MAY 1987
COMMISSION DECISIONS
05-28-87
05-29-87

Jimmy R. Mullins v. Beth-Elkhorn Coal Corp.,
and Local 1468 UMWA and International UMWA
Jim Walter Resources, Inc.

KENT 83-268-D

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SE 85-36-R
SE 86-83

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ADMINISTRATIVE LAW JUDGE DECISIONS
05-01-87
05-05-87
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05-06-87
05-06-87
05-12-87
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05-12-87
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Ohio River Collieries
Grateside Coals, Inc.
Columbia Portland Cement Co.
Phelps Dodge Corporation
Emko Corporation
Ronald Tolbert v. Chaney Creek Coal Corp.
Brian Lackey Concrete .
Bull Run Mining Co., Inc.
Jim Walter Resources, Inc.
Wilfred Bryant v. Dingess Mine Service, etc.
Secretary of Labor for Ronald G. Nelson v.
Valley Camp Coal Co.(Donaldson Mining Co.)
Peabody Coal Company
Secretary of Labor on behalf of David Ward v.
Peabody Coal Company
Kelso Coal Company, Inc.
Consolidation Coal Company
Consolidation Coal Company
Jim Walter Resources, Inc.
Sanger Rock & Sand
Kelley Trucking Company
Helen Mining Company
Triple Elkhorn Mining Co.
Wilmon Moore d/b/a Big Blue Trucking
Secretary of Labor on behalf of Joseph
G. Delisio, Jr. v. Mathies Coal Co.
Charles J. Merlo, Inc.
Jim Walter Resources, Inc.

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Washington, D.C. 20402

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MAY 1987
Review was granted in the following cases during the month of May:
Secretary of Labor, MSHA v. Texasgulf, Inc., Docket Nos. WEST 85-148-M,
WEST 86-83-M. (Judge Lasher, April 14, 1987)
Local Union 2333, District 29, UMWA v. Ranger Fuel Corporation, Docket
No. WEVA 86-439-C. (Interlocutory Review of Judge Melick 1 s oral decision)
Review was denied in

the month of

Secretary of Labor, MSHA v. Brown Brothers Sand Company, Docket No.
SE 86-23-M. (Judge Koutras, March 25, 1987)
Alvin Ritchie v. Kodak Mining Company, Docket No. KENT 86-138-D.
(Judge Melick, April 14, 1987)

COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

May 28, 1987

JIMMY R. MULLINS
v.

Docket No. KENT 83-268-D

BETH-ELKHORN COAL CORPORATION,
LOCAL 1468, DISTRICT 30,
UNITED MINE WORKERS OF
AMERICA
and
INTERNATIONAL UNION, UNITED
MINE WORKERS OF AMERICA

BEFORE:

Backley, Doyle, Lastowka and Nelson, Connnissioners

DECISION

BY THE COMMISSION:
This proceeding involves a discrimination complaint filed by Jimmy
R. Mullins pursuant to the Federal Mine Safety and Health.Act of 1977.
30 U.S.C. § 801 et seq. (1982)("Mine Act"), The complaint alleges that
Mullins 1 removal from a dispatcher 1 s job pursuant to an arbitration
award resolving a seniority grievance violated section lOS(c)(l) of the
Mine Act by contravening his rights under 30 C.F .R. Part 90 (1'Part
90"). ll Former Connnission Administrative Law Judge Richard C. Steffey

lf

In relevant part, section 105(c)(l) of the Mine Act provides:
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any
miner, representative of miners or applicant for
employment in any coal or other mine subject to this
[Act] because such miner, representative of miners
or applicant for employment •.. is the subject of
medical evaluations and potential transfer under a
standard published pursuant to section [101] of this

891

found that the removal of Mullins from the dispatcher's job constituted
unlawful discrimination, ordered that Mullins be reinstated to that
position, and awarded back pay, expenses, and attorney's fees. 7 FMSHRC
1819 (November 1985)(ALJ). The Commission granted petitions for
discretionary review filed by Beth-Elkhorn Corporation ( 11 Beth-Elkhorn 11 ) ,
Local 1468, District 30, United Mine Workers of America ( 11 UMWA 11 ) , and
the International Union. UMWA. 'f:./ The Secretary of Labor ("Secretary")
filed an amicus curiae brief in support of petitioners. Because we
conclude that miners 1 Part 90 rights do not entitle miners to particular
transfer positions, we reverse.

L
The parties stipulated to the relevant facts. 7 FMSHRC at 1821Mullins began working for Beth-Elkhorn at its No. 26 underground
coal mine in 1970. At all times relevant to this proceeding, the UMWA
represented miners at this mine for collective bargaining purposes.
Until February 1981, Mullins worked as a repairman on a non-production
maintenance shift. In May· 1980, Mullins had a chest x-ray that
evidenced pneumoconiosis. and the Department of Labor's Mine Safety and
Health Administration ("MSHA11 ) informed Mullins and Beth-Elkhorn of
Mullins' option under Part 90 to work in an area of the mine in which
the average concentration of respirable dust in the atmosphere was
continuously maintained at or below 1.0 mg/m3. See 30 C.F.R. §§ 90.1 &
90.3. Because the average concentration of respirable dust in the mine
atmosphere in which Mullins was working was maintained at or below 1.0
mg/m3, Mullins continued to work in his repairman's position.

25.

On February 3, 1981, through exercise of his seniority rights
under the National Bituminous Coal Wage Agreement of 1981 ("the
Agreement"), the collective bargaining agreement to which Beth-Elkhorn
and the UMWA were
, Mullins secured a job as an electrician on

[Act] •. , or because of the exercise by such miner,
representative of miners or applicant for employment
on behalf of himself or others of any statutory
afforded by chis [Act ,

"O0 ·1s( C)'''
30 USC
ooo:}
\L}o
Under 30 C.F,R. Part 90 0 as relevant here, a miner determined by
the Secretary of Health and Human Services to have evidence of the
development of Black Lung disease (pneumoconiosis) is given the
opportunity to work without loss of pay in an are<' of the mine where the
average concentration of respirable dust in the mine atmosphere during
each shift to which that miner is exposed is continuously maintained at
or below 1.0 milligrams per cubic meter of air ("mg/m3 11 ) . 30 C.F.R.
§ 90.3.
~/

For the sake of brevity, Local 1468, District 30, and the
International Union of the UMWA are referred to herein as the "UMWA" or
"the Union" unless the context requires a more specific reference.
892

the second shift, also a non-production shift. J/ In September 1981 a
sampling of the atmosphere in the area in which Mullins was working
revealed that the average concentration of respirable dust exceeded 1.0
mg/m3. MSHA issued Beth-Elkhorn a citation alleging a violation of 30
C.F.R. § 90.100 for failing to maintain the required low dust mine
atmosphere where Mullins was working. Mullins became eligible again
under Part 90 for transfer to a job in a less dusty area of the mine.
Although Beth-Elkhorn offered to transfer Mullins to a less dusty area,
he elected to waive his transfer option, pursuant to 30 C.F.R.
§ 90.104(a), and to retain the electrician's job. ~/ By letter dated
October 15, 1981, Beth-Elkhorn informed MSHA that it did not believe
that the dust in Mullins 1 work area could be maintained at the
appropriate level but that Mullins had elected to waive his Part 90
transfer rights and remain in the electrician 1 s position. Based on
Mullins 1 waiver, MSHA terminated the previously issued citation.
Approximately one ye~r later, in September 1982, the dispatcher's
job on the second shift became permanently vacant and was advertised for
bidding in the mine. By letter dated September 17, 1982, Mullins
informed MSHA that he now wished to re-exercise his Part 90 rights to
obtain that particular job. In his letter, Mullins stated, "If I cannot
obtain this job as a dispatcher, then I do not wish to re-exercise my
rights as a Part 90 miner. 11 Exh. 9. In response, MSHA notified BethElkhorn in November 1982 that Mullins had exercised his option 11 to work
in a low dust area, 11 and that 11 by the 21st calendar day after receipt of
the notification .•. [Mullins] must be working in an environment which
meets the [ 1. 0 mg/m3] respirable dust standard. 11 Exh. 11.
Mullins also bid on the dispatcher's job under the seniority
provisions of the Agreement. Another bidder for the job, Norman
Caudill, had greater mine seniority but was not a Part 90 miner. BethElkhorn awarded the job to Mullins based on the 11 superseniority
provision" of Article XVII(i)(lO) of the Agreement, which gives a onetime job preference to Part. 90
members. 2_/
}/
Article XVII(i) of the Agreement specifies that the filling of all
permanently vacant jobs and new jobs created during the term of the
contract shall be made on the basis of
Article XVII(a)
defines 11 seniorityH as 11 Length of service and the ability· to step into
and perform the work of the job at the time i t is awarded. 11 Exh. 27,
pp. 64-76.
30 C.F.R. § 90.104(a) provides that miners through notification
or other actions, may waive their Part 90 rights. This section also
permits miners to re-exercise their Part 90 rights following a waiver.
30 C.F.R. § 90.104(c).
~/

Article XVII(i)(lO) states:
If the job which is posted involves work in a
"less dusty area" of the mine (dust concentrations
of less than one milligram per cubic meter), the
provisions of the Article shall not apply if one of
893

Under the Agreement's procedures, Caudill filed a grievance with
respect to Beth-Elkhorn 1 s decision to award Mullins the job. The UMWA's
Local 1468, District 30 represented Caudill, and the grievance proceeded
to arbitration. In an op1n1on issued on April 15, 1983, the arbitrator
sustained Caudill 1 s grievance. The arbitrator held that the superseniority provision of Article XVII(i)(lO) applies only to Part 90
miners who are members of a "production crew, 11 and that Mullins,_ as an
electrician on a non-production maintenance shift, was not entitled to
the one-time preference. Consequently, the arbitrator awarded the job
to Caudill. Exh. 18.
Subsequent to the award, Beth-Elkhorn representatives met with
Mullins and informed him that they would comply with the arbitrator's
ruling by giving the dispatcher 1 s job to Caudill. They also advised him
that he could return to his former electrician 1 s position or begin a new
job as a repairman on the same non-production shift. The repairman's
job carried the same hourly rate of pay and, in Beth-Elkhorn 1 s opinion,
was in a mine atmosphere that (unlike the electrician's position)
complied with the 1.0 mg/m3 dust standard. After this meeting, Mullins
chose to return to his job as an electrician.
In a letter dated May 2, 1983, Beth-Elkhorn informed MSHA of these
developments and stated that, in its opinion, Mullins' choice
constituted a waiver, pursuant to 30 C.F.R~ § 90.104, of his Part 90
transfer rights. At about the same time, Mullins filed a complaint with
MSHA alleging, in essence, that his removal from the dispatcher's.
position discriminatorily denied him his Part 90 rights in violation of
section 105(c)(l) of the Mine Act. Following an investigation of the
complaint, MSHA determined that Mullins had not been subjected to
illegal discrimination under the Act and declined to prosecute a
complaint on Mullins' behalf. Mullins then instituted the present
proceeding before this independent Commission pursuant to section
105(c)(3) of the Act. 30 U.S.C. § 815(c)(3).
In an eighty-page decision favoring Mullins, the judge found that
Mullins had engaged in protected activity under section 105(c)(l) of the
Mine Act when he re-exercised his Part 90 transfer rights and bid on the
job of dispatcher. 7 FMSHRC at 1850-54. The judge concluded that
the bidders is an Employee who is not working in a
11
less qusty area" and who has received a letter from
the U.S, Department of Health and Human Services
informing him that he has contracted black lung
disease and that he has the option' to transfer to a
less dusty area of the mine. In such event, the job
in the less dusty area must be awarded to the
letterholder on any production crew who has the
greatest mine seniority. Having once exercised his
option, the letterholder shall thereafter be subject
to all provisions of this Article pertaining to
seniority and job bidding. This section is not
intended to limit in any way or infringe upon the
transfer rights which letterholders may otherwise be
entitled to under. the Act.

894

Article XVII(i)(lO) of the Agreement itself discriminated against and
interfered with the rights of Part 90 miners by restricting them to a
one-time only exercise of superseniority in bidding on vacant jobs and
by giving preference in job placement only to Part 90 production crew
members. 7 FMSHRC at 1844-45, 1854-61. The judge held that the UMWA
discriminated against Mullins "when [it] brought a grievance to
arbitration and succeeded in obtaining an interpretation of Article
XVII(i)(lO) of the [Agreement] which resulted in.an award of a job
performed in [a low dust area] to a miner who did not have any Part 90
rights at all. 11 7 FMSHRC at 1850. The judge further held that BethElkhorn discriminated against Mullins by removing him from the
dispatcher 1 s job in compliance with the arbitrator's award. 7 FMSHRC at
1868-73. In reaching this conclusion, the judge opined that BethElkhorn should have "re-examine[d] the [Agreement] ... to determine why
it should not be revised in order to permit all Part 90 miners to bid on
vacancies in positions performed in less than 1.0 milligrams of
respirable dust." 7 FMSHRC at 1872. Finally, the judge concluded that
the UMWA was an "operator" as defined in section 3(d) of the Mine Act,
and consequently could be assessed a civil penalty for the violation of
section 105(c)(l). 7 FMSHRC at 1841-44.
II.

The principal question presented is whether the judge erred in
concluding that Mullins enjoyed the right to obtain a particular Part 90
transfer position -- here, the dispatcher's job on the second shift -and that Beth-Elkhorn's award of that job to another. miner pursuant to
the arbitration decision violated section 105(c)(l) of the Mine Act.
There is no dispute that a Part 90 miner, upon exercising his transfer
option, has the right to be transferred to ! position satisfying the
requisite Part 90 criteria. We hold, however, that a Part 90 miner is
not entitled to dictate to the operator or otherwise specify the
particular position to which the transfer must be made. We find no
statutory or regulatory basis for the judge 1 s contrary views.
The general principles governing analysis of discrimination cases
under the Mine Act are settled. In order to establish a prima facie
case of discrimination under section 105(c) of the Act, a complaining
miner bears the burden of production and proof in establishing that
(1) he engaged in protected activity and (2) the adverse action
complained of was motivated in any part by that activity. Secretary on
behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(October 1980) rev 1 d on other grounds sub. nom. Consolidation Coal Co.
v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981).
The operator may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was in no part
motivated by protected activity. If an operator cannot rebut the prima
facie case in this manner, it nevertheless may defend affirmatively by
proving that it also was motivated by the miner's unprotected activity
and would have taken the adverse action in any event for the unprotected
activity alone. Pasula, supra; Robinette, supra. See also Eastern
Assoc. Coal Corp. v. FMSHRC 2 813 F.2d 639, 642 (4th Cir. 1987); Donovan
v. Stafford Construction Co~, 732 F.2d 954, 958-59 (D.C. Cir. 1984);

895

Boich v. FMSHR.C, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically
approving the Commission's Pasula-Robinette test).
The first question is that of protected activity: Did Mullins
enjoy the right under the Mine Act and Part 90 to transfer to a specific
position? The Commission has established some broad guidelines relevant
to that question. We have held that section 105(c) of the Act bars
discrimination against ·or interference with miners who are "the subject
of medical evaluations and potential transfer" under the Part 90
standards. Goff v. Youghiogheny & Ohio Coal Co., 7 FMSHR.C 1776, 1780-81
(November 1985)( 11 Goff I 11 ) . We have emphasized the importance of the
rights and protections conferred by Part 90 and the related provisions
of the Act, but have recognized that their extent is not unlimited. For
example, neither the Act nor Part 90 entitles a qualifying miner to work
in a mine environment totally free ~f respirable dust. Gotf v.
Youghiogheny & Ohio Coal Co., 8 FMSHRC 1860, 1865 (December 1986)("Goff
II 11 ) . Claims of protected activity and discrimination in this context
must be resolved upon the basis of a careful review of the structure of
miners I rights and Operator_S I Obligations COntained in the pertinent
statutory and regulatory texts.
In general, key provisions of the Mine Act and related mandatory
health standards require that the average concentrations of respirable
dust and of respirable dust containing quartz in the atmospheres of
active workings in coal mines be maintained at or below specified low
levels. 30 U.S.C. §§ 842 & 845; 30 C.F.R. §§ 70.100 et seg. & 71.100 et
seg. Section 101(a)(7) of the Act further authorizes the Secretary to
develop improved mandatory health or safety standards providing that
miners whose health has been impaired by exposure to a d~signated hazard
"shall be removed from such exposure and reassigned." §_/ As we stated
in Goff I, "Part 90 implements this statutory ma:µdate by providing for
the transfer of miners who, as a result of exposure to the health hazard

£/

In relevant part, section 101(a)(7) states:
Where appropriate, [any mandatory health or safety
standard promulgated under this subsection] shall
provide that where a determination is made that a
miner may suffer material impairment of health or
functional capacity by reason of exposure to ... [a]
hazard covered by such mandatory standard, that
miner shall be removed from such exposure and_
reassigned. Any miner transferred as a result of
such exposure shall continue to receive compensation
for such work at no less than the regular ·.".'ate of
pay for miners in the classification such miner held
immediately prior to his transfer. In the event of
the transfer of a miner pursuant to the preceding
sentence, increases in wages of the transferred
miners shall be based on the new work classification.

