March 1982
Commission Decisions
LAKE 79-9-M
VINC 75-247
HOPE 75-778
BARB 79-319-PM

Pg~ 415
Pg. 421
Pg. 422
Pg. 423

3-01-82 Climax Molybdenum & Boyles Bros. Drilling WEST 80-157-M
3-03-82 Patrick J. Mooney v. Sohio Western Mining CENT 81-157-DM
3-04-82 Peabody Coal Company
KENT 80-318-R
KENT 81-124-D
3-08-82 MSHA ex rel Isaac Burton, et al., v.
South East Coal Co.
3-08-82 Clinchfield Coal Co.
VA 81-92-R
3-10-82 FMC Corporation
WEST 80-495-RM
3-10-82 FMC Corporation
WEST 80-506-RM
KENT 80-216-D
3-15-82 Eastern Coal Corp.
3-16-82 Price River Coal Co. (Braztah,Corp.)
WEST 79-39
WEST 79-59
3-16-82 Price River Coal Co. (Braztah Corp.)
3-16-82 Price River Coal Co. (Braztah Corp.)
WEST 79-366
WEST 81-169-RM
3-18-82 FMC Corporation
WEST 79-165-M
3-19-82 Allied Chemical Corp.
3-26....,82 FMC Corporation
WEST 79-101-M
3-26-82 Consolidation Coal Co.
WEVA 80-289
PENN 82-13
3-29-82 U.S. Steel Mining Co., Inc.
3-29-82 North River Energy Co.
SE 82-21-R
3-30-82 Ozark Lead Co.
CENT 80-380-M

Pg. 434
Pg. 440
Pg. 447
Pg. 457

3-16-82 American Materials Corp.
3-16-82 MSHA & UMWA v. Old hen Coal Company
3-16-82 MSHA & UMWA v. Eastern Associated Coal
3-29-82 Carolina Stalite Co.
Administrative Law Judge Decisions

Pg. 465
Pg. 471
Pg. 477
Pg. 483
Pg. 486
Pg. 489
Pg. 493
Pg. 496
Pg. 503
Pg. 513
Pg. 520
Pg. 526
Pg. 533
Pg. 539

Commission

Decision~

MARCH

The following cases were Directed for Review during the month of March:
Secretary of Labor, MSHA v. United States Steel Corporation, Docket No.
KENT 81-136. (Judge Koutras, February 24, 1982).
Secretary of Labor, MSHA on behalf of Kenneth Bush v. Union Carbide
Corporation, Docket No. WEST 81-115-DM. (Judge Boltz, February 17, 1982).
Review was Denied in the following cases during the month of March:
Victor McCoy v. Crescent Coal Co~pany, Docket No. PIKE 77-71. (Judge Broderick,
Interlocutory Review of February 10, 1982 Order).
Secretary of Labor, MSHA v. Valley Rock & Sand Corporation, Docket Nos.
WEST 80-3-M, 79-385-M. (Judge Morris, January 28, 1982).
Secretary of Labor, MSHA on behalf of George Logan v. Bright Coal Company,
Docket No. KENT 81-162-D. (Judge Moore, Interlocutory Review of January 27, 1982
Order).
Secretary of Labor, MSHA v. Cleveland Cliffs Iron Company, Docket Nos.
LAKE 80-295-RM, 80-417-M. (Judge Broderick, February 1, 1982).
Secretary of Labor, MSHA v. Sierra Blanca Milling and Processing Company,
Docket No. CENT 80-337-M. (Judge Boltz, February 2, 1982).
Secretary of Labor, MSHA v. Valley Limestone Company, Docket No. LAKE 81-87-M.
(Judge Moore, February 12, 1982).
Secretary of Labor, MSHA v. Texas Industries, Inc., Docket No. CENT 79-60-M.
(Judge Morris, February 12, 1982).

413

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

March 16, 1982
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
'ADMINISTRATION (MSHA)
Docket No. LAKE 79-9-M

v.
AMERICAN MATERIALS CORPORATION
DECISION
This case involves the interpretation of 30 C.F.R. § 56.20-11, a
mandatory standard under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et~· (Supp. III 1979). That standard provides:
Areas where health or safety hazards exist that are not
immediately obvious to employees shall be barricaded, or warning
signs shall be posted at all approaches. Warning signs shall be
readily visible, legible, display the nature of the hazard, and any
protective action required.
The administrative law judge held that a violation of the standard
occurred because American Materials failed to post or barricade an area
over which high voltage powerlines passed. !/ For the reasons that
follow, we affirm his decision.
American Materials extracts and stockpiles sand and gravel at its
Harrison Pit and Plant. On April 26, 1978, during a fatal accident
investigation at the Harrison operation, a notice of violation of
section 56.11-20 was issued to American Materials. 3 FMSHRC 1527. The
accident occurred the previous day when a driver for a customer of
American Materials raised his truck bed near high voltage powerlines and
was electrocuted. 3 FMSHRC 1528.
Prior to April 25, 1978, between fifty and one hundred and fifty
customer trucks came onto the Harrison plant each day. Tr. 52. Of
these, ·some forty to fifty hauled coal before entering the plant. Tr.
122-25. Some of these truck drivers cleaned coal residue from their
truck beds by raising the truck bed and releasing the tail gate to dump
the coal. 3 FMSHRC 1527. American Materials tried to prevent drivers
from doing this to avoid contamination of its materials. Id. Company

!/

The judge's decision is report.\d!15 3 FMSHRC 1524 (1981).

82-3-10

employees instructed drivers observed cleaning their beds to do so off
the Harrison plant property. Id. Arrangements had not been made,
however to inform drivers at the entrance to the plant that they could
'
.
not clean their truck beds on the premises. ]:_/ Id.
Although not determinative as to whether or not there was a violation of the standard, the record reflects certain circumstances
concerning the death of the truck driver, Mr. Meyer. Meyer was found by
the judge below to have entered the Harrison facility on April 25, 1978,
to pick up some fill sand for the RBS Trucking Company, a customer of
American Materials. 3 FMSHRC 1527-28; Tr. 162. Fill sand is unwashed
sand used primarily to manufacture asphalt. Tr. 162. Meyer was not an
employee of American Materials; rather, he either owned a truck and
drove for RBS, or was an employee of RBS; in either case he was on
American Materials' premises to haul sand and/or gravel from American's
mine to RBS. 3 FMSHRC 1527. American Materials' records indicate that
Meyer had been on the property before the date of the accident to pick
up sand and gravel. Tr. 150-51. On April 25, Meyer was driving west on
a haulage road marked one-way east, when he pulled off the hard-surfaced
road on his left side. 3 FMSHRC 1527-28. Powerlines carrying 4,160
volts run parallel to this road, approximately 28-1/2 feet above the
ground. Id. The day was wet and windy, and Meyer parked on muddy and
unstable ground. Id.; Tr. 37. Meyer raised the bed of his tractortrailer to its ful~height of 28-1/2 feet, and left the cab of his
tractor. 3 FMSHRC 1528. As he stood on the frame of the tractor to
pull the tailgate release, a powerline energized the raised trailer bed,
and electrocuted Meyer. Id.
I.

The standard requires the posting of warning signs or the barricading of approaches to areas containing hazards that are not "immediately
obvious to employees." 3/ Meyer was not employed by American Materials.
Thus, the first question is whether under section 56.20-11, Meyer was an
"employee." To determine the meaning of "employee" we examine that term
in the context of the statute under which section 56.20-11 was promulgated,
regulations which implemented that statute, and the successor statute
under which the standard is currently enforced.
We note, as did the judge, that the Federal Metal and Nonmetallic
Mine Safety Act of 1966, 30 U.S.C. § 72+ et~ (1976)(repealed 1977),
used a variety of words when it referred to those persons for whom
protection was intended, including "workers in such mines", "employees
of the mine", "mine workers", and "employees." See sections 7(a),
8(a)(3), lO(c), 15, and 19(b) and (c) of the Metal-Nonmetallic Act.
None of these terms was defined in the Metal-Nonmetallic Act; nor did
]:_/
After the accident, and before the hearing in August 1980, American
Materials provided a waste area where truck beds could be cleaned~ 3 FMSHRC
1535.
ll The duty to comply with the stanaard is the operator's. The operator must barricade or post the hazardous areas. American Materials was
charged with the violation based on its failure to act, not on Meyer's
conduct.

416

that Act's legislative history refer to them. The Secretary of Interior
promulgated Part 56, which contains § 56.20-11, to implement the MetalNonmetallic Act. Part 56 contains health and safety standards for sand,
gravel, and crushed stone operations. In these regulations the Secretary
also used a variety of words to indicate to whom a standard applies,
~' "men", "persons" and "employees."
30 C.F.R. §§ 56.3-5, 56.6-90,
56.9-20. The Secretary defined the term "employee" as "a person who
works for wages or salary in the service of an employer."
30 C.F.R.
§ 56.2.
Neither the term "employees" in the Metal-Nonmetallic Act nor the
term "employee" as defined in Part 56 expressly limits protection to
employees of the mine operator or to any particular type of "employee."
The Secretary of Interior was required, however, to "develop ••• and
promulgate health and safety standards for the purpose of_ the protection
of life, the promotion of health and safety, and the prevention of
accidents in mines which are subject to this Act." 30 U.S.C. § 725(a)
(1976)(repealed 1977). This reflects a broad intent to protect those
working in mines regardless of the details of their employment contracts.
Thus, even under the Metal-Nonmetallic Act, Meyer might well be an
"employee" protected by the standard. We need not decide this because,
as the judge noted, the Metal-Nonmetallic Act was repealed in 1977 and
was replaced by the Mine Act.
Under the Mine Act, mandatory standards previously promulgated
under the Metal-Nonmetallic Act:
remain in effect as mandatory health or safety standards applicable
to metal and nonmetallic mines ... under the Federal Mine Safety
and Health Act of 1977 until such time as the Secretary of Labor
shall issue new or revised health or safety standards.
30 U.S.C. § 96l(a). This transfer section, as well as general principles
of statutory construction, require, as the judge stated, that one read
30 C.F.R. § 56.20-11 in harmony with the Mine Act. !!_/ In addition, the
legislative history of the Mine Act clearly shows congressional desire
to strengthen health and safety protection for metal and nonmetallic
workers: "[T]he Metal Act does not provide effective protection for
miners from health and safety hazards." Legis. Hist., at 596. See also
Legis. Hist., at 597. Thus, we hold that "employee" as used in section
56.11-20 should be interpreted in conjunction with "miner" under the
1977 Mine Act. 21 As the judge held, the protections afforded an

!!_/
See lA Sutherland, Statutory Construction, § 23.34, at 196 (4th ed.
1973). We reject American Materials' argument that the transfer provision could be read to indicate that regulations promulgated under the
Metal-Nonmetallic Act are to be interpreted as if that Act were yet
extant. Rather, we believe the legislative history amply supports the
conclusion that the provision was intended to prevent the wholesale
application of coal mine regulations to non-coal mines. H. Rep. No. 95312, 95th Cong., 1st Sess. 10, 14 (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 366, 370
(1978)("Legis. Hist.").
2./ "[M]iner means any individual working in a coal or other mine." 30
U.S.C. § 802(g)(Supp. III 1979).

417

employee under the standard extend to those working in mines. 3 FMSHRC
1533-34. This interpretation accords with the.protective purposes of
Part 56 as expressed in section 56.1, which mirrors the statement of
purpose in the Metal-Nonmetallic Act quoted above. ~/ We reiect
American Materials' arguments to the contrary.
The judge determined that Meyer was a "miner" entitled to the
protection of section 56.20-11. The evidence supports this finding.
Meyer had been on the Harrison facility previously to pick up and haul
materials. He was driving for RBS Trucking, a customer of American
Materials. He was on a haulage road that leads to a stockpile of fill
sand. American argues, however, that the Secretary presented no evidence of Meyer's.purpose on the property. Although there may be no
direct evidence such as a purchase agreement between Meyer and RBS or
between RBS and American Materials, the circumstantial evidence summarized amply supports the judge's finding that Meyer was on the
Harrison property to obtain materials. Indeed, at the hearing before
the judge, counsel for American Materials acknowledged that Meyer was
not a trespasser, but was "doing business" at the facility. Tr. 171""-72.
American also argues that Meyer was not engaged in activities that
can be considered mining functions. Meyer, however, was driving a
tractor-trailer, which was used to pick up and haul away mine products.
In our view, such haulage activity is an integral part of this mining
operation and we, therefore, affirm the judge's finding that Meyer was
"working in a .•• mine." See El Paso Rock Quarries, Inc., 3 FMSHRC 35,
37 (1981).
.
.
II.

The remaining question is whether the hazard presented by the
provision was "not immediately obvious." 7/ American Materials asserts
that the powerlines. were "very much in pl~in sight." Tr. 72. The judge
acknowledged that the powerlines were "readily observable" but held that
the hazard was not obvious:
The fact 'that the powerlines themselves were readily observable under normal conditions is not dispositive of the question
presented. The powerlines were sufficiently high above the ground
that the hazard posed by raising a truck bed or operating other
equipment in the area was not immediately obvious. The truck
operator had raised the bed of the trailer from inside the truck
cab. It was raining; the winds were gusting; and the operator of
the truck, upon getting out of the truck, was engaged in operating

2./

Section 56.1 provides in part:
The regulations in this part are promulgated pursuant to
section 6 of the [Metal-Nonmetallic Act] and prescribe health and
safety standards for the purpose of the protect.ion of life, the
promotion of health and safety, and the prevention of accidents in
sand ••• , gravel and crushed stone operations.
]_/
American Materials does not argue that no hazard existed; rather it
asserts that the hazard was obvious and, therefore, that the standard did
not apply.

418

the tailgate. There is no way to know [sic] whether operators of
trucks in the area would know about the high voltage of the wires
in question. In view of all of these factors, I conclude that this
was an area where a safety hazard existed which was not innnediately
obvious to a miner such as the subject truck driver and that
neither barricades nor warning signs were posted at all the approaches.
3 FMSHRC 1535.

We agree.

Approximately forty to fifty of the drivers who entered the Harrison
pit and plant each day had "double hauls" -- they delivered coal one way
and sand the other. Tr. 122-25. Some of these drivers cleaned coal
residue from their truck beds by raising the truck bed and releasing the
tail gate to dump the coal. 3 FMSHRC 1527; Tr. 52. "Evidence was found
in the area after the accident indicating that other truck drivers had
cleaned coal residue from their truck beds in the area where the accident
occurred." 3 FMSHRC 1532. Substantial evidence supports the judge's
finding that a driver might not notice whether these were power'lines, or
if he did, could not determine what voltage they transmitted. The facts
of this case clearly indicate how this hazard endangers health and
safety when truck drivers raise and lower their beds in the vicinity of
the powerlines. In short, although high voltage powerlines may be an
ubiquitous feature of the mining landscape, the deadly hazards associated
with them are not always evident. Such was the case·, at the Harrison
operation.
Accordingly, we hold that Meyer was protected by the standard and
that American's failure to post or barricade the unmarked powerlines
violated the standard. 8/ The decision of the admininstrative law judge
is affirmed.
-

\.

A: E Lawson

.

~/

Connnissioner

To the extent American Materials may be arguing it is not liable
for the violation because Meyer's conduct was unauthorized and aberrational, the Mine Act's imposition of liability regardless of fault,
requires us to reject its contention. Allied Products, Co. v. FMSHRC,
~ F.2d ~' No. 80-7934, 5th Cir. Unit B, Feb. 1, 1982.

419

Distribution
Linda Leasure, Esq.
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
David Wm. T. Carroll, Esq.
Smith & Schnacke
100 East Broad Street
Columbus, Ohio 43215

•.

"

420

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

March 16, 1982
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. VINC 75-247
VINC 75-249
VINC 75-250
VINC 75-251

and
UNITED MINE WORKERS OF AMERICA

IBMA No. 77-42

v.
OLD BEN COAL COMPANY
ORDER

The Secretary of Labor has filed a motion requesting dismissal
of its appeal in the above-captioned cases, which arose under the
Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et
~· (1976)(amended 1977)("the 1969 Coal Act").
The United Mine Workers
of America ("UMWA"), the other appellant in this case, concurs in the
Secretary's motion. Old Ben Coal Company has filed a response opposing
dismissal.
The Secretary and the UMWA are the only appellants, and both seek
dismissal. Granting the motion will not prejudice Old Ben as it was
the party that prevailed below. Dismissal preserves the scarce administrative resources available to the Commission and to the Secretary.
Furthermore, there are provisions in the 1977 Mine Act that are nearly
identical to the provisions of the 1969 Coal Act involved in this case,
and thus the question raised in these cases will probably arise in future
cases before the Commission. l/
Accordingly, we dismiss the abo
scheduling oral argument in these c

Our order

A. E. Ltwson, Commissioner

lf

We need not, and do not, decide that
matter of law.

~~se cases are moot as a

421
82-3-13

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

20006.

March 16, 1982
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) .

Docket Nos. HOPE 75-778
HOPE 75-807
HOPE 76-9
HOPE 76-10
HOPE 76=-il
HOPE 76-12

and
UNITED MINE WORKERS OF AMERICA

v.
EASTERN ASSOCIATED COAL CORP.

IBMA 77-37
ORDER

Eastern Associatea Coal Corporation has filed a motion to dismiss
the appeal of the United Mine Workers of America (UMWA) in the abovecapt ioned cases which arose under the Federal Coal Mine Health and
Safety Act of 1969, 30 U.S.C. § 801 et~· (1976) (amended 1977) ("the
1969 Coal Act"). The Secretary concurs with Eastern's argument that
its payment of penalties has mooted the issues. The UMWA does not, in
essence, contest Eastern's motion.
We are persuaded that.dismissal is warranted in these 1969 Coal
Act cases. The parties do not wish to pursue these cases. The time
period involved in the chain of violations has long expired, and Eastern
has paid the assessed penalties. In the interests of conserving scarce
administrative resources, we dec.li~e to decide these cases under these
circumstances. 1/ Eastern's dismissal motion is granted. We also vacate
our order for oral argument in this

Law~~ Commissioner

ll

We need not, and do not, reach the issue of whether these cases
are moot as a matter of law.

422

82-3-14

FEDERAL MINE SAFETY _AND HEAL.TH ~EVIEW COMMISSION
1730- K STREET NW, 6TK. FLOOR
WASHINGTON, D.C. 20006

March 29, 1982
Docket Nos. BARB 79~319-PM
SE 79-56-M
79-91-M
79-92-M
79-93-M
79-94-M
79-95-M
·79-85-M
79-87-M
79-114-M
80-35-M
80-37-M
80-44-M

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

DECISION
This civil penalty case is brought under the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 !:.!_~· (Supp. III 1979). On
review Carolina Stalite Company (Carolina Stalite) contests the judge's
finding that it is a mine subject to the 1977 Mine Act, his failure
to suppress evidence, and his conclusion that a citation can be
issued if an operator refuses entry to an inspector to conduct an
inspection. 1/ For the reasons set forth below, we hold that Carolina
Stalite's fa~ility is not a "mine" subject to the Mine Act. 2/ We
therefore reverse the judge's decision.
The essential facts are undisputed.

Carolina Stalite produces

~ light weight construction material, "stalite," from slate" ravel.

urchases t e s ate rom an a acen
uarr • The quarry is
owned and operated by an independent entity,- Young Stone Company
(Young Stone). There is no corporate affiliation between Carolina
Stalite and Young Stone, and no business relationship other than
that of vendor and purchaser. Young Stone mines, crushes and
delivers on its conveyor belts three-quarter inch slate gravel to
Carolina Stalite's premises. ~arolina Stalite stores the stone.
t then heat
ate ravel in rotary kilns to a
y
2,000 degrees fahrenheit. The ea process ng transforms
1/
These findings were made in an April 14, 1980, order denyingH
Stalite's suppression motion. The final decision on the merits of
the citations was issued on December 2, 1980. The decision incorporated the April 14 order and is reported at 2 FMSHRC 3509 (1981).
:l;_/
In light of our conclusion, we need not address the other
issues raised in this proceeding.

423

82-3-23

volume

l

Carolina Stalite subsequentlx:_ crushes, sizes to specifi9o use it primarily
to produce
masonary blocks. We previously have acknowledged that
interpretation is to be applied to the Act's
expansive definition of a mine." Oliver M. Elam, Jr., Co .. ,
FMSHRC
(VINC 78-447-P, etc., January 7, 1982). The inclusive
nature ~the Act's coverage, however, is not without bounds. In
this case, we conclude that Carolina Stalite's operations do not fall
within the Mine. Act's coverage.

~nd sells the material to manu

The Act classifies as mining, and therefore subjects to its
coverage, the extraction, milling and pre aration of minerals. 4/
Young Stone, rather
an aro 1na Stalite, is the entity engaged
in the actual extraction of the slate. Therefore, Carolina Stalite
is not engaged in "mining" in its classic sense. Young Stone also
crushes the slate that it extracts. Although the question is not
presented here, such crushing performed incident to extraction
would appear to comprise "milling", and therefore "mining", under
the Act. 5/ Again, however, Young Stone rather than Carolina
Stalite, performs this operation.
3/
"Bloating" is the practice of "[e]xpanding raw materials such as
clays, shale, perlite, slates, etc., by rapid heating to produce a
lightweight vesicular structure." U.S. Bureau of Mines, A Dictionary
of Mining, Mineral, and Related Terms 186 (1968).
4/
The Act does not further define the terms "milling of minerals"
or "work of preparing ••• minerals." Facially, these appear distinct
bases for jurisdiction. Conversely, "milling" and "preparation" can
be perceived as words used, in a loose sense, interchangeably to
describe the entire process of treating mined minerals for market.
This interpretation might better reflect the understanding of
these terms within the mining industry. A Dictionary of Mining,
Mineral and Related Terms (U.S. Bureau of Mines, 1968) at 707,
defines milling as including "preparation for market•" -Indeed,
it is easy to see how both words--milling and preparation--became
part of the 1977 Mine Act without connoting entirely separate processes. The Federal Metal and Nonmetallic Mine Safety Act of 1966,
30 U.S.C. § 721 et seq. (1976) (repealed 1977), spoke only in terms of
"milling" in itsdefinition of a mine, presumably because "milling" was
the common word used to describe the entire process of preparing noncoal minerals for market. In contrast, the 1969 Coal Act spoke only in
terms of "coal preparation," again presumably because this was the
common language used to -describe the processing of coal. Thus, we
believe the 1977 Mine Act's use of both terms signals that an expansive reading is to be given to mineral processes covered by the Mine
Act, rather than requiring a clear distinction between what is a
milling or a preparation process.
5/
The 1966 Metal-Nonmetallic Act covered mineral "milling". The
term was not further defined in the statute, but the Senate Committee
stated that the term "mine" was meant to "extend[] beyond mining in
the narrow and ordinary sense of the term, to the next sequential
stage to that of the related milling operation." S. Rep. No. 1296,
89th Cong. 2d Sess., reprinted in 1966 U.S. Code Cong. and Ad. News
2846, 2851.

424

Carolina Stalite's contact with the mineral at issue occurs only
after Young s·tone has extracted, crushed, sold and delivered the slate.
It is then that Carolina Stalite subjects the slate to its heat processing treatment. We find Carolina's treatment of the mineral to be
a manufacturing process that results in a product, rather than a
"milling" process under the Mine Act. The crushing and sizing of
the "stalite" that occurs after the heat processing is completed
are simply final steps in the manufacture of the product. As we
·did in Oliver Elam, we reject the notion that Congress intended to
subject to pervasive regulation of the Mine Act every business that
in some manner handles minerals.
We have examined the MSHA-OSHA Interagency Agreement, 44 Fed.
Reg. 22827 (1979), and the MESA-OSHA Memorandum of Understanding,
39 Fed. Reg. 27382 (1974). They provide no assistance in the
resolution of this case. These documents merely reflect the views
of the agencies as to their respective jurisdiction. Simply because
the agencies may agree between themselves as to which agency will
inspect a particular business establishment does not insulate their
determination from judicial review. MSHA's authority to regulate a
workplace is determined by the scope of the Mine Act's coverage, not
by its agreement with OSHA. To the extent that the agreements are
intended to provide guidance as to which statute will be enforced in
a particular situation, they are sorely deficient. They are replete
with exceptions, provisos, and internal inconsistencies. For example,
the agreements' definition of "milling" provides that "the essential
operation in all such processes is separation of one or more valuable
desired constituents of the crude from the undesired contaminants with·
which it is associated." In the present case, no separation of constituents occurs, yet MSHA claims jurisdiction.
We note that section 3(h)(l) of the Mine Act, regarding the
Secretary of Labor's determination as to what constitutes mineral
.
milling, does not come into play. That provision allows the Secretary
to determine which of his agencies will conduct inspections in cases
of dual or overlapping jurisdiction. Conf. Rep. at 3S; 1977 Ac.t Leg.
Hist. at 1316. That situation is not presente<;l here.
Accordingly, the decision of the administrative law judge is
reversed, the citations and orders vacated, and the petitions for
assessment of civil penalties dismiss

425

Commissioner Lawson dissenting:
A mine is defined by our statute, not by whether the operation
performed is "'mining' in its classic sense", and the determination by
the judge below that Carolina Stalite is a mine is clearly supported by
the express terms of the statute. _1'hat determination is buttressed by
the legislative history of the Act, judicial precedent, the Secretary of
Labor's recognition of the parameters of the Act, and the record evidence.
The statute· provides:
Sec. 3.

For the purpose of this Act, the term--

(h)(l) "coal or other mine" means
(A) an area of land from which minerals are extracted in nonliquid form or, if in liquid form,
are extracted with workers underground~ (B) private
ways and roads appurtenant to such area, and
(C) lands, excavations, underground passageways,
shafts, slopes, tunnels and workings, structures,
facilities, equipment, machines, tools, or other
property including impoundments, retention dams,
and tailings ponds, on the surface or underground,
used in, or to be used in, or resulting from,
the work of extracting such minerals from their
natural deposits in nonliquid form, or if in liquid
form, with workers underground, or used in, or to
be used in, the milling of such minerals, or the
work of preparing coal or other minerals, and
includes custom coal preparation facilities. In
making a determination of what constitutes mineral
milling for purposes of this Act, the Secretary
shall give due consideration to the convenience
of administration resulting from the delegation to
one Assistant Secretary of_all authority with
respect to the health and safety of miners employed at one physical establishment. (Emphasis
added).
The legislative history of the Act is also pertinent and instructive.
As the report of the Senate Committee on Human Resources states:
The Committee notes that there may be a need
to resolve jurisdictional conflicts, but it is the
Committee's intention that what is considered to
be a· mine and to be regulated under this Act be
given the broadest possible interpretation, and

426

it is the intent of this Committee that doubts
be resolved in favor of inclusion of a facility
within the coverage of the Act. (Emphasis added).
S. Rep. 95-181, 95th Cong., 1st Sess. (May 16, 1977 at 14; Legislative
History of the Federal Mine Safety and Health Act, Committee Print at
602.
Additionally, during the Senate floor debate Senator Kennedy
elicited from the Chairman of the Human Resources Committee, Senator
Williams, confirmation that, in granting the Secretary full jurisdiction
and authority to discharge his obligations, the Act covers" ... any
property or equipment whatsoever connected with or in proximity to
mines." (Emphasis added). 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 997 (1978).
Similarly, the Conference Report commented that coverage extends to
all" ••• surface facilities used in preparing or processing the minerals."
(Emphasis added). Joint Explanatory Statement of the Committee of
Conference, S. Conf. Rep. No. 95-461, 95th Cong., 1st Sess., 38 (1977),
reprinted in Legislative History of the Federal Mine Safety and Health
Act of 1977, at 1316.
It would therefore appear clear that Congress intended comprehensive regulation, and the inclusion under the 1977 Act as mines
of facilities other than those operat~d by the particular mine operator
actually engaged in extracting the coal or other minerals from the
earth. Marshall v. Stoudt's Ferry Preparation Company, 602 F.2d 589
(3rd Cir. 1979), cert denied,. 444 U.S. 1015 (1980). This recognizes the
obviously complex and diverse nature of the mining ind us.try, the various
facilities existing and required, especially by those operators without
their own preparation facilities, and the nature of mineral processing,
which often takes place in several stages, depending upon the contemplated use and the degree of processing required for a particular mineral.
The majority examines in some detail the MSHA/OSHA Interagency
Agreement and MESA-OSHA Memorandum of Understanding which conclude that
separation is an essential step in determining whether an operator is
milling. 1/ This contention would make the purity of the mineral in
· its natural state the measure of MSHA jurisdiction. Such a limitation
has no statutory foundation. Separation, a term not employed by the
statute, cannot therefore be construed as a necessary element of milling,
but merely as illustrative of one milling practice. In the mining industry,
the steps necessary to process a given mineral are dependent upon the
unique characteristics of the particular substance.

