APRIL 1983 

Commission Decisions 

4-28-83 MSHA ex rel Gerald D. Boone v. Rebel Coal Co. WEVA 80-532-D 

4-29-83 MSHA ex rel Stephen Smith et al v. Stafford Construction Co. 

Administrative Law Judge Decisions 

4-01-83 

4-04-83 

4-05-83 

4-06-83 

4-06-83 

4-06-83 

4-12-83 

4-12-83 

4-15-83 

4-18-83 

4-20-83 

4-20-83 

4-25-83 

4-25-83 

4-26-83 

FMC Corp~ 

Jay Montoya v. Valley Camp of Utah, Inc. 

N. A. Degerstrom, Inc. 

Amax Chemical Corp. 

Minerals Exploration Co. 

Leo Klimczak v. General Crushed Stone Co. 

John H. Middleton 

Homestake Mining Co. 

Alliance of Pucket Coal Co., Inc. 

Carl Amburgey v. Bright Coal Co. 

Southern Ohio Coal Co./UMWA (Intervenor) 

Black Diamond Coal Mining Co. 

Charles F. Lee & Sons, Inc. 

Jaqu~ys Mining Corp. 

Western Sl9pe Carbon, Inc. 

WEST 80-71-DM 

WEST 82-146-RM 

WEST 82-41-D 

WEST 79-14-M 

CENT 82-86-M 

WEST 81-189-RM 

YORK 82-21-DM 

CENT 80-356-M 

CENT 80-416-RM 

KENT 82-94 

KENT 82-:141-D 

LAKE 82-93-R 

SE 82-48 

LAKE 80-378-M 

WEST 80-412-M 

WEST 81-150-R 

Pg. 615 

Pg. 618 

Pg. 627 

Pg. 630 

Pg. 637 

Pg. 665 

Pg. 669 

Pg. 684 

Pg. 692 

Pg. 698 

Pg .. 705 

Pg. 712 

Pg. 729 

Pg. 764 

Pg. 785 

Pg. 788 

Pg. 795 
Commission Decisions 
APRIL 

The following cases were Directed for Review during the month of April: 

Secretary of Labor, MSHA v. Consolidation Coal Company, WEVA 82-209-R, 

WEVA 82-245; (Judge Broderick, March 3, 1983) 

Secretary of Labor, MSHA v. Mid-Continent Resources, Inc., WEST 82-174; 

(Judge Morris, February 28, 1983) 

Secretary of Labor on behalf of Chester Jenkins v. Hecla-Day Mines, Corp., 

WEST 81-323-DM; (Judge Vail, March 14, 1983) 

Secretary of Labor, MSHA v. Freeman United Coal Mining Co., LAKE 82-89; 

(Judge Broderick, March 16, 1983) 

Review was Denied in the following cases during the month of April: 

Secretary of Labor, MSHA v. Southern Ohio Coal Company, LAKE 80-142; 

(Judge Kennedy, March 14, 1983) 

Secretary of Labor, MSHA v. Plateau Resources, Ltd., WEST 82-114-M; 

(Judge Kennedy, March 30, 1983) 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 28, 1983 

Docket No. WEVA 80-532-D 

on behalf of Gerald D. Boone 

v. 

REBEL COAL COMPANY 

ORDER 

On December 6, 1982, the U.S. Court of Appeals for the Fourth 

Circuit issued an order granting the Secretary of Labor's petition 

for enforcement of a final order of the Conunission. Secretary of 

Labor and Gerald Boone v. Rebel Coal Co., NO. 82-1917, 4th Cir. In 

its order granting enforcement the Court stated: 

The court notes that with respect to back pay 

after October 9, 1981, the [Conunission's final] 

order prescribes a formula but not a fixed total 

amount. In the event that the parties fail to 

agree on the proper recovery, their dispute 

should be resolved by the Conunission with the 

right of judicial review to any party aggrieved 

by the Commission's resolution of such dispute. 

By letter dated April 7, 1983, counsel for the Secretary of Labor 

requested that the Commission reassume jurisdiction over the case 

and assign it to an administrative law judge for the purpose of 

resolving the back pay issue referred to by the Court. The letter 

asserts that "no monies have been paid to Mr. Boone" pursuant to 

the Commission's final order, and that no agreement has been reached 

with respect to the amount of further back pay owed. The letter 

indicates that counsel for the_ operator was mailed a copy of the 

request for reassertion of Commission jurisdiction, but no response 

from the operator to the request has been received. 

In view of the Court's order granting enforcement, the request 

by the Secretary, and the fact that no response has been received, 

C15 83-4-11 
the request to reassume jurisdiction over this matter is granted. 

The case is remanded to the administrative law judge who previously 

heard this matter for expedited proceedings in compliance with the 

Court's order. 

G16 
Distribution 

Robert A. Cohen 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Douglas D. Wilson 

Gardner, Moss, Brown & Rocovich 

P.O. Box 13606 

Roanoke, Virginia 24035 

Larry Harless 

United Mine Workers of America 

P.O. Box 1313 

Charleston, West Virginia 25325 

Gerald Boone 

Robertson Subdivision 

Prichard, West Virginia 25555 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 29, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

EX REL. STEPHEN SMITH, 

DONALD HANSEN, THOMAS SHITH 

AND PATRICIA ANDERSON 

v. 

STAFFORD CONSTRUCTION COMPANY 

DECISION 

Docket Nos. WEST 80-71-DM 

WEST 80-155-DM 

WEST 80-156-DM 

WEST 80-165-DM 

These c.onsolidated cases arise under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V 1981). Each 

case involves an alleged discriminatory discharge by the Stafford Construction Company in violation of section 105(c)(l) of the Mine Act. 1_/ 

1_/ Section 105(c)(l) 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 miners at the coal or other mine of 

an alleged danger or safety or health violation in a 

coal or other mine, or because such miner, representative of miners or applicant for employment is the 

subject of medical evaluations and potential transfer 

under a standard published pursuant to section 101 

or because such miner, representative of miners or 

applicant for employment has instituted or caused 

to be instituted any proceeding under or related to 

this Act or has testified or is about to testify in 

any 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). 

618 83-4-12 
The administrative law judge held that Stafford Construction had unlawfully discharged Stephen Smith and Thomas Smith in violation of section 

105(c)(l), but that it had lawfully discharged Donald Hansen and 

Patricia Anderson. l:_/ 

We granted cross petitions for review filed by the Secretary and 

Stafford Construction. 3/ The issue in each of the cases before us 

is whether the judge's decision is supported by substantial evidence. 

For the reasons set forth below, we conclude that in each case it is 

and, accordingly, we affirm the judge's holdings in all three cases. 

The Stephen Smith Case (WEST 80-156-DM) 

Stephen Smith was employed by Stafford Construction as a D-9 bulldozer operator at the company's Cotter Mill project, where it was 

building a retention dam. Smith was hired on July 10, 1978, and he was 

discharged on December 20, 1978. His termination slip stated that he 

was being discharged as a result of a "reduction in force." 

At the hearing, the Secretary alleged that Stephen Smith was 

discharged because of his involvement in safety matters at the 

project site, including Stafford Construction's belief that he was 

informing the Mine Safety and Health Administration ("MSHA") as to 

those safety matters. Stafford Construction defended principally 

on the ground that Smith was discharged as a result of a reduction 

in the company's work force, necessitated by the onset of winter. 

The judge rejected Stafford Construction's reduction-in-force defense, 

and held that the company violated section 105(c)(l) because it had 

discharged Stephen Smith for engaging in "protected activity." 3 FMSHRC 

at 2181. The protected activity referred to by the judge was Smith's 

involvement at the Cotter Mill project in safety complaints, which 

also led Stafford management to believe that he had reported safety 

problems to MSHA. 3 FMSHRC at 2179-82. 

Based upon our review of the record, we conclude that substantial 

evidence supports the judge's holding of discriminatory discharge. 

First, it is undisputed that Stephen Smith was active in safety 

matters at the Cotter Mill project and that Stafford Construction 

was aware of his safety activity. Second, two of Stafford Construction 1 s management officials testified that Smith was discharged 

because of his safety activity. 

Donald Hansen, the assistant project manager at the time of Smith's 

discharge, stated that prior to the discharge he was involved in conversations with other management personnel concerning the reporting of safetyrelated information by company employees to MSHA. Tr. 671. Hansen recalled 

a conversation he had on that subject with Harold Stafford, the company 

president, and Everett Poynter, the project manager. Hansen testified: 

2/ The judge's decision is reported at 3 FMSHRC 2177 (September 1981) 

(ALJ). 

3/ The Secretary did not, however, seek review of the case involving 

Donald Hansen (WEST 80-71-DM). 

619 
It was shortly after I became assistant project 

manager. I·don't remember the exact date but 

Harold, myself and Mr. Poynter were having 

lunch, at which time, they were discussing 

someone within the employment was turning 

in complaints to MSHA as well as to the 

Operating Engineers Number 9. 

* * * * * 

Mr. Stafford told both myself and Mr. Poynter 

that if we find out who these individuals were, 

that we were to find a reason to terminate them 

immediately. 

Tr. 671 (emphasis added). Hansen further testified that after Stephen 

Smith had been discharged, Poynter informed him, "[T]hat Mr. Smith was 

the individual who had been making complaints to MSHA and that Harold 

[Stafford] wanted him fired and that is the reason that he was terminated." 

Tr. 673 (emphasis added). 

Likewise, Patricia Anderson, the company's secretary-bookkeeper at 

the Cotter Mill project, testified that prior to Stephen Smith's discharge she had both taken part in, and had overheard, several conversations involving management personnel in which the subject of employee 

safety complaints to MSHA was discussed. The first such conversation 

occurred approximately one week prior to Smith's discharge and involved 

her and Richard Schneider, the company's maintenance superintendent. 

Regarding that conversation, Anderson stated, "[Management] had 

determined that it was Mr. Smith who was informing MSHA of all the 

problems on the job" and "that being involved in informing MSHA of 

the accidents and problems that were going on the job, that he 

wouldn't be with the company." Tr. 189. Anderson also stated that 

Schneider had called Smith "a son-of-bitch and stuff like that" and 

that his passing information to MSHA "was costing him his job." Tr. 

190, 192. 

In addition, Anderson further testified that approximately 

one week prior to Smith's discharge she had a similar conversation 

with Harold Stafford, president of the company. Anderson stated, 

"He said just that Steve Smith was passing information to MSHA, and 

that they knew he was the one, and that he would be terminated, that 

they didn't tolerate that." Tr. 194. Anderson also credited Mark 

Jackson, the second shift foreman, with stating that it was Stephen 

Smith who was informing MSHA as to safety matters at the project 

site. Tr. 199. 

Concerning Stafford Construction's business justification for 

the discharge, Anderson testified that the company was not in the 

process of a reduction in force at the time that Stephen Smith was 

discharged. Anderson, who kept the company's employment records at 

the Cotter Mill project, stated that she believed that the company 

was operating two shifts per day around that period of time and that 

it had also hired new employees. She further testified that there 

620 
were approximately 160 employees in January of 1979--the same number 

as there had been in December of 1978. (Smith was terminated on 

December 20, 1978.) Anderson added that both Harold Stafford and 

Donald Hansen informed her that the company had intended to work 

through the winter. Although the Cotter Mill project was shut down on 

January 5, 1979, because of a ground freeze (Tr. 181), Anderson testified that prior to that date there had been no decrease in the hiring 

of employees. 

The foregoing evidence amply supports the judge's conclusion 

that Stephen Smith was fired because of his protected safety 

complaints and management's belief that he had reported safety 

problems to MSHA. The evidence also supports the judge's rejection of the reduction-in-force defense. Discriminating against 

a miner because of safety complaints violates the express prohibitions of section 105(c)(l) of the Mine Act. Even if Stephen Smith's 

first complaint to MSHA on December 20, 1978, was made shortly after 

the decision to fire him (3 FMSHRC at 2182), discrimination against 

a miner based on a mistaken belief that he has engaged in protected 

activity also violates section 105(c)(l) of the Act. Moses v. Whitley 

Development Corp., 4 FMSHRC 1475, 1480 (August 1982). Accordingly, 

we hold that substantial evidence supports the judge's decision that 

Stephen Smith was discharged in violation of the Mine Act. 

The Thomas Smith Case (WEST 80-165-DM) 

Thomas Smith was also employed by Stafford Construction as an 

equipment operator at the Cotter Mill project. (He is the brother of 

complainant Stephen Smith). Thomas Smith was discharged on January 5, 

1979, purportedly for negligently breaking the lift arm on a No. 16 

motorgrader. At the hearing, Thomas Smith claimed that the real reason 

why he was discharged was because he and his brother, Stephen, had 

filed a safety complaint with MSHA on December 20, 1978. 

The judge held that.Thomas Smith was unlawfully discharged by 

Stafford Construction for filing the safety complaint with MSHA on 

December 20, 1978, a protected activity. 3 FMSHRC at 2184, 2187. 

The judge rejected, as pretextual, Stafford Construction's defense 

that Smith was discharged because he had negligently damaged the 

motorgrader. 3 FMSHRC at 2186-87. 

We hold that substantial evidence supports the judge's decision 

that Thomas Smith was discharged in violation of section 105(c)(l). 

The record establishes that Smith was active in safety matters at 

the Cotter Mill project. During the months of September, October 

and November of 1978, Smith had made four or five oral safety complaints to management personnel. Tr. 746-47. Specifically, he 

complained about insufficient lighting on the bulldozer that he 

was operating, as well as a short smoke stack that was causing smoke 

to blow in his face. Smith also filed, along with his brother, a 

written safety complaint with MSHA on December 20, 1978. Thomas 

Smith's signature is on the complaint, and it was shown to other 

workers at the Cotter Mill project on the morning of December 20. 

621 
In addition, the record establishes that contrary to the contentions of Stafford Construction, Thomas Smith was instructed by 

his supervisor to operate the motorgrader in the area where the 

lift arm was broken. Furthermore, Smith had been operating the motorgrader in that area for approximately two hours before the accident 

occurred. As found by the judge, Stafford Construction's discharge 

of Smith was inconsistent with its past practice of discharging 

employees for gross negligence only, which was not the case here. 

See 3 FMSHRC at 2185-87. This disparate treatment strongly suggests 

that the explanation offered by Stafford Construction for discharging 

Smith was a pretext. 

Finally, the testimony of Donald Hansen, the assistant project 

manager at the time of Smith's discharge, evidences the animus that 

Stafford Construction maintained toward employees who engaged in 

safety activity at the project site. Hansen testified that Harold 

Stafford, the company president, in referring to Thomas Smith stated, 

"There is the SOB who is causing us a lot of -- whose brother is 

causing us a lot of problems, and if you get a chance, fire him." 

Tr. 848. The problems referred to by Harold Stafford were the safety 

complaints that were being filed with MSHA. 

In sum, the record establishes that Thomas Smith was active in 

safety matters and that he had filed a safety complaint with MSHA on 

December 20, 1978. It also establishes that Stafford Construction 

took a dim view of such safety activity and that the reason offered 

by S~afford Construction for Smith's discharge were pretextual. 

Accordingly, for the reasons mentioned above, we affirm the judge's 

holding that Thomas Smith was unlawfully discharged in violation of 

section 105(c)(l). 

The Patricia Anderson Case (WEST 80-155-DM) 

Patricia Anderson began working for Stafford Construction as a 

secretary-bookkeeper at the company's Cotter Mill project in June of 

1978. She was discharged in February of 1979. The reason given by 

Stafford Construction for her discharge was incompetence. 

Anderson maintained that she was discharged because she had 

refused to lie to the MSHA representatives who were investigating 

Stephen Smith's discrimination complaint. Specifically, Anderson 

claimed that she was asked by Harold Stafford to tell the MSHA 

investigators that Stephen Smith was discharged as part of a 

reduction in force, even though the company records did not reflect 

that a reduction in force took place. Anderson was fired two weeks 

after she told Harold Stafford that she could not tell MSHA that 

the company had undergone a reduction in force. 

The judge held that Anderson was lawfully discharged. 3 FMSHRC 

at 2198. He stated that Stafford Construction did not interfere with 

Anderson's right to provide a statement to MSHA in its investigation 

822 
of Stephen Smith's complaint and that her discharge was in no way 

connected to her statement to Harold Stafford that she could not 

tell MSHA that Stephen Smith was terminated as part of a reduction 

in force. 3 FMSHRC at 2197. Accordingly, the judge did not reach 

the issue of Anderson's competence. 

The resolution of this case depends in large measure upon the 

testimony of Anderson regarding the events of January 30, 1979. 

Two separate meetings were held that evening as Stafford Construction management personnel prepared for interviews to be conducted 

the next day by the MSHA representatives investigating Stephen Smith's 

discrimination complaint. At the first meeting, Patricia Anderson 

and Richard Schneider, the maintenance superintendent, reviewed 

employee files and compiled a list as to the dates of employee 

terminations and the reasons for their termination. 

Anderson was called to a second meeting of Stafford Construction 

management personnel that evening. Harold Stafford, the president of 

the company, was present at that meeting. Anderson testified that the 

purpose of that second meeting was to instruct her as to what to tell 

the MSHA investigators the next day. She stated that at the meeting 

she was asked to tell MSHA that Stephen Smith was discharged due to a 

reduction in force. Anderson testified that she told Harold Stafford 

that she couldn't lie -- that she couldn't tell MSHA that there had 

been a reduction in force. She added that Harold Stafford then told 

her to say whatever she wanted to MSHA. Tr. 1348-49. 

The judge stated that the only testimony regarding the subject 

of lying to MSHA was the gratuitous statement of Anderson that she 

couldn't lie. 3 FMSHRC at 2197. Moreover, the judge noted that 

Anderson admitted that she was not specifically asked to lie by 

Harold Stafford (Tr. 1375-76). Id. The judge concluded, therefore, 

that Anderson's subsequent discharge was in no way connected to 

her statement to Harold Stafford that she would not tell the MSHA 

investigators that Stephen Smith was discharged as a result of a 

reduction in force. 

We agree with the judge's treatment of Anderson's testimony. 

Although Anderson may have perceived Harold Stafford's request that 

she provide MSHA with a statement that a reduction in force had taken 

place as a request that she lie to ·the MSHA investigators, her testi:.... 

many clearly establishes that such was not in fact the case. Harold 

Stafford did not ask Anderson to lie to the MSHA investigators. In 

fact, Anderson credits him with telling her to say whatever she wanted 

to MSHA. Further, as the judge found, the record does not show that 

Harold Stafford's reliance on the reduction-in-force defense was in bad 

faith. 3 FMSHRC at 2197. Finally, as the judge also noted, she was 

fired nearly two weeks after these meetings, and was not then preparing 

to testify, nor had she testified in the case. 3 FMSHRC at 2198. 

620 
In sum, the record does not support Patricia Anderson's claim 

that she was discharged in retaliation for her refusal to lie to 

MSHA. The only protected activity that the Secretary argued below, 

and the judge considered, was her right to testify truthfully. 

Therefore, she failed to establish a prima facie case that her 

discharge was, at least partially, motivated by protected activity 

on her part. Accordingly, we affirm the judge's holding that Anderson's 

discharge did not violate the Mine Act 

elson, Commissioner 

624 
Distribution 

Linda Leasure 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Mrs. Harold Stafford 

Stafford Construction Co. 

P.O. Box 1121 

Grand Junction, Colorado 81502 

Administrative Law Judge John Morris 

Fed. Mine Safety & Health Review Commission 

333 West Colfax Avenue, Suite 400 

Denver, Colorado 80204 

G25 
Administrative Law Judge Decsiions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FMC CORPORATION, 

Contestant-Respondent 

Contest of Citation 

APR 119 

v. 

Docket No. WEST 82-146-RM 

Citation No. 577552; 3/10/82 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent-Petitioner 

DECISION 

Civil Penalty Proceeding 

Docket No. WEST 82-207-M 

A/O No. 48-00152-05501 

FMC Mine 

These matters came on for a hearing on the parties' stipulation of 

material facts not in dispute and supplementary testimony. The dispositive 

issue is whether the agreed upon facts show that 9.5 pallets of Anfo, a 

blasting agent, was in "storage" as that term is used in the mandatory 

safety standard set forth in 30 C.F.R. 57.6-5 at the time the challenged 

citation was written. 

Findings 

At approximately 8:05 a.m., Wednesday, March 10, 1982, shortly 

after the beginning of the day shift at the FMC Mine, Gary Hornsby, the 

foreman in charge of hauling, supervised the unloading of forty-two, 50 

pound bags of an explosive, Anfo, in the storage yard of the #3 -shaft. 

By happenstance the area in the yard where the Anfo was unloaded to 

await further mo~ement underground was within 8 feet of a 500 gallon 

portable oil dispensing tank. This tank was, at the time, full of 

hydraulic fluid, a combustible. A small amount of the hydraulic fluid 

was spilled under the tank. 

It was the operator's regular practice to unload Anfo in the yard 

of the #3 shaft prior to transporting it to the shaft and dispatch to 

the face areas of the mine. Normally the Anfo was moved from the yard 

into the underground areas of the mine by 1:00 p.m. of the day it 

arrived. 

30 C.F.R. 57.6-5 provides in pertinent part that: 

Areas surrounding • • • facilities for the storage of 

blasting agents shall be kept clear of rubbish, brush, 

dry grass, or trees (other than live trees more than 

10 feet tall), for a distance of not less than 25 feet 

in all directions, and other unnecessary combustible 

materials for a distance of not less than 50 feet. 
30 C.F.R. 57.6-43 provides: 

Vehicles containing explosives of detonators shall 

be posted with proper warning signs. 

30 C.F.R. 57.6-65 provides: 

Vehicles containing detonato.rs or explosives, other 

than blasting agents, shall not be left unattended 

except in blasting areas where loading or charging 

is in progress. 

At approximately 9:40 a.m., a Federal Mine Inspector observed the 

Anfo sitting in the yard of the #3 shaft next to the tank of hydraulic 

fluid. He was immediately concerned that the explosive was located so 

near an "unnecessary combustible," the tank of hydraulic fluid. 

The inspector immediately called the condition to the attention of 

the foreman, Mr. Hornsby, and at 10:15 a.m. wrote a 104(a), S&S citation 

that charged a violation of 30 C.F.R. 57.6-5 only. The citation stated: 

There were approx. 9-1/2 pallets of ammonium nitrate fuel 

oil blasting agent stored in the #3 Shaft storage yard. 

These.pallets were about 8 feet from a 500 gal. portable 

oil dispensing tank. This tank was checked and found to 

be full of hydrolic oil. There was also a small accumulation of oil under this tank. There were no explosive signs 

in the area and the blasting agents were not attended. Each 

pallet contains 42 bags of blasting agent, each weighing 

50 pounds. 

The portable oil tank was removed immediately. In addition, guards 

were stationed and the Anfo posted with "Danger Explosives" signs. 

Thus, the condition was abated within an hour and a half after the Anfo 

was unloaded in the yard. 

Conclusions 

The operator contends the area identified in the citation was not 

a "facility for storing blasting agents" within the meaning of the 

standard because the Anfo was in transit for use in the underground 

areas of the mine. The S~cretary, on the other hand, claims that the 

fact that the Anfo was unloaded in the storage yard awaiting further 

movement to the underground face areas and that it was the regular 

practice of the operator to handle the Anf o in this manner for periods 

up to five or six hours created a hazard against which the standard was 

directed, namely, the occasion for the placement of explosives in close 

proximity to unnecessary combustibles. 

623 
Both parties seek to make a fortress of the dictionary. Words, of 

course, are but the skin of living thoughts and must be assigned meanings 

in the real world consonant with the physical context fairly envisioned 

at the time of their utterance. There is no dispute about the fact that 

the yard of the #3 Shaft was a "facility" or that it was used as a 

holding area for materials intended for use in the underground parts of 

the mine. All storage connotes a temporary placement awaiting further 

movement or transport to the place of ultimate rest or use. 

It is true, as the operator points out, that the impermissible 

storage here was relatively brief. But the point is that even during 

that brief period, an hour and a half, the Anfo was within an impermissible proximity to the combustible hydraulic fluid. I find, therefore, that for that period of time the Anfo was in impermissible storage 

within the meaning of the standard cited and that the violation charged 

did, in fact, occur. 

I further find that the additional conditions cited, namely, the 

absence of a guard or danger signs were not a violation of the 30 C.F.R. 

57.6-43 or 57.6-65 inasmuch as the explosives were not on a vehicle. 

Order 

Accordingly, it is ORDERED that (1) the validity of the citation 

be, and hereby is, AFFIRMED; and (2) that in accordance with the parties' 

stipulation the amount of the penalty warranted is $119.00. It is 

FURTHER ORDERED that the operator pay the penalty assessed on or before 

Friday, April 15, 1983 and that subject to payment the captioned matters 

be DISMISSED. 

Administrative Law Judge 

Distribution: 

Robert Lesnick, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1585 Federal Bldg., 1961 Stout St., Denver, CO 80294 

(Certified Mail) 

James Holtkamp, Esq., Vancott, Bagley, Cornwall & McCarthy, 50 South 

Main Street, Suite 1600, Salt Lake City, UT 84144 (Certified 

Mail) 

623 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JAY MONTOYA, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 4 1983 

Complainant 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION, OR 

INTERFERENCE 

VALLEY CAMP OF UTAH, INC., 

Respondent 

Docket No. WEST 82-41-D 

Appearances: 

Before: 

DENV CD 81-21 

Belina No. 2 Mine 

DECISION 

John L. Lewis, Esq. and Thomas Cerruti, Esq., Jones, 

Waldo, Holbrook & McDonough, Salt Lake City, Utah, for 

Complainant; 

John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, for Respondent. 

Judge Melick 

This case is before me upon the complaint of Jay Montoya under section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801, et seq., the "Act," alleging that Valley Camp of Utah, 

Inc., (Valley Camp), unlawfully issued .a written reprimand to h_im on 

February 13, 1981, contrary to section lOS(c)(l) of the Act. 'l.I Mr. 

Montoya further alleges that because Valley Camp refused to withdraw the 

alleged unlawful reprimand, he was compelleg to resign under protest 

1./ Section lOS(c)(l) provides in 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 exerd.se of the 

statutory rights of any miner * * * in any coal * * * mine 

subject to this Act because such miner * * * 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 of the coal * * *mine of 

an alleged danger or safety or health violation in the coal 

* * * mine * * * or because of the exercise by such miner 

* * * on behalf of himself or others of any statutory right 

afforded by this Act. 

630 
2 

on June 10, 1981. He claims that his resignation and his refusal to return to work were the result of fears for his safety and fears of future 

harassment through contrived infractions that would be used to set up a 

discharge "for cause". He argues, accordingly, that his resignation was 

a constructive discharge caused by the unlawful reprimand and cites supportive decisions under the National Labor Relations Act. 2/ Evidentiary hearings were held on Mr. Montoya's complaint on December 15 and 16, 

1982, in Salt Lake City, Utah. 

Motion to Dismiss 

Valley Camp argues as a preliminary matter that the Complainant had 

failed to meet the time deadlines set forth in sections 105(c)(2) and 

105(c)(3) of the Act. Under section 105(c)(2), if the miner believes 

that he has been unlawfully discharged, interfered with, or otherwise 

discriminated against, he may, within 60 days after the alleged violation occurs, file a complaint with the Secretary of Labor asserting 

such unlawful acts. The relevant legislative history provides in part 

as follows: 

While this time-limit is necessary to avoid stale claims 

being brought, it should not be construed strictly when the 

filing of a complaint is delayed under justifiable circumstances. Circumstances which could warrant the extension of 

the time-limit would include a case where the miner within the 

60-day period brings the complaint to the attention of another 

agency or to his employer, or the miner fails to meet the timelimit because he is misled as to or misunderstands his rights 

under the Act. 

S. Rep. 95-181, 95th Cong., 1st session, 36th (1977), reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 9th Congress, 2nd session, Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 624 (1978), ("Legis. Hist."). See Herman v. 

Imco Services, 4 FMSHRC 2135 (1982). Prejudice to the operator caused 

by the delay is also a factor to be considered. Herman, supra. 

The specific issue to be decided, then, is whether appropriate circumstances exist in this case that would justify an extension of the 

filing deadline set forth in section 105(c)(2) and whether the operator 

has been prejudiced by the delay. The operator as the moving party and 

]:_/ NLRB v. Waples-Platter Co., 140 F. 2d 228 (5th Cir. 1944); Caroll 

Egg Co., Inc. and Amalgamated Meat Cutters and Butcher Workmen of North 

America, 130 NLRB 100 (1961), Cavalier Olds., Inc. and Professional 

Automobile Association, 172 NLRB 96 (1968), and M.R. Products, Inc. and 

International Union, United Automobile, Aerospace and Agricultural 

Implement Workers of America, 179 NLRB 17 (1969). 

G31 
3 

proponent of the statutory limitation period carries the burden of 

establishing that the Complainant is barred by those provisions. 5 

U.S.C. § 556(d); Raymond v. Eli Lilly & Co., 412 F. Supp• 1392, at 1401 

(DCNH, 1976). 

In this case, it is undisputed that the initial act of alleged discrimination occurred on February 13, 1981, when Mr. Montoya was issued 

the written reprimand at bar (Ex. 0-3). Moreover, it is clear that Mr. 

Montoya did not file his formal complaint of discrimination with the 

Federal Mine Safety and Health Administration until August 19, 1981, 

·more than 6 months later. (Ex. C-9); The record in this case also 

shows, however, that as early as March 12, 1981, Montoya brought his 

complaint to the attention of his employer (Ex. C-10). In a letter of 

·that date received by the employer shortly thereafter, Montoya asserted 

the allegations now raised with sufficient clarity so as to have placed 

Valley Camp on notice of the complaint herein. 

Mr. Montoya testified that in composing this letter, he relied upon 

a copy of regulations received when he first worked for Valley Camp and 

which set forth procedures for filing complaints of discrimination (Ex. 

C-12). While the particular regulations relied upon concern discrimination complaints under the Surface Mining and Reclamation Act, the 

testimony of the Complainant is credible at least to the extent that it 

demonstrates reasonable good faith efforts to promptly assert his rights 

within his limited knowledge and capacities. It is also apparent that 

Mr. Montoya did file a complaint with the Federal Mine Safety and Health 

Administration promptly upon learning that that was the proper agency 

with which to file. Within this framework and in the absence of evidence of prejudice to the operator caused by the filing delay, I find 

that extension of the time limit set forth in section 105(c)(2)" is 

warranted. Mr. Montoya's complaint filed August 19, 1981, is accordingly deemed to have been timely filed. 

Under section 105(c)(3) of the Act, the miner has the right, within 

thirty days of notice of the Secretary's determination that the Act has 

not been violated, to file an action in his own behalf before the Commission. In this case, the Secretary notified Mr. Montoya of its determination by letter dated October 19, 1981 (apparently received by the 

Complainant on November 3, 1981), and Mr. Montoya filed his request for 

review by the Commission on November 17, 1981. I find therefore that 

Mr. Montoya has, in fact, complied with the filing requirements under 

this section of the Act. For the above reasons, the operator's Motion 

to Dismiss is denied. 

The Merits 

In order to establish a prima facie violation of section 105(c)(l) 

of the Act, the Complainant must prove by a preponderance of the evidence that he has engaged in an activity protected by that section and 

632 
4 

that he has suffered discrimination, interference, or discharge, which 

was motivated in any part by that protected activity. Secretary, ex 

rel. David Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (1980), 

reversed on other grounds, sub nom, Consolidation Coal Co. v. Secretary, 

663 F. 2d 1211 (3rd Cir. 1981). 

In this case, there is no dispute that Mr. Montoya had engaged in 

protected activities. On February 9, 1981, Montoya was on the 4 p.m. to 

midnight shift working as a miner operator at the face of the·No. 2 

entry of the first east mains section. · The miner helper had previously 

warned Montoya of "bad" roof in that entry and Montoya had, in turn, 

complained about this to his foreman, Roy Tellerico. Although Tellerico 

did not agree that the roof was bad, he apparently agreed nevertheless 

to insert "I" beams to buttress the roof to satisfy Montoya. With the 

understanding that "I" beams would later be inserted, Montoya finished 

cutting the face that day. He was apparently injured the next day for 

reasons unrelated to the roof condition and was unable to return to work 

until February 13. 

The "I" beams were still not in place when Montoya arrived at the 

No. 2 entry on February 13. Someone in the section again warned Montoya 

about the "bad" roof and Montoya claims that he tested the roof near the 

face himself by "thumping" it. It sounded hollow and debris sifted from 

the roof. Foreman Tellerico again disagreed with Montoya about the 

safety of the roof. Montoya consulted the Mine Safety Committeeman 

Clarence Denny. Denny also thought the roof was dangerous and told 

Montoya that if he refused to work under it, "he would back him on it." 

Denny could see that the roof was separating from the ribs and the roof 

sounded hollow, indicating to him a dangerous separation. Denny agreed 

that they indeed needed cross bars for additional roof support._ 

Cameron Montgomery also saw the roof conditions in the No. 2 entry 

at that time. According to Montgomery, thr~e other miners also agreed 

with him that it was "bad top". Another union safety committeeman, 

Joseph Haycock, shift foreman Joe Tiller, and foreman Joe Tellerico 

later tested the roof and concluded it was safe. Valley Camp does not, 

however, dispute that the circumstances in this case were sufficient to 

show that Complainant's work refusal was based upon a good faith, reasonable belief that the roof condition was hazardous and that his work 

refusal therefore constituted a protected activity within the scope of 

section lOS(c)(l). See Robinette v. United Castle Coal Co., 3 FMSHRC 

1803 (1981). Valley Camp also acknowledges that the Complainant's 

report of unsafe working conditions constituted a protected safety 

complaint within the scope of that section. 

The second element of a prima facie case is a showing that the 

adverse action (here, the issuance of a written reprimand and the alleged constructive discharge) was motivated in any part by the protected 

activity. In support of his position that Valley Camp was unlawfully 

motivated by his protected activity, Montoya alleges that management 

633 
5 

had knowledge of his .protected activity, that management showed hostility towards that protected activity, that there was a close proximity in time between the protected activity and the adverse action, and 

that the adverse action was disproportionate to the violation alleged in 

the reprimand. 

The evidence shows that when the Complainant refused to work under 

the roof at the No. 2 face, Shift Foreman George Tiller directed him and 

another miner, Cameron Montgomery, to perform alternate work. Ten or 

fifteen minutes later, Tellerico told Montoya to tram the continuous 

miner to the No. 4 entry. Tiller and Tellerico walked about 30 feet 

ahead of the miner as it was trammed. Montoya testified that as he 

turned into the No. 4 entry, he asked Tellerico to check for gas and 

thought Tellerico agreed to do so. 3/ With this alleged understanding, 

the Complainant trammed the miner i-;;-to the last open crosscut. George 

Tiller, who was not a party to the alleged "understanding", saw the 

miner pass the last open crosscut without the necessary gas check and 

ordered the Complainant to turn off the miner. He threatened to issue a 

written reprimand for his failure to check for methane. A heated exchange ensued, ending only when the Complainant insisted on leaving the 

mine, claiming that he was suffering from a previously fractured thumb 

and a cold. 

Shift Foreman Tiller subsequently issued a written reprimand to 

Montoya for passing the last open crosscut without performing. the required methane test.· According to the uncontradicted evidence, it was 

not out of the ordinary to have done so, and, indeed, Tiller had given a 

written reprimand to his own brother-in-law not long before the incident 

herein for the same type of violation. Moreover, during that same year, 

he had issued some ten to twelve oral reprimands and three written 

reprimands. Virgil Lam, Mine Superintendent, testified without contradiction that he, too, had on past occasions issued reprimands for miners 

failing to make methane gas checks. 

On the next work day, February 16, 1981, the Complainant filed a 

grievance over the threatened reprimand with Grant Howell, the Chairman 

of the mine committee. A meeting was held on the Complainant's grievance a short while later. Present were the Complainant, General Mine 

Foreman Virgil Lam, Shift Foreman George Tiller, President of the union 

local, John Herinson, and the two mine safety committee chairmen, Haycock and Denny. According to Howell, Montoya initially claimed that he 

had not trammed the miner beyond the last open crosscut but finally 

admitted that he indeed committed the violation and deserved a reprimand. The grievance was dismissed and no appeal was taken. 

3/ Tellerico testified that Montoya did indeed ask him to perform the 

methane test, but he told Montoya to do it himself. Particularly in 

light of the credible testimony (discussed infra) that Montoya had 

admitt€d at his grievance meeting that he in fact did tram the miner 

beyond the last open crosscut without the required tests, I cannot 

believe his contrary testimony at this hearing. 
6 

John Herinson, the local union president, recalled, based on notes 

taken at the meeting, that Montoya at first .insisted that he had not 

passed the last open crosscut but, after looking at the mine map, admitted the violation and agreed that he deserved a reprimand. Herinson 

also thought the reprimand was appropriate because the violation endangered the safety of all miners. Particularly because of Herinson's 

position as union president and the fact that he availed himself of 

notes taken at the grievance meeting, I accord his testimony great 

weight. 

Evidence that Complainant's work refusal and safety complaints were 

made in the presence of Shift Foreman George Tiller, that Mr. Tiller was 

admittedly "irritated" and "angered" by the fact that miners were idled 

as a result of this work refusal and the brief time lapse between the 

work refusal/safety complaint and the events triggering the reprimand is 

indeed suggestive that the reprimand may have been issued at least in 

part because of the protected activities. From this evidence, it could 

be inferred that the reprimand to Mr. Montoya was at least partially 

motivated by his protected activities. 

Even assuming, however, that Montoya had therefore established a 

prima facie case under Pasula, that would not be the end of the mat_ter. 

The Commission also stated in Fasula that the employer may affirmatively 

defend against such a case by proving by a preponderance of all the 

evidence that, although part of its motivation was unlawful, (1) it was 

also motivate.a by the miner's unprotected activities, and (2) it would 

have taken adverse action against the miner in any event for the unprotected activities alone. 2 FMSHRC at 2799-2800. 

I have already found that the credible evidence supports the conclusion that Mr. Montoya did in fact tram the miner past the last open 

crosscut without performing the necessary methane tests (fn. 3 supra.). 

Based on the credible testimony of Union President Herinson, I also find 

that this constituted a serious violation, endangering the safety of all 

the miners. Finally, based on the undisputed testimony of Shift Foreman 

George Tiller and Mine Superintendent Virgil Lam, I conclude that the 

issuance of a written reprimand under these circumstances was not out of 

the ordinary and clearly not disproportionate or discriminatory. Both 

of these officials had previously issued reprimands to miners for failing to make methane gas checks and indeed Tiller had given his own 

brother-in-law a written reprimand for just such a violation only a 

short time before Montoya's. 

In conclusion, I find that even assuming Valley Camp's agent, 

George Tiller, had a "mixed motivation" in issuing a written reprimand 

against Mr. Montoya, there were credible "business justifications" for 

635 
7 

the reprimand exclusive of any protected activities and I find that he 

would have issued that reprimand in any event for Mr. Montoya's unprotected activities alone. Pasula, supra. Since the reprimand itself was 

not unlawful, Mr. Montoya's resignation or "const uctive discharge" 

because of that reprimand was likewise not unlaw 1. Accordingly, the 

Complaint herein is denied and this case is dism sed. 

Gar 

Distribution: By certified mail. 

John L. Lewis, Esq. and Thomas Cerruti, Esq., Jones, Waldo, Holbrook & 

McDonough, 800 Walker Building, Salt Lake City, UT 84111 

John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, 50 South 

Main, Suite 1600, Salt Lake City, UT 84144 

636 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

APR 5 lsti 

HEALTH ADMINISTRATION (MSHA), ) CIVIL PENALTY PROCEEDINGS 

) 

Petitioner, ) DOCKET NO. 

) 

v. ) 

) 

N. A. DEGERSTROM, INCORPORATED, ) 

) 

) 

Respondent. ) 

) 

Appearances: 

Ernest Scott, Jr., Esq., Office of Daniel W. Teehan 

Regional Solicitor, United States Department of Labor 

Seattle, Washington 98174 

For the Petitioner 

James A. Fish, Esq. 

Winston and Cashatt 

Spokane, Washington 99201 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

WEST 79-14-M 

WEST 79-331-M 

WEST 79-362-M 

WEST 79-363-M 

The Secretary of Labor, on behalf of the Mine Safety and Health 

Administration, (MSHA), charges respondent, N.A. Degerstrom, Incorporated, 

(Degerstrom), with violating safety and health regulations promulgated 

under the Federal Mine Safety and Health Act, 30 U.S.C. 801 ~~· 

After notice to the parties a hearing was held in Spokane, Washington 

on January 30, 1980. At the conclusion of the hearing the Secretary moved 

for a continuance in order to conduct a feasiblity study of respondent's 

equipment involved in the citations. Respondent consented to the motion 

and the hearing was adjourned (Tr. 134, 135, 215, 216). On September 23, 

1981, the hearing was resumed and concluded. ·· 

The parties filed post trial briefs. 

Issues 

The principal issues involve the construction of the noise exposure 

regulation. Such issues may be resolved by several cases now pending on 

review before the Commission. These include: Callahan Industries, Inc., 

York 79-99-M and Todilto Exploration Co., CENT 79-91-RM. 
Surmnary of the Decision 

-~ Three of these four consolidated cases involve alleged violations of 

~he excessive noise standard. The principal fact issues are in WEST 

79-362-M. Accordingly, that case will be initially reviewed. 

The succeeding noise case, WEST 79-14-M, is relatively less complex. 

WEST 79-331-M ultimately was settled at the second hearing •. 

The fourth case, WEST 79-363-M, involves two alleged violations of the 

fire extinguisher regulation. 

The resolution of the several credibility issues in the cases is 

apparent in the context of the decision. 

Stipulation in all Cases 

The parties stipulated as follows: respondent, a corporation, operated 

State Pit G-T-175, Theatre Pit, and State Pit PWS-48 as an operator. 

Further, the operation of these pits involves materials, products, or goods 

brought to respondent from points outside of the State of Washington. 

In addition the parties agreed that dosimeters used by the MSRA 

inspectors were properly calibrated and when operated properly they give 

accurate readings of noise levels. 

Further, respondent's income averaged seven or eight million dollars a 

year for the four years before the hearing; further, respondent has 

employed, on the average, 120 employees (Tr. 6-7). 

If respondent pays the proposed penalties it will not have the effect 

of putting the company out of business (Tr. 8). 

Respondent has shown good faith by doing what it could do to achieve 

compliance by the proposed abatement date (Tr. 8). 

WEST 79-362-M 

In this case the Secretary issued his citations numbered 346416, 

346417, and 346418 under Section 104(a) of the Act. He alleges Degerstrom 

violated 30 C.F.R. 56.5-50(b), in that it permitted its Terex bulldozer 

operator, its primary crusher operator, and its plant oiler to be exposed 

to excessive concentrations of noise. 

The cited section, in Title 30, Code of Federal Regulations, Section 

56.5-50 provides as follows: 

56.5-50 Mandatory. (a) No employee shall be permitted an 

exposure to noise in excess of that specified in the table 
below.· Noise level measurements shall be made using a sound 

level meter meeting specifications for type 2 meters contained 

in American National Standards Institute (ANSI) Standard Sl.4-

1971, "General Purpose Sound Level Meters," approved April 27, 

1971, which is hereby incorporated by reference and made a 

part hereof, or by a dosimeter with similar accuracy. This 

publication may be obtained from the American National 

Standards Institute, Inc., 1430 Broadway, New York, New York 

10018, or may be examined in any Metal and Nonmetal Mine 

Safety and Health District or Subdistrict Office of the Mine 

Safety and Health Administration. 

PERMISSIBLE NOISE EXPOSURES 

Duration per day hours of exposure 

8 ............................ . 

6 ............................ . 

4 ............................ . 

3 ............•............•... 

2 ............................ . 

1 I I 2 ........................ . 

1 •.•....•...............•..... 

1I2 .......................... . 

1/4 or less ••••••••••••••••••• 

Sound level dBA, 

slow response 

90 

92 

95 

97 

100 

102 

105 

110 

115 

No exposure shall exceed 115 dBA. Impact or impulsive noises 

shall not exceed 140 dB, peak sound pressure level. 

NOTE: When the daily noise exposure is composed of two or more 

periods of noise exposure at different levels, their combined 

effect shall be considered rather than the in·dividual effect of 

each. 

If the sum 

(Cl/Tl)+(C2/T2)+ ••• (Cn/Tn) 

exceeds unity, then the mixed exposure shall be considered to 

exceed the permissible exposure. C

0 indicates the total time of 

exposure at a specified noise level, and T indicates the 

total time of exposure permitted at that l~vel, Interpolation 

between tabulated values may be determined by the following 

formula: 

Log T=6.322 - 0.0602 SL 

Where T is the time in hours and SL is the sound level in dBA. 

639 
(b) When employees' exposure exceeds that listed in the above 

table, feasible administrative or engineering controls shall be 

utilized. If such controls fail to reduce exposure to within 

permissible levels, personal protection equipment shall be provided and used to reduce sound levels to within the levels of 

the table. 

Petitioner's Evidence 

Citation 346416 

Terex Bulldozer Operator 

On July 13, 1978 Elvin Fischer, an MSHA inspector experienced in 

mining, inspected Degerstrom at State Pit PSW 48. This was a small normal 

crusher operation employing 23 men working two shifts. He conducted his 

noise test by placing a DuPont dosimeter on the operator of the Terex 

bulldozer for eight hours and twenty minutes (Tr. 59-63, 76). The diesel 

dozer, the second largest available, is similar to the Caterpillar D-8 

bulldozer (Tr. 62, 63). The principal noise sources on the Terex are: 

The engines, the tracks, the transmissions, and the transfer case (Tr. 63). 

At the time of the inspection the dozer was backing downhill into a pit, 

picking up material, and then pushing it uphill into the hoppe~ (Tr. 63). 

The calibrations of the dosimeter are checked periodically at the MSHA 

Lab. Driscoll (superintendent) was present when the inspector removed the 

readout from the dosimeter. The readout, which is in digital form, indicated the noise exposure was 1152 percent of the permissible limits. 

This exposure translates to 108 dBA (Tr. 64). According to MSHA's 

regulation the permissible limit here would be 90 dBA (Tr. 64). Only the 

dozer operator was in the immediate vicinity. The MSHA inspector didn't 

see any administrative or engineering controls being used (Tr. 65). 

The inspector also accompanied the dozer operator on several round 

trips and took readings with a sound level meter. Such a device gives an 

instant reading in dBA rather than measuring in percentages of exposure. 

The inspector during the trips with the dozer operator held the sound level 

meter near the operator's ear (Tr. 58-60, 68, 69). Both the sound level 

meter and the dosimeter meet the specifications required by 30 C.F.R. 

56.5-50 (Tr. 71). 

On the Terex dozer Inspector Fischer expected to see some acoustical 

equipment or sound barriers around the operator. But he couldn't say what 

the effect of controls would be unless he measured the noise level with a 

dosimeter (Tr. 77-78). 

Citation 346417 

Primary Crusher Operator 

The inspector placed the dosimeter on the crusher operator. At the 

time of the inspection large rocks one and a half to two feet in diameter 

640 
were being crushed (Tr. 66, 67). The noise exposure readout was 478 

pe:-cent. This ·translates to 101 dBA. The crusher operator was tested for 

8 hours and 25 minutes (Tr. 69, 92). The maximum exposure listed in the 

regulation is 90 dBA (Tr. 69-70). The crusher operator could not retreat 

into a booth or enclosure (Tr. 70). 

Citation 346418 

Plant Oiler 

The plant oiler for Degerstrom also serves as the cleanup man. He 

removes the spillage from the conveyor belts. He oils and greases the 

machinery during '"down time" (Tr. 72). 

The dosimeter indicated the oiler was exposed at 313 percent of the 

permissible noise limit. This exposure translates to 98 dBA. The testing 

equipment was on the oiler for eight hours and ten minutes. Under the 

regulation 90 dBA is a permissible limit (Tr. 72, 73). 

At the closing conference Hubner, the company engineer, indicated to 

the inspector that he was aware of the overexposure to the noise (Tr. 

73-74). But he thought that the use of personal protective equipment was 

adequate (Tr. 74). No one indicated administrative or engineering controls 

were being used (Tr. 74). 

All of the workers tested by Inspector Fischer were wearing personal 

protective equipment consisting of ear muffs or ear plugs (Tr. 80). 

Witness Fisher writes a citation if there is exposure over the TLV 

[threshold limit value] (Tr. 86). 

MSHA'S Evidence Concerning Feasibility 

MSHA's health specialist Kenneth High testified that noise reduction 

controls for the bulldozer include: an improved muffler, extending the 

exhaust pipe, lining the ROPS and treating the firewall with acoustical 

material. In addition, a windshield or sound barrier around the operator 

could reduce the noise level, as could floor mats extended over the fenders 

(Tr. 108-109). Portable sound barriers are commercially available (Tr. 

109). It would probably cost $700 to $2,500 to install partial barriers. 