30 U.S.C. § 811(a)(7)(emphasis added).

896

of respirable dust, have developed pneumoconiosis." 7 FMSHRC at 1778
n. 3. The improved Part 90 standards supercede the interim mandatory
health standards contained in section 203(b) of the Mine Act, 30 U.S.C.
§ 843(b), which provided specifically for the transfer of miners with
evidence of development of pneumoconiosis "to another position in any
area of the mine. 11 (Emphasis added.)
'J;he Part 90 trans·fer option encompasses three basic rights: .
(1) to.be assigned work in "!!.!!area of a mine" where the required Part
90 dust concentration levels are continuously maintained (30 C.F.R.
§§ 90.3(a), 90.100 & 90.101); (2) in "an existing position" at the same
mine on the same shift or shift rotation or, if the miner agrees in
writing, in ~ different coal mine, ~ newly-created position or .!!.
position on.!!. different shift or shift rotation" (30 C.F.R.
§ 90.102(a)); and (3) at no less than the regular rate of pay earned by
the miner immediately before exercise of the transfer option (30 C.F.R.
§ 90.103)(emphases added).
It is the duty of operators to effectuate
these rights as applicable with respect to their Part 90 miners.
11

Nothing in the quoted texts -- from superseded section 203(b) of
the Mine Act (supra) to the present Part 90 standards -- requires that
eligible miners be transferred to particular positions. On the
contrary, placement in .!!. position meeting the relevant dust
concentration criteria is all that is required. As the Secretary points
out in his amicus curiae brief, 11 Part 90 allows an operator to respond
with flexibility to a miner's request to work in a less dusty area. 11 S.
Br. 8. Not only may the operator offer the Part 90 miner transfer to a
range of qualifying positions within less dusty areas (30 C.F.R. §
90.102), but also may elect to maintain or bring the miner's existing
work area into compliance with the applicable Part 90 dust standards (30
C.F.R. §§ 90.100 & 90.101). 45 Fed. Reg. 80,760-761 (December 5,
1980)(Secretary 1 s official commentary on final Part 90 regulations).
The pertinent legislative and regulatory histories make clear that
the fundamental purpose of these transfer provisions is the protection
of miners 1 health -- not the distribution of specific jobs. Thus, in
originally enacting as part of the 1969 Coal Act the provision that
became section 203(b) of the Mine Act, a key House report states: "The
committee considers this section ... equal in importance to the dust
control section for decreasing the incidence and development of
pneumoconiosis. 11 H. Rep. No. 563, 91st Cong,, 1st Sess. 20 (1969),
reprinted in Senate Subcommittee on Labor, Committee on Labor and Public
'Jelfare, 94th Cong., 1st Sess., Part I Legislative History of the
Federal Coal Mine Health and Safety Act of 1969, at 1050 (1975); see
also Id. at 1071-72, 1199 & 1551. The legislative history of the Mine
Act again reveals that the congressional emphasis is on decreasing the
incidence of pneumoconiosis. S. Rep. No. 181, 95th Cong., 1st Sess. 2223 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 610-11 (1978); see also Id. at 1320.
Moreover, the Secretary's official comments concerning the final
Part 90 standards adopted by him expressly indicate that while a Part 90
miner is entitled to an opportunity to remove himself from potentially

897

harmful concentrations of respirable dust, a mine operator retains 11 a
margin of latitude" and "some flexibility" in the placement of a Part 90
miner, particularly in view of "unforeseen situations and unexpected
mine and market conditions." 45 Fed. Reg. at 80,765-66. Thus, while an
operator is required to provide a miner exercising his Part 90 option
with a job that meets the applicable dust concentration limit, the
operator retains an important measure of discretion to choose the
specific job that is offered, provided the job meets the criteria
specified in Part 90 regarding the mine involved, the shift or shift
rotation, and the rate of pay. To the extent that the judge interpreted
the Secretary's official comments as supporting a conclusion to the
contrary (7 FMSHRC at 1838-39), the judge erred. ZI
We also note the explanatory construction of the Part 90
regulations provided us by the Secretary on review:
The intent of Part 90 is that the specific job
assignment of a Part 90 miner remains essentially a
management decision made by the operator • • . . In
promulgating Part 90, the Secretary did not intend
that an operator be required to give an eligible
miner a specific job, but instead that the operator
be obliged only to give him the opportunity to work
in low dust concentrations. Any. other interpretation of Part 90 destroys the flexibility the
regulation is intended to provide. For example, it
would be pointless for the standard to give an
operator the option of bringing the dust level on
the miner's present job into compliance with the
standard if the miner nevertheless could require the
·operator to transfer him to a different specific job
of his own choosing.
So Bro 8-9.,

In sum, we find nothing in the language, purpose or history of the
Mine Act or of Part 90 that grants Part 90 miners the right to secure
specific jobs thab they desire. Here, Mullins attempted to exercise his
Part 90 transfer option by seeking only the specific job of dispatcher.
(As noted, Mullins 1 transfer request to Beth-Elkhorn stated: "If I
cannot obtain this job as a dispatcher. then I do not wish to reexercise my rights as a Part 90 miner. 11 ) Mullins, of course, had the

II

In his Federal Register comments the Secretary rejected a
reconnnendation that Part 90 miners be assigned only to vacant existing
job to avoid 11 bumping" non-Part 90 miners from their jobs. 45 Fed. Reg.
at 80,766. We read the Secretary's statement that 11 there will be
occasions where an operator will assign a Part 90 miner to a position
currently held by a non-Part 90 miner" not as an indication that a Part
90 miner is entitled to a particular job over a miner with more
seniority, but rather as recognition that in the exercise of the
operator's perogative of offering Part 90 miners qualifying jobs, such
"bumps" may be inevitable.

898

general right to re-exercise his Part 90 transfer option. To the extent
that he sought Part 90 transfer to a particular position, however, his
goal was outside the rights afforded by the Mine Act.
From the standpoint of Beth-Elkhorn 1 s Part 90 obligations, it
follows that the operator did not violate the Mine Act by failing to
retain Mullins in the dispatcher's job. Beth-Elkhorn 1 s only duty was to
offer Mullins a position.that satisfied the Part 90 criteria. The
operator fulfilled its responsibilities by offering him the repairman's
job -- a position at the same mine, on the same shift, at no loss in
pay, and in a low dust area of the mine. 30 C.F.R. §§ 90.100 & 90.102.
Nor is there any evidence in the record that Beth-Elkhorn's
actions otherwise were tainted in any part by an intent to discriminate
against Mullins or interfere with his exercise of any legitimate
protected activity. Prior to the dispute over the dispatcher's job,
Beth-Elkhorn and Mullins had reached a mutually acceptable accommodation
concerning Mullins' work as an electrician. Beth-Elkhorn initially
awarded the dispatcher's job to Mullins pursuant to the superseniority
provision of Article XVII(i)(lO) of the Agreement. The UMWA sought
Mullins' removal from that position pursuant to the grievance and
arbitration procedures of the Agreement. We cannot conclude that either
the UMWA, in pursuing a grievance over Mullins' initial placement in the
dispatcher's position, or Beth-Elkhorn, in ~emoving Mullins from the job
pursuant to the arbitration award, violated the Mine Act.
As independent grounds for declaring Mullins' removal unlawful,
however, the judge determined that Article XVII(i)(lO) of the Agreement
and the grievance arbitration proceedings taken in this matter amounted
to invalid restrictions upon Mullins' Part 90 and Mine Act rights. We
hold that the judge erred and exceeded the limits of his authority in so
ruling.
The Mine Act is not an employment statute; the Commission does not
sit as a super grievance or arbitration board. When required to do so
for purposes of resolving issues arising under the Mine Act, we must
interpret the meaning and application of parties' bargaining agreements
with appropriate restraint. As .the Commission has stated: "It is true
that we do not decide cases in a manner which permits parties 1 private
agreements to overcome mandatory safety requirements or miners'
protected rights; nor do we unnecessarily thrust ourselves into
resolution of labor or collective bargaining disputes." Loe. U. No.
781. Dist. 17 2 UMWA v. Eastern Assoc. Coal Corp., 3 FMSHRC 1175, 1179
(May 1981). See also United Mine Workers of America on behalf of James
Rowe, et al. :;:-P~dy Coal Co., 7 FMSHRC 1357, 1364 (September 1985),
pet. for review filed, No. 85-1717 (D.C. Cir. October 30, 1985).
The wisdom or fairness of Article XVII(i)(lO) is not the Commission's concern. Nor does the Commission's role include assessing
whether the arbitrator's construction of that provision represents sound
or unsound collective bargaining law. Also, there being no Part 90
right to secure particular positions, the superseniority effect of the
Article in question may, in fact, operate to grant some Part 90 miners

899

more rights than conferred by Part 90 and the Mine Act. The Mine Act
does not bar operators and unions from agreeing to give Part 90 miners
placement rights more generous than those provided by statute and
regulation. See,!:..:...&·• Franks v. Bowman Transportation Co., 424 U.S.
747, 778-79 (1976); Moteles v. Univ. of Penn., 730 F.2d 913, 921 (3d
Cir.), cert. denied, 469 U.S. 855 (1984); Tangren v. Wackenhut Services,
Inc., 658 F.2d 705, 70l (9th Cir. 1981), cert. denied, 456 U.S. 916
(1982). Further, the complained-of distinction in Article XVII(i)(lO)
between production and non-production P~rt 90 miners is a seniority
matter negotiated between the contracting parties and was drawn in a
context of providing an elevated level of rights to Part 90 miners.
Such contractual distinctions, above the statutory/regulatory "floor,"
do not violate the Mine Act or Part 90. In short, Mullins pad no Part
90 claim to the dispatcher's job; his initial award of the job, pursuant
to the superseniority provisions of the Agreement, went beyond any
entitlement under Part 90; and his removal from that job pursuant to the
same Agreement and proposed transfer to another Part 90-qualifying
position did not violate any of his Part 90 rights.
Accordingly, we conclude that Mullins did not engage in protected
activity in seeking the dispatcher's job, and neither the Union nor
Beth-Elkhorn violated section lOS(c) of the Mine Act in connection with
his removal from that position. ~/
III.

Finally, we briefly address the judge's holding that for purposes
of this proceeding the UMWA is an "operator" under the Miti.e Act subject
to a civil penalty for the violation of section lOS(c)(l). 9/ Section
3(d) of the Act, 30 U.S.C. § 802(d), defines "operator" as iiany owner,
lessee, or other person who operates, controls, or supervises a coal or
other mine or any independent contractor performing services or ·
construction at such mine. 11 The judge noted that Article lA of the
Agreement provides that Beth-Elkhorn may not contract out certain types
of mine construction or extraction jobs 1'unless all [UMWA] employees
with necessary skills to perform the work are working no less than 5
days per week." 7 FMSHRC at 1843. The judge concluded that 11 by
restricting [Beth-Elkhorn 1 s} right to contract out construction and
other work at the mine, [the UMWA] makes itself an 1 independent
contractor performing services at the mine' and makes [itself] an
1
operator 1 within the meaning of section 3 ( d) of the Act. 11 7 FMSHRC at
1843. We disagree.

~/

During the course of this proceeding, the Union sought and the
judge denied his disqualification or recusal. 7 FMSHRC at 1897. The
UMWA sought review of the judge's ruling but at oral argument advised
the Commission that it had abandoned the recusal issue. Tr. Oral Arg.
13-14. We therefore do not address that issue.
9/
Section llO(a) of the Act states that "[t]he operator of a
;ine 11 in which a violation of the Act occurs shall be subject to a civil
penalty. 30 U.S.C. § 820(a).

900

Without deciding whether a union may ever be an 11 operator 11 under
the Mine Act, we conclude that on the facts presented here the UMWA is
not an "independent contractor performing services or construction."
The Union did not itself "contract to perform services or construction
at [the] mine. 11• See 30 C. F. R. § 45. 2 ( c). Of equal importance, under
the Agreement the power of the UMWA to restrict Beth-Elkhorn's right to
contract out construction and other work at the mine is far removed from
the kind of participat1on in the running of the contracted activity or
service that could support a finding under the Mine Act of independent
contractor status. See,~., Old Dominion Power Company v. Donovan,
772 F.2d 91, 96 (4th Cir. 1985); National Industrial Sand Ass'n. v.
Marshall, 601 F.2d 689, 701 (3d. Cir.· 1979). We vacate the judge's
finding that the UMWA is an "operator" under the Mine Ai:t.

IV.
For the foregoing reqsons, the judge's decision is reversed and
Mullins' complaint of discrimination is dismissed. 10/

10/
Chairman Ford did not participate in the consideration or
disposition of this case.

901

Distribution
Ron E. Meisburg, Esq.
Michael T. Heenan, Esq.
Smith, Heenan & Althen
1110 Vermont Avenue, N.W.
Washington, D.C. 20005
(for Beth-Elkhorn)
Gregory Ward, Esq.
P.O. Box 2068
Pikeville, Kentucky 41501
(for UMWA, District 30)
Earl R. Pfeffer, Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
(for International UMWA)
Mary Bruce Carter, Esq.
25 Fleener Building
P.O. Box 87
Hartford, Kentucky 42347
(.for Jimmy Mullins)
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
(for Secretary of Labor)

902

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

May 29, 1987
JIM WALTER RESOURCES, INC.
Docket No. SE 85-36-R

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 85-62
Docket No. SE 85-109
Docket No. SE 85-123
Docket No. SE 85-124

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

JIM WALTER RESOURCES, INC.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 86-83

v.
JIM WALTER RESOURCES, INC.

BEFORE:

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

DECISION
BY THE COMMISSION:
In these consolidated contest and civil penalty proceedings
arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1982)(the "Mine Act 11 ) , the issue is whether Jim Walter
Resources, Inc. ("Jim Walter") violated 30 C.F.R. § 75.316 by failing to
comply with its approved methane and dust control plan by not maintaining line brattice to within 10 feet of "all faces. 11 1/ Commission

l/

30 C.F.R. § 75.316, a mandatory safety standard for underground
coal mines, repeats § 303(0) of the Mine Act, 30 U.S.C. § 863(0).
903

Administrative Law Judge George Koutras held in Docket No. SE 85-36-R,
etc. that the Secretary of Labor ("Secretary") did not establish a
violation. 8 FMSHRC 568 (April 1986)(ALJ). ~/ In Docket No. SE 86-83
Connnission Administrative Law Judge James Broderick concluded that a
violation was established and assessed a civil penalty of $750. 11
9 FMSHRC 109 (January 1987)(ALJ). We granted petitions for
discretionary review of both decisions. We consolidated the cases on
review and heard oral argument. For the reasons that follow, we affirm
Judge Koutras• decision and reverse Judge Broderick's.
I.

The antecedents of these controversies arose in 1972 when a
methane ignition occurred at Jim Walter's No. 3 mine. The mine is
located in Tuscaloosa County, Alabama, and has a history of high methane
liberation. At the time of the methane ignition, the No. 3 mine 1 s
approved ventilation plan required that line brattice be maintained to
within 10 feet of all working faces while. coal was being cut and loaded.
After mining of the face ceased, the line brattice was taken down and
cleanup operations in the face area were conducted. A continuous mining
machine being used during the cleanup caused a methane ignition.
Following the ignition, Jim Walter was cited by the Secretary of
Interior's Mining Enforcement and Safety Administration ("MESA") for a
Section 75.316 provides in part:
A ventilation system and methane and dust control
plan and revisions thereof suitable to the conditions and the mining system of the coal mine and
approved by the Secretary shall be adopted by the
operator .•.. The plan shall show the type and
location of mechanical ventilation equipment
installed and operated in the mine, such additional·
or improved equipment as the Secretary may require,
the quantity and velocity of air reaching each
working face, and such other information as the
Secretary may require. Such plan shall be reviewed
by the operator and the Secretary at least every 6
months.
~/

Docket No. SE 85-36-R is a contest proceeding filed by Jim Walter
challenging a withdrawal order. Docket Nos. SE 85-62, SE 85-109, SE 85123, and SE 85-124 are penalty proceeding~ initiated by the Secretary.
Docket No. SE 85-124 was inadvertently omitted from Jim Walter's
petition for discretionary review. The parties agree that it should
have been included, and consequently, we deem it before us on review.
In Docket No. SE 85-124, Judge Koutras also found a violation of the
permissibility standard, 30 C.F.R. § 75.503. This violation is not
before us on review.

}/
In addition, Judge Broderick found a second violation of section
75.316 in that Jim Walter allowed methane on a longwall section to
exceed the maximum permissible limit. This violation is not before us
on review.

904

violation of section 75.316, but the proceeding was dismissed after it
was determined that coal was not being mined at a "working face 11 when
the ignition occurred, and that the cited provision in the ventilation
plan therefore was inapplicable. MESA thereafter concluded that the
ventilation plan~ at certain of Jim Walter's mines should be revised to
require that line brattice be maintained to within 10 feet of "the area
of deepest penetration of all faces in all working places inby the last
open crosscut" (the "all faces provision"), rather than just working
faces.: f:!../
Accordingly, in 1973 Jim Walter submitted to the appropriate MESA
district manager for his review and approval a ventilation plan for the
No. 7 mine, which also is located in Tuscaloosa County and also has a
history of high methane liberation. As submitted by Jim'Walter, the
plan applicable to the No. 7 mine contained a provision that line
brattice be maintained to within 10 feet of all working faces. The MESA
district manager sent Jim Wa~ter a letter that approved the plan with
the proviso that line brattice be maintained to within 10 feet of "all
faces," as stated above. Between 1973 and 1984, each time the
ventilation plan for the No. 7 mine was reviewed at six-month intervals,
as required by statute and the Secretary's regulation, Jim Walter
submitted a plan that required line brattice to be maintained to within
10 feet of all working faces and the MESA (and MSHA) district manager
responded with a letter stating that the plan was approved provided that
line brattice "be maintained to within ''.lo feet •.• of all faces."
Apparently, between 1973 and November 13, 1984, no citations were
issued either by MESA or MSHA alleging a violation of the all faces
provision at Jim Walter's mines. On November 13, 1984, however, an MSHA
inspector issued the first citation alleging such a violation at Jim
Walter's No. 4 mine, also in Tuscaloosa County. Jim Walter asserted
that there was no violation because mining had ceased at the face and
would not be resumed for several days, and it was not required by the
plan to maintain line brattice within 10 feet of idle faces. Following
an evidentiary hearing, Judge Broderick ruled against Jim Walter and
found that the area at issue was a face within the meaning of the all
faces provision. Jim Walter Resources, Inc., 7 FMSHRC 1471 (September
1985)(ALJ). ?._/
MESA administered the Federal Coal Mine Health and Safety Act of
1969, 30 U.S.C. § 801 et seg. (1976)(amended 1977), the predecessor of
the Mine Act. When the Mine Act became effective in 1977, enforcement
jurisdiction transferred from the Secretary of the Interior to the
Secretary of Labor and MESA was replaced by the Mine Safety and Health
Administration ( 11 MSHA").

21

Jim Walter did not seek Commission review of this decision. The
parties stipulated that the issue in Docket Nos. SE 85-36-R, etc. is
identical to the issue in the case involving the November 13, 1984
citation. The Secretary argues that Judge Koutras erred in not finding
Jim Walter collaterally estopped from relitigating the issue. We reject
this contention. The Secretary did not argue collateral estoppal below,
nor has he shown any cause for failure to do so. The Mine Act and

905

II. Docket No. SE 85-36-R, etc. £/
On April 8, 1985, MSHA Inspector Judy McCormick inspected the No.
7 mine. In the No. 13 section of the mine, Inspector McCormick found
that a crosscut had been driven to the left for 24 feet off the No. 2
entry toward the No. 1 entry. Prior to driving the crosscut, the
continuous mining machine had advanced the No. 2 entry a distance of 8
feet inby, creating an 8 foot extension of the No. 2 entry inby the
crosscut (location Yon Exh. G-3). Line brattice was not maintained to
within 10 feet of location Y. However, line brattice was maintained to
within 10 feet of the end of the crosscut (location X on Exh. G-3).
Inspector McCormick believed that under the all faces provision both
location X and location Y were faces within 10 feet of which line
brattice had to be maintained. Therefore, Inspector McCormick issued a
withdrawal order alleging a violation of section 75.316. Jim Walter
abated the alleged violation by installing line brattice to within 10
feet of location Y.
Jim Walter contested the validity of the withdrawal order
asserting that under its approved ventilation plan line brattice was not
required at location Y. For a variety of reasons, Judge Koutras agreed.
In his decision, Judge Koutras noted that section 75.316 requires that
the plan approved by the Secretary and adopted by the operator be
suitable to the mine. The judge found _the·all faces provision not
suitable to the No. 7 mine in that its implementation would result in
added hazards. 8 FMSHRC at 593. The judge also found that the
Secretary did not present credible evidence to establish. reasons why the
provision was required, that it was inconsistent with other mandatory
safety standards, and that it was discriminatory. Id. at 588, 593-594.
Finally, the judge criticized the manner in which MSHA attempted to
impose the requirement through the use of a "proviso" inserted in
successive letters approving Jim Walter's plans. Id. at 592-593. The
judge vacated the withdrawal order and dismissed the civil penalty proceedings.
. at 594,
Because we conclude that the Secretary did not prove a violation
of section 75.316, we agree with the result reached by the judge. Our
conclusion, however, is premised upon a different and more limited
basis, We find that the disputed language of the plan provision is
ambiguous. We further find that the Secretary 1 s evidence does not
dispel the ambiguity and does not establish that the cited condition
violated the prov1sion at issue.
Ventilation plans are approved by the Secretary and adopted by
Commission Procedural Rule 70(d) bar, except for good cause shown, an
assignment of legal error upon which the judge had no opportunity to
pass. 30 U.S.C. § 823(d)(2)(iii); 29 C.F.R. § 2700.70(d). Wilmot
Mining Co., Docket No. LAKE 85-47, 9 FMSHRC ~(April 30, 1987), slip
op. at 3.

21

The parties stipulated that this part of the consolidated
proceeding would be determined on the basis of the facts in Docket No.
SE 85-109.