1./

The majority finds however, that these agreements, despite this
eclectic analysis, "provide(s) no assistance in the resolution of this
case."

427

While the usual mill in a metal mine will separate contaminants
from the mined mineral, such separation is often unnecessary in nonmetal
mines. A Dictionary of Mining, Mineral, and Related Terms (U.S. Bureau
of Mines, 1968), at page 707, defines •:millin~' as "the grinding or
crushing of ore." Additionally, "the term may include the operation ef
in va ueless or harmful constituents and
"
Id. at 707.
r c
e as "the methods employed to clean.,
J:!__rocess, and prepare
ores into the final marketable product."- Id.
at 866. Appeinlnt-:wauld thus au.pear to be engaged in both milling and
processing.
The Secretary has consistently interpreted "crushing", "sizing" and
"heat expansion" activities such as those carried on at the Stalite mill
as within the scope of the Mine Act. The Secretary's interpretation of
the statute he is charged with administering is entitled to special
weight under Commission precedent. Secretary of Labor v. Helen Mining Co.,
1 FMSHRC 1796 (1979), rev. on other grounds, Nos. 79-2537, 79-2518 (D.C.
Cir., February 23, 1982). In addition, although the majority correctly
notes that the MSHA-OSHA Interagency Agreement, April 17, 1979, (44 FR
22.827) is not dispositive of the issue before us, that agreement does
state that:
"Milling consists of one or more of the following
processes: .crushing, grinding, pulverizing, sizing,
concentratin~ washing, drying, roasting, pelletizing,
sintering, evaporating, calcining, kiln treatment,
sawing and cutting stone, heat expansion, retorting
(mercury), leaching, and· briqueting." · (Emphasis
added).
and is, at least to that limited extent, of interpretive assistance.
The Secretary of Labor also has the responsibility for determining
whether the Assistant Secretary of Labor for MSHA, or for OSHA, shall
have" ••• all authority with respect to the health and safety of miners."
Sec. 3(h)(l), supra. In any event, our jurisdictional concern is
answered by the statute and the Interagency Agreement is one aid in its
interpretation.
Finally, the precedents of those Courts which have interpreted the
Act provide assistance.
In Marshall v. Stoudt's Ferry Preparation Company, suora, the court
held that Stoudt's preparation plant, which processed material dredged
from a river bed and separated such into sand, gravel, and a "usable
anthracite refuse," was a "mine" as defined by the Act. Stoudt's purchased this dredged material from the mine operator who extracted it
from the river bed, and transported it both by front-end loader, and, as
here, by conveyor belt, to Stoudt's plant where processing was had and
the sand, gravel and anthracite refuse thereafter sold. That court,
citing the legislative history quoted above, held that:

428

"We agree with the district court that the
work of preparing coal or other mine,;rals is included within the Act whether or not extraction
is also being performed by the operator. Although
it may seem incongruous to apply the label "mine"
to the kind of plant operated by Stoudt's Ferry,
the statute makes clear that the concept that was.
to be conveyed by the word is much more encompassing than the usual meaning attributed to
it--the word means what the statute says it means.
Moreover, the record also establishes that
the company processes and sells the sand and
gravel it separates from the material dredged
from the river. We are persuaded, as was the
district judge, that in these circumstances, the
sand and gravel operation of the company also
subjects it to the jurisdiction of the Act as
a mineral preparation facility. (Emphasis
added)(602 F.2d at 592.)"
See also Cyprus Industrial Minerals Co. v. Federal Mine Safety and Health
Review Connnission et al., 664 F.2d 1116 (9th Cir. 1981); Harman Mining
Corp. v. FMSHRC No. 81-1189 (C.A. 4 198l)(unpublished); and Marshall v.
Tacoma Fuel Co., Inc., No. 77-0104-B, (W.D. Va. 198l)(Unpublished).
There is no dispute as to the essential facts in this case.
Carolina Stalite receives the slate, partially crushed into gravel form,
directly by conveyor belt from the innnediately adjacent quarry owned and
operated by Young. Stalite then stores this slate until, without
further preparation, it heats the crushed slate in rotary kilns to
approximately 2,000° Fahrenheit. As a result of that heating, the
volume of the slate is increased.
Heat processing or "bloating" is generally recognized as a common
method of processing several different minerals. See Mineral Facts and
Problems, (1975 edition, Bureau of Mines) at 256 and 785. The MSHA-OSHA
Agreement (supra) also includes "heat expansion" as a category of milling
processes, and its definition precisely parallels Stalite's heating or
bloating operation:
"Heat expansion is a process for upgrading material
by sudden heating of the substance in a rotary kiln
or sinter hearth to cause the material to bloat or
expand to produce a lighter material per unit of
volume."
The widespread use of the heat expansion process for several minerals,
coupled with the broad definition of mining, leads to the conclusion
that Stalite is engaged in the work of milling or preparing minerals as
a mine.

429

After this heat expansion preparation, Stalite crushes the now
bloated slate, and sizes it to the specifications required by its
customers. It then sells the slate ("stalite") 2/) which is use.d by
Stalite's customers to manufacture lightweight concrete masonry blocks.
The related process of coal preparation is also defined in section
3(i) of the Mine Act as including crushing and sizing activities; see
Chapter 27, "Mineral Processing" of 2 SME Mining Engineering Handbook
(Cummings and Given Ed., 1973) at 27.5-1, 5-2 which lists and discusses
crushing as a milling process. This lends additional support to the
finding of the judge below that Stalite was subject to jurisdiction
urider the Act, since the crushing and sizing were performed to upgrade
the product, and upgrading is an important component of a milling preparation process. (Cf. Oliver Elam Jr. Co., 4 FMSHRC 5 (1982), where
crushing was solely performed for convenience in loading.) 3/
Stalite further contends that its crushing merely takes place as a
final step in its manufacturing process and is not the type of crushing
associated with a milling preparation process. Stalite's subsequent
crushing of the slate, however, is not "milling", and therefore not
"mining", according to the majority. While Stalite does not perform the
primary crushing of the slate, minerals are often crushed more than once
during the milling process, and such secondary crushing as was done here
by Stalite, is a common process.
Much emphasis is also placed by the majority on Stalite's status as
an "independent entity", with "no corporate affiliation" or "business
relationship other than vendor or purchaser" between Young and Stalite.
If Stalite's operations were performed by Young on the latter's property,
there would be no question that the.crushing, sizing and heating or
bloating of the slate would constitute mining. Young's crushing of the
slate " •.• would appear to comprise "milling", and therefore "mining", ·
under the Act" according to the majority. But no reason is given by the
majority, nor does any appear obvious, why the change in ownership of
slate, and the location of the secondary crushing operation on the adjacent pro.p.er..ty of Stalite to which the slate is transported by conveyor
belt, converts this operation from mining to manufacturing. A change in
ownership of the mineral does not nullify the application or jurisdiction of the Act, nor does the majority cite any statutory justification for such a distinction, nor why, because Young rather than Stalite

]:_!

"Stalite" is an unregistered trade name used by appellant.
11 In the Elam decision the Commission affirmed the judge's finding
that a commercial dock facility was not a mine under the Act. In that
instance, roughly half of Elam's operations did not involve mineral
handling, and the work performed was the breaking and crushing, on some
occasions, of coal by Elam, solely for its own convenience in loading
the coal onto barges for shipment. Elam did not prepare coal for
customers, nor to their market specifications or particular uses, nor
did it separate waste from or add any material thereto.

430

is the corporate entity engaged in the actual extraction of the slate,
Stalite is therefore not subject to the Mine Ac.t. However, as the
legislative history of the Act, and (e.g.) Stoudt's Ferry, (supra)
confirm, whether or not extraction is being performed by the operator is
not determinative of whether the operation is a "mine" within the meaning
of the Act. As the Stoudt's court found, the mineral processing was
there, too, being performed by a party other than the extracting operator.
Stoudt's, the processor of the minerals it purchased, was nevertheless
found to be a mine operator, and its processing operation mining under
the Act.
The majority further errs in finding Stalite's treatment of the
slate to be the "final steps" in the manufacture of the ·product. As is
undisputed, the appellant's "stalite" is thereafter manufactured into
lightweight concrete masonry blocks by Stalite's customers.
The conclusory rationale of the majority that Congress did not
intend to" ••• subject to pervasive regulation of the Mine Act every
business that in some manner handles minerals" does not address the
issue presented. Rather, the crushing, sizing, and heating of the slate
constitutes milling and fits precisely into the definition of a mine set
forth in section 3(h) of the Act. We are not free to reject these
statutorily mandated criteria, nor to conclude, absent statutory support,
that Stalite's operations are outside the coverage of the Mine Act.
That conclusion is unsupported by the statute, the legislative history,
any judicial precedent or the facts.
I would therefore affirm the holding of the judge below, and dissent
from the majority's opinion herein. !±_/

A. E. Lawson, Commissioner

!±_/
Although the majority because of its holding does not reach the
denial of entry issue in this case, it is clear that this contention of
Stalite is without merit under our precedents and those of all courts
which have considered this issue, including the U.S. Supreme Court.
Donovan v. Dewey, 101 S.Ct. 2534 (1981).

431

Distribution
Lewis P. Hamlin, Jr., Esq.
William C. Kluttz, Jr., Esq.
Kluttz and Hamlin
P.O. Drawer 1617
Salisbury, North Carolina 28144
Linda Leasure, Esq.
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Joseph Kennedy
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

432

Administrative Law Judge Decisions

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

)

MAR 1 1982

)

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

)

CIVIL PENALTY PROCEEDING

)

Petitioner,

)

DOCKET NO. WEST 80-157-M

)

)

v.

MSHA CASE NO. 05-02256-05005

)

CLIMAX MOLYBDENUM COMPANY a Division
of AMAX, INC.,
and

)

MINE: Climax Open Pit

)
)
)

BOYLES BROS. DRILLING COMPANY,
Respondents.