A D-10 cab costs $5,000 to $27,000 (Tr. 110). A cab will have the effect 

of reducing the noise level to within permissible limits, and it will also 

attenuate the dust (Tr. 111). In High's opinion 75 percent of all dozers 

can reach compliance (Tr. 111). 

Reductions of 5 to 14 dBA and 8 to 12 dBA can be accomplished by 

installing various engineering controls on dozers. The net reduction 

641 
depends on many factors, including the workmanship of the installation (Tr. 

130-132). The cost of dozer modifications in some instances runs as low as 

$700 to $1,400. However, Inspector High could not state if his suggestions 

would bring the dozers into compliance. He would have to verify the 

results (Tr. 133). 

In the opinion of witness Fischer his recommended treatment of the 

engine transmission would cost $180 to $200 (Tr. 271). He also states that 

the extension of the muffler, the changes to the engine transmission and 

the recommended change in the cooling fan would not bring the dozer within 

permissible limits (Tr. 271, 272). On dozers MSHA gets an average reduction of around 4 decibels, plus or minus one decibel (Tr. 272). It is 

feasible if such a reduction can be attained even though the changes do not 

bring the equipment within the 90 dBA range for eight hours (Tr. 272). 

On June 10-12, 1980, John Rabius, an MSHA industrial hygienist 

experienced in his field, conducted a noise survey at the Degerstrom site 

(Tr. 232-235, 237). If MSHA has the materials available and the company 

has the time and the equipment MSHA will work on the noise sources to 

devise controls (Tr. 236). 

In witness Rabius's opinion an expenditure of $1,000 could reduce a 

bulldozer noise level four or five decibels (Tr. 273-274). During 

tramming, the normal operating mode of the dozer, witness Rabius believed 

they could obtain a four or five decibel reduction (Tr. 277). MSHA didn't 

test any of its controls here. But MSHA offered to do so and Degerstrom 

seemed receptive (Tr. 275). 

Administrative controls, according to Rabius, are unsatisfactory. 

This is because of occupations, unions, difficulty of administering, worker 

resistance, and having to hire two employees for one job (Tr. 272-273). 

The purpose of the MSHA survey of the Degerstrom equipment was to 

develop a feasibility study for the purpose of establishing noise controls 

for the following job classifications: Terex dozer operator, primary 

crusher operator, and the plant oiler (P 11). 

The MSHA officials measured and graphed the noise level with their 

equipment. Extensive measurements were taken at the Degerstrom site (P 

11). 

The study consists of measurements taken, charts, tables, graphs, and 

tape segments (Tr. 240-242). The noise exposures at various work areas 

were calculated and programmed into a computer. A statistical summary was 

also prepared (Tr. 242-247, Pll). 

Concerning the dozer operator: the recording microphone was placed in 

various locations on the dozer and the noise level was measured while the 

dozer was operating at high idle and tramming (P 11 at 3). 

642 
A calculation, called a Leq, is the equivalent noise level in dBA 

(P 11 at 3). Octave band spectra from the graphs form the basis to 

determine the major sources of noise (p 11 at 3). 

The dominate noise source of the bulldozer, in addition to the fan 

behind the operator, is caused by the squealing brakes of the bulldozer 

(Pll at 3). As a result of its study MSHA reached certain conclusions as 

to the job classifications. These conclusions follow. 

Terex Dozer Operator 

An effective approach to noise control begins by isolating and 

controlling the primary noise sources before progressing on to the lesser 

sources. Figures 8 through 13 [in Pll] show the spectral signatures of 

various components of the dozer during tram and high idle testing. As 

discussed earlier, there appear to be two major noise sources - the engine 

cooling fan and the motor. The following steps, followed in the given 

order, will provide significant reduction to the operator. 

1) Cooling fan - a shroud should be constructed for the cooling fan 

located behind the ~perator. The shroud must accomplish two things: it 

must be of sufficient size and mass (i.e. 1/4 inch steel plate) to deflect 

the fan noise away from the operator and it must be open enough to allow 

for adequate engine cooling. 

2) Tracks - The operator view of the tracks should be blocked 1; 

by the use of small steel panels placed at the supports. The exactlocation, dimensions and configuration of the barrier panels must be determined by trial and error analysis. Noise reduction efficiency, 

fastening, and operator view are all of critical importance. The treatment 

of the crawler tracks recommended by MSHA has not been done elsewhere (Tr. 

270). 

3) Muffler exhaust stack - Figure 4d [in Pll] shows the operator's 

view of the exhaust. This stack should be extended approximately 18 inches 

so that the opening will be well above the level of the canopy. Thus, the 

canopy will act as a barrier against this source. 

1/ See discussion of this portion of the report, infra, page 22. 

643 
4) Transmission/Engine - Considerable noise is radiating from the 

floor and firewall, necessitating the need for a great deal of mass in 

these areas for control. Conveyor belting, containing both mass and 

flexibility should be used to cover as much of the floor as possible and 

continued up the firewall under the instrument panel. A layer of 

barrier-foam material should then be placed over the belting and then the 

entire treatment covered with a skid-abrasion resistant pad. 

In addition, the engine side of the firewall should be treated with a 

fiberglass-barrier material with a heat resistant facing. This will reduce 

the engine/mechanical noise coming through the instrument panel and 

firewall. 

At this point in its report MSHA lists 12 manufacturers of barrier 

type equipment. 

The MSHA report relating to the dozer continues to the effect that the 

remaining four recommendations constitute treating the somewhat lesser 

noise sources. However, their importance should not be neglected since, if 

untreated, these "minor" sources can short-circuit the cure. The 

recommendations follow: • 

5) Hang a section of belting from the left side of the engine cowling 

near the firewall. This will refract the mechanical engine noise in a 

wider pattern, away from the operator. 

6) Lift up the operator chair and cover the transmission with belting 

or any other material with significant mass. A foam will not work. 

7) Cover all holes around gear levers with rubber boots or stuff them 

with belting. 

8) Line the inside of the canopy with a foam material to prevent reverberation. Since the canopy is also acting as a shield for the exhaust 

noise, a barrier material might provide even better results. Manufacturers of these materials are listed. 

These steps should provide significant reduction. When they are complete, 

additional work may be needed for the air intake and the Jimmy Blower. 

However, at this stage, these sources were masked by the others. 

(Exhibit Pll at 6-8). 

Primary Crusher Operator 

Concerning the primary crusher operator (feederman): after the 

citations were issued and before the feasibility study in June 1980 

Degerstrom constructed a booth for the operator. Noise levels were 
measured in the booth under varying perimeters (P 11 at 1, 2). A partial 

history of the operator's time inside and outside the booth was calculated. 

The operator's duties divide his activities and he is in and out of the 

booth at various times. In a three hour and 43 minute period the operator 

was exposed to a 89.9% noise exposure. This translates to an eight hour 

exposure of 193% (P 11 at 2). 

Witness High indicated that the noise exposure to the primary crusher 

operator can be reduced by building a control booth for the operator (Tr. 

97, 98). Control booths are commercially available and 75 percent of all 

crushing operations use such booths (Tr. 99). A 4 x 4 booth costs $2,745. 

A plywood enclosure costs between $500 and $1,200, up to $2,000 (Tr. 100, 

101). The use of a booth will reduce the operator's exposure 20 dBA to 

within permissible limits (Tr. 100, 101). 

Concerning the crusher itself: MSHA suggests that the feed hoppers of 

the discharge chute, the catch basins, and screens be lined with rubber. 

Expensive impact resistant rubber is commercially available but an operator 

could use old conveyor beltings (Tr. 101-103). 

In MSHA's view hearing protection is not an administrative or 

engineering control because it is only a temporary remedy (Tr. 105, 106). 

Administrative controls would include staggering work shifts and rotating 

workers out of high exposure areas (Tr. 98). 

Witness High has, in his experience, seen the noise exposure on some 

crushers reduced from 139 dBA to 90 dBA (Tr. 125-126). 

MSHA's feasibility study at the Degerstrom site caused the Secretary 

to reach certain conclusions concerning the crusher operator. These were 

as follows: 

An immobile steel panel with a glass viewing window placed between the 

jaw crusher and operator will offer a more constant noise reduction 

compared to a door that is constantly opening and closing. Such a panel 

already exists in the booth opposite the existing access door and it would 

be in the proper position if the booth were relocated to the opposite side 

of the crusher. 

The following recommendations will further reduce the noise exposure 

to the operator: 

Relocate the booth from its present location to the opposite side of the 

crusher. 

645 
Rehinge front door so when it is open, it still blocks out the crusher 

noise. 

While the access door can be left open for ventilation, a safer design 

would be to seal it shut and use an adjustable window. 

Cover all holes and leaks with belting; cover the floor with belting and a 

skid resistant cover. 

Plant Oiler 

The plant oiler is the most difficult of all to protect (Tr. 122-123). 

A history of the operator's time in some 15 tasks was calculated. The 

oiler received an exposure of 29.8% from 12:30 p.m. to 2:30 p.m. This 

translates to an eight hour exposure of 119 percent which is in compliance 

(Pll at 4). The MSHA report indicates that 11 a better candidate for [noise] 

control would be while the oiler is at CP2 (this is one of his tasks where 

he spent eighteen minutes and the additional task is while he is relieving 

the primary crusher operator) (Pll at 4). Between 6:15 a.m. and 2:30 p.m. 

the oiler's time and exposure was calculated at 78 different locations 

(Pll at Table 4). 

Concerning the plant oiler the Secretary reached the following 

conclusions: 

This worker will automatically get noise reductions by suggested 

modifications to the crusher booth where he spends about 30 minutes each 

day in levels of 92-98 dBA with the door opened. In addition, since he was 

already in compliance, at least on the day of the feasibility study, any 

reconunendations might be academic. Finally, since the plant does not have 

the same orientation each time, severe constraints are put on any 

recommendations. Nonetheless, the following steps will reduce the noise 

exposure to the oiler: (Pll). 

Require skirts on all the belts. 

off of the belt and thereby reduce the 

proximity to excessive noise (Tr. 266, 

Skirts keep material from falling 

time the oiler spends in close 

267). 

Locate or orientate the M-30 trailer or any similar vehicle away from 

the plant so that the levels at the entrance way are well below 90 dBA 

(Pll). 

Place sound screens made of belting or plywood in front of the CP-2 

generator or any similar generator (on the day of the study at this 

particular plant the oiler received 18 percentage points from this source) 

(Pll). 

Place one or two sound screens made of belting or plywood in strategic 

locations to make a quiet area for conversations with the foreman (Pll). 

64G 
The summary in MSHA's report concludes as follows: 

A study was conducted to determine feasible noise controls for the 

crusher operator, plant oiler, and dozer operator at a Degerstrom portable 

crushing operation. Controls exist which will reduce the noise exposure of 

these three operations. If desired, DTSC [Denver Technical Support Center] 

can work with the company in the fabrication, installation and evaluation 

of these controls. 

Respondent's Evidence 

Eugene Friend, Degerstrom's safety director since 1972, is a person 

experienced in safety (Tr. 138-140). The company crushes round river rock 

varying in size from 3/4 of an inch to 10 inches in diameter (Tr. 298). In 

the basalt pit the diameters of the rocks vary from 2 1/2 inches to 18 

inches (Tr. 298). The greatest noise intensity is generated by large round 

rocks from river beds and by basalt rocks (Tr. 299). 

Friend took noise level readings on the Terex C6 and Caterpillar D-8. 

He found the equipment was ~ot within permissible limits (Tr. 140, 141). 

Degerstrom educates its workers and insists they wear personal hearing 

protection such as ear plugs or ear muffs (Tr. 141, 142). 

Since 1972 Degerstrom has observed and measured the sound levels of 

its various pieces of equipment, and educated its employees (Rl, R2). 

Friend has inquired about sound suppression devices (without much 

success from industry or MSHA) and since 1979 Degerstrom has, at varying 

costs, sound proofed some 36 pieces of equipment (Tr. 145, 149-150, 160, 

182-183, R2). The total cost of such sound proofing was $21,034 (R2). The 

costs of Degerstrom's efforts averaged $600 to $800 per dozer (Tr. 160). 

After installing its engineering controls over the years Degerstrom still 

continues to monitor noise readings in the 90's on the dBA scale (Tr. 

166). 

Concerning the hearing protection devices themselves: Friend relies on 

the manufacturer's information to determine their effectiveness (Tr. 147). 

But he didn't take noise readings under the ear muffs. His knowledge of 

the effectiveness of this equipment is limited to the manufacturer's claims 

(Tr. 175, 176). 

Friend, in his search for compliance, also contacted the local Terex 

and Caterpillar dealers since he felt there was nothing available on an 

engineering basis except hearing protection (Tr. 145, 146). 

Friend was advised by Terex and Caterpillar dealers that the cost of a 

full cab on a new Caterpillar is $10,000 to $14,000 (Tr. 151-152). 
After receiving the citations in this case and without adding on cabs, 

Degerstrom installed new mufflers. These presented back pressure problems 

and reduced the effectiveness of the machines. Further, the company lined 

the roll over protective cabs with a one inch sou~d foam and installed a 

teflon-lead impregnated mat (Tr. 153, 154, 186, 187). They also built a 

windshield screen. But they felt the screen was a greater hazard since it 

reduced visibility (Tr. 154-155). Degerstrom was able to reduce the noise 

level three decibels on the Terex (106 reduced to 102) and four on the 

Caterpillar (104 but not below 100). But they are still not within 

permissible limits (Tr. 156, 157, 177-178). 

Witness Friend agrees that extending the muffler stack will lower the 

decibel rating and Degerstrom has made those changes (Tr. 286). The 

installation of belting over the transmission can cause heat problems. The 

equipment, when at maximum output, approaches its heat capacity (Tr. 287, 

288). Before the citations were issued Degerstrom installed sound mats on 

the tractor floor boards and lining on the inside of the canopy. This was 

fairly successful [in reducing the noise] (Tr. 287-289). 

Degerstrom does not know how to avoid the citations. In Friend's 

opinion the personal protective equipment such as ear plugs and ear muffs 

provide adequate protection (Tr. 166-168). 

Friend indicates that the proposed partial barrier and fenders for the 

dozers obstructed the operator's vision. They had experimented with a 

partial barrier (Tr. 168, 169, 284). Friend's operators also object to a 

fully enclosed c~ because it would obstruct the operator's vision and 

constitute a safety hazard (Tr. 169-171). Before the MSHA study 

Degerstrom put a deflector on the top of the Terex radiator. This cost $70 

and only lowered the noise level one dBA (Tr. 282, 284). 

Concerning the noise from the primary crusher: Degerstrom built a 

small booth for the feederman. They also bought the best muffler available 

and generally tried to quiet the plant (Tr. 157, 279). The crusher 

operator's activities require him to be in and out of the booth. His outside activities depend on how the rock is being crushed (Tr. 158). 

Degerstrom found that its booth did not materially reduce the noise levels 

(Tr. 159). The booth, after it was rebuilt, lowered the noise level 2 dBA 

(Tr. 279). The company is unable to predict how much time the crusher 

operator will spend outside of the booth (Tr. 280). 

Degerstrom considers it more expensive to put engineering controls on 

its portable equipment as compared to permanent equipment. If the 

equipment is portable the company must consider how it can be moved and 

whether it remains practical to move it on the highway. (Tr. 164, 165, 

176). Each engineering control gives rise to other problems (Tr. 165). 

There are also problems involved in moving the booth for the feederman (Tr. 

176-178). 

648 
The company previously requested but did not receive any technical 

assistance from MSHA (Tr. 165) •. Degerstrom does not know what is 

technologically or economically feasible to abate the citations (Tr. 167). 

The company did not seek technical assistance "from the outside" (Tr. 172). 

But there is better technical assistance available now since this law went 

into effect (Tr. 173). 

The company does not have the manpower to rotate its workers. In 

addition, while it has not, the union might object (Tr. 162, 174). Before 

the issuance of the citations no administrative controls were used to 

reduce noise levels (Tr. 174). Degerstrom considers hearing protection to 

be an administrative control (Tr. 174-175). Degerstrom now uses a lighter 

ear muff with greater attentuation (Tr. 189). 

Workers wear personal protective equipment at all times (Tr. 191). 

George Berglund and H.J. Breredon, distributors of Caterpillar and Terex, 

were contacted by Degerstrom about problems with the equipment (Tr. 194, 

195, 205). The Caterpillar noise abatement solution requires isolation of 

the operator and then suppression of the noise from his environment (Tr. 

207). The Caterpillar controls must be redesigned (Tr. 208-209). This 

involves enormous problems. The cost would be approximate $25,000. At the 

time of the hearing a D-8 (Caterpillar) cost just under $200,000 (Tr. 208, 

209). The price for a sound suppression canopy is $10,850 (Tr. 209-210). 

The Caterpillar representative has no knowledge of MSHA's claim that 

compliance can be achieved for $700 to 1400. The best information from 

Caterpillar, and all such crawler tractor manufacturers, confirms that old 

machines cannot be brought into compliance (Tr. 210, 211). Bower 

Machinery, witness Berglund's Company, would not attempt to bring a 5 year 

or older D-8 into compliance (Tr. 212). Nor would Caterpillar (Tr. 212). 

Caterpillar does not install partial barriers on old machines (Tr. 213). 

But Caterpillar will guarantee a 90 decibel rating on a new machine (Tr. 

213). 

In the opinion of witness Breredon, (the branch manager of Evans 

Eugene Equipment Company and the Terex distributor) it would cost $15,000 

to $20,000 to change the equipment. But neither he nor the Terex engineers 

could guarantee that the dozer would comply with MSHA standards (Tr. 197, 

198). Breredon has not installed cabs on any old tractors (Tr. 199). And 

they have never brought a track type dozer into compliance (Tr. 295). 

Terex, a division of General Motors, is making extensive changes to 

reduce the noise levels on its new dozers (Tr. 199, 200). A new dozer 

costs $179,000 and incorporating noise suppression device!?. would add an 

additional 15 to 20 percent to that cost (Tr. 200). 

649 
At the time of the hearing the trade in value on a C-6 would be 

approximately.$15,000 to $20,000 (Tr. 202-203). According to Breredon, 

even though someone requested it, a C6 it could not be brought into 

compliance. He didn't know to what extent the noise exposure could be 

reduced (Tr. 200, 201). 

In addition to the testimony of its witnesses, Degerstrom also 

submitted a written rebuttal to MSHA's feasibility study. "Inasmuch as 

MSHA's report was in the main incorporated here (Pll), I deem it necessary 

to restate the Degerstrom written report (RJ). Its rebuttal basically 

provides as follows: 

Degerstrom understood that the request for an extension of time on the 

hearing was for a feasibility study which would in fact establish the 

amount of monies necessary to guarantee the noise levels to meet the 

regulatory requirements. As far as the survey is concerned Degerstrom can 

see very little has been done toward that end. 

Dozer Operator 

The cooling fan shroud recommended in the MSHA report was installed 

some time before this survey on one of the company's other machines (Terex 

C-6 dozer) with a design they felt would help. However it only lowered the 

noise level at the operators ear level 1 dBA. Not significant in the 

company's estimation. 

Blocking the view of the tracks of the machine for noise suppression 

met with vigorous objections from the operators. And the company feels 

they are adding a much more serious hazard to the safe operation of the 

machine than we are accomplishing in noise suppression. 

The extension of the exhaust muffler stack was installed on almost all 

the dozers for more than a year before the survey. This particular machine 

just happened not to have a long extension at the time. The company 

concurs that a proper exhaust stack lowers the noise approximately 2 to 3 

dBA at the operator's station. 

The procedures for treating the transmission/engine outlined by MSHA 

(in paragraph 4) were accomplished on the company machines sometime before 

this survey was made. Degerstrom found this procedure lowered noise levels 

about 2 dBA on a typical machine. 

The company contemplated noise barrier of fiberglass with heat 

resistant facing on its dozers earlier, but felt the small area of the 

engine fire-wall would allow only a very insignificant noise reductions. 

Less than 1 dBA. 

600 
The suggestion to hang belting from the left side of the engine 

cowling would amount to very insignificant changes in noise level, less 

than 1 dBA. Covering the transmission with any belting or other material 

cannot be used on this dozer. This is a critical heat problem with automatic transmissions, and this suggestion would add to that problem so it is 

unacceptable. 

The closing of as many holes on the deck as possible would help with 

noise suppression, but in this case the company feels it would amount to 

less than 1/10 of a decibel. This application would be very insignificant, 

The suggestion that the canopy be lined with foam has been applied to 

all company dozers, and had some.effect on noise suppression. Degerstrom 

concurs that it is probably the most effective control for ROPS cabs on 

dozers. That is why all Degerstrom dozers have such foam. 

As far as a barrier material suggestion is concerned, the company 

experimented with it. Sound foam was much less effective than foam. 

(Exhibit R3) 

Primary Crusher Operator 

Concerning this job classification Degerstrom's rebuttal of the MSHA 

report states: 

Relocation of the booth as suggested would involve considerable 

expense. Degerstrom estimates the cost at approximately $600 in time, 

materials, and labor. They have no way of knowing what the noise levels 

will be at that station without doing the work. Degerstrom feels that it 

would not reduce it more than 3 to 4 dBA (Exhibit R3). 

Rehinging of the front door has already been done along with window 

modifications and with the booth in its present pos1t1on. The company 

reduced the noise level approximately 2 dBA with the door open with these 

adjustments (R3). 

Regarding the booth changes: Degerstrom does not understand how the 

design would be safer by sealing the door shut and using an adjustable 

window as stated by MSHA (R3). 

Present booth design has special sound proof matting as a floor cover 

with holes in the floor sealed. The company made this design in its 

original construction and were only waiting for suppliers to furnish the 

matting at the time of this survey. 

(Exhibit R3) 

651 
Plant Oiler 

Concerning this job classification: 

Degerstrom's witness Friend states that the dosage to the plant oiler 

depends on where he wanders in his duties (Tr. 289). On the day of the 

feasibility study he was within the permissible limits (Tr. 289). Witness 

Friend states that MSHA's report suggests skirts for the conveyor. The 

company has skirts at the belt intersections (Tr. 290). 

Degerstrom's written rebuttal also addresses the plant oil job 

classification. It states: 

To locate the trailers away from the plant to any degree will be 

difficult in many of our crusher settings. 

To place sound screens of belting or plywood around the generator adds 

to the heat problem of these units. The company does not feel this is a 

good method to pursue (R3). 

The practicability of building conversation areas in portable crushing 

sites is difficult because of space limitations (R3). 

Discussion 

In noise cases the Secretary contends he meets his burden of proof by 

establishing that the miners were exposed to excessive noise and by then 

offering general evidence as to the type of administrative or engineering 

controls the operator might use (Brief at 5, 6). The Secretary contends 

that the burden then shifts to an operator to establish that compliance is 

not feasible under the conditions unique to the operator's mine (Brief at 

7). 

The Secretary specifically urges the Commission to reject any test of 

feasibility involving a weighing of costs and benefits (Brief at 8). 

On the other hand, and directly contrary to the Secretary's position, 

Degerstrom asserts the Secretary must show the cost of controls and he must 

weigh those costs against the amount of noise reduction and health benefits 

(Reply brief at 2). In support of its position Degerstrom cites RMI 

Company v. Secretary of Labor, 594 F. 2d 566 (6th Cir 1979). A review of 

RMI confirms this ruling. However, since RMI the Supreme Court inter652 
preted the word "feasible" in Section 6(b)(S) 2/ of the OSH Act as 

meaning "capabl~ of being done" or "achievable-:-" The Court held that 

Congress intended employee health to outweigh "all other considerations 

save those making the attainment of this 'benefit unachievable." American 

Textile Manufacturers Institute, Inc. v. Donovan 101 S. Ct 2478, 2490 

(1981). In (ATMI) the Court specifically held that "feasible" does not 

require, and indeed precludes, a weighing of costs and benefit, 101 S. Ct. 

at 2491. 

But the law on this point continues in a state of flux. Since ATMI 

United States Court of Appeals for the Ninth Circuit affirmed an Occupational Safety and Health Review Commission (OSHRC) decision that 

applied the cost-benefit test developed originally by OSHRC in its 

Continental Can doctrine. Donovan v. Castle & Cooke Foods, a Div. of 

Castle & Cooke, Inc., 692 F. 2d 641, (9th Cir., Nov 19, 1982). The Ninth 

Circuit considered in Supreme Court's interpretation of the term "feasible" 

to be inapplicable to the noise standard. 

The Ninth Circuit held ATMI inapplicable, in its view, because the 

Supreme Court was deciding a case under the toxic materials section and the 

2/ This portion of the Occupational Safety and Health Act, 29 U.S.C. 

6SS(b)(S), reads as follows: 

(S) The Secretary, in promulgating standards dealing with toxic 

materials or harmful physical agents under this subsection, shall set the 

standard which most adequately assures, to the extent feasible, on the 

basis of the best available evidence, that no employee will suffer material 

impairment of health or functional capacity even if such employee has . 

regular exposure to the hazard dealt with by such standard for the period 

of his working life. Development of standards under this subsection shall 

be based upon research, demonstrations, experiments, and such other 

information as may be appropriate. In addition to the attainment of the 

highest degree of health and safety·protection for the employee, other 

considerations shall be the latest available scientific data in the field, 

the feasibility of the standards, and experience gained under this and 

other health and safety laws. Whenever practicable, the standard promulgated shall be expressed in terms of objective criteria and of the 

performance desired. 

653 
authority for the noise standard arose under Section 6(a) 3; of the 

Occupational Safety and Health Act, 692 F. 2d at 657. 

But to continue: The Occupational Safety and Health Review Connnission, 

whose case had been affirmed by the Ninth Circuit subsequently ruled that 

the term "feasible" in the statute was identical in meaning to its twin in 

the noise standard. The OSHRC held that when Congress authorized the 

Secretary to adopt established federal standards and national concensus 

standards as occupational safety and health standards, it understood the 

Walsh-Healey standards would be the primary source of established federal 

standards for covered workplace hazards. 

OSHRC, in its later decision, indicated that several of these 

standards, like the noise standard, regulated exposure to "toxic materials" 

and "harmful physical agents" and contained feasibility requirements. 

Further, at the same time that Congress authorized the adoption of section 

6(a) standards, it authorized the promulgation of standards dealing with 

toxic materials or harmful physical agents under section 6(b)(5). This 

section contains a feasibility requirement. The OSHRC further ruled there 

was no indication that Congress intended the feasibility requirement of 

existing standards (that the Secretary was authorized to implement 

innnediately) to be measured by a different criterion than feasibility under 

section 6(b)(5). 

In sum, the OSHRC declined to acquiesce in the Ninth Circuit's 

divergent interpretation of the term "feasible." Rather, in a two to one 

decision, they ruled the ATMI interpretation to be applicable to the OSHA 

noise regulation. Sun Shl'P:-Inc., Docket No. 16118 December 17, 1982. In 

overturning its cost benefit doctrine OSHRC abandoned its precedent 

established in 1976 in cases arising with the advent of Continental Can 

Co., 76 OSHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD ~ 21,009 (No. 3973, 

1976) appeal withdrawn, No. 76-3229 (9th Cir. April 26, 1977). 

A sharp parallel exists in this case with the reasoning of the 

majority in Sun Ship, Inc. 

In the 1977 Mine Act the Secretary's statutory authority concerning 

the adoption of standards lies in Section 101 of the Mine Safety Act. The 

pertinent portions of the section provide as follows: 

3/ The cited section, now codified at 29 U.S.C. 655(a), reads as follows: 

(a) Without regard to chapter 5 of title 5, United States Code, or to 

the other subsections of this section, the Secretary shall, as soon as 

practicable during the period beginning with the effective date of this Act 

and ending two years after such date, by rule promulgate as an occupational 

safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of 

such a standard would not result in improved safety or health for 

specifically designated employees. In the event of conflict among any such 

standards, the Secretary shall promulgate the standard which assures the 

greatest protection of the safety or health of the affected employees. 

654 
Sec. 101. (a) The secretary shall by rule in accordance with 

procedures set forth in this section and in accordance with 

section 553 of title 5, United States Code (without regard to 

any reference in such section to sections 556 and 557 of such 

title), develop, promulgate, and revise as may be appropriate, 

improved mandatory health or safety standards for the protection 

of life and prevention of injuries in coal or other mines. 

(6)(A) The Secretary, in promulgating mandatory standards dealing 

with toxic materials or harmful physical agents under this subsection, shall set standards which most adequately assure on the 

basis of the best available evidence that no miner will suffer 

material impairment of health or functional capacity even if 

such miner has regular exposure to the hazards dealt with by such 

standard for the period of his working life. Development of 

mandatory standards under this subsection shall be based upon 

research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment 

of the highest degree of health and safety protection for the 

miner, other consideration shall be the latest available scientific data in the field, the feasibility of the standards, 

and experienc2 gained under this and other health and safety 

laws. Whenever practicable, the mandatory health or safety 

standard promulgated shall be expressed in terms of objective 

criteria and of the performance desired. 

In addition, the 1977 Mine Act contemplates the continued enforcement 

of all of the then existing metal, and nonmetal and coal standards. 

Legislative History of the Federal Mine Safety and Health Act of 1977, 95th 

Congress, 2nd Session, at 374 (July 1978). The noise standard, 30 C.F.R. 

56.5-50, originally appears on July 31, 1969 at 34 FR 12511. 

After carefully reviewing the above cited statutes and cases I 

conclude that a weighing of costs and benefits is not required by the 

Secretary. 

Concerning technoligic feasibility: no one seriously contends that the 

technology is unavailable to achieve compliance. Such ability is apparent 

on the facts relating to the Terex dozer, the primary crusher, and the 

plant oiler. 

Concerning economic feasibility: MSHA's estimates of $700 to $1400 to 

bring the dozers into compliance conflicts with Degerstrom's estimate of 

$25,000 per machine. The person in the business of making the engineering 

changes and charging for that service, will, in my judgment, more closely 

estimate the actual costs involved. Further, I do not credit MSHA's 

evidence on this point because there was no foundational basis to cause me 

to conclude that MSHA's estimates are credible. 

655 
For these reasons I conclude that the cost of noise suppression on the 

Terex bulldozer will be approximately $25,000. However, in view of 

Degerstrom's substantial annual income, as stipulated, I infer that such an 

expenditure does not render the costs economically infeasible. 

I appreciate the difficulty faced by Degerstrom and the suppliers of 

its heavy equipment. As they state there are no doubt "enormous problems" 

with bringing a used vehicle into compliance. However, their knowledge and 

expertise should be enhanced by their recent efforts since at least one 

tractor supplier, Caterpillar, now "guarantees" less than 90 dBA on a new 

vehicle (Tr. 213). 

This appears to be an appropriate place to address the remaining legal 

issues. Degerstrom attacks the Secretary's evidence as being legally insufficient. Degerstrom states that "at no time during the trial did the 

government indicate what engineering or administrative controls were 

feasible" (Brief at 1). "There was much general testimony concerning this 

but no definite answers" (Brief at 1). 

True, there was no credible evidence of feasible administrative 

controls. However, the analysis and recommendations concerning engineering 

controls discussed in the evidence causes me to conclude that the use of 

such controls would cause a substantial reduction in the noise level. In 

this area MSHA's expertise clearly outweighs Degerstrom's contrary 

evidence. I compliment Degerstrom's efforts since 1972 in attempting to 

reduce the noise levels. But I credit MSHA's evidence that further 

substantial reductions can be made. 

Degerstrom attacks MSHA's feasibility study as set forth in the 

testimony of Degerstrom's witnesses and in Exhibit R3. This presents a 

basic credibility confrontation. On this issue I credit MSHA's evidence. 

As a foundational matter MSHA's witnesses clearly outweigh Degerstrom's 

witnesses in expertise and in experience concerning engineering controls. 

On the merits MSHA's evidence is more persuasive. 

Degerstrom asserts its tractors cannot be made to comply without the 

expenditure of approximately $25,000 and the equipment suppliers could not 

guarantee that even with that expenditure the machines would comply (Brief 

at 2-3). We have previously discussed the dollar costs. Concerning the 

second feature the Supreme Court indicated the Congressional mandate of 

feasible means "achievable." Substantial, if not full, compliance appears 

achievable on this record. 

Degerstrom complains that this case was adjourned in order for MSHA to 

conduct at feasibility study and, after a substantial delay, when the cases 

were reconvened the Judge was advised there had been no such study (Brief 

at 3-4). 

656 
I disagree. The purpose of MSHA' s visit was to "develop a feasibility 

study for engineering noise controls" for the plant oiler (313%), primary 

crusher operator (478%), dozer operator (1152%), Euclid C48 operator 

(710%), feederman of crusher.(164%), and front end loader operator (390%). 

Degerstrom may disagree with the weight to be attached to the study but 

that feature is, I trust, encompassed in this decision. I do note that 

both parties to this case have fully cooperated with each other in an 

effort to resolve the excessive noise exposures. True, there was a 

substantial delay between the issuance of the citations and the later 

hearing involving the feasibility study. But Degerstrom was not prejudiced 

by this delay. All of its witnesses were available at the later hearing. 

In addition, abatement was accomplished here when Degerstrom removed its 

equipment from the work sites. (See orders terminating all noise citations) 

Degerstrom has apparently not incurred any expenses in complying with the 

MSHA's citations other than what Degerstrom undertook to do to reduce the 

noise levels. 

Degerstrom declares MSHA must prove that its controls will make this 

equipment conform to the minimum noise levels. In other words, the Terex 

operator (WEST 79-362-M, Citation 346416) is exposed to 108 dBA. If the 

controls can only reduce the level to say, 99 dBA, the case should be 

dismissed since the permissible limit is 90 dBA (Tr. 64). A long line of 

OSHRC cases reject this view. In gontinental Can Company, supra, OSHRC 

construed 29 C.F.R. 1910.9S(b)(l). / OSHRC stated that "the standard 

thus contemplates that there will be some situations where engineering or 

4/ The standard, 29 C.F.R. Sec. 1910.95(b)(l) provides: 

When employees are subjected to sound exceeding those listed in 

Table G-16, feasible administrative or engineering controls shall 

be utilized. If such controls fail to reduce sound levels within 

the levels of Table G-16, personal protective equipment shall be 

provided and used to reduce sound levels within the levels of the 

table. 

Table G-16 - Permissible Noise Exposure 

Duration per day, hours 

8 

6 

4 

3 

2 

1 1/2 

1 

1/2 

1/4 or less 

Sound level dBA slow response 

90 

657 

92 

95 

97 

100 

102 

105 

110 

115 
administrative controls are to be considered feasible even though they fail 

to reduce the noise below G-16 levels. 4 OSHC at 1545. Further, "for 

employees who do not receive the full benefit possible from personal ear 

protectors, any significant reduction in the ambient noise levels provides 

a benefit", 4 OSHC at 1545. OSHRC observed that in determining how great a 

reduction is significant, the logarithmic nature of the decibel scale must 

be considered. 

In Continental Can OSHRC found a reduction of 3 dBA. This represented 

a halving of the air pressure. Accordingly, such a reduction was held to 

be clearly significant. 4 OSHC at 1545, footnote 13. 

Degerstrom also argues that MSHA witness Rabius was extremely damaging 

to the government since he testified that very little could be done to 

reduce the noise levels and hearing protection had to be worn at all times 

and 1n any event (Brief at 4). 

Degerstrom misconstrues the evidence. Witness Rabius (Tr. 232-277) 

testified administrative controls are not feasible since for various 

reasons since they are not generally satisfactory (Tr. 251). The only 

other possible reference to Degerstrom's assertion appears at pages 261-262 

of the transcript. At that point witness Rabius was referring to the noise 

levels outside of the crusher booth. The witness was explaining: "I would 

reconnnend wearing hearing protection anytime there is a noise, as a 

personal thing, but where the levels are less than 90 [dBA], in the 80's, 

it would not be necessary to c!o so, but as soon as he leaves that 

protection [of the booth], then he would definitely have to wear hearing 

protection." (Tr. 262). For wearing hearing protection while operating the 

dozer see the transcript at 272. 

Degerstrom states that its dozer operators will not operate machines 

that have vision barriers above the tracks (Brief at 5). 

This point is uncontroverted. But the tracks are only one of the four 

main noise sources. The MSHA feasibility study treats the vision problem 

as follows: 

Tracks - The operator view of the tracks should 5; be blocked 

by the use of small steel panels placed at the s~pports (Figure 16). 

The exact location, dimensions and configuration of the barrier 

panels must be determined by trial and error analysis. Noise 

reduction efficiency, fastening and operator view are all of 

critical importance. 

(Pll at 7). 

5/ One would believe that the word "not" was omitted in the typing of 

MSHA's report. But the drawing in Figure 16 indicates the operator's view 

would be blocked. In any event the vision problem is not insurmountable. 

658 
Degerstrom's post trial brief further insists that its dozer operators 

will not operate any dozers placing the operators in a totally enclosed cab 

(Brief at 5). 

This is simply not credible. Totally enclosed cabs with ROPS can be 

seen today on virtually any construction site. 

Degerstrom claims that MSHA suggests that the site generator should be 

blanketed or veiled to prevent the dispersion of noise. It is true there 

is such a suggestion in the record and it related to a possible method of 

noise reduction for the plant oiler (Tr. 255, 256). It is only a 

suggestion. Since the plant oiler was found by MSHA to be in compliance I 

decline to rule on that feature of the case. In short, compliance was met 

without a blanket for the generator. There are sufficient issues in this 

case without delving into a problem that is purely hypothetical. 

Degerstrom's brief further states that MSHA has no standards 

whatsoever to guide an operator as to what is, or is not, feasible (Brief 

at 5-6). I take Degerstrom's argument to be a vagueness attack on the 

regulation. Remedial legislation, when considering the purported vagueness 

of a standard, is based not in its face but rather in the light of its 

application to the facts of the case. PBR, Inc. v. Secretary of Labor, 643 

F. 2d 890 897 (1st Cir 1981); McLean Trucking Company v. OSHRC 503 F. 2d 8, 

10-11 (4th Cir 1974). It is axiomatic that defects in the constititional 

sufficiency of a regulatory warning may be cured by authoritative judical 

or administrative interpretations which clarify obscurities or resolve 

ambiguities. Diebold, Inc. v. OSHRC 585 F. 2d at 1338 citing Rose v. 

Locke, 423 U.S. 48, 52 (1975), Parker v. Levy 417 U.S. 733, 752-54. 

IN ATMI, supra, the Supreme Court determined that the term "feasible" 

has an ascertainable meaning based on the statute, 101 S. Ct. at 2490. The 

definition set =orth by the Supreme Court is applicable to the regulation 

at issue. I reject Degerstrom's suggestion that the term is devoid of 

meaning. 

The Secretary argues he needs only show exposure to noise in his cases 

and then the burden shifts to the operator to prove infeasibilty. I reject 

the Secretary's contention: Where the standard makes feasibility an element 

of the violation, the burden of proving that controls are feasible is on 

the Secretary. Carnation Co., v. Secretary of Labor, 641 F. 2d 801, 803 

(9th Cir, 1981); Diversified Indu-stries Division, Independent Stove Co., v. 

OSHRC, 618 F. 2d 30, 32 (8th Cir. 1980). As noted in Carnation Company, 

641 F. 2d 803, realism and common sense should dictate how the Secretary 

may meet his burden of providing substantial evidence of feasibility. 

659 
Further when the Secretary seeks enforcement of a citation alleging a 

violation of the noise standard, he bears an initial burden of showing that 

technologically feasible engineering controls are available to the cited 

employer. 

Although the Secretary will generally have access to information on 

the average development and installation cost of the proposed controls, he 

will not have knowledge of the specific economic impact implementation of 

the controls will have on the cited employer. Therefore, once the 

Secretary meets his initial burden, the burden must shift to the employer, 

who may raise the issue of economic feasibility particularily with the 

knowledge of the operator. Castle and Cooke Foods, supra, 692 F. 2d at 

650. 

For the above reasons I conclude that the citations 1n case WEST 

79-362-M should be affirmed. 

WEST 79-14-M 

In this case the Secretary issued his citations numbered 350839 and 

350840 under Section 104(a) of the Act. He alleges Degerstrom violated 30 

C.F.R. 56.5-50 when its Caterpiller operator and feederman were exposed to 

excessive concentration of noise. 

Petitioner's Evidence 

Citation 350839 

On November 22, 1978 MSHA's representative, Richard Perron, inspected 

Degerstrom's C48 Caterpillar 6/ tractor at its Theater Pit (Tr. 20, 

21, 29). Although he extended an invitation neither Degerstrom management 

nor the miner representative accompanied him on the inspection (Tr. 

21-22). There were seven employees on the site (Tr. 30). 

Perron put a dosimeter on the operator of the Caterpillar, At the 

time the Caterpillar was pushing material into the jaw crusher. No 

administrative controls were being used to reduce the noise level of the 

Caterpillar, although the operator was using ear plugs (Tr. 23). Inspector 

Perron issues a citation if an operator is over exposed (Tr. 43, 44). 

Feasibility and costs are not witness Perron's job. But he is aware if 

some general controls to reduce noise (Tr. SO, 51). 

The dosimeter collects and stores noise levels. At the end of an 

eight hour shift a readout device calculates the noise exposure (Tr. 

23-25). 

6/ The citation and the testimony refers to the "C 48 Cat and D8" (Tr. 

21-22, 31). But the ·feasibility study refers to this equipment as the 

"Euclid C-48" (Pll at 1). I believe Caterpillar and Euclid are separate 

'manufacturers. In any event it does not have to be determined whether the 

vehicle was a Caterpillar or a Euclid because MSHA did not present any 

feasibility evidence as to this particular unit. 

660 
In this work environment the noise exposure was 710 percent of the 

permissible limit. This translates to 104 dBA (Tr. 26). The allowable 

limit, in accordance with 30 C.F.R. S6.S-SO, is 90 dBA for eight hours (Tr. 

26). 

The inspector's dosimeter met specifications and it had been calibrated at the MSHA office (Tr. 26). 

Citation 3S0840 

The inspector observed an employee operating a crusher (Tr. 27, 2Sl). 

A dosimeter was placed on the operator who was standing at the top of the 

primary rock crusher about seven feet from the noise source (Tr. 27-28, 

48). In an eight hour period the dosimeter indicated the operator was 

exposed to noise at 164 percent of the permissible rate. This translates 

to 93 dBA (Tr. 27-28). 

Mr. Gallagher, management representative was aware of the over exposure to noise. Degerstrom had made no effort to reduce the noise. The 

inspector gave the company one month to abate (Tr. 29, 30). 

The workers were wearing some type of personal protection (Tr. 32-33). 

Inspector Perron didn't know if it is possible or feasible to bring the 

machine into compliance and he didn't feel qualified to address the areas 

of engineering controls concerning technological and economic feasibility 

(Tr. 3S, 36). However, he didn't observe any administrative or engineering controls being used (Tr. SS). 

Various contractors, including Degerstrom, crush rock at this pit for 

their individual use in highway construction work (Tr. S2, S3). 

Evidence from MSHA Feasibility Study 

The Euclid C-48 operator and the feederman 7; of the crusher could 

not be analyzed in June 1980 because of operatio;-al reasons (Pll at 1). 

MSHA's witness Rabius indicated the feederman and loader operator were 

either not present at the time of the feasibility study or the job 

descriptions had been changed (Tr. 247). 

7/ There is evidence in the cases concerning the reduction of the feederman's noise exposure but in view of MSHA's written report.I consider that 

such evidence refers only to the primary crusher operator (also occasionally called a feederman). That employee was protected by the 

construction of a booth. After Degerstrom placed the booth MSHA reconunended changes in its position to further reduce the noise (Tr. 2S3-2SS, 

Pll at Figure 15). 

661 
Respondent's Evidence 

In 1979 Degerstrom spent $696 which consisted of sixteen hours labor 

and $296 of material in an effort to reduce the noise level of the C-48 

dozer ( R2 at 1). 

Respondent's additional evidence generally relevent and material to 

these citations is discussed, supra, in Case No. WEST 79-362. 

Discussion 

The Secretary bears the burden of establishing technogolical and 

economic feasibility. No such evidence was offered. Accordingly, the 

citations and proposed penalties should be vacated. 

WEST 79-331 

In this case the Secretary issued his citation numbered 346490 under 

Section 104(a) of the Act. He alleges that Degerstrom violated 30 C.F.R. 

56.5-50(b) in that the noise level around the operator of the front end 

loader was 390 percent, [100 dBA], of the permissible limit. 

At the initial hearing there was evidence concerning this violation 

(Tr. 227-229). At the later hearing, after the feasibility study by MSHA, 

Degerstrom advised the Judge that Fischer (MSHA) had tested this equipment. 

The front end loader had been brought into compliance. Accordingly, 

Degerstrom was withdrawing its contest to the citation and the proposed 

civil penalty (Tr. 229, 230). 

According to witness Friend compliance was attained on the front end 

loader by installing a new muffler and directing it away from the operator. 

Further, sound foam was installed in the interior of the cab (Tr. 291). 

Pursuant to Commission Rule 29 C.F.R. 2700.11 the motion was granted 

and it is formalized in this decision. 

WEST 79-363-M 

In this case the Secretary issued his citations numbered 349040 and 

349061 under Section 104(a) of the Act. He alleges that Degerstrom on two 

instances violated 30 C.F.R. 56.4-24(d). The section cited, Title 30 Code 

of Federal Regulations, Section 56.4-24(d) provides as follows: 

56.4-24 Mandatory. Fire extinguishers and fire suppression 

devices shall be: 

(d) Inspected, tested, and maintained at regular intervals 

according to the manufacturer's recommendations. 

Petitioner's Evidence 

Theodore P. Herrara, an MSHA safety inspector experienced in mining, 

inspected the Degerstrom site (Tr. 10-13). Management and miner's 

representatives declined to accompany him (Tr. 13, 14). 

662 
The ABC ANSUL fire extinguisher in the oil storage room had not been 

checked periodically. The manufacturer recommends it be checked twice a 

year. The tag on the extinguisher indicated it was last checked in 

September, 1976 (Tr. 15, 16). 

In the main control room the tag indicated the wall hanging fire extinguisher was last inspected in February, 1977 (Tr. 16). The manufacturer suggests bi-annual inspections (Tr. 16). There were no other extinguishers in these rooms (Tr. 17). 

Inspector Herrara talked to Sanford (foreman) and Grimm about fire 

extinguishers (Tr. 13, 17). They said they looked good to them. The 

gauges confirmed that fact (Tr. 17). Herrara didn't attempt to contact the 

Degerstrom safety engineer (Tr. 19). 

The inspector terminated the citation when Degerstrom complied (Tr. 

18). 

Discussion 

The foregoing uncontroverted evidence establishes a prima facie case 

for the violation of the regulation. 

Uegerstrom's post trial brief does not state any position as to these 

citations. They should be affirmed. 

Civil Penalties 

In view of the stipulation and in considering the statutory criteria 

for assessing civil penalties, 30 U.S.C. 820(i), I deem that the penalties 

in WEST 79-362-M, WEST 79-331-M, and WEST 79-363-M are appropriate. They 

should be affirmed. 

The Solicitor and Degerstrom's counsel filed detailed briefs which 

have been most helpful in analyzing the .record and in defining the issues. 

I have reviewed and considered these excellent briefs. However, to the 

extent they are inconsistent with this decision, they are rejected. 

Based on the foregoing findings of fact and conclusions of law I enter 

the following: 

ORDER 

1. WEST 79-362-M: 

Citations 346416, 346417, and 346418 are affirmed and penalties 

respectively, of $34, $28, and $28 are assessed. 

2. WEST 79-14-M: 

Citations 350839 and 350840 and all proposed penalties are vacated. 

66J 
3. WEST 79-331-M: 

Citation 346490 is affirmed and a civil penalty of $28 is assessed. 

4. WEST 79-363-M: 

Ciations 349040 and 349061 are affirmed and civil penalties of $26 for 

such violations are assessed. 

Law Judge 

Distribution: 

Ernest Scott, Jr., Esq., Office of the Solicitor 

United States Department of Labor 

8003 Federal Building, Seattle, Washington 98174 

James A. Fish, Esq., Winston and Cashatt 

Seafirst Financial Center, 19th Floor 

Seattle, Washington 99201 

664 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 6 1983 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AMAX CHEMICAL CORPORATION, 

Respondent 

DECISION 

Docket No: CENT 82-86-M 

A/O No: 29-00174-0S030 H 

Docket No: CENT 82-90-M 

A/O No: 29-00174-0S029 

Docket No: CENT 82-91-M 

A/O No: 29-00174-0S031 

AMAX Mine and Mill 

Appearances: Eloise Vellucci, Esq., Office of the Solicitor, U.S. 

