OCTOBER 1989
COMMISSION DECISIONS AND ORDER
10-10-89
10-27-89
10-27-89
10-27-89
10-31-89
10-31-89

Pennsylvania Electric Company
Otis Elevator Company
Otis Elevator Company
Utah Power & Light Company
Consolidation Coal Company
Ronald Tolbert v. Chaney Creek Coal (Order)

PENN 88-227
PENN 86-262
PENN 87-25-R
WEST 87-211-R
WEVA 88-176
KENT 86-123-D

Pg.
Pg.
Pg.
Pg.
Pg.
Pg.

1875
1896
1918
1926
1935
1942

SE
89-58-M
Pg.
VA
89-18-D
Pg.
PENN 88-284-R Pg.
KENT 89-2-D
Pg.
WEST 88-246-DM Pg.

1945
1948
1978
1984
1988

WEVA 88-144-R Pg.
PENN 88-304
Pg.
PENN 88-309-R Pg.
WEVA 89-44
Pg.
WEVA 89-124-R Pg.
CENT 89-64-M
Pg.
KENT 89-62-D
Pg.
KENT 89-102-DM Pg.

1992
1999
2007
2013
2018
2024
2027
2030

KENT 89-126
Pg.
WEST 89-170-Rl1 Pg.
WEVA 89-20
Pg.
KENT 88-201-D Pg.
PENN 88-252-R Pg.
PENN 88-258-R Pg.
WEVA 88-239-R Pg.
WEST 88-123
Pg.

2036
2D41
2044
2050
2057
2062
2068
2108

ADMINISTRATIVE LAW JUDGE DECISIONS
10-03-89
10-03-89
10-04-89
10-06-89
10-10-89
10-16-89
10-17-89
10-17-89
10-17-89
10-17-89
10-18-89
10-18-89
10-18-89
10-20-89
10-20-89
10-23-89
10-24-89
10-24-89
10-24-89
10-27-89
10-30-89

Florida Mining & Materials
Connie Mullins v. Clinchfield Coal Co.
Rochester & Pittsburgh Coal Company
Kenneth Howard v. B & M Trucking
Sec. Labor on behalf of Harry Ramsey v.
Industrial Constructors Corporation
Southern Ohio Coal Company
Beth Energy Mines Inc.
Rochester & Pittsburgh Coal Company
Southern Ohio Coal Company
Southern Ohio Coal Company
Gallup Sand & Gravel Company
Winston Madden v. Ronald Summers & Sumco
Sec. Labor on behalf of Fred Bartley v.
Adams Stone Corporation
Green River Coal Company, Inc.
FMC Wyoming Corporation
Consolidation Coal Company
Buford Smith v. R.J.F. Coal Company, Inc.
Consolidation Coal Company
Tunnelton Mining Company
Peabody Coal Company
Mid-Continent Resources, Inc.

ADMINISTRATIVE LAW JUDGE ORDERS
10-03-89
10-27-89
10-30-89

Moberly Stone Company
Eastern Associated Coal Corp.
Haskell County Gravel Co., Inc.

CENT 89-81-M
WEVA 89-198
CENT 89-69-M

Pg. 2U.l
Pg. 2113
Pg. 2115

OCTOBER 1989
Review was granted in the following cases during the month of October:
Clinchfield Coal Company v. Secretary of Labor and UMWA, Docket No.
VA 89-67-R. (Judge Broderick, August 30, 1989)
United Mine Workers of America, District 22 v. Utah Power & Light
Company, Docket No. WEST 87-86-C. (Judge Morris, September 1, 1989)
Secretary of Labor, MSHA v. Ideal Cement Company, Docket No. WEST 88-202-M.
(Judge Morris, September 21, 1989)
Review was denied in the following cases during the month of October:
Secretary of Labor, MSHA v. Eastern Associated Coal Corp., Docket No.
WEVA 89-192. (Judge Weisberger, Interlocutory Review of September 12,
1989 Order)
Secretary of Labor, MSHA v. Southern Ohio Coal Company, Docket No. WEVA 89-87.
(Judge Broderick, September 21, 1989)

COMMISSION DECISIONS

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

20006

October 10, 1989

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMDHSTRATION (~,fSHA)

Docket No. PENN 88-227

v.
PENNSYLVANIA ELECTRIC COMPANY
BEFORE:

Ford, Chairman, Backley, Doyle, and Lastowka, Commissioners
DECISION

RY:

Ford, Chairman; Backley and Lastowka, Commissioners

This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982) ("Hine Act" or
"Act"), and involves two violations of a mandatory safety standard at
Pennsylvania Electric Company's ("Penelec") Homer City Steam Electric
Generating Station ("Generating Station" or "Station"). The question
before us is whether the Secretary of Labor ("Secretary") properly issued
Penelec citations under the Mine Act charging violations of mandatory
mine safety standards. A Commission administrative law judge upheld the
Secretary's action in proceeding against Penelec under the Mine Act.
10 FMSHRC 1780 (December 1980)(ALJ). Penelec petitioned for review
asserting that the cited working conditions are subject to the Occupational
Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., (1982), rather
than the Mine Act. We granted Penelec's petition and heard oral argument.
For the reasons that follow, we vacate the judge's decision and remand the
matter for the taking of additional evidence on the important question
presented and for the entry of a new decision.
The r.enerating Station is located at Homer City~ Indiana County,
Pennsylvania. The Station is operated by Penelec and owned by Penelec
and the New York State Electric & Gas Corporation ("NYSEG"). At the
Station electricity is generated by coal combustion. The Station burns
approximately 4.5 million tons of coal each year. The coal purchased hy
Penelec enters the Station from three sources: from a conveyor running
from an adjacent Helen Mining Company mine; from a conveyor running from
an adjacent Helvetia Mining Company mine; and from a truck-dump facility
receiving coal brought from various other mines in Pennsylvania.

1875

The conveyors from the Helen and Helvetia mines deliver the coal to
scales where it is weighed and sampled, and where title passes to Penelec
and NYSEG. -The coal from these mines is then transported by conveyor to
a bin where it is combined and again sampled. The coal is then placed on
conveyors SA and SB, which transport the coal to a second bin.
Because the Helen-Helvetia coal, when burned, generally yields sulfur
dioxide emissions that do not comply with state and federal environmental
standards, most of the coal travels from the second bin to an on-site
coal cleaning plant. Some of the coal from the truck receiving facility
also travels from the first to the second bin via conveyors SA and SB,
and from the second bin to the coal cleaning plant. At the coal cleaning
plant the coal is broken, crushed, sized, washed, cleaned, dried and blended.
The plant, which is entirely located at the Station, is owned by Penelec
and NYSEG, but is operated under contract by the Iselin Preparation Company
("Iselin"), a subsidiary of Rochester and Pittsburgh Coal Company. The
coal cleaning plant has been inspected regularly by MSHA since becoming
operational in 1977.
On January 7, 1988, John Kopsic, an inspector of the Department of
Labor's Mine Safety and Health Administration (MSHA), issued two citations
to Penelec for violations of 30 C.F.R. § 77.400(c), a mandatory mine safety
standard requiring guards at conveyor-drive, conveyor-head, and conveyortail pulleys. 1/ The citations alleged that the head drives of conveyors
SA and SB were-not adequately guarded to protect persons who might come in
contact with the head rollers. 2/
It is this assertion by the Secretary of the applicability of Mine
Act safety standards to the SA and SB conveyor head drives that is the
subject of the dispute in this case. (The Secretary does not assert
jurisdiction under the Mine Act with respect to working conditions inside
the generating facilities at the Station. The Secretary instead asserts
that working conditions inside the generating facilities are regulated by
her under the Occupational Safety and Health Act of 1970, supra, ("OSHAct")).
The parties agree that in August 1977, Penelec reached an oral understanding with the Mining Enforcement and Safety Administration ("MESA")
regarding MESA's and OSHA's jurisdiction over the coal cleaning and coal
1/

30 C.F.R. § 77.400(c) states:
Guards at conveyor-drive, conveyor-head, and conveyortail pulleys shall extend a distance sufficient to
prevent a person from reaching behind the guard and
becoming caught between the belt and the pulley.

2/
The "head" end of a belt conveyor is the ultimate delivery or discharge
end. The "head drive" is the means by which mechanical power is transmitted to the head pulley of a belt conveyor, See U.S. Department of the
Interior, A Dictionary of Mining, Mineral, and Related Terms, 5S4, SS5
(1968) .

1876

handling facilities at the Generating Station. Stip. 2. (MESA was an
agency in the Department of Interior charged with enforcing the Federal
Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976)
(amended 1977). MESA's enforcement function was transferred~ the
Department of Labor and MSHA by the 1977 Mine Act). Penelec's understanding of the agreement is represented by an inter-office memorandum,
dated September 6, 1977, memorializing a meeting of representatives of
MESA, Iselin and Penelec called "to establish definite lines of
jurisdiction at the coal cleaning plant." Tr. 4-6; Jt. Exh. 1. The
memorandum states in pertinent part:
At ..• ·[the second bin] MESA will have jurisdiction on
everything above the top of the bin except for the
portions of #SA and #SB conveyors within the structure
including the drive units and head pulleys. [2_/]
Notwithstanding this agreement, MSHA, without Penelec's knowledge,
inspected the head drives of the SA and SB conveyors on January 7,
1988. Stip. 4. Penelec's counsel stated that OSHA has inspected the
area prior to that time and that no MSHA inspections had been made of
the cited area. Tr. 9. Counsel for the Secretary stated that he did
not know whether OSHA had inspected the area and that the Pittsburgh
area OSHA office had no record of OSHA inspections. Tr. 10. Penelec's
counsel further stated that Penelec was unaware that there had been any
change from the 1977 agreement concerning whether MSHA or OSHA would
inspect the head drives. Tr. 17.
In his decision, the judge held that the question of whether Penelec
was properly cited for violations of the Mine Act was "to be determined by
whether the head drives for the SA and SB conveyors ••. are part of a
facility that is a 'coal or other mine."' 10 FMSHRC at 1781. The judge
noted that the statutory definition of "coal mine" includes "all structures,
facilities, machinery, tools, equipment .•. and other property, .•. used
in, or to be used in ••• the work of preparing the coal," and that the
statutory definition of "work of preparing the coal" includes the "breaking,
crushing, sizing, cleaning, washing, drying, mixing, storing and loading
of ... coal." 30 U.S.C. §§ 802(h)(2), 802(i); 10 FMSHRC at 1781. The
judge stated that the definitions are to be given broad interpretations
and doubts are to be resolved in favor of coverage. 10 FMSHRC at 1781.
Summarizing the general process of the transport of coal at the
Generating Station (10 FMSHRC at 1781-82), the judge found:
[A]t least some raw coal is transported on the SA and
SB conveyor belts which run over the SA and SB head
drives on its way to the Iselin Preparation Plant.
3/
Counsel for the Secretary stated to the judge that the person who had
represented MESA at the meeting "has no recollection of what transpired
at the meeting, other than that the meeting took place and that .•• they
thought they had some kind of informal agreement regarding .•• MSHA-OSHA
jurisdiction." Tr. 7.

1877

At the preparation plant the coal is broken,
crushed, sized, washed, cleaned, dried and blended
in preparation for consumption in the Penelec
generating station. These activities are all within
the scope of "work of preparing coal" within the
meaning of section 3(i) of the Act. It is also
clear that the head drives over which the raw coal
passes on its way to such preparation are "structures",
"equipment", and "machinery" that is "used in or to
be used in" the "work of preparing the coal."
10 FMSHRC at 1782. The judge further found that this broad range of coal
preparation activities was performed for "the particular purpose of consumption in the Penelec generating station." 10 FMSHRC at 1782. Therefore,
the judge concluded that the head drives of the cited conveyor belts were
subject to Mine Act jurisdiction. 10 FMSHRC at 1782-83. 4/
On review, the question before us is whether the cited working condition is governed by regulations enforced by the Secretary under the Mine
Act, as argued by the Secretary, or by regulations enforced by the Secretary under the OSHAct, as argued by Penelec. As explained below, we conclude
that the present record is unclear on this controlling question, preventing
us from properly exercising our review function and making an informed
decision on an important jurisdictional issue. Therefore, we exercise our
statutory authority to remand the matter to the judge for the taking of
additional evidence and argument concerning which safety and health agency
within the Department of Labor exercises regulatory authority over the
working condition in question. 30 U.S.C. § 823(d)(2)(C).

At the outset of our discussion, a brief overview of the statutory
interplay between the Mine Act and the OSHAct is necessary to a proper
analysis of the issue and an understanding of our disposition. (We note
that the judge's analysis in his decision omits any discussion of this
interplay). The OSHAct is the most broadly applicable statute regulating
the safety and health aspects of the working conditions of American workers.
Section 4(b)(l) of the OSHAct, however, provides:
Nothing in this Act shall apply to working conditions
of employees with respect to which other Federal
agencies ••• exercise statutory authority to prescribe or enforce standards or regulations affecting
occupational safety or health.
29 U.S.C. § 653(b)(l). Thus, OSHA standards apply to a workplace unless
another Federal agency exercises statutory authority to regulate the
safety and health of the workplace. See, e.g., Southern Pacific Transportation Co. v. Usery, 539 F.2d 386,-"389 (5th Cir. 1976), cert. denied,
4/
Penelec agreed that if the Secretary had jurisdiction over the head
drives under the Act, that it had violated the cited mandatory standard
by failing to adequately guard the head drives. The judge assessed civil
penalties of $54 for each of the cited violations. 10 FMSHRC at 1783.

1878

434 U.S. 874, 98 S.Ct. 221, S4 L.Ed. 2d 1S4 (1977); Southern Ry. Co. v.
OSHRC, S39 F.2d 33S, 336 (4th Cir. 1976), cert. denied, 429 U.S. 999,
97 s.ct. s2s, so L.Ed. 2d 609 (1976).
-- --Therefore, OSHA standards pertaining to the guarding of the cited
head drives would be applicable unless another Federal agency, with a
proper grant of jurisdiction over such working condition, exercised its
authority in a manner displacing OSHA coverage. The Secretary claims that
MSHA has indeed properly exercised its statutory authority to regulate the
cited working conditions and that MSHA's citation of Penelec for the
violation of the mine safety standard at issue must he upheld.
Our analysis of the Secretary's claim must next consider the language
of the Mine Act. Section 4 of the Mine Act provides that each "coal or
other mine" that affects commerce is subject to the Act. 30 U.S.C. § 803.
Section 3(h) of the Mine Act broadly defines the term "coal or other mine"
as including the area of land from which minerals are extracted, roads
appurtenant to such area, lands, facilities, equipment and machines used
in the work of extraction, milling, or preparing coal, and custom coal
preparation facilities. S/ The Secretary argues that the SA & SH head
drives are machinery or equipment used in the preparation of coal.
Therefore, according to the Secretary, the violations at issue occurred
in a "coal mine" and Penelec was properly cited for the violation pursuant
to the Mine Act.

l_/

Section 3(h), 30 u.s.c. § 802(h), states:
(1) "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 ••••
(2) For purposes of titles II, III, and IV, "coal
mine" means an area of land and all structures, facilities,
machinery, tools, equipment, shafts, slopes, tunnels,
excavations, and other property, real or personal, placed
upon, under, or above the surface of such land by any
person, used in, or to be used in, or resulting from, the
work of extracting in such area bituminous coal, lignite,
or anthracite from its natural deposits in the earth by
any means or method, and the work of preparing the coal
so extracted, and includes custom coal preparation
facilities.

1879

The term "work of preparing the coal" is defined in section 3(i) of
the Mine Act:
[l] "Work of preparing the coal" means the breaking,
crushing, sizing, cleaning, washing, drying, mixing,
storing and loading of bituminous coal lignite, or
anthracite, and [2] such other work of preparing such
coal as is usually done by the operator of the
coal mine.

30 U.S.C. § 802(i) (bracketed numbers added).
The stipulations establish, and the judge found, that raw, run-ofmine coal is transported on the 5A and 5B conveyor belts, over the cited
head drives, to the second bin, and then to the coal cleaning plant where
the coal is broken, crushed, sized, cleaned, washed, dried and blended
in preparation for consumption in the Generating Station. Thus, measured
against the Mine Act's definition of "work of preparing the coal," it is
clear that the work activities associated with Penelec's processing of
coal prior to its consumption squarely fall within the literal definition
of coal preparation set forth in clause [l] of section 3(i). Thus, the
head drives of the 5A and 5B conveyors, which drive the belts that
transport the coal towards its destination in the the coal cleaning
plant, are equipment or machinery "used in" the preparation of coal
within the meaning of the Mine Act.
Penelec argues, however, that under clause [2] of the definition of
"work of preparing the coal" considerations additional to mere performance
of the listed work activities come into play in determining whether coal
preparation is taking place. Indeed, in Oliver W. Elam, Jr. Co., 4 FMSHRC
5 (January 1982), the Commission recognized that the determination of
whether a company engages in coal preparation under the Mine Act requires
an inquiry "not only into whether the operation performs one or more
of the listed work activities [in section 3(i)J, but also into the nature
of the operation performing such activities." 4 FMSHRC 6 at 7 (emphasis
in original). Accord, Donovan v. Inland Terminals, 3 BNA MSHC 1893 (D.
Ind. March 28, 1985). The Commission further recognized that "simply
because [a company] in some manner handles coal does not mean that it
automatically is a 'mine' subject to the Act." 4 FMSHRC at 7.
The Elam operation was a commercial dock facility at which coal was
stored, broken, and crushed simply to facilitate the loading of the coal
onto barges for shipment. Id. At the Elam facility, coal was not prepared
to meet customer specifications or to render it fit for any particular use.
4 FMSHRC at 8. Unlike the processes performed on the coal at the Elam
loading dock, the processes at Penelec's Generating Station are performed
to prepare the coal to meet particular specifications and emissions
requirements with which Penelec must comply in the burning of its coal.
Thus, the activities performed on the coal at the Station are those
usually performed "by custom preparation facilities, undertaken to make
coal suitable for a particular use or to meet market specifications."
Id. Therefore, the work performed at the Station not only falls within
clause [l] of section 3(i)'s listing of the types of work activities

1880

comprising coal preparation, but also meets the criterion in clause [2]
that i t be the type of work "usually done by the operator of the coal
mine."
Penelec further argues that it is exempt from Mine Act jurisdiction
because it does not prepare the coal for resale but rather is the ultimate
consumer of the coal. In Elam, the Commission noted that under the 1952
Coal Act businesses that engaged in processing coal to produce another
product were specifically exempted from that statute's coverage. 30 U.S.C.
§ 47l(a)(7)(1952)(repealed 1969); 4 FMSHRC at 7. 6/ This exemption for
consumers, however, was not carried over into the-1969 Coal Act, nor was
it reinstated in the 1977 Mine Act. Id. No explanation of the reasons
behind the change in definitional language appears in the legislative
histories. See 4 FMSHRC at 7 n.4. The question before us must therefore
be answered by the governing terms of the 1977 Mine Act, not by a
determination of whether utilities such as Penelec were exempted from
the reach of the 1952 Act by virtue of that statute's "consumer exception."
Under the Mine Act, coal consumers are not provided any per se exclusion
from jurisdiction. Instead, Mine Act coverage turns on the two part
definitional analysis set forth above, under which analysis the cited
working condi.tion meets the literal criteria permitting Mine Act
coverage. I._/ See Donovan v. Inland Terminals, supra; Elam, supra.
6/

The 1952 Coal Act in part provided:
The term 'work of processing the coal' as used in
this paragraph means the sizing, cleaning, drying,
mixing and crushing of ••• coal ••• , and such other
work of processing such coal as is usually done by
the operator, and does not mean crushing, coking,
or distillation of such coal or such other work of
processing such coal as is usually done by a consumer or others in connection with the utilization
of such coal.

30 U.S.C. § 47l(a)(7)(repealed 1969)(emphasis added).
7/
In pressing its argument for Commission recognition of a consumer
exemption to Mine Act jurisdiction, Penelec further refers us to cases
decided under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. (1983).
The Black Lung Benefits Act provides benefits for disabled coal miners and
defines a miner as "any individual who worked or has worked in or around a
coal mine or coal preparation facility in the extraction or preparation of
coal." 30 U.S.C. § 902(d). Compare, 30 U.S.C. § 802(g)(Mine Act definition of "miner" as "any individual working in a coal or other mine"). The
Mine Act definitions of "coal mine" and "work of preparing the coal," apply
to the Black Lung Benefits Act. 30 u.s.c. § 802(h)(2). In interpreting
the phrase "work of preparing the coal" for Black Lung Benefits Act
purposes, courts have generally held that once coal has been extracted
and prepared for use and has left the preparation facility, the "work
(Footnote continued)

1881

We _also note that MSHA's regulation of the working conditions inside
Penelec's on-site coal cleaning plant is not challenged and it is not
disputed that MSHA properly regulates the mines adjacent to the Generating
Station that deliver coal directly to the Station by means of conveyor
systems. See Donovan v. Carolina Stalite Co., 734 F.2d 1547 (D~C. Cir.
1984).
Thus, we conclude that MSHA possesses statutory authorization to
regulate working conditions associated with Penelec's preparation of coal,
and therefore that the Secretary of Labor properly could decide to make
mine safety standards applicable to the disputed area. Whether she has
done so, however, is another matter and one which we are unable to deter. mirie with any degree of assurance from the murky record presently before us.
As previously noted, the parties stipulated that Penelec and MESA met
on August 25, 1977 and "reached a verbal understanding ••• regarding MESA's
and ••• OSHA's ••• jurisdiction over the coal cleaning and coal handling
facilities at the Homer City Station." Stip. 2. Penelec claims that MESA
agreed that OSHA would have jurisdiction over the cited conveyors. See Pen.
Br. in Support of Motion to Dismiss 18; Pen. Br. 5. The government,-s~
representative at this meeting did not testify but it was represented that
he thought "some kind of informal agreement" regarding MSHA/OSHA jurisdiction
had been reached. See n.3, supra. Thus, relevant details of the genesis
of the jurisdictional controversy before us are lacking.
footnote ]_/ end
of preparing coal" ceases. See e.g., Epilon v. Director, O.W.C.P., 794
F.2d 935, 937 (4th Cir. 1986). If further procedures associated with
the work of preparing coal are performed by a consumer, they do not bring
the consumer under the jurisdiction of the Act. See e.g., Foreman v.
Director, O.W.C.P. 794 F.2d 569, 571 (11th Cir. 1986)~.~
These cases, however; lack precedential value in resolving the Mine
Act jurisdictional dispute before us. Black lung benefits are financed
by a trust, funded by a tax on "coal sold by the producers, " 26 U.S.C.
§ 4121(a), and the courts have reasoned t4at miners entitled to such
benefits in some fashion must be connected with the producers of coal.
See Wisor v. Director, O.W.C.P., 748 F.2d 176, 179 (3rd Cir. 1984).
Individuals "who wor[k] in or around a ••• coal preparation facility .••
or [in] preparation of coal" are most closely connected with the producers of coal when coal preparation is considered as taking place prior
to its entry into the stream of commerce. As one court has stated, the
functions that the miners perform should be "integral to the •••
preparation of coal, not ancillary to the delivery and commercial use
of processed coal." Stroh v. Director, Office Of Workers' Compensation
Programs, 810 F.2d 61, 64 (3rd Cir. 1987).
The Mine Act has the entirely different purpose of assuring safe and
healthful working conditions for the nation's miners. Under the Mine Act
"coal mine" is defined in broad terms to better effectuate the salutary
effects of this particular goal. There is no statutory financial scheme
in the Mine Act requiring coal preparation to be closely tied with the
coal producer, and hence no basis from which to extrapolate the
exemption from coverage of the Mine Act argued for by Penelec.

1882

The question of which safety and health agency actually asserted
jurisdiction subsequent to the agreement and prior to issuance of the
subject citations is similarly unclear. Before the judge, counsel for
Penelec claimed that OSHA inspected the area in question. Tr. 9. The
Secretary's counsel responded that he did not know whether or not OSHA
inspected the area and that the Pittsburgh area OSHA office had no record
of OSHA inspections. Tr. 10. The record contains no evidence of enforcement activity relating to the disputed area by either OSHA, MESA, or MSHA
prior to issuance of the subject citations on January 7, 1988, when MSHA
inspected the area unbeknownst to Penelec.
Likewise, the reasons for MSHA's decision to begin to assert inspection
authority in the disputed area also are not explained. Rather, the first
clear assertion of MSHA jurisdiction in the record is contained in an
April 12, 1988 letter from former MSHA District Manager Donald W. Huntley
to Penelec in which Huntley stated that MSHA was expanding its inspection
authority at the (',enerating Station to include "all areas which are
directly involved in the coal preparing process." Ex. 3. The letter
reflected Huntley's concern over "gaps" in MSHA's coverage at the Station
and that henceforth MSHA would include the "SA and SB conveyors ••• [and]
the drive units and head pulleys" in its inspections. Id. Although the
letter indicates that the OSHA Area Director was sent a-Copy, the record
contains no response on the director's part acceding to or disputing
MSHA's claim of authority. Importantly, the record contains no indication that the procedures specified in the formally published MSHA-OSHA
Interagency Agreement for the resolution of jurisdictional conflicts
between the two agencies were consulted or followed. 44 Fed. Reg. 22827
(1979).
The MSHA-OSHA Interagency Agreement provides a procedure for determining general jurisdictional questions between the two agencies. The
Agreement states in pertinent part:
When any question of jurisdiction between MSHA and
OSHA arises, the appropriate MSHA District Manager
and OSHA Regional Administrator or OSHA State
Designee in those states With approved plans shall
attempt to resolve it at the local level in
accordance with this Memorandum and existing law
and policy. Jurisdictional questions that can
not be decided at the local level shall be
promptly transmitted to the respective National
Offices which will attempt to resolve the matter.
If unresolved, the matter shall be referred to
the Secretary of Labor for decision.
42 Fed. Reg. at 22828. The Agreement itself does not expressly address the
question of MSHA-OSHA jurisdiction at coal handling power plants, nor has
any supplement to the agreement been published addressing this not uncommon
situation. Compare, Inter agency Agreement; Revision Concerning Su'rface
Retorting of Oil Shale, 48 Fed. Reg. 7S21 (1983).

1883

At oral argument before us, counsel for the Secretary asserted that
the MSHA district manager's letter reflects MSHA's policy of inspecting
those areas· of a power plant that involve the handling and processing of
run-of-mine coal and of leaving to OSHA the inspection of those areas that
involve the handling of previously processed coal. O.A. Tr. 28, 29-30, 33.
We note, however, that in a prior case involving a coal handling power plant,
the Commission was advised, by different secretarial counsel, that:
MSHA traditionally has not inspected power plants.
Although the Secretary is not able to cite to a
particular memorandum incorporating this policy, MSHA
and its predecessors have consistently found the production of power to be outside the jurisdiction of the
agency. MSHA has taken into account that a portion of
the process utilized to produce electric power from coal
requires handling and processing coal but has determined
that those activities are subsumed in the specialized
process utilized to produce electric power, and that the
overall power plant process is more feasibly regulated by
OSHA.
Utility Fuels, Inc., Docket No. CENT 85-59 (Sec. Motion to Dismiss
(November 29, 1985)).
The importance of, and confusion concerning, the jurisdictional
question presented in this case is further heightened by the fact that
subsequent to the issuance of the citations in question, the Secretary
through OSHA, proposed new, comprehensive safety standards applicable
to the operation and maintenance of electrical power generation
facilities. 54 Fed. Reg. 4974-5024 (1989). On their face and as
explained in the accompanying explanatory materials, these regulations
would appear to directly apply to operations such as Penelec's including
the coal handling aspects of such operations. Proposed standard 29 C.F.R.
§ 1910.269(a)(l)(i) reads· in part,
"This section covers work practices,
installations, and equipment associated with the operation and maintenance
of electric power generation
These provisions apply to ••• (A)
Power generation, transmission, and distribution installations ••• and
(B) ••• (1) ••• Fuel and ash handling and processing installations, such
as coal conveyors and crushers." 54 Fed. Reg. at 5009. Of specific
interest, the proposed standards for power generating plants contain
detailed regulations pertaining to the protection of employees working
in the area of coal carrying conveyor belts. See proposed 29 C.F.R.
§ 1910.269(v)(ll), 54 Fed. Reg. at 5021-22.
On review, the Secretary argues that the proposed rules would apply
only to those electric generating facilities using already processed coal,
but that facilities and equipment at generating stations handling and
transporting run-of-the-mine coal would be subject to Mine Act jurisdiction.
Sec. Br. 21-22. We find no such distinction in the proposed standards.
Far from recognizing a division of jurisdiction between OSHA and MSHA,
the proposed regulations appear to be all-encompassing. As noted, section
1910.269 states that i t is applicable to "fuel and ash handling and
processing installations, such as coal conveyors and crushers." 29 C.F~R.

1884

§ 1910.269(a)(l)(i)(B)(l)(emphasis added).
In summarizing the proposed
rules, the Assistant Secretary of Labor for Occupational Safety and Health
explained that fuel handling operations within an electric power installation station would be covered by the proposed regulations. S4 Fed. Reg.
at 4980. The OSHA Assistant Secretary's view of the effect of the proposed regulations compliments and coincides with the view of OSHA/MSHA
jurisdiction propounded to the Commission in Utility Fuels, supra. Thus,
the proposed rules suggest that the Secretary of Labor may still view
Penelec's operation as subject to OSHA jurisdiction or, at least, that
coverage by OSHA, rather than MSHA, may be more appropriate and effective.

These conflicting indications of Secretarial intent raise serious
questions as to which agency in the Department of Labor exercises safety
and health authority over power generating stations such as Penelec's.
The answer is of great consequence to Penelec and its employees. It is
also of importance to similarly situated operators of coal burning electric
utilities who, along with Penelec, must know which safety and health
standards must be complied with and which statute prescribes the rights
and duties to which they and their employees must conform their conduct.
The fact that after 20 years of enforcement under the 1969 Coal Act
and the 1977 Mine Act, this case of first impression arises could indicate
that perhaps MSHA has embarked here upon a course at odds with consistent
prior policy, and perhaps present and future policy, of regulating coal
handling power plants under OSHA, rather than MSHA. Indeeq, at oral
argument counsel for the Secretary stated that the record reflected no
specific reason why MSHA chose in 1988 to assert jurisdiction over the
SA and SB conveyor head drives at the Penelec Generating Station. O.A.
Tr. 26-27.
Section 113 of the Mine Act provides that "[i]f the Commission
determines that further evidence is necessary on an issue of fact it
shall remand the case for further proceedings before the administrative
law judge." 30 U.S.C. § 823(d)(2)(C). Because of the pervasive
ambiguity in the record on the question of whether the Secretary of Labor,
through MSHA, has properly exercised her authority to regulate the cited
working conditions at Penelec's Generating Station, and the importance
of this question, we find it appropriate to order further proceedings.
We encourage the Secretary to give serious consideration to the questions
raised by this case and to follow the procedures in the OSHA-MSHA Interagency Agreement to resolve the conflicting positions taken on her behalf.
To do otherwise would be to ignore the potential whipsaw effects to which
an employer can be subjected when important jurisdictional issues appear
to be resolved with no assurance that potentially competing agencies have
reached a mutual and definitive determination as to their respective
roles. §_/
8/
In this regard, we note that in the Mine Act Coagress directed the
Secretary that:
(Footnote continued)

1885

Accordingly, the judge's decision is vacated and the matter is
remanded to the judge for further proceedings consistent with this
opinion including the taking of further evidence on the jurisdictional
question presented and the entry of a new decision. 2_/

~
.

/

:-:.-c .---< -- c _(' -r

,4
(

Richard V. Backley, Commissioner

footnote 8/ end
[iJn making a determination of what constitutes
mineral milling ••• , 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.

30 u.s.c. § 803(h)(i).
9/
Commissioner Nelson did not participate in the consideration or
disposition of this matter.

1886

/

,-</t?//dtuvt-,/

Commissioner Doyle, dissenting:
The respondent, Pennsylvania Electric Company ("Penelec"), is the
operator of an electric power generating station and has for some years
been doing on-site processing of some of the coal used at of its generating station, in order to insure compliance with EPA emission standards,
issued in 1977. The coal conveyor cited in this case transports coal
received from the Helen and Helvetia Mines between bins on the generating
station grounds, most of the coal eventually going to the cleaning plant.
Trucked coal is transported on different conveyors with only the run-ofmine portion being diverted to the cleaning plant.
In January 1988, MSHA for the first time inspected the head drives
of the SA and SB conveyors and sometime thereafter an MSHA district
manager advised Penelec that MSHA was also asserting jurisdiction over
additional areas of the power plant.
The case before us deals only with alleged violations with respect
to the head drives and was submitted on stipulated facts. The administrative law judge found in favor of MSHA and Penelec petitioned for
review, asserting that it was not subject to the Mine Act based on:
1.

The plain language of the statute and its
legislative history;

2.

Its work not being that usually performed
by an operator of a coal mine;

3.

Its being the ultimate consumer of the coal.

The majority of the Commission finds that the processes performed
at Penelec's plant "are performed to prepare the coal to meet particular
specifications and emission requirements" and are thus "activities •..
usually performed 'by custom preparation facilities, undertaken to make
coal suitable for a particular use or to meet market specifications."'
Slip op. at 6. The majority also finds Penelec's work to he "the type
of work 'usually done by the operator of [a] 'coal mine."' Slip op. at
7. They discount any exemption for the ultimate consumer of coal and,
based on the language of the statute, conclude that the Secretary "properly could decide to make mine safety standards applicable to the
disputed area." They are, however, unable to determine from the record
whether the Secretary has made such a determination. Slip op. at 8.
The majority cites numerous factors both within and outside of the
record that show conflicting indications as to which agency in the
Department of Labor exercises safety and health authority over operations such as Penelec's. Because of this ambiguity, they remand the
matter to the administrative law judge for the taking of further
evidence on the jurisdictional question and the entry of a new
decision.

1887

I disagree that the head drives of the SA and SB conveyors fall within the definition of a "coal mine" as set forth in the Mine Act or that
they are subject to that jurisdiction simply because, in some instances,
they convey run-of-mine coal to the preparation plant, as opposed to conveying processed coal.
I further believe that the case should be decided
on the record before us rather than being remanded for the taking of additional evidence.
Section 3(h), 30 U.S.C. §802(h), states:
(1)
"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;
(2) For purposes of titles II, III, and IV, "coal mine"
means an area of land and all structures, facilities,
machinery, tools, equipment, shafts, slopes, tunnels, excavations, and other property, real or personal, placed upon,
under, or above the surface of such land by any person, used
in, or to be used in, or resulting from, the work of extracting in such area bituminous coal, lignite, or anthracite from
its natural deposits in the earth by any means or method, and
the work of preparing the coal so extracted, and includes
custom coal preparation facilities.

The "work of preparing coal" is defined in section 3(i), 30 U.S.C.
§802(i), as follows:

1888

[i] "work of preparing the coal" means the breaking, crushing,
sizing, cleaning, washing, drying, mixing, storing and loading
of bituminous coal, lignite, or anthracite, and such other
work of preparing such coal as is usually done by the operator
of the coal mine.
A portion of the legislative history pertaining to these sections
has been widely quoted in determining Mine Act coverage. That language
states that the definition of a mine is to be given the broadest possible interpretation and that doubts should be resolved in favor of
inclusion. However, examination of that entire passage of the
legislative history indicates a context in which Congress was contemplating regulation of mines in a more traditional sense. The complete passage reads as follows:
Thus, for example, the definition of 'mine' is clarified
to include the areas, both underground and on the surface,
from which minerals are extracted (except minerals extracted
in liquid form underground), and also, all private roads and
areas appurtenant thereto. Also included in the definition
of 'mine' are lands, excavations, shafts, slopes, and other
property including impoundments, retention dams, and tailings
ponds. These latter were not specifically enumerated in the
definition of mine under the Coal Act. It has always been the
Committee's express intention that these facilities be included
in the definition of mine and subject to regulation under the
Act, and the Committee here expressly enumerates these facilities within the definition of mine in order to clarify its intent. The collapse of an unstable dam at Buffalo Creek, West
Virginia, in February of 1972 resulted in a large number of
deaths, and untold hardship to downstream residents, and the
Committee is greatly concerned that at that time, the scope
of the authority of the Bureau of Mines to regulate such
structures under the Coal Act was questioned. Finally, the
structures on the surface or underground, which are used or
are to be used in or resulting from the preparation of the
extracted minerals are included in the definition of 'mine'.
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 possibly [sic] interpretation, and it
is the intent of this Committee that doubts be resolved in favor
of inclusion of a facility within the coverage of the Act." S.
Rep. No. 95-181, 95th Cong., 1st Sess. 14 (1977), reprinted in
U.S. Code Cong. & Admin. News 1977, 3401, 3414.
While that language is expansive, it is mine oriented, and it cannot be
forgotten that the Act was intended to establish a "single mine safety

1889

and health law, applicable to all mining activity." S. Rep. No. 461,
95th Cong., 1st Sess. 37 (1977) (emphasis added). "The statute is
aimed at an industry with an acknowledged history of serious accidents."
Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589, 594 (3d Cir.
1979). There is no indication of any intention to follow the coal
wherever it might go and certainly no indication that Congress intended
to regulate other industries such as electric utilities or steel mills
as only recently asserted by the Secretary. 1/ Indeed, the courts have
recognized that it is "clear that every company whose business brings it
into contact with minerals is not to be classified as a mine within the
meaning of section 3(h)." Donovan v. Carolina Stalite Co., 734 F.2d
1547, 1551 (D.C~ Cir. 1984).
I recognize that, in addition to considering Congress' concerns
as set forth in the legislative history, deference is generally to be
accorded interpretations by the agency charged with enforcing the law.
Here, however, the record contains no evidence that, since the Mine Act
became effective in 1978, the Secretary has made any previous attempt,
either by the issuance of regulations or otherwise, to include electric
power plants within the Act's coverage or to put the operators of such
facilities on notice of liability under the Mine Act. Nor does the
record indicate that the efforts of a district manager to bring Penelec 's facility within its coverage represents anything more than
the district manager's own personal interpretation of the Mine Act.
It should be noted that the Secretary's counsel stated at oral argument that resolution of this case rests solely on the language of the
Mine Act itself, which he asserted mandates coverage, and has nothing to
do with deference to the Secretary's interpretation of the Mine Act. Tr.
32, Oral Argument, June 28, 1989. It is not surprising that the Secretary eschews ·deference to her interpretation of this portion of the Mine
Act since the Secretary's policy with respect to whether electric
utilities come within Mine Act coverage has been exhibited in a variety
of ways as follows:
1. Her implied interpretation that coal handling at electric
power generating stations does not come within the Mine Act, based on
her failure to assert such jurisdiction for approximately ten years
after passage of the Mine Act.

1/
This position was advanced by the Secretary during oral argument before the Commission in Westwood Energy Properties v. Secretary of Labor,
MSHA, PENN 88-42R, Tr. 26, June 28, 1989.

1890

2.

Her position as set forth in an earlier Commission case that:
MSHA traditionally has not inspected power plants. Although the Secretary is not able to cite to a particular
memorandum incorporating this policy, MSHA and its predecessors have consistently found the production of power
to be outside the jurisdiction of the agency.
MSHA has taken into account that a portion of the
process utilized to produce electric power from coal
requires handling and processing coal hut has determined that those activities are subsumed in the
specialized process utilized to produce electric power,
and that the overall power plant process is more feasibly
regulated by OSHA.

Utility Fuels Inc., Docket No. CENT 85-59 (Sec. Motion to Dismiss,
November 29, 1985).
3. Her position that coal handling at electric utilities comes within coverage of the Mine Act, as asserted in this case.
4. Her position that coal handling at electric power generating
facilities is governed by the OSHAct, as set forth in regulations
recently proposed by OSHA for the operation and maintenance of electrical
power generation facilities, which regulations include detailed provisions
governing coal handling and processing at those facilities. 54 Fed. Reg.
4974-5024 (1989).
5. Her position that OSHA's proposed rules would apply only to
electric generating facilities using already processed coal and that
facilities using run-of-mine coal would be subject to Mine Act jurisdiction, as asserted by her counsel at oral argument before the Commission in this case. Tr. 24, 29, 33, Oral Argument, June 28, 1989. ];_/
Because her interpretations have been neither longstanding nor consistent, any deference that would ordinarily be due to the Secretary in
interpreting the Mine Act is not appropriate to this instance. See,
e.g., I.N.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987); American MWng
Congress v. EPA, 824 F.2d 1177, 1182 (D.C. Cir. 1987); Sec. v. BethEnergy Mines, 11 FMSHRC 1445, 1451 (August 1989); Sec. v. Florence
Mining Co., 5 FMSHRC 189, 196 (February 1983).

2/
Since some conveyors in Penelec's operation transport coal that meets
the emission standards without further processing, those conveyors would,
under this theory, presumably remain subject to OSHA jurisdiction rather
than MSHA jurisdiction, a position that seems to belie that any consideration was given "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," as required by Section 3(h) of the Mine Act, 30 U.S.C.
§802(h)(l).

1891

I also view the Commission's holding today as inconsistent.with
our precedent. The Commission previously found that a commercial dock
in which coal was stored, broken and crushed did not fall within the
coverage of the Mine Act because the coal preparation was not done to
"meet customers' specifications nor to render the coal fit for any particular use." MSHA v. Oliver M. Elam, Jr., Co., 4 FMSHRC 5, 8 (January
7, 1982). After noting that the Commission had concluded in Elam that
the Mine Act requires an inquiry "not only into whether the operation
performs one or more of the listed work activities [in section 3(i)],
but also into the nature of the operation performing such activities,"
the Commission today avoids an examination of the nature of Penelec's
operation and finds that, because the station's coal must meet "particular specifications and emissions requirements," an electric power
generating plant is really a coal mine. Slip op. at 6.
(emphasis in original).
I am unable to find any basis in either the statute or the legislative history for the distinctions made by either the Secretary (if the
conveyor belt moves processed coal, OSHAct governs; if it moves run-ofmine coal, Mine Act governs) or the Commission majority (if coal
processing is done other than to meet customer specifications, no Mine
Act coverage; if coal is processed to meet "particular specifications,"
Mine Act coverage) nor do I see that these distinctions have anything
to do with the Mine Act's overall aim, which is to regulate the safety
and health of miners. Rather, I think these artificial distinctions
have arisen as a result of various words and phrases of Mine Act
definitions having been examined in isolation, with no consideration
being given to Congress' overall aim, and with no consideration being
given to the Commission's language in Elam, supra, that requires inquiry
into "the nature of the operation" as well as examination of the particular operations being performed. 3/ Had Congress wanted to regulate not
only mines but electric power generating stations, steel mills and other
coal consumers, I think it would surely have given some indication of
that intent.

3/
As noted by the United States Court of Appeals for the District of
Columbia Circuit, statutes "must be interpreted in light of the spirit
in which they were written and the reasons for their enactment." General
Serv. Emp. U. Local No. 73 v. N.L.R.B., 578 F.2d 361, 366 (D.C. Cir.
1978). In the same vein, Judge Learned Hand observed that "the duty
of ascertaining [the] meaning [of a statute] is difficult at best and
one certain way of missing it is by reading it literally .•• " See
Monarch Life Ins. Co. v. Loyal Protective Life Ins. Co., 326 F.2d
841, 845 (2d Cir. 1963).

1892

In determining what constitutes a "coal mine" as defined by the
Mine Act, the majority also dismisses out of hand the precedential value
of any cases decided under the Rlack Lung Benefits Act. 30 U.S.C.§901
et seq. (1982). I do not believe those cases can be so lightly dismissed. The majority has determined that these cases lack precedential
value because "black lung benefits are financed by a trust, funded by a
tax on 'coal sold by producers,'" whereas "the Mine Act's goal is to
assure safe and healthful working conditions for the nation's miners."
Slip op. at 8, n. 7. "Under the Mine Act 'coal mine' is defined in
broad terms to better effectuate the salutary effects of that goal."
Slip op. at 8, n. 7. In fact, the definition of "coal mine" set forth
in section 3(i) of the Mine Act specifically applies not only to the
Mine Act but also to the Black Lung Benefits Act. I find nothing in
the Mine Act, the Black Lung Benefits Act or the legislative history
that suggests the term is to be construed differently for purposes of
determining Mine Act coverage than in determining Black Lung benefits
coverage. And while the majority quotes the court in Stroh v. Director,
Office of Workers' Compensation Programs, 810 F.2d 61 (3d Cir. 1987) to
the effect that the function of a miner seeking black lung benefits
should be "integral to the ••• preparation of coal, not ancillary to the
delivery and commercial use of processed coal" (slip op. at 8, n. 7) as
additional evidence of the irrelevance of the Black Lung ca~es, I view
the test developed by the Stroh court and other courts for eligibility
for Black Lung benefits as quite relevant in determining when an operation falls within the definition of a "coal mine" as set forth in the
Mine Act. 4/ In fact, the United States Court of Appeals for the Third
Circuit, in deciding a black lung case, made specific reference to its
earlier holding in Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d
589 (3d Cir. 1979), a Mine Act case, as authority for its construction of
the terms "coal mine" and the "work of preparing coal." Dowd v. Director,
OWCP, 846 F.2d 193, 195 (3d Cir. 1988).

4/
The test set forth is Stroh and earlier cases for determining
eligibility for black lung benefits involves a two-prong test, the
first being a "situs" test, which requires work in or around a coal
mine or coal preparation facility and has required the courts to
construe the terms "coal mine," and "work of preparing coal" as defined in section 3 of the Mine Act. The second prong is the "function"
test referred to by the majority, which requires that the claimant's
job be "integral to the extraction or preparation of coal, not ancillary
to the delivery and commercial use of processed coal." It should be
noted that, if one agrees with the Secretary and the majority that
Penelec's operations include "coal preparation," those of Penelec's
employees who work in such preparation would fall within the definition of "miner" set forth in the Black Lung Benefits Act, i.e., "
any individual who works or has worked in or around a
coal
preparation facility in the ••• preparation of coal." 30 U.S.C. §902(d).

1893

The Secretary also asserts that the Black Lung cases are of no
avail to Penelec because they involve "the handling of coal that
already had been prepared." Sec. br. at 14. I believe the Secretary
misreads those cases. In the cases to which she refers, the courts have
made the determination, as part of their construction of the terms "coal
mine" and "the work of preparing coal," that once coal has entered the
stream of commerce or reached the ultimate consumer, coal preparation
has been completed and that, thus, the facilities at which those
claimants worked did not fall within the definitions of "coal mine" or
"work of preparing coal" set forth in sections 3(h) and 3(i) of the Mine
Act. Based on their determination that the term "coal preparation"
was much narrower in scope, the claimants were found ineligible for
benefits. In Eplion v. Dir., OWCP, 794 F.2d 935 (4th Cir. 1986), cited
by the Secretary, the mine operator washed coal for a second time because of dust complaints. Because the washing was "not necessary for
processing of the coal into its marketable form," the court declined to
extend the definition of a "coal mine" to include that facility. Eplion
v. Director, OWCP, supra, at 937. (emphasis added). Likewise, the court
in Southard found that the "preparation of coal occurs precedent to its
retail distribution and consumption." Southard v. Director, OWCP, 732
F.2d 66, 69 (6th Cir. 1984). Accord Director, OWCP v. Ziegler Coal
Co., 853 F. 2d 529, 536 (7th Cir. 1988); Johnson v. Weinberger, 389
-W:-supp. 1296 (S.D. W.VA. 1974).
Also, as noted by the Secretary, the Third Circuit in Dowd, found
the claimant to be a miner, but in so doing stressed that "the claimant's employer ••• does not consume the coal, and does not utilize coal
to produce a product other than coal." Dowd, supra, at 195. As further
noted by the Secretary, the court in Str"'O'ilf"ound the claimant to be a
miner but also emphasized that the "processing plant to which Stroh delivered was not an ultimate consumer ••• " Stroh, supra, at 64. Similarly,
the Fourth Circuit in Roberts v. Weinberger found the claimant to be a
miner, stating that coal is extracted and prepared when it is "in condition for delivery to distributors and consumers." Roberts v. Weinberger, 527 F.2d 600, 602 (4th Cir. 1975). These cases, while not
affirmatively holding that coal consumers do not fall within the
definition of "coal mine," expressly limit their holdings to facilities
that are not coal consumers.
As noted above, I believe that, while the definition of "coal
mine" as set forth in the Mine Act is to be broadly interpreted, the
interpretation is not without limitations. I am of the opinion that
the plain language of the statute does not bring Penelec's operation
within coverage of the Mine Act, that the legislative history does not
suggest the breadth of coverage asserted by the Secretary and that the

1894

Secretary's interpretation, as set forth in this case, is not entitled
to deference. In addition, I am not convinced that ultimate consumers,
engaged in the production of a product other than coal, are subject to
Mine Act jurisdiction.
For the foregoing reasons, I would reverse the judge and
dismiss the case against Penelec.

Commissioner

Distribution
John P. Proctor, Esq.
Bishop, Cook, Purcell & Reynolds
1400 L Street, N.W.
Hashineton, D.C. 20005
Carl C. Charneski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Gary Helick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1895

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

October 27, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 86-262

v.
OTIS ELEVATOR COMPANY

BEFORE:

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

DECISION

BY:

Ford, Chairman; Backley, Doyle and Nelson, Commissioners

In this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act"
or "Act"), we are asked to decide whether Commission Administrative Law
Judge Roy J. Maurer erred in concluding that Otis Elevator Company
("Otis") was the type of independent contractor that falls within the
definition of "operator" as set forth in the Mine Act, and whether
substantial evidence of record supports his determination that Otis
violated 30 C.F.R. § 75.1725(a) by improperly installing a governor rope
on a mine elevator. 9 FMSHRC 1933 (November 1987)(ALJ). 1/ We granted
Otis' petition for discretionary review and its motion t~ consolidate
this proceeding for purposes of briefing and oral argument with Otis
Elevator Company, Docket Nos. PENN 87-25-R, 87-26-R, and 87-86. For the
reasons set forth below, we affirm the judge's conclusions in the
present proceeding as to both issues presented.

1/

30 C.F.R. § 75.1725(a) provides:
Mobile and stationary machinery and equipment
shall be maintained in safe operating condition and
machinery or equipment in unsafe condition shall be
removed from service immediately.

1896

I.

Factual and Procedural Background
Otis is a company engaged in the business, among other things, of
providing maintenance and repair services to all types of elevators.
Elevators serviced by Otis are located in various establishments
including office buildings, hospitals, factories, residential buildings,
and mines. In the case at hand, Otis serviced two elevators located in
the Greenwich No. 1 underground coal mine of the Pennsylvania Mines
Corporation ("PMC").
The work relationship between PMC and Otis was governed by the
terms of an elevator service and maintenance contract, which commenced
January 1, 1986, and continued in force during all of 1986. The
contract covered five elevators located in mines owned by PMC, including
the North Portal elevator and the Main A elevator located in the
Greenwich No. 1 Mine. Exh. G-1.
Essentially, the terms of the contract required Otis to provide
its own qualified personnel to maintain PMC's elevators in proper and
safe operating condition. Specifically, the contract required Otis to
"regularly and systematically examine, adjust, lubricate as required,
and repair or replace if warranted" all electrical and mechanical parts-;
and accessory equipment of the elevator apparatus; to renew all wire .
ropes and all travelling cables as necessary; to periodically examine
all safety devices and governors; and to make a customary annual no-load
safety test, a sixty-day test, and a five-year full-load safety test.
The contract also included "emergency shutdown callback service" and
"trouble between ... regular examinations service." Exh. G-1.
Ron Riva, chief electrician at PMC's No. 1..-Mine for 13 years,
testified that Otis employees "worked with [himl" in that they either
reported to him when coming onto mine propertyor corrected elevator
problems as indicated by Riva or any other foreman. Riva explained that
the weekly maintenance by Otis included checking tips, brushes, ropes,
switches, and "really anything that pertained to elevator maintenance,"
and that, under the 60-day safety test, Otis' also "might" [measure] the
ropes." Tr. 22-24. According to Riva, Otis also shortened or replaced
hoist ropes and governor cables and, in general, performed "troubleshooting" duties on an emergency "anytime" basis to restore elevator
service when PMC employees were unable to do so. Tr. 24. Riva
estimated that Otis' weekly inspections required about one and a half
hours, if no special problems were involved. He stated that Otis was
called for service more frequently during the winter when mine elevators
experience more problems because of cold temperatures.
Otis employees were not supervised by PMC employees. They
normally carried out their duties in the "penthouse" (the surface area
housing the elevator controller and motor), the shaft (the area within
which the elevator ascends and descends), and the underground pit area
(the bottom of the shaft where the switches and controls are located).
According to Riva, both elevators at the No. 1 Mine were used to
transport the production crews into and out of the mine, an average of

1897

200 people each day at the Main A elevator and 50 at the North Portal.
Both elevators also served as mine escapeways required by regulations of
the Department of Labor's Mine Safety and Health Administration
( "MSHA").
On March 3, 1986, Leroy Niehenke, an MSHA electrical inspector
with ten years experience in inspecting mine elevators, issued the
section 104(a) citation in question, alleging a violation of 30 C.F.R.
§ 75.1725(a) in that two Otis employees had installed a new governor
rope on the North Portal elevator in an unsafe manner, creating a hazard
to the mine employees. The Secretary filed a petition for assessment of
civil penalty and this matter proceeded to hearing before Judge Maurer.
Before the judge, Otis argued that it was not engaged in mine
construction or extraction work, did not control any area of the mine,
and did not maintain a continuing presence at the mine. On this basis,
it contended that it was not an "operator" within the meaning of the
Mine Act under what it viewed as the controlling legal prec,,i.ents of
National Indus. Sand Ass'n v. Marshall, 601 F.2d 289 (3rd Cir. 1979),
and Old Dominion Power Company v. Secretary of Labor & FMSHRC, 772 F.2d
92 (4th Cir. 1985). Otis further argued that its activities were
properly subject to regulation under the Occupational Safety and Health
Act of 1970, 29 U.S.C. § 651 et seg. (1982)(the "OSHAct"), not the Mine
Act. As to the alleged violation of 30 C.F.R. § 75.1725(a), Otis
contended that the mandatory standard was so vague as to be
unenforceable and that, in any event, the inspector used improper
criteria in determining that a violation occurred.
In finding Otis to be an operator within the meaning of the Mine
Act, the judge rejected Otis' interpretations of National Sand and Old
Dominion, supra. National Sand, the judge stated, held only that an
independent contractor working on mine property is not an "operator"
under the Act if its contact with the mine is so infrequent or de
minimis that it would be difficult to conclude that services were being
performed. 9 FMSHRC at 1935-36. The judge also distinguished Old
Dominion, involving an electric utility, in which the utility's only
contact with the mine was inspection, maintenance and monthly reading of
an electric meter for billing purposes. After finding that the
employees of Old Dominion Power Company ("Old Dominion") rarely, if
ever, went on mine property and hardly, if ever, came into contact with
mining hazards, the Fourth Circuit found that the utility was not an
operator. 9 FMSHRC at 1936-37. Contrasting the facts in this case with
those involved in the court decisions, the judge concluded that Otis'
contractual obligations and performance thereof constituted a continuing
and substantial, as opposed to de minimis, presence at Greenwich No. 1
Mine. 9 FMSHRC at 1937. Although noting that the elevator was not used
to transport coal and was not, therefore, a part of the coal extraction
process per se, he nevertheless found that because the North Portal
elevator transported approximately 20 percent of the work force into and
out of the mine on a daily basis and was additionally a designated
escapeway, it was an "essential ingredient involved in the coal
extraction process." Id. Last, he determined that Otis was the party
responsible for the cited violation and was also the one best suited to
both correct it and prevent its recurrence. Id. Accordingly, the judge

1898

determined that Otis was properly subjected to Mine Act jurisdiction.
As to. the violation of the mandatory standard, the judge, citing
Alabama By-Products Corporation, 4 FMSHRC 2128 (December 1982),
involving a similar challenge to section 75.1725(a), concluded that the
standard was not "so overbroad and/or so vague" as to be unenforceable.
9 FMSHRC at 1937-38. While agreeing that the inspector had relied in
part on American National Standards Institute ("ANSI") standards not
incorporated into the MSHA regulations, the judge found that the
standards did provide some "guidance" as to the proper method for
configuring the elevator's wire rope terminations. 9 FMSHRC 1940. He
concluded that the elevator governor assembly and, therefore, the
elevator, were in unsafe condition within the meaning of section
75.1725(a), and thus he upheld the inspector's finding as to a violation
of the standard. 9 FMSHRC at 1940-42. The judge also affirmed the
inspector's designation of the violation as being of a significant and
substantial nature and assessed a civil penalty of $750.
II.

Coverage of Otis under the Mine Act
We begin by considering whether Otis was an "operator" subject to
the coverage of the Mine Act. Before us, Otis argues that it is a
business entity subject to regulation by the Occupational Safety and
Health Administration ("OSHA") under the OSHAct, rather than by MSHA,
that it is not engaged in mine construction or extraction and that it
does not maintain a "continuing presence" at the PMC mine. Therefore,
Otis asserts that under the controlling precedent of Old Dominion, it is
not an "operator" or "independent contractor" within the meaning of
section 3(d) of the Mine Act. ~/ We disagree.
~/

The relevant sections of the Mine Act are:
Sec. 3.