)
)
)
)

~~~~~~~~~~~~~~~~~~~

Appearances:
Robert J. Lesnick, Esq., Office of the Solicitor
United States Department of Labor, 1585 Federal Building
1961 Stout Street, Denver, Colorado 80294
For the Petitioner
Charles W. Newcom, Attorney for Respondent, Climax Molybdenum
2900 First of Denver Plaza, 633 Seventeenth Street
Denver, Colorado 80202
Carl D. High, District Manager, for Respondent, Boyles Bros. Drilling Co.
15865 West 5th Avenue, Golden, Colorado 80401
Before: John A. Carlson, Judge
STATEMENT OF THE CASE

CITATIONS 331979, 331980 and 331982
This case arose out of an August 30, 1979 safety inspect ion of
respondent Climax's surface mining operation in Lake County, Colorado.
Three closely reiated citations, 331979, 331980, and 331982, were heard on
the merits. As to each of these, the chief issue to be decided is whether
a travelway standard published at 30 C.F.R. § 55.11-1 requires that Climax
furnish certain pieces of heavy mobile equipment with. flashers or with
flags attached to "buggy whip" antennae. That standard reads:
Safe means of access shall be provided and
maintained to all working places.

434

The matter was heard at Denver, Colorado under provisions of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (the
"Act"). The parties stipulated to jurisdiction. The petitioner seeks a
penalty of $106 for each citation.
FINDINGS OF FACT
Upon the entire record, the following findings of fact are made:
( 1) Respondent's open pit mine site includes approximately 10 miles
of two-way haulage roads with widths ranging from 100 to 150 feet.
(2) In ordinary operation, the mine runs 3 shifts per day using 45
miners per shift. Daily, 80 ,000 tons of materials are remov.ed and
transported over the haulage roads, chiefly in 120 ton trucks. Including
pickup trucks, some 45 vehicles are used on the site.
(3) Respondent also operates two heavy water trucks approximately 44
feet long and 12 feet high, and a Caterpillar number 988 B front-end loader
35 feet long and 13 1/2 feet high. These machines are operated on the
roads and the pit floors, and are the subject of the Secretary's citations.
The water trucks move at;. slow speeds to spread water to keep dus·t down.
(4) Respondent had equipped none of these 3 v'·ehicles with an
electrically operated flasher atop its highest part, or a "buggy whip"
antenna and flag to alert other vehicles of its presence.
(5) Respondent did equip its pickup service vehicles with flashers,
but no other vehicles, including its 120 ton trucks had either flashers or
flags. The pickup trucks measure approximately 6 1/2 feet at their
highest. Operator's eye level on the 120 ton trucks is about 14 feet 8
in.ches.
(6) Respondent had built berms along all open sides of its haulage
roads, including corners. These varied in height from a maximum of 12 feet
on the straight sections, declining to about 6 feet in curves.
( 7)
The roadways contained a number of curves' but these were laid
out to provide 200 yards of forward visibility. The single crest or
"hilltop" on the roads was flattened at the top and provided 80 to 100
yards visibility.

(8) To reduce the possibility of collisions between vehicles on its
roadways the respondent maintained and enforced the following safety
practices:
(a) All mine vehicles are painted with high visibility
paints.
(b) All equipment has conventional head and tail
lights for night operation.

435

(c) New operators and drivers are given two weeks
of training which includes instruction on speed limits
for varying conditions, equipment and areas. Speed
limits range downward from a maximum of 20 miles per
hour for unloaded trucks proceeding downhill. Climax
officials routinely check speeds with a radar gun.
(d) All vehicles are equipped with two-way radios
which place operators in contact with all other driver.E:.
and. a "base coordinator" who is informed of vehicle
movements.
(e) All vehicles are fitted with rear-view mirrors,
and heavy equipment with reverse alarms.
(f) On roadways, respondent has placed mirrors on
pPsts on the outer edges of the sharper curves.
(9) Climax experienced no collisions in its mine involving any of the
three vehicles cited, or any other large pieces of mobile equipment.
(10) All of these findings relate to conditions at the time of
inspection in this case.
DISCUSSION OF THE EVIDENCE
One may first question whether the cited standard, relating as it does
only to "safe access" to work places, was intended to have application to
warning devices on pieces of heavy mobile equipment. Review of the more
speci fie standards which appear as a part of 30 CFR § 55 .11 shows that all
have reference to ladders, stairs, walkways and similar fixed structures
over which miners could be expected to move. The standard at 30 C.F.R. §
55.11-25 does apply to mobile equipment, but merely prescribes the
structural requirements for fixed ladders mounted on the equipment itself,
presumably to assure to workers a safe access to elevat.ed cabs or other
work places.
For the purposes ot this decision, however, 30 CFR § 55.11 will be
assumed to have the broader sweep which the Secretary claims. It is
presumed~ that is, to apply to the cited machines because they are used on
roadways which are a "means of access."
Even so, for the reasons which follow, I must hold that no violations
were proved. The language of the standard itself makes no reference, of
course, to flags, flashers, or any other warning devices. When confronted
with a standard which specifies neither the type of hazard nor the abatement method contemplated, an operator is placed in a far less certain
position than ,when that standard identifies particular dangers and
remedies. If the requirements imposed by a standard can be divined only by
guess, fundamental questions of due process inevitably arise.

436

Decisions under the Act thus far have not dealt at length with this
problem. l/ The courts, however, have addressed the same proble·m under
the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) in
numerous cases concerned with arguments of "unconstitutional vagueness."
As a generality, these cases place a higher burden on the prosecutor than
those involving narrow or specific standards. First, the courts have
reasoned that the Secretary of Labor in enforcing these broad standards is
·held to essentially the same tests adopted under the "general duty clause"
of the Occupational Safety and Health Act, (a clause which has no direct
counterpart in the Mine Safety and Health Act). McLean Trucking Co. v.
OSHRC 503 F. 2d 8, 10 (4th Cir. 1974); Cape and Vinyard Div. of New Bedford
Gas v. OSHRC, 512 F. 2d 1148, 1152 (1st Cir. 1975).
Recognizing that some standards are necessarily broad, the courts have
ultimately fashioned this test for standards stich as the one we deal with
here:
The question then becomes what precautionary steps
a conscientious safety expert would take to avoid
the occurrence of the hazard. General Dynamics v.
OSHRC, 599 F. 2d 453, 465 (1st Cir. 1979).
In its widest sense, the hazard in the present case is that other
drivers might not see the massive loader or water trucks in time to avoid
accidents. The Secretary claims tha.t the best way to meet this hazard is
to mount a small warning flag on an antenna, or to equip the vehicles with
an electronic flasher. Climax contends that its existing safety ptactices
[as described in the findings] were well calculated to minimize the hazard,
and that the variations now proposed to the Secretary would be of dubious
or even negative value. Through exhibits and testimony, for example,
respondent seeks to show that the small, standard size warning flags (8 1/2
x 13 inches), of which the inspector approved, add nothing to the
visibility of hugh, brightly painted vehicles. Climax also contends that
flashers on machines in the pits create troublesome mirror reflections and
other distractions to operators in ioading areas during the night shift.
Other shortcomings are more obvious. The real concern of the inspector was
that roadside berms and banks hide vehicles in turns (Tr. 64, 65, 71).
Obviously, to the extent that a road curves around a hillside, a mere flag
flying above the loader or truck would still be obscure by a hill of any
size. As to berms, the evidence tends to· show that the superstructures of·
the cited vehicles should be visible far above the highest berms in turns.
The inspector acknowledged that during daylight flashers would not reduce
the hazard he envisioned; mounted atop t~e highest point on the vehicle
they would not be visible over the brow of a hill or from around a corner
(Tr. 69).

1/ Se.e, however, two thoughtful, unreviewed judge's decisions, which
discuss the matter in considerable depth: Evansville Materials Inc. 3
FMSHRC 704 (1981), Judge Fauver; Massey Sand and GravelRock Co.,
FMSHRC
, WEST 80-9-M (Feb. 2, 1982), Judge Morris.

437

The evidence does not convince me that the precautionary measures
taken by respondent were less than the standard requires. On the contrary,
the precautions - appear to have been conscientiously devised and carried
out. Respondent's accident-free record tends to show that. Moreover, the
inspector himself, presumably a "conscientious safety expert" of the sort
mentioned in General Dynamics," volunteered that he saw no problems as he
watched the machines in use. Only after a vehicle operator raised the
matter did it occur to the inspector that flags or flashers were necessary
(Tr. 23). The ad hoc quality of this supposed requirement is thus
apparent.
In sum, the Secretary attempts to hold the operator to an arbitrary
and somewhat whimsical construction of the "safe access" standard, but
fails to show that the measures already in force were not "the reasonably
precautionary steps" implied by the standard. Cf. Brennan v. OSHRC (Vy
Lactos Laboratories, Inc.), 494 F. 2d 460, 463,--C8th Cir. 1974). I
therefore conclude that the cited standard was not violated, To hold
otherwise would be to deprive Climax of due process. If the Secretary is
convinced _that flags or flashers are indeed the preferred_ way to minimize
the hazard, a specific standard corresponding to those mandating backup
alarms and similar warning devices should be pr6mulgated.
CONCLUSIONS OF LAW
(1)

The Corrnnission has jurisdiction to hear and decide this matter.

(2) Respondent did not violate 30 CFR § 55.11-1 as alleged in
citations 331979, 331980 and 331982.
ORDER
Accordingly, the petition for assessment of civil penalties is ORDERED
dismissed and the underlying citations are ORDERED vacated.
FURTHER ORDER ON SETTLED
CITATIONS
This case included three additional citations, 331981, 331983 and
565721, which were not tried on the merits. Respondent agreed at trial to
withdraw its contest of the $78 penalty sought in connection with citation
331-981, and to pay that penalty. The proposed penalty is therefore ORDERED
affirmed, and Climax shall pay the sum of $78 within 30 days of the date of
this order.
At trial the parties indicated that the remaining two citations,
331983' and 565721, were the proper responsibility of Boyles Bros. Drilling
Company, an independent contractor. They also indicated that that company
was willing to substitute itself as the respondent, to accept full
responsibility for the violations, and to pay in full the proposed
penalties. Boyles Bros., by letter received October 5, 1981 formally
agreed to do· those things.
In accordance with the agreements then, Boyles Brothers Drilling
Company is ORDERED substituted as the respondent with respect to citations

438

331983 and 565721; in that capacity it is ORDERED to pay, within 30 days of
this order, a civil penalty of $66 in connection with citation 331983, and
$72 in connection with citation 565721; and th{'! attendant "history of
previous violations" for those cit at ions are ORDERED to be recorded against
Boyles Bros. and shall be not reflected upon the record of the original
respondent, Climax.

Judge
Distribution:
Robert J. Lesnick, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Charles W. Newcom, Esq.
2900 First of Denver Plaza
633 Seventeenth Street
Denver, Colorado 80202
Carl D. High, District Manager
Boyles Brothers Drilling Company
15865 West 5th Avenue
Golden, Colorado 80401

439

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

PATRICK J. MOONEY,
Complainant,

v.
SOHIO WESTERN MINING COMPANY,
Respondent.

)
)
)
)
)
)
)
)
)

MAR 3 19

APPLICATION FOR REVIEW OF
DISCRIMINATION
DOCKET NO. CENT 81-157-DM
MD 81-10
MINE: L-Bar Uranium Operation

DECISION
Appearances:
Patrick J. Mooney, appearing Pro Se
Albuquerque, New Mexico
Robert J. Araujo, Esq.
Sohio Western Mining Company
69 West Washington Street, Suite 700
Chicago, Illinois 60602
For the Respondent
Before: Judge Virgil E. Vail
STATEMENT OF THE CASE
This proceeding was initiated by a complaint filed by Patrick J.
Mooney (hereinafter "Mooney") under the provisions of Section 105(c)(3) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1978) (hereinafter cited as "the Act"). In his complaint, Mooney alleges
that Respondent, Sohio Western Mining Company (hereinafter "Sohio"),
unlawfully discriminated against him by discharging him from his employment
at Sohio's mine on September 9. 1980, in violation of the Act. Mooney
alleges that he had engaged in activities relating to health and safety
protected by section 105(c) of the Act prior to the time of his discharge.
Sohio contends that Mooney was discharged for absenteeism.
Pursuant to notice, a hearing was held on August 11, 1981, in
Albuquerque, New Mexico. Mooney testified on his own behalf and called
Omer Sauvageau, special investigator for the Federal Mine Safety and Health
Administration (MSHA) as a witness. Witnesses for Sohio were Rudolph
Siegmann, operations safety engineer, Alton H. Young, shifter and Mooney's
immediate supervisor, Ruben Romero, supervisor of Area 5 of the mine, and
Dorothy A. Stover, supervisor of employee relations, all employees of
Sohio.

440

Post hearing briefs were filed by both parties. Based on the evidence
presented at the hearing and the contentions of the parties, I make the
following .decision.
FINDINGS OF FACT
1. During the period of time involved herein, Sohio operated an
underground uranium mine identified as J. J. No. l Mine approximately 75
miles from Albuquerque and near Sebago, New Mexico.
2. Mooney was hired by Sohio as an underground laborer on February 5,
1980 (Tr. 11 and 13).
3. On February 28, 1980, three weeks after Mooney was hired, he was
absent one day from work due to illness and furnished Sohio with an
explanation from the medical clinic he contacted regarding his absence (Tr.
49, Exhibit R-5).
4. On March 7, 1980, Mooney was absent from work due to dental work
and furnished a note from the dentist for this one day absence (Tr. 50,
Exhibit R-6).
5. On April 2, 1980, Mooney was absent from work for one day due to
illness (Tr. 25). Upon his return to work on April 3, 1980, Mooney was
given a warning slip by his supervisor Alton H. Young '(Exhibit R-3).
Mooney disputed the absence as being unexcused alleging he had called in to
advise Sohio of his absence. Mooney was advised by Young that Sohio's
policy was to issue a written warning if there was not a doctor's note
submitted following an absence (Tr. 26).
6. On April 10, 1980, during the third shift (midnight to 8 a.m.)
Mooney protested climbing a ladder underneath a shale bulge near the top of
the rib because he felt it was too dangerous (Tr. 9). Another miner was
sent up o.n the ladder instead of Mooney (Tr. 12). This protest by Mooney
was made within a few hours of an injury that occurred to him that day (Tr.
12). Mooney and a second miner, Donald Benton, were standing in the bucket
of a Wagner (tractor type equipment) fifteen feet in the air putting
lagging up on steel sets to control the roof (Tr. 8). Mooney suffered an
injury to his left foot when a slab of rock fell from the crown.
7. Mooney was off work due to his injury from April 10, 1980 until
September 2, 1980 (Tr. 19)
8. Mooney reported to work on September 2, 1980 and presented to
Sohio a statement from his doctor that he was released for regular duty
(Tr. 18, Exhibit R-7).
9. Upon arriving at work, Mooney had a meeting with Rudolph Siegmann,
Sohio's safety director. Mooney complained that there had been omissions
in the accident reports regarding his injury that were filed with the
workmen's compensation carrier for Sohio. He also complained that Donald
Benton, the other man in the bucket of the Wagner, had not been interviewed

441

or listed as a witness, and that the area they were working in was not
properly supported with rock bolts and mesh. Mooney stated that such
omissions in the reports denied him a ten percent increase in his workmen's
compensation benefits, which would have been paid him if Sohio failed to
utilize safety equipment. Mooney told Siegmann he intended to pursue the
matter further (Tr. 16, 17 and 18).
10. Followirig his conversation with Siegniann, Mooney was assigned to
a job on the surface digging a ditch with a shovel (Tr. 19). He had failed
to bring safety glasses that day and in accordance with company policy was
not allowed to go underground (Tr. 170 and 171).
11. On the following day, September 3, 1980, Mooney felt pain in his
left foot and did not report to work. He telephoned Sohio and talked to
Ruben Romero, a supervisor at the mine. Mooney told Romero that he would
not be reporting for work that day. Romero told Mooney to call the Safety
Department Which Mooney did talking to some person Whose name he did not
remember (Tr. 20).
12. Mooney made an unsuccessful attempt to. see his physician on
September 3; 1980 (Tr. 20).
13. On September 4, 1980, Mooney returned to work without a note from
the doctor and as a result was given a three day suspension from work for
an unexcused absence (Tr. 21, Exhibit R-4 ..!.).
14. Mooney reported to work on September 9, 1980 ten to fifteen
minutes late and was notified that he was terminated for a third warning
slip (Tr. 177) •
15. Mooney filed a written complaint of discrimination with the Mine
Safety and Health Administration (MSHA) on October 15, 1980 (Tr. 29). An
investigation was conducted by an investigator for MSHA and Mooney was
advised MSHA was of the opinion that Mooney had not been discriminated
against in violation of the Act. A letter dated March 5, 1981 was sent to
Sohio so advising them of this decision (Exhibit R-13).
16. Mooney filed a claim of discrimination with the Federal Mine
Safety and Health Review Commission on March 25, 1981.
17. Mooney also filed a claim for unemployment insurance with the
State of New Mexico.

1/ Exhibit R-4 states as follows: Warning slip Date 9-4-80 Name Patrick J.
Mooney Dept. Mine Classification Labor Nature of Warning A.W.O.L. Second
warning 3 days off Third warning Termination. Return to work 9-9-80
supervisors signature Earl Zimm •.

442

ISSUE
Did Mooney engage in activity protected under section lOS(c) of the
Act, and, if so, was he discharged because of it?
DISCUSSION
This case involves section lOS(c)(l) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (Supp. III 1979), which sets
forth certain types of employee activity which are protected by a prohibition against discrimination or interference, including:
••• a complaint notifying the operator or the operator's
agent ••• of an alleged danger or safety or health violation
in a coal or other mine, •.• or because of the exercise by
such miner ••• on behalf of himself or others of any
statutory right afforded by this Act.
The Federal Mine Safety and Health Review Connnission has previously
considered questions raised concerning the burdens of proof in discrimination cases in Pasula v. Consolidation Coal Company, 2 FMSHRC 2786
(1980). rev'd on other grounds, No. 80-2600 (3rd Cir. Oct. 30, 1.981), and
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (1981). In Pasula, it
held that a prima facie case is established:
••• if a preponderance of the evidence proves (1) that
(the miner) engaged in a protected activity, and (2)
the adverse action was motivated in any part by the
protected activity.
The first element of proof of a prima facie case is a shbwing that
protected activity occurred. Mooney argues in his post-hearing brief that
the motive for Sohio to discriminate against him was because of his complaints concerning safety violations and the preparation of false and inaccurate accident reports regarding his injury and except for this, Sohio
had no valid reason t.o fire him (Mooney's post-hearing brief at page 8).
Th·e fact.s show that on April 10, 1980, Mooney was injured while
working in the underground shop area of Sohio's mine described as Area 5 in
the J. J. No. 1 Mine. Earlier in the evening, Mooney had complained about
an assignment requiring him to climb a ladder under a shale bulge at the
top of the rib which situation he considered dangerous. His concerns in
this matter were apparently accepted as valid and another employee was
assigned to perform the task,. There was no evidence presented in this case
that Mooney protested his assignment later on in the shift to work in the
bucket of the Wagner with Donald Benton in putting up lagging on the steel
sets which resulted in his injury. The complaint by Mooney regarding his
assignment on the ladder would be protected activity under the Act if it
were shown that such refusal to work prompted his firing. The firing
occurred approximately five months later and the ladder incident alone
would seem rather remote. However, Mooney argues that. subsequent events,
specifically his complaints about the accident reports, was protected
activity and the cause for his firing.

443

Upon his return to work in September 1980, Mooney met with Siegmann
and complained that the accident reports filed with the workmen's
compensation carrier were not accurate. If these complaints were motivated
by a sincere belief by Mooney that such matters were related to safety and
health conditions in the mine, it would constitute protected activity.
However, the preponderance of the evidence shows that at the time Mooney
made these complaints to Siegmann and subsequent thereto, Mooney was ,
attempting to establish his right to an additional ten percent payment he
would receive on .his workmen's compensation benefit if it was shown that
the accident was caused by a failure to utilize safety equipment (Tr. 17).
Mooney in his statement to the MSHA inspector stated as follows:
I was very angry that the report had been falsified.
I was denied a substantial amount of money as a result
of the report being falsified, and I wanted the report
set straight it would have jeopardized my supervisors
Alton Young's job" (Exhibit C-2).
Mooney testified at the hearing as follows:
I had protested to Mr. Siegmann these omissions and discrepancies and at that time I told him that I would pursue
this matter because I felt that I had been unjustly denied
a penalty, an additional monetary benefit from my accident
that I was entitled to under state law (Tr. 17).
These statements by Mooney and a careful review of the evidence shows that
Mooney's purpose of pursuing this matter upon his return to work was
motivated by monetary reasons rather than safety and health and would not
constitute a protected activity under the Act. Mooney's statement that
Alton Young's job was in jeopardy by his actions or that such acts would
cause Siegmann to lose his job was not supported by the evidence.
Mooney argues that Soh_io had no valid reason to fire him. The preponderance of the evidence contradicts this. Mooney worked for Sohio from
February 5, 1980 until September 9, 1980. During that period of time, he
had an excused absence for medical reasons on February 28, 1980, approximately three weeks after he commenced work, an excused absence for dental
work on March 7, 1980 and an unexcused absence on April 2, 1980 for which
he was issued a warning slip. On April 10, 1980, he was injured by the
rock fall and was off work until September 2, 1980, when he returned for
regular duty assignment. Mooney had an unexcused absence for medical
reasons on September 3, 1980 and upon returning to work on September 4,
1980 was given a second written warning that he would be terminated if it
occurred a third time and was given a three day suspension. On September
9, 1980, the date he was to return to work, Mooney was late and was
discharged.
Mooney argues that Sohio did not follow its own policy regarding
absences when it fired him. He contends in his post-hearing brief on page
6 that the two warning slips dated April 3, 1980 (Exhibit R-3) and dated

444

September 4, 1980 (Exhibit R-4) are unwarrantable reprisals. The fact is
th~t the warning slip dated April 3, 1980 for the first unexcused absence
was issued prior to the accident which occurred April 10, 1980 that
triggered the events which Mooney claims as protected activity. This
contradicts his argument that this first warning slip was a reprisal.
Further, the preponderance of the evidence and particularly the two
doctor's statements submitted by Mooney to Sohio for absences on February
28, and March 7, 1980 support Sohio' s argument that Mooney was aware of
their policy regarding attendance.
In its decision Secretary of Labor on behalf of Johnny N. Chacon v.
Phelps Dodge Corporation, 3 FMSHRC 2508 (November 13, 1981), the Federal
Mine Safety and Health Review Commission considered a similar question
regarding a company's business practices regarding disciplining employees,
The Commission held as follows:
••• Corrnnission judges must often analyze the merits of an
operator's alleged business justification for the challenged
adverse action. In appropriate cases, they may conclude that
the justification is so weak, so implausible, or so out of
line with normal practice that it was a mere pretext seized
upon to cloak discriminatory motive. But such inquiries
must be restrained.
The Commission and its judges have neither the statutory charter
nor the specialized expertise to sit as a super grievance or
arbitration board meting out industrial equity. ~· Youngstown
Mines Corp., 1 FMSHRC 990, 994 (1979). Once it appears that a
proffered business justification is not plainly incredible or
implausible, a finding of. pretext is inappropriate. We and our
judges should not substitute for the operator's business judgment
our views. on "good" business practice or on whether a particular
adverse action was "just" or "wise." Cf. NLRH v. Eastern Smelting
& Refining Corp., 598 F. 2d 666, 671 (lSt Cir. 1979). The proper
focus, pursuant to Pasula, is on whether a credible justification
figured into motivation and, if it did, whether it would have led
to the adverse action apart from the miner's protected activities.
if a proffered justification survives pretext analysis and meets
the first part of the Pasula affirmative defense test, then a
limited examination of its substantiality becomes appropriate.
The question, however, is not whether such a justification
comports with a judge's or our sense of fairness or enlightened
business practice. Rather, the narrow statutory question
is whether the reason was enough to have legitimately moved that
operator to have disciplined the miner. Cf. R-W Service System
Inc., 243 NLRB 1202, 1203-04 (1979)(Artic"iilating an analogous
standard).
I conclude that Sohio successfully defended by showing that it did
have legitimate reasons to terminate Mooney for his attendance record.

445

Cert~inly, the evidence shows that Mooney was given adequate warning during
a short period of time (April unt i 1 September, 1980) that he was invoking a

company rule regarding unexcused absences.
I have intentionally avoided an extended review of the facts
surrounding the accident which occurred on April 10, 1980 causing Mooney's
injury. This case was not intended as a forum for deciding whether a
safety violation occurred or who was at fault. The issue here must be
confined to whether Mooney's complaint of safety violations and inaccurate
reports was protected activity and, as a result, produced a subsequent
discrimination action by Sohio. I do not find that Mooney has made a prima
facie case in either instance and find that Sohio did not violate section
lOS(c) when it discharged Mooney.
CONCLUSION OF LAW
1. I have jurisdiction over the parties and the subject matter of
this proceeding.
2.
Mooney.

Sohio did not violate section lOS(c) when it discharged Patrick J.
ORDER

The complaint of discrimination in this case is DISMISSED.

Adminis~~ve Law Judge

Virgil ~Vail
Distribution:
Patrick J. Mooney
2312 Alvarado Northeast
Albuquerque, New Mexico

87110

Robert J. Araujo, Esq.
Derwood H. Rusher, II, Esq.
Law Department, The Standard Oil Company (Ohio)
Sohio Western Mining Company
69 West Washington Street
Chicago, Illinois 60602

446

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

PEABODY'COAL COMPANY,

Contest of Order
Contestant

v.

Docket No. KENT 80-318-R
Order No. 796237
August 1, 1980

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
UNITED MINE WORKERS OF AMERICA,
(UMWA),
Respondent
and

Civil Penalty Proceeding

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

Docket No. KENT 81-32
A/O No. 15-02079-03048 R

v.
Ken No. 4 Mine
PEABODY COAL COMPANY,
Respondent
DECISION
This matter is comprised of a contest proceeding under section 105(d)
and a civil penalty proceeding under section 110 of the Federal Mine Safety
and Health Act of 1977, 30 U. S.C. § 801 et seq. (hereinafter, the "Act").
Peabody Coal Company (hereinafter, '.'Peabody'il}"seeks review of a citation
issued on August 1, 1980, under section 104(a) of the Act 1/ because of
Peabody's refusal to permit MSHA to inspect and copy certain records. MSHA
seeks assessment of a civil penalty against Peabody for this refusal, an
1/ The citation, originally issued under section 104(b) of the Act on
August 1, 1980, was subsequently modified on August 4, 1980, to a section
104(a) action.

447

alleged violation of section 103(d) of the Act 2/ and 30 C.F.R. § 50.41. 3/
Both parties agree that a hearing is unnecessary and request that a deci-sion be made on the basis of stipulated facts and written briefs. On
June 12, 1981, I received the parties' stipulations and written briefs were
subsequently received. Based on the stipulations submitted, it is found:
1. The Ken.No. 4 Mine is an underground, bituminous coal mine located
near Beaver Dam in the County of Ohio, State of Kentucky.
2.

Peabody is the operator of the Ken No. 4 Mine.

3. Peabody is subject to the provisions of the Act with respect to the
subject mine and citation.
4. Jurisdiction exists over the parties to and the subject matter of
these proceedings.
5. On July 29, 1980, a written request for a section 103(g) special
investigation was submitted by a UMWA safety inspector to MSHA's office in
Madisonville, Kentucky, indicating that there was an injury in a rock fall
that had occurred at the Ken No. 4 Mine on May 9, 1977, and enclosing a
copy of Peabody's report which states that no injury occurred. The UMWA
official requested that a special investigation be made to determine whether
an injury had in fact been reported. MSHA can find no record of the injury
suggested by the letter of the UMWA official. However, an affidavit was
executed by Byron L. Culbertson which, in pertinent part, alleges that while
he was employed at cleaning up the rock fall on May 9, 1977, he injured his
back and reported the injury to his face boss, and that later, with the aid
of the assistant mine foreman, he completed an accident report. Additionally,
MSHA has been informed by one C. J. Shipp, M.D., that the latter's medical
clinic records show that on May 10, 1977 (the day after the accident), the
said doctor examined Byron L. Culbertson.
2/

This provision provides:
"All accidents, including unintentional roof falls (except in any
abandoned panels or in areas which are inaccessible or unsafe for inspections), shall be investigated by the operator or his agent to determine
the cause and the means of preventing a recurrence. Records of such accidents and investigations shall be kept and the information shall be made
available to the Secretary or his authorized representative and the appropriate State agency. Such records shall be open for inspection by interested persons. Such records shall include man-hours worked and shall be
reported at a frequency determined by the Secretary, but at least annually."
30 u.s.c. § 813(d) (Pocket Part 1981).
3/ 30 C.F.R. § 50.41, Verification of Reports, provides:
"Upon request by MSHA, an operator shall allow MSHA to inspect and copy
information related to an accident, injury or illness which MSHA considers
relevant and necessary to verify a report of investigation required by
§ 50.11 of this Part or relevant and necessary to a determination of compliance with the reporting requirements of this Part."

448

On August 1, 1980, Federal Inspector Jesse F. Rideout, pursuant to
instructions of MSHA's district manager, went to the mine property to
inspect the company records relating to the rock fall and purported injury.
No request for any other record was made. Inspector Rideout informed Jerry
Maggard, Safety Director at the Ken No. 4 Mine, as to the nature of his
investigation and gave him a copy of Government Exhibit No. 3. !!_/ Safety
Director Maggard informed Inspector Rideout that Peabody had filed all
required reports relating to the rock fall 2 years previously with MSHA
and he refused to allow the inspector to see Peabody's accident records.
The Safety Director arranged for the inspector to telephone Peabody's legal
department whereupon the inspector was informed by Peabody's legal department that they would advise Clyde Miller, the mine superintendent, that MSHA
personnel would not be permitted to examine the accident reports without a
search warrant.
Inspector Rideout then contacted Dennis Ryan of the Arlington, Virginia
Staff of Special Investigations, who after conferring with counsel from the
Office of the Solicitor, instructed the inspector as to their next course of
action. In accordance with his instructions, the inspector returned to the
Ken No. 4 Mine property on August 1, 1980, and demanded to see the records
required to be kept relating to the accident and injuries concerning the
rock fall on May 9, 1977. Superintendent Miller responded that based on
advice of Peabody's counsel, the inspector would not permit the inspector
to examine the mine copies of the accident reports. Inspector Rideout then
read Superintendent Miller section 103(d) of the Act, but Mr. Miller still
refused. Inspector Rideout then issued Citation No. 796236 which is the
subject of the instant proceeding.
The issue involved is whether MSHA must obtain a search warrant in order
to obtain mine office accident records which are required to be kept under
the Act and its implementing regulations.
It is noted initially that there was no actual physical search of
Peabody's offices or physical seizure of Peabodys' records.
The Supreme Court of the United States in Donovan v. Dewey,

U.S.

~~' 69 L.Ed.2d 262 (1981), hereinafter Dewey, held that search warrants

were not required for a section 103(a) inspection to be conducted under the
Act. The crux of the Dewey holding, which I find to be generally dispositive, is that the inspection process is not such an unreasonable intrusion
upon the interests of the mine operator as to offend Fourth Amendment
4/ This exhibit is a copy of a letter dated July 28, 1980, addressed by a
safety inspector employed by the United Mine Workers of America addressed
to the MSHA office at Madisonville, Kentucky, requesting a section 103(g)
special investigation to determine whether there was a 30 C.F.R. § 50.20
violation (which is similar to 30 C.F.R. § 80.31, 37 F.R., Page 5753
(March 21, 1972), which was the standard in effect at the time of the
rock fall on May 9, 1977.

449

requisites. In its discussio~, the Court specified three instances where
inspections of commercial property may be found unreasonable:
(1)

If they are not authorized by law,

(2)

If they are unnecessary for the furtherance of Federal interests,

and
(3) If the inspections are so random, infrequent, or unpredictable
that the owner for all practical purposes has no real expectation that his
property will from time to time be inspected by Government officials.
Since none of these were found applicable to section 103(a) inspections, the process was held to be reasonable. By virtue of Dewey, the
mining industry apparently has joined the liquor and firearms industries
as an exceptional enterprise subject to the warrantless inspection of its
commercial premises. See Colonade Catering Corporation v. United States,
397 U.S. 72 (1970), and United States v. Biswell, 406 U.S. 311 (1972),
respectively.
Reconsideration of the three tests for reasonableness set forth in
Dewey in connection with section 103(d) inspections is in order.
Is the Inspection Authorized by Law
At the time of the rock fall on May 9, 1977, the Federal.Coal Mine Health
and Safety Act of 1969 (hereafter, 1969 Act) was in effect. The Federal Mine
Safety and Health Act of 1977 (hereafter, 1977 Act) did not become effective
until March 9, 1978.
Accordingly, examination of both the 1969 and 1977 Acts
is desideratum.
Section 111 of the 1969 Act provides:
Maintenance of records; investigation of accidents;
accessibility; periodic reports to Secretary; publishing of reports; limitations
(a) All accidents, including unintentional roof falls
(except in any abandoned panels or in areas which are
inaccessible or unsafe for inspections), s~all be investigated by the operator or his agent to determine the cause
and the means of preventing a recurrence. Records of such
accidents, roof falls, and investigations shall be kept and
and the information shall be made available to the Secretary
or his authorized representative and the appropriate State
agency. Such records shall be open for inspection by interested persons. Such records shall include man-hours worked
and shall be reported for periods determined by the Secretary,
but at least annually.

450

(b) In addition to such records as are specifically
required by this chapter, every operator of a coal mine shall
establish and maintain such records, make such reports, and
provide such information, as the Secretary may reasonably
require from time to time to enable him to perform his functions under this chapter. The Secretary is authorized to
compile, analyze, and publish, either in summary or detailed
form, such reports or information so obtained. Except to the
extent otherwise specifically provided by this chapter, all
records, information, reports, findings, notices, orders, or
decisions required or issued pursuant to or under this chapter
may be published from time to time, may be released to any
interested person, and shall be made available for public
inspection. [Emphasis added.]
30 u.s.c. § 821 (1971).
Thus, under section 111, the operator clearly was required to keep
records at the time of the rock fall and to make the same available to
the Secretary. Additionally, the following three regulations were
pertinent at the time of the rock fall.
(1) 30 C.F.R. § 80.22, which delineates what accident invesigation
report records shall contain:
(a) The written record of each investigation of any
accident shall contain:
(1) An identification of, and correlation with, the
record or records of the accident, injury, or occupational
illness reported and required to be maintained by
Section 80.31.
(2) The date and hour upon which the accident
occurred.
(3)

The date and hour the investigation was started.

(4) The name of the person or persons who made the
investigation.
(5) The specific location of the accident and a
description of the location.
(6) Names, occupation at the time of the accident,
and pertinent occupational experience for all persons who
received disabling injuries and other injuries.
(7) A narrative description of the accident, including
all pertinent related events prior to the accident, measurements of any dimension or clearance; type of equipment or

451

machinery, noise level, visibility, lighting (in general
terms); any identifiable human behavioral factors contributing to the accident; or any other element contributing to or related to the accident.
(8) A description of the steps taken, or to be taken
in the future to avoid a recurrence, including, where appropriate, suggestions for modification or improvement in
operating rules and regulations, working rules and regulations, safety standards, modification of equipment, training of personnel, or any other changes needed to prevent
recurrence of the accident.
(b) Additional records shall be kept as follows of
all unintentional roof falls of a size that would restrict
ventilation or the passage of men:
(1)

a plot of the roof fall on a mine map.

(2) A rough sketch or sketches of suitable scale
showing the dimensions of the fall, the type and location
of the roof support used, the type and thickness of the
strata above the coalbed, and a statement of the depth of
overburden in the affected area. Abnormalities in the
immediate roof structure also shall be located and
described.
(2) 30 C.F.R. § 80.23, which states these records shall be maintained
at the mine for a period of 5 years and available to MESA upon request of
the district manager:
The written records of investigation of accidents
required by this Subpart C shall be maintained at the mine
for a period of 5 years from the date of the accident and
shall be open for inspection by interested persons. A copy
of the written record of each investigation of an accident
made under section 80.22 shall be furnished to the Mining
Enforcement and Safety Administration upon request by a
Coal Mine H~alth and Safety District Manager.
(3) 30 C.F.R. § 80.3l(a), which delineates record-keeping requirements
for accidents:
The operator of a coal mine shall maintain at the mine
office a Coal Accident, Injury, and Illness Report (Form
6-347) on which there shall be entered and recorded specified
information with respect to each accident, and reach resultant
injury by date of occurrence, and each occupational illness by
date of diagnosis or occurrence. The Coal Accident, Injury,
and Illness Report is organized to facilitate the recording

452

and compilation of information for each occurrence. The
operator's copy (white) shall be maintained at the mine for
a period of 5 years from the date of occurrence or diagnosis,
whichever is applicable, and shall be open for inspection by
interested persons.
The statutes and regulations in effect on the date of the accident
required the mine operator to keep records of the type Inspector Rideout
requested. Nothing in the 1977 Act suggests that the record-keeping
requirements ·under the 1969 Act were to be disregarded. In fact, section
103(d) of the 1977 ~ct is substantially congruent to the 1969 Act's
mandates. Consequently, since the accident occurred on May 9, 1977, and
records were required to be kept for a period of 5 years from that date,
I find that Inspector Rideout's August 1, 1980, request for records was
in accordance with applicable law, that Respondent was required to keep
such records by express provisions of both the 1969 and 1977 Acts, and
that Respondent was likewise required to allow the Secretary to inspect
such records.
Is the Inspection Necessary for the Furtherance of Federal Interests
Congressional concern over mine safety has been apparent since Federal
intervention in the mining industry began in 1910 when the Bureau of Mines
Act was enacted (Pub. L. No. 61-179, Ch. 240, 36 Stat. 369 (1910)). Of
utmost concern has been the health and safety of the mining industry's most
precious resource--the miner (see Preamble, 1977 Act, 30 u.s.c. § 80l(a))
(Pocket Part 1981). Congress has taken pervasive measures to ensure the
health and safety of the miner. It is manifest that record-keeping requirements are needed to monitor safety performances and to document accidents
and their causes. MSHA uses this information to improve the overall quality
of a mine's safety program.
In requesting records, MSHA sometimes touches upon another legitimate
concern, that of the general expectation that a mine operator has of privacy
in his offices. Judicial pronouncements involving these competing interests
suggest that whenever an inspector seeks information that is required to be
kept by law, the privacy expectations of the mine operator must yield to the
Federal interest protecting the health and safety of the miner. 5/ For example,
in Youghiogheny and Ohio Coal Company v. Morton, 364 F. Supp. 45-(S.D. Ohio,
1973), the court noted:
.
The governmental interest in promoting mine safety, it
might be concluded, far outweighs any interest the mine opera tors may have in privacy. 364 F. Supp. 45, 51.
5/ The factual configuration underlying the decision of Judge Broderick in
Sewell Coal Company v. MSHA, 1 FMSHRC 864 (July 6, 1979), is distinguishable
from the instant matter in that a wholesale search of files and records (some
records were required and others were not required to be kept under the Act)
was involved.

453

and footnoted:
The mine operator though, does have a general expectation of privacy in his offices on the mining property.
There is, however, no expectation of privacy in the maps,
books, and records which are maintained for and in compliance with the Mine Safety Act. These must, of course, be
produced upon demand to the federal inspector when he makes
his unannounced entry. 364 F. Supp. 45, 51. n. 5.
See also United States v. Consolidation Coal Company, 560 F.2d 214. (6th Cir.
1976), which, at page 218, underscores a significant industry interest in
maintaining this inherent part of the statutory scheme of self-regulation:
It follows that business records and other paraphernalia,
which are maintained pursuant to the Act, are appropriate
targets for periodic federal scrutiny. * * * In the instant
case, these materials constitute the veritable life blood of
a statutory scheme which contemplates responsible, selfmonitoring of working conditions by mine operattors.
As noted above, the firearm's industry like the mining industry has
been found to be pervasively regulated. In United States v. Biswell, supra,
the Supreme Court of the United States upheld a statute authorizing warrantless searches of firearm's records required to be kept by law provided the
inspection was during normal business hours. 2_/
Section 103(e) of the 1977 Act requires that any information required
to be kept should be obtained so "as not to impose an unreasonable burden
with the underlying purposes of the Act." 7/ Accordingly, since the
investigation occurred during regular business hours and Inspector Rideout's
sole request was for information of an accident report of a rock fall on
May 9, 1977, and since this information was required to be kept by law, I
conclude (1) that the request was reasonable under section 103(e), (2) not
burdensome, and (3) in furtherance of federal interests.
6/ Also see United States v. Petrucci, 486 F.2d 329 (9th Cir. 1973), to the
same effect.
7/ Section 103(e) reads:
"Any information obtained by the Secretary or by the Secretary of
Health, Education, and Welfare under this Act shall be obtained in such a
manner as not to impose an unreasonable burden upon operators especially
those operating small businesses, consistent with the underlying purposes
of this Act. Unnecessary duplication of effort in obtaining information
shall be reduced to the maximum extent feasible." 30 u.s.c. § 8ll(c)
(Pocket Part 1981).

454

Is the Inspection of a Type So.Random, Infrequent, or Unpredictable That the
Owner, for All Practical Purposes Has No Real Expectation That His Property
Will from Time to Time Be Inspected By Government Officials
Peabody argues that since the request for the accident record was
"special" (i.~., one not of certainty or regularity), it "cannot be expected
to foresee an investigation that was created for the sole purpose of securing
accident information." This contention is both specious and pernicious to
the mututal interest of industry and the public in that it attacks the underpinnings of the concept of self-regulation, which ultimately must operate in
a spirit of cooperation and good faith.
As the parties stipulated, Inspector Rideout "demanded to see the records
required to be kept relating to the accident and injuries concerning the rock
fall on May 9, 1977" (Stipulation, No. 6). These records are required to be
kept by the mine operator by both the Act and the regulations and made available to the Secretary. Official notice is taken that, in the abstract, a rock
fall is a most dangerous circumstance. Investigations of such are clearly
a legitimate regulatory concern. Since the request was made during regular
business hours for records specifically required to be kept and turned over,
Peabody's claim that the request was uncertain and unforeseeable is not found
meritorious. In this connection, I find that the request was "routine" in
the sense that it was specifically authorized by the Act, even though it was
not in furtherance of a common enforcement practice. Consolidation Coal
Company, supra, p. 218, fn. 8.
Conclusion and Assessment of Penalty
Since it is concluded that Inspector Rideout's warrantless request for
information relating to the records required to be kept should have been
complied with, I find Peabody, a large mine operator, to be in violation of
the Act. MSHA admits that the violation was not serious since no physical
harm was posed to any miner by reason of the failure to produce the report.
The culpability of this intentional violation is mitigated by its being in
furtherance of advice from counsel. 8/ Peabody has but a moderate history
of previous violations. Accordingly-:- a penalty of $500 is assessed which
Peabody is directed to pay to the Secretary of Labor within 30 days from
the issuance date of this decision.

Michael A. Lasher; Jr., Judge

8/ A fact which was stipulated to by the parties (see Stipulation received
June 17, 1981, p. 4).

455

Distribution:
Thomas R. Gallagher, Esq., Peabody Coal Company, P.O. Box 235,
St. Louis, MO 63166 (Certified Mail)
John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
Harrison Combs, Esq., United Mine Workers of America, 900 15th
Street. NW., Washington, DC 20005 (Certified Mail)

456

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

MAR 8 1982

Complaint of Discharge,
Discrimination, or Interference

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

Docket No. KENT 81-124-D
On behalf of
ISAAC A. BURTON, ET AL.,
Complainants
v.

No. 8 Mine

SOUTH EAST COAL COMPANY, INC.,
Respondent
DECISION
Appearances:

Darryl A. Stewart, Esq., Office of the Solicitor, U.S.
Department' of Labor, Nashville, Tennessee, for
Complainant~;

James W. Craft, Esq., Polly, Craft, Asher & Smallwood,
Whitesburg, Kentucky? for Respondent.
Before:

Administrative Law Judge Broderick
STATEMENT OF THE CASE

The above proceeding was heard by Administrative Law Judge James A.
Laurenson in Lexington, Kentucky, on December 2 and 3, 1981. William J.
McCool, Rex V. Fields, Isaac A. Burton and Charles Miller testified on
behalf of Complainants; William T. Cahoon, Estel Brown and Charles
Holbrook testified on behalf of Respondent. At the conclusion of the
hearing, both parties waived their rights to submit closing argument
and to file posthearing briefs. Judge Laurenson left the Commission
before he was able to decide the case and it was assigned to me. The
parties have agreed that I may decide the case on the record made
before Judge Laurenson and have stated that they do not desire to file
posthearing briefs.
The proceeding involves the claims of nine miners, Isaa~ A.
Burton, Alex Combs, Curtis Day, Donnie Dixon, Rex V. Fields? Henry
Heron, Jack H. King, Wiiliarn J. McCool and Eugene Spencer that they
were discriminated against in violation of section 105(c)(l) of the
Mine Act by their employer, Respondent. As a result of the alleged
discrimination, Complainants contend they lost time from work and lost
pay and other employment benefits.
·

457

On the basis of the entire record, including the transcript of
testimony, the exhibits introduced and the contentions of counsel I
make the following decision:

FINDINGS OF FACT
1. Respondent was at all times pertinent to this case the
operator of an underground coal mine in Letcher County, Kentucky,
known as the No. 8 Mine.
2. The products of Respondent's No. 8 Mine enter into and its
operations affect interstate commerce.
3. At all times pertinent Complainants Isaac A. Burton, Alex