Department of Labor, SSS Griffin Square, Suite SOl, 

Dallas, Texas 7S202, for Petitioner; 

Before: 

Charles A. Feezer, Esq., P.O. Box 128, Carlsbad; 

New Mexico 88220, for Respondent 

Judge Moore 

The above docket numbers were consolidated for trial in Carlsbad, 

New Mexico on January 19, 1983 and involved 9 alleged violations of the 

safety standards. The second alleged violation that the solicitor chose 

to present involves citation No: Sl8039. After the inspector had testified 

as to why he issued the citation counsel for respondent announced that 

as far as he could tell from his files he had not contested that particular 

citation. Reference to the answer that he filed showed that no mention 

had been made of the citation and as far as he knew it had either been 

paid or the company had intended to pay it. After an off-the-record 

consultation it was agreed that there was no dispute concerning this 

citation. The violation occurr~d and the respondent has either paid the 

citation or will pay it. At the conclusion of this decision I will 

order payment, but of course, if respondent has already paid the citation 

that will end the matter. 

The next citation presented by the solicitor was numbered Sl8040. 

After the inspector had testified with respect to this citation the 

exact same sequence of events occurred as those involved in the previous 

citation. I will order payment of the assessment but again, if respondent 

has already paid the assessment the order will be of no effect. 

Citation No: OS17732 involved a defect in the manhoist in that one 

of the guard rails had split creating a hazardous situation. After the 

witness had been examined and cross-examined counsel for the government 

agreed with respondent's counsel that the testimony did not establish a 

violation of the standard. I therefore vacated the citation and dismissed 

that portion of the case. This left 6 alleged violations to be considered. 

665 
Citation No: 518053 and Citation No: 518049 both involved allegations 

that the back (roof) was bad. In connection with the first citation 

mentioned above an inuninent danger order was also issued. This was a 

potash mine and in potash mining there is no requirement that roof bolts 

or other roof supports be used unless there is some danger of a roof 

fall. Citation No: 518053 which was also an imminent danger order 

involved a travelway and there was admittedly bad top. Respondent had 

installed 175 roof bolts in the area and had installed cribs. The 

inspector noted that the cribs were not flush and tight against the back 

and his speculation was that green wood had been used and had shrunk. 

Respondent's witnesses were of the same opinion. I agree with respondent's 

witnesses that the fact that there was a gap between the top of the 

cribs and the top indicated that the cribs had shrunk away from the roof 

and that the roof had not moved. This indicates to me that the roof 

bolts were doing the job. It is a matter of one expert's opinion against 

another's and after hearing the testimony I can not conclude that the 

roof was improperly supported. I vacate citation No: 518053. W±th 

respect to citation No: 518049 it is again a matter of opinion. Two 

of respondent's experts went to the area that the inspector had described 

and found the area adequately bolted. The inspector came back the next 

day and issued a closure order (not involved in these proceedings) and 

respondents eventually rebolted the whole area. Only the citation is 

before me for consideration and after hearing the testimony of the 

inspector and respondent's experts I can not conclude t11at the government has sustained its burden of proof with respect to this violation. 

The inspector and witnesses for respondent may have been observing 

different areas. (Tr. 191-192). The citation says that the slab· 

''was over the roadway west of No. 30 belt drive in the Ten East Sect.Lon." 

The citation does not say how far west. If the witnesses were describing 

different areas, the confusion was caused by the ~ording of the citation. 

Also, the essence of the alleged violation was a failure of a supervisor 

to inspect (Tr. 30-31), and the condition ~as one that could develop 

rapidly. The citation is Vacated. 

Citation No: 518060 involved a work -platform thirty feet hig'.1 wlth 

railings en three sides but no railing on the fourth where the ladder 

was. The inspector observed a workman climb up t'n the thirty f.:">ct hi~;1:1 

scaffold and noted that he had no safety belt or safety line attached. 

The ind:Lvidual who was on the scaffold at the t:Lme testified th;:1t he was 

not working on the scaffold but had merely gone up there to get a piece 

of cable and had immediately brought it down. The standacd in question, 

30 C.F.R. 57.15-5 requires that a safety line be used where there is a 

danger of falling. It could be interpreted as requiring the climber of 

a ladder to climb two steps, re-attach a safety line, climb another two 

steps, re-attach a safety line and so-on till he got to the top of the 

ladder. It could a!so be interpreted to require him when he got to the 

top of the ladder to attach his line to something on the scaffold and 

reach over and grab whatever he is going to bring down, un-attach the 

line and re-attach below and work his way down the ladder attaching the 

safety line every three or four feet. I do not think that is a reasonable 

666 
interpretation. I think the standard is designed to protect a man who 

is working on the platform paint spraying or sand blasting or doing 

something else, from forgetting where he is and falling off the platform. 

In this case that was not a reasonable thing to anticipate. The citation 

is vacated. 

Citation No: 517738 alleges a violation of 30 C.F.R. 57.11-27 in 

that a "falling hazard" existed on the roof of an office which was 

enclosed within the maintenance building. The building within a building 

was 9 feet tall, had some boxes on top of it, plus a ladder that was 

either welded or bolted on and there was no evidence that any one had 

climbed the ladder and worked on top of the office building. It was not 

established that this was either an area requiring guards all around or 

safety belts and the citation is accordingly vacated. 

Citation No: 517734 alleges that there was not a safe means of 

access to a working place because in order to get there a miner is 

required either to step up twenty inches or to walk up a ramp that is 

only fifteen inches wide and has no guardcail. The citation was abated 

by constructing a two-step ladder in the area of the twenty-inch step-up 

so that it was no longer necessary to either step up twenty: inches, 

or walk on the fifteen-inch wide ramp to get to the working area. There 

was testimony about a rack holding pieces of steel in the vicinity of 

the fifteen-inch wide ramp. There was speculation and hearsay testimony 

as to how a miner would go about getting pieces of steel off the rack, 

but I have to assume that when a MSHA inspector abates a citation-he is 

stating that the alleged violation no longer exists. The steps that were 

used to abate the violation were on the left side of the ramp and steel 

rack and the unguarded fifteen-inch wide ramp is still right next to 

the rack holding the steel. Since any miner getting steel from the rack 

after the abatement would have to do exactly the same as a miner would have 

to do before the abatement, I do not see how the manner in which a miner 

gets the steel is pertinent to this violation. I do not consider it 

a failure to provide safe access to requ~re a miner to either step up 

twenty inches or walk an unguarded ramp up to a height of twenty inches. 

The citation is vacated. 

Citation No: 517720 alleges that there was an exposed pinch point 

in a return idler pulley underneath a conveyor belt where mobile equipment passes. At this mine the mobile equipment was a golf cart and it 

was connnon to take short cuts under the conveyor. A bracke~_ in the area 

of the return idler was what created the pinch point and the pinch point 

was twentyfour inches above anyone riding in a golf cart. While it might 

be unlikely that someone would have their hands up going under the belt 

it is nevertheless the very type of hazard which the standard was 

designed to prevent. While I think an accident was unlikely, it was 

nevertheless possible and a serious injury could have resulted. There 

was good faith abatement. I find the proposed assessment to be a 

reasonable penalty and therefore assess $84 for this violation. 

667 
It is therefore ORDERED that respondent pay to MSHA, within 30 

days, a civil.penalty in the amount of $304. 

Distribution: By Certified Mail 

Cl~ f. 9'»~?. Charles C. Moore, Jr., 

Administrative Law Judge 

Eloise Vellucci, Esq., Office of the Solicitor, U.S. Department of Labor, 555 Griffin Square, Suite 501, Dallas, TX 75202 

Charles A. Feezer, Esq., P.O. Box 128, Carlsbad, NM 88220 

668 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

MINERALS EXPLORATION COMPANY, 

Applicant, 

v. 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (M.:>HA), 

Respondent. 

) 

) APPLICATION FOR REVIEW 

) 

) DOCKET NO. WEST 81-189-RM 

) 

) 107(a) Order of Withdrawal 

) and Citation No. 577443 

) 

) MINE: Sweetwater Uranium Project 

) 

) ~~~~~~~~~~~~~~~~~~~ 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

MINERALS EXPLORATION COMPANY, 

Respondent. 

) 

) CIVIL PENALTY PROCEEDING 

) 

) DOCKET NO. WEST 81-270-M 

) 

) A/C No. 48-01181-05030 H 

) 

) MINE: Sweetwater Uranium Project 

) 

) 

) ~~~~~~~~~~~~~~~~~~~ 

Appearances: 

James H. Barkley, Esq. and Phyllis K. Caldwell, Esq. 

Office of the Solicitor, United States Department of Labor 

1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294 

For the Secretary 

Tedrick A. Housh, Jr., Esq. and Jaylynn Fortney, Esq. 

Office of the Solicitor, United States Department of Labor 

911 Walnut Street, Room 2106, Kansas City, Missouri 64106 

For the Secretary 

Anthony D. Weber, Esq., Union Oil Center 

P.O. Box 7600, Los Angeles, California 90051 

For the Operator 

Timothy D. Biddle, Esq. and Thomas C. Means, Esq. 

Crowell & Moring, 1100 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

For the Operator 

Before: John A. Carlson, Judge 

DECISION 

This case, heard under the provisions of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 ~seq. (the "Act"), arose from an 

669 
inspection of applicant's (Minerals') surface uranium mine. On February 

11, 1981, a mine inspector for the Secretary of Labor concluded his 

inspection of the C-1 pit of the Sweetwater Uranium Project with the 

issuance of a section 107(a) withdrawal order. He based this action upon 

his observation that areas of loose, unconsolidated and overhanging ground 

on one of the highwalls endangered miners working near the toe of the wall. 

The order charged a violation of a mandatory safety standard, 30 C.F.R. 

§ 55.3-5, which provides: 

Men shall not work near or under dangerous banks. Overhanging 

banks shall be taken down immediately and other unsafe ground 

conditions shall be corrected promptly, or the areas shall be 

barricaded or posted. 

Because a mandatory standard was involved, the inspector also issued a 

citation under section 104(a) of the Act, specifying that the violation was 

"significant and substantial." 

PROCEDURAL HISTORY 

This present proceeding commenced with Minerals' filing of an 

application for review of the imminent danger withdrawal order, which was 

first heard after an ordinary course of pleadings on April 15, 1981. At 

the conclusion of the two days allotted for trial, the Secretary had not 

completed his case in chief and the matter was continued to reconvene in 

June. The second segment of the hearing ultimately began on June 29, 1981, 

but only after some difficulties concerning whether officers of the Local 

Union of Progressive Mine Workers of America, Local 1979 B, as miners' 

representative, would be allowed to assert party status at the reconvened 

hearing. The judge initiated a June 22, 1981, telephone conference call, 

with counsel for both original parties and an officer of the union 

participating, in which arguments on the matter of party status for the 

union were entertained. Certain remarks made by Minerals' counsel were 

viewed by the union representative and the Secretary's counsel as an 

unlawful attempt to discourage or interfere with the Union's right of 

participation. 

The hearing did reconvene on June 29, 1981, as scheduled, with the 

express approval of the union, which withdrew its motion for party status 

(Tr. 346). Again, however, the hearing did not proceed to completion. 

This time it halted because of government allegations and testimony that 

Minerals had "falsified" a number of exhibits. Counsel for the operator 

professed surprise, and was granted time to investigate this charge before 

proceeding further with his defense. Consequently, on the afternoon of 

June 30, 1981, trial was continued indefinitely. Before it could be reconvened, the first in a series of longer delays began. At the commencement of the hearing on June 29, 1981, counsel for the Secretary had filed 

personally with this judge a letter-motion asking for institution of 

disciplinary proceedings against counsel for Minerals because of his 

alleged threats to the union representatives in the June 22 telephone call. 

6110 
On July 13, 1981 I referred the matter to the Commission without recorrnnendation. The Commission found that a disciplinary proceeding was 

warranted, and by order of July 23, 1981 referred the matter to Chief 

Administrative Law Judge Merlin. Minerals, through counsel retained for 

the disciplinary proceeding, secured from the Commission a ninety day stay 

of the original review proceeding upon the merits. 

Judge Merlin, en August 10, 1981, issued his decision holding, in 

essence, that while counsel's remarks were ill advised, no unlawful intent 

::;r~~~::~t 7nd that no disciplinary action beyond a cautioning was 

This judge set a resumption of the hearing on the merits for November 

2, 1981. In the meantime, a flurry of motion filings and responses ensued 

concerning various documents which have been subpoeaned by the government 

in connection with the charge of falsified exhibits. This phase of the 

case culminated in Minerals' filing of a sixty five page "Motion for 

Sanctions," asking for various types of relief based upon the Secretary's 

alleged misconduct in the case. Specifically, Minerals sought vacation of 

the 107(a) order, a declaratory order condemning actions of two mine inspectors, an order referring the conduct of the inspectors to the Inspector 

General of the Labor Department for disciplinary action, orders striking 

certain exhibits from the record and returning other documents to Minerals, 

an order reprimanding the Secretary's counsel for the manner in which they 

obtained personal diaries of certain of Minerals' employees, and the 

"consideration" of disciplinary action against the Secretary's counsel. 

All of the original counsel withdrew during the pendency of the motion 

and were replaced by other counsel. On November 4, 1981, this judge 

recused himself from consideration of the motion upon notification by the 

movant that he might be called as a witness. Judge Jon D. Boltz heard 

evidence on the motion for four days commencing on November 9, 1981. Both 

parties filed extensive post-hearing briefs, and Judge Boltz took the 

matter under advisement. On April 7, 1982, he issued his written order on 

the motion for sanctions in which he denied all the requested sanctions. 

On May 3, 1982, the Commission received Minerals' petition for 

discretionary review of Judge Boltz's determination. The Connnission, by 

order issued May 11, 1982, denied discretionary review because the judge's 

determination was not "final" within the meaning of the Act. It therefore 

deemed the petition one for interlocutory review under Commission Rule 74, 

and stayed the proceedings on the merits. On May 25, 1982, it denied the 

petition for interlocutory review, dissolved the stay, and returned the 

files to this judge. 

1/ See Disciplinary Proceeding (Minerals Exploration Company), Docket 

No. ])8"1-1, August 10, 1981. 

G71 
Meanwhile, on October 1, 1981 Minerals had filed a letter reflecting 

that the alleged hazard had been abated, and that the Secretary had 

therefore terminated the withdrawal order on September 9, 1981. A copy of 

the termination order was attached. The Secretary was therefore free to 

propose a civil penalty, which was duly contested by Minerals. That 

proceeding, docketed as WEST 81-270-M, was assigned to this judge and 

consolidated on November 18, 1981 with the earlier application of review of 

the withdrawal order. 

On July 7, 1982 Minerals moved that I issue a decision on the merits 

upon the present record. On September 15, 1982, the Secretary and Minerals 

filed a joint motion requesting that I decide the consolidated case without 

further hearing and without briefs. 

Denominated a "Joint Motion for Decision on the Present Record," the 

motion is actually somewhat broader than that. It provides that diary 

entries made by certain Minerals' employees are to be considered as 

evidence, though never introduced at trial. (In the proceeding before 

Judge Boltz, Minerals had unsuccessfully sought to have these diaries 

suppressed on grounds that they had come into the Secretary's possession 

through unlawful means. Thus, while the parties agree that I may consider 

the contents of the diary entries, Minerals reserves its right to review 

its plea for supression before the Commission at the appropriate time.) 

The joint motion also specifies that if a violation is found the 

penalty is to be determined on the basis of the record made in the 

proceeding to review the withdrawal order. That record is supplemented by 

stipulation in the motion as to several routine facts relating to penalty 

considerations. 

Finally, the parties stipulate that the decision should be mad~ 

"without reference to" the separate record made before Judge Boltz._/ 

On October 6, 1982, I granted the parties' motion to render this 

decision on the present record. That record contains the Secretary's case 

in chief, but was terminated shortly after the cormnencement of the 

operator's case. By making the motion Minerals saw fit to waive the 

completion of its case. By joining with Minerals, the Secretary waived his 

right to cross examination of Minerals' only witness and his right to 

present any rebuttal. 

The Secretary's allegation in his penalty proposal in Docket WEST 

81-270-M that Minerals operations affect cormnence was not contravened by 

Minerals. The jurisdiction of the Connnission is not in issue in these 

proceedings. 

2/ It could scarcely be otherwise since I neither heard the testimony nor 

obs~rved the demeanor of the witnesses in the sanctions hearing. To the 

extent, then, that evidence adduced at that hearing may have relevance to 

the validity of the withdrawal order or the issues in the penalty 

proceeding, it is simply not considered in this decision. 

672 
REVIEW AND DISCUSSION OF 

THE EVIDENCE 

The undisputed evidence shows that the C-1 pit ts one of three pits at 

Minerals' Sweetwater Uranium Project near Rawlins, Wyoming. Stripping 

began in 1978 and the mining of ore in 1980. The focus of this case is on 

the east highwall of the C-1 pit, which was mined to a planned slope of 

about 3/4 to 1 (3 feet horizontal to 4 feet vertical). (Tr. 455.) Mining 

proceeded with blasting and excavation by power shovels equipped with 17 

yard buckets. 

The mining plan in force at the time of the inspection provided for 

mining in a series of 40 foot vertical working heights or intervals on the 

highwalls (Tr. 284, 455). 

When inspectors Merrill Wolford and Melville Jacobson viewed the C-1 

pit on February 11, 1981, they observed a number of overhangs and an area 

of loose and unconsolidated ground clustered along the brow or lip of the 

6540 foot bench. This bench (6540 feet above sea level) was at least 55 

feet above the pit floor (Tr. 55). A shovel operator and an ore technician 

were working as close as 3 to 4 feet from the toe of the wall (Tr. 69, 

85-86). Periodically, according to Wolford, four truck drivers were also 

close to the toe of the wall as their trucks were loaded. Had any of the 

overhanging or loose ground fallen from the lip of of bench, Wolford 

claimed, any of these six miners could have been killed or severely 

injured. 

Consequently, Wolford issued his withdrawal order. In obedience to 

the order, Minerals "dangered off" the area of the pit floor below the 

overhangs by construction of a berm some 500 to 600 feet in length. 

At the hearing Wolford and Jacobson's verbal descriptions of the 

condition of the bench lip were substantiated by other governmental 

officials. On February 17, 1981, the site was investigated by Gordon R. 

Lyda, a mining engineer with the Ground Support Division of the Denver 

Office of the Mine Safety and Health Administration. This witness 

described the soil structure in the overhangs and the loose soil area as 

sedimentary sandstones of varying degrees of cementation mixed with shales, 

siltstone and mudstone (Tr. 231, 242). The areas in question lacked 

"overall structural integrity," he testified, particularly since there were 

deep fractures in the surface of the 6540 foot bench immediately behind the 

overhangs. (Tr. 175, 184). From below, he saw "fractured, broken rock, 

[and] loose slabby material in the area of the overhangs" (Tr. 183-184). 

Herman Fink, a Deputy State Mine Inspector for the State of Wyoming 

also viewed the wall on February 17, 1981. His observations agreed with 

those of Wolford and Lyda. He described "the whole highwall" as "full of 

loose rock" (Tr. 354-355). 

673 
The Secretary's witnesses also testified as to the cause of the 

overhangs: undermining of the crest of the 6540 bench. Lyda and Fink, in 

particular, asserted that shovel-teeth marks were plainly visible directly 

below the overhangs, an indication that the wall was improperly cut. The 

overhangs did not result, that is to say, from subsequent sloughage. 

The brief testimony presented by Minerals' single witness, Lawrence G. 

Dykers, Project General Manager of the Sweetwater operation, did not 

directly rebut the testimony of the government witnesses. Mr. Dykers 

discussed a distinction between "irregularites" and "overhangs" in pit 

walls, explaining that irregularities are inevitable in the mining process. 

He did not go so far, however, as to deny that overhangs were present. 

I conclude that the Secretary's evidence overwhelmingly establishes 

the existence of overhangs and an area of loose and unconsolidated ground. 

A host of color photographs, taken from various places and angles, confirm 

the words of the witnesses. The evidence also shows clearly that six 

miners were exposed at various times to the hazard presented by falling 

rock. The Secretary's evidence on this element of violation was never 

challenged. 

To the extent that the operator attempted a defense in its abbreviated 

case, it was intended to center, I think, upon the existence of another 

safety bench below the 6540 bench. Had there been a broad bench below the 

6540 bench, it would have served to catch much of any materials falling 

from the overhangs, and greatly reduced the possibility of injuries to 

miners working near the toe. Mr. Lyda testified that safety benches "are 

necessary to a proper mining operation," and conceded that they "would tend 

to reduce the hazard ••• of people ••• being struck by sliding or falling 

or airborne material" (Tr. 303-304). Even so, he was not certain that a 

bench would be adequate protection against the "major, significant overhangs" (Tr. 304). 

As it turned out, however, there was simply no intervening bench - at 

least none of significance. Four government witnesses testified in detail 

about the lower bench. Their recitals were unanimous: a remnant of a lower 

bench was visible on the wall, but only a remnant. What width there was, 

was filled with sloughage. Thus, had overhanging or unconsolidated 

materials broken loose from the 6540 bench, nothing would have interrupted 

their fall to the pit floor (Tr. 25, 292-293, 356, 362, 539, 546). 

This brings us to the allegedly "falsified" exhibits. Early in his 

testimony, mine project manager Dykers testified concerning a survey of the 

east wall of the C-1 pit which was initiated on February 13, 1981 (Tr. 

461). A large plan view (overhead view) of the approximately 600 foot long 

section of the C-1 pit was then placed before the witness who indicated 

that it was a product of the survey. Dykers testified that survey points 

had been established at 19 points along the area of the face covered by the 

plan view. At these points the survey crew had physically measured the 

"most prominent and pronounced" irregularities on the face (Tr. 464-465). 

Shaded areas on the plan view, he said, represented slopes, and unshaded 

674 
areas flat surfaces, including safety benches (Tr. 467). This document, 

identified as ex~ibit A-2, was then offered and counsel for the Secretary 

was permitted voir dire. 

After a few questions on voir dire, government counsel then suggested 

upon the record that the drawing was inadmissible because it was 

"falsified." Without object ion from counsel for Minerals, counsel for the 

Secretary then read into the record a statement from one Brian K. Baird, 

the draftsman who had prepared the plan view. Baird's statement alleged 

that the original plan view and many of the original 19 cross sectional 

drawings had been altered before the hearing. The statement claimed that 

the original drawings had accurately reflected the survey notes and actual 

measurements. 

Counsel for Minerals professed no knowledge of any alteration, agreed 

that the matter had to be resolved, and agreed to the issuance of subpoenas 

to government counsel to obtain the testimony of the appropriate company 

employees (Tr. 476-480). The hearing continued no further on June 29. 

Testimony resumed the following afternoon with Brian K. Baird on the 

stand as the government's witness by agreement of the parties (Tr. 43). 

Baird confirmed that he was the draftsman who prepared the original plan 

view from the survey notes. He testified that he had computed coordinates 

from the notes and plotted them on his drawing in accordance with standard 

engineering practice. He then identified another drawing, marked as 

exhibit R-19, as his original and accurate plan view, and averred that 

various markings on the sheet were added by one Larry Snyder, whom he 

identified as the company's head of safety and environment (Tr. 491). 

Exhibit A-2, according to Baird, reflected the revisions ordered by Snyder 

which extended and widened the lower (6470) bench across the face of the 

C-1 pit (Tr. 492, 494). Baird asserted that the changes were freehand 

exercises by Snyder, based upon no new survey data (Tr. 495, 532, 573). 

The witness then compared two separate sets of the cross-sectional 

drawings which were tied to reference points on the plan view. The first 

set, he testified, were prepared by him and a fellow draftsman. They were 

based upon measurements of the overhangs and the known elevations of the 

benches. The remaining features were drawn from observations of photographs and slides and were therefore not as precise. (Tr. 498, 499, 527, 

528). Baird maintained that the second set of diagrams, which were 

intended for introduction at the hearing, contained a number of alterations 

made by persons unknown to him. Generally, according to Baird, the cross 

sections were added to and altered to show a wider bench in conformance 

with Snyder's changes on the plan view (Tr. 508). On the 4X cross section, 

for example, he pointed to a change which widened the bench about 2 1/2 

feet (Tr. 551). Baird maintained that he had observed the lower bench 

remnant at the 6470 foot elevation, and that the first set of drawings 

accurately represented its dimensions, while the second set did not (Tr. 

497, 569). Both sets of all the drawings were offered by the Secretary and 

admitted without objection. 

675 
No more evidence was taken after Baird's testimony. On the basis of 

the record before me, I am not prepared to hold whether or not the second 

set of drawings were "falsified" as the Secretary contends. Such a holding 

is not necessary to reach a proper decision on the merits of this case. 

Perhaps some satisfactory explanation for the changes exists, and it would 

be presumptuous of me to conclude that outright misconduct occurred when it 

is likely that the evidence adduced before Judge Boltz dealt at greater 

length with the drawings. 

I did find Baird an earnest and believable witness with no discernable 

motive for dissembling. At the very best, the process by which the final 

set of drawings came about betrays a subjectivity, a flexibility, which 

robs them of any weight favorable to Minerals. Beyond that, even if the 

modified drawings were accepted as accurate, they would not persuade me of 

the absence of violation. Various of the cross sections show substantial 

overhangs; and even the widest versions of the lower bench would not appear 

sufficient to keep a major materials fall from reaching the pit floor. The 

credible evidence proves violation. '!_! 

We now consider whether the violative conditions constituted an 

innninent danger. Section 3(j) of the Act defines an imminent danger as: 

The existence of any condition or practice in a coal or 

other mine which could reasonably be expected to cause death 

or serious physical harm before such condition or practice 

can be abated. 

Section 107(a) of the Act sets out the procedures for issuance of 

withdrawal orders when an inspector finds an imminent danger. It 

provides: 

If, upon an! inspection or investigation of a coal or other 

mine which is subject to this Act, an authorized representative 

of the Secretary finds that an innninent danger exists, such re3/ One of the stipulated exhibits in the agreement for a decision on the 

present record appears to give further credence to Baird's testimony. The 

diary of Chris Hill, identified as Baird's immediate supervisor, contains 

this entry for June 3, 1981: 

Larry Snyder redesigned our survey of 5-29-81 in Pit 1 

6470 bench. He told Brain [sic] the draftsman to draw 

in bench that is not there. 

I note, however, that my determinations as to the worth of the survey 

drawings were predicated upon Baird's unrebutted testimony and would have 

been the same without the diary evidence. 

I also note that another diary entry relating to the mining out of a 

bench on the east wall did not influence my decision as to the existence or 

non-existence of a lower safety bench. This entry, standing alone, did not 

identify the bench with sufficient clarity. 

676 
presentative shall determine the extent of the area of such mine 

throughout which the danger exists, and issue an order requiring 

the operator of such mine to cause all persons, except those referred to in section 104(c), to be withdrawn from, and to be prohibited from entering, such area until an authorized representative 

of the Secretary determines that such imminent danger and the 

conditions or practices which caused such imminent danger no longer 

exi.st. The issuance of an order under this subsection shall not 

preclude the issuance of a citation under section 104 or the proposing of a penalty under section 110. 

In imminent danger cases the Secretary must establish a prima facie 

case. The ultimate burden of proof, however, is then borne by the 

applicant, who must show by a preponderance of the evidence that no 

imminent danger existed. Otherwise, the order of withdrawal must be 

affirmed. Lucas Coal Company, 1 IBMA 138 (1972). 

Old Ben Coal Corporation v. Interior Board of Mine Operation's 

Appeals, 523 F. 2d 25, 32 (7th Cir. 1975) approved this test for imminent 

danger: 

[W]ould a reasonable man, given a qualified inspector's 

education and experience, conclude that the facts indicate an 

impending accident or disaster, threatening to kill or to cause 

serious physical harm, likely to occur at any moment, but not 

necessarily immediately? The uncertainty must be of a nature 

that would induce a reasonable man to estimate that, if normal 

operations designed to extract coal in the disputed area proceed, it is at least just as probable as not that the feared 

accident or disaster would occur before elimination of the danger. 

The Secretary presented strong evidence as to the immediacy of the 

danger presented by the soil conditions on the lip of the 6540 bench. 

Inspector Wolford, whose many years experience as a miner and inspector in 

open pit operations was supplemented by thirty hours of specialized 

training in ground control (Tr. 23), believed the overhangs "could come 

down at any time" (Tr. 44). Mr. Lyda, who specializes in ground control 

matters found "a very good potential for a fall of ground" (Tr. 175), 

though no one could say when it would come down (Tr. 198). He was certain 

that either isolated or massive falls - as much as 300 to 400 tons - would 

eventually occur (Tr. 176-177), and that mining operations should not be 

permitted "within close proximity" (Tr. 272). Supervisory inspector 

Jacobson believed that a fall could have occurred at "any second" (Tr. 

410). Wyoming inspector Fink did not issue a Wyoming "closure order" 

because the federal authorities had already acted. He stated, however, 

that he concurred with the opinions of Lyda and Wolford as to the presence 

of loose materials and overhangs which "could come down at any time" (Tr. 

349-351). 

This unanimous body of op1n1on was essentially unrebutted by Minerals. 

I do note that none of the inspecting group witnessed any sloughage or 

falls of rock from the unstable areas during the time of the inspection. 

This fact alone does not detract in any significant way from the array of 

677 
objective indications of instability observed by all the inspecting 

personnel who testified. No one suggests that large falls are always 

proceeded by small ones; and it is axiomatic that moments before any 

highwall falls, it stands. A determination of innninent danger is 

necessarily judgmental in nature. I must conclude that the judgments of 

the inspectors were sound: that the condition of the wall posed a likelihood - though not a certainty - that a large fall of rock could occur at 

any moment, imperiling the lives of the miners working near the toe of the 

wall. The facts warranted the issuance of a withdrawal order. 

Similarly, Inspector Wolford properly designated the violation of the 

standard as "significant and substantial." Such violations are defined in 

section 104(d) of the Act as those which" ••• could significantly and 

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

safety and health hazard." The definition has been further construed by 

the Commission to mean those violations where" ••• there exists a reasonable likelihood that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Secretary v. Cement Division, 

National Gypsum Co., 3 FMSHRC 822 (1981). This same case also makes it 

clear that a significant and substantial violation may properly be charged 

in a 104(a) citation. 

Since the facts before me indicate that the more stringent test of an 

imminent danger has been met, there can be no doubt that the violation of 

30 C.F.R. § 55.3-5 was significant and substantial. There was a reasonable 

likelihood that a collapse of the unstable area of the highwall would cause 

injuries of a "reasonably serious nature" to any or all of the six miners 

working in the pit floor near the wall. 

Before moving to the question of an appropriate penalty, several 

dismissal motions made early in the hearing must be disposed of. Ruling 

was reserved at the time they were made. 

First, Minerals argues that the withdrawal order lacked the 

specificity demanded by section 107(c) of the Act wherein it requires a 

"detailed description" of the conditions which constitute the imminent 

danger as wel 1 as a "de script ion" of the area from which miners are to be 

withdrawn. The thrust of the argument appears to be that this is an 

absolute due process requirement which is unaffected by the actual knowledge of the operator. The argument lacks merit. The statutory provision 

does no more than require that an operator have reasonable notice of the 

identity of the hazard and the part of the mine affected. The citation 

speaks in terms of overhanging banks and loose ground on the east wall of 

the C-1 pit and identifies the miners endangered. It thus meets any 

specificity requirements of the Act. 

Beyond that, had Minerals entertained any genuine doubts as to any 

particulars of the order·, it could easily have availed itself of any of the 

discovery techniques available under the Commission Rules to resolve those 

doubts. Cf Evansville Materials, Inc., 3 FMSHRC 704 (1981). Actually, it 

678 
was apparent as the hearing progressed that Minerals at no time had any 

significant questions as to the particulars of the government's 

allegations. 

Second, Minerals argues that the standard itself is impermissibly 

vague because it contains "no guidelines to establish the conduct of the 

inspector with regard to what is and what is not dangerous." This arguement, too, lacks merit. Standards must often be made "simple and brief 

in order to be broadly adaptable to myriad circumstances." Kerr-McGee 

Corporation, 3 FMSHRC 2496 (1981). Terms such as "unsafe" or "dangerous" 

appear frequently in mandatory standards. Thus, in Alabama By-Products 

Corporation, 4 FMSHRC 2128 (1982), Docket No. BARB 76-153, the Commission 

declared: 

[I]n deciding whether machinery or equipment is in 

safe or unsafe operating condition, we conclude that 

the alleged violative condition is appropriately 

measured against the standard of whether a reasonably 

prudent person familiar with the factual circumstances 

surrounding the allegedly hazardous condition, including 

any facts peculiar to the mining industry, would recognize a hazard warranting corrective action within 

the purview of the applicable regulation. 

See also Ryder Truck Lines, Inc., v. Brennan, 497 F. 2d 230 (5th Cir. 

1974), United States Steel Corporation, 5 FMSHRC 3 (1983), Docket No. KENT 

81-136, January 27, 1983. The standard cited in the present case meets 

constitutional requirements. 

Minerals also attempted to exclude all evidence gathered by the 

Secretary after the issuance of the withdrawal order. Such evidence, 

Minerals claims, cannot be considered in determining whether the elements 

of an imminent danger were present at the time the inspector made the 

order. Specifically, the operator is concerned about observations made by 

the Secretary's personnel on February 17, 1981. The photographs of the 

east wall introduced by the Secretary were made on that day, as were the 

observation of cracks on the surface of the 6540 bench. 

Minerals is correct, of course, that after-acquired evidence must be 

examined closely to determine whether it is truly relevent to conditions as 

they existed at the time of the order. Here the photograph was unquestionably relevant since witnesses who were present on the date of the 

original inspection testified without contradiction that the dangerous 

features on the highwall had not changed. As to the cracks on the surface 

of the 6540 bench (the inspection party did not climb to the top of the 

bench until the subsequent visit on February 17), Mr. Lyda testified with 

certitude that the fractures behind the overhangs, although they may have 

enlarged "microscopically" between February 11 and 17, were such that 

679 
they could not have been newly formed since the date of the order (Tr. 

186-187, 250-251, 289-290). 4; The thrust of his testimony was that 

unstable ground formations such as he observed, once in existence, 

invariably move slowly and deteriorate until a failure or fall occurs, but 

that no one can predict the precise time of such a collapse. The evidence 

gathered on the surface of the 6540 bench on February 17, 1981 was 

therefore relevant to conditions on February 11. 

PENALTY 

After Minerals removed the overhangs and the Secretary terminated the 

withdrawal order in September 1981, the ~ecretary proposed a civil penalty 

of $1,250.00 for the alleged violation. _/ 

At the outset of the hearing, the parties stipulated that the mine 

employed 280 persons and mined 60 tons of materials daily. In the 

stipulations which were a part of the agreement to submit the case for 

decision upon the present record, the parties represented that Minerals is 

a large uranium mine operator; that assessment of a penalty will not affect 

its ability to continue in business; and that an appended computer printout 

furnished by the Secretary shows the violations alleged against Minerals 

during the two years prior to the February 1981 withdrawal order, and 

whether the proposed penalties were paid or contested. The data show that 

154 violations were assessed and 104 were paid, for a total amount of 

$14,330.00. 

On the record before me, few of the statutory penalty criteria tend to 

favor Minerals. Its size is large, and the assessment of a significant 

penalty will not jeopardize its ability to continue in business. The 

gravity of the violation was high in that the lives of several miners were 

clearly endangered. The operator's negligence was also high; the hazardous 

lip of 6540 bench was visible to anyone inclined to look. Even for a large 

mine, Minerals' history of prior violations and penalties is far from 

positive. As to good faith, the evidence does indicate that Minerals 

responded quickly in building a berm on the pit floor to isolate miners 

from falling rock after the federal inspector issued his withdrawal order. 

4/ The record contains considerable testimony about whether the fractures 

were "gas cracks" originating at the time the area below the 6540 bench was 

blasted during the mining process, or whether they were "tension cracks" 

created by natural pressures owing to structural weakness. The question 

need not be decided since the evidence shows that Mr. Lyda made his 

evaluation of significant instability on the assumption that they were 

tension cracks, which are usually somewhat less serious than gas cracks 

(Tr. 287-289). 

5/ Section llO(i) of the Act requires the Commission, in penalty 

assessments, to consider the size of the operator's business, its 

negligence, its ability to continue in business, the gravity of the 

violation, and the operator's good faith in seeking rapid compliance. 

680 
Minerals should not be penalized for delaying further abatement by 

exercising its statutory right to secure review of the validity of the 

withdrawal order. 

I conclude that the facts warrant imposition of a civil penalty of 

$1,250.00. 

FINDINGS OF FACT 

Upon the entire record, and in conformity with the findings embodied 

in the narrative part of this decision, the following findings of material 

fact are entered: 

(1) Minerals operates an open pit uranium mine near Rawlins, 

Wyoming. 

( 2) On February 11, 1981, six miners were working on the floor of the 

C-1 pit as close as two feet from the toe of the east highwall. 

(3) Far above these miners several areas of overhanging rock and a 

single area of loose and unconsolidated rock were located on the lip of the 

6540 foot safety bench. 

(4) The wall below the 6540 lip lay at a slope of approximately 3/4 

to 1. On the date of inspection there was no safety bench, or remnant of 

any former safety bench, of sufficient width to catch or interrupt the fall 

of rock should it break loose from the upper bench. 

(5) Had any significant part of the loose or overhanging rock fallen, 

it would likely have killed or severely injured one or more of the miners 

working below it. 

(6) The loose and overhanging rock was unstable and likely to fall at 

any moment, without warning, and before the hazard could be abated. 

(7) Minerals is a large mine operator. 

(8) Imposition of a significant civil penalty would not impair 

Minerals' ability to continue in business. 

(9) The loose and overhanging rock on the lip of the 6540 bench was 

readily apparent, and Minerals knew or should have known of its existence 

and the hazard it presented. 

(10) Minerals acted with dispatch in building a berm on the floor of 

the C-1 pit to keep miners out of the danger area when the Secretary's 

inspector issued his innninent danger withdrawal order on February 11, 

1981. 

681 
CONCLUSIONS OF LAW 

Pursuant to the findings in this matter, it is concluded that: 

(1) The Commission has jurisdiction to decide this matter. 

(2) The conditions on the lip of the 6540 foot bench above the area 

where miners were working violated the mandatory standard published at 30 

C.F.R. § 55.3-5. 

(3) The violation was "significant and substantial" as that term is 

used in section 104(d) of the Act. 

(4) The violation constituted an "imminent danger" as that term is 

defined in section 3(j) of the Act and used in section 107(a) of the Act. 

(5) The Secretary's issuance of a withdrawal order under section 

107(a) of the Act was warranted. 

(6) The violation warrants the imposition of a civil penalty against 

Minerals in the amount of $1,250.00. 

ORDER 

Accordingly, it is ORDERED that: 

( 1) Minerals' application for review of the withdrawal order issued 

February 11, 1981 is dismissed, and that order is affirmed. 

( 2) The citation issued under section 104(a) of the Act con temporaneously with the withdrawal order 1.S affirmed. 

(3) Minerals shall pay to the Secretary, within 30 days of the date 

of this present order, a civil penalty of $1,250.00. 

Judge 

682 
Distribution: 

James H. Barkley, Esq. 

Office of the Solicit9r 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Phyllis K. Caldwell, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Tedrick A. Housh, Jr., Esq. 

Office of the Solicitor 

United States Department of Labor 

911 Walnut Street, Room 2106 

Kansas City, Missouri 64106 

Jaylynn Fortney, Esq. 

Office of the Solicitor 

United States Department of Labor 

911 Walnut Street, Room 2106 

Kansas City, Missouri 64106 

Anthony D. Weber, Esq. 

Union Oil Center 

P.O. Box 7600 

Los Angeles, California 90051 

Timothy D. Biddle, Esq. 

Crowell & Moring 

1100 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

Thomas C. Means, Esq. 

Crowell & Moring 

1100 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

683 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR 611)3 

LEO KLIMCZAK, 

Complainant 

v. 

GENERAL CRUSHED STONE COMPANY, 

INC., 

Respondent 

DECISION 

Complaint of Discharge, 

Discrimination, or Interference 

Docket No. YORK 82-21-DM 

MD 81-132 

Rochester Mine 

Appearances: Richard A. Dollinger, Esq., Greisberger, Zicari, Mcconville, 

Cooman & Morin, P.C., Rochester, New York, for Complainant; 

Joseph E. Boan, Esq., Pittsburgh, Pennsylvania, for 

Respondent. 

Before: Judge Melick 

This case is before me upon the complaint of Leo Klimczak under se.ction 

105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et~·, the "Act", alleging that the General Crushed Stone Company (General) 

discharged him on June 29, 1981, in violation of section 105(c)(l) of the 

Act. ~/ Evidentiary hearings were held on Mr. Klimczak's complaint in 

Rochester, New York. 

In order for Mr. Klimczak to establish a prima facie violation of section 

105(c)(l) of the Act he must prove by a preponderance of the evidence that he 

has engaged in an activity protected by that section and that the discharge of 

him was motivated in any part by that protected activity. Secretary ex rel. 

David Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (1980), rev'd on other 

grounds sub nom, Consolidation Coal Co. v. Secretary, 663 F.2d 1211 (3rd. Cir. 

1981). Before his discharge on June 29, 1981, purportedly for excessive absenteeism and a bad work attitude, Mr. Klimczak had been employed by General for 

almost 9 years as a mechanic welder. In this case, he asserts essentially 

four claims of protected activity. While challenging some of the details of 

1/ Section 105(c)(l) ·of the Act provides in part as follows: "No person 

shall discharge * * * or cause to be discharged or otherwise interfere with 

the exercise of the statutory rights of any miner * * * in any * * * mine subject to this Act because such miner * * * 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 miners at the*** mine of an 

alleged danger or health violation in a * * * mine * * * or because such miner 

* * * has instituted or caused to be instituted any proceeding under or 

related to this Act * * * or because of the exercise by such miner * * * on 

behalf of himself or others of any statutory right afforded by this Act. 

684 
the claims, Respondent, in its brief, does not deny that complaints were in 

fact made by Mr. Klimczak and that they did in fact concern matters of safety. 

The thrust of its argument appears to be that those complaints were made in 

bad faith only to harass mine management and that those complaints were therefore not protected. 

While a "good faith" and "reasonableness" test does apply to protected 

work refusals under section 105(c)(l), Robinette v. United Castle Coal Co., 

3 FMSHRC 1803 (1981), I find no similar requirement under that section for 

protected safety complaints. In Munsey v. FMSHRC, 595 F.2d 735 (D.C. Cir. 

1978), it was held that no such requirement existed (for protected safety complaints) under the similar anti-discrimination provisions of former section 

llO(b) of the Federal Coal Mine Health and Safety Act of 1969. The Court in 

Munsey was understandably concerned that imposing any "good faith" or "not 

frivolous" test for safety complaints would discourage the reporting of such 

complaints. The rationale of the Munsey decision is persuasive and I find 

nothing in the 1977 Act or its Legislative History to suggest that the same 

rationale and conclusion should not also apply to the comparable provisions of 

section 105(c)(l). Under the circumstances, it is not necessary at this point 

in the analysis to determine whether the safety complaints made by 

Mr. Klimczak in this case were "reasonable" and made in "good faith". Those 

complaints were, in any event, activities protected by the Act. 

The first of these protected activities occurred during February t981 

when Mr. Klimczak complained to Assistant Mine Superintendent Ben Gardner, to 

his union representative (shop steward) Sam Metrano, and to his group leader 

(foreman), Charlie Solt, about his need for an assistant to help with his welding. Klimczak testified that he had twice been injured while struggling alone 

with large sheets of steel and had complained to each of these men about his 

need for a shop assistant to help him safely perform his work. While Solt 

admitted at hearing that Klimczak had complained to him about the absence of a 

shop helper, Solt denied that Klimczak said it was unsafe for him to work 

alone. Solt did not deny however, that he then knew Klimczak had previously 

been injured while struggling without assistance with large sheets of steel. 

It may therefore reasonably be inferred that Klimczak's complaints to Solt 

regarding his need for help was a complaint about an alleged danger within the 

meaning of section 105(c)(l). Moreover, neither Ben Gardner nor Sam Metrano 

testified in this case and no affirmative evidence has been presented to 

suggest that they had not received complaints of the alleged danger from 

Klimczak. Accordingly, I find that Klimczak did make the ?lleged safety complaints and that the union representative, the group leader, and the assistant 

mine superintendent were all aware of those complaints. 

The second protected activity occurred in March 1981 when Assistant Superintendent Gardner directed Klimczak to weld some duct work from a "bucket" 

elevated by a crane. Klimczak protested to Gardner that this was an unsafe 

procedure but went ahead and did the job anyway. As he was being lowered 

after completing the job, however, an accident occurred in which he was in a 

"free fall," dropping about 20 feet to the ground. After this incident 

Klimczak told Gardner and Solt that he would never get in the bucket again. 

The Mine Superintendent, Thomas Meehan, admitted that he also knew of this 

incident and, recognizing the danger posed by the bucket, ordered it removed 

685 
from service. Meehan also knew that Klimczak had complained about having to 

work in the elevated bucket. Klimczak's complaint about the safety of the 

bucket was clearly a protected complaint. In addition, I find that Klimczak's 

statement that he would refuse to ever again work in the bucket in that manner, was also a protected work refusal. There is no dispute· that this anticipatory work refusal was reasonable under the circumstances and made in good 

faith. Robinette, supra. 

The third protected activity occurred in April 1981. Klimczak was 

directed by Gardner to "hot weld" a gas cap hinge onto the crane within 12 to 

14 inches of its unpurged gas tank. It is not disputed that welding in such a 

manner is indeed unsafe. Accordingly, Klimczak's protestation to Gardner that 

the assigned task was dangerous is also a protected safety complaint. The 

fourth and final protected activity occurred sometime in May 1981. 2/ 

Gardner had directed Klimczak to re weld some cracks located some 10-to 20 feet 

above ground in an area of the portable crusher that had no hand rails. While 

agreeing to do the job, Klimczak told Gardner that that would be the last time 

he would work on the equipment without a ladder or catwalk and threatened to 

report the condition to a Federal inspector. 

Since Mr. Klimczak has established that he did in fact make protected 

safety complaints to the operator in February, March, April, and May, 1981, 

and did engage in a protected work refusal in March 1981, it is necessary, 

following the Pasula analysis, to next determine whether the operator,_in discharging him, was motivated in any part by those protected activities.· 

Direct evidence of motivation in section 105(c) discrimination cases is, 

of course, rare and indirect or circumstantial evidence must ordinarily be 

relied upon by the Complainant. Secretary ex rel Chacon v. Phelps Dodge 

Corp., 3 FMSHRC 2508 0981), pet. for review filed, No. 81-2300 (D.C. Cir. 

December 11, 1981). In this case, Klimczak cites several circumstantial factors ·that he contends demonstrate that his discharge was motivated by his protected activities. He alleges that agents of the operator had knowledge of 

his protected activities, that management showed hostility towards his protected activities, that he was accorded disparate treatment vis-a-vis other 

employees committing equally or more serious breaches of conduct, and that 

there was a coincidence in timing between the protected activities and the 

subsequent discharge. 

With respect to the first allegation, the evidence is indeed uncontradicted that the assistant mine superintendent, Ben Gardner, knew of each of 

the protected activities and it was Gardner who composed the discharge letter 

based in part on his own personal knowledge (from his diary) of the Complainant's work history. In addition, Mine Superintendent Thomas Meehan admitted 

that he was aware of Klimczak's complaints about riding in the elevated 

2/ Klimczak reported in his initial complaint to MSHA, filed July 13, 1981, 

that this incident occurred in late May 1981, but testified at hearing more 

than a year later than the incident occurred on June 24, 1981. I find the 

former statement to be more likely correct since it was made only a short time 

after the event. Klimczak's time sheets also show him to have been welding on 

the portable crusher during May and on June 2nd but not on June 24th. 

686 
bucket. 3/ In light of the close working relationship between Gardner and 

Meehan it is reasonable to infer that Meehan was also aware of the other 

safety comp lain ts as we 11. In any event, although Meehan contradicts himself 

on this point, I accept Meehan's admission that the decision to discharge 

Klimczak on June 29, 1981, was a joint decision by Gardner and himself. 

Within this framework of evidence it is clear that those responsible for 

Klimczak's discharge together had knowledge of all of Klimczak's protected 

activities. 

Klimczak next claims that mine management showed hostility towards his 

protected activities by allegedly failing to follow the disciplinary procedures set forth in the collective bargaining agreement (Agreement) and by the 

alleged arbitrary manipulation of its absentee and vacation policies against 

him. 4/ Article II Section 4 of the Agreement sets forth the right of 

management to discharge an employee for excessive absenteeism. (Joint Exhibit 

No. 1). It provides as follows: 

Management maintains the right to discharge an employee for 

excessive absenteeism. Absenteeism means absence from the job without prior notice to and consent of the company. 5/ Notification 

will be required by the Employer within one (1) hour after the start 

of the emplo;,ee's regular shift. This condition to apply for sickness, accident, etc., where prior notice as provided could not be 

given. Excessive absenteeism means absenteeism four (4) times . 

within a calender year. The first absence without good cause brings 

a written warning from the company; second absence within thirty 

(30) days of the previous absence shall bring suspension without pay 

for two (2) days; third absence within thirty (30) days of the 

second absence shall bring a suspension without pay for one (1) week 

(five [5] scheduled workdays). Four (4) such absences within the 

calendar year shall be cause for discharge. 

