SEPTEMBER 

COMMISSION DECISIONS 

09-15-86 Peabody Coal Company 

09-15-86 ·M. M. Sundt Construction Co. 

09-22-86 U.S. Steel Mining Co., Inc. 

09-25-86 U.'S. Steel Mining Co., Inc. 

09-25-86 Sec. Labor for Richard .Truex v. 

Consolidation Coal Company 

09-26-86 Local 1609, UMWA v. Greenwich Collieries 

09-26-86 Local 2274, UMWA v. Clinchfield Coal Co. 

09-26-86 Local 1889, UMWA v. Westmoreland Coal Co. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

09-09-86 R & S Coal Company 

09-09-86 Ted Dalton et al. v. Peabody Coal Co. 

09-09-86 Emery Mining Corporation 

09-09-86 Martha Perando v. Mettiki Coal Corp. 

09-10-86 Sec. Labor for Ronnie Beavers, et al. 

v. Kitt Energy Corporation & UMWA 

09-11-86 Nelson Trucking 

09-11-86 Thomas Martinez v. Tower Resources, Inc. 

09-15-86 Fife Rock Products Co., Inc. 

09-15-86 Thunder Basin Coal Company 

09-15-86 Thunder Basin Coal Company 

09-15-86 Emery Mining Corporation 

09-18-86 Brenda Faye Coal Sales Co., Inc. 

09-19-86 John Hatter, Jr., v. Franklin Coal Co. 

09-19-86 Yeaney, Shields, Brick, Partners 

09-19-86 Greenwich Collieries 

09-19-86 G & G Coal Company, Inc. 

09-19-86 Blue Circle Incorporated 

09-23-86 Mitch Coal Company, Inc. 

09-23-86 Sec. Labor for Dennis Jones v. Southern 

Ohio Coal Company 

09-25-86 Donald E. Runyon v. Big Hill Coal Co. 

09-25-86 Consolidation Coal Company 

09-25-86 Atlantic Cement Co., Inc. 

09-26-86 Victor L. Taylor v. Phoenix Resources Inc. 

09-30-86 TAC & C Energy, Inc. 

09-30-86 Rivco Dredging Corporation 

09-30-86 Freeman United Coal Mining Co. 

09-30-86 Stanford Mining Company 

09-30-86 Brubaker-Mann Incorporated 

09,...30-86 Brub.aker-Mann Incorporated 

09~30-86 Bruhaker-'Mann Incorporated 

09-30-86 Brubaker-Mann Incorporated 

09-30-86 Brubaker-Mann Incorporated 

09-30-86 Raven Hocking Coal Corp. 

09-30-86 Consolidation Coal Company 

LAKE 83-73 

CENT 86-6-M 

WEVA 83-82 

PENN 82-335 

WEVA 85-151-D 

Pg. 1265 

Pg. 1269 

Pg. 1274 

Pg. 1284 

Pg. 1293 

PENN 84-158-C Pg. 1302 

VA 83-55-C Pg. 1310 

i.JEVA 81-256-C Pg. 1317 

CENT 86-49 

KENT 86-11-C 

WEST 83-6-R 

YORK 85-12-D 

WEVA 85-73-D 

LAKE 85-102-M 

WEST 86-3-D 

WEST 85-141-M 

WEST 86-26 

WEST 86-34 

WEST 86-106-R 

KENT 85-112 

PENN 85-290-D 

PENN 85-299 

PENN 85-305 

SE 86-36 

SE 86-52-M 

KENT 86-98 

WEVA 85-299-D 

KENT 86-58-D 

WEVA 86-249-R 

YORK 86-1-M 

WEVA 86-266-D 

KENT 85-101 

KENT 86-111 

LAKE 86-27 

PENN 85-288 

WEST 84-103-M 

WEST 85-177-M 

WEST 86-82-M 

WEST 86-94-M 

WEST 84-96-M 

WEVA 85-201 

WEVA 86-61-R 

Pg. 1333 

Pg. 1338 

Pg. 1339 

Pg. 1341 

Pg. 1342 

Pg. 1357 

Pg. 1361 

Pg. 1362 

Pg. 1364 

Pg. 1366 

Pg. 1368 

Pg. 1370 

Pg. 1374 

Pg. 1388 

Pg. 1390 

Pg. 1424 

Pg. 1429 

Pg. 1431 

Pg. 1432 

Pg. 1441 

Pg. 1447 

Pg. 1450 

Pg. 1451 

Pg. 1452 

Pg. 1457 

Pg. 1458 

Pg. 1460 

Pg. 1462 

Pg. 1470 

Pg. 1473 

Pg. 1482 

Pg. 1487 

Pg. 1496 

pg. 1497 

SEPTEMBER 

The .following cases were granted for review during the month of September: 

Secretary of Labor v. Quinland Coals, Inc., Docket No. WEVA 85-169. 

(Judge Fauver, August 6, ,1986) 

Secretary of Labor v. Peabody Coal Company, Docket No. LAKE 83-73. 

(Judge Fauver, August 12·, 1986 Settlement) 

Secretary of Labor v. M. M. Sundt Construction Co., Docket No •. CENT 86-6-M. 

(Judge Morris, July 11, 1986 Default) 

Emery Mining Company v. Secretary of Labor, Docket Nos. WEST 82-126-R, 

WEST 86-131-R, WEST 86-140-R, WEST 86-141-R. (Judge Morris, August 7, 1986) 

The following case was denied review during the month of September: 

Secretary of Labor v. Brow'n Brothers Sand Co., Docket No. SE 86-12-M. 

(Judge Kennedy, August 21, 1986) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PEABODY COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 15, 1986 

Docket No. LAKE 83-73 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

This matter comes before us as a result of Peabody Coal Company's 

response to the Secretary of Labor's Motion for Approval of Settlement. 

The Response was submitted to the presiding Commission Administrative 

Law Judge William Fauver after he issued his. Decision Approving Settlement. For the following reasons, we vacate the order approving settlement 

and remand. 

In this civil penalty proceeding arising under the Federal Mine 

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

Act"), the Secretary alleged two violations by Peabody of 3.0 C.F .R. § 

75 .• 200, the mandatory roof control standard for underground coal mines. 

Following the filing of the Secretary's penalty proposal and Peabody's 

contest of the proposal, the matter was assigned to Judge Fauver. 

Subsequently, the Secretary moved for and received numerous continuances 

on the grounds that there was pending against Peabody a criminal action 

brought under section llO(d) of the Mine Act, 30 U.S.C. § 820(d), and 

based upon incidents involving the alleged violations in this civil 

penalty proceeding. 

On June 12, 1986, the Secretary advised Judge Fauver that the 

criminal case had been resolved by Peabody entering a guilty plea to two 

violations of section llO(d). The Secretary stated that the parties had 

agreed to settle the subject civil penalty proceeding. 

1265 
On August 11, 1986, counsel for the Secretary filed with the judge 

his Motion For Approval of Settlement. Although counsel for Peabody did 

not formally join in or sign the motion, the motion stated that counsel 

for Peabody "authorized ••• the attorney for ••• [the Secretary] to file 

[the motion]." The motion recited the facts pertaining to Peabody's 

guilty plea in the criminal proceeding. The motion also asserted facts 

relating to the alleged violations in the civil penalty proceeding and 

to the statutory civil penalty criteria. Finally, the motion specified 

civil penalties deemed appropriate for the violations. Under the Commission's procedural rules Peabody's response, if any, to the Secretary's 

motion was due by August 23, 1986. 29 C.F.R § 2700.8 and 2700.lO(b). 

On August 12, 1986, the judge approved t~e settlement and dismissed 

the civil penalty proceeding. On August 20, 1986, counsel for Peabody 

submitted to the judge a response to the Secretary's motion. In the 

response counsel for Peabody took issue with portions of the Secretary's 

motion. Counsel asserted that the Secretary's motion referenced facts 

that had been stricken from the record of the criminal proceedings and 

counsel objected to language in the Secretary's motion be~ring upon the 

gravity of the alleged violations and upon Peabody's negligence. Counsel 

stated, however, that aside from these objections, Peabody agreed with 

and adopted the Secretary's motion for approval of settlement. Counsel 

requested that the judge "approve the settlement ••• and make this Response 

and the objections herein. a part of the record in this case." 

Although Peabody's response was directed to Judge Fauver his jurisdiction in the case had terminated upon issuance of his decision approving 

the settlement. 29 C.F.R. § 2700.65(c). Under the Mine Act and the 

Commission's procedural rules, once a judge's decision has issued, 

relief from the decision may be sought by filing with the Commission a 

petition for discretionary review within 30 days of the decision. 30 

U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). Although Peabody's 

response to the Secretary's motion is not in the form of a petition for 

discretionary review, we will treat the response as an implied request 

for relief and remand the matter to the judge. 

"Settlement of contested issues is an integral part of dispute 

resolution under the Mine Act." Pontiki Coal Corp., 8 FMSHRC 668, 674 

(May 1986). Section llO(k) of the Mine Act provides that no contested 

proposed penalty "shall be compromised, mitigated, or settled except 

with the approval of the Commission." 30 U.S.C. § 820 (k); see also 29 

C.F.R. § 2700.30(a). Approval of a settlement by a Commission administrative law judge must be based upon "principled reasons," Knox County 

Stone Co. Inc., 3 FMSHRC 2478, 2480 (November 1981), including consideration of the reasons for the proposed settlement and a weighing of the 

statutory penalty criteria. Davis Coal Co., 2 FMSHRC 619 (March 1980). 

Equally important, the record must reflect and the Commission must be 

assured that a motion for settlement, in fact, represents a genuine 

agreement between the parties, a true meeting of the minds as to its 

provisions. 

1266 
Here, Peabody's response raises questions regarding the parties' 

agreement as to the statutory penalty criteria of gravity and negligence. 

Despite Peabody's stated acquiescence in the ultimate approval of the 

Secretary's settlement motion, it is clear that there is some disagreement 

between the parties regarding the precise terms upon which the settlement 

is acceptable to each. Because Peabody was not a signatory to the 

"agreement" it now disputes in part, further proceedings are necessary. 

The questions raised by Peabody's response must be considered in the 

first instance by the judge. 

Accordingly, we accept Peabody's response for filing. The judge's 

decision approving settlement is vacated. We remand this matter to be 

judged for consideration of the impact of Peabody's response upon the 

settlement process. 

~ Richard v. Backley, Commissfonr 

L. Clair Nelson, Commissioner 

1267 
Distribution 

Michael A. Kafoury, Esq. 

Peabody Coal Company 

.P.O. Box 373 

St. Louis, Missouri 63166 

J. Philip Smith, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Cormnission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1268 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

M. M. SUNDT CONSTRUCTION 

COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 15, 1986 

Docket No. CENT 86-6-M 

BEFORE: Ford, Chairman; Backley, Doyle, La.stowka, and Nelson, 

Commissioners 

ORDER 

BY THE COMMISSION: 

In this civil penalty proceeding arising under Federal Mine Safety 

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

Administrative Law Judge John J. Morris issued an Order of Dismissal on 

July 11, 1986, finding respondent M.M. Sundt Construction Company ( 11Sundt 11 ) 

in default, dismissing Sundt's contest of the Secretary of Labor's 

proposal for a civil penalty, affirming the two citations in issue, and 

assessing a civil penalty of $40. 8 FMSHRC 1099 (July 1986)(ALJ). 

After the judge's decision was issued, Sundt submitted to the judge a 

"Motion for Reinstatement" requesting the reopening of the proceeding. 

Ultimately, this motion was forwarded to the Commission itself after the 

judge's order had become a final decision of the Commission by operation 

of the statute. For the reasons explained below, we deem Sundt's 

motion to constitute a request for relief from a ftnal Commission decision, 

vacate the judge's dismissal order, and remand for further proceedings. 

The main points of the procedural history of this matter may be 

stated briefly. On December 2, 1985, the Secretary filed with the 

Commission a Complaint Proposing Penalty, based on citations issued by 

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

at Sundt's Arizona crusher operation alleging violations of 30 C.F.R. 

§§ 56.5001 & 56.5050 (1985) (control of exposure to airborne contaminants 

and control of exposure to noise, respectively). Sundt filed an answer 

coritesting both alleged violations, and the case was assigned to Judge 

~orris of the Commission's Office of Administrative Law Judges in Denver, 

Colorado. 

1269 
After scheduling a hearing in this matter for July 24, 1986, the 

judge issued a Prehearing Order on June 6, 1986, requiring the parties 

to file certain documents by June 24, 1986. Sundt did not respond to 

the Prehearing Order and on June.26, 1986, the judge issued an Order to 

Show Cause directing Sundt to demonstrate "good cause," within 10 days, 

for the failure to respond. Sundt again did not respond. On July 11, 

1986, the judge issued the Order of Dismissal, based on Sundt's failure 

to respond to the Prehearing Order and the Order to Show Cause. (As 

noted, the judge found Sundt in default, dismissed its contest, affirmed 

the citations, and assessed a $40 civil penalty.) 

On July 15, 1986, a letter dated July 8, 1986, was received at the 

judge's office. The letter was signed by Brian H. Murphy, Sundt's "Loss 

Control Manager." The letter apologized for Sundt's failure to respond 

to the prehearing order and asserted that Sundt's "records do not indicate 

our company ever receiving that correspondence." The letter belatedly 

requested an extension of time for compliance with the prehearing order. 

By letter dated July 15, 1986, the judge replied that he could not grant 

the requested extension of time because his jurisdiction had terminated 

upon the issuance of his dismissal order on July 11, 1986. 

By"Motion of Reinstatement" dated August 7, 1986, and received in 

the judge's Denver Office on August 11, 1986, Sundt requested a reopening 

of the proceeding. The motion alleged that there had been "a lack of 

communication between MSHA and ourselves for which we would, again, like 

to apologize." By letter da~ed August 19, 1986, the judge again explained 

that his jurisdiction had terminated. He forwarded a copy of the Motion 

for Reinstatement to the Commission's Docket Office in Washington, D.C., 

where it was received on August 21, 1986. 

The judge correctly indicated that his jurisdiction in this matter 

terminated when his dismissal order was issued on July 11, 1986. 29 

C.F.R. § 2700.65(c). Any potential relief available to Sundt lay with 

the Commission in the form of a petition for discretionary review, which 

must be filed with the Commission, not the trial judge, within 30 days 

of a judge's decision. 29 C.F.R. §§ 2700.S(b) and 2700.70(a). Sundt's 

Motion for Reinstatement was submitted improperly to the judge and was 

not filed with the Com~ission until August 21, 1986, one day after the 

judge's decision had become final by operation of law. 30 U.S.C. 

§ 823(d) (1). Under the circumstances, Sundt 1.s Motion for Reinstatement 

must be construed as a request for relief from a final Commission decision. 

29 C.F.R. 2700.l(b) (Federal Rules of Civil Procedure apply in absence 

of applicable Commission rule); Fed. R. Civ. Pro. 60 (Relief From Judgment 

or Order). See generally Harry L. Wadding v. Tunnelton Mining Co., 8 

FMSHRC ~' No. PENN 84-186-D, slip op. at 1 (August 20, 1986). 

Two questions are presented: (1) Whether preliminary relief from a 

final order should be permitted by accepting Sundt's motion as a latefiled petition for discretionary review; and (2) whether the judge's 

default order should stand or Sundt's failure to timely respond to the 

1270 
prehearing and show case orders should be excused and the proceeding on the merits 

reopened. We address the first question with reference to the standards 

set forth in Fed. R. Civ. P. 60(b)(l), which provides: 

On motion and upon such terms as are just, the 

court may relieve a party or his legal representative from a final judgment, order, or 

proceeding for the following reasons: ••• mistake, 

inadvertence, surprise, or excusable neglect •••• 

Sundt has proceeded without the benefit of counsel. Although Sundt's 

motion was not filed with the Commission's Docket Office until the 4lst 

day after the judge's decision, it was submitted to the Commission's 

Denver Office within the required 30 days of the judge's decision. 

Therefore, we will treat the failure to file a timely petition as 

resulting from "mistake, inadvertence, ••• or excusable neglect." 

Accordingly, we accept Sundt's submission as a late-filed petition for 

discretionary review. Cf. Gerald D. Boone v. Rebel Coal Co., 4 FMSHRC 

1232, 1232-33 (July 1982). 

As to the substantive aspects of Sundt's motion, the Commission has 

observed repeatedly that default is a harsh remedy. See, e.g., Easton 

Constr. Co., 3 FMSHRC 314, 315 (February 1981). In genera~if a 

defaulting party can make a showing of adequate or good cause for the 

failure to respond to an order, the failure may be excused and appropriate proceedings on the merits permitted. See Valley Camp Coal Co., 1 

FMSHRC 791, 792 (July 1979) (default for failure to file a timely answer 

vacated upon showing of adequate cause for the failure). In·assessing 

the existence of adequate cause, explanatory factors akin to those 

mentioned above in Fed. R. Civ. P. 60(b)(l) -- mistake, inadvertence, 

surprise, or excusable neglect -- may be relevant. Valley Camp, supra, 1 

FMSHRC at 792 & n. 3. The absence of bad faith on the part of the 

defaulting party is also a relevant concern. Easton, supra. An attempt 

to comply at least partially with the order in question may be a mitigating 

factor as well. See, e.g., Sigler Mining Co., 3 FMSHRC 30 (January 

1981). In one instance where an operator made a colorable showing of a 

failure in the service upon it of the relevant show cause order, the 

Commission vacated a default order and remanded for resolution of 

whether proper service had occurred. Pocahontas Constr. Co., 3 FMSHRC 

1184, 1184-85 (May 1981). 

Sundt's July 8, 1986 letter to the judge and its Motion for Reinstatment, when read together, appear to allege that _Sundt did not receive 

the prehearing order. We have examined the record and are unable to 

determine why Sundt did not receive the prehearing order. The existing 

record makes it difficult to evaluate at this point the merits of Sundt's 

motion, its reasons for delay, its good faith, and the equities involved. 

Accordingly, we are not yet prepared to summarily rule on the adequacy 

of Sundt's proffered reasons for its failure to timely respond. Cf. 

Pocahontas, supra, 3 FMSHRC at 1185. Sundt has raised the possibility 

of defects in service or communication and, as noted, has proceeded 

without counsel. In the interests of justice, Sundt should have the 

opportunity to explain its position to the judge. 

1271 
For the foregoing reasons, the judge's Order of Dismissal is vacated 

and the matter is remanded for proceedings consistent with this order. 

!:./ 

~---..., 

!~~~~Lr Richard V. Backley, Commissioner 

!:_/ Sundt is reminded to serve the opposing party with copies of all its 

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

1272 
Distribution 

Brian H. Murphy 

Sundt Corp. 

4101 E. Irvington Road 

P.O. Box 26685 

Tucson, Arizona 85726 

Jack Ostrander, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

25 Griffin St., Suite 501 

Dallas, Texas 75202 

Administrative Law Judge John Morris 

Federal Mine Safety & Health Review Commission 

333 West Colfax Avenue, Suite 400 

Denver, Colorado 80204 

1273 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 22, 1986 

Docket Nos. WEVA 83-82 

WEVA 83-95 

U.S. STEEL MINING CO., INC. 

BEFORE: Backley, Doyle, Lastowka, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This consolidated proceeding arises under the Federal Mine Safety 

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

and presents the question of whether two-Violations of 30 C.F.R. § 

70.101, the mandatory respirable dust standard when quartz is present, 

were of such nature as could significantly and substantially contribute 

to the cause and effect of a coal mine health hazard. 1/ Following a 

1/ 30 C.F.R. § 70.101 provides: 

Respirable dust standard when quartz is present. When the 

respirable dust in the mine atmosphere of the active workings 

contains more than 5 percent quartz, the operator shall 

continuously maintain the average concentration of respirable dust 

in the mine atmosphere during each shift to which each miner in the 

active workings is exposed at or below a concentration of 

respirable dust, expressed in milligrams per cubic meter of air as 

measured with an approved sampling device and in terms of an 

equivalent concentration determined in accordance with·§ 70.206 

(Approved sampling devices; equivalent concentrations), computed by 

dividing the percent of quartz into the number 10. 

Example: The respirable dust associated with a mechanized 

mining unit or a designated area in a mine co~tains quartz in the 

amount of .20%. Therefore, the average concentration of respirable 

dust in the mine atmosphere associated with that mechanized mining 

unit or designated area shall be continuously maintained at or 

below 0.5 milligrams of respirable dust per cubic meter of air 

(10/20 = 0.5 mg/m3 ). 

1274 
hearing on the merits, former Commission Administrative Law Judge 

Richard C. Steffey concluded that the violations were properly 

designated significant and substantial and assessed civil penalties of 

$125 for each violation. 6 FMSHRC 1071 (April 1984)(ALJ). U.S. Steel 

Mining Co.,.Inc. ("U.S. Steel") petitioned for discretionary review and, 

by order dated June 8, 1984, the Commission granted the petition as it 

related to the two citations charging violations of 30 C.F.R. 

§ 70.101. 2/ For the reasons that follow, we conclude that the judge 

correctly found that the violations were significant and substantial and 

we affirm his findings in this. regard. 

The violations at issue are based upon designated occupation 

sampling results obtained pursuant to 30 C.F.R. § 70.207 from mechanized 

mining units ("MMU") in two different U.S. Steel mines. 3/ Citation No. 

9917507, issued on September 1, 1982, alleged that the average 

concentration of respirable dust in the working environment of the 

designated occupation for MMU 024-0 at the Morton Mine was 1.9 

milligrams per cubic meter of air. At the time, the unit was operating 

under a reduced respirable dust standard of 1.6 mg/m3 based upon a 

previous quartz analysis showing that respirable dust in the mine 

atmosphere contained 6 percent quartz. The citation was terminated when 

five respirable dust samples of the working environment of the 

designated occupation revealed an average respirable dust concentration 

within 1.6 mg/m3 • 

Citation No. 9914583, issued on October 20, 1982, alleged that the 

average concentration of respirable dust in the working environment of 

the designated occupation for MMU 002-0 at the Shawnee Mine was 1.7 

mg/m3 • At the time, that unit was operating under a reduced respirable 

dust standard of 1.4 mg/m3 based upon a previous quartz analysis showing 

that respirable dust in the mine atmosphere contained 7 percent quartz. 

The citation was terminated when five respirable dust samples of the 

working environment of.the designated occupation revealed an average 

respirable dust concentration within 1.4 mg/m3 • 

2/ The Commisission declined to review the judge's decision insofar as 

it related to Docket No. WEVA 82-390-R. Thus, although this docket 

number has been included in previous Commission orders relating to this 

case, our decision concerns only Docket Nos. WEVA 83-82 and WEVA 83-95. 

3/ 30 C.F.R. § 70.207 requires an operator to take valid respirable 

dust samples from the designated occupation in each mechanized mining 

unit on a bimonthly basis. 30 C.F.R. § 70.2(h) in part defines a 

"mechanized mining unit" as "a unit of mining equipment including hand 

loading equipment used for the production of material." On continuous 

miner units, such as those operated by U.S. Steel, the MMU normally 

consists of a continuous mining machine, two shuttle cars, and one or 

two roof bolting machines. Tr. 107. 30 C.F.R. § 70.2(f) defines 

"designated occupation" as "the occupation on a mechanized mining unit 

that has been determined by results of respirable dust samples to have 

the greatest respirable dust concentration." Here, both citations are 

based upon sample results taken from the continuous miner operator 

designated occupation. 

1275 
At the hearing the Secretary presented medical evidence regarding 

the nature of the health hazard created by exposure to silica-bearing 

respirable dust. The medical testimony credited by the judge established 

that silicosis is a pulmonary disease caused by silica-bearing (quartz) 

dust retained by the lungs ·following respiration. 4/ The retained dust 

causes a scarring process, known as fibrosis. If the fibrosis occurs in 

the most distal portions of the lungs, the alveoli, nodes of scar tissue 

develop which compromise the air exchange capacity of the lungs. Damage 

caused by the scarring is irreversible and there is no known treatment 

for the disease. Silicosis can develop into a life-threatening respiratory condition known as progressive massive fibrosis. (Such a condition 

can develop also as the result of coal workers' pneumoconiosis.) Progressive massive fibrosis can develop long after an individual's exposure 

to quartz-bearing dust has ceased. 

A dose-response relationship exists between exposure to quartz-bearing 

dust and the develOpment of silicosis. The more silica dust an individual 

is exposed to, the greater the probability of developing silicosis. 

Based upon the data presently available, however, it is impossible to 

quantify the physiological effect of infrequent, low-level exposures to 

silica-bearing dust. However, it is known that there is, in any event, 

a cumulative dose-response effect from repeated exposures. An increased 

frequency of exposure and/or an increased concentration of dust increases 

the risk of developing silicosis. 

The judge found that the Secretary had proved the violations of 30 

C .• F.R. § 70.101 alleged in the two citations and that the violations 

were significant and substantial. 6 FMSHRC at 1112-16. Concluding that 

the test for a significant and substantial violation enunciated by 

the Commission in Cement Division, National Gypsum Co., 3 FMSHRC 822 

(April 1981), was applicable to violations of health standards as well 

as to violations of safety standards, the judge applied the four-phase 

analysis of the National Gypsum test followed by the Commission in 

Mathies Coal Co., 6 FMSHRC 1 (January 1984). ;?._/ First, he found that 

4/ Quartz is a form of silica described as "A crystallized silicon 

dioxide." Bureau of Mines, U~S. Department of the Interior, Dictionary 

of Mining, Miner~l. and Related Terms 884 (1968). 

5/ In National Gypsum, the Commission stated: 

[A] violation is of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety or 

health hazard if, based upon the particular facts surrounding that 

violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably 

serious nature. 

(footnote cont'd) 

1276 
the Secretary proved violations of a mandatory health standard. 6 FMSHRC 

1113-14. Second, he found that the violations contributed a measure of 

danger to a discrete health hazard because breathing excessive quantities 

of quartz-bearing respirable dust exposes miners to a risk of developing 

silicosis or pneurnoconiosis. 6 FMSHRC at 1114. Third, he determined 

that there was a reasonable likelihood that the violations contributed 

to a hazard that would result in injury. Id. According to the judge, a 

preponderance of the evidence showed that each overexposure to quartzbearing respirable dust adds to the scarring process associated with 

silicosis so as to produce the lesions associated with progressive 

massive fibrosis. Finally, he found that there was a reasonable likelihood that the injury in question would be of a reasonably serious nature. 

6 FMSHRC at 1114-15. The judge found that the very nature of silicosis 

and pneumoconiosis defied specific proof of the exact injury that will 

result from an exposure to respirable dust in excess of the applicable 

standard. However, once overexposure occurs and the scarring process 

begins, each overexposure contributes to the cumulative effects until 

progressive massive fibrosis results. The judge stated that "Then, even 

if the miner stops working in a coal mine, the disease will continue to 

cause increasing inability for the lungs to perform their function of 

purifying the blood and the miner will die prematurely •••• " 6 FMSHRC at 

1115. The judge concluded that the medical testimony at the hearing was 

scientifically based and that it supported a finding that the violations 

were significant and substantial. 

On review, U.S. Steel challenges only the judge's findings that the 

violations were "significant and substantial." U.S. Steel maintains 

that the Secretary failed to establish that there was a reasonable 

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

illness because the Secretary did not ascribe a quantitative risk factor 

to the overexposures. 

Although this case presents the first occasion for us to consider 

whether a violation of 30 C.F.R. § 70.101 is of such nature as could 

contribute significantly and substantially to the cause and effect of a 

mine health hazard, we previously have considered the significant and 

Footnote 5 end. 

3 FMSHRC at 825. 

In Mathies, the Commission stated: 

In order to establish that a violation of a mandatory safety standard 

is significant and substantial under National Gypsum, the Secretary 

••• must prove: (1) the underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard -- that is, a measure of 

danger to safety -- contributed to by the violation; (3) a reasonable 

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

and (4) a reasonable likelihood that the injury in question will be 

of a reasonably serious nature. 

6 FMSHRC at 3-4. (footnote omitted). 

1277 
substantial nature of respirable dust violations under 30 C.F.R. 

§ 70.100 (the general respirable dust standard for underground coal 

mines). In Consolidation Coal Co., 8 FMSHRC 890 (June 1986), appeal 

docketed, No. 86-1403 (D.C. Cir. July 11, 1986), the Commission concluded that the National Gypsum significant and substantial analysis, 

"with certain adaptations appropriate in the context of [an] exposurerelated health standard," is applicable in determining whether a 

violation of 30 C.F.R. § 70.100 is significant and substantial. 8 FMSHRC 

at 891. The Commission there adapted the elements necessary to support 

a significant and substantial safety violation to cases involving violations of mandatory health standards and held that the Secretary must 

prove: 

(1) the underlying violation of a mandatory health 

standard; (2) a discrete health hazard -- a 

measure of danger to health -- contributed to by 

the violation; (3) a reasonable l~kelihood that 

the health hazard contributed to will result in an 

illness; and (4) a reasonable likelihood that the 

illness in question will be of a reasonably 

serious nature. 

Consol, 8 FMSHRC at 897. Consol was decided after U.S. Steel's petition 

for discretionary review had been granted. In light of the decision in 

Consol, the Commission afforded the parties leave to file supplemental 

briefs. The Secretary filed a brief; TJ. S. Steel declined. The Secretary 

argues that the Commission's analysis for determining the significant 

and substantial nature of a violation of 30 C.F.R. § 70.lOO(a) is equally 

a~pli~;e for determining the significant and substantial nature of a 

violatio f 30 C.F.R. § 70.101. We agree. 

In Consol, the Commission noted that the statutory text of the Mine 

Act and its legislative history "reveal[] a clear congressional understanding of the unique nature of exposure-related health hazards of 

respirable dust and the control of those hazards." 8 FMSHRC at 895. 

Central to the Commission's decision was recognition that "prevention of 

pneumoconiosis and other occupational illnesses is a fundamental purpose 

underlying the Mine Act • 11 _!i. (emphasis in original). 

Section 70.101, the respirable dust standard involved in this case, 

is taken directly from section 205 of the Mine Act, 30 U.S.C. § 845, 

which, in turn, was carried over without significant change from the 

1969 Coal Act, 30 U.S.C. § 801 ~seq. (1976) (amended 1977). §./ These 

6/ Section 205 of the Mine Act provides: 

Dust standards in presence of quartz 

In coal mining operations where the concentration of respirable 

dust in the mine atmosphere of any working place contains more than 

5 per centum quartz, the Secretary of Health and Human Services 

shall prescribe an appropriate formula for determining the applicable 

respirable dust standard under this subchapter for such working 

place and the Secretary shall apply such formula in carrying out 

his duties under this chapter. 

30 u.s.c. § 845. 1278 
statutory sections set interim mandatory health standards, which the 

Secretary has adopted. Sec.tion 205 of the Mine Act is a more stringent 

cognate of section 202(b)(2), 30 U.S.C. § 842(b)(2), which requires 

operators to maintain the average concentration of respirable dust in 

the mine atmosphere in active workings at or below 2.0 mg/m3 • In section 

205, however, Congress determined that the increas.ed hazard when more 

than 5 percent quartz is present in respirable dust requires a lower 

level of exposure. 

Silicosis has been recognized for a long time as a disease associated 

with coal miners, and the inhalation of silica-bearing dust has been 

causally linked to the disease. See Coal Mine Health and Safety: Hearings 

Before the Subcommittee on Labor of the Committee on Labor and Public 

Welfare, United States Senate, 9lst Cong., 1st Sess., 764 (1969); Coal 

Mine Health and Safety: Hearings Before the Committee on Education and 

Labor, House of Representative, 9lst Cong., 1st Sess., 119, 309, 310, 

337 (1969). With cognizance of this hazard, section 102(a)(l) of the 

Senate bill which became the 1969 Coal Act required that the respirable 

dust standard be reduced when coal dust contains more than 5 percent 

quartz and that the applicable dust standard "be determined in accordance 

with a formula prescribed by the Surgeon General." 7/ The Senate Committee 

report stated, "Since high quartz content in coal dust ••• presents a 

greater health hazard, the Surgeon General is directed to prescribe the 

formula to be used in arriving at a dust standard for dust containing 

more than 5 percent quartz which offers comparable protection to the 

statutory standards for dust containing 5 percent or less quartz." S. 

Rep. No. 410, 9lst Cong., 1st Sess. 46 (1969) reprinted in Senate Subcommittee on Labor, Committee on Labor and Public Welfare-; 94th Cong., 

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

and Safety Act of 1969, at 172 (1975). It was in complying with this 

requirement of section 205 the 1969 Coal Act, that the Secretary of 

Health, Education, and Welfare prescribed, and the Secretary of the 

Interior adopted, the formula set forth in 30 C.F.R. § 70.101. The 

formula was developed by the National Institute for Occupational Safety 

and Health and was based upon Public Health Service studies evaluating 

the effects of free silica on respiratory health. See 36 Fed. Reg. 4981 

(March 16, 1971); U.S. Steel Mining Co. Inc., 5 FMSHRC 46, 50-51 (January 

1983) (ALJ). 

When Congress delegated to the Secretary of Health, Education, and 

Welfare the authority to prescribe the applicable limit of respirable 

dust when the quartz content exceeds 5 percent, it intended that exposure 

level to be the maximum level allowed to achieve its stated goal of 

7/ A companion bill introduced in the House of Representatives contained 

the same provision but required the Secretary of Health, Education, and 

Welfare to prescribe the formula. The House provision was adopted at 

Conference and carried over, without substantive change, to the Mine Act 

as section 205. Section 205 of the Mine Act was subsequently amended to 

transfer this function to the Secretary of Health and Human Services. 

1279 
preventing disabling respiratory disease. Section 20l(b), 30 U.S.C. § 

84l(b). Further, as stated in Consol, "Congress clearly intended the 

full use of the panoply of the Act's enforcement mechanisms to effectuate 

this Congressional goal, including the designation of a violation as a 

significant and substantial violation." 8 FMSHRC at 897. Against this 

background of Congress' clear intent to prevent respirable diseases 

induced by silica-bearing dust, we next address the four elements of the 

significant and substantial test as set forth in Consol. 

The first element, the existence of the underlying violation, is 

not an issue in this case. The judge found that the violations alleged 

in the citations occurred, and U.S. Steel does not challenge the findings 

of violations. 6 FMSHRC at 1113-14. 

The second element, a measure of danger to health posed by the 

violation, is established also. Here, in mine atmosphere containing 

more than 5 percent quartz, miners were exposed to excessive average 

concentrations of respirable dust. These exposures were at levels 

higher than those that Congress authorized be established to eliminate 

the possibility of miners contracting silica-bearing dust induced diseases. 

In ·Consol we held that any exposure to respirable dust above the applicable 

was deemed to present a discrete health hazard. 8 FMSHRC at 898. 

The legislative and regulatory histories referred to above regarding 

overexposure to respirable dust when quartz is present compel the same 

conclusion. Therefore, we hold that any overexposure .to respirable dust 

based upon designated occupation sampling results giving rise to a 

violation of 30 C.F.R. § 70.101 presents a discrete health hazard. By 

proving the violations at issue in the instant proceeding, the Secretary 

proved a discrete health hazard contributed to by the violations. 

The third element in the fotmula for determining the significant 

and substantial nature of an exposure related health standard concerns 

the reasonable likelihood that the health hazard contributed to will 

result in an illness. In Consol, the Commission recognized the difficulty of predicting whether or when respiratory disease will develop. 

8 FMSHRC at 898. At the same time, the Commission also recognized that 

Congress established the 2.0 mg/m3 respirable dust standard as the best 

available means of preventing disabling respiratory diseases. Id. In 

light of these considerations, the Commission held: 

[G]iven the nature of the health hazard at issue, 

the potentially devasting consequences for affected 

miners, and strong concern expressed by Congress 

for eliminating respiratory illnesses in miners, 

we hold that if the Secretary proves that an 

overexposure to respirable dust in violation of 

section 70.lOO(a), based upon designated occupation 

samples, has occurred, a presumption arises that 

the third element of the· significant and substantial 

1280 
test -- a reasonable likelihood that the health 

hazard contributed to will result in an illness 

has been established. 

Consol, 8 FMSHRC at 899. 

These same considerations are involved in the instant proceeding to 

prove a violation of section 70.101. Indeed, the nature of the health 

hazard posed by excessive concentrations of respirable dust containing 

quartz is in some respects greater than that posed by respirable dust 

without quartz. The fibrosis associated with silica-bearing dust is 

irreversible and may continue to develop after exposure has ended. 

Although the present state of scientific and medical knowledge does not 

make it possible to determine the precise point at which respirable 

diseases induced by silica-bearing dust will develop, it is clear that 

cumulative exposures to silica-bearing dust above the applicable exposure 

limit are an important risk factor. Accordingly, given the nature of 

the health hazards at issue, the potentially devastating consequences to 

affected miners, and the strong concern expressed by Congress for the 

elimination of occupation-related respiratory illnesses in miners, we 

hold that where the Secretary proves an overexposure to respirable dust 

in violation of section 70.101 based upon designated occupation samples, 

a presumption arises that the third element of the significant and 

substantial test -7 a reasonable likelihood that the hazard contributed 

to will result in an illness -- is established. 

The fourth element of the significant and substantial test, a 

reasonable likelihood that the illness in question will be of a reasonably serious nature is not disputed. Congress found overexposure to 

respirable dust containing quartz to be serious enough to require a 

mandatory maximum permissible level of exposure. The judge found that 

each exposure to excessive quantities of silica-bearing respirable dust 

can contribute to the cumulative effects of dust-induced fibrosis and 

lead to an increased inability of the lungs to perform their function of 

aerating the blood and to premature death. 6 FMSHRC at 1115. The 

evidence of record provides substantial support for the judge's findings. 

In Consol the Commission further held that, because analysis of the 

four elements of the significant and substantial test would be essentially 

the same in each instance in which the Secretary proves a violation of 

30 C.F.R. § 70.lOO(a), proof of a violation gives rise to a presumption 

that the violation is significant and substantial. 8 FMSHRC at 899. We 

conclude that a similar presumption is appropriate when the Secretary 

proves a violation of 30 C.F.R. § 70.101. We further hold that, as with 

a violation of section 70.lOO(a), the presumption can be rebutted by the 

operator by establishing that miners in the designated occupation in 

fact were not exposed to the excessive concentration of respirable dust, 

e.g., through the use of personal protective equipment. See 8 FMSHRC at -- - ' -- 899. In the instant proceeding, there is no evidence that the miners 

placed at risk by the subject violations were not exposed to excessive 

levels of silica-bearing respirable dust. 

1281 
Accordingly, we conclude that the administrative law judge's findings 

that U •. S. Steel's violations of the mandatory respirable dust standard 

at issue were of such nature as could contribute significantly and 

substantially to the cause and effect of a mine health hazard are supported 

by substantial evidence of record. 

Therefore, the judge's decision is affirmed. 8/ 

Richard ~~ V. Backley, Commissioner 

~£'c~ 

James A. Las.to7Lt, Commissioner 

~ -~-v L. Clair Nelson, Commissioner ~, 

8/ Chainnan Ford did not participate in the consideration or disposition 

of this matter. 

1282 
Distribution 

Barry F. Wisor, Esq. 

Off ice of the Solicitor 

U.S. Department of Lab.or 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Billy M. Tennant, Esq. 

Louise Q. Symons, Esq. 

U.S. Steer Mining Co., Inc. 

600 Grant Street, Room 1580 

Pittsburgh, Pennsylvania 15230 

1283 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 25, 19.86 

Docket No. PENN 82-335 

U.S. STEEL MINING COMPANY, INC. 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMHISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

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

involves one violation of 30 C.F.R. § 70-:T"O~the mandatory respirable 

dust standard when quartz is present, 1/ and two violations of 30 C.F.R. 

§ 75.503, a mandatory standard requiring that electric face equipment 

];/ 30 C.F.R. § 70.101 provides: 

Respirable dust standard when quartz is present. When the 

respirable dust in the mine atmosphere of the active workings 

contains more than 5 percent quartz, the operator shall continuously 

maintain the average concentration of respirable dust in the mine 

atmosphere during each shift to which each miner in the active 

workings is exposed at or below a concentration of respirable dust, 

expressed in milligrams per cubic meter of air as measured with an 

approved sampling device and in terms of an equivalent concentration 

determined in accordance with 70.206 (Approved sampling devices; 

equivalent concentrations), computed by dividing the percent of 

quartz into the number 10. 

Example: The respirable dust associated with a mechanized 

mining unit or a designated area in a mine contains quartz in the 

amount of 20%. Therefore, the average concentration of respirable 

dust in the mine atmosphere associated with that mechanized mining 

unit or designated area shall be continuously maintained at or 

below 0.5 milligrams of respirable dust per cubic meter of air 

(10/20 = 0.5 mg/m3 ). 

1284 
be maintained in permissible condition. 2/ In citing the violation of 

section 70.101 and one of the violations-of section 75.503, inspectors 

of the Mine Safety and Health Administration ( 11MSHA11 ) found that those 

violations were "significant and substantial" within the meaning of 

section 104(d)(l) of the Mine Act. 3/ 

At a hearing on the merits before Commission Administrative Law 

Judge James A. Broderick, U.S. Steel Mining Company, Inc. ("U.S. Steel'i) 

admitted the violations, but contested the Secretary's assertion that 

two of the violations contributed significantly and substantially to the 

cause and effect of a mine safety or health hazard. Also, U.S. Steel 

contested the civil penalties proposed by the Secretary for each of the 

violations. Judge Broderick determined that the violations occurred and 

that the findings of the significant and substantial nature of the 

3J 30 C.F.R. § 75.503 provides: 

Permissible electrical face equipment; maintenance. The 

operator of each coal mine shall maintain in permissible condition all 

electric face equipment required by §§ 75.500, 75.501, 75.504 to be 

permissible which is taken into or used inby the last open crosscut 

of any such mine. 

3/ Section 104(d)(l) of the Mine Act provides: 

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

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety standard, 

and if he also finds that, while the conditions created by such 

violation do not cause imminent danger, such violation is of 

such nature as could significantly and substantially contribute 

to the cause and effect of a coal or other mine safety or health 

hazard, and if he finds such violation to be caused by unwarrantable failure of such operator to comply with such mandatory health 

or safety standards, he shall include such finding in any citation 

given to the operator under this chapter. If, during the same 

inspection or any subsequent inspection of such mine within 90 days 

after the issuance of such citation, an authorized representative 

of the Secretary finds another violation of any mandatory health or 

safety standard and finds such violation to be also caused by an 

unwarrantable failure of such operator to so comply, he shall 

forthwith issue an order requiring the operator to cause all 

persons in the area affected by such violation, except those 

persons referred to in subsection (c) of this section to be 

withdrawn from, a~d to be prohibited from entering, such area until 

an authorized representative of the Secretary determines that such 

violation has been abated. 

30 U.S.C. § 814(d)(l) (emphasis added). 

1285 
violations were proper. He assessed a civil penalty of $200.00 for the 

respirable dust violation, section 70.101, and penalties of $75.00 and 

$200.00 for the permissibility violations, section 75.503. 

'llle issues before us are whether the judge's findings that the 

violations are significant and substantial are proper and whether substantial evidence supports the judge's penalty assessments. On the 

bases discussed below, we affirm the judge's findings as to the significant and substantial nature of the violations and two of the judge's 

three penalty assessments. Because we find that the judge's negligence 

finding regarding the third violation is not supported by substantial 

evidence, we vacate the judge's penalty assessment for that violation 

and assess a penalty commensurate with the statutory penalty criteria. 

I. 

We first consider the question of whether the violation of section 

70.101 (Citation No. 9901317) is significant and substantial, within the 

purview of the statute. 'llle facts are not in dispute. U.S. Steel owns 

and operates the Maple Creek No. 1 Mine, an underground coal mine located 

in Washington County, Pennsylvania. The citation alleges that the 

average concentration of respirable dust in the working environment of 

the designated occupation on mechanized mining unit 010-0 was 1.8 milligrams per cubic meter of air (mg/m3 ). 4/ At the time, the unit was 

operating under a reduced respirable dust standard of 1.4 mg/m3 based 

upon a previous respirable dust analysis showing that the respirable 

dust in the mine atmosphere contained 7% quartz. The citation was 

terminated when five respirable dust samples of the working environment 

of the continuous miner operator revealed an average respirable dust 

concentration of less than 1.4 mg/m3 • 

In upholding the inspector's finding that the violation was significant and substantial the judge, citing the Commission's decision in 

Cement Division, National Gypsum, 3 FMSHRC 822 (April 1981), concluded 

that the violation was reasonably likely to result in a reasonably 

4/ 30 C.F.R. § 70.207 requires an operator to take valid respirable 

dust samples from the designated occupation in each mechanized mining 

unit on a bimonthly basis. 30 C.F.R. § 70.2(h), in pertinent part, 

defines a "mechanized mining unit" as "[aJ unit of mining equipment including hand loading equipment used for the production of material." 30 

C.F.R. § 70.2(f) defines "designated occupation" as "the occupation on a 

mechanized mining unit that has been determined by results of respirable 

dust samples to have the greatest respirable dust concentration." In 

the case of the subject citation, the designated,occupation was that of 

the continuous mining machine operator. 

1286 
serious illness. 5 FMSHRC at 1336. 5/ The judge found that exposure to 

excessive amounts of respirable dust-with a quartz content in excess of 

5% can contribute to silicosis and to coal workers' pneumoconiosis. 5 

FMSHRC at 1336. The judge stated: 

The quartz content in the dust can be a factor in 

the progression of simple coal workers pneumoconiosis. 

It can also cause silicosis, a progressive, serious 

disease of the lungs resulting from deposition of 

silica in the lung and the body's reaction to it. 

Id. 6/ In summarizing his findings regarding the significant and substantial nature of the violation, the judge stated that although "[a]n 

exposure of 1.8 mg/m3 of respirable dust which contains approximately 

seven percent quartz ••. would not in itself cause silicosis ••• [it] 

would contribute in a substantial way to the risk.of acquiring silicosis." 

5 FMSHRC at 1336. . 

In a recent decision the Commission addressed for the first time 

the question of whether a violation of section 70.101 could significantly 

and substantially contribute to the cause and the effect of a coal mine 

health hazard. U.S. Steel Mining Co., Inc., Docket No. WEVA 83-82, 

etc., 8 FMSHRC (September 22, 1986). There the Commission concluded 

that, in order tO'"S'upport an allegation that a violation of section 

70.101 is significant and substantial, the Secretary must prove: 

(1) the underlying violation of ••• [section 

70.101]; (2) a discrete health hazard -- a measure 

of danger to health -- contributed to by the 

violation; (3) a reasonable likelihood that the 

health hazard contributed to will result i~ an 

illness; and (4) a reasonable likelihood that the 

illness in question will be of a reasonably serious 

nature. 

U.S. Steel, slip op. at 6 (quoting from Consolidation Coal Co., 8 FMSHRC 

890 (June 1986), appeal docketed, No. 86-1403 (D.C. Cir. July 11, 1986)). 

2_/ In National Gypsum, the Commission stated: 

(A] violation is of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety or 

health hazard if, based upon the particular facts surrounding the 

violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or an illness of a reasonably 

serious nature. 

3 FMSHRC at 825. 

!!_/ Quartz is a form of silica described as "A crystallized silicon 

dioxide." Bureau of Mines, U.S. Department of the Interior, Dictionary 

of Mining, Mineral, and Related Terms 884 (1968). 

1287 
We further concluded that because analysis of the four elements of 

the significant and substantial test would be essentially the same in 

each instance when the Secretary proved a violation of section 70.101, 

upon such proof a rebuttable presumption arises that the violation could 

significantly and substantially contribute to the cause and effect of a 

mine health hazard. U.S. Steel, slip op. at 8. We noted that this 

presumption can be rebutted if the operator establishes that the miners 

in the designated occupation were not, in fact, exposed to the.excessive 

concentrations of respirable dust, e.g., through the use of personal 

protective equipment. Id. 

In this proceeding the existence of the underlying violation is 

not at issue because U.S. Steel concedes that it violated section 70.101. 

Further, U.S. Steel offered no evidence that the miners in the cited 

designated occupation were not subject to exposure. We conclude that 

the judge's findings regarding the significant and substantial nature of 

the violation at issue are supported by substantial evidence and are 

consistent with the Commission's decisions in Consol and U.S. Steel, 

supra. Accordingly, the judge's finding that the violation of 30 C.F.R. 

§ 70.101 is "significant and substantial" is affirmed. 

II. 

We next address the issues raised regarding the first violation of 

30 C.F.R. § 75.503 (Citation No. 1249541). This violation concerns a 

conduit on the packing gland of a shuttle car. 7/ During an inspection 

of the mine an MSHA inspector observed a shuttle car on which a conduit 

had pulled out of the packing gland. The shuttle car was transporting 

coal cut by a continuous mining machine and was being "used inby the 

last open crosscut." Section 75.503. The judge found that operation of 

the shuttle car with the defective packing gland violated section 75.503. 

5 FMSHRC at 1337. 

In considering the statutory penalty criteria, the judge found that 

U.S. Steel was negligent, noting the inspector's testimony that it "had 

been cited for the same condition 'quite a few times."' 5 FMSHRC at 

1337. U.S. Steel challerges this finding, arguing that the conduit 

frequently"pulls out of the packing glands during normal operations "no 

matter what the operator does." U.S. Steel asserts that it performed 

required weekly permissibility examinations (30 C.F.R. § 75.512-2) and 

that its failure to discover the instant violation before the MSHA 

inspector did was not the result of its negligence. 

ZI A conduit is described as a "tube ••• for receiving and protecting 

electric wires." Dictionary of Mining and Related Terms 248. A packing 

gland is described as an "explosion-proof entrance for conductors through 

the wall of an explosion-proof enclosure, to provide compressed packing 

completely surrounding the wire or cable •••• " Id. at 787. 

1288 
We conclude that the judge's finding of negligence in connection 

with this violation is supported by substantial evidence. Testimony by 

both the MSHA inspector and U.S. Steel's general maintenance foreman 

indicates that at the mine, conduits frequently pull out of packing 

glands, resulting in electric face equipment being in non-pennissible 

condition. Tr. 267-278; 285-286. Given U.S. Steel's awareness of this 

particular, recurring problem (which it suggests, but does not establish, 

is attributable to a design defect), the assertion that performance of a 

weekly permissibility exam precludes a negligence finding must be rejected. 

Weekly exams are the minimum inspection requirements imposed by 30 

C.F.R. § 75.512-2. In light of U.S. Steel's awareness of this specific 

and recurring permissibility problem, more than the minimum level of 

attention to the packing glands was called for but, insofar as this 

record indicates, was not provided before electric face equipment was 

used in coal production. Given the nature of permissibility violations 

in general and the specific facts of record surrounding this citation, 

the judge's negligence finding is affirmed. §_/ 

III. 