906

mine operators pursuant to section 75.316 and section 303(0) of the Mine
Act. The approval and adoption process is bilateral and results in the
Secretary and the operator, through consultation, discussion, and
negotiation, mutually agreeing to ventilation plans suitable to the
specific conditions at particular mines. Zeigler v. Kleppe, 536 F.2d
398, 406-407 (D.C. Cir. 1976); Carbon County Coal Co., 6 FMSHRC 1123
(May 1984). The process is flexible, contemplates negotiation toward
complete agreement, and is aimed at compliance with mine safety and
health requirements. Under the approval and adoption process, the
operator submits a plan to the Secretary who may approve it or suggest
changes. The operator is not bound to acquiesce in the Secretary's
suggested changes. The operator and the Secretary are bound, however,
to negotiate in good faith over disputes as to the plan's provisions and
if they remain at odds they may seek resolution of their disputes in
enforcement proceedings before the Commission. Carbon County Coal
Company, 7 FMSHRC 1367, 1370-71 (September 1985); Penn Allegh Coal Co.,
3 FMSHRC 2767, 2771 (December 1981). The ultimate goal of the approval
and adoption process is a mine-specific plan with provisions understood
by both the Secretary and the operator and with which they are in full
accord. Once the plan is approved and adopted, these provisions are
enforceable at the mine as mandatory safety standards. Zeigler, supra
at 409; Carbon County, 7 FMSHRC at 1370; Penn Allegh.
In an enforcement action before the Gommission, the Secretary
bears the burden of proving any alleged violation. In plan violation
cases the Secretary must establish that the provision allegedly violated
is part of the approved and adopted plan and that the cited condition or
practice violates the provision. Here, Jim Walter argues in part that
the all faces provision was not a part of the approved and adopted plan
at the No. 7 mine. We do not reach this question, however, because,
even assuming the provision is considered a part of the approved and
adopted plan, in the instant case the Secretary did not prove that the
failure to provide line brattice to within 10 feet of the cited location
(location Y) violated the all faces provision.
In Penn Allegh, the Commission held:
The statute and the standard require the parties
to agree on a dust control plan in the interest of
miner safety. Therefore, after a plan has been
implemented (having gone through the adoption/
approval process) it should not be presumed lightly
that terms ir, the plan do not have an agreed upon
meaning.
3 FMSHRC at 2770. The provision in that case was ambiguous on its face
but the Secretary established the meaning intended by the parties by
presenting credible evidence as to the history and purpose of the
provision and evidence of consistent enforcement. The Secretary's
evidence in the instant case falls far short in these respects.
First, the record contains no detailed and consistent testimony
from the Secretary's witnesses illuminating the meaning of the all faces
provision. Indeed, the testimony of two of the Secretary's witnesses is

907

at odds regarding the meaning of the term "all faces. 11 Inspector
McCormick conceded that there is no definition of the term 11 face 11 in the
Mine Act or in the Secretary's regulations and could only "guess" that
the term "face" would be "the area from which coal is to be extracted or
is being extracted. 11 Tr. 102. MSHA's supervisory mining engineer,
William H. Meadows, disagreed with the inspector's view and stated that
the term "f ace 11 "has not been interpreted 11 to include areas where future
mining is planned and that he "would not enforce it that way." Tr. 182.
This conflicting testimony in general evidences the difficulty in
ascertaining from the record an agreed.definition of the term. Tr. 156160. Since the Secretary's own witnesses were uncertain and in disagreement as to the meaning of the all faces provision, it cannot be
presumed that Jim Walter was aware that the provision meant what the
Secretary now urges it means. Compare U.S. Steel Mining Co., 8 FMSHRC
314, 320 (March 1986)(detailed and consistent testimony of MSHA
inspector supports Secretary 1 s interpretation of plan).
Second, the Secretary presented no evidence of any prior
consistent enforcement of the "all faces" provision that might have
established that Jim Walter was on notice regarding the Secretary's
interpretation of the meaning of the provision. Compare Penn Allegh,
supra, 3 FMSHRC at 2769-70 (consistent enforcement is strong evidence of
interpretation of plan).
Third, the Secretary asserts that on April 8, 1985, there were two
faces, location X and location Y, in the No. 13 section. Yet the
Secretary admitted that the 1972 ignition incident that led to the
Secretary's inclusion of the disputed p.rovision involved only one face.
Tr. Oral Arg. 16-17. The 1972 ignition involved a failure to maintain
line brattice to within 10 feet of the most recently mined face. On
April 8, 1985, location X was the face most recently mined and all
parties agree that Jim Walter maintained line brattice within 10 feet of
location X.
For these reasons, we conclude that the Secretary did not prove a
violation of section 75.316. We therefore affirm the judge 1 s decision
insofar as it it is consistent with our discussion.
III.

Docket No. 86-83

On March 13, 1986~ MSHA Inspector Gerald N. Tuggle issued a withdrawal order to Jim Walter alleging a violation of section 75.316 at Jim
Walter 1 s No. 7 mine: ZI
[T]he continuous mining machine had mined the
crosscut in [the No. 2 entry of the No. 8 section]
to the left on the curtain (brattice line) side and
the end of the curtain terminated in excess of 10
feet from the deepest point of penetration of the
face to the straight of the .entry.

ZI
Originally the order charged a violation of 30 C.F.R. § 75.200 but
was modified subsequently to allege a violation of section 75.316.

908

The parties agree that the conditions described in the order occurred.
The Secretary alleged that in failing to maintain the line brattice to
within 10 feet "of the face to the straight of the entry," Jim Walter
violated the all faces provision.
In the subsequent civil penalty proceeding Jim Walter asserted
that it did not violate section 75.316. The essence of Jim Walter's
argument was that the end point to the straight of the No. 2 entry had
not been recently mined and that under the approved ventilation plan, it
was not required to maintain line brattice to within 10 feet of that
point. The parties stipulated that the issue of whether Jim Walter
violated the standard was identical to the issue pending before the
Commission in Docket Nos. SE 85-36-R, etc., and that the Commission's
decision in those cases would be controlling. Stipulation 1 and 4. See
also Tr. 4-5. Accordingly, because the judge's decision in this docket
was based on a rationale at odds with our disposition set forth above,
we reverse his decision and v~cate the withdrawal order.

IV.
In deciding these cases, we decline to attempt on the present
records to determine an all-encompassing definition of the term "face. 11
We also do not address whether the ventilation plans at the subject
mines should include the additional measur~ urged by the Secretary. The
Act and the mandatory standard require the Secretary and the operator to
agree upon a ventilation plan. It is of paramount importance under the
statute that both the Secretary and the operator proceed diligently and
in good faith to develop a conclusive and suitable plan containing
provisions clearly understood by both. Thus, if MSHA continues to
believe that the all faces provision is necessary to miner safety and
suitable to Jim Walter's mines, it should seek to reach agreement with
Jim Walter on the provision through proper implementation of the
ventilation plan approval and adoption process. In this regard, we note
the parties strongly disagree as to whether the all faces provision was
ever conclusively incorporated into the ventilation plan. The record
indicates that for thirteen years Jim Walter submitted plans for
approval without the all faces provision and that MESA, and then MSHA,
approved the plans by letters that included the all faces provision. It
serves neither the safety of the miners nor the policy of the Mine Act
when the Secretary and an operator are unable to reach firm agreement on
the meaning of a mine plan provision even after several years of dealing
with that provision. Given the importance Congress attached to mine
specific plan3, we emphasize that it is incumbent upon the parties to
adopt a more effective mechanism to ensure that mine plans are
expeditiously, unambiguously and conclusively approved and adopted.
Accordingly, the judge 1 s decision in Docket Nos. SE 85-36-R, etc.,
vacating the Secretary 1 s citations, dismissing MSHA's civil penalty

909

proposals, and granting :::n Walter's contest is affirmed. The decision
in Docket No. SE 86-83, =~~ding a violation of the all faces
provision, is reversed, :::::d the subject order of withdrawal and civil
penalty are vacated.

Joyce A. Doyle, Commissioner

am~s A.. , Lasto~a,
Commissioner

ddl

~~/y
•

l

;

'

e_(.«i.A}--p\../

L: Clair Nelson, Commissioner

910

Distribution

H. Thomas Wells, Jr., Esq.
David M. Smith, Esq.
Maynard, Cooper, Frierson & Gale, P.C.
Twelfth Floor Watts Building
Birmingham, Alabama 35203
Stanley Morrow, Esq.
Harold Rice, Esq.
Jim Walter Resources, Inc.
P.O. Box C-79.
Birmingham, Alabama 35283
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wils.on Blvd.
Arlington, VA 22203
Administrative Law Judge George Koutras
Administrative Law Judge James Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

911

912

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

May 1, 1987

SECRETARY OF LABOR,
MINE SAFETY ANO HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 86-68
A. C. No. 33-00942-03515
Lafferty Strip & Tipples

v•

OHIO RIVER COLLIERIES,
Respondent
AMENDED DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

The Decision Approving Settlement previously issued for the
above-captioned case is hereby reopened due to a clerical error
pursuant to Commission rule 65(c). 29 C.F.R. § 2700.65(c).
The originally assessed amounts were $1,000 and the proposed
settlements are for $690. The Solicitor's motion discusses each
violation in detail and justifies the proposed settlements in
accordance with the six statutory criteria set forth in section
llO(i) of the Act.
Accordingly, the recommended settlements are Approved and
the operator is ORDERED TO PAY $690 within 30 days of the date of
this decisiona

Paul Merlin
Chief Administrative Law Judge
Distr·ibution:
Patrick M. Zohn, Esq., Office of the Solicitor, U. S. Department
of Labor, 881 Federal Building, 1240 East ~inth Street, Cleveland, OH 44199 (Certified Mail)
Robert H. Gentile, Chief Executive Officer, Box 128, Bannock, OH
43972 (Certified Mail)
Mr. Gene Angelo, The Ohio River Collieries Company, Director of
Personnel and Safety, Box 128, Bannock, OH 43972 (Certified
Mai l )
I gl
913

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE 'OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 5 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 87-52
A.C. No. 15-09926-03507

v.
Docket No. KENT 87-53
A.C. No. 15-09926-03508

GRATESIDE COALS, INC.,
Respondent

Grateside No. 3 Surface
ORDER OF DEFAULT
Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals 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). Docket No. KENT 87-52,
concerns the petitioner's proposals for assessment of civil
penalties in the amount of $1,972, for 20 section 104(a) citations alleging violations of various mandatory
ety standards
found in Parts 48 and 77r Title 30, Code of Federal Regulations.
Docket No. KENT 87-53, concerns proposals of assessment of civil
penalties in the amount of $472, for five section 104(a) citations alleging violations of certain mandatory safety standards
found in Part 77, Title 30, Code of Federal Regulations.
The petitioner has certified that its civil penalty proposals were mai
to respondent's counsel of record on
February 27, 1987, and a copy of a letter to counsel from the
petitioner's Nashvil~e, Tennessee Solicitor's Office reflects
that counsel was advised that she had 30 days to file answers
pursuant to Commission Rule 28, 29 C.F.R. § 2700.28.
Counsel
was also advised that the failure to file answers within the
30-day period could result in the proposed assessments being
entered as the final orders of the Commission as provided by
procedural Rule 63, 29,C.F.R. § 2700.63. As of ·this date, no
answers have been filed.

914

In view of the respondent's failure to fi
answers to the
petitioner's civil penalty proposals, I is
an Order to Show
Cause on
il 10, 1987, ordering the respondent to state within
10 days why it should not be held in
ault
its failure to
file answers in these proceedings. The certified mail postal
rece
received from the Post Off ice Department reflects that
counsel for the respondent received my Order on April 16, 1987.
However, counsel has not responded.
Discussion
29 C.F.R.

§

2700.39, provides as

lows:

A party against whom a pena
is sought shall
serve an.answer within 30
after
of a copy of the proposal on the party. An
answer shall include a short and plain statement of
the reasons why each of the violations cited in the
is contested, including a statement as to
a violation occurred and whether a hearing
29 C.F.R.

§

2700.63, provides as fol

(a)
Generally. When a party f
ls to comply
with an order of a judge or these rules, an order
to show cause shall be directed to the party before
the
of any order of default or
smissal.
Penalty proceedings. When the Judge
respondent in default
a c il penalty
, the Judge shall also enter a summary
order asses
the proposed
s as final,
and
ting that such penalties be
The respondent in these proceedings has
led to file
to the petitioneres civil penalty
sals, and it has
led to respond to my Order to Show Cause. Under the
s, I conclude and find that the respondent is in
default
waived its right to a hear
I see no reason
1
why the
s proposed civ
assessments should
not be made the final order of the Commiss

915

ORDER
Judgement by default is herewith entered in favor of the
petitioner, and the respondent IS ORDERED TO IMMEDIATELY PAY to
the petitioner the sum of $2,444, as the final civil penalty
assessments for the citations in question.

~~cf;~
Administrative Law Judge

Distribution:
G. Elaine Smith, Esq.,
ice of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Vanessa Berge, Esq. , Wyatt, Tarrant & Combs, ~1cClure Building,
P.O. Box 495, Frankfort, KY 40601 (Certified Mail)

/fb

916

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 5 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 86-38-M
A.C. No. 33-03990-05507
Jonathan Limestone Mine

COLUMBIA PORTLAND CEMENT
COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding filed by the petitioner
against the respondent pursuant to section llO(a) of the Federal
Mine Sa
and Health Act of 1977, 30 U.S.C. § 820(a), seeking
a civil penalty assessment in the amount of $2,000 for an alleged
violation of mandatory safety standard 30 C.F.R. § 56.12-16, as
stated in a section 104(a) Citation No. 2518303, issued at the
mine on Ju
29, 1985.
The respondent filed a timely answer and contest, and the
case was scheduled for
ing in Zanesville, Ohio, an May 6,
1987. However, the petitioner has filed a motion pursuant to
Commission Rule 30, 29 C.F.R. § 2700.30, seek
approval of a
settlement of the case. The proposed settlement agreement
requires the re
to pay a civil
assessment in
the amount of $1,000
for the vio
ion in question.
0
Discussion
In support of the proposed settlement disposition of this
case, the petitioner has submitted information pertaining to
the six statu
civil penalty criteria found in section llO(i)
of the Act.
In addition, the
itioner has submitted a full
discussion and disclosure as to the facts and circumstances
surrounding the issuance of the citation in question, and a
reasonable justification for the reduction of the original
proposed civil penal
assessment.

917

The citation in this case was issued after an MSHA
investigation into an accident which occurred on July 27, 1985,
which resulted in serious disabling injuries to an electrician
when he entered a kiln precipitator hopper with the feed-out
screw conveyor running and was caught in the screw. The electrician's right leg was severed below the knee. The electrical
power switch for the screw conveyor had not been deenergized or
locked out. The cited standard, 30 C.F.R. § 56.12-16, requires
that electricially powered
ipment be deenergized before
mechanical work is done on such equipment.
Petitioner states that the orig
1 civil penalty assessment
amount was based on a "special assessment'' made in accordance
with 30 C.F.R. § 100.5, due to the occurrence of the serious
nonfatal accident. However, petitioner asserts that there are
mitigating circumstances which justify a reduction in the original penalty amount.
In this regard, petitioner states that the
electr ian had not started the mechanical work when the accident
occurred and that he was accidently knocked into the hopper and
into the moving screw conveyor.
electrician did not intend
to enter the precipitator at the time of th~ accident as his belt,
tools and radio had been left outside and he had only intended
to check the dust
to the hopper at the time of the accident.
Petitioner asserts that
employee in question was an
experienced electrician who had received training from the
respondent on lock out procedures, and that the respondent had
a
story of training employees on such procedures. Petitioner
also points out that the electr ian's foreman had given him
instructions and warned him to lock out the screw conveyor before
entering the prec itator. Further 7 petitioner states that the
mine is a small operation, and that during the 24~months preceding the issuance of the citation 7 the respondent had received
two assessed v lations.
Conclusion
After careful rev
and cons
of the pleadings,
arguments, and submissions in support of the motion to approve
the proposed settlement of this case. I conclude and find that
the proposed settlement disposition is reasonable and in the
publ
interest. Accordingly, pursuant to 29 C.F.R. § 2700.30,
the motion IS GRJ\NTED, and the settlement IS APPROVED.
.
ORDER
Respondent IS ORDERED to
of $1,000 in satisfaction of

918

a c
1 penalty
the amount
citation
question within

thirty (30) days of the date of this decision and order, and
upon receipt of payment by the petitioner, this proceeding is
dismissed.

h.tf~

Administrative Law Judge

Distribution:
Marcella L. Thompson, Esq., Office
the Solie
, U.S.
Department
Labor, 881 Federal Building, 1240 East Ninth
Street, Cleveland, OH 44199 (Certified Mail)
John c. Ross, Esq., Ross·& Robertson,
200, Renaissance
Centre, 4580 Stephen Circle N.W., Canton, OH 44718-3628
(Cer fied Mail)
/fb

919

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

May 6, 1987

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. CENT 87-2-M
A. C. No. 29-00159-05516

Tyrone Mine

v•

~Mill

PHELPS DODGE CORPORATIONTYRONE BRANCH,
Respondent
DISAPPROVAL OF SETTLEMENT
NOTICE OF HEARING
Before:

Judge Merlin

The parties have filed a motion to approve a settlement for
the one violation in this case. The proposed settlement is for
the original assessed amount of $192. One man was killed and
another seriously injured as a result of the accident which was
the subject of the citation. Based upon the present record, the
proposed settlement cannot be approved.
The Commission and its Judges bear a heavy responsibility in
settlement cases pursuant to section llO(k) of the Act which
provides~

(k) No proposed penalty which has been
contested before the Commission under section 105(a) shall be compromised~ mitigated,
or settled except with the approval of the
Commission. * * *
See S. Rep. ~o. 95-181, 95th Cong., 1st Sess. 41-5 (1977),
re rinted in Senate Subcommittee on Labor, Committee on Human
esources,-g5th Cong., 2d Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 632-633 (1978).
Penalty proceedings before the Commission· are de nova.
Neither the Commission nor its Judges are bound by The ecretary1s proposed penalties. Rather, they must determine the appropriate amount of penalty, if any, in accordance with the six

920

criteria set forth in section llO(i) of the Act. Sellersburg
Stone v. Federal Mine Safety and Health Review Commission, 736
F.2d 1147 (7th Cir. 1984).
The Commission has recently reaffirmed the authority of its
Judges to review and, where necessary, disapprove settlements,
stating:

* * * Settlement of contested issues and
Commission oversight of that process are
integral parts of dispute resolution under
the Mine Act. 30 U.S.C. § 820(k); see
Pontiki Coal Corp., 8 FMSHRC 668, 674(May
1986). The Commission has held repeatedly
that if a judge disagrees with a penalty
proposed in a settlement he is free to reject the settlement and direct the matter
for hearing. See,~., Knox County Stone
Co., 3 FMSHRC 2478, 2480-81 (November 1981).
X-judge 1 s oversight of the settlement process "is an adjudicative function that necessarily involves wide discretion." Knox
County, 3 FMSHRC at 2479.
*

*

*

*

*

Secretary of Labor v. Wilmot Mining Company, Docket Number
LAKE 85-47, slip op. at 3, 8 FMSHRC
at
(April 30, 1987).
The Commission further explained:
'"
* we believe that [the] better practice requires that if a judge rejects a written settlement proposal he issue an orde~ to
that effect. Specifying the reasons for the
rejection might sharpen the issues for trial
and even possibly encourage an acceptable
settlement proposal.
1
'

Id. at

9

Footn~te

1.