Combs, Curtis Day, Donnie Dixon, Rex V. Fields, Henry Heron, Jack H.
King, William J. McCool and Eugene Spencer were employed by Respondent
as miners.
4. The miners named above worked in the same continuous miner
crew at the subject mine. McCool was the continuous miner operator;
Dixon was the miner helper, also called the cable puller; Fields was
a shuttle car operator; Burton was a scoop operator, the others had
various other jobs in the production crew.
5. In mid-June, 1980, the development of the subject mine was in
the direction of an old mine, which had been mined by the Smith-Elkhorn
Coal Co. Both mines were in the Elkhorn No. 3 coal seam. Respondent
intended to cut into the old mine and recover some of the coal that
had ·not been mined out.
6. Respondent's mining engineer, under whose supervision the
mine map of the subject mine was prepared, had done the engineering
work on the Smith-Elkhorn Coal Co. Mine and was aware of the location
of the workings in the latter mine.
7. About 3 or 4 weeks prior to June 18, 1980, a cut was made
from the subject mine into the Smith-Elkhorn Mine. This occurred on
a Saturday while the No. 8 Mine was otherwise idle. Test boreholes
had been previously drilled and water had been pumped out.
8. A flame safety lamp check of the air coming from the old
mine was made. It did not show the existence of "black damp."

458

DISCUSSION
There is a dispute between the testimony of William Mc€ool, the
miner operator and Charles Holbrook the mine foreman on this point.
McCool was operating the miner and Holbrook handled the flame safety
lamp. Therefore Holbrook was in the best position to testify on
·whether the lamp went out. McCool may have misunderstood Holbrook
ari clearly was not in as good a position to see the lamp.
9. Holbrook instructed McCool and the others to put a danger
board in the entry with the notation "Danger. Keep Out," and they
did so.
DISCUSSION
Once again the testimony of McCool and Holbrook is in conflict.
I accept McCool's version since it is more definite (when asked if
McCool hung such a sign, Holbrook answered "I don't think so")
(Tr. II, 91) and since ~cCool was one of those who actually hung the
sign.
10. About 1 week prio~ to June 18, 1980, McCool again cut into
the old mine. He told Holbrook and Estel Brown, the section foreman.
Brown performed a flame safety lamp test and the flame went out
indicating bad air.
DISCUSSION
There is dispute as to whether this was an accidental cutting
into the old mine or a planned one and as to whether the mine map
was accurate. I accept Respondent's testimony on those issues, but
I accept McCool's testimony concerning the flame safety lamp test.
It was not clearly disputed by Brown.
11. After the old mine had been previously cut into as
described in Finding of Fact No. 7, the mine foreman, Mr. Holbrook
went into the Smith-Elkhorn works twice weekly to examine the areas
approached by the advancement of No. 8 Mine. He walked to within
3 breaks (180 feet) of the junction. There was water on the floor
of the old mine but "it wasn't real deep." (Tr. II, 87). Neither
Holbrook nor Brown told McCool and the other members of his crew
that these inspections were made.
12. On June 13, 1980, mine operator McCool and his crew began
work at 2:00 p.m. They serviced the miner and checked the face areao
Water was coming out from the face and was standing on the mine
floor. The ribs were soft. On the previous day as cuts were made
the coal kept getting softer and more water was encountered.

459

13. McCool then told section foreman Brown that he didn't want
to cut into the face without drilling test holes because he was afraid
of cutting into water and black damp in the old mine.
14. Brown then asked the miner helper, Donnie Dixon, if he
would run the miner. Dixon said he was also afraid to cut the face.

15. Brown then told the entire crew to leave the mine. There
was no discussion of the validity of the miner operators' fears and no
offer of alternate work.
16. On the way out of the mine, the crew met MSHA inspectors
coming in. Brown told them the crew was leaving because it had no
cable to run the drill.
17. On June 19, 1980, when the crew returned to the mine, they
were told by Holbrook that "if you was afraid to cut it yesterday,
you would be afraid to cut it today and tomorrow." (Tr. I, 42). The
crew was told to remain home until Monday, June 23, 1980.
18. On June 19, 1980, an MSHA inspector issued a c.itation for
a violation of 30 C.F.R. § 75.1701 for cutting within 60 feet of an
abandoned inaccessible area, without drilling boreholes. This was
in the area involved in the present proceedipg.
19. The proposal for a penalty based on the above citation was
dismissed by a Conunission Administrative Law Judge on July 13, 1981,
on the ground that the areas to which the mine was being driven were
neither abandoned nor inaccessible since they had been inspected and
ventilated. Secretary of Labor v. South East Coal Company, Inc.,
3 FMSHRC 1766.
20. On June 19 and 20, 1980, the face area in question was
advanced by other crews about three cuts. The old mine was not cut
into. Test holes were drilled and a pump was set up to pump out the
water coming from the old mine. The pump was continued for several
months, pumping water intermittently.
21. When the crew returned to work on June 23, 1980, they cut
coal in other headings after test holes were drilled.
ISSUES
1. Were miner operator McCool and miner helper Dixon engaged
in activity protected under the Hine Act when they refused to perform
work on June 18, 1980?

460

2. If so, are they entitled to pay for the time lost from work
on June 18 through 20, 1980?
·
3. If protected activity was involved, are the members of the
crew who were sent home other than McCool and Dixon entitled to pay
for the time lost from work June 18 through 20, 1980?
4. Did the Claimants who did not appear at the hearing abandon
their cases?
5. Are the miners entitled to hearing expenses including lost
pay for meeting with their attorney and for attending the hearing?
CONCLUSIONS OF LAW
1. Respondent is subject to the provisions of the Federal Mine
Safety and Health Act of 1977, and the undersigned has jurisdiction
over the parties and subject matter of this proceeding.
2. Mine Operator William J. McCool and his helper Donnie Dixon
refused to perform work on June 18, 1930 because of a reasonable,
good faith belief that it was hazardous.
DISCUSSION
Refusal to perform work is protected under section 105(c)(l) of
the Act if it results from a good faith belief that the work involves
safety hazards, and if the belief is a reasonable one. Secretary of
Labor/Fasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2 BNA MSHC 1001
(1980), rev'd on other grounds sub nom Consolidation Coal Co. v.
Marshall
F.2d
(3rd Cir-:---1981); Secretary of Labor/Robinette
v. Unitedcastle CotlCo.' 3 FMSHRC 803, 2 BNA MSHC 1213 (1981).
McCool and Dixon explicitly based their refusal to work on safety
reasons. Respondent does not challenge their good faith and the
record contains no reason to doubt it. The reasonableness of their
belief has to be determined on the basis of what they knew at the time
of the work refusal. The fact that the work was objectively safe and
was known to Respondent to be safe is not enough to withdraw the
protection of the Act. McCool at least had reason to believe that
cutting into the old mine might expose him and his co-workers to
water inundation and bad air based upon two prior experiences. He
did not absolutely refuse to work but asked that test boreholes be
drilled before cutting. It seems clear from the record that Respondent
did not communicate the fact that the old mine was being ventilated
and regularly inspected by mine management. Therefore these facts
cannot be used'to judge the reasonableness of Complainant's work
refusal.

461

3. McCool and Dixon were sent home because of the refusal to
work described in Conclusion No.·2 and remained out of work and
unpaid for the same reason on June 19 and June 20, 1980.
4, Therefore, McCool and Dixon are entitled to back pay for the
wages lost June 18 through 20, 1980.
5. although the other members of the crew did not specifically
refuse to work because of safety fears or otherwise, they were all
sent home for the 3 days because of McCool's and Dixon's safety
related work refusal. I conclude that McCool and Dixon were acting
on behalf of the entire crew and they are all protected from retaliation under the Act.
DISCUSSION
In two cases, the Commission has rejected the notion that an
individual safety complaint by each involved miner is necessary to
sustain a discrimination case. Under the 1969 Coal Act the Commission
adopted the judge's ruling that "it would be unrealistic to expect
each man to make his own individual complaint to his supervisor . • . •
It may be inferred that the fears and concerns expressed by the applicants who testified were shared by many of the other applicants."
Local 1110, United Mine Workers of America, et al. v. ConsoliJation
Coal Co., 2 FMSHRC 2812 (1930). In the recent case of Secretary/
Dunmire and Estle v. Northern Coal Co,, 4 FMSHRC
(1982), the
Commission emphasized that the Act protected concerted activity and
held that the communication of a refusal to work by one miner "may be
deemed to be on behalf of all concerned even if not announced in such
terms." Id, slip op. p. 9.
6. The failure of certain Complainants to appear at the hearing
did not amount to an abandonment of their claims.
DISCUSSION
Respondent did not cite any authority for the proposition that
by failing to appear at the hearing, certain of the Complainants
abandoned their claims, and I am not aware of any such authority.
Evidence was presented on Complainants behalf, from which I have
concluded that they were discriminated against by Respondent. Their
failure to appear at the hearing is irrelevant.
7. Complainants are entitled to reimbursement for incidental
hearing expens~> incurred in prosecuting their claims.

462

DISCUSSION
In Secretary/Dunmire and Estle v. Northern Coal Company, supra,
the Commission held that the awarding of incidental, personal hearing
expenses is an appropriate form of remedial relief.
8. Resp.ondent has violated section 105 (c) of the Mine Act by
discriminating against the Complainants for exercising rights
protected under the Act. The violation was moderately serious and
was deliberate in the sense that it was intentionally done. There
is no evidence as to the size of Respondent or whether a civil
penalty will affect its ability to continue in business.
ORDER
Based on the above findings of fact and conclusions of law
Respondent is ORDERED:
1. To reimburse Isaac A. Burton the sum of $220 plus interest
at the rate of 12 percent per annum from June 20, 1980 until paid,
for wages lost June 18 - 20, 1980; to reimburse Isaac A. Burton the
following hearing expenses: $90 for pay lost November 30, 1981;
$24 travelling expenses (120 miles at .20 cents/mile) on
November 30, 1981; $90 for pay lost December 2, 1981; $62 travelling
expenses (310 miles at .20 cents/mile) December 2, 1981, or total
hearing expenses of $266 (interest need not be paid on hearing
expenses if paid in accordance with this order).
2. To reimburse Alex Combs the sum of $231 plus interest at
the rate of 12 percent per ~nnum from June 20, 1980 until paid, for
wages lost June 18 - 20, 1980.
3. To reimburse Curtis Day the sum of $231 plus interest at the
rate of 12 percent per annum from June 20, 1980 until paid, for
wages lost June 18 - 20, 1980.
4. To reimburse Donnie Dixon the sum of $225 plus interest at
the rate of 12 percent per annum from June 20, 1980 until paid, for
wages lost June 18 - 20, 1980;

.

5. ro-reiiilburse Rex V. Fields the sum of $220 plus interest
at the rate of 12 percent per annum from June 20, 1980 until paid,
for wages lost June 18 - 20, 1930; to reimburse Rex V. Fields the
following hearing expenses: $90 for pay lost November 30, 1981;
$22 travelling expenses (110 miles at .20 cents/mile) on November 30,
1981; $90 for pay lost December 2, 1981; $58.80 travelling expenses
(294 miles at .20 cents/mile) December 2, 1981 - or total hearing
expenses of $260.80 without interest.

463

6. To reimburse Henry Heron the sum of·$231 plus interest at
the rate of 12 percent per annum from June 20, 1980 until paid, for
wages lost June 18 - 20, i980.
7. To reimburse Jack H. King the sum of $220 plus interest at
the rate of 12 percent per annum from June 20, 1980 until paid, for
wages lost June 18 - 20, 1930.
8. To reimburse William J. McCool the sum of $231 plus interest
at the rate of 12 percent per annum from June 20, 1980 until paid,
for wages lost June 18 - 20, 1980; to reimburse William J. McCool the
following hearing expenses: $90 for pay lost November 30, 1981;
$28 travelling expenses (140 miles at .20 cents/mile) on November 30,
1981; $90 for pay lost December 2, 1981; $60 travelling expenses
(300 miles at .20 cents/mile) December 2, 1981, or total hearing
expenses of $268 without interest.
9. To reimburse Eugene Spencer the sum of $231 plus interest
at the rate of 12 percent per annum from June 20, 1980 until paid,
for wages lost June 18 - 20, 1980.
IT IS FURTHER ORDERED that Respondent pay to the Secretary of
Labor, Mine Safety and Health Administration the sum of $100 as a
civil penalty for the violation of section 105(c)(l) of the Act found
herein to have occurred.
IT IS FURTHER ORDERED that Respondent shall pay the above amounts
within 30 days of the date of this order.

J
Distribution:

M J/£5

A-13wr11/tG(_

James A. Broderick
Administrative Law Judge

By certified mail

Darryl A. Stewart, Esq., Office of the Solicitor, U.S. Department of
Labor, 801 Broadway, 280 U.S. Courthouse, Nashville, TN 37203
Thomas A. Mascolino, Esq., Counsel for Trial Litigation, Office of the
Solicitor, Division of Mine Safety, U.S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203
James W. Craft, Esq., Polly, Craft, Asher & Smallwood, 7-10 Bank
Building, Whitesburg, KY 41848
Special Investigations, MSHA, U.S. Department of Labor, 4015 Wilson
Blvd., Arlington, VA 22203

464

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

CLINCHFIELD COAL COMPANY,
' Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

MAR 8 1982

Contests of Citation and Order
Docket No. VA 81-92-R
Citation No. 1080109
July 7, 1981

Respondent

Docket No. VA 81-93-R
Order No. 1080112
July 9, 1981
McClure No. 1 Mine

DECISION
Appearances:

Timothy W. Gresham, Esq., Lebanon, Virginia, for Contestant;
Catherine M. Oliver, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania, for
Respondent.

Before:

Judge Melick

These cases are before me upon Contests filed by the Clinchf ield Coal
Company (Clinchfield) pursuant to section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et~·, "the Act," challenging a
citation and an order of withdrawal issued under sections 104(a) and 104(b)
of the Act, respectively. ];/

J:.f

Section 104(a) of the Act provides as follows:
"If, upon inspection or investigation, the Secretary or his authorized
representative believes that an operator of a coal or other mine subject to
this Act has violated this Act, or ·any mandatory health or safety standard,
rule, order, or regulation promulgated pursuant to this Act, he shall with
reasonable promptness, issue a citation to the operator. Each citation shall
be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule,
regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The
requirement for the issuance of a citation with reasonable promptness shall
not be a jurisdictional prerequisite to the enforcement of any provision of
this Act."

465

Citation No. 1080109
§

This citation charges a violation of the regulatory standard at 30 C.F.R.
75.1105 and alleges as follows:
The battery-charging station (permanent) located in the
No. 5 intake entry, Caney No. 2 section (005) was not housed
in a fireproof structure in that the asbestos curtains used
as fireproofing did not extend the length of the coal ribs
back to the permanent stopping.

The cited standard reads in relevant part as follows:
Underground * * * battery-charging stations * * * shall
be housed in fireproof structures or areas. Air currents
used to ventilate structures or areas enclosing electrical
installations shall be coursed directly into the return

* * *·
The essential facts in this case are not in dispute. The parties agree
that the cited underground battery charging station was laid out as illustrated in Exhibit A, attached hereto. As shown in Exhibit A, the battery
charger was centered in the subject station 29 feet 6 inches inby a permanent incombustible cinder block stopping but only 7 feet from the coal
ribs. The station was 8 feet high and its roof and floor were composed of
incombustible slate. Sections of fireproof asbestos curtain were hung
alongside the right and left ribs in the general vicinity of the charging
station but not immediately adjacent to the battery charger. It is undisputed that the coal ribs adjacent to the battery charger had been properly
rock dusted but that did not make the coal in these ribs incombustible and
certainly not fireproof.
In practice at relevant times batteries to be charged were removed from
mining machinery and placed on one of several metal battery stands located
within the charging station. At the time the citation was issued, one
fn. 1 (continued)
Section 104(b) of the Act provides as follows:
"If, upon any follow-up inspection of a coal or other mine, an authorized
representative of the Secretary finds (1) a violation described in a citation
issued pursuant to subsection (a) has not been totally abated within the
period of time as originally fixed therein or subsequently extended, and (2)
that the period of time for the abatement should not be further extended, he
shall determine the extent of the area affected by the violation and shall
promptly issue an order requiring the operator of such mine or his agent to
immediately cause all persons, except those persons referred to in subsection
(c), to be withdrawn from, and to be prohibited from entering, such area until
an authorized representative of the Secretary determines that such violation
has been abated."

466

battery was being charged about 8 feet from the battery charger. In the
charging process explosive hydrogen gas is generated and accordingly ventilation must be maintained. There is no dispute that such ventilation was
maintained in this case and that the hazard from hydrogen gas was accordingly minimal. The possibility of a short circuit in the charger resulting
in fire and heat buildup is also mutually recognized.
Clinchfield admits that its battery-charging station was not completely
"housed in fireproof structures or areas" but argues that it was impossible
to comply with that requirement because it is in conflict with another
requirement in the·same standard that "air currents used to ventilate
structures or areas enclosing electrical installations * * * be coursed
directly into the return." It argues further that because of this confli-et
and the resulting ambiguities in the cited regulation it can be constitutionally enforced only if the operator had actual knowledge that the cited
condition or practice was hazardous or if it can be shown that a reasonably
prudent man familiar with the circumstances of ·the industry would have protected against the hazard. Bristol Steel and Iron Works v. O.S. and H.
Review Com'n, 601 F.2d 717 (4th Cir. 1979). Such an analysis of a regulatory
standard is not required, however, where the standard itself provides "reasonable certainty" and is facially unambiguous. Connally v. General
Construction Company, 269 U.S. 385, 391; Boyce Motor Lines, Inc. v.
United States, 342 U.S. 337.
Indeed Clinchfield itself suggests in its brief how the two parts of the
regulation may be read in harmony:
The proper interpretation of this mandatory standard insofar
as it states the charging station be housed in a fireproof
area must be that the battery-charging station must be so
housed as to prevent the spread of fire to combustible materials while, at the same time, allowing proper and necessary
ventilation to carry away any and all gases and fumes which
could contribute to an ignition and fire and all fumes and
smoke that would result from an ignition or a fire.
I agree that the two parts of the standard are not in necessary conflict and
that the standard may be read as a consistent and harmonious whole. See
73 Am. Jur. 2d Statutes § 254. Accordingly, I find that the standard provides constitutionally sufficient certainty. Boyce, supra. The only issue
before me then is whether Clinchfield was complying with those specific
requirements. On the undisputed facts of this case, I find that it was not.
As shown in stipulated Exhibit A the battery charger was located only 7 feet
from combustible coal ribs with admittedly no fireproof separation. Moreover,
while short sections of asbestos curtains were hung in the vicinity of a
battery being charged, that battery was situated within 10 feet of another
coal rib. Even under the most liberal construction of the standard as advocated by Clinchfield the cited battery-charging station could not therefore
have been "housed" within a fireproof structure or area.

467

Clinchf ield nevertheless appears to claim as an affirmative defense that
the absence of fireproof housing around portions of the battery-charging
station was necessary to allow for the ventilation required by the second
part of the standard. '.!;he proof in this case fails, however, to support the
claimed defense. Indeed there is no evidence to show that the firepro"of
enclosure as finally approved by MSHA in this case prevented compliance in
any way with the ventilation requirements of the standard. Clinchfield contends, finally, that the cited standard should be interpreted with deference
to the MSHA Coal Mine Inspection Manual, Chapter 2, section (3) Page 514
(March 1978). The manual provides in relevant part that the " coal, or other
combustible "materials below, above and to the sides of the battery(s) should
be protected." However, since Clinchfield in this case did not as a matter
of undisputed fact protect all sides of the battery being charged, it was
clearly in violation of the manual provisions as well as the standard.
Accordingly, the contention is irrelevant.
ORDER
Citation No. 1080109 is AFFIRMED and the contest of that citation is
accordingly DISMISSED.
Docket No. VA 81-93-R
Clinchfield stipulated at hearing that the section 104(b) order of
withdrawal in this case, Order No. 1080112, would not be disputed in the
event that the underlying citation in Docket No. VA 81-92-R was.affirmed. I
consider that stipulation to be a request to withdraw the contest of the
captioned proceeding conditioned upon the affirmation by the undersigned of
the underlying citation in the preceding case. Since that citation has been
affirmed, I approve of the withdrawal by Clinchfield of its contest in this
proceeding.
ORDER
Order No. 1080112 is AFFIRMED
accordingly DISMISSED.

468

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469

II

Distribution:
Timothy W. Gresham, Esq., Clinchfield Coal Company, P.O. Box 4000,
Lebanon, VA 24266 (Certified Mail)
Catherine M. Oliver, Esq., Office of the Solicitor, U.S. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)
Teddy R. Lester, President, United Mine Workers of America, District 28,
Local 1852, Route 1, Box 328, Cedar Bluff, VA 24609 (Certified Mail)
J. E. Stanley, President, United Mine Workers of America, District 28,

Local 2274, Route 1, Clintwood, VA 24228 (Certified Mail)

470

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

FHC CORPORATION,

Contest of Citation
Contestant

. ·v.

Docket No. WEST 80-495-RM
Citation No. 576956; 8/13/80

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

Docket No. -WEST 80-496-RM
Citation No. 576970; 8/13/80
FMC Mine

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

Civil Penalty Proceeding
Docket No. WEST 81-259-~1
A.O. No. 48-00152-05045 I
FMC Mine

FMC CORPORATION,
Respondent
DECISION
Appearances:

John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy,
P.C., Salt Lake City, Utah, for FMC Corporation;
James. R. Cato, Esq., Office of the Solicitor, U.S.
Department of Labor, Kansas City, Missouri, for
Secretary of Labor.

Before:

Administrative Law Judge Broderick
STATEMENT OF THE CASE

The above proceedings were consolidated for hearing and for the
purpose of this decision. They involve a contest of two citations
issued the same day, August 13, 1980, and a civil penalty proceeding
seeking penalties for the violations alleged in the same two citations.
Pursuant to notice, the cases were heard before Administr.ative Law
Judge John F. Cook on August 11 and 12, 1981, in Green River, Wyoming.
Judge Cook left the Commission before he could issue a decision, and
the parties have .agreed that I may decide the cases on ·the basis of

471

the transcript of the hearing and the exhibits introduced before
Judge Cook and the contentions of the parties in their posthearing
briefs. Terri Matson, and Federal Mine Inspectors William W. Potter
and Merrell Wolford testified on behalf of the Secretary of Labor;
Jerry Doan, Jeffery Munk, Karl O. Christensen, David M. Smith,
Charles R. Maggio, Russell W. Rollins and Dale Force, all employees
of FMC, testified on behalf of FMC Corporation. On the basis of the
entire record and considering the contentions of the parties, I make
the following decision:
APPLICABLE REGULATIONS
1. 30 C.F.R. § 57.9-3 provides:
be provided with adequate brakes·.

Powered mobile equipment shall

2. 30 C.F.R. § 57.9-37 provides: Mobile equipment shall not be
left unattended unless the brakes are set. Mobile equipment with
wheels or tracks, when parked on a grade, shall be either blocked or
turned into a bank or rib; and the bucket or blade lowered to the
ground to prevent movement.
FINDINGS OF FACT
1. The FMC Corporation (FMC) is the operator of a large
underground mine in Sweetwater County, Wyoming, known as the FMC Mine.
2. The subject mine produces trona, a natural soda mineral, and
its operation affects interstate commerce.
3. The parties have stipulated that FMC is a large operator, it
could satisfy the penalties if any are assessed against it, its past
history "is not extraordinary" and that the citations involved in
this proceeding were abated in good faith.
'·

4. On August 9, 1980, Terri Matson was employed in the subject
mine as a lube truck operator. Her duties including driving her
vehicle to the mining machines and providing necessary lubrication to
them during the maintenance shirt. Her truck included two oil tanks
and a grease can all with pumps operated by an air compressor on the
truck.
5. On the above date at about 8:00 p.m., she was servicing the
miner to prepare it for production which was planned for the second
half of the normal maintenance shift. Both lubrication ptimps were
operating: Matson was outside of the truck and was pumping the
hydraulic fluid into the large.tank (approximate capacity 50 gallons)
on the miner and a mechanic, Roger Brown, was filling the oil tank at
the head of the miner.

472

6. While the above operatipn was going on, the lube truck was
parked on a slight grade. The motor was running and the truck was in
second gear. The wheels of the truck were not blocked and the
vehicle was not turned into a rib. No blocks or chocks were present
in the vehicle. The parking brake was set.
7. The pumps "ran down" and Matson went back to "rev up" the
engine to increase the air pressure. As she did so, the truck started
forward. Matson stepped on the foot brake, but it went to the floor
and did not respond. The truck struck Roger Brown; he was pinned
between the truck and the miner and was injured.
8. The lube truck was equipped with an air over hydraulic
braking system, the air acting as a power assist and operating from
the same air compressor that powered the lubrication pumps.
9. On August 13, 1980, Inspector Wolford issued a citation under
section 104(d)(l) of the Act charging a violation of 30 C.F.R. § 57.9-3
because the lube truck did not have adequate brakes.
10. On August 13, 1980, Inspector Potter issued a citation under
section 104(a) of the Act charging a violation of 30 C.F.R. § 57.9-37
because on August 9, 1980, the lube truck was parked on a grade without
being blocked or turned into a rib.
ISSUES
1. On August 13, 1980, did the lube truck in question have
adequate brakes?
2. If it did not have adequate brakes, was this caused by the
unwarrantable failure of FMC?
3. If a violation of 30 C.F.R. § 57.9-3 is found, what is the
appropriate penalty?
4. On August 9, 1980, was the lube truck in question parked on
a grade and neither blocked nor turned into a bank or rib?
5. If a violation of 30 C.F.R. § 57.9-37 is found, what is the
appropriate penalty?

473

DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS
1.

ADEQUATE BRAKES

Inspector Wolford testified that his inspection
of the brakes indicated that the modification of the
hydraulic braking system to provide the air assistance
rendered the brakes marginal when the air compressor
provided between 75 and 90 p.s.i. and inoperable when
it fell below 75 p.s.i. He stated that the use of the
air compressor for the lube system could reduce the
air pressure to the above mentioned levels. Jerry
Doan, FMC maintenance supervisor, testified that
running the lubrication pumps depletes the pressure
in the air system and that if the air pressure gets
sufficiently low, the hydraulic brakes will fail.
The figures referred to by Inspector Wolford were
disputed by other witnesses for Respondent, but
their precise accuracy is not import~nt. Karl
Christensen, FMC Diesel foreman, testified that if
the hydraulic system is working properly and the
brake pedal goes to the floor, it could be explained
by inadequate air pressure. I accept as true and
accurate Ms. Matson's testimony that when she
stepped on the brake pedal just prior to the accident on August 9, 1980, the pedal went to the floor
and the brake did not operate. The only logical
explanation for this is a depletion in the air
pressure as a result of using the lubrication pumps.
On this basis, I conclude that the braking system
was inadequate because of the possibility of failure
due to its being tied in with the air compressor
operating the lubrication system.
There was also testimony (disputed) concerning
the holding ability of the parking brake while the
vehicle was in second gear, but this is not referred
to in the citation and I am not considering it.
(a)

UNWARRANTABLE FAILURE

An unwarrantable failure to comply with a
m~ndatory

safety standard (section 104(d)(l) of the
Act) has been defined as the failure to abate a
condition which the operator knew or should have
known existed or because of lack of due diligence or

474

reasonable care. Zeigler Coal Co., IBMA (1977)
1 MSHC 1518. The evidence in this record shows
(1) the operator deliberately altered the braking
system on the vehicle in question; (2) the operator
knew or should have known that the use of the lubrication pumps could deplete the air pressure and
cause a failure in the hydraulic braking system.
Therefore, I conc.lude that the violation was caused
by.FMC's unwarrantable failure to comply with the
regulation in question.
(b)

PENALTY CRITERIA

The violation was directly responsible for the
injury to Roger Brown. I conclude that it was
serious. Since I have previously concluded that it
was an "unwarrantable failure" violation, ipso facto,
it was due to FMC's negligence. FMC is a large
operator, with more than two and one half million man
hours worked each year. The history of prior violations is not such that penalties otherwise appropriate
should be increased because of it.
2.

FAILURE TO BLOCK WHEELS OR TURN INTO BANK OR RIB

There is little or no dispute that on August 9,
1980, Terri Matson parked her mobile vehicle in.order
to lubricate the miner. The vehicle was on a slight
grade and was not blocked. The vehicle was facing
an upward grade and the rear wheels were 5 or 6·feet
from the rib. That is 9 if it rolled backwards, it
would roll 5 or 6 feet before being stopped by the
rib. I conclude that these facts establish a violation of the standard contained in 30 C.F.R. § 57.9-37.
(a)

PENALTY CRITERIA

Clearly the violation could have resulted in
inJury. However, because the grade was gradual and
the distance the vehicle could have rolled was
limited, I conclude that the violation was only
moderately serious. This violation did not cause or
contribute to the injury to Mr. Brown.
Matson testified that she had no blocks on her
vehicle and had never blocked the vehicle in question.
She stated that she did not block the vehicle on
August 9, 1980 and did not turn the wheels into the

475

rib. She further stated that she had never seen other
miners in her crew block the wheels of their vehicles
or turn into a rib when the·y parked the vehicles.
Jeffrey Munk testified that although vehicles
are supposed to be chocked or turned into a rib when
parked, Ms. Matson (Foley) only "occasionally"
followed this procedure. For his own part, Munk
admitted that prior to August 9, 1980, he "might have
been a little lax on it, but for the most part we did,
yes." Matson's foreman testified that he instructed
her to block her vehicle when she parked it. However,
I conclude on the basis of all the testimony that the
policy was not strictly or vigorously enforced. I
therefore further conclude that the violation was
caused by FMC's negligence.
ORDER
IT IS ORDERED that the Contest of Citations 576956 issued
August 13, 1980, and 576970 is DENIED and the citations are AFFIRMED.
IT IS FURTHER ORDERED that Respondent in the penalty proceeding,
FMC Corporation, shall within 30 days of the date of this decision pay
the following civil penalties for the violations found herein to have
occurred:
Citation

30 C.F.R.
Standard

576956
576970

57.9-3
57.9-37

Penalty

Total

J
Distribution:

{LvV<L5

$ 500
$ 300
$ 800

k.f.vcfe--r,,,, ~

James A. Broderick
Administrative Law Judge

By certified mail

John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, P.C.,
50 South Main Street, Suite 1600, Salt Lake City, UT 84144
James R. Cato, Esq., Office of the Solicitor, U.S. Department of Labor,
911 Walnut Street, Suite 2106, Kansas City, MO 64106

476

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

FMC CORPORATION,

Contest of Citation
Contestant

v.

Docket No. WEST 80-506-ID1
Citation No. 576918; 8/27/80

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY .Al.'ID HEAL TH
ADMINISTRATION (MSHA),
Petitioner

FMC Mine

Civil Penalty Proceeding
Docket No. WEST 81-260-M
No. 43-00152-05046 I

A.O~

v.
FMC Mine
FMC CORPORATION,
Respondent
DECISION
Appearances:

John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy,
P.C., Salt Lake City, Utah, for FMC Corporation;
James R. Cato, Esq., Office of the Solicitor, U.S.
Department of Labor, Kansas City, Missouri, for
Secretary of Labor.

Before:

Administrative Law Judge Broderick
STATEMENT OF THE CASE

The above proceedings were consolidated by a bench order of Judge
Cook on August 12-, 1981. They involve a contest of a citation issued
August 27, 1980 and a civil penalty proceeding seeking penalties for the
violation charged in the contested c'itation and two other citations.
Pursuant to notice, the case was called for hearing by Judge Cook in
Green River, Wyoming on August 12, 1981. The parties submitted a
stipulation of fact on the record and agreed to certain exhibits being
introduced. The case was submitted for decision on the basis of the
stipulation and exhibits. Both parties have filed posthearing briefs.
Judge Cook left the Commission before he could issue a decision, and
the parties have agreed that I may decide -the cases on the basis of the
stipulation and exhibits submitted before Judge Cook and the contentions
of the parties in their posthearing briefs.

477

APPLICABLE REGULATIONS
1. 30 C.F.R. § 57.9-1 provides: Self-propelled equipment that
is to be used during a shift shall be inspected by the equipment
operator before being placed in operation. Equipment defects affecting safety shall be reported to, and recorded by the mine operator

***
2. 30 C.F.R. § 57.9-3 provides:
be provided with adequate brakes.

Powered mobile equipment shall

3. 30 C.F.R. § 57.9-37 provides: Mobile equipment shall not be
left unattended unless the brakes are set. Mobile equipment with
wheels or tracks, when parked on a grade, shall be either blocked or
turned into a bank or rib; and the bucket or blade lowered to the
ground to prevent movement.
FINDINGS OF FACT
1. ·The FMC Corporation (FMC) is the operator of a large underground mine in Sweetwater County, Wyoming, known as the FMC Mine.

2. The subject mine produces trona and its products enter
interstate commerce and its operation affects interstate commerce.
3. For all FMC mines, a total of 2,660,064 man hours are worked
annually; for the subject mine, a total of 2,624,064 man hours are
worked annually.
4. The subject mine had 245 paid violations of mandatory health
and ~afety standards between August 14, 1978 and August 13, 1980.
Twenty-nine of these violations involved the standards in 30 C.F.R.
§ 57.9; none involved violations of 57.9-1; two involved violations of
57.9-3; two involved violations of 57.9-37. In addition, I take notice
of a violation of 57.9-37 occurring on August 9, 1980 (for whiCh,
however, the citation was not issued until August 13, 1980) which is
the subject of a separate.proceeding, Docket No. WEST 81-259-M. I
conclude that this history is moderate in view of the size of the mine
and penalties otherwise appropriate should not be increased because of
it.
5. The parties have stipulated that penalties assessed in the
proceeding will not affect FMC's ability to continue in business.
6. All of the citations involved in this proceeding were abated
in good faith.

478

7. On August 12, 1980, John Nordgran, an employee of FMC, operated
a lube truck in the subject mine.
The running brake and the parking brake on the lube truck were
not operating properly on August 12, 1980: the parking brake wear
surface was worn out on one side and covered with grease and oil on
the other. The wheel brakes were substantially worn. The brakes were
caked with trona which can cause or contribute to brake failure.
Washing stations were available throughout the mine for washing trona
accumulations from brakes on vehicles.
8.

9. FMC posted a notice on the lube truck in question which read:
ATTENTION OPERATOR WILL MAKE DAILY PRE-SHIFT EXAMINATION OF EQUIPMENT
TO BE USED. (Tires, Brakes, Ground Trip, Dust Control System, Cables,
Controls, etc.). REPORT Ai'IT EQUIPMENT DEFECTS AFFECTING SAFETY
IMMEDIATELY TO YOUR FOREMAN OR SUPERVISOR.
10. FMC enforces the requirement for preshift inspections
pursuant to its labor agreement.
11. Lube truck operator Nordgran knew on August 12, 1980 that
the brakes on his vehicle were inadequate. He did not report this
fact to his supervisor. The condition of the brakes was not known to
FMC.
12. On August 12, 1980, Nordgran performed his normal duties of
lubricating mine equipment beginning at 4:00 p.m. At about 9:30 p.m.
he drove his truck to the Number 11 drill in No. 7 room, No. 3 crosscut
intersection in the subject mine to lubricate the drill.
13. Nordgran parked his lube truck on a slight incline sloping
down toward the drill. He did not set the parking brake and he did
not block the wheels nor was the vehicle turned into a rib.
14. No blocks or chocks were provided on the lube truck in
question.
15. FMC has policies and regulations requiring mobile equipment
operators to block or turn a vehicle into a rib when parked on a
grade and to set the brakes of the vehicle when unattended.
16. The policies above described were enforced through disciplinary actions pursuant to the Labor Relations Agreement between FMC and
the union representing the employees.
17. There was no record that Mr. Nordgran required close supervision or that he had previously violated safety regulations of FMC.

479

13. While Nordgran was lubricating the drill referred to in.
Finding of Fact No. 12, the lube truck rolled toward him and he was
struck and pinned between the truck and the drill. Nordgran sustained
two broken toes and contusions to his right leg.
19. There were no supervisory personnel in the area at the time
of the injury and the failure of Nordgran to block the truck or turn
it into a rib was not known to FMC.
20. The inadequate brakes contributed to the accident involving
Nordgran.
21. On August 14, 1980, Federal Mine Inspector Robert
Kinterknecht issued Citation No. 576909 alleging a violation on
August 12, 1980 of 30 C.F.R. § 57.9-37 because the lube truck in
question was parked on a grade of about one percent without being
blocked or turned into a rib. The inspector issued Citation
No. 576910 on the same day charging a violation of 30 C.F.R. § 57.9-3
because adequate brakes were not provided on the lube truck.
22. On August 27, 1980, Inspector Kinterknecht issued Citation
No. 576918 charging a violation of 30 C.F.R. § 57.9-1 because the
employee involved stated he haq not reported the inadequate brakes to
his supervisor but continued to operate the vehicle.
ISSUES
1. Did FMC violate the mandatory standards charged in the
citations?
2.

If it did, what is the appropriate penalty for each violation?
CONCLUSIONS OF LAW

1. On August 12, 1980, an FMC employee left the mobile equipment
he was operating unattended without· setting the brakes. He parked the
vehicle on a grade without blocking it or turning it into a bank or
rib. This constituted a violation of 30 C.F.R. § 57.9-37.
2. The violation directly resulted in an injury to a miner. I
conclude that the violation was serious even though the injury was to
a miner whose misconduct contributed to the violation. I .do not believe
that fact lessens the seriousness of the violation. This proceeding
is not a private action for damages, but the enforcement of a public
policy to bring a greater degree of safety to the nation's mines.

480

3. The parties have stipulated that FMC had and enforced
policies requiring the blocking of a truck parked on a grade or
turning the vehicle into a rib. However, blocks were not provided for
the vehicle in question. The driver stated that he did not block
the truck because it was too much bother for him to find blocks. The
vehicle was nor~ally used to service equipment in various parts of the
mine, and when service was performed, it would be parked. Under the
Gircumstances, a prudent mine operator would provide blocks for such
a vehicle. I conclude that FMC was negligent in failing to provide
blocks for the vehicle in question.
4. The parties have agreed that on August 12, 1980, the lube
truck in question did not have adequate brakes. This constitutes a
violation of 30 C.F.R. § 57.9-3.
5. The violation (inadequate brakes) contributed to the injury
which occurred on August 12, 1980. Inadequate brakes on a vehicle
used in an underground mine is self-evidently a serious safety hazard.
I conclude that the violation was serious.
6. FMC argues that the inadequate condition of the brakes was
solely caused by the.failure of the vehicle driver to remove the caked
trona dust from them and to report the condition of the brakes to his
supervisor. However, the stipulated facts show that the parking brake
wear surface was "worn out on one side and covered with grease and
oil on the other wear surface. The wheel brakes were substantially
worn." The caking of trona dust on the brake surfaces provided an
additional inadequacy. However, the brakes were clearly inadequate
without reference to the trona caking and had obviously been inadequate
for some time. I conclude that FMC should have known of the inadequate
brakes and was negligent for failing to have them repaired.
7. The parties have stipulated that the operator of the lube
truck did not report the inadequate brakes on his vehicle - an
equipment defect affecting safety - to the operator, and that it was
not recorded by the operator. This constitutes a violation of 30 C.F.R.
§ 57. 9-1.
8. The failure to report a safety defect is a serious matter,
but in this case I conclude that the seriousness of the violation is
merged in the violation of 30 C.F.R. § 57.9-3. That is, the operating
of the vehicle without adequate brakes was the serious violation. The
failure to report it, I conclude was nonserious.
9. There is no indication in the record that FMC knew or had
reason to have known of the violation. I conclude that the violation
was not caused by FMC's negligence.

481

ORDER
IT IS ORDERED that the contest of Citation No. 576918 is DENIED
and the citation is AFFrRMED.
IT IS FURTHER ORDERED that the FMC Corporation, Respondent in
the civil penalty proceeding, shall, within 30 days of the date of
this decision, pay the following civil penalties for the violations
found herein to have occurred:
Citation

30 C.F.R.
Standard

576909
576910
576918

57.9-37
57.9-3
57.9-1

Penalty
$

Total

500
500
40
$1,040

//tiHL£5
.~/11-vdcfi.-t t/lt_
James A. Broderick

J Administrative Law Judge
Distribution:

By certified mail

John A. Snow, Esq., Van Cott, Bagley~ Cornwall & McCarthy, Suite 1600,
50 South Main Street, Salt Lake City, UT 84144
James R. Cato, Esq., Office of the Solicitor, U.S. Department of Labor,
911 Walnut Street, Room 2106, Kansas City, MO 64106

482

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

11AR 151982

Complaint of Discharge,
Discrimination, or Interference

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of THOMAS H. MAY,
Complainant

Docket No. KENT 81-216-D

v.
EASTERN COAL CORPORATION,
Respondent
ORDER GRANTING MOTION TO WITHDRAW
Counsel for the Secretary of Labor filed on March 8, 1982, in the
above-entitled proceeding a motion to withdraw the complaint filed on
behalf of Mr. Thomas H. May because the Secretary has found that no violation of section 105(c)(l) of the Federal Mine Safety and Health Act of
1977 occurred. Paragraph 6 of the complaint filed in Docket No. KENT
81-216-D alleged that respondent had refused to hire Mr. May "* * * because he was the subject of a medical evaluation in that his pre-employment
chest X-ray revealed evidence of pneumoconiosis." The motion to withdraw
states that it has now been determined that Mr. May was not at any time
the "*. * * subject of medical evaluations and potential transfer under a
standard published pursuant to section 101" of the Act. The motion,
therefore, concludes that the statutory prerequisite, that is, the existence of a protected activity required in order to establish a violation
of section 105(c)(l), does not exist.
The motion further states that Mr. May has been advised of the aforesaid finding and that he has been told that he may file a complaint with
the Commission within 30 days after he receives notification of the fact
that the Secretary has found that no violation of section 105(c)(l) has
occurred. The motion to withdraw requests t.hat the motion be granted with
the understanding that Mr. May will have 30 days from the time he receives
the order granting the motion to file his own complaint with the Commission pursuant to section 105(c)(3) of the Act.
Section 105(c)(3) of the Act provides, in pertinent part, as follows:
(3) Within 90 days of the receipt of a complaint filed
under paragraph (2), the Secretary shall notify, in writing,
the miner, applicant for employment, or representative of
miners of his determination whether a violation has occurred.
If the Secretary, upon investigation, determines that the
provisions of this subsection have not been violated, the
complainant shall have the right, within 30 days of notice
of the Secretary's determination, to file an action in his
own behalf before the Commission, charging discrimination or
interference in violation of paragraph (1). * * *

483

The Act does not specifically cover a situation, such as. this, in which
the Secretary has reversed his original belief that a violation did occur
to a finding that a violation of section 105(c)(l) did not occur. The
Secretary cannot be forced to pursue an action before the Commission after
further review of the facts convinces him that his original finding of a
violation was in error. Therefore, I find that the motion to withdraw
should be granted with the understanding that Mr. May has a period of 30 ·
days after receipt of this order within which to file a complaint in his
own behalf under section 105(c)(3) of the Act.
The answer to the complaint raises some legal issues which will be
difficult for a non-lawyer to understand and oppose either with an evidentiary presentation or with countervailing legal arguments. The certificates of service show that a copy of the complaint, a copy of respondent's
answer to the complaint, and a copy of the motion to withdraw the complaint were sent to Mr. May. I strongly recommend that Mr. May take the
three aforementioned documents to an attorney and seek legal advice in
determining whether he should file a complaint under section 105(c)(3)
and, if so, how he should frame the allegations which would constitute the
basis for his argument that a violation of section 105(c)(l) of the Act
has occurred.
Nearly all complainants who file their own complaints under section
105(c)(3) do so under the mistaken impression that they are filing an
appeal of the Secretary's finding that no violation occurred. Most complainants also assume that the Commission operates just like MSHA in that
they think the Commission has investigators who interview respondent's
employees and officials for the purpose of gathering information to support the Commission's findings. I should note, first of all, that the
Commission is not a branch of the Department of Labor. Therefore, we do
not have in our files copies of the data gathered by MSHA's investigators
and the Commission does not have investigators. When a complaint is filed
with the Commission, it is assigned to an administrative law judge who
holds a hearing at which the complainant has the burden of proving that a
violation of section 105(c)(l) occurred. The proof is normally presented
through witnesses under oath who will be subject to cross-examination by
counsel for respondent. Respondent will have the opportunity of presenting
witnesses to testify in opposition to any statements made by complainant
and his witnesses. Both the complainant and respondent will also be permitted to introduce documentary evidence when it is properly supported
by witnesses who can attest to its authenticity.
After the judge assigned to the case has heard any arguments which
either party wishes to offer, he will study the testimony· and documentary
evidence and make findings of fact. Based on his findings of fact, he
will determine whether a violation of section 105(c)(l) has been proven
by complainant.
I have pointed out the way complaints are handled so that Mr. May
can determine for himself whether he should try to proceed in a case as

484

complicated as his without first securing an attorney to repr~sent him.
It should also be noted that if Mr. May wins his case, respondent will be
ordered to reimburse Mr. May for legal expenses, but if Mr. May loses his
case, he will be liable personally to pay all expenses associated with
filing the complaint and presenting·evidence in support of the complaint
when the case is eventually scheduled for hearing.
WHEREFORE, for the reasons given above, it is ordered:
(A) The Secretary of Labor's motion to withdraw the complaint is
granted, the complaint is deemed to have been withdrawn, and the proceedings in Docket No.· KENT 81-216-D are dismissed.
(B) If he so desires, Mr. Thomas H. May has a period of 30 days
from receipt of this order to file a complaint in his own behalf under
section 105(c)(3) of the Act.

~ rJ. ~$/!~

Richard C. Steffey
Administrative Law Judge
(Phone: 703-756-6225)

Distribution:
Darryl A. Stewart, Esq., Office of the Solicitor, U. S. Department
of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Mr. Thomas H. May, Route 1, Box 39, Huddy, KY
Mail)

41553 (Certified

Thomas C. Means, Esq., Attorney for Eastern Coal Corporation,
Crowell & Moring, 1100 Connecticut Avenue, NW, Washington, DC 20036
(Certified Mail)

485

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

)
)
)
)
)
)
)
)

PRICE RIVER COAL COMPANY, successor to,)
)
BRAZTAH CORPORATION,
Respondent.

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 79-39
A/O No. 42-01202-03011
MINE: Braztah

5

)
)

)
~~~~~~~~~~~~~~~~~~~~