The second violation of 30 C.F.R. § 75.503 (Citation No. 125017) 

concerns a missing bolt on the control compartment of a shuttle car. 

During an inspection of the mine an MSHA inspector observed a shuttle 

car parked near the loading ramp. The car was energized but was not 

then being used; other shuttle cars were being used to load coal. Upon 

examining the car, the inspector observed that a bolt was missing on the 

cover plate of the control compartment. (The control compartment on the 

shuttle car contains electrical contactors. The cover plate of the 

control compartment isolates electrical arcing from the mine atmosphere.) 

The inspector cited U.S. Steel for a violation of 30 C.F.R. § 75.503 and 

found that the violation was "significant and substantial" within the 

meaning of 30 U.S.C. § 814(d)(l). See nn. 2 & 3, supra. 

In upholding the violation, the judge found that the violation was 

properly designated significant and substantial and that U.S. Steel was 

negligent. 5 FMSHRC at 1337. On review, U.S. Steel concedes that the 

violation occurred but argues that the violation was not significant and 

substantial and that there is insufficient evidence of record to support 

the judge's negligence finding. 

We conclude that substantial evidence supports the judge's finding 

that the violation significantly and substantially contributed to the 

cause and effect of a mine safety hazard. The inspector stated that 

with the bolt missing if methane entered the control compartment arcing 

could cause an ignition. An MSHA electrical inspector testified that 

§_/ U.S. Steel's argument that $20.00 is the only appropriate penalty 

for non-significant and substantial violations has previously been 

addressed and rejected. See, e.g., U.S. Steel Mining Co., Inc., 6 

FMSHRC 1148 (May 1984). 

1289 
the purpose of the control panel cover plate is to keep such an ignition 

confined. If methane should enter the compartment and ignite, the cover 

plate prevents the flame and heat of the ignition from reaching the 

outside atmosphere. When a bolt is missing, the integrity of the cover 

plate is weakened and its capacity to contain the explosion is diminished. 

An ignition may escape the compartment and propagate a larger ignition 

and explosion. This testimony by the two inspectors was not refuted by 

U.S. Steel. 

When the citation was issued, the shuttle car was energized. The 

Maple Creek No. 1 Mine liberates more than one million cubic feet of 

methane in a twenty-four hour period. The inspector stated, and the 

assistant mine foremen agreed, that there had been a methane ignition at 

the mine in the year preceding the hearing. We agree with the judge 

that under the particular facts and circu~tances surrounding this 

violation the inspector properly determined that the violation was of a 

significant and substantial nature. 

In assessing U.S. Steel's negligence for penalty purposes, the 

judge stated, without explication, that "the absence of the bolt should 

have been known to [U.S. Steel]" and that "the violation was the result 

of [U.S. Steel's] negligence." 5 FMSHRC at 1337. U.S. Steel argues 

that the record does not establish that it acted negligently in connection with this violation. We agree. The burden of establishing an 

operator's negligence under section llO(i), 30 U.S.C. § 820(i), rests on 

the Secretary. Unlike the permissibility violation discussed hereinabove, nothing in the record pertaining to this violation suggests that 

at the time of the issuance of the citation U.S. Steel knew or should 

have known that the bolt was missing. The shuttle car involved was not 

being operated and had not been used in production during the shift that 

\vas then ongoing. Tr. 330. In response to questions, the MSHA inspector 

indicated that he was unable to determine whether the operator was aware 

of the missing bolt (Tr. 296) and that various possible explanations for 

the missing bolt could include a "set up" of the violation (Tr. 305), a 

"jarring out" during previous use of the shuttle (Tr. 308), or a miner's 

removal of the cover plate and an inadvertent failure to replace this 

bolt. Id. In sum, the inspector revealed that he had no real basis for 

forming-a firm belief as to why the bolt was missing or why U.S. Steel 

should be found negligent. We conclude that although the fact that the 

bolt was missing is sufficient to establish the violation, it does not 

constitute substantial evidence of U.S. Steel's negligence in connection 

with the violation. Accordingly, the judge's finding of negligence is 

vacated and the penalty assessment is reduced from $200 to $100. 

1290 
IV. 

For the foregoing reasons, the decision of the administrative law 

judge is affirmed in part and reversed in part. 9/ 

L. Clair Nelson, Commissioner 

9/ Chairman Ford did not participate in the consideration or disposition 

of this matter. 

1291 
Distribution 

Billy M. Tennant, Esq. 

U.S. Steel Mining Co., Inc. 

600 Grant Street, Room 1580 

Pittsburgh, Pennsylvania 15230 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1292 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF IABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of RICHARD TRUEX 

v. 

CONSOLIDATION COAL COMPANY 

September 25, 1986 

Docket No. WEVA 85-151-D 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This case involves a discrimination complaint brought by the Secretaty 

of Labor on behalf of Richard Truex, pursuant to the Federal Mine Safety 

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

"Act"). The complaint alleges that Consolidation Coal Company ("Consol") 

discriminated against Mr. Truex in violation of section 105(c)(l) of the 

Mine Act.:!_/ The Secretary asserts that Consol violated section 105(c)(l) 

1/ Section 105(c)(l) of the Mine Act provides: 

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 sta.ndard published pursuant to section [101] of this 

[Act] or.because such miner, representative of miners or 

applicant for employment has instituted or caused to be 

instituted any proceeding under or related to this [Act] or 

has testified or is about to testify in any such proceeding, 

or because of the exercise by such miner, representative of 

miners or applicant for employment on behalf of himself or 

others of any statutory right afforded by this [Act]. 

30 U.S.C. § 815(c)(l). 

1293 
by denying Truex the opportunity to participate in a post-inspection 

conference pursuant to section 103(f) of the Act without a loss of 

pay. 2/ The case was submitted to Commission Administrative Law Judge Gary 

Melick on stipulated facts. Judge Melick found that Consol discriminated 

against Truex in violation of section 105(c)(l), and ordered Consol to 

pay Truex back wages with interest for the six and one-half hour period 

that Truex was found to have been unlawfully denied the opportunity to 

work. The judge also assessed Consol a civil penalty of $600 for the 

violation. 7 FMSHRC 1401, 1404 (September 1985)(ALJ). The Commission 

granted Consol's petition for discretionary review. For the reasons 

that follow, we affirm the judge's decision. 

The facts are not in dispute. Truex is a longwall mechanic at 

Consol's Mc'Elroy Mine located in Marshall County, West Virginia; he is a 

member of the United Mine Workers of America ("UMtlA" or 11Union"). At 

the time of the events herein he was a member of the Union safety 

committee at the mine. On August 27, 1984, Department of Labor, Mine 

Safety and Health Administration ("MSHA") Inspector, James Mackey, 

telephoned Consol's mine safety director, Tom Olzer, and informed Olzer 

that he would be at the mine at approximately 9:30 a.m. the next morning 

'lJ Section 103(f) of the Act provides: 

Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by 

his miners shall be given an opportunity to accompany the 

Secretary or his authorized representative during the physical 

inspection of any coal or other mine made pursuant to the 

provisions of subsection (a) of this section, for the purpose 

of aiding such inspection and to participate in pre- or 

post-inspection conferences held at the mine. Where there is 

no authorized miner representative, the Secretary or his 

authorized representative shall consult with a reasonable 

number of miners concerning matters of health and safety in 

such mine. Such representative of miners who is also an 

employee of the operator shall suffer no loss of pay during 

the period of his participation in the inspection made under 

this subsection. To the extent that the Secretary or authorized 

representative of the Secretary determines that more than one 

representative from each party would further aid the inspection, 

he can permit each party to have an equal number of such 

additional representatives. However, only one such representative of miners who is an employee of the operator shall 

be entitled to suffer no loss of pay during the period of 

such participation uader the provisions of this subsection. 

Compliance with this subsection shall not be a jurisdictional 

prerequisite to the enforcement of any provision of this 

[Act]. 

30 u.s.c. § 813(f). 

1294 
to review a hearing conservation plan. Olzer notified Truex, who was 

familiar with the plan, of Inspector Mackey's intentions. Truex then 

told Richard Lipinski, president of the Union local, of Mackey's plans, 

and Lipinski designated Truex as the representative of miners for the 

~eeting with Mackey. 

The next day, August 28, 1984, Truex was scheduled to work the 8:00 

a.m. to 4:00 p.m. shift. At 7:50 a.m., Truex informed Olzer that he was 

the representative of miners for the meeting with Inspector Mackey who 

had not yet arrived at the mine. Olzer told Truex he would have to go 

to work underground with his regular crew. Truex indicated his willingness to work with his regular crew but asked that he be notified when 

the MSHA inspector arrived so that he could attend the meeting. Olzer 

replied that a representative of miners would be notified and given an 

opportunity to attend the meeting with the inspector. It is undisputed 

that had Truex proceeded underground to work with his crew, it is unlikely 

that he would have been notified of the inspector's arrival or been 

available to attend the meeting. Truex then requested that he be given 

alternate work in an area that would allow him to be readily available 

for the meeting. Olzer denied this request and instructed Truex to go 

underground to work with his regular crew. 

At this point, Truex declared himself to be on "union business" 

because he believed that otherwise he would not be able to attend the 

conference as the designated representative of miners. 3/ Truex waited 

at the mine for the inspector who arrived sometime between 9 a.m. and 

9:45 a.m. Stipulation 20. Truex attended the one and .one-half hour 

meeting on the hearing conservation plan with the inspector and Olzer. 

At the close of the meeting, Truex asked Olzer if any work was available 

for him. Olzer told Truex that, because he had declared himself to be 

on "union business," no work was available for him for the remainder of 

the shift. Truex then left the mine property. 

On October 5, 1984, Consol received a citation from an MSHA inspector, 

alleging a violation of section 103(f) for refusing to pay Truex for the 

time during which he participated in the meeting concerning the hearing 

conservation plan. Consol abated this citation by paying Truex for the 

one and one-half hour period spent at the meeting. 

Consol refused to pay Truex for the remaining six and one-half 

hours he was scheduled to work on August 28, 1984. Truex filed a complaint with MSHA alleging discrimination under section 105(c)(l) of the 

Mine Act. Following an investigation by MSHA, the Secretary filed with 

the Commission a discrimination complaint on behalf of Truex that is the 

subject of the present proceeding. The parties then filed briefs, 

submitted stipulated facts, and the judge subsequently issued his decision. 

7 FMSHRC 1401. 

1/ ''Union business" is an excused unpaid leave of absence to participate 

in union activities provided for in Article XVII of the National Bituminous 

Coal Wage Agreement of 1981 ("Contract"). See Stipulations of Fact, 

Exhibit A (July 22, 1985). -

1295 
In concluding that Consol discriminated against Truex by denying 

him the six and one-half hours pay, the judge cited section 103(f)'s 

provision that "a representative authorized by his miners shall be given 

an opportunity to accompany the ••• [inspector] during the physical 

inspection of any coal ••• mine ... for the purpose of aiding such 

inspection and to participate in pre- or post-inspection conferences 

held at the mine." Noting that the parties did not dispute "that the 

post-inspection conference which ••• Truex attended was a conference 

within the meaning of section 103(f) of the Act ••• ", the judge concluded 

that in light of the language of the statute, miners, not mine operators, 

were given the right to authorize or designate miner representatives for 

the purpose of participating in the section 103(f) conferences. 7 

FMSHRC at 1403-04. Accordingly, the judge held that Consol's action "in 

denying [Truex) the statutory right to act as the 'authorized' representative of miners under section 103(f) without in effect compelling 

him to first declare himself to be on union business" was discriminatory. 

7 FMSHRC at 1404. Further, the judge concluded that the effect of 

Consol's discriminatory action was to require Truex to lose six and 

one-half hours' pay for serving as the authorized representative of 

miners. 7 FMSHRC at 1404. 

On review, Consol contends that the judge erred in finding that it 

violated section 103(f) and discriminated against Truex in violation of 

section 105(c)(l) of the Act. Consol raises a number of arguments in 

support of this contention. Consol argues that under the circumstances 

presented the Union could not insist on designating Truex as the miner 

representative and that Consol could comply with section 103(f) by 

offering to permit one of the other 130 hourly employees to participate 

in the conference as a representative of miners. Consol emphasizes that 

at the time Truex notified management that he was the representative, 

the MSHA inspector had not arrived and was not expected for about one 

and one-half hours. 4/ Consol asserts that its duty under section 

103(f) does not arise until such time as the MSHA inspection activity 

begins and that Truex's request constituted an impermissible infringement 

on management's work assignment prerogatives. Consol also asserts that 

the Union failed to comply with the.requirements of 30 C.F.R. Part 40 

with respect to filing information identifying the representative of 

miners and that this failure entitled Consol to follow past practice and 

provide any one of the miners the opportunity to participate as the 

miner representative. Finally, Consol contends that once Truex elected 

to go on "union business" he was no longer under the direction and 

control of Consol, and therefore Consol had no obligation to assign work 

to him or to pay him for the remainder of the shift. 

4/ Consol asserts that MSHA Inspector Mackey violated the provisions of section llO(e), 30 U.S.C. § 820(e), prohibiting advance notice of 

inspections, when he telephoned Olzer and informed Olzer that he would 

be at the mine the next morning to review the hearing conservation plan. 

Although Consol contends the judge erred in failing to consider this 

(footnote continued) 

1296 
In response, the Secretary argues that pursuant to section 103(f) 

it is the right of the miners to designate a representative to participate 

in inspections and conferences, with no loss of pay for an employee-representative. The Secretary notes that Olzer was informed that Truex was 

the representative of miners for the conference at issue. Therefore, 

the Secretary contends that Consol's assertion that any of the 130 

miners could have served as the authorized representative of miners is 

erroneous. According to the Secretary, once Consol was notified that 

Truex was the miners' designated representative, Consol was required by 

the statute to afford him an opportunity to participate in the meeting 

without a loss in pay. 

For the.reasons that follow, we conclude that the judge correctly 

found that, in the circumstances of this case, Consol discriminated 

against Truex in violation of section 105(c)(l) of the Act. 

Under the Mine Act, a complaining miner establishes a prima facie 

case of discrimination by proving 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); 

Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 

803, 817-818 (April 1981). The operator may rebut the prirna facie case 

by showing either that no protected activity occurred or that the adverse 

action was not motivated in any part by protected activity. Robinette, 

3 FMSHRC at 818 n. 20. Thus, Truex must first show that his attempt to 

attend the conference with Inspector Mackey was protected under the Act. 

Therefore, we first consider the rights conferred upon miners by section 

103(f). We emphasize at the outset, however, that the parties have 

stipulated that the meeting with Inspector Mackey was "the type of 

activity giving rise to [miner] participation rights under section 

103(f) of the Act." Stipulation 31. We are constrained in this case by 

the parties' stipulations and our decision is restricted solely to the 

facts presented. 

Footnote 4 end. 

argument, the issue was not raised before the judge. Consol advances it 

for the first time on review. Absent a showing of good cause, section 

113(d)(2)(A)(iii) of the Mine Act precludes our review of questions of 

law and fact not presented to the judge. 30 U.S.C. § 823(d)(2)(A)(iii). 

Jones & Laughlin Steel Corp., 5 FMSHRC 1209, 1212 (July 1983). Such 

good cause has not been den:onstrated. Consequently, the "advance notice" 

issue is not before us and will not be addressed. 

1297 
Section l03(f) affords to both representatives of operators and to 

representatives of miners the right to accompany the MSRA inspector 

during his "physical inspection of [the] ••• mine" and to ai<l i.n pre- or 

post-inspection conferences. Further, participation by the rcprl~­

sentative of .uiners is compensable. Congress recognized the important 

function served by snch eights. The Senate Report stated, "It is the 

Committee's view that [participation in inspections and pre- and postinspection co11f<Yl"t,nt~trn) will enable miners to understand the safety and 

·health requirements of the Act and will enhance mine safety ;:md health 

awareness." S. Rep. No. 181, 9Sth Cong., 1st Sess. 28-29 (1977), 

reprinted in Senate Subcommittee on Labor, Committee on :-tuman Resources, 

95th Cong. 2nd Sess., Legislative History of the Federal Mine_l?_~~ty and 

Health Act of 1977, at 616-17 (1978) (''Legis. Hist."). See also 

Magma Copper Co~-.-1 FMSHRC 1948, 1951-52 (December 1979)-:-affTd"; 

Magma Copper--CO. v. FMSHRC, 645 F.2d 694 (9th Cir. 1981), cert. denied, 

454 U.S. 940 (1981). 

The judge found that "it is the miners and not the mine operator, 

~ho authorize or designate a representative for the purpose of participating in •.• a [post-inspection] conference. There is no statutory 

ambiguity ori this point and the plain meaning must prevail." 7 FHSB:RC 

at 1404. We agree. The language of section 103(f), providing that "a 

representative authocized by his miners shall be given an opportunity to 

accompany the Secretary", unambiguously provides that miners possess the 

right to choose the lr l~epresentative for section 103( f) ins pee tions and 

pre- and post-inspection conferences. (Emphasis added). See also 

Leslie Coal l:!_~~i..!!!L_~~· v. Secretary of.Laj:>;:>r, l FMSHRC zoiz:-2027 

(December 1979)(ALJ). 

The undisputed record ev:Uenc.e estahlis~1es that Truex was selected 

by the miners to sel'.'\1e as the t.r ·cepresentative for the meeting at h~sne. 

The president of the Union local, Lipinski, assi3ned Truex to serve as 

the mi.11ers' r:epr'l'!S(~fl tative at the meeting with Inspec ttlr Mackey. On the 

morning of the 1neeti11g, Truex informed Olzer that he had been clestgrrnteci 

as the 1nlners' representative for the meeting w-ith the inspector. 

Con.sol ·loes not dlspute that, for the purpose of the meeting, Trnex was 

,i.-~sig1rn.ted by the miners as their authori?.eJ representative. See 

St Lpulation 3'4. The parties agree that hatl r::'ruex proceede<l to work:. with 

his regular cretv, lt is llkely that he would not have been 1wtlf Lr~d ol: 

the inspector's <'trri.val nor have been available to. atti~n<l the conference. 

StipuLition 17. Further, Consol does not dispute that Trnex understood 

this to be the case and went on "union business" only to he ahle to act 

as the representative of miners at the meetint;. Stipulation 33. Consequently, it is clear that r.,)nsol.'s refusal to either agree to notify 

Truex at his undergroum1 ,.,,irk statit>n of the lnspector's arr.i11al ;J.1ul 

allow hL111. to leave to attend the meeting or to reasst~n hlm work in an 

area Er1m lvhieh he could have easily attended the 1neeti.ng effectively 

denied miners their choice of representative at the cmtference. 

Furthermore, as explained belo1.<1, the miners' choice of Truex: as tlwir. 

represent<l tive rested on reasonable grounds and would have caused no 

anacceptable disruption in the work: place. 

129.8 
Consol's argument that the miners' section 103(f) rights, if any, 

arose when the inspector arrived on mine property is not well taken on 

this record. The purpose of section 103(f) is to enhance miner understanding and awareness of the health and safety requirements of the Act. 

The fact that section 103(f) protects the miner representative, who is 

also an employee of the operator, from a loss in pay in exercising his 

section 103(f) rights evidences Congressional recognition tha.t an operator 

would be required to make modifications in work assignments to permit 

miner representatives to exercise section 103(f) rights. Here, Consol 

was aware that an MSHA inspector would be arriving for a meeting to 

review a hearing conservation plan. Consol was also aware that Truex 

was familiar with the plan and had been designated by the miners to 

participate as their representative in the review of the plan. Nevertheless, upon being notified that Truex was the representative of miners, 

Olzer directed Truex to proceed underground with his regular crew. 

Truex indicated his willingness to do so, but asked that he be notified 

when the inspector arrived. .This request was refused. Olzer further 

refused Truex's request that he be permitted to work, until the inspector 

arrived, in an area that would have allowed him to be readily available 

for the meeting. Under these circumstances, Truex's requests rather 

than Olzer's responses reflected the reasonable work adjustments required 

under section 103(f) to fully effectuate that section's participation 

rights. 

Olzer's violative refusal caused Truex, if he was to fulfill his 

statutory role as a representative of the miners, to declare himself on 

"union business". Accordingly, at the time that Truex invoked the Wage 

Contract right, Consol already had acted in violation of section 105(c)(l) 

interfering with Truex's section 103(f) rights. Thus, Consol's attempt 

to use the Contract as a defense is irrelevant and Consol is liable for 

payment of the six and one-half hours of wages Truex would have earned 

absent its violation. 

Finally, we are not persuaded that the Union's failure to file 

information required by 30 C.F.R. sections 40.2(a) and 40.3 regarding 

the identification of representatives of miners defeats Truex's claim 

here. In Consolidation Coal Co. v. Secretary of Labor and United Mine 

Workers of America, 3 FMSHRC 617 (March 1981), the Commission held that 

the failure to file as a representative of miners under Part 40 did not 

per se entitle an operator to deny an individual walkaround participation 

rights. 3 FMSHRC at 619. The Commission recognized that "In a particular situation, absent filing, an operator may in good faith lack a 

reasonable basis for believing that a person is in fact an authorized 

representative of miners." Id. Here, however, as the judge noted and 

as the stipulations establis~ Consol did not question that Truex was, 

in fact, the designated representative of miners for the conference at 

issue. Whatever implications might result in some other context from a 

failure to file under Part 40 need not be resolved in this case. 

Consequently, we conclude that by preventing Truex from acting as a 

representative of miners without first declaring himself to be on "union 

business" and thus incurring a loss of pay, Consol denied Truex the 

opportunity to exercise his 103(f) rights and thereby discriminated 

against Truex in violation of section 105(c)(l). 

1299 
Accordingly, we affirm the decision of the judge. 

( 

am~s A. La to~ Commissioner 

di]__,_;_v 

L. Clair Nelson, 

~ Commissioner 

1300 
Distribution 

Karl T. Skrypak, Esq. 

Consoli.dation Coal Company 

1800 Washington Road 

Consol Plaza 

Pittsburgh, Pennsylvania 15241 

Mary Griffin, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

520.3 Le;esburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1301 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 26, 1986 

LOCAL UNION 1609, DISTRICT 2, 

UNITED MINE WORKERS OF AMERICA 

v. 

GREENWICH COLLIERIES, DIVISION 

OF PENNSYLVANIA MINES 

CORPORATION 

Docket No. PENN 84-158-C 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This compensation proceeding arising under the Federal Mine Safety 

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

issues raised in Loe. U. 1889, Dist. 17,~UMW--X-v. Westmoreland Coal Co., 

Docket No. WEVA 81-256-C, decided this same date. At issue is whether 

miners idled following an underground explosion are entitled to one-week 

compensation under the provisions of the third sentence of sectio.n 111 

of the Mine Act. 1/ Commission Administrative Law Judge George A. Koutras 

};_/ The first three sentences of section 111 of the Mine Act state: 

[l] If a coal or other mine or area of such mine is closed by 

an order issued under section [103] ••• section [104] ... , or 

section [107] of this [Act], all miners working during the shift 

when such order was issued who are idled by such order shall be 

entitled, regardless of the result of any review of such order, to 

full compensation by the operator at their regular rates of pay for 

the period they are idled, but for not more than the balance of 

such shift. [2] If such order is not terminated prior to the next 

working shift, all miners on that shift who are idled by such order 

shall be entitled to full compensation by the operator at their 

regular rates of pay for the reriod they are idled, but for not 

more than four hours of such shift. [3J If a coal or other mine 

or area of such mine is closed by an order issued under section 

[104) ••• or section [107] of this [Act] for a failure of the 

operator to comply with ariy mandatory health or safety standards, 

all miners who are idled due to such order shall be fully compensated after all interested parties are given an opportunity for a 

public hearing, which shall be expedited in such cases, and after 

such order is final, by the operator for lost time at their.regular 

rates of pay for such time as the miners are idled by such closing, 

or for one week, whichever is the lesser. 

30 U.S.C. § 821 (sentence numbers and emphasis added). 

1302 
dismissed the compensation claim of the United Mine Workers of America 

("UMWA") on two grounds: (1) that the miners had been idled due to a 

section 103 order of withdrawal, not due to a subsequently issued section 

107(a) imminent danger order of withdrawal; and (2) that the section 

107(a) order failed to allege a violation of a mandatory standard. 

6 FMSHRC 2465 (October 1984)(ALJ). For the reasons set forth in our 

decision in Westmoreland, supra, we reverse and remand. 

The facts are not in dispute. An explosion occurred at about 

5:00 a.m., February 16, 1984, in the No. 1 underground coal mine of 

Greenwich Collieries ("Greenwich") located in Indiana County, Pennsylvania. At 7:00 a.m. that same morning an inspector of the Department of 

Labor's Mine Safety and Health Administration (''MSHA"), Gary Rais bough, 

issued a section 103(j) withdrawal order, which covered the entire 

mine. !:_/ The section 103(j) order stated: 

A methane ignition and/or explosion has occurred 

at approximately 5:00 a.m. in and around the 

active D-5 (037) working section. Three miners 

who were working in the D-3 section are not 

accounted for. The following persons are permitted to enter or remain in the mine for the 

purpose of rescue operations: State and MSHA 

officials, company officials and UMWA personnel 

who are necessary to conduct the rescue operations. 

!:_/ Section 103(j) of the Mine Act states: 

Accident notifications rescue and recovery activities 

In the event of any accident occurring in any coal or other 

mine, the operator shall notify the Secretary thereof and shall 

take appropriate measures to prevent tlie destruction of any evidence 

which would assist in investigating the cause or causes thereof. 

In the event of any accident occurring in a coal or other mine, where 

rescue and recovery work is necessary, the Secretary or an authorized 

representative of the Secretary shall take whatever action he deems 

appropriate to protect the life of any person, and he may, if he deems 

it appropriate, supervise and direct the rescue and recovery activities 

in such mine. 

30 U.S.C. § 813(j)(emphasis added). Orders issued pursuant to section 

103(j) or section 103(k) of the Mine Act, 30 U.S.C. § 813(k), are commonly 

known as "control orders" since they are the means by which the Secretary 

may assume initial control of a mine in the event of an accident in 

order to protect lives, initiate rescue and recovery operations, and 

preserve evidence. 

1303 
At 10:15 a.m. that morning MSHA Inspector Michael Bonde issued a section 

107(a) imminent danger withdrawal order, which also covered the entire 

mine. 1/ The section 107(a) order provided: 

An underground mine explosion has occurred in this 

mine. This order is issued to assure the safety 

of any persons in the mine until an examination is 

ma.de to determine if the entire mine is safe. 

At 2:00 p.m. that afternoon the section 103(j) control order was modified 

to a section 103(k) control order. 4/ 

As a result of the mine explosion, three miners were killed and 

several others were injured. The section 107(a) order was not terminated until April 30, 1984. On February 25, 1984, while the mine was 

3/ Section 107(a) of the Mine Act provides: 

Procedures to counteract dangerous conditions 

(a) Withdrawal order 

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

mine which is subject to this Act, an authorized representative of 

the Secretary finds that an imminent danger exists, such repre-. 

sentative shall determine the extent of the area of such mine 

throughout which the danger exists, and issue an order requiring 

the operator of such mine to cause all persons, except those 

referred to in section [104](c) of this [Act], to be withdrawn 

from, and to be prohibited from entering, such area until an 

authorized representative of the Secretary determines that such 

imminent danger and the conditions or practices which caused such 

imminent danger no longer exist. The issuance of an order under 

this subsection shall not preclude the issuance of a citation under 

section [104] of this [Act] or the proposing of a penalty under 

section [llOJ of this [Act.] 

30 U.S.C. § 817(a). 

4/ Section 103(k) of the Mine Act states: 

In the event of any accident occurring in a coal or other 

mine, an authorized representative of the Secretary, when present, 

may issue such orders as he deems appropriate to insure the safety 

of any person in the coal or other mine, and the operator of such 

mine shall obtain the approval of such representative, in consultation with appropriate State representatives, when feasible, of any 

plan to recover any person in such mine or to recover the coal or 

other mine or return affected areas of such mine to normal. 

30 u.s.c. § 813(k). 

1304 
still closed, MSHA commenced the underground phase of its examination 

into the causes of the explosion. On March 20, 1984~ MSHA also conducted 

in the mine a 11 saturation11 inspection, which resulted in the issuance of 

59 orders of withdrawal to Greenwich pursuant to section 104(d)(l) of 

the Mine Act. 30.U.S.C. § 814(d)(l). In May 1984, the UMWA filed two 

complaints with the Commission seeking one-week compensation for the 

miners' idlement: in Docket No. PENN 84-158-C, the case now pending on 

review, the UMWA based its claim on the section 107(a) imminent danger 

order; in Docket No. PENN 84-159-C, the claim was premised on the later 

section 104(d) orders of withdrawal. The complaints were assigned to 

and consolidated for hearing by Judge Koutras. 

On October 18, 1984, Judge Koutras issued a summary decision dismissing both of the UMWA's compensation complaints. With respect to 

Docket No. PENN 84-159-C, he concluded that the UMWA could not show, as 

a necessary prerequisite to one-week compensation under section 111, 

that the miners had been idled "due to" the section 104(d) orders because 

the miners were idled already by the previous section 103 and section 

107 orders. 6 FMSHRC at 2476-77. Concerning Docket No. PENN 84-158-C, 

the judge stated, "[T]he condition precedent for the awarding of a 

week's compensation in these circumstances is that the mine is idled by 

the issuance of a § 107(a) order which cites a violation." 6 FMSHRC at 

2477. He found that the mine was closed by and the miners idled due to 

the section 103 order, not the subsequently issued section 107(a) imminent 

danger order, and noted that the latter order did not cite a violation 

of a standard on its face. 6 FMSHRC at 2477-78. The judge also denied 

the UMWA's request that he retain jurisdiction of the complaint pending 

the outcome of MSHA's investigation into the causes of the mine explosion. 

6 FMSHRC at 2478. Based on these findings, the judge dismissed the complaint. 

Subsequently, the UMWA petitioned for review only as to Docket No. 

PENN 84-158-C. The Commission directed review and heard consolidated 

oral argument in this matter and two other compensation cases decided 

this date, Westmoreland, supra, and r,oc. U. 2274, Dist. 28, UMWA v. 

Clinchfield Coal Co., Docket No. VA 83-55-C. 

While this matter was pending on review, MSHA's investigation into 

the causes of the explosion continued. In view of our disposition of 

this proceeding, it is necessary to note briefly certain procedural 

developments relevant to MSHA's investigation. Between March 27 and 

April 27, 1984, MSHA had obtained from 66 persons sworn statements 

concerning the possible causes of the explosion. On March 29, 1985, 

MSHA issued Greenwich five section 104(d)(l) withdrawal orders citing 

violations of 30 C.F.R. §§ 75.301, 75.303(a), 75.316 and 75.322, mandatory 

safety standards dealing with ventilation and preshift examination 

requirements. Each order noted: "This [cited] condition was observed 

during the investigation of a multiple fatal mine explosion ••• on 

February 16, 1984." The orders were terminated on the day that they 

were issued. Greenwich contested the five orders and proceedings before 

the Commission ensued. Docket Nos. PENN 85-188-R through PENN 85-192-R 

& PENN 86-33. 

1305 
Subsequently, in connection with the present compensation proceeding, 

the UMWA transmitted to the Commission copies of the five section 104(d)(l) 

withdrawal orders, and requested a remand of 'the compensation proceeding 

to the judge to allow him to rule as to whether the allegations of 

violation contained in the section 104(d)(l) orders established the 

required nexus between the section 107(a) imminent danger order and 

underlying violations of mandatory standards. By order dated June 12, 

1985, the Commission denied the motion for remand, observing that the 

judge had already "rejected the contention that subsequently issued 104 

orders may serve as a basis for an award of compensation under the 

circumstances presented in this case." 

On September 6, 1985, the Secretary issued his final Report of 

Investigation regarding the explosion. In essence, the report concluded 

that the explosion was caused by a dangerous accumulation of methane 

ignited by electrical arcing. The report also listed as "conditions and 

practices ••• contribut[ing] to the explosion" the five violations cited 

in the section 104(d)(l) orders issued in M.arch 1985. MSHA, U.S. Dept. 

of Labor, Report of Investigation, Underground Coal Mine Explosion, Greenwich 

Collieries No. 1 Mine, etc. 68-69 (1985). The Commission permitted the 

UMWA to submit a supplemental brief in the present compensation proceeding 

discussing the report's impact, if any, on the issues presented. 

Meanwhile, Greenwich's separate contest of the five section 104(d) 

withdrawal orders had been assigned for hearing by Commission Administrative 

Law Judge Roy J. Maurer. On July 14, 1986, Judge Maurer issued an order 

granting Greenwich partial summary judgment. 8 FMSHRG 1105 (July 1986)(ALJ). 

The judge vacated the section 104(d)(l) orders "because they were not 

issued based on a finding by an MSHA inspector of an existing violation 

observed or detected during an inspection, but rather are based on an 

investigation of pre-existing, terminated violations •••• " 8 FMSHRC at 

1107. The judge modified the orders to section 104(a) citations, 30 

U.S.C. § 814(a), holding that "under the totality of the circumstances" 

they had been issued '"with reasonable promptness"' as required under 

that provision. 8 FMSHRC at 1107. The judge indicated that further 

proceedings on these modified citations would commence. On August 22, 

1986, however, we granted petitions for interlocutory review filed by 

the Secretary and the UMWA'and stayed further proceedings before Judge 

Maurer. The issues presented on interlocutory review concern only the 

judge's determination that the orders were not properly issued under 

section 104(d)(l). 

In Westmoreland, issued this same date, we have addressed thoroughly 

the proper interpretation of section 111. The material issues presented 

here are identical to the issues addressed and resolved in Westmoreland 

and, accordingly, the rationale of the latter decision is controlling. 

For the reasons stated in Westmoreland, slip op. at 7-11, the 

issuance of the initial section 103 control order did not preclude, for 

safety or compensation purposes, the subsequent issuance of the section 

107 imminent danger order. The orders had concurrent operation and 

effect. For purposes of the third sentence of section 111, the mine was 

1306 
closed by and the miners were idled due to the subsequent section 107{a) 

order, and that order may operate as a valid prerequisite to the UMWA's 

one-week compensation claim. We reverse the judge's findings to the 

contrary. 

For the reasons stated in Westmoreland, slip op. at 11-12, we also 

reverse the judge's determination that in order to trigger entitlement 

to one-week compensation a section 107{a) order must itself allege a 

violatio.n of a mandatory standard. As we concluded in Westmoreland, 

although an imminent danger order may allege or be modified later to 

allege a violation, allegations of violation subsequently cited by MSHA 

in section 104 citations or orders, once admitted or found, also may 

supply the necessary nexus between the imminent danger order and an 

underlying violation of a mandatory standard. Westmoreland, slip op. at 

13-14. 

As discussed above, MSHA issued and Greenwich has contested five 

section 104(d)(l) orders alleging violations that, allegedly, contributed 

to the metijane ignition and explosion. Docket Nos. PENN 85-188-R, etc. 

As noted, the presiding judge in that separate matter vacated those 

orders on procedural grounds and modified them to section 104(a) citations. 

The validity of the orders -- but not any allegation of violation contained 

in them -- is now pending before us in a separate proceeding on interlocutory review. In the present case, the UMWA contends that these alleged 

violations supply the required nexus with the imminent danger order for 

purposes of one-week compensation under the third sentence of section 

111. 

We held in Westmoreland that the precise form in which MSHA alleges 

a violation is not controlling for compensation purposes. Westmoreland, 

slip op. at 11-14. Therefore, the resolution of the procedural issue 

presented to the Commission on interlocutory review in Docket Nos. PENN 

85-188-R, etc., will not directly affect the UMWA's claim in this compensation proceeding that the violations provide the required nexus. The 

UMWA's assertion of nexus, however, could be affected by the ultimate 

resolution of the merits of the violations themselves in Docket Nos. 

PENN 85-188-R, etc. 

Thus, this compensation proceeding is remanded to Judge Koutras 

with instructions to hold the UMWA's complaint in abeyance pending final 

administrative resolution of the merits of the alleged violations in 

Docket Nos. PENN 85-188-R, etc. Cf. Loe. U. 1889, Dist. 17, UMWA v. 

Westmoreland Coal Co., 5 FMSHRC 1406, 1410-13 (August 1983). Upon final 

disposition with respect to the merits of the alleged violations, Judge 

Koutras shall then afford the parties the opportunity to litigate the 

question of the nexus, if any, between any violations and the issuance 

of the section 107(a) imminent danger order. 

1307 
For the foregoing reasons, the judge's decision is reversed and 

this matter is remanded for further proceedings consistent with this 

opinion. 5/ 

~-UC~ Richard V. Backley, Commissioner 

ames A., Lastow~ommissionet 

if-C_~ /!.£.£~ L. Clair Nelson, Commissioner 

5/ Chairman Ford did not participate in the consideration or dispostion of this matter. 

1308 
Distribution 

John T. Scott, Esq. 

Timothy Biddle, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 20036 

Earl R. Pfeffer, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 2000.5 

Debra Feuer, Esq. 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson B.lvd. 

Arlington; Virginia 22203 

Administrative Law Judge George Koutras 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite lOOG 

Falls Church~ Virginia 22041 

1309 

PENN 84-158-C 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 26, 1986 

LOCAL UNION 2274, DISTRICT 28, 

UNITED MINE WORKERS OF AMERICA 

v. Docket No. VA 83-55-C 

CLINCHFIELD COAL COMPANY 

BEFORE: Backley, Doyle, Lastowka, and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this compensation proceeding arising under the Federal Mine 

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

presented is whether miners idled following an underground mine explosion 

are entitled to one-week compensation pursuant to the third sentence of 

section 111 of the Mine Act. 1/ Former Commission Administrative Law 

];/ The first three sentences of section 111 provide: 

Entitlement of miners to full compensation 

[l] If a coal or other mine or area of such mine is closed by 

an order issued under section [103] ••• section [104] ..•• or 

section [107] of this [Act], all miners working during the shift 

when such order was issued who are idled by such order shall be 

entitled, regardless of the result of any review of such order, to 

full compensation by the operator at their regular rates of pay for 

the period they are idled, but for not more than the balance of 

such shift. [2] such order is not terminated prior to the next 

working shift, all miners on that shift who are idled by such order 

shall be entitled to full compensation by the operator at their 

regular rates of pay for the period they are idled, but for not 

more than four hours of such shift. [3) If.a coal or other mine or 

area of such mine is closed by an order issued under section [104] 

••• or section [107] of this [Act] for a failure of the operator to 

comply with any mandatory health or safety standards, all miners who 

are idled due to such order shall be fully compens£ted after all 

interested parties are given an opportunity for a public hearing, 

which shall be expedited in such cases, and after such order is final, 

by the operator for lost time at their regular rates of pay for such 

time as the miners are idled by such closing, or for one week, whichever is the lesser •••• 

30 U.S.C. § 821 (sentence numbers and emphasis added). 

1310 
Judge Charles C. Moore, Jr., denied the compensation claim filed by the 

United Mine Workers of America ("UMWA"), holding that the section 107(a) 

order of withdrawal that he determined had idled the miners failed to 

allege, and was not modified to allege, a violation of a mandatory 

health or safety standard. 6 FMSHRC 1782 (July 1984)(ALJ). In light of 

our decision this date in Loe. U. 1889, Dist. 17, UMWA v. Westmoreland 

Coal Co., Docket No. WEVA 81-256-C, we reverse and remand. 

The compensation claim at issue arose following an underground 

explosion that occurred at Clinchfield's McClure No. 1 underground coal 

mine in Dickenson County, Virginia, on June 21, 1983. On the morning of 

June 22, 1983, at 3:42 a.m., an inspector of the Department of Labor's 

Mine Safety and Health Administration ("MSHA"), Al Castenedo, issued a 

withd.rawal order, pursuant to section 103(k) of the Mine Act, that 

affected the entire mine. 2/ The withdrawal order stated: 

A fatal mine explosion has occurred in the 2 Left 

active section. This order is issued to assure the 

safety of any person in the coal mine until an 

examination or investigation is made to determine 

that the mine is safe to work. Only those persons 

selected from the company, state and miners representatives, officials and other persons who are 

deemed by MSHA to have information relevant to the 

investigation may enter or remain in the affected 

area. 

At 4:00 a.m. the same morning, the inspector issued a second withdrawal 

order. This order, issued pursuant to section 107(a) of the Act, cited 

the existence of an imminent danger. It also covered the entire mine. 

The withdrawal order stated: 

2/ Section 103(k) states: 

Safety orders; recovery plans 

In the event of any accident occurring in a coal or other 

mine, an authorized representative of the Secretary, when present, 

may issue such orders as he deems appropriate to insure the safety 

of any person in the coal or other mine, and the operator of such 

mine shall obtain the approval of such representative, in consultation 

with appropriate State representatives, when feasible, of any plan 

to recover any person in such mine or to recover the coal or other 

mine or return affected areas of such mine to normal. 

30 U.S.C. § 813(k). Orders :f.ssued pursuant to section 103(k) or section 

103(j), 30 U.S.C. § 813(j), are commonly referred to as "control orders" 

since they are the means by which the Secretary may assume initial 

control of a mine in the event of an accident, in order to protect 

lives, initiate rescue and recovery operations, and preserve evid.ence. 

1311 
A fatal mine explosion has occurred in the 2 Left 

active section. This order shall remain in effect 

until all the conditions, practices and causes of 

the explosion have been corrected. [1/] 

The section 107(a) imminent danger order was terminated on July 18, 

1983, and on September 30, 1983, the UMWA filed its claim for one-week 

compensation based on the imminent danger withdrawal order and on alleged 

violations of mandatory standards found by MSHA inspectors during their 

subsequent investigation of the explosion. 

In an unreported order issued on December 16, 1983, the administrative law judge denied Clinchfield's motion to dismiss the UMWA's 

compensation claim. The judge rejected Clinchfield's argument that the 

miners already had been idled by the initial section 103 "control" order 

and, therefore, could not have been idled by the section 107(a) imminent 

danger order as required under the third sentence of section 111. 

Noting that compensation under the third sentence of section 111 could 

be initiated only by an order issued pursuant to sections 104 or 107 of 

the Mine Act, the judge concluded that the section 103 order was 

irrelevant to the UMWA's claim under the third sentence of section 111. 

He reasoned that the subsequent section 107(a) order was like "a second 

padlock on the door," which prevented the miners from entering the mine 

just as the first order had withdrawn them initially. However, the. 

judge concluded that, for purposes of the one-week compensation claim, 

the idlement must result from "an order which charges a violation of the 

health or safety standards." (Emphasis added.) The judge retained 

3/ Section 107(a) provides: 

Procedures to counteract dangerous conditions 

(a) Withdrawal orders 

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

mine which is subject to this Act, an authorized representative of 

the Secretary finds that an imminent danger exists, such representative shall determine the extent of the area of such mine 

throughout which the danger exists, and issue an order requiring 

the operator of such mine to cause all persons, except those 

referred to in section [104](c) of this [Act], to be withdrawn 

from, and to be prohibited from entering, such area un~il an 

authorized representative of the Secretary determines the:"!: such 

imminent danger and the conditions or practices which caused such 

imminent danger no longer exists. The issuance of an order under 

this subsection shall not preclude the issuance of a citation under 

section [104] of this [Act] or the proposing of a penalty under 

section [110] of this [Act.J 

30 U.S.C. § 817(a). 

1312 
jurisdiction in order to determine "[w]hether MSHA, after completing its 

investigation can effectively modify the imminent danger order or take 

some other action which would allow the miners to prevail in this 

case." !±./ 

In a summary decision issued July 23, 1984, the judge denied the 

UMWA's compensation claim. Taking judicial notice of MSHA's official 

accident investigation report, and expressing surprise that MSHA 

apparently had given no thought to modifying the section 107(a) order to 

allege violations of niandatory standards, the judge concluded: 

The mine was closed because an inspector thought an 

imminent danger existed not because he thought there 

was "a failure of the operator to comply with any 

mandatory health or safety standards." The fact 

that the explosion that led to the order was 

actually, in accordance with my assumptions, caused 

by the violations does not affect the fact that the 

inspector did not issue the order "for a failure of 

the operator to comply with ••• safety standards." 

6 FMSHRC at 1784. 

We granted the UMWA' s petition for discretionary review., permitted 

the Secretary of Labor to file an amicus curiae .brief, and heard consolidated oral argument in this matter and two other compensation cases 

decided this date, Westmoreland, supra, and Loe. U. 1609, Dist. 2, UMWA 

v. Greenwich Collieries, Div. of Pennsylvania Mines Corp., Docket No. 

PENN 84-158-C. We now reverse. 

In Westmoreland we examine thoroughly the language, structure, and 

purposes of section 111, and its third sentence in particular. The 

material issues presented in the instant matter are identical to issues 

resolved in Westmoreland and that decision, accordingly, controls our 

disposition here. 

For the reasons stated in Westmoreland, slip op. at 7-11, we agree 

in result with the judge that the initial section 103(k) control order 

did not preclude, for safety or compensation purposes, the subsequent 

issuance of the section 107(a) imminent danger withdrawal order. The 

orders had concurrent operation and effect. For purposes of the third 

sentence of section 111, the mine was closed by and the miners were 

idled due to the subsequent section 107(a) order. 

4/ On March 26, 1984, MSHA issued one section 104(d) (1) citation and 

four section 104(d)(l) withdrawal orders, three of which alleged that 

the cited violations had resulted in a methane ignition, which caused 

the explosion on June 21, 1983, at the McClure mine. Clinchfield did 

not contest the citation or orders and paid $47,500 in civil penalties. 

(No issues are presented in this proceeding regarding the validity of 

the citation or orders.) 

1313 
Further, for the reasons stated in Westmoreland, slip op. at 11-13, 

we reverse the judge's determination that a section 107(a) order, whether 

as issued or as subsequently modified, must itself allege a violation of 

a mandatory standard in order to trigger entitlement to one-week compensation. We conclude, in accordance with Westmoreland, that allegations 

of violation cited subsequently by MSHA may supply the required nexus 

under section 111 between the section 107(a) imminent danger order and 

an underlying violation of a mandatory standard. Westmoreland, slip op. 

at 13-14. 

As noted above, Clinchfield did not contest the subsequently issued 

section 104(d)(l) citation and three section 104(d)(l) withdrawal orders. 

Instead, it paid the penalties proposed 'by the Secretary. Both the 

Secretary and the UMWA have asserted that those allegations of violation 

cited in the section 104(d) citation and orders supply the required 

causal nexus between the imminent danger order and an underlying violation 

for purposes of entitlement to one-week compensation. That question now 

remains to be determined in this matter. · 

Accordingly, we remand this proceeding to the Chief Administrative 

Law Judge for assignment to himself or another Commission administrative 

law judge to determine whether the violations referenced above provide 

the required causal nexus between the section 107(a) imminent danger 

order and an underlying violation of a mandatory standard. If such a 

relationship is found, the presiding judge shall take appropriate action 

to identify affected miners and determine the amount of compensation due 

to each miner. 

1314 
For the foregoing reasons, the judge's decision is reversed. This 

matter is remanded to the Chief Judge for further proceedings consistent 

with this decision. j/ 

~Us«~ Co~ssioner 

. • f__LVv !la~/ L. Clair Nelson, Commissioner 

s/ Commissioner Ford did not participate in the consideration or 

disposition of this case. 

131S 
Distribution 

John T. Scott, Esq. 

Timothy Biddle, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 20036 

Earl R. Pfeffer, Esq. 

United Mine Wo~kers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Debra Feuer, Esq. 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson B.lvd. 

Arlington, Virginia 22203 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suit~ 600 

Washington, D.C. 20006 

1316 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 26, 1986 

LOCAL UNION 1889, DISTRICT 17, 

UNITED MINE WORKERS OF AMERICA 

v. Docket No. WEVA 81-256-C 

WESTMORELAND COAL COMPANY 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This proceeding under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (1982), raises important issues concerning 

the compensation provisionsof section 111 of the Mine Act. 30 u.s.c. 

§ 821. y The United Mine Workers of America ("UM.WA" or "Union") seeks 

1/ The first four sentences of section 111 provide: 

Entitlement of miners to full compensation 

[l) If a coal or other mine or area of such mine is 

closed by an order issued under section [103} ••• , section 

[104] •.. , or section [107] of this [Act], all miners working 

during the shift when such order was issued who are idled by 

such order shall be entitled, regardless of the result of any 

review of such order, to full compensation by the operator at 

their regular rates of pay for the period they are idled, but 

for not more than the balance of such shift. [2] If such 

order is not terminated prior to the next working shift, all 

miners on that shift who are idled by such order shall be 

entitled to full compensation by the operator at their regular 

rates of pay for the period they are idled, but for not more 

than four hours of such shift. [3] If a coal or other mine or 

area of such mine is closed by an order issued under section 

[104] ••. or section [107] of this [Act] for a failure of the 

operator to comply with any mandatory health or safety standards, 

all miners who are idled due to such order shall be fully compensated after all interested parties are given an opportunity 

for a public hearing, which shall be expedited in such cases, 

and after such order is final, by the operator for lost time at 

their regular rates of pay for such time as the miners are idled 

(footnote 1 continued) 

1317 
compensation from Westmoreland Coal Company ("Westmoreland") pursuant to 

the third sentence of section 111 for an idlement of miners that the Union 

seeks to link to an imminent.danger withdrawal order issued following an 

explosion at one of Westmoreland's underground coal mines. Former Commission Administrative Law Judge Richard C. Steffey dismissed the UMWA's 

compensation complaint, holding that: (1) for purposes of determining 

entitlement to compensation, the miners in question were not idled by 

the imminent danger order issued pursuant to section 107(a) of the Act 

but by a withdrawal order previously issued pursuant to section 103(j); 2/ 

Footnote 1 end. 

by such closing, or for one week, whichever is the lesser. 

[4] Whenever an operator violates or fails or refuses to comply 

with any order issued under section [103] ••• ,section [104] ••• , 

or section [107] of this [Act], all miners employed at the affected 

mine who would have been withdrawn from, or prevented from entering, 

such mine or area thereof as a result of such order shall be entitled 

to full compensation by the operator at their regular rates of pay, 

in addition to pay received for work performed after such order was 

issued, for the period beginning when such order was issued and 

ending when such order is complied with, vacated, or terminated •••• 

30 U.S.C. § 821 (sentence numbers and emphasis added). 

]J Section 103(j) provides: 

Accident notification; rescue and recovery activities 

In the event of any accident occurring in any coal or other 

mine, the operator shall notify the Secretary thereof and shall 

take appropriate measures to prevent the destruction of any evidence 

which would assist in investigating the cause or causes thereof. 

