40 to 45 degrees. There were numerous pot holes, bumps and 

loose material on the road. CTr. 2, 15-17). 

2 § 56.14130 Roll-over protective structures 

(ROPS} and seat belts. 

(g) wearing seat belts. Seat belts shall be 

worn by the equipment operator except that 

when operating graders from a standing position, 

the grader operator shall wear safety lines and 

a harness in place of a seat belt. 

378 
Mr. Kim Witt (Meridian) talked to Mr. Kemp (FCC) and in b.lrn 

they talked to the equipment operator. The operator immediately 

put on his seat belt. 

The inspector considered the gravity to be such that if the 

operator was thrown from the driver's seat, he could be run over 

by the rear tires. (Tr 17, 18). 

The inspector considered the negligence to be moderate since 

Meridian had notified FCC that they were under MSHA's jurisdiction. Fur~her, Meridian's rules require the use of seat belts. 

Inspector Alvarez conceded his field notes show Mr. Louie 

Kemp was present but the notes do not reflect the presence of Mr. 

Witt. The inspector indicated he was basically interested in the 

company at the immediate scene. (Tr. 40). 

Mr. Kemp was present when this piece of eq:uipment was inspected. He did not deny the operator was an FCC employee. (Tr. 

66). 

Discussion 

FCC correctly argues that seat belts are not required to be 

installed on scrapers. Section 56.14130 requires that seat belts 

be installed on 

Cl) crawler tractors and crawler loaders1 

( 2) graders# 

(3) wheel loaders and wheel tractors; 

(4) the tractor portion of semi-mounted scrapers, dumpers, 

water wagons, bottom dump wagons, rear dump wagons and towed 

fifth wheel attachments0 

(5} skid-steer loaders; and 

(6) agricultural tractors. 

A dictionary of Mining, Mineral and related terms, U.S. 

Department of Interior 1968 defines a scraper in part as follows: 

b. A steel tractor-driven surface vehicle, 

6 to 12 cubic yard capacity, mounted on large 

rubber-tired wheels. The bottom is fitted 

379 
with a cutting blade which, when lowered, is 

dragged through the soil. When full, the 

scraper is transported to the dumping point 

where the material is discharged through the 

bottom of the vehicle. in an even layer; used 

for stripping and releveling topsoil and soft 

material at opencast pits. see also scarifier. 

Nelson. c. A scraper loader of scraper chain 

conveyor. e. A mechanical contrivance used 

at collieries to scrape the culm or slack 

along a trough to the place of deposit. 

g. An apparatus drawn by horses or oxen for 

scraping up earth in making roads or canals, 

and for removing overburden from shallow coalbeds and mineral deposits. Fay. h. An apparatus used to take up coal from the floor of a 

mine after it has been shot, and deposit it 

either in cars or Ih a conveyor. It is pulled 

back and forth by two ropes attached to separate drums of a hoist; a rubber-tired device 

used to move earth in surface mining; i. A machine used in mines for loading cars and transporting ore or waste for short distances. 

There are two basic types of scraper: (1) the 

hoe or open type, which is particularly suitable for moving coarse, lumpy ore, and (2) the 

box or closed type, which is particularly suited for handling fine material, especially on a 

loading slide. j" A blade or blades caused to 

bear against the moving conveyor belt for the 

purpose of removing material sticking to the 

conveyor belt. k. A digging, hauling, and grading machine having a cutting edge, a carrying 

bowl, a movable front wall (apron), and a dumping or ejecting mechanism. Also called carrying scraperu pan. lo See machine scraper. 

DoOoTo l.m. '!he name applied to a bowl scraper 

multibucket excavator; also known as scraper 

excavator. 

It may well be that the tenn 9

' scraper" fits within one of 

the six paragraphs enumerated in§ 56.14130(a) but the record is 

silent on that issue. 

This citation should be vacated. 

380 
Citation No. 3458423 

This citation alleges FCC violated 30 C.F.R. § 56.14130. At 

the commencement of the hearing, Petitioner moved to vacate this 

citation. (Tr. ·5, 6). 

For good cause, the citation should be vacated. 

Citation No. 3458424 

This citation involved a CAT dozer towing a multi-bladed rotary tiller. The equipment was secured with a primary tow bare 

However, the regulation, 30 C.F.R. § 56.14209, 3 requires a 

secondary rigging whether it be a safety chain or cable. 

The rotary tiller was 10 feet long by 8 feet wide with numerous axle bonnets containing rotary discs used to scrape the 

ground. A visual check determined there was no secondary rigging 

in place. ( Tr • 18 , 1 9 ) • 

The towing was taking place on ground similar to recently 

plowed farm-land. 

This violation was discussed with Messrs. Witt and Kemp. 

Abatement was satisfactory and accomplished by installing a 

safety cable. C Tr. 20) • 

The inspector considered the gravity, on an injury-illness 

basis to be unlikely because if the rope brokeu the equipment 

wouldnut roll faro 

The towed equipment had neither its own brake system nor any 

brake lights. (Tr .. 47). 

3 § 56.14209 Safety procedures for towing. 

(b) Unless steering and braking are under the 

control of the e:;i:uipment operator on the towed 

equipmentu a safety chain or wire rope capable 

of withstanding the loads to which it could be 

subjected shall be used in conjunction with any 

primary rigging. 

381 
Mr. Kemp was present and talked to the equipment operator. 

He did not deny that the operator was an FCC employee. (Tr. 67). 

Discussion 

FCC argues there is no evidence what company owned and operted the equipment. Nor was there any evidence whose employee was 

operating the dozer. 

I am not persuaded by FCC's arguments. This was obviously 

an inspection of FCC's operations in a half mile square. (Tr. 

44). Neither representative denied ownership, possession, control or operator identity. In fact they both produced a safety 

cable to abate the violation. (Tr. 20)& 

The uncontroverted evidence establishes the rotary tiller 

was towed without a safety chain. A violation of C.FoR. 

§ 56.14209 was established. 

Citation No. 3458424 should be affirmed. 

Citation No. 3458425 

This citation involved a large Caterpillar dozer, D8H. The 

operator violated 30 C.F.R. § 56.14130(g) 4 in not wearing a seat 

belt. This eq:uipment was traveling in excess of five miles per 

hour when the inspector observed it. 

This citation was discussed with Messrs. Witt and Kemp. 

After a short conversation, Mr. Kemp talked to his employee who 

put on his seat belt" 

The inspector considered the gravityv based on injuryillness to be unlikely because the dozer was moving slowly on 

flat ground. (Tr. 23). He considered negligence to be moderate 

because Meridian had notified FCC of the MSHA rules and regulations. (Tr. 23, 49, 50}. 

Mr. Alvarez's notes indicate Mr. Edgar Smithv Meridian~s 

foreman and Mr. Louie Kemp were present. (Tr. 48). Kim Witt was 

also with this inspection gro.ip. (~r. 50). 

4 Cited, supra, fn 2 

382 
Mr. Kemp talked to the operator during this inspection. 

Mr. Kemp did not deny the operator was an FCC employee" (Tr. 