3/ In light of this I give little credence to Meehan's subsequent responses 

to leading questions suggesting that he was not aware of Mr. Klimczak making 

any "safety complaints." 

4/ The factual analysis of these allegations is inextricably tied to the 

Respondent's alternative defense that it would have discharged Mr. Klimczak in 

any event for his unprotected activities alone and with the Complainant's 

rejoinder that the proffered defense was only a pretext. Accordingly, the 

analysis of this evidence is relevant to all of these arguments. In this 

stage of the analysis, however, the Complainant has the burden of proof. 

Pasula, supra. 

5/ Superintendent Meehan testified that he considered an absence "excused" 

during the regular work week (Monday through Friday) so long as the employee 

notified the company of his absence within 1 hour after the start of his shift. 

There was therefore no need to have the company's formal "consent" before the 

absence was considered excused. 

687 
In support of his argument that General applied its absentee policy in a 

discriminatory manner, Klimczak alleges that it did not follow the disciplinary procedures set forth in the Agreement and that it arbitrarily altered his 

attendance records retroactively by changing previously excused absences to 

unexcused absences and by counting as "unexcused" absences 10 days that he was 

on workers' compensation in February, 1981. The record does in fact support 

the Complainant's contentions that at least some of his absences which had 

been excused under company policies then in effect were later converted to 

unexcused absences. Meehan so much as conceded that Klimczak could have 

successfully challenged these in a grievance proceeding. It also appears that 

Meehan relied upon even Mr. Klimczak's excused and partial absences in concluding that he had a bad attitude toward his work--another reason cited by Meehan 

for the discharge. 

While the use of these procedures may have been grossly unfair and indeed 

suggest that General may have been determined to use every means, fair or 

foul, to get rid of Mr. Klimczak, it does not in itself prove that General was 

determined to get rid of him because of his protected activities. Moreover, 

in spite of General's apparent reliance on a number of questionable "unexcused" absences I find that the Complainant did in fact have at least four 

unexcused absences during calendar year 1981. It is not disputed that his 

absences on April 4, April 11, and May 30, 1981, were unexcused. In addition 

I find for the reasons set forth below that Klimczak's absence on Friday, 

June 26, 1981, was also unexcused. Since that absence would have constituted 

the fourth unexcused absence for the calendar year sufficient cause for 

discharge would then have existed under the Agreement. ~/ 

Mr. Klimczak testified that on the morning in question he was scheduled 

to begin work at 7:00 a.m. He admittedly called in "late", i.e. around 9:00 

or 9:30 that morning, to report that he would be late for work. Since the 

Agreement requires the call to be made within one hour of the start of the 

shift, the absence here could, on that basis alone, be deemed an unexcused 

absence. In any event Klimczak claims that in this telephone call he talked 

to the company clerk, Wesley Lane, and told him that he "had to go get papers 

6/ I do not agree with the Complainant's contention that under Article II 

Section 4 of the Agreement the Respondent could not have discharged him without first warning or suspending him for his first three absences. He cites no 

interpretive authority for his position and as I read the Agreement the only 

procedural requirement for discharge on the basis of absenteeism (or any other 

reason) is the warning notice set forth in Article I Section 7 of the Agreement. Mr. Klimczak had received such notice on June 1, 1981 (Exhibit No. R-9). 

I note that Mr. Klimczak did not challenge this or any other aspect of his 

discharge under the grievance procedures set forth in the Agreement. 

688 
from the Compensation Board, and [his] car was broke down." 1/ 

Mr. Klimczak testified that he later appeared on the job but- only to pick up 

papers "for the Compensation Board" and to pick up his pay check to pay for 

his car repairs. 

Office clerk, Marcia N. Mott, testified that it was actually she who 

received Klimczak's phone call on the morning of June 26. Klimczak told her 

that he would be late because his car had broken down and that he would show 

up later that day. Ms. Mott passed this information to her supervisor Wesley 

Lane and, several hours later, around lunch time, she saw Klimczak come in and 

pick up his pay check. She noticed the smell of alcohol on his breath. 

Office Manager Wesley Lane, recalled being advised of Klimczak's telephone call. Later that day he saw Klimczak in the off ice talking with Superintendent Meehan. When Lane asked the Complainant if he was planning on 

working that day, he responded with a profanity. Lane also smelled alcohol on 

Klimczak's breath. In light of Klimczak's behavior, apparently influenced by 

alcohol, Lane assumed he would be unable to work. He accordingly marked 

Klimczak absent for the day. 

Superintendent Meehan came into the office around ten o'clock that 

morning. Klimczak was in the hallway ready to leave. He smelled of the odor 

of alcohol. Klimczak explained that he had called in because of car trouble 

and then proceeded to complain about the "incompetence" of the assistant superintendent. He then said to Meehan "when Sam [Mitrano] and Charlie [Solt] go 

on vacation I'll show you how dumb I am when something breaks down and needs 

to be fixed." Meehan interpreted this to mean that if something broke down at 

the plant Klimczak would not "oversucceed" himself to fix it even though he 

would be capable of doing so. The decision to dismiss Klimczak was made a 

short time after this confrontation. 

The Complainant argues that even if his absence on June 26 was otherwise 

unexcused, since he was subsequently awarded Worker's Compensation benefits 

corresponding to the time lost on that date, that absence could not under New 

York law be considered an "unexcused" absence. See Griffin v. Eastman Kodak 

Co., 436 N.Y.S. 2d 441 (1981) and LaDolce v. Regional Transit Serv. Inc., 429 

N.Y.S. 2d 505 0980). While it is undisputed that Mr. Klimczak had subsequently been awarded Workers' Compensation corresponding to a period of time 

including June 26, 1981, I find that to be irrelevant to the issue of whether 

he had complied with the requirements of the Agreement for an excused absence. 

By his own admission, he did not call his employer within one hour of the 

commencement of his shift as required. Moreover, when he did call, it is 

clear from the credible evidence that he reported only that he would be late 

1/ Inasmuch as Mr. Klimczak presented several contradictory versions of what 

he purportedly told Mr. Lane, that Mr. Lane and office clerk Marcia Mott testified that she, not Lane, actually received Klimczak's call, that Mr. Klimczak 

has shown some difficulty recalling this and other events, and that credible 

testimony from several other witnesses show that Mr. Klimczak may have been 

under the influence of alcohol that morning, I accord the testimony of other 

witnesses concerning the events on the morning of June 26th the greater 

weight. 

689 
for work and did not request an excused absence for the day. According to 

company policy his failure to report for work under these circumstances 

warranted an unexcused absence. Finally when he did later appear at the 

office, his condition was apparently so affected by alcohol that the time 

clerk considered him unable to work. His absence on June 26, 1981, may therefore be considered an unexcused absence. Since I have found that Mr. Klimczak 

failed to report to work on June 26 for reasons other than "work related" 

injuries, the cited New York law is, for this additional reason, inapposite. 

Accordingly, as of June 26, 1981, the Complainant had four unexcused absences 

within calendar year 1981 and, under the Agreement, sufficient cause then 

existed for his discharge independent of any other reason. 

The Complainant next alleges, as evidence of an unlawful motivation, that 

he was singled out for special disciplinary treatment because other employees 

had more absences over a shorter period of time but escaped without serious 

discipline. He first alleges that co-worker Richard L. Cowd was absent 

12 times in a 3-month period without ever having been disciplined. The 

uncontradicted testimony of Superintendent Meehan is, however, that those 

absences were excused and accordingly would not be considered towards 

disciplinary action. Complainant next cites the record of co-worker Miller, 

who reportedly missed 11 days over a 6-month period. Superintendent Meehan 

testified, again without contradiction, that Miller's absences were all 

excused and therefore, again, could not be used for disciplinary purposes. 

Finally, the Complainant cites the records of co-worker Wright, who admittedly 

did receive a warning letter for absenteeism. It is alleged that Wright had 

missed 8 days in February and March 1981 and had received an excused absence 

for Saturday, March 11. Meehan testified that even though Wright did in fact 

receive a warning letter, all of his absences had nevertheless been excused. 

Within this framework of evidence. I cannot conclude that Mr. Klimczak 

received discriminatory treatment vis-a-vis the other employees. Klimczak had 

clearly accumulated four unexcused absences as of the time of his discharge 

whereas the uncontradicted evidence shows that none of the other employees 

cited had accumulated any unexcused absences. 

The Complainant contends, finally, that unlawful motivation is shown in 

this case by the close proximity in time between the safety complaints and his 

discharge. It is a matter of record that the safety complaints were made in 

January, March, April, and May of 1981. However, the evidence shows that Complainant had received his first warning letter concerning absenteeism and work 

attitude as early as September 8, 1980, four months before his first safety 

complaint. While the second warning letter did come after two, and possibly 

three, of Klimczak's protected safety complaints, that letter also followed 

his unexcused absences on April 4 and 11. The third warning letter, dated 

June 1, 1981, also happened to follow another protected safety complaint (in 

May 1981) but this letter, just as the others, also followed another one of 

Klimczak's unexcused absences. In accordance with my findings (footnote 2 

supra.) there were no protected activities between the third warning letter 

and the letter of discharge issued June 29, 1981, but there was an unexcused 

absence on June 26, 1981. It would not be reasonable to infer from this inconclusive evidence that any causal relationship existed between the protected 

activities on the one hand and the warning letters and discharge on the other. 

690 
In summation, I do not find any direct nor sufficient circumstantial evidence of unlawful motivation in this case under section 105(c)(l) of the Act. 

While there is no doubt that those responsible for Mr. Klimczak's discharge 

were aware of his protected activities and there is evidence that some of Complainant's past absences may have been unfairly manipulated in building a 

record against him, I do not find these circumstances to be sufficient, in 

light of the other credible evidence, to establish a prima facie case. There 

were clearly a sufficient number of unexcused absence~this case to have 

warranted Complainant's discharge under the Agreement, there was no evidence 

that the Complainant was given less favorable treatment than other employees 

and no inferences can be drawn from the timing of the protected activities and 

the Complainant's discharge. 

Other grounds for discharge also existed which Meehan characterized as a 

bad work attitude. The evidence shows that Klimczak regularly failed to 

appear for Saturday work after agreeing to do so and he did not deny the evidence that he had a problem with alcohol that affected his work. Moreover the 

statement he made on June 26 to Meehan that "I'll show you how dumb I am when 

something breaks down and needs to be fixed," might reasonably be construed as 

a threat to subvert or sabotage company operations. 

Under all the circumstances, I do not find that the Complainant has met 

his burden of proving a prima facie case. Respondent has in any event.established credible "business justifications" to have discharged Mr. Klimczak 

exclusive of any protected act iv it ies and it is apparent that it would have 

discharged him for his unprotected activities alone. Pasula, supra. Accordingly, the complaint of unlawful discharge denied and this case is 

dismissed. , ~ 

-~ 

Law Judge 

Distribution: By certified 

Richard A. Dollinger, Esq., Zicari, Conville, Cooman & Morin, 

P.C., 25 East Main Street, Rochester, NY 14614 

Joseph E. Boan, Esq., Corporate Labor Relations Representative, Koppers 

Company, Inc., Pittsburgh, PA 15219 

691 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

APR i 2 \9tB 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, DOCKET NO. CENT 80-356-M 

v. 