In the event of any accident occurring in a coal or other mine, 

where rescue and recovery work is necessary, the Secretary or 

an authorized representative of the Secretary shall take whatever action he deems appropriate to protect the life of any 

person, and he may, if he deems it appropriate, supervise 

and direct the rescue and recovery activities in such mine. 

30 U.S.C. § 813(j) (emphasis added). Orders issued pursuant to section 

103(j) or section 103(k), 30 U.S.C. § 813(k), are commonly referred to 

as "control orders" since, as discussed infra, they are· the means by 

which the Secretary may take initial control of a mine in the event of 

an accident in order to· protect lives, initiate rescue and recovery 

operations, and preserve evidence. 

Section 107(a) provides: 

Procedures to counteract dangerous conditions 

(footnote 2 continued) 

1318 
(2) even if the miners were idled by the section 107(a) order, that 

order did not allege nor was it modified to allege a violation of a 

mandatory health or safety standard, which the judge found was required 

under the third sentence of section 111; and (3) the violations of 

mandatory standards alleged in 13 subsequently issued section 104(d)(2) 

withdrawal orders could not constitute a "nexus" between the section 

107(a) order and the violation of a mandatory standard. 6 FMSHRC 2192 

(September 1984)(ALJ). For the reasons explained below, we conclude 

that the judge erred in his resolution of each of these questions and 

reverse and remand. 

I. 

Facts and Procedural History 

The facts were stipulated by the parties and are set forth in the 

judge's Second Summary Decision. 6 FMSHRC at 2194-96. Briefly, an 

explosion occurred at approximately 3:30 a.m. on November 7, 1980, in 

Westmoreland' s Ferrell No. 17 underground coal mine located in West 

Virginia.. At 7: 30 a .m. on November 7, Inspector Eddie White of the 

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

issued a section 103(j) withdrawal order that applied to the entire 

mine. The section 103(j) order provided: 

An ignition has occurred in 2 South off 1 

East. This was established by a power failure at 

3:30 a.m. and while searching for the cause of the 

power failure, smoke was encountered in the 2-South 

section. Five employees in the mine could not be 

accounted for. [The area or equipment involved 

Footnote 2 end. 

(a) Withdrawal orders 

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

mine which is subject to this [Act], an authorized representative 

of the Secretary finds that an imminent danger exists, such representative shall determine the extent of the area of such mine 

throughout which the danger exists, and issue an order requiring 

the operator of such mine to cause all persons, except those referred 

to in section [104](c) of this [Act], to be withdrawn from, and to 

be prohibited from entering, such area until an authorized representative of the Secretary determines that such imminent danger and 

the conditions or practices which caused such imminent danger no 

longer exist. The issuance of an order under this subsection shall 

not preclude the issuance of a citation under section (104] of this 

[ActJ or the proposing of a penalty under section [110] of this 

[Act.] 

30 U.S.C. § 817(a). 

1319 
is] the entire mine. The following persons are 

permitted to enter the mine: Federal coal mine 

inspectors, West Virginia Department of Mines coal 

mine inspectors, responsible company officials, 

and United Mine Workers of America miner's representatives. 

One half-hour later, at 8: 00 a.m., Inspector White issued a section 

107(a) imminent danger withdrawal order also covering the entire mine. 

The order, which did not allege a viola.tion of any rnanda tory heal th or 

safety standard, stated: 

All evidence indicates that an ignition of 

unknown sources has occurred and five employees 

cannot be accounted for. 

The bodies of the five miners were recovered on November 8, 1980, 

and the 2-South area of the mine was sealed off. Both withdrawal orders 

were modified on December 10, 1980, to cover "the seals and areas inby 

the seals." On July 15, 1982, twenty months after the explosion, MSHA 

issued 13 section 104(d)(2) withdrawal orders citing violations of 

mandatory standards based on sworn statements taken during MSHA's 

investigation of the mine explosion. 3/ The section 107(a) order was 

not modified to allege violations of mandatory standards, and was 

terminated on November 15, 1983. 

J../ Section 104(d) provides: 

Findings of violations; withdrawal order 

(1) If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there has 

been a violation of any mandatory health or safety standard, and if 

he also finds that, while the· conditions created by such violation 

do not cause imminent danger, such violation is of such nature as 

could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard, and if he 

finds such violation to be caused by an unwarrantable failure of 

such operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation given to 

the operator under this [Act]. If, during the same inspection or 

any subsequent inspection of such mine within 90 days after the 

issuance of such citation, an authorized representative of the 

Secretary finds another violation of any mandatory health or safety 

standard and finds such violation to be also caused by an unwarrantable failure of such operator to so comply, he shall forthwith 

(footnote 3 continued) 

1320 
The litigation of this matter has followed a complicated course. 

Some of this history is described in the Commission's previous decision 

(see infra), and will not be repeated in full here. On February 5, 

1981, the UMWA filed a complaint under section 111 of the Mine Act 

seeking compensation for the miners' idlement, which the Union attributed 

to the withdrawal orders issued on November 7 in the aftermath of the 

mine explosion. The UMWA's complaint, as later amended, sought, among 

other things, the limited compensation available under the second sentence 

of section 111 ("shift compensation") for the miners idled on the November 7 

day shift, and one week's compensation under the third sentence of 

section Ill ("one-week compensation") for all of the idled miners. 

On April 28, 1982, the judge issued a Summary Decision, in relevant 

part granting shift compensation for the miners idled on the November 7 

day shift but dismissing without prejudice the Union's claim for one-week 

compensation on the grounds that the section 107(a) order did not allege 

a violation of a mandatory standard. 4 FMSHRC 773, 776-79, 784-88 

(April 1982) (ALJ). The judge noted that there was "nothing to prevent 

UMWA from filing.a complaint for a week of compensation under the third 

sentence of section 111 if and when MSHA does modify [the] outstanding 

imminent-danger order ••• to allege one or more violations of the mandatory 

health and safety standards by Westmoreland." 4 FMSHRC at 789. The 

judge denied the UMWA's request that he retain jurisdiction of the case 

and defer final decision pending completion of MSHA's investigation into 

the causes of the mine explosion. 4 FMSHRC at 788-89. The UMWA. filed 

with the Commission a petition for discretionary review, which was 

granted on June 6, 1982. 

Footnote 3 end. 

issue an order requiring the operator to cause all persons in the 

area affected by such violation, except those persons referred to 

in subsection (c) of this section to be withdrawn from, and to be 

prohibited from entering, such area until an authorized representative of the Secretary determines that such violation has been 

abated. 

(2) If a withdrawal order with respect to any area in a coal 

or other mine has been issued pursuant to paragraph (1), a withdrawal 

order shall promptly be issued by an authorized representative of 

the Secretary who finds upon any subsequent inspection the existence 

in such mine of violations similar to those that resulted in the 

issuance of the withdrawal order under paragraph (1) until such 

time as an inspection of such mine discloses no similar violations. 

Following an inspection of such mine which discloses no similar 

violations, the provisions of paragraph (1) shall again be applicable to that mine. 

30 u.s.c. § 814(d). 

1321 
The major question presented on review was whether the judge had 

erred in not retaining jurisdiction over the one-week compensation 

claim. The Commission concluded that he had erred, and remanded the 

case to the judge with instructions to hold the record open to permit 

the parties to make any appropriate motions or showings upon the completion of MSHA's investigation. Loe. U. 1889, Dist. 17, UMWA v. 

Westmoreland Coal Co., 5 FMSHRC 1406, 1410-13 (August 1983). The 

Commission noted the issuance of the 13 section 104(d)(2) orders in July 

1982, but expressed no view at that time as to "whether these thirteen 

104(d)(2) orders or any later modification of the 107(a) Order ••• may 

provide the basis for [one-week] compensation under the third sentence of 

section 111." 5 FMSHRC at 1413. 

In the consolidated notice of contest and civil penalty proceeding 

involving review of the 13 section 104(d)(2) orders (Docket Nos. WEVA 

82-340-R, etc.), Judge Steffey vacated the orders, concluding that 

they had been improperly issued under section 104(d), but he upheld the 

assertions of violation underlying the vacated orders. In a later order 

approving settlement, the judge approved Westmoreland's agreement to pay 

civil penalties totalling $38,000 for the violations alleged in the 13 

vacated section 104(d) orders. 6 FMSHRC 1267 (May 1984)(ALJ). 

In his decision on remand from the Commission in the compensation 

proceeding, the judge again denied the UMWA's claim for one-week 

compensation. The judge determined that the miners had been withdrawn 

by the section 103(j) order, not by the section 107(a) order issued one 

half-hour later, and that "[t]herefore, UMWA cannot satisfy the first 

prerequisite under the third sentence of section 111 which requires a 

showing that miners were withdrawn and idled by the 107(a) order." 

6 FMSHRC at 2201. The judge further concluded that even if the miners 

had been withdrawn by the section 107(a) order, it neither alleged at 

the time of its issuance, nor had it been modified prior to its termination to allege, a violation of a mandatory standard, another prerequisite, 

in the judge's view, for one~week compensation under section 111. 

6 FMSHRC at 2202. Despite Westmoreland's payment of civil penalties in 

settlement of the underlying allegations of violation contained in the 

13 vacated section 104(d) orders (supra), the judge opined that the 

orders could not "be said to allege violations as part of an imminent 

danger order because [the section 104(d) orders] could not have been 

issued in the first instance without a finding that the violation cited 

in the order did not cause an imminent danger." Id. 

We granted the petition for discretionary review filed by the UMWA, 

and heard consolidated oral argument in this matter and two other similar 

compensation cases also decided this date, Loe. U. No. 2274, Dist. 28, UMWA 

v. Clinchfield Coal Co., Docket No. VA 83-55-C, and Loe. U. 1609, Dist. 2, 

UMWA v. Greenwich Collieries, Div. of Pennsylvania Mines Corp., Docket 

No. PENN 84-158-C. 

1322 
II. 

Disposition of Questions Presented 

This case presents three major issues: (1) whether the issuance of 

a section 103(j) order precludes a subsequently issued section 107(a) 

order from serving as a necessary prerequisite for entitlement to one-week 

compensation under the third sentence of section 111; (2) whether a 

section 107(a) order must allege, or be modified prior to its termination to allege, a violation of a mandatory health or safety standard 

in order to trigger entitlement to one-week compensation; and (3) whether 

a subsequent allegation by the Secretary of a violation of a mandatory 

standard in a separate citation or order may provide the nexus between 

the issuance of the 107(a) order and an underlying violation. 

These questions center around the meaning of a few key words in the 

third sentence of section 111 (n.1 supra): What are the relationships 

intended by the statutory references to a mine being closed "by" a 

section 104 or 107 order, the miners being idled "due to11 suchan order, 

and the order itself having been issued "for" a violation of a standard? 

30 U.S.C. § 821 (emphasis added throughout). In our view, the meaning 

of these words becomes clear when they are viewed in the proper context 

of section 111 as a purposive whole. 

A. The sequence of withdrawal orders 

We turn first to the judge's conclusion that the miners had already 

been idled officially as a result of the prior issuance of the section 

103(j) "control" order and, theref'ore, for purposes, of entitlement to 

one-week compensation, could not have been idled as a result of the 

subsequent sectioh 107(a) order as required for such entitlement under 

the third sentence of section 111. 

Section 111 is remedial in n~ture and was not intended by Congress 

to be interpreted and applied narrowly. The key Senate Report on the 

bill that was enacted as the~Mine Act states: 

Miners['] entitlement resulting from closure orders 

As the Committee has consistently noted, 

the primary objective of this Act is to assure the 

maximum safety and health of miners. For this 

reason, the bill provide~ at Section ll[lJ that 

miners who are withdrawn from a mine because of 

the issuance of a withdrawal order shall receive 

certain compensation during periods of their 

withdrawal. This provision, drawn from the Coal 

Act, is not intended to be punitive, but recognizes 

that miners should not lose pay because of the 

operator's violations, or because of an imminent 

danger which was totally outside their control. 

1323 
It is therefore a remedial provision which also 

furnishes added incentive for the operator to 

comply with the law. This provision will also 

remove any possible inhibition on the inspector in 

the issuance of closure orders. 

S. Rep. No. 181, 95th Cong., 1st Sess. 46-47 (1977)("S. Rep."), reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 

2d Sess., Legislative History of the Federal Mine Safety and Health Act of 

· 1977. at 634-35 (1978) ("Legis. Hist.") (emphasis added). As the Commission 

has stated previously, •isection 111 is designed to promote safety and 

protect lives •••• " Loe. U. No. 781, Dist. 17, UMWA v. Eastern Assoc. Coal 

Corp., 3 FSHRMC 1175, 1178 (May 1981). The judge's formalistic emphasis 

on the sequencing of relevant withdrawal orders and his imputation of 

preclusive effect to the order issued first in time cannot be squared 

with the language, structure, and purpose of section 111 and other 

pertinent provisions of the Mine Act. 

We have no difficulty with the proposition that only the specific 

types of withdrawal orders listed in each of the first four sentences of 

section 111 may serve as prerequisites for entitlement to the forms of 

compensation mentioned respectively in those sentences. Nevertheless, 

the focus of section 111 as a whole is on the operator's conduct as it 

relates to conditions in the mine -- not the chronology of the Secretary's 

official actions in response to mine accidents or emergencies. Moreover, 

section 111 contemplates in furtherance of safety that section 103 

control orders and other relevant withdrawal orders have concurrent, 

rather than mutually exclusive, operation and effect. 

Section 111 creates a graduated scheme of compensation tying enlarged 

compensatory entitlement to increasingly serious operator conduct. 

Thus, upon a mine closure and idlement attributable to the issuance of a 

section 103, 104, or 107 order, the limited shift compensation described 

in the first sentences of section 111 is awardable "regardless of the 

result of any review of such order •••• " 30 U.S.C. § 821. If, however, 

the closure and idlement is attributable to a section 104 or 107 order 

"issued ..• for a failure of~the operator to comply with any mandatory 

,,, standard, 11 the entitlement under the third sentence of section 111 

is to one-week compensation. Id. Finally, and most seriously, if an 

operator fails to comply with a-section 103, 104, or 107 order, the 

miners who otherwise would have been withdrawn are to be paid the full 

compensation specified in the fourth sentence of section 111 in addition 

to their regular pay, until such time as the order is complied with, 

vacated, or terminated. The primary emphasis that we discern in this 

scheme is upon what the operator has done, not on any expressed concern 

over the particular sequencing of the issuance of various types of 

withdrawal orders by the Secretary. 

The decisions of this Commission and the predecessor Interior Board 

of Mine Operations Appeals ("Board") evidence consistent precedent that 

a prior idlement of miners, whether occurring as a result of the issuance 

of an initial control order or, involuntarily, because of emergency 

conditions, does not bar miners' entitlement pursuant to a subsequently 

issued withdrawal order. 

1324 
Under the analogous compensation provisions of section llO(a) of 

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

compensation was awardable for an idlement attributed to an order issued 

under section 104 of that Act and one-week compensation was available if 

the idlement was attributed to a section 104(c) withdrawal order issued 

for an "unwarrantable failure" to comply with a mandatory standard. 30 

U.S.C. § 820(a)(l976)(amended 1977). Sections 103(e) & (f) of the 1969 

Coal Act, 30 U.S.C. §§ 813(e) & (f)(l976)(amended 1977), were the control 

order provisions analogous to sections 103(j) & (k) of the Mine Act. In 

interpreting the meaning and interplay of these 1969 Coal Act provisions, 

in circumstances analogous to the present case, the Board held: 

The miners in the instant case were officially 

withdrawn by the 103(f) [control] order. However, 

they were also officially withdrawn by the [subsequent] section 104(c) [unwarrantable failure 

withdrawal] orders. The language in section 

llO(a) of the Act allows compensation to miners 

who are "idled" by a 104(c) order. There is 

nothing in the language of that section to 

indicate that compensation for miners will 

not lie when there are two different orders 

of withdrawal in effect concurrently. 

Additionally, that section does not require 

the 104 order to be the first official one. 

Sequence .•• is not the essence of the applicability of section llO(a). 

Roscoe Page v. Valley Camp Coal Co., 6 IBMA 1, 6 (1976) (emphasis added). 

In addressing similar issues under the 1969 Coal Act, the Commission 

also adopted the approach that initial control orders and other subsequent 

compensation-qualifying withdrawal orders operated "concurrently." 

Peabody Coal Co., etc., 1 FMSHRC 1785, 1790 (November 1979). 

In Loe. U. No. 781, etc. v. Eastern, supra, a compensation case 

arising under the Mine Act, the Commiss.ion applied the concept of "nexus" 

to determine the causative relationship between the operation of withdrawal 

orders and idlements. The Commission stated, "[SJection 111 compensation. 

is awardable only if there is a nexus between a designated withdrawal 

order and the miners' idlement ••• ,or between the underlying reasons 

for the idlement ••. and the reasons for the order." 3 FMSHRC at 1178. 

The Commission defined "nexus" in terms of a "significantly substantial 

relationship" between idlement and withdrawal order "to support a section 

111 award." Id. Rather than establishing an inflexible nexus requirement 

the Commissionspecifically recognized the possibility cf "more complicated 

sequences of events or concurrent operation of causative factors." Id. 

(Emphasis added.) The Commission held: "In such cases, we will exa~ne 

the relationship between the underlying reasons for the withdrawal and 

for the order, and will give balanced consideration both to the •. , 

1325 
compensatory character of section 111 and to the overall safety purposes 

of the 1977 Mine Act and section 111 itself." Id. The foregoing principles 

are determinative of the present issue. 

In the present case, the initial section 103(j) control order and 

the subsequent section 107(a) imminent danger withdrawal order each 

played a particular role with respect to the overall safety concerns of 

the Mine Act and section 111 and the compensatory character of section 

111. From the standpoint of safety, the section 103 order gave the 

Secretary immediate control of the mine, under the emergency circumstances 

of the explosion, in order to take whatever actions he deemed necessary 

in protecting lives and directing rescue and recovery operations. From 

a compensatory standpoint, that order (as the judge correctly concluded 

in his first summary decision) initiated whatever compensation was 

available under the first two sentences of section 111. The section 

107(a) order, issued one half-hour l.ater upon a finding of imminent 

danger, required the operator, for safety reasons, to withdraw the 

miners from the affected area until the Secretary determined that the 

imminent danger and its causes no longer existed. For compensation 

purposes, the imminent danger order initiated the .possibility of entitlement under the third sentence of section 111. We find nothing in the 

statute or in its legislative history to suggest that an existing section 

103 order precludes the issuance of a valid and effective section 107(a) 

order either for purposes of mine safety or compensation entitlement 

under the third sentence of section 111. !±_/ 

4/ In Roscoe Page, supra, the Board spoke to similar effect in resolving 

analogous issues under the 1969 Coal Act: 

Section 103(f) [control orders] and 104(c) [withdrawal] orders 

are designed to achieve different ends. Clearly, by its own language, 

section 103(f) operates to provide the inspector with emergency 

powers in the exigencies of a situation wherein there is a mine 

accident for the purpose of protecting the health and safety of 

persons in the coal mine. A section 104(c) order, in addition to 

protecting the health and safety of miners, operates to provide a 

sanction for a recalcitrant operator's unwarrantable failure to 

comply with the mandatory standards found in the Act and regulations. 

Further, a 104(c) order in combination with section llO(a), operates 

to provide compensation for miners forced to lose work due to this 

unwarrantable failure. The sequence of 103(f) and 104 orders bears 

no relationship to the manner in which sections 104 and llO(a) 

operate together .••• [T]he issuance of a 104(c) order, for purposes 

of section llO(a)[,] has the effect of officially idling the miners 

even though, in fact ••• they have first withdrawn in compliance 

with a 103(f) order. Ergo, the miners in 'this matter were officially 

"idled" for the purposes of section llO(a) by the 104(c) orders of 

withdrawal upon their issuance notwithstanding the prior withdrawal 

required by the 103(£) order. 

6 IRMA at 6-7. 

1326 
We therefore conclude that the chronological sequence in which the 

section 103 and 107(a) orders were issued is rtot determinative of the 

miners' right to compensation under the third sentence of section 111. 

In. light of the graduated compensation scheme of section 111, imputation 

of preclusive effect to the initial section 103 control order would 

effectively frustrate .the obvious intent of Congress to provide for 

expanded one-week compensation beyond the more limited shift compensation available under the first two sentences of the section. Stated 

otherwise, we believe that Congress did not intend section 103 control 

orders, usually issued first in time under exigent circumstances, to 

have compensation-precluding effects. The focus, as stated above, is 

upon the conduct of the operator and the conditions in the mine, not the 

sequencing of MSHA enforcement activity. 

The record in this matter is clear that the section 107(a) order 

was issued as the result of a finding of imminent danger, which required 

that the miners remain withdrawn until the imminent danger and its 

causes were determined to no longer exist. We agree with the judge 

that, for compensation entitlement under the first two sentences of 

section 111, the mine was closed "by" and the miners officially were 

idled "due to" the section 103 (j) order. We conclude, however, that for 

compensation purposes under the third sentence of section 111, the mine 

also was closed "by" and the miners also officially were idled "due to" 

the section 107(a) imminent danger order of withdrawal. In short, the 

section 103 and 107 orders operated concurrently. We reverse the judge's 

findings to the contrary. 

B. The violation of a mandatory standard 

We next address the question of whether, as the judge held, the 

section 107(a) order itself must allege, or be modified to allege, the 

violation of a mandatory standard. 

The third sentence of section 111 provides that a claim for one-week 

compensation comes into play when a mine is closed by an order issued 

under section 104 or section 107 "for a failure of the operator to 

Comply' With any mandatory health OrBafety Standards. II 30 U .S ,C. § 821 

(emphasis added). The judge adopted a restrictive interpretation of the 

term "for", holding that the section 107(a) order as issued, or as 

subsequently modified prior to its termination, must itself allege the 

violation of a mandatory standard. On review, the UMWA contends that 

the language and the legislative history of sections 104(a), 107(a) and 

111 permit the necessary allegation of violation of a mandatory standard 

to be cited under section 104 of the Mine Act independently from, and 

subsequent to, the issuance of a section 107(a) order. We agree. 

The last sentence of section 107(a) (n.2 supra) expressly states 

that the issuance of an order under that subsection "shall not preclude 

the issuance of a citation under section 104 •••• " 30 U.S.C. § 817(a). 

The legislative history of section 104(a) recognizes that occasions may 

occur "where a citation will be delayed because of the complexity of 

1327 
issues raised by the violations, because of a protracted accident investigation, or for other legitimate reasons." S. Rep. 30, reprinted in 

Legis. Hist. 618. We note also that, as the key Senate Report points 

out, the overriding purpose of an imminent danger order is the immediate 

withdrawal of miners, and that, due to the dangerous conditions giving 

rise to the order, inspection or investigation of thearea to determine 

the existence of any underlying violations may be delayed necessarily 

until long after the order was issued or until the imminent danger no 

longer exists. S. Rep. 38, reprinted in Legis. Hist. 626. 

Thus, neither the statute nor the pertinent legislative history 

requires that for the purpose of one-week compensation the violative 

conditions causing·or underlying the issuance of the section 107(a) 

order be cited in the order itself or its modification. Although it 

would have been procedurally possible, once the imminent danger and its 

causes no longer existed, for the Secretary to have modified the order 

pursuant to section 107(d), 30 U.S.C. § 817(d), and, upon completion of 

further investigation, to have cited violations under that modified 

order, we find no basis to conclude that a separately issued allegation 

of violation under section 104 is fatally defective in establishing the 

nexus between the withdrawal order and the violation of a mandatory 

standard. 

We emphasize that section 111 is premised upon a congressional 

intent to expand rather t.han contract the compensation that was available under section llO(a) of the 1969 Coal Act. A.s noted, under the 

1969 Coal Act, one-week compensation was available only for an idlement 

attributable to an unwarrantable failure order. A broader range of 

orders may trigger the same entitlement under the Mine Act. Further, 

the Senate Conference report on the bill that became the Mine Act reflects 

a broad interpretation of the word "for" by describing one-week compensation as being available "in the event the withdrawal order was the 

result of a failure of the operator to comply with a mandatory health or 

safety standard •••. 11 Conf, Rep. No. 461, 95th Cong., 1st Sess. 59 (1977), 

reprinted in Legis. Hist. 1337 (emphasis added). 

Congress could have chosen words restricting the one-week compensation entitlement in section 111 to a designated order of withdrawal 

that specifically alleged a violation of a mandatory standard, but there 

is no indication, in the legislative history or in the final language of 

the section, that it wished to do so. We reverse the judge's holding 

that violation of a mandatory standard must be alleged in a section 

107(a) order or in a modification of such order prior to its termination 

in order to initiate compensation under the third sentence of section 

111. ~../ 

5/ We find Westmoreland's reliance on Billy F. Hatfield v. Southern 

Ohio Coal Co., 4 IBMA 259 (1975), aff 1 d sub nom. District 6, UMWA v. 

IBMA, 562 F.2d 1260 (D.C. Cir. 1977), to be misplaced. In Hatfield, a 

(footnote 5 continued) 

1328 
C. Violations of standards cited in the section 104(d) 

orders 

Finally,.we turn to the question of whether the allegations of 

violation of mandatory standards contained in the section 104(d) orders 

issued to Westmoreland could constitute a nexus with the section 107(a) 

order for compensation purposes. Although conceding that "several of 

those orders cite Westmore!and for violations which may have contributed 

to the explosion" (6 FMSHRC at 2198), the judge nevertheless concluded 

that those allegations of violation could not be linked to the section 

107(a) order. 

The UMWA contends that it is irrelevant to the question of compensation that the violations of mandatory standards were cited in section 

104(d) orders, because the issue here is not the validity of those 

orders but whether the alleged violations were related to the mine 

explosion that led to the issuance of the section 107(a) order. Westmoreland notes that all of the orders were vacated and that the underlying violations were resolved in a civil penalty settlement. Westmoreland argues that no causal relationship exists between those violations 

and the section 107(a) order for purposes of the present proceeding. 

We conclude that form in which the violation of a mandatory standard 

is cited -- whether in-a:-8ection 104(d) citation or order or in a section 

104(a) citation -- is not controlling for compensation purposes. As the 

judge correctly recognized in his Decision Approving Settlement, the 

allegations of violation of mandatory standards cited in the orders 

survived his vacation of the orders themselves. 6 FMSHRC at 1270. As 

Footnote 5 end. 

case involving a one-week compensation claim under the 1969 Coal Act., 

the mine had been closed by an imminent danger order of withdrawal 

issued pursuant to section 104(a) of that Act. 30 U.S.C. § 814(a)(l976) 

(amended 1977). As already noted, under that statute, only a section 

104(c) order of withdrawal for unwarrantable failure could trigger 

one-week compensation. The UMWA attempted to show that the section 

104(a) imminent danger order actually had been based on a condition or 

practice resulting from the operator's unwarrantable failure to comply 

with a standard. The court affirmed the decision of the Board that the 

statute specifically limited one-week compensation to idlements attributable to orders issued pursuant to section 104(c). 562 F.2d at 1263-68. 

In our view, an important fact distinguishing Hatfield from the present 

issue is that in Hatfield the UMWA was attempting to usurp the prosecutory 

responsibility of the Secretary of the Interior with respect to issuance 

of a section 104(c) order, by alleging and attempting to prove unwarrantable 

failure, which could trigger compensation if appropriate. In the present 

case, the Secretary of Labor, as enforcer of the Act, has issued the 

requisite section 107(a) order capable of initiating one-week compensation and also has issued the underlying necessary allegations of 

violation • 

1329 
we have indicated, the essential question is one of causality, not 

procedural format: Was the imminent danger order issued because of 

underlying conditions involving a violation of mandatory standards? We 

conclude that the allegations of violation of mandatory standards cited 

in the vacated section 104(d) orders could provide the causal nexus with 

the section l07(a) withdrawal order as required for compensation under 

the third sentence of section 111. Tile judge's settlement decision 

states that the violations were alleged in 13 withdrawal orders all 

issued on July 15, 1982, by an MSHA inspector on the basis of his 

examination of sworn statements obtained by MSHA investigators in 

December 1980, and pertain to conditions that the inspector found 

contributed to the mine explosion of November 7, 1980. 6 FMSHRC at 

1269, 1270. In the settlement agreement, Westmoreland paid in full the 

proposed penalty assessments for five violations, and agreed to pay 

reduced penalties for the other eight violations. 6 FMSHRC at 1270-1274. 

Westmoreland's payment of civil penalties for these alleged violations 

established, for purposes of any proceeding under the Mine Act, that 

those violations of the Act occurred. See Old Ben Coal Co., 7 FMSHRC 

205, 209 (February 1985); Amax Lead Company, 4 FMSHRC 975, 977-80 (June 

1982). 

Left unresolved, however, is the specific question of whether any 

of these charges of violation of mandatory standards in fact provide the 

necessary relationship to the section 107(a) order so as to initiate 

compensation under the third sentence of section 111. Tile judge's 

decision concerning the civil penalty criteria for each of the 

subsequently alleged violations concludes only that several of the 

violations may have contributed directly to the mine explosion, while 

others probably would not have contributed to the cause of the explosion. 

6 FMSHRC at 1270-1274. 

Because the relationship or nexus between the violations of mandatory 

standards and the imminent danger order is the critical issue on which 

statutory entitlement to one-week compensation hinges, we remand to the 

Commission's Chief Administrative Law Judge for further proceedings by 

him or by another judge. Tile assigned judge may reopen the record of 

this proceeding and take whatever further action is deemed necessary to 

determine whether any bf the conditions involved in the violations of 

mandatory standards were sufficiently related to the mine explosion and 

the section 107(a) imminent danger order so as to constitute the required 

causal nexus. If such a relationship is determined, the judge shall 

take appropriate action to identify the affected miners and the amount 

of compensation due to each. !:,_/ 

6/ This case does not require us to resolve, and we intimate no views 

as to, issues concerning the technical requirements necessary for issuance 

of valid section 104(d) orders. 

1330 
III. 

Conclusion 

For the foregoing reasons, the judge's decision is reversed. This 

matter is remanded to the Chief Judge for proceedings consistent with 

this decision. J./ 

a~ A. Lastow~ommissi. oner 

'J-fx_A..-<-v !lcCv_<HJ 

L. Clair Nelson, Commissioner 

7/ Chairman Ford did not participate in the consideration or disposition 

of this case. 

1331 
Distribution 

John T. Scott, Esq. 

Timothy Biddle, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 20036 

Earl R. Pfeffer, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Debra Feuer, Esq. 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U~S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Connnission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

1332 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 9 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

R & S COAL COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. • 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 86-49 

A.C. No. 03-01599-03501 

No. 1 Mine 

DECISION 

Appearances: Max A. Wernick, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

Petitioner; Coy J. Rush, Jr., Esq., Hixon, 

Cleveland & Rush, Paris, Arkansas, for Respondent 

Before: Judge Broderick 

STATEMENT OF THE CASE 

The Secretary of Labor seeks civil penalties for six alleged 

violations of mandatory health and safety standards cited on 

October 28, 1985. Respondent contends that it.was not subject to 

the Act at the time of the alleged violations, and denies that it 

violated the standards as alleged. Pursuant to noticeu the case 

was heard on the merits on August 14, 1986 in Fort Smith, 

Arkansas. Lester Coleman testified on behalf of the Secretary. 

Ricky Brown testified on behalf of Respondent. Both parties 

waived their rights to file posthearing briefs. I have 

considered the entire record and the contentions of the parties, 

and make the following decision .. 

FINDINGS OF FACT 

1.. At all times pertinent to this pro_ceeding, Respondent 

was the operator of a surface coal mine in Sebastian County, 

Arkansas, known as the Noo 1 Mine. 

2. The mine was opened and an MSHA ID Number was issued 

about October 10, 1985. Prior to that date, Respondent had 

operated a surface coal mine in Lamar, Arkansas. Coal was last 

removed from the Lamar mine in May or June 1985. Thereafter, 

1333 
Responden~ was engaged in reclamation work at the Lamar mine, and 

it began to move its mining equipment to the No. 1 Mine. 

3. The R&S Mine at Lamar had approximately 5 to 6 employees. 

It had been inspected by MSHA since about 1980. It had first aid 

equipment at the mine, and had made arrangements for emergency 

medical and ambulance facilities at the mine. It had filed a 

copy of a ground control plan with MSHA, had sanitary toilet 

facilities and had been granted a waiver by MSHA for bathing 

facilities. A mine office was maintained at the Lamar Mine. 

4. As of October 28, 1985, no coal had been removed from 

the No. 1 ~ine. Some of the overburden covering the coal seam 

had been removed, namely part of the topsoil. Three employees 

were at the mine site on October 28, 1985 and were doing 

mechanical work on mining equipment. A caterpillar bulldozer and 

a Michigan Front End loader were on the mining property. The 

topsoil had been removed by the bulldozer, and no blasting had 

been performed as of October 28. 

5. Respondent sells its entire output of coal to the 

Arkansas Charcoal Company in Paris, Arkansas. The Charcoal is 

sold in states other than Arkansas. The subject mine produced 

about 2000 tons of coal from October 1985 to March 30, 1986 and 

4000 to 5000 tons from April to June 1986. Approximately 8000 

tons had been produced between the date the mine was opened and 

the date of the hearing. · 

6. Equipment used in the mine include .1 D-8 and 1 D-9 

Caterpillar bulldozer, a Michigan Frontend loader, a track loader 

and a John Deere Road digger. This equipment and the replacement 

parts for it were manufactured outside of the State of Arkansas. 

7. Citations were issued for safety violations at the Lamar 

plant, but there is no evidence as to their number. There have 

been no lost time accidents at Respondent's mines in the past 

four years. 

80 Prior to the time the Noo 1 Mine was opened, MSHA 

inspector Lester Coleman informed the Superintendent that he had 

to get the required paper work into the MSHA off ice. The 

Inspector gave him a packet containing instructions and the 

necessary forms. 

9. On October 28, 1985, Federal Mine Inspector Coleman 

issued Citation No. 2339807 charging a violation of 30 C.F.R. 

§ 77.1707(a) because there was no first aid equipment at the mine 

site. The equipment was located at the Lamar mine and 

Respondent's Superintendent stated that he just had not had time 

to transfer it to the No. 1 Mine. The citation was terminated 

1334 
October 30, 1985 when the first aid equipment was brought to the 

mine site. 

10. On October 28, 1985, Inspector Coleman issued Order No. 

2339810 charging a violation of 30 C.F.R. § 77.1702(a) because 

Respondent failed to make arrangements for 24-hour emergency 

medical assistance for any person injured at the mine. Such 

arrangements were effected on October 29, 1985, and the order.was 

terminated on October 300 

11. The subject mine was located in a remote area, but 

there was a medical clinic located in a town 5 miles away, and 

another 15 mines away. 

12. On October 28, 1985, Inspector Coleman issued order 

2339811, charging a violation of 30 C.F.R. § 77.1702(b) because 

Respondent failed to make arrangements for ambulance service or 

otherwise provide for 24-hour emergency transportation. The 

order was terminated October 30, 1985, when Respondent made 

arrangements for 24-hour emergency transportation. 

13. On October 28, 1985, Inspector Coleman issued citation 

2339812 because Respondent did not file a copy of the ground 

control plan for the subject mine with MSHA. Respondent's 

superintedent stated that he was unaware of the requirement that 

the ground control plan be filed. The citation was terminated 

when the plan was filed on October 30, 1985. 

14. On October 28, 1985, Inspector Coleman issued citations 

2339813 and 2339814 because Respondent did not provide bathing 

facilities or sanitary toilets for the miners, and because it did 

not maintain a mine off ice at the mine site. These citations 

were terminated on October 29, 1985 when Respondent provided a 

sanitary toilet at the mine, and applied for a waiver of the 

bathing facilities requirement. 

ISSUES 

1. Whether Respondent is subject to the provisions of the 

Mine Safety Act in the operation of its No. 1 Mine? 

2. Whether Respondent violated the safety standards as 

alleged, and if it did, what are the appropriate penalties for 

the violations. 

CONCLUSIONS OF LAW 

1. Respondent was at all times pertinent to this proceeding 

subject to the provisions of the Act, and I have jurisdiction 

over the parties and subject matter of this proceeding. 

1335 
Section 4 of the Act provides that each mine, the products 

of .which enter commerce, or the operations or products of which 

affect commerce is subject to the Act. The fact that 

Respondent's coal is sold entirely intrastate does not remove it 

from the Act's requirements. See Wickard v. Filburn, 317 U.S. 

111 (1942); Marshall v. Bosak, 463 F. Supp. 800 (E.D. Pa. 1978); 

Secretary v. Valley Limestone Co., 4 FMSHRC 357 (1982) (ALJ). 

Respondent used substantial amounts of equipment which originated 

out of state. Its products, although originally sold intrastate, 

were ultimately used both intrastate and out of state. The 

evidence clearly establishes that its operations affect 

interstate pommerce. 

2. The violations cited are not seriously disputed. I 

conclude that the six violations involved in this proceeding 

occurred. 

3. The failure to have the required first aid supplies and 

equipment at the mine site, the failure to make arrangements for 

emergency medical care and the failure to make arrangements for 

ambulance service are all moderately serious violations under the 

circumstances of this case. Each of these violations could have 

resulted in serious injuries to miners. 

4. Each of the six violations involved herein resulted from 

Respondent's negligence. It knew or should have known of the 

requirements of the Act and the regulations, and failed because 

of carelessness to take the necessary steps to avoid the 

violations. 

5o Respondent is a small operator, does not have a 

significant history of pervious violations, and promptly abated 

the violations after being cited. 

ORDER 

Based on the above findings of fact and conclusions of law, 

and considering the criteria in section llOCi> of the Act, I 

conclude that the following penalties are appropriate. 

CITATION/ORDER 

2339809 

2339810 

2339811 

2339812 

2339813 

2339814 

1336 

PENALTY 

$ 150 

150 

150 

50 

30 

30 

$ 560 
ORDER 

Respondent is ORDERED to pay within 30 days of the date of 

this decision $560 as civil penalties for the violations found 

herein. 

~k!Jmk~i (} . James A. Broderick · Administrative Law Judge 

Distribution: 

Max A. Wernick, Esq., U.S. Department of Labor, Office of the 

Solicitor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Coy J. Rush, Jr., Esq., Hixson, Cleveland & Rush, P.O. Drawer 

607, Paris, AR 72855 (Certified Mail> 

slk 

1337 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINlSTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 9 1986 

TED V. DALTON, ET AL., 

Complainants 

. . COMPENSATION PROCEEDING 

v. 

PEABODY COAL COMPANY, 

Respondent 

: 

. . 

Docket No. KENT 86-11-C 

Camp No. 2 Mine 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On September 4, 1986, the UMWA on behalf of the complainants 

filed a Motion to Withdraw the complaint for compensation 

on the ground that the complainants have been compensated 

each in the amount of $21.69 for the loss of pay claimed on 

August 9, 1984. 

Premises considered, the Motion is GRANTED, and this 

proceeding is DISMISSED. 

U'-8~1/~ mes A. Broderick 

ministrative Law Judge 

Distribution: 

Joyce A. Hanula, Legal Assistant, United Mine Workerp of 

America, 900 15th St., N.W., Washington, D.C. 20005 (Certified 

Mail) 

Michael A. Kafoury, Esq., Peabody Coal Co .. , P.O. Box 373, 

St. Louis, MO 63166 (Certified Mail) 

slk 

1338 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 SEP 9 198.6 

EMERY MINING CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EMERY MINING CORPORATION, 

Respondent 

. . 

: 

. . 

. . 

. 

0 

: 

CONTEST PROCEEDINGS 

Docket No. WEST 83-6-R 

Citation 9946565; ~/13/82 

Docket No. WEST 83-7-R 

Citation 9946569; 9/17/82 

Docket No. WEST 83-8-R 

Citation 9946571; 9/21/82 

: Deer Creek Mine . . 

. . 

: 

: 

. . 

: 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 83-33 

A.C. No. 42-00080-03510 

Docket No. WEST 83-36 

A.C. No. 42-00080-03511 

Docket No. WEST 83-51 

A.C. No. 42-00080-03515 

Wilberg Mine 

Docket No. WEST 83-34 

: A.C. No. 42-00121-03509 

: 

. . 

Docket No. WEST 83-42 

A.C. No. 42-00121-03507 

Docket No. WEST 83-57 

A.C. No. 42-00121-03519 

Deer Creek Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Carlson 

These consolidated cases have been on stay pending the 

issuance of a Conunission decision bearing upon a principal 

issue in the cases. The Conunission has now issued that decision, 

and the parties have submitted a joint motion to approve a 

settlement which will dispose of all matters. 

1339 
Specifically, Emery Mining Corporation agrees to pay the 

entire civil penalty proposed by the Secretary in each of the 

penalty cases. 

Further, conditioned upon the Commission's approval of 

that part of the settlement relating to the penalty cases, Emery 

also moves to withdraw its notices of contest in the three contest cases shown in the caption. 

Based upon the representations of the parties and the contents 

of the files, I conclude that the settlement is appropriate and 

should be approved in all respects. 

Accordingly the settlement agreement (including the withdrawals} is approved in all respects and the attendant motions 

are granted •. Respondent shall therefore pay a total civil penalty . of $2,070.00 within 40 days of the date of this decision approving 

settlement. These proceedings are dismissed. 

Distribution: 

·~/1~~ / ohn (~£tarlson ( 

///Administrative Law Judge 

v 

Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut Ave., 

N.W., Washington, D.C. 20036 (certified Mail) 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

Colorado 80294 (Certified Mail) 

/ot 

1340 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 9 1986 

MARTHA PERANDO, 

Complainant 

v. 

. . 

. . 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. YORK.85-12-D 

MSHA Case No. MORG CD 85-17 

METTIKI COAL CORPORATION, . . Respondent . . 

DECISION 

Before: Judge Melick 

Pursuant to the decision in these proceedings dated 

August 12, 1986, the parties have submitted stipulations of 

damages, costs and interest. Accordingly the Mettiki Coal 

Corporation is ordered to pay to Complainant Martha Perando 

the amount of $2,351.30 in back pay within 30 days of the 

date of this decision plus interest to the date of payment 

computed in accordance with the formula set forth in Bailey 

v. Arkansas Carbona, Co., 5 FMSHRC 2042 (1983), plus costs of 

$50. . 

This decision constitutes the final 

these proceedings before this judge. 

Distribution: 

i Gary M 

Admini 

Martha Perando, P.O. Box 3012, Deer 

Mial) 

550 (Certified 

Timothy Biddle, Esq., and Lisa B. Rovin, Esq., Croweil & 

Moring, 1100 Connecticut Avenue, N.W., Washington, DC 20036 

(Certified Mail) 

rbg 

1341 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 101986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

RONNIE D. BEAVERS, 

DONALD L. BROWNING, 

ROBERT L. CARPENTER, 

EVERETT D. CURTIS, 

LARRY L. EFAW, 

ROGER LEON ERWIN, 

CHARLES.W. FOX, 

LESTER D. FREEMAN, 

LARRY F. HUFFMAN, 

HARRY EDWIN HURST, 

ROBERT HURST, 

GARY C. KNIGHT, 

LARRY LANTZ, 

DAVID R. MARTIN, 

MICHAEL L. MARRA, 

WILFORD MARSH, JR., 

DANNIE M. MAYLE, 

CHARLES W. McGEE, 

CHARLES F. MURRAY, 

WALTER F. MURRAY, 

LARRY NORRIS, 

CLARA Y. PHILLIPS, 

KENNETH D. SHOCKEY, 

RICHARD D. SNIDER, 

JESSE L. WARD, 

BEDFORD WILFONG, JR., 

Complainants 

v. 

KITT ENERGY CORPORATION, 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA, 

. . 

. . 

. . 

Intervenor ; 

1342 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 8 73-D 

MORG CD 84-1 

Kitt No. 1 Mine 
Appearances: 

Before: 

DECISION 

Frederick W. Moncrief, Esq., Office of the 

Solicitor, U. s. Department of Labor, Arlington, Virginia, for Complainants; 

B. K. Taoras, Esq., Kitt Energy Corporation, 

Meadow Lands, Pennsylvania, for Respondent; 

Mary Lu Jordan, Esq., United Mine Workers of 

America, Washington, D.C., for Intervenor. 

Judge Maurer 

STATEMENT OF THE CASE 

This case is before me upon stipulated facts for a ruling 

on Cross Motions for Summary Decision, filed pursuant to 29 

C.F.R. § 2700.64. 

The issue presented is whether Kitt Energy Corporation 

(hereinafter referred to as "Kitt") violated section lOS(c) 

of the Federal Mine Safety.and Health Act of 1977; the "Act", 

30 u.s.c. § 815(c), when it laid-off the complainants, who 

were surface miners, 1 notwithstanding their seniority and 

technical ability to perform the remaining underground jobs 

available, solely because they required additional training 

under 30 C.F.R. Part 48 before they could perform those underground jobs for which they were otherwise qualified and 

entitled to. 

At the time of the layoffs herein, Kitt was a party to 

the National Bituminous Coal Wage Agreement of 1981 (the 

"Agreement"). The Agreement provides in relevant part that 

in the case of a reduction in work force, "[e]mployees with 

the greatest seniority at the mine shall be retained provided that they have the ability to perform available work." 

However, section 115 of the Act, 30 u.s.c. § 825, and 30 

C.F.R. Part 48 (the "Regulations") prescribe certain training which miners must receive before they can perform underground mining jobs. 

Kitt took the position that although these complainants 

could have become qualified by receiving the appropriate 

training, the fact was that they did not have the qualifications to step in and perform the work at the time and, 

therefore, less senior employees who had the requisite 

training were given those positions. It is not disputed 

that had the terms of the Agreement been applied without 

regard to the federal training requirements, the complainants 

would not have been laid off. 

1343 
The complainants contend that Kitt violated the Act 

when it discriminated among its employees on the basis of 

their need for statutorily mandated training. They contend 

that it was Kitt•s responsibility to provide the training 

required by the Act and the Regulations and that by distinguishing between miners on the basis of their need to 

receive mandatory training thereby discriminated against 

those miners who were laid off solely as a result of the 

applicatinn of the training requirements. 

STATUTORY AND REGULATORY PROVISIONS 

Section llS(a) and (b) of the Act provide as follows: 

(a) Each operator of a coal or other mine 

shall have a health and safety training program which shall be approved by the Secretary. 

The Secretary shall promulgate regulations 

with respect to such health and safety training program not more than 180 days after the 

effective date of the Federal Mine Safety and 

Health Amendments Act of 1977. Each training 

program approved by the Secretary shall provide 

as a minimum that--

(1) new miners having no underground mining experience shall receive no less than 40 

hours of training if they are to work underground. Such training shall include instruction in the statutory rights of miners and 

their representatives under this Act, use of the 

self-rescue device and use of respiratory devices, hazard recognition, escapeways, walk 

around training, emergency procedures, basic 

ventilation, basic roof control, electrical 

hazards, first aid,,and the health and safety. 

aspects of the task to which he will be assi'gned: 

(2) new miners having no surface mining 

experience shall receive no less than 24 hours 

of training if they are to work on the surface. 

Such training shall include instruction in the 

statutory rights of miners and their representatives under this Act, use of the self-rescue device where appropriate, hazard recognition, 

emergency procedures, electrical hazards, first 

aid, walk around training and the health and 

safety aspects of the task to which he will be 

assigned; 

(3) all miners shall receive no less than 

eight hours of refresher training no less frequently than once each 12 months, except that 

miners already employed on the effective date 

1344 
of the. Federal Mine Safety and Health Amendments 

Act of 1977 shall receive this refresher training 

no more than 90 days after the date of approval 

of the training plan required by this section; 

(4) any miner who is reassigned to a new 

task in which he has had no previous work experience shall receive training in accordance with a 

training plan approved by the Secr.etary under this 

subsection in the safety aI}d health aspects 

specific to that task prior to performing that 

task; 

(5) any training required by paragraphs (1) , (2), or (4) shall include a period of training as 

closely related as is practicable to the work in 

which the miner is to be engaged. 

(b) Any health and safety training provided under 

subsection (a) shall be provided during normal 

working hours. Miners shall be paid at their 

normal rate of compensation while they take such 

training, and new miners shall be paid at their 

starting wage rate when they take the new miner 

training. If such training shall be given at a 

location other than the normal place of work, 

miners shall also be compensated for the additional costs they may incur in attending such 

training sessions. 

Section 3(g) of the Act provides: 

For the purpose of this Act, the term--

* * * 

"miner" means any individual working in a 

coal or other mine •••• 

30 C.F.R. § 48 •. 2,:prm.tides~i.n pertinent pa:r;t: 

§ 48.2 Definitions 

For the purposes of this Subpart A--

* * * 

(b) "Experienced miner" means a person who 

is employed as an underground miner ••• on the 

effective date of these rules; or a person who 

has received training acceptable to MSHA from an 

appropriate State agency within the preceding 12 

1345 
months; or a person who has had at least 12 

months exp·~rience working in an underground 

mine during the preceding 3 years; or a person 

who has received the training for a new miner 

within the preceding 12 months as prescribed 

in §48.5 (Training of new miners) of this Sub 

part A. 

(c) "New miner" means a miner. who is not 

an experienced miner. 

STIPULATIONS 

I accept the following stipulations of the parties and 

find same as the facts upon which thi.s decision is based. 

1. Complainants were employed as su~face or underground miners by Kitt Energy Corporation at the Kitt Mine 

until their layoffs on either August 29, 1983, or September 6, 1983, as indicated for each complainant in Exhibit 

"C". 

2. Respondent, Kitt Energy Corporation, is the owner 

and operator of the Kitt Mine at Philippi, West Virginia, 

an underground coal mine having Federal Mine I.D. No. 

46-04168. 

3. The parties hereto and the Kitt Mine are subject 

to the jurisdiction of the Federal Mine Safety and Health 

Act of 1977. 

4. The United Mine Workers of America (UMWA) is the 

collective bargaining representative for certain employees 

at the Kitt Mine and is a representative of miners for the 

complainants for purposes of the Federal Mine Safety and 

Health Act of 1977 and this proceeding. 

5. At all times relevant to this proceeding, the UMWA 

and Kitt Energy Corporation were parties to the National 

Bituminous Coal Wage Agreement of 1981. 

6. On or about August 25, 1983, Mr. Donald Jones of 

Kitt Energy Corporation contacted MSHA for information regarding when a miner is considered "experienced" under M~HA's training regulations, located. at 30 C.F.R. § 48.1 

et seq. He was advised that.the designation of "experienced underground miner" or "experienced surface miner" 

could be obtained by working at least 12 of the preceding 

36 months in underground or surface positions respectively, 

or by receiving the appropriate training under 30 C.F.R. 