67) 0 

Discussion 

Inspector Alvarez described this dozer as "an earth moving 

heavy piece of mobile eq:uipment. ii (Tr. 22). 

However, Section 56.14130(a) is equipment specific as to 

what pieces and types of equipment are subject to the requirements. Dozers are not included .in the specific list of types of 

equipment covered by the seat belt requirements. 

Accordingly, MSHA did not carry its burden of proof that the 

dozer was subject to § 56 .. 14130(a). Since no seat belts are required to be installed, there was no violation of for failing to 

wear a seat belt. 

Citation No. 3458425 should be vacated. 

Citation No. 3458426 

This citation alleges FCC violated 30 C.F.R. § 56.14132. 5 

An Ingersoll Randv 5D-150Bu heavy roller compactor was being 

operated by FCC without a reverse signal alann and without spotters. (Tr. 35, 51, 52). 'Ihe inspector climbed on the equipment 

and noticed the obstructed view to the rear. The view was obstructed by the length and height of the equipment. (Tr. 23-25). 

Basically there was a blind spot behind the operator's positiono 

There were one to four employees in the area but the inspector 

did not learn their identity 

5 § 56.14132 Horns and backup alarms. 

Cb){lfi When the operator has an obstructed 

ew to rearu self~propelled mobile equip~ 

ment shall have-

( i} An automatic reverse-:.activated signal 

alarm0 

(ii) A wheel-mounted bell alarm which sounds 

at least once for each three feet reverse 

movement; 

(iii) A discriminating backup alarm that covers the area of obstructed viewt or 

(iv) An observer to signal when it is safe 

to back Upo 

383 
Messrs. Witt and Kemp were notified of the violation and 

they confirmed there was no backup alarm on the equipment nor 

were spotters being used. (Tr. 35-54, 61-62). 

Meridian had an alarm installed. 

In the inspector's opinion, the possibility of a fatal accident was substantial and reasonably likely. (Tr. 26). Be further considered negligence to be moderate because Meridian had 

notified FCC they were working under MSHA regulations. (Tr. 27). 

The inspector did not determine the identity of the operator 

of this equipment. (Tr. 52). 

Mr. Kemp was present during this inspection. He did not 

deny that the equipment operator was an FCC employee. (Tr. 68). 

Discussion 

FCC cites portions of the transcript in support of its argument. Specifically, FCC relies on the following exchange at the 

hearing: 

Q. And did you determine who owned this piece of 

equipment? 

A. No, we just determined who was using it. 

Q. And who was using it? 

A. Ford Construction Company. 

Q. And how did you determine that? 

Ao Asked the foreman Louie Kemp, who was in 

charge of all the equipment. There was 

some question earlier who owned and operated the equipment, and I believe the conversation led to Meridian Gold stating that 

Ford Construction was the primary contractor there, and they were in charge of whatever went on at that particular mine site 

area including the maintenance of the eguipmento 

Qo But in fact that was not the case, was it? 

In fact Meridian Construction's own peoplecame and fixed those alarms, right? 

384 
A. As far as I know they did. 

Q. And did you detennine the identity of the 

operator? 

A. No. 

(Emphasis added). 

FCC's arguments are misdirected. Neither ownership of the 

equipment nor maintenance responsibilities would relieve FCC from 

the obligation of complying with the regulation since it operated 

the equipment. 

FCC urges an inconsistency exists in connection with this 

citation. 

It is contended that Mr.'·Ai.varez testified that before he 

climbed up on this piece of· equipment he "walked up behind it and 

noted that it had a lock (sic) to the piece of equipment at a 

distance of roughly four to five feet. I could no longer see the 

operator." (Tr. 25 lines 21-24). FCC claims Mr. Alvarez's 

testimony was contradicted when, in cross examination, he testified he did not believe he walked up to the rear of the equipment. 

(Tr. 53, lines 22 through 25 and Tr. 54, line 10). 

I disagree. No inconsistency exists here. FCC's cross 

examination completely changes the inquiry when the cross 

examiner asks "•o• while this equipment was backing you didn't 

walk up to the rear a. o 11 

FCC further points to an inconsistency arising from the 

following testimony by Mro Alvarez: 

Q. You have indicated that Mr. Louis Kemp was a foreman. 

How did you detennine that? 

Ao I eventually had asked Mr .. Kim Witt when he took me out 

to see where the contractors were and we ran into this 

Ford Construction Company doing the contract. I advised 

him that I also wanted to see the foreman or superintendent or whoever was in charge of the operation. He went 

and got Mr. Kim Witt. 

Q. So you tell Mr. Kim Witt the fact that you wanted the 

guy that is in charge at Ford, he goes and gets Mr. Kim 

Witt? 

385 
A. Yes, sir. 

Q. Now, what did you ask Mr. Kim Witt? 

A. In regard to what, sir? 

Q. In regard to his status with Ford Construction? 

A. I basically asked him if he was the man in charge and he 

said that he was the foreman. 

As FCC suggests, Mr. Alvarez may have been confused (Brief 

page 12 line 26). However, there was an abundance of evidence 

establishing that Mr. Louie Kemp was the FCC foreman. 

FCC's considerable efforts attacking the credibility of Mr. 

Alvarez are rejected. I found Mr. Alvarez to be quite credible • 

. citation No. 3458433 

This citation involved a caterpillar 835 compactor similar 

to the equipment in the previous citation. 'Ibe backup alarm on 

the compactor was not operating on a constant basis, and no 

spotters were being used. (Tr. 35). At times the alarm worked 

and at other times it did not. This situation constituted a 

violation of 30 C.F.R. § 56.14132. 6 

Mr. Witt and Mr. Kemp were in attendance when the equipment 

was checked. 

There was probably a short in the compactor. It was 

repaired by a mechanic" (Tro 27-29). 

The inspector considered the gravity to be low because the 

area was flat and there was no foot traffic. He further considered negligence to be moderate since Meridian advised FCC they 

were subject to MSHA regulations. (Tr. 29). 

6 § 56.14132 Horns and tackup alarms 

(a) Manually-operated horns or other audible 

warning devices provided on self-propelled mobile equipment as a safety feature shall be 

maintained in functional condition. 

386 
Mr. Alvarez conceded the ba.ck-up alarm wasn't operating 

automatically. (Tr. 54, 55). The inspector did not identify the 

operator of the equipment. (Tr. 55). 

The inspector's field notes indicate Edgar Smith, Mine 

Superintendent, was present. (Tr. 56). 

Mr. Kemp was also present during this inspection and he did 

not deny that the operator was an FCC employee. (Tr. 68). 

Discussion 

In this citation, as with the previous citation, the uncontroverted evidence indicates the back-up alarm was not operating 

on a constant basis. 

The backup alarm was therefore, not in a functional condition as required by 30 C.F.R. § 56.14132. 

FCC states the inspector had "no idea" who owned the piece 

of equipment or who was operating it, citing the transcript at 

page 55, lines 6 through 12. 

As noted herein ownership is not a critical element in 

MSHA 1 s proof. 