JOHN H. MIDDLETON, 

Respondent. 

~~~~~~~~~~~~~~~~~~~~ 

Appearances: 

J. Phillip Smith, Esq., Office of the 

Solicitor, United States Department of Labor 

Arlington, Virginia 22203 

for the Petitioner 

John H. Middleton, appearing pro se, 

Lyons, Kansas 

for the Respondent 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor of the United States, the individual 

responsible with enforcing the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq., (the Act) charges John Middleton with violating 

Section llO(c) o~the Act. 

Section llO(c), now codified at 30 U.S.C. § 820(c), provides: 

(c) Whenever a corporate operator violates a mandatory health 

or safety standard or knowingly violates or fails or refuses 

to comply with any order issued under this Act or any other 

incorporated in a final decision issued under this Act, except 

an order incorporated in a decision issued under subsection (a) 

or section lOS(c), any director, officer, or agent of such 

corporation who knowingly authorized, ordered, or carried out 

such violation, failure, or refusal shall be subject to the 

same civil penalties, fines, and imprisonment that may be imposed upon a person under subsections (a) and (d). 

692 
The Secretary specifically charges John Middleton with knowingly 

authorizing! ordering, yr carrying out a corporate operator's violation of 30 

C.F.R. Section 56.9-3, _/ a mandatory safety standard adopted under the 

Act. 

After notice to the parties a hearing on the merits was held in Wichita, 

Kansas. 

The parties filed post trial briefs. 

Issues 

The issues are whether a violation of the Act occurred, and, if so, what 

penalty is appropriate. 

Applicable Case Law 

In Secretary of Labor v. Kenny Richardson, 3 FMSHRC 8 (1981), the 

Commission held section llO(c) of the Act to be constitutional and enunciated 

the critical elements which constit•\te a violation of this section. The 

corporate operator must first be found to have violated the Act. In 

addition, a violation occurs if a person in authority knows or has reason to 

know of the violative condition and fails to act on the basis of that 

information. 

The Commission adopted the rule that "knowingly" as used in the Act does 

not necessarily have any connotation indicating bad faith, evil purpose, or 

criminal intent. Rather, its meaning is the same as in contract law: knowing 

means having actual knowledge or having acquired sufficient facts that the 

person should have known of the condition. 3 FMSHRC at 16. 

Petitioner's Evidence 

Petitioner's witnesses included MSHA inspectors Elmer D. King and David 

P. Lilly. In addition, Richard Jones and Richard Brayton, employees of 

Tobias and Birchenough, Inc., (Tobias), at the time of the inspection 

testified in the case. 

On November 16, 1979 MSHA inspector Elmer King, a person experienced in 

mining, inspected an Allis Chalmers front end loader on the worksite of 

Tobias (King 7-9, 12, 19, 20; C2). 

The inspection was made after Dick Jones, Tobias' superintendent, called 

the MSHA Topeka office and complained the loader had no brakes (King 9, 10, 

17; Jones 44, 45). 

1/ The cited standard provides as follows: 

56.9-3 Mandatory. Powered mobile equipment shall be provided with 

adequate brakes. 

693 
King went to the site, checked the loader and found it had no brakes. 

King tested the loader. The brakes would not hold on an inc line or on an 

elevated roadway. He ran three tests in various operating modes. There 

were absolutely "no brakes" (king 10, 12, 23). The loader operator could 

not stop the vehicle other than by using forward and reverse gears. In this 

hazardous situation a loader could overturn and cause a severe injury or a 

fatality (King 21, 22, 26; Lilly 67, 68). 

King then issued an irmninent danger withdrawal order. He served it on 

John Middleton, Tobias' president (King 11, 12, 14, 20; Cl). 

Brayton, the loader operator, stated this was the only loader at the 

plant. Brayton was operating the loader on orders from John Middleton (King 

17, 24). The brakes had been inadequate for five or six weeks (Brayton 55). 

At the time of the November 16 inspection this loader, a powered mobile 

piece of equipment, was hauling sand and gravel to a stockpile (King, 14, 

16) • 

Jones and Brayton had complained to John Middleton that the loader 

needed brakes. The brakes were adjusted October 29, 1979 but the adjustment 

didn't take care of the problem and they were in worse condition on November 

16th (King 24, 25, 32; Jones 42, 43, 47; Brayton 52, 54, 57; Lilly 61, 62). 

The brakes were adjusted on both occasions by Sellers Tractor Company 

of Salina. The initial Sellers service report, dated October 29, states in 

part: "Also rebuilt master brake cylinder, and adjusted brakes best as 

possible. They are all fourn worn out" (Lilly 62-63; Exhibit C4). 

After the November 16 withdrawal order Sellers performed the following 

work on the loader; "Removed all four wheels and wheel cylinder. Cleaned up 

and had drum turned. Had to replace one new wheel cylinder. Rest were rust 

spotted and rough. Turned drums and new 5/16 lining with 1/8 shim lining. 

Put kit in one wheel cylinder. Checked planetaries and found one set of 

rear planetary shafts bad and one rear ring gear. Rest OK. New bearing and 

seals and assembled, adjusted and bled brakes. They worked OK. Had given 

through (sic) master cylinder before. Got good brakes'' (Exhibit CS). 

Before the November 11 inspection, and specifically on November 1st, 

the MSHA representative inspected this same loader. At that time he felt 

':l:le brakes were getting bad and should be repaired (King 27, 36, 37). At 

',at time Jones said he'd bring it to Middleton's attention (King 37). On 

vember 1st, the brakes held in the tests conducted by the inspector. But 

·;ey did not hold to the point where they were adequate (King 37). King, at 

'e hearing, opted that he should have withdrawn the equipment at that time 

· ::ing 37). 

At the conclusion of the November 1st inspection King told loader 

.perator Brayton that he would stop in Lyons and advise Middleton of his 

,:indings. But the inspector later changed his mind about contacting 

:1iddleton because Jones was identified as being in charge of safety and 

69t1 
health on Tobias' legal identity form (King 37-40). As a result the 

inspector didn't go to Lyons (at the home office, nine miles away) to 

discuss the situation with Middleton (King 39, 40, 49). 

The loader was never taken out of service after Jones complained to 

Middleton. While Jones wanted it withdrawn he didn't have the authority to 

go over John Middleton (Jones 44, 45). Middleton never told anyone the 

machine had to be operated but he knew it was in daily use (Jones 45). 

Tobias, a sand and gravel operation, sells its products to various 

places. Its products are used in the construction of public roads (King 13, 

14). 

The vehicle cited here, a 1971 model Allis Chalmers weighing 10 1/4 

tons, was manufactured in La Porte, Indiana (King 12, 13). 

Tobias, the corporate operator, paid a civil penalty for this 

violation. Payment was made at the assessment office level (King 25, 26). 

Respondent's Evidence 

John Middleton testified on his own behalf. 

The first information coming to John Middleton's attention about the 

brakes was when Richard Brayton told him he was having brake problems. The 

same day Middleton had superintendent Schwerdtfeger check the brakes. The 

superintendent reported there was a "brake problem" as well as a problem 

with the master cylinder (Middleton 72-74). 

Middleton called Sellers to do the repair work. After the service 

Middleton contacted Sellers foreman. The foreman confirmed the fact that 

the brakes needed repair. Middleton felt that the brakes were sufficient 

because Sellers has never been hesistant about advising Tobias if there were 

no brakes (Middleton 75-76). No further statements were made about the 

brakes to John Middleton until the imminent danger order was received on 

November 16 (Middleton 76-77). 

John Middleton takes exception to the claim that he was grossly 

negligent and that he endangered the life and limb of his workers (Middleton 

80). Middleton agrees there was a brake problem but he did not know the 

loader was without brakes (Middleton 80). 

Tobias is a medium sized sand and gravel operation producing annually 

20,000 yards of concrete. The company employs nine to thirteen workers 

(Middleton 78, 79, 81). 

Discussion 

The evidence in this case establishes a violation. Tobias and 

Birchenough, Inc., and its president, John Middleton knew or should have 

known the brakes were inadequate on or irmnediately after October 29. On 

that date Sellers, the brake repair service, adjusted the brakes. They said 

they couldn't be adjusted further and had to be repaired (King 49). In fact 

695 
the Sellers service report, dated October 29, states in part as follows: 

"Also rebuilt master brake cylinder and adjusted brakes best as possible. 

They are all four worn out" (Exhibit C-4). If all four brakes are "worn out" 

the braking system can hardly be said to be adequate. Middleton also knew on 

October 29th that there was such a problem. He was also advised of that fact 

by Brayton the loader operator and Jones, his foreman (Middleton 73, 74, 75). 

But nothing was done until the irnminent danger order was issued. 

John Middleton, both at the hearing and in his post trial brief, asserts 

he knew there was a brake problem but he didn't consider it imminently 

dangerous. Further, he did not knowingly ask anyone to risk life and limb 

(Middleton 85, 86, Brief), 

The test imposed by the regulation is whether the brakes were adequate. 

Since they were not and since John Middleton should have known of such 

inadequacy the citation should be affirmed. 

CIVIL PENALTY 

Section llO(i) of the Act, (30 U.S.C. 820(i)], provides as follows: 

The Commission shall have authority to assess all civil 

penalties provided in this Act. In assessing civil monetary 

penalties, the Connnission 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. 

The Secretary proposes a civil penalty of $500 for this violation. The 

statute authorizes a civil penalty not to exceed $10,000, 30 U.S.C. 820(a). 

In considering the statutory criteria I note that John Middleton does 

not have an adverse prior history. But John Middleton should have known of 

this condition and the gravity of the violation was severe. Concerning good 

faith it does appear that John Middleton abated in a rapid fashion after the 

events of November 16th. 

On balance I deem that the proposed civil penalty of $500 is 

appropriate. 

The Solicitor and John Middleton has filed post trial briefs which have 

been most helpful in analyzing the record and in defining the issues. 

However, to the extent they are inconsistent with this decision, they are 

rejected. 

Based on the foregoing findings of fact and conclusions of law I enter 

the following: 

696 
ORDER 

1. Citation 541426 and the proposed civil penalty of $500 are 

affirmed. 

2. Respondent is ordered to pay said penalty to the Secretary of Labor 

within 40 days of the date of this order. 

Distribution: 

J. Phillip Smith, Esq. 

Office of the Solicitor 

United States Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Mr. John H. Middleton 

President and Treasurer 

1103 South Saint John 

Lyons, Kansas 67554 

Law Judge 

697 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 APR 121983 

HOMESTAKE MINING COMPANY, 

Contestant, 

v. 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Respondent. 

) 

) CONTEST OF CITATION PROCEEDING 

) 

) DOCKET NO. CENT 80-416-RM 

) 

) Citation No. 329888 

) 

) MINE: Homestake 

) 

) ~~~~~~~~~~~~~~~~~~-

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

HOMESTAKE MINING COMPANY, 

Respondent. 

) CIVIL PENALTY PROCEEDINGS 

) 

) DOCKET NO. CENT 81-108-M 

) MSHA Case No. 39-00055-05048 

) DOCKET NO. CENT 81-109-M 

) MSHA Case No. 39-00055-05049 

) 

) MINE: Homestake 

) 

) 

) ~~~~~~~~~~~~~~~~~~-

DECISION 

Appearances: 

Eliehue C. Brunson, Esq., Office of the Solicitor 

United States Department of Labor 

911 W2lnut Street, Rocm 2106, Kansas City, Missouri 64106 

For the Petitioner 

Robert A. Amundsc~, Esq., Amundson & Fuller 

215 West Main, r~x 898 

Lead, South f (Ota 57754 

For the Respondent 

Before: .ge Virgil E. Vail 

STATEMENT OF THE CASE 

be first case listed in the caption above, Docket No. CENT 80-416-RM, 

is a .otice of contest filed by Homestake Mining Company, (hereinafter 

"Horr ;take"), pursuant to section lOS(d) of the Federal Mine Safety and 

Heci h Act, 30 U.S.C. 815(d), (hereinafter "the Act"), to challenge the 

vr dity of citation no. 329888 issued by an inspector of the Mine Safety 

698 
and Health Administration, (MSHA), for an alleged violation of 30 C.F.R. 

§ 57 .19-100 ( 1982). The citation alleged that the violation was of such a 

nature as could significantly and subtantially contribute to the cause and 

effect of a mine safety or health hazard and that there was an unwarrantable 

failure on the part of the contestant warranting action pursuant to 30 C.F.R. 

104(d)(l) of the Act. Subsequently, in Docket No. CENT 81-108-M, captioned 

above, the Secretary of Labor (hereinafter "the Secretary"), filed a petition 

proposing the assessment of penalties based upon eight citations 1; 

issued to Homestake including citation No. 329888 involved in Docket No. CENT 

80-416-RM. 

In Docket No. CENT 81-109-M, captioned above, the Secretary filed a 

petition proposing the assessment of a penalty pursuant to section 104(a) of 

the Act based upon citation no. 567066 issued to Homestake alleging a 

violation of 30 C.F.R. § 57.12-6. 

These three cases were consolidated and a hearing was held in Lead, 

South Dakota. At the conclusion of the hearing, the parties waived closing 

arguments and agreed to submit post hearing briefs following receipt of the 

transcript. 

MOTIONS TO DISMISS 

At the hearing, the Secretary moved to withdraw the unwarrantable 

portion of citation No. 329888 under section 104(d)(l) of the Act and amend 

the type of action to a 104(a) designation and continue with the contention 

that significant and substantial allegation would still apply. The Secretary 

contended that the evidence did not support the allegations in the citation 

that past violations of the same standard existed. Homestake agreed to the 

withdrawal of the unwarrantable designation in citation No. 329888 and that 

the remaining issue for trial was the proposed penalty assessment proceeding 

contained in Docket No. CENT 81-108-M. This motion was approved. 

Based upon approval of 

No. 329888 to a 104(a) type 

of contest action thereto. 

was dismissed (Tr. at 8-9). 

the motion by the Secretary to amend citation 

of action, Homestake moved to withdraw its notice 

This was granted and Docket No. CENT 80-416-RM 

After receipt of the transcript of the hearing, the Secretary filed a 

post trial motion to vacate seven of the eight citations included in Docket 

No. CENT 81-108-M and the one citation included in Docket No. CENT 81-109-M. 

The basis for this motion was that a review of the testimony and exhibits 

produced at the hearing did not support the allegations contained in these 

seven citations. On January 3, 1983, Homestake filed a motion of concurrence. Based upon the representations of the parties, a review of the 

1/ Citation Nos. 567059, 567060, 567061, 567062, 567063, 567064, 567065, and 

329888. 

699 
evidence, and a belief that the public interest will be served, the motion of 

the Secretary. is approved and the following citations are vacated: 

Docket No. CENT 81-108-M 

Citation No. 

00567059 

00567060 

00567061 

00567062 

00567063 

00567064 

00567065 

Standard Violated 

57.12-2 

57.12-2 

57.12-2 

57.12-2 

57.12-2 

57.12-2 

57.12-2 

Docket No. CENT 81 ~~q-M 

Citation No. 

00567066 

Standard Violated 

57.12-6 

Also Docket No. CENT 81-109-M is dismissed. 

Docket No. 81-108-M 

ISSUES 

The remaining issues to be decided in this case involved the one 

citation No. 329888 and whether respondent violated 30 C.F.R. § 57.19-100 of 

the Act, and, if so, the appropriate civil penalty that should be assessed 

based upon the criteria set forth in section llO(i) of the Act. 

STIPULATIONS 

At the hearing, the parties agreed to the following stipulations which 

were accepted (Tr. 7): 

1. Homestake Mining Company is the operator of the gold mine at Lead, 

South Dakota. 

2. Homestake is subject to the jurisdiction of the Federal Mine Safety 

and Health Act. 

3. Homestake's ability to continue in business would not be effected by 

the assessment of a reasonable penalty in this case. 

4. Homestake has been issued prior citations, the number to be reported 

in a printout furnished by the Secretary. This was to be reviewed by the 

parties and concurrences as to the total was to be agreed upon. 

5. Homestake is considered a large gold mining company. 

700 
DISCUSSION 

On September 13, 1980, during an inspection of respondent's mine, MSHA 

inspector Jeran Sprague issued citation No. 329888 which stated as follows: 

A Safety Gate was not installed on the 5300 Level shaft 

landing in the #6 shaft man cage compartment. There are 

two 3 x 12 inch boards across the landing but the station 

is wet and a person could slip and fall between the boards 

which are approx. 3' feet apart. Electricians and shaftmen 

use the level or occasional basis to check equipment. On 

the level is a water storage tank and electrical power box, '!:_! 

Petitioner contends that respondent's failure to have an adequate safety 

gate at this location violates 30 C.F.R. § 57.19-100 which provides as 

follows: 

Mandatory. Shaft landings shall be equipped with substantial 

safety gates so constructed that materials will not go through 

or under them; gates shall be closed except when loading or 

unloading shaft conveyances, 

Petitioner argues in his post hearing brief that the hazard presented 

here was that miner could fall into the shaft causing a fatal injury. Such a 

fall would be approximately 2000 feet or more to the bottom of the shaft, It 

is contended that the violation should have been obvious to the respondent as 

all of the other landings in the number 6 shaft had an adequate gate, 

Respondent argues that the area cited by the inspector is not a shaft 

landing as designated to be covered in standard 57.19-100 but is a "cut out." 

Further, respondent argues that the cited standard does not address itself to 

the possibility of a miner falling into the shaft but instead requires a 

substantial gate to prevent materials from falling into the shaft. 

The evidence of record shows that the area involved in citation 

No. 329888 was located at the 5300 foot level in the number 6 shaft and 

consisted of a room cut out of the wall of the shaft approximately 14 feet 

deep by 14 feet wide and 10 feet high. This area was used by respondent for 

the placement of a water tank and two junction boxes for power cables, At 

the opening to the shaft, two 2 x 10 foot wooden boards had been placed 

horizontially across the opening, One board was located at the bottom or 

2/ The balance of the description in the body of this citation is not 

pertinent due to the motion by the Secretary to amend which was granted. 

701 
floor level whereas the other was approximately 27 3/4 inches higher. 

Permanent lighting was not installed at this landing to illuminate the area 

and miners used their miners' lights when they visited this location. A 

pipeman would stop at this landing one or two times a month to check the 

valves and float in the water tank. During the time the pipeman was checking 

the water tank, the man cage would wait for him. A telephone or call horn 

has not been installed in this area as is required and used at all shaft 

stations where work is performed on a regular basis. 

The threshold issue to be decided is whether the area cited is a shaft 

landing as contemplated by mandatory standard 57.19-100. The regulations do 

not define what constitutes a shaft landing. It does indicate that it is a 

landing in a shaft where men and material are loaded and unloaded from a 

shaft conveyance. However, the Bureau of Mines, U.S. Department of Interior, 

A Dictionary of Mining, Minerals, and Related Terms (1968), defines "shaft" 

and "landing" as follows: 

Shaft. An excavation of limited area compared with its depth, 

made for finding or mining ore or coal, raising water, ore, 

rock, or coal, hoisting and lowering men and materials, or 

ventilating underground workings. (Emphasis added). 

Landing. A level stage in a shaft at which cages are loaded and 

discharged. Fay c. The mouth of a shaft where the cages are 

unloaded; any point in the shaft at which the cage can be loaded 

with men or materials; (Emphasis added). 

Admittedly, the area cited here was not a location in the number six 

shaft where the man cage stopped frequently or where materials were loaded 

and unloaded on a frequent basis. However, the area had to be inspected by 

miners on a regular if infrequent schedule and applying the definitions 

stated above to the fact that the man cage in the number 6 shaft stopped at 

this landing to load and unload miners, I find this area cited to be a shaft 

landing. 

The next issue to be considered is the argument by respondent that 

safety of miners in the landing as described by the inspector in the citation 

he issued is not the hazard comtemplated by the standard alleged to be 

violated. The inspector described how miners could slip and fall through the 

wooden barricades placed across the opening and fall in the shaft a distance 

of 2000 feet. The standard contemplates substantial safety gates so that 

material will not go through them. It does not mention miners falling into 

the shaft. The inspector in his description of the hazard does not mention 

the risk of materials going through the gates into the shaft. In his 

testimony at the hearing the inspector stated that the hazard here was of a 

miner slipping on the wet surface and falling through the boards installed 

across the opening. He did not testify as to materials falling through the 

gate into the shaft. 

702 
In light of the foregoing, I find that the Secretary has failed to prove 

that the respondent violated standard 57.19-100 in this case. The clear 

wording of the standard is directed towards a hazard of constructing 

substantial gates to prevent material from falling into the shaft. See 

United Nuclear Homestake Partners, 2 FMSHRC 24891 (September, 1980) (ALT) 

Also Magma Copper Company, 3 FMSHRC 584 (February 1981) (ALJ). There is no 

indication that such a gate is to be installed for the purpos_e of also 

preventing a miner from falling in the shaft. Even assuming, however, that 

the gate would also serve this purpose, that is not the hazard described in 

the standard. This raises the question of how broad an interpretation can be 

given to the regulations by the adjudicator. In the case of Sunshine Mining 

Co., 1 FMSHRC 1535, (October 1979) (ALJ), Judge Koutras considered a similar 

set of facts and reached the conclusion that standard 57.19-100 applies to 

the installation of gates to prevent materials from falling into the shaft 

but that the wording of the standard does not prescribe protection to prevent 

miners from falling. Judge Koutras stated as follows: 

It seems to me that if MSHA desires to protect miners from 

falling into a shaft at any such mine locations, it should 

vigorously enforce the existing safety belt and line standard 

And, if MSHA desires to prevent both men and materials at the 

skip and loading stations or pockets from falling into mine 

shafts, it should promulgate a clear and concise safety standard 

covering precisely that situation. 

I concur with this conclusion and find from the facts and circumstances 

presented in this case that citation No. 329888 should be vacated for the 

reason that the Secretary has not proven by a preponderance of the evidence 

a violation thereof. 

CONCLUSIONS OF LAW 

Pursuant to the findings in this matter, it is concluded that: 

(1) The Commission has jurisdiction to decide this matter. 

(2) The area containing the water tank and junction boxes at the 5300 

foot level in shaft six is a shaft landing in the respondent's mine. 

(3) The hazard described by the mine inspector in his testimony and 

also in citation no. 329888 at the shaft landing at the 5300 level in shaft 

six did not constitute a violation of standard 57.19-100. 

(4) Citation No. 329888 sho~ld be vacated. 

ORDER 

Based on the foregoing findings of fact and conclusions of law, I enter 

the following: 

703 
1. Docket No. CENT 80-416-M: 

Motion of respondent to withdraw its notice of contest is APPROVED 

and case No. CENT 80-416-M is DISMISSED. 

2. Docket No. CENT 81-108-M: 

Post hearing motion by the Secretary to vacate the following 

citations is APPROVED and Citation Nos. 567059, 567060, 567061, 567062, 

567063, 567064 and 567065 are VACATED. 

Further, based upon the above findings of fact and conclusions of law 

Citation No. 329888 is VACATED. 

3. Docket No. CENT 81-109-M: 

Post hearing motion by the Secretary to vacate Citation No. 567066 

is APPROVED and Citation No. 567066 is VACATED. 

Distribution: 

VirgiJ;XVclil 

Administrative Law Judge 

Eliehue C. Brunson, Esq., Office of the Solicitor 

United States Department of Labor, 911 Walnut Street, Room 2106 

Kansas City, Missouri 64106 

Robert A. Amundson, Esq., Amundson & Fuller 

215 West Main, Box 898 

Lead, South Dakota 57754 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

APR 15 1983 

SECRETARY OF LABOR, Civil· -Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

·Petitioner 

v. 

ALLIANCE OF PUCKETT COAL COMPANY, 

INC., 

Respondent 

Docket Nos. Assessment Control Nos. 

KENT 82-94 

KENT 82-95 

KENT 82-96 

15-06778-03011 

15-06778-03012 

15-06778-03013 

Rice Harlan Mine 

DECISION APPROVING SETTLEMENT 

Appearances: Darryl A. Stewart, Esq., Office of the Solicitor, 

United States Department of Labor; 

Carson Shepherd, General Superintendent, RB Coal 

Company, Pathfork, Kentucky. 

Before: Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued February 9, 1983, as amended 

March 4, 1983, a hearing was held in the above-entitled proceeding on 

March 15, 1983, in Barbourville, Kentucky, under section 105(d), 30 U.S.C. 

§ 815(d), of the Federal Mine Safety and Health Act of 1977. 

Evidence was submitted at the hearing with respect to one alleged violation of the mandatory heal.th and safety standards. I found that a violation had occurred and assessed a penalty of $25.00 based on the evidence 

introduced by both petitioner and respondent (Tr. 5-35). Thereafter the 

parties negotiated a settlement under which respondent agreed to pay reduced 

penalties amounting to $1,957 instead of the penalties of $3,633 proposed 

by the Assessment Office. 

Section llO(i) of the Act lists six criteria which are required to be 

considered in assessing civil penalties. Two of those criteria, the size 

of respondent's business and whether the payment of penalties would cause 

respondent to discontinue in business, are the primary factors which support 

acceptance of the parties' settlement agreement. Respondent was represented 

at the hearing by Mr. Carson Shepherd, who is general superintendent of RB 

Coal Company. Mr. Shepherd testified that the respondent in this proceeding, 

Alliance of Puckett Coal Company, is a contract operator owned by RB Coal 

Company. The facilities operated by RB Coal Company consist of three mines, 

a washing or cleaning plant, and a raw coal tipple. At the time of the hearing one of the mines had been shut down for 3 weeks, another one had been 

closed for 6 months, and the third one was working only 1 day each week. 

The small amount of coal being sold is on the basis of a spot market and 

RB Coal Company is "just tryimg to survive right now" (Tr. 44). 

705 
The respondent in this proceeding began operating the Rice Harlan Mine 

in September 1981 and the coal seam ranges from 2 to 36 inches in height 

(Tr. 23-24). The low range of 2 inches occurs when respondent encounters 

faults comprised of rock which has to be extracted at high cost until an 

increased thickness of the coal seam is exposed. Even when conditions were 

good and coal was being produced on two working shifts, the mine produced 

only 100 tons of coal per shift (Tr. 28; 32). 

Exhibit No. 1 was introduced by counsel for the Secretary of Labor for 

the purpose of showing respondent's history of previous ·violations (Tr. 4). 

Normally the Secretary shows a respondent's history of previous violations 

for the 24-month period preceding the occurrence of the violations involved 

in a given proceeding. Respondent, however, did not begin to operate the 

Rice Harlan Mine here involved until September 1981 and the earliest violations in this proceeding were not cited until December 1981. In such circumstances, Exhibit 1 could not list violations occurring 24 months prior to 

December 1981. Exhibit 1, therefore, simply lists the same 34 violations 

for which penalties are sought to be assessed in this consolidated proceeding. In light of the facts described above, I find that respondent has no 

history of previous violations to be considered in deriving penalties for 

the violations alleged in this proceeding. 

In determining the proposed penalties under the penalty formula described 

in 30 C.F.R. 100.3, the Assessment Office did not assign any penalty points 

under the criterion of history of previous violations as to the alleged violations involved in Docket Nos. KENT 82-94 and KENT 82-95. Although the 

Assessment Office assigned 15 penalty points under the criterion of histbry 

of previous violations in determining the penalties proposed for the six 

violations involved in Docket No. KENT 82-96, that assignment of points was 

done under the old penalty formula effective prior to May 21, 1982, which 

included in the prior history any violations for which penalties had been 

proposed by the Assessment Office, whereas the current formula includes in 

the prior history only those violations which have been paid or finally adjudicated. None of the violations listed in Exhibit 1 in this proceeding 

have been paid or finally adjudicated. In such circumstances, I believe 

that it is inappropriate to attribute any portion of the penalties determined in this proceeding to the criterion of history of previous violations. 

As to the criterion of whether respondent demonstrated a good-faith 

effort to achieve rapid compliance, the Assessment Office found that all of 

the violations were abated within the time provided for by the inspector, 

or within the "normal" period described in section 100.3(f) of the previously effective penalty formula, with two exceptions. The first exception 

to normal good-faith abatement occurred with respect to a violation alleged 

in Docket No. KENT 82-94 when the inspector issued Withdrawal Order No. 

994723 because respondent failed to abate Citation No. 1100507 within the 

time given by the inspector. In that case, the Assessment Office assigned 

10 additional points for respondent's failure to abate in a timely manner 

and the parties' settlement agreement does not propose any reduction in the 

Assessment Office's proposed penalty of $325 for the violation of section 

75.400 charged in Citad,on No. 1100507. ·1 

706 
The other exception to "normal" good-faith abatement occurred in connection with the proposal for assessment of civil penalty filed in Docket 

No. KENT 82-95 in which a penalty is sought for the violation of section 

75.301 alleged in Citation No. 994729. In that case, the Assessment Office 

reduced by two the penalty points otherwise assignable under the other five 

criteria because respondent had abated the alleged violation within a much 

shorter period than had been allowed by the inspector. The parties' settlement agreement reduces the proposed penalty for the violation of section 

75.301 alleged in Citation No. 994729 to $25 from the·penalty of $90 proposed by the Assessment Office for reasons other than good-faith abatement. 

In such circumstances, I find that no penalty assessed in this proceeding 

under the other five criteria should be further reduced or increased under 

the criterion of respondent's good-faith effort to achieve compliance because 

the only two variances from "normal" abatement were taken into consideration 

by the Assessment Office when it reached the proposed penalties which are 

being evaluated in this proceeding. 

The remaining two criteria of gravity and negligence will hereinafter 

be examined in a brief evaluation of the specific violations alleged in this 

proceeding. 

Docket No. KENT 82-94 

The proposal for assessment of civil penalty filed in Docket No. KENT 

82-94 seeks assessment of penalties for 20 alleged violations of the mandatory health and safety standards. Six of the 20 citations involved alleged 

violations for failure to clean up loose coal and coal dust or apply adequate amounts of rock dust, five of the 20 citations alleged various types 

of failures to ventilate properly, four citations alleged failure to record 

various kinds of inspections of equipment or hazardous conditions, one citation alleged failure to install adequate roof supports, one citation alleged 

failure to ground equipment, one citation alleged failure to guard a tailpiece roller, one citation alleged failure to install a fire-warning device, 

and one citation alleged failure to maintain a starting box in a permissible 

condition. 

The Assessment Office proposed penalties totaling $1,906 for all 20 

violations, whereas the parties agreed to a settlement amount of $1,077. 

Counsel for the Secretary of Labor moved that the proposal for assessment 

of civil penalty be dismissed as to the violation of section 75.1704-2(e) 

alleged in Citation No. 1212377 because he believed that tha wrong section 

of the regulations had been cited. The violation was for respondent's failure to record the results of fire drills in an approved book. The Secretary's 

counsel correctly concluded that section 75.1704-2(e) does not require that 

the results of such drills be recorded in an approved book. Therefore, the 

motion to dismiss with respect to the violation alleged in Citation No. 

1212377 will hereinafter be granted. The Assessment Office assigned an 

appropriate number of penalty p9ints for each alleged violation under the 

criteria of gravity and negligence. 

As hereinbefore indicated, the parties did not propose any reduction 

in the penalty of $325 proposed for the violation of section 75.400 alleged 

707 
in Citation No. 1100507 because the relatively large assessment in that 

instance resulted from respondent's failure to abate the alleged violation 

within the time allowed by the inspector who issued a withdrawal order for 

what he considered to be a lack 'of a good-faith effort to achieve rapid 

compliance. The parties' settlement reductions are justified on the basis 

of respondent's evidence showing its lack of coal orders and the fact that 

the mine operates for only 1 day each week. 

Docke~ No. KENT 82-95 

The proposal for assessment of civil penalty filed in Docket No. KENT 

82-95 seeks assessment of penalties for eight alleged violations of the 

mandatory health and safety standards. The Assessment Office proposed penalties totaling $468 for the eight violations, whereas the parties have 

agreed to a settlement total of $285. Each of the eight alleged violations 

involves a different mandatory health or safety standard. One of the citations alleged a failure to take a respirable dust sample, one citation 

alleged a lack of adequate ventilation at the last open crosscut, one citation alleged a failure to record preshift examinations in an approved book, 

one citation alleged a failure to apply an adequate amount of rock dust, one 

citation alleged a failure to hang communication wires on insulators, one 

citation alleged a failure to install a water line for a distance of 400 

feet, one citation alleged a failure to install a sequence switch on the 

conveyor belt, and one violation alleged a failure to guard a tail roller. 

Both parties presented evidence with respect to the violation of section 70.208(a) alleged in Citation No. 9934995 prior to the time they 

reached their settlement agreement. After the parties had completed their 

presentations with respect to the violation of section 70.208(a), I found 

that a violation of section 70.208(a) had occurred and I assessed a penalty 

of $25.00 based on findings that the violation was nonserious, that respondent operated a small mine, and that the violation was associated with 

ordinary negligence. I also took into consideration the fact that respondent had hired a new employee whose duties include taking samples of respirable dust at the required intervals. The findings as to respondent's 

size and whether the payment of penalties would cause it to discontinue in 

business have already been discussed and support my assessment of a penalty 

of $25 for the violation of section 70.208(a) alleged in Citation No. 

9934995. 

The Assessment Office proposed two penalties of $72 each for the violation of section 75.1100-2(b) alleged in Citation No. 994726 and for the 

violation of section 75.1102 alleged in Citation No. 994731. The parties' 

settlement agreement does not reduce either of the $72 penalties. The 

Assessment Office proposed a penalty of $26 for the violation of section 

75.516-2(a) alleged in Citation No. 994727 and the parties' settlement 

agreement does~:not provide for a reduction in that penalty either. The 

Assessment Office assigned an appropriate number of penalty points under 

the criteria of gravity and negligence. As to the remaining four alleged 

violations, the parties agreed to reductions of about 50 to 60 percent. 

The reductions are justified by respondent's small size and the difficulties it is encountering in selling enough coal to remain in business. 

708 
Docket No. KENT 82-96 

The proposal for assessment of civil penalty filed in Docket No. KENT 

82-96 seeks assessment of penalties for six violations of the mandatory 

health and safety standards. Two of the citations alleged violations for 

respondent's failure to reset timbers·-which had been knocked down for 700 

and 1,200 feet, respectively, in two different entries, one citation alleged a violation for respondent's failure to install permanent stoppings, 

as opposed to temporary stoppings made of brattice cloth, between the return 

and intake aircourses in the third crosscut outby the working faces, one 

citation alleged a violation for respondent's failure to maintain a scoop 

in a permissible condition, one citation alleged a violation for failure to 

install an automatic fire-warning device, and one citation alleged a violation for failure of a section foreman to provide himself with a self-rescue 

device. The Assessment Office proposed penalties totaling $1,259 for all 

six violations, whereas the parties have agreed to settlement penalties 

totaling $595. 

As hereinbefore indicated, the Assessment Office proposed relatively 

small penalties in connection with the violations alleged in Docket Nos. 

KENT 82-94 and KENT 82-95. The primary reason for the moderate penalties 

proposed in Docket Nos. KENT 82-94 and KENT 82-95 is that the Assessment 

Office assigned no penalty points at all in those two dockets under the 

criterion of respondent's history of previous violations. On the other 

hand, the penalties proposed by the Assessment Office in Docket No. KENT 

82-96 are based on assignment of 15 penalty points under the criterion of 

respondent's history of previous violations pursuant to section 100.3(c) 

of the penalty formula which was in effect prior to May 21, 1982. The sole 

basis for assigning those 15 penalty points is that the inspector cited 

more than 1.7 violations during an inspection day. The penalty formula in 

use prior to May 21, 1982, relied on penalties proposed for any violations 

which had been written during the 24-month period preceding the violation 

under consideration by the Assessment Office. The penalty formula currently 

in use bases the assignment of penalty points for an operator's history of 

previous violations only on violations for which penalties have been paid or 

fully adjudicated. Exhibit 1 in this proceeding shows that none of the penalties proposed for respondent's alleged violations have been paid or fully 

adjudicated. Therefore, I believe that the penalties proposed by the Assessment Office in Docket No. KENT 82-96 are unwarrantably high because of the 

Assessment Office's assignment of 15 penalty points under the criterion of 

history of previous violations. If 15 points were to be subtracted from the 

total penalty points used by the Assessment Office in deriving the penalties 

proposed for the six alleged violations at issue in Docket No. KENT 82-96, 

all of the penalties proposed by the Assessment Office would be reduced considerably below the amounts which respondent has agreed to pay pursuant to 

the parties' settlement agreement without any adjustment being necessary 

with respect to assignment of penalty points under the criteria of negligence and gravity. 

When consideration is given to'respondent's present difficulties in 

remaining in business, the reductions agreed upon by the parties are justified. When those reduced penalties 1

are additionally considered in light of 

709 
the Assessment Office's above-described assignment of 15 points under the 

criterion of history of previous violations, it is quite apparent that the 

reductions agreed upon are clearly justified under the six criteria hereinbefore considered. 

WHEREFORE, it is ordered: 

(A) The motion to dismiss made by counsel for the Secretary of Labor 

with respect to the violation of section 75.1704-2(e) alleged in Citation 

No. 1212377 dated December 7, 1981, is granted and the proposal for assessment of civil penalty filed in Docket No. KENT 82-94 is dismissed to the 

extent that it seeks assessment of a civil penalty for the violation of section 75.1704-Z(e) alleged in Citation No. 1212377 dated December 7, 1981. 

(B) Th~ motion for approval of settlement made by counsel for the 

Secretary of Labor at the hearing held in this proceeding on March 15, 1983, 

is granted and the parties' settlement agreement described at transcript 

pages 36 through 43 is approved. 

(C) Pursuant to the parties' settlement agreement and the assessment 

of $25 made by me on the basis of evidence presented by the parties at the 

hearing, respondent shall, within 30 days from the date of this decision, 

pay civil penalties totaling $1,957.00 which are allocated tc.the respective 

alleged violations as follows: 

Docket No. KENT 82-94 

Citation No. 1212377 12/7/81 § 75.1704-2(e) •• (Dismissed) •.. 

Citation No. 1212378 12/7/81 § 75.512 . ..................... Citation No. 1212379 12/7/81 § 75.507 . ..................... Citation No. 1212380 12/7 /81 § 75.703 . ..................... Citation No. 1099706 12/9/81 § 75.400 . ..................... Citation No. 1099707 12/9/81 § 75.400 . ..................... Citation No. 1099708 12/9/81 § 75.1722 . .................... Citation No. 1099709 12/ 10/81 § 75.326 . .................... Citation No. 1099710 12/10/81 § 75.329-1 . .................. Citation No. 1099801 12/15/81 § 75.400 . .................... Citation No. 1099802 12/15/81 § 75.503 . .................... Citation No. 1099803 12/15/81 § 75.202 . .................... Citation No. 1099805 12/15/81 § 75.1103 . ................... Citation No. 1099807 12/15/81 § 75.326 . .................... Citation No. 1099713 12/17/81 § 75.403 . .............. ·• ..... Citation No. 1099714 12/17/81 § 75.403 . .................... Citation No. 1100507 1/12/82 § 75.400 . ..................... Citation No. 1100500 1/12/82 § 75.300 . ..................... Citation No. 1100509 1/12/82 § 75.512 . ..................... Citation No. 2200520 1/12/82 § 75.1704-2(c) (1) . ............ Total Settlement Penalties in Docket No. KENT 82-94 ........ 

710 

I 

$ 0.00 

20.00 

20.00 

20.00 

100.00 

40.00 

30.00 

60.00 

20.00 

42.00 

20.00 

42.00 

98.00 

30.00 

50.00 

100.00 

325.00 

20.00 

20.00 

20.00 

$1,077.00 

/ 

I 

I 
Docket No. KENT 82-95 

Citation No. 1100511 1/12/82 § 75.303 . .................... $ 20.00 

Citation No. 994726 1/20/82 § 75.1100-2(b) . ............... 72.00 

Citation No. 994727 1/20/82 § 75.516-2(a) . ................ 26.00 

Citation No. 994728 1/20/82 § 75.1722 . .................... 20.00 

Citation No. 994729 1/20/82 § 75.301 . ..................... 25.00 

Citation No. 994731 1/20/82 § 75. 1102 . .................... 72.00 

Citation No. 994732 1/21/82 § 75.403 . ..................... 25.00 

Citation No. 9934995 2/17/82 § 70.208(a) (Contested) . ... ·• . 25.00 

Total Settlement and Contested Penalties in Docket No. 

KENT 82-95 .............................................. $ 285.00 

Docket No. KENT 82-96 

Citation No. 994721 1/14/82 § 75.503 . ...................... $ 40.00 

Citation No. 994722 1/14/82 § 75.1103 . .................... 60.00 

Citation No. 1100516 1/14/82 § 75.202 . .................... 175.00 

Citation No. 1100518 1/14/82 § 75.316 . .................... 125.00 

Citation No. 1100519 1/14/82 § 75.202 . .................... 175.00 

Citation No. 1100520 1/14/82 § 75.1714 . ................... 20.00 

Total Settlement Penalties in Docket No. KENT 82-96 . ...... $ 595.00 

Total Settlement and Contested Penalties in This 

Proceeding .. ..... !" •. • • • ... • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • $1, 9 5 7. 00 

Distribution: 

Richard 

~e.J~ C. Steffey~ Administrative Law Judge 

(Phone: 703~756-6225) 

Darryl A. Stewart, Esq., Office of the Solicitor, U. S. Department 

of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Alliance of Puckett Coal Company, Inc., Attention: Anita Day, Safety 

Director, General Delivery, Pathfork, K~ 40863 (Certified Mail) 

Carson Shepherd, General Superintendent, RB Coal Company, General 

Delivery, Pathfork, KY 40863 (Certified Mail) 

711 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11 /12 APR 18 lln 

CARL AMBURGEY, 

Complainant 

Complaint of Discrimination 

v. 

BRIGHT COAL COMPANY, 

Respondent 

Docket No. KENT 82-141-D 

DECISION 

Appearances: Carl Amburgey, Whitesburg, Kentucky, pro se; Ronald G. Polly, 

Esquire, Whitesburg, Kentucky, for the respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

This proceeding concerns a discrimination complaint filed by the 

complainant with the Commission pursuant to section 105(c)(3) of the 

Federal Mine Safety and Health Act of 1977. Complainant Carl Amburgey 

asserts that he was discharged from his employment with the respondent 

because he refused to drive a scoop which he believed was unsafe because 

it would not steer. The complaint was filed pro se after Mr. Amburgey 

was advised by the Secretary of Labor, Mine Safety and Health Administration, 

(hereinafter MSHA), that its investigation of his complaint disclosed no 

discrimination against him by the respondent. 

By notice of hearing duly served on the parties, a hearing was conducted 

in this matter in Pikeville, Kentucky, on February 23, 1983, and the parties 

appeared and participated fully therein. Testimony and evidence was taken 

on the record, and the parties made oral arguments on the record in support 

of their respective positions. They waived the filing of any post-hearing 

proposed findings, conclusions, and briefs. 

Issues 

The critical issue presented in this case is whether Mr. Amburgey's 

discharge was prompted by protected activity under section 105(c)(l) of 

the Act. Specifically, the crux of the case is whether Mr. Amburgey's 

refusal to continue operating a scoop because he believed it was unsafe 

due to an alleged problem with the steering is protected activity under the 

Act. Additional issues raised in this case are identified and discussed 

in the course of the decision. 

712 I 

' 

' I 
Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safet~. and Health Act of 1977, 30 U.S.C. § 301 

et~· 

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. Connnission Rules, 29 CFR 2700.1, et ~· 

Discussion 

The record in this case reflects that at the time of the discharge 

on December 30, 1981, the complainant was employed as a scoop operator 

at an hourly wage of $9. 00. The Bright Number 9 Mine is a nonunion mine·, 

and the company fringe benefits are limited to payment of employee 

hospitalization benefits. The record also reflects that the complainant 

worked at the mine in question for approximately three months up to the 

date of discharge, but prior to that time worked at other mines operated 

by the respondent, and that his total period of employment prior to his 

discharge was eight months. The complainant advised that since his 

discharge, he has been continually employed with another coal mine operator, 

and has been so employed since February 1982 (Tr. 2-5; 39). 

Complainant's testimony and evidence 

Complainant Carl Amburgey testified that on the morning of December 30, 1981, 

while operating a scoop on the section at approximately 7:15 a.m., he had 

difficulty manuevering his scoop into a cut of coal because "the scoop 

just wouldn't steer into the cut", and he informed assistant underground 

foreman James Noble of that fact. Mr. Nobel responded "you couldn't 

drive it if it was a brand new car", and ordered him out of the mine by 

telling him "well, just go to the outside. We don't need you nohow". 

Mr. Amburgey then left the section and told general mine foreman Jack Collins 

about the incident (Tr. 13-14). Mr. Collins asked him if he had quit 

his job, and Mr. Amburgey stated that he did not respond. At approximately 

9:30 a.m., the mine fan went off and all the miners were sent home. He 

then called mine owner Jim Hogg and asked for his job back. Mr. Hogg 

informed him that Mr. Collins told him (Hogg) that he caught Mr. Amburgey 

and fellow miner Clifford Gilbert sitting at the section loading point 

not doing their job, and as a result of this "lie", Mr. Amburgey filed his 

discrimination complaint with MSHA (Tr. 14). 

Mr. Amburgey testified that he took Mr. Noble's instruction to "get 

to the outside" to mean that he had been fired, but he did not know 

whether Mr. Noble had the authority to fire him. Mr. Amburgey confirmed 

that he did not answer Mr. Collin when he asked him whether he had quit, 

and had the mine not been idled he would have tried to find a way home 

(Tr. 16). Mr. Amburgey also confirmed that when he called Mr. Hogg, he 

(Hogg) informed him that he was told that Mr. Collins was the person who 

had fired him (Tr. 17). 

713 
Mr. Amburgey confirmed that he had operated the scoop in question during 

the time he was employed at the Bright No. 9 Mine, and he filed his 

complaint because he believed his discharge was illegal. He also confirmed 

that he received unemployment benefits until February 1982 when he obtained 

other employment (Tr. 18). 

On cross-examination, Mr. Amburgey confirmed that there were three 

scoops on the section where he worked, and he operated them at different 

intervals. As to his operation of the particular scoop which he claims 

had a steering problem, he could not state how often he operated it prior 

to December 30, but indicated that it was "once or twice" (Tr. 20). He 

stated that he had encountered steering problems with the scoop two or 

three weeks prior to that date, but the problem was taken care of (Tr. 22). 

He confirmed that an MSHA inspector was at the mine on December 30, but 

he did not check the scoop in question (Tr. 24). 

Mr. Amburgey testified that the scoop he was operating on December 30, 

would not steer in the corner where a shot had just been made in a fresh break, 

and he was concerned that it might strike the rib, curtain, or people. 

Mr. Noble was located right at the rib where he attempted to steer around 

the corner, and Mr. Amburgey stated that he mentioned nothing about safety, 

but simply told Mr. Noble that he couldn't steer the machine. After some 

words between the two, Mr. Amburgey got off the scoop and told Mr. Noble 

"well, you drive it, then" (Tr. 26). 

Mr. Amburgey confirmed that he had never known Mr. Noble to fire 

anyone, and when he told him "to go outside" he did not specifically 

state that he had been fired (Tr. 28). When he encountered Mr. Collins 

on the surface, he told him that Mr. Noble had sent him outside and he 

did not tell Mr. Collins that the scoop was unsafe and would not steer 

(Tr. 29). Mr. Amburgey confirmed that he had no previous trouble steering 

any of the scoops on the section (Tr. 31). He also confirmed that Mr. Collins 

hired him to work for the respondent, and has known him for a number of 

years (Tr. 36-37). He also confirmed that he was "going to forget about 

the whole episode" but "got mad" when he believed that Mr. Collins "lied" 

to Mr. Hogg about the circumstances of his leaving respondent's employ 

(Tr. 38). . 

In response to certain bench questions, Mr. Amburgey respondend as 

follows (Tr. 41-42): 

Q. When you say you were having trouble steering 

this scoop, was it because of the way the coal was 

cut or was something mechanically wrong with the 

scoop? 

A. It just wouldn't steer like it should, you know. 

No matter where you would point it, it wouldn't 

steer like it was supposed to steer. 
Q. You said it had had some problems with the 

steering on it before? 

A. Yes. 

Q. And it was taken care of? 

A. They worked on it, yes. 

Q. What specifically was wrong with the scoop? 

A. They put steering caps and stuff on it. That's 

all I know. 

Q. You had an MSHA inspector there that day? 

A. Yes. 

Q. After Mr. Noble sent you out of the mine did 

you ever think about getting the inspector over there 

to take a look at the scoop? 

A. No, I didn't. 

Q. Why not? 

A. When he told me to go to the outside, that's when 

I went to the outside. 

Q. When he tells you to go outside, you went outside. 

And when you went outside you said nothing to Mr. Collins? 

A. I just told him that Noble told me to come outside. 

Q. Why didn't you tell Mr. Collins why? Why didn't 

you tell Mr. Collins you were having trouble with 

the scoop? I assume he's the superintendent. He would 

go down there and check it out, wouldn't he? 

A. I guess he would. 

Q. But he wouldn't do that unless you told him, would 

he? 

A. No, I don't guess. 

Q. Why didn't you tell him? 

A. I don't know. I was just upset. I told him that 

Noble told me to go outside, that he didn't need me nohow. I 

715 
Q. You claim that Mr. Noble said some words to the 

effect that you couldn't drive it if it were brand 

new and he didn't need you anyway. This leads me to 

believe that you and Mr. Noble didn't hit it off too 

well. It is kind of unusual for two people to get 

along at work, and a worker and a supervisor to have 

words over a steering and him telling you, "Well, you 

dumb so-and-so, you couldn't operate that thing if it 

was new, and get out. I don't need you." That leads 

me to believe that you and Mr. Noble had been going at 

it for quite a while. Is that right? 

A. Every once in a while he would call me a dumb ass. 

Q. Over what? 

A. I don't know. 

Q. Did he make it a habit of calling his workers names 

like that? 

A. He would act a fool and go on with them all the time, 

but every once in a while he would get mad and call them 

a name or something. 

Q. Was this in jest? 

A. I don't know. 

Q. Or was this shop talk? 

A. He would just get mad every once in a while and call 

you a dumb ass or something. 

In response to further bench questions, Mr. Amburgey admitted that a 

week or so prior to his claimed discharge he operated a scoop on the 

section with an inoperative front light for practically the entire shift, 

that he knew the light was out, but said nothing about it because "something 

like that, I usually don't pay no attention to it". At the end of the 

shift as he was driving along the belt line along a curtain, he nearly 

struck Mr. Noble and an MSHA inspector. When asked about the light at 

the time, he told Mr. Noble that it had been out all day, and the next 

morning Mr. Noble "got mad" at him and "cursed me out" for admitting the 

light had been out. Mr. Amburgey did not know whether the inspector 

issued a citation for the defective light, and he did not tag the machine 

out (Tr. 43-48). 

With regard to the scoop that he claimed had a steering problem, 

Mr. Amburgey confirmed that he had not experienced prior steering problems 

with the machine before December 30, and he confirmed that he did not 

check the machine before he operated it that day, but "guessed" that a 

repairman did (Tr. 48, 50). 

716 
Testimony and evidence adduced by the respondent 

Jack Collins, mine superintendent, testified that he has known 

Mr. Amburgey for 10 to 12 years and that at one time he was married to 

one of his relatives. He confirmed that he had no previous problems 

with Mr. Amburgey, and he stated that all underground equipment is preshifted by the foreman one hour before the actual start of any shift. 

He stated that Mr. Amburgey was originally hired as a timber man and 

"extra inside man" doing odd jobs. After expressing a desire to be a 

scoop driver, Mr. Collins trained him for this job and Mr. Amburgey 

began operating the scoop "a couple of weeks" after the opening of 

the Number 9 mine. Prior to this time, while Mr. Amburgey told him 

he had prior experience as a scoop operator, his experience was limited 

to tramming it and he had no prior coal production experience with a 

scoop (Tr. 54). 

Mr. Collins testified that Mr. Amburgey's tramming scoop experience 

consisted in pulling a load of coal tied to a "ram car" without a bucket, 

and he instructed the foreman to let him learn the actual coal loading 

process using a scoop with a bucket, which required the actual knowledge 

to load coal out, and that this was a more difficult task (Tr. 56). 

Mr. Collins stated that five scoops were available on the section, and 

that each driver had a particular one which he operated. He confirmed 

that he found out about Mr. Amburgey knowingly operating a scoop with 

a defective light after the fact, and had he been advised the day it 

happened, he would have discharged Mr. Amburgey. He did not do so because 

Mr. Amburgey had already gone underground the day after the incident to 

work, and one or two weeks had passed, but he did "chew him out" over 

the incident and told him never to drive any equipment underground without 

lights on it (Tr. 59). 

Mr. Collins stated that on December 30, 1981, when Mr. Noble sent 

Mr. Amburgey out of the mine, he spoke with Mr. Amburgey in the mine office, 

and when he asked him what the problem was Mr. Amburgey replied "I've quit. 

I can't get along with that foreman (Noble) up there" (Tr. 61). Mr. Collins 

testified as follows concerning this conversation (Tr. 61-62): 

A. I asked him what he quit for and he said, 

"I can't get along with that foreman up there." 

He said, "I can't drive a scoop to satisfy him." I 

said, "Carl, I've got a job open on the tail piece 

if you want it, shoveling on the tail piece up 

there." He said, "No, I've quit. I can't get 

along with him." I said, "Now, you might ought to 

think this over, Carl." I said, "Right now a job 

is hard to find, and when you go off this hill 

and I hire another man in your place I can't take 

you back." He said, "I've quit." I said, "Well, 

that's up to you." 

Mr. Collins testified that after Mr. Amburgey left the mine, he 

called him that same evening seeking his job back, but he had hired 

someone else. Mr. Collins denied ever asking Mr. Amburgey to leave and 

717 
never told him that he was fired or discharged (Tr. 64). He confirmed 

that Mr. Amburgey never mentioned to him anything about any unsafe condition 

on the scoop or that he was having difficulty steering it. Mr. Collins 

stated that he first learned about this situation when Mr. Noble came out 

of the mine the day Mr. Amburgey left, and he testified as follows 

with regard to the incident in question (Tr. 65-67): 

Q. When Noble came outside, what did he tell 

you? 

A. He told me that Carl was up there trying 

to load that scoops, and he had two (2) scoops 

behind him held up; holding up production. 

He said he told Carl to move his scoop back 

on this side and load over here and let them 

other two scoops go on and get in that coal, 

because he was holding them up. The pin man 

was held up; the shooting man was held up; he 

had a whole crew held up there trying to load 

that scoop. He said Carl told him, "I can't 

drive it to suit you. Drive it yourself." 

Q. Well, did Noble say anything about why he 

was holding up everybody and why he couldn't drive 

the scoop? 

A. He just told me that Carl wasn't going to make 

a scoop operator. He said he was just holding 

up production. 

Q. Did he say anything about the steering; that 

it wouldn't steer? 

A. No. 

Q. Did he say anything to you--did Noble say anything 

to you that Carl Amburgey said that it wouldn't steer? 

A. No. Amburgey told Noble to drive it himself, 

and he did drive it. He drove it the rest of the 

shift himself. If there had been something wrong 

with the steering he couldn't have drove it. 

Q. Did you talk to Jim Hogg about Carl Amburgey? 

A. No. 

Q. You never did? 

A. I never did. 

718 
Q. You heard Amburgey testify that he called Jim Hogg 

and Jim Hogg told him that you had told Jim Hogg that 

you found Clifford Gilbert and Carl Amburgey sitting 

at the loading point not working and that you sent 

them outside? 

A. I heard him testify that, yes. 

Q. Did that occur? Did you tell Jim Hogg that? 

A. No. I didn't even talk to Jim Hogg, period, 

about him. He never questions what I do. If I hire 

or fire or dismiss or do anything I want to, I am in 

complete charge of the mine and what comes, it has to 

come through me before it goes anywhere. No man can 

be hired or fired unless it comes through me only, 

you know. 

Q. Did Noble have the authority to fire Carl Amburgey 

that day? 

A. No. 

Q. Did you mention that to Carl Amburgey? Did he 

know--did he have any reason to· know that? 

A. I never told Carl that Noble couldn't fire him. 

The word "Fire" was never brought up. I had no reason 

to tell him that. The word "Fire" was never brought 

up in our conversation; not Carl's and mine. 

During a bench colloquy, Mr. Amburgey denied that he told Mr. Collins 

he had quit, and his testimony on this point is as follows (Tr. 72): 

MR. AMBURGEY: I never did come right out and say 

I'd quit, no. 

JUDGE KOUTRAS: You say you never came right out and 

said it. Did you say anything that gave Mr. Collins 

the impression that you were quitting? 

MR. AMBURGEY: I just told him that Noble had sent 

me to the outside, you know. 

Regarding his knowledge of any defective steering on the scoop in 

question, Mr. Collins testified as follows (Tr. 75-78): 

Q. After you talked to Mr. Amburgey, you never 

went back underground to check the scoop out, or 

anything, did you? 

719 
A. The scoops come outside. 

Q. They come out? 

A. Yes. 

Q. Did you ever check the scoop out after Mr. Amburgey 

had left, or after that day, to determine whether or not 

there was actually anything wrong with the steering? 

A. I was never aware that there was anything wrong with 

it. I didn't check it. I was never aware that there 

was something wrong. 

Q. When did you find out that Mr. Amburgey was having 

problems with the steering? 

A. I never did find out that he was. 

Q. You must have found out when he filed the complaint in 

this case? 

A. Oh, yes. I knew about it then, but that was probably 

a month or so later. 

Q. Was that the first time you found out? 

A. Yes, that there was something wrong with the scoop. 

I was never aware that there was because the drivers 

kept on driving the scoops and pulling cars. 

Q. That is what I am driving at. After Mr. Amburgey left, 

he said nothing to you about the scoop and him having 

problems with it, or anything? 

A. No. 

Q. All he told you was that Noble sent him outside the 

mine? 

A. He said--no, he didn't even tell me that Noble sent 

him out. He just told me, "I've quit. I can't get 

alont with that foreman." 

Q. After he left that day--December 30, 1981 would have 

been a Wednesday, of course, on my calendar. Okay. 

A. Yes. 

Q. You say he called you back that night trying to get 

his job back? 

A. That's right. 

720 
Q. That you had already hired somebody? 

A. I hired a man that day. 

Q. So, the next Thursday when you went back to the 

mine was that same scoop that he had worked on the 

previous day used in the mine? 

A. I don't really know. You see, I had five (5). 

Q. At any time after December 30 up until the time 

that this complaint was filed by Mr. Amburgey did you 

ever have occasion as mine superintendent to have someone 

inspect that scoop for steering or anything like that? 

A. Yes. My repairman goes over the scoops every day. 

Q. Did anyone ever bring to your attention the fact 

that he was having problems with the steering? 

A. No. 

Q. Was that scoop ever cited by an MSHA inspector 

after you left? 

A. Not on the steering. 

Q. Not on the steering? 

A. Not on the steering. 

Q. The only time it was cited was for that light. 

Was this the same scoop that we are talking about 

where the light was out? 

A. I really don't know if it was the same scoop 

he was on or not. 

Q. Did you talk to Mr. Noble the next day? 

A. Yes. 

Q. And he told you essentially what you testified 

to in response to Mr. Polly's question, that he 

thought Mr. Amburgey would never make a scoop operator 

and that he was holding up production, and that sort 

of thing, and asked him to get out of the way and that 

Mr. Amburgey told him, "Well, you drive it," and he 

did the rest of the shift? That was the extent of 

your conversation? 

A. That's right 

721 
Q. And Mr. Noble never mentioned anything to 

you about Mr. Amburgey saying he was having 

problems with the steering? 

A. No. He didn't mention it to me at all. 

Q. And your assumption was, since Mr. Noble went 

ahead and operated it the rest of the shift, that 

there was nothing wrong with the steering? 

A. Evidently. 

James E. Noble, underground mine foreman, Bright No. 9 Mine, testified 

that on the day in question when Mr. Amburgey was operating his scoop -

he was "gouging the scoop" trying to get into an area, and after attempting 

to show him how to pull into the area, Mr. Amburgey uttered an obscenity, 

and he (Noble) sent him out of the section, telling him "Go on to the 

outside, then. I don't need you" (Tr. 81). At the time Mr. Amburgey 

was assigned to the mine he was an "extra man", and was used to-shoot 

coal or set timbers. He filled in as a scoop operator when someone 

missed work, and he had been driving the scoop two months prior to the 

incident of December 30, 1981 (Tr. 82)/ 

Mr. Noble stated that he had production troubles with Mr. Amburgey 

because he was slow, but he "overlooked it hoping he'd get better". 

Mr. Noble stated that in his attempts to maneuver into the area where he 

was to load coal out, Mr. Amburgey was "gouging the bucket" and "tearing 

it up", and after an exchange of words, Mr. Amburgey told him "drive it 

yourself", and Mr. Noble did in fact complete the work with the same scoop 

and there was nothing wrong with it. Mr. Noble simply believed that 

Mr. Amburgey was not a good scoop operator, and Mr. Amburgey said nothing 

to him about any defective or unsafe steering (Tr. 83-85). Had he mentioned 

anything to him, he (Noble) would have taken the machine "to the outside" 

for repairs (Tr. 85). 

Mr. Noble confirmed that he had never fired anyone who worked for 

the respondent, had no such authority, and he stated that if it had to 

be done he would bring the matter to Mr. Collins' attention (Tr. 87). 

By sending Mr. Amburgey "to the outside", he meant that he was to see 

Mr. Collins. Had Mr. Collins seen fit to give Mr. Amburgey other work 

that day, he could have returned to his section the next day, but that 

it was up to Mr. Collins to put him back to work (Tr. 89). Mr. Noble 

confirmed that he loaded five or six loads of coal with the scoop on 

December 30, after he ordered Mr. Amburgey out of the mine (Tr. 89). 

He confirmed that by his inability to load the coal with the scoop, 

Mr. Amburgey had two experienced scoop drivers waiting behind him holding 

up production, and they were agitated over this (Tr. 90, 92). 

Mr. Noble confirmed the incident over the defective front scoop 

light took place a week or two before December 30, and that he "chewed 

him out" over the incident because Mr. Amburgey admitted he had operated 

the car the entire shift with the light out and said nothing to anybody 

(Tr. 95). 

722 
Stanley Caudill, testified that he has worked as a miner for 36 years. 

He testified that he was at the mine on December 30, 1981, and that his 

job is to help repair the scoops. After observing two scoops parked 

outside, he asked Mr. Amburgey "what's the matter", and Mr. Amburgey 

replied "I've quit". Mr. Caudill then summoned Mr. Collins and he 

oberheard Mr. Amburgey tell Mr. Collins "Me and Noble can't get along. 

I'll just quit". Mr. Collins then told Mr. Amburgey to "think twice 

about it" and offered to put him to work "on the tailpiece". Mr. Amburgey 

said nothing about any steering problems at that time, and Mr. Caudill 

did not hear Mr. Collins fire Mr. Amburgey (Tr. 99-100). Mr. Amburgey 

declined to cross-exam Mr. Caudill or to ask any additional questions 

(Tr. 101). 

Rondell Roark, formerly employed by the respondent, testified that 

he worked at the No. 9 Mine on December 30, 1981, as a roof bolter 

operator, and he was present on the section and witnessed the incident 

over the scoop car. His testimony is as follows (Tr. 103-105): 

A. The best I remember, Carl come up in that 

place and was trying to clean it up. If he 

said anything about the steering I did not hear 

it. I can't remember it. As far as I know, he 

didn't. 

Q. What did you see? Tell the Judge what you 

saw Carl do. 

A. He was trying to clean that place up and 

James told him to go on to a new cut and let 

them other two (2) scoops get in there and finish 

cleaning that up where I could get in there and 

bolt ~.t. Carl took a load out and he came back. 

He started to hit the same cut again and James 

told him, "Go to a fresh cut and let these other 

fellows do it." 

Q. Did you see anything wrong with what he was 

doing on that cut? 

A. No, sir. He weren't running it like an 

expert, you know, but that wou~d be expected with 

him just being in training. 

Q. Did you know he was just in training? 

A. Yes, sir. But James told him to go on to 

another cut and let the other two (2) experienced 

scoop drivers get in there and finish clearning that 

up. Then they got into it and Carl jumped off the 

scoop and said, "There. You run it." James told 

him to go outside. 

72d 
Q. Did you hear the entire conversation between 

them? 

A. Not all of it. 

Q. If Carl Amburgey had said something to James Noble 

that day about the scoop steering not working, something being wrong with the steering, or it being unsafe 

or dangerous, would you in all likelihood have heard 

it? 

A. Most likely I would have. I wasn't paying much 

attention. I just set there and I'd wait for them 

to clean it up. Then I'd go in and bolt it. I 

didn't pay much attention. Like I said, if he said 

anything about the steering I don't remember it or 

I didn't hear it. 

Q. If he had said anything about it • . . . 

A. If he had, I think I would've heard it. 

setting there beside of him. I don't know. 

remember. It's been a year. 

I was 

I can't 

Q. If that had been the case and if he had said 

anything about the steering, do you think it would 

be likely that you would remember it? 

A. I don't know. I wasn't paying that much attention. 

I might have. He wasn't fired. I can say that. James 

just told him to go outside. 

Q. He was not fired? 

A. He just told him to go outside. 

Q. Would you have took that as him being fired, or you 

being fired, if you had been told that? 

A. No. I'd have went outside. Let me clarify about 

James. He cursed and hollered and went on back in there, 

acting crazy all the time. You never know when he was serious 

and when he wasn't. Most likely, if Carl had just cursed 

him right back and went on about his business there wouldn't 

be nothing to it, because we just carried on. Sometimes in 

there you'd think they was going to fight and they'd just 

be horse playing. 

Q. Did Noble get on the scoop and drive it then? 

724 
A. The best I can remember, he did. 

Q. Did you see him load coal with it? 

A. I can't remember. They were moving on 

to the next cut and then I went in to bolt it. 

Q. Did you ever become aware that there was anything 

wrong with the steering after that? 

A. No, sir, not till here the other day when they said 

this case was coming up. 

Mr. Amburgey declined to cross-examine Mr. Roark or to ask him 

any additional questions (Tr. 106). Mr. Amburgey was recalled by me 

and he confirmed that at the time he spoke with Mr. Collins after being 

sent out of the section by Mr. Noble, he did not say anything to Mr. Collins 

about any scoop steering problems (Tr. 107). Mr. Amburgey denied that 

Mr. Collins subsequently told him that he had hired someone else to 

replace him, and he stated that he t:ook Mr. Noble's directive to "go on 

outside. I don't need you anymore" to mean that he had been fired. He 

confirmed that he told Mr. Collins he could not get along with Mr. Noble, 

and when asked whether he denied telling Mr. Collins that he had quit, 

he replied "I never did come out and tell him I quit" (Tr. 109). 

Mr. Amburgey testified further that he could not recall Mr. Collins 

offering him other work at the tail piece on December 30, and he confirmed 

that Mr. Noble had not previously questioned his ability as a scoop driver, 

nor could he recall Mr. Noble telling him to back the scoop out and go 

to another cut (Tr. 112). He did confirm that after an exchange of curse 

words between them, he got off the scoop and told Mr. Noble to drive it, 

and at that point, Mr. Noble ordered him "to the outside" (Tr. 113). 

Mr. Amburgey confirmed that he did not know why the scoop would not 

steer, nor did he know what was wrong with it or whether it was defective 

(Tr. 114). 

Findings and Conclusions 

As indicated earlier, the issues in this case are whether Mr. Amburgey's 

refusal to continue operating a scoop because of his belief that the 

steering mechanism was somehow defective and unsafe is protected activity 

under the Act, and whether his asserted discharge for this refusal was 

proper. Refusal to perform work is protected under section 105(c)(l) 

of the Act if it results from a good faith belief that the work involves 

safety hazards, if the belief is a reasonable one, and if the reason for 

the refusal to work is communicated to the mine operator. Secretary of 

Labor/Fasula 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 (3d Cir. 1981); Secretary of Labor/Robinette v. United Castle 

Coal Co., 3 FMSHRC 803, 2 BNA MSHC 1213 (1981); Bradley v. Belva Coal Co., 

4 FMSHRC 982 (1982); Secretary of Labor/Dunmire and Estle v. Northern Coal 

Co., 4 FMSHRC 127 (1982). 

725 
One initial question for determination is whether or not Mr. Amburgey 

was actually discharged on December 30, 1981, or whether he voluntarily 

quit or abandoned his job. The mine in question is a nonunion mine, and 

it would appear from the record here that at the pertinent time in question 

there were no formal grievance or discharge procedures, and it seems 

clear that no written notice of any kind was given to Mr. Amburgey when 

he departed the mine on December 30, 1981. 

Mr. Collins testified that he has the sole authority to discharge 

or otherwise discipline miners and that he did not actually fire or discharge 

Mr. Amburgey, and his testimony is corroborated by Mr. Caudill who overheard 

a conversation between Mr. Collins and Mr. Amburgey concerning the incident 

in question. Underground foreman Noble testified that he did not actually 

tell Mr. Amburgey that he had been fired at the time he ordered him out 

of the mine, and he also testified that he had no authority to fire anyone. 

On the other hand, Mr. Amburgey testified that when the foreman ordered 

him out of the mine, he thought he had been fired. Other witnesses who 

testified in this case stated that Mr. Amburgey stated that he had quit 

because he could not get along with foreman Noble. Mr. Amburgey's 

testimony that he telephoned Mr. Collins on the evening.of December 30, 1981, 

in an attempt to get his job back supports his assertion that he believed 

he had been fired. Mr. Collins testimony that Mr. Amburgey d{d in fact 

call him, and his hiring of another man to replace Mr. Am~utgey does lend 

some support to Mr. Amburgey's belief that he had been fxred. 

/ 

,/ 

On the basis of all of the credible testimony in this case, I believe 

it is reasonable to conclude that at the time of the incident in question 

Mr. Amburgey had reasonable grounds to believe that he had been discharged 

by the foreman. However, in view of my findings and conclusions which 

follow below on the question of whether or/not his work refusal was protected 

activity, the question of whether he was fired or actually quit becomes moot. 

The record establishes that af~er Mr. Amburgey was ordered out of 

the section by the foreman and s~Jt"t to the surface, he encountered Mr. Collins, 

and Mr. Collins testified tha~(he offered Mr. Amburgey other work on the 

tailpiece. This was corrobor~ted by the testimony of Mr. Caudill. Mr. Amburgey 

denies that· he was offerec:V6ther work, and later that same day the mine 

was idled because the fart went down and everyone went home, including 

Mr. Amburgey. At no time did Mr. Amburgey mention anything to Mr. Collins 

about any defective steering on the scoop machine in question, and at no 

time did he tell Mr. Collins that he was concerned for his safety. 

After careful consideration of all of the testimony in this case, I 

cannot conclude that Mr. Amburgey has established through any credible 

testimony or evidence that the scoop car in question was in fact defective 

and that his refusal to operate it was protected activity. It seems 

clear to me from all of the testimony in this case, that Mr. Amburgey and 

foreman Noble had a dispute over Mr. Amburgey's ability to operate the 

scoop car in question, and that after the dispute escalated into a shouting 

match between the two, Mr. Amburgey was ordered out of the mine. 

726 
Mr. Amburgey conceded that at no time did he advise Mr. Collins 

that he was having any problems with the steering on the scoop car, and 

Mr. Noble's credible testimony is that he drove the car without incident 

after Mr. Amburgey refused to operate it. Mr. Caudill corroborated the 

fact that Mr. Amburgey never mentioned anything to Mr. Collins about the 

car being unsafe, and since Mr. Caudill was responsible for maintaining 

the cars I would think that any unsafe condition of the car would have come 

to his attention. Further, even though an MSHA inspector was on the property 

on the day in question, Mr. Amburgey said nothing to him about the alleged 

defective steering. 

Having viewed all of the witnesses on the stand during the course 

of the hearing, I conclude that Mr. Amburgey's complaint in this case 

was filed because of a personal dispute with mine management unrelated 

to any real safety concerns on his part with respect to the scoop car 

in question. Mr. Amburgey admitted that he filed his initial complaint 

with MSHA after learning that Mr. Collins had "lied" about the circumstances 

of his leaving the mine on December 30, 1981. 

With regard to Mr. Amburgey's allegation that he was "cursed out" 

because he would not lie to an MSHA inspector about the light being out 

on his scoop car, I take note of the fact that this allegation was never 

made to MSHA as part of his initial complaint, but was stated in his letter 

of August 19, 1982, to the Commission after MSHA advised him that no 

discrimination had occurred. At the hearing, respondent's counsel objected 

to the interjection of this allegation as part of the complaint, and he 

established that Mr. Amburgey had never served respondent with a copy 

of the letter (Tr. 6-10). 

The record here establishes that the defective scoop light incident 

took place a week or two prior to December 30, 1981, and Mr. Amburgey 

admitted that he knowingly drove the car with one light out and had failed 

to report that cbndition to mine management. While it is true that Mr. Amburgey 

was "chewed out" by Mr. Collins and Mr. Noble for not informing management 

of the defective light, I cannot conclude that there is any credible 

testimony to support his allegation or inference that mine management "cursed 

him" or otherwise harassed him for not lying to an MSHA inspector about 

this incident. 

Conclusion and Order 

In view of the foregoing findings and conclusions, and after careful 

consideration of all of the evidence and testimony adduced in this case, I 

conclude and find that the respondent did not discriminate against Mr. Amburgey, 

and that his rights under the Act have not been violated. Accordingly, his 

discrimination complaint IS DISMISSED. 

~ ~ Koutras /l,~- Administrative Law Judge 

727 
Distribution: 

Ronald G. Polly, Esq., Polly, Craft, Asher & Smallwood, 7-10 Bank Bldg., 

Whitesburg, KY 41858 (Certified Mail) 

Carl Amburgey, Rt. 1, Box 368 A, Whitesburg, KY 41858 (Certified Mail) 

728 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR~"., 

SOUTHERN OHIO COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

v. 

UNITED MINE WORKERS OF 

AMERICA (UMWA), 

Intervenor 

(703) 756-6210/11/12 

Contest of Citations 

Docket No. LAKE 82-93-R 

Citation No. 1225640; 6/3/82 

Docket No. LAKE 82-94-R 

Citation No. 1225641; 6/3/82 

Docket No. LAKE 82-95-R 

Citation No. 1225867; 6/4/82 

Meigs No. 2 Mine 

Raccoon No. 3 Mine 

DECISIONS 

Appearances: D. Michael Miller, Daniel A. Brown, Esqs., Columbus, Ohio' 

for the Contestant; Edward Fitch, Attorney, U.S. Department 

of Labor, Arlington, Virginia, for respondent MSHA; 

David Shreve, Mary Lu Jordan, Esqs., UMWA, Washington, DC, 

for the Intervenor. 

Before: Judge Koutras 

Statement of the Proceedings 

These consolidated cases arise from similar circumstances regarding 

"meetings or conferences" arranged by MSHA inspectors and held at the 

mine sites owned and operated by th~ Respondent Southern Ohio Coal Company 

(hereinafter SOCCO). In each of the citations herein contested, the 

inspector issued citations pursuant to section 104(a) of the Federal Mine 

Safety and Health Act of 1977, charging SOCCO with violations of section 103(f) 

of the Act as a result of SOCCO' s refusal to compensate th·e miners' 

representatives for their time spent at the conferences or meetings. 

SOCCO concedes that the walkaround representatives were not paid. 

