FEBRUARY 1987
COMMISSION DECISIONS
02-03-87
02-10-87
02-10-87
02-10-87
02-27-87

PENN 86-83-D
Secretary of Labor on behalf of Joseph
Delisio v. Mathies Coal Co.
Sec. Labor for James Corbin, Robert Corbin, KENT 84-255-D
& A.G. Taylor v. Sugartree Corporation
WEVA 84-113-R
Hobet Mining & Construction Co.
KENT 86-115
Upright Mining, Inc.
WEVA
85-21-C
Local 5817, Dist. 17, UMWA v.
Monument Mining Corp. & Island Creek Coal Co.

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ADMINISTRATIVE LAW
02-03-87
02-03-87
02-03-87
02-04-87
02-04-87
02-0L~-87

02-0S-87

02-05-87
02-06-87
02-06-87
02-06-87
02,·09-87

02 10-87
02-10-87
02-10-87
02-12-87
02-13-87
02-13-87
02-13-87
02-17-87
02-19-87
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02-20-87
02-20-87
02-24-IP
02-24-87
02-25-87
02-25-87
02-26-87

02··27-·87

Jim Walter Resources, Inc.
Fife Rock Products Co., Inc.
Hydrocarbon Resources Company
PA-PA Coal Mining Company
U.S. Steel Mining Company, Inc.
Dan L. Thompson v. Gilbert Industrial
Mountaineer Coal Company
Benjamin Coal Company
Gerald C. Brunton v. Shawnee Coal Co.
Michael Brunson
Sec. Labor for Nicholas Ramirez v.
W-P Coal Compauy
. Sec. Labor for Andy Brackner v. Jim
Walter Resources, Inc.
Steve Collett v. Chaney Creek Coal Corp.
Marigold Docks, Inc.
Southern Ohio Coal Company
Union Oil Company of California
Solar Fuel Company, Inc.
Charles F. Rose v. Consolidation Coal Co.
Leonardo R. Lamas v. Duval Corporation
Elk Creek Coal Corporation
Roy W. Johnson v. Tri-Son Mining, Inc.

Western Fue 1 s-Utah, Inc.
Rushton Mining Compm1y
Concrete Products Company
Wilfred Bryant v. Dingess Mine Service
Sec. Labor for Roger Nelson v. U.S. Steel
Mining Co. , Iuc.
Maualapcin Mining Company
Staker Paving & Construction Co., Inc.
Danny Jobnrrnn v. Lr.nnar Mining Company
Valdez Creek Mining Company

SE
87-6
WEST 85-141-M
WEST 86-15-M

KENT 86-118
PENN 86-204
WEST 85-77-DM
KENT 85-202
PENN 86-164
LAKE 86-109-D
SE
86-40-M
WEVA 86-430-D
SE

86-69-D

KENT 8IJ-109-D
KENT 87-3
WEVA 86-190-R
WEST 86-i-M
PENN 86-288
WEVA 86-379-D
WEST 86-99-DM
VA
86-10
VA
86-8-·D
WEST 86-108-R
PENN 85-253-R
WEST 86-111-,M
WEVA 85-4 3-,D
WEVA 86-407-D
KENT 86-119·-R
WEST 86-120-M
KENT 87-68-D
WEST 85-179-M

Pg. 219
Pg. 221
Pg. 225
Pg. 237
Pg. 239
Pg. 246
Pg. 24 7
Pg. 248
Pg. 254

Pg. 257
Pg. 261
Pg. 263

Pg. 270
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Pg. 273

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319

Pg.
Pg.
Pg.
Pg.

320
325
332

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355
Pg. 362

Pg. 36 7
Pg. 368

FEBRUARY 1987
Review was granted in the following cases during the month of February:
Southern Ohio Coal Company v. Secretary of Labor, MSHA, Docket No.
WEVA 86-35-R, 86-48-R, 86-102. (Judge Fauver, December 31, 1986)
Secretary of Labor on behalf of Ronnie Beavers, et al. and UMWA v.
Kitt Energy Corporation, Docket No. WEVA 85-73-D-.-(Judge Maurer,
January 13, 1987)
Jim Walter Resources, Inc. v. Secretary of Labor, MSHA, Docket No.
SE 87-29-R. (Judge Weisberger, January 15, 1987)
Secretary of Labor v. Jim Walter Resources, Inc., Docket No. SE 86-83.
(Judge Broderick, January 21, 1987)
Secretary of Labor, MSHA v. Michael Brunson, Docket No. SE 86-40-M.
(Judge Broderick, February 6, 1987)
Review was denied in the followi
Secretary of Labor, MSHA on behalf of Yale Hennessee v. Alamo Cement
Company, Docket No. CENT 86-151-DM. (Judge Koutras, Order of December 30,
1986)

COMMISSION DECISIONS

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

February 3, 1987

SECRETARY OF LABOR,
MINE SAFE'IY AND HEALTH

ADMINISTRATION (MSHA),
on behalf of
JOSEPH G. DeLISIO, JR.
Docket No. PENN 86-83-n

v.

MATHIES COAL COMPANY

BEFORE:

Ford, Chairman; Rackley, 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), counsel
for the Secretary of Labor has requested Cor:imission-Administrative Law
Judge George A. Koutras to clarify the remedial relief awarded in his
decision of November 21, 1986'. 8 FHSHRC 1772 (November 1986) (ALJ). We
remand the matter to the judge to rule upon the merits of the Secretary's
request.
In his decision, Judge Koutras concluded that Mathies Coal Company
("Mathies") violated section 105(c) (1) of the Mine Act, 30 U.S.C.
§ 815(c)(l), hy unlawfully interfering with Joseph G. DeLisio's right as
a representative of miners to accompany federal inspectors during inspection of the mine. To remedy the violation, the judge ordererl Mathies
to permit DeLisio to-drive his private automobile to the mine portal
where inspections normally begin or, in the alternative, provide Detisio
with company transportation underground to that location.

193

Neither party sought review of the judge's decision by filing a
petition for discretionary review with the Commission under section
113(d)(l) (A)(i) of the Act. 30 U.S.C. § 823(d)(l)(A)(i). Rowever, on
December 22, 1986, the judge received from counsel for the Secretary a
document entitled "Request for Clarification." The Secretary asserted
that Mathies had refused DeLisio the use of his private automobile and
that neLisio cannot reach, in a timely manner, the portal where inspections begin by using company-provided underground transportation.
The Secretary requested the judge to clarify or amend the relief
previously ordered by requiring Mathies to provide DeLisio with
transportation that will allow him to reach in 20 minutes or less the
portal where the inspections begin.
Because he had issued his final decision in this matter under 29
C.F.R. § 2700.65, the judge forwarded the Secretary's request to the
Commission. By order dated December 30, 1986, we stayed the running of
the period within which the judge's decision would become a final order
of the Commission and directed Mathies to respond to the Secretary's
request. Mathies has filed a response and contends that the relief
ordered originally by the judge is "final and beyond review" and that
the Commission lacks jurisdiction to entertain the Secretary's request.
When the judge's decision was released, his .4urisdiction terminated
and any subsequent request for substantive review or modification must
be directed to the Commission, not the judge, 29 C.F.R. ~ 2700.65(c),
Contrary to Mathies' assertions, a .iudge 's decision does not hecome a
final order of the Commission until 40 days after it is issued (30
U.S.C. § 823(d) (l)) and we have jurisdiction to act upon the Secretary's
request.
We construe the Secretary 1 s Request for Clarification as constituting,
in effect, a timely petition for discretionary review of the relief
ordered by the judge. Gravely v. Ranger Fuel Co., 6 FMSHRC 799 n. 1
(April 1984). Under the anti-discrimination provisions of the Mine Act,
the Commission has broad authority, "as the Commission deems appropriate, 11
to fashion appropriate remedies to abate violations of section 105(c) (1).
See Brock v. Metric Constructors Inc., 766 F.2d 469, 472-73 (11th Cir.
1985). The purpose
to eradicate the existence and
effect of the unlawful discrimination to the greatest extent possible.
Where, as here, a party timely disputes the efficacy or meaning of the
remedy and requests that the judgment he clarified or amended, the
request may be entertained by the Commission. Cf. Fed. R. Civ. P. 59(e).

194

This m~tter is remanded to the judge to rule upon the reauest for
clarification. The judge may conduct such expedited proceedings as may
be necessary for purposes of his ruling. Any party dissatisfied with
the judge's further ruling may timely petition the Commission for review
of the decision as clarified or amended.

/

~ ~
<Le-~~t_4~/
Richard V. Backley, CommisSTOi1'rr
Q~~c/'_c (/ 4~L< /'
Joyce A. Doyle,

Comm~

~il;~er
1

'

·

-"--'~v

Lc__("~JA.,'--r. . _

L. Clair Nelson, Commissioner

195

Distributio~

Carl H. Hellerstedt, Jr., Esq.
Volk, Robertson, Frankovitch,
Anetakis & Hellerstedt
Three Gateway Center
Pittsburgh, Pennsylvania 15222
Linda M. Henry, Esq.
Office of the Solicitor
U.S. Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104
Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

196

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

February 10, 1987
SECRETARY OF LABOR 9
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JAMES CORBIN,
ROBERT CORBIN, and A. C. TAYLOR

v.

Docket No. KENT 84-255-D

SUGARTREE CORPORATION,
TERCO, INC., and RANDAL LAWSON

BEFORE:

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

BY THE COMMISSION:
In this discrimination case arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), the Secretary of
Labor has filed a Motion to Dismiss or Vacate Portion of Direction for
Review based on a Settlement Agreement submitted with the motion. For
the reasons set forth below, the Secretary's motion is granted.
The above-captioned matter is pending on review before the Commission.
The Secretary's motion is based on a settlement agreement that has been
reached among the Secretary, complainants James and Robert Corbin,
Terco, Inc., Randal Lawson, and other individuals associated with Terco.
Subsequent to the 1984 discharges of the Corbins and A.C. Taylor at
issue in the pending proceeding, the two Corbin complainants were reinstated (pursuant to a Commission judge's order of reinstatement) but
were discharged again by Terco in 1986. These latter discharges became
the subject of further discrimination complaints filed by the Secretary
on the Corbins' behalf. FMSHRC Docket Nos. KENT 86-131-D & 86-132-D.

197

As related in the Secretary's present motion, the parties in these
latter cases have entered into a settlement of the charges involved in
those cases. Their settlement involves expungement of references in the
respondents' employment records to the discharges of the Corbins (including
the 1984 discharges) and payment of $50,000 in damages by the respondents
to the Corbins. The Commission administrative law judge presiding over
these latter cases approved the parties' settlement and dismissed these
cases on January 6, 1987.
The settlement agreement is signed by the Corbins and, according to
the Secretary's motion, the $50,000 in damages "has be':!n paid." In the
settlement agreement, the Corbins waive any right to employment reinstatement with Terco. Further, the Secretary agrees to "forego any
enforcement action with regard to the award made on [the Corbins']
behalf" in the proceeding pending before the Commission, but to "take
all action necessary to enforce the award on behalf of A.C. Taylor," who
is not.a party to the settlement agreement. Based on the assertion that
the Corbins, Terco, Randal Lawson, and others associated with Terco have
now resolved their differences, the Secretary moves to vacate or dismiss
that portion of the Commission's direction for review in the pending
matter pertaining to the liability and remedial issues affecting the
Corbins.
In light of the above, and upon consideration of the Secretary's
motion, we grant the Secretary's motion. That portion of the Commission's
direction for review in the instant matter pertaining to liability and
personal remedy i13sues affecting the Corbins is hereby dismissed. We
emphasize that all liability issues (including the question of successorship) and all personal remedy issues insofar as they affect the remaining
complainant, A.C. Taylor, remain for decision.

198

For the foregoing reasons, the Secretary's motion is granted on the
terms speGified above.

~
z::::.i;.=~;;.._---Richard v. Backley, Commissioner

~fl_.~

Joyce A. Doyle, ComrniSSiOtle

Dis.tribution

Mary Griffin, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Carlos Morris, Esq.
Morris & Morris
P.O. Box 1008
Barbourville, Kentucky

40906

Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

199

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

February 10, 1987

HOBET MINING &
DOCKET NOS. WEVA 84-113-R

CONSTRUCTION COMPANY

WEVA 84-114-R
WEVA 84-209

v.

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

BEFORE:

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

BY THE COMMISSION:
This proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801
(1982)(the "Mine Act"). At issue
is whether Hobet Mining and Construction Co. ( 11 Hobet 11 ) violated
30 C.F.R. § 77.1303(h), a mandatory safety standard specifying
procedures to be taken when blasting. l/ Following a hearing, Commission Administrative Law Judge James A. Broderick found Hobet in
violation of the standard and assessed a civil penalty of $5,000. 7
FMSHRC 1807 (November 1985)(ALJ). For the reasons set forth below,
we conclude that the Secretary failed to prove the violation under the
standard, and we reverse the judge's decision.

!/

30 C.F.R. § 77.1303(h) provides:
Ample warning shall be given before blasts are
fired. All persons shall be cleared and removed
from the blasting area unless suitable blasting
shelters are provided to protect men endangered by
concussion or flyrock from blasting.

The term "blasting area" is defined in the mandatory safety standards
for surf ace coal mines and surf ace work areas of underground coal mines
as:

[T]he area near blasting operations in which
concussion or flying material can reasonably be
expected to cause injury.
30 C.F.R. § 77.2(f).

200

Hobet is the owner and operator of the No. 21 Surface Mine located
in Boone County, West Virginia. At the mine the company engages in a
mining process known as "mountaintop removal," in which successive
layers of materials that overlie three coal seams are fractured by
blasting and removed, thereby permitting extraction of the exposed
seams. The topmost layer of material is called the "overburden."
Material lying between the seams is called the "innerburden. 11 Blasting
the innerburden is called a "bottom shot."
On December 19, 1983, Hobet was bottom shooting to remove the
innerburden covering the deepest of the coal seams. The innerburden
consisted of sedimentary slate ranging in depths of up to 12 feet. The
drilling pattern consisted of 91 bore holes, 7-7/8 inches in diameter
and drilled on 14-foot centers. The holes ranged in depth from 3-1/2 to
12 feet.
A five-member crew, including certified blaster David Pauley, was
responsible for loading and detonating the explosives. Pauley selected
the blasting caps and determined the blasting pattern. Under Pauley's
direction, the crew placed blasting caps and primers in the bore holes,
then loaded the bore holes with pre-measured waterproof "wet bags" of an
ammonium nitrate fuel oil mixture C'ANFO"). Fifteen-pound bags were
loaded into the shorter bore holes, while either one or two 40-pound
bags were loaded into the deeper holes. The holes were stemmed with
drill cuttings and the blasting cap wires were connected in series to a
lead wire.

The acting shot foreman had personnel and equipment withdrawn to a
location behind a spoil bank at a distance in excess of 1,100 feet from
the blasting site. Blasting crew member Barton Lay ran out a spool of
lead wire a distance of 500 feet, spliced the end to a second spool and
ran it out another 500 feet. He then connected the lead wire to the
shooting battery. The shooting battery was positioned in front of the
bucket of a front-end loader, near an open space between two parked
vehicles. Pauley, Lay, and another crew member remained in the open
near the shooting battery in order to detonate and observe the blast.
After the shot was detonated, two rocks were observed coming from the
center of the blast. The three men sought cover between the parked
vehicles. Lay was struck by one of the rocks as it fell between the
trucks, approximately 1,115 feet from the blasting pit. Lay sustained
severe permanent injuries, including paralysis below his chest.
Following an investigation of the accident by the Iepartment of
Labor's Mine Safety and Health Administration, Hobet was issued a
withdrawal order under section 107(a) of the Mine Act and a citation
under section 104(a). The order and citation each allegen a violation
of section 77.1303(h) and each contained the following identical
description of the violation:
[A] practice prevailed of the blasting crew being
permitted to position themselves in the open
blasting area and not under suitable blasting
shelters to protect the miners endangered from flyrock. Also, the blasting area from which the

201

blasting was detonated, ranged in distances from
approximately 700 to 1,115 feet from the material to
be blasted and on numerous occasions the f lyrock
extended to the area where the blast was detonated
and beyond.
The order was terminated and the citation was abated after additional
training for blasting personnel was completed and a new blasting
procedure was implemented. The new blasting procedure provided that
blasts would be detonated and that all persons would be withdrawn at
least 1,500 feet from the shot.
The judge concluded that the validity of the withdrawal order was
dependent upon the existence of the alleged violation of section
77.1303(h). 7 FMSHRC at 1812-13. As to the violation, the judge
considered the crucial issue to be whether Hobet had a practice "of
blasting from an open area where flyrock could reasonably be expected to
cause injury." 7 FMSHRC at 1813. He stated that, "evidence of many
prior bottom shots throwing flyrock in excess of 1000 feet establishes a
blasting area -- that is, an area in which flying material could
reasonably be expected to cause injury -- in excess of 1000 feet." Id.
He further concluded that Hobet did not clear or remove all persons from
the blasting area before detonating shots. Id. The judge recognized
that the number of bore holes and the shot pattern may affect the size
and location of the blasting area and that these factors played some
part in determining where miners positioned themselves before
detonation. 7 FMSHRC at 1813-14. However, the judge stated that the
evidence clearly established that Hobet followed a practice of blasting
·from an area which flyrock frequently reached and that it did not have
or follow a plan that would ensure removal of miners from areas where
flyrock reasonably could be expected. 7 FMSHRC at 1814.
We hold that the judge erred in concluding that the Secretary
proved a violation of section 77.1303(h). On its face, section
77.1303(h) specifies alternative means for protecting miners from the
threat of concussion or flyrock caused by blasting: Either all persons
shall be cleared and removed from the blasting area or suitable blasting
shelters shall be provided. To establish a violation of the standard,
based on a failure to clear and remove all persons from the blasting
area, the Secretary must prove that an operator has failed to clear and
remove all persons from the "blasting area, 11 as that term is defined in
section 77.2(f). This requires the Secretary to establish the factors
that a reasonably prudent person familiar with mine Jlasting and the
protective purposes of the standard would have considered in making a
determination under all of the circumstances posed by the blast in
issue. The Secretary must then prove that the factors were not properly
considered or employed. See,~., Magma Copper Co. 8 FMSHRC 656, 660
(May 1986); U.S. Steel Corp., 6 FMSHRC 2908, 2910 (August 1984); U.S.
Steel Corp., 5 FMSHRC 3, 5 (January 1982); Alabama By-Products, 4 FMSHRC
2128, 2129 (December 1982).
An operator's pre-shot determination of what constitutes a
blasting area is based not only upon the results of prior shots, bu~
also depends upon a number of variables affecting the upcoming shot.

202

These variables may include, but are not limited to, the amount and type
of explosive used, the depth of the holes that constitute the shot, the
topography, and the expertise and prior experience of the blaster. See
Austin Powder Co., 5 FMSHRC 81, 123 (January 1983)(ALJ). 2/
Here, the Secretary failed to offer sufficiently specific evidence
regarding Hobet's lack of consideration of the various factors that
affected flyrock generation on December 19, 1983, or on previous
occasions when Hobet blasted. The MSHA inspector stated that in the
process of investigating the accident, he could not recall inquiring about or otherwise determining the composition of the material being
blasted, the depth and diameter of the bore holes, or the amount of the
explosives used, and the inspector did not ask Pauley whether he had
considered these factors. I Tr. 130-31, 137-38. The inspe~tor did
offer his opinion that the blasting area on December 19, 1983, was in
excess of 1,400 feet. I Tr. 130, 137, 139-L~O. The opinion was derived
from Pauley's statement during the accident investigation that the
furthest distance flyrock had traveled previously was in excess of 1,400
feet. I Tr. 139-40.
We conclude, however, that a determination of what constitutes a
blasting area which is based solely upon a statement of the furthest
past projection of flyrock is not sufficient to establish what
reasonably might be expected in a given situation without also
considering the appropriate variables that effect flyrock projection.
Hobet, on the other hand, offered evidence which supports a finding that
appropriate variables for determining the blasting area were considered
by Hobet's employees prior to blasting. Pauley testified that between
December 1979 and December 1983, he detonated approximately 1,880 shots
at Hobet's No. 21 Surface Mine. III Tr. 149. He also testified that in
his experience with shots like the one that caused the injury to Lay -that is, shots comprised of 91 bore holes, 7-7/8 inches in diameter on
14-foot centers, loaded with wet bags of ANFO and detonated with
electric blasting caps -- he had never seen flyrock travel over 1 1 000
feet. III Tr. 194. This testimony was not refuted. Considering the
above factors, and the composition of the innerburden which he was
shooting on December 19, 1983, Pauley testified that he expected flyrock
to travel 150 to 200 feet. III Tr. 194-95.

'l:_/
At the hearing, on both direct and cross-exanlination, the
inspector who issued the withdrawal order and citation identified
similar variables that he believed should be considered by an operator
in determining the bla~ting area. I Tr. 50-51, 126-27. Among the
factors he identified were the composition of the material being
blasted, the depth and diameter of the bore holes, the configuration of
the shot, the amount of explosives used, whether bulk ANFO or wet bags
were used, the delay pattern of the shot, and the amount of stemming in
the bore holes.

203

During oral argument before the Commission, counsel for the
Secretary stated that if Hobet had taken the factors identified above
into account prior to detonating individual shots and on that basis
determined the blasting area, Hobet "would have achieved compliance with
••• the regulation. 11 0.A. Tr. 24. Pauley's undisputed testimony
establishes that he did take those factors into consideration in determining the blasting area prior to detonating the shot on December 19,

1983.
Because the judge based his finding of a violation solely upon the
distance flyrock previously had traveled and because substantial
evidence is not present in the record that Hobet, in the December 19
blast or as a practice~ failed to clear and remove all persons from the
blasting area as required by 30 C.F.R. § 77.1303(h). the judge's
decision is reversed and the order and citation are vacated. }/

L. Clair Nelson, Commissioner

11

Given our disposition, we do not reach the question of whether
Hobet, as a practice, failed to provide suitable blasting shelters.

204

Distribution
Laura E. Beverage, Esq.
Jackson, Kelly, Holt & O'Farrell
1600 Laidley Tower
P.O. Box 553
Charleston, West Virginia 25322
Hary Griffin, Esq,
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Michael Holland, Esq.

UMWA
900 15th St., NW
Washington, D.C.

20005

Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

205

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

February 10, 1987

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

v.

Docket No. KENT 86-115

UPRIGHT MINING, INC.

BEFORE:

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

ORDER
BY THE COMMISSION:
In this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), Commission
Chief Administrative Law Judge Paul Merlin issued an Order of Default on
January 26, 1987, finding Upright Mining, Inc. ("Upright") in default
for failure to respond to a show cause order. The judge assessed a
civil penalty of $578. The record indicates, however, that shortly
before issuance of the default order Upright in fact had filed with the
Commission its response to the show cause order; due to certain unusual
circumstances this response was not brought to the judge's attention
until after issuance of the default order. We vacate the default order
and remand for further proceedings.
On February 24, 1986, an inspector of the Department of Labor's
Mine Safety and Health Administration ("MSHA11 ) issued to Upright a
citation alleging a violation of 30 C.F.R. § 70.208 for failure to
submit a required respirable dust sample. On March 11, 1986, Upright
received an imminent danger order and citation alleging a violation of
30 C.F.R. § 75.200 for inadequate roof support. Upon preliminary notification by MSHA of the civil penalties proposed for these alleged violations,
Upright filed a "Blue Card" request for a hearing before this independent Commission. On June 30, 1986, the Secretary of Labor filed a
Proposal for Assessment of Civil Penalty seeking a S578 penalty. Upright
did not file an answer to the penalty proposal.

206

On November 13, 1986, Judge Merlin issued an Order to Show Cause
directing Upright to file an answer to the penalty proposal within 30
days or be placed in default. Upright did not respond within the 30
days, and on January 16, 1987, the Secretary filed a Motion for Summary
Decision. On January 22, 1987, the Commission's Docket Office received
Upright's response to the show cause order. Due to circumstances created
by a local snow emergency, Upright's answer was not routed internally to
the judge's attention until the day after his default order was issued
on January 26, 1987.
The judge's jurisdiction in this matter terminated when his default
order was issued on January 26, 1987. 29 C.F.R. § 2700.6S(c). Under
the unusual circumstances presented, we regard Upright's response to the
show cause order as constituting, in effect, a timely request for review
of the judge's default order. Cf. Mohave Concrete & Materials, Inc., 8
FMSHRC 1646 (November 1986).
We recognize that Upright's response/answer was filed beyond the
limit set by the judge in his show cause order, and Upright has not
provided any explanation for its late filing. Nevertheless, in mitigation,
we assign weight to the fact that Upright filed a response before the
default order was issued. Cf. Sigler Mining Co., 3 FMSHRC 30 (January
198l)(attempt to comply at least partially with a judge's order may be a
mitigating factor in default situations). Inasmuch as Upright has not
explained its late filing, we are not prepared to rule summarily. In
fairness, however, we conclude that Upright should be afforded the
opportunity to explain its late filing to the judge, who shall determine
whether relief from default is warranted. Cf. Kelley Trucking Co., 8
FMSHRC 1867, 1869 (December 1986).
ti~e

207

For the foregoing reasons, the judge's default order is vacated and
the matter is remanded for proceedings consistent with this order.
Upright is reminded to serve the opposing party with copies of all its
correspondence and other filings in this matter. 29 C.F.R. § 2700.7.

-"'-Q-~
_ _4_.~
A.
Joyce

Doyle, Commissioner

Commissioner

Distribution
Doug Feuchtenberger, President
Upright Mining, Inc.
P.O. Box 70
Drift, Kentucky 41619
G, Elaine Smith~ Esq
Office of the Solicitor
U.S. Department of Labor
280 U.S. Courthouse
801 Broadway
Nashville, Tennessee 37203

Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., 6th Floor
Washington, D.C. 20006

208

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

February 27, 1987
LOCAL UNION NO. 5817,
DISTRICT 17, UNITED MINE
WORKERS O.F AMERICA (UMWA)

v.

..

Docket No.

W~'VA

85-21-C

MONUMENT MINING CORPORATION
and ISLAND CREEK COAL
COMPANY

BEFORE:

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

DECISION

BY:

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

This proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801
seg. (1982)(the "Mine Act"). The
question presented is whether the mine owner as well as its independent
contractor may be held liable for a compensation claim under section 111
of the Mine Act, 30 U.S.C. § 821, when the compensation claim arises
from a violation of a mandatory safety standard committed solely by its
independent contractor. Commission Administrative Law Judge George A.
Koutras concluded that only the contractor could be held liable in this
instance and dismissed the idled miners' compensation complaint against
the mine owner. 7 FMSHRC 1519 (September 1985)(ALJ). For the reasons
that follow, we affirm.
The parties waived a hearing and stipulated to the facts in this
case. Island Creek Coal Company ("Island Creek'') owns the No. 1 Surface
Mine located in Holden, West Virginia. At the time the miners were
ordered to be withdrawn from the mine, Monument Mining Corporation
("Monument"), an independent contractor, was party to a five-year
contract with Island Creek pursuant to which it was to operate the mine.
Under the contract, Monument had "full and complete c.ontrol of the work
to be performed" at the mine. The miners were employees of Monument.
Island Creek had no control over Monument's employees or its mining

209

operations, except as necessary to protect Island Creek's property and
to ensure conformity with its mining plans. !/
On August 1, 1984, two and one-half months before Monument unilaterally terminated its contract with Island Creek, an inspector of the
Department of Labor's Mine Safety and Health Administration ("MSHA 11 )
issued Monument an order of withdrawal, pursuant to section 104(d)(2) of
the Mine Act, 30 U.S.C. § 814(d)(2), withdrawing the miners from the pit
area of the No. 1 Surface Mine. The order alleged a violation of 30
C.F.R. § 77.1303(j), a mandatory safety standard requiring special
precautions when blasting is done at surface mining areas in close
proximity to underground operations.
Monument performed and wholly controlled the blasting that
resulted in the issuance of the withdrawal order. Island Creek had no
involvement in the planning or execution of the blasting. Monument
abated the violative condition in approximately 48 hours. As a result
of the withdrawal order, the affected miners were idled from 6:45 a.m.,
August 2, 1984, until 5:30 a.m., August 4, 1984. Monument filed a
notice of contest of the withdrawal order. Monument failed to
participate in that proceeding, and its notice of contest was dismissed.
Monument Mining Cor2., 7 FMSHRC 232 (February 1985)(ALJ).
On October 30, 1984, Local Union No. 5817, District 17, of the
United Mine Workers of America ("UMWA 11 or "Union")~ filed a complaint
against Monument seeking compensation, pursuant to section 111 of the
Mine Act, on behalf of the miners idled by the withdrawal order. 2/

ll

Island Creek retained the right under the contract "of entering
upon, examining and surveying [the] mine operations and inspecting,
examining and verifying all books, accounts~ statements, maps and plans
of [Monument] for the purpose of ascertaining the coal taken from [the
No. 1 Surface Mine, and] to determine the manner in which the mining
operations of [Monument] are being conducted ..• , 11
~I

Section 111 states in part:
[1] If a coal or other mine or area of such mine
is closed by an order issued under section [103] ...
section [104] ... or section [107] of this [Act],
all miners working during the shift when such order
was issued who are idled by such order shall be
entitled, regardless of the result of any review of
such order, to full compensation by the operator at
their regular rates of pay for the period they are
idled, but for not more than the balance of such
shift. [2] If such order is not terminated prior to
the next working shift, all miners on that shift who
are idled by such order shall be entitled to full
compensation by the operator at their regular rates
of pay for the period they are idled, but for not
more than four hours of such shift. [3] If a coal
or other mine or area of such mine is closed by an

210

Monument failed to answer the UMWA's complaint or to respond to its
interrogatories. On February 4. 1985, the judge issued a show cause
order directing the parties to show why Monument should not be held in
default and a summary decision in favor of the UMWA issued. Monument
did not respond to the judge's order. Also, by this time Monument had
ceased mining operations at the No. 1 Surface Mine.
Subsequent to the judge's show cause order, the UMWA learned that
the No. 1 Surface Mine was owned by Island Creek. Based on this
information, the Union moved to amend its complaint by adding Island
Creek as a respondent. The motion was granted. By agreement of the
UMWA and Island Creek, this proceeding was submitted to the judge on
stipulations and briefs.
In his decision, the judge :found that Island Creek "was in no way
responsible for the violative conditions which gave rise to the withdrawal order idling the miners." 7 FMSHRC at 1531. The judge held that
liability for compensating the idled miners attached to Monument, the
independent contractor responsible for the violation, and he dismissed
the UMWA 1 s complaint against Island Creek. Id. The judge relied on
Commission precedent to the effect that, in appropriate circumstances,
an independent contractor may be held solely liable for the violations
it commits. 7 FMSHRC at 1530-31. Finding Monument in default, the
judge concluded, "While it is unfortunate that Monument is no longer in
business, I find no basis for the UMWA's attempts to hold Island Creek
liable for the payment of these claims. 11 1 FMSHRC at 1531. Accordingly, the judge ordered Monument to pay the compensation claims filed
against it by the UMWA. Id. The Commission granted the UMWA's petition
for discretionary review, and we subsequently heard oral argument in
this matter.

on"review the UMWA argues that because a mine owner may be held
liable for the violative actions of its independent contractor, it also
may be held responsible for remedying those actions, including paying
compensation to miners idled as a result of a withdrawal order even
though the mine owner had no connection with the independent mining
operator. Arguing for joint and several liability in this case, the
Union candidly states, "[T]he purposes of the Act were best achieved
when the UMWA sought relief from the operator who had the deepest
Ii
We disagree. The plain meaning of section 111 of the Mine
order issued under section [104] ... or section
[ 107] of this [Act] for a failu,:e of the operator to
comply with
mandatory health or safety
standards, all miners who are idled due to such
order shall be fully compensated after all
interested parties are given an opportunity for a
public hearing, which shall be expedited in such
cases, and after such order is final, by the
operator for lost time at their regular rates of pay
for such time as the miners are idled by such
closing, or for one week, whichever is the lesser ...

any

30 U.S.C, § 821 (sentence numbers added).

211

Act, as well as the overall purpose of the Act, establish that the
"operator" responsible for the conditions or violations underlying the
section 111 claim is the sole operator responsible for compensating the
idled miners.
Section 111 of the Mine Act entitles miners idled by certain
withdrawal orders to compensation "by the operator." The third sentence
of section 111 links compensation to an idling withdrawal order issued
"for a failure of the operator to comply with any mandatory health or
safety standards." Consistent with our holdings in Local Union No. 781,
Dist. 17, UMWA v. Eastern Assoc. Coal Corp., 3 FMSHRC 1175, 1178 (May
1981) and Local Union 1889, Dist. 17, UMWA v. Westmoreland Coal Co., 8
FMSHRC 1317, 1324 (September 1986), we adhere to the principle that
determinations of compensation under section 111 must focus upon the
conduct of the operator responsible for the conditions of the mine. We
find no statutory basis upon which section 111 compensation should be
distinguished from the liability for the underlying health and safety
violation.
Moreover, section 2(c) of the Mine Act, 30 U.S.C. § 80l(c),
embodies congressional policy "to prevent death and serious physical
harm" from occurring in the nation's mines. This legislative purpose is
best effectuated if the operator responsible for a violation is also
held responsible for any compensation claim of its employees arising
from such violation. Thus, the result we reach here today furthers the
Act's policy by reinforcing that the independent contractor must make
every effort to create and maintain a hazard-free mine environment, and
insures that he will not be able to avoid the remedial or compensation
consequences of citations and orders by shifting them to the mine owner.
In the instant case Monument alone was cited for the underlying
violation. The UMWA has stipulated that Monument was solely responsible
for performing and controlling the blasting practices that led to the
issuance of the withdrawal order. The judge determined that the
Secretary properly charged Monument with the underlying violation. He
considered and applied the relevant case law regarding independent
contractor/owner liability and properly concluded that Monument alone
was responsible for the underlying violation giving rise to the subject
withdrawal order.

212

Accordingly, the judge's decision that Monument alone is liable
for the idled miners' section 111 compensation claim is affirmed.

213

Conunissioner Lastowka, dissenting:
The Commission and the courts of ten have been called upon to address
issues concerning a mine operator's liability for violations of the Mine
Act committed by independent contractors. The present case, however,
presents for the first time a question concerning a mine operator's
liability for compensation of miners prevented from working as a result
of a violation committed by its contractor. In my opinion my colleagues
reach an erroneous conclusion on the novel and important issue presented.
For the reasons that follow, I respectfully dissent from their affirmance
of the administrative law judge's decision. In my opinion, the judge's
decision should be reversed and the case remanded for further proceedings.
In section 111 of the Mine Act, 30 U.S.C. § 821, Congress mandated
that certain limited compensation be paid by mine operators to miners
idled from working due to withdrawal orders issued by MSHA inspectors
because of unsafe conditions at the mine. Section lll's grant of compensation to miners is but one component of the Mine Act's comprehensive
regulatory scheme ror achieving safe working conditions in the nation's
mines. As such, section 111 must be interpreted in harmony with the
other provisions of the Act with which it is interwoven. Rather than
harmonizing the interpretation of the various statutory provisions to
determine the outcome of the present case, the practical effect of the
majority decision is to relegate the statute to a role subservient to a
private contractual arrangement structured by the mine operator.
The starting point for resolving the issue before us must be the
recognition of the well-settled principle that as a matter of law under
the Mine Act an operator of a mine is liable, regardless of fault, for
violations of the Act committed by independent contractors hired by it.
This principle has been stated repeatedly and clearly. Harman Mining
Corp. v. FMSHRC 671 F.2d 79'4 (4th Cir. 1981); Cyprus Industrial
Minerals Co. v. FMSHRC, 664 F.2d 1116 (9th Cir. 1981); Old Ben Coal Co.,
1 FMSHRC 1480 (October 1979); aff'd, No. 79-2367, D.C. Cir. (December 9,
1980); Phillips Uranium Corp., 4 FMSHRC 549 (April 1982); Calvin Black
Enterprises, 7 FMSHRC 1151 (August 1985). See also Brock v. Cathedral
Bluffs Shale Oil Co., 796 F.2d 533, 535 (D.C. Cir. 1986). Cf. Bituminous
Coal Operators' Assoc., 547 F.2d 240 (4th Cir. 1977); Republic Steel Corp.,
l FMSHRC 5 (April 1979)(identical holdings under predecessor 1969 Coal
Act). Although the majority decision purports to be guided by the
decisions in Old Ben, Phillips Uranium and Calvin Black, it ignores the
primary and clear holding in those cases concerning the Act's liability
without fault structure. Instead, it focuses on the separate discussion
in those decisions addressing a very distinct issue, i.e., the scope of
Conunission review of the Secretary of Labor's actions in initiating

214

enforcement against mine operators for their contractors' violations. '!:_/
That issue, however, is not before us.
The underlying history in the present case reflects appropriate
enforcement action by the Secretary. Monument Mining was operating a
surface mine pursuant to a mining contract with Island Creek. Insofar
as the operation of the surface mine is concerned, it is indisputable
that: Monument was Island Creek's contractor; Monument was an "operator"
of the mine within the meaning of section 3(d) of the Act, 30 U.S.C.
§ 802(d); and, importantly, Island Creek also was an "operator" of the
mine within the meaning of section 3(d). In the course of its mining
activities Monument engaged in blasting in a manner that an MSHA inspector determined to be hazardous. The inspector took enforcement action
directly against Monument by issuing a closure order to Monument.
Because Monument was the operator to whom the order was issued, it
logically was the operator in the position to contest before the Commission the validity of the order pursuant to section 105(d), 30 U.S.C.
§ 815(d), and it did so.
In the meantime, a separate claim for compensation under section 111 of the Mine Act was filed with the Commission
on behalf of the miners who had been idled by the issuance of the withdrawal
order. This claim for compensation logically and appropriately named
Monument as respondent.
Up to this point the enforcement of the Act and the litigation
thereunder was proceeding in the normal fashion. At this juncture,
however, the litigation took an unusual and unexpected turn: Monument
unilaterally ceased operations and went out of business. This action by
Monument naturally affected the litigation before the Commission. In
the litigation initiated by Monument to challenge the Secretary's
withdrawal order, Monument defaulted. In the separate compensation
proceeding initiated by the miners, however, the miners responded to the
turn of events by seeking to add Island Creek as a respondent in its
capacity as operator of the No. 1 surface mine. The majority precludes
the attempt by the miners to add Island Creek as a respondent in the
compensation proceeding. The reasons offered for doing so are not
convincing.
My colleagues first state that "the 'operator' responsible for the
conditions or violations underlying the section 111 claim is the sole
operator responsible for compensating the idled miners." Slip op. at 4.
As to that issue it has been consistently recognized in the cited
cases, and I agree, that secretarial enforcement solely against mine
operators for violations committed by their independent contractors, to
the exclusion of the contractors themselves, is an inefficient manner of
achieving the Act's purposes and runs counter to the clear intent of
Congress to have contractors directly subjected to the Act's requirements.
Rather, direct enforcement against contractors who create hazardous
condiLons, whose employees are exposed to the hazards, and who are in
the best
tion to immediately secure abatement is the most effecient
and effective enforcement course. In fact, subsequent to Old Ben the
Secretary adopted a regulatory approach of enforcement directly against
contractors that create and control violative conditions, while expressly
reserving for use in appropriate circumstances his clear legal authority
to also pursue enforcement against mine operators for their contractors'
violations. 45 Fed. Reg. 44,494 (1980).