A considerable portion of FCC's arguments in this citation 

and others deals with the failure of the inspector's notes to 

always reflect the presence, for example, of FCC's Louis Kemp. 

FCC urges the Judge to totally reject MSHA's cases as not 

credibleo 

Fcc~s credibility views are rejected. An inspector's testimony is not expected to precisely follow his notes. Also the 

reverse is trueo In addition, as Mr. Alvarez testified, his 

notes are primarily to refresh his recollection when he writes 

his citations. Mrs Alvarez specifically testified that Mr. Kemp 

was present when all of the violative conditions were observed. 

Finallyv neither Mro Kemp nor anyone on behalf of FCC offered any 

contrary evidence o 

FCC contends Mro Alvarez vs credibility suffered when he 

stated that Kim Witt and Louie Kemp were present during this portion of the inspection. However, the inspector couldn't remember 

whether Edgar Smith was present •. Specifically FCC cites the 

transcript at page 55, lines 20 through 25 and page 56, lines 1 

through 60 The cited portion reads as follows: 

387 
Q. How about Edgar Smith? 

A. Probably there. 

Q. I beg your pardon? 

A. More than likely he was there. 

Q. And do your field safety notes show that 

at least in that paragraph entitled accompanied by, does it show only Edgar Smith? 

A. Yes, it has Edgar Smith, mine superintendent. 

Q. It says what? I am sorry. 

A. Beg your pardon? 

Q. What does it say? 

A. It notes Edgar Smith, mine superintendent. 

The main focus of the evidence was not Edgar Smith but Kim 

Witt and Louie Kemp. I do not find the cited exchange affects 

the inspector's credibility. 

Citation No. 3458433 should be affirmed. 

Citation No. 3458434 

This citation was issued for a violation of 30 C.FoRo 

§ 560141320 7 A caterpillar model number 641 water wagon had an 

inoperable backup alann as reg:uired when there is an obstructed view to the rear. 

A further inspection by Mre Witt and Mro Kemp confirmed the 

defecto Meridianis mechanic repaired the alanne 

The inspector considered the gravity to be low as the area 

was flat and there was no foot traffic. 

7 Cited, supra, fn 6. 

388 
Inasmuch as Meridian had notified FCC of the MSHA regulations, the inspector considered FCC's negligence to be moderate. 

(Tr. 29-31, 58). 

In connection with this citation, Mr. Alvarez's notes indicate the following individuals were present: Edgar Smith (Mine 

superintendent); Chris Gagg (Miner's representative); Willy Davis 

(MSHA) and Kim Witt (Meridian). (Tr. 59). His notes do not 

reflect that Mr. Louie Kemp was present. CTr. 60). 

Mr. Kemp was present during this inspection and he did not 

deny that the operator was an FCC employee. (Tr. 69). 

Discussion 

The uncontroverted facts here establish a violation of the 

regulation as the water wagon lacked a back-up alarm. 

FCC points out that whil.e Mr. Alvarez testified to the 

presence of both K. Witt and L. Kemp his field notes show 

E. Smith, Chris Gagg, Willy Davis and K. Witt were present. But 

Mr. Alvarez concedes that his notes did not show the presence of 

L. Kemp (Tr. 60, lines 3 through 5). 

This issue has been previously considered. FCC offered no 

contrary evidence and the absence of any contrary witness and Mr. 

Alvarez's credible testimony causes me to conclude that Mr. Kemp 

was present. 

FCC notes the lack of employee exposure (no foot traffic); 

however 9 lack of employee exposure is an issue to be considered 

in assessing a civil penalty. 

Citation Noo 3458434 should be affirmed. 

Citation No. 3458435 

This citation involves two CAT 637B Moore scrapers, one of 

the scrapers was cited in Citation Noo 3458357 (no seat belts). 

This equipment, which weighs over 100,000 pounds, was traveling at a high rate of speed to the settling pond construction 

areae The terrain consisted of loose ground with bumps and pot 

holeso 

Mr. Kemp 1 s vehicle followed one of the trucks and they were 

clocked in excess of 24 plus miles per hour. (Tr. 31, 32). 

389 
The citation alleges a violation of 30 CoF.R. § 56.9100. 8 

Messrs. Kemp and Witt discussed the matter and Mr. Witt 

stated the mine had a posted speed limit of 15 miles per hour. 

(Tr. 33). Mr. Kemp felt there was a need to have the vehicles 

moving as fast as they could. 

The vehicles were traveling on a roadway where there was 

constant foot traffic. If an accident occurred, a fatality could 

result. (Tr. 33). 

Messrs. Witt and Kemp agreed that the vehicles should not 

travel over 15 miles per hour in this area. (Tr. 34). 

The inspector considered negligence to be high because FCC 

had been made aware of the speed limits. 

Mr. Alvarez did not determine· the ownership of the truck nor 

did he identify the driver. (Tr. 57). 

Mr. Alvarez 9 s field notes reflect that when the vehicle was 

clockedv the four men previously mentioned in Citation No. 

3458435 were present. These were Smithv Gagg, David, Witt as 

well as Louie Kemp. (Tr. 60). 

The inspector did not observe ·any posted speed limit signs 

in this particular area but he had seen the posting. In addition, he did not learn who owned either scraper nor did he identify the driver • ( Tr • 3 3 v 61 ) • 

Field notes are used as a reference when an inspector later 

writes his citation. (Tr. 70). 

Mr. Kemp was not asked the names of the various operators. 

Howeveru Mr. Kemp was asked to identify their employer. (Tr. 

14,) 0 

8 § 56.9100 Traffic control. 

To provide for the safe movement of self-propelled mobile equipment-

(a) Rules governing speed, right-of-way, direction of movement~ and the use of headlights 

to assure appropriate visibility, shall be established and followed at each mine; 

390 
Discussion 

The regulation requires that rules governing speed etc. for 

the operation of vehicles be posted and followed. 

Mr. Witt stated there was a posted speed limit of 15 miles 

per hour so the posting is not an issue in this case .. 

FCC contends the evidence is fatally defective in several 

respects: 

Initially, it is claimed that a speed of 24 mph is not 

excessive. I disagree, Operating a 100 6 000 pound vehicle in a 

construction area at such a speed is excessive as a matter of 

law, especially when loose ground, bumps and potholes exist in 

the travelway. (Tr. 32). 

Furtherv was the speed limit of 15 mph established and 

agreed upon the day of the inspection. FCC cites the transcript 

at page 34, lines 4 through 9., in support of its view. It 

provides: 

During the talk Mr .. Kim Witt and Mr. Louie 

Kemp and I, myself had, we finally arrived at 

that we could not allow these -- due to the 

conditions involved -- we could not allow 

these vehicles to travel over 15 miles per 

houro And that was settled as the limit in 

this new work areao 

I consider the above evidence mean that the existing 

speed limit would be strictly enforcedo Mro Witt 0 who should 

be knowledgeable as Meridian• s representative told MSHA that the 

mine had a posted speed limit of 15 miles per houro (Tro 32)e 

Mr o Louie Kernpi s view did not prevaiL He preferred to have the 

vehicles moving as fast as they couldo (Tr 32v 33)o Furtherv 

Mr o Alvarez tes fied that n

1Meridian Gold Company had 15 miles 

per hour speed limit posted at various areas throughout the mineo~ 

Mro Alvarez saw the posting himself but not in this areao (Tro 

33)0 The preponderance of the evidence shows that the site had a 

posted limit of 15 miles per hour prior to the time when the 

vehicles were being operated at 2 4 miles per hour o 

Further, was the driver of the speeding truck identified? 