The subject Citation 9 No. 2662005, dated January 6 9 1985
describes the condition as follows:
Two employees of an independent contractor
were seriously injured on November 25, 1985,
and one died on December 19, 1985, when a
bundle of three, 12 inch by 45 feet long pipe
that were banded together slid from a stack
and pinned the victims between pipe on the
ground they were attempting to put a choker

921

on, and the falling bundle, The pipe had
been stacked about one week prior to the accident by an employee of the production-operator in a manner that contributed to a fall of
material hazard in that the south stack of
five bundles of pipe had three pipe in the
bottom bundle, three pipe in the next bundle
and four pipe in the top three bundles, resulting in a total height of approximately
5-1/2 feet. The top bundle of four pipe in
the south stack apparently slid to the north
and pushed the three pipe off the north pile
onto the victims,
The mandatory standard is 30 C.F,R, § 56.16001 which
requires that:
Supplies shall not be stacked or
stored in a manner which creates
tripping or fall-of-material hazards.
The file also contains the MSHA Accident Investigation Report which sets forth, inter alia, these facts: Phelps Dodge
Corporation contracted with Hamilton Western Construction Company, Inc., to install a 6,000-foot.-long 12-inch dewatering pipeline. This arrangement required that Hamilton Western lay the
pipeline in accordance with a provided design while Phelps Dodge
was to provide, among other items, the plastic pipe specified.
Phelps Dodge purchased the required pipe which was delivered to
the mine-site by common carrier, As in previous deliveries, the
pipe was received by Phelps Dodge warehousing personnel who un1 oaded the pipe with a Phelps Dodge forklift.
The pipe was unloaded and stacked at a pre-determined location ahead of the
approaching pipeline onstruction.
he pipe in question was delivered and unloaded on November 12, 1985, thirteen days before
the accident. A total of 49 pipes was delivered packaged in
seven 3-pipe and seven 4-pipe bundles, The pile nearest the pipeline contained three 4-pipe bundles overlain by two 3-pipe
bundles (north stack), Abutting this pile on the south was a
22 pipe pile consisting of two 3-pipe bundles on top of which
were stacked four 4-pipe bundles (south stack). This pile was
inherently unstable since the base bundles were 12 3/4 inches
narrower than the width of 16 pipe lengths it supported. During
preceding pipe-laying activity, pipe bundles were reportedly
stacked only 2 or 3 units high (approximately 43.5 inches). On
this occasion, however, the bundles were stacked 6-high (87
inches)~
The crew therefore, was faced with a significantly
different set of physical conditions. The pipeline construction
crew consisted of a crane operator and two laborers. They had
previously received their work assignment and proceeded to the
jobsite without their supervisor's presence. The crane operator
moved a cherry picker into hoisting position as the first laborer
readied the fusion equipment. The crane operator began cutting
922

the steel-securing bands of the top 3-pipe bundle of the south
stack nearest the crane. He cut 5 of the 6 bands and, positioning himself in the clear, cut the last band. This allowed the
3-pipes to fall to the ground on the south side of the steel service pipeline. He then obtained hoisting slings while the second
laborer positioned a dozer to drag fused lengths of pipe away
from the fusion machine. As the crane operator was attaching the
hoisting sling to the first pipe on the ground, the remaining
3-pipe bundle of the north stack ~lid to the ground landing on
top of him and pinning the second laborer's right leg against the
steel service pipeline. Apparently at the same time the top
4-pipe bundle of the south stack also slid off to the north and
across the pipe bundle lying atop the crane operatnr. Twentyfour days later the crane operator died of his injuries. The
second laborer suffered a broken leg.
The Accident Investigation Report describes the cause of the
accident in this manner:·
The direct cause of this accident was the
failure to recognize the instability of the
irregularly stacked pipe bundles.
Possibly contributing to this accident was
the fact that the crew members were not
accustomed to working with pipe piled higher
than 2 or 3 bundles. In this accident the
bundles were stacked 6-high. The light rainfall of the past night may have created even
greater pile instability; wet pTastic pipe
presents a very slippery surface.
The settlement motion suomitted by the parties states that
the pipes were stacked by the operator 1 s warehousing personnel
and states that two employees of the independent contractor
working for the operator were removing pipe when the accident
occurred. The settlement motion recognizes that according to the
citation the stacking of the pipes contributed to the hazard of
falling material.
t then sets fortn that the operator does not
agree with all the facts set forth in the citation, including an
attached drawing showing how the pipes were stacked and fell.
Nor does it agree with the finding of a violation. Nevertheless,
the parties propose that the inspector 1 s finding of low negligence be amended to no negligence for the following reasons:
(i) The supplies had been stacked for approximately two weeks without any indication
or incident of instability;

923

(ii) The employees had received adequate
training, instruction and supervision in the
conduct of their work involving the handling
of pipe bundles and had completed approximately one-half of such work required of them
at Respondent's workplace without incident;
(iii) The evidence does not indicate to
what extent the weight of the 4-pipe bundle
on the south stack caused the remaining
3-pipe bundle to fall, 'as compared to the
extent the 3-pipe bundle fell perhaps .because
of the movement generated by the removal of
the initially removed 3-pipe bundle; and
(iv) The em~loyees had experience in
handling stacks of pipes of approximately the
same height and weight.
I cannot accept the proffered settlement. Both the citation
and the investigation report identify as a cause of the accident, the manner in which the pipes were stacked. The fact that
the pipes gave no indication of instability until they were
touched, does not as the settlement motion suggests, warrant a
finding of no negligence~ or even low negligence. The motion
further asserts the employees were adequately, trained, instructed and supervised and were experienced, but does not indicate whether it is referring to the operator's employees who
stacked the pipes or the independent contractor's employees who
removed them. In any event, the investigation report states that
these particular bundles were stacked differently than preceding
ones had been and the victims were not accustomed to working with
pipes stacked so high. The motion's assertion that the evidence
does not show to what extent the stacking caused the fall as
opposed to the manner in which the pipes were removed, does not
justify this settlement. The accident could have had one cause
or multiple causes and if the latter, it is not necessary to fix
the degree of causation with mathematical certainty. Finally, no
information has been furnished regarding the liability of the
independent contractor.
In summary, therefore, the settlement motion, far from presenting matters in a posture which would support a reasoned settlement, raises many questions which must be answered at a hearing on the re(ord. Only in this way can it properly be determined whether a civil penalty should be assessed and, if so, the
proper amount.
Accordingly, it is ORDERED that this matter be set for
hearing at 9 a.m., July 1, 1987 at the United States Tax Court,

924

Federal Building, Room 235, 555 N. Central Avenue, Phoenix,
Arizona 85004. 1
It is further ORDERED that the Solicitor insure attendance
the hearing by the inspector who issued the subject citation
and the authors of the Accident Investigation Report. The
Solicitor should be prepared to elicit the circumstances of the
accident from these individuals.
~t

The operator may call whatever witnesses it wishes.
Documentary evidence may be offered.
It is further ORDERED that on or before June 12. 1987, the
parties submit a list of the witnesses they intend to call and
copies of the documentary exhibits they propose to submit.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Rebecca A. Siegel, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Thomas A. Mascolino, Esq., Counsel, Trial Litigation, Office of
the Solicitor, U. S. Department of Labor, Suite 400, 4015 Wilson
Boulevard, Arlington, VA 22203 (Certified Mail)
Ronald Whiting, Esq., Deputy Solicitor, Regional Operations,
U. S. Department of Labor, Room 2002, BCT 3, Ballston Center
Tower 3, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
'
G. Starr Rounds, Esq., 2600 North Central
8 5 0 0 4 - 3 O9 9 ( Ce r•t i f i e d Ma i l )

Avenue, Phoenix, AZ

Mr . Ri c h a r d E. Rh o a d e s , Ma n a g e r , Phe l p s, Do d g e Co r p o r a t i o n - Ty r o n e
Branch, P. 0. Drawer B, Tyrone, NM 88065 (Certified Mail)
I g1

1/

Any request for continuance will be viewed with extreme
disfavor. The case has been pending for several months.
The prehearing and hearing order was issued in January.
After the Solicitor finally advised the case was settled,
four phone calls were made to her during April in repeated
attempts to elicit the motion. When she was told the case
would be dismissed for want of prosecution, the motion
finally was submitted.
925

FEDEiAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

May 6, 1987

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. WEST 87-42-M
A. C. No. 42-00149-05502 P9N
Kennecott Mine

v.

EMKO CORPORATION,
Respondent
DISAPPROVAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
Before:

Judge Merlin

The parties have submitted a joint motion to withdraw their
pleadings in the above-captioned case which involves four
violations.
The Solicitor has moved to vacate one of the citations and
the operator has agreed to pay the original assessments of $300
each for two others. These matters appear to be in order.
The difficulty is with the fourth order. Order No. 2644520A
cites a violation of 30 C.F.R. § 56.9040(a) because two miners
had been riding in the front bucket of a Case 5800 loader and
back-hoe. This penalty was originally assessed at $300 and the
proposed settlement is for $150. The parties represent that the
50% reduction in the originally assessed amount is justified
because "negligence is less than was originally assessed. 11 No
reasons are given to support this representation. I have
therefore, no basis upon which to determine whether the
settlement recommendation is justified.
The parties are reminded that the Commission and its Judges
bear a heavy responsibility in sett 1 ement cases pursuant to section llO(k) of the Act. One of the principal reasons for the
enactment of section llO(k) was the unwarranted lowering of
penalties during the settlement process under the 1969 Act.
S. Rep. No. 95-181, 95th Cong., 1st Sess. 41-5 (1977), reprfnted
2-E_ Senate Subcommittee on Labor, Committee on Human Resources,
95th Cong., 2d Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 632-633 (1978).

926

Penalty proceedings before the Commission are de nova. The
appropriate amount of penalty must be determined in-accor ance
with the six criteria set forth in section llO(i) of the Act.
Sellersburg Stone v. Federal Mine Safety and Health Review
Commission, 736 F.2d 1147 (7th Cir. 1984).
The Commission most recently has reaffirmed the authority of
the Judges to review and, where necessary, disapprove
settlements, stating:
* * *
Settlement of contested issues and
Commission oversight of that process are
integral parts of disp~te resolution under
the Mine Act. 30 U. S. C. § 820(k); see
Pontiki Coal Corp., 8 FMSHRC 668, 674(M°ay
1986. The Commission has hel~ repeatedly
that i f a judge .di sag re es wi th a penal t y pro posed in a settlement he is free to reject
the settlement and direct the matter for hearing. See, e.g., Knox County Stone Co.,
3 FMSHRC24~2480-81 (November 1981). A
judge's oversight of the settlement process
11
is an adjudicative function that necessarily
involves wide discretion. 11 Knox County,
3 FMSHRC at 2479.

*

*

*

*

*

Secretary of Labor v. Wilmot Mining Company, Docket Nu~ber
LAKE 85-47, slip op, at 3, 8 FMSHRC
at
(April 30,
1987),

Most Solicitors routinely submit satisfactory settlement
motions, while a few do not.
In light of the foregoing 9 it is ORDERED that within 15 days
from the date of this order the parties submit additional information to support their settlement recommendation. Otherwise the
case will be set for hearing forthwitn.

Paul Merlin
Chief Administrative Law Judge

927

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U. S. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294 (Certified Mail)
Thomas Mascolino, Esq., Counsel, Trial Litigation, Office of the
Solicitor, U. S. Department of Labor, Suite 400, 4015 Wilson
Boulevard, Arlington, VA 22203 (Certified Mail) and
Lynn B. Larsen, Esq., Larsen & Wilkins, 500 Kennecott Building,
10 East South Temple, Salt Lake City, UT 84133 (Certified Mail)
Mr. Harry J. Lang, 1919 West North Temple, Salt Lake City, UT
84122 (Certified Mail)'
/gl

928

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 121987
DISCRIMINATION PROCEEDING

RONALD TOLBERT,
Complainant

Docket No. KENT 86-123-D

v.
CHANEY CREEK COAL CORP.,
Respondent

...

.

Dollar Branch Mine AKA
White Oak Mine

DECISION
Appearances:

Before:

Tony Oppegard, Esq., Appalachian Research and
Defense Fund of Kentucky, Inc., Hazard, Kentucky,
for Complainant; Thomas w. Miller, Esq., Miller,
Griffin and Marx, Lexington, Kentucky, for
Respondent.

Judge Melick

By decision dated March 16, 1987, Chaney Creek Coal
Corporation was found to have discriminated against
Ronald Tolbert, in violation of section 105Cc)(l) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c)(l}, the
"Act".
Based ·upon that decision, the parties subsequently
stipulated damages, costs {except attorney's fees), and interest,
through April 8v 19870
It is accordingly established that
through that date Ronald Tolbert is entitled to $13,888 net back
pay plus interest of $564.85. Subsequent to the submission of
those stipulations, further delays ensued because of disputes
concerning reinstatement and attorney's fees.
Accordingly,
Mr. Tolbert is also entitled to additional back pay corresponding
to any work days missed for failure of Respondent to
reinstatement himv plus interest computed in accordance with the
rmula set forth in Secretary Vo Arkansas-Carbona Company and
Walter, 5 FMSHRC 2042 (1983).
The Complainant also seeks an award of'attorneys fees and
expenses totalling $16,900.20 for work through April B,. 1987.
Section 105(c)(3) of the Act provides that "[w]henever an order
is issued sustaining the Complainants charges under this
subsection, a sum equal to the aggregate amount of all costs and
expenses {including attorneys fees) as determined by the
Commission to have been reasonably incurred by the miner,
applicant for employment, or representative of miners for, or in
connection with, the institution and prosecution of such

929

proceedings shall be assessed against the person committing such
violation."
Respondent specifically objects to attorney's fees for
certain services which it alleges could have been performed by a
nonattorney, paralegal, or paraprofessional, at a lower hourly
rate and, in particular, cites time spent interviewing witnesses
as an inappropriate function of an attorney.
It is well settled,
however, that the time an attorney spends on investigating facts
is clearly compensable. 1 Court Awarded Attorney's Fees,
§ 16.02Cb). There is no evidence, moreover, concerning the
availability of paralegals and/or investigators. Respondent's
objection in this regard is accordingly rejected.
Respondent also argues that the time spent in trial
preparation and in preparing posthearing briefs was excessive.
Complainant's counsel in this case did an exceptionally thorough
and competent job in preparing and presenting the Complainant's
case at trial and preparing his posthearing brief. While this
case did not involve novel legal issues, I find that the time
devoted by counsel in trial preparation and in the preparation of
the brief was not unreasonable or excessive in light of the
complex factual nature of the case. Accordingly, I also reject
Respondent's contention that excessive time was devoted to these
tasks.
Finally, Respondent argues that a telephone call with an
employee of the Respondent and with the Solicitor's Office of the
Department of Labor were not appropriately charged to this case.
In the absence of a specific showing, however, that those
telephone calls were notQ in fact, related to the case hereinv I
presume the truthfulness of the application.
Under the
circumstancesv I find the requested attorney's fees and expenses
to be appropriate.
FINAL ORDER
Chaney Creek Coal Corporation is hereby ORDERED to
immediately offer employment to Ronald Tolbert at its former
White Oak Mine or at its Chaney No. 3 (Harlan County) Mine at no
less than the current rate of pay in effect for the position of
serviceman (I do not find reinstatement to the Oneida Mine to be
appropriate in light of the unreasonable commutation time of
4 hours). Chaney Creek Coal Corporation is further ORDERED to pay
the Complainant within 30 days of the date of this decision, back
pay and interest through April 8, 1987, in the amount of
$14,452.85, as well as additional back pay and interest to the
date of reinstatement and in accordance with the Commission's
decision in Secretary v. Arkansas-Carbona Company and Walter,
5 FMSHRC 2042 (1983}.
Chaney Creek coal Corporation is further

930

ORDERED to pay Complainant ·attorney's fees and expenses of
$16,900.20. It is further ORDERED tha~,_,,·
the Decision and' Final
Order in this case be posted at all min s now being operated by
Chaney Creek Coal Corporation. This ca
is also being referred
to the Secretary of Labor for t~e purpos of instituting civil
penalty proceedings.

)L/ \ '. .\ A, 0' 0
1

r
A

~

Ul-t....>J\ v' v J~{)-U(;\,
,\

Melipk\

"nistrt:Jve Law Judge

Distribution:
Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc.,P.O. Box 360, Hazard, KY·41701 (Certified Mail)
Thomas w. Miller, Esq., Miller, Griffin & Marks, 700 Security
Trust Building, Lexington, KY 40507 (Certified Mail)
Thomas Mascolino, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
slk

931

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COlORADO 80204

SECRETARY QF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

MAY 121987

CIVIL PENALTY PROCEEDINGS.
Docket No. WEST 85-175-M
A.C. No. 04-04118-05501

v.

Docket No. WEST 86-39-M
A.C. No 1 04-04118-05502

BRIAN LACKEY CONCRETE,
Respondent

Lackey Concrete Mine

DECISION
Appearances:

Leroy Smith, Esq., Office of the Solicitor, U.S.
Department of Labor, Los Angeles, California,
for Petitioner;
Mr. Brian Lackey, Brian Lackey Concrete, Needles,
California,
E£Q~

Before:

Judge Lasher

These proceedings were initiated by the filing of proposals
for assessment of civil penalties by the Secretary of Labor
pursuant to Section llO(a) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. Section 820(a}(l977) (herein the "Act").
A hearing on the merits ~as held in Needles,. California, on April.
13, 19870
Respondent concedes that the 17 violations (issued on June
26§ l985u by MSHA Inspector Ronald Barri} charged in the two
dockets (16 in Docket 85-175-M and l in Docket 86-39-M) occurred.
The sole issue was the amount of appropriate penalties. The
parties waived filing of post-hearing briefs.
The amount of a penalty should relate to the degree of a
mine operator 9 s culpability in terms of willfulness or negligenceu the seriousness of a violation, the business size of the
operator 9 and the number and nature of violations previously
discovered at the mine involved. Mitigating factors include the
operator's good faith in abating.violative conditions and the
fact that a significantly adverse effect on the operator's
ability to continue in business would result by assessmen~ of
penalties at a particular monetary level. Factors other than the
above-mentioned six criteria which are expressly provided in the
Act are not precluded from consideration either to increase or
reduce the amount of penalty otherwise warranted.