215

The case law set forth above makes clear, however, that an operator who
contracts out work at a mine site is jointly and severally responsible
and liable for violations of the Mine Act committed by its contractor.
~.,Harman Mining Corp., 671 F.2d at 797; Old Ben, 1 FMSHRC at 1483.
The majority further states that it "adhere[s] to the principle that
determinations of compensation under section 111 must focus upon the
conduct of the operator responsible for the conditions of the mine."
Slip op. at 4. The cited case law makes clear, however, that a mine
operator such as Island Creek is responsible for conditions at its mine
regardless of whether it contracts out work at the mine. ~., Cyprus
Industrial Minerals Co., 664 F.2d at 1119-20 citing Republic Steel Corp.,
1 FMSHRC 5, 11 (April 1979). Finally, the-majority states that the
administrative law judge' "considered and applied the relevant case law
regarding independent contractor/owner liability and properly concluded
that Monument alone was responsible for the underlying violation giving
rise to the subject withdrawal order." Slip op. at 4 (emphasis added).
As stated, however, the relevant case law in fact places joint and
several liability for the underlying violation on Island Creek. SimpLy
stated, the majority appears to mistakenly assume that there is only one
"operator" of a mine. The law is clear that where a contractor performs
work for a mine operator the contractor and the mine operator are both
"operators" of the mine within the meaning of the Act. Therefore, to
the extent that the majority's holding is based on the belief that under
the Mine Act Island Creek is not liable or responsible for the violation
of the Mine Act committed by its contractor it is fundamentally flawed.
Given the fact that Island Creek is an operator of the No. 1 Surface
Mine and given the resulting conclusion that as a matter of law it is
responsible for violations of the Mine Act committed by its contractors
at the mine, it accordingly has a residual liability under section 111
for compensation due miners as a result of the violation of the Act.
Section 111 contains no special definition of the term "operator" limiting
its application exclusively to independent contractors in situations
where the mine operator chooses to employ contractors to undertake
mining activities. Therefore, the same general principle of joint and
several liability previously discussed applies equally in the section
111 compensation context. The Commission recently has eschewed a
narrow, purpose-defeating interpretation of section 111. ~.,Local
Union 1889, District 17, UMWA v. Westmoreland Coal Co., 8 FHSHRC 1317,
1323-24 (September 1986). A similar approach is required here.
To the extent that the majority's conclusion may be influenced by
an underlying concern for a perceived "unfairness" in adding Island
Creek as a respondent at the present stage of the proceedings, those
concerns should be allayed by the record and certainly could be accommodated in a remand to the judge. The contract between Island Creek and
Monument reveals that Island Creek, as principal, carefully protected
its interests in structuring the terms of its contractual mining arrangement with Monument. Exhibit A. For example, the contract provides
that:
Contractor shall be solely responsible for and
shall fully idemnify a~d forever def end Owner
from and against any and all liability for any

216

C·itation or any withdrawal order issued pursuant
to the Federal Mine Safety & Health Act of 1977,
as the same may be amended or superceded, and
any state health and safety laws, and their
respective regulations and standards, relating
to the operations and work performed under this
agreement. Contractor shall be solely responsible
for abatement of the alleged violation or danger
and shall be solely liable for any civil.or
criminal penalty assessed pursuant to and as a
result of said citation or order, whether assessed
Contractor or Owner. In the event any
such penalty is assessed against and paid by Owner,
Contractor shall promptly reimburse Owner for said
, and Owner may deduct and withhold from
the payments due to contractor under this agreement
an amount sufficient to cover any penalties which
are assessed against Owner, and the costs, including
reasonable attorney's fees, for defending any actions
brought to assess and collect said penalties.
Exhibit A, Article 13. Furthermore, the contract required the giving of
90 days notice prior to termination of the contract by either party
(Article 9) and
required Monument to deposit $40,000.00 with Island
Creek in an escrow account. Exhibit A, Article 21. Thus, any monetary
damages suffered by Island Creek as a result of its legal liability for
its contractor's violations of the Mine Act were anticipated and provided
for. To the extent that Island Creek might be considered procedurally
harmed by Monument's default prior to a hearing on the merits of its
challenge to the validity of the withdrawal order giving rise to the
compensation claim, the Commission certainly possesses the discretion in
these circumstances to direct the administrative law judge to broaden
the scope "of the compensation hearing to entertain any available substantive
to the validity of the underlying withdrawal order
that
an award of compensation under section 111.
law j

For these reasons, I dissent from the affirmance of the administrative
's decision.
I would reverse and remand for further proceedings.

217

Distribution
Joyce Hanula, Legal Asst.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Marshall S. Peace, Esq.
Island Creek Corporation
2355 Harrodsburg Road
P.O. Box 11430
Lexington, Kentucky 40575
Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Connnission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

218

ADMINISTRATIVE LAW JUDGE DECISIONS

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

February 3, 1987

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HF.ALTH
ADMINISTRATION (MSHA},
Petitioner

Docket No. SF 87-6
A. C. No. 01-00328-03608

v.

Bessie Mine

JIM WALTER RESOURCES, INC.,
Respondent
OBCISION APPROVING SETTLEMENT
Before:

Judge Merlin

The parties have filed a joint motion to approve settlements
of the three violations involved in this case. The total of the
originally assessed penalties was $357. The total of the·
proposed settlements is $60.
Th~ three citations were issued because valid respirable
dust samples allegedly were not submitted by the operator.
In
their motion the parties state that the operator did, in fact,
submit the requisite number of samples, i.e., five samples from
each designated occupation. However, in each designated
occupation one sample of the five contained oversized particles
which could not be analyzed.
The Solicitor has orally advised
that the presence of an oversized particle cannot be attributed
to any negligence on the operator's part. Also, the miners here
wore respirators. Finally, once valid samples were submitted,
the average concentrations of respirable dust in all samples were
within acceptable limits.
In light of the foregoing, I conclude
the violations were not serious and the operator was not
negligent.

The history of previous violations with respect to this
medium-sized operator is average.
Payment of the proposed settlements will have no effect on the operator's ability to continue
in business.
The representations and recommendations of the parties are
accepted.

219

Accordingly, the motion to approve settlements is GRANTED
and the operator is ORDERED TO PAY $60 within 30 days of the date
of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
William Lawson, Fsq., Office of the Solicitor, u. s. Department
of Labor, Suite 201, 2015 Second ~venue North, Birmingham, AL
35203 (Certified Mail)
Harold D. Rice, Esq., Robert Stanley Morrow, Esq., Jim Walter
Resources, Inc., P. O. Box C-79, Birmingham, AL 35283
(Certified Mail)
H. Gerald Reynolds, Esq., Jim Walter Corporation, P. O. Box
22601, Tampa, FL 33622 (Certified Mail)
Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, N.W.,
Washington, DC 20006 (Certified Mail)
/gl

220

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

80204

FEB 3 1987

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HE~LTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. WEST 85-141-M
A.C. No. 42-00377-05502

v.

Fife Brigham Pit

FIFE ROCK PRODUCTS COMPANY,
INC.,

Respondent
DECISION AFTER REMAND
Appearances:

Margaret Miller, Esq., OffiQe of the Solicitqr,
U.S. Department of Labor, Denver, Colorado,
for Petitioner:
Mr. Clifford P. Woodland, Fife Rock Products
Company, Inc., Brigham City, Utah,
pro se.

Before:

Judge Morris

On October 14, 1986, the Commission remanded the above case
and directed that respondent be granted the opportunity to
present its position seeking a hearing after the entry of a default order in the case. Respondent reasserted its position and
the judge concluded that a hearing should be granted, (Order,
November 20, 1986).
After notice to the parties, a hearing on the merits took
place in Salt Lake City, Utah on January 6, 1987. The parties
waived their right to file post-trial briefs.
Issues
The issues a~e whether respondent violated the regulation,
if so, what penalty is appropriate.
Citation 2360673
§

This citation charges respondent with violating 30 C.F.R.
56.15007, which provides as follows:
Protective clothing or equipment and face shields,
or goggles shall be worn when welding, cutting or
working with molten metal.
"·

221

Sununary of the Evidence
Tyrone Goodspeed, an experienced MSHA inspector, conducted
an investigation at respondent's sand and gravel operation on
April 16, 1985 (Tr. 6, 7).
This was an average sized plant with three employees (Tr. 8).
The plant area consists of a set of screens, conveyor belts, a
control room and a dump point (Tr. 9>.
The inspector located plant manager Harper who was then
cutting holes in a screen with an oxygen acetylene torch (Tr. 10).
He was lying on his side and not wearing glasses or any protective equipment (Tr. 10, 12, 13). Harper explained that he had
forgotten about wearing the glasses CTr. 11). He had been in a
three foot space with the torch approximately 18 inches from his
face (Tr. 11, 12).
In the inspector's experience Harper could have been blinded
or incur a serious eye injury from molten material (Tr. 12). The
inspector believed that it was reasonably likely that an injury
could occur in these circumstances (Tr. 13, 15).

The inspector believed this was a condition involving
inuninent danger (Tr. 13, 14). Further, he believed that the
negligence was high (Tr. 14).
The inspector further indicated the citation was incorrectly
dated (Tr. 16-29, ~3). The inspector's notes and the form
indicating the operator had been advised of his rights to a
conference were received in evidence (Tr. 24).
Respondent offered in evidence its written narrative filed
with the Conunission (Tr. 35, 36; Ex. R3, R4>. Respondent does
not deny the violation but it conqemns the action of its employee
(Tr. 37).
Earl Harper, testifying for the operator, indicated he has
been employed by Fife Rock for 30 Years (Tr. 38). He is now
designated as the plant manager (Tr. 38, 46).
He normally uses glasses but on the day of the inspection he
was at the Eljay screen installing J-bolts by first punching
holes in the screen deck with a torch CTr. 39, 40, 67>. It was
his neglect in failing to take his glasses with him (Tr. 41).
The company, as well as the citation, stresses the use of glasses
(Tr. 41>. Harper realized that a potential for injury existed
here and he should have used safety equipment (Tr. 43, 45, 50).
Harper, who has been using a torch for 35 years, has no supervisory authority at the plant. There were two other operators at
the site (Tr. 47).

222

Notwithstanding the company rule to the contrary, Harper
admitted he had previously used a welding torch without wearing
glasses. But he had not done so since the citation was issued
CT,r. 51) •
Don Perry runs the front-end loader. He also assisted with
installing screens when necessary (Tr. 52-54). Perry didn't
think Harper was wearing any protective equipment that day CTr.
55). The company stresses safety <Tr. 56).
Ray Hardy feeds the crusher with a rubber tire dozer (Tr.
57). Hardy also assisted in installing the new screens (Tr. 57).
When he was called Harper replied that he'd be through in a
minute (Tr. 58, 59). Later, when they discussed the citation,
the inspector seemed upset with Harper (Tr. 61, 64).
The company always instructed the employees to cooperate
with MSHA (Tr. 61). Signs in the shop stress safety and
accidents (Tr. 62).
Discussion
The evidence establishes that the violation occurred.
Harper was seen by the inspector to be using a torch without
protective gear. Respondent's evidence confirms the violation.
The citation should be affirmed.
The principal issue concerns the assessment of a civil
penalty. The statutory penalty to assess a civil penalty is
containe~ in Section llO(i) of the Act which provides as follows:
Ci) The Commission shall have authority to assess all
civil penalties provided in this Act. In assessing civil
monetary penalties, the Commission shall consider the.
operator's history of previous violations, the appropriateness of such penalty to the size of the business
of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a
violation.
In considering the statutory criteria I find that the
computer printout received in evidence establishes that the
operator had three assessed violations in the two year period'
ending April 15, 1~85.. This is a considerable improvement over
the 11 violations assessed in the period before April 16, 1983.
Three violations indicate respondent's prior adverse history of
violations is below average. The operator with three employees
should be considered as small and the penalty hereafter assessed
appears appropriate in relation to the size of the bnsiness. The
operator was negligent since it failed to offer any persuasive

223

evidence that it enforced its safety rules relating to the use of
protective eyeglasses. There is no evidence relating to the
effect of the penalty on the ability of the operator to continue
in business.
But the obligation rests with the operator to
produce such evidence. Buffalo Mining Company, 2 IBMA 226,
(1973); Associated Drilling, Inc., 3 IBMA 164 (1974). The
gravity of the violation should be considered as high. The
employee could have been blinded by molten lead.
It is to the
operator's credit that it rapidly abated the violative condition.
On balance, I consider that a civil penalty of $250 is
appropriate.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portion of this decision, the following conclusions
of law are entered:

1.

The Commission has jurisdiction to decide this case.

2. Respondent violated 30 C.F.R. § 56.15007 and Citation
2360673 should be affirmed.
Based on the foregoing findings of fact and conclusions of
law I enter the following:

ORDER
1.

Citation 2360673 is affirmed.

2.

A civil penalty of $250 is assessed.

3o Respondent is ordered to pay to the Secretary the sum of
$250 within 40 days of the date of this decision.

Law Judge
Distribution~

Margaret A. Millerv Esq.v Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail)
Fife Rock Products Company, Inc., Mr. Clifford P. Woodland,
General Manager, P.O. Box 479, Brigham City, UT 84302 (Certified
Mail)
/bls

224

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

FEB 3 1987

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

CIVIL,PENALTY PROCEEDING

ADMINISTRATION (MSHA),
Petitioner

Docket No. WEST 86-15-M
A.C. No. 42-01789-05510

v.

Cottonwood #1 Mine

HYDROCl\RBON RESOURCES COMPANY, :

Respondent
DECISION

Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Robert K. Murray, Esq., Golden, Colorado,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges respondent with violating safety
regulations promulgated under the Federal Mine Safety and Health
Act, 30 u.s.c. § 801 et seq., (the Act).
A hearing on the merits took place on August 14, 1986 in
Salt Lake Cityv Utaho
The Secretary waived his right to file a post-trial brief
but respondent filed a brief.
Issues
The issues concern the appropriateness of the civil
penalties to be assessed"
Citation 2360975
This citation alleges respondent violated 30 C.F.R.
§ 57.19110 which provides as follows:
§ 57.19110
Overhead protection for shaft deepening work.
A substantial bulkhead or equivalent protection shall be
provided above persons at work deepening a shaft.

225

Summary of the Evidence
The c~tation and orders in contest here were issued as a
result of inspections that occurred on June 5, June 25, and June
26, 1985.
Ronald L. Beason, a metal and nonmetal mine inspector
experienced in mining, previously inspected respondent's
Cottonwood mine on December 28, 1982 (Tr. 20-22).
The inspection occurred because of a fatal accident at the
mine (Tr. 22).
At that time an imminent danger.order was issued
to Chad Evans, then vice president of Hydrocarbon Re.
sources.
The order alleged respondent violated§ 57.19110 in
failing to build and maintain substantial bulkheads (Tr. 23, 72).
The citation was later terminated. The bucket and the bulkhead
were used to protect the miners in the shaft (Tr. 24, 25, 86,
87).
This particular gilsonite mine had a 4 foot by 12 foot shaft
and it was about 700 feet deep (Tr. 27). The shaft consists of
the skip, manway and utility compartments. The shaft was not
perfectly vertical but it varied from foot to hanging wall (Tr.
27, 28, 68). There were no guides in its 700 foot length (Tr.
36, 69). This would increase the probability of dislodging a
rock (Tr. 36, 38).
The skip compartment is used to haul ore, men, and materials
in and out of the mine.
At the time of this inspection the
vacuum system was transporting the gilsonite.
In addition, they
were blasting the rock and mucking it into the skip (Tr. 29, 30).
Bulkheads are timbers placed five to ten feet from the
bottom of the shaft. They are directly over the miners' heads
when they are in the bottom of the shaft. The bulkheads prevent
the miners from being struck by falling rock (Tr. 30, 31). The
skip itself can dislodge loose and rocks from the foot or hanging
wall (Tr. 37, 38}.
On the June 5, 1985 inspection the first (and only) bulkhead
on the utility shaft was 354 feet from the shaft bottom (Tr. 31,
32, 82). The bulkhead was located approximately at the point
where the Green fatality occurred in 1982 (Tr. 32).
In addition
to the single bulkhead there were various other obstructions such
as pipes and lagging in the shaft (Tr. 84).
There was also a single bulkhead on the manway side 38 feet
above the shaft bottom. There were no bulkheads on the utility
side. Bulkheads are required for the skip compartment but there

226

were none. Lagging is required under the skip (Tr. 32, 34, 39>.
Lagging (3 x 8 timbers) is pulled across the bulkhead so the
miners ar~ protected while the skip travels to, and returns from,
the surface (Tr. 33). There was lagging in isolated places (Tr.
70>. The skip can be used as a bulkhead when situated at the
bottom but a bulkhead is required when the skip is at the surf ace
or descending or ascending (Tr. 33).
When the inspector arrived at the site the skip was on the
surface. In addition, there was no bulkhead at the bottom of the
shaft CTr. 33). There was nothing to stop the fall of any rocks
700 feet in the skip compartment and 350 feet in the utility
compartment (Tr. 34).
At the time of the inspection three shifts were working (Tr.

38).
When the inspector descended in the skip the miners were 10
to 12 feet (laterally) from the shaft bottom (Tr. 77). There
were not sinking shaft but they were preparing to mine into a
stope (Tr. 78, 81). The inspector questioned each miner and.he
learned that the day shift had completed mucking out the bottom
of the shaft. They stated that no bulkheads or timbers had been
removed (Tr. 79).
Inspector Beason measured and took notes. He indicated
there was no lagging in the skip compartment. His notes directly
contradict witness Jorgensen (Tr. 293-297; Ex. P3>.
Don E. Jorgensen, testifying for respondent, indicated there
were continuous glancing boards from the surface to the bottom of
the shaft (Tr. 212, 213). There were stulls and lagging every
five feet and 3 x B's on every landing (Tr. 213). Jorgensen
observed the inspector measure a hole at 13 inches but many
measured two or three inches and they were not covered with pipe
(Tr. 213, 214). On the manway side there were 14 foot ladders
with landings every 10 feet. The first bulkhead was 38 feet from
the bottom of the shaft (Tr. 215). When the June 5 citation was
issued for failure to use bulkheads they had flooring out to the
sides whenever they were working under the bucket for any length
of time. The witness had never seen the bottom of the Cottonwood
shaft without timbers or lagging. On the morning of June 5, 1985
the miners had started to mine gilsonite and they had moved out
of the shaft CTr. 216, 217).
Witness Jorgensen claimed bulkheads were used after the
first citation was issued. In fact, Hydrocarbon discharged
Royce, Grant and Dan Green for failing to use bulkheads when
sinking a shaft at another location (Tr. 217-221, 248, 249, 256,
257).
Before the June 5 inspection Jorgensen had talked to Royce
Green and his two boys urging them to be ~ure the bulkhead was
installed (Tr. 221, 222).

227

Discussion
Respondent's answer admits this violation. Further, the
parties have stipulated that the only issue concerns the appropriateness of the penalty (Tr. 16-18).
Accordingly, the citation should be affirmed.
Issues
relating to a civil penalty are discussed hereafter.
Citation 2359401
This citation alleges a violation of 30
which provides as follows:

C.~.R.

§

57.20032

Two-way communication equipment for underground operations.
Telephones or other two-way communication equipment with
instructions for their use shall be provided for communication from underground operations to the surface.
§

57.20032

Summary of the Evidence
During his inspection on June 25, 1985 inspector Beason was
directed by Ken Cooper, shift foreman, to the company telephone.
It was located on the bench in the hoist room under boxes, rags
and other materials (Tr. 39, 40, 43).
The inspector determined there was no communication with the
bottom of the mine (Tr. 40).
He found the telephone did not work
(Tr. 41). They then took it apart. The panels were rusty and
the plug-ins had rusted off.
The rust on the phone could not
have accumulated within four days.
In addition, the inspector
did not observe any damage to the box itself (Tr. 42).
Ken Cooper stated the phone had been removed from service
because of water in the shaft (Tr. 42>.
When Mr. Cooper showed the inspector the telephone he made
no claim that it had been damaged by blasting (Tr. 43).
On the following day company representatives, Don Jorgensen
and Ralph Musick, told the inspector that the phone was new (Tr.
43). It had just been installed, blasted off the wall and rusted
out after two days in a muckpot (Tr. 44). The inspector had the
underground water analyzed by MSHA and contacted MSA (Mine Safety
Appliance), the manufacturer. The company stated the neutral
acidity solution would not cause it to corrode (Tr. 44, 45,
106-115). The inspector's investigation caused him to conclude
that the phone was not four days old as claimed by the company
(Tr. 45).
Management also asserted their backup communication system
involved shutting off the ventilation. They did so five times

228

over 30 to 45 minutes. The men did, in fact, appear 45 minutes
later (Tr. 47). The problem with this system of communication is
that the miners below could not communicate to the surface CTr.
47).
In the inspector's opinion the lack of communication could
have aggravated any injury caused to a miner below ground (Tr.
48, 49). On a previous inspection (April 24) the company had a
problem with the phone (Tr. 102, 103). The inspector believed
the Pager 3 telephone in place on June 25th was the same
instrument in use on April 24 CTr. 104).
The inspector left the mine by signaling the hoistman for
the skip. But he did not consider such signals nor a signal
board to be effective communication because the hoistman could
not return the signal {Tr. 116, 117). In addition, a signal
board does not have an emergency code <Tr. 118).
Witness Don Jorgensen disagrees with inspector Beason
concerning the telephone. On May 30th the company ordered a new
phone. On June 5 he pointed out the new phone to the inspector
(Tr. 222, 223).
The new phone had apparently been dislodged in a Friday
night blast. As a result it was in the water until Monday
morning (Tr. 223).
The original phone, seen in April, was an old instrument
(Tr. 223). The witness produced an order for a telephone dated
May 30. The order was for a Pager 3 and a battery (Tr. 224).
The order bears a date stamp of May 31, 1985 and the witness
installed it on June 3 (Tr. 224; Ex. R6).
The company was cited for failing to have a phone on June 25
(Tr. 224, 225). The new phone had to be replaced because it was
corroded and rusted from being in the water and muck caused by
the Friday night blast (Tr. 226).
Royce Green didn't tell anyone about the phone and Jorgensen
didn't hear about it until Tuesday (Tr. 228).
On June 25 the company ordered a Pager and a 12 volt battery
CTr. 229; Ex. R7). The Pager 3 was an MSA phone (Tr. 230).
Witness Jorgensen indicated the signal code for operating
the hoist directs the hoistman to either stop, start or position
the conveyance at some predetermined location. Nine bells
indicates impending danger or accident (Tr. 230, 231). Turning
the air on and off also constitutes a signal system (Tr. 231).
The signal system is posted at every landing and known to the
miners (Tr. 231).

229

If the phone isn't available a person can talk down the vent
pipe or suction pipe (Tr. 232).
The mine had to replace an entire length of galvanized
suction pipe because the corrosion in the water had eaten
through it (Tr. 233).
Discussion
Respondent's answer and the stipulation of the parties
confirms that this violation occurred. Accordingly, the citation
should be affirmed.
The evidence in a large degree addresses the issue involving
the replacement to the telephone and the reason for its replacement. The regulation requires a two-way corrununication system.
It is clear that there was no effective two-way system. Accordingly, the violation existed. The Mine Act imposes absolute
liability on the operator. ASARCO, Incorporated, 8 FMSHRC 1632
{1986). Accordingly, the evidence relating to why the telephone
was in-operative and why it became that way is relevant only as
it relates to the imposition of a penalty.
On the credible
evidence I find that the telephone was inoperative only for a
short period of time.
In addition, it became rusted by lying in
the water after only two days in the muckpot. These elements
reduce the gravity as well as the operator's negligence. These
features are hereafter considered in assessing a penalty.
Respondent's evidence that they signaled the miners by
turning off the ventilation and by signalling the hoistman
totally fail to comply with the regulation. Section 30 C.F.R.
§ 57.20032 requires a two-way communication system.
Citation 2359512 and 2359405
These citations allege separate violations of 30 C.F.R.
§ 57.12025 which provides as follows:

All metal enclosing or encasing electrical circuits
shall be grounded or provided with equivalent protection.
This requirement does not apply to battery-operated
equipment.
Summary of the Evidence
On June 25, 1985, Mr. Beason inspected a 480 volt submersible metal water pump in the bottom of the shaft (Tr. 49,
50).
The previous evening Larry Day, an electrical inspector, had
checked the switch box containing 30 amp fuses and he determined
that the ground wire had been cut (Tr. 50, 51, 60, 61).

230

They had abated the citation by connecting the ground wire.
Company representatives also indicated they had conducted a
continuity test (Tr. 51). Such a test ~ill confirm whether there
is an adequate ground to a particular motor <Tr. 52). Based on
the company's representations the inspector terminated the
electrical citation (Tr. 52).

J

In continuing his inspection, the inspector observed that
the water pump had been spliced and the ground cut out <Tr. 53;
Ex. P2). At the inspector's request the splice was cut from the
line.
It was presented as an exhibit at the hearing (Tr. 53~ Ex.
P2). The cable had a four wire splice to the cable. After being
cut off only three wires led to the pump (Tr. 53, 54). The
ground wire terminated in the splice was the same ground wire
inspector Day had required to be connected at the panel box on
the surface (Tr. 55). A continuity test would have determined
that the pump was ungrounded.
The pump was ordinarily used to
pump out the bottom of the shaft (Tr. 55, 56, 130, 133).
Failure to ground this equipment or to provide equivalent
protection presents a shocking hazard (Tr. 56, 60-62).
In
addition, a person could have touched the exposed electrical
conductor (Tr. 58).
In the inspector's opinion respondent's management was very
neglectful since they resisted the bulkheads, the grounding and
the telephone (Tr. 63-65, 138).
The company had received prior citations for failure to
ground (Tr. 65). Respondent extensively examined the inspector
concerning the electrical violation (Tr. 119-129).
Cross examination further established that on June 26, 1985
respondent was issued a citation because the company failed to
notify MSHA of changes in the partnership and the operator (Tr.
67, 68).
Larry G. Day, an electrical specialist for MSHA, inspected
respondent's Cottonwood mine on June 25, 1985 (Tr. 163-167). He
determined, with a tick tracer, that the metal water pump in the
shaft bottom was not grounded nor was there equivalent protection
(Tr. 167, 169). The grounding wire connected to the switch box
on the surface had been cut (Tr. 168, 168A, 177, 192). An
ungrounded pump submerged in water creates a very hazardous
condition (Tr. 170-179).
Submersing the pump in water would be
no protection at all (Tr. 179).
The panel contained 30 amp fuses.
could kill a person (Tr. 173).

Exposure to a milliamp

The inspector considered that the operator's negligence was
high since someone ignored a grounding conductor (Tr. 177, 178>.

231

Cross examination indicated that the inspector's experience
generally involved 480 volt three phase AC current {Tr. 181). He
further testified extensively in connection with Y and delta
connections, impedence, grounding and continuity tests (Tr.
181-190).
Day's citation was issued because of the condition at the
surface.
Beason's citation related to the condition at the other
end of the pump {Tr. 192, 193). The number of breaks in the wire
would not affect this condition <Tr. 193, 194, 196).
Witness Jorgensen testified for respondent and indicated
that the Berkeley pump was installed after the partnership with
Thyssen. The pump was used when the mine filled with water (Tr.
234-236).
They did not pump when there were miners in the mine
(Tr. 235).
After it was cited the company obtained a letter from the
sales company (Tr. 238-240; Ex. RS).
Jorgensen purchased the three wire cable and had it installed by an electrician <T+. 245).
Jorgensen suspected that Jerry Schrup cut the grounding wire
on the pump (Tr. 247, 248).
Discussion
Respondent's answer questions whether this violation
occurred but its post-trial brief asserts that the mineralized
ground water provided a suitable ground.
In addition, no miner
was ever exposed to any danger.
Further, the two citations are
duplicative since they both involve the same piece of equipment.
I credit inspector Day's expertise to the effect that an
ungrounded pump submerged in water constitutes no protection.
Further, it is not a requirement of the regulation that miners
be exposed to the violative condition. Finally, respondent's
im of duplication is rejected. Two separate violative conditions existed.
The fact that it involved the same piece of
equipment is a factor to be considered in assessing a penalty.
The citations should be affirmed.
Respondent's Evidence as
to new Partnership
Don E. Jorgensen was hired as a miner by respondent
Hydrocarbon Resources on September 1, 1983.
In January 1984 he
was promoted to mine superintendent (Tr. 199, 200).
His
responsibilities included production and safety {Tr. 201).
He
initially reported to Chad Evans, the mine manager (Tr. 207).
Prior to March 1985 a partnership consisting of Miocene

232

Resources, Hydrocarbon Mining and Ken Wooley operated the mine.
On March 15, 1985 that partnership was terminated and a new
partnership was formed consisting of Thyssen Mining Construction,
Inc. and Hydrocarbon Mining. These partne~s operated the mine
doing business as Hydrocarbon Resources. Thyssen was the
operating partner. Hydrocarbon Mining Company was a partner in
both ventures (Tr. 201-206).
Jorgensen was aware that a citation was issued as a result
of the Green fatality (Tr. 203). After he became superintendent
he learned why the citation was issued (Tr. 204).
John Edwin McNeeley has been vice chairman of the managing
board of Thyssen Mining Construction, Inc., since November 7,
1985. Thyssen, as managing partner, controls 51 percent of
Hydrocarbon Resources (Tr.· 258, 1259, 273).
McNeeley was responsible for operating the Wild Horse and
Midas mines (Tr. 261). Operations were abandoned at the
Cottonwood mine in the fall of 1985 (Tr. 261). All other
employees of Hydrocarbon Resources were laid off in May 1985 (Tr.
261) •

McNeeley discharged Royce, Danny and Grant Green in November
for failing to use a bulkhead (Tr. 2262-266)" The company has
set a standard of strict compliance with MSHA regulations (Tr.
264). Subsequently the Greens filed discrimination complaints
against the company. The complaints were unrelated to the use of
bulkheads (Tr. 261-268).
Thyssen Mining Construction, Inc., is a wholly owned
subsidiary of Thyssen Mining Construction of Meulheim, West
Germany. The principal company sinks shafts, does contract
mining and production mining (Tr. 269). Thyssen is one of the
largest construction companies in West Germany (Tr. 270). ··. Until
it was terminated the members of the managing board of Hyd~
carbon Resources were Klaus Wagener, Kenneth Wooley and Chad
Evans CTr. 270).
Lyle D. Weiss, secretary-treasurer of Thyssen Mining Construction, Inc., testified that he is in charge of all financial
and administrative matters (Tr. 273, 274).
The partnership agreement between Hydrocarbon Mining, Inc.,
and Thyssen Mining and Construction, Inc., was executed March 15,
1985 {Tr. 274; Ex. R8). Other than in evaluating the project
Thyssen was not involved in the operations before March 15, 1985
(Tr. 275). The partnership was designated as Hydrocarbon
Resources Company, CHRC) CTr. 276: Ex. R8). The parties further
agreed that HRC was identical to a joint venture between Hydrocarbon and a company called Miocene Resources, Inc. (Tr. 276).

233

The vein has ceased to exist at this site at a minable width
(Tr. 280, 28l)e For the nine months ending December 31, 1985 the
partnership loss was $1,050,000. A penalty in this case would
not help the situation (Tr. 281).
The witness further indicated that 58,268 man hours were
involved and 1,830 tons were mined between March 15, 1985 and
December 31, 1985 (Tr. 282, 283; Ex. R9). The man hours included
approximately 9,000 hours of construction work (Tr. 284).
The witness had prepared and suggested a penalty assessment
based on the Secretary's regulations (Tr. 285-291; Ex. RlO, Rll).
Thyssen is financially sound and a $9,000 penalty would not
impair its ability to continue in business (Tr. 291).
Civil Penalites
The Secretary seeks certain penalties for the violations
herein. The proposed penalties, as originally assessed, were as
follows:
Citation No.
2360975
2359401
2359512
2359405

Bulkheads
telephone
water pump
cut ground wire

Proposed
$1,000.00
750.00
750.00
500.00

Prior to the hearing the Secretary sought and was granted
leave to amend the bulkhead violation to a proposed penalty of
$9,000.
Discussion
As a threshold matter respondent concedes that the Secretary
may modify his penalty assessment at any time during a penalty
proceeding but it asserts that the Secretary's action, without
new facts¥ constitute harassment and intimidation especially
after respondent choose to challenge the original proposed
assessment.
Respondent's arguments are rejected.
It is well settled
that the assessment of penalties rests solely with the Commission
and are not based on th~ Secretary 1 s proposals.
The Commission
may raise, lower or affirm the original assessment.
Sellerburg
Stone Company v. FSMHRC, 736 F.2d 1147 7th Cir. (1984); Shamrock
Coal Company, l FMSHRC 469 (1979); Consolidation Coal Company,
2 FMSHRC 3 (1980).

For the foregoing reasons respondent's threshold objections
are denied.

234

Accordingly, it is now necessary to consider the statutory
criteria relating to the assessment of such penalties. Section
llO(i) of the Act, now 30 u.s.c. § 820(i), provides as follows:
The Commission shall have authority to assess all civil
penalties provided in this Act.
In assessing civil
monetary penalties, the Commission shall consider the
operator's history of previous violations, the appropriateness of such penalty to the size of the business
of the operator charged, whether the operator was
negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification
of a violation.
The bulkhead violation (Citation 2360975) involves evidence
relating to respondent's negligence and gravity.
In 1982 an
.identical bulkhead citation was issued against respondent after a
fatality occurred.
In the instant case the judge took official
notice of the prior case entitled Hydrocarbon Resources, Inc., 8
FMSHRC 354 (1968), (Order, January 9, 1987).
I agree with respondent that a change in partners creates a
new legal entity. Fritz et al v. Commissioner of Internal
Revenue, 76 F.2d 460 (1935). I further find from the testimony
and the exhibits that when Thyssen Mining Construction, Inc., became the managing and controlling partner on March 15, 1985 a new
and entirely legitmate partnership was formed. The transition was in no way a sham arrangement such as discussed by the
Commission in Lonnie Jones v. D & R Contractors, 8 FMSHRC 1045,
1054 (1986).

However, the new partnership involving Thyssen Mining is not
totally insulated from the prior partnership. This is so because
Chad Evans was the mine manager when the bulkhead violatio~
occurred in 1982 (Tr. 157). Subsequently, he was one of the
three members on the managing board of the Thyssen partnership
(Tr. 270) o
The knowledge of supervisory personnel has generally been
imputed to an operator under an agency concept Southern Ohio Coal
Company, 4 FMSHRC 1459 (1982); Nacco Mining Company, 3 FMSHRC 849
(1981).
Accordingly, respondent should have known of the 1982
fatality resulting from the bulkhead violation. This knowledge
causes me to conclude that respondent's negligence is high and
the gravity of the violation is apparent since the violative
condition can and did cause a fatality in 1982.
Respondent's post-trial brief asserts for a number of
reasons that the bulkhead citation should not have been issued.
The credible evidence here clearly establishes that the four
violations occurred.
low.

The gravity of Citation 2359401 (communication system) is
On the other hand, ungrounded equipment such as in

235

Citations 2359512 and 2359405 presents the possibility of
electrocution. The gravity in such situations should be considered as high.
Since respondent is a separate legal entity it has no prior
adverse history.
The testimony establishes that a civil penalty will not
affect the operator's ability to continue in business.
Respondent's rapid abatement of all of the violations is to
its credit.
On balance, I consider that the penalties set forth in order
of this decision are appropriate.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portion of this decision, the following conclusions
of law are entered:
1.

The Commission has jurisdiction to decide this case.

2.

Penalties should be assessed for the violations herein.

Based on the foregoing findings of fact and conclusions of
law I enter the following:
ORDER

The following penalties are assessed for the violations
herein:
Citation
Citation
Citation
Citation

2360975
2359401
2359512
2359405

{bulkheads)
(communication system)
(water pump)
(ungrounded wire)

$3,000
200
500
500

Law Judge
Distribution:
James Barkley, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Robert K. Murray, Esq., Hydrocarbon Resources, Inc., 14618
Avenue, Suite 105, Golden, CO 80401 (Certified Mail)

/bls

236

w. 6th

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

FEB 4 1987

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 86-118
A.C. No. 15-15229-03503

v.

Pa Pa Mine

PA-PA COAL MINING COMPANY,
Respondent
DECISION
Before:
Judge Fauver
By notice issued on December 19, 1986, this civil penalty
case was set for hearing on February 10, 1987, at Huntington,
West Virginia. Prehearing reports were due from the parties
by January 27, 1987. Counsel for the Secretary of Labor
submitted a prehearing report by telephone on January 23,
1987, reporting that Mr. Jack Owens, President of the Respondent,
informed counsel for the Secretary that Respondent will not
appear at the hearing on February 10, 1987. This statement in
behalf of Respondent is deemed to be a withdrawal and waiver of
Respondent's hearing request.
ORDER
1. The allegations in Petitioner's Citation No. 2303103
are deemed to be true and hereby incorpora
as Findings of
Fact and Conclusions of Law herein.
2.
Respondent is ASSESSED a civil penalty of $650.00
for the violation alleged in Citation No. 2303103 and found
herein.
3. Respondent shall pay the above civil penalty of $650.00
with 30 days of this Decision.
4. The hearing scheduled for February 10, 1987, is
CANCELLED.

4/~~VVLWilliam Fauver
Administrative Law Judge
Distribution:

237

Mary Sue Ray, Esq., U.S. Department of Labor, Office of the
Solicitor, 801 Broadway, Rm. 280, Nashville, TN 37203
(Certified Mail)
Jackie Owens, President Pa Pa Coal Mining Co., Inc., 3357,
Pikeville, KY 41501 (Certified Maii)
kg

238

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

22041

FEB 4 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 86-204
A.C. No. 35 05018-03614

v.
U.S. STEEL MINING COMPANY,
INC.,
Respondent
U.S. STEEL MINING COMPANY,
INC.,
Contestant

CONTEs·r PROCEEDING
Docket No. PENN 86-180-R
Citation No. 2678490; 4/28/86

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

Cumberland Mine

DECISION
Appearances:

Susan M. Jordan, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania for the Secretary of Labor;
Billy M. Tennant, Esq., Pittsburgh,
Pennsylvania for U.S. Steel Mining Company,
Inc.

Before:

Judge Melick

These consolidated cases are before me under section
105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et~' the "Act," to challenge a citation
issued by the Secretary of Labor on April 28, 1986, to U.S.
St2el Mining Company Inc., (U.S. Steel) and for review of
civil penalties proposed by the Secretary for the violation
alleged therein.
The issues before me are whether U.S. Steel
violated the regulatory standard as alleged and if so whether
that violation was of such a nature as could have signif icantly and substantially contributed to the cause and effect
of a coal or other mine safety or health hazard, i.e. whether
the violation was "significant and substantial." -II the
violation is established it will also be necessary to determine the appropriate civil penalty to be assessed in accordance with the criteria set forth in section llOCi) of the
Act.

239

The citation at bar, No. 2678490P alleges a nsignificant
and substantial" violation of the standard at 30 C.F.R. §
75.1725(a) and charges as follows:
The belt tail roller that was located at the 5 Face
South No. 2 in-line drive was not maintained in a
safe operating condition on the afternoon shift of
January 28, 1986 and midnight January 29, 1986 due
to the bearings on the subject roller was [sic]
running hot and smoking at one point.
The cited standard provides that "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."
The evidence shows that as Anthony Shiner, a General
Inside Laborer at the Cumberland Mine, was cleaning along the
subject beltline on his afternoon shift he heard a loud
thrashing noise, vibration and the sound of metal grinding in
the bearings of the tail roller.
Shiner also saw smoke
coming from the tail roller and the smoke filled "half the
entry." He immediately shut down the belt and called the
afternoon shift Foreman Ed Grim to report the problem.~/
Mechanic Douglas Carpenter and his Supervisor, Jerry
Seaton, subsequently examined the problem bearing, cooled it
with water and greased it.
Shiner then rigged a hose to maintain a cooling water spray onto the subject bearing, and the
belt was restarted. Carpenter and Seaton watched the belt

17 While Shiner testified at hearing that these problems

Jeveloped on the afternoon shift of January 27, 1986 and
continued through the afternoon shift on January 28, I
believe for the reasons noted below that this recollection
was erroneous.
Firstu MSHA Inspector James Conrad testified
that he interviewed Shiner on February 12f 1986r shortly
after the incident in question, and Shiner then told him that
the problem had begun on his afternoon shift on January 28.
Second, the "section 103(g)" complaint filed with MSHA by the
Union Safety Committee (Court Exhibit 1) and the citation at
bar prepared by Inspector Conrad both contain allegations
that the problem began on the afternoon shift of January 28
and continued only through the midnight shift of January 29,
1986. Third, Shiner's testimony is also inconsistent with
the testimony of government witness Clyde King and U.S. Steel
witnesses Mark Skiles (Mine Superintendant), Larry Seaton
(Assistant Maintenance Foreman), Charles Grim (the afternoon
shift Mine Foreman), Ronald Stull (afternoon shift Belt
Foreman), Eugene Barno (third shift Mine Foreman), and Dan
Laurie (afternoon shift Belt Cleaner Foreman).