Appearances:
Phyllis K. Caldwell, Esq., Office of Henry C. Mahlman,
Regional Solicitor, United States Department of Labor,
Denver, Colorado
For the Petitioner
Stanley V. Litizzette, Esq., Price River Coal Company,
Helper, Utah
For the Respondent
Before: Judge John J. Morris
DECISION
The Secretary of Labor, on behalf of the Federal Mine Safety and
Health Administration (MSHA), charges respondent Price River Coal Company,
successor in interest to Braztah Corporation, with violating the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. 801 ~seq.
Petitioner issued his citation number 9945672 under the authority of
Section 104(f) of the Act alleging that Braztah violated Title 30, Code of
Federal Regulations § 70.lOOB.
The cited standard provides as follows:
Subpart B - Dust Standards
§ 70.100 Dust standards; respirable dust.
(b) Effective
December 30, 1972, each operator shall continuously maintain
the average concentration of respirable dust in the mine atmosphere during each shift to which each miner in the active workings of such mine is exposed at or below 2.0 milligrams of respirable dust per cubic meter of air.

486

The Secretary proposes a civil penalty of $240 for this violation.
ISSUES
The issues are whether Price violated the standard and, if it did,
what penalty is appropriate.
SUMMARY OF THE EVIDENCE
The evidence, which is uncontroverted, shows that the citation here
was issued by MSHA inspector Al Gray on the basis of an analysis generated
by a computer printout (Tr. 4). Ten samples, which were submitted by
respondent to MSHA, show accumulated respirable dust totals of 21.3
milligrams. Within limits MSHA deems that a violation occurs at 20.9
milligrams (Tr. 5).
The citation issued to respondent cites as violative of the Act the
following condition:
The concentration of respirable dust in section 030-0
is above the 20 milligram limit. Based on the results ·of
10 samples collected by the company's sampling program, the
cumulative total is 21.3 milligrams for an average of 2.1
milligrams per cubic meter of air. See attached computer
printout dated 11/20/70. Respirable dust samples shall be
collected from the working environment of the high-risk
occupation in section 030-0 on all production shifts and
continued until compliance is attained. Approved respiratory
equipment shall be made available to all persons working in
the area (Exhibit P-1).
The potential health hazard of contracting pneumoconiosis arises .from
prolonged exposure to respirable dust (Tr. 5, 15). Four miners were
exposed (Tr. 15-16).
DISCUSSION
The Commission has ruled that the respirable dust standard is
enforceable. Alabama By-Products Corporation 2 FMSHRC 2760 (October
1980). Further, the foregoing facts establish a violation of the
standard.
Respondent offered no evidence but contends that the government cannot
prevail such it failed introduce an essential part of its case (Tr. 27).
Respondent did not identify the "essential part" of MSHA's case but I
assume respondent refers to the failure of MSHA to introduce the computer
printout.

487

I find no merit in this contention. Respondent could have, but did
not, move that the printout be produced. Further, respondent apparently
had the computer printout in its possession. The citation reads in part:
"See attached computer printout" (Exhibit pl). The citation should be
affirmed.
CIVIL PENALTY
Section llO(i) of the Act [30 U.S.C. 820(i)] contains the statutory
criteria for ass~ssing a civil penalty.
In considering that criteria in the light of the facts presented here
I deem that the proposed penalty of $240 is appropriate.
Based on the foregoing findings of fact and conclusions of law I enter
the following:
ORDER
Citation 9945672 and the proposed penalty therefor are AFFIRMED.

Law Judge
Distribution:
Phyllis K. Caldwell, Esq.
Office -0f the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Stanley V. Litizzette, Esq.
178 South Main Street
Helper, Utah 84526

488

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

MAR 161982

)
)

)

CIVIL PENALTY PROCEEDING

)

)

Petitioner,
v.

PRICE RIVER COAL COMPANY,
successor to
BRAZTAH CORPORATION,
Respondent.

)
)
)
)
)
)
)
)
)

DOCKET NO. WEST 79-59
A/C No. 42-00165-03016
MINE: Braztah No. 3

~~~~~~~~~~~~~~~~~~~

Appearances:
Phyllis K. Caldwell, Esq.,
Office of Henry C. Mahlman, Regional Solicitor,
United States Department of Labor,
Denver, Colorado
'
For the Petitioner
Stanley V. Litizzette, Esq.,
Price River Coal Company,
Helper, Utah
For the Respondent
Before: Judge John J. Morris
DECISION
The Secretary of Labor on behalf of the Federal Mine Safety and Health
Administration, (MSHA), charges respondent Price River Coal Company,
successor in interest to Braztah Corporation, with violating a safety
regulation adopted under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. 801 ~seq.
Citation 247212 alleges a violation of 30 C.F.R. 75.400.
regulation provides as follows:
§ 75.499

The

Accumulation of combustible materials.
(Statutory Provision)

Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials
shall be cleaned up and not be permitted to accumulate in
active workings, or on electric equipment therein.
A penalty of $225 is proposed for the foregoing violation.

489

Citation 247213 alleges a violation of 30 C.F.R. 75.316.
regulation provides as follows:
§

The

75.316 Ventilation system and methane and dust
control plan.

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 and set out in
printed form on or before June 28, 1970. 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.
A penalty of $130 is proposed for this violation.
ISSUES
The threshold issue is whether the proposal to assess penalties should
be dismissed for late filing; if not, a further issue is whether respondent
violated the regulations and, if so, what penalty is appropriate.
LATE FILING OF PROPOSED PENALTIES
The threshold issue determinative of this case is whether the proposed
penalties should be vacated due to the late filing by petitioner of his
proposal for penalties.
The record shows that respondent was cited on December 20, 1978 for
the alleged violations of the regulations. On November 5, 1979 petitioner
filed his proposal for penalties together with a motion for the Commission
to accept such late filing. In support of his motion petitioner recited
that he had a high volume of case workload; further, he had lacked clerical
personnel since mid-September, 1979.
Respondent opposed the motion for late filing and renewed the
objection at trial (Tr. 3). In its written motion in opposition Respondent states that its key witness, Stewart Jones, on whom the initial
citation was served, had resigned his position with the company and his
present whereabouts were unknown.
On January 4, 1980 an order was entered accepting the late filing.
Respondent's objection were overruled but it was indicated that respondent
could offer evidence of prejudice at the hearing on the merits. The
hearing took place in Salt Lake City, Utah on March 19, 1981.
In Salt Lake County Road Department 3 FMSHRC 1714 (July 1981) the
Commission considered the effect of the Secretary in failing to comply

490

with 29 C.F.R. § 2700.27.J:./ Basically, the Connnission directs that any
late filing by the Secretary must be based on adequate cause. In addition,
an operato~ may object to a late penalty proposal on the grounds of
prejudice.
At the hearing the evidence showed that during the inspection company
representative Stewart Jones accompanied MSHA inspector Ted Coughman (Tr.
9, 10). At some point Jones called John Presett, a company safety
inspector (Tr. 20, 24). Presett knew the area of the west belt drive had
been rock dusted and he went to that location but he didn't walk the cited
area (Tr. 25-28).
At the hearing John O'Greene, the director of safety for respondent,
testified he did not know of Jones' whereabouts (Tr. 40).
DISCUSSION
On the authority of Salt Lake County Road Department, supra, respondent's motion to dismiss is sustained.
Other than to refer to his high volume of cases the Secretary offers
no explanation for his failure to file his proposal for penalty from the
time the notice of contest was received until his clerical personnel
problems arose in mid-September, 1979.
I further find that the absence of a key witness, Stewart Jones,
prejudiced respondent's case. I do not consider that the two page hand
written statements of Stewart Jones received in evidence alleviates the
prejudice to respondent's defense (Exhibit Rl).
For the foregoing reason I enter the following
ORDER
Citations 247212 and 247213 and all proposed penalties therefor are
VACATED.

1/

The Connnission regulation pertaining to filing provides as follows:
§

2700.27 Proposal for a penalty.

(a) When to file. Within 45 days of receipt of a timely
notice of contest of a notification of proposed assessment of
penalty, the Secretary shall file a proposal for a penalty with
the Connnission.

491

Distribution:
Phyllis K. Caldwell, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
S. V. Litizzette, Esq.
Price River Coal Company
178 South Main Street
Helper, Utah 84526

492

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

PRICE RIVER COAL COMPANY,
successor to
BRAZTAH CORPORATION,

)
)
)
)
)
)
)
)
)
)

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 79-366
A/C No. 42-01202-03019
MINE: Braztah No. 5

)
)
)
)

Respondent.
~~~~~~~~~~~~~~~~~~~

Appearances:
Phyllis K. Caldwell, Esq.,
Office of Henry C. Mahlman, Regional Solicitor,
United States Department of Labor,
Denver, Colorado
For the Petitioner
Stanley V. Litizzette, Esq.,
Price River Coal Company,
Helper, Utah
For the Respondent
Before: Judge John J. Morris
DECISION
The Secretary of Labor, on behalf of the Federal Mine Safety and
Health Administration, (MSHA), charges respondent Price River Coal Company,
successor in interest to Braztah Corporation, with violating a safety
regulation 1../ adopted under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. 801 ~seq. Respondent denies the violation
occurred.