For the purposes of this [Act], the term

*

*

*

(d) "operator" means any owner, lessee, or other
person who operates, controls, or supervises a coal
or other mine or any independent contractor
performing services or construction at such mine;

*

*

*

(h)(l) "coal or other mine" means (A) an area of
land from which minerals are extracted in non liquid
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

1899

Section 3(d) of the Mine Act expanded the definition of "operator"
under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C.
§ 801 et seq .• (1976)(amended 1977)("1969 Coal Act"), to include "any
independent contractor performing services or construction at such
mine." This Commission has consistently recognized that the inclusion
of independent contractors within the statutory definition of "operator"
clearly reflects Congressional desire to subject such contractors to
direct enforcement by MSHA under the Mine Act. See, ~·· Old Ben Coal
Co., 1 FMSHRC 1480, 1481, 1486 (October 1979), aff'd, No. 79-2367 (D.C.
Cir. December 9, 1980)(unpublished opinion); Ca~Black Enterprises,
8 FMSHRC 1151, 1155 (August 1985). We also recognize that not all
independent contractors are operators under the Mine Act, and that
"there may be a point, at least, at which an independent contractor's
contact with a mine is so infrequent or de minimis that it would be
property including impoundments, retention dams, and
tailing ponds, on the surface or underground, used
in, or to be used in, or resulting from, the work of
extracting such minerals from their naturai 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;
(h)(2) For purposes of [titles] II, III, and IV of
this [Act], "coal mine" means an area of land and
all structures, facilities, machinery, tools
equipment, shafts, slopes, tunnels, excavations, and
other property, real or personal, placed upon,
under, or above the surface of such land by any
person, used in, or to be used in, or resulting
from, the work of extracting in such area bituminous
coal, lignite, or anthracite from its natural
deposits in the earth by any means or method, and
the work of preparing the coal so extracted, and
includes custom coal preparation facilities;

*
Sec. 4. Each coal or other mine, the products of
which enter conunerce, or the operations or products
of which affect conunerce, and each operator of such
mine, and every miner in such mine shall be subject
to the provisions of this [Act].
30 u.s.c. §§ 802(d) & (h)(l) & (2) & 803.

1900

difficult to conclude that services were being performed." National
Sand, supra, 601 F.2d at 701. See also Old Dominion, supra.
We have no difficulty in finding that Otis, from a practical and
economic standpoint, is an independent contractor performing services at
PMC mines. Plainly, Otis is an independent business entity that, by
contract with PMC, has the sole responsibility for examining mine
elevator equipment owned by PMC and maintaining it in safe operating
condition. There is also no question that the elevators serviced by
Otis fall within the definition of "coal mine" under section 3(h) of the
Act (n.2, supra), as "structures, facilities, machinery, or equipment
used in the work.of extracting coal."
The legislative history of the Mine Act clearly shows that the
goal of Congress, in expanding the definition of "operator" in the Mine
Act to include "independent contractors," was to broaden the enforcement
power of the Secretary so as to reach not only owners and lessees but a
wide range of independent contractors as well. In explaining this
amendment, the key Senate report on the bill enacted into the Mine Act
referred not only to those independent contractors involved in mine
construction but also to those "engaged in the extraction process."
S. Rep. No. 181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate
Subcommittee on Labor of the Committee on Human Resources, 95th Cong.,
2nd Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977 at 602 (1978)("Legis. Hist.") Similarly, the Conference Report
referred to independent contractors "performing services or construction" and "who may have continuing presence at the mine." S. Conf.
Rep. No. 461, 95th Cong. 1st Sess. 37 (1977), reprinted in Legis. Hist.
1315.
Two important court decisions have addressed the meaning of and
relationship between the terms "independent contractor" and "operator"
in the Mine Act. In National Sand, the Third Circuit, construing the
definition of "operator" in the Mine Act, concluded that "some, if not
all, independent contractors are to be regarded as operators," with the
understanding that there may be a point at which the services provided
or the degree of involvement in mining activities is so remote or so
infrequent that they cannot be considered as operators. National Sand,
601 F.2d at 701. The Fourth Circuit, in Old Dominion, held that
Congress intended to include as operators, "only those independent
contractors who are involved in mine construction or extraction and who
have a continuing presence at the mine." 772 F.2d at 96 (emphasis
added). Finding that the employees of Old Dominion, an ele~tric
utility, "rarely go upon mine property," that they "hardly if ever came
into contact with the hazards of mining," and that their "only presence
on the mine site was to read an electric meter once a month and to
provide occasional equipment servicing, the Court concluded that the
utility's contacts were "so rare and remote from the mine construction
or extraction process, [it did] not meet this definition of 'operator."'
772 F.2d at 96, 97 (emphasis added).
To adopt in this case the restrictive interpretation of Old
Dominion urged by Otis would, we believe, frustrate Congress' clear
intent, when it expanded the definition of "operator" in the Mine Act,

1901

to broaden and facilitate direct regulation of independent contractors
on mine property.
Obviously, "mine construction" and the "extraction process"
include a myriad of specialized services essential to those activities.
It would have been difficult, in our view, for Congress to have
envisioned that myriad and enumerated them under section 3(d) of the
Act. Rather than being in conflict with National Sand, we read the
Fourth Circuit's Old Dominion decision as examining the independent
contractor's proximity to the extraction process and the extent of its
presence at the mine to determine whether the independent contractor is
an operator under the Mine Act. Considering the factual basis relied on
by the Fourth Circuit in Old Dominion, we find that the services
performed by Otis and the continuity of its presence at the mine site
are entirely different qualitatively and in magnitude.
In Old Dominion, as noted, the Court found that the power company
employees• sole contact with the mine was the inspection, maintenance
and monthly reading of the power company's meter, for billing purposes,
and that its employees rarely went upon mine property and hardly, if
ever, came into contact with mining hazards. The substation in which
the meter was located was in a remote area of mine property and was
isolated by a locked chain link fence. 772 F.2d at 93, 96. In
contrast, Otis employees worked in areas of the PMC mine property that
were clearly working areas of a mine, totally regulated by MSHA. Otis
employees worked both on the surf ace and in underground sections of the
mine elevator system, in areas where miners normally worked and
travelled, and they were exposed to many of the same hazards as the PMC
miners. Otis' contacts with the PMC mine were certainly more frequent
and of a longer duration than the contacts involved in Old Dominion.
Moreover, the mine elevator was used to transport some 20 percent
of the mine 1 s work force into and out of the mine on a daily basis and
was also a designated escapeway -- a work setting far different from the
isolated, remote electric substation involved in Old Dominion. The
Fourth Circuit spoke in terms of involvement in or proximity to the
extraction process. We are satisfied that a mine elevator used for
daily transport of the work force into and out of the mine has a
sufficient proximity in nature and purpose to the extraction process to
be fairly considered, in the judge's words, "an essential ingredient
involved in [that] process." 9 FMSHRC at 1937. Since Otis' employees
were working in the center of mining activities while servicing
equipment essential to the mining process, were exposed to mining
hazards, and had a direct effect on the safety of others because of
their exclusive control over the safety of the mine elevators, we
likewise conclude that their work was sufficiently related to the
overall extraction process to bring Otis within the Mine Act's ambit.
Finally, Otis urges that its presence on the PMC mine ought to be
regulated under the OSHAct rather than under the Mine Act. The
Secretary of Labor enforces both the OSHAct and the Mine Act, and
exercises administrative discretion in determining which of her two
enforcement agencies, OSHA or MSHA, should exercise jurisdiction under
potentially conflicting circumstances. Court precedent makes clear that

1902

the Secretary is entitled to great deference in interpreting and
enforcing the Mine Act. See ~· Brock v. Cathedral Bluff Shale Oil
Co., 796 F.2d 533, 537 (D.C. Cir. 1986). As the Court made clear in
Cathedral Bluffs, that deference is particularly due with respect to the
Secretary's "view of the effect of [her] own actions taken under the
Act. ... " Id. See also Donovan v. Carolina Stalite Co., 734 F.2d 1547,
1552 & n.9--CD.C. Cir. 1984).
In addition, section 4(b)(l) of the OSHAct, 29 U.S.C. 653(b)(l),
states in pertinent part:
Nothing in this chapter shall apply to working
conditions of employees with respect to which other
Federal agencies ... exercise statutory authority to
prescribe or enforce standards or regulations
affecting occupational safety or health.
Addressing the question of overlapping jurisdiction under the OSHAct,
the Fourth Circuit, in Southern Railway Company v. Occupational Health
Review Commission, 539 F.2d 335 (1976), concluded that exemption from
the OSHAct applies whenever another federal agency has actually
exercised its statutory authority to regulate employee safety. 539 F.2d
at 339. The Court stated that when the facts show that a federal agency
has not exercised its statutory authority to regulate employee safety,
the OSHAct applies, but where another federal agency has exercised its
statutory authority over standards affecting safety or health in the
area in which the employee goes about his daily tasks, the authority of
OSHA is foreclosed. Id. See also Taylor v. Moore McCormack Lines,
Inc., 621 F.2d 88, 91 (4th Cir. 1980). There is no indication in this
record that OSHA had ever attempted to regulate Otis activities on mine
property. See Exh. G-1, G-9.
As we have already noted, the record in this case demonstrates
that the areas in which Otis employees worked were areas of the mine
completely regulated by MSHA. Otis employees worked both on the surface
and underground in areas where miners normally worked and travelled and
were exposed to many of the same hazards. We also note that Otis had
earlier registered with MSHA as an independent contractor pursuant to 30
C.F.R. Part 45 and paid civil penalties for previous violations under
the Mine Act.
Accordingly, we affirm the finding of the judge that Otis, by
virtue of the services provided and its continuing presence at the mine
site, as required by the contract between it and PMC falls within the
definition of "operator" set forth in the Mine Act and is, therefore,
subject to its jurisdiction.
III.

The violation of 30 C.F.R. § 75.1725(a)
We address the question of the violation of section 75.1725(a).
The citation issued by Inspector Niehenke with respect to the elevator's
governor stated:

1903

The smelter socket termination and Crosby Clamp
termination were not properly made because the
basket was not poured with smelter to the top of the
small end of this basket and holes in the smelter
existed on the wide end of this basket. The Crosby
Clamp termination was made with the (2) ~ 11 saddles
on the dead end of this wire rope and there should
be (3) three Crosby Clamps used on this !" wire rope
termination.
In general, a governor is a device for regulating or controlling
the speed of the engine or motor. See Bureau of Mines, U.S. Dep't of
Interior, Dictionary of Mining, Mineral, and Related Terms 501 (1968)
("DMMRT"). The governor rope, a one-half-inch diameter steel rope, is
attached at the top of the elevator car to a lever and to the bottom of
the car by bolt clamps. At the top of the shaft, the rope passes
through a sheave wheel (a grooved wheel that guides or supports a cable
or rope between the load and the hoisting engine (DMMRT 997)), which is
located directly underneath the governor mechanism. At the bottom of
the shaft, the rope runs over a second sheave wheel. These wheels turn
as the rope moves, causing the flyballs on the governor mechanism to
rise as the speed of the rope increases. The governor mechanism senses
the speed of the elevator through the governor rope, and if the elevator
speed exceeds 125 percent of its rated speed, centrifugal force applied
to the flyballs raises them to the point where two metal jaws in the
governor mechanism clamp down on the governor rope. In turn, the
governor pulls up the lever at the top of the car, activating the
safeties and stopping the descent of the elevator car. (The actual
raising and lowering of the elevator during normal operation is
controlled by other ropes attached to the top of the elevator car.)
The alleged violation involved the manner in which the governor
rope had been attached at both the top and bottom of the elevator car.
At the top of the car the rope is attached to the safety lever by means
of a socket, a tapered metal basket about 2~ inches in length. The rope
is passed through an opening in the smaller end, about five inches of
the rope's end is unraveled, and the separated strands are then twisted
into a "rosette" shape so as to make the end of the rope larger than the
opening through which it had passed. The rosette is then pulled back
into the socket, and "babbitt" (a molten alloy of tin, copper and
antimony (see DMMRT 69; Tr. 105)) is poured over the rosette, filling up
the socket. When the babbitt hardens, it produces a secure connection
between the rope and the socket.
Inspector Niehenke testified that the babbitt had not adhered to
and covered the wire rope, an indication that insufficient babbitt had
been poured into the socket to provide a secure connection of sufficient
strength. Niehenke believed that in an emergency, this problem would
have caused the governor rope, in a free fall, to come out of the
socket, thus failing to activate the lever and the safeties and allowing
the elevator to continue in an uncontrolled fall.
Niehenke also testified that the governor rope should be attached
to the bottom of the car by three "U" bolts, called Crosby clamps, but

1904

that in the cited instance only two bolts had been used. Further, he
stated that they had been installed with the "U" end of the bolt placed
over the "live" end of the rope (the end of the rope attached to the
equipment) rather than over the "dead" end (the end of the rope that is
looped around and cut off). In the inspector's opinion, the "U" bolts
should have been placed over the "dead" end of the rope because, as
installed, the rope wires could be crushed, resulting in the failure of
the connection.
Niehenke's criteria for inspecting elevator ropes and the methods
for properly attaching a governor rope were essentially based on the
directions and specifications set out in the ANSI publication "Wire
Ropes for Mines," and on the MSHA "Inspector's Manual" for elevators.
Tr. 58, 60, 63-68, 70, Exh. G-5, G-7. MSHA regulations themselves do
not set requirements for proper elevator wire rope terminations, nor are
the ANSI standards incorporated by reference into the MSHA regulations.
Tr. 103-06.
Ronald Gossard, an MSHA electrical engineer, testified that the
conditions described by the inspector indicated unsafe terminations on
the governor rope. Given these conditions, Gossard believed that the
elevator would operate safely until the governor mechanism was
activated, at which time the terminations and the safety mechanisms
would fail. Gossard added that failure to fill the basket with babbitt
would also allow moisture, consisting of acidic mine water, to
accumulate in the basket and quickly corrode the rope in that location.
James Beattie, District Maintenance Supervisor for Otis, stated
that even without any babbitt in the socket, the "rosetted" rope end
could not possibly be pulled through the small end of the basket and the
connection would not fail. Tr. 185-88. In support of his opinion,
Beattie showed a videotape of a laboratory test performed by Otis on a
one-half inch wire rope, with an unbabbited socket at one end, and one
"U" bolt correctly installed at the other. When a force of 3,200 pounds
was applied, there was no slippage at either connection. Exh. R-7, Tr.
189-200. Beattie also stated that three "U" bolts were unnecessary and,
while he would have changed the rope attachments had he seen them, he
did not consider them to be unsafe.
Before the judge, Otis contended that section 75.1725(a) is
unconstitutionally vague because it fails to specify the standard of
conduct required in order to comply with its terms, and because MSHA has
improperly cited ANSI standards as mandatory regulations in alleging a
violation under the Mine Act.
On review, Otis contends that section 75.1725(a) is vague as
applied, to the extent that the judge used the ANSI standards to
determine what a "reasonably prudent person" would do with respect to
the equipment in question pursuant to the test set forth in Alabama ByProducts, supra. Otis also relies on Jim Walter Resources, Inc.,
3 FMSHRC 2488, 2490 (November 1981), in which the Commission held that
the ANSI wire rope criteria imposed no mandatory requirements under MSHA
regulations.

1905

In Jim Walter Resources, the Commission held that the wording of
former standard 30 C.F.R. § 77.1903(b), which provided that ANSI
standards "shall be used as a guide," was too ambiguous to impose a
mandatory duty upon operators since it employed both mandatory and
advisory language. 3 FMSHRC at 2490. The Commission agreed, however,
that, in the absence of applicable mandatory standards, "an operator's
consultation with recognized authorities on safe work practices is
desirable." 3 FMSHRC at 2490 n. 4. In Alabama By-Products, construing
the same standard involved here, the Commission held that analysis of an
alleged violation under the general language used in this regulation "is
appropriately measured against the standard of whether a reasonably
prudent person familiar with the factual circumstances surrounding the
allegedly hazardous condition, including any facts peculiar to the
mining industry, would recognize a hazard warranting corrective action
within the purview of the applicable regulation." 4 FMSHRC at 2129. We
find the judge's decision consistent with these decisions.
The judge's decision carefully explains that the ANSI standards
were referred to only as guidelines in determining the condition of the
rope terminations, not as mandatory safety standards by which the
violation was established. He expressly stated that the ANSI standards
"provide some guidance to the inspector and myself" in determining
whether the rope assembly was unsafe, and that non-compliance with those
standards was not per se determinative of a violation -- but rather was
merely "a single piece of the equation." 9 FMSHRC at 1740. The judge,
with equal clarity, applied the Alabama By-Products reasonably prudent
person test in finding the existence of a violative condition. 9 FMSHRC
at 1937-42. We therefore conclude that the judge correctly applied
Commission precedent set out in Alabama By-Products and Jim Walter
Resources, supra, and that, to the extent he relied on testimony
concerning ANSI standards, he correctly considered them only as
guidelines, not as mandatory standards, for purposes of a proper
application of the reasonably prudent person test.
Finally, we consider Otis' argument that the finding of a
violation is not supported by substantial evidence of record. That
standard of review requires a weighing of all probative record evidence
and an examination of the fact finder's rationale in arriving at the
decision. See,~·· Universal Camera Corp. v. NLRB, 340 U.S. 474
(1951); Arnold v. Secretary of HEW, 567 F.2d 258, 259 (4th Cir. 1977).
In order to satisfy that standard, this Commission has consistently held
that a judge must sufficiently summarize, analyze and weigh the relevant
testimony of record, and explain his reasons for arriving at his
decision, thereby affording the Commission a sufficient basis for review
on substantial evidence grounds.
In this instance, the judge has carefully summarized the testimony
of the inspector and the two expert witnesses in detail. We agree, as
the judge found, that the factual testimony of the inspector concerning
the condition of the governor rope terminations was essentially
unrebutted by Otis. The judge's decision weighs the opinion testimony
of the expert witnesses and, in our view, adequately states the judge's
rationale in accepting the testimony of MSHA's witness that the
babbitted termination would likely fail in an emergency situation. Our

1906

In Jim Walter Resources, the Commission held that the wording of
former standard 30 C.F.R. § 77.1903(b), which provided that ANSI
standards "shall be used as a guide," was too ambiguous to impose a
mandatory duty upon operators since it employed both mandatory and
advisory language. 3 FMSHRC at 2490. The Commission agreed, however,
that, in the absence of applicable mandatory standards, "an operator's
consultation with recognized authorities on safe work practices is
desirable." 3 FMSHRC at 2490 n. 4. In Alabama By-Products, construing
the same standard involved here, the Commission held that analysis of an
alleged violation under the general language used in this regulation "is
appropriately measured against the standard of whether a reasonably
prudent person familiar with the factual circumstances surrounding the
allegedly hazardous condition, including any facts peculiar to the
mining industry, would recognize a hazard warranting corrective action
within the purview of the applicable regulation." 4 FMSHRC at 2129. We
find the judge's decision consistent with these decisions.
The judge's decision carefully explains that the ANSI standards
were referred to only as guidelines in determining the condition of the
rope terminations, not as mandatory safety standards by which the
violation was established. He expressly stated that the ANSI standards
"provide some guidance to the inspector and myself" in determining
whether the rope assembly was unsafe, and that non-compliance with those
standards was not per ~ determinative of a violation -- but rather was
merely "a single piece of the equation." 9 FMSHRC at 1740. The judge,
with equal clarity, applied the Alabama By-Products reasonably prudent
person test in finding the existence of a violative condition. 9 FMSHRC
at 1937-42. We therefore conclude that the judge correctly applied
Commission precedent set out in Alabama By-Products and Jim Walter
Resources, supra, and that, to the extent he relied on testimony
concerning ANSI standards, he correctly considered them only as
guidelines, not as mandatory standards, for purposes of a proper
application of the reasonably prudent person test.
Finally, we consider Otis' argument that the finding of a
violation is not supported by substantial evidence of record. That
standard of review requires a weighing of all probative record evidence
and an examination of the fact finder's rationale in arriving at the
decision. See,~., Universal Camera Corp. v. NLRB, 340 U.S. 474
(1951); Arnold v. Secretary of HEW, 567 F.2d 258, 259 (4th Cir. 1977).
In order to satisfy that standard, this Commission has consistently held
that a judge must sufficiently summarize, analyze and weigh the relevant
testimony of record, and explain his reasons for arriving at his
decision, thereby affording the Commission a sufficient basis for review
on substantial evidence grounds.
In this instance, the judge has carefully summarized the testimony
of the inspector and the two expert witnesses in detail. We agree, as
the judge found, that the factual testimony of the inspector concerning
the condition of the governor rope terminations was essentially
unrebutted by Otis. The judge's decision weighs the opinion testimony
of the expert witnesses and, in our view, adequately states the judge's
rationale in accepting the testimony of MSHA's witness that the
babbitted termination would likely fail in an emergency situation. Our

1907

reading of the record also supports the judge's conclusion that this
testimony was basically unrebutted by Otis. The decision further
describes the contents of the video taped laboratory experiment
conducted by Otis and sets forth the judge's reasons for finding the
test unpersuasive (the absence of those environmental conditions in
which the equipment must operate and failure to account for the effect
that an initial shock load would have on the inadequately babbitted
termination). The Commission has consistently stated that a judge's
findings of fact and credibility resolutions will not be overturned
lightly, and we find no basis in the record of this proceeding that
would justify our taking that extraordinary step. See ~· Hall v.
Clinchfield Coal Co., 8 FMSHRC 1624, 1629 (November 1986). J/

IV.
Conclusion
Accordingly, we affirm the judge's decision.

~~

~f{.f

Lf',n,£Cc/'

Richard V. Backley, Commission r
/

!11C7~

L. Clair Nelson, Commissioner

J/

In its petition for discretionary review, Otis challenged the
judge's finding that the violation was of a significant and substantial
nature but did not discuss the issue in its briefs or at oral argument.
Notwithstanding this virtual waiver of the issue, we have also examined
the record with respect to that finding. We are mindful, as was the
judge, of the consequences of any serious elevator failure. We conclude
that the judge's findings in this regard are supported by substantial
evidence and are consistent with applicable Commission precedent.

1908

Commissioner Lastowka, dissenting:
The issue before us appears relatively straightforward: does the periodic
maintenance and repair work performed by Otis Elevator Company on elevators at
an underground mine site render Otis a mine "operator" within·the meaning of the
Mine Act. Because of the Mine Act's expansive definitions of the terms "mine"
and "operator", the Secretary of Labor's assertion that Otis is an "operator"
does have a certain surface appeal, I belie~e, however, that a deeper inquiry
is required and that when the roots of the definitional debate before us are
traced with exactitude, including a careful analysis of applicable judicial
precedent, the conclusion that Otis Elevator Company is not a mine operator is
compelled.
To be sure, i f the definition of "operator" set forth in the Mine Act is
given a purely literal reading, Otis loses. Otis is an "independent contractor
performing services ••• at [a] mine." 30 U.S.C. §802(d). The fact is, however,
that the definition does not come before us as a tabula rasa, and in order to
undertake a proper analysis the extensive legislative and judicial writings
directly bearing on its meaning must be considered. 2A Sutherland Statutory
Construction §48.01 (4th ed. 1984).
The appropriate starting point for analysis of the meaning of the Mine
Act's definition of "operator" is the definition that was set forth in the Mine
Act's predecessor statute, the Federal Coal Mine Health and Safety Act of 1969,
30 U.S.C. §801 et seq, (1976}(the "Coal Act"), Section 3(d) of the Coal Act
defined "operator" as "any owner, lessee, or other person who operates, controls,
or supervises a coal mine." Thus, the Coal Act made no specific reference as
to the Act's application to independent contractors performing work at a mine
site,
Consequently, soon after the start of enforcement of the Coal Act
litigation arose over how· the Act was to be applied to the work activities of
such independent contractors.
In Laurel Shaft Construction Co., 1 IBMA 217 (1972), the Department of
Interior's Board of Mine Operations Appeals held that an independent contractor
retained to construct a ventilation shaft at a mine was an "operator" of a "mine"
within the meaning of the Coal Act's definitions and subject to the Act's
requirements. Subsequently, however, in a suit for declaratory judgment filed
in federal district court it was held that coal mine construction companies that
performed construction work at mine sites on behalf of mine operators were not
"operators." Associated Bituminous Contractors v. Morton, No. 1058-74 (D.D.C.,
May 23, 1975). In accordance with this decision, the Secretary of Interior
adopted a policy requiring that mine operators be charged for all violations of
the Coal Act committed by independent contractors.
Following the Secretary's change in enforcement policy, the Bituminous Coal
Operators' Association ( "BCOA") in turn filed another action in federal district
court seeking a declaratory judgment that mine operators are not responsible for
violations committed by independent construction companies. The district court
held that although construction contractors were not "operators" under the Coal
Act,
they were "agents" of the mine operator.
On this basis, the court
concluded that mine operators could be held liable for violations of the Coal

1909

Act committed by their "agent" contractors. BCOA v. Hathaway, 400 F. Supp. 371
(W.D. Va. 1975).
The appeal of this decision led to the Fourth Circuit's
landmark decision in BCOA v. Secretary of Interior, 547 F.2d 240 (4th Cir. 1977).
At the outset of its decision in BCOA v. Secretary, the Fourth Circuit
summarized the types of work usually performed at mine sites by the contractors
claiming to be outside the Coal Act's jurisdiction:
Mining companies frequently employ independent,
general
contractors for both surface and subsurface construction work. These
construction companies build coal preparation plants, tipples,
conveyor equipment, storage silos, bath houses, office buildings,
power lines, roads, drag lines, and shovels. They also construct
underground facilities, such as shafts, slopes, and tunnels. Their
work may be done before or after the mine is in operation. The
construction companies, however, do not process the coal that they
remove.
547 F.2d at 243.
The court rejected the argument that such activities fell outside the Coal
Act's definition of "mine." The court stated: "When a contractor sinks a mine
shaft, excavates a tunnel, or builds a coal preparation plant, it is
constructing a facility "to be used in" the work of extracting or processing
coal." Id. at 245 (emphasis added). The court observed that workers engaged
in such activities are frequently exposed to the same hazards as miners, giving
as an example an instance where a construction contractor hired by a mine
operator to excavate three shafts failed to comply with mine safety standards
and caused a methane explosion. Id.
The court therefore concluded that
"construction companies must observe the health and safety standards set forth
in the Act and the regulations that implement it", and that "the Act authorizes
the Secretary to ••• [proceed] against a construction company that violates the
Act while it is exercising supervision and control over a facility that is to
be used for extracting or processing coal." Id. at 245, 246 (emphasis added).
The next major event in the development of the issue before us is the
amendment of the definition of mine "operator" by the Federal Mine Safety and
Health Act of 1977. 30 u.s.c.§ 801 et seq. (1982)("Mine Act"). The litigation
summarized above had not gone unnoticed during Congress' consideration of
extensive amendments to the Coal Act. In direct response to this litigation,
Congress amended the definition of "operator" to read as follows:
"[O]perator" means any owner, lessee, or other person who operates,
controls, or supervises a coal or other mine or any independent
contractor performing services or construction at such mine.
30 U.S.C. §802(d)(emphasis added). The Senate Committee Report accompanying
the proposed definitional amendment explained:
[T]he def ini ti on of mine "operator" is expanded to include "any
independent contractor performing services o[r] construction at such
mine." It is the Committee's intent to thereby include individuals

1910

or firms who are engaged in construction at such mine, or who may
be, under contract or otherwise, engaged in the extraction process
for the benefit of the owner or lessee of the property and to make
clear that the employees of such individuals or firms are miners
within the definition of the Federal Mine Safety and Health Act of
1977. In enforcing this Act, the Secretary should be able to issue
citations, notices and orders, and the Commission should be able to
assess civil penalties against such independent contractors as well
as against the owner, operator, or lessee of the mine. The Committee
notes that this concept has been approved by the federal circuit
court in Bituminous Coal Opera tors, Assn. v. Secretary of the
Interior, 547 F.2d 240 (C.A.4, 1977).
S. Rep. No. 181, 95th Cong., 1st Sess. 14 (1977), reprinted in Senate
Subcommittee on Labor of the Committee on Human Resources, 95th Cong., 2nd
Sess., Legislative History of the Federal Mine Safety and Health Act of 1977 at
602 (1978 )( "Legis. Hist.")( emphasis added).
The Joint Explanatory Statement of the Conference Committee
specifically addressed the reason for the change in the definition:

also

The Senate Bill modified the definition of "operator" to include
independent contractors performing services or construction at a
mine. This was intended to permit enforcement of the Act against
such independent contractors, and to permit the assessment of
penalties, the issuance of withdrawal orders, and the imposition of
civil and criminal sanctions against such contractors who may have
a continuing presence at the mine.
S. Rep. No. 95-461, 95th Cong. 1st Sess. 37;
added).

Legis. Hist. at 1315 (emphasis

After passage of the Mine Act but prior to its effective date, the U.S.
Court of Appeals for the District of Columbia Circuit issued its decision in the
appeal of the district court's decision in ABC v. Morton, supra, interpreting
the Coal Act's definition of "operator". ABC v. Andrus, 581F.2d853 (D.C. Cir.
1978). Largely guided by the Fourth Circuit's decision in BCOA v. Secretary,
the D.C. Circuit held that "an independent construction company, which operates,
controls, or supervises excavation work on shafts, slopes, or tunnels to be used
in the work of extracting coal from a coal mine is an 'operator of a coal mine'
within the meaning and purposes of" the Coal Act. 581 F.2d at 862 (emphasis
added)(footnote omitted). Notable in its decision is the court's discussion of
the familiar rule of statutory construction, ejusdem generis. 1 Applying this
1

The maxim ejusdem generis is described as follows:
Where general words follow specific words in an
enumeration describing the legal subject, the general
words are construed to embrace only objects similar in
nature to those objects enumerated by the preceding
specific words. (citations and footnote omitted).

1911

rule, the court concluded that the general phrase "other person" in the
definition of "operator" referred to "other persons of the same class as those
enumerated by the specific words. Thus, the other persons must be similar in
nature to owners and lessees." 581 F.2d at 862 (footnote omitted).
Importantly, this same interpretative principle has guided the two courts
of appeals that have construed the Mine Act's amended definition of "operator."
In National Industrial Sand Ass'n v. Marshall, 601 F.2d 689 (3d Cir. 1979)
( "NISA"), the court was faced with a challenge to miner training regulations
promulgated by the Secretary of Labor. In the course of its decision the court
addressed the proper interpretation to be given to the definition's inclusion
of "independent contractor(s] performing services or construction at such mine."
The court stated:
The reference made in the statute only to independent contractors who
"perform(] services or construction" may be understood as indicating •••
that not all independent contractors are to be considered operators.
There may be a point, at least, at which an independent contractor's
contact with a mine is so infrequent or de minimis that it would be
difficult to conclude that services were being performed. Such a reading
of the statute is given color by the fact that other persons deemed
operators must "operate(], control(], or supervise[]" a mine. Designation
of such other persons as operators thus requires substantial participation
in the running of the mine; the statutory text may be taken to suggest
that a similar degree of involvement in mining activities is required of
independent contractors before they are designated as operators.
601 F. 2d at 701 (emphasis added) (footnote omitted).
As support for its
conclusion, the Third Circuit quoted the D. c. Circuit's discussion of the
doctrine of ejusdem generis, noting that the rationale of ABC v. Andrus "also
sheds light on the 'independent contractor' phrase in the definition of operator
under the Mine Act." 601 F.2d at 701-02 n. 42.
The Fourth Circuit thereafter completed the case law circle concerning the
interpretation of "operator'' with the issuance of its decision in Old Dominion
Power Co. v. Donovan, 722 F.2d 92 (4th Cir. 1985). In Old Dominion an employee
of an electric utility was electrocuted while on a service call to an electrical
substation owned by the mine operator and located on mine property.
The
Secretary charged Old Dominion with failure to comply with a mandatory mine
safety standard prohibiting working on energized high-voltage lines. Rejecting
Old Dominion's argument that it was not a mine "operator", the Commission upheld
the Secretary's authority to proceed against Old Dominion under the Mine Act on
the basis that Old Dominion was an independent contractor performing services
at a mine and therefore fell within the Act's def ini ti on of "operator." On
appeal, however, the Fourth Circuit reversed the Commission and in doing so
reviewed the extensive legislative and judicial history summarized above and set
forth a framework for analysis of the independent contractor issue before us.

2A Sutherland, supra, at §47.17.

1912

The court found that the legislative history, including the reference to
its previous decision in BCOA v. Secretary:
make[s] clear Congress' intent to define as "operators" only those
independent contractors who are engaged in mine construction or the
extraction process, and who have a "continuing presence at the mine.
772 F.2d at 97 (emphasis added). The court further noted the Third Circuit's
holding in NISA v. Marshall, supra, that designation of independent contractors
as "operators" "requires substantial participation in the running of the mine"
Id.
Importantly,
the court rejected the claim that
by the contractors.
deference must be accorded the Secretary's view of whether a contractor is an
operator because of the inconsistent positions that have been expressed by the
Secretary on the independent contractor issue. Id. 2 See Natural Resources
Defense Counsel v. E.P.A., 790 F.2d 289,290 (3d Cir. 1986).

2

The court traced in detail the Secretary's comments accompanying the
proposal of criteria to be used in identifying independent contractors as
"operators". 772 F.2d at 97-98 n.6; 44 Fed Reg. 47,746-53 (1979). The court
noted the Secretary's stated agreement with the NISA decision that not all
contractors are appropriately cited as "operators"; rather a contractor's
"substantial participation in the running of the mine" is required. The court
referenced the Secretary's reliance on a contractor's performance of "major work"
at a mine as a basis for deeming the contractor an "operator", which work
includes "extraction and production, construction of cleaning plants and sinking
of shafts and slopes." Id., quoting 44 Fed Reg. at 47, 747-48. The court quoted
the Secretary's statement that "it is improbable that independent contractors
performing most repair or general maintenance work would have effective control
over an area of the mine."
Id. (emphasis by the court).
The court also
emphasized the Secretary's view that a "continuing presence" at a mine by a
contractor is important to its status as an "operator": "[A]n independent
contractor's regular, essentially uninterrupted presence at a mine while
performing work is related to the contractor's ability to effectively control
an area of the mine". Id., quoting 44 Fed. Reg. at 47, 748 (emphasis by the
court).
Based on its review of the history of the Secretary's interpretation of
the definition of "operator", the Fourth Circuit concluded:
Although MSHA retreated from its proposed criteria in the final
rule, it nowhere stated in the preamble to the final rule that its
earlier construction of the legislative history and case law had
been wrong. The unequivocal explication of the history accompanying
the proposed rule thus remains MSHA's principal pronouncement on the
history of [section] 3(d), and further confirms our conclusion that
Congress intended to define as "operators" only those independent
contractors who are engaged in mine construction or extraction and
who have a "continuing presence" at the mine.
772 F.2d at 97-98 n.6 (emphasis added).

1913

Applying these principles to the facts before it, the Fourth Circuit
concluded that Old Dominion is not an "operator" under the Mine Act, but is
appropriately regulated under the Occupational Safety and Health Act of 1970,
29 U.S.C. § 651 et seq, (1982). 772 F.2d at 96. The court observed that "Old
Dominion's only contact with the mine is the inspection, maintenance, and
It pointed out that the utility's
monthly reading of a meter , , •. " Id.
employees "perform no activities or functions on mine property which they do not
perform elsewhere." Id.
It emphasized that "Old Dominion's employees are
otherwise totally regulated by OSHA", and that "MSHA seeks to regulate those few
moments every month when electric utility workers read or maintain meters on
mine property". Id. The court noted that Old Dominion's employees "hardly, if
ever, come into co_ntact with the hazards of mining" (id.), and that the
utility's "contacts are rare and remote from the mine construction or extraction
process,"
772 F.2d at 97.
In sum, the court concluded that because Old
Dominion did not have a "continuing presence" at the mine and did not
"substantially participate" in the running of the mine, it was not a mine
"operator" within the meaning of section 3 ( d) of the Mine Act. Id.
Applying this extensive background and the Fourth Circuit's Old Dominion
decisional framework to the record before us, the conclusion that Otis Elevator
Company is not a mine "operator" is likewise compelled. Although the Secretary
and the majority here attempt to justify their contrary conclusion by
emphasizing factual distinctions between the nature of the work performed by
Otis and that performed by Old Dominion, in all controlling legal respects the
cases are the same. Indeed, the essential basis for the Secretary's arguments
for finding Otis to be an "operator" might best be understood when viewed in the
light of her disagreement with and call for Commission rejection of the Fourth
Circuit's decision in Old Dominion. 3
It is clear that Otis is not the type of independent construction
contractor that was involved in the long-running dispute under the 1969 Coal
Act as to whether such contractors were "operators", Otis is not involved in
the building of surface facilities such as "preparation plants, tipples,
conveyor equipment, storage silos, bath houses, office buildings, power lines,
roads, drag lines, and shovels," BCOA v. Secretary, 547 F.2d at 243. Nor is
Otis involved in the construction of ''underground facilities, such as shafts,
3

Among her arguments, the Secretary asserts that liability can ipso facto
be imposed on Otis simply because Otis provides services at a mine.
The
Secretary asserts: "Section 3(d) provides quite simply that if the contractor
'performs services***' it is covered. This language is unambiguous." Sec. Br.
at 24. She further argues:
To the extent that the Fourth Circuit may have intended the
interpretation ... as urged by Otis, the Secretary disagrees and
urges the Commission in performing its role as an adjudicative body
with particular expertise under the Mine Act to reject that
interpretation, notwithstanding what may be the position of the
panel that decided Old Dominion.
Id. at n.9.

1914

slopes, and tunnels." Id. In fact, it has never been argued in this case that
the inspection and maintenance work performed by Otis at the mine site
constitutes "construction" work.
9 FMSHRC at 1935.
Therefore, the sole
possible basis for finding Otis to be an "operator" is whether Otis performs
"services'' at the mine within the meaning of the Mine Act.
The legislative history set forth above indicates that, apart from
construction contractors, Congress intended to include as "operators" those
contractors who are "engaged in the extraction process for the benefit of the
owner or lessee of the property" and who "have a continuing presence at the
mine." Legis. Hist. at 602, 1315 (emphasis added). Accord, Old Dominion Power
Co., 772 F. 2d at 97. The Third Circuit and the Fourth Circuit, in NISA v.
Marshall and Old Dominion, respectively, further explain that a contractor
performing services can be-considered an "operator" only if it "substantial[lyJ
participat(es] in the running of the mine." 601 F.2d at 701; 772 F.2d at 97.
Thus, whether Otis is an "operator" depends on whether the work that Otis
performs at the mine is such that Otis can fairly be characterized as: 1) being
engaged in the extraction process; 2) having a continuing presence at the mine;
and 3) substantially participating in the mine's operation. On the basis of the
record before us, it is clear that Otis meets none of these tests.
Although Otis is an independent contractor, it is not engaged in the
extraction process. It is not uncommon in the mining industry for a mine owner
to hire a contractor to run its extraction operations. That, however, is not
the case here.
Pennsylvania Mines Corporation ( "PMC"), the owner of the
underground coal mine, itself engages in the extraction and processing of its
coal. If PMC had hired a contractor to mine its coal, then that contractor
would be engaged in the extraction process and would be an "operator" within the
meaning of the definition.
Otis was not hired by PMC to take part in the
extraction process. Otis' contract with PMC was for a far more limited and
specialized role, aptly summarized by the judge as follows:
As a practical matter,
[Otis' responsibilities under the
contract] amounted to Otis conducting weekly inspections of the
eleyators, performing bi-monthly safety tests and responding to
trouble calls and repairing the elevators on an as-required basis.
9 FMSHRC at 1934.
Although it is true, as the Secretary and the majority
assert, that an elevator used to transport miners underground is an integral
component of a mine's physical plant, it does not follow that simply because an
outside contractor is called to service such equipment the contractor therefore
becomes "engaged in the extraction process." Indeed, if repair of equipment
important to a mining operation were to be the controlling criterion for
determining "operator" status, the result in Old Dominion would have been
different, for not even the elevators that Otis was servicing, nor the rest of
the mine's electrical equipment for that matter, could operate properly without
safe and effective transmission of electricity. To conclude that the nature of
the service that Otis provided here is sufficient to thrust it into the mine's
"extraction process" is to dilute that requirement for "operator" status beyond
any recognizable limit.
A similar dilution occurs if, on the facts before us, Otis is found to

have a "continuing presence at the mine." Otis' service contract called for it
to conduct weekly inspections, to perform safety tests every two months, and to
perform repairs on an as-needed basis.
The Secretary's proof as to Otis'
presence at the mine pursuant to the contract falls far short of establishing
a "continuing presence." The most that the Secretary can point to in this
regard is that the performance of the weekly elevator inspections took an Otis
employee, on average, only one and one-half hours per week. Tr.43-44; Sec. Br.
at 3; 9 FMSHRC at 1935. The Secretary's witness also alluded to a hoist rope
replacement operation that would take four or five Otis employees 20 hours to
complete, but the witness did not know how often Otis performed this task. Tr.
44-45. Including unspecified repair calls, the witness stated: "I would say
counting all the call backs and stuff like this, I wouldn't doubt that you can
say they was there weekly." Tr. at 25.
This evidence cannot be found to establish that Otis had a "continuing
presence at the mine" within the meaning of the legislative history and the case
law.
It certainly does not meet the "regular, essentially uninterrupted
presence at a mine" formulation of "continuing presence" previously expressed
by the Secretary and referenced by the Fourth Circuit in Old Dominion. 772 F.2d
at 98-99 n.6 (quoting 44 Fed Reg. at 47,748).
The third element entering into the determination of whether an
independent contractor is an "operator" is whether the contractor "substantially
participates in the running of the mine." NISA, 601 F.2d at 701; Old Dominion,
772 F.2d at 92. What has been set forth above is generally sufficient to also
overcome any claim that Otis' work under the elevator service contract
"substantially" involved Otis in the running of the mine.
In this regard,
however, it is important to also note that even the administrative law judge
found that Otis did not "control any area of the mine." 9 FMSHRC at 1935. This
finding by the judge is in accordance with the terms of the governing contract.
Gov. Ex. 1 at 3. Certainly, where a contractor's only duty is to periodically
service mine elevators and the contractor does not control any area of the mine,
it cannot be said that such contractor "substantially participates in the
running of the mine."
In sum, the evidence establishes that although Otis performs services at
a mine site, neither the nature of its work nor the extent of its presence at
the mine is sufficient to justify its classification as a "mine operator." To
conclude otherwise, I believe, is to ignore applicable judicial precedent. To
do so might be appropriate if that precedent was obviously flawed or
fundamentally misguided. Here, however, the applicable case law is largely the
product of a court of appeals intimately involved in the historical development
of the issue before us. As Otis correctly observes, the "Fourth Circuit is no
bit player in the development of the law concerning who is and who is not an
operator as the term is used in the [Mine] Act." Otis Reply Br. at 8. Although
this case arises in the Third Circuit,
that court's decision in NISA v.
Marshall adhering to the rationale of the Fourth Circuit's BCOA decision, and
the Fourth Circuit's approving cross-reference to the NISA decision in Old
Dominion, indicate a common judicial interpretation of the issue before us
warranting adherence by the Commission.

1916

Accordingly, I conclude that Otis Elevator Company is not a mine operator
and I dissent from the majority's affirmance of the judge's decision.

~uL
JameSA~astowka
Commissioner

Distribution
Vicki Shteir-Dunn, Esq.
Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
W. Scott Railton, Esq.
Gary L. Melampy, Esq.
Reed, Smith, Shaw & HcClay
1150 Connecticut Ave., N.W.
Suite 900
Washington, D.C. 20036
Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1917

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

October 27, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos. PENN 87-25-R
PENN 87-26-R
PENN 87-69
PENN 87-86

OTIS ELEVATOR COMPANY

BEFORE:

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

DECISION

BY:

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

In this consolidated contest and civil penalty proceeding arising
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seg. (1982)("Mine Act" or "Act"), we cire asked to decide whether Otis
Elevator Company ("Otis") is the type of "independent contractor" that
falls within the definition of "operator" as set forth in the Mine Act
and, if so, whether Otis was properly cited for two violations· of 30
C.F.R. § 77.501. Commission Administrative Law Judge William Fauver
found that Otis was an "independent contractor" and, thus, an "operator"
under the Act and sustained both citations. 9 FMSHRC 2038 (December
1987). We granted Otis' petition for discretionary review and
consolidated this case, for purposes of briefing and oral argument, with
Otis Elevator Company, Docket No. PENN 87-262 ("Otis I"), which also
presented as its primary issue Otis' independent contractor status under
the Mine Act. In light of our decision issued separately this date in
Otis I, we affirm the judge's finding that Otis is an operator under the
Mine Act, and we also affirm the judge's finding of the two violations
of section 77.501.
The Cambria Slope Mine No. 33, an underground coal mine, is owned
and operated by BethEnergy Mines, a subsidiary of Bethlehem Steel
Corporation ("Bethlehem"). Bethlehem maintains an elevator service
contract with Otis to perform maintenance and service on the one

1918

elevator located at the mine. The elevator is located in the portal
building of the mine, in which the miners' changing and shower rooms and
the company ·off ices are also located. The elevator shaft is 800 feet
deep, with openings at the two working seams of the mine.
The primary function of the elevator is to transport the work
force of approximately 200 miners in and out of the mine both at shift
changes and during shifts, as needed. The elevator holds 31 miners and
takes two or three minutes for each round trip. Unavailability of the
elevator would result in a work delay of about two and one-half hours
each shift and a decrease of one-third in the mine's coal production of
three thousand clean tons per shift. The elevator also serves as a
primary escapeway for some sections, and as an alternate escapeway for
others.
The elevator service contract between Bethlehem and Otis became
effective August 26, 1981, and under it Otis was paid $1,300 per month,
adjustable annually. Exhibit G-8. The contract provided that Otis
would maintain the mine elevator, its parts and equipment, in safe
operating condition and provide weekly inspection, maintenance and "on
call" emergency repair service. Mine Superintendent Merrits estimated
that the weekly maintenance calls involved up to two hours of work if no
special problems were encountered and that, during the prior year, an
average of two to four additional service calls were made monthly, each
taking from one and one-half to three hours. The maximum time spent by
Otis employees at the mine was about 20 hours per month. Additionally,
every 60 days, Otis performed a required no-load safety test on the
elevator.
MSHA penalty assessment reports identify Otis as an operator under
the Mine Act, and list previous violations for which civil penalties
were paid by Otis when cited for violations of MSHA mandatory safety
standards at the Cambria Slope and other mines. Further, Otis had filed
and obtained an MSHA Identification Number as an independent contractor
pursuant to 30 C.F.R. Part 45.
On October 27, 1986, Leroy Niehenke, an inspector of the
Department of Labor's Mine Safety and Health Administration ("MSHA"),
observed Otis employee Gordon Sutter disconnecting electrical leads on
the motor of the elevator door at a surf ace work area of the Cambria
Slope No. 33 Mine. In response to Niehenke's questions, Sutter stated
that he was not a "qualified person" for performance of electrical work
within the meaning of MSHA electrical regulations and was not being
directly supervised by a person so qualified. Tr. 151. Niehenke
thereupon issued a citation for a violation of the "qualified person"
requirements set out in the first sentence of 30 C.F.R.§ 77.501 and
checked the violation as being of a significant and substantial
nature. l/ Five minutes later, Niehenke issued a second citation,

lf

Section 77.501 provides:
No electrical work shall be performed on
electric distribution circuits or equipment, except

1919

citing a violation under the second sentence of section 77.501, alleging
that, while performing electrical work on the motor of the elevator
door, Sutter and another Otis employee had locked out the main power
disconnect located in the surface area of the elevator shaft but had
failed to tag the device as required by the standard. The switch on the
power line had been "locked out" by a padlock placed on the switch by
the Otis elevator serviceman, making it impossible for anyone to turn on
the electric power until the padlock was removed. Otis contested the
citations, the S~cretary proposed civil penalties for the alleged
violations, and the various proceedings were consolidated and proceeded
to hearing before Judge Fauver.
Niehenke, MSHA electrical engineer Ron Gossard, and MSHA supervisor Willis Cupp testified that on numerous occasions since 1980 Otis
representatives had been informed of the qualification requirements for
performing electrical work under section 77.501. Gossard stated that a
qualified person would not be required to sup~rvise Otis employees with
respect to their specialized elevator electrical work, but that a
qualified person would have to be available to insure that all
electrical safety precautions were otherwise properly observed for the
safety of the miners. Gossard further indicated that the qualified
supervisor would not necessarily need to be physically present but only
to be available on the property. Gossard also suggested that Otis could
have filed a petition for modification pursuant to section lOl(c) of the
Mine Act, 30 U.S.C. § 811(c), to obtain simplification or modification
of the procedures and of the requirements for becoming "qualified" as an
electrician under section 77.501 since those procedures, requirements
and examinations do not specifically apply to an elevator mechanic's
work.
Cupp testified that an MSHA policy memorandum of October 29, 1979,
requires that, in order to assure compliance with MSHA regulations, work
performed by manufacturers' service representatives who are not
by a qualified person or by a person trained to
.perform electrical work and to maintain electrical
equipment under the direct supervision of a
qualified person. Disconnecting devices shall be
locked out and suitably tagged by the persons who
perform such work, except that in cases where
locking out is not possible, such devices shall be
opened and suitably tagged by such persons. Locks
or tags shall be removed only by the persons who
installed them or, if such persons are unavailable,
by persons authorized by the operator or his agent.
The term, "qualified person," is defined in section 77.501-1 as:

A qualified person within the meaning of
§ 77.501 is an individual who meets the requirements
of § 77.103.
In turn, section 77.103 sets forth an extensive list of requirements
necessary for obtaining qualified person status.

1920

qualified persons must be examined and tested, as necessary, by a
qualified person before the machine or equipment is placed in service.
Gordon Sutter, an Otis mechanic's helper, described in detail the
specialized electrical and safety training courses and experience
required for all Otis elevator mechanics. James Beattie, Otis District
Maintenance Supervisor, testified at length as to the particular
complexities of elevator repair and maintenance that require qualifications beyond those required for mine electricians. He stated that
supervision by a qualified mine electrician was not only unnecessary but
could be unsafe if an unqualified person supervised an elevator
mechanic's specialized work. Tr. 472-499.
Before the judge, Otis argued that it was not engaged in mine
construction or extraction with a continuing presence at the mine, and
was not, therefore, an "operator" subject to section 3(d) of the Mine
Act under the controlling precedent of Old Dominion Power Company v.
Donovan, 772 F.2d 92 (4th Cir. 1983). Further, as an elevator service
company, Otis contended it was regulated under the Occupational Safety
and Health Act of 1970, 29 U.S.C. § 651 et seg. (1982)(the "OSHAct"),
and was not subject to MSHA regulation. With respect to the alleged
violations of section 77.501, Otis argued that its compliance with the
mandatory standard would create a "greater hazard" or a "diminution of
safety" in that supervision of Otis' specially trained elevator
mechanics by MSHA qualified mine electricians, untrained in elevator
repairs, could result in incorrect or dangerous work, thereby putting
both Otis employees and miners at risk.
In his decision, the judge rejected Otis' jurisdictional
arguments, relying on the definition of "independent contractor" adopted
by the Secretary in 30 C.F.R. Part 45 as including "a business that
contracts to perform services or construction at a mine." 'J:./ The judge
noted that the Secretary's preamble to the final rule in Part 45
included as "independent contractors," those performing "short-term" and
"intermittent" work of "every type," including "minor repairs." 45 Fed.
Reg. at 44494 (July 1, 1980). Finding further that the mine elevator
was a "critical part of the mine," and that Otis employees have a
"substantial recurring presence at the mine" performing "crucial safety
repairs on a key facility of the mine," the judge distinguished this
case from Old Dominion, supra, and held that Otis was an independent
contractor as defined by the Secretary and, hence, an operator under the
Act. 9 FMSHRC at 2040-41.
As to the alleged violation of the "qualified person" requirements
in section 75.501, the judge rejected Otis' defense that compliance with

'J:./

30 C.F.R. § 45.2(c) states in relevant part:
"Independent contractor" means any person,
partnership, corporation, subsidiary of a
corporation, firm, association or other organization
that contracts to perform services or construction
at a mine ....

1921

the standard would have created a "greater hazard" or a "diminution of
safety." Relying on the Commission's decisions in Penn Allegh Coal Co.,
3 FMSHRC 1394 (June 1981) and Sewell Coal Co., 5 FMSHRC 2026, 2029
(December 1983), the judge held that Otis' defense was raised in the
wrong forum, since the "greater hazard" defense is not permissible in
enforcement proceedings where the operator has not first filed a
petition for modification under section lOl(c) of the Mine Act.
9 FMSHRC at 2042-43. Nor, he found, did the "gravity of circumstances
and presence of danger" exception carved out in Sewell apply under the
facts of this case, since Otis had not demonstrated that compliance with
the standard would result in a safety or health emergency to mine
personnel. 9 FMSHRC at 2043. J/ Having rejected Otis' affirmative
defense, the judge concluded that Otis had violated the standard as
charged. He also affirmed the inspector's significant and substantial
finding and assessed a civil penalty of $300 for the violation. He
affirmed the second citation for failure to properly tag the disconnect
device, found the citation to be technical, and assessed a penalty
of $20.
On review, Otis contends that the judge erred in concluding that
it is an "operator" as defined in the.Mine Act, that he erred in
rejecting Otis' affirmative defense with respect to the first citation,
and that substantial evidence does not support his finding that the
violation was significant and substantial in nature. ~/

Concerning the jurisdictional issue, we have concluded in Otis I
that Otis, by virtue of the services provided and its continuing
presence at the mine site, falls within the definition of "operator" set
forth in the Mine Act and is, therefore, subject to its jurisdiction.
See slip op. at 5-8. The operative facts in the two cases are
strikingly similar and the conclusion that we reached in Otis I obtains
with equal validity here.
As in Otis I, it is evident here that Otis was functioning as an
independent contractor on property that plainly is a mine within the
Act's scope. Slip op. at 4-8. In Otis I, we held that Otis' continuing
maintenance and service work on a mine elevator used to transport miners
in and out of the mine bore a close proximity to, and relationship with,
the overall extraction process. See slip op. at 7. We reach the same
conclusion here. We further conclude as in Otis I, that Otis' contacts
'}_/
In Sewell, the Commission stated that "emergency situations may
arise where the gravity of circumstances and presence of danger may
require an immediate response by the operator or its employees,
necessitating a departure from the terms of a mandatory standard without
first resorting to the Act's modification procedures." 5 FMSHRC at 2029
n. 2.
~/

As to the second violation, Otis agrees on review that its
employees had failed to place the tag as required, and argues only that
MSHA lacked jurisdiction to cite Otis as an operator. In light of our
holding on that issue, we affirm the judge's finding of violation with
respect to the second citation.

1922

with the Cambria Slope mine were not so rare, infrequent, and attenuated
as to bring this case within the holding of Old Dominion, supra. See
slip op. at 7.· We also find that Otis' activities here were not
properly subject to OSHAct jurisdiction. See slip op. at 7-8. In sum,
and for the reasons explained in Otis I, we conclude that Otis had a
continuing presence at the Cambria Slope mine performing a function
substantially related to the extraction process and, therefore, was an
operator within the meaning of the Mine Act. Otis is therefore subject
to the Mine Act.
With respect to the first alleged violation of section 77.501,
Otis raises, as it did before the judge, the affirmative defense of
"diminution of safety," arguing that application of section 77.501 would
actually increase the risk of danger and result in a diminution of
safety to both Otis' employees and the miners. Otis further argues that
requiring its employees to meet the "qualified person" criteria set out
in section 77.501 is unnecessarily and unduly burdensome in that its
employees are well qualified by virtue of Otis' own rigorous training
requirements and that, in other settings, these employees must comply
with regulations under the OSHAct.
The record in this case leaves little doubt that, prior to being
cited for the violations, Otis had long been on notice that MSHA
regarded it as subject to the provisions of section 77.501 and had been
advised of the requirements for compliance. Rather than seeking relief
through the modification procedures of section lOl(c) of the Act or
achieving compliance through the alternative procedures suggested by
MSHA, Otis waited until it was cited for non-compliance and then alleged
for the first time the defense of diminution of safety as an excuse for
its non-compliance.
In Penn Allegh, supra, the Commission held that questions of
diminution of safety are to be first pursued and resolved in
modification proceedings and cannot be raised in enforcement
proceedings, as Otis has attempted to do here. 3 FMSHRC at 1398, 1400.
As noted by the judge in his decision, were we to accept Otis' argument,
we would be concluding that an operator, not the Secretary, may
determine when compliance with a mandatory standard is necessary.
Accordingly, we hold that the diminution of safety defense asserted by
Otis was improperly raised in this enforcement proceeding.
Moreover, even if that defense were properly raised, we are not
convinced that the record of this case establishes that application of
the standard would result in a diminution of safety. Otis has described
a number of hypothetical scenarios involving interference with trained
Otis technicians by supervisors unskilled in elevator work, but has
failed to demonstrate that application of section 77.501 actually has
resulted in a diminution of safety to miners or that it will, in fact,
do so. Conversely, we find no basis to rebut the presumption that Otis'
mechanics, working with electrical components in both the surface and
underground areas of the mine, and admittedly untrained in and
unfamiliar with MSHA regulations, may adversely affect the safety of
miners.

1923

Finally, with respect to Otis' argument that MSHA's regulations
are unnecessarily burdensome, we observe that compliance with the Mine
Act is an essential component of doing business in a mine and that
relief from compliance is only available through a section lOl(c)
petition for modification.
Accordingly, and for the foregoing reasons, we affirm the judge's
decision. 21

L. Clair Nelson, Commissioner

21

In its petition for discretionary review, Otis challenged the
judge's finding that the first violation was of a significant and
substantial nature but did not discuss the issue in its briefs or at
oral argument. Notwithstanding this virtual waiver of the issue, we
have examined the record with respect to that finding, and we conclude
that the judge's findings in this regard are supported by substantial
evidence.

1924

Commissioner Lastowka, dissenting:
In all material respects, this case and Otis Elevator Co., FMSHRC Docket
No. PENN 86-262 ("Otis I"), issued this date, are the same. As in Otis I, the
record in this case establishes that Otis Elevator Company: 1) is not engaged
in either mine construction or the coal extraction process; 2) does not have a
"continuing presence" at the mine; and 3) does not "substantially participate
in the running of the mine."
Rather, as the record in this case illustrates,
Otis' function and presence at the mine is extremely limited. In fact, the
elevator inspection and repair service Otis provides at the mine constitutes only
one stop on a general service route that "includes elevators in a Sears and
Roebuck store, an off ice building, two banks and a hospital." 9 FMSHRC 2038, at
2039 (ALJ).
Therefore, for the reasons more fully set forth in my dissenting op1n1on
in Otis I, I dissent from the majority's affirmance of the administrative law
judge's conclusion that Otis Elevator Company is a mine operator.

1925

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

October 27, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos.