240

run for an hour andu since the bearing was holding up "okay,
they left. Seaton nevertheless told Shiner to maintain a
watch on the suspect bearing for the rest of his shift, to
keep grease in it and to maintain the cooling water spray.
The ·bearing continued to operate normally for the remainder
of Shiner's shift until Harry Siebold took over the watch
around 10:30 p.m. on the 28th.

11

According to Shiner the area surrounding the suspect
bearing was kept clear of loose coal and coal dust, was rock
dusted and was wet from the hose spray. Additional bags of
rock dust were available nearby if needed. The evidence also
shows that an emergency pull cord ran along the entire belt
line and could be reached by anyone nearby to cut off power
to the belt within 15 to 30 seconds. There was also a fire
protection system that would deluge the belt when triggered
by a heat sensor.
A chemical fire extinguisher and a mine
telephone were also nearby.
Beltman ,Jimmy Perani was assigned to stand watch over
the subject bearing on the midnight shift (11:00 p.m. to
7:00 a.m.) beginning January 28. Harry Siebold was standing
watch when he took over. The belt continued running during
Perani's shift with water spraying on the subject bearing.
Perani observed however that the bearing was generating heat
and would occasionally make "loud screaming noises." In
addition according to Perani the bearing would not hold
grease. Perani testified that no one relieved him at the end
of the shift.~/
Gen~ral Inside Laborer Clyde King testifed that his
Foreman, Gene Barno, told him to watch the subject bearing on
midnight shift of January 29. King was told to leave the
water running over the bearing and was told that he would be
el
at quitting time"
King relieved someone else

2/

Perani was confused at hearing as to which particular

ihift or shifts he stood watch over the subject bearing and
was unclear whether he first stood watch on midnight of
January 27 or midnight
January 28.
According to the
testimony of Anthony Shiner
was Harry Siebold who took
over his watch on the bearing at around 10:30 p.m. the
evening of January 270
Although Siebold did not testify in
these proceedings it appears that Siebold took over the watch
from Shiner at about 10:30 on the evening of January 28, (see
footnote 1) and Perani then took over from Siebold at around
11:00 p.m. the same night.
Indeed Perani recalls that he did

relieve Siebold on January 280 Perani's testimony at hearing
concerning "loud screaming noises" emanating from the bearing
is also in contrast to his statement to Inspector Conrad that
he heard "squeeking" noises.

241

(apparently Perani) who had been standing watch. According to
tnspector Conrad, King stated in an interview on February 12,
1986, that he had been assigned at 6:00 a.m. on January 29, to
relieve the person then standing watch and remained to the end
of his shift at 7:45 a.m.
In light of this statement to Conrad
given closer to the time of the event I find this version of
events to be the more credible. King testified without contradiction however that when he left his assigned position at the
end of his shift no one relieved him.
It is therefore undisputed
that the suspect roller was thus left unattended while the belt
continued to operate.
King also observed that the maintenance foreman examined
the suspect bearing during his shift and admitted that it was
"bad" and would have to be replaced. King observed that when
the water spray was removed the bearing would get hot and
sparks would appear.
So long as the water spray was maintained however there were no sparks and nothing was "abnormal."
Mine Manager Weir acknowledged to Inspector Conrad on
February 12, 1986, that the bearings had subsequently been
removed and were found to be scarred and flat.
Conrad
opined, based on that statement, that the bearings had been
running in a hazardous condition. Conrad considered the
violation to be "significant and substantial" in that he felt
that fire and smoke could have been generated by the defective bearings thereby creating carbon dioxide, fire and smoke
inhalation problems.
Indeed Conrad opined that if the
bearing began smoking heavily it would be reasonably likely
to overcome the miner standing watch before he could stop the
smoke. He opined that it was also reasonably likely for the
smoke to be taken inby to miners working at the longwall
face.
Conrad also believed that fire was reasonably likely
even though the hose was spraying on the bearing if there was
coal spillage up to the level of the bearing.
In addition
during the time that the bearing was left unattended he felt
that a rock could displace the water flow thereby creating
the noted hazardous conditions. Conrad also observed that
bearings operating in the noted condition could disintegrate
at any time causing the tail roller to come loose with hot
metal splattering all over. Conrad found the operator's
negligence to be moderate because he felt that the operator
knew of the violative condition but tried to remedy the
violation by stationing an observer and hosing-down the
defective bearing.
Underground mine superintendent Mark Skiles
arned of
the problem bearing through a phone call from his shift clerk
around 9:30 p.m. on January 28. According to Skiles, failed
bearings are not unusµal and it is standard procedure to cool
them down and pump them full of grease until they can be

242

replaced. He acknowledged that if the bearing was running
hot it could ignite loose combustible material or coal dust
if it was in contact. It was his understanding however that
in this case the bearing was not in contact with any flammables and indeed the tail piece was located in a puddle of
water. Skiles acknowledged that his opinion concerning the
nonhazardous nature of the problem bearing was based on his
assumption that someone was always in attendance to watch the
roller and shut down the belt line.
When Skiles arrived at the mine at 8:00 a.m. on
January 29, he was told that the roller was "running cool but
failing." He then directed that the bearing be changed and
it was in fact changed sometime between 10:00 a.m. and
2:00 p.m. on that day. Skiles did not immediately replace
the bearing but wanted to keep the belt running until the
maintenance shift scheduled for the coming weekend. The
bearing was changed earlier because "everything was in place"
and it was "obvious that we were not going to make it to the
weekend."
Assistant Maintenance Foreman Jerry Seaton learned of
the problem bearing around 4:00 p.m. on January 28, 1986. He
and Carpenter pumped it full of grease and Shiner was directed
to stay in the area and apply grease every 20 minutes. A 3/4
inch hose was also set to spray water on it. According to
Seaton the area surrounding the subject bearing was damp and
well rock dusted. There were additional bags of rock dust
within 20 to 30 feet and a "pager" within 30 feet. There were
no "squeeking noises" or sparks emanating from the bearing
and Seaton found the condition not to be unsafe.
Afternoon Mine Foreman Charles Grim became aware of the
subject bearing between 3:00 and 3:30 p.m. on January 28.
Grim also thought that the condition was not unsafe because
someone was in attendance to shut the belt down if necessary,
to keep it greased, and to maintain a cooling water spray.
He also observed that the area was wet and rock dusted.
Ronald Stull, the afternoon shift Belt Foreman, assigned
Harry Siebold to replace Shiner at the end of his shift on
January 28. Stull acknowledged that if the bearing had been
11
sparking 11 he would have shut the belt down because it would
have been a fire hazard. He did not recall that anyone told
him about sparks coming out of the bearing.
Eugene Barno the third shift Mine Foreman, was told that
grease was being pumped into the subject bearing every 20
minutes, that it was holding grease, and that it was being
cooled down with water. He visited the problem bearing
during his shift when he brought Perani to take over the
watch. Barno touched the bearing and found it to be "room
temperature." It was also then holding grease. He

243

instructed Perani to shut the belt down if it became hot.
Perani was still watching the bearing when Barno returned
around 6:00 a.m. bringing his relief-man Clyde King. Perani
told him there had been no problems. Barno testified that
the belt continued to run when he left his shift at 8:00 a.m.
and he did not know who shut down the belt thereafter or who
relieved Clyde King to watch the bearing on the next shift.
Within the above framework of evidence it is clear that
the tail roller on the cited belt was not being "maintained
in safe operating condition" as required by the cited
standard. Based on the undisputed evidence alone it is clear
that the bearings on both sides of the tail roller shaft were
being operated for some period of time while scarred and
flattened. Even Superintendant Mark Skiles acknowledged that
the bearing had already "failed" by the time he received the
phone call on Janaury 28. Skiles observed that when the
shaft starts to wobble with a defective bearing on one side,
the bearings on the other side are also ruined. Skiles
further observed that if the shaft starts to wobble because
of bad bearings the entire tail piece could be torn up. This
is consistent with the testimony of Inspector Conrad that if
the roller continues to operate with defective bearings it
could suddenly disintigrate and splatter hot metal all over.
This condition clearly presented a serious hazard to the
miners standing watch over the defective bearing and who were
required to grease that bearing every 20 minutes while the
belt was in operation. Under the circumstances there is
sufficient evidence from which it may be concluded that it
was "reasonably likely" for the tail piece to "disintegrate"
and seriously injure the watchman with flying hot metal.
Accordingly there was a 11 signif icant and substantial" and
serious violation of the cited standard. Secretary v.
Mathies Coal Co., 6 FMSHRC 1 (1984). In addition there was
at least one period of time (following Clyde King's watch)
during which no one was keeping watch over the subject
bearing. Thus the hazard from fire and smoke described by
Inspector Conrad was reasonably likely without the availability of someone to signal an alarm and/or remedy the hazard.
For this additional reason I find the violation to be "significant and substantial" and serious. Mathies, supra.
The fact that the mine operator kept the area around the
subject bearing clean, wet and rock dusted, and that it maintained partial watch over the subject bearing may be considered in mitigation of negligence. In assessing a penalty
herein I.have also considered that the operator is large in
sizef has a substantial history of prior violations, and
abated the condition even before it was cited by MSHA or was
the subject of the "103(g)" complaint. Under the circumstances a civil penalty of $200 is warranted •

.

244

ORDER
Citation No. 2678490 with its "significant and substantial" findings is hereby affirmed. The Contest Proceeding is
dismissed and U.S. Steel Mining Company Inc. is directed to
pay a civil penalty of $200 within 30 days
the date of
this decision.

Distribution:
Susan M: Jordan, Esq., Office of the Solicitor,, U.S. Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Billy M. Tennant, Esq., 600 Grant Street, Room 1580,
Pittsburgh, PA 15230 (Certified Mail)
rbg

245

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

FEB 4 1987
DAN L. THOMPSON,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. WEST 85-77-DM
MSHA case No. MD 82-27

GILBERT INDUSTRIAL,
Respondent

Cyprus Thompson Creek Project

ORDER OF DISMISSAL
The Complainant, Dan L. Thompson, requests approval to
withdraw his Complaint in the captioned case on the grounds
that a mutually agreeable settlement of the underlying controversy has been reached. Under the circumstances herein,
permission to withdraw is granted.
29 C.F.R. § 2700.11. The
case is therefore dismissed. At the request of the parties
the specific terms of the settlement agreeme~t are hereby
sealed subject to review only by .order of th· Commission, a
Commission judge, or Court having jurisdictio •

\___,)

L

~'\/'-~ /""------,..--~
.

1

Gary Meli k
/
.Administrrive Law 'udge
Distribution:

W. Craig James, Esq., Skinner, Fawce'tt & Mauk, 515 South
Sixth Streetu P.O. Box 700, Boise, Idaho 83701 (Certified
Mail)
Ronald F. Sysak, Esq., Prince, Yeates & Geldzahler, Third
Floor Mony Plaza, 424 East 500 South, Salt Lake City, Utah
84111 (Certified Mail)
rbg

246

·-.

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

FEB 5 1987

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 85-202
A.C. No. 1 15192-03501

v.

No. 1 Mine

MOUNTAINEER COAL COMPANY,
Respondent
DECISION
Before:

Judge Fauver

On January 14, 1986, because of Respondent's failure to
comply with a prehearing order, a show cause order was issued
allowing Respondent until February 3, 1987, to explain, in
writing, why (1) i t should not be deemed to have waived its
right to a
, and (2)
Secretary's proposed penalties
should not become the final order of the Commission.
Respondent has failed to file a response to the show
cause order, and is hereby deemed to have waived its right
to a hearing.
The proposed
1 penalties shall therefore
be made the f
order of the Commission.
WHEREFORE IT IS ORDERED that Respondent shall pay the
Secretary's
sed civil
ties in the amount of $624.00
within 30
of this decis

lJjj,,_.~ ~~~

William Fauver
Administrative Law Judge

oistribut
7herese Ball,
., Off
of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, Nashville, TN 37203 (Certi
Mail)
Wayne Davidson, General
, Mountaineer Coal Company,
Route 2, Box 60, Manchester, KY 40972 (Cer fied Mail)
kg

247

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

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB 5 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'rRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 86-164
A.C. No. 36-02667-03525

v.
Benjamin No. 1 Strip Mine
BENJAMIN COAL COMPANY,
Respondent
UNITED MINE WORKERS OF
AMERICA (UMWA),

Intervenor
DECISION
Before:

Judge Melick

This case is before me upon .... the petition for civil
penalty filed by the Secretary of Labor pursuant to§ 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et~, the "Mine Act", for one violation of the regulatory-Standard at 30 C.F.R. § 40.4. The general issue before
me is whether Benjamin Coal Company (Benjamin) violated the
cited standard and, if so, the appropriate civil penalty to
be assessed in accordance with§ llOCi)
the Mine Act.
The citation at bar, No. 2404451, as amended, alleges as
follows:
The operator failed to post a copy of the information provided the operator pursuant to
40.3
Code of Federal Regulations. This part [sic] s
be posted upon receipt by the operator on the
ne
bulletin board and maintained in a current status.
A certified form letter authorizing the UMWA to act
as reoresentatives for several employees, was
recei;ed by the operator on 10-23-85.
The cited standard, 30 C.F.R. § 40.4, requires that "a
copy of the information provided the operator pursuant to
§ 40.3 of this Part shall be posted upon receipt by the

248

operator on the mine bulletin board and maintained in a
current status. 11 ~/
The parties in this case agreed to waive hearings and to
submit the matter on a stipulation of facts.
According to
the stipulation Benjamin owns and operates the No. 6 Preparation Plant located in Clearfield County, Pennsylvania. The
plant employs approximately 35 miners and processes coal from
various strip mines operated by Benjamin. On October 21,
1985, four miners who worked at the No. 6 Preparation Plant
designated the United Mine Workers of America (UMWA) to be a
miner's representative at the plant. This written
designation was filed with the Federal Mine Safety and Health

!I

The standard at 30 C.F.R. § 40.3 provides as follows:
(a) The following information shall be filed by a
representative of miners with the appropriate District
Manager, with copies to the operators of the affected
mines. This information shall be kept current:
Cl) The name, address, and telephone number of the
representative of miners.
If the representative is
an organization, the name, address, and telephone
number of the organization a~d the title of the
official or position, who is to serve as the representative and his or her telephone number.
(2) The name and address of the operator of the
mine where the represented miners work and the name
and a·aaress, and Mine Safety and Heal th Administration identification number, if known, of the mine.
(3) ~ copy of the document evidencing the designation of the representative of miners.
(4) A statement that the person or position named
as the representative of miners is the representative
for all purposes of the Act; or if the representative's authority is limited, a statement of the
limitation.
(5) The names, addresses, and telephone numbers, of
any representat
to serve in his absence.
(6) A statement that copies of all information
filed pursuant to this section have been delivered to
the operator of the
fected mine, prior to or concurrently with the filing of this statement.
(7} A statement certifying that all information
filed is true and correct followed by the signature
of the representative of miners.
(b) The representative of miners shall be responsible for ensuring that the appropriate District
Manager and operator have received all of the information required by this part and informing such District
Manager and operator of any subsequent changes in the
information.

249

Administration's (MSHA's) Manager of District 2 and a copy
was sent to Benjamin in accordance with 30 C.F.R. § 40.2(a)
and §40.3(b). The designation specifically listed Barry
Mylan and Lester Poorman as the UMWA representatives. Mylan
and Poorman are employees of the UMWA as Health and Safety
Representatives but neither is employed by Benjamin.
There is no dispute that Benjamin has never posted on
the mine bulletin board the information it received under 30
C.F.R. § 40.3 designating the UMWA as a miners' representative at the No. 6 Preparation Plant. Accordingly, on
November 7, 1985, an MSHA inspector cited Benjamin for a
violation of 30 C.F.R. § 40.4. Since Benjamin continued in
its refusal to post the requisite information a section
104(b) "failure to abate" order was issued on December 16,
1985.
In defense, Benjamin first argues that the UMWA cannot
be a representative of miners at the plant because the UMWA
did not receive a majority of the votes in a March 14, 1984
election conducted under the National Labor Relations Act
(NLRA) for selection of an exclusive collective bargaining
agent.
The statutory authority for representatives of miners
in the context of this case is not however the NLRA but the
Mine Act.
Accordingly, the UMWAis status as exclusive
collective bargaining agent under the NLRA is irrelevant to
its status as a representative of miners under the Mine Act.
The Mine Act makes several references to miners' representatives for a variety of purposes under the Act. One of
the major functions of a miners' representative is set forth
in section 103(f) of the Mine Act:
Subject to regulations issued by the Secretary, . • . a representative authorized by [the
operator's] miners shall be given an opportunity to
accompany the Secretary or his authorized representative during the physical inspection of any
coal or other mine made pursuant to the provisions
of subsection (a), for the purpose of aiding such
inspection and to participate in pre- or postinspection conferences held at the mine . • • •
The term "representative of miners" is not defined in the Act.
Under regulations issued by the Secretary, however, the
"representative of miners" means: "[a]ny person or organization which represents two or more miners at a coal or other
mine for purposes of the Act • . . . " 30 C.F.R. § 40.l(b).
This definition of "representative of miners" is "a reasoned
and supportable interpretation of the Act." United Mine
Workers v. FMSHRC, 671 F.2d 615, 626 (D.C. Cir. 1982). See
also Magma Copper Co. v. Secretary of Labor, 645 F.2d 694,
696 (9th Cir. 1981). Accordingly the UMWA, designated by

250

four miners at the No. 6 Preparation Plagt, may be a "representative of miners" within the meaning of 30 C.F.R. §
40.l(b) of the Mine Act, and the fact that it may lack
certification as the exclusive collective bargaining agent
under the NLRA is not at all relevant.
It is also significant that in the preamble to Part 40
of the Secretary's regulations the Secretary unequivocably
rejected the NLRA definition:
[Some] commenters suggested that the National Labor
Relations Board (NLRB) definition of representative
be applied while others suggested that the representatives should be elected by a majority • • • •
[T]he NLRB definition is inappropriate because the
NLRB definition of "Representative" concerns itself
with a representative in the context of collective
bargaining. The meaning of the word representative
under this act is completely different. Additionally the rights of nonunion miners would be
severely limited by a definition of "Representative
of Miners" based on the collective bargaining
concept. Furthermore, the "majority rule" concept
is a fundamental component~of the NLRB definition
of representative, which contemplates only one
union miner representative at each mine. The
purposes of the Mine Act are better served by
allowing multiple representative to be designated.
Th~s insures that all miners have the opportunity
to exercise their right to select the representative of their choice for the purpose of performing
the various functions of a representative of miners
under the act and within the framework of each
provision ••
43 Fed. Reg. 29508 (July 7, 1978).
Benjamin next argues that the UMWA and its Safety and
Health Representatives, Barry Mylan and Lester Poorman,
cannot be representatives of miners under the Mine Act
because they are not employees of Benjamin. As the UMWA
points out in its brief however, one of the most important
functions of a miners' representative under the Mine Act is
the inspection walkaround right under Section 103Cf). That
section provides in part that "such representative of miners
who is also an employee of the opertor shall suffer no loss
of pay during the period of his participation in the inspection made under this subsection."
(Emphasis added.)
It is
apparent that if all miners' representatives were required to
be employees of the operator, the noted language would be
meaningless surplusage. Clearly, Congress intended that
non-employees, as well as employees, could be designated as

251

representatives of miners. See Secretary of Labor on behalf
of Mylan and Poorman v. Benjamin Coal Co., and UMWA, Docket
No. PENN 86-125-D, (Judge Koutras, January 8, 1987)~ Consolidation Coal Co., v. UMWA, 2 FMSHRC 1403, 1408 (Judge
Broderick, 1980)~ andEmery Mining Corp. v. Secretary of
Labor, 8 FMSHRC 1182, 1202 (Judge Morris, 1986) (review
pending).
Indeed allowing nonemployees to serve as miners'
representatives furthers the purposes of the Mine Act by
allowing participation in mine inspections by those specially
trained and skilled in mine safety and health matters.
In this case Benjamin concedes that the UMWA was
designated by "two or more miners" as a representative of
miners at its No. 6 Preparation Plant, and that it was so
notified pursuant to 30 C.F.R. § 40.3. Under 30 C.F.R. §
40.4 Benjamin was required to post on the mine bulletin board
the information it thus received concerning the identity of
the representative of its miners under the Mine Act.
Benjamin concedes that it has not posted that information and
accordingly the violation is proven as charged.
In determining an appropriate civil penalty in this case
I note that Benjamin continued to refuse to post on the mine
bulletin board a copy of tRe requisite information pertaining
to the representative of miners even after being cited.
Accordingly an order under § 104(b) of the Act was issued for
failure to abate the violative condition. However inasmuch
as the operator's position in this case has an arguable basis
in law and it appears that its refusal to comply with the
citation and 104Cb) order was founded in its effort to obtain
a ruling of law concerning at least in part an issue of first
impression I do not attribute high negligence or give significant consideration to the failure to abate under the
circumstances;
In addition I find it difficult, based on the limited
stipulations of fact before me, to properly evaluate the
gravity of the violation.
It is not known for example
whether the designated representatives of miners were
actually denied entry to the mine or whether there was merely
a failure to post the requisite notice. Thus it cannot be
determined from these facts whether the failure to post the
required information, the specific violation charged herein,
was in itself of high gravity.
In assessing the penalty
herein I have also considered the history o violations and
the size of the operator's business. Within this frame ork I
find that a civil penalty of $50l~/appropri te.

l~

lL

Gary.Meltc
Administ a ive Law

252

Distribution:
Mark v. Swirsky, Esq., Office of the Solicitor, U.S. Department of Labor, Room 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Vasilis C. Katsafanas, Esq., Berkman, Ruslander, Pohl, Lieber
& Engel, 40th Floor, One Oxford Centre, Pittsburgh, PA
15219-6498 (Certified Mail)
Michael H. Holland, Esq., and Mary Lu Jordan, Esq., UMWA, 900
15th Street, N.W., Washington, D.C. 20005 (Certified Mail)
Dennis D. Clark, UMWA, 1615 L Street, N.W., #1360,
Washington, D.C. 20036 (Certified Mail)
rbg

253

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

22041

FEB 6 1987
GERALD C. BRUNTON,
Complainant

DISCRIMINATION PROCEEDING
Docket No. LAKE 86-109-D

v.
SHAWNEE COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Gerald C. Brunton, Shawnee, Ohio, pro se;
Thomas F. Sands, Esq., McClelland, Mccann and
Ransbottom, Zanesville, Ohio, For Respondent.

Judge Broderick

STATEMENT OF THE CASE
Complainant contends that he was discharged from his job as
a welder with Respondent for activity protected under the Act.
Pursuant to notice, the case was heard in Columbus, Ohio on
January 15v 1986. Gerald C. Brunston testified on his own behalf.
James N. Denny testified for Respondent. The parties waived
their right to file post hearing briefs. Based on the entire
record and considering the contentions of the parties, I make the
following decision.
FINDINGS OF FACT
Respondent was the owner and operator of a surface coal mine
near Zanesville, Ohio. Complainant began working for Respondent
on November 11, 1984 as a laborer on the coal tipple. After
about one and one-half months, he became a welder. He was paid
$7.00 an hour plus $140 a month for the use of his truck and
welding machine. He worked on the average of 50 hours per week
and was paid time and one-half over 40 hours. Complainant had
studied welding for 2 years at the Tri-County Vocational school.
James Denny was Complaiant's foreman during all the time he
worked at Respondent.
Complainant testified that he was reprimanded ("yelled at")
by his foreman about once every week and was sent home on one
occasion as a disciplinary measure. Denny testified that

254

Complainant was unable to do "hang" or "vertical" welding, but
could only weld flat.
He stated that he reprimanded Complainant
for failure to service the radiator on a scraper in
December 1985, resulting in substantial damage to the scraper.
In November 1985, a State inspector "red tagged" a piece of
equipment for inadequate brakes after Complainant told the
inspector to check the loader because it had no brakes.
It was
repaired within 3 or 4 days.
Complainant testified that he was
required on a couple of occasions to work under an unsafe
highwall. Denny denies that allegation.
On April 17, 1986, Denny told Complainant and fellow worker
Joe Humphrey to get haircuts.
Denny stated that Complainant's
hair stuck out on both sides of his hard hat and Denny was afraid
that a spark from the welder could ignite it. Complainant stated
that he had a haircut on April 14, 1986 and his hair was of
moderate length and not a safety hazard. On the following
Monday, April 21, Complainant was asked if he had gotten a _
haircut, and when he said no, was told to go home until he got it
cut. Complainant did not return. He aplied for and received
State unemployment compensation.
Joe Humphrey did get a haircut,
and continued working.
Complainant has sought emplo'yment at various places since
leaving Respondent, but has not found any slgnif icant work to
the
of the hearing.

Whether Complainant was discharged or otherwise
discriminated against because of activity protected under the
Mine Safety Act?
IONS OF
Complainant and Respondent are subject to and protected by
section 105(c) of the Act, the former as a miner, the latter as
an operator.
I have jurisdiction over the parties and subject
matter of this proceeding.
To establish a prima facie case of discrimination under the
Act, Complainant must show that he was engaged in activity
protected by the Act, and that his discharge was motivated in any
part by the protected activity. secretary/Pasula v.
Consolidation Coal Company, 2 FMSHRC 2786 (1980), rev'd on other
grounds sub. norn Consolidation Coal Company v. Marshall, 663
F.2d 1211 (3
r. 1981).
Complainant's refusal to get his hair cut is not activity
protected under the Act.
It is not related to safety complaints

255

or safe working conditions except insofar as it may itself (as
Respondent contends) be a safety hazard. Complainant testified
that there was equipment with safety defects on the premises, and
that he was told to work under unsafe conditions. He did not
state that he refused to work or complained of these conditions.
I conclude that Complainant has failed to establish that he
engaged in activity protected under the Act.
Complainant was told not to return to work until he got his
hair cut. Respondent denies that he was fired. It is clear that
his job was terminated however, and I conclude that this was
adverse action. The reason for his termination was, everyone
agrees, his refusal to get his hair cut. Since I have concluded
that this was not protected activity under the Act, I must also
conclude that his employment was not terminated for protected
activity.
If Complainant had established that he was terminated in
part because of protected activity, I would nevertheless conclude
that Respondent was motivated by unprotected activities and would
have taken the adverse action for the unprotected activities
alone, i.e., Complainant's refusal to follow an order which
Respondent believed was a safety ~azard. Pasula, supra.
Therefore, I conclude that Complainant has not established that
Respondent discharged or otherwise discriminated against him in
violation of section 105(c) of the Act.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED that the Complaint and this proceeding are
DISMISSED.

.,,,f /Jn:;clc.,,.,ieR
)UL-~s
James A. Broderick
Administrative Law Judge
Distribution~

Gerald C. Brunton, Route 1, Shawnee, OH 43782 (Certified Mail)
Thomas F. Sands,
., Graham, McClelland, McCann & Ransbottom
Co", L.P.A., 400 1st Nat 1 l Bank Bldg., Box 669, Zanesville, OH
43702-0669 (Certified Mail)
slk

256

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB 6 t987
CIVIL PENAI,TY PROCEEDING

SECRETARY OF LABOR,
MINE SAFE'rY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. SE 86-40-M
A.C. No. 01-02340-05504-A

v.

Pit No. 4

MICHAEL BRUNSON,
Respondent
DECISION
Appearances:

J. Philip Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner; Michael Brunson, Saraland, Alabama,
pro

Before:

Judge Broderick

STATEMENT OF THE CASE
Petitioner (the Secretary) seeks a civil penalty from
Respondent under section llO(c) of the Federal Mine Safety and
Health Act (the Act).
The Petitioner charges that Respondent 1
acting as an agent of the corporate mine operator, knowingly
authorized, ordered or carried out a violation by the operator of
the mandatory safety standard contained in 30 C.F.R. § 56.9003.
Respondent denied authorizing, ordering or carrying out the
violation.
Pursuant to notice 1 the case was heard on January 13 8
1987 in Mobile, Alabama. Charles Bates, Charles Gwin and Robert
Lee Evert testified on behalf of the Secretary.
Respondent
testified on his own behalf.
Both parties waived their rights to
file posthearing briefs. Based on the entire record and
considering the contentions of the parties, I make the following
decision.
FINDINGS OF FACT
The Brunson Construction Company, Inc., a corporation,
produces sand and gravel, and, as of January 1985, operated two
sand and gravel pits in the State of Alabama, including Pit No. 4
in Clarke County, Alabama.
Its products were sold within the
State, but much of its equipment was manufactured out of the

257

State. The company began its business in 1947. In January 1985,
there were two employees working at the No. 4 Pit.
Respondent Michael Brunson was the Vice President of Brunson
Construction Company, Inc. He did not regularly visit the sand
and gravel pits, but spent most of his time in the company office
in Saraland, Alabama. He is shown in MSHA records as the person
in charge of health and safety for the company.
On January 23, 1985, a combined 107(a) order-104(a) citation
was issued to the Brunson Construction Company by Federal Mine
InspeGtor Charlie Bates. The order/citation charged that
caterpillar front end loader was being operated in the No. 4 pit
without any brakes. The citation charged a violation of 30
C.F.R. § 56.9003. This standard requires that powered mobile
equipment be provided with adequate brakes. The left front wheel
brake booster was leaking, and there was a leak in the air line
from the compressor. The brakes would not stop the vehicle on an
incline.

a

The operator of the loader, Charles Gwin, who testified
under subpoena, stated that he knew of the leak in the booster
brakes, and that he had reported this to the company mechanic and
to W.D. Brunson, the company president. His testimony concerning
when he reported the brake problem to Respondent Michael Brunson
was contradictory, but he finally stated that he told Micha
Brunson about one week before the order was issued that the
brakes were going bad. Respondent told him if the brakes were
bad to shut down the machine. Gwin replied that the brakes had a
leak but were holding. Brunson testified that he did not recall
being told this by Gwin.
I find as a fact that Gwin orally told
Respondent about a week before the order that the brakes on the
loader were defective. Respondent took no action to have the
brak2s repaired until after the order was issued.
The order/citation was terminated on February 11, 1985 after
the brakes on the loader were repaired and found to be in good
operating condition. MSHA proposed an assessment of $500 against
Brunson Construction Company for
violation, and the
assessment was paid by
e company. The history of the company's
prior violations shows that 5 violations were asessed and paid in
the previous 24 months, including 2 violations of 30 C.F.R.
§ 56.9003.
No previous viol~tions under section llO(c) of th8
Act were issued to Respondent.
ISSUE
Does the evidence show that Respondent knowingly permitted
the operation of powered mobile equipment without adequate
brakes?

258

CONCLUSIONS OF LAW
Brunson Construction Company, a corporation, was the
operator of a mine as those terms are used in section llO(c) of
the Act. Respondent, the Vice President of Brunson Construction
Company, was an officer and agent of the.corporation. erunson
Construction Company violated 30 C.F.R. § 56.9003 in operating a
front end loader without having adequate brakes. The foregoing
conclusions are undisputed. The crucial issue is whether
Respondent knowingly permitted the violation.
In the case of Secretary v. Richardson, 3 FMSHRC 8 (1981),
the Commission held (in a case under section 109(c) of the 1969
Coal Act which is substantially indentical to section llO(c) of
the Mine Act) that the term knowingly means knowing or having
reason to know. It does not imply willfulness, bad faith or evil
purpose. I have accepted as factual the testimony of Charles
Gwin that he told Respondent about a week before the order, that
the brakes on the loader were going bad. I therefore conclude ·
that Respondent knew or had reason to know that the brakes were
not adequate. Therefore, I further conclude that he knowingly
permitted the violation of 30 C.F.R. ·§ 56.9003. The violation
was serious. Defective brakes orl mobile equipment are the
largest single cause of fatalities and serious accidents in the
sand and gravel industry. I conclude that an appropriate penalty
for the violation is $300.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED that Respondent shall, within 30 days of the date
of this decision, pay to MSHA the sum of $300 for the violation
of section llO(c) of the Act found herein.
A,/,,?

/..

•

/)

~5 ,kFJ k-PC.·'k:'I t f{

!

1

James A. Broderick
Administrative Law Judge

259

Distribution:

J. Philip Smith, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Michael Brunson, P.O. Box 336, Saraland, AL 36571 (Certified
Mail)
slk

260

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

FEB 6 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
NICHOLAS RAMIREZ,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEVA 86-430-D
MSHA Case No. HOPE CD 86-09
No. 21 Mine

v.
W-P COAL COMPANY,
Respondent

..

DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

The parties have moved for approval of a settlement
agreement, and an order directing compliance with the
settlement agreement and dismissing this case.
FOR GOOD CAUSE SHOWN, the motion is GRANTED.
ORDER
WHEREFORE IT IS ORDERED that:
1. The parties will fully comply with the terms of the
Settlement Agreement filed herein on January 30, 1987.
2.
Any party to this proceeding may move to reopen this
case for hearing and determination upon a complaint by such
party alleging that, within 90 days of such complaint, the
other party violated the terms of the Settlement Agreement
herein and for an order granting appropriate relief.
3.
Based upon the foregoing, this proceeding is
DISMISSED.

~~
William Fauver
Administrative Law Judge
Distribution:
Ronald E. Gurka, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)

261

Harold s. Albertson, Jr., Esq., Albertson & Jones, P.O. Box
1989, Charleston, WV 25327 (Certified Mail)

kg

262

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

FEB 9 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'rRA'rION (MSHA} I
ON BEHALF OF ANDY BRACKNER,
Complainant

DISCRIMINATION PROCEEDING
Docket No. SE 86-69-D
BARB CD 85-41

v.

No. 7 Mine

JIM WALTER RESOURCES, INC.,
Respondent
DECISION
Appearances:

Before:

William Lawson, Esq., Office of the Solicitor, U.S.
Department of Labor, Birmingham, Alabama, for
Complainant; R. Stanley ~arrow, Esq., and Harold D.
Rice, Esq., Birmingham, Alabama, for Respondent.

Judge Broderick

STATEMENT OF THE CASE
Complainant contends that he was discriminated against in
that he was transferred on March 22, 1985 to a less favorable job
because of activities protected under the Federal Mine Safety and
Health Act of 1977 (the Act). Respondent denied that it
discriminated against Com~lainant.
Both parties had pretrial
discovery.
Respondent moved to compel the production of certain
documents.
I denied the motion by an order issued August 5, 1986.
Pursuant to notice, the case was heard in Birmingham, Alabama, on
October 23, 1986. Anthony Brackner, Russ 1 weekly, Daryl
Dewberry, and William Dykes testified on behalf of Complainant.
Respondent did not call any witnesses.
Both parties have filed
post hearing briefs.
Based on the entire record, and considering
the contentions of the parties, I make this decision.
FINDINGS OF FACT
At all times pertinent to this decision, Respondent was the
owner and operator of an underground coal mine in Tuscaloosa
County, Alabama, known as the No. 7 Mine. Complainant Brackner
was employed as a miner.
He began working for Respondent in 1982
as an electrician, and worked primarily on continuous miner

263

sections. In January 1985, he was assigned to work as an
electrician on the Number 1 Longwall to prepare him to work on
the Number 2 Longwall which was being opened up. The longwall
sections operate twenty four hours per day, 7 days a week, with
shifts "swapping out at the face." The continuous miner sections
operate 16 hours per day, 5 days a week, and the shifts change
outside. For these reasons, overtime work is always available to
miners working on the longwall, and rarely available to miners
working on continuous miner sections.
on March 19, 1985, a methane ignition occurred on the
Longwall Number 1 Section. No injury or property damage resulted.
After the ignition was contained and extinguished, Complainant
asked the section foreman whether he was going to report it to
MSHA.
30 C.F.R. § 50.10 requires that an unplanned ignition be
immediately reported to MSHA. The section foreman replied that
he was not going to report it. On the following day, Complainant
told the UMWA Safety Committeeman about the ignition, and he
reported it to MSHA. On March 22, 1985, MSHA conducted an
investigation and issued two citations, one for failure to report
the ignition, the other for failing to shut down the section to
prevent the destructio~ of evidence. In the course of the
investigation, Complainant was i~erviewed by MSHA inspectors at
the beginning of his shift on March 22. When he left the
interview, he was told by foreman Hugh Bonham to report to the
Number 8 continuous miner section. Complainant asked why he was
being transferred from the longwall, and Bonham replied that he
was told to transfer him. Four or five days later, Complainant
asked the Number 1 longwall maintenance foreman Eugene Foster why
he was taken from the longwall, and was told that the order came
from higher up. The next day Complainant asked James Kelly,
maintenance supervisor over all the longwalls, about the transfer.
Kelly said he knew nothing about it. When Complainant told
Foster about Kelly's response, Foster shrugged his shoulders. A
few days after Complainant's transfer, he was replaced on the
longwall section by an electriciaD with less seniority than
Complainant. The workload on the longwall section increased
after Complainant's transfer.
Complainant worked on the continuous miner section from
March 22, 1985 through May 19, 1985. He worked overtime only
twice for a total of 2-1/4 hours.
During the same period, the
electricians who remained on the longwall worked 48, 46 and
50-1/2 hours of overtime during the week.
For the seven weeks
prior to his transfer, Complainant worked 67.25 weekend hours
hours compared to 50 and 38 for the other electricians on the
section. From March 22 through May 19, Complainant worked 48
hours of weekend overtime and 17 hours of doubletime. The three
other electricians worked the following weekend overtime and

264

doubletime hours: Seagle 530T and 19DT; Weekly 39 OT, 2-1/2 DT;
Canon 47-1/2 OT, 12 DT.
on March 25, 1985, the electricians on the longwall section
filed a grievance to have their classification changed from
electrician to longwall mechanic. The grievance was settled
May 13, 1985 by the reclassification of the electricians to
longwall mechanics. On May 20, 1985 Complainant was awarded the
job of longwall mechanic on the number 2 Longwall section by
exercising his bid rights under the contract.
(When they were
classified as electricians, Respondent could transfer them to and
from the continuous miner sections.) Complainant did not
participate in the grievance and apparently had no right to
participate since he was then working on the continuous miner
section.
Under the terms of the National Bituminous Coal Wage
.Agreement of 1984, a miner may be awarded a job by bid only twice
during the life of the contract, if the job carries the same or
lower wage rate than the job he. currently has. The job of
electrici?n carries the same wage rate as that of longwall
mechanic. Complainant's hourly rate of pay is $14.415; his
overtime hourly rate (time and one half) is $21.6225 and his
doubletime rate is $28.83.
ISSUES

1.

Is Complainant's claim barred by time limitations?

2. Was complainant transferred on March 22, 1985 because of
activity protected under the Act?
3.

Was the transfer adverse action?