The uncontroverted evidence shows that MrQ Kempq the FCC foreman, 

was present and talked to the driver. He did not deny that the 

driver was an FCC ernployeeo 

391 
On the uncontroverted evidence, Citation No. 3458435 should 

be affirmed. 

Civil Penalties 

Section llO(i) of the Act, 30 u.s.c. § 820(i), mandates consideration of six criteria in assessing civil penalties. 

There was no direct evidence offered as to the size of the 

business of FCC. 

The effect of the penalties on the ability of the operator 

to continue in business is a matter to be established by the 

operator. In the absence of facts to be contrary, I conclude the 

payment of the proposed penalties will not cause FCC to discontinue in business. Buffalo Mining Co., 2 IBMA 226 (1973); 

Associated Drilling, Inc., 3,IJ3MA164 (1974). 

The operator's history of previous violations was not 

in evidence. 

FCC was negligent as to each citation since each violative 

condition was open and obvious. 

Gravity was moderate as to Citation No. 3458424, the towed 

rotary tiller. 'Ihe equipment would not roll too far even if it 

came loose. 

The lack of a reverse b:lck-up alarm in three of the 

citations involve high gravity; these are situations that can 

result in a fatalityo 

The violative conditions here were promptly abated hence the 

operator is entitled to statutory good faith. 

Accordingly~ I enter the following: 

ORDER 

1 Q Ci ta ti on No o 3 4 5835 7 is VACATED. 

2Q Citation No. 3458423 is VACATED. 

3. Citation No. 3458424 is AFFIRMED and a civil penalty 

of $25 is ASSESSED. 

4. Citation No. 3458425 is VACATED. 

39 2 
5. Ci ta ti on No. 3458426 is AFFIRMED and a civil penalty 

of $75 is ASSESSED. 

6. Citation No. 3458433 is AFFIRMED and a civil penalty 

of $25 is ASSESSED. 

7. Citation No. 3458434 is AFFIRMED and a civil penalty 

of $25 is ASSESSED. 

8. Ci ta ti on No. 3458435 is AFFIRMED and a civil penalty 

of $100 is ASSESSED. 

Distribution: 

Susan Lewaldv Esqov Office of the Solicitoru U.Se Department 

of Laboru 71 Stevenson Street 0 Suite 1110 0 San Franciscov CA 

94105-2999 (Certified Mail) 

Robert Do Petersonu Esq.u FORD CONSTRUCTION COMPANY, Sunset 

Whitney Ranchu 3300 Sunset Boulevard #110 0 Rocklin, CA 95677 

(Certified Mail) 

sh 

393 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

February 21, 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

T & H COAL COMPANY, INC., 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 91-1285 

A. C. No. 15-13880-03543 D 

: No. 7 Mine 

Respondent : 

DECISION APPROVING PENALTY 

ORDER OF DISMISSAL 

Before: Judge Merlin 

The operator has filed a letter advising that it is withdrawing its contest in the above-captioned case and paying the 

proposed penalty.7 The Mine Safety and Health Administration has 

informed the Commission that the penalty has been paid. 

Citation No. 9859056 was issued as a 104(a) citation for an 

alleged violation of 30 C.F.R § 70.209(b). According to the 

Secretary, the respirable dust samples submitted to MSHA were 

invalid because respirable dust had been intentionally removed 

from the samples before they were submitted to MSHA. 

I have reviewed the citation in light of the six statutory 

criteria set forth in section llO(i) of the Actf 30 u.s.c. 

§ 820(i)u and find that the penalty assessed is in accordance 

with the provisions of the Act. 

Accordingly, I approve the $1,100 penalty assessment in this 

case and the operator having paid, this case is DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Douglas N. White, Esq., Office of the Solicitor, u. s. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Fields Taylor, T & H Coal Company, Inc., HC 82, Box 1065, Jackhorn, KY 41825 (Certified Mail) 

394 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

RICHARD SIERRA, 

Complainant 

v. 

PHELPS DODGE CORPORATION, 

Respondent 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

FEB 2 4 1992 

: 

. . 

DISCRIMINATION PROCEEDING 

Docket No. CENT 91-200-DM 

SC MD 91-05 

Tyrone Branch 

ORDER OF DISMISSAL 

Before: Judge Morris 

On February 18, 1992, the d3.y before a scheduled hearing in 

El Paso, Texas, Complainant advised.the Judge that he intended to 

withdraw his complaint unless he could have more time to secure 

the services of an attorney. 

The Judge declined to grant more time and Mr. Sierra orally 

withdrew his complaint due to "financial reasons." 

Commission Rule 11, 29 C.F.R. § 2700.11 permits a party to 

withdraw a pleading at any stage of a proceeding with approval of 

the Commission or the Judge. 

In view of Complainant's motion, Counsel for Respondent was 

advised and the hearing and related arrangements were canceled. 

For the foregoing reasons, this case is DISMISSED. 

Law Judge 

Distribution: 

Mr. Richard P. Sierra, Post Office Box 126, Silver City, NM 88062 

(Certified Mail) 

Michael D. Moberly, Esq., RYLEY, CARLOCK & APPLEWHITE, Suite 

2600, 101 North First Avenue, Phoenix, AZ 85003-1973 

( Certified Mai 1 > 

sh 

395 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

FEB 2 51992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

. . 

. . 

. . 

. . C.W. MINING COMPANY, : 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-245 

A.C. No. 42-01697-03627 

Bear Canyon #1 

DECISION 

Appearances: Robert J. Murphy, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Pe ti ti oner; 

Carl E. Kingston, Esq., 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~ the "Act." .. The 

Secretary of Labor on behalf of the Mine Safety and Health Administration 0 (MSHA) 0 charges the Respondent, the operator of the 

Bear Canyon #lv an underground coal mine, with a 104(d)(l) violation of a mandatory regulatory standard 30 C.F~R. § 75.1101-23(a). 

The operator filed a timely answer contesting the alleged 

104Cd)(l) violation, its characterization as serious and significant (S&S) and as unwarrantable failure, and the appropriateness 

of the proposed penaltyo 

Pursuant to notice, a hearing on .the merits was held before 

me at Salt Lake Cityu Utah, on January 28, 1992& 

Stipulations 

At the hearing, the parties entered into the record the following stipulations which I accept as established fact. 

1. c.w. Mining Company is engaged in mining and selling of 

bituminous coal in the United States and its mining operations 

affect interstate commerce. 