WEST 87-211-R
WEST 87-224-R

UTAH POWER & LIGHT COMPANY

BEFORE:

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

DECISION

BY THE COMMISSION:
This proceeding ar1s1ng under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act" or "Act"),
involves alleged violations of 30 C.F.R. § 75.1704 by Utah Power & Light
Company ("UP&L") at its Wilberg Mine located in Orangeville, Utah. l/

lf

Section 75.1704 essentially restates section 317(f)(l) of the Mine
Act, 30 U.S.C. § 877(f)(l), and provides:
Escapeways.
Except as provided in §§ 75.1705 and 75.1706, at
least two separate and distinct travelable
passageways which are maintained to insure passage
at all times of any person, including disabled
persons, and which are to be designated as
escapeways, at least one of which is ventilated with
intake air, shall be provided from each working
section continuous to the surface escape drift
opening, or continuous to the escape shaft or slope
facilities to the surface, as appropriate, and shall
be maintained in safe condition and properly marked.
Mine openings shall be adequately protected to

1926

The primary issue presented is whether the Secretary of Labor may cite a
violation of section 75.1704 for failure to comply with the six foot by
five foot dimension criteria for escapeways contained in 30 C.F.R.
§ 75.1704-l(a) irrespective of the passability of the escapeways in
question. 2/ Commission Administrative Law Judge John J. Morris concluded that the criteria set forth in section 75.1704-l(a) were not
mandatory requirements and that the proper test for the adequacy of
escapeways is, as provided in section 75.1704, whether they are
"maintained to insure passage at all times of any person, including
disabled persons .•.. " 10 FMSHRC 71 (January 1988)(ALJ). Accordingly,
the judge dismissed a citation issued to UP&L in Docket No.
WEST 87-224-R, on the basis that the parties had stipulated that, apart
from a failure to comply with the criteria, the cited portion of the
escapeway was fully passable by all persons, including disabled persons.
The judge also found that the cited portion of the escapeway involved in
Docket No. WEST 87-211-R was in violation of section 75.1704 on other
grounds, but determined that the violation did not result from UP&L's
unwarrantable failure to comply with the standard. We granted the
Secretary's petition for discretionary review, which challenges the
judge's findings that no violation occurred in Docket No. WEST 87-224-R
and that there was no unwarrantable failure in Docket No. WEST 87-211-R.
For the reasons that follow, we affirm.
On June 17, 1987, Ted E. Farmer, an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA"), and his
supervisor, William Ponceroff, inspected a designated escapeway in the
prevent the entrance into the underground area of
the mine of surface fires, fumes, smoke, and
floodwater. Escape facilities approved by the
Secretary or his authorized representative, properly
maintained and frequently tested, shall be present
at or in each escape shaft or slope to allow all
persons, including disabled persons, to escape
quickly to the surface in the event of an emergency.
~/

30 C.F.R. § 75.1704-1 provides in pertinent part:
Escapeways and escape facilities.
This section sets out criteria by which District
Managers will be guided in approving escapeways and
escape facilities. Escapeways ... that do not meet
these criteria may be approved providing the
operator can satisfy the District Manager that such
escapeways ... will enable miners to escape quickly
to the surface in the event of an emergency.
(a) Except in situations where the height of
the coalbed is less than 5 feet, escapeways should
be maintained at a height of at least 5 feet
(excluding necessary roof support) and the travelway
in such escapeway should be maintained at a width of
at least 6 feet ..•.

1927

3rd Right Section of the Wilberg Mine. Farmer noted that a water pipe,
six inches in diameter, was angled across the escapeway and restricted
the travelway at that point to a width of 43 inches. The inspector also
noted the presence of an off set two feet higher than the level of the
walkway running along one rib, an accumulation of loose coal and rib
sloughage on the bottom, and an extension of a rib "toe" into the
walkway that restricted the width of the walkway to four feet. He also
observed two miners were in the area at the time, working on removing
the accumulation. Based on his observations, Inspector Farmer issued to
UP&L an order of withdrawal pursuant to section 104(d)(l) of the Mine
Act, 30 U.S.C. § 814(d)(l), alleging a violation of section 75.1704 that
he found to be of a significant and substantial nature and that resulted
from UP&L's unwarrantable failure to comply with section 75.1704. This
withdrawal order is the subject of Docket No. WEST 87-211-R.
On July 20, 1987, MSHA Inspector Richard Jones inspected another
portion of the same escapeway. Inspector Jones observed an "overcast"
in the escapeway and found the escapeway to be from four to four and a
half feet high. 3/ Although the inspector did not believe that the
escapeway was impassable, the height of the escapeway near the overcast
did not meet the criteria of section 75.1704-1. Accordingly, he issued
to UP&L a citation pursuant to section 104(a) of the Act alleging a
violation of section 75.1704-l(a). ~/ This citation is the subject of
Docket No. WEST 87-224-R.
In his decision, the judge characterized the principal issue as
"whether the 6 foot by 5 foot criteria in [section] 75.1704-1 may be
enforced without regard to functional passability in an escapeway." 10
FMSHRC at 71. ~/ The judge noted that the Secretary's uncontroverted
evidence showed that UP&L's escapeways, in some instances, were less
than five feet high or six feet wide. The Secretary's basic contention
was that the operator was required under section 75.1704-l(a) to seek
approval from the appropriate MSHA district manager for maintenance of
escapeways with non-complying dimensions. 10 FMSHRC at 72.
The judge rejected the Secretary's position and determined:
When Congress enacted the escapeway regulations
it established a functional test. The statutory
}_/
An overcast is "an enclosed airway to permit one air current to
pass over another one without interruption." Bureau of Mines, U.S.
Dep't of Interior, Dictionary of Mining, Mineral and Related Terms 780
(1968).
~/

The citation was subsequently modified to allege a violation of
section 75.1704.

~/

At the hearing, the parties stipulated that the term "passability"
would be used as an abbreviated expression for the phrase in section
75.1704, "maintained to insure passage at all times of any person,
including disabled persons." Tr. 11. We adopt the same shorthand
expression for purposes of this decision.

1928

mandate, now embodied in the regulation, is that
escapeways must be "maintained to insure passage at
all times of any person, including disabled
persons •••• "

*

*

*

In the instant case the Congressional mandate,
as now embodied in the regulation, directly
addresses the precise issue in question. Notably,
Congress did not establish specific size requirements for escapeways as it has done in other
contexts ••••

*

*

*

••• Congress clearly knew how to mandate specific
linear foot requirements when it wished to do so.
Its failure to do so here is a confirmation of its
intent to require a functional test as expressed in
the statutory language.
10 FMSHRC at 73-74. The judge concluded that the language of section
75.1704 is clear on its face and that MSHA cannot, at least without the
benefit of further rulemaking, ignore that regulation's passability test
and substitute in its place the linear foot criteria for height and
width of escapeways. 10 FMSHRC at 74. The judge then considered UP&L's
contests as to each of the alleged violations.
In Docket No. WEST 87-211-R, the judge found that the
uncontroverted evidence established that the water pipe across the
escapeway reduced the escapeway to a width of 43 inches and that loose
coal and rib sloughage also restricted the passability of the escapeway.
The judge found that these facts established a violation of section
75.1704 and dismissed UP&L's contest of the withdrawal order. As to the
inspector's unwarrantable failure finding, however, the judge concluded
that the operator's conduct constituted ordinary negligence but not the
type of aggravated conduct constituting unwarrantable failure as set
forth by the Commission in Emery Mining Corp., 9 FMSHRC 1997 (December
1987) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 2004 (December 1987).
10 FMSHRC at 85. Finally, in Docket No. WEST 87-224-R, the judge
sustained UP&L's contest of the section 104(a) citation based upon the
parties' stipulation that the inspector believed that the escapeway in
question was "adequate and fully passable for all persons including
disabled persons." 10 FMSHRC at 85.
The Secretary appealed the judge's finding no violation in WEST
87-224-R and his finding an absence of unwarrantable failure in WEST 87211-R.
On review, the Secretary first contends that the judge erred in
concluding that the criteria of section 75.1704-l(a) are not mandatory
and are unrelated to the "functional passability" of escapeways as set
forth in section 75.1704. St~ting that section 75.1704-l(a) is a

1929

"reasoned and logical implementation" of the statutory mandate embodied
in section 75.1704 to insure passage at all times of any miner,
including disabled persons, the Secretary urges reversal of the judge's
conclusion to the contrary. PDR 10. UP&L asserts that operators have
no legal duty under either section 75.1704 or 75.1704-1 to obtain prior
approval from the Secretary for the escapeways mandated by section
75.1704. UP&L asserts that, as a matter of law, it cannot be held
liable under section 75.1704 solely for its failure to obtain prior
approval for escapeway width and height that do not conform to section
75.1704-l's criteria. Since section 75.1704-l(a) is advisory and
imposes no mandatory duty upon an operator, UP&L argues that the
Secretary's attempt to enforce the provisions of that subsection through
section 75.1704 is an impermissible circumvention of the legally
mandated requirements for rulemaking.
I.

We first consider whether the judge properly found in Docket No.
WEST 87-224-R that UP&L had not violated section 75.1704. Where the
language of a statutory or regulatory provision is clear, the terms of
that provision must be enforced as they are written unless the
legislature or regulator clearly intended the words to have a different
meaning. See Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842-43 (1984);
United States v. Baldridge, 677 F.2d 940, 944 (D.C. Cir. 1982); Phelps
Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1192-93 (9th Cir. 1982). "In
statutory interpretation, the ordinary meaning of words must prevail
where that meaning does not thwart the purpose of the statute or lead to
an absurd result," Emery Mining Corp., 9 FMSHRC 1997, 2001 (December
1987), citing In re Trans Alaska Pipeline Rate Case, 436 U.S. 631
(1978).
We find the language of section 75.1704, as relevant here, plain
and unambiguous. Section 75.1704 provides that escapeways be
"maintained to insure passage at all times of any person, including
disabled persons." Thus, the standard establishes a general functional
test of "passability," as argued here by UP&L and as found by the judge.
Further, section 75.1704 does not by its terms impose upon operators any
obligation to seek the Secretary's prior approval for their escapeways.
In contrast, we note that the third sentence of section 75.1704 requires
that "[e]scape facilities approved by the Secretary ... shall be present
at or in each escape shaft or slope •.•• " (emphasis added). The
Secretary does not argue that the term "escape facilities" in the
standard includes "escapeways." Compare BethEnergy Mines, Inc.,
i.l FMSHRC 1445, 1450 (August 1989) (section 75.1704 requires operator to
provide two designated escapeways from each working section of a mine
pursuant to section 75.1704). The Secretary contends, however, that
what constitutes a "passable" escapeway is open to widely varying
interpretations and that section 75.1704-l(a) was promulgated to
"improve" upon the functional passability standard enunciated in section
75.1704. £/ While development by the Secretary of more specific

£/

Section lOl(a) of the Mine Act, 30 U.S.C. § 8ll(a), grants the
Secretary authority to "develop, promulgate, and revise ... improved

1930

requirements for passability might be a laudable regulatory goal,
section 75.1.704-1 presently fails to achieve that purpose in an
enforceable manner.
The Mine Act sets forth a scheme by which the Secretary's
enforcement agency, MSHA, regulates mine operations. MSHA promulgates,
pursuant to section 101 of the Act, regulations that establish general
and mandatory standards with which all mine operators must comply. See
n. 6, supra. MSHA also requires mine operators to adopt comprehensive
plans addressing specific subjects such as roof control and ventilation.
30 U.S.C. §§ 862(a) and 863(a). These plans must then be submitted to
an MSHA District Manager for approval. Once approved, the plans are
mandatory in the sense that violations of the requirements in the plans
constitute violations of the Act. United Mine Workers of America v.
Dole, 870 F.2d 662, 667 (D.C. Cir. 1989).
The Secretary argues that section 75.1704-1 implements the second
method of enforcement with regard to escapeways and escape facilities.
It "sets out criteria by which District Managers will be guided in
approving escapeways and escape facilities." According to the
Secretary, the language of the regulation contemplates a process by
which MSHA District Managers consider certain criteria in deciding
whether to "approve" escapeways or escape facilities. However, as UP&L
accurately notes, a critical regulatory step is missing. Neither
section 75.1704, section 75.1704-1, nor any other regulation requires
operators to seek the Secretary's approval for escapeways or to
otherwise conform the dimensions of escapeways to five feet in height
and six feet in width. Lacking any such statutory or regulatory
approval requirements, there can be no violation for failure to conform
to the criteria set forth in section 75.1704-l(a) or for failure to seek
a District Manager's approval for noncompliance with those criteria. ZI
The Secretary's argument is undercut also by the use of the term
"should" in the wording of the criteria, a term that normally signals
mandatory health or safety standards for the protection of life and
prevention of injuries in ••• mines."

ZI

The U.S. Court of Appeals for the District of Columbia Circuit has
explained that similar types of criteria may constitute mandatory safety
standards when they afford to miners no less protection than the
statutory standard or the improved mandatory standard from which they
are derived. United Mine Workers of America v. Dole, supra, 870 F.2d at
667-672. However, in Dole the court considered the validity of roof
control plan criteria that implement a statutory and regulatory mandate
requiring operators to submit and District Managers to approve roof
control plans. 870 F.2d at 670. "While mine operators were not per~
required to comply with each and every criterion so that the criteria
were not themselves mandatory standards, if the criteria were actually
incorporated into an approved plan, the operator was bound to comply
with them." 870 F.2d at 670. (emphasis added). Unlike the roof
control criteria at issue in Dole, there is no statutory or regulatory
mandate that individual mine operators submit in advance plans for
escapeways to appropriate MSHA District Managers for approval.

1931

the non-mandatory nature of a regulation. See generally, Jim Walter
Resources, Inc., 3 FMSHRC 2488 (November 1981). The Commission has
emphasized that when assessing the nature of a regulation the essential
question is whether the standard as written imposes a mandatory duty
upon operators. For instance, the Commission has found that even the
inadvertent use of the word "should" instead of "shall" could be
overcome as an indicia of a regulation's non-mandatory nature where the
regulatory history of the standard made clear that the standard imposes
a mandatory duty on mine operators. See Kennecott Minerals Co., Utah
Copper Division, 7 FMSHRC 1328, 1332 (September 1985). The standard at
issue, however, was neither proposed as mandatory nor promulgated with a
mandatory designation. Compare Kennecott Minerals Co., supra. Rather,
as the judge properly observed, the standard simply purports to set
forth criteria by which MSHA's District Managers will be guided in
approving escapeways, without imposing a commensurate mandatory duty on
mine operators to seek such approval. 10 FMSHRC at 23.
If the Secretary desires to require operators to obtain prior
approval for escapeways, MSHA can pursue such a requirement through
formal rulemaking. See~' 30 C.F.R. §§ 75.220 (requiring each mine
operator to develop and follow a roof control plan approved by the
District Manager); 75.316 (requiring each operator to adopt and the
Secretary to approve a ventilation system and methane and dust control
plan). Indeed, subsequent to the events giving rise to this case, the
Secretary initiated a revision of the escapeways standards. On
January 27, 1988, MSHA issued proposed rules governing underground coal
mine ventilation, including amended regulations for escapeways. 53 Fed.
Reg. 2382 (1988). In explaining the proposal, MSHA stated that it
"would establish requirements for escapeways for all miners." Id. at
2408. (emphasis added). The proposed standards would eliminate the
approach presently found in section 75.1704-1 and substitute specific
requirements for escapeways through mandatory standards. Proposed rule
30 C.F.R. § 75.380(a)(4)-(5) states that "escapeways ••• shall be •.•
[m]aintained to at least a height of 5 feet ••• [and] •.• [m]aintained
at least 4 feet wide .... " Id. at 2422.
Finally, the Secretary introduced into evidence a memorandum dated
May 7, 1987, from former MSHA District Manager John W. Barton to subdistrict managers and field office supervisors. The memorandum
instructs MSHA's enforcement personnel then under Barton's supervision
that escapeways must "meet the height and width requirements" of section
75.1704-l(a) and that "[f]ailure to meet the requirements should result
in the issuance of appropriate enforcement action." Gov. Ex. 3. The
judge declined to find that the policy expressed in the Barton
memorandum is binding departmental policy, and we agree.
10 FMSHRC at 74. Although the Commission has previously recognized that
while Secretarial documents may "reflect a genuine interpretation or
general statement of policy whose soundness commands deference and
therefore results in [the Commission] acco~ding it legal effect," it has
declined to do so where the interpretation or policy statement cannot be
squared with the plain language of the standard. King Knob Coal Co.,
3 FMSHRC 1417, 1420 (June 1981). See also Western Fuels-Utah, Inc.,
11 FMSHRC 278, 285-86 (March 1989), appeal filed, No. 89-1258 (D.C. Cir.
April 20, 1989); United States Steel Corp., 5 FMSHRC 36 (January 1983).

1932

Here, the memorandum from the former district manager is at odds with
the express language of sections 75.1704 and 75.1704-l(a).
Therefore, for all of these reasons, we agree with the judge that
section 75.1704-l(a) does not impose upon mine operators a mandatory
duty to either maintain escapeways in accordance with the subject
criteria or to seek prior approval from a district manager for nonconformance with the criteria.
II.
The judge also concluded that the violation of section 75.1704 at
issue in Docket No. 87-211-R was not the result of UP&L's unwarrantable
failure to comply with the standard. Noting the Commission's holdings
in Emery Mining Corp., 9 FMSHRC at 2004, and Youghiogheny & Ohio Coal
Co., 9 FMSHRC at 2010, that unwarrantable failure means "aggravated
conduct, constituting more than ordinary negligence, by a mine operator
in relation to a violation of the Act," the judge found that UP&L's
conduct in relation to the violation constituted ordinary negligence but
not aggravated conduct. 11 FMSHRC at 85. The question is whether
substantial evidence supports the judge's finding. We hold that the
record supports the judge's finding.
The judge found that uncontroverted evidence established that the
six inch water line in the escapeway reduced clearance and that loose
coal and sloughage restricted the width of the escapeway. 11 FMSHRC at
84. However, these violative conditions were neither extensive nor
longstanding. Randy Tatton, the chief safety engineer at the mine,
testified that he measured the escapeway in the vicinity of the water
pipe and that while his measurements indicated that the width at the
base of the pipe was 48 inches, and the width of the escapeway at the
top was 43 inches, the pipe was located on the edge of & crosscut and
the crosscut provided added space to pass around the pipe. Tr. 298-300.
In addition, Ted Farmer, the inspector who cited the violation, stated
that the reduction in the width of the escapeway extended along the
escapeway for only six inches, the diameter of the pipe. Tr. 107-08.
Further, the condition regarding the pipe had been created during the
shift immediately prior to the shift on which the violation was found by
the inspector. Tr. 83, 87, 258-60.
As to the presence of the loose coal and rib sloughage, Tatton's
unrebutted testimony established that, because sloughage is common in
the mine, beltmen are routinely assigned to keep passageways clean.
(Tr. 235-237). Tatton further testified that, at the time of Farmer's
inspection, two beltmen were shoveling loose coal and sloughage from the
cited area and had been doing so for an hour before Farmer arrived. Tr.
297-298.
Finally, Inspector Farmer's testimony concerning UP&L's
unwarrantable failure in relation to the violation was equivocal.
Although he stated that he considered the condition of the escapeway to
be the result of a lack of due diligence and indifference, when asked if
there was a serious lack of reasonable care on UP&L 1 s part in relation
to the viol~tion, he stated, "I really don't know about that •.• I

1933

wouldn't speculate on that at all."

Tr. 90.

Given the limited extent of the conditions, the short period
during which they existed, the fact that clean-up operations had begun
before the inspector arrived, and the inspector's equivocal testimony
regarding unwarrantable failure, we conclude that the judge's holding
that the violation was not the result of UP&L's unwarrantable failure to
comply is supported by substantial evidence.
III.

Accordingly, we aftirm the judge's decision finding no violation
in Docket No. WEST 87-224-R and finding no unwarrantable failure in
Docket No. WEST 87-211-R.

~~

£~1
Richard V. Backley, Commission~

JL~er
L. Clair Nelson, Commissioner
Distribution
Thomas C. Means, Esq.
Ann R. Klee, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
280 Colonnade Center
1244 Speer Blvd.
Denver, Colorado 80204

1934

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

October 31, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 88-176

v.
CONSOLIDATION COAL COMPANY

BEFORE:

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

BY THE COMMISSION:
This civil penalty proceeding, arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982) ("Mine
Act" or "Act"), involves a citation issued to Consolidation Coal Company
("Consol") alleging that it violated 30 C.F.R. § 50.10 by failing to
notify immediately the Department of Labor's Mine Safety and Health
Administration ("MSHA") of a reportable unplanned roof fall. l/

ll

30 C.F.R. § 50.10 provides:
If an accident occurs, an operator shall
immediately contact the MSHA District or Subdistrict
Office having jurisdiction over its mine. If an
operator cannot contact the appropriate MSHA
District or Subdistrict Office it shall immediately
contact the MSHA Headquarters Off ice in Washington,
D.C., by telephone, toll free at (202) 783-5582.

30 C.F.R. § 50.2(h)(8) defines "accident," in relevant part, as
follows:
"Accident" means,

*

*

*

An unplanned roof fall at or above the anchorage
zone in active workings where roof bolts are in use;

1935

Commission Chief Administrative Law Judge Paul Merlin concluded that
Consol violated section 50.10 and, finding the violation to be serious
in nature, assessed a civil penalty of $500. 10 FMSHRC 1633 (November
1988)(ALJ). For the following reasons, we affirm the judge's finding of
violation, reverse his determination as to the gravity of the violation
and reduce the penaity.
Consol owns and operates the Humphrey No. 7 Mine, an underground
coal mine in Monongalia County, West Virginia, utilizing longwall
m1n1ng. On Friday, November 13, 1987, at about 2:00 p.m., an unplanned
roof fall occurred in the headgate entry of the 2-southwest longwall
section. The fallen roof covered the crusher and resulted in 2-2~ feet
of debris between the ribs and the sides of the crusher.
At the time of the roof fall, Sam McLaughlin, Consol's longwall
coordinator, was approximately 1,500 feet from the face. He was
notified immediately and proceeded to the area of the roof fall. Once
there, he communicated by mine telephone with the longwall section
foreman, who was at the longwall face inby the fall, and learned that no
one had been injured and that ventilation was not impaired. McLaughlin
directed the section foreman to send the miners out through the longwall
tailgate entry. (The normal route of egress from the longwall face was
through the headgate entry.) McLaughlin next telephoned Blaine Myers,
Mine Superintendent, informed him of the roof fall and that the miners
were leaving through the tailgate entry, and requested assistance in
timbering the area of the fall.
While at his surface office, Stanley Brozik, Consol's safety
supervisor and the person designated by Consol to notify MSHA of
reportable accidents, was informed of the roof fall in a telephone call
received a few minutes after 2:00 p.m. Brozik was told that there were
no injuries and that the miners were retreating through· the tailgate
entry. Brozik proceeded underground and reached the roof fall site in
approximately 35 minutes. He spent about 45 minutes determining the
extent of the fall and examining conditions at the site. Brozik devoted
his attention primarily to determining whether the fall affected the
area above the anchorage zone of the roof bolts. He testified that
because "the men had got off the back end of the storage loader," he
"never really reported this incident as being impassable." Tr. 46.
Brozik thereafter left the site and returned to the surface, which
took him about 20 to 25 minutes, and he then telephoned MSHA to report
the roof fall. The recorded time of the telephone call to MSHA was
3:58 p.m., approximately two hours after the roof fall had occurred.
Brozik testified that he could have made the call to MSHA from an
underground mine telephone.
MSHA inspector Lynn Workley inspected the mine on the following
Monday, November 16, 1987. He issued a citation to Consol, pursuant to
section 104(a) of the Mine Act, 30 U.S.C. § 814(a), for what he regarded
as the late reporting of the roof fall. In his citation, the inspector
or, an unplanned roof or rib fall in active workings
that impairs ventilation or impedes passage ....

1936

mentioned that the unintentional roof fall was a reportable accident
because it had occurred "above the anchorage zone of roof bolts [and]
interfered with passage of persons .... " The Secretary subsequently
proposed a penalty of $250 for the alleged violation, determining that
the violation was not of a serious nature. The matter proceeded to
hearing before Chief Judge Merlin.
The parties stipulated that the roof fall was an unplanned roof
fall within the meaning of section 50.2(h)(8). In his decision, the
judge examined the specific grounds upon which the fall constituted an
"accident" within the purview of that provision. While Consol's witness
Brozik testified that he had focused his inquiry on whether the fall
extended above the roof bolt anchorage zone, the judge determined that
passage was impeded and that the roof fall, therefore, constituted an
"accident" within the meaning of section 50.2(h)(8). 10 FMSHRC at
1635-36.
The judge next focused on whether Consol's notification to MSHA
was "immediate" within the meaning of section 50.10. He found that
"[i]f the safety supervisor [Brozik] or others had taken the moment or
two necessary to ask the obvious questions [about the passage being
impeded], they would have known immediate notification was required and
so would have called MSHA before going underground." 10 FMSHRC at 1637.
The judge determined that the procedures followed by Brozik and other
management officials failed to satisfy the requirements of the
regulations. 10 FMSHRC at 1636. In reaching this conclusion, the judge
considered Consol's argument that an operator must have an opportunity
to conduct a "reasonable" investigation in order to determine whether
notification of MSHA is required under section 50.10. He found that
Consol, with a minimum of effort, could have ascertained the facts
necessary to determine the requirement of immediate notification.
10 FMSHRC at 1637. The judge noted that "even after his investigation,
[Brozik] waited until he was above ground to notify MSHA although he
could have telephoned MSHA from below ground 20 or 25 minutes earlier."
Id. He concluded that the operator's position in this case "would mean
that instead of being 'immediate', notification would be virtually the
last thing to be done and accorded little, if any, priority." Id. In
considering the appropriate penalty, the judge rejected the Secretary's
position that the violation was not serious. 10 FMSHRC at 1637-38.
Based on his belief that Part 50 violations are intrinsically serious,
the judge found a high degree of gravity and assessed a civil penalty of
$500. 10 FMSHRC at 1638.
The Commission granted Consol's Petition for Discretionary Review
("PDR") challenging the judge's finding of violation and his
determination as to the gravity of the violation.
With respect to the issue of violation, Consol argues on review
that under the circumstances of this case it satisfied the immediate
notification requirement of section 50.10. Consol asserts that an
operator should be allowed a reasonable opportunity to investigate a
roof fall to determine its duties under the Secretary's regulations,
viz., whether a particular roof fall is, in fact, reportable. Consol
contends that it was not instantly obvious that the roof fall was

1937

reportable under section 50.10 and that once "the proper management
persons determined the roof fall was reportable they 'immediately'
report[ed] the roof fall to MSHA. 11 PDR 8. Consol bases this contention
on Brozik's. investigation of whether the roof fall affected the area
above the anchorage zone of the roof bolts -- a task that Brozik
testified took him some 45 minutes to complete. Consol argues that,
once it became evident to Brozik that the roof fall was reportable
because it was above the anchorage zone of the roof bolts, he made the
call to MSHA within 20 minutes. Consol asserts that this was
sufficiently "immediate" notification to meet the requirements of the
regulation. Under the facts presented, we disagree.
Section 50.10 provides that operators "shall immediately contact"
appropriate MSHA representatives regarding specified "accidents,"
including certain "unplanned roof falls." For present purposes, the key
regulatory consideration is that such accident notification must be made
"immediately."
There is no definition of the term "immediately" in the
Secretary's regulations. It is, however, a common term. The relevant
ordinary meaning of the word "immediate" is: "occurring, acting or
accomplished without loss of time: made or done at once: instant .... "
Websters Third New International Dictionary (Unabridged) 1129 (1986 ed.)
See also Random House Dictionary of the English Language (Unabridged)
956 (2d ed. 1987). "Immediately" is defined as "without interval of
time: without delay: straightaway .... " Webster's, supra.
Although the regulation requires operators to report immediately
certain "accidents" as defined in section 50.2(h), it must contemplate
that operators first determine whether particular events constitute
reportable "accidents" within that definition. Section 50.10 therefore
necessarily accords operators a reasonable opportunity for investigation
into an event prior to reporting to MSHA. Such internal investigation,
however, must be carried out by operators in good faith without delay
and in light of the regulation's command of prompt, vigorous action.
The immediateness of an operator's notification under section 50.10 must
be evaluated on a case-by-case basis, taking into account the nature of
the accident and all relevant variables affecting reaction and
reporting.
Applying these considerations to the present case, we agree in
result with the judge that Consol violated section 50.10. The judge
concluded that the actions of Brozik, the Consol official responsible
for making the accident report, violated the regulation in two respects:
(1) in view of the information conveyed during the initial telephone
call from the longwall section notifying him of the roof fall, he should
have determined that passage was "impeded" in the entry; and (2) after
his investigation at the site, he could have reported the accident to
MSHA using the underground telephone rather than waiting 20 to 25
minutes to make the call from the surface. 10 FMSHRC at 1636-37. Even
were we to agree with Consol's position that Brozik did not violate the
regulation by not contacting MSHA prior to his onsite investigation, we
nevertheless conclude that, under the circumstances involved, an
unreasonable amount of time elapsed between his arrival underground and

1938

his call to MSHA.
As the judge recognized (10 FMSHRC at 1635-36), an unplanned roof
fall in active workings is a reportable "accident" if it occurs at or
above the anchorage zone where roof bolts are in use, or if it "impairs
ventilation" or "impedes passage." Section 50.2(h)(8), n. 1 supra.
Substantial evidence supports the judge's finding that the roof fall
impeded passage in the headgate entry: the roof had fallen on the
crusher and there was debris 2-2! feet high between the ribs and the
sides of the crusher. · Tr. 40, 44, 48-50, 53. It was obvious that
passage was "impeded" in the headgate entry. As noted above, miners in
the area were evacuated through the tailgate entry, not through the
headgate entry, which was the normal route of travel. Considering his
testimony, Brozik may have believed that a roof fall had to render a
passage impassable before the reporting requirement is triggered. See
Tr. 44, 46, 49-50. The regulation, however, speaks in terms of impeded
passage, not impassability. In addition, once Brozik arrived at the
site, he proceeded to spend 45 minutes investigating the fall and then
another 20-25 minutes traveling to the surface before contacting MSHA.
We are satisfied that, upon observing the roof fall, Brozik should have
reported the accident to MSHA at some time prior to his 4:00 p.m.
notification. Under the circumstances, the 4:00 p.m. notification was
not "immediate" and a violation of the regulation occurred.
With respect to the penalty, section llO(i) of the Mine Act grants
the Commission final authority to assess civil penalties for all
violations under the Act and sets forth six criteria, including "gravity
of the violation," that the Commission shall consider in assessing
penalties. 30 U.S.C. § 820(i). The Secretary proposed an assessment of
a $250 penalty based, in part, on her determination that the gravity of
the violation was of a low degree. The judge rejected the Secretary's
position concerning gravity and assessed a penalty of $500. The judge
based his gravity finding on a per se determination that all violations
of section 50.10 are intrinsically serious. 10 FMSHRC at 1637-38. On
review, Consol asserts that the judge abused his discretion in rejecting
the Secretary's position on gravity and argues that if there is a
violation in this case, it is not of a serious nature.
The Commission has repeatedly made clear that assessment of
appropriate civil penalties based on the criteria specified in 30 U.S.C.
§ 820(i) is de novo before the Commission and that Commission judges and
the Commission are not bound by the Secretary's proposed penalties or
her views as to any of the specific penalty criteria. See, ~'
Sellersburg Stone Co., 5 FMSHRC 287, 290-93 (March 1983), aff'd, 736
F.2d 1147, 1151-52, (7th Cir. 1984).
With respect to the merits, we perceive no warrant for adopting a
per se rule that all violations of section 50.10 necessarily reflect a
high degree of gravity. Here, the accident report was made, and was
made within two hours of the accident. During a considerable portion of
that time, the responsible person was engaged in a good faith
investigation into the particulars of the accident. Also, we note that
the MSHA representative's initial post-accident visit to the mine the
following Monday &enerated no indication in the record that any

1939

necessary corrective action was frustrated by the delayed accident
report. The Secretary initially determined that the violation was not
serious. In considering gravity, the judge relied in part upon prior
litigation·involving reporting violations by Consol. However, we note
that in the earlier case, Consol actually failed to file the required
accident and injury reports. Consolidation Coal Company, 9 FMSHRC 727
(April 1987)(ALJ).
Thus, we conclude that substantial evidence of record does not
support the judge's finding that the violation in this case reflected a
high degree of gravity and, accordingly, we vacate that finding. "While
a judge's assessment of a penalty is an exercise of discretion,
assessments lacking record support, infected by plain error, or
otherwise constituting an abuse of discretion are not immune from
reversal by the Commission." United States Steel Corporation, 5 FMSHRC
1423, 1432 (June 1984). Discounting the judge's finding as to gravity,
we hold that a civil penalty of $250 is appropriate and consistent with
the statutory criteria.

1940

For the foregoing reasons, we affirm the judge's finding of
violation, reverse his determination as to the gravity of the violation,
and asses~ a civil penalty of $250.

~-m-a-n--------~
eA<(,,C,,CA::/6ulu-i .
'-Richard V. Backley, CommissionerV

~~=
:cJ:airNelSOn, Commissioner

Distribution
Colleen A. Geraghty, Esq.
Offic~ of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Michael R. Peelish, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

194_1

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

October 31, 1989
RONALD TOLBERT

v.

Docket No. KENT 86-123-D

CHANEY CREEK COAL CORPORATION

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson, ·
Commissioners
ORDER
-

BY THE COMMISSION:
In this discrimination proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act"
or "Act"), complainant Ronald Tolbert has filed with the Commission a
Motion to Reopen and Remand. The 1987 decisions of the administrative
law judge finding discrimination and awarding complainant relief became
final decisions of the Commission because the Commission did not grant
the petition for discretionary review filed by Chaney Creek Coal
Corporation ("Chaney Creek") and Chaney Creek did not petition for
review in a United States Court of Appeals. 9 FMSHRC 580 (March
1987)(ALJ); 9 FMSHRC 929 (May 1987)(ALJ); 30 U.S.C. §§ 816 and
823(d)(l). Shortly thereafter, complainant filed a motion to reopen the
proceeding, which motion was denied by the Commission. See Ronald
Tolbert v. Chaney Creek Coal Corp., 9 FMSHRC 1847 (November 1987).
Complainant's present motion seeks further proceedings before the
Commission to determine (1) additional back pay and attorney's fees that
complainant asserts are due, and (2) whether John Chaney, owner of
respondent Chaney Creek, is the alter ego of the company and, therefore,
personally liable for the relief due complainant. Counsel for the
Secretary of Labor has submitted a Motion for Leave to File a Memorandum
as Amicus Curiae in support of complainant's motion. No response to
these motions has been filed by Chaney Creek.
Upon consideration of the Secretary's motion, it is granted and
the Secretary's amicus memorandum is accepted this date for filing in
this proceeding.

1942

Concerning complainant's motion to reopen and remand, complainant
has failed to identify any specific basis or authority upon which the
Commission can rely to reopen this proceeding to consider the merits of
his request for relief at this time. Complainant is accordingly
directed to file with the Commission a supplemental memorandum on or
before November 27, 1989, setting forth (1) the jurisdictional authority
,permitting the reopening of this matter before the Commission for the
purpose of considering the issues raised in complainant's motion and
(2) his position, as to why, given the May 1988 enforcement of the
Commission judge's decisions in this proceeding by the United States
Court of Appeals for the Sixth Circuit, the Court of Appeals is not the
proper tribunal before which to pursue the alter ego issue (~ 30
u.s.c. § 816(b)).
The Secretary of Labor as amicus may also file a memorandum within
this time identifying the jurisdictional basis for its view that the
Commission may reopen this case for further proceedings. Respondent
Chaney Creek may file a response to any submission by Tolbert or the
Secretary within 15 days of the date of service of such memorandum. No
memorandum submitted in response to this order shall exceed 15 pages.

(k-r'--':__

Joy'ce A. boyle,

1943

Distribution
Dennis D. Clark, Esq.
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Tony Oppegard, Esq.
Appalachian Research & Defense Fund
of Kentucky, Inc.
P.O. Box 360
Hazard, Kentucky 41701
John Chaney
Route 1, Box 286
East Bernstadt, Kentucky

40729

Steven D. Cundra, Esq.
Peter A. Greene, Esq.
Thompson, Hine & Flory
1920 N Street, N.W.
Washington, D.C. 20036

1944

ADMINISTRATIVE LAW JUDGE DECISIONS

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

22041

OCT 3 1989
SECRETARY OF LABOR,
MINE SAFE:TY AND HEALTH
ADMINISTRATION CMSHA},
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 89-58-M
A. C. No. 08-01026-05509

v.
Charlotte County Rock Plant
FLORIDA MINING & MATERIALS,
Respondent
DECISION
Appearances:

Stephen Alan Clark, Esq., for the Secretary of
Labor;
Archie B. Clark, Director, Human Resources and
Safety, for Respondent

Before:

Judge Fauver

The Secretary of Labor brought this case for a civil penalty
under§ llO{a} of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Findings of Fact
and further findings in the Discussion below.
FINDINGS OF FACT
1. Respondent operates a limestone mine, known as the
Charlotte County Rock Plant, in North Fort Myers, Florida, which
produces limestone for sale or use in or substantially affecting
interstate commerce. It employs about 25 employees at the mine,
and its total employment iri ·mining is about 690 employees.
2. On August 10, 1988, Federal Mine Inspector Harry Verdier
inspected the mine and issued Order 3250044 charging a violation
of 30 C.F.R. § 56.9003, for operating a Michigan 125 front end
loader without operative brakes.
3.

The front end loader did not have operative brakes.

4. The back-up alarm on the front end loader was also
inoperative.

1945

5. The front end loader was used to haul drill tubes from
the storage area to the drill area, near a water-filled pit. The
water in the pit was 40 to 50 feet deep.
6. The front end loader was also used to transport
personnel from the drill area to a parking area near a repair
shop, a distance of about one-half mile.
7. Three citations for brake defects had been issued at
this mine before the date of Order 3250044. Two of them were
issued to an independent contractor, Goodwin Construction
Company, for its equipment. One of the citations was issued to
Respondent for inadequate brakes on equipment owned and operated
by Respondent.
DISCUSSION WITH FURTHER FINDINGS
The brakes on the Michigan 125 front end loader were
inoperative when inspected by Mine Inspector Verdier on August
10, 1988. The vehicle had been used that morning without
operative brakes, before the federal inspection, and it was
reasonably likely that it would have been used again in the same
defective condition, if the inspector had not ordered it to be
withdrawn from service.
The equipment operator knew that the brakes were inoperative.
The mechanic was also aware that the front end loader had
defective brakes.
The mechanic informed Mine Inspector Verdier
that there had been problems with the master cylinder of the
front end loader.
The front end loader also had an inoperative automatic
back-up alarm signal. This fact would have been known to at
least two of Respondent's employees: the equipment operator and
the drill operator.
Respondent acknowleges that the violation was substantial
and significant in terms of gravity.
Its defense is that it
should not be charged with high negligence because the equipment
operator was required to report safety defects and failed to do
so. The plant manager testified that "if the [equipment]
operator gets on a piece of .equ1pment and finds a defect, there
is a reporting system through the card system that that defect is
to be reported and cecorded on a card." Tr. 42. He further
testified that no defect was reported by the equipment operator
before the inspection, and if the defective brakes had been
reported to management, Respondent "would have parked that piece
of equipment, tagged it out and not operated it until the brakes
had been repaired." Tr. 44.
There are three prior citations for defective brakes on
equipment operated at this mine. Two were issued in 1986 to an

1946

independent contractor doing work for Respondent1 the third was
issued later, in 1987, for equipment that was owned and operated
by Respondent. Respondent had knowledge of the three citations
when they were issued. If thus had ample prior knowledge of the
safety standard for adequate brakes involved in the present case.
The fact that the front and loader was being operated
without brakes and without a back-up alarm underscores a
negligent disregard of safety standards respecting this vehicle.
Considering all the evidence, I find that Respondent's employees
were highly negligent in operating and permitting the operation
of the front end loader without operative brakes and that their
negligence is imputable to Respondent.
It was within the
authority and control of Respondent to supervise and train its
employees and manage its operations to ensure that its equipment
would not be operated without defective brakes, but Respondent
failed to meet this statutory obligation.
Considering each of the criteria for a civil penalty in
of the Act, I find that a penalty of $1,000 is
appropriate for this violation.
§ llO(i)

CONCLUSIONS OF LAW

1.

The judge has jurisdiction over this proceeding.

2. Respondent violated 30 C.F.R. § 56.9003 as charged in
Order 3250044.
ORDER
Respondent shall pay the above civil penalty of $1,000
within 30 days of this Decision.

~J~11 ~ 9-°AMvtA-

~iam Fauver

Administrative Law Judge.
Distribution:
Stephen Alan, Bsq., Office of the Solicitor, U.S. Department of
Labor, Federal Building, Room 407B, 299 Bast Broward Boulevard,
Fort Lauderdale, FL 33301 (Certified Mail)
Mr. Archie B. Clark, Jr., Director, P.O. Box 23965, Tampa, FL
33630 (Certified Mail)
iz

1947

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

22041

OCT 3 1989
CONNIE MULLINS,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. VA 89-18-D
MSHA Case No. NORT CD 88-8

CLINCHFIELD COAL COMPANY,
Respondent

Splashdam Mine
DECISION

Appearances:

Jerry o. Talton, Esq., Front Royal, Virginia, for
the Complainant;
W. Challen Walling, Esq., Penn, Stuart, Eskridge &
Jones, Bristol, Virginia, and Hilary K. Johnson,
Esq., Clinchfield Coal Company, Lebanon, Virginia,
for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed by
the complainant Connie Mullins against the respondent pursuant to
section 105(c) of the Federal Mine Safety and Health Act of 1977.
Mr. Mullins filed his initial complaint with the Secretary of
Labor, Mine Safety and Health Administration (MSHA), and by
letter dated October 28, 1988, he was advised by MSHA that after
review of the information gathered during its investigation of
his complaint, MSHA determined that a violation of section 105(c)
had not occurred. Subsequently, on November 30, 1988,
Mr. Mullins filed his complaint with the Commission.
The complainant contends that the respondent discriminated
against him when it suspended him from his laborer's job, and
subsequently discharged hilJl ~:m. May 16, 1988, out of retaliation
for his engaging in certain safety activities protected by the
Act, and the respondent denies that it discriminated against the
complainant. A hearing was held in Kingsport, Tennessee, and the
parties filed posthearing arguments which I have considered in
the course of my adjudication of this matter.

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301 et seg.
2.
Sections 105(c) (1), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 815(c) (1), (2) and
( 3) •

3.

Commission Rules, 29 C.F.R. § 2700.1, et seg.
Issues

The issues presented in this case are as follows:
1. Whether the complainant's suspension and
subsequent discharge was motivated by the respondent's
intent to harass him, or to retaliate against him,
because of his insistence that ventilation checks be
made when machinery was moved from location to location, and because of his reporting of an alleged safety
violation to an MSHA inspector.
2. Whether the respondent's suspension and discharge of the complainant for failing to adhere to a
"last chance agreement," in connection with the respondent's chronic and excessive absenteeism policy, was
pretextual.
3. Whether the application of the respondent's
absenteeism policy and program was discriminatory.
Additional issues raised by the parties are identified and
disposed of in the course of this decision.
Stipulations
The parties stipulated to the admissibility of all documents
marked and received in evidence as Joint Exhibits 1 through 21
(Tr. 7). The parties stipulated that Mr. Mullins was suspended,
and subsequently discharged on or about May 15, 1988 (Tr. 48-49).
They agreed that at the time of the suspension and discharge
Mr. Mullins was earning $15.56 per hour for a normal 40-hour work
week.
·· · ·
The respondent agreed that the Commission and the presiding
judge have jurisdiction in this matter, and that the respondent's
underground Splashdam Mine, where Mr. Mullins was employed, is
subject to the Act (Tr. 52, 68).
The respondent stipulated that it does not disagree that in
March, 1988, MSHA Inspector Charlie Reese issued a citation

1949

related to two missing roof bolts which were pointed out to him
by Mr. Mullins (Tr. 39-41).
The parties stipulated that exhibits JE-6 through JE-13,
consisting of certain mine management records concerning
Mr. Mullins' past absences, accurately reflect what is stated in
these documents (Tr. 95).
The parties also stipulated that at the time of the hearing
in this case, there was no union/management contract, and that a
strike which began on April 5, 1989, was still in effect.
Although the mine was in operation, no union personnel were
working at the mine (Tr. 196-197).
Discussion
During opening arguments at the hearing, complainant's
counsel asserted that Mr. Mullins' discharge was in part, if not
primarily, due to an intent by the respondent to retaliate
against him for engaging in protected activities.
Counsel
asserted that Mr. Mullins was part of a union "inside campaign"
to require the respondent to comply with the mine ventilation
regulations and that he was one of the principal individuals at
the mine who insisted that ventilation checks be made on all
occasions when mining machinery was moved from location to location.
Counsel concluded that as a result of this protected
activity,. Mr. Mullins was discharged (Tr. 8-9). Counsel asserted
further that shortly before the discharge, Mr. Mullins reported a
safety violation to an MSHA inspector, which resulted in the
·issuance of a citation, and that the respondent had knowledge of
this report by Mr. Mullins, and retaliated against him by discharging him (Tr. 9).
With regard to the respondent's defense that it discharged
Mr. Mullins pursuant to its chronic and excessive absenteeism
program, counsel asserted that the respondent's policy and
program is discriminatory per se, is not in writing, and allows
the respondent to discharge employees for excused absenteeism
related to injuries and accidents, and as applied to Mr. Mullins,
the policy provides a pretextual means or method for respondent
to retaliate or terminate "problem" employees because of their
union or safety activities (Tr. 10).
With regard to Mr. Mullins' prior contention that his failure to report for work on April 14 and 21, 1988, was based on his
belief that to report for work on those days would have constituted a safety threat to himself and his fellow workers because
he was on medication, counsel asserted that he would not pursue
this issue for "strategic reasons," and would not contend that
this "work refusal" by Mr. Mullins was protected activity which
would provide a claim for relief pursuant to section 105(c) of

1950

the Act (Tr. 11-12). When asked whether he intended to withdraw
this issue, counsel responded as follows at (Tr. 18):
MR. TALTON: Well, I don't want to dilute my case, and
I'm going to stick with my original position. We're
not going to contend that the unsafe personal condition
of Connie Mullins was a -- that that was grounds for a
protected activity in this case. We're premising our
.contention of harassment-discrimination upon the
grounds previously set forth, Your Honor.
Respondent's counsel asserted that the action taken by the
respondent against Mr. Mullins was proper and nondiscriminatory,
and that even assuming that Mr. Mullins engaged in protected
activity, the respondent would have suspended and discharged him
anyway for his nonprotected activity. With regard to the withdrawal of Mr. Mullins' "work refusal" claim based on a medical
condition, counsel pointed out that this was the only issue
raised by Mr. Mullins when he filed his initial discrimination
complaint with MSHA on July 13, 1988 (Joint Exhibit-1), and since
he has withdrawn it, counsel moved for a dismissal of this case
(Tr. 14).
In response to the motion to dismiss, I pointed out to
respondent's counsel that in his pro se complaint filed with the
Commission, Mr. Mullins raised the issue relative to his safety
activities concerning ventilation checks, and his reporting of an
alleged safety violation to an MSHA inspector, and claimed that
the actions taken by the respondent were based on these protected
activities.
I also pointed out that the complaint also raised
the issue of an alleged "pretextual" discharge based on a "last
chance agreement" entered into by Mr. Mullins and the respondent
with respect to his asserted absenteeism, and that all of these
claims were sufficiently viable issues for at least a prima facie
case of discrimin.1tion. Under the circumstances, the motion to
dismiss was denied from th~ bench (Tr. 13-17).
Complainant's Testimony and Evidence
Connie D. Mullins testified that he worked for the respondent for 13-years prior to his discharge, and served as a miner
helper for approximately a year.
He confirmed that he has been a
member of the UMWA Local 7170 since 1975, but has held no office.
He also confirmed that upori the expiration of the BCOA LaborManagement contract on January 31, 1988, his union local
requested him, as well as other miners, to initiate an "inside
campaign" at the respondent's mine to insure that all work performed was done to the letter of the law. He explained that
miners were expected to "work to the law" to insure that all mine
safety laws were enforced.

1951

Mr. Mullins stated that as a result of the union "inside
campaign," he began to insist that air ventilation checks be made
during his work shift in each area where coal was cut, and that
his insistence that this be done began in February, 1988. He
believed that a ventilation air reading was required to be made
at each new cut of coal.
Mr. Mullins stated that in April, 1988, approximately 1 to
2 weeks before his discharge, he asked his foreman Cleebern
Newberry to take an air reading after he had finished a coal cut.
Mr. Newberry responded to his request and took an air reading.
Mr. Mullins stated that another coal cut was taken and he asked
Mr. Newberry to take another air reading, and he again responded
and took the reading. Mr. Mullins stated that he continued to
request that additional ventilation air readings be made after
each cut of coal for the rest of the evening, and that
Mr. Newberry responded and made the checks. Mr. Mullins stated
that he continued to request ventilation checks at least three to
five times during each of his succeeding work shifts, and that
there were no coal cuts made when he did not insist on a ventilation check (Tr. 20-33).
Mr. Mullins stated that sometime in March of 1988, he
observed that two roof bolts were missing from a roof area and
that he reported this to his foreman Grady Colley. Mr. Colley
told him that he would take care of the condition, and 2 or
3 days later when no corrective action was taken, Mr. Mullins
reported the condition a second time to Mr. Colley, but nothing
was done about it. Mr. Mullins stated that he then reported the
two missing roof bolts to MSHA Inspector Charles Reese who
happened to be underground conducting an inspection, and that he
took the inspector to the area and showed him where the bolts
were missing (Tr. 33-35).
Mr. Mullins also alluded to a "wide place" which had been
cut, but he was not certain whether a violation was issued for
this condition. He confirmed that after the missing roof bolt
citation was issued, Mr. Colley assigned him to abate the condi~
tion and to set timbers and crib blocks to support the roof.
Mr. Mullins believed that the missing roof bolts presented a
hazard and danger of draw rock falling, and that the wide cut
also presented this same danger. He confirmed that eight or nine
other men were available to abate the condition, but that
Mr. Colley assigned him to tnis task (Tr. 41-47).
Mr. Mullins confirmed that he did not discuss the ventilation checks with management prior to his discharge, other than to
request that they be made (Tr. 48). He confirmed that on one
occasion when he requested Mr. Newberry to make an air reading,
Mr. Newberry informed him that since the ventilation curtain was
moving, there was enough air. However, Mr. Newberry proceeded to
make the check as he requested (Tr. 28-30).

1952

Mr. Mullins stated that he has not been employed since his
discharge on.May 15, 1988, and he confirmed that he has not
looked for work in any union or non-union mines. He also confirmed that he has looked for work near his place of residence,
Clintwood, Virginia, and has made work inquiries at a local
repair shop, Exxon Service station, a farm store, and the s & J
Tire Store. He stated that he received 6 months of unemployment
payments, and that his name is on a job roster maintained by the
State of Virginia Employment Commission (Tr. 53-55).
Mr. Mullins. stated that he was "somewhat familiar" with the
respondent's chronic absenteeism policy, but has never seen it in
writing, and to his knowledge, the respondent has never posted it
at the mine. He confirmed that the BCOA contract covers this
subject, and he believed that absences where doctor's slips are
produced by an employee are treated as excused absences. He
identified exhibits JE-15 and JE-16 as a doctor's excuse and
dental appointment notice covering the 2 days he did not report
for work on April 14 and 21, 1988. He stated that he gave them
to his foreman or the mine superintendent upon his return to
work, but he did not recall specifically who he gave them to (Tr.
56-61).
Mr. Mullins confirmed that he filed a grievance and arbitration action in connection with his suspension and discharge but
did not prevail in these actions (Tr. 63).
On cross-examination, Mr. Mullins confirmed that his union
began a strike at the mine on April 5, 1989, and that upon the
expiration of his unemployment benefits, he received union strike
benefit payments of $200 a week, and received these benefits
before the actual start of the strike (Tr. 63-67).
Mr. Mullins confirmed that prior to his discharge he worked
the evening shift from 4:00 p.m. to 12:00 p.m.
He also confirmed
that Mr. Colley was his foreman until a week or so prior to his
discharge, that Mr. Newberry was his foreman immediately prior to
his discharge, and that he had only worked for Mr. Newberry for
approximately a week prior to his discharge. He confirmed that
he got along well with Mr. Colley, and that he had shown no
animosity towards him (Tr. 69-70).
Mr. Mullins stated that.prior to the start of the union
"inside campaign," he did not request ventilation checks at each
coal cut interval. He confirmed that on each occasion when he
requested a ventilation check, Mr. Newberry agreed and made the
check. Mr. Mullins assumed that in each instance, adequate air
ventilation was available, and he could recall no instances where
the ventilation checks made by Mr. Newberry indicated less than
adequate air ventilation in the areas which were tested.
Mr. Mullins stated that on one occasion where the ventilation air

curtains "were blowing," Mr. Newberry was of the opinion that a
ventilation reading was not needed (Tr. 71-73).
With regard to the reported roof bolt condition which
resulted in a citation being issued to the respondent,
Mr. Mullins stated that the bolts had been cut off or "sheared
off" after they had been installed, but he had no knowledge as to
how this may have occurred (Tr. 79). Mr. Mullins confirmed that
Mr. Colley informed him that he would correct the condition, but
he could not recall precisely when he informed Mr. Colley of the
condition because he could not recall when he first noticed it.
Mr. Mullins stated that after 2 or 3 days passed, the bolts were
not fixed, and he again asked Mr. Colley about it, and he replied
that he would take care of it. Mr. Mullins could not recall how
soon after this he informed the inspector of the condition, but
confirmed that a citation was issued, and the condition was
corrected and abated (Tr. 81-82).
With regard to his assignment by Mr. Colley to correct and
abate the cited roof bolt condition, Mr. Mullins confirmed that
he was qualified to do this work in a safe manner. He also
confirmed that the roof bolt and crib work which he performed to
abate the condition was work which he had normally performed in
the past (Tr. 82-83).
Mr. Mullins stated that he could not state for sure that
Mr. Colley assigned him to do the aforementioned abatement work
to punish him for reporting the condition. Mr. Mullins confirmed
that Mr. Colley never told him that he was wrong in reporting the
condition to the inspector, and that Mr. Colley was not angry
with him, and did not act, or otherwise indicate, that he held it
against him for reporting the matter. Mr. Mullins also confirmed
that he got along well with Mr. Colley and that Mr. Colley never
expressed any personal animosity towards him (Tr. 84-85).
Mr. Mullins denied that he has had a problem with absenteeism, but admitted that he had been counseled by mine management about absenteeism on many occasions (Tr. 94). He conceded
that mine management expressed their concern to him about his
absences from work during the past 3-years prior to his discharge, and that he had meetings and discussions with his foreman
Colley and assistant mine superintendent William Seik about these
absences.
Mr. Mullins confirmed that at no time during his meetings
and discussions with Mr. Seik or Mr. Colley concerning his work
absences was the subject of safety ever discussed. Mr. Mullins
al·so confirmed that he was aware of the fact that he would be in
"serious trouble" if he had two consecutive AWOL absences on his
record, and that he was aware that miners have been discharged
for such an offense (Tr. 96-97).