1/

The cited regulation, 30 C.F.R. 77.1104 provides as follows:
§

77.1104 Accumulations of combustible materials.

Combustible materials, grease, lubricants, paints, or fla11Unable
liquids shall not be allowed to accumulate where they can create a fire
hazard.

493

After notice to the parties a hearing on the merits was held on March
19, 1981 in Salt Lake City, Utah. The parties waived the filing of post
trial briefs.
ISSUES
The issues are whether the citation was vague, whether Price violated
the regulation and, if so, what penalty, is appropriate.
SUMMARY OF THE EVIDENCE
On June 12, 1979, MSHA's duly authorized representative Blake Hanna
and Braztah safety manager John Tatton, inspected the mine (Tr. 11, 13, 82,
83).
Over a period of time coal dust, the consistency of sand, had
accumulated two to six inches deep along the full 1200 foot length of the
#4 belt conveyor. The 42 inch wide conveyor was touching the pile for
about 12 feet (Tr. 13, 14, 19-23, 28, Pl, P2).
A pile of coal dust, estimated to weigh 10 tons, was located 33 to 60
feet from the mine fan (Tr. 45, 58, Pl, P2).
Dry tumble weeds, brush and small pieces of paper were under a nearby.
bridge (Tr. 27, P2).
Oil cans, weeds, and grease cartridges littered the area (Tr. 18, 19,
41, Pl, P2).
Ignition sources included possible spontaneous combustion from the
accumulated coal dust, a nearby battery charging station, a welder, and
electrical boxes (Tr. 17, 22-23, 28-29, 42, Pl).
DISCUSSION
Respondent contends that the citation is vague (Tr. 10, 107). The
citation issued on the day on the inspection recites that Section 77.1104
was violated and it further reads as follows:
The operating number 4 surface belt had accumulations
of fine dry coal dust and other combustible materials,
from the number 4 portal to the tailpiece (amended to
headpiece, Tr. 7), a distance ·of about 1200 feet.
The fine dry coal dust was from 2" to 6" deep under the
belt. A pile of loose coal (about 10 tons) was stored
within 60 feet of the mine fan. Dry weeds, wood, paper,
and empty oil cans were scattered throughout most of the
area surrounding the belt.
Section 104(a) of the Act requires, in part, that a citation be in
writing and "shall describe with particularity the nature of the
violation." In this case the company safety inspector had no difficulty in
starting to abate the violative conditions. In fact, the next morning when
a closure order was issued Tatton told the inspector he didn't know why the

494

work wasn't finished (Tr. 88). I find no merit to respondent's argument.
Cf Jim Walter Resources, Inc., 1 FMSHRC 1827 (November, 1979).
CIVIL PENALTY
Section llO(i) of the Act [30 U.S.C. 820(i)] provides as follows:
The Connnission shall have authority to assess all civil penalties
provided in this Act. In assessing civil monetary penalties, the
CoDDilission shall consider the operator's history of previous violations,
the appropriateness of such penalty to the size of the business of the
operator charged, whether the operator was negligent, the effect on the
operator's ability to continue in bu~iness, the gravity of the violation,
and the demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation.
The parties stipulated that Price employes 870 miners and this
particular mine produces 2400 tons of coal a day (Tr. 5).
The gravity is severe. I consider the negligence of respondent to be
relatively high although in its favor is the fact that it did abate the
violative conditions.
Considering the statutory criteria I am unwilling to disturb the proposed civil penalty of $395.
Based on the foregoing findings of fact and conclusions of law I enter
the following
ORDER
Citation 789593 and the proposed civil penalty therefor are AFFIRMED.

Judge
Distribution:
Phyllis K. Caldwell, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Stanley V. Litizzette, Esq.
Price River Coal Company
178 South Main Street
Helper, Utah. 84526

495

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

FMC CORPORATION,

Application for Review
Contestant
Docket No. WEST 81-169-RM
Citation/Order No. 577094; 1/6/81

v ..

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

FMC Mine

Civil Penalty Proceeding
Docket No. WEST 81-278-H
A.O. No. 48-00152-05044 B

v.
FMC Mine
FMC CORPORATION,
Respondent
DECISION
Appearances:

John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy,
P.C., Salt Lake City, Utah, for FMC Corporation;
James R. Cato, Esq., Office of the Solicitor, U.S.
Department of Labor, Kansas City, Missouri, for
Secretary of Labor.

Before:

Administrative Law Judge Broderick
STATEMENT OF THE CASE

The above proceedings were consolidated by an order of Judge John F.
Cook for hearing and for the purpose of this decision. FMC Corporation
filed an Application for Review and ~fotice of Contest of an order/
citation issued under section 107(a) and 104(a) of the Federal. ~ine
Safety and Health Act. The order charged that an inuninent danger
existed and the citation alleged three violations of mandatory safety
standards. The Secretary filed a civil penalty proceeding seeking
penalties for the alleged violations. Pursuant to notice, the cases
were heard before Judge Cook on August 13, 1981 in Green River, Wyoming.
Judge Cook left the Commission before he could issue a decision, and the

496

parties have agreed that I may decide the cases on the basis of the
transcript of the hearing and the exhibits introduced before Judge
Cook, and the contentions of the parties in their posthearing briefs.
Federal Mine Inspector Merrill Wolford testified on behalf of the
Secretary; Steven M. Simpson, Darrel R. Nystrom, Ted K. Walker and
Karl D. Christensen testified on behalf of FMC. On the basis of the
entire record and considering the contentions of the parties, I make
the following decision:
STATUTORY PROVISIONS
1.

Section 107(a) of the Act provides in part:

If, upon any inspection or investigation of a coal
or other mine which is subject to the Act, an authorized
representative of the Secretary finds that an imminent
danger exists, [he] • • • shall • • • issue an order
requiring the operator • • • to cause all persons,
exce~t those persons referred to in section 104(c)., to be
withdrawn from, and to be prohibited from entering'
[the area of danger] • • • •
2. Section 3(j) of the Act provides: "'imminent danger' means the
existence of any condition or practice in a coal or other mine, which
could reasonably be expected to cause death or serious physical harm
before such condition or practice can be abated."
REGULATORY PROVISIONS
L
30 C.F.R. § 57.9-3 provides:
be provided with adequate brakes."

"Powered mobile equipment shall

2. 30 C.F.R. § 57.4-24(c) provides: "Fire extinguishers and
fire suppression devices shall be: * * * replaced with a fully charged
extinguisher or device, or recharged immediately, after any discharge
is made from the extinguisher or device."
3. 30 C.F.R. § 57.9-2 provides: "Equipment defects affecting
safety shall be corrected before the equipment is used."
FINDINGS OF FACT
1. The FMC Corporation (FMC) is the operator of a large mine in
Sweetwater County, Wyoming known as the FMC Mine.
2.

The operation of FMC's mine affects interstate commerce.

497

3. For all FMC mines, a total of 2,660,064 man hours are worked
annually; for the subject mine, a total of 2,624,064 man hours are
worked annually.
4. The subject mine had a total of 254 paid violations of
mandatory standards between January.6, 1979 and January 5, 1981.
Thirty-two of these violations involved the standards in 30 C.F.R.
§ 57.9; 12 involved violations of 57.9-2; two involved violations of
57.9-3. Eighteen involved the standards in 30 C.F.R. § 57.4, four of
which involved violations of 57.4-24. I conclude that the history is
moderate in view of the size of the mine, and penalties otherwise
appropriate will not be increased because of it.
5. The parties have stipulated that any penalties assessed in
this proceeding will not affect FMC's ability to continue in busi~ess.
6. The violations alleged in the order/citation involved herein
were abated in good faith.
7. On January 6, 1981, at about 10:00 a.m., Darrel Nystrom, a
mechanic employed by FMC, drove the No. 7 Size Brute mantrip an unknown
distance to the 3 shaft warehouse in the mine to pick up some parts.
Earlier that morning, Steven M. Simpson, also a mechanic at FMC, drove
the same vehicle a distance of about 1 mile underground to the place
where Nystrom obtained it. Both men made a general inspection of the·
vehicle before driving it including the brake pedal. Simpson noticed
that the leaf spring was disconnected from the shackle. Neither found
any difficulty with the brakes, either before or during their operation
of the vehicle.
8. On January 6, 1981, Federal Mine Inspector Herrill Holford
conducted a regular inspection of the subject mine. He saw the No. 7
Sign Brute Mantrip being driven up to the shop area, so he inspected
it.

9. On January 6, 1981, the front brake lining on the subject
vehicle was broken off and hanging down underneath the vehicle. The
line had been flattened and doubled to seal it off and prev.ent the
fluid from braking. This rendered the front wheel brakes of the
vehicle inoperative. The real-wheel brakes were operative at this
time.
10. On January 6, 1981, the battery behind the passenger seat in
the subject vehicle had exposed, uncovered connectors and had a hole
of undetermined size in the top of it.
11. On January 6, 1931, the fire extinguisher on the vehicle was
completely discharged.

498

12. On January 6, 1981, the front spring was separated from the
shackle because of a missing bolt.
13. On January 6, 1981, Inspector Wolford issued a combined order
and citation in which he f oun<il that the condition of the vehicle constituted an imminent danger and ordered it remaved from service until
repaired. He also cited FMC for three alleged violations of mandatory
safety standards.
14. The vehicle in question was ordinarily lilOt driven at a speed
in excess of 10 miles per hour. The rear wheel brakes are capable of
stopping the vehicle under normal circumstances, but the braking
capacity of 'the vehicle was diminished by the absence o.f the frontwheel brakes.
15. The condition of the brakes was evident and should have been
known to FMC.
16. The condition of the spring skackle could affect the driver's
ability to steer and stop the vehicle. It was an equipment defect
affecting safety.
17. The hole in the battery could have caused an injury by
permitting acid to be splashed on a passenger in the mantrip. However,
the hole was very small and .the battery out of the way of passengers
so the likelihood was injury was small. This was an e~uipment defect
affecting safety.

13. The conditions described in Findings 16 and 17 were evident
and should have been known to FMC.
19. The discharged fire extinguisher an the vehicle was evident
and should have been known to FMC.
ISSUES
1. Did the condition of the No. 7 Sign Brute Mantrip in the
subject mine on January 6, 1981, constitute an imminent daRger?

2.

Did the vehicle in q~estion have a8equate brakes o-n January 6,

1981?
· 3. If a violation of 30 C.F.R. § 57.9-3 is found, what is the
appropriate penalty?
4. Did the condition of the battery and the spring shackle on
the subject .vehicle on January 6, 1981, constitute equipment defects
affecting safety?

49-9

5. If a violation of 30 C.F.R. § 57.9-2 is found, what is the
appropriate penalty?
6.

What is the appropriate penalty for the violation of 30 C.F.R.

§ 57.4-24?

CONCLUSIONS OF LAW
1.

Imminent Danger

The imminent danger withdrawal order by its terms resulted from
all of the cited conditions. However, the inspector testified that
neither the condition of the battery nor the condition of the fire
extinguisher was by·itself an imminent danger, and there is no evidence
that either of these conditions was related to or exacerbated the
conditions caused by the brakes or spring shackle. Ultimately, I conclude, the existence vel non of an imminent danger depends upon the
condition of the brakes, and possibly the extent to which that condition may have been exacerbated by the condition of the spring shackle.
Typically, an imminent danger withdrawal order involves a general
condition of the mine: float dust, gas, a roof condition. See
Old Ben Coal Corporation v. Interior Board, 525 F.2d 25 (7th Cir. 1975);
Freeman Coal Mining Company v. Interior Board, 504 2d 741 (7th Cir.
1974); Cyprus Industrial Mineral Corp. v. Secretary of Labor, 1 FMSHRC
2069 (1978). Of course, an item of equipment can cause an imminent
danger where its condition may threaten an explosion or fire. Further,
a vehicle without any brakes could be an imminent danger - to its
occupants and to others in the mine. The condition found here is a
closer question. It seems reasonable to conclude that a vehicle
equipped with four wheel brakes has diminished stopping power if its
front brakes are inoperative. But the vehicle normally is operated at
10 miles per hour or less. It was driven prior to the order by two
operators a total of more than a mile and no difficulty in stopping
was encountered. After issuing the order, the inspector permitted FMC
to move the vehicle which argues against a finding of imminent danger.
I conclude that the condition of the vehicle in question was not such
as could reasonably be expected to cause death or serious physical
harm before the condition could be abated.
UNWARRA.."t\l'TABLE FAILURE
No order or citation was issued under section 104(d)(l) of the
Act for an unwarrantable failure violation. The Secretary argues that
if the condition of the vehicle did not constitute an imminent danger,
it was an unwarrantable failure violation under section 104(.d)(l).
Since FMC was not charged with an unwarrantable failure violation, I
conclude that this question is not before me in these proceedings, and
I do not r·ule on it.

50(}

ADEQUATE BRAKES
I conclude that a vehicle equipped with front and rear wheel
brakes does not· have "adequate" brakes within the meaning of that term
in 30 C.F.R. § 57.9-3 when the front brakes are inoperative. Since the
front brakes supply more than 50 percent of the stopping power, the
vi0lation of the standard was serious. The condition was obvious to
visual inspection and therefore the violation was due to the negligence
of FMC.
EQUIPMENT DEFECTS
The condition.of the spring shackle and the condition of the
battery were defects affecting safety. Therefore, a violation of
30 C.F.R. § 57.9-2 was shown. Each of the conditions was moderately
serious since either could have resulted in injury. Both were due to
FHC's negligence.
FIRE EXTINGUISHER
FMC has conceded that the discharged fire extinguisher constituted
a violation of 30 C.F.R. § 57.4-24(c). The condition was moderately
serious even though there is no specific requirement that a fire
extinguisher be on the vehicle, since in an emergency, a miner might
rely on a functioning extinguisher being on the truck. The condition
was long standing and caused by FMC's negligence.
ORDER
Based upon the above findings of fact and conclusions of law, IT
IS ORDERED that the application for review of Order No. 577094 IS
GRANTED and the ORDER, as an order, IS VACATED.
IT IS FURTHER ORDERED that the Citation 577094 is AFFIRMED.
IT IS FURTHER ORDERED that FMC Corporation shall, within 30 days
of the. date of this order, pay the following civil penalties for
violations found herein to have occurred.
30 C.F.R.
Standard

Penalty

$ 500

57.9-3
57.9-2
57.4-24(c)
Total

250
150
$ 900

.A15Uc1&Vl·~J/

1.__

)

C{.;HLL-:;
James A. Broderick
Administrative Law Judge

(~

501

Distribution:

By certified mail

\

John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, P.C.,
Suite 1600, 50 South Main Street, Salt Lake City, UT 84144
James R.' Cato, Esq., Office of the Solicitor U.S. Department of Labor,
911 Walnut Street, Suite 2106, Kansas City, MO 64106

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

)
)
)
)
)

)
)

v.
ALLIED CHEMICAL CORPORATION,
Respondent.

)
)
)

•

t1AR 19198Z

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 79-165-M
ASSESSMENT CONTROL NO.
48-00155-05010
MINE: Alchem Trana

)
)

Appearances:
Edward H. Fitch, Esq., Office of the Solicitor,
United States Department of Labor, Arlington, Virginia
For the Petitioner
John A. Snow, Esq., Vancott, Bagley, Cornwall and McCarthy,
Salt Lake City, Utah
For the Respondent
Before: Judge John J. Morris
DECISION
The Secretary of Labor, on behalf of the Mine Safety and Health
Administration, (MSHA), charges respondent, Allied Chemical Corporation,
(Allied), with violating various safety regulations adopted under the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. 801 et seq.
Respondent denies that the violations occurred..
- -After notice to the parties a hearing on the merits was held in Green
River, Wyoming.
ISSUES
The issues are whether Allied violated the regulations and, if so, what
penalty, is appropriate.

503

CITATION 336653
This citation alleges a violation of Title 30, Code of Federal
Regulations, Section 57.9-2 which provides as follows:
57.9-2 Mandatory. Equipment defects affecting safety
shall be corrected before the equipment is used •.
FINDINGS OF FACT
The evidence is conflicting.
credible.

I find the following facts to be

In Allied's mine the mineral trona is sheared from the face and
deposited on a ~hain conveyor. By other conveyors and crushers the trona
is then moved t~ a shaft area (Tr. 36). The mining technique at this site
features a longwall mining unit. The roof of the mine at this location is
supported by an overhead canopy which is a portion of the longwall miner.
The canopy is, in turn, supported by hydraulic jacks. There are probably
180 chocks, or jacks, in the 400 feet of the longwall mine. There are six
legs supporting the canopy at the tailgate and headgate areas (Jansen 20,
64). "

JJ

The cause of this litigation is a 3/4 inch soft steel bolt
either six or eight inches long which intersects the chock near the point
where the cylinder fits into a two or three inch cup (Tr. 35, Jansen 20-21,
38; G 27, G 29).
The purpose of the steel bolt is to keep the chock from twisting. If
the chock twisted it could tear up the packing (Jansen 20-21). In
addition, hydraulic lines are wrapped around the legs. If, due to the
twisting motion, the lines broke you would start to loose hydraulic
pressure (Jansen 22). The bolts are of a soft steel and are designed to
break (Jansen 24, 38).
The citation here was issued because two bolts were missing (Tr. 111,
231). ·MSHA inspector Walford's opinion was that this was a serious maintenance defect affecting safety (Tr. 232). Further, in Walford's view
anything made to certain specifications should be maintained that way (Tr.
242).
The metal of the longwall unit weighs 50 tons and each chock can
support 100 tons of overburden (Jansen 61, 64). As the mining for the
trona advances the longwall miner and its chocks are pulled forward (Jansen
64).

1/ The bolt received in evidence was larger than the type used on the
chocks in this case (Exhibit 18).

504

DID A VIOLATION OCCUR
The vital portion of the standard in contest requires that "equipment
defects affecting safety" shall be corrected.
It is uncontroverted that the soft steel bolts in two different chocks
were missing. It is clear that the steel bolts l:_/ prevent the chocks
from twisting. By preventing the twisting the integrity of the fittings
and their attached hydraulic lines is preserved. The absence of any bolt
is accordingly an "equipment defect."
The next and more difficult question is whether, within the terms of
the regulation, the described equipment defect was one "affecting safety."
Allied strenously argues that only its experts are credible since they
have worked for many years with this complex machine which is the only one
in the area and the only one in the United States not located in a coal
mine.
Allied also vigorously attacks the credibility of the MSHA inspectors
due to their lack of expertise concerning any longwall miner.
The CoI1U11ission does not blindly follow any expert witness. However, I
am persuaded by MSHA's evidence. In view of the close issue concerning the
respective experts I deem it necessary to set out MSHA's credible evidence
on this point. The testimony of inspector Jacobson: you would want the
bolt in place to prevent it from detaching itself (Tr. 47~48). A lack of
bolts could bring about a serious failure in the equipment (Tr. 54). If
after the machine is moved forward there wouldn't be proper support without
the bolt (Tr. 63). If the chock fell it could fall on a person working
under them (Tr. 63). Further, inspector Wolford testified that Allied was
cited because the ram was out of the socket and the bolts were out (Tr.
231-232). In Wolford's opinion this was a serious maintenance problem
affecting safety (Tr. 232).
I have studied Allied's contrary evidence but I am not persuaded.
Allied's expert evidence is simply not credible. In addition,. witness
Jansen principally focused on the stop valve in the equipment. Briefly
stated, Jansen's uncontroverted evidence shows that if all the chocks lost
pressure the canopy wouldn't come down because a stop valve prevents the
hydraulic equipment from failing. In fact, if the stop valve becomes
operative it would be necessary to go in and bleed off the equipment to
release the canopy (Jansen 22-26).

2/ A portion of Allied's case dealt with the evidence that the bolts did
not, and could not, bear any of the downward pressure from the roof. I
agree. The evidence clearly supports this view.

505

Allied misjudges the thrust of 30 C.F.R. 57.9-2. The standard
requires the remedy of equipment defects "before the equipment is used."
Allied's stop valve can only become operative after use of the equipment,
and after a failure of the pressure in the hydraulic jacks (Tr. 54).
Allied asserts that it cannot be held liable because the bolts were
being replaced in the chocks. This evidence arises from the testimony of
Bertagnolli and Jansen (Tr. 201, Jansen 10). Further, Allied asserts as a
defense that there was no power in the longwall unit (Tr. 169).
I am not persuaded by Allied's evidence concerning repairs. Assigning
a mechanic to do the work and having it done are two different facets. As
will be noted, infra, Allied produced an electrician who had been assigned
to repair equipment and who was doing it when later events interrupted him.
In addition, I find the testimony of MSHA inspector Wolford to be credible:
no one claimed maintenance work was being done at the time. Further, he
didn't recall seeing any tools lying about (Tr. 236, 237).
The applicable law is stated in Ziegler Coal Company, 3 IMBA 336, 373
( 1974) wherein the Interior Board held as follows:
The presence of defective equipment in a working area
of a mine is prima facie evidence of the violation of the
Act; however, such evidence can be rebutted by the operator,
and where he demonstrated by a preponderance of the evidence
that the equipment was under repair, and had not been used,
and was not to be operated until it met the required safety
standards, no violation of the Act has occurred.
Allied relies on Phelps Dodge Corp., WEST 79-67-M, 1 MSHC 2286 wherein
Judge Merlin cites Plateau Mining Company, 2 IMBA 303 (1973), and Ziegler
Coal Company, supra. None of the cited cases support Allied. Basically
Allied did not demonstrate by a preponderance of the credible evidence that
the equipment was under repair, and had not be used, and was not to be
operated until it met the required safety standards. I note that at a CAV
(no penalty) inspection several weeks before these citations were issued
some 32 or 34 bolts were missing from the chocks (Tr. 38-41).
It further follows that the mere fact there was no power in the shear
at the time of the violation does not relieve Allied from liability for
violating the standard.
In sum, within the meaning of 30 C.F.R. 57.9-2, an "equipment defect"
arises when equipment is not maintained in the manner in which it is
received from the manufacturer. Further, on the basis of the evidence as
stated, MSHA has proven that the equipment defect affected safety.

506

APPLICABILITY OF STANDARD

An additional issue here is whether 30 C.F.R. 57.9-2 applies to
chocks. Allied asserts that safety regulations under § 57.9 relate only to
loading, hauling, dumping as stated in the heading at 30 C.F.R. § 57.9.
Allied also relies on the evidence from MSHA inspector Jacobson's testimony
that the chocks do not relate to loading, hauling and dumping. Further, 1n
support of its position Allied cites Judge Broderick's decision in The
Hanna Mining Co., Docket No. 79-103-M (1 MSHC 2488).
Reliance on a heading to determine the scope and application of a
standard is inconsistent with the usual rule of statutory construction. As
noted by the OSHA Review Commission titles and headings are useful tools
for resolving doubt as to the interpretation to be accorded a standard or
regulation but they cannot be used to limit or alter the meaning of the
text, Continental Oil Company, OSHRC Docket No. 13750 (June 1979); Wray
Electric Contracting, Inc., 78 OSHRC 78/A2, 6 BNA OSHC 1981, 1978 CCH OSHD
, 23,031 (No. 76-119,1978).
In reviewing the text I note that 30 C.F.R. § 56.1 defines the purpose
and scope of the regulations as follows:
§

56.1 · Purpose and scope.

The regulations in this part are promulgated pursuant
to section 6 of the Federal Metal and Nonmetallic Mine
Safety Act (30 u.s.c. 725) and prescribe health and
safety standards for the purpose of the protection of
life, the promotion of health and safety, and the prevention of accidents in sand (including industrial sands),
gravel and crushed stone operations which are subject to
that Act. Each standard which is preceded by the word
"Mandatory" is a mandatory standard. The violation of a
mandatory standard will subject an operator to an order
or notice under section 8 of the Act (30 U.S.C. 727).
Simply stated, the scope of the regulations is to prevent accidents in
those operations which are subject to the Act. To construe the heading in
the manner urged by Allied would conflict with the broad scope of the
text.
For a comparison note how the text in 30 C.F.R. 57.1 limits the
various headings. It provides, ·in part, as follows:
Those regulations in each subpart appearing under the
heading "General - Surface and Underground" apply both
to the underground and surface operations of underground
mines; those appearing under the heading "Surface Only"
apply only to the surface operations of underground

507

mines; those appearing under the heading "Underground
Only" apply only to the underground operations of underground mines.
I am aware of Judge Broderick's contrary decision in The Hanna Mining
Companl, supra, and I disagree, I am also aware that the Commission
reviewed and affirmed that decision on September 22, 1981. However, a
reading of the decision on review indicates the Commission did not consider
that particular aspect of Judge Broderick's decision (2 MSHC 1433).
Allied finally contends that no violation occurred because there was
no evidence that the bolts were missing before use. The basic argument
urged by Allied arises from the evidence that bolts are checked every
shift, that is, every eight hours.
I disagree with Allied's position. I presume Allied would have an
inspector wait until the equipment is used and possibly a miner exposed to
a hazard before an operator could be cited for the violation. The enforcement of a mandatory safety or health regulation is not amenable to
being reduced to such a charade.
Further, in support of its position Allied cites Grove Stone and Sand
Co., 1 MSHC 2473 (July 1980). Allied has misread Judge Steffey's decision.
The actual use of equipment is not a condition precedent to establish a
violation of § 56.9-2.
For the above stgted reasons I conclude that the citation should be
affirmed.
CIVIL PENALTY
The Secretary proposes a penalty of $114 for the violation of 30
C.F.R. 57.9-2. The statutory criteria for assessing a civil penalty is
set forth in Section llO(i) of the Act [30 U.S.C. 820(i)] which provides as
follows:
The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil monetary
penalties, the Commission shall consider the operator's
history of previous violations, the appropriateness of such
penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the
operator's ability to continue in business, the gravity of
the violation, and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after
notification of a violation.