396 
2. c.w. Mining Company is the owner and operator of Bear 

Canyon #1 Mine, MSHA I.D. No. 42-01697. 

3. c.w. Mining Company is subject to the jurisdiction of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. §§ 801 

et ~ C "the Act"). 

4. The Administrative Law Judge has jurisdiction in this 

matter. 

5. The subj·ect citation and order were properly served by a 

duly authorized representative of the Secretary upon an agent of 

c.w. Mining Company on the dates and places stated therein, and 

may be admitted into evidence for the purpose of establishing 

their issuance, and not for the truthfulness or relevancy of any 

statements asserted therein. 

6. The exhibits to be offered by C. W. Mining Company and 

the Secretary are stipulated to be authentic but no stipulation 

is made as to their relevanc.e or the truth of the matters asserted therein. 

7. The proposed penalty will not affect c.w. Mining Company's ability to continue business. 

8. c.w. Mining Company is a medium size mine operator with 

361,826 tons of production in 1989. 

9& The certified copy of the MSHA Assessed Violations History accurately reflects the history of this mine for the two 

years prior to the date of the citation. 

The Evidence Presented 

On September 6, 1990, MSHA issued Section 104(d){l) Citation 

Noo 3414130 at the Bear canyon No. 1 Mine operated by C.W. Mining 

Companyo The operator was cited for a violation of 30 C.F.R. 

§ 75.1101-23(a) because the operation on at least one occasion 

had not complied with the approved plan for the storage of selfcontained self-rescuers. 

At the hearing the Secretary presented credible evidence 

that supported a finding that the operator violated the cited 

safety standard as alleged in the citation. The citation reads 

in part as follows: 

397 
The currently approved self-contained selfr eserve storage plan was not being complied 

with by the operatoro 

The 2nd East working section crew and foreman 

who observed exiting the mine at the end of 

their shift in a mantrip which did not have a 

"SCSR11 unit for every person riding the man trip. 

The man trip did not have any "SCSR" uni ts for 

any of the riderse 

On questioning the foreman, it was learned 

that "SCSR11 uni ts were not taken into the mine 

at the start of the shift. The foreman did not 

check any of his crew members for "SCSR" uni ts 

nor did he obtain a unit for himself. 

The foreman stated,. 11 he was familar with the 

storage plan11 but did not check on uni ts. 

The violation was promptly abated within 1/2 hour by providing the mantrip with a sufficient number of SCSR units for persons that would be riding the mantrip. 

Respondent presented evidence that each of the mantrips it 

normally used to carry men in and out of the mine had the required number of SCSR unitse On September 6, 1990, the foreman 

checked the SCSR units on the mantrip intended to be used before 

the men left to go underground. As the mantrip was readied to go 

underground 11 it was discovered that the transmission in the man-

·::r would not operate properly f so the foreman obtained a spare 

pickup parked nearby and used it to haul the men underground. 

He did :not check to see if this mantrip 11 the spare pickup 11 had 

the requir SCSR unitso 

Respondent also presented evidence that each man in the crew 

was wearing a filter type self rescuer throughout the shift and 

extra SCSR uni ts were stored throughout the mine underground inng enough SCSR units for all of the men stored at the underground area, which was within 300 feet of the site where the men 

were workingo The men were less than 2u000 feet from the nearest 

portalo The travel time while riding the mantrip from the surface to the working section was ten minutesq and there were locations along the mantrip travelway where SCSR units were stored 

and available for use if needed. 

Respondent asserts that the mantrip is not required to stay 

in the working section and very often leaves after delivering the 

398 
men to their work station. There has never been an occasion in 

the history of this mine when a miner has had to use a SCSR for 

any reason. Respondent contends there were no fire hazards 

existing at the time of the violation. 

Discussion and Disposition of the Issues 

At the hearing, after all issues were fully litigated and 

both sides rested, the Judge with consent of the parties and in 

open court with the respective attorneys and all witnesses present, stated his impressions of what the evidence presented established. The Judge stated that there was a violation of the 

mandatory safety standard 30 C.F.R. § 75.1101-23(a) as alleged in 

the citation, the gravity of the violation was serious with a 

potential of very serious injury and possible death, that negligence was high and that the violation could well have resulted 

from the operator's unwarrantable failure. The Judge also stated 

the evidence established that the .v.iolation was not S&S. Even 

though the violation caused a discrete safety hazard that could 

result in serious injury or death, the evidence was insufficient 

to establish that as a result of this isolated violation, there 

was a reasonable likefihood, evaluated in terms of continued normal mining operation, that the hazard contributed to would result 

in serious injury. 

The parties, nevertheless, at the conclusion of the hearing 

requested time to prepare and file written post-hearing briefs. 

Within the 20 days allowed for filing of post-hearing briefs, the 

parties reached and filed a settlement agreement covering all 

issues and moved for approval of the settlement agreement. The 

parties propose to modify the citation from a Section 104(d)(l) 

citation to a 104(a) non-S&S citation and amend the proposed 

penal to $ 500 o 

Based upon the evidence presented at the hearing, I find the 

provision of the settlement agreement are appropriate, supported 

the evidence and consistent with the criteria in Section 

1 O(i) the Acto The amended proposed penalty of $500 is 

assessed. It will not affect the operator's ability to remain in 

business. 

ORDER 

1. Citation No. 3414130 is modified to delete the characterization "significant and substantial" and, as so modified, the 

citation is AFFIRMED and a penalty of $500 is ASSESSED. 

399 
2. Respondent is ORDERED TO PAY to the Secretary of 

Labor a civil penalty in the sum of $500 in satisfaction of the 

citation in question within forty (40) days of the date of this 

decision and order, and upon receipt of payment by the Petitioner, this proceeding is DISMISSED. 

stribution~ 

Aug st F. Cetti 

Administrative Law Judge 

Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department 

of Laboru 1585 Federal Office Building, 1961 Stout Street, 

Denveru CO 80294 (Certified Mail) 

Carl E. Kingston, Esq., C.W. MINING COMPANY, 53 West Angelo 

Avenue, Salt Lake City, UT 84115 (Certified Mail) 

sh 

400 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

fEB 2 51992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF CLAYTON LAWSON, 

WENDELL SLUSHER, and BILLY 

RAY HENRY, 

Complainants 

v. 

CUMBERLAND VALLEY CONTRACTORS, 

Respondent 

. . 

- . -- . 

DISCRIMINATION PROCEEDING 

Docket No. KENT 91-901-D 

CV No. 5 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a complaint of alleged discrimimination filed by the Secretary of Labor on May 15, 1991, against 

the respondent pursuant to section 105(c) (2) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. 815(c) (2). The 

complaint was filed on behalf of three former miner employees of 

the respondent (Clayton Lawson, Wendell Slusher, and Billy Ray 

Henry), and it alleges that on or about January 22, 1990, the 

three named complainants 11were discriminated against and 

discharged by the respondent because they had prior to this date, 

complained about unsafe practices which violated provisions of 

the roof control plan". The respondent filed an answer admitting 

that the miners were discharged, but denying that it 

scriminated against them. 