1954

Mr. Mullins confirmed that he missed 2 consecutive days of
work in January, 1988, and he confirmed that exhibit JE-5
reflects that he was charged with being AWOL on January 15 and
16, 1988, when he failed to produce "doctor slips" for these
absences (Tr. 97-100).
Mr. Mullins confirmed that he was summoned to a meeting with
Mr. Seik and Mine Superintendent Barry Compton on January 18,
1988, to discuss his absenteeism, and that he attended the meeting with his union committeeman William Powers. Mr. Mullins
estimated that the meeting lasted 1 hour, and he confirmed that
he signed the document detailing what transpired during the
meeting (exhibit JE-14).
Mr. Mullins confirmed that he discussed no safety matters
with Mr. Seik or Mr. Compton during their meeting. Mr. Mullins
acknowledged that as a result of the meeting, he knew that if he
had any further work absences during the ensuing 180 days which
exceeded the mine average for absences that he would be "in
trouble." However, he believed that these absences would have to
be AWOL absences rather than absences involving sick days (Tr.
101-120).
With regard to his absence of April 14, 1988, when he
visited a dentist, Mr. Mullins stated that his dental visit was
at 3:30 p.m., and that he was scheduled to be at work at
4:00 p.m. He confirmed that he did not call in to report that he
would be absent, and although the dentist's office opened at
9:00 a.m., he called the dentist earlier in the day, and was told
that 3:30 p.m. was the only time available to see the dentist.
Mr. Mullins stated that while other dentists may have been available to him he did not call them because the dentist he went to
was his family dentist.
With regard to his doctor's appointment of April 21, 1988,
Mr. Mullins confirmed that he stayed off work on April 20, and
21, and does not recall calling in to report that he would be
absent from work. He confirmed that he has had sinus problems in
the past and has worked on these occasions. He also confirmed
that he never informed Mr. Compton that he was too sick to perform his work safely, and that he did not communicate any safety
concerns concerning his sinus condition to his foremen.
Mr. Mullins further confirmed that he never informed Mr. Seik or
Mr. Compton that his foremen.Colley and Newberry were discrimi-.
nating against him (Tr. 120-133).
In response to further questions, Mr. Mullins referred to
his attendance records (exhibit JE-5), and he explained the days
he was absent and the codes used on these records (Tr. 138-142).
He stated that no one ever told him that the two days coded as
"AWOL" on his records, April 14, and 21, 1988, were in fact
AWOL's, and he indicated that he was granted "sick days" for

1955

those absences (Tr. 143). He also stated that no one ever told
him or warned him that these two particular absences were going
to be used to terminate him (Tr. 158).
Upon review of his last chance agreement, (exhibit JE-14),
Mr. Mullins stated that when he left the meeting with management
concerning this agreement, he did not believe that he had made
any promises (Tr. 160-162). However, he conceded that management
made it clear to him that he must stay within the mine average
for non-allowed absences for the next 180 days, and that he
believed non-allowed absences meant AWOL's or nonexcused
absences. He stated further that under the applicable 1984
labor-management wage agreement, he was not aware of any nonallowed absenteeism other than AWOL's (Tr. 163). Mr. Mullins
also stated that as of April, 1988, i t was his understanding that
all that was necessary for allowed sick leave was a doctor's
slip, and no one ever told him that anything else was necessary,
or that sick leave was not included as an allowed a.bsence pursuant to his last change agreement (Tr. 166).
Mr. Mullins confirmed his understanding that the mine
average of non-allowable absences were those days not allowed
under the wage agreement, and that under that agreement, vacation
days, bereavement days, and birthdays, for which he may excused
or be paid triple time if he works, are different days off, and
that the mine average only covers days not allowed under the
agreement (Tr. 168).
In response to further questions, Mr. Mullins stated that he
believed that foreman Colley was present when he pointed out the
sheared roof bolts to the MSHA Inspector. He was not sure
whether Mr. Colley was present when he met with Mr. Compton and
Mr. Seik about his absenteeism, and he confirmed that he got
along with Mr. Colley and that Mr. Colley never said anything to
him about speaking with the inspector (Tr. 172).
Mr. Mullins stated that he believed the respondent suspended
and discharged him because "it costs them so much time" to take
ventilation readings and "the violations cost the company money"
(Tr. 172). He confirmed that he said nothing to the inspector
about ventilation readings, and that any time he insisted on
taking air readings, the respondent always complied and never
refused him (Tr. 173). He confirmed that in some instances, the
air was insufficient, and curtains would have to be put up (Tr.
174). He confirmed that prior to the expiration of the union
contract with the respondent, he did not make it a practice to
insist on ventilation checks, but he always made sure there was
enough air. He confirmed that he began insisting on ventilation
checks "because our union leaders told us to make the company
work to the letter of the law. So that's what I was engaged in."
He further stated that "we was hoping to get a contract without a

1956

strike. And we was hoping to put pressure on through that way"
(Tr. 175-176) .
Mr. Mullins confirmed that the only time management ever
said anything to him about his insistence on making air checks
was the one occasion when foreman Newberry disagreed with him and
told him that since there was air movement on the line curtain,
the ventilation was sufficient. He further confirmed that
Mr. Newberry never complained or resisted his requests for air
checks, and that this was never mentioned during any management
meetings concerning his absences (Tr. 177).
Mr. Mullins confirmed that the union effort to "work to the
letter of the law" was a concerted effort by all union miners at
the mine, and he knew of no one else who was suspended or fired
for this activity (Tr. 179). Mr. Mullins confirmed that he was
aware of at least two miners who asked for ventilation checks on
his working section, but he could not state how often this was
done (Tr. 182). He stated that based on his observations, the
only time management made ventilation checks was when an inspector was on the section, but that he did not complain about this
"unless it was real bad." He confirmed that he began "doing
something about it" only after January 31, 1988, because he was
instructed to do so by his union, and he admitted that he engaged
"in a little chain pulling on management" (Tr. 188).
Mr. Mullins stated that he saw no preshift examination air
readings, but conceded that company policy requires such readings
and that they "could have been made" (Tr. 192). He also confirmed that he would not always be present in the places where
these readings would have been made (Tr. 192). He confirmed that
when he complained about inadequate air, it was taken care of
within a reasonable time soon after it was discovered (Tr. 195).
Barry N. Compton, general mine superintendent, confirmed
that he was familiar with the respondent's absenteeism policy,
and that an AWOL is not an excused absence. He also confirmed
that any employee missing two consecutive work days on AWOL is
subject to termination. He stated that an "S" code on an employment record means a suspension, and that an "X" code signifies
sick leave in cases where an employee has not brought in a
doctor's excuse verifying his absence from work.
In some circumstances, even though an employee has a doctor's excuse, he may
still be considered AWOL where.the absences are chronic or the
employee has failed to adhere to a last chance agreement. He
identified employee Mike Puckett as an individual who was suspended with intent to discharge for being sick when no AWOL was
involved. He explained that this action was taken pursuant to
the respondent's chronic and excessive absentee policy, and that
Mr. Puckett had several AWOL's and absences not allowed under the
contract (Tr. 198-202).

1957

Mr. Compton also identified employee Bobby Brannan as an
individual who was terminated in 1986 or 1987, after being suspended with intent to discharge under the same policy, and he
indicated that Mr. Brannan's absences included sick days and
AWOL's over a period of time (Tr. 203). He confirmed that these
discharges resulted from a combination of reasons, and that no
one has been discharged for simply being sick (Tr. 204).
Mr. Compton conceded that but for Mr. Mullins' absences on
April 14 and April 20, 1988, he would not have been discharged,
and he stated that "those two days were involved in the fact that
he didn't live l,lp to the agreement," i.g., the last chance agreement of January 18, 1988 (Tr. 204-205). Mr. Compton stated that
the agreement was discussed with Mr. Mullins and that he understood its conditions (Tr. 205).
Mr. Compton stated that neither he or his foreman grant
employees time off from work when they are sick, and that "we
just keep the records" of an employee's contractual and noncontractual absences under the applicable personnel codes
reflected in their records. He confirmed that he has the authority to suspend an employee with intent to discharge, and to make
a determination as to whether or not an employee's sickness is
grounds for discharge (Tr. 206). He confirmed that in
Mr. Mullins' case, management considered his absences of
April 14, and 20, to be less than excused, and that this resulted
in his being over the mine average pursuant to the formula used
for determining employee absence rates (Tr. 207).
Mr. Compton explained that pursuant to the union contract,
an employee is allowed 5 days of sick leave or personal business,
which is coded P on his attendance records.
If an employee calls
in sick five times, the respondent accepts this.
If he does not
call in to report that he is sick, as required by the contract,
he is given an AWOL.
If he continues to take sick leave for more
than his allotted 5 days, and it becomes a habit or trend, i.g.,
calling in sick on Fridays or Mondays on "long weekends," his
absences are coded X on the attendance roster and he is counseled.
If an employee who has been charged with an AWOL for not
calling in returns to work and submits a docto~'s excuse for the
absence, the AWOL is changed to an X code on his records, and he
confirmed that this is what is reflected quite often in
Mr. Mullins' leave records (Tr. 211-215). He confirmed that when
Mr. Mullins visited his dentist on April 14, he was initially
marked AWOL, but when he brought in his doctor's appointment
slip, his record was changed from AWOL to X for that day (Tr.
215) .
Mr. Compton stated that an employee who has three AWOLS in a
30-day period, or six AWOL's in a 180-period, is coded as an
"irregular worker." In his opinion, Mr. Mullins' failure to call
in before taking a sick day on April 14, was an AWOL, and that

1958

his record was coded X to indicate that he had not called in. He
confirmed that after an employee has used up his 5 days of
allotted sick leave, and then misses more work time and brings in
doctor's excuses, he is not paid for these absences, and his
absence is treated as not allowed, and it is counted against his
overall absences. The reason it is considered as not allowed is
because it is separate and apart from the approximately 40 days
.of contractual leave days which are afforded employees (Tr. 219).
Mr. Compton stated that Mr. Mullins was discharged for his
failure to adhere to the last chance agreement. He explained
that the chronic absenteeism policy was only used as a standard
to be followed by Mr. Mullins, and that he was under this policy
plan and had been counseled under this plan (Tr. 233). He
explained further as follows at (Tr. 234-237):
[W]e use the standard of the chronic and excessive plan
because he was in that plan under the counseling
sessions. He understood what the nonallowable days
were under the contract, he understood what it meant to
stay within the mine average. That's why that standard
was used.
He wasn't discharged because his failure to -because of the chronic and excessive plan, but because
of the fact that the standards that were set up in this
last chance agreement which it spells out, the agreement, we gave up the right to discharge him under
Article 22(I). He gave up the fact that -- in turn for
not being discharged, that he would abide by this
agreement, he would stay within the nonallowable absenteeism average for 180 days. He knew what it meant to
be in that, because he was in the C & E policy -chronic and excessive policy by the fact that he had
been in the counseling. That's why I referred to the
chronic and excessive plan, only as a standard for him
to go by, and which he agreed to do.
BY MR. TALTON:

Q. Why don't you excuse people from work who have
doctor's slips? Are you telling us you don't?
A.

In what instance? · ·

JUDGE KOUTRAS:
this case?

Why didn't you excuse Mr. Mullins in

THE WITNESS:
By the fact that he had already used up
his five paid days and it was a non allowable day that
was calculated in --

1959

JUDGE KOUTRAS:

Why did you consider it now allowable?

THE WITNESS: Because he had certain amount of days
within the contract -- 40-some days to take for those
purposes, and anything above and beyond that -JUDGE KOUTRAS:
THE WITNESS:

Is not allowed?
Is not allowed.

JUDGE KOUTRAS: Not withstanding whether they bring in
a doctor's excuse or not, is that right?
THE WITNESS:

Yes.

JUDGE KOUTRAS:

Doctor's slip or not?

THE WITNESS:

But one thing

MR. TALTON:

He's answered.

THE WITNESS: I don't know how much you want me to run
on here or not, but anyhow, you know, we take into
consideration the amount of days they take above and
beyond the contract, we take into consideration the
history, you know, and I take into consideration
Connie's history, the fact that he had been under the - you know, he had had absentee problems for the last
several years, and he had a trend of missing on Mondays
and Fridays, and trends of long weekends. Those are
where those unexcused absences play a big part. I
don't know of anybody that's just missed two days sick
and brought in a doctor's excuse that's ever been
discharged * * *·
And, at (Tr. 239-240):
JUDGE KOUTRAS: My understanding of this agreement,
Counsel, is, he characterizes an agreement for 180 days
from the date of this agreement, you shall not have any
nonallowable days of absences, and if you do, you
violated this agreement. Is that -THE WITNESS:

Above tlie ·mine average.

JUDGE KOUTRAS: In other words, if he had only had one
day nonallowable, if it didn't bring him over the
average, are you telling me you wouldn't have suspended
and fired him?
THE WITNESS:

No, sir.

1960

JUDGE KOUTRAS:
THE WITNESS:

But the two days brought him up, right?
Right.

JUDGE KOUTRAS: And you applied the formula to the
standard, and you came out with a suspension with
intent to discharge? Is that what you're telling me?
THE WITNESS: The counseling sessions, this has all
been explained to him several times before.
Mr. Compton explained further that missing work because he
was under a doctor's care are not allowable absences because
Mr. Mullins executed a last chance agreement, had undergone
counseling, and he was subject to discharge if he exceeded the
mine average for absences (Tr. 243). He confirmed that the
2 days of AWOL chargeable to Mr. Mullins caused him to breach his
agreement, and that pursuant to Article 22(I) of the wage agreement, he had the authority to suspend him with intent to discharge (Tr. 251). Mr. Compton stated that he could have fired
Mr. Mullins on January 18, 1988, and would have had good grounds
for doing so (Tr. 252). He confirmed that the decision to discharge Mr. Mullins for violating his agreement was a joint
decision made with mine superintendent Bill Seik (Tr. 254).
Mr. Compton stated that he also spoke with Mike Cutlip, human
services department, and advised him that Mr. Mullins was under a
last chance agreement, and had exceeded the mine average for
absences (Tr. 255-256).
Mr. Compton confirmed that while other employees may miss
more than their allotted days of sick leave, and may not be
discharged for this, they are not under a last chance agreement
as was Mr. Mullins (Tr. 257-258). He explained the respondent's
absenteeism policy as follows at (Tr. 260-262):
JUDGE KOUTRAS:
Please, Mr. Compton, tell me what a
chronic and excessive absenteeism program is?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
operations.
JUDGE KOUTRAS:

Okay.
Who's the program administrator?
I guess I administrate the program at our
And what is it?

THE WITNESS:
Okay. We orally communicated the policy
to the work force through communication meetings, and
if an employee doesn't ever get above the mine average
then they have no other reason to bring them into them
and counsel them, as in Mr. Mullins' case, which he had

1961

been counseled since 1984, ever since the policy came
into effect.
Each time someone gets above the mine average, and
they get chronic and excessive in the fact that -- like
I said, that for instance, they have a habit of just
getting sick on Monday and Friday. You know, flu when
it hits me, it don't just hit me Monday and Friday.
JUDGE KOUTRAS:

All right.

THE WITNES.S: Before long weekends, or they have a
history of continually being sick or whatever that may
be -JUDGE KOUTRAS:

Then they go into this program.

THE WITNESS: They come into this program, they are
orally counseled. They are counseled until they get to
-- in trying to rehabilitate these people. We make
them aware that they have an absentee program, that
they are constantly above the mine average --

Q. Is this all documented, the warnings that are
given -A. When we orally counsel someone, generally it is put
down in written form, which I think that has been
submitted as evidence.
Mr. Compton reviewed some of Mr. Mullins' absences, and gave
several examples of his discussions and counseling with him
concerning his absences (Tr. 262-263). He characterized the last
chance agreement executed by Mr. Mullins as a "warning," as well
as an agreement on his part, .and he indicated that such agreements are rare, but nonetheless enforceable among the workforce
(Tr. 266-267). He stated that Mr. Mullins has been counseled
about his absences since 1982, and that his situation was handled
on its merits (Tr. 271-273).
Mr. Compton confirmed that he became aware of the union's
"inside campaign" in approximately the middle of 1988, and
believed that it involved "slow down the work force," "slow down
production of the mine, sanotage equipment, whatever" (Tr. 281).
Mr. Compton stated that he did not know whether ventilation
checks were made at every cut of coal because he is not constantly in the mine. He stated that the law does not require
such a check at each cut, but that preshift and onshift examinations are made and recorded in the fire boss books as required by
the law (Tr. 282). He explained the mine production figures (Tr.
283-285).

1962

Mr. Compton confirmed that his foremen are required to
conduct ventilation checks when they have some doubt that the air
in any place is insufficient, and that if a ventilation curtain
is blowing against the rib "you pretty well know you got enough
ventilation" (Tr. 293). He also indicated that air readings may
be taken before a miner machine reaches a working place and that
this does not entail any "lost down time" (Tr. 293). He also
confirmed that he has advised his foremen that they are expected
to make ventilation checks to insure the proper volume of air in
the working place (Tr. 297-298).
Mr. Compton. stated that in approximately April or May, 1988,
foreman Cleveland Newberry mentioned that Mr. Mullins had
requested him to take two or three air readings one evening, and
that Mr. Newberry confirmed that he had taken the readings and
had sufficient volume of air. Mr. Compton stated further that he
instructed Mr. Newberry to comply with Mr. Mullins' requests to
take air readings, to insure that all ventilation curtains are
maintained, and that the proper volume of air is maintained at
the faces.
He also advised Mr. Newberry that he could establish
the proper volume of air before the miner machine arrives at an
area so that it can begin cutting coal upon its arrival.
Mr. Compton believed that this discussion with Mr. Newberry took
place after Mr. Mullins missed work on April 14 and 21, and he
indicated that this is the only discussion he had with
Mr. Newberry concerning this matter (Tr. 300).
Mr. Compton stated that Mr. Mullins was not discharged prior
to May 16, 1988, because it takes 2 weeks after the end of the
month for him to receive the computer print-out record concerning
leave (Tr. 301). He believed that he received the leave information concerning Mr. Mullins during the week of April 9 (Tr. 301).
Mr. Compton stated that he had no knowledge of any citation
received by the respondent in March or April, 1988, concerning
sheared off roof bolts on Mr. Mullins' section, and that he had
no conversations with anyone concerning any violation reports
filed by Mr. Mullins with any federal inspectors (Tr. 302).
Mr. Compton stated that he was not concerned that Mr. Mullins'
insistence on making ventilation checks may have resulted in a
15-minute production delay (Tr. 304). He reiterated that he
advised Mr. Newberry that he could make his ventilation checks as
the miner machine is travelling from one location to another "so
when he comes into the place; he's automatically got his air,"
and also to avoid unnecessary production delays (Tr. 307-309).
Mr. Compton reiterated that in January of 1988, he believed
he had a right to discharge Mr. Mullins for two consecutive days
of AWOL, but that he gave up this right when he entered into the
last chance agreement with Mr. Mullins, and Mr. Mullins gave up
his right to file a grievance when he signed the agreement (Tr.
315). Mr. Compton confirmed that he discharged Mr. Mullins for

1963

failing to live up to his agreement, and because his past history
of absenteeism reflected that he had an absenteeism problem (Tr.
316). He confirmed that he spoke with Mr. Mullins with his union
representative present, and made it clear to him that if he
violated the last chance agreement he would be "in deep trouble,"
and he believed that Mr. Mullins understood this (Tr. 318).
Although Mr. Mullins' absenteeism improved in February and March,
it exceeded the mine average in April, and he then suspended
Mr. Mullins with intent to discharge him, and informed him of his
decision in his office. Mr. Seik and Mr. Mullins' union committeeman Billy Powers were present when he advised Mr. Mullins of
his action, and neither Mr. Mullins or Mr. Powers said anything
about mine safety or safety discrimination at that time (Tr.
319) •
Mr. Compton stated that Mr. Mullins has never complained to
him about any hazards in the mine, and never complained that he
was being treated differently because of the exercise of any of
his safety rights. He confirmed that Mr. Mullins never said
anything to him about requesting his foreman to make ventilation
checks, and that he was unaware that Mr. Mullins may have pointed
out any safety infractions to an MSHA inspector (Tr. 332).
Mr. Compton denied that he suspended and discharged Mr. Mullins
out of retaliation for any of these activities (Tr. 334).
William R. Seik, mine superintendent, confirmed that he
"played a role" in the decision to discharge Mr. Mullins. He
confirmed that he was aware of the fact that a citation was
issued in March or April, 1988, to the respondent because of two
sheared roof bolts in the mine, but denied that he was aware of
the fact that Mr. Mullins had reported this condition to a
federal inspector, or that Mr. Mullins had been assigned to
correct the condition. Mr. Seik also denied that he was aware of
Mr. Mullins' role in requesting ventilation checks every time a
different cut of coal was made on the section (Tr. 357-358).
Mr. Seik confirmed that the only conversation he had with
foreman Brady Colley about the citation concerned Mr. Mullins
leaving his miner helper's position to show the inspector where
the roof bolts in question were located. Mr. Seik stated that he
advised Mr. colley that "he was to keep Connie on his job, and
that Connie would not leave his job without permission" (Tr.
358). Mr. Seik stated that it was his understanding that
Mr. Mullins did not request permission to go with the inspector
and simply "went on his own." Since Mr. Colley was the foreman
in charge, Mr. Mullins should have asked for his permission
before leaving his job. Mr. Seik confirmed that he was aware of
the fact that a citation was issued because he reviewed a copy of
it which was left on his desk by a company safety inspector. He
learned "after the fact" that Mr. Mullins had some involvement in
the issuance of the citation, and he knew about this at the time
the decision was made to discharge him on May 16, 1988. However,

1964

he had no conversation at any time with Mr. Colley concerning
Mr. Mullins' requests for ventilation checks (Tr. 359-360).
Mr. Seik stated that the only discussion he had with
Mr. Compton concerning Mr. Mullins involved Mr. Mullins' past
absenteeism record, and that he said nothing to Mr. Compton about
the roof bolt citation. Mr. Seik confirmed that he had counseled
Mr. Mullins many times about his absenteeism, and that his record
in this regard was reviewed on its own merit and it was not a
"snap decision" (Tr. 365-366).
On cross-examination, Mr. Seik stated that while he discussed the matter of suspension and discharge with Mr. Compton,
the final decision was Mr. Compton's (Tr. 366). Mr. Seik stated
that Mr. Mullins could have been discharged in January, 1988, for
the two consecutive AWOL's which resulted in the last chance
agreement, but that Mr. Mullins was "given a break" at that time
(Tr. 366-367).
Mr. Seik stated that he had no complaint about Mr. Mullins
telling the inspector about the roof bolts, and that this did not
bother him. He acknowledged Mr. Mullins' right to report any
safety violations, and stated that he held no grudge against
Mr. Mullins for reporting the condition (Tr. 368). He stated
that Mr. Mullins should have been aware of the fact that he
simply cannot leave his job without advising his foreman, and
that anyone may make a safety complaint, and that other miners
have done so and not been fired. Miners are free to make safety
complaints to management and to their safety committee (Tr.
369-370).
Mr. Seik confirmed that Mr. Mullins has never made any
safety complaints to him, and has never advised him that he
believed he was being treated differently because of the exercise
of any of his safety rights. He denied that the issuance of the
citation had anything to do with his involvement in the discharge
of Mr. Mullins, and he believed that the monetary fine for the
citation was $20 (Tr. 371).
Findings and Conclusions
In order to establish a prima facie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and "proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Fasula v. Consolidation Coal Company,
2 FMSHRC 2768 (1980), rev'd on other grounds sub nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on

1965

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511
(November 1981), rev'd on other grounds sub nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator
may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no way
motivated by protected activity.
If an operator cannot rebut the
prima facie case in this manner it may nevertheless affirmatively
defend by proving that it was also motivated by the miner's
unprotected activities alone. The operator bears the burden of
proof with regard to the affirmative defense. Haro v. Magma
Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of
persuasion does not shift from the complainant. Robinette,
supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983);
and Donovan v. Stafford Construction Company, No. 83-1566 D.C.
Cir. (April 20, 1984) (specifically-approving the Commission's
Pasula-Robinette test). See also NLRB v. Transportation
Management Corporation,
U.S.
, 76 L.ed.2d 667 (1983),
where the Supreme Court approved the NLRB's virtually identical
analysis for discrimination cases arising under the National
Labor Relations Act.
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC
2508, 2510-11 (November 1981), rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983);
Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984).
As the Eight circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in
NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir.
1965) :
It would indeed be the unusual case in which the
link between the discharge and the [protected] activity
could be supplied exclusively by direct evidence.
Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial
evidence. Furthermore, in analyzing the evidence,
circumstantial or direct, the [NLRB] is free to draw
any reasonable inferences.
Circumstantial indicia of discriminatory intent by a mine
operator against a complain"iiig ·miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator.
In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June
1982), the Commission stated as follows:

1966

As we emphasized in Fasula, and recently
re-emphasized in Chacon, the operator must prove that
it would. have disciplined the miner anyway for the
unprotected activity alone. Ordinarily, an operator
can attempt to demonstrate this by showing, for
example, past discipline consistent with that meted to
the alleged discriminatee, the miner's unsatisfactory
past work record, prior warnings to the miner, or
personnel rules or practices forbidding the conduct in
question. Our function is not to pass on the wisdom or
fairness of such asserted business justifications, but
rather only to determine whether they are credible and,
if so, whether they would have motivated the particular
operator as claimed.
As stated earlier, Mr. Mullins has abandoned his earlier
claim that he was discharged because of his refusal to work
because he had a good faith belief that certain medication he was
taking for a sinus condition would have endangered himself and
his fellow miners. Accordingly, I have made no findings or
conclusions with respect to this abandoned claim and theory of
his case, and have confined my findings and conclusions to
Mr. Mullins' claim that his suspension and subsequent discharge
were motivated by mine management's intent to harass him, or to
retaliate against him, because of his insistence that certain
ventilation checks be made, and because of his alleged reporting
of a safety violation to an MSHA inspector.
Mr. Mullins' Protected Activity
It is clear that Mr. Mullins enjoys a statutory right to
voice his concern about safety matters or to make safety complaints to mine management or a mine inspector without fear of
retribution or harassment by management. Management is prohibited from interfering with such activities and may not harass,
intimidate, or otherwise impede a miner's participation in these
kinds of activities. Secretary of Labor ex rel. Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on
other grounds sub nom. Consolidation Coal Co. v. Marshall, 663
F.2d 1211 (3d Cir. 1981), and Secretary of Labor ex rel.
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981).
Baker v. Interior Board of Mine Operations Appeals, 595 F.2d 746
(D.C. Cir. 1978); Chacon, supra.
With regard to the ventilation air checks, Mr. Mullins
confirmed that prior to the union "work to the letter" campaign,
he had not requested or insisted that checks be made each time a
cut of coal was made. He testified that he began insisting on
ventilation air readings in February, 1988, after being
instructed to do so by his local union, and he admitted that this

1967

was done to put pressure on the respondent in connection with
labor and management's contract negotiations.
Mr. Mullins confirmed that on each occasion when he
requested that ventilation checks be made, his foreman responded
and made the checks. On one occasion when the foreman disagreed
that a ventilation check was necessary, he nonetheless complied
with Mr. Mullins' request and took an air reading. Mr. Mullins
confirmed that with the exception of this disagreement on the
need for a check, his foreman never complained or resisted his
requests for air readings. Mr. Mullins also confirmed that he
got along well with foreman Colley and that his foreman had no
animosity towards him. Mr. Mullins conceded that on each
occasion when he requested a ventilation check, mine management
always complied with his requests and never refused him.
Mr. Mullins testified that in each instance when he
requested a ventilation air reading, he assumed that adequate air
was available, and he could recall no instance where the air
reading taken by his foreman indicated less than adequate air in
the areas tested. Mr. Mullins confirmed that company policy
required preshift air readings, that he was not always present at
the place where air readings were made, and that when he complained about inadequate air ventilation, it was always taken
care of by management within a reasonable time.
Mr. Mullins confirmed that he was not the only miner who
insisted that management operate the mine "to the letter of the
law" as part of the union campaign. He also conceded that no one
from management said anything to him about this campaign, no one
was mad at him, and that no other miner was suspended or discharged during this time.
With regard to his complaint to the MSHA inspector about two
missing roof bolts, Mr. Mullins confirmed that foreman Colley was
not angry with him for informing the inspector about the condition, and said nothing, or did anything, that would lead him to
believe that Mr. Colley held it against him for reporting the
matter to the inspector. Mr. Mullins also confirmed that the
subject of safety was never discussed during his meetings with
Mr. Colley, Mr. Seik, and Mr. Compton concerning his absenteeism,
and he confirmed that he got along well with Mr. Colley.
Although Mr. Colley assigned Mr. Mullins to abate the cited roof
bolt violation, Mr. Mullins could not state for certain that
Mr. Colley assigned him this task in order to punish him for
reporting the condition. Mr. Mullins implied that this was the
case when he testified that other miners were available to abate
the condition, but Mr. Colley selected him for this job.
Mr. Mullins conceded that he was qualified to do the abatement
work in connection with the roof bolt condition in a safe manner,
that he did so, and that abatement work of this kind was work
which he had normally done in the past.

1968

Mine Superintendent Seik testified that he was aware of the
fact that a violation was issued in March or April, 1988, because
of two sheared off roof bolts, but he denied that he was aware of
the fact that Mr. Mullins had reported the condition to the
inspector, at the time the violation was issued, or that
Mr. Mullins had been assigned to abate the condition. Mr. Seik
conceded that he learned about Mr. Mullins' "involvement in the
issuance of the citation" after the violation was issued, and
that he was aware of this when he and Mr. Compton made the
decision to discharge Mr. Mullins on May 16, 1988. Mr. Seik also
denied that had ever discussed Mr. Mullins' ventilation check
requests with Mr~ Colley, or that he discussed the roof bolt
citation with Mr. Compton.
Mr. Seik acknowledged Mr. Mullins' right to make safety
complaints, and he confirmed that other miners have done so and
have not been discharged. Mr. Seik also acknowledged that when
he learned that Mr. Mullins had left his job without the foreman's permission to show the inspector the roof bolt condition,
he informed foreman Colley that Mr. Mullins should not simply
leave his job without telling him. Mr. Seik stated that the fact
that Mr. Mullins informed the inspector about the condition did
not bother him, and that he held no grudge against Mr. Mullins
for doing so. Mr. Seik also stated that Mr. Mullins had never
made any safety complaints to him, and never advised him that he
believed he was being treated differently from other miners
because of the exercise of his safety rights.
General Mine Superintendent Compton testified that he was
aware of the union's "inside campaign," and he confirmed that
when foreman Newberry informed him in April or May, 1988, that
Mr. Mullins requested him to make ventilation checks two or three
times one evening, he instructed Mr. Newberry to comply and to
insure that adequate ventilation was established. Mr. Compton
denied any knowledge of the citation concerning the roof bolts,
and he confirmed that he had no discussion with anyone concerning
Mr. Mullins' reporting of any safety violations to the inspector.
Mr. Compton confirmed that Mr. Mullins never said anything to him
about requesting his foreman to make ventilation checks, that he
was unaware that Mr. Mullins may have pointed out any safety
infractions to the inspector, and he denied that he suspended or
discharged Mr. Mullins out of retaliation for these activities.
After careful consideration of all of the testimony and
evidence adduced in this case, I find no probative or credible
evidence of any harassment, intimidation, or retaliation by mine
management as a result of Mr. Mullins' insistence on the making
of ventilation checks or his complaint to the inspector.
I
reject Mr. Mullins' suggestion that he was assigned to abate the
roof bolt condition out of retribution for his making the complaint, and I find no credible basis for concluding that his

1969

foreman assigned him this task to punish him for making the
complaint. Mr. Mullins conceded that he was qualified and able
to do this job safely, that such abatement work was something
that he would normally do as part of his job, that he gotten
along well with his foreman, and that his foreman who assigned
him the task displayed no displeasure or animosity towards him
when he assigned him the abatement work.
The record establishes that mine management responded in a
positive way to Mr. Mullins' requests for ventilation checks, and
Mr. Mullins conceded that management always complied with his
requests, including the one time that he and his foreman disagreed as to the need for a check.
I take note of the fact that
although other miners were involved in the "work to the law"
campaign, they were not disciplined or otherwise interfered with
in any way because of these activities.
The record establishes that Mr. Mullins' ventilation concerns were never discussed or mentioned during the meetings
between Mr. Mullins and mine management, concerning his attendance record, and there is no evidence that Mr. Mullins ever made
any safety complaints to Mr. Seik or to Mr. Compton, the two
individuals who made the decision to suspend and discharge him.
There is also no evidence that Mr. Mullins ever informed Mr. Seik
or Mr. Compton that he believed he was being put upon because of
his insistence in making daily ventilation checks, and
Mr. Mullins himself conceded that mine management responded
promptly to his requests, and that his foremen displayed no
animosity towards him.
He also conceded that his foreman did not
appear angry with him for complaining to the inspector about the
roof bolt condition, and I find no evidence of any harassment or
disparate treatment of Mr. Mullins by his foremen because of his
complaint to the inspector or his insistence that ventilation
checks be made.
The record reflects that Mr. Mullins was suspended and
discharged on May 16, 1988. Mr. Mullins suggested that his
requests to foreman Newberry to take air readings 1 or 2 weeks in
April before his discharge, prompted his suspension and discharge.
However, Mr. Mullins' confirmed his insistence on making
ventilation checks began as early as February, 1988, yet no
action was ever taken against him, and there is no evidence that
Mr. Newberry was in any way connected with the decision to discharge him.
·
The record also reflects that Mr. Mullins' complaint to the
inspector concerning the roof bolt condition was made sometime in
March, 1988, 2 months before his discharge. Mr. Mullins confirmed that foreman Colley displayed no animosity towards him for
calling the condition to the attention of the inspector, that he
got along well with Mr. Colley, and that Mr. Colley never
harassed him or treated him badly. There is also no evidence

1970

that Mr. Colley had nothing to do with the decision to discharge
Mr. Mullins.
The evidence establishes that at the time the decision was
made to suspend and discharge Mr. Mullins, Mr. Seik was aware of
the fact that Mr. Mullins spoke with the inspector about the roof
bolt violation, and that Mr. Compton was aware of the fact that
Mr. Mullins had requested daily ventilation checks. However,
Mr. Seik denied that he ever discussed the roof bolt violation
with Mr. Compton, and Mr. Compton denied any knowledge of the
violation or Mr. Mullins' conversation with the inspector. The
record reflects .that Mr. Mullins never complained to Mr. Seik or
Mr. Compton about safety matters, and there is no evidence that
Mr. Seik or Mr. Compton harbored any ill will towards Mr. Mullins
because of his safety concerns. Based on the evidence adduced in
this case, I conclude and find that any concerns that Mr. Seik
and Mr. Compton may have had with regard to Mr. Mullins focused
on his work attendance and not on his safety related activities.
Although Mr. Seik's and Mr. Compton's awareness of
Mr. Mullins insistence on making ventilation checks, and his
contact with the MSHA inspector who issued the roof bolt violation raises an inference that their decision to suspend and
discharge Mr. Mullins may have been tainted or influenced by
Mr. Mullins' safety related activities, having viewed Mr. Compton
and Mr. Seik during the course of their testimony, I find them to
be credible witnesses, and I believe their denials that the
decision to suspend and discharge Mr. Mullins had anything to do
with his safety related activities, or that this decision on
their part was motivated or made to retaliate against Mr. Mullins
for insisting on ventilation checks or bringing the roof bolt
condition to the attention of the inspector.
In short, I conclude and find that any inference of discriminatory intent by the
respondent in connection with Mr. Mullins' suspension and discharge has been rebutted by the respondent's credible evidence
which I believe establishes that Mr. Mullins was suspended and
discharged because of his poor work attendance record and
absenteeism.
The Respondent's Motivation for the Suspension and Discharge of
Mr. Mullins.
In his posthearing brief, Mr. Mullins' counsel asserts that
Mr. Mullins' report of a sarety violation to a Federal mine
inspector is protected activity under the Act.
Counsel also
asserts that Mr. Mullins' insistence that ventilation checks be
made every time the continuous miner was moved was reasonably
calculated to apprise him of information essential to a determination as to whether or not the respondent was in compliance
with the federal laws mandating adequate ventilation, and was
part and parcel of his right to a safe work environment and of

1971

his right to notify a federal inspector of an unsafe condition
should the ventilation be deficient.
The focus of counsel's argument is in on the "last chance
agreement" executed by Mr. Mullins. Counsel disagrees with the
respondent's contention that the agreement gave the respondent
the right to terminate Mr. Mullins, and that he would have been
terminated even had he not engaged in the activities of reporting
an unsafe condition to a federal inspector and insisting upon
repetitive ventilation readings on every occasion that the miner
was moved.
In support of his argument concerning the agreement in
question, counsel takes the position that the document identified
as the agreement contained no agreement by Mr. Mullins to do
anything, and in the absence of some express promise by
Mr. Mullins to do or not do a certain act, there was no contract.
Counsel notes that the agreement did not state that Mr. Mullins
would be terminated if his absenteeism rate exceeded the mine
average, but simply stated that "· . . further disciplinary
action up to and including discharge will be taken." Counsel
concludes that this left it up to the respondent to decide what
action was appropriate given the nature of the absence and the
surrounding circumstances.
Counsel asserts that the unfair and harsh nature of the
respondent's absenteeism policy is apparent in this case, and the
fact that it is not a written policy indicates that it is particularly susceptible to arbitrary application.
Counsel argues
that it is not probable that the respondent's decision to discharge Mr. Mullins, the most severe action available, was not
motivated to any significant extent by his protected safety
activities.
Counsel submits that this case is not one of
happenstance or coincidence, and that it is a case of "enemy
action" by an employer who determined that Mr. Mullins' exercise
of protected activities was an annoyance and a nuisance.
Counsel
concludes that the facts in this case supports the contention
that Mr. Mullins was discharged because of the fact that "he was
at war" with the respondent over safety issues, and to assume
otherwise is unreasonable.
I believe that the thrust of Mr. Mullins' complaint lies in
his dispute with the respondent's leave and absenteeism policy,
the legality of the last cnarice agreement, and Mr. Mullins'
belief that the agreement and absenteeism policy is patently
unfair and arbitrary, and has been used by the respondent as a
pretext to support his suspension and discharge for engaging in
protected activity. The record establishes that Mr. Mullins
filed a grievance on these issues and proceeded to arbitration.
In a written decision issued on October 12, 1988, the arbitrator
denied his claims and ruled against him (Joint Exhibit 20) . As a
result of this unfavorable decision, Mr. Mullins, by and through

1972

his UMWA union, filed an unfair labor practice charge against the
respondent with the NLRB, and it was likewise denied after the
NLRB declined to issue a complaint (Joint Exhibit 21).
Although I am not bound by decisions of arbitrators, I may
nonetheless give deference to an arbitrator's "specialized
competence" in interpreting any applicable labor-management
agreements.
Chadrick Casebolt v. Falcon Coal Company, Inc.,
6 FMSHRC 485, 495 (February 1984); David Hollis v. Consolidation
Coal Company, 6 FMSHRC 21, 26-27 (January 1984); Secretary on
behalf of Fasula v. Consolidation Coal Co., 2 FMSHRC 2786
(October 1980), rev'd on other grounds sub nom.
Consolidation
Coal co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981).
I take note of the fact that the union's position before the
arbitrator with respect to the last chance agreement was that
"The company is discriminating against the Grievant for his union
activities at the mine. The Grievant is being prosecuted to the
fullest for no other reason."
(Pg. 6, arbitrator's decision).
The arbitrator found that the last chance agreement was valid and
reasonable on its face, that the respondent treated Mr. Mullins
fairly and properly, that there was no disparate treatment of
Mr. Mullins, and he rejected the claim that the respondent's
action was tainted by unlawful animus. The arbitrator concluded
that there was no reasonable basis for him to conclude that the
motivation of the respondent in discharging Mr. Mullins was
something other than the proven fact that he violated the terms
of his agreement with respect to absenteeism.
I also take note of the fact that at the time Mr. Mullins
initiated his grievance on May 24, 1988, his sole contention was
that he was unjustly discharged by the company's absentee policy
(Joint Exhibit 18). The Union's position before the arbitrator
does not include a claim that Mr. Mullins' safety activities
prompted his discharge, and although the arbitrator's decision
makes reference to testimony by Mr. Mullins during the arbitration hearing that he had arguments with his foreman Colley over
safety issues in connection with adequate air at the face, the
arbitrator concluded that the evidence "did not establish a
causal relationship between the safety issues raised by the
Grievant and his supervisor and action taken by the General Mine
Superintendent for his failure to come to work often enough," and
that the superintendent "acted to enforce an attendance settlement agreement which was fairly arrived at and which was not
ambiguous" (Pgs. 13·, 14, arbitrator's decision).
I also take note of the NLRB's decision not to initiate an
unfair labor practice case against the respondent, and the NLRB's
conclusion that its investigation failed to establish that the
respondent was unlawfully motivated in discharging Mr. Mullins,
and that the evidence adduced by the NLRB established that

1973

Mr. Mullins discharge "was with cause, i.g., poor attendance"
(See NLRB letter of November 25, 1988, Joint Exhibit 21).
The respondent's absentee policy, including the use of last
chance agreements, has been previously litigated before the
Commission in a discrimination proceeding heard and decided by
Judge Weisberger on February 1, 1989. In Lindia Sue Frye v.
Pittston Coal Group/Clinchfield Coal Company, 11 FMSHRC 187
(February 1989), the complaining miner asserted that she was
discharged for making safety complaints and for refusing to work
under conditions which she believed were unsafe. Judge
Weisberger's decision reflects that the miner was counseled with
respect to her absentee rate, and that a proposal was made by the
respondent in that case to suspend and discharge her due to
excessive absenteeism. However, she avoided this action by
executing a last chance agreement that she would not exceed the
mine absentee rate in any month in the next 12 months. When she
failed to keep her agreement and exceeded the absentee rate seine
2 months after the agreement was made, she was suspended and
discharged. Judge Weisberger dismissed her complaint after
concluding and finding that the sole reason for the discharge was
excessive absenteeism, that the discharge was not motivated in
any part by any protected activities, and that the action taken
by the respondent was clearly a prerogative of management.
The evidence in the instant case establishes that
Mr. Mullins has undergone counseling concerning his absenteeism
periodically since 1982 (Joint Exhibits 6 through 15). Although
he stated that he was "somewhat familiar" with the respondent's
absenteeism policy, and that it is not reduced to writing or
posted on the mine bulletin board, I am not convinced that he was
ignorant of the policy or did not understand it. Mr. Mullins
admitted that he had been counseled by mine management on many
occasions concerning his absenteeism, that management had
expressed their concern to him in this regard during the past
3-year prior to his discharge, and that he had meetings with his
foreman and mine management concerning his work attendance
record.
Mr. Compton testified that he could have fired Mr. Mullins
in January, 1988, for two consecutive days of AWOL, but did not
do so because the respondent and Mr. Mullins executed the last
chance agreement. At the time the agreement was executed on
January 18, 1988, Mr. Mullfns admitted that he knew he was in
serious trouble, and that miners have been discharged for two
consecutive days of AWOL.
Immediately prior to the AWOL days of
January 15 and 16, 1988, he was talked to by foreman Colley and
superintendent Seik about missing work (Joint Exhibit 13). After
returning to work on January 18, 1988, Mr. Mullins was summoned
to Mr. Compton's office for a meeting with Mr. Compton and
Mr. Seik, and he appeared with his union representative to discuss his absenteeism.

1974

Mr. Mullins admitted that he was under the impression at the
meeting with Mr. Seik and Mr. Compton that the respondent was
ready to take· some disciplinary action against him, and that he
was aware of the fact that the respondent could have fired him
for being AWOL but was going to give him a last chance (Tr.
103-104). A memorandum of that meeting, which is signed by
Mr. Mullins, reflects that he was informed that he would not be
suspended or discharged for his AWOL's, but that due to his
excessive absenteeism, he was further informed that he must stay
within the mine average of unallowed absences, and that if he did
not, he would be subject to further disciplinary action, including a discharge (Joint Exhibit 14).
Although Mr. Mullins claimed that he did not believe that he
had made any promises concerning his absenteeism to management
when he left the meeting with Mr. Seik and Mr. Compton, he
admitted that "he got the message," and understood that if he
missed anymore days from work within the ensuing 180 days, he
would be discharged (Tr. 108). Mr. Mullins' claim that he understood "non-allowed absences" to mean only AWOL's or nonexcused
absences, and that the mine average absenteeism formula used by
the respondent only pertained to absences not allowed under the
labor/management contract, is rejected.
I find no credible
evidence to suggest or support any conclusion that Mr. Mullins
was confused or unsure about the respondent's method for calculating a mine absentee average for purposes of its counseling
program.
The documentary evidence detailing Mr. Mullins• past
counseling sessions concerning his absences from work all make
reference to this policy, including references to absentee averages, and assurances by Mr. Mullins that "he would get his rate
down," that "he understood the absentee plan . • . and would try
to improve," and "do better in the future" (Joint Exhibits 9, 11,
12, 13) .
Superintendent Compton testified that under the respondent's
chronic and absentee policy, absences due to illness documented
by a doctor's excuse may still be considered AWOL absences in the
case of employees who have chronic absentee records or who have
failed to adhere to last chance agreements. He cited at least
two employees who were suspended with intent to discharge for
violations of the respondent's policy under circumstances similar
to Mr. Mullins' case, and confirmed that no one has ever been
discharged simply because of "being sick, but because of a combination of absences. Mr. Compton stated that the last chance
agreement was discussed with Mr. Mullins and that he understood
its conditions.
Mr. Compton conceded that but for Mr. Mullins' absences on
April 14 and 20, 1988, which placed him over the mine average, he
would not have been discharged. After careful review of
Mr. Compton's explanation of the respondent's absentee policy,

l,9 7 5

including the method used for calculating an employee's average
rate of absences, I find it to be plausible and reasonable and I
cannot conclude that it was applied arbitrarily in Mr. Mullins'
case. I further conclude and find that Mr. Mullins understood
the respondent's policy and ground rules concerning absenteeism,
and his assertions to the contrary are rejected.
On the basis of the record in this case, I conclude and find
that Mr. Mullins had been subjected to repeated counselling
concerning his absences, that the respondent had shown leniency
towards him by not discharging him earlier, and that he entered
into the last chance agreement knowing the risks and implications
if he failed to adhere to the agreement. His failure to do so
resulted in his suspension and discharge, and I conclude that the
respondent's action in this regard constituted a reasonable
exercise of its managerial authority over its workforce.
I
further conclude and find that the reason for Mr. Mullins' discharge was his failure to live up to his last chance agreement
with the respondent, and that the respondent's motivation in
discharging him had nothing to do with his insistence on making ·
ventilation checks or informing the inspector about a roof-bolt
condition. As stated by the Commission in Bradley v. Belva Coal
Company, 4 FMSHRC 982 (June 1982), citing its Pasula and Chacon
decisions, supra, "* * * Our function is not to pass on the
wisdom or fairness of such asserted business justifications, but
rather only to determine whether they are credible and, if so,
whether they would have motivated the particular operator as
claimed." On the facts presented in Mr. Mullins' case, I conclude and find that the respondent's stated reason for discharging Mr. Mullins is both credible and reasonable in the
circumstances presented.
ORDER
In view of the foregoing findings and conclusions, and on
the basis of a preponderance of a:l of the credible testimony and
evidence adduced in this case, I conclude and find that
Mr. Mullins has failed to establish that the respondent has
discriminated against him or has otherwise harassed him or retaliated against him because of the exercise of any protected rights
on his part. Accordingly, his complaint IS DISMISSED, and his
claims for relief ARE DENIED.

/~Fl!f
ti. It~
~o"ige/i..- Koutf~~
Administrative Law Judge

1976

Distribution:
Jerry o. Talton, Esq., 222 East Main Street, Front Royal, VA
22630 (Certified Mail)

w. Challen Walling, Esq., Penn, Stuart, Eskridge & Jones,
306 Piedmont Avenue, P.O. Box 2009, Bristol, VA 24203
(Certified Mail)
/fb

1977

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

OCT 4 1989
...
ROCHESTER & PITTSBURGH COAL
CONTEST PROCEEDINGS
COMPANY,

Contestant

.

Docket No. PENN 88-284-R
Order No. 28889021 7/14/88

v.
SECRETARY OF LABOR,
MINE SAFETY AND HE.ALTH
ADMINISTRATION CMSHA),
Respondent

Docket No. PENN 88-285-R
Order No. 28889031 7/14/88

.
.

Greenwich Collieries
No 2. Mine
Mine ID 36-02404
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 89-72
A.C. No. 36-02404-03740

v.
ROCHESTER & PITTSBURGH COAL
COMPANY,
'Respondent

Greenwich Collieries
No. 2 Mine

:

DECISION
Appearances:

Before:

Joseph A. Yuhas, Esq., Greenwich Collieries,
Ebensburg, Pennsylvania for Contestant/Respondent.
Paul D. Inglesby, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Respondent/Petitioner.

Judge Maurer
STATEMENT OF THE CASE

Contestant, Rochester & Pittsburgh Coal Company CR&P), has
filed notices of contest challenging the issuance of Order
No. 2888902 (Docket No. PENN 88~284-R) and Order No. 2888903
(Docket No. PENN 88-285-R) at its Greenwich No. 2 Mine. The
Secretary of Labor (Secretary> has filed a petition seeking civil
penalties in the total amount of $2,200 for the violations
charged in the above two contested orders.
Pursuant to notice, these cases were heard in Pittsburgh,
Pennsylvania on April 27, 1989. John L. Daisley testified for

1978

the Secretary. He was the only witness. After the Secretary
rested, R&P moved that the two orders at bar be modified to
citations issued under§ 104(a) of the Act and affirmed as such
and that an appropriate civil penalty be assessed. I granted
that motion on the record at the hearing. Pursuant to the Rules
of Practice before this Commission, this written decision
confirms the partial bench decision I rendered at the hearing as
well as disposes of the remaining issues in the cases.
Issues
The issues presented in these proceedings are Cl) whether the
conditions or practices cited by the inspector constitute
violations of the cited mandatory safety standards, (2) the
appropriate civil penalties to be assessed for the violations,
taking into account the statutory civil penalty criteria found in
section llO(i) of the Act; and (3) whether the violations were
"significant and substantial." Additional issues include the
inspector's "unwarrantable failure" findings with respect to the
two contested section 104(d)(2) orders.
Stipulations
I

The parties have agreed to the following stipulations, which
accepted (Tr. 4-6):
1. Greenwich Collieries is owned by Pennsylvania
Mines Corporation and managed by Respondent Rochester
and Pittsburgh Coal Company.
2. Greenwich Collieries is subject to the
jurisdiction of the Federal Mine Safety and Health Act
of 1977.
3. The Administrative Law Judge has jurisdiction
over these proceedings.
4. The subject Orders were properly served by a
duly authorized representative of the Secretary of
Labor upon an agent of the respondent at the dates,
times and places stated therein, and may be admitted
into evidence for the purpose of establishing their
issuance, and not for th~ ~ruthfulness or relevancy of
any statements asserted therein.
5. The respondent demonstrated good faith in the
abatement of the orders.

1979

6. The assessment of a civil penalty in this
proceeding will not affect respondent's ability to
continue in business.
7. The appropriateness of the penalty, if any,
to the size of the coal operator's business should be
based on the fact that:
a. The respondent company's annual
production tonnage is 10,554,743~
b. And that the Greenwich Collieries No. 2
Mine's annual production tonnage is 1,195,419.
8. Greenwich No. 2 Mine was assessed 879
violations over ·1,224 inspection days during the 24
months preceding the issuance of the subject order.
9. The parties stipulate to the authenticity of
their exhibits, but not to their relevance, nor to the
truth of the matters asserted therein.
10. The respondent admits to at least a recording
violation of 30 C.F.R. § 75.305 in each of the cited
instances.
Discussion
R&P stipulated to the fact of violation concerning both of
the orders at bar, at least insofar as a recording violation is
concerned. Quite candidly, the company is also of the opinion
that the examinations cited in these two orders were not in fact
done. However, they were not willing to stipulate to that as a
fact because they were unable to determine whether the
examinations were or were not done.
Section 104(d)(2) Order No. 2888902 was issued to the
operator on July 14, 1988, cites a violation of 30 C.F.R.
§ 75.305 and the condition or practice states as follows:
The required weekly examination for hazardous
conditions for P9 intake, P-9 right and left returns
including bleeder rooms,· and the alternate escapeway
from P-9 to P-20 for July 6, 1988, was recorded as
being made by Joseph D. Mantini, mine examiner.
However, an inspection of this area on 7-13-88 did not
reveal any evidence, dates, times, and initials of the
physical presence of the examiner in these areas. The
last date of examination was 6-29-88-JM~ The person

1980

making such examinations and tests shall place his
initials and the date and time at the place examined.
Section 104Cd)(2) order No. 2888903 was likewise issued on
July 14, 1988, cites a violation of 30 C.F.R. § 75.305 and
alleges as follows:
The required weekly examination for hazardous
conditions for main S return from regulator to 23
La Bour pump, alternate escapeway from 23 La Bour pump
to T4, BE points in T2 and T-4 intake and return
entries for July 7,1988, was recorded as being made by
Joseph D. Mantini, mine examiner. However, an
inspection of this area on 7-14-88 did not reveal any
evidence of dates, times, and initials of the physical
presence of the examiner in these areas. The last date
of examination of these areas was 6-30-88 J.M. The
person making such examinations and tests shall place
his initials and the date and time at the places
examined.
Inspector Daisley testified that at the time he made his
inspections of the above two cited areas, he could not find
any times, dates or initials as evidence that the weekly
examination for hazardous conditions was conducted for the week
stated in the orders. This establishes in my mind a rebuttable
presumption that the required inspections were not in fact done.
This presumption is not rebutted in the record and therefore I am
satisfied that the inspections were not accomplished and the
Secretary has established the cited violations in both instances
under consideration herein.
Furthermore, the failure to examine the cited areas for
almost two weeks when some of these areas were designated as
alternate excapeways and could very well have been blocked by
roof falls or accumulations of water is a very serious situation.
Also, there could have been a dangerous undetected accumulation
of methane which is a potential hazard for a mine fire or
explosion. The inspector was of the opinion that this practice
he cited with regard to the failure to examine significantly and
substantially compromised the health and safety of the miners. I
concur and find both of these proven violations to be significant
and substantial violations of .. the cited mandatory standard and
serious. See Secretary v. Mathies Coal Co., 6 FMSHRC 1 (1984).
I disagree with the Secretary, however, on the issue of
unwarrantability. Mr. Mantini, a rank-and-file miner was
assigned the responsibility to examine the cited portions of the
mine and as I found above, he did not perform the examinations.
However, Mr. Mantini did certify that he had performed the

1981

examinations in the mine examiner's book and as the inspector
testified, as far as the operator is concerned that entry would
indicate tha·t Mantini had actually performed the examinations.
The mine examiner's book was falsified, apparently by
Mr. Mantini, and unbeknownst to the operator.
Inspector Daisley very candidly admitted that in his opinion
management was not aware of the violation and that they were, in
effect, entitled to rely on the mine examiner's book. As far as
management was concerned, the required examinations were done.
The inspector also testified that in his opinion, excluding the
intentional misconduct of Mr. Mantini, no other employee of R&P
was in any manner negligent concerning this violation.
In several decisions concerning the interpretation and
application of the term "unwarrantable failure," the Commission
has further refined and explained this term, and concluded that
it means "aggravated conduct, constituting more than ordinary
negligence, by a mine operator in relation to a violation of the
Act." Emery Mining Corporation, 9 FMSHRC 1997 (December 1987);
Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December 1987);
Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 249
(March 1988).
The Secretary urges that the misconduct of Mantini be
imputed to the mine operator in this instance because even though
Mantini is a rank-and-file miner, he was given mine examiner
status by the operator, at least for the limited period of time
covering "miners vacation," and essentially became the operator
while performing the certified mine inspections.
In this case, Mantini's misconduct was willful and
intentional. He did not perform the required examinations, he
knew he did not, and yet he certified in the operator's official
records that he had performed them. I have a lot of trouble with
the idea that a rank-and-file employee's intentional misconduct
is imputable to management as their own "aggravated conduct"
when there is absolutely no evidence in the record that any
member of mine management actually knew or even should have known
that the examinations were not done. The inspector admitted as
much. Therefore, I reject the notion that a rank-and-file
miner's intentional misconduct is per se imputable to the
operator simply because the ··ope.rater has appointed that
individual to be a mine examiner.
This case is reminiscent of that line of Commission
precedent where it has been repeatedly held that an operator is
liable for violations of the Act and the mandatory standards
promulgated thereunder that are attributable to the
"idiosyncratic and unpredictable" acts of its rank-and-file

1982

employees.
I believe this language includes intentional
violations committed by its employees, and R&P is responsible
therefore for the two violations at bar. However, with regard to
unwarrantability findings, I believe the requisite "aggravated
conduct" must be the operator's conduct, not the rank-and-file
miner's. For this reason, I modified the two§ 104(d)(2) orders
at bar to citations issued under § 104(a) of the Act.
For penalty assessment purposes, it is settled that
rank-and-file employee negligence is not imputable to the
operator. The operator's negligence in these instances must be
determined by an examination of the operator's own conduct.
Secretary of Labor v. Southern Ohio Coal Co., 4 FMSHRC 1459,
1463-65 (August 1982). In this case, I find the evidence of
operator negligence established in the record to be nil.
On the basis of the foregoing findings and conclusions,
including the Stipulations accepted herein, and taking into
account the requirements of section llOCi> of the Act, I conclude
and find that a civil penalty assessment of $450 for each of the
two violations found herein is appropriate and reasonable.
ORDER
It is ORDERED that Order Nos.
MODIFIED to § 104(a) citations.

2888902 and 2888903 be

It is further ORDERED that the operator pay $900 within 30
days from the date of this decision.

urer
ative Law Judge
Distribution:
Joseph A. Yuhas, Esq., Greenwich Collieries, P.O. Box 367,
Ebensburg, PA 15931
Paul D. Inglesby, Esq., Office -of the Solicitor, u.s. Department
of Labor, 3535 Market St., Room 14480, Philadelphia, PA 19104
(Certified Mail)
/ml

1983

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

22041

OCT 6 1989
KENNETH HOWARD,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. KENT 89-2-D
BARB CD 88-56

B & M TRUCKING,
Respondent

!.\lo. 2 Mine
DECISION

Appearances:

Before:

Phyllis L. Robinson, Esq., Hyden, Kentucky for
Complainant;
W. Henry Lawson, Esq., Pineville, Kentucky for
Respondent.

Judge Melick

This case is before me upon the Complaint of
Kenneth Howard under section 105(c)(3) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., the
"Act," alleging unlawful discharge by the B & MTrucking
Company, Inc., (B&M) in violation of section 105(c)(l) of the
Act.~/

!I Section 105(c)(l) of the Act provides as follows:
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any
miner, representative of miners or applicant for
employment in any coal or other mine subject to
this. Act because such miner, representative of
miners or applicant for employment, has filed or
made a complaint under or related to this Act,
including a complaint notifying the operator or the
operator's agent, or the representative of the
miners at the coal or other mine of an alleged
danger or safety or health violation in a coal or
other mine or because such miner, representative of
ininers or applicant for employment is the subject
of medical evaluations and potential transfer under
a standard published pursuant to section 101 or
because ·such representative of miners or applicant
for employment has instituted or caused to be
instituted any proceedings under or related to this
Act or has testified or is about to testify in any
such proceeding, or because of the exercise Dy such
miner, representative of miners or applicant for
employment on beh~lf of h~msel~ or others of any
statutory right atforded oy this Act.
1984

Counsel for Mr. Howard preliminarily claimed that
Mr. Howard was fired on August 10, 1988, because he had
requested training on a front-end loader he was directed to
operate as an employee of B&M and because he later complained
that he had not received such training.2/ However in his
testimony at hearing Howard denied any iuch claims. Howard
further admitted at hearing that when he first reported for
work as a truck driver for B&M, Mitch Sturgill, the President
of B&M, told him that it would be necessary for him to load
the coal himself with the front-end loader and that he told
Sturgill, that he would try. Howard further concedes that he
never complained to anyone about health or safety concerns
and admits that he never even "came close to" injuring anyone
while operating the front-end loader. Howard maintains only
that he told Sturgill that he was "having trouble" operating
the loader and, after three weeks 0n the job, told Sturgill
that he would no longer operate the loader.~/
Sturgill testified that when he first telephoned Howard
about working as a truck driver for E&M he told him "we have
to load our own coal". This was required under the B&M
haulage contract and, accoraing to Sturgill, it is not
unusual in eastern Kentucky for the truck drivers to have to
load their own coal with a front-end loader.
Indeed Howard's
father-in-law had been working as a truck driver for B&M
before Howard was hired and had been loading his own coal in
this manner.
It is clear from this evidence then that Howard
knew when he was hired that his dutied included operating a
front-end loader. According to Sturgill, Howard told him
before he was hired that he could "run a loader" and
commented only that he was "not the best".
Indeed Sturgill

2/ There is evidence that the Complainant did in fact
proviae information to the Federal Mine Safety and Health
Administration leading to the issuance by that agency of a
citation to B&M for failing to provide safety task training
to Howard. However it is clear that that report was made
subsequent to the discharge here at issue.
It is accordingly
not relevant to these proceedings.
3/ While Sturgill thought that Howard may have complained
about his exposure to coal dust while operating the loader,
Howard maintains that he only complained about the dust to
"Skeeter", an employee of Four-Aces Coal Company, who would
then spray the coal with water to keep the dust down.
In any
event is is clear within the evidentiary framework of this
case that no retaliatory motive was based upon any such
complaint.