932

Based o~ stipulations reached by the parties at the outset
of the hearing, it is found that this is a small mine operator
with no history of violations during the 24-month period prior to
the issuance of those involved in these two dockets.
The
Secretary agreed that Respondent proceeded in good faith to
promptly abate the 17 violations upon notification thereof.
The
parties agreed that all violations were committed as a result of
but a moderate degree of negligence on Respondent's part.
As to
the gravity of the violations, three (Citations numbered 2344842,
2344843, and 2344876) were stipulated as being "non-serious" in
nature; the remaining 14 violations were agreed to be serioµs
which agreement includes the violation charged in Citation No.
2344874 which is the only citation involved in Docket No. WEST
86-39-M.
With respect to the remaining mandatory penalty assessment
criterion provided in the Act, the Respondent e~tablished the
ultimate economic consideration, that is, Respondent, a sole
proprietorship owned and operated by Brian Lackey, showed that he
had gone out of business for economic reasons.
Mr. Lackey, age
46, had operated this very small Ctwo employees} placer (sand and
gravel) mine located near Needles, California, for approximately
20 years.
Approximately two months prior to the hearing Mr.
Lackey assigned his interest in the business to one Quinto
Polidori in payment of his indebtedness (approximately
$28,000.00) for such items as powder and cement.
Mr. Lackey also
testified that he owns no other businesses and has no other
source of income at the present time.
Respondent testified under
oath that all his remaining assets have a total value of approximately $5,000.00 while his debts somewhat exceed that sum.
In
early March 1987, Mr. Lackey underwent surgery for removal of a
lung and has been advised not to work for one year for medical
reasonso
Part of his indebtedness is for medical expenses.
Mro
Lackey stated his intention to leave California to return to
Illinois to l
with family for the immediate future"
In view
of this information revealed in sworn, unrebutted testimonyv it
is determined that only very modest penalties ($5.00 for each
violation) are warranted.
ORDER
The 17 citations hereinabove discussed in the above two
dockets are affirmed in all respectso
Respondent shall pay the Secretary of Labor within 30 days
from the date hereof the 17 penalties hereinabove assessed in the
total sum of $85.00.

~~~l«p~/}
Michael A. Lasher, Jr.
Administrative Law Judge

933

Distribution:
Leroy Smith, Esq., Office of the Solicitor, U.S. Department of
Labor, 3247 Federal Building, 300 North Los Angeles Street, Los
Angeles, C~ 90012 (Certified Mail)
Mr. Brian Lackey, Brian Lackey Concrete, P.O. Box 983, Needles,
CA 92363 {Certified Mail)
Ms. Wilma Baldwin, Office Manager, Needles Ready-Mix, Inc., P.O.
Box 983, Needles, CA 92363 (Certified Mail)

/bls

934

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

MAY 12 l987
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRJ'l.TION (MSHA) I
Petitioner
v.

Docket No. WEVA 86-272
A.C. No. 46-04266-03529
Meredith Mine

BULL RUN MINING COMPANY,
INCORPORATED,
Respondent
DECISION APPROVING SETTLEMENT

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding filed by the petitioner
against the respondent pursuant to section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a}, seeking
a civil penalty assessment in the amount of $500' for an alleged
violation of mandatory
standard 30 C.F.R. § 75.11Ul-8(b),
as stated
a section 104 (d) (1) Citation· No. 2710986, issued
at the mine on February 12, 1986.
The respondent filed a time
answer and contest, and the
case was scheduled for hearing in Morgantown, West Virginia,
on May 4, 1987. However, the hearing was cancelled after
petitioner 1 s counsel advised me that the case was settled. The
petitioner has now filed a motion pursuant to Commission Rule 30,
29 C.F.R. § 2700.30, s
approval o a settlement of the
case,
The proposed settlement agreement requires the respondent
to pay a civil penalty assessment in the amount of $200 for the
v
lation in question.
Discussion
The record in this case
lects that the petitioner's
proposed civil penalty assessment was "specially assessed" at
$500 in accordance with the six statutory criteria found in
section llO(i) of the Act as set forth in MSHA's regulations

935

at 30 C.F.R. § 100.3(a). In support of the proposed settlement disposition, the petitioner has submitted a full discussion
and disclosure as to the facts and circumstances surrounding the
issuance of the citation in question, and a reasonable justification for the reduction of the original proposed civil penalty
assessment.
'Petitioner states that the citation was issued because of
the failure of the respondent to provide two branch lines to
supply water to several belt head drives in the event of a fire.
The cited safety standard requires two branch lines for a
uniform discharge of water to the surface of the belt. While
the respondent concedes the existence of a violation and the
validity of the section 104(d) (1) "S&S" citation, petitioner
states that the respondent represents that the gravity of the
violation is mitigated due to the fact that in 1975 it installed
a multi-directional sprinkler head on each system to ensure a
uniform discharge of water to the belt, and that it did so in
response to a concern over the adequacy of fire protection for
the subject belt.
In view of the adequacy of this sprinkler
system, petitioner believes that the respondent is more properly
charged with a "moderate" degree of negligence and a reduced
level of gravity. Petitioner also states that the respondent
timely abated the violation by installing a second branch line
for each of the belt head drives.
Conclusion
After careful review and consideration of the pleadings,
arguments, and submissions in support of the motion to approve
the proposed settlement of this case, I conclude and find that
the proposed settlement disposition is reasonable and in the
public interest. Accordingly, pursuant to 29 C.F.R. § 2700 30,
the :notion IS GRANTED, and the settlement IS APPROVED.
ORDER
Re
IS ORDERED to pay a civil
ty in the amount
$200 in satisfaction of the citation in question within
thi
(30) days of the date of this decision and order, and
upon rece
of payrnent by the petitioner, this proceeding is
dismissed.
o

h!fc¥-

Administrative Law Judge

936

Distribution:
William T. Salzer, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Mr. Kevin Mayor, General Superintendent, Bull Run Mining
Company, P.O. Box 235, Reedsvi
, WV 26547 (Certified Mail)
/fb

937

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

May 13, 1987

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 87-41
A. C. No. 01-01247-03741
No. 4 Mine

v.

JIM WALTER RESOURCES, INC.,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

The parties have submitted a joint motion to approve settlements of the three violations involved in this case. The total
amount of the originally assessed penalties was $815 and the
total of the proposed settlements i's $723.
The motion discusses the violations in light of the six
statutory criteria set forth in section llO(i) of the Federal
Mine Safety and Health Act of 1977. Th~ operator has agreed to
pay the original assessment of $294 for Citation No. 2811209 and
$329 for Citation No. 2811213.
The parties propose that the originally assessed amount of
$192 for Citation No. 2810537 be reduced to $100, because negligence is less than was originally assessed. This citation cites
a violation of 30 C.F.R. § 75.1714-2(a) because a ram car
operator was observed inside the mine without a self rescuer
device on his person or within twenty-five feet of his person.
The parties represent that a reduction from the original assessment is warranted because once this condition was discovered, the
employee was issued a written reprimand by the opFrator pursuant
to the progressive disciplinary program employed at the mine. I
accept these representations and approved recommended
settlements.

938

In light of the foregoing, the settlement motion is Approved
and the operator is ORDERED TO PAY $723 within 30 days of the
date of this decision.

Paul Merlin ·
Chief Administrative Law Judge
Distribution:
William Lawson, Esq., Office of the Solicitor, U. S. Department
of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL
35203 (Certified Mail)
Harold D. Rice, Esq., Robert Stanley Morrow, Esq., Jim Walter
Resources, Inc., Post Office Box C-79, Birmingham, AL 35283
(Certified Mail)
H. Gerald Reynolds, Esq., Jim Walter Corporation, P. 0. Box
22601 9 Tampa, FL 33622 (Certified Mail)

Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, N. W.,
Washington, DC

20005

(Certified Mail)

I gl

939 -

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 131987
DISCRIMINATION PROCEEDING

WILFRED BRYANT,
Complainant

Docket No. WEVA 85-43-D

v.
Dingess Mine No. 2
DINGESS MINE SERVICE,
WINCHESTER COALS, INC.,
MULLINS COAL COMPANY,
JOE DINGESS AND JOHNNY
DINGESS,
Respondents
SUPPLEMENTAL DECISION
Before:

Judge Broderick

On February 24, 1987, I issued a decision on the merits of
this case. I concluded that Complainant was laid off on
April 27, 1984, for activity protected under the Act.
I
concluded that Dingess Mine Service and Joe and Johnny Dingess
were liable for the discriminatory lay off and that Winchester
coals, Inc. and Mullins Coal Company were not liable. I further
concluded that the adverse action terminated when Complainant
refused the off er to be called back to work, and that he formally
resigned on May 9, 19840 I ordered Dingess Mine Service to pay
Complainant back pay from April 27, 1984 to May 9 1 1984, with
interest in accordance with the Arkansas-Carbona formula, and to
reimburse him for reasonable attorney 1 s fees and costs of
litigationo
On April 28, 1987, counsel for Complainant filed a statement
of back pay with interest and a statement of attorney's fees and
expenseso Respondents have not replied to the statement. 1/

11 The copies of the Decision issued on February 24, 1987, and
the order extending time issued March 24, 1987, sent by certified
mail to Dingess Mine Service, Joe Dingess and Johnny Dingess were
all returned to the Commission by the Postal Service as
11
unclaimed."

940

BACK PAY AND INTEREST
The back pay claim is for nine regular work days at a daily
wage of $111.00 or a total of $999.00.
Interest calculated under
the Arkansas Carbona formula from April 27, 1984 to April 24,
1987, totals $298.48.
Interest shall accumulate thereafter in
the amount of .25 per day. The back pay and interest claim
conform to my prior decision, and will be approved.
COSTS OF LITIGATION
Complainant's statement shows litigation costs, including
travel for counsel and Complainant, in the total amount of
$665.18.
I accept this statement of expenses as reasonable and
will approve i L
ATTORNEY'S FEES
Section 105(c)(3) of the Act provides:
Whenever an order is issued sustaining the
Complainant's charges .
., a sum equal to the
aggregate amount of all costs and expenses (including
attorney 1 s fees) as determined by the Commission to
have been reasonably incurred by the miner . . . for,
or in connection with, the institution and prosecution
of such proceedings shall be assessed against the
person committing such violation.
A reasonable attorney's fee for the institution and
prosecution of a case such as this is determined by multiplying a
reasonable hourly rate by the number of hours reasona0ly expended
en the lawsuit.
See Lindy Bros. v. American Radiator, 487 F.2d
l6l (3rd Cir. 1973)~ Johnson Georgia Highway Express, 488 F.2d
714 (5th Cir. 1974)t Copeland v. Marshall, 641 F.2d 880 (D.C. ·
C:~L 1980) ["Copeland III" [.
HOURLY RATE
The reasonable hourly rate is the rate prevailing for
similar >1ork in thF community where the attorneys practice law.
Johnsonr supra.
It may vary depending upon such factors as the
kind of work involved, the experience and. skill of the attorneys,
the complexity of the case, the results obtained, the
undesirability of the case, and whether the fee is contingent or
fixed.
The attorneys who represented Complainant here are
seeking ap9roval of hourly rates of $75 (Ms. Fleischauer) and $65
(Mr. Sheridan).
There is no information in the record as to the
prevailing rate in the communities where they practiced.
There
is no information in the record as to the experience of either
1

941

attorney. The case was of average complexity, the fee was
contingent, the results obtained were very limited (9 days back
pay; no reinstatement). I recognize that it is important that a
fee award should reflect the policy of encouraging competent
representation for miners claiming discrimination.
Based on all
the information before me, I conclude that $65 is a reasonable
hourly rate for the hours reasonably expended by each of
Complainant's attorneys.
HOURS REASONABLY EXPENDED
Attorney Fleischauer claims compensation for 196 hours;
attorney Sheridan claims compensation for 121.3 hours. A
substantial number of hours are claimed by each attorney for
conversations and discussions with each other.
Both claim full
compensation for the time spent taking depositions and
participating in the trial of the case. Nothing was submitted to
show that the participation of both attorneys was required at the
depositions or the entire hearing, and I am not aware that it was
necessary.
I conclude that 100 of the 196 hours claimed by
Ms. Fleischauer are properly billable at the hourly rate of $65;
the remaining 96 hours are properly billable at 50 percent of
this rate or $32.50. This totals $9620.
Because of the
extremely limited recovery, I believe it proper to reduce this
amount by 33-1/3 percent. This reflects my conclusion that a
substantial part of the time for which fees are claimed was
"spent litigating issues upon which plaintiff did not ultimately
prevail", Copeland, supra, at page 902.
In fact, much of the
time was spent attempting to establish liability in Winchester
and Mullins.
Therefore, I will approve .a total fee for
Ms. Fleischauer in the amount of $6415. Mr. Sheridan's statement
shows 75 hours properly billable at $65
hour and 46 hours
which are duplicative or involve discussions with co-counsel and
are properly billable at $32.50 per hour"
This totals $6370.
Reducing it
33-1/3 percent, I will approve a total fee for •
Mr. S
idan n the amount of $4247.
ORDER
Based on the record in

IT IS

s case and the above conclusionsv

ORDERED~

1.

e decision issued February 24, 1987 is confirmed.

2. Respondents Dingess Mine Service, Joe Dingess and Johnny
Dingess shall within 30 days of the date of this decision pay to
claimant the sum of $1297.48 representing back pay from April 27,
1984 to May 9, 1984, and interest to April 24, 1987. Said
Respondents shall pay further interest at the rate of 9 percent
per annum from April 24, 1987, until the total amount is paid.

942

3. Respondents Dingess Mine Service, Joe Dingess and Johnny
Dingess shall, within 30 days of the date of this decision
reimburse Complainant Wilfred Bryant for his litigation expenses
in the amount of $99.
4.
Respondents Dingess Mine Service, Joe Dingess and Johnny
Dingess shall, within 30 days of the date of this decision, pay
to Barbara Fleischauer, Esq., the sum of $6415 as attorney's fees
and $566.18 as litigation expenses.'
5. Respondents Dingess Mine Service, Joe Dingess and Johnny
Dingess shall, within 30 days of the date of this decision, pay
to Paul R. Sheridan, Esq., the sum of $4247 as attorney's fees.

6.

This decision is final.

"f i1l/1HC S
.. ·:

·;
<../

James A. Broderick
Administrative Law Judge

Distribution:
Barbara Jo Fleischauer, Esq., 346 Watts Street, Morgantown, WV
26505 (Certified Mail)
Paul R. Sheridan, Esq., Appalachian Research and Defense Fund,
Inc., 504 White and Browning Building, Logan, WV 25601 (Certified
Mail)
Robert Q" Sayre, Jr., Esg.u
frey Hallu Esq.; Goodwin and
Goodwin, 1500 One Valley Square 1 Charlestonu WV 25301 (Certified

Mail)
Mr. Joe Dingess, Box 1024, Chapmanville, WV 25508 (Certified
Mail)
Mr. Johnny Dingessu Box 1024u Chaprnanvil
Mail)

, WV 25508 (Certified

Dingess Mine Serviceu Box 1024, Chapmanville, WV 25508 (Certified
Mail)

slk

943

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

MAY 191987
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) I
ON BEHALF OF
RONALD G. NELSON,
Complainant

Docket No. WEVA 87-79-D
HOPE CD 86-23
VC No. 15-A Mine

v.
VALLEY CAMP COAL COMPANY,
(DONALDSON MINING COMPANY) ,
Respondertt
ORDER OF DISMISSAL
Before:

Judge Maurer

The Complainant, Secretary of Labor, with the consent of
the individual Complainant, Ronald G. Nelson, requests in
effect to withdraw his complaint of discrimination in the
captioned case on the grounds that the parties have reached
a mutually agreeable settlement.
Under the circumstances
herein, permission to withdraw is granted.
29 C.F.R. § 2700.11.
The case is therefore dismissed.

~~~

Roy
Adm

.

aurer
strative Law Judge

Mark R. Malecki, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Blvd., Arlington, vA 22203 (Certi-i=ied Mail)
Laura E. Beverage, Esq., Jackson, Kel
, Holt & O'Farrell,
P. o. Box 553, Charleston, WV 25322 (Certi ed Mail)

yh
944

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

MAY 2 0 1987
CONTEST PROCEEDINGS

PEABODY COAL COMPANY,
Contestant

.

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. KENT 86-94-R
Citation No. 2214342;
3/3/86
Docket No. KENT 86-95-R
Citation No. 2214343;
3/5/86
CIVIL PENALTY PROCEEDING

:

v.

Docket No. KENT 87-154
A.C. No. 15-08357
Camp No. 11 Underground
Mine

PEABODY COAL COMPANY,
Respondent
DECISION
Appearances:

Beforeg

Michael 0. McKown, Esq., Henderson, Kentucky,
for Peabody Coal Company;
Thomas A. Grooms, Esq., Office of the
Solicitorv U.S. Department of Laborv for the
Secretary of Labor.

Judge Fauver

Peabody Coal Company seeks to have two citations
vacatedu and the Secretary seeks to have them affirmed and
civil penalties assessed for violations charged in thernu
under the Federal Mine Safety and Health Act of
77f
30 u.s.c. § 801~ et~
The basic issue is whether the eqfii~ment cited
is required to have a cab or canopy under 30 C.F.R.
§ 75.1710-1.

945

Based on the hearing evidence and the record as a whole,
I find that a preponderance of the reliable, probative, and
substantial evidence establishes the following:
FINDINGS OF FACT
1. Peabody is a large operator of coal mines producing
coal for use or sale in interstate commerce.
2. Peabody's Camp No. 11 Mine is a large underground
coal mine near Morganfield, Kentucky.
3. From about 1978 to the present, two coal production
sections at Camp No. 11 Mine have used what is called a
"continuous haulage system," which is designed so that coal
mined by a continuous miner is put directly onto a mobile
haulage system that conveys it to the panel belt line. The
continuous haulage system consists of three piggyback
conveyors, two mobile bridge carriers (MBCs) and a special
low structure or dolly that is connected to the tailpiece of
the panel belt. The inby part of the system is connected to
a Joy continuous miner. All these components are joined by
slot devices hooked together by pins. The components may be
disconnected, and this is done between mining cycles. The
MBCs provide mobility to the system so that it can adjust to
movement of the continuous miner ~ithout disrupting the
constant movement of mined coal. The system is substantially
more efficient than using shuttle cars to move coal from the
continuous miner.
4.
The components described above are connected in the
following order: the continuous minerf a piggyback conveyor,
a mobile bridge conveyor (MBC), another piggyback conveyor, a
second MBC, and a third piggyback conveyor that is connected
to a special dol
that "rides" up and down the panel belt
onto which coal is dumped.
5.
Peabody uses a five entry system in its continuous
haulage sections. At timesp it reduces the entries to three
where gas or oil wells or other obstructions are encountered.
6. The mining cycle using the continuous haulage system
results in offset crosscuts at angles of approximately 60
degrees. The last open crosscut resulting from such a
configurationv and as defined by the flow of air across the
section, includes not only the openings between the entries
but across the intersections and that part of an entry inby
an intersection to the point of the next intersection inby.
That is, the last open crosscut follows the air flow across
the entries of the working section.

946

7. The distance from the first (the inby) MBC
operator's compartment to the cutting drums of the continuous
miner is 105 feet plus or minus two feet.
8. From their earliest use at this mine, the MBCs have
not been equipped with a cab or canopy over the operator's
compartment where the operator sits while operating the MBC.
9. On March 3, 1986, and March 5, 1986, Peabody was
issued Citations 2214342 and 2214343 for operating the MBCs
without cabs or canopies.
DISCUSSION WITH FURTHER FINDINGS
The controlling issue is whether the first (the inby)
MBC is subject to 30 C.F.R. § 75.1710-1, which provides in
inent part:
(a) *** [A]ll self-propelled electric
face equipment, including shut tl.e cars, which
is employed in the active workings of each
underground coal mine ••• shall ••• be equipped
with substantially constructed canopies or cabs,
located and installed in such a manner that when
the operator is at the operating controls of such
equipment he shall be protected from falls of roof,
face, or rib, or from rib and face rolls.
The MBC is self-propelled and is electrically oper~ted,
but is it "electric
ce equipment"? That term is not ·
ined by the cab/canopy regulation, but 30 C.F.R. § 75.2(i)
provides a practical line of demarcation (emphasis added):
(i)
"Permissible" as applied to
ic
face equipment means all electrically operated
equipment taken into or used inby the last open
crosscut of an entry or a room of any coal mine
the electri
parts of which, including, but not
limited tov associated electrical equipment 1
components, and accessories, are designed,
constructed, and installed, in accordance with
the specifications of the Secretary, to assure
that such equipment will not cause a mine
explosion or mine fire, and the other features
of which are designed and constructed, in
accordance with the specifications of the
Secretary, to prevent, to the greatest extent
possible, other accidents in the use of such
equipment. ***

94 7

The issue thus leads to the meaning of the "last open
crosscut" as used in§ 75.2(i). This term is not defined in
the Act or regulations.
Peabody's witness, Mr. Charles Jernigan, testified and
illustrated his testimony by marking Exhibits G-10 and G-11
in yellow pencil to show that the last open crosscut is only
the'area between, but not including, the mine entries.
However, he testified in response to questions from counsel
for the Secretary that the definition of "last open
crosscut" is "where your air tr~vels across your face,"
meaning where the "air travels through on the intake and
exhaust system" (Tr. p. 163).
The Bureau of Mines Dictionary of Mining, Minerals and
Related Terms
(1968) does not define last open crosscut but
does define "crosscut" in part as follows:
In room and pillar mining the piercing
of the pillars at more or less regular
intervals for the purpose of haulage
and ventilation.
The Secretary's witness, Mr. David Whitcomb, defined
"last open crosscut" as "the last continuous line the air
passes through across the [run] l; from one side of the entry
to the other side" (Tr. p. 258).- I find that this definition
is consistent with the pattern of ventilation and electrical
standards under the Act. The operative concept of the last
open crosscut is used in many of the regulations found in
Title 30, Part 75 of C.F.R. For example, § 75.500(a)
requires all multiple power connections "inby the last open
crosscut" to be permissible. See also: §§ 75.507-1,
75.522-1, 75.1002-1, and 75.1107-5. If Peabody's
characterization of last open crosscut as only the areas
between the entries were applied literally this would make
inby the last open crosscut the middle of a solid block of
coal.

l/ Although the court reporter transcribed the word "drum" at
this pointr I find that Mr. Whitcomb actually said "run" and
the reporter made an error in transcription.
"Run" as used
by Mr. Whitcomb refers to the distance from the Number 1 to
the Number 5 entries, that is, the full expanse of the coal
faces being developed. See Bureau of Mines Dictionary of
Mining, Mineral and Related Terms (1968) giving a definition
of "run" as "The horizontal distance to which a mine drift is
or may be carried."