§ 48.1 et seq. The MSHA representative did not mention 

1346 
nor was he asked specifically about the "grandfathering" 

provisions of the regulations. MSHA's definition of the 

term "experienced miner" for purposes of underground work, 

is found at 30 C.F.R. § 48.2(b). MSHA's definition of 

"experienced miner" for purposes of surface work, is found 

at 30 C.F.R. § 48.22(b). 

7. On August 29, 1983, mine management invoked a reduction and realignment of the work force pursuant to 

Article XVII of the Wage Agreement. The work force was 

reduced from 565 to 210, resulting in the layoff of 355 

persons. This caused a reduction in the number of surface 

positions from 91 to 59. 

8. In determining which employees would be retained 

in the available jobs, mine management was bound by the 

Wage Agreement and the realignment procedure of Article 

XVII. A criterion applied by mine management to Article 

XVII to determine qualifications {ability to step in and 

perform the work of the job at the time) was that a miner 

have the appropriate experienced miner designation. For 

qualification purposes, only "experienced underground 

miners" were considered able to step in and perform the 

work of the underground positions at the time and only 

"experienced surface miners" were considered able to step 

in and perform the work of surface positions. The terms 

"experienced surface miners" and "experienced underground 

miners" were given the same meanings as defined in 3b C.F.R. 

§ 48.22(b) and 48.2(b), respectively. 

9o Management's use of the appropriate "experienced 

miner" designation as mentioned in paragraph 5 to determine 

job qualification at Kitt Mine was held not in violation of 

the Wage Agreement.by Arbitrator Roger C. Williams in a 

decision dated February 24, 1984. 

10. The following complainants were among those who 

were laid off on August 29, 1983: 

Jesse L. Ward 

Robert Hurst 

Larry Norris 

Harry Edwin Hurst 

Larry Lantz 

Charles McGee 

11. Prior to and at the time of the August 29 reduction 

and realignment of the work force, complainants, J. Ward, 

L. Lantz, and c. McGee, were working at surface positions at 

the Kitt Mine and were "experienced surface miners" as defined in§ 48.22(b). They were not "experienced underground 

miners" as that term is defined in§ 48.2(b). 

1347 
12. Prior to and at the time of the August 29 reduction 

and realignment of the work force, complaina~ts H. Hurst, R~ Hurst, and L. Norris were working at surface positions at 

the Kitt Mine and were experienced surface miners within the 

meaning of 30 C.F.R. § 48.22(b). They also happened to be 

experienced underground miners within the meaning of 30 C.F.R. 

§ 48.2(b) because of the grandfathering aspect of the provision. Nevertheless, they were laid off because of a lack 

of knowledge of the grandfathering provision in the training 

regulations. 

13. 

The work 

ployees. 

tions. 

On September 6, 1983, a second realignment occurred. 

force was reduced from 210 to 167 classified emSurface positions were reduced from 59 to 15 posi14. The same criteria to determine qualification for 

job placement were used as for the August 29 realignment, 

however, ·the "grandfathering" misunderstanding had been resolved and those who were "grandfathered" were treated as 

experienced miners. 

15. On September 6, 1983, the following complainants, 

who had been working at surface positions at the Kitt Mine 

and who were "experienced surface miners" as defined in 

§ 48.22(b), were laid off because there was an insufficient 

number of job openings in surface occupations, and they did 

not have the ability to step in and perform underground 

work because they were not "experienced underground miners" 

within the meaning of 30 C.F.R. § 48.2(b): 

Huffman 

Wilfong 

Shockey 

Marsh 

Martin 

W. Murray 

G. Knight 

Marra 

Erwin 

Curtiss 

Carpenter 

Mayle 

Efaw 

C. Murray 

Fox 

Beavers 

Freeman 

Browning 

Snider 

Phillips 

16. Had management, on August 29, 1983, and September 6, 1983, applied the terms of the collective bargaining 

agreement, without regard to the application of 30 C.F.R. 

§ 48, the complainants would not have been laid off and 

would have been placed in the remaining jobs according to 

Article XVII of the Wage Agreement. 

17. The complainants had the technical ability to 

perform the jobs that were available at the Kitt Mine after 

the reduction and realignment of the work force that occurred on August 29 and September 6, 1983. 

1348 
18. But for the complainants not being "experienced 

underground miners 11 as defined in§ 48.2(b), they would not 

have been laid off on either August 29 or September 6, 1983. 

19. Although the complainants were not considered "experienced underground miners" under MSHA's regulations, each 

complainant except Efaw had worked underground at the Kitt 

Mine prior to taking a surface job. Mr. Efaw had no underground employment with Kitt Energy prior to October 1983, 

but had underground experience elsewhere. 

20. Exhibit "C" contains information pertinent to each 

complainan~: name; employee number; seniority date and number; date laid off and the number of days of work missed; 

job title prior to layoff; recall date; job title upon recall and classification rate; amount of training received 

and experienced miner designation. 

21. All the complainants would have been retained in 

jobs had they been experienced underground miners within the 

meaning of 30 C.F.R. § 48.2(b). · 

22. On or about September 7, 1983, MSHA advised Kitt 

that the layoff procedure conflicted with MSHA's training 

requirements and those employees who were laid off because 

of training would have to be recalled even if it meant 

"bumping" less senior employees who had been retained. No 

citations were issued. Mine management disagreed with 

MSHA's position; however, management did as MSHA requested 

in order to limit the exposure to potential penalties and 

damages. 

23. On September 13, 1983, complainant, R. Beavers, 

was recalled to an outside position. He started work that 

day without any further training. 

24. On September 14, 1983, Kitt recalled the complainants and gave them the training required to satisfy 

the vi experienced" designation within the . meaning of 3 0 

C.F.R. § 48.2(b). 

25. All training was provided by Kitt. All employees 

were paid for time spent in training at the rate for the 

job to which recalled. · 

DISCUSSION AND FINDINGS 

The facts in this case are not in dispute. The law in 

this area, however, is just now evolving. Three cases; in 

particular, are important to an analysis of the issue herein. 

1349 
The first of these is Secretary of Labor, on behalf of 

Bennett, et al. v. Emery Mining Corp., 5 FMSHRC 1391 (1983}, 

enforcement denied sub nom. Emery Mining Corp. v. Secretary 

of Labor, 783 F.2d 155 (10th Cir. 1986). This case arose 

as a result of a change in the hiring policy at the Emery 

Mining Corporation. Under the new policy, effective January 1, 1980, Emery required completion of 32 of the 40 

hours of safety training for underground miners mandated by 

section llS(a) of the Act as a pre-condition of employment. 1/ 

Furthermore, Emery did not reimburse those individuals who 

were eventually hired as miners either for the cost of the 

training or pay wages for the hours spent in obtaining it. 

As a result, the Secretary filed a complaint of discrimination with the Commission against Emery on behalf of 

twelve Emery employees, each of whom had been hired after 

January 1, 1980, and each of whom had personally paid for 

their own training prior to being employed by Emery as a 

miner. The Commission administrative law judge found that 

Emery's policy of requiring job applicants to obtain the 32 

hours of miner training at their own expense as a precondition for employment interferred with their right to 

receive such training because the Act places the responsibility for miner's training on the operator, and therefore 

discriminated against them in violation of section lOS(c) 

of the Act. The Commission affirmed the judge's finding 

that Emery violated the Act by refusing to reimburse the 

complainants after they were hired for wages for the time 

spent in training and the cost of their training. However, 

the Commission disagreed with the judge's conclusion that 

Emery's policy of requiring the training as a pre-condition 

of employment violated the Act. In so holding, the Commission stated that although once hired, these complainants 

became new miners under the Act and entitled to the rights 

contained in sections llS(a) and (b), nothing in that section dictates whom an operator should hire. An employer 

has the right to choose its own employees. 

On appeal from the order of the Commission, Emery 

contended that the Act requires compensation only for those 

individuals who receive tra1ning while they are miners and 

not those who receive that training prior to becoming 

miners. The United States Court of Appeals for the .Tenth 

Circuit denied enforcement of the Commission's order holding that "because the complainants were not miners as defined by the Act, they are not entitled to compensation 

for the 32 .hours of training they voluntarily undertook, 

'lost wages,' and other expenses incurred in completing the 

training program." Emery, 783 F.2d at 158. 

1/ Emery supplied the 8 hours of mine-specific training 

required by section llS(a) (5) and 30 C.F.R. § 48.S. 

1350 
The court also held that "the Commission properly found 

that Emery's pre-employment policy of requiring 32 hours of 

training did not violate the Act." Emery, 783 F.2d at 159. 

The next cases concerning a similar issue to be decided 

by the Commission were both handed down on September 30, 

1985, while their decision in Emery, supra, was still pending in the Tenth Circuit. United Mine Workers of America 

on behalf of Rowe, et al. v. Peabody Coal Co., 7 FMSHRC 1357 

(1985) , appeal docketed sub nom. UMWA on behalf of Rowe, et 

al. v. FMSHRC, Nos. 85-1714, et al. (D.C. Cir. Oct. 1985); 

and Secretary of Labor on behalf---Of Acton, et al. v. ~ 

Walter Res.ources, Inc., 7 FMSHRC 1348 (1985), appeal docketed sub nom. Secretary of Labor on behalf of Acton, et al. 

v. Jim""'Walter Resources, Inc. and FMSHRC, No. 86-1002 (D.C. 

Cir. Jan. 1986). In both of these cases, the issue presented for decision was whether an operator violated section 

105(c) of the Act when it bypassed for rehire a laid-off 

individual because that person lacked the health and safety 

training specified in section 115 of the Act and 30 C.F.R~ 

Part 48. 

In the Peabody case, the Commission's chief administrative law judge found that laid-off miners were "miners" 

within the meaning of the Act and that therefore it was 

Peabody's responsibility to provide the training required by 

section 115 and Part 48 after rehire and that by denying 

recall because they were not trained, Peabody violated 

section 105(c) (1) of the Act. Because the Act does not 

specifically address the issue of the laid~off miner, the 

judge looked to the parties' collective bargaining agreement 

and concluded: 

[TJhe rights accorded a laid off miner under 

the collective bargaining agreement contain 

indicia of an ongoing employment relationship 

sufficient for him to be considered a miner 

within the purview of section 115 and 105(c) 

of the Act. 

6 FMSHRC at 1648. 

The Commission disagreed and reversed. Consistent 

with their holding in Emery, they stated that section 115 

does not dictate to operators whom they must recall any 

more than it dictates whom they must hire. That it is 

upon being rehired that laid-off miners once again become 

"miners" within the meaning of the Act and at that point 

again become entitled to the rights granted by section 115. 

Therefore, since there was no statutory right to training 

1351 
for those persons in a layoff status, Peabody's policy 

requiring them to obtain training prior to rehire does not 

violate section lOS(c) of the Act. 

In reaching this conclusion, the Commission went on to 

add that: 

[T]he Mine Act is not an employment statute. 

The Act's concerns are the health and the 

safety of the nation's miners. Those individuals employed at a mine are to be trained before they begin work so that once they begin 

work accidents are less likely to occur. 

7 FMSHRC at 1364. 

The facts of the Jim Walter case are very similar to 

Peabody, i.e., the alleged discrimination occurred when the 

operator recalled laid-off miners who had terms of company 

service shorter than the complainants, but who, unlike the 

complainants, had completed the underground safety training 

required by section 115 of the Act. The administrative law 

judge in Jim Walter held that the operator did not violate 

section lOS(c) of the Act by requiring laid-off individuals 

to obtain the training as a.condition of recall, holding 

that it was "immaterial whether the affected applicants for 

employment are strangers to the industry and the employer, 

as in the Emery case, or are former employees awaiting ••• 

recall. ••• II 6 FMSHRC at 2453. ' 

The Commission, consistent with their decisions in 

Peabody and Emery, affirmed. 

Turning now to apply the facts of the instant case, as 

stipulated herein, to the existing law, it seems to me that 

several issues are now well settled by the decisions and do 

not require further analysis. Among these are that section 

115 of the Act and Part 48 of the Regulations set forth certain mandatory training requirements for 11miners 11 , and it 

is the operator's responsibility to provide and pay for 

that training. Furthermore, section 105(c) prohibits 

denial of, or interference with, these training rights 

granted to 11miners" by section 115. 

The complainants herein were "miners" who were laidoff from surface mining posit;i_ons as a result of the operator reducing and realigning its work force. At the time 

of the layoffs, the Agreement provided that more senior 

employees whose positions were eliminated could bump less 

senior employees, if the more senior employee had the 

ability to step in and perform the work of that job at the 

1352 
time. These complainants had a greater length of service 

with the company than some of the employees who were retained, but although they had each· spent some time previously as underground miners, they had spent the last few 

years in surface mining positions. The remaining available 

jobs and those that are at issue in this case, however, were 

all underground jobs and thus these individuals would have 

had to be provided with the mandated safety and health 

training before they could perform those jobs, or have 

otherwise been designated 11 experienced underground miners" 

by the grandfathering provision of the Regulations. 

The operator maintains that "the ability to step in 

and perform the job at the time" means that the miners in 

question in this case must have been "experienced underground miners" as defined in 30 C.F.R. § 48.2(b}. As a 

practical matter, these complainants could have become 

qualified by receiving the appropriate training and therefore their layoff resulted solely from the fact that they 

lacked this training. In fact, three of the complainants· 

herein, Harry Hurst, Robert Hurst, and Larry Norris, did 

not even require the new miner training as they were "experienced underground miners" by virtue of the grandfathering 

provision contained in 30 C.F.R. § 48.2(b), but were laidoff anyway because the operator mistakenly believed they 

did. 

Complainants herein contend that their layoff violated 

section 105(c) of the Act because it interfered with their 

statutory right, under section 115, to be provided whatever safety and health training they needed at operator 

expense. They claim that the operator discriminated 

against them by distinguishing between its employees ( 11miners") on the basis of their need to receive mandatory 

training under the Act. 

The operator r~lies on the Tenth Circuit decision in 

Emery and the Commission decisions in Peabod~ and Jim 

Walter for support for its interpretation of sections 115 

and 105 of the Act. However, those cases involved applicants for employment, "strangers" to the industry and the 

employer (Emery) , or laid-off employees (Peabody and 

Jim Walter). In my opinion the instant ·case is distinguishable from those because this case involves "miners" who 

were on "active duty11 so to speak at the time the conduct 

complained of occurred. The complainants in the aforementioned cases were unemployed, at least initially, for reasons totally unrelated to the training requirements of the 

Act, albeit those requirements were the reason the operators 

did not hire or rehire them. Whereas, herein the lack of 

the required training was the precipitating cause of the 

complainants' unemployment. 

1353 
The fact that all the employees of Kitt who were considered for the layoff were "miners" within the meaning of 

the Act at the time the operator picked and chose among 

them based on the federal training requirements is a critical distinction and is decisive in this case. As "miners", 

the complainants herein were entitled to be provided whatever training was required under section 115. By laying off 

these complainants rather than providing the required training, the operator interfered with their statutory right to 

training under section 115. The insistence of the complainants on their right to be provided this training by 

the operator of the mine where they work is activity protected by the Act. Therefore, I find that the operator 

discriminated against the complainants by violating their 

statutory rights regarding training, as alleged. 

Kitt is apparently attempting to use the Agreement's 

definition of seniority 2/ to justify its actions against 

these complainants. While it is plainly not the function of 

this Commission to interpret that Agreement, I note that 

even if their interpretation of the contract is correct, if 

it conflicts with the statutory requirements of the Mine 

Safety Act, it is the Act that must prevail. The complainants possess rights which are accorded under section 115 

of the Mine Act and which are protected under section lOS(c) 

of that Act, irrespective and independently of any rights 

they may or may not have under the terms of their labor 

contract. The Agreement is only significant in this case to 

the extent tnat it is undisputed that by its terms, the 

complainants herein would not have been laid-off, but for 

their lack of health and safety training. 

Finally with regard to the three miners, Harry Hurst, 

Robert Hurst, and Larry Norris, who were mistakenly treated 

as inexperienced miners and laid off, the operator urges 

that they have no claim at all under the Act. I disagree. 

Although unlike the other complainants herein, they did not 

in fact require new miner training, the operator laid them 

off based solely on the mistaken belief that they did. 

Therefore, I conclude that the operator discriminated 

against them on the basis of their perceived lack of federally mandated training and I find that likewise impermissible and a violation of section 105(c) of the Act. The 

fact that the operator was mistaken did not change the 

2/ The collective bargaining agreement defines the term 

seniority as "length of time in service 11 and "the ability 

to step into and perform the work of the job at the time 

the job is awarded." 

1354 
consequences suffered by the three miners. As the Commission has stated in an earlier discrimination case "[a]n 

equally important consideration is that an affected miner 

suffers as much by mistake as he would if he were discriminated against because he had actually engaged in protected 

activity. We conclude that discrimination based upon a 

suspicion or belief that a miner has engaged in protected 

activity, even though, in fact, he has not, is proscribed 

by section 105(c) (l)". Moses v. Whitley Development Corp., 

4 FMSHRC 1475, 1480 (1982). 

Having considered the arguments of all the parties 

herein on the stipulated facts, I conclude that an order 

should be entered in favor of all the complainants granting 

the relief they seek. 

ORDER 

It is ORDERED that the complaint of discrimination be 

ALLOWED. 

It is FURTHER ORDERED that the parties, by counsel, 

communicate for the purpose of stipulating the amounts of 

monetary relief due each of the named complainants, as well 

as attorney fees that may be awarded to counsel for Intervenor and file such stipulation with me on or before 

October 20, 1986. 

It is FURTHER ORDERED that if agreement cannot be 

reached on monetary relief or attorney fees, the parties 

notify me of the same on or before October 20, 1986. 

Finally, I note that the Act provides that any violation of the discrimination section shall be subject to the 

provisions of section 108 and llO(a). Therefore, it is 

FURTHER ORDERED that on or before October 20, 1986, the 

respondent pay a civil penalty of $1,000 for violating 

section 105(c) of the Act. 

aurer 

'rative Law Judge 

1355 
Distribution: 

Frederick w. Moncrief, Esq., Office of the Solicitor, u. s. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) · 

B. K. Taoras, Esq., 455 Race Track Road, Meadow Lands, PA 

15347 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 

15th St., NW, Washington, DC 20005 (Certified Mail) 

yh 1356 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 SEP 111986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

NELSON TRUCKING, 

Respondent 

. . CIVIL PENALTY PROCEEDING 

Docket No. LAKE 85-102-M 

A.C. No. 47-02575-05501 

Pit No. 6 Mine 

DECISION 

Appearances: Miguel J. Carmona, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, 

for Petitioner; 

Mr. Kenneth M. Nelson, Nelson Trucking Company, 

Green Bay, Wisconsin, Ero se. 

Before : Judge Lasher 

A hearing on the merits was held in Green Bay, Wisconsin, 

on August 13, 1986. After consideration of the evidence submitted and both parties agreeing, a decision on the record was 

entered at the conclusion of the hearing. This bench decision 

appears below as it appears in the official transcript aside 

from minor corrections. 

This matter arose upon the filing of a petition for assessment of penalty by a document entitledu "Proposal for a Penalty" 

by the Secretary of Labor (herein Secretary) on October 21, 1985, 

pursuant to Section llO(a) of the Federal Mine Safety and Health 

Act of 1977, 30 U. S .c. § 820 (a) (herein the Act). The Secretary 

charges the Respondent with violating 30 C.F.R. § 56.9087 which 

provides: "Heavy duty mobile equipment shall be provided with 

audible warning devices. When the operator of such equipment 

has an obstructed view to the rear, the equipment shall have 

either an automatic reverse signal alarm which is audible above 

the surrounding noise level or an observer·to signal when it is 

safe to back upo 11 

For purposes of this proceeding, I accept the definition 

of "audible" contained in the Random House College Dictionary 

(1980 Revised Edition) as being both a reasonable, common sense, 

and commonly accepted indication of meaning: "actually heard or 

capable of being heard: loud enough to be heard." The concept 

of this definition will be incorporated into the regulation cited 

by the Secretary herein. 

1357 
The Citation (Number 2374053) issued by MSHA Inspector Arnie 

Mattson on July 10, 1985, at Respondent's mine (Pit Number 6) 

charges that Respondent infracted the above-quoted regulation by 

engaging in the following condition or practice: "The 120 Hough 

International front-end loader has a back-up alarm, but it can't 

be heard above the surrounding noise. The loader was observed 

loading a truck with no foot traffic." 

The matter, after being duly noticed, came on for hearing 

in Green Bay, Wisconsin, on August 13, 1986. The Secretary was 

represented by counsel, and the Respondent was represented by 

Mr. R. J. Bruno, a consultant who is not a lawyer. The Secretary 

presented Inspector Arnie Mattson as its only witness, and Respondent called two .witnesses, Charlie Stauber, a crusher operator who was present on the mine premises at the time and place 

the alleged infraction occurred, and Perry Pautz, the owner of 

the pit. 

Although not specifically raised by Respondent at the hearing, 

a preliminary matter should be dealt with which was raised by the 

Respondent in a letter dated February 21, 1986, which was signed by 

Kenneth M. Nelson. This letter indicates that: 

"Previous to the start of operation last 

spring, we asked for and were given a complimentary inspection. At that time we 

were told everything was in order. Your 

inspector later penalized us for a back-up 

alarm that he claimed was not loud enough. 

We have corrected the problem areas and 

feel we should have been told if these 

items and such were a problem at the time 

of our complimentary inspection. That is 

why we requested it in the first place." 

This letter raises the question which occasionally occurs in 

mine safety law concerning whether or not the Secretary, or more 

specifically MSHA, should be estopped ·from citing a violation for 

a condition which previously it had not cited during prior inspections. More precisely, does the legal effect of prior nonenforcement equitably estop a government agency from subsequently 

charging a mine operator with a violation for a condition which 

it believes contravenes the mandatory health and safety standards. 

In Secretary v. King Knob Coal Company, Inc., 3 FMSHRC 1417, 1421 

(1981}, the Commission rejected the doctrine of equitable estoppel 

in mine safety and health proceedings. It noted therein that the 

United States Supreme Court has .held that equitable estoppal generally does not apply against the federal government. The Commission 

also noted that one reason for its declining to permit this concept 

is that it would be inconsistent with the so-called "liability 

1358 
without fault" structure of the Act. The Commission reached the 

same result in Secretary v. Burgess Mining and Construction 

Corporation, .3 FMSHRC 296. Therefore, to the extent that the 

letter of Respondent in the file raises the question of equitable 

estoppel on the basis of the Secretary's failure to find and cite 

violations during the prior courtesy inspection or that the 

Secretary should be bound since it did not uncover such a situation during the courtesy inspection, such argument is rejected. 

Turning now to the issue which is more directly involved 

in this proceeding, that is whether or not a violation of the 

subject regulation occurred, determination of this issue rests 

upon the resolution of a conflict in testimony between the Inspector and Mr. Charlie Stauber, a crusher operator, who testified 

on behalf of the Respondent. 

The Inspector indicated that the back-up alarm, which was 

automatic and which was triggered when the front-end loader in 

question was put in reverse gear, could not be heard by a miner 

or other person who would be behind the loader and who would 

be exposed to the hazard of being run over by the loader. The 

Inspector indicated that the loader's operator, who sat in a 

cab on the loader which had a rear-view window, would have his 

vision obstructed by the presence of the loader's engine and that 

the operator's vision would be obstructed for varying distances, 

depending on the exact direction the operator would be directing 

his vision toward~ 

A direct conflict with the Inspector's determination as to 

the audibility of the automatic back-up alarm was created by 

Mr. Stauber's testimony to the effect that on July the 10th, 

1985, he was operating a crusher in the vicinity of the loader 

and that he could hear the automatic back-up alarm clearly even 

while he was wearing ear plugs. Before resolving the conflict 

in this testimony, I first note that the testimony of Mr. Pautz 

is not deemed sufficiently specific or otherwise probative to 

be considered fn the credibility resolution which follows. 

In concluding that the testimony of Mr. Stauber must prevail over that of the Inspector in this particular instance, it 

cannot be avoided that in a determination which essence is that 

of audibility and where it appears that one person's hearing is 

impaired and the other's is not that a basic overpowering factor 

enters the equation on the side and in support of the opinion of 

the person whose hearing has not been shown to be reduced. 

1359 
The burden in a case such as this is on the Secretary to 

establish that a violation occurred and to carry such burden 

by a preponderance of the evidence. In this matter the question 

comes down to which judgment, that of the Inspector or that of 

Mr. Stauber should be given the greatest weight. These are subjective judgments. They do involve the loudness of a horn. The 

Inspector in effect says it is not loud enough to be heard over 

the surrounding noise. The crusher operator says that he could 

hear it even with ear plugs on. The Secretary's burden of proof 

was not aided in this case by instruments or by the testimony of 

a corroborating witness. In this instance the Secretary is found 

to have not established that a violation occurred by a preponderance of the evidence. 

Accordingly, it is ordered that Citation Number 2374053 is 

vacated. 