1985

later observed Boward loading his truck and found that he did
a "good job" and was "normal" but a "little slower". Howard,
who claimed at hearing that he had never previously operated
a loader, admitted that he never asked any questions about
how to operate the loader even though Sturgill was present
when he began work.
After three weeks of loading his own coal Howard
suddenly refused to continue and Sturgill himself then loaded
the trucks for 4 1/2 days. Around this time Sturgill also
found that Howard was spilling large amounts of coal from his
truck onto the public hignway and was not cleaning it up.
This was in violation of B&M's contract and resulted in a
loss to B&M of one-half day of work while it was cleaned up.
According to Sturgill, continued spillage could have resulted
in the termination of the B&M haulage contract. Sturgill had
previously warned his drivers, including Howard, that they
were responsible for cleaning up their own spillage.
Sturgill testified that he decided to fire Howard at
this time because of Howard's failure to clean up his coal
spillage and because of his refusal to load his own truck.
Sturgill testified that he could not afford at that time to
hire a separate loader operator. I find Sturgill's testimony
in this regard to be credible.
The credible evidence shows that Howard did not refuse
to operate the loader until three weeks after he began
working and then, by his own admission, simply refused to
operate it because he was "having trouble". Howard admits
that he never asked for training and it did not appear to
Sturgill that he needed it. Accordingly I cannot find that
either a safety or a health related complaint was made in
connection with the operation of the loader. Moreover since
no health or safety related basis for a "work refusal" was
ever communicated to any agent of the operator, the
Complainant could not in any event sustain his burden of
proving that he engaged in a protected work refusal.
Conaster v. Red Flame Coal Co., Inc., 11 FMSHRC 12 (1989).
See also Sim~son v. FMSHRC, 842 F.2d 453 (D.C. Cir. 1988) and
Sammons v. Mine Services Co., 6 FMSHRC 1391 (1984).
Indeed
Mr. Howard has in this case failed to sustain his burden of
proving that he engaged in any activity protected by the Act
and his case must accordingly be dismissed.

1986

ORDER
Discrimination Proceeding Docket No. KENT 89-2-D is
DISMISSED.

\./-

ick
Admini trative
(703) 7 6-6261
Distribution:
Phyllis L. Robinson, Esq., P.O.
(Certified Mail)

I

Judge

Bo~ 952, Hy~~n, KY 41749
_I

W. Henry Lawson, Esq., P.O. Box 449, Pineville, KY
(Certified Mail)
nt

1987

40977

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

OCT 10 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF HARRY RAMSEY,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 88-246-DM
MD 87-51

v.

Colosseum Mine
INDUSTRIAL CONSTRUCTORS CORP.,
Respondent
DECISION
Appearances:

Before:

Norman J. Reed, Esq. and Nathaniel J. Reed, Esq.
Las Vegas, Nevada,
for Complainant1
William T. Murphy, Esq., Washington Corporations,
Missoula, Montana,
for Respondent.

Judge Morris

This case involves a discrimination complaint originally
filed by the Secretary of Labor on behalf of complainant pursuant
to the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seq.
After notice to the parties a hearing on the merits was held
in Las Vegas, Nevada on January 31, 1989. The issue of attorney
fees was reserved for a later date.
In an interim order issued August 2, 1989, published at
11 FMSHRC 1585, the presiding judge found in favor of complainant.
The interim order provided:
1.

For the reinstatement of complainant.

2. For back pay with interest from August 13, 1987,
until complainant was reinstated.
3. The parties were further directed to stipulate, if
possible, on the issue of 'the amount of damages and attorney fees.
If the parties could not agree then a hearing would be held on
October 24, 1989.

1988

On October 4, 1989, the parties filed a document entitled
"Stipulation On Damages." The document reads as follows:
·The undersigned parties to Mining Safety and
Health Administration Docket No. WEST 88-246-DM
involving Harry Ramsey and Industrial Constructors
Corporation (hereinafter ICC) stipulate and agree
to certain facts for purpose of settling the record
on the amount of Mr. Ramsey's past, present and
future damage claim. This agreement pertains to
amount only and is not an agreement as to entitlement thereto.
Both parties preserve the right to appeal, and
do not waive their right to contest the issues in
the case, except that if ICC's liability to pay
wages for any time period is affirmed in any appeal,
the damages are set as follows:
1. Mr. Ramsey has waived reinstatement, and
the parties agree that Mr. Ramsey declined reinstatement as of August 31, 1989, and that Mr. Ramsey's
wage loss stopped accruing on that date.
2.
The night shift at the Colosseum Mine
terminated September 25, 1987, and thus the wages
stated herein are divided into wages loss accumulated before said date and losses accumulated
after said date. Wages before said date include
overtime.
3. Mr. Ramsey's wage loss from August 13,
1987, to September 25, 1987, if affirmed, is:
a.

$2,631.01 in regular time wages,
after payroll deductions.

b.

$943.23 in overtime wages, after
payroll deductions.

c.

$709.71 in interest to August 31,
1989, on regular time and overtime
wages.

d.

$226.00 in 40l(k) payments.

1989

4.
ICC's liability from September 25, 1987,
to August 31, 1989, if affirmed, is:
a.

$37,137.00 in regular time wages,
after payroll deductions.

b.

$3,408.00 in interest to August 31,
1989, on regular time wages.

c.

$2,994.00 in 40l(k) payments.

5. Attorney fees are set in the amount of
$15,375.00 for attorney fees up to September 27,
1989. Any fees incurred by Mr. Ramsey in an
appeal or post trial work after September 27, 1989,
shall be in addition to the above, if the court
or Review Board allows said fees.
6.

Mr. Ramsey's trials costs are $1,556.00.

7.
Interest accumulated on the above amounts
after August 31, 1989, will be added to the above
amounts up to time of collection, if allowed by
the Court or Review Board.
Based on the record herein and the stipulation filed
October 4, 1989, I hereby enter the following:
ORDER
1. The order reinstating complainant heretofore entered by
the presiding judge is vacated.
2.
Respondent is ordered to pay to complainant the following amounts for lost wages and interest:
a. For the period from August 13, 1987, to
September 25, 1987, the total sum of $4,509.95.
b. For the period from September 25, 1987,
to August 31, 1989, the sum of $43,539.00.
3.
Respondent is further ordered to pay to complainant
the sum of $15,375.00 as and for attorney fees incurred by
complainant until and including September 27, 1989.

1990

4. Respondent is further ordered to pay to complainant
the sum of $1,556.00 as and for trial costs.
5. After August 31, 1989, interest shall accrue on the
above amounts until paid at such rates as may be published by
the Executive Director of the Commission.
6.
The hearing scheduled in Las Vegas, Nevada for
October 24, 1989, is cancelled.
7.

This is a final decision and order pursuant to Fed.

R. Civ. P. 54(b).

Law Judge

Distribution:
Nathaniel Reed, Esq., Norman Reed, Esq., 1405 South Maryland
Parkway, Las Vegas, NV 89104 (Certified Mail)
William T. Murphy, Esq., Washington Corporations, 101 International Way, Missoula, MT 59902 (Certified Mail)
/ot

1991

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

22041

OCT 16 1989
CONTEST PROCEEDING

SOUTHERN OHIO COAL COMPANY,
Contestant
v.

Docket No. WEVA 88-144-R
Order No. 2895540; 1/27/88

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

Martinka No. 1 Mine
Mine ID 46-03805

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 88-212
A.C. No. 46-03805-03852

v.
Martinka No. 1 Mine
SOUTHERN OHIO COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Joseph T. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Respondent/Petitioner;
David A. Laing, Esq., Porter, Wright, Morris &
Arthur, Columbus, Ohio, for Contestant/Respondent.

Judge Maurer
STATEMENT OF THE CASE

Contestant, Southern Ohio Coal Company CSOCCO), has filed a
notice of contest challenging the issuance of Order No. 2895540
at its Martinka No. 1 Mine. The Secretary of Labor (Secretary)
has filed a petition seeking civil penalties in the total amount
·of $1700 for the violations charged in the aforementioned
contested order as well as the unrelated, uncontested§ 104(d)(2)
Order No. 2895348 which was also issued on January 27, 1988.
At the hearing on these cases, which was held on June 28,
1989, in Morgantown, West Virginia, the parties jointly moved for
approval of their settlement of that portion of the civil penalty
case that pertained to Order No. 2895540. I approved a reduction
from $900 to $500 of that part of the civil penalty assessment
and granted the motion on the record (Tr. 4-7). That settlement
proposal, once approved, effectively mooted out the contest
proceeding docketed at WEVA 88-144-R.

1992

The aforementioned partial settlement did not include Order
No. 2895348, which alleges a violation of 30 C.F.R. § 75.1403-9Ca)
and proposes a civil penalty of $800. That alleged violation was
tried before me at the hearing on June 28, 1989.
The general issues before me concerning this remaining order
and its accompanying civil penalty proposal are whether the order
was properly issued, including an examination of the validity of
the underlying notice to provide safeguards, whether there was a
violation of the cited standard, and, if so, whether that
violation was "significant and substantial", and caused by the
"unwarrantable failure" of the mine operator to comply with that
standard. Additionally, should a violation be found, an
appropriate civil penalty must be assessed.
Order No. 2895348, issued pursuant to§ 104(d)(2) of the
Federal Mine Safety and Health Act of 1977 (the Act), alleges a
violation of the regulatory standard at 30 C.F.R. § 75.1403-9(a)
and charges as follow3:
A shelter hole is not provided along the E4 section
supply track for a distance of 170 feet when measured.
The area is between No. 1 block and No. 3 block.
Overcast walls are in the crosscut3 left and right of
the track. Notice to provide Safeguard was issued
No. lJF 5/23/75.
Notice To Provide Safeguard No. lJF, issued on May 23, 1975,
states in pertinent part:
Shelter holea are not provided at 105 foot intervals on
the 1 Left section supply track for a distance of 400
feet.
Shelter holes shall be provided on all track haulage roads
in this mine.
Both parties have filed post-hearing proposed findings of
fact and conclusions of law, which I have considered along with
the entire record herein. I make the following decision.
STIPULATIONS
The parties have agreed to the following stipulations, which
I accept:
1. SOCCO and its Martinka No. 1 Mine are subject
to the provisions of the Federal Mine Safety and Health
Act oE 1977.

1993

2. This administrative law judge has jurisdiction over
these proceedings pursuant to Section 105 of the Act.
3. Order No. 2895348 was properly served by a
duly-authorized representative of th~ Secretary on the date
reflected therein.
4.
SOCCO is a large operator, and the assessment of a
civil penalty in this proceeding will not affect SOCCO's
ability to remain in business.
5.
The alleged violation set forth in Order
No. 2895348 was abated in good faith by SOCCO.
FINDINGS OF FACT
1. Order No. 2895348 was issued on January 27, 1988, by
Inspector Charles J. Thomas du:ring a AAA inspection of the
Martinka No. 1 Mine.
2.
Inspector Thomas observed, representatives of SOCCO
essentially admitted, and I so find as a fact that shelter holes
had not been provided every 105 feet along the E-4 Section supply
track haulage. More particularly, the inspector located an area
along that track haulage, 170 feet in length, that did not
contain a shelter hole.
3. On May 23, 1975, a notice to provide safeguards was
issued for this mine concerning shelter holes. This safeguard
essentially stated that shelter holes shall be provided on track
haulage at intervals of not more than 105 feet.
4.
Inspector Thomas has inspected approximately 30
underground coal mines during his 20 year tenure as an MSHA
inspector. Of these 30 underground coal mines, approximately 21
utilize track haulage. All of these 21 mines have a safeguard
requiring that shelter holes be located every 105 feet on the
track haulage.
Inspector Thomas could not recall any underground
coal mine with track haulage that did not have a safeguard
requiring shelter holes every 105 feet.
5. A similar safeguard requiring shelter holes every 105
feet on track haulage has been issued at SOCCO's Meigs No. 1,
Meigs N.o. 2 and Raccoon No. 3 mines located in Ohio. In
addition, a similar safeguard has been issued at the Windsor Coal
Company in Moundsville, West Vir~inia. Windsoc Coal Company,
like SOCCO, is part of the American Electric Power system.

1994

DISCUSSION
The Secretary bears the burden of proof to demonstrate that
the violation occurred as alleged in the instant order.
Since this is a "safeguard" case, SOCCO arg~es that that
burden includes establishing the validity of the underlying
safeguard at issue.
I agree. Secondly, given that burden, SOCCO
argues that the Secretary has failed in this instance to
demonstrate the validity of Safeguard No. lJF in that there is no
evidence in this record that the safeguard was issued because of
any peculiar circumstance or configuration existant in the
Martinka No. 1 Mine. To the contrary, the operator states that
the record evidence clearly demonstrates that the subject
safeguard has been issued in a blanket manner at every
underground coal mine that utilizes track haulage.
If the safeguard is not valid, then the section (d)(2) order
which purports to enforce it would likewise be invalid.
30 C.F.R. §§ 75.1403-2 through 75.1403-11 set out the
criteria by which an MSHA inspector is guided in imposing
safeguards on a mine-by-mine basis under section 75.1403, which
repeats section 314(b) of the Act. These criteria are not
enforceable as mandatory standards but become enforceable when
the operator is issued a notice to provide safeguards.
Section 314(b) of the Act grants the Secretary the
extraordinary authority to essentially create mandatory safety
standards on a mine-by-mine basis without resorting to the normal
rulemaking procedures contemplated by the Act. Normally,
mandatory safety standards are developed and promulgated in
accordance with section 101 of the Act and the rule-making
provisions contained in the Administrative Procedure Act,
5 u.s.c. § 551, et seq. SOCCO maintains that the requirements
set forth in the instant safeguard should have properly been the
subject of such rule-making, rather than a safeguard notice
issued under section 314(b) of the Act, inasmuch as the safeguard
was not issued on a mine-by-mine basis and not due to any
particular circumstances or configuration of the Martinka mine.
In Southern Ohio Coal Company, 10 FMSHRC 963 (August 1988),
the Commission discussed the issue of the general application of
safeguards, but declined to rule on the specific issue of whether
a safeguard of general applicability could pass muster and be
enforceable under the Act, due to the inadequacy of the trial
record before it in that case.
~he identical issue resurfaces repeatedly at the trial level
and is the major issue before me in the instant case.

Subsequent to that Commission decision, Commission Judge
Weisberger, in Southern Ohio Coal Co., 10 FMSHRC 1564 (November
1988) vacated a citation alleging a safeguard violation because
of the Secretary's failure to establish that the underlying
safeguard was mine-specific to the Martinka No. 1 Mine.
Similarly, in Beth Energy Mines, Inc., 11 FMSHRC 942 (May
1989) Commission Judge Melick vacated a citation premised on a
safeguard violation when he held that safeguards cannot be used
to impose general requirements on all mines throughout a district
without regard to the circumstances of the specific mines.
Conversely, Judge Melick noted that MSHA may legitimately use
safeguards to "impose requirements on an operator on a
mine-by-mine basis subject to the specific conditions and
requirements necessitated by the peculiar circumstances at a
particular mine". Id. at 948.
See also, U.S. Steel Mining Co., Inc., 4 FMSHRC 526 (March
1982) where Commission Chief Juage Merlin vacated a similar
citation on the basis that the underlying safeguard had nothing
to do with the conditions peculiar to that mine as opposed to
all other mines.
In this case, Inspector Thomas testified that he cannot
recall a single instance where an underground coal mine that
utilizes track haulage does not also have a safeguard requiring
shelter holes every 105 feet along that track haulage.
Furthermore, all of the approximately 21 underground coal mines
that he personally has inspected that have track haulage also
have this same safeguard requiring shelter holes every 105 feet.
Moreover, similar safeguards requiring shelter holes every
105 feet along track haulage have also been issued at SOCCO's
Meigs No. 1, Meigs No. 2 and Raccoon No. 3 mines in southern Ohio.
Additionally, a similar safeguard has also been issued to the
windsor Coal Co.mpa.11y, in West Virginia.
The evidence in this case could hardly be stronger that the
safeguard at bar as well as those widespread similarly worded
saf eguardd that apparently are prevalent thoughout the industry
are issuea without regard to the conditions at any particular
mine as long as that mine has track haulage. For all intents and
purposes, these safeguards are an across-the-board mandatory
safety standard requiring shelter holes every 105 feet along
track haulage, period. If that is what the Secretary believes is
necessary in the interest of mine safety, and it may very well be
an essential rule, then it is incumbent upon her to promulgate
that standard in accordance with the rule-making procedures
contained in Section 101 of the Act.

1996

The Secretacy clearly has the burden of proving every
element of her case necessary to establish the violation alleged
and I believe that includes the validity of the underlying
safeguard in this type of a case which involves enforcing a
safeguard.
I conclude that in this case, the Secretary has failed to
demonstrate that Safeguard No. lJF was issued on a "mine-by-mine"
basis and more particularly, has failed to demonstrate that it
was issued at the Martinka No. 1 Mine because of any peculiar
circumstances or physical configuration of that mine. The
safeguard had nothing whatsoever to do with conditions peculiar
to that mine as opposed to other mines that also have track
haulage. For these reasons, I find it to be an invalid
safeguard.
Therefore, I find that Order No. 2895348, being based on an
invalid safeguard, was improperly issued and must be vacated.
ORDER
Based on the above findings of fact and conclusions of law,
and on the motion to approve settlement, IT IS ORDERED ·rHAT:
1. Order No. 2895540 is MODIFIED to a Section 104Ca)
citation.
2.

Order No. 2895348 is VACA'rED.

3. Docket No. WEVA 88-144-R is GRANTED in part insofar as
it contests the finding of unwarrantability in Order No. 2895540.
4. The Southern Ohio Coal Company pay a civil penalty of
$500 within 30 days of the date of this decision for the
violation found in Citation No. 2895540.

/~ ,f
I ,:)
~t..jl V(/ ·. t\;u,1!VV

'1·

Roy J .''.Maurer

Adminijt~ative Law Judge

1997

Distribution:
David A. Laing, Esq., Porter, Wright, Morris & Arthur, 41
St., Columbus, OH 43215-3406
(Certified Mail)

s. High

Joseph T. Crawford, Esq., U.S. Department of Labor, Office of the
Solicitor, 14480 Gateway Bldg., 3535 Market St., Philadelphia,
PA 19104
(Certified Mail)
/ml

1998

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

22041

OCT 171989
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 88-304
A. C. No. 36-00958-03739

v.
Livingston Portal Eighty
Four Complex

BETH ENERGY MINES INCORPORATED,
Respondent
DECISION
Appearances:

Anita Eve, Esq., Office of the Solicitor, u. s.
Department of Labor, Philadelphia, PA, for the
Secretary;
R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania, for the Respondent.

Before:

Judge Weisberger

Statement of the Case
In this proceeding, the Secretary (Petitioner> seeks a civil
penalty for an alleged violation by the Operator (Respondent) of
30 C.F.R. § 75.316. A Petition for Assessment of Civil Penalty
was filed on September 23, 1988, and Respondent filed its Answer
on September 30, 1988. On March 28, 1989, the case was set for
hearing on June 21 - 22, 1989. Pursuant to a telephone conference
call on April 6, 1989, between the undersigned and attorneys for
both Parties, a hearing in this matter was rescheduled for
August 1 - 3, 1989.
On April 10, 1989, Petitioner filed a Motion to Reopen
Discovery, and on April 12, 1989, Respondent filed its response
in opposition. The Motion was granted by Order of April 25,
1989.
Subsequently the case was heard on August 1 - 2, 1989, in
Johnstown, Pennsylvania.
James High, Alvin Shade, Lorenzo
Steele, and- Richard Zilka testified for Petitioner. Steve
Carson, Bruce Sheets, Thomas Mucho, George Kupar, David Morris,
Dale ~nders, and Michael Error testified for Respondent.

1999

The Parties were granted time to file proposed Findings of
Fact and Briefs 3 weeks subsequent to the receipt of the Hearing
Transcript •. The official Transcript was filed on August 17, 1989.
Respondent filed its Brief on September 11, 1989. Petitioner was
granted an extension until September· 20, 1989, to file its Brief,
but none was filed.
Stipulations
1. At all times pertinent to these proceedings, Beth Energy
Mines, Incorporated was the owner and operator of an underground
coal mine known. as the r... ivingston Portal, Eighty-Four Complex
located in Washington County, Pennsylvania.
2. Beth Engergy's mining operations affect Interstate
Commerce.
3. Beth Energy is a large operator and the subject mine is
also a large mine.
4.
In the 24 months proceeding the issuance of the subject
citation there were 1,022 violations cited in the subject mine.
5. The ability of Beth Energy to remain in business will
not be affected by the assessment of a penalty in this case.
6. As noted on Government Exhibit Number Two A, the
Livingston Portal Bighty-Four Complex had been under a 104Cd)C2>
change since October 7, 1987, and that at the time of .the
issuance of the order in this case on May 3, 1988, there had not
been a completed inspection prior thereto.
Findings of Fact and Discussion

I.
On May 3, 1988, the approved ventilation plan at Respondent's
Livingston Portal Eighty-Four Complex, as evidenced by Government
Exhibit 3 and Exhibit 0-3, required that air in the return entry be
coursed in the proper direction, and air that had been used to
ventilate old workings not be used to ventilate the active workings
of the section. At 9:15 a.m. on May 3, 1988, James High, an MSHA
Inspector, tested the ventilation of a transformer Cload or power
center) located between the cross cut and the No. 2 Entry. The
transformer was to be ventilated by a tube, 4 to 6 inches in
diameter, which was to ventilate the air from the transformer to
~o. 4 Entry.
When High performed a chemical smoke cloud test, he
observed that the cloud "blowed back out" (August 1, 1989, Vol. I),
Tr. 29), rather than being drawn in toward the tubing. High's
testimony has not been contradicted by ~espondent's witnesses, and

2000

was corroborated by Alvin Shade, an MSHA Inspector, who was present
with High and agreed that there was return air going .to the face.
Further, Lorenzo Steele, a coal mine inspector supervisor, was also
present and observed a reversal of the air. In addition, Bruce
Sheets, a longwall foreman employed by Respondent, who testified on
Respondent's behalf, also observed the reversal of air. Thus, I
conclude that Respondent herein did violate its ventilation plan,
and hence did violate 30 C.F.R. § 75.316.
II.
Significant and Sµbstantial
According to High, because of the reversal of the air flow
from the transformer and battery changer to the longwall section,
should there be a fire at the former location, it would be "reasonably likely" for smoke to go to the longwall section. He
indicated that the battery changing station and the transformer
are ignition sources. He concurred that he was concerned that if
anything happened to the batteri charger or transformer, smoke
could be generated which would go to the face. However, he
agreed that these items were "in good working order" (Vol. I,
Tr. 81). Further, the uncontradicted testimony of Thomas Mucha,
the manager of Respondent's operations at the subject mine, indicates that carbon monoxide from a fire at the area in question
would "probably" pass by sensors at the tail piece of the longwall. (August 2, 1989, (Vol. II), Tr. 52). (The sensors are
designed to produce a warning or alarm.)
Alvin Shade, an inspector who was present with High, essentially corroborated High's testimony,_ but did not elaborate oh
the likelihood of a fire occurring. Lorenzo Steele, an MSHA
Supervisor who also was present during High's inspection,
indicated that methane readings as high as 9/10 of 1 percent were
detected outby the regulator in the No. 4 entry, and there was
coal dust and respirable dust present. He stated that at any
time the methane in the area at issue could increase, .as on two
prior occasions the subject mine had to be closed down due to a
high level of methane. He indicated that he would have issued a
withdrawal order based on an imminent danger. I find that at
most Steele's testimony establishes that an increase in methane
could have occurred, but it does not establish that it was
reasonably likely to have done so. Further, based on Mucho's
testimony, it appears that methane in the area in question, that
is brought to the face by an air reversal, would be exceedingly
diluted by the volume of air at the face (Vol. II, Tr. 57).
Thus, the likelihood of injuries appears to be mitigated.

2001

Richard Zilka, a ventilation specialist employed by MSHA,
indicated that the battery charger produces noxious gasses and
hydrogen which as a consequence of the air reversal, would go to
the face.
However, there was no evidence presented as to the
quantities of these elements, and their specific impact if any on
the air at the face.
I find that there is insufficient evidence presented by
Petitioner to conclude that the production of smoke or fire was
reasonably likely to occur. The record also is lacking with
regard to a description of the types of injuries which could
reasonably be expected from the violation herein. Thus, I find
that it has not been ~stablished that the violation herein was
significant and substantial (See, Mathies Coal Co., 6 FMSHRC 1
(1984)).
III.
Unwarrantable Failure
Some time prior to the issuance of the order in question,
Respondent decided to cut through three entries to connect the
4 left panel with the 3C longwall panel. This connection
(cut-through) was made in order to experiment with certain
10 foot pillars, and to shorten the left split return in the
4 left section. By May 2, 1988, in the evening shift, two
entries had already been cut through to the 3C longwall panel.
At approximately 7 to 8 p.m., on May 2, the last entry was cut
through and curtains were installed. At that time air and
methane readings were taken in the left and right splits of the
4 left return, and according to Steve Carson, the section foreman
there was nothing unusual. Robert Merasoff, who was the longwall
foreman, for the 4 p.m. to midnight shift on May 2, in the
SA longwall panel, indicated in a deposition taken on July 12,
1988, C~xhibit 0-S), that he was not aware of the cut-through.
Merasoff indicated that, in a preshift examination, the air
current was moving in its proper course and was of the usual
volume. He also indicated that he examined the battery and power
center and did not recall any problem. Further, examinations of
the tubing with a crumbled piece of chalk, both on preshift and
on-shift, indicated that air was traveling in the proper course.
David Morris, the section foreman on the SA longwall for the
midnight shift, May 3, 1988, indicated that he did not test the
air going through the tubes. He indicated that he just walked by
the battery and power center, and did not recall anything unusual.
Bruce Sheets, Respondent longwall foreman for the SA panel on the
morning of May 3, could not recall if he tested the air at the
power center and battery prior to the time High issued the order
at issue.

2002

In essence, according to High, the violation herein is to be
considered to be as a result of Respondent's unwarrantable
failure, inasmuch as after the connection between the 4 left and
3C areas was made, Respondent should have checked the air at all
areas to be affected, including the regulator for the 5A longwall
panel. 1/ In this connection, he indicated that George Kupar,
Respondent's inspection coordinator, who accompanied him on the
inspection, on May 3, indicated to him essentially that the
cut-through had made an imbalance in the air, and had caused air
to go from the 3C section across the 4 left area to the
5A longwall panel. ~/
Richard Zilka, a Federal Coal Mine Inspector Ventilation
Specialist employed by Petitioner, opined that the ventilation in
the 4 left area is "delicate" as it abuts the 5A longwall section.
(Vol. I, Tr. 181). Hence, according to Zilka, if the regulator
for the right split of the 4 left panel is "satisfied" (Vol. I,
Tr. 182) by the amount of air it is adjusted for, then air from
the No. 4 Entry can not go that way, and instead will go by the
most available way to the fan which is back through the tube in
the No. 2 Entry at the battery and power center. He asserted
that accordingly, if there is a ventilation change in the 4 left,
such as a cut-through, there should be an examination afterwards
in the 5A panel to make sure that there are no ventilation
changes in that area. He indicated that because the 4 left area
and 5A longwall panel are so close, it was "negligence" CVol. II,
Tr. 154) not to note that any increase in the ventilation in the
right split of the 4 left area would affect the regulator for the
5A longwall panel.) He opined that the reversal of the air in
the tube in question was caused by some ventilation change in the
vicinity and possibly, by the cut-through.
In order to find that the violation herein resulted from
Respondent's unwarrantable failure, it must be established that
there was "aggravated conduct" on the part of Respondent, which
is more than ordinary negligence (Emery Mining Corp., 9 !!'MSHRC
1997 (1987)). After considering the record as a whole, based on
the reasons that follow, I conclude that Petitioner has not met
this burden.~/

1/

The preshif t examination normally did not include the

~egulator for the SA longwall.

~/

When Kupar was asked whether he had· made the statement, he
answered "I do not believe so" (Vol. II, Tr. 98). Based on
observation of the witness' demeanor, I accept High's version.

~/ In light of this conclusion, it is not necessary to decide
Respondent's Motion for Swmnary Decision which was made at the
conclusion of Petitioner's case, and as to which I had reserved
decision.

2003

A material issue to be decided is whether there was any
aggravated conduct on the part of Respondent in not checking the
tubing and the SA longwall regulator after ventilation changes,
occasioned by the completion of the connection on the evening of
May 2, 1988, and the removal of two stoppings CB and B in
Exhibit 0-2) on the midnight shift of May 3. Also, according to
Thomas Mucho, who was the mine manager at the subject 84 Complex,
the violative condition was abated upon the removal of the two
old partial block stoppings in the 4 left panel. Hence, it also
must be decided whether there was any aggravated conduct on the
part of Respondent in not having removed these stoppings previously upon completion of the connection and removal of stoppings
labeled E and B on Exhibit 0-2.
According to Mucha, who has a Bachelor of Science Degree in
Mining Engineering, he has experience as an engineer in mines in
the area of ventilation, and oversees the drawing up of the ventilation plans for the subject mine. Mucha indicated that prior to
the report to him of the air reversal in the tubing in question,
he did not anticipate that the completion of the connection and
the removal of the stoppings E and B in the 4 left panel area
would have caused any affect at the regulator for the 9o. 4 entry
of the SA longwall section, and thus did not assign anyone to
check the air there. Specifically, he indicated that he did not
anticipate that the completion of the connection, and the removal
of the old stoppings E and B would have caused any air reversal
at the tubes in question. He indicated that his lack of concern
was based upon an assumption that, because of the close proximity
of the SA longwall section to the intake shaft as opposed to the
distance of the 4 left area to the shaft, there would be more
pressure in the SA longwall section as compared to the 4 left.
He was of the opinion that if the pressure would be less at the
regulator labeled GG on Exhibit 0-2, as a result of the removal
of the old partial stoppings, air would be expected to go through
that regulator from the SA longwall panel and not from the 4 left
panel.
In this connection, Mucho indicated that on May 2, he did
not feel any air change on either side of the partial stoppings,
and concluded that there was no pressure drop and that these old
partial stoppings were not affecting the system. On May 2, he
was of the opinion that the ventilation changes in the 4 left
area would not have any affect on these stoppings. ~/
4/

Mucha indicated, in essence, that he considered them to be
(Vol. II, Tr. 75) in that they decreased
efficiency and hence caused an increase in production costs. He
said that he would have knocked them down, on May 2, if he had a
sledge hammer, but that other matters that he was concerned with
were on his mind.

~needless resistance"

2004

Petitioner did not, upon cross-examination, elicit from
Mucha any admission which would tend to indicate that the assumptions he made were not proper or reasonable. Nor did Petitioner
adduce any evidence which_would tend to indicate that the assumptions Mucha made were not prudent mining practices.
Dale ~. Anders, Respondent's chief longwall foreman, indicated that when he was informed of the reversal, on the date in
question, he checked the ventilation at the load center and it
was "fine," (Vol. II, Tr. 120), and also the air in the opposite
end in the No. 4 Entry was "fine." {Vol. II, Tr. 121). He
indicated that when he checked 10 minutes later, the air direction had reversed. Petitioner's witnesses essentially agreed
that the air direction at the tube did fluctuate. Neither High
nor Shell nor Sheets was able to establish how often the air
reversed itself. Neither High nor Shell established the duration
of the air reversal and when it initially commenced. Accordingly,
had the air at the No. 4 Entry of the SA longwall panel regulator
or the tubing in question been checked in the midnight shift of
May 3, or the morning shift of that date, there is no certainty
that such an examination would have uncovered the reversal, as the
air direction fluctuated.
Also, the evidence does not establish
either the frequency or duration of the fluctuation. Taking into
account all the above, I conclude that it has not been established
that Respondent exhibited any "aggravated conduct" in connection
with the violation herein.
IV.
In essence, Michael Error, Respondent's ventilation foreman
who planed the connector (cut-through), indicated, in looking at
the results of the air reversal in the tube in question, that he
would agree that once the permanent stoppings were removed, the
old partial stoppings on May 3, were acting as regulators. Also,
in essence, Mucha indicated that once he became aware of the air
reversal, he concluded that it was caused by the effect of the
old partial stoppings once the two permanent stoppings had been
removed. Accordingly, I find that Respondent was negligent to a
moderately high degree, as it should have known that the removal
of the old stoppings would have had an impact on the ventilation
in the 4 left area, and would have caused the reversal in
question.
According to High, methane readings in the area in question
were between .3 to .9, and Steele observed dust going down No. 4
Entry. An air reversal could have brought these hazards as well
as noxious gases produced by the battery to the face.
According
to Mucho's uncontradicted testimony, any methane so drawn to the
face would be diluted by the 40,000 cubic feet per meter air flow

2005

at the face, and thus would be "imperceptible." ·(Vol. II,
Tr. 57) There is no evidence to support Steele's opinion that at
any time the methane could go higher. I conclude that the
violation herein was of a moderately serious nature. Taking into
account the balance of the statutory factors in section llOCi) of
the Act as stipulated to by the Parties, I conclude that
Respondent shall be assessed a penalty herein of $700.
ORDER
It is hereby ORDERED that Order No. 3093147 issued on May 3,
1988, be amended to a section 104(a) Citation, and reflect the
fact that the violation therein is not significant and substantial. It is further ORDERED that Respondent shall pay a civil
penalty of $700 within 30 days of this Decision.

L

..

Wei~

Avram
Administrative Law Judge
Distribution:
Anita Eve, Esq., Office of the Solicitor, U. s. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)

R. Henry Moore, Esq., Buchanan Ingersoll, 600 Grant Street, 57th
Floor, Pittsburgh, PA 15219 (Certified Mail)
dcp

2006

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

OCT 1 7 1989
ROCHESTER & PITTSBURGH COAL
COMPANY
Contestant

CONTEST PROCEEDINGS

..

Docket No. PENN 88-309-R
Citation No. 2889075; 8/24/88

v.

Docket No. PENN 88~310-R
Citation No. 2889167; 9/6/88

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Respondent

Greenwich Collieries No. 2 Mine
Mine ID 36-02404

.
DECISION
Appearances:

Joseph A. Yuhas, Esq., Rochester & Pittsburgh Coal,
Ebensburg, Pennsylvania, for the Contestant;
B. Anne Gwynn, Esq., Office of the Solicitor, u. S.
Department of Labor, Philadelphia, Pennsylvania,
for the Secretary.

Before:

Judge Weisberger

Statement of the cases
In these proceedings, Rochester & Pittsburgh Coal Company
(Contestant) seeks to contest two section 104Ca) Citations issued
on August 24, 1988, and September 6, 1988, respectively. Pursuant
to notice, the cases were heard in Ebensburg, Pennsylvania on
July 26, 1989. Nevin Davis testified for the Secretary
(Respondent). Contestant did not adduce any testimony. Contestant
indicated however, that if the citation was sustained, the
penalties proposed by the Secretary are "appropriate" CTR. 8).
Respondent filed a posthearing brief on October 3, 1989, and
Petitioner filed Proposed Findings and Fact and a Memorandum on
October 4, 1989.
Stipulations
1. Greenwich Collieries is owned by Pennsylvania Mines
Corporation and managed by Respondent, Rochester and Pittsburgh
Coal Company.

2007

2. Greenwich Collieries is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977.
3. The Administrative Law Judge has jurisdiction over these
proceedings.
4. Safeguard Number 2885431 was properly served by a duly
authorized representative of the Secretary of Labor upon agents
of the Rochester and Pittsburgh Coal Company on the day, time and
place stated therein.
5. Safeguard Number 2885431 had not been vacated or withdrawn at the time citation numbers 2889075 and 2889167 were
issued.
6. Citation Numbers 2889075 and 2889167 were properly
served by a duly authorized representative of the Secretary of
Labor upon agents at the Rochester and Pittsburgh Coal Company on
the days, times and places stated therein. ·
7. The Respondent demonstrated good faith in the
of the citation.

abat~nent

8. The assessment of the civil penalty in this proceeding
will not affect Respondent's ability to continue in business.
9. The appropriateness of the penalty, if any, to the size
of the coal operator's business should be based on the facts
that, (a) the Respondent companies annual production tonnage is
$10,554,743, and (b) that the Greenwich Collieries Number Two
Mine's annual production tonnage is $1,195,419.
10. Greenwich Number Two Mine was assessed 881 violations
over 1,224 inspection days during the 24 months preceding the
issuance of Citation Number 2889075~ and 911 violations over
1,228 inspection days during the 24 months preceding the issuance
of Citation Number 2889167.
Findings of Fact and Conclusions of Law
Nevin Davis, an MSHA Inspector, testified that while at
Contestant's Greenwich Collieries No. 2 Mine on May 16, 1988, he
observed two of Contestant's employees unloading metal pipes from
an elevator in the South Portal. He described the pipes as being
approximately 2 inches in diameter and between 2 - 4 feet in
length. He said that there were approximately four or five
pipes, and that he also observed two "cylindrical" objects on the
floor of the elevator that were approximately 1 foot to
1 and 1 1/2 feet high (Tr. 22). He said he testified that
" • • • these have been known" (Tr. 23) to speed up or slow down,

2008

thus, in his opinion, creating a hazard of the pipes moving,
flying, and striking anyone riding in the elevator.
In essence,
he said that,.considering the size and weight of the pipes, they
created a serious hazard to persons present in the elevator. He
opined that if the pipes were to strike an enployee, there could
be "any type of injury," including broken bones or open wounds.
He indicated that the elevator in question was not being used as
a "man trip" which he defined as a regularly scheduled trip transporting miners at a set time at the beginning or end of a shift.
According to Davis, in essence, he was guided by a memorandum
dated May 8, 1978, from Donald W. Huntley, District Manager Coal
Mine Safety and aealth, which stated that "In accordance with the
procedure for expansion of provisions under section 75.1403
• • • the following list of provisions should be enforced: No
persons shall ride on a cage or elevator with equipment, supplies, or other materials. This does not prohibit the carrying
of small hand tools, surveying instruments, or technical devices."
(Government Exhibit 1).
Davis indicated that on May 18, 1988, he issued a safeguard,
pursuant to the above memorandum, in which he recited what he
observed on May 16, 1988, and which requires " • • • that no
person shall be transported on any cages or elevators with equipment, supplies, or other materials. ~his does not prohibit the
carrying of small hand tools, surveying instruments, or technical
devices." (Government Exhibit 2).
On August 24, 1988, Davis returned to the No. 2 Mine for a
spot inspection and observed a miner exiting the same elevator he
had observed on May 16. He said that a miner was riding in the
elevator with a metal type portable dolly made out of pipe
approximately 2 feet high, and which tapered to the bottom having
a dimension of approximately 1 foot by 18 inches to 2 feet.
He
said that the dolly is designed to be pushed. Davis said that
"If the elevator speeds up or slows down suddenly" (~r. 31) the
dolly could strike an employee. He described this event as being
likely to occur and said that it could cause injuries to an
employee such as broken bones or bruises. In view of the
presence of an employee, he described the condition as serious,
and presenting the same hazard as the one observed by him on
May 16.
Accordingly, he issued a citation, alleging, in essence,
a violation of the safeguard previously issued on May 18.
On September 6, 1988, Davis returned to the ~o. 2 Mine and
again observed a miner exiting the South Portal elevator with a
metal type dolly which he described as the same one that he had
observed on ~ugust 24, 1988. He again issued a section 104(a)
Citation alleging a violation of the safeguard previously issued
on May 18, 1988.

2009

The Contestant did not dispute the conditions observed by
Davis on May 16, August 24, or September 6, 1988. Contestant,
however, challenges the underlying safeguard issued on May 18,
1988, on the ground that it addresses hazards that exist in all
mines with elevators. Contestant also argues that the safeguard
is not valid as it is insufficiently specific. In contrast,
Respondent argues that the underlying safeguard although not
being mine-unique was mine-specific.
The Commission in Secretary v. Southern Ohio Coal Co.,
10 FMSHRC 963 at 967 (August 1988), noted that the Court of
Appeals of the District of Columbia Circuit in Zeigler Coal Co.
v. Kleppe, 536 F2d 389 CD.C. Cir. 1976) "· •• has recognized
proof that ventilation requirements are generally applicable,
rather than mine-specific, may provide the basis for a defense
with respect to alleged violations of mandatory ventilation
plans." The Commission in southern Ohio, supra, at 967 further
analyzed Zeigler as follows:
[T]he court considered the relationship of a
mine's ventilation plan required under section 303(0)
of the Act, 30 u.s.c. § 863(0), to mandatory health and
safety standards promulgated by the Secretary. The
court explained that the provisions of such a plan
cannot "be used to impose general requirements of a
variety well-suited to all or nearly all coal mines"
but that as long as the provisions "are limited to
conditions and requirements made necessary by peculiar
circQmstances of individual mines, they will not
infringe on subject matter which could have been
readily dealt with in mandatory standards of universal
application." 536 F.2d at 407; See also, Carbon County
Coal Co., 6 FMSH~C 1123, 1127 (May 1984) (Carbon County
!>; Carbon County Coal Co., 7 FMSHRC 1367, 1370 72
(September 19.85) (Carbon County II).
In Southern Ohio, supra, the Commission did not resolve the
question of whether a defense to a safeguard may be based on its
being generally applicable, as it found that there was no
evidence of whether the safeguard was general or mine-specific.
Specifically, the Commission in Southern Ohio, supra, at 965
indicated that no evidence was presented as to the circumstances
under which the safeguard was issued or the "specific reasons"
why the safeguard was imposed at the subject mine. In the case
at bar, Davis, who issued the original safeguard, did not indicate that there was any specific reason why the safeguard was
issued for the elevator at Mine No. 2. ~he terms of the Huntley
Memorandum (Government Bxhibit 1) which led Oavis to issue the
safeguard, and the terms of the safeguard itself, relate to conditions that are applicable to all elevators and are not unique to

2010

the elevators at Mine No. 2. According to Davis, the riding
compartment of the elevator at Mine No. 2 is basically the same,
aside from its dimensions, as the elevators found in other mines
he inspects. Although the conditions that gave rise to the safeguard, i.e., men riding an elevator that also contained pipes,
might be considered hazardous, there is no evidence that this
condition is unique to Mine No. 2, or is occasioned by equipment
peculiar to Mine No. 2.
I find that generally, in allocating the burden of proof,
one factor taken into account is which Party has the best knowledge of the particular disputed facts (Lindahl v. Office of
Personnel Management, 776 F.2d 276 (Fed. Cir. 1985)). The burden
is not placed upon a Party to establish facts particularly within
the knowledge of its adversary. In this connection, it appears
that Respondent would have particular knowledge as to the circumstances under which the safeguard was issued, and the existence
or need of similar safeguards at other mines (See, Southern Ohio,
supra, at 967-968).
In addition, it has been held that, generally, MSHA has the burden of putting forth a prima facie case of
a violation (Miller Mining Co., Inc. v. Federal Mine Safety and
Bealth Review Commission, 713 F.2d 487 (9th Cir 1983) See also,
Old Ben Coal Corp. v. IBMA, 523 F.2d 25, 39 (7th Cir. 1975)). ~s
such, it had the burden of establishing all elements of the
citation including the validity of the underlying safeguard.
I thus conclude, based on all the above, that Petitioner has
failed to establish that the safeguard in issue was mine-specific
to the subject mine. As such, based on the rationale of Zeigler,
supra, that applies with equal force to the case at bar, I
conclude that because it has not been established that the safeguard was mine-specific, it therefore is invalid ~s it was not
promulgated pursuant to the rule-making procedures of section
314Cb) of the ~ct.
(See Beth Energy Mines, Inc., 11 FMSH~C 942
(Judge Melick 1989), Southern Ohio Coal Co., 10 FMSHRC 1564
(Judge Weisberger 1989.)) Accordingly, I find that the Citations
herein should be dismissed, inasmuch as they were predicated upon
an invalid safeguard.
ORDER
It is ORDERED that the Notices of Contest, Docket Nos. PBNN
88-309-R and PENN 88-310-R, are SUSTAINED.

L~

Avram Weisberger
Administrative Law Judge

2011

Distribution:
Joseph A. Yuhas, Esq., Rochester & Pittsburgh Coal Company, P.
Box 367, Ebensburg, PA 15931 (Certified Mail)

o.

B. Anne Gwynn, Esq., Office of the Solicitor, u. s. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
dcp

2012

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

OCT 171989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING

..

Docket No. WEVA 89-44
A.C. No. 46-03805-03880
Martinka No. Mine

SOUTHERN OHIO COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Mark R. Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Secretary of Labor {Secretary);
David M. Cohen, Esq., Lancaster, Ohio, for Southern
Ohio Coal Company CSOCCO).

Judge Broderick

STATEMENT OF THE CASE
In this docket, the Secretary seeks civil penalties for two
alleged violations of mandatory safety standards. The violations
were charged in two withdrawal orders issued under section
104Cd){2) of the Federal Mine Safety and Health Act {Act). With
respect to the violation charged in Order 3106068, the parties
have agreed to a settlement, and the Secretary filed a motion for
its approval subsequent to the hearing. Pursuant to notice, a
hearing was held on the other alleged violation in Morgantown,
West Virginia on June 14, 1989. Homer Delvich, Patrick Grimes,
Warren Bates and Gary Eagle testified on behalf of the Secretary.
David Stout, Mattio Mugnano and Paul Zanussi testified on behalf
of SOCCO. No provision was made on the record for posthearing
briefs. SOCCO filed such a brief; the Secretary did not. I have
considered the entire record and the contentions of the parties,
on the bases of which I make the following decision.
FINDINGS OF FACT
SOCCO is the owner and operator of an underground coal mine
in Marion County, West Virginia, known as the Martinka No. 1 Mine.
The mine has an annual production of two million tons; the
operator has an annual production of eleven million tons. It is
a large operator. Martinka has a history of prior violations

2013

amounting to approximately one significant and substantial
violation per inspection day during the two year period prior to
the violations involved in this proceeding. The two violations
involved herein were abated in a timely manner.
ORDER NO. 3106068
This order charges a violation of 30 C.F.R. § 75.202. It
was originally assessed at $950, and the motion proposes a
reduction to $800. The violation involved a hazardous roof
condition which had been noted in SOCCO's preshift book. For
that reason, the violation was found to result from SOCCO's
unwarrantable failure to comply. The motion states that pretrial
discussion persuaded the Secretary to reduce the negligence
somewhat because the condition had worsened within a few days of
the inspection. I have considered the motion in the light of the
criteria in section llO(e) of the Act, and conclude that it
should be approved.
ORDER NO. 3106064
On August 15, 1988, Federal coal mine inspector
Homer Delirch was inspecting the subject mine. He entered the
mine at about 8:30 a.m. and arrived at the belt feeder on North
Main Section 037 at about 9:45 a.m. He found a large pool of
hydraulic oil, about 3 inches deep, 6 feet wide and 12 feet long
under the feeder. Rock dust had been added only to the edges of
the oil puddle against the rib lines. There was also a coating
of coal dust about 1/8 of an inch deep caked with oil on the
frame and motor of the feeder. The oil was hydraulic oil used to
coal motors and it was combustible. The belt feeder was running
at the time. The prior shift (cat-eye shift) had produced coal.
Ignition sources were in the area: the motor (covered with oil
saturated coal dust) runs hot. There are power cables going to
the feeder.

qocco had had problems with this belt feeder for some time
prior to August 15, 1988. On July 29, 1988, during the midnight
shift, O-rings and a "busted fitting" were replaced. On
August 1, 60 g~llons of oil were added to the feeder.
On
August 2, 8 and 11 further work was done on the hoses, O-rings
and oil tank. One mechanic, Patrick Grimes (also a UMWA
walkaround), testified that oil had been on the floor "possibly a
week or longer" (prior to August 15).
(R. 39). Grimes never saw
anyone trying to take up the oil "until the inspector wrote it
up."
(Q. 39).
Another mechanic, Warren Bates, testified
concerning the feeder:· "You poured it (oil) in and it runs out,
and you pick it up off the ground. I mean, it's just a cycle."
(R.62). On August 12, the mechanic's work sheet noted that
the mechanic took oil and rock dust to feeder.
In his remarks he

2014

noted:
"Did not get oil spill covered."
(Exhibit 1, SOCCO's
Response to Secretary's Request for Production of Documents.)
Matio Mugnano, the day shift section foreman, testified that
during the weekend (August 13-14), the a-rings and a hose were
replaced on the feeder.
The condition was abated by taking up the oil in 5 gallon
cans, which were placed on the belt and taken out of the mine.
Between ten and thirty gallons of oil were removed. The feeder
pump frames were degreased and washed and coal dust was removed
from the frames and motor. The order was terminated at
12:30 p.m., August 15, 1988.
REGULATION
30 C.F.R. § 75.400 provides as follows:
Coal dust, including 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.
CONCLUSIONS OF LAW
I

SOCCO is subject to the provisions of the Act in the
operation of the subject mine. I have jurisdiction over the
parties and subject matter of this proceeding.
II

Although SOCCO contends that a violation of 30 C.F.R.
§ 75.400 has not been shown, because the accwnulations cited were

minimal and not combustible, the evidence is overwhelming that
the pool of oil under the belt feeder was (1) hydraulic oil with
very little water, (2) combustible and (3) a large accumulation.
The evidence further establishes that there was oil soaked coal
dust on the frame and motor housing of the feeder.
I conclude
that these conditions establish a violation of 30 C.F.R.
§ 75.400.
III

A violation is properly designated as significant and
substantial if there is a reasonable likelihood that the hazard
contributed to will result in a serious injury. Cement Division,
National Gypsum Co., 3 FMSHRC 822 (1981); Florence Mining
Company, 11 FMSHRC 747 {1989). Here there is evidence of a
substantial amount of combustible material on and near electrical

2015

equipment.
I conclude that a mine fire was reasonably likely.
This could result in fire entrapment, smoke, and carbon monoxide.
With miners. working in the area, serious injuries would be
probable. I conclude that the violation was significant and
substantial.
IV
Unwarrantable failure is established by a showing of
aggravated conduct constituting more than ordinary negligence.
Emery Mining Corp., 9 FMSHRC 1997 (1987). The problem of oil
leaks from the belt feeder in question go back more than two
weeks from the date the order was issued. SOCCO was aware of the
leaks, and made some attempts to take care of the problem. The
evidence however establishes that substantial accumulations of
oil under the feeder were common--the rule rather than the
exception--from at least July 29 to August 15, 1988. SOCCO
should have effectively repaired the equipment or withdrawn it
from service.
In view of the accumulations and SOCCO's awareness
of them, its failure to do so constituted aggravated conduct,
more than ordinary negligence. I conclude that the violation
resulted from SOCCO's unwarrantable failure to comply with the
standard.

v
The violation was serious and resulted from aggravated
conduct. SOCCO is a large operator. Its history of prior
violations is not such that a penalty otherwise appropriate
should be increased because of it. The violation was abated in a
timely fashion.
In the light of the criteria in section llOCi)
of the Act, I conclude that $1000 .is an appropriate penalty for
the violation.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Order 3106064 is AFFIRMED, including the special
findings that the violation was significant and substantial and
caused by unwarrantable failure;
2. Order 3106068 is AFFIRMED, including the special
findings that the violation was significant and substantial and
caused by unwarrantable failure.
3. Within 30 days of the date of this decision, SOCCO shall
pay the following civil penalties:

2016

Order

Penalty

3106064
3106068

$1000
800
$1800

11u6 ~_,vft4~~Jd
ames A. Broderick
Administrative Law Judge
Distribution:
Mark M. Malecki, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, Va 22203 (Certified
Mail)
David M. Cohen, Esq., American Electric Power Service Corp., 161

w. Main Street, P.O. Box 700, Lancaster, OH 43130 (Certified
Mail)
slk

2017

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

OCT 171989
SOUTHERN OHIO COAL COMPANY,
Con.testant

.

v.

CONTEST PROCEEDING
Docket No. WEVA 89-124-R
Order No. 3117373; 1/31/89

SECRE'rARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
'Respondent
SECRE'rARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner
v.
SOUTHERN OHIO COAL COMPANY,
Respondent

Martinka No. 1 Mine
Mine I.D. 46-03805

.

CIVIL PENALTY ?ROCEEDING

..

Martinka No. 1 Mine

Docket No. WEVA 89-204
A.C. No. 46-03805-03916

DECISION
Appearances:

Before:

Mark R. Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Secretary of Labor (Secretary);
David~- Cohen, Esq., Lancaster, Ohio for Southern
Ohio Coal Co. CSOCCO).

Judge Broderick

STATEMENT OF THE CASE
In the contest proceeding, SOCCO contests the validity of an
order of withdrawal issued under section 104(d)(2) of the Federal
Mine Safety and Health Act (the Act).
In the penalty proceeding,
the Secretary seeks a civil penalty for the violation charged in
the contested order. The cases were consolidated for the
purposes of hearing and decision. Pursuant to notice, the
consolidated cases were heard in Morgantown, West Virginia, on
June l~ and 14, 1989. Bretzel Allen, Patrick Grimes,
Paul Mitchell and Ronald Tulanowski testified on behalf of the
Secretary; David Stout, Ernest Weaver, Frank Zuleski,
Wesley Dobbs, Pat Zuchowski, Michael Miano, Wesley Hough and
Charles Arnold testified on behalf of SOCCO. Both parties have
filed posthearing briefs. I have considered the entire record

2018

and the contentions of the parties, on the basis of which I make
the following decision.
FINDINGS OF FACT
SOCCO is the owner and operator of an underground coal mine
in Marion County, West Virginia known as the Martinka No. 1 Mine.
The mine produces approximately 2 million tons of coal annually;
the operator produces slightly less than 12 million tons annually.
During the past three years, SOCCO has had approximately one
significant and substantial violation per inspection date. I
have no reason to conclude that this is a substantial history of
prior violations, and therefore will not increase any appropriate
penalty because of it. Prior to the order contested herein, the
subject mine has riot had "an intervening inspection free of
unwarrantable failure violations since September 1, 1989." The
violation cited in the order contested herein was abated in a
timely fashion.
I

On January 30, 1989, during the day shift Federal coal mine
Inspector Bretzel Allen was making a triple A inspection of the
subject mine. He was accompanied by a union representative, a
company representative and an MSHA supervisory inspector Paul
Mitchell. Inspector Mitchell was present for the purpose of
evaluating and rating the quality of Allen's inspection. The
party travelled to the E-3 longwall section. The longwall face
was about 700 feet long. There were about 144 roof support
shields on the longwall, each with two pontoons at the base of
the shield. The pontoons had coal, rock and emulsion oil packed
on them and between and behind the pontoon jacks. Some of the
pontoons contained packed coal, some mixed coal and rock. Most
were mixed with oil but some were dry. Mitchell states that this
was about the shoddiest longwall that he had been on in a while:
there was coal and grease on and in the shields and there were
cans and boards lying in the area.
There was an accumulation of loose coal, resulting from
spillage off the longwall face, in the tailgate entry. This was
in a "wind-row" about 7 or 8 feet wide, 4 feet high and 60 or 70
feet long. About 52 feet was toward the gob area from the
longwall C"inby" see R. 33); about 18 feet extended outby, toward
the block of coal being cut. No rock dust had been applied to
the coal accumulation.
The MSHA inspectors and company officials discussed SOCCO's
longwall clean-up program. No citations or orders were issued.
for the accumulations seen on the E-three longwall section. When
it appeared that socco did not have a written clean-up plan, a

2019

section 104(d)(2) withdrawal order was issued for failure to have
such a plan. Before the order was served, a copy of a clean-up
plan was found, and the order was withdrawn.
II
During the afternoon of January 30, 1989, the longwall
supervisor, Ernest Weaver, assigned six people to clean the
shields from number 96 to 48 (the shields were numbered 1 to
144). The crew completed cleaning shields 96 to 58. A later
shift apparently cleaned shields 48 to 58. SOCCO officials
estimated that -0f the 144 shields approximately three quarters
had been cleaned and one quarter not cleaned prior to the
inspector's return to the area on January 31. The inspector
testified that 4 or 5 pontoons had been cleaned, but most of them
still had a mixture of coal, rock, and emulsion oil packed on the
faces of the pontoons of the shields. He issued a section
104Cd)(2) withdrawal order citing the accumulationR on the
pontoons and an accumulation in the tailgate entry of the
longwall section which will be discussed hereafter. I find as a
fact that SOCCO cleaned shields 96 through 48, and few if any
others. Thus 48 shields were cleaned and 96 were not. On
January 31, SOCCO too~ samples of the material on the shields,
beginning with shield one and every fifteenth shield thereafter.
The combustible matter in the samples ranged from 15.05 percent
(No. 30 shield) to 45.22 percent Cl\Jo. 1 shield).
CSOCCO Ex. 17).
SOCCO had a chemical auto-ignition point test performed on
shields 1, 15 (29.12% combustible), 45 (18.34% combustible), 120
(28.49% combustible) and 144 (34.81% combustible). ~utoignition
point is defined as the temperature required to initiate or cause
self-sustained combustion in any substance in the absence of a
spark or flame.
(SOCCO Ex. 19). .Bituminous coal has an
autoiognition point of 765 degrees Fahrenheit. The test of the
five samples raised the temperature to 900 degrees Fahrenheit
without producing any flame. The foregoing establishes that the
samples tested consisted of noncombustible material. I find that
the samples were fairly representative of the material on all the
shields. Therefore, I find that the accumulations on the shields
on January 31, 1989, were not combustible.
III
In the tailgate entry on January 31, 1989, there was a
wind-row of coal approximately 37 inches deep, 7 feet wide,
extending 18 feet from the longwall face inby to the yielding
point of the shield anq 40 feet back into the gob line. Rock
dust had been applied since the inspection of January 30. The
inspector testified that a small amount of rock dust had been
scattered over the accumulation, perhaps one bag. SOCCO's
witnesses testified that the area was heavily rockdusted and that

2020

five bags of rock dust had been applied, the same amount
normally applied after a pass of the longwall. The inspector
took a sample· from the accumulation. The sample was analyzed at
an MSHA laboratory and found to be 20.8 percent incombustible.
(Govt. Ex. 3). Based on the sample, on the testimony of
Inspector Allen and UMWA walkaround miner Grimes, and on the
photographs of the area (SOCCO Ex. 4-9), I find as a fact that
the accumulation in the tailgate entry consisted largely of loose
coal and was combustible.
IV
The tailgate entry outby the longwall shields is a return
air entry and an alternate escapeway from the longwall face. A
fireboss must examine this area weekly. On January 31, 1989, two
miners were cutting at the No. 10 shield with an open flame torch.
An electrical cable travels the length of the longwall face
during production. The loader on the tailgate is an electrically
operated motor.
REGULATIONS
30 C.F.R. § 75.400 provides as follows:
Coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on electric equipment
therein.
30 C.F.R. § 75.2(g)(4) provides as follows:
'Active workings' means any place in a coal mine where
miners are normally required to work or travel.
ISSUES
1. Whether on January 31, 1989, there was loose coal and
other combustible materials on the longwall shield pontoons, or
in the tailgate entry of the E-3 longwall section of the subject
mine?
2. Whether the tailgate entry of the longwall section
constitutes active workings?
3.
If a violation is established, was it significant and
substantial?
4.
If a violation is established, was it caused by SOCCO's
unwarrantable failure to comply with the standard?