The case was scheduled for hearing in Middlesboro, Kentucky 

on January 22, 1992. However, the hearing was continued after 

the part advised me that they agreed to settle the matter. 

They have now filed their joint settlement proposal pursuant to 

Commission Rule 30, 29 C.F.R. § 2700.30, seeking approval of the 

proposed settlement. 

Discussion 

The parties and the three miner complainants have now agreed 

to the resolution of all matters set forth in the complaint and 

have settled the matter. The terms of the settlement agreement 

are set forth in an agreement executed by counsel for the 

Secretary, counsel for the respondent, and the three miner 

401 
complainants. All of the parties, including the miner 

complainants, have signed the agreement and they all agree that 

the settlement terms are fair and proper. 

Conclusion 

After careful review and consideration of the settlement 

terms and conditions I find that they reflect a reasonable 

resolution of the complaint and that the proposed settlement is 

in the public interest. Since it is apparent that all parties 

are in accord with the agreement for the settlement disposition 

of the complaint, I see no reason why it should not be approved. 

ORDER 

The proposed settlement IS APPROVED. The parties ARE 

ORDERED AND DIRECTED to forthwith comply with all the terms of 

the agreement. Upon compliance, this matter is dismissed with 

prejudice. 

~~ffp- Administrative Law Judge 

Distribution: 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Lloyd R. Edens, Esq., Cline & Edens, P.O. Drawer 2220, 205 N. 

20th street 1 Middlesboro, KY 40965 (Certified Mail) 

/ml 

402 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

S & L COAL COMPANY, 

Respondent 

FEB 211992 

CIVIL PENALTY PROCEEDING 

Master Docket No. 91-1 

Docket No. KENT 91-1085 

A.C. No. 15-16122-035370 

Lucky Star No. 1 Mine 

ORDER DENYING MOTION TO DISMISS 

On February 10, 1992, Respondent S & L Coal Company (S & L} 

filed a Motion to Dismiss this proceeding because the Secretary's 

Petition for Assessment of Civil Penalty was not timely filed. 

The Secretary filed an opposition to the motion on February 19, 

1992. 

I 

The one citation involved in this proceeding was issued to 

s & L on April 4, 1991. After a proposed penalty assessment was 

issued, S & L returned its Notice of Contest and Request for 

Hearing which was received by MSHA on June 28, 1991. On 

August 19, 1991, the Secretary mailed her Petition for Assessment 

of civil Penalty which was received by the Commission on 

August 21, 1991. The Secretary did not seek an extension of time 

for filing her penalty proposal, nor did she file an "instanter" 

(sic) motion to accept late ling. S. & L filed its answer on 

September 16, 1991 (received by the Commission September 20, 

1991). 

II 

Sect.ion 105(d) of the Act requires the Secretary, when a 

timely notice of contest filed, to "immediately advise the 

Commission of such notification, and the Commission shall afford 

an opportunity for a hearing .... " Commission Rule 27, 

29 C.F.R. § 2700.27, requires the Secretary to file a proposal 

for a penalty "within 45 days of receipt of a timely notice of 

contest .... " The Commission has stated that "[i]n essence, 

Rule 27 implements the meaning of 'immediately' in section 

105(d)." Salt Lake county Road Department, 3 FMSHRC 1714, 1715 

(1981). 

Salt Lake set out a two-fold test for deciding whether a 

late filed penalty case is subject to the "drastic remedy of 

dismissal": Has the Secretary shown adequate cause for the 

delay, and, if so, did the delay prejudice Respondent? 

403 
at page 717; See also Medicine Bow Coal Company, 4 FMSHRC 882 

(1982). Salt Lake involved a 2-month delay; Medicine Bow, a 

15 day delay. Dismissal was denied in both cases. The 

Commission held that adequate cause for the delay was 

established, but prejudice was not shown. See also Secretary v. 

M. Jamieson Company, 12 FMSHRC 901 (ALJ); Secretary v. Swindall, 

13 FMSHRC 310 (ALJ) (1991). Cases in which motions to dismiss 

were granted include Secretary v. Washington Construction 

Company, 4 FMSHRC 1807 (ALJ) (1982) (delay of 1-1/2 years and 

2 years), and Secretary v. Lawrence Ready Mix Concrete Corp., 

6 FMSHRC 246 (ALJ) (1984) (delay of 1-1/2 years). In two cases 

involving River Cement Company, 8 FMSHRC 1599 and 1602 (ALJ) 

{1986), the Secretary's "justification" for late filing was 

ua inadvertence" and "a change in policy" of the civil penal ties 

processing unit. Neither was found to constitute adequate cause 

for delays of 7 days and 23 days respectively. 

III 

on April 4, 1991, the Secretary issued some 4,700 citations 

to 500 mine operators covering 850 mines alleging violations of 

30 C.F.R. § 70.209(b) and 71.209(b). Approximately 4,000 notices 

of contest were filed with the Commission between April and July, 

1991. The Secretary states in her opposition that approximately 

800 civil penalty assessments were filed in related cases during 

uia two month time period" when the late filing occurred in this 

case. I conclude that the extraordinary volume of cases 

processed by the Secretary in this short period of time 

constitutes adequate cause for her late filing in this case. 

S & L asserts that it was prejudiced by being denied the 

Jpportunity to participate in the depositions held prior to 

~ctober 21, 1991, and that the delay was inherently prejudicial 

·:o s & Lus preparation of a proper defense. The Secretaryis 

opposition states that no depositions were taken in these cases 

prior to October, 1991. She notes that S & L's counsel entered 

an appearance for a different operator in these cases on July 11, 

~991. S & L has not stated how the delay hindered its 

preparation of a proper defense. I conclude that Respondent has 

failed to show that it was prejudiced by the Secretary 1 s delay in 

filing her petition for the assessment of penalties with the 

Commission. 

ORDER 

Accordingly, the Motion to Dismiss this proceeding is 

DENIED. 

/7 -; . " ' . . f :/i' .. .· / , . ;'.: • /(L-V•AI_ ,) /.:f/f:__ { ?_,1.6!_. ~ re, .. (_, J James A. Broderick 

w Administrative Law Judge 

404 
FEDERAL. MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CNB COAL COMPANY, INC., 

Respondent 

FEB 211992 

CIVIL PENALTY PROCEEDING 

Master Docket No. 91-1 

Docket No. KENT 91-1087 

A.C. No. 15-16122-035320 

No. 1 Mine 

ORDER DENYING MOTION TO DISMISS 

On February 10, 1992, Respondent CNB Coal Company, Inc., 

(CNB) filed a Motion to Dismissthisproceeding because the 

Secretary's Petition for Assessment of civil Penalty was not 

timely filed. The Secretary filed an opposition to the motion on 

February 19, 1992. 

I 

The two citations involved in this proceeding were issued to 

CNB on April 4, 1991. After a proposed penalty assessment was 

issued, CNB returned its Notice of Contest and Request for 

Hearing which was received by MSHA on June 28 1 1991. On August 

19 1 1991, the Secretary mailed her Petition for Assessment of 

Civil Penalty which was received by the Commission on August 21, 

1991" The Secretary did not seek an extension of time for filing 

her penalty proposal, nor did she file an "instanter" 

motion to accept late filing. CNB filed its answer on September 

16, 1991 (received by the Commission September 20, 1991). 