Section 103(f), commonly referred to as "the walkaround right", 

provides as follows: 

729 
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), for the purpose of aiding 

such inspection and to participate in pre- or postinspection 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 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 under the provisions of this subsection. 

Compliance with this subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act [emphasis supplied]. 

Issues 

A general issue raised by the UMWA and MSHA is the validity of the 

Secretary's determination that miners must be paid while attending certain 

mine site meetings or conferences, held at periodic intervals determined 

by the inspector, to review citations issued by the inspector. The 

Secretary has concluded that such meetings are properly categorized as 

post-inspection conferences under section 103(f) of the Act and that the 

right of a miner's representative to participate and to receive pay for 

said participation are co-extensive for any post-inspection conferences 

· held on the mine site. 

On the specific facts of the instant cases, and without admitting 

that a miner representative is entitled to be compensated for attending 

any post-inspection conference, SOCCO's position is that the meetings held 

at the mine site were not inspection conferences within the meaning of 

section 103(f), but were merely assessment conferences held pursuant to 

the newly promulgated "Part 100" civil penalty assessment regulations. 

In short, while SOCCO concedes that miner representatives are entitled 

to compensation under section 103(f) when they accompany inspectors during 

a physical walkaround inspection of the mine, it does not concede that 

compensation is mandated by that section for "assessment conferences" held 

pursuant to Part 100, Title 30, Code of Federal Regulations. 

730 
Discussion 

In Docket LAKE 82-93-R, the inspector issued Citation No. 1225640, 

on June 3, 1982, and the condition or practice cited states: 

On May 24, 1982, Frank Goble, representative of 

the miners, accompanied Myron Beck, MSHA Inspector, 

during a regular inspection of the mine, which was 

pertaining to conference and modifications of citations 

according to new 30 CFR Part 100, civil penalty criteria, 

and he was not paid for the time he participated in 

such inspection. 

In Docket LAKE 82-94-R, the inspector issued Citation No. 1225641, 

on June 3, 1982, and the condition or practice cited states: 

On May 24, 1982, Bob Koons, representative of the 

miners accompanied D. E. McNece, Jr., MSHA Inspector, 

during a regular inspection of the mine which was 

pertaining to conference and modification of citations 

according to new 30 CFR Part 100, civil penalty criteria, 

and he was not paid for the time he participated in 

such inspection. 

In Docket LAKE 82-95-R, the inspector issued Citation No. 1225867, 

on June 4, 1982, and the condition or practice cited states: 

On May 24 and 26 Bill Blackburn, representative of the 

miners traveled with an authorized representative 

of the Secretary on a regular AAA inspection and was 

not compensated for his loss of pay for those days. 

At the hearing in these cases, testimony and evidence was taken 

concerning the citations issued in Dockets LAKE 82-93-R and 82-94-R, at 

SOCCO's Meigs No. 2 Mine. With regard to the citation issued at the Raccoon 

No. 3 Mine, SOCCO's counsel made a proffer that the testimony regarding 

the Raccoon Mine No. 3 would be the same as that presented for the Meigs 

No. 2 Mine, and in its post-hearing brief, at pg. 8, SOOCO's counsel 

confirms that "the evidence regarding this citation would not be materially 

different from the evidence concerning the first two" (Tr. 11). MSHA's 

counsel stated that "no penalty was made for the Raccoon No.· 3 Mine citation 

and it was my understanding that that case was going to b.e withdrawn" 

(Tr. 11). 

MSHA's responses to certain interrogatories filed in Docket LAKE 82-95-R 

do confirm that the facts which gave rise to the issuance of the contested 

citation in that case are similar to those which took place in the other 

two dockets, and the legal arguments advanced by the parties in all three 

cases appear to be the same. In order to clarify the matter further, 

telephone conferences were held by me with counsel for MSHA, SOCCO, and 

' ' 

731 
the UMWA on March 4, 1983, and they confirmed that the facts and legal 

arguments are. similar~ However, SOCCO' s counsel confirmed that the civil 

penalty assessed for the citation issued in LAKE 82-95-R, had "been paid 

by mistake", and SOCCO's position is that it still intends to litigate the 

issue raised notwithstanding that "mistaken" payment, and tqat its contest 

has not been withdrawn. MSHA's counsel could not confirm whether the 

civil penalty had in fact been paid, and as far as I know, no motions have 

ever been filed by the parties seeking withdrawal or dismissal of the 

case. Accordingly, I have included it as part of my decisions in these 

proceedings. 

MSHA's testimony and evidence 

MSHA Inspector Dalton E. McNece, testified as to his background, 

and he confirmed that he went to the Meigs • 2 mine on May 24, 1982, 

and met with company safety supervisor Carl Curry and representative of 

the miners Bob Koons. He advised them that he was there for the purpose 

of a Part 100 conference, and that instead of a regular mine inspection, 

he would spend the day "conferencing and modifying citations under the 

new Part 100 which were citations that had previously been issued and 

had not been conferenced" (Tr. 47). 

Mr. NcNece stated that the conference consisted of a discussion of 

14 citations, and that Mr. Koons and Mr. Curry participated in the 

discussion. Mr. NcNece confirmed that he modified each citation, including 

the factors of negligence , gravity, and good faith, and his prior 

"significant and substantial" findings. Mr. Curry advised him that 

it was possible that Mr. Koons would not be paid for the time spent at 

the conference (Tr. 49). 

Mr. NcNece testified that subsequently, on June 3, 1982, while at 

the mine for a regular inspection, Mr. Koons advised him that he had 

not been paid for the time he spent on the May 24, 1982, conference, and 

that mine management confirmed that he was not going to be paid. Mr. McNece 

then issued citation no. 1225641 (Tr. 49). 

Mr. McNece stated that the May 24, 1982, conference was new to everyone, 

and that at the present time such conferences are held at the end of 

each inspection day or week, and any citations issued during the day or 

week are discussed with mine management and the miner representative. 

The present conference also includes any findings of negligence, good 

faith, and gravity, which now appear on the face of the new MSHA citations 

in lieu of the previously executed inspector's "narrative statement" or 

"gravity sheet" which is no longer in use (Tr. 51). 

Mr. McNece confirmed that in the past, "inspector's-findings", which 

were recorded on the "narrative statement", were not discussed with mine 

management, but' since a new "combined" citation form is now in use, 

management has an opportunity to discuss the inspector's gravity, negligence, 

and good faith findings at the time the citation is served (Tr. 52-54). 

732 
Mr. McNece explained that prior to the new Part 100 procedures 

he would hold a preinspection conference at the beginning of each regular 

inspection period for the purpose of alerting mine management and the 

miner representative of his presence, and that this usually took 10 to 

15 minutes. Thereafter, he would submit his weekly and interim inspection 

reports to his subdistrict office, and on the last day of the inspection 

-period a "close-out conference" was held, with mine management and the 

miner representative present, to discuss all of the citations issued during 

the inspection period (Tr. 63-65)~ 

Mr. McNece stated that under the new Part 100 procedures, he holds 

weekly conferences at the close of the day on Friday with the mine 

and union representative present to discuss the citations issued during 

the week, and that these last half hour or 45 minutes, depending on 

the number of citations issued. These conferences include a discussion 

of the conditions cited as violations, and the negligence, gravity, and 

good faith compliance regarding each citation. At the completion of the 

inspection cycle, a similar "close-out conference" is held, but it is 

limited to any citations issued during the last week of the inspection 

period (Tr. 66). 

In response to UMWA cross-examination, Mr. McNece confirmed that 

of the 14 citations "conferenced" by him on May 24, 1982, two were modified 

and his "significant and substantial" (S&S) findings were revoked. The 

remaining 12 citations, which included "S&S" findings, were reaffirmed 

as originally issued, and he explained why he modified some citations 

and left the others intact (Tr. 74-78). 

In response to SOCCO's cross-examination, Mr. McNece confirmed that 

while on a physical inspection of the mine, a company representative and 

a miner's representative are usually with him, and conversations do take 

place among this "inspection party" with regard to any violations which 

may arise. After the completion of the inspection walkaround, he reduces 

his findings to writing and serves any citations on the mine operator 

(Tr. 83). 

Mr. McNece testified that he did not conduct a physical walkaround 

inspection of the mine on May 24, 1982, but devoted the day to "conferenceing 

and modifications of previously issued citations" (Tr. 83-84). He recalled 

that the discussions concerning the 14 citations took place from approximately 

9:00 a.m. to 12 noon, and that he devoted the rest of the afternoon, until 

approximately 3:30 p.m., on "paperwork" connected with the citations 

(Tr. 88-90). 

Mr. McNece confirmed that he also issued a citatidn because mine 

representative Goble had not been compensated for the conference of 

May 24, 1982, with MSHA inspector Beck (Tr. 93, exhibit R-1). He also 

confirmed that in the future, similar conferences will be held at the 

mine, and the amount of time that such meetings will require depends on 

the number of citations which are ~ssued and discussed (Tr. 94). 

733 
Mr. McNece confirmed that the conference of May 24, 1982, included 

discussions of gravity and negligence. He could not recall whether he 

had any information concerning the relative "number values" for negligence, 

gravity, and good faith, but did confirm that respondent's safety representative Curry did. Mr. McNece confirmed that he was only concerned with 

the factors of negligence, gravity, and good faith and not with "numbers 

or points" (Tr. 97-98). 

The UMWA's testimony and evidence 

The UMWA representative who participated in the hearing in these 

proceedings stated that he had never seen the "Lamonica interpretative 

bulletin". He did concede that he was aware of the fact that if a miner's 

representative exercised his right to a conference held off mine property 

at MSHA's district office, he would not be entitled to compensation, and 

that this has been the position taken by the UMWA on this question (Tr. 139). 

Robert Koons, testified that he is employed at the Meigs No. 2 Mine 

as a lampman, and that he has served as the chairman of the health and 

safety committee for approximately 8-1/2 to nine years. He confirmed 

that he attended the conference in question on May 24, 1982, to discuss 

certain citations issued at the mine, and he believed that conferences 

of this kind benefit the miners as well as mine management. In his view, 

if he were not compensated for the time spent at these conferences, the 

local union would be unable to afford a representative to be present (Tr. 144-146). 

On cross-examination, Mr. Koons confirmed that Mr. Goble was present 

during part of the conference with Mr. McNece, and he then stayed for his 

own meeting with Mr. Beck. He also confirmed that he does meet on a 

regular daily basis with mine management in regard to mutual safety 

concerns (Tr. 147). 

Mr. Koons confirmed that since May 24, 1982, he has met with MSHA 

District office manager Gaither Knight at Wellston, and with a mine 

management representative present, at a "second conference~' and he was 

not paid for attending that conference (Tr. 148). He confirmed that he 

was not paid for the May 24, 1982, conference with Inspector McNece and 

that he lost five hours of pay. He stated that his presence and participation 

at that conference was with respect to the matters addressed in the citations 

under discussion, and he confirmed that he is responsible for reporting 

the results of the conference to his member ship (Tr. 155). 

In response to further questions, Mr. Koons stated that with regard 

to the citations discussed on May 24, 1982, he may have been on the initial 

walkaround inspection when some of them were issued, but not on all of 

them (Tr. 157). He estimated that four to six union walkaround representatives 

may have been with the inspectors who issued the 14 citations in question 

(Tr. 158). When asked whether all of these walkaround representatives 

were entitled to be present at the conference of May 24, and to be compensated for their attendance, he responded as follows (Tr. 159-160): 

734 
Q. Do you feel personally that those six were also 

entitled to be present on May 24? 

A. Well, it would be impossible because some of them 

work different shifts and they would have to be summoned 

into the mine. 

Q. Well, let's assume that happened. Let's assume one 

fellow was on the night shift and he decided to have a 

conference during the day time and you picked up the 

phone and called this fellow, got him out of bed or 

something, said, hey, come on to the mine, we're having 

a conference on the citation issued last when you were 

the walk-around. The guy comes out to the mine. Do 

you feel that he has a right, number one, to participate 

in that situation and, number two, do you think he ought 

to be compensated for that, just your personal opinion? 

A. That's a pretty tough question. I don't know. I 

think if I was calling out to the mine I would be 

certainly entitled to compensation by somebody if I was 

to come to begin with. 

Mr. Koons indicated that the conference of May 24 was "unusual" 

and the "first of its kind", and that is why he wanted to be present. 

He confirmed that the usual procedure is for other safety committee members 

to travel with inspectors and "conference" any citations, and in those 

instances he simply receives the safety committeemen's reports (Tr. 161). 

He believed the conference in question was unusual because "it was a 

new change being introduced. They done away with the assessment officers 

and they was doing it on the mine site conference and these type violations" (Tr. 161). Mr. Koons confirmed that as a general rule when he is 

engaged in union business in his capacity as representative of the miners 

he is normally compensated for his time either by the company or the union 

(Tr. 174). 

Mr. Koons confirmed that prior to the new procedures, he would 

participate in a preinspection conference with the inspector and mine 

management, and that this would last approximately 15 minutes to a half 

hour. The inspection would then take place over a three month period 

and the inspector would be there everyday. At the conclusion of this 

three month inspection, he would participate in the "clost-out conference" 

to discuss all citations which may have been issued during the three 

month period, and this would last three to five hours (T~. 175-176). 

Mr. Koons confirmed that since May 24, 1982, he still participates 

in the preinspection conference. However, weekly conferences are now 

held to discuss all citations issued during the week. In addition, if 

there is a spot inspection, a daily conference may also be held. Further, 

at the end of the quarterly inspection cycle, a close-out conference is 

also held (Tr. 177). 

73~) 
Southern Ohio's testimony 

Carl R. Curry, safety supervisor, Meigs No. 2 Mine, testified that 

the Meigs No. 1 and 2 Mines, as well as the Raccoon Mine, are separate 

underground mines which are inspected by MSHA four times a year and that 

each inspection lasts approximately three months (Tr. 225). He confirmed 

that he was the company representative in attandance at the May 24, 1982, 

conferences which resulted in the issuance of two of the citations in 

question (Tr. 227, exhibits R-1 and R-2). 

Mr. Curry confirmed that during the past three years he attended 

assessment conferences in Lexington, Kentucky, and in Columbus and Athens, 

Ohio, away from the mine, and that the only people in attendance were 

himself and the MSHA assessment officer (Tr. 228-229). He and the assessment 

officer discussed grativy, negligence, and good faith compliance "points" 

as well as the facts and circumstances surrounding the citations under 

discussion (Tr. 230). 

Mr. Curry stated that since May 24, 1982, his conferences are similar 

to those held at the mine with the inspector on that day, and the only 

difference is that the inspector conducts the meeting, discusses his 

citations, and solicits conunents from the union and mine management (Tr. 232). 

Mr. Curry stated that prior to the May 24 conference, he attended 

a meeting at MSHA's new Lexington subdistrict office at which time the 

new part 100 procedures were explained to him, and he was given a handout 

explaining the number of "points" which would be assessed for the "blocks" 

checked on the inspector's citation form. He confirmed that he had this 

handout with him at the May 24 conference (Tr. 232-233). He also stated 

that at the MSHA meeting he was advised that the "old assessment conferences 

would be a thing of the past" (Tr. 234). 

Mr. Curry produced the notes and conunents which he made during the 

May 24 conference and they were received in evidence (Tr. 238, exhibit C-1). 

He confirmed that Mr. McNece conducted the conference, and present were 

Mr. Koons, MSHA inspector Myron Beck, and UMWA worker Frank Goble. 

Mr. Beck conducted the second meeting that day and Mr. Curry sat in 

on that one with Mr. Goble, the miner representative. The meetings were 

held in the mine office conference room, and they were similar to the 

previous assessment conferences which he had attended. However, dollar 

amounts were not discussed, but these amounts were "labeled for us for each 

one of those points" (Tr. 243). 

On cross-examination, Mr. Curry confirmed that when he previously 

participated in assessment conferences he knew what the assessments were 

and that his input usually resulted in a 25% reduction (Tr. 248). At 

the present time, he does not talk to the inspector about "points", but 

generally discusses the boxes he checks on the citation form (Tr. 251). 

Mr. Curry confirmed that 80 to 90% of the citations issued at the mine are 

taken to the second stage conference under the new regulations, and that only 

after this conference is he formally told what the actual civil penalty 

is (Tr. 260). 

736 
Additional testimony and arguments made at the hearing 

Although he first insisted that he conducted a regular inspection 

of the mine on May 24, 1982, Inspector McNece finally conceded that he 

conducted no underground or surface physical inspection of the mine and 

that his sole purpose for going to the mine. that day was to discuss 

14 previously issued citations which had not been assessed under the 

new part 100 regulations' (Tr. 99-102). At one point during his testimony, 

he indicated that his mere presence on mine property, even though he 

spent the time "conferenc.ing" was a "regular mine inspection." When 

asked whether his position would be the same if he conducted ·the "conferencing" 

at a Holiday Inn across the road from the mine, he replied that this 

would not be a "regular mine inspection" because the Holiday Inn would 

not be on mine property (Tr. 101). 

Mr. McNece stated that MSHA's policies and instructions require him 

to conduct any Part 100 "initial conferences" on mine property, and that 

these conferences may not be held elsewhere. However, should a "second 

conference" be necessary to further discuss any disagreements voiced by 

mine and union representatives, these are usually held at MSHA's field 

office, and the representative of miners is not required to be compensated 

for this second conference (Tr. 103). Compensation is only required 

for the initial conference (Tr. 103). 

On the one hand, Inspector McNece claims he was at the mine on 

May 24, 1982, to afford the respondent an opportunity to avail itself 

of the new Part 100 regulations. On the other hand, MSHA's counsel 

stated on the record that Mr. McNece was there to only consider his "S&S" 

findings. In this regard, counsel stated as follows at Tr. 108-114: 

JUDGE KOUTRAS: Isn't that precisely what happened 

in this case, in this docket number, on May 24th he 

went back there for the specific purpose of conferencing 14 citations that were previously issued 

where the operator had not had an opportunity for 

it to go through the assessment office, and under 

these new regulations it says, effective on -- the 

effect on prior regulations, the prior Part 100 

remained in effect for the prior assessing of all 

citations and orders where an initial review under 

100.S(b) has been issued before May 21, 1'82. These 

14 citations did not go through the Part 100 

assessment stage, and that's what the inspector did 

when he went back on May 24 was to give the operator 

an opportunity to have those 14 citations looked 

at from an assessment point of view on that day; 

isn't that true? 

MR. FITCH: Looked at for implementation of the 

significant, substantial findings from National 

Gypsum, which is in reality the only thing that 

he did during those conferences was apply 

National Gypsum. 
JUDGE KOUTRAS:. No. no, no. He made a determination 

that the gravity on.two of them wasn't that severe. 

MR. FITCH: As a result of National Gypsum. 

JUDGE KOUTRAS: That's the only reason he went out 

there. 

MR. FITCH: Yes. 

JUDGE KOUTRAS: So you're telling me now that these 

conferences today if he were to go out there to that 

mine next Monday and he would hold a similar type --

would he hold a similar type conference as was held 

on May 24th? 

MR. FITCH: He would be dealing with only the 

citations issued since the last conference session. 

JUDGE KOUTRAS: That's right. And what would he be 

doing with those, the same type of things he did with 

these? 

MR. FITCH: Yes. 

JUDGE KOUTRAS: Looking at them for what, to upgrade 

them or downgrade them? 

MR. FITCH: Upgrading or downgrading but giving the 

operator an opportunity to provide information. 

* * * * * * * * * * 

JUDGE KOUTRAS: Does it have to be at the mine? 

MR. FITCH: We are interpreting the 103(f) to say that 

that first one is part of the inspection and that it 

is going to be at the mine and that it's a compensatory 

session. 

JUDGE KOUTRAS: Why do you say that, because of the 

physical examination provision of the statute that you 

can't examine the mine if you're downtown in MSHA's 

office? 

MR. FITCH: Basically because everybody has goE their 

notes with them, and the mine site is the proper place, 

and 99 percent will be dealt with only at the mine site, 

and that maybe at our discretion we will grant a request 

within ten days to give a conference at the local MSHA 

office where theoretically the company can get in their 

car and drive down to the MSHA office and walk in and do 

a hard sell. 

738 
* * * *· * * * * * * 

JUDGE KOUTAS: If that discretionary meeting is given 

to all parties, downtown at the MSHA district office, 

is the miners' representative -- assume he's one of the 

parties, is he entitled to be present? 

MR. FITCH: He's entitled to be present. 

JUDGE KOUTRAS: Is he entitled to be compensated? 

MR. FITCH: The present administration takes the view 

that he's not. 

JUDGE KOUTRAS: Is this office chitchat, this present 

administration takes the view or is it some place embedded 

in stone? 

MR. FITCH: It's the interpretation of my client that the --

JUDGE KOUTRAS: Where is that? 

MR. FITCH: That 103(f) walk-around pay rights extends 

to conferencing at the mine site and --

JUDGE KOUTRAS: But not downtown under this? 

MR. FITCH: That it does not. 

JUDGE KOUTRAS: Where -- is that written some place, Mr. Fitch? 

Is that in this policy guideline some place? 

MR. FITCH: It's not written. 

JUDGE KOUTRAS: Now, to be consistent why is it not that a 

miners' representative can't be compensated for a conference 

downtown which the very regulation gives them that discretion, 

but they can if they hold it at the mine site? What's the 

distinction? Why in one and not in the other? Don't you 

find some inconsistency in that position? Because if a post 

inspection conference is a post inspection conference that's 

compensable, what difference does it make where it's held or 

when it's held? 

MR. FITCH: Your Honor, lawyers do not always get to argue 

their view of the law and • 

JUDGE KOUTRAS: Well, I'm giving you an opportunity to do 

that here. Don't you find some inconsistency in the Secretary 

saying, look, if· under Part 100~6 here under (a) all parties 

shall be afforded an opportunity to review with MSHA each 

739 . 
citation and order issued during an inspection, what 

that means is, judge, that right after the inspection 

or at least sometime closely after the inspection 

we sit down, the MSHA inspector sits down with mine 

management and the union representative to discuss 

the issues. And this is a lot of give and take, et 

cetera, et cetera. Okay. But ten days later if the 

operator has some additional input that would change 

MSHA's -- I mean the inspector's position or if the 

mining representative has some direct input, he goes 

to the district manager and says, wait a minute, I 

forgot something very important. I want an opportunity 

to be heard again. And MSHA says, fine, we grant you 

that right to meet with the district manager downtown 

at his office, and they all go downtown, but we don't 

compensate you for that. We don't see that as a 

conference. I don't see the distinction; do you? 

MR. FITCH: I would say that a lawyer could conclude 

that those two conferences are similar in nature and that 

they indeed should both be covered by compensation. My 

client's position is that it is a conference which 

takes place off of the mine. There has never been an 

interpretation that compensation coupled with participation 

rights exists off mine property. 

SOCCO's counsel argued that it is clear from Mr. McNece's testimony 

that the May 24, 1982, conference was conducted pursuant to Part 100 of 

MSHA's regulations, that subsequent conferences have been held on either 

a daily or weekly basis involving the application of Part 100, and that 

these are identical to the May 24th conference. However, counsel asserts 

that MSHA has cited no authority to support its position that these 

conferences are compensable. Counsel suggested that the only change has 

been the elimination of the "old assessment conference" at which the 

miners' representative's participation was not compensable and a new 

procedure integrated for determining penalty points. Counsel pointed 

out that he is not arguing that the conferences may not be useful, that 

the UMWA has not been helpful, or that they should not take place. His 

argument, simply stated, is that there should be no right to compensation 

from Southern Ohio for these conferences (Tr. 207-208). 

MSHA's position is that the conference which took place on May 24, 1982, 

was part of the pre- or post-inspection conference concept that has 

evolved under the authority of section 103(f) of the Act, and that these 

conferences at the mine site are properly compensable walk-around conferences 

and that the right to pay is co-extensive with the right~to participate 

in the conference at the mine site (Tr. 208-209). The UMWA concurred in 

MSHA's position (Tr. 209). 

MSHA's counsel took the position that all that is required to invoke 

the section 103(f) compensation and participation co-extensive rights is 

that a conference is held at the mine site related to an inspection related 

to citations, and the fact that the conference may be held well after 

the issuance of the citation being conferenced is not controlling (Tr. 215). 

740 
Posthearing briefs and arguments 

In their posthearing briefs, MSHA and the UMWA make the point that 

Congress intended the miners to be active participants in the inspection 

process conducted at the mine site, including attendance at any opening 

and closing inspection conferences. Citing the legislative history of 

section 103(f), the UMWA argues that if Congress did not expect miners 

to be mere passive observers during the inspection, but to actively 

participate, increase their safety awareness, and be fully apprised of 

the inspection results, then the conferences held in the cases at hand 

must be considered within the scope of section 103(f). Citing testimony 

at the hearing that one focus of discussion during the conferences concerned 

the inspector's determination of whether the violation was "significant 

and substantial", under the Connnission's ruling in Secretary of Labor v. 

Cement Division, National Gypsum Company, 3 FMSHRC 822 (1981), this would 

include a discussion of whether the violation had a "reasonable likelihood 

of resulting in an injury or illness of a reasonably serious nature". 

The UMWA suggests that this type of discussion, centering on the possible 

injury or illness posed by various conditions, is exactly the sort of 

discussion Congress expected the miners to participate in and benefit 

from. 

Relying on Inspector McNece's testimony, the UMWA asserts that until 

last summer, the close-out conference operated essentially as a "one-way 

street" in that MSHA inspectors did little more than inform the operator 

and miner representative of the enforcement action the inspector intended 

to take as a result of the inspection, and while miners and operators 

would know the number of withdrawal orders and citations that were issued, 

they usually knew little else. Further, the UMWA suggests that the 

operator was not informed of the reasoning behind the inspector's findings, 

and that inspectors rarely, if ever, modified their findings or the 

statutory section under which the citation was issued. If the operator 

disagreed with the enforcement action taken by the inspector, the operator 

had to either file a notice of contest with the Connnission or appeal 

the amount of the penalty that was ultimately assessed. 

The UMWA maintains that the current close-out conferences may 

result in the inspector modifying or even vacating various citations he 

has previously issued. This being the case, the UMWA argues that there 

is no way a miner walkaround representative could be kept "fully apprised 

of the results of the inspection" if he does not attend these conferences. 

Since some modifications, such as downgrading a 104(d) violation to a 

104(a) violation, could drastically affect the operator's status under 

the Act, the UMWA suggests that unless he is present at the close-out 

conferences, the miners' representative will have no way of rebutting 

the operator's contentions or of knowing what enforcement action the 

inspector ultimately took as a result of the conditions observed during 

the inspection. Further, since the mine employees have a vital stake 

in seeing that the Act is vigorously enforced as an effective deterrent 

against violations, the UMWA maintains that they will not be able to 

protect that interest if they are precluded from attending the close-out 

conference, since denying pay for the miners who did attend effectively 

precludes their participation. 

741 
The UMWA fails to see the relevance of SOCCO's contention that it 

has no obligation to pay the miners in question because the meetings in 

question were· conducted as part of the penalty assessments procedure 

authorized by section 104 and 110 of the Act. The UMWA asserts that the 

fact that a particular conference might serve a purpose in the Secretary's 

procedure for assessing a penalty does not preclude the conference from 

being a post-inspection conference under section 103(f). The UMWA points 

out that there is nothing in the Act which states that the two events 

are mutually exclusive, nor does it define what constitutes a post-inspection 

conference, but rather, leaves these determinations to the Secretary of 

Labor's discretion. 

Citing the decision in UMWA v. Federal Mine Safety and Health Review 

Commission, 671 F.2d 615 (D.C. Cir. 1982), cert. denied, 74 L. Ed 2d 189, 

another case challenging the Secretary's enforcement of the walkaround 

right wherein the D.C. Circuit Court of Appeals held that the Secretary's 

construction of section 103(f) "is entitled to deference unless it can 

be said not to be a reasoned and supportable interpretation of the Act," 

the UMWA maintains that the Secretary's determination that the meetings 

in question are properly categorized as "post-inspection conferences" 

under section 103(f) is certainly a reasoned and supportable interpretation 

of the Act. 

In further support of its position in these cases, the UMWA points 

out that Section 103(f) refers to conferences "held at the mine", and 

it asserts that the conferences which are at issue in these proceedings 

were in fact held at the mine and that they played an integral part in 

the inspectors' enforcement efforts. The UMWA states further that 

Inspector McNece conceded that certain enforcement actions he had taken 

during his inspection were modified as a result of his meeting at the 

mine, and that the discussions which took place about the gravity and the 

cause of the cited violations contributed to the miners' safety and health 

awareness and their understanding of the Act's requirements, purposes 

which the UMWA contends Congress expected Section 103(f) to serve. 

In response to SOCCO's contention that the meetings in question cannot 

be considered post-inspection conferences because no part of the mine 

was actually inspected on the days the meetings occurred, the UMWA 

argues that the meetings related to inspection activity that had occurred 

within the few weeks or months prior to the meetings in question, and 

since Section 103(f) does not state how long after an inspection a postinspection conference is to occur, the fact that the meetings in question 

took place when they did does not render the Secretary's interpretation 

unreasonable. 

The UMWA concedes that the meetings that gave rise to the instant 

proceedings are "unique" in that they were the first ones held after MSHA 

decided to expand the nature of the post-inspection conference to provide 

operators with the opportunity to explore the inspector's findings and offer 

rebuttal evidence. As a result, the UMWA admits that the conference 

in question here took longer than usual, and the discussions related to 

all the citations that had been issued but not yet assessed under the new 

procedures of Part 100. 

742· 
In response to SOCCO's alternative contention that Section 103(f) 

mandates pay only for the actual inspection and not for the pre- and 

post-inspection conferences, the UMWA asserts that the legislative history 

of the 1977 Act reveals that the concept of inspection was broadened to 

· include the pre- and post-inspection conferences and that Congress did 

not intend to eliminate the pay requirements during the period of the 

miner's participation in such conferences. Citing its earlier assertion 

that the current walkaround provision was adopted from the Senate version 

of the 1977 Act, the UMWA quotes from the Senate Report which refers 

to the pay requirement as follows: 

Section 104(e) contains a provision based on 

that in the Coal Act requiring that representatives of the operator and miners be permitted 

to accompany inspectors in order to asist [sic) 

in conducting a full inspection • . . It is 

the Conunittee's view that such participation will 

enable miners to understand the safety and health 

requirements of the Act and will enhance miner safety 

and health awareness. To encourage such miner 

participation, it is the Committee's intention that 

the miner who participates in such inspection and 

conferences be fully compensated by the operator 

for the time thus spent. To provide for other 

than full compensation would be inconsistent with 

the purpose of the Act and would unfairly penalize 

the miner for assisting the inspector in performing 

his duties. (Emphasis added.) Senate Report, supra 

at 28-29. 

Finally, the UMWA argues that SOCCO's narrow construction of Section 

103(f) not only conflicts with the legislative history, but is inconsistent 

with the approach taken by the D.C. Circuit in UMWA v. FMSHRC, supra. 

In that case, the UMWA points out that like the instant proceeding, the 

Court was confronted with an interpretation of Section 103(f) that attempted 

to distinguish between. the miners' participation right and the right to 

pay. The operators argued successfully before the Review Commission that 

miners were entitled to participate in all inspections, but that section 

103(f) required operators to pay miners only during their participation 

in the quarterly inspections of the entire mine. However, the UMWA 

points out further that after thoroughtly examining the language, the 

legislative history, and the purposes of Section 103(f), tre Court 

concluded that: 

the right to walkaround pay is clearly coexten; 

sive with the right to accompany the inspector 

under subsection (f) [of sec. 103) and there is 

simply no basis for reading it as supporting 

the bifurcation of participation and compensation rights espoused in the Commission's decisions." 

UMWA v. FMSHRC at 626. 

743 
The UMWA suggests that if, as the Court held, the right to compensation 

is coextensive with the right to participate under Section 103(f), then 

miners cannot be denied pay for their participation in post-inspection 

conferences. The UMWA concludes that the miners' participation right 

under Section 103(f) is tied to the inspector's enforcement responsibilities 

at the mine, that Congress expected miners' representatives 'to assist 

the inspector in carrying out his duties, and the fact that the Secretary 

changes the method by which inspectors carry out their enforcement 

obligations should not deprive miners of their participation right under 

Section 103(f). If the inspector's enforcement duties have been expanded 

to include a periodic review of the citations and orders issued at the 

mine, then the UMWA suggests that Section 103(f) requires that the miners' 

participation right also be expanded to coincide with such changes. 

In its brief, SOCCO argues that the facts here show that prior to 

May 24, 1982, MSHA's established procedure involved meetings held 

approximately once each month by an MSHA assessment officer, off mine 

property, usually in Lexington, Kentucky, and that its safety representative 

Carl Curry attended, but representatives of the miners did not, even 

though they had a right to attend. SOCCO asserts that at such meetings 

various factors ("gravity points")--such as the degree of negligence, the 

degree of good faith, and the number of persons potentially affected--

were discussed as they might apply to each Citation that had been issued 

[Tr. 229, 230). SOCCO maintains that except for the further fact that 

(a) the inspector now checks boxes on the bottom of the Citation form 

instead of having filled out a "gravity sheet", and (b) the discussion 

now centers upon "points"--which have dollar values--instead of directly 

upon dollars, the newly promulgated Part 100 meetings are essentially the same 

as the old assessment officer meetings [Tr. 50, 51, 66, 243, 248-250, 

254, 268). Carl Curry testified that at the new Part 100 meetings, such 

as those of May 24, 1982, he presents the same types of arguments, based 

upon the same considerations, as he once did at meetings before an 

MSHA assessment officer [Tr. 280, 281). 

In further support of its factual arguments, SOCCO points out that 

when Inspector McNece performs his actual physical inspection duties at 

the mine, he typically discusses at that time any potential violations 

that he might discover with the management and miner representatives 

(the "walkarounds") and anyone else who might be in the vicinity of the 

discovery [Tr. 81, 82). In addition, at the end of the inspection day, 

he frequently confers with the walkarounds about anything noteworthy 

from the inspection [Tr. 82, 83). However, on the facts of this case, 

SOCCO points out further that Mr. McNece and Mr. Koons clarified the 

fact that the meetings of May 24, 1982--as well as all other subsequent 

meetings that have been held pursuant to Part 100--were different from 

the informal conferences that occur during and inunediately after a physical 

walkaround inspection (Tr. 84-91, 144, 145, 179, 180). From the testimony 

of all three witnesses at the hearing, SOCCO concludes that it is evident 

744 
that this difference entails a focus upon the assessment of "gravity 

points" as required in such meetings by Part 100 (Tr. 86, 87, 97, 98, 

179, 180). SOCCO cites the following testimony by Mr. Curry and Mr. Koons 

in support of its argument (Tr. 243; 161) ·: 

The meetings were conducted very similar to the 

assessments conference we [previously had] attended 

in Lexington ••• [Tr. 243]. - Curry. 

* * * 

They [MSHA] done away with the assessment officers 

and they was doing it on the mine site conference 

[Tr. 161]. - Koons. 

SOCCO cites the testimony of Mr. Curry indicating that in approximately 

early May 1982, MSHA had held a meeting in New Lexington, Ohio, where it 

was explained that, under new Part 100, MSHA was doing away with the 

conferences before assessment officers and replacing them with conferences 

held by MSHA inspectors at the mine site [Tr. 233, 234]. The meetings 

held on May 24, 1982, which are the subject of two of the Citations 

contested here, were the first two such meetings Curry had attended 

[Tr. 227, 231]. At the prior MSHA meeting in New Lexington, Curry was 

provided with a hand-out which, similar to Part 100, equated "gravity 

points" with dollar values which he could, and did, use during the meetings 

of May 24 [Tr. 234, 239, 240, 249, 250, 268]. Recognizing the fact that 

the safety of miners is the foremost concern of a SOCCO Safety Supervisor, 

SOCCO nonetheless argues that at the assessment stage of any proceeding 

that supervisor must be vigilant about savings dollars and cents (Tr. 261-262), 

and maintains that as of May 24, 1982, MSHA had shifted the forum for 

this function from assessment conference to Part 100 conferences (Tr. 228-234). 

SOCCO has submitted that the evidence regarding the third Citation 

(Raccoon No. 3 mirie, Citation No. 1225867, LAKE 82-95-R) would not be 

materially different from the evidence concerning the first two, as 

summarized above [Tr. 11]. SOCCO also concedes that miner representatives 

Bob Koons and Frank Goble were not paid for their attendance at the new 

Part 100 meetings held on May 24, 1982. 

With regard to its legal arguments in this case, SOCCO points out 

that each of the citations in these proceedings allege violations of 

Section 103(f) of the Act, and that this section of the Act, according 

to its own terms, concerns only "inspections, investigations, and recordkeeping." Section 104 addresses "citations and orders," and Section 105 

provides a "procedure for enforcement" of such citations~and orders. 

Section 110 speaks to the "penalties" that might be assessed based 

upon action taken under Section 104, Section 105 or Section 107. 

SOCCO argues that the evidence shows that the May 24, 1982, meetings 

that resulted in the contested Cit~tions were held pursuant to new Part 100 

of Title 30, Code of Federal Regulations. In turn, Part 100 states 
that its purpose is to set forth "criteria and procedures for the 

proposed assessment of civil penalties under sections 105 and 110 

SOCCO notes that MSHA did not utilize Section 103 of the Act, which 

concerns inspections, in its promulgation of Part 100. For that 

matter, Section 104, concerning citations, was not employed either. 

Rather, Part 100 was proposed, revised and finalized. by MSHA as an 

extension of its enforcement and penalty ("assessment") functions. 

Part 100 involves the further steps that logically occur well after 

II 

the issuance of a citation during an inspection: that is, the assessment 

of a penalty as an enforcement matter. 

SOCCO states that it does not contend that miner participation 

in important safety proceedings is, or should be, curtailed. Rather, 

its focus is on the Congressional intent that coal mine operators 

should bear the direct financial burden of supporting such participation 

only insofar as is set forth in Section 103(f) of the Act. Leaving 

aside the existing controversies as to the exact scope of the miners' 

right to be compensated by operators under Section 103(f), whatever 

the scope of this section might be, SOCCO maintains that it is clear 

that this right pertains only to inspections, and is unaware of the 

advancement of any allegation in any forum that this 103(f) right applies 

to any function other than inspection. 

In response to MSHA's arguments at the hearing that Part 100 meetings 

constituted extensions of its Section 103 inspection functions, and thus 

were still "inspections", SOCCO finds no logic in such a position and 

maintains that the legislative fact is that such extensions represent, 

in actuality, a separate function: assessment. SOCCO maintains that 

Congress treated this function separately from inspection (Sections 105 

and 110 as opposed to Section 103) and that MSHA has honored and preserved 

the distinction in its promulgation of Part 100 as setting forth "the 

criteria and procedures for the proposed assessment of civil penalties. 

See subsection 100.1 of Part loo:• To now contend that Part 100 is part 

of inspection, MSHA must ignore the structure of the Act as well as its 

own characterization of its purpose and authority for promulgation of 

these regulations. 

SOCCO submits that it is precisely because the miners' Section 103(f) 

right to compensation is tied directly to the inspection function which 

explains why MSHA has strained so mightily in these matters to attach an 

"inspection" label to the meetings of May 24, 1982. At the outset, 

MSHA Inspector McNece characterized each meeting as "a regular inspection 

of the mine which was pertaining to conference and modification of citations" 

in the language he employed in each contested Citation. SOCCO strongly 

suggests that the very choice of an employee who is labeied by MSHA 

as an "inspector" to hold the meetings required under Part 100 might 

reflect an additional MSHA attempt to fit the square "assessment" peg 

into the round "inspection" slot, and that MSHA's insistence that Part 100 

meetings be held at mine sites -- despite the fact that the subject matter 

74B 
of such meetings does not give rise to any logical reason why they might 

better be held there -- serves only to advance MSHA's effort to push an 

unwarranted cost upon the operators. Finally, SOCCO suggests that 

the constant use of the terms "conference" and "conferencing" during 

the hearing (and in much of the written material, too) to refer to 

meetings to review citations, as now required by Part 100, might well 

be designed to ram Part 100 through Section 103(f) of the Act -- which 

speaks of "pre- or post-inspection conferences" -- and into the inspection 

functions delineated by the Act. 

SOCCO submits that (1) MSHA's efforts to place an "inspection" 

label on Part 100 meetings, (2) its use at such meetings of an employee 

it has labeled as an "inspector," (3) its insistence that such meetings 

occur at mine sites, and (4) the imposition of the Section 103(f) term 

"conferences" are all intended to achieve a result neither intended by, 

nor found in, the Act and the regulations promulgated pursuant thereto. 

SOCCO concludes that the new Part 100 regulations, including the requirement 

for review which prompted the May 24, 1982, meetings at issue in these 

proceedings, fulfills assessment functions -- and clearly says so --

and not inspection functions. Thus. SOCCO concludes that there is no legal 

requirement that it pay any Union walkaround representatives for the time 

such a representat_ive may spend on the types of conferences that took place 

in these proceedings. SOCCO concludes further that the meetings held 

in these cases were not "conferences" within the meaning of Section 103(f), 

because they were meetings held in accordance MSHA's Part 100 assessment 

duties to provide a forum for review of previously issued citations and 

orders, and nowhere in section 100.6 do the terms "representative of the 

operator" or "a representative authorized by his miners" appear. Thus, 

SOCCO maintains that the structure and language of Part 100, for an 

"opportunity" to review by interested "parties" cannot be equated with 

a "conference" for "representatives" of operators and miners which may 

be part of the inspection process. SOCCO submits that I should reject 

MSHA's "strained attempt" to label the opportunities provided to review 

citations--as mandated by regulatory section 100.6(a)--as a "conference" 

falling within the ambit of Section 103(a) of the Act. 

SOCCO argues that the only types of conferences mentioned in Sections 

103(a) and (f) of the Act are pre- and post-inspection conferences, and 

in support of this conclusion, it cites the remarks of Representative 

Joseph M. Gaydos prior to House acceptance of the Joint Conference Report 

regarding the Act, as follows: 

The conference substitute expands the concept 

of miners' participation in inspections by 

authorizing miners' representatives to participate not only in the actual inspection of a 

mine, but also in any pre- or post-inspection 

conference held at that mine. The presence of 

such representative at an opening conference 

aids miners in understanding the concerns of 

the inspector, and attendance at the closing 

conference enables miners to be apprised more 

fully of the inspection results. 
Legislative History of the Federal Mine Safety 

and Health Act of 1977 (Co1Illll. Print 1978), 

1361 "(emphasis supplied). 

SOCCO maintains that under the evidence presented in the cases at 

hand, it is clear that pre-inspection and close-out conferences, as 

referred to by Congressman Gaydos, have occurred and still do occur 

unaffected by the "Citation Conferences" mandated by Part 100. Preinspection conferences are to impart information as to what the inspection 

is intended to entail. The post-inspection, or close-out, conferences 

are used to go over the important elements of the inspection and to discuss 

specific ways to make the mine environment safer. Fulfilling separate 

purposes, Part 100 "Citation Conferences" are opportunities for interested 

parties to review previously issued citations, with special reference 

to "gravity" fa:!tors. Such a meeting is far afield from pre- and postinspection conferences -- as set forth in the Act, as intended by Congress, 

and as established through experience. It is apparent, therefore, that 

a "Citation Conference" is not a Section 103(f) conference, and cannot 

be used as a basis to require operator payment to miner representatives. 

In conclusion, SOCCO maintains that the language of Section 103(f) 

is clear and unambiguous, and only provides compensation of a representative 

of the miners for his participation only in inspections, and not in "conferences" 

or any other type of meetings. Citing a number of court cases at page 19 of 

its brief, SOCCO submits that the plain terms of Section 103(f) admit 

to no ambiguity as to this issue, and that the language authorizing 

what is co1Illllonly known as a "walkaround" to accompany an MSHA inspector 

"during a physical inspection of any coal ••• mine" is certainly clear. 

In the next phrase of the same sentence the language "such inspection" 

is used: an unambiguous reference back to the prior language "a physical 

inspection of any coal •.• mine". Within the very phrase wherein the 

"such inspection" language is employed, something further is added: 

" ••• and to participate in pre- or post-inspection conferences [emphasis 

supplied]." The fact that the connector "and" is used, and the fact that 

the "conferences" mentioned are those that occur before ("pre") or after 

("post") an "inspection," leads inescapably to the conclusion that a 

"conference" is not a part of an "inspection" under Section 103(f). 

Skipping over the next sentence of Section 103(f), SOCCO argues 

that the following sentence provides the miner compensation factor that 

MSHA insists has been triggered in these cases: " ••• shall suffer 

no loss of pay during the period of his participation in the inspection 

made under this subsection." Nothing more than this is stated in the 

Act about the obligation of an operator to compensate a miner representative. 

Nothing has been added to this direct statement that might lead to any 

reasonable infere~ce as to what the language means. An lnspection is 

not a conference, or any other type of meeting. The language of subsection (a), 

referenced in (f), does not say anything about conferences, or any other 

types of meetings, that might logically be viewed as having any effect 

whatsoever upon the distinction drawn in subsection (f) between an 

748 
inspection and. a conference. Moreover, the ordinary definitions and 

usages of these two nouns show that they refer to separate and distinct 

types of occasions. Section 103(f) requires compensation for a certain 

category of "inspection," but does not mandate compensation for a 

"conference". 

SOCCO's proposed conclusions of law include the following: 

1. The procedures set forth in 30 C.F.R., Part 100 

(47 Fed. Reg. 22294, May 21, 1982), are for the 

purpose of proposing the assessment of civil 

penalties under Sections 105 and 110 of the Act. 

2. Section 103, including subsection 103(f), of the 

Act concerns inspection functions, and does not 

involve the assessment of civil penalties. 

3. The right of a miner representative to be compensated by the operator in conjunction with that 

representative's participation in an inspection 

(as defined and limited by Section 103) has no 

application to a proceeding under Part 100. 

4. SOCCO has no duty under subsection 103(f) to 

compensate a miner representative for his participation in the meetings of May 24, 1982, or any other 

meetings held pursuant to Part 100. 

S. In the alternative, and as wholly independent 

bases for reaching the same conclusion as is set 

forth in the immediately preceding paragraphs, SOCCO 

suggests that: 

(a) an "opportunity to review" as described 

in 30 C.F.R. § 100.6(a) is not a "conference" 

as that term is used in Section 103(f) of 

the Act; and 

(b) Section 103(f) does not mandate payments by 

operators to miner representatives for their 

participation in any "conference". 

Findings and Conclusions 

The Secretary of Labor has the authority to promulgate mandatory 

safety and health standards and to enforce those standards through 

mine inspections. Upon inspection of the mine, if violations are found 

to exist, the inspector may issue citations and withdrawal orders. 

Section lOS(a) of the Act provides that if the Secretary of Labor 

749 
issues a citation or order, "he shall ••• notify the operator ••• 

of the civil penalty proposed to be assessed •• , • for the violation 

cited and that the operator has 30 days within which to contest the 

••• proposed assessment of penalty." 30 U.S.C. 6 815(a) (emphasis 

added). If an operator does not contest the Secretary's proposed penalty 

assessment, by operation of law the proposed assessment becomes· a final 

order not subject to review by any court or agency. 

When an inspector finds a condition or practice in a mine that he 

believes violates any mandatory safety or health standard, he will 

inform the mine operator of that fact so that corrective action may be 

taken. The usual practice for citations which do not present imminent 

danger conditions, or conditions giving rise to other withdrawal orders, 

is for an inspector to make some notations as to the conditions he observes 

and to note the specific regulation cited. Absent any withdrawal orders, 

the inspector continues on his inspection rounds, and at the conclusion 

of the inspection, and usually while on the surface, he will reduce his 

findings to writing on a citation form and will serve it on the operator. 

At that point in time, the inspector has already concluded that a violation 

exists, and both the miners' and mine operator's representatives are 

apprised of the conditions or practices observed and cited. 

In addition to the arguments made at hearing, and its references 

to the legislative history and the court decisions in UMWA v. FMSHRC, 

supra, and Magma Copper Company v. Secretary of Labor and the FMSHRC, 

645 F.2d 694 (9th Cir. 1982), MSHA argues that liberal construction of 

the Act dictates that great deference should be given to its position 

in this case in order to help achieve the Act's overall objectives of 

improving health and asfety conditions in the nation's mines. 

The issue in UMWA v. FMSHRC was whether miners' representatives 

were entitled to compensation under section 103(f) for the time spend 

accompanying MSHA inspectors on "spot inspections", or, as held by the 

Commission in that case, whether compensation is limited to the four 

"regular inspections" required by section 103{a) of the Act. Magma 

Copper involved the issue of whether section 103(f) requires that, when 

an inspection of a mine is conducted by more than one inspector, each 

of whom acts separately and inspects a different part of the mine, one 

representative of miners may accompany each inspector without loss of pay. 

In UMWA v. FMSHRC, supra, at page 619, the Court observed that the 

scope of a miner representative's right to participate in mine inspections, 

and his right to do so without loss of pay, are governed exclusively 

by sections 103(a) and (f) of the Act. The lead-in language to subsection 

(b) adds the caveat subject to regulations issued by the Secretary. 

Therefore, a critical question in this case is whether the regulations 

promulgated by the Secretary, as interpreted and applied by MSHA on 

the facts of this case, are in accord with the requirements of the Act. 

If they are not, a second question is whether the statute itself mandates 

that miners representatives be compensated for the time spent at the types 

of "meetings" or "conferences" which took place in these cases. 

750 
Section 103(f) clearly and unambigously mandates that miner 

representatives be given an opportunity to (1) accompany an inspector 

during the physical inspection of any mine for the purpose of aiding 

such inspection; and (2) to participate in pre- or post-inspection 

conferences held at the mine. It also seems clear to me that the clear 

and unambiguous language of Section 103(f) mandates that miner representatives 

be compensated during the time spent on the mine inspection. What is 

unclear is whether Congress intended that miners be compensated for 

time spent on conferences or meetings held at the mine after the actual 

physical inspection of the mine is completed. 

On April 25, 1978, the Secretary issued his Interpretative Bulletin 

of Section 103(f), 43 Fed. Reg. 17546-17549 (exhibit R-3), and the 

stated purpose of the bulletin is reflected as follows: 

The purpose of this Bulletin is to make public 

certain interpretations of section 103(f) of 

the Act, which will guide the Secretary of Labor 

in the performance of his duties thereunder unless 

and until otherwise directed by authoritative 

decisions of the Federal Mine Safety and Health 

Review Commission (Commission), or of the courts, 

or until the Secretary concludes, upon reexamination of an interpretation, that modification is 

appropriate. 

I have closely scrutinized the bulletin in question and can find 

no clear or concise language indicating the specific right of miners' 

representatives to be compensated for conferences held at the mine. The 

bulletin includes examples of the types of section 103(f) activities which 

give rise to participation and compensation rights by miners' representatives, 

and the types which do not. In each instance where a miner is entitled 

to participate and to be compensated for that participation, MSHA's 

condition precedent and emphasis is on a physical inspection of the mine. 

The types of activities giving rise to section 103(f) rights 

are sunnnarized as follows at 43 Fed. Reg. 17548: 

(1) "Regular inspections," 

(2) The various kinds of "spot inspections," 

(3) Inspections conducted at the request or 

miners of miners' representatives, 

(4) Inspections at especially hazardous mines, 

including mines liberating excessive amounts 

of explosive gases, 

(5) Inspections made in conjunction with 

accident investigations. 

The explanatory language which immediately follows states as follows: 

It must be emphasized that MSHA carries out a 

wide range of activities at minesites. The 

751 
administrative classification of a particular 

activity as an "inspection" does not necessarily 

control the applicability of section 103(f). 

While the list summarized above is generally inclusive of activities giving rise to section 

103(f) rights, unusual factual situations may 

arise which require resolutions on a case-bycase basis. The general rule will be that the 

participation right under section 103(f) arise 

when: (1) an inspection is made for the purposes 

set forth in section 103(a), and (2) the inspector 

is present at the mine to physically observe or 

monitor safety and health conditions as part of 

direct safety and health enforcement activity. 

(Emphasis added) 

And, at 43 Fed. Reg. 17547: 

Section 103(f) does not necessarily apply to every 

situation in which a representative of the Secretary 

is present at a mine. Rather, section 103(f) · 

contemplates activities where the inspector is 

present for purposes of physically observing or 

monitoring safety and health conditions as part 

of a direct enforcement activity. This is indicated by the text of section 103(f) itself, which 

refers to "physical inspection" where the presence 

of miners' representatives will "aid" the inspection. 

(Emphasis added) 

The types of activities which do not give rise to miners' representative 

participation and compensation are noted at page 17548 of the bulletin, 

and they include the following: 

1. Technical consultations. 

2. Demonstration of prototype equipment. 

3. Safety and health research. 

4. Investigations and other activities 

pursuant to petitions for variances. 

5. Field certification of permissible equipment. 

Included in the explanation of the matters excluded from miner 

representative participation and compensation, is the following, at 

page 17548: 

In these types of activities, while there 

may sometimes be a need to physically observe 

or monitor certain conditions or practices, 

this aspect of the overall primary activity 

is incidental to other purposes. Although 

752 
enforcement action could result from certain of 

these activities, the relationship of the activities 

to enforcement of safety and health requirements is 

indirect, or the activity is being carried out in 

accordance with other duties under the Act. The 

continuing presence of a representative of miners in 

all phases of these activities would not necessarily 

aid the activity. (Emphasis added). 

Exhibit R-4 is a copy of MSHA's Policy Memorandum No. 83-19-C, 

dated June 16, 1983, and exhibit R-5 is a copy of Policy Memorandum 

No. 82-21-C, dated June 24, 1983, and they are both signed by the 

Administrator for Coal Mine Safety and Health, Joseph B. Lamonica. 

The June 16, 1983, memorandum generally explains the rights of 

parties for review of citations and orders under the newly promulgated 

Part 100 regulations, 30 CFR 100.6. The memorandum explains that the· 

review process pursuant to section 100.6(a) includes an opportunity for 

all parties to review with MSHA each citation and order issued during 

an inspection, and that this would generally occur at the inspection 

close-out conference. For issues not resolved at this level of review, 

the memorandum goes on to explain that pursuant to section 100.6(b), 

an additional opportunity is available to the parties by means of a 

discretionary conference with MSHA's District Manager or his designee. 

The June 24, 1982, memorandum in its entirety, states as follows: 

The inspection close-out conference should be held, 

in most instances, immediately after the completion 

of an inspection. This procedure will normally allow 

for the timely discussion of inspection findings and 

will not cause undue delays in the processing of 

cited violations. When an inspection is on-going 

or takes longer than one week to complete, a 

different procedure is necessary so that findings 

may be conferenced and processed with reasonable 

promptness. In order to ensure the timely discussion 

of the issues, an inspection close-out conference 

on cited violations should be held at lease weekly 

during all inspections that are greater than one week 

in duration. 

At many complex multi-shift operations, short close-out 

conferences have been held at the end of eacg shift 

or at the end of each inspection day. This procedure 

may continue to be used if agreeable to the parties 

involved; however, the last close-out conference of 

the week should be used to afford all involved parties 

the opportunity to discuss the weekly findings and to 

753 
extablish the control date for the health and safety 

conference ten-day request period. The weekly closeout conference may be postponed and rescheduled if a 

different time is more convenient to the parties involved. 

At page 10 of its brief, MSHA implies that the conferences in question 

in these proceedings were incorporated into its inspection procedure by 

the May 21, 1982, new Part 100 regulations. Recognizing the fact that 

its Interpretative Bulletin does not directly address itself to the 

question presented here, MSHA nonetheless argues that the Secretary's 

determination, based on the principles included in the Bulletin, that 

the conferences in question are covered by the statutory language of 

section 103(f), is entitled to deference because it is consistent with 

a construction of the Act which best effectuates the legislative purpose. 

MSHA asserts that while the conference may have a penalty result 

or effect, the true purpose of the conference is to determine whether 

the inspector has properly analyzed the facts associated with each citation 

and to allow the parties an opportunity to correct misunderstandings or 

improper findings and conclusions. Any penalty effect would not come 

until after a determination has been made of the accuracy of the findings 

that the inspector is required to make as part of the citation issuing 

process. Since the inspector must make a determination on whether a 

violation is significant and substantial, as well as general findings on 

negligence, gravity, and good faith abatement, such findings are not 

susceptable to bargaining, but may be changed based on facts which the 

inspector may not have been aware of at the time the violation was issued. 

Thus, the ability to have this conference at the mine site, in the presence 

of all parties, implements the pre- and post-inspection conference concept 

included in section 103(f) more fully than the prior assessment procedure 

which have been replaced by MSHA's new procedures. 

MSHA rejects out of hand the assertion by SOCCO that the mine 

conferences authorized by 30 CFR Part 100.6 are merely a replacement of 

the old assessment conferences previously held in MSHA's district offices. 

MSHA maintains that it is not, and has never been, its intent that the 

new health and safety conference would serve as a retitled assessment 

conference. MSHA maintains that the new procedures are directed at safety, 

and while civil penalties may be the ultimate result of all citations, the 

precise penalty is determined on the inspector's findings, but not by 

the inspector. The mine site conferences are simply an amplification 

and expansation of the prior existing close-out conferences conducted after 

all mine inspections. 

Both MSHA and the UMWA emphasize the fact that miners have to play 

an active part in the enforcement of the Act and that achievement of 

this goal is dependent in great measure upon the active but orderly 

participation of miners at every level of safety and health activity. 
While I do not dispute this, the fact is that miners are not given 

the right to compensatory participation at "every level of safety 

and health activity". One example of this are the exclusions itemized 

at 43 Fed. Reg. 17548, whereby miners may not participate and be 

compensated under section 103(f) in some rather basic areas of mine 

safety and health. Another example is section 100.6(b) of MSHA's 

regulations. Under this section, a mine operator has an opportunity for 

a "manager's conference" with MSHA's district office officials, and 

at that conference the operator has a second opportunity to seek further 

modifications and revisions in any citations or orders which may have 

been discussed at the first conference held at the mine. Both MSHA 

and the UMWA concede that while miners' representatives may be present 

at this conference, they are not eneitled to compensation under section 

103(f) because the conference is held away from the mine. Without compensation, a miners' representative is effectively excluded from any participation. 

A third, and most important example of what I believe to be a 

contradictory position taken by the UMWA and MSHA is the fact that in 

any given case, the miner representative who participates in the so-called 

weekly or monthly close-out conferences may not be the same miner 

representative who walked around with the inspector who issued the citations 

or orders which are subsequently "conferenced" well after the date of 

their issuance. Other than reviewing a piece of paper, I fail to comprehend 

how that mine representative, who is not present during the physical 

inspection of the area of the mine cited, and who has no personal knowledge 

of the conditions observed by the inspector who issued the citation, 

can make any intelligent or rational contribution to any discussion 

concerning the violative conditions, particularly where the discussions 

take place well after the fact, after the mine conditions have changes, 

and in many cases, after abatement has taken place. 

It is clear from the record in these cases that the miners' representatives who were not compensated for their particiaption in the conferences 

which took place on May 24 and 26, 1982, were not present as the walkaround 

representatives during the actual physical inspections which gave rise 

to the issuance of all of the citations which were issued during those 

inspections, and which subsequently became the subject of the conferences 

in issue. Mr. Koons confirmed that there could have been four to six 

different walkaround representatives on the inspections (Tr. 157-158). 

Further, the record here shows that the citations which were the subject 

of the May 24, 1982, conferences conducted by Inspectors McNece and Beck, 

were issued during mine inspections conducted on March 3, 5, 9, 16, 19, 

April 21, 26, 28, and May 5, 7, 10, and 13, 1982 (exhibit C-1), and notations 

on this exhibit reflect that they were served on five different company 

management representatives who accompanied the inspector, and Mr. Curry 

was not one of them. • 

Given the above circumstances, I again fail to comprehend how any 

meaningful safety discussions could have taken place on May 24 and 26, 1982, 

755 
apart from mine management's efforts to reduce the inspector's "S&S" 

findings to· "non-S&S". Addressing the "uniqueness" of these cases, 

MSHA's counsel conceded that it is not the usual practice to hold 

inspection close-out conferences two months after citations are issued, 

and he conceded further that a conference held on May 24th to address 

conditions which were cited the previous March 3d, would not allo~ for 

any meaningful discussion of the conditions or problems cited in the 

citation (Tr. 210). 

At page five of its brief, the UMWA states that under MSHA's current 

procedures, "the close-out conference could result in the inspector changing 

his opinion about whether the violation was significant or substantial, 

or whether it was caused by the negligence of the operator". Should this 

occur, the UMWA goes on to state that "the operator is free to commit 

these violations over and over without fear of a withdrawal order under 

section 104(e)." If this is the case, then the UMWA should be arguing 

for repeal of the regulation which affords a mine operator an opportunity 

for such a conference. 

My observation is that it is not unusual for an inspector to change 

his mind. Such changes in an inspector's "S&S" findings are sometimes 

made by an inspector during trial testimony, they are sometimes modified 

by an inspector after consultation with MSHA's trial counsel in advance 

of a trial, and they are sometimes the subject of "settlement negotiations" 

between trial counsel. Of more significance is the fact that under 

MSHA's regulatory section 100.6(b) and (d), a mine operator has an 

opportunity at the "Manager's Conference", at which a miner representative 

may not be present because he is not entitled to compensation, to seek 

further modification or changes in the inspector's findings, and examples 

of such changes are the following: 

downgrading an "S&S" citation to "non-S&S". 

vacating an imminent danger order issued under 

section 107 (a). 

modifying a section 104(d)(l) order to a section 

104(a) citation. 

convincing the inspector to change his gravity or 

negligence findings by checking a different box 

on the citation form. 

During the hearing, Inspector McNece was of the opinion that Part 100 

does not provide for compensation for miners' representatives who attend 

the discretionary "management conference" pursuant to section 100.6(c), 

but that compensation is required for the "initial conference" (Tr. 103). 

In response to my inquiry to pinpoint the regulatory language to support 

the inspector's opinion, MSHA's counsel stated that compensation for 

conferences at the mine site comes directly from Section 103(f) of the Act, 

756 
and that it is .a statutory right and not a regulatory right .(Tr. 105). 

In further explanation of the compensatory nature of the two conferences 

authorized by section 100.6, MSHA's counsel stated that ''we are 

interpreting the 103(f) to say that that first one is part of the 

inspection and that it is going to be at the mine and that it's a compensatory 

session" (Tr. 110). When asked why the initial conference must be hel<l at 

the mine, counsel re.plied "so that eve-cybody is around who is involved" 

and "everybody has got their uotes wit;h them" (Tr. 105, 111). 

Neither the Act, the Secretary's regulations, his interpretative 

bulletin, o.r the policy memorandums cited previously in this decision, 

define the terms "pre-inspection conference" or "post-inspection conference". 

Further, while the legislative history citation to the Senate Report 

(Pg. 15 of this decision), uses the terms "opening" and "closing" 

conferences, the other citations to the legislative history contain no 

such terminology, and section 103(f) of the Act contains no such 

language. I conclude that the terms "pre" and "post" have the same 

meaning as the terms "opening" and "closing" insofar as the application 

of section 103(f) to the facts of these cases are concerned. 

In practice, I believe that one can reasonably conclude that a 

"pre-inspection conference" takes place after an inspector arrives 

at the mine, identifies himself to the mine operator, and states his 

business. At that point in time the "inspection party" is assembled, 

and its members include a representative of the mine operator and the 

employee "walkaround" representative. The inspection party collectively 

chart out the metes and bounds of the inspection and they proceed, as a 

group, to physically inspect the mine. The preliminary discussions which 

take place prior to any actual inspection can be loosely characterized 

as a "pre-inspection conference". 

If the inspector finds any conditions or practices which he believes 

warrant the issuance of citations or orders, his usual practice is reduce 

his findings to writing from notes or other observations made during his 

inspection, and he does this by use of the citation form which he serves 

on the mine operator or his representative. During this process, the 

other members of the inspection party may or may not be present. If 

they are, they have an opportunity for some input or comment as to the 

inspector's rationale for issuing a citation or order, his fixing of an 

abatement time, etc., etc., and these discussions and exchanges may 

loosely be characterized as a "post-inspection conference". 

My observations concerning the meaning of "pre-inspection" and "postinspection" conferences are not too far afield from those expressed by the 

UMWA's former counsel, J, Davitt McAteer of the Center for Law and Social 

Policy, in his informative Miner's Manual, . at pg. 296: as follows: 

Usually when the inspector arrives at the mine, he 

goes to the mine office and meets with the company 

officer to explain what he was come to inspect and 

ask questions about 1problems. That is the pre-inspection 

conference. (Your representative has the right to 

attend this meeting and to be paid (COAL: Act 103(f)). 

757 
Your representative must let MSHA know that he 

wants to be called when the inspector arrives. 

At the meetings, your representative should explain 

the miners' concerns and point out problems. 

After the inspection, the inspector again meets 

with the company. This is the post-inspection conference, and your representative has the right 

to go and be paid. The inspector will discuss the 

problems and violations he found and will talk about 

fixing them in a certain amount of time. He may 

issue citations (notice or orders) for violations. 

In the aforementioned circumstances, one may reasonably conclude 

that the time spent by the miner "walkaround" representative during the 

pre- and post-inspection "conferences" incident to the physical inspection 

of the mine which took place that same day is time spent as part of the 

inspection and therefore compensable under section 103(f). As a matter 

of fact the legislative history found in the Senate Report cited by 

the UMWA at page 15 of my decision here, as well as the remarks by 

Congressman Gaydos, cited by SOCCO at pages 19-20 herein supports such 

a conclusion. I take note of the fact that SOCCO failed to include 

in its brief the second paragraph of Mr. Gaydos' remarks, which are 

as follows: 

The conference substitute additionally authorizes 

the Secretary's representative to permit more than 

one miner representative to participate in an 

inspection and in inspection-related conferences. 

However, it provides that just one such representative 

of miners who is also an employee of the operator, 

is to be paid by the operator for his participation 

in the inspection and conferences. (Emphasis added). 

I also take note of the fact that the UMWA failed to include the 

following statements from its citation to the Senate Report 

* * * To encourage such miner participation it is 

the Committee's intention that the miner who 

participates in such inspection and conferences be 

fully compensated by the operator for the time thus 

spent. To provide for other than full compensation 

would be inconsistent with the purposes of the Act 

and would unfairly penalize the miner for assisting 

the inspector in performing his duties. * * * 

(Emphasis added). 

I take further note of the fact that none of the parties in this 

case saw fit to cite the remarks of Congressman Carl Perkins which appear 

at pages 1356-58, Subcommittee on Labor of the Senate Committee on Human 

Resources, 95th Cong., 2d Sess., Legislative History of the Act, (1978), 

I suspect that the reason for this is that in prior litigation in connection 

758 
with the right of a miner representative to be compensated for the 

time accompanying an inspector on a "spot inspection", the majority of 

the Court in UMWA v. FMSHRC, supra, was of the opinion that Mr. Perkins' 

floor statement in the House of Representatives following the adoption 

of the Act by the House-Senate conferees was not entitled to decive 

weight in the interpretation of section 103(f). Mr. Perkins' comments, 

in pertinent part are as follows: 

* * * the intention of the conference committee 

is to assure that a representative of the miners 

shall be entitled to accompany the Federal 

.inspector, including pre- and post-inspection 

conferences, at no loss of pay only during the 

four regular inspections of each underground mine 

and two regular inspections of each surface mine 

in its entirety including pre- and post-inspection 

conferences. (Emphasis added). 

While it is true that Mr. Perkins' comments, as well as some of 

the other lgeislative history and court citations discussed above, 

deal with the kinds of inspections for which a union walkaround representative 

is entitled to be compensated, they are relevant in that they specifically 

refer to physical inspections of the mine. The express purpose of 

such an inspection is to insure that a mine operator is complying with 

the law, and if he is not, to insure that compliance is achieved through 

prompt corrective action by the inspector conducting the inspection. 

It is in this setting that I believe Congress intended for full participation 

rights by a miner representative so that he can make some meaningful 

contribution to protect the safety and health of his fellow miners. 

I conclude that the language of section 103(f) authorizing a 

representative of miners to participate in a post-inspection conference 

clearly contemplates his participation as part of the physical inspection 

of the mine made by the inspector with whom he travels during the inspection 

on any given day. Further, while the compensation language found in 

section 103(f) -- shall suffer no loss of pay during the period of his 

participation in the inspection -- does not specifically include the 

phrases "pre- and post-inspection conferences", I believe it is reasonable 