4. If Complainant was discriminated against, to what
remedies is he entitled?
5. If Complainant was discriminated against, what is the
appropriate penalty?
CONCLUSIONS OF LAW
JURISDICTION
Complainant Andy Brackner and Respondent are protected by
and subject to the provisions of the Act, Complainant as a miner,
and Respondent as the operator of the subject mine.
I have
jurisdiction over the parties and subject matter of this
proceeding.

265

TIME LIMITATIONS
At the outset of the hearing, Respondent moved to dismiss on
the ground that the claim was time-barred.
The alleged
discrimination occurred on March 22, 1985. Complainant signed
his complaint to MSHA on May 21, 1985.
(The form indicates that
it was filed on May 22, 1985). MSHA conducted an investigation
which included interviews with prospective witnesses. MSHA
notified Complainant on April 22, 1986 that in its opinion a
violation occurred.
The complaint was filed with the Review
Commission on April 28, 1986.
Section 105(c)(2) of the Act provides that a miner who
believes that he has been discriminated against may, within 60
days after such violation occurs, file a complaint with the
Secretary.
The complaint here was filed 61 days after the
alleged discrimination.
Complainant testified that he contacted
his union representative, Daryl Dewberry, who advised him of his
rights under section 105(c). Dewberry filled out his complaint,
and, after Complainant signed it, Dewberry took it to the MSHA
$Ubdistrict office.
The one day delay in filing shown here in my
opinion is excused on the basis of Complainant's ignorance of the
applicability of the law, and hi
bringing the matter to the
attention of his union representa ive within the statutory period.
See Herman v. Imco Services, 4 FMSHRC 2123 (1982); Schulte v.
Lizza Industries, Inc., 6 FMSHRC 8 (1984)~ Hollis v.
Consolidation Coal Co., 6 PMSHRC 21 (1984).
The Act further provides that upon receipt of a complaint by
a miner, the Secretary shall commence an investigation within 15
days, and if he determines that discrimination has occurred,
shall immediately file a complaint with the Commission.
It
directs the Secretary to notify the miner within 90 days of the
receipt of a complaint of his determination whether a violation
has occurred,
The Legislative History of the Act makes it clear
that this time limitation is not jurisdictional and that
Complainant should not be prejudiced by the failure of the
Government to meet its time obligations.
s. Rep. No. 181, 95th
Cong.r lst Sess. 36 (1977)f reprinted in Senate Subcommittee on
Labor, Committee on Human Resources~ 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Saf~ and Health Act of
1977 at 624 (1978)
However, the Commission has held that a long
delay coupled with a showing of prejudice to the operator may
subject the complaint to
smissal.
Secretary/Hale v. 4-A Coal
Company; Inc., 8 FMSHRC 905 (1986).
In the present case, the Secretary notified Complainant on
April 22, 1986 that it was determined that discrimination had
occurred.
This was 11 months after the complaint was filed with
MSHA. The question thus arises whether Respondent has

266

demonstrated "material legal prejudice attributable to the delay."
Secretary/Hale v. 4-A Coal Company, Inc., supra. The evidence
shows that many of the potential witnesses no longer are employed
at the subject mine, including Douglas Herring, the union safety
committeman to whom Complainant reported the ignition, and who
called MSHA; Hugh Bonham, a Jim Walter supervisor, who told
Complainant to go to the No. 8 Continuous Miner Section after the
ignition investigation: Walter Daniels, the Safety Director at
the subject mine, with whom Dewberry discussed Complainant's
status and his possible filing of a section 105(c) complaint:
Troy Miller, maintenance foreman on the evening shift who
originally asked Complainant if he wanted to work on the Longwall
Section. Respondent asserted that these people no longer work
for Jim Walters, but has not established that they were not
available for testimony and not subject to subpoena. Further,
there is no evidence in the record as to when they left Jim
Walter's employ. Therefore, I conclude that Respondent has not
.shown material legal prejudice attributable to the Secretary's
delay in filing the complaint with the Commission.
DISCRIMINATION
In order to establish a prima facie case of discrimination
under section 105Cc) of the Mine Act, a complaining miner bears
the burden of production and proof in establishing that (1) he
engaged in protected activity and (2) the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786, (October 1980), rev'd on other grounds sub. nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Co.v 3 FMSHRC 803, (April 1981). The operator may rebut the
pr
facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by
protected activity.
If an operator cannot rebut the prima''(.acie
case in this manner, it nevertheless may defend affirmativel~y
proving that it also was motivated by the miner's unprotected
activity and would have taken the adverse action in any event for
the unprotected activity alone.
Pasula, supra; Robinette, supra.
See also Donovan v. Stafford Construction Co., 732 F.2d 954,
958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983) (specifically approving the Commission's
Pasula-Robinette test).
PROTECTED ACTIVITY
I have found as a fact that complainant reported an ignition
problem to a union safety committeeman who reported it to MSHA.
This followed the refusal of Respondent's foreman to make such a
report. This is incontestably activity protected under the Act.

267

It directly relates to mine safety, and to "making a complaint
under or related to this Act • • • " (Section 105(c)(l).
ADVERSE ACTION
Complainant was transferred from his job as an electrician
on a longwall section to the job of electrician on a continuous
miner section. Although the hourly pay rates are the same, the
evidence clearly shows that the longwall job is more desirable
and affords the opportunity to earn substantially more overtime
pay. I conclude that the transfer was adverse action.
MOTIVATION
Direct evidence of a discriminatory motive is usually
difficult to produce. However, the fact that "the adverse action
• • • so closely foll.owed the protected activity is itself
evidence of an illicit motive". Donovan v. Stafford Construction
Co., 732 F. 2d 954, 960 (D.C. Cir. 1984). The adverse action
here immediately followed Complainant's interview by the MSHA
inspectors. This fact together with the refusal of Complainant's
supervisors to give him any ·reason for his transfer is evidence
tending to establish that the prQtected activity was a factor in
the adverse action. Complainant ·has therefore established a
prima facie case of discrimination under section 105{c) of the
Act. Pasula, supra. Respondent did not submit any evidence to
rebut the prima facie case. Therefore, I conclude that
·
Respondent violated section 105(c} of the Act on March 22, 1985
by transferring Complainant from the position of longwall section
electrician to the position of miner section electrician.
REMEPY

Secretary 1 s Exhibits 1 and 2 show the overtime hours worked
by Complainant and the other electricians prior to his transfer,
and the overtime hours worked by Complainant, and the longwall
electricians after his transfer. I conclude that, as the
attachment "A" to Complainantts brief argues, Complainant lost
42-3/4 hours of overtime during the week and 5 hours of time and
one-half overtime and 2 hours of doubletime work on weekends
during the period March 23, 1985 through May 19, 1985. He is
entitled to receive back pay in those amounts with interest in
accordance with the formula in Secretary/Bailey v.
Arkansas-Carbona Company, 5 FMSHRC 2042 (1983). He is further
entitled to have restored the contract bid right which he
exercised to obtain the longwall mechanic position on May 20,
1985.