II 

Section 105(d) of the Act requires the Secretary, when a 

timely notice of contest is filed, to 11 immediately advise the 

Commission of such notification, and the Commission shall afford 

an opportunity for a hearing .... 11 Commission Rule 27 1 29 C.F.Ro 

§ 2700.27, requires the Secretary to file a proposal for a 

penalty 01wi thin 4 5 days of receipt of a timely notice of 

contest .... 00 The Commission has stated that 11 [ i] n essence 1 

Rule 27 implements the meaning of 'immediately' in section 

105(d) .n Salt Lake County Road Department, 3 FMSHRC 1714, 1715 

( 1981) 0 

Salt Lake set out a two-fold test for deciding whether a 

late filed penalty case is subject to the "drastic remedy of 

dismissal": Has the Secretary shown adequate cause for the delay 1 

and, if so, did the delay prejudice Respondent? Salt Lake at 

page 717; See also Medicine Bow Coal Company, 4 FMSHRC 882 

405 
(1982). Salt Lake involved a 2-month delay; Medicine Bow, a 15 

day delay. Dismissal was denied in both cases. The Commission 

held that adequate cause for the delay was established, but 

prejudice was not shown. See also Secretary v. M. Jamieson 

Company, 12 FMSHRC 901 {ALJ); Secretary v. Swindall, 13 FMSHRC 

310 (ALJ) (1991). cases in which motions to dismiss were granted 

include Secretary v. Washington Construction Company, 4 FMSHRC 

1807 {ALJ) (1982) (delay of 1-1/2 years and 2 years), and 

Secretary v. Lawrence Ready Mix Concrete Corp., 6 FMSHRC 246 

(ALJ) (1984) (delay of 1-1/2 years). In two cases involving 

River Cement Company, 8 FMSHRC-1599 and 1602 (ALJ) (1986), the 

Secretary's "justification" for late filing was "inadvertence" 

and 11 a change in policy" of the civil penalties processing unit. 

Neither was found to constitute adequate cause for delays of 7 

days and 23 days respectively. 

III 

On April 4, 1991, the Secretary issued some 4,700 citations 

to 500 mine operators covering 850 mines alleging violations of 

30 C.F.R. § 70.209(b) and 71.209(b). Approximately 4,000 notices 

of contest were filed with the Commission between April and July, 

19910 The Secretary states in her opposition that approximately 

800 1 penalty assessments were filed in related cases during 

"a two month time period" when the late filing occurred in this 

case. I conclude that the extraordinary volume of cases 

processed by the Secretary in this short period of time 

constitutes adequate cause for her late filing in this case. 

CNB asserts that it was prejudiced by being denied the 

opportunity to participate in the depositions held prior to 

October 21v 1991, and that the delay was inherently prejudicial 

to CNBus preparation of a proper defense. The Secretary's 

opposition states that no depositions were taken in these cases 

prior to October, 1991. She notes that CNB's counsel entered an 

appearance for a different operator in these cases on July 11, 

1991" CNB has not stated how the delay hindered its preparation 

of a proper defense. I conclude that Respondent has failed to 

show that was prejudiced by the Secretary's delay in ing 

her petition for the assessment of penalties with the commission. 

ORDER 

Accordingly, the Motion to Dismiss this proceeding is 

DENIED" 

clM-~ .~l!J vvdt:Ari ~~ James A. Broderick 

Administrative Law Judge 

406 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 211992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MANALAPAN MINING COMPANY, INC., 

Respondent 

. . 

.. 

. 

CIVIL PENALTY PROCEEDINGS 

Master Docket No. 91-1 

Docket No. KENT 91-1129 

A.C. No. 15-05423-036640 

No. 1 Mine 

Docket No. KENT 91-1130 

A~C. No. 15-14395-035910 

No. 4 Mine 

ORDER DENYING MOTIONS TO DISMISS 

On February 10, 1992, Respondent Manalapan Mining Company, 

Inc., (Manalapan) filed Motions to Dismiss in the above 

proceedings because the Secretary's Petitions for Assessment of 

Civil Penalty were not timely filed. The Secretary filed an 

opposition to the motions on February 19, 1992. 

I 

The three citations involved in these proceedings were 

issued to Manalapan on April 4, 1991. After proposed penalty 

assessments were issued, Manalapan returned its Notice of Contest 

and Request for Hearing which was received by MS.HA on July 1, 

1991. on October 18, 1991, the Secretary mailed her Petitions 

for Assessment of Civil Penalty which were received by the 

Commission on October 21, 1991. The Secretary did not seek an 

extension of time for filing her penalty proposal, nor did she 

file an °instanter 11 (sic) motion to accept late filing. 

Manalapan filed its answers on October 24, 1991 (received by the 

Commission October 31, 1991). 

II 

Section 105(d) of the Act requires the Secretary, when a 

timely notice of contest is filed, to "immediately advise the 

Commission of such notification, and the Commission shall afford 

an opportunity for a hearing ••.. " Commission Rule 27, 29 C.F.R. 

§ 2700.27, requires the Secretary to file a proposal for a 

penalty "within 45 days of receipt of a timely notice of 

contest ••.. " The Commission has stated that "[i]n essence, 

Rule 27 implements the meaning of 'immediately' in section 

407 
105(d)." Salt Lake county Road Department, 3 FMSHRC 1714, 1715 

(1981). 

Salt Lake set out a two-fold test for deciding whether a 

late filed penalty case is subject to the "drastic remedy of 

dismissal": Has the Secretary shown adequate cause for the delay, 

and, if so, did the delay prejudice Respondent? Salt Lake at 

page 717; See also Medicine Bow Coal Company, 4 FMSHRC 882 

(1982). Salt Lake involved a 2-month delay; Medicine Bow, a 15 

day delay. Dismissal was de~ied in both cases. The Commission 

held that adequate cause for the delay was established, but 

prejudice was not shown. See also Secretary v. M. Jamieson 

Company, 12 FMSHRC 901 (ALJ); Secretary v. Swindall, 13 FMSHRC 

310 (ALJ) (1991). Cases in which motions to dismiss were granted 

include Secretary v. Washington Construction Company, 4 FMSHRC 

1807 (ALJ) (1982) (delay of 1-1/2 years and 2 years), and 

v. Lawrence Ready Mix Concrete Corp., 6 FMSHRC 246 

(ALJ) (1984) (delay of 1-1/2 years). In two cases involving 

River Cement Company, 8 FMSHRC 1599 and 1602 (ALJ) (1986), the 

Secretary's "justification" for late filing was "inadvertence" 

and "a change in policy" of the civil penalties processing unit. 

Neither was found to constitute adequate cause for delays of 7 

days and 23 days respectively. 