948

I credit Mr. Whitcomb's definition of last open crosscut
as being reliable and accurate. Peabody's narrow definition
would lead to arbitrary results, inconsistent with the broad,
remedial purposes of the statute.
I also credit Mr. Whitcomb's testimony analyzing the
mining cycle and movements of the first {inby) MBC based upon
the other hearing evidence. The evidence shows that,
applying the definition of last open crosscut used by Mr.
Whitcomb, the first MBC operator's compartment enters the
st open crosscut in the mining cycle. Mr. Whitcomb's
careful analysis of the mining cycle and distances involved
also shows that, even if Peabody's narrow definition of last
open crosscut were applied, the operator's compartment of the
first MBC still enters the last open crosscut.
Since the first MBC operator's compartment enters the
last open crosscut, it is required to have a cab or canopy
under § 75.1710-1. Since the MBCs are mobile and
interchangeable, all of the MBCs that are subject to being
used in the first MBC position are required to have a cab or
canopy under § 75.1710-1.
The Secretary also contends that the continuous haulage
system is a "unitary or integrated system" that must be
viewed as a single unit for purposes of applying the
cab/canopy regulation. The Secretary argues that, since the
Joy miner and at least part of the first MBC move into or
inby the last open crosscut, every part of the system should
held td be subject to § 75.170-1.
I do not find this argument persuasive. The MBCs and
s function both as a belt conveyor and a substitute for
cars. The components are interchangeable and
separable. The test of applying the cab/canopy regulation is
whether the equipment operator's compartment is subject to
being used in or,inby the last open crosscut.
It would
stretch the standard too far to hold that the second MBCu
which is
r removed from the last open crosscutv should be
considered 00 face equipment" solely because the front part of
the continuous haulage system is in or inby the last open
crosscut.
These cases involve a novel haulage system that raises a
question of first impression. The operator used this system
for a number of years without being cited by the Secretary
until March of 1986. The operator has held a sincere, good
faith beli
that the cab/canopy standard does not apply to
its continuous haulage system. The violations are serious
because of the gravity of injuries that could occur if an MBC
operator were struck in a fall of roof or rib. However, the
company is making a good faith test of its interpretative
position, which differs from the Secretary's. I therefore
assess a penalty of $1.00 for each violation.
949

ORDER
WHEREFORE IT IS ORDERED that:
1.

Citations 2214342 and 2214343 are AFFIRMED.

2.
Peabody Coal Company shall pay the above-assessed
civil penalties of $2.00 within 30 days of this Decision.

UJ~f~v~

William Fauver
Administrative Law Judge

Distribution:
Michael o. McKown, Esq., P.O. Box 1990, Henderson, KY 42420
(Certified Mail)
Thomas A. Grooms, Esq., Office of the Solicitor, U.S.
Department of Labor, 280 U.S. Courthouse, 801 Broadway,
Nashville, TN 37203 (Certified Mail)
kg

950

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 2 0 \981
DISCRIMI~ATION

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
DAVID WARD,
Complainant

PROCEEDING

Docket No. WEVA 86-376-D
HOPE CD 86-6
Montcoal No. 7 Mine

v.
PEABODY COAL COMPANY,
Respondent
ORDER OF DISMISSAL
DECISION APPROVING SETTLEMENT
Judge Maurer
.The Secretary has filed a motion explaining that pursuant
to agreement between the parties, the complainant now
reor will receive all the relief sought in this case.
Furthermore, the assessed penalty of $1,000 has been
Based upon my review of the Secretary's motion, I am
s
sfied that the proposed settlement is consistent with.. the
purposes and spi
of the statute.
In light of
foregoing, the proposed settlement is
APPROVED and this matter is hereby DISMISSED.

t~

. W:i.urer

·s~rative Law Judge

stribution:
S
la K. Cronan, Esq., Office of
Solicitor, u. S. Department of Labor, 4015
lson Blvd., Arlington, VA 22203 (Certified Mail)
Mi
1 A. Kafoury,
., Peabody Coal Co., 301 North Memorial
Dr., St. Louis, MO 63166 (Certified Mail)

yh

951

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

MAY 201987
SECRETARY OF LABOR,
MINN SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
KELSO COAL COMPANY, INC.,
Respondent

CIVIL PENALTY PROCEEDlNG

.
.

Docket No. WEVA 87-15
A.C. No. 46-07103-03501
Williams Mountain No. 1

DECISION
Before:. Judge Fauver
On April 29, 1987, because of Respondent's failure to
comply with a prehearing order, a show cause order was issued
allowing Respondent until May 11, 1987, to show cause in
writing why it should not be held in default and ordered to
pay the civil penalties proposed by the Secretary of Labor.
Respondent has failed to file a response to the show
cause order, and is hereby deemed to be in default and to
have waived its right to a hearing. The proposed civil
penalties shall therefore be made the final order of the
Commission.
WHEREFORE IT IS ORDERED that Respondent shall pay the
secretaryus proposed civil penalties in the amount of $340.00
thin 30 days of this Decisiono

~~"'~
William Fauver
Administrative Law Judge
Distribution~

Page Jacksonu Esq.v Office of the Solicitoru U.S. Department
of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA
22203 (Certified Mail)
Mr. Randall W. Knight, President, Kelson Coal Company, Inc.,
P.O. Box F, Seth, T/N 25181 (Certified Mail)
kg

952

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 201987
CIVIL PENALTY PROCEEDINGS

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

Docket No. WEVA 87-67
A.C. No. 46-01452-03621

v.

Arkwright Mine

CONSOLIDATION COAL COMPANY,
Respondent

Docket No. WEVA 87-42(A)
A.C. No. 46-01453-03735
Docket No. WEVA 87-419
A.C. No. 46-01453-03711
Docket No. WEVA 87-68
A.C. No. 46-01453-03737
Humphrey No. 7 Mine
Docket No. WEVA 87-70
A.C. No. 46-01455-03650
Osage No. 3 Mine
Docket No. WEVA 86-384
A.C. No. 46-01454-03667
Pursglove No. 15 Mine

DECISION APPROVING SETTLEMENT

Before:

Judge Broderick

On May 15; 1987, the parties filed a joint motion for
approval of a settlement reached between them. The above
dockets contain a total of 10 all
violations of 30 C.F.R.
Part 50 and•were or
ly assessed in the total amount of
$400.
The motion
ses a settlement for the
of
a total of $5000, or $500 for each,all
violation.
On the all
violations, f
were
lly assessed
at $20 each 1 four were assessed at $50 each, and one was

953

assessed at $100. The motion states that the parties disagreed as to the proper interpretation of the requirements
of Part 50, but that Consol agrees to comply with the broad
intent of Part 50 and MSHA's interpretation thereof in the
informational bulletin issued in December 1986. The
settlement does not constitute an admission by Consol to
any violation of the Act or the regulations or standards
promulgated thereunder, but for the purposes of the settlement,
Consol consents to a finding of the existence of the alleged
violations. Consol is a large operator; the violations were
serious and the result of negligence. They were abated in
good faith.
Consol has an average history of violations for
an operator of its size.
I have considered the motion in the light of the criteria
in section llO(i) of the Act, and conclude that it should be
approved.
Accordingly, the settlement is APPROVED and Respondent
is ORDERED TO PAY the sum of $5000 within 30 days of the
date of this order.

.
A

~J/-1/~ ,;Vb~'(/&,v~

ames A. Broderick
Administrative Law Judge

Distribution:
Edward H. Fitch, Esq., U.S. Department of Labor, Office of
the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Michael Ro Peelish1 Esqo; Consolidation Coal Company, 1800.
Washington Road 9 Pittsburgh: PA 15241 (Certified Mail)
slk

954

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

Hay 20, 1987

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

~IVIL

PENALTY PROCEEDING

Docket No. WEVA 87-90
A. C. No. 46-01453-03745

v.

Humphrey No. 7 Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

This case is a petition for the assessment of civil
penalties filed by the Secretary against Consolidation Coal
Company. Involved are five violations of 30 C.F.R. § 50.20(a)
for failure to report occupational injuries as required by the
regulations. Each violation was originally assessed at $150 and
the proposed settlements are for $500 apiece.
I have previously set forth my views regarding Part 50.
Consolidation Coal Company,
FMSHRC
(April 9, 1987).
In the subject action the settlement motion recites in
pertinent part:
The Secretary submits that Consol is a
large operator. The Secretary further submits that each of the violations involved an
appreciable degree of negligence and seriousness., The files include information related
to the fact that the violations were abated
after issuance in good faith and that payment
of the agreed-to penalties will not adversely
affect Consol's ability to remain in business,
Consol has an average history of prior
violations for a mine operator of its size,
I accept the foregoing representations and further note that
so many violations of the same type demonstrate a disturbing
pattern. The increases in the ori~inal assessments are warranted
and appropriate.

955

In light of these circumstances, the settlements are
Approved and the operator is ORDERED TO PAY $2,500 within 30 days
from the date of this order.

:: \='cJ__

Paul Merlin
Chief Administrative Law Judge
Distribution:
William T. Salzer, Esq., Office of the Solicitor, U. S. Department of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Edward H. Fitch, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mai l )
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
I gl

956

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

May 22, 1987

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. SE 87-38
A. C. No. 01-00328-03613
Bessie Mine

v.

JIM WALTER RESOURCES, INC.,
Respondent

Docket No. SE 87-39
A. C. No. 01-00758-03684
No. 3 Mine
Docket No. SE 87-53
A. C. No. 01-01322-03654
Docket No. SE 87-59
A. C. No. 01-01322-03657
No. 5 Mine

Docket No. SE 87-60
A. C. No. 01-01401-03657
No. 7 Mine

Docket No. SE 87-62
A. C. No. 01-00758-03685
No. 3 Mine
Docket No. SE 87-63
C. No. 01-00328-03616

A.

Bessie Mine
Docket No. SE 87-66
A. C. No. 01-01247-03756
No. 4

Mine

Docket No. SE 87-70
A. C. No. 01-01322-03664
No. 5 Mine

Docket No. SE 87-71
A. C. No. 01-00328-03618

Bessie Mine
957

SUMMARY DECISION
ORDER TO PAY
Before:

Judge Merlin

The above-captioned cases are petitions for the assessment
of civil penalties filed by the Secretary against Jim Walter
Resources, Inc. Each case involves a violation for excessive
respirable dust.
Docket No. SE 87-38, Citation No. 9984247, cites a violation
of 30 C.F.R. § 70.lOO(a) because the average concentration of
respirable dust in the worki.ng environment of the mechanized
rnini~g unit was 3.3 mg/m3 of air.
The permissible limit is 2.0
mg/mj.
Docket No. SE 87-39, Citation No. 2806429, cites a violation
of 30 C.F.R. § 70.lOO(a) because the average concentration of
respirable dust in the working environment of a designated occupation tailgate shearer operator on a longwall mechanized mining
unit was 3.6 mg/m3. The permissible limit is 2.0 mg/m3.
Docket No. SE 87-53, Citation.No. 9984269, cites a violation
of 30 C.F.R. § 70.101 because the average concentration of
respirable dust in the working environment of the mechanized
mining unit was 1.8 mg/m3 of air. The permissible limit is
1.7 mg/m3.
Docket No. SE 87-59, Citation No. 9984270, cites a violation
§ 70.lOO(a) because the average concentration of
espirable dust in a designated area was 2.5 mg/m3 of air. The
permissible limit is 2.0 mg/m3.

;o C.F.R.

j

All violations were designated as significant and
substantial on the citations.
On May 4, 1987 the parties submitted the foregoing four
cases for summary decision based upon a Joint Stipulation of
Facts which reads as follows:
1.

Jim Walter Resources, Inc., is the owner
and operator of the subject mines;

2.

The operator and the mines are subject
to the jurisdiction of the Federal Mine
Safety and Health Act of 1977;

3.

The Administrative Law Judge has
jurisdiction of these cases;

958

4.

The inspectors who issued the subject
citations were duly authorized
representatives of the Secretary of
Labor;

5.

Copies of the subject citations were
properly served upon the operator;

6.

With respect to Citation Nos. 9984247,
9984269, 9984270, and 2806429, the facts
and conditions described on the face of
the respective citations are true and
accurate and constitute violations of
the cited sections of the Code of
Federal Regulations;

7.

Citation No. 9984247 was terminated on
December 12, 1986; Citation No. 9984269
was terminated on December 30, 1986;
Citation No. 9984270 was terminated on
January 26, 1987; and Citation No.
2806429 was terminated on December 8,
1986;

8.

The operator makes respirators available
to its employees;

9.

The operator submits that by providing
respirators to its employees, the
operator satisfies its burden of proof
in rebutting the presumption that the
cited violations are significant and
substantial. The operator 9 therefore 9
offers no evidence as to whether
respirators are actually worn;

10.

The size of the operator is medium;

11.

Imposition of penalties will not affect
the operator 1 s ability to continue in
business;

12.

The violations were abated in good
faith;

13.

The operator's history of prior
violations is average for its size;

14.

The negligence of the operator is
moderate;

15.

The gravity of the violations is
serious.

959

Subsequently, the parties requested that six additional
cases, Docket Numbers SE 87-60, SE 87-62, SE 87-63, SE 87-66, SE
87-70, and SE 87-71, all of which involved respirable dust violations, also be decided in this proceeding on the same basis as
the first four. In a motion dated May 13, 1987, the parties
stipulated as follows:
Additional cases have since arisen which
present this identical issue. Accordingly,
the parties now move to-consolidate the
following cases with those previously
submitted to the Court [sic] on May 1.

*

*

*

*

*

The operator stipulates that these seven
additional citations also constitute violations of the cited regulatory provisions.
The parties further adopt and incorporate
herein the Joint Stipulation of Facts submitted in Docket Nos. SE 87-38, 87-39, 87-53,
and 87-59, and the respective briefs filed
therein.
Docket No. SE 87-60, Citation No. 2806388, cites a violation
of 30 C.F.R. § 70.lOO(a) because the average concentration of
respirable dust in the working environment on the longwall
section was 3.3 mg/m3 of air. The permissible limit is 2.0
mg/m3,
Docket No. SE 87-62, Citation No. 9984275, cites a violation
30 C.F,R, § 70.lOO(a) because the average concentration of
ust in the working environment of the mechanized mining unit was
2o2 mg/m3 of air. The permissib1e 1imit is 2.0 mg/m3.
Docket No. SE 87-63, Citation No. 2811811, cites a violation
of 30 C.F.R. § 70.lOO(a) because the average concentration of
respirable dust in the working environment of the mechanized
mining unit was 2.3 mg/m3o The permissible limit is 2.0 mg/m3.
Docket No. SE 87-66, Citation No. 2811809, cites a violation
of 30 C.F.R. § 70.lOO(a) because the average concentration of
respirable dust in the working environment on the 1ongwall
section was 3.5 mgfm3 of air. The permissible limit is 2.0
mg/m3.
Docket No. SE 87-70, Citation No. 9984296, cites a violation
of 30 C.F.R. § 70.lOO(a) because the average concentration of
respirable dust in the working environment of a mechanized mining
unit was 2.6 mg/m3 of air. The permissible limit is 2.0 mg/m3.

960

Docket No. SE 87-71, involves two violations. 1/ Citation
No. 9984297 cites a violation of 30 C.F.R. § 70.lOO(a) because
the average concentration of respirable dust in the working
environment of a mechanized unit was 2.7 mg/m3 of air. Citation
No .. 9984298 cites a violation of 30 C.F.R. § 70.lOO(a) because
the average concentration of respirable dust in the working environment of a mechanized mining unit was 2.2 mg/m3 of air. The
permissible limit is 2.0 mg/m3.
In these additional six cases the violations also were
designated as significant and substantial on the citations.
The existence of the violations and other matters set forth
in the stipulations having been admitted, the sole issue presented is whether the violations are significant and substantial
in accordance with governing Commission precedent.
In Consolidation Coal Company, 8 FMSHRC 890 (1986), appeal
docketed, No. 86-1403 (D. C. Cir. 1986) the Commission estab1 ished a rebuttable presumption that all respirable dust violations are significant and substantial, stating in pertinent
part:

* * *we hold that when the Secretary proves
that a violation of 30 C.F.R. § 70.lOO(a),
based upon excessive designated occupation
samples, has occurred, a presumption that the
violation is a significant and substantial
violation is appropriate. We further hold
th1s presumption that the violation is significant and substantial may be rebutted by the
operator by establishing that miners in the
designated occupation in fact were not exposed to the hazard posed by the excessive
concentration of respirable dust, e.g.,
through the use of personal protective
equipment. * * *
8 FMSHRC at 899.

As noted abov~. Docket Number SE 87-53 involves respirable
dust with quartz. 30 C.F.R. § 70.l~l. In U. S. Steel Mining
Co. Inc., 8 FMSHRC 1274 (1986) the Commiision applied the
pr nc p es adopted in Consolidation Coal Company to respirable
dust with quartz, explaining:
In Consol the Commission further held that,
because analysis of the four elements of the

ll

In Docket Nos. SE 87-66, SE 87-70, and SE 87-71, I accept
the Joint Motion dated May 13, 1987, as the operator's
answers to the penalty petitions pursuant to 29 C.F.R.
§ 2700.28.
961

significant and substantial test would be
essentially the same in each instance in
which the Secretary proves a violation of
30 C.F.R. § 70.lOO(a), proof of a violation
gives rise to a presumption that the violation is significant and substantial.
8 FMSHRC at 899. We conclude that a similar
presumption is appropriate when the Secretary
proves a violation of 30 C.F.R. § 70.101. We
further hold that, as with a violation of
section 70.lOO(a), the presumption can be
rebutted by the operator by establishing that
miners in the designated occupation in fact
were not exposed to the excessive concentration of respirable dust,~., through the
use of personal protective equipment. See 8
FMSHRC at 899. In the instant proceedi~
there is no evidence that the miners placed
at risk by the subject violations were not
exposed to excessive levels of silica-bearing
respirable dust.
8 FMSHRC at 12810
The operator asserts that it rebuts the presumption of
significant and substantial by making respirators available to
the mine.rs. "Available" means "suitable or ready for use;
usable; at hand * * * readily, obtainabl.e; accessible * * *" The
Random House College Dictionary, Revised Edition (1980). The
foregoing Commission precedent is not couched in terms of availability. Rather, the Commission- holds that the presumption may
be rebutted only when the operator establishes that the miners in
fact were not exposed to excessive concentrations of respirabledust through the use of personal protective equipment, The
distinction is clearo The Commission requires a showing that
miners were not exposed because they used respirators. Merely
making respirators available without any concern or interest in
their actual use falls short of the evidentiary requirement
established in Consolidation Coal 0 The standard of proof
required to rebut the presumption of significant and substantial
must Le viewed in light of the dire consequences resulting from
over-exposure to respirable dust. As the Commission noted:

* * *

Indeed, prevention of pneumoconiosis
and other occupational illnesses is a
fundamental purpose underlying the Mine
Act,*** (emphasis in original).
Consolidation Coal Company, supra at 895.
The operator's reference to section 202(h) of the Act,
30 U.S.C. § 842(h)i which directs that approved respiratory
962

equipment shall be made available to miners exposed to excessive
respirable dust concentrations, is misplaced. That requirement
is separate and distinct from the issue of what evidence is
sufficient to rebut the presumption that a respirable dust violation is significant and substantial. As the Solicitor's brief
points out, if this argument were accepted, the presumption would
always be rebutted by an operator's mere compliance with section
202(h).
In light of the foregoing, I conclude that the subject
violations were significant and substantial.
As set forth above, the parties have stipulated to the six
elements required to be considered by section llO(i) of the Act
for assessment of a civil penalty. I accept the stipulations.
In addition, the penalty amounts levied herein reflect the degree
of gravity as evidenced in each instance by the amount of
deviation from the required standard.
In accordance with the stipulations, the following civil
penalties are assessed.
Docket No.