to conclude that Congress intended for compensation for the miner 

representative if he chooses to participate in the "conference" held 

at the mine by the inspector immediately or shortly after the completion 

of his physical inspection of the mine. 

The express purpose of the civil penalty regulations found in Part 100 

is to provide a regulatory framework for the application of the penalty 

criteria found in section llO(i) of the Act. The regul~tory procedures 

establishing a "point system" for the initial assessment of penalties 

are in reality in a system whereby the mine conditions found to be out 

of compliance by an inspector are reduced to "points", and then translated 

into a fixed dollar figure for each violation. In my view, I believe 

758 
that during the legislative process which resulted in the 1977 Amendments 

to the Coal Act, Congress never contemplated the scope and effect of the 

elaborate regulatory civil penalty procedures found in Part 100. Insofar 

as the rights of miner "walkaround" representatives are concerned, 

Congress granted them subject to regulations issued by the Secretary. 

As indicated earlier in this decision, contraty to MSHA's assertion at 

page 5 of its brief that its policy memorandum (exhibit R-5) mandates 

that the type of conferences be held at the mine site, I can find no 

such specific requirement in that memorandum. While there may be an 

inference that MSHA contemplated the mine site to be the locale of such 

a conference, neither Part 100, the Interpretative Bulletin, or the policy 

memorandum dated June 16, 1982, (exhibit R-4), contain any specific 

requirement that such assessment conferences be held at the mine site. 

At page 7 of its brief, MSHA asserts that "the mine site conference 

is an amplification of the prior close-out conference conducted after 

all inspections" and that they "expand on the close-out conference concept". 

While this is certainly true, in my view such "amplifications" and 

"expansions" must have some reasonable regulatory base, rather than on a 

somewhat arbitrary method of achieving "efficiencies" for the administrative 

convenience of MSHA. 

On the facts of the instant cases, it is clear that no physical 

inspection of the mine took place at the time the inspectors went to the 

mine site to sit down with management and union representatives to discuss 

the citations which had not been previously assessed, and which were 

the subject of the new Part 100 regulations. It seems clear to me that 

had those citations been assessed under the old Part 100 regulations 

by MSHA's district office, there would have been no need for any of the 

inspectors to go to the mine site in question, and any participation 

or input by the UMWA with regard to MSHA's assessments, would have been 

at its own expense and would not have been compensable, and MSHA and the 

UMWA concede that this is true. The thrust of MSHA's argument in these 

cases is that no "assessment process" took place at the mine on the days 

in question. 

The facts in this case establish that MSHA's new Part 100 civil penalty 

assessment regulations became effective on Friday, May 21, 1982. The 

following Monday, May 24, 1982, Inspector McNece went to the mine for 

the express purpose of giving the respondent an opportunity to avail 

itself of the new regulations. The 14 citations which were "conferenced" 

that day had not previously gone through MSHA's normal and routine assessment 

procedure, and under the newly promulgated Part 100 procedures, mine 

operator's were given the opportunity to avail themselves of the new 

procedures. MSHA's counsel conceded that this was in fact the case 

(Tr. 61). • 

Although MSHA's counsel conceded that Inspector McNece went to the 

mine on May 24, 1982, for the specific purpose of giving the respondent 

'an opportunity to take advantage of the newly promulgated Part 100 

760 
assessment procedures, he maintained that the "conference" which took 

place that day was not an "assessment conference" (Tr. 62). At the 

hearing, counsel argued that what Mr. McNece did was "something we didn't 

need to do, but that we did for their benefit and that it was perfectly 

consistent with the new process" (Tr. 63). Counsel argued that the 

"conference" conducted by Mr. McNece "would be a part of the inspection 

that had not been formalized as part of the inspection before" (Tr. 63). 

I conclude and find that MSHA's newly promulgated Part 100 Civil 

Penalty Assessment regulations are for the express purpose of facilitating 

an initial administrative determination for proposed assessment of 

civil penalties under Sections 105 and 110 of the Act. I further find 

and conclude that the regulatory language found in Section 100.6(a), 

affording "all parties the opportunity to review with MSHA each citation 

and order issued during an inspection" is part and parcel of MSHA's 

assessment procedures, and while MSHA has seen fit to administratively 

characterize it as a "conference" or "close out conference" in its policy 

memorandums for purposes of Part 100, on the facts of these proceedings, 

I conclude and find the so-called "conferences" held by the inspector's 

in these cases were in fact assessment conferences incident to MSHA's 

civil penalty assessment authority under sections 105 and 110 of the Act. 

With regard to MSHA's policy memorandums, aside from the fact that 

they are not binding regulations promulgated through statutory rule-making, 

they are simply attempts to administratively clarify the rights of the 

parties with respect to the review of citations and orders for purposes 

of civil penalty assessment determinations under Part 100, as distinguished 

from any statutory rights afforded miners participation in the actual 

·physical inspection of a mine under section 103(f). Further, I can find 

nothing in those policy memorandums to support MSHA's attempts to expand 

or amplify anything other than the rights of the parties under section 

100.6 to review citations and orders for purposes of civil penalty 

assessments. The memorandums are totally devoid of any information 

concerning the compensation rights of miners for their review participation, 

either on or off mine property. 

With regard to the Secretary's Interpretative Bulletin, it simply 

establishes and refines the statutory right given miners pursuant to 

section 103(f) to accompany an inspector during his physical inspection 

of the mine at no loss of pay for the time spent on the inspection, and 

it is totally devoid of any references to the type of participation 

incident to the review of citations and orders found in section 100.6. 

While it is true that the Bulletin states that it is not intended to 

address every conceivable issue or factual situation that could arise 

in connection with section 103(f), it is absolutely si~ent on any of 

the issues raised in these proceedings. As a matter of fact, the only 

mention of "pre- or post-inspection conference" participation rights by 

a representative of miners is in the introductory statement, and it is 

limited to a citation to the language found in section 103(f). I REJECT 

MSHA's assertion that the principles included in this Bulletin support 

its position in this case that the "conferences" which took place in 

the cases at hand are covered by the statutory language of section 103(f). 

761 
After careful consideration of the arguments presented by the 

parties in these proceedings, I conclude that SOCCO's arguments with 

regard to the statutory differentiation between the Secretary's authority 

to conduct mine inspections and to assess civil penalties for violations 

which flow from those inspections are valid, and I reject the a~sertions 

advanced by MSHA and the UMWA to the contrary. I conclude further that 

the authority for the Secretary's promulgation of the Part 100 assessment 

regulations comes from his enforcement and assessment authority found in 

sections 105 and 110 of the Act, and not from section 103. Although the 

statutory and regulatory scheme for enforcement of the Act gives a 

representative of miners a right to participate in the Secretary's 

enforcement efforts, those rights must be based on some valid statutory 

or regulatory authority. In my view, the right of a representative of 

miners to participate in the kinds of mine inspections contemplated by 

section 103 of the Act by accompanying the inspector during his on-site 

mine inspection comes directly from section 103. Conversely, the right 

of a representative of miners to participate in the review of citations 

and orders for assessment purposes flows from Part 100, the regulatory 

implementation of the authority of the Secretary to assess civil penalties 

under sections 105 and 110, well after the mine inspection, and the fact 

that MSHA has administratively decided that these reviews are to be held 

at the mine site for administrative convenience does not cure the statutory 

distinctions addressed by SOCCO. 

The post-inspection conference held by an inspector immediately 

after his inspection rounds afford all parties an opportunity to address 

safety and health concerns resulting from that inspection, and they are 

important in that with all parties present when the facts and circumstances 

are fresh at hand, they can explore ways to correct the conditions and 

to achieve innnediate, or reasonably immediate, abatement and compliance. 

On the other hand, the types of reviews which took place in these cases, 

well after the fact of violation and abatement, and with different 

personalities participating, accomplished nothing more than affording 

the operator an opportunity to avail himself of the new Part 100 assessment 

procedures, and in particular, it afforded the mine operator an opportunity 

to review MSHA's newly promulgated assessment guidelines for differentiating 

between a "significant and substantial" violation, as opposed to one 

which is not. 

On the facts presented in these proceedings, I conclude and find 

that the participation by the miner representatives at the meetings or 

"conferences" which gave rise to the citations which were issued in these 

cases was participation incident to the civil penalty assessment process 

being conducted at that time by MSHA under section 100.6(a). This citationreview-participation by the miner representatives in question was clearly 

limited to, and an integral part of, the regulatory civil penalty assessment 

process encompassed by Part 100 of the Secretary's regulations. In these 

circumstances, I find no regulatory authority requiring the mine operator to 

pay or otherwise to compensate the miner representatives who participated 

762 
in this review process. Therefore, I conclude that the mine operator 

was under no obligation to pay those representatives for the time spent 

during this review. 

In view of my prior findings and conclusions concerning the 

distinctions to be made in the section 103(f) "post-inspection conferences" 

incident to mine inspections conducted pursuant to section 103(a), and the 

types of "conferences" which took place in these proceedings pursuant 

to Part 100. I further find and conclude that any statutory compensation 

rights afforded a representative of miners by section 103(f) for his 

participation in mine inspections as defined and limited by section 103(a) 

do not apply to the Part 100 review "conferences" in question, and that 

those so-called "conferences" were not the type of compensable "postinspection conferences" contemplated by section 103(f). Accordingly, I 

cannot conclude that the mine operator in these proceedings had any duty 

under section 103(f) to compensate them for their participation. 

Conclusion and Order 

In view of the foregoing findings and conclusions, I conclude 

that the contestant has not violated the provisions of section 103(f), 

and Citation No. 1225640, 1225641, and 1225867 ARE VACATED, and the 

contests ARE GRANTED. 

~7-Kn(i~ Administrative Law Judge 

Distribution: 

D. Michael Miller, Daniel L. Brown, Esqs., Alexander, Ebinger, Fisher, 

McAlister & Lawrence, 17 South High St., Columbus, OH 43215 (Certified 

Mail) 

Edward Fitch, Esq., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Mary Lu Jordan, Esq., UMWA, 900 15th St., NW, Washington, DC 20005 

(Certified Mail) 

763 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 APR 20 91 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BLACK DIAMOND COAL MINING CO., 

Respondent 

Docket No. SE 82-48 

A.O. No. 01-00722-03034 V 

Shannon Mine 

DECISION 

Appearances: George D. Palmer, Associate Regional Solicitor, U.S. 

Department of Labor, Birmingham, Alabama, for the petitioner; 

Barry V. Frederick and Harry L. Hopkins, Esquires, Birmingham, 

Alabama, for the respondent. 

Before: Judge Koutras 

Statement of the Proceeding 

This proceeding concerns a proposal for assessment of civil penalties 

filed by the petitioner against the respondent pursuant to section llO(a) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(a), 

charging the respondent with two alleged violations issued pursuant to 

the Act and the implementing mandatory safety and health standards. 

Respondent filed a timely answer in the proceedings and a hearing regarding 

the proposal was held on February 1, 1983, in Birmingham, Alabama, and 

the parties appeared and participated therein. The parties waived the 

filing of post-hearing arguments, were afforded the opportunity to make 

arguments on the recor4 and those arguments have been considered by me 

in the course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977,~P.L. 95-164, 

30 u.s.c. § 801 et ~· 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 CFR 2700.1 et~· 

764 
Issues 

The principal issues presented in these proceedings are (1) whether 

respondent has violated the provisions of the Act and implementing 

regulations as alleged in the proposals for assessment of civil penalties 

filed, and, if so, (2) the appropriate civil penalties that should be 

assessed against the respondent for the alleged violations based upon the 

criteria set forth in section llO(i) of the Act. 

In determining the amount of a civil penalty assessment, section llO(i) 

of the Act requires consideration of the following criteria: (1) the 

operator's history of previous violations, (2) the appropriateness of 

such penalty to the size of the business of the operator, (3) whether the 

operator was negligent, (4) the effect on the operator's ability to 

continue in business, (5) the gravity of the violation, and (6) the 

demonstrated good faith of the operator in attempting to achieve rapid 

compliance after notification of the violation. 

Additional issues raised by the parties in the course of these 

proceedings are identified and disposted of in the course of my findings, 

conclusions, and rulings made in 

Discussion 

The citations in question in this proceeding were issued by MSHA 

Inspector Milton Zimmerman during the course of inspections at the mine 

on November 12 and 16, 1981. Both citations (withdrawal orders) were 

issued pursuant to section 104(d)(l) of the Act, and in both cases 

Mr. Zimmerman made findings that the conditions or practices cited as 

alleged violations were "significant and substantial". Mr. Zimmerman 

articulated these "S & S" findings by marking the appropriate "block" 

on the face of the citation forms which he served on the respondent at 

the conclusion of his inspections. Citation No. 0758739, issued on 

November 12, 1981, cites a violation of 30 CFR 75.400, and the alleged 

violative conditions or practices are described as follows: 

Loose coal was allowed to accumulate under and along 

the 1st South Belt line for a distance of more than 

400 feet. The accumulation was 1 foot to 4 feet 7 

inches deep and 4 feet to 10 feet wide where the belt 

crossed the track. The accumulation of float dust 

and coal dust was 10 inches deep and 20 feet wide 

for 80 feet. The accumulation was up to the return 

belt and idler rollers for the distance of the•belt. 

This belt is inspected by the foreman on two shifts 

each day. 

Citation No. 0758127, November 16, 1981, cites a violation of 30 

CFR 75.200, and the alleged violative conditions or practices are described 

as follows: 

765 
On the 1st South Section the crosscut between the 

No. 1 left and 2 left entry was 28 feet wide and an 

area of roof 8 feet wide and 14 feet long was unsupported. The face of the No. 2 left had been advanced 

15 feet deep. The mouth of the No. 2 left face was 

22 feet wide for a distance of 25 feet. Two posts 

had been knocked and were not replaced. The entire 

crew has been traveling through this area for more 

than a week. 

This is in violation of the approved roof control 

plan. The crosscut between No. 1 and 2 entry was to 

be only 20 feet wide. The room entry is to be a maximum 

of 20 feet. 

Both citations in issue in this case are "unwarrantable failure" 

withdrawal orders issued by Inspector Zimmerman pursuant to section 104(d)(l) 

of the Act. The instant civil penalty case did not arise from a direct 

challenge or notices of contests filed by the respondent concerning the 

validity of the two section 104(d)(l) orders of withdrawal which are the 

subject of petitioner's civil penalty proposals. Although respondent 

had a right to file timely challenges contesting the validity of the orders 

pursuant to the statutory scheme of enforcement concerning the "unwarrantable 

failure chain", it did not do so. Section 105(d) of the Act allows a 

challenge to such orders, but only if the contest is filed within 30-days 

of the receipt of the order. On the facts of this case, one of the orders 

was served on the respondent by Inspector Zimmerman on November 12, 1981, 

and the other was served on November 16, 1981, and there is no evidence 

that the respondent filed its notice of contest challenging those orders 

within the 30-day period required by section 105(d). Respondent's "contest" 

came on when it was served with a copy of MSHA's proposed civil penalty 

"special assessments" for the violations detailed in the orders, and this 

was apparently done on June 1, 1982, when the respondent advised MSHA 

that it wished to contest three of the five citations which were the subject 

of the proposed assessments. 

At the beginning of the hearing held in this case, the parties began 

discussing certain proposed stipulations and agreements, including certain 

references to the "underlying section 104(d)(l) citation", whether there 

was an "unwarrantable failure" to comply, and whether the citations were 

"significant and substantial". Since it was obvious to me that the respondent 

may have believed that the parameters of the hearing would include issues 

touching on the validity of the unwarrantable failure findings made by 

the inspector, as well as his "significant and substantial" findings, the 

parties were afforded an opportunity to be heard on thes~ preliminary 

matters. During the course of these discussions on the record, counsel 

for the parties expressed agreement with my ruling that the parameters 

of the instant civil penalty case would not include questions concerning 

the validity of the orders (Tr. 15, 17-18, 22, 23). To the extent that 

respondent's counsel may still be under the impression that he would be 

permitted to go into the question of the validity of the section 104(d)(l) 

766 
citations in this civil penalty proceeding, my ruling that his failure 

to contest these issues within the time frames permitted by the Act and 

the Commission's rules is hereby reaffirmed, and any exceptions taken 

to this ruling by the respondent is preserved for any appeal rights he 

may wish to exercise on this issue. 

The petitioner's proposal for assessment of civil penalties filed 

in this matter was docketed with the Commission on July 6, 1982. Included 

with this initial pleading were certain documents labeled "Exhibit A", 

which purportedly listed the alleged violations which were contested by 

the respondent and which formed the basis for the petitioners civil penalty 

proposals. One of the documents listed citations 0758739, 11/19/82, 

75.400, showing a penalty assessment of $750, and citation 0758127, 

11/16/82, 75.200, with an assessment of $500 indicated. A second 

document is an MSHA "Proposed assessment" form listing five citations, 

including 0758739 and 9758127, for which civil penalties totalling $2500 

were assessed. Also included as attachments are copies of the two 

citations/orders, 0758739 and 0758127, and copies of miscellaneous 

correspondence. 

The certificate of service attached to the petitioner's penalty 

proposals were served by certified mail on the respondent's President, 

C. B. Blair, on July 1, 1982. By letter dated July 29, 1982, and docketed 

with the Commission on August 2, 1982, respondent's counsel filed an 

answer to the petitioner's civil penalty proposals, and the answer states 

in pertinent part as follows: 

The proposed assessment is an error as a matter of 

fact, no violation occurred, and the proposed fine 

did not follow the statutory guideline for assessment. 

In view of the contradictory information contained in the petitioner's 

civil penalty proposal, I issued an Order on August 12, 1982, directing 

the petitioner to clarify its proposal. Petitioner responded and asserted 

that the respondent contested only citations 0758127 and 0758739. However, 

petitioner submitted a copy of MSHA's "Narrative findings" covering five 

citations and these included one section 104(d)(l) citation and four section 

104(d)(l) orders. 

On September 3, 1982, respondent filed an amendment to its answer 

and requested a hearing on MSHA's civil penalty proposals. At no time 

has the respondent's answers indicated any request for a review of the 

inspector's unwarrantable failure findings, his "S&S" find1ngs, or the 

legality of the withdrawal orders, including the section 104(d)(l). 

"unwarrantable chain". 

At the hearing, petitioner's counsel asserted that he had no information that the respondent ever filed a notice of contest pursuant to 

section 105 of the Act challenging the inspector's "unwarrantable failure" 

findings, his "significant and substantial" findings, or the inspector's 

actions in issuing the withdrawal orders. Further, petitioner's counsel 
asserted that he had no information that the respondent ever challenged 

or otherwise sought to contest the underlying section 104(d)(l) citation 

No. 0758737, issued by the inspector on November 12, 1981, and that the 

respondent paid the civil penalty assessment in that case. This citation 

concerned another coal accumulations violation of section 75.400, and 

respondent's witness Paul Province confirmed that the respondent paid 

that citation because it could not rebut the inspector's findings 

concerning the existence of float coal dust in the area cited by him 

in that citation. In short, the respondent apparently paid the civil 

penalty assessed for that citation after making a judgment that the 

citation could not successfully be defended at a hearing. 

The respondent did not dispute the fact that at the two locations 

described by the inspector on the face of the citation in the instant 

case that the width of one entry at a crosscut was 28 feet, and the mouth 

of the face area at the second location was 22 feet wide. Further, the 

respondent did not dispute the fact that at those two locations the roof 

was unsupported. The first area of unsupported roof was at the location 

of the 28 foot wide entry, and the inspector observed a roof area 8 feet 

wide and 14 feet long which was not roof-bolted or otherwise supported. 

The second location of unsupported roof was at the location where the 

mouth of the face was 22 feet wide and the inspector observed two posts 

which had been dislodged and not vertically in place where they were 

supposed to be. 

MSHA's testimony and evidence - Citation No. 0758739, 30 CFR 75.400 

MSHA Inspector Milton Zimmerman confirmed that he conducted an 

inspection at the mine on November 12, 1981, and issued the citation for 

coal assumulations. He described the conditions which he ob$erved, and 

he believed that the conditions had accumulated over four or five production 

shifts prior to the time and date of his inspection. He confirmed that 

the mine superintendent advised him he was working "shorthanded" and had 

no personnel available to clean up the cited coal accumulations (Tr. 24-29; 45). 

On cross-examination, Mr. Zimmerman confirmed that company representative 

Paul Province was with him during his inspection, and he testified as to 

the depth and extent of the accumulations which he cited, and confirmed 

that at some locations rock was under the coal, but at other locations, 

such as the area inby the track and the tail piece, the accumulations 

were coal. He described the accumulations as "damp", and confirmed that at 

"the area around the piles" there was an accumulation of water (Tr. 32). 

In response to a question as to whether he walked the entire 400 feet 

of belt as described in his citation, he answered that "}:. did walk the 

belt line", and he was sure that Mr. Province was with him when he did 

this (Tr. 33). He believed the entire length of the belt line was more 

than 400 feet, and he confirmed that the accumulations he described in the 

citation extended the entire 400 feet in question (Tr. 34). 

Mr. Zimmerman confirmed that he cited an "S&S" violation, but indicated 

that under MSHA's "new instructions" for "significant and substantial" 

768 
he would not now consider the accumulations to be "S&S" (Tr. 34). 

He saw no evidence of anyone working on the belt line at the time he issued 

the citation, and he believed that the coal accumulations were combustible 

(Tr. 35). He confirmed that the belt line was equipped with fire sensors 

and alarms, but his concern was over the fact that had the accumulations 

been allowed to remain there was "a chance of combustion". However, he 

saw no evidence of any frozen or overheated belt rollers or motors (Tr. 36). 

Referring to a sketch of the scene (exhibit P-1), Mr. Zimmerman 

described the areas where he believed the coal accumulations in question 

existed at the time the citation was issued (Tr. 37-41). He confirmed 

that the section was in production when he was there, and that the belt 

was in operation (Tr. 44). He checked the preshift examination books, 

and found no notations reflecting the presence of any coal accumulations. 

Abatement was achieved by cleaning up the accumulations and rock dusting 

the affected area (Tr. 46). The accumulations were shoveled onto the 

belt and taken away, and he confirmed that he determined the depths of 

the accumulations by measuring them with a ·tape (Tr. 27). He was satisfied 

that the operator addressed the problem immediately by beginning clean-up 

(Tr. 48). 

Respondent's testimony and evidence 

Paul Province, underground foreman, confirmed that he accompanied 

Inspector Zimmerman during his inspection on November 12, 1981, and while 

he indicated that the belt distance which was cited was 400 feet, he 

confirmed that he only accompanied the inspector for 150 feet of the belt 

line. He confirmed that the total distance of belt line which he actually 

walked and could visually observe was approximately 220 feet (Tr. 53). 

While he was aware that Mr. Zimmerman wrote up tne entire 400 feet of belt 

line for coal accumulations, he stated that Mr. Zimmerman told him "if 

this part of it looks like this, I know the rest of it needs to be cleaued 

up" (Tr. 53). 

Mr. Province stated that most of the cited materials under the belt 

line was either rock, or fire clay, or coal mixed in with this material. 

He described the materials under the belt idlers as "muck", and indicated 

that the fire clay from the coal seam was mixed in with this material. He 

confirmed that when he grabbed a handful of the material and squeezed 

it through his fingers "it will run out to the side of your fingers. 

That's how wet it was" (Tr. 54). He confirmed that union representative 

Robert Perry was with him when he picked up this material to test it 

(Tr. 54). Mr. Province described the remaining material along the belt 

line as 80% rock, that it was wet to the consistency of mud, and he 

confirmed that one man was assigned at the start of the shift to clean 

up the accumulated materials (Tr. 56). 

Mr. Province described exhib~t R-1 as a weekly map of the section 

which was cited, and he described the amount of rock which was present 

in the coal seam which was being mined at the time of the inspection 
(Tr. 55-69). When asked whether he disputed the fact that accumulations 

of coal were present on the cited belt line, he responded "enough to 

cause a problem, yes, sir, I dispute that" (Tr. 69). Although he 

insisted that 80% of the accumulations was rock, he conceded that the 

remaining 20% was coal (Tr. 70). However, he also believed that the 

violation was improper because that 20% of coal was wet and mixed with 

fire clay, and therefore would not burn (Tr. 70). Mr. Province stated 

that he discus?ed this with the inspector, and that the inspector observed 

a man shoveling the rock and muck material onto the belt (Tr. 71). 

Mr. Province conceded that it was possible that Inspector Zimmerman 

walked the belt alone beyond the 150 feet after he left him to inform / 

the section foreman to shut the section down (Tr. 72-73). He conceded// 

that he went to the area beyond the 150 feet location, and that he 

observed a "sma:!_l accumulation'! but that it was wet (Tr. 73). Mp: Province 

confirmed that he was not in the area when the citation was abated and 

terminated (Tr. 74). He also confirmed that he did observe float coal 

dust and coal dust in the middle of the track where the belt crossed the 

track, and he conceded that Inspector Zimmerman was correct when he cited 

these accumulations. In response to bench questions concerning the 

conditions cited by Inspector Zimmerman, Mr. Province testified as 

follows (Tr. 77-79): 

JUDGE KOUTRAS: I want you to tell me, does 

the Inspector not cite, as part of the conditions 

here, the fact that he thought he saw some float 

coal dust? 

THE WITNESS: Yes, sir. He says, "Float dust, 

and coal dust". 

JUDGE KOUTRAS: Okay. Did you see any float dust, 

or coal dust? 

THE WITNESS: Yeah, of that minute quantity that 

you're talking about, around the belt structure. 

JUDGE KOUTRAS: Did you see any float coal dust, 

at all, that day that he issued the Citation? 

THE WITNESS: Yes, sir. I saw some float coal 

dust, yes, sir. 

JUDGE KOUTRAS: Okay. Did you see coal dust? 

THE WITNESS: A small amount in the track, y~s, 

sir. In the middle of the track, where the belt 

crosses the track. 

JUDGE KOUTRAS: So, you saw some coal dust, and 

you also saw some float coal. So, he's not wrong 

on that, is he? 

770 
THE WITNESS: No. No, sir, on that part of it 

he is not wrong. 

JUDGE KOUTRAS: But you are quibbling over the 

extensiveness of the cite? 

THE WITNESS: Yes. 

* * * * * * * * * * 

JUDGE KOUTRAS: • So, your testimony is, 

regardless of whether it was rock or coal, you 

saw some accumulations, you saw some float 

coal dust, and you saw some coal dust accumulated 

along this belt line. 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: And your contention is that the 

coal that you saw was incombustible, because you 

squeezed it, and water came out of it, okay? Is 

that right, so far? 

THE WITNESS: Essentially, yes, sir. 

Robert Towry, respondent's Director of Safety and Plant Engineering, 

testified that he went to the First South Belt section of the mine on 

the morning of November 12, and for the first 100 to 150 feet he observed 

"a pretty good pile of slabby rock" (Tr. 87). He also observed "a lot 

of wet coal, and the pyramiding effect behind the belt wiper". He 

estimated that 75 to 80% of the accumulated material was rock and that 

the rest was wet fire clay, and he determined that it was wet by touching 

it at two or three places, and he sampled the material (Tr. 88). He 

stated that the coal being mined was a coking coal rather than a steam 

coal, and that "its not very easy to set it on fire" (Tr. 89). 

As for the extent of the accumulations which he observed, he stated as 

follows (Tr. 90-91): 

Q. Okay. Now, the portion that Paul says 

the Inspector did not walk, what was there? 

A. There was no accumulation, anything like 

what was in, say, from the track to just in by 

the overcast, or say, 150 to 200 feet. It • 

more or less petered out, and there was -- I've 

never seen a coal mine where it was completely 

clean, but it was a wet area under that belt, and 

just a minimal amount of accumulation of any kind. 

Some rock, and some coal. 

771 
Q. All right. I will just ask you a couple of 

general questions. Why did you decide to contest 

this Citation, or this Order? 

A. We considered that there were certain things 

in the -- (pause) 

Q. Did you feel there was a violation? 

A. No, no, because we considered that the vast 

majority of this material was incombustible, to 

start with -- in other words, rock. And then 

that which could be argued to be combustible 

in other words, coal -- was too wet to have, you 

know, burned. It was just sopping wet. 

Q. Did the description in the Citation, have any 

effect on your decision? 

A. Yes. That and the Inspector's back-up sheet, 

and also the narrative which accompanied the 

original assessment, which, by the way, was $1,000 

and not the either $750, or $500, that was mentioned 

earlier. Yes, it would be what we considered 

inaccuracies on these documents that we really wanted 

to contest, you know, rather than the fine. 

Mr. Towry confirmed that the mine does not liberate methane, and he 

confirmed that he was not with the inspector when he issued the citation, 

but that he did go to the area approximately 45 minutes later and the 

conditions had changed since clean-up had begun (Tr. 96-97). 

David Hatter, section foreman, testified that he was involved in 

the clean-up and rock dusting of the cited belt in question, and he 

described the material as "mostly mud" and "wet" (Tr. 100). He confirmed 

that his clean-up was limited to a 70-foot area at the cross-cut, and 

stated that the material was shoveled onto the belt (Tr. 101-102). He 

confirmed that the day shift had already cleaned up the other belt area, 

and that his clean-up was confined to the crosscut, and that his crew 

began rock-dusting the whole belt line while waiting for the inspector 

to come back "to get the belt okayed" (Tr. 103). 

Inspector Zimmerman was recalled by the petitioner, and he stated 

that the accumulations in question could have been 30 to 50% rock, but 

that there was a substantial amount of coal accumulations (Tr. 105). 

most of the rock which he observed was located from the track inby 

towards the discharge point where rock had been shot out to install 

the belts. He also confirmed that had all of the accumulations been rock, 

he would not have issued the citation (Tr. 106). No samples were taken 

because he is not required to take samples to substantiate an accumulations 

772 
citation. In the instant case, the accumulations looked like coal 

to him and coal is combustible. Although the law makes a distinction 

between anthracite and bituminous coal, MSHA does not distinguish between 

coking coal and steam coal (Tr. 107). 

Mr. Zimmerman conceded that it was possible that he did not walk 

the entire 400 feet of belt line, and after issuing the citation he later 

modified it to permit production to continue so that the belt would not 

be stopped at the transfer point (Tr. 109). He did this after determining 

that a substantial amount of the accumulations had been cleaned up the 

same evening that he iseued the citation, and he terminated the citation 

four days later after returning to the mine. He confirmed that the 

accumulations were consistent along the entire area he cited, and even 

if the accumulations were half coal and half rock, there would still 

be a violation (Tr. 112). 

Mr. Zimmerman could not recall seeing anyone in the process of 

cleaning the area at the time of his inspection, and he indicated that 

had he seen clean up going on he would not have issued the citation 

(Tr. 115). He confirmed that some of the muck was wet and not combustible, 

but it was still an accumulation which had to be cleaned up (Tr. 116). 

MSHA's testimony and evidence - Citation No. 0758127, 30 CFR 75.200 

Inspector Zimmerman confirmed that he issued the citation in 

question during an inspection conducted on November 16, 1981, and he 

described . the areas where he found wide places and unsupported roof 

(Tr. 148-150). He confirmed that the roof control plan, exhibit P-2, 

provided for maximum widths of only 20 feet at crosscuts and entries 

(Tr. 151). He indicated that the problems could have been taken care of 

by installing timbers to narrow the areas down to the 20-foot width 

requirements, and he could remember no roof bolt machine being in place 

at the cited locations, but that one could have been "within a couple 

of crosscuts of the area" (Tr. 154). He was certain that people were 

working in the areas and that mining was taking place (Tr. 155). 

Mr. Zimmerman testified that there was a danger of a roof fall in 

the cited areas and that "a couple of rock falls were noted close to 

this area, on the mine map" (Tr. 155). He confirmed that he observed 

two posts lying near the mouth of the entryway which was cited, and that 

the roof control plan requires that any posts knocked down be reinstalled 

(Tr. 156). 

On cross-examination, Mr. Zimmerman confirmed that he probably was 

at the area cited during his previous inspection of November 12, and had 

he noticed the wide places at that time he would have cited them. He 

confirmed that he had no way of knowing when the conditions first occurred, 

but conceded that someone may have told him that they had occurred at 

the end of the night shift before his inspection (Tr. 159). He believed 

the two timbers must have been in place on the 12th or he would have 

cited them, confirmed that rib rolls were not unusual in the mine, 

and he conceded that after pointing out the conditions to the respondent, 

someone may have mentioned the fact that a roof bolting machine was on its 

way to bolt the roof (Tr. 160). 

773 
Respondent's testimony and evidence 

·Paul Province testified that he did not take issue with the 

inspector's description of the wide areas, the unsupported roof area, 

or the fact that two posts had been knocked down (Tr. 170). He stated 

that a rib roll occurred at the end of the previous evening shift 

prior to the inspector's arrival on the section, and that prior to this 

time the crosscut widths were in conformance with the roof control plan 

(Tr. 171). He also indicated that prior to the rib roll, there were 

no areas of unsupported roof, and any such areas which had not been 

cleaned up could not be considered unsupported until they were in fact 

cleaned up (Tr. 174). He testified that the day shift cleaned up the roll, 

but since there were two to three shuttle cars of materials, and no one 

could walk through the area, clean up couldn't start until about 8:30 a.m. 

(Tr. 176). 

Mr. Province stated that after learning of the violations the bolting 

crew was taken from the One-Left section and moved to the cited area to 

bolt the roof, and the crew had advised him that the area would have bolted 

"on cycle". At the time he was made aware of the violation, the bolting 

crew was located about 50 feet away, but a line curtain may have 

obstructed the inspector's view of the crew (Tr. 181). According to 

the bolting crew, they intended to roof bolt the unsupported roof area. 

even before he was made aware of the violation (Tr. 181). 

On cross-examination, Mr. Province discussed the mining cycle as 

it progressed at the time the violation was cited by Inspector Zirmnerman, 

and he conceded that the roof conditions were "not the best nor the worst" 

(Tr. 186). He conceded that he was not present at the time of the rib 

roll to see how much of the rib had fallen off (Tr. 189-190). He confirmed 

that the inspector measured the wide places as reflected on the face of 

his citation, and that he measured from one rib to the point on the other 

rib where the roll had occurred, and that it in fact measured 28 feet 

wide (Tr. 195-197). He confirmed that this distance was eight feet wider 

than permitted under the roof control plan (Tr. 197). 

Mr. Province conceded that the other wide place cited, namely the 

22 foot area, was also present, and he indicated that the same rib roll 

also affected that wide area (Tr. 206). He stated that the two timbers 

cited were installed to take care of the wide area, but that they must 

have been knocked down by the rib roll or while clean-up was taking 

place. He conceded that the initial 22-foot wide area was apparently 

created by driving the entry too wide (Tr. 207). He did not dispute 

the inspector's finding that the two timbers were lying down and not in 

place (Tr. 208). 

David Hatter, testified that he was the section foreman on the 

evening shift when the rib roll occurred on November 15, 1981, and he 

confirmed that it occurred at approximately 10:40 p.m. He stated that 

774 
he had no time to clean it up because it would have necessitated 

keeping men over on overtime. He told the fire boss about the 

condition, and indicated that no one could walk under the unsupported 

roof where the rib had rolled because the coal was five feet deep 

where it had rolled off the rib and no one could walk around the 

area (Tr. 221). To his knowledge, no one walked under the unsupported 

roof as the crew left the section (Tr. 222). Prior to the rib roll, 

the roof was not unsupported (Tr. 223). 

Inspector Zimmerman was recalled, and testified as follows concerning the rib roll (Tr. 231-235): 

Q. You have heard the testimony of Respondent's 

witnesses here with regard to the prior knowledge 

of this condition. Is there anything you can tell 

me about this? Elaborate on it? Did you have any 

conversation with anybody from management? Did 

they explain to you that they were aware of the fact 

that they had had a rib roll, that they had cleaned 

the rib roll up, and that they were waiting for the 

normal roof bolt cycle to come in that area to take 

care of the unsupported ~oof, at the 28 foot distance 

that you had noted on the iace of your Citation? 

A. Something like that might have been said. I 

can't be positive. 

Q. What do you mean, it might have been said? I 

mean, do your notes reflect that? 

A. No, my notes don't reflect it. That was in 1981, 

and we might have discussed the fact that maybe it 

was possible that a rib had rolled off, and causing 

the place to be wide --

Q. What does your narrative statement -- Did you 

fill out a narrative statement on this Citation. 

A. I'm sure I did. 

Q. An Inspector's statement? 

A. I'm sure I did. 

Q. Do you have that available? 

A. Whatever was discussed at the time of the 

violation, wasn't sufficient for me not to write it. 

Q. Well, but that's not, you know --

775 
MR. PALMER: Your Honor, here's a copy of that 

JUDGE KOUTRAS: Let me see that for a minute. 

MR. PALMER: Okay. 

JUDGE KOUTRAS: Let the record show that I have asked 

for the statement, and Mr. Palmer has produced it for 

me. 

BY JUDGE KOUTRAS: (Resuming) 

Q. Would you look at that statement, again? Is that 

the narrative statement that you filled out with 

respect to this violation. 

A. (Witness examines document.) Yes, sir. 

Q. Okay. 

JUDGE KOUTRAS: Have you had an opportunity to see this, 

Mr. Frederick? 

MR. FREDERICK: Yes. 

BY JUDGE KOUTRAS: (Resuming) 

Q. Your remarks on this, and let me just quote them here: 

"This crosscut had been mined several weeks ago, and 

appeared to have been left too wide. The section had 

been -- has been back in this area for approximately 

two weeks, and have been travelling this area daily. 

This area is preshifted three times a day, and the onshift is made by the foreman twice daily, this condition 

being examined five times daily " and I can't 

make out the rest of that. 

The gist of this is -- Do you now recall any conversation with anybody in mine management, about their 

explaining to you the circumstances under which this 

area was left unsupported. 

A. Yeah. Well, I recall it, but it had to be more than 

20 feet wide already, because of where the rib roll was. 

It had to be more than 20 feet wide, for it to be 28 feet 

wide, because the bolts were approximately five feet from the 

rib already, and it was only eight feet from the bolt 

to the rib, so it had to be at least 25 feet wide already. 

Before the rib roll even. 

776 
Q. What if mine management had told you at that 

point in time, that they were aware of the rib roll, 

that they knew that the entry was wide, but someone 

was going to get on it right away, and they are on 

their way, but you just beat them to the punch. 

What if they had told you that, and you specifically 

remembered that? What action would you have taken? 

Would you have done anything different? 

A. By virtue of the fact that they all had gone into 

the section, and travelled through that area, I 

would have given them a Citation, because they should 

have corrected it, prior to them going through. 

Q. I believe you testified earlier that if you had 

noticed a violation previous to that date, you would 

have written them up on the width violation. 

A. I sure would have. Had I measured it and found 

it to be wide, I would have. Definitely. 

Q. And I believe you testified initially on this 

violation, that you did not know when the width 

violation first occurred. 

Is that your testimony in the record? 

A. I didn't know. I didn't know. I don't know when it 

first occurred. 

Findings and Conclusions 

Fact of Violation - Citation No. 0758739, 11/12/81, 30 CFR 75.400 

Respondent is charged with a violation of mandatory safety standard 

section 75.400, which provides as follows: 

Coal dust, including float coal dust deposited 

on rock-dusted surfaces, loose coal, and other 

combustible materials, shall be cleaned up 

and not be permitted to accumulate in active 

workings, or on electric equipment therein. 

Respondent's defense to the accumulations citatio~ is based on 

Mr. Province's testimony that what he saw was primarily an accumulation 

of rock and wet muck which he believed to be incombustible. However, 

Mr. Province only walked 150 feet of the belt line, and he confirmed 

the presence of float coal dust and coal dust in the middle of the track 

and on the belt structure itself. He conceded that Inspector Zinnnerman 

was correct in the citation of these conditions and he confirmed that he 

was not present when the conditions were abated. 

77'7 
During the hearing, respondent's counsel asserted that Mr. Zimmerman's 

narrative description of the alleged accumulations which he cited are 

"blantently wrong" (Tr. 123). Counsel also raised an issue concerning 

the alleged failure of Mr. Zimmerman to provide mine management with 

an opportunity to accompany him on the inspection beyond the 150 feet 

point after Mr. Province left his company (Tr. 123). Counsel argued 

that if Mr. Zimmerman advised Mr. Province that he did not need to walk 

the remaining 250 feet of belt line, one can assume that he did not. If 

he did, then counsel maintained that he did so with no one from mine 

management present (Tr. 123). 

Mr. Zimmerman testified that at the beginning of the inspection, 

mine management was advised of his presence and Mr. Province and union 

walkaround representative Perry accompanied him on the inspection 

(Tr. 126). Mr. Zimmerman confirmed that at the time he advised Mr. Province 

that he was going to issue an accumulations citation Mr. Province left 

the area to make a telephone call "to get some people down to start cleaning 

on it". At that point in time, Mr. Zimmerman conceded that he had not 

walked the entire 400 feet of belt line and that he had only reached 

"at least three crosscuts of it" (Tr. 127). He then indicated that he walked 

the remainder of the belt line and was sure that the walkaround man was 

with him, but he was not sure about Mr. Province being present. In any 

event, no one objected, and management's concern was that he was citing 

an unwarrantable failure violation (Tr. 128). 

In Old Ben Coal Company, 1 FMSHRC 1954, 1 BNA MSHC 2241, 1979 CCR 

OSHD 24,084 (1979), the Commission held that "the language of the standard, 

its legislative history, and the general purpose of the Act all point 

to a holding that the standard is violated when an accumulation of combustible 

materials exist, "l FMSHRC at 1956. At page 1957 of that decision, 

the Commission also stated that section 75.400 is "directed at preventing 

accumulations in the first instance, not at cleaning up the materials 

within a reasonable period of time after they have accumulated." See also: 

MSHA v. C.C.C. Pompey Coal Company, Inc., 2 FMSHRC 1195 (1980), and 2 

FMSHRC 2512 (1980). 

Turning to the evidence and testimony adduced in this case, I conclude 

and find that the preponderance of the evidence establishes the existence 

of accumulations of combustible loose coal, coal dust, and float coal 

dust as cited by the inspector in this case. Respondent does not dispute 

the inspector's findings concerning the existence of float coal and coal 

dust as cited in his citation. Even if I were to accept the respondent's 

assertion that most of the cited accumulations of loose coal was rock and 

muck, the fact is that the petitioner has established by credible evidence 

the existence of accululations of coal dust and float ~oal dust which 

had not been cleaned up at the time the inspector observed the conditions. 

With regard to the accumulations of loose coal, respondent concedes 

that the inspector was not totally wrong in citing loose coal. Its 

dipute is over the alleged extensiveness of the accumulations. However, 

since Mr. Province left the inspector after walking only 150 feet of 

778 
the belt line, and was not present during the abatement process, he 

had no real basis for concluding that what the inspector observed was 

an accumulation of rock rather than loose coal. Having observed the 

inspector on the stand during the course of his testimony, I find 

him to be a credible witness. He described the accumulations he observed, 

confirmed that he made certain measurements as to their depth and 

extensiveness, and in my view has supported the existence of the 

conditions cited. 

In view of the foregoing, I conclude and find that the petitioner 

has established the fact of violation, and the citation IS AFFIRMED. 

I reject the respondent's assertion that mine management was not given 

the opportunity to accompany Inspector Zimmerman during his inspection 

rounds. In this regard, I take note of the fact that the respondent 

had not previously raised this issue as part of its pleadings filed 

in this matter. In any event, it seems clear to me that Mr. Province 

opted to leave the inspector after he had walked the 150 feet of belt 

line in question for the purpose of initiating abatement. As far as 

I am concerned, it is clear that for thi"s initial 'J.:50 foot· distance', 

management did in fact accompany the inspector, and absent any evidence 

that it objected to the inspector finishing his inspection rounds· 

without Mr. Province present, I cannot conclude that Inspector Zimmerman 

acted arbitrarily by continuing to walk the remaining portion of the 

belt line without Mr. Province being present. 

Fact of Violation - Citation No. 0758127, 11/16/81, 30 CFR 75.200 

Inspector Zimmerman confirmed that he issued the citation in 

question because the respondent failed to follow its approved roof 

control plan in that upon inspection of the cited underground mine he 

found that certain areas had been driven too wide and lacked the required 

roof support called for by the approved plan. It is clear that the 

failure by a mine operator to comply with a provision of its approved 

roof control plan constitutes a violation of section 75.200, Peabody 

Coal Company, 8 IBMA 121 (1977); Affinity Mining Company, 6 IBMA 100 

(1976); Dixie Fuel Company, Gray's Knob Coal Company, 7 IBMA 71 (1976). 

I find Inspector Zimmerman's testimony in support of the cited 

conditions to be totally credible and believable, and it fully supports 

the issuance of the citation in question. Respondent's defense goes 

more to the mitigation of the gravity and negligence of the cited 

conditions, and its testimony does not rebut the existence of the wide 

places and unsupported roof areas cited by Inspector Zimmerman. 

Accordingly, I conclude and find that the petitioner has established 

the fact of violation by a preponderance of the evidence, and the citation 

IS AFFIRMED. 

Negligence - Accumulations - 30 CFR 75.400 Citatidn 

Inspector Zimmerman testified that he observed the belt line 

"date board" and it had been dated and initialed, indicating that "the 

779 
belt had been made" but: that nothing had been done to clean up the 

accumulations which were present. He also checked the preshift books and 

the accumulations which were present. Based on his observations of 

the accumulations and the date board, he concluded that the respondent 

knew or should have known about the conditions, but did nothing to 

clean them up prior to his issuance of the violation (Tr. 128). Further, 

his testimony that the mine superintendent told him that he was working 

shorthanded and had no personnel available to clean up the cited 

accumulations remains unrebutted. Under all of these circumstances, I 

conclude and find that the cited conditions resulted from the respondent's 

failure to take reasonable care to insure that the cited accumulations 

were cleaned up, and that this failure on its part constitutes ordinary 

negligence. 

Gravity - Accumulations - 30 CFR 75.400 Citation 

While it is true that the respondent began abatement immediately, 

the fact is that at the time the inspector observed the conditions the 

belt was running and the section was in production. However, the inspector 

saw no evidence of any frozen or stuck rollers, and the belt line was 

equipped with fire sensors and alarms, and respondent's safety director 

indicated that there was no methane detected on the section. Given these 

circumstances, and the fact that the accumulations of loose coal were 

wet, and in some areas mixed in with rock, I cannot conclude that the 

conditions were grave or extremely serious. As a matter of fact, 

Inspector Zimmerman candidly admitted that given the same circumstances 

today, he could not conclude that the cited conditions were "significant 

and substantial". Accordingly, I have considered these circumstances 

in the assessment of the penalty for the citation in question. 

Negligence - Roof Support - 30 CFR 75.200 Citation 

The inspector testified that he could not state how long the 

unsupported roof areas and wide entries existed before he found them 

during his inspection on November 16, 1981. However, his "inspector 1 s 

Statement", exhibit ALJ-1, states as follows under item 2, "Remarks": 

The crosscut had been mined several weeks ago 

and appeared to have been left too wide. The 

section had been back on this area for approximately two (2) weeks and have been traveling 

this area daily. This area is preshifted three 

(3) times a day and the on shift is made by 

foreman twice daily. This condition being 

examined 5 times daily was surely noticed. This 

was the main intake and escapeway. 

When asked to explain or reconcile his "remarks", which clearly 

imply or infer that the wide places existed for several weeks and were 

not corrected until November 16, 1981, the inspector stated that his 

780 
notes do not reflect any information in this regard, and he again 

stated that he did not know how long the cited conditions may have 

existed prior to his arrival on the scene. When asked whether 

anyone from mine management offered any explanation or excuse 

for the cited conditions, the inspector confirmed that his notes do 

not reflect that it did, and he also indicated that "they may have", 

but he could not remember. 

Respondent's counsel asserted that while he does not dispute 

the existence of the conditions cited by the inspector, his primary 

concern is over the information used by MSHA in the assessment of 

the initial penalty for the violation. Specifically, counsel stated 

that the basis for the inspector's finding that the violation was 

"unwarrantable" are simply not true, and that the conclusions made 

by the special assessments MSHA official in his "narrative findings" 

that "the violation was observable readily and should have been seen 

during the preshift and on-shift examinations" were obviously based 

on the erroneous remarks made by the inspector in his "inspector's 

statement". In short, counsel asserted that this is the reason why 

respondent chose not to pay the proposed civil penalty and to "contest" 

the matter by requesting a hearing before this Commission. 

Respondent's counsel did not dispute the fact of violation as stated 

by Mr. Zimmerman in his citation. Counsel pointed out that the rib 

roll was an "unintentional" roll, and that the conditions were not known 

to management until the inspector found the conditions and cited them. 

After that occurred, management took immediate action to abate the 

conditions. The section foreman who was assigned to the section at 

the time the citation issued is no longer employed by the respondent, 

and Mr. Province was not present at the time the area was cleaned up 

(Tr. 213). 

The testimony of David Hatter, the section foreman on the evening 

shift of November 15, 1981, reflects that the rib roll occurred at 

approximately 10.:40 p.m., at the end of his shift. Although he indicated 

that he brought it to the attention of the fire boss, he also indicated 

that men were not assigned to immediately support the roof because 

it would have entailed paying them overtime. 

After careful consideration of all of the testimony and evidence 

adduced on this citation, I conclude and find that the cited conditions 

resulted from the respondent's failure to exercise reasonable care to 

insure that the areas which were too wide were fully roof supported in 

accordance with the approved roof control plan. I further find that these 

conditions should have been taken care of when discovered and reported 

by Mr. Hatter, and the failure by the respondent to correct the cited 

conditions, which it knew or should have known existed, constitutes 

ordinary negligence. 

781 
Gravity - Roof Support - 30 CFR 75.200 Citation 

Respondent contends that due to the extent of the rib roll which 

caused the wide places, men could not walk through the area due to 

the piles of coal which were present as a result of the fall. While 

this may be true, respondent offered no such excuse for the unsupported 

roof area which was cited because the two roof support timbers were 

not in place. Insofar as that location was concerned, I find that the 

cited conditions were serious. As for the unsupported areas where the 

inspector found were too wide, the fact is that the conditions were 

permitted to remain between shifts, and the locations of unsupported 

roof were in fact in an area where miners traveled through, and respondent 

conceded that a roof bolting crew was working nearby. In these circumstances, 

I conclude and find that the cited conditions were serious. 

Size of Business and the Effect of the Civil Penalties on the Respondent's 

Ability to Remain in Business. 

Respondent conceded that its mining operation is subject to the Act. 

With reg~rd to the size of its operation, respondent's counsel stated 

that in 1982 the annual tonnage mined at the mine site in question was 

63,877, and that the mine worked 82,526 man hours. For the year 1980, 

total annual production for the parent company was 164,108 tons, and 

the mine in question had a production of 145,939 tons for that year, 

and 145,939 man hours were worked (Tr. 9-10). 

I conclude and find that at the time the citations in question here 

were issued, respondent was a small-to-medium sized mine operator. Further, 

since respondent offered no evidence to the contrary, I conclude and find 

that the civil penalties which I have assessed for the two citations in 

question will not adversely affect the respondent's ability to continue 

in business. 

History of Prior Violations 

Petitioner's history of prior violations is reflected in Exhibit P-3, 

a computer print-out covering the period November 12, 1979 through 

November 11, 1981. The print-out shows 136 paid citations, eight of which 

are for prior violations of section 75.400, and five of which are for 

prior violations of section 75.200. The print-out reflects further 

that all of these prior citations for violations of sections 75.200 and 

75.400 are section 104(a) citations, and none involve imminent danger or 

other withdrawal orders. Considering the size ~f the respondent's mining 

operation, as well as the fact that the respondent has paid in full all 

of these prior citations, I cannot conclude that its history of prior 

citations is such as to warrant any additional increases in the civil 

penalties which I have assessed for the two citations in issue this case. 

Good Faith Compliance 

The record in this case establishes that the respondent rapidly 

abated the cited conditions and took immediate corrective action once 

782 
the conditions were called to its attention by Inspector Zimmerman, 

and this has been considered by me in the assessment of the civil 

penalties for the two citations which have been affirmed. 

Petitioner's proposed civil penalty assessments 

It is clear that I am not bound by the initial civil penalty 

assessments proposed by the petitioner as part of its pleadings in 

this case. However, I take note of the fact that in its initial 

proposal for assessment of civil penalties filed by the petitioner 

on July 6, 1982, petitioner proposed a civil penalty in the amount of 

$750 for Citation No. 0758739, and $500 for Citation No. 0758127. 

These proposed penalties were the result of MSHA's "special assessment" 

computations. However, in response to my Order of August 12, 1982, seeking 

clarification of MSHA's proposals, petitioner filed a letter dated 

August 24, 1982, and included copies of MSHA's "Narrative Statements" 

which were not included with its initial proposal. Included in these 

submissions were proposals for civil penalties in the amount of $1,000 

for each of the two citations in question, as well as a copy of the 

previously filed proposals calling for assessments of $750 and $500. 

The obvious confusion resulting from the aforementioned inconsistent 

pleadings and civil penalty proposals were discussed by me during the 

course of the hearing (Tr. 21-22). Also discussed was an apparent 

typographical error in the pleadings which reflected the year of the issuance 

of the citations as 1982 in one document, and 1981 in another (Tr. 138). 

No further clarification was forthcoming from the petitioner. Accordingly, 

I will assess civil penalties which I believe are reasonable and warranted 

in this case. 

Penalty Assessments 

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 following civil penalty assessments are appropriate 

for the citations which have been affirmed: 

Citation No. 

0758739 

0758127 

Date 

11/12/81 

11/16/81 

30 CFR Section 

75.400 

75.200 

ORDER 

Assessment 

$ 650 

400 

$1050 

Respondent IS ORDERED to pay the civil penalties assessed above 

in the amounts shown within thirty (30) days of this decision and order, 

and upon receipt of payment by the petitioner, this case is DISMISSED. 

~~KDfi~~ Administrative Law Judge 

783 
Distribution: 

George A. Palmer, Associate Regional Solicitor, U.S. Department of Labor, 

1929 9th Ave., South, Birmingham, AL 35256 (Certified Mail) 

Harry L. Hopkins, Barry V. Frederick, Esqs., Lange, Simpson, Robinson & 

Somerville, 1700 1st Alabama Bank Bldg., Birmingham, AL 35203 

(Certified Mail) 

784 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 APR 2 51983 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CHARLES F. LEE AND SONS, INC., 

Respondent 

DECISION 

Docket No: LAKE 80-378-M 

A/O No: 11-00096-05001 

Lee Quarry 

Appearances: Rafael Alvarez, Esq., Office of the Solicitor, U.S. 

Department of Labor, 230 So. Dearborn Street, 

Chicago, ILL 60604, for Petitioner 

Before'! 

Clara Chilson, Representative, 1114 Irene Road, 

Cherry Valley, Illinois 61016, for Respondent 

Judge' Moore 

At the beginning of the trial a number of stipulations were read 

into the record. The ones I consider important are 'that this mine is an 

open pit limestone mine with 8 employees at the time of the inspection 

working one shift a day 5 days a week. The inspector who issued the 5 

citations involved in this case had been a victim of MSHA's reductionin-force and at the time of his separation his notes had been taken from 

him and destroyed. This brilliant procedure resulted in the inspector 

having nothing more than the citations themselves and the inspector's 

statement to refresh his recollection of physical conditions which he 

had observed back in June of 1980. 

Citation No: 357701 reads "berms were not provided for the dumping 

ramp that is used by the front-end loader to feed the crushing plant." 

The inspector's statement regarding that violation adds little, if 

anything, to refresh one's recollection. The standard allegedly violated 

30 C.F.R. 56.9-54 states "berms, bumper blocks, safety hooks, or similar 

means shall be provided to prevent over-travel and overturning at the 

dumping location." I think the inspector cited the wrong- standard. The 

standard cited refers to dumping locations and makes no reference to an 

elevated roadway or ramp. The berms, bumper blocks and safety hooks 

referred to therein would prevent over-travel but would not prevent any 

equipment from running off of the side of an elevated roadway. In my 

opinion 30 C.F.R. 56.9-22 which requires guards on the outer banks of 

elevated roadways should have been the basis of the citation. While I 

am sure no prejudice resulted to respondent as a result of the wrong 

section being cited, I nevertheless think it would be presumptious on my 

part to amend a citation and penalty proposal without being requested to 

do so. I am therefore going to vacate citation No: 357701. 

785 
The other four citations in this case all involve guarding of pinch 

points. Governme.nt exhibit M-13 is a pamphlet entitled "MSHA Is Guide to 

Equipment Guarding." Various pictures in exhibit M-13 were used during 

the trial to illustrate the type of guarding violation that the inspector 

was citing. Respondent's principal objection and reason for. contesting 

these guarding citations was the inspector's alleged failure to point 

them out on a previous visit. Mrs. Clara Chilson, respondent's daughter, 

testified that 3 months prior to the issuance of the citations, a compliance 

assistance visit had been conducted. She thought the inspector was Mr. 

Joseph Knaff, the same inspector who issued the citations at issue in 

this case. But even if it was the same inspector and even if he failed 

to notice or to point out some hazardous condition, it would not insulate 

the operator from later being issued a citation with respect to that 

hazard. The purpose of a compliance assistance visit is to help the 

miner to comply with regulations but ther~ is no guarantee that every 

violation in the mine will be discovered and discussed. 

Citation No: 357702 alleges that adequate guarding was not provided 

for the pinchpoint created by the V-belt drive of the crusher. It was 

Inspector Knaff's opinion that the guard was inadequate. He stated •••• 

"if the man was walking toward the screen guard, happened to trip and 

fall into it, he could get into the pinchpoint, the belts, so I cited 

them to have the screen raised so that he would have to go over the top 

rather than almost straight forward to get in to the pinchpoint." (Tr. 

26). He did say (Tr. 34) that you would have to have arms three feet 

long to reach the pinchpoint and I don't know anyone with arms that 

long. I don't think he meant that however, because the rest of his 

testimony indicates that if a person slipped he could reach the pinchpoint. 

I am going to affirm the citation. I find a low degree of negligence 

inasmuch as the area was guarded, even though inadequately, and because 

the guard had not been mentioned during the compliance assistance visit. 

A serious injury could occur·but there was good'faith abatement and no 

history of prior violations. I assess a penalty of $30 for this violation. 

Citation No: 357703 states that the tail pulley guard on the 

stacking conveyor needs to be extended to prevent accidental access to 

the pinchpoint. When Mr. Knaff wrote the citation the adjustment was 

such that the pinchpoint was not guarded. I find the violation existed 

and affirm the citation. Th~ penalty criteria were the same for the 

previous violation and I assess the same penalty, $30. 

Citation No: 357704 charges that there was no guard at the tail 

pulley of the feed conveyor. The standard, 30 C.F.R. 56.14-1 clearly 

requires guards on tail pulleys. There might be some question about 

whether the language "which may be contacted by persons, and which may 

cause injury ••••• " applies to tail pulleys but in this case the pulley 

was in a position where it could be contacted and if so it would have 

caused injury. A higher degree of negligence is involved in having no 

guard at all than that involved in having an inadequate guard. Except 

for negligence I find the criteria the same as for the 2 previous guarding 

violations and assess a penalty of $40. 

786 
Citation No: 357705 alleges that guarding was not provided for the 

self-cleaning tail pulley in the lime and chip plant. The inspector 

testified that a self-cleaning pulley is more hazardous than the regular 

kind because it has pinchpoints in numerous places. There is a picture 

of a self-cleaning tail pulley on page 5 of government exhibit M-13. I 

find a violation occurred and that the hazard is greater when a selfcleaning pulley is left unguarded. The other penalty criteria are the 

same as in the previous violation but with the hazard being higher. I 

assess a penalty of $50. 

It is therefore ORDERED that respondent pay to MSHA, within 30 

days, a civil penalty in the sum total of $150. All citations except 

357701 are affirmed. 

Distribution: By Certified Mail 

Charles C. Moore, Jr., 

Administrative Law Judge 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 230 So. Dearborn Street, Chicago, ILL 60604 

Mrs. Clara.~hilson, Representative, Charles F. Lee and Sons, Inc., 

1114 Irene Road, Cherry Valley, Illinois 61016 

787 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 APR 251983 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

JAQUAYS MINING CORPORATION, 

Respondent. 

) 

) 

) CIVIL PENALTY PROCEEDINGS 

) 

) DOCKET NOS. WEST 80-412-M 

) WEST 81-341-M 

) (Consolidated) 

) 

) 

) 

) 

) 

-----------------------------------------

Appearances: 

Linda Bytof, Esq., Office of 

Daniel W. Teehan, Regional Solicitor 

United States Department of Labor 

San Francisco, California 

for the Petitioner 

D. W. Jaquays, Phoenix, Arizona 

Appearing pro se, 

for the Respondent 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Mine Safety and Health 

Administration, MSHA, charges respondent, Jaquays Mining Corporation, 

(Jaquays), with violating safety regulations adopted under the Federal Mine 

Safety and Health Act, 30 U.S.C. 801 ~seq. 

After notice to the parties a hearing on the merits was held in Phoenix, 

Arizona. 

The parties waived the filing of post trial briefs. 

ISSUES 

The issues are whether respondent violated the regulations and, if so, 

what penalty is appropriate. 

788 
WEST 80-412-M 

In this case petitioner issued his Citation 318288 under the authority 

of Section 104(a) of the Act. The citation allegej respondent violated Title 

30, Code of Federal Regulations, Section 57.3-22. _/ 

Petitioner's Evidence 

The petitioner's uncontroverted evidence shows the following: 

Jaquays, subject to MSHA jurisdiction, owns and operates an underground 

asbestos mine. Its production at the El Dorado Mine is sold to various 

purchasers who use the product in several states (Tr. 6, 7). At the time of 

the inspection Jaquays's mine operated 54,140 man hours annually (Tr. 7). 

On May 21, 1980 Clarence Ellis, an MSHA representative experienced in 

mining, inspected the El Dorado Mine (Tr. 11-14). There were eight or nine 

employees operating a one day shift (Tr. 14). 

Foreman Isidro Cavazos accompanied the inspector when he entered the big 

stope. 2/ The inspector observed a slab of loose and unconsolidated 

ground on the right hand rib (wall). This was twenty feet from the drill 

site (Tr. 16, P2, P3, 19). The slab was three feet long, one and a half feet 

high, and one foot thick. It had been undercut. The inspector observed a 

crack in the slab as wide as a finger (Tr. 19-20). On the side of the 

passageway there was loose muck two and one-half to three feet high (Tr. 

18). One miner in the area, about five feet from the face, was setting up a 

pneumatic drill to start drilling (Tr. 21, 22). A drill, laying in the 

middle of the walkway, was connected to an air hose (Tr. 22). 

The foreman and the inspector directed a miner to scale down the slab. 

As the miner punched it with a scaling bar it fell "easily" and "pretty much" 

filled the walkway (Tr. 23, 25). 

1/ The cited section provides as follows: 

57.3-22 Mandatory. Miners shall examine and test the back, face, and 

rib of their working places at the beginning of each shift and frequently 

thereafter. Supervisors shall examine the ground conditions during daily 

visits to insure that proper testing and ground control practices are being 

followed. Loose ground shall be taken down or adequately supported before 

any other work is done. Ground conditions along haulageways and travelways 

shall be examined periodically and scaled or supported as necessary. 

2/ A stope is an area from which ore is extracted (Tr. 16). 

78U 
The proximity of the loose ground to the passageway accentuated the 

hazard (Tr. 26). The undercut also contributed to the instability of the 

slab. Vibration from the drill might have caused the slab to fall (Tr. 27). 

Injuries such as broken bones could result if the slab fell and struck a 

miner. Also the rock fall could have severed the air hose (Tr. 27, 28). 

Discussion 

The evidence establishes a violation of 30 C.F.R. 57.3-22. Jaquays 

offered no contrary evidence (Tr. 34). 

At the hearing the president of Jaquays contended that the citation 

should not have been issued because the defective condition was immediately 

corrected (Tr. 29). 

Jaquays's argument is rejected. If a violation exists petitioner is 

obliged under the Act to issue his citation. Rapid abatement, as here, is an 

element to be considered in assessing any civil penalties. Such abatement 

does not constitute a defense to the violation. 

The citation should be affirmed. 

WEST 81-241-M 

In this case petitioner issued two citations under the authority of 

Section 104(a) of the Act. 

Citation 383191 

This citation alleges a violation of Title 30, Code of Federal 

Regulations, Section 57.9-2 3/ 

Petitioner's Evidence 

The petitioner's uncontroverted evidence shows the following: 

On November 4, 1980 MSHA representative Jack Sepulveda, a person experienced in mining, inspected the El Dorado Mine (Tr. 35-38). Isidro 

Cavazos, the foreman, accompanied him. 

3/ The cited section provides as follows: 

57.9-2 Mandatory. Equipment defects affecting safety shall be corrected 

before the equipment is used. 

790 
The inspector observed a Gardner Denver Mucking machine 4;. It was 

powered by air and operating on rails. At the time of the inspection it was 

mucking a previous blast (Tr. 39, 40, 48, P4, PS, P6). 

The mucker requires a miner to operate its levers (Tr. 41-42). The 

mucking machine did not have a step plate on the side where the miner stands 

to operate the machine (Tr. 49). 

The mucker, about three feet high and three feet wide, weighs two to 

three tons. The rails on which it rests are 18 inches apart (Tr. 46, 47). 

When sitting on its rails the mucker is three feet above the ground (Tr. 4S). 

The step plate keeps the mucker from falling on the operator if it jumps 

the tracks (Tr. 49, P4, PS). 

In the inspector's experience it is a common occurrence for the mucker 

to derail. It usually happens once or twice every blast. An operator's foot 

can be caught if the mucker does not have a step plate to place the operator 

in a position of safety. A fracture or a fatality could result if the 

operator's foot was caught (Tr. S6-S9, 62-63). 

Discussion 

The foregoing evidence establishes a violation of the regulation. 

Jaquays offered no contrary evidence. 

Jaquays contends no hazard exists. Further, according to Jaquays, 

miners do not like to use the step while mucking (Tr. 60, 61). 

I am not persuaded. The hazard is apparent. Inspector Sepulveda, who 

has had considerable experience in operating a mucker, testified his machine 

would jump the rail "nearly everyday" (Tr. 62-63). Concerning the second 

contention: Mere dislike by a miner of a safety device does not constitute a 

defense for an operator. 

Citation 383191 should be affirmed. 

4/ A mucking machine removes blasted material from the area so the drilling 

cycle can continue (Tr. 39, 40, P3). 

791 
Citation 383192 

This citation alleges a violation of 30 C.F.R. 57.13-21. 5; 

Petitioner's Evidenc~ 

Petitioner's uncontroverted evidence shows the following': 

Jaquays's double hose connection on the main level drift did not have a 

safety chain (Tr. 63, 65, 66-67, PIO, Pll). The entire length of the pressurized hose is 100 feet. One length of the double connection goes to the 

mucker machine in the drift. The other length goes to the compressor (Tr. 

65-67). 

There was no suitable locking device nor automatic shut off valve at the 

connection (Tr. 66-67). 

The one and a half inch rubber hoses were connected by wing nuts in two 

female type connectors at the double connection (Tr. 66, 67). A mucker 

operates on a minimum pressure of 70 pounds per square inch (Tr. 67). 

The hazard here occurs if the hoses break loose on the compressor side 

of the connection. The air pressure then causes the hose to whip around and 

this could cause possible injuries (Tr. 68). The helper would be in a 

hazardous position since he would be sitting on the machine (Tr. 69). If a 

hose breaks an employee in the immediate vicinity wouldn't be able to shut 

off the air (Tr. 69-70). Inspector Sepulveda experienced this inability on 

one occasion when a hose broke and he was in a stope (Tr. 69, 70). 

A tight hose connection does not prevent the hoses from parting (Tr. 

74-75). A mechanical mucker, when operating, is louder than any leaking hose 

connection (Tr. 75). 

Discussion 

Jaquays's President indicated that the company accepted MSHA's evidence 

(Tr. 76). 

The facts establish a violation of the regulation. Jaquays argues that 

no hazard exists and any mucker operator wouldn't permit leaking hoses. 

5/ The cited regulation provides as follows: 

57.13-21 Mandatory. Except where automatic shutoff valves are used, 

safety chains or other suitable locking devices shall be used at connections 

to machines of high-pressure hose lines of 3/4-inch inside diameter or 

larger, and between high-pressure hose lines of 3/4-inch inside diameter or 

larger, where a connection failure would create a hazard. 

792 
Contrary to Jaquays's pos1t1on I find a clear hazard exists if the hose 

connection fails and the hose begins to "whip" around due to the la.ck of a 

suitable locking device. 

Jaquays's position that no hazard exists because a mucker operator would 

not permit a leaky hose lacks merit. The operator wouldn't be able to hear 

the leak above the noise of the mucker (Tr. 75). In addition, there would be 

no leak for the operator to hear if the mucker was not operating because the 

machine would not then be using air pressure. 

Citation 383192 should be affirmed. 

Civil Penalties 

Petitioner proposes the following civil penalties for the ~itations: 

Cit at ion 381288 

Citation 381191 

Cit at ion 381192 

$36 

26 

24 

On the issue of civil penalties Jaquays's evidence establishes the 

following facts: 

The company was not in production at the time of the hearing. In fact, 

the company was broke and lost $100,000 in the last two years (Tr. 77-79). 

The mandate to assess civil penalties is contained in Section llO(i) 

[now 30 U.S.C. 820(i)J of the Act. It provides: 

(i) 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. In proposing civil penalties under 

this Act, the Secretary may rely upon a summary review of the information available to him and shall not be required to make findings 

of fact concerning the above factors. 

An operator's financial condition is often given considerable weight in 

assessing civil penalties. However, in connection with Jaquays's prior 

history I note that six violations were assessed in the El Dorado Mine in the 

year prior to November 30, 1980. 

'793 
In addition, I further note that Citation 383192 (no safety chain on 

high pressure hose connection) is apparently a twin to the violation by 

Jaquays of the same standard in a case decided December 16, 1980, Jaquays 

Mining Corporation, 2 FMSHRC 3625 (1980). 

The proposed penalties here are quite small. Considering the statutory 

criteria I am unwilling to disturb the proposed civil penalties. 

Based on the foregoing findings of fact and conclusions of law I enter 

the following: 

ORDER 

In WEST 80-412-M and WEST 81-341-M: 

1. Citations 381288, 381191, and 381192 and their proposed civil 

penalties are affirmed. 

2. Respondent is ordered to pay the sum of $86 to the Secretary of 

Labor within 40 days of the date of this order. 

Distribution: 

Linda Bytof, Esq., Office of the Solicitor 

United States Department of Labor 

Law Judge 

11071 Federal Building, Box 36017, 450 Golden Gate Avenue 

San Francisco, California 94102 

Mr. D. W. Jaquays 

1219 S. 19th Avenue 

Phoenix, Arizona 85009 

794 
F~DERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

APR 261983 

WESTERN SLOPE Q1ARBON, INC., ) CONTEST OF CITATION PROCEEDING 

) 

Applicant, 

v. 

SECRETARY qF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), .-/,.,/ 

Respondent. 

) DOCKET NO. WEST 81-150-R 

) 

) Order No. 786185; 12/17/80 

) 

) MINE: Hawk's Nest East 

) 

) 

) ~~~~~~~~~~~~~~~~~~~ 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

WESTERN SLOPE CARBON, INC., 

Respondent. 

\ 

\ 

\ 

) 

) CIVIL PENALTY PROCEEDING 

) 

) DOCKET NO. WEST 81-286 

) 

) MSHA CASE NO. 05-00293-03061 

) 

) MINE: Hawk's Nest East 

) 

) I 