2021

5. If a violation is established, what is the appropriate
penalty.
CONCLUSIONS OF LAW
I

SOCCO is subject to the provisions of the Act in the
operation of the Martinka No. 1 Mine and I have jurisdiction over
the parties and subject matter of this proceeding. SOCCO is a
large operator.
II
The Secretary has failed to establish that the accumulations
on the longwall shield pontoons on January 31, 1989, consisted of
combustible material. Therefore, she has failed to establish
that this condition was violative of 30 C.F.R. § 75.400.
III
The evidence does establish that the loose coal in the
tailgate entry of the E-3 longwall section was combustible. It
was not cleaned up and was permitted to accumulate. The evidence
further establishes that the 18 feet of such accumulations outby
the longwall shield line existed in an area where miners are
normally required to travel. Therefore it was in active workings.
A violation of 30 C.F.~. § 75.400 is established.
IV

A violation is properly designated as significant and
substantial if there is a reasonable likelihood that the hazard
contributed to would result in serious injury. Cement Division,
National Gypsum Co., 3 FMSHRC 822 (1981); Florence Mining Co., 11
FMSHRC 74 7 (1989). Although the accumulation could provide fuel
for a fire, and although there are potential ignition sources on
the longwall, there is no evidence as to the "likelihood" of a
fire, nor is there evidence from which I reasonably could infer
that a fire is reasonably likely. The Secretary has failed to
carry her burden of establishing that the violation was
significant and substantial.

v
A violation is caused by unwarrantable failure if it results
from aggravated conduct, constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997 (1987). The
accl,lffiulation in the tailgate entry existed and was pointed out to

2022

SOCCO on January 30, and had obviously existed for some time
prior thereto. Despite these facts, SOCCO failed to clean up or
inert the accumulations be.fore the inspection on January 31.
I
conclude that this establishes aggravated conduct, constituting
more than ordinary negligence. The violation was the result of
SOCCO's unwarrantable failure to comply with the standard.
VI
SOCCO is a large operator; its history of prior violations
will have no effect on the penalty. The violation was moderately
serious, and resulted from SOCCO's unwarrantable failure.
The
violation was abated in a timely fashion.
I conclude that $700
is an appropriate penalty.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Order No. 3117373 issued January 31, 1989, is MODIFIED
to remove the designation of significant and substantial and, as
modified, is AFFIRMED.
2.

The Notice of Contest is GRANTED in part and DENIED in

part.
3. SOCCO shall within 30 days of the date of this order pay
the sum of $700 as a civil penalty for the violation found
herein.

,
1

I J)
I
. //_
fl ·ilt'..LA •. lf//.../i?:-di>fi:t:,'L--

•v

1

James A. Broderick
Aclllinistrative Law Judge

Distribution:
David M. Cohen, Esq., American Electric Power Service Corp., 161

W. Main Street, P.O. Box 700, Lancaster, OH 43130 (Certified
Mail)
Mark R. Malecki, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
slk

2023

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

OCT 18 1989
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 89-64-M
A.C. No. 29-00917-05504

v.

San Antone Pit

GALLUP SAND & GRAVEL COMP ANY,
Respondent
DECISION
Appearances:

Brian L. Pudenz, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas,
For Petitioner;
Frank A. Kozeliski, Materials Engineer, Gallup Sand
Sand and Gravel Co., Gallup, New Mexico,
For Respondent.

Before:

Judge Lasher

This matter was commenced by the filing of a Complaint
Proposing Penalty by the Petitioner on April 17, 1989, seeking
penalties for 6 violative conditions described in 6 Citations
issued on October 19, 1988, by MSHA Inspector William Tanner, Jr.
Respondent concedes the occurrence of the violations CT. 5,
6), but primarily questions the appropriateness of the amount of
penalties (totalling $188) sought by Petitioner.
Respondent also pointed out that it had not been previously
cited during prior MSHA inspections for the same or similar violations (T. 6, 7; Letter dated May 9, 1989).
Taking this question
first and viewing the allegations in this connection and the
evidence presented most generously in favor of Respondent, a New
Mexico corporation which was not represented by legal counsel,
the question of the applicability of the doctrine of equitable
estoppel will be deemed raised and briefly considered. The
Respondent made out no credible case factually that the conditions
cited in any of the 6 Citations involved here had been specifically
evaluated by the Secretary's representative at any prior time and
determined to be within the boundaries of the pertinent regulations.
In other words, a factual foundation of the precision which would
be required to cause one to conclude that there was a clear-cut or
enlightened prior "non-enforcement" by MSHA inspectors previously
was not presented. In any event, in Secretary of Labor v. King
Knob Coal Company, Inc., 3 FMSHRC 1417 (1981), the Commission
has generally rejected the doctrine of equitable estoppel.

2024

However, it also viewed the erroneous action of the Secretary
(mistaken interpretation of the law leading to prior nonenf orcement) as a factor which can be considered in mitigation
of penalty, stating:
"The Supreme Court has held that equitable estoppel
generally does not apply against the federal government. Federal Crop Insurance Corp. v. Merrill, 332
U.S. 380, 383-386 (1947); Utah Power & Light Co. v.
United States, 243 U.S. 389, 408-411 (1917). The
Court has not expressly overruled these opinions,
although in recent years lower federal courts have
undermined the Merrill/Utah Power doctrine by permitting estoppel against the government in some
circumstances. See, for example, United States v.
Georgia-Pacific Co., 421 F.2d 92, 95-103 (9th Cir.
1970). Absent the Supreme Court's expressed approval
of that decisional trend, we think that fidelity to
precedent requires us to deal conservatively with
this area of the law.
This restrained approach is
buttressed by the consideration that approving an
estoppel defense would be inconsistent with the
liability without fault structure of the 1977 Mine
Act. See El Paso Rock Quarries, Inc., 3 FMSHRC 35,
38-39 (1981). Such a defense is really a claim that
although a violation occurred, the operator was not
to blame for it.
Furthermore, under the 1977 Mine Act, an equitable
consideration, such as the confusion engendered by
conflicting MSHA pronouncements, can be appropriately
weighed in determining the appropriate penalty ••• "
Accordingly, the doctrine of equitable estoppel will not be
applied to the enforcement actions of the Secretary here.
However,
the Respondent's evidence in this connection will be considered
in determining penalties.
Preliminary Penalty Assessment Factors
The parties stipulated that Respondent, which operates a
readi-mix crushed-stone operation CT. 28, 51) in the vicinity of
Albuquerque, New Mexico, is a small mine operator CT. 73).
It
had a history of 2 prior violations prior to the occurrence of
the violations in question. Petitioner conceded that Respondent,
after notification of the violations, proceeded in good faith to
promptly abate the same CT. 17). Respondent made no claim that
payment of reasonable penalties or penalties at some given monetary
level would jeopardize its ability to continue in business.

2025

Penalty Assessment
Two of the six Citations (Nos. 3274946 and 3274948) involved
so-called "significant and substantial" violations.
rt w!i.s the
inspector's unrebutted opinion, and the record clearly substantiates such, that both of these violations were the result of
a "moderate" degree of negligence on Respondent's part and were
serious in nature since it was reasonably likely that the hazards
posed by the violations could have occurred and that injuries
resulting therefrom could have been permanently disabling, and,
in the case of Citation No. 3274946, even fatal.
These penalties
will not be increased in view of Respondent's apparent belief
that it was proceeding in compliance with the regulations involved
CT. 6, 42). MSHA's assessment of $54 each for these two violations
is found appropriate and here assessed.
The four remaining Citations (Nos. 3274949, 3274950, 3274951
and 3274952) were all considered by MSHA to not be "significant
and substantial" and were given routine $20.00 single penalty
assessments. The inspector who issued these Citations attributed
the violations to have occurred as a result of but "moderate"
negligence on the part of Respondent.
These are modest penalties
and I find no basis to disturb the Secretary's assessments.
ORDER
Cl)

The six subject Citations are affirmed.

(2)
Respondent is ordered to pay the Secretary of Labor
within 30 days from the date hereof the total sum of $188 as and
for the civil penalties above assessed.

7?,A;·k,/··~-r: ;~':/i:f /},.
Michael A. Lasher, Jr.
Administrative Law Judge
Distribution:
Brian L. Pudenz, Esq., Office of the Solicitor, U.S. Department of
Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 (Certified
Mail)
Mr. Frank A. Kozeliski, Gallup Sand & Gravel Company, 601 West
Roundhouse Road, P.O. Drawer 1119, Gallup, NM 87301 (Certified
Mail)

/ot
2026

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

OCT 18 1989
DISCRIMINATION PROCEEDING

WINSTON MADDEN,
Complainant

v.

Docket No. KENT 89-62-D

RONALD SUMMERS AND SUMCO,
Respondents

BARB CD 88-46

DEFAULT DECISION
Before:

Judge Maurer

On December 28, 1988, complainant filed a Complaint,
alleging a violation of section 105(c}(l} of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 815(c}(l}. There was
no response from the respondents, so on February 13, 1989, Chief
Judge Merlin issued an Order directing the operator to answer or
show cause within 30 days. On March 13, 1989,~ an Answer was
received and on March 17, 1989, the case was assigned to this
administrative law judge.
On April 26, 1989, complainant, by counsel, filed a set of
interrogatories and requests for production. When no responses
were received, complainant filed a motion to compel discovery and
for attorney fees with me on June 5, 1989. No responsive
pleading to this motion was filed. On July 20, 1989, I issued an
Order granting complainant's motion to compel discovery and
awarding complainant $156.25 as attorney fees for the time spent
by his lawyer in obtaining this order. That order directed the
respondents to answer complainant's interrogatories, produce the
documents sought and pay the attorney fees awarded within the
following 15 days, or by August 4, 1989.
On August 18, 1989, complainant filed a motion for default
decision, alleging that the respondents had &till not responded
in any manner to complainant's discovery requests and had not
paid the awarded attorney fees, as ordered on July 20.

On September 6, 1989, a response to this latest motion was
received from counsel of record for respondents. He asserted
that since May of 1989, he has not been able to contact the
respondents herein and has been informed that they are no longer
living at their former address. He was unable to obtain any
forwarding address for them and has likewise been unable to
contact them by telephone.

2027

On September 12, 1989, I issued an Order to respondents to
show cause within 10 days why they should not be held in default
for failure. to comply with my order of July 20, 1989. There has
been no response to date.
After reviewing the entire file of this proceeding once
again, I am of the opinion that because of the respondents'
extremely lackadaisical approach to the defense of this case,
outlined above, they have waived any further right to a hearing.
Therefore, complainant's motion for default decision IS GRANTED.
Accordingly, I find that as alleged in the Complaint:
1. Complainant Madden was employed by Sumco and Summers for
approximately 4 months prior to his discharge on June 14, 1988,
as a welder and general laborer.
2. On June 14, 1988, Madden was assigned to cut out
(remove) a section of an abandoned coal tipple located at the
mine site operated by Sum.~ers and Sumco.
3. Complainant Madden was discharged by Summers on June 14,
1988, because of his refusal to continue working on the tipple
unless safety precautions were taken; and because he had pulled
down part of the tipple with an endloader in order to abate a
hazardoua condition.
4. The discharge of Madden by Sµmmers on June 14, 1988,
violated section 105(c)(l) of the Federal Mine Safety & Health
Act of 1977.

ORD;ER
It is ORDERED that:
1. Complainant shall file a statement within twenty (20)
days of this Decision, indicating the specific relief requested.
The statement shall be served on the respondents who shall have
twenty (20) days from the date service is attempted to reply
thereto.
2. This Decision is not final until a further Order is
issued with respect to complainant's relief. In the event that a
contested issue of fact arises as to the proper type or quantum
of damages due the complainant, a hearing on that issue or issues
will be required.
I

·1

f/

4

,/ ' I ! '

I\_~~/~-· ~,. t ;.tt.\,l\..: V\I

Roy J. Maurer

Admini;str~tive
...

_-·

2028

Law Judge

Distribution:
Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 {Certified Mail)
Rodney E. Buttermore, Esq., Forester, Buttermore, Turner &
Lawson, P.O. Box 935, Harlan, KY 40831 {Certified Mail)

/ml

2029

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

OCT 18 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF FRED BARTLEY,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. KEN·r 89-102-DM
Jenkins Quarry

ADAMS STONE CORPORATION,
Respondent
DECISION
Appearances:

Before:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Complainant; David Adams, Esq., Vice-President,
Adams Stone Corporation, Pikeville, Kentucky, for
Respondent.

Judge Broderick

STATEMENT OF THE CASE
The Secretary brings this case on behalf of Fred· Bartley,
and claims that on March 29, 1988, Bartley was discharged from
his job with Respondent because he complained to MSHA about
unsafe conditions at Respondent's limestone quarry. Respondent
contends that Complainant was suspended for three days for
insubordination, and was thereafter laid off in accordance with
the seniority provisions of the uniori contract. Following a
hearing before an arbitrator, Complainant was reinstated to his
position as crusher operator. He was awarded and received back
wages and other benefits to the date of his layoff. The three
day suspension was upheld by the arbitrator. When Complainant
returned to work, he was assigned to the job of plant walker. &e
was told not to run the crusher and was limited to working eight
hours per day. the plant was on strike from January 15, 1989 to
July 13, 1989. Complainant has been working since July 13, 1989.
Pursuant to Notice, the case was called for hearing in Wise,
Virginia, on July 20, 1989. Fred Bartley, James G. Roberts,
Jimmy Ray Woods, Vernon Denton, William R. Talley and
Ernest R. Thompson testified on behalf of Complainant.
Stuart H. Adams and Darrell Webb testified on behalf of
Respondent. Both parties were given the opportunity to file

2030

post-hearing briefs. The Secretary filed such a brief;
Respondent did not.
I have considered the entire record and the
contentions of the parties and make the following decision.
FINDINGS OF FACT
Respondent operates a limestone quarry in Letcher County,
Kentucky, known as Jenkins Quarry. The operation includes open
pit mining of stone, a primary crusher plant, a secondary crusher
plant, a blacktop plant, a block plant and a "ford shop" where
mechanical work is performed on equipment. the crushed limestone
is used in highway and building construction. The mining
operation is normally discontinued in the winter months, although
some of the employees are retained to do maintenance and repair
work.
Complainant Bartley has been employed by Adams Stone
since September 1977. In 1987 and for five or six years prior
thereto, Bartley operated the gyrodisc crusher on the night shift.
The gyrodisc crusher crushed stone into limestone dust, which was
used in asphalt making. He worked with limited supervision. The
Superintendent, Darrell Webb, complained in September 1987, that
Bartley was not operating the crusher at full capacity and not
enough dust was being produced. Bartley testified that Webb was
intoxicated and abusive. For these reasons, Bartley shut down
his machine and went home. He returned to work the next day.
He underwent eye surgery in Dec~nber 1987, and was off work until
about March 20, 1988. Between March 20 and March 28, he was
doing labor work and repair work. On March 28, he was doing
repair work on the gyrodisc crushers, taking hoses off and
repairing or replacing the hoses which were leaking. Stuart
Adams, President of Adams Stone, who had a short time before
assumed active supervision of the quarry, angrily questioned
Complainant about why he was removing the hoses.
He seemed
satisfied after Complainant explained what he was doing. Later
the same day Bartley was taking a short break after pumping 55
gallons of oil into a tank with a hand pump and lifting several 5
gallon buckets of oil onto to a beltline.
Adams walked by and
told Bartley to get a shovel and get back to work. Subsequently
Adams asked Bartley to place some 4x4 pieces of wood under the
secondary crusher which was being lowered to the ground by a
crane. The crusher weighed about eight tons. Bartley was
concerned because the crane was known to slip and fall free and
he told Adams he would place the 4x4s under the crusher after it
was lowered closer to the ground.
Adams became angry. He cursed
and told Bartley to put the boards under the crusher now.
Bartley also became angry and told Adams he would put them down
when he got "damn ready." After the crane lowered the crusher
close to the ground, Bartley put the boards under it and the
crusher was lowered on top of the boards. At that point Bartley
1

2031

told .Adams he was tired of hearing his big mouth. Adams told him
if he did not want to work, he could go home.
However, Bartley
continued working until the end of his shift.
The following day Adams told Bartley that he was suspended
for three days for insubordination. Bartley replied that he
would call the OSHA inspector who would be at the plant the next
day. The following day an MSHA inspector came to the plant,
having received a 103Cg) complaint alleging a loader without
brakes, a crane subject to free falls, drinking on the job, and
failure to wear hard hats. When the Inspector contacted Adams,
Adams was very angry and initially refused to permit the
inspector to go on the premises. He later cooled down and the
inspection proceeded. A loader was inspected and found to have
adequate brakes. The crane had no load on it, so the inspector
took the crane operator's word that the crane was operating
properly. The inspector did not find any evidence of drinking,
nor did he see anyone not wearing a hard hat who would be
required to wear one. He notified the operator of his negative
findings.
During the three day suspension, the operator notified
Bartley that he was laid off because the night shift was being
discontinued. Adams subsequently told an MSHA investigator that
one reason for the "layoff" was the fact that Bartley called MSHA
with a 103Cg) complaint.
I find as a fact that Bartley was laid
off in part because he made safety complaints to MSHA which
resulted in an MSHA inspection. Bartley filed a grievance under
the collective bargaining contract. The grievance went to
arbitration. The arbitrator decided that Cl) the three day
suspension was for just cause and (2) Bartley's layoff was not in
accordance with the provisions of .the contract. She ordered the
company to reinstate Bartley to his classification of crusher
operator and to pay all back wages and other benefits which he
lost because of the improper layoff. He returned to work and was
paid 40 hours per week straight time for the period of time that
he was off.
During the time Bartley was off on his suspension, the
company learned that the rock which had been ordered for a
highway project in East Kentucky would not be needed until August.
Adams then directed his superintendent to cut the work crew back
to 8 hours per shift with no overtime and to eliminate the
operation of the gyrodisc crusher for the time being.
In the winter 1987-88, Respondent essentially rebuilt its
plant: each of the crushers was torn down and rebuilt; new
monitoring devices and a computer system were installed, as well
as new feed systems and new belt scales.

2032

ISSUES
1. Whether the three day suspension of Complainant on
March 28, 1988, was adverse action for activity protected under
the Mine Act?
2. Whether the layoff or discharge of Complainant on March
29, 1988, was adverse action for activity protected under the
Act?
3. If either issue No. 1 or issue No. 2 is answered in the
affirmative, what remedies should be awarded and assessed?
CONCLUSIONS OF LAW
I

Complainant Bartley and Respondent are subject to and
protected by the provisions of the Act, Complainant as a miner
and Respondent as a mine operator. I have jurisdiction over the
parties and the subject matter of this proceeding.
Under the Act, a miner establishes a prima facie case of
discrimination if he proves that he was engaged in protected
activity and was subjected to adverse action which was motivated
in any part by the protected activity. Secretary/Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3rd Cir. 1981)~ Secretary/Robinette v. United Castle Coal
Co., 3 FMSHRC 803 (1981>. The mine operator may rebut the prima
facie case by showing either that no protected activity occurred
or that the adverse action was no~ motivated in any part by the
protected activity. If the operator cannot rebut the prima facie
case in this manner, it may defend affirmatively by proving that
it was also motivated by the miner's unprotected activity, and
would have taken the adverse action for that activity in any
event.
II
Bartley's three day suspension resulted in part from his
refusal to place boards under the crusher being lowered by a
crane. Bartley testified that he believed it was dangerous to
approach the crusher until it was close to the ground. I
conclude that this was a good faith, reason~ble refusal to
perform work which he considered dangerous. Therefore, the work
refusal was activity piotected under the Act. Because the
suspension was motivated in part by the protected activity,
Complainant has established a prima facie case of discrimination
for the suspension. Respondent, however, has shown that the

2033

suspension was also motivated by unprotected activity, namely by
Bartley's statement to Adams that he was tired of hearing Adams'
big mouth. I am persuaded by Adams' testimony that this was the
primary reason for the suspension, and I conclude that Respondent
would have taken the adverse action for that reason alone.
III
Although Stuart Adams denied that he told the MSHA
investigator that one of the reasons he laid off Bartley was
because of his safety complaints to MSHA (Tr. 243-4), I conclude,
based on the statement made to the investigator, that he did so.
I further conclude that in fact he laid off Bartley primarily
because of his safety complaints to MSHA. Therefore Complainant
has made out a prima facie case under the Pasula test.
Respondent contends that it would have laid Bartley off in any
event for reasons not related to protected activity, namely
because the night shift gyrodisc crusher was not being operated.
I conclude that Respondent has not met its burden of proving that
it would have laid off Bartley in any event for unprotected
activity.
Bartley was classified as a crusher operator. The
arbitration proceeding established that he had seniority over
another employee who was retained.
I conclude that the layoff
was motivated by protected activities, and the alleged business
motive was a pretext. The evidence establishes that the lay off
was in violation of section lOSCc) of the Act.

IV
The Secretary contends that Complainant is entitled to back
pay measured by the number of hours worked by Tommy Roberts, the
other crusher operator, including·the overtime hours worked by
Roberts. The evidence does not establish that Bartley would have
worked the same number of hours as Roberts or that he would have
worked overtime. t conclude that Bartley is entitled only to
regular time wages for forty hours per week during the time he
was laid off until he was ordered back to work in September 1988
and worked until the plant was shut down for the season.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. The three day suspension of Bartley on March 29, 1988
was not in violation of section 105(c) of the Act.
2. The "layoff" of Bartley on March 29, 1988, was in
violation of section 105Cc> of the Act.

2034

3. Complainant was reinstated to his position of crusher
operator by an arbitrator under the union contract. Respondent
shall pay Complainant back wages, based on a 40 hour week, from
the date of the layoff until the date of his reinstatement, with
interest thereon computed in accordance with the Commission
decision in UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (1988).
Respondent shall have credit for the amount paid as back wages
following the arbitration decision. Respondent shall also pay
complainant other benefits to which he was entitled and which
were withheld during the time of his layoff.
4. The parties shall attempt to agree on the amount due
Complainant under the above order. If they cannot agree, the
Secretary shall within 20 days of the date of this decision,
submit a statement of the amount she believes is due.
Respondent
shall have 10 days thereafter to reply.
5. Respondent and its officers and agents shall CEASE and
DESIST from discriminatory acts against its employees for making
safety complaints to the Secretary.
6. Respondent shall expunge from its employment records all
references to the unlawful layoff or discharge of Bartley.
7. Respondent shall, within 30 days of the date this
decision becomes final, pay to the Secretary a civil penalty in
the amount of $1000 for the violation found herein.
8. This decision is not final until the amount due
Complainant under No. 3, above, is determined.

.t
A

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James A. Broderick
Administrative Law Judge

Distribution:
Thomas A. Groans, Esq., U.S. Department of Labor, Office of the
Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Mr. David Adams, Vice President, Adams Stone Corp., P.O. Box
2320, Pikeville, KY 41501 (Certified Mail)
slk

2035

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

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

OCT 2 0 19.89
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
GREEN RIVER COAL CO., INC.,
Respondent

.
..
.

.
.

CIVIL PF.NALTY PROCEEDING
Docket No. KENT 89-126
A.C. No. 15-13469-03699
Mine l\Jo. 9

DECISION
Appearances:

Before:

Joseph B. Luckett, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Secretary of Labor (Secretary);
B. R. Paxton, Esq., Paxton & Kusch, Central City,
Kentucky, for Respondent Green River Coal Co., Inc.
(Green River).

Judge Broderick

STATEMENT OF THE CASE
The Secretary seeks a civil penalty for a violation of 30
C.F.R. § 75.200 charged in a section 104(d)(2) order of
withdrawal issued November 21, 1988. Pursuant to notice, the
case was called for hearing in Owensboro, Kentucky, on
September 12, 1989. George L. Newlin testified on behalf of the
Secretary; Michael McGregor testified on behalf of Green River.
The record was kept open to allow the Secretary to file a
computer print out of prior violations by Green River at the
subject mine. Green River contends that the history is not
relevant because of a change in management of the mine. Both
parties have filed posthearing briefs on this issue and I will
discuss and decide that question in this decision. I have
considered the entire record and the contentions of the parties
in making this decision.
FINDINGS OF FACT
Green River is the owner and operator of an underground coal
mine in Hopkins County, Kentucky, known as the Green River No. 9
Mine. The management of the mine changed in November 1988. MSHA
agrees that the new management has a new attitude toward safety:

2036

it is aware of safety problems and is trying to correct them.
Weekly safety meetings are held involving all employees.
On November 21, 1988, Federal mine inspector George Newlin
was engaged in an on-going gene.raJ.. inspection ("AAA inspection")
of the subject mine.
tn the Northwest B return aircourses, he
observed that one row (on the left side) of timbers had been
knocked down and not replaced. Some of the timbers on the right
side were down and the right side was covered with gob. The area
was passible, but with difficulty.
At least 30 days prior to
November 21, the gob, resulting from rock falls, had been cleaned
out of an adjacent entry and deposited in the entry in question.
At the same time the timbers had been knocked down. The fireboss
book had referred to the condition for seven weeks. The roof was
bolted and supported and was in stable condition. The area where
the timbers were down extended for a distance of 120 to 300 feet.
Timbers were missing on both sides for about 50 feet, and on the
left side for more than 120 feet. The entire entry was about 910
feet long.
Inspector ~ewlin issued a section 104(d)(2J withdrawal order
alleging a violation of 30 C.F.R. § 75.220 because the timber
line was not continuous in the return from crosscut No. 65 to
crosscut ~o. 52 as required in the approved roof control plan.
The approved roof control plan in effect at the mine
required one return aircourse to be timbered. A double row of
timbers is required, six feet apart, with five foot centers on
the advance. The area is required to be travelled every seven
days by the fireboss.
Otherwise, miners are not normally in the
entry.
Respondent has about 200 employees. It produces more than
one million tons of coal annually. The history of prior
violations shows that 1,074 paid violations were cited during the
24 months prior to the order involved herein, of which 139 were
roof control violations. Since the new management took over
about November 15, 1988, only one (d) order has been issued to
Green Kiver, the one involved here.
The order was terminated December 12, 1988, when timbers

were set in the entry as required by the roof control plan.
abatement was effected promptly and in good faith.
"REGULATION
30 C.F.R. § 75.200 provides in part as follows:
(aJ(l) Each mine operator shall develop and follow a
roof control plan, approved by the District Manager,

20~7

The

that is suitable to the prevailing geological
conditions, and the mining system to be used at the
mine.
Additional measures shall be taken to protect
persons if unusual hazards are encountered.

ISSUES
1. Whether the evidence establishes a violation of 30
C.F.R. § 75.220 on November 21, 1988?
2. If so, whether the violation resulted from Green River's
unwarrantable failure to comply with the standard?
3.
If a violation is established what is the proper
penalty?
a.

In view of the change in mine manag~nent, is it
proper to use the two year history of prior
violations as a criterion in determining the
appropriate penalty?

CONCLUSIONS OF LA.W
Green River is subject to the provisions of the Federal Mine
Safety and Health ~ct (the Act) in the operation of the subject
mine, and I have jurisdiction over the parties and subject matter
of this proceeding.
The evidence clearly establishes that Green River was not in
compliance with its approved roof control plan in the ~orthwest B
return aircourse o.n November 21, 1988. A substantial number of
posts required by the plan were dislodged, and had been dislodged
.Eor many weeks. The inspector believed the condition was not
significant and substantial because it was unlikely to result in
injury: the roof was in stable condition and was adequately
bolted.
However, the condition had existed for a substantial period
of time and had been noted in the f ireboss book for seven weeks.
The company must have been aware of the condition and, until the
order was issued, it made no attempt to correct it. The
Commission has held that unwarrantable failure is established by
a showing of aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997 (1987). The
circumstances here clearly point to aggravated conduct
constituting more than ordinary negligence:
the repeated
cefecences in the fireboss book which were ignored establish
moce than ordinary negligence. Green River's atte1npt to show
that the Eiceboss was attempting to persuade the company to
timber the adjacent entry which had a higher roof is a lame

2038

excuse. The order including the unwarrantable failure finding
should be affirmed.
At the hearing, it was agreed that the computer printout of
Green River's violation history_cpuld be offered post-hearing.
Respondent objected on the ground of relevance, arguing that the
change in management of the mine on November 15, 1988, renders
any prior history of violations irrelevant and immaterial. Green
River Coal Co., Inc., is a corporation ~nd has been the operator
of the subject mine during the entire period in question.
Section llOCi> of the Act obliges me to consider "the operator's
history of previous violations" as one criterion in determining
an appropriate penalty. See Secretary v. Peabody Coal Co., 1
FMSHRC 28 (1979).
Although the history of prior violations is therefore a
statutorily mandated criterion to be considered in fixing the
amount of the penalty, the improved safety record and safety
outlook of the new management should also be taken into
consideration. The purpose of the civil penalty provisions of
the A.ct is to promote safety in the mines, not to collect money
for the Federal Government.
I conclude that under all the circumstances of this case an
appropriate penalty is $300.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1.

Order No. 3296525 issued November 21, 1988, is AFFIRMED.

2.
Respondent shall, within 30 days of the date of this
decision, pay the sum of $300 as a civil penalty for the
violation found herein.

2039

Distribution:
Joseph B. Luckett, Esq., U.S. Department of Labor, Office of the
Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 CCertif ied Mail)
B. ~. Paxton, Esq., P.S.C. 213 E. Broad Street, P.O. Box 655,
Central City, KY 42330 (Certified Mail)
slk

2840

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

OCT 2 O1989
CONTEST PROCEEDINGS

FMC WYOMING CORPORATION,
Contestant

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,
Respondent

..

Docket No. WEST 89-170-RM
Order No. 2647760; 2/28/89

.

Docket No. WEST 89-171-RM
Order No. 2648041; 2/28/89

.
.

Docket No. WEST 89-179-RM
Order No. 2647759; 2/28/89
FMC Trona Mine
Mine I.D. No. 48-00152

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,
Petitioner

CIVIL PENALTY PROCEEDING

.

v.

Docket No. WEST 89-355-M
A.O. No. 48-00152-05572
FMC Trona Mine

FMC WYOMING CORPORATION,
Respondent
DECISION APPROVING PARTIAL SETTLEMENT
Before:

Judge Lasher

Three of the four enforcement documents in the above
penalty docket are the subject of an agreement reached by the
parties. One of the enforcement documents resolved, Order
No. 2647758, is not related to any contest docket.
The remaining (fourth enforcement document, Order No. 2647760, is
related to Contest Docket No. WEST 89-170-RM, and the parties
have Cl) reached a contingency agreement thereto depending on
the determination by the D.C. Circuit Court of Appeals of the
Secretary's appeal of a Commission decision in an unrelated
case (Western Fuels-Utah, Inc., Docket Nos. WEST 86-113-R and
WEST 86-114-R). Thus, by separate Order, this penalty docket,
WEST 89-355-M (since it is not entirely resolved) and related
Contest Docket WEST 89-170-RM are being stayed pending the
aforesaid decision by the D.C. Circuit Court.

2041

In summary, the partial settlement reached by the parties
is as follows:
Related Contest
Docket No.

Citation/
Order No.

Proposed
Penalty

Settlement

WEST 89-170-RM
WEST 89-171-RM
WEST 89-179-RM
(None)

2647760
2648041
2647759
2647758

$1,000
1,000
3,000

(Stayed)
$ 500
500
2,000

$5,000

$3,000

As to Citation No. 2647759 in Docket No. WEST 89-179-RM, the
parties have also agreed that the "unwarrantable failure" aspect
of this enforcement should be deleted by the modification of the
Citation to reflect its issuance under Section 104(a) of the Act
rather than under Section 104(d) thereof.
The settlement is well-supported in the stipulation signed
by both parties and, in the premises, is found reasonable and
here approved.
ORDER
Citation No. 2647759 is MODIFIED to reflect its issuance
under Section 104(a) of the Act rather than Section 104(d)
thereof, and is otherwise AFFIRMED.
Withdrawal Order No. 2648041 is AFFIRMED.
Contestant/Respondent, if it has not previously done so,
is ordered to pay to the Secretary of Labor within 50 days from
the date hereof the total sum of $3,000.00 as and for the civil
penalties agreed on and here assessed.
Contest Proceedings numbered WEST 89-171-RM and WEST
89-179-RM are DISMISSED.

~J;b/Lr-,(7 ?(, ~£t1 ft
Michael A. Lasher, Jr.
Administrative Law Judge

2042

Distribution:
Matthew F. McNulty, III, Esq., Vancott, Bagley, Cornwell &
McCarthy, 50 South Main Street, Suite 1600, Salt Lake City,
UT 84144 (Certified Mail)
Edward Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
/ot

2043

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

OCT 2 3 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, CMSHA)
Petitioner

v.
CONSOLIDATION COAL COMPANY,
Respondent

.
..
.
...
.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 89-20
A. C. No. 46-01433-03848
Loveridge No. 22 Mine

:
DECISION

Appearances:

Ronald Gurka, Esq., Office of the Solicitor
U. s. Department of Labor, Arlington, Virginia,
for Petitioner1
Michael R. Peelish, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for
Respondent.

Before:

Judge Merlin

This case is a petition for the assessment of a civil
penalty for an alleged violation filed by the Secretary of
Labor against Consolidation coal Company, under the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 820. An evidentiary hearing was held on September 12, 1989. The parties
have filed post-hearing briefs.
Citation No. 3106116 dated August 29, 1988, charges a
violation of 30 C.F.R. § 75.401 for the following condition
or practice:
"Excessive coal dust (visual) can be
seen during mining operations in the air over
the continuous mining machine, the dust is
coming back to the operators compartment,
through the miner boom and out both side's
where the mounted roof bolters are located.
Tom Chickerell is the foreman in charge."
30 C.F.R. § 75.401 which is a restatement of section 304(b)
of the Act, 30 u.s.c. § 864Cb), provides as follows:
§

75.401 Abatement of dust1 water or
water with a wetting agent.

2044

Where underground mining operations in
active workings create or raise excessive
amounts of dust, water or water with a
wetting agent added to it, or other no less
effective methods approved by the Secretary
or his authorized representative shall be
used to abate such dust.
In working places,
particularly in distances less than 40 feet
from the face, water, with or without a
wetting agent, or other no less effective
methods approved by the Secretary or his
authorized representative, shall be applied
to coal dust on the ribs, roof, and floor to
reduce dispersibility and to minimize the
explosion hazard.
30 C.F.R. § 75.401-1 defines "excessive amounts of dust" as
follows:
The term "excessive amounts of dust"
means coal and float coal dust in the air in
such amounts as to create the potential of an
explosion hazard.
At the prehearing conference prior to going on the record
counsel for both parties agreed to several stipulations which
were placed on the record at the hearing (Tr. 4). These
stipulations are as follows:
1.

The operator is the owner and operator of the subject

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

I have jurisdiction in this case.

4. The inspector who issued the subject citation was a duly
authorized representative of the Secretary.
5. A true and correct copy of the subject citation was
properly served upon the operator.
6. Copies of the subject citation and termination are
authentic and may be admitted in evidence for purpose of establishing their issuance but not for the purpose establishing
the truthfulness or relevancy of any statements asserted therein.
7.
Imposition of a penalty will not affect the operator's
ability to continue in business.
8.

The alleged violation was abated in good faith.

20_45

9. The operator's history of violations reveals 999
assessed violations and 978 inspection days in the 24-month
period preceding the subject violation, which is an average of
1.02 violations per inspection day.
10.

The operator's size is large.

The MSHA insoector testified he was at the mine on the day
in question to conduct a regular inspection (Tr. 11). Upon
arrival on the six left section he checked a new conveyor system
(Tr. 12). He then proceeded to a continuous miner which was
being operated in a cross-cut (Tr. 12). According to the inspector alot of coal dust was being generated from the cutting bits
of this continuous miner (Tr. 12). He determined there was
one-half inch of dust on the right side of the continuous miner
near the roof bolter (Tr. 16). The inspector described how the
dust was coming off the front of the miner, the right and left
sides, and the hinge points (Tr. 18). The dust rolled back from
the face to the point where the roof bolter was located and then
further back past the cab of the continuous miner operator (Tr.
16). The coal was soft and because it was not virgin coal, it
was dry (Tr. 28). These characteristics created more dust (Tr.
59). The inspector said the dust was so thick it was like a
sandstorm CTr. 62).
Contrary to the inspector's testimony, the operator's safety
escort who accompanied him stated the dust was normal (Tr. 98).
He agreed the dust rolled back to where the roof bolter was, but
said this was normal (Tr. 103). He could not remember whether
the dust went as far back as the continuous miner operator (Tr.
105). The operator's respirable dust supervisor who did not
visit the scene until the day after the citation was issued, did
not see much difference between the cited continuous miner and
other machines that were in operation elsewhere (Tr. 75}. He
agreed that the coal was extremely soft, but said that because
of this it produced less dust (Tr. 70-71).
This case therefore, presents the not unusual situation of a
conflict between the inspector and the operator's witnesses
regarding the cited condition. After a review of all the evidence I find the inspector's testimony more persuasive.
As set
forth above, his description regarding depth, location, and movement of the dust was more precise and detailed than that of the
operator's witnesses. The operator's safety escort did not offer
any specifics to support his conclusion that the dust was normal.
In fact, his statement written at the time the citation was
issued contradicted his testimony at the hearing by reporting the
condition of the area as 11 excessive accumulations of visual dust
on the miner. 11
(Resp. Exh. No. 2).
On the crucial point of
whether the dust was carried as far back as the continuous miner
operator, the escort testified he could not remember (Tr. 105i.
The operator's dust supervisor was not present on the day the
citation was issued and he offered nothing concrete to support

2046

his statement that on the next day he saw nothing unusual CTr.
75).
Then too, conditions in a mine change from day to day and
shift to shift (Tr. 106). Accordingly, the inspector's
description of the cited situation is accepted.
As set forth above, "excessive dust" is defined as
coal dust in such amounts as to create the potential of an
explosion hazard.
In this connection I accept the inspector's
testimony that the dust in suspension in the face area was
sufficient to ignite and that friction from the bits on the
continuous miner as well as electrical components on the miner
constituted ignition sources (Tr. 25, 39).
In addition, heat
itself could ignite the dust (Tr. 25, 73).
Mining was going on
while the inspector was present (Tr. 15-16).
In light of these
circumstances, I conclude the dust created the potential of an
explosion hazard and that therefore, a violation has been
proved.
See Black Diamond Coal Mining Company, 7 FMSHRC 1117,
1120-1121 (August 1985).
I have not overlooked the fact that in attempting to abate,
a second set of extra sprays installed by the operator did not
help and were removed CTr. 47, 79). This circumstance does not
affect the existence of a violation as found herein and it does
not alter the fact that as the inspector stated, the first set of
additional sprays made the situation alot better (Tr. 45, 47-49).
I also take note of the operator's argument that no violation
existed because it was in compliance with its respirable dust
plan.
This assertion cannot be accepted.
The record shows only
that no citation was issued for respirable dust, not that there
was compliance (Tr. 55).
In fact, the respirable dust records
submitted by the operator were for different dates and places
than those involved in this case (Resp. Exh. No. 1, Tr. 89-91).
Finally, although respirable dust and excessive dust violations
may involve consideration of the same or similar facts they are
by no means synonymous and one can exist without the other.
The next issue is whether the violation was significant and
substantial.
The Commission has held that a violation is
properly designated significant and substantial if, based on the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in
an injury or illness of a reasonably serious nature.
Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained.
In order to establish that a violation
of a mandatory safety standard is signif icant and substantial under National Gypsum,
the Secretary of Labor must prove:
Cl) the
underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that
is, a measure of danger to safety--contri-

2047

buted to by the violation; (3) ~ reasonable
likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.
The Commission subsequently explained that the third element
of the Mathies formula "requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result
in an event in which there is an injury" U. S. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984).
As set forth above, a violation existed.
As explained
herein the evidence establishes the potential of an explosion
hazard.
Potential means possible.
See Websters Third International Dictionary (1986) and Random House Dictionary, Second
Edition (1987).
The possibility of a frictional dust ignition
presented a discrete safety hazard.
However, the evidence does
not rise to the level of establishing a reasonable likelihood
that the dust hazard would result in an event in which there
would be an injury. The inspector described possible ignition
sources and dust ignition from heat but he did not explain why an
ignition would be reasonably likely.
The inspector said an
ignition was "highly probable" with this type of equipment but he
failed to support this assertion (Tr. 39). Finally, although the
inspector estimated ignition as probable or "highly probable" he
also portrayed it as "possible" (Tr. 25, 39, 55). In light of
the foregoing, the finding of significant and substantial is
vacated.
As I have previously held, significant and substantial is
not synonymous with gravity.
Secretary of Labor v. A. H. Smith
Stone Comoany, 11 FMSHRC 1203 (1989). A violation may not rise
to the level demanded by the Commission for significant and substantial, but still possess a degree of gravity. This is such a
case.
The amount of dust was serious because it presented the
possibility of explosion or fire.
I find gravity was moderate.
The operator was guilty of ordinary negligence.
I accept
the inspector's testimony that the foreman was in a position to
see what the inspector saw (Tr. 42).
Although the sprays had
been cleared at the start of the shift it was obvious they were
not doing the job when the inspector arrived (Tr. 32-33).
In assessing an appropriate civil penalty good faith abatement is one of the factors to be considered under section llO(i)
of the Act.
30 u.s.c. § 820Ci). As set out above, the parties
stipulated to good faith abatement.
But particular note is taken
of the great effort expended by the operator in this respect.
The remaining llO(i) criteria are covered by the
stipulations.

2048

In light of the foregoing, I determine a penalty of $175 is
appropriate.
The post hearing briefs of the parties have been reviewed
and were very helpful in reaching a decision. The efforts of
counsel are much appreciated. To the extent the briefs are
inconsistent with the decision, they are rejected.
ORDER
It is ORDERED that the finding of a violation in Citation
No. 3106116 be AFFIRMED and that the Citation be AFFIRMED.
It is further ORDERED that the finding of significant and
substantial be VACATED.
It is further ORDERED that a penalty of $175 be ASSESSED.
It is further ORDERED that the operator PAY $175 within 30
days from the date of this decision.

-

Paul Merlin
Chief Administrative Law Judge

Distribution:
Ronald Gurka, Esq., Office of the Solicitor, U. S. Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA
22203
(Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA
15241 (Certified Mail)
Robert Stropp, Esq., UMWA, 900 15th Street, N.W., Washington, DC
20005 (Certified Mail>
/gl

2049

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

22041

OCT 2 4 1989
BUFORD SMITH,

DISCRIMINATION PROCEEDING
Complainant
Docket No. KENT 88-201-D

v.
R.J.F. COAL COMPANY, INC.,
Respondent

BARB CD 88-45

DECISION
Appearances:

Mr. Buford Smith, Hazard, Kentucky, for Complainant~
Leon Hollon, Esq., Hollon & Hollon, Hazard,
Kentucky, for Respondent.

Before:

Judge Weisberger

Statement of the Case
This is before me based upon a Complaint filed by Buford
Smith (Complainant) on September 14, 1988, alleging discrimination by R.J.F. Coal Company (Respondent) under section 105(c) of
the Federal Mine Safety and Health Act of 1977 (the Act). On
April 5, 1989, an Order was issued directing the Respondent,·
within 30 days of the Order, to file an Answer to the Complaint
or show good cause for the failure to do so. On June 27, 1989,
Respondent filed a response to the Show Cause Order, and a Motion
to Permit Late Filing of the Answer. This response established
good cause to permit the late filing of the Answer, and the
Answer is considered as being filed as of June 27, 1989. Pursuant to notice, the case was heard in Johnson City, Tennessee, on
September 21, 1989. At the hearing Irvin Neace, Claude Branson,
Gary Goodson, Shade Neace, and Buford Smith testified for
Complainant. Kevin Moore, Braxton Mullins, Boyd.Wilson testified
for Respondent.
Issues

1. Whether the Complainant has established that he was
engaged in an activity protected by the Act.
2. If so, whether the Complainant suffered adverse action
as the result of the protected activity.

2050

3.

If so, to what relief is he entitled.

Stipulations .

1. At all relevant times iq this action, including
February 11, 1988 (the date of.layoff), the Respondent, RJF Coal
Company, operated surface mines located at Vicco in Perr1 and
Knott Counties, Kentucky, and at Red Oak in Knott County,
Kentucky. The pcoducts of these coal mines enter the stream of
commerce ..vithin the meaning of the Act.
2. Buford Smith, Complainant, first became employed by a
company known as River Processing, Inc. on August 6, 1981. River
Processing, Inc. was subsequently acquired by and became a subsidiary of Coal Ridge Fuel, Inc. on Dece~ber 22, 1983. Thereafter,
the surface coal mining operations of the companies were conducted by an affiliated general partnership, RJF Coal Company.
Buford Smith was hired by Respondent, RJF.Coal Company, on
December 23, 1983, and was a "miner" within the meaning of the
Act. RJF Coal Company was later incorporated and also became a
subsidiary of Coal Ridge Fuel, Inc.
3. At the time of the layoff at issue in this case,
Respondent, RJF Coal Company, employed approximately 130 persons
at its various operations and at its offices. Of these, approximately 70 were em9loyed in the surface mining operations.
4. At the time of the layoff on February 11, 1988,
Complainant, Buford Smith, was earning $10.50 per hour for a
40-hour week.
In addition, he earned $15.75 per hour for any
hours worked in addition to 40 hours per week. Employees
recalled from the layoff accepted a 10 percent pay reduction upon
their return on March 12, 1988.
5.
In late November or early December, 1988, the Board of
Directors of the Respondent voted to dissolve Respondent,
RJF Coal Company, in conjunction with negotiations for the acquisition of approximately 50 percent of the outstanding corporate
stock of Respondent's parent corporation, Coal Ridge Fuel, Inc.
Articles of Dissolution for Reclpondent were filed with the
Secretary of State on November 26, 1988. After the sale of the
stock was consummated on February 1, 1989, the name of RJF's
cocpocate parent was subsequently changed to Diamond May Coal
Company·.
6. Diamond May Coal Company laid off all remaining surface
coal mining employees of the company at the Red Oak and/or Vicco
surface mines on July 14, 1989, and has now entered into contract
mining arrangements for the operation of both mines. The only
.remaining company employees are employed in its off ice as
clerical staff or in the field as part of its tipple or reclamation crew.

2051

Findings of Fact and conclusions of Law
Cornpla.inant first became employed by a company knm•m as
River Processing, Inc. on August 6, 1981. River Processing, Inc.
was subsequently acquired by and became a subsidiary of Coal Ridge
Fuel, Inc. on December 22, 1983. , Thereafter, the surface coal
mining operations of the companies were conducted by an affiliated
general partnership, RJF Coal Company. Complainant was hired by
Respondent, RJF Coal Company, on December 23, 1983, and was a
"miner" within the meaning of the Act. RJF Coal Company was later
incorporated and also became a subsidiary of Coal Ridge Fuel, Inc.
Irwin Neace, who worked for Respondent, RJF Coal Company for
approximately 1 1/2 years commencing in January 1984, indicated
that during that time he replaced the brake chambers on the
lowboy that Buford Smith drove for Respondent. Buford Smith indicated that the brakes on his Birmingham Lowboy had been repaired
by mechanic Irvin Neace, sometime in 1986, but th~~ after that
time the brakes began to deteriorate. He indicated that he was
scared to drive the lowboy, but he had to work to support his
family and send his children to college. He indicated that in
early 1987 and on several occasions thereafter, he told Jimmy
Ambergey and Glenn Sharpe, Respondent's mechanics, to work on the
brakes, as he knew that the lining was gone and that new brakes
were needed. He indicated that Sharpe told him that he.did not
have time to work on the bcakes, and Ambergey told him to see the
foreman Bill O'Donnell. He said that O'Donnell or another supervisor would tell him that he needed to do production work first.
Specifically, he indicated that when he told O'Donnell in the
spring of 1987, that he needed to have the orakes fixed on the
lowboy, O'Donnell said that he would do the best that he could.
He indicated that whenever he had_ to mo~e a dangerous piece of
equipment, which occurred daily, he "probably" talked to O'Donnell
about the brakes (Tr. 78). He said that "several dozen times" he
mentioned to O'Donnell about the brakes (Tr. 78). He said that
O'Donnell sometimes said he'll fix it and sometimes he said for
Smith to see the mechanics. Smith indicaced that on the few
occasions when he did go to the mechanics, he did not get any
"action" from the mechanics (Tr. 79). Smith also indicated that
on "several occasions" over a 2-yeac period prior to his layoff
in February 1988, he told Lloyd Harvey, Respondent's purchasing
agent, that the lowboy did not have any brakes, but does not
recall Harvey's response <Tr. h6). He also indicated that in
1987, he received a total of a half a dozen citations from the
Tennessee Department of Transportation ·for faulty brakes. He
said that when this occurred, he called into Respondent's Office

2052

on a CB Radio, but did not receive any response with cegard to
the citations. He said that when he arrived in the office he
presented the citations to Harvey who did not say anything.
Smith also indicated, in essence, that in the summer of 1987,
after he had an incident where brakes did not work, he spoke to
Chesten Wooton and told him th~t~the brakes were "out" on the
lowboy and that it was unsafe (Tr. 95).
Gary Goodson, one of Respondent's foremen, indicated that
probably in the fall of 1986, he observed that while Smith was
driving the lowboy down a wet hill, the brakes locked up and
agreed that the lowboy slid "quite a ways" (Tr. 48). He indicated that he told Smith the same thing he told other persons,
i.e., that if he is afraid to operate a piece of equipment he
should not do so.~/
The Commission, in a recent deci3ion, Goff v. Youghiogheny &
Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reitecated the
legal standards to be applied in a case wnere a miner has alleged
acts of discrimination. The Co1nmission, Goff, supra, at 1863,
stated as follows:
A complaining miner establishes a prima facie case of
prohibited discri1nindtion under the Maine Act by proving
that he engaged in protected activity and that the
adverse action complained of was motivated in any part
by that activity. Pasula, 2 FMSHRC at 2797-2800;
Secretary on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 803, 817-18 (April 1981). The Operator
may rebut the prima facie case by showing either that
no protected activity occurred or that the adverse
action was not motivated in any part by protected
activity. Robinette, 3 FMSHRC at 818 n. 20. See also
Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59
(D.C. Cir 1984)~ Boich v. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983) (Specifically approving the Commission's
Pasula-Robinette test).

~/

Smith indicated that Goodson told him "if it was me I would
not drive." Having observed the demeanor of the witnesses I find
Goodson's version more credible.) Shade Neace was asked whether
Smith had problems with the brakes on the lowboy and said "you
better believe it"(Tr. 53). He indicated that in the latter pact
of 1986, or early 1987, he was driving with Smith on a real steep
incline and indicated that there were no tractor brakes and the
tractoc was being pushed by the trailer and the drill.

2053

I firid, based upon the above testimony, that Smith did perceive that there was a problem with brakes on the Birmingnarn
Lowboy, and did communicate this concern to Respondent. As such
I find that he did engage in protected activities.
In order for the Complainant to prevail herein, he must
establish not only that he engaged in protected activities, but
that adverse action taken against him by Respondent was motivated
in any part by the protected activities (Secretary on behalf of
Robinette v. United castle Coal Co., 3 FMSHRC 803, 817-18 (1981)).
According to Smith, when he spoke with Wooton in the summer of
1987, and informed him that the brakes were out on the lowboy,
and that i t was unsafe to haul it, the latter told him "you will
do it if you stay here" (Tr. 94). He also indicated that in the
summer or fall of 1987, when he was hauling a wide load, he was
concerned that he might be given a citation by the Tennessee
Department of Transportation and so informed Howard Woolum (check
spelling) who told him "~e'll get you out if it takes us 5 years"
(Tr. 98). He also indicated that O'Donnell threatened him four
or five times in the summer of 1987 and 1988, and that they
argued a few times concerning hauling on the steep grade. He
indicate<l that on one occasion O'Donnell told him that the same
road that brought him in will take him out. Smith indicated that
approximately 1 1/2 to 2 weeks before he was laid off in
February 11, 1988, he turned the Birmingham Lowboy upside down.
He indicated that when O'Donnell asked him why he did it, he told
him that he was not going to drive it again as it did not have
any brakes. He indicated that it had only one good spring out of
four.
He said that O'Donnell told him "it looked like thit was
about it for me (you)" (Tr. 81, sic).
Smith indicated that on February 11, 1988, at quitting time,
35 to 40 employees at Respondent'·s Red Oak location, including
himself, received a paper indicating that they were laid off
until further notice due to a slowdown of work. Smith indicated
that he took it for grant?d that he was fired, and concluded that
O'Donnell's previous comments in response to his turning the
Birmingham Lowboy upside down, were to be interpreted as his
being fired.
However, according to the uncontradicted testimony
of Kevin Moore, the assistant secretary/treasure of Diamond May
Coal Company, the successor to RJF, the latter was operating at a
loss for a number of years, and in the mo::lth of January 1988, had
lost $303,000. He indicated that on February 11, 1988,
120 employees were laid off, including 70 at the surface and
reclamation locations.

2054

I thus find that Smith's lay off was motivated by
Respondent's economic conditions. The evidence is insufficient
to establish. that the lay off of Smith was motivated in any part
by protected activities.2
Braxton Mullins indicated.that he, Boyd Wilson, and Lou
Warrix were asked by Edward L. Clemens, in essence, to act as
consultants to manage Respondent's above ground operations.
Mullins, Wilson, and Warrix decided to rehire various categories
of employees who had been laid off on February 11, and to rehire
them based upon seniority within the various job categories.
Mullins obtained a list from Respondent's personnel office
listing all previously laid off employees and their job titles.
Mullins had the off ice staff aiso indicate the dates that
employees were hired by RJF. He then fed this information into a
computer ana obtained a printout whereby, for each job category,
the employees were listed in order of seniority. According to
Braxton and Wilson no other persons were involved in this process
aside from the two of them and Warrix.
In order to reduce mining
cost, not all employees were called back.
Indeed, 20 employees,
including Smith, who had been laid off on February 11, 1988, were
not recalled. Those who were rGcalLed were recalled on the basis
seniority.~/

2/ Claude Branson indicated on direct examination that maybe
5 ionths prior to Smith's dismissal he (Smith) was threatened by
Larry Bowling, over "thls safety thing" and about "braKes"
c·rr. 35). Bowling was an owner of Coal Ridge Fuels for whom
Respondent operated the facility and in which Smith was employed.
However, I did not place much weight on Branson's testimony in
this regard as on cross-examination he indicated that the
incident occurred back in the middle of the summer of 1987, and
that he did not over hear any conversation between Smith and
Bowling in which brakes were discussed.
~/

There were only two exceptions. In one situation, Bowling
was unable to fill all of the necessary dozer positions. As most
of of the previous employees, who were dozer operators, already
had other jobs. Accordingly, Mullins consulted with Foreman
Donald Hilton, who indicated that another employee had dozer
experience and he was hired. According to the uncontradicted
testimony of Mullins, he and Hilton did not discuss Smith in this
connection.
In addition, a decision was made to rehire two day
shift oilers rather than the night shift oiler who was more
senior, as there was no need for a night oiler, and the latter
(day shift oilers) had better experience.

2055

Wilson and Mullins indicated with regard to rehiring those
who were laid off on February 11, 1988, that they had not
discussed their decision with any of Respondent's foreman or
supervisors and the decision was made solely by the two of them
and Warrix:.
In contrast, Respondent testified that O'Donnell had
threatened him, and that O'Donnell was friendly on a social bases
with Cl~mens, one of the principles of RJF.
I find that it is
mere speculation, and totally without foundation, that O'Donnell
had discussed the firing of Smith with Clemens. Also I did not
place much weight on Branson's testimony, that Bowling, a principle in Coal Ridge Fuels, had threatened to dismiss Smith with
regard to safety of the brakes, as Branson indicated in crossexamination that he did not hear any conversation between the two
in which the issue of the brakes was discussed. Thus, I find,
based on the testimony of Mullins and Wilson, that the decision
not to rehire Smith was based solely on business reasons, and not
motivated in any part by Smith's protected activities. Hence I
£ind that Respondent did not discriminate against Smith in violation of section 105(c) of the Act.
(See, Secretary on behalf of
Robinette, supra).
ORDER
It is hereby ORDERED that the complaint herein be DISMISSED
and this case be DISMISSED.