Citation No.

Penalty

SE 87-38
SE 87-39
SE 87-53
SE 87-59
SE 87-60
SE 87-62
SE 87-63
SE 87-66
SE 87-70
SE 87-71
SE 87 -71

9984247
2806429
9984269
9984270
2806388
9984275
2811811
2811809
9984296
9984297
9984298

$200.00
$250.00
$100.00
$150.00
$200.00
$100.00
$100.00
$250.00
$150.00
$150.00
$100.00

It i s ORDERED that operator pay $1,750.00 within 30 days
from the date of th i s decision.

Law Judge

963

Distribution:
William Lawson, Esq., Office of the Solicitor, U. S. Department
of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL
35203 (Certified Mail)
Harold D. Rice, Esq., Robert Stanley Morrow, Esq., Jim Walter
Resources, Inc., Post Office Box C-79, Birmingham, AL 35283
(Certified Mail)
H. Gerald Reynolds, Esq., Jim Walter Corporation,,P. O. Box
22601, Tampa, FL 33622 (Certified Mail}
Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, N.W.,
Washington, DC 20005 (Certified Mail)
I gl

964

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COtFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

MAY 2 2 \987
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY A~D HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. WEST 86-61-M
A.C. No. 04-01937-05501

v.

Sanger Pit & Mill

S.A.NGER ROCK

& SAND,
Respondent

DBCISION
Appearances:

Marshall P. Salzman, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco, California
for Petitioner;
Mr. W. A. Baun, President, Sanger Rock & Sand,
Clovis, California,
se.

Before:

Judge Cetti

This civil penalty proceeding arises under the Federal Mine
Safety arid Health Act of 1977, 30 U.S.C. § 801 et~., ("Mine
Act"). The Secretary of Labor, on behalf of
Mine Safety and
Health Administration, charges the operator of an open pit mine
with violating a safety regulation, 30 C.F.R. § 56.14001, which
requires the guarding of moving machine parts.
T s proceeding was initiated
the Secretary with the
filing of a proposal for assessment of a civil penalty.
The
operator filed a timely appeal contesting the existence of the
alleged violationo
The Secretary then moved to amend the
citation to change the safety standard allegedly violated from 30
CoF.Ro § 560140°06 to 30 C.FoRo § 56.140010
A hearing on the merits was held'before me at Fresnov
Californiao
and documentary evidence was introduced by the
parties and case was held open 15 days for the filing of proposed
findings of fact and conclusion of law which were timely filed by
the Secretaryo
Both parties waived their right to file posttri
briefs.

965

Issues
The issue as stated by the Secretary in his response to a
Prehearing Order is whether or not the V-belt drive was "guarded
by location". Stated more broadly the issues are the existence
of the alleged violation of 30 C.F.R. § 56.14001 and the appropriate penalty.
Stipulations
The parties stipulated as follows:

1. Respondent is the operator
an open pit mine with
screening and processing equipment to process rock & sand.
2.

Respondent is a small operator.

3.

Respondent has a good history.

4.

Respondent demonstrated good faith.

5. The penalty would not
feet the ability of the
respondent to continue in business.
THE

REGULATION
30 C.F.R. § 56.14001 provides as follows:
Gears: sprockets; chains; drive, head, tail, and takeup
pulleys; flywheels; couplings; shafts; sawblades: fan
inlets; and similar exposed moving machine parts which may
be contacted by persons, and which may cause injury to
persons, shall be guarded.
Summary of the Evidence

The inspector admitted
made
s inspection at a time when
the rock and sand processi
plant was not in operation. By
bending or stooping under some water hoses which were located 39
inches above the floor of a dead end catwalk the inspector was
able to gain access to the area where he observed an unguarded
V-belt dr
on t
No. l screen. The inspector testified that
the V-belt drive had in the
t been isolated and guarded by
location.
He
ined that it had been guarded by location by
virtue of a metal bar or railing (
also referred to it as a
guard) which had been
ded in such a way as to protrude across
the dead
catwalk that was located along the side of the
V-belt drive. The short bar had been
ded across the catwalk
in the area where the large
lt-high water hoses partially
blocked the catwalk. The inspector saw the metal bar lying on
the deck below the area where it "had broken loose." The
inspector stated that the alleged violation was abated when the
metal bar or railing was welded back in the same place where it
had broken loose.

966

Mr. Baun, president of the
Rock & Sand testified that
he is a graduate engineer.
He recei
a BS degree in Engineering from University of Pacific in 19~4 and for the past 20 years
he has been the safety engineer for the company.
He has read the
manuals and attended MSHA and OSHA's seminars for different types
of safe
training.
Mr. Baun testified that even without the railing welded
across the dead end catwalk the V-be
drive was guarded by
location.
It is located out of the way behind some equipment.
The dead end catwalk is not a working area and not a travelway.
There are three large water hoses
t come down and block the
access to the V-belt drive"
These water hoses are located in
such a way that you have to "make an
fort" and "ilmost get down
on your hands and knees" to get under them.
When the plant is in
operation no one would go to the area where the V-belt drive is
located because they would be drenched by a high pressure spray
of water that is used to wash the
f the bottom of a
conveyor belt that is located just above the area in question.
If the plant had been operating the inspector would not have been
in the area of the V-belt drive because of the noise and high
pressure water spray coming down in
area.
In addition, the
inspector had to stoop down under the water hoses to gain access
to the dead end catwalk.
On cross examination Mr. Baun stated that if there was a
need to make a repair in the area of the V-belt drive, he would
put a man in the area but only
ter the equipment was deenergized and locked out.
The men are
ovided locks which they
use to lock out equipment.
The man mak ng the repairs "holds"
the
to the lock he is using so no other person can unlock
the
and start the equipmen
Findings and Reasons for Decision
The
Mine Safety and Health Review Commission in
Secretary of Laborv v. Thompson Brothers Coal Company, Inc., 3
MSHC 1571 construed the guarding requirements of§ 77.400(a), a
surf ace
ning standard containing language
entical to
§ 560140010
The Review Commission
t in order to establish a prima f acie case of a violation
this identically
worded s
d, "the Secretary of Labor must
ove: (1) that the
ci
machine part is one specifically listed n the standard or
is "similar" to those listed~ (2) that the part was not guarded;
and (3) that the unguarded part "may be contacted by persons" and
"may cause injury to persons."
With respect to this later
Commission stated:

(third) requirement the Review

T
standard requires the guarding
machine parts
only when they "may be contacted" and "may cause in-

967

jury." Use of the word "may" in these key phrases introduces considerations of the likelihood of the contact
and injury, and requires us to give meaning to the
nature of the possibility intended. We find that the
most logical construction of the standard is that it
import? the concepts
reasonable possibility of contact stemming from inadvertent stumbling or falling,
momentary inattention, or ordinary human carelessness •••
Applying this test requires taking into consideration
all relevant exposure and injury variables, ~'
accessibility of the machine parts, work areas, ingress
and egress, work duties, and as noted the vagaries of
human conduct. Under th±s approach, citations for inadequate guarding will be resolved on a,case-by-basis.
In the present case, I accept and credit the testimony of
Mr. Baun with regard to the inaccessibility of the V-belt drive
while the plant is in op~ration.
I find the Secretary failed to
carry its burden of establishing a reasonable possibility 6f
contact with the moving machinery in question. Although the
Secretary produced some speculation on this point no persuasive
evidence was produced to establish that anyone would ever be near
the V-belt drive while it was in operation.
My finding that a violation of the safety standard was not
established is also supported by the fact that no evidence was
produced to establish that the metal bar or railing was not in
place at the time the equipment was last in operation. Without
such evidence no violation can be established in view of the
inspector's testimony that as long as this guard or railing was
in place the V-belt drive was protected by location. The
inspector also found t
violation abated when this piece of
metal rail was again welded back in the same place where it had
broken looseo
On questioning the mine inspector in an attempt to determine
when the metal bar may have broken loose it became obvious that
the inspector made no attempt during his inspection to determine
the answer to this issueo Thus a finding that the railing was
not in place at the time
plant was last operated would be
bas
on mere speculation rather than evidenceo
Mr. Baun offered into evidence the facilities last periodic
inspection report covering the area where the V-belt drive was
located" This report did not note anything unusual about the
guard railing in question"
Further Findings and
Conclusions of Law
1. Respondent is subject to provisions of the Federal Mine
Safety and Health Act in the operation of its Sanger Pit and Mill
facility.

968

2. The undersigned ~dministrative Law Judge has jurisdiction over the parties and the subject matter of thi&
proceeding.
3. On September 10, 1985 a federal mine inspector conducted
an inspection of respondent's rock and sand processing facilities
located at Sanger, Fresno County, California.

4.

Respondent is a small operator.

5.

Respondent has a good history.

6.

Respondent demonstrated good faith.

7. The Secretary failed to establish a reasonable
possibility of contact with the moving machine part.
8. The violation of 30 C.F.R. § 56.14001 was not
established.
Accordingly, based on the findings of fact and conclusions
of law herein I enter the following:
ORDER
Citation 2361739 and all penalties therefor are vacated.

~ Cdtz·

Aug t F. Cetti
Administrative Law Judge
Distribution~

Marshall P. Salzman, Esq., Office of the Solicitor, U.S.
Department
Labor, 11071 Federal Buildingu 450 Golden Gate
Avenue, San Franciscou CA 94102 (Certified Mail)
Sanger Rock & Sand 1 Mr. W. A. Baun, President, P.O. Box 626,
Clovis, CA 93612 (Certified Mail)
/bls

969

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

MAY 261987

333 W. COLFAX AVENUE, SUITE 400
DENVER. COLORADO

80104

CIVIL PENALTY

SRCRETARY OF LABOR,
MINF SAFFTY AND HEALTH
ADMINISTRATION (MSH~),
Petitioner

Docket No. CE~T 85-109
A.C. No. 34-01087-03501

TRUCKING COMPANY,
Respondent
DECISIO~

Before:

J3~

&I

C F
K~LLEY

PROCFEDI~G

AFTER REMAND APPROVING SFTTLEMENT

Judge Morris

This is a civil penalty proc
ing initiated by the
petitioner against respondent in accordance with the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seo. The civil
'penalty sought here· is for the violation oi a mand~y standard
promulgated pursuant to the Act.

Prior to a hearing the parties filed a motion s
approval of proposed settlement.

ing

Citation 2218839 alleges a violation of 30 C.F.R. § 48.25{a).
An original assessment of $400 was proposed.
The parties now seek a decision
assessing a penalty of $1000

affirmin~

the citation and

In support of their motion to approve the settlement the
parties have submitted information relating to the statutory
criteria required for assessing civil penalties as contained in
30 u.s.c. § 820(i).
I find the proposed settlement is reasonable and in the
public interesto
It should
approved~

Accordinglyv I enter the following:
ORDER

1.

The settlement is approved.

2.

Citation 2218839 is affirmed.

3.

A civil penalty of $100 is assessed.

Law Judge

970

Distribution:
Allen Reid Tilson,
., Office of the Solicitor, U.S. Department
Labor, 525 G~iffin Street, Suite SOl, Dallas, TX 75202
(Cert.Lf ied Mail)
K
H

l 2y ;1·ruck i n3'

e-n, OK

74939

ny, Mr. Curtis Kelley, Owner, H C 63, Box 10,
(Certified Mail)

/bls

971

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

.May 27, 1987

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. PENN 87-104
A. C. No. 36-00926-03671

v.

Homer City Mine

HELEN MINING COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

The Solicitor has filed a motion to approve settlement of
the violation involved in this cas·e. ·The originally assessed
amount was $1,000 and the proposed settlement is for $500.
The subject order was issued for a violation of 30 C.F.R.
75.400 because combustible materials, float coal dust and loose
coal, were permitted to accumulate along the Number 4 belt conveyor. The loose coal had accumulated under the belt and belt
roller for a distance of approximately 600 feet and was 4 to 18
inches deep. Float coal dust in the belt entry extended a distance of approximately 1,700 feet. The Solicitor represents that
a reduction from the original assessment is warranted for the
following reasons:
~

The special assessment of this violation indicated that this violation could have contributed to the propagation of a fire or an
explosion" Float coal dust in the belt entry
extended a distance of approximately 1,700
feet. The bottom belt rollers could have
become overheated and provided an ignition
source for the accumulations. Further investigation into the matter revealed that the
Assessment Office did not take into account
the modification MSHA Inspector William
McClure made with reference to the description of the condition. Further conversations
with this inspector have revealed that the
condition was not as grave as it has been
assessed. The modification and the inspector
have revealed that approximately 600 feet of

972

the 1,750 feet of the loose coal accumulations between Number 20 to Number 22 marker
and from the Number 1 marker to Number 18
mark~r was [sic] damp to wet.
Additionally,
70 feet of the 150 feet of float coal dust
outby the Number 18 marker was [sic] damp to
wet. Inspector McClure has stated that the
remainder of the accumulations was not completely dry but in a damp to dry condition.
He also checked for hot rollers and found not
[sic] hot rollers. He checked for electrical
violations and found no electrical violations
in the area. He believed that the conditions
in the belt entry were generally of a damp
nature. Accordingly, the propagation of a
f i re or an exp,, o s i on was not prob ab 1 e •
The Solicitor is to be commended for her comprehensive
explanation.

In light of the foregoing, I accept the Solicitor's representations and approve recommended settlement. I further note
that the settlement amount remains~substantial.
Accordingly, the motion to approve settlement is GRANTED and
the operator is ORDERED TO PAY $500 within 30 days of the date of
this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution
Covette Rooney 9 Esqo 0 Office of the Solicitor? U. S. Department
of Labor? Room 14480-Gateway Building; 3535 Market Street,
Philadeiphia 9 PA 19104 (Certified Mail)
Ronald B. Johnson, Esq., Volk, Frankovitch, Anetakis, Recht,
Robertson & HellersteJt, 3000 Boury Center, Wheeling, WV 26003
(Certified Mail)
Lynn A. Harding, Safety Director, Helen Mining Company, RD #2,
Box 2110, Homer City, PA 15748 (Certified Mail)
Michael H. Holland, Esq., UMWA, 900 15th Street, N.W.,
Washington, DC 20005 (Certified Mail)
I gl

973

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 281987
CIVIL PENALTY PROCEEDINGS

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

Docket No. KENT 87-44
A.C. No. 15-13508-03515

v.
Docket No. KENT 87-45
A.C. No. 15-13508-03516

TRIPLE ELKHORN MINING
COMPANY,
Respondent

No. 2 Surface Mine

DECISION APPROVING SETTLEMENT
Appearances:

Carl W. Gerig, Jr., Esq., Office of the
Solicitor, U.S. Department of Labor, Nashville,
Tennessee, for the Petitioner;
Mr. Travis E. Miller, President, Triple Elkhorn
Mining Company, Harold, Kentucky, for the
Respondent.

Before:

Judge Melick

These cases are before me upon petitions for assessment
of
1 penalty under Section 105(d) of the Federal Mine
Safety and Health Act of 1977 (the Act).
At hearing, Petitioner
filed motions to approve settlement agreements and to dismiss
these cases. A reduction in penalties from $1,866 to $1,500.
was proposed.
I have considered the representations and documentation submitted, and I conclude that the proffered settlements are appropriate under the criteria set forth in Section
llO(i) of the Act.
I

WHEREFORE, the motion for a oroval of sJttlement is
GRANTED, and
is ORDERED that
spondent p1y penalties of
$1,500 within 30 days of th1
r.

orf

I '
I

\_/'v'

.··"'-.I

'

"''

\_

\!

'!

i

i '

I.

'

\)
\!

\ I

J

974

I

•

s-1_.,/~---

Garv MG'lick
\, J
Admlnistrati ve ~ Judge

Distribution:
Carl w. Ger , Jr., Esq.,
of the Solicitor, U.S.
Department of Labor, 280 U.S. Courthouse, 801 Broadway,
Nashvil , TN 37203 (Certif
Mail)
Mr. Travis E. Miller, President, Triple Elkhorn Mining
Company, P.O. Box 520, Harold, KY 41635 (Certified Mail)
/fb

975

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE O,F ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 281987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 87-58
A. C. No. 15-07295-03502
Martiki Surf ace

v.
WILMON MOORE d/b/a BIG BLUE
TRUCKING,
Respondent

DECISION APPROVING SETTLEMENT
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
Wilmon Moore, Lovely, Kentucky, pro se.

Before:

Judge Melick

This case is before me upon a petition for assessment
of civil penalty under section 105·(d) of the Federal Mine
Safety and Health Act of 1977 (the Act) . At hearing Petitioner filed a motion to approve a settlement agreement and
to dismiss the case. A reduction in penalty from $450 to
$150 was proposed.
I have considered the representations
and documentation submitted in this case, and I conclude
that the proffered settlement is appropriate under the
a set forth in section llO(i) of the Act.
WHEREFORE, the motion for approval of sett ement is
GRANTED, and it is ORDERED that Respondent pay : penalty of
$150 within 30 days of this order.
I
\

~)./ ((lv. ''.\' /J~

, . el1ck / "
IGary
Admin strati e Law Judge
.

I
I

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, u. s. Department of Labor, 801 Broadway, Rm. 280, Nashville, TN 37203
(Certi ed Mail)
Wilmon Moore, Owner, Big Blue Trucking, HC 67, Box 60, Lovely,
KY 41231 (Certified Mail)
yh

976

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

MAY 291987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) /
ON BEHALF OF
JOSEPH G. DELISIO, JR.,
Complaina·nt

~

DISCRIMINATION PROCEEDING
Docket No. PENN 86-83-D
MSHA Case No. CD 85-9
Mathies Mine

v.
MATHIES COAL COMPANY,
Respondent
SUPPLEMENTAL DECISION APPROVING SETTLEMENT
Before:

Judge Koutras
Statement of the Case

On November 21, 1986, I rendered a decision in which I
concluded that the respondent violated section 105(c} (1) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 815(c) (l} by unlawfully interferring with the complainant's
right as a representative of miners to accompany federal
inspectors during inspections of the mine.
To remedy the vio_ation; I ordered the respondent to permit the contestant to
dr
his private automobile to the mine portal where inspecs normally beg
or;
the alternative, provide him with
company transportation underground to that location, 8 FMSHRC
1772, 1837 (November 1986).
Subsequent to the issuance of my decision, MSHA filed a
"Request for Clarification" of
remedial order.
Since my
jurisdiction terminated upon the release of my decision, I
declined to rule on the request, and ref
it to the
Commissiono
In an order issued on December 30, 1986, the
Commission stayed the running of the 40-day
iod within
which my decision would have become final, and directed the
respondent to respond to MSHA's request for cl
fication.