~~~~~~~~~~~~~~~~-'-~) 

Appearances: 

Katherine Vigil, Esq., and 

James H. Barkley, Esq., Office of the Solicitor 

United States Department of Labor 

1585 Federal Building, 1961 Stout Street 

Denver, Colorado 80294 

For the Secretary 

Phillip D. Barber, Esq., Welborn, Dufford, Cook & Brown 

1100 United Bank Center 

Denver, Colorado 80290 

For the Operator 

Before: John A. Carlson, Judge 

DECISION 

This case, heard under the prov1s1ons of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et~· (the "Act"), arose from a - I • December 17, 1980 inspection of the Hawks Nest East Mine of Western Slope 

Carbon, Inc. (Western Slope). On that date Thomas Heuschkel, a federal 

coal mine inspector, issued an irmninent danger withdrawal order under 

795 
section 107(a) of the Act. He modified the order on December 24, 1980 to 

specify that the violation of the float coal dust standard published at 30 

C.F.R. § 75.400, charged in the withdrawal order, was also a violation of 

section 104(a) of the Act. These determinations were challenged by Western 

Slope's Application for Review which was docketed as WEST 81-150-R. The 

Secretary's proposal of a civil penalty of $960.00 for the alleged violation 

was also contested. The Commission docketed the penalty matter as WEST 

81-286, which was consolidated for hearing with the earlier matter. 

Following a Denver, Colorado hearing, both parties submitted briefs. 

The jurisdiction of the Commission is conceded by the operator. 

REVIEW AND DISCUSSION OF 

THE EVIDENCE 

I 

The inspector issued his imminent danger withdrawal order because of 

what he perceived to be an excessive accumulation of float coal dust in the 

return entries from a longwall section in the mine. This condition, he 

charged, violated the mandatory safety standard set forth at 30 C.F.R. 

§ 75.400. It provides~ 

Coal dust, including float coal dust deposited on rock-dusted 

surfaces, loose coal, and other combustible materials, shall 

be cleaned up and not be permitted to accumulate in active 

workings, or on electric equipment therein. !J 

The inspector testified that he observed a deposit of "very black" 

float coal dust "in excess of an eighth of an inch deep" over a distance of 

about 500 feet in the number 1 and 2 entries, 7 west section (transcript 

10-11). The 500 feet in question were between crosscuts 51 and 56, he 

stated, and the dust accumulation represented a "very explosive condition." 

He enlarged upon the hazard by explaining that the dust could be put in 

suspension, and thus made potentially explosive, by any air disturbance in 

the entries. A roof fall in the gob area behind the longwall face, he said, 

could release methane and also stir up the dust, creating a situation" ••• 

where the slightest spark would set off a tremendous explosion" (Tr. 23). 

Concerning ignition sources, he testified that two electric motors used to 

drive the conveyors could generate sparks. The motors, he stated, were 

located at the tailgate of the conveyor, near the intersection of the 

longwall face and the entries. Also, according to the inspector, sparks 

could be generated by the longwall mining machine, or could result from 

rocks falling on metal machinery during the mining process. 

II This section duplicates the language of section 304(a) of the 1969 Coal 

Act. 

796 
Inspector Heuschkel also maintained that the presence of methane 

enhanced the fire and explosion hazard posed by the coal dust. His 

inspection notes showed readings ranging from .3S% to 2% at various points 

in the area of the entries where the coal dust lay. He also testified that 

he achieved a reading of S% (the top of the monitor he was using) in the gob 

area, behind the longwall face. This area was isolated from work areas by 

danger boards. The inspector went behind the boards to take the high 

reading. 

The inspector maintained that an explosion of the coal dust, or a 

combination of the dust and methane, could result in fatal injuries to all 

miners in the west side of the mine (Tr. lS). The undisputed evidence shows 

that no miners were in the entries in question, but that a crew was working 

on the longwall machine, and a total of eight or nine miners were in the 

general area. None was closer than 300 feet to the coal dust ·area. (Tr. 32, 

so, 64). 

Under cross examination the inspector acknowledged that he saw no coal 

dust in suspension during his inspection, and that he could have been 

mistaken about the number of motors at the end of the conveyor - there may 

have been but one. He also acknowledged that the methane readings recorded 

in his inspection notes were all within acceptable limits under applicable 

standards. The S% reading, he admitted, was taken in an area where the 

operator was not obliged to take readings, and was not recorded in his notes 

(Tr. 34). 

The inspector first maintained that his withdrawal order covered the 

longwall, but later conceded that it did not. It covered the entries only; 

work could continue on the longwall. 

11 

Western Slope presented evidence through Ronald E. Neil, foreman in the 

area in question, and Ralph Audin, safety director for the mine. 

Neil disagreed with the federal inspector about the quantity of coal 

dust present. He acknowledged that a "gray film" of coal dust was present 

over rock dust'!_; on the floor. The rock dust, he said, was visible in 

"most places." 

Most of Neil's testimony_, however, went to the issue of the likelihood 

of an explosion (Tr. Sl ,--55}. He stressed that no production was taking 

place at the time of inspection because the stage loader which feeds the 

coal to the conveyor was under repair. He substantiated the claim with a 

copy of his daily report which showed no production of his shift on the date 

of inspection (Western Slope's exhibit S). Work on the stage loader took 

place at the far or headgate end of the conveyor, some 428 feet from the 

entries cited by the inspector (Tr. SO). 

2/ Rock dusting is one of the acceptable methods for abatement of float 

coal dust hazards. See 30 C.F.R. § 7S.402. 
Neil also emphasized that there were no ignition sources within the 

entries in question. The entries contained no machines; and no cables, 

wires, or other electrical conductors ran through the area. Concerning the 

motor at the tailgate of the longwall conveyor, Neil testified that it was 

not operating at the time of inspection because there was no production at 

the face. Moreover, there was but one motor at the tailgate, not two as 

indicated by the inspector. He further asserted that methane readings are 

taken before the belt is started. If the readings exceed 1 percent, 

start-up does not occur. Beyond that, a detector device installed about 15 

feet from the machine automatically "kicks the power off of everything" if 

the methane level exceeds 2 percent. 

Western Slope's safety director, Mr. Audin, did not observe the 

conditions underground at the time of the inspection. His testimony added 

little of substance to that of the foreman. 

III 

Having considered all the evidence, I must conclude that it establishes 

a violation of 30 C.F.R. § 75.400. The existence of an accumulation of 

float coal dust was in some dispute, but I find the inspector's evidence on 

this issue generally credible. Western Slope had a rock dusting program 

which involved use of a mechanical trickle duster supplemented by hand 

dusting. Foreman Neil, however, admitted that the trickle duster had not 

been in operation at the time of inspection, and he was vague about when it 

last worked. He was also unsure as to when the entries in question were 

last dusted by any method. Neil did concede the presence of some coal dust, 

but claimed it was not as thick as the 1/8 inch estimated by the inspector. 

In Old Ben Coal Company, 1 FMSHRC 1954 (1979), the Corrnnission made 

clear that a violation of the standard occurs whenever "an accumulation of 

combustible materials exists." In doing so it rejected the prior view of 

the Interior Department's Board of Mine Operations Appeals that the crux of 

the violation is the operator's failure to clean up an accumulation "within 

a reasonable time." Later, in a case involving the same operator, Old Ben 

Coal Company, 2 FMSHRC 2806 (1980), the Commission held that measurements or 

other precise evidence of the depth or extent of accumulation were unnecessary to show violation. It declared that" ••• an accumulation exists 

where the quantity of combustible materials is such that, in the judgment of 

an authorized representative of the Secretary, it likely could cause or 

propagate a fire or explosion if an ignition source were present." (Footnotes omitted.) I am convinced that an accumulation existed. 

IV 

For the reasons which follow, however, I am not convinced that the 

violative condition constituted an imminent danger. Section 3(j) of the Act 

defines an imminent danger as: 

The existence of any condition or practice in a coal or other 

mine which could reasonably be expected to cause death or 

serious physical harm before such condition or practice can 

be abated. 

798 
The commonly used test for determining the existence of an imminent 

danger can be found in Old Ben Coal Corporation v. Interior Board of Mine 

Operation's Appeals, 523 F. 2d 25, 32 (7th Cir. 1975). There the Court 

said: 

[W]ould a reasonable man, given a qualified inspector's 

education and experience, conclude that the facts indicate 

an impending accident or disaster, threatening to kill or 

to cause serious physical harm, likely to occur at any 

moment, but not necessarily immediately? The uncertainty 

must be of a nature that would induce a reasonable man to 

estimate that, if normal operations designed to extract 

coal in the disputed area proceed, it is at least just as 

probable as not that the feared accident or disaster would 

occur before elimination of the danger. 

Western Slope argues that the government's evidence in s~pport of the 

immediacy aspect of an imminent danger charge was weak. I must agree. 

There is no dispute that several elements beyond an accumulation must be 

present before float coal dust can burn or explode. First, the dust roust be 

in suspension. Second, there must be an ignition source, a fire or spark. 

The parties agree that at the time in question no dust was in suspension. 

The Secretary argues that the evidence shows that small adjustments in the 

mine's mechanical ventilation, or even a miner walking down the entry, could 

raise dust from the floor, quickly changing that situation. To that extent, 

the Secretary makes out an arguable case, even granting that the evidence 

shows that miners rarely had occasion to walk in the return entries cited. 

The true difficulty lies in the evidence concerning the potential for a 

spark. The inspector professed a belief that the presence of excessive 

methane gas intensified the coal dust hazard, because a methane ignition 

away from the dust area could put the dust in suspension and at the same 

time ignite it. On this issue I must share Western Slope's skepticism since 

none of the inspector's notes taken contemporaneously with the inspection 

mention the 5 percent methane figure which he stressed in his testimony. 

All the figures recorded in the no~es were within admittedly acceptable (and 

presumably non-explosive) limits. I The inspector may have achieved a 

high reading in the gob area behind the machine, but I must wonder why it 

was not significant enough to record at the time it was taken, when much 

lesser figures were written down in the inspection notes. 

3/ The mandatory standards at 30 C.F.R. § 75.308 and 30 C.F.R. § 75.309(a) 

require withdrawal of miners when monitoring reveals 1.5 volume percentum of 

methane at the face or in a split of air returning from a working section. 

It is apparent from the record that the inspector did not believe that the 

circumstances warranted action under these sections. Rather, he regarded 

the entries where he recorded readings as return air courses under 30 C.F.R. 

§ 315-2(d), which permits a maximum of 2.0 volume percentum (Tr. 29). 

799 
The ev.idence plainly indicates that there were no ready sources of 

ignition in the cited entry proper. There were no machines or equipment, no 

electrical wires or cables, and no miners had r~ason to walk through the 

entries. The most likely ignition sources were in the longwall area which 

intersected the entries. An undetected defect in the longwall mining 

machine itself, or in the electric motors driving the conveyor, could 

presumably generate a spark. I must find, however, that the likelihood of 

an ignition from ongoing mining was not great at the time of the order 

because the longwall equipment was dowz for repairs. The operator's 

evidence on that point is convincing. _/ 

There is a possibility, of course, that repair activities could somehow 

have generated a spark. Foreman Neil indicates that some welding was 

necessary at the stage loader at the far end of the longwall (Tr. SO). The 

stage loader, however, was 428 feet from the nearest dust accumulation. 

Furthermore, had the inspector believed that the repair activ\ties posed an 

immediate ignition danger, his withdrawal order surely would have 

encompassed the longwall area. It did not, however. Only the entryways 

were covered; he allowed work to continue at the longwall. 

The Secretary did not argue that the circumstances in this case offer 

a parallel to the case where an inspector issues a withdrawal order even 

though an operator has already withdrawn its miners voluntarily. Such 

orders are proper because of the possibility that a voluntary withdrawal, 

which lacks the force of law, may be revoked at any time by the operator. 

Eastern Associated Coal Corp. v. IBMA, 491 F. 2d 277 (4th Cir. 1974). Had 

the inspector in the case at hand closed down the longwall area, a similar 

argument could be made. He did not, however, and there is thus no 

parallel. 

From all the evidence I must conclude that while there was an improper 

accumulation of float coal dust, such accumulation, under all the circumstances, did not constitute an imminent danger. The possibility that the 

dust would be both raised into suspension and ignited was simply too

5

remote to create a likelihood of an explosion or fire "at any moment."_/ 

4/ In so finding, I do not overlook the inspector's testimony that although 

the conveyor motor was not running, it had been running recently because it 

was warm to the touch. I question whether such a detail would have been 

noted when the inspector was confused as to whether there were two motors or 

one. 

5/ Perhaps the lack of convincing evidence supporting an imminent danger 

was due to the inspector's apparent beli~f that every float dust violation 

is per se an imminent danger. I find no support in the law for such a 

belief. 

800 
v 

The Secretary alleges that the accumulation of float coal dust 

constituted a "significant and substantial" viol at ion under the Act. 6 / 

The Secretary may appropriately allege such a special finding in connection 

with a section 104(a) violation. Cement Division, National Gypsum Compqny, 

3 FMSHRC 822 (1981). That case also defines a significant and substantial 

violation as one where '' •.• there exists a reasonable likelihood that the 

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

serious nature." 

The "imminent danger" and "significant and substantial" concepts share 

a common element: the degree of possibility that a hazard will result in a 

death or serious lnJury. That is not to suggest, however, that the tests 

are the same; clearly, they are not. The hazard constituting an imminent 

danger must offer a momentary likelihood of an accident if mining continues. 

In the hierarchy of hazards, the significant and substantial finding 

requires considerably less: simply a reasonable likelihood that a serious 

injury may occur. No element of immediacy is necessary. 

In the present case, had the accumulated float dust exploded, death or 

severe injury would have been probable for any miners in the west side of 

the mine. The potential for severe injury, if an explosion were to occur, 

1s therefore plain. 

Although I found insufficient evidence of an impending or momentary 

likelihood of a suspension and ignition of the dust, I must conclude that 

the evidence meets the lesser test of a "reasonable likelihood" of such an 

event. Some element of danger is present whenever an unlawful accumulation 

of coal dust exists. Congress recognized this by forbidding accumulations 

in the 1969 Coal Act itself, rather than leaving the matter to the 

Secretary's mandatory standards alone. I am convinced that the presence of 

a sizeable repair crew working in the longwall created a reasonable, though 

not an imminent, likelihood of an accident. 

6/ Section 104(d) of the Act provides that where an inspector finds " ••• a 

violation of any mandatory health and safety standard, and if he also finds 

that while the conditions created by such violation do not cause an ' . imminent danger, such violation is of such a nature as could significantly 

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

safety or health hazard •.• he shall include such finding in any citation 

given to the operator under this Act." (Emphasis added.) Section 104(e) of 

the Act permits a withdrawal order after a series of significant and 

substantial violations which establish a "pattern of violations." 

801 
VI 

We now consider an appropriate penalty for the violation itself. 7; 

Sect ion 110( i) of the Act reqt.lires the Commission, in pen/a:l ty ass.essment s, 

to consider the operator's size, its negligence, its good/ 1faith in seeking 

rapid compliance, its histdry of prior violations, the effect of a monetary 

penalty on its ability to remain in business, and the gr4Jvity of the 

violation itself. 1 

Stipulations of record show that at the time of vio~ation the mine 

employed 239 persons, and at the time of hearing 90; thc!t it had a history 

of 27 prior assessed and paid violations; and that asse~sment of a reasonable penalty would not impair its ability to remain in ~usiness. These 

elements weigh against Western Slope in the penalty cal~ulation, as does its 

moderate negligence in allowing the accumulation to exi~t for at least those 

hours since the last mining took place. · 

The evidence also shows, however, that the operatori rapidly abated the 

hazard by rock dusting. More important, the record demo\nstrates that the 

gravity of the violation was considerably less than alleged. The amount of 

accumulation, though violative, was not extensive. The likelihood of an 

impending or momentary accident was remote because there\was only the slim 

possibility of a simultaneous suspension and ignition of explosive 

quantities ' ' f d o ust. I : 

I 

For this last reason I must conclude that the $960.00 penalty sought by 

the Secretary is excessive. On balance, I. hold that a penalty of $250.00 is 

appropriate. 

CONCLUSIONS OF LAW 

Upon the entire record, and in consonance with the factual findings 

embodied in the narrative portion of this decision, it is cobcluded: 

( 1) That the Conunission has jurisdiction to decide this matter, 

(2) That Western Slope violated the mandatory standard published at 30 

C.F.R. § 75.400. 

( 3) That the violation was "significant and substantial." 

(4) That $250.00 is the appropriate penalty for the violati~n. 

(5) That the violation found to exist did not constitute an inuninent 

danger under the Act. 

7/ Despite the fact that t9~ withdrawal order was unwarranted, the 

underlying float coal dust ffolation alleged under section l04(a) of the Act 

was proved, and a penalty must therefore be imposed, Cf. Island Creek Coal 

Company, 2 FMSHRC 279 (1980), 

802 \ ' "' 
ORDER 

Accordingly, the withdrawal order issued December 17, 1980 is ORDERED 

VACATED; the Secretary's 104(a) citation alleging violation of 30 C.F.R. 

§ 75.400 is ORDERED AFFIRMED; and Western Slope is ORDERED to pay a civil 

penalty of $250 in connection with such affirmed citation within 30 days of 

the date of this decision. 

Distribution: 

Katherine Vigil, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Phillip D. Barber, Esq. 

Dufford, Cook & Brown 

1100 United Bank Center 

Denver, Colorado 80290 

Judge 

803 

*U.S. GOVERNMENT PRINTING OFFICE : 1983 0-381-569/5279 .