268

PENALTY
Respondent is a large operator. The violation of section
105(c) found herein was a serious and intentional violation. No
mitigating factors were advanced by Respondent. I conclude that
a penalty of $1000 is appropriate.
ORDER
Respondent is ORDERED to pay to Complainant, within 30 days
of the date of this decision, the sum of $1,105.13 representing
overtime pay of which he was deprived from March 23, 1985 through
May 19, 1985, plus interest in the amount of $169.18 through
Dece.snber 31, 1986 and thereafter at the rate of 10% per annum.
Respondent is FURTHER ORDERED, within 30 days of the date of this
decision, to restore Complainant's contract bid right which he
exercised on May 20, 1985. Respondent is FURTHER ORDERED to pay
to MSHA, within 30 days of the date of this decision, the sum of
$1000 as a civil penalty for the violation foun~ herein.

~~~

Administrative Law Judge

Distribution:
William Lawson, Esq., U.S. Department of Labor, Office of the
Solicitor, 2015 2nd Avenue North, Suite 201, Birmingham, AL 35203
(Certified Mail)
R. Stanley Morrow, Esq., Harold D. Rice, Esq., Jim Walter
Resources, Inc., P.O. Box C-79, Birmingham, AL 35283 (Certified
Mail)

slk

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

FEB 10 1987
STEVE COLLETT,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. KENT 86-109-D
MSHA Case No. BARB CD 86-19

CHANEY CREEK COAL
CORPORATION,
Respondent

Dollar Branch Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Koutras
Statement of the Case

This is a discrimination proceeding initiated by the
complainant against the respondent pursuant to section lOS(c)
of the Federal Mine Safety and Health Act of 1977, alleging
that the respondent discriminated against him by discharging
him on January 14, 1986, for making safety complaints about a
shuttle car which he operated in the mine. Mr. Collett's
initial complaint was investigated by MSHA, and it declined to
file a complaint on his behalf after determining that a violation of section 105(c) had not occurred. Mr. Collett subsequently filed this action with the Commission through counsel.
A hearing on the merits of the complaint was scheduled on
February 11, 1987, in London, Kentucky. However, it was
cancelled after Mr. Collett's counsel advised me that the
parties had reached a settlement.
The parties have now filed
their settlement agreement with me, and they jointly move for
a dismissal of the complaint on the basis of that agreement.
Discussion
Mr~ Collett's counsel states that Mr. Collett is now
employed for another coal company, and is no longer interested
in reinstatement with the respondent. Under the terms of the
settlement, Mr. Collett agrees to withdraw his complaint and to
waive all further claims against the respondent. The respondent

270

agrees to pay Mr. Collett $4,000, in satisfaction of his complaint, in two separate installments of $2,000.
The first
installment is to be paid on or before February 10, 1987, and
the second installment is to be paid on or before March 10,
1987.
Conclusion
After careful review and consideration of the settlement
terms and conditions executed by the parties in this proceeding,
I conclude and find that it reflects a reasonable resolution of
t~e complaint.
Since
seems clear to me that the parties are
in accord with the agreed upon dispo tion of the complaint, I
see no reason why it should not be approved.
ORDER
The proposed settlement IS APPROVED.
Respondent IS ORDERED
AND DIRECTED to fully comply forthwith with the terms of the
agreement.
Upon full and comp te compliance with the terms of
the agreement, this matter is dismissed.
.

•

1

./~./
I

. · / / (,v"'IAT.,,C

(A,)
/f"
t ,,

1.L i;-z-·c?'~-.::z./
~

- Jeorge Af. Koutras
· ·
Administrative Law Judge
Distribution:

Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified Mail)
Thomas W. ~iller, Esq., Miller, Griffin & Marks, P.S.C.,
700 Security Trust Building, Lexington, KY 40507
(Certified Mail)

271

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

FEB 1O1987
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 87-3
A.C. No. 15-14291-03503

v.

Marigold Docks

MARIGOLD DOCKS, INC.,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

On February 9, 1987, the parties
a Joint Motion
to app.rove settlement in this case.
The violations were
originally assessed at $126 and the parties propose to settle
for !?120.
Respondent does not agree that the c
was properly
issued to it, rather than the employer
the deceased miner.
However, it
to the settlement of this case by the
payment of $120.
I have considered the mot
the light
of the criteria
section llO(i) of the Act, and conclude
that it should
approved.
Accordingly, the settlement is APPROVED and Respondent
is ORDERED TO PAY the sum of $120 within 30 days of the date
of this order.

rl6f.

I

-/

f/)AJA,{:,-fj /4~u· Vt/Qct,·1A·· t!.~

1

James A.
Administrat

ick
Law Judge

Distribution:
G. Elaine Smith, Esq., U.S. Department of Labor, Office of the
Solicitor, 280 U.S. Courthouse, 801
, Nashville, TN
37203 (Certified Mail)

J. Fred McDuff, Esq., P.O. Box 10246, Birmingham, AL 35203
(Cert if iep Mail)
slk

272

FEDERAL M~N~ $AF!eiif AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB 10 1987

CONTEST PROCEEDING

SOUTHERN OHIO COAL COMPANY,
Contestant

Docket No. WEVA 86-190-R
Order No. 2705915; 2/19/86

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

Docket No. WEVA 86-194-R
Order No. 2705881; 2/20/86

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

CIVIL PENALTY PROCEEDING

ADMINISTRATION

Docket No. WEVA 86-254
A. C. No. 46-03805-03723

(MSHA),

Petitioner

v.

Martinka No. 1 Mine

SOU'l'HERN OHIO COAL COMPl.\NY,

'Respondent

.."
DECISION

Appearances:

David M. Cohen, Esq., American Electric Power
Service CorPoration, Lancaster, Ohio, for
Contestant/Respondent~
James E. Culpu Esq., Office of the Solicitor,
U.S. Department of Labor§ Philadelphia, Pennsylvania,
Respondent/Petitioner.

Before:

Judge Maurer
STATEMENT OF

CASE

Contestant, Southern Oh
Coal Company (SOCCO), has
filed not ces of contest challenging the issuance of Order
No. 2705915 (Docket No. WEVA 86-190-R) and Order No. 2705881
(Docket No. WEVA 86-194-R) at its Martinka No. 1 Mine.
The
Secretary of Labor (Secretary) has filed a petition seeking
ci il penalties in the total amount of $2,100
the violations cha
in the above two contested orders as well as
that violation charged in Order No. 2705918 which was the
subject of Docket No. WEVA 86-192-R.
2-R was disposed of by a separate
April 16,

273

1986.

At the hearing on these cases, which was held on August 19,
1986, 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. 2705918.
I approved
a reduction from $600 to $400 of that part of the civil penalty assessment and granted the motion on the record (Tr. 5).
The general issues before me concerning each of the remaining individual orders and its accompanying civil penalty petition are whether the orders were properly issued, 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 thqt standard as well as the appropriate
civil penalty to be assessed for the violation, should any
be found.
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 (Tr. 6-7):
1. The Martinka No. 1 Mine is owned by respondent,
Southern Ohio Coal Company.
2. The Martinka No. 1 Mine is subject to the jurisdicon of the Federal Mine Safety and Health Act of 1977.
3.
The Administrative Law Judge has jurisdiction over
these proceedings.
4.
The subject orders and terminations were properly
served by a duly authorized representative of the Secretary
of Labor on an agent of respondent on the dates, times, and
places stated therein and may be admitted into evidence for
purposes of establishing their issuance without waiving any
objections as to their truthfulness and the relevancy of the
statements contained therein.
5.
The alleged violations were abated in a timely
fashion.
6.· The respondent's annual production for the year 1985
was approximately 7 million production tons.
The subject
mine had 2,495,783 production tons in 1985.

274

7.
Respondent had 2,773 assessed violations during the
·24-month period prior to the issuance of the orders at the
subject mine.
·8.
Respondent received a section 104(d) (1) order on
September 1, 1981, issued by Federal Mine Safety and Health
Inspector Frank Bowers. Martinka No. 1 has had no clean
inspections of the mine from the issuance of that order to
February 20, 1986.
I.

Docket No. WEVA 86-190-R; Order No. 2705915

Order No. 2705915, issued pursuant to section 104(d) (2)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (the Act), alleges a violation of the regulatory standard at 30 C.F.R. § 75.1403 ~and charges as
follows:
In the 2 east C section, there was less th~n 24
inch clearance between the left coalline rib and
the Stamler belt coal feeder for approximately 6
to 7 feet, only 12 inch clearance was between the
Stamler and ribline and the start and stop switch
was installed for the belt conveyor in this area.
Coal and slate was being dump on the right side of
the Stamler instead of the front and the fire warning box was installed outby the Stamler Feeder.
Mechanics, electricians, and belt cleaners use
this area.
Jim Kincell and Robert Molshan, belt
foremen.
Safeguard No. 2034480 - issued 1 03-82.
FDB .•
The above-referenced safeguard provides in pertinent
part:
"24 inches of clearance shall be provided on both
sides of the coal feeders in this mine."
As a factual matter, the witnesses for both parties were
ab
to agree that the coal feeder in question was indeed
closer than 24 inches to the left coal line rib on the mornof February 19, 1986, at the time the instant order was
issuedo
However, a threshold legal issue raised by SOCCO is
whether the safeguard which is Government Exhibit No. 2 constitutes a valid and enforceable notice to provide safeguards.
If the safeguard is not valid, then the (d) (2)
order which purports to enforce it would likewise be invalid.
2/

30 C.F.R. § 75.1403 provides as follows:
Other safeguards adequate, in the judgment of an
authorized representative of the Secretary, to minimize
hazards with respect to transportation of men and materials shall be provided.

275

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--rri'stant safeguard should have
properly been the subject of such rule-making, rather than a
safeguard notice issued under section 314(b) of the Act. 3/
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 rule-making procedures contemplated by the
Act. However, this authority is not without bound. The
Secretary cites Southern Ohio Coal Co., 7 FMSHRC 509 (1985)
for the proposition that the Commission has approved the
issuance of safeguards without rule-making for a particular
mine and that th~ Commission has stated that the operator's
interest is nevertheless protected by narrowly construing
the terms of the safeguard to assure that the operator
understands the hazard sought to be regulated. However,
SOCCO's position in this case is not that they didn't understand the terms of the safeguard at bar, but rather that the
Secretary is not authorized to issue safeguards of a universal
nature on a mine-by-mine basis in the first instance.
The operator contends that the subject matter of the
instant safeguard is of general applicability.
It simply
requires 24 inches of clearance on both sides of coal feeders.
Inspector Delovich testified that the hazard involved
if the feeder is closer than that to the rib line is that a
miner could conceivably be crushed between the feeder and
the rib if the feeder should be bumped by a shuttle car dumping coal into it.
The company's argument is that there is
nothing unique about the Martinka No. 1 Mine that would increase this hazard at that mine and no others; rather, the
hazard sought to be eliminated by the safeguard exists
equally in all mines using coal feeders.
SOCCO also makes the point that the previous Southern
Ohio Coal Co. case which the Secretary relies on here as
authority concerned a notice to provide safeguards issued
pursuant to 30 C.F.R. § 75.1403-5(g}, one of the specific
criteria set forth in the Code of Federal Regulations.
The
point being that the specific criteria set forth in 30 C.F.R.
§ 75.1403-2 through 30 C.F.R. § 75.1403-11 were established
via the rule-making process. Whereas in the instant case,
Safeguard No. 2034480, which is the underlying safeguard in
the (d) (2) order at bar, was not issued pursuant to and does
not relate to any of those specific criteria.

3/ Section 314(b) of the Act consists of the identical
language contained in 30 C.F.R. § 75.1403 as fully set out
in fn. 2.
276

It is noteworthy that the other c~se relied on by the
Secretary, Zeigler Coal Co. v. Kleppe!/, although cited for
the court's holding that violations of an approved ventilation plan may properly be considered a violation of a mandatory safety and health standard even though such plans are
approved without rulemaking, had more to say oh the subject
of when rulemaking would be required.
The Court went on to
state that:
It [section 303(0) of the Act] was not to be used
to impose general requirements of a variety wellsui ted to all or nearly all coal mines, but rather
to assure that there is a comprehensive scheme for
realization of the statutory goals in the particular instance of each mine.
Thus an operator might contest an action seeking to compel adoption of a plan, on the ground
that it contained terms relating not to the particu~ar circumstances of his mine, but rather imposed
requirements of a general nature which should more
properly have been formulated as a mandatory standard, under the provisions of § 101.
This would
appear to render all but inconsequential the actual
circumvention of § 101 resulting from the enforceability of ventilation plans.
For insofar as those
plans are limited to conditions and requirements
made necessary by peculiar circumstances of individual mines, they will not infringe on subject
matter which could have been readily dealt with in
mandatory standards of universal application. ~
While the Secretary concedes that the particular
at issue here may have application beyond the Martinka
No. 1 Mine, he argues that it cannot be held on its face to
such a general and universal application so as to compel rulemaking.
The operator's position is that it is
abundantly clear that the requirements of the safeguard are
of a general nature appl
to all coal mines and thereshould have been formulated as a mandatory standard
under the provisions of section 101 of the Act.
Reading the
record as a whole, I believe that a clear inference may
drawn that the requirements of the instant safeguard are
icable to at least a significant number of coal
s
ch employ coal feeders and shuttle cars to transport
coal.
Importantly, there is no reason given in this record
why the 24 inch clearance
rement should be imposed only
in
particular mine herein involved and not in mines
using coal feeders generally .
. 1976).

277

The Act provided for flexibility by creating safeguards
to cover those situations where conditions .vary on a rnine-tomine basis.
Through the use of safeguards, certain requirements can be imposed on a particu r mine because of its
peculiar physical lay-out or circumstances.
"However, the
potential scope of safeguards is very broad and accordingly,
care must be taken to ensure that they are employed only in
the proper context and do not become a means whereby the usual
rule-making process is ignored and circumvented." U.S. Steel
Mining Co., Inc., 4 FMSHRC 526, 529-530 (1982).
In that case,
Judge Merlin held that the safeguard had nothing to do with
conditions peculiar to that mine as opposed to other mines.
He concluded that the safeguard and subsBquent citation based
upon it were improperly issued and invalid.
I conclude that where, as here, the safeguard is not
issued under any of the specific criteria for safeguards
contained in 30 C.F.R. §§ 75.1403-2 through 75.1403-11, then
the requirements of that safeguard must be demonstrably related to some mine-specific hazard or unsafe condition
sought to be corrected.
In the instant situation, I find
that the requirements set forth in Safeguard No. 2034480 and
the hazards sought to be protected against are of a general
nature applicable to at least a significant number of other
coal mines utilizing coal feeders and therefore should have
properly been promulgated using the rule-making procedures
contained in § 101 of the Act.
Therefore, I find that Order
No. 2705915, being based on an invalid safeguard was improperly issued and will be vacated.
II.

Docket No. WEVA 86-194-R; Order No. 2705881

Order No. 2705881, issued pursuant to section 104(d) (2)
of the Act, alleges a violation of the regulatory standard
at 30 C.F.R. § 75.400 ~/ and charges as follows:
On the B-6 longwall belt conveyor there was 23
bottom rollers turning in wet to dry coal dust,
11 bottom rollers frozen, damaged, in wet coal
dust under the belt takeup and the front bottom
roller at the belt drive was turning in coal dust
directly outby the belt drive roller drums and the
bottom belt for approximately 10 feet at the belt
drive, running in coal, bottom belt was running
6/

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.

278

out of line and rubbing the steel leg stands cutting into the leg stands 1/4 to 1/2 inch in the
area where the rollers were turning in the coal,
frozen bottom rollers under the belt takeup were
shining.
Conditions present a fire hazard. Larry
Morgan, longwall foreman, Dave Williams, longwall
coordinator foreman.
MSHA Inspector Harry C. Markley issued the instan~ order
during an AAA inspection of the Martinka No. 1 Mine on February 20, 1986. He observed accumulations of coal'starting to
build up under the rollers of the B-6 longwall belt conveyor,
and the further he walked toward the section, he saw the
rollers running in dry to wet coal.
Finally, when he got to
the tailpiece and saw the muddy conditions there, he told
Mr. Resetar, the operator's safety inspector for the mine,
that he was under a (d) (2) order.
These accumulations and
conditions existed for a distance of approximately 300 feet
outby the tailpiece. Mr. Markley further opined that there
was an average accumulation of from one to two bushels of dry
to wet coal under each roller, of which 23 were involved in
this violation.
He modified his original description of the
condition of the coal somewhat in response to later questioning. He stated that the coal was dry or would dry in those
areas where the water would run-off and leave the solids at
the rollers.
Inspector Markley testified that the hazard presented by
the situation he observed was that the belt and rollers were
turning in· this accumulation of fine coal and coal dust and
the belt was rubbing the stands causing friction.
He testified that heat was thereby produced, the coal was or could
be dried by the heat, and in his opinion a mine fire could
result.
The condition of the coal, vis-a-vis its wetness or dryness, is a critical initial issue in this case because the
cited regulation speaks to accumulations of combustible
materials.
If the coal accumulation was not combustible as
a factual matter, then it follows that there can be no violation of 30 C.F.R. § 75.400.
The Secretary contends that the
coal around at least some of the 23 rollers was dry and could
present a fire hazard.
The operator contends that the coal
was too wet along the entire 300 foot section cited to constitute either an accumulation of combustible materials or a
fire hazard.
Mr. Mugmano, the Belthead Man at the time the order was
issued, testified that at the time this order was issued he
believed they were mining under a creek because his area was
always wet and muddy.
He testified that th€ coal under

279

the belt was damp to wet under each of the 23 rollers cited in
the order, and the area around the rollers was saturated. Because of these extremely wet conditions, he opined that the
rollers in question could not become dry.
Additional water
comes from the sprays on the longwall shear and the crusher.
Approximately 60 to 75 gallons of water per minute are sprayed
on the coal that is cut and goes on the belt, making it a very
wet belt in the opinion of this witness. When asked if there
was any wet to dry coal dust in the area cited he replied
that the only dry area would have been where an accumulation
of mud came off the rollers and was heated by the friction
of the running belt touching the steel leg stands.
It would
get warm there and form a crust of an inch or two.
The rest
of the area he described as resembling chocolate pudding, and
being too wet to even shovel.
SOCCO Exhibit Nos. 8, 9, 10,
and 11 are photographs that bear this out, at least insofar
as it appears to be an accurate description for the areas
they depict, which I take note is obviously not the entire
300 feet at issue.
Mugmano agreed with the inspector that the bottom belt
was running.out of line and rubbing the steel leg stands and
when it'does that, and the belt is so saturated with water,
it causes a big mudpile to form where it rubs mud off the
belt. Mr. Mugmano disagreed, however, with the characterization of the material as "coal".
He stated it was more
properly called a mixture of coal dust, water and rockdust,
of which he uses approximately thirty (30) 50-pound bags
each day.
The Commission has held that:
[I]t is clear that those masses of combustible
materials which could cause or propagate a fire
or explosion are what Congress intended to proscribe.
Thus, we hold that an accumulation exists
where the quantity of combustible materials is
such that, in the judgment of the authorized
representative of the Secretary [subject to challenge before the administrative law judge] it
likely could cause or propagate a fire or explosion if an ignition source were present.
Old Be~
Coal Co., 2 FMSHRC 2806, 2808 (1980).
When evaluated against that standard the Secretary's
case fails of proof.
The Secretary has the burden of proving
that a sufficient quantity of combustible material existed
which could cause or propagate a fire or an explosion were
an ignition source present.
I am not convinced by the evidence in this record that enough dry coal or dry coal mixture existed to amount to anything-.- I find a"Sa" fact that
the overwhelming majority of the accumulation cited was a
damp to water saturated mixture of coal dust, rock dust and

280

water.
I further find that the only dry part of this accumulation was as Mr. Mugmano testified where accumulations of
mud formed a crust an inch or two thick in those spots heated
by the friction of the running belt touching the steel leg
stands.
The remainder of the material in question I find as
a fact was too wet to be considered "combustible." Ultimately,
therefore, I conclude that there was not a violation of 30
C.F.R. § 75.400 proven.
ORDER
On the basis of the foregoing findings and conclusions,
Southern Ohio Coal Company's contests ARE GRANTED, Order Nos.
27059
and 2705881 ARE VACATED, and MSHA's related civil
penalty proposals ARE REJECTED.
The respondent IS ORDERED to pay to MSHA a civil penalty
in the amount of $400 in satisfaction of that portion of the
civil penalty case that pertains to Order No. 2705918 within
thirty (30) days of the date of this decision and order.
Upon
payment, the civil penalty proceeding IS DISMISSED.

aurer
istrative Law Judge

Distribution~

d M. Cohen, Esq., American E ctric Power Service Corp.,
P. 0. Box 700, Lancaster, OH 43130 (Ce
ed Mail)
James E. Culp, Esq., Office of the Soli
tor, U. S. Department
of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified
Mail)

yh

281

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W COLFAX AVFNUE, SUITE 400
DENVER, COLORADO

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

80204

FEB 121987

CIVIL PENALTY PROCEEDING
Docket No. WEST 86-1-M
A.C. No. 05-03143-05511

v.

Parachute Creek Mine

UNION OIL COMPANY OF
CALIFORNIA,
Respondent
DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Anthony D. Weber, Esq., Union Oil Company of
California, Los Angeles, California,
for Respondent.

Before:

Judge Lasher

This proceeding was initiated by the filing of a petition
for assessment of a civil penalty ("Proposal for Penalty") by the
Secretary of Labor (herein the Secretary) on November 15, 1985,
pursuant to Section 110 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. Section 820 (1977) (herein the Act).
A
hearing on the merits was held in Denver, Colorado, on June 25,
1986, at which both parties were represented by counsel.
Subsequent to the hearing the presiding administrative law judge,
John A. Carlson, passed away and by Order of Assignment dated
October 17, 1986, this matter came on the docket of the undersigned for decision.
The Secretary charges Respondent with one violation, i.e.,
violating 30 C.F.R. § 57.5001/5005 as described in Citation No.
2355268 issued by MSHA Inspector Michael T. Dennehy on May 115,
1985, as follows:
"On May 15, 1985, a Union Oil Company employee welding
underground at the secondary crusher area was over exposed
to welding fumes (Vanadium) while applying hard surfacing
welding rods (nickel-chrome manganese and vanadium-ca~bide>
to the crusher. The welder was exposed to .0678 mg/M3 of
Vandium fume whereas Vanadium fume has a ceiling limit of
.05 mg/M3 and should not be exceeded.
Personal respiratory
protection was not being worn by the employee while he was

282

welding nor was the ventilation fan operating the entire
shift. Analytical results were received June 7, 1985.
This citation is issued June 27, 1985. The samples were
taken May 15, 1985."
The subject 104(a) Citation further charges that the
violation was "significant and substantial" (herein 11 S & S") ~/.
Insofar as relevant, the air quality standard allegedly
infracted, 30 C.F.R. § 57.5001, which sets forth exposure limits
for airborne contaminants, provides:
"Except as permitted by § 57.5005 - (a) Except as provided
in paragraph (b), the exposure to airborne contaminants
shall not exceed, on the basis of a time weighted average,
the threshold limit values adopted by the American Conference of Governmental Industrial Hygienists, as set forth
and explained in the 1973 edition of the Conference's publication, entitled "TLV's Threshold Limit Values for Chemical
Substances in Workroom Air Adopted by ACGIH for 1973," pages
1 through 54, which are hereby incorporated by reference
and made a part hereof. This publication may be obtained
from the American Conference of Governmental Industrial
Hygienists by writing to the Secretary-Treasurer, P.O. Box
1937, Cincinnati, Ohio 45201, or may be examined in any
Metal and Nonmetal Mine Safety and Health District or Subdistrict Office of the Mine Safety and Health Administration. Excursions above the listed thresholds shall not
be of a greater magnitude than is characterized as permissible by the Conference.

x

x

x

x

x

x

x

x

(c) Employees shall be withdrawn from areas where there
is present an airborne contaminant given a 11 C 11 designation
by the Conference and the concentration exceeds the
threshold limit value listed for that contaminant." ~/

ll

In Secretary v. Consolidation Coal Company, 6 FMSHRC 189
(1984), the Conunission held that S & s findings may be made in
connection with a citation issued under Section 104(a) of the Act.
Considering this ~uling in conjunction with U.S. Steel Mining
Company, 6 FMSHRC 1834 (1984), where the mine operator was
allowed to contest S & S findings entered on Section 104Cd)(l)
citations in a penalty case·, it is concluded that S & S findings
contained in a Section 104(a) Citation similarly are properly
reviewable in this penalty proceeding. See also Allentown Cement
Company, Inc. v. Secretary of Labor, 8 FMSHRC 1513, at 1517
( 1986) •
~/
At the hearing, the presiding judge took official notice of
Cl> the applicable threshold limit values (herein TLV's)(T. 7,
8), and ( 2) A 1973 TLV booklet from ACGIH. CT. 251 >. ~ Reproduced
copies of both documents have been placed in an "Exhibits" folder
which, together with other exhibits and the transcript of hearing, constitute the official record in this matter.

283

The pertinent TLVs referred to in 30 C.F.R. § 57.5001
provide as follows:
ppma)

"Substance
Vanadium (V205), as V

c

Dust

mg/M3b)
0.5
0.05

•....•..••..•..

Fume

x

x

x

x

x

x

x

x

x

a) Parts of vapor or gas per million parts of contaminated
air by volume at 25°C and 760 mm. Hg. pressure.
b) Approxiaate milligrams of substance per cubic meter of
air."~/
30 C.F.R. § 57.5005, entitled "Control of exposure to
airborne contaminants", also cited by the issuing Inspector,
provides:
Control of employee exposure to harmful airborne contaminants shall be, insofar as feasible, by prevention of
contamination, removal by exhaust ventilation, or by
dilution with uncontaminated air. However, where accepted
engineering control measures have not been developed or
when necessary by the nature of work involved (for example,
while establishing controls or occasional entry into hazardous atmospheres to perform maintenance or investigation),
employees may work for reasonable periods of time in concentrations of airborne contaminants exceeding permissible
levels if they are protected by appropriate respiratory
protective equipment. Whenever respiratory protective
equipment is used a program for selection, maintenance,
training, fitting, supervision, cleaning, and use shdll
meet the following minimum requirements:
(a) Mine Safety and Health Administration approved respirators which are applicable and suitable for the purpose
intended shall be furnished, and employees shall use the
protective equipment in accordance with training and instruction.
(b) A respirator program consistent with the requirements
of ANSI Z88.2-1969, published by the American National
Standards Institute and entitled "American National
Standards Practices for Respiratory Protection ANSI Z88.21969," approved August 11, 1969, which is hereby incorporated by reference and made a part hereof. This publication may be obtained from the American National Standards
Institute, Inc., 1430 Broadway, New York, N.Y., 10018, or
may be examined in any Metal and Nonmetal Mine Safety and
Health District or Subdistrict Off ice of the Mine Safety
and Health Administration.
3/ The effect of the "C" designation in front of the Vanadium
Fume TLV is shown in§ 57.500l(c), supra, and I infer from the
fact that withdrawal of employees is required where the "C"
designation appears that such a concentration of the airborne
contaminant, in the opinion of ACGIH poses a potentially serious
hazard (T. 140, 141, 236, 237).
284

(c) When respiratory protection is used in atmospheres immediately harmful to life, the presence of at least one
other person with backup equipment and rescue capability
shall be required in the event of failure of the respiratory equipment.
In general aid of the record, the dictionary definitions of
these two terms are set forth here. Thus, vanadium and vanadium
pentoxide are described in "A Dictionary of Mining, Mineral and
Related Terms" (complied and edited by Paul W. Thrush and the
Staff of the Bureau of Mines, U.S. Department of the Interior,
1968), as follows:
Vanadium. A gray or white, malleable, ductile, polyvalent
metallic element in group V of the periodic system. It
is resistant to air, sea water, alkalies, and reducing
acids except hydrofluoric acid. It occurs widely but mainly in small quantities in combination in minerals (such as
vanadinite, patronite, carnotite, and roscoelite), in the
ashes of many plants, in coals, in petroleums, and in
asphalts. Usually obtained in the form of ferrovanadium or
other alloys, or in almost pure metallic form containing
small amounts of oxygen, carbon, or nitrogen by the reduction of ores, slags, or vanadium pentoxide (V205). Used
chiefly in vanadium steel. Symbol, V; atomic number, 23;
and atomic weight, 50.942. Webster 3d; Handbook of Chemistry and Physics, 45th ed., 1964, pp. B-2, B-143.
Vanadium pentoxide. Yellow to red; orthorhombic; V205;
mol.ecular weight, 181.88; specific gravity, 3.357 (at 18°
C>; toxic; melting point, 690° C; decomposes at 1,750° C
before reaching a boiling point; slightly soluble in water;
soluble in acids and in alKalies; and insoluble in absolute
alcohol. Used in ceramics and as a catalyst. Handbook of
Chemistry and Physics, 45th ed., 1964, pp. B-144, B-236.
As noted in the foregoing, and as reflected in the TLVs, V
is the symbol for vanadium and V205 is the symbol for vanadium
pentoxide.
Preliminary Findings
and Conclusions
While the form of vanadium at which the subject safety and
health standard is directed is Vanadium Pentoxide CV205). CT.
100-102, 140, 141), the violation created by 30 C.F.R. § 57.5001
is for exceeding tile TLVs for Vanadium fume or Vanadium dust.
Vanadium pentoxide is one of several forms of Vanadium and is a
separate, more toxic form thereof (T. 140, 141, 168, 208). The
technique for the determination of Vanadium requires {l)
determining the particular TLV (threshold limit value) of
Vanadium (fume or dust) and then (2) determining approximate
milligrams of Vanadium itself per cubic meter of air and applying
to such determination a multiplication factor (error factor) to

285

account for any vagaries inherent in the process. CT. 36-38, 97,
140, 159, 168). The Vanadium fume TLV of .05 rng/M is equivalent
to a Vanadium Pentoxide reading of 2 1/2 times such level (T.
168).
The subject Citation was issued by MSHA Inspector Michael T.
Dennehy on May 15, 1985, the second day of a two-day inspection
of Respondent's Parachute Creek Mine, an underground oil shale
mine located near Parachute, Colorado. On the first day of the
inspection, May 14, Inspector Dennehy ascertained that hard
surf ace welding using vanadium rods was being conducted on the
secondary crusher and decided to sample miners engaged in this
work on the following day.
In furtherance thereof he called an
MSH~ health technician in Grand Junction, Colorado and requested
that welding fume filters be prepared for his survey to be
conducted the following day and precalibrated his P-2500 pumps in
preparation therefor. CT. 11-15; Ex. P-1).
After calibrating the pumps on May 14, 1985, and charging
them overnight, Mr. Dennehy returned to the mine site the next
morning with five pumps and air filters CT. 15). Mr. Dennehy
proceeded to the crusher area of the mine where four employees
were welding CT. 16) and he placed the pumps on them by fastening
the pump to their belt, putting the pump hose behind their back,
and placing the top of the hose in their breathing zone CT. 18).
Each pump contained a filter that was placed in the pump by Mr.
Dennehy after removing the preseal number CT. 19, 22). Mr.
Dennehy recorded the preseal number on his health field notes
(Ex. P-2)(T. 22, 23). Mr. Dennehy also recorded on Exhibit P-2
the time he turned on the pumps and he noted the names of the
employees CT. 21). After turning on the pumps, Mr. Dennehy left
the area to conduct further inspection CT. 24).
At issue in this matter is sample number MD-1 as indicated
on Ex. P-2. Mr. Dennehy left the. pump on the employee wearing
sample MD-1 for the entire shift period. He interrupted the fume
sampling at one point during the day to take a 30 minute short
term sample CT. 25>. He indicated the 30 minute sample by making
entries on his notes (Ex. P-2, P-l)(T. 27). At the end of the
shift Mr. Dennehy removed the pumps from the employees, removed the filter from each of the pumps, and sealed the cassette.
He put the cassette back into the holding tubes and returned to
his_ office in Grand Junction. He then did a post calibration of
the pumps and entered this on his presampling calibration sheet

CEx. P-1).
At the Grand Junction field office Mr. Dennehy returned the
sampling cassettes and filters to the health technician CT. 28,
29). Mr. Dennehy returned the entire sealed cassette to the
technician. The technician then sent the cassette to Denver for
analysis CT. 85, 86). Along with the cassettes was sent a
request for analysis, specifically, the analysis of the 16
elements of wel~ing fume CT. 86).

286

In response to his request, Mr. Dennehy received from the
Denver Safety and Health Technological Center, MSHA, in Denver,
an Elemental Analysis Report dated 6/5/85 <Ex. P-3)(T. 29, 86).
The report from the technology center indicated to Mr. Dennehy
that sample MD-1 contained 47.4 micrograms of vanadium. To
determine the exposure to the elements listed on Exhibit P-3, Mr.
Dennehy conducted calculations on a fume worksheet CT. 30-32) and
determined that the concentration of vanadium was .0678
milligrams per cubic meter CT. 33). Mr. Dennehy next looked in
the 1973 TLV booklet for the TLV for vanadium.
He found the TLV
to be .05 milligrams per cubic meter CT. 34). Mr. Dennehy indicated that although vanadium was listed twice in the TLV book
he used the TLV for vanadium fume be~ause the employees involved
were conducting welding which creates fumes from the vanadium
welding rod (T. 34, 49).
The .05 mg/M3 TLV for vanadium fumes is a ceiling limit. As
Mr. Dennehy indicated, a ceiling limit means that at no time
should this limit be exceeded CT. 35). Once he ascertained the
TLV for vanadium, Mr. Dennehy discussed his calculations with
Richard L. Duran, an MSHA industrial hygienist in Denver to be
certain of his calculations. Mr. Duran concurred that the
calculations were correct.
Mr. Dennehy also discussed with Mr. Duran an error factor in
the exposure.
He then calculated an error factor of 1.16; even
with this error factor the exposure was above the .05 milligrams
indicated in the TLV booklet CT. 38).
Vanadium is an element found in hard metal, in this case, in
the rods being used to weld.
Aplication of heat vaporizes the
material and if it is mixed with air or it oxidizes, vanadium
pentoxide results CT. 100). The sample taken by the Inspector
indicated the presence of vanadium; as above noted, the TLV is
stated in terms of vanadium (fume or dust) not vandiurn pentoxide
(T. 100, 102, 168). A welding operation using a rod containing V
will produce V205 CT. 34, 101). The TLV booklet indicates that
the standard for vanadium fume is .05 milligrams per cubic meter.
Here, where the value is .0678 milligrams per cubic meter of
vanadium, there would have been two and one-half times as much
vanadium pentoxide as vanadium because vanadium pentoxide is
heavier than vanadium. The value for V205, vanadium pentoxide,
would be two and one-half times as great as the value for
vanadium (T. 102). An overexposure then to .0678 milligrams per
cubic meter of vanadium would indicate an exposure to V205 at two
and a half times that amount (T. 102, 168). The TLV booklet
indicates a ceiling level of .05 for vanadium fume.
An exposure
of .0678, as in this case, is an incursion of 35 to 36 percent
over the TLV CT. 103, 159) and is in and of itself a violation of
the subject safety standard CT. 220, 223, 236, 237).
At no time did the employees tested use respirators while
engaged in welding and while the sampling was being conducted (T.
35), nor was the exhaust fan at the crusher system turned on CT.

287

35, 36) until the afternoon of the sampling day (T. 36).

Had the
exhaust fan been operating, the miner (welder) involved would not
have been over-exposed CT. 35, 36, 71).

Visible dust in the area where the sampling was conducted
was not observed by either the Inspector (T. 17) or by
Respondent's observer, Steve Findlay (T. 191, 192).
After discussing the matter with Mr. Duran, the Inspector
indicated on the Citation that the ocpurrence of the event
against which the cited standard is directed was reasonably
likely and that the injury resulting from or contemplated by the
occurrence of such event could reasonably be expected to be
"permanently disabling" (T. 38-40, 77-80). At hearing, the
Secretary abandoned the contention that any resultant injury
would be permanently disabling (T. 156).
At all times during the inspection and the conducting of the
air samples, Mr. Dennehy followed the proper procedure and used
the proper filters and equipment (T. 83, 95-96, 99, 136, 140-142,
168}. Mr. Dennehy's sample, therefore, was accurate and showed
that overexposure had occurred to at least one employee as indicated by sample MD-1 on Exhibit P-4. The sampling was conducted for vanadiumn fume which I conclude was proper in this
instance. Thus, Mr. Duran, MSHA's expert witness, testified that
during the welding process, when the materials vaporized and mix
with the air and condense, fume is produced (T. 98-99). Mr.
Duran also credibly testified with respect to the propriety of
testing for fume, to wit:

"Q. Based on Mr. Dennehy's testimony and in your opinion,
was it appropriate for Mr. Dennehy to test for fume?
A.

Yes o

Q.

Why is that?

A. The rod and the metal that's being welded in the welding
process 0 there will be material vaporized when the vapor -- and
as I indicated, when materials vaporize and mixes with the air
and condensed, it is a fumeo The welding process itself does not
produce any dust.
Q"

Just a fumeo

A.

Yes.

Q. Now, based on the testimony you heard and in your
opinion, was there a fume present?
A.

Yes.

Q. I'll r~fer your attention again to the TLV booklet that
you have in front of you. There's a listing for vanadium and
right after vanadium it says V205. Will you explain what that
indicates?
288

A.
Tbe standard is for vanadium V205, vanadium pentoxide.
But the standard is in terms of vanadium.
Not vanadium
pentoxide.
Q.

What does that mean as far as --

A.
It just simply means that in the case of welding the
standard is vanadium pentoxide. But as far as the analysis and
the concentration of air, it's all based just on vanadium. Not
vanadium pentoxide.
Q.

Okay.

How does one get vanadium pentoxide?

A.

You get it from welding.

Q.

What is it exactly?

A. Well, as I indicated, you may have, say, a metal,
vanadium, and if you heat it or in the case of welding, you
vaporize some of the material.
If it mixes with air or oxidizes,
then you can get vanadium pentoxide.

Q.

In your opinion, was vanadium pentoxide present?

A.

Yes."

(T.

99-100}.

Inspector Dennehy's testing for vanadium fume, rather than
testing for vanadium dust or some other "mixed" test, is thus
supported in the record and found to be proper (T. 34-35, 50-53,
96-99, 136-138, 140, 159, 168, 236-238).
The TLVs themselves,
being an incorporated and integral part of the safety and health
standard involved, call only for determination of either a fume
or a dust measurement.
Discussion
As one of its concerns, Respondent, citing the decision of
the Federal Mine Safety and Health Review Commission in Secretary
v. Tamrnsco, Inc. and Schmarje, 7 MSHRC 2006 (1985>v argues that
01
the law requires that a violation of 30 C.F.R. § 57.5001/5005 be
established by actual sampling and analysis." Respondent
emphasizes in its argument that exposure levels are to be determined by actual sampling, not by inference, and goes on to
argue Cl) that a reading for vanadium alone is insufficient to
sustain a finding of vanad1um pentoxide exposure, and (2) that
the law requires and MSHA must prove that the type of activity
performed by Respondent created the presence of vanadium
pentoxid~.
Respondent's contention to the contrary, the TLVs
patently contemplate the determination of vanadium pentoxide be
made by testing (sampling) either vanadium fume or vanadium dust.
CT. 100-102, 168, 236-238).
In Tamrnsco 1 supra, MSHA conducted no
sampling or testing. However, in the instant matter, the record
is clear that Inspector Dennehy's determination that the exposure

289

level exceeded the applicable TLV was based on acutal sampling
following lengthy procedures and not on inference. The differences between that proceeding and this, as well as the differences and interplay between 30 C.F.R. § 57.5001 and 5005 were
pointed out by the Commission in Tammsco, to wit:
"We agree with the judge that in order to establish a
violation of section 57.5-5, the Secretary must first prove a
violation of section 57.5-1. It is clear from the language of
the Secretary's standard that section 57.5-5 establishes an
exception to the general mandate of section 57.5-1 which requires
that airborne contaminants not exceed th~:;ir TLV, and that the
application of section 57.5-5 is conditioned specifically on a
determination that miners are exposed to excessive levels of
airborne contaminants in violation
section 57.5-1. These exposure levels are to be determined by actual sampling, not by
inference. As the judge noted, however, the citation at issue
alleges a failure to comply with a provision of the "dust control
plan", and does not allege overexposure to airborne contaminants.
We agree with the judge that the Part 57 air quality standards do
not provide for the adoption and approval of a dust control plan
which can be enforced as a mandatory health standard. Cf. Carbon
County Coal Co., 7 FMSHRC 1367, 1370 (September 1985)(discussing
the approval and adoption of dust control plans required by 30
U.S.C. § 863(0)). For this reason, and because no monitoring,
testing or sampling of employees or the atmosphere was performed
by MSHA during the inspection, the judge correctly dismissed the
proceedings." (Emphasis added).
The "exception" to the proscriptions of subsection 5001
referred to in the opening line of 5001, i.e. "Except as
permitted by§ 57.5005" is contained in the second and third
sentences of subsection 5005. These two sentences permit miners
in certain specified situations to work "for reasonable periods
of time" in concentrations of airborne contamination exceeding
permissible levels "if they are protect
by appropriate respiratory protective equipment."
In this proceeding the Secretary has established that a
miner was exposed, in violation
30 C.F.R. § 57.5001, to an
excessive level of airborne contaminant. The Secretary also
established that the miner was not wearing protective equipment
and that a ventilation fan in the area involved was not operating
for a significant part of the time that sampling was conducting
(T. 35, 36). Respondent, on the other hand, made no showing that
it was entitled to relief under the Subsection 5005 exception,
and its various contentions in this connection, being unsupported
in the record in either fact or legal authority, are rejected.
Nor does the record support the certitude in Respondent's
flat assertion (Respondent's Brief at page 5) that" ••• MSHA
mistakenly assumed that the samples taken on or near the welders
at the mine on May 15th were entirely welding fumes.
In reality,

290

vanadium dust from surface brushing entered the filter." Thus,
Respondent's chi
witness on this critical point, Steve Findlay,
on direct ~xamination, gave an "opinion" on what is a question of
fact to this effect" .•• I believe, the sample was contaminated
"(T. 186).
Subsequently on cross-examination, Mr. Findlay, with
commendable candor, significantly qualified even this opinion:
this.

"Q.
did you, on that particular day -- see if I understand
You testified that the employees were brushing the metal?
A.

Yes.

Q.

Did you see them brushing the metal?

A.

No, I didn't.

Q.

Do you know when that occurred?

A.
I'm sure that occurred prior to them doing the hard
surfacing. What would happen is they would have to -- each
teeth, like I said, the separate teeth on the grinder -- as
they're working on each one of those, the next row they go to
they probably brush it and so forth.
Clean it.
Q.

So you say they probably did that?

A.

Well, it's a standard operating procedure.

Q.
Could they brush the entire -- all of the teeth first
and then weld?

A.

That's possible, but normally that's not done.

Q.

They lift their mask when they do the grinding?

A.

They usually take off their helmets.

Q.
And they don't use any personal protective equipment
when they brush?
A.

No.

Q. And you're not saying they did any grinding on that
particular day?
A.

Not that I'm aware of.

Q. You indicated that you were in the area when the
inspector was, is that correct?
A.

The majority of the time.

291

Q.

Did you notice any dust in the air?

A.
Well, no. But, you know, you can't see dust.
Like some
micron particles of dust or micron particles, of course, you
won't be able to see.
Visual test of the dusting is not one way
to monitor the presence of dust.
Q.
I understand that.
I'm just asking if you saw anything
in the air that day that would indicate the presence of dust.
A.

1\lo.

Q.
Is it your testimony then that this brushing put dust
particles into the air?
~.

Yes.

Q.

What kind of dust particles?

That's a good possibility.

A. Well, there's shale dust, there's dust also
vanadium that's been laid on before that.

om the

Q.
I'm sorry.
Are you saying that they brushed the
vanadium that's already been laid?
~.
No. What I'm saying is they had put a surface of
vanadium on there prior.
Like I said, they've done this before.
So possibly there was surface metal there brushing and so forth.

Q.
So you're saying that the brushing then puts the dust in
the air?
A.

That 0 s a possibility.

Q.
That's a possibility.
During the welding process, if
that flame, the welding flame, hits the dust, what effect does it
have on the dust?
A.
Depending on the force of the flame,
could make it airborne.
I'm not sure.
Q.

Could it turn into a fume?

A.

The dust itself?

Q.

Yes.

A.

I wouldn't think so.

Q.

I'm sorry.

A.

I don't know.

I don't know.

No. I don't know.

You don't know or you don't think so?

292

It

Q.
You don't know.
All right.
I'm not sure I heard
exactly what you said, but you said that the samples were
word did you·use? You had an opinion as to the sampling
procedure.

what

A.
I believe what I said was the sample might have been
contaminated.
Q. Might have been contaminated.
that opinion?

And what's the basis of

A. Well, we're sampling for fume and there's a possibility
that particulates could have ended in the filter.
Q. Would those particulates have entered the filter while
they had their masks down? Their welding masks.

A.

I don't see how.

Q. So it would have been during the time they had taken
their -- are they called masks or shields?
A.

Hoods.

Q.

Hoods.

During the time they took those hoods off?

A. Right. The shades on those are so dark that it would be
quite impossible to do any work outside of welding using that
torch with the hood on. You just couldn't see.
Q.
I believe you told me that you didn't stay with these
welders all day as the inspector didn't stay with them.

A.

Right.

Q. And did you see how often or were you able to observe
how often they had their hoods on or off?
A. No. The only time I observed it, of course, was when I
went up to change my filters.

Q.

What were they doing when you changed your filters?

A. Mr. Everett, I believe, was sitting -- I was talking to
him for a while.
He was changing some rods.
And he was talking
about taking a break. It was close to 2:00 o'clock. And I
didn't observe him doing anything else.
Q.

Did you observe them welding during the day?

A.

Yes.

Q.

Did you observe them doing any brushing during the day?

293

A.

Not that I can recall.

Q.
Now, you indicated that in your opinion -- correct me if
I'm wrong.
In your opinion the sample might have been
contaminated.
A.

Yes.

Q.

Contaminated with

A.

Particulates.

Q.

Particulates.

Now I understand you're not a c'hemist,

right?
~.

Right.

Q.
Do you know if that has any effect on the analysis that
is done?
A.
It could.
I mean, if you have vanadium from other
sources it could have an effect because what you're measuring on
the analytical is the total vanadium. You can't distinguish
between one that's coming from a fume and one that's not. (T.
190-195)." (Emphasis supplied.)
On the basis of the speculative nature of this evidence, and
in the absence of testimony from other witnesses having actual
knowledge with respect to dust being present, the quantities
thereof, as well as the specific effect if any, such would have
on the sampling results, I am unable to find, as Respondent
urges, that the Inspector's vanadium fume testing procedures were
defective or that the results thereof were invalid as to sample
number MD-1 <Ex. P-2).
I jhave previously determined that the
Inspector's choice to sample for vanadium fume - rather than v
dust - was proper and justified in the record.
From evaluation
of Mr. Findlay's testimony-and the remainder of the record-one is
constrained to conclude that Respondent did not establish by
probative evidence that dust, in any amount, entered the sampling
filter employed by Inspector Dennehy.
In any event, Respondent
did not establish what, if any, amount of dust entering the
sampling filter would vitiate the result of Inspector Dennehy's
testing.
Although Respondent makes various attacks on the validity of
the Secretary's testing procedures, the record is bereft of the
required factual and/or legal foundations therefor.
It appearing
that the Secretary has established by a preponderance of the
reliable and probative evidence that a miner was exposed to a
level of airborne contaminant in excess of the applicable TLV, a
violation of 30 C.F.R. § 57.5001 is found to have occurred.

294

The queBtion remains whether this was an S & S violation,
that is, whether it is of such nature as could significantly and
substantially contribute to the cause and effect of amine safety
or health hazard.
A violation is properly designated,S & S "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

In Mathies Coal Co., 6 FMSHRC 1 (1984), the Commission
listed four elements of proof for S & S violations:

In order to establish that a violation of a mandatory
safety standard is significant 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--contributed to by the violation; (3) a reasonab
likelihood that the hazard contributed to will result
in•an injury; and (4) a reasonable likelihood that the
injury in question will be a reasonably serious nature.
In the United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129 (1985) the Commission expounded thereon as follows:
We have explained further 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).
We have emphasized that, in accordance with the language
of section 104(d)(l), it is the contribution of a violation
to the cause and effect of a hazard that must be significant
and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company, Inc.,
6 FMSHRC 1573, 1574-75 (July 1984).
I have previously found that a violation occurred.
It is
also determined on the basis of my prior findings that a measure
of danger to safety, or in this matter, health, was contributed
to by the violation. The primary issue raised is whether the
Secretary established that there existed a reasonable likelihood
that the hazard contributed to would result in an injury
(illness).
Inspector Dennehy indicated in the Citation that an overexposure was reasonably likely to occur.
Inspector Dennehy, at
hearing, expressed a belief this event was reasonably likely to
occur because the operator did not provide ventilation at the
site of the welding, nor did they provide respirators to the

295

employees who were conducting the welding.
As part of the
process of completing the citation Inspector Dennehy discussed
this finding with Mr. Duran, as well as the part of the citation
where he indicated that an injury could occur that might be
permanently disabling.
Mr. Duran indicated that the symptoms resulting from an
overexposure to vanadium "could" create serious health hazards
CT. 105, 106). His opinion was based on the fact that bronchial
irritation could occur, as well as possible penumonia or asthma
(T. 106). Another possible ef feet of vanadium overexposure,
depending on the individual, is that such an employee could
become "sensitized" meaning that after being ex.P.osed on one
occasion he might experience more severe symptoms with the next
exposure at the same-or even lower-concentration (T. 10&-111).
Mr. ·Duran indicated that an incursion of 35 percent over the TLV
would be an exposure of a "moderate" level (T. 109-110). Mr.
Duran indicated that while symptoms would vary from person to
person an employee exposed to vanadium at a certain level "might"
develop symptoms (Tr. 110). He said an employee exposed to .0678
milligrams per cubic meter of vanadium "could" develop a cough,
sore throat and have trouble breathing and he could also develop
symptoms similar to those encountered with the flu (T. 110, 111).
Such symptoms "could" result in lost workdays and, in Mr. Duran's
opinion on this point, which I credit, these would be relatively
serious illnesses (T. 111).
Close scrutiny of Mr. Duran's testimony in connection with
the "likelihood" of an injury or illness occurring reveals it to
be of the same speculative complexion previously attributed to
Mr. Findlay's testimony respect to the possible contamination of
the sampling filters.
In contradiction of Mr. Duran's opinion, Respondent's expert
witness, Dr. Paul Ferguson, a toxicologist, gave as general
opinions that an .0678 exposure to vanadium fume would not cause
an injury resulting in lost work days, that there was not a
reasonable likelihood that such an exposure would result in an
illness, and that there was not a reasonable likelihood that any
resulting illness would be of a reasonably serious nature (T.
215-217).
In support of his opinion relating to the probability or
likelihood that such (.0678 V fume) exposure would result in an
illness Dr. Ferguson provided the following rationale:
"A.
Based on the scientific literature, .1 milligrams per
cubic meter.is the lowest level where we see symptoms. They're
not debilitating symptoms, but an individual will have a slight
irritation and have some coughing. That can be defined as an
illness. We don't want to allow our workers to be exposed to
levels -- how minor do cause symptoms. Above that, the symptoms
progress severely. the .05 limit includes a safety factor that
to the best of our knowledge, would provide no symptoms. There

296

are no specific scientific literature that tested men and women
at .05. That lowest level is really a .1 in a controlled
experimental condition by Zenz and Berg is what the TLV is based
on and they have that as a safety factor.
Q.
So you would attribute the difference then to a margin
of safety allowed by the drafters of the TLV's.
A.

Yes."

(T. 237, 238).

Dr. Ferguson's opinion that there was not a reasonable
likelihood of an injury (illness) occuring at the level of
exposure detected by Inspector Dennehy is, in view of its
positive and convincing tenor and supportive rationale, accepted.
Such is deemed to rebut and overcome any presumption to the
contrary. See Consolidation Coal ~ompany, 8 FMSHRC 890 (1986).
Accordingly, it is concluded that the violation is not S & S.
PENALTY ASSESSMENT
The Secretary proposes a penalty of $112.00 which in his
post-hearing brief the Secretary concedes takes into consideration a low degree of gravity. Other mandatory penalty
assessment criteria were the subject of stipulation by the
parties at t
hearing (T. 4), and based thereon it is found that
Respondent is a large mine operator, that payment of a penalty at
the monetary level urged by the Secretary will not jeopardize
Respondent's ability to continue in business, and that
Respondent, after notification of the violation, proceeded in
good faith to achieve rapid compliance with the subject safety
and health standard. The computerized printout submitted by the
Secretary as evidence of Respondent's history of prior violations
for the 2 year period preceding the issuance of the Citation involved here reflects that Respondent committed 12 violations
during such period.
With respect to the remaining mandatory penalty assessment
criterion, negligence, the Secretary's apparent theory is that
Respondent negligently failed (a) to provide the subject miner
with respiratory protective equipment, and (b) turn on an exhaust
fan in the area where the welding was being conducted. Would the
fan, in the terms of the standard, 30 C.F.R. § 57.5005, have removed the airborne contaminants by "exhaust ventilation" or have
controlled employee exposure by "dilution with uncontaminated
air"? According to the Inspector, if the fan had been operating,
the welders would not have been "exposed whatsoever" (T. 36).
The provision specifically requiring protective respiratory
equipment is applicable only where the 5005 exception to 30
C.F.R. § 57.5001 is claimed or established by the respondent mine
operator.
Such is not the case here.
While I am unable to fully fathom the Secretary's theory of
negligence, it does appear, insofar as the welders were allowed
to conduct welding with the exhaust fan turned off, that
respondent was negligent in this regard.
According to the
Inspector, employment of the exhaust fan would have alleviated

297

the overexposure.
Respondent did not rebut this evidence; nor
did it claim or show any reason why the fan could not have been
turned on, or otherwise present any justification, such as lack
of awareness, for this nonfeasance.
I infer from the facts that
Cl) such an engineering control measure (exhaust fan) was available and (2) that such was in fact operated in the afternoon of
the sampling day, that this measure could have been utilized
prior thereto on the inspection day to prevent the overexposure
documented by the Inspector and that Respondent was negligent in
not doing so.

On the basis
the foregoing considerations a penalty of
$75.00 is found appropriate and is assessed.
ORDER

1. Citation No. 2355268 is modified to delete that portion
thereof alleging that the violation charged is "Significant and
Substantial" and affirmed in all other respects.
2. Respondent shall pay the Secretary of Labor within 30
days from the date hereof the sum of $75.00 as and for a civil
penalty.

/tf~4,/ ~ J!t:~~>t/!

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>
Anthony D. Weber; Esq., Union Oil Company of California, 461
South Boglston Streetr Room 1123, Los Angeles, CA 90017
(Certified Mai 1 i

/bls

298

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

FEB 131987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 86-288·
A. C. No. 36-06289-03513

v.

Solar No. 10 Mine

SOLAR FUEL COMPANY, INC.,
Respondent
DECISION
Appearances:

Susan M. Jordan, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner;
David c. Klementik, Esq., President, Solar Fuel
Company, Inc., Friedens, Pennsylvania, for
Respondent.

Before:

Judge Maurer

This case is before me upon the petition for civil penalty filed by the Secretary of Labor pursuant to section 105(d}
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq., the "Act," for alleged violations of regulatorv
standards-.~The general issues before me are whether the Solar
Fuel Company (Solar) has violated the cited regulatory standards and, if so, what is the appropriate civil penalty to be
assessed in accordance with section llO(i) of the Act. Additional issues are also addressed in this decision as they relate to specific citations.
The case was heard in Pittsburgh, Pennsylvania, on
January 8, 1987.
Both parties waived the filing of posthearing brie
STIPULATIONS
The parties stipulated to the following (Tr. 7-8):
1. The Solar No. 10 Mine is owned and operated by the
respondent, Solar Fuel Company, Inc.
2.
The Solar No. 10 Mine is subject to the jurisdiction
of the Federal Mine Safety and Health Act of 1977.
3.
The presiding Administrative Law Judge has jurisdiction pursuant to section 105 of the Act.

299

4.
The citations and their terminations involved herein
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.
5. The parties stipulate to the authenticity of their
exhibits but not to the relevancy of the truth asserted therein.

6. All of the alleged violations have been abated within
a timely fashion.
7.
The total production of Solar No. 10 Mine is between
50,000 and 100,000 tons of coal per year.
8.
The Solar No. 10 Mine began operations in March of
1986. The three violations at issue were the first violations
cited at the mine.
There are no previous violations.

Citation No. 2694689
The Secretary, by counsel, has moved to vacate this c
tion and withdraw the civil penalty assessed thereon.
I
granted this motion on the record at the hearing of this case
(Tr. 5).
Citation No. 2694571
At the hearing and on the record, the Secretary moved to
modify this citation to remove the "significant and substantial" allegation and the respondent, of course, did not object.
I granted the motion (Tr. 9).
This section 104(a) citation alleged a violation of 30 C.F.R. § 77.0516 and the respondent later admitted the violation (Tr. 60}.
Under the
circumstances, I conclude that a civil penalty in the amount
of $25 is appropriate under the criteria set forth in section
llO(i) of the Act.
Citation No. 2
This citation al