ALis~

Administrative Law Judge

Mr. Buford Smith, Route 2, Box 329, Hazard, KY 41701 (Certified
Mail)
Leon Hollon, Esq., Hollon, Hollon, & Hollon, P. O. Box 779,
Hazard, KY 41701 (Certified Mail)
dcp

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

OCT241989
CONTEST PROCEEDING

CONSOLIDATION COAL COMPANY,
Contestant

Docket No. PENN 88-252-R
Citation No. 3096663; 6/14/88

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEAL'rH
ADMINISTRA'rION CMSHA),
Respondent

Dilworth Mine
Mine ID 36-04281
DISCRIMINATION PROCEEDING

UNITED MINE WORKERS OF AMERICA
ON BEHALF OF EDWARD BANDISH,
Complainant

PENN 89-43-D

v.
PITT CD 88:-21
CONSOLIDATION COAL COMPANY,
Respondent

Dilworth Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 89-76
A. C. No. 36-04281-03652

v.
Dilworth Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Michael J. Healey, Esq., Healey, Davidson & Hornack,
Pittsburgh, Pennsylvania, for Edward Bandish;
David J. Laurent, Esq., Polito and Smock, P.C.,
Pittsburgh, Pennsylvania, for Respondent;
Covette Rooney, Esq., Office of the Solicitor, U. s.
Department of Labor, Philadelphia, Pennsylvania, for
the Secretary.

Before:

Judge Weisberger

Statement of the Cases
In these consolidated cases, the Operator (Respondent),
contests a finding by the Secretary (Petitioner), that it violated
section 103(f) of the Federal Mine Safety and Health Act of 1977,

2057

and the Petitioner seeks a civil penalty alleging a violation of
section 103Cf), supra. In addition, the Complainant seeks various
declaratory ~elief, alleging that Respondent discriminated against
him in violation of section 105(c) of the Act, by denying him his
rights under section 103Cf) to accompany an inspector during an
inspection of Respondent's mine.· Subsequent to discovery, and
pursuant to notice, the cases were heard in Pittsburgh,
Pennsylvania, on July 11, 1989. James Samuel Conrad, Jr. testified
for Petitioner, Paul Edward Bandish and Larry E. Swift testified
for Complainant, and Phillip Mark Rebottini, Louis Barletta, Jr.,
and Mark Schultz testified for Respondent. At the hearing, at the
conclusion of the Petitioner's case, Respondent made a Motion for
Directed Verdict, and decision was reserved. Post Hearing Briefs
were submitted by Complainant and Respondent on September 28, 1989.
Petitioner filed Proposed Findings and Facts and a Memorandum on
October 1, 1989.
Stipulations

1. The Dilworth Mine is owned and operated by the Respondent,
Consolidation Coal Company.
2. The Dilworth Mine is subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977.
3. The Administrative Law Judge has jurisdiction over these
proceedings.
4. The subject Citation and order were properly served by a
duly authorized representative of the Secretary of Labor, upon an
agent of the Respondent at the dates, times and places stated
therein, and may be admitted into evidence for the purpose of
establishing their issuance, and riot for the truthfulness or
relevancy of any statements assesued therein.
5. The assessment of a civil penalty in this proceeding will
not affect the Respondent's abilit~ to continue in business.

6. The appropriateness of a penalty, if any, to the size of
the Respondent's business should be based upon the fact that the
Respondent's company and mine size are large.
7. The Dilworth Mine was assessed a total of 368 violations
over 513 inspection days.
8. The Parties stipulate to the authenticity of their
exhibits, but not to their relevance or the truth of the matters
asserted therein.

2058

Findings of Fact and Discussion
At approximately 11:30 p.m. on June 2, 1988, MSHA Inspector
James Samuel Conrad, Jr. arrived at Respondent's Dilworth Mine to
continue a Triple A Inspection during the midnight shift commencing
12:01 a.m., June 3, 1988. Larry E. Swift, a Safety Committee
member of the Local Union, was scheduled to work the midnight
shift, and was the designated wal.l(around to accompany Conrad, and
Conrad was so informed. Prior to the commencement of the
inspection, Conrad ran into Paul F.dward Bandish, a miner employed
by Respondent on its day shift.
Bandish, who was not scheduled to
work the midnight shift, was at the mine to give a section 103(g)
complaint, concerning certain meetings, to Swift. Banuish, in his
capacity as Chairman of the Local Safety Committee, requested of
Conrad to accoinpany him and Swift on the inspection. Neither
Bandish nor Conrad indicated that Bandish presented any specific
reason in support of his request.
Bandish indicated that he did
not know that Conrad was going to be conducting an inspection on
the midnight shift, and Conrad indicated that prior to Bandish's
request, he had not intended to ask for an additional walkaround.
In response to Bandish's request, Conrad indicated that he did not
have any problem with the request, and so informed Bandish.
In
addition Conrad suggested that Bandish in turn check with
management. Bandish then made his request of the shift foreman,
-Phillip Mark Rebottini, who in turn conferred with his supervisor
Mine Superintendent Louis Barletta, Jr.
Barletta in turn called
his supervisor Bill Porter, Respondent's Vice President, who
checked with legal counsel. Barletta was advised that Respondent
had the right to deny Bandish access, and Barletta so 'informed
~ebottini.
According to Rebottini, he was informed by Barletta to
deny Bandish the right to accompany the inspector, inasmuch, as the
inspector already had a paid walkaround, from the night shift, to
accompany him and Bandish was a day shift employee.
According to
Conrad he met with Rebottini,
Steven Wolf, Bandish, and Swift, in
the maintenance office, and informed Robottini that "an extra set
of eyes has always been beneficial in the conducting of my
inspections," CTr. 43). He also told them that in the past an
additional walkaround has brought matters to his attention.In this
connection, Conrad indicated that the belt line was one of the
items that had not yet been inspected, and there would be a more
thorough examination with him on one side of the belt line, and the
additional walkaround (Bandish) on the other side, along with the
miner's original wal~around and ~espondent's representative.
In
this cortnection he said that he believed that Bandish was
~nowledgeable and had experience as a ~alkaround.
Bandish, in
essence, corroborated the testimony of Conrad that the latter s~id
soinething about "his eyes and everybody eyes" (Tr. 109, sic), and
informed Wolf, Swift, and Rebottini that, in essence, with :nore
persons present at an inspection, there is a better chance of
observing conditions.

Rebottini indicated, on two occasions in his testimony, that
Conrad said that he had the authority to take as many walkarounds
as were needed. However, Rebottini indicated specifically that
Conrad did not use the word "need," and that he did not say that an
extra set of eyes would aid the inspection. He indicated that
Conrad did not say anything about needing Bandish, or that having
Bandish accompany him would aid the inspection. It is significant
to note that Swift, who was present when Conrad allegedly made a
statement to the effect that an extra set of eyes would be helpful,
did not corroborate Conrad's version. According to Swift, Conrad
merely indicated that if Bandish was not allowed as an additional
walkaround, he would issue a citation, and that if the Company
wanted another walkaround, it was acceptable. Also, although
Bandish corroborated Conrad's version and stated, in essence,
that, when testifying, he r~nembered all the items he testified to,
he indicated that, in January 1989, he suffered a head injury which
affects his memory. Further, it is significant to note that in
notes contemporaneous to the events at issue, Conrad indicated, in
essence, that in response to Bandish's request, he had "no trouble"
with Bandish traveling with him (Goverrunent Exhibit 2). There is
no reference to an "extra set of eyes" as being helpful, nor is
there any statement indicating specifically that Bandish would aid
in the inspection. In the same fashion, in a statement signed by
Conrad on June 27, 1988, less than 4 weeks after the incidents in
question occurred, he indicated that "there was no special reason
for Bandish to travel with me as far as I know."
(Respondent's
Exhibit 1). Further, on cross-examination, Conrad indicated that
prior to the time Bandish requested to serve as an additional
walkaround he (Conrad) had no intention to have an additional
walkaround, and had not determined which areas of the mine to
inspect. He indicated that there were several areas to inspect,
including the belt line. Although Bandish had experience as a
walkaround, and in Conrad's opinion was "knowledgeable," and could
have observed conditions on the side of the belt line opposite
where Conrad would walk, it is clear that the regular walkaround,
Swift, could function in the same manner. Further, it should be
noted that Bandish did not know that Conrad was to be at the mine
on the midnight shift, and did not express any intention of going
to the mine on June 2, to bring any matters to the attention of
Conrad concerning any underground conditions.
(According to
Bandish, his only reason for being on the premises was to present
to Swift a 103(g) complaint concerning some meetings). Thus, I
conclude that there is not sufficient evidence to support a finding
that Conrad, on June 2, 1988, made any determination that Bandish
would further aid his inspection.
In order for the Complainant to prevail in his 105(c) action,
he must first establish a violation of section 103(f), suora.
Similarly, Petitioner's petition for assessment of civil penalty is
predicated upon a violation of section 103(f), supra. As

2060

pertinent, section 103(f), supra provides as follows:
" • • • To
the extent that the Secretary or an authorized representative of
the Secretary determines that more than one cepresentative from
each Party would further aid the inspection, he can permit each
Party to have an equal number of such additional representatives."
Thus, based upon dreading of section 103(f), supra, and giving a
plain meaning to its terms, it is clear that Respondent has a duty
to allow an additional walkaround Cand tne Complainant has a right
to be the additional walkaround), only if the Inspector
"determines" tnat such additional walKaround "would further aid the
inspection." In the in~tant case as analyzed above, the evidence
fails to establish that such a determination was made.
Accordingly, it is concLuded that Complainant has not established
that he has been denied the exercise of any rights under section
103Cf), supra, and has not been aiscriminated against under section
105(c)(l) of the Act. Similarly, inasmuch as there has not been a
violation of section 103(f), supra, the petition for assessment of
civil penalty herein shall be dismissed and the Respondent's Notice
of Contest shall be sustained.
ORDER
1. It is hereby ORDERED that Docket No. PENN 89-43-D be
DISMISSED.

2.

Docket No. PENN 89-76 be DISMISSED.

3. The Notice of Contest, Docket No. PENN 88-252-R, is
SUSTAINED.

·Ll~

Avram Weisberger
Administrative Law Judge
Distribution:

Michael Healey, Esq., Healey, Davidson & Hornack, 1906 Law and
Finance Boulevard, Pittsburgh, PA 19219 (Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Covette Rooney, Esq., Office of the Solicitor, u. s. Depactment of
Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
dcp

2061

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

OCT 2 4 1989
.

...

.

TUNNEL'rON MINING COMPANY,
Contestant

v.

CONTEST PROCEEDING
Docket No. PENN 88-258-R
Citation No. 2888637; 6/21/88

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Respondent

.

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

:

Marion Mine
Mine ID 36-00929

CIVIL PENALTY PROCEEDING
Docket No. PENN 88-333
A. C. No. 36-00929-03638

v.
Marion Mine
TUNNELTON MINING COMPANY,
Respondent

.
DECISION

Appearances:

Joseph Yuhas, Esq., Tunnelton Mining Company,
Ebensburg, Pennsylvania, for the Respondent;
Thomas A. Brown, Esq., Office of the Solicitor,
U. s. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary.

Before:

Judge Weisberger

Statement of the Case
In these consolidated cases, the Secretary (Petitioner)
seeks a civil penalty for an alleged violation by the Operator
(Respondent) of 30 C.F.R. § 77.1710Ch). Pursuant to notice, these
cases were heard in Bellefonte, Pennsylvania on June 19, 1989. Rex
Margart and Kenneth Dice testified for· Petitioner, and Harold
Kirru~el and Darryl Hanna testified for Respondent.
Proposed
Findings of Fact and Memorandum of Law were filed by Respondent and
Petitioner on September 21 and 25, 1989, respectively. A Reply
Brief was filed by Respondent on October 1, 1989.

2062

Stipulations
1. The Marion Mine is owned and operated by Respondent,
Tunnelton Mining Company. Tunnelton Mining Company is a subsidiary of the Pennsylvania Mines Corporation.
2. Tunnelton Mining Company and the Marion Mine are subject
to the jurisdiction of the Federal Mine Safety and Health Act of
1977.
3. The Administrative Law Judge has jurisdiction over this
proceeding, pursuant to Section 105 of the 1977 Act.
4. The inspector who issued the subject citation was a duly
authorized representative of the Secretary of Labor.
5. A true and correct copy of the subject citation was
properly served upon the Operator in accordance ~ith Section 104
of the 1977 Act.
6. Copies of the subject citation and termination may be
admitted into evidence for the purposes of establishing their
issuance, and not for truthfulness or relevance of any statements
asserted therein.

7. Respondent demonstrated good faith in the abatement of
the citation.

8. The assessment of a civil penalty will not affect
Respondent's ability to continue in business.
9. The Respondent's annual production tonnage is
1,435,690 tons.
10. The Marion Mine produces an annual production of
773,668 tons.
11. Tunnelton Mining Company was assessed 327 violations
over 522 inspection days during the 24 months pl:'.'eceding the
issuance of the subject citation.
12. 'l?he printout of the civil penalty complaint reflects the
Secretacy of Labor's history of violations at the Marion Mine.
Findings of Fact and Discussion

I.
On June 21, 1988, Respondent's employees Harold Kimmel and
Darryl Hanna, W·8re in the process of reil\oving a pump from a. "'1ater
clariEier bin in order to reoaic it. Hanna stood on a catwalk
alongside a boom post and wa~ catcheting a chain in order to

2063

raise the pump which was submerged in the bin. Kimmel was
approximately 4 feet below Hanna, and had his left foot on a
4 inch angle iron and his right foot on a pipe. He had his knee
on a pipe and was leaning over the bin in order to attach a chain
to the pump.
(See, Government Exhibits 3-A, 6, 7, and 8 for a
depiction of the position of Kimniel's right leg CR) and left
leg CL), as testified to by Rex Morgart, an MSHA Inspector.)
Although the testimony of Kimmel and Hanna was at variance with
that of Morgart with regard to where the former had positioned
his left foot, I accept the version testified to by Morgart, due
to my observations of the witness' demeanor on this point, and
also due to the fact that Morgart's testimony related specifically to what was observed by him, whereas the testimony of
Kimmel did not specifically describe the placement of his left
foot when he was observed by Morgart.l/ Kimmel thus was
positioned in a leaning over position-facing away from the
catwalk and above the water. He was approximately 2 to 3 feet
from the top of the water, and the water was approximately
12 feet deep. Kimmel had his left hand either on the structure
or the chain, and was using his right hand to unhook the chain
from the pump.
According to Kimmel, the pump, which was
approximately 18 inches in diameter, was located a couple of feet
in front of him when he reached for the chain.
Kenneth Dice, a mechanic for Respondent who accompanied
Morgart on his inspection, indicated that the pump was directly
below Kimmel, and that Kimmel was probably "a wee bit" to the
right.
I accepted the testimony of Kimmel with regard to the
position of the pump, relative to where he was working, as he was
directly involved in the operation, and the record does not indicate where Dice was standing in relation to Kimmel. Thus,
inasmuch as Ki1~~el was straddling a structure, had his left foot
on an angle-iron that was only 4 inches wide, was holding on with
only his left hand, leaning over water located about 2 feet. below
him, and reaching below him, I conclude that a reasonably prudent
person would have recognized a danger of falling, and would have
worn a lift jacket or belt. Accordingly, I find that Respondent
herein did violate section 77.1710Ch).
(See Austin Power, Inc.,
9 FMSHRC 2015 (December 1937).

,!/

Hanna testified in general as to where Kimmel stood, but did
not specifically contradict Morgart's testimony with regard to
the placemeni: of Kimmel's feet as Jepicted in Government
Exhibit 3A, 6, 7, and 8.

2064

II.
Morgart indicated that in his opinion the violation herein
was significant and substantial in tnat, if a worker would be
_
without a belr. or life jacket every time ti.1e pump was brought up,
then there would be "a chance 11 ·of a fatality or a serious injury
(Tr. 38).
He said that there have been serious injuries in
falling over the top of a bin including fatalities.
He said, in
essence, over a period of time there would be a reasonably likelihood for one to drown or lose one's balance, and strike one's
head against two or three objects which were present. Dice
opined that there was a "very good chance" of slipping and
hitting one's head on a railing (Tr. 61) He said that in such an
event a person" • • • could have knocked himself out or drowned."
(Tr. 61, emphasis added.)
In order for a violation to be significant and substantial,
in addition to establishing a violation of a illandatory safety
standard and a discrete safety hazard, it must be established
that there was a reasonable likelihood that the hazard contributed to would result in an injury-producing event.
(See,
Mathies Coal Company 6 FMSHRC at 3-4 (January 1984); Austin Power
Inc., supra.) The discrete safety hazard contributed to by the
violation herein,k was the danger of falling into the water.
However, Kinunel was supported by the placement of his legs.
In
addition, he was being supported by his left hand by holding onto
the chain or structure, and all stationary obstructions were to
his rear, the opposite direction in which he was facing.
Further, the pump was approximately 5 feet below the surface,
according to the uncondraticted testimony of Hanna, and Kimmel
was only approximately 2 feet above the surface of the water.
Also, although Kem.~el was fully clothed and had on shoes with
steel toes, he knew how to swim, and was working approximately
4 feet away, and in the view of Hanna throughout the time he was
working. Hanna, although also wearing shoes with steel toes, was
able to swim, and had at his feet a 1 inch aluminum pipe, approxi1nately 8 to 10 feet long, which collld have been used to save
Kimmel had he fallen in.
Also, a rope and an inflated rubber
tube was approximately 20 to 25 feet away, and down a ladder.
For all these reasons I conclude that it has not been established
that there was a reasonable likelihood of the occurrence of an
injury of a reasonably serious nature.
Hence, I conclude that it
has not been established that the violation herein was signif icant and substantial (See, Mathies Coal Company, supra).
CC.F.
Austin Power, Inc., supra.)
III.
Both Hanna and Kirrunel knew that Kimmel wa.s working straddling two structures, and leaning over the bin containing water.
Kimmel's testimony was to the effect that approximately once a
year or less he has had to perform similar work pulling up a pump.

2065

As outlined above, I., infra, a reasonably prudent person would
have realized that there was some danger to Kimmel of falling
into the water. Safety belts were avaiiable at the office of
Kimmel's supervisor, Kirk McKnight, but neither a belt nor a life
jacket was provided to Kimmel.
Accordingly, I find that the
violation herein resulted from Respondent's aggravated conduct
and as such constitutes unwarrantable failure.
(See, Emery
Mining Corp., 9 FMSHRC 1997 (1987))~/

IV
I find that the gravity of the violation herein to be less
then moderate, taking into account the factors discuss in II,
infra. Inasmuch as Respondent failed to act as a reasonable
prudent person as set forth in I., infra, I conclude that
Respondent's negligence herein was of a moderately high degree.
Considering these factors, as well as the remaining factors set
forth in section llO(i) of the Act, I find that a penalty herein
of $75 is appropriate for the violation of section 77.1710Ch),
supra.
ORDER
It is ORDERED that Order 2888637 be amended to reflect the
fact that the violation herein is not significant and substantial.
It is further ORDERED that Respondent shall, within 30 days of
this Decision, pay $75 as a civil penalty for the violation found
herein.

i!weis~

Administrative Law Judge

2/

I find that the cases relied on by Respondent at Pages 14-15

~f its Brief are not dispositive of the issues presented herein.

In Secretary v. Florence Mining Co., 11 FMSHRC 747 (1989), the
Commission held that the Operator's conduct did not constitute an
unwarrantaole failure as it was based on its good faith
interpretation of the requirements of an approved emergency
escape facilities plan. In Secretary v. Rochester and Pittsburgh
Coal Co., 9 FMSHRC 2069 (1987), Judge Koutras held that the
Operator's negligence was to be mitigated as it was based upon an
interpretation of provision~ of a ventilation plan. Reasonable
persons can differ with regard to the interpretation of various
terms of ventilation plans. In contrast, in the case at bar,
Respondent's conduct was as a consequence of failing to act as a
reasonably prudent person.
(Infra, I).

2066

Distribution:
Joseph A. Yuhas, Esq., Tunnelton Mining Company, P. O. Box 367,
Ebensburg, PA 15931 (Certified Mail)
Thomas A. Brown, Esq., Office of~the Solicitor, U. s. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19140 (Certified Mail)
dcp

2067

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

22041

OCT 2 7 1989
PEABODY COAL COMPANY,
Contestant

CONTEST PROCEEDING

v.

Docket No. WEVA 88-239-R
Order No. 3141311; 4/19/88

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

Robinhood No. 9 Mine
Mine ID 46-02143
DECISION

Appearances:

Thomas L. Clarke, Esq., Peabody Coal Company,
Charleston, West Virginia, for the Contestant;
Ronald E. Gurka, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Respondent.

Before:

Judge Koutras
statement of the Case

This proceeding concerns a Notice of Contest filed by the
contestant against the respondent challenging the validity of a
withdrawal order issued pursuant.to section 104(b) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 814(b) ~ The
contestant also seeks to challenge the underlying section 104(a)
citation. The respondent filed a timely answer to the contest,
and asserted that the order was properly issued and that a
violation of the cited mandatory standard did in fact occur. A
hearing was held in Charleston, West Virginia, and the parties
appeared and participated fully therein. The parties filed
posthearing briefs, and I have considered their respective
arguments in the course of my adjudication of this matter.
Issues
The issues in this case are (1) whether the contestant
violated the provisions of mandatory respirable dust health
standard 30 C.F.R. § 70.101, as stated in the contested section
104(a) citation, and (2) whether the inspector who issued the
section 104(b) order properly determined that the violation had

2068

not been timely abated and that the period of time for abatement
should not be further extended. Additional issues raised by the
parties are identified and disposed of in the course of this
decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301, et seq.
2.

Sections 104(a) and 104(b) of the Act.

3.

Commission Rules, 29 C.F.R.

4.

Mandatory respirable dust standard 30 C.F.R.

§

2700.1, et seq.
§

70.101.

Discussion
During opening statements at the hearing, MSHA's counsel
stated that on March 22, 1988, a section 104(a) citation was
served on the contestant citing it with a violation of mandatory
respirable dust standard 30 C.F.R. § 70.101. The contestant did
not contest the citation, and it paid the civil penalty assessment for the violation. Although counsel recognizes the fact
that the contestant takes the position that the penalty was
inadvertently paid, he nonetheless asserted that pursuant to
section 105(a) of the Act, since the contestant did not contest
the citation or the penalty, the citation has become final and
not subject to further review (Tr. 6, 13).
MSHA's counsel stated that after the issuance of the citation, the contestant was afforded time to abate the condition and
to come into compliance with the .respirable dust requirements.
The abatement time was extended, and the contestant submitted
dust samples which it had collected on or about April 12-14,
1988. Since these samples exceeded the required dust levels
mandated by section 75.101, MSHA Inspector Orville Boggs issued a
section 104(b) Order on April 19, 1988, and this order is the
subject of the instant proceeding. Counsel stated that the
issues presented with respect to the order are (1) whether or not
the initial citation was abated within the time fixed by the
inspector, and if not (2) whether the failure of the inspector to
further extend the abatement time was reasonable or unreasonable
in the circumstances (Tr. 7).
Contestant's counsel agreed that the issue presented in this
case is whether or not the abatement time for compliance should
have been extended further, and whether or not the contested
order was appropriate under the circumstances. Counsel asserted
that the contestant made every reasonable effort to abate the
violation in light of the dust control system in use at the mine,

2069

that MSHA was basically aware of these efforts, and that the time
for abatement should have been extended (Tr. 8).
With regard to the payment of the civil penalty assessment
for the citation which preceded the contested order, contestant's
counsel asserted that payment was made through an inadvertent
mistake after MSHA informed the contestant that it would
institute a formal collection action for payment of the penalty
(Tr. 9).
During a bench colloquy, contestant's counsel confirmed that
while the contestant may have doubted the cited respirable dust
level of 3.5, that resulted in the issuance of the citation, it
did not contest the citation (Tr. 10). Counsel agreed that the
order was issued after the contestant submitted additional
samples which reflected sample results of 2.6 when tested by
MSHA. Counsel asserted that the contestant disagrees with MSHA's
test results, and that its own independent weighing of the
sampling cassettes at its laboratory reflects compliance with the
required MSHA dust standards. Further, counsel asserted that the
contestant was making every effort to obtain compliance, and was
attempting to isolate any dust problem which resulted in the high
sampling results being received by MSHA, but had been unable to
do so at the time the order was issued. Counsel asserted that
"the inspector knew about this and perhaps even sympathized with
our problems" (Tr. 12) . Counsel identified the "mechanized
·
mining unit" which was out of compliance as a continuous-mining
machine equipped with a scrubbing device which is used for dust
control purposes (Tr. 13).
The initial section 104(a) "S&S" Citation No. 9959601, was
served on the contestant by certified mail on March 22, 1988, and
it cites a violation of mandatory respirable dust health standard
30 C.F.R. § 70.101, for the following condition or practice:
Based on the results of five valid dust samples
collected by the operator, the average concentration of
respirable dust in the working environment of the
designated o~cupation in mechanized mining unit 017-0
was 3.5 ~g/m which exceeded the applicable limit of
1.5 mg/m . Management shall take corrective actions to
lower the respirable dust and then sample each production shift until five valid samples are taken and
submitted to the Pittsburgh Dust Processing Laboratory.
The citation was signed by MSHA Inspector Billy G. Wiley,
and he established April 13, 1988, as the abatement time for the
violation.
Inspector Wiley modified the citation on April 11,
1988, "to allow the operator to send respirable dust samples to
the Mt. Hope Respirable Dust Processing Laboratory." The citation was modified again on April 13, 1988, by MSHA Inspector
Orville E. Boggs, and the abatement time was extended to

April 18, 1988, "to allow the operator more time to collect the
needed respirable dust samples on the MMU 017."
On April 19, 1988, Inspector Boggs issued a section 104(b)
Order No. 3141311, withdrawing the 3 North 017-0 section from
production, and his reasons for this action are stated as follows
in the order:
Based on the results of five (5) respirable dust
samples collected and submitted by the operator on
April 13, 14, and 15, 1988, on the designated occupation 036 in MMU 017-0, the average conce~tration of
respirable dust was 2.6 milligrams (mg/m ~ which
exceeded the applicable limit of 1.5 mg/m .
The operator has failed to adequately control the
respirable dust in the working environment of designated occupation 036 continuous miner operators in the
3 North 017-0 section.
On 2:30 p.m., on April 19, 1988, Inspector Boggs modified
the order, and the modification states as follows:
The operator has submitted and implemented a
revised respirable dust-control plan. Therefore, this
order is modified to permit the operator to collect
respirable dust samples on MMU 017-0 to determine if
compliance is attained.
The order was terminated by Mr. Boggs on April 21, 1988, and
the reason for this is stated as follows on the face of the
notification notice:
Based on the results of six (6) valid samples
collected during an MSHA inspection, the respirable
dust concentrations on the designated occupation
(continuous miner oper~tor -036) in mechanized mining
unit 017-0 is o.7 mg/m which is within applicable
limit of 1.5 mg/m 3 . The section average was 0.4 mg/m 3 .
MSHA's Testimony and Evidence
Donald L. Jennings, MSHA Physical Science Technician,
Mt. Hope, West Virginia, testified as to her experience and
training, and she stated that her duties include the testing and
weighing of respirable dust samples submitted by mine operators
and MSHA inspectors for analysis to insure compliance with MSHA's
Part 70 respirable dust standards. In addition to the testing of
these samples, she is also involved in the calibration and maintenance of the laboratory test equipment. She stated that she is
familiar with the dust samples submitted by the contestant on
April 12 and 14, 1988, and she confirmed that she weighed and

2071

tested the samples, and she explained the laboratory procedures
which she followed, including the use of an air sampling pump,
and a balance device. She demonstrated the testing procedures
she followed by references to two dust sampling cassettes, and
she explained the calibration procedures she followed, and the
recording of her test results on certain records which she maintained in the course of her duties.
(Exhibits G-1, G-2, G-3
Joint Exhibits 1 and 2).
Mrs. Jennings confirmed that all dust samples received at
the laboratory are weighed on the same day they are received, and
she explained how she determines and documents the initial weight
of the dust sample cassette, the final weight as determined by
her laboratory procedures, and the method by which she determines
the concentrations of respirable dust as converted to an equivalent MRE concentration as measured with the approved MSHA
sampling devices and instruments.
Mrs. Jennings stated that some of the dust cassettes
received in the laboratory are scratched and scuffed up, contain
holes, and sometimes are broken. She confirmed that appropriate
steps are taken to insure against contaminated cassettes (Tr.
15-35).
On cross-examination, Mrs. Jennings stated that she sometimes receives over-sized particles in the samples she receives,
and she indicated the cyclonic action of the air pumping device
used to test the samples is designed to take up these particles.
Although such oversized samples are not considered to be respirable dust, they will be weighed if they are inside the cassette.
She also explained the use of a balance and desiccator which is
located on a heavy "brinkman table" located in the laboratory,
and she did not believe that she .made any mistakes in the procedures she follows in weighing and testing the samples and in
calculating the results of her weighing and sampling (Tr. 35-45).
Ambrose Kokoski, MSHA mining engineering technician,
Mt. Hope, West Virginia, testified as to his background and
experience, and he confirmed that he was familiar with the respirable dust samples processed by Mrs. Jennings. He stated that he
trained Mrs. Jennings when she was first employed in the Mt. Hope
office, and he agreed that the laboratory procedures she followed
in weighing and testing the samples in question were correct, and
that she routinely follows these procedures for every sample
which she processes.
Mr. Kokoski stated he "checked weighed" two of the samples
processed by Mrs. Jennings as shown in exhibit G-2, to verify the
accuracy of her weighing procedures and documentation, and that
he initialed the record verifying the accuracy of her weighing of
the samples, and placed a check mark next to the samples which he
verified. He stated that he used a different sampling balance

2072

machine in checking her sample weighing results, and that he also
initialed the back of the cassette sampling card verifying the
results of his weighing of the samples, as shown in exhibit G-1
(Tr. 45-51).
Robert A. Thaxton, supervisory industrial hygienist, MSHA,
Mt. Hope, West Virginia, testified as to his background, experience, and education, and stated that he holds a BS degree in
Chemistry, with a minor in math, and a Master's degree in
Occupational Health and Safety Engineering. He confirmed that
the laboratory technicians at Mt. Hope, including Ms. Jennings
and Mr. Kokoski, .work directly under his supervision.
Mr. Thaxton stated that he was familiar with the dust conditions at the mine in question through his review of respirable
dust samples and compliance problems that come to his attention
with respect to the mine. He identified exhibit G-4 as a copy of
pages from a log book maintained at the lab showing the results
of respirable dust sampling for various mining units at the mine,
and he confirmed that on the basis of the collected samples for
the cited MMU 017 section, the respirable dust standard for this
unit was computed at 1.5 milligrams of respirable dust per cubic
meter of air, as of August, 1987 (Tr. 51-61).
Mr. Thaxton also identified certain MSHA records concerning
respirable dust citations issued at the mine, and he confirmed
that he reviewed the FY 1987 compliance records in 1988 to identify the mines which are to be placed under MSHA's "increased
awareness" because of a repeat respirable dust non-compliance
history. He confirmed that a mine which has two citations in any
one year on any one mining entity is targeted by MSHA for
increased attention under its "target mine program" for repeat
non-compliance (Tr. 64).
Mr. Thaxton stated that dust samples submitted by mine
operators are usually weighed at MSHA's laboratory in Pittsburgh,
and that targeted mine samples may also be sent to the Mt. Hope
laboratory because that lab has a quicker "turnaround" time for
weighing and processing samples (Tr. 66). Mr. Thaxton explained
MSHA's target mine program, and he confirmed that he developed
the program for MSHA District No. 4. He also confirmed that the
contestant's mine was under this program in 1988 and 1989, and
that some of its employees who were in attendance at the hearing
attended some of the MSHA meeting under this program (Tr. 67-69).
Mr. Thaxton confirmed that the compliance information he
reviewed indicates that in FY 1987, the mine received two citations for violations of section 70.101, on the 015 MMU unit. He
explained that an MMU, or mechanized mining unit, consists of a
continuous-mining machine, shuttle cars, and a roof bolter, and
that the dust samples taken and submitted by the contestant are
taken only of the designated occupation, which in this case is

2073

the continuous-miner operator. The roof bolter and scoop operator are not sampled because the designated occupation (miner
operator) is representative of the "worse case situation" on the
entire MMU because the miner operator would be in the highest
concentration of dust generated on the unit. Mr. Thaxton concluded that based on the two citations in question, the mine, in
1987, had a problem with respirable dust, and that the two citations represent the amount of high dust levels to which the men
on the MMU unit in question were exposed for a 4-month period out
of the total 12 months in the year (Tr. 73-74).
Mr. Thaxton identified exhibit G-5, as a compilation of the
respirable dust sampling reports concerning the 017 MMU unit at
the mine, and he explained that five valid dust samples are
required to be collected bi-monthly for the designated occupation, and that an average of five samples taken together will
establish an average concentration of dust which is then compared
against the actual standard established for the particular MMU in
question. He explained the laboratory procedures, including the
handling of oversized particles, and he identified the dust
sample results used to support the citation issued on March 22,
1988 (Tr. 78). He also identified the samples taken on April 7
and 19, 1988, which indicate average concentrations of respirable
dust of 2.5 and 2.6 respectively, both of which still exceeded
the 1.5 standard established for the cited MMU in question (Tr.
80) •
When asked to comment about the significance of the aforementioned sample results on the 017 MMU, and the contestant's
compliance efforts, Mr. Thaxton stated as follows (Tr. 81-82):
A. The samples of all three groups of samples submitted by the operator all exceeded the standard. Some
of the samples did have some variation to them, some
being low, some being higher than others. This indicated to us, looking at the reports of the three sets
of samples collected by the operator that sufficient
action had not been taken to reduce the dust below the
standard and the last two surveys were about the same
thing, and therefore we had a time period there that I
am not sure what would have been done to reduce the
dust. Whatever action was taken was significant enough
to reduce the dust levels.

*

*

*

*

*

*

*

A.
By them all being above the standards then that
indicates to me that the planned parameters for the
dust controls that are actually in place on this MMU
are probably inadequate or are not being followed on a
routine basis. If we had samples that fluctuated
dramatically up and down, some being extremely low and

2074

some being extremely high, then that resulted in an
average concentration that exceeded the standard, then
we might say that there are some isolated problems in
the way that the mine is being operated, the miner is
being operated. It may contribute to the dust problem,
but with consistent results showing over ten samples,
which was ten shifts or ten different days, that the
dust concentrations were very uniform, that they were
never below the 1.5 standard.
Mr. Thaxton confirmed that he has never been in the
Robinhood No. 9 Mine. He stated that the measures taken on an
MMU continuous miner to control dust would include ventilation
controls around the miner, use of water sprays or wetting agents,
and the use of a scrubbing unit. He stated that a complete
change over to a scrubbing system on a machine may take 3 weeks,
and that simply altering the water sprays may take as little as
one or 2 days.
If an operator is under MSHA's target program
with respect to a non-compliance problem, MSHA would expect it to
take stronger action once it is out of compliance and to insure
the use of necessary dust controls (Tr. 84).
On cross-examination, Mr. Thaxton confirmed that the MMU
unit which was cited in both the disputed citation and order is
the 017 unit, and the applicable respirable dust standard
established by the appropriate sampling cycles for this unit is
1.5 (Tr. 84). Mr. Thaxton confirmed that the 017 MMU was cited
one time in FY 1989 for a violation of section 70.101, and that
the citation was terminated when the unit was abandoned and
removed from the mine on March 1, 1989. He also confirmed that
the unit was cited two times in 1988 for violations of section
70.101 (Tr. 85), and that for the past three fiscal years, the
unit has been cited a total of three times for violations of
70.101 (Tr. 90).
Mr. Thaxton confirmed that he had no personal knowledge of
the actions taken by the contestant in this case after receiving
the citation, and that the basis for any conclusion on his part
that the mine might have a particular dust problem is based on
the "historical data" from the mine which indicates "that they
possibly have problems with this particular MMU because of the
repeat non-compliance." In support of his conclusions that there
is a "problem," Mr. Thaxton stated that "two violations in any
one fiscal year in any one entity indicates a potential for
problems on that particular entity" (Tr. 91). He conceded that
he does not know what may be the "cause" of any "problem," and he
conceded that in order to abate a dust violation, the operator
must have some knowledge as to what caused it, and that in order
to effectively abate a violation, the operator must have enough
time to discover what is causing it (Tr. 91).

2075

Mr. Thaxton stated that when an inspector modifies a citation to permit an operator to take additional samples, he does so
because an operator usually indicates that he has adopted some
additional dust controls and needs time to obtain and submit
additional samples to the laboratory for analyses (Tr. 93).
Mr. Thaxton stated that it is normal procedure for an inspector
to issue a withdrawal order if he determines that there has been
an insufficient effort made to control the dust. In the instant
case, he pointed out that the contestant took two sets of samples
after being initially cited, and that after the second extension
of the citation, which still reflected non-compliance based on
the additional $ampling, Inspector Boggs determined that the
contestant had made an insufficient effort to control the dust
(Tr.94).
Mr. Thaxton confirmed that he did not discuss the violation
with Inspector Boggs, and that he (Thaxton) received no information with respect to any particular dust problem which may have
caused the contestant to be out of compliance. He confirmed that
the only information available to him is the methane dust-control
plans that are submitted by the contestant for the MMU in question, including any changes made after a citation is issued, and
any new plans which may be submitted (Tr. 95). Mr. Thaxton
stated that an operator is required to make some changes in its
dust-control plan and sample again, or else they are not given an
extension. He confirmed that he saw no meaningful changes made
by the contestant in this case, and that the MMU went back out of
compliance at the end of the fiscal year, and was abandoned and
is no longer available (Tr. 96).
Mr. Thaxton stated that the "target" mine in question is
assigned to Madison sub-district office supervisor Henry Keith,
and he confirmed that he has memos from Mr. Keith indicating that
"he has made contacts with the operator," but has no information
as what the problem may be (Tr. 98). When asked whether anyone
has ever identified the respirable dust problem in question,
Mr. Thaxton responded as follows (Tr. 98):
THE WITNESS:
In some cases. This miner is a continuous miner with a scrubber on it, deep cut. Those
miners typically have no problem in maintaining dust
compliance.
It usually relates to, in this case, this
miner having reduced standards, I expect that they are
cutting rock. Scrubbers have a harder time being
maintained when you are cutting rock. They tend to
clog up, they lose their efficiency faster. The fact
that they are cutting rock and having the quartz it
also reduces the standard and they have less room to
work with. Those things are what basically if we are
getting citations on that one particular entity.

2076

Mr. Thaxton stated that in the event Inspector Boggs was not
aware of any action taken by the contestant to abate the violation, and that if all that was done by the contestant was to take
additional samples, the inspector would be justified in issuing a
section 104(b) withdrawal order. Mr. Thaxton stated further that
MSHA's policy is that if an inspector determines that an operator
has made no effort to control dust, and simply submits additional
samples, and the samples show continued noncompliance, the
inspector is instructed not to extend the abatement time further
and to issue a section 104(b) order (Tr. 99).
Gary Turley; MSHA physical science technician, Madison,
West Virginia, testified as to his experience and training, and
he confirmed that he holds certifications in dust sampling,
maintenance, calibration, and noise sampling, and that his duties
include the weighing and testing of respirable dust samples
submitted to his office laboratory. He confirmed that he is
familiar with MSHA's Mt. Hope laboratory and that the Madison
facility is essentially the same. He also confirmed that the
dust sampling testing procedures which he follows are the same as
those performed by Mrs. Jennings at the Mt. Hope Office, that the
same type of balance machines are used, and that his testing
procedures are routinely made for all of the samples which he
tests, processes, and documents.
Mr. Turley stated that he was familiar with the dust samples
processed in this case, and he confirmed that the samples taken
by Inspector Boggs to abate the contested order were submitted to
him for testing and analysis, and that they show compliance with
the respirable dust requirements of section 70.101, for the
continuous miner occupation on the 017 mechanized mining unit
(exhibits G-6, G-7; Tr. 100-103).
Mr. Turley explained that the prior samples were taken to
the Mt. Hope laboratory because they were samples submitted by
the operator, and that Mr. Boggs' samples were submitted to the
Madison laboratory because they were samples taken by Mr. Boggs
(Tr. 103) .
On cross-examination, Mr. Turley stated that MSHA purchases
its dust sampling cassette devices from the MSA Manufacturing
Company, and that the cassettes used by Inspector Boggs were
obtained from MSHA's Madison Office (Tr. 106).
The parties agreed to the taking of the posthearing deposition of MSHA Inspector Orville E. Boggs, who was unavailable at
the hearing.
Inspector Boggs testified as to his experience and training,
and he confirmed that he was familiar with the subject mine, has
inspected it several times since 1980, and that he was assigned
to conduct an inspection at the mine during the spring of 1988.

2077

He stated that the March 22, 1988, respirable dust citation was
issued on the basis of computerized information reflecting noncompliance with the respirable dust standard. Mr. Boggs stated
that Inspector Wiley informed him of the citation, and that he
and Mr. Wiley issued two extensions of the abatement times to
allow for more samples to be sent to MSHA's labs (Tr. 3-8).
Mr. Boggs could not specifically recall the reason for his
extending the abatement time with respect to the citation, and he
speculated that the contestant may have had an equipment breakdown on the section, and if this occurs, the production cycle is
stopped, and mining moves to another spare production section.
He confirmed that he would not have extended the abatement time
if the contestant were not attempting to abate the violation in
good faith (Tr. 9).
With regard to the issuance of the contested section 104(b)
order, Mr. Boggs stated that he based the order on the fact that
the dust samples submitted by the contestant for April 13, 14,
and 15, 1988, reflected that the cited section was out of compliance. He stated that he "had no choice but to issue the
order" for the failure by the contestant to abate the violation,
and he explained as follows (Tr. 10-11):

Q.

Why do you say you had no choice?

A. Well, we gave a reasonable time. We gave them a
full second cycle. See, they got in trouble in March
on their cycle. On their normal cycles, they sampled
and they were out of compliance. Something's wrong.
So we gave them -- they got the (a) citation, giving
them a reasonable time to sample again and get into
compliance.

Q.

Why do you think that that was a reasonable time?

A. What did they need? They needed five samples, five
valid samples. They had a reasonable time to get it if
they would run five sections.
If they run five production shifts, they would take those five continuous.
Mr. Boggs could not recall whether or not the contestant
ever discussed any equipment problems with him, or informed him
that additional time was required to abate the condition. He
recalled that the contestant discussed the matter with his supervisor Henry Keith, but he could not recall being present during
this discussion. Mr. Boggs confirmed that he was at the mine
between the time the citation and the order were issued, but he
was not sure whether he was on the cited section, could not
recall discussing the problem with the contestant during this
time, and could not recall the contestant ever seeking his advice
on the dust problem (Tr. 13).

2078

Mr. Boggs confirmed that he discussed the matter with
Mr. Keith, but could not recall Mr. Keith mentioning anything to
him about any of his discussions with the contestant. Mr. Boggs
stated that he did not inform Mr. Keith that he was going to
issue the order, but did discuss it with him after he had issued
it (Tr. 14). Mr. Boggs believed that he gave the contestant a
reasonable time to take additional samples and obtain the
results, and in response to a hypothetical question stated as
follows (Tr. 15-16):
Q.
Let me ask you a hypothetical question here.
Suppose the company said, "Well, look, something has
come up or we are having problems with the machinery.
We need an extra week. We want to change the
machinery.
It takes about a week, and then we want to
take our samples after that." Would your normal practice have been to give them that additional time, or
would you just have given them the time to take the
samples?

A.
If they could justify it, they would have got an
extension. Equipment break down, strikes, whatever, if
it's beyond the company's control, it's something that
they don't do intentionally, then that justifies more
time, an extension.

Q. You had already given them more time before the
B-Order was issued?
A. Yes, I had. It could have been extended again if
they had justified it.
Q. You cannot recall their justifying it or saying
anything?
A.

No.

Mr. Boggs confirmed that after a tespirable dust inspection
on April 20, 1988, and the results of a laboratory report of
April 21, 1988, the cited section came into compliance with an
average dust concentration of .4 for the section (Tr. 18). He
identified a copy of a report of a respirable dust conference
held with his supervisor and other MSHA officials, and he confirmed that MSHA must approve dust-control plan changes submitted
by the operator to control respirable dust on the section. In
this case, he confirmed that the PSI for each water spray was
changed from 50 PSI to 60 PSI, and that someone was assigned to
monitor the dust samples (Tr. 19-20).
Mr. Boggs stated that pursuant to MSHA's criteria with
respect to respirable dust orders, the issuance of a section

2079

104(b) order requires an operator to make dust control changes,
and once an order is issued, the operator's dust-control plan
must be improved. After changes are made, additional dust
samples must be taken, and the operator must show that it is
making changes and improvements to bring it into compliance.
After the changes are made and approved by MSHA, the order is
modified to permit coal production to continue, and dust samples
are taken.
The sampling is conducted by MSHA, and Mr. Boggs
confirmed that he took the samples which resulted in the abatement of the order (Tr. 22). Other than the two changes he testified to, he could not recall any other changes made by the
contestant in t.his case which may have affected the respirable
dust on the section (Tr. 23).
On cross-examination, Mr. Boggs stated that if he were the
contestant and received a section 104(a) citation for noncompliance with the respirable dust standards, he would have
assigned someone to the sampling pumps to make sure that they
were properly taken care of. He would also pay close attention
to the ventilation on the section, and the mining machine water
pressure and spray operation, and would check the water pressure
and monitor the ventilation air and make adjustments as necessary
(Tr. 2 4 -2 6) .
Mr. Boggs did not believe that the contestant assigned
anyone other than the section boss to do the things he would have
done. He confirmed that the checking of the dust pumps would not
affect the amount of respirable dust in the air, and would only
affect the measurement read-out of the instrument. Although
MSHA's dust standards allow two milligrams of dust in· the air, in
this case where quartz is present, the allowable dust limit is
1.5 milligrams (Tr. 29).
Mr. Boggs stated that there were three working sections in
the mine, and although a working section is one of the places
that he would be concerned about as an inspector, he doubted that
he was on the 017 Three North Section from March 7, through
April 29, 1988 (Tr. 23). He could not recall discussing any dust
control problems on the section with the contestant, and he did
not believe that anyone asked him for any assistance because the
contestant has an experienced safety department and does not
necessarily ask for a lot of advice (Tr. 35).
Mr. Boggs could not recall making any comments about the
reliability of the dust sampling results from MSHA's Pittsburgh
laboratory, but he did recall hearing comments from contestant's
employees Dennis Jarrell and Denver Carter, who complained that
"they didn't think that they were being done right by Pittsburgh"
(Tr. 36). Mr. Boggs recalled that these individuals were complaining because the MSHA individual doing the weighing of the
samples was new "or something to that effect." Mr. Boggs could

2080

not recall the specific complaint, but confirmed that the contestant requested that someone weigh the samples, and that is why
his office sent them to the Mt. Hope laboratory (Tr. 37).
Mr. Boggs stated that prior to the issuance of the order, he
could not recall discussing with Mr. Carter or Mr. Jarrell, or
anyone else at the mine, any efforts by the contestant to come
into compliance. He confirmed that he issues four or five
section 104(b) orders annually, and only if they are justified.
He stated that before issuing such an order, he considers whether
the operator made a diligent effort to abate the violation in a
reasonable time, taking into account the availability of manpower
(Tr. 38) •
Mr. Boggs confirmed that the modification of the order
allowed mining to continue, and he believed that in order to lift
a section 104(b) order, or to modify it to allow mining to continue, the Act requires the mine operator to submit a modification to its dust-control plan (Tr. 40). When asked whether or
not it is standard MSHA procedure for an inspector to issue a
section 104(b) order if an operator fails to come into compliance
after he submits dust samples taken subsequent to the issuance of
the initial section 104(a) citation, Mr. Boggs responded as
follows (Tr. 42-43):
A.
I'm not sure where it's written.
It's standard
operating procedure, though, for us.
It's just like
any other violation. If you write a violation, give a
company a reasonable time to abate the violation. Then
if he does not take a reasonable effort to abate· that
violation in the reasonable time given, that is known
as failure to abate, which results in a B-Order, which
ceases operations until the violation is corrected. It
applies to any violation we write.

Q. Is that standard operating procedure the reason why
you said, and I think these were your words, "I have no
choice?"
A. No, I was going by the law.
If I had the Act and
my Notice and Order Abiding Manual and my CFR 30 with
me, I could read it out as Congress wrote it.
But I
don't have it with me. That's what Congress stated
when they wrote the Act in 1977, revised it.
Mr. Boggs confirmed that after the citation was issued, he
did not return to the cited section because he was apparently
working in another section of the mine. He could not recall
anyone asking him to return to the cited section to determine if
there were any problems, and if he had been asked, he would have
done so. If he had observed anything that would have helped
abate the violation, he would have probably offered his advice,

2081

even though "they don't always take our advice" (Tr. 44).
Mr.· Boggs stated that as long as an operator is making a reasonable effort. to abate a cited condition, he would grant an extension of the abatement time, even though the condition may not be
completely abated. In the case at hand, he knew of no efforts
made by the contestant to change the conditions that would have
resulted in the abatement of the citation (Tr. 45).
Contestant's Testimony and Evidence
Steohen W. Richards, Safety Supervisor, testified as to his
background and experience. He confirmed that the principal point
of production of dust is at the face where coal is being
extracted. He stated that the mining machine used on the 017
unit was a Joy 12-CM-7 equipped with a flooded bed scrubber, and
he explained the probable dust sources and methods of controlling
it with the scrubber which he characterized as "the state of the
art dust collecting system" (Tr. 108-119).
Mr. Richards stated that respirable dust non-compliance
associated with the machine scrubber system is a cause for concern and is not taken lightly. In such instances, the scrubber
is checked in its entirety, and the ventilation system and
individual administrative controls are examined in order to
identify and correct the problem (Tr. 120).
Mr. Richards stated that with the use of the scrubber
system, and based on samples taken by the contestant and MSHA, it
is not uncommon to have dust samples ranging from .5 to 1.5 milligrams. Without the scrubber system, past samples have shown
over 3.0 milligrams of dust (Tr. 121).
Mr. Richards "suspected" that the non-compliance problem may
have been caused by the use of old dust cassettes which were
stored for approximately a year at the Robinson No. 8 Mine which
had worked out and was shut down. He speculated that the age of
the cassettes may have affected the accuracy of the weight of the
dust samples used to determine compliance (Tr. 123).
Mr. Richards explained the changes made to come into compliance, including the increase of the water supply line to the
mining machine, and increasing the water pressure from 50 to
60 PSI, examining the different components of the scrubber
system, and reviewing the dust-control plan with appropriate mine
personnel to insure that they were aware of their dust monitoring
responsibilities (Tr. 124).
Mr. Richards confirmed that after the abatement of the
order, the mining machine was again out of compliance, and it was
replaced with a .rebuilt one. He also confirmed that the
scrubbers were installed on the machines when they were out of
compliance (Tr. 125). He stated that personal respirable dust

2082

protective respirator devices are available to miner's working on
the MMU, but they are not required to wear them (Tr. 128).
On cross-examination, Mr. Richards stated that the old dust
cassettes were approximately a year old, but he had no personal
knowledge as to whether or not the cassettes used for the dust
samples taken by the contestant on March 22 and April 7, were the
old ones or new ones.
It was his understanding that the old
cassettes were used to sample the dust, but he was not the
individual who picked out the cassettes or assembled the cassette
samplers used to sample the dust (Tr. 130). Mr. Richards
explained what was done after the order was issued, including the
change of water pressure in the machine, and changing the dustcontrol plan to reflect the changes in the water pressure being
used to control the dust. He confirmed that no changes were made
to the machinery because the water pressure already exceeded the
minimum dust plan requirements and no machine changes were
required (Tr. 132).
Mr. Richards could offer no explanation as to the precise
problems which resulted in non-compliance, and he confirmed that
after the order was issued, the mining machine was replaced, and
to his knowledge, abatement was achieved, and no further problems
were encountered (Tr. 135).
Mr. Richards explained that as part of the efforts to determine whether the old cassette sampling devices were the cause of
the high dust sample readings, the contestant started weighing
the cassettes in its coal laboratory but they were criticized by
MSHA for doing this. He stated that the cassettes were being
pre-weighed and post-weighed on scales which were representative
of the scales used by MSHA, and a qualified person was performing
the weighing. However, MSHA refused the contestant's requests to
verify the questionable dust samples which were being tested and
processed during the month or so that the contestant was
attempting to come in compliance and abate the citation (Tr.
137) .
Mr. Richards stated that he and two other individuals who
worked with him had one or two conferences at MSHA's sub-district
office, and on one occasion visited Mr. Thaxton at MSHA's laboratory building in an effort to look at the lab and to weigh the
contestant's samples, but received no help or assistance from
MSHA (Tr. 138).
Mr. Richards was of the opinion that Inspector Boggs issued
the order as a "procedural and prudent thing to do," and did not
consider the contestant's abatement efforts, or the amount of
resources being used to abate the citation (Tr. 139).

2083

Mr. Richards stated that after exhausting all efforts to
dismantle the mining machine, insuring that it met the manufacturer's .specifications, reviewing the dust-control plan with
appropriate personnel, and assigning a crew to periodically
monitor the situation, the contestant sought assistance from
Mr. Thaxton to help them in looking at the samples and correcting
the problem (Tr. 140).
Dennis Jarrell, mine safety supervisor, stated that he
reports to Mr. Richards. He stated that after sampling the 017
unit during the bi-monthly period of March and April, 1988,
Inspector Henry Keith called him on March 22, and advised him
that the unit was out of compliance and that he was to resample
the unit. Upon receipt of the call, Mr. Jarrell met with the
mine manager, and special attention was given to the machine
scrubber system.
In addition, management decided to pre-weigh
and post-weigh the sampling devices, and meetings were held with
the section foreman and miners working on the unit in an effort
to determine the reasons for being out of compliance (Tr.
146-151) •
Mr. Jarrell stated that before taking the second set of
samples from March 28 through 31, the 017 MMU was checked out,
and no visual or mechanical problems were found.
He explained
what was done in an attempt to find the problem, including the
weighing of the sample cassettes in order to obtain a representative sample (Tr. 157).
Mr. Jarrell stated that based on the pre-weighing and postweighing of the second March-April samples submitted to MSHA to
abate the citation, it was determined that the average set of
samples indicated .6 milligrams of dust (Tr. 157). Contestant's
counsel confirmed that these same samples were submitted to MSHA,
and MSHA's test results indicated an average concentration of
2.5 milligrams of dust (exhibit G-5, Tr. 158). Mr. Jarrell
explained the method used to weigh the sampling devices in question in an effort to find out the overall weight gain (Tr.
158-161).
Mr. Jarrell stated that after calculating the weight gain
for the second set of samples in question, the contestant calculated an average respirable dust concentration of 1.5 milligrams.
He stated that "I'm thinking at that point in time had our
records been valid we would have been in compliance, we don't
know" (Tr. 164) .
Mr. Jarrell stated that Mr. Keith called him again on
April 7, and advised him that the second set of samples still
indicated non-compliance.
Further management meetings were held,
and on April 8, Mr. Jarrell and Mr. Richards went to Mt. Hope to
meet with Mr. Thaxton. Mr. Jarrell took 12 dust sample cassettes
with him, and five additional cassettes were weighed at the

2084

contestant's lab and at MSHA's Mt. Hope lab. All of these
samples were of the same weight. Once they were pre-weighed,
Mr. Jarrell requested MSHA to post-weigh them, but MSHA would not
do it. After the five samples were taken on April 12 through 14,
using the five pre-weighed cassettes, MSHA did not post-weigh
them as Mr. Jarrell thought they would, and on April 18,
Mr. Keith called him again and advised him that the unit was
still out of compliance (Tr. 168).
Mr. Jarrell stated that on April 19, he went to MSHA's
office and agreed under protest to revise the dust-control plan,
to increase the water pressure from 50 PSI to 60 PSI, to assign
someone to monitor the samples spontaneously on the continuous
miner, and to weigh all samples (Tr. 168).
Mr. Jarrell stated that Inspector Boggs came to the mine on
April 20 and sampled the unit, and that his sampler weighing
method was the same one used by the contestant, with similar
results (Tr. 169). Mr. Jarrell confirmed that the old sampler
cassettes were discarded, and that the contestant still does not
know what caused the high dust readings (Tr. 170). Mr. Jarrell
stated that he discussed the problem with Inspector Boggs, and
that he (Boggs) could not see any problem and speculated that the
samples may have been "miss-weighed in Pittsburgh" (Tr. 174).
Mr. Jarrell stated that if the order had not been issued,
and the abatement time extended, the old sample cassettes would
have been discarded and different cassettes would have been used
(Tr. 179). He confirmed that he first suspected that there may
have been a problem with the cassettes in mid-March, ·1988, after
the citation was issued, and after the first sampling cycle
results were received. Mr. Jarrell also "suspected" that MSHA's
Pittsburgh laboratory may have had some erratic weighing results,
but he was not certain that this was the case (Tr. 180-181).
Mr. Jarrell stated that Mr. Boggs issued the order upon
instructions from his supervisor Henry Keith, and that he was
present when Mr. Keith instructed Mr. Boggs to issue the order
and to abate it because the contestant was going to upgrade the
dust-control plan to increase the water pressure from 50 PSI to
60 PSI. Mr. Jarrell stated that Mr. Keith did not suspect there
was a water spray problem, but focused on that part of the dust
plan "because it was the simplest thing to do" (Tr. 185).
Mr. Jarrell stated that Inspector Boggs and Mr. Keith said
nothing to him to indicate that they were not satisfied with his
efforts to abate the citation (Tr. 185). Mr. Jarrell believed
there was a problem with the sampling, and he also believed that
Mr. Keith also believed it (Tr. 186).
Rodney Barker, day shift maintenance foreman, testified that
he has 17 to 18 years of experience, and has worked at the mine

2085

for 9 years. He stated that the 017 mechanized mining unit
operated on the afternoon and evening production shifts, and that
it was idle during the day shift. Mr. Barker confirmed that he
was responsible for the maintenance of the unit, which consisted
of a continuous-mining machine, roof bolter, and scoop or shuttle
car. He stated that prior to the respirable dust sampling cycle,
and for the first 5 days of sampling, the continuous-mining
machine was cleaned and maintained on a daily basis. Maintenance
work was performed on the miner dust scrubber unit, and the
machine water sprays were cleaned and serviced on a daily basis.
Mr. Barker stated that he did not speak with any of the MSHA
inspectors who issued the citation and order in this case (Tr.
198-204).
Timothy Bailey, laboratory technician confirmed that he preweighed and post-weighed some of the dust sampling cassettes used
by the contestant to sample dust from April 12 to 14, 1988.
These were the samples which were pre-weighed at the MSHA lab,
but not post-weighed by MSHA, and they were the samples which
resulted _in the issuance of the order (Tr. 205-208).
On cross-examination, Mr. Bailey confirmed that the sample
cassettes were weighed with the red plugs removed, and the
cassettes were not passed through a desiccator. Mr. Bailey
identified the balance which he used to weigh the cassettes in
question, and he confirmed that it is accurate to four decimal
points, and reads out in milligrams (Tr. 210-211).
Robert Thaxton was recalled by MSHA, and he stated that the
balance described by Mr. Bailey was similar in design- to the MSHA
balance used at the Mt. Hope laboratory. MSHA's balance is a
different model which weighs to the nearest thousands of a milligram, while the contestant's balance weighs to the nearest tenth
of a milligram (Tr. 213). Mr. Thaxton observed that the balance
used by Mr. Thaxton did not have a calibration sticker reflecting
when it was last calibrated, and it appeared to have been used
for other dust sampling, which creates dust and dirt which might
produce erroneous dust samples. He also observed Mr. Bailey
carrying the balance into the courtroom under his arm, and he
stated that the balances used by MSHA are never transported in
this manner because it may destroy the internal weights and
calibration of the unit. Although the removal of the plug prior
to weighing the cassette is not prohibited, its possible that
Mr. Bailey may have inadvertently contaminated the dust inside
the cassette (Tr. 215) .
Mr. Thaxton stated that at the time Mr. Jarrell and
Mr. Richards brought their samples to the MSHA lab to pre-weigh
the cassettes, he advised them that this was an inadequate method
of determining whether respirable dust was on the cassette.
Mr. Thaxton confirmed that when Mr. Jarrell and Mr. Richards
mentioned the fact that the old cassettes may have had erroneous

2086

initial weights, the seven cassettes which they brought to the
lab were opened up and the filters were weighed to determine
whether the initial weights were correct. The results showed
little to no difference in the initial weights, and Mr. Thaxton
stated that the cassettes "were o.k." (Tr. 216).
Mr. Thaxton explained further that the Mt. Hope lab was not
permitted to certify all of the old cassettes which may have been
used by the contestant. On advice of the Pittsburgh lab, the
Mt. Hope laboratory could not weigh the samples exposed to mine
dust because the balances would have been exposed to dust contamination resulting in erroneous balance readings. Accordingly,
Mr. Jarrell and Mr. Richards were not permitted to weigh the
entire cassettes, but the internal filter packages were weighed
as usual. Mr. Thaxton stated that persons other than authorized
lab personnel were not permitted in the lab while dust samples
were being processed because body temperatures will affect the
balance readings, people moving around will cause air currents,
and unauthorized people in the lab can detract from the lab
technician's concentration (Tr. 217-218).
Mr. Thaxton questioned the method used by the contestant to
establish the gross weight of the filter cassette in its
entirety, and he believed it was an inappropriate method of
trying to determine respirable dust (Tr. 220).
With regard to MSHA's policy concerning the necessary action
required of a mine operator to prevent a mine closure and withdrawal of miner's, Mr. Thaxton stated as follows (Tr. 232-233):
JUDGE KOUTRAS: Do you know whether there is any policy
in the district office with regard to respirable dust
with regard to what an operator has to do as a minimum
before--to prevent the actual shut-down and withdrawal
of miners?
THE WITNESS:
In response to the order the policy is
that they obtain an updated plan which would result in
compliance or the inspector must detail in this modification of the order controls that are changed in order
to obtain compliance.
In our district with the relatively closeness of
each field office and subdistrict offices to the mines,
we- opt to use the plan route as opposed to writing all
that on the modification of the order.
JUDGE KOUTRAS: The inspector is not here to defend
himself.
I will still ask you, does it make sense just
to say, "Well, pick something out in your plan.
I need
something, some modification and that way we won't have
to close you down." Does that make sense?