977

On January 2, 1987, MSHA filed a supplement to its request
for clarification, and on January 7, 1987, the respondent filed
its response. Thereafter, on February 3, 1987, the Commission
issu~d another order remanding this matter to me for the purpose of ruling on MSHA's request, 9 FMSHRC 193 (February 1987).
In its remand, the Commission stated as follows at 9 FMSHRC 195:
This matter is remanded to the judge to rule
upon the request for clarification. The judge may
conduct such expedited proceedings as may be
necessary for purposes of his ruling. Any party
dissatisfied with the judge's further ruling may
timely petition the Commission for review of the
decision as clarified or amended.
In compliance with the Commission's remand, I scheduled
a hearing in Pittsburgh, Pennsylvania, on March 12, 1987, to
afford the parties an opportunity to be heard on MSHA's
clarification request. However, on March 9, 1987, MSHA's
counsel advised me that the parties reached a settlement on
the remedial dispute in question, and the hearing was cancelled
to afford the parties an opportunity to file their settlement
proposal with me for my review and appropriate disposition.
On March 16, 1987, the parties confirmed their proposed
settlement, and they filed a Memorandum of Understanding
executed on February 25, 1987, by Mr. Edmund Baker, General
Manager
the Mathies Mine, Mr. DeLisio, and Mr. Ronald
Stipanovich, President, UMWA Local 2244. The pertinent terms
of the settlement are as follows:
Mr" DeLisio 1 s daylight shift starting and
ending times at the Thomas Portal will be changed
to 7:30 aomo and 3:30 porn.
The change in the
daylight shift times will apply only to Mr. DeLisio
his capacity as the designated miner for walkaround inspections. The change would not be applicable should the mine examiner 1 s job at the Thomas
Portal be filled by some other miner who is not the
designated miner.
Mro DeLisio will make a good faith effort to
promptly begin and proceed with his underground
travel.
The Company will make a good faith effort
to minimize traffic on the haulage line during the
7:30 to 8:00 a.m. period.
It is anticipated that
such efforts by both partie~ will enable Mr. DeLisio,
under normal conditions, to reach the Linden Portal
in time to begin the walkaround with the federal
inspector.

978

The
t adjustment for Mr. DeLis
will be
subject to a 90 calendar day trial
At
any time during the tr
period either party may
terminate the shift adjustment and this understanding.
Following the tr 1 period if both parties
are in agreement with this agreement then it will
become binding.
The tr
period will
in with
Mr. DeLi
's first
ight shift after confirmation of
s understanding.
In view
the fact that the settlement agreement was
conditioned on the completion of a 90-day tr
period,
which time either party could terminate Mr. Delisio 1 s adj
work schedule and request a further hearing
the matter, I
issued a Stay Order on March 27, 1987, staying further disposition of this case in
to allow the 90-day trial period
to run its course.
scussion
The 9
trial period has now been completed, and I
have heard nothing further from the parties. After careful
consideration of the terms
the settlement between the
parties with respect to the remedial aspects of my orig
decision and order of November 21, 1986, I conclude and find
that it ref
ts a reasonable resolution of the dispute, and
I see no reason why it s
not be approved.
In view of the
tion, MSHA's previous
filed Motion for
Clar if
CONCLUSION AND ORDER
The
this matter
fully comp
view of the
request

agreement entered into by the parties
APPROVEDc
The parties are JOINTLY ORDERED to
the terms of the settlement agreement.
In
l of the settlement, the March 12, 1987,
ies to lose the record
this case IS

GRANTED~

979

Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Carl H. Hellerstedt, Jr., Esq., Volk, Robertson, Frankovitch,
Anetakis & Hellerstedt, Three Gateway Center, Sixth Floor East,
Pittsburgh, PA 15222 (Certified Mail)
/fb

980

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 291987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 86-226
A.C. No. 36-00845-03503

v.

'

'Cambria Slope No. 33
CHARLES J. MERLO,
INCORPORATED,
Respondent
ORDER OF DISMISSAL
Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of
civil penalty filed by the petitioner against the respondent
pursuant to section llO(a)
the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 820(a) ~ seeking a civil penalty assessment in the amount of $30 for an
leged violation
of mandatory safety standard 30 C.F.R. § 77~1605(d), as stated
in section 104(a) Citation No. 2688979, served on the respondent
on May 16, 1986.
The respondent filed a timely answer and notice of contest,
and the case was scheduled for a hearing on the merits in
Indiana, Pennsylvania, on May 28, 1987.
However, by motion
filed with me on May 15, 1987, pursuant to Commission Rule 30,
29 C.F.R. § 2700.30 1 the petitioner seeks approval of a settlement of the case.
The petitioner also seeks my approval of a
proposed modification
the citation to substitute and name
Beth Energy Mines, Inc., as the responsible party and respondent
for the alleged violation in question.
Discussion
The petitioner proposes to settle this matter with no
civil penalty assessment payment by the respondent Charles J.
Merlo, Inc.
In support of the motion, petitioner's counsel
states that during the inspection the inspector observed that

981

respondent's Caterpillar Dozer Model D-9H, Serial Number 9014013,
did not emit an audible warning and that the directional lights
in the front and rear did not function.
However, counsel submits that the responsibility for the alleged violation lies
with the Beth Energy Mines, Inc.
Counsel states that the
Cambria Slope Preparation Plant, the site inspected, was owned
and operated by' Beth Energy Mines, Inc., and while it leased the
dozer from Charles J. Merlo, Inc., on a month-to-month basis, it
had exclusive control of the dozer for over 4 years. Further,
the lessor and
ssee had an arrangement whereby Charles J.
Merlo, Inc. would repair the dozer when a problem was reported
by Beth Energy. Beth Energy had not advised Charles J. Merlo,
Inc. of the defective warning device and lights nor had it
requested repairs be performed. Charles J. Merlo, Inc., therefore, had no duty to correct the defects. Moreover, at the
time of the inspection, the equipment was being operated by
Tom Cochran, an employee of Beth Energy. No Charles J. Merlo,
Inc. employees were exposed to the hazard.
Conclusion
On the facts of this case, it seems clear to me that the
respondent is not the party responsible for the alleged violation. Under the circumstances, I find no basis for approving
the proposed settlement which provides for no civil penalty
assessment payment by the respondent.
To the contrary, I conclude and find that the respondent should be dismissed as the
responsible party in this proceeding, and I will treat the
petitioner's motion as a motion to withdraw its civil penalty
proposal against Charles J. Merlo, Inc.
The respondent is free
to institute a new civil penalty proceeding against Beth Energy
Mines, Inc., for the alleged viol2tion in question.
ORDER
The petitioner's proposed civil penalty assessment filed
against the respondent Charles J. Merlo, Inc., is deemed to be
withdrawn, and this proceeding is dismissed.

Distribution:
Therese I. Salus, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Charles J. Merlo, Incorporated, R.D. 1, Box 88A, Mineral Point,
PA 15942 (Certified Mail}
/fb
982

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 2 9 '987
CONTEST PROCEEDINGS

JIM WALTER RESOURCES, INC.,
Contestant

Docket No. SE 86-105-R
Order No. 2811664; 7/1/86
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Docket No. SE 86-106-R
Order No. 2811667~ 7/8/86
No. 5 Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

.

CIVIL PENALTY PROCEEDING
Docket No. SE 87-8
A. C. No. 01-01322-03648
No. 5 Mine

JIM WALTER RESOURCES, INCo,
Respondent
DECISION
Appearances:

R. Stanley Morrow, Esq. and Harold D. Rice, Esq..,.,
Birminghamv Alabamav for Jim Walter Resources, Inc.;
William Lawsonr Esq.v Office of the Solicitoru
u. s. Department of Labor, Birminghamu Alabama for
Secretary of Labaro

Before~

Judge Weisberger
STATEMENT OF THE CASE

The Secretary 1 s Petition for Civil Penalties for alleged
violations, by the Mine Operator (hereinafter called Respondent)
of 30 CoF.R. § 75.500(d}v has been consolidated with the companion Notices of Contest filed by the Respondent.
Pursuant to
noticev the case was heard on March 3, 1987, in Birmingham,
Alabama. Carl Earlyu William Vann, and William Meadows testified
for the Secretary (hereinafter called the Petitioner). Charles
Stewart testified for Respondent. At the hearing, Petitioner
made a motion that the Notice of Contest, SE 86-106, be dismissed
on the ground that the Order contested, Number 2811667, was
vacated by the Mine Safety and Health Administration. This
motion was not objected to by the Respondent.

983

Petitioner filed its Post Hearing Brief on April 23, 1987,
and Respondent filed its Brief on May 4, 1987. Respondent filed
its Reply Brief on May 11, 1987. Petitioner did not file any
Reply Brief.
ISSUES

1.

Whether Respondent violated 30 C.F.R §

75.500(~).

2. Whether the crosscuts, in which nonpermissible electrical
equipment were located, were "the last crosscut" as that term is
used in section 75.SOO(d}, supra.

3. If Respondent violated 30 C.F.R. § 75.SOO(d), was the
violation caused by its "unwarrantable failure."
REGULATORY PROVISIONS

30 c.F.R. § 75.SOO(d} as pertinent, provides as follows:
"All other electric face equipment which is taken into or used
inby the last crosscut of any coal mine •••• , shall be permissible."
STIPULATIONS

1.

The operator is the owner and operator of the subject

mine.
2. The operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977 (Act).
3o

The Administrative Law Judge has jurisdiction of this

4o

The MSHA Inspector Q who issued the subject citation, ·was

caseo

a duly authorized representative of the Secretary.
So

proper

A true and correct copy of the subject citation was

served upon the operatoro

60 Imposition of a penaltyF in this case, will not affect
the operator's ability to do business.
7o

The operator 1 s size is medium.

8. If it be found that a violation of 30 C.F.R § 75.SOO(d}
occurred as alleged, Order 2811664, then the violation is to be
considered to be "significant and substantial.~
9. The equipment identified in Order Citation Number 2811664
were nonpermissible.

984

FINDINGS OF FACT AND CONCLUSIONS OF LAW
On July 1, 1986, a nonpermissible distribution box, at
Respondent's Number 5 Mine, was located in the last crosscut
connecting number 2 and number 3 entries in the number 8 section.
(See F, Exhibit G-2.) Although there were two open crosscuts
further inby, they were between entries 1 and 2, and 3 and 4,
respectively.
(See A and H, Exhibit G-2.) There was no crosscut
connecting entries 2 and 3 which was further inby the crosscut in
which the distribution box was located.
Respondent cites 30 C.F.R. § 75.200-7(iii)v 30 C.F.R.
75.31-3(a), and 30 C.F.R. § 75.302(a), as the only regulations,
aside from the one at issue, that contain the term "last open
crosscut." Respondent, in essence, argues that these sections
delineate the parameters of that term.
In this connection, it is
noted that pursuant to 30 C.F.R. § 75.301 and 302, air is tested
in number l and number 4 entries respectively, outby crosscuts A
and Hv (labeled on Exhibit G-2), as these crosscuts are considered
to be last open crosscuts within the meaning of section 75.301,
supra, and section 75.302, supra, as they separate intake and
return air entries.

§

It appears to be Respondent's position, based upon these
sections, that the last crosscuts inby the face, which separate
intake and outtake entries, labeled A and H, on Exhibit G-2, are
the only crosscuts to be considered to be "the last crosscut" for
purposes of section 75.SOO(d), supra.
I have considered Respondent's argumentu but find it lacking
_ merit.
I find that the regulatory sections cited by Respondent
de not define the phrase "last crosscut." These sections merely
i
cate a reference to "the last open crosscut" where certain
actions are to be performedv or certain devices are to·be used.
It
is unduly restrictive to hold that the identification of "the last
open crosscut" for the purposes set forth in the sections cited by
Respondentp mandates' identification of the same crosscut for the
purposes enumerated in section 75o500(d)u supra.
Insteadr I haves been guided by the Congressional intent in
promulgating section 318(i)u of the 1977 Mine Actu 30 U.S.C"
§ 801 et seq.r whose language is repeated i~ section 75.500(d),
supra" Congressional intent is expressly stated in section
318(i) p supraf which provides, in essence, that only permissible
electrical equi~ment are to be used in the last open crosscut "to
assure that such equipment will not cause a mine explosion or
mine fire • . . • " Respondent, in essence, argues that because
the intent of section 75.SOO(d), is to minimize the hazard of a
methane ignition, nonpermissible equipment is precluded only in

985

crosscuts A and H, connecting fresh air intake to the return,
(see Exhibit G-2) as only these crosscuts are exposed to methane
laden airo
In support of its position~ Respondent cites testimony to the effect that most methane is liberated at the face in
the cutting operation, and then travels through crosscuts A and H
and down return entries 1 and 4 outby the face (see Exhibit G-2}.
Thus Respondent argues that methane laden air does not enter
crosscut F in which the nonpermissible equipment was located (see
Exhibit G-2)o
Howeverv according to the uncontradicted testimony of William
Vannv a Federal Mine Safety Health Administration Ventilation
Speci istr methane gas is common in the crosscut in which the
distribution box was located.
It was also the uncontradicted testimony of the Federal Mine Inspectorv Car~Early, that 30 percent of
the timer that he has tested for methane in that crosscut, there
has been more than 1 percent of methane which is in excess of the
allowed amounto
(Tr" 31, 74.) The testimony of Vann and Early
tends to establish that interruption of a mine curtain placed in
the number 3 entry outby the crosscut in which the nonpermissible
equipment was located, would result in neutral air in that crosscut
allowing methane to accumulateo Accordingly, to hold that the
crosscut in which the distribution box was located, is other than
the last crosscut, would clearly lessen the assurance against a
ne explosion or fireu and would accordingly be violative, of the
expressed purpose of section 318Ci)v supra.
Furthermore, Early,
Vann, and William Meadows, Supervisory Mine Engineer, employed by
Mine Safety and Health Administration, all testified, in essence,
that to their knowledge the only way that the crosscut in which the
distribution box is located is referred tov
as the last crosscut.
therefore f
section 75.500(d), was violated by having a
sible distribution box
the crosscut labeled F,
~n
s the J.ast crosscut between entries 2 and 3 and
the las~ rosscut
to in sect
75a500(d), supra.
The
ties have stipulated thatu on July lu 1986, there was
a nonpermiss
scoop charger being used.
Its location
icted ~n Exhibit G-2 as
ng in a crosscut between entries 3
2nd 4.
Van~ testified that the scoop charger was
the "last
crosscut as that crosscut extends from the brattice in crosscut
Cr
entries 1 and 2 up to the brattice in the crosscut J,
between entries 3
4
(see the yellow areas in Exhibit G-2).
However, Ear
has indicated
was in the the
n
fected area"
last crosscutr but that the crosscut in
which it was located was not the last open crosscut.
(Tr. 53.)
Meadows, in essence, indicated that a crosscut is a connection
between two entries.
(Tr. 129.) Essentially the same definition
is found in A Dictionary of Mining, Mineral, and Related Terms
(U.S. Department of the Interior, Bureau of Mines (1968)), which
defines crosscut as "a small passageway driven at right angles to

986

the main entry to connect it with a parallel entry or air course."
Accordingly, I conclude that the scoop charger was not in the
same crosscut where the distribution box was located, which has
been found to be the last crosscut. Rather, the scoop charger,
as depicted in Exhibit G-2, was in a crosscut between entries 3
and 4. Inasmuch as there were two other crosscuts between entries
3 and 4 inby the face, I conclude that scoop charger was not in
the "last crosscut."
Having found that section 75.SOOCd) was violated, I conclude,
on the basis of the Parties' stipulation, that such violation was
"significant and substantial." Petitioner maintains that the
violation of section 75.500(d), resulted from a "unwarrantable
failure" on the part of the Respondent. Respondent has stipulated
that the equipment in question was nonpermissible, and there does
not appear to be any dispute that the Respondent knew of the
actual location of the equipment in question. The only question
is whether or not the Respondent knew, or should reasonably have
known, that the nonpermissible equipment was located in the "last
crosscut." Charles C. Stewart, the Deputy Mine Manager at the No.
5 Mine, Respondent's only witness, testified that crosscuts A and
H, depicted on Exhibit G-2, which are the most inby crosscuts
between entries 2 and 3, and 3 and 4 respectively, each have air
from the face going through them. In contrast, "the crosscut, in
which the distribution box was located, has only intake air.
Stewart further testified that until July 1, 1986, the date the
instant citation was issued, the Respondent had never received any
other citation for nonpermissible equipment in crosscut F (Exhibit
G-2). Stewart testified that he did not know the last crosscut
for permissible equipment. However, he stated specifically that
the last crosscut between entries 2 and 3 was labeled F (Exhibit
G-2), which is the crosscut in which the distribution box was
In addition, I find most persuasive the uncontradicted
testimony of Ear
, Vann, and Meadows that to their knowledge
°'last crosscut," is the only term to be applied to the crosscut in
which the distribution box was located, i.e., the last crosscut
between entries 2 and 3 inby the face.
I conclude that Respondent
should have known that the location of the nonpermissible distribution box was in the "last crosscut." Accordingly, I find that the
violation herein was caused by Respondent 0 s "unwarrantable
failure."
that

I conclude§ based on the rec~rd and the Parties stipulationv
violation herein was "significant and substantial."

t~e

I have considered all the crjteria set forth in section 110
of the Act. Specifically, I have taken into the account of the
high gravity of the violation, as indicated by the stipulation as

987

to its being "significant and substantial," and I have also taken
into account the high degree of negligence as discussed above in
my analysis of the issue of "unwarrantable failure."
Petitioner
had, in its petition for assessment of civil penalty, requested a
penalty of $1000.
However, inasmuch as I have found that the use
of a scoop battery charger, in the crosscut between the 3rd and
4th entry, did not constitute a violation of section 75.500Cd), I
find that a penalty of $500 is appropriate.
At the hearing, Petitioner indicated that Citation Number
2811667 was vacated by the Mine Safety and Health Administration
effective February 27, 1986.
Petitioner made a motion that the
Notice of Contest, contesting this order, SE 86-106-R be dismissed. Respondent indicated that i t did not have any' objection.
TherEfore, the Notice of Contest1 SE 86-106-R is DISMISSED.
At the hearing, at the conclusion of the Petitioner's case,
Respondent made motion to dismiss.
In light of my decision this
motion is DENIED~
ORDER
Based on the above findings of fact and conclusions of law,
Respondent is ORDERED to pay the sum of $500 within 30 days of
the date of this decision as a civil penalty for the violation
found wherein.
It is further ORDERED that Respondent's motion to dismiss is
DENIED.
It is further ORDERED that the Notice of Contest, SE 86-106-R,
be DISMISSEDo
It is further ORDERED that the Notice of Contest 1
SE 86-105-R be DISMISSEDo

Avram Weisberger
Administrative Law Judge
Distribution~

R. Stanley Morrowv Esqov Harold D. Ricev Esq.u Jim Walter
Resourcesu Inc. 1 Box C-79u Birmingham, AL 35283 (Certified Mail)
H. Gerald Reynolds, Esq., Jim Walter Corp.; 1500 N. Dale Mabry
Highway, Tampa, FL 33607 (Certified Mail>
William Lawson, Esq., U. S. Department of Labarr Office of the
Solicitor 1 Suite 201, 2015 Second Avenue, Northu Birmingham, AL
35203 (Certified Mail)
dcp

988
« Ll.S. GOVERNME;'1T PRINTING O:<FICE 19~7;

1~1-224/63005