s a "significant and substantial"
violation of the _regulatory standard at 30 C.F.R. § 75.1002-l(a)
and al
s as follows:
Two pieces of non-permissible electric equipment
were found to be located within 150 feet from
pillar workings (cave). A G.E. safety switch
manual control on/off breaker box used to supDly
power to the conveyer head and an Allen Br~dley
metal control box used to supply power to the
JABCO box which is
to start and stop the pan

300

line and conveyor head automatically were found to
be in a non-permissible condition in that openings
iti excess of .009 of an inch were found in both
boxes.
Both of these non-permissible boxes were
located in the No. 14 room of the 2 right section
o
of the 1st South mains (003) section. These
boxes were found to be located approximately 82
feet from pillar workings.
The pillared area was
located in the No. 2 room and such measurements
were taken from the toe of the fall to the nonpermissible boxes.
Line brattice was being used
to separate the No. 13 room from the No. 14 room.
The cited standard requires as relevant hereto that electrical equipment must be permissible and maintained in a permissible condition when located within 150 feet of pillar
workings.
The factual testimony of MSHA Inspector Joseph
Trybus to the effect that two pieces of nonpermissible electrical equipment were located approximately 82 feet from such
pillared workings is not disputed.
The two pieces of equipment cited by the inspector were
safety switch control boxes and he testified that the hazard
he was concerned with would be methane entering these nonperrnissible boxes and a random spark causing an explosion.
He further testified that although he detected no methane at
the time of his inspection, there is always the possibility
of the
reversing itself in the mine or the possibility
of the
r not getting to a certain area which could cause a
methane build-up and which could in turn enter the nonpermissible equipment.
In the event of a methane explosion, he would expect it
to be reasonably likely that serious to fatal injuries would
occur to persons working in that area.
There were approx~
mately seven men working on this section at the time.
I find that the facts of this violation are not seriously in dispute and the violation is accordingly proven as
charged.
Within this framework of unrebutted evidence it
may also reasonably be in
that this condition constituted a "significant and substantial" violation of the cited
standard.
See Secretary v. Math s Coal
, 6 FMSHRC 1
(1984).
violation was acco
ng
a so o a serious
nature.
Moderate negligence may also reasonably be inferred
from the circumstances. The area of the mine is frequently
examined and management knew or at least should have known
of the non-permissible condition of these boxes and their
distance
the pillar workings.

301

Considering the statutory criteria contained in section
llO(i) of the Act, I find that a civil penaltv of $126, as
proposed, is warranted.
Citation No. 2694573
This citation alleges a "significant and substantial"
violation of the regulatory standard at 30 C.F.Ro § 75.301
and alleges as follows:
The quantity of air reaching ·the last open crosscut between the Nos. 2 and 1 rooms of the 3 right
butt off of 1st South (005) section as measured
with a Taylor anenometer and watch was found to
be only 7,200 cubic feet a minute.
The law requires that the minimum quantity of a
reaching
the last open crosscut in any pair or set of developing rooms shall be 9,000 cubic feet a minute.
Once again, the respondent does not dispute the facts
alleged in the citation (Tr. 44) and since those facts, if
true, amount to a violation of the cited standard, I find
that the violation, as charged, is proven.
The inspector marked this as a "significant and substantial" violation because of the possibility of fumes, gases,
respirable dust, methane and smoke entering the intake air
and the further possibility of an ignition source from nonpermissible equipment operating on the section.
The result,
he testified, could be an explosion.
There were three men
working on the section at that time.
The respondent doesn't believe that the violation should
be classified "S&S" because their position is that the drop
in airflow was of a temporary nature, caused by a displaced
line brattice.
However, I note Mr. Klementik had no knowledge of when i t was dislodged or how long it had been out of
place prior to the inspector's writing the citation"
I fully credit the factual and opinion testimony of
Jnspector Trybus on the significance of this violation and
in light of the seriousness of the injuries that could reasonably have been caused by the lack of
reaching the last
open crosscut between the rooms cited, I find the violation
was "significant and substantial. 11 Mathies, supra.
I have considered the criteria in section llO(i) of the
Act and I conclude that the proposed civil penalty of $54 is
appropriate.

302

ORDER
Solar Fuel Company, Inc., is hereby ordered to pay the
following civil penalties within 30 days of the date of this
decision:
Citation No.

Amount

2694571
2694572
2694573
2694689

$ 25
$126
$ 54
Vacated
Total:

$205

aurer
'strative Law Judge

Distribution:
Susan M. Jordan, Esq., Office of the Solicitor, U. s. Department
of Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
David C. Klementik,
. , President, Solar Fuel Co., Inc. ,
#1, Friedens, PA 15541 (Certified Mail)

yh

303

~.

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

FEB 13 1987
CHARLES F. ROSE,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. WEVA 86-379-D
MORG CD 86-11

CONSOLIDATION COAL COMPANY,
Respondent

Pursglove No. 15 Mine

.
0

SUPPLEMENTAL DECISION
Before:

Judge Weisberger .

In my Decision in this matter, issued on January 12, 1987, I
directed counsel to submit to me a statement of their agreement
as to amounts owed to Complainant by Respondent pursuant to
paragraphs 3. and 4. of my Decision.
On January 28, 1987, Complainant filed a statement that the
had reached an agreement as to the amounts owed
Complainant pursuant to paragraphs 3o and. 4. of my Decision.
Pa~ties

It is therefore ORDERED thatg
1. Within 30 days Respondent shall pay Complainant $775.25
as legal fees and costs and $787.88 as the amount due Complainant
pursuant to paragraph 4. of my Decision of January 12, 1987.
2~

My Decision of January 12, 1987 is NOW final.

(€__.~~.
I

~

Avarm Weisberger
Administrative Law Judge

304

Distribution:
Mr. Charles F. Rose, R. D. #1, Box 6, Spraggs, PA 15362
(Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)

dcp

305

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

80204

FEB 13 1987

LEON~RDO

R. LAMAS,
Complainant

DISCRIMINATION PROCEEDING

Docket No. WEST 86-99-DM
MD 85-45

v.
DUVAL CORPORATION,
Respondent

DECISION
Appearances:

Leonardo R. Lamas, 'l'ucson, Arizona,
pro se;
G. Starr Rounds, Esq., Evans, Kitchell & ~enckes,
Phoenix, Arizona,
for Respondent.

Before:

Judge Lasher

This proceeding, which was initiated by the filing with the
Federal Mine Safety and Health Review Commission of a complaint
of discrimination by Leonardo R. Lamas (herein "the Complainant")
on March 24, 1986, arises under Section 105Cc} of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq.,
( 1982) <herein "the Act") •

By letter dated February 28, 1986, the Complainant had been
notified that his complaint before the Labor Department's Mine
Safety and Health Administration (MSHA), which was filed on an
indeterminate date in October, 1985 had been investigated and the
determination made that a violation of Section 105(c) of the Act
had not occurred. Under the Act, a complaining miner has an
independent right to bring a second complaint before this .Commission and this proceeding is based on that right.
On August 11, 1986, the Respondent filed a motion for
summary judgment alleging inter alia that the complaint was not
timely filed since it was filed iTlC.>re than 60 days-approximately 2
years-after the last alleged discriminatory action of Respondent,
i.e., the termination of Complainant's employment on August 21,
1983.
A preliminary hearing to determine the issues raised by the
motion to dismiss was held on the record in Tucson, Arizona, on

306

November 19, 1986, at which Complainant l; and Harlen Klemetson,
a former official of Respondent, testified.
The record herein reflects that on August 21, 1981,
Complainant was placed on a disability leave status by Respondent
because he was unable to perform his duties and his doctors would
not release him for work. Two years later, on August 21, 1983,
Complainant was terminated pursuant to Article IV, Section 3(2)
of the pertinent collective bargaining agreement.
Complainant's
complaint with MSHA was filed sometime in October, 1985 (Ex. C-1~
T. 17). Thereafter, by letter dated February 28, 1986, Complainant was advised by a Labor Department official that on the
basis of MSHA's review "MSHA has determined that the facts disclosed during the investigation do not constitute a violation of
Section 105(c)."
After Complainant's termination, Respondent heard nothing
further regarding such termination until sometime in about midOctober, 1985 when it was informed by MSHA that Complainant had
filed a complainant alleging discrimination CT. 17-20; Ex. R-1).
In early 1986, Respondent sold its Arizona operations. As a
result, it retained only three of its employees who have been
assisting in the transition but whose relationship with Duval
will soon end CT. ,24-26). All of the potential witnesses either
expressly named by Lamas in his Complaint or necessarily involved
in events described by or affecting Lamas are no longer employed
by Duval. Aside from outside doctors to whom Lamas was referred,
these potential witnesses include a number of his foremen, safety
supervisors, individuals involved in decisions regarding massive
layoffs, recalls, and the handling and distribution of benefits,
the directors of personnel and labor relations, their assistants
and others {T" 25-29; Ex. C-1).
Section 105(c) of the Act, 30 U.S.C. § 815(c)(2), states, in

pertinent part:
"Any miner ... who believes that he has been discharged,
interfered_with, or otherwise discriminated against by
any person in violation of this subsection may, within 60
days after such violation occurs, file a complaint with
the Secretary alleging such discrimination." (Emphasis
added)o

11

Complainant noted at the commencement of the hearing that
there was no interpreter present. It' appeared, however, that he
understood English, understood the questions asked him by readily
answering them, was perfectly able to ask questions himself, and
that he had a keen grasp of the hearing situation and of the
subleties and complexities of the matters involved in the
hearing.

307

The MSHA complaint having been filed in October 1985, there
is no question but that it was filed with the Secretary more than
2 years beyond the 60-day period prescribed in section 105Cc) of
the Act.
The Commission has held that while the purpose of the 60-day
time limit is to avoid stale claims, a miner's late filing may be
ecused on the basis of "justifiable circumstances," Joseph W.
Herman v. IMCO Services, 4 FMSHRC 2135 (December 1982). The Mine
Act's legislative history relevant to the 60-day time limit
states:
While this time-limit is necessary .to avoid stale claims
being brought, it should not be construed strictly where
the filing of a complaint is delayed under justifiable
circumstances. Circumstances which could warrant the
extension of the time-limit would include a case where
the miner within the 60-day period brings the complaint to
the attention of another agency or to his employer, or the
miner fails to meet the time limit because he is misled as
to or misunderstands his rights under the Act. S. Rep. No.
181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 624 (1978) (emphasis
added) .
Timeliness questions therefore must be resolved on a
case-by-case basis, taking into account the unique circumstances
of each situation.
After considering the testimony, exhibits, and arguments
submitted by the parties, it is concluded that the Respondent's
position in seeking dismissal is meritorious.
Complainant 1 s attempted justification for the delay is in
the form of a barren assertion that he was engaged in a Workmen's
Compensation matter and that "the lawyers and the people" from
MSHA, and MSHA Inspector Pascoe, had advised him "to wait and see
the results" CT: 17>. In light of his entire testimony and
Respondent 9 s rebuttal evidence, I find Complainant's assertions
incredible, vague~ and not probative. Thus, Complainant Lamas
admits that prior to his termination in August 1983, he had
several conversations with MSHA representatives in its Tucson
office (T. 18). Further, he concedes that he knew he had 60 or
65 days within which to file a complaint regarding his termination and that this time began to run as of August 21, 1983, the
date of his termination and the date Complainant put on the face
of the complaint as Respondent's last act of discrimination (See
Complainant's deposition, Ex. R-1, at pp. 9-10, 68-69; Attachment
No. l to R-1: T. 18-19, 36-39).
Although it would appear that a complainant should first be
required to establish a recognizable and believable justification
for a filing delay beyond the 60-day period before any burden

308

devolves on a mine operator to show prejudice therefrom, the
record nonetheless lends support to Respondent's claim that because of the delay it would be prejudiced in its attempt to
defend itself from the allegations made by Complainant.
In its
brief it alleges: "Duval is barely in existence and soon will not
exist.
It retains only three employees <Ex. C-1~ T. 24, 26).
All of the alleged participants in the events cited by Lamas are
no longer employed by Duval. Those responsible for the decisions
about which he complains and who know the reasons for such
decisions, e.g., the investigation of the accident in 1979 or
1980, the transfer request, the payments granted in December,
1981 and March 1982, do not work for Duval; they, and others who
could testify about Duval's practices, are no longer its
employees (Ex. C-1; T. 24-28). Moreover, the events to which
Lamas refers occurred as early as 1979-1980; they are from about
four to seven years old (Ex. R-1). Obviously, memories dim with
the passage of years and it is Lamas' inexcusable neglect or
failure to act that has caused this situation to exist."
The 60-day statutory limitation is not a particularly long
filing period in view of the lack of sophistication of the
average Complainant and the complexity of some of the legal bases
for bringing a discrimination action. On the other hand, the
placement of limitations on the time-periods during which a
plaintiff may institute legal proceedings is primarily designed
to assure fairness to the opposing party by preventing surprises
through the revival of claims that have been allowed to slumber
until evidence has been lost, memories have faded, and witnesses
have disappeared. The theory is that even if one has a just
claim it is unjust not to put the adversary on notice to defend
within the period of limitation and that the right to be free of
stale claims in time comes to prevail over the right to prosecute
them. Where, as here, the filing delay is prolonged, ~/ it seems
a fair proposition to require (1) a clear justifiable explanation
thereforu which (2) is supported in the record by substantial and
reliable evidence.
The considerable length of the time lapse here as well as
the bald, inherently dubious, unreliable basis asserted for the
delay mandate the conclusion that such delay in filing the
complaint was not justified.
ORDER
Respondent 1 s motion to dismiss is granted and this
proceeding is dismissed.

. *'

v~~~jf:
/21.

-~

'~?/(
y

, ..

Michael A. Lasher, ~t.
Administrative Law Judge

~/

This is not the situation sometimes seen where the complaint
was filed a few days, or even a month, late.

309

Distribution:
Mr. Leonardo R. Lamas, 2010 West Sindle Place, Tucson, AZ
(Certified Mail)
G. Starr Rounds, Esq., Evans, Kitchel & Jenckes, 2600 North
Central Avenue, Phoenix, AZ 85004-3099 (Certified Mail)

/bls

310

85746

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB 171987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. VA 86-10
A.C. No. 44-06269-03501

v.
Docket No. VA 86-15
A.C. No. 44-06269-03502

ELK CREEK COAL CORPORATION,
Respondent

Docket No. VA 86-37
A.C. No. 44-06269-03505
No. 1 Mine
DECISION
Appearances:

Sheila K. Cronan, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Greg Mullins, President, Elk Creek Coal Corp.,
Grundy, Virginia, for Respondent.

Be

Judge Melick

e:
Thes~

cases are before me upon the petitions for civil
filed by the Secretary of Labor pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et. ~, the 11 Act,n for ten alleged violations
of regulatory standards. The general issues before me are
whether the Elk Creek Coal Corporation (Elk Creek) violated
the cited regulatory standards and, if soff whether the violat
ns were of such a nature as could significantly and substant lly contribute to the cause and effect of a mine
saf
or health hazard i e., whether the violations were
nsignificant and
"
If violations are found it
will als6 be necessary to determine the appropriate civil
penalty to be assessed in accordance with section llQ(i) of
the .l\ct.

Citation No. 2763732 charges a violation of the standard
at 30 C.F.R. § 77.1001 and reads as follows:
Loose, heavy material was present on the highwall
between the right hand side of the No. 2 portal and
the left hand side of the No. 4 portal. The highwall had not been stripped, sloped or benched in

311

any manner to correct this condition. This condition was one of the factors that contributed to the
issuance of immenent [sic] danger order No. 2763731,
dated 12-3-85; therefore no abatement time was set.
The cited standard, 30 C.F.R. § 77.1001, requires that
"[l]oose hazardous material shall be stripped for a safe
distance from the top of pit or highwalls, and the loose
unconsolidated material shall be sloped to the angle of
repose, or barriers, baffle boards, screens, or other devices
be provided that afford equivalent protection."
The testimony of MSHA Inspector Larry E. Brown in support
of the cited violation is, in essential respects, undisputed.
During the course Df performing an electrical inspection at a
new high voltage substation at the subject mine on December 3,
1985, Brown observed loose material on the highwall. The
material consisted of different sized rock - from hand size
to about one half the size of a chair - beginning some 25
feet up the highwall extending to the top. In particular he
observed loose material between the No. 2 and No. 4 entries
where the highwall was 80 to 85 feet "straight up." Brown
also observed a scoop operating beneath this area of loose
material.
In defense, Greg Mullins, President of Elk Creek
testified that an inspector had examined the highwall on
November 14, 1985, and had "approved it." Even assuming
however that the highwall conditions were acceptable on
November 14, 1985, that is no defense to violative conditions
existing on December 3, 1985. Accordingly the violation is
proven as charged. The "significant and substantialn
findings, the likelihood of serious injuries and the moderate
negligence found by the inspector are substantiated by the
record and are not disputed.
Citation No. 2763733 charges a violation of the
operatorus temporary roof control plan under the standard at
30 C.F.R. § 75.200 and states as follows:
A cut of coal had been taken from the No. 3 entry
and a canopy had not been installed over the portal.
The roof control plan requires that canopies be
installed prior to the start of mining operations.
This condition was one of the factors that contributed to the issuance of imminent danger order No.
2763731, dated 12-3-85; therefore no abatement time
was set.
The cited roof control plan then in effect provides in
relevant part that: "[m]ining shall commence under a substantially constructed canopy of sufficient size to protect

312

the workmen from falling material." According to Inspector
Brown, work had been performed in the entry,including roof
bolting, the installation of supports and the removal of coal.
He accordingly surmised that a number of employees must have
passed beneath the highwall and would have been exposed to
the danger of falling rock.
In defense, Greg Mullins testified that at the time work
was being performed in the entry a portable canopy was erected
and provided adequate protection for the miners. Mullins
noted that no one was seen by the Inspector working in the
cited entry and construction material was present from which
the portable canopy had been built. Mr. Mullins' testimony
in this regard is undisputed and accordingly I cannot find
that the violation has been proven as charged. Citation No.
2763733 is therefore dismissed.
Citation No. 2763734 alleges a "significant and substantial" violation of the standard at 30 C.F.R. § 77.1005
and charges as follows:
Coal was being stockpiled against the highwall
between Nos. 2 and 3 portals and loose material had
not been removed from the highwall. This condition
was one of the factors that contributed to the
issµance of imminent danger order No. 2763731,
dated 12-3-85; therefore no abatement time was set.
The cited standard provides in relevant part as follows:
Hazardous areas shall be scaled before any other
work is performed in the hazardous area. When
scaling of highwalls is necessary to correct
conditions that are hazardous to persons in the
area, a safe means shall be provided for performing
such work.
According to Inspector Brown, work was being performed
beneath the highwall between the No. 2 and No. 3 portals and
coal was being stockpiled. According to Brown two persons
were subject to fatal injuries from rock falls. One was
operating an endloader removing coal and another was piling
the coal with a scoop.
Brown observed that the condition of
the highwall could further deteriorate over a short period of
time because of weathering, temperature changes and the
extraction of coal from ~he entries beneath.
Mullins again claims that an inspector had examined the
cited highwall on November 14, 1985 and had "approved it."
This evidence does not however provide a defense for violative conditions existing on December 3, 1985.

313

Accordingly the undisputed testimony of Inspector Brown
amply supports the •significant and substantial" violation as
charged. The undisputed evidence also supports a finding of
high gravity. and moderate negligence. The cited conditions
were in plain view.
Brown's testimony is also fully corroborated by the testimony of MSHA Inspector Luther Ward who was
also present when.Brown issued this citation.
Citation No. 2763639 alleges a "significant and substantial" violation of the standard at 30 C.F.R. § 77.1001
and reads as follows:
Loose hazardous material, (rock). was present on the
highwall beginning approximately 5 feet to the
right of the No. 2 drift opening and extending to
the far right side of the No. 4 drift opening. The
highwall ranges from approximately 50 feet high to
approximately 80 feet high. This violation is a
ccintributing factor to the issuance of 107.A order
no. 2763638 dated 2/19/86. Therefore, a termination due .date is not given.
MSHA Special Investigator Carl Coleman was performing a
spot inspection on February 19, 1986, when he discovered the
cited conditions.
Based on his observations he opined that
the loose material on the highwall could fall and strike
miners working below. He observed that wood and rock dust
had been stored along the base of the highwall and a trailing
cable ran along the base of the highwall, therefore making it
highly likely that miners would be exposed to the danger of
the rocks falling. According to Coleman a rock falling from
50 to 80 feet could cause fatal injuries. He felt that the
dangerous conditions were obvious and should have been discovered during the required daily examination.
In defense, Mullins again observed that the highwall had
been inspected on November 14, 1985, and had then been
"approved." This evidence is not a defense to the conditions
existing more than 3 months later however.
In the absence of
any contradictory evidence I accept the testimony of Inspector Coleman and find that the "significant and substantial"
violation is proven as charged, that the violation was of
high gravity and it was the result of operator negligence.
Citation No. 2762857 alleges a "significant and substantial" violation of the operator's roof control plan under
the standard at 30 C.F.R. § 75.200 and charges as follows:
The approved roof control plan was not complied
with in the No. 2 and No. 4 entries on the 001
active section for installation of the resin
grouted roof bolts. The crosswise spacing of the
installed roof bolts in several difference [sic]

314

locations measured to 53 inches to 66 inches wide.
The approved roof control plan requires that roof
bolt spacing be 48 inches wide beginning at portal
and extending underground the approximate distance
of 60 feet.
The charges are based upon the diagram on pages 14 and
15 of the operator's roof control plan (Exhibit G-4) showing
a 4-foot by 4-foot crosswise spacing of roof bolts.
According to MSHA Inspector Ronald Matney the roof bolts he
found on December 10, 1985, were indeed in excess of that
requirement.
According to Matney the entry had been driven some 60
feet in the No. 2 and No. 4 headings and approximately 20
rows of roof bolts had been installed with 4 roof bolts in a
row. Approximately 20 bolts in each entry exceeded the plan
requirement. Matney believed this condition to be particularly hazardous because of the shaley slate roof and because
of the nearby outcropping.
It is not disputed that with the
excess spacing between roof bolts loose rock could fall on
miners resulting in very serious injuries.
By December 17,
the condition had been completely abated.
In defense Mullins testified only that he never "saw"
any bolts more than 48 inches apart. The fact that Mullins
failed to see the violative conditions is no defense. The
undisputed evidence clearly supports this "significant and
subst"antial" violation and the negligence associated therewith.
Citation No. 2762858 alleges a "significant and substant l" violation of the operator's roof control plan under
the standard at 30 C.F.R. § 75.200 and charges as follows:
The approved roof control plan was not complied
with on the 001 section in the No. 4 entry in that
the entry width was measured to be 20 feet wide for
the distance of approximately 20 feet beginning at
approximately 40 feet inby portal and extending
underground the distance of approximately 20 feet.
The approved roof control plan requires that width
for entry be 16 feet.
The testimony of Inspector Matney in support of this
violation is alao undisputed. The roof control plan (page
14, Exhibit G-4) requires the entry to be no more than 16
feet wide. Here it is not disputed that the entry was 20
feet wide for a linear distance of 20 feet at a point 40 feet
inby the portal. Coleman opined that under the circumstances
a roof fall would be reasonably likely and result in serious
injuries. The condition was abated by the installation of
cribs on December 12.

315

In defense, Mullins testified that he had placed 8
timbers in the cited area to reduce the entry width to 16
feet.
Mullins admitted however that the roof control plan
requires cribbing and that timbers are not sufficient. Under
the circumstances the "significant and substantial" violation
is proven as charged.
I find some reduction in the gravity
of the offense due to the fact that Mullins had placed some
timbers in the entry in some effort to remedy the violation.
The violation was the result of gross operator negligence
however for knowingly violating a provision of the roof
control plan.
Citation No. 2762859 alleges a violation of the standard
at 30 C.F.R. § 75.1713-2 and charges as follows:

A communication system, telephone or other means of
prompt communication were not established from the
mine to the nearest point of medical assistance for
use in an event of an emergency.
The cited standard provides as follows:

(a) Each operator of an undergrounQ coal mine shall
establish and maintain a communications system from
the mine to the nearest point of medical assistance
for use in an emergency.
(b) The emergency communications system required to be maintained under paragraph (a) of this section 75.1713.2 may be established by telephone or radio transmission or any
other means of prompt communication to any facility
(for example, the local sheriff, the state highway
patrol, or local hospital) which has available the
means of communication with the person or persons
providing medical assistance or transportation in
accordance with the provisions of section 75.1713.l.
According to Inspector Coleman there indeed was no communic3. tion system at Elk Creek meeting the noted requirements.
Moreover the on-site Supervisor, George Owens, admitted that
he did not have a communications system. According to
Coleman there was a telephone within 1-1/2 miles of the mine
site and since the mine had not been developed very far,
medical assistance could have been obtained "pretty fast."
Accor ng to Mullins there was also a "CB" radio in a
pickup truck that was always parked at the mine. Mullins did
not however establish that the "CB" provided a method of communication to a requisite medical or other emergency facility
as required by the cited standard. Mullins disagreed with
Matney and claimed that the nearby mine having a telephone
was located only 1,000
away.
Under the circumstances
however I believe that the violation is proven as charged but
was of minimal gravity and the result of little negligence.

316

Citation No. 2762860 alleges a violation of the standard
at 30 C.F.R. § 75.313 and charges that "the S and S scoop
serial No. 482-1567 was being used in the face area of the
No. 2 entry without a methane monitor."
The cited standard, 30 C.F.R. § 75.313, requires in
essence that an approved methane monitor be installed on any
electric face equipment and that such monitor be kept operative, properly maintained and frequently tested. According
to Coleman the cited scoop was bei~g used as a loading
machine and had no methane monitor. He felt that the violation was not "significant and substantial" because the mine
was new (having been developed only 60 feet underground) and
there had never been any methane found therein,
In defense Greg Mullins testified that he "didn't think"
the scoop was in operation. Under the circumstances this
moderately serious violation is proven as charged. Since
management had to authorize the use of the cited equipment it
clearly knew of the violative condition. Accordingly I find
the violation was the result of operator negligence.
Citation No. 2763482 alleges a "significant and substantial" violation of the standard at 30 C.F.R. § 48.6 and
charges in relevant part as follows:
Burl Vires • . •
employed underground on the 001 section as a roof bolt
operator has not received the newly employed experienced
miner training." Citation No. 2763484 similarly charges that
employee Blane Owens had not received the newly employed
experienced miner training.
According to Inspector Coleman both employees admitted
that they had not been given any training. According to
Coleman employees not having received such training might not
be familiar with the roof control plan, the
ectrical and
other equipment, and the availability of emergency communications systems. He was particularly concerned that the new
employees would not be trained in the spacing of roof bolts
and the necessi
of supplemental support, and f
t that this
deficiency would reasonably likely lead to serious injuries.
In defense Mullins testif i
that both employees had
received training at previous mining jobs and that in
they had been given training at Elk Creek. According to
Mullins they were merely unable to produce the corresponding
training certificates. I do not however find this testimony
credible in light of the admissions by both employees that
they indeed had not received the requisite training. Accordingly the violations are proven as charged.
Based on the
undisputed testimony of Inspector Coleman these violations
were
so "significant and substantial" and of high gravity.

317

Since Mullins clearly knew of the training requirements I
find that the violations were also the result of operator
negligence.

In determining the appropriate civil penalties in these
cases I have also considered the testimony that the cited
mine is not now in operation. According to Mullins however
the mine will be reopened as soon as market conditions
warrant.
I have also considered that the operator is small
in size, has a moderate history of violations, and that the
violations were abated within the framework of the Secretary's requirements. Accordingly the following civil
penalties are deemed appropriate:
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

2763732
2763733
2763734
2762857
2762858
2762859
2762860
2763482
2763484
2763639

-

$400
vacated
$400
$100
$ 30
$ 20
$100
$200
$200
$400

ORDER
The Elk Creek Coal Corporation is her by directed to pay
civil penalties of $1,850 wit in 0 days o
the date of this
decison.

G

Judge
Distribution:
Sheila Cronan, Esq., Office of
Solicit r, U.S. Department
of Labor, 4015 Wilson Boulevard, 1 oom 1237A, Arlington, VA
22203 (Certified Mail)
Mr. Greg Mullins, President, Elk Creek Coal Corp., P.O. Box
1379, Grundy, VA 24614 (Certified Mail)
rbg

318

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

22041

FEB 19 1987
ROY W. JOHNSON,

DISCRIMINATION PROCEEDING
Complainant

v.
TRI-SON MINING,

Docket No. VA 86-8-D
INC.,
Respondent

NORT CD 86-6

ORDER OF DISMISSAL
Before:

Judge Melick

Complainant, Roy w. Johnston requests approval to
withdraw his Complaint in the captioned case on the grounds
that the parties have reached a mutually agreeable
settlement.
Under the circumstances her,in, permissj'on to
withdraw is granted.
29 C.F.R. § 2700.l .
The case is
therefore dismissed.
1
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Distribution~

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,

Hugh F. O'Donnell, Esq., Client Cehtered Legal Services of
Southwest Virginia, Inc., P.O. Box 147, Castlewood, VA 24224
(Certified Mail)
Barbara L. Krause, Esq., Smith, Heenan & Althen, 1110 Vermont
Ave., N.W., Washington, DC 20005 (Certified Mail)
rbg

319

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

FEB 19 1987
CONTEST PROCEEDING

WESTERN FUF.LS-UTAH, INC.,
Contestant

Docket No. WEST 86-108-R
Citation No. 2832711; 3/1/86

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 86-245
A. C. No. 05-03505-03524

(MSHA} ,

Petitioner

v.

Deserado Mine

WESTERN FUELS-UTAH,

INC.,
Respondent
DECISION

Appearances:

Karl F. Anuta, Esq., Duncan, Weinberg & Miller,
P.C., Denver, Colorado,
Contestant/Respondent;
Margaret A. Miller,
. , Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
Respondent/Petitioner.
.

Before:

Judge Maurer

The
in the above-styled contest proceeding was
held on July 23, 1986, in Denver, Colorado, before the late
Judge Carlson.
Subsequently, when the civil penalty proposal
was issued, the
ies moved to have it consolidated with
the contest
ing.
That motion is hereby granted, and I
further note that evidence as to the penal
was taken in that
hearing.
Due to Judge Carlson's untimely death, these cases were
reassigned to me.
The parties have agreed to my adjudication
of the cases on the basis of the record made be
Judge Carlson without
tional hearings or briefing.
I have cons
ered all of the arguments made by the
ies in their respective brie
and I make the following decision.

320

Both the contest proceeding and the civil penalty case
relate to section 104(a) Citation No. 2832711, which was
issued on March 1, 1986, alleges a violation of 30 C.F.R.
§ 75.200, and states as follows:
A fatal accident occurred February 28, 1986 at
about 10:50 A.M.
It was revealed that the roof
bolting machine operator proceeded about 7
inby permanent roof supports for reasons other
than to install temporary supports. The accident occurred in the east mains headgate belt
entry about 73 feet inby Survey Station 380.
The incident which
up to the fatal accident began
when the deceased, Austin Mullens, and his supervisor, one
Carson Julius, trammed the roof-bolter into the entry to begin bol ng.
This particular roof-bolting machine is the
type that has an automatic temporary roof support system
(ATRS) on the front of the machine.
They had set one mat
and had moved the machine forward to set a second when
Julius' drill stopped because of a loss of water pressure.
A water hose had become kinked, so the ATRS system was taken
down and the machine backed up to straighten out the hose.
When the machine was backed up, the pan
11 off on the side
Julius was working on.
After the hose was straightened out,
the bolting machine was again moved forward, and the two men
discussed how to retr
the pan that had fallen out under
unsupported roof.
Julius attempted to drag the pan back
under supported roof using a four foot steel, but it was
too short. Julius then went to the back of the machine to
get a longer steel, but be
he went, he specifically told
Mullens not to go out under the unsupported roof.
By the
time he got to the rear of the machine and turned around,
Mullens was in front of the roof-bolting machine, out under
unsupported roof, bending over the pan, trying to lift it
up.
Julius testified he shouted to Mullens to get back.
Mullens did not respond.
He shouted for Mullens to get out
a second time, but at that moment a large rock fell and
killed Mullens.
The parties 1 recitation of the facts of the accident
in their respective briefs are
irly close and indeed the
s stipulated that on February 28, 1986, Austin Mul
was seven feet inby permanent roof support for reasons other
than installing temporary supports when a rock fell and
killed him.
30 C.F.R.

§

75.200 states in pertinent part that:

No person shall proceed beyond the last permanent
support unless adequate temporary support is

321

ded or unless such temporary support is not
required under the approved roof control plan and
the absence of such support will not pose a hazard
to the miners.
Western Fuels' roof control plan prohibits miners from
travel
inby permanent roof support for reasons other than
installing temporary roof support.
It is undi
that
Mullens was inby the permanent roof support, was not protected by temporary support and was there for reasons other
than to install temporary support.
There re, it would appear to be axiomatic that a violation of 30 C.F.R. § 75.200
0
as alleged"
However, the operator asserts that any violation of the
cited mandatory safety standard that occurred was due wholly
to the negligence of a rank and file miner (Mullens) and
that
s negligence should not be attributed to the onerator.
Therefore, i t follows that the operator did not
olate the
regulat
and should not be penalized.
The law, however, is
se.
Assuming, arguendo,
that there is absolutely no evidence of operator negligence
1
in this record, the re
s contention that it should
not be held accountable
a violation of the mandatory
safety standard by one of its employees is simply not the
law as it exists today.
This is the case even if I should
find, and I do, that Mullens for some reason known perhaps
only to himself, ignored his supervisor's instructions to
stay out from under the unsupported roof, on
seconds before he was killed.
Commission has consistently and .requently held
oerator is L~
r
without regard to ault, for
s 0i the: Act or its regulations corrunitted by its
emp~oyees.
Inc.-Northwestern Mini
De t., 8 FMSHRC
1632 (1986}.
s no earing on the
issue o
Rather it is a factor to be considered "n
a civ~l
Cnited
• l PMSHRC 1306 (1979);
so Rock

Th
that an
vio at

9

(1981).

According
I find that the re
for
v
lat
of 30
.F . . § 75.20()
Mullens and further find that vie) la ti on to
nsignifj_cant ar1Cl subst 11ti
ff
c1r1d SE:~1:-ic1 us_.,

322

is liable
Austin
usly

CIVIL PENALTY ASSESSMENT
parties have stipulated that the Deserado Mine is
owned by Western Fuels-Utah, Inc., and is a large coal mine.
They have further stipulated that the proposed penalty of
$1,000 will not af
the operator's ability to remain in
business and that the citation herein was abated in good faith.
I have reviewed the operator's violation history for the
two year period prior to the issuance of the citation at bar
(Exh it No. R-2), and I have already found the gravity of the
violation to be serious.
Therefore, the sole remaining issue
relevant to the assessment of the penalty amount is operator
negligence.
The fact that the violation in this case was committed
by a rank and file miner does not necessarily shield the operator from being found negligent.
We must look to such considerations as the foreseeability of the miner's conduct, the
risk involved, and the operator's supervision, training, and
discipline of its employees with regard to the mandatory
safety standard at issue.
A. H. Smith Stone Co., 5 FMSHRC 13,
15

(1983).

I find that the evidence in this record is undisputed
that the decedent, Mullens, walked out under the unsupported
roof on his own, contrary to the direct orders of his supervisor.
However, the Secretary urges that in this instance,
the miner's violative conduct was foreseeable and therefore
his negligence should be imputed to the operator in any event.
In support of this proposition, the Secretary points out that
during the investigation of this fatal accident by MSHA, two
miners came forward and told the investigator that they had
seen other miners, including Mullens, walking out under unsupporteci roof on prior occasions.
'rhese two miners went on ',~
state, however, that they had never info~med anyone in mana_ ment of this fact.
Secondly, the Secretary cites the foreman q
warning to Mullens as further evidence of foreseeability on
the part of the operator.
This argument strikes me as a
classic examole of the ''damned if you do, damned if you don't"
school ~f advocacy.
On the one hand the absence of frequent
and timely warnings on critical safety issues could be construed as inadequate training and/or supervis n while on
the other hand, too many warnings, especially right before
an accident happens could be an in rence that the supervisor
knew of the employee's dangerous proclivities and didn't do
enough to correct them.
In sum, I do not find substantial
evidence in this record to support a finding that Mr. Mullens'
violation was foreseeable by the operator, or that proper
supervision was lacking in this instance.

323

Furthermore, I have care
ly examined the record concerning the operator's training program and its history
disciplining its employees for violations of the mandatory
safety standard at issue herein and find both to be adequate.
In my opinion, i t was Mr. Mullens' own negligence, not
that of the operator, which caused his death.
Accordingly,
I find this to be a substantial mitigating factor with regard
to the penalty to be assessed.
ORDER
Citation No. 2832711 is AFFIRMED and Western Fuels-Utah,
Inc., is ordered to pay a civil penalty of $250 within 30
days of the date of this decision for the violation of 30
C.F.R. § 75.200, as alleged.

Roy
Admi

urer
tirative Law Judge

Distribution:
Karl F. Anuta, Esq., Duncan, Weinberg & Miller, P.C., 717
17th Street, Suite 1670, Denver, CO 80202 (Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, U. S. Department of Labor, 1961 Stout Street 1 Rr.1. 1585, Denver, CO
80294 (Certified Mail)

yh

324

FEPERAl MINE SAFE"fl'Y AND HEALTH REVU:W COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

February 20, 1987

CONTEST PROCEEDINGS

RUSHTON MINING COMPANY,

Contestant
Docket No. PENN 85-253-R

v.

Order No. 2403926; 6/11/85
Docket No. PENN 85-254-R
Order No. 2403927; 6/14/85

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. PENN 85-255-R
Order No. 24039281 6/17/85

Respondent

Rushton Mine
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. PENN 86-1
A.C. No. 36-00856-03548

v.

Rushton Mine

RUSH'rON MINING COMPANY,

Respondent
DECISION
ranees~

Before~

David To Bush 0 Esq., Office of the Solicitor,
UoS. Department of Labor, Philadelphia, Pennsylvaniau for the Secretary of Labor (Secretary);
Joseph To Kosekq Esq , Dennis Govachini, Esq.,
and Joseph Yuhasv Esq.u Ebensburg, Pennsylvania,
for Rushton Mining Company (Rushton).

Judge Broderick

S'I'ATEMENT OF THE

E

In the penal
case, the Secretary seeks penalties for five
alleged safety standard violations, three of which grew out of
orders which are contested in the contest proceedings.
Therefore, all of the cases were consolidated for the purposes of
hearing and decision. At the cc>mrnencement of the hearing, the
parties submitted, and I stated I would approve, a sattlement of
one of the alleged violations (that one charged in the order
contested in PENN 86-255-R). Following the hearing, the

323

Secretary filed a motion to withdraw the Petition and vacate the
order which is contested in PENN 86-253-R. Three violations
remain, including that alleged in the order contested in PENN
86-254-R.
Pursuant to notice, the case was heard in Pittsburgh,
Pennsylvania on November 6, 1986. Donald Klemick testified on
behalf of the Secretary. Raymond Roeder, Lemmel Hollen and
Kenneth Fenush testified on behalf of Rushton. Rushton filed a
post hearing brief directed t6 an evidentiary ruling I made at
the hearing. The Secretary did not file a post hearing brief. I
have considered the entire record and the contentions of the
parties and make the following decision.
FINDINGS AND CONCLUSIONS
At all times pertinent to this case, Rushton was the owner
and operator of an underground coal mine in Centre County,
Pennsylvania, known as the Rushton Mine. Rushton is a large
operator. The history of previous violations is n6t such that
penalties otherwise appropriate should be increased because of it.
There is no evidence that the imposition of penalties will affect
Rushton's ability to continue in business.
ORDER NO. 2403926
Order 2403926, issued under section 104(d)(l) of the Act,
charged a violation of 30 C.F.R. § 75.326 because an intake
trolley haulage secondary escapeway entry was not separated from
a parall
belt haulage entry. Testimony was taken at the
hearing on the order and alleged violation. On February 5, 1987,
the Secretary filed a motion to withdraw its penalty petition
insofar as it was based on the order. The motion requested that
the order be vacated. Rushton does not object to the motion.
Ther2fore, the motion is GRANTED; the ord.er will be VACATEDi the
petition will be DISMISSED insofar as it charges a violation of
30 C.F.R. § 75.326 described in Order 2403926, and the Contest
proceeding Docket ~o. PENN 85-253-R will oe DISMISSED.
ORDER NO. 2403928
Order 2403928, issued under section 104(d)(l) of the
Act,charged an unwarrantable failure violation of 30 C.F.R.
§ 75.316 because the ventilation plan was not being complied Hith
in th~t idl
rooms were not being travelled and examined weekly.
i\t the commencement of the hearing, the Secretary proposed a
settlement of the penalty case related to this violation. The
Sacratary stated that he could not establish that the violation
resulted from Rushton's unwarrantable failure. The vio tion was
originally assessed at $400, and the parties agreed to settle for

326

$100, on the basis that the negligence was less than originally
believed.
I have considered the motion in the light of the
criteria in section llO(i) of the Act and conclude that it should
be approved.
Therefore, IT IS ORDERED that the motion is
GRANTED; Rushton shall pay $100 within 30 days of the date of
this decision; the order is MODIFIED to a 104(a) citation; the
contest proceeding Docket No. PENN 85-255-R is DISMISSBD.
CITATIONS 2403922 AND 2402923
The above citations were issued on June 4, 1985 at about
10:00 a.m. and 11:40 a.m. respectively, by Mine Inspector Donald
J. Klemick.
The conditions cited were the factors that led to
the issuance of an imminent danger withdrawal order the same day.
The imminent danger withdrawal order was not contested, and its
validity is not an issue in this case.
At the hearing, Rushton offered testimony of an alleged
admission by an MsHA official (no longer with MSHA) at a
manager's conference following the issuance of the order and
citations that he did not believe an imminent danger existed.
I
excluded the testimony as irrelevant. Rushton's post hearing
brief argues that the testimony should have been received on the
ground that "it is certainly relevant to the issue of whether an
imminent danger did in fact exist." Unfortunately that "issue"
is not an issue in this proceeding. Whether an imminent danger
existed or not has no bearing on the issues before me, which are
(1) did t~e violations charged occur, and (2) if so, what are the
appropriate penalties based on the criteria in section llO(i) of
the
.
If
concluded that an im.11inent danger did not exist,
this conclusion would not in any way affect my determination of
he above issues.
A fortiori, the opinion of an MSHA official
(who was t10t even present at the mine) that an imminent danger
did not exist would not
feet my determination.
The itations were issued during a health and ventilation
inspection
nspector
emick who is a ventilation specialist.
I find tha
the following conditions were present in the W-4, 001
Section o
th2 sub ct mine:
accumulations of loose coal and
coal dus were present along each of the five entries for a
distance of approxima
90 feet outby the face, and in the
first crosscut connecting the entries, and at the section dumping
point.
The accumulations varied from one to six inches in depth
with deeper accumulations against the rib of the Number l and 2
entries, and at the dumping point,
Equipment tire marks were
seen in the travel ways and at the dumping point. One percent
methane was detected at the face.
Power was energized to the
section, but the continuous miner was not operating, nor was the
scoop, but the roof bolter was operating in the number 2 entry.

327

The mine is a wet mine, but the section in question was
relatively dry. The loose coal and coal dust cited by the
inspector were dry. The accumulation was black in color. The
ventilation in the section was good and the section had no
significant history of methane liberation. The mine, however,
has had prior ignitions. The coal mined at the subject mine
contains a substantial percentage of rock.
In abating the
violation, six shuttle cars of coal, totally about 30 tons were
removed from the area. The cleanup took about 4 hours.
Because
of the extent of the accumulations, I find that substantial
accumulations were present in the area for more than one shift,
probably for two shifts. The preshift inspection book shows that
the section was inspected between 5 a.m. and 7 a.m. and was
reported in safe ~nd healthful condition.
Rushton does not dispute the fact that the accumulations
existed. It admitted the violations, but contends that the
gravity and negligence were exaggerated.
I conclude that a
violation of,30 C.F.R. § 75.400 occurred. The extent of the
accumulations, the presence of energized machinery and the
existence of minimal methane make the violation a serious one.
Loose coal and coal dust can propagate an explosion or mine fire.
I conclude that the accumulations had been present for more than
one shift and that Rushton knew of them prior to the preshift
inspection and was negligent 'in failing to clean them up.
I
further conclude that the failure to record the condition in the
preshift examiner's book was a violation of 30 C.F.R. § 75.303(a).
I conclude that this violation was serious and resulted from
Rushton~s negligence.
Based on the criteria in section llO(i) of
the Act, I conclude that a penalty of $1000 for the violation of
30 C.F.R. § 75.400 and a penalty of $400 for the violation of 30
C.F.R. § 75.303 are appropriate.
ORDER NO. 2403927
On June 14, 1985, Inspector Klemick issued a withdrawal
order under section 104(d)(l) of the Act charging an
unwarrantable failure violation of 30 C.F.R. § 75.316. ~he order
charged that Rushton failed to comply with its approved
ventilation system and methane and dust control, plan because the
periphery of certain idle rooms in 2nd left north mains were not
being travelled and examined weekly.
In fact the rooms were
filled with water, the pumps having been pulled and the area
intentionally flooded.
Rushton intended to use the area as a
sump for the mine.

The revised ventilation plan in effect on June 14, 1985, had
been approved by MSHA on March 7, 1985 subject to Rushton's
complying with certain "items" including the following:

328

3. Since a method was not established to evaluate the
bleeder system for the idled rooms on the right of the
2nd left north mains the periphery of those rooms shall
be traveled and examined weekly.
Prior to that Rushton had on September 26, 1984 sent to MSHA
a letter and a map of the area in the 2nd left north mains 11 that
we intend to flood" (Rx9). The letter further informed MSHA that
ventilation would be maintained by regulators along the edge of
water. On October 22, 1984 MSHA "accepted" the 11 plan 11 submitted
with the September 26 letter 11 provided inlet and bleeder
evaluation stations are established and maintained at the water's
edge • • • " {RxlO). On October 26, 1984, Rushton reported the air
quantities at the water's edge and this was "accepted" by MSHA on
November 7, 1984 (Rxll, 12).
On June 11, 1985, Rushton referred to the March 7, 1985
letter of approval and informed MSHA that all power and equipment
have been removed from the 2nd left north mains and the area is
being used as a sump.
Rushton requested that it be permitted to
take weekly ventilation and methane readings "at the edge of the
water."
On June 25, 1985, MSHA granted Rushton's request and
accepted the plan showing ventilation to the water's edge on the
completed 2nd left north mains section. Examinations had in fact
been per.formed at the water's ~dge on May 30, June 5 and June 12,
19 85.

At the hearing Rushton proposed to submit evidence that Earl
McMasters, Supervising Inspector, stated at a manager's
conference that "he did not see a violation in this case.• {Tr.
253)0 He is said to have stated further that he would not vacate
the order because it would cause him a lot of difficulty with the
subdistrict and "that's why we have administrative law judges."
Cid.).
I excluded the
dence at the hearing, but will now
assume that the evidence contained in the offer of proof is part
of the evidence in the case and will consider Mr. McMaster's
statements,
I conclude that the conditions contained in the MsHA
approval letter
March 7, 1985 were part of the approved
ventilation plan in effect on June 14, 1985. Therefore, Rushton
was required to travel and examine weekly the periphery of the
idled rooms on the right of the 2nd left north mains. As of
June 14, 1985, Rushton was not travelling and 2xamining weekly
the periphery of those idled rooms, indeed it could not do so,
because it had flooded them. Therefore, a violation pf the plan
and thus of 30 C.F.R. § 75.316 was established.
The fact that a
change in the plan had
n requested does not make it less a

329

violation. Because the area had been flooded, all power and
equipment had been removed, and ventilation was maintained to the
water's edge, the violation was not serious. Because of the
confusion shown in the correspondence between Rushton and MSHA
between September 26, 1984 and June 25, 1985 (Respondents
Exhibits 9-13-A and Government's exhibits 1 and 2), I conclude
that the Secretary has not established that the violation
resulted from Rushton's unwarrantable failure to comply with the
standard. The order should be modified to a 104(a) citation.
The contest proceeding Docket No. PENN 85-254-R contesting the
order will be granted in part insofar as it contests the finding
of unwarrantability.
Based on the criteria in section llOCi) of
the Act, I conclude that an appropriate penalty for the violation
is $100.
ORDER
Based on the above findings of fact and conclusions of law,
and on the motion to withdraw and the motion to approve
settlement, IT IS ORDERED:
1. Order No. 2403926 is VACATED; no penalty is assessed for
the violation charged in the order.
2. Docket No. PENN 85-253~R contesting Order No. 2403926 is
DISMISSED because the order is vacated.
3.

Order No. 2403928 is MODIFIED to a 104(a) citation.

4.
Docket No. PENN 85-255-R contesting Order No. 2403928 is
DISMISSED.
5.

Order No. 2403927 is MODIFIED to a 104(a) citation.

6.
Docket No. PENN 85-254-R is GRANTED in part insofar as
it contests the finding of unwarrantability in Order No. 2403927.
7. Rushton shall pay the following civil penalties within
30 days of the date of this
ision:

330

CITATION/ORDER NO.

30 CFR STANDARD

2403928
2403922
2403923
2403927

75.316
75.400
75.303(a)
75.316

PENALTY
$ 100
1000
400
100
Total $1600

J

~A'1t.i·? /.tfi'1·ll~1 f/~
James A. Broderick
Administrative Law Judge

Distribution:
David T. Bush, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
Joseph Kosek, Esq., Rushton Mining Company, P.O. Box 367,
Ebensburg, PA 15931 (Certified Mail)
slk

331

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

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

Petitioner

FEB 20 1987

..

CIVIL PENALTY PROCEEDING

.

Docket No. WEST 86-111-M
A.C. No. 42-01014-05504
Walker Sand & Gravel Pit

v.
CONCRETE PRODUCTS COMPANY,

Respondent
DECISION

Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Mr. Boyd Nielson, Concrete Products Company, Salt
Lake City, Utah,
pro se.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges respondent with violating a safety
regulation promulgated under the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 et seq., (the "Act").
After notice to the parties, a hearing on the merits took
place in Salt Lake Cityp Utah on August 13, 1986.
The parties waived their right to file post-trial briefs.
Issue
The issue is what penalty is appropriate for failure to
provide a back-up alarm.
Citation 2644078
This citation alleges respondent violated 30 C.F.R.
§ 56.9087 which provides as follows:
§

56.9087 Audible warning devices and back-up alarm.

Heavy duty mobile equipment shall be provided with
audible warning devices. When the operator of such
equipment has an obstructed view to the rear, the
equipment shall have either an automatic reverse signal
alarm which is audible above the surrounding noise level
or an observer to signal when it is safe to back up.

332

Summary of the Evidence
William W. Wilson is a person experienced in mining as well
as an MSHA safety and health inspector (Tr. 4, 5).
On December 10, 1985 Mr. Wilson inspected respondent, a sand
and gravel operation (Tr. 5, 6).
There were three or four
empl
sat the pit (Tr. 6). While on the site the inspector
observed a 35-ton Caterpillar that did not have a backup alarm
(Tr . 7 ; Ex . P 1 ) .
The driver of the vehicle, which was in operation, had
restricted vision to the rear.
This hazard could reasonably
cause a fatality or serious injury (Tr. 8, 11).
Inspector Wilson
believed the negligence was high because the defect had been
reported to the mechanical department over a week before the
inspection (Tr. 9).
But, there had been no repairs made to the
equipment (Tr. 10, 11).
The alarm was either replaced or repaired within the
specified time (Tr. 11).
Boyd E. Nielsen, general foreman for respondent, testified
the company operates eight sand and gravel pits.
They are
located in Utah, Nevada and Wyoming CTr. 17).
The maintenance department was advised of the defect four or
five days before the inspection (Tr. 18).
Exhibits were received in evidence showing the normal time
requir
to effect repairs (Tr. 18, 19); Ex. Rl, R2).
The company abat
the instant violation the same day the
citation was issued (Tr. 14, 20).
The company has an outstanding safety record and it makes
every effort to comply with MSHA regulations.
The proposed penalty will not effect the company's ability
to continue in business (Tr. 21).
Discussion
Respondent in this case admits the violation (Tr. 3, 4).
Accordingly, the sole issue focuses on the appropriate penalty.
The statutory criteria to assess civil penalties is
contained in section llO(i) of the Act.
The provision, now 30
U.S.C. § 820Ci), provides as follows:
The Commission shall have authority to assess all civil
penalties provided in this Act.
In assessing civil

333

monetary penaltiesp the Commission shall consider the
operator's history of previous violations, the appropriateness of such penalty to the size of the business
of the operator charged, whether the operator was negligent, the
feet on the operator's ability to continue
in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting
to achieve rapid compliance after notification of a violation.
The operator had six violations in the two year period
ending December 9, 1985. This is a considerable improvement over
the 17 violations that occurred before December 10, 1983. The
violations involved in the most recent period indicate that the
number of respondent's violations are less than average. The
respondent must be considered a small operator inasmuch as it has
only three or four employees at this pit.
It does, however, have
additional pits. The operator was negligent in that it failed to
remove the equipment from service. Respondent's evidence established there was a time lag between the time of reporting the
defect and its repair.
I am not persuaded by such evidence
particularly when respondent abated the violation the very day
the citation was issued. The parties stipulated that the
proposed penalty of $400 would not affect the operator's ability
to continue in business. The gravity must be considered high
since a fatality could occur. The operator's good faith is
apparent since it immediately abated the condition.
On balance, I deem that a penalty of $150 is appropriate.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portion of his decision, the following conclusions
of law are entered~

law I

1.

The Commission has jurisdiction to decide this caseo

2o

Respondent violated 30 C.F.R. § 56.9087.

Based on the foregoing findings of fact and conclusions of
enter the following~
ORDER
1.

Citation 2644078 is affirmed.

2.

A civil penalty of $150 is assessed.

3. Respondent is ordered to pay to the Secretary the sum
of $150 within 40 days of the date of this decision.

Law Judge
334

.

Distribution:
Margaret Miller, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Concrete Products Companyf Mr. Boyd Nielson, 4883 Southridge
Drive, P.O. Box 7356, Salt Lake City, UT 84107 (Certified Mail)
/bls

335

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

22041

FEB 2 4 1987
DISCRIMINATION PROCEEDING

WILFRED BRYANT,
Complainant

Docket No. WEVA 85-43-D

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

Before:

Barbara Jo Fleischauer, Esq., Morgantown, West
Virginia, and Paul R. Sheridan, Esq., Logan,
West Virginia, for Complainant; Robert Q. Sayre,
Esq. and Jeffrey Hall, Esq., Goodwin & Goodwin,
Charleston, West Virginia, for Respondents,
Winchester Coals, Inc., and Mullins Coal Company.
No one appeared for Respondents Dingess Mine
Service, Joe Dingess or Johnny Dingess.

Judge Broderick

STATEMENT OF THE
Complainant contends that he was discharged from his job as
shuttle car operator on April 27, 1984, for activities protected
under the Federal Mine Safety and Health Act (the Act).
He filed
a discrimination complaint on May 1, 1984 with the Mine Saf
and Health Administration (MSHA).
On October 19, 1984, MSHA
notified him of its finding that a violation of section 105(c} of
Act had not occurred.
A complaint was filed with the Commission on November 26,
1984, naming Dingess Mine Service, Joe Dingess, Johnny Dingess
and Winchester Coals, Inc., as Respondents.
The complaint was
not served upon winchester until May 3, 1985, but Winchester had
been notified by the Corrunission on November 27, 1984, that a
complaint was filed.
On January 17, 1986, Complainant filed a
motion to add Mullins Coal Company as a party Respondent. The
motion was granted by order of Judge Joseph B. Kennedy on
January 27, 1986.

336

No appearance or answer to the complaint was filed by or on
behalf of Dingess Mine Service, Joe Dingess or Johnny Dingess.
On October 24, 1985 and October 3, 1986 I issued an order to show
cause to Dingess Mine Service, Joe Dingess and Johnny Dingess why
they should not be found in default for failure to answer the