Distribution: 

~~~ Cl· ~l'-dt'~ /71-

Michael A. Lasher, Jr. 

Administrative Law Judge 

Miguel J. Carmona, Esq., Office of the Solicit;or, U.S. Department 

of Labor, 230 South Dearborn Street, 8th Floor, Chicago, Illinois 

60604 (Certified Mail} 

Mr. Kenneth M. Nelson, Nelson Trucking Company, 2898 Flintville, 

Green Bay, Wisconsin 54303 (Certified Mail) 

/ot 

1360 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 SEP 11 1986 

THOMAS P. MARTINEZ, 

Complainant 

v. 

TOWER RESOURCES, INC., 

Respondent 

. . 

: 

DISCRIMINATION PROCEEDING 

Docket No. WEST 86-3-D 

• DENV CD 85-22 . . 

: 

DECISION AND ORDER OF DISMISSAL 

Before: Judge Lasher 

Complainant has fai1ed to respond to my Prehearing Order 

issued January 14, 1986. Thereafter, Complainant has failed 

to respond to my Order to Show Cause dated July 21, 1986, and 

otherwise proceed with his complaint herein. Complainant is 

thus found to have abandoned the prosecution of this proceeding 

and this matter should be, and hereby is, DISMISSED. 

Distribution: 

. .,,.<:~ A_ . 

/ff~~~ 17 'r17~ /f '-· 

Michael A. Lasher, Jr. 

Administrative Law Judge 

David L. Grindstaff, Esq., Quintana & Grindstaff, 375 South 

600 East, Salt Lake City, Utah 84108 (Certified Mail) 

Mr. Thomas P. Martinez, P.O. Box 423, Price, Utah 84501 

(Certified Mail) 

H. Michael Keller, Esq., Vancott, Bagley, Cornwall & McCarthy, 

50 South Main Street, P.O. Box 45340, Salt Lake City, Utah 84144 

(Certified Mail) 

/ot 

1361 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 SEP 151986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FIFE ROCK PRODUCTS COMPANY, 

INC. I 

Respondent 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 85-141-M 

A.C. No. 42-00377-05502 

Fife Brigham Pit 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner. 

Before: Judge Morris 

This is a civil penalty proceeding initiated by petitioner 

against respondent in accordance with the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et seq. The civil penalty 

sought here is for the violation of 30 c:F".R. § 56.15-7, a mandatory standard promulgated pursuant to the Act. 

After notice to the parties, a hearing was scheduled in 

Salt Lake City, Utah on August 12, 1986. The petitioner appeared 

but respondent failed to appear. 

Pursuant to Commission Rule 63(b), 29 C.F.R. § 2700.63(b), 

respondent was found to be in default. 

Accordingly, I enter the following: 

ORDER 

Citation 2360673 and the proposed civil penalty of $600 are 

affirmed. 

Law Judge 

1362 
Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294 (Certified Mail) 

Mr. Clifford P. Woodland, General Manager, Fife Rock Products 

Company, Inc., P.O. Box 479, Brigham City, Utah 84302 {Certified 

Mail) 

/ot 

1363 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SEP 151986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THUNDER BASIN COAL COMPANY, 

Respondent 

. . 

. . 

. . 

Docket No. WEST 86-26 

A.C. No. 48-00977-03507 

Black Thunder Mine 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for .Petitioner; 

Thomas F. Linn, Esq., Denver, Colorado, 

for Respondent. 

Before: Judge Morris 

This is a civil penalty proceeding initiated by petitioner 

against respondent in accordance with the Fe.deral Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. The civil penalties sought here are for the violation of mandatory standards 

promulgated pursuant to the Act. 

After no·tice to the parties, a hearing on the merits commenced in Gilletteu Wyoming on August 6, 1986. After conferring 

the parties announced that they had reached an amicable settlement. 

The citations, the standards allegedly violated, the original 

assessments and the proposed dispositions are as follows: 

Standard 

Citation No. CFR Title 30 

2222770 

2222771 

§ 77.20(b) 

§ 77.1104 

Assessment 

$119 

168 

Disposition 

$109 

168 

The proposed settlement further included striking the S & S 

designation for Citation 2222770. 

1364 
Discussion 

I have reviewed the proposed settlement and I find that 

it is reasonable and in the public interest. 

Acqordingly, I enter the following: 

ORDER 

1. The settlement is approved. 

2. Citation 2222770 is affirmed as a non-S & S violation 

and a penalty of $109 is assessed. 

3. Citation 2222771 and the proposed penalty of $168 are 

affirmed. 

4. Respondent is ordered to pay to petitioner the sum 

of $277 within 40 days of the date of this Decision. 

Distribution: 

~n J. 

//'Adminis 

/ 

Law Judge 

James H. Barkley 0. Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

Colorado 80294 (Certified Mail) 

Thomas F. Linn, Esq., 555 Seventeenth Street, Denver, Colorado 

80202 (Certifled Mail) 

/ot 

1365 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SEP 151986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THUNDER BASIN COAL COMPANY, 

Respondent 

: 

. . 

Docket No. WEST 86-34 

A.C. No. 48-00977-03508 

Black Thunder Mine 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Thomas F. Linn, Esq., Denver, Colorado, 

for Respondent. 

Before: Judge Morris 

This is a civil penalty proceeding initiated by petitioner 

against respondent in accordance with the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et seq. The civil penalties sought here are for the violation o~mandatory standards 

promulgated pursuant to the Act. 

After notice to the parties, a hearing on the merits commenced in Gillette, Wyoming on August 6, 1986. After conferring 

the parties announced that they had reached an amicable settlement. 

The citations, the standards allegedly violated, the original 

assessments and the proposed dispositions are as follows: 

Standard 

Citation Noo CFR Title 30 

2222714 

2222718 

§ 77.410 

§ 77.1003 

Assessment 

$85 

119 

Disposition 

$20 

119 

The proposed settlement further included striking the S & s 

designation for Citation 2222714 and amending Citation 22227·18 

to allege a violation of 30 C.F.R. § 77.1001 in lieu of its 

present designation. 

1366 
Discussion 

I have reviewed the proposed settlement and I find that 

it is reasonable and in the public interest. 

Accordingly, I enter the following: 

ORDER 

1. The settlement is approved. 

2. Citation 2222714 is affirmed as a non-S & S violation 

and a penalty of $20 is assessed. 

3. Citation 2222718 for the violation of 30 C.F.R. § 77.1001 

is affirmed and a penalty of $119 is assessed. 

4. Respondent is ordered to pay the sum of $139 to the 

petitioner within 40 days of the date of this Decision. 

Adrninist~ve n----• .. a~ Law Judge 

Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

Colorado 80294 (Certified Mail) 

Thomas F. Linn, Esq., 555 Seventeenth Street, Denver, Colorado 

80202 (Certified Mail) 

/ot 

1367 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 SEP 151986 

EMERY MINING CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

CONTEST PROCEEDING 

Docket No. WEST 86-106-R 

Order No. 2833668; 3/11/86 

Little Dove Mine 

DECISION 

Appearances: Timothy M. Biddle, Esq. and Susan E. Chetlin, Esq., 

Crowell & Moring, Washington, D.C., 

Before: 

for Contestant; · 

Edward J. Fitch, IV, Esq., Office of the Solicitor, 

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

for Respondent. 

Judge Morris 

This is a contest proceeding initiated by contestant pursuant 

to§ lOS(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et seq., (the Act). 

Emery contested MSHA Order No. 2833668 for a failure to abate 

Citation No. 2833666 issued March 10, 1986. 

A hearing on the merits of this case and related cases commenced in Denver, Colorado on July 29, 1986. 

At the hearing the parties advised the judge that the Secretary 

intended to vacate his order. In due course the order was vacated 

and the contestant has, accordingly, mcved to withdraw the notice 

of contest. 

Pursuant to Commission Rule 11, 29 C.F.R. § 2700.11, contestant's motion is granted and the contest filed by Emery Mining 

Corporation is dismissed. 

~ s 

tive Law Judge 

1368 
Distribution: 

Timothy M. Biddle, Esq. and Susan E. Chetlin, Esq., Crowell- & 

Moring, 1100 Connecticut Avenue, N.W., Washington, o.c. 20030 

(Certified Mail) 

Edward J. Fitch, IV, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203 

(Certified Mail) 

/ot 

1369 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

September 18, 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

BRENDA FAYE COAL SALES CO., 

INC. I 

Respondent 

DECISION 

Docket No. KENT 85-112 

A.C. No. 15-10198-03506 

Brenda Faye Coal Tipple Mine 

Appearances: Charles Merz, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, TN, for 

Petitioner; 

Daniel E. Karst, Esq., Brenda Faye Coal Sales 

Company, Inc., Closplint, KY, for Respondent 

Before: Judge Fauver 

The Secretary seeks a civil penalty for an alleged 

violation of a mandatory safety standard under the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 801, et seq. 

The charge was issued in connection with the investigation 

of an accident. Joseph Shuler, a contract coal hauler, was 

permanently disabled when a Michigan front-end loader operated 

by Respondent's employee struck Shuler and mashed his leg 

against the front of his coal truck. 

Shuler's leg was amputated as a result of severe, 

multiple fractures and lacerations of his leg. The frontend loader had defective brakes at the time of the accident. 

A hearing was held in Lexington, Kentucky. Having 

considered the testimony, arguments, and the record as a 

whole, I find that the preponderance of the reliable, probative, 

and substantial evidence establishes the following: 

1370 
FINDINGS OF FACT 

1. Respondent operates a coal tipple in Harlan County, 

Kentucky, which is part of a business enterprise of corporations 

controlled by Edward Karst. The enterprise is a medium size 

business, producing 300,000 tons of coal annually. It was 

stipulated at the hearing that a penalty within the limits 

of the Act would not affect Respondent's ability to continue 

in business. 

2. On January 11, 1985, a coal hauling truck with an 

attached tandem trailer was loaded with coal at the tipple, 

and ready to leave. Its exit was a 10-12% grade, dirt road. 

Because of slippery conditions, the truck was unable to 

climb the grade. · 

3. David Karst, an employee at the tipple, and son of 

Edward Karst, drove a Michigan 275B front-end loader toward 

the site where the truck was stuck. He intended to descend 

the road, stop near the front of the coal truck, have a tow 

chain attached and tow the truck up the exit road. 

4. When Karst descended the road toward the truck, he 

saw the truck driver in front of the truck. The driver was 

there to hook up the tow chain. Karst tried to stop the 

front-end loader to avoid hitting the driver and the coal 

truck, but he was unable to stop the front-end loader because 

of defective brakes. The brakes were only 35-40% effective. 

The bucket of the front-end loader struck the driver and the 

coal truck. The driver's left leg was crushed against the 

truck. Multiple fractures and lacerations of the leg resulted 

in amputation of the leg at the hospital. The coal truck's 

front-end was severe'ly damaged by the collision. 

5. Extensive repairs of the brakes of the front-end 

loader were required to bring the braking capacity up to a 

normal, safe operating condition. The extent of the brake 

deterioration and the type of repairs needed to correct it 

showed that the brake defects had not suddenly occurred but 

were detectable for a considerable period before and up to 

the time of the accident. 

1371 
6. The driver of the front-end loader did not test the 

brakes before he started downhill toward the coal truck. At 

the top of the incline, he saw the driver in peril, in front 

of the coal truck, and had sufficient time and distance if 

the brakes were normal to stop the front-end loader without 

hitting the driver or the coal truck. However, because the 

brakes were defective his vehicle collided with the dri~er 

and· the truck. 

DISCUSSION WITH FURTHER FINDINGS 

I find that Respondent was grossly negligent in operating 

the Michigan front-end loader with defective brakes. The 

loader is a very large vehicle, with wheels over eight feet 

high. Moving the vehicle around other equipment and personnel 

with only 35-40% effective brakes was a highly hazardous 

practice. The federal inspector issued an imminent danger 

order on the front-end loader, forbidding its use until the 

brakes were repaired. Respondent should have taken the 

vehicle out of service for proper brake repairs before 

January 11, 1985, the day of the accident. The gravity of 

the violation was very high, and, with normal brakes, and by 

exercising reasonable care, the front-end loader driver could 

have avoided the accident. He could have stopped his vehicle 

and told Shuler to get out of the way before proceeding downhill toward the coal truck. The defective brake condition 

was a direct cause of the accident and permanent disabling 

injury of Joseph Shuler on January 11, 1985. 

Respondent argues that Joseph Shuler should not have 

been standing in front of his coal truck and that his negligence 

contributed to the accident. However, with safe brakes, Karst 

would have been able to stop his vehicle and Shuler to 

stand aside before he proceeded down-hill. In addition, with 

safe brakes and by exercising reasonable care, Karst would 

not have struck the coal truck, which was substantially 

damaged by the collision. His collision with the coal truck 

was in no way caused by Shuler's presence in front of the 

truck. 

1372 
Despite Respondent's arguments about an "unavoidable" 

accident, it is clear that, if there had been adequate 

brakes and reasonably prudent performance by the front-end 

loader driver, the front-end loader would not have struck 

Shuler and the coal truck. 

Considering all of the criteria in section llO(i) for 

assessing a penalty, a civil penalty of $2,000 is deemed 

appropriate for this violation. 

CONCLUSIONS OF LAW 

1. The Judge has jurisdiction over the subject matter 

of this proceeding. 

2. Respondent violated the safety standard as charged 

in Citation No. 2476582. 

3. Respondent is ASSESSED a civil penalty of $2,000 for 

the above violation. 

ORDER 

Respondent shall pay the above assessed civil penalty 

of $2,000 within 30 days from the date of this Decision. 

cJ~~ ~<Vv.~~~ William Fauver 

Administrative Law Judge 

Distribution: 

Charles F. Merz, Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Mr. Edward W. Karst, President, Brenda Faye Coal Sales Company, 

Inc., Box 493, Louellen, KY 40853 (Certified Mail) 

kg 

1373 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP .191986 

JOHN HATTER, JR., 

Complainant 

: DISCRMINATION .PROCEEDING 

v. Docket No. PENN 85-290-D• 

MSHA Case No. WILK CD 85-1 

FRANKLIN COAL COMPANY, 

Respondent 

. . Franklin Breaker Mine 

Appearances: 

Before: 

DECISION 

Cyrus Palmer Dolbin, Esq., Pottsville, 

Pennsylvania, for the Complainant; 

Franklin I. Miller, President, Franklin Coal 

Company, Pinegrove, Pennsylvania, pro se~ 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint 

filed by the complainant against the respondent pursuant to 

section 105(c) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801 et seqo The complainant alleges that 

he was discharged by the respondent because he filed a claim 

for black lung benefits, and the respondent maintains that 

the complainant was laid off for certain economic reasons. 

The initial complaint was filed with the Secretary of Labor, 

Mine Safety and Health Administration CMSHA), and following 

an investigation of the complaint, MSHA advised the complainant that its investigation failed to disclose any violation 

of section 105(c). The complainant then filed his complaint 

with this Commission. 

A hearing was held in this matter in Pottsvi: 1 e, 

Pennsylvania, and the parties appeared and participdted fully 

in the hearing. The parties waived the filing of any posthearing arguments, but I have considered the oral arguments 

made on the record during the hearing in the course of this 

decision. 

1374 
Issue 

The critical issue in this case is whether Mr. Hatter's 

termination by the respondent was prompted in any way by his 

filing for black lung benefits, or whether it was the result 

of certain economic conditions or financial losses as claimed 

by the respondent. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 30·1 et seq. 

2. Sections 105(c)(l), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. §§ 815(c)(l), (2) 

and (3). 

3. Commission Rules, 29 C.F.R. § 2700.1, et seg. 

Discussion 

Complainant's Testimony and Evidence 

John Hatter, Jr., testified that he is presently working 

for the Sherman Coal Company, and that he previously worked 

for the respondent from April 10, 1970, to January 30, 1985. 

His duties included the loading of trucks, taking care of the 

fine coal plant, and loading trailers with a front-end loader. 

Mr. Hatter stated that he filed for black lung benefits 

on November 28, 1984. On January 30, 1985, Company President 

Franklin Miller summoned him to his office and advised him 

that he had to be laid off "because he said coal sales were 

down and he was being audited" (Tr. 12). Mr. Hatter stated 

that he asked Mr. Miller why he couldn't lay someone else 

off, and Mr. Miller said "they could weld and I couldn't" 

(Tr. 12). Mr. Hatter confirmed that he left work that same 

day. 

Mr. Hatter stated that during his employment with the 

respondent he had no disputes over his work, was always on 

time, had no arguments with management, and he considered 

himself to be a good employee (Tr. 13). He stated that 

Mr. Miller never complained about his work (Tr. 24). He 

identified employee Robert Hoffman as the only person with 

more seniority, and he identified five other employees who 

had less seniority with the company (Tr. 16-17). Mr. Hatter 

stated that after he was laid off, Mr. Hoffman was injured on 

the job and was in the hospital. The respondent hired no one 

to fill his vacancy, and Mr. Hoffman has since returned to 

1375 
work. However, Mr. Miller hired Claire Zimmerman, his 

brother-in-law, after Mr. Hoffman was injured, even though he 

(Hatter) was second in seniority to Mr. Hoffman, and was 

available for work. Mr. Hatter stated that he received no 

further calls or communications from Mr. Miller to go back to 

work (Tr. 19). He confirmed that he was receiving unemployment benefits from the State of Pennsylvania, and that in 

order to receive those benefits he had to be ready, willing, 

and able to work (Tr. 20). He also confirmed that he could 

have done welding work (Tr. 20). 

Mr. Hatter's counsel produced copies of payroll slips 

from July 6 to December 28, 1984, reflecting that Mr. Hatter 

earned an average of $221.69 a week while employed with the 

respondent during this time period (Tr. 21, exhibit C-2). 

Mr. Hatter confirmed that he was unemployed from January 30, 

1985 to September 14, 1985, the date that he went to work for 

the Sherman Coal Company, and that his unemployment benefits 

stopped in July, 1985 (Tr. 23). He stated that he received 

unemployment benefits from January 30 through July, 1985, and 

that they amounted to $122 a week (Tr. 24). 

Mr. Hatter's counsel produced a copy of a letter dated 

February 25, 1985, after Mr. Hatter's termination, from 

Mr. Miller to the Office of Coal Mine Workers' Compensation 

Programs, Wilkes-Barre, Pennsylvania, stating that Mr. Hatter 

was never absent from work due to illness and never complained 

that he was short of breath or wanted other work because of 

shortness of breath (exhibit C-3, Tr. 24-25). The letter also 

states: "Before we are liable and John Hatter is found eligible that he received Black Lung benefits, I want proof that he 

does have pneumoconiosis by a second opinion from doctors' 

examinations, x-rays, etc." 

In response to further questions, Mr. Hatter confirmed 

that he did not inform Miller that he was going to file his 

black lung claim before he filed it and that he never discussed it with him (Tr. 26). Mr. Hatter stated that he filed 

the claim because "I was getting up in age. It takes 6 or 

7 years ~o get it" CTr. 26). He filed it to establish his 

eligibility and to protect whatever rights he had under any 

applicable law. Mr. Hatter also confirmed that he never contacted anyone from MSHA regarding his claim (Tr. 27). 

Mr. Hatter stated that Mr. Miller employs seven people, 

and he described Mr. Miller's operation as a preparation 

plant which processes and cleans coal received from different 

sources. The coal is resold to different truckers and 

jobbers, and at one time it was shipped by rail. There is no 

1316 
underground facility on the property, and no coal is actually 

mined there. Mr. Hatter could not state the volume of coal 

processed by the plant (Tr. 28-29). 

Mr. Hatter. confirmed that Mr. Miller's operation is 

non-union, and that when he was terminated, Mr. Miller told 

him that his coal sales were down and they did not discuss 

his black lung claim. Mr. Hatter reiterated that at no time 

prior to his termination did he ever discuss any black lung 

condition or claim with Mr. Miller, and he conceded that 

Mr. Miller had no reason to know about it, and never said 

anything to Mr. Hatter which would lead him to believe that 

he knew about the claim (Tr. 42-46). When asked why he 

believes he was terminated by Mr. Miller because he filed for 

black lung, Mr. Hatter responded "Well, it seems to figure. 

He got notice the 29th, and the 30th I got laid off" (Tr. 

46). 

Mr. Hatter's counsel confirmed that Mr. Hatter is waiting for a hearing date on his black lung claim, and that it 

usually takes 5 to 7 years for a hearing to determine his 

eligibility for benefits (Tr. 29). Counsel conceded that the 

black lung claim is different from any Part 90 Miner status 

under MSHA's regulations, and he stated that he was not familiar with those regulations and has not read them thoroughly 

(Tr. 30). He conceded that Mr. Hatter has never filed for 

Part 90 status under MSHA's regulations, and Mr. Hatter himself confirmed that he never filed for such status (Tr. 

31-32, 38). 

Mr. Hatter stated that he sought treatment or medical 

advice for his alleged black lung condition on one occasion, 

and his counsel confirmed that this was done in connection 

with the filing of his black lung eligibility claim, and that 

this was done after his termination by the respondent (Tr. 

33). Copies of certain medical records introduced by 

Mr. Hatter's counsel include a chest radiographic diagnosis 

of "Pneumoconiosis'with probable emphysema." Mr. Hatter's 

counsel conceded that prior to his termination by the respondent, he was not examined for black lung nor was that fact 

made known to Mr. Miller prior to the filing of his claim, 

but that it was made known immediately after the filing of 

the claim (Tr. 35). 

Mr. Hatter's counsel pointed out that Mr. Hatter worked 

in a "watered down work area," and since he was in a dust-free 

environment, he probably would not have qualified for Part 90 

miner status. Counsel preferred that Mr. Hatter did work 

1377 
inside mines prior to 1970 before going to work for the respondent, and may have contracted black lung then CTr. 39). 

Mr. Hatter's counsel submitted that on January 29, 1985, 

the day before he was laid off, Mr. Hatter received notice 

from the U.S. Department of Labor that his black lung claim 

had been filed, and that the respondent also received a copy 

of that notice, (exhibit c-1, Tr. 14). counsel asserted that 

this was the first notice that the respondent would have 

received of the filing of Mr. Hatter's claim, and that it was 

probably received by January 29-30, 1985, the date on which 

he was dismissed <Tr. 15). 

Respondent's Testimony and Evidence 

Franklin I. Miller, confirmed that he is the owner and 

operator of the Franklin Coal Company. He described his operation as a coal preparation plant, and he stated that he purchases coal from different suppliers and sells it to brokers 

or other domestic users. The average number of employees is 

four to five, and the number of days the plant is in.operation varies. At the present time, the plant operates less 

than 5 days a week, and·on some weeks it only operates for 

2 days depending on the amount of coal processed. For the 

year 1985, the plant processed 10,884 tons of coal, and 

handled an additional 40 percent which is simply bought and 

resold without processing (Tr. 50-53). 

Mr. Miller stated that his coal tonnages and sales for 

the past 10 years have diminished roughly 20 percent a year, 

and that at the time he laid off Mr. Hatter he had to employ 

less people because his sales did not warrant the number of 

people he employed. The December 1984 audit from his accountant reflected a loss of $31,419.39 for that month (Exhibit 

R-2, Tr. 54). A statement of profit and losses for the 

entire year of 1984 reflect a net loss of $70,563.88 <exhibit 

R-1, Tr. 54). 

Mr. Miller stated that at the time he terminated 

Mr. Hatter he was still waiting for his final 1984 yearly 

audit of his financial position as reflected in exhibit R-1, 

but he knew that his financial position was such as to 

require some changes in his structure and operation. In any 

decision to lay off employees, he considers which employees 

are more important to his operation. In this case, Robert 

Hoffman was a welder and a supervisory foreman, and everyone 

else except Mr. Hatter were welders. Mr. Miller stated that 

he explained to Mr. Hatter that it was important for him to 

retain welders because he was rebuilding his steel coal 

1378 
storage bins and needed them. Mr. Miller stated that any of 

these employees could do Mr. Hatter's work, including the man 

he had working in the office {Tr. 55). 

On cross-examination, Mr. Miller stated that during past 

business slumps he did not lay off employees. Although he 

did not actually receive his final 1984 audit until after 

Mro Hatter was terminated, he did receive monthly reports and 

"had an inkling" that he was operating at a loss. He stated 

that he explained this to Mr. Hatter when he laid him off 

(Tr. 57). 

Mr. Miller confirmed that he received the notice dated 

January 28, 1985, concerning Mr. Hatter's black lung claim in 

the mail, and conceded that he may have received it on the 

29th or 30th, but was not sure as to the exact date he 

received it (Tr. 57-59). He also stated that "I might have 

gotten this before, yes" {Tr. 59). He explained that he laid 

Mr. Hatter off on January 30, because it was the end of a 

weekly pay period, and the day following began a new pay 

period CTr. 59). Although January 30 was a Wednesday, 

Thursday was the end of the pay period, and Mr. Hatter would 

have picked up his check on Friday, and it was decided to 

terminate him at the end of the week so as not to establish a 

new account for him (Tr. 60-61). 

Mr. Miller stated that at the present time he has only 

three employees, including himself, on his payroll. He denied 

that Mr. Claire Zimmerman, his brother-in-law, is on his payroll, and he explained that he sold a car to Mr. Zimmerman and 

that he helped out to pay for the car. Mr. Miller also stated 

that he operates another business installing satellite dishes 

and that Mr. Zimmerman helps load them on the trucks to pay 

off the car, and that he is available as needed. Mr. Miller 

confirmed that Mr. Zimmerman at one time worked for his 

(Miller's) father as a loader, welder, and plant operator, and 

that he is married to his sister, who works as his part-time 

secretary (Tr~ 64). 

Mr. Miller stated that subsequent to Mr. Hatter's termination, Mr. Hatter's son was on his payroll, but was laid off 

in May, 1985. He also laid off employee Edward Wolfe at the 

same time he laid off Mr. Hatter, but did not advise 

Mr. Hatter of this fact because their discussion was very 

brief (Tr. 66). Although Mr. Hatter first came to work in 

1970 when his (Miller's) father owned th.e business, Mr. Miller 

stated he took over the business from his father in 1975 {Tr. 

66). 

1379 
Mr. Miller stated that the losses reflected on.his 

"unaudited financial reports" for 1984 are actual losses, and 

he reiterated that he retained the employees with welding 

skills because he needed them, and Mr. Hatter was not a 

welder (Tr. 66-67). Mr. Miller stated that his company has 

no formal seniority program, and since he is the boss "I pick 

and choose" (Tr. 68). 

Mr. Miller stated that he has never discussed 

Mr. Hatter's discrimination complaint with him. He confirmed 

that his company provided Mr. Hatter with hospitalization 

benefits and that Mr. Hatter has received $11,000 to $12,'000 

as the beneficiary of a company retirement plan funded totally 

by the company (Tr. 69-70). When asked why he believed 

Mr. Hatter filed the complaint against him, Mr. Miller 

responded "to get out of the boss what you're going to get out 

of him" (Tr. 69). 

Mr. Miller disagreed with Mr. Hatter's assessment of 

himself as an employee. Mr. Miller stated that his lay-off 

decision concerning Mr. Hatter did not come about "on the 

·spur of the moment." He stated that for the past 5 years he 

has been dissatisfied with Mr. Hatter's work, and he gave 

several examples of what he considered to be poor performance, 

including complaints from customers and instances when 

Mr. Hatter put in for time worked when he actually did not 

work. On those occasions, Mr. Miller would deduct the time 

from Mr. Hatter's pay, without objection (Tr. 70-72). 

Mr. Miller asserted that he probably should have fired 

Mr. Hatter earlier, but instead laid him off so that he could 

collect his unemployment for 26 weeks {Tr. 72). Mr. Miller 

conceded that he did not tell Mr. Hatter this, nor did he 

discuss his work with him at the time he laid him off, and he 

denied that Mr. Hatter was fired (Tr. 72). He further 

explained that he did not bring these matters up with 

Mr. Hatter when he laid him off because he did not wish to be 

subjected to any abuse from Mr. Hatter (Tr. 74). Mr. Miller 

also indicated that he was reluctant to bring up Mr. Hatter's 

work performance "for his sake" (Tr. 74). When asked why he 

did not fire Mr. Hatter earlier, Mr. Miller responded "Did 

you ever hear the expression that they say: Give a guy 

enough rope, he'll hang himself? Well, that's exactly what 

he did" (Tr. 75}. Mr. Miller explained further at (Tr. 102): 

JUDGE KOUTRAS: Well, you keep talking about 

the rope now. But, why didn't you put on the 

rope 4 years or 3 years? Why did you wait 

until this? 

1380 
MR. MILLER: I made up my mind then that he 

was going to have to go at that time. The 

right occasion had to occur. And, my financial situation is what decided this. His 

black lung, I have no control over whether he 

gets black lung or he doesn't have any black 

lung. That's not my decision to make; that's 

the doctor's decision. we paid irito the funds 

for him to get black lung, if he has it. 

When asked why he did not bring up Mr. Ha.tter' s poor 

work performance when he was contacted by an MSHA investigator during the investigation of his discrimination complaint, 

Mr. Miller responded " I didn't want to bring that up for his 

own benefit, and, I didn't want to bring it up. here today. I. 

don't like to treat men like that" (Tr. 103-104). In 

response to further questions, Mr. Miller stated as follows 

(Tr. 104-105): 

JUDGE KOUTRAS: Why did you feel compelled to 

bring it up today? 

MR. MILLER: Because you were asking me about 

my brother-in-law and about the car that he 

worked for. And, well, naturally I'd bring 

everything out. I mean, I don't like -- I'm 

not an individual who would go down there and 

rub mud in anybody's face, because I don't 

expect that of myself either. 

JUDGE KOUTRAS: When he received unemployment 

compensation benefits what did you tell the 

state people your reason for terminating him; 

do you recall? · 

MR. MILLER: I laid him off because I needed 

welders and I had to cut down on the payroll. 

I had to make up some seven thousand dollars 

there some place. That's the first place. 

Besides taxes and -- you see, when you have 

five people on the payroll -- four instead of 

five, you're paying twenty percent less into 

Black Lung funds, twenty percent less 

hospitalization. 

I had to get rid of men because of costs. 

I was the boss of the place. I worked out 

there like everybody else. So, I was in a 

1381 
position to get rid of some of the people and 

do the work myself. That's only surviving. 

JUDGE KOUTRAS: Do you pay your portion or 

share of Black Lung to this insurance carrier 

for all your employees? 

MR. MILLER: Yes. 

JUDGE KOUTRAS: Across the board? 

MR. MILLER: Everyone, yes. 

Mr. Miller confirmed that while he was familiar with 

MSHA, he was not familar with the black lung program because 

he was never involved with it. He denied any knowledge of 

MSHA's "Part 90" program, and he stated that none of his 

employees have ever made application for that program, nor 

has MSHA ever advised him that any employee had to be 

reassigned to get them out of dusty environments. He stated 

that he has always been in compliance with MSHA's dust 

standards (Tr. 76). 

Mr. Miller stated that he never discussed Mr. Hatter's 

black lung claim with him, and that he first learned about it 

through the notice letter of January 28. Mr. Miller stated 

that he had no basic familiarity with the claim and was not 

concerned that it might cost him money or cause problems (Tr. 

77). He insisted that he laid Mr. Hatter off because of 

economic conditions, and that he has been patient with him 

for the past 5 years. He confirmed that Mr. Hatter's attendance record was good and that he was "always there on t.ime" 

(Tre 78). He also confirmed that he did not document 

Mro Hatter's past poor work performance. 

Mr. Miller stated that he has no control over 

Mr. Hatter's asserted black lung condition, and that he has 

paid into the Federal and state black lung fund for as long 

as he has been in business. He explained that the funds are 

paid into an insurance fund, and that the insurance company 

pays for black lung benefits and that he is not personally 

liable for any claim. If he were, it would be impossible for 

him to stay in business CTr. 102-103). 

Mr. Hatter was called in rebuttal, and denied that he 

ever threatened a strike or slowdown if he did not get a 

raise. He stated that he got along well with Mr. Miller, and 

denied that he caused any problems. With regard to the 

employment of Mr. Zimmerman, Mr. Hatter confirmed that he 

1382 
simply assumed that he was on Mr. Miller's payroll and that 

he never discussed the matter with Mr. Zimmerman. Mr. Hatter 

confirmed that he received company paid hospitalization and 

retirement benefits, and that he never had any trouble or 

problems with Mr. Miller (Tr. 80-84). He confirmed that 

Mr. Miller did not discuss company finances with him at the 

time he was laid off, and that Mr. Miller simply told him 

that coal sales were down and he was being audited CTr. 84). 

Mr. Hatter stated that he filed his discrimination complaint with MSHA after a contact by someone from MSHA's 

Wilkes-Barre office. Someone from MSHA called him at home, 

and one of its representatives came to his house and took his 

complaint statement of May 12, 1985. Mr. Hatter's wife, who 

was present in the hearing room, confirmed that someone from 

MSHA contacted Mr. Hatter as a result of his black lung claim, 

and when that individual inquired as to whether Mr. Hatter was 

still employed, Mr. Hatter advised that he was laid off the 

day following the receipt of the notice of his black lung 

claim and that the MSHA person stated "no way" (Tr. 90). Someone from MSHA subsequently came to their home and had 

Mr. Hatter fill out the complaint papers (Tr. 91). 

Mr. Miller stated that he was contacted by an MSHA representative during the investigation of Mr. Hatter's complaint. 

Mr. Miller stated that he informed the representative that he 

had also laid off Mr. Wolfe at the same time, and that the 

representative spoke with Mr. Wolfe. Mr. Miller was later 

notified that MSHA found no discrimination in this case (Tr. 

92). 

Mr. Hatter denied that Mr. Miller ever told him that he 

would take him back if economic conditions got better, and 

Mr. Hatter did not ask him about this. Mr. Hatter believed 

that Mr. Miller should have laid someone else off with less 

seniority {Tr. 96). 

Findings and Conclusions 

In order to establish a prima facie case of discrimination under section 105(c) of the Mine Act, a complaining 

miner bears the burden of production and proof to establish 

(1) that he engaged in protected activity and (2) that the 

adverse action complained of was motivated in any part by 

that activity. Secretary on behalf of Pasula v. Consolidation 

Coal Company, 2 FMSHRC 2768, (1980), rev'd on other grounds 

sub. nom. Consolidation Coal Company v. Marshall, 663 F.2d 

1211 (3d Cir. 1981); and Secretary on behalf of Robinette v. 

United Castle Coal Company, 3 FMSHRC 803 (1981). Secretary on 

1383 
behalf of Jenkins v. Hecla-Day Mines Cororation, 6 FMSHRC 1842 

(1984). The operator may rebut the prima facie case by showing either that no protected activity occurred or that the 

adverse action was in no way motivated by protected activity. 

If· an operator cannot rebut the prima facie case in this 

matter it may nevertheless affirmatively defend by proving 

that Cl) it was also motivated by the miner's unprotected 

activities alone. The operator bears the burden of proof with 

regard to the affirmative defense. Haro v. Magma Copper 

Company, 4 FMSHRC 1935 (1982). The ultimate burden of persuasion does not shift from the Complainant. Robinette, supra. 

See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983>; and 

DOnovan v. Stafford Construction Company, No. 83-1566, D.C. 

Cir. (April 20, 1984) (specifically-approving the Commission's 

Pasula-Robinette test). See also NLRB v. Transportation 

Management Corporation, U.S. , 76 L.Ed.2d 667 (1983). 

Section 105Cc><l> of the Mine Act provides in pertinent 

part 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 is the subject of 

medical evaluations and potential transfer 

under a standard published pursuant to section 

101 * * * (Emphasis added.) 

Section 10l(a)(7), of the Mine Act provides in pertinent 

part as follows: 

* * * [W]here appropriate, any such mandatory 

standards shall prescribe the type and f requency of medical examinations or other tests 

which shall be made available, by the operator 

at his cost, to miners exposed to such hazards 

in order to most effectively determine whether 

the health of such miners is adversely 

affected by such exposure. Where appropriate, 

the mandatory standard shall provide that 

where a determination is made that a miner may 

suffer material impairment of health or functional capacity by reason of exposure to the 

hazard covered by such mandatory standard, 

1384 
that miner shall be removed from such exposure 

and reassigned. Any miner transferred as a 

result of such exposure shall continue to 

receive compen.sation for such work at no less 

than the regular rate of pay for miners in the 

classification such miner held immediately 

prior to his transfer. In the event of the 

transfer of a miner pursuant to the preceding 

sentence, increases in wages of the transferred miner shall be based upon the new work 

classification. 

The mandatory health standards authorized by section 

101Ca)(7) of the Mine Act, are found at 30 C.F.R. Part 90. 

Pursuant to those regulations a miner employed at an underground coal mine or at a surface area of an underground coal 

mine may be eligible to work in a low dust area of the mine 

where there has been a determination that he has evidence of 

pneumoconiosis. If there is evidence of pn.eumoconiosis, a 

miner may exercise his option to work in a mine area where 

the dust levels are below 1.0 milligrams per cubic meter of 

air. 

In Gary Gof.f v. Youghiogheny & Ohio Coal Company, 

7 FMSHRC 1776 (Nov. 1985), the Commission held that a miner 

may state a cause of action under section lOSCc)(l) of the 

Act by alleging discrimination based on the miner's being 

"the subject of medical evaluations and potential transfer" 

under 30 C.F.R. Part 90. In this case, Mr. Hatter makes no 

such claim. He simply alleges that he was terminated one day 

after the respondent was advised that he had filed a claim 

for black lung benefits. Thus, the issue presented is 

whether Mr. Hatter's termination was in any way prompted by 

his filing of this claim. 

The record in this case establishes that Mr. Hatter filed 

his black lung eligibility claim on November 28, 1984, and 

that Mr. Miller had no knowledge of that filing. Mr. Hatter 

concedes that at no time prior to the filing of his claim, did 

he discuss his claim or any asserted black lung condition with 

Mr. Miller, and there is no evidence that Mr. Miller knew 

about it. Further, there is no evidence in this case that 

Mr. Miller knew about Mr. Hatter's claim until the Department 

of Labor's Notice of Claim dated January 28, 1985. Mr. Hatter 

asserted that he received the notice on January 29, 1985, and 

he assumed that Mr. Miller also received' it in that day CTr. 

47). Mr. Hatter further conceded that he and Mr. Miller have 

never discussed his claim or his asserted black lung condition. 

The only direct evidence of Mr. Miller's knowledge of 

1385 
Mr. Hatter's claim is the letter of February 25, 1985, exhibit 

C-3, which Mr. Miller sent to the Labor Department's claims 

examiner after Mr. Hatter was terminated. Since the claim 

·examiner is the same individual who signed the January 28, 

1985, Notice of Claim sent to Mr. Miller, I assume that 

Mr. Miller's letter of February 25, 1985, was in response to 

that notice. 

Mr. Hatter conceded that on the day of his termination, 

Mr. Miller said nothing which would lead him to believe that 

Mr. Miller had any knowledge that he had filed a claim for 

black lung benefits. Mr. Hatter's counsel conceded that 'he 

cannot establish that on the day of the termination Mr. Miller 

had already received notice of the claim. Since Mr. Hatter 

received his notification on January 29, the day before his 

termination, Mr. Hatter assumed that Mr. Miller also received 

his copy that day, and that on the day of the termination, 

January 30, Mr. Miller had knowledge that he filed his claim. 

Mr. Hatter's counsel asserted that since Mr. Miller and 

Mr. Hatter lived within the same 5-mile radius, there is a 

presumption that Mr. Miller received notice of the claim on 

January 29, the same day that Mr. Hatter received his. 

Counsel candidly conceded that the basis for the discrimination claim is an inference that Mr. Miller believed there was 

some legal ramification flowing from Mr. Hatter's black lung 

claim, and that Mr. Miller terminated him for that reason (Tr. 

36). 

I take note of the fact that Mr. Miller's response to 

the notification that Mr. Hatter had filed a black lung claim 

came almost a month later when he sent his response of 

February 25, 1985, to the Labor Department. It seems to me 

that had Mr. Miller been really concerned about his liability 

for any black lung benefits to Mr. Hatter, he would have 

responded earlier. Further, Mr. Miller explained that he has 

always contributed to the black lung benefits fund for as 

long as he has been in business, that any benefits are paid 

by the appropriate insurance carrier, and that he is not personally liable for these payments. Given these circumstances, 

I cannot conclude that at the time of the termination the 

respondent was in any way concerned or motivated by the fact 

that Mr. Hatter had filed a claim for black lung benefits. 

On the facts of this case, it seems clear to me that 

Mr. Hatter has not established that he ever applied to MSHA 

for classification as a Part 90 Miner, and at no time prior 

to his termination was he ever "the subject of medical evaluation and potential transfer" within the meaning of section 

105(c)(l} of the Act. As a matter of fact, the evidence 

1386 
establishes that the only time Mr. Hatter sought treatment or 

medical advice for his alleged black lung condition was in 

connection with his filing of a black lung eligibility claim, 

and this was done after his termination by the respondent •. 

Mr. Hatter filed his. claim in order to preserve any future 

rights to black lung benefits and in recognition of the fact 

that any administrative determination of his claim may take 

years to adjudicate. Mr. Hatter's counsel conceded that his 

black lung claim is different from any Part 90 Miner status 

under MSHA's regulations, and he questioned Mr. Hatter's eligibility unde~ those regulations because his work with the 

respondent was in a watered down dust-free environment. Under 

the circumstances presented in this case, I conclude and find 

that Mr. Hatter has failed to establish a prima facie claim 

that he was terminated because he was "the subject of medical 

evaluation and potential transfer" under Part 90, or because 

he had filed a claim for black lung benefits. Accordingly, 

his complaint IS DISMISSED. 

Distribution: 

Cyrus Palmer Dolbin, Esq., Dolbin, Cori & Jones, P.O. 

Box 980, 501 West Market Street, Pottsville, PA 17901 

(Certified Mail) 

Franklin I. Miller, Jr., Owner, Franklin Coal Company, 

Ravine, PA 17966 (Certified Mail) 

/fb 

1387 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 191986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

YEANEYr SHIELDS, BRICK, 

PARTNERS, 

Respondent 

. 

. 

. . 

. 

e 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 85-299 

A.C. No. 36-06172-03501 

Blackhawk Mine 

ORDER OF DEFAULT 

Before: Judge Broderick 

On August 25, 1986, I issued an order to Respondent to show 

cause on or before September 5, 1986 why it should not be held in 

default for failure to comply with my prehearing order issued on 

May 12, 1986. At the request of Respondent made in a telephone 

conversation on September 5, 1986, I extended the time to respond 

to the order to show cause to September 15, 1986. Respondent has 

not responded to the order to show cause. · 

Therefore, I find that Respondent is in DEFAULT. IT IS 

ORDERED that the penalties proposed in the Assessment Order 

attached as Exhibit A to the Petition in the total amount of $82 

are imposed as the final order of the Commission. IT IS FURTHER 

ORDERED that Respondent shall pay such penalties in the amount of 

$82 within 30 days of the date of this order. 

1388 
Distribution: 

Mark V. Swirsky, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

Mr. Gary E. Yeaney, Partner, R.D. 2, Box 62A, Mayport, PA 16240 

(Certified Mail) 

slk 

1389 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 191986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GREENWICH COLLIERIES, 

DIVISION OF PENNSYLVANIA 

MINES CORPORATION, 

Respondent 

GREENWICH COLLIERIES, 

DIVISION OF PENNSYLVANIA 

MINES CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

: CIVIL PENALTY PROCEEDING. 

: 

Docket No. PENN 85-305 

: A.C. No. 36-02405-03608 . . 

: Greenwich No. 1 Mine 

. . 

. . 

. . 

: CONTEST PROCEEDING . . 

: Docket No. PENN 84-90-R 

Citation No. 2255016; 3/16/84 

Greenwich No. 1 Mine 

DECISIONS 

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

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner/Respondent; 

Joseph T. Kosek, Jr., Esq., Ebensburg, 

Pennsylvania, for Respondent/Contestant. 

Before: Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern a civil penalty 

proceeding initiated by MSBA against the respondent pur.suant 

1390 
to section llO(a) of the Federal Mine Safety and Health Act 

of 1977, seeking a civil penalty assessment for an alleged 

violation of mandatory safety standard 30 C.F.R. § 75.329, as 

stated in a section 104(a) Citation No. 2255016, with special 

"significant and substantial" (S&S) findings, issued by an 

MSHA inspector on March 16, 1984. The contest was filed by 

the contestant to challenge the legality of the citation. 

The cases were consolidated for hearing, and the parties 

appeared and participated fully therein. Greenwich filed a 

posthearing brief, but MSHA did not. However, the oral arguments presented at the hearing have been considered by me• in 

the course of these decisions. 

Issues 

The issues presented are whether or not the condition or 

practice cited by the inspector constitutes a violation of 

the cited mandatory safety standard, and whether the alleged 

violation was "significant and substantial." Additional 

issues raised by the parties are identified and disposed of 

in the course of these. decisions. 

Applicable Statutory and Regulatory Provisions 

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

P.L. 95-165, 30 u.s.c. § 801 et seg. 

2 •. Commission Rules, 29 C.F.R. § 2700.l et seg. 

Stipulations 

The parties agreed to incorporate by reference the following agreed-upon stipulations from a consolidated proceeding 

(PENN 85-204 and PENN 85-114-R), heard the day prior to the 

hearing in the instant cases (Tr. 191): 

1. The subject mine is owned and operated by the respondent/contestant Greenwich 

Collieries. 

2. Greenwich Collieries and the subject 

mine are subject to the Act. 

3. The presiding administrative law 

judge has jurisdiction to hear and decide 

these·cases. 

1391 
4. The subject citation issued in these 

proceedings was properly served on a representative of Greenwich Collieries and may be 

admitted to establish its issuance and 

service. 

5. Payment of the assessed civil 

penalty will not adversely affect the 

respondent/contestant's ability to continue 

in business. 

6. The respondent/contestant's annual 

coal production is approximately two million 

tons. Greenwich Collieries is a rnedium-tolarge mine operator. 

7. The respondent/contestant exhibited 

ordinary good faith in timely abating the 

cited condition or practice. 

8. Respondent/contestant's history of 

prior paid civil penalty assessments consists 

of 245 paid assessments for the first 

9 months of 1985, 214 in 1984, and 155 in 

1983. 

MSHA's Testimony and Evidence 

MSHA Inspector William Sparvieri testified as to his 

background and experience, and he confirmed that he issued 

the section 104(a) citation in question on March 16, 1984 

(exhibit G-1). He stated that he was dispatched to the mine 

to assist MSHA's ventilation technical support personnel who 

were conducting a ventilation survey at the mine. This survey was being conducted because approximately a month earlier, 

the mine had experienced a methane explosion which resulted in 

the death of three miners and injuries to several others. He 

confirmed that he cited a violation of section 75.329, after 

finding a 3.3 percent methane accumulation at bleeder evaluation point No. 14. He also confirmed that he collected one 

50 cc vacuum bottle sample of the mine atmosphere at that location, and he identified exhibit G-2, as the results of the 

laboratory analysis made of the sample by MSHA's Mt. Hope, 

West Virginia laboratory. The report reflected .24 carbon 

dioxide, 19.85 oxygen, 3.26 methane, and zero carbon monoxide 

(Tr. 4-9). 

1392 
Mr. Sparvieri stated that a company representative was 

with him when he took his bottle sample at the bleeder evaluation point, and he confirmed that the representative did not 

at that time protest the location where he took his sample 

(Tr. 9-11). He confirmed that the location was an approved 

bleeder evaluation point as shown on the mine ventilation 

plan, and that the company was required to make an examination at that location at least weekly on a 7-day cycle, and 

to record its findings in an approved book used for this purpose. He observed dates and initials at the bleeder point in 

question to substantiate the fact that the company had made 

examinations at that location (Tr. 12). 

Mr. Sparvieri stated that his initial methane reading of 

3.3 percent was made at a location where a sign was posted 

identifying it as Bleeder Evaluation Point 14. He proceeded 

50 feet inby that location and detected methane in the 

4.0 percent range with a hand-held methane detector. He 

decided not to go any further because he was unfamiliar with 

the mine ventilation as a whole, was aware of the previous 

methane explosion, was unsure as to how the gob was being 

ventilated, and was concerned that "questionable air may have 

been present" if he went any further (Tr. 13). He considered 

the methane reading which he took as extremely dangerous, and 

issued a section 107(a) imminent danger order as well as a 

citation for an excess of 2 percent methane at the bleeder 

evaluation point. The order was subsequently vacated and 

made a part of a previously issued imminent danger order and 

a section 103(k) order which restricted mine activity because 

of the prior methane explosion (exhibit G-3, Tr. 14). 

Mr. Sparvieri confirmed that he could not determine 

whether the operator was aware of the cited condition, and he 

had no way of knowing how long the methane condition had 

existed. He was not sure whether a recent examination of the 

area had been made by the operator because the mine had been 

closed by the previously issued orders. He took this into 

account when he rated the negligence as "low," but he believed 

that the cited condition created an explosion hazard. The · "possibility" or "potential" for an explosion was present, and 

he considered it reasonably likely tha.t an explosion hazard 

was present since had he proceeded inby.any further he could 

have encountered an explosive mixture of methane. Had an 

explosion occurred, the results would have been fatal, and 

16 miners would have been in danger. He estimated this number 

after observing miners working along the track haulage and 

other outby areas as he left the area to find a telephone to 

1393 
report his findings to his supervisor. He also observed rehabilitation work, rock dusting, timbering, and the movement of 

supplies along the track haulage (Tr. 17). 

Mr. Sparvieri could not state whether or not the gob 

area in question had previously experienced any ventilation 

problems, but he was aware of the fact that an explosion had 

occurred and that the mine had a history of methane liberation 

in excess of 2 million cubic feet a day (Tr. 18). 

On cross-examination, Mr. Sparvieri confirmed that at 

the time he issued the citation he was not a ventilation specialist, and that his duties did not normally entail the 

inspection of the No. 1 Mine. He stated that when he detected 

the methane in question, he tested the air movement in the 

vicinity of the bleeder evaluation point, but the air movement 

was so slight that it would not turn the blades on the anemometer. He then used a smoke tube and took approximately five 

or six readings over a 10-foot distance with chemical smoke 

and calculated an air reading of 1,311 cubic feet per minute 

as reflected on the Mt. Hope laboratory report. The smoke 

which he released during his test travelled outby in its 

proper direction (Tr. 19-20). 

Mr. Sparvieri stated that during his MSHA training he 

has received instructions concerning MSHA's standard procedures for making tests in connection with regulatory section 

75.329. He explained that once a determination is made as to 

location of the bleeder evaluation points as shown on the 

mine map, all air readings and methane examinations are made 

at these locations. When asked for his interpretation and 

application of section 75.329, Mr. Sparvieri responded as 

follows (Tr. 21-22): 

Q. I would like to show you the Code of 

Federal Regulations 75.329, and I would like 

you to read the area that I have underlined, 

beginning with "Air" down to "split." 

A. Underlined in black? 

Q. Yes, sir. 

A. Okay. "Air course through the underground areas from which pillars have been 

wholly or partially extracted and which 

enters another split of air shall not contain 

more than 2.0 volume percent of methane when 

1394 
tested at a point it enters such other 

split." 

Q. Okay. Could you interpret for me, in 

conjunction with what you read, the 2 percent 

volume of methane when tested at the point it 

enter such other split? 

A. My interpretation of that is prior to it 

enters the other split, not after it enters 

the main return. · 

Q. But do you have any specific instructions 

as to prior to when it enters the other 

split, the distance involved? 

A. Yes, sir. 

Q. Could you tell us that? 

A. Yes. For example, if the BE was down 

closer to where it enters that split, you 

would have to get inby the rib line of that 

entry, so that turbulence or swirling of air 

from the main return would not affect your 

reading in any way. 

Mr. Sparvieri confirmed that he made his methane test at 

the bleeder location approximately 70 to 100 feet away from 

the split where the air from the bleeder joined the air from 

the return split (Tr. 30-31). He explained the procedure he 

followed for determining the air mixing point as follows (Tr. 31-33)~ 

Q. In your MSHA training, were you ever 

told what procedure to use to determine the 

mixing point? 

A. What procedure to determine the mixing 

point? 

Q. Yes, sir. 

A. Yes. 

Q. would you tell us what that procedure is? 

A. To use chemical smoke and to get inby the 

turbulence and inby the swirling air, so that 

1395 
you are getting a true and exact reading off 

the gob or off of whatever you are ventilating 

and evaluating with that particular location. 

Q. Is that what you did here? 

A. Yes, I used smoke in a twofold purpose. 

I used it primarily to determine direction of 

air flow and to maintain or to get an accurate 

air measurement of CFM. When the smoke was 

discharged, there was no effects of swirling 

or turbulence in that area. We were inby the 

main return far enough where there was no 

mixing. 

Q. But isn't the procedure to go inby where 

the split is, release the smoke at that point, 

and follow the· current and then go l foot inby 

that position and take your reading? 

A. I am not familiar with that. My training 

is to evaluate gobs, abandoned areas, worked 

out and pillared areas either in their 

entirety, by walking the perimeter of these 

locations, or to examine these locations at 

specified points approved on the ventilation 

map in the form of IE's and BE's. Regardless 

if that IE or BE is 10 feet from the mixing 

point of 150 feet or 500 feet from the mixing 

point, MSHA instructions are to examine BE's 

at their approved location on the review map 

in effect at that mine, at that particular 

time, and that is what I did. 

Q. That MSHA instruction, is that out of the 

Indiana field office? 

Ao I can't answer for all of MSHA, but as 

far as I know, that is everywhere. 

Q. Where did you get your instruction on 

that specific point, was it from your field 

off ice? 

A. It was from my field office, it was from 

the district in Pittsburgh, and whether that 

policy and that training was discussed in 

Beckley, I can't answer that. 

1396 
Q. Do you know if that was discussed out of 

Hastings? Do you know what the position of 

the Hastings field office is? 

A. I have no idea, sir. 

Mr. Sparvieri stated that 2 percent methane is the limit 

permitted inby the air mixing point, and that the explosive 

quantity of methane ranges from 5 to 15 percent (Tr. 36). 

With regard to the existence of any ignition sources in the 

cited area, he stated that a possible roof fall could set off 

an explosive mixture of gas, but he could not state whether 

any electrical equipment was present in the air return (Tr. 

3 7) 0 

In response to further questions, Mr. Sparvieri confirmed 

that he contacted his supervisor James Biesinger prior to issuing the citation because he was unfamiliar with the mine ventilation, could not determine what areas of the mine could 

possibly be effected by the methane, and had no idea as to 

what areas of the mine he should close (Tr. 37-38). Although 

the mine had been closed by the prior orders, general mine 

maintenance was taking place, and this included water pumping, 

timbering, and rock dusting. No coal production was taking 

place, and the work being performed was permitted by certain 

modifications which were made to the orders (Tr. 39-40). 

Mr. Sparvieri stated that the roof conditions in the 

cited area were "fairly good," but that the inby gob areas 

continuously had roof falls. Water pumps were in operation, 

but he did not know how close they were to the cited area, 

and he did not know how much methane would be forced into the 

main return (Tr. 40). He confirmed that the prior methane 

explosion occurred when a spark from a water pump ignited an 

accumulation of methane from a gob which was not adequately 

ventilated (Tr. 41). 

Mr. Sparvieri stated that bleeder evaluation points are 

the designated locations for an operator to make methane 

checks for the purpose of compliance with section 75.329. He 

explained that an operator is required to travel and examine 

all mine areas on a weekly basis. However, in areas which 

are inaccessible, hazardous, or have had pillar falls, an 

operator may apply to the MSHA district manager for designated 

bleeder or intake evaluation points in lieu of walking the 

areas. In the instant case, the bleeder evaluation point in 

question was approved by the district manager, and the operator was relieved from walking and examining the entire perimeter of the gob area. However, during the weekly examination, 

1397 
the operator was required to go to the bleeder evaluation 

point to test for oxygen deficiency, determine the proper 

direction of air flow, and to evaluate the gob to insure that 

the ventilation was properly working (Tr. 42). 

Mr. Sparvieri stated that section 75.329 requires that a 

methane test be made at a point before the air enters the 

split. Assuming the test is made at a location 50 feet 

before the air enters a split, and that location is not a 

bleeder evaluation point, the test would not comply with section 75.329. He confirmed that this interpretation has been 

the way he has been instructed since he has been an inspector 

(Tr. 45). 

John A. Kuzar, MSHA Ventilation Specialist and Hastings, 

Pennsylvania, Field Office Supervisor, confirmed that the 

No. 1 Mine is under his supervision. He stated that he participated in the recovery operations after the methane explosion and that he travelled all of the gobs and examined all 

of the bleeder evaluation points during February and March, 

1984. He confirmed that prior to this time the mine was on a 

section 103Ci) 5-day spot inspection cycle because of the 

amount of methane liberated in a 24-hour period. The mine 

had problems on numerous gobs, and 11 of the 30 gobs had problems concerning evaluations and direction of air flow (Tr. 

62-64). He pointed out that ventilation was being established 

in some of these areas prior to reopening the mine, and some 

of the areas had high methane (Tr. 65). 

Mr. Kuzar stated that he visited the mine a day after 

Mr. Sparvieri was there and issued a section 104(d) order on 

March 17, 1984 (exhibit G-4), because of a pressure drop in 

the air (Tr. 67). Mr. Kuzar agreed that in the instant case, 

the theory of MSHA 9 s case is that when Mr. Sparvieri found 

3.3 percent methane, this indicated that the ventilation syst~m for the cited area was not maintained (Tr. 68). 

Mr. Kuzar explained the purpose of section 75.329 as 

follows (Tr. 71-76)g 

A. The purpose of 329 is to insure that you 

have good positive pressure over a gob, that 

you are diluting and rendering harmless any 

noxious gases. You are shoving it to your 

return. 

As to answering where you have checked to 

determine this, it can vary, you know, it 

depends. What it depends on is the point 

1398 
where you get the flow off of the gob, and it 

is not influenced by another air split. You 

are concerned that it is being diluted, there 

is enough pressure across that gob through a 

drop -- you have an inlet side; you have an · exhaust side. You are determining, at that 