508

In connection with the violation of thi~ regulation the record
indicates that in 1979 Allied had 17 violations of§ 57.9-2. On the other
hand Allied abated the condition@
At the trial the Secretary requested that the Connnission increase the
proposed penalties (Tr. 4, 5). However, this contention was not further
pursued in the Secretary's post trial brief.
Considering the statutory criteria I deem that the proposed civil
penalty of $114 is appropriate.
ELECTRICAL VIOLATIONS
Citations 336654, 336655, and 336656 respectively allege violations of
Title 30, Code of Federal Regulations, § 57.12-30, § 57.12-25 and § 57.
12-32. The cited regulations provide as follows:
57.12-30 Mandatory. When a potentially dangerous
condition is found it shall be corrected before equipment or wiring is energized,
57.12-25 Mandatory. All metal enclosing or encasing
electrical circuits shall be grounded or provided with
equivalent protection.
This requirement does not apply
to battery-operated equipment.
57.12-32 Mandatory.
Inspection and cover plates on
electrical equipment and junction boxes shall be kept
in place at all times except during testing or repairs.
SUMMARY OF THE EVIDENCE
The evidence is conflicting@
credible.

I find the following facts to be

On January 26, 1979 MSHA inspectors were conducting a 103(i) gas
inspection at the longwall mining unit of Allied's trona mine. Inspector
Hansen indicated that the methane concentration exceeded one percent and
Allied personnel agreed (Tr. 19-23, 156). Hansen issued a closure order.
Schultz and Bertagnolli, Allied supervisors, told the workers to stop their
work and leave (Tr. 158-159). At this time electrician Bruton was trying
to repair or replace a flag switch box (Bruton 10, G 25, G 26). While
working on the box Bruton found it necessary to secure additional tools
which were in his jeep in the intake airway. When Bruton was enroute to
his jeep Bertagnolli told him to get out of the mine. Bertagnolli refused
Bruton's request to return to the flag switch box to retrieve his tools
(Tr. 159, Bruton 20). There was also a new box sitting alongside the box

509

being repaired (Jansen 6). The work Bruton was doing required the longwall
miner to be down (Bruton 21). All of the orange colored lights were off.
This would indicate that the flag switch box was not energized (Tr. 195).
Three days later, after ventilation had removed the methane, Allied's
Jansen and the MSHA inspectors returned to the longwall panel. The inspectors noticed the disconnected wires, and the missing bolts at the flag
switch. Jansen said the power was off [because of the closure order] and
there was no power in the longwall miner or the flag switch box (Jansen

6).
DISCUSSION
The electrical violations, involving a single flag switch box, were
cited after the methane closure order was issued and before it was lifted.
When they reentered the mine the inspectors "had not abated the order and
had not given the company permission to start their operation at that
point" (Tr. 83).
On reentering the mine the inspectors found three bare wires protruding six to eight inches from an emergency stop control device (Tr. 68,
69, 89). The device, also called a flag switch box, was located 25 to 60
feet from the face of the longwall (Tr. 71-72).
The Secretary contends that the citation was properly issued because
the wires were exposed at a time when the lines were energized. They
believed the lines were energized because an unidentified electrician
checked them.
On the other hand Allied claims that the inspectors did not call for
an electrician. Further, Allied asserts there was no power in the lines
feeding the flag switch box and the longwall miner. Allied contends that
its electrician Bruton was interrupted by the methane closure order as he
was repairing the flag switch box.
Prior events often cast a shadow. In this case, when the methane
closure order was issued, the MSHA and Allied safety experts were dynamic
in their reaction: all workers were immediately withdrawn and all power to
the longwall unit was cut (Tr. 144-145, 163, 177, 194, Hansen 17).
At this point in time Bruton, who was repairing the flag switch box,
was ordered from the mine by his supervisor. On their return the MSHA
inspectors decided the wires were ·energized because "we had an electrician
come up and check the wires." I do not credit the Secretary's evidence
because it is considerably less than unequivocal. The witness
characterizes this pivitol testimony as "to my knowledge" (Tr. 82), "just a
recollection, this is two years ago" (Tr. 82). Further, "it seems to me we
had an electrician come up ••• " (Tr. 83), and "to the best of my
recollection there was power on
" (Tr. 84).

510

The Allied representative flatly contradicts the Secretary's evidence
on this point. The inspector didn't ask for an electrician and the power
was off (Tr. 49, 50, Jansen 6).
In addition, I further credit Allied's version that there was no power
1n the longwall miner and the flag switch box because they were familiar
with the two electrical systems at this location. The inspectors disclaimed any electrical expertise and Allied's representative knew the power
was off because it had been shut off and locked out at the time of the
closure order. In addition, there were no orange colored lights burning at
this location.
The facts involved in the missing bolts in the chocks are different
from the alleged electrical violations. The principal difference lies 1n
the fact that Bruton was repairing the flag switch box when he was
interrupted by the closure order. I conclude that the circumstances
surrounding the electrical citations invoke the doctrine expressed in
Plateau Mining Company and Ziegler Coal Company, supra.
For the foregoing reasons citations 336654, 336655, and 336656 should
be vacated.
Based on the foregoing findings of fact and conclusions of law I enter
the following
ORDER

1. Citation 336653 and the proposed civil penatly therefor are
AFFIRMED.
2. Citations 336654, 336655, and 336656 and all proposed penalties
therefor are VACATED.

Law Judge

511

Distribution:
Edward H. Fitch, Esq.
Office of the Solicitor
United States Department of Labor
4015 Wilson Boulevard
Arlington, Virginia 22203
John A. Snow, Esq.
Vancott, Bagley, Cornwall and McCarthy
50 S. Main Street, Suite 1600
Salt Lake City, Utah 84144

512

FEDERAL Ml .... E SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

)

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

) CIVIL PENALTY PROCEEDINGS
)

) DOCKET NO. WEST 79-101-M
) A/C No. 48-00152-05004
)

) DOCKET NO. WEST 79-166-M
) A/C No. 48-00152-05005

v.

)

FMC CORPORATION,

) MINE: FMC
Respondent.