complaint. Cause was not shown, and I entered an order finding
Dingess Mine Service, Joe Dingess and Johnny Dingess in default.
I further found that the default was not conclusive on the issue
of discrimination as against Winchester, Mullins or any successor
employer.
Pursuant to notice, a hearing was held in Charleston, West
Virginia on November 12 and 13, 1986. Wilfred Bryant, Reed
Peyton, Roger Cook, Donnie Adams, Stanley Wells, Oscar Davis, and
Donald Cooper testified on behalf of Complainant; Aaron Browning
testified on behalf of Respondents Winchester and Mullins. Both
parties have filed post hearing briefs. Based on the entire
record and considering the contentions of the parties, I make the
following decision.
FINDINGS OF FACT
OPERATION OF THE SUBJECT MINE
Winchester Coals, Inc. (Winchester) and Mullins Coal Company
(Mullins) are both wholly owned subsidiary corporations of
Imperial Pacific Investments. Donald Cooper is President of both
Winchester and Mullins and Vice-President of Imperial Pacific.
In 1981 and 1982, Winchester had contracted with Dingess Mine
Service for the latter to construct certain electrical
installations and to relocate high voltage power lines. Based in
part on Winchester's satisfaction with the work performed under
that contract, Mullins contracted with Dingess Mine Service on
July 20, 1982 for the latter to mine coal from the subject mine
(called Mullins No. 2 Mine in the contract) and deliver it to
Mullins for a certain amount per ton. Dingess Mine Service had
never operated an underground coal mine previously. The contract
made Dingess responsible for hiring, employment, and working
conditions. Dingess agreed that the work force should be under
the jurisdiction of the United Mine Workers of America (UMWA) and
governed by the current wage agreement with UMWA.
Dingess is
described as an independent contractor and is responsible for
construction and maintenance of all facilities.
Dingess agreed
to diligently mine the coal with modern and approved mining
methods and to employ only competent, skilled personnel. Dingess
agreed to comply with applicable laws and regu
ions. On
July 20, 1982 (the date of the Mullins-Dingess Mining Contract)
Winchester and Dingess entered into a written equipment lease, in
which Winchester leasad to Dingess certain mining equipment,

337

including a coal drill, a cutting machine, an underground Power
Center, a loading machine and 2 Joy 21-SC shuttle cars. Dingess
agreed to pay as rent a certain amount per ton of coal mined
under the Mullins-Dingess Mining Contract. Dingess agreed to
keep the leased property in good repair.
The mining contract was for one year, and unless terminated
in accordance with its terms, provided that it should continue
for successive periods of one year until all the mineable coal is
mined and delivered. The equipment lease was for four years
subject to Winchester's right to terminate on any anniversary
date by 30 days written notice.
Mullins participated in the development of the mining plans
by Dingess. It hired an engineering firm to prepare maps and
perform some of the ventilation calculations.
During 1982 and early 1983 Mullins was satisfied that
Dingess was doing "a pretty good job of operating that coal
mine." (Tr. 204).
In late 1983 and in 1984 problems developed:
a number of citations were issued by the State Department of
Natural Resources (DNR), and Dingess fell behind in its payments
of UMWA royalties, taxes and worker's compensation fund payments.
Mullins, which was the permit holder under the DNR, itself
corrected certain problems which endangered its permit.
In late
1983 or early 1984, Mullins became aware that Joe Dingess had a
drinking problem and was drinking on the job. Mullins could have
terminated the contract without cause in July 1984, but because
of the high demand for coal decided to continue it. During 1984,
rental payments due Winchester were regularly deducted from
amounts due Dingess from Mullins. Winchester and Mullins also
made payments owed to suppliers, trucking companies, and repair
companies by Dingess and treated the payments as advances due
under the mining contract. On at least one occasion, Winchester
made a payment to Aaron Browning, Dingess' mine foreman,
apparently for his salary.
In 1984, Mullins had discussions with Dingess concerning the
purchase of coal from the Panna Mine, which Dingess contemplated
opening. Winchester advanced $25,000 to Joe and Johnny Dingess
to open the Panna Mine.
On October 22, 1984, Mullins terminated the mining contract
with Dingess on six grounds:
(1) the failure of Dingess to
comply with P&R regulations; (2) the failure of Dingess to pay
its employees; (3) the failure of Dingess to pay money due a
trucking company; (4) the failure of Dingess to comply with the
UMWA contract; (5) the making by Dingess of unauthorized
subcontracts with Aaron Browning; (6) the failure of Dingess to
comply with the Mine Health and Safety law and regulations.

338

Dingess filed suit for breach of contract which is pending
in the State Court.
Winchester formally terminated the equipment lease in
February 1985.
The license to operate the subject' mine was recovered from
Dingess in a court proceeding by Mullin~ or Winchester.
It was
subsequently transferred to New River Fuels, which is currently
operating the mine, apparently under a mining contract with
Mullins.
Roger Cook, General Superintendent of Winchester and
previously its Manager of Mines, had the responsibility of
monitoring the subject mine to insure that Dingess lived up to
its contract with Mullins. This indicates the interchangeable
nature of Winchester and Mullins. Cook was at the mine site
regularly, and went underground to make sure Dingess was
following the proper projections and producing coal. On occasion
he had problems corrected, including excessive dust and surf ace
drainage.
In discussions with Dingess, he suggested the opening
of a continuous miner section to increase production. Cook
testified that Winchester/Mullins had to "put in overcasts and
everything else, and they [Dingess] really didn't understand how
to do it." (Tr. 106). Later, he seemed to indicate that Aaron
Browning put in the overcasts.
(Tr. 110). Production did not
increase, and it was decided to cancel the contract. Neither
Cook nor anyone at Winchester/Mullins was involved in the hiring
or firing of Dingess' miners. No miner complained to Cook about
unsafe equipment.
COMPLAINANT'S EMPLOYMENT
Complainant was hired as a shuttle car operator at the
subject mine on April 23, 1984.
He was paid $110 per day.
He
was hired by mine foreman Aaron Browning, who told complainant
that he worked for Winchester Coal Company. Complainant had
previously worked for Amherst Coal Company as a general inside
laborer, roof bolter helper, miner helper and shuttle car
operator"
He left Amherst more than 2 years before he was hired
at the subject mine.
Complainant was hired with his
brother-in-law, Donnie Adams, both to operate shuttle cars. The
shuttle car to which complainant was assigned had defective
brakes, no lights, a
fective tram operation and defective
steering. The car to which Adams was assigned had no brakes and
no lights.
Complainant pointed out the
fects to Kevin Atkins,
the section foreman and to Browning and was told to do the best
he cou

339

After tpree days, Complainant told Kevin Atkins, that he
refused to continue operating the shuttle car because his arms
ached trying to steer the machine. The next day he was assigned
by Browning to "shooting coal". The following day Browning
called Complainant and told him the mine was flooded, and the
second shift was laid off. Complainant went to the mine site to
get a layoff slip so that he could go back on welfare, and found
that the mine was not flooded, and that employees who had been
hired subsequent to Complainant were working. Browning refused to
give him a lay off slip and told Complainant he did not have a
job anymore. Complainant filed a grievance through his union
representative and after 5 days, Browning agreed to rehire Adams
and put Complainant on the panel for recall.
He."guaranteed"
that he would call Complainant back to work within two or three
days.Complainant refused the proposed settlement because ·"he felt
he was done wrong" and because he believed there was no panel.
Adams refused to return to work unless Complainant was rehired.
Neither returned to the mine. Since leaving Dingess, Complainant
has sought work without success.
He has worked in ~ State Park
in return for his family welfare payments.
Aaron Browning testified that the loading machine operator
filed a safety complaint concerning Complainant's operation of
his shuttle car. The loader operator refused to run his machine
if Complainant continued on the shuttle car.
Browning stated
that was the reason he laid off Complainant. He intended to call
Complainant back in some other position. Complainant refused the
offer and on May 9, 1984, formally terminated his employment.
(Rx3)
ISSUES
1.

Is Complainant's complaint barred by time limitations?

2o
Was Complainant discharged or otherwise discriminated
against because of activity protected under the Act?

3.
If so, is either Mullins or Winchester liable for the
discrimination?
4.
If so, to what is Complainant entitled, and who is
responsible for providing the remedy?
CONCLUSIONS OF LAW
TIME LIMITATIONS
The complaint with MSHA was filed May 1, 1984, naming
Dingess Mine Service, Inc. as the person committing the
discrimination, and April 25, 1984 as the date of the

340

discriminatory action.
After an investigation, the Secretary
determined on October 19, 1984 that a violation had not occurred
and notified Complainant by letter received by Complainant on
October 24, 1984. On November 26, 1984, the complaint was filed
with the Commission, naming Dingess Mine Service, Winchester
Coals, Inc., Joe Dingess and Johnny Dingess as Respondents. The
certificate of service states that copies of the complaint were
mailed to all Respondents on November 23, 1984. Winchester has
stated that it was served with a copy of the complaint on May 3,
1985, and a certificate of service with certified mail receipts
was filed by Complainant showing service on WJ.nchester May 3,
1985 and on the Dingesses May 8, 1985.
However, the Commission
by
tter of November 27, 1984 notified Dingess and Winchester
that a complaint had been filed.
By order issued September 24,
1985, Judge Kennedy denied Winchester's defense based on the
statute of limitations.
By order issued January 27, 1986, Judge
Kennedy granted Complainant's motion to add Mullins as a party
Respondent.
Thus, the complaint filed with the Secretary was timely
filed even though it failed to name Mullins or Winchester.
Complainant could not be expected to know the relationship of
Mullins or Winchester to the operation of the mine:
he worked
Dingess.
MSHA's records apparently showed Dingess as the
mine operator, and it had no reason to bring Mullins or
Winchester into the investigation. Mullins and Winchester assert
that they were prejudiced because they were not involved in the
investigation.
They have not shown, and it is not evident to me,
what the prejudice consisted of.
I conclude that their claim of
prejudice is not well-founded, and I reject it.
The complaint with the Commission was filed 31 days after
the Secretary notified Complainant of his finding that
discrimination had not occurred. Thus it was filed one day
beyond the statutory period.
The record does not disclose why
service on Respondents took place so long after filing, but it is
clear that Winchester, at
t, knew of the filing
the
complaint within a few days after it was filed.
At any rate, the time limitations contain
in section
105(c) of the Act were not intended to be jurisdictional, and
dismissal of a complaint for late filing is justified only if the
Respondent shows material, legal prejudice attributable to the
delay.
Cf. Secretary/Hale v. 4-A Coal Company, Inc., 8 FMSHRC
905 (1986).
No such showing has been made here.
In view of the
close relationship (virtual identity for our purposes) between
Mullins and Winchester, Mullins cannot claim additional prejudice
because it was added as a Respondent by an order issued later.

341

Therefore, I conclude that the claim is not barred because
of time limitations, and that Winchester and Mullins are properly
before the Commission as Respondents.
PROTECTED ACTIVITY
CGmplainant contends that the shuttle car to which he was
assigned was unsafe:
it had no lights, defective brakes, a
defective tram mechanism and defective steering.
Browning denies
that it was unsafe, but the clear weight of the evidence supports
Complainant's contention, and I conclude that it was in fact
unsafe.
Complainant testified that he told Browning and Atkins
that it was unsafe,. which Browning denied.
I conclude that
Complainant did tell his supervisors that the vehicle was
defective and unsafe.
This was protected activity under the Act.
On April 26, 1984, Complainant told Atkins that he refused to
operate the shuttle car anymore, and at least one of the reasons
for his refusal was the unsafe condition of the machine.
I
conclude that this refusal was therefore protected activity, and
that the reason for his refusal was made known to the operator in
the person of section foreman Atkins.
ADVERSE ACTION
Complainant was "laid off" on April 27, 1984, following his
refusal to continue operating the defective shuttle car.
This
was adverse action.
He filed a grievance, and in the course of
the grievance procedure, Browning offered to settle the grievance
by placing him on a recall panel and calling him back to work in
"a couple of days at the most."
(Tr. 278)
Complainant refused
the offer and formally resigned on May 9, 1984.
I conclude that
he was not discharged and that the adverse action terminated when
he refused the offe~ to be called back and resigned his job.
MOTIVATION
Under the Actr a miner can establish a prima facie of
discrimination by showing that he engaged in protected activity
and that the adverse ac~ion complained of was motivated in any
party by that activity.
Secretary/Fasula v. Consolidation Coal
Co. p :.: FivISHRC 2.786 (1980) r revnd 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 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.
If the operator cannot rebut the prima facie case in
this manner, it may affirmatively defend by showing that it was
motivated also by the 1ninervs unprotected activities and would
have taken the adverse action for the unprotected activities

342

alone. Pasula, supra1 Simpson v. Kenta Energy, Inc., 7 FMSHRC
1034 (1986).
Direct evidence of a discriminatory motive is, as the
Commission has said, "rare." Illegal motive may be established,
however, if the facts support a reasonable inference of
discriminatory intent. Goff v. Youghiogheny & Ohio Coal Company,
8 FMSHRC 1860 (1986). Here the evidence shows serious safety
defects on mine equipment and Complainant's refusal to operate
the equipment followed almost immediately by his lay off. These
facts clearly support an inference that one of the mine
operator's motives in laying Complainant off was his protected
activities. Browning testified that he laid off Complainant
because of a safety complaint from the loader operator who was
afraid of the way Complainant was operating the shuttle car. I
conclude, however, that this complaint was related to the
condition of the shuttle car rather than to Complainant's
inability to operate it. The operator has not established that
Complainant would have been laid off for unprotected activity
alone. Therefore, I conclude that a violation of section 105(c)
has been established.
LIABILITY OF MULLINS/WINCHESTER
Section 105(c)(l) of the Act provides that "no person shall
• discriminate against or otherwise interfere with the
statutory rights of any miner • • • • " Liability is thus not
restricted to a mine operator or an employer.
The record in this case establishes that Complainant worked
for Dingess Mine Service which was the "operator" of the subject
mine: Dingess hired him, directed his work activity and laid him
off. Mullins/Winchester was not involved in hiring Complainant.
The evidence does not show that it directed his work activ..:i,_ty,
nor does it show that Mullins/Winchester was in any way invblved
in his lay-off, the adverse action complained of here.
On the other hand, the record shows that Mullins/Winchester
had a continuing presence at the mine. Mullins/Winchester knew
or should have known that Dingess showed increasing evidence of
its incompetence, technically and financially, to operate the
mine, and this evidence was very strong at the time of
Complainant's employment. Mullins profited from the coal
production, and pressured Dingess to increase its output.
Winchester owned most of the mining equipment, including the
shutt
car operated by Complainant. There is no direct evidence
that Mullins/Winchester knew of the defective condition of the
car, but I infer from the regular presence of Roger Cook at the
mine that it was aware of the shuttle car's condition. The lease
agreement, however, required Dingess to keep the leased property

343

in good repair CRX-6). The difficult question is whether
Mullins/Winchester's relationship to the mine was such that it
could be deemed "a person" which "discriminated against"
Complainant.
Complainant cites a number of courts of Appeals decisions
which held that citations for safety violations were properly
issued to mine owner-operators even though the violations were
committed by independent contractors. Harmon Mining Corp. v.
FMSHRC, 671 F.2d 794 (4th Cir. 1981); Cyprus Industrial Minerals
v. FMSHRC, 664 F.2d 1116 (9th Cir. 1981)7 BCOA v. Secretary, 547
F.2d 240 (4th Cir. 1977)7 Brock v. Cathedral Bluffs Shale Co.,
796 F.2d 533 (D.C. Cir. 1986). These cases differ substantially
from the present case in that they involve holding the
production-operator liable for safety violations committed by a
contractor performing certain discrete construction activities.
In the present case Dingess is the production-operator under a
contract with the owner of the coal. It is true that
Mullins/Winchester was involved in overseeing Dingess' work, and
that it actually performed some of the work involved in the
production of coal (engineering projections, installation of
overcasts). However, it was not involved in the discriminatory
act complained of here. This fact distinguishes the present case
from the case of UMWA v. Pine Tree Coal Co., 7 FMSHRC 236 (1985),
where the owner of the coal directly supervised and directed the
contract operator's activity which led to an imminent danger
withdrawal order.
The issue considered here was addressed by Judge
Richard C. Steffey in UMWA v. Algonquin Coal Co., 7 FMSHRC 906
(1985).
In Algonquin, Judge Steffey held that where the owner of
the mine did not "take any kind of action to hire, discipline, or
discharge any of the miners employed byn the contract mine
operator, it could not be held liable for discrimination under
section 105(c) of the Act. I agree with the rationale of the
Algonquin decision, and conclude that Mullins/Winchester is not
liable under section 105Cc) of the Act for the discrimination
against Complainant.
REMEDY
Complainant was laid off by Dingess for activity protected
under the Act. He is entitled to back pay from April 27, 1984 to
May 9, 1984 with interest thereon in accordance with the formula
in Secretary/Bailey v. Arkansas-Carbona, 5 FMSHRC 2042 (1984).
He is further entitled to be reimbursed for reasonable attorneys'
fees and costs of litigation. Because of my conclusion that the
adverse action terminated on Complainant's resignation, the
motion to add New River Fuels as a party (successor employer) is
DENIED.

344

ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. That Dingess Mine Service shall pay Complainant back pay
from April 27, 1984 to May 9, 1984 with interest thereon in
accordance with the Arkansas-Carbona formula.
2.
This proceeding is DISMISSED as to Winchester Coals,
Inc. and Mullins Coal Company.
3.
Complainant shall file a statement within 20 days of the
date of this decision, showing the amount he claims as back pay
and interest under No. 1 above, and the amount he requests for
attorneys' fees and necessary legal expenses.
The statement
shall be served on Respondents who shall have 20 days from the
date service is attempted to reply thereto.
4.
The decision is not final until a further order is
issued with respect to the amount of Complainant's entitlement to
back pay and attorneys' fees.

{
?

i-·1us

,J-/J:.Dckn :~f

James A. Broderick
Administrative Law Judge

Distribution:
Barbara Jo Fleischauer, Esq., 346 Watts Street, Morgantown, WV..
26505 (Certified Mail)
Paul R. Sheridan, Esq., Appalachian Research and Defense Fund,
Inc., 504 White and Browning Building, Logan, WV 25601 (Certified
Mail)

slk

345

FEDERAL MINE SAFETY AND HEALTH REVIEW COMM~SS!ON
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PH<E
FALLS CHURCH, VIRGINIA 22041

FEB 24 1987
.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)u
ON BEHALF OF
ROGER NELSON,
Complainant

DISCRIMINATION PROCEEDING

0

Docket No. WEVA 86-40

.
.

D

¢

HOPE CD 86-7

0

Morton Mine

v.
U. S. STEEL MINING CO., INC.,

:

Respondent
DECISION
Appearances:

Jonathan Me Kronheimp Esq., Office of the
Solicitor, U. S. Department of Laboru Arlington,
Virginia for the Complainant
Billy Mo Tennantu Esq., Pittsburgh, Pennsylvania
for the Respondent

Before:

Judge Weisberger
Statement of the Case

Complainant filed a complaint with the Commission under
ety and Health Act of 1977r
30 U.S.C. § 185(c) (the Act) alleging that on about January 21,
1986 he was illegally discriminated against when he was intimidated as a result of making a safety complaint to his foremanr
and that on or about January 28, 1986 he was discriminated
against when he was required to perform additional and strenuous
duties as a result of filing a safety complaint with MSHA and
speaking with an MSHA inspector.

Section 105(c) of the Federal Mine S

Pursant to notice the case was heard in Huntington, West
Virginia on November 12, 19860 Roger Nelsonp Charles Pauley,
Danny Meadows, Bernie Mayp and Samuel Smith testified for
Complainant. John Cummings, 3111 Wrightv Ron Winfrey and David
Kirk testified for Respondent. Both Parties filed Post Hearing
Briefs and Proposed Findings of Facto In additionr Parties were
granted the right to file Reply Briefs, but none were filed.

346

Findin_gs of Fact
The Complainantu Roger Nelson, has been employed as a miner
by the Respondentu Ue S. Steel Corporation, since 1981. On
September 9, 1985 Nelson begin working as a shuttle car operator
under Foreman David Kirk.
During a daily safety meeting on January 21, 1986 Nelson
asked Kirk how far ventilation tubing could be legally kept from
the mining face. Kirk told Nelson that the law required ventilation tubing to be kept within 10 feet of the face. At the time
the tubing was being kept more than 10 feet from the face. Nelson
give his opinon to Kirk that the Respondent was violating the law
in its placement of the ventilation tubes. Merle Johnson, a miner
operator who was present, stated that keeping the tubing 10 feet
from the face was dangerous to the miner operator and the miner
helper. Johnson and Nelson argued but there was no physical
contact.

After this incident, Nelson said that Kirk ordered him to
take the man trip and get some additional ventilation tubing
(although Charles Pauley testified that Kirk told him that he did
not order Nelson to take the man trip, I have adopted Nelson's
version as Kirk did not contradict it in his testimony). As
Nelson was leaving the man trip Kirk approached the electrician,
Charles Pauley. Pauley testified that Kirk asked who was in the
man trip. When Pauley replied that it was Nelson, Kirk stated to
Pauley that he did not tell Nelson to take the man trip and that
it was against the law for Nelson to take the man trip from the
section. Wnen Nelson returned to the section, Kirk informed him
that
deni

t

was illegal to
he had told

the man trip off the section and
on to take the man trip.

argument between Nelson and Johnsonv Kirk called
Ron

, the General Mine Foreman, and asked that he come to

t~he section as he (Kirk)
a problem.
However, Kirk did not
explain to Winfrey the nature of the problem. Winfrey did not
~ave
tranportation
lable but advised Kirk that he told
11
Shift Foreman and John Cummings, Assistant to the
ne
to come to
sectiono Cummings and Wright asked
problem was
they testified that they were told
K
Nelson was
problemo I note that Kirk denied
that he told Wright and Cummings that Nelson was the problem.
I
&doped t
verison testif
to by Wright and Cummings based upon
observations of their demeanor and also considering the fact that
their testimony corroborates each other.

Acco ing to Cummings, Kirk told them that Nelson and
Johnson "just about got into a fight" over placement of the
tubing (Tro 177). According to Wright, Kirk told him that Nelson
and J·ohnson had a fist fight. Kirk did not ask Cumming or Wright

347

to talk to Nelson.
On his own initiative Wright told Kirk to
have Nelson to come to the dinner hall to talk to him and Cummings.
Wright explained he wanted to talk to Nelson in order to "try to
solve the problem before it got out of hand"
(Tr. 197).
At the dinner hall Nelson admitted to Wright and Cummings
that there had been an argument about placement of the ventilation tube. Wright and Cummings explained to Nelson the hazards
involved in maintaining the ventilation tube within 10 feet of
the face. Wright and Cummings asked Nelson if he would like to
be transferred from the section to another job elsewhere in the
mine running a supply motor. Cummings stated that there is a
difference in pay between a suttle car operator, (Nelson's job on
January 21) and that of a supply motor operator. He said that he
was not sure what the difference was but that he "wouid imagine"
that the suttle car operator job pays more (Tr. 183). There is
no other evidence in the record regarding the pay of these two
jobs. Accordingly, I conclude that Cummings' testimony is
insufficient to establish positively that the job that Wright and
Cummings asked Nelson if he wanted to transfer to, would have
involved a cut in pay.
Nelson testified that Cummings said that if he stayed on the
section he "would end up with the short end of the stick."
(Tr. 24). Nelson told Wright and Cummings that he would like
another job, but that he did not want people to think that Kirk
had run him off the section.
Wright and Cummings did not threaten Nelson nor did they
take any disciplinary action against him or remove him from the
section.
Wright testified that he had decided to speak to Nelson and
not Johnson because he felt that the latter was the problem as
Kirk had so indicated. Also he said that he could speak to
Johnson any time as he operated a miner, whereas Nelson operated
a suttle car and thus did not stay in one place.
At about 11:00 a.m. Winfrey arrived at the section.
He
testified that Kirk had said that there was almost a fight between
Johnson and Nelson concerning the distance ventilation tubing is
to be kept from the face.
Kirk did not ask Winfrey to speak to
anyone. Winfrey then went to talk to Johnson who said that he and
Nelson "about came to blows" in the dinner hall that morning arguing placement of the ventilation tube (Tr. 220).
Johnson asked
Winfrey to be transferred from the section. Winfrey did not grant
this request.
After Winfrey talked to Johnson, Winfrey asked
Nelson to leave his suttle car and talk to him.
According to
Winfrey, he asked Nelson, just as he had asked Johnson, to tell

348

him what happen earlier in the day. Winfrey and Nelson had a
discussion with regard to placement of the ventilation tube, and
Winfrey explained why they .were placed beyond 10 feet from the
face. According to Nelson, Winfrey told him that he thought he
(Nelson) had an attitude problem. Winfrey said' there seem to be
"turmoil" between Nelson and Kirk and he asked Nelson if he wanted
to transfer to another section. Winfrey said that Kirk had not
asked him to transfer Nelson, and that he was unaware that earlier
in the day Wright and Cummings had offered Nelson work in another
section. Winfrey said that he asked Nelson if he wanted a transfer
but turned down Johnson's request for transfer, as Nelson was calm
and Johnson was "belligerent." Winfrey did not· take any action to
have Nelson transferred.
The following day Danny Meadows, the scoop operator,
inspected the face area and noted that it was not rock dusted
within 40 feet of the face. He testified that there was no rock
dust available to correct the problem. Meadows brought the
problem to Kirk's attention and Kirk told Meadows that he would
order some rock dust. Nelson asked Kirk if he was going to get
some rock dust. Meadows testified that Kirk told that him
"(Nelson) was crying about the place not being rock dust(ed)."
(Tr. 114). Nelson reported the violation to the Safety Committee
and another Section 103(g) complaint was filed.
On January 28, 1986 MSHA Mine Safety and Health Inspectors
Martin Copley and Karl Jenkins came to the mine to investigate
the Section 103(g) complaints filed by the Union at Nelson's
request. Nelson and Danny Meadows told the Inspectors in the
presence of ·Kirk about the failure to properly rock dust the face
area. Meadows also told Inspector Jenkins that it had taken 16
bags of rock dust to dust the area that had been in violation.
Three citations were issued by Inspector Copley and paid by the
Respondent" They were for failure to maintain ventilation tubing
within 10 feet
the face, failure to rock dust within 40 feet
of the face on January 22, 1986, and for allowing work to
continue on the section without ventilation.
According to the testimony of Meadows there was an occasion
when a State Mine Inspector looked at a scoop after Meadows said
"how about corning over there and looking at it?," as the battery
plugs were loose on the scoop. Meadows testified that after the
mine inspector looked at the scoop, Kirk said that if the scoop
would have been put out of operation then Meadows "would have
beeh shoveling ribs out the rest of the day." (Tr. 123). Kirk,
in essence, testified that he did not remember that incident nor
in essence did he remember making such ~ statement to Meadows. I
adopt the testimony of Meadows in this regard based upon my
observations of the witnesses' demeanor, and in as much as this
testimony was corroborated by May (Tr. 153).

349

On January 29, 1986, when Meadows arrived on the section the
sc.oop was broken. He testified that Kirk told him to get two
shovels and get Nelson as the two of them would be shoveling to
clear the face area and remove coal from the ribs. It was the
testimony of Nelson that only he and Meadows shoveled. They
shoveled for approximately 20 minutes before Kirk told them to
stop.
Nelson also testified that, in the section, prior to this
incident whenever the scoop broke down the miner would be used to
clean up the coal and that there was never any shoveling done
before in the section when the skoop broke down. Kirk's testimony was at variance to that testified to-by Nelson. I adopt the
testimony of Nelson, after having observed and evaluated the
demeanor of both witnesses, and also due to the fact .that
Nelson's testimony was corroborated by May and Meadows.
Issues
1. Whether Complainant has established that he was engaged
in activity protected by the Act.
2. If so, whether the Complainant suffered adverse action
as a result of the protected activity.
3.

If so to what relief is he entitled.
Conclusions of Law

Complainant and Respondent are protected by and subject to
the provisions of the Act, the Complainant as a miner, and
Respondent as operator of the Morton Mine. I have jurisdiction
to hear and decide this matter.
The Commission, in a recent decision, Goff v. Youghiogheny
& Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated
the legal standards to be applied in a case where a miner has
alleged acts of discrimination. The Commission, Goff supra at
1863, stated as follow:
~~
A complaining miner establishes a prima facie case of
prohibited discrimination under the Mine 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

350

activity.
Robinette, 3 FMSHRC at 818 n. 20.
See also
Donovan v. Stafford Constr. Co.v 732 F.2d 954, 958-59
.(D.C. Cir 1984); Boich v. MSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983) (specifically approving the
Commission's Fasula-Robinette test).
Protected Activity
On January 21, 1986 the Complainant questioned Ki1:k concerning the placement of ventilation tubing.
On January 22, 1986
the Compainant asked Kirk if he was going to get some rock dust.
On January 28, 1986 the Complainant told MSHA Inspectors Mark
Copley and Carl Jenkins about the failure to properly rock dust
the face area.
I conclude that all of the these activities were
safety related and are protected by the Act.
Adverse Action
In his Post Hearing Brief, Complainant complains of three
separate actions by Respondent:·
1.
After Complainant questioned Kirk about the position of
ventilation tubing on January 21 he was "set up" for possible
disciplinary action.
I accepted Complainant's testimony that Kirk had told him to
take the man trip to get additional ventilation tubing I also
accepted Complainant's testimony that when he returned to the
section Kirt informed him that it was illegal to take the man
trip off the section and denied that he had told Complainant to
take the man tr
I also accepted Pauley's testimony that Kirk
that he d
not tell Complainant to take the man trip and
that it was
ainst t
law for Nelson to take the man trip from
the sectio0.
n this context, I find that Kirk's statement to
Complainant and Pauley could reasonably tend to intimidate
Complainant and cause fear of reprisal.
As such, I find Kirk's
statements to constitute an adverse action [See Moses v. Whitley
c;_;;_~-'--~-~~--~-"'-~~--o~n? 4 FMSHRC 1475, 1478 (August 1982)].
2
C
ngs, Wright, and Winfrey discussed with the
Complainant the possibility of transfering him off the section.
Neither Wrightr nor Cummingsff nor Winfrey did discipline,
demote, or transfer Complainant subsequent to his engaging in
protected activ ies on January 21, 1986.
The only overt actions
were discussions that Cummings, Wr
ht and Winfrey had with the
Complainant at which time they raised the possibilty with
Complainant of him transfering off the section to another section.
These discussions, by management officials, coming soon after
Complainant engaged in protected activities, surely tended, in
some degree to cause the Complainant to feel intimidated.
As
such, I conclude that they constitute an adverse action.

351

3. On July 29 1986 Kirk required Complainant to shovel the
face area for approximately 20 minutes.
Ron Winfrey, Respondent's Shift Foreman, testified that
shoveling coal is part of coal mining and that the only crew
member he would exempt would be an electrian.
He further testified, in essence, that shoveling is required when a scoop is down.·
It was also his testimony that normally a suttle car operator
shovels coal around a feeder on an average of three to five times
a shift, and that nine times out of ten the shovel car man normally cleans the spillage around the tail piece. These statements might be true with regard to Winfrey's general experence,
but in order to ascertain the specific working conditions in
Kirk's crew, I adopted the testimony of Nelson, May and Meadows,
as being crew members, they would have personal knowledge of the
work conditions in the crew. As such, I found that prior to
January 29, 1986 no·crew members had been required to shovel coal
upon the breakdown of the scoop. Accordingly, I find that an
adverse action occured when Kirk required Compainant to shovel
coal.
Motivation
I have concluded, infra, that the discussions of Cummings,
Wright, and Winfrey with Complainant on January 21, 1986, concerning a transfer out of Kirk's section, constituted an adverse
action.
In as much as Kirk did not tell them to speak to Nelson
in this regard, and they acted soley on their own initative, the
inquiry must focus on their motivation rather than on Kirk's
motivation. These discussions took place a short time after
Complainant had engaged in protected activities.
Also, although
Jo.hnson and Nelson had an agrurnent over the placement of the
ventilation tubing, Wright, Cummings, and Winfrey initiated a
discussion about a transfer only with Nelson.
However, Winfrey
indicated that Johnson had initiated with him a discussion of
a tranfer, and he considered talking about a transfer with Nelson
and not Johnson, as the latter was still
lligerent. Winfrey
indicated that he wanted to transfer Complainant as there was
"turmoil" between him and Kirk. Kirk had told Wright and
Curnmings that Complainant was the problem and Wright testified
that he wanted to talk to the Complainant in order to try to
solve the problem before it got out of hand.
After the discussions that Wright,. Cummings, and Winfrey had with the
Comp inant, with regard to a transfer out of the section, no
futher action was taken by them to transfer Complainant.
I thus
find that their motivation in offering to transfer Complainant
from the section was not related to safety complaints.

352

The adverse action against the Complainant by Kirk on
January 21, 1986 in falsely accusing him of illegally using a man
trip was committed almost immediately after Complainant had engaged
in a protected activity. It establishes, prima facie, that this
adverse action on Kirk's part was motivated by Complainant's
protected activity. Respondent has not offered any evidence to
rebut this prima facie finding. Accordingly, it is concluded,
that this adverse action on Kirk's part was motivated solely by
Complainant's protected activity.
On January 29, 1986, one day after Complainant engaged in a
protected activity in the presence of Kirk, Kirk had him shovel
coal. Further, I adopted the testimony of Meadows that on one
other occasion Kirk had told Meadows that he "would have been
shoveling ribs all day", if a piece of equipment would have been
taken out of service by a State Inspector as a result of comments
that Meadows had made. Also, I have adopted the testimony of
Meadows that after Complainant asked Kirk if he was going to get
some rock dust, that Kirk told Meadows that Nelson was "crying
about the place not being rock dust(ed)". Also, I have adopted
the version testified to by Nelson, May and Meadows that in
Kirk's section miners in the past had not done any shoveling when
the scoop had broken, and that only Complainant and Meadows, who
also had complained to Kirk about the lack of rock dust on
January 28, were singled out by Kirk to shovel coal on January
29.
I thus find, based on the above, that the Complainant
established a prima facie case that Kirk's action, in having him
shovel coal for 20 minutes on January 29, was motivated by the
former's protected activity. I further find that Respondent has
not rebuted this finding.
I therefore find that Complainant has met his burden in
establishing that his being required to shovel coal for 20
nutes on January 29, 1986 constitutes a violation of Section
105(c) of the Act. I also find that Kirk's action on January 21,
1986, accusing Complainant of illegally using a man trip constitutes a violation of Section 105(c) of the Act. The balance of
the al gations in the complaint do not establish a violation of
Seciton 105(c) of the Act.
I have considered the size of Respondel1t 1 s mining operation
and history of violations, as contained in figures submitted by
Complainant and stipulated to by the Respondent. It is significant to note that no previous Section 105(c) violations have been
assessed. I futher find that the adverse actions taken by Kirk
against the Complainant to have been intentional. Based on these
factors as well as the nature of the
rse actions ~stablished,
I find that a penalty of $400 is appropriate.

3

Order
It is ORDERED that:
1.
Respondent shall within 15 days from the date of this
decision post a copy of this decision at the Morton Mine where
notices to miners are normally placed and shall keep it posted
there for a period of 60 days.
2.
Respondent shall pay a penalty of $400 within 30 days of
this decision.

Avram Weisberger
Administrati.ve Law Judge
Distribution:
Jonathan M. Kronheim, Esq., Office of the Solicitor, U. S.
Department of Labor, 4015 Wilson Boulevard, Room 1237A,
Arlington, VA 22203 (Certified Mail)
Mr. Roger Nelson, Box 386, Sylvester, WV 25193

(Certified Mail)

Billy M. Tennant, Esq., U. S. Steel Mining Co., Inc., 600 Grant
Street, Pittsburgh, PA 15230 (Certified Mail)
dcp

354

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB 25 1987
MANALAPAN MINING COMPANY,
contestant

.

v.

CONTES'r PROCEEDING
Docket No. KENT 86-119-R
Citation No. 2596792-04; 6/5/85

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

v.

Harlan No. 1 Mine

.:

CIVIL PENALTY PROCEEDING

.

Docket No. KENT 86-130
A.C. No. 15-05423-03563
Harlan No. 1 Mine

MANALAPAN MINING COMPANY,
Respondent
DECISION
Appearances:

Karl s. Forester, Esq., Forester, Forester,
Buttermore & Turner, P.S.C., Harlan, Kentucky
for Manalapan Mining Company;
Theresa Ball, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee
for the Secretary of Labor.

Before:

Judge Melick

These consolidated cases are before me pursuant to
section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801 et. ~, the "Act," to challenge the
issuance by the-Secretary of Labor of one citation and two
withdrawal orders charging the Manalapan Mining Company
(Manalapan) with violations of regulatory standards. The
general issues before me are whether Manalapan violated the
cited standards and, if so, whether the violations were of
such a nature as could significantly and substantially contribute to the cause and effect of a mine safety or health
hazard, i.e., whether the violations were "significant and
substantial".
If violations are found it will also be
necessary to determine the appropriate civil penalty to be
assessed in accordance with section llO(i) of the Act.
During the course of an investigation of a June 4, 1985,
fatal rib fall accident at the Harlan No. 1 Mine several
withdrawal orders and citations were issued, three of which
355

are before me in these proceedings. At hearings the parties
agreed to settle Order No. 2594901 for the $1,000 penalty
proposed by the Secretary. I have considered the representations and documentation submitted in support of the proposed
settlement and find that it meets the criteria set forth in
section llO(i) of the Act. Accordingly the proposed settlement of Order No. 2594901 is approved.
Citation No. 2596792 alleges a "significant and substantial" violation of the operator's roof control plan under
the standard at 30 C.F.R. § 75.200 and charges as follows:
Dangerous loose overhanging ribs were present in
all active workings of the 004-0 section, and also
the supply track from the subject section to the
No. 4 cross entry belt outby. This condition was
the contributing factor which led to the issuance
of imminent danger order issued during a fatal
accident investigation; order No. 2596791 issued
6-5-85.
The citation was subsequently modified.on May 14, 1986
as follows:
This violation is hereby modified to read item (20)
negligence as being (e) (Reckless Disregard) because
the operator had been warned prior to the fatal
accident by two (2) other persons being injured and
by previous citations issued that the ribs were
dangerous and also memo written concerning rib controls and no action was taken until after the fatal
to control ribs in high coal bed. Also modified to
read item (21) Gravity (A) as being (occurred)
because (1) man was killed as a direct result of no
measures taken to control ribs in the high coal
bed.
The cited standard, 30 C.F.R. § 75.200, provides in part
that "the roof and ribs of all active underground roadways,
travelways, and working places shall be supported or otherwise controlled adequately to protect persons from falls of
the roof or ribs."
There is indeed no dispute that on June 5, 1985, the
date of the violation alleged in the citation at bar, loose
and overhanging ribs were present in the active workings of
the 004-0 section of the Harlan No. 1 Mine.
Indeed Mine
Superintendant Ralph Napier admitted that there were a
"pretty lot" of loose and overhanging ribs in the section on
June 5. The violation is accordingly proven as charged.
The evidence is also undisputed that such loose and overhanging ribs existing in active workings constitute a serious
356

hazard.
In of the absence of any rib control in this section
of the mine where the extracted height was 12 feet, where
they were retreat mining (and not all of the pillars were
being extracted during the process thereby creating excess
pressure on the ribs), and where there existed a rockband
some 2 feet from the mine roof thereby placing additional
pressure on the 2 feet of coal between the roof and rockband,
the violation was also "significant and substantial."
v. Mathies Coal Company, FMSHRC 1 (1984).
Whether this violation was caused by Manalapan's negligence depends on whether Manalapan officials knew or should
have known of the violative conditions, or regardless of
whether they knew or should have known of those conditions
whether they nevertheless failed to follow safe industry
practice in providing additional rib support under the
circumstances as they existed on June 5, 1985.
The Secretary argues that the dangerous loose and overhanging ribs cited on June 5, 1985, had existed since before
the fatal rib fall at around 2:45 p.m. on June 4, 1985.
According to Inspector Ronny Russell of the .Federal Mine
Safety and Health Administration (MSHA) the overhanging rib
conditions in the 004 section were about the same on June 5
as they were on the date of the fatality June 4. Russell was
in the 004 section on June 4 after the fatal accident and
testified that he then saw dangerous, loose overhanging ribs
throughout the active working section. Rus
1 was however
the oniy witness to claim that he actually saw such dangerous
loose and overhanging ribs on June 4. Moreover Russell never
did issue an order or citation for these alleged conditions
on June 4.
It is also interesting that although Russell had
been the regular MSHA inspector at the Manalapan Mine and had
in
ct inspected it on the preceding May 22nd and May 30th
1985, he had never issued any citations for roof or rib
violations. All of the remaining witnesses who were present
in the cited section on June 4, disagreed moreover with
Russell's observations.
Frank Curry a Manalapan roof bolter was working in the
vicinity of the fatal accident before it occurred. While he
thought there may have been some loose ribs behind them none
were overhanging. According to Curry the deceased had tested
the ri~ that fell with a steel drill. Moreover the rib was
"straight up and 1own" with no cracks or fractures to be
seen.
Richar3 Cohelia, the Manalapan Saf
Director, did not
remember seeing any loose or overhanging ribs in the 004 section after the accident. According to Cohelia the conditions
had significantly deteriorated overnight so that on June 5,
1985, several loose ribs had slabbed out from the permanent
rib.

357

Johnny Helton the Manalapan General Mine Foreman, and
Ralph Napier both went into the 004 section shortly after the
accident on June 4 and neither saw any loose or overhanging
ribs in that section. They both returned on June 5, and
found that some of the ribs had since rolled out from the
weight of the roof and there were loose and overhanging ribs
at that time.
Gary Cochran the 004 Section Foreman on June 4th testified that the section was being retreated in an area of 12
foot coal. Cochran entered the mine at around 6:45 that
morning to perform his on-shift examination. They began
cutting coal at around 11:30 that morning and were in the
second cut when they saw some loose ribs. The continuous
miner was then moved in. According to Cochran the ribs were
then trimmed back to an angle of 45 degrees and they "looked
good" when the miner was backed out. Cochran also saw the
deceased and Curry each take down some loose coal with an 11
foot drill steel bar. Cochran testified that he then checked
both the right and 1 t side visually before he left. 15
minutes later he heard that Boggs had been killed in the
heading.
According to Cochran there was only 1 overhanging
rib in his section which was taken down prior to Bogg's
accident.
Raymond Gross, Jr. was working on June 4, 1985, in the
004 section for Foreman Cochran. According to Gross the ribs
were "in good shape" at that time although there had been
some sloughing.
Within this framework of evidence I do not find that the
Secretary has proven his claim that the loose overhanging
ribs found on June 5v 1985, had existed since before the
fatal accident on June 4th. The Secretary also maintains
however that the o
r was negligent because it had been
warned of the dangerous rib conditions on June 5th by the
fact that two other persons had previously been injured by
rib rollsf by previous citations issued for dangerous ribs,
and also '~from a memo written concerning rib controls and no
action was taken until after the fatal to control ribs in
high coal bed."
The rBcord shows that citations had been issued to
Manalapan on September 4, 1984, for a violation of loose and
overhanging ribs in another section of the mine and again on
October 17, and November 9, 1984, for similar problems.
I
cannot find however that these violations constituted any
notice of the rib conditions more than 6 months later on
June 5, 1985, in another section of the mine. The mere
existence of these prior violations without more, does not
suggest that the operator was negligent on this occasion.

358

In addition, while MSHA Inspector Paul Helton noted on
the citation issued September 4, 1984, that the operator
needed a modification to his roof and rib control plan to
take care of sloughing ribs, this was not made a condition of
abatement nor was the operator subsequently required by MSHA
to so modify its plan.
Indeed the evidence shows that
Inspector Belton's supervisor thought it would be "fruitless
to pursue" such a requirement.
Since MSHA itself therefore
apparently did not deem such a modification to be sufficiently important to compel the operator to make such
changes, either as a condition of abatement or as a condition
in its roof and rib control plan, I find its argument now
tnat the operator wa8 negligent solely for failing to adopt
such changes to be unpersuasive.
Manalapan is not totally without negligence however in
light of its history of rib problems.
The evidence is undisputed that in a 10 to 12 foot coal seam as here there is an
increased danger of bursting ribs.
Here there was also a
history of rib rolls particularly during retreat mining and
only partial pillar recovery.
Moreoever based on the credible expert testimony of MSHA Special Investigator, Lawrence
Layne, it is clear that the additional stresses placed upon
the roof and ribs under such conditions clearly warranted
additional safeguards to protect the miners from rib rolls.
This evidence establishes that safe and accepted industry
practice warranted such measures.
The fact that Manalapan
took no additional precautions, which were shown to be feasible, supports a finding of operator negligence.

Cit:.ttion No. 2596793 a11eges a "significant and substantial" viola ion of the st;JnJard at 30 C.F.R. ~ 75.304 and
charges as follows:

Sufficient and ii.dequatt:: on shift e.;,,.aminations had
not he0n conducted in the 004-0 section, in that on
6-4-85 loose overhanging ribs were present, also
the approv·.c:J roof control plan wa.s not being fully
complied with in that turnposts were not set going
into the pillar
it, and only (3) road~ay posts
were set on l bJock outby the block being mined,
Rnd the power center for subject section was within

· ;o feet of the

llar being ~ined.

Tne c1t;::d stFlndard provides in relevant part

dS

follows:

Al least once during each coal-producing shift, or
more of ten if necessary for safety, each working
sc~ction

shall be examined for hazardous conditions

by certified persons designated by the operator"to

Any such conditions shall be corrected
immediately.

do so.

359

As noted, the Secretary's evidence has been found insufficient to sustain a finding that loose overhanging ribs were
present on the 004-0 section on June 4, 1985. Manalapan
acknowledges however that it was in violation of the approved
roof control plan as cited in that turnposts were in fact not
set into the pillar split and that only 3 roadway posts were
set for 1 block outby the block being mined. The foreman in
charge of the section, Gary Cochran, said that he was not
even aware of the requirement to have line posts set before
the second cut into the pillar. Manalapan also admits that
the power center for the section was indeed within 150 feet
of the pillar being mined. The existence of these violative
conditions either through ignorance or by intent clearly
supports the violation.
The Secretary concedes that these conditions were not
the causative factors in the fatal rib fall on June 4, 1985,
however it nevertheless maintains that the violation was
"significant and substantial." I must agree. It may reasonably be inf erred from the fact that inadequate on-shift examinations were being conducted in the 004-0 section that any
number of hazardous conditions were not being detected. It
may also reasonably be inferred from the failure to have
corrected the two admitted violations that reasonably serious
injuries would·.. result. The violation is accordingly serious
and "significant and substantial." Mathies, supra.

In determining the appropriate civil penalties in this
case I have also considered that Manalapan is of moderate
size and has a moderate history of violations. There is no
dispute that the violative conditions cited in this case were
abated as required by the Secretary. Accordingly I find that
civil penalties of $500 for Citation No~ 2596792 and $500 for
Order No. 2596793 are appropriate.
ORDER

Manalapan Mining Company is hereby ordered to pay civil
penalties of $2,000 within 30 days of the date of this

decision.

~/\ r,
I

~

\

\ \J_ f. -,. . \

,\,\~\

Gairy Me\ick
\
Administrative Law Judge

360

.,,, ..

.

Distribution:
Karls. Forester, Esq., Forester, Forester, Buttermore &
Turner, P.s.c., Forester Building, First Street, P.O. Box
935, Harlan, KY 40831-0935 (Certified Mail)
Theresa Ball, Esq., Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
rbg

361

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OfFICE OF ADMINISTRATIVE LAW JUDGES
333 W

COl~AX

AVENUE, SUITE 400

DENVER, COLORADO

SECRETARY OF LABOR,
MINE SAF'E'PY AND
ADMI NISTRJ\TION

FEB 2 5 i987

CIVIL PENALTY PROCEEDING

l:IE~ALTH

(MS HA) ,

Docket No. WEST 86-120-M

A.C. No. 42-01452-05513

Petit. J.<.'nE'r

v.
STAKER

80204

Staker-Beck Street Mine

~;
: ';y.Jc:·r;wcr I.()!'.;
1 NU;!;' 'c< i\'t'l:D,

Pl\\IT'.·~C

COMP!V~Y,

He::; r"; n ~It' f i t

Appearances:

M.)C(JC>rc:t

lJ,S.

A. Mil i.t=.,r,

DP.partment. of
h:: t. i t i u n t~ r ;

F<~q., Of fie(;:. of Uit:~ Solicitor,
r.ah•n, l.l\":'n\u::r, Colorado,

t or
Mr. (Jc,;al D. Gillen, Staker- Pa.vin•J Con·::;truction
C<:,;1,,t-1ny, Tnr:. 1 c;i!Jt LEJ.k
City, UL.'1.!t,

Before:
The Sec.rt::"tnry of LCibor, on behaU: of t;·1c Min
Safety and
lh::.alth Administr:.:i\· icm, chan3t;s r(·c:;po~·1dent with violating a safety
regulation promuL·:-iLt:'<"t 1rnd~~r tiv:: F•"cieraL Mi11c :;af:t:•ty and H•"alth
Act of 1977 1 3U L'.S.C, '? BOl
c S f ' ' , , (the "!>.ct").
Af:tE.;r notic
tot
place in Salt L1\e Ci1; 1

p.'tr,L 1 ··~,

.:.n

·•:..,

The partic:::3 waiv .1 their:

Z'J

h, ..•1rinq on rhc:: u;r:•rits
l l , l9f36.

t.ook

11<tq1·.1.

rLJh! to fil:-=: post·-trial brj2fs.

1 s:.oues

The issue:.' .itc: 'w!k'.i:her an aJlr:::0ation of unwa.rront ble
failure can b: ,., n:.~ ·;L:'rt in.'~ civil pen.:.,lty proc~:e(Jir-.q.
Fcirt·br:or,
wr1ether the \.'J;}>\i(;n W<~.·; of ,:i si.qnificc>nt .1nd ~".ub.;; nt.ial nc1ture.
Finally, what ;i ·i.<t·/ i·:; .1r'P'
r:idtr:: uc.d r th,·: 'i.!::.:·im:-;tance~:: in
this case.

§

This citatton alleges respondent violated 30 C.F.R.
56.9087 which pcovides as follows:
§ 56.9081 Andibl
'·!.irni.rv; dev1.r::c'~~; a.nd <:lack-up nlar.ms.
Heavy duty mobile cqui.pI~~,;,nt. sh;-dl be pro1.;id·''1 with audible
warn i.ng d~Yv ic•:::..:;..
When Lhe eper a tc,r .;)f .sue h equipment has

362

an obstructed view to the rear, the equipment shall have
an automatic reverse signal alarm which is audible
above the surrounding noise level or an observer to signal
when it is safe to back up.
eithe~

Admission
At the commencement of the hearing respondent admitted the
violation (Tr. 4, 5).
Summary of the Evidence
William W. Wilson, a duly authorized representative of the
Secretary and experienced in mining, inspected respondent on
December 16, 1985 (Tr. 9, 10).
During the inspection he issued Citation 2644141 when he
observed a Michigan 275C front-end loader without an audible
alarm (Tr. 11; Ex. Pl). McCoy Evans was operating the vehicle.
During the course of two days the inspector observed a laborer
and a mechanic in the general area of the loader (Tr. 11). The
inspector also did not see anyone spotting for the loader when it
backed up (Tr. 11). The back-up alarm was not audible (Tr. 12).
In the previous week the operator had turned in several daily
reports to the pit foreman (Tr. 13).
The inspector evaluated the operator's negligence as
moderate when he wrote the citation (Tr. 14). The following day
he confirmed that maintenance reports on the defective vehicle
had been written on December 9, 10, 11 and 13 <Tr. 15, 16). On
the final citation the inspector accordingly marked the negligence as high and further indicated that the circumstances showed
a careless disregard by the operator since no repairs had been
made (Tr. 16, 17>.
The hazard involved here could reasonably kill or maim a
miner (Tr. 17, 18). Respondent abated the condition in six days.
It was necessary to obtain a part <Tr. 18).
The inspector indicated he has had some problems with
respondent's employee Van Dyke concerning compliance with safety
regulations (Tr. 19). But there has been a decline in the number
of citations issued against respondent.
This has been attributed
to the company's efforts (Tr. 20). Apparently a communication
problem caused the delay in the repair of the alarm (Tr. 21).
Respondent has, on the average, 12 employees (Tr. 24).
Orval D. Gillen, testifying for respondent, indicated he is
the company's safety and training engineer (Tr. 28, 29). The
witness identified the various employees on the site at the time
of the inspection (Tr. 20, 29).

363

Mr. Gillen believed the equipment operator, as they normally
do, should have immediately notified the shop people of the
defect (Tr. 30, 31). The notification can be by telephone or
radio, located at the crusher (Tr. 31). The instructions to the
operators to proceed in this fashion are verbal and were given
during training (Tr. 32).
The pit's size is about 100 by 300. When the citation was
issued there were six people at the site {Tr. 32, 34).
After this citation the operators involved were again
verbally instructed as to the proper procedure CTr. 33).
The company employs as many as 500 people but most of them
are under OSHA's jurisdiction (Tr. 34).
Payment of the proposed penalty would not affect the
company's ability to continue in business (Tr. 25, 37).
Discussion
Since the operator ~dmits the violation the citation should
be affirmed.
~n additional issue concerns respondent's contest of the
allegations of unwarrantable failure.
The ruling at the hearing
is reiterated at this time: unwarrantab
failure cannot be
litigated in a civil penalty proceedings, Clinchf ield Coal
Company, 2 FMSHRC 290 (1980).

A further issue concerns whether the violation was
significant and substantial nature.

a

A decision as to whether a violation has been properly
designa
as being significant and substantial must be made in
light of the Commission's rulings in that area. The term
"significant and substantial" was first defined by the Commission
in National Gypsum Co., 3 FMSHRC 822 (1981) at page 825, where
the Commission stated:
We hold that a violation is of such a nature as could
significantly and substantially contribute to the cause
and effect of a mine safety and health hazard if, based
upon the particular facts surrounding that violation,
there exists a reasonable likelihood that the hazard contributed to will result in an injury or an illness of a
reasonably serious nature.
In this case the facts fail to establish that was a reasonable likelihood that an injury of a reasonable serious nature
would result from the violative condition. The evidence es-

364

tablishes there were workers in the 100 by 300 pit. But, it is
impossible'to ascertain if the described measurements are in feet
or yards. Further, no evidence indicates any workers were
directly in danger due to the defective back-up alarm on the
loader.
For the foregoing reasons the S & ? allegations should be
stricken from the citation.
The final issue concerns the appropriate penalty to be
assessed.
The statutory criteria to assess a civil penalty is
contained in Section llO(i) of the Act. The provision, now
codified as 30 u.s.c.A. § 820(i), provides as follows:
The Commission shall have authority to assess all civil
penalties provided in this Act.
In assessing civil
monetary penalties, the Corrunission shall consider the
operator's history of previous violations, the appropriateness of such penalty to the size of the business
of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue
in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a
violation.
In relation to the criteria the computer print-out shows
that respondent incurred 19 violations for the two year period
ending December 15, 1985. This showed an improvement over the 28
violations assessed before December 16, 1983. The penalty
hereafter assessea appears appropriate in relation to the size of
the business of this small operator. While the operator at times
has as many as 500 employees, the majority of them are not under
MSHA's jurisdiction.
In fact, there were apparently only six
employees at this site. The operator was negligent since four
maintenance reports had mentioned the defect. The operator has
indicated that the imposition of the proposed penalty of $700
would not affect the company's ability to continue in business.
The gravity of the violation should be considered as high because
a serious injury or a fatality could result. Under the broad
umbrella of good faith it is to respondent's credit that it
abated the violation. Further, the respondent at this point has
demonstrated a certain dedication to the safety of its workers.
On balance, I deem that a civil penalty of $250 is an
appropriate penalty.

Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portion of this decision, the following conclusions
of law are entered:

365

1.

The Commission has jurisdiction to decide this case.

2.

Respondent violated 30 C.F.R. § 56.9087.

3. The allegations that the violation was significant and
substantial should be stricken.
law I

Based c~ the foregoing findings of fact and conclusions of
enter the following:
ORDER

1. The allegations that the violation was significant and
substantial are stricken.
2.

Citation 2644141, as amended, is affirmed.

3.

A civil penalty of $250 is assessed.

4. Respondent is ordered to pay the sum of $250 to the
Secretary within 40 days of the date of this decision.

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)
Staker Paving & Construction Company, Inc., Mr. Orval D. Gillen,
P.O. Box 27598, Salt Lake City, UT 84127 (Certified Mail)

/bls

366

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

20006

February 26, 1987
DJSCRfMINATION PROCEEDING

DANNY JOHNSON,

Complainant
Oocket No. KFNT 87-68-D

v.

BARB CD 87·-04

LAMAR MINING

COMP~NY

ANO
Gotts Creek Strip Mine

LARRY WTLLT.l\MS,
GRAHAM MAR'J'IN l.i.~lD

WILLIA..IV!S

& ~viARTIN

COAL CO,,

Respondent

Before:

Judge Merlin

The Complainant has filed a motion to withdrAw his complaint
and dismiss this proceeding on the g~ounds that a settlement has
been reached with the operator.
The settlement agreement
requires the operator to pay $5,000 e.o the Complainant in four
equal installments, the final payment to be made May 18, 1987.

The settlement is Approved as it is in ~ccord with the
purposes of the Federal Mine Qafety and Health Act of 1977.
Accordingly, the motion to
is

is

withd~aw

GRAN~FD

and this case

DISMISSRO.