evaluation point, if the gob cannot be traveled in its entirety around a parameter, and 

even when you do travel around a parameter, 

you are required to check your taps or your 

connectors for excess of methane. 

Now, where we get into the point of going 

inby further than the approved point, if an 

inspector finds an excess of 2 percent, and 

that area is accessible for examination, in 

other words, it is safe, no one is going to 

be endangered by roof or what have you, he 

should be going inby to determine, because in 

a lot of cases, you maybe only have to go a 

couple feet inby that point and you have the 

explosive mixture. So, in reality, you have 

a gob with over 5 percent of methane. 

Q. So what you are stating is that -- if I 

can sort of extract from this, and the purpose of 329 -- the 2 percent at this area 

would supposedly reflect an explosive range 

farther in? Is that what you are saying? 

A. Not in all cases. What I am saying is 

that the 2 percent point -- management establishes that point through their vent plan, 

under 316, is an area that they go on a 

weekly basis to make an examination. 

* * * * * * * 

Q. In your experience, Mr. Kuzar, when a 

company submits a bleeder evaluation point, 

what are they submitting that -- what is the 

purpose of that point? 

A. The purpose of them submitting for a 

bleeder evaluation point is something has 

occurred in that bleeder system that they 

cannot travel it in its entirety. Jhe purpose of bleeder evaluation points wera 

1399 
brought out for mines that were developed 

prior to the effective date of the law. 

Older mines, most of them, you had to establish some way to evaluate a gob, because in 

those days, they did not have to make good 

bleeders and leave them open. They normally 

piilared from the solid to the solid. 

Now, today, since '69, most vent plans, they 

require to leave a standing room, in other 

words, a bleeder system that goes around the 

entire perimeter of that gob. But there are 

cases where management uses all steps, everything that is available to them to maintain 

this entry safe for travel and weekly examination, but they just can't hold it up. 

So then management establishes a point where 

they can get the best evaluation of that gob 

without it being influenced by another split 

of air. It is submitted to the district manager. The district manager reviews it, he 

grants either tentative approval or final 

approval. If it is tentative approval, what 

happens then is it is sent out to the field 

office, an inspector is sent in there to 

determine if this is an adequate evaluation 

point, or, you know, area to evaluate it, but 

they establish the point. 

Q. And you have stated -- I just want to 

make this clear in my own mind -- that they 

establish the point. One of the reasons they 

establish the point is for the purpose of 

evaluating the air. 

A. Yes, ma'am, because they can no longer 

travel -- something has occurred in that 

bleeder entry that they can't travel it in 

its entirety. Normally, what is established 

is an inlet on one side and an exhaust on the 

other. So you are showing a drop of pressure 

across that gob by your readings you have 

here, your reading on your return side, and 

that reasonably assures that there is an air 

flow across that gob. 

1400 
Q. And they are also establishing that point 

for you to measure the air off the gob to 

make sure that it has not been- influenced by 

the air coming down the main return? 

A. Yes, ma'am. If I may, there is one other 

thing that I could add on these gobs. In a 

lot of instances, we use methane drainage 

holes from the surface. If, say, we can't 

get a good flow over the gob, they will drill 

a hole down into the gob from the surface. A 

lot of companies, they put pumps on. They 

pump the methane out, or else they leave it 

on free flow, because of a problem in a gob, 

due to caving type where you are not getting 

a good flow. 

Mr. Kuzar stated that the required amount of air over a 

gob is whatever it takes to dilute any methane, and the limit 

at the bleeder evaluation point is 2 percent CTr. 76). 

Mr. Kuzar was of the opinion that the 3.3 percent methane 

found by Mr. Sparvieri at the bleeder evaluation point, and 

the 4.0 percent he found inby that point, were not acceptable 

levels in those mine areas. He explained that there was an 

excess of 2 percent at the bleeder point, and as he proceeded 

inby it kept increasing, and he would have had an explosive 

level had he gone further (Tr. 78). Mr. Kuzar was of the 

opinion that the 3.3 and 4.0 percent methane indicated that 

the gob was not being properly ventilated (Tr. 81-82), and he 

explained as follows CTr. 83-84): 

THE WITNESS: The basis, what I have, is what 

they had to do to correct the condition to 

assure that the gob was properly ventilated. 

You had air going both ways on the gob, which, 

in turn, it was bottlenecked. The methane was 

bottlenecked in the gob. You didn't have the 

inlet entries. What they were required to do 

through the District, to assure that this gob 

was ventilated properly in the future, they 

drove entries and they had to cut into it to 

establish new inlet points to induce air over 

the gob. 

JUDGE KOUTRAS: Is that what they had to do 

to terminate this particular citation? 

THE WITNESS: Not Inspector Sparvieri's. The 

one I issued, they did. 

1401 
JUDGE KOUTRAS: Was that a different problem? 

THE WITNESS: Well, they weren't complying 

with 316. The gob wasn't ventilated, yes. 

Q. Mr. Kuzar, I know this may be difficult, 

but even without your order of the next day, 

just assuming that all you knew about this 

area was that you had traveled it and that 

Mr. Kuzar had found 3.3 percent methane, and 

then found 4 percent methane as he went further on, would you consider that to be -- in 

your opinion, is that indicative of proper 

ventilation in the mine? 

A. There wasn't proper ventilation there, or 

you wouldn't have had it. You wouldn't have 

had the methane. 

Q. Why would you not have had the methane 

there had there been proper ventilation? 

A. Because the amount of ventilation that 

would have coursed across the gobs, it would 

have diluted it at the E.P. point. By the 

time it reached the E.P. point, it would have 

been down at 2 or below. 

Mr. Kuzar stated that MSHA's policy is that the bleeder 

evaluation point is where an operator checks for compliance 

with section 75.329, to insure that no more than 2 percent 

methane is present at the point the air enters another split. 

Checks may also be made at bleeder taps or connectors. However, .if an inspector determines that the bleeder point is 

being influenced by another split of air, that bleeder location may be rejected, and another location is established 

where a true evaluation of the gob may be made of only the 

air coming over the gob (Tr. 88). He stated that MSHA has no 

fixed policy as to how close to the return one must be to 

make a methane check (Tr. 90). He explained MSHA's methods 

for determining whether an operator fixes his evaluation 

point too close to the main return air course as follows: 

A. What the inspector would do, he would use 

a smoke cloud. Now, if that air was going in 

towards that gob off of that return, he would 

have to follow that smoke to the point where 

the smoke changed and started coming out, so 

1402 
he could get a true evaluation. That is 

determining flow. If you don't have enough 

air to take a reading with an anemometer, you 

are going to use a smoke cloud to determine 

air direction. 

Q. And that is what the inspectors do to 

determine whether or not the bleeder evaluation point is an accurate determination of 

the air coming off the gob? 

A. That is what they do when they cannot use 

an anemometer ·due to low velocities. 

On cross-examination, Mr. Kuzar confirmed that MSHA has 

no written policy or procedure concerning where to test for 

methane pursuant to section 75.329 (Tr. 92). Referring to 

the operator's exhibit 0-1, and in response to several hypothetical questions, Mr. Kuzar marked the sketch to indicate 

where the air coming off the gob would meet with the air coming off the split on the right-hand side of exhibit <Tr. 96). 

Assuming a methane reading of 1.2 percent at that location, 

Mr. Kuzar stated that the operator would be in compliance 

with section 75.329, but not at the BE-14 location where 

3.3 percent methane was detected. If the only test was made 

at the location where 1.2 percent methane was found, the operator would be in violation of section 75.316 for not testing 

at the approved BE-14 location (Tr. 99). 

Mr. Kuzar stated that he did know as a fact that the 

ventilation plan for the No. 1 Mine required that all bleeder 

evaluation points have methane readings of 2 percent or less 

(Tr. 100). 

In response to further questions regarding exhibit 0-1, 

Mr. Kuzar stated that a true reading of the air coming off 

the gob could not be made at the location marked with a "X" 

because the air coming off the gob outby BE-14 is going out 

through the connector shown on the left-hand side of the 

sketch. The proper place to test would be inby the BE-14 

location where the total uninfluenced air is coming off the 

gob and before it enters the other split (Tr. 101-102). 

Mr. Kuzar stated that in District 2 there is an oral 

policy concerning the proper location to test for methane 

pursuant to section 75.329, that the policy is consistent 

throughout the district, and that he instructs his inspectors 

to proceed in the manner previously described (Tr. 102-103). 

Mr. Kuzar confirmed that District Manager Donald Huntley's 

1403 
policy is to check the flow of air off a gob at a point where 

it is not influenced by another current. This policy was 

also followed by supervisor James E. Biesinger (Tr. 104). 

Respondent's-Contestant's Testimony and Evidence 

Mine Foreman Richard Endler identified exhibit 0-2 as a 

portion of the mine map depicting the location of bleeder 

evaluation point BE-14. He stated that the BE point in question was probably established and approved in 1981, and he 

agreed that it is in an area which cannot be travelled because 

of hazards or roof conditions. The BE was located there so 

that mine management can establish air flow through this area 

of the mine (Tr. 109). 

Mr. Endler identified exhibit 0-3 as an enlarge diagram 

of the location of BE-14, and he explained his understanding 

of the proper procedure for checking methane at the mixing 

point (Tr. 110). He marked an "X" on the diagram as the location of the air mixing point in this case. He stated that he 

was instructed by MSHA supervisor James Biesinger and MSHA 

ventilation specialist Richard Schilling to use a chemical 

smoke tube at the midline of the entry to the right of the 

diagram where the air is coming off the main return, and to 

follow the smoke as it swirled to a point where it would proceed back out into the main return. He would then take one 

step inby that location and take his methane reading (Tr. 

110). He stated that he instructed his foreman to make methane checks following this same procedure (Tr. 111). 

Mr. Endler stated that assuming a methane reading of 

1.3 percent methane at the location of the "X" on the diagram, 

there would be no violation of section 75.329. Assuming methane readings of 2.9 and 3.1 at the BE-14 location, he would 

still be in compliance with section 75.329, because 

Mr. Biesinger and Mr. Schilling instructed him that he was 

allowed up to 4.5 percent methane at bleeder connectors, but 

at 4.5 percent the mine had to be withdrawn. He was also 

instructed that where the bleeder connector was influenced by 

the main return, and that the location where methane had to be 

below 2 percent was where it dumped into the main return (Tr. 

111-112). 

On cross-examination, Mr. Endler confirmed that the methane percentage figures which appear on diagram exhibit o-3, 

were the readings obtained by the management representative 

who accompanied Inspector Sparvieri during his inspection 

(Tr. 113). Mr. Endler had no reason to dispute the 3.26 methane reading at BE-14 made by MSHA's Mt. Hope laboratory, even 

1404 
though management's reading indicates a reading of 2.9 to 3.1 

(Tr. 114). 

Mr. Endler disagreed that the 1.3 methane reading at the 

"X" location on the diagram resulted from the air coming off 

BE-14 going down the crosscut immediately outby BE-14. He 

believed that the 1.3 reading resulted from the 1,311 CFM air 

current diluting the methane as it approached the main return 

(Tr. 114). He did not believe the air from the main return 

affected the 1.3 reading because it was taken "inby where the 

split dumps 11 (Tr. 115). 

In response to further questions, Mr. Endler stated that 

he received his instructions from Mr. Biesinger and 

Mr. Schilling orally underground at the mine. He reiterated 

that he was instructed to break the smoke device to determine 

where swirling air stopped and ended, and to take a step inby, 

which would be 3 feet, and to test at that point (Tr. 116). 

Mr. Endler confirmed that h.e was not with Mr. Sparvieri 

during his inspection. It was his understanding that 

Mr. Sparvieri made his methane reading at the BE-14 location 

for a distance of 10 feet as the air flowed down the entry 

rather than at the point where it dumped into the return (Tr. 

117). 

Mr. Endler stated that the distance from BE"".'14 to the 

"X" location on exhibit 0-3, is approximately 70 feet. Assuming methane readings of 2.9 to 3.1 at location BE-14, decreasing to 1.3 at the "X" mixing point, and .4 in the return, it 

was his opinion that the bleeder was "doing what it was supposed to" in diluting, rendering harmless, and carrying away 

the methane in the area. In the outby area, the methane was 

only .4 percent and 27,000 CFM's of air was coming down the 

return CTr. 119). 

Mr. Endler stated that the MSHA instructions he received 

with regard to the procedure for testing for methane were 

received in approximately May, 1984, and he conceded that the 

individuals who instructed him were not in the area of BE-14 

(Tr. 119). 

Mr. Endler stated that the mine ventilation plan reflects 

approximately 60 bleeder evaluation points, but that the plan 

does not state that the methane level at those points has to 

be at 2 percent. However, he conceded that if an inspector 

finds 3.1 methane at any bleeder evaluation point he will 

issue a citation because it is over 2 percent. In his view, 

3.1 percent methane at the BE point does not establish that 

1405 
the ventilation is not adequate when the air reaches the main 

return CTr. 124-125). 

Mr. ~ndler stated that the crosscut immediately outby 

BE-14 as depicted on exhibit 0-3, was not an open entry. He 

stated that all of the coal had been pillared out and 

extracted and the area was caved. The area had rock across 

it, it was not an opening that one could travel through, and 

the "cross hatches" on the diagram indicates a cave area which 

occurred in 1981, and no airflow would be going in that direction (Tr. 128-129). Mr. Endler indicated that the caved area 

extended to the corner of the rib of the crosscut shown on the 

diagram, but conceded that it was possible for some of the air 

to seep through the caved area since they are not air tight 

(Tr. 131-132). 

Mr. Endler explained the effect of the air coming off 

the gob at BE-14, and the caved crosscut as follows (Tr. 

135-138): 

JUDGE KOUTRAS: Mr. Endler, you have heard 

all the argument now. What is the effect of 

the undiluted air theory in your mind? I 

mean have you heard about that you are only 

supposed to test air that is undiluted to 

determine whether or not the gob ventilation 

is doing its job? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Isn't this air being diluted 

if it goes down this --

THE WITNESS: No, sir, that is all gob. The 

main return is one crosscut away from there. 

JUDGE KOUTRAS: Do you mean to tell me that 

the air coming down this entry, some of it is 

not going to escape down here? 

THE WITNESS: It is all the same air. 

JUDGE KOUTRAS: What do you mean it is all 

the same air? 

THE WITNESS: It's all the same air that is 

coming through the gob. It is not being 

diluted by the return air. That air that is 

1406 
coming through there is all trying to get out 

to the main return. 

JUDGE KOUTRAS: It is trying to get out this 

way? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Does some of it go down this 

way? 

THE WITNESS: Yes, but it is still trying to 

get out to the main return. 

JUDGE KOUTRAS: I don't care whether it is 

trying to. Is some of it going down this 

way? 

THE WITNESS: Possibly. 

JUDGE KOUTRAS: And could theoretically some 

of the methane seep out down that way? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: And would that be an accurate 

reading at this point? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Why would it be accurate .at 

this point if some of it is escaping? 

THE WITNESS: Because the majority of it would 

be going down that entry to get to the main 

return because it is an open entry. The rest 

of it -- there 'may be some -- I can't deny 

that there might be some filtering through the 

cave. But that is what your air is supposed 

to do. It is supposed to filter through all 

of the cave and dilute and render harmless all 

the methane in the entire cave, not just one 

specific area. 

* * * * * * * 

Q. The language of 329 is, ". wh~n tested 

at the point it enters such other split." 

referring to another split of air. If air 

1407 
is going down here, is this another split of 

air? 

A. No. No, it's not. 

Q. Where is your other split of air? 

A. It's the same split of air that is coming 

from that entire gob that is going through 

there. It is the same air. 

Q. Where is the other split of air. 

A. The other split of air is over here in 

the main return that this air is trying to 

filter into. 

Mr. Endler conceded that a 3.26 percent methane reading 

at the BR-14 was not personally acceptable to him, and that 

he would not be satisfied with 3 percent methane at any BE 

location because he believes it is dangerous. Although MSHA 

representatives had advised him that up to 4.5 percent methane is acceptable for air coming off the bleeder connectors 

as a matter of law, Mr. Endler's personal opinion is that it 

is not acceptable (Tr. 139-140). He admitted that as a mine 

foreman, he would not be comfortable with 3 or 4 percent methane at the BE point because he would be concerned that the 

ventilation may not be adequate CTr. 141, 143-144). 

Larry Luther, testified that he has 17-1/2 years of mining experience and that he is employed by the respondent as a 

surveyoru and periodically performs duties as a mine examiner 

examining BE points and air courses. At the time the citation 

was issued in this case, he was performing these duties (Tr. 

151). 

Mr. Luther confirmed that he travelled with Inspector 

Sparvieri on March 16, 1984, and that six BE points were examined that day (Tr. 152). Referring to the diagram, exhibit 

0-3, Mr. Luther stated that he and Mr. Sparvieri walked up 

the return to the BE-14 location and he made a methane reading 

of 2.9 to 3.1 percent, and Mr. Sparvieri recorded 3.3 percent. 

Mr. Luther recorded 2.5 methane outby the BE-14 location, 1.3 

further outby, and .4 further outby. Mr. Sparvieri believed 

it was safe, and they returned to the BE-14 location and inby. 

Mr. Luther recorded a reading higher than 2.9 inby the BE-14 

location (Tr. 152-153). 

1408 
Mr. Luther stated that after making the methane tests, 

he and Mr. Sparvieri continued to take air readings, but their 

anemometers would not turn. Mr. Sparvieri then released a 

puff of smoke from a smoke tube and it went to the roof and 

then returned outby. They then decided to make an air reading 

with smoke at 10 foot intervals and the smoke was released at 

the BE point. The air was timed at 1,311 cubic feet per minute as it returned out the entry toward the main return the 

way it was supposed to. He did not recall travelling down the 

entry immediately outby the BE point (Tr. 153-154). 

On cross-examination, Mr. Luther confirmed that he took 

his methane readings with a hand held CSE methane detector, 

but that he did not test the air where he recorded 2.5, 1.3, 

and .4 percent methane (Tr. 154). After testing the air at 

the BE point, he and Mr. Sparvieri left because he wanted to 

use a telphone, and it took them 45 minutes to an hour to 

reach the surface. The citation was served on him approximately an hour and a half later (Tr. 156). 

Mr. Luther stated that he had no difference of opinion 

with Mr. Sparvieri at the time he issued the citation and did 

not suggest that he was taking his air reading at the wrong 

place. He confirmed that he has tested for methane at designated BE points, as well as BE points which have to be moved 

because of lack of physical access. In these instances, he 

would have to move back 20 to 30 feet to make his tests (Tr. 

156-157). 

Mr. Luther agreed with the procedure for making air readings as explained by Mr. Endler, and confirmed that he has 

made tests in this manner. Mr. Luther stated that it was his 

understanding that 3.3 percent methane at a BE point was 

acceptable, but found out differently when the citation was 

issued. He did not ask Mr. Sparvieri why he was issuing the 

citation (Tr. 158). 

MSHA's Rebuttal Testimony 

John Kuzar testified that during the 11 years he has been 

in the district he has never known that 4.0 percent methane 

was permitted at a bleeder evaluation point (Tr. 160). He 

stated that during the hearing he telephoned his office and 

spoke with MSHA Inspector Sam Burnatti concerning the mine 

ventilation plan on file in his office. Mr. Burnatti reviewed 

the applicable plan which was in effect at' the time the citation was issued. Plan review 25 or 24 was in effect, and 

Mr. Burnatti reported that the plan specifically stated that 

2 percent. methane was permitted at a BE point (Tr. 161). 

1409 
Referring to exhibit 0-3, Mr. Kuzar stated as follows 

(Tr. 161-164): 

Q. Now, again with your knowledge of this 

area and trying to concentrate solely on 

March 16, the day before you issued your citation. We're talking about Mr. Sparvieri's 

citation. In your opinion, using this map 

which has been submitted as Operator's 

Exhibit 3, the area where it's listed as 1.3 

methane, is it possible for you to tell from 

that map whether that would be an acceptable 

spot to measure under 329, the section that 

we have been talking about where the split 

enters the other split? 

A. Prior to it entering? Yes, but for the 

purpose of a B.E. point where it was established, no. 

Q. And I would draw your attention to this 

area which is cave which we have established 

goes down here. In your experience as a ventilation expert, would it still be possible 

for air to dilute through that crosscut as we 

have been talking about here today? 

A. Yes, it's possible for air to go over 

that cave. It depends how tight it is, what 

have you, the amount, because it's trying to 

get to return. 

Q. Do you consider this· to be an adequate 

spot to measure the air coming off the gob 

under section 75.329? I am pointing to where 

it is 1.3 percent. 

A. No. 

Q. We have heard some suggestions that because 

the air would have diluted to 1.3 percent at 

this time the ventilation plan -- or the ventilation that was in effect would have been working, would have been effectively diluting the 

methane. Do you agree with that statement? 

A. If they had 1.3 out here as indicated, 

yes it would be diluting. 

1410 
Q. What if they had an area of 3.3 percent 

here, would that be diluted? 

A. No, itf s not diluted at this point, where 

the approved location is for them to evaluate. 

Q. And how about where it is 2.5 in the crosscut area? rs that diluted? 

A. No, it's over 2.0. 

Q. Are there circumstances which could 

explain the diminution of the percentage other 

than having proper ventilation in effect? Do 

you understand what I am asking? 

A. That would have reduced it? 

Q. Yes. 

A. The only thing that could have reduced it 

distance would have a bearing on it. And 

if it was being influenced by this other split 

of air is the only two things that could have 

had any bearing on a reduction of the amount 

of methane from this point to this point. The 

distance -- it's being diluted as it is moving. 

You have distance here. The same thing down 

here. 

And the reason also, there would probably be 

some of the methane as indicated here. There 

was 2.5 here through their readings. So some 

of this gas was going out this way. So in 

time if you were to evaluate here, you would 

not be getting all the methane off of this gob. 

You are getting it here, but you wouldn't be 

getting it here because some of the gas is 

being coursed up this direction. It shows 2.5. 

And it shows 1.3 here. 

Q. So you are saying the fact that 2.5 is 

there proves that some of the gas is being 

coursed out? 

A. Yes ma'am. 

1411 
Q. And is that proper ventilation for this 

area, for the gas to be coursed out that way? 

A. There would be nothing wrong with it. It 

has to be coursed to return. But the fact 

remains that they had over 3 percent at this 

bleeder evaluation point. 

Q. So what you're saying is although it may 

course out that way, you still are not getting 

an accurate reading of what is off the gob? 

A. Back here? 

Q. Coming off here, back here, I'm sorry. 

A. No. You are not getting it all. You are 

getting a portion, a portion of it here and 

portion of it that is going out through here. 

That is why the B.E. point is inby this corner. You are getting it all. 

Mr. Kuzar stated that while he was aware of citations 

issued for violations of section 75.316 at the time, he was 

not aware of any other citations for violations of section 

75.329 {Tr. 165). He confirmed that prior to the issuance of 

the citation in this case no one from mine management advised 

him that the BE point was not an accurate place to measure 

for air entering another split (Tr. 166). 

Mr. Kuzar confirmed that it is MSHAis position that the 

air must be diluted to the point where there is 2 percent or 

lower methane by the time the air reaches any bleeder evaluation point in the mine, and that if it is above 2 percent 

when it reaches the BE point, the respondent would not be in 

compliance with sections 75.316 and 75.329 (Tr. 170). He 

confirmed that every approved BE point in the mine is at a 

location immediately before the air is split. Anywhere where 

there is a possibility that the air would be diluted or 

escapes after it passes a BE point is not a valid place for 

testing. The BE point would be established inby such a location so that there is a true evaluation off the gob area. 

Findings and Conclusions 

Fact of Violation 

The section 104(a) "S&S" Citation No. 2255016, issued in 

this case by Inspector Sparvieri on March 16, 1984, charges 

1412 
the respondent with an alleged violation of mandatory safety 

standard 30 C.F.R. § 75.329, and the condition or practice is 

described as follows: "3.3% of methane was detected at 

bleeder evaluation point No. 14. Air sample bottle No. I 1059 

(50 cc) was collected at this location. The 3.3% of methane 

was detected with a MSA M402 hand held methane detector." 

30 C.F.R. § 75.329, provides in pertinent part as 

follows: 

On or before December 30, 1970, all areas 

from which pillars have been wholly or partially 

extracted and abandoned areas, as determined by 

the Secretary or his authorized representative, 

shall be ventilated by bleeder entries or by 

bleeder systems or equivalent means, or be 

sealed, as determined by the Secretary or his 

authorized representative. When ventilation of 

such areas is required, such ventilation shall 

be maintained so as continuously to dilute, render harmless, and carry away methane and other 

explosive gases within such areas and to protect 

the active workings of the mine from the hazards 

of such methane and other explosive gases. Air 

coursed through underground areas from which 

pillars have been wholly or partially extracted 

which enters another split of air shall not contain more than 2.0 volume per centum of methane, 

when tested at the point it enters such other 

split. * * * (Emphasis added.) 

In Itmann Coal Company, 2 FMSHRC 1986, July 31, 1980, 

Commission review denied, September 2, 1980, final order 

September 9, 1980, 1 MSHC 2509, former Commission Judge 

James A. Laurenson affirmed a violation of section 75.329, 

based on an inspector's detection of 9 percent methane in an 

abandoned mine area at a point approximately 1/2 mile inby a 

point where two splits of air met. Itmann disputed MSHA's 

contention that section 75.329 requires that when a ventilation system is used in an abandoned area, a two-pronged test 

must be met~ Cl) the ventilation system must continuously 

dilute, render harmless, and carry away methane and other 

explosive gases; and (2) air from abandoned areas which enters 

another split of air shall not contain more than 2 percent 

methane. Itmann contended that section 75.329 should be read 

as a whole, requiring only one thing; that air from abandoned 

areas which enters another split of air shall not contain more 

than 2 percent methane. In rejecting Itmann's contention, 

Judge Laurenson stated as follows at 2 FMSHRC 2001 and 2003: 

1413 
The legislative history of section 

303(z)(2) of the 1969 Act (75.329) indicates 

that Congress intended for there to be a 

two-pronged test regarding ventilation of abandoned areas. * * * 

* * * Just because the percentage of methane 

is below 2 percent does not mean that an operator has not violated this section of the Act. 

Even if the percentage of methane in the air 

from the abondoned Csic) areas which enters 

another split of air is below 2 percent, the 

operator violates this section if it has not 

maintained ventilation "so as continuously to 

dilute, render harmless, and carry away methane and other explosive gases" in the abandoned area. The legislative history states 

that this regulation means that "such ventilation will be adequate to insure that no explosive concentrations of methane or other gases 

will be in this area." Leg. Hist. 1969 Act at 

1044. 

In Christopher Coal Company, deqided by former Commission 

Judge John Cook on October 18, 1976, affirmed by the · Commission on October 25, 1978, 1 MSHC 1688, Judge Cook 

affirmed a violation of section 75.329, based on an inspector's finding 4 percent methane with a detector (5.36 percent 

bottle sample), at a cement block regulator in a bleeder entry. 

The inspector also measured the methane in the main return at 

a location outby the intersection in the bleeder entry such 

that it represented the content after the bleeder split of air 

had joined the main return split, and found 1.6 percent methane. The operator contended that section 75.329 does not 

require that the methane test be taken before the bleeder 

split of air enters the main return split. In rejecting this 

argument and affirming the violation, Judge Cook stated in 

pertinent part as follows: 

A plain reading of the regulation makes 

it apparent that the air which is to be tested 

is the air which is 11 ** * coursed through 

underground areas from which pillars have been 

wholly or partially extracted * * *," not a 

mixture of such air with the main return air. 

And it is to be tested "* * * at the point it 

enters such other split," not after it enters 

the other split. 

1414 
It is clear that the test must be made 

before the bleeder air actually leaves the 

bleeder split of air and joins with the main 

return split of air. To interpret the regulation any other way would make it meaningless 

s inc-e the test, under the Opera tor's theory, 

would only indicate what the methane content 

was in the main return after a mixture took 

place. The regulation clearly was designed to 

ascertain what methane content would be entering the main return split of air. 

With regard to the question as to whether the place the 

inspector performed his methane test satisfied the requirement 

found in section 75.329 that it be at the point it enters such 

other split, Judge Cook stated that "It is clear that the test 

of the bleeder split of air is to be made as close as is reasonably possible to the place where the two splits of air join 

but before the bleeder air enters the other split. 11 On the 

facts presented, Judge Cook made the following additional 

findings: 

MESA has proved that the inspector took 

the readings as close as is reasonably possible. As set forth above the inspector stated 

that he took the measurements and sample at 

the regulator because of the turbulence caused 

by the intersection of the main entry split of 

air with the bleeder split of air as well as 

by the regulator itself. He was of the opinion that he took the measurements at the location where they would be most accurate because 

of the turbulence between that location and 

the actual intersection of the two entries 

(Tr. 26-27, 31, 57-58, 65, 71-72). He stated 

that that measurement would show the methane 

content in the air current coming out of the 

bleeder entry (Tr. 30). 

The Operator has not challenged the fact 

that such turbulence existed. In fact the 

General Superintendent of the Osage Number 

3 Mine stated that there could be turbulence 

within the 13 south entry <the bleed.er entry} 

(Tr. 128}. 

In support of the inspector, Mr. Elam, a 

ventilation specialist with MESA, stated that 

1415 
the point at which the inspector made the methane measurement in this case is the same location that MESA's ventilation people would have 

been instructed to make the check (Tr. 90). 

He stated that within the area of the regulator, it is possible to get a fairly accurate 

volume and methane reading. He described 

swirls and eddys beyond the area where the 

measurement was taken, caused by the regulator 

and by the intersection of the two splits of 

air (Tr. 92-93). 

It is therefore apparent that the inspector took his readings at a location as close 

as is reasonably possible to the place where 

the two splits of air join, but before the 

bleeder air entered the main entry. It does 

not appear that there are any factors affecting the bleeder air which could decrease its 

methane content between the place of measurement and the actual physical intersection of 

the two entries. 

* ·* * * * * * 

In light of the mandate of the federal 

courts, a narrow, restrictive reading of the 

Act will not be made. Under the facts in our 

case, the operator has in effect asserted, 

among other things, that the tests for methane 

should have been made at the point where the 

bleeder entry and the main entry intersect. 

The problem, however, was that the turbulence 

in the Osage No. 3 Mine at that point would 

result in an inaccurate reading (Tr. 27, 31, 

34, 55, 61, 62, 63, 65, 91, 93, 102, 108). 

The inspector made his measurements in what he 

considered was the "threshold of the splits" 

(Tr. 70). He made his test at a location 

which was the point nearest to the place where 

both splits joined, that he could obtain an 

accurate measurement (Tr. 26-27). 

Consequently since it is apparent that 

the inspector performed the test of the 

bleeder split of air at a location which was 

as close as was reasonably possible to the 

point where the two splits of air joined, it 

is found and concluded that MESA has proved by 

1416 
a preponderance of the evidence that the Operator violated 30 CPR 75.329 as alleged in the 

petition herein. 

In its posthearing brief, Greenwich agrees that the 

Itmann Coal Company and Christopher Coal Company decisions are 

applicable precedents in the case at hand. Greenwich also 

cites a decision by Judge Melick in Beckley Coal Mining 

Company, 3 FMSHRC 2593, November 9, 1981, vacating a violation 

of section 75. 329, becaus.e of the alleged failure by Beckley 

to reduce the methane concentration to below 2 percent in a 

bleeder system crosscut. 

In the Beckley case, the inspector measured more than 

3 percent methane in a panel from which pillars had been 

wholly or partially extracted and had been abandoned as a gob 

area. Four bottle samples were taken and the methane content 

was 2.71 percent, 2.67 percent, 2.74 percent, and 2.73 percent. The inspector further stated that the air movement was 

minimal; however, he did not use an anemometer or smoke tube 

to measure the air mo.vement. The operator disagreed with the 

inspector's evaluation of the air movement, and the next day 

simulated the same conditions as the inspector found, ·then 

conducted a smoke tube test. The released smoke moved out of 

the crosscut and into the bleeder. 

In dismissing the violation, Judge Melick stated that the 

question of whether a violation of section 75.329 exists 

depends on the adequacy of the ventilation system, and not 

solely upon the levels of methane found in any particular 

crosscut. The test applied by Judge Melick was whether the 

ventilation system is being "maintained so as to continuously 

dilute, render harmless and carry away methane." He concluded 

.that the only evidence to suggest the inadequacy of the ventilation system was the one time series of methane readings 

showing a non-explosive 2 percent to 3 percent methane concentration and the inspector's opinion that there was no perceptible movement of air. 

Greenwich submits that no violation of section 75.329 

occurred based upon the methane levels detected on March 16, 

1984. Greenwich asserts that it had a reading of 1.3 percent 

methane at the mixing point-less than the violative 2 percent -- and a reading of 3.3 percent at bleeder evaluation point 

No. 14 -- less than the violative 5 percent explosive range, 

and that MSHA has presented no credible evidence that 

Greenwich violated section 75.329 by failing to maintain its 

ventilation so as to "continuously dilute, render harmless 

and carry away methane and other explosive gases" and 11 to 

1417 
protect the active workings of the mine from the hazards of 

such methane and other explosive gases." 

Greenwich concludes that its testimony demonstrated that 

the ventilation in the vicinity of bleeder evaluation point 

No. 14 was acting properly and in compliance with section 

75.329, and that the ventilation there was in fact diluting, 

rendering harmless and carrying away methane as evidence by 

the 1.3 perent reading at the mixing point. 

MSHA did not file a posthearing brief in this case. 

However, during oral argument presented at the close of the 

testimony, MSHA's counsel agreed that the cases cited by 

Greenwich, including the two-prong test enunciated in those 

decisions, would apply in any determination as to whether 

Greenwich has violated section 75.329. 

MSHA argues that the legislative intent of section 

75.329, is to preclude the build-up of explosive range of 

methane in abandoned gob areas. MSHA also agrees that section 75.329 requires the mine ventilation to be maintained so 

as to continuously dilute, render harmless, and carry away 

methane and other explosive gases from such areas. MSHA also 

agrees that the 2 percent methane requirement found in section 75.329, is an additional precautionary provision to 

insure against methane above that level finding its way into 

another air split where the air coming off the gob enters 

that other split. 

MSHA asserts that on the facts of this case, the bleeder 

evaluation point is the most accurate location for the taking 

of methane tests, and that Greenwich has offered no evidence 

to establish that its 1.3 percent methane reading at the mixing point was not affected by air turbulence from the main 

return. MSHA finds "a problem" with the crosscut immediately 

outby the bleeder evaluation point, and states that credible 

testimony from its witnesses reflects that the crosscut itself 

could have diluted the air directly off the gob. Citing the 

Christopher Coal Company case, MSHA agrees that the methane 

test should be made as close as reasonable possible to the 

point where the two splits of air joined in this case. Since 

accuracy is important, MSHA asserts that section 75.329, 

should be liberally construed to insure that any air coming 

off the gob was not a dangerous percentage. Since bleeder 

evaluation point 14 was located directly before the crosscut 

in question, MSHA believes that the evaluation point is the 

most accurate place to test for methane. Assuming that I find 

otherwise, MSHA argues in the alternative that the ventilation 

1418 
was not maintained so as to continuously dilute the methane 

coming off the gob. 

With regard to Greenwich's reliance on the Beckley Coal 

Mining Company case, MSHA asserts that it is distinguishable 

from the fact presented here, notwithstanding Greenwich's 

arguments that 3.26 percent and .4 percent methane readings 

are not in the "explosive range. 0 MSHA points out that 

Greenwich conceded that 3 percent methane would cause them 

concern, and that the mine had experienced a prior explosion, 

and that it was "obviously" experiencing problems with methane and its ventilation. 

Greenwich argues that the mixing point for bleeder evaluation No. 14 was at the point shown on exhibit 0-3, as indicated by its 1.3 percent methane reading. MSHA's ventilation 

specialist Kuzar agreed that this was the location where the 

air coming off the gob would meet with the air coming off the 

split from the main return (Tr. 96, exhibit 0-1). He also · agreed that this location would be an acceptable spot to measure the methane pursuant to section 75.329 prior to the air 

entering the other split. Mr. Kuzar conceded that the 

1.3 percent methane reading at that location would indicate 

that the ventilation was working effectively to dilute the 

methane. He also agreed that the 2.5 percent methane reading 

at the location immediately outby the 1.5 percent reading 

proves that the methane is being coursed out of the area to 

the return and he stated that "there would be nothing wrong" 

with doing it that way. 

Mr. Kuzar's disagreement lies in the fact that he 

believes the proper location to test the air for methane 

before it reached the mixing point and entered the return 

split was at the established bleeder evaluation point No. 14, 

which in this case was located approximately 70 feet from the 

mixing point spot plaimed by Greenwich where it found 1.3 percent methane, and inby the point where 2.5 percent methane 

was found. Since the methane found at the bleeder evaluation 

point was over 3.0 percent, Mr. Kuzar questioned the accuracy 

of Greenwich's readings with respect to the air coming off 

the gob because he believed that some of it was escaping down 

the crosscut immediately outby the evaluation point. 

Mr. Kuzar confirmed that MSHA has no written policy or 

procedure concerning where to test for methane pursuant to 

section 75.329, and he did not know for a fact that 

Greenwich's ventilation plan required that all bleeder evaluation points have methane readings of 2 percent or less. 

Mr. Kuzar confirmed that MSHA's district No. 2 oral policy is 

1419 
that the proper place to test for methane would be inby 

bleeder evaluation point No. 14 where the total air coming 

off the gob is not influenced by other air currents before it 

enters another split. Mr. Kuzar conceded that the 1.2 percent 

methane reading made by Greenwich at the locations shown on 

exhibits 0-1 and o-3, would place it in compliance with section 75.329 at that location, but not at the bleeder evaluation point No. 14 where 3.3 percent methane was detected. Had 

Greenwich tested only at the location where it found 1.2 percent methane, Mr. Kuzar believed that it would be in violation 

of section 75.316 for not testing at the designated evaluation 

point. 

In this case, MSHA has presented no credible evidence to 

establish that the air located at the mixing point as defined 

by Greenwich where it found 1.3 percent methane was influenced by air currents off the main return or by turbulence or 

swirling prior to it leaving the bleeder and joining with the 

return air. Inspector Sparvieri made his methane test at 

bleeder evaluation No. 14 which was approximately 70 to 

100 feet inby the mixing point. He made a smoke tube test at 

the bleeder point to determine whether their was any turbulence or swirling at that location, but made no tests outby 

that location at or near the mixing point. It seems obvious 

to me that the inspector's failure to test the air at the 

mixing point was because he believed the bleeder location was 

the proper place to test. In fact, Mr. Sparvieri stated that 

even if the test had been made at a location 50 feet before 

the air entered the split, if the test location were not a 

bleeder evaluation point, the test would not comply with section 7503290 He also stated that he would not accept any 

test made at locations other than bleeder evaluation points 

as compliance even if the air mixing point were 150 to 

500 feet outby the bleeder point. Mr. Sparvieri's arbitrary 

assumptions and conclusions that all of the air outby a 

bleeder evaluation point for purposes of accuracy and compliance with section 75~329, are rejected. 

Inspector Sparvieri conceded that at the time he issued 

the citation he was not a ventilation specialist, was unfamiliar with the mine ventilation system, was not sure how the 

gob area was being ventilated, did not know whether the gob 

area had experienced prior ventilation problems, and that he 

could not determine what areas of the mine could be affected 

by the methane which he found. He conceded that the explosive 

range of methane is 5 perent to 15 percent, and there is no 

evidence that he detected those levels in this case. Although 

he indicated that the air movement at the vicinity of bleeder 

evaluation point 14 where he detected 3.3 percent methane was 

1420 
11 slight,H he confirmed that a smoke test over a 10-foot distance in that area reflected air movement at 1,311 cubic feet 

a minute, and that the released smoke was travelling outby 

that area in the proper direction. 

Inspector Sparvieri made his initial methane reading at 

bleeder ·evaluation point 14, and he detected 3. 35 percent 

methane. Readings taken by Greenwich's representative 

detected methane between 2.9 percent and 3.18 percent. 

Inspector Sparvieri then proceeded inby the evaluation point 

for approximately 50 feet, and after 4 percent methane, he 

proceeded no further. Readings taken by Greenwich outby the 

evaluation point reflected 2.5 percent, 1.3 percent, and 

.4 percent. Inspector Sparvieri could not recall taking and 

readings outby the evaluation point. 

Respondent 1 s witness Endler testified that based on 

Greenwich's methane readings which indicated decreasing levels 

of methane outby the bleeder evaluation point up to and including the mixing point before the air entered the return split, 

the mine ventilation system was doing .the job of diluting, 

rendering harmless, and carrying away any methane from the gob. 

He pointed out that the methane in the outby areas was only 

.4 percent and that 27,000 CFM's of air was coming down the 

main return. 

Mr. Endler stated that the crosscut immediately outby 

bleeder evaluation point 14 was not an open entry, and that 

all of the coal had been pillared and extracted from the area 

and that it had caved. Rocks were across the entry and it 

could not be travelled. He conceded that the caved area was 

not 11 air tight'1 and that it was possible for some of the air 

to find its way into the area before reaching the mixing 

point. However, he indicated that the air is supposed to 

filter through the caved area to dilute any methane which may 

be present, but that the majority went to the return. He 

believed that the 1.3 percent methane reading at the mixing 

point resulted from the 1 0 311 CFM air current diluting the 

methane as coursed its way to the main return, and that 

the air from the return did not affect that reading oecause 

it was made inby the split location where the air dumped into 

the return. 

Mr. Endler also testified as to the procedures he had 

always followed in making his methane tests at air mixing 

points pursuant to section 75.329, and to insure against any 

possible inaccuracies caused by air turbulence or swirling. 

He indicated that he used the described procedure, and 

instructed his foremen to do the same, on the basis of oral 

1421 
instructions received from MSHA supervisory and ventilation 

personnel. MSHA has not rebutted this testimony, and after 

viewing Mr. Endler on the stand during the course of the hearing, I find his testimony to be credible. 

MSHA has not established by any credible evidence that 

the applicable mine ventilation plan requires that all bleeder 

evaluation points have methane readings below 2 percent, nor 

do I find any provision that mandates that bleeder evaluation 

points are the only acceptable locations for conducting methane tests to insure compliance with the requirement of section 

75.329 that air leaving the gob and entering another split of 

air contain less than 2 percent methane. 

After careful consideration of all of the evidence and 

testimony adduced in these proceedings, including the arguments advanced by the parties in support of their respective 

position, I conclude and find that Greenwich has the better 

part of the argument that it was in compliance with section 

75.329, and that MSHA has failed to establish a violation by 

a preponderance of the evidence of record. 

I conclude and find that Greenwich has established 

through the credible testimony of its witnesses that the air 

being coursed away from the gob area in its proper. direction 

to the return and out of the mine was in fact decreasing the 

amount of non-explosive methane being ventilated through the 

gob area. I also conclude and find that MSHA has not established through any credible evidence that Greenwich's ventilation system was not being maintained so as to continuously 

dilute, render harmless and carry away explosive levels of 

methane and other explosive gases. 

I conclude and find that Greenwich's methane test at the 

mixing point reflected in exhibits 0-1 and o-3, where the 

methane was at a 1.3 percent level, was a reasonable and 

proper place to take the test to insure compliance with section 75.329, and that MSHA has not established through any 

credible evidence that the air was otherwise diluted or disturbed by a turbulence or swirling, ·or that Greenwich's methane test was unreliable or inaccurate. Since the test was at 

a point before the air off the bleeder joined with the air 

off the return, and indicated 1.3 percent methane, which is 

below the 2 percent mandated by section 75.329, I further 

conclude and find that Greenwich was in compliance with that 

standard. 

1422 
In view of the foregoing findings and conclusions, 

Greenwich's Contest IS GRANTED, and the contested section 

l04(a) Citation No. 2255016, issued on March 16, 1984, IS 

VACATED, and MSHA's civil penalty proposal IS DISMISSED • 

;../:t/t:~el'A. . JtA4L Koutras 

(,~ · · 

Administrative Law Judge 

Dis.tribution: 

Linda M. Henry, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail> 

Joseph T. Kosek, Jr., Esq., Greenwich Collieries, P.O. 

Box 367, Ebensburg, PA 15931 (Certified Mail) 

/f b 

1423 
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. 

G & G COAL COMPANY, INC., 

Respondent 

SEP 191986 

. . 

. 

. 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. SE 86-36 

A.C. No. 40-02831-03519 

No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Melick 

This case is before me upon a petition for assessment 

of civil penalty under Section 105Cd) of the Federal Mine 

Safety and Health Act of 1977 (the Act). Petitioner has filed 

a motion to approve a settlement agreement and to dismiss the 

case. A reduction in penalties from $6,800 to $5,780 is 

proposed. In support of his motion the Petitioner states in 

part as follows: 

The citations issued herein resulted from an 

inspection of a fatal accident at respondent's No. 

1 Mine, occurring at approximately 8:30 p.m., July 9, 

1985. The accident, involving the detonation of 

explosives, resulted in the death of miner Ricky 

Kilgore, age 28, a utility man with approximately 

eight years mining experience. The investigation 

disclosed that the accident occurred on the maintenance shift and that in addition to the deceased 

two other miners were physically present in the No. 

1 Mine. Further the investigation disclosed that 

the deceased miner alone had drilled and charged, 

in sequence, the Nos. 5 and 6 working places in 

preparation for blasting from the solid. Immediately prior to the blast and resulting accident, 

the deceased miner called out his intention to set 

off charges to the two additional miners who were 

located approximately 180 feet out-by the No. 5 

face. The blast of the No. 6 working face resulted 

in a simultaneous detonation of granulated powder 

explosives and electric detonators which had been 

stored upon the mobile coal drill which the deceased 

had placed in the last cross-cut between the Nos. 5 

and 6 entries. The charges in the No. 5 face did 

not detonate. Subsequent to the blast, the victim 

was discovered, his body having been thrown by the 

1424 
force of the blast against a rib. Due to destruction at the site resulting from the blast, the 

direct cause of· detonation of the explosi~es could 

not be precisely determined; however, inspection of 

the scene resulted in the conclusion that the 

proximate cause of the fatality was the detonation 

of materials on the aforesaid mobile drill. Moreover, examination of the No. 6 working place did 

not reveal evidence of a blown out shot or other 

abnormality. Attached as Exhibit "A" is a "sketch 

of fatal explosives accident" which depicts the 

scene of the aforesaid accident. 

As a result of the investigation of the aforesaid accident, the Secretary alleged violations of 

safety and health standards at respondent's No. 1 

Mine as follows: 

a. Citation No. 2193274, issued July 12, 

1985, alleged a violation of the mandatorl safety 

and health standard at 30 C.F.R. 75.1303. I ... Said condition ••• was observed during the investigation of the aforesaid fatal accident, the location 

of same being depicted in Exhibit "A". Because of 

the hazard associated with an open shot, the use of 

such a blasting cap as a leg wire is violative of 30 

C.F.R. 75.1303. 

The inspector deemed respondent's negligence to be low because of the unlikelihood that 

respondent knew or should have known that the 

deceased miner was using the blasting cap as a leg 

wire. Moreover, it appeared respondent provided 

suitable, permissible wire for use in blasting the 

face of the coal and that it was respondent's 

policy that said permissible wire be used. The 

condition created a danger that employees could be 

injured by an exploding blasting cap, which event 

was deemed reasonably likely to occur under the 

circumstances. Moreover, an injury resulting from 

such an event could reasonably be expected to 

result in lost work days or restricted duty for 

injured miners. The cited condition affected one 

miner at the time. The circumstances occurred on 

!I 30 C.F.R. 75.1303 provides, in part, that 

" ••• in all underground areas of a coal mine only 

permissible explosives, electric detonators of 

proper strength, and permissible blasting devices 

shall be used and all explosives and blasting 

devices shall be used in a permissible manner • • 

1425 

" 
respondent's maintenance shift and the only two 

other miners in the mine were approximately 180 

feet away. 

Respondent exhibited its good faith by 

immediately abating the violation alleged in the 

citation. 

The. inspector deemed the violation.to be 

of such a nature as to contribute significantly and 

substantially to a hazard, which citation was 

assessed at $30 after giving respondent credit for 

its good faith. Respondent has agreed to pay this 

amount. 

b. Citation No. 2193275 was issued July 12, 

1985, alleging a violation of the mandatory safety 

and health standard at 30 C.F.R. 75.1307.2/ ••• 

The cited standard, which requires the proper 

storage of explosives and detonators, was deemed to 

be violated by respondent, which violation resulted 

in a fatal injury to a miner. The inspection 

revealed that explosives being used by the deceased 

miner at the time of the aforesaid accident were 

stored upon the mobile coal drill depicted in 

Exhibit "A", not a separate, closed container. The 

coal drill was located less than 50 feet from No. 6 

working place at the time the blast occurred. 

Although blast destruction prevented a determination 

of the direct cause of the detonation of the explosives on the drill, it occurred simultaneously with 

the detonation of No. 6 working face by the deceased. 

The inspector deemed respondent's negligence to be 

high in that the inspector determined that the violative method of storing the explosives had been observed previously. Said negligence is subject to 

some mitigation, however, in that the violative condition occurred on the maintenance shift when fewer 

miners were working; the deceased miner had alone 

prepared the Nos. 5 and 6 faces for blasting and the . respondent had provided appropriate and proper storage 

'facilities near the working sections which the 

deceased could have used. 

The condition cited resulted in the occurrence 

of the event against which the cited standard was 

2; 30 C.F.R. 75.1307 provides, in part, that 

[e]xplosives and detonators stored in the working 

places shall be kept in separate closed containers 

which shall be located out of the line of blast and 

not less than 50 feet from the working face ••• 11 

1426 
directed and the resulting injury was fatal. Only 

the deceased miner was affected by the event although two additional miners were working approximately 800 feet out-by the working face. Respondent exhibited its good faith by immediately abating 

the violation alleged in the citation by requiring 

the storage of explosives in the section storage 

magazines. 

The inspector deemed the violation to be 

of such a nature as to contribute significantly and 

substantially to a hazard which citation was 

specially assessed at $6,500. The Secretary 

believes that because of the aforesaid mitigating 

factors related to respondent's negligence, a small 

reduction in the assessment is appropriate and, 

therefore, it is proposed a penalty of $5,750 be 

assessed, which respondent agarees to pay. 

I have considered the representations and documentation 

submitted in this case, and, while I do not necessarily agree 

with the rationale advanced, I conclude that the proffered 

settlement is appropriate under the criteria set forth in 

Section llOCi) of the Act. 

WHEREFORE, the motion for approval of settlement is 

GRANTED, and it is ORDERED that Respondent pay a penalty of 

$5,780 within 30 days of this order. 

Distribution: 

Robert C. Haynes, Esq., Office of the Solici or, U.S. Department of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

Paul D. Kelly, Jr., Esq., Kelly & Kelly, P.C., P. O. Box 878, 

Jasper, TN 37347 (Certified Mail) 

rbg 

1427 
..... 

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,,,, )( 

// 

Ot>tol\.tted 8lutin9 Cap ------·---· 

___ i>< 

Clip of Self Rescuer (W-6S) 

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Sh0<>tln9 Battery 

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Detonated Bla\tln9 Cap 

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2 Pieces of 

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ond 10". Piece of 

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Clip of St'lf 

Rtscuer ( W-6S) 

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8rokl'n. Tamping S

Detonated Blasti

SKETCH OF FATAL tX

Mine No. 1 (I. 

G & G Coal Comp

Daus~ Sequatchie 

,July C
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. 

BLUE CIRCLE INCORPORATED, 

Respondent 

SEP 191986 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. SE 86-52-M 

A.C. No. 01-00629-05509 

Roberta Cement Plant 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On September 5 and September 11, 1986 the parties submitted 

a motion for approval of a settlement reached by the parties 

in this case. The violations were originally assessed at 

$4000 and the parties propose to settle for $1600. 

Two violations are involved in this proceeding, both 

cited following.an investigation of a fatal accident on 

October 8, 1985 when an employee was struck by a piece of 

liner plate which fell approximately 40 feet from a work 

platform. The operator was cited for failing to provide toe 

boards on the work platform (30 C.F.R. § 56.11027), and 

failing to keep the platform clean and orderly (30 C.F.R. 

§ 56.20003(a)). The motion states that the Secretary cannot 

establish that the toeboards would have prevented the accident. 

The work being performed was performed on an infrequent basis, 

and toeboards had been installed in other areas of the plant. 

The motion states that the failure to install them on the 

work platform involved here was apparently an oversight. 

Respondent implements annual safety training for its employees, 

and the employees involved had received safety training. The 

accident resulted in part from employees not implementing 

Respondent's procedures and safety rules. "The ~idlations 

were promptly abated. 

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 •. 

1429 
Accordingly, the settlement is APPROVED and Respondent 

is ORDERED TO PAY the sum of $1600 within 30 days of the 

date of this order. 

Distribution: 

,~ ~ff wcivtd 

James A. Broderick 

Administrative Law Judge 

William Lawson, Esq., u.sQ Department of Labor, Office of t:he 

Solicitor, 2015 2nd Ave. N., Birmingham, AL 35203 (Certified 

Mail) 

Mark A. Lies, II, Esq., Seyfarth, Shaw, Fairweather & Geraldson, 

Suite 4200, 55 E. Monroe St., Chicago, IL 60603 (Certified 

Mail) 

slk 

1430 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR 

MiNE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MITCH COAL COMPANY, INC., 

Respondent 

SEP 231986 

. . 

CIVIL PENALTY PROCEEDING 

Docket Noo KENT 86-98 

A. C. No. 15-05209-03522 

No. E-4 Mine 

DECISION APPROVING SETTLEMENT 

This matter is before me on the parties' motion to approve a 

settlement reducing the amount of the penalties proposed by 50 

percent due to the depressed state of the market for coal and its 

consequent impact on the operator's ability to continue in 

business. 

Based on an independent evaluation and de novo review of the 

justification for the reduction, I find the same is in accord 

with the purposes and policy of the Act. 

Accordingly, it is ORDERED that the motion be, and hereby 

is, GRANTED. It is FURTHER ORDERED that the operator pay the 

amount of the penalty agreed upon, $500.00, in installments of 

$250.00 each due on or before Mo , October 20, 1986 and 

Thursday, November 20, 1986. F' a ly, it is ORDERED that, 

subject to payment, the caption d atter b ISMIS ED. 

Distribution: 

Mary Sue Ray, Esq., Office of .the Solicitor, u. S. Department of 

L~bor, 280 U. S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Mr. Grover Samons, President, Mitch Coal Company, Inc., P. O. 

Box 12, Minnie, KY 41651 (Certified Mail) 

dcp 

1431 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 231986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

DENNIS C. JONES, 

Complainant 

v. 

SOUTHERN OHIO COAL CO., 

Respondent 

. 

0 

: 

. 

. 

. . 

. . 

. . 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 85-299-D 

MSHA Case No. MORG CD 85-4 

Martinka No. 1 Mine 

DECISION 

Appearances: ·Howard Agran, Esq., Office of the Solicitor, U. So 

Department of Labor, Philadelphia, Pennsylvania, 

for the Petitioner1 

Before: 

Robert M. Steptoe, Jr., Esq., Steptoe and Johnson, 

Clarksburg, west Virginia, for the Respondent. 

Judge Kennedy 

This discrimination case was brought on behalf of an 