)

~~~~~~~~~~~~~~~~--->
DECISION
APPEARANCES:
James R. Cato, Esq., Office of the Solicitor
United States Department of Labor
911 Walnut Street, Room 2106
Kansas City, Missouri 64106
For the Petitioner
Clayton J. Parr, Esq.
1800 Beneficial Life Tower
36 South State Street
Salt Lake City, Utah 84111
For the Respondent
Before: Judge Virgil E. Vail
STATEMENT OF THE CASE
These proceedings were brought pursuant to section llO(i) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a). The
petitions for assessment of civil penalties were filed by the Mine Safety
and Health Administration (MSHA), on September 17, 1979 and timely answers
were filed thereafter by respondent. A hearing was held in Salt Lake City,
Utah," at which both parties were represented by counsel.
WEST 79-166-M
At the beginning of the hearing, the petitioner moved to withdraw
Citation No. 336426 issued under Docket No. WEST 79-166-M, Assessment
Control No. 48-00152-05005, for the reason that the citation was issued
under the wrong standard. As the respondent had no objection to this, a
decision was rendered at the hearing approving petitioner's motion of
dismissal. I hereby AFFIRM that decision.

513

WEST 79-101-M
STIPULATION
The parties agreed to the following stipulations for the remaining
docket: (1) That the respondent is the operator of the FMC Mine which is a
large mine; (2) The history of prior violations is not extraordinary; (3)
That issuance of the order/citation was in accordance with proper
procedures of MSHA; (4) Respondent's ability to continue in business after
imposition of a reasonable civil penalty is not an issue; (5) That
respondent is subject to the jurisdiction of the Federal Mine Safety and
Health Act of 1977 and I have jurisdiction over these proceedings.
STATEMENT OF PROCEEDINGS
Thereafter, the parties presented evidence regarding order/citation
No. 335727. Witnesses for the Secretary were M.C. Jacobson, field
supervisor for MSHA, William W. Potter, mine inspector. Witnesses called
by the respondent were John V. Corra, respondent's assistant production
superintendent at the time the order was issued, Don Warne, area supervisor
for the section of the mine involved herein, Julius Jones, company safety
manager, Warren Sherwood Coleman, co-chairman of the Union safety committee
and steward of the Union at the time the citation was issued, William G.
Fischer, respondent's chief mining engineer and Mahlon Grubb, general
mining superintendent.
The parties have ~ubmitted briefs stating their positions and, having
considered them and the evidence adduced at the hearing, I make the
following decision.
Regulatory Provision
Title 30, Code of Federal Regulations, section 57.3-22, reads:
Miners shall examine and test the back, face, and rib
of their working· places at the beginning of each shift
and frequently thereafter. Supervisors shall examine
the ground conditions during daily visits to insure that
proper testing and ground control practices are being
followed. Loose ground shall be taken down or adequately
supported before any other work is done. Ground conditions
along haulageways and travelways shall be examined periodically and scaled or supported as necessary.
ISSUES }j
The issues are:
1.

Whether the conditions cited and described by the inspector in the

1/ The respondent did not file a timely appeal as to the issuance of a
l07(a) withprawal order in this case. Therefore, this is not a proceeding
to review the order but rather a civil penalty proceeding and the issue is
whether the violation charged in the order's citation occurred.

514

order issued in these proceedings existed in respondent's mine on September
18' 1978?
2.

If so, was the condition a violation Of 30 C.F.R. § 57.3-22?

3.

If a violation occurred, what is the appropriate penalty?
FINDINGS OF FACT J:/

1. On September 16, 1978, a roof fall occurred at the intersection of
number 5 room and number 26 crosscut in respondent's mine. The fall caused
no injuries but put a stammler feeder located l.n this area out of commission. MSHA was notified of the roof fall (Tr. 26, 139). 1./ ·
2. On September 18, 1978, at approximately 9:30 a.m. mine inspectors
Jerry Thompson, William Potter and Gary Ferrin, accompanied by company
employees proceeded to 1 East 2C panel in respondent's mine to conduct an
examination of the roof fall (Tr. 27 and 39).
3. As the inspection party proceeded to the roof fall site, areas of
loose rock were observed in the 1 East 2C panel near the site of the roof
fall which areas were ordered barred down by inspector Thompson (Tr. 43,
44, 85, 86, 89 and Exhibit R-1).
4. At the intersection where the roof fall occurred and men were
working, a loose slab was observed which was ordered barred down by
Thompson (Tr. 89, Exhibit R-1).
5. A miner (electrician) was observed working near an energized
circuit center in room 7 between crosscut 27 and 28 under loose rock
located on the rib above him (Tr. 58, Exhibit P-3).
6. Respondent's -:mployees barred down the loose rock observed on the
way to the roof fall with very little effort (Tr. 46).
7. A flat piece of loose material approximately 5 or 6 feet tall and
a couple of feet wide on the rib near the crosscut where the roof fall
occurred and the stammler was located was barred down at the request of
inspector Thompson. It was near the travelway used by miners to get to the
stannnler (Tr. 48 and 49).
8. A piece of loose rock on the rib near the energy circuit breaker
was removed by touching the rock which fell in pieces approximately one or
two feet in size (Tr. 57 and 58).

2/ The parties stipulated that the Commission has jurisdiction in this
c·ase.

1J

Respondent's Brief, page 4.

515

9. There was no production or mining of ore in progress at the time
of the inspection in section 1 East 2C panel of the mine. However, miners
were in the area working to remove the stammler and a man was tramming back
and forth getting material out (Tr. 51 and 90).
10. The size and condition of the loose rock observed was such that
it could be reasonably expected to cause death or serious physical harm to
miners working in the area.
11. The condition was obvious and should have been noticed by miners
working in the area.
12. The respondent demonstrated ordinary good faith in abating the
violation.
DISCUSSION
The FMC Mine, located near Green River, Wyoming, is one of the largest
underground mining operations in the United States. The mine produces
approximately 4.5 million tons of trona ore per year utilizing the room and
pillar mining method. On September 16, 1978, at approximately 6:30 p.m., a
roof fall occurred at the intersection of number 5 room and number 26
crosscut in section 1 East 2 C panel. The fall caused no injury to miners,
but placed a Stammler feeder (machine used to crush and feed ore onto a
conveyor belt) out of commission. The respondent notified MSHA of the roof
fall shortly thereafter and all miners, except personnel assigned to
cleanup were removed from the panel (Tr. 104 and 106).
On September 18, 1978, mine inspector Thompson and inspector trainees
Potter and Ferrin proceeded to the FMC Mine to conduct an examination of
the roof fall. The inspection party was accompanied by respondent's
employees into the mine. Inspector Thompson, who issued the order involved
in this case, was unavailable as a witness at the time of the hearing.
Inspector Potter testified at the hearing that the inspection party entered
the mine at approximately 9:30 a.m. and proceeded towards the roof fall.
He testified that while enroute Thompson stopped the inspection party on
two occasions so that loose material could be barred down from the back and
rib of the area they were traveling through (Tr. 42 and 44). At the
intersection where the roof fall occurred he described a flat piece of
material five or six feet tall and a couple of feet wide on the rib which
was loose and Thompson requested it be pryed (barred) down (Tr. 49).
Potter testified that he saw a man working near the power center which
is the power source that feeds power to the stannnler and other equipment.
The inspection party proceeded to the power center where loose material was
observed on the rib (side of the drift) above the electrician working
there. Potter testified that he observed that the material only required
to be touched and it fell down in what was described as being a "bunch" of
small rocks anywhere from one to two feet in size and weighing one to 50
pounds (Tr. 58 and 59). Inspector Thompson issued a withdrawal order after
he left the mine based upon what he had observed (Exhibit P-1 and P-3).

516

Respondent introduced evidence that 1 East 2C panel had presented poor
ground conditions due to unusual geologic conditions including difficulties
in maintaining roof control integrity. Testimony was presented that slabbing and spalling of the roof and ribs occurred with greater than usual
frequency and that supervisory personnel and miners were conscious and
aware of this condition (Tr. 110~ 112, 129, 156 and 170). Respondent
argued that the section of the mine cited by inspector Thompson had not
been operating for over 36 hours pending cleanup and securing the area
after the fall. Because the panel had been inactive for over a day and a
half, the slabbing that had occurred was not surprising. 4/ Further,
that the order's references to loose ground at the 27 crosscut between
rooms 5 and 6 and inspector Potter's testimony in reference to 26 crosscut
between rooms 5 and 6 was not supported by other witnesses as to location
or degree of seriousness. Respondent's safety director Julius Jones
testified that the slab observed in the 27 crosscut did not constitute a
danger and did not need to be barred down as the pieces were locked in the
roof with steel mats that were secured to the roof with roof bolts 2../.
Jones further testified that in his opinion inspector Thompson did not test
the slab in the rib at the southeast corner of the 27 crosscut at room
number 5 intersection to determine its stability and that rather than being
barred down, the slab was removed with a cutting machine (Tr. 120 and 133).
Testimony was also presented regarding other areas included in the order
and described by inspector Potter contradicting the danger or seriousness
of these conditions.
A careful review and consideration of all the evidence in this case
persuades me that inspector Thompson and Potter observed loose rock at
various locations in 1 East, 2C panel which constituted a danger to miners
working in the area. Potter identified the areas as best he could under
the circumstances and testified that in each situation described in the
order, he was of the opinion that loose material needed barring down. This
opinion was based upon his ten years of underground mining experience. The
facts further show that a roof fall had occurred in this area which
fortunately did not result in injury but indicates the area was unstable.
In refuting the violations included in the order, respondent presented a
distinguished and experienced array of witnesses who contradicted the
petitioner's witness that the various areas cited therein presented a
danger. However, I find the testimony of inspector Potter more credible
than respondent's witnesses as to the condition in the mine and the dangers
presented at the time of the inspection. Further, respondent's witnesses
in their testimony confirmed that a problem existed in tcyis section of the
mine with slabbing and spalling of the roof and ribs occurring with greater
than usual frequency which contraducts their argument that the area was not
unsafe. The issue here is not whether there was an iunninent danger that
warranted a withdrawal order but whether there was a violation of mandatory
standard section 57.3-22.

4/

Respondent' Brief, pages 7 and 8.

5/

Respondent's Brief, page 9.

517

I reject the argument of respondent that the miners in the roof fall
area were not exposed to danger. The standard requires that miners shall
examine and test the back, face, and ribs of thei.r working places at the
beginning of each shift and frequently thereafter. These men, including
the electrician, were all miners and were required to take down loose
ground both at their working place and along haulageways and travelways.
Obviously, the areas traveled by the inspection party to get to the site of
the roof fall would fall into a category of a travelway. Further,
supervisory employees of the respondent testified that they had visited the
site of the roof fall subsequent to its occurrence and would have had an
opportunity to observe the conditions described by Potter and contained in
the order. This opportunity for observation also includes a responsibility
to insure that proper testing and ground control practices are being
followed.
The gravity of the violations in this case was quite serious since it
could have resulted in a fatal injury. Petitioner argues that rapid
abatement was not achieved. I disagree with this argument and find that
the evidence shows the respondent complied with the inspector's instructions by barring down the loose material as it was pointed out to
them. In view of all of the evidence herein I have determined that
respondent made special efforts to insure rapid abatement of the violation.
In view of this, the appropriate penalty to be assessed, under all
circumstances, is $1,000.00.
CONCLUSIONS OF LAW
The conditions found by inspector Thompson on September 18, 1978, at
the subject mine, and described by him on Order No. 335727, and described
by inspector Potter at the hearing constituted a violation of 30 C.F.R.
§ 57.3-22.
ORDER
Based on the foregoing findings of fact and conclusions of law I enter
the following:
1. It is ORDERED that petition FOR ASSESSMENT OF A PENALTY in Docket
No WEST 79-166-M be DISMISSED WITH PREJUDICE.
2. Order/Citation No. 335727 contained in Docket No. WEST 79-101-M is
affirmed.
3. Respondent, FMC Corporation, is ORDERED TO PAY the sum of $1,000
within 30 days of this order as a civil penalty for violation found in
Docket No. WEST 79-101-M.

(;~ A-:L£-?~L/
Virgil

Admini trative Law Judge

518

Distribution:
James R. Cato, Esq.
Office of the Solicitor
United States Department of Labor
911 Walnut Street, Room 2106
Kansas City, Missouri 64106
Clayton J. Parr, Esq.
1800 Beneficial. Life Tower
36 South State Street
Salt Lake City, Utah 84111
Mr. Stan Loader
Staff Representative
USWA, District 33
P.O. Box 1315
Rock Springs, Wyoming
Mr. Ernest Ronn
Safety Coordinator
USWA, District 33
706 Chippewa Square
Marquette, Michigan

82901

49855

519

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

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

Civil Penalty Proceeding
Petitioner

Docket No. WEVA 80-289
A.C. No.

v.
Blacksville No. 1 Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

David Street, Esq., Office of the Solicitor, U.S. Department
of Labor, for Petitioner
Rowland Burns, Esq., Consolidation Coal Company, for
Respondent.

Before:

Judge Moore

The above civil penalty proceeding was tried before Connnission
Administrative Law Judge John F. Cook, on September 18, 1980, in
Meadow Lands, Pennsylvania, on March 5, 1981, in Washington, Pennsylvania,
and on July 28, 1981, in McHenry, Maryland. On January 19, 1982, I notified
the parties that Judge Cook was no longer with the Federal Mine Safety and
Health Review Commission and that the case had been reassigned to me. The
parties were requested to advise me if the reassignment created any
problem. I have had no response from the parties, and I hold that by their
silence the parties have waived any right to present further evidence or
to object to a decision based on the record made before Judge Cook.
The procedure followed in this case was somewhat out of the ordinary.
An unintentional roof fall had buried the continuous miner with the operator

inside. The operator was trapped for approximately an hour but was not
injured. In support of its case, the government produced two witnesses
who had been to the scene of the accident after the roof fall. From the
conditions they observed, they inferred that the roof had been bad and that
Respondent failed to take proper precautions. After presenting a basically
circumstantial evidence case, the government rested and Judge Cook denied
Respondent's motion for judgment. In effect, he ruled that the government
had made out a prima facie case. I consider Judge Cook's ruling as law of
the case, and as such, it is binding upon me.
The defendant then produced three witnesses who had been at the scene
prior to the roof fall, one being the toreman, one being the bolting machine
operator, and the other being the continuous miner operator who was covered
up i.n' the roof fall. All of these witnesses stated that they had examined

520

the roof and that it was sound prior to the roof fall. In fact, the operator
of the continuous miner said that the roof fall began in front of him at the
face and worked back toward the intersection where he was located and where
he was covered up by the roof fall. The bad top that the government claimed
existed, was located along the inby edge of the intersection where No. 3
heading was started. This was 17 feet from where the roof fall started.
Respondent produced a fourth witness who had overheard some conversations during the course of the investigation subsequent to the roof fall.
During cross-examination of this fourth witness, a Mr. Gross, government
counsel inquired about some handwritten notes that he thought Mr. Gross had
made. Mr. Gross denied making the notes and stated that he was not present
at the investigation where the notes were made. · (There were investigatory
conferences on August 10 and August 15, 1979). The records available clearly
showed that Mr. Gross had not been present when the notes were made, and
Judge Cook properly refused to require Mr. Gross to testify concerning someone else's notes. A Mr. Webber had made the notes and the government
attorney obviously was prepared to cross-examine Mr. Webber. Respondent
chose not to put Mr. Webber on, the stand and in my opinion, that should have
ended the matter. I respectfully disagree with Judge Cook's decision to
reconvene the hearing at a later date for the purpose of hearing Mr. Webber's
testimony. The government had rested and had not announced its intent to
put on any rebuttal witnesses. Mr. Freme, who later testified in rebuttal,
was present on September 18, 1980.
If the record had been closed at that time, as I think it should have
been, the vast weight of the evidence would have been on the side of
Respondent.
The next hearing was on March 5, 1981, in Washington, Pennsylvania, and
at that hearing Respondent's counsel Mr. Burns stated (Tr. 182) when
referring to the end of the earlier hearing, "Thereupon, Mr. Street called
Bob Gross, a Consol employee to the stand as his first rebuttal witness,
and I stress the word 'rebuttal'." In fact, Mr. Gross had not been
Mr. Street's first rebuttal witness, but had been Mr. Burns' own witness (Tr.
154). Judge Cook apparently thought that Mr. Gross had been a rebuttal
witness (Tr. 201) and Mr. Street who certainly should have known whether
Mr. Gross was his own witness or not, did not bother to correct the misinformation of the Judge and Respondent's counsel. Nor had Mr. Street been
surprised by the absence of Mr. Webber at the first hearing as stated by
Respondent's counsel (Tr. 197). His only surprise was that Mr. Gross had not
made the notes that he had in his possession for cross-examination purposes.
Another odd circumstance that developed during the second hearing, was
the fact that Inspector Freme had based his entire testimony during the
first hearing on the basis of notes taken by Inspector O'Neal rather than
on his own notes. It is not clear whether Mr. Street knew that the notes
were not Mr. Freme's notes. He asked Mr. Freme if he testified with the
help "of notes" (Tr. 303). The response was "yes I looked at the notes." He
made further reference to "the notes" not "your notes" (Tr. 303, 304). On
voir dire on the notes, the following took place (Tr. 307).

521

THE WITNESS: I dont' remember exactly what the date was.
August. I remember it being on the day shift. I have my notes
in my pad.
MR. BURNS:

Who's notes are these?

WITNESS: These are the notes that Mr. O'Neal wrote down
while we were questioning the people involved in this event.
It was almost as if Mr. Burns had been led into asking Mr. O'Neal to testify
concerning his own notes. It was after he made a statement that he would not
object to Mr. O'Neal taking the stand that Mr. Burns realized that Mr. O'Neal
' had been sitting at counsel table throughout the entire proceeding whereas
the other witnesses all been sequestered. Again, it's the law of the case,
and I feel bound by the ruling that was made to allow the testimony. I will
take these facts into consideration in the weight given to Mr. O'Neal's
testimony and I will give very little weight to Mr. Freme's testimony in the
first hearing since it was based, not on his recollection, or on a refreshed
recollection, but on notes made by some other person about the incident.
Mr. O'Neal's testimony at the second hearing was not damaging to
Respondent, but Mr. Burns apparently felt obliged to cross-examine any way,
and managed to bring out testimony that it was company policy to treat a
crack such as that found in the No. 3 entry in a manner different than that
followed by the crew involved in the roof fall accident. That will be
discussed further when the events surrounding the roof fall are discussed.
Exhibit M-10 is a four page handwritten document prepared by Mr. Webber
which purports to summarize the statements made during the post-accident
investigation. It is apparently the document that Mr. Street had in his
possession when he was cross-examining Mr. Gross under the impression that
M-10 was prepared by Mr. Gross. Mr. Webber's recollection was not refreshed
by reading the document and he could not currently vouch for the statements
therein. He admitted that he had prepared it from notes that he had taken
during the investigation, but stated that the proceedings were so confusing
that he might well have been inaccurate as to who said what. He was not the
only witnesses to testify as to the confusion during the investigation. In
these circumstances, the exhibit is of little help in resolving the differences in testimony among the witnesses. -:._/
I will be referring hereinafter, to Exhibit No. M-6 which is a sketch
of the roof fall area. There are two copies of M-6 in the record, and they
are not identical. In one the exhibit No. "M-6" is in blue ink and the words
"pressure crack" appear. In the other exhibit the marking "M-6" appears to
have been made in black ink and the words "pressure crack" have been inked
over, so they 'can not be read. While I am leaving both exhibits in the file,
I will be referring to the one that does contain the words "pressure crack."
-:._/ Under rule 803(5) of the Federal Rules of evidence, the document should
have been read into the record rather than offered as an exhibit. In a
nonjury trial, however, I fail to see that this makes any difference.

522

The roof fall involved in this case occurred on August 10, 1979, in
the intersection formed by the No. 3 entry and the last open crosscut, in
the 3 West section of Respondent's Blacksville No. 1 Mine. Exhibit M-6,
M-8, and 0-1 are all depictions of the accident scene. Just prior to the
beginning of the shift in question, the intersection was in the form of a
T because the No. 3 entry had not yet been started on the inby side of the
intersection. The face of No~ 3 entry was actually just a part of the
crosscut rib at this time. On the day before the roof fall, Richard Bissett,
a miner operator who was running a roof bolter at the time, testified that
there was·a crack in the roof right at the edge of the rib that was later
to become the face of entry No. 3. He bolted the area outby the crack and
was of the opinion that the area was safe when he left it. Another roof
bolter, Darrell Tucker, saw a crack in the intersection on August 9, but
does not remember where the crack was. It was somewhere along the rib line
in the intersection though, and he bolted the center of the intersection.
Robert Burke was there working with Darrell Tucker and he described the
intersection as follows: "The place was working, starting to break along the
rib. Coal was flaking off • • • just a little rip, a crack. You could hear
just a little. You could see a little coal flake off." (Tr. 293-294). He
says Tucker bolted the crack (Tr. 294) whereas Tucker said he bolted the
center of the intersection (Tr. 273) (it must be remembered that the roof
fall was in August of 1979 and the second hearing in this case did not occur
until March 5, 1981).
The three men most closely involved with the roof fall were Mr. Newhouse
a loader operator, Mr. Bracken, the foreman, and Mr. Spooner the continuous
miner operator who was covered up in the roof fall. All three testified for
Respondent that the roof was good and solid when they started mining the
No. 3 entry on August 10. The continuous miner drove 17 feet into the new
face of the No. 3 entry, tested the roof with a scissors jack, and all who
could hear it agreed that the roof sounded good. Just before they backed
out, the.roof began to fall at the face of No. 3 entry and worked back to the
intersection and eventually the entire intersection fell trapping Mr. Spooner
in his mining machine within the intersection. See Exhibit Nos. M-6 and 0-1.
While there was no testimony indicating that this roof fall, beginning at the
face 17 feet away from the crack, was caused by the crack, it is nevertheless
the government's position that the procedure used by this particular crew was
incorrect. It states that the correct procedure would have been to mine in
just a few feet to establish a brow, back out and .then bolt the inby side of
the crack. That argument assumes there was a crack all across the face area.
As stated before, there was testimony that it was mine wide policy to mine
in the manner described, but Mr. Phillips, the superintendent testified that
there was no such policy although he recognized that a big slip should be
bolted on both sides (Tr. 412). It apparently depends upon the extent of the
flaw involved. The witnesses in this case described what they saw as a
crack, a cutter, a slip, a rip, and a nick. Some witnesses say the "crack"
went all the way across the intersection while others say that it was only
on the right hand side. Mr. Newhouse, the loader operator that witnessed the
fall, stated that there was a small crack in the head coal on the right hand
side of the face. He admitted that he.may have been confused during the
accident investigation and said left side but that in fact the "slip" was on

523

the right side. He also used the word "crack" and said extra bolts had been
placed in that area. Mr. Bracken,the foreman stated that the mining machine
had earlier nicked the roof and that the bolts were placed in the area of
this nick on the right hand side of the entry. He said the nick was not a
crack (Tr. 137), he said the extra bolts were all across the crosscut. When
recalled at the last hearing, Mr. Braken denied that he had said during the
accident investigation that there was a crack all the way across the intersection. (Tr. 415). He said a little head coal had fallen out and the area
had been bolted. According to him after there has been a nick, air gets in
the coal and in a few days some head coal falls out. He says there was no
crack. Mr. Spooner, the miner who was trapped in the mining machine testified concerning the scissors jack test he made and said the roof sounded good
and did not move. (Tr. 146). He also said that there was no "crack" going
across the intersection, but he referred to a nick on the right hand side.
He said that the fall could not have been foreseen. (Tr. 150).
While I generally favor the so called Susanna rule (Daniel, Chapter 13
Catholic Bible: Rule 615 of Federal Rules) I think sequestration of the
witnesses may have backfired in this case. Some of them might have been
using different words to refer to the same phenomenon. Also, I might be more
impressed with a witnesses' description of the area if he knew that someone
else had already sworn to a different description.
In the circumstances, taking into consideration all of the evidence
including that which I would not have allowed had I been in charge of the
case, I am nevertheless of the opinion that while it is a close question,
the government has not sustained its burden of proof in this case. It has
not shown that the roof fall was caused by mining inby the bolts in.the
intersection nor has it ·Shown that the action of mining 17 feet inby those
bolts was a violation of the standard. The citation is vacated and the
case is dismissed. **/

Charles C. Moore, Jr.
Administrative Law Judge

**/

Respondent's attorney insisted that his motion for a directed verdict
filed at the conclusion of the government's case and renewed after the
entire case had been presented was properly so designated. Our rules do
not provide for such a verdict and the federal rule providing for that
procedure does not seem applicable to an administrative hearing. If
Respondent's attorney means that the evidence was such that if it were a
jury case I would direct a finding for Respondent then he is in.error. I
have already indicated that it is a close question. If he seeks a judgment
in his favor, based on all of the evidence, then he has it. No motion was
necessary at the end of the .trial.

524

Distribution:

By certified mail

David E. Street, Esq., Office of the Solicitor, U.S. Department of
Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia,
PA 19104
Rowland H. Burns, Esq., Consolidation Coal Company, Consol Plaza,
Pittsburgh, PA 15241
Harrison B. Combs, Esq., United Mine Workers of America, 900 15th
Street, N.W., Washington,-DC 20005

525

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

March 29, 1982
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. PENN 82-13
A.C. No. 36-00970-03108

v.
Maple Creek No. 1 Mine
U. S. STEEL MINING CO., INC.,
Respondent
U. S. STEEL MINING CO., INC.,
Contestant

Contest of Citation

v.

Docket No. PENN 82-57-R
Citation No. 1050753
12/21/81

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

Robena No. 1 Mine
DECISION

Appearances:

David Street, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner/Respondent,
MSHA; Louise Q. Symons, Esq., u. S. Steel
Mining Company, Inc., Pittsburgh,
Pennsylvania, for Respondent/Contestant,
·u. S. Steel Mining Company, Inc.

Before:

Judge Merlin
Statement of the Case

Docket No. PENN 82-13 is. a petition for the assessment
of a civil penalty. At the hearing the Solicitor moved to
withdraw this petition.
I granted the motion and dismissed
the petition.
Docket No. PENN 82-57-R is a notice of contest filed by

u. S. Steel to review a citation and an underlying notice to
provide safeguards issued by an inspector of the Mine Safety
and Health Administration under Section 104(a) of the Act.

526

By notice of hearing dated February 3, 1982, this
matter was set for hearing on March 3, 1982. The hearing
was held as scheduled. At the hearing the parties agreed to
24 stipulations which I accepted and made part of the record.
Applicable Statute and Regulations
Section 314(b) of the Act which also appears as 30
C.F.R. 75.1403 provides as follows:
Other safeguards adequate, in the judgment of
an authorized representative of the Secretary,
to minimize hazards with respect to transportation of men and materials shall be
provided.
Notice to Provide Safeguards and Citation
The subject notice to provide safeguards dated
September 10, 1981 provides as follows:
Notice to provide a safeguard for each
station where mine cars are moved by means of
a hoist (or car spotter) . Two separate and
independent methods of stopping the movement
of the mine car. The second method shall
provide control in case the main control
fails because the contactor or the switch
fails in the run position. Area all
sections.
The subject citation dated December 21, 1981, provides
as follows:
Action was not taken to provide a second
means of deenergizing the main power on the
car spotters in case the contactor sticks.
This notice covers all car spotter winches in
the entire mine.
(10 car spotter winches).
Discussion and Analysis
On March 5, 1981, a fatality occurred at the Banning
Mine of Republic Steel Corporation. Coal was being loaded
from a shuttle car by means of the shuttle-car's discharge
boom onto a trip of mine cars. At Banning a locomotive
brings the mine car trip to the designated location and is
supposed to disengage.
The mine car trip then is moved
along by a car spotter.
The spotter at Banning has an
electric motor which drives a hydraulic pump which in turn

-527

powers hydraulic jacks positioned between the rails to catch
the axle of each mine car.on the trip and push the car
forward.
The activation of the spotter and therefore the
movement of the mine car trip is controlled by the shuttlecar operator who has an electrical pull-type switch on each
side of the loading ramp. By controlling the movement of
the mine car trip the shuttle-car operator can achieve even
distribution of coal from the shuttle car into the mine
cars. On March 5, the shuttle-car operator could not stop
the movement of the mine cars and this caused the discharge
boom of the shuttle car to become caught on the top of one
of the moving mine cars, pulling the shuttle car itself
sideways. ·At the time, the shuttle-car operator shouted
that he could not stop the mine car trip, had his head
outside of the canopy of the shuttle car and was caught and
crushed between the canopy and a post. The mine cars
continued to move forward and then stopped.
The evidence of record including the testimony of
MSHA's witnesses indicates that during the investigation on
the day of the Banning fatality the contactors in the
spotter's circuitry were alright and not sticking but that
the electrical system did not work properly, apparently
because a State inspector had pulled out a wire. Five days
after the fatality the car spotter was checked again and at
that time the mine car trip continued to run after the ·
release switch had been turned off. Examination of the car
spotter's electrical circuitry revealed that the contactors
were "hanging up" in the closed position thereby keeping
electric current flowing, allowing the spotter to continue
operating and pulling the mine car trip forward.
The
contactors were not burnt. They subsequently disengaged •on
their own, falling out.
As a result of its investigation MSHA attributed the
fatality to two causes. The first, the amount of clearance
between the shuttle-car discharge boom and the mine cars, is
not involved in this case. The second, stuck contactors in
the electrical circuitry, in MSHA's opinion caused the
spotter to continue to run and move the mine cars after the
release switch had been pulled, resulting in the discharge
boom falling on top of the mine cars and skewing the shuttle

528

car sideways, crushing the shuttle-car operator. The Di-stf1ctManager of District 2 thereafter issued the following memorandum
dated March 27, 1981:
Each station where mine cars are moved by
means of a hoist, spotter, or other device
shall be provided with two separate and
independent methods of stopping the movement
of the mine cars. The second method shall
provide control in case the main control
fails because the contactor or the switch
fails in the run position.
The foregoing memorandum applies to all mines in District
2 which ~oad coal in the same manner as the Banning Mine
including U. S. Steel's Robena No. 1 Mine.
At Robena a
locomotive is not used to position the mine car trip and the
car spotter does not have a hydraulic motor and jacks as at
Banning.
Instead, the electrically powered winch or hoist
pulls the ca.rs forward by means of a steel cable. However,
the configuration of the contactors which participate in the
generation and supply of electric power to the car hoist is
the same.
The issue to be decided is whether the notice to provide
safeguards and the citation based upon it issued to U. S.
Steel at Robena were proper under 30 C.F.R. 75.1403. This
section deals with transportation of men and materials.
Coal was being transferred from the shuttle car to the mine
cars on the way from the face to the surface. This transfer
was an integral part of the transportation of the coal.
I
conclude the circumstances here constitute transportation of
materials within the meaning of 75.1403. The specific
subsections of 75.1403 which follow are merely examples and
not exclusive.
Beyond the definition of what constitutes transportation
is the inquiry whether this notice to provide safeguards is
in accordance with the basic characteristics of safeguards
and the principles which should govern their use. qSafeguards
are designed to cover situations where conditions vary on a
mine-to-mine basis. Mandatory standards cannot anticipate
every.possible physical condition in every mine and therefore
with respect to the transportation of men and materials the
Act allows flexibility.
By means of a safeguard MSHA can
impose certain requirements on a particular mine which are
peculiar to that mine because of its physical configuration
and circumstances. However, in order to be fair to the
operator by giving due notice, the requirements being imposed

529

upon its mine are set forth first in the safeguard notice
which carries no civil penalty. Only in the subsequent
citation bas.ed upon the safeguard can a penalty be imposed.
In the area of transportation of men and materials, safeguards embody and effectuate flexibility and adaptability
to individual circumstances in the administration of the
Act~
However, the potential scope of safeguards is very
broad and accordingly, care must be taken to ensure that
they are employed only in the proper context and do not
become a means whereby the normal rule-making process is
ignored and circumvented.
As already noted, the memorandum upon which the instant
safeguard was based covered all mines in District 2 which
load coal by means of a shuttle-car discharge boom and a
mine car trip. The testimony at the hearing indicated that
in District 2 three mines out of 17 load coal in this manner.
The issuance of this safeguard and citation has nothing to
do with conditions peculiar to the Robena No. 1 Mine as
opposed to all other mines. Rather the safeguard applies to
the method used at Robena to load and transport coal. This
method might be employed in all, in a majority or as here in
a significant minority of mines in the district. This is
not what the safeguard device was designed to be used for.
I conclude therefore that the safeguard and the citation
based upon it were improperly issued and are invalid.
If
MSHA believes certain back-up requirements should be imposed
for this type of coal loading process to make sure that
contactors in the circuitry of car spotters disengage,
electric current stops, and mine car trips do not run after
the release switch is pulled, MSHA should undertake rulemakin~.
This is not to say that MSHA was not justified in
having serious concerns after the fatal accident at the
Banning Mine. However, such concerns cannot be satisfied
through a blanket use of safeguards which disregards the
rulemaking procedure. And this is especially so where, as
here, the requirements imposed by the safeguard and citation
in question apply in only one MSHA district but no other.
Such uneven enforcement is irrational, unfair and does
little if anything to advance the purposes of the Act.
If
MSHA believes remedial action is necessary as well it may
be, MSHA must propose a uniformly applicable course of
action and give operators and other interested parties
appropriate opportunity to comment.

530

The subject safeguard and citation must be invalidated
for other reasons also. After reviewing all the exhibits
and testimony, I conclude the evidence falls far short of
showing that a safeguard at Robena was warranted. First,
MSHA's own evidence at the hearing shows that stuck contactors
could not in fact be identified ~s the cause of the fatality
at Banning. The MSHA fatality investigator testified that
contactors were not stuck on the day of the fatality and
that the cause of the accident could have been stuck contactors, a malfunctioning switch, or something else.
It was
only five days later upon testing that the contactors for
the car spotter at Banning stuck so that the spotter's motor
continued to run and move the mine trip. Solely from the
fact of stuck contactors at Banning five days after the
fatality, the requirements embodied in the subject safeguard
and citation were applied to all other mines in District 2
which load coal like Banning. However, no attempt was made
to determine whether the circumstances in those other mines
in District 2, of which Robena was one, were the same. The
MSHA electrical inspector who issued the subject safeguard
and citation at Robena expressly admitted that the contactors
at Robena had never been tested, and that a car spotter
which did not stop could be due to a defective switch as
well as a defective contactor. He also testified that insofar
as he knew there had been no problem with contactors at
Robena. Therefore, even if the requirements of the safeguard
could have been properly imposed at Banning, MSHA had no
basis to apply those requirements to Robena.
Indeed, the
evidence presented at the hearing showed that relevant
conditions at the two mines were not the same. MSHA's own
electrical expert testified that the contactors used at
Banning and Robena were different makes. Ohio Brass contactors were used at Banning whereas.Joy contactors were
used at Robena.
The expert who was familiar with both kinds
testified that Joy contactors stick less than Ohio Brass
contactors and he was not aware of Joy contactors ever
sticking in a car hoist .. Further, both MSHA and operator
expert testimony demonstrated that amperage capacity is
greater in the contactors at Robena than at Banning reducing
the chances of sticking contactors at Robena. Gravity in
the armature assembly also is a factor in the Joy contactor
decreasing the likelihood of sticking and increasing the
possibility of disengagement of contactors as opposed to
Ohio Brass contactors. Finally, the MSHA electrical expert
stated that he believed the contactors could have caused the
accident at Banning because of the different nature of the
two contactors used at Banning and Robena. The expert's

531

subsequent attempt to retract or diminish the effect of his
initial testimony regarding contactors is not found credible.
I have not overlooked the testimony of the UMW safety
inspector who based upon his employment at Robena in the
mid-1970's stated that he knew of stuck contactors in car
hoists.
However, in light of the other evidence already set
forth I do not find the safety inspector's testimony persuasive with respect to what allegedly happened several
years ago.
The record demonstrates so many significant
differences between the circumstances at Banning and Robena
that there was no basis to apply conclusions from an event
occurring at Banning to Robena. On this basis also the
subject safeguard and citation must be invalidated.
Both parties have filed briefs which I have carefully
reviewed.
As I stated at the hearing, the presentations of
counsel were most helpful in understanding the technical
aspects of this case.
ORDER
It is Ordered that the petition for civil penalty in
PENN 82-13 be and is hereby DISMISSED.
It is hereby Ordered that the notice of contest in
PENN 82-57-R be and is hereby Granted and that the subject
notice to provide safeguards and citation be and are hereby
VACATED.

Paul Merlin
Chief Administrative Law Judge
Distribution:

Certified Mail.

David Street, Esq., Office of the Solicitor, U. s. Department
of Labor, Rm. 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104
Louise Q. Symons, Esq., U. S. Steel Mining Company, Inc.,
600 Grant Street, Room 1580, Pittsburgh, PA 15230

532

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

t1AR 29\982

NORTH RIVER ENERGY COMPANY,
Contestant

Contest of Citation

v.

Docket No. SE 32-21-R

SECRETARY OF LABOR;
MINE SAFETY AND HEALTH
ADHIHISTRATIO:N (MSHA),
Respondent

Citation No. 755885; 11/5/81
North River No. 1 Mine
DECISION

Appearances:

Bronius Taoras, Esq., Assistant Counsel, Republic Steel
Corporation, Meadow Lands, Pennsylvania, for Contestant;
George D. Palmer, Esq., Associate Regional Solicitor,
U.S. Department of Labor, Birmingham, Alabama, for
Respondent.

Before:

Administrative Law Judge Broderick
STATE...11ENT OF THE CASE

North River Energy Company filed a Notice of Contest on
November 25, 1981, alleging that a citation issued on November 5, 1981, .
was improperly issued. The notice also challenged the findings accompanying the citation that the violation significantly and substantially
contributed to the cause and effect of a mine safety hazard and was
caused by an unwarrantable failure to comply with the standard.
Contestant filed a motion for an expedited hearing, and pursuant to
notice, a hearing was held in Birmingham, Alabama, on December 3, 1981.
Newell E. Butler, a Federal coal mine inspector, testified on behalf of
the Secretary. Michael R. Vickers, Assistant Safety Supervisor for
Contestant, Steve Green, Manager of. Safety, and Jerry Omer, Assistant
General Manager of Operations, all with North River Energy Company,
testified on behalf of Contestant.
Both parties filed posthearing briefs on ~1arch 17, 1982. Based on
the- entire record, including the testimony and exhibits introduced at
the hearing, and the contentions of the parties contained in their
briefs, I make the following decision:

533

STATUTOR~

PROVISION

Section 104(d)(l) of the Act provides in part:
(d)(l) If, upon any inspection of a coal or other
mine, an authorized representative of the Secretary finds
that there has been a violation of any mandatory health
or safety standard, and if he also finds that, while the
conditions created by such violation do not cause imminent danger, such violation is of such nature as could
significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health
hazard, and if he finds such violation to be caused by an
unwarrantable failure of such operator to comply with such
mandatory health or safety standards, he shall include
such finding in any citation given to the operator under
this Act.
REGULATORY PROVISION
30 C.F.R. § 75.400 and 75.400-1 provide:
§ 75.400

Accumulation of combustible materials.
[STATUTORY PROVISION]

Coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on electric equipment
therein.
§ 75.400-1

Definitions.

(a) The term "coal dust" means particles of coal
that can pass a No. 20 sieve.
(b) The term "float coal dust" means the coal dust
consisting of particles of coal that can pass a No. 200
sieve.
(c) The term "loose coal" means coal fragments
larger in size than coal dust.
FINDINGS OF FACT
1. Contestant is the owner and operator of an underground coal
mine located in Berry, Alabama.

534

2.

Contestant's operation of said mine affects interstate commerce.

3. On or about October 1, 1981, Jerry Omer of North River asked
Inspector Butler if the company would be permitted to stockpile coal in
the face areas of the mine. Butler told him that this would constitute
an accumulation of coal in active workings, and a citation would be
issued if it were to occur.
4. On or about October 7, 1981, Inspector Butler and supervisory
Inspector Mize discussed with Mr. Om~r North River's request that it be
permitted to stockpile coal within 40 feet of the face. Both Mize and
Butler told Omer that coal could not be stockpiled underground.
5. On or about November 4, 1981, Contestant implemented a written
plan called "Cutting Plan for.Periods of Belt Down Time," under which
it was proposed to store coal in adjacent supported face areas when the
belt was not operating. The plan provided that the coal should not be
placed outby 40 feet from the face; the coal was to be placed on the
wide side away from the line curtain with sufficient area to allow for
proper air flow; a minimum of 3,000 c.f.m. of air was to be maintained.
(Joint Exh. 2). This plan was not submitted to MSHA.
6. On November 5, 1981, Inspector Butler issued a citation charging a violation of 30 C.F.R. § 75.400. The condition or practice cited
was described in the citation as follows:
Combustible material was allowed to accumulate in
the 1 Right working entrie on the A-11 section. Coal was
being stockpiled in the 1 Right entrie. Coal was being
cut in the 1 left entrie with a Joy Miner and loaded in
shuttle car and hauled to the 1 right entrie and dumped.
Coal was 37 foot long and 12 foot wide and 4 foot
6 inches deep. Company officials had been told that coal
could not be stockpile in mines.
7. On November 5, 1981, before Inspector Butler arrived at the
section the belt was not operating. Contestant continued to cut coal
and take it by shuttle car from the left to the right entry where it was
stockpiled, in accordance with Contestant's cutting plan for periods of
belt down time.
8. The pile of coal in the entry was approximately 37 feet by
12 feet and averaged about 4 and one-half feet deep, when the inspector
issued the citation. It representated 10 to 15 shuttle car loads and
totalled more than 80 tons of coal.

535

9. Coal dust was present in the air while the coal was being
dumped, and the dust travelled around the line curtain toward the miner
crew. The amount of float coal dust was not substantial.
10. The subject mine liberates more than one million cubic feet
of methane in a 24-hour period. At the time the citation was issued,
a reading of .3 percent methane was recorded in the area of the mine
involved herein.
11. When the coal was stockpiled as described in Finding ~Jo. 7,
tbe shuttle car was driven into the coal already piled and the shuttle
car cable was pushed up into the pile of coal dumped previously.
12. As the coal was piled in the right entry, it cut down the
amount of qir reaching the face area.
13.

The coal and this area of the mine were moist.

14. There were approximately seven men working in the section:
the shuttle car operator; the continuous miner operator and his helper
working in the left entry; the roof bolting crew in the face area; the
ventilation man; and the section foreman.
ISSUES
1. Whether the intentional stockpiling of coal within 40 feet of
the face pursuant to a plan for doing so when the belt is not operating
is a violation of 30 C.F.R. § 75.400?
2. If it is a violation, do the facts in this case show that it
was of such nature as could significantly and substantially contribute
to the cause and effect of a coal mine safety hazard?
3. If it is a violation, was it caused by the unwarrantable
failure of the operator to comply with the mandatory safety standard?
CONCLUSIONS OF LAW
A.

Violation

The standard involved herein is a statutory standard, contained in
section 304(a) of the Act. It clearly provides that loose coal shall
not be ~ermitted to accumulate in active workings. There is no dispute
that the stockpile involved herein consisted of loose coal and that it
was in active workings. Was it "permitted to accumulate?" The
Commission has stated that "an accumulation exists where the quantity of
combustible materials is such that, in the judgment of the authorized

536

representative of the Secretary, it likely could cause or propagate a
fire or explosion if an ignition source were present." Sec.retary v.
Old Ben Coal Company, 2 FMSHRC 2806, 2309 (1980), emphasis added. See
also Secretary v. Old Ben Coal Company 1 FMSHRC 1954, 1958 (1977).
Contestant seems to argue that only accidental or negligent accumulations are proscribed. I find no warrant in the language of the statute
(regulation) for such an interpretation. Contestant also argues that
in many situations in a mi~e, coal is unavoidably stockpiled without
an operator being cited for an accumulation violation: coal held in
shuttle cars, coal shot from the face in conventional mining, coal
stored in a transfer point. These are not situations before me here,
and do not help in determining the meaning of the regulation. It is
.clear to me and I hold that the coal stockpiled in 1 right entry of
A-11 section in the subject mine was an accumulation of loose coal.
Since it was an intentional accumulation, th.e condition or practice was
a violation of the mandatory standard contained in 30 C.F.R. § 75.400.
B.

Significant and Substantial

The Commission has held that a violation significantly and substantially contributes Fo the cause and effect of a hazard, if (1) there
exists a reasonable likeljhood that the hazard contributed to will
result (2) in an injury or illness of a reasonably serious nature.
Secretary v. Cement Division, 4 FMSHRC 822, 825 (1981). The inspector
pointed to two hazards here: a mine fire or explosion and an interruption of ventilation. This is a gassy mine and though no significant
methane was detected at the time of the inspection, methane is a constant
threat. Evidence was.introduced of prior methane gas ignitions occurring
at the mine. The area of the mine involved herein was damp, but, of
course, damp coal can burn. There was an ignition source: the shuttle
car cable which was subjected· to abrasions as it was pushed int'1,1lie;;e-pile of coal. Is there a "reasonable likelihood'' that this~ a fire or
explosion? I find the question a close one, but on balance, I conclude
that the conditions cited here are reasonably likely to cause or propagate
a fire or explosion. The second part of the test is not so difficult:
if a fire or explosion occurred, resultant injuries would certainly be
of a reasonably serious nature. Therefore, I conclude that the violation
found herein could significantly and substantially contribute to the
cause and effect of a coal mine safety hazard.
UNWARRANTABLE FAILURE
The violation here was intentional in the sense that the condition
was deliberately created. Contestant wished to test MSHA's interpretation of the Act and, so far as this record shows, did so in good faith.
Is this an unwarrantable failure to comply? In an analogous situation,

537

I found a delib~rate violation to challenge an l1SHA interpretation, "the
equivalent of ordinary negligence" in a penalty case. Secretary v.
Cleveland Cliffs Iron Company, 1 FMSHRC 1965, 1972 (1979). It would; I
believe, be anomalous to treat a negligent violation as unwarrantable,
and hold a deliberate violation not unwarrantable. I hold that a
good faith challenge to a standard or an MSHA interpretation of a
standard is, if a violation is found, an unwarrantable failure to comply
with the standard.
ORDER
Based upon the above findings of fact and conclusions of law IT IS
·oRDERED that the Contest of the citation is DENIED and the citation
755335, November 4, 1981 is AFFIRMED.

.

~
Distribution:

j

;t,,1"VLLS

.klfrv~iel.

James A. Broderick
Administrative Law Judge

By certified mail

B. K. Taoras, Esq., Republic Steel Corporation for :::forth River Energy
Company, P.O. Box 500, Meadow Lands, PA 15347
George D. Palmer, Esq., Office of the Solicitor, U.S. Department of
Labor, 1929 South Ninth Avenue, Birmingham, AL 35205
Harrison B. Combs, Esq., UMWA, 900 15th Street, N.W., Washington,
DC 20005

5-38

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

Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Pet id.oner

Docket No: CENT 80-380-M
A.O. No: 23-00458-05013

v.

Frank R. Milliken Mine

OZARK LEAD COMPANY,
Respondent
DECISION
This case was first submitted on Motions for summary judgement to
Judge Laurenson.
Judge Laurenson denied the motions but stayed the
proceedings pending a Commission decision in Homestake Mining Company,
Docket CENT 79-27-M, et. seq. The Commission has now decided Homestake
Mining Company 4 FMSHRC 146 (February 16, 1982), and the decision was
adverse to the government's position in this case . . Secretary vs. Climax
Molybdenum Company, 4 FMSHRC 159 (February 16, 1982) was also decided
adversely to the government's position as was Secretary vs. Local 5024,
United Steel Workers and White Pine Copper Division, Copper Range Company,
4 FMSHRC 155 (February 16, 1982).
The only remaining issue is whether a violation can be established by
the fact that the inspector observed vehicle tire tracks under loose roof.
The parties have stipulated.that there is no evidence as to when the
tire tracks were made or as to when the roof became loose and unconsolidated.
The evidence contained in the stipulation amounts to at most the proposition
that a vehicle may have been driven under loose roof. That is not enough
to sustain the government's burden of proof in a penalty case.
The citations are vacated and the case is DISMISSED.

~e?Jt~ft.

Charles C. Moore, Jr.,
Administrative Law Judge
Distribution: By Certified Mail

Robert S. Bass, Esq., Office of the Solicitor, U.S. Department
of ~abor, Rm. 2106, 911 Walnut Street, Kansas City, MO 64106
Robert G. Brady, Esq., and Gerald T. Carmody, Esq., 500 N. Broadway,
Suite 2100, St. Louis, MO 63102

539

•u.s. GOVERNMENT PRINTING OFFICE I 1982 o- J61-6JB/4J69