2087

THE WITNESS: They had already been closed down. The
only thing that was doing was allowing MSHA to modify
the order to take samples. The order was issued and
the se.ction was closed.
With regard to the reasonableness of the actions taken by
the contestant to abate the citation, Mr. Thaxton stated as
follows (Tr. 233-235):
JUDGE KOUTRAS: You understand the issue in this case.
I've got to make a judgment here as to whether the
operator took reasonable action to abate the original
citation. After hearing all of the testimony, do you
have an opinion on that?
THE WITNESS: The only opinion that I can draw from the
information that we have available from respirable dust
samples and from hearing what was said is whatever
action was taken when MSHA was there resulted in compliance, why couldn't it have been done when the citation was issued to start with.
It may have been in the past maybe the plan
parameters weren't being followed exactly. Maybe
somebody was putting too much air up there that it
overcame the scrubbers. Maybe the people weren't
standing exactly where there were -- we don't know.
When the operator is taking his samples, i t is up
to him to see that the plan parameters are being
followed. When our inspector is there, he is supposed
to see that the plan parameters are being followed.
Mr. Boggs would have to tell you what he actually
observed.
MR. GURKA:
I'd like to ask Mr. Thaxton, before the
order was issued, the company said they had done everything, there was nothing else possible they could do.
In your opinion, given that set of circumstances, would
it still be reasonable to go ahead and issue the (B)
order or do you think they should have been given
additional time?
THE WITNESS: Given the results of the samples that had
been submitted by the operator we didn't see where a
significant effort was being made on the operator's
part to come back into compliance.
Mr. Richards was recalled by the contestant and he denied
that Mr. Thaxton said anything about the Pittsburgh laboratory
advising Mr. Thaxton not to post-weigh the contestants cassettes.

2088

Mr. Richards stated that he was under the impression that
Mr. Thaxton's staff would cooperate and help solve the suspicion
that the cassettes may have been contaminated and post-weigh the
cassettes (Tr. 236). Mr. Richards confirmed that he was not
aware of the fact that MSHA conducted tours of the Mt. Hope
laboratory, and that he was simply told he could not see the lab,
and it was his understanding that he was not allowed in under any
circumstances (Tr. 236-238).
Mr. Thaxton was recalled by the court, and he confirmed that
the Mt. Hope laboratory is a "controlled environment" and that
only "authorized. personnel" are permitted to enter the lab. He
also confirmed that he informed Mr. Richards that he would try to
post-weigh sam~les, but after subsequently speaking to the
Pittsburgh lab, he was informed not to post-weigh the full
cassette capsule by placing them in the balance with dirt on
them. Mr. Thaxton stated that he had no weighing problem with
the samples the contestant was using for its own benefit because
they were clean. He confirmed that he may not have informed
Mr. Richards that he could have a tour of the lab (Tr. 241).
In response to further questions, Mr. Thaxton stated as
follows (Tr. 241-243):
JUDGE KOUTRAS: Do you have an opinion as to whether
the testimony that you've heard today about Peabody's
concern with regard to the possible problem with the
cassette to be reasonable or valid, or do you think it
is just something they are trying to conjure up here?
Try to beat the rap so to speak?
THE WITNESS: I purchase cassettes for our entire
district.
I buy cassettes and have used them for two
or three years. They are that old. We have never had
a problem with any of our cassettes. They are checked
by manufacturers through our Pittsburgh lab. Eight
percent of the cassettes are sent in for verification
of the initial weights. We have never had any problem
with MSA cassettes in the past.
JUDGE KOUTRAS:

Were they using MSA cassettes?

THE WITNESS: Yes, sir. It is the only approved
cassette assembly at this time.
JUDGE KOUTRAS: You've heard their testimony that they
explored every reasonable possibility: the scrubbers,
the machines, the men, everything. They thought it
might be possible that there was something wrong with
the cassettes. They went to MSHA for some assistance
and they were turned away and that made them feel
pretty bad.

2089

Now they are def ending this thing on the basis
that MSHA wouldn't help them and they didn't get any
cooperation. They say, "we did everything that we
thought was reasonable and we don't understand why this
guy dropped an order on us."
THE WITNESS: Like they stated, they brought 12
cassettes into us when they thought the cassettes were
a problem. We did open up seven of the cassettes,
weighed the internal package and did not find a significant difference between the initial weights of those
cassettes. From that we gathered that the filters were
indeed • . · .
JUDGE KOUTRAS: Let me ask you this one more time. Do
you know of any policy in the district off ice with
regard to the enforcement of respirable dust samples,
and whether the inspectors are instructed if the
samples show non-compliance after the initial citation,
they are to issue an order.
THE WITNESS: Only if they determine that significant
action is not being taken by the operator to be in
compliance.
JUDGE KOUTRAS: Here you have a case where the inspector was on scene and the mine operator both agree that
there is no problem. They can't find a problem.
THE WITNESS: That is quite possible. The inspector is
not trained actually to go in and take the system
apart. He may or may not be able to see anything.
Findings and conclusions
The undisputed facts in this case establish that a section
104(a) "S&S" Citation No. 9959601, was issued by MSHA Inspector
Billy G. Wiley on March 22, 1988. The citation was served on the
contestant by mail, and it was based on the fact that five valid
dust samples collected by the contestant for the designated
occupation in mechanized mining unit 017-0, exceeded the requirements of mandatory health standard 70.101. As a result of the
citation, the contestant was required to "take corrective actions
to lowe.r the respirable dust and then sample each production
shift until five valid samples are taken and submitted to the
Pittsburgh Respirable Dust Processing Laboratory.'' Inspector
Wiley fixed the abatement time as April 13, 1988.
The contestant concedes that it did not contest the citation
or the proposed civil penalty assessment for the violation, and
that the penalty was paid. However, contestant asserts that the

2090

payment of the penalty was an inadvertent mistake, and that it
was paid when it received a collection letter from MSHA in which
legal action to collect the penalty was threatened. Citing the
Commission's decisions in Old Ben Coal Company, 7 FMSHRC 205
(February 1985) (footnotes 4 and 6), and Rivco Dredging Corp.,
10 FMSHRC 624 (May 1988), contestant takes the position that an
inadvertent or mistaken payment of a civil penalty assessment
should not pose a technical obstacle to a decision on the merits
of a contested withdrawal order.
In support of its contention that the civil penalty assessment for the citation was paid by mistake, contestant submitted
an affidavit executed by its counsel Eugene P. Schmittgens, Jr.
Mr. Schmittgens explains that a review of his file with regard to
the civil penalty mine identification assessment control number
46-012143-03580, dated June 13, 1988, reflects a notation that
Order Number 09959601 was marked DNP (Do not pay), and that the
proposed civil penalty amount of $620 was deducted from the total
proposed penalty for the order and underlying citation.
Mr. Schmittgens explains further that upon receipt of a letter
from MSHA's collections office September 8, 1988, advising the
contestant that MSHA had received a partial payment for the case,
and that it was to remit an additional $620 under threat of a
collection action if it did not do so, payment was made.
Mr. Schmittgens asserted that the payment was the result of an
administrative error, oversight or mistake, and that at no time
was any action contemplated by the contestant which would be
inconsistent with its right to contest the section 104(b) order
which is in issue in this case.
MSHA concedes that the Notice of Contest filed by the contestant preserved its right to contest the section 104(b) order.
However, MSHA takes the position .that the contest filed by the
contestant was filed too late to preserve its right to contest
the section 104(a) citation. MSHA points out that the contestant
failed to timely contest the section 104(a) citation which was
issued on March 22, 1988, and that when it filed its Notice of
Contest on May 19, 1988, while it preserved its right to contest
the section 104(b) order, the contest was too late to preserve
its right to contest the citation. MSHA further points out that
the contestant had a second chance to contest the citation when
the civil penalty proceeding was initiated, but that it failed to
request a hearing on the merits of the violation, and subsequently paid the civil penalty assessment for the violation in
question.
·
Recognizing the fact that the Commission has held that an
operator's right to contest a violation is not extinguished when
a civil penalty is paid by genuine mistake, MSHA concludes that
on the facts of .this case, there was no such mistake on the part
of the contestant. Citing the decisions in Coal Junction Coal
Company, 11 FMSHRC 502 (April 1989) , Camp Fork Fuel Company,

2091

11 FMSHRC 496 (April 1989), and Westmoreland Coal Company,
11 FMSHRC 275 (March 1989), MSHA point out that in each of these
cases, the.operator paid the penalty after it had timely
requested a hearing on the violations in question.
In. the
instant case, MSHA argues that the contestant did not timely
request a hearing on the violation described in the section
104(a) citation, and that it would be absurd to allow it to
resurrect its right to contest the violation simply because it
"mistakenly" paid the assessed penalty after its right to contest
the violation had expired. MSHA concludes that the contestant's
mistake was not in paying the penalty, but in not requesting a
hearing in the first place, and that since neither the citation
or the penalty were contested, the citation has become a final
order of the commission pursuant to section 105(a) of the Act,
and it is not subject to further review.
Section 105 of the Act provides an operator with two opportunities to contest and request a hearing concerning the issuance
of a section 104(a) citation.
It may seek review of an abated
citation pursuant to section 105(d) before a civil penalty
assessment is proposed by MSHA, and it may seek review pursuant
to section 105(a) by contestirtg the proposed civil penalty
assessment when such a proceeding is filed by MSHA. However, if
an operator fails to contest a civil penalty proposed for' a
citation, section 105(a) expressly provides that both "the citation and the proposed assessment of penalty shall be deemed the
final order of the Commission and not subject to review by any
court or agency." Further, an operator's payment of a proposed
penalty constitutes an admission of the underlying violation and
precludes the operator from continuing a pending section 105(d)
contest of the violation. Old Ben Coal Company, supra, 7 FMSHRC
at 209.
"For purposes of the Act, paid penalties that have
become final orders pursuant to section 105(a) reflect violations
of the Act and the assertion of violation contained in the cita~
tion is regarded as true" Id. See also Amax Coal Co. of
Missouri, 4 FMSHRC 975, 978-79 (June 1982); Ranger Fuel
Corporation, 10 FMSHRC 612 (May 1988).
On the facts of the instant proceeding, it seems abundantly
clear to me that the contestant failed to avail itself of two
opportunities granted by the Act to contest the allegation of
violation made in the section 104(a) citation in question.
Instead, it paid the civil penalty proposed for the violation,
and I cannot conclude that such payment was inadvertently or
mistakenly made. The facts here show that the contestant never
requested to be heard on the citation, and information provided
by the affidavit executed by Mr. Schmittgens leads me to conclude
and find that the "DNP (Do not pay)" notation referred to therein
makes specific reference to the order and not the citation.
In
any event, I agree with MSHA's position on this issue, and I
conclude and find that while the contestant has preserved its
right to challenge the legality of the section 104(b) order, both

2092

the validity of the citation and the civil penalty proposal for
the violation stated therein are final under section 105(a) of
the Act and not subject to review. Accordingly, the contestant's
arguments to the contrary ARE REJECTED.
The Section 104(b) Order
The principal issue presented in this case is whether or not
Inspector Boggs acted reasonably in issuing section 104(b) Order
No. 3141311, and declining to further extend the period of time
for abatement of the conditions cited in the section 104(a)
Citation No. 9959601.
Section 104(a) of the Act, 30 u.s.c. § 814(a), provides in
part as follows:
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 abatement of the violation.
Section 104(b) of the Act, 30 u.s.c. § 814(b), provides as
follows:
If, upon any follow-up inspection of a • • . mine,
an authorized representative of the Secretary finds (1)
that a violation described in a citation issued pursuant to [section 104] • • . has not been totally
abated within the period of time as originally fixed
therein or as 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) of this section, to be
withdrawn from, and to be prohibited from entering,
such area until an authorized representative of the
Secretary determines that such violation has been
abated.
In this case, the section 104(a) citation was issued on
March 22, 1988, and Inspector Wiley fixed the initial abatement
time as April 13, 1988. He required the contestant to take the
necessary corrective action to lower the respirable dust exposure, and to sample each production shift until five valid dust
samples were taken and submitted to MSHA's Pittsburgh laboratory.
Mr. Wiley subsequently modified the citation to permit the contestant to submit the samples to MSHA's Mt. Hope laboratory, and
this mo.dif ication was served on the contestant by mail on

2093

April 11, 1988, 2 days before the abatement period was due to
expire. The original abatement date remained unaffected by this
modification.
On April 13, 1988, the date fixed for abatement of the
citation, Inspector Boggs modified the citation in order to allow
the contestant more time to collect the respirable dust samples
for the cited MMU 017-0 unit, and he extended the abatement time
five (5) additional days to April 18, 1988. Thereafter, on
April 19, 1988, at 9:55 a.m., Inspector Boggs issued the contested section 104(b) withdrawal order, and the reason stated for
this action is that "the operator failed to adequately control
the respirable dust in the working environment of designated
occupation 036 continuous miner in the 3 North 017-0 section."
At 2:00 p.m. that same day, Inspector Boggs modified the order in
view of the contestant's submission and implementation of a
revised respirable dust-control plan, and the modified order
allowed the contestant to continue to operate in order to collect
dust samples on the cited unit to determine whether compliance
had been attained. Mr. Boggs subsequently terminated the order
at 4:50 p.m., on April 21, 1988, after the sample results for six
valid samples collected during an MSHA inspection confirmed that
the cited unit was in compliance.
The contestant argues that an inspector's determination to
issue a section 104(b) withdrawal order must be based upon the
facts confronting him at the time regarding whether an additional
abatement period should be allowed, Old Ben Coal Company,
6 IBMA 294, 1 MSHC 1452 (1976). In making such a decision,
.
contestant asserts that the inspector must exercise his discretion in a reasonable manner, and that any decision not to extend
the abatement time must be reasonably made, and it cannot be
arbitrary or capricious, United States Steel Corporation, 7 IBMA
109, 1 MSHC 1490 (1976); Peter White Coal Mining Corporation,
1 FMSHRC 255, 1 MSHC 2086 (1979).
The contestant asserts that on the facts of this case,
Inspector Boggs abrogated his responsibility to make an informed
judgment of all of the facts and circumstances necessary to any
reasonable determination as to whether or not the time for abatement should be extended. Contestant asserts that Mr. Boggs' own
testimony clearly shows that while he had an opportunity to
acquaint himself with the facts, he neglected to do so.
In
support of this argument, contestant points out that Inspector
Boggs was present at the mine on 8 of the 20-work days between
the issuance of the citation and the order, and despite the fact
that he knew that the mine had only three working sections, and
that a working section is one of the places with which he was
concerned, he did not visit the cited 017 unit in March or April,
1988, until after he issued the order. The contestant further
points out that Mr. Boggs never discussed with the contestant a

2094

respirable dust problem on the section, or efforts being made by
the contestant to abate such a problem during this time.
Contestant concludes that at the time he issued the order,
Inspector Boggs, by his own testimony, had no facts upon which to
make a finding that the period for abatement of the citation
should not be extended. Despite being present at the mine and
having the information at his fingertips, contestant maintains
that Mr. Boggs made no effort to inform himself of the nature of
the problem on the 017 unit, or the efforts being made to control
respirable dust there. Instead, without even discussing the
matter with his supervisor, contestant concludes that Mr. Boggs
cavalierly issued the order upon the bare knowledge that measurement of the dUst samples taken on April 11 through 15, 1988, did
not show compliance with the applicable dust standard.
Contestant further concludes that Mr. Boggs gave no consideration
to the second part of section 104(a), whether the time to abate
should be extended, and because he ignored the facts which confronted him and acted in an arbitrary and capricious manner, the
order must be vacated.
Contestant argues that the time for abatement of the violation should have been extended. In support of this conclusion,
contestant argues that where the action that is required of an
operator to achieve abatement is known, sufficient time to
accomplish abatement may be considered to be reasonable abatement. However, in a case where the operator must first determine
what action is necessary to achieve abatement, reasonable time
must necessarily include both sufficient time for the operator to
determine what action is necessary and sufficient time to
accomplish that action. Additionally, in the case of a citation
issued for an average concentration of respirable dust that
exceeds the applicable standard, _contestant suggests that the
abatement time must also include sufficient time to take the
required number of samples and have them processed by MSHA. In
the present case, contestant maintains that even if Inspector
Boggs had attempted to inform himself of the facts pertinent to
the decision of whether to extend the abatement time, he considered only the time necessary to take five valid samples to be
reasonable, and completely disregarded other factors.
Contestant argues that the cited MMU 107 represented a state
of the art dust control system, and that at the time the citation
was issued, it was already taking extraordinary measures to
insure that this system was working properly. Because there
appeared to be no problem in the actual control of respirable
dust, contestant suspected that the violation arose from a
problem in the testing or measurement of respirable dust, and·
while continuing its efforts to maintain MMU 017 in top operating
condition as it .had before receiving the citation, it directed
its abatement efforts toward determining the cause of the problem
in the testing and measurement area. Specifically, it considered

2095

whether the problem had been caused by inaccuracies in the manufacturer's initial weights for the dust sampling cassettes used
in determining weight gain and dust concentration; whether a
physical change or deterioration in the cassettes had occurred
due to their age; and whether MSHA had possibly made errors in
its processing of samples.
Contestant maintains that all of its abatement efforts,
including the meetings with mine personnel, the review of the
ventilation and dust-control plan with the employees involved,
the ~fforts at maintaining the dust control system, and the
efforts to determine where a problem existed in the testing and
measurement of dust, were all communicated to MSHA, and according
to the testimony of the contestant's safety manager, Inspector
Boggs was kept informed of these efforts. Contestant points out
that it also met with Mr. Thaxton and with MSHA's subdistrict
manager for the specific purpose of discussing the cause of the
problems on the cited unit.
Contestant argues that despite its good faith efforts in
attempting to abate the violation, Inspector Boggs followed
MSHA's "standard operating procedure" in issuing the order,
claiming that he had "no choice" but to issue the order by simply
relying on his determination that a reasonable time for the
contestant to abate the violation was merely the time required to
take five valid samples over five continuous shifts. Contestant
maintains that in complete disregard of the circumstances, and
its abatement efforts, MSHA's "standard operating procedure"
requiring the issuance of an order when an operator does not come
back into compliance with the respirable dust standard and that a
change be made in the ventilation and dust-control plan, regardless of the effect of such a change on dust control, gave the
inspector "no choice" but to issue the order.
Finally, contestant argues that in addition to the reasonableness of the abatement time, and the operator's abatement
efforts, another factor which should be considered in this case
is the relative hazard to which the contestant's employees on the
cited 017 unit were exposed, Eastern Associated Coal Corp.,
1 MSHC 1165 (June 22, 1978); Youghiogheny & Ohio Coal Company,
8 FMSHRC 330, 3 MSHC 2179 (1986). Contestant asserts that there
was little or no hazard posed by an extension of the abatement
time, and although the figures for respirable dust that MSHA
measured were in excess of the standard, there is no evidence
that these figures actually resulted from excessive levels of
respirable dust in the air on the 017 unit. To the contrary,
contestant concludes that all of the evidence in the record
points toward a problem in measurement of respirable dust, and
that the only thing that Mr. Boggs testified that contestant had
not done that it might have tried in order to abate the violation
was to assign a person other than the section foreman to monitor
the dust sampling pumps. Contestant points out that Mr. Boggs

2096

conceded this would only have had a possible effect on testing
and measurement and not on the actual levels of dust (Tr. 28).
Therefore, contestant concludes that the employees on the 017
unit would suffer no harm by an extension of abatement time to
enable the contestant to determine how to effectively measure
levels of respirable dust to achieve compliance with the applicable standard.
Contestant concludes that it made diligent, good faith
efforts to control respirable dust and to abate the respirable
dust violation on the cited 017 MMU, and that the order was
issued by MSHA in accordance with some "standard operating procedure" which considers only failure to attain compliance, and
ignores the operator's abatement efforts, the real nature of the
problem that led to the violation, and the fact that minimal or
no harm was posed to the miners. Contestant concludes that such
rigid inflexibility in enforcement is not contemplated by the Act
and should not be permitted in this case, and that a reasonable
time to abate a violation should include sufficient time for the
operator to determine what action is necessary to achieve abatement and to perform that action, not just the amount of time
necessary to take the required samples and to have them processed
by MSHA. The nature of the problem in this case and the diligent, good faith efforts of the contestant make it reasonable for
an extension of time to abate to have been given, especially when
the extension poses little or no hazard to miners.
MSHA takes the position that Inspector Boggs acted reasonably in not extending the time for abatement of the citation.
Citing United States Steel Corporation, 7 IBMA 109 (1976);
Youghiogheny and Ohio Coal Company, 8 FMSHRC 330, 339 (1986); and
Consolidation Coal Company, 3 FMSHRC 2201, 2204 (1981), MSHA
states that three factors are generally considered in determining
whether the decision not to extend the abatement time was reasonable, and it takes the position that these factors indicate that
Inspector Boggs acted reasonably in this case. The factors cited
are as follows:
1. The degree of danger that any extension would
have caused to miners;
2. The diligence of the operator in attempting to
meet the time originally set for abatement; and
3. The disruptive effect an extension would have
had upon operating shifts.
MSHA argues that ·any extension of the abatement period would
have increased the miners' exposure to the hazards of excessive
concentrations of respirable dust. Although recognizing the fact
that the harmful effect of any one incident of exposure to
excessive concentrations of respirable dust is negligible, MSHA

2097

points out that such exposure nonetheless is presumed to be a
significant and substantial hazard. The miners on the cited
017-0 unit were not wearing protective equipment, and there is no
other evidence indicating that their exposure would not significantly and substantially contribute to respiratory disease.
MSHA asserts that the subject mine, and the cited 017-0 unit
in particular, have a history of excessive levels of respirable
dust, and extending the abatement period would have increased the
miners' cumulative exposure to this hazard (exhibit G-4, Tr. 64,
90-91). MSHA agrees that if the. dust samples submitted by the
contestant reflected inaccurate measurements, rather than
excessive concentrations of respirable dust, and the respirable
dust on the cited unit had in fact been below the applicable
limit, there would have been no harm in extending the abatement
period. MSHA states that there is no credible evidence to
support any assertion that the dust samples were inaccurate, and
it points out that the contestant has not contested numerous
prior citation for excessive dust at the mine and the cited 017-0
unit.
With regard to the contestant's diligence in attempting to
abate the citation, MSHA agrees that immediately after the citation was issued, the contestant attempted to abate the violation
by thoroughly inspecting and repairing its mining equipment, dust
scrubbers, and ventilation system on the cited unit, and that the
abatement time was extended to allow the contestant to take
additional samples. MSHA states further that by April 19, 1988,
the contestant had determined that there was nothing more it
could do underground to abate the violation, and MSHA· suggests
that it does not appear that the contestant had done everything
possible to achieve abatement. In support of this conclusion,
MSHA points out that Inspector Boggs suggested the assignment of
a miner to monitor the pumps, and that Mr. Thaxton observed that
the contestant did not balance its scrubber system (Dep. Tr.
27-28; Hrg. Tr. 228-29). MSHA also points out that the
contestant had no problem coming into compliance once the order
was issued (Tr. 233-34).
MSHA asserts that while the contestant may have been diligent in inspecting its mining equipment, it was lax in checking
its sampling cassettes. MSHA points out that within an hour of
the issuance of the citation, the contestant had suspected that
the cassettes it was using had deteriorated due to age, and
instead· of using newer cassettes, or submitting the suspected
ones to MSHA or an independent lab for analysis, it pursued an
amateurish and inadequate investigation into the reliability of
its old cassettes. Further, although the contestant's safety
supervisor admitted that the contestant had suspected the filters
to be defective, he did not really check them. MSHA concludes
that had Inspector Boggs extended the abatement time, the only
action the contestant would have taken would have been to use new

2098

cassettes, and there is no credible excuse for its not having
done so previously. MSHA further states that the pattern of dust
concentrations analyzed during the abatement period supports the
conclusion that the contestant was not making any progress in
abating the violation (Tr. 81-82; 234-235).
With regard to the disruptive effect of the order, MSHA
argues that the issuance of the order did not disrupt production
on the cited unit because the unit was normally idle for maintenance during the day shift, and the order was modified 5 hours
later the same day to allow mining and sampling to continue.
In response to the contestant's assertions that it received
little or no cooperation from MSHA during its efforts to determine whether or not its sampling cassettes were defective, MSHA
states that the contestant never expressed any dissatisfaction
with the assistance provided by MSHA regarding its mining equipment, dust scrubbers, or ventilation system. MSHA asserts that
Inspector Boggs made numerous visits to the mine during the
period set for abatement, and although he did not inspect the 017
unit, he went out of his way to visit this area in an attempt to
assist in abating the violation (Tr. 183). MSHA concludes that
Mr. Boggs was no more successful at trouble-shooting than contestant• s experts were, and that it does not appear that the
contestant requested very much help with its underground mining
operations (Dep. Tr. 35). MSHA further concludes that its
failure to come up with a solution to the dust problem does not
mean that it was not being cooperative or unreasonable.
In response to the contestant's dissatisfaction with the
response it received from MSHA's laboratory personnel, MSHA
points out that it agreed to weigh some filters from old
cassettes to see if the weights reported by the manufacturer were
accurate, and it pre-weighed some cassettes for use in subsequent
samplings. MSHA admits that it refused to weigh these cassettes
after sampling, and refused to allow the contestant's representatives to witness its laboratory analysis of the filters, but it
maintains that given the sensitivity of its laboratory equipment,
and the fear of contamination, its refusals were reasonable in
the circumstances. Conceding that there may have been some
misunderstanding over what could be done at its Mt. Hope
Laboratory, MSHA states that it cooperated and assisted with the
contestant's officials as much as possible.
Contrary to the contestant's assertions, MSHA argues that it
was more than reasonable in giving the contestant the opportunity
to abate the violation, and that the contestant was given a
second chance when MSHA extended the time for abatement on
April 13, even though a set of samples that exceeded the applicable standard nad already been submitted during the original
abatement period. Furthermore, MSHA states that it was quite
lenient with the contestant after the order had been issued in

2099

that knowing that the contestant had already reviewed the conditions on the cited unit, and that any defect in its sampling
procedure would be eliminated because MSHA would be collecting
the samples to determine whether the order should be lifted, MSHA
accepted minor changes in the dust-control plan and promptly
modified the order to allow mining to continue.
MSHA agrees that neither party in this case has been able to
identify the problem that caused excessive concentrations of
respirable dust in the sampling taken prior to April 20, 1988.
In response to the contestant's insistence that the condition on
the cited unit were the same on April 20 as they were when the
previous samples were taken, and that the only difference was
that the samples of April 20 were taken by MSHA personnel using
cassettes supplied by MSHA, MSHA points out that Inspector Boggs
recalled that the contestant may have installed a larger hose
between the water supply and the continuous-mining machine (Dep.
Tr. 39). MSHA concludes that unless the contestant made some
other undisclosed changes, it is likely that the violation was
caused by the contestant's improper sampling methods, its defective cassettes, or decreased production at the time of MSHA's
sampling (Hrg. Tr. 78-79, 96). MSHA points out that because the
serial numbers on the cassettes used by MSHA on April 20, 1988
are lower than the serial numbers on the cassettes the contestant
had been using, the cassettes used by MSHA were probably older
than the ones being used by the contestant (Tr. 243, exhibits
G-1, G-5, G-6). MSHA concludes that any defects in the contestant's cassettes would have been caused by its storage and
handling, rather than just the age of the cassettes.
MSHA further points out that subsequent to the termination
of the contested order, the contestant was again cited for
several violations of the respirable dust standards on its 017-0
unit (Tr. 84-85; exhibit G-4, pg. 3), and that the last citation
was abated by the abandoning of its "state of the art" equipment
(Tr. 112, 124-125). Since the contestant had already done everything it planned to do in regards to the dust concentrations on
the cited unit, and since there is no credible excuse for continuing to use suspect sampling cassettes, MSHA concludes that
the decision not to extend the time for abatement any further was
more than reasonable.
There is no dispute that the cited respirable dust violation
was not abated at the time Inspector Boggs issued the contested
order, and the parties are in agreement that the cause of the
high sampling results obtained by the contestant was never discovered. The critical issue is whether or not the inspector
acted unreasonably in not extending the time for abatement, and
whether the issuance of the order was arbitrary. Although MSHA
is correct that .the three factors stated in the Youghiogheny and
Ohio Coal Company case, supra, namely (1) the degree of danger
that any extension in the abatement time would have caused to

2100

miners, (2) the operator's diligence in attempting to meet the
initial abatement time, and (3) the disruptive effect that an
extension of .time would have had upon operating shifts, are
factors to be considered in determining whether any decision not
to extend the abatement time was reasonable, the threshold question in this case is whether or not Inspector Boggs made more
than a cursory decision not to extend the time, or simply
arbitrarily decided to issue the order without consideration of
these or other factors.
In Peter White Coal Mining Corporation, 1 FMSHRC 255
(April 24, 1979), Judge Fauver vacated a section 104(b) order on
the ground that the inspector failed to give any consideration to
the extension of time allowed for abatement of the citation. The
judge found that such consideration was a basic requirement for
the issuance of such an order.
United States Steel Corporation, 7 IBMA 109 (November 29,
1976, 1 MSHC 1490 (1976)), -involved a citation for a violation of
respirable dust standard 30 C.F.R. § 70.250. It was held that as
a matter of law, an inspector's authority under section 104(b) in
determining whether the abatement time for the violation should
be extended, or an order of withdrawal issued, carries the
implication that it will be exercised reasonably, not arbitrarily
or capriciously. In that case, although the inspector made
inquiries into the operator's abatement efforts, and was aware of
certain mitigating circumstances, he nonetheless issued a withdrawal order. The presiding judge held that the inspector's
issuance of the order was unreasonable and he vacated it. On
appeal, his decision was affirmed.
In Consolidation Coal Company, 1 FMSHRC 2638 (October 1979)
Judge Broderick vacated a section 104(b) order after finding that
the operator had done substantial work to abate the cited condition and that the work was ongoing when the inspector next
returned to the mine to check on the abatement. Under these
circumstances, Judge Broderick concluded that the abatement time
should have been extended.
Eastern Associated coal Corporation, 1 MSHC 1665 (June 22,
1978), decided by former Commission Judge Forrest Stewart, concerned an operator's challenge to the initial abatement time
fixed by an inspector to abate a respirable dust violation of
30 C.F.R. § 70.lOO(b), and a challenge to the inspector's failure
to further extend the abatement time, which resulted in the
issuance of a section 104(b) order. Judge Stewart held that such
an order should be based on the prevailing circumstances including the initial sampling processing time; the time required to
evaluate the samples and make changes; the time to review the
results of additional samples; and the degree of hazard
presented. Judge Stewart noted that the citation was issued

2101

solely on the basis of an MSHA computer print-out reflecting noncompliance with the applicable dust standard; that there was no
communication between the operator and MSHA concerning whether
the time set for abatement was sufficient considering the
existing circumstances, that no inspection was made, and that the
initial abatement time was the "standard" amount of time set in
all respirable dust cases, i.g., the time determined by the
inspector to sufficiently allow for the taking and receipt of
results of post-notice respirable dust samples taken by the
inspector.
on the facts of the Eastern Associated case, which indicated
that the operator was experiencing adverse mining conditions, was
shut down for a period of time due to a strike, experienced
difficulties in obtaining repair items for its equipment, needed
additional time to evaluate the results of its dust sampling in
order to decide where the corrective action was needed, and the
short term dust exposure hazard to miners, Judge Stewart found
that the inspector failed to give adequate consideration to all
of these circumstances, and he vacated the order based on his
finding that the inspector should have allowed additional abatement time and extended the time rather than issuing a withdrawal
order.
Mr. Boggs' belief that the contestant was given a reasonable
time to abate the violation was based solely on his view that the
time allowed for additional sampling and the receipt of the
results was ample and reasonable. He confirmed that his normal
practice in deciding whether or not to extend the abatement time
is based on whether or not an operator can justify the additional
time because of equipment breakdowns, strikes, or other circumstances beyond the operator's control, and that in this case, he
would have extended the time if it were justified. I fail to
understand how Mr. Boggs could have made any informed judgment as
to whether or not the abatement time should have been further
extended when he made no further inquiries as to the contestant's
abatement efforts, made no effort to determine what the contestant was doing in its attempts to abate the violation, and simply
concluded that no further time would be permitted because MSHA's
"standard operating procedure" left him no choice but to issue
the order simply because the additional sampling showed noncompliance.
I find no rational basis for an inspector to automatically issue a section 104(b) withdrawal order simply because
an operator's sampling results reflects continued non-compliance
with the dust standards. If this were the case, an inspector
could refuse to further extend any abatement time for any violation simply because an operator has not abated the condition
within the initial time fixed for abatement, completely ignoring
the circumstances presented, or the three factors alluded to by
the aforementioned case law.

2102

When asked what he would have done to achieve abatement,
Inspector Boggs stated that he would have assigned someone to
make sure the· dust sampling pumps were properly taken care of,
that he would have paid close attention to the ventilation on the
section and the continuous-mining machine water spraying operations, and that he would have checked the water pressures on the
machines, and monitored the ventilation for any necessary adjustments. However, since Mr. Boggs did not communicate further with
anyone at the mine, and did not visit the working section where
the cited unit was operating, even though he was in the mine
conducting inspections during the abatement period, he obviously
had no information as to whether or not the contestant was doing
any of the things that he suggested. Any involvement by
Mr. Boggs came after the order was issued.
I can only conclude
that his decision that a further extension of time was not justified was based solely on his belief that he was required to issue
an order, regardless of any abatement efforts by the contestant,
if the additional sampling showed non-compliance. I find such a
procedure to be arbitrary on its face.
On the facts of this case, I agree with the contestant's
assertion that Inspector Boggs did little or nothing to ascertain
all of the facts and circumstances before issuing the order.
By
his own admission, Mr. Boggs confirmed that he had "no choice"
but to issue the order, and his decision to do so was based
solely on the fact that the dust samples submitted by the contestant for April 13 through 15, 1988, reflected that the cited unit
was still out of compliance. Mr. Boggs believed that the contestant was given a reasonable time to abate the violation because
it was allowed additional time to collect and submit dust samples
to MSHA, and he confirmed that he would not have extended the
citation abatement time if the contestant were not attempting to
abate the violation in good faith. He further confirmed that it
was MSHA "standard operating procedure" for an inspector to issue
a section 104(b) order after additional sampling reflects
non-compliance, and that after an order is issued, an operator is
required to make changes in its ventilation and dust-control
plan, in addition to further sampling.
I take note of the fact that the inspector who issued the
initial citation and fixed the abatement time for April 13, 1988,
subsequently modified it to permit the contestant to submit dust
samples to MSHA's Mt. Hope Laboratory rather than to its
Pittsburgh laboratory. This modification was made on April 11,
1988, 2 days before the expiration of the initial abatement time.
Since the contestant had to sample over five consecutive working
shifts, and since it was sampling during the period April 11
through 15, 1988, it had 3 days subsequent to the taking of the
last sample to receive and consider the sampling results before
the expiration of the extended abatement time on April 18, 1988,
which was given by Mr. Boggs. Mr. Boggs concluded that this was
ample and reasonable time to abate, and his conclusion in this

2103

regard was obviously made without any knowledge of the contestant's abatement efforts, and was based solely on the results of
the sampling.
MSHA's Supervisory Industrial Hygienist Thaxton confirmed
that he did not discuss the violation with Inspector Boggs.
Mr. Thaxton also confirmed that pursuant to MSHA's policy, if an
inspector determines that a mine operator has made no effort to
control dust, and simply submits additional samples, the inspector is instructed not to extend the abatement time further and to
issue a section 104(b) order. In the instant case, Mr. Thaxton
further confirmed that if Inspector Boggs was unaware of any
action by the contestant to abate the violation and come into
compliance, he would be justified in issuing a section 104(b)
order if the only action taken by the contestant was to take
additional samples.
Mr. Thaxton took the position that since the contestant took
"whatever action" was necessary to abate the order, it could have
done so when the citation was issued. Like Mr. Boggs,
Mr. Thaxton's belief that the contestant made no significant
compliance effort was based on the samples which it had submitted. However, Mr. Thaxton conceded that he had never been in
the mine, never discussed the violation with Mr. Boggs, and had
no idea what was causing the problem. He speculated that the
contestant may not have been following its dust-control plan, may
have introduced too much ventilation which may have reduced the
efficiency of the scrubbers, and that the individuals being
monitored for dust may not have been positioned properly. He
stated that "when our inspector is there, he is supposed to see
that the plan parameters are being followed. Mr. Boggs would
have to tell you what he actually observed." Based on the record
in this case, I cannot conclude that Mr. Boggs saw anything
relating to the contestant's abatement efforts until after the
order was issued. Mr. Thaxton agreed that in order to cure a
dust problem, the operator must kr.ow what caused it, and that it
must have enough time to discover the cause.
The credible testimony of contestant's safety supervisors
Richards and Jarrell reflect that during the abatement period the
contestant was making an effort to ascertain the cause of the
dust problem, including the dismantling of the mining machine,
reviewing and discussing its ventilation and dust-control plan
with its employees, monitoring its operations, and meetings with
MSHA officials. Maintenance foreman Barker testified that he had
four maintenance people working on the cited unit on a daily
basis cleaning and servicing the miner machine scrubber system
prior to the sampling in March, 1988, and during the sampling of
April 12 and 14, 1988. Laboratory technician Bailey confirmed
that he preweighed and post weighed some of the sampling
cassettes used during the April, 1988 sampling.

2104

The record establishes that after exhausting all of its
efforts to isolate the possible cause of the high dust sampling
results, the ·contestant focused its efforts on pursuing its
belief that one of MSHA's Pittsburgh laboratory technician's may
have miscalculated the sampling results, or that the sampling
cassettes used in the sampling by the contestant were either
defective or contaminated.
Inspector Boggs recalled that he
heard some comments by contestant's personnel complaining about
their belief that a new employee at the MSHA Pittsburgh laboratory may have made a mistake in the sampling, and that at the
request of the contestant, some of the samples were allowed to be
submitted to the Mt. Hope laboratory. At page 21 of its posthearing brief, MSHA conceded that "it is likely that the violation was caused by Peabody's improper sampling methods, its
defective cassettes, or decreased production at the time of
MSHA's sampling." Under all of these circumstances, the contestant's suspicions that the defective sampling cassettes may have
caused the high sampling results from its testing is plausible
and reasonable, and I find no basis for concluding that the
contestant advanced this theory as a delaying tactic or to avoid
compliance.
Although it is true that the contestant suspected that its
cassettes may have been defective after the citation was issued
in March, 1988, the fact that it did not discard them because it
had a large supply and they were expensive cannot detract from
its good faith effort to ascertain whether the cassettes were in
fact defective. Although one may agree that the contestant's
methodology in attempting to determine whether the cassettes were
defective was somewhat amateurish and inadequate, I cannot conclude that its efforts in this regard were less than reasonable
or lacking in good faith.
Mr. Richards testified that he made one or two trips for
conferences at MSHA's sub-district office, and also visited the
Mt. Hope laboratory in an effort to have the sample cassettes
weighed to determine whether they were defective. Mr. Jarrell
confirmed that he and Mr. Richards visited the Mt. Hope laboratory on April 8, 1988, to weigh some dust samples. He also
confirmed that after the five samples taken on April 12 through
14, 1988, were taken with the pre-weighed cassettes weighed at
the Mt. Hope laboratory and the contestant's laboratory, he
believed that MSHA's Mt. Hope laboratory would post-weigh them as
a means of confirming whether they were contaminated or def ecti ve, but it did not do so. Mr. Thaxton confirmed that he
informed Mr. Richards that he would try to post-weigh the
samples, but subsequently declined to do so on advice of the
Pittsburgh laboratory, and MSHA concedes that there may have been
some misunderstanding over what could be done at the Mt. Hope
facility (Brief,. pg. 20). Mr. Jarrell confirmed that if the
order had not been issued, the old sample cassettes would have
been discarded (Tr. 179).

2105

Under all of the aforementioned circumstances, I conclude
and find that the contestant was making a diligent effort in its
attempts to· ascertain the cause of its dust sampling results
which placed the cited unit out of compliance, and was attempting
in good faith to meet the April 18, 1988, abatement time fixed by
Inspector Boggs. While it may be true that the only action that
the contestant would have taken would have been to discard the
old cassettes and use new ones, I cannot conclude that the fact
that it did not do so was unreasonable or inexcusable.
With regard to the degree of danger that any extension of
the abatement time would have caused the miners, MSHA takes the
position that the mine and the cited 017-0 unit in particular,
have a history of excessive levels of respirable dust, and that
the contestant has not contested numerous prior citations issued
for excessive dust levels of respirable dust on the cited unit in
question. The fact is that MSHA's evidence establishes that the
cited 017-0 unit was previously cited on November 17, 1987, for a
violation of section 70.207(a), for failing to take bimonthly
samples, and was again cited on December 17, 1987, and
February 1, 1989, for violations of section 70.101, for being out
of compliance with the applicable respirable dust standard established for the particular work shifts cited (exhibit G-4). Thus,
with the exception of the uncontested citation which preceded the
order issued in this case, the contestant has been cited with two
violations for exceeding the dust limits on the 017-0 unit.
I
cannot conclude that the cited 017-0 unit has "a history" of
"numerous" violations on this unit.
With regard to the overall respirable dust record for the
entire mine, the information which appears on exhibit G-4, shows
that with the exception
sampling which occurred on March 11,
1988, reflecting 1.7 mg/m for the 019-0 MMU unit for designated
occupation 046, seven additional units which were sampled during
various times in 1987 and 1988, including the 0~7-0 unit, were
all in compliance with the established 1.5 mg/m standard. The
information also reflects that prior to March 22, 1988, MMU 015-0
was cited three times in 1987 for violations of section 70.101.

05

MSHA agrees that if the dust samples submitted by the contestant in this case reflected inaccurate measurements rather
than excessive concentrations of respirable dust, there would
have been no harm in extending the abatement period. MSHA also
agreed that it was likely that the violation was caused by the
contestant's improper sampling methods or defective cassettes,
and this lends credence to the contestant's arguments that there
may have been a problem in the measurement of respirable dust,
rather than excessive levels of respirable dust in the air on the
017-0 unit, and.that an extension of the abatement time to enable
the contestant to determine how to effectively measure levels of

2106

respirable dust to achieve compliance would not have exposed the
employees on the unit to any harm.
After careful consideration of all of the evidence in this
case, I cannot conclude that MSHA has advanced any probative or
reliable evidence to establish that the extension of the abatement time would have adversely affected the safety of the miners
on the unit in question, or that the contestant failed to diligently pursue the abatement of the violation. I further conclude
and find that the failure by the inspector who issued the order
to give any consideration to the contestant's abatement efforts,
or to consider any hazard resulting from the extension of the
abatement time, renders the order invalid. Under all of these
circumstances, the contested order IS VACATED.
ORDER
In view of the foregoing findings and conclusions, IT IS
ORDERED THAT:
1.

Contestant's Contest IS GRANTED.

2. The contested section 104(b) Order
No. 3141311, April 19, 1989, IS VACATED.

Distribution:
Thomas L. Clarke, Peabody Coal Company, P.O. Box 1233,
Charleston, WV 25324 (Certified Mail)
Ronald E. Gurka, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
/fb

2107

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

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

v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-123
A.C. No. 05-00469-03642

..

Dutch Creek No. 2 Mine

MID-CONTINENT RESOURCES,
INC.,
Respondent
DECISION
Appearances:

Before:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Peti tioner1
Edward Mulhall, Jr., Esq., Delaney & Balcomb,
Glenwood Springs, Colorado,
for Respondent.

Judge Lasher

This matter arose pursuant to Section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. Section 820(a)
(herein the Act). Petitioner originally sought assessment of
penalties for 20 alleged violations cited in 20 enforcement
documents (Orders and Citations) involved in this docket.
A prehearing conference was held in this matter and in
related dockets WEST 88-121, 122 and 124 on November 2, 1988,
in Denver, Colorado. Thereafter, hearings were held in various
of these latter dockets and prior to decision the parties reached
amicable resolution thereof.
In this docket, pursuant to my Decision Approving Partial
Settlement in August, 1989, the parties' settlement of 18 of
the 20 enforcement documents involved was approved, leaving
Order No. 3044101 and Citation No. 3044102 to be resolved. .On
October 28, 1989, the parties submitted their Joint Motion to
Approve Settlement and Order Payment as to these last two violations involved, the terms of which are:
Proposed Penalty

Amended
Proposed Penalty

3044101 - 104(d)(l)

$1,500.00

(Amended to
104(a) Citation)
$900.00

3044102 - 104(a)

1,300.00

780.00

Citation/Order No.

2108

It is noted that this agreement is part of an overall
agreement by the parties involving approximately 2,000 Citations
and Orders issued from September, 1987, through March 31, 1989.
The Joint Motion of the parties appears proper and is strongly
supported in the record on the basis of policy and enf orcenent
considerations, and economic factors relevant to both parties.
Accordingly, the Joint Motion is approved and the agreed-on
penalties here assessed.
ORDER
1. Order No. 3044101 is MODIFIED to reflect its nature and
issuance authority from a Section 104(d) Withdrawal Order to a
Section 104(a) Citation.
2. Respondent is ordered to pay to the Secretary of Labor
on or before January 1, 1991, the total sum of $1,680 as and for
the civil penalties above assessed.
3.

This proceeding is DISMISSED.

,/7/P~/7/, 'f~:e4cYA

r

Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail)
Edward Mulhall, Jr., Esq., Delaney & Balcomb, Drawer 790,
818 Colorado Avenue, Glenwood Springs, CO 81602 (Certified Mail)
/ot

2109

2110

ADMINISTRATIVE LAW JUDGE ORDERS

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

OCT OS 1989
..
CIVIL PENALTY PROCEEDINGS

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

Docket No. CBNT 89-81-M
A.C. No. 23-01785-05511

v.
MOBERLY STONE COMPANY,
Respondent

.

Docket No. CENT 89-82-M
A.C. No. 23-01785-05512
Moberly Stone Company Quarry

ORDER DENYING MOTION TO
APPROVE SETTLEMENT
On September 29, 1989, the Secretary filed a Motion to
Approve Settlement and Dismiss Petition for Assessment of Civil
Penalties.
Docket No. CENT 89-81-M contains seven alleged violations,
each assessed at $98 for a total of $686. Docket No.
CENT 89-82-M contains five alleged violations, assessed at a
total of $294. The motion states that with respect to four of
the citations in Docket No. CENT 89-81-M and two in Docket No.
CENT 89-82-M (each assessed at $20), Respondent will pay the
penalties originally assessed. With respect to the remaining
three citations in Docket No. CENT 89-81-M, the motion proposes
that they be reduced from $140 each to $20 each. The motion
states with respect to each of these violations that "although
any injury caused by an accident could be fatal," it is unlikely
that the injury would occur, and the violation should be
reclassified as "nonsignificant and substantial." The three
remaining citations in Docket No. CENT 89-82-M are reudced from
$14Q to $20, $84 to $20 and $140 to $20. The same reasoning is
advanced in support of the reduction sought.
I have considered the motion in the light of the criteria in
section llO(i) of the Act and conclude that the reduction in
penalties proposed is not consistent with those criteria.
Therefore IT IS ORDERED that the Motion to Approve
Settlement is OF.NIED.
IT IS FURTHER ORDERED that the parties respond to
paragraph 2 of the Prehearing Order of July 11, 1989, on or

2111

before October 16, 1989, and inform me of any dates in January or
February 1990 which would cause scheduling conflicts.
1
_ ;l'/1 11_g·

_/i/:J~ zi Ltz~~,(

James A. Broderick
Administrative Law Judge
Distribution:
Dewey P. Sloan,_ Jr., Esq., U.S. Department of Labor, Office of
the Solicitor, 911 Walnut Street, Kansas City, MO 64106
(Certified Mail)
Mr. Paul R. Orr, President, Moberly Stone Co., P.O. Box 582,
Moberly, MO 65270 (Certified Mail)
slk

2112

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

22041

oc r 2'I 1s~s
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'rRATION. ( MSHA),
Petitioner

v.
EASTERN ASSOCIATED COAL
CORPORATION,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. WEVA 89-198
A. C. No. 46-01456-03826

.

Docket No. WEVA 89-199
A. C. No. 46-i456-03824
Federal No. 2 Mine

ORDER OF CONSOLIDATION
AND ORDER
It is ORDERED that WEVA 89-199 be consolidated with
WEVA 89-198.
On October 16, 1989, Petitioner filed a First Request for
Production of Documents and a Motion to Compel Responses to the
Request for Production of Documents. The Request seeks, inter
alia, notes taken by Respondent's agent during a MSHA inspection.
Respondent, in a Response, and a Motion to Strike Petitioner's
Request for Production of Documents filed October 23, 1989,
essentially argues that the Motion should be denied as formal
discovery was not initiated until October 13, 1989, and informal
discovery was agreed to July 24, l989, both dates being more than
20 days subsequent to the filing of the Proposal for Penalty on
July 3, 1989.
Although formal discovery was not initiated within 20 days
after the Pcoposal for Penalty was filed, and more than 60 days
have elapsed since the Proposal was filed, Respondent has not
established any legal prejudice should Petitioner's request be
allowed. Accordingly, in the interest of justice, and in order
to narrow the evidentiary issues, I find that the discovery rules
in 29 C.F.R. § 2700.,55 should be liberally construed.
(S~e,
Hickman v. Taylor 329 U.S. 495 (1947)). Accordingly,
Respondent's Motion to Strike is DENIED.
Respondent, also argues, in essence, that notes taken at the
inspection be not discoverable inasmuch as Petitioner can obtain
the equivalent o.£ the materials without "undue hardship" as its
representative was at the scene of the alleged violation. (See,

2113

Rule 26(b)(3), Fed. R. Civ. P.).
I do not find merit to
Respondent's argument. Clearly written statements of
Respondent's agents that are contemporaneous with the cited
condition, are unique and thus are discoverable (See, Galambus v.
Consol. Freightways Corp. 64 FRO 46& (ND Ind (1974); Gillman v.
United States 53 FRO 316 (DC NY (1979)).
Respondent also asserts that the practice of taking notes at
inspections "were implemented to aid in the preparation of cases
for trial."
Csic). Respondent further asserts that if notes
were in fact taken, they were taken "to prepare a defense should
litigation be required to resolve violations." As such,
Respondent argues, that the notes are not discoverable as they
are covered by the work product protection. Rule 26Cb), supra,
protects from discovery materials " • . • prepared in anticipation
of litigation for trial • • •
" I find that Respondent has not
established that the particular notes in question were prepared
specifically in anticipation of litigation.
It ha8 not been
established by Respondent that at the time the notes were taken,
there was nay substantial anticipation that the subject citation
would be likely to be litigated. Rather, it appear form
Respondent's assertion, that the notes were taken as a standard
procedure at inspections, and as such were taken in the regular
course of business. Accordingly, I conclude that they are
outside the scope of the work product protection.
(See, Moore's
Federal Practice at 26-354, and cases cited therein).
Based on the above, Petitioner's Motion to Compel Responses
is GRAN·rED.
It is ORDERED that, no later than 10 days after the date of
this Order, Respondent shall produce and serve Petitioner with
all materials requested in Petitioner's Request for Production of
Documents filed October 16, 1989.

/i7 .~

~soerger
Administrati~e

Law Judge

(703) 756-6210
Distribution:
Glenn M. Loos, Esq., Office of tne Solicitor, u. s. Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Eugene P. Schmittgens, Jr., Esq., Michael A. Kafoury, Esq.,
Eastern Associated Coal Corporation, P. o. Box 373, St. Louis, MO
63166 {Certified Mail)
dcp

2114

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

(703)

756-6220

O_ctober 30, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 89-69-M
A.C. No. 34-01287-05507
Haskell County Pit & Plant

HASKELL COUNTY GRAVEL
CO., INC.,
Respondent
ORDER DENYING MOTION TO APPROVE SETTLEMENT
On October 30, 1989, the Secretary filed a settlement
agreement of the parties to this proceeding and a motion to
approve the settlement agreement.
The violations were
originally assessed at $10,000, and the parties propose to
settle for $5000.
Four citations were issued to Respondent on November 2
and 3, 1988, growing out of an investigation of a fatal
accident occurring on November 1, 1988. According to the
107(a)/104(a) order/citation issued November 2, a front end
loader crossed over a bumper block into a feeder hopper and
over the crusher.
It turned over and fell 14 feet to the
ground below killing the loader operator.
The citations charged first that Respondent failed to
maintain an adequate bumper block at the jaw crusher feeder
hopper where trucks and front end loaders dumped.
This
violation was assessed at $5000. Second, Respondent was
cited for failure to equip the front end loader with roll
over protection and a seat belt. This violation was assessed
at $3,000.
The third citation charged Respondent with a
defect in the airline on the loader which could materially
reduce the efficiency of the service brakes.
This violation
was assessed at $1000. Finally, Respondent was cited because
the braking system on the front end loader was defective in
that the front service brakes were inoperable.
This citation
was assessed at $1000.

2115

The motion states that penalties in the total amount of
$10,000 will have an adverse effect on the ability of Respondent
to continue in business, but no factual justification for
this conclusion is given in the motion.
The motion states
that each of the allegea violations was considered to be of
very high gravity and causeo by Respondent's negligence.
Respondent is a small operator and has a favorable history
of prior violations, but these facts were presumably considered
in the original assessments. Based on the information provided
with the motion, the settlement agreement, reducing the penalties
by 50%, does not conform to the criteria in section llO(i) of
the Act.
~~

Therefore, the motion to approve the settlement agreement
is DENIED.

j

A i?i
I '_/!.
'4./t:t-i-s /rlvvvat{/icfc
James A. Broderick
Administrative Law Judge

Distribution:
Robert A. Fitz, Esq., U.S. Department of Labor, Office of the
Solicitor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified. Mail)
Jerry Dick, Esq., 6700 w. Western, Oklahoma City, OK 73139
(Certified Mail)
slk

2116
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