employed miner to redress a loss of overtime pay for an alleged 

act of retaliation in reporting a roof control violation. The 

Secretary claims the transfer of Dennis Jones from the mine's 

super section to an equivalent job on another section without a 

loss of pay, seniority, or benefits other than eligibility for 

optional overtime pay violated section 105(c)(l) of the Mine Act. 

The operator defended on the ground the challenged transfer was 

justified because Jones and his partner on the twin-headed roof 

bolter engaged in a work slowdown that resulted in serious disharmony and dissension among the workforce assigned to the 2 East 

A Section (the super section) during August and September 1984. 

Findings 

Dennis Jones was and is an unregenerate safety activist when 

it comes to roof control violations. And with good reason. He 

is a roof bolter--and a very good one--when he wants to be. But 

because he is so good at his speciality he resented being assigne 

to do scut work or what is known in the mines as "dead work. 11 

These are the physically demanding but demeaning housekeeping 

chores so essential to the safe and efficient operation of a 

working section. 

1432 
I 

The Protected Activity. 

For years Dennis Jones had been among the most "vocal" of 

the miners employed at the Martinka No. 1 Mine about safety 

hazards, and particularly violations of the roof-control plan. 

For approximately a year and a half prior to the incident that 

triggered this complaint Mr. Jones regularly complained to his 

foreman, the mine safety committee, various members of top 

management and MSHA about a violation of the roof-control plan 

that he considered especially egregious. The provision his 

complaint centered on read as follows: 

Where resin bolts are used as primary roof support, the 

place shall not be left on temporary supports for more than 

8 hours. Bolting the roof with resin as soon as practicable 

is critical for successful results. The only deviation from 

this procedure will be where there is a mechanical/electrical 

failure on the roof bolting machine or when a work stoppage 

occurs. (G-1, p.17, para. 6). 

There was no dispute about the fact that working faces (places) 

were being left totally unsupported for periods of up to 

48 hours, especially on the weekends, i.e., from midnight Friday 

night to midnight Sunday night. Since Mr. Jones worked the 

midnight to 8:00 a.m. shift, the first shift, it often fell his 

lot to be directed to bolt cuts at the working faces that had 

hung unsupported over Saturday and Sunday. He complained about 

this on his own behalf and on behalf of his fellow workers. 

Initially his complaints were supported by the mine safety 

committee. MSHA, however, refused to investiagate or cite the 

condition, management refused to take any corrective action and 

the mine safety committee, while sympathetic, did not consider 

the practice sufficiently hazardous to justify a work stoppage 

for a hazardous or imminently dangerous practice. Nor did 

Mr. Jones or his coworkers ever invoke the individual safety 

rights provision of the collective bargain agreement to withdraw 

their services individually or collectively because of an 

abnormally hazardous practice or condition. 

MSHA and management took the position that tests of the 

overlying roof strata showed the deflection in the roof over a 

48-hour period was insufficient to warrant enforcement of an 

8 hour limitation or 30 C.F.R. 75.200. They felt that the roof 

deflection tests when coupled with the provision for the use of 

Automated Temporary Roof Supports provided adequate protection 

for miners such as Jones who were called upon to bolt such faces 

or entries. In other words, MSHA and management agreed that, in 

effect, the provision of the roof-control plan cited by Mr. Jones 

had been rendered obsolete and unenforceable by a technological 

1433 
innovation, namely the introduction and use of ATRS systems on 

the operator's roof bolting machines. 

Mr. Jones as well as the mine safety committee knew that, 

after introduction of the ATRS, neither management, MSHA nor the 

West Virginia Department of Mines considered the 48 hour practice 

unsafe. 

Automated Temporary Roof Support CATRS) Systems on roof 

bolters eliminate the need for temporary support posts and protect roof bolters from unintentional roof falls through hydraulically activated and supported steel canopies. 50 F.R. 41784, 

41792-41794 (1985). Thus, the reference in the plan to "temporary supports" was rendered obsolete by the new technology. 

Indeed, the steel canopies provided greater protection for 

Mr. Jones and his partner than that provided under the temporary 

support procedure. Even so, Mr. Jones felt that the requirement 

that resin bolts be installed "as soon as practicable" and that 

only a "work stoppage" or machine failure justified a "deviation" 

from the 8 hour limitation mandated enforcement of that limitation. He believed the deflection or sag in the roof that would 

occur over a 48-hour period would, in the long run, seriously 

detract from the effectiveness of the resin bolt bond in the overlying roof structure. As noted, because test hole observations 

indicated the contrary, management, the state agency and MSHA did 

not agree that the amount of separation and deflection that could 

be expected to occur created any hazard to the long run stability 

of the resin bolt bond, once installed. 

For these reasons, management paid little attention to 

Mr. Jones'· complaints and, it seems clear, hardly looked upon 

them as a basis for disciplinary action. 

The solicitor's suggestion that Jones' threat to carry his 

complaint to the resin bolt manufacturer created a fear that triggered his transfer is illogical, speculative and without persuasive support in the record. There is no evidence that the bolt 

manufacturer would have agreed with Jones or that MSHA or the 

west Virginia Department of Mines would have changed their positions in view of the testing that had been done and the request 

for modification of the 8 hour limitation that had been under 

discussion since January. This change was formally submitted to 

MSHA on July 24, 1984, approximately 2 weeks before Inspector 

Bowers declined to take action on Mr. Jones' complaint of 

August 8, 1984. 

II 

The qu~stion then is whether in view of the fact that the 

two mine safety enforcement agencies and the operator had concluded that compliance with the 8 hour limitation was unnecessary 

Mr. Jones had a good faith reasonable belief on August 8, 

September 13, and October. 1, 1984 (the dates of the alleged 

1434 
actionable complaints) that the practice was hazardous and therefore protected. I think not. 

I find that while Mr. Jones had an honest belief that a 

hazard existed his belief was not reasonable because the evidence, even when evaluated from his standpoint, shows that the 

practice--later sanctioned by a change in the approved roofcontrol plan--was not unsafe. Indeed, the record shows that on 

August 24, 1984, some 6 weeks prior to the complaint of 

October 1, 1984, the union safety committee had agreed to an 

extention of the 8 hour limitation to 24 hours. And shortly 

thereafter, on February 5, 1985, the provision in the roofcontrol plan relied on by Jones was changed to r'ead as follows: 

Where resin bolts are used as primary roof support, the 

place shall be bolted on the next production shift, or 

within 48 hours. The only deviation from this procedure 

will be where there is a mechanical and/or electrical 

failure on the roof bolting machine or when a work stoppage 

occurs. CGX-10). 

While I have given Mr. Jones the benefit of the doubt in 

finding he had a good faith belief in a hazard, I also ·find the 

circumstantial evidence shows that Mr. Jones did not take his · complaint to grievance; did not view the hazard as serious enough 

to justify an individual refusal to work; and that neither his 

coworkers, nor the safety committee considered it sufficiently 

dangerous to justify a legally sanctioned work stoppage. Because 

Mr. Jones knew or should have known that the ATRS System protected 

him from any immediate hazard and that the weight of the expert 

judgment was against him on the question of a long run hazard, I 

conclude Mr. Jones' belief that the practice in question was 

unsafe was not reasonable.. His complaints were not therefore a 

protected activity. Having failed to make a prima facie case of 

discrimination for a protected activity, it follows that the 

complaint must be dismissed. 

III 

The Unprotected Activity 

At the time of the hearing complai narit. Jones .had been 

employed by socco for approximately 6 years. He had been classified as a roof bolter for the last 3 years. Sometime prior to 

July, 1984, Martinka Mine management decided to operate an experimental, continuous mining section designed to increase production 

and reduce labor costs. That section was officially denominated 

2 East A but was referred to colloquially as the "super section." 

Operations commenced on July 23, 1984. The section consisted of 

eight 16 foot entries or headings mined by two Joy Continuous 

miners. Roof control was provided by two Fletcher dual-head ATRS 

roof bolters bolting on 4 foot centers. One continuous miner and 

roof bolter would normally work on the left side of the section, 

1435 
headings one through four, and the other miner and roof bolter 

would operate on the right side of the section, headings five 

through eight. The continuous miners were not operated simultaneously. Instead, after one CM drove its four headings, the machine 

would be parked for servicing and the operator and helper would 

immediately go to the other continuous miner to cut coal in the 

other four headings. Management's concept was to operate two continuous miners with 10 classified or contract CUMWA) miners 

instead of the normal complement of 14. Thus, on the super section, mangement eliminated the need for one continuous miner operator, one continuous miner helper and two shuttle car operators. 

The one-third reduction in the workforce when coupled with the 

demand for a significant increase in production (the "do more with 

less" concept) created a working environment rife with a potential 

for labor discontent. 

Unlike the two continuous mining machines, which were operated by the same miner, the roof bolting machines each had a separate crew of two miners. One machine and crew (Tom Cunningham 

and Frank Renick> was assigned to the left side of the section, 

headings one through four, and the other crew (Dennis Jones and 

Ed Hill) to the right side of the section, headings five through 

eight. When bolting operations were completed bolters were 

expected to work out of their classification and do needed "dead 

work." This somewhat derisive term was used to described the 

housekeeping tasks so necessary to the safe and efficient operation of a section including the moving and servicing of the continuous mining machines, scooping, rock dusting, obtaining and 

delivering supplies to the face area, installing belt and trolley 

hangers, moving. the ventilation and other chores routine to the 

maintenance and operation of a conventional continuous mining 

section. 

The midnight shift foreman, James Kincell, working with the 

general mine foreman, John Metz, selected Jones and Hill as the 

pair of roof bolters to work the right side of the section. They 

were specifically told that they were part of an experimental 

operation, were expected to be self-motivated, and were to act 

with initiative at all times to make the operation a success. 

They knew that if they did not produce they could be replaced at 

any time. It was emphasized that the roof bolters would be 

expected to do work outside their classification as face men and 

to perform dead work on their own initiative. 

The other bosses on the midnight shift were James Layman who 

was the section foreman generally responsible for production and 

James Huffman who was the section foreman generally responsible 

for construction. Both had responsibility, however, for the 

safe, efficient and productive operation of the super section as 

a whole. Kincell, Huffman, and Layman were well acquainted with 

Jones and Hill, knew them to be highly competent at their craft 

and also knew that they along with other members of the crew were 

1436 
not hesitant about making safety complaints, especially on conditions affecting the roof. Jones; however, was the more insistent 

and "vocal" of .the two. Jones kept up a stream of plausible 

safety complaints while Hill contributed a somewhat intimidating 

personal and physical presence that, at least in the case of 

Layman, allowed the pair to escape any direct confrontation over 

their work performance. 

Jones admitted that while he had for years been making complaints similar if not identical to the ones claimed actionable 

in this case no adverse action had ever been taken against him 

either before or after this incident. And certainly this incident 

did not have a chilling effect on Jones' complaints which continued even after his transfer. 

During the first 3 or 4 weeks all went well on the super 

section although production was not as high as targeted. Around 

the middle of August, however, things took a turn for the worse 

when Layman and Huffman began to receive complaints of friction 

between the left side bolters (Cunningham and Renick) and the 

right side bolters (Jones and Hill). The problem arose over the 

failure of Jones and Hill to complete roof bolting assignments on 

the right side of the section as quickly as everyone knew they 

could. This meant that an unfair portion of the dead work on 

both the left and right side of the section fell on Cunningham 

and Renick. Based on their own observations Layman and Huffman 

went to Kincell in late August or early September and accused 

Jones and Hill of "slowing down" on the roof bolting process in 

order to avoid doing the "dead work" after bolting was complete. 

Jones and Hill contested this. They were supported by the 

continuous miner operator Morris and the two face men. Morris 

testified he was never delayed by Jones and Hill. This testimony ff however, was not germane to management 1 s complaint of a 

claimed stretchout of bolting assignments to avoid dead work. 

Neither of the face men, of course, were in a position to observe 

the claimed slowdown on the bolting assignments or to evaluate 

the two right side bolters' performance as well as their supervisors and the two left side bolters. 

Five highly credible eyeball witnesses CKincell, Huffman, 

Layman, Cunningham, and Renick) testified that from the middle of 

August to October 1, 1984, Jones and ·his partner Hill regularly, 

repeatedly and continuously, i.e., on 4 out of 5 days engaged in 

a planned common course of action to avoid the performance of 

dead work. This caused friction, conflict, disharmony, and dissension among the members of the super section crew. 

For example, Cunningham and Renick early on complained that 

they would quit the section if Jones and Hill were not replaced 

or the situation corrected. Kincell tried at first to correct 

the situation through indirect methods such as letting Jones and 

Hill know he was timing their performance. Huffman the more 

1437 
assertive of the three supervisors on several occasions let Jones 

and Hill know they were in jeopardy. Layman was inexperienced as 

a· boss and somewhat fearful of provoking a fight or a feud among 

the crew members. Jones, apparently because of his safety complaints, and Hill, because of his truculence, felt secure. After 

all Kincell had personally selected them over Metz's misgivings. 

He naturally was reluctant to admit he had seriously misjudged 

them. 

Jones and Hill as wiley, mine-wise contract miners also knew 

that management was trying to achieve a production breakthrough 

and thus could be expected to take a little dissension so long as 

the bolting assignments were done and the dead work did not fall 

intolerably far behind. Where they miscalculated was with their 

union brothers, Cunningham and Renick. They just would not take 

it and went so far as to make a scene and complaint over Jones 

and Hill's blatant work slowdown in front of the general mine 

supervisor, Mr. Metz. .Things also turned against them when 

Kincell on more than one occasion observed them in what appeared 

to him to be a loafing or sleeping posture and after he made time 

studies that showed they could work twice as fast when they were· 

being watched as they did when unsupervised. Cunningham and 

Renick kept up their stream of complaints.and openly "ribbed" 

Jones and Hill for not helping out with the dead work. 

Huffman testified he had confrontations with Jones and Hill 

on several occasions over their delay in installing trolley 

hangers in the track entry on Sundays. Another example of their 

obstructionist attitude he cited was their consistent refusal to 

tram the continuous miner from the five to the seven entry for 

servicing so that they could bolt the five entry. They repeatedly 

tried to outwait him in the expectation that he would send the 

mechanics to move the miner while they just stood or sat around 

and waited. Jones and Hill knew or should have known they were 

being watched and of the scene Cunningham and Renick created in 

front of Metz and Kincell. They also knew or should have known 

of the animosity they had engendered on the part of their 

brothers. 

Layman was especially bitter over the way they treated him. 

They knew he was new at the supervisor's job. Yet they seemed to 

want to take advantage of him. They knew he and Huffman were 

reprimanded for the complaints Cunningham and Renick made to Metz. 

They also knew or should have known that when they :~ok an hour 

to an hour and a half to do a job that Layman knew shculd have 

been done in 35 to 45 minutes they were treading on thin ice. 

Layman testified further that it was embarrassing to him to know 

that Jones and Hill would spend a whole shift doing three or four 

places that with their skill and speed should have been done in 

less then half that time. Vigorous cross-examination did not 

shake the sincerity of his conviction that Jones and Hill were 

"dogging" it. Time after time he unequivocally asserted that 

based on his personal observations of the amount of time Jones 

1438 
and Hill were spending on bolting he was convinced they were 

stretching out the bolting assignments to avoid doing dead work. 

When counsel demanded he be more specific, Layman testified that 

his observation was that the slowdown occurred on 4 out of 5 days 

and he watched them every day. 

Layman and Huffman as well as Cunningham and Renick complained loud and long to Kincell who finally, on the basis of his 

own observations, decided during the last week in September to 

transfer Jones off the section on October 1 and to put Layman on 

the day shift for further training as a supervisor. The excuse 

for not transferring Hill--namely that he was needed to fire 

boss--I find unpersuasive. Nevertheless, whatever disparate 

treatment was involved did not stem from any protected activity. 

By this time management was unimpressed with Jones' complaint 

over the 8 hour limitation. It was also not interested in disciplining or punishing him. It merely wanted to improve morale on 

the super section and quiet the complaints from Cunningham and 

Renick. This was accomplished by transferring Jones to a section 

where he was not expected to do dead work but also would not 

enjoy the option of the overtime he was regularly paid on the 

super section. 

The actual transfer of Jones did not occur until Tuesday, 

October 2, 1984, due to a mistake or misunderstanding on the part 

of the assistant shift foreman. I find no persuasive basis for 

reading into this one day delay any sinister motive on the part 

of management. As I have found, Jones' complaint of Monday, 

October 1 was of a piece with those he voiced on most Mondays, 

namely the failure to bolt places on Saturday that left the roof 

unsupported over the weekend. 

v 

Based on a preponderance of the credible, fact specific evidence and the reasonable inferences to be drawn therefrom, I am 

constrained to find that the true motive or cause for Jones' 

transfer from the super section on October 2, 1984, was his participation with Hill in a stretchout or slowdown of classified 

work to avoid dead work during August and September 1984. There 

was therefore, no nexus between the claimed protected activity 

and the reason for Jones' transfer. The operator having carried 

its burden of showing Jones was transferred for engaging in an 

unprotected activity and that he would have been transferred for 

engaging in that activity alone, it follows that the complaint 

must be dismissed. 

VI 

Conclusion and Order 

The premises considered, I conclude that as a matter of fact 

and law the transfer of Dennis Jones off the super section at 

1439 
Martinka No. 1 Mine on October 2, 1984, did not constitute a violation of section 105(c)(l) of the Mine Act because the transfer 

was not based in whole or in part on any protected activity,· was 

motivated solely by the miner's unprotected activity and would 

have been effected in any event fo is unprotected activity 

alone. Accordingly, it is ORDERE hat the complaint be, and 

hereby is, DISMISSED. 

Distribution: 

Howard Agran, Esq., Office of the Solicitor, U. s. Department of 

Labor, 14480-Gateway Building, 3535 Market Street, Philadelphia, 

PA 19104 (Certified Mail) 

Robert M. Steptoe, Jr., Esq., Steptoe and Johnson, Sixth Floor, 

Union National Center East, P. O. Box 2190, Clarksburg, WV 

26303-2190 <Certified Mail) 

dcp 

1440 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 SEP 251986 

DONALD E. RUNYON, 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-58-D 

v. 

PIKE CD 85-17 

BIG HILL COAL COMPANY, 

Respondent No. 4 Mine 

Appearances: 

Before: 

DECISION 

Joe Friend, Esq., Pikeville, Kentucky, 

for Complainant; 

Charles E. Lowe, Esq., Pikeville, Kentucky, 

for Respondent. 

Judge Maurer 

STATEMENT OF THE CASE 

This proceeding concerns a discrimination complaint 

filed by the complainant, Donald E. Runyon, against the 

respondent, Big Hill Coal Company [hereinafter the "Company"], pursuant to section 105(c) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S. C. § 815 (c) [herei.nafter 

referred to as the "Act"]. Mr. Runyon initially filed his 

complaint with the Department of Labor•s Mine Safety and 

Health Administration (MSHA) on September 20, 1985, alleging 

that he was discharged from the Company's No. 4 Mine on 

August 18, 1985, because he refused to work underground in 

the mine. He went on to state that he was hired as an 

"outside man" and thus when he was abruptly informed one 

morning that he was to work underground, he refused because 

he felt this mine was unsafe. At that point, he allegedly 

was told he. was no longer needed. Following an investigation of his complaint, MSHA determined that a violation of 

section 105(c) had not occurred, and thereafter Mr. Runyon 

filed his complaint with the Commission, pro se. By his 

complaint, he sought reinstatement, back pay and recovery of 

"all losses and expenditures" incurred as a result of his 

discharge. 

Pursuant to notice, this case was heard in Paintsville, Kentucky, on July 8, 1986. Donald E. Runyon 

testified on behalf of himself. Dean Francis, Curtis 

Francis, and Joe Tackett testified on behalf of the 

respondent. 

1441 
I have carefully considered the entire record and the 

contentions of the parties, and make the following decision. 

DISCUSSION AND FINDINGS 

The complainant testified that he began his employment 

with the Company in February of 1984, and that he was a 

welder who worked primarily on the surface but who had gone 

underground when the job required it some ten times or so 

during the year and a half he worked there. His employment 

with the Company terminated on or about August 19, 1985. 

He described the sequence of events which immediately 

led to the termination of his employment. That conversation with Mr. Dean Francis, Company supervisor, is reported 

at Tr. 63-64: 

A. He said, "Get your hard hat and a light and 

go underground." 

Q. And what did you tell him, if anything? 

A. I told him I'd rather not go underground. 

Q. Did you tell him why? 

A. No, sir. 

Q. And then what did he say, if anything? 

A. He asked me was I refusing to do my job. I 

said, "No," I said, "I'd rather not gd underground." He said, "Well, then, you're refusing 

to do your job," and I said, "No, I'm not refusing to do my job." He said, "Well, then, we 

don't need you." I said, "Well, does that mean 

I'm fired or what?" He said, "You just fired 

yourself." 

Q. Did he at any time tell you that you were fired? 

A. No. That was what he said. He said I fired 

myself. 

Q. And what did you do then, if anything? 

A. I just got my stuff together and left. 

Q. Where did you go to? 

A. I went home. 

1442 
Complainant contends he refused to go underground on 

August 19, 1985, because: (1) the ventilation fan was 

vibrating and he was of the opinion that if it shut down the 

men, including himself, would not be withdrawn from the mine; 

and (2) there had been, in his opinion, two methane ignitions 

at this mine during the time he worked there, one in February 

or early March of 1985 and another on May 9, 1985. 

Mr. Dean Francis testified for the respondent. His 

version of the August 19 conversation with the complainant 

is essentially corroborative (Tr. 88-89): 

A. Mr. Runyon come in and I told him -- I said to 

get him a light and stuff; I had a job I wanted him 

to do. So, he said, "I'm not going underground." 

And I said, 11Why not?" He said, .

11 I 1 m just not going 

underground." I said, "Well, are you refusing to 

do your job?" But before he said he wasn't going 

underground, he said he didn't have a hard hat. I 

said, "I have a hard hat in my truck, 11 which I do. 

I carry two all the time. Then, after that --

Q. He told you he hadn't brought his hard hat with 

him? 

A. Right. 

Q. And you told him that you had one in your truck? 

A. Yes, sir. 

Qo To go get it? 

A. Right. 

Q. Did he go get it? 

A. No. He started to walk off, then he turned back 

around and he said, "I'm not going inside. 

Q. And then what did he do, if anything? 

A. Well, then, he turned around. He said -- I asked 

him -- I said, "Gene, are you refusing to do your 

job?". And he said, "I'm not going underground." 

Then, he turned around and said, "Are you. firing me?" 

I said, "No, I'm not firing you. 1

·

1 I said, "You're 

firing yourself. You're refusing to do the job you 

were hired for." 

1443 
Mr. Francis did disagree, however, with the complainant's assertion that the May 1985 incident referred to above 

was a methane ignition. He maintains that it was a "blown 

out shot". He also generally disagreed that the mine was 

unsafe. He cited the fact that one miner breaking his leg 

was the only accident that occurred in the mine during 

Mr. Runyonws tenure there. 

Mr. Curtis Francis, also a supervisor at the Company's 

mine, testified that the complainant never told him he was 

afraid of anything at the mine until two weeks prior to the 

hearing in this case. On the 26th of June 1986, he stated 

the complainant told him he wanted to settle the case and 

had said, "I'm just going to tell you the truth •••• I'm 

scared to go in the mines anymore" (Tr. 169). 

Under the Act, a complaining miner establishes a prima 

facie oase of prohibited discrimination by proving 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); Secretary on behalf of Robinette 

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

The operator may rebut the prima f acie case by showing 

either that no protected activity occurred or that the adverse action was not motivated in any part by protected 

activity. Robinette, 3 FMSHRC at 818 n.20. If an operator cannot rebut the prima facie case in this manner, it 

nevertheless may defend affirmatively by proving that (1) it 

was also motivated by the miner's unprotected activities, 

and (2) it would have taken the adverse action in any event 

for .the unprotected activities alone. See also Donovan v. 

Stafford Construction Co., 732 F.2d 954-;--958-59 {D.C. Cir. 

1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 

1983} {specifically approving the Commission's PasulaRobinette test) o The Supreme Court has approved the National Labor Relations Board's virtually identical analysis 

for discrimination cases arising under the National Labor 

Relations Act. NLRB v. Transportation Management Corp., 

462 U.S. 393, 397-403 (1983}. 

Further, it is well settled that the refusal by a miner 

to perform work is protected under section 105(c) (1) of the 

Act if it results from a good faith belief that the work 

involves safety hazards, and if the belief is a reasonable 

one. Secretary of Labor/Pasula v. Consolidation Coal Co., 

2 FMSHRC 2786, 2 BNA MSHC 1001 (1980), rev'd on other 

grounds sub nom. Consolidation Coal Co. v. Marshall, 663 

F.2d 1211 (3rd. Cir. 1981); Secretary of Labor/Robinette v. 

1444 
United Castle Coal Co., 3 FMSHRC 803, 2 BNA MSHC 1213 (1981); 

Bradley v. Belva Coal co., 4 FMSHRC 982 (1982). Secretary 

of Labor v. Metric Constructors, Inc., 6 FMSHRC 226 (Feb. 

1984), aff'd sub nom. Brock v. Metric Constructors, Inc., 

3 MSHC 1865 (11th cir. 1985). 

Therefore, the initial issue presented for decision is 

whether Runyon had valid safety concerns. For the reasons 

that follow, I conclude that he did not. 

The complainant's concern about the ventilation fan 

vibrating on the morning of August 19, 1985, was unfounded 

for the simple reason that it had been fixed on August 16, 

-1985, and was no longer vibrating. However, it is true that 

Runyon might reasonably have believed that it was still 

vibrating. This was a new fan that had been installed some 

three weeks earlier and although it was operating, sucking 

air out of the mine, it was vibrating because of a cracked 

weld joint. Runyon's concern was that "anything vibrating 

like that can go.down ••. and it could go down any time" 

(Tr. 48). He further speculated that if the fan shut down, 

and "if I was in there ••• ! wouldn't becalled out .•• " (Tr. 

48}. This series of speculations does not rise to the 

status of a good faith, reasonable belief that a safety 

hazard existed. I further note that complainant introduced 

no evidence as to the likelihood that such an equipment 

failure would occur in the first place, thereby giving rise 

to the feared sequence of events. 

As to the two previous instances of methane ignitions 

(February and May of 1985), complainant has failed to connect them up with his refusal to go underground in August 

of 1985. The testimony was that the mine is adequately 

pre-shifted and fire-bossed every day and the complainant 

does not contest that. I therefore find that this contention likewise does not form a good faith, reasonable belief that a safety hazard existed_ on the morning of 

August 19, 1985. 

In summary, there is no evidence in this record that 

the underground work requested of Mr. Runyon would have 

exposed him to any safety hazards. 

I conclude from the totality of the evidence adduced 

at the hearing in this case that Mr. Runyon had a generalized fear of going underground into this or any other coal 

mine. His actual grievance in this case is that he believed that he had an outside job on the surf ace and was 

reluctant to work underground because of his fear. He 

wanted to perform only the work on the surface for which 

he thought h~ had been hired. Unfortunately, the Company 

required his services underground from time to time, including the morning in question. 

1445 
CONCLUSION AND ORDER 

In view of the foregoing findings and conclusions, and 

after careful consideration of all the evidence in this 

record, I cannot conclude that Mr. Runyon's refusal to perform his work assignment on August 19, 1985, was based on a 

reasonable good faith belief on his part that that work 

would expose him to any underground safety hazards. A 

miner's belief in a hazard must be reasonable. Unreasonable, irrational, or completely unfounded work refusals 

do not warrant statutory protection. Robinette, 3 FMSHRC 

at 811. Accordingly, the complaint IS DISMISSED, and the 

complainant's claims for relief ARE DENIED. 

aurer 

rative Law Judge 

Distribution: 

Joe J. Friend, Esq., P. o. Box 512, Pikeville, KY 41501 

{Certified Mail} 

Charles E. Lowe, Esq., P. o. Box 69, Pikeville, KY 41501 

(Certified Mail) 

yh 1446 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 251986 

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 

CONTEST PROCEEDING 

Docket No. WEVA 86-249-R 

Order No. 2706369; 3/24/86 

Loveridge No. 22 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 86-359 

A.C. No. 46-01433-03713 

Loveridge No. 22 Mine 

DECISIONS 

Appearances: 

Before: 

W. Henry Lawrence, Esq., Steptoe and Johnson, 

Clarksburg, West Virginia, for the Contestant; 

William T. Salzer, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Respondent. 

Judge Koutras 

Statement of the Proceeding 

These proceedings concern a Notice of Contest filed by the 

contestant against the respondent pursuant to section l05(d) of 

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

§ 815(d), challenging the legality of a section 104(d) (2) order 

issued to the contestant at its Loveridge No. 22 Mine on 

March 24, 1986. The civil penalty case concerns a proposal 

filed by MSHA for a civil penalty assessment in the amount of 

$600 for the alleged violation in question. 

1447 
The contest was heard in Morgantown, West Virginia, on 

July 29, '1986, and the parties presented testimony and evidence 

regarding the alleged violation. MSHA presented testimony from 

its inspectors, and Consolidation Coal relied on the testimony 

of the mine safety supervisor and preparation plant superintendent. The civil penalty case was assigned to me after the 

hearing and the closing of the record. 

By motion filed with me on September 22, 1986, pursuant to 

Commission Rule 30, 29 C.F.R. § 2700.30, the parties seek 

approval of a proposed settlement of the civil penalty case. 

The proposed settlement reflects that MSHA has modified the 

contested order to a section 104(a) citation, with a corresponding reduction of the assessed degree of negligence from "high" 

to· 11moderate, 11 and an amended proposed civil penalty of $300 

which Consolidation Coal agrees to pay. 

Discussion 

Consolidation Coal is charged with an alleged violation of 

mandatory safety standard 30 C.F.R. § 77.1104, and the condition 

or practice is described as follows: "Loose coal and coal dust 

had accumulated throughout the slope belt headhouse on the 

structures electrical motors and boxes, black in color, and 

loose coal has also been allowed to accumulate to where the 

trail roller and tripper belt are running in loose coal creating 

fire hazard." 

In support of the proposed settlement of the civil penalty 

case, the parties state that they have discussed the si.x 

statutory criteria stated in section llO(i) of the Act, and I 

have reviewed the information supplied by MSHA as part of its 

pleadings and proposed civil penalty assessment with respect to 

these issues. In further support of the proposed settlement, 

Consolidation Coal asserts that it was unable to attend to the 

cited conditions due to the fact that under a prior order issued 

on February 8, 1986, access to the belt tail house was barricaded. This assertion is supported by the testimony at the 

hearing in defense of the alleged violation. MSHA acknowledges 

that certain access points to the slope belt headhouse were 

"chained off 11 as a result of repairs which had to be made to the 

tripper belt structure leading out of the slope belt headhouse. 

In view of these mitigating circumstances, MSHA modified the 

section 104(d) (2) order to a section 104(a) citation, anQ also 

modified the degree of negligence. 

1448 
Conclusion 

After careful review and consideration of the testimony 

and evidence adduced in these proceedings, including the 

submissions in support of the motion to approve the proposed 

settlement of the civil penalty case, I conclude and find that 

the proposed settlement disposition is reasonable and in the 

public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30, 

the motion IS GRANTED, and the settlement IS APPROVED. 

ORDER 

Consolidation Coal Company IS ORDERED to pay a civil 

penalty assessment in the amount of $300 for the violation in 

question, and payment is to be made to MSHA within thirty (30) 

days of the date of these decisions. Upon receipt of payment 

by MSHA, these proceedings are dismissed. 

~ell: Administrative Li~J;C; Law Judge 

Distribution: 

Michael R. Peelish, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241 {Certified Mail) 

w. Henry Lawrence, Esq., Steptoe & Johnson, P.O. Box 2190, 

Clarksburg, WV 26301 {Certified Mail} 

William T. Salzer, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail} 

/fb 

1449 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 251986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING . MINE SAFETY AND HEALTH . ADMINISTRATION (MSHA), 

Petitioner 

. . 

. . Docket No. YORK 86~1-M 

A.C. No. 30-00006-05512 

v. . . Blue Circle Atlantic, Inc. 

ATLANTIC CEMENT CO., INC., 

Respondent . . 

DECISION APPROVING SETTLEMENT 

Appearances: James A. Magenheimer, Esq., Office of the 

Solicitor, U.S. Department of Labor, New York, 

New York, for Petitioner~ 

Gary L. vanniere, Director of Personnel, P.O. 

Box 3, Ravena, New York, for Respondent 

Before: Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety 

and Health Act of 1977 (the Act). The parties filed a joint 

motion to approve a settlement agreement and to dismiss the 

case. A reduction in penalty from $5,311 to $3,311 was 

proposed. I have considered the testimony and documentation 

submitted in this case at hearings held August 27, 1986, and 

I conclude that the proffered settlement is appropriate under 

the criteria set forth in Section llO(i) of the Act. 

WHEREFORE, the motion for approval 

GRANTED, and it is ORDERED that Responden $3,311 within 30 days of this or 

Distribution: 

James A. Magenheimer, Esq., Office o 

Department of Labor, 1515 Broadway, 

10036 (Certified Mail> 

f settlement is 

pay a penalty of 

itor, U.S. 

New York, NY 

Gary L. Vanniere, Director of Personnel, P.O. Box 3, Ravena, 

New York 12143-0003 (Certified Mail) 

rbg 

1450 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

. S.EP 2 6 1986 

VICTOR L. TAYLOR, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

PHOENIX RESOURCES, INC., 

Respondent 

Docket No. WEVA 86-266-D 

MORG CD 86-6 

ORDER OF DISMISSAL 

Appearances: Larry Leffel, Mine Superintendent, for Respondent. 

Before: Judge Broderick 

On September 5, 1986, I issued an order to Complainant 

to show cause on or before September 19, 1986 why his 

complaint should not be dismissed because of his failure to 

appear at the hearing in Elkins, West Virginia on September 4, 

1986. Complainant has not responded to the order to show 

cause. 

Therefore, the complaint and this proceeding are 

DISMISSED. 

Distribution: 

1~5 Aldm~~ c;; James A. Broderick 

Administrative Law Judge 

Victor L. Taylor, P.O. Box 497, Mill Creek, WV 26280 (Certified 

Mail) 

Joseph W. R.. Lawson, II, Southeastern Employers Service Corp. , 

P.O. Box 1848, Bristol, TN 37621 (Certified Mail} 

Raymond Parker, President, Phoenix Resources, Inc., P.O. 

Box 20, Mounterville, WV 26282 (Certified Mail) 

slk 

1451 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 301986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TAC & C ENERGY, INC., 

Respondent : 

Docket No. KENT 85-101 

A. C. No. 15-13086-03517 

No. 2 Mine 

DECISION 

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner. 

Before: Judge Maurer 

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 $420 for an alleged violation of 30 C.F.R. 

§ 75.1701, because-of the asserted failure by the respondent 

to drill bore holes in advance of the working faces while 

within 75 feet of. an abandoned adjacent mine. 

The respondent contested the violation and requested 

a hearing. Pursuant to notice, a hearing was convened in 

Prestonsburg, Kentucky, on August 7, 1986, and while the 

petitioner appeared, the respondent did not. In view of the 

respondent's failure to appear, the hearing proceeded without him. For reasons discussed later in this decision, respondent is held to be in default, and is deemed to have 

waived his opportunity to be further heard in this matter. 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95~164, 30 u.s.c. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.1 et seq. --

1452 
Issue 

The issue presented in this case is whether the petitioner 

has established a violation of section 30 C.F.R. § 75.1701, 

and, if so, the appropriate civil penalty that should be 

assessed for the violation. 

MSHA's Testimony and Evidence 

The following MSHA exhibits were received in evidence 

in this proceeding: 

1. A copy of the section 104(a) Citation No. 2463641 1 

issued by Inspector Charles Slone on January 24, 1985. 

2. A copy of the section 104(b) Order No. 2463648, 

issued by Inspector Charles Slone on January 29, 1985. 

3. A copy of the Assessed Violation History Report 

for the respondent's No. 2 Mine from January 24, 1983, to 

January 23, 1985. 

Inspector Slone testified that he conducted a routine 

spot inspection of the mine on January 24, 1985. When he 

reviewed the mine map he noticed. that this mine had run 

parallel up beside an old, abandoned mine. After looking 

at the faces of entries one through six, he knew that entries five and six were mining close to this old adjacent 

mine. He estimated there was about 75 feet between the 

closest entry and the old works. Furthermore, while on the 

sections, he observed that there were no bore holes being 

drilled in advance of the working faces as 30 C.F.R. 

§ 75.1701 requires. 

After the inspector determined that the required bore 

holes were not being drilled, he informed Mr. Stanley, the 

mine foreman, that this would be one of the violations 

issued that day. Stanley reportedly said that he did not 

have the pr9per steel to drill the bore holes on hand so 

he said he would stop number 5 and 6 headings until the 

bore holes were drilled. The inspector thereupon issued 

Citation No. 2463641 and made the terminat.ion que. the following day, January 25, 1985. 

With regard to that citation, he marked negligence as 

"moderate" because this was the first time he had cited an 

instance like this at this particular mine. He marked 

gravity as "reasonably likely". The danger in this situation being that if they broke through with the ripper head 

of the continuous miner into the old adjacent mine, there 

could have been an onrush of water, or methane, or 

1453 
blackdamp. 1/ The inspector testified that this occurrence 

could have led to the deaths of the nine people working in 

this area. For these reasons, the inspector also determined 

that this violation was a "significant and substantial" one. 

On January 29, 1985, Inspector Slone returned to the 

mine. When he determined that coal was being mined with a 

continuous miner in both number 5 and 6 entries without the 

bore holes being drilled, he issued section 104(b) Order No. 

2463648 for failure to comply with the previously issued 

section 104(a) citation in that the bore holes still hadn't 

been driven and the time for abatement had elapsed. Subsequently, bore holes were drilled and the section 104(b) 

order was terminated. · 

The Secretary contends that this operator has a mediumsize operation and I.note from the company's violation history report for the two (2) years prior to this violation 

that it had a relatively unremarkable violation history. 

Respondent's Failure to Appear at the Hearing 

The record in this case indicates that a Notice of 

Hearing dated June 26, 1986, setting this case down for 

hearing in Prestonsburg, Kentucky, on August 7, 1986, was 

received by the respondent on July 3, 1986. The postal 

service certified mail return receipt card was signed by 

Sonja Darlington. Further, a Notice of Hearing Site dated 

July 30, 1986, was received by the respondent on August 1, 

1986. The green return receipt card was signed by Rhonda 

Darlington. 

When the respondent failed to appear at the appointed 

time and place, the hearing proceeded in his absence. On 

August 25, 1986, pursuant to Commission Rules, 29 C.F.R. 

§ 2700.63, I issued an Order to Show Cause to the respondent 

to show cause as to why it should not be defaulted for its 

failure to appear at the hearing. The respondent replied by 

y The term "blackdamp" is defined in the Bureau of .Mines, 

U. S. Department of Interior, A Dictionary of Mining, Mineral, 

and Related Terms (1968) at 108: 

Generally applied to carbon dioxide. Strictly speaking 

a mixture of nitrogen and carbon dioxide. The average 

blackdamp contains 10 to 15 percent carbon dioxide and 

85 to 90 percent nitrogen .••• An atmosphere depleted 

of oxygen rather than containing an excess of carbon 

dioxide .•.. It extinguishes light and suffocates its 

victims. 

1454 
letter dated September 4, 1986, received on September 11, 

1986. That letter, in its entirety, states: 

Mr. Roy J. Maurer: 

The reason I was unable to attend Docket No. Kent 

85-101 case on August 7, 1986 was because legal 

problems that I had to take care of at my other 

mines in Boon County, w.va. 

This was all unexpected and I was not able to get 

in contact with anyone to ask for a delay. 

Thank you, 

/Signature/ 

Glenn H. Trent Jr. 

President 

This is a totally unsatisfactory showing of good cause for 

failing to appear at the hearing, or sending someone else to 

represent the corporation, or at least giving some notice of 

inability to appear to either myself or counsel for the 

petitioner. Under the circumstances, I conclude and find 

that respondent has waived his right to be heard further in 

this matter and that he is in default. 

Fact of Violation 

I conclude and find that the petitioner has established 

a violation of 30 C.F.R. § 75.1701 by a preponderance of the 

evidence. The testimony of Inspector Slone fully supports 

the citation which he issued and it IS AFFIRMED. Furthermore, I conclude and find that the violation is significant 

and substantial and the inspector's finding in this regard 

is likewise AFFIRMED. 

Civil Penalty Assessment 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llO(i) 

of the Act, I conclude and find that the proposed civil penalty assessment of $420 is appropriate in this case. 

ORDER 

Respondent IS ORDERED to pay a civil penalty in the 

amount of $420 within thirty (30) days of the date of this 

decision, and upon receipt of that payment by MSHA, these 

proceedings are dismissed. 

urer 

rative Law Judge 

1455 
Distribution: 

Joseph B. Luckett, Esq., Office of the Solicitor, u. S. Department of Labor, 801 Broadway, Rm. 280, Nashville, TN 37203 

(Certified Mail) 

Glenn H. Trent, Jr., TAC & C Energy, Inc., Box 237, Gilbert, 

WV 25621 (Certified Mail) 

Yh 1456 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE L.AW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 301986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

Docket No. KENT 86-111 

A.C. No. 15-12672-03504 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. . 

. 

: 

River Dredge 

RIVCODREDGING CORPORATION, 

Respondent 

. . 

DECISION APPROVING SETTLEMENT 

Appearances: 

Before: 

Mary K. Spencer, Esq., Office of the Solicitor, 

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

for Petitioner; 

Mr. Gene A. Wilson, President, Rivco Dredging 

Corporation, Louisa, Kentucky, for Respondent. 

Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety 

and Health Act of 1977 Cthe Act). Petitioner has filed a 

motion to approve a settlement agreement and to dismiss the 

case. A reduction in penalty from $92 to $40 is proposed. I 

have considered the representations and documentation submitted in this case, and I conclude that the proffered settlement is appropriate under the criteria set forth in Section 

llO(i) of the Act. 

WHEREFORE, the motion for approval o settlement is 

GRANTED, and it is ORDERED that Respondent! p y a penalty of 

$40 within 30 days of this or er. · 

Distribution: 

\ 

Mary K. Spencer, Esq., Office of the 

ment of Labor, 4015 Wilson Blvd., Ro 

22203 (Certified Mail) 

/'v.J 

k 

Mr. Gene A. Wilson, President, Rivco Dredging Corp., P.O. Box 

702, Louisa, KY 41230 (Certified Mail) 

rbg 1457 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 3O1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

FREEMAN UNITED COAL MINING 

COMPANY, 

Respondent 

: 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 86-27 

A.C. No. 11-00611-03524 

Fidelity Strip Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On September 29, 1986, the Secretary of Labor filed a 

motion for approval of a settlement reached by the parties 

in this case. The violations were originally assessed at 

$1000 and the parties propose to settle for $475. 

The case involves a single citation charging a violation 

of 30 C.F.R. § 77.1607(c) because scrapers were not being operated 

at prudent speeds resulting in a head-on collision and a 

serious injury. The motion states that the violation was 

serious but did not result from Respondent's negligence. 

It was caused by a scraper operator violating Respondent's 

published safety rules and passing a water truck when 

visibility was diminished because of road dust. (The water 

truck was keeping the road wet to allay the dust.) Respondent 

is a large operator and has a favorable history of prior 

violations. 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 is APPROVED and Respondent 

is ORDERED TO PAY the sum of $475 within 30 days of the date 

of this order. 

James A. 

A/3t?J~ Broderick 

Administrative Law Judge 

1458 
Distribution: 

Miguel J. Carmona, Esq., U.S. Department of Labor, Office 

of the Solicitor, 230 s. Dearborn Street, 8th Floor, Chicago, 

IL 60604 (Certified Mail) 

Harry M. Coven, Esq., Gould & Ratner, 300 w. Washington St., 

Suite 1500, Chicago, IL 60606 (Certified Mail) 

slk 

1459 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 301986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

STANFORD MINING COMPANY, 

Respondent 

: CIVIL PENALTY PROCEEDING 

Docket No. PENN 85-288 

A. C. No. 36-00921-03528 

Penn Hill Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Maurer 

On September 29, 1986, the Solicitor filed a stipulation 

and motion to approve settlement agreement in the abovecaptioned case. At issue are two section 104(a) citations 

originally assessed at $10,000 each. Settlement is proposed 

at $6,600 per violation. 

Citation No. 2403809 was issued for a violation of 30 

C.F.R. § 75.200 in conjunction with Order of Withdrawal No. 

2403808 issued pursuant to section 107(a) when following a 

fatal roof fall investigation, it was determined that the 

roof of the active No. 4 entry of the 6 right 006 section 

had not been properly supported prior to continuing mining. 

The accident resulted in the death of section foreman 

Ernest E. Nichol as he attempted to install a roof bolt in 

this section. The accident investigation revealed that the 

No. 4 entry in violation of the mine's approved roof control 

plan had been mined approximately 12 feet inby the permanent 

roof supports and mining continued in the 1st open crosscut 

between the No. 3 and 4 entries holing and cutting back 

into the No. 4 entry. This resulted in an unsupported intersection approximately 30 feet long which condition led 

to the issuance of the imminent danger order, supra. 

Citation No. 2403811 was issued in conjunction with 

107(a) Order of Withdrawal No. 2403810 as a result of the 

same accident investigation. The investigation revealed 

that an imminent danger had been created when employees 

were proceeding inby permanent supports and the Automated 

Temporary Support System (ATRS) that was in use was not 

maintained tight against the roof after being placed. Citation 2403811 was issued for a violation of the approved 

roof control plan. Said plan requires, inter alia, that 

1460 
the ATRS be placed firmly against the roof and shall remain 

pressurized unless crib blocks or other suitable blocking 

material are used. The accident invest'igation disclosed 

that the victim had proceeded inby the permanent supports to 

manually adjust roof mats, i.e., additional supports that 

were placed on the extreme left ring of the ATRS. To enable 

the victim to adjust the mat, the ATRS was depressurized, 

resulting in the roof fall and fatality. 

The inspector determined that the violations were caused 

by the high negligence of the operator resulting in a fatal 

occurrence. The operator showed ordinary good faith in 

abating these practices. 

The Solicitor further asserts that the operator is currently in an impaired financial condition and that there would 

be an adverse impact on the operator's ability to remain in 

business if the proposed assessment were imposed on it. For 

example, in fiscal year 1985, the last for which totals are 

available, the operator suffered a net loss of $1,313,723. 

The Solicitor represents that the proposed assessment, 

as amended, is still a substantial penalty' and reflects due 

consideration of the gravity of the violations and the 

operator's negligence. 

I accept the Solicitor's representations and approve 

the settlement. 

ORDER 

The operator is ordered to pay $13,200 within 30 days 

of the date of this decision. 

a;brer 

1th~· trative Law Judge 

Distribution: 

David T. Bush, Esq., Office of the Solicitor, U. S. Department 

of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

R. Henry Moore, Esq., Rose, Schmidt, Chapman, Duff & Hasley, 

900 Oliver Bldg., Pittsburgh, PA 15222 (Certified Mail) 

yh 1461 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SEP 301986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BRUBAKER-MANN INCORPORATED, 

Respondent 

. . 

. . 

. 

. 

. . 

$ 

. 

. . 

Docket No. WEST 84-103-M 

A.C. No. 04-00030-05502 

Brubaker-Mann 

DECISION 

Appearances: Rochelle Ramsey, Esq., Office of the Solicitor, 

U.S. Department of Labor, Los Angeles, California, 

for Petitioner; 

Steve Pell, Esq., Ventura, California, 

for Respondent. 

Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, (MSHA}, charges respondent with violating 

safety regulations promulgated under the Federal Mine Safety and 

Health Act, 30 U.S.C. § 801 et seqe, (the Act). 

notice to the parties a hearing on the merits comLos Angeles 0 California on June 11, 1986. 

ties filed post-trial briefs. 

Issues 

tain threshold issues were discussed and ruled contrary 

·:.c respondent's contentions in WEST 84-96-M 

Stipulation 

ies stipulated that respondent is a small operatoro 

Further, respondent is subject to the Act unless MSHA's jurisdiction is pre-empted by the California Occupational Safety and 

Health Administration CTrQ 191, 249). 

Citation 2246284 

This citation charges respondent with violating 30 C.F.R. 

§ 56.14-3 which provides as follows: 

56.14-3 Mandatory. Guards at conveyor-drive, conveyorhead, and conveyor-tail pulleys shall extend a distance 

1462 
sufficient to prevent a person from accidentally reaching 

behind the guard and becoming caught between the belt and 

the pulley. 

Summary of the Evidence 

MSHA inspector Ronald Ainge, a person experienced in mining, 

issued this citation January 18, 1984 when he observed a violation of 30 C.F.R. § 56.14-3 (Tr. 16, 17, 22-26, 132-133, 

138-141; Ex. Pl, P2, P3). 

There was a possibility that.a man could contact the chain 

drive behind this waist high guard particularly while lubricating 

or cleaning the equipment CTr. 20, 21, 88, 90). The inspector 

did not observe anyone lubricating the machine while it was 

operating (Tr. 93). 

The handrail and the chain drive are approximately 40 to 42 

inches high (Tr. 263, 264). 

There is a possibility that a person could accidentally 

reach behind the machine although it is guarded in front and over 

the top (Tr. 88, 89). An employee could gain access by reaching 

behind the guard and contacting the pinch point (Tr. 21). 

By way of abatement the inspector required that the chain 

drive be enclosed from the back (Tr. 29). 

Mr. Mann testified this machine has been in operation 

between 25 and 30 years (Tr. 231>. Further, the guards had been 

previously approved by MSHA and Cal-OSHA inspectors (Tr. 231). 

The machine had a guard on the front and the top (Tr. 231). 

Further, no one would service this machine whiie it is operating 

(Tr. 231}. 

Evaluation of the Evidence 

The evidence establishes that the chain drive was guarded. 

However, the inspector concluded that a worker could accidentally 

reach behind the guard and contact the pinch points. 

The photographs do not support MSHA's theory that a 

violation existed here (Exhibits Pl, P2, and P3}. The pulley was 

guarded on the walkway side and a guard encircled the equipment. 

The conveyor itself blocked access to the unguarded side of the 

pulley. These factors cause me to conclude that no person could 

accidentally reach behind the guard and become caught between the 

belt and the pulley. 

Citation 2246284 and all penalties therefor should be 

vacated. 

Citation 2246286 

This citation charges respondent with violating 30 C.F.R. 

§ 56.14-6 which provides as follows: 

1463 
56.14-6 Mandatory. Except when testing the machinery, 

guards shall be securely in place while machinery is being 

operAted. 

Summary of the Evidence 

Inspector Ainge issued this citation because he observed 

that the chain drive was entirely exposed. It was about four and 

one half feet off of the ground, close to a walkway and easily 

accessible (Tr. 30, 31; Ex. P4J. 

A person cleaning or lubricating this equipment could 

contact the chain drive and incur an amputation CTr. 31). 

There were workers moving throughout the plant and they 

would be in area as needed (Tr. 32). In the inspector's opinion 

the company would service the equipment while it was running (Tr. 

32). Except for lunchtime he had never noticed a shutdown of the 

equipment which was conveying material. 

An injury was reasonably likely to happen due to this 

condition {Tr. 33). 

Mr. Tafoya, the company's respresentative, told the 

inspector that they had taken the old guard off to change the 

pulleys. After the change, the old guard would no longer fit 

(Tr. 33, 94). 

In abating the condition it was suggested that a guard cover 

the drive chain (Tr. 34). 

Witness Mann, who testified for the company, indicated the 

machine is in a very remote area. In addition, there was a 

temporary cover over it, but he was not familiar with it CTr. 

266). 

At the time of the inspection the machine was in the process 

of being tested and repaired (Tr. 232). 

Evaluation of the Evidence 

In connection with this citation I credit the inspector's 

testimony. He observed the violation over a period of time. His 

testimony is further confirmed by the statement of respondent's 

representative Tafoya. There was no indication the machinery was 

being tested and the inspector did not observe a shutdown of the 

equipment. 

Since the chain guard was unguarded, Citation 2246286 should 

be affirmed. 

1464 
Citation 2246287 

This citation charges respondent with violating 30 C.F.R. 

§ 56.14-1 which provides as follows: 

56.14-1 Mandatory. 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. 

Summary of the Evidence 

Inspector Ainge also issued this citation as a non-signif icant and substantial violation because the counter balance wheel 

on the simon shaker :1 was unguarded (Tr. 35, 99). 

The shaker generates considerable dust. A guard on the 

machine would preclude a possible broken bone (Tr. 100). 

Mr. Mann testified this machine had been inspected for about 

20 yearso No one had required a guard on the back of the counter 

balance. Such a guard would not enhance the safety of the 

machine. 

In addition, no one would service the machine while it is 

operating (Tr. 232, 233, 267). 

Evaluation of the Evidence 

Inspector Ainge testified as to facts that establish a 

violation of the regulationo 

Mr. Mann does not deny that the condition exists but he 

asserts no guard had been required on the machine for 20 years. 

However, the mere fact a guard had not previously required does 

not constitute a defense. Further, I credit the inspector's 

expertise on whether a guard would enhance the safety of this 

machine. 

Citation 2246287 should be affirmed. 

Citation 2246289 

This citation charges respondent with violating 30 C.F.R. 

§ 56.14-3 cited, supra. 

1/ A simon shaker is a screening deck that separates different 

sizes of material (Tr. 99). 

1465 
Summary of the Evidence 

This citation involved the chain drive of the conveyor 

system above the three-eighths inch rock hopper. The drive went 

from a motor to a head pulley (Tr. 40, 41; Ex. P7, PS, P9, PlO>. 

The head pulley did not have a back on it and it was also unguarded. The area had to be serviced and lubricated. A man 

could reach behind the guard and contact the pinch points between 

the drive chain and the sprockets (Tr. 40, 43). 

On the day of the inspection the inspector saw employees in 

the area. The employees would have to go behind the head pulley 

and down the other side to have access to other parts of the 

plant (Tr. 43). 

At any time during cleanup or lubrication these areas would 

be accessible (Tr. 44). The plant operated the entire time, 

except during lunch or a breakdown (Tr. 45). 

Abatement was achieved by placing a backguard on the chain 

drive and the tail pulley was enclosed with more screening 

material so as to restrict access (Tr. 45). 

Mr. Mann indicated this machine had been inspected many 

times in the last 20 to 25 years (Tr. 235). Prior to the 

inspection the machine had a back guard. But such a guard serves 

no purpose nor does it make the machine any safer (Tr. 235-237). 

The top of the conveyor was about 36 inches above the ground (Tr. 

275, 276). The pinch point was not accessible because a person 

would have to go around the guard (Tr. 274, 275; Ex. PlO). 

Evaluation of the Evidence 

The head pulley in this citation was unguarded. The factual 

situation accordingly differs from that in Citation 2246284, 

supra. 

I further credit inspector Ainge's testimony as to the 

violation. Exhibit PlO particularly shows the ready access a 

worker would have to this hazard. 

Citation 2246289 should be affirmed. 

Citation 2246292 

This citation charges respondent with violating 30 C.F.R. 

§ 56.9-7 which provides as follows: 

56.9-7 Mandatory. Unguarded conveyors with walkways 

shall be equipped with emergency stop devices or cords 

along their full length. 

1466 
Sununary of the Evidence 

There was a walkway on both sides of the conveyor system. 

But there was no guarding or emergency stop cords to stop the 

conveyor (Tr. 49, 111, 112, 135; Ex. Pl3, Pl4) •• 

The hazard here involved the possibility of a maintenance 

man being pulled into the conveyor system due to the absence of 

guarding or stop cords (Tr. 50; Ex. Pl3, Pl4). 

There were people working in the area on the day of the 

inspection (Tr. 50). 

The conveyor, according to Mr. Tafoya, had been in operation 

for a year. The inspector believed it was highly likely that an 

accident could occur (Tr. 52, 53, 114). 

Mr. Mann stated that they were testing a stream of the rock 

on this conveyor. They had worked on this equipment for over two 

years; whenever the weather was bad, or the rock was wet, or in 

between jobs (Tr. 239, 242). The only people in the area would 

be those working on it (Tr. 240). 

Evaluation of the Evidence 

I credit inspector Ainge's testimony in connection with this 

citation. 

It is clear that the conveyors were unguarded and not 

equipped with stop cords. Mr. Mann's testimony indicates that 