III 

On April 4, 1991, the Secretary issued some 4,700 citations 

to 500 mine operators covering 850 mines alleging violations of 

30 C.F.R. § 70.209(b) and 71.209(b). Approximately 4,000 notices 

of contest were filed with the Commission between April and July, 

1991. The Secretary states in her opposition that approximately 

800 civil penalty assessments were filed in related cases during 00 a two month time period" when the late filing occurred in this 

caseo I conclude that the extraordinary volume of cases 

processed by the Secretary in this short period of time 

constitutes adequate cause for her late filing in this case. 

Manalapan asserts that it was prejudiced by being denied the 

opportunity to participate in the depositions held prior to 

October 21, 1991, and that the delay was inherently prejudicial 

to Manalapan's preparation of a proper defense. The Secretary's 

opposition states that no depositions were taken in these cases 

prior to October, 1991. She notes that Manalapan's counsel 

entered an appearance in these cases on July 11, 1991. Manalapan 

has not stated how the delay hindered its preparation of a proper 

defense. I conclude that Respondent has failed to show that it 

was prejudiced by the Secretary's delay in filing her petitions 

for the assessment of penalties with the Commission. 

408 
ORDER 

Accordingly, the Motions to Dismiss this proceeding are 

DENIED. 

~~M~U James A. Broderick 

Administrative Law Judge 

Distribution: 

Douglas N. White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

suite 400 Arlington, VA 22203 (Certified Mail) 

Susan c. Lawson, Esq., Forester, Buttermore, Turner & Lawson, 

P.S.c., Forester Building-First Street, P.O. Box 935, Harlan, KY 

40831-0935 (Certified Mail) 

Regular Mail to all others 

/fb 

409 
IN RE: 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th. FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 2 7 199'2 

Master Docket No. 91-1 

CONTESTS OF RESPIRABLE 

SAMPLE ALTERATION CITATIONS 

ORDER RECONSIDERING ORDER DENYING 

MOTION FOR PROTECTIVE ORDER 

on January 17, 1992, I issued an order granting the 

Secretary's motion for a protective order to prohibit the 

deposition of Assistant Secretary William J. Tattersall, and 

denying the motion for a protective order to prohibit the 

deposition of former Administrator for Coal Mine Safety and Health 

Jerry L. Spicer. 

On February 7, 1992, the Secretary filed a motion for 

reconsideration of the above order insofar as it denied the motion 

for a protective order barring the deposition of Mr. Spicer. The 

motion attached an affidavit of Administrator Spicer and portions 

of a transcript of deposition testimony of Edward C. Hugler taken 

on January 16, 1992. Contestants filed an opposition to the motion 

on February 19, 1992. The Secretary filed a reply to the 

opposition on February 25, 1992. The affidavit and the deposition 

testimony attached to the motion present additional relevant 

material in the light of which I reconsider my prior order. 

I 

To be asked to testify in a proceeding such as the one before 

me hardly constitutes harassment or annoyance, as the Secretary 1 s 

motion impl This is a very important case for the Government 

and the coal mining community, miners and managers. Prima facie, 

any person, in Government or industry, who has relevant knowledge 

may be required to testify. As my order stated, however, the 

Federal Courts have . held that high level executive department 

officials may not be required to give oral testimony except in 

extraordinary circumstances. Simplex Time Recorder Co. v. 

Secretary of Labor, 766 F.2d 575 (D.C. Cir. 1985). The courts 

have not drawn a line separating high level officials from low 

level officials, nor has the Secretary suggested one, but it is 

clear that elected officials, Federal and State, are high level. 

Cabinet officers and other Presidential appointees are 

presumptively high level. Below that level the picture is not as 

clear. What is clear is that the extraordinary circumstances 

required to be shown to justify the deposition of a cabinet officer 

410 
or sub-cabinet officer are qualitatively different from those 

needed to depose a mid-level bureaucrat. 

II 

The rationale for protecting high level officials from 

compulsory testimony is, I think, two fold: First, the 

independence of the executive branch and the insulation of the 

actions and decisions of top Government officials from judicial 

(including administrative-j,udicial) inquiry. United states v. 

Morgan, 313 U.S. 409(1941); Peoples v. United States Department of 

Agriculture, 427 F.2d 561 (D.C. Cir 1970). Second, the avoidance 

of the disturbance that would result to the Government's primary 

task if officials were required to take time to give oral 

testimony. Community Fed. Sav. & Loan v. Fed. Home Loan Bank Bd., 

96 F.R.D. 619 (D.C. 1983). 

I mean no denigration of the position of the Coal Mine 

Administrator when I note that he is a lower level official than an 

Assistant Secretary, a Presidential appointee. To protect the 

latter from being required to testify is to recognize the qualified 

independence of the executive branch and incidentally to avoid the 

resultant disruption of Governmental functions. The 

Administrator's position is different: the most important reason 

to protect him from being required to testify is to avoid removing 

him from his critical official tasks, and thus interfering with 

Government business. As my order pointed out, because Mr. Spicer 

has retired, this reason no longer exists. Taking Mr. Spicer's 

deposition will not disrupt the Government 1 s functions in the 

least. Questions which may impinge upon the Government's 

deliberative process privilege are, of course, subject to 

objection, which may be dealt with as any other objection at a 

deposition" 

III 

The Secretary argues that the testimony of Edward Hugler 

provides "an alternate source of the information Contestants 

propose to seek from Administrator Spicer". She states that the 

deposition shows that Spicer has no knowledge not also possessed by 

Bugler. Contestants assert that, on the contrary, the deposition 

shows that Spicer may have relevant knowledge that Hugler does not. 

In deciding this motion, I need only conclude that Spicer may have 

relevant information which was not available from Hugler. I am not 

in a position to analyze Hugler's deposition, only part of which is 

available to me, or to anticipate potential questions which may be 

asked of Spicer, but I conclude that the record before me shows 

that he may have such information. On reconsideration, therefore, 

I determine that the protective order to prohibit the testimony of 

former Administrator Spicer should be denied. 

I do not, of course, by this order mean to indicate how I may 

411 
rule on any question of relevancy or privilege that may be raised 

at Mr. Spicer's deposition. 

ORDER 

On reconsideration of my order of January 

Secretary's motion for a protective order to 

deposition of Administrator Spicer is DENIED. 

,(f(IMl£g /~8:0~ 

17 I 1992 I 

prohibit 

,J James A. Broderick 

Administrative Law Judge 

Distribution: 

the 

the 

Douglas White, Esq., Office of the Solicitor, U. S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Timothy Biddle, Esq., Thomas c. Means, Esq., J. Michael Klise, 

Esq., Crowell and Moring, 1001 Pennsylvania Avenue, N.W., 

Washington, D.C. 20004 (Certified Mail) 

R. Henry Moore, Esq., 

Floor, Pittsburgh, PA 

Buchanan Ingersoll, 600 Grant Street, 58th 

15219 (Certified Mail) 

Laura E. Beverage, Esq., Henry Chajet, Esq., Jackson & Kelly, P. o. 

Box 553, Charleston, WV 25322 (Certified Mail) 

Regular Ma to all others. 

/fas 

412