~~~~
Paul

r>k~rl in

Chief Administrative

Judge

~aw

l)istribution:
T'ony Oppegard, Psq., Apr.1a l.ach i ;:in '«:: s''.=t cell & Detense Fund of
Kentucky, Tnc., P. 0. Box 360, Hazard, KY 41.701
(Certified
Mail)
Bobby Williams, Psq., ~,amac •,Jining
Hindman, KY
41822
'~E:':ti i.ed Mail)
Larry P,

Williams, Lamar

~·1ining

ni_1 ,

P.

0. Box

Company/WilliB.rns

&

20,

Martin Coal
41822

Company, Inc., Willi.ams f3ui1ding, Main ''.Lreet 1 r<.i.ndman, '\Y

(Certified Mail)
C. Graham Mattin,
Mail)

~.

0. Box 507, Hindman,

367

~Y

41822

(Certified

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

SECRETARY OF LABOR,
MINE SAF8TY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

80104

FEB 271987

CIVIL PENALTY PROCEEDING
Docket No. WEST 85-179-M
A.C. No. 50-01315-05503

v.

Denali Mine

VALDRZ CREEK MINING COMPANY,
Respondent
DECISION
Appearances:

William W. Kates, Esq., Office of the Solicitor,
U.S. Department of Labor, Seattle, Washington,
for Petitioner;
Mr. Don H. Schultz, Valdez Creek Mining Company,
Anchorage,· Alaska,
pro _se.

Before:

Judge Lasher

This proceeding was initiated by the filing of a proposal
for assessment of a civil penalty by the Secretary of Labor
(herein the Secretary) on November 5, 1985, pursuant to Section
llO(a) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. Section 820(a)(l977)(herein the Act).
A hearing on the
merits was held in Anchorage, Alaska on September 8v 1986.
In this matter, the Respondent admits that the violations
charged actually occurred but questions the amount of MSHA 1 s
administrative penalty assessments. ~/
The amount of a penalty should relate to the degree of a
mine operator 1 s culpability in terms of willfulness or
negligencer the seriousness of a violation, the business size of
the operator, and the number and nature of violations previously
discovered at the mine involved.
Mitigating factors include the
operator's good faith in abating violative conditions and the
fact that a significantly adverse effect on the operator's
ability to continue in business would result by assessment of
penalties at a particular monetary level.
Factors other than the
above-mentioned six criteria which are expressly provided in the
Act are not precluded from consideration either to increase or
reduce the amount of penalty otherwise warranted.
l/ One of the 17 Citations involved, No. 2394378, was vacated on
the record by the Secretary at the instance of the undersigned
since it appeared that the pertinent standard had not been
infracted.
368

The Respondent concedes that payment of penalties will not
jeopardize its ability to continue in business. At the outset of
the hearing, it was determined that Respondent has no history of
violations occurring prior to the issuance of the Citations here
involved.
The Respondent is the largest placer gold mine in the State
of Alaska and had 100 employees on its payroll at the time of the
violations. Respondent pointed out, however, that compared to
gold mines in the lower 48 states it was not a particularly large
gold mine, and on the basis of all the evidence it is concluded
that Respondent is a medium-sized mine operator.
No challenge to the so-called "significant and substantial"
charges contained on various of the Citations was made by
Respondent.
The Secretary alleged that several of the
violations, which were issued during the period July 10 through
August 9, 1985, by MSHA Inspector James B. Hudgins, were not
abated promptly and in good faith and such contention will be
determined where appropriate in the discussion of the 16 remaining violations which follows.
Unless specifically discussed and
determined otherwise, the Respondent is found to have proceeded
in good faith to promptly abate the violations in question upon
notification thereof by the Inspector.
·
FINDINGS, CONCLUSIONS AND DISCUSSION
Citation No. 2393637
The standard infracted, 30 C.F.R. § 56.9087 provides:
"Heavy duty mobile equipment shall be provided with audible
warning devices. When the operator of such equipment has
an obstructed view to the rear, the equipment shall have
either an automatic reverse signal alarm which is audible
above the surrounding noise level or an observer to signal
when it is safe to back up."
MSHA Inspector James B. Hudgins, who issued all 17 Citations
involved in this matter on two different inspections, testified
that he com.~enced the first of the two inspections on July 10,
1985, and the second inspection on August 8u 1985 ( T. 17).
The violative condition (or practice) involved is described
in the subject Citation as follows:
"The 988 CAT Front-end loader equipment No. 203 loading
trucks in the B channel section of the pit did not have a
operable reverse signal alarm nor was an observer being
used. The equipment operator has an obstructed view to
the rear (blind spot)"

369

The Secretary established that Respondent's mine
superintendent at the time, Dennis Babcock, "didn't believe" in
the automatic back-up alarm requirement and that the loader
operator had turned the equipment in for repair several times
without success. This is a willful violation which was also
serious since a fatality could have resulted had a miner been run
over by the loader while it was backing up.
Since there was no
"foot traffic", that is miners working in the area on foot, the
probability of such an accident was not likely, and thus a low or
moderate degree of seriousness is attributed.
Based on these findings as to negligence (willfulness),
gravity, and the other 4 assessment criteria required by the Act,
a penalty of $30.00 is found appropriate.
Citation No. 2393638
The standard infracted, 30 C.F.R. § 56.9087 is set forth
above in connection with the discussion of Citation No. 2393637.
The violative condition (or practice) is described as
follows:
"The 35 ton DJB CAT haul truck equipment No. 307 operating
in the pit did not have a operable reverse signal alarw nor
was an observer being used.
The truck driver has an obstructed view to the rear (blind spot)."
While there was no evidence as to the length of time this
violation existed, such is nevertheless found to be willful in
view of the mine superintendent's statement to the Inspector that
he "did not believe" in such automatic back-up alarms and that
such alarms were a "nuisance".
There were no miners working foot around the equipment.
However, had the equipment backed over a miner a serious (injury)
or fatality could have occurred.
Because the occurrence of such
an accident was unlikelyp a penalty
$30.00 is assessed.
Citation No. 2393639
The standard infracted, 30 C.F.R. § 56.9087 is the same as
that involved in the first two citations herein discussed.
The violative condition (or practice) is described in the
Citation as follows:
"The Galion Road Grader operating at the mine did not have
a operable reverse signal alarm nor was an observer being
used.
The operator has an obstructed view to the rear.
Equipment No. 502."

370

This violation is found to be of a low degree of gravity
since the Inspector testified that there was no foot traffic in
the area where the grader was operating and that the hazard envisioned was "not likely" to occur. Based on my prior findings
concerning this operator's intransigence with respect to installing automatic backup alarms, this violation is found to be
willful. The violation was not abated in good faith within the
time established by the Inspector, and the cavalier· attitude of
the mine operator with respect to this mine safety standard was
again in evidence in this respect. A penalty of $50.00 is ~ound
to be appropriate.
Citation No. 2393640
The standard infracted, 30 C.F.R. § 56.9022 provides:
"Berms or guards shall be provided on the outer bank
of elevated roadways."
The violative condition (or practice) is described as
follows:
"The elevated roadway from the plant to the slurry tank
with a drop off on both sides upto approximately 50 feet
was not bermed. The road was being used daily by various
pieces of equipment."
The evidence adduced with respect to this violation
indicated that the dropoff on one side of this 175-foot long
roadway was approximately 50 feet and was from 10-15 feet on the
other side. The roadway appeared to have been used for
approximately one month-from the time it was built-and the
Inspector indicated that had a vehicle gone over the side, the
resultant injury could "very likely" be expected to be fatal.
This is found to be a very serious and obvious violation which
resulted from the negligence of the mine operator. The violative
condition described in the Citation was not abated in good faith
by the operator since berms were not installed until approximately three weeks after the period for abatement had run and
only after the Inspector had returned to the mine site. This
violation is thus found to have not been promptly abated in good
faith by the mine operator after being notified thereof.
Respondent presented no rebuttal to the Secretary's allegation
that this was a "serious and substantial" violation. In view of
the deteriorating condition of the roadway, the severity of the
hazard posed by the violation, and the operator's apparent lack
of concern for compliance with mine safety standards, it is
concluded that the Secretary established the prerequisite
elements of proof for "significant and substantial" violations
mandated by the Federal Mine Safety and Health Review Commission
in its decision in Mathies Coal Co., 6 FMSHRC 1 (1984) to wit:
"Cl) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that is, a measure

371

of danger to safety--contributed to by the violation; (3)
a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that
the injury in question will be a reasonably serious nature."
In the premises, the Citation is affirmed in all respects
and a penalty of $150.00 is assessed.
Citation No. 2393643
The standard infracted, 30 C.F.R. § 56.9011 provides:
"Cab windows shall be of safety glass or equivalent, in
good condition and shall be kept clean."
The violative condition (or practice) is described as
follows:
"The windshield on the Teres 72-61 front-end loader (equipment No. 201) was severlly (sic) fractured through out the
viewing area of the operator. The front-end loader was used
daily at the plant stockpile area."
According to the Inspector, the windshield was severely
fractured, visibility was very poor, the loader's driver had
complained about it for "some time", and the condition could
~reasonably likely" result in an accident which "could very well
be fatal." It also appears that the windshield became in such
condition as a result of sun heat or some trauma-not graduallyand that the Respondent had ordered a new windshield which had
not arrived by the time the inspection was conducted. The violative condition was abated promptly and in good faith. The
Inspector, upon observing the windshield, determined not to remove the vehicle from use. While this was a serious, and
"significant and substantial" violation, I find no evidence it
resulted from Respondent's negligence. A penalty of $75.00 is
assessed therefor,
Citation No. 2393544
The standard infracted, 30 C.F.R. § 56.9011 provides:
"Cab windows shall be of safety glass or equivalent, in
good condition and shall be kept clean."
The violative condition (or practice) is described as
follows:
"The front windshield on the 988 B Caterpillar front-end
(equipment No. 203) was fractured through out the operations
viewing area. The loader was operated in the pit area."

372

While the entire windshield was fractured, visibility
through this windshield-unlike that involved in the preceding
violation- was, according to Inspector Hudgins, "still fairly
decent" and the fractures would not increase the possibility of
an accident. No evidence of negligence was preferred. Since
this was not a serious violation, the penalty sought by the
Secretary, $20.00, is found appropriate and is assessed.
Citation No. 2394341
The standard infracted, 30 C.F.R. § 56.12025 provides:
"All metal enclosing or encasing electrical circuits shall
be grounded or provided with equivalent protection. This
requirement does not apply to battery-operated equipment."
The violative condition (or practice) is described as
follows:
"The 110 volt power cable from wash plant control box to
the outside lights was not grounded. The green ground wire
was not connected."
The Inspector testified that while it was unlikely that an
accident would occur as a result of this violation, the hazard
contemplated by the Inspector was "shock" which the Inspector
noted on the Citation could be "fatal." The condition had
existed "a few days or a few shifts" before the inspection and
was due to an electrician's failure to tape up and finish the
connection in question.
I find no basis in the record for
attributing the electrician's negligence to Respondent's
management. The violation is found to be but moderately serious
and the penalty sought by the Secretary, $20.00, is assessed.
Citation No. 2394342
The standard infracted, 30 C.F.R. § 56.12032 provides:
Inspection and cover plates on electrical equipment and
junction boxes shall be kept in place at all times except
during testing or repairs.
The violative condition (or practice) is described as
follows:
"The door for the 220 volt distribution box in the wash
plant electrical control room was not in place. (The box
was energized)."
This violation could have resulted in a fatal electrical
shock hazard.
Several employees were exposed to the hazard and
it was very likely such could come to fruition. This serious

373

violation is thus found to be "serious and substantial", Mathies
Coal Co., supra. There was no evidence of specific negligence on
the part of the mine operator. A penalty of $100.00 is assessed.
Citation No. 2394344
The standard infracted, 30 C.F.R. § 56.9087 provides:
"Heavy duty mobile equipment shall be provided with audible
warning devices. When the operator of such equipment has
an obstructed view to the rear, the equipment shall have
either an automatic reverse signal alarm which is audible
above the surrounding noise level or an observer to signal
when it is safe to back up."
The violative condition (or practice) is described as
follows:
"The D-8K Cat dozer equipment No. 402 operating in the pit
did not have a reverse signal alarm nor was a spotter in
use at this time. The operator has an obstructed view to
the rear. The Ripper screen and size of machine create a
blind spot to the rear- from the operator's."
The hazard envisioned by the Inspector was that the dozer
"could back over someone entering the area" and cause fatal
injuries. However, the Inspector also concluded that it was not
likely that such an accident would occur. As in the case of the
30 C.F.R. § 56.9087 violations previously discussed, this
violation is found to be willful in view of the mine superintendent's lack of belief in back up alarms (T. 99). A penalty of
$30.00 is assessed for this moderately serious violation.
Citation No. 2394378
As previously noted, this Citation was vacated at the
hearing and my bench order approving such CT. 107) is here
affirmed.
Citation No. 2394379
The standard infracted, 30 C.F.R. § 56.11001 provides:
Safe means of access shall be provided and maintained to
all working places.
The violative condition Cor practice) is described as
follows:
"Safe means of access was not provided to the work area in
back of the feed hopper where the operator stands to control
the amount of material the trucks dump when dumping in the
hopper."

374

The employee directing the dumping could have fallen 35 feet
since there was no ladder or work platform for him to stand on.
This practice occurred continually during the shift and had been
going on for one or two months.
Had the employee lost his
bal~nce it was reasonably likely that he would fall backwards and
sustain injuries which could have been fatal (T. 121). The mine
superintendent admitted to the Inspector that he should have
noticed the hazard and conceded that it was very likely that
someone co;_;ld have fallen and sustained very ser iou:s injud.E~S.
~ccordingly, this serious violation is also found to be "significant and substantial" and to have resulted from Respondent's
negligence.
A penAlty of $125.00 is assessBd.
No.

239

61

The standard infracted, 30 C.F.R. § 56.15003 provides:
All persons shall wear suitable protective footwear when
in or around an area of a mine or plant where a hazard exists which could cause an injury to the feet.
The violative condition (or prrlcticel
follows:

is described as

"The warehouse person was wearing tio:nnj s shoes in the ware·house storage and shop area.
'l'h is person is required to
lift and store various heavy items that could injure a
persons feet."
The warehouseman, who customarily han.J l
he-av y objects, had
been issued steel-toed safety shoes by Respondent which he had
available at the mine.
However, mine supervision had not required him to wear the safety shoes even though the warehouseman
rr::9ularly wore t
tennis shoes ('r. 124) . . 'rhis is found. to be a
moderately serious violation jeopardizing but. one miner wN,ch
resulted from supervisorial negJigence.
A penalty of $30.u6 is
assessed.
No.

2394562

The standard infracted,

30 C.F.R. § 56.9054 provides:

Berms, bumper blocks, safety hooks, or similar means shall
be provided to prevent OV'.:>rtravel and overturning at dumping locations.
The violative condition (or practice)
follows:

is described as

The bumper block at the main feed bopper was covered with
material and no longer effective to prevent overtravel and
overturning at this dumping 101...~ation.
This dumping location
was used on a daily basic [sic] by 25 ton and 35 ton haul
trucks."
11

37 5

The Inspector testified that it was likely that a truck
might back into the hopper. A remote possibility existed that an
employee who regularly works on a shaker screen in back of the
hopper might become apprehensive and fall or leap from his
position to the ground- a 25-30 foot drop. There was no specific
evidence as to negligence. The violation was abated approximately two hours after the abatement period expired. I find that the
Respondent was not negligent in the commission of this violation
and that Respondent, in a relatively reasonable manner, abated
the same. The $20.00 penalty urged by the Secretary is assessed.
Citation No. 2394564
The standard infracted, 30 C.F.R. § 56.11002 provides:
Crossovers, elevated walkways, elevated ramps, and stairways
shall be of substantial construction provided with handrails, and maintained in good condition. Where necessary,
toeboards shall be provided.
The violative condition (or practice) is described as
follows:
"The walkway from the wash plant control booth to the walkway around the dump hopper has the middle section of handrail missing and no toeboards were provided. Falling rock
was observed falling from the trucks when dumping on this
walkway and rolling over the edge approximately 25 feet
below where clean up work is required."
The purpose of a toeboard is to prevent rocks, tools and
other materials from falling on miners working 25 feet below the
walkway; the purpose of handrails (midrails) is to prevent
persons from falling off the walkway. The record does not permit
a finding of negligence on the part of Respondent in the
commission of this serious violation. A penalty of $50.00 is
assessed.
Citation No. 2394565
The standard infracted 0 30 C.F.R. § 56.16005 provides:
Compressed and liquid gas cylinders shall
a safe manner.

secured in

The violative condition (or practice) is described as
follows:
"One compressed gas cylinder located in the shop at the
welding station was not secured."
The Inspector testified that the unsecured 80-lb cylinder
could have fallen on someone's foot with the possible result of a
bruised foot or broken toe. This violation is found to have a

376

low degree of gravity due to the remoteness of the hazard and the
type of injuries which might have resulted therefrom. The
violation is solely attributable to the unforeseen negligence of
an employee who apparently went on a break without first securing
the cylinder. ·Accordingly, I find no negligence imputable to
Respondent for this violation. A penalty of $10.00 is assessed.
Citation No. 2394566
The standard infracted, 30 C.F.R. § 56.18006 provides:
New employees shall be indoctrinated in safety rules and
safe work procedures.
The violative condition (or practice) is described in the

Citation as follows:
"A employee was observed standing on the top handrail of the
railing around the main feed hooper. It is approximately
30 feet to the ground behind where the employee was standing. Also there is steel beams, electric motors and pumps
located at the bottom. The employee was not properly trained in safe work procedures for this job."

The record indicates that the employee in question advised
the Inspector that he engaged in the unsafe practice ldfrequently," that he had not been trained in this aspect of his job,
and that he had never been told not to stand on the handrail.
The Inspector indicated that it was very likely that th~ employee
could have fallen because of the vibration and the employee's wet
shoes. Respondent is found to have been negligent with respect
to this violation which also is found to have created a serious
safety hazard. In view of the likelihood of the accident
contemplated actually happening, this violation is found to be
significant and substantial. The Citation is affirmed in all
respects and a penalty of $200.00 is assessed.
Citation No. 2394567
The standard infracted, 30 C.F.R. § 56.12016 provides:

Electrically powered equipment shall be deenergized before mechanical work is done on such equipment. Power
switches shall be locked out or other measures taken which
shall prevent the equipment from being energized without
the knowledge of the individuals working on it. Suitable
warning notices shall be posted at the power switch and
signed by the individuals who are to do the work. Such
locks or preventive devices shall be removed only by the
persons who installed them or by authorized personnel.
The violative condition (or practice) is described as

follows:

377

.~"Lock

out measures was not done by the w~sh plant operator
when cleaning the water nozzels (sic) from the shaker
screen. The power switch was in the energized position.
Employee was observed standing in the screen plant."

This Citation was issued on August 9, 1985, the final day of
Inspector Hudgins' second inspection. The hazard contemplated by
the Inspector was the shaker screen becoming energized-which
could have thrown the miner in question off balance leading to a
fall of some 6 to 15 feet. The Respondent had not instructed the
miner to lock out th0 main control switch ~nd Respondent's
superintendent, Babcock, admitted it had not been policy to lock
out in such circumstances. There is no specific evidence in the
record from which to gauge the likelihood that the hazard contributed to would result in an injury. However, Respondent did
not challenge this allegation and accordingly, it is concluded
that this violation was significant and substantial. The
violation, otherwise, is found to be but moderately serious and
to have resulted from Respondent's negligence.
A penalty of
$50.00 is assessed.
ORDf:.::R

1.

Citation No. 2394378 is vacated.

2. The remaining 16 Citations hereinabove discussed are
affirmed in all respects.
3. Respondent, if it has not previously done so, shall pay
the Secretary of Labor within 30 days from the date hereof the
penalties hereinabove individual.ly assessed in the total sum of
$990,00.

;:f;,..'d~~.~ d'. ~*~(,</ /l Michael A. Lasher, Jr.
Administrtive Law Judge
Distribution:

William W. Kates, Esq., Office of the Solicitor, U.S. Department
of Labol'., 8003 F'ederaJ

Building, Seattle, WA

98174

(C(::rtified

Mail)
Valdez Creek Mining Ct®pany, Mr. Don H. Schultz, General Manager,
610 East Fourth Avenue, Anchorage, AK
99501 (Certified Mail)

/bls
ti U.S GOVERNMENT PRINTING OFFiCE:l '3 8 7 ·l 81 · 2 2 4'

378

6 3 OO2