they were testing a stream of rock. I accept his explanation but 

the operation of the conveyor even in that manner would not 

excuse the use of stop cords. 

Citation 2246292 should be affirmed. 

Citation 2246293 

This citation charges respondent with violating 30 C.F.R. 

§ 56.14-1, cited supra. 

Sununary of the Evidence 

On the same conveyor system as previously cited, the head 

pulley was unguarded and accessible from both sides. There were 

handrails on the outer side but no guarding on the inside (Tr. 

53, SS: Ex. P15, 16). . 

Employees were working on the system the day the citations 

were written (Tr. 53). 

A worker could contact the unguarded head pulley between the 

conveyor system and the top of the head pulley (Tr. 53). This 

could occur during service, lubrication or cleanup (Tr. 54). 

1467 
An injury in these circumstances could range from one 

involving no loss time to a fatality (Tr. 55, 56). 

Mr. Mann indicated this machinery was not iri operation. 

Further, it would not be run without a head or tail pulley (Tr. 

242). 

Evaluation of the Evidence 

I credit Inspector Ainge's testimony. 

Mr. Mann's testimony is not persuasive. A conveyor is in 

operation although it is merely running a stream of rock for 

testing purposes. Further, the photographs show that the head 

pulley was unguarded (Ex. PlS, Pl6). 

The citation should be affirmed. 

Civil Penalties 

The statutory mandate to access civil penalties is contained 

in section llO(i) of the Act, now codified at 30 U.S.C. § 820Ci>. 

Concerning prior history: the computer printout (Ex. P34) shows 

that respondent had no violations in the two year period ending 

March 5, 1985. The printout shows two violations before March 6, 

1983. But, as the respondent contends, these would appear to be 

the two citations vacated in Brubaker-Mann, Inc., 2 FMSHRC 227 

(1980). Accordingly, I conclude that the Secretary has failed to 

prove any adverse history on the part of respondent. The parties 

have stipulated that the operator is a small company. The 

penalties appear appropriate in relation to the small operator 

and they should not affect the ability of the company to continue 

in business. Concerning the negligence of the operator: the 

violations that are affirmed all involve the failure to provide 

guards or related safety devices. These conditions were open and 

obvious hence the operator must be considered to be negligent. 

The gravity for the violations is high since an amputation or 

fatality could result from these conditions. The operator is 

credited with good faith since the company abated the violative 

conditions. 

The penalties proposed by the Secretary are as follows: 

2246284 

2246286 

2246287 

2246289 

2246292 

2246293 

to be vacated 

$ 63 

20 

46 

100 

63 

On balance, and in view of the statutory criteria, I consider that the more appropriate penalties are as set forth in the 

order of this decision. 

1468 
Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, the following conclusions 

of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2~ Citation 2246284 should be vacated. 

3. The following citations should be affirmed: 

2246286 

2246287 

2246289 

2246292 

2246293 

Based on the foregoing findings of fact and conclusions of 

law I enter the following: 

ORDER 

1. Citation 2246284 and all penalties therefor are vacated. 

2. The following citations are affirmed and the penalties 

as noted thereafter are assessed: 

Distribution: 

Citation 

2246286 

2246287 

2246289 

2246292 

2246293 

Penalty 

$52 

15 

36 

50 

42 

Law Judge 

Rochelle Ramsey, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3247 Federal Building, 300 North Los Angeles Street, 

Los Angeles, CA 90012 (Certified Mail) 

Steve Pell, Esq., 3200 Telegraph Road, Suite 207, Ventura, CA 

93003 (Certified Mail) 

/blc 

1469 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SEP 301986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BRUBAKER-MANN, INC., 

Respondent 

Before: Judge Morris 

. . 

. . Docket No. WEST 85-177-M 

A.C. No. 04-00030-05504 

Brubaker-Mann 

DECISION 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, (MSHA), charges respondent with violating 

a safety regulation promulgated under the Federal Mine Safety and 

Health Act, 30 u.s.c. § 802 et seg., (the Act). 

After notice to the parties a hearing on the merits commenced in Los Angeles, California on June 11, 1986. 

The parties filed post-trial briefs. 

Issues 

Certain threshold issues were discussed and ruled contrary 

to respondent's contentions in WEST 84-96-M. 

Stipulation 

The parties stipulated that respondent is a small operator. 

Further, respondent is subject to the Act unless MSHA's jurisdiction is pre-empted by the California Occupational Safety and 

Health Administration (Tr. 191, 249). 

Citation 2364577 

This citation charges respondent with violating 30 C.F.R. 

§ 56.9087 which provides as follows: 

§ 56.9087 Audible warning devices and back up alarms. 

Heavy duty mobile equipment shall be provided with audible 

warning devices •. When the operator of such equipment has an 

1470 
obstructed view to the rear, the equipment shall have either 

an automatic reverse signal alarm which is audible above the 

surrounding noise level or an observer to signal when it is 

safe to back up. 

Summary of the Evidence 

MSHA inspector Ronald Ainge issued this citation because a 

front-end loader, which was operating on the day of the inspection, did not have a functioning reverse alarm signal (Trc 

56, 119). There was a mill operator and a welder in the area but 

no spotter was available to tell the equipment driver when it was 

clear to back up (Tr. 56, 57, 120). The inspector was in the 

area for two days and he observed no person signaling the loader 

operator (Tr. 120, 121). 

Mr. Mann testified that the Caterpillar was equipped with a 

reverse signal alarm (Tr. 242, 243, 282). However, the alarm was 

causing the men mental stress so they turned it down so it could 

not be heard (Tr. 243, 283). Also there is supposed to be a 

spotter in the area. No accidents have occurred from this condition (Tr. 243, 284). In addition, this equipment operates in a 

noisy part of the plant <Tr. 283). 

Evaluation of the Evidence 

The inspector's testimony establishes a violation of the 

regulation. Mr. Mann's evidence fails to establish a defense. 

The fact that the workmen turned off the reverse alarm only 

contributed to the possibility of an accident or fatality. 

Citation 2364577 should be affirmed. 

Civil Penalty 

The statutory mandate to assess civil penalties is contained 

in section llO(i) of the Act, now codified 30 u.s.c. § 820Ci>. 

Concerning prior history: the computer printout (Ex. P34) shows 

that respondent had no violations in the two year period ending 

March 5, 1985. The printout shows two violations before March 6r 

1983. But, as the respondent contends, these would appear to be 

the two citations vacated in Brubaker-Mann, 2 FMSHRC 227 (1980). 

Accordingly, I conclude that the Secretary has failed to prove 

any adverse history on the part of respondent. The parties have 

stipulated that the operator is a small company. The penalty 

appears appropriate in relation to a small operator and it should 

not affect the ability of the company to continue in business. 

Concerning the negligence of the operator: this citation involved 

a failure to use a back-up alarm. This condition was obvious and 

the operator must be considered as negligent. The gravity is 

high since a fatality could result from this defect. The 

operator is credited with good faith since the company abated the 

violative condition. · 

On balance, I consider that the proposed penalty of $79 

should be reduced to $59·. 

1471 
Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, the following conclusions 

of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. Citation 2364577 should be affirmed and a penalty of $59 

should be assessed. 

Based on the foregoing findings of fact and conclusions of 

law I enter the following: 

ORDER 

1. Citation 2364577 is affirmed. 

2. A civil penalty of $59 is assessed. 

Law Judge 

Distribution: 

Rochelle Ramsey, Esq., Office of the Solicitor, u.s. Department 

of Labor, 3247 Federal Building, 300 North Los Angeles Street, 

Los Angeles, CA 90012 (Certified Mail) 

Steve Pell, Esq., 3200 Telegraph Road, Suite 207, Ventura, CA 

93003 (Certified Mail) 

/bls 

1472 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SEP 301986 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BRUBAKER-MANN, INC., 

Respondent 

: 

. . 

: 

. . 

Docket No. WEST 86-82-M 

A.C. No. 04-00030-05505 

Brubaker-Mann 

DECISION 

Appearances: Rochelle Ramsey, Esq., Office of the Solicitor, 

U.S. Department of Labor, Los Angeles, California, 

for Petitioner; 

Steve Pell, Esq., Ventura, California, 

for Respondent. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, CMSHA), charges respondent with violating 

safety regulations promulgated under the Federal Mine Safety and 

Health Act, 30 u.s.c. § 801 et seg., (the Act). 

After notice to the parties a hearing on the merits 

commenced in Los Angeles, California on June 11, 1986. 

The parties filed post-trial briefs. 

Issues 

Certain threshold issues were discussed and ruled contrary 

to respondent's contentions in WEST 84-96-M. 

Stipulation 

The parties stipulated that respondent is a small operator. 

Further, respondent is subject to the Act unless MSHA's jurisdiction is pre-empted by the California Occupational Safety and 

Health Administration (Tr. 191, 249). 

Citation 2669970 

This citation charges respondent with violating 30 C.F.R. 

§ 56.9088(a) which provides as follows: 

§ 56.9088(a) Roll-over protective structures (ROPS) 

and seat belts. 

1473 
(a) Excluding equipment that is operated by remote control, 

all self-propelled track-type (crawler mounted) or wheel~d 

(rubber-tired) scrapers; front-end loaders; dozers; 

tractors, including industrial and agriculture tractors but 

not including over-the-road type tractors (the type that 

pull trailers or vans on highways); and motor graders1 and 

wheeled prime movers (a tractor of the type and kind 

normally used as the mode of power for rubber-tired 

scrapers); as used in metal and non-metal mining operations, 

with or without attachments, shall be used such mining only 

when equipped with (1) roll-over protective structures · CROPS) in accordance with the requirements of paragraphs (b) 

through (g) of this standard, as applicable, and (2) seat 

belts meeting the requirements of the Society of Automotive 

Engineers (SAE), Motor vehicle Seat Belts Assemblies-SAE 

J4v, approved November 1955, revised July 1965; Seat Belt 

Hardware Test Procedures-SAE Jl40a, approved April 1970, revised February 1973; Seat Belt Hardware Performance Requirements-SAE Jl41; Operator Protection for Wheel Type Agricultural and Industrial Tractors-SAE J333a, approved April 

1968; revised July 1970, conforms to ASAE S305; and Seat 

Belts for Construction Equipment-SAE J386 approved March 

1968; and, in accordance with paragraphs Cb), (c), and Ce) 

of this standard, as applicable. 

Summary of the Evidence 

MSHA inspector Ronald Barri issued this citation when he saw 

a driver climb out of a small Michigan front-end loader that was 

not equipped with seat belts (Tr. 151, 153). At the time the six 

or seven foot high loader was parked in front of the hopper at 

the crusher (Tr. 151, 153). 

The lack of seat belts could cause the operator to be thrown 

from this equipment (Tr. 152). The inspector further considered 

it reasonably likely that this type of equipment would roll over 

(Tr. 152) o 

William Mann testified that the company had been informed 

that seat belts must be on the equipment but they do not have to 

be worn (Tr. 209). 

Further, the vehicles involved in this citation and the 

following citation operate on a level slab (Tr. 209). But they 

must otherwise transverse grades of eight to ten percent in the 

area (Tr. 285). 

Evaluation of the Evidence 

The MSHA's inspector's testimony establishes a violation of 

the regulation. 

Mr. Mann in his testimony asserts that the seat belts must 

be provided but need not be used. But in this case the loader 

was not equipped with a seat belt. Accordingly, a violation has 

been established and the citation should be affirmed. 

1474 
Citation 2669971 

This citation charges respondent with violating 30 C.F.R. 

§ 56.9088(a), cited supra. 

Summary of the Evidence 

This citation was issued by MSHA inspector Barri when he 

observed that half of the seat belt in the 988 Caterpillar 

front-end loader was missing (Tr. 154). 

The inspector observed the operator get out of the equipment 

(Tr• 154) • 

In the event of a rollover the operator could be thrown from 

the equipment and possibly crushed (Tr. 155). 

Evaluation of the Evidence 

The evidence establishes a violation of the regulation. 

A portion of a seat belt is not in compliance with the 

regulation. The citation should be affirmed. 

Citation 2669972 

This citation charges respondent with violating 30 C.F.R. 

§ 56.14007 which provides as follows: 

§ 56.14007 Construction and maintenance. 

Guards shall be of substantial construction and properly 

maintained. 

Summary of the Evidence 

This citation was issued when the MSHA inspector observed an 

8 by 10 inch opening in the top screen of a V-belt drive. The 

top of the screen was 18 to 24 inches from the ground (Tr. 

156-159; Ex. P17J. 

The hazard involved someone inadvertently getting their hand 

into the drive from the adjacent walkway (Tr. 158, 206). This 

exposure could cut or amputate a finger, hand or arm (Tr. 158). 

In order to gain access to this area a worker would have to 

bend over but he would not have to get on his hands and knees 

(Tr. 205). 

Evaluation of the Evidence 

The evidence indicates the guard, with an eight by ten inch 

opening, was not properly maintained. The photograph (Pl7) 

confirms the credible testimony. 

The citation should be affirmed. 

1475 
Citation 2669974 

This citation charges respondent with violating 30 C.F.R. 

S 56.11001 which provides as follows: 

§ 56.11001 Safe access. 

Safe means of access shall be provided and maintained to 

all working places. 

Summary of the Evidence 

A section of mat, eight inches wide and ten feet long, was 

missing on the outside edge of the landing along a walkway adjacent to a conveyor (Tr. 163, 164). 

Someone could step in this open hole and incur scratches, 

lacerations or a possible groin injury CTr. 164, 166, Ex. Pl9, 

P20). 

Witness Mann testified that this seldom used, almost 

obsolete non-working area, was in the older part of the plant 

(Tr. 216, 288). There is an area to the left of that shown in 

the photographs where people walk .<Tr. 216, 217 ;. Ex. Pl9, P20) • 

One would have to walk around bars and sections to walk on the 

area with the 10 foot missing section (Tr. 217). This area was 

not completely blocked off (Tr. 289). Employees have strict instructions not to enter any of the remote parts of the plant (Tr. 

289). But no area of the plant was signed to prohibit entry (Tr. 

289). 

Evaluation of the Evidence 

The facts establish a violation of the regulation. 

Employees had access to the violative condition. 

The defenses raised by Mr. Mann relate to the imposition of 

a civil penalty. Minimal access and instructions not to enter 

remote areas relate to gravity and negligence. The proposed 

civil penalty should be substantially reduced. 

Citation 2669975 

This citation charges respondent with violating 30 C.F.Ro 

§ 56.11002 which provides as follows: 

§ 56.11002 Handrails and toeboards. 

Crossovers, elevated walkways, elevated ramps, and stair.-

ways shall be of substantial construction provided with 

handrails, and maintained in good condition. Where necessary, toeboards shall be provided. 

1476 
Summary of the Evidence 

There were no handrails at the end of the elevated walkways 

of the fines conveyor. In lieu of handrails one side had a chain 

wired across it and the other had a piece of belting tied to it 

(Tr. 166, 167, 170: Ex. P21, P22, P23). 

If the wire or belting broke a person could fall 20 feet to 

the ground (Tr. 168). Such a hazard could cause a fatality or a 

serious injury (Tr. 169, 170). The likelihood of an injury was 

reasonably likely (Tr. 170). 

Witness Mann testified that no one has to go to this 

dead-end area of the plant except to repair a malfunction. If 

that occurred the plant would not be operating (Tr. 219, 220). 

Federal inspectors previously told the company to put a chain 

across this area (Tr. 219). After the company put a chain 

across, it was cited (Tr. 219). 

Evaluation of the Evidence 

The facts establish a violation of the regulation. The 

hazard of the situation was somewhat increased by the 

substitution of chain and belting in lieu of a substantial 

handrail. 

Mr. Mann's testimony goes to the company's negligence, an 

item to be considered in assessing a civil penalty. The citation 

should be affirmed. 

Citation 2669977 

This citation charges respondent with violating 3o·c.F.R. 

§ 56.14001!! which provides as follows: 

56014001 Moving machine parts" 

Gears 0 sprockets; chains~ drive, head, tail, and takeup 

pulleys 0 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 0 shall be guarded. 

Summary of the Evidence 

MSHA inspector Ronald Barri observed that the head pulley on 

the trumble conveyor lacked a guard. The pinch point was six 

inches from the walkway and 12 inches above it (Tr. 173, 174, 

177; Ex. P25)o There was a handrail alongside the walkway (Tr. 

198). A person cleaning the equipment or lubricating it couid 

become entangled in it (Tr. 174). 

1477 
The walkway 

belt (Tr. 175). 

such as possibly 

175, 176, 197). 

provided access but the access stopped at the 

The pinch point could cause a serious injury, 

strangling a person or injuring an arm (Tr. 

The company abated the condition by installing a guard CTr. 

176, 177; Ex. P26, P27). 

Mr. Mann testified that no injuries had ever occurred. with 

this machine. Further, before abatement, it had been in the same 

condition for 33 years (Tr. 223). Any injury would have to be 

deliberate (Tr. 224). 

Evaluation of the Evidence 

The evidence, supported by the photographs, establish that 

moving machine parts could be contacted by workers. 

Mr. Mann's testimony is not persuasive. The fact that no 

injury has ever occurred is most fortunate. But the purpose of 

such a safety regulation is to prevent the first accident. 

The citation should be affirmed. 

Citation 2669978 

This citation alleges a violation of 30 C.F.R. § 56.14001, 

cited, supra. 

Summary of the Evidence 

The MSHA .inspector testified that the oversized conveyor 

lacked a guard for the tail pulley (Tr. 179; Ex. P28). 

If a person contacted the pinch point, which was 18 to 20 

inches from the walkway, he could be pulled into it (Tr. 180-184). 

This could occur during cleanup, maintenance or lubrication (Tr. 

180-182). Employees use this walkway (Tr. 182). 

The hazard here could cause injury to an arm (Tr. 182). 

The company abated by installing an expanded metal guard 

<Tr. 183, 184: Ex. P29), although the tail pulley had structural 

steel around it (Tr. 196). To gain access to the area a person 

would have to get down on his hands and knees (Tr. 196). 

Mr. Mann indicated the tail pulley was located below a 

stairway (Tr. 224). It would be difficult as get close to the 

pinch points: in effect, it would require a deliberate act (Tr. 

224, 225). It is not reasonably likely that someone could be 

injured in this area (Tr. 225). 

1478 
Evaluation of the Evidence 

In connection with this citation I conclude it was not 

reasonably likely that a person could contact the pinch points. 

The inspector indicated a person would have to be on his hands 

and knees to make such a contact. Further, the structural steel 

around the pulley served as a guard. · 

Citation 2669978 should be vacated. 

Citation 2669979 

This citation charges respondent with violating 30 C.F.R. 

§ 56.12032 which provides as follows: 

§ 56.12032 Inspection and cover plates. 

Inspection and cover plates on electrical equipment and 

junction boxes shall be kept in place at all times except 

during testing or repairs. 

Summary of the Evidence 

The inspector observed that the junction box cover was 

missing from the drive motor on the number 3 conveyor (Tr. 184; 

Ex. P30) • 

The company abated by installing a cover (Tr. 185, 290; Ex. 

P31). 

The absence of a cover could result in a short. The 

inspector believed that it was reasonably likely that this could 

occur., However, there was a "slim to no" chance of a resulting 

electrocution from touching the frame of conveyor (Tr. 186, 194). 

The equipment was grounded (Tr. 194). 

Mr. Mann indicated an electrician was in the process of 

repairing this condition. He had returned to town for parts CTr. 

226). According to the company's electrician the condition 

proposed no danger to anyone (Tr. 226). 

Evaluation of the Evidence 

The testimony and the photograph establish that a violation 

occurred. Mr. Mann's testimony relates to the imposition of a 

penalty. The citation should be affirmed but the penalty 

substantially reduced. 

Civil Penalties 

The statutory mandate to access civil penalties is contained 

in section llOCi> of the Act, now codified at 30 u.s.c. § 820Ci>. 

Concerning prior history: the computer printout (Ex. P34) shows 

that respondent had no violations in the two year period ending 

1479 
March 5, 1985. The printout shows two violations before March 6, 

1983. But, as the respondent contends, these would appear to be 

the two citations vacated in Brubaker-Mann, Inc., 2 FMSHRC 227 (~980). Accordingly, I conclude that the Secretary has failed to 

prove any adverse history on the part of respondent. The parties 

have stipulated that the operator is a small company. Concerning 

the negligence of the operator: all of the citations that are 

affirmed involve open and obvious conditions that should have 

been known to the operator. The negligence of the operator is 

establLshed. Concerning gravity: In Citations 21669970 and 

2669971 (missing seat belts) a severe injury or fatality could 

occur. In Citation 2669972 (unguarded V belt) an amputation 

could occur. In Citation 2669974 (outside edge of landing mat 

missing) the gravity of the violation is considerably overestimated. Only a small strip of the mat was missing. In 

Citation 2669975 (wire and belting instead of handrail) the 

defenses raised by Mr. Mann minimize the gravity. In Citation 

2669977 (unguarded head pulley) the condition could cause a 

serious ~njury. In Citation 2669979 {cover plate) the gravity is 

very minimal in view of the fact that the system was grounded. 

The operator is credited with statutory good faith since the 

company abated the violative conditions. 

The Secretary's proposed penalties are set forth below. On 

balance, I consider the penalties assessed hereafter to be proper 

in view of all of the statutory criteria. 

Citation No. 

2669970 

2669971 

2669972 

2669974 

2669975 

2669977 

2669978 

2669979 

Proposed 

Assessment 

$ 91 

91 

91 

68 

91 

91 

91 

112 

Conclusions of Law 

Assessed 

$70 

70 

80 

10 

30 

80 

vacated 

10 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, the following conclusions 

of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. Cit.ation 2669978 should be vacated. 

3. The remaining citations should be affirmed and penalties 

assessed. 

Based on the foregoing findings of fact and conclusions of 

law, I enter the following: 

1480 
ORDER 

1. The following citations are affirmed and penalties 

assessed as noted: 

Citation No. 

2669970 

2669971 

2669972 

2669974 

2669975 

2669977 

2669979 

Penalty 

$70 

70 

80 

10 

30 

80 

10 

2. Citation No. 2669978 and all penalties therefor are 

vacated. 

Law Judge 

Distribution: 

Rochelle Ramsey, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3247 Federal Building, 300 North Los Angeles Street, 

Los Angeles, CA 90012 (Certified Mail) 

Steve Pell, Esq., 3200 Telegraph Road, Suite 207, Ventura, CA 

93003 (Certified Mail) 

/bls 

1481 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SEP 301986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

BRUBAKER-MANN INCORPORATED, 

Respondent 

. . Docket No. WEST 86-94-M 

A.C. No. 04-00030-05506 

Brubaker-Mann 

DECISION 

Appearances: Rochelle Ramsey, Esq., Office of the Solicitor, 

U.S. Department of Labor, Los Angeles, California, 

for Petitioner; 

Steve Pell, Esq., Ventura, California, 

for Respondent. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, (MSHA}, charges respondent with violating 

safety regulations promulgated under the Federal Mine Safety and 

Health Act, 30 U.S.C. § 801 et seg., .(the Act). 

After notice to the parties a hearing on the merits 

commenced in Los Angeles, California on June 11, 1986. 

The parties filed post-trial briefs. 

Issues 

Certain threshold issues were discussed and ruled contrary 

to respondent's contentions in WEST 84-96-M. 

Stipulation 

The parties stipulated that respondent is a small operator. 

Further, respondent is subject to the Act unless MSHA's jurisdiction is pre-empted by the California Occupational Safety and 

Health Administration (Tr. 191, 249). 

Citation 2669973 

This citation charges respondent with violating 30 C.F.R. 

§ 56.20003(a) which provides as follows: 

§ 56.20003(a) Housekeeping. 

At all mining operations: (a) Workplaces, passageways, 

storerooms, and service rooms shall be kept clean and 

orderly. 

1482 
Summary of the Evidence 

This citation was issued by MSHA inspector Ronald Barri 

because of a buildup of powder-like fines about six feet long and 

two feet deep on a walkway alongside a conveyor. The material 

had a thin layer of mud on it. This could cause slipping and 

tripping (Tr. 160-1621 Ex. Pl8) 

If someone fell it would not result in a serious injury CTr. 

162). 

Witness Mann indicated that no one goes to this area when it 

is wet (Tr. 212). A worker would not be in the area unless he 

was lubricating the conveyor and then it would be shut down (Tr. 

213). In addition, witness Mann indicated the area was blocked 

off (Tr. 213 >. 

Mr. Mann also stated that the area cited was located at the 

top and at the extreme end of the plant. No one would have 

occasion to be there except to clean up or lube the equipment 

(Tr. 287). 

Evaluation of the Evidence 

I find the inspector's testimony to be credible. Mr. Mann 

concedes a worker would be in the area if he was maintaining the 

equipment. Such minimal use exposes that worker to the violative 

condition. 

The citation should be affirmed. 

Citation 2669976 

This citation charges respondent with violating 30 C.F.R. 

§ 56.20003(a), cited supra. 

Summary of the Evidence 

This citation resulted from a spill of fine material 

approximately 18 inches deep along the walkway on top of the 

super doles storage tank (Tr. 171). This created a slipping or 

tripping hazard but injuries would be minimal (Tr. 173). 

The area, after abatement, was photographed (Tr. 172, Ex. 

P24). The desert, where this plant is located, by its very 

environment, causes a buildup of dust and sand (Tr. 200). But 

the inspector believed the buildup was caused by a leak in the 

conveyor because it was the same material that was in the bins 

(Tr. 202). 

Mr. Mann indicated the fines are a continual buildup and 

they clean it continually. No one would be on top of the tank 

unless there was a breakdown (Tr. 222, 223>~ 

1483 
Evaluation of the Evidence 

I cr~dit the inspector's testimony. His evidence establishes a violation. The same hazard and exposure existed as 

was discussed in the preceding citation. 

The citation should be affirmed. 

Citation 2669980 

This citation charges respondent with violating 30 C.F.R. 

§ 56.14001 which provides as follows: 

§ 56.14001 Moving machine parts. 

Gears, sprockets; chains; drive, head, tail, and takeup 

pulleys; flywheels; couplings~ shafts; sawblades; fan 

inlets; and similar exposed moving machine parts which may 

be contacted by persons, and which may cause injury to 

persons, shall be guarded. 

Summary of the Evidence 

There was no guard on the tail pulley of the two-inch rock 

conveyor to prevent a person from contacting a pinch point (Tr. 

187; Ex. P32). 

Employees have access to this area and a person could be 

caught and pulled into the tail pulley. A serious injury could 

result (Tr. 188, 189). 

A workman could be injured in cleaning, lubricating or 

maintaining equipment in the area (Tr. 189). 

The unguarded pinch point was 10 to 12 inches above and 18 

to 20 inches from the walkway (Tr. 189). 

The company installed a guard preventing access to the pinch 

point (Tr. 190; Ex. P33). In cross-examination the inspector 

agreed that the machine in question was under a stairway. 

Further, a person would have to squat and reach in to gain access 

to the pinch points (Tr. 194). 

Mr. Mann indicated that previous MSHA inspectors had not 

cited the company for this condition (Tr. 222; Ex. Rl). 

Evaluation of the Evidence 

The inspector agreed that the violative condition was under 

a stairway. In addition, a person would have to squat and reach 

in to gain access to the pinch points. The evidence causes me to 

conclude that this condition did not involve exposed moving 

machine parts which could be contacted by a workman. 

This citation should be vacated. 

1484 
Civil Penalties 

The statutory mandate to assess civil penalties is contained 

in section llOCi) of the Act, now codified 30 u.s.c. § 820(i). 

Concerning prior history: the computer printout (Ex. P34) shows 

that respondent had no violations in the two year period ending 

March 5, 1985. The printout shows two violations before March 6, 

1983. But, as the respondent contends, these would appear to be 

the two citations vacated in Brubaker-Mann, Inc., 2 FMSHRC 227 

(1980). Accordingly, I conclude that the Secretary has failed to 

prove any adverse history on the part of respondent. The parties 

have stipulated that the operator is a small company. The proposed penalties of $20 each for the housekeeping violations 

appear appropriate in relation to the size of the operator and 

they should not affect the ability of the company to continue in 

business particularly considering its annual approximate gross 

income of $1,000,000 (Tr. 301). Concerning the negligence of the 

operator: the housekeeping conditions were obvious and involved a 

substantial buildup. The operator must be considered to be 

negligent. The gravity, as noted by the inspector, is minimal. 

The operator is credited with statutory good faith since the 

violative conditions were rapidly abated. 

On balance, I consider that a civil penalty of $10 is 

appropriate for each of the housekeeping violations. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, the following·conclusions 

of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. Respondent violated 30 C.F.R. § 56.20003(a) in two instances as alleged in Citations 2669973 and 2669976. 

3. Respondent did not violate 30 C.F.R. § 56.14001 as 

alleged in Citation 2669980. 

Based on the foregoing findings of fact and conclusions of 

law I enter the following: 

ORDER 

1. Citation 2669973 is affirmed and a penalty of $10 is 

assessed. 

2. Citation 2669976 is affirmed and a penalty of $10 is 

assessed. 

3. Citation 2669980 and all penalties therefor are vacatedo 

Law Judge 

1485 
Distribution: 

Rochelle Ramsey, Esq., Office of the Solicitor, U.S. Department of 

Labor, 3247 Federal Building, 300 North Los Angeles Street, Los 

Angeles, CA 90012 (Certified Mail) 

Steve Pell, Esq., 3200 Telegraph Road, Suite 207, Ventura, CA 93003 

(Certified Mail) 

/bls 

1486 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SEP 301986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BRUBAKER-MANN INCORPORATED, 

Respondent 

. . 

. . 

. . 

. . 

. . 

Docket No. WEST 84-96-M 

A.C. No. 04-00030-05501 

Brubaker-Mann 

DECISION 

Appearances: Rochelle Ramsey, Esq., Office of the Solicitor, 

U.S. Department of Labor, Los Angeles, California, 

for Petitioner; 

Steve Pell, Esq., Ventura, California, 

for Respondent. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, (MSHA), charges respondent with violating 

two safety re_gulations promulgated under the Federal Mine Safety 

and Health Act, 30 u.s.c. § 801 et seq., (the Act). 

After notice to the parties a hearing on the merits 

commenced in Los Angeles, California on June 11, 1986. 

The parties filed post-trial briefs. 

Issues 

The issues are whether the Secretary's acts in issuing his 

citations exceed the powers legislated by Congress since the 

State of California has a mine safety program equal or superior 

to MSHA; further, whether the Secretary's conduct was arbitrary 

and capricious in violation of the 5th Amendment; finally, 

whether respondent has a right not to be inspected by MSHA when 

California has a viable mine safety program. 

The above threshold issues and the contentions raised by 

respondent require a review of certain uncontroverted evidence by 

witnesses Byron M. Ishkanian and William Mann. 

Bryon M. Ishkanian, testifying by deposition, identified 

himself as the principal engineer for mining and tunnelling for 

the State of California (D. 5, 6). He has 27 years experience in 

mine safety and for the last three years he has supervised 17 

1487 
subordinates engaged in the California mine safety programs CD. 

6, 7). Mines are defined by the state as activities involving 

the extraction of mineral resources CD. 7). Its inspectors are 

hired on the basis of formal training and experience CD. 19, 33). 

Brubaker Mann has been inspected by the state at least once 

a year. The company has one of the best safety records in the 

state. It is one of 904 mining locations within California CD. 

7-9, 13, 14). Inspections by California encompass mechanical 

guarding of head and tail pulleys, explosives, reverse alarms, 

seat belts and junction boxes on 220 volt drive motors CD. 10). 

If workers were exposed as alleged in the MSHA citations 

California could have issued citations CD. 13, 14). 

Before 1977 there were no MSHA inspections and the State was 

the sole inspecting authority in California 'CD. 16). 

The State has assisted in training MSHA and MESA inspectors. MESA also adopted some of California's regulations 

CD. 16, 17). MSHA's regulations are more general than 

California's and the MSHA inspector has a greater degree of 

discretion CD. 18). 

Mr. Ishkanian has no jurisdiction over MSHA but he has 

received numerous complaints about the dual enforcement presence 

in the State CD. 20-22). Art additional complaint is the lack of 

continuity in inspections because MSHA rotates its inspectors CD. 

24) . 

The efforts at mine safety by the state of California and 

MSHA are duplicative (De 13, 14). 

The witness discussed duplicate efforts with fede~al 

officials William c. Frohan, Tom Shepuk and Ray Bernard CD. 28, 

31). But their response was negative CD 29). The witness had no 

input in the drafting of the Federal Act CD. 35, 36). 

Norton Pickett, of the State of Nevada, has a job similar to 

that of the witness. Pickett has also complained about the 

duplication of safety efforts in Nevada. Pickett has worked for 

legislation in the U.S. Congress to correct this condition CD. 

23, 24) • 

Mr. Ishkanian can see no need for the duplicative efforts in 

California. MSHA's efforts could be better used elsewhere. 

Twenty-three or twenty-five states have mine safety programs but 

some states do not CD. 27-32). Section 512Ca) of the Federal Act 

says its purpose is to avoid duplication of effort CD. 31, 32). 

The thrust of the federal act is towards mine safety. Title 

8 of the California Administrative Code (attached to deposition 

as Exhibit A) deals with mine safety CD. 36, 37). 

1488 
The testimony of witness William Mann outlined here is 

generally relevant to the threshold issues raised in the case. 

Additional testimony of the witness appears hereafter in relation 

to certain specific citations, infra. 

Mr. Mann testified that he is the owner and operator of 

Brubaker-Mann, Inc. The company, engaged in rock crushing, ·has 

been in operation for 36 years. The company has worked hard for 

safety; in addition, there has never been a fatality or an overnight accident (Tr. 209, 210, 247>. 

The company's president also indicated that previous MSHA 

inspectors had not cited the company for the conditions now 

alleged in WEST 86-82-M and WEST 86-94-M (Tr. 227; Ex. Rl). In 

fact, the company relied on previous MSHA inspections in 1980, 

1981, and 1982 when the company was found not to be in violation 

of the regulations (Tr. 293, 294; Ex. Rl). MSHA inspects the 

company two to four times a year (Tr. 213). 

Mr. Mann stated that the inconsistent application of 

regulations and the duplication of efforts by MSHA and the State 

of California are a hardship on business <Tr. 295, 297). MSHA 

has different inspectors coming to the mine but the state uses 

the same inspector (Tr. 298). MSHA inspectors seems unfamiliar 

with milling (Tr. 299). 

Generally, in relation to the machinery, Mr. Mann testified 

that the company's various machines are never maintained, lubricated or oiled while they are operating. In fact, the plant is 

closed for maintenance from 3:30 p.m. to 5 p.m. daily as well as 

from 7 a.m. to noon on Saturdays (Tr. 211). In the absence of a 

major breakdown, maintenance takes place only when the plant is 

shut down (Tr. 211). In any event, the company's workers would 

not put their hands into the machinery (Tr. 211). 

Respondent's initial .contention centers on the proposition 

that Congress intended that MSHA should not exercise jurisdiction 

in states having a mine safety and health program. In support of 

its argument respondent cites portions of the Act, namely 30 

u.s.c. § 801Cg) and§ 959. 

Section '801Cg), in part, provides as follows: 

(g) it is the purpose of this chapter Cl) to establish interim mandatory health and· safety standards and to direct 

the Secretary of Health and Human Services and the Secretary 

of Labor to develop and promulgate improved mandatory health 

or safety standards to protect the health and safety of the 

Nation's coal or other miners; ••• (3) to cooperate with, 

and provide assistance to, the States in the development and 

enforcement of effective State coal or other mine health and 

safety programs1 and (4) to improve and expand, in cooperation with the States and the coal or other mining in1489 
dustry, research and development and training programs aimed 

at preventing coal or other mine accidents and occupationally caused disease in the industry. 

Section 959 provides as follows: 

Ca) The Secretary shall make a study to determine the best 

manner to coordinate Federal and State activities in the 

field of coal or other mine health and safety so as to 

achieve Cl) maximum health and safety protection for miners, 

(2) an avoidance of duplication of effort, (3) maximum effectiveness, (4) a reduction of delay to a minimum, and (5) 

most effective use of Federal inspectors. 

Respondent contends the Secretary not only failed to make 

his report l; but the evidence shows a duplication of effort by 

MSHA and the State of California; it further shows a lack of 

coordination of such mine safety activities, a lack of maximum 

effectiveness and a lack of effective use of federal inspectors. 

Respondent's contentions lack merit. There is no indication 

in the federal Act that Congress intended MSHA to withdraw if a 

viable state program existed. To "cooperate" with a state is in 

no way legislatively equivalent to withdrawing MSHA's enforcement 

action. 

The legislative history of the Act sets forth a view 

directly contrary to the position urged by respondent. The 

relevant legislative history states as follows: 

Effect on State Laws 

Under the Metal and Nonmetal Act States are encouraged to 

develop and enforce their own State plans meeting Federal 

requirements. Six States have State plans currently in 

effect. These are Arizona, Colorado, North Carolina, New 

Mexico, Utah, and Virginia. Under the Metal and Nonmetal 

Act the Secretary delegates his authority to States with approved plans to carry out his functions. 

Because State plans are not funded under the Metal and Nonmetal Act, but are entirely self-supported, Federal funds 

would not be removed from these plans with the repeal of the 

Metal and Nonmetal Act. As a result, these State plans 

would be expected to continue in conjunction with Federal 

enforcement under H.R. 4287. It would be a dual system 

which encourages State participation while at the same time 

not relinquishing Federal enforcement. However, the Federal 

law would supersede any State law in conflict with it. 

State laws providing more stringent standards than exist 

under the Federal law, however, would not be held in 

1/ It was not established at the hearing whether the Secretary 

did or did not make such a report. 

1490 
conflict with the act. (Emphasis added>. House of Representatives, 95th Cong, 1st Sess (1977) reprinted in Legislative History of the Federal Mine Safety and Health Act of 

1977, 95th Congress, lst Session, 381 (May, 1977>. 

Stark v. Wickard 64 s. Ct 559, 321 U.S. 288 (1944) relied on 

by respondent, states a well established principle of law. But 

respondent's position is not supported by the terms of federal 

statute or its legislative history. 

Respondent's argument that the Secretary was only to 

establish "interim" safety regulations is misdirected. The 1969 

Act provided that such "interim" regulations were to be in effect 

until superseded in whole or in part by improved mandatory health 

standards promulgated by the Secretary ••• § 201(a), Public Law 

91-173, 83 Stat 760. 

Respondent's further argument centers on the view that many 

of the citations in the instant cases involve conditions for 

.which respondent was not previously cited. Further, respondent 

was cited for conditions that have existed for 20 years or more. 

Respondent also relies on witness Ishkanian's testimony regarding 

MSHA requiring a generator to be moved CD. 22). 

Respondent's arguments and its cited cases are not persuasive. The evidence (Ex. Rl) clearly supports the view that 

respondent was not cited for a number of years for conditions for 

which it is now cited. This is a basic estoppel argument. 

Generally, an operator's reliance on prior inspections and the 

lack of citations from such inspections does not estop the 

Secretary from issuing a citation at a subsequent inspection. 

Inspectors tend to have different expertise and it is certainly 

possible that one inspector may believe a violation existed but 

another may lack the expertise to make such a determination. On 

the doctrine of estoppel see the Commission decision of King Knob 

Coal Company, Inc., 3 FMSHRC 1417 (1981>1 also Midwest Minerals 

Inc. 3 FMSHRC 251 Cl98l)J Missouri Gravel Co., 3 FMSHRC 1465 

(1981); Servtex Materials Company, 5 FMSHRC 1359 (1983). In 

short, the mere fact that a violative condition existed for 20 

years is not a defense. The Tapo road incident described by 

witness Ishkanian is not relevant here. It involved a mine 

operator other than this respondent CD. 22). In addition, 

witness Ishkanian's testimony about the lack of MSHA enforcement 

in Texas and Oklahoma is not relevant here. 

In sum, the Secretary does not have to justify enforcement 

proceedings in other states to proceed with these penalty 

proceedings in California. 

The contributions by the State of California to mine safety 

CD. 17, 27) are commendable. But such contributions do not 

require the Secretary to withdraw from the enforcement of the 

federal regulations in that State. 

1491 
Respondent's final position is that it has a property 

interest in the right not to be inspected by MSHA. This is so 

oecause the State of California is adequately making health and 

safety inspections of open pit gravel mines and it was the 

Congressional intent that MSHA avoid duplicative efforts. 

This is a restatement of the first argument. Even agreeing 

the state program is adequate, the federal Act is not open to the 

construction respondent urges. 

In Leis v. Flynt, 439 U.S. 438, 99 s.ct 698 (1979), cited by 

respondent, the Court ruled that the asserted right of an out of 

state lawyer to appear pro hoc vice in an Ohio Court did not fall 

among those interests protected by the due process clause of the 

14th Amendment. The cited case is not controlling in this 

situation. 

For the foregoing reasons respondent's threshold contentions 

are without merit and they are denied. 

Stipulation 

The parties stipulated that respondent is a small operator. 

Further, respondent is subject to the Act unless MSHA's jurisdiction is pre-empted by the California Occupational Safety and 

Health Administration (Tr. 191, 249). 

Citation 2246288 

This citation charges respondent with violating 30 C.F.R~ 

§ 56.14-1 which provides as follows: 

56.14-1 Mandatory. Gears1 sprockets; chainsi drive, 

head, tail, and takeup pulleys; flywheels1 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. 

Summary of the Evidence 

Ronald G. Ainge, a person experienced in mining, issued this 

citation on January 18, 1984 (Tr. 15-17, 36, 67). 

The inspector observed that the conveyor was in use. 

Further, the head pulley and the tail pulley were unguarded. 

Both pulleys were accessible (Tr. 37, 40, 101, 108; Ex. PS, P6). 

If a worker came in contact he could be pulled into the tail 

pulley (Tr. 38). 

In the inspector's opinion it was highly likely that a 

worker could come in contact with the pulley with a resulting 

loss of limb {Tr. 39, 40). The inspector was told that the 

machine had just been moved to a new location to replace a chute. 

But it was in production (Tr. 101-103). 

1492 
William Mann, owner of the respondent company, testified 

that this machine had been moved and was not ready for operation. 

The company was getting ready to test it. The photographs fail 

to indicate any dust or rock in the area (Tr. 234). 

Evaluation of the Evidence 

~his case presents a basic credibility conflict as to 

whether the conveyor was in operation. In this regard I credit 

the testimony of William Mann. As the operator of the plant he 

should know whether the conveyor was in use or whether they were 

preparing to test it. 

While the inspector indicated the equipment was in use he 

concedes that he was advised that it had been moved to this 

location. The photographs support respondent's version since 

they failed to show any dust or rock on the equipment (Ex. PS, 

P6). 

Since I conclude the conveyor was not in use, it follows 

that the exposed moving parts could not be contacted by any 

workers. 

For the foregoing reasons, citation 2246288 and all 

penalties therefor should be vacated. 

Citation 2246291 

This citation charges respondent with violating 30 C.F.R. 

§ 56.20-3Ca) which provides as follows: 

56.20-3 Mandatory. At all mining operations; (a) Workplaces, passageways, storerooms, and service rooms shall 

be kept clean and orderly. 

Summary of the Evidence 

This citation was issued by MSHA inspector Ainge. The cited 

condition was hazardous because of the spillage of fine sandy 

like material. This was evidenced by the amount of the spillage 

and its angle of repose (Tr. 46, 85). The depth on one side was 

18 to 24 inches and the angle of repose was straight up. It had 

filled the walkway including a four-inch kick plate on the outer 

edge. There was a 30-foot drop to the ground. The railings on 

the walkway conformed to existing requirements. But if a man 

tripped and slid underneath the bottom midrail (21 to 24 inches 

above the walking level) he could slip to the ground resulting in 

a possible fatality CTr. 46, 47, 75, 76; Ex. Pl2). 

The area was used several times a day to provide access to 

one section of the plant (Tr. 47, 87). 

1493 
In the inspector's opinion on this slippery surface, it was 

more than likely that an accident could occur (Tr. 49, 71-73, 86). 

The potential for injury increases with any increased increment 

of time CTr. 72). Abatement was achieved by blocking off access 

to the area and by providing an alternative route (Tr. 49). 

Mr. Mann indicated the spillage was not a hazard. Each time 

the rock color is changed the area is cleaned (Tr. 237, 238). 

There are guard rails around the tank and no one has been injured 

by this condition (Tr. 238). 

Evaluation of the Evidence 

The factual setting establishes a violation of the 

regulation. I reject Mr. Mann's testimony that no hazard existed. This was a passageway that was obviously not clean within 

the meaning of the regulation. Mr. Mann does not deny the 

existence of the condition. 

Citation 2246291 should be affirmed. 

Civil Penalty 

The mandate to assess civil penalties is contained in 

Section llOCi) now 30 U.S.C. 820Ci> of the Act. It provides: 

Ci) The Commission shall have authority to assess all civil 

penalties provided in this Act. In assessing civil monetary 

penalties, the Commission shall consider the operator's 

history of previous violations, the appropriateness of such 

penalty to the size of the business of the operator charged, 

whether the operator was negligent, the effect on the 

operator's ability to continue in business, the gravity of 

the violation, and the demonstrated good faith of the person 

charged in attempting to achieve rapid compliance after 

notification of a violation. 

Concerning prior history: the computer printout (Ex. P34) 

shows that respondent had no violations in the two year period 

ending March S, 1985. The printout shows two violations before 

March 6, 1983. But, as the respondent contends, these would 

appear to be the two citations vacated in Brubaker-Mann, Inc., 2 

FMSHRC 227 (1980). Accordingly, I conclude that the Secretary 

has failed to prove any adverse history on the part of respondent. 

The size of the penalty appears appropriate in relat~ons to the 

small size of the operator and the penalty is not likely to 

affect the ability of the company to continue in business since 

the company grosses approximately $1,000,000 annually. The 

operator was negligent inasmuch as this accumulation most likely 

occurred over a period of time and it could have been observed. 

The gravity of the violation is low due to the fact that the 

walkway was equipped with standard guard rails. The respondent's 

good faith is apparent inasmuch as it rapidly abated the violative condition. 

1494 
On balance, the Secretary's proposed penalty of $74 is 

excessive. I deem that a penalty of $24 is appropriate for the 

violation of 30 C.F.R. § 56.20-3(a). 

Briefs 

The parties have filed excellent briefs 2; which have been 

most helpful in analyzing the record and defining the issues. 

However, to the extent they are inconsistent with this decision, 

they are rejected. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, the following conclusions 

of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. Respondent did not violate 30 C.F.R. § 56.14-1. 

3. Respondent violated 30 C.F.R. § 56.20-3(a). 

Based on the foregoing findings of fact and conclusions of 

law I enter the following: 

ORDER 

1. Citatibn 2246288 and all penalties therefor are vacated. 

2. Citation 2246291 is affirmed and a penalty of $24 is 

assessed. 

Law Judge 

Distribution: 

Rochelle Ramsey, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3247 Federal Building, 300 North Los Angeles Street, 

Los Angeles, CA 90012 (Certified Mail) 

Steve Pell, Esq., 3200 Telegraph Road, Suite 207, Ventura, CA 

93003 (Certified Mail> 

2/ Companion cases filed simultaneously involving these parties 

are docketed as WEST 84-103-M; WEST 85-157-M; WEST 85-177-M; WEST 

86-82-M and WEST 86-94-M. 

/ols 1495 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE. LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 3O1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

RAVEN HOCKING COAL CORP., 

Respondent 

. . 

. . Docket No. WEVA 85-201 

A.C. No. 46-06104-03518 

Raven Dock 

DECISION APPROVING SETTLEMENT 

Appearances: Mary K. Spencer, Esq., Office of the Solicitor, 

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

for Petitioner~ 

Mr. William F. Zuspan, President, Raven Hocking 

Coal Corporation, Mason, West Virginia, for 

Respondent. 

Before: Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under Section 105Cd) of the Federal Mine Safety 

and Health Act of 1977 (the Act). Petitioner has filed a 

motion to approve a settlement agreement and to dismiss the 

case. A reduction in penalty from $620 to $400 is proposed. 

I have considered the representations and documentation 

submitted in this case, and I conclude that the proffered 

settlement is appropriate under the criteria set forth in 

Section llO(i) of the Act. 

WHEREFORE, the motion for approval of ~ttlement is 

GRANTED, and it is ORDERED that Respondent p a penalty of 

$400 within 30 days of this orde~ 

Y

,I \ ' 

Garff Me 

Ad~inist \ 

\ 

Distribution: \ 

i 

\ 

~ \ 

\ 

Mary K. Spencer, Esq., Office of the Department of Labor, 4015 Wilson Blvd., RQ m 1237A, Arlington, VA 

22203 (Certified Mail) \ 

Ms. Jo Ann Taylor, Secretary and Mr. William F. zuspan, 

President, Raven Hocking Coal Corp., P.O. Box 108, Mason, WV 

25260 (Certified Mail) 

rbg 1496 
FEDERAL M'INE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 301986 

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 

: 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

CONTEST PROCEEDING 

Docket No. WEVA 86-61-R 

Order No. 2711581~ 10/23/85 

Blacksville No. 1 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 86-115 

A.C. No. 46-01867-03669 

Blacksville No. 1 Mine 

DECISION 

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

U.S. Department of Labor, Philadelphia, Pennsylvania, for the Secretary of Labor (Secretary)1 

Michael R. Peelish, Esq., Pittsburgh, Pennsylvania 

for Consolidation Coal Co. (Consol). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

In the Contest proceeding, Consol challenges the propriety 

of Order No. 2711581 issued on October 23, 1985 pursuant to 

section 104(d)(2) of the Act. In the penalty proceeding, the 

Secretary seeks a civil penalty for the violation charged in the 

contested order. Pursuant to notice, the case was heard in 

Morgantown, West Virginia on September 3, 1986. Federal Mine 

Inspector Joseph Baniak and miner Clarence Shaffer testified on 

behalf of the Secretary. Robert w. ~ross, John Weber, Willis 

Fansler and John Tharp, all supervisory Consol employees, 

testified on behalf of Consol. The parties waived their right to 

file post hearing briefs, but each argued its position on the 

record at the close of the hearing. I have considered the entire 

1497 
record, and the contentions of the parties and make the following 

decision. 

FINDINGS OF FACT 

1. At all times pertinent to these proceedings, Consol was 

the owner and operator of an underground coal mine in Monongalia 

County, West Virginia, known as the Blacksville No. 1 Mine~ The 

mine produces coal which enters interstate commerce and its 

operation affects interstate commerce. 

2. Consol's annual production tonnage is approximately 

41,000,000. The subject mine produces approximately 1,775,000 

tons annually. Consol is a large operator. 

3. Consol demonstrated good faith in abating the cited 

violation after the order involved herein was issued. 

4. The imposition of a civil penalty in this proceeding 

will not affect Consol's ability to continue in business. 

5. The subject mine was assessed a total of 645 violations 

in the 24 months immediately preceding the issuance of the order 

involved herein. Citations for absent fire sensors were issued 

to Consol on October 9, 1985 and October 17, 1985. 

6. Order No. 2261971 

the Act on March 6, 1984. 

mine between March 6, 1984 

order contested herein. 

was issued under section 104(d)(l) of 

There was no "clean inspection" of the 

and October 23, 1985, the date of the 

7. On October 23, 1985 at 12:01 p.m., automatic fire 

sensors were absent on the 3-South Mother belt conveyor from the 

tail piece extending approximately 700 feet outby. The belt 

services the P-1, P-2 and P-3 sections. It was operating at the 

time. 

8. Inspector Baniak issued a§ 104(d)(2) order because of 

the above described condition covering the entire 3-South Mother 

belt conveyor. 

9. At the time the order was issued, a crew was working 

inby the area affected by the order. The air was ventilated to 

the return air course, but the ventilation was not completely 

effective, and up to 40% of the air was going to the working 

sections. 

10. When Inspector Baniak began his inspection of the 

subject mine on October 3, 1985, he had a discussion with mine 

management concerning fire sensors because he heard from miners 

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that belt moves were being made without fire sensors being 

installed. 

11. On October 17, 1985 Inspector Baniak met with 

management after the issuance of a citation for absent fire 

sensors.on that day. Baniak suggested that one person be made 

respnsible for seeing that fire sensors were properly installed. 

When Baniak was told that the mine did not keep sensors in the 

warehouse, but recovered them from the long wall section, he 

criticized this practice. Management representatives said they 

would order sensors. 

12. Following the issuance of the citation for absent fire 

sensors on October 9, 1985, Consol's safety supervisor directed 

the safety escort Willis Fansler to inspect all the mine belts 

for sensors. He checked all the belts on P-1, P-2, P-3 and the 

3-S Mother belt on October 14, 1985. All the fire sensors were 

in place. 

13. The 3-S Mother belt was not advanced between October 14 

and October 23, 1985. 

14. Consol's section foreman John Tharp performed preshift 

examinations of the 3-S Mother belt on October 21, 22 and 23. 

Tharp's examinations showed that fire sensors were present on the 

3-S belt on each of these days. He was aware of the citations 

which had been issued for absent fire sensors on October 9 

and 17, 1985. 

DISCUSSION 

The inspector concluded that fire sensors had never been on 

the 3-S Mother belt in the area cited. He based this conclusion 

on the fact that there was no evidence of lubricant along the 

wire to which the sensors were to be attached, and no evidence 

that the wire had been pricked. Sensors have a thick lubricant 

and are attached to the wire by a clasp which cuts into the wire. 

I have carefully considered the Inspector's testimony, but am 

unable to disregard, and there is no reason to discredit, the 

positive testimony of Consol's witnesses that the sensors were in 

fact on the wire on the morning of October 23 and prior thereto. 

REGULATION 

30 C.F.R. § 75.1103-4(a) provides in part: 

(a) Automatic fire sensor and warning device systems 

shall provide identification of fire witnin each belt 

flight (each belt unit operated by a belt dr~ve). 

(1) Where used, sensors resending to temperature rise 

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at a point (point-type sensors) shall be located at or 

above the elevation of the top belt, and installed at 

the beginning and end of each belt flight, at the belt 

drive, and in increments along each belt flight so that 

the maximum distance between sensors does not exceed 

125 feet, except as provided in paragraph (a)(3) •••• 

* * * 

(3) When the distance from the tailpiece at loading 

points to the first outby sensor reaches 125 feet when 

point-type sensors are used, such sensors shall be 

installed and put in operation within 24 production 

shift hours after the distance of 125 feet is reached. 

* * * 

ISSUES 

1. Whether the evidence establishes a violation of 30 C.F.R. 

§ 75.1103-4Ca)(l)? 

2. If so, whether the violation was significant and 

substantial? 

3. If so, whether the violation resulted from Consql's 

unwarrantable failure to comply with the standard? 

CONCLUSIONS OF LAW 

1. Consol is subject to the provisions of the Mine Safety 

Act in the operation of the subject mine. I have jurisdiction 

over the parties and subject matter of this proceeding. 

2. The evidence shows a violation of 30 C.F.R. 

§ 75.1103-4(a)(l). I have found (finding of fact 7) that there 

were no fire sensors on the 3-S Mother belt conveyor for a 

distance of 700 feet outby the tailpiece. This is a violation. 

The reason for the absence of the sensors is not relevant to the 

issue whether a violation occurred. 

3. The violation was of such nature as could significantly 

and substantially contribute to the cause and effect of a mine 

safety hazard. 

Discussion 

Fire sensors are designed to provide early warning of a fire 

to miner$ on the working section. I have found (finding of 

fact 9) that a crew was working inby the area affected by the 

order, and that some of the air from the belt was going.to the 

1500 
working sections. In the event of a fire the miners on the 

section would not receive timely warning so that they could get 

to the escapeway. Therefore I conclude that the violation 

contributed to na measure of danger to saf etyn reasonably likely 

to result in serious injury to miners. See Secretary v. Mathies 

Coal Company, 6 FMSHRC 1 (1984). I therefore conclude that the 

violation was serious. 

4. The violation was not the result of Consol's 

unwarantable failure to comply with the standard violated. 

Discussion 

The Commission apparently construes the term unwarrantable 

failure to comply to refer to a violative condition which 

resulted from indifference, willful intent, or a serious lack of 

reasonable care. United States Steel Corporation, 6 FMSHRC 1423 

(1984). This construction differs from that set out in Ziegler 

Coal Co., 7 IBMA 280 (1977), and imposes a greater burden on the 

Secretary than merely establishing the operator's negligence. In 

view of my findings that Consol examined all belts for fire 

sensors on October 14, 1985, and on the morning of October 23, 

1985, and found them in place, I cannot conclude that the 

violation resulted from Consol's indifference, willful intent or 

a serious lack of reasonable care. There is no evidence of the 

cause of the missing sensors at the time of the inspection. 

Consol witnesses speculated that the condition resulted from 

employee sabotage, but it did not present any evidence of such 

sabotage. In view of the previous citations and the problems 

Consol has had with keeping sensors on the belts, greater than 

ordinary vigilance was required to see that the sensors were in 

place. I conclude that the violation resulted from ordinary 

negligenceo 

5. Based on the criteria in section llO(i} of the Act, and 

my findings and conclusions set out above, I conclude that an 

appropriate penalty for the violation is $750. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. The order contested in Docket No. WEVA 86-61-R 

properly charged a violation of 30 C.F.R. 

§ 75.ll03-4(a)(l), and properly found that the 

violation was significant and substantial. 

2. The contested order improperly concluded that the 

violation resulted from consol's unwarantable failure to 

1501 
comply with the safety standard involved. Therefore the 

violation was not properly cited in a section 104Cd)(2) 

withdrawal order, see Old Ben Coal Company, 1 FMSHRC 1954 

(197.9)1 Itmann Coal Company v. Secretary, 2 FMSHRC 2193 

(1980) CALJ), since it was not a "similar violation" to that 

charged in the prior§ 104(d)(l) order. Therefore, the 

order is MODIFIED to a § 104(a) citation. 

3. Respondent shall pay a civil penalty of $750 within 30 

days of the date of this decision for the violation 

described in conclusion of law No. 2. 

Jtl#u-S ~-/Jr0ci+-te£ James A. Broderick 

Administrative Law Judge 

Distribution: 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Linda M. Henry, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

